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Structure 1.0

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Daniel Gusen

on 18 July 2011

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Transcript of Structure 1.0

Undocumented Migrants & Access to Human Rights
Normative & Humanitarian

central research question:
"What does the actual situation of undocumented migrants look like?"
sociological research
1. empirical study: testing the rights-based approach
2. theoretical approach:
declaration of human rights is not the only means to empower migrants
important not to overlook social reality

forced migration -
root cause approach
Migrants as a vulnerable group
Migration hump
net wages influenced by migratory factors -> + 0,1% of the US BDP
cheap labour force
structure determined by the hierarchy-capitalistic system
against circular migration
WTO HR and Migration
Thank you for your attention!
Lampedusa - May 14. 2011 - UNHCR
a social condition
of powerlessness
legal framework
power differentials
a social construct
conventional assumption:
migrants should not have complete equal rights as nationals do
"A basic principle of human rights is that entering a country different from his or her own, in violation of that country’s immigration laws, does not deprive such an “irregular immigrant” of his human rights, nor does it erase the obligation of a UN member state to protect those individuals."
Bustamante 2002: 338
irregular migrants are
particularly vulnerable
in terms of
human rights violations
classical rights-based approach does not fully explain immigrants' motivations, ignores nation states' interests
young migrants: support rights-based approach
older migrants: contradict it
"vulnerability" as socially constructed condition of powerlessness
legal differences lead to discrimination in social reality
zero sum game:
legal basis for discrimination
fight against violation of human rights
disparity between rights within a country and restrictive entry laws
disparity between legal framework and socially constructed inequalities
International Human Rights Framework
General Remarks
Human rights are universal, indivisible and inalienable
UDHR underscores that all people are entitled to respect for their human rights
regardless of their
- place of residence,
- status in a country,
- or state of employment
Migrant Rights
very disperse - no single document
HR law does not explicitly refer to migrants
UDHR & core labour standards (ILO) apply to all human beings
regardless of their migration status
HR are not linked to citizenship but to being human
Migrants Rights
UDHR 1948
ICCPR 1966
ICERD 1965
CEDAW 1979
CAT 1984
CRC 1989
ICRMW 1990
ILO Declaration on
Fundamental Principles
and Rights at Work
C97 - social rights
C143 - irregular migrants
Rights & Duties
irregular migrants have equal rights as nationals - with few exceptions
states are responsible for the respect of human rights
protection of HR is essential for political stability and development
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
applies to all migrant workers,
regardless of legal status
specifies articles of ICCPR & ICESCR
addresses special vulnerability &
protection needs
equal treatment with nationals regarding
- conditions of employment
- social security rights
- emergency medical care
- education
Ratification Status
nowdays policies
brief history on the int. discourse on migration and human rights
root cause approach
new assumptions
Purists (ILO, UN)
Circular migration (Contries of origin, EU)
Instrumentalists (neoliberal, WTO)
Article 13 - UDHR
(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14 - UDHR
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

Article 22 - UDHR
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Focus Group Discussion
Question 1:
In which areas of human rights can violations of the rights of irregular migrants (e.g. Libyans that have already entered the EU) be observed?
Question 2:
Imagine you escaped from Libya and are right now in a tent-camp in Lampedusa.
What would you expect from the Italian government and the EU in terms of protection and human rights?
Question 3:
If you compare your expectations with the actual situation of these migrants –
What gaps can you identify?
Question 4:
What measures could be taken by the United Nations in this case in order to ensure that governments respect the formulated declarations and resolutions?
Push-factors in the countries of origin
legitimation of development aid
development aid was mainly limited to pilot projects
new mobility technology inventions
Migration hump
Human rights
statistical data refuses root cause approach
pull factors
migration is structurally determined
Circular Migration
normative framework
lack of influence
missused national base
win-win-win situation (CoO, CoD, Migrant)
cheap labour force
social remittances
Free labour migration - CoO, EU
Mode 4 always involves a natural person, through whose presence services are being traded.
The fact that lower-skilled persons are generally absent from commitments for instance, does not mean that they are not covered by mode 4.
(a) Independent Professionals (IP): self-employed persons of B who are present in A to supply a service to a local client pursuant to a service contract.
Contractual Service Suppliers (CSS): employees of a service supplier of B without a commercial presence in A, who are present in A to provide a service pursuant to a service contract concluded between their employer and a local client. CSS receive their remuneration from their employer, and not from the client.
Basav Sen, immigrant rights activist and journalist:
In practice, [GATS 4], meaningless - being a foreign country, they will lack physical access to labor unions, legal services, human rights organizations, and courts in their own country. Even in the extremely unlikely event that they were to surmount these barriers and attempt to file legal proceedings in their home country against their employer, the jurisdiction of these courts in most cases will not apply because the abuse will have occurred outside the territory of the worker's home country, [With multinational cooperations,] it's also quite likely that the employer will he based in a third country.
Need for international nation-state cooperations
->Foreign minstries in countries of origin are
talking with the ministries of national affairs
Instrumentalists rather than purists are defining international policies
The Member States of the Schengen Agreement
The Franco- Italian Summit
"Case Study"
Italy has given up to 20,000 undocumented migrants six month temporary residence permits, allowing them to travel freely in the border-free Schengen zone.

internal border controls in cases of "exceptional difficulties"
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