International law recognizes State sovereignty, and State sovereignty recognizes international law (for more detail, see International migration law). In migration governance, States have the right to regulate the entry and stay of foreign nationals on their territory, as well as the right to grant nationality. State sovereignty should nevertheless be exercised in full conformity with the obligations of the State under international law. These obligations stem from international treaties and principles of conduct that are negotiated and established by States themselves in good faith for the maintenance of peaceful relations and global order. That is, human rights stem from State sovereignty, as they are set forth in international treaties that are negotiated and ratified by States.

Concerning human rights, States have an obligation to respect and protect the human rights of all persons on their territory or under their jurisdiction, without discrimination. This includes all migrants, regardless of their status. States parties to human rights treaties undertake to:

  • Respect human rights, refraining from interfering with the enjoyment of human rights;
  • Protect individuals and groups against human rights abuses;
  • Fulfil human rights by taking action to facilitate the enjoyment of basic human rights.

Thus, States have obligations to refrain from interfering with or impairing an individual’s enjoyment of their rights (such as by engaging in prohibited practices). As well, States have obligations to protect from, prevent, and guarantee redress for infringements of human rights. This includes situations of infringement by third parties such as businesses, the private sector and non-State actors.

Human rights are also the rights of migrants. However, there may be limitations to a few rights, in particular related to nationality or regular migration status. To be lawful, such limitations must be established by national law and must be necessary for the protection of legitimate State interests (such as national security, public safety and health). Also, they must be compatible with the other rights recognized by the relevant treaty, and be non-discriminatory. Such limitations should also not go beyond what is necessary to address the legitimate State interest. In general, the instruments defining the rights also specify the lawful reasons under which limitations may be imposed, as well as the scope of these limitations.

In exceptional and few cases, States can also temporarily be exempted from fulfilling their human rights obligations. This is called derogating from their obligations, and might occur, for example, in times of war or public emergency. The derogation must be proportionate, limited in time, and consistent with the other obligations of the State under international law. No derogations are allowed from jus cogens norms, such as protection against refoulement (see more in the discussion on Customary international law). Furthermore, no derogation is permitted from some fundamental rights listed in conventions such as the International Covenant on Civil and Political Rights (ICCPR): the right to life, the prohibition of torture or cruel, inhuman or degrading treatment or punishment, the prohibition of slavery, the right to recognition everywhere as a person before the law and the right to freedom of thought, conscience and religion.

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Afghan migrants protest conditions in hospitality centre in Malakasa, Greece 08 June 2016.

© EPA/YANNIS KOLESIDIS

Benefits of a rights-based approach

A rights-based approach to migration governance means that national migration policy is underpinned by human rights, under international law. Migrants are rights holders and when their human rights are respected, they are better able to contribute to the societies they reside in and better able to support the development of their communities and countries of origin.

Human rights cannot be protected without the rule of law. The rule of law is the vehicle for implementing human rights, turning them from a principle into a reality. Respect for human rights, including the rights of all migrants regardless of their status, is a prerequisite for and a necessary element of the rule of law. At the same time, migrants, in the same way as citizens, are bound by the laws of the country they live in. If the law is not followed, they will face consequences (for more, see International migration law). As stipulated in article 34 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), nothing in international law relieves migrants from the obligation to comply with the national laws of transit and destination countries. Nevertheless, there are certain circumstances in which migrants may need protection under international law. In these circumstances, States are obliged to comply with those laws, even if the migrants have entered the country irregularly. Such circumstances might include migrants who seek asylum or complementary/subsidiary protection.

The benefits of a rights-based approach to migration management include granting international legitimacy to the State’s governance structure. Such legitimacy can promote the international and regional cooperation necessary to more effectively manage safe, orderly, and regular migration, since migration is transnational in nature. The Global Compact for Safe, Orderly and Regular Migration offers States a great opportunity and framework for this.

Finally, adhering to a rights-based approach grants States the moral authority to promote such an approach with their neighbours and beyond in various forums and negotiations at different levels. This can contribute to better international sharing of responsibilities in the migration context and has the potential to enable States to better protect their own citizens abroad.

The principle of non-discrimination, and its impact on migration management

The principle of non-discrimination is at the core of human rights protection and goes beyond migration governance. Non-discrimination is a cross-cutting human rights principle, part of the non-derogable norms under international law. The Universal Declaration of Human Rights (UDHR) recognizes in its first article that “all human beings are born free and equal in dignity and rights”.

This principle is important to all, but it is especially important to migrants. Migrants are at particular risk of being discriminated against, as they are not nationals of their country of residence, and are often victims of stigma, stereotyping, xenophobia, racism, and the like. They may be discriminated against based on race, ethnicity, colour, language, religion, national origin, legal status, and so on. The myth that migrants steal jobs and increase crime rates generates fear that can further feed discrimination against migrants.

Any migrant in an irregular situation faces not only increased risk of discrimination but is also at risk of being denied access to justice and remedies for the violations suffered. Discrimination against migrants can occur in all settings. These can include the public sphere, work, accessing services such as education and health, or the enjoyment of their right to family life. Protection against discrimination also acts to prevent violations of migrants’ human rights.

 Under international law, discrimination is defined as follows.

Glossary

discrimination

Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

More in Glossary

(See the Key Human Rights Instruments Job Aid, on the right side hand for instruments protecting against discrimination.)

Prohibition of discrimination does not mean that differential treatment between migrants and citizens is never allowed. Some instruments specify the possibility for differential treatment. For instance, article 25 of the International Covenant on Civil and Political Rights (ICCPR) on the right to vote only refers to “citizens”, and article 13 of ICCPR regarding expulsion only applies to “non-nationals lawfully on the territory”. However, international law prohibits differential treatment based on nationality, immigration status or other grounds unless the criteria for such differentiation are based in law, are applied in the pursuit of a legitimate aim, and are proportional to achieving this aim (Committee on the Elimination of Racial Discrimination [CERD], 2002). Similarly, the Committee on Economic, Social and Cultural Rights (CESCR) (2009) confirmed that differential treatment based on prohibited grounds is to be viewed as discriminatory “unless the justification for differentiation is reasonable and objective”. In other words, there is a fine line between allowed differential treatment and prohibited discrimination, and differential treatment or distinction will amount to discrimination if the principles of international law are not complied with.

While efforts to address discrimination against migrants are often focused on what is directly or indirectly based on “nationality” or “migration status”, attention must also be paid to addressing the multiple layers of discrimination. This means considering also the different and cumulative types of discrimination on other prohibited grounds which further impact migrants (religion, gender, sexual orientation, age, ethnicity and so on). See details on addressing gender-based discrimination through Gender-responsive, evidence- and rights-based law and policy.

The prohibition against discrimination is also a central pillar of international labour law as it pertains to the workplace (read more on Labour law).

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The indivisibility and interdependence of rights, and their impact on migration management

Human rights are indivisible. In other words, all human rights are equal in importance and full enjoyment of each right is closely tied to the enjoyment of the others. The Universal Declaration of Human Rights (UDHR) enshrined civil, political, economic and social rights. The fact that the UDHR was translated into two separate covenants was a mere reflection of the political reality of the Cold War. The preambles of both the Covenants emphasize the enjoyment of all rights and their indivisibility. For migrants, just as much as for citizens, the enjoyment of civil and political rights is interconnected with and interdependent on the fulfilment of economic and social rights. The principles underscoring human rights are equality and non-discrimination, universality and inalienability, and the indivisibility and interdependence of rights.

But what do these rights and principles mean in terms of migration governance and the concrete obligations of States? The next part of this chapter highlights the indivisibility and interconnectedness of human rights and what they mean for migrants and migration governance. Without aiming to be exhaustive, it briefly introduces the content of some of the civil and political rights. Social, economic and cultural rights will also be considered later in the chapter.

While human rights are enshrined in international law, the actual implementation of rights enshrined in international instruments is very often carried out by actors at the national and subnational level. At the national level, human rights are embedded in national constitutions, in legislative and regulatory guarantees related to rights (such as legislation and policies recognizing the rights of migrants) and in the development of judicial systems guaranteeing procedural rights (such as providing migrants with concrete avenues to enjoy their rights). At the subnational level, local institutions are often responsible for ensuring that migrants enjoy their rights, such as in local hospitals (right to health), schools (right to education), and the judicial system (right to justice).

However, challenges still exist, especially as States seek to strike the right balance between the different interests involved. Below are suggested steps to ensure policies respect, protect and fulfil the human rights of migrants in line with international law. These apply to policies concerning each of the rights in Specific rights relevant in the migration context in this chapter.

Policy Approaches
Suggested process for integrating rights principles into policy formulation
  • Identify the rights holders who are affected by the policy. Ensure consideration is given to those directly and indirectly affected and to those who are marginalized or in vulnerable situations.
  • Identify the duty bearers who will be involved in implementing the policy. This should include both State representatives and other relevant actors.
  • Identify the rights impacted by the policy and the corresponding obligations of the duty bearers in upholding those rights.
  • Conduct a rights impact assessment.
  • Revise policy in response to the rights impact assessment.
  • Establish mechanisms for ongoing assessment and accountability, as well as complaint and redress mechanisms to address violations of rights.

Note: See further details on these steps in the blog post How to incorporate rights principles in policymaking?

Key messages
  • Human rights stem from State sovereignty, as they are set forth in international treaties that are negotiated and ratified by States. Thus, protecting human rights in migration governance means acting in a way that is consistent with State sovereignty.
  • States have the responsibility to respect, protect and fulfil human rights, including migrants’ rights.
  • The few exceptions to obligations towards human rights of migrants include (1) limitations stipulated in national law; (2) temporary derogations given special conditions (such as war or public emergencies); and (3) differences in treatment between nationals and migrants stipulated in international instruments and/or if justified in national law. These should be nevertheless in line with international law prescriptions for these exceptions.
  • The principle of non-discrimination is at the core of human rights protection for migrants. Only with respect to certain rights and/or narrow circumstances can distinctions be permitted between nationals and non-nationals with respect to the enjoyment of these rights (relating to legal basis, public interest/reasonable aim and proportionality).
  • Just as for nationals, the enjoyment of all human rights is only possible for migrants if all rights are protected, as human rights are indivisible and interdependent.
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