The International Commission of Jurists (ICJ) – an international, non-governmental organization of judges and lawyers – recently made public the final version of its Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants (the Principles), which provide guidance to judges, lawyers, legislators, and other government officials in securing the human rights of migrants and refugees. [ICJ: Advocacy] The ICJ, which promotes human rights and strengthens human rights standards and systems, developed the Principles, with input from stakeholders, to be a guide on the implementation of existing international binding instruments and United Nations guidance on the protection of migrants in the context of large or mixed movements. [ICJ: News] Accordingly, the Principles rely on international binding instruments and non-binding guidance as explained throughout the Principles and in a list of sources at the end of the document. The Principles support migrants and refugees’ rights to a lawyer, fair procedures during removal, and redress for human rights violations, and they emphasize that judges should know of and uphold international human rights standards. See ICJ, Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants (2017). They were developed taking into account the dire situation that refugees and migrants face in various regions of the world, including Europe, the Americas, Asia, parts of Sub-Saharan Africa, and, most notably, North Africa and the Middle East. [ICJ: Advocacy]
A published version of the Principles will be launched during a side event to the June 2017 session of the Human Rights Council and were released last week during the UN General Assembly Preparatory Process for the Global Compact for Safe, Orderly and Regular Migration on May 8 and 9, 2017, to assist in the development of that global compact, which is currently in a consultation phase and will be launched in 2018. [ICJ: Advocacy; IISD]
Development of the Principles
The Principles were developed after several consultations, including the 2016 ICJ Geneva Forum of Judges and Lawyers, which took place during the March 2016 session of the Human Rights Council, and the 7th annual Geneva Forum of Judges and Lawyers in November 2016, which brought together senior judges, lawyers, and legal scholars working in the field of international refugee and migration law. [ICJ: News] They are also based on ICJ’s global research and expertise. See ICJ, Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants (2017).
The Principles were developed in response to the large movement of people to Europe from North Africa and the Middle East, including Syria, Iraq, Afghanistan, and Eritrea; to the United States from Central and South America; within Sub-Saharan Africa; and throughout Asia. [ICJ: News] They address the role of the executive, legislative, and judicial branches in ensuring that the rights of migrants and refugees are upheld and implemented, specifically with regard to procedural guarantees. See ICJ, Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants (2017), 1. Importantly, the Principles define the term “refugees and migrants” broadly to include, without limitation, the following: asylum seekers, stateless persons, victims of human trafficking, unaccompanied or separated children, and other persons in the context of migration, regardless of whether a State considers a person’s entry into the county “regular or irregular.” See id.
The Principles are divided into sections addressing, first, the role of judges and lawyers in relation to determinations of entitlement to international protection, which includes support for safeguarding fairness in proceedings, access to an effective appeal, and the right to a competent lawyer; second, deprivation of liberty, which, according to the Principles, must be subject to a timely and automatic judicial review; third, removals and the right to a fair procedure and to a lawyer prior to removal; fourth, effective remedy and access to justice, which migrants and refugees, the Principles state, have a right to at all times for human rights violations; fifth, independence, impartiality, and equality before the law, which judges and lawyers should ensure, according to the Principles; and, sixth, conflicts between national judiciaries and international law. See ICJ, Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants (2017). In the last section, the Principles elaborate that judges should know of international human rights standards and be aware that acting in opposition to those standards puts the State in violation of international law. See id. at 20. The Principles also advocate for non-discrimination, fair and effective process of status determination, and the State’s obligation to uphold human rights regardless of whether the individuals concerned are part of a large movement of migrants and refugees. See id. at 2-5.
The ICJ emphasized that one of the goals of the Principles is to give effect to the rights enshrined in relevant international instruments. Specifically, it noted that the Principles seek to guide the implementation of rights in the Universal Declaration of Human Rights; the Convention Relating to the Status of Refugees and its Protocol; the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Protection of the Rights of All Migrant Workers and Member of Their Families; and the New York Declaration for Refugees and Migrants. See ICJ, Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants (2017), 1.
The ICJ highlighted that the rights enshrined in relevant international instruments cannot be implemented without “access to institutional machinery for enforcement at the national level.” The Principles seek to fill this gap by guiding lawyers and judges in ensuring that legal assistance to migrants and refugees is accessible, independent, and competent, and that judicial institutions remain independent and impartial with regard to migrants and refugees. In short, the ICJ emphasized that lawyers and judges play an essential role in ensuring equal and effective access to the courts and in enforcing the human rights of migrants domestically—key elements in the implementation of international human rights instruments. See ICJ, Submission of the ICJ: First informal thematic session “Human rights of all migrants” in the process for a Global Compact for safe, orderly and regular migration (2017).
Generally, migrants enjoy the same fundamental human rights equally with other persons under international human rights standards. Importantly, the Human Rights Committee – the monitoring body of the ICCPR – has found that with the exception of the right to political participation, every right within the ICCPR applies to migrants, including the right to life, the right to non-discrimination, the right to liberty, and the right to prohibition of torture. Additionally, under international law, migrants have the rights to non-refoulement, freedom from slavery or forced labor, prohibition of collective expulsion, and procedural safeguards in expulsion proceedings. Non-refoulement refers to the right not to be returned to a territory where the individual’s life or freedom is threatened due to race, religion, nationality, political opinion, or membership in a particular social group. See IJRC, Immigration & Migrants’ Rights.
The ICJ’s aim is to enforce and protect human rights through the rule of law by ensuring the independence of judges and lawyers. See ICJ, About. It is headquartered in Geneva, Switzerland and is composed of up to 60 attorneys, judges, and academics (referred to as the Commissioners) dedicated to ensuring the respect for international human rights standards. The Commissioners are from all over the world and aim to reflect geographical and legal-system diversity. See ICJ, Commission.
The ICJ has set out five strategic goals in its 2016-2020 Strategic Plan, which include the independence of judges and lawyers, access to justice for all, accountability for human rights violations and abuses, rule of law and international human rights standards and instruments, and domestic implementation and compliance. See ICJ, About. The ICJ regularly publishes reports and interpretations on international human rights legal standards, the status of the judiciary or justice system in specific States, and related topics, including the ICJ’s Updated 2014 Practitioners’ Guide on Migration and International Human Rights Law and Practitioners’ Guide on Refugee Status Claims Based on Sexual Orientation and Gender Identity.