This article has been written by Ms. Rahila Sharif, a Fifth-year student of Vivekanand Education Society’s College of Law, Mumbai.
ABSTRACT:
This article explores the legal considerations surrounding the right to freedom of movement for migrants from conflict areas, emphasizing the intersection of international law, human rights, and humanitarian principles. It delves into the complexities of defining migrants, discussing categories such as migrant workers, non-documented migrant workers, refugees, smuggled persons, stateless persons, and trafficked persons. The focus is on the legal rights and protections afforded to migrants, particularly those escaping armed conflicts, including principles like non-refoulement, refugee and asylum law, temporary protection, humanitarian visas, and adherence to international human rights standards. The article concludes with recommendations for states to uphold principles of non-refoulement, implement humanitarian visas and temporary protection measures, align detention policies with human rights standards, and provide comprehensive support to migrants from conflict areas.
KEYWORDS:
Migrants, conflict areas, freedom of movement, international law, human rights, humanitarian principles, non-refoulement, refugee law, asylum, temporary protection, humanitarian visas, detention policies, access to services, protection, legal considerations.
INTRODUCTION:
The right to freedom of movement, a cornerstone of human rights, stands as a testament to the inherent dignity and autonomy of every individual. This right, which is enshrined in international instruments like the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR), upholds the fundamental idea that people are free to move within their own nation and across international borders. For those who have survived a violent conflict, however, exercising this fundamental human right becomes a difficult legal and humanitarian task.
Migrants from conflict areas navigate a perilous journey, compelled to flee their homes due to violence, persecution, and instability. The interaction between their desire for security and the legal issues pertaining to freedom of movement emphasizes the importance of having a sophisticated grasp of international law. It explores the complex legal environment that controls the flow of migrants out of conflict zones, including international human rights legislation, temporary protection measures, humanitarian visas, non-refoulement principle, and refugee and asylum law.
It is imperative that this issue be addressed because migrants escaping war are people, not just numbers, with rights that should be upheld. It is crucial to strike a careful balance between national security concerns and the international duty to grant shelter to individuals escaping peril as states struggle with the complicated dynamics of migration. The legal issues discussed in the following sections provide a framework for traversing this complex terrain and responding to the predicament of migrants from war zones in a way that is fairer and more compassionate. By unraveling the legal intricacies surrounding their right to freedom of movement, we gain insights into how nations can uphold their commitments to human rights, fostering a global community that respects the dignity and agency of every person, regardless of their place of origin or the hardships they seek to leave behind.
This article explores these legal considerations, shedding light on the complex dynamics at play and advocating for a legal framework that aligns with the fundamental principles of human rights and international cooperation.
WHO IS A MIGRANT?
The term “migrant,” often known as “international migrant,” lacks a precise definition that is accepted by all. Refer to Migration and Human Rights: Enhancing Human Rights-Based Governance of International Migration, Office of the United Nations High Commissioner for Human Rights (OHCHR), 2013. Certain human rights organizations and specialists distinguish between forced and voluntary migration, as well as between internal and external migrants, commonly referred to as internally displaced people. Therefore, individuals who have moved voluntarily within one state in order to improve their circumstances, individuals who were forced to move within one state, individuals who moved voluntarily across a border in order to improve their circumstances, and individuals who were forced to cross a border are the four categories of mobile persons to which international law may apply. According to this guide, migrants are those who choose to cross borders voluntarily or because they were forced to.
A variety of people fall under the category of migrants, such as smuggled migrants, migrant workers, migrants in irregular situations, and victims of human trafficking. An outline of some of the groups of people who fall under the umbrella word “migrant” is provided below. The following classifications come from international agreements or are frequently employed by international institutions.
- Migrant Worker:
A migrant worker is described as “a person who is to be engaged, is engaged, or has been engaged in a wage activity in a State of which he or she is not a national” in Article 1 of the International Convention for the Protection of the Rights of Migrant Workers and Members of their Families (ICRMW). The most extensive treaty pertaining to migrant workers’ rights is the ICRMW, which delineates the economic, social, and cultural rights of migrants in addition to their civil and political rights. While the majority of the ICRMW’s rules apply to all migrant workers—documented and undocumented—as well as their families, several are expressly targeted at irregular, or undocumented, migrants.
Although the ICRMW specifies the minimal rights granted to migrant workers, States are free to broaden the extent of these rights, including those that apply to undocumented immigrants, as the Committee on Migrant Workers (CMW) pointed out. The Committee further declared that parties to the ICRMW shall interpret their duties with respect to migrants in conformity with other international treaties that they have ratified including human rights treaties.
In addition to the ICRMW, a number of other international agreements offer protections for all people who work, including migratory laborers. Particular protection for migrant workers is provided by the ILO Migration for Employment Convention (Revised), 1949 (No. 97), which upholds fundamental rights such the freedom from discrimination and access to healthcare. Workers’ rights to fair working conditions and compensation, the capacity to organize and join trade unions, and access to social security are guaranteed by a number of international human rights treaties as well as the foundational ILO Conventions.
- Non-documented Migrant Worker:
The term “illegal migrant worker,” also known as “non-documented migrant worker,” refers to someone who enters a nation without permission in order to work. The UN General Assembly proposed in 1975 that instead of using terminology like “illegal migrant worker,” UN organizations and agencies adopt the terms non-documented and irregular migrant workers. Non-documented or irregular migrant workers are also referred to by the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families (ICRMW), which defines them as migrants who are not “authorized to enter, to stay, and to engage in a remunerated activity in the State of employment”.
According to the ICRMW, irregular migrant workers are entitled to the same rights as other migrant workers. States are not permitted to deny an irregular migrant worker these rights on the grounds of his irregular status. States must interpret their duties toward undocumented migrant workers in accordance with the international human rights treaties they have ratified, just like they do with authorized or regular migrants. However, the ICRMW strikes a balance between migrant workers’ rights and the State’s ability to control their admission and departure.
Several laws also guard against forced labor, slavery, and the exploitation of migrant laborers. See, for example, the ILO Convention on Migrant Workers (Supplementary Provisions), 1975 (No. 143), which was adopted on June 24, 1975, and went into effect on December 9, 1978, 1120 UNTS 323; the ILO Convention on Forced Labor, 1930 (No. 29), which was adopted on June 28, 1930, and went into effect on May 1, 1932, 39 UNTS 55; the Abolition of Forced Labor Convention, 1957 (No. 105) which was adopted on June 25, 1957, and went into effect on January 17, 1959, 320 UNTS 291; and the International Covenant on Civil and Political Rights, 16 December 1966, 16 January 1976, 999 UNTS 171, art. 8.
- Refugee:
A person who is outside their country of nationality and is unable to or unwilling to do so because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion is considered a refugee under the 1951 Refugee Convention. The rights of refugees and the obligations of States towards them are outlined in the 1951 Refugee Convention, its 1967 Protocol, and other international and regional conventions. The principles of non-refoulement, which prohibit sending people back to situations in which their lives would be in danger, as well as the provision of equitable and effective asylum processes and the protection of fundamental human rights, are among the duties imposed on states.
- Smuggled Person:
Smuggling is defined as the “procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of an individual into a State Party of which the person is not a national or a lifelong resident” in Article 3(a) of the UN Protocol against the Smuggling of Migrants by Land, Sea, and Air. Smuggling necessitates crossing a border and does not need exploitation or coercion, in contrast to human trafficking.
States that have accepted the Protocol are required to protect and aid those who have been trafficked, particularly by upholding their right to life and their freedom from torture and other cruel, inhuman, or degrading treatment or punishment. In compliance with the Vienna Convention on Consular Relations, states must also advise individuals of their right to notify and interact with consular representatives. States must consider whether the lives of migrants are in risk as well as the unique requirements of women and children when granting aid. See United Nations Convention against Transnational Organized Crime Supplementary Protocol against the Smuggling of Migrants by Land, Sea, and Air (approved 15 November 2000, entered into force 28 January 2004), 2241 UNTS 480, art. 16.
- Stateless Person:
“A person who is not considered as a national by any State under the operation of its law” is the definition of a stateless person found in Article 1 of the UN Convention pertaining to the Status of Stateless Persons (Statelessness Convention). The only international agreement that safeguards stateless people’s treatment is the Statelessness Convention. The right to non-discrimination (Article 3), the right to a personal status (Article 12), the right to identity documents (Article 27), the right to travel documents (Article 28), and the right to due process, particularly with regard to expulsion proceedings (Article 31), are among the rights that stateless persons are required to have guaranteed by states parties to the Statelessness Convention. A State may grant “its nationality to a person born in its territory who would otherwise be stateless,” according to the UN Convention on the Reduction of Statelessness. Refer to 989 UNTS 175, art. 1, Convention on the Reduction of Statelessness (adopted 30 August 1961; went into effect 13 December 1975).
- Trafficked Person:
Trafficking in individuals is defined as follows in Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in individuals, Especially Women and Children:
The recruiting, transportation, transfer, harboring, or receiving of individuals through the use of threats, actual or threatened use of force or other forms of coercion, abduction, fraud, deception, abuse of authority or a vulnerable position, or the offering or accepting of payments or benefits in order to obtain the agreement of someone in a position of control over another individual with the intention of exploiting that person.
The Protocol defines exploitation as involving the taking of another person’s organs, forced labor, slavery, or similar activities, among other things. Human trafficking is an illegal activity that affects migrants and internally displaced individuals and can happen both inside and beyond national borders. States that have ratified the Protocol are required to support and shield those who are the victims of human trafficking. States are required under the Protocol to take into account putting policies in place to offer housing, job, education, and training possibilities, medical and psychological support, and legal rights counseling. States parties also have a need to make an effort to guarantee the physical safety of victims of trafficking and to guarantee that victims have access to legal recourse to make up for their harm. If necessary, states must also safeguard the victim’s name and privacy.
RIGHT TO FREEDOM OF MOVEMENT FOR MIGRANTS:
The right to freedom of movement for migrants refers to the fundamental human right that individuals, regardless of their nationality or migration status, have the liberty to move within their own country, travel internationally, and choose their place of residence. This right is recognized and protected by various international human rights instruments, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
POPULATIONS DISPLACED EITHER VOLUNTARILY OR BY FORCE DURING ARMED CONFLICT:
International humanitarian law (IHL), which supplements human rights law, governs the free and coerced movement of populations differently in armed conflict and peacetime. People who have been forcibly displaced or who have chosen to leave an area of armed conflict should not be classified as migrants because they are entitled to international protection under international humanitarian law and cannot be returned to a nation where there is an active conflict. In actuality, migration is rarely the result of a definite voluntary or involuntary (or even coerced) decision; rather, it is typically the result of a confluence of options and restrictions. The best way to conceptualize it is as a continuum with a significant gray area in the middle, ranging from completely voluntary to wholly coerced. Individual persecution may also occur after leaving the nation of origin and traveling along the migration route. Situations where an individual decides to migrate and has time to plan and get ready before leaving are sometimes referred to as voluntary migration. Forced migration is the term used to describe situations in which a population is forcibly relocated over an international boundary due to an emergency and is brought on by an armed conflict, other violent crises, natural disasters, persecution, human trafficking, or other circumstances.
LEGAL CONSIDERATIONS FOR MIGRANTS FROM CONFLICTED AREAS:
Refugee and Asylum Law:
Migrants fleeing conflict often find themselves seeking refuge in foreign lands, compelled by the need for safety and protection. Refugee and asylum law, anchored in the 1951 Refugee Convention and its 1967 Protocol, establishes the criteria for identifying individuals deserving of international protection. These legal instruments recognize refugees as those facing a well-founded fear of persecution based on factors such as race, religion, nationality, membership in a particular social group, or political opinion. The obligation for states not to penalize refugees for their illegal entry or stay underscores the international commitment to providing sanctuary for those escaping conflict.
Non-Refoulement Principle:
At the core of international refugee law lies the principle of non-refoulement, a bulwark against the forced return of individuals to countries where they face persecution or serious harm. This principle, enshrined in various human rights treaties, emphasizes the humanitarian imperative of safeguarding the rights and safety of migrants. Non-refoulement serves as a critical legal mechanism to protect those escaping conflict, ensuring that the principle of asylum is not merely theoretical but has practical, life-saving implications.
Temporary Protection:
Recognizing the transient nature of conflict and the evolving circumstances faced by migrants, some states opt for offering temporary protection instead of formal refugee status. Temporary protection allows individuals to stay in a host country until the situation in their home country stabilizes. This legal measure responds to the dynamic nature of conflicts, providing a flexible approach to safeguarding the rights and well-being of those in need.
Humanitarian Visas:
Humanitarian visas emerge as a legal tool offering a lifeline to migrants from conflict areas. Issued for compassionate reasons, these visas provide a legal pathway for entry and stay, acknowledging the urgent humanitarian needs of individuals facing immediate danger. Humanitarian visas exemplify the intersection of law and compassion, recognizing the unique circumstances of migrants and responding to their plight with urgency and empathy.
International Human Rights Law:
The right to freedom of movement is a fundamental human right protected by various international human rights treaties. Migrants, irrespective of their status, are entitled to basic rights, including the right to liberty and security. Any restrictions on their movement must adhere to international human rights standards, ensuring that dignity and fundamental freedoms are preserved even in the context of migration.
Detention of Migrants:
Detention of migrants, especially those from conflict areas, must adhere to international human rights standards. Detention should be lawful, necessary, and proportionate, with alternatives to detention explored whenever possible. This legal consideration emphasizes the importance of treating migrants with dignity and respect, recognizing that punitive measures may exacerbate the vulnerabilities already faced by those escaping conflict.
Access to Services and Protection:
Migrants from conflict areas have the right to access essential services and protection against discrimination and violence. States are obligated to ensure that their legal frameworks facilitate access to healthcare, education, and social services. This legal consideration underscores the commitment to upholding the inherent dignity of migrants, acknowledging the specific challenges they may face due to the circumstances of conflict.
In navigating the legal considerations for migrants from conflict areas, the intricate web of international law, humanitarian imperatives, and human rights principles collectively forms a comprehensive framework. Each legal aspect contributes to shaping a response that is both just and compassionate, recognizing the inherent rights of individuals who seek solace and safety in the face of conflict. This article explores these legal considerations, shedding light on the complex dynamics at play and advocating for a legal framework that aligns with the fundamental principles of human rights and international cooperation.
RECOMMENDATIONS:
In addressing the legal considerations for migrants from conflict areas, it is recommended that:
- States uphold the principles of non-refoulement and grant refugee status or provide alternative protections to those fleeing conflict.
- Humanitarian visas and temporary protection measures are implemented to address immediate needs and ensure the safety of migrants.
- Detention policies be in line with international human rights standards, promoting alternatives to detention whenever possible.
- States provide comprehensive support, including access to services and protection, recognizing the unique challenges faced by migrants from conflict areas.
CONCLUSION:
Ensuring the right to freedom of movement for migrants from conflict areas requires a comprehensive and rights-based approach. By adhering to international legal principles, states can provide a legal framework that protects the dignity and rights of migrants, acknowledging the exceptional circumstances that drive their movement. Balancing security concerns with humanitarian imperatives is crucial to fostering a just and compassionate response to the challenges faced by migrants from conflict zones, ultimately contributing to a more stable and secure global community.
REFERENCE:
https://international-review.icrc.org/sites/default/files/irrc_99_10.pdf
https://ijrcenter.org/thematic-research-guides/immigration-migrants-rights/
https://www.un.org/en/about-us/universal-declaration-of-human-rights
https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10069&lang=EN
https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/