Prohibition of Discrimination

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The Human Rights of Migrants as Limitations on States’ Control Over Entry and Stay in Their Territory

May 21, 2015

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition? This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative…

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Why International Migration Law Does Not Give a License To Discriminate

May 20, 2015

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…

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The Iranian Charter of Citizens’ Rights

December 10, 2013

 Nazila Ghanea teaches international human rights law at the University of Oxford. 100 days into his presidency, Iranian President Hassan Rohani delivered a partial result on the nuclear issue (see EJIL:Talk! discussion by Dan Joyner)and released his draft Charter of Citizens’ Rights (henceforth ‘the Charter’) on 26 November 2013. Though the Presidential…

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CERD and Hate Speech

April 19, 2013

An important case on hate speech was recently decided by the CERD Committee, TBB v. Germany, dealing with the intersection or conflict between the prohibition of racial discrimination and the freedom of expression (thanks to Marty Lederman for the pointer). The case concerned an interview given by a Mr Sarrazin in a journal that contained derogatory and offensive…

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The European Court of Human Rights Gets It Right: A Comment on Eweida and Others v the United Kingdom

January 19, 2013

Dr Erica Howard is senior lecturer in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012). The European Court of Human Rights has delivered its Chamber judgment in the case of Eweida and…

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