International standards governing migration policy

Universal Declaration of Human Rights © United NationsAll human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act
Towards one another in a spirit of brotherhood.

Everyone is entitled to all the rights and freedoms set forth
In this Declaration, without distinction of any kind, such as
Race, colour, sex, language, religion, political or other opinion,
National or social origin, property, birth or other status. […]

Universal Declaration of Human Rights, Articles 1 and 2
UN General Assembly, 10 December 1948

Introduction

Existing legal instruments provide a comprehensive legal framework for the governance of international migration. Well-defined rules address the treatment of a range of migrants including, among others: migrant women, men, children, refugees, stateless persons, migrant workers, and migrant victims of trafficking.

The bodies of international law which provide the basis for national migration laws, policies and practice include: international human rights law, international labour law and standards, international refugee law, international criminal law, international humanitarian law, international consular law, and international maritime law.

International human rights law

International human rights law (IHRL) lays down obligations which States are bound to respect. Unlike other bodies of law, which may only apply to specific groups or situations, international human rights law applies to all people at all times. This includes not only a State’s own citizens, but everyone within the State’s jurisdiction or effective control. This means that all migrants, regardless of their status, are entitled to the same international human rights as everyone else.

As with all rights-holders, States have an obligation to migrants to respect, protect, and fulfill their human rights.

  • Respecting human rights means refraining from human rights violations, and in the migration context includes refraining from arbitrary detention, torture, or collective expulsion of migrants.
  • The obligation to protect human rights requires States to prevent human rights violations by other actors. With regard to migrants, this means that States should, for example, regulate recruitment agencies, sanction abusive employers, protect migrants from violence and abuse by smugglers, and take action against xenophobia and hatred.
  • Fulfilling human rights requires taking positive measures to ensure the realization of those rights, such as, for migrants, introducing alternatives to detention, and guaranteeing access to healthcare, education, and other social services.  

Realizing human rights in migration policy also means incorporating certain cross-cutting human rights principles, including:

  • Equality and non-discrimination: The principle of non-discrimination prohibits distinction, exclusion, restriction or preference on the basis of a list of non-exhaustive grounds such as race, colour, descent, ethnic origin, sex, age, gender, sexual orientation, gender identity, disability, religion or belief, nationality, migration or residence status or other status. States should address direct and indirect discrimination against and unequal treatment of people in laws, policies and practices, including by paying particular attention to the needs of migrants in vulnerable situations.
  • Participation and inclusion: Everyone is entitled to active, free and meaningful participation in decisions that affect the enjoyment of their rights. All people have the right to access information, in a language and format accessible to them, regarding the decision-making processes that affect their lives and well-being. This means that migrants should be consulted and included in the development of relevant public policy.
  • Accountability and rule of law: Everyone is entitled to claim and exercise their rights. States should ensure transparency in the design and implementation of their policies and must ensure that rights-holders have access to mechanisms of redress and to enjoy effective remedies when human rights breaches occur. The system governing migration should allow migrants full access to justice, including redress and remedies if they experience human rights violations.

Through its support to States and to  the various human rights mechanisms, OHCHR helps to identify good practices and policies that ensure  human rights-based governance of international migration.