'Prevention of human rights abuses against irregular migrants: the role of National Institutions'
Presentation at the 8th International Conference of National Institutions for the Promotion and Protection of Human Rights, Santa Cruz, Bolivia
The Hon. John von Doussa QC, President,
Australian Human Rights and Equal Opportunity Commission (HREOC)
Thursday 24 October 2006.
In the age of globalisation there has been a massive increase in international migration and, as the number of international migrants has grown, so too has the problem of irregular migration. Many states have tried to stem irregular migration by introducing new border control measures and tougher criminal sanctions for people smugglers. However, while effective border control is a legitimate objective of all sovereign states, state responses to the issue of irregular migration have often failed to protect the human rights of irregular migrants.
National Human Rights Institutions (NHRIs) have a vital role to play in drawing attention to human rights abuses of irregular migrants and advocating the need for states to implement the International Convention on the Rights of All Migrant Workers and Members of their Families (‘the Convention on the Rights of All Migrant Workers’) which obliges state parties to work together to prevent irregular migration and eliminate the employment of irregular workers.
Defining irregular migration
Irregular migration occurs when a person enters or remains in a country in breach of that country’s immigration laws.
This term ‘irregular migrant’ encompasses a vast range of human experience – from people who are smuggled or trafficked across international borders to students and tourists whose visas have expired. Such a person is therefore at risk of being deported.
It is important to note that asylum seekers claiming refugee status do not fall into the category of irregular migrants. This is because asylum seekers, regardless of their mode of entry, have a right to apply for asylum. In these circumstances it is vital that states do not penalise asylum seekers for arriving without permission.
However, an asylum seeker whose claim for refugee status fails will fall into category of irregular migrants.
The vulnerability of irregular migrants to human rights abuses
Irregular migration occurs against a backdrop of poverty and human rights abuses in countries of origin and demand for illegal labour in countries of destination.
For many people irregular migration is not a choice, it’s a desperate – and dangerous - effort to break the cycle of poverty and destitution. Each year many people die attempting to cross country borders undetected by the authorities. However, the problems faced by irregular migrants do not end if they reach their country of destination.
On arrival migrants’ irregular status makes them particularly vulnerable to exploitation and coercion in the workforce because of the ‘ever-present threat of denunciation to the authorities’.
Irregular migrants can be trafficked for sexual exploitation, the trade in human organs or forced labour. Even if irregular migrants are not trafficked from their country of origin to their country of destination, their precarious legal status means that they may later become the victims of forced labour or other forms of workplace exploitation.
The fear of being deported or detained often prevents irregular migrants from reporting human rights abuses to the police or from accessing medical care, social services or legal assistance.
Irregular migration and the problem of human trafficking
The combination of poverty and the promise of a better life elsewhere can make people vulnerable to the risk of trafficking. The trafficking industry feeds on the abuse of irregular migrants: victims of trafficking may be subjected to sexual exploitation, forced labour, slavery, the removal of organs or other forms of exploitation.
While people smugglers also prey on the vulnerabilities of the poor and the desperate, the difference between trafficking and smuggling is that (to quote the United Nations Office of Drugs and Crimes):
The smuggling of migrants, while often undertaken in dangerous or degrading conditions, involves migrants who have consented to the smuggling. Trafficking victims, on the other hand, have either never consented or, if they initially consented, that consent has been rendered meaningless by the coercive, deceptive or abusive actions of the traffickers.
Another major difference is that smuggling ends with the arrival of migrants at their destination, whereas trafficking involves the ongoing exploitation of the victims in order to generate illicit profits for the traffickers. 
However, in practice the distinction between trafficking and smuggling can become difficult to define in circumstances of extreme deprivation where the person who is ‘choosing’ to migrate has little, if any, other options and lacks the knowledge to make a properly informed choice.
NHRIs have an important role to play in encouraging states to implement the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children (The Trafficking Protocol) and the Protocol against the Smuggling of Migrants by Land, Air and Sea (The Smuggling Protocol).
The Trafficking Protocol obliges state parties to comprehensively criminalize trafficking as well as implement ‘...measures to provide for the physical, psychological and social recovery of victims of trafficking in persons’.
While effective action against trafficking may prevent some of the worst forms of human rights abuses against irregular migrants, it will not guard against all forms of exploitation or adequately address the broader problem of the market demand for irregular migrant labour.
By advocating the implementation of the Convention on the Rights of All Migrant Workers, which entered into force in 2003, NHRIs can draw attention to the need to protect the rights of all irregular workers, not just irregular migrants who fit the legal definition of a trafficked person.
Preventing human rights abuses of irregular migrants
Human rights should be for everyone, regardless of their immigration status. However, there is a temptation – a politically viable temptation – for governments to focus on the rights of citizens, not the rights of non-citizens. NHRIs can play a vital role in drawing attention to the human rights abuses of people who have no political capital and who are often too afraid of deportation or detention to speak out about the problem.
For example, in Australia, sustained pressure from the Human Rights and Equal Opportunity Commission (HREOC), NGOs and the media was influential in convincing the government to take action to combat the problem of trafficking.
Of course, no one country can hope to prevent human rights abuses of irregular migration single-handedly. The problem demands international cooperation between countries of origin, transit and destination.
Crucially, NHRIs must advocate that all nations ratify and implement international human rights laws to protect the rights of irregular migrants. When states introduce laws or polices about irregular migration NHRIs should analyse the compatibility of the new measures with thesState’s international human rights obligations.
NHRIs must convince states that in order to effectively address the problem of irregular migration there must be international efforts to address the socio-economic problems and human rights abuses that make people desperate enough to believe that placing their lives in the hands of people smugglers or traffickers is their only option.
To this end NHRIs must advocate that the international community – included developed countries and major aid donors - help build the capacity of countries of origin to provide basic human rights– such as the right to education, health and housing. Strategies in countries of origin also need to target the gendered dimension of irregular migration by addressing the problem of gender discrimination and educating vulnerable women and children about the dangers of trafficking.
In countries of destination NHRIs should advocate measures which reduce the demand for illegal labour, including encouraging governments to prosecute traffickers and employers who exploit irregular migrants. NHRIs should also conduct community education campaigns so that people are aware of the problem of the exploitation of illegal workers, the deprivations that motivate people to leave their country, and the need to identify and help trafficking victims. In particular, NHRIs need to advocate for effective victim support programs to help alleviate fears that the authorities’ only response to an irregular migrant who reports a human rights abuse will be a deportation order.
Some states – including Australia –hold irregular migrants and asylum seekers in administrative detention. In these states NHRIS can play a crucial role in monitoring the human rights situation of irregular migrants in immigration detention centres. Where NHRIs have the power to do so, they should investigate individual complaints of human rights violations in immigration detention or conduct inquiries into systemic problems.
NHRIs can share
information and expertise about preventing human rights with governments, NHRIS
and NGOs. NHRIs who have developed expertise on identifying trafficking victims
or forced labour should offer training for agencies working with irregular
migrants. HREOC has provided country level training in anti-trafficking
activities through bilateral technical cooperation programs, including the
China-Australia Human Rights Technical Program (HRTC).
Preventing human rights abuses of irregular migrants is a complex, daunting and difficult task. But, in a world where the levels of international – and irregular – migration continue, the problem of human rights abuses of irregular migrants must be addressed. So far, state Party efforts to address irregular migration have paid to little attention human rights. The immediate challenge for NHRIs is to persuade states to address irregular migration in a human rights framework.
 In 2005 the Global Commission on International Migration reported that “in recent years, many states, particularly the more prosperous ones, have devoted billions of dollars to a variety of border control techniques”. See further The Global Commission on International Migration, Migration in an interconnected world: new directions for action: the report of the Global Commission on International Migration, The Global Commission on International Migration, October 2005.
 See further ‘Report on the human rights of migrants submitted by the Special Rapporteur of the Commission on Human Rights’ at the 58th session of the UNGA, A/58/275.
 G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49
(1990), entered into
force 1 July 2003. The Convention on the Rights of Migrant workers has 34
parties and 27 signatories; the majority of whom and countries of transit and
origin. Algeria, Azerbaijan, Belize, Bolivia, Bosnia and Herzegovina, Burkina
Faso, Cape Verde, Chile, Colombia, Ecuador, Egypt, El Salvador, Ghana,
Guatemala, Guinea, Honduras, Kyrgyzstan, Lesotho, Libyan Arab Jamahiriya, Mali,
Mexico, Morocco, Nicaragua, Peru, Philippines, Senegal, Seychelles, Sri Lanka,
Syrian Arab Republic, Tajikistan, Timor-Lest, Turkey, Uganda and Uruguay have
all ratified the Convention.
 See Art. 68 Convention on the Protection of the Rights of All Migrant Workers and their Families.
 The Refugee Convention recognises that where persons are in fear for their life or freedom they may be forced to enter a country of refuge unlawfully. Article 31 of the Convention prohibits nations from penalising refugees on account of their illegal entry where they are ‘coming directly from a territory where their life or freedom was threatened’.
See further A global alliance against forced labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2005, International Labour Office, Geneva, 2005; see also the preamble of the Convention on the Rights of All Migrant Workers which recognizes the particular vulnerability of irregular migrants to unfavourable treatment compared to other workers.
 Ibid. The ILO estimates there are 12.3 million people in forced labour at any given time, including more than 2.4 million victims of human trafficking.
 Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention
Against Transnational Organized Crime, G.A. Res. 25, annex II, U.N. GAOR,
55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001), entered into force Sept. 9,
 Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Crime, G.A. Res. 55/25, annex III, U.N. GAOR, 55th Sess., Supp. No. 49, at 65, U.N. Doc. A/45/49 (Vol. I) (2001), entered into force Jan. 28, 2004.
 The International Covenant of Civil and Political Rights (ICCPR) protects the rights of ‘all individuals within its jurisdiction’ regardless of their immigration status (see Art 2(1)); The ICCPR also provides for the principle of non-discrimination (Art. 26). The principle of non-discrimination is also protected by Art. 2 of the Convention on the Rights of All Migrant Workers.
In October 2003, the Australian Government announced a $20 million package of measures to deter, detect, investigate and prosecute people trafficking offences. In 2005 Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth) introduced a range of new offences criminalizing all forms of trafficking into the Commonwealth Criminal Code.
 The Convention on the Rights of All Migrant Workers requires all states, including transit states, to cooperate in detecting, preventing and eradicating irregular migration workers and eliminating the employment of irregular migrants.
For example, in 2004, HREOC made submissions to the Parliamentary Committees about proposed new anti-trafficking laws. Many of the Commission’s recommendations were adopted by the Committee in its report and reflected in the anti-trafficking laws that were enacted in 2005.
 In Australia, HREOC visits
immigration detention centres on a regular basis to monitor the human rights of
irregular migrants and asylum
 For example, in Australia, HREOC has a statutory power to investigate complaints of human rights abuses by the Commonwealth. Although this procedure does not provide for enforceable remedies, the Commission’s report must be tabled in Parliament. Another way HREOC monitors Australia’s compliance with its international human rights obligations is to conduct inquiries. In 2004 HREOC published A Last Resort? A National Inquiry into Children in Immigration Detention. The report is available online at http://www.humanrights.gov.au/human_rights/children_detention/index.html.