Migrants’ and refugees’ rights and possible limitations to their social and economic opportunities, as well as the freedom of cultural self-expression, remain highly debatable topics. Through international tools and treaties, intergovernmental bodies seek to regulate migration while also offering protection and preventing the violation of human rights. This paper rejects the statement that international instruments and agreements, including the UN’s human rights treaties, are critically important in protecting these categories’ rights and that inter-state agreements actually criminalize migration.
The argument regarding international decisions’ ultimate role in protecting the rights of non-nationals can be criticized since some elements in these tools allow for interpretations that would lead to discrimination. In a critical review of international human rights treaties, Lougarre (2020) demonstrates that the promises of the UN’s treaties to battle discrimination against non-nationals are overstated. For instance, despite seeking to end discriminatory attitudes, the International Convention on the Elimination of All Forms of Racial Discrimination, in particular, Article 1.2, allows “differential treatment based on citizenship” (Lougarre, 2020, p. 257). Without stating the principle of equal treatment, the convention could hinder the attempts to promote migrants’ and refugees’ so-called economic, social, and cultural (ESC) rights, including the right to food, safe housing, and access to healthcare/social security services and jobs (Liugarre, 2020). With that in mind, there are some barriers to the perfect application of protections aimed to eliminate discrimination on the basis of one’s citizenship status.
It is also notable that the members of intergovernmental organizations have some freedom to decide on the extent to which protections for migrant populations can be implemented, which leaves some room for the violation of economic rights. Specifically, in Article 2.3, the International Covenant on ESC Rights adopted in the mid-1960s enables developing economies to limit non-nationals’ economic rights in case of their unfavorable economic climates (Liugarre, 2020). The international tool, while stating the need for protections, makes deviations from the universal standard of supporting migrants and refugees possible, which could potentially lead to insufficient protections for non-nationals in low-income and emerging economies.
Instead of criminalizing migration, international instruments and decisions oppose the viewpoint of migration as a crime and seek to reduce high-risk practices that affect migrants, such as smuggling for personal gains. The UN’s official position on criminalization is that it is conducive to human rights violations and does not prevent irregular migration (United Nations Human Rights, Office of the High Commissioner, n.d.). The smuggling of illegal migrants and its life-threatening nature remain tremendous concerns in the international arena, so the UN called for the passing of state-level laws to classify smuggling as a criminal offense (Micinski, 2021). The organization’s decisions also support the gradual abolition of detention practices as part of migration control endeavors (United Nations Human Rights, Office of the High Commissioner, n.d.). Based on the UN’s attitudes to migration, through its decisions and universally proclaimed principles, the intergovernmental organization seeks to promote safer alternatives to criminalization and immigrant detention. Additionally, there is a special focus on prohibiting the detention of underage illegal immigrants because of their caregivers’ immigrant status.
To sum up, since the members of international organizations have the opportunity to decide on differential treatment and the extent to which non-nationals’ economic rights will be met, it is doubtful that international instruments’ role in protecting migrants/refugees is ultimate. The UN’s decisions seek to oppose the criminalization of migration rather than contribute to it. Nevertheless, the UN’s objectives and attitudes to criminalization that the organization popularizes do not undermine individual sovereign states’ ultimate freedom to determine the conditions of entry into their territories and migration control strategies.
Lougarre, C. (2020). The protection of non-nationals’ economic, social and cultural rights in UN human rights treaties. International Human Rights Law Review, 9(2), 252-290. Web.
Micinski, N. R. (2021). UN Global Compacts: Governing migrants and refugees. New York, NY: Routledge.
United Nations Human Rights, Office of the High Commissioner. (n.d.). The criminalisation of irregular migration.