South Africa Netherlands Research Programme on Alternatives in Development (SANPAD)
10 May 2011
The Hague, The Netherlands
Ladies and Gentlemen,
Mobility, movement or migration has characterized the human experience since time immemorial. People choose to or are compelled to move for many reasons – economic livelihood and opportunities, family unity, war, social exclusion, and persecution. The places where people eventually find themselves may provide opportunities and benefits. They may also be fraught with danger, barriers, challenges, alienation and exclusion. People are on the move around the world and this is fostering social transformation and sometimes upheaval within and across states.
I am very pleased to be in The Hague, the city which was my home for several years while I was a judge of the International Criminal Court in order to speak to you this morning about migration, conflict and xenophobia and the complex interplay between them. In so doing, I will set out some fundamental human rights issues, particularly concerning the human rights of migrants and their families. I will highlight some important initiatives being undertaken by my Office.
I also wish to provide some suggestions about areas which may require greater consideration and research by organizations such as the South Africa Netherlands Research Programme on Alternatives in Development (SANPAD). My focus will be on human rights issues in order that we protect migrants and their families, and in the hope that a human rights-based approach may be reflected in the outcome of this very timely conference.
Migration and (Development)
Permit me to begin by outlining some commonly held misperceptions about migration and development. The issue of migration and migrants is replete with myths and stereotypes, and it is important to challenge such misperceptions.
The Human Development Report, Overcoming Barriers: Human Mobility and Development (2009) prepared by colleagues of the United Nations Development Programme found that migration from developing to developed countries is not as common as migration between developing countries and economies. Most people who move from their homes do not go abroad at all. Instead they move within their own country. It is a fact that many more people move within borders than across them.
The report also finds that fears about migrants taking the jobs or lowering the wages of local people, burdening local services, or passing on social and economic costs to the non-migrant population in the destination country, are generally exaggerated. When migrants’ skills complement those of local people, both groups benefit. Societies as a whole may also benefit in a great many ways.
These facts challenge the exaggerated claims that it is predominantly the most desperate who migrate and that they mostly arrive at the foreign borders and shores of Europe or North America. South-South migration – particularly within and across Asia and Africa - typifies the changing configuration of contemporary migration.
Notwithstanding this broad reality, the recent turmoil across North Africa demonstrates the particular vulnerabilities of migrants. My Office is very concerned about the repercussions of recent events on the rights of migrants, including unlawful and often dangerous interception practices, at sea and land borders, violence, racism, and xenophobia. Thousands of these migrants are fleeing conflict and persecution. A great many of them have suffered violations of their economic social and cultural rights as well as civil and political rights.
It is vitally important for us to recognize that, regardless of their legal status, all migrants have human rights and can be vulnerable to violations of those human rights. And it cannot be taken for granted that every person who does not present an asylum claim is merely an opportunist in search of economic enrichment. It is imperative that the individual circumstance of every migrant is examined before return or expulsion can be contemplated.
While I recognize the numerous challenges being faced by countries in Europe, it is important to remember that the onus of hosting migrants, refugees and other displaced persons fleeing the turmoil in North Africa continues to fall disproportionately on countries in that region. As the member states of the European Union meet to consider temporary border control measures in the context of the Schengen agreement. I wish to emphasize that it is time for all countries facing these challenges, including countries in the European Union to show effective support in full respect of their international obligations at these critical moments. It is not enough to outsource the problem away from the borders of Europe or elsewhere. I would like to commend EU Commissioner Malmström’s call in the course of the recent launch of the Commission Communication on Migration, for a more structured and comprehensive response from the European Union to the challenges and opportunities of migration in the EU. It is important to take into account the long-term and human rights issues created by events in the Middle East and North Africa, not merely to respond through tighter border control and containment measures.
I would like as well to take this opportunity to call on the EU and its member states who will be attending the forthcoming meeting of the EU Justice and Home Affairs Council to ensure that they up-hold their obligations to promote and protect the human rights of the thousands of asylum seekers and migrants looking to Europe for support and protection.
As we commemorate this year the 60th anniversary of the Convention relating to the Status of Refugees the principle of non-refoulement must be upheld and respected. As migrants from the North African region make their journeys of hope, opportunity and protection, I call on Europe to extend solidarity to their countries of origin, and to protect and promote the human rights of all migrants on their territory.
So why are so many people on the move? As we see in the current situation of North African migrants, conflict can present a compounding push factor to migrate. One cannot ignore the role of conflict in global migration, especially within and from the African continent. It is important here to distinguish between refugees who flee due to a well-founded fear of persecution and armed conflict, and migrants who often migrate for a mix of reasons including, in search of livelihood and social opportunities. There is also the very real occurrence of internal displacement. It is estimated that 27.5 million people were internally displaced worldwide due to conflict, generalized violence and human rights violations at the end of 2010. Over 40% or 11.1 million of them were in Africa. Human rights violations are often the root causes of internal displacement and displaced persons are more often than not denied basic rights or face xenophobia and discrimination once displaced.
However, the vast majority of migration is motivated by a mix of reasons, some of which can be defined as ‘forced’, and some as ‘voluntary’. One of the key motivations for movement is the unequal development which transfers human resources from countries of origin to destination countries, while the social costs are predominantly borne by the countries of origin.
The problem with unequal development is that it increases economic asymmetries and social inequalities not only in the countries of origin and destination, but ultimately, within and across regions. Unequal development concerns a spectrum of economic and social issues such as employment and income generation, remittances and foreign exchange, social services such as health and education, civil and political rights and the costs of human labour. These are human rights questions. International human rights law, including the Convention on the Rights of Migrant Workers, prohibits discriminatory treatment against migrants, whether they are in regular or irregular situations, and protects their rights and freedoms. Similar protections are afforded by the other core human rights treaties. And the Declaration on the Right to Development, celebrating its 25th Anniversary this year, itself requires a people – centered approach to development that can lead to constant improvement in the well-being of both migrant and non-migrant populations, and can inform further thinking by SANPAD, as it considers development alternatives.
Globalization inevitably erodes boundaries, while poverty increases migration which can in turn provoke xenophobia and intolerance. It is crucially important that we address the complex interface between these factors, and understand how they can both stem from and engender a denial of political, civil, economic, social and cultural rights. This complex relationship is also an area for further research. Here, it will be important to apply a rights-based approach which considers issues such as participation of migrants in decision-making, policies to facilitate the integration and inclusion of migrants into society, and the need for disaggregated data on migrants, in particular. It will also be useful to undertake comparative studies on national law and practice on specific issues, such as the right of migrant children to education.
All States should look at the real need for migrant labour emanating from their economies and societies, and ensure that they put in place adequate, safe and legal means for migrants to enter and work in their countries. This could reduce the necessity of risky irregular movement, particularly those facilitated by smugglers and traffickers. Criminalizing and demonizing migrants is counter-productive to effective migration policy, creates a climate of prejudice and even xenophobia against migrants, and can lead to a spiral of human rights violations.
While States are entitled to manage migration, they must do this in full respect of their obligations under human rights law. Migrants cannot be treated as second-class human beings who deserve less protection than the rest of us. The Convention on the Rights of Migrant Workers offers a comprehensive framework for the protection of the human rights of migrants. Yet, to date, only 45 States have ratified it. I urge all States to consider doing so without further delay.
Xenophobia is difficult to define but is generally viewed as an intense dislike, hatred or fear of others. It includes fear or hostility directed towards strangers and all that is foreign. The UN’s Durban Declaration of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance states that “xenophobia, in its different manifestations, is one of the main contemporary sources and forms of discrimination […] which requires urgent attention and prompt action by States, as well as by the international community”. It further stresses that “xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, constitutes one of the main sources of contemporary racism and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices”.
Around the world today we are witnessing an increase in xenophobia, anti-migrant sentiment and discriminatory practices affecting the human rights of migrants. Irregular migrants are at particular risk. Such sentiments and practices are often reinforced by legislation, regulations and policies which criminalize and exclude migrants.
Experiences and knowledge about xenophobia in Europe, North America and other developed regions are fairly well-known. However, as South-South migration increases, xenophobia is becoming increasingly evident in developing countries, including my own. In May 2008, South Africa witnessed an explosion of xenophobic violence across the country resulting in over sixty deaths (including over twenty South Africans) and widespread destruction of property.
As we have seen all too frequently, from the Asian financial crisis to more recently in South Africa and Europe, recessions can fuel xenophobic sentiments, discriminatory practices and violence against migrants and their families. In responding to economic downturns, it is important that the human rights of migrants are not compromised. Strengthening and maintaining social protection systems, as well as ensuring access to basic services, are crucial to supporting populations as a whole during such times, as well as those especially vulnerable and marginalized, such as irregular migrants.
Ladies and Gentlemen,
How then does the variable of conflict interact with migration and xenophobia? While at times accurate, it is too facile to view conflict solely as a push factor of migration from countries of origin. Conflict is not always a causal factor in migration. As starkly witnessed by the South Africa case, conflict or unrest can be the ‘end result’ or effect of migration and attendant xenophobia. We must seek to widen the understanding of conflicts beyond armed conflict to include conflicts occurring in communities around the world as a result of real impacts or perceived threats by migrants to the social and economic fabric of societies.
I believe that more information about the phenomenon of xenophobia is needed. What creates xenophobia? It is it a simple question of fear? To what extent is it a root cause of conflict and violence in the destination community? How does it become discriminatory behaviour and violence, subject to acton by Governments, law and human rights? What is the role of social and economic inequality - real or perceived? Researchers of the 2008 xenophobic violence in South Africa found that the complexity of the phenomenon of xenophobia made it difficult to de-link it from the broader reality of inequality and poverty in South Africa.
Another important consideration is the role of public discourse in fostering xenophobia or in exacerbating xenophobic sentiment and behaviour. I must say that I am concerned about the increasingly worrisome rhetoric of the popular media, some public officials and personalities lately in Europe, Africa, the Americas and Asia. Xenophobic sentiment directed at migrants, broadly speaking has almost become standard social and political discourse. Blaming migrants for crimes and social ills and as representing a ‘burden’ on societies at the expense of the non-migrant population, creates a foundation for limiting or not respecting their rights. We have all heard the terms ‘undesirable elements’ ’aliens’ ’non-citizens’ ‘non-nationals’ freely used and the line crossing over to incitement hatred to racial, religious, national hatred may often be perilously close. To contribute to this thinking, OHCHR is organizing a series of expert workshops on the prohibition of incitement to national, racial or religious hatred to better understand the contours and implications of such prohibition. Two workshops have already taken place in Vienna and in Nairobi, and two more will be held in Bangkok and Santiago by the end of the year.
My Office also provides the Secretariat for the Ad Hoc Committee on the Elaboration of Complementary Standards which was created further to the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. This Committee addresses issues concerning contemporary manifestations of racism and xenophobia is scheduled as a topic on its forward agenda. Another Durban follow up mechanism, the Intergovernmental Working Group of the Effective Implementation of the Durban Declaration and Programme of Action, very recently adopted recommendations on the issue of migration.
I was also heartened to learn that SANPAD is already undertaking some important thinking and research – including during this very conference - on the role and effect of conflict and xenophobia on social cohesion and development.
Ladies and Gentlemen,
I wish to leave you with some final thoughts.
First, in this consideration of the complex interface between migration, conflict and xenophobia what one finds is that the human rights of migrants are far too often absent from the debate. We at OHCHR are of the view that the thinking and research must evolve (and more rapidly given recent events) to a conception of migrants as rights-holders and that their rights must be defended in origin, transit and destination countries. This includes freedom from discrimination, the right to decent work, health and housing, and protection from arbitrary arrest and detention.
Second, In 2010 my Office led the Global Migration Group in speaking with one voice on the human rights of migrants. In a landmark statement, constituent agencies stated clearly that “The irregular situation which international migrants may find themselves in should not deprive them either of their humanity or of their rights.” This is a reminder that, while States are entitled to regulate movement across their borders, they must do so in accordance with their obligations under international law, including international human rights law.
Addressing the impact of xenophobia, racism and discrimination on migrants, with particular attention to the situation of irregular migrants, is a key strategic priority of my Office. In the next few weeks, OHCHR will be organising and participating in a number of discussions at the international level that will focus on the issue of discrimination and xenophobia against migrants, including during the Global Migration Group Symposium from 17-18 May 2011.
My Office is committed to working with Governments and other partners to promote and protect migrants’ rights, and to build the necessary capacity in countries to develop comprehensive policy frameworks to protect the rights of all migrants, regardless of their status. Through our country and regional offices around the world, we are playing a role in promoting the human rights of migrants. For example, in Lebanon our regional office contributed to the development of a unified national contract for migrant domestic workers.
Finally, much more coordination at the international, regional and national level is needed to address the myriad issues of migration and their impact on the human rights of migrants and their families. A coherent and coordinated response based on actual research rather than imagined impacts of migration and xenophobia is required. A more comprehensive and balanced analysis of development models, migration and their links to human rights issues is needed. There is certainly an important role here for research and development programmes, such as that of SANPAD.
I wish you a most productive and thought-provoking conference. I look forward to receiving the outcome of your meeting.
(Gelb, 2008; Pillay, 2008; Fauvelle-Aymar and Wa Kagbwe-Segatti, forthcoming). Who’s the Alien?: Xenophobia in post-apartheid South Africa