Juan Amaya-Castro argues that states’ selective immigration policies are discriminatory, and that this discrimination has been legitimized by international (migration) law. From a legal point of view, this is rather a misperception that confuses differential with discriminatory treatment. The latter is not allowed by contemporary international law as this post will show.
International migration law is not a self-contained legal regime. It is a multi-layered body of law consisting of various international, regional or bilateral treaties and agreements which leave “the alien’s body protected by a varying number of layers (legal regimes) depending upon the sartorial tastes of the State involved” (Richard Lillich, The Human Rights of Aliens in Contemporary International Law, Manchester UP, 1984, 122). Some of the most migrant-protective layers are certainly those provided by international and European human rights law and principles.
As regards migrants’ entry, the UN Human Rights Committee in its 1986 General Comment No 15 noted that the International Covenant on Civil and Political Rights
“does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”.
This is true also under another core law-making treaty, the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court (see below).
Differential treatment of migrants does not always equal discrimination
Migration control measures that differentiate among (prospective) migrants are not automatically unlawful. Whether such state action affecting migrants constitutes discrimination is grounded in the principle of prohibition of discrimination enshrined notably in Article 14 ECHR and in Protocol No. 12 to the ECHR. Non-discrimination grounds indicatively enlisted therein are: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Read the rest of this entry…