Human Rights Conventions on Refugees and Migrants, 2010

Download PDF Document

HUMAN RIGHTS CONVENTIONS ON REFUGEES AND MIGRANTS: AN OVERVIEW


Background and Documentation on Human Rights and Refugee Law

1. Introduction to the Convention Relating to the Status of Refugees (Geneva Convention 1951)

This convention was the first international agreement covering the most fundamental aspects of a refugee's life.  It spelled out a set of human rights that should be at the very least equivalent to the freedoms enjoyed by foreign nationals living legally in a given country and in many cases those of citizens of that state.  It recognized the international scope of refugee crises and the necessity of international cooperation in tackling the problem, including burden-sharing among states. As of 1 October 2002, 141 countries had ratified the Refugee Convention.
The development of a body of international law, conventions and guidelines to protect refugees began in the early part of the 20th century under the League of Nations, the predecessor of the United Nations. It culminated on July 28, 1951, when a special UN conference approved the Convention relating to the status of refugees. The Convention clearly defines who a refugee is and what kind of legal protection, other assistance and social rights he or she should receive from states party to the treaty. Equally, it describes a refugee's obligations to host governments and certain categories of persons, such as war criminals, who do not qualify for refugee status.
This first instrument was limited to the protection of mainly European refugees in the aftermath of World War II, but a 1967 Protocol expanded the scope of the Convention as the problem of displacement spread around the world. The original document inspired further regional instruments such as the 1969 Africa Refugee Convention and the 1984 Latin American Cartagena Declaration .

The United Nations High Commissioner for Refugees (UNHCR) was created in 1951 to assist in the international protection of refugees. The organization's primary objective is to ensure that all persons can exercise the right to seek asylum to secure safe refuge in another state, and to return home voluntarily. The UNHCR currently helps more than 21 million people and the Convention , which has proved to be remarkably flexible in rapidly changing times, remains the cornerstone of refugee protection.
Increasingly, the current majority of world conflicts involve disputes between political or ethnic groups within countries rather than wars between countries. Given this trend, the number of persons caught in conflicts within their own countries who are forced to leave their homes is likely to increase.

2. Key Provisions of the 1951 Refugee Convention

For the full text of all international treaties, go to Office of the High Commissioner for Human Rights (OHCHR).
“Article 1. Definition of the term "refugee"
A. For the purposes of the present Convention, the term "refugee“ shall apply to any person who:
(2) As a result of events occurring before 1 January 1951 and owing to 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, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.  

C. This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily reacquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A (I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A (I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Article 31. Refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Article 32. Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Article 33 . Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

Background and Documentation on Human Rights and Migrant workers

1. Introduction to the International Convention on the Protection of the Rights of All Migrant Workers and their Family Members (1990)

The International Convention on the Protection of the Rights of All Migrant Workers and their Family Members breaks new ground by extending the protection for migrant workers and members of their families world-wide. It transcends a simple application of existing human rights legislation to a specific category of individuals.
The Convention advances how the international community conceives of the application of human rights in its provisions for "equality of treatment" between female and male migrant workers, between documented and undocumented workers, and between nationals and non-nationals.

More than 150 million migrants, including migrant workers, refugees, asylum-seekers, permanent immigrants and others, live and work in a country other than that of their birth or citizenship. In all, they represent two percent of the world's population. Persons who qualify as migrant workers under the provisions of the Convention are entitled to enjoy their human rights regardless of their legal status. The Convention reflects an up-to-date understanding of migratory trends as seen from the point of view of both the countries of origin and the host countries of migrant workers and their families.
The Convention recognises the specifically vulnerable lives of migrant workers and the subsequent need to strengthen legal protections in a more comprehensive fashion.  It brings together a number of international norms in a way which responds directly to the needs of migrant workers and the realities that many face on a daily basis.
The Convention seeks to establish a framework for migration management through the promotion of equitable, humane and lawful conditions for international migration.  It inter-alia requires cooperation between states in order to prevent and eliminate illegal movement and employment of migrants in an irregular situation.
The Convention therefore fosters the establishment of a comprehensive system of migration management within a framework of the respect for fundamental human rights.
Overall, the Convention seeks to play a role in the prevention and elimination of the exploitation of all migrant workers and members of their families throughout the entire migration process. In particular, it aspires to put an end to the illegal or clandestine recruitment and trafficking of migrant workers and to discourage the employment of migrant workers in irregular or undocumented situations.

The call for universal ratification by the European member states is supported by a a European Parliament resolution of 24 February 2005 and a European Economic and Social Committee’s opinion of 30 June 2004 (SOC/173). UN Secretary General Kofi Annan emphasized in his speech to the European Parliament in January 2004 the need for the EU to construct its economic migration policy and legislative initiatives on the principles outlined in the Convention.

2. Key Provisions of the Migrant Workers Convention

Part I: Scope and Definitions
Article 1
1. The present Convention is applicable, except as otherwise provided hereafter, to all migrant workers and members of their families without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.
2. The present Convention shall apply during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence.
Article 2
For the purposes of the present Convention:
1. The term "migrant worker" refers to 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.
Article 5
For the purposes of the present Convention, migrant workers and members of their families:
(a) Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party;
(b) Are considered as non-documented or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article.

Part II: Non-discrimination with Respect to Rights
Article 7
States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their 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, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.

Part III: Human Rights of All Migrant Workers and Members of their Families
Article 8
1. Migrant workers and members of their families shall be free to leave any State, including their State of origin. This right shall not be subject to any restrictions except those that are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present part of the Convention.
2. Migrant workers and members of their families shall have the right at any time to enter and remain in their State of origin.

Article 27
With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfil the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties. The competent authorities of the State of origin and the State of employment can at any time establish the necessary arrangements to determine the modalities of application of this norm

Article 30
Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child's stay in the State of employment.

Article 35
Nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation, nor shall it prejudice the measures intended to ensure sound and equitable-conditions for international migration as provided in part VI of the present Convention.”

3. Key Provisions of International and European Human Rights Treaties relating to Refugees and Migrants

For the full text of all international treaties, go to Office of the High Commissioner for Human Rights (OHCHR).
The international legal framework for the protection of human rights of migrants and refugees is very broad. A number of international (and also European) treaties contain provisions that protect the human rights of all human beings, irrespective of citizenship. These include all the human rights treaties adopted by the United Nations, the European Convention on Human Rights adopted by the Council of Europe, as well as the founding document which has served as a matrix for all of these: the Universal Declaration of Human Rights:

Universal Declaration of Human Rights (1948)

"No one shall be subject to arbitrary arrest, detention or exile.... Everyone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and to return to his country.... Everyone has the right to seek and to enjoy in other countries asylum from persecution.... Everyone has the right to a nationality…" (Universal Declaration of Human Rights, Articles 9, 13, 14 and 15)

Convention on the Prevention and Punishment of the Crime of Genocide (1948)

"The ... Parties confirm that genocide ... is a crime under international law which they undertake to prevent and to punish." (Convention on the Prevention and Punishment of the Crime of Genocide, Article 1)

The European Convention on Human Rights (1950)

Article 2: Right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3: Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 5: Right to liberty and security
1.Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

Article 6: Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 8: Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
3.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (European Convention on Human Rights, Articles 2,3,5,6 and 8).”

International Covenant on Civil and Political Rights (ICCPR, 1966)

 "Each State Party ... undertakes to respect and to ensure to all individuals within its territory ... rights ... without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.... Everyone lawfully within the territory of a State shall ... have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own.... No one shall be arbitrarily deprived of the right to enter his own country. An alien lawfully in the territory of a State Party ... may be expelled ... only ... in accordance with law and shall ... be allowed to submit the reasons against his expulsion and to have his case reviewed by ... the competent authority.... All persons shall be equal before the courts and tribunals.... All persons are equal before the law and are entitled without any discrimination to the equal protection of the law...." (ICCPR, Articles 2, 12, 13, 14, and 26)

International Covenant on Economic, Social and Cultural Rights (ICESR, 1966)

"The States Parties ... recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing...; ... recognize the right of everyone to the ... highest attainable standard of physical and mental health...; the right of everyone to education.... Primary education shall be compulsory and available free to all...." (ICESR, Articles 11, 12, and 13)

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (1984) 

"No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." (Convention Against Torture, Article 3)

Convention on the Rights of the Child (1989)

"States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee ... shall ... receive appropriate protection and humanitarian assistance in the enjoyment of ... rights.... States Parties shall provide ... cooperation in ... efforts ... to protect and assist such a child and to trace the parents or other members of the family of any refugee child ... for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child ... deprived of his or her family environment...." (Convention on the Rights of the Child, Articles 22)

4. Protection Mechanisms and Initiatives relevant to Refugees and Migrants

The Global Forum on Migration and Development (GFMD):
The Global Forum on Migration and Development (GFMD)
is a new initiative of the international community to address
the connection between migration and development in
practical and action-oriented ways. It marks the culmination
of more than a decade of international discussion on the
growing importance of these linkages, and the progressive
acknowledgement of the need to address the policy implications
and responses in a multilateral framework.
The GFMD was proposed by the UN Secretary-General
and his Special Representative on International Migration
and Development at the High Level Dialogue on International
Migration and Development (HLD) on 14-15
September 2006 within the framework of the General Assembly
of the United Nations. Its inaugural meeting was
held in Brussels in July 2007 under the chairmanship of
the Government of Belgium. The second meeting of the
Global Forum on Migration and Development was held in
Manila, Philippines in October 2008.
The Manila GFMD revolves around the central theme
»Protecting and Empowering Migrants for Development.
« It foregrounded two further priorities identifi ed
in the initial Brussels survey, namely human rights and
the promotion of regular migration.

Global Migration Group (GMG):
The Global Migration Group (GMG) is an inter-agency
group bringing together heads of agencies to promote
the wider application of all relevant international and
regional instruments and norms relating to migration,
and to encourage the adoption of more coherent, comprehensive
and better coordinated approaches to the issue
of international migration. The GMG is particularly
concerned with improving the overall effectiveness
of its members and other stakeholders in capitalizing
upon the opportunities and responding to the challenges
presented by international migration. The GMG was
established by the United Nations Secretary-General in
early 2006 in response to a recommendation of the Global
Commission on International Migration for the establishment
of a high-level inter-institutional group of
agencies involved in migration-related activities.


International Labour Organization (ILO):
The International Labour Organization is the UN specialized agency which seeks the promotion of social justice and internationally recognized human and labour rights. It was founded in 1919 and is the only surviving keystone provision of the Treaty of Versailles which brought about the League of Nations.  The ILO became the first specialized agency of the UN in 1946.
The ILO formulates international labour standards in the form of Conventions and Recommendations setting minimum standards for basic labour rights: freedom of association, the right to organize, collective bargaining, abolition of forced labour, equality of opportunity and treatment, and other standards regulating conditions across the entire spectrum of work related issues.
It promotes the development of independent employers' and workers' organizations and provides training and advisory services to those organizations. Within the UN system, the ILO has a unique tripartite structure with workers and employers participating as equal partners alongside governments in the functioning of its governing organs

International Organization of Migration (IOM)
:
IOM was founded in 1951 as an intergovernmental organization to resettle European displaced persons, refugees and migrants. It has grown to encompass a variety of migration management throughout the world. It assists governments through:
- rapid humanitarian responses to sudden migration flows,
- post-emergency return and reintegration programmes,
- assistance to migrants on their way to new homes and lives,
- facilitation of labour migration,
- assisted voluntary return to irregular migrants,
- recruitment of highly qualified nationals for return to their countries of origin,
- aid to migrants in distress,
- training and capacity-building of officials,
- measures to counter trafficking in persons,
- migration medical and public health programmes,
- mass information and education on migration
research related to migration management and other services for migrants.

Office of the High Commissioner for Human Rights (OHCHR)
:
The Office of the High Commissioner for Human Rights (OHCHR) is a department of the United Nations Secretariat. It is mandated to promote and protect the full realization and enjoyment by all people of all rights established in the Charter of the United Nations and other international human rights laws and treaties . The mandate includes preventing human rights violations, securing respect for all human rights, promoting international cooperation to protect human rights, coordinating related activities throughout the United Nations, and strengthening and streamlining the United Nations’ operations in the field of human rights. In addition to its mandated responsibilities, the Office leads efforts to integrate a human rights approach within all work carried out by United Nations agencies.

United Nations High Commissioner for Refugees (UNHCR)
: The Office of the United Nations High Commissioner for Refugees was established on December 14, 1950 by the United Nations General Assembly. The agency is mandated to lead and co-ordinate international action on the protection of refugees and to resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, with the possibility to return home voluntarily, integrate locally or to resettle in a third country.
Over more than half a century, the agency has helped an estimated 50 million people restart their lives. Today, a staff of around 6,540 people in 116 countries continues to help 19.2 million persons.

Compiled by: Anne von Oswald, Andrea Schmelz, Netzwerk Migration in Europa e. V., 2010

ORGANISATIONS


MOVIE TIPS


BIBLIOGRAPHY