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The International Bill of Human Rights (the UDHR, ICCPR and ICESCR) affrms a
range of civil, political, economic, social and cultural rights that generally apply
to all persons, as well as the principle of non-discrimination that is central to the
idea of fairness in international human rights law. This principle circumscribes
the scope of differential treatment. Selective derogation made on the basis
of citizenship or immigration status must not be disproportionate, arbitrary or
discriminatory; an element of fairness and reasonableness is essential to bring
such measures within the bounds of international law.
A number of fundamental civil and political rights – including the rights to life,
freedom from torture, freedom from slavery and forced labour, equality before
the courts, and equal protection of the law – can never be limited even with
respect to non-nationals, including irregular or smuggled migrants. Differential
treatment on those grounds is never defensible.94
While the ICCPR applies to migrants as well as nationals, however, it does not
necessarily apply in the same manner or to the same degree. Article 25 (the
right to vote) applies only to citizens, while Article 13 (the right to judicial review
of an expulsion order) applies only to non-nationals. Moreover, the ICCPR draws
a secondary distinction between regular and irregular migrants. Article 12 (the
right to freedom of movement and choice of residence) and Article 13 (expulsion
after due process) “only protect those aliens who are lawfully in the territory of a
State party… [I]llegal entrants and aliens who have stayed longer than the law
or their permits allow, in particular, are not covered by its provisions”.95
If differential treatment is therefore sometimes permissible, it should be carefully
distinguished from discriminatory treatment. When an individual’s claim to
a particular right conficts with the state’s interests, the state may take into
consideration that individual’s citizenship or immigration status in deciding the
matter. On such grounds, the state may lawfully deprive non-nationals of certain
rights even when it upholds those rights for nationals; it may equally deprive
undocumented migrants of certain rights while affording those rights to legally
resident migrants. The default position, therefore, is that states are obliged to
grant migrants the same rights protection as nationals, except when different
treatment can be justifed. Often, however, states act without such justifcation.
94 The Committee on Economic, Social and Cultural Rights has further asserted that
States Parties are obliged to ensure that each right enunciated in the Covenant is
satisfed to, at the very least, minimum essential levels (including the rights to food,
education, water, housing and health). In its General Comments Nos. 12, 13, 14 and
15, the Committee has directed that these core obligations are non-derogable.
95 UN Human Rights Committee (1986), General Comment No. 15: “The Position of
Aliens under the Covenant”: para. 9.
52 Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence
At the same time, international law limits differential treatment. The Human
Rights Committee has noted that differential treatment is permissible only
where distinctions are made to achieve a legitimate aim and where an objective
The means employed must also be proportionate to the
This principle applies even during times of emergency, when, under
strictly defned conditions, the ICCPR permits certain derogations.98
Committee on the Elimination of Racial Discrimination has similarly stipulated
that “differential treatment based on citizenship or immigration status will
constitute discrimination if the criteria for such differentiation, judged in the light
of the objectives and purposes of the Convention, are not applied pursuant to a
legitimate aim, and are not proportional to the achievement of this aim”.99
All migrants, like citizens, are also entitled to claim economic, social and
cultural rights under the ICESCR, which theoretically extends to all persons
– and therefore to all migrants within the territory. These include wide-ranging
entitlements in areas where migrants are often at risk, including fair wages,
health care, housing and education. The Committee on Economic, Social and
Cultural Rights has noted that the Covenant’s Preamble stresses the “equal and
inalienable rights of all” and the Covenant expressly recognises the rights of
“everyone” to the various Covenant rights. It also concluded that states have
an obligation to eliminate indirect as well as direct forms of discrimination. To
illustrate the former, it pointed out that requiring a birth registration certifcate for
school enrolment may discriminate against ethnic minorities or non-nationals who
do not possess, or have been denied, such certifcates. Finally, the Committee
has explicitly affrmed that Covenant rights are available without discrimination
to all non-nationals, regardless of their legal status or documentation.100
The ICESCR (Article 4) permits states to limit the rights contained in the Covenant
96 This committee monitors the implementation of the ICCPR: General Comment No.
18 on Non-Discrimination (1989).
97 Fitzpatrick, 2003, p. 172. Article 8 of the General Comment notes that “equal”
treatment does not mean “identical” treatment.
98 See Articles 4 and 12(3). Article 4 notes that: “In time of public emergency which
threatens the life of the nation and the existence of which is offcially proclaimed,
the States Parties to the present Covenant may take measures derogating from
their obligations under the present Covenant to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with
their other obligations under international law and do not involve discrimination
solely on the ground of race, colour, sex, language, religion or social origin.”
99 CERD, General Recommendation No. 30, Discrimination against Non-Citizens.
100 CESCR, General Comment No. 20: Non-Discrimination in Economic, Social and
Cultural Rights (Article 2, para. 2), E/C.12/GC/20, 10 June 2009.
Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence 53
where this is required to promote the “general welfare”101
– a vague clause
that could permit wide interpretation. The Limburg Principles, which provide
interpretive guidance on the ICESCR, assert that this article was primarily
inserted to protect the rights of individuals, and was not intended to limit rights
affecting the subsistence or survival of individuals or the integrity of the person.
According to the Principles, the term “promoting the general welfare” should be
“construed to mean furthering the well-being of the people as a whole”.102
Article 2(3) of the ICESCR also allows industrialising states to limit the provision
of economic rights to non-nationals. Again, however, the Limburg Principles
conclude that Article 2(3) addressed the economic infuence of certain
groups of non-nationals under colonisation and that, accordingly, it should
be interpreted narrowly.103
The principle of “progressive realisation” (ICESCR,
Article 2) refects a recognition that to some extent the realisation of economic,
social and cultural rights may be impeded by lack of resources, and that some
rights can only be achieved over a period of time.104
However, it is clear that lack
of resources cannot justify indefnite inaction or postponement of implementing
measures. Even when resources are limited, states have a duty to ‘take steps’,
including targeting programmes to protect the most disadvantaged, vulnerable
and marginalised sectors of their society. In many societies, this group would
include migrants, including migrants in an irregular situation.
States therefore have certain immediate obligations in relation to economic,
social and cultural rights, including the duties to eliminate discrimination, to
take steps to respect the prohibition on retrogressive measures, and to ensure
minimum core obligations. The latter rights, which apply equally to all individuals
present on the territory of the state, include access to: employment; basic
shelter; water and sanitation; a social security scheme that provides minimum
essential benefts; and free and compulsory primary education.105
101 ICESCR, Article 4: “[T]he State may subject such rights only to such limitations
as are determined by law only in so far as this may be compatible with the nature
of these rights and solely for the purpose of promoting the general welfare in a
102 Limburg Principles, Article 4, para. 52.
103 The history of the Covenant indicates that the drafters intended to protect the rights
of nationals of newly-independent former colonies from resident non-nationals
who controlled important sectors of the economy. The Limburg Principles further
provide guidance that the term ‘developing countries’ applies to those countries
that gained independence and fall under the appropriate United Nations defnition
of the term, in order to stress further the intentionally limited scope of the article.
Limburg Principles on the Implementation of the ICESCR, 1986, paras 42-44.
104 ICESCR, Article 2, paras 1-3.
105 OHCHR, 2008a, p. 13.
54 Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence
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