Promoting and Protecting the Rights of Migrant Workers The Role of National Human Rights Institutions 3.3. Responsibilities to nationals and non-nationals States may exercise their national sovereignty to decide who to admit into their territory. However, once an individual has entered a country, the Government is responsible for the protection of his or her rights. All persons regardless of their nationality, race, legal or other status are entitled to human rights and basic labour protections. Some of the human rights treaties, however, do make distinctions between the rights of nationals and non-nationals and impose different obligations on States in relation to nationals and non-nationals. This can also extend to a State having different obligations towards migrants who are lawfully present in the State and those who are unlawfully present. For example, article 25 of the International Covenant on Civil and Political Rights (the right to vote) applies only to citizens. Article 12 (the right to freedom of movement and choice of residence) applies only to nationals and migrants who are lawfully present in the State.27 However, differential treatment on the basis of nationality or migration must not be “disproportionate, arbitrary or discriminatory”.28 Migration status alone will not justify any limit on basic human rights and labour standards. The Human Rights Committee, the UN treaty body established under the International Covenant on Civil and Political Rights, has set out conditions for differential treatment, stating that it is permissible only if “the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”.29 The Committee on the Elimination of Racial Discrimination has also set out 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”.30 The rights provided in the International Covenant on Economic, Social and Cultural Rights extend to all persons, without discrimination, regardless of legal status or documentation.31 These include the right to work (article 6), the right to just and favourable conditions of work (article 7), the right to establish trade unions (article 8) and the right to an adequate standard of living, including adequate food, clothing, housing and the continuous improvement of living conditions (article 11). The Human Rights Committee has further emphasized that temporary “derogation”32 from obligations are only permissible in exceptional circumstances (that is, during times of public emergency) and must not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.33 27 Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence; International Council on Human Rights Policy; 2010; p. 51. However, as the Human Rights Committee has noted, domestic law restrictions on the “entry of aliens” must be in line with States’ international obligations and any restrictions on the right under article 12(3) should be consistent with the rest of the Covenant rights. See: General Comment No. 27; 1999; paras. 4 and 11. 28 Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence; International Council on Human Rights Policy; 2010; p. 51. 29 General Comment No. 18; Human Rights Committee; 1989; para. 13. 30 General Recommendation No. 30; Committee on the Elimination of Racial Discrimination; 2004; para. 4. 31 General Comment No. 20 (article 2, para. 2); Committee on Economic, Social and Cultural Rights; 2009; para. 30. 32 Article 4 of the International Covenant on Civil and Political Rights sets out the limited circumstances in which States may temporarily “derogate” from or limit the application of Covenant obligations within tightly defined conditions. It further prohibits any derogation from articles 6, 7, 8 (paras. 1 and 2), 11, 15, 16 and 18 in the Covenant. The Human Rights Committee’s General Comment No. 29 (2001) on article 4 further provides some foundational principles regarding derogation from human rights treaties and indicates that the provisions explicitly listed in article 4 are not exhaustive; obligations may also be determined to be nonderogable on the basis of humanitarian law and the status of some rights in international law as “peremptory norms”. 33 General Comment No. 29 (2001); paras. 2 and 8. 6 | Chapter 1: The international legal framework on the rights of migrant workers and members of their families