21 October 2011
Distinguished delegates, representatives of the United Nations and friends, ladies and gentlemen,
It is a true honour for me to address this General Assembly for the first time in my capacity as the Special Rapporteur on the human rights of migrants. In view of my recent nomination by the Human Rights Council in June this year, I do so with a genuine sense of humility and great respect for the work of my predecessors and for the experience and expertise assembled in this room and within the wider UN system. I also seize this opportunity to address this august Assembly with a strong sense of responsibility and commitment to the implementation of the mandate entrusted to me by the Human Rights Council. It is a shared responsibility, however, and I look forward with anticipation to building partnerships and synergies with all of you to overcome the obstacles existing for the full and effective protection of the human rights of migrants.
I am fortunate to be able to build upon the work of my two predecessors, Mr. Jorge Bustamante and Ms. Gabriela Rodriguez Pizarro, who did ground-breaking work on the issue of the protection of the human rights of migrants. Migration is also an issue to which I have devoted a considerable amount of time over the past 25 years as an academic and professor of international law. On the basis of these introductory remarks, I would like to share with you some preliminary thoughts on the principles which will guide my mandate over the next years.
1. I would like to start by saying that we are all migrants and that migration concerns all States. How many of us live today in the city of birth of our four grandparents? Not many. We are all children, grandchildren or great-grandchildren of migrants. Rare are those who have settled in one and the same place for numerous generations. Migration is in the DNA of mankind. Migration is how we cope with environmental threats, with political oppression, but also with our desire to create a meaningful future for ourselves and our children. Indeed, migration is not an anomaly: it is the normal state of our human condition on this planet.
2. Second, I wish to paraphrase the Beijing Declaration of the Fourth World Conference on Women and say that “migrants’ rights are human rights” or, as the Supreme Court of Appeal of South Africa pronounced almost a decade ago, “dignity has no nationality”. This means essentially that, according to the International Bill of Human Rights, migrants share with citizens all human rights, except two: the right to vote and be elected, and the right to enter and stay in the country. All other human rights are for “everyone”, irrespective of immigration status. This includes the equal enjoyment of rights and the prohibition of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, including nationality. Distinctions can be made on the basis of immigration status, but they can’t be discriminatory and they must be justified by the authorities within the human rights framework.
This principle of the equal enjoyment of rights means, for example, that migrant workers cannot be discriminated against on account of their “foreignness” with respect to the rights and benefits that accrue to all workers, including in the application of labour laws. It also means that children of migrants should not be discriminated against in accessing services dedicated to all children, such as schooling, in application of the right to education. Equal rights and dignity for all oblige States to apply the same standards to all, irrespective of their immigration status, age, gender, nationality, race, ethnicity or any other status, unless the distinction can be justified within the human rights framework.
This does not imply that State authorities may not reserve some entitlements to citizens or to some categories of migrants, nor that they may not expel a migrant who is in an irregular situation. If we take this last example, it means that the expulsion must conform to the human rights framework as it applies to all. A migrant who risks persecution or torture or cruel, inhuman or degrading treatment or punishment at home, may well be a refugee and should not be returned. A migrant who has a partner and children who are nationals of the host country should not be expelled on account simply of his or her immigration status and should have his or her right to family life recognized and his or her children’s best interests taken into account. Detention should only be a measure of last resort and must only be applied in exceptional circumstances, be prescribed by law, meet human rights standards, be subject to periodic judicial review and, where used, last only for the minimum time necessary. It should only be resorted to for the same reasons as those for which we preventively detain citizens, i.e. risk of flight and danger to the security of oneself or of others. Alternatives to detention should be explored.
3. This last issue brings me to a third principle, which is that irregular migration is not a crime. State authorities have increasingly had recourse to the language of crime when they speak of irregular migration, with some States resorting to criminalization of irregular migration and/or of helping migrants in an irregular situation. Crossing borders may be in violation of the law, but it is an abstract violation of the law, since moving from one country to another does not per se endanger any person, nor affect any property. The criminalisation of irregular migration has been an important theme for my predecessor and will remain one for me.
It is however a legal paradox that, while some States have criminalized irregular migration in their discourse, they have indicated no intent of providing the migrants with all the guarantees that are traditionally embedded in criminal law. Allow me to recall this Assembly that the traditional administrative law context of migration management was never challenged, as it offers often much more supple instruments for dealing with irregular migrants than the stringent requirements of criminal law. Administrative decisions relating to migrants may result today in long detention periods, in the absence of a clear legal status, or in a return to death or torture. Yet, we do not really guarantee systematic access to review mechanisms, to legal representation, to the content of the file, or to a meaningful opportunity to defend one self. In sum, we often apply to foreigners legal standards that we would abhor if they were applied to our sons and daughters in any circumstances.
4. Migration has become a critical and debated issue in many countries. Xenophobic discourse has been mainstreamed during the course of the past decade and is gaining increasing social acceptance. In numerous countries, extremist parties strive on an anti-immigration agenda and they set the tone and the vocabulary of the political debate on migration issues.
Why is that? My interpretation is that it is because there is no push-back, no credible political counter-discourse. This in turn is because there is, as of yet, very little mobilisation in favour of migrants, and even less so with regard to the rights of irregular migrants. In the history of the human rights movement, women, children, indigenous peoples, persons deprived of their liberty, minorities and persons with disabilities, have obtained greater recognition of their rights thanks to political and social mobilization. They worked hard at convincing relevant constituencies of the just nature of their cause. We have progressively recognized that “their” rights were “our” rights, thus facilitating the recognition of their rights by courts and tribunals.
Migrants find difficulties to mobilize. They are not sufficiently organized, especially when they do not speak the same language. They don’t vote and they rarely complain. Their aim is to blend, to fit, not to stick out, particularly if they are irregular migrants. They mostly fear being returned to the country of origin and mobilizing would call them to the attention of the authorities.
5. A common rhetoric is that irregular migrants “steal jobs”. It is forgotten that, very often, those irregular migrants would not be here if there was no market for their skills, if it was not for domestic employers offering such jobs, for wages or at conditions that locals will not accept. The fruit picking industry, the construction industry and the domestic services sectors are cases in point. There is little irregular migration to places where jobs are not available.
In this context, we forget about the positive and, at times indispensable, economic and social contribution that migration brings to our societies. Many sectors of our economies are competitive and booming due to the contribution of migrants. We also forget that “sealing” the border is a fantasy: in democratic states, borders are porous and “sealing” them would mean reaching levels of violence incompatible with true democracy and rule of law.
These realities should be recognised in the political discourse at all levels of government, be it universal, regional, national, local or municipal government, as they all have a role to play in defining immigration policies and their impact on the human rights of migrants.
6. The work undertaken in the context of international or regional organisations on migration is also crucial to advance the rights and protection of all migrants. Within the UN system, the Global Migration Group, which has in the past years advocated for the rights of migrants, has contributed to developing new conceptual tools to better appreciate migration issues. The International Labour Organization (ILO) is instrumental not only in terms of standard setting, but also in ensuring compliance by States of their obligations set out in the ILO instruments and by offering technical legal assistance toward transposition into national laws. Of course, the Office of the High Commissioner for Human Rights (OHCHR) is an obvious and natural partner, especially since one of its thematic priorities is the protection of human rights in the context of migration. I will therefore engage in partnership with all UN entities and the International Organization for Migration (IOM). In this regard, I look forward to participating in an expert group meeting convened by UNHCR in Djibouti in November this year, to discuss and seek practical solutions to the protection needs of “irregular maritime migrants”: people taking to the sea in search of safety, refuge or an economic future.
Further, as the only State-led process to discuss issues, opportunities and challenges related to international migration, the Global Forum on Migration and Development (GFMD) also plays an important role in stimulating dialogue and reaching common approaches. In this regard, I look forward to participating in the Concluding Debates of the GFMD 2012 to be held in Geneva this December.
As indicated by these processes, international cooperation on migration issues – at bilateral, plurilateral and multilateral levels – is on the rise. Applying common international legal standards goes a long way towards creating a level playing field, for migrants, employers and States.
International instruments – such as the Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, the Palermo Protocol on trafficking in persons and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the Convention against Transnational Organised Crime, the ILO conventions relating to migrant workers, including the most recent ILO Convention No. 189 Concerning Decent Work for Domestic Workers, which received crucial support from several countries where numerous foreign domestic workers are employed – are essential tools that need to be widely ratified and their principles – often based on core rights such as the prohibition of discrimination or the right to access to justice – need dissemination and implementation.
I also look forward to strengthening our collaborative synergies with other special procedures and with the UN treaty bodies, in particular with regard to the implementation of the Convention on Migrant Workers among States parties and to engage in a meaningful and forward-looking dialogue with those States that have not yet ratified this core international human rights treaty. Be it through periodic examination of States parties’ reports, individual complaints, communications, or country visits, we work towards the same goal: the protection of the rights of migrants at the national level, whether in countries of origin, transit or destination.
In terms of engagement with States, let me take this opportunity to extend sincere thanks to the Government of Albania for accepting my request to visit the country this December. As a State party reviewed by the Committee on Migrant Workers this year, the visit presents an excellent opportunity to realize the benefits from the complementary partnership existing between my mandate and the Committee.
Ladies and gentlemen,
As concluding remarks, I wish to reiterate that we all have a responsibility to ensure the respect for the human rights of migrants and States have the obligation to comply with their international human rights obligations for all. As stated in my opening, we are all migrants and as such are contributing to the global economy and to global cultural diversity.
Changing the often inflammatory mainstream political discourse on migration is a challenge for which we have yet to find a solution. We need a balanced discourse on migration. A discourse that recognizes the cultural importance of the circulation of talents and ideas. A discourse that states the challenges, but also recalls the need for migrant workers. Because migration happens and we have to live together.