VON OSWALD, A.: DOES A HUMAN RIGHT OF MIGRATION EXIST? 2012


Everytime one asks if a human right of migration exists, the question creates uncertainty about the intersection between human rights and migration. In most of the cases in the academic world the answer of students is „yes, a human right of migration exists, but it´s not accomplished“.
To answer this question in a satisfying way we have to clarify the distinction between human rights and human rights law and to distinguish between a legal and a moral, idealistic approach.

Complex interrelationship between migration and human rights

Human rights are intimately connected with every step of the migration process – they are normally implicated in the reasons why people leave their country.
This complex interrelationship between migration and human rights is multifaceted, and can be found at all stages in the migratory cycle: in the country of origin, during transit, and in the country of destination. When the migrant crosses a frontier, the act that defines international migration, international legal instruments intersecting migration and human rights become enforceable.

From the legal perspective we have to ask: what is really guaranteed for migrants in international human rights law?
At the international level, there exists the right to emigration for all migrants:
„Everyone has the right to leave any country, including his own, and to return to his country“ (article 13 of the Universal Declaration of Human Rights).This right guarantees the right of emigration covering not only immigrants, refugees and asylum seekers, but also internally displaced persons, economic migrants or even students.
While the right to leave one's country is recognized, on the other side there is no corresponding right to enter or immigrate in another country without that state's permission. Ultimately the decision on who should enter a country remains an exercise of sovereignty.

Although there is no general right of immigration, international human rights law guarantees the right to seek asylum:  „Everyone has the right to seek and to enjoy in other countries asylum from persecution“ (article 14 of Universal Declaration of Human Rights).

But more important is the fact that a migrant who entered a country or remained there without authorisation and without applying for asylum does not nullify the state’s duty under international law to protect his or her basic rights without any discrimination, for example against torture, degrading treatment, or forced labour.

Distinction between Refugees and Migrants

From this legal point of view it is essential to distinguish between refugees and migrants. In the public and scientific debate migrants are divided in two main categories:

1. Voluntary migrants, including migrant workers and other economic migrants and, at the other end, 2. Refugees, who are forced to leave their countries to escape persecution. An intermediate point on the spectrum is occupied by victims of trafficking.

In reality the distinction between refugees and other people on the move is often fluent. It is important to remember however, that refugees have a distinct legal status. Refugees are forced to leave their country because their lives or integrity are in danger. Migrants and other groups on the move often make a conscious decision for economic and other reasons. Refugees don't have this choice. Refugees are forced to leave and need international protection.

Both voluntary migrants and refugees have special rights protections in international law. In the case of refugees, these protections have become a separate and well-established protection regime. The 1951 Convention relating to the Status of Refugees, with just one “amending” and updating Protocol adopted in 1967, is the central feature in today’s international regime of refugee protection, and some 147 States have now ratified either one or both of these instruments (as of June 2012). The Convention, which entered into force in 1954, is by far the most widely ratified refugee treaty. Voluntary migrants are protected under general principles of international human rights law, and — increasingly — under the UN International Convention on the Protection of the Rights of All Migrant Workers and Their Families (ICMW), which entered into force in July 2003. Countries that have ratified the Convention are primarily countries of origin of migrants (such as Morocco, Turkey and the Philippines). For these countries, the Convention is an important vehicle to protect their citizens living abroad. Paradoxically, no migrant-receiving State in Western Europe or North America has ratified the Convention.

Growing complexity of Migration

In reality, however, the differentiation between the different types of migrants is far from clear-cut. At the point of making the decision to move, motivations may be mixed as a combination of choice and compulsion. A growing number of people are on the move for a combination of reasons that fundamentally are related to safeguarding physical and economic security. Thus, migration is very much linked to coping with livelihood problems caused by complex issues. These can be persecution, political turmoil and armed conflict as also poverty and environmental problems arising out of factors such as climate change, population pressure, and natural disasters. This phenomenon is called by UNHCR „mixed migration flows“ or „mixed migration context“.

There is a need of more research with a human rights perspective. This approach would help identifying the "push factors” and examine the degree to which different flows of economic migration are, in fact, voluntary.

References

Dembour, M.-B.: What Are Human Rights? Four Schools of Thought, Human Rights Quarterly, Volume 32, Number 1, February 2010

European Council on Refugees and Exiles: http://www.ecre.org/refugees/refugees/who-are-refugees.html

Grant, Stefanie: Migrants' Human Rights: From the Margins to the Mainstream, march 2005, in: http://www.migrationinformation.org/feature/display.cfm?id=291

Hollenbach, David (ed.): Driven from Home. Protecting the Rights of Forced Migrants, Georgetown University Press, 2010

Morton, Klaerum: Refugee Protection Between State Interests and Human Rights: Where is Europe Heading?, Human Rights Quarterly, Vol. 24, Number 2, May 2002

Touzenis, Kristina/Cholewinski, Ryszard: The Human Rights of Migrants, in: International Journal on Multicultural Societies, Vol. 11, No. 1, 2009, pp. 1 - 19

UNHCR: The Politics and Practice of Refugee Protection, Second Edition, Authors: Alexander Betts, Gil Loescher and James Milner, Routledge, November 2011

Zard, Monette: Human Rights Strengthen Migration Policy Framework,
International Council on Human Rights Policy , March 2005, in: http://www.migrationinformation.org/USfocus/display.cfm?ID=295

Dr. Anne von Oswald, Netzwerk Migration in Europa e.V., 2012

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