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1 Competences and Responsibilities of States vs. Right to Leave and Return OAS/IOM introductory course on the human rights of migrants, including migrant workers and their families Washington DC - March 6, 2008 Katarina Tomolova International Migration Law and Legal Affairs Department, IOM Geneva

1 Competences and Responsibilities of States vs. Right to Leave and Return OAS/IOM introductory course on the human rights of migrants, including migrant

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Page 1: 1 Competences and Responsibilities of States vs. Right to Leave and Return OAS/IOM introductory course on the human rights of migrants, including migrant

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Competences and Responsibilities of States vs. Right to Leave and Return

OAS/IOM introductory course on the human rights of migrants,

including migrant workers and their familiesWashington DC - March 6, 2008

Katarina Tomolova International Migration Law and Legal Affairs Department, IOM Geneva

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States and Migrants

States’ sovereignty vs. Human Rights of Migrants

State has the power to determine:

Nationality Admission Residence Detention Removal / Expulsion of non-nationals Security / Border control measures

Fundamental principles: •Power to manage migration must be exercised in full respect of fundamental

HR •Power to manage migration must be exercised in full respect of international

commitments

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State sovereignty

Sovereignty as a concept of international law has three major aspects: external, internal and territorial. The external aspect of sovereignty is the right of the State freely to determine its relations with other States or other entities without the restraint or control of another State. This aspect of sovereignty is also known as independence. The internal aspect of sovereignty is the State’s exclusive right or competence to determine the character of its own institutions, to enact laws of its own choice and ensure their respect. The territorial aspect of sovereignty is the exclusive authority which a State exercises over all persons and things found on, under or above its territory.

IML Glossary on Migration

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STATE OBLIGATIONS TO NON NATIONALS

• HR are inalienable - not absolute• Derogation in times of emergency (Art 4. ICCPR) • HR instruments distinction between national and non

nationals, regular & irregular migrants

Citizens

Regular migrants

Irregular migrants

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Rights that cannot be derogated

• Right to life • Prohibition of genocide • Prohibition of slavery / slave trade • Prohibition of torture• Prohibition against arbitrary detention • Prohibition against racial discrimination • Right to self-determination • Right to humane treatment as a detainee • Prohibition against retroactive penal measures • Right to equality before the law • Principle of non-refoulement • Right to freedom of thought and religion

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States’ Competences

State has the power to determine: Nationality Admission of non-nationals Residence Detention Expulsion of non-nationals

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Nationality

• Nationality is a juridical and political link that unites an individual with the state

• It is for each state to determine under its own laws who are its nationals (1930 Hague Convention)

• Contracting states shall as far as possible facilitate the assimilation and naturalization of refugees (1951 Geneva Convention)

• Convention on the Reduction of Statelessness required bestowal of citizenship under certain conditions when the person would otherwise be left stateless.

• Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures (Convention on the Nationality of Married Women)

• Naturalization largely depend on domestic law

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Right to admit

- A migrant has the right to leave own country

- No international obligation on a State admit a non national

- Categories of persons able to assert right of return limited to citizens (No one shall be arbitrarily deprived of the right to enter his own country, art 12, sec. 4 ICCPR)

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Residence • Conditions of sojourn largely depend of the domestic law of each State. • Human rights standards protect aliens

Each State Party to the presents Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (ICCPR, Art 2)

• Amount of rights depends on the status of foreigner • Economic rights of aliens are, however, less firmly established than other human rights

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Detention

• Criminal Detention– Punitive in nature or– Aiming at prevention (e.g.: prevent suspect

from committing a crime or re-offending, etc.)

• Administrative Detention – often under the immigration laws– in practice fewer guarantees and

safeguards against violations

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Detention (“hard” law)

UDHR right to life, liberty and security of person (Art 3)prohibition against arbitrary detention (Art 9)

Art 9 ICCPR (right to liberty) principlesarbitrary detention prohibited

detention only on grounds and in accordance with procedures established by law

right to take proceedings before the court so that lawfulness of detention can be determined

enforceable right to compensation if detention unlawful

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Detention (“hard” law)

Art 16 MWC (extensive procedural rights) arbitrary detention prohibited

detention only on grounds and in accordance with procedures established by law

consular authorities of State or origin, if migrant so requests, to be informed without delay

right to prompt communication with the authorities right to take proceedings before the court so that lawfulness of

detention can be determined enforceable right to compensation if detention unlawful

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Detention and Juvenile Justice

Art 37 CRC: States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

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Detention (“soft” law)

Working Group on Arbitrary Detention Deliberation No. 5 on situation regarding immigrants and asylum-seekers, CHR 56th session, E/CN.4/2000/4 (28 Dec 1999)

Standard Minimum Rules for the Treatment of Prisoners (adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders)

Basic Principles for the Treatment of Prisoners (G.A. res. 45/111)

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (G.A. res. 43/173)

Report of the Special Rapporteur on the human rights of migrants, CHR, 59th Session, E/CN.4/2003/85 (30 Dec 2002)

includes a section on “the human rights of migrants deprived of their liberty” and recommendations

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Right to remove

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise

require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be

represented for the purpose before, the competent authority or a person or persons especially designated by the

competent authority.

(Art. 13 ICCPR)

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Right to remove

• State has a right to remove a migrant from the territory

• Limited by– Principle of non-refoulement– “best interests of the child”– Procedural limitations under international law (Art.

13 ICCPR)– Measures against collective expulsion (Art. 22

MWC)

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Non-refoulement principle

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom

would be threatened on account of his race, religion, nationality, membership of a particular

social group or political opinion.

Art. 33, Convention for the Protection of Refugees, 1951

No State Party shall expel, return ("refouler") or extradite a person to another State where there

are substantial grounds for believing that he would be in danger of being subjected to torture

Art. 3 (1), Convention against Torture, 1984

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• Prohibition of measures of collective expulsion•Expulsion allowed only in pursuance of a decision taken by the competent authority and in accordance with law•Decision on expulsion must be communicated with the migrant workers in the language they understand•Right of migrant workers to submit reasons for the review of the expulsion decision•Right to seek compensation in case of annulation of an already executed expulsion decision•Right to settle claims for and receive any wages and other entitlements despite the performance of expulsion

Art. 22 Migrant Workers Convention

Expulsion of migrant workers

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National Security

• Power of state to defend its security - central feature of state sovereignty – hence, power to derogate

• Migration procedures are becoming tools for combating terrorism

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Right to leave and right to return

1. Everyone has the right to freedom of movement and residence within the border of each State.

2. Everyone has the right to leave any country, including his own, and to return to his country.

art. 13 UDHR

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Right to leave

• Fundamental right?• Applies to nationals and aliens• No distinction based on regular/irregular

departure/entry• Covers any form of travel (temporary, long-term);

purpose is irrelevant• No right of entry (except return to own State)• Right not absolute• Duty of abstention imposed State, but also

positive obligation to deliver travel documents

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Right to leave: restrictions

• provided by law• necessary to protect national security

e.g. art. 35, IV Geneva Convention of 1949 (Right to leave the territory unless the departure is contrary to the national interests of the State.) (see also articles 48 and 49, same Convention)

e.g. art. 17 First Additional Protocol of 1977“2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.”

members of armed forces, holders of State secrets• protection of public order (payment of fines and taxes, military

obligations)• public health (contagious diseases)• protection of rights and freedoms of others (alimony)

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Right to choose residence

• 3rd component of free movement of persons

• Applicable to “everyone lawfully within the territory”

• Applicable to “irregular” migrants having been regularized.

• Not absolute: restrictions based on State security.

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Right to return

• right to enter for first time (jus sanguinis)

• “his own country”: only “national state” or also “state of permanent residence”?

• “arbitrary” deprivation: no convincing illustration

• not subject to restrictions of 12.3 ICCPR

• Individual right vs collective right

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Specific cases of voluntary return

• sick and wounded POWs: art. 109 Third Geneva Convention of 1949

• POWs: art. 118, Third Geneva Convention of 1949

• Civilian population: art. 35 and 49 of Fourth Geneva Convention

• Refugees: voluntary repatriation

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Contemporary issues

• Free movement in regional integration processes (NAFTA, MERCOSUR, Andean Community, etc.)

• prevention of smuggling Restriction to right to leave? (See Palermo Protocol, art. 10)

• prevention of trafficking

• the obligation to return proof of nationality Palermo Protocol against Smuggling MWC Readmission agreements

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Concluding observations

• Freedom of movement: legal norms reflect political situation of 1950s

• State sovereignty in these matters remains largely untouched

• Importance of State security

• Are restrictions still the exceptions to the principle?

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Thank you!

Katarina Tomolova

[email protected]