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Agreeing on what exactly are human rights and how they can be used by a person is a subject of debate among scholars, human rights activists, citizens, and governments all over the world. According to the Office of the United Nations High Commissioner for Human Rights (OHCHR): “Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.” What precisely these rights are, how they developed in human history, and whether they can be universally applied are what make the concept of human rights an ongoing discussion.
Although the idea that people have intrinsic rights as human beings can be traced back to ancient times, the process of identification, recognition, legal protection, and internationalization of human rights in their present form began only after the conclusion of World War II (1939–1945) and the establishment of the United Nations (UN) in 1945. The most accepted document in the history of human rights is the Universal Declaration of Human Rights, a document that was drafted by representatives across the world and proclaimed by the UN General Assembly as legally binding on December 10, 1948, in Paris. The document contains 30 different articles, outlining human rights that all people are entitled to and that should be universally protected. In addition to the UN, human rights organizations such as Amnesty International and Human Rights Watch advocate for the protection of these rights, but in the 21st century not all countries have accepted and adopted them.
Despite the problem of defining human rights and establishing their validity in various cultures, human rights became an important part of the conversation on migration and immigration in the 20th and 21st centuries amid massive movements of people worldwide. Migrants are particularly vulnerable to abuse and violation of their human rights because they lack the very systems that recognize and protect these rights. When migrants are in transit or are not in their country of origin, they may be unable or even unwilling to ask for protection from foreign countries. In turn, governments may choose—or not be able—to uphold their obligations of protecting the human rights of these migrants.
The biggest milestone in the history of migrant human rights is the entering into force of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) after it was signed on December 18, 1990. The ICRMW is one of the seven human rights instruments of the UN. Human rights instruments are international documents that contain laws and agreements related to human rights and are used by international institutions in addressing human rights issues and violations. It is also the oldest instrument and the slowest to progress as it was not enforced until July 1, 2003, more than 10 years after it was signed. The slow progress was due to several factors, most important of which was the weak expression of interest among countries in ratifying it.
After World War I (1914–1918), the United States experienced a large influx of migrants, primarily from eastern and southern Europe. The US government sought to restrain the flow through the 1921 and 1924 immigration acts. The passing of these laws in the US Congress was made possible by a nationwide uncertainty over national security generated by the war. These measures led to restricted migration from Europe to the United States but also intensified migration flows from southern Europe to northern Europe.
The 1919 Treaty of Versailles, the peace agreement that officially ended World War I, also created the League of Nations, an intergovernmental organization that aimed to establish diplomatic ties and peaceful mediation between 42 member nations. One of the league’s agencies, the International Labour Organization (ILO), was concerned with the improvement of the living standards of workers around the world. In 1939 the ILO released ILO Convention No. 66 (Convention Concerning Migration for Employment), a document that aimed to strengthen the protection of migrants. The convention, however, was never entered into force—not a single country gave formal consent to it. The League of Nations ultimately proved a failure in its primary purpose, too, preventing world war, as evidenced by the start of World War II. After World War II, the UN was created and the recognition of human rights flourished with the adoption of the Universal Declaration of Human Rights as an important milestone.
The protection given by a nation to a refugee who has fled his or her native country in order to escape harm.
An act by which something is acquired by force or threats.
INTERNATIONAL DETENTION COALITION:
A nonprofit organization and network of more than 250 other nongovernmental organizations that conducts research, reporting, and advocacy work for migrants, asylum seekers, and refugees.
A path of migration that does not follow authorized, legal channels.
The basic principle on which the United Nations’ 1951 Refugee Convention rests, requiring asylum nations not to return or expel refugees to countries in which their lives are in danger, their freedoms might be or have been threatened, or they might be or have been physically harmed.
OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR):
The United Nations agency responsible for overseeing major programs in protecting human rights and implementing international rights agreements.
UNITED NATIONS COMMISSION ON HUMAN RIGHTS:
Thepredecessor of the United Nations Human Rights Council.
UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL:
Oneof the six principal organizations of the United Nations; it serves as an international forum for economic and social issues.
UNITED NATIONS GENERAL ASSEMBLY:
One of the sixprincipal organizations of the United Nations; it is the only body of the organization in which all member nations have equal representation.
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES:
The United Nations agency responsible for working with refugees around the world.
The ILO’s advocacy on protecting the rights of international workers resumed in 1949 when it released ILO Convention No. 97, a revision of ILO Convention No. 66. This move was followed by other provisions in regional treaties across Europe for migrants. The 1955 European Convention on Establishment sought to ensure the protection of migrants, while the 1961 European Social Charter encouraged the equal treatment of all migrant workers in terms of their remuneration, housing benefits, and union memberships.
The impact of these legal instruments was limited to a few countries and specific regions. This created problems for migrants from regions and countries that did not belong to these regional treaties because these migrants did not have any universal human rights instrument to lay claim on. Migrant workers and irregular migrants, or those migrants who did not have necessary authorization or legal documents, became prone to violence and abuse. Such violations continue to be a concern in parts of the world in the 21st century.
Nevertheless, the human rights movement continued to progress in the 1960s. Two important international legal instruments that improved human rights discourse were signed in 1966: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
Although the recognition of human rights increased in the 1960s, public interest on migration also heightened when Canada and the United States lifted restrictions on migrants. In the 1970s improvements in the European economy encouraged Europeans to stay in their own countries, lessening migration from the continent to the United States. With the decrease of migrants from Europe, the United States welcomed new migrants from Asia, Mexico, and the Caribbean. At this time, Australia’s migrant population also increased and diversified after it abandoned its “white Australia” policy, a collective term used to refer to the many historical policies that prevented the immigration of non-Europeans to the country.
In 1972, 28 migrants from Mali died while being smuggled in a truck through the Mont Blanc Tunnel connecting France and Italy. This incident brought the issue of migrant human rights violations to the UN. Kenya insisted that an investigation be conducted by the UN Economic and Social Council. In the same year the ILO began to address labor trafficking and irregular migration, while the UN General Assembly requested the UN Commission on Human Rights (the predecessor of the UN Human Rights Council) to prioritize the discrimination suffered by migrants.
Public concern regarding migration and the rights of migrants arose after the 1973 Arab-Israeli War, which resulted in repercussions to the oil supply and the world economy. Europe began to restrict migrants and the Middle East became a new destination for international laborers, especially from South Asia, Southeast Asia, and Arab countries. While traditional migration channels became more secured for safe use by migrants, new policy restrictions imposed resulted in an increase in irregular migration. As previously noted, irregular migrants experience more human rights abuse than migrants with authorization or documents.
All of these events spurred the UN during the late 1970s to the 1990s to work toward drafting, ratifying, and enacting an international human rights instrument specifically for migrants. It is important to remember that the ICRMW was created with two perspectives in mind, that of human rights advocates and that of people concerned with the economic effects of irregular migration. Nevertheless, the ICRMW contains provisions that can be applied to protecting other classes of migrants, such as irregular migrants or migrants in transit, who have become the primary victims of human rights abuse in the 21st century.
Impacts and Issues
The potential for human rights violations arises the moment migrants leave their territories of origin. Migrants who were forced out of their countries because of necessity instead of free choice are at greater risk of human rights abuse. With limited options, they may have no choice but to travel to areas where their rights are not respected. The following sections present different situations of human rights concerns that migrants may experience throughout their journeys.
A migrant’s right to free movement can be considered to have been violated by countries that erect physical barriers, such as walls or razor-wire fences, that prevent people from crossing borders and seeking asylum, a safe place to live.
Similar interceptions by nations have been done at sea. The 1979 International Convention on Maritime Search and Rescue obliges nations to respond to anyone in distress at sea regardless of nationality or status. Representatives from the UN found that this principle was ignored by the governments of Thailand, Malaysia, and Indonesia in May 2015 when they implemented a pushback policy against irregular migrants. Amnesty International reported in 2015 that a similar disregard of this principle was exhibited by Australia after it executed a turn-back policy that forced migrant boats from Indonesia to return to sea in unsafe conditions. Interceptions such as these are being done at a number of borders across the globe.
Inadequate Conditions of Detention
Migrants are protected from detention by their right to liberty and security, as stated in the 1948 Universal Declaration of Human Rights. This right is crucial for asylum seekers and refugees because of their problematic legal status in a foreign land, which can often result in their detention by authorities for illegal entry. In the norms and principles of international laws such as the 1988 UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the 1989 Convention on the Rights of the Child, detention is only allowed as a measure of last resort, and even when detention is reasonable in some instances, international human rights law guarantees that all migrants are entitled to good treatment and adequate living conditions.
Nevertheless, studies around the world show that detention of migrants is usually an immediate response to government interception. It has become routine and in some cases even mandatory. Detained migrants can find themselves living in poor conditions and being denied access to legal aid or interpretation services that could help them navigate their situation.
In 2014 the UN Support Mission in Libya (UNSMIL) and the UN High Commissioner for Human Rights reported at the 28th Session of the Human Rights Council that detained migrants in Libya were forced to live in overcrowded detention centers with unsanitary conditions, lacking access to adequate health care and sufficient food. UNSMIL also discovered consistent occurrences of other forms of human rights violations such as physical, verbal, and sexual abuse; labor exploitation;, extortion; and the detention of minors. According to the Global Campaign to End Immigration Detention of Children, hundreds of thousands of children are similarly detained around the world every year.
A report by Robyn Sampson and others with the International Detention Coalition found that detention is expensive and places a financial burden on countries that detain migrants. In contrast, when migrants are empowered through alternatives to detention, such as legal assistance and social support, and are allowed to independently move, countries save approximately 70 percent compared to detention and assisted deportation procedures, as was the case in Australia and several countries in the European Union.
Violations of the Principle of Non-refoulement
International law protects migrants from being forced to return to their country of origin when doing so will expose them to serious harm. This is called the principle of non-refoulement. Such expulsions are allowed only after certain requirements recommended by the OHCHR, such as the consideration of migrants’ individual circumstances, the provision of informed consent before proceeding to such expulsions, and the absence of coercion in the deportation process, are met.
A 2012 study, Toward a World Free from Violence, conducted by the UN Secretary-General on Violence against Children, examined the conditions of migrant children whose families were forced to return from Germany to Kosovo. Seventy percent of the children dropped out of school upon return and many were returned to conditions of poverty where access to health care was limited and difficult. Doctors without Borders published a 2013 report on a survey conducted among sub-Saharan African migrants in Morocco. According to the study, 68 percent of the migrants claimed that they had been arrested and expelled since their arrival to Morocco and 80 percent of them claimed that they were expelled more than once. Migrants from Guatemala attempting to enter the United States through Mexico repeatedly made irregular attempts to cross the borders after being deported multiple times. Duncan Wood and his colleagues, the authors of the 2015 study Reflections on Mexico’s Southern Border, disclosed that each attempt cost the equivalent of $7,000 and was done through the help of smugglers.
International human rights laws compel countries to provide police and criminal justice protection to migrants who are victims of violence. Nations are also encouraged to provide professional services to address physical and emotional distress experienced by these migrants. Irregular migrants are vulnerable to violence from many sources including governments.
In 2010 the drug-trafficking cartel known as Los Zetas massacred 72 migrants in Tamaulipas, Mexico, when their families failed to pay ransom. On August 26, 2015, the UNHCR reported that 11 or 12 out of every 1,000 people crossing the Andaman Sea via smuggler boats died because of violence, dehydration, or starvation. The next month, on September 17, 2015, Hungarian security forces assaulted migrants, including children, who were crossing Hungary’s border with Serbia, using water cannons and tear gas to drive them away.
Denial of Access to Health Care
International law guarantees the right of migrants’ access to health care from host countries regardless of their legal status. These rights, however, may not be honored when nations lack the appropriate resources or deliberately refuse to provide medical staff and equipment. This puts migrants at risk as they are often in need of first aid and other immediate health interventions upon arrival to their country of destination or after being rescued or intercepted.
In contrast, there have been positive developments in countries in which health-related rights of migrants are being recognized. For example, in April 2011 the Israeli High Court of Justice declared unconstitutional a rule that permitted the deportation of pregnant migrant workers.
Denial of Access to Employment
To sustain themselves and their families during travel, many migrants are forced to look for sources of income. Nevertheless, they are usually denied access to good employment because of discrimination, restrictions due to their legal status, and lack of support from host countries.
In her 2015 study titled “Complex Migration: A Woman’s Transit Journey through Mexico,” Carla Angulo-Pasel found that many of the migrant women in transit in Mexico worked in the informal sector—domestic work, hospitality, or entertainment—jobs to which they were restricted because of their gender and legal status and in which their labor rights had very limited protection. Similar conclusions were reached by a study of migrant children in Thailand, who worked in jobs with high risks of labor exploitation.
Denial of Access to Shelters
Even when migrants are rescued and are allowed to temporarily settle in a foreign country, human rights violations may still occur as migrants are forced to endure undesirable living conditions. Doctors who diagnosed the diseases of sub-Saharan African migrants living in transit in Morocco in 2013 found out that half of these diseases were caused by or were closely related to the migrants’ being in destitute shelters. Similar circumstances befall countless migrants around the world as they are denied access to humane accommodations. Even though international law guarantees the basic civil, political, economic, social, and cultural rights of all human beings, the rights accorded to migrants often come up short.
In light of all the issues concerning migrant human rights, the UN, other institutions, and concerned groups from civil society continue to advocate for the protection of migrants and the improvement of their living conditions. This is especially important as conflict, climate change, and economic problems in different parts of the world force people to move in the 21st century.