RES/9/5 Human rights of migrants

Human Rights Council

Resolution 9/5. Human rights of migrants

The Human Rights Council,

Reaffirming the Universal Declaration of Human Rights on its sixtieth anniversary, which

proclaims that all human beings are born free and equal in dignity and rights and that everyone is

entitled to all the rights and freedoms set out therein, without distinction of any kind, in

particular with regard to race, colour or national origin,

Recalling previous resolutions adopted by the Commission on Human Rights and

the General Assembly on the protection of migrants,

Recalling also the provisions concerning migrants contained in the outcome documents of

all major United Nations conferences and summits,

Considering that every State must ensure the protection of human rights of all individuals

within its territory and subject to its jurisdiction, without discrimination of any kind, including

in particular on the basis of national origin,

Recalling the judgment of the International Court of Justice of 27 June 2001 and advisory

opinions OC 16/99 of 1 October 1999 and OC 18/03 of 17 September 2003, issued by the

Inter-American Court of Human Rights, on the right to information on consular assistance in the

framework of the guarantees of the due process of law and on the juridical condition and rights

of undocumented migrants, respectively,

Taking note of the judgment of the International Court of Justice of 31 March 2004 in the

case of Avena and Other Mexican Nationals (Mexico v. United States of America) and recalling

the obligations of States reaffirmed therein, as well as in the subsequent rulings of the

International Court of Justice following that judgment,

Concerned at the large and growing number of migrants, especially women and children,

who attempt to cross international borders without the required travel documents, which places

page 2 them in a particularly vulnerable situation, and recognizing the obligation of States to respect the

human rights of those migrants,

Recognizing the increasing participation of women in international migration movements,

Deeply concerned at the manifestations of violence, racism, racial discrimination,

xenophobia and other forms of intolerance and inhuman and degrading treatment against

migrants, especially women and children, in different parts of the world,

Recalling the High-level Dialogue on International Migration and Development, held

pursuant to General Assembly resolution 58/208 of 23 December 2003, in New York on 14 and

15 September 2006, for the purpose of discussing the multidimensional aspects of international

migration and development, which recognized the relationship between international migration,

development and human rights,

Noting the adoption of resolution 62/270 by the General Assembly on the Global Forum on

Migration and Development in which, inter alia, the Assembly recognizes that exchanges of

information and expertise, consultation and closer cooperation between the Global Forum on

Migration and Development and the United Nations could have a positive impact,

Recognizing the role of migrants in positive interaction, particularly in social and cultural

fields between the countries of migration, and their contribution to the promotion of international

ties,

Recognizing also the cultural and economic contributions made by migrants to receiving

societies and their communities of origin and committing to ensure dignified, humane treatment

with applicable protections and to strengthening mechanisms for international cooperation,

Emphasizing the global character of the migratory phenomenon, the importance of

international, regional and bilateral cooperation and the need to protect the human rights of

migrants, particularly at a time in which migration flows have increased in the globalized

economy and take place in a context of new security concerns,

Bearing in mind that policies and initiatives on the issue of migration, including those that

refer to the orderly management of migration, should promote holistic approaches that take into

page 3 account the causes and consequences of the phenomenon, the full respect of human rights and

the fundamental freedoms of migrants,

Resolved to ensure respect for the human rights and fundamental freedoms of all migrants,

1. Reaffirms the rights set forth in the Universal Declaration of Human Rights, and in

this regard:

(a) Strongly condemns the manifestations and acts of racism, racial discrimination,

xenophobia and related intolerance against migrants and the stereotypes often applied to them,

and urges States to apply existing laws when xenophobic or intolerant acts or manifestations or

expressions against migrants occur, in order to eradicate impunity for those who commit

xenophobic and racist acts;

(b) Requests States to effectively promote and protect the human rights and fundamental

freedoms of all migrants, especially those of women and children, regardless of their

immigration status, in conformity with the Universal Declaration of Human Rights and the

international instruments to which they are party;

(c) Expresses concern at legislation and measures adopted by some States that may

restrict the human rights and fundamental freedoms of migrants, and reaffirms that, when

exercising their sovereign right to enact and implement migratory and border security measures,

States have the duty to comply with their obligations under international law, including

international human rights law, in order to ensure full respect for the human rights of migrants;

(d) Calls upon States to observe national legislation and applicable international legal

instruments to which they are party when enacting national security measures, in order to respect

the human rights of migrants;

(e) Takes note of action taken by several special procedures of the Council towards the

effective prevention of violations of human rights of migrants, including through joint

statements, and encourages them to continue with their collaborative efforts to this end within

their respective mandates;

page 4 (f) Calls upon States that have not done so to consider signing and ratifying or acceding

to the International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families as a matter of priority, and requests the Secretary-General to

continue his efforts to promote and to raise awareness of the Convention;

2. Also reaffirms the duty of States to effectively promote and protect the human rights

and fundamental freedoms of all migrants, especially those of women and children, regardless of

their immigration status, in conformity with the Universal Declaration of Human Rights and the

international instruments to which they are party, and therefore:

(a) Urges all States to adopt effective measures to put an end to the arbitrary arrest and

detention of migrants and to take actions to prevent and punish any form of illegal deprivation of

liberty of migrants by individuals or groups;

(b) Takes note with appreciation of States that have successfully implemented

alternative measures to detention for undocumented migrants and requests the Special

Rapporteur, other special procedures of the Council and the High Commissioner for Human

Rights to pay special attention to cases of arbitrary detention of migrants, particularly of migrant

children and adolescents;

(c) Requests States to adopt concrete measures in order to prevent the violation of the

human rights of migrants while in transit, including in ports and airports and at borders and

migration checkpoints, and to train public officials who work in those facilities and in border

areas to treat migrants and their families respectfully and in accordance with the law;

(d) Also requests States to prosecute, in conformity with applicable law, any act of

violation of the human rights of migrants and their families, inter alia, arbitrary detention, torture

and violations of the right to life, including extrajudicial executions during their transit from their

country of origin to the country of destination and vice versa, including their transit through

national borders;

(e) Reaffirms emphatically the duty of States parties to ensure full respect for and

observance of the Vienna Convention on Consular Relations, particularly with regard to the right

of foreign nationals, regardless of their immigration status, to communicate with a consular

page 5 official of their own State in the case of detention, and the obligation of the State in whose

territory the detention occurs to inform the foreign national of that right;

(f) Requests all States, in conformity with national legislation and applicable

international legal instruments to which they are party, to prosecute violations of labour law

firmly with regard to migrant workers’ conditions of work, inter alia, those related to their

remuneration and conditions of health, safety at work and the right to freedom of association;

(g) Encourages all States to remove unlawful obstacles that may prevent the safe,

unrestricted and expeditious transfer of earnings, assets and pensions of migrants to their country

of origin or to any other countries, in conformity with applicable legislation, and to consider, as

appropriate, measures to solve other problems that may impede such transfers;

(h) Welcomes the adoption by the World Health Organization of its resolution

WHA61.17 on the health of migrants, and calls upon States to take it into account as a measure

for the progressive realization of the right of everyone to the enjoyment of the highest attainable

standard of physical and mental health;

(i) Recalls that the Universal Declaration on Human Rights recognizes that everyone

has the right to an effective remedy by the competent national tribunals for acts violating the

fundamental rights granted to him or her;

3. Emphasizes the importance of protecting vulnerable groups, and in this regard:

(a) Welcomes the immigration programmes, adopted by some countries, that allow

migrants to integrate fully into the host countries, facilitate family reunification and promote a

harmonious and tolerant environment, and encourages States to consider the possibility of

adopting that type of programme;

(b) Encourages all States to apply a gender perspective in developing international

migration policies and programmes in order to adopt the necessary measures to better protect

women and girls against dangers and abuse during migration;

(c) Calls upon States to protect the human rights of migrant children, given their

vulnerability, particularly unaccompanied migrant children, ensuring that the best interests of the

page 6 children are a primary consideration in their policies of integration, return and family

reunification;

(d) Encourages all States to prevent and eliminate discriminatory policies that deny

migrant children access to education;

(e) Urges States to ensure that repatriation mechanisms allow for the identification and

special protection of persons in vulnerable situations, including persons with disabilities, and

take into account, in conformity with their international obligations and commitments, the

principle of the best interest of the child and family reunification;

(f) Encourages States that have not yet done so to enact domestic legislation and to take

further effective measures to combat and prosecute international trafficking and smuggling of

migrants, and to protect and assist the victims of violence and trauma in such processes, and also

encourages States parties to implement fully their obligations under the United Nations

Convention against Transnational Organized Crime and the two additional Protocols thereto;

4. Stresses the importance of international, regional and bilateral cooperation in the

protection of the human rights of migrants, and therefore:

(a) Requests all States, international organizations and relevant stakeholders to take into

account in their policies and initiatives on migration issues the global character of the migratory

phenomenon and to give the necessary relevance to international, regional and bilateral

cooperation in this field, with a view to addressing, in a comprehensive manner, its causes and

consequences and granting priority to the protection of human rights of migrants;

(b) Encourages States to consider participating in international and regional dialogues on

migration that include sending and receiving countries, as well as countries of transit, and invites

them to consider negotiating bilateral and regional agreements on migrant workers in the

framework of applicable human rights law and designing and implementing programmes with

States of other regions to protect the rights of migrants;

(c) Calls upon States and intergovernmental and non-governmental organizations to

observe International Migrants Day on 18 December of each year, proclaimed by the

page 7 General Assembly, by adopting measures to ensure their protection and to promote greater

harmony between migrants and the societies in which they live;

(d) Notes the first meeting of the Global Forum on Migration and Development, held in

Brussels, in July 2007, and the second meeting of the Global Forum to be held in Manila, in

October 2008, and recognizes the inclusion of a discussion of a discussion on migration,

development and human rights as a step to address the multidimensional nature of international

migration;

(e) Requests Member States, the United Nations system, international organizations,

civil society and all relevant stakeholders, especially the United Nations High Commissioner for

Human Rights and the Special Rapporteur on the human rights of migrants, to ensure that the

perspective of the human rights of migrants is included among the priority issues in the ongoing

discussions on international migration and development in the United Nations system, bearing in

mind the discussions of the High-level Dialogue on International Migration and Development;

(f) Encourages the Special Rapporteur to continue to examine ways and means of

overcoming obstacles to the full and effective protection of the human rights of migrants,

including national and international efforts to combat the trafficking of persons and smuggling of

migrants, in order to achieve a better comprehension of the phenomena and to avoid practices

that could violate the human rights of migrants;

5. Decides to continue consideration of this question at a future session in conformity

with its annual programme of work.

-----