In multilateral and bilateral relations, some of the oldest and most basic elements and components of international law and practice arise with regard to migrants and refugees.
From time immemorial, whether individually or in groups, whether voluntarily by migration, or forcibly through seeking refuge from armed conflict, people have moved from country to country.
Such movement of people of necessity involves basic issues of sovereignty and territorial integrity of those countries that migrants and refugees seek to enter. Such countries have the sovereign and legal prerogative to permit such entry, to prevent it, or to limit it. By the same token, they have the power to determine the status of such people within their territory.
A concomitant issue in international practice regarding the movement of people is the basic human rights of those who choose to move, who have been deported or banished from their homes, or have run away to seek refuge from life-threatening dangers.
Receiving countries have had to ponder whether and how to receive such refugees and whether to absorb them permanently or otherwise.
All these situations involve the basic elements of international relationships – the human rights of people to move, migrate, seek refuge and safety, and establish homes and settlements, on the one hand, and the sovereign rights and prerogatives of countries to open their borders and accept and absorb them, or to close their borders, detain, or deport them, on the other.
While geographic and demographic situations might be different today, as well as the causes of migration and the need for refuge, the normative, moral, political, and humanitarian challenges – both to receiving countries and to migrants and refugees – remain the same. In fact, current migration and refugee issues and challenges are not new.
Over the years, and based on long experience, international law and practice have developed a series of instruments that aim to set out guidelines as to the rights of the migrants/refugees and the duties of countries faced with waves of migrants and refugees.
Although there is no one, consolidated and comprehensive legal instrument at the international level establishing an obligatory framework for the management of migration, there are legal rules that constrain, regulate, and channel state authority regarding migration. Such rules – which have been created through country-to-country relations, negotiations, and practice – are enshrined in various multilateral and bilateral treaties, declarations, non-binding instruments, or have become part of customary international law
The main principles are set out in the following major international and regional instruments:1
Universal Declaration of Human Rights (1948)2
Article 13 Everyone has the right to leave any country, including his own, and to return to his country.
Article 14 Everyone has the right to seek and to enjoy in other countries asylum from persecution (this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations).
Article 15 Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his.
Bogota American Declaration of the Rights and Duties of Man (1948)3
Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.
Convention relating to the Status of Refugees (1951) as Amended by 1967 Protocol4
Article 1 Definitions: “Refugee”– any person without any geographic limitation who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Article 26 Freedom of movement. Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.
Article 31 Refugees unlawfully in the country of refuge:
- No penalties where their life or freedom was threatened, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
- No restrictions other than those which are necessary until their status in the country is regularized, or they obtain admission into another country.
- Allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Article 32 Expulsion:
- Contracting States shall not expel a refugee lawfully in their territory, save on grounds of national security or public order.
- Expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law.
- Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country.
- Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Article 33 Prohibition of expulsion or return (“refoulement”):
- No Contracting State shall expel or return 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.
- The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Article 34 Naturalization:
- Facilitate assimilation and naturalization of refugees.
- Expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
International Organization for Migration (IOM) (1951)5
With 172 member states (including Israel) and eight observer states and offices in over 100 countries, IOM is dedicated to promoting humane and orderly migration for the benefit of all. It does so by providing services and advice to governments and migrants.
IOM works to help ensure the orderly and humane management of migration, to promote international cooperation on migration issues, to assist in the search for practical solutions for migration problems, and to provide humanitarian assistance to migrants in need, including refugees and internally displaced people.
The IOM constitution recommends:
- provision of migration services at an international level to ensure the orderly flow of migration movements throughout the world and to facilitate, under the most favorable conditions, the settlement and integration of the migrants into the economic and social structure of the country of reception,
- international migration of refugees, displaced persons, and other individuals compelled to leave their homelands, and who are in need of international migration services,
- promote cooperation of States and international organizations with a view to facilitating the emigration of persons who desire to migrate to countries where they may achieve self-dependence through their employment and live with their families in dignity and self-respect.
- promote cooperation of States and international organizations, governmental and non-governmental, for research and consultation on migration issues, not only in regard to the migration process but also the specific situation and needs of the migrant as an individual human being.
Convention relating to the Status of Stateless Persons (1954)6
Defines “stateless person” as someone “who is not considered as a national by any State under operation of its law” and provides important minimum standards of treatment. It requires that stateless persons have the same rights as citizens with respect to freedom of religion and education of their children. For a number of other rights, such as the right of association, the right to employment and to housing, it provides that stateless persons are to enjoy, at a minimum, the same treatment as other non-nationals.
International Convention on the Elimination of All Forms of Racial Discrimination (1965)7
Article 5: every person shall have the right to leave any country, including one’s own, and to return to one’s country;
International Covenant on Civil and Political Rights (1966)8
Article 2 provides that each State Party to the present 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, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Each State Party to the present Covenant undertakes: to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, determined by a competent judiciary or other system, and enforced by the state when granted.
Article 12 provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence; everyone shall be free to leave any country, including his own; no one shall be arbitrarily deprived of the right to enter his own country. The aforementioned rights are subject to safety and national security interests.
Article 13 provides that 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.
UN General Assembly, A/RES/2312(XXII) 1967 – Declaration on Territorial Asylum9
- Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, shall be respected by all other States.
- The right to seek and to enjoy asylum may not be invoked by any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
- It shall rest with the State granting asylum to evaluate the grounds for the grant of asylum.
- The situation of persons referred to in article 1, paragraph 1, is, without prejudice to the sovereignty of States and the purposes and principles of the United Nations, of concern to the international community.
- Where a State finds difficulty in granting or continuing to grant asylum, States individually or jointly or through the United Nations shall consider, in a spirit of international solidarity, appropriate measures to lighten the burden on that State.
- No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.
- Exception may be made to the foregoing principle only for overriding reasons of national security or to safeguard the population, as in the case of a mass influx of persons.
- Should a State decide in any case that exception to the principle stated in paragraph 1 of this article would be justified, it shall consider the possibility of granting to the person concerned, under such conditions as it may deem appropriate, an opportunity, whether by way of provisional asylum or otherwise, of going to another State.
States granting asylum shall not permit persons who have received asylum to engage in activities contrary to the purposes and principles of the United Nations.
African [Banjul] Charter on Human and Peoples’ Rights 198110
- Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
- Every individual shall have the right to leave any country including his own and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health, or morality.
- Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions.
- A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.
- The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic, or religious groups.
Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama (1984)11
Internal procedures and mechanisms for the protection of refugees and to ensure that the national laws and regulations adopted reflect the principles and criteria of the Convention thus fostering the necessary process of systematic harmonization of national legislation on refugees.
UN General Assembly Resolution 40/144: Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live (1985):12
- Aliens shall enjoy, in accordance with domestic law and subject to the relevant international obligations of the State in which they are present, in particular, the following rights:
- The right to life and security of person; no alien shall be subjected to arbitrary arrest or detention; no alien shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law;
- The right to protection against arbitrary or unlawful interference with privacy, family, home, or correspondence;
- Subject to such restrictions as are prescribed by law and which are necessary in a democratic society to protect national security, public safety, public order, public health or morals or the rights and freedoms of others, and which are consistent with the other rights recognized in the relevant international instruments and those set forth in this Declaration, aliens shall enjoy the following rights:
- The right to leave the country;
- The right to freedom of expression;
- The right to peaceful assembly;
- The right to own property alone as well as in association with others, subject to domestic law.
- Subject to the provisions referred to in paragraph 2, aliens lawfully in the territory of a State shall enjoy the right to liberty of movement and freedom to choose their residence.
Convention on the Rights of the Child (1989)13
States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
UN General Assembly Resolution 45/158 – International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)14
- Realizing the importance and extent of the migration phenomenon, which involves millions of people and affects a large number of States in the international community,
- Aware of the impact of the flows of migrant workers on States and people concerned, and desiring to establish norms which may contribute to the harmonization of the attitudes of States through the acceptance of basic principles concerning the treatment of migrant workers and members of their families,
- Considering the situation of vulnerability in which migrant workers and members of their families frequently find themselves owing, among other things, to their absence from their State of origin and to the difficulties they may encounter arising from their presence in the State of employment,
- Convinced of the need to bring about the international protection of the rights of all migrant workers and members of their families.
Article 7 – Non-discrimination with Respect to Rights
States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as to sex, race, color, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.
Article 8 – Human Rights of All Migrant Workers and Members of their Families
- Migrant workers and members of their families shall be free to leave any State, including their State of origin. This right shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others and are consistent with the other rights recognized in the present part of the Convention.
- Migrant workers and members of their families shall have the right at any time to enter and remain in their State of origin.
The right to life of migrant workers and members of their families shall be protected by law.
Cairo Declaration on Human Rights in Islam (1990)15
Every man shall have the right, within the framework of the Sharia, to free movement and to select his place of residence whether within or outside his country and if persecuted, is entitled to seek asylum in another country. The country of refuge shall be obliged to provide protection to the asylum-seeker until his safety has been attained unless asylum is motivated by committing an act regarded by the Sharia as a crime.
Arab League Charter on Human Rights (2004)16
Everyone has the right to seek political asylum in another country in order to escape persecution. This right may not be invoked by persons facing prosecution for an offence under ordinary law. Political refugees may not be extradited.
EU Dublin Regulation 201317
The Dublin Regulation, adopted by the European Parliament and Council on June 26, 2013, coming into effect on January 1, 2014: the Dublin III Regulation establishes practical, working criteria to determine which Member State is responsible for deciding an application for asylum filed by a third-country citizen or a stateless person. The general underlying principle is that any asylum request must be examined by only one Member State. The responsibility to decide on a request falls primarily on the Member State where the applicant has first entered the European Union, with some exceptions.
As described by Wikipedia:
The Dublin Regulation (sometimes the Dublin III Regulation; previously the Dublin II Regulation and Dublin Convention) is a European Union (EU) law that determines which EU Member State is responsible for the examination of an application for asylum, submitted by persons seeking international protection under the Geneva Convention and the EU Qualification Directive, within the European Union. It is the cornerstone of the Dublin System, which consists of the Dublin Regulation and the EURODAC Regulation, which establishes a Europe-wide fingerprinting database for unauthorized entrants to the EU. The Dublin Regulation aims to “determine rapidly the Member State responsible [for an asylum claim]” and provides for the transfer of an asylum seeker to that Member State. Usually, the responsible Member State will be the state through which the asylum seeker first entered the EU.18
UN General Assembly Resolution 69/167 on the Protection of Migrants (2014)19
Calls upon States to promote and protect effectively the human rights and fundamental freedoms of all migrants, regardless of their migration status, especially those of women and children, and to address international migration through international, regional, or bilateral cooperation and dialogue and a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit, and destination in promoting and protecting the human rights of all migrants and avoiding approaches that might aggravate their vulnerability;
Strongly condemns the acts, manifestations, and expressions of racism, racial discrimination, xenophobia, and related intolerance against migrants and the stereotypes often applied to them, including on the basis of religion or belief, and urges States to apply and, where needed, to reinforce the existing laws when hate crimes, xenophobic or intolerant acts, manifestations or expressions against migrants occur in order to eradicate impunity for those who commit those acts and, where appropriate, to provide effective remedy to the victims;
Reaffirms the duty of States to effectively promote and protect the human rights and fundamental freedoms of all migrants, especially those of women and children, regardless of their migration status, in conformity with the Universal Declaration of Human Rights and the international instruments to which they are party,
New York Declaration for Refugees and Migrants – General Assembly Resolution 71/1 (2016)20
- Call to create a New Global Compact on refugees to
- Improve response of the international community to large movements of refugees and protracted refugee situations,
- Provide for more equitable and predictable burden and responsibility-sharing in support of countries and communities particularly affected.
- It will not create new legal norms or envision a fundamentally different international architecture for refugee protection.
- Rather, it provides the framework for applying these norms in large-scale influx, as well as protracted refugee situations, grounded in the principles of international cooperation and responsibility-sharing.
UN Global Compact for Safe, Orderly and Regular Migration – General Assembly Resolution 73/195 (2018)21
- The Global Compact, while expressing the consensus of the international community as to ways to manage the migration problem, is not a binding international instrument. It reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law. As such, it distinguishes between regular and irregular migration status, including taking into account different national realities, policies, priorities, and requirements for entry, residence, and work, in accordance with international law.
- The UN Global Compact was adopted by a recorded vote of 152 votes in favor to 5 against (Czech Republic, Hungary, Israel, Poland, United States), with 12 abstentions, of a draft resolution endorsing the Global Compact — which was adopted by world leaders in Marrakesh, Morocco, on December 10, 2018.
- In his statement upon the adoption of the UN Global Compact, the UN Secretary-General stated that the document “reaffirms the foundational principles of our global community, including national sovereignty and universal human rights, while pointing the way toward humane and sensible action to benefit countries of origin, transit, and destination as well as migrants themselves.”22
- Representatives of Iceland, Lithuania, Malta, the Netherlands, and Denmark clarified their view that the Global Compact confirms the sovereign right of States to determine their migration policies in conformity with international law. The agreement creates no new legal obligations for States nor does it further international customary law or treaty commitments. States have the sole authority to distinguish between regular and irregular migrants, and they will maintain the right to apply criminal law for migrants smuggled onto their territory.
- The United States opposed adoption of the instrument, asserting that, “Decisions about how to secure its borders and whom to admit for legal residency or to grant citizenship are among the most important sovereign decisions a State can make and are not subject to negotiation or review…. In sum, the Global Compact strikes the wrong balance. Its pro-migration stance fails to recognize that well-managed, legal immigration must start and end with effective national controls over borders.”
- France, while acknowledging the Global Compact’s practical usefulness, noted that it is non-binding and is not geared toward heightening migration but rather, toward managing it. It stressed that there is no right to migration, pointing out that the agreement does not create such a right. Those who state views to the contrary are either doing so in bad faith or did not read the text.
- Jordan insisted that the Global Compact is not legally-binding and does not redefine international arrangements. Jordan does not consider itself committed to instruments to which it is not signatory and maintains certain reservations on several instruments mentioned in the text.23
The UN Compact, for safe, orderly and regular migration
The aims and objectives, as set out and detailed in the UN Compact, for safe, orderly and regular migration are summarized as follows:24
- Collect and utilize accurate and disaggregated data as a basis for evidence-based policies.
- Minimize the adverse drivers and structural factors that compel people to leave their country of origin.
- Provide accurate and timely information at all stages of migration.
- Ensure that all migrants have proof of legal identity and adequate documentation.
- Enhance the availability and flexibility of pathways for regular migration.
- Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work.
- Address and reduce vulnerabilities in migration.
- Save lives and establish coordinated international efforts on missing migrants.
- Strengthen the transnational response to the smuggling of migrants.
- Prevent, combat, and eradicate trafficking in persons in the context of international migration.
- Manage borders in an integrated, secure, and coordinated manner.
Analysis of the above instruments yields a wide range of honorable intentions, noble platitudes, moral and patronizing preaching – all typical of international instruments dealing with situations where there exist conflicts of international and national interests.
As with any form of international legislation, international instruments are the result of negotiation and compromise, with the lowest level of commitment, while attracting the widest consensus, which of necessity lacks solid means of implementation or clear legal obligations on countries.
The dichotomy between the inherent sovereign right of countries to control entry or exit of persons on the one hand, and the moral, humanitarian imperative to protect human rights of migrants and refugees on the other, dictates the manner in which countries manage their basic political, security, and economic interests.
Such interests are paramount in international practice and of necessity override the moral and humanitarian imperatives set out in international instruments.
Analysis of the above instruments nevertheless yields a number of common basic norms and principles applicable to situations of migration, and especially to large refugee movements:
- Protection of the human rights of all refugees and migrants, regardless of status.
- Ensuring that all refugee and migrant children are receiving an education within a few months of arrival.
- Preventing and responding to sexual and gender-based violence.
- Supporting those countries rescuing, receiving, and hosting large numbers of refugees and migrants.
- Humanitarian and development assistance to those countries most affected, including through innovative multilateral financial solutions.
- New framework that sets out the responsibility of Member States, civil society partners, and the UN system, whenever there is a large movement of refugees or a protracted refugee situation.
- Finding new homes for all refugees identified by UNHCR as needing resettlement; and expanding the opportunities for refugees to relocate to other countries through, for example, labor mobility or education schemes.
- Strengthening the global governance of migration by bringing the International Organization for Migration into the UN system.
- Strengthening and facilitating emergency responses to refugee movements and a smooth transition to sustainable approaches that invest in the resilience of both refugees and the communities that host them;
- Providing additional and predictable humanitarian funding and development support to host countries;
- Exploring additional avenues for refugees to be admitted to third countries, including through increased resettlement;
- Supporting the development and application of a comprehensive refugee response framework (CRRF) for large refugee movements, applicable to both protracted and new situations.
- The protection of human rights and basic freedoms for migrants/refugees;
- Freedom to enter and to leave, subject to national security and public order;
- Prohibition of denial of entrance at the border and arbitrary deportation in situations of threats of persecution;
- Freedom of movement within the hosting country;
- Prohibition of racism and discrimination of any form;
- Balanced international cooperation to assist and regulate flows of migration, including assistance to hosting and transfer countries;
- Need for regulation and management of large-scale migration through practical solutions;
- Assistance to countries receiving/hosting migrants.
Clearly, it is difficult to extrapolate from any common ethical code of conduct that could apply to every migration situation without reference to the factual, political, and security circumstances and implications prevailing in, and relevant to, every such area and situation.
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- https://www.iom.int/about-iom, https://www.iom.int/constitution
- Dublin Regulation III, No. 604/2013 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF
- A/RES/73/195 https://www.un.org/press/en/2018/ga12113.doc.htm
- http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/73/195 see paragraph 16