Human rights of migrants: some comments on the potentialities and limits of existing instruments

Proceedings Chapter

Reference

Human rights of migrants: some comments on the potentialities and limits of existing instruments

HERTIG RANDALL, Maya

Abstract

The present article describes the pluralistic nature of the sources governing human rights and migration, makes some observations on the concept of vulnerability, and highlights a few important gaps within the existing normative framework.

HERTIG RANDALL, Maya. Human rights of migrants: some comments on the potentialities and limits of existing instruments. In: Migrations, droits et obligations des États dans un contexte globalisé / Migrations, state obligations and rights in a globalized context . Genève : 2019. p. 29–44

Available at:

http://archive-ouverte.unige.ch/unige:129749

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Human rights of migrants: some comments on the potentialities and limits of existing instruments

The existing normative framework is a starting point to reflect on the human rights of migrants. To what extent do existing instruments offer adequate protection? What are their potentialities and limits? The preceding contributions in this volume have tackled these questions, focusing on various regimes of international law which are relevant for the protection of migrants’ human rights, namely the 1951 Refugee Convention, on the one hand, and human rights treaties, both universal and regional,² on the other hand. Further instruments, belonging to yet other international regimes, such as those adopted under the auspices of the International Labour Organisation (ILO),³ or the World Trade Organisation (WTO),⁴ also need to be mentioned. Building on the preceding contributions, the present article would like to provide a few comments on three issues that are relevant to discuss the limits of the existing legal framework and the potentialities for improvement. The first section will highlight the pluralistic nature of the sources governing human rights and migration, arguing that the existing architecture raises some challenges for practitioners, whilst opening space for incremental adaptation and improvement. The second section will make a few observations on the concept of vulnerability, which has emerged as a common theme both in the field of human rights law and refugee law. The third

1 Professor of Constitutional Law at the Faculty of Law of the University of Geneva, attorney at Law, LL.M. (Cambridge).

2 For an overview of the existing regional and universal human rights treaties, see e.g. the contributions in Maya Hertig Randall and Michel Hottelier (ed.), Introduction aux droits de l’homme, Geneva, Zurich, Basel (2014), Parts 2 and 3, p. 227 ff.

3 See International Labour Office, International Labour Migration: A Rights-Based Approach, Geneva, 2010.

4 See mainly the General Agreement on Trade in Services (GATS). On GATS and migration, see e.g. Marion Panizzon, ‘Temporary Movement of Workers and Human Rights Protection:

Interfacing the Mode 4 of GATS with Non-Trade Bilateral Migration Agreements’, in American Society of International Law Proceedings (2011), p. 131-138; Caroline Dommen,

‘Migrants’ Human Rights: Could GATS Help?’, Migration Information Source (2005), accessible on https://www.migrationpolicy.org/article/migrants-human-rights- could-gats-help/ (last visited 11 March 2019).

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section will highlight a few important gaps within the existing normative framework, and, most importantly, its implementation on the domestic level.

1. The pluralistic nature of the existing legal framework

The international legal order has evolved into a highly complex system, which is composed of numerous treaties, adopted under the auspices of different international organisations, and belonging to different international regimes. This development has raised concerns about the fragmentation of international law,⁵ viewed as posing a threat to the coherence and the unity of the international legal order. The pluralistic architecture of international law also raises challenges for practitioners active in the field of migration and human rights. They will often find themselves confronted with situations in which different treaties apply prima facie, which requires solid knowledge of the purpose, scope and content of the various instruments, as well as their implementation mechanisms. The 1951 Refugee Convention, for instance, does not provide for an international supervisory mechanism comparable to the complaint mechanisms generally set up by international human rights instruments.⁶ Whilst existing human rights treaties share the common feature of establishing complaint procedures, the latter are far from uniform. By contrast with regional human rights regimes, which provide for a judicial mechanism, enabling human rights courts to decide applications filed by individuals or states in a legally binding way, through judgments, universal human rights treaties establish ‘softer’ complaint mechanisms that are of a quasi-judicial nature. Instead of a court, they establish

5 See the analytical study and the recommendations of the International Law Commission on this subject: ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc A/CN.4/L.682 and Add.1 and Corr. 1. (2006); ILC, Report of the Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law:

Conclusions, UN DOC A/CN.4/L.702 (2006); for academic studies on the fragmentation of international law, see, for instance, Margaret Young (ed.), Regime Interaction in International Law: Facing Fragmentation, Cambridge (2012), and, for a sociological perspective, Andreas Fischer-Lescano, Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’, Michigan Journal of International Law (2004), p. 999–1046.

6 For an overview of the various supervisory mechanisms within international human rights law, see e.g. Barbara Wilson, Mécanismes de protection, in: Hertig Randall and Hottelier, Introduction aux droits de l’homme, p. 73–89.

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a body of independent experts (named ‘Committee’), entrusted with the role to receive complaints (named ‘communications’) and to offer ‘views’, i.e. decisions on the complaints that lack the same legal force as judgments. Differences also exist with respect to the jurisdiction of the various supervisory bodies: the latter ranges from the mandatory jurisdiction of the guardian of the European Convention of Human Rights of 4 November 1950 (ECHR) – the European Court of Human Rights (ECtHR)⁷ – to the optional jurisdiction of the Committees established by universal human rights instruments. Between these two specters is the two-stage procedure provided for under the American Convention on Human Rights of 22 November 1969 (ACHR) and the African Charter on Human and Peoples’ Rights of 27 June 1981 (AChHPR, also known as the Banjul Charter), which establish the mandatory jurisdiction of a non-judicial body, named Commission,⁸ and an optional jurisdiction of a human rights court:⁹ the Inter-American Court of Human Rights (IACtHR) and the African Court for Human and Peoples’ Rights (ACtHPR) are only competent to decide cases examined by the Commission if the defending state has accepted their jurisdiction.¹⁰

Non-refoulement cases are good examples to illustrate the differences between the various international legal regimes and their instruments. Considered part of peremptory norms of international law (ius cogens),¹¹ the principle of non- refoulement is also codified in international instruments pertaining to both

7 See Art. 32 ECHR.

8 The Inter-American Commission on Human Rights and the African Commission on Human and Peoples’ Rights.

9 See Art. 32 ff. ACHR; Art. 44 ff. AChHPR for the Commission, and, for the Court, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights of 10 June 1998.

10 Within the American human rights regime, this is the case for States which have accepted the Court’s jurisdiction pursuant to Art. 62 ACHR, and within the African human rights regime for those which have ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights of 10 June 1998. The system established on the American and the African continent resembles the European human rights system before the entry into force of Protocol n° 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby of 11 May 1994 (entered into force on 11 January 1998), which abolished the European Commission and established the European Court as a permanent institution. By contrast with the European, the American and the African regional human rights regimes, no Court is established under the Arab Charter of Human Rights of 22 May 2004, which only provides for an Arab Human Rights Committee (see Art. 45 of the Charter).

11 See e.g. Jean Allain, ‘The jus cogens nature of non‐refoulement’, International Journal of Refugee Law (2001), p. 533–558.

international refugee law and international human rights law. The scope and the content of the principle varies, however, depending on the source. The scope of the principle of non-refoulement under the 1951 Refugee Convention differs from the protection offered under human rights instruments, significantly, in two ways:

firstly, the protection extends to persons qualifying as refugees, which entails the existence of a well-grounded fear of persecution,¹² a term encompassing a relatively broad array of ill-treatment,¹³ whilst international human rights treaties afford protection on more limited grounds, against torture (in the case of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 26 June 1987 (CAT)¹⁴), and, additionally, against inhuman or degrading treatment or punishment, in the case, for instance of ECHR¹⁵ and the International Covenant on Civil and Political Rights of 16 December 1966 (ICCPR).¹⁶ Secondly, the 1951 Refugee Convention lays down exceptions enabling the state to remove a person despite the risk of persecution he or she faces in the receiving country. By contrast, as it is derived from one of the most fundamental human rights – the prohibition of torture and inhuman or degrading treatment – human rights treaties and bodies have construed the principle of non-refoulement as an absolute right, leaving no room for removal once the risk of the proscribed ill-treatment has been established.¹⁷

As the 1951 Refugee Convention does not provide for an individual complaint procedure, non-refoulement cases in which protection has been denied on the domestic level can only be brought before a human rights body. Taking the example of a case directed against Switzerland, which among the relevant treaties has ratified the ECHR, the CAT and the ICCPR, a complaint could be filed with the regional human rights body, the ECtHR. Of the Committees set up by the CAT (the Committee against Torture, ComAT) and the ICCPR (the

12 See Art. 33 together with Art. 1 of the 1951 Convention.

13 See Art. 1 A par. 2 and Art. 33 of the 1951 Convention.

14 See Art. 3 CAT.

15 See Art. 3 ECHR, from which the principle of non-refoulement is derived (see infra, text accompanying footnote 29).

16 See Art. 7 ICCPR; on the principle of non-refoulement derived from this provision, see Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), 10 March 1992, § 9.

17 For a comparison of the 1951 Refugee Convention, which provides in Art. 33 § 2 for a

‘danger to the security exception’, and human rights treaties, see UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, § 11.

For prominent judgments confirming the absolute nature of the principle of non-refoulement in the context of the fight against terrorism, see e.g. ECtHR, Chahal v. United Kingdom, n° 22414/93 (1996), § 97 and ECtHR (GC), Saadi v. Italy, n° 37201/06 (2008), § 127.

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Human Rights Committee, HRC), only the first is competent to receive a complaint, given that Switzerland has accepted the individual complaint procedure under the CAT but not under the ICCPR.

When different international complaint mechanisms are available (as is the case for non-refoulement cases directed against Switzerland), practitioners need to determine which body (the ECtHR or ComAT) they should turn to. This decision is important, as the various individual complaints mechanisms tend to be mutually exclusive:¹⁸ filing a case with one body generally excludes bringing it simultaneously or subsequently before another body. Practitioners will thus need to assess, based on the characteristics, the procedure and the case law of each supervisory body, which avenue is the most favourable one in the case at hand.

Comparing the chances of success under the ECHR and under CAT, a whole series of factors would need to be considered, some of which will be mentioned by way of example:¹⁹

The deadline to file a complaint. By contrast with the ECHR, which provides for a deadline of six months to file an application with the European Court,²⁰ the CAT does not provide a strict deadline and may thus be useful in cases where the deadline to bring a case under the European Convention was missed.

Interim measures. The chance to be granted interim measures, staying the execution of deportation orders pending international proceedings, is vital for the effectiveness of the protection that the final decision of an international body can offer. In this respect, statistical data suggests that it seems easier to obtain interim measures withholding the execution of a deportation order under the CAT than under the ECHR. Before the Strasbourg Court, the success rate of interim measures in non-refoulement cases is significantly lower than under the CAT.²¹

18 Both the ECHR and the CAT declare requests which have been submitted to another international body for examination inadmissible, see Art. 35 § 2 let. b ECHR and 22 § 4 let.

a CAT.

19 For an in-depth analysis comparing the principle of non-refoulement under the ECHR and under CAT, see Eman Hamdan, The Principle of Non-Refoulement under the ECHR and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Leiden, Boston (2016); Fanny de Weck, Non-Refoulement under the European Convention on Human Rights and the UN Convention against Torture. The Assessment of Individual Complaints by the European Court of Human Rights under Article 3 ECHR and the United Nations Committee against Torture under Article 3 CAT, Leiden, Boston (2016).

20 See Art. 35 § 1 ECHR. Protocol n° 15, which is not yet in force, will reduce the deadline to four months.

21 According to Hamdan (note 19), p. 153 f., the success rate was 77.1% under the CAT and 11.1% under the ECHR for the period from May 2014 to May 2015.

Compliance rate. Effective protection assumes the defending state’s willingness to comply with a final decision finding in favour of the individual contesting his or her removal on human rights grounds. It is thus important to know whether filing a complaint with one body offers a higher chance of compliance than the choice of another body. Comparing the ECHR with the CAT, this entails assessing whether the views of the ComAT offer the same rate of compliance as the legally binding judgments of the ECtHR, which Switzerland generally accepts to implement.

Questions related to risk assessment and proof. Non-refoulement cases protect an individual against the risk of ill-treatment, and thus imply a risk assessment.

For an individual arguing that his or her forcible removal will expose him or her to the risk of torture or other forms of ill-treatment, the necessary threshold required by the supervisory body to consider the risk sufficiently real to warrant protection against removal is of vital importance. The chance of success (deemed lower under the ECHR than under the CAT)²² depend on related issues, including, for instance, questions of the burden of proof, the standard of proof, the type of evidence requested to substantiate the claim, as well as the moment when the evidence needs to be submitted, and the supervisory body’s competence to carry out its own fact-finding.

The scope of the principle of non-refoulement. As already mentioned, the scope of the principle of non-refoulement is broader under the ECHR than under the CAT.²³ The fact that the protection under the CAT is limited to torture, and, unlike the ECHR, does not extend to inhuman and degrading treatment, has been conducive to differences in the case law. For instance, under the CAT, the concept of torture is linked to human conduct and implies under the definition of torture provided in Article 1 of the Convention imputability to the conduct (which can take the form of actions or omissions) of state officials or other persons acting in their official capacity, a requirement which does not exist under the European Convention. As a consequence, the principle of non-refoulement under the ECHR extends to situations where the risk within the receiving state emanates from a general situation of violence, or from private actors, even if the state cannot be accused of explicit or implicit support, or from the fact that the applicant is seriously ill and ‘would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or

22 De Weck (note 19), p. 460.

23 See Hamdan (note 19), p. 339 ff.

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her state of health resulting in intense suffering or to a significant reduction in life expectancy’.²⁴

The protection against the risk of facing the death penalty is another example illustrating the different scope of protection offered under both human rights instruments: unlike the ECtHR’s case law, the ComAT’s concept of non- refoulement does not generally extend to the death penalty,²⁵ nor does it offer protection against de iure and de facto incompressible life-sentences, considered proscribed inhuman treatment by the Strasbourg Court.²⁶

These examples show that each human rights instrument has its specificities.

The series of factors which need to be considered can make it challenging to determine the instrument which offers the best level of protection in an individual case. At the same time, the risk of fragmentation should not be overstated, as the various human rights bodies tend to take into account each other’s case law.²⁷ This practice of explicit or implicit borrowing (which has also been described in terms of ‘judicial dialogue’²⁸) favours convergence. It also offers the advantage of opening space for mutual learning and progress. The seminal Soering judgment, which lay the foundations for the principle of non-refoulement under the ECHR, is an example in point.²⁹ The ECtHR’s bold move to derive protection against the risk of ill treatment in case of forcible removal from the general provision proscribing torture, inhuman and degrading treatment, was, amongst other factors, influenced by the text of the CAT, which is not limited to proscribing torture in general terms but also provides for an explicit non- refoulement guarantee.³⁰ The ECtHR’s judgment in Soering, considering the

24 See ECtHR (GC), Paposhvili v. Belgium, n° 4173810 (2016), § 183.

25 See Hamdan (note 19), p. 81, 95 ff, 341 f.

26 See Hamdan (note 19), 98 ff, 341 f. The ECtHR has however weakened its stance against life sentences, at least as far as the UK is concerned. See its Grand Chamber judgment Hudginson v. United Kingdom, n° 57592/08 (2017).

27 This trend exists both in the case law of the ECtHR and of the CAT; see Hamdan (note 19), p. 359 ff.

28 On the concept of ‘judicial dialogue’ / ‘dialogue des juges’, see e.g. François Lichère, Laurence Potvin-Solis, Arnaud Raynouard (ed), Le Dialogue entre les juges européens et nationaux: incantation ou réalité? Bruxelles (2004); Amrei Müller (ed), with the collaboration of Hege Elisabeth Kjos, Judicial Dialogue and Human Rights, Cambridge (2017);

Christopher McCrudden, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutionals Rights’, Oxford Journal of Legal Studies (2000), p. 499–

532.

29 See ECtHR, Soering v. United Kingdom, n° 14038/88 (1989).

30 See Art. 3 § 1 CAT (‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger

death row phenomenon a form of inhuman and degrading treatment, has in turn inspired both international and domestic case law, even in States which are not members of the ECHR, fueling a judicial dialogue which has favoured the abolitionist cause and extended the reach of non-refoulement to the death penalty in general.³¹

The Soering judgment and the subsequent case law exemplifies the dynamic nature of existing international human rights instruments. Human rights bodies tend to read the open-textured human rights norms in an evolutive manner, updating their interpretation in the light of present day circumstances. Their aim is to ensure that the rights offered under international human rights instruments are not ‘theoretical and illusionary’, but ‘practical and effective’.³² The plurality of human rights instruments and of their guardians is conducive to this process. A progressive reading of human rights instruments also underlies the increasing trend to consider the specific needs of ‘vulnerable groups’, which is highly relevant for migrants.

2. Migration and vulnerability

As mentioned in the previous contributions in the present volume, the concept of vulnerability plays an important role in the work of the UNHCR and of both general and specific human rights treaties. Vulnerability is however a complex concept, which is used in different contexts and in describing different groups of people and different situations. This has led to controversies over the scope and the meaning of vulnerability in the context of migration, as shown in the ECtHR’s famous Grand Chamber judgment M.S.S. v. Belgium and Greece.³³ The majority adopted a broad reading of vulnerability, describing the category of asylum seekers as a whole as a ‘particularly underprivileged and vulnerable population group in need of special protection’,³⁴ a need based, according to the Court, on

‘the existence of a broad consensus at the international and European level […], as evidenced by the Geneva Convention, the remit and the activities of the

of being subjected to torture’) to which the ECtHR referred to in § 88 of the Soering judgment.

31 For a detailed analysis, see Maya Hertig Randall, ‘Der grundrechtliche Dialog der Gerichte in Europa’, Europäische Grundrechte Zeitschrift (2014), p. 5–18, p. 10 ff.

32 See the ECtHR’s famous dictum inaugurated in Airey v. Ireland, n° 6289/73 (1979), § 24:

‘The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.’

33 ECtHR (GC), M.S.S. v. Belgium and Greece, n° 30696/09 (2011).

34 Ibid., § 251.

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UNHCR and the standards set out in the Reception Directive’.³⁵ The separate opinion of Judge Sajó³⁶ challenged the majority’s characterization of asylum seekers as a ‘particularly underprivileged and vulnerable population group’ as overbroad, privileging a narrower conception of vulnerability. According to Sajó, the classification as a vulnerable group is warranted for groups which have been subject to discrimination in the past (for instance based on race, disability or gender) and suffer, ‘due to their adverse social categorization’, from social exclusion.³⁷ Sajó argues that asylum seekers have not been subject to such social classification, stereotyping and prejudice that would warrant considering and treating them as a homogeneous group. In line with the Dublin system, the need for special protection is justified for certain categories of refugees (namely for victims of torture and unaccompanied children) and not for all of them.

A narrower reading of vulnerability, along the lines suggested by Judge Sajó, has prevailed in judgments and decisions subsequent to M.S.S. v. Belgium and Greece, such as the Grand Chamber judgment Tarakhel v. Switzerland.³⁸ The said judgment makes clear that the Court’s broad characterization of asylum seekers as a vulnerable group in M.S.S. v. Belgium and Greece was mainly relevant in the context of the severe and systemic deficiencies in the asylum procedure and the conditions of detention and reception in Greece. In the Italian context, considered less severe, the concept of vulnerability was in practice relevant mainly for subgroups of migrants, such as families with minor children.

Distinguishing the facts from Tarakhel, the Court stressed in a subsequent non- refoulement case that the applicant was ‘unlike the applicants in the case of Tarakhel […] who were a family with six minor children, […] an able young man with no dependents’.³⁹

The ECtHR’s case law on detention of migrants shows that in addition to children and non-accompanied minors, other groups, including pregnant women⁴⁰ and people suffering from a handicap,⁴¹ were considered as particularly vulnerable, a characterization which was important for the outcome of the case, i.e. for the finding of a violation.

35 Ibid., § 251.

36 ECtHR (GC), M.S.S. v. Belgium and Greece, n° 30696/09 (2011), partly concurring and partly dissenting opinion of Judge Sajó.

37 Ibid.

38 ECtHR (GC), Tarakhel v. Switzerland, n° 29217/12 (2014).

39 ECtHR (dec.), A.M.E. v. Netherlands, n° 51428/10 (2015), § 34.

40 ECtHR, Mahmundi and others v. Greece, n° 14902/10 (2012).

41 ECtHR, Asalya v. Turkey, n° 43875/09 (2014).

The ‘vulnerability turn’⁴² in the ECtHR’s case law⁴³ offers the potential to offer a more adequate response to specific individual needs. At the same time, the Court’s reasoning, which distinguishes within the category of migrants between particularly vulnerable groups and ‘non-vulnerable groups’ is not devoid of risk. It entails the danger that the suffering of ‘non-vulnerable groups’ (such as able- bodied young men) is framed as being insufficiently severe. To mention another example: for the ECtHR, detention of children in facilities which are not adapted to their specific needs amounts to a violation of Article 3 ECHR, on the grounds that children are particularly vulnerable and in need of special protection.⁴⁴ By contrast, the detention of the parents is considered compatible with the Convention. Is the Court not turning a blind eye to the suffering of the parents, who find themselves helplessly confronted to the plight of their children?

The Special Rapporteur on the human rights of migrants has pointed out another pitfall of the ‘vulnerability reasoning’: the concept of vulnerability is fraught with the risk that migrants as a category are considered as being inherently weak, whereas they are ‘incredibly resilient and courageous’.⁴⁵ To avoid the risk of stigmatization, it may be preferable to use the term ‘migrants in vulnerable situations’⁴⁶ and to shift the emphasis to the specific contexts in which migrants are particularly exposed to human rights violations.

42 See Laurence Burgorgue-Larsen, ‘La vulnérabilité saisie par la philosophie, la sociologie et le droit. De la nécessité d’un dialogue interdisciplinaire (Postface)’, in: Laurence Burgorgue- Larsen (ed.), La Vulnérabilité saisie par les juges en Europe, Paris (2014), p. 237–243, p. 243. For a recent book with contributions examining vulnerability and human rights from various perspectives, see Aniceto Masferrer, Emilio García-Sánchez (ed), Human Dignity of the Vulnerable in the Age of Rights. Interdisciplinary Perspectives, Dordrecht (2016).

43 For studies exploring the concept of vulnerability in the ECtHR’s case law, see Lourdes Peroni, Alexandra Timmer, ‘Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law’, International Journal of Constitutional Law (2013), p. 1056–1085; Alexandra Timmer, ‘A Quiet Revolution: Vulnerability in the European Court of Human Rights’, in: Martha Fineman, Anna Grear (ed), Vulnerability:

Reflections on a New Ethical Foundation for Law and Politics, Farnham (2013), p. 147–170.

Samantha Besson, ‘La vulnérabilité et la structure des droits de l’homme – L’exemple de la jurisprudence de la Cour européenne des droits de l’homme’, in: Burgorgue-Larsen, La Vulnérabilité saisie par les juges en Europe, p. 59–85.

44 See for instance ECtHR, Popov v. France, n° 39472/07 and 39474/07 (2012); ECtHR, Muskhadzhiyeva and others v. Belgium, n° 41442/07 (2010).

45 See François Crépeau, Report of the Special Rapporteur on the human rights of migrants, 4 August 2016, UN Doc. A/71/285, § 59 f.

46 See UNHCR, ‘Migrants in vulnerable situations’ UNHCR’s perspective, June 2017, accessible via https://www.refworld.org/pdfid/596787174.pdf (last visited 11 March 2019); OHCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations. Report of the United Nations High Commissioner for Human Rights,

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Attempts to identify such situations must take into account that what is perceived as vulnerability is also largely the result of the legal framework itself;

vulnerabilities are in many cases not inherent in the subject but legally constructed,⁴⁷ as the following section on protection gaps will illustrate.

3. Protection gaps

A telling example of how the legal framework constructs vulnerabilities is the legal situation of migrants without residence status. The aspiration of human rights to protect ‘all members of the human family’,⁴⁸ i.e. all humans in virtue of being human,⁴⁹ clashes with the reality that the rights of undocumented migrants often cannot be enforced and exist on paper only. The difficulties migrants without residence status face are well known. How can they effectively denounce inhuman labour conditions, exploitation, harassment, sexual abuse and vindicate their rights under domestic labour law (including the right to a just salary), if turning to the police or taking court action entails the risk that they will be denounced to the immigration authorities and run the danger of deportation?

For this reason, the Special Rapporteur on human rights of migrants, François Crépeau, has recommended the implementation of so-called ‘firewalls’ in his report on labour exploitation of migrants.⁵⁰ ‘Firewalls’ are means which prevent public officials, including the police, labour inspectors, school personnel, courts and national human rights institutions from communicating information about the

26 January 2017, UN Doc. A/HRC/34/31, which defines the concept as follows: ‘The concept of a “migrant in a vulnerable situation” may be understood as a range of factors that are often intersecting, can coexist simultaneously and can influence and exacerbate each other. Situations of vulnerability may change over time as circumstances change or evolve.

The factors that create a vulnerable situation for migrants might be what drives their migration from their countries of origin, occurs in transit and/or is related to a particular aspect of a person’s identity or circumstance. Thus, vulnerability in this context can be understood as situational (external) and/or embodied (internal)’ (§ 12).

47 See OHCHR (note 46), footnote 11; Crépeau (note 45), § 59 f.

48 See the Preamble of the UDHR: ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’ (emphasis added).

49 See for instance James Griffin, ‘Discrepancies between the best philosophical account of Human Rights and the international law of Human Rights’, Proceedings of the Aristotelian Society (2001), p. 1–28, p. 2.

50 François Crépeau, Report of the Special Rapporteur on the human rights of migrants, Labour exploitation of migrants, 3 April 2014, UN Doc. A/HRC/26/35, § 62 and 103.

irregular status of migrants to the immigration enforcement authorities.⁵¹ Without such measures, migrants cannot exercise their human rights effectively, and are deprived of effective remedies to vindicate them. Firewalls are essential for all categories of human rights, civil, economic, social and cultural rights.

Working with students within a clinical teaching program on the rights of women without resident status,⁵² we encountered several examples in the Swiss legal order underscoring the need to establish firewalls so as to prevent the discrepancy between ‘human rights in books’ and ‘human rights in action’. For instance, one of the most basic social rights enshrined in the Swiss Constitution – the right to a minimal level of subsistence⁵³ – protects, according the Swiss Supreme Court’s case law, all human beings, i.e. both nationals and foreigners irrespective of their residence status.⁵⁴ This bold and inclusive reading of the constitutional provision clashes with the reality that undocumented migrants face the risk of deportation if they vindicate this right. The right to a minimal level of subsistence is thus for this category of foreigner ‘theoretical and illusory’ rather than ‘real and effective’.⁵⁵

The Swiss Supreme Court’s case law on the right to a minimal level of subsistence also shows that the Court tends to adopt a formalistic point of view which is often divorced from reality. For asylum seekers whose asylum request has been turned down, the Court admits that their precarious legal status can be taken into account when it comes to defining the concrete entitlements flowing from the right to a minimal level of subsistence.⁵⁶ As this category of migrants is supposed to remain in Switzerland only on a temporary basis, until they can be made to return to their country of origin, the Court holds that no interest in integration exists, and that no permanent social contact needs to guaranteed.⁵⁷ The limited duration of the stay, and the absence of an interest in integrating illegal migrants, coupled with the interest of the state in removing asylum

51 See ibid.

52 The results of the work was published in the form of a booklet accessible under https://www.unige.ch/droit/lawclinic/ (last visited 11 March 2019).

53 See Article 12 of the Swiss Federal Constitution of 18 April 1999; an English version can be found on https://www.admin.ch/opc/en/classified-compilation/19995395/index.html (last visited 11 March 2019).

54 See for instance ATF 121 I 367, p. 374; ATF 131 I 166, p. 172 (the judgments of the Swiss Supreme Court can be accessed via www.bger.ch).

55 This expression is borrowed from the ECtHR’s case law, see supra, note 32.

56 BGE 135 I 119, p. 123.

57 Ibid. The Court also indicates another justification for limiting the benefits of illegal migrants to a bare minimum, referring to the interest in reducing the incentive to remain in Switzerland. This reasoning underscores the tension between the human rights logic and the logic underlying migration policies.

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seekers whose request has been turned down, serves as a justification to reduce the benefits to a very basic minimum. This way of reasoning is formalistic,⁵⁸ as it takes only the residence status into account, and fails to recognize the fact that many asylum seekers cannot be effectively removed and spend a very long time (sometimes more than a decade)⁵⁹ in material living conditions which are incompatible with the purported aim of the right of a minimal level of subsistence:

to guarantee to every human being living conditions in accordance with human dignity. It turns a blind eye to the fact that this approach constructs and reinforces vulnerabilities: laws and policies which make migrants live on the very bare minimum for prolonged periods of time have detrimental effects on the mental health of a group of people who are already disproportionately affected by mental disorders (such as post-traumatic stress disorder).⁶⁰

It is important to highlight that ‘old instruments’ have so far been of limited use in the situations which have been described. As regards undocumented migrant workers, the human rights treaty that is the most relevant – the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 18 December 1990⁶¹ – has not been widely ratified, meeting with strong resistance from the Western states that are the major destinations of undocumented migrants. With respect to social rights protected in ‘old instruments’, such as those protected in the International Covenant on

58 By contrast with the Swiss Federal Tribunal, the German Constitutional Court rejects a formalistic approach in its case law on minimal social benefits for migrants. Firstly, the Court rejects the general assumption that the limited duration of the stay automatically implies that migrants have lesser needs and are thus entitled to lower benefits, holding that the legislature has to establish their actual needs, and is thus required to justify the reduction of benefits. Secondly, the Court notes that a considerable number of migrants remains in Germany for a long period of time despite the lack of a residence status and considers that the benefits need to be adapted to the actual length of the stay. The decisive factor is thus the factual, and not the legal situation (see BVerfGE 132, 134).

59 The Court adopted a less formalistic approach in another judgment, in which it found in favour of a migrant who had remained in Switzerland for over a decade and whose removal was unlikely. Considering these circumstances, the Court derived the right to a work permit from the right to private life (Art. 8 ECHR), holding that the right to a minimal level of subsistence was conceived as a temporary aid and not as a permanent solution. See ATF 138 I 246, p. 252 f.

60 See Patrick Bodenmann, Christophe Pasche, Isabelle Marguerat-Bouché et al.,

‘Durcissement des lois sociales et santé des migrants forcés’, Revue médicale Suisse (2008), p. 2563–2568 (with a critical assessment of the Swiss Supreme Court’s formalistic reasoning).

61 For an overview of this treaty, see Cesla Amarelle, Melanie Studer, ‘La Convention internationale sur la protection des droits de tous les travailleurs migrants et des membres de leur famille’, in: Hertig Randall and Hottelier, Introduction aux droits de l’homme, p. 329–

342.

Economic, Social and Cultural Right of 16 December 1966 (ICESCR), many states deprive them of their effectiveness on the grounds that these rights are not directly applicable and thus cannot be invoked in courts to vindicate specific entitlements.⁶²

In this context, constitutional guarantees, like the right to a minimal level of subsistence enshrined in the Swiss Constitution, fill the void. However, as the Swiss example shows, there is a strong tension between the logic underlying human rights on the one hand, and the rationale underlying migration policies, on the other hand. The aim to make states ‘little attractive’ to migrants and to incite those without residence status to leave the country, pushes aside the human rights logic, which is based on the assumption that human rights are entitlements which belong to every human being.

Respecting human dignity whilst enforcing dissuasive migration policies make strange bedfellows. Realizing both in practice often boils down to attempts to

‘square the circle’. As long as we live in a paradigm of nation state and state sovereignty, the ethos of exclusion and differentiation risks trumping the inclusionary ethos of human rights protection.

In her book International Migration into Europe: from subjects to abjects, Gabriella Lazaridis holds that immigration policies are structured along the following distinctions which are clearly at odds with the human rights logic. They tend to distinguish between the following categories:⁶³

Subjects: those accorded or enjoying full citizenship rights; i.e. citizens;

Les Éjectés: those of a quasi-documented status, such as those who are regularised but do not enjoy full citizenship rights, so can thus ‘slip in and out’; force can be used to enable both escape and eviction;

62 See for instance the case law of the Swiss Supreme Court, for a more detailed analysis, see Maya Hertig Randall, Gregor Chatton, Les droits sociaux en Suisse, in: Lukas Heckendorn Urscheler (ed.), Swiss Reports Presented at the XIXth International Congress of Comparative Law, Zurich, Basle, Geneva (2014), p. 289–348, p. 333 ff; a longer version of the same article was also published, under the title ‘Les droits sociaux fondamentaux dans l’ordre juridique Suisse’, together with other country reports on social rights, in Krzysztof Wojtyczek (ed), Social Rights as Fundamental Rights. XIXth International Congress of Comparative Law / Le IX Congrès international de droit comparé, The Hague (2016), p. 383–477.

63 Gabriella Lazaridis, International Migration into Europe: from subjects to abjects, New York (2015), p. 5; the following enumeration reproduces verbatim Lazaridis’s text.

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Injects: those ‘injected into’ society because they are protected by human rights laws etc., such as asylum seekers when they are granted refugee status;

Abjects: in-limbo, marginalised belongings; those of a degraded, devalued, vulnerable, insecure lower class status, i.e. irregular migrants.

Countering the ethos of exclusion and differentiation which underlines this categorization will remain a challenge for the decades to come. A prominent example of an attempt to deconstruct the vulnerabilities created by domestic legal orders is the Inter-American Court of Human Rights’ advisory opinion n° 18.⁶⁴ The Court was called upon to assess the legal framework in the US which established differential treatment between undocumented migrant workers and other workers in case of unjustified dismissal. Unlike national workers or migrants with a valid residence and work permit, undocumented migrants who were laid off on the grounds that they attempted to create a trade union were not entitled to back pay for work done prior to their dismissal.

The Inter-American Court found that this legal framework was clearly discriminatory and breached the right to equality, which, according to the Court, was a principle forming part of ius cogens.⁶⁵ In reaching its conclusion, the Court stressed the vulnerability of migrants and explored its legal and sociological causes.⁶⁶ It then linked the situation of vulnerability to the need to provide due process: genuine, and not merely formal access to justice is essential to ensure the respect of human rights of migrants. It follows that migrants must have the possibility to enforce their labour rights effectively, and without discrimination, like domestic workers or foreign workers with a regular residence status.⁶⁷ This bold opinion shows the potential of ‘old instruments’, in the hand of visionary

64 Inter-American Court of Human Rights, Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03 (2003).

65 Ibid., § 101.

66 Ibid., § 112: ‘Migrants are generally in a vulnerable situation as subjects of human rights;

they are in an individual situation of absence or difference of power with regard to non- migrants (nationals or residents). This situation of vulnerability has an ideological dimension and occurs in a historical context that is distinct for each State and is maintained by de jure (inequalities between nationals and aliens in the laws) and de facto (structural inequalities) situations. This leads to the establishment of differences in their access to the public resources administered by the State’; § 113: ‘Cultural prejudices about migrants also exist that lead to reproduction of the situation of vulnerability; these include ethnic prejudices, xenophobia and racism, which make it difficult for migrants to integrate into society and lead to their human rights being violated with impunity’.

67 Ibid., § 107 ff., 121 ff.

interpreters. Without bold and visionary politicians, their implementation will however remain wanting.