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Fiche immi e LESSON 1 : IMMIGRATION Asylum : the right of a state to protect a citizen against its own country à a lot of them don’t receive state protection but refugees are under international protection Human mobility is wider than migration (migration is a sociological fact) right to migrate =...

Fiche immi e LESSON 1 : IMMIGRATION Asylum : the right of a state to protect a citizen against its own country à a lot of them don’t receive state protection but refugees are under international protection Human mobility is wider than migration (migration is a sociological fact) right to migrate = we have the right to leave our own country but we don’t have the right to enter another country → the human right is free mvt inside a country human mobility is old : human searching for resources (eco), conquest, escape conflicts / natural disasters à migration has increased bc better comm (greater degree in europe and asia) migrations flows have increased from developing countries to developed countries + regional migration EU hasn’t solve the issue of how migrants are coming (legal migration = when countries need workers) à ex : Ukrainians were given a permit of work to enter EU Spain : receiving + transit + origine country Mobile population = inside a country or cross borders (international migrants) International migrants : no universally accepted def à country and organizations use their own criteria and legislation à UN recommendation : person that move from a place to another one and change his residence, crossing an international border - Change in residence : temporary or permanent, authorized or unauthorized - Determinants of migration : economic, family, forced - Not considered as migrant : person that travel to another country but doesn’t change usual residence Internal migrant : A person changing his/her usual residence but within  the same country à rural to urban / internally displaced persons (internation recommendations) Immigrant : from the pov of arrival / emigrant : from the pov of departure Criteria of migrant : country of birth / citizenship, type of residence visa, ethnicity or religion 6 Main categories of international migrants : - Refugees : well founded fear of being persecuted for reasons of race, ! religion, nationality, social group, political opinion + outside his country of nationality + unable / unwilling to return to that country - Victims of trafficking : recruitment, transportation, harboring of persons, by use of force, coercion, fraud for the purpose of Y exploitation (forced labor, sexual exploitation) + international or domestic - Unauthorized migrants : not a specific protection but still human right (not a crime) à undocumented, irregular, clandestine or illegal migrant - Asylum seekers : asking a state for its protection - Migrant workers : sending money to their family - International students Legal sources 6 Numbers : nb of international migrants has increased over the past decades, 3,6% of global pop, vast majority of people continue to live in their own country Facts : demographic and social effects in host country / region + part of the solu for economies / societies/ families + migration has served millions of people Doble regulation : international and states à IL recognize the right to leave our own country in certain circumstances UDHR (Universal Declaration of Human Right) : adopted by general assembly 10 dec 1948, Paris à established rights for everyone everywhere à those must be protected by every states ➔ the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, ➔ art 13 = key concept : free movement of persons (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Human rights VS states (sovereign) à persons VS sovereignty (international law is trying to create borders to sovereignty) à international law VS national law International Covenant on Civil and Political Rights of 16 December 1966 à obl for states - art 12 : everyone lawfully within the territory of this state shall have the right to lib of mvt + everyone shall be free to leave a country + no one shall be arbitrarily deprived of the right to enter his own country - at 13 : An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law Human Right International Bill: – Universal Declaration of Human Rights – International Covenant on Economic, Social and Cultural Rights – International Covenant on Civil and Political Rights Core of international human rights instruments – International Convention on the Elimination of Racial Discrimination – Convention on the Elimination of Discrimination Against Women* – Convention Against Torture – Convention on the Rights of the Child – International Convention on the Protection of All Migrant Workers and Members of their Families  – International Convention for the Protection of All Persons from Forced Disappearances – Convention on the Rights of Persons with Disabilities Non discrimination !! - Discrimination = any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights. - sex, race, color, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status In theory, everyone is protected everywhere à states have obligations toward the person in their territory à but Human rights instruments make some distinctions between national and non-nationals, regular and irregular migrants International Migration Law (IML) : international legal framework governing migration à umbrella term covering a variety of principles and rules that together regulate the international obligations of States The Global Compact for Safe, Orderly and Regular Migration adopted by UN the 10 dec 2018 à impt framework for improved migration governance + set of tools for migration policy-makers à principle of non- discrimination, focuses on vulnerability, marginalization and exclusion Statelessness Stateless Person: “a person who is not considered as a national by any state under the operation of its law” à lack of human right 5 Article 15 UDHR: Everyone has the right to a nationalityà approx 10 million Nationality: the legal bond between a person and a state =/= citizenship à Traditionally the term was used to describe a person who, outside his/her country of nationality, is denied diplomatic and consular protection or assistance of his/her country. “Stateless Refugee”: a person who is not considered as a national by any state under the operation of its law and meets the definition of a refugee in article 1 of the 1951 Refugee Convention. Causes of statelessness : States are responsible for regulating nationality matters and deciding who is a national and who is not. They base their decisions on a person's connection with the country through birth, ancestry or residence. All stateless people have such links with at least one country, but do not possess a nationality due to legal reasons or discrimination. à in many states women don’t have the same nationality righs as men (ex: cannot pass nat) à International community can’t force state to give nationality to people but some limits by international law : General principles of law, e.g. non- discrimination / Human Rights Law - 1954 (force 60) : convention relating to the status of stateless persons = sets the legal framework for the standard treatment of stateless persons - 1961: Convention on the Reduction of Statelessness mmm LESSON 2 : REFUGEES AND ASYLUM Asylum : the right for a state to give protection to a person against its own country Refugee = movement from a country to another by necessity rather than choice à War, Persecution (nationality, race, religion; political opinion), Economic hardship, Environmental degradation Refugee Definition of a refugee : a person who “owning to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…” The 1951 refugee convention : relating to the Status of refugees is the key legal doc in defining who is a refugee, their rights and the legal obligations of states The 1967 Protocol removed geographical and temporal restrictions from the convention (an international treaty that is not independent but linked to another treaty) 1946: first session of un general assembly identify principles à Main task : to encourage and assist in any was possible their early return to country of origine 1947: International refugee organization (IRO) was established à First agency to deal with all aspects of refugee situation: specifically registration status determination repatriation 1951: IRO was replaced by the office of un high commissioner of refugees (UNGCR) and convention relating to the status of refugees was adopted Convention relating to the Status of Refugees 1951: CRSR Inclusion clauses – three basic requirements 1) The person must be outside their country of origin or habitual residence 2) The person must have a well-founded fear of persecution for reasons of : race, religion, nationality, political opinion, membership of a particular social group 3) The person must be unable or unwilling to avail of the protection of their own State for reasons of such persecution persecution: An act which causes severe harm to a fundamental human right – especially the right to life, liberty and physical integrity à Direct involvement of state actors / Non state actors beyond the control of the state / Non state actors tolerated by the state Exclusion clauses: People that don’t deserve / that are receiving protection from another country / person that has been assimilated into the country Principe of non-refoulement Right to work, education, welfare assistance, freedom of religion, freedom of movement, issued identity and travel docs Obligation towards the country that provide them asylum à States: can’t punish a refugee for illegal entry or presence, expel a refugee who is lawfully in their territory save on grounds of national security or public order National legislation = complementary protection Global compact on refugees: 17/12/2018 à a framework for more predictable and equitable responsibility-sharing, recognizing that a sustainable solution to refugee situations cannot be achieved without international cooperation Objectives: – Ease the pressures on host countries – Enhance refugee self-reliance – Expand access to third-country solutions – Support conditions in countries of origin for return in safety and dignity The Office of the United Nations High Commissioner for Refugees (UNHCR) 1950 = “of an entirely non-political character” and “humanitarian and social”. 2 main functions: international protection + seeking durable solutions The Mandate of UNHCR broadened in recent years to include “persons of concern” = being persons outside their countries who are in need of international protection because of persecution or armed conflict or serious public disorder. Such persons fall generally within 5 groups : group determinations / those who could be assisted by the “good offices” / displaced persons / returnees / stateless persons ➔ Try to make refugees coming back to their own country in safety ➔ The primary responsibility is on national gvt but sometimes they are  unable so high commission supervise The Kampala Convention : 23/10/2009 (enter into force 6/12/2012) à treaty of African union that address internal displacement caused by armed conflict, natural disasters and large-scale dvp [regional level] Asylum 3 Not all the refugees become asylum seeker but only refugees can ask for asylum Asylum is a legal institution à states have the right to give protection to a foreigner this means that they have the right to act against the country of the foreigner → asylum is a right of a state to not return a foreigner to his home country (= political asylum) Asylum (or political asylum) is an ancient judicial notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or Church sanctuaries (as in medieval times). Territorial asylum is granted within the territorial bounds of the state offering asylum and is an exception to the practice of extradition (a person commits a crime and must be condemned but leaves the country to avoid the condonation, and we ask the country for extradition) Extraterritorial asylum refers to asylum granted in embassies, legations, consulates, warships, and merchant vessels in foreign territory and is thus granted within the territory of the state from which protection is sought Diplomatic asylum : only works if the state have a previous agreement to exit the person of the territory (you ask for this in embassies) à works only for latin American countries the Convention on Political Asylum concluded at Montevideo in 1933 by the Seventh International Conference of American States Irgional) The Universal Declaration of Human Rights provides that “Everyone has the right to seek and to enjoy in other countries asylum from  adopted by consensus by representatives of the 171 States attending World persecution” > Conference on HR and subsequently endorsed by UNGA on 20 Dec 1993. The Vienna Declaration on Human Rights and Program of Action similarly reaffirmed the right to seek and to enjoy asylum in 1993. The topic “Right of Asylum” was already included in the provisional list for codification drawn up by the International Law Commission (examine international practice and codify what we do in reality) in 1949 In 1957, the Commission on Human Rights suggested that responsibility 5[ for granting asylum should lie “with the international community as represented by the United Nations”, and that entitlement should extend to “every person whose life, physical integrity or liberty is threatened, in violation of the principles of the Universal Declaration”. 3 The General Assembly, in resolution 2312 (XXII) of 14 December 1967, adopted the Declaration on Territorial Asylum, in consideration of the work to be undertaken by the Commission in accordance with resolution 1400 (XIV) [ 3 This recommendation emphasizes that asylum is not only a national responsibility, but that the UN should play a central role in ensuring that people at risk of persecution or serious harm are protected. C 3 This is a broad interpretation of who should be eligible for asylum, extending protection beyond just refugees fleeing persecution based on race, religion, nationality, or political opinion, to anyone facing serious threats to their human rights. idea that human and that it's not > - asylum is a right , just the responsability of individual counties but something that the international community should uphold I a LESSON 3 : MIGRANT WORKERS they represent most of the migrants = those who are going to / have been working in another country the International Convention on the Protection of the Rights of All Migrant Workers and members of Their Families adopted in December  1990 à the GA adopted ➔ Enter into force 1 july 2003 Double foundation and a Consequence 1. Vulnerability situation due to non-State of origin and presence State of employment 2. Migrant worker rights not duly recognized everywhere: need for specific and appropriate international protection Definition of “Migrant Worker” - Article 2, Para. 1: “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national” Many types of migrant workers : “frontier worker" ; "seasonal worker" ; "seafarer" ; "worker on an offshore installation" ; "itinerant worker'' ; "project-tied worker" ; "specified-employment worker" ; "self-employed worker" Duties of countries = art 7 = pcple of non discrimination “States Parties undertake, in accordance with the international instruments concerning human rights,Duties ofto ensure to respect and States Parties to all migrant Article àand workers members of7: theirstates parties families within undertake, their territory or subject to theirin accordance jurisdiction the rights provided for in the present Convention without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or other opinion, with national, ethnic the international or social origin, nationality, age, instruments concerning economic position, property, human marital status, birth rights, or other status.”: International Labor Organization (ILO) : - to promote rights at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue on work-related issues. - founded in 1919, in the wake of a destructive war, to pursue a vision based on the premise that universal, lasting peace can be established only if it is based on social justice. UN Special Rapporteur on the human rights of migrants à main functions = examine ways and means to overcome the obstacles existing to protection of human rights / request info and sources / formulate recommendations deation 1999. Current Gehad Madi. : : ➔ 2024 : A/79/213: Children are children first and foremost: protecting child rights in migration contexts; + A/HRC/56/54: Revisiting migrants’ contributions with a human rights-based approach: a discussion on facilitating and hindering factors  ➔ 2023 : protection of labor and human rights + expand and diversify regularization mechanism ➔ 2022 : impact of climate change on HR of migrants + HR violations at international borders ➔ 2021 : impact of covid19 on the HR of migrants + means to address the HR impact of pushbacks of migrants on land and sea a M LESSON 4 : HUMAN TRAFFICKING smuggling = crossing irregularly an international border hime o country > - trafficking = criminal action in order to exploit a person (sit of vict is close to slavery) crime - against indi ➔ In practice a person can began with smuggler and turned into victim of trafficking 1949 : convention for the suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 2000: Palermo UN convention against Transnational Organized Crime and the Protocols Thereto - The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children - The Protocol against the Smuggling of Migrants by Land, Sea and Air ➔ Considered people trafficked and smuggled as victims and criminals Trafficking isn’t necessary international but international treaties has established a def à Human trafficking = the act of tricking, luring, or forcing a person into leaving their home to work… modern slavery Human trafficking : - Victim doesn’t consent to their situations, or they initially consent - Ongoing exploitation to generate illicit profits - Need to not entail the physical movement of a person Migrant smuggling : - Includes those who consent to being smuggled  - A breach of the integrity of a nation’s borders (crime against the sovereignty of the state) - Always transnational International responses : - 70’s : UN resol against migrant smuggling / trafficking + ILO convention No. 143 of 1975 - 80’s-90’s : UN Migrant Workers Convention (adopted 18/12/90 entry into force 01/07/2003) - 2000’s : UN International Convention against Transnational Organized Crime and Palermo Protocols Migrant smuggling They cooperate with smugglers even if they know that it’s dangerous Protocol against the smuggling of migrants by land, sea and air (GA assembly resol 55:25) : - Deals w/ the growing pb of organized criminal grp, high risk to the migrants at great profits for the offenders - Major achievement = a def if smuggling of migrants for the 1 time st - Preventing and combating smuggling of migrants + promoting cooperation among states parties (preventing the worst form of exploitation) à helping developing country to control better their borders Art 3 : def = (a) “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident; (b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State; - Non criminalization of migrants - Criminalization of smugglers : each state party shall adopt legislative measures Return : Each state party agrees to facilitate the return of a person who is its national or has the right of permanent residence Prevention and root causes : - Each State Party shall take measures to ensure that it provides information programs to increase public awareness of the fact that smuggling is a criminal activity frequently perpetrated by organized criminal groups for profit – - cooperate in the field of public information for the purpose of preventing potential migrants from falling victim - promote or strengthen, as appropriate, development programmes and cooperation at the national, regional and international levels, taking into account the socio- economic realities of migration and paying special attention to economically and socially depressed areas Smuggling of migrants by sea : - state cooperation - measures against smuggling of migrants by sea : states can suspect that a vessel is flying without nationality + assistance to the extent possible within their means International Law and Rescue at Sea - United Nations Convention on the Law of the Sea, 1982, Article 98 Duty to render assistance - International Convention on Maritime Search and Rescue (SAR Convention), 1979, as amended - International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended, chapter V, regulation 33 Obligation to provide assistance to persons in distress at sea: Responsibility of the shipmaster + Obligation to establish search and rescue centers (States) SOLAS (chap V) = obligates the masters to provide assistance to any person in distress at sea, regardless of nationality or status of that person, and mandates SAR (annex) = obligate parties to assist the master in delivering persons rescued at sea to a place of safety and requires appropriate operating procedures for maritime rescue A place of safety : location where rescue operations are considered to terminate / survivors safety of life is no longer threatened and where their basic human needs à gvt should cooperate to provide suitable places of safety Human trafficking “Trafficking in persons” = the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force of other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation : the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children - Art 2 : purpose = prevent and combat trafficking in persons, paying particular attention to women and children + protect and assist the victims of such trafficking, with full respect for their human rights +promote cooperation among States Parties - First def of trafficking - Tools to empower law Agreement for the Suppression of the “White Slave Traffic” 1904 and later the International Convention for the Suppression of the White slave traffic 1910 Convention Concerning Forced or Compulsory Labor 1930 Convention for the Suppression of Trafficking in Persons and the exploitation of the Prostitution of Others 1949 UN Convention Against Transnational Organized Crime + Protocols (entered into force in 2003) Consent of a victim of trafficking shall be irrelevant Means : force and coercion à when they are recruited, during transportation, upon entry or during work / subtle forms of coercion such as confiscation of papers, non-payment wages, denounce irregular migrant workers to authorities if they refused to accept working conditions Fraud, deception, abuse of power : irrelevant if the victim apparently voluntarily entered or stayed in a situation or conditions of labour exploitation / “abuse of a power or of a position of vulnerability” contained in Article 3 of the Protocol Purpose = exploitation à sexual or labor (slavery) + other forms Forced labor as 3 elements according to ILO : the activity exacted must be in the form of work or service; the menace of a penalty; it is undertaken involuntarily by the victim ➔ simply poor working conditions do not alone constitute forced labour, there must be an element of intention to exploit Criminal law trafficking and smuggling are crimes, it’s not directly protection human right but also the countries The act of trafficking and the exploitation of their labour expose victims to a variety of criminal acts including deprivation of liberty, theft of identity documents, sexual, physical and psychological abuse and blackmail Organized criminal group = a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established by the Convention or Trafficking Protocol An offence is transnational in nature if: in more than one State / in one State but a substantial part of its preparation, planning, directing or control takes place in another State / in one State but involves an organized criminal group that engages in criminal activities in more than one State / in one State but has substantial effects in another State. obtain, directly or indirectly, a financial or other material benefit Internal trafficking : discussion as to whether the Protocol is applicable to internal trafficking since it does not – contrary to the Smuggling Protocol – mention borders in its definition It has however to be taken into consideration that the Protocol is a protocol to the Convention on International Organised Crime and therefore cannot be seen outside the scope of this Convention Victim Centred Criminal Law Approach ICC Statute Article 7 : crime against humanity = acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack ➔ rome status and international criminal law = response to violations of the international humanitarian law assistance and protection of victims of trafficking : In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons - Appropriate housing, - Counselling and information, in particular as regards their legal rights (…) - medical, psychological and material assistance; and - employment, education and training opportunities United Nations Office on Drugs and Crime was established in 1997 : operates in all regions of the world through an extensive network of field offices / relies on voluntary contributions, mainly from Governments, for 90 per cent of its budget