- Additional Sources (Labor and Humanitarian Law)
Migration-Related Detention and International Law
In addition to the main international and regional human rights instruments and bodies are several legal regimes that can have relevance—albeit in some cases only indirectly—to the rights of migrant detainees. These include international labor standards that are enumerated in the various conventions and recommendations of the International Labor Organization and protections afforded administrative detainees and refugees in international humanitarian law.
1. Conventions of the International Labor Organization
Established in 1919 as a part of the Treaty of Versaille ending World War I, the International Labor Organization is mandated to promote social justice and develop standards on workers rights. The ILO has adopted more than 180 conventions covering a broad range of issues, including the right to work, the right to collective bargaining, child labor, work-place discrimination, and forced labor. Many of the rights recognized in these conventions are also protected in core UN instruments and human rights treaties, such as the Universal Declaration of Human Rights; the International Covenant on Economic, Social, and Cultural Rights; the Convention on the Rights of the Child; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Among the ILO conventions that can have relevance to the detention and deportation of migrants are: the Forced Labor Convention of 1930 (also known as Convention 29, or the Convention concerning Forced or Compulsory Labor), which is one of the “fundamental ILO conventions”; the Migration for Employment Convention of 1949 (Convention 97, Convention concerning Migration for Employment ); the Migrant Workers Convention of 1975 (Convention 143, Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers); and the Private Employment Agencies Convention of 1997 (Convention 181, Convention concerning Private Employment Agencies).
The Forced Labor Convention of 1930 is one of the eight treaties that are considered “fundamental ILO conventions,” which were established as such in the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work. An intent of the declaration is to “affirm that the principles reflected in the fundamental conventions express core principles of international labor law, which are binding on all ILO member states, whether or not they have become parties to relevant conventions” (Marks and Clapham 2005, p. 445).
In a 2005 follow-up report to the 1998 declaration, titled A Global Alliance against Forced Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, the ILO highlights the use of detention and deportation in the context of the forced labor of migrant workers. It states, “The precarious legal status of millions of irregular migrant women and men makes them particularly vulnerable to coercion, because of the additional and ever-present threat of denunciation to the authorities. Victims can be faced with the difficult choice between accepting highly exploitative conditions of work and running the risk of deportation to their home countries if they seek redress” (ILO 2005, p. 2). An illustrative case of this sort of forced labor situation with respect to migrant workers is the situation of some imported domestic laborers in the Gulf states.1
The 2005 report also notes that detention can be an indication of forced labor, in particular, “Physical confinement in the work location—in prison or in private detention” (ibid, p. 6). It clarifies that although there is an exception to the prohibition against forced labor in the case of people imprisoned because of criminal convictions, this exception does not apply to people in administrative detention (the form of confinement used for most migrant detainees) and that there are specific protections for people held in privately-run prisons, which are increasingly used by states for the purposes of immigration detention.2 The report states, “The ILO instruments provide for exceptions to the prohibition of exacting forced labour, in the case of prisoners who have been duly sentenced by a court of law. Persons under administrative detention are exempt from forced or compulsory labour; and there are specific guarantees of protection for prisoners placed at the disposal of private individuals, companies, or associations, including those confined in private prisons. Yet of the approximately 8 million recognized prisoners worldwide—not to mention those in administrative or other forms of detention—only some 150,000 are in private prisons, and no figures are available as to those who might be working for private employers” (ibid, p. 27).
In this context, of particular relevance, especially to the situation of migrant workers, is the Forced Labor Convention’s Article 1, which affirms that member states undertake “to suppress the use of forced or compulsory labor.” Article 2 defines forced labor as “all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily,” with a number of exceptions, including military service, civic obligations, and work stemming from a conviction in court of law (as long as the person “is not hired to or placed at the disposal” of private entities). In addition, Article 4 provides that authorities “shall not impose or permit the imposition of forced or compulsory labor for the benefit of private individuals, companies, or associations.”
Two ILO conventions specifically address the rights of migrants, the Migration for Employment Convention of 1949 and the Migrant Workers Convention of 1975. Key aspects of the 1949 convention are its articulation of principles on conditions governing the recruitment of migrant workers, their equal treatment, their right to collective bargaining, among other rights (Cholewinski 2005). Of particular salience to the issue of migration-related detention is Article 8 of the 1949 convention, which stipulates, “A migrant for employment who has been admitted on a permanent basis and the members of his family who have been authorized to accompany or join him shall not be returned to their territory of origin or the territory from which they emigrated because the migrant is unable to follow his occupation by reason of illness contracted or injury sustained subsequent to entry, unless the person concerned so desires or an international agreement to which the Member is a party so provides.”
The 1975 Migrant Workers Convention is more expansive in scope than the 1949 convention, in particular with respect to irregular migrants and human trafficking. “Adopted at a time when particular migration abuses, such as the smuggling and trafficking of migrant workers, were attracting the attention of the international community … this instrument devotes a whole section to irregular migration and to interstate collaborative measures considered necessary to prevent it” (Cholewinski 2005). Article 1 stipulates, “Each Member for which this Convention is in force undertakes to respect the basic human rights of all migrant workers.”
A key aim of the 1975 convention is to suppress illegal and/or clandestine labor migration “in order to prevent and to eliminate” abuses (Art. 3). This aspect of the convention is directed particularly at those who smuggle and/or employ undocumented migrant workers. Article 3 stipulates that member states shall adopt necessary measures “against the organizers of illicit or clandestine movements of migrants for employment departing from, passing through or arriving in its territory, and against those who employ workers who have immigrated in illegal conditions.”
With respect to the rights of irregular migrants, including those subject to detention or deportation, the 1975 convention provides, “Without prejudice to measures designed to control movements of migrants for employment by ensuring that migrant workers enter national territory and are admitted to employment in conformity with the relevant laws and regulations, the migrant worker shall, in cases in which these laws and regulations have not been respected and in which his position cannot be regularized, enjoy equality of treatment for himself and his family in respect of rights arising out of past employment as regards remuneration, social security, and other benefits” (Art. 9). Article 9 also provides that an illegally residing worker shall “have the possibility of presenting his case to a competent body, either himself or through a representative” and that “in case of expulsion of the worker or his family, the cost shall not be borne by them.”
Lastly, of indirect relevance to migration-related detention, particularly with respect to abuses in the recruitment of migrant workers, is the Private Employment Agencies Convention, which was adopted in 1997 out of recognition that for-profit employment agencies increasingly play a role in labor markets. Article 8 stipulates that member states shall “adopt all necessary and appropriate measures … to provide adequate protection for and prevent abuses of migrant workers recruited or placed in its territory by private employment agencies. These shall include laws or regulations which provide for penalties, including prohibition of those private employment agencies which engage in fraudulent practices.”
2. International Humanitarian Law
International humanitarian law (IHL) is a set of norms established in customary international law and a number of international conventions—including the Hague Conventions of 1899 and the four Geneva Conventions of 1949 as well as their additional protocols of 1977—that are commonly referred to as “the law of war or the law of armed conflict.” According to the International Committee of the Red Cross (ICRC), IHL seeks, “for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare” (ICRC 2004).
Although IHL does not directly address migration-related detention, many of the norms and legal interpretations that emerge from this body of law cover detention, in particular administrative detention, and provide useful guidelines for understanding key issues that arise in migration-related detention situations. IHL has also informed relevant human rights conventions, like the Refugee Convention. “One of the cardinal principles of international refugee law, the exclusively civilian character of refugee camps and settlements and, more broadly, of asylum, has been shaped and permeated by a founding principle of international humanitarian law, namely, the principle of distinction” between combatants and civilians (Jaquemet 2001).
Among the concepts developed in international humanitarian law that are reflected in human rights norms relevant to migration-related detention are the notion of “interned,” which closely resembles “administrative detention,” and access to places of detention by independent third parties (for a detailed discussion of IHL norms with respect to internment, see Pejic 2005).
The Commentary to Protocol I to the Geneva Conventions defines “interned” as the “deprivation of liberty ordered by the executive authorities when no specific criminal charge is made against the individual concerned” (ICRC 1977).
The 1949 Convention relative to the Protection of Civilian Persons in Time of War, (Convention IV) stipulates that the ICRC “shall have permission to go to all places where protected persons are, particularly to places of internment, detention, and work. They shall have access to all premises occupied by protected persons and shall be able to interview the latter without witnesses, personally or through an interpreter. Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted. Such representatives and delegates shall have full liberty to select the places they wish to visit” (Art. 143).
The term “protected person” in the convention refers uniquely to “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (Art. 4). However, the notion of access by independent third parties to places of detention has been used in subsequent human rights conventions, in particular the 2002 Optional Protocol to the Convention Against Torture (OPCAT), which seeks to prevent torture and ill-treatment through the establishment of a system of regular visits by independent international and national bodies to places of detention. All places of detention under the jurisdiction and control of states parties are subject to visits under this protocol, including sites where non-citizens are held in administrative detention.
The Working Group on Arbitrary Detention has also highlighted ICRC’s role in visiting places of detention, including those used to hold asylum seekers. In a 2000 report to the Commission on Human Rights, the Working Group enumerated several “principles” with respect to the administrative detention of asylum seekers, including that “The Office of the United Nations High Commissioner for Refugees (UNHCR), the International Committee of the Red Cross (ICRC) and, where appropriate, duly authorized non-governmental organizations must be allowed access to the places of custody” (WGAD 1999).
Lastly, Convention IV provides additional protections for refugees. While Article 9 of the Refugee Convention allows states to derogate from the protections provided refugees during “time of war or other grave and exceptional circumstances,” Convention IV “contains important complementary safeguards … [and] urges States to show the greatest restraint in applying special measures to protected persons” (Jaquemet 2001).
1. See, for instance, the Global Detention Project’s profile on Bahrain, September 2009, https://www.globaldetentionproject.org/countries/middle-east/bahrain/introduction.html
2. See Michael Flynn and Cecilia Cannon, “The Privatization of Immigration Detention: Towards a Global View,” Global Detention Project working paper, September 2009, https://www.globaldetentionproject.org/https://www.globaldetentionproject.org/wp-content/uploads/2016/06/GDP_PrivatizationPaper_Final5.pdf