Australian Human Rights Centre (AHRC)   WORKING PAPER 2003/1

HUMAN RIGHTS IN A GLOBALISING WORLD:

People Movements

John Pace

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

International Covenant on Economic, Social and Cultural Rights (1966) Article 2(1)

The non-realisation of the rights sets out in the International Covenant on Economic, Social and Cultural Rights has led to the phenomenon of people movements that we are addressing today.  It is true that movements are produced by other causes, such as oppression of certain groups, civil unrest, such as civil war or hostilities, or armed conflicts or indeed, natural disasters.  It is also true that in some cases, people seek to leave their countries for combinations of all these causes – political as well as economic.

The non-realisation of economic, social and cultural rights is, today, the single largest cause of a phenomenon that has taken major proportions affecting several millions of persons, and affecting all regions of the planet.  The problem of people flows is a global problem that affects all countries, large and small, and regardless of their status of economic development.  The international community is faced by the phenomenon of the “economic refugee”: whereas political – or ‘non-economic’ – refugees have long been recognised as the subject of protection under international law, the international community has yet to recognise and define the protection to be accorded to those who are forced to leave their homes for reasons other than a ‘well-founded fear of persecution’, or who otherwise do not benefit from the status of ‘refugee’.

UNHCR refers to ‘persons of concern’ to describe the several millions who need protection but who do not qualify for refugee status.

Some governments have attempted to address these issues on a local or regional level.  The Declaration of Cartagena on Refugees of 22 November 1984 provides an interesting example of such attempts.

Although it is universally recognised that such groups need protection, the international community has yet to agree on the form and nature of such protection.  There are a number of international instruments that relate to various aspects of the phenomenon, particularly to migrant workers.

The ILO Conventions, No. 197 of 1949 (Migration for Employment) and No. 143 of 1975 (Migrant Workers Convention) seek to provide protection in certain circumstances.  ILO also seeks to assist with technical cooperation support.  UNESCO and UNICEF have also addressed the phenomenon from their perspectives of education and child protection.

A few weeks ago, the ratification of the twentieth State (Guatemala) has enabled the International Convention on the Protection of the Rights of All Migrant Workers and their Families to enter into force in the coming months.

This convention seeks to consolidate protection to migrant workers and their families and its implementation is monitored through a treaty body – A Committee On The Protection Of The Rights Of All Migrant Workers And Members Of Their Families – on the same lines as the other principal human rights treaties.

These measures are important, but not sufficient, to address the phenomenon of people floes as we know it today.  Indeed, the international community has been notoriously slow in recognising the phenomenon, and even slower in acting on it.  The Migrant Workers Convention, for instance, has been awaiting the twenty ratifications since 1990, and its coming into force is to be seen as a first step in a long process that only in the future, will (or might) provide some form of protection of the rights of migrant workers.

In the meanwhile, the phenomenon will continue to grow.  Its scope and dimension has produced a defensive reaction by ‘destination’ countries, symptomatic of which is the ‘Pacific Solution’.  Such solutions do not address the problem and in most cases, constitute violations of human rights of the persons concerned on a systematic pattern.  Other countries, in adopting measures of containment, have been more humane, but the problem remains, and will remain, until its causes are effectively addressed and redressed.

The phenomenon requires measures aimed at its management, and measures aimed at eliminating its causes.

The three international institutions that are primarily responsible for the management of this phenomenon are the Office of the High Commissioner for Human Rights, the United Nations High Commissioner for Refugees, and the International Organisation for Migration.  Other organs of the international system are also involved but on a secondary level.

In regard to addressing the causes of the phenomenon, the principal institution would be the United Nations Development Programme, together with the Specialised Agencies of the United Nations System.  The Office of the High Commissioner for Human Rights has a role to play as well in ensuring that programmes are designed to ensure fulfilment of the obligations set out in the International Bill of Human Rights, and more specifically, the International Covenant on Economic, Social and Cultural Rights.

Among them, these institutions provide Governments with the framework that is needed to address the phenomenon and its causes.  It remains for Governments to apply this framework; the Secretary-General of the United Nations has been encouraging this process, by his proposed reforms of the United Nations, and more particularly the human rights component of it.  Starting in 1997 with the first phase, and continuing in 2002 with the second phases, the human rights programme is slowly but surely undergoing a reform intended to bring it into line with the purposes and principles of the United Nations Charter.  In so doing, governments would be able to address the causes of people flows more effectively.  A major factor in the process that has emerged in recent years is the role of trade and of the private sector in this process.  Since 1999, the United Nations has been deploying efforts, through the Global Compact among others, to draw in the private sector in the quest of realisation of international norms on human rights, labour and the environment.

The international system will need to draw closer together and coordinate its resources and activities, in order to create conditions that would neutralise the causes of people flows.  During this process, and until such time as we start to see the effects of this reform, it is incumbent on OHCHR to take the lead with UNHCR and IOM, to ensure that international human rights norms do not continue to be ignored by affected governments.  It is likely that the High Commissioner for Human Rights will carry out this responsibility, which is consistent with the mandate of the Office in General Assembly resolution 48/141.  People flows is first and foremost a human rights issue, and for that reason, the primary responsibility in the international system to ensure that the issue id addressed, lies with the High Commissioner.

The current climate in international relations is not favourable, and recent years have witnessed a trend by States to resort less to international mechanisms opting for unilateral measures and other short term ‘solutions’.  As the phenomenon of people flows continues, it will become clear that there is no solution other than one which involves the international community as a whole, and it is in that direction that the efforts of the United Nations, and more precisely the High Commissioner for Human Rights, have to be dedicated.