Immigration & Refugee Law François Crépeau United Nations Special Rapporteur on the Human Rights of Migrants Hans &Tamar Oppenheimer Professor of Public.

Immigration & Refugee Law François Crépeau United Nations Special Rapporteur on the Human Rights of Migrants Hans &Tamar Oppenheimer Professor of Public International Law McGill University McGill 2014

Outline 1. A Constant of Civilisation 2. Territorial Sovereignty Matters 3. Irresponsible Political Discourses 4. Migrants have rights 5. The Rational Human Rights Discourse on Migration Doesn’t Convince 6. Discreet and Tightly Controlled Regional Consultative Processes 7. The Inception of a Universal Dialogue 8. Conclusion: Migration is not an anomaly Crépeau McGill 2014

Section 1 A Constant of Civilisation

A complex phenomenon An economic transfer An economic transfer A development driver A development driver A demographic objective A demographic objective A source of acculturation A source of acculturation An object of political discourse An object of political discourse A security issue/fantasy A security issue/fantasy A challenge to territorial sovereignty A challenge to territorial sovereignty A clandestine phenomenon A clandestine phenomenon An individual and collective enterprise An individual and collective enterprise Crépeau McGill 2014

Migration is not an anomaly We are all migrants We are all migrants Migration is the normal human condition, not an anomaly. Migration is the normal human condition, not an anomaly. Migration is at the heart of many civilisations (Exodus, Odyssey, Hegira), linked to the traditional law of hospitality. Migration is at the heart of many civilisations (Exodus, Odyssey, Hegira), linked to the traditional law of hospitality. Settlement is recent and unstable: rural exodus, pilgrimages, “snowbirds”, seasonal workers, expats, foreign students, retirees Settlement is recent and unstable: rural exodus, pilgrimages, “snowbirds”, seasonal workers, expats, foreign students, retirees 3.1 % of world population : ±214M in 2011. 3.1 % of world population : ±214M in 2011. Migration from poverty and violence towards prosperity and stability is mankind’s history: Migration from poverty and violence towards prosperity and stability is mankind’s history: We can slow it temporarily; We can slow it temporarily; We can’t stop it in the long term; We can’t stop it in the long term; We would do the same in their place: we don’t have the moral highground We would do the same in their place: we don’t have the moral highground Crépeau McGill 2014

Humans Spread Across Globe Hominids Hominids Arose in Africa 2 million years ago Arose in Africa 2 million years ago Migrated throughout Eurasia Migrated throughout Eurasia Homo-Sapiens Homo-Sapiens As a species arose c. 200,000 years ago As a species arose c. 200,000 years ago Arose in East Africa, The Horn of Africa Arose in East Africa, The Horn of Africa Hunter-Gatherer Society Hunter-Gatherer Society Nomads followed game, gathered seeds Nomads followed game, gathered seeds Conduits across Strait of Gibraltar, Sinai Conduits across Strait of Gibraltar, Sinai Southwest Asia reached c. 70,000 BCE Southwest Asia reached c. 70,000 BCE East Asia reached c. 60,000 BCE East Asia reached c. 60,000 BCE Australia reached c. 50,000 BCE Australia reached c. 50,000 BCE Europe reached c. 40,000 BCE Europe reached c. 40,000 BCE North America reached c. 20,000 BCE North America reached c. 20,000 BCE South America reached c. 15,000 to c. 12,000 BCE South America reached c. 15,000 to c. 12,000 BCE All Pacific Islands not reached until c. 1000 CE All Pacific Islands not reached until c. 1000 CE Proof Proof We use DNA, genetic drift, chromosomes, archaeology as proof We use DNA, genetic drift, chromosomes, archaeology as proof We look at languages and linguistics We look at languages and linguistics Crépeau McGill 2014

Genographic Project DNA studies suggest DNA studies suggest All humans come from group of African ancestors who began moving out of Africa about 70,000 years ago All humans come from group of African ancestors who began moving out of Africa about 70,000 years ago Project to chart new knowledge on migratory history of human species through 2014 Project to chart new knowledge on migratory history of human species through 2014 Led by National Geographic and IBM with cutting-edge genetic/computational technologies Led by National Geographic and IBM with cutting-edge genetic/computational technologies Components of project Components of project Gather field research data from indigenous and traditional peoples Gather field research data from indigenous and traditional peoples Invite general public to join Invite general public to join Use proceeds to further field research and support indigenous conservation and revitalization projects Use proceeds to further field research and support indigenous conservation and revitalization projects Project is anonymous, non-medical, non-political, non-profit and non-commercial and all results will be placed in public domain following scientific peer-reviewed publication Project is anonymous, non-medical, non-political, non-profit and non-commercial and all results will be placed in public domain following scientific peer-reviewed publication Crépeau McGill 2014

Multiple Factors “Push Factors`: “Push Factors`: Fleeing from poverty and violence, resulting from global economic and social imbalances Fleeing from poverty and violence, resulting from global economic and social imbalances Individual and collective aspirations: migration is always an individual trajectory in multiple social spaces Individual and collective aspirations: migration is always an individual trajectory in multiple social spaces “Pull Factors” : “Pull Factors” : Economic labour needs Economic labour needs Free movement of goods, services and capital Free movement of goods, services and capital “Golden legend” “Golden legend” Irregular Migration results from: Irregular Migration results from: Unrecognised labour needs in countries of destination Unrecognised labour needs in countries of destination Emigration needs in home countries Emigration needs in home countries Lack of legal avenues to cross borders and strict border controls Lack of legal avenues to cross borders and strict border controls

Push Factors Not enough jobs Not enough jobs Few opportunities Few opportunities "Primitive" conditions "Primitive" conditions War / generalised violence War / generalised violence Political fear Political fear Human rights violations Human rights violations Slavery / Trafficking Slavery / Trafficking Religious oppression Religious oppression Oppression by landlords Oppression by landlords Loss of wealth Loss of wealth Loss of land Loss of land Poor medical care Poor medical care Poor housing Poor housing Poor education Poor education Poor chances of courtship Poor chances of courtship Natural disasters Natural disasters Pollution Pollution Pull Factors Job opportunities (recognised or not) Job opportunities (recognised or not) Better living conditions Better living conditions Political and/or religious freedom Political and/or religious freedom Human rights guarantees Human rights guarantees Access to justice Access to justice Enjoyment Enjoyment Education Education Better medical care Better medical care Security Security Family links Family links Better chances of finding courtship Better chances of finding courtship “Get rich easily” “Get rich easily” Crépeau McGill 2014

Immigration Demand Permanent migration (sometimes) Permanent migration (sometimes)  Highly skilled, skilled, rich Temporary migration (more and more) Temporary migration (more and more)  Low skilled, unskilled  Major trend in past ten years  Labour « flexibility » implies status vulnerability Irregular migration (always) Irregular migration (always)  Competitive sectors with low profit margins  Agriculture, hospitality, domestic, caregivers, construction...  Little sanction of « clandestine employers » For irregular and vulnerable migrants, the precariousness of their status is central to their exploitation: For irregular and vulnerable migrants, the precariousness of their status is central to their exploitation: Creates the fear of being arrested, detained and deported. Creates the fear of being arrested, detained and deported. Creates a « competitive advantage » for the employer Creates a « competitive advantage » for the employer Crépeau McGill 2014

Sociology of Migration Economic factors are main cause Economic factors are main cause Lose of job or job opportunities Lose of job or job opportunities Better pasture, farm land; more pay Better pasture, farm land; more pay Counter-migration Counter-migration Every migration flow generates return migration Every migration flow generates return migration Many people go abroad to work, study temporarily Many people go abroad to work, study temporarily Majority of migrants move short distance Majority of migrants move short distance Urbanization is the most common Urbanization is the most common Moving for a job locally is another Moving for a job locally is another Urbanization Urbanization Migrants moving long distances choose big-city destinations Migrants moving long distances choose big-city destinations Urban residents less migratory than rural residents Urban residents less migratory than rural residents Cities offer too many opportunities and benefits Cities offer too many opportunities and benefits If one immigrates, one tends to go urban to urban not to rural If one immigrates, one tends to go urban to urban not to rural The youth migrate The youth migrate Families less likely to make international moves than young adults Families less likely to make international moves than young adults Rare to see whole family migration Rare to see whole family migration Crépeau McGill 2014

Mapping migration since 1945 Crépeau McGill 2014

Sovereignty v. Human Rights The migrant illustrates the conflict between: Territorial sovereignty paradigm (old, situated) Territorial sovereignty paradigm (old, situated) Host State decides who enters and stays, who is a member of the group (citizens); Host State decides who enters and stays, who is a member of the group (citizens); The foreigner has no rights a priori in the host State, only in the home State (citizenship); The foreigner has no rights a priori in the host State, only in the home State (citizenship); Host State treats the foreigner as it wishes (administrative discretion), under the rule of reciprocity. Host State treats the foreigner as it wishes (administrative discretion), under the rule of reciprocity. Crépeau McGill 2014

Sovereignty v. Human Rights Human rights paradigm (recent, universal) Human rights paradigm (recent, universal) Anyone has inherent rights opposable to any Power; Anyone has inherent rights opposable to any Power; Host State must respect the rights of all, everywhere, at any time; Host State must respect the rights of all, everywhere, at any time; The writers of the international system of HR did not think migrants would use them: States are feeling “trapped” by their international commitments. The writers of the international system of HR did not think migrants would use them: States are feeling “trapped” by their international commitments. Crépeau McGill 2014

Equal Paradigms In democratic domestic law, human rights now prevail over parliamentary sovereignty through constitutional guarantees and an independent judiciary In democratic domestic law, human rights now prevail over parliamentary sovereignty through constitutional guarantees and an independent judiciary In international law, no normative hierarchy has been established and the balance depends on persuasion and events. In international law, no normative hierarchy has been established and the balance depends on persuasion and events. Crépeau McGill 2014

Section 2 Migrants have rights

The international HR regime A complex regime of standards and institutions A complex regime of standards and institutions Universal and regional mechanisms Universal and regional mechanisms National constitutions, NHRIs and judiciary National constitutions, NHRIs and judiciary Vienna Declaration, 1993: « All human rights are universal, indivisible and interdependent and interrelated » Vienna Declaration, 1993: « All human rights are universal, indivisible and interdependent and interrelated » Rights belong to « everyone » Rights belong to « everyone » Crépeau McGill 2014

« Charte des droits de l’homme » « Charte des droits de l’homme » Déclaration universelle des droits de l’homme de 1948 Déclaration universelle des droits de l’homme de 1948 Pacte international relatif aux droits civils et politiques de 1966 Pacte international relatif aux droits civils et politiques de 1966 Pacte international relatif aux droits économiques, sociaux et culturels de 1966 Pacte international relatif aux droits économiques, sociaux et culturels de 1966 Crépeau McGill 2014

Les régimes proches Convention pour la prévention et la répression du crime de génocide, 1948 Convention pour la prévention et la répression du crime de génocide, 1948 Conventions de Genève relatives au droit humanitaire, 1949, et leurs protocoles de 1977 Conventions de Genève relatives au droit humanitaire, 1949, et leurs protocoles de 1977 Convention relative au statut des réfugiés, 1951, et son protocole de 1967 Convention relative au statut des réfugiés, 1951, et son protocole de 1967 Crépeau McGill 2014

Les conventions spécifiques Convention internationale sur l'élimination de toutes les formes de discrimination raciale, 1965 Convention internationale sur l'élimination de toutes les formes de discrimination raciale, 1965 Convention sur l'élimination de toutes les formes de discrimination à l'égard des femmes, 1979 Convention sur l'élimination de toutes les formes de discrimination à l'égard des femmes, 1979 Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants, 1984 Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants, 1984 Convention relative aux droits de l'enfant, 1989 Convention relative aux droits de l'enfant, 1989 Convention internationale sur la protection des droits de tous les travailleurs migrants et des membres de leur famille, 1990 Convention internationale sur la protection des droits de tous les travailleurs migrants et des membres de leur famille, 1990 Convention internationale relative aux droits des personnes handicapées, 2006 Convention internationale relative aux droits des personnes handicapées, 2006 Convention internationale pour la protection de toutes les personnes contre les disparitions forcées, 2007 Convention internationale pour la protection de toutes les personnes contre les disparitions forcées, 2007 Crépeau McGill 2014

Two rights belong to the citizen only International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Article 25: The right to take part in the conduct of public affairs, to vote and to be elected; Article 25: The right to take part in the conduct of public affairs, to vote and to be elected; Article 12 (4): No one shall be arbitrarily deprived of the right to enter his own country. Article 12 (4): No one shall be arbitrarily deprived of the right to enter his own country. Canadian Charter of Rights and Freedoms Canadian Charter of Rights and Freedoms Article 3: Right to vote and be elected; Article 3: Right to vote and be elected; Article 6: Right to enter and remain in Canada; Article 6: Right to enter and remain in Canada; A Canadian exception, article 27: The right to education in the language of the minority. A Canadian exception, article 27: The right to education in the language of the minority. Crépeau McGill 2014

All other rights enjoyed by all International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Article 2(1): “[...] to respect and to ensure to all individuals within its territory and subject to its jurisdiction […] without distinction of any kind […]”. Article 2(1): “[...] to respect and to ensure to all individuals within its territory and subject to its jurisdiction […] without distinction of any kind […]”. Canadian Charter of Rights and Freedom Canadian Charter of Rights and Freedom Article 1: guarantee of rights and freedoms of “everyone”, “subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Article 1: guarantee of rights and freedoms of “everyone”, “subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Crépeau McGill 2014

In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, “everyone” has been interpreted as encompassing “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.” In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, “everyone” has been interpreted as encompassing “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.” A whole chapter of the Immigration Act was declared unconstitutional following the request of an asylum seeker. A whole chapter of the Immigration Act was declared unconstitutional following the request of an asylum seeker. Jeffrey Simpson, a columnist at the Globe and Mail, never got over it! Jeffrey Simpson, a columnist at the Globe and Mail, never got over it! Crépeau McGill 2014

HR for ALL In the international HR system, all migrants have In the international HR system, all migrants have Right to equality and freedom from discrimination Right to equality and freedom from discrimination Freedom of expression, association,... Freedom of expression, association,... Right to an effective remedy Right to an effective remedy Right not to be sent back to torture Right not to be sent back to torture Children’s rights Children’s rights Decent work conditions Decent work conditions Even in a security context: Juge Noël (FC) Even in a security context: Juge Noël (FC) Crépeau McGill 2014

The foreigner has the right to equality International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Articles 2 & 26: “without distinction of any kind, such as […] national or social origin”. Articles 2 & 26: “without distinction of any kind, such as […] national or social origin”. Canadian Charter of Rights and Freedoms Canadian Charter of Rights and Freedoms Article 15: “every individual […] has the right to the equal protection and equal benefit of the law without discrimination […] based on race, national or ethnic origin”. Article 15: “every individual […] has the right to the equal protection and equal benefit of the law without discrimination […] based on race, national or ethnic origin”. The interpretation of this right is difficult and courts tend to avoid complex analysis, and often refer to the saying considering immigration as a privilege. The interpretation of this right is difficult and courts tend to avoid complex analysis, and often refer to the saying considering immigration as a privilege. Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 Regina v. Immigration Officer at Prague Airport, [2004] UKHL 55. Regina v. Immigration Officer at Prague Airport, [2004] UKHL 55. Crépeau McGill 2014

The foreigner has the right to a remedy International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Article 2 (3) a): “any person whose rights or freedoms as herein recognized are violated shall have an effective remedy”. Article 2 (3) a): “any person whose rights or freedoms as herein recognized are violated shall have an effective remedy”. Canadian Charter of Rights and Freedoms Canadian Charter of Rights and Freedoms Article 24: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Article 24: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Crépeau McGill 2014

Almost every de jure appeals of the Immigration and Refugee Protection Act have been replaced by judicial controls, on permission. Almost every de jure appeals of the Immigration and Refugee Protection Act have been replaced by judicial controls, on permission. One still cannot appeal a refugee status determination decision, very often based on facts or credibility, whereas consequences might be more serious than those of a criminal trial. One still cannot appeal a refugee status determination decision, very often based on facts or credibility, whereas consequences might be more serious than those of a criminal trial. Crépeau McGill 2014

The foreigner cannot be send back to persecution or torture Convention relating to the status of refugees (1951) Convention relating to the status of refugees (1951) Article 33(1): Prohibition of “refoulement” ; Article 33(1): Prohibition of “refoulement” ; Article 33(2): Security exception. Article 33(2): Security exception. Convention against Torture (1984) Convention against Torture (1984) Article 3: Prohibition of refoulement of any person where he would be in danger of being subjected to torture; Article 3: Prohibition of refoulement of any person where he would be in danger of being subjected to torture; No exception, even during wartime. No exception, even during wartime. Crépeau McGill 2014

In Europe, deportation to torture is absolutely prohibited: ECHR, Saadi v. Italy, request no. 37201/06, 28 Feb. 2008. In Europe, deportation to torture is absolutely prohibited: ECHR, Saadi v. Italy, request no. 37201/06, 28 Feb. 2008. Canada was horrified of being condemned for “torture”: Khan v. Canada, Communication No. 15/1994: Canada. 18/11/94, CAT/C/13/D/15/1994. Canada was horrified of being condemned for “torture”: Khan v. Canada, Communication No. 15/1994: Canada. 18/11/94, CAT/C/13/D/15/1994. Canada permits deportation to torture in “exceptional cases”: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. Canada permits deportation to torture in “exceptional cases”: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. “Maybe” Canada deports to torture: Dadar v. Canada, Communication No. 258/2004: Canada. 05/12/2005, CAT/C/35/D/258/2004. “Maybe” Canada deports to torture: Dadar v. Canada, Communication No. 258/2004: Canada. 05/12/2005, CAT/C/35/D/258/2004. Crépeau McGill 2014

The foreign child is protected against discrimination Convention on the Rights of the Child (1989) Convention on the Rights of the Child (1989) Article 2(1): “ respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s […] national origin […] or other status” Article 2(1): “ respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s […] national origin […] or other status” Article 2(2): “the child is protected against all forms of discrimination or punishment on the basis of the status […] of the child’s parents” Article 2(2): “the child is protected against all forms of discrimination or punishment on the basis of the status […] of the child’s parents” Article 3: “In all actions concerning children, […] the best interests of the child shall be a primary consideration.” Article 3: “In all actions concerning children, […] the best interests of the child shall be a primary consideration.” Crépeau McGill 2014

In Montreal, as opposed to Toronto, schools’ administrations do not ask for the parents’ immigration documents. In Montreal, as opposed to Toronto, schools’ administrations do not ask for the parents’ immigration documents. In a pediatric hospital of Montreal, the managers asked the medical staff to give undocumented migrant families away to the immigration enforcement agency. In a pediatric hospital of Montreal, the managers asked the medical staff to give undocumented migrant families away to the immigration enforcement agency. Crépeau McGill 2014

The migrant worker has the right to dignity International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) Opened for signature in 1990, entered into force in 2003. Opened for signature in 1990, entered into force in 2003. Not ratified by any of the “Global North” states. Not ratified by any of the “Global North” states. Yet, it very often simply specifies the application of already existing protections contained in other general instruments to migrant workers. Yet, it very often simply specifies the application of already existing protections contained in other general instruments to migrant workers. Its principal “flaw” is to specify the rights of undocumented workers, rights that States do not recognize even if undocumented work is part of economic competitivemess strategies. Its principal “flaw” is to specify the rights of undocumented workers, rights that States do not recognize even if undocumented work is part of economic competitivemess strategies. Crépeau McGill 2014

The migrant has rights even in a securitized context Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350: “Many of the principles of fundamental justice were developed in criminal cases, but their application is not restricted to criminal cases: they apply whenever one of the three protected interests is engaged. Put another way, the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings.” “Many of the principles of fundamental justice were developed in criminal cases, but their application is not restricted to criminal cases: they apply whenever one of the three protected interests is engaged. Put another way, the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings.” “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process […]” “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process […]” Crépeau McGill 2014

In two recent decision related to Mr Harkat’s case (2009 FC 553, 28 May 2009; 2009 FC 659, 23 June 2009), Justice Noël severely rebuked the authorities for unacceptable behaviors: In two recent decision related to Mr Harkat’s case (2009 FC 553, 28 May 2009; 2009 FC 659, 23 June 2009), Justice Noël severely rebuked the authorities for unacceptable behaviors: The Canadian Security Intelligence Service “forgot” to mention that an important source in this case was poorly reliable, when ne cross-examination is possible; The Canadian Security Intelligence Service “forgot” to mention that an important source in this case was poorly reliable, when ne cross-examination is possible; A few weeks later, an early search of Mr Harkat’s premises was found abusively intimidating. A few weeks later, an early search of Mr Harkat’s premises was found abusively intimidating. Justice Noël does not treat the foreigner in a different manner. His “cold anger” with the authorities’ abuses of power is impressive. Justice Noël does not treat the foreigner in a different manner. His “cold anger” with the authorities’ abuses of power is impressive. Crépeau McGill 2014

The judiciary as only defense line In the absence of political mobilisation, Courts are the ultimate defender of migrants’ rights: In the absence of political mobilisation, Courts are the ultimate defender of migrants’ rights: No electoral pressure No electoral pressure Legitimacy based on the logic of law Legitimacy based on the logic of law In many cases, the protection of the rights of vulnerable populations did not come only from governments, but also from tribunals: factory workers, women, aboriginal peoples, minorities, detainees, gays & lesbians, etc. In many cases, the protection of the rights of vulnerable populations did not come only from governments, but also from tribunals: factory workers, women, aboriginal peoples, minorities, detainees, gays & lesbians, etc. Foundational tripod of democracy: Representation – Human Rights – Rule of Law Foundational tripod of democracy: Representation – Human Rights – Rule of Law Crépeau McGill 2014

Section 2 Territorial Sovereignty Matters

Nation State Implies Closure Part of our foreseeable future Part of our foreseeable future Criteria: people, territory, government Criteria: people, territory, government Territorial and Social Closure Territorial and Social Closure Government of population includes identification and exclusion of Outsider, Foreigner, Non-Citizen Government of population includes identification and exclusion of Outsider, Foreigner, Non-Citizen Citizenship is social modus: jus sanguini/soli, multiple citizenship… Citizenship is social modus: jus sanguini/soli, multiple citizenship… Physical separation is territorial modus: border controls, diversification of the concept of border… Physical separation is territorial modus: border controls, diversification of the concept of border… EU shows a way forward EU shows a way forward Crépeau McGill 2014

Migrants Selection Selection of migrants is an attribute of sovereignty Selection of migrants is an attribute of sovereignty Choices are possible: permanent residents, TMW, family members, refugees selected abroad… Choices are possible: permanent residents, TMW, family members, refugees selected abroad… Increasing constraints: nuclear family, refugees and asylum seekers, HR guarantees,... Increasing constraints: nuclear family, refugees and asylum seekers, HR guarantees,... Crépeau McGill 2014

The anti-immigration “arsenal” States have established an arsenal of mechanisms to “fight” irregular migration: States have established an arsenal of mechanisms to “fight” irregular migration: Deterrence measures Deterrence measures Containment measures Containment measures Irregular migration is now part of the global security discourse: Irregular migration is now part of the global security discourse: Domestic security since 1990: Schengen Domestic security since 1990: Schengen International security since 2001 International security since 2001 Crépeau McGill 2014

Deterrent measures Acceleration of asylum processes; Acceleration of asylum processes; Elimination of appeals; Elimination of appeals; Restricted access to work permit; Restricted access to work permit; Reduced legal aid and social safety; Reduced legal aid and social safety; Criminalization of humanitarian aid to irregular migrants; Criminalization of humanitarian aid to irregular migrants; Excessive penalties for migrant smuggling; Excessive penalties for migrant smuggling; Safe third country agreements; Safe third country agreements; Increased detention. Increased detention. Crépeau McGill 2014

Containement measures Visa regimes; Visa regimes; Carrier sanctions; Carrier sanctions; Border agents’ training; Border agents’ training; “International zones” in airports; “International zones” in airports; Interdiction and interception mechanisms abroad; Interdiction and interception mechanisms abroad; Immigration security intelligence; Immigration security intelligence; Exchange between nominative databases; Exchange between nominative databases; Regional economic cooperation conditionality; Regional economic cooperation conditionality; Militarization of borders and seas; Militarization of borders and seas; Externalization of asylum procedures; Externalization of asylum procedures; Rejection of international human rights law. Rejection of international human rights law. Crépeau McGill 2014

Exercising power over irregular migrants Deterrence measures aim at limiting the empowerment of migrants: Deterrence measures aim at limiting the empowerment of migrants: Make life difficult in order to increase subjection. Make life difficult in order to increase subjection. Maintain the vulnerability through the absence of status. Maintain the vulnerability through the absence of status. Preventing “undesirable” migrants to access the legal, social and political tools that could limit the capacity of State authorities to wield a large discretionary power over irregular migrants. Preventing “undesirable” migrants to access the legal, social and political tools that could limit the capacity of State authorities to wield a large discretionary power over irregular migrants. Hope that this vulnerability will deter other candidates to irregular migrantion … but not too much, since the economy needs them. Hope that this vulnerability will deter other candidates to irregular migrantion … but not too much, since the economy needs them. Crépeau McGill 2014

A migrant without dignity Dignity is the capacity to be an agent of one’s destiny, to have the freedom to exercise options regarding one’s life Dignity is the capacity to be an agent of one’s destiny, to have the freedom to exercise options regarding one’s life Respecting the dignity of a person means protecting one’s capacity to make choices for oneself, recognising the individual as a subject (not simply an object) and as a rightsholder Respecting the dignity of a person means protecting one’s capacity to make choices for oneself, recognising the individual as a subject (not simply an object) and as a rightsholder Kant’s categorical imperative Kant’s categorical imperative Sen-Nussbaum’s capability approach to agency Sen-Nussbaum’s capability approach to agency Issue: if the irregular migrant’s dignity is protected, the value of competitive advantage is lost Issue: if the irregular migrant’s dignity is protected, the value of competitive advantage is lost Crépeau McGill 2014

Section 3 Migrant workers’ precariousness is “constructed” Crépeau McGill 2014

Migrant workers’ precariousness is “constructed” Temporary labour migration (regular or not) can be beneficial for all Migrants come because there’s a labour market (underground or regular) for them Migrants come because there’s a labour market (underground or regular) for them The competitiveness of several economic sectors rests on using “cheap labour”: agriculture, construction, hospitality, care- giving, extraction, fisheries… The competitiveness of several economic sectors rests on using “cheap labour”: agriculture, construction, hospitality, care- giving, extraction, fisheries… Crépeau McGill 2014

Migrant workers’ precariousness is “constructed” But policies often create a dangerous employment relationship: migrant workers accept working conditions that residents would refuse: Temporary migrant workers: Kafala, sponsorship Temporary migrant workers: Kafala, sponsorship Irregular migrants employed by “illegal employers”? Irregular migrants employed by “illegal employers”? Exploitation? Trafficking? Exploitation? Trafficking? “Vulnerability” vs. “precariousness” “Vulnerability” vs. “precariousness” Crépeau McGill 2014

Migrant workers’ precariousness is “constructed” Need to empower migrant workers, in order to reduce precarity: Recruitment practices streamlined: debt-free, informed, registered contract Recruitment practices streamlined: debt-free, informed, registered contract Identity and travel documents retained Identity and travel documents retained Residence permit not tied to labour contract or employer Residence permit not tied to labour contract or employer Complaint mechanisms and recourses, without fear of retaliation, detection, detention or deportation Complaint mechanisms and recourses, without fear of retaliation, detection, detention or deportation Bank accounts verified Bank accounts verified Labour inspections focussed on working conditions Labour inspections focussed on working conditions Support for lawyers, NGOs and unions Support for lawyers, NGOs and unions Pathways to citizenship after a nember of years Pathways to citizenship after a nember of years Regularisation for irregular migrant workers who have worked a long time Regularisation for irregular migrant workers who have worked a long time Crépeau McGill 2014

Section 3 Irresponsible Political Discourses Crépeau McGill 2014

No accountability Politicians aren’t accountable for what they say about irregular or vulnerable migrants Politicians aren’t accountable for what they say about irregular or vulnerable migrants They don’t vote: politically insignificant They don’t vote: politically insignificant They don’t complain: legally insignificant They don’t complain: legally insignificant Good discursive scapegoats Good discursive scapegoats No negative political consequences of pointing fingers at migrants and making outrageous claims No negative political consequences of pointing fingers at migrants and making outrageous claims In electoral democracies, there’s no incentive for the executive or legislative powers to protect migrants’ rights In electoral democracies, there’s no incentive for the executive or legislative powers to protect migrants’ rights Actually, there’s electoral pressure to the contrary. Actually, there’s electoral pressure to the contrary. Crépeau McGill 2014

Paradoxical representations One lumps together: One lumps together: Identity, territory, nation, culture, values, civilisation… Identity, territory, nation, culture, values, civilisation… Foreigner, risk, criminality, terrorism, multiculturalism... Foreigner, risk, criminality, terrorism, multiculturalism... Schengen (1990): defines international criminality as including drug trafficking, arms trafficking, terrorism, mafia-type criminality... and irregular migration Schengen (1990): defines international criminality as including drug trafficking, arms trafficking, terrorism, mafia-type criminality... and irregular migration “Liquid”, “fungible” langage : “Liquid”, “fungible” langage : “Flux”, “waves”, “flows”, “tsunami”, “floods”, “trickling”, “containment” “Flux”, “waves”, “flows”, “tsunami”, “floods”, “trickling”, “containment” Images of an undetermination: no individual identity Images of an undetermination: no individual identity Evokes age-old fears: invasions, floods, toxic waste... Evokes age-old fears: invasions, floods, toxic waste... Crépeau McGill 2014

Politicians play on perceived threats Our electoral democratic systems drive politicians to hyberboles that remain unchecked: Our electoral democratic systems drive politicians to hyberboles that remain unchecked: F: “2M immigrants, 2M unemployed” F: “2M immigrants, 2M unemployed” CH: Minarets as nuclear warheads CH: Minarets as nuclear warheads AU: people in the boats could be terrorists AU: people in the boats could be terrorists Security policies disproportionately affect foreigners as terrorism is mentally externalised Security policies disproportionately affect foreigners as terrorism is mentally externalised No alternative policy discourse, due to the absence of any political mobilisation in favour of migrants No alternative policy discourse, due to the absence of any political mobilisation in favour of migrants Crépeau McGill 2014

The agenda of securitising migration “Reappropriation of the border” in the political discourse: “Reappropriation of the border” in the political discourse: Heightened tension around border controls Heightened tension around border controls Alarmist discourse on the threats that lie beyond the border Alarmist discourse on the threats that lie beyond the border “Us & Them”: defending “National Identity”, “Canadian values”, “Britishness” “Us & Them”: defending “National Identity”, “Canadian values”, “Britishness” Maintains precariousness of status for many migrants: pliant workforce Maintains precariousness of status for many migrants: pliant workforce Migration is part of a new international security paradigm, even before 9/11. Migration is part of a new international security paradigm, even before 9/11. Crépeau McGill 2014

The agenda of securitising migration Migration controls are part of the phenomenon of “securitisation of the public space”: water security, communication security, food security, environmental security, energy security, economic security, migration security… Migration controls are part of the phenomenon of “securitisation of the public space”: water security, communication security, food security, environmental security, energy security, economic security, migration security… Many unacceptable measures are justified by security: Many unacceptable measures are justified by security: Exchange of personal data btw immigration security intelligence services. Exchange of personal data btw immigration security intelligence services. Long term detention w/o judicial review. Long term detention w/o judicial review. Many administrative practices are beyond any control by judges, NGOs and medias. Many administrative practices are beyond any control by judges, NGOs and medias. Crépeau McGill 2014

Criminalising a non criminal activity State authorities have increasingly used the language of crime when discussing irregular migration, when in fact: State authorities have increasingly used the language of crime when discussing irregular migration, when in fact: 99,9% of irregular migrants present no security threats 99,9% of irregular migrants present no security threats 9/11 terrorists were not irregular migrants 9/11 terrorists were not irregular migrants Crossing borders without the requested documentation may be in violation of migration or administrative laws, but per se not a crime: Crossing borders without the requested documentation may be in violation of migration or administrative laws, but per se not a crime: Not a crime against persons: no one’s hurt Not a crime against persons: no one’s hurt Not a crime against property: nothing’s stolen or broken Not a crime against property: nothing’s stolen or broken Not a crime against national security Not a crime against national security Smuggling is a direct consequence of the mismatch btw the migration needs and the absence of official channels: Smuggling is a direct consequence of the mismatch btw the migration needs and the absence of official channels: “Nasty business but saves lives” (CCR) “Nasty business but saves lives” (CCR) They’ve always existed : Casablanca! They’ve always existed : Casablanca! Distinguish from human trafficking: low “dangerousness” Distinguish from human trafficking: low “dangerousness” Co-responsibility is never acknowledged Co-responsibility is never acknowledged Crépeau McGill 2014

“Sealing the border” is a fantasy It implies levels of violence incompatible with liberal democracy and rule of law It implies levels of violence incompatible with liberal democracy and rule of law Irregular migrants respond to market demands: Irregular migrants respond to market demands: Huge unrecognised labour market offering jobs at exploitative conditions Huge unrecognised labour market offering jobs at exploitative conditions No migration to countries that do not offer jobs No migration to countries that do not offer jobs All irregular migrants do work: no death from hunger. All irregular migrants do work: no death from hunger. They fulfil essential economic and social functions: agriculture, health services, hotels, domestic work, etc. They fulfil essential economic and social functions: agriculture, health services, hotels, domestic work, etc. This cheap labour enhances the competitiveness of Global North economies This cheap labour enhances the competitiveness of Global North economies Employers are generally not targeted in the fight against illegal employment. Employers are generally not targeted in the fight against illegal employment. Yet, many politicians continue to claim this as their objective. Yet, many politicians continue to claim this as their objective. Crépeau McGill 2014

Political discourse and public debate But the discourse criminalising migrants has political/electoral advantages: But the discourse criminalising migrants has political/electoral advantages: Complexity of migration issues make them unsuitable for media- degradable discourse Complexity of migration issues make them unsuitable for media- degradable discourse Politicians can’t recognise publicly the porousness of democratic borders Politicians can’t recognise publicly the porousness of democratic borders Creating the discourse implies defining the terms of debate: far-right has dominated the policy debate: “good questions” (Laurent Fabius) Creating the discourse implies defining the terms of debate: far-right has dominated the policy debate: “good questions” (Laurent Fabius) Creating anxiety by stressing territorial sovereignty in a nationalist discourse and appearing to offer “reasonable” responses (although they are disconnected from reality) Creating anxiety by stressing territorial sovereignty in a nationalist discourse and appearing to offer “reasonable” responses (although they are disconnected from reality) No “pushback”, as there’s no mobilization from migrants, not in favour of migrants: they are not a constituency. No “pushback”, as there’s no mobilization from migrants, not in favour of migrants: they are not a constituency. The phenomenon of “otherisation” of the foreigner allows for measures that would horrify us if they were applied to our children. The phenomenon of “otherisation” of the foreigner allows for measures that would horrify us if they were applied to our children. Crépeau McGill 2014

Root causes remain Democratic anti-immigration policies will fail as they don’t address the root causes : Democratic anti-immigration policies will fail as they don’t address the root causes : Global social inequalities Global social inequalities Contradictions of Global North capitalism Contradictions of Global North capitalism Failure of development policies Failure of development policies Migration is in itself a development policy Migration is in itself a development policy Failure to acknowledge and recognise the individual migrant’s agency: one’s ability to imagine and craft a future for oneself and one’s children Failure to acknowledge and recognise the individual migrant’s agency: one’s ability to imagine and craft a future for oneself and one’s children Crépeau McGill 2014

Courts and treaty bodies have taken up the issue National courts defend migrants’ rights National courts defend migrants’ rights CAT and HRCttee are discussing migration issues, when examining either periodic reports, or individual communications. CAT and HRCttee are discussing migration issues, when examining either periodic reports, or individual communications. The ECHR, ECJ and IAHRCom and Court have also been increasing pressure on States in relation to migration issues. The ECHR, ECJ and IAHRCom and Court have also been increasing pressure on States in relation to migration issues. They have raised the awareness about migrants’ rights in international circles. They have raised the awareness about migrants’ rights in international circles. Crépeau McGill 2014 Section 5 The Rational Human Rights Discourse on Migration Doesn’t Convince

Jonathan Haidt’s six moral senses  Care  Fairness  Freedom  Authority  Loyalty  Sanctity  Jonathan Haidt, The Righteous Mind - Why Good People are Divided by Politics and Religion, 2012. Helped me understand why a reasonable human rights discourse could be experienced as irrelevant What follows is a free interpretation by a non-psychologist. Please be indulgent! Crépeau McGill 2014

Emotion generally rules reason We form our moral judgment in a way that resonates with the moral senses we “feel”: we are not as “rational” as we think we are. We form our moral judgment in a way that resonates with the moral senses we “feel”: we are not as “rational” as we think we are. Elephant-Mahout analogy Elephant-Mahout analogy Liberals use the three first moral senses: care, fairness and freedom. Liberals use the three first moral senses: care, fairness and freedom. Conservatives use all six senses. Conservatives use all six senses. This may explain why conservatives are mostly impervious to the human rights discourse on irregular migration. This may explain why conservatives are mostly impervious to the human rights discourse on irregular migration. Crépeau McGill 2014

The Authority Principle States are sovereign and have the authority to decide who enters and who stays on their territory. States are sovereign and have the authority to decide who enters and who stays on their territory. Analogy w. private property, house: front door, back door... Analogy w. private property, house: front door, back door... Not the image of the city, where anyone can come Not the image of the city, where anyone can come  Irregular migrants do not respect the authority of the State. Deep seated fear of lawlessness, of losing out Deep seated fear of lawlessness, of losing out  Temporary migrant workers should be happy with what they are offered: if not, they can go back home. Court judgments in favour of irregular migrants’ rights fuel more anger by appearing to sanction a “criminality” than they convince through the logic of their “rational” human rights reasoning: Court judgments in favour of irregular migrants’ rights fuel more anger by appearing to sanction a “criminality” than they convince through the logic of their “rational” human rights reasoning: Political backlash against “unelected” judges accused of ruling contrary to the moral feelings of the “majority”. Political backlash against “unelected” judges accused of ruling contrary to the moral feelings of the “majority”.  Unsaid: Sovereignty trumps human rights Sovereignty trumps human rights Crépeau McGill 2014

The Loyalty Principle Citizenship implies loyalty: Citizenship implies loyalty: Citizenship oath Citizenship oath Debates on multiple citizenship Debates on multiple citizenship Respect for local values. Respect for local values. It is for the migrant to adapt to the host society, not the reverse: It is for the migrant to adapt to the host society, not the reverse: Demonisation of “multikulti”. Demonisation of “multikulti”. Citizenship presented as a family: Le Pen’s discourse on sisters and cousins Citizenship presented as a family: Le Pen’s discourse on sisters and cousins Only the citizens can be presumed to be loyal: Only the citizens can be presumed to be loyal: Foreigners often presumed to only seek to benefit from welfare Foreigners often presumed to only seek to benefit from welfare Foreigners must show themselves worthy of being admitted in the “private club”. Foreigners must show themselves worthy of being admitted in the “private club”. If not, it is only normal to throw them out. If not, it is only normal to throw them out. “Us & Them” discourse: no feeling of kinship, of human community: hence no feeling of responsibility for such “others”. “Us & Them” discourse: no feeling of kinship, of human community: hence no feeling of responsibility for such “others”.  Unsaid: Human rights are actually citizens’ rights Human rights are actually citizens’ rights Crépeau McGill 2014

The Sanctity Principle However, conservatives and the faith-based organisations which they support are often mobilised in favour of refugees. However, conservatives and the faith-based organisations which they support are often mobilised in favour of refugees. When the sanctity of life and human dignity are at stake, their religious fiber may trigger a feeling of responsibility. When the sanctity of life and human dignity are at stake, their religious fiber may trigger a feeling of responsibility. This is especially true when women and children are victims: the human trafficking and prostitution debate, This is especially true when women and children are victims: the human trafficking and prostitution debate, This is not contradictory with the two previous principles: This is not contradictory with the two previous principles: Protection is based on charity, not rights. Protection is based on charity, not rights. Crépeau McGill 2014

Section 6 Discreet and Tightly Controlled Regional Consultative Processes

History Migration is part of the sovereign jurisdiction (“domaine réservé”): Migration is part of the sovereign jurisdiction (“domaine réservé”): No tradition of multilateral discussions: No tradition of multilateral discussions: States have traditionally rejected any multilateral negotiation on an issue they consider being of purely national interest States have traditionally rejected any multilateral negotiation on an issue they consider being of purely national interest More openness after 9/11: still reticent More openness after 9/11: still reticent Bilateral/plurilateral agreements on specific borders Bilateral/plurilateral agreements on specific borders CDN-US Safe Third Country Agreement CDN-US Safe Third Country Agreement Readmission agreements Readmission agreements Many regional cooperation frameworks to control irregular migration Many regional cooperation frameworks to control irregular migration “Private clubs”, controlled by States, discreet or secret on their actions and on the results. “Private clubs”, controlled by States, discreet or secret on their actions and on the results. UE and Mercosur Freedom of Movement areas are exceptions UE and Mercosur Freedom of Movement areas are exceptions Crépeau McGill 2014

Regional Processes History: History: Closure of borders of the Global North following the oil crisis of 1973 Closure of borders of the Global North following the oil crisis of 1973 Increase in asylum claims 1978-1984 Increase in asylum claims 1978-1984 Schengen Convention negotiated 1985-1990 Schengen Convention negotiated 1985-1990 Fifteen regional initiatives at present: Fifteen regional initiatives at present: “to provide an inter-governmental regional migration forum for the exchange of information, experiences and best practices, and overall consultation to promote regional cooperation on migration within the framework of economic and social development for the region” (Puebla Process). “to provide an inter-governmental regional migration forum for the exchange of information, experiences and best practices, and overall consultation to promote regional cooperation on migration within the framework of economic and social development for the region” (Puebla Process). “aimed at developing comprehensive and sustainable systems for orderly migration. Its purpose includes exchanging information and experiences on topics such as: regular and irregular migration, asylum, visa, border management, trafficking in human beings and smuggling of migrants, readmission and return” (Budapest Process) “aimed at developing comprehensive and sustainable systems for orderly migration. Its purpose includes exchanging information and experiences on topics such as: regular and irregular migration, asylum, visa, border management, trafficking in human beings and smuggling of migrants, readmission and return” (Budapest Process) IOM tries to coordinate since 2005 IOM tries to coordinate since 2005 Crépeau McGill 2014

Europe and the Former Soviet Union Inter-Governmental Consultations on Asylum, Refugee and Migration Policies (IGC) (1985) Inter-Governmental Consultations on Asylum, Refugee and Migration Policies (IGC) (1985) North America, Europe, Australia North America, Europe, Australia “informal, non-decision making forum for inter-governmental information exchange and policy debate on all issues of relevance to the management of international migratory flows.” “informal, non-decision making forum for inter-governmental information exchange and policy debate on all issues of relevance to the management of international migratory flows.” Private website: for member states’ officials only Private website: for member states’ officials only Budapest Process (1991): Budapest Process (1991): 49 States of Europe + Central Asia + 6 Silk Route countries + 7 observers + 16 IGOs (ICMPD sec.) 49 States of Europe + Central Asia + 6 Silk Route countries + 7 observers + 16 IGOs (ICMPD sec.) Priorities: 1) prevention and fight against irregular migration, 2) return and readmission and 3) asylum: in Eastern Europe & Central Asia Priorities: 1) prevention and fight against irregular migration, 2) return and readmission and 3) asylum: in Eastern Europe & Central Asia Söderköping Process (Cross-Border Cooperation Process) (2001) Söderköping Process (Cross-Border Cooperation Process) (2001) 14 States + 3 IGOs + NGOs (+ Sweden sec.) 14 States + 3 IGOs + NGOs (+ Sweden sec.) Central & Eastern Europe Central & Eastern Europe CIS Conference (1996-2005) CIS Conference (1996-2005) Crépeau McGill 2014

Americas and the Carribean Puebla Process (Regional Conference on Migration) (1996) Puebla Process (Regional Conference on Migration) (1996) 11 States + 5 observers + 8 IGOS (IOM sec.) 11 States + 5 observers + 8 IGOS (IOM sec.) Regional cooperation on migration Regional cooperation on migration South American Conference on Migration (Lima Declaration Process a/k/a South American Meeting on Migration, Integration and Development) (1999) South American Conference on Migration (Lima Declaration Process a/k/a South American Meeting on Migration, Integration and Development) (1999) 12 States + 8 observers + 6 IGOs (IOM sec.) 12 States + 8 observers + 6 IGOs (IOM sec.) Development; diasporas; rights of migrants; integration; information exchange; migration statistics; and trafficking and smuggling Development; diasporas; rights of migrants; integration; information exchange; migration statistics; and trafficking and smuggling Crépeau McGill 2014

Western Mediterranean Dialogue on Mediterranean Transit Migration (MTM) (2003) Dialogue on Mediterranean Transit Migration (MTM) (2003) 37 States (including all EU) (ICMPD sec.) 37 States (including all EU) (ICMPD sec.) “aiming to build common understandings and to jointly develop evidence-based comprehensive and sustainable migration management systems”. “aiming to build common understandings and to jointly develop evidence-based comprehensive and sustainable migration management systems”. 5 + 5 Dialogue on Migration in the Western Mediterranean (2002) 5 + 5 Dialogue on Migration in the Western Mediterranean (2002) 10 States + 3 IGOs (IOM sec.) 10 States + 3 IGOs (IOM sec.) “forward-looking agenda on information exchange, joint management of international borders, agreed forms of labour migration, migration for development, and protection of the rights of migrants” “forward-looking agenda on information exchange, joint management of international borders, agreed forms of labour migration, migration for development, and protection of the rights of migrants” Crépeau McGill 2014

Africa Inter-governmental Authority on Development - Regional Consultative Process on Migration (IGAD-RCP) (2008) Inter-governmental Authority on Development - Regional Consultative Process on Migration (IGAD-RCP) (2008) 6 States of East Africa + 15 + 5 IGOs 6 States of East Africa + 15 + 5 IGOs “promote the common position of IGAD Member States and African Union as provided in the AU's Migration Policy Framework and facilitate regional dialogue and co-operation in migration management” “promote the common position of IGAD Member States and African Union as provided in the AU's Migration Policy Framework and facilitate regional dialogue and co-operation in migration management” Migration Dialogue for Southern Africa (MIDSA) (2000) Migration Dialogue for Southern Africa (MIDSA) (2000) 15 States of Southern Africa + 9 observers + IGOs + UN + NGOs (IOM Sec.) 15 States of Southern Africa + 9 observers + IGOs + UN + NGOs (IOM Sec.) “MIDSA workshops bring together senior government officials from SADC countries to discuss and agree upon migration-related issues of regional concern”. “MIDSA workshops bring together senior government officials from SADC countries to discuss and agree upon migration-related issues of regional concern”. Migration Dialogue for West Africa (MIDWA or Dakar Follow-up) (2001) Migration Dialogue for West Africa (MIDWA or Dakar Follow-up) (2001) 15 States of West Africa + 10 IGOs (IOM Sec.) 15 States of West Africa + 10 IGOs (IOM Sec.) Border management, data collection, labour migration, irregular migration, development, remittances, migrants' rights, trafficking and smuggling, return and reintegration Border management, data collection, labour migration, irregular migration, development, remittances, migrants' rights, trafficking and smuggling, return and reintegration Crépeau McGill 2014

Asia & Oceania Ministerial Consultations on Overseas Employment and Contractual Labour for Countries of Origin and Destination in Asia (Abu-Dhabi Dialogue) (2008) Ministerial Consultations on Overseas Employment and Contractual Labour for Countries of Origin and Destination in Asia (Abu-Dhabi Dialogue) (2008) 11 Colombo Process countries of origin + 9 Asian destination countries + 7 observers + EU 11 Colombo Process countries of origin + 9 Asian destination countries + 7 observers + EU Developing and sharing knowledge on labour market trends, skills profiles, workers and remittances policies and flows; building capacity for more effective matching of labour supply and demand; preventing illegal recruitment; promoting welfare and protection measures for contractual workers; developing comprehensive approach to managing the entire cycle of temporary contractual work that fosters the mutual interest of countries of origin and destination. Developing and sharing knowledge on labour market trends, skills profiles, workers and remittances policies and flows; building capacity for more effective matching of labour supply and demand; preventing illegal recruitment; promoting welfare and protection measures for contractual workers; developing comprehensive approach to managing the entire cycle of temporary contractual work that fosters the mutual interest of countries of origin and destination. IOM Regional Seminar on Irregular Migration and Migrant Trafficking in East and South-East Asia (Manila Process) (1996-2011) IOM Regional Seminar on Irregular Migration and Migrant Trafficking in East and South-East Asia (Manila Process) (1996-2011) 16 States + IOM 16 States + IOM Irregular migration and trafficking; root causes of regular and irregular migration; return and reintegration; entry/border control; remittances; migrants' rights; capacity building; information sharing Irregular migration and trafficking; root causes of regular and irregular migration; return and reintegration; entry/border control; remittances; migrants' rights; capacity building; information sharing Crépeau McGill 2014

Asia & Oceania Inter-Governmental Asia-Pacific Consultations on Refugees, Displaced Persons and Migrants (APC) (1996) Inter-Governmental Asia-Pacific Consultations on Refugees, Displaced Persons and Migrants (APC) (1996) 34 States + 2 IGOs (IOM+UNHCR) 34 States + 2 IGOs (IOM+UNHCR) Nature, causes and consequences; data collection and information-sharing; prevention and preparedness; reintegration and its sustainability; comprehensive and durable solutions to refugee situations; trafficking in women and children; illegal immigrants/workers; people smuggling and irregular migration; emergency response and contingency planning Nature, causes and consequences; data collection and information-sharing; prevention and preparedness; reintegration and its sustainability; comprehensive and durable solutions to refugee situations; trafficking in women and children; illegal immigrants/workers; people smuggling and irregular migration; emergency response and contingency planning Bali Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Conference/Process) (2002) Bali Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Conference/Process) (2002) 43 A+P States + 18 Global North partner States + 16 IGOs & NGOs 43 A+P States + 18 Global North partner States + 16 IGOs & NGOs Cooperation on : information and intelligence sharing; regional law enforcement agencies; border and visa systems to detect and prevent illegal movements; increased public awareness in order to discourage; return as a strategy to deter people smuggling and trafficking; cooperation in verifying the identity and nationality; legislation to criminalise people smuggling and trafficking in persons; protection and assistance to victims of trafficking; opportunities for legal migration; best practices in asylum management. Cooperation on : information and intelligence sharing; regional law enforcement agencies; border and visa systems to detect and prevent illegal movements; increased public awareness in order to discourage; return as a strategy to deter people smuggling and trafficking; cooperation in verifying the identity and nationality; legislation to criminalise people smuggling and trafficking in persons; protection and assistance to victims of trafficking; opportunities for legal migration; best practices in asylum management. Crépeau McGill 2014

Asia & Oceania Ministerial Consultations on Overseas Employment and Contractual Labour for Countries of Origin in Asia (Colombo Process) (2003) Ministerial Consultations on Overseas Employment and Contractual Labour for Countries of Origin in Asia (Colombo Process) (2003) 11 Asian States + 8 countries of destination + 7 IGOs + DIFID (IOM sec.) 11 Asian States + 8 countries of destination + 7 IGOs + DIFID (IOM sec.) Protection of and provision of services to migrant workers; development of new overseas employment markets, increasing remittance flows through formal channels and enhancing the development impact of remittances; capacity building, data collection and inter-state cooperation. Protection of and provision of services to migrant workers; development of new overseas employment markets, increasing remittance flows through formal channels and enhancing the development impact of remittances; capacity building, data collection and inter-state cooperation. Crépeau McGill 2014

IOM’s Role States only want to discuss with IGOs that are susceptible to help them reaching their goals: States only want to discuss with IGOs that are susceptible to help them reaching their goals: IOM, ICMPD IOM, ICMPD UNHCR is unavoidable for refugees UNHCR is unavoidable for refugees IOM tries to establish a coordination since 2005: IOM tries to establish a coordination since 2005: Global RCP Meetings: 2005, 2009, 2011 Global RCP Meetings: 2005, 2009, 2011 Site web: http://www.iom.int/jahia/Jahia/policy- research/regional-consultative-processes/about-rcps Site web: http://www.iom.int/jahia/Jahia/policy- research/regional-consultative-processes/about-rcpshttp://www.iom.int/jahia/Jahia/policy- research/regional-consultative-processes/about-rcpshttp://www.iom.int/jahia/Jahia/policy- research/regional-consultative-processes/about-rcps Crépeau McGill 2014

Evaluation of RCPs The discretion State observe on this cooperation reflects the administrative discretion that States try to jealously preserve in migration issues. The discretion State observe on this cooperation reflects the administrative discretion that States try to jealously preserve in migration issues. The choice of institutional partners shows a clear choice to avoid debating with The choice of institutional partners shows a clear choice to avoid debating with Civil society Civil society On migrants’ rights On migrants’ rights Evaluation of RCPs is sketchy: Evaluation of RCPs is sketchy: Cooperation is optimal if partners are few, have clear objectives (essentially on technical cooperation) and show political resolve. Cooperation is optimal if partners are few, have clear objectives (essentially on technical cooperation) and show political resolve. Too big operations are “talk shops”. Too big operations are “talk shops”. Migrants’ human rights are rarely a priority Migrants’ human rights are rarely a priority Crépeau McGill 2014

Section 7 The Inception of a Universal Dialogue Crépeau McGill 2014

No tradition Migration is part of sovereign jurisdiction of States Migration is part of sovereign jurisdiction of States No tradition of multilateral discussion No tradition of multilateral discussion At best, bilateral agreements At best, bilateral agreements UNGA 1988: first resolution on domestic workers UNGA 1988: first resolution on domestic workers 1990: International Convention on the Rights of all Migrant Workers and their Families. 1990: International Convention on the Rights of all Migrant Workers and their Families. Came into force in 2003 Came into force in 2003 45 ratifications today 45 ratifications today “G77 Convention”: No participation from any country of the Global North “G77 Convention”: No participation from any country of the Global North Crépeau McGill 2014

Reticent (United) Nations States don’t want the UN to take over the issue States don’t want the UN to take over the issue 9/11: window of opportunity for multilateral dialogue 9/11: window of opportunity for multilateral dialogue UE: progressive communitisation of migration issues UE: progressive communitisation of migration issues Free movement of persons in Mercosur since 2002 Free movement of persons in Mercosur since 2002 UN: SG initiates debate UN: SG initiates debate UN Population and Development Conference, Cairo 1994 UN Population and Development Conference, Cairo 1994 ILO: Protection of migrant workers ILO: Protection of migrant workers UNHCR: distinguishes refugees and migrants UNHCR: distinguishes refugees and migrants IOM: “travel agency”, but expertise on trafficking IOM: “travel agency”, but expertise on trafficking Crépeau McGill 2014

From governance to “management” Commission on Global Governance, 1995 Commission on Global Governance, 1995 Bimal Ghosh, Managing migration: time for a new international regime?, 1993 Bimal Ghosh, Managing migration: time for a new international regime?, 1993 New International Regime for Orderly Movements of People: NIROMP Project, 1997 New International Regime for Orderly Movements of People: NIROMP Project, 1997 Consensus on new principles: Consensus on new principles: “Balanced approach”: flows “Balanced approach”: flows “Regulated openness”: not closure “Regulated openness”: not closure “Triple win”: migrant, host country, country of origin “Triple win”: migrant, host country, country of origin Importance of non-State actors: IGOs, NGOs Importance of non-State actors: IGOs, NGOs Crépeau McGill 2014

The Special Rapporteur 1999: Creation of the mandate of the UN Special Rapporteur on the Human Rights of Migrants: 1999: Creation of the mandate of the UN Special Rapporteur on the Human Rights of Migrants: (a) Examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of migrants, and particular vulnerability of women, children and undocumented; (b) Request and receive information from all relevant sources, including migrants themselves, on violations of the human rights of migrants and their families; (c) Formulate appropriate recommendations to prevent and remedy violations; (d) Promote the effective application of relevant international law; (e) Recommend actions and measures applicable at the national, regional and international levels to eliminate violations; (f) Take into account a gender perspective, occurrence of multiple discrimination and violence against migrant women; (g) Identify best practices and concrete areas and means for international cooperation; (h) To report regularly to the Council and to the General Assembly. Crépeau McGill 2014

Main function: work on discourse, perceptions and good practices SR reports become a reference: SR reports become a reference: Quoted by other IGOs and NGOs Quoted by other IGOs and NGOs Enrich the debate Enrich the debate Example: CRC DGD September 2012: Preparation of General Observation on “Children on the Move” Example: CRC DGD September 2012: Preparation of General Observation on “Children on the Move” Work on document by UNICEF and OHCHR Work on document by UNICEF and OHCHR Common document with SR Violence against Children and Save the Children Common document with SR Violence against Children and Save the Children The SR can: The SR can: Define a vocabulary Define a vocabulary Define issues Define issues Underline “best practices” Underline “best practices” Objective: transform perceptions Objective: transform perceptions Crépeau McGill 2014

Global Commission on International Migration (GCIM) Created by SG in 2003 Created by SG in 2003 Long consultation of States / stakeholders Long consultation of States / stakeholders 2005 Report not really innovative: 2005 Report not really innovative: Territorial Sovereignty is affirmed Territorial Sovereignty is affirmed Innovative proposals are withdrawn under States’ pressure Innovative proposals are withdrawn under States’ pressure No normative or institutional proposal No normative or institutional proposal Two consequences in 2006: Two consequences in 2006: Creation of Global Migration Group Creation of Global Migration Group High Level Dialogue on Migration and Developement, first UNGA meeting dedicated to migration issues High Level Dialogue on Migration and Developement, first UNGA meeting dedicated to migration issues Crépeau McGill 2014

SRSG + HLD 2006 SRSG on Migration and Development: P. Sutherland SRSG on Migration and Development: P. Sutherland SRSG has SRSG has Written the SG’s 2006 Report on Migration and Development that was presented to 2006 HLD Written the SG’s 2006 Report on Migration and Development that was presented to 2006 HLD Organised the 2006 High Level Dialogue Organised the 2006 High Level Dialogue Been a driving force behind the GFMD since 2007 Been a driving force behind the GFMD since 2007 SRSG prepares the next 2013 HLD SRSG prepares the next 2013 HLD Crépeau McGill 2014

Global Migration Group UN interagency coordination group: UN interagency coordination group: 15 UN agencies + IOM 15 UN agencies + IOM Overcome the reluctance of agencies to debate an issue that is complex and marginal to their mission Overcome the reluctance of agencies to debate an issue that is complex and marginal to their mission Disseminates information on practices Disseminates information on practices Chair changes every 6 months: erratic Chair changes every 6 months: erratic Uneven participation, but some interesting outcomes: Uneven participation, but some interesting outcomes: 2010: Irregular migration 2010: Irregular migration 2011: Migration and Youth 2011: Migration and Youth Reforms under way Reforms under way Crépeau McGill 2014

GFMD: Global Forum on Migration & Development Direct result of 2006 HLD Direct result of 2006 HLD “Government-led, informal, non-binding and voluntary process” “Government-led, informal, non-binding and voluntary process” Structured outside UN: IOM will offer secretariat Structured outside UN: IOM will offer secretariat SRSG was initiator: SRSG was initiator: Initially, no mention of HR + NGOs excluded Initially, no mention of HR + NGOs excluded Today, HR and NGOs are part of the process Today, HR and NGOs are part of the process Themes for 2011 regional meetings: Themes for 2011 regional meetings: trade and labour mobility; trade and labour mobility; recruitment of workers for overseas employment ; recruitment of workers for overseas employment ; care and domestic workers; care and domestic workers; cooperation strategies among states to address irregular migration; cooperation strategies among states to address irregular migration; rural co-development; rural co-development; migration profiles as tools for evidence ‐ based migration policies; migration profiles as tools for evidence ‐ based migration policies; best practices. best practices. Crépeau McGill 2014

HLD 2013 Second UNGA meeting on migration issues Second UNGA meeting on migration issues SRSG is looking for themes and proposals that could mobilise States SRSG is looking for themes and proposals that could mobilise States Wants concrete institutional, normative and programmatic results: deliverables Wants concrete institutional, normative and programmatic results: deliverables We don’t know yet if: We don’t know yet if: There will be an outcome document There will be an outcome document If so, whether it will be creative or not If so, whether it will be creative or not Crépeau McGill 2014

Towards a multilateral dialogue There is some movement at universal level There is some movement at universal level States remain very reluctant States remain very reluctant But sovereignty is slowly eroded But sovereignty is slowly eroded Demonstrated by the speed and modalities of the adoption of the 2011 ILO Convention Concerning Decent Work for Domestic Workers Demonstrated by the speed and modalities of the adoption of the 2011 ILO Convention Concerning Decent Work for Domestic Workers At least, States are discussing their objectives and practices At least, States are discussing their objectives and practices Crépeau McGill 2014

Conclusion. Migration is not an anomaly

Solution 1: Mainstreaming Migrants’ Rights Need to fight the divorce between Need to fight the divorce between the State’s sovereign powers to exclude and the State’s sovereign powers to exclude and our human rights regimes (national, regional, universal) our human rights regimes (national, regional, universal) Migration should be mainstreamed in the larger discourse on human rights and social diversity. Migration should be mainstreamed in the larger discourse on human rights and social diversity. Diversity, multiculturalism, anti-racism and anti-discrimination policies are key tools Diversity, multiculturalism, anti-racism and anti-discrimination policies are key tools Fighting exclusion, discrimination, marginalisation, stigmatisation, racialisation and violence for ALL Fighting exclusion, discrimination, marginalisation, stigmatisation, racialisation and violence for ALL Human rights should be mainstreamed inside national migration policies and international migration cooperation agreements Human rights should be mainstreamed inside national migration policies and international migration cooperation agreements Need to overcome the absence of political mobilisation Need to overcome the absence of political mobilisation Crépeau McGill 2014

Solution 1: Normative Mainstreaming Need for migration policies to be buttressed by all the normative and institutional gains we have made over a century of democratization: Need for migration policies to be buttressed by all the normative and institutional gains we have made over a century of democratization: Reduce administrative discretionary powers Reduce administrative discretionary powers Fight the idea that immigration is only “a privilege” Fight the idea that immigration is only “a privilege” Fight “State of exception” (Agamben) Fight “State of exception” (Agamben) Empower the marginalised to use legal tools: Empower the marginalised to use legal tools: Empowerment will come from effective access to justice Empowerment will come from effective access to justice Without fear of being arrested, detained or deported Without fear of being arrested, detained or deported Democracy = Representation + Human rights + Rule of Law Democracy = Representation + Human rights + Rule of Law Fight populist attacks on the illegitimacy of “unelected judges” faced with majority choices Fight populist attacks on the illegitimacy of “unelected judges” faced with majority choices Crépeau McGill 2014

Solution 1: Institutional Mainstreaming Institutions (courts, administrative tribunals, NHRIs, labour inspectors…) must all mainstream migration in their practice and combat stereotypes: Institutions (courts, administrative tribunals, NHRIs, labour inspectors…) must all mainstream migration in their practice and combat stereotypes: CDPDJQ has embraced migration in 2009 CDPDJQ has embraced migration in 2009 FRA has taken up the issue FRA has taken up the issue Need for well-trained HR-sensitive immigration enforcement corps Need for well-trained HR-sensitive immigration enforcement corps Need to create “firewalls” that allow all migrants, including irregular migrants, to access public services (social rights): Need to create “firewalls” that allow all migrants, including irregular migrants, to access public services (social rights): without fear of being arrested, detained and deported, without fear of being arrested, detained and deported, without civil servants being made auxiliaries of immigration enforcement: police, labour inspectors, health and safety inspectors, school personel, health care providers, etc. without civil servants being made auxiliaries of immigration enforcement: police, labour inspectors, health and safety inspectors, school personel, health care providers, etc. without the information collected by civil servants being accessible to immigration enforcement without the information collected by civil servants being accessible to immigration enforcement Crépeau McGill 2014

Solution 1: International Mainstreaming At regional level, need to develop and interconnect free- movement-of-persons areas: EU, Mercosur, Ecowas… At regional level, need to develop and interconnect free- movement-of-persons areas: EU, Mercosur, Ecowas… At international level, need to mainstream migration and HR in various agendas: At international level, need to mainstream migration and HR in various agendas: Post-2012 Rio+20 sustainable development agenda: “address international migration through international, regional or bilateral cooperation and dialogue, and a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit and destination in promoting and protecting the human rights of all migrants, and avoiding approaches that might aggravate their vulnerability” (outcome document). Post-2012 Rio+20 sustainable development agenda: “address international migration through international, regional or bilateral cooperation and dialogue, and a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit and destination in promoting and protecting the human rights of all migrants, and avoiding approaches that might aggravate their vulnerability” (outcome document). Post HLD 2013 migration & development agenda Post HLD 2013 migration & development agenda Post-2015 sustainable development goals agenda Post-2015 sustainable development goals agenda International cooperation on migration issues should rest on formal commitments, allowing individuals to access justice and accountability mechanisms for all HR violations. International cooperation on migration issues should rest on formal commitments, allowing individuals to access justice and accountability mechanisms for all HR violations. Crépeau McGill 2014

Solution 2: Free Movement The European Union constructed a free movement regime for workers and individuals within its territory. The European Union constructed a free movement regime for workers and individuals within its territory. Long-term integrated conception of the Common Market Long-term integrated conception of the Common Market Control of persons at internal borders is transferred to external borders Control of persons at internal borders is transferred to external borders Successive enlargements. Successive enlargements. Similar experiences in Mercosur, Ecowas: regional needs for free movement of persons Similar experiences in Mercosur, Ecowas: regional needs for free movement of persons Other free trade regimes do not include free movement of persons: NAFTA, Pacific Alliance, ASEAN Other free trade regimes do not include free movement of persons: NAFTA, Pacific Alliance, ASEAN Crépeau McGill 2014

Solution 3: Local Citizenship Migrants should be considered as local citizens, like any person who lives and works in the city: Migrants should be considered as local citizens, like any person who lives and works in the city: They all work and contribute to the economy; They all work and contribute to the economy; Their exploitation contributes to the competitiveness of several sectors of our economy; Their exploitation contributes to the competitiveness of several sectors of our economy; They pay taxes on everything they buy or rent; They pay taxes on everything they buy or rent; The lack of administrative status recognizing their rights is the cause of their vulnerability. The lack of administrative status recognizing their rights is the cause of their vulnerability. To give them a coherent status would help them to better fight against exploitation. To give them a coherent status would help them to better fight against exploitation. Crépeau McGill 2014

Solution 3: Local Citizenship Some contemporary examples: Some contemporary examples: San Francisco: the police does not control the immigration status of citizens in order to be able to enforce its “law & order” agenda (collaboration with the public is key); San Francisco: the police does not control the immigration status of citizens in order to be able to enforce its “law & order” agenda (collaboration with the public is key); Toronto: “don’t ask, don’t tell” policy in schools; Toronto: “don’t ask, don’t tell” policy in schools; Massachusetts: the state issues driver licenses without verification of the immigration status; Massachusetts: the state issues driver licenses without verification of the immigration status; Portugal: irregular migrant children are registered with the ministry of social affairs, to allow them to access schools and hospitals, but a firewall prevents immigration enforcement from accessing this information. Portugal: irregular migrant children are registered with the ministry of social affairs, to allow them to access schools and hospitals, but a firewall prevents immigration enforcement from accessing this information. Paris: 28 health centers for irregular migrants, administered by “Médecins du Monde”. Now one in Montreal. Paris: 28 health centers for irregular migrants, administered by “Médecins du Monde”. Now one in Montreal. Québec: The vaccination campaign against AH1N1 was for everyone, without checks on whether one was part of the public health insurance mechanism. Québec: The vaccination campaign against AH1N1 was for everyone, without checks on whether one was part of the public health insurance mechanism. Local voting rights: six districts of Maryland; two cities of Massachusetts (Amherst and Cambridge); in New York, Chicago and Arlington (VA) for school board elections; in New-Zealand for all elections. Local voting rights: six districts of Maryland; two cities of Massachusetts (Amherst and Cambridge); in New York, Chicago and Arlington (VA) for school board elections; in New-Zealand for all elections. Crépeau McGill 2014

Solution 3: Local Citizenship Another conception of the vulnerable migrant is possible: Another conception of the vulnerable migrant is possible: at the local level, one status for all residents, which gives access to all services. at the local level, one status for all residents, which gives access to all services. Vulnerability is not a fatality, but a social choice Vulnerability is not a fatality, but a social choice Some American States try to limit the local citizenship movement: Arizona, Alabama... Some American States try to limit the local citizenship movement: Arizona, Alabama... As for other marginalised groups in history, the discourse of “Us and Them” must become a discourse of “I and We” As for other marginalised groups in history, the discourse of “Us and Them” must become a discourse of “I and We” Crépeau McGill 2014

No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of they friends's or of thine own were. Any man's death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee. John Donne (1572-1631)

Immigration & Refugee Law François Crépeau United Nations Special Rapporteur on the Human Rights of Migrants Hans &Tamar Oppenheimer Professor of Public.

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Immigration & Refugee Law François Crépeau United Nations Special Rapporteur on the Human Rights of Migrants Hans &Tamar Oppenheimer Professor of Public.

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Presentation on theme: "Immigration & Refugee Law François Crépeau United Nations Special Rapporteur on the Human Rights of Migrants Hans &Tamar Oppenheimer Professor of Public."— Presentation transcript:

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