International migration law (IML) is a legal framework that can inform policymaking on migration.

A State cannot use domestic law to justify not complying with its international (global and regional) law obligations. In other words, States have the duty to amend and adopt any relevant laws and measures, upon ratification of an international law instrument. Nevertheless, customary international law and jus cogens norms that are non-derogable apply to all States, regardless of treaty ratifications. For instance, all States must recognize the principle of non-refoulement and the prohibition of torture, genocide and slavery (see Customary international law in this chapter for more details).

Most of the time, to incorporate international law at the domestic level, States adopt or amend national legislation. In addition, international conventions might contain specific obligations for States parties to implement or/and provide for general measures of implementation at the country level.

Example
Criminalizing trafficking in human beings in national legislation

According to the Trafficking Protocol, States parties should criminalize human trafficking.

In the Netherlands, the main source of criminal law is the Dutch Criminal Code, and human trafficking for the purposes of sexual exploitation already was an offence under Dutch criminal law when the Trafficking Protocol was drafted. However, after becoming party to the Trafficking Protocol, the Dutch legislature amended the Criminal Code. They decided to take the Protocol’s definition almost verbatim. In doing so, they widened the range of conduct that constitutes human trafficking to include other forms of exploitation, and they ensured that their national law aligned with international law.

To be in line with the Trafficking Protocol, Italy adjusted its national legislation namely with regard to protection of victims. Since 1998 (Legislative decree 286, of 25 July 1998), victims of trafficking can be granted an initial six months temporary residence permit that can be prolonged by a further 12 months if this is deemed to be necessary. When the maximum of 18 months has expired, the victim can change the temporary residence permit issued under article 18 of the legislative decree 286 to a work or study visa. However, the purpose of the above arrangement does not cater for a reflection period per se, and instead it provides direct protection to the victim. There is another option, as per article 13 of Law no. 223 of 2003 (which entered into force in 2005 with Presidential Decree no. 235). Under this article, potential victims may be granted a temporary residence permit of three to six months, during which the authorities may seek to establish whether the person is a trafficking victim or not, in which case he or she can be given an Article 18 permit and enrolled in an assistance programme.

The effective implementation of IML would also require governments to issue administrative regulations explaining how it intends to put the national law into effect and/or what a migrant must do to comply with the law. Having a comprehensive migration strategy helps to ensure coherence, address gaps and measure progress. It is also an effective tool for implementing a State’s international obligations related to migration governance.

Example
Colombia’s Temporary Protection Permit (PPT) for Venezuelan migrants

Colombia is the country to host most Venezuelan migrants and refugees, that is, at least 1.7 million Venezuelans, representing more than 37% of the estimated 5.5 million Venezuelan refugees and migrants worldwide. While many have been granted a residence permit and regular stay by January 2021 (760,000); in March 2021 approximately 8,800 Venezuelans were pending asylum claims and only 774 Venezuelans have been recognized as refugees. More than half of Venezuelans in Colombia lack regular status, which affects their ability to access their rights, essential services, protection and assistance. Regrettably, with the COVID-19 pandemic compounding needs, many Venezuelan refugees and migrants who are already coming from a dire situation, struggle even more to survive as they face worsening poverty, job losses, evictions, hunger, and a lack of food and access to medical treatment.

The United Nations and the Organization of American States’ human rights mechanisms recognized that Venezuela has been going through a protracted, exacerbated and prolonged political, social, humanitarian and economic crisis. This means that people returning to Venezuela are exposed a situation where their human rights are at risk, given the  severe and deteriorating economic and social situation severely limits the enjoyment of economic and social rights.[1]

Colombia is also party to  international and regional instruments that protect human rights(e.g. International Covenant of Economic, Social and Cultural Rights, and American Convention on Human Rights “Pact of San Jose, Costa Rica”, among others). 

In line with all this, Colombia has recognized the urgency to turn the temporary permanence of Venezuelans in Colombia to a longer temporary stay. Colombia is also concerned by the increase of illegal markets in the context of migration (false documents, smugglers, traffickers), and wants to discourage the increase in irregular migration, while providing regular migration pathways to Venezuelan migrants who enter through the border areas authorized by the Migration Authority. Regularization is also key to long-term solutions, including access to the job market, which in turn serves to lessen the dependency of people on humanitarian assistance while also contributing to the country’s post COVID-19 socio-economic recovery.

On 1 March 2021, through Decree No. 216, the Government of Colombia adopted the Statute for Temporary Protection for Venezuelan Migrants Under a Temporary Protection Regime and other related migration dispositions. The statute is a legal mechanism for temporary protection for Venezuelan migrants wishing to remain in Colombia temporarily and that comply with the specific criteria, including:

  • being in Colombian territory on a regular basis as holders of one of the migration permits emitted by Colombia (entry and stay permits (Permisos de ingreso y permanencia - PIP); temporary stay permits (Permiso temporal de Permanencia – PTP), special stay permits (Permiso Especial de Permanencia – PEP; Permiso Especial de Permanencia para el Fomento de la Formalizacion - PEPFF);
  • being in Colombian territory on a regular basis as holders of a SC-2 Safe-conduct of Permanence;
  • being in Colombian territory irregularly as of 31 January 2021;
  • entering Colombian territory regularly from 29 May 2021 to 28 May 2023.

This Temporary Statute of Protection for Venezuelan Migrants is composed of the Single Registry of Venezuelan Migrants and the Temporary Protection Permit (PPT), and it will have a validity of ten years, until 30 May 2031. Venezuelans fulfilling the criteria above can apply for PPT identification document. Moreover, asylum seekers and those with an open refugee procedure can decide to apply for the PPT, but their process for international protection will not be affected until the PPT is authorized. Since Venezuelan migrants cannot have two permits, they can then decide to a) either keep the PPT or b) to apply for asylum or continue with their international protection-refugee procedure. The Special Permit of Permanence (PEP), which was the previous permit adopted by the Colombian Government, can also be converted into the new PPT. The PPT enables regularization of certain migrants in an irregular situation and will facilitate access to rights as it will provide access to basic services including the national health system and COVID-19 vaccination plans.

The Special Administrative Unit of Migration Colombia is the responsible entity for these procedures. Currently, the Government is in the process of adopting the Resolution which aims to implement and operationalise the Statute for Temporary Protection for Venezuelan Migrants, that is, to start the procedures of identification, registration, data collection, biometrics and emission of the new PPT.

[1] This includes, for example: the most severe period of hyperinflation the region has seen, affecting the ability to purchase basic foods, medicine, and other essential goods; a minimum salary equivalent to 2 dollars per month (as at September 2019), meaning that a family would need to earn the equivalent of 41 minimum monthly salaries just to cover the basic food basket; exacerbating inequalities; public services facing serious and recurring outages; severe fuel shortages; insufficient access to medicines and treatment and shortage of supplies which has caused numerous and preventable deaths and serious operational problems of the health sector; violence against indigenous people, including the deaths; violations of indigenous and environmental rights in the Arco Minero del Orinoco region extrajudicial executions and lack of effective protection mechanisms for witnesses and family members of the victims, the majority of whom are women; members of security forces convicted for human rights violations; political repression and shrinking of the democratic space; arbitrary detentions; harassment; violation of the right to a fair trial, including the right to be tried by an independent and impartial tribunal; criminalization of activities of domestic human rights organizations. (Adapted from: Oral Update on the Human Rights Situation in the Bolivarian Republic of Venezuela, Human Rights Council, 42nd Session Statement by Michelle Bachelet, UN High Commissioner for Human Rights, 9 September 2019)

Source

Republic of Colombia, 2021.

Because it is the result of States’ agreements on general norms and lines of conduct, IML provides guidance on how States can regulate and deal with various aspects of migration at the national level and keep in line with international law standards.

Policy Approaches
Guidance to develop gender-responsive policies in CEDAW

The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) requires States parties to develop legislation on certain aspects (such as prohibiting discrimination on the basis of gender in education). It also encourages the development of gender-responsive policies by providing concrete suggestions. These include, for instance, adopting temporary special measures aimed at accelerating actually existing equality between men and women, or adopting special measures aimed at protecting maternity (article 4).

Implementing IML depends on the daily work of a substantial number of government officials of different ministries and levels of government, including local and municipal governments. They include not only border and immigration authorities, police, prosecutors, labour inspectors and consular staff, but also health authorities, social welfare service providers, child protection and education experts.

To Go Further
  • IOM, Training and Capacity Building. The International Migration Law Unit of IOM provides training on international migration law (IML). Together with IOM country offices, it supports the capacity development of State actors through enhancing understanding on the international legal framework and how to implement it at the national level.
  • Dufvenmark, F., Rights-Based Approach to Programming, 2015.

Many States have established national human rights institutions (NHRIs) or national preventive mechanisms (NPMs) for the promotion and protection of human rights. Civil society, non-governmental and non-profit organizations, movements, groups, individuals and initiatives play an important role in supporting governments to ensure the implementation of legislation and policies, as well as to monitor and address core human rights concerns at the national level, including the human rights of migrants.

Example
Examples of National Human Rights Commissions
To Go Further

As part of a domestic legal system, most human rights violations can be addressed by domestic remedies through judicial and/or quasi-judicial mechanisms (such as national courts, ombudspersons, or other complaint mechanisms). Such mechanisms must be independent and impartial bodies. As a human right, all individuals shall have access to justice, to seek and obtain remedy for violations in compliance with the law. Therefore, the judiciary might be called on to interpret and uphold the law in migration-related cases. Though the judiciary base their judgements on national law, national judges often refer to international or regional instruments or jurisprudence when dealing with migration-related cases in order to interpret and clarify the rights and obligations of the parties involved.

Example
The monitoring role of the ombudsperson

Since the arrival of a large number of migrants in Greece in 2015, the Greek Ombudsperson has been active in monitoring their situation and calling for concrete measures by the Government. In June 2017, the Greek Ombudsperson issued its special report Migration flows and refugee protection, focusing on challenges faced by Greece in ensuring that international migration law (IML) standards were being met, on the islands and on the mainland. Some of the issues identified include the use of detention, safety in the camps, education for children (particularly on the islands), identification and referral of persons in vulnerable situations, respect for procedural safeguards in return and readmission procedures, and child protection issues.

When domestic remedies are exhausted, mechanisms and procedures for individual complaints or communications are available at the regional and international levels (as set out above under Monitoring mechanisms) to help ensure enforcement and compliance with international or regional standards at the national level.

Case Study
How national tribunals use regional legal instruments

In a ruling of 2018, the Federal Administrative Tribunal of Switzerland considered the right of a child to family reunification, for a child who reached the age of majority during the procedure. The Tribunal based its ruling on article 44 of the Swiss Federal Act on Foreigners, and also on article 8 of the European Convention on Human Rights (ECHR) and the decisions of the European Court of Human Rights (ECtHR). Based on article 8 of the ECHR, the Swiss court interpreted the Swiss law to conclude that the right to family reunification does not expire when the child who could benefit from it reaches the age of majority during the procedure.

IML is binding upon States because, in the case of treaties, it has been negotiated and accepted by them. National sovereignty and protection of the rights of migrants are not contradictory but mutually reinforcing; they are two sides of the same coin. As law developed by sovereign States, IML serves States’ interests and is firmly rooted in existing practices.

key messages
  • States have the duty to amend and adopt the relevant laws and measures upon ratification of an international law instrument. Nevertheless, customary international law and jus cogens norms that are non-derogable are applicable upon all States, regardless of treaty ratifications.
  • International migration law (IML) does not only include requirements to align national laws and policies with international standards, but also acts as a roadmap and guidance to inform national policymaking.
  • To incorporate international law at the domestic level, States adopt or amend national legislation. Policies will enact these legal changes.
  • National human rights institutions (NHRIs) or national preventive mechanisms (NPMs) can be created to support governments to ensure that legislation and policies are implemented in line with human rights standards.
  • Complaints of violations of human rights of migrants are usually addressed at the national level through judicial and/or quasi-judicial mechanisms (such as national courts, ombudspersons, or other complaint mechanisms), as independent and impartial bodies, before being submitted at the regional and international levels.
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