Human rights law

Human rights law refers to the body of law establishing obligations to uphold human rights at the international, regional and national levels. The core principles of human rights are as follows:

  • Universality and inalienability. Human rights apply to everyone and cannot be taken away or limited, except in specific situations and according to due process.
  • Interdependency and indivisibility. Progress in one human right directly affects others. As such, human rights are inter-related, equal in importance, and none can be fully enjoyed without the others.
  • Equality and non-discrimination. This principle applies to all human rights and prohibits any discrimination based on any grounds. Human rights thus apply to migrants just as they apply to nationals in States that ratified the treaties (read more on the Principle of non-discrimination).

While all actors contribute to the realization of human rights, States have the primary responsibility. As parties to the human rights treaties, States are obliged to:

  • Respect, which means to refrain from interfering with the enjoyment of human rights;
  • Protect individuals and groups against human rights violations; and
  • Fulfil human rights by taking action to enable their enjoyment.

A number of human rights are today not only codified in treaty law, but also part of customary international law. So far, there are nine core international human rights instruments. Under each instrument, a committee (sometimes called a treaty body) of independent experts monitors the implementation of each treaty by States parties (details in United Nations human rights mechanisms).

  • International Convention on the Elimination of All Forms of Racial Discrimination (1965)
  • International Covenant on Civil and Political Rights (1966)
  • International Covenant on Economic, Social and Cultural Rights (1966)
  • Convention on the Elimination of All Forms of Discrimination against Women (1979)
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
  • Convention on the Rights of the Child (1989)
  • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
  • International Convention for the Protection of All Persons from Enforced Disappearance (2006)
  • Convention on the Rights of Persons with Disabilities (2006)

Some of the treaties are supplemented by optional protocols dealing with specific concerns, while the Optional Protocol to the Convention against Torture also establishes a committee of experts.

In very few cases, some specific rights make a distinction between nationals and non-nationals or require a lawful status of the migrant: for example, on the right to vote and be elected (for nationals) or the right to found trade unions (regular migrants and nationals). Also, there may be limitations to some human rights, while some human rights in certain cases may be progressively realized. In exceptional and few cases, States can also temporarily derogate from (that is, deviate from or suspend) human rights obligations (such as guaranteeing the right to peaceful assembly and free movement), but never from the core obligations or from jus cogens norms (such as non-discrimination, non-refoulement and prohibition of torture). These limitations or distinctions are all established and specified in the respective treaty. (For more information, see Human rights of migrants: An overview).

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International labour law

International labour law governs the rights and obligations of workers, employers, unions and States in the workplace. Social justice has long been considered crucial to the world’s peace. In 1919, States founded the International Labour Organization (ILO), which aims to establish, promote and monitor international labour standards.

The ILO is the only United Nations agency with a tripartite structure, bringing together representatives of governments, employers and workers. The ILO drafts conventions that become binding once they are in force and ratified by Member States. It also drafts recommendations that serve as non-binding guidelines. Among these numerous labour-related instruments, eight conventions are considered fundamental.

List
International Labour Organization fundamental conventions
Global instruments

Note: This list is not exhaustive.

Together, the eight conventions enshrine a few core rights and principles that are so fundamental that all Member States are bound to respect and promote them, whether or not they have ratified the convention. They cover the following:

  • Freedom of association and the effective recognition of the right to collective bargaining;
  • Elimination of forced or compulsory labour;
  • Abolition of child labour; and
  • Elimination of discrimination with respect to employment and occupation.

These core rights and principles apply to all workers, including migrant workers. The need for “protection of the interests of workers when employed in countries other than their own” is specifically recognized in the ILO Constitution.

In addition, two ILO instruments have been specifically drafted to address labour migration and the protection of migrant workers.

Table
Table 1. Instruments addressing labour migration and the protection of migrant workers
 

Migration for Employment Convention (Revised), 1949

C097

Migrant Workers (Supplementary Provisions) Convention, 1975

C143
WHO is covered? Only migrant workers in regular situations. Migrant workers in regular and irregular situations.
WHAT is covered?
  • Fair recruitment and equal treatment of regular migrant workers vis-à-vis national workers.
  • Labour conditions.
  • Trade union membership.
  • The right to collective bargaining.
  • Social security.
  • Employment taxes.

For all:

  • States parties must respect the basic human rights of all migrant workers.

For migrant workers with a regular status:

  • Prescribes equal treatment in matters of labour law.
  • Recognizes equal treatment on specific rights, arising from past employment, such as the right to receive unpaid wages and social security.

 

Source

Migration for Employment Convention (Revised), 1949 (C097) and Migrant Workers (Supplementary Provisions) Convention, 1975 (C143)

In its Advisory Opinion of 2003, the Inter-American Court of Human Rights (IACtHR) concluded that migrants, after being employed, acquire rights by virtue of being workers that should be recognized and guaranteed independently of whether their employment is regular or irregular (IACtHR, 2003).

The prohibition against discrimination is also a central pillar of international labour law. International labour standards apply to all, unless otherwise specified. For instance, the International Convention on the Rights of All Migrants Workers and Members of their Families (ICRMW) is very specific on the rights that apply to all migrant workers, versus the rights that apply only to migrant workers with regular status and to temporary migrant workers.

All migrant workers benefit from protection against slavery, forced and compulsory labour and other forms of abuse and exploitation at the workplace, and the right to decent work, regardless of migration status.

The 1966 International Covenant on Economic, Social and Cultural Rights enshrines, for all, the right to work and the right to the enjoyment of just and favourable conditions of work (articles 6 and 7). However, States by virtue of their sovereignty can adopt legislation on the conditions and criteria for non-nationals to be allowed to work on their territory. Below is a non-exhaustive list of references in Treaties and by Treaty Bodies specifying equal rights at the workplace for all, including migrants.

List
List 2. Treaties specifying equal rights at the workplace for all
Global instruments

Note: This list is not exhaustive.

(See more on the Principle of non-discrimination and its impact on migration governance.)

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List
List 3. General comments addressing labour migration and the protection of migrant workers
General comments and recommendations by human rights treaty bodies

Note: This list is not exhaustive.

Refugee law

Refugee law refers to the set of rules that establishes the protection by the international community for individuals who have crossed an international border and are at risk of persecution in their country of origin. Refugee law clarifies who shall be granted international protection and prescribes the rights to which they are entitled.

At the international level, the main legal instruments are the Convention relating to the Status of Refugees (1951) and its Protocol relating to the Status of Refugees (1967). The 1967 Protocol broadens the geographical and dateline applicability of the 1951 Convention, by removing the 1951 limit related to events occurring in Europe before 1 January 1951.

The 1951 Convention relating to the Status of Refugees states that:

Article / Quotes

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.

Source

Refugee Convention, Article 33 (1)

The 1951 Convention defines a refugee as a person who:

  • Is outside his or her country of nationality or habitual residence;
  • Has a well-founded fear of being persecuted because of race, religion, nationality, membership of a particular social group, or political opinion; and
  • Is unable or unwilling to avail himself or herself of the protection of that country, or to return there, for fear of persecution.

As refugees are not protected by their own governments, the international community steps in. Under international law and through the legal regime of refugee protection, the international community, in cooperation with receiving countries, provides protection to refugees. This includes women, men, girls, boys and gender non-conforming adults and children.

However, according to the Refugee Convention, some persons, even though they would qualify as refugees, would still be excluded from refugee protection. This is the case if the refugee:

  • has committed a crime against peace, a war crime, a crime against humanity or a serious non-political crime outside their country of refuge; or
  • is guilty of acts contrary to the purposes and principles of the United Nations.

The cornerstone of protection under refugee law is the principle of non-refoulement. This principle prohibits the return of a person to a territory where his or her life or freedom is at real risk of irreparable harm due to persecution. This principle is enshrined in article 33 of the 1951 Convention and is also considered a rule of customary international law, binding all States regardless of whether they are party to the 1951 Convention or not. Unlike some other articles of the 1951 Convention, the non-refoulement provision allows for no reservations. As well, it applies whether or not the refugee is a lawful resident in the territory of a contracting State. However, according to the 1951 Convention, asylum seekers and recognized refugees who constitute a danger to the security of the receiving country or to its community are excluded from the refugee protection. Nonetheless, these persons are protected from refoulement under customary international law applicable to all States, and cannot be returned to places where they are at risk.

In addition to the 1951 Convention, refugees are also protected by international human rights law. States are responsible for determining the status of refugees, and for protecting the rights of refugees. Furthermore, the 1951 Refugee Convention refers to the supervisory role of the United Nations High Commissioner for Refugees (UNHCR) and requires States to cooperate with UNHCR in ensuring that the rights of refugees are respected and protected.

At the global level, UNHCR has the authority to interpret the definition of “refugee”, as well as the protection regime established under the 1951 Refugee Convention. It has done so through its Guidelines on International Protection.

Regional and national definitions of the term refugee can be broader than the one found in the 1951 Convention. There are some regional legal instruments that define and provide for a regional refugee protection regime. Thus, the same person can be recognized as a refugee or not, depending on the regional instrument or national legislation that is being applied.

List
List 4. Instruments providing for expanded refugee protection
Regional instruments

Note: This list is not exhaustive.

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While refugees are protected under refugee law, international law has evolved since 1951, establishing the need for a continuum of protection going beyond the 1951 Convention definition of a refugee. The principle of non-refoulement has subsequently been extended by human rights law. It now applies to all people – including migrants and regardless of status – for whom there are substantial grounds to believe that they would be at risk of irreparable harm to life or liberty if sent back to their country of origin (see details on what constitutes such a risk under Customary international law). Several States also offer  complementary or subsidiary protection to people who fall outside the definition of the 1951 Convention, such as for humanitarian reasons and/or under international human rights law. (Further details on the Protection against refoulement and other obligations of States on civil and political rights in Human rights of migrants: An overview.)

Transnational criminal law

Transnational criminal law deals with crimes that involve more than one country in their origin, prevention and (direct and indirect) impacts (United Nations, 1995).

In some cases, even if the offence occurs in a single State, it will still be transnational if a substantial part of its preparation, planning, direction or control takes place in another State, or if it has substantial effects in another State. Typical examples of transnational crimes include terrorist acts, trafficking in persons, smuggling of migrants, illicit manufacturing and trafficking of arms, aircraft hijacking, sea piracy, computer crimes and environmental crimes.

With regard to international migration law (IML), the main relevant convention is the United Nations Convention Against Transnational Organized Crime (UNCTOC), and in particular its two supplementary protocols: Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children (Trafficking Protocol); and Protocol against the Smuggling of Migrants by Land, Sea, and Air (Smuggling Protocol).

Both protocols establish obligations for States to criminalize human trafficking and the smuggling of migrants. They provide a definition of the crimes, and establish the obligations for States to criminalize the acts, undertake border control measures and to collaborate to prevent, investigate and prosecute the criminalized acts. They also contain a rights-based framework for the protection of people who have been trafficked or smuggled. These rights include non-discrimination, non-refoulement, non-criminalization of the victim or person, and safety, assistance, protection and recovery.

Table
Table 2. The trafficking and smuggling protocols
  TRAFFICKING PROTOCOL SMUGGLING PROTOCOL
ACT An act of “recruitment, transportation, transfer, harbouring or receipt of persons” The act of facilitating illegal movement across borders
PURPOSE For the purpose of exploitation, including exploitation of the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs For the purpose of obtaining directly or indirectly a financial or other material benefit
MEANS By means of threat or use of force coercion, abduction, fraud, deception, abuse of power or vulnerability or giving payments or benefits to a person in control of the victim Consent is not an element of the definition of the crime of smuggling of migrants. In practice, smuggled migrants generally consent to be smuggled

It is important to bear in mind that:

  • The definition of trafficking given in the Trafficking Protocol gives some examples of exploitation, but it is not all inclusive.
  • For trafficking of children, the definition requires only the act and the purpose of exploitation; in this instance, the means is irrelevant.
  • The Trafficking Protocol also recognizes the need for victims’ protection and assistance. At regional and national level, legal instruments go further, providing for specific States’ obligations in the field of victims’ protection and assistance.
  • The definition of smuggling of migrants does not cover those who help migrants to cross borders irregularly for reasons other than profit. They can be, for example, family members and also others acting on humanitarian grounds.
  • The Smuggling Protocol makes it clear that migrants should not be liable to criminal prosecution for the fact of having been the object of smuggling.

See more in the interlinkage Trafficking in persons and smuggling of migrants.

Nationality law

In general, nationality is regulated by domestic laws. As an exercise of sovereignty, States have the freedom to regulate access to nationality. But as well, international law plays a crucial role in recognizing the right to a nationality, protecting against arbitrary deprivation of nationality, and preventing and addressing statelessness (see details on the Right to a nationality and other obligations of States on civil and political rights in Human rights of migrants: An overview). The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the key international conventions addressing statelessness. These two conventions set the legal framework that aims to reduce and prevent it.

Several articles of the Universal Declaration of Human Rights are relevant to nationality law:

  • “All human beings are born free and equal in dignity and rights” (article 1);
  • “Everyone has the right to recognition everywhere as a person before the law” (article 6);
  • “All are equal before the law and are entitled without any discrimination to equal protection of the law” (article 7);
  • “Everyone has the right to a nationality” (article 15);
  • “No one shall be arbitrarily deprived of his [or her] nationality nor denied the right to change his [or her] nationality” (article 15).

1954 Convention relating to the Status of Stateless Persons

According to the 1954 Convention, a person is a stateless person if he or she is not considered a national by any State under the operation of its law. One result of statelessness is that stateless people are denied access to various rights. For this reason, the 1954 Convention establishes minimum standards of treatment of stateless people. They include, among others, the right to identity and travel documents, administrative assistance, facilitated access to naturalization, non-discrimination, as well as the right to education, employment, housing and social security.

1961 Convention on the Reduction of Statelessness

The aim of the 1961 Convention is to prevent and reduce statelessness. States parties have agreed to safeguards that prevent statelessness due to loss or renunciation of nationality, and due to State succession. The 1961 Convention aims to prevent statelessness at birth by requiring States to grant citizenship to children born on their territory (jus soli), or born to their nationals abroad (jus sanguinis), who would otherwise be stateless. To prevent statelessness in such cases, States may either grant nationality to children automatically at birth or subsequently upon application. Statelessness is also prevented and reduced by repealing nationality laws that are discriminatory, and by enabling both parents to transmit nationality to their child on equal grounds.

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Law of the sea

Law of the sea refers to the body of rules through which States regulate their relations, rights and duties at sea. These rules are to be found both in treaty law and customary international law.

List
List 5. Relevant law of the sea conventions
Global instruments

Note: This list is not exhaustive.

International Maritime Organization

The International Maritime Organization (IMO) is a specialized agency of the United Nations, composed of United Nations Member States. Its mandate is to improve the safety and security of international shipping. It also deals with legal matters such as liability, compensation issues and the facilitation of international maritime traffic, which includes the situations of people (such as migrants) in distress or lost at sea. The IMO also has a mandate to support Member States in developing, updating and monitoring the conventions related to the law of the sea.

State jurisdiction

In international migration law (IML), the issue of State sovereignty at sea is very important, especially in relation to rescue operations for migrants in distress at sea. States have sovereign rights over internal waters – for archipelagic States, this also includes the archipelagic waters – and the territorial sea. (See details on the Importance of border management in the Introduction to Regulating migration: Border management.)

Rescue obligations

When people, including migrants, are in distress or lost at sea, under the law of the sea, States have the obligation, under their jurisdiction, to rescue them. This includes the obligation to establish, operate and maintain adequate and effective search and rescue operations.

Migrants (as rights holders) benefit from a protection framework which also establishes obligations on States (as duty bearers). This framework is established by various branches of international migration law (IML), including law of the sea, human rights law, refugee law and transnational criminal law and customary international law. Under this framework, migrants are guaranteed rights like the right to life, the right to seek asylum, the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment, the right to not be discriminated against or the right to protection from refoulement. This framework applies both in territorial and internal waters, as well as in high seas (beyond the territorial or internal waters of a State), and to persons under effective control of the State (for example, persons on a vessel operated by law enforcement personal of that State).

With regard to rescue obligations, the United Nations Convention on the Law of the Sea (UNCLOS) places an obligation on States parties to:

Article / Quotes

… require the master of a ship flying its flag, in so far as he [or she] can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him [or her]…. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

Source

UNCLOS, article 98; emphasis added.

The International Convention for the Safety of Life at Sea (SOLAS) obliges a shipmaster to provide prompt assistance, when receiving information from any source on persons in distress at sea. Such an obligation is today considered customary international law and applies to all States and shipmasters.

Both UNCLOS and the SOLAS Convention require coastal States to promote the establishment, operation and maintenance of adequate and effective search and rescue services. As well, both the SOLAS Convention and the International Convention on Maritime Search and Rescue (the SAR Convention) require that embarked persons in distress or lost are treated with dignity and humanity; that their needs are provided for; and that they are disembarked to a place of safety within a reasonable time (that is, disembarkation to a safe port). This means that shipmasters must seek to ensure that survivors are not disembarked to a place where they would be put in danger, such as a place where there is a risk that their human rights might be violated.

Moreover, according to the SAR Convention, States should coordinate and step in as soon as possible, to release shipmasters to continue on their journey with minimum further deviation or delay. The State responsible for the search and rescue region in which the vessel is rescued is also responsible for coordinating the response.

Since their adoption, these conventions have been amended through resolutions adopted by Member States in the International Maritime Organization (IMO) Assembly and the Maritime Safety Committee (MSC). MSC resolutions have further filled gaps and clarified State obligations towards rescued persons.

Table
Table 3. Examples of resolutions specifying and complementing conventions
RESOLUTION CLARIFICATIONS AND POITNS COMPLEMENTING CONVENTIONS

MSC GUIDELINES ON THE TREATMENT OF PERSONS RESCUED AT SEA

 

Specifies “the place of safety” as a location where rescue operations are considered to terminate, and where:

  • The survivors’ safety or life is no longer threatened;
  • Basic human needs (such as food, shelter and medical needs) can be met; and
  • Transportation arrangements can be made for the survivors’ next or final destination.

Establishes the responsibility of the government responsible for the search and rescue (SAR) region in which the survivors were recovered to provide a place of safety, or to ensure that a place of safety is provided,

Highlights the need to avoid disembarkation, in the case of asylum seekers and refugees, in territories where their lives and freedoms would be threatened.

RESOLUTION A.920 (22) REVIEW OF SAFETY MEASURES AND PROCEDURES FOR THE TREATMENT OF PERSONS RESCUED AT SEA

(adopted by the IMO assembly)

Establishes that

  • Assistance is to be provided to survivors of distress incidents regardless of nationality or status or the circumstances in which they are found;
  • Ships which have retrieved persons in distress at sea must be able to deliver the survivors to a place of safety

Treatment of survivors of distress at sea while on board – regardless of nationality or status, including undocumented migrants, asylum seekers, refugees and stowaways – must follow the relevant guidance, as set out in International Maritime Organization (IMO) instruments. Such treatment must also be in line with relevant international agreements and long-standing humanitarian maritime traditions.

 

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Diplomatic and consular law

Diplomatic law is concerned with State-to-State relations and diplomatic protection. Consular law, on the other hand, deals with the norms that frame the relationship between consuls and individuals of sending and receiving States. Diplomatic protection is an inter-State intervention, conducted by diplomatic officials or government representatives attached to the foreign ministry, acting on behalf of the State. Consular assistance, on the other hand, is given by consuls, who are engaged in political representation. Consular assistance includes both obligations that States have, and also rights that their nationals have. These rights and obligations are part of international migration law (IML). For example, consular authorities can register the birth of migrant children, provide travel documents, or provide proof of nationality. Migrants have the right to access consular assistance, for example in case of detention or prior to expulsion.

Developed first as customary international law, many norms were codified after the Second World War in the Vienna Convention on Diplomatic Relations (1961) and the 1963 Vienna Convention on Consular Relations (VCCR).

Case Study
The obligation to allow consular support

On 9 January 2003, Mexico brought a case before the International Court of Justice (ICJ) against the United States of America in a dispute concerning alleged violations of articles 5 and 36 of the Vienna Convention on Consular Relations (VCCR) with respect to 54 Mexican nationals who had been sentenced to death in certain states of the United States. The ICJ held that there is an obligation to provide consular information as soon as it is realized that the arrested person is a foreign national, or that there are grounds for thinking that the person is probably a foreign national. The Court found that the United States had also violated the obligation to enable Mexican consular officers to communicate with, have access to and visit their nationals, in 49 cases, and to arrange for their legal representation, in 34 cases.

According to ICJ, violations of this right must be subject to judicial review in the receiving State’s courts.

Source

ICJ, Avena and other Mexican nationals (Mexico v. United States of America), 2004.

Table
Table 4. Examples of articles of the Vienna Convention on Consular Relations relevant to migrants

ARTICLE 5

Provides for the main functions of consular officers in protecting and assisting their nationals abroad

ARTICLE 36

Recognizes the right to consular notification and access in case a migrant gets arrested, detained or imprisoned in a foreign State
  • Issuing passports and travel documents
  • Safeguarding migrants’ interests in cases of succession due to death
  • Acting as a notary and civil registrar
  • Safeguarding the interests of migrant children or those who lack the full capacity to act for themselves
  • Ensuring court representation for those who are unable to defend their rights

Requires the State arresting or detaining the migrant to:

  • Inform the consular post of the sending State of the detention
  • Provide the detainee access to their consulate, should they request it

Forward any communication by the detainee to their consulate

 

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) also prescribes the right of migrant workers and members of their families to receive consular protection and assistance in case their rights as recognized by the convention are impaired. It specifically refers to consular protection and assistance in cases of expulsion. Moreover, according to the ICRMW, States parties should ensure that consular services, as well as other services needed to meet the social, cultural and other needs of migrant workers and members of their families, are provided. The ICRMW also recognizes the State’s obligation to inform the relevant consular authorities if a migrant has been detained; the migrant’s right to communicate with his or her consulate; and the State’s obligation to inform the detained migrant of such rights.

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International humanitarian law

International humanitarian law (IHL) is a set of rules that protects persons, including non-nationals, who are affected by armed conflict but are not, or are no longer, participating in the conflict (notably civilians). It seeks to limit the effects of the conflict, including restricting the means and methods of warfare. It applies only to armed conflicts, but applies to all parties involved in them, regardless of their responsibilities in starting the conflict and using force. Most of IHL is contained in the four Geneva Conventions and their Additional Protocols.

List
List 6. The four Geneva conventions
Four Geneva conventions

Note: This list is not exhaustive.

List
List 7. Additional protocols to the Geneva conventions
Additional protocols to the Geneva conventions 
  • Protocol I, 1977a
    Relating to the Protection of Victims of International Armed Conflicts
  • Protocol II, 1977b
    Relating to the Protection of Victims of Non-International Armed Conflicts
  • Protocol III, 2005
    Relating to the Adoption of an Additional Distinctive Emblem

Note: This list is not exhaustive.

Nearly all States are currently party to the Geneva conventions, and many provisions of IHL are accepted as customary international law. All four Geneva conventions, as well as Additional Protocol I, apply to international armed conflicts. As well, though, article 3 of each of the four Conventions and Protocol II prescribe the rules that must be respected by all parties to a non-international armed conflict.

The Fourth Geneva Convention is particularly important to international migration law (IML), as it:

  • Addresses the rights and obligations in relation to non-nationals on the territory of a party to the conflict.
  • Recognizes, for non-nationals:
    • The right to leave the territory in safety and dignity, except when it is contrary to the national interests of the State;
    • The right to freedom of religion;
    • The right to non-refoulement;
    • The right to humane treatment while detained; and
    • The equality with nationals in terms of medical treatment.
  • Establishes that children under 15 years, pregnant women and mothers of children under seven years benefit from the same extent of preferential treatment as the nationals of the State concerned.
  • Declares that parties to the conflict can only place people who are not their nationals in assigned residences if other measures of control are considered inadequate and “only if the security of the Detaining Power makes it absolutely necessary”.
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Air law

Air law regulates the use of airspace and aviation. The main principle of international air law is that every State has complete and exclusive sovereignty over the airspace above its territory, including over its territorial sea.

Based on this principle of airspace sovereignty, every State is entitled to regulate the entry of foreign aircraft and their passengers into its territory. Also, people who enter a State’s territory in this way are subject to the laws of that State. The principle of airspace sovereignty implies that the carrier is responsible for ensuring that arriving passengers follow the migration laws of the destination State. This implied responsibility is based on article 13 of the 1944 Convention on International Civil Aviation, which 193 States have ratified.

States established the International Civil Aviation Organization (ICAO) to administer the Convention on International Civil Aviation. The ICAO is a United Nations specialized agency. It works with Member States and industry groups to reach consensus on international civil aviation standards and recommended practices (SARPs) and policies in support of a safe, efficient, secure, economically sustainable and environmentally responsible civil aviation sector. The SARPs take the form of annexes to the 1944 Convention.

Central features of air law as it relates to migration include the following:

  • Annex 9 to the 1944 Convention provides guidance material pertaining specifically to the facilitation of immigration formalities. It also requires States to admit into their territory its nationals who have been removed from another State, and to provide travel documents to facilitate such returns.
  • According to the annex, the airline carrying the passenger is responsible for the passenger until the passenger is accepted for examination by immigration authorities.
  • If a passenger is refused entry to the State, the carrier is responsible for taking the passenger back to a State that would accept the passenger.
  • The annex also requires the airline’s due diligence on whether passengers comply with the State’s entry requirements; if it does not, the airline can be fined by the concerned State.
  • The Trafficking Protocol and the Smuggling Protocol require States parties to adopt legislative or other appropriate measures) to ensure that airplanes (and other means of transport) operated by commercial carriers are not used in the commission of offences. For instance, commercial carriers (including all transportation companies and the owner or operator of any means of transport) must determine whether passengers possess the travel documents required to enter the receiving State.
  • European Union legislation aims to harmonize the financial penalties imposed by Member States on carriers that transport, into the territories of Member States, non-European Union nationals lacking the required admission documents.
  • However, carrier sanctions have been criticized from a refugee protection perspective. For instance, a person seeking asylum might not be in possession of the required travel documents. In such a situation, the airline officials do not have the mandate or the skills to assess the international protection claim of the asylum seeker. It is likely in this situation that the airline would simply refuse to allow the person to get on the plane. This would interfere with the right of the person to seek asylum and due process, and with the right to be protected from refoulement, depending on the case.
Trade law

International trade law governs relationships between States for the cross-border movement of goods, services and intellectual property. After the Second World War, States ratified the General Agreement on Tariffs and Trade (GATT), aiming to ensure a stable trade and economic environment. GATT led to the establishment of the World Trade Organization (WTO) in 1995. Whereas GATT mainly dealt with trade in goods, the WTO and its agreements also cover trade in services, government procurement and intellectual property.

Mode 4 of the General Agreement on Trade in Services

Labour mobility is covered under a very limited scope by Mode 4 of the General Agreement on Trade in Services (GATS – Annex on the Movement of Natural Persons). GATS is a multilaterally agreed framework that aims to liberalize trade in services and applies to all 164 Member States of the WTO. It sets out four possible modes under which trade in service can occur. The fourth of these concerns the movement of people. Although it does so only in a very specific context, Mode 4 was one of the first international agreements regulating the movement of people, and remains important.

Mode 4 of GATS covers only natural persons (that is, not trusts, charities or corporations). It addresses the movement of people who are either service suppliers (such as independent professionals or contractual service suppliers) or who work for a service supplier and are present in another WTO Member State to supply a service (such as workers reassigned to work in office space in a different country, or intracorporate transferees). It does not concern people seeking access to the employment market in the destination Member State, nor does it affect measures regarding citizenship, residence or employment on a permanent basis. States’ commitments under Mode 4 are narrow, and they address only selected categories of people, mostly people linked to a commercial presence (for example, intracorporate transferees) and highly skilled migrant workers (managers, executives and specialists). Other restrictions frequently inscribed in the agreements that States make to manage these specialized workers include defined duration of stay; quotas, including on the number, sectors, categories or proportion of foreigners employed; pre-employment conditions; and residency and training requirements (Klein Solomon, 2007: 112).

Regional and bilateral agreements

At the regional and bilateral level, there exist two kinds of arrangements related to free movement: trade agreements and regional economic communities.

Trade agreements at the bilateral and regional level tend to follow the WTO Mode 4 model; that is,  commitments about the movement of workers are undertaken within the larger context of trade in services. Examples in Africa include the South African Development Community (SADC) and Common Market for Eastern and Southern Africa (COMESA). More recent bilateral trade agreements tend to have deeper Mode 4 commitments – that is, more specifications about the management of the mobility of workers – and more recognition of qualifications provisions.

The period after the Second World War was characterized by efforts towards regional economic integration. This led to the establishment of regional economic communities that included conditions for the free movement of people. The free movement of people established by regional economic communities ranges from general endeavours to facilitate the free movement of persons through to narrower, more specific Mode 4-like commitments. As a result, free movement undertaken in regional economic communities can vary from very open regimes, such within the European Union, to regimes that undertake a phased approach, such as the Association of Southeast Asian Nations (ASEAN), Common Market for the South (MERCOSUR), Economic Community of West African States (ECOWAS) and Organisation of Eastern Caribbean States (OECS).

A shared recognition of qualifications and skills is one of the key requirements to operationalize such free movement protocols and trade agreements. Technological developments, such as outsourcing, online services and e-commerce, have added a new dimension to the movement of persons within the trade context.

Key messages
  • International migration law (IML) defines States’ obligations and rights in the field of migration, as well as the rights of migrants.
  • IML is an umbrella term that includes various norms from many branches of international law, which are complementary and mutually reinforcing. It includes international and regional instruments.
  • Branches of international law under IML include: human rights law, labour law, refugee law, transnational criminal law, nationality law, law of the sea, humanitarian law, diplomatic and consular law, air law and trade law.
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