Migration Legal Framework

“How our societies treat migrants will determine whether we succeed in building societies based on justice, democracy, dignity and human security for all.”

                                Navanethem Pillay, UN High Commissioner for Human Rights 

In todays world migrants suffer an inferior position where rights are diminished. Irregular migrants are excluded from legal protection or redress. For human beings who enter a country in an undocumented fashion or stay after expiration of a permit, usually the motivation not to be sent back to their country of origin is so strong that they are prepared to accept many hardships and denials of rights. Whether escaping war, famine, prosecution, natural catastrophes, economic depression, migrants often find the insecurity in the country of destination preferable to that at home country. Having no choice but to leave, many are prepared to risk losing their rights for a fighting chance of thereafter gaining them.

Migration is a highly charged and contested political issue. Control of borders is considered essential aspect of sovereign state. States tend to hide responsibility for the guarantee of rights behind the political and social anxieties about security, national identity, social change and economic uncertainty. National laws tend to set a framework that threatens the migrants human rights. This way of approaching legal migration, with restrictive policies and laws has an effect on the increase of undocumented migrants, increasing the migrants vulnerability to exploitation and abuse. Therefore is of essential interest to both the individual and the State to understand, respect, and effectively apply international human rights law.

Fundamental rights of all persons, regardless of their migration status include:

The right to life, liberty and security of the person and to be free form arbitrary arrest or detention, and the right to seek and enjoy asylum from prosecution;

The right to be free from discrimination based on race, sex, language, religion, national or social origin, or other status;

The right to be protected from abuse and exploitation, to be free form slavery, and form involuntary servitude, and to be free from torture and from cruel, inhuman or degrading treatment or punishment;

The right to a fair trial and to legal redress;

The right to protection of economic, social and cultural rights, including the right to health, an adequate standard of living, social security, adequate housing, education, and just and favorable conditions of work, and

Other human rights as guaranteed by the international human rights instruments to which the State is party and by customary international law.

(ALL THESE RIGHTS ARE HUMAN RIGHTS TO WHICH ALL PERSONS, WITHOUT EXCEPTION, ARE ENTITLED.)

The legal framework:

The Universal Declaration of Human Rights (UDHR) affirmed in 1948 that “all human beings are born free and equal in dignity and rights”.

The universal framework for international human rights law is contained in the -

Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR)-

Supplemented by regional human rights instruments of general breath- the European Convention for the Protection ofHuman Rights and Fundamental Freedoms (ECHR) and its Protocols and the Revised European Social Charter (ESC(r)) in the Council of Europe system; the AmericanDeclaration of the Rights and Duties of Man (ADRDM), the American Convention onHuman Rights (ACHR) and its Additional Protocol in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), for the Inter-American system; the African Charter on Human and Peoples' Rights for the African one; and the Arab Charter on Human Rights for the Arab system.

Furthermore, other treaties for specific categories of people or addressing specific human rights of significance for some or all migrants include- at a global level, the Convention on theElimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child; (CRC) and its Protocols; the Conventionon the Rights of Persons with Disabilities (CRPD); the International Conventionon the Elimination of All Forms Racial Discrimination (ICERD); the Conventionagainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(CAT); and the International Convention for the Protection of All Persons fromEnforced Disappearance (CPED); The International Convention on the Protectionof the Rights of All Migrant Workers and Members of Their Families (ICRMW).

(STATES HAVE OBLIGATIONS NOT ONLY TO RESPECT, BUT ALSO TO PROTECT AND FULFIL HUMAN RIGHTS.)