Competences and Responsibilities of
States vs. Right to Leave and Return
OAS/IOM introductory course on the human rights of migrants,
including migrant workers and their families
Washington DC - March 6, 2008
Katarina Tomolova
International Migration Law and Legal Affairs Department, IOM Geneva
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States and Migrants
States’ sovereignty vs. Human Rights of Migrants
State has the power to determine:
 Nationality
 Admission
 Residence
 Detention
 Removal / Expulsion of non-nationals
 Security / Border control measures
Fundamental principles:
•Power to manage migration must be exercised in full respect of
fundamental HR
•Power to manage migration must be exercised in full respect of
international commitments
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State sovereignty
Sovereignty as a concept of international law has three major
aspects: external, internal and territorial. The external aspect of
sovereignty is the right of the State freely to determine its
relations with other States or other entities without the restraint
or control of another State. This aspect of sovereignty is also
known as independence. The internal aspect of sovereignty is
the State’s exclusive right or competence to determine the
character of its own institutions, to enact laws of its own choice
and ensure their respect. The territorial aspect of sovereignty is
the exclusive authority which a State exercises over all persons
and things found on, under or above its territory.
IML Glossary on Migration
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STATE OBLIGATIONS TO NON NATIONALS
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HR are inalienable - not absolute
Derogation in times of emergency (Art 4. ICCPR)
HR instruments distinction between national and non
nationals, regular & irregular migrants
Citizens
Regular migrants
Irregular migrants
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Rights that cannot be derogated
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Right to life
Prohibition of genocide
Prohibition of slavery / slave trade
Prohibition of torture
Prohibition against arbitrary detention
Prohibition against racial discrimination
Right to self-determination
Right to humane treatment as a detainee
Prohibition against retroactive penal measures
Right to equality before the law
Principle of non-refoulement
Right to freedom of thought and religion
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States’ Competences
State has the power to determine:
 Nationality
 Admission of non-nationals
 Residence
 Detention
 Expulsion of non-nationals
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Nationality
• Nationality is a juridical and political link that unites an individual
with the state
• It is for each state to determine under its own laws who are its
nationals (1930 Hague Convention)
• Contracting states shall as far as possible facilitate the
assimilation and naturalization of refugees (1951 Geneva
Convention)
• Convention on the Reduction of Statelessness required
bestowal of citizenship under certain conditions when the
person would otherwise be left stateless.
• Each Contracting State agrees that the alien wife of one of its
nationals may, at her request, acquire the nationality of her
husband through specially privileged naturalization procedures
(Convention on the Nationality of Married Women)
• Naturalization largely depend on domestic law
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Right to admit
- A migrant has the right to leave own country
- No international obligation on a State admit a non
national
- Categories of persons able to assert right of return
limited to citizens (No one shall be arbitrarily
deprived of the right to enter his own country, art 12,
sec. 4 ICCPR)
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Residence
• Conditions of sojourn largely depend of the domestic law of each
State.
• Human rights standards protect aliens
Each State Party to the presents Covenant undertakes to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, 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 (ICCPR, Art 2)
• Amount of rights depends on the status of foreigner
• Economic rights of aliens are, however, less firmly established
than other human rights
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Detention
• Criminal Detention
– Punitive in nature or
– Aiming at prevention (e.g.: prevent suspect
from committing a crime or re-offending,
etc.)
• Administrative Detention
– often under the immigration laws
– in practice fewer guarantees and
safeguards against violations
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Detention (“hard” law)
 UDHR
 right to life, liberty and security of person (Art 3)
 prohibition against arbitrary detention (Art 9)
 Art 9 ICCPR (right to liberty) principles
 arbitrary detention prohibited
detention only on grounds and in accordance with
procedures established by law
 right to take proceedings before the court so that
lawfulness of detention can be determined
 enforceable right to compensation if detention
unlawful
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Detention (“hard” law)
 Art 16 MWC (extensive procedural rights)
 arbitrary detention prohibited
 detention only on grounds and in accordance with
procedures established by law
 consular authorities of State or origin, if migrant so requests, to
be informed without delay
 right to prompt communication with the authorities
 right to take proceedings before the court so that lawfulness of
detention can be determined
 enforceable right to compensation if detention unlawful
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Detention and Juvenile Justice
Art 37 CRC: States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading
treatment or punishment. Neither capital punishment nor life imprisonment
without possibility of release shall be imposed for offences committed by
persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall
be used only as a measure of last resort and for the shortest appropriate period
of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the
inherent dignity of the human person, and in a manner which takes into account
the needs of persons of his or her age. In particular, every child deprived of
liberty shall be separated from adults unless it is considered in the child's best
interest not to do so and shall have the right to maintain contact with his or her
family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to
legal and other appropriate assistance, as well as the right to challenge the
legality of the deprivation of his or her liberty before a court or other competent,
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independent and impartial authority, and to a prompt decision on any such
action.
Detention (“soft” law)
Working Group on Arbitrary Detention Deliberation No. 5 on situation
regarding immigrants and asylum-seekers, CHR 56th session, E/CN.4/2000/4
(28 Dec 1999)
Standard Minimum Rules for the Treatment of Prisoners (adopted Aug. 30,
1955 by the First United Nations Congress on the Prevention of Crime and
the Treatment of Offenders)
Basic Principles for the Treatment of Prisoners (G.A. res. 45/111)
Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment (G.A. res. 43/173)
Report of the Special Rapporteur on the human rights of migrants, CHR, 59th
Session, E/CN.4/2003/85 (30 Dec 2002)
 includes a section on “the human rights of migrants deprived of their
liberty” and recommendations
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Right to remove
An alien lawfully in the territory of a State Party to the present
Covenant may be expelled therefrom only in pursuance of a
decision reached in accordance with law and shall, except
where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his
expulsion and to have his case reviewed by, and be
represented for the purpose before, the competent authority
or a person or persons especially designated by the
competent authority.
(Art. 13 ICCPR)
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Right to remove
• State has a right to remove a migrant from the
territory
• Limited by
– Principle of non-refoulement
– “best interests of the child”
– Procedural limitations under international law (Art.
13 ICCPR)
– Measures against collective expulsion (Art. 22
MWC)
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Non-refoulement principle
No Contracting State shall expel or return
("refouler") a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom
would be threatened on account of his race,
religion, nationality, membership of a particular
social group or political opinion.
Art. 33, Convention for the Protection of Refugees, 1951
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 of being subjected to torture
Art. 3 (1), Convention against Torture, 1984
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Expulsion of migrant workers
Prohibition of measures of collective expulsion
•Expulsion allowed only
in pursuance of a decision taken by the
competent authority and in accordance with law
•Decision on expulsion must be communicated with the migrant workers
in the language they understand
•Right of migrant workers to submit reasons for the review of the
expulsion decision
•Right to seek compensation in case of annulation of an already
executed expulsion decision
•Right to settle claims for and receive any wages and other entitlements
despite the performance of expulsion
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Art. 22 Migrant Workers Convention
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National Security
• Power of state to defend its security central feature of state sovereignty
– hence, power to derogate
• Migration procedures are becoming
tools for combating terrorism
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Right to leave and right to return
1. Everyone has the right to freedom of
movement and residence within the border of
each State.
2. Everyone has the right to leave any country,
including his own, and to return to his country.
art. 13 UDHR
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Right to leave
• Fundamental right?
• Applies to nationals and aliens
• No distinction based on regular/irregular
departure/entry
• Covers any form of travel (temporary, long-term);
purpose is irrelevant
• No right of entry (except return to own State)
• Right not absolute
• Duty of abstention imposed State, but also
positive obligation to deliver travel documents
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Right to leave: restrictions
• provided by law
• necessary to protect national security
 e.g. art. 35, IV Geneva Convention of 1949 (Right to leave the territory
unless the departure is contrary to the national interests of the State.)
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(see also articles 48 and 49, same Convention)
 e.g. art. 17 First Additional Protocol of 1977
“2. Civilians shall not be compelled to leave their own territory for
reasons connected with the conflict.”
 members of armed forces, holders of State secrets
protection of public order (payment of fines and taxes, military
obligations)
public health (contagious diseases)
protection of rights and freedoms of others (alimony)
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Right to choose residence
• 3rd component of free movement of persons
• Applicable to “everyone lawfully within the
territory”
• Applicable to “irregular” migrants having been
regularized.
• Not absolute: restrictions based on State
security.
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Right to return
• right to enter for first time (jus sanguinis)
• “his own country”: only “national state” or also
“state of permanent residence”?
• “arbitrary” deprivation: no convincing illustration
• not subject to restrictions of 12.3 ICCPR
• Individual right vs collective right
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Specific cases of voluntary return
• sick and wounded POWs: art. 109 Third Geneva
Convention of 1949
• POWs: art. 118, Third Geneva Convention of
1949
• Civilian population: art. 35 and 49 of Fourth
Geneva Convention
• Refugees: voluntary repatriation
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Contemporary issues
• Free movement in regional integration processes (NAFTA,
MERCOSUR, Andean Community, etc.)
• prevention of smuggling
 Restriction to right to leave? (See Palermo Protocol, art. 10)
• prevention of trafficking
• the obligation to return
 proof of nationality
 Palermo Protocol against Smuggling
 MWC
 Readmission agreements
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Concluding observations
• Freedom of movement: legal norms reflect
political situation of 1950s
• State sovereignty in these matters remains
largely untouched
• Importance of State security
• Are restrictions still the exceptions to the
principle?
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Thank you!
Katarina Tomolova
ktomolova@iom.int
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