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Abduction is explicitly recognized as one of the means in the definition of trafficking in persons (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(a)).

“The instruments of ‘acceptance’ or ‘approval’ of a treaty have the same [meaning and] legal effects as ratification and consequently express the consent of a state to be bound by a treaty. In the practice of certain states acceptance and approval are used instead of ratification when, at a national level, constitutional law does not require the treaty to be ratified by the head of state [Arts 2 (1) (b) and 14 (2), Vienna Convention on the Law of Treaties 1969]” (United Nations Treaty Collection, Glossary of Terms Relating to Treaty Actions (2016)).

Accession has the same meaning and legal effect as ratification, but it is the term normally used when the State becomes party to a treaty already in force.

Article 15 of the Vienna Convention on the Law of Treaties stipulates that “the consent of a State to be bound by a treaty is expressed by accession when: (a) The treaty provides that such consent may be expressed by that State by means of accession; (b) It is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or (c) All the parties have subsequently agreed that such consent may be expressed by that State by means of accession.” ((adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331).

The acquisition of nationality can occur at birth or after birth. The most common modes of acquisition of nationality at birth are the acquisition based on descent (jus sanguinis) or based on birth on the territory of the State concerned (jus soli). Nationality can also be acquired after birth for example by adoption, legitimation of a child born out of wedlock, marriage, naturalization or as the result of the ceding of territory from one State to another.

In the migration context, detention often takes the form of administrative detention. Administrative detention is usually less regulated and affords fewer guarantees of legality and due process to those who are detained than criminal detention.

A non-national has been “admitted” if he or she has passed through a border crossing point (air, land or sea) and is permitted to enter by immigration authorities. A non-national who has

entered irregularly is not considered to have been admitted.

The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (UNGA Res 41/85 (3 December 1986)) set forth a number of commonly agreed principles and guidelines to ensure the protection of children in relation to national and inter-country adoptions.

Age assessments are commonplace in State immigration procedures used in the absence of documentary evidence to determine the age of an individual and whether the individual

should be treated as a child or adult. The Committee on the Rights of the Child (CRC), in its General Comment No. 6, instructs that “identification measures include age assessment and should not only take into account the physical appearance of the individual, but also his or her psychological maturity. Moreover, the assessment must be conducted in a scientific, safe, child and gender-sensitive and fair manner, avoiding any risk of violation of the physical integrity of the child; giving due respect to human dignity; and, in the event of remaining uncertainty, should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a child, she or he should be treated as such” (CRC, General Comment No. 6 Treatment of Unaccompanied and Separated Children Outside their Country of Origin (1 September 2005) UN Doc. CRC/GC/2005/6, para. 31(i)).

“In the restrictive sense, the term ‘agreement’ means an agreement intended to have an obligatory character but usually of a less formal or significant nature than a treaty or convention… The designation ‘agreement’ is given to a treaty which is usually in the form of a single instrument and which generally differs from a ‘convention’ in that it deals with a narrower or less permanent subject-matter“ (J. Grant and J. Barker (eds), Parry and Grant Encyclopedic Dictionary of International Law (3rd edition, Oxford University Press, 2009).

According to the Draft Articles the definition covers both individuals with the nationality of another State and stateless persons.

The terms alien is sometimes used as synonymous to foreigner, non-national or non-citizen. Although the term is often used in domestic legal settings, it tends to bear a negative connotation suggesting an artificial distance and sense of “otherness”. For this reason, to label those who are not nationals of a given country other terms should be preferred, such as “non-nationals” or “migrants”.

Alternative care is a State’s duty flowing from the International Convention on the Rights of the Child, 1989: “Where the child’s own family is unable, even with appropriate support, to provide adequate care for the child, or abandons or relinquishes the child, the State is responsible for protecting the rights of the child and ensuring appropriate alternative care, with or through competent local authorities and duly authorized civil society organizations” (United Nations General Assembly, Guidelines for the Alternative Care of Children (24 February 2010) UN Doc A/RES/64/142, para. 5). While alternative care might be needed for any child irrespective of his/her migration status, it is all the more central for unaccompanied or separated migrant children who shall benefit from the same level of care and protection as children being nationals of the State (ibid., paras 9(b) and 140-52).

International human rights law provides that detention, including in the migration context, must only be used as a last resort, that is when alternatives cannot be applied. Examples of alternatives to detention include measures ranging from policy or legislative developments that have an impact on preventing unnecessary detention, to effective screening and identification procedures, community-based or casework-oriented models, bail, bond and surety options, open or semi-open centres, reporting requirements and case resolution options.

International humanitarian law distinguishes between two types of armed conflict: international armed conflict (IAC) and non-international armed conflict (NIAC):
An IAC exists whenever there is resort to armed force between two or more States. Article 2 common to the four 1949 Geneva Conventions stipulates that an “[a]rmed conflict…may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” (e.g. Geneva Convention Relating to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV) Art. 2).
Within the meaning of Article 3 common to the four 1949 Geneva Conventions, an NIAC consists in “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties” between governmental forces and organized non-State armed groups, or between such groups (ibid., Art. 3). An NIAC must in any case reach a minimum level of intensity and the parties involved in the conflict must show a minimum level of organization. This distinguishes an NIAC from internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. Additional Protocol II to the Geneva Conventions, however, further limits the definition of NIAC by specifying that NIACs are conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II) Art. (1)). This definition is narrower than the one in Common Article 3 of the Geneva Conventions, as it introduces a requirement of territorial control and does not apply to armed conflicts between non-State armed groups. This restrictive definition is however only relevant for the application of Protocol II (International Committee of the Red Cross, How is the Term “Armed Conflict” Defined in International Humanitarian Law? (Opinion Paper, March 2008).

Also called a migration card. In some States, border officials collect the card upon entry or departure, while in other States, the card, or a portion of it, is returned to the individual and must be presented upon departure from the State. International standards for such documents are defined by the International Civil Aviation Organization (ICAO) in the Convention on International Civil Aviation (adopted on 7 December 1944, entered into force 4 April 1947) 15 UNTS 295, Annex 9.

Also referred to as assets seizure or confiscation. An example relevant to migration include the impounding of a vehicle used for smuggling human beings into a State.

Integration policies formulated primarily on the principle of assimilation have been undergoing considerable criticism both within academia and among policy makers, given their onesidedness and failure to incorporate important relevant policy areas

such as social cohesion, transnationalism, diversity and tolerance. For those reasons, integration policies are no longer considered a desirable approach in integrating immigrants in countries of destination or transit (see, for instance, United Nations Office of the High Commissioner for Human Rights, Minority Rights: International Standards and Guidance for Implementation (2010) p. 8).

In the context of assisted voluntary return and reintegration, voluntariness is assumed to exist if two conditions apply: (a) freedom of choice, which is defined by the absence of physical or psychological pressure to enrol in an assisted voluntary return and reintegration programme; and (b) an informed decision which requires the availability of timely, unbiased and reliable information upon which to base the decision.

In some cases, an assessment may be needed by qualified professionals to determine the extent to which a person is capable to take such a free and informed decision, and who, should the person lack such a capacity, could legally take the decision on his or her behalf.

Assisted voluntary return programmes may provide different levels of assistance to reintegration and, in some cases, they don’t provide any assistance to this effect.

Generally, the term is used to refer to territorial asylum – asylum provided by a State to individuals in its territory. In some cases, asylum can also be granted on the premises of an embassy or a legation.

Diplomatic asylum may be granted by a State “in its diplomatic missions [and the private residences of the heads of mission] (diplomatic asylum in the strict sense), in its consulates,

on board its ships in the territorial waters of another State (naval asylum), and also on board its aircraft and of its military or paramilitary installations in foreign territory”, but not on the premises of international organizations (see United Nations General Assembly, Question of Diplomatic Asylum, Report of the Secretary General (22 September 1975) UN Doc. A/10150 (Part (II) para. 1).

Some States contest the existence of the right to grant diplomatic asylum. At the regional level, the right has been recognized in regional agreements such as the Convention on Diplomatic Asylum of the Organization of American States ((adopted 28 March 1954,

entered into force 29 December 1954) 1438 UNTS 104).

Article 3(1) of the Convention of the Rights of the Child stipulates “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”((adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3).

The best interests determination imposes to take into consideration the child well-being, which is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and

experiences (UNHCR, UNHCR Guidelines on Determining the Best Interests of the Child (2008) p. 15).

Bilateral labour arrangements is a broader term, compared to bilateral labour agreements, encompassing non-legal arrangements such as memorandums of understanding (MoUs), as well as “non-governmental” arrangements, for example arrangements between national employment agencies in different countries.

The International Labour Organization (ILO) Recommendation concerning Migration for Employment (Revised) (RO86 (1 July 1949)), adopted contextually to the ILO Convention (No. 97) Concerning Migration for Employment ((adopted 1 July 1949, entered into force 22 January 1952) 120 UNTS 71), in its annex “Model Agreement on Temporary and Permanent Migration for Employment, including Migration of Refugees and Displaced Persons”. In some cases, trade agreements or other regional cooperation platforms will also provide provisions for labour mobility.

Biometric scanning is the process whereby biometric measurements are collected and enrolled in a computer system with the purpose of using the measurements to either verify or search for a person’s identity. Some governments have introduced the use of biometrics as an improved security measure in issuing passports, visas or residence permits.

A birth certificate is usually the basis for the issuance of all other identity documents and serves as a confirmation of the person’s identity in governmental records.

According to Article 7.1 of the Convention on the Right of the Child ((adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3): “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents”. The registration of a child’s birth enables the child to obtain a birth certificate. “In some cases, the issuing of a certificate automatically follows birth registration, while in others a separate application must be made. In either case, a birth certificate is a personal document issued to an individual by the state” (United Nations Children’s Fund (UNICEF), Birth Registration Right from the Start (2002) Innocenti Digest 9, p. 2). Birth registration is central to prevent statelessness as a lack thereof may be a cause of statelessness (United Nations Office of the High Commissioner for Human Rights, Birth Registration and the Right to Everyone to Recognition Everywhere as a Person before the Law (17 June 2014) UN Doc. A/HRC/27/22, paras. 23 and 24).

Measures to manage borders include the imposition by States of visa requirements, carrier sanctions against transportation companies bringing irregular migrants to the territory, and

interdictions at sea. Under international human rights law and international refugee law, States have a responsibility to ensure that border management legislation, policies and practices adhere to human rights and refugee law and respect the rights of all people moving across their borders despite their migration status.

The United Nations Office of the High Commissioner for Human Rights’ Recommended Principles and Guidelines on Human Rights at International Borders (2014) provide guidance on how to ensure border management and governance activities comply with human

rights standards.

The term encompasses: border guards, consular and immigration officials, border police, staff at border detention facilities, immigration and airport liaison officers, customs officials, coast guard officials, officials in charge of phytosanitary control and other front line officers and staff performing border governance roles.

Practical Handbook for Border Guards (Schengen Handbook) annexed to Council of the European Union, Commission Recommendation Establishing a Common “Practical Handbook for Border Guards (Schengen Handbook)” to Be Used by Member States’ Competent Authorities when Carrying out the Border Control of Persons (9 November 2006) EU Doc 15010/06, para. 13.

This broad definition extending to any areas where border governance is exercised, such as embassies or consulates issuing visas, has been chosen because of its relevance in the migration context. Generally, the term “international borders” is used as a synonym of boundary.

The boundaries define the limitation of each State’s territorial jurisdiction. Boundaries are “three-dimensional in nature in that they include the airspace and subsoil of the State, the terra firma within the boundary, and the maritime domain of the State’s internal waters and territorial sea.” (J. Law (ed), A Dictionary of Law (8th edition, Oxford University Press, 2015)).

Such exchange occurs through transnational communication networks as well as through regular or occasional travel between the country of origin and destination. In many migration corridors, the paradigm of brain drain/gain/waste/circulation is getting replaced with an approach focused on skills (for example development, recognition, transfer).

The negative effects of the emigration of (highly) skilled workers on the country of origin (“brain drain”) have been contested in recent policy discourse and literature, however, pointing to challenges related to offering employment to these workers at home, but also highlighting the positive impact of migration through “brain circulation”, knowledge transfer and “social remittances”. As a result, a more acceptable framework for discussing labour mobility has been around the notion of “skills”, such as skills development, matching, recognition and transfer.

In the context of hazard-induced migration crisis, recovery typically begins in the immediate aftermath of disaster, driven by the spontaneous efforts of the affected populations themselves. However, the recovery strategies adopted by affected populations

oftentimes reproduce risk conditions that had precipitated disaster and displacement in the first place. This calls for measures that reduce risk levels or exposure and vulnerability of affected populations to the effects of hazards and strengthen resilience by “building back better” in recovery, rehabilitation and reconstruction (International Organization for Migration (IOM), Strategic Work Plan on Disaster Risk Reduction 2017–2018 (Draft, 2017, p. 12).

In the migration context, in the instance of an appeal against a rejection decision, a non-national seeking admission into a State must prove that he or she meets the criteria for entry under the laws of the State and/or international law. In the context of refugee status determination procedures, “it is the applicant who has the burden of establishing the veracity of his/her allegations and the accuracy of the facts on which the refugee claim is based. […] In view of the particularities of a refugee’s situation, the adjudicator shares the duty to ascertain and evaluate all the relevant facts” (United Nations High Commissioner for Refugees, Note on Burden and Standard of Proof in Refugee Claims (16 December 1998) para. 6).

In many circumstances when legal guardians do notexist and cannot be appointed, caregiver is used to indicate the adult in charge of care of a child. It is also used in the context of unaccompanied and separated children. As further noted by theACE Toolkit: “Where possible, the child should have continuity in who provides their day to day care. Frequent changes of placement and caregiver should always be avoided. The Caregiver should not be the child’s key worker or child protection worker” (L. Melville Fulford, Alternative Care in Emergencies (ACE) Toolkit, Extended Guidance (Save the Children 2012) p. 9).

Carrier sanction regimes often assert financial accountability upon a carrier that has transported irregular migrants, intentionally or unintentionally, for the costs associated with the stay and return of the migrant as well as additional monetary penalties.

A certificate of identity is normally issued by States to non-nationals, such as stateless persons, or other persons who are unable to obtain a travel document from their country of nationality or those who are in urgent need of a travel document for compassionate or humanitarian reasons. Certificates of identity have to be distinguished from national identity cards that, generally, can be issued to both nationals or permanent residents and which, in some local border regimes or regional arrangements, allow the holder to cross an international border, usually for a limited period of time and for a limited distance from the border.

Article 1(C) of the 1951 Convention Relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137) stipulates that the Convention shall cease to apply to a person recognized as a refugee if: “(1) He has voluntarily reavailed

himself of the protection of the country of his nationality; or (2) Having lost his nationality, he has voluntarily re-acquired it; or (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or (4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or (5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; … (6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence” (see also, Organization for African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45, Art. 1(4)).

For example, the law may establish that a non-national holding a student visa, on completion of studies, is entitled to seek a change of status and to replace his or her student visa to a work visa.

Under international law, protection against abduction is set forth in Article 35 of the United Nations Convention on the Rights of the Child ((adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3) that stipulates “States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”.

The abduction of children within one country or across frontiers for the purpose of, for example, economic exploitation, sexual exploitation or sale is considered as a form of trafficking (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237

UNTS 319, Art. 3(a) and (b)).

Among the core international labour standards adopted under the auspices of the International Labour Organization (ILO), two conventions deal with child labour: ILO Convention (No. 182) on the Worst Forms of Child Labour ((adopted 17 June 1999, entered into force 19 November 2000) 2133 UNTS 161), and ILO Convention (No. 138) on the Minimum Age for Admission to Employment and Work ((adopted 26 June 1973, entered into force 19 June 1976) 1015 UNTS 297). The latter sets a standard for the minimum age of employment as no “less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years” (Art. 2(3)). Minimum ages are also set depending on the type of labour. The majority of States apply a minimum age of employment between the ages of 14 and 16. The ILO Convention (No. 138) sets a minimum age at which children can start work depending on nature of the work: 18 (or 16 under strict conditions) for hazardous work; 15 as the basic minimum age; 13–15 for light work.

Article 3 of the Trafficking Protocol stipulates that: “[t]he recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article” (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(c)). Letter d of the same Article also defines a child as “any person under eighteen years of age” (ibid., Art. 3(d)).

Circular migration has been applied in many contexts. It has been used to describe migration that takes place spontaneously (for example in border regions, within regional integration processes such as the European Union, or between two or more countries in which a person has a legal right to reside in more than one country). It has also been promoted by States and development actors through specially designed programmes and schemes assisting migrants to migrate abroad, usually temporarily, with the purpose of taking up an employment and returning back to their country of origin. Particular caution should be exercised in designing programmes of circular migration, however, as this form of migration may not necessarily be the best solution for sectors of the labour market facing long-term structural shortages where more permanent forms of entry and long-term integration may be better suited to the needs of both employers and migrant workers.

Circular migration can also be used as a coping strategy in the context of climate change and environmental degradation. Circular migration schemes can thus be an effective way to help

supplement local incomes and build the resilience of communities affected by climate change.

These rights include but are not limited to the rights enshrined in the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) which are to be enjoyed without discrimination and include: the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment; freedom from slavery and servitude; freedom from arbitrary arrest or detention; freedom of movement within a State; right to liberty and security of the person; equality before the courts; right to a fair and public hearing by an impartial tribunal in respect of criminal charges; prohibition of retroactive criminal liability; right of privacy of the family, the home or correspondence; freedom of thought, conscience and religion; freedom of expression; right to peaceful assembly; freedom of association and of participation in public affairs; right to vote and to be elected.

These rights were originally conceived as imposing exclusively negative obligations on States, as opposed to economic, social and cultural rights, requiring State action. However, with the development of the interpretation and of the jurisprudence of human rights bodies both at the international and regional levels, today it is undisputed that these rights also impose some positive obligations upon States. An example is the right to life, which does not only oblige States to refrain from arbitrarily killing a person but also to protect the person’s life, regardless of whether the threat comes from other individuals, a State organ or even the environment Human Rights Committee, General Comment No. 36: Article 6 (The Right to Life) UN Doc. CCPR/C/GC/36 (30 October 2018) paras. 21 and 26).

This is a working definition of the International Organization for Migration with an analytic and advocacy purpose which does not have any specific legal value.

Climate migration is a subcategory of environmental migration; it defines a singular type of environmental migration, where the change in the environment is due to climate change. Migration in this context can be associated with greater vulnerability of affected people, particularly if it is forced. Yet, migration can also be a form of adaptation to environmental stressors, helping to build resilience of affected individuals and communities.

The term “climate/environmental refugee” is used to refer to a category of environmental migrants whose movement is clearly of a forced nature. The term has initially been used by academics, the media and advocacy groups to draw attention to this issue and encourage the development of forms of international protection for persons obliged to leave their habitual homes because of environment or climate change related reasons. The term “climate/ environmental refugee” has now largely been accepted as having the potential to be misleading; so, the terms “environmental migrant” or “displaced person” should be used instead.

Indeed, the notion of a “climate refugee” is not a term of art in international law. Individuals forced to leave their country because of environmental or climatic processes or events would not necessarily meet the definition of a refugee under Article 1A(2) of the Convention Relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137). Beyond a few exceptional cases, their government is generally willing to protect them, even if it may be unable to do so, and they are not persecuted on any of the Convention’s grounds. Moreover, most of those who flee environmental degradation or disaster, including when due to climate change, do not cross an international border, which is an additional requirement for the application of the refugee definition (J. McAdam, From Economic Refugees to Climate Refugees? Review of International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (2009) 31 Melbourne Journal of International Law 579).

Coercion is explicitly recognized as one of the means in the definition of trafficking in persons (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(a)).

The prohibition of collective expulsion is expressly embodied in several international human rights treaties. At the universal level, Article 22(1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3), stipulates that “migrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually”. At the regional level, the American Convention on Human Rights ((adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123) provides in Article 22(9) that “[t]he collective expulsion of aliens is prohibited”. Article 4 of Protocol No. 4 to the European Convention on Human Rights ((adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221) stipulates that “[c]ollective expulsion of aliens is prohibited”. Similarly, Article 26(2), in fine, of the Arab Charter on Human Rights ((adopted 22 May 2004, entered into force 15 March 2008) in 12 (2005) International Human Rights Reports 893) states that “[c]ollective expulsion is prohibited under all circumstances”. In the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217), the term mass expulsion is used instead of collective expulsion. Article 12(5) of the Charter only prohibits mass expulsions of non-nationals which are aimed at “national, racial, ethnic or religious groups”.

Commercial carriers can play a role in preventing irregular migration by checking the possession or validity of their passengers’ travel documents. Under Articles 11(3) of both the Protocols to the United Nations Convention against Transnational Organized Crime on Smuggling and Trafficking, States are required to establish the obligation of commercial carriers to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State (see Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319; and Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 507).

Note: Complementary pathways for admission of refugees may

include:

• medical evacuations;
• pathways for reuniting a person with international protection needs with a member of his or her family in the third country;
• private or community sponsorship programmes, including community-based programmes promoted through the Global Refugee Sponsorship Initiative (GRSI);
• humanitarian visas, humanitarian corridors and other
• humanitarian admission programmes;
• educational opportunities for refugees (including women and girls), including through grant of scholarships and student visas, potentially supported by partnerships between governments and academic institutions; and,
• labour mobility opportunities for refugees, including through the identification of refugees with skills that are needed in third countries. (United Nations High Commissioner for Refugees, The Global Compact on Refugees, General Assembly Official Records, UN Doc. A/73/12 (Part II) (13 September 2018) para. 95. See also New York Declaration for Refugees and Migrants, A/RES/71/1, Annex I, para. 14(a)).

Complementary international protection refers to forms of protection, however termed, which are complementary to the refugee status and have been established at the national and regional levels to translate, to a certain extent, the principle of non refoulement, under international/regional human rights law, into some sort of status. At the regional level, the European Union uses the term “subsidiary protection” to refer to complementary protection granted to persons who are not covered by the Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137) but are in need of international protection.

Complementary protection is nowadays closely linked to the principle of non-refoulement. Persons who fall under the broader definition of refugees provided for in regional instruments, such as the Convention Governing the Specific Aspects of Refugee Problems in Africa ((adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45) and the Cartagena Declaration on Refugees ((22 November 1984) Colloquium on the International Protection of Refugees in Central America, Mexico and Panama), are refugees and should be referred to as such. While building on the Refugee Convention, these two instruments also extend the category of refugees to persons who have fled their country because of circumstances including generalized violence, external aggression, occupation, foreign domination, internal conflicts, massive violation of human rights or other circumstances seriously disturbing public order.

General Assembly resolutions have recognized that UNHCR’s protection mandate extends to these groups (see, ex multis, United Nations General Assembly, Report of the United Nations High Commissioner for Refugees, UNGA Res 3143 (XXVIII) (14 December 1973)).

Beneficiaries of complementary forms of protection should enjoy a formal legal status with defined rights and obligations, and should be issued with documents certifying that status. The status should extend for a period of time which is long enough to allow the beneficiaries to regain a sense of normalcy in their lives. It should last for as long as protection is required (United Nations High Commissioner for Refugees, Complementary Forms of Protection: Their Nature and Relationship to the International Refugee Protection Regime (2000) p. 3).

Art. 5 of The Vienna Convention on Consular Relations ((adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261) including, among others, protecting the interests of the sending State and its nationals in the receiving State; issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State; helping and assisting nationals of the sending State; acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature; and, safeguarding the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons.

The terms protection and assistance in relation to consular functions are often used interchangeably. However “consular protection” is usually understood as applying to cases concerning a claim against a government or one of its organs for allegedly infringing the rights of a national of another State, whilst “consular assistance” is generally viewed as aimed not at redressing a wrong, but at responding to a state of need in which the migrants find themselves or at providing administrative services that may be necessary when abroad (such as marriage or birth registrations, replacement of documents, etc.) (R. Perruchoud, Consular Protection and Assistance in R. Cholewinski, R. Perruchoud and E. MacDonalds (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press 2007) pp. 71-85).

Article 65(2) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3) stipulates that “State parties shall facilitate as appropriate the provision of adequate consular and other services that are necessary to meet the social, cultural and other needs of migrant workers and members of their families”. The right is also referred to in Article 16(7)(a) and Article 23 of the ICRMW with regard to the cases of detention or expulsion of a migrant worker respectively.

The object of consular registration is to facilitate the action of the consular mission, particularly the exercise of consular protection.

According to Article 33(1) of the United Nations Convention on the Law of the Sea ((adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3): “in its contiguous zone, a State may exercise the necessary control to (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea and (b) punish infringement of the above laws and regulations committed within its territory or territorial sea”.

Counselling can include both pre- and post-test counselling and involves, for instance, the provision of information about medical tests that migrants need to undergo as part of the migration or visa application process.

In the context of movements of internally displaced persons (IDPs) the term “place of destination” should be used.

There is a notion of temporariness in the concept of transit. However, for many migrants, particularly those migrating irregularly, the journey to the intended destination can take months or years. This challenges the very notion of transit and triggers the question on how much time needs to pass for the country of transit to be considered as a destination (United Nations Office of the High Commissioner for Human Rights, Situation of Migrants in Transit (2015) p. 5).

The United Nations Department of Economic and Social Affairs (UN DESA) defines a country of usual residence as: “The country in which a person lives, that is to say, the country in which he or she has a place to live where he or she normally spends the daily period of rest” (UN DESA, Recommendations on Statistics of International Migration, Revision 1 (1998) p. 92).

The term might be correlated with a need for international protection, including refugee status. It is also often used in the context of disasters and the effects of climate change to refer to situations where people flee their impacts.

As further noted by the UNESCO Universal Declaration on Cultural Diversity: [t]hus defined, cultural pluralism gives policy expression to the reality of cultural diversity. Indissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities that sustain public life” ((adopted 2 November 2001) Art. 2).

The two principle elements in the process of the formation of customary international law are: a general practice of a number of States acquiesced in by others (diuturnitas), and the conviction that the practice is required by or consistent with the prevailing law (opinio juris) (P. Grant and J.C. Barker (eds), Encyclopedic Dictionary of International Law (2nd edition, Oxford University Press 2004. Concerning the opinio juris element, the International Court of Justice ruled that: “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation” (North Sea Continental Shelf Cases [1969] ICJ Rep, para. 77). Several provisions in the Universal Declaration of Human Rights, including the prohibition against slavery, torture, arbitrary detention and extra-judicial killings, are generally recognized to have become part of customary international law ((adopted 10 December 1948) UNGA Res 217(A)). The right to leave any country including one’s own, the principle of non-discrimination and the principle of nonrefoulement, which are particularly relevant in the context of migration, are also commonly considered customary law.

Degrading treatments are one of the forms of ill-treatments proscribed by a number of human rights treaties, including Article 7 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171), Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ((adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85); and, at the regional level, Art. 3 of the European Convention on Human Rights ((adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221), Article 5(2) American Convention of Human Rights ((adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123), Article 5 of the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217), Article 8 of the Arab Charter on Human Rights ((adopted 22 May 2004, entered into force 15 March 2008) in 12 (2005) International Human Rights Reports p. 893).

In its General Comment No. 20, the Human Rights Committee considered unnecessary “to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment [which constitutes torture or cruel, inhuman or degrading treatment or punishment]; the distinction depend on the nature, purpose and severity of the treatment applied” Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment (10 March 1992) para. 4, in Compilation of General Comments and Recommendations Adopted by Human Rights Treaty Bodies (1994) UN Doc. HRI/GEN/1/Rev. 1, 30). The European Court of Human Rights has recognized that a treatment can be characterized as degrading and be in breach of the Convention even in the absence of an intention by the author to degrade the victim Khlaifia and Others v Italy App no 16483/12 (ECtHR 15 December 2016) para. 160(a).

The risk of degrading treatment in the country of return can trigger the application of the prohibition of refoulement (Human Rights Committee, General Comment No. 20, para. 9). The European Court of Human Rights, for example, found a violation of the principle of non-refoulement in cases in which asylum seekers had to be sent back to a country in which the living and detention conditions were degrading (MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011) para. 366). In the same case it also clarified that “it may well suffice for the victim to be humiliated in his own eyes, even if not in the eyes of others” (see, among others, ibid. para. 220).

Normally a spouse or child. In some cases, children above the age of majority, and up to a specified age, who are still dependent on their parents.

Article 49(1) of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War ((adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287) prescribes that, in times of occupation, “Individual or mass forcible transfers, as well as deportation of civilian protected persons from the occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motives”. The definition of deportation and its difference with forcible transfer are not clear under international humanitarian law, although it seems to be that deportation refers to forced displacement across international borders while a transfer takes place within the territory of one State (V. Chetail, The Transfer and Deportation of Civilians in A. Clapham, P. Gaeta and M. Sassoli (eds), The Geneva Conventions: A Commentary (Oxford University Press 2015) 1188 and 1189). In any case, both are prohibited in times of occupation by virtue of Article 49(1) of Geneva Convention IV and customary law (see International Committee of the Red Cross, Customary International Humanitarian Law (Vol 1, ICRC and Cambridge University Press, 2005) pp. 457– 459). Although not used in provisions relating to non-international armed conflict, deportation is arguably covered in the broader prohibition of forced displacement (V. Chetail, The Transfer and Deportation of Civilians, pp. 1205–1206; see Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609, Art. 17(1) and (2)). The only exception to the prohibition of deportation arises when the civilians’ security or imperative military reasons so require. This last condition nevertheless calls for a significantly high threshold as not any military reasons would qualify as imperative. The violation of this prohibition constitutes a war crime (see Geneva Convention IV, Art. 147; Protocol Additional (I) to the Geneva Conventions of 13 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 3, Art. 85(4)(a); Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Art. 8(2)(a)(vii) and (2)(e)(viii)).



In international criminal law, deportation is also an underlying offence of the crime of genocide and of the crime against humanity when committed as part of a widespread or systematic attack against the civilian population with knowledge thereof (see respectively, Rome Statute of the International Criminal Court Arts 6(e), 7(1)(d)).

In 1964, a committee established by the former United Nations Commission on Human Rights studied the right of everyone to be free from arbitrary arrest, detention and exile and developed the following definition of “detention”: “The act of confining a person to a certain place, whether or not in continuation of arrest, and under restraints which prevent him from living with his family or carrying out his normal occupational or social activities.” This definition was adopted by the United Nations Working Group on Arbitrary Detention (WGAD) in 2012. Because international instruments do not always use the same terminology to refer to detention, the former United Nations Commission on Human Rights, in Resolution 1997/50, encouraged use of the term “deprivation of liberty” in order to eliminate any differences in interpretation between the various terms. The WGAD has made clear that all forms of deprivation of liberty are “detention” for the purposes of determining whether someone is being arbitrarily detained (United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention (24 December 2012) UN Doc. A/HRC/22/44, para. 55).

In the past the most common term used to refer to deprivation of nationality was denationalization. Common grounds for deprivation of nationality are: entry into foreign civil or military service or the enrolment to fight with a foreign army or militia, acceptance of foreign distinctions, prolonged residence abroad or conviction of certain crimes. International law prohibits the arbitrary deprivation of nationality (Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217(A), Art. 15(2); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123, Art. 20(3); Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) in 12 (2005) International Human Rights Reports 893, Art. 29).

Detention of migrants occurs as a consequence of both immigration and emigration and the label of the term reflects the use of detention in both occurrences. Within the migration context, detention is ordered by either administrative or judicial authorities, for reasons such as to establish identity, pending the processing of an immigration or asylum claim or for the purpose of enforcing an expulsion order. In some instances, detention is applied without any formal order. International human rights law protects the right to liberty and security of persons, and applies conditions on any deprivation of liberty (see of the International Convention on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Arts 9–10). Several international legal instruments stipulate that detention must not be arbitrary or unlawful, must have a legal basis in national law and must be used only when strictly necessary, such as in the case of a risk of absconding or of a conduct by the individual which risks hampering immigration procedures or the enforcement of a removal order. The safeguards set forth in human rights law apply, irrespective of whether or not the measure is considered as detention by the national authorities or under the relevant legislation, every time a person is deprived of his or her liberty. The Working Group on Arbitrary Detention underlines that “immigration detention should gradually be abolished” (United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention (18 January 2010) UN Doc. A/HRC/13/30, para. 58) and “alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention” (United Nations Commission on Human Rights, Report of the Working Group on Arbitrary Detention, Addendum, Report on the Visit of the Working Group to the United Kingdom on the Issue of Immigrants and Asylum Seekers (18 December 1998) UN Doc. E/CN.4/1999/63/Add.3, para. 33). States have also expressed support for alternatives to detention in the New York Declaration for Refugees and Migrants ((adopted 19 September 2016) UN Doc. A/71/L.1, para. 33). Finally, the detention of children is never in their best interests and constitutes a clear violation of their rights (United Nations Committee on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights of All Children in the Context of International Migration (2012) para. 78; see also the New York Declaration for Refugees and Migrants).

Migrants, irrespective of status, have been documented to be held in detention in a number of physical contexts including, but not limited to: designated immigration detention facilities; unofficial immigration detention centres; removal or transit centres; closed reception or processing centres; semi-open reception or processing centres; closed refugee camps; criminal prisons, police lockups, or police stations; private security company compounds, airports, ships, etc. Irrespective of the name given to a facility, if a person is deprived of his or her liberty, the safeguards guaranteed by international law apply.

Article 10 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) stipulates that: “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. Migration detention centres should not bear similarities to prison-like facilities. In particular, the authorities in charge of these facilities should not be security forces; the officials working in these types of facilities should be trained in human rights, cultural sensitivity, and age and gender considerations, particularly with respect to the needs of migrants in vulnerable situations; disciplinary rules should be markedly different from those in place in prison facilities; and women should be separated from men.

States are responsible for ensuring humane conditions of detention even in privately-run detention facilities (see United Nations Human Rights Committee, Mr Carlos Cabal and Mr Marco Pasini Bertran v Australia (19 September 2003) UN Doc. CCPR/ C/78/D/1020/2001).

As further noted in IOM’s Strategy to Enable, Engage and Empower Diaspora ((n.d.) 1), “IOM also refers to diaspora as transnational communities, because in a world of unprecedented global mobility, they comprise people who are connected to more than one country. The transnational nature of diaspora implies that these people are crucial when it comes to connecting countries and communities, because they can call on multiple networks, relate to different identities and share a sense of belonging to more than one community”.

Diplomatic protection is traditionally a mechanism designed to secure reparation for injury to the national of a State. Diplomatic protection is thus generally conceived as a right of the State and not of the individual. However, Art. 19 of the Draft Articles on Diplomatic Protection stipulates that States “should give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred”. The same Article also recommends that States transfer to the injured person any compensation obtained.

Diplomatic protection claims are subject to the rule of exhaustion of domestic remedies, therefore a State cannot submit a claim before the injured person has exhausted all local remedies (International Law Commission, Draft Articles on Diplomatic Protection with commentaries (2006) in UN Doc. A/61/10, Art. 15).

The International Law Commission adopted the following alternative definition of disaster, which includes an express reference to mass displacement: “‘disaster’ means a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society” (International Law Commission, Protection of Persons in the Event of Disasters: Titles and Texts of the Preamble and Draft Articles 1 to 18 of the Draft Articles on the Protection of Persons in the Event of Disasters Adopted, on Second Reading, by the Drafting Committee (27 May 2016) UN Doc. A/CN.4/L.871, Art. 2(a)).

Such displacement results from the fact that affected persons are (i) exposed to (ii) a natural hazard in a situation where (iii) they are too vulnerable and lack the resilience to withstand the impacts of that hazard. It is the effects of natural hazards, including the adverse impacts of climate change, that may overwhelm the resilience or adaptive capacity of an affected community or society, thus leading to a disaster that potentially results in displacement (The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (Vol. 1, December 2015) p. 4) .

Disaster-displacement may take the form of spontaneous flight, an evacuation ordered or enforced by authorities or an involuntary planned relocation process. Such displacement can occur within a country (internal displacement), or across international borders (cross-border disaster displacement) (ibid.).

As drivers of disaster risk are typically the same as those of disaster-related displacement risk, measures that reduce disaster risk, build resilience, and diversify the livelihoods of vulnerable populations will also reduce the risk of displacement. The Internal Displacement Monitoring Centre (IDMC) has developed a historical displacement model to estimate disaster-induced displacement risk. Such estimates indicate that disaster-related displacement risk has quadrupled since the 1970s. This increase in displacement risk suggests that exposure has increased more quickly than vulnerability has been reduced. IDMC has also established a Global Displacement Risk Model measuring “the average number of people expected to be displaced each year [by sudden-onset hazards] considering all events that could occur over an extended timeframe” (IDMC, Global Disaster Displacement Risk: A Baseline for Future Work (October 2017) p. 10). Emphasizing that the “AAD [Average Annual Displacement] should be considered as an indicator of the potential magnitude of displacement, not as an exact value” (ibid.), IDMC estimated that people living in countries in South and East Asia and Pacific regions have the highest risk of being displaced as a result of the large populations within these countries and their exposure to multiple risks of natural hazards therein (ibid., pp. 12–15).

Effective disaster risk reduction policies and strategies can make vital contributions to helping countries and communities prevent, mitigate or adapt to disaster-related risks that otherwise can result in large-scale unmanaged migration, including displacement. Such policies and strategies also include improving capacities of States and vulnerable communities to anticipate, respond to, and recover from the impacts of disaster and consequent displacement through strengthened disaster preparedness, and to foster resilience through risk-informed recovery, rehabilitation and reconstruction (see International Organization for Migration (IOM), Migration, Risk and Resilience in the Context of Sudden or Slow-Onset Disaster: Towards Actionable Commitments of the Global Compact for Safe, Orderly and Regular Migration (Draft) (2017) p. 2).



When living conditions deteriorate as a result of the effects of natural hazards, environmental degradation or climate change, individuals and families may resort to mobility-based strategies to reduce risk and build resilience by seeking alternative opportunities within their country or abroad. Managed properly, circular or temporary migration can be effective in helping people protect life and assets, access assistance and livelihood opportunities and progressively return to normalcy as conditions allow. Migration can also support resilient recovery in communities and countries of origin by allowing migrants to send back remittances and return home with newly acquired knowledge, technology and skills (see The Nansen Initiative, Agenda for the Protection of Cross- Border Displaced Persons in the Context of Disaster and Climate Change (2015) p. 9; IOM, IOM Compendium of Activities on DRR and Resilience (2013); IOM, Outlook on Migration, Environment and Climate Change (2014); and IOM, The Atlas of Environmental

Migration (2017)).

Reasons to grant protection of this kind include serious health risks (when falling below the threshold of States’ obligation of non-refoulement) or risks stemming from extreme poverty in case of return, or natural disasters in the country of origin. Although sometimes inspired by international human rights law, discretionary forms of protection are in general not mandated by it and remain at the discretion of the State, unless the principle of non-refoulement applies. The Executive Committee of the United Nations High Commissioner for Refugees in its Conclusions on the Provision on International Protection Including Through Complementary Forms of Protection (2005) No. 103 (LVI), para. j, noted that “States may decide to allow prolonged stay for compassionate or practical reasons and recognize[d] that such cases must be clearly distinguished from cases where there are

protection needs”.

The principle of non-discrimination is a fundamental principle of human rights guaranteed in all human rights instruments. The CCPR clarified that in some cases States can legitimately treat differently persons or groups of persons who are in a different situation. However, the criteria for such differentiation should be reasonable and objective, the aim of the differential treatment should be legitimate under the Covenant and the measure adopted to achieve such aim be proportionate (Human Rights Committee, General Comment No. 18: Non-Discrimination (10 November 1989) para. 7, UN Doc. HRI/GEN/1/Rev.1, 26, para. 13).

As further noted in the definition provided by the United Nations Disarmament and Demobilization and Reintegration Resource Centre (UNDDR): “Former combatant status may be certified through a demobilisation process by a recognized authority. Spontaneously auto-demobilised individuals, such as deserters, may also be considered ex-combatants if proof of noncombatant status over a period of time can be given” (UNDDR, “excombatant”, General Integrated Disarmament, Demobilization, and Reintegration Standards, 1.20 Glossary: Terms and Definitions (1 August 2006) p. 7)). For IOM, it is preferable to use the term spontaneous disengagement, which infers the exit from a sanctioned violent extremist group by one’s own volition without the support of States or other international or national assistance. In traditional DDR, disengagement is a voluntary process, formal or informal, by which one or more individuals cease to be involved in armed forces or other armed groups, giving up their arms. Disengagement is distinct from demobilization which is a formal process by which an individual is recognized through legal procedures and institutions to formally have separated from an armed group.

Unlike the Guiding Principles on Internal Displacement, the above definition is meant to cover both internal and cross-border displacement. Principle 6 of the Guiding Principles stipulates the right to be protected against arbitrary displacement. Displacement is considered arbitrary in the following circumstances: “(a) When it is based on policies of apartheid, “ethnic cleansing” or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population; (b) In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand; (c) In cases of large-scale development projects, which are not justified by compelling and overriding public interests; (d) In cases of disasters, unless the safety and health of those affected requires their evacuation; and (e) When it is used as a collective punishment” (Guiding Principles on Internal Displacement, annexed to United Nations Commission on Human Rights, Report of the Representative of the Secretary- General, Mr Francis M. Deng, Submitted Pursuant to Commission Resolution 1997/39, Addendum (11 February 1998) UN Doc. E/ CN.4/1998/53/Add.2, Principle 6.2). In order not to be arbitrary, displacement shall also last no longer than required by the

circumstances (ibid., Principle 6.3).

In international humanitarian law, the (forced) displacement of civilians is prohibited and constitutes a war crime both in times of international and non-international armed conflicts except when required for their security or imperative military reasons (see Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, Art. 49(1); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II) Art. 17(1) and (2); Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Art. 8(2)(a)(viii) and (e)(viii)). The prohibition of individual or mass displacement is also endorsed by the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) (adopted 23 October 2009, entered into force 6 December 2012) Art. 4(4)(b)).

Although regular migrants are usually documented, there may be situations in which a regular migration status does not correspond to being documented. For example, within regional freedom of movement regimes, migrants, who are authorized to move within the region, may lack the document to prove that they are nationals of one of the Member States of the regional community, and therefore may be undocumented.

This rule is grounded on the principle of subsidiarity of international law and applies also to claims before human rights bodies. However, for human rights claims only the remedies that are accessible and effective must be exhausted. For example, Article 5(2)(b) of the Optional Protocol to the International Covenant on Civil and Political Rights states “The Committee shall not consider any communication from an individual unless it has ascertained that: … The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged” ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171).

The concept of “drivers of migration” is dynamic, reflecting an interaction of personal, social, structural, environmental and circumstantial factors working in tandem with local, national, regional and global level incentives and constraints. Drivers influence the decisions to migrate, whether the migration is internal or international, regular or irregular, and/or temporary or permanent; and they operate along a spectrum between voluntary and involuntary movement. Given a lack of agreed terminology, academics, policy-makers and practitioners often use the terms “drivers” and “root causes” synonymously to describe the underlying conditions or accumulation of grievances that progressively compel movement, including displacement. Drivers can also be understood as a broader term that encompasses “root causes”.

Also often referred to as “determinants of migration”, drivers can include a positive desire for change, entrepreneurship, skills transfer, family reunification, cultural expectations, and filling labour demands abroad, and/or include responding to sudden shocks, slow onset pressures, or chronic hardships, such as those associated with underdevelopment, poverty, food insecurity, poor governance, disasters, climate change, environmental degradation, cultural factors, inequalities, persecution, human rights violations, armed conflicts, violence or serious disturbances of public order, among others.

The right to due process of law and procedural protection is guaranteed to everyone, including non-nationals, in all procedures, including those relating to immigration, emigration, criminal charges, detention, expulsion or deportation. It is enshrined in various instruments of international law including, for example, Arts 9, 13 and 14 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171); Arts 5(2) and 13 of the European Convention on Human Rights ((adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221); Arts 7 and 8 of the American Convention on Human Rights ((adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123); Arts 6, 7 and 26 of the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217); and Arts 16, 18 and 83 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3).

Durable solutions for internally displaced persons generally include: sustainable reintegration at the place of origin (also referred to as return); sustainable local integration in areas where internally displaced persons take refuge (local integration); sustainable integration in another part of the country (settlement elsewhere in the country) ( The Brookings Institution – University of Bern Project on Internal Displacement, IASC Framework on Durable Solutions for Internally Displaced Persons (2010) p. A–1; see also International Organization for Migration, Progressive Resolution of Displacement Situations: Framework, 2016).

Durable solutions for refugees traditionally include: voluntary repatriation, local integration or resettlement.

In the context of migration crisis, early warning systems can be key to helping governments, communities and humanitarian agencies anticipate and prevent disaster and associated displacement, and, in the event a displacement situation still occurs, facilitate more timely and effective delivery of protection and assistance to affected populations. Effective early warning systems facilitate actions that address drivers of risk early on to avert mass displacement, and provide options, such as evacuation or planned relocation assistance, to those who otherwise risk becoming displaced. Early warning systems are also key to enabling governments, communities and humanitarian actors to pre-position shelter, food, medicines and other supplies in areas that are likely to receive large numbers of displaced persons (International Organization for Migration (IOM), IOM Strategic Work Plan on Disaster Risk Reduction 2017-2018 (Draft) (2017) 12).

The use of this term should be discouraged for a number of reasons. Firstly, categorizing migrants by a single reason of migration is questionable in light of the complex, and often overlapping, drivers of migration. Secondly, the term “economic migrant” is often juxtaposed to the term refugee to underline the fact that refugees are entitled to a specific protection under refugee law, whereas States have no obligations towards those migrating to seek better economic opportunities abroad. This is clearly contrary to the prescriptions of international law and overrides the universality of human rights.

For the above-mentioned reasons, the term should be used with caution particularly when describing mixed migration flows. The term “migrant worker”, as defined in the International Convention on the Rights of all Migrant Workers and Members of Their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, Art. 2.1), is a more neutral term and should be preferred. The term economic migrant should in turn only be used to refer to some very specific categories of migrants who are not covered under the migrant workers definition set forth by the International Convention, such as investors.

Economic migration differs from labour migration in that it is not necessarily for the purpose of seeking or entering into employment but may also include economic activities such as investment.

At the universal level, these rights are enumerated in the International Covenant on Economic, Social and Cultural Rights ((adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3), as well as other United Nations human rights treaties, including the International Convention on the Protection of the rights of All Migrant Workers and Members of their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3).

This definition is adapted from the one of long-term migrant provided by the Statistics Division of the United Nations Department of Economic and Social Affairs (UN DESA), which reads as follows: “A person who moves to a country other than that of his or her usual residence for a period of at least a year (12 months), so that the country of destination effectively becomes his or her new country of usual residence. From the perspective of the country of departure, the person will be a long-term emigrant and from that of the country of arrival, the person will be a longterm immigrant” (UN DESA, Recommendations on Statistics of International Migration, Revision 1 (1998) 18). The reference to 12 months as a minimum period of stay has been omitted with a view to covering those who emigrate for a shorter period, if the person has changed his or her usual residence. Given that also short-term emigrants are covered by the definition, and in line with UN DESA understanding of the term short-term migrant, persons who move in cases where the movement to that country is for purposes of recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimage are excluded. Ibid. Whether an emigrant is considered as long-term or short-term depends on the duration of stay in the country of destination. A person who stays away from the country for a period of three to twelve months is considered a short-term emigrant, whereas a person who stays away from the country for a period exceeding twelve months is considered a long-term emigrant. The definition of who is an emigrant can vary from one country to another.

There is no international agreement on a term to be used to describe persons or groups of persons that move for environment related reasons. This definition of environmental migrant is not meant to create any new legal categories. It is a working definition aimed at describing all the various situations in which people move in the context of environmental factors.

Migration in this context can be associated with greater vulnerability of affected people, particularly if it is forced. Yet, migration can also be a positive response to environmental stressors, helping to adapt to changes in the environment and to build resilience of affected individuals and communities.

Evacuations may take place both in the context of or after a disaster, a situation of violence or an armed conflict. In the context of disasters, an evacuation refers to the act of “[m]oving people and assets temporarily to safer places before, during or after the occurrence of a hazardous event in order to protect them” (United Nations General Assembly, Report of the Open-Ended Intergovernmental Expert Working Group on Indicators and Terminology relating to Disaster Risk Reduction (1 December 2016) UN Doc. A/71/644, p. 18).

Moreover, [e]vacuations may be:

Mandatory: when it is ordered and directed by authorities in cases in which it is judged that the risk to a population is too great to allow them to remain where they are, and where sheltering in place would likely entail a higher level of risk. A mandatory evacuation is not considered arbitrary or unlawful and thus permissible if it is done in accordance with the law, absolutely necessary under the circumstances to protect life, health or the physical integrity of the affected persons, and to the extent the emergency allows, in proper consultation with the affected population.

Advised: when an official evacuation advisory message is issued to enable early response and informed decision-making by the population at risk on whether and when to evacuate.

Spontaneous: when people evacuate their current location due to actual or perceived risk using their own means (self-evacuation) and without (or before) being officially advised or directed to do so. This may include people who leave areas outside a designated evacuation zones” (Camp Coordination and Camp Management Cluster, The MEND Guide: Comprehensive Guide for planning mass evacuations in disasters (2014) p. 17).

In the context of an armed conflict, evacuation of endangered areas is regulated by international humanitarian law. Article 49(2) of the 1949 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War ((adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287) provides: “The Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand”. Persons evacuated shall be transferred back to their homes as soon as the hostilities in the area in question have ceased. Evacuation is also implicitly foreseen during noninternational armed conflicts as an exception to the prohibition of displacement when the security of civilians or imperative military reasons so demand (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II) Art. 17(1); International Committee of the Red Cross Customary International Humanitarian Law, (Vol 1, ICRC and Cambridge University Press, 2005) Rule 129B). International humanitarian law also regulates the temporary evacuation of children both in times of international and non-international armed conflicts (see Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 3 (Additional Protocol I) Art. 78(1); and Additional Protocol II, Art. 4(3)(e)).

In the Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137), the exclusion clauses refer to Arts 1D, E and F. Arts 1 D and E exclude individuals who are already benefitting from protection either by organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees or by the host State as residents recognized as having the rights and obligations attached to nationality. According to Article 1F of the Refugee Convention persons excluded from the refugee status include: ”… any person with respect to whom there are serious reasons for considering that: (a) 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; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations…”. Similar exclusion clauses exist for other forms of international protection, such as complementary protection (see for instance the European Union Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L 337/9, Art.17).

The term is also used colloquially to identify nationals who have taken up residence in a foreign country, such as employees of multinational companies or international civil servants. The definition provided above captures the way the term is used in some national legislation, where expatriation involves the voluntary renunciation of one’s nationality or citizenship and thereby an absolute termination of all civil and political rights provided by such nationality or citizenship as of the date of such an act. Art. 15(2) of the Universal Declaration of Human Rights sets forth the right of everyone to change nationality ((adopted 10 December 1948) UNGA Res 217(A)).

The term “benefit”, as it is used in the definition, may encompass not only material, but also any other types of benefit.

Article 3(a) of the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime ((adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319) refers to the following forms of exploitation: prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs and other forms of exploitation defined in national law. This list should not be considered exhaustive.

According to Article 6(3)(b) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime ((adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 507), States are required to adopt such legislative and other measures as may be necessary to establish as aggravating circumstances those “that entail inhuman or degrading treatment, including for exploitation, of such migrants”.

The terminology used at the domestic or international level on expulsion and deportation is not uniform but there is a clear tendency to use the term expulsion to refer to the legal order to leave the territory of a State, and removal or deportation to refer to the actual implementation of such order in cases where the person concerned does not follow it voluntarily (W. Kälin, ‘Aliens, Expulsion and Deportation’ in R. Wolfrum (ed) Max Planck Encyclopedia of Public International Law (2014).

In the domestic law of most States, expulsion is a formal administrative or judicial act by the State since it is a decision by administrative or judicial authorities. It may be contested before the courts of the expelling State (United Nations, International Law Commission, Draft Articles on the Expulsion of Aliens, with Commentaries (2014) p. 4). However, in some cases, expulsion occurs even in the absence of a formal legal act that can be appealed.

Procedural safeguards are set forth in human rights law to ensure the expulsion of non-nationals is not arbitrary. Article 13 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) stipulates, “an alien lawfully in the territory of a State Party … may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall … be allowed to submit the reasons against his expulsion and to have his case reviewed”. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, Art. 22) extends the scope of application of the right to all migrant workers including those who are in an irregular situation and stipulates some specific safeguards with regard to expulsion that apply to all migrant workers and members of their family including those who are undocumented or in an irregular situation (i.e. adoption of the decision by competent authorities, obligations surrounding communication of the expulsion decision, right to appeal against the decision, right to compensation in case of annulment of the decision after it has been enforced, time to settle any claims for wages and right not to bear the costs of expulsion, except for the travel costs).

The process of extradition is usually based on a combination of national legislation, bilateral treaties or, in some cases, multilateral conventions (see, for example the European Convention on Extradition (adopted 13 December 1957, entered into force 18 April 1960) ETS No 024). The rules surrounding extradition have to respect a number of principles, such as that of double-criminality (whereby the crimes charged must be a crime in the legal framework of both the extraditing State as well as the State where the person is being extradited to), the ne bis in idem principle, the speciality rule and, generally outside the scope of application of multilateral conventions, the principle of reciprocity (see, for example, European Convention on Extradition, Arts 2(1), 2(7), 9 and 14).

Persons extradited might be nationals (if not barred by the constitution or another law of the extraditing State), or nonnationals arrested on the State’s territory.

All extraditions should also respect the principle of nonrefoulement (see, Soering v The United Kingdom App no 14038/88 (ECtHR, 7 July 1989) para. 99).

Also referred to as offshore processing.

Facilitated migration may, for example, take the form of a streamlined visa application process, government assisted labour migration, or pre-departure orientation programmes.

A fair trial is a fundamental human right and stipulated in various international human rights instruments, such as Article 10 of the Universal Declaration of Human Rights ((adopted 10 December 1948) UNGA Res 217(A)); Article 14(1) of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171); Article 7(1) of the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217); Article 8(1) of the American Convention on Human Rights ((adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123), and Article 6(1) of the European Convention on Human Rights ((adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221).

The right to family unity consists of the right of a family living in a country of which some or all of the family members do not have nationality not to be separated, through for example the expulsion of one of the family members. This right is not limited to nationals living in their own State and is protected by international law. The right is not absolute and can be limited in accordance to national law and international standards.

The right is stipulated in the following instruments: Article 16 of the Universal Declaration of Human Rights ((adopted 10 December 1948) UNGA Res 217(A)); Arts 17 and 23 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171); Article 10 of the International Covenant on Economic, Social and Cultural Rights ((adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3); Article 10 of the Convention on the Rights of the Child ((adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3); Article 44 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3); Article 17 of the American Convention on Human Rights ((adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123); Article 18 of the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217); Article 8, European Convention on Human Rights ((adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221); Article 16, European Social Charter ((adopted 18 October 1961, entered into force 26 February 1965) ETS No 035); Article 16, European Social Charter (revised) ((adopted 3 May 1996, entry into force 1 July 1999) ETS No 163).

While the proportion of female migrants has not changed greatly in recent decades – the female share of the total number of international migrants has remained between approximately 48–49 per cent from the years 2000 to 2015 (United Nations Department of Economic and Social Affairs, International Migration Report 2015 (2016) ST/ESA/SER.1/384, p. 8) – the characteristics of migration have changed considerably. More women migrate independently, rather than as members of a household, and they are actively involved in employment. The increasing number of women migrating independently has increased development opportunities but also led to certain gender-specific vulnerabilities such as trafficking of women for the sex industry, domestic work, for forced or servile forms of marriage, and deskilling of high qualified migrant women. Women comprise slightly less than half of all international migrants. This phenomenon also impacts the country of origin where children and elderly left behind need to assume new roles.

The notion of first country of asylum is sometimes used as grounds for considering an application for international protection inadmissible. As further noted by the United Nations High Commissioner for Refugees (UNHCR), “Application of the concept requires an individual assessment of whether the refugee will be readmitted to that country and granted a right of legal stay and be accorded standards of treatment commensurate with the 1951 Convention related to the Status of Refugees, and its 1967 Protocol, and international human rights standards, including protection from refoulement, as well as timely access to a durable solution. While accession to relevant international and regional instruments is a prerequisite for providing the necessary legal basis for the availability of protection and respect for rights, the actual practice of States and their consistent compliance with their obligations is decisive for determining the availability of such protection. […] When a State is considering applying the ‘first country of asylum’ […] concept …, the individual asylum seeker must have an opportunity within the procedure to be heard, and to rebut the presumption that she or he will be protected and afforded the relevant standards of treatment, in a previous State based on his or her circumstances” (UNHCR, Legal Considerations on the Return of Asylum seekers and Refugees from Greece to Turkey as Part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the Safe Third Country and First Country of Asylum Concept (23 March 2016) p. 2).

In European Union law, the concept of “first country of asylum” refers to the principle that: “Member States may consider an application for international protection as inadmissible … if: […] (b) a country which is not a Member State is considered as a first country of asylum for the applicant […]” (Art. 33(2)(b) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L 180/60). Article 35 of the Asylum Procedures Directive (recast) further provides that “[a] country can be considered to be a first country of asylum for a particular applicant if: (a) he or she has been recognised in that country as a refugee and he or she can still avail himself/herself of that protection; or (b) he or she enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement, provided [in both cases] that he or she will be readmitted to that country” (ibid). Furthermore, the same Article provides that the applicant concerned “shall be allowed to challenge the application of the first country of asylum concept to his or her particular circumstances” (ibid., Art. 35 in fine).

Fitness for travel checks may be conducted at any point before and during travel. Health risks associated with the travel or transport of individuals and populations result from an interaction of three factors: (a) the health conditions of the traveller (including age, pre-existing health conditions and social determinants of health and vulnerability); (b) the actual journey (including the duration and mode of transport); and (c) access to health services before and during travel and at the final destination. These three factors influence the nature and likelihood of adverse health outcomes during or after travel. Managing the health of those in movement operations involves the mitigation of risk and the attempt to prevent or minimize adverse outcomes. Risk mitigation may include referral for additional investigations, stabilization treatment and provision of special arrangements before, during and after travel.

Art. 4 of the Geneva Convention of the High Seas ((adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11) provides that: “Every State, whether coastal or not, has the right to sail ships under its flag on the high seas”. Article 5 stipulates that: “Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag”.

Article 98 of the United Nations Convention on the Law of the Sea ((adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3) sets forth the duty to render assistance to persons in distress: “1. Every State shall require the master of a ship flying its flag, in so far as he 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…”.

The notion of forced evictions does not apply to evictions carried out both in accordance with the law and in conformity with the provisions of international human rights treaties. Forced eviction does not automatically mean arbitrary displacement, but can be the first step leading to it.

The practice of forced marriage contravenes Article 16(2) of the Universal Declaration of Human Rights ((adopted 10 December 1948) UNGA Res 217(A)), which provides that: “Marriage shall be entered into only with the free and full consent of the intending spouses”. The right is also stipulated in Article 2 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ((adopted 7 September 1956, entered into force 30 April 1957) 266 UNTS 3); and, Article 1 of the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage ((adopted 7 November 1962, entered into force 9 December 1964) 521 UNTS 231). The Convention aims to eliminate child marriages and obliges States to take legislative action to specify a minimum age for marriage (Art. 2). Under International Criminal Law forced marriage has also been considered as a crime against humanity (Prosecutor v Brima, Kamara & Kanu (Judgement) No SCSL 2004- 16-A22 Feb. 2008, p. 202). Forced marriage is considered a form of gender-based violence.

While not an international legal concept, this term has been used to describe the movements of refugees, displaced persons (including those displaced by disasters or development projects), and, in some instances, victims of trafficking. At the international level the use of this term is debated because of the widespread recognition that a continuum of agency exists rather than a voluntary/forced dichotomy and that it might undermine the existing legal international protection regime.

Forced labour is explicitly recognized as a form of exploitation in the definition of trafficking in persons (Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(a)).

Article 49(1) of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War ((adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287) prescribes that, in times of occupation, “Individual or mass forcible transfers, as well as deportation of civilian protected persons from the occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motives”. The definition of forcible transfer and its difference with forcible deportation are not clear under international humanitarian law, although it seems to be that deportation refers to forced displacement across international borders while a transfer place within the territory of one State (V. Chetail, The Transfer and Deportation of Civilians in A. Clapham, P. Gaeta and M. Sassòli (eds), The Geneva Conventions: A Commentary (Oxford University Press, 2015) pp. 1188–1189). In any case, both are prohibited in times of occupation by virtue of Article 49(1) of Geneva Convention IV and customary law (International Committee of the Red Cross, Customary International Humanitarian Law (Vol 1, ICRC and Cambridge University Press, 2005) Rule 129). Although not used in provisions relating to non-international armed conflict, forcible transfer is arguably covered in the broader prohibition of forced displacement (V. Chetail, The Transfer and Deportation of Civilians, 1205–1206; see, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II), Arts 17(1) and (2)).

The only exception to the prohibition of forcible transfer arises when the civilians’ security or imperative military reasons so require. This last condition nevertheless calls for a significantly high threshold as not any military reasons would qualify as imperative. The violation of this prohibition constitutes a war crime and a grave breach in international armed conflicts (See Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, Art. 147; Additional Protocol Additional to the Geneva Conventions of 13 August 1949, and relating to the Protection of Victims of International Armed Conflicts, (adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS 3 (Additional Protocol I) Art. 85(4)(a); and Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS

3, Art. 8(2)(a)(vii) and (e)(viii)).

In international criminal law, a forcible transfer is also an underlying offence of the crime of genocide and of the crime against humanity (see respectively, Rome Statute of the International Criminal Court, Arts 6(e) and 7(1)(d)).

Fraud is one of the means of coercion mentioned in the definition of trafficking of the Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(a)).

In a broader migration context, fraudulent documents may also include false education certificates in connection with the recognition of diplomas and qualifications as well as fraudulent documents relating to employment such as curricula vitae (CVs) and reference letters from employers.

Under human rights law the right to freedom of movement does not entail a right to enter and to remain in a State which is not the individual’s own country, except when the State has an obligation to admit the person under international law (e.g. in application of the principle of non-refoulement).

Article 12 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) describes this right as follows: “(1) 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; (2) Everyone shall be free to leave any country, including his own; (3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. (4) No one shall be arbitrarily deprived of the right to enter his own country”.

As noted in the Human Rights Committee’s No. 27: “The wording of article 12, paragraph 4, does not distinguish between nationals and aliens (‘no one’). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase ‘his own country’. The scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. […] The language of Article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. Since other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country, States parties should include in their reports information on the rights of permanent residents to return to their country of residence” (Human Rights Committee, General Comment No. 27: Freedom of Movement (Article 12) (1 November 1999) UN Doc. CCPR/C/21/Rev.1/Add.9, para. 20).

Freedom of movement is also a key right of nationals of States Parties to a regional free movement regime (e.g. European Union, Economic Community of West African States, Mercado Común del Sur (Mercosur) and the Caribbean Community).

The term is also commonly used to identify the boundary.

Although notions of gender are deeply rooted in every culture, they are also changeable over time and have wide variations both within and between cultures (Council of the International Organization for Migration, Gender Equality Policy 2015–2019 (19 November 2015) C/106/INF/8/Rev.1, Glossary, p. 12).

Gender equality does not imply that all individuals are the same, but rather that the interests, needs, capacities and priorities of all are taken into consideration (Council of the International Organization for Migration, Gender Equality Policy 2015–2019 (19 November 2015) C/106/INF/8/Rev.1, Glossary, p. 12).

As further notes the United Nations Economic and Social Council (ECOSOC) Resolution, “it is a strategy for making [the] concerns and experiences [of people of any gender] an integral dimension of design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that [all may] benefit equally and inequality is not perpetuated [or exacerbated]. The ultimate goal is to achieve gender equality” (ECOSOC, Resolution 1997/2: Agreed Conclusions (18 July 1997) in UN Doc. A/52/3/Rev.1).

Gender-based violence is often used in the same context as violence against women and girls, however it should be noted that gender based violence can affect anybody.

For example, the criminal law principle of ne bis in idem which protects an individual from duplicate legal action for the same crime preventing a person from being tried for a crime for which he or she has previously been convicted or acquitted. Other principles of criminal law common to many national systems are considered as general principles of law, such as the two principles of legality: nullum crimen sine lege and nulla poena sine lege. General principles of law constitute a subsidiary source of international law because they can only be resorted to where there is no applicable norm in treaty law or customary law.

Article 38(1) of the Statute of the International Court of Justice (adopted 24 October 1945, entered into force 24 October 1945) states that the Court, whose function is to decide on disputes under its jurisdiction in accordance with international law, shall apply, inter alia, “the general principles of law recognized by  civilized nations”. However, because of its colonial connotation, the term “civilized nations” is no longer acceptable and must be understood as referring to the main national legal systems. Today, general principles of law encompass the principles common to the major legal systems of the world. Their function is thus to fill gaps in the international legal system (V. Chetail, Sources of International Migration Law in B. Opeskin, R. Perruchoud and J. Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press, 2012) p. 82).

Although not explicitly mentioned among the underlying acts of the crime of genocide, acts of sexual violence such as rape have been interpreted by the ad hoc international criminal tribunals and the International Criminal Court as measures causing serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and/or intended to prevent birth within the group (see e.g. The Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998) paras. 508, 706–707, 731; The Prosecutor v Radislav Krstic (Judgment) IT-98-33-T (2 August 2001) para. 513; International Criminal Court, Elements of Crimes (2002) p. 2, fn 3.

A marriage must be determined genuine for decisions on family reunification, access to residence permit and to nationality. In many States, there is a presumption that a couple intended to create a durable family unit and the marriage is genuine unless there is evidence to the contrary.

The definition of a refugee in the 1951 Convention relating to the Status of Refugees refers to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137) Art. 1A(2)). These grounds need to be linked to the act of persecution but may also be established by the inability or unwillingness of the country of origin to provide protection (United Nations High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 12 (2 December 2016) HCR/GIP/16/12, para. 32). While these grounds may overlap with one another in a particular case, persecution must be at least for one of these reasons for the purposes of formal refugee status determination (see, UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (reissued December 2011) paras. 66–67). As the applicant for refugee status “may not be aware of the reasons for the persecution feared... [i]t is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met in this respect” (ibid.). In this respect, the motives or intent of the persecutor is neither decisive nor necessary (UNHCR, Guidelines on International Protection No. 12, para. 32).

Grounds of inadmissibility are typically designed to preclude entry of undesirable non-nationals, such as persons without valid travel documents, persons with criminal convictions, persons who are believed to be a danger to public health or public safety, or persons who have been previously deported. Even if one of these grounds is present States have an obligation to assess the individual situation of the person applying for admission in the State and to verify whether he or she is entitled to international protection as a refugee or on other grounds. Additionally, grounds of inadmissibility should not be applied in a discriminatory manner.

A guarantee may be demanded of non-nationals seeking entry to a State to depart from the State at the end of their stay. A guarantee can also be used as an alternative to immigration detention.

This term today has generally been replaced by terms such as temporary migrant worker or specified employment worker.

The notion of “habitual residence” is often treated as a simple, non-technical concept as decisions on the habitual residence of an individual are usually made in light of the ordinary meaning of the terms “habitual”’ and “residence” and the facts of the particular case.

Each year millions of people are displaced by the adverse effects of natural hazards, such as floods, tropical storms, earthquakes, landslides, droughts, salt water intrusion, glacial melting, glacial lake outburst floods, and melting permafrost. Of these, the great majority is displaced by weather- and climaterelated hazards. The largest increases in displacement resulting from the effects of natural hazards are related to sudden-onset weather and climate-related hazards, and floods in particular. In addition, people are increasingly forced to move because of the slow-onset effects of sea level rise, desertification or environmental degradation. Climate change, combined with people’s increasing exposure and vulnerability, is expected to magnify these trends, as extreme weather events become more frequent and intense in the coming decades (see Internal Displacement Monitoring Centre, Global Estimates 2015: People Displaced by Disasters (2015); The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (Vol. I, December 2015)).

Health is a positive concept emphasizing social and personal resources, as well as physical capabilities. “Migration is a social determinant of health that can impact the health and well-being of individuals and communities. Migration can improve the health status of migrants and their families by escaping from persecution and violence, by improving socioeconomic status, by offering better education opportunities, and by increasing purchasing power for ‘left behind’ family members thanks to remittances. However, the migration process can also expose migrants to health risks, such as perilous journeys, psychosocial stressors and abuses, nutritional deficiencies and changes in life-style, exposure to infectious diseases, limited access to prevention and quality health care, or interrupted care” (International Organization for Migration, Migration Health Division, Migration Health in the Sustainable Development Goals: “Leave No One Behind” in an Increasingly Mobile Society (Position Paper undated) 1). See also, World Health Organization, Refugee and Migrant Health (webpage undated), www.who.int/migrants/en/.

Also referred to as immigration medical examination or medical screening, health assessments usually involve a medical examination and a review of the migrant’s medical history. Related services include preventive and/or curative interventions or referral for treatment, counselling, health education, preparation of the required immigration health forms and travel health assistance.

As stipulated in Article 87 of the United Nations Convention on the Law of the Sea ((adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3): “The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law”. Article 98 of the Convention sets forth the provision of a duty to render assistance on the high seas, by stipulating that: “1. Every State shall require the master of a ship flying its flag, in so far as he 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…; (c) after a collision, to render assistance to the other ship, its crew and its passengers…”.

At the national level, States adopt differing criteria for the determination of migrant’s skillset. Typically the skillset of a migrant is delineated by level of education, occupation, income or a combination thereof.

At the international level, there are systems for classifying two of the above criteria – education and occupation. Typically occupations classified at Skill Level 3 and 4 of the International Standard Classification of Occupations 08 (ISCO-08) Skill Level are considered as highly skilled occupations (see International Labour Organization, International Standards Classification of Occupations (Volume I) ISCO-08, 12-15. The major groups of occupations in these skill levels are managers, professionals, technicians and associate professionals. (ibid., p. 14, table 1).

The knowledge and skills required for performance in occupations at Skill Level 3 and 4 are usually obtained as the result of acquiring levels of education at level 5 (short-cycle tertiary education), 6 (bachelor’s or equivalent level), 7 (master’s or equivalent level) or 8 (doctoral or equivalent level) of the International Standard Classification of Education 2011 (Organization of Economic Co-operation and Development, European Union and United Nations Educational, Scientific and Cultural Organization’s Institute for Statistics, ISCED 2011 Operational Manual: Guidelines for Classifying National Education Programmes and Related Qualifications (2015) p. 17).

The jurisprudence of human rights bodies clarified that, irrespective of the name which is given to it, whenever people are deprived of their liberty in a given facility, they are considered to be detained and the safeguards applicable to detention apply including the prohibition on penalizing asylum seekers and refugees, under certain conditions, for irregular entry or stay.

While migrants may sometimes refer to their country of origin as their home country, this term should generally not be used as a descriptive label. Migrants may feel more at home in the country of destination, and designating their country of origin as their “home country” implies, in an exclusionary way, that this is where they belong.

In the context of returns, the term is used, as opposed to country of origin and as an alternative to country of destination or sending country to provide clarity in the identification the various countries involved. In other contexts, the term “host country” is generally best avoided, as it may imply a particular relationship between migrants (“guests”) and natives (“hosts”) which may be misleading and could undermine the integration of migrants.

The right to housing, land and property restitution is recognized in Principle 2 of the “Pinheiro Principles” (Principles on Housing and Property Restitution for Refugees and Displaced Persons, annex to United Commission on Human Rights, Final Report of the Special Rapporteur, Paulo Sérgio Pinheiro, (28 June 2005) UN Doc. E/CN.4/Sub.2/2005/17). These Principles represent soft law standards, but they are explicitly based on existing international, regional and national law.

The Pinheiro Principles also apply to internally displaced persons and to other similarly situated displaced persons who fled across national borders but who may not meet the legal definition of refugee, regardless of the nature or circumstances by which displacement occurred (ibid., Principle 1.2).

The term human mobility reflects a wider range of movements of persons than the term “migration”. The term is usually understood as also encompassing tourists that are generally considered as not engaging in migration.

As an example of the emergence of this term, the international organization members of the Advisory Group on Climate Change and Human Mobility created in the context of the Conferences of the Parties of the UN Framework Convention on Climate Change have started to use the term human mobility to cover all the broad range of types of movements that can take place in the context of climate change (Advisory Group on Climate Change and Human Mobility, Human Mobility in the Context of Climate Change UNFCCC - Paris COP21 (2015)).

Human rights are rights inherent to all human beings, regardless of sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.

Human rights are often expressed and guaranteed by law in the forms of treaties, customary international law, general principles and other sources of international law (United Nations Office of the High Commissioner for Human Rights, What Are Human Rights? (undated) www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx (last accessed 2 March 2018)). They are applicable both in times of peace and armed conflict and entail an obligation for States to respect, protect and fulfill individuals’ rights. At the universal level these rights are contained in the International Bill of Rights, comprising the Universal Declaration of Human Rights (UDHR) ((adopted 10 December 1948) UNGA Res 217(A)), the International Covenant on Economic, Social and Cultural Rights ((adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3), and the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) and have been developed by other treaties from this core. Fundamental to the concept and realization human rights are human rights principles. These are:

• the principle of universality (Art. 1 of the UDHR) according to which all people everywhere in the world are “born free and equal in dignity and rights” and, therefore, are rights-holders;
• the principle of inalienability, according to which rights are inherent to every human being and can never be taken away;
• the principle of indivisibility and interdependence, according to which there is no hierarchy among rights and the enjoyment of one right is dependent of the enjoyment of another.

As explains the Inter-Agency Standing Committee, “Humanitarian action is based on the premise that human suffering should be prevented and alleviated wherever it happens (referred to as the “humanitarian imperative”). While each humanitarian organization may subscribe to a broader set, there are four core and widely accepted humanitarian principles that guide humanitarian action: [humanity, impartiality, neutrality and independence]” (ibid., pp. 8–9). Humanitarian action is also referred to as humanitarian aid, assistance or relief, relief assistance or relief action. Concerning humanitarian emergency assistance more specifically, General Assembly Resolution 46/182 indicates that such assistance lays the foundation for recovery, transition and development: “There is a clear relationship between emergency, rehabilitation and development. In order to ensure a smooth transition from relief to rehabilitation and development, emergency assistance should be provided in ways that will be supportive of recovery and longterm development. Thus, emergency measures should be seen as a step towards long-term development” (United Nations General Assembly, Strengthening of the Coordination of Humanitarian Emergency Assistance to the United Nations (UN Doc. A/RES/46/182) 19 December 1991, para. 9).

Humanitarian admission is an expedited process that may be used for an identified population in an extremely insecure or vulnerable situation and in need of urgent protection. Upon admission, the beneficiaries are typically granted a status, which is usually temporary, and the ongoing need for protection is regularly reviewed.

Humanitarian border management is sometimes also referred to as “Crisis Border Management”, “Emergency Border Management” or “Emergency Prepareditioness” (International Organization for Migration, Internal Guidance Note on Humanitarian Border Management (internal document, 2014) para. 3).

The first explicit statement of humanitarian principles is found in the “Fundamental Principles of the Red Cross and Red Crescent” adopted in 1965. The principles of humanity, neutrality, impartiality, and independence have been endorsed in a number of General Assembly resolutions, including resolution 46/182 (Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations (19 December 1991) UN Doc. A/ RES/46/182) for the first three principles and resolution 58/114 (Strengthening of the Coordination of Emergency Humanitarian Assistance of the United Nations (5 February 2004) UN Doc. A/ RES/58/114) for the fourth one. These four principles and their definitions can be found in their respective entries in this Glossary.

Humanitarian visas can be granted by the visa-issuing authority of the State in the applicant’s country of origin or in a country of destination, and exceptionally also at the border of the visa-issuing State or to persons who are already within the State.

Beyond granting legal access to and temporary stay in the State, humanitarian visas rarely provide the person with any further entitlement to protection or services. Normally, the immigration or asylum status of a person with a valid humanitarian visa needs to be established upon arrival in the visa-issuing State, including, where applicable, through asylum procedures or procedures for other statuses.

Humanitarian visas can facilitate the international travel of asylum seekers or other migrants in vulnerable situations, often as a part of, among others, humanitarian admission, humanitarian corridors, family reunification, medical evacuations and other immigration programmes and practices.

While the majority of States issue humanitarian visas on various international protection grounds (refugee status, subsidiary protection status or others), some States also use humanitarian visas to enable immigration or stay within a country to persons in situations of high vulnerability and/or with special/humanitarian protection needs, including but not limited to:

• Victims of violations of human rights in the country of origin (Ley No. 761[2011] (Nicaragua), Art. 220),
• Victims of certain particularly heinous crimes in the country of destination (such as rape, torture, trafficking, female genital mutilation and others, e.g. Immigration and Nationality Act [1965] (United States) 8 U.S.C. Sec. 1101(a)(15)(U), as amended by Victims of Trafficking and Violence Protection Act of 2000, Sec. 1513(a)-(c))); or
• Victims of hate crimes (Código de Extranjería (Spain), Art. 126.1).
• Humanitarian visas can also be issued in case of:
  • Natural disasters (Lei No. 13.445 [2017] (Brazil), Art. 14.III, §3°);
  • Economic hardships in one’s country of origin (e.g. Peruvian Visas to Venezuelans, Decreto Supremo Nº 002-2017-IN (Peru));
  • Serious illnesses and lack of adequate treatment in the country of origin (Loi du 15 Décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Belgium), Art. 9ter, para. 1);
  • Individual vulnerabilities (e.g. 5 Decreto No. 37112-G [2012]: Reglamento de Extranjería (Costa Rica), Arts 2, 135 and 136; and Decreto Ejecutivo No. 320 [2008] (Panama), Arts 171 and 172).

Many other States do not specifically define the grounds to issue humanitarian visas and leave the decision to grant them discretionary, often to ensure compliance with international law obligations or to serve national interests (e.g Regulation (EC) No 810/2009 of the European Parliament and of the Council (European Union), Art. 25, para. 1(a); Aliens Act (2005: 716) (Sweden), Chapter 3, Section 4; Ley de migraciones No. 25.871 [2003] (Argentina), Art. 34).

Generally, the grounds to issue humanitarian visas are very broadly defined in national legislation which leaves a wide discretion to the authorities who are responsible for issuing the visa. This allows for flexibility and enables an individual determination. However, it also limits the possibility of judicial review, and renders the system largely unpredictable.

The most common identity documents are national identity cards and passports.

Good identity management includes: a policy (to determine the aim and scope of managing identity in that context); a governance procedure (to set rules and regulations); a sound infrastructure to ensure the security of identity; and, a system that ensures specific levels of quality is maintained and continuously improved.

A whole array of terms are used for those migrants who do not have the required legal documentation or authorization to enter and/or reside within a given territory. Terms such as illegal, unauthorized, undocumented, non-compliant, prohibited and irregular are a few terms of commonly used by States in this context.



The international community has, on several occasions, encouraged the use of the terms “undocumented” or “irregular” as an alternative to the term illegal. The United Nations General Assembly Resolution 3449 (Measures to Ensure the Human Rights and Dignity of All Migrant Workers (9 December 1975)) recognized that the term “illegal” should not be used to define migrants in an irregular situation. The term “irregular” is preferable to “illegal” because the latter carries a criminal connotation, is against migrants’ dignity and undermines the respect of the human rights of migrants. Migrants, as any human being, can never be illegal; they can be in an irregular situation, but it is inaccurate to refer to a person as “illegal”.

Concerning the term “alien”, and although it is often used in domestic legal settings, it tends to bear a negative connotation suggesting an artificial distance and sense of “otherness”. For this reason, other terms to label those who are not nationals of a given country should be preferred, such as “non-nationals” or “migrants”.

A whole array of terms are used for those migrants who do not have the required legal documentation or authorization to enter and/or reside within a given territory. Terms such as illegal, unauthorized, undocumented, non-compliant, prohibited and irregular are a few terms of commonly used by States in this context.

The international community has, on several occasions, encouraged the use of the terms “undocumented” or “irregular” as an alternative to the term illegal. The United Nations General Assembly Resolution 3449 (Measures to Ensure the Human Rights and Dignity of All Migrant Workers (9 December 1975)) recognized that the term “illegal” should not be used to define migrants in an irregular situation. The term “irregular” is preferable to “illegal” because the latter carries a criminal connotation, is against migrants’ dignity and undermines the respect of the human rights of migrants. Migrants, as any human beings, can never be illegal; they can be in an irregular situation, but it is inaccurate to refer to a person as “illegal”.

This definition is adapted from the one of long-term migrant provided by the Statistics Division of the United Nations Department of Economic and Social Affairs (UN DESA): “A person who moves to a country other than that of his or her usual residence for a period of at least a year (12 months), so that the country of destination effectively becomes his or her new country of usual residence. From the perspective of the country of departure, the person will be a long-term emigrant and from that of the country of arrival, the person will be a long-term immigrant” (UN DESA, Recommendations on Statistics of International Migration, Revision 1 (1998) p. 10). The reference to 12 months as a minimum period of stay has been omitted with a view to covering those who emigrate for a shorter period of time, provided that the person has changed his or her usual residence. Given that also short-term emigrants are covered by the definition, and in line with UN DESA understanding of the term short-term migrant, persons who move in cases where the movement to that country is for purposes of recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimage are excluded (ibid.). Whether an emigrant is considered as long-term or short-term depends on the duration of stay in the country of destination. A person who stays away from the country for a period of three to twelve months is considered a short-term emigrant, whereas a person who stays away from the country for a period exceeding twelve months is considered a long-term emigrant. The definition of who is an emigrant can vary from one country to another.

Many countries establish quotas (or caps) on the number of migrants to be admitted each year. Immigration quotas can be used for overall immigration levels as well as according to specific criteria including nationality, skill level, occupation, or immigration category (i.e. whether one is entering as a migrant worker or as part of refugee resettlement or family reunification programme).

According to Article 1(2) of the Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries ((adopted 27 June 1989, entry into force 5 September 1991) 1650 UNTS 383), “Self-identification as indigenous shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply”.

The principle of informed consent is based on the moral and legal premise of patient autonomy and the patient’s right to make decisions about his or her own health and medical conditions. In the context of migration health, informed consent may concern the individual migrant’s consent, for instance, to undergo a migration related health assessment and medical tests obtained following a counselling session.

Besides being recognized as a war crime under Article 8 (2) (a)(ii)(2) of the Rome Statute of the International Criminal Court ((adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3), the prohibition of inhuman treatment is also enshrined in a number of human rights treaties, including Article 7 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171); Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ((adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85); and, at the regional level, Article 3 of the European Convention on Human Rights ((adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221); Article 5.2. of the American Convention of Human Rights ((adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123); Article 5 of the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217); and, Article 8 of the Arab Charter on Human Rights ((adopted 22 May 2004, entered into force 15 March 2008) in 12 (2005) International Human Rights Reports 893).

The European Court of Human Rights has recognized that the distinction between torture and other types of ill-treatment, such as inhuman treatment, is to be made on the basis of “the intensity of the suffering inflicted,” torture entailing the most intense suffering (Ireland v the United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para. 162). The risk of inhuman treatment in the country of return can trigger the application of the prohibition of refoulement.

Integration does not necessarily imply permanent residence. It does, however, imply consideration of the rights and obligations of migrants and societies of the countries of transit or destination, of access to different kinds of services and the labour market, and of identification and respect for a core set of values that bind migrants and receiving communities in a common purpose.

In the refugee context, however, local integration as a durable solution would imply permanent residence as it refers to refugees’ “permanent settlement in a country of first asylum, and eventually being granted nationality of that country” (United Nations High Commissioner for Refugees, Master Glossary of Terms (2006) p. 14).

Inter-State Consultation Mechanisms on migration comprise of global processes on migration, interregional forums on migration (bridging two or more regions) and regional consultative processes on migration (covering one region).

The internal flight alternative is also referred to as “internal protection alternative” or “relocation alternative”’.

Internal migration movements can be temporary or permanent and include those who have been displaced from their habitual place of residence such as internally displaced persons, as well as persons who decide to move to a new place, such as in the case of rural–urban migration. The term also covers both nationals and non-nationals moving within a State, provided that they move away from their place of habitual residence.

Whilst the Guiding Principles on Internal Displacement are not binding, they have become an authoritative reference on how States should respond to internal displacement. Adopted by the then Human Rights Commission (Guiding Principles on Internal Displacement, annexed to United Nations Commission on Human Rights, Report of the Representative of the Secretary- General, Mr Francis M. Deng, Submitted Pursuant to Commission Resolution 1997/39, Addendum (11 February 1998) UN Doc. E/ CN.4/1998/53/Add.2), the Guiding Principles have been endorsed by the United Nations General Assembly (2005 World Summit Outcome (20 September 2005) UN Doc. A/60/L.1, para. 132), widely used as an advocacy tool by international organizations and non-governmental organizations, translated into two binding documents at the regional level in Africa (the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) (adopted 23 October 2009, entered into force 6 December 2012) and the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons (adopted 30 November 2006, entered into force 21 June 2008)), and incorporated in a number of States’ policies or legislation.

Crimes against humanity, war crimes and crimes of genocide are today considered as having a customary nature. The reason why they are related to migration is because some of them can involve or be a cause of forced movements.

Every State has a duty to prosecute or extradite individuals responsible for the commission of those crimes; individual responsibility for those crimes is also enforceable at the international level.

The International Health Regulations have been adopted by 194 countries and entered into force on 15 June 2007. The Regulations provide, among others, for States Parties to set up national surveillance systems (Art. 5) and to notify WHO of events that may constitute a public health emergency of international concern (Art. 6). If the existence of a public health emergency of international concern is confirmed, the Director-General shall issue temporary recommendations which may impact on the ability and/ or conditions of persons’ movement and which may include to: “require medical examinations; review proof of [and/or require] vaccination or other prophylaxis; … place suspect persons under public health observation; implement quarantine or other health measures for suspect persons; … refuse entry of suspect and affected persons; refuse entry of unaffected persons to affected areas; and implement exit screening and/or restrictions on persons from affected areas” (Art. 18(1)).

International humanitarian law is also known as the law of war, the law of armed conflict or jus in bello. It does not regulate whether a State may actually use force; this is governed by important, but distinct, rules of international law on States’ recourse to the use of force (jus ad bellum) set out in the United Nations Charter. The main sources of international humanitarian law are the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. The Geneva Convention IV relative to the Protection of Civilian Persons in Time of War ((adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287) contains a number of provisions that are specifically applicable to civilian non-nationals (Arts 35–46). For example, Article 4 distinctly defines civilian non-nationals as a group of protected persons within the Convention, and Article 27 stipulates that, as protected persons, civilian non-nationals “are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity”.

A number of other provisions are also relevant to prevent displacement, such as the prohibition of forcible transfers.

The first part of the definition is also the one used in the Global Migration Group, Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations, p. 14 www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf (last accessed 14 May 2019).

For statistical purposes, the United Nations Department ofEconomic and Social Affairs (UN DESA) defines an “international migrant” as “any person who changes his or her country of usual residence” (Recommendations on Statistics of International Migration, Revision 1 (1998) para. 32). The UN DESA definition excludes movements that are due to “recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimages” (ibid).

Similarly to the above definition, for statistical purposes, the United Nations Department of Economic and Social Affairs (UN DESA) defines an “international migrant” as “any person who changes his or her country of usual residence” (Recommendations on Statistics of International Migration, Revision 1 (1998) para. 32). The UN DESA definition excludes movements that are due to “recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimages” (ibid).

Rather than an independent legal regime with its own set of rules, International Migration Law is an umbrella term used to describe the various bodies of laws, principles and norms that together regulate migration. The bodies of law that are relevant to migration are, among others: International Human Rights Law, Labour Law, Humanitarian Law, Law of the Sea, Maritime Law, Transnational Criminal Law, Consular Law, Refugee Law and Nationality Law.

As further underlined by the United Nations High Commissioner for Refugees (UNHCR), “risks that give rise to a need for international protection classically include those of persecution, threats to life, freedom or physical integrity arising from armed conflict, serious public disorder, or different situations of violence” (UNHCR, Persons in Need of International Protection (June 2007) p. 1).

This definition aims to cover all persons who move to another country for study purposes and who enter the country of destination under a study visa or subsequently obtain a study visa when already in the country. The United Nations Educational, Scientific and Cultural

Organization, Institute for Statistics (Glossary (2014) http://uis.unesco.org/en/glossary-term/international-or-internationally-mobile-students (last accessed 12 April 2018)) defines the term more narrowly to identify students who “have crossed a national or territorial border for the purpose of education and are now enrolled outside their country of origin”.

The question of international surrogacy is not dealt with by an international convention. However, it has been recognized that it may have an impact on the practical application of The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ((adopted 29 May 1993, entry into force 1 May 1995) 1870 UNTS 167). In particular, some States have raised concerns about the uncertainty surrounding the status of many of the children who are born as a result of international surrogacy arrangements, with regard to both parentage and acquisition of nationality, and the impact that this uncertainty may have on child protection (Hague Conference on Private International Bureau, Private International Law Issues Surrounding the Status of Children, including Issues Arising from International Surrogacy Arrangements (March 2011) p. 3).

Although a universally accepted definition of irregular migration does not exist, the term is generally used to identify persons moving outside regular migration channels. The fact that they migrate irregularly does not relieve States from the obligation to protect their rights. Moreover, categories of migrants who may not have any other choice but to use irregular migration channels can also include refugees, victims of trafficking, or unaccompanied migrant children. The fact that they use irregular migration pathways does not imply that States are not, in some circumstances, obliged to provide them with some forms of protection under international law, including access to international protection for asylum seekers fleeing persecution, conflicts or generalized violence. In addition, refugees are protected under international law against being penalized for unauthorized entry or stay if they have travelled from a place where they were at risk (Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, Art. 31(1)).

Whilst normally linked to territory, the jurisdiction of a State is not absolutely tied to it and can extend beyond the States’ territory in some exceptional circumstances. States have asserted jurisdiction extraterritorially on different grounds, e.g. in the context of the prosecution of crimes, the nationality of the perpetrator or the nationality of victims, irrespective of the territory where the crime was committed. States can also exercise diplomatic protection on their nationals abroad to redress a violation of their rights, upon exhaustion by the individual of domestic remedies.

In the context of human rights law, the extraterritorial scope of State jurisdiction has been recognized, for example, in cases in which the State exercises effective control over an area outside the State territory or over individuals (ex multis, Al-Skeini and Others v the United Kingdom App no 55721/07 (ECtHR, 7 July 2011) paras. 130-142; and Öcalan v Turkey App no 46221/99 (ECtHR, 12 May 2005), para. 91).

Examples of jus cogens norms derived from human rights instruments that are relevant to migration include: the prohibition of torture and cruel, inhuman or degrading treatment or punishment, including the prohibition of refoulement to risk thereof, and, according to some authors and judicial bodies, the principle of non-discrimination (see, for example, Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, Inter-American Court of Human Rights Series A No 18 (17 September 2003). See also the case note by S.H. Cleveland in (2005) 99 American Journal of International Law 460).

The concept is used broadly to cover not only automatic acquisition by birth, but also non-automatic acquisition by birth and after birth.

The principle of jus soli can cover both automatic and nonautomatic acquisitions of nationality. Very few countries have adopted a pure jus soli rule. Usually, the acquisition of nationality by birth in the territory is coupled with a number of other conditions, such as a period of residence of the child in the country after birth or of the person’s parents before his or her birth.

Usually accomplished for the purpose of extorting financial gain or a political benefit from the victim of the kidnapping or from a third party. In the migration context, kidnapping is used as a means by smugglers to extort money from migrants or their families. Kidnapping for the purpose of exploitation could also be considered as one of the constitutive element of the crime of trafficking in persons. Kidnapping is normally subject to the national criminal legislation of individual States; there are, however, certain kidnappings that are sanctioned under international law (e.g. in the context of piracy).

In line with the definition of migrant, labour migration is defined as covering both migrants moving within the country and across international borders. This choice is also justified by the significant number of persons moving within the same country for work purposes who sometimes face the same barriers or challenges faced by international migrants, such as discrimination and difficulties in integration. Although such challenges may be greater for migrants moving across borders they are not totally absent also for internal migrants.

The term “labour mobility” has the same meaning as “labour migration” but is more frequently used nowadays to reflect the dynamic and multi-directional nature of modern migration, indicating that those who move for employment purposes may do so more than once, may move across different countries of destination and that their employment abroad may not necessarily result in settlement in another country, keeping their prime place of residence in their country of origin.

Consular officials might issue a laissez-passer to nationals of the country in cases, for instance, of loss or theft of their passport or of evacuation from a war zone or a disaster. The issuance of laissezpasser to nationals of other States might occur, for example, when the nationals of other States benefit from the consular protection and assistance of the issuing State in the absence of diplomatic representation or consular officials, by virtue of bilateral or

multilateral agreements.

The issuance of laissez-passer by the United Nations and the United Nations specialized agencies for their officials is provided respectively in Article VII, Section 24, Convention on the Privileges and Immunities of the United Nations ((adopted 13 February 1946, entered into force 17 September 1946) 1 UNTS 15) and Article VIII, Section 26 of the Convention on the Privileges and Immunities of the Specialized Agencies ((adopted 21 November 1947, entered into force 2 December 1948) 33 UNTS 261).

In the migration context, guardians play a critical role in the protection of unaccompanied or separated migrant children. According to the Committee of the Rights of the Child, “States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or jurisdiction of the State in compliance with the Convention and other international obligations” (Committee on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (1 September 2005) UN Doc. CRC/GC/2005/6, para. 33). Furthermore, with a view to ensuring the respect of the best interests of the child, the guardianship should normally be assigned to an accompanying adult family member or non-primary family caretaker “unless there is an indication that it would not be in the best interests of the child to do so” (ibid., para. 34). The Committee also recognizes that: “In cases where a child is accompanied by a non‐family adult or caretaker, suitability for guardianship must be scrutinized more closely” (ibid., para. 34). The legal guardian has to be present in all planning and decision-making processes relating to the child, including immigration and appeal hearings, care arrangements and all efforts to search for a durable solution.

LGBTI is sometimes used as a shorthand for persons of diverse sex, sexual orientation and gender identity (SSOGI). Because of perceived sexual orientation and/or gender identity, LGBTI persons might face diverse discriminations and violations of human rights in their country of origin or, as migrants, in countries of transit or destination. Sexual orientation and gender identity are also recognized as grounds for persecution (i.e. under membership of a particular social group) for the purpose of granting refugee status (see e.g. United Nations High Commissioner for Refugees, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (23 October 2012) UN Doc. HCR/GIP/12/09).

Unlike the definition of “migrant” of the International Organization for Migration, the definition of long-term migrant used by the United Nations for statistical purposes only covers international migrants.

Loss of nationality may follow an act of the individual (expatriation, deliberate renunciation of nationality), the State (deprivation of nationality) or automatic loss of nationality upon acquisition of another nationality. Although acquisition and loss of nationality are in principle considered as falling within the domain of domestic jurisdiction, the States must, however, comply with norms of international law when regulating questions of nationality, such as Article 15(2) of the Universal Declaration of Human Rights ((adopted 10 December 1948) UNGA Res 217(A)): “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”.

At the national level, States adopt differing criteria for the determination of migrant’s skills. Typically the skills of a migrant are delineated by level of education, occupation, income or a

combination.

At the international level, there are systems for classifying two of the above criteria – education and occupation. Typically occupations classified at Skill Level 1 of the International Standard Classification of Occupations 08 (ISCO-08) Skill Level are considered as low skilled occupations (see ILO’s ISCO-08, 2012, for explanation).

The level of education required for performance in occupations at Skill Level 1 is typically less or equivalent to level 1 (primary level of education) of the International Standard Classification of Education 2011 (Organization of Economic Co-operation and Development, European Union and UNITED Nations Educational, Scientific and Cultural Organization’s Institute for Statistics, ISCED 2011 Operational Manual: Guidelines for Classifying National Education Programmes and Related Qualifications (2015) p. 17).

Other definitions are possible notably on the basis of the nature of the occupation held by the individual. The term should be treated with caution as it does not reflect the alternative ways in which skills can be acquired and the varying levels of skill of migrant workers within this category. Moreover, it is important to distinguish between “low-skilled jobs” and “low-skilled migrant workers” as low-skilled jobs are often performed by skilled migrants which results in their “deskilling”.

Also referred to as a “sham marriage” or “fraudulent marriage”.

Article 16(b) of the Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification ([2003] OJ L 251/12), for example, allows a member State to deny an application for family reunification if shown that the marriage was “contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State”.

“The scale and complexity of such evacuations creates the potential for emergency response capacity in a given jurisdiction or country to be overwhelmed and the necessity for coordination across one or more jurisdictions to effect the evacuation and sheltering of evacuees” (Camp Coordination and Camp Management Cluster, The Mass Evacuation in Natural Disasters (MEND) Guide: Comprehensive Guide for Planning Mass Evacuations in Disasters (2014) pp. 17–18).

Article 12(5) of the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217) stipulates: “The mass expulsion of nonnationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups”. Unlike the way the term is used in the case-law of the European Court of Human Rights, which finds impermissible collective expulsion when a particular case of a member of the group is not individually assessed (Andric v Sweden App no 45917/99 (EctHR, 23 February 1999) para. 1 ) the African Charter prohibits mass expulsions that are motivated by discrimination against a particular group (the grounds of discrimination defined in Article 12(5) are not exhaustive). In its decision on Institute for Human Rights and Development in Africa v Republic of Angola (AHRLR 43 (ACHPR, 2008)), the African Commission on Human and Peoples’ Rights noted “Mass expulsions of any category of persons, whether on the basis of nationality, religion, ethnic, racial or other considerations, constitute special violation of human rights”. The inclusion of “other considerations” broadens the categories for discrimination.

In addition, the deportation of those subject to mass expulsion does not need to take place within a single defined time-frame in order for Article 12(5) to be engaged and can occur over a period of several months (see ibid.).

Medical escorts have the responsibility to provide the best possible care to persons moving from their points of departure to their final destinations under the given circumstances. Medical escorts facilitate the hand-over of beneficiaries with significant health conditions to the receiving health providers and/or families.

International law leaves States latitude to define who they consider a family member of migrants or nationals for the purpose of family reunification, as well as for the purpose of extending rights to which the primary migrant or national is entitled. The Convention on the Protection of the Rights of All Migrant Workers and Members of their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3) sets a minimum standard, leaving States free to define the term more broadly in national legislation (for example, extending some benefits also to non-dependent children).

The definition has been adapted to broadening its scope of application beyond family members of migrant workers to cover the family members of migrants in general. The definition also covers both the national or non-national family members of the citizens of the State concerned. The aim of this broadening of the definition is to cover situations in which the identification of the members of the family is relevant in the context of both internal and international migration, as well as with regard to family reunification of the non-national family members of a citizen of the State concerned.

“Membership of a particular social group” is one of the five grounds enumerated in Article 1A(2) of the 1951 Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137). The Convention does not include any specific list of social groups, nor does the ratifying history suggest that there is a set of identified groups that might qualify under this ground. According to the United Nations High Commissioner for Refugees’ (UNHCR) Guidelines on International Protection No. 2, “the term membership of a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms” (UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A (2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (7 May 2002) UN Doc. HCR/GIP/02/02, para. 3). Applicants with a wellfounded fear of persecution for gender-related reasons have been for instance considered as members of a particular social group, such as women at risk of female genital mutilation in a specific country or persecution on the basis of sexual orientation (see for instance, UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, (7 May 2002) UN Doc. HCR/GIP/02/01, paras. 16 and 28-31).

At the international level, no universally accepted definition for “migrant” exists. The present definition was developed by IOM for its own purposes and it is not meant to imply or create any new legal category.

Two approaches are generally adopted to define the term “migrant”: the inclusivist approach, followed among others by IOM, considers the term “migrant” as an umbrella term covering all forms of movements; the residualist approach excludes from the term “migrant” those who flee wars or persecution (J. Carling, What is the meaning of migrant? www.meaningofmigrants.org (last accessed 8 May 2019)).

For the purpose of collecting data on migration, the United Nations Department of Economic and Social Affairs (UN DESA) defines “international migrant” as “any person who changes his or her country of usual residence” (UN DESA, Recommendations on Statistics of International Migration, Revision 1 (1998) para. 32). The UN DESA definition excludes movements that are due to “recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimages” (ibid.). Specific definitions have also been developed by UN DESA to identify shortterm and long-term migrants (see relevant entries).

“Migration flow data are a dynamic measure counting the number of people crossing international borders, possibly including those who cross several times during a given time interval” (United Nations Department of Economic and Social Affairs, Toolkit on International Migration (2012) p. 3). Other terms are often used in the media to describe a sudden arrival of nonnationals in large numbers, such as influx, wave or stream. Their usage is discouraged because of the negative perception and alarmist attitudes it conveys with regard to migration.

It is important to note that, even when in an irregular situation, migrants are still entitled to the respect, protection and fulfillment of their human rights (see, for example, Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No. 2 on the Rights of Migrant Workers in an Irregular Situation and Members of their Families (28 August 2013) UN Doc. CMW/C/GC/2. Moreover, refugees are to be granted access to international protection and protected against being penalized for unauthorized entry or stay if they have travelled from a place where they were at risk (Convention relating M to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, Art. 31(1)).

The Convention expressly provides protection to migrant workers and their family members not only when the migrants are actually working in the country of destination, but “during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence” (Committee on the Protection of the Rights of all Migrant Workers and Members of Their Families, General Comment No. 1 on Migrant Domestic Workers (23 February 2011) UN Doc. CMW/C/GC/1, 1, quoting the International

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, Art. 1).

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families applies to those that fulfill the definition specified in Article 2(1), from which the following groups are excluded:

“(a) Persons sent or employed by international organizations and agencies or persons sent or employed by a State outside its territory to perform official functions, whose admission and status are regulated by general international law or by specific international agreements or conventions;

(b) Persons sent or employed by a State or on its behalf outside its territory who participate in development programmes and other co-operation programmes, whose admission and status are regulated by agreement with the State of employment and who, in accordance with that agreement, are not considered migrant workers;

(c) Persons taking up residence in a State different from their State of origin as investors;

(d) Refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the State Party concerned;

(e) Students and trainees;

(f) Seafarers and workers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the State of employment” (ibid., Art. 3).

Migrant workers are sometimes referred to as “foreign workers” or “(temporary) contractual workers”.

A similar term is “migrant-sensitive health systems”.

The United Nations High Commissioner for Human Rights (HCHR) in its report to the Human Rights Council underlines that: “the vulnerable situations that migrants face can arise from a range of factors that may intersect or coexist simultaneously, influencing and exacerbating each other and also evolving or changing over time as circumstances change” (HCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations, Report of the United Nations High Commissioner for Human Rights, Addendum (7 February 2018) UN Doc. A/HRC/37/34/ Add.1, para. 12). The HCHR further explains that: “[f]actors that generate vulnerability may cause a migrant to leave their country of origin in the first place, may occur during transit or at destination, regardless of whether the original movement was freely chosen, or may be related to a migrant’s identity or circumstances. Vulnerability in this context should therefore be understood as both situational and personal” (ibid., para. 13). Finally the High Commissioner report also recalls that: “migrants are not inherently vulnerable, nor do they lack resilience and agency. Rather, vulnerability to human rights violations is the result of multiple and intersecting forms of discrimination, inequality and structural and societal dynamics that lead to diminished and unequal levels of power and enjoyment of rights” (ibid.).

As further provided in the IOM Migration Crisis Operational Framework: “The migration crisis approach has been developed to highlight the migration dimensions of crises that are frequently overlooked in crisis response, such as: (a) The patterns of human mobility before, during and after a crisis; (b) The types of consequences that emerge from these patterns, from different perspectives including humanitarian perspectives (e.g. massive humanitarian needs in terms of food security and shelter), migration management perspectives (e.g. needs for large-scale transportation of populations to a safe haven) and peace and development perspectives; (c) The implications of these types of consequences for rapid, inclusive, predictable and accountable responses for the affected population; (d) The needs of vulnerable mobile populations not adequately covered by existing mechanisms, particularly international migrants caught in crises in their destination/transit countries”. (International Organization for Migration, IOM Migration Crisis Operational Framework (15 November 2012) MC/2355, para. 5).

The definition provided draws from a definition developed by the Office of the High Commissioner for Human Rights and the one which is provided in the International Organization for Migration (IOM) Migration Governance Framework. This Framework has been endorsed by IOM Member States on 24 November 2015, by Council Resolution no. 1310. IOM’s view is that good migration governance “adheres to international standards and fulfills migrant’s rights; formulates policy using evidence and a ‘whole-of government’ approach; engages with partners to address migration and related issues” (International Organization for Migration, Migration  Governance Framework (2015) C/106/40, p. 6). The objectives of a sound migration governance should be to seek to “advance the socioeconomic well-being of migrants and society; to provide an effective response to the mobility dimension of crises; and to ensure that migration takes place in a safe orderly and dignified manner” (ibid.). States are the primary actors in migration, mobility and nationality issues and have the responsibility to govern migration at the national and international levels. However, other actors – citizens, migrants, international organizations, the private sector, unions, non-governmental organizations, community organizations, religious organizations and academia – also contribute to migration governance (ibid., p. 4). As such, migration governance has both a national and a global dimension. Global governance has been defined as the “norms, rules, principles and decision-making procedures that regulate the behaviour of States (and other transnational actors)” (A. Betts, Global Migration Governance (Oxford University Press, 2011) p. 4). According to the Global Commission on International Migration, “in the domain of international migration, governance assumes a variety of forms, including the migration policies and programmes of individual countries, inter-State discussions and agreements, multilateral [forums] and consultative processes, the activities of international organizations, as well as relevant laws and norms” (Global Commission on International Migration, Migration in an Interconnected World: New Directions for Action (October 2005) p. 65).

The concept is linked to public administration in the area of migration, which refers to the management and implementation of the whole set of government activities dealing with the implementation of laws, regulations and decisions of the Government and the management related to the provision of public services (United Nations Development Programme, Public Administration Reform Practice Note (2003) p. 2). Given its focus on the organization and operationalization of public policies, migration management is generally understood as a more specific concept than migration governance. Migration management is primarily carried out by States, whereas the term “governance” refers to all the frameworks, institutions and processes, in the development and establishment of which many more actors, than only States, are involved.

In Objective 1 of the Global Compact for Migration, States are encouraged to “[d]evelop and use country-specific migration profiles, which include disaggregated data on all migration relevant aspects in a national context, including those on labour market needs, demand and availability of skills, the economic, environmental and social impacts of migration, remittance transfer costs, health, education, occupation, living and working conditions, wages, and the needs of migrants and receiving communities, in order to develop evidence-based migration policies” (Global Compact for Safe, Orderly and Regular Migration, in General Assembly Resolution 73/195, adopted on 19 December 2018, UN Doc. A/RES/73/195 (19 January 2019) Objective 1, para. 17 (j)).

The term is often used in national legislations, but its meaning varies greatly among States and can sometimes have a negative connotation. The term of “child/children” is thus to be favoured when referring to persons under the age of 18, as most notably done in the Convention on the Rights of the Child ((adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 1989; see also Interagency Working Group on Sexual Exploitation of Children, Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse (2016) p. 8).

Although there is no universally accepted definition of minority in international law, United Nations Office of High Commissioner for Human Rights (OHCHR) stresses that “the existence of a minority is a question of fact and that any definition must include both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as members of a minority)” (OHCHR, Minority Rights: International Standards and Guidance for Implementation (2010) p. 2). Furthermore, according to OHCHR “some minorities have a strong sense of collective identity and recorded history; others retain only a fragmented notion of their common heritage” (ibid.). As underlined by OHCHR, “the requirement to be in a non-dominant position remains important. In most instances a minority group will be a numerical minority, but in others a numerical majority may also find itself in a minority-like or non-dominant position … In some situations, a group which constitutes a majority in a State as a whole may be in a non-dominant position within a particular region of the State in

question” ibid., 2–3).

The United Nations Declaration on the Rights of Person Belonging to National or Ethnic, Religious and Linguistic Minorities applies exclusively to those who belong to the minorities referred to in its title ((18 December 1992) UN Doc. A/RES/47/135). However, OHCHR recognizes the importance of taking into account that “minorities can be discriminated against on other grounds such as gender, disability or sexual orientation”. Moreover, the nationality criterion has often been challenged (OHCHR, Minority Rights, p. 2). This is why the reference to the need for the members of the group to be nationals of the relevant State has been omitted from the definition.

As a result of policies based on multiculturalism, some members of a community remain distinguishable through their language, cultural and social differences, without this being understood as jeopardizing national identity. However, like the assimilationist approach, multiculturalism also presumes that the majority culture remains largely intact, engaging little with the diversity around it. Emphasis on respecting and tolerating difference without reaching across it has been criticized as favouring a dynamic of seclusion that does not foster cohesion. Critics accuse proponents of multiculturalism of focusing on showcasing superficial but palatable markers of diversity like food, attire or music, and of avoiding dealing with cultural practices that clash with liberal values, such as arranged [sic] marriages. Understood in this way, multiculturalism also falls short of coming to terms with current realities of migration. Increasingly plural societies require deeper understandings of the dynamics of diversity. Moreover, negotiations of tensions stemming from cultural divergences must be able to go far beyond the notion of tolerance.

Often used interchangeably with the word “citizen” to denote a person who has the nationality or citizenship of a given State. The International Court of Justice in its landmark Nottebohm case defined nationality as the “legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties” (Nottebohm case (Liechtenstein v. Guatemala) [1955] ICJ Rep, 23). However, it has been argued that it is not necessary to have a genuine link to the country which recognizes a person as its national for the nationality to be effective and that the “genuine link theory” only applies in case of double or multiple nationalities for the purpose of diplomatic protection (R. D. Sloane, “Breaking the ‘Genuine Link’: The Contemporary International Legal Regulation of Nationality’’ (2009) 50 Harvard International Law Journal 1).

The League of Nations Convention on Certain Questions Relating to the Conflict of Nationality Laws stipulates: “it is for each State to determine under its own laws who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality”. (Convention on Certain Questions Relating to the Conflict of Nationality Laws (adopted 12 April 1930, entered into force 1 July 1937) 179 LNTS 89, Art. 1).

The tie of nationality confers rights and imposes duties on both the State and the individual. The State has, for example, the right to protect its nationals abroad (particularly by means of diplomatic and/or consular protection), the duty to accept its nationals onto its territory, and the prohibition to expel them. Nationals of a State have the corresponding rights that are reserved to them to return to and not to be expelled from their country of nationality, among others, as well as a series of duties they need to comply with, including for instance military service or voting in elections.

Although nationality is the term more often used in international law, at the national level, both the terms nationality and citizenship are used, sometimes with different meanings. Some States distinguish between various forms of nationality and citizenship. For example, in the United Kingdom there are six types of nationality or citizenship (Government of the United Kingdom, Types of British Nationality www.gov.uk/types-of-british-nationality (last accessed 5 February 2018)). “British nationals (overseas)” (from Hong Kong, China), differently from “British citizens”, although they hold a British passport, they are subject to immigration controls and do not have the automatic right to live or work in the United Kingdom. Some States align nationality to ethnicity, with citizenship not necessarily conferring nationality. For example in the Russian Federation, nationality reflects a person’s ethnicity, whilst citizenship is the legal term used to identify the bond between the State and individuals belonging to its permanent population. The term citizenship is also the one most commonly used in many Eastern European States (Council of Europe, European Convention on Nationality and Explanatory Report (Council of Europe Publishing 1997) p. 3). Within the EU, as established in Article 9 of the Treaty on European Union (consolidated version [2012] OJ C 326/13), all those who have the

nationality of an EU Member State are citizens of the Union.

Nationality is also one of the grounds for persecution in the definition of a refugee. In this respect, it should be broadly interpreted to not only cover citizenship but also “membership of an ethnic or linguistic group” (United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) HCR/1P/4/ENG/Rev. 3, para. 74).

Some authors argue that the terms “nationality” and “citizenship” emphasize two different aspects of the same notion (P. Weiss, Nationality and Statelessness in International Law (Springer 1979) pp. 4–5). “Nationality” stresses the international aspect, giving rise to the State personal jurisdiction over the individual and to  the State right to activate diplomatic protection vis-à-vis other States (A. Boll, Multiple Nationality in International Law (Brill/ Nijhoff 2007) p. 60). In turn, the term “citizenship” emphasizes the municipal aspect and the set of rights and duties that individuals have by virtue of their full membership within a State (ibid.).

Largely considered as falling under State jurisdiction, there are a very few rules on naturalization in international instruments. Article 34 of the Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) p. 189 UNTS 137) and Article 32 of the Convention relating to the Status of Stateless Persons ((adopted 28 September 1954, entered into force 6 June 1960) p. 360 UNTS 117) require States Parties to facilitate the naturalization of refugees and stateless persons respectively, in particular by expediting naturalization procedures and reducing the charges and costs of such procedures. Access to naturalization should not be discriminatory (Human Rights Committee, Q v Denmark (1 April 2015) UN Doc. CCPR/C/113/D2001/2010).

Finally, with regard to the time required to be naturalized, Article 6(3) of the European Convention on Nationality ((adopted 6 November 1997, entered into force 1 March 2000) ETS No 166) requires States to set a period of lawful and habitual residence in the country not exceeding ten years before the lodging of an application for naturalization.

As a principle of international law, States exercise sovereignty over their territory; accordingly, each State determines who can or cannot enter. However, the right of a State to control admissions onto its territory is limited by international law, including by the right to seek and enjoy asylum (Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217(A), Art. 14); the principle non-refoulement (Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, Art. 33; and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, Art. 3); the right of nationals to return to their own country (International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art. 12(4)), the principle of the best interests of the child (Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, Art. 3(1); and the right to family unity (Convention on the Rights of the Child, Art. 10(1); and International Covenant on Civil and Political Rights, Art. 23(1)).

Non-custodial measures might entail a restriction of movement. From the exceptional character of migrants’ detention follows an obligation for States to ensure that noncustodial measures are available (see, for example, Velez Loor v Panama Inter-American Court of Human Rights Series C No 218 (10 December 2010) para. 171). Non-custodial measures may for instance include community-based or casework-oriented models, bail, bond and surety options, semi-open centres or reporting requirements.

Article 4(2) of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) establishes the following rights as non-derogable: the right to life (Art. 6); the prohibition of torture, cruel, inhuman and degrading treatment (Art. 7); the prohibition of medical or scientific experimentation without consent (Art. 7); the prohibition of slavery, slave trade and servitude (Art. 8); the prohibition of imprisonment because of inability to fulfil contractual obligation (Art. 11); the principle of legality in criminal law (Art. 15); the right to be recognized as a person before the law (Art. 16); freedom of thought, conscience and religion (Art. 18). According to the Human Rights Committee, the fact that some provisions of the International Covenant on Civil and Political Rights have been listed in Article 4 as not being subject to derogation does not mean that other Articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists (Human Rights Committee, General Comment No. 29: States of Emergency (Article 4) (31 August 2001) UN Doc. CCPR/C/21/ Rev.1/Add.11, para. 6). Any derogations should be limited to the extent strictly required by the exigencies of the situation, should not be inconsistent with other State obligations under international law and should never involve discrimination on the ground of race, colour, sex, language, religion or social origin (Art. 4).

A widely accepted principle of international customary law, the principle of non-discrimination is established in the Charter of the United Nations ((adopted 26 June 1945, entered into force 24 October 1945) Arts 13(1)(b), 55(c) and 76(c)). The Charter prohibits discrimination based on race, sex, language, or religion.The principle is also enshrined in most human rights treaties as the reverse side of the principle of equality. Article 1 of the Universal Declaration of Human Rights ((adopted 10 December 1948) UNGA Res 217(A)) stipulates that “[a]ll human beings are born free and equal in dignity and rights,” while Article 2 recognizes that: “Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status...”. The grounds of discrimination vary from one convention to another. The human rights conventions most recently adopted (including the International Convention for the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, Art. 7) also list, among these grounds, “nationality”, which is more specific and relevant to migration than the broader term “national origin” used in other human rights treaties (see, for example, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art. 2(1)).

Within humanitarian settings, non-discrimination is the underlying principle of impartiality, one of the four humanitarian principles. Assistance should be provided on the basis of needs and in proportion to need (see also humanitarian principles).

The principle of non-refoulement is a fundamental principle of international law. It has its origins in international refugee law as found in Article 33 of the Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137), which stipulates: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. The principle was then developed further in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ((adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85), which prohibits States Parties to: “expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The same Article also specifies that: “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”. The principle is also enshrined in the Article 16 of the International Convention for the Protection of All Persons against Enforced Disappearances ((adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3). Other human rights bodies have then interpreted the prohibition of torture and inhuman and degrading treatment as entailing an obligation for States parties to the relevant conventions (notably, at the universal level, the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) not to send persons back to a country where there is a real risk that they are submitted to the proscribed ill-treatments. The reference to “irreparable harm” in the definition has been added to take into consideration the jurisprudence of the Human Rights Committee (Human Rights Committee, General Comment No. 31: The Nature of General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004) UN Doc. CCPR/C/21/Rev.1/Add. 13, para. 12).

Human rights bodies have also clarified that States should avoid any risk of “indirect refoulment” in the cases in which the real risk of ill-treatment would not subsist in the State to which the person is returned in the first place, but in any other country to which the person would risk being subsequently returned by this State (ibid.).

The Convention against Transnational Organized Crime ((adopted 15 November 2000, entered into force 29 September 2003) UN Doc. A/55/383) was supplemented with the Protocol against the Smuggling of Migrants by Land, Sea and Air ((adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 507) and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ((adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319), to deal with these two forms of crimes often committed by criminal groups and that are particularly relevant to migration.

Unlike what is a common misunderstanding, the majority of migrants in irregular situations have entered their countries of destination in a regular manner and may become irregular only subsequently, for instance because they overstay their entry or residence permits or visas (United Nations Office of the High Commissioner for Human Rights, The Economic, Social and Cultural Rights of Migrants in an Irregular situation (2014) p. 4).

“The passive personality principle is generally considered the weakest of all jurisdictional links with the prosecuting State, particularly in the cases where the territorial State is willing to prosecute the accused, and an intervention of the State of nationality of the victim is not justified. However, today the principle is increasingly invoked by States in the context of terrorism” (I. Bantekas, Criminal Jurisdiction of States under International Law in R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2014).

Passports are an accepted international evidence of nationality, although their evidentiary value is prima facie only. The issuance of a passport facilitates the exercise of the human right to leave any country and to return to one’s own country. States that fail to provide their nationals with passports may breach Article 12(2) of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) which states: “Everyone shall be free to leave any country, including his own” (see Human Rights Committee, General Comment No. 27: Freedom of movement (Article 12) (1 November 1999) UN Doc. CCPR/C/21/Rev.1/Add.9). Pursuant to its Article 12(3), freedom of movement can be restricted insofar as the restriction is provided by law, necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and is consistent with the other rights recognized in the covenant.

As a livelihood strategy, pastoralism is shaped by social and ecological factors. The latter often concern uncertainty and variability of precipitation, and low and unpredictable productivity of terrestrial ecosystems (Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts, Adaptation, and Vulnerability, (Fifth Assessment Report, Cambridge University Press 2014) Annex II, 1770.

The term primarily refers to regular migration pathways that can be used for persons compelled to leave their country of origin, who are in vulnerable situations and in need of protection. However, in the Global Compact for Migration, States committed “to adapt options and pathways for regular migration in a manner that … responds to the need of migrants in situations of vulnerability” (Global Compact for Safe, Orderly and Regular Migration, in General Assembly Resolution 73/195, adopted on 19 December 2018, UN Doc. A/RES/73/195 (19 January 2019) Objective 5, para. 21). Such situations can arise not only in countries of origin, but also in countries of transit and destination (ibid., Objective 7, para.

23).

Persons in need of these pathways typically include victims of trafficking, victims of torture and other serious human rights violations, unaccompanied migrant children, persons seriously ill or any other person who may find him or herself in a situation of vulnerability, at any point during the migration cycle.

Pathways for migrants in vulnerable situations may include:

• Humanitarian visas and humanitarian admission programmes;
• Private sponsorships programmes;
• Access to education for children, student visas, or other educational opportunities;
• Temporary work permits or other labour mobility schemes;
• Planned relocation for people affected by slow-onset natural disasters, the adverse effects of climate change and environmental degradation;
• Family reunification schemes; and
• Medical evacuations.

Residence conditions for permanent residents vary from one State to another.

In the refugee context, there is no universally accepted definition of “persecution”. The term was deliberately not defined in the Geneva Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137). The first prong of the above definition is inferred from Article 33 of the Refugee Convention. The second prong builds on States’ jurisprudence which commonly recognizes violations of human rights to constitute persecution when reaching a certain threshold of seriousness. According to the Convention’s definition of a refugee, persecution must be based on one of the following five grounds: race, religion, nationality, membership of a particular social group or political opinion (United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (December 2011) UN Doc. HCR/1P/4/enG/Rev. 3, para. 51).

The term is generally used to identify relocations that are carried out within national borders under the authority of the State and denotes a long process that lasts until “relocated persons are incorporated into all aspects of life in the new setting and no longer have needs or vulnerabilities stemming from the Planned Relocation” (The Brookings Institution, Georgetown University Institute for the Study of International Migration and United Nations High Commissioner for Refugees, Guidance on Protecting People From Disasters and Environmental Change Through Planned Relocation, (Brookings, 2015), p. 6).



The aim of planned relocation should be to protect people from risks and impacts related to disasters and environmental change, including the effects of climate change, and should only be carried out at the individual, household, and/or community levels as a last resort (ibid., 5).

In some exceptional cases, groups of persons may also be relocated to another State. This is typically the case in disappearing Island States.

The United Nations High Commissioner for Refugees (UNHCR) clarifies that: “[h]olding political opinions different from those of the government is not in itself a ground for claiming refugee status and an applicant must show that he has a fear of persecution for holding such opinions….” (UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) UN Doc. HCR/1P/4/enG/Rev. 3, para. 80). In addition, it may not always be possible to establish a causal link between the opinions expressed and the persecution. Such measures are only rarely explicitly based on the opinion expressed. Very often the persecution takes the form of a sanction for alleged criminal acts committed by the individual against the ruling power. In such circumstances, “it will, therefore, be necessary to establish the applicant’s political opinion, which is at the root of his behaviour, and the fact that it has led or may lead to the persecution that he claims to fear” (ibid., para. 81).

In recent years, pre-departure orientation programmes have expanded from a focus on cultural orientation to include language training, pre-employment training, intercultural competency training, counselling and more. Courses often are tailored to specific demographics and populations.

The aim is to ensure that the individual is fit for travel and does not pose any health threat to other passengers or to persons encountered during transit or immediately upon arrival in the

country of resettlement.

In the migration context, an application for immigrant status may undergo preliminary review to determine whether there is a prima facie case showing of all the basic requirements (often as a condition for receiving financial assistance or a work permit).

A common State practice is that the review of persons seeking entry into a country at border crossing points is divided into “primary” and “secondary” inspection. The vast majority of applicants for admission undergo a short screening at primary inspection points prior to admission. Any applicant about whom the migration official has doubts or who is registered on the State’s watch-list system is referred to secondary inspection, where the applicant undergoes an interview or additional investigation.

A common State practice is that dependents (usually including at a minimum the spouse and any minor children) are considered derivative applicants and receive the same status afforded to the principal applicant.

The protection of migrants refers to the “obligation to respect, protect and fulfil the rights of individuals and obligation by States to do so in respect of all individuals on their territory or under their jurisdiction, regardless of their nationality, statelessness or migration status and without discrimination, in order to preserve in particular their safety, physical integrity and dignity. Protection is about securing rights” (International Organization for Migration, IOM Policy on Protection (7 September 2015)C/106/INF/9, 4, para. 12; see also, Inter-Agency Standing Committee, IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (January 2011) pp. 5 and 6).

Protection mainstreaming addresses “how” the crisis and post-crisis response is performed and is the responsibility of all actors involved in humanitarian responses.

As explained by the Humanitarian Policy Group, “This definition includes [individuals] forced to leave their homes to avoid armed conflict, violence, violations of human rights or natural or human-made disasters. It also includes those living in camps or dispersed among host populations”. (ibid., 11). There seems to be no consensus as to when displacement becomes protracted, and so no standard definition of “protracted displacement” exists. Some organizations and authors put the emphasis on the duration of the displacement (12 months, 3 years, 5 years, etc.) as a benchmark. Others regard displacement as protracted as long as people are unable to return to their place of origin, thus using location as the main criteria. Still others identify a continued need for humanitarian action as the key element of protractedness. The above definition covers all situations in which the process of finding solutions has stalled (United Nations Office for the Coordination of Humanitarian Affairs, Breaking the Impasse: Ending Protracted Internal Displacement Through Collective Outcomes (March 2017); see also The Brookings-Bern Project on Internal Displacement and the United Nations High Commissioner for Refugees, Expert Seminar on Protracted IDP Situations (2007) p. 2). According to UNHCR a major protracted refugee situation is one where more than 25,000 refugees have been in exile for more than five years (United Nations High Commissioner for Refugees, Executive Committee, Protracted Refugee Situations (10 June 2004) EC/54/ SC/CRP.14, para. 5). OCHA defines protracted internal displacement by reference to “IDPs who are prevented from taking or are unable to take steps for significant periods of time to progressively reduce their vulnerability, impoverishment and marginalization and find a durable solution” (ibid., 4).

“Migration is a social determinant of health that can impact the health and well-being of individuals and communities. Migration can improve the health status of migrants and their families by escaping from persecution and violence, by improving socioeconomic status, by offering better education opportunities, and by increasing purchasing power for ‘left behind’ family members thanks to remittances. However, the migration process can also expose migrants to health risks, such as perilous journeys, psychosocial stressors and abuses, nutritional deficiencies and changes in life-style, exposure to infectious diseases, limited access to prevention and quality health care, or interrupted care” (International Organization for Migration, Migration Health Division, Migration Health in the Sustainable Development Goals (undated) p. 1; see also World Health Organization, Refugee and Migrant Health (webpage undated), www.who.int/migrants/en/ (last accessed 3 January 2021).

The push-pull model refers to a framework within which the decision to migrate is made. Within this framework, a migrant makes his or her mobility decisions according to “plus” and “minus” factors in areas of origin and destination, intervening obstacles, and personal factors (Lee, 1966, in S. Castles, H. de Haas and M.J. Miller, The Age of Migration: International Population Movements in the Modern World (5th edition, Palgrave-Macmillan, 2014)). Whilst it provides a useful categorization of reasons for migrating, the “push-pull” model has subsequently been misrepresented in a manner that fails to acknowledge the complexity and interplay of the factors that lead to the decision to migrate.

Quarantine is one of the oldest measures, dating back to the 14th century, to stem disease spread by restricting the movement of people. A related, but not entirely similar term is “isolation” which separates sick people with a contagious disease from people who are not sick (World Health Organization, International Health Regulations (2005) (3rd edition, 2016) p. 8).

The Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance adopts a similar definition but makes specific reference to the fact that this type of discrimination can occur both in public and in private life ((adopted 5 June 2013, entered into force 11 November 2017) A-68). Article 1 states that: “Racial discrimination shall mean any distinction, exclusion, restriction, or preference, in any area of public or private life, the purpose or effect of which is to nullify or curtail the equal recognition, enjoyment, or exercise of one or more human rights and fundamental freedoms enshrined in the international instruments applicable to the States Parties”. (ibid.)

Racism leads to racial inequalities and discrimination contrary to the basic principles of international law (International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195).

Instruments of ratification usually take effect either when exchanged between the contracting States, or when deposited with a depositary or notified to the other contracting States or to the depositary of the treaty (Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 16). In a domestic context, ratification is the process whereby a State puts itself in a position to indicate its acceptance of the obligations contained in a treaty, which based on some constitutions may involve all the procedures which have to be followed before the government can accept a treaty as binding (J.P. Grant and C. Barker (eds), Parry and Grant Encyclopedic Dictionary of International Law (3rd edition, Oxford University Press, 2009)).

Also referred to as re-migration.

The name and functions of such facilities vary among States and include: accommodation centres, identification centres, processing centres, hotspots, and holding or detention centres. Some facilities may accommodate a particular group of non-nationals only, for example those seeking international protection, whilst others will accommodate additional groups. Facilities may be open, semi-open or closed centres, publicly or privately run. In the use of any closed reception facilities, irrespective of their appellation, States have to respect the individuals’ right to liberty and security, as well as all human rights guarantees relating to detention.

The term refoulement is also commonly used as a shorthand for any returns or non-admissions which are in violation of the principle of non-refoulement.

Under international refugee law, recognition as a refugee is declaratory and not constitutive. “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee” (United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) HCR/1P/4/enG/Rev. 3, para. 9). The second part of the definition also covers stateless persons who are outside their country of habitual residence.

Instruments adopted at the regional level complement the Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137) and build upon its definition, by including specific reference to a number of objective circumstances which may compel a person to leave their country. Article 1(2) of the Convention Governing Specific Aspects of Refugee Problems in Africa ((adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45) includes in the definition of refugees also any person compelled to leave his or her country “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country or origin or nationality”. Similarly, the 1984 Cartagena Declaration states that refugees also include persons who flee their country “because their lives, security or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order”.

“While refugee status must normally be determined on an individual basis, situations have also arisen in which entire groups have been displaced under circumstances indicating that members of the group could be considered individually as refugees. In such situations the need to provide assistance is often extremely urgent and it may not be possible for purely practical reasons to carry out an individual determination of refugee status for each member of the group. Recourse has therefore been had to so called ‘group determination’ of refugee status, whereby each member of the group is regarded prima facie (i.e. in the absence of evidence to the contrary) as a refugee” (United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) HCR/1P/4/ENG/Rev. 3, para. 44).

Determination of refugee status is a process which takes place in two stages. Firstly, it is necessary to ascertain the relevant facts of the case. Secondly, the definitions in the 1951 Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137) and the 1967 Protocol have to be applied to the facts thus ascertained (United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) HCR/1P/4/ENG/ Rev. 3, para. 29). Under international refugee law, recognition as a refugee is declaratory and not constitutive. “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee” (ibid., para. 28).

“A person may become a refugee ‘sur place’ as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities” (United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) HCR/1P/4/ENG/Rev. 3, para. 96).

Registration cards are generally issued to persons having their usual residence in a given place, irrespective of the person’s nationality or formal residence status. Examples of registration cards include social security cards, student cards, elderly cards, fiscal registration cards, etc. Such cards are used by certain local authorities to ensure access to services to all persons under their jurisdiction, including irregular migrants. The Global Compact for Migration invites States to “Build upon existing practices at the local level that facilitate participation in community life, such as interaction with authorities and access to relevant services, through the issuance of registration cards to all persons living in a municipality, including migrants, that contain basic personal information, while not constituting entitlements to citizenship or residency” (Global Compact for Safe, Orderly and Regular Migration, in General Assembly Resolution 73/195, adopted on 19 December 2018, UN Doc. A/RES/73/195 (19 January 2019) Objective 4, para. 20 (g)).

The final draft of the Global Compact for Migration refers to regular migration pathways in Objective 5, para. 21. In this Objective, States have committed to: “adapt options and pathways for regular migration in a manner that facilitates labour mobility and decent work reflecting demographic and labour market realities, optimizes education opportunities, upholds the right to family life, and responds to the needs of migrants in a situation of vulnerability, with a view to expanding and diversifying availability of pathways for safe, orderly and regular migration” (Global Compact for Safe, Orderly and Regular Migration, in General Assembly Resolution 73/195, adopted on 19 December 2018, UN Doc. A/RES/73/195 (19 January 2019) Objective 5, para. 21).

Typical practices include the granting of an amnesty (also known as “legalization”) to non-nationals who have resided in the country in an irregular situation for a given length of time and are not otherwise found inadmissible. In this regard, the Global Compact for Migration calls upon States to “build on existing practices to facilitate access for migrants in an irregular status to an individual assessment that may lead to regular status, on a case by case basis and with clear and transparent criteria, especially in cases where children, youth and families are involved, as an option to reduce vulnerabilities…” (Global Compact for Safe, Orderly and Regular Migration, in General Assembly Resolution 73/195, adopted on 19 December 2018, UN Doc. A/RES/73/195 (19 January 2019) Objective 7, para. 23 (i)).

Reinsertion assistance can include “transitional safety allowances, food, clothes, shelter, medical services, short-term education, training, employment and tools” (United Nations General Assembly, Administrative and Budgetary Aspects of the Financing of the United Nations Peacekeeping Operations (Note by the Secretary-General, 2005) UN Doc. A/C.5/59/31, p. 1). While reintegration should be understood as a long-term, continuous social and economic process, reinsertion incorporates the provision of short-term material and/or financial assistance to meet immediate needs typically at the outset of a reintegration

process (ibid.).

The various components of reintegration can be described as follows.

Social reintegration implies the access by a returning migrant to public services and infrastructures in his or her country of origin, including access to health, education, housing, justice and social protection schemes.

Psychosocial reintegration is the reinsertion of a returning migrant into personal support networks (friends, relatives, neighbours) and civil society structures (associations, self-help groups and other organizations). This also includes the re-engagement with the values, mores, way of living, language, moral principles, ideology, and traditions of the country of origin’s society.

Economic reintegration is the process by which a returning migrant re-enters the economic life of his or her country of origin and is able sustain a livelihood.

This includes both the development of a personal network (friends, relatives, neighbours) and the development of civil society structures (associations, self-help groups and other organizations).

Although the Guiding Principles on Internal Displacement use the term resettlement (Guiding Principles on Internal Displacement (11 February 1998) UN Doc. E/CN.4/1998/53/Add.2, Section V), the term relocation is currently more commonly used to refer to one of the three durable solution to internal displacement.

Remedies aim at restoring justice, including by providing reparation (United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (21 March 2006) UN Doc. A/RES/60/147, para. 18).

A fundamental principle of the human rights architecture is that everyone should have a right to an effective remedy in the event his or her rights are violated. Migrants, and notably those who are in an irregular situation, are often prevented from accessing effective remedies by various legal and situational barriers.

Remedies are also a critical element of the international legal response to trafficking in persons (Office of the High Commissioner for Human Rigths, Draft Basic Principles on the Rights to an Effective Remedy for Victims of Trafficking in Persons (2014)).

In this definition, remittances are independent of the sender’s source of income (e.g. salary, profits from business, savings, etc.). The International Monetary Fund (IMF) and the World Bank, collect data on remittances within the balance of payment framework. For that purpose, data on remittances includes two items: “compensation of employees” and “personal transfers” (IMF, International Transaction in Remittances, 2009, para. 3.14; World Bank, How do you define remittances?, https://datahelpdesk.worldbank.org/knowledgebase/articles/114950- how-do-you-define-remittances (last accessed 28 February 2020)).

A distinction should be made between formal remittances as captured in the above definition and informal remittances. Informal remittances are remittances in cash or in kind that are transferred outside the formal financial system. Statistics on remittances normally only capture formal remittance flows.

Increasingly, the terms “social remittances” or “social capital transfer” are used in the context of transfers of non-monetary value as a result of migration, such as transfer of knowledge, knowhow, networking and skills.

The removal of non-nationals is an expression of a State’s sovereignty to determine who enters and remains on its territory. A number of principles of international law, and most notably the principle of non-refoulement, limit a State’s sovereignty in this regard.

International law also set standards for the way in which removals are carried out. Removals should preserve the dignity of the individual and the use of force should be exceptional, limited to what is reasonably necessary, should never endanger the life or physical integrity of the individual. In particular, any techniques that may have the effect of obstructing partially or wholly the airways of the person should be avoided and any provision of medication to persons being deported or subject to a deportation order must only be done on the basis of a medical decision and in accordance with medical ethics (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Deportation of Foreign Nationals by Air, Extract from the 13th General Report of the CPT (20013) CPT/Inf(2003) 35, paras. 36 and 40 in CPT, CPT Standards (Rev. 2015) CPT/Inf/E (2002) 1, pp. 79–80).

In some States, a removal order may be accompanied by a voluntary period for the individual’s departure from the State territory and under certain conditions (e.g. absence of a risk of absconding).

The voluntary renunciation of nationality by an individual must also be followed by an official act of acceptance on the part of the State. International law prohibits States from denying the right of a person to change nationality (Art. 15 of the Universal declaration of Human Rights (adopted 10 December 1948) UNGA Res 217(A); and Art. 20(3) of the American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123) and it restricts the possibility to renounce one’s nationality to cases where the person concerned would become stateless (Art. 7(1) of the Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175; Art. 8(1) European Convention on Nationality (adopted 6 November 1997, entered into force 1 March 2000) ETS No 166).

Reparation can include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (21 March 2006) UN Doc. A/ RES/60/147, para. 18). “Reparation should be proportional to the gravity of the violations and the harm suffered” (ibid., para. 15).

The right to repatriation is found in several legal instruments such as the Geneva Conventions (i.e. Geneva Convention III relative to the Treatment of Prisoners of War 8 adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; Geneva Convention IV relative to the Protection of Civilian Persons in Time of War ((adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287); and the Regulations Respecting the Laws and Customs of War on Land, Annexed to the Hague Convention IV (adopted 18 October 1907, entered into force 26 January 1910) as well as customary international law. The right and method of repatriation are specifically set out with regard to non-nationals (who are not taking part in the conflict) in Articles 35 and 36 of

Geneva Convention IV.

In international humanitarian law, repatriation also entails the obligation of the detaining power to release eligible persons (soldiers and civilians) and the duty of the country of origin to receive its own nationals at the end of hostilities. The term repatriation is commonly used in the context of international humanitarian law. This is why the definition focuses primarily on categories that are relevant to this area of international law. However, a more general right to return to one’s own country is also stipulated in international human rights law and particularly in Articles 12 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art. 12).

Within refugee law, Article 5 of the Convention Governing the Specific Aspects of Refugee Problems in Africa ((adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45) stipulates that repatriation should always be voluntary and no refugee shall be repatriated against his will. It also imposes an obligation upon the country of asylum to “make adequate arrangements for the safe return of refugees who request repatriation” and on the country of origin to “facilitate their resettlement and grant them the full rights and privileges of nationals of the country, and subject them to the same obligations”.

The term is also frequently used to refer to the repatriation of diplomatic envoys and international officials in time of international crisis as well as of nationals caught in a crisis or in a disaster while abroad (see Migrants in Countries in Crisis Initiative, Guidelines to Protect Migrants in Countries Experiencing Conflict or Natural Disaster (2016)).

The duty to rescue those in distress at sea is firmly established by both treaty and customary international law. Among others, the United Nations Convention on the Law of the Sea stipulates that: “Every State shall require the master of a ship flying its flag, in so far as he 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…” (United Nations Convention on the Law of the Sea (adopted 10 December 1982) 1833 UNTS 3, Art. 98(1)). Coastal States are also required to promote the establishment, operation and maintenance of an adequate and effective search and rescue service and to cooperate with neighbouring States for this purpose (ibid., Art. 98(2)).

The International Convention on Maritime Search and Rescue also specifies that “Parties shall ensure that assistance be provided to any person in distress at sea. They [the State Parties] shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found” (International Convention on Maritime Search and Rescue (SAR) (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 118, Annex 2.1.10).

Resettled refugees will usually be granted asylum or some other form of long-term resident rights and, in many cases, will have the opportunity to be naturalized.

Unlike residence, domicile normally requires “an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile. Sometimes, though, the two terms are used synonymously” (B.A. Garner (ed), Black’s Law Dictionary (10th edition, Westlaw, 2014).

Restriction of liberty is not synonymous to deprivation of liberty. The European Court of Human Rights has affirmed that: “the difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance” (Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980) para. 92). As a consequence, “in order to determine whether someone has been ‘deprived of his liberty’ … the starting-point must be his concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question” (Amuur v France App no 19776/92 (ECtHR, 25 June 1996) para. 42). For instance, restrictions of movement may be placed on a migrant within an international zone in an airport; however, if it is prolonged then a restriction of movement may turn into a deprivation of liberty (ibid., para. 43).

A number of subcategories of return describe the various ways in which the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as subcategories which describe who is participating in the return, e.g. repatriation (for migrants caught in a crisis).

For statistical purposes, the United Nations Department of Economic and Social Affairs (UN DESA) defines returning migrants as “persons returning to their country of citizenship after having been international migrants (whether short term or long term) in another country and who are intending to stay in the country for at least one year” (UN DESA, Recommendation on Statistics of International Migration, Revision 1 (1998) p. 94).

The right to leave is also stipulated in other legal instruments such as Article 12(2) of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171) which states: “Everyone shall be free to leave any country, including his own.” This right applies to all persons without distinction. There is, however, no corollary right to enter the territory of another country under international law.

The right to return is also stipulated in Article 12(4) of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171): “No one shall be arbitrarily deprived of the right to enter his own country”. The right of a person to enter his or her own country recognizes the special relation of a person to that country. The wording of Article 12(4) does not distinguish between nationals and non-nationals. According to the Human Rights Committee: “The language of Art. 12, paragraph 4 … permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence” (Human Rights Committee, General Comment No. 27: Freedom of Movement (Article 12) (1 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9, para. 20). The Committee also specified that the right also applies to “nationals of a country who have there been stripped of their nationality in violation of international law” and to “individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them” (ibid.).

The Guiding Principles on Internal Displacement also recognize a duty for the competent authorities to “establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity” (Guiding Principles on Internal Displacement, Principle 28, annexed to United Nations Commission on Human Rights, Report of the Representative of the Secretary-General, Mr Francis M. Deng, Submitted Pursuant to Commission Resolution 1997/39, Addendum (11 February 1998) UN Doc E/CN.4/1998/53/Add.2).

As stipulated in Article 14 of the Universal Declaration of Human Rights ((adopted 10 December 1948) UNGA Res 217(A)): “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. The use of the term “enjoy” in the Declaration has been interpreted as a recognition of a right of States to grant asylum and to allow asylum seekers to enter their territory, notwithstanding the fact that they are protected against refoulement. In some cases, protection from refoulement requires the admission of the person. The only binding document recognizing a right to obtain asylum is the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217, Art. 12(3)).

The criteria to determine whether a person is likely to abscond should be defined by law and must not be based upon arbitrary or discriminatory grounds. Those criteria must be sufficiently specific and clear, and must be assessed in the individual case. Finally, the person concerned should have access to court to challenge any restriction to his or her liberty based on the risk of absconding (see, inter alia, C. v Australia (13 November 2002)  UN Doc CCPR/C/76/D/900/1999, (2002) paras 8.2 and 8.3).

The concept of “safe country of origin” has been used by States to accelerate the processing of asylum claims. The concept leads to a presumption, difficult to rebut, that an application for international protection by a national of one of those countries is unfounded.

To ensure compliance with the letter and spirit of the 1951 Convention, when they apply the safe third country concept, States should ensure that “each application is examined fully on its merits in accordance with procedural safeguards; each applicant has an effective opportunity to rebut the presumption of safety of the country of origin in his/her individual circumstances; the burden of proof on the applicant is not increased, and applicants have the right to an effective remedy against a negative decision” (United Nations High Commissioner for Refugees, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Key Findings and Recommendations (March 2010) p. 65).

To ensure that the application of the concept of safe third country is in line with the letter and the spirit of the 1951 Convention, States should have regard to the fact that asylum should not be refused solely on the ground that it could be sought from another State (United Nations High Commissioner for Refugees, Executive Committee, Refugees without an Asylum Country, Conclusion No. 15 (16 October 1979), para. (h)(iv)). Furthermore, for a decision to transfer an asylum seeker to a third country considered safe to be consistent with international refugee law and human rights law a number of safeguards need to be met. Application of the safe third country concept requires assessment, prior to transfer, of whether the State in question will (re)admit the person concerned; grant the person access to a fair and efficient procedure for determination of his or her international protection needs; permit the person to remain pending status determination; and accord the person standards of treatment commensurate with the 1951 Convention and international human rights standards, including protection from refoulement (United Nations High Commissioner for Refugees, Legal Considerations on the Return of Asylum seekers and Refugees from Greece to Turkey as Part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the Safe Third Country and First Country of Asylum Concept (23 March 2016) p. 2). Where the person is entitled to international protection, a right of legal stay and a timely durable solution are also required (ibid.). When a State is considering applying a “safe third country” concept, asylum seekers must have an opportunity within the procedure to be heard, and to rebut any presumption that they will be protected and afforded the relevant standards of treatment in another State, on the basis of their particular circumstances (ibid.).

According to Article 38(1) of the Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection ([2013] OJ L 180/60), EU Member States may apply the safe third country concept only where the competent authorities are satisfied that the following conditions will be fulfilled in respect the treatment of a person seeking international protection: “1. life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; 2. there is no risk of serious harm as defined in Directive 2011/95/EU; 3. the principle of non-refoulement in accordance with the Geneva Convention is respected; 4. the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and 5. the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention”.

The term is the one used in the title of the Global Compact for Migration (Global Compact for Safe, Orderly and Regular Migration, in General Assembly Resolution 73/195, adopted on 19 December 2018, UN Doc. A/RES/73/195 (19 January 2019)). Some variations are used in other documents. Target 10.7 of the 2030 Agenda for Sustainable Development requires States to: “Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies” (United Nations General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development (21 October 2015) A/RES/70/1). The IOM’s Migration and Governance Framework (MiGOF) also refers to “orderly, safe, regular and responsible migration” in its title, whereas one of the framework’s objectives is about ensuring that “migration takes place in a safe, orderly and dignified manner” (International Organization for Migration, Migration Governance Framework (2015) C/106/40, Objective 3).

According to the Principles and Guidelines on Human Rights at International Borders issued by the United Nations Office of the High Commissioner for Human Rights (OHCHR): “Any screening process should ensure that each individual’s situation and reasons for entry are determined and that migrants who may be at particular risk at international borders are identified and appropriately referred” (OHCHR, Principles and Guidelines on Human Rights at International Borders (2014) p. 27). Screening is also a process used in disarmament, demobilization and reintegration (DDR), for the purposes of examining, investigating and establishing the nature of the relationship of an individual to an armed group. In contexts where sanctioned violent extremist groups are involved, screening is the first step for determining the legal status based on culpability and security risks. This methodical assessment examines individual backgrounds and their role and involvement in a violent extremist group to inform subsequent actions with respect to their treatment and handling. Screening has legal, operational and risk dimensions. Screening is distinct from profiling, registering and vetting.

The term is also used to identify fishermen (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, Art. 2(2)(c)).

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, Art. 2(2)(b).

In the context of refugee and asylum seeker movements, the term secondary movements is used to characterize the movements of those who seek and/or receive asylum in a country different from the country where they first arrived (see, for example, S.H. Legomsky, Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection (United Nations High Commissioner of Refugees, Legal and Protection Refugee Series, 2003)).

The prohibition of holding someone in servitude is stipulated in international human rights law such as Article 4 of the Universal Declaration of Human Rights ((adopted 10 December 1948) UNGA Res 217(A)); Article 8 of the International Covenant on Civil and Political Rights (ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171); Article 11 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3); and Article 27 of the Convention on the Rights of Persons with Disabilities ((adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3). The Travaux Préparatoires of Article 8 ICCPR on slavery and servitude clarify that, while slavery was narrowly defined, servitude was considered to be applicable to all conceivable forms of dominance and degradation of human beings by human beings.

Servitude is listed as one of the possible forms of exploitation under the definition of trafficking in persons in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime ((adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(a)).

Although the Guiding Principles on Internal Displacement use the term resettlement (Guiding Principles on Internal Displacement (11 February 1998) UN Doc E/CN.4/1998/53/Add.2, Section V), the term settlement elsewhere is currently more commonly used to refer to one of the three durable solution to internal displacement. The term “relocation” is also sometimes used as an alternative.

Sexual exploitation is one of the forms of exploitation listed in the definition of trafficking in persons in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime ((adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(a)).

For the purpose of international migration statistics, the country of usual residence of short-term migrants is considered to be the country of destination during the period they spend in it (United Nations Department of Economic and Social Affairs, Recommendations on Statistics of International Migration, Revision 1 (1998) p. 94).

Whilst what may constitute a skilled migrant varies between States often determined by a range of factors such as labour market needs, skilled migrants are usually granted preferential treatment regarding admission to a country (and are therefore subject to fewer restrictions regarding length of stay, change of employment and family reunification).

Slavery is identified by an element of ownership or control over another’s life, coercion and the restriction of movement and by the fact that someone is not free to leave or to change employer (e.g. traditional chattel slavery, bonded labour, serfdom, forced labour and slavery for ritual or religious purposes). Slavery is explicitly recognized as one of the forms of exploitation in the definition of trafficking in persons (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime ((adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(a)).

IOM uses the term “irregular entry” as opposed to “illegal entry” as found in Article 3 of the Protocol against Smuggling of Migrants by Land, Sea and Air. According to Article 5 of the Protocol, smuggled migrants shall not become liable to criminal prosecution for the fact of having been the object of smuggling.

In the above definition, the term illegal entry used in the Protocol’s definition has been replaced by the term irregular entry.

The conditions in which migrants travel, live and work often carry exceptional risks to their physical and mental well-being, and the migration process can therefore be regarded as a social determinant of health for migrants International Organization for Migration, Health in the Post-2015 Development Agenda: The Importance of Migrants’ Health for Sustainable and Equitable Development (Migration & Health Position Paper Series, 2012).

Among the groups who may be excluded based on their identity, the World Bank notes that with the increase in the movements of people within countries and across borders: “the identity of migrant groups and individuals has come under special scrutiny, especially in developed countries, which are grappling with ways of integrating nonnatives.” (World Bank, Inclusion Matters: The Foundation for Shared Prosperity (2013) p. 6. Three interrelated domains constitute both barriers and opportunities for social inclusion: 1. (land, housing, labour and credit) markets, 2. services (e.g. health, education, social protection, transport, water and sanitation, energy or information), and 3. physical spaces which have a social, political and cultural character. (ibid., pp. 8–13).

This broad definition developed by the United Nations Children’s Fund (UNICEF) encompasses four main components: “(1) social transfers, (2) programmes to ensure access to services, (3) social support and care services, and (4) legislation and policy reform to remove inequalities in access to services of livelihoods/ economic opportunities” ( United Nations Children’s Fund, Social Protection Strategic Framework, Integrated Social Protection Systems: Enhancing Equity for Children (2012) pp. 2 and 6). Noting that the meaning of the term varies among institutions, the International Labour Organization (ILO) understands the “social protection” as an alternative expression to “social security” (ILO, World Social Protection Report 2014/15 (2014) p. 162).

In the context of migration more specifically, ILO notes that: “Although ‘everyone as a member of society has the right to social security’ [Universal Declaration of Human Rights (1948), Art. 22], in reality, compared to nationals working their entire lives in one country, migrants face huge challenges in exercising their rights to social security. They can be denied access or have limited effective access to social security coverage in their host country because of their status, nationality, or the insufficient duration of their periods of employment and residence. Their access may further be curtailed due to a lack of knowledge about and awareness of their rights and obligations. At the same time, they can lose their entitlements to social security benefits in their country of origin because of their temporary absence” (ILO, Labour Migration Highlights No. 4: Social Protection for Migrant Workers, (2015) p. 1). A number of ILO Conventions and Recommendations make provisions for the social security rights of migrant workers and their families, including ILO social security instruments (e.g. the ILO Convention (No. 102) concerning Minimum Standards of Social Security, (adopted 28 June 1952, entered into force 27 April 1955) 210 UNTS 131) or the ILO Recommendation concerning National Floors of Social Protection (RO 202) 30 May 2012) and ILO migrantspecific instruments (e.g. ILO Convention (No. 97) concerning Migration for Employment (Revised 1949) ((adopted 1 July 1949, entered into force 22 January 1952) 120 UNTS 71), ILO Convention (No. 143) concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers ((adopted 24 June 1975, entered into force 9 December 1978) 1120 UNTS 323) and the ILO Multilateral Framework on Labour Migration (19 April 2006)).

The right to social security is also to be secured, albeit not unconditionally, for migrant workers in Article 27 of the Convention on the Rights of all Migrant Workers and Members of Their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3) (See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No. 2 on the Rights of Migrant Workers in an Irregular Situation and Members of Their Families (18 August 2013) UN Doc. CMW/C/GC/2, paras. 67–71) and for refugees in Article 24 of the convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137).

Although there is no commonly recognized definition, soft law is normally used to refer to international instruments developed by States and/or international organizations and which, although not legally binding, set political commitments. Examples of soft law instruments include declarations, recommendations and guidelines.

Compared to treaties, soft law instruments are usually perceived as easier and quicker to negotiate. Moreover, these norms may subsequently evolve into binding law, be it as evidence of new norms of customary international law or through later codification

into a binding treaty.

Soft law instruments have been developed in certain areas of international law, such as international economic law, international environmental law, as well as international migration law. Soft law instruments relevant to migration include, for instance: the Guiding Principles on Internal Displacement, annexed to United Nations Commission on Human Rights, Report of the Representative of the Secretary-General, Mr Francis M. Deng, Submitted Pursuant to Commission Resolution 1997/39, Addendum (11 February 1998) UN Doc. E/CN.4/1998/53/Add.2; the ILO Recommendation concerning Migrant Workers (RO151 (24 June 1975)); the ILO Recommendation concerning Migration for Employment (Revised) (RO86 (1 July 1949)); and, among the ones adopted more recently, Global Compact for Safe, Orderly and Regular Migration, in General Assembly Resolution 73/195 UN Doc. A/RES/73/195 (19 January 2019), and the Nansen Agenda for the protection of crossborder displaced persons in the context of disasters and climate change (2015); and the Guidelines to Protect Migrants in Countries Experiencing Conflict or Natural Disaster (2016).

In the context of migration, the prerogative of a State to determine the admission in and exclusion of non-nationals from its territory, which is based on its sovereignty, is subject to limitations imposed by international legal obligations derived from customary and treaty law such as the principle of non-refoulement, human rights, as well as some provisions contained in bilateral or regional agreements (e.g. free movement agreements).

Some States require sponsorship or proof of adequate income as a condition of entry for certain categories of migrants as well as visitors. In some States, a system of sponsorship is used to manage temporary and labour migration. Under such systems, in order to obtain work visas and residence permits, foreign workers must be sponsored by a national of the country or a local company. Such a condition makes an individual’s rights to work and stay in the country dependent on the employer or sponsor and may increase the risk of trafficking and/or exploitation.

Stabilization programmes comprise locally driven, development-principled programming in crisis or fragile contexts, which aim to mitigate, or prevent the recurrence of, displacement and irregular migration drivers related to state fragility, conflict and violence. Community stabilization projects use multiple sectors to achieve broader stability goals, and stress flexibility and adaptability to evolving needs, with a focus on essential services, community infrastructure, local governance, economic recovery, participation, social cohesion and peacebuilding.

In the refugee context, “well-founded” is a standard of proof when assessing the fear of persecution. It is not necessary for the adjudicator to be fully convinced of the truth of each and every factual assertion made by the applicant. The adjudicator will have to assess the overall credibility of the applicant’s claim. United Nations High Commissioner for Refugees, Note on Burden and Standard of Proof in Refugee Claims (16 December 1998) para. 11. Credibility is established “where the applicant has presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore is, on balance, capable of being believed” (ibid.).

In the same way, to claim the application of the principle of nonrefoulement, migrants are required to prove that there is a “real risk” of torture or inhuman and degrading treatment or of another irreparable harm in the case they are sent back to their country of origin. The European Court of Human Right has interpreted the standard of proof in this respect as requiring the migrants to prove the existence of substantial grounds for believing that he or she will be submitted to ill-treatment if sent back in the country of origin. Such grounds need to go beyond mere theory or suspicion, but the risk does not have to meet the test of being highly probable (see, e.g. Soering v The United Kingdom App no 14038/88 (ECtHR, 7 July 1989) para. 99; Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008), para. 140.

An individual is a stateless person from the moment that the conditions in Article 1.1 of the United Nations Convention relating to the Status of Stateless Persons are met ((adopted 28 September 1954, entered into force 6 June 1960) 360 UNTS 117). As for the first element of the definition, according to United Nations High Commissioner for Refugees (UNHCR): “[a]n enquiry into whether someone is stateless is limited to the States with which a person enjoys a relevant link, in particular by birth on the territory, descent, marriage, adoption or habitual residence…” (UNHCR, Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons, (2014) p. 12).

The second element of the definition “under the operation of its law” requires an analysis of how a State applies its nationality laws in an individual’s case as well as of any review/appeal decisions that may have had an impact on the individual’s status. UNHCR has clarified that: “This is a mixed question of fact and law. … [A] State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to “law” in the definition of statelessness in Art 1.1 therefore covers situations where the written law is substantially modified when it comes to its implementation in practice” (ibid., pp. 15 and 16).

Article 1.1 applies in both migration and non-migration contexts. A stateless person, for example, may have lived his or her entire life and have never crossed an international border. Nonetheless, statelessness is often considered as both a cause and a consequence of migration. In some cases, a stateless person may also become a refugee if he or she is unable or unwilling to return to his or her place of habitual residence due to fear of persecution on one of the grounds of the refugee definition (United Nations Convention relating to the Status of Refugees ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137) Art. 1(A)(2)).

Statelessness may result from a number of causes including conflict of nationality laws, the transfer of territory (i.e. State succession), administrative practices, discrimination, lack of birth registration, arbitrary deprivation of nationality, renunciation of nationality and long-term residence abroad. Statelessness can also inherited by children from their stateless parents.

The Revised Guidelines on the Prevention of Access by Stowaways and the Allocation of Responsibilities to Seek the Successful Resolution of Stowaways Cases provide instruction on the steps to be followed in cases of stowaways and the responsibilities of States (International Maritime Organization (2010) MSC 88/26/ Add/1). Some of the principles set forth in the Guidelines are an application of human rights standards to stowaways. Principle 1 recognizes that “[s]towaway incidents should be dealt with in a manner consistent with humanitarian principles.” Principle 7 recognizes the right of stowaway to international protection and Principle 9 sets forth their right to return. The same principle also stipulates that: “Where the nationality or citizenship or right of residence cannot be established, the State of the original port of embarkation of a stowaway should accept the return of such a stowaway for examination pending final case disposition” (Principle 10) (ibid., para. 3).

In the absence of an international definition of stranded migrants, some authors consider that the term can apply to all migrants, regardless of their status, duration and reasons of their stay abroad, with the only commonality being that they cannot move out of the situation in which they find themselves. According to this broad approach, migrants may become stranded during any stage of their migration process and the term can be used to identify situations in which, not only irregular, but also regular migrants find themselves (V. Chetail and M. A. Braeunlich, Stranded Migrants: Giving Structure to a Multifaceted Notion, Global Migration Research Papers (no. 5/2013) pp. 14 and 11).



The term is currently also used to identify migrants who are stranded at sea, for example because no State let them land on their shores, or who are expelled and abandoned in no man’s land.

Requests for surety are frequently included as part of bail or bond conditions. The person providing surety is sometimes known as a guarantor or bondsperson.

The surrogate mother may be the genetic mother or she may have had a fertilized embryo implanted in her, in which case she will not be genetically related to the child. The commissioning couple may both be the genetic parents, or just one or neither of them may be genetically related to the child. Legislation regarding the surrogacy agreement, the rights of the surrogate mother and regulation of parentage varies a lot from one country to another. A number of countries also regulate international surrogacy (Government of the United Kingdom, Surrogacy www.gov.uk/government/uploads/system/uploads/attachment_data/ file/258243/surrogacy.pdf (last accessed 12 February 2018)).

The terms “victim” and “survivor” are usually used interchangeably. “Victim” is a term often used in the legal and medical sectors. “Survivor” is the term generally preferred in the psychological and social-support sectors because it implies resiliency (UNFPA, Managing Gender-based Violence Programmes in Emergencies, E-learning Companion Guide (2012) p. 8).

Sustainable reintegration implies that returning migrants are able to make further migration decisions a matter of choice, rather than necessity (International Organization for Migration, Towards an Integrated Approach to Reintegration in the context of return (IOM 2017), p. 3). In the context of internal displacement and return of ex-combatants, reintegration may require specific approaches, that are addressed under the entries for durable solutions and reintegration of ex-combatants.

Temporary protection or stay arrangements (TPSAs) are complementary to the international refugee protection regime, being used at times to fill gaps in that regime as well as in national response systems (United Nations High Commissioner for Refugees, Guidelines on Temporary Protection and Stay Arrangements (2014) para. 3). TPSAs may be used, for example, as a protection response to large-scale influxes or complex, mixed population movements. They provide immediate protection from refoulement, as well as minimum standards of treatment.

The United Nations Convention on the Law of the Sea (UNCLOS) stipulates: “The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law” ((adopted 10 December 1982, entered into force 16 November 1994) 1833 1834 1835 UNTS 3, Art. 2). The Convention further stipulates that every State has “the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention” (ibid., Art. 3).

The UNCLOS also states that any vessel traversing these waters has the right of innocent passage; this right is lost however if the passage is considered as non-innocent. In the context of irregular migration, the loading or unloading of persons contrary to the immigration laws and regulations of the costal State is deemed is non-innocent passage (ibid., Art. 19.2(g)). Consequently, the coastal State can prevent the passage of a vessel suspected of carrying irregular migrants.

For example, in cases of humanitarian evacuations, the term is used to identify non-nationals who are evacuated from a country where they have fled and of which they also do not have the nationality. The term is also used in the context of regional organizations. For example, in the European Union, those who are not citizens of the Union within the meaning of Article 20.1 of the Treaty on the Functioning of the European Union are referred to as third-country nationals (European Union, Consolidated Treaty on the Functioning of the European Union, (2016) OJ C 202/47).

Torture is prohibited by numerous international agreements such as: Article 5 of the Universal Declaration of Human Rights (United Nations, General Assembly Resolution, 2017 A (10 December 1948)); Article 7 of the International Covenant on Civil and Political Rights ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171); Article 2 of the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment ((adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85); Article 3 of the European Convention on Human Rights ((adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221); Article 5.2. American Convention of Human Rights ((adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123); Article 5 of the African Charter on Human and Peoples’ Rights ((adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217); Art. 8 of the Arab Charter on Human Rights ((adopted 22 May 2004, entered into force 15 March 2008) in 12 (2005) International Human Rights Reports 893); and Principle 14 of the Human Rights Declaration Association of Southeast Asian Nations (adopted 18 November 2012).

The prohibition of torture is generally considered as a peremptory norm of international law. It is also the basis of the principle of non-refoulement according to which no one should be sent back to a State where “there are substantial grounds for believing that he would be in danger of being subjected to torture.” (Convention Against Torture, ibid., Art. 3).

Unlike the definition provided by the Convention against Torture (ibid.), the condition of an involvement or acquiescence by a public official or a person acting in official capacity is not a requirement for the application of the relevant provision of the European Convention

of Human Rights (Art. 3).

The European Court of Human Rights has also clarified that to fall within the scope of application of Article 3 a minimum threshold of severity of the treatment must be met. The assessment of this minimum is done on a case-by-case basis, by taking into account the duration of the treatment, its physical and mental effects, and, in some cases, the sex, age and state of health of the victim. Ireland v the United Kingdom, App. No. 5310/71 (European Court of Human Rights (ECtHR), 18 January 1978) para. 162. The distinction between torture and inhuman treatment is based both on the severity of the suffering (ibid., para. 167) and, under the Convention against Torture, on the existence of a specific purpose for which the suffering is inflicted (as stipulated in Art. 1 of the Convention). However, the determination of which acts amount to torture may evolve with the time. Consequently, acts previously classified as “inhuman and degrading treatment” as opposed to “torture” “could be classified differently in future” Selmouni v France, App 25803/94 (ECtHR 28 July 1999) para. 102). The standard for an act to be considered as “torture” is evolving in parallel to the increasingly high standards of human rights protection, which require “greater firmness in assessing breaches of the fundamental values of democratic societies” (ibid.).

The United Nations Department of Economic and Social Affairs (UN DESA) classifies a visitor as a tourist “if his/her trip includes an overnight stay, or as a same-day visitor (or excursionist) otherwise” UN DESA, International Recommendations for Tourism Statistics (2008) para. 2.13.

Article 3 of the Trafficking Protocol also stipulates that: “[t]he consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used” Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, Art. 3(b).

Trafficking can also happen within State borders.

Transitional justice mechanisms can include: “both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof” (United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General (23 August 2004) UN Doc. S72004/616, para. 8). Transitional justice mechanisms may also be used to address displacement. Some research studies suggest that “transitional justice mechanisms and grassroots coexistence interventions may foster reconciliation and have a significant positive impact on the accessibility and quality of durable solutions to displacement. However, they also carry a number of risks that may in fact undermine reconciliation and effective solutions to displacement” (M. Bradley, Displacement, Transitional Justice and Reconciliation: Assumptions, Challenges and Lessons (April 2012) Forced Migration Policy Briefing 9, Refugee Studies Center, University of Oxford, p. 2).

The important role that transnational corporations play in terms of migration is two-fold. On one hand, transnational or diaspora communities may set up businesses that are operational in both their countries of residence and origin, and these entities can make an important economic contribution in both countries. On the other hand, these entities may engage in the employment of migrant workers. In this context, and “within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law,” including, among others, the right to equal opportunity and non-discriminatory treatment United Nations Commission on Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003) UN Doc. E/CN.4/Sub.2/2003/12/ Rev.2, paras. 1 and 2).

The United Nations Convention on Transnational Organized Crime does not specifically define transnational organized crimes, nor provide a list of crimes that may fall under this category ((adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 507). This was a conscious choice of the drafters of the Convention to allow for a broader applicability of the Convention to types of crimes given that they rapidly evolve United Nations Office on Drugs and Crime, Organized Crime www.unodc.org/unodc/en/organized-crime/intro.html#what_organized_crime (last accessed 12 February 2018).

“This definition indicates the close relationship between trans-nationalism and globalisation, which also refers essentially to the rapid expansion of cross-border transactions and networks in all areas of life. At the same time, the concept suggest[s] that boundaries between nation-states are becoming less distinct.” United Nations Educational, Scientific and Cultural Organization, Glossary of Migration Related Terms www.unesco.org/shs/migration/glossary (last accessed 14 April 2018).

The notion of trapped populations applies in particular to poorer households who may not have the resources to move and whose livelihoods are affected (International Organization for Migration, Migration, Environment and Climate Change: Evidence for Policy (MECLEP), Glossary (2014) p. 17).

Passports are the most widely used forms of travel documents. Some States also accept identity cards or other documents such as residence permits. Travel documents are sometimes issued by regional organizations (i.e. Economic Community of West African States (ECOWAS) Passport), and by the United Nations (UN) for its staff (i.e. UN laissez-passer travel document).

International practice is moving towards issuance of machinereadable travel documents, which comply with International Civil Aviation Organization (ICAO) standards, printed on labels with security features.

According to Article 28.1 of the Convention relating to the Status of Refugees: “The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a document to any other refugee in their territory…” ((adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137). Article 28 of the Convention relating to the Status of Stateless Persons also contains a similar provision ((adopted 28 September 1954, entered into force 6 June 1960) 360 UNTS 117).

The actual journey can pose health risks to migrants, depending on factors such as the duration and mode of transport, if the travel is regular and organized or forced. Assistance in the context of travel health involves the mitigation of health risks that may occur during or result from travel. Health assessments, preembarkation checks and medical escorting typically fall under this umbrella.

In the context of migration, children separated from both parents or other caregivers are generally referred to as unaccompanied migrant children (UMC).

Migrants can find themselves as undocumented in one of the following two ways. First, they have documentation that acts as proof of identity but they do not have documentation that proves their right to enter and stay in the country, or such documentation is fraudulent or no longer valid. In this meaning, this expression is used as a synonym of “irregular migrant” (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ((adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, Art. 5(b)). Secondly, they do not hold any form of documentation that proves their identity nor do they have any other proof of their right to enter and stay in the country.

Undocumented migrants who lack any identity document usually experience more difficulties in accessing services, in obtaining permits to reside or work, or in returning to their countries of origin. Undocumented migrants may even, in the long term, be at risk of statelessness if it becomes impossible for them to obtain any evidence of their nationality.

Also referred to as a migrant worker in an irregular situation.

Urbanization in general is attributed to three factors: natural population growth, net rural-to-urban migration, and also the progressive extensions of urban boundaries and creating of new urban centres. The term often refers to a broad rural-to-urban transition involving changes in population, land use, economic activity and culture. International Organization for Migration, World Migration Report (2015) p. 202.

Temporary travel abroad for purposes of recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimages does not change a person’s place of usual residence (ibid.).

The terms “victim” and “survivor” can be used interchangeably. “Victim” is a term often used in the legal and medical sectors. “Survivor” is the term generally preferred in the psychological and social support sectors because it implies resiliency (UNFPA, Managing Gender-based Violence Programmes in Emergencies, E-learning Companion Guide (2012) p. 8).

The definition provided in the Council of Europe Convention on Action Against Trafficking in Human Beings has been adapted to ensure consistency with the definition of smuggled migrant.

The visa requirements of an individual’s travel outside his or her country will depend on the agreements between the State of whom he or she is a passport holder and its international agreements with the transit and destination States. The types of visas that are issued vary from State to State, and may have differing labels, but generally include: student visa, tourist visa, workers visa, marriage visa, visitor visa, business travel visa, and medical visa.

International practice is moving towards issuance of machinereadable visas which comply with International Civil Aviation Organization standards, printed on labels with security features.

Refusal may be inter alia attributed to the fact that the applicant does not fall into one of the categories who are authorized to enter the State under its laws, to reasons of public order, public health, or because the applicant has insufficient resources, etc.

For statistical purposes, the United Nations Department of Economic and Social Affairs (UN DESA) defines a visitor as “a traveller taking a trip to a main destination outside his/her usual environment, for less than a year, for any main purpose (business, leisure or other personal purpose) other than to be employed by a resident entity in the country or place visited” (UN DESA, International Recommendations for Tourism Statistics (2008) para 2.9.

As a concept, vulnerability implies exposure to and susceptibility to some form of harm. There are different forms of harm, meaning that different sectors use the term differently (e.g. vulnerability to food insecurity, vulnerability to hazards, vulnerability to harm and violence and abuse, vulnerability to rights violation).

Vulnerability derives from a range of intersecting and co-existing personal, social, situational, and structural factors. For example, in crisis or disaster affected communities, individuals and groups may have different levels of vulnerability, depending on their exposure to hazards or to risks of neglect, discrimination, abuse and exploitation. The level of exposure is determined by the interplay of many factors: their sociodemographic characteristics, their capacities (including knowledge, networks, access to resources, access to information and early warnings, etc.), their location (in a camp, in a spontaneous settlement, in a transit center, at the border, etc.) and the crisis induced factors having an impact on them (such as separation, loss and lack of resources and opportunities, discrimination in access to assistance, etc.) (International Organization for Migration, Guidance Note on How to Mainstream Protection across IOM Crisis Response (2016) IN/232, pp. 6–7).

War crimes include, among others, the following conducts involving movements of people in international armed conflicts: the unlawful deportation or transfer or unlawful confinement; the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies; or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. In case of an armed conflict not of an international character, war crimes encompass: ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand (Rome Statute of the International Criminal Court ((adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3) Arts 8.1 and 8.2).

In some immigration systems, work permits can initially take the form of visas, allowing the holder to work temporarily. These permits are then normally renewed in the form of a work permit prior to expiration. In some cases, a residence permit also allows the person to work without requiring a separate work permit.

The Declaration on Racism, Racial Discrimination, Xenophobia and Related Intolerance recognizes 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” (Durban Declaration, adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (2001) para. 16).