Uprootedness and the protection of migrants in the international law of human rights
| Páginas | 391-430 |
Capítulo XIII
UPROOTEDNESS AND THE
PROTECTION OF MIGRANTS
IN THE INTERNATIONAL LAW
OF HUMAN RIGHTS1
Summary: I. Preliminary Observations. II. e Drama of Uprootedness
and the Growing Need of Protection of Migrants. III. Basic Principles on
Internal Displacement. 1. Global (United Nations) Level. 2. Regional Level.
IV. Basic Principles on Migrations. V. e Protection of Migrants in Inter-
national Case-Law. 1. European Human Rights System. 2. Inter-American
Human Rights System. a) e Advisory Opinion on the Right to Informa-
tion on Consular Assistance in the Framework of the Due Process of Law
(1999). b) e Advisory Opinion on the Juridical Condition and Rights of
Undocumented Migrants (2003). VI. e Protection of Migrants in Rappor-
teur Systems. VII. Social Justice and the Prevention of Forced Migrations:
e Legacy of United Nations World Conferences. VIII. Final Reections
on the Matter.
I. PRELIMINARY OBSERVATIONS.
May I start this inaugural lecture of the 2007 Annual Study Session by
evoking my historical and sustained links of deep aection with the Inter-
national Institute of Human Rights here in Strasbourg. Precisely here, in this
same auditorium Carré de Malberg of the University of Strasbourg, I had the
honour to receive, in 1974, from the hand of René Cassin himself, my Diploma
of the Institute. Again in this same auditorium, I was welcomed, in 1997, as
newly-elected member of the Institut de Droit International. I have had the
privilege to have known, and to have accompanied the work, along more than
1 Inaugural Lecture delivered by the Author, at the opening of the XXXVIII Annual Study
Session of the International Institute of Human Rights, in Strasbourg, France, on 02 July
2007; originally published, in English, in: in Dossier Documentaire/Documentary File –
XXXVIII Sessiond’Enseignement (2007), vol. I, Strasbourg, IIDH, 2007, pp. 3-47; and, in
French, in: 19 Revue trimestrielle des droits de l’homme – Bruxelles (2008) n. 74, pp. 289-328.
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ANTÔNIO AUGUSTO CANÇADO TRINDADE
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the last three decades, of all the successive Presidents and Secretaries-General
of the International Institute of Human Rights, of whom I remained a faith-
ful and constant collaborator from the other side of the Atlantic. One of them
has recently passed away (last 22 March 2007), Professor Alexandre-Charles
Kiss, a visionary and inspiring jurist, to the memory of whom I allow myself
to render tribute on this occasion. is auditorium being full of history of the
Strasbourg Institute, and of my own academic life, it is not without emotion
that I deliver this inaugural lecture.
May I at rst express a rm warning against the negative eects of the
fact that, in a “globalized” world – the new euphemism en vogue, – frontiers
are opened to capitals, goods and services, but regrettably not to human be-
ings. National economies are opened to speculative capitals, at the same time
that the labour conquests of the last decades erode. Increasing segments of
the population appear marginalized and excluded from material “progress”.
Lessons form the past seem forgotten, the suerings of previous generations
appear to have been in vain. e current state of aairs appears devoid of a
historical sense. To this de-historization of the lifetime are added the idolatry
of the market, reducing human beings to mere agents of economic production
(ironically, amidst growing unemployment in distinct latitudes).
As a result of this new contemporary tragedy – essentially a man-made
one, – perfectly avoidable if human solidarity were to have primacy over indi-
vidual egoism, there emerges and intensies the new phenomenon of massive
ows of forced migration, – of millions of human beings seeking to escape no
longer from individualized political persecution, but rather from hunger and
misery, and armed conicts, – with grave consequences and implications for
the application of the international norms of protection of the human person.
One decade ago, in a study I prepared for the Inter-American Institute
of Human Rights (in Costa Rica, in 1998), published in 2001 in Guatemala, I
propounded a human rights approach for the phenomenon of forced migra-
tory uxes, – distinctly from the classic studies on the subject (pursuant to a
strictly historical, or else economic, approach), – and with attention focused
on human beings experiencing great vulnerability2. On the occasion, I saw it
t to warn that
“e advances [in this domain] will only be achieved by means of a radical
change of mentality. In any scale of values, considerations of a humanitarian
order ought to prevail over those of an economic or nancial order, over
2 A.A. Cançado Trindade, Elementos para un Enfoque de Derechos Humanos del Fenómeno de
los Flujos Migratorios Forzados (Study of July 1998 prepared for the IIHR), Guatemala City,
OIM/IIDH, Sept. 2001, pp. 1-57.
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OS TRIBUNAIS INTERNACIONAIS E A REALIZAÇÃO DA JUSTIÇA
393
the alleged protectionism of the market of work and over group rivalries.
ere is, denitively, pressing need to situate the human being in the place
that corresponds to him, certainly above capitals, goods and services. is
is perhaps the major challenge of the `globalized’ world in which we live,
from the perspective of human rights”3.
In this inaugural lecture of the current Annual Study Session of 2007 of
the International Institute of Human Rights here in Strasbourg, I shall retake
the subject, which has become a topical one, with the purpose of identing
and gathering the elements, accumulated in recent years, that would allow to
advance further the aforementioned new approach, proper to human rights,
to the consideration of the contemporary phenomenon of forced migrations.
To this end, I shall seek to portray the drama of uprootedness and the growing
need of protection of migrants, and to identify the basic principles applicable
in this new domain of protection of the human person; and shall review the
growing international case-law on the matter (of both the European and the
Inter-American Courts of Human Rights, as well as other initiatives of protec-
tion at the United Nations and regional levels, the implications of the whole
issue for the responsibility of States, and its importance for the international
community as a whole. e path will then be opened for the presentation of
my nal reections on the matter.
II. THE DRAMA OF UPROOTEDNESS AND THE
GROWING NEED OF PROTECTION OF MIGRANTS.
It has been rightly warned that humankind can only achieve true progress
when it moves forward in the sense of human emancipation4. It is never to
be forgotten that the State was originally conceived for the realization of the
common good5. No State can consider itself to be above the Law, the norms of
3 Ibid., p. 26.
4 J. Maritain, Los Derechos del Hombre y la Ley Natural, Buenos Aires, Ed. Leviatán, 1982
(reimpr.), pp. 12, 18, 38, 43, 50, 94-96 and 105-108. To J. Maritain, “the human person
transcends the State”, for having “a destiny superior to time”; ibid., pp. 81-82. On the
“human ends of power”, cf. Ch. de Visscher, éories et réalités en Droit international public,
4th. rev. ed., Paris, Pédone, 1970, pp. 18-32 et seq..
5 By State it is here meant the State in a democratic society, that is, the State which respects
and ensures respect for human rights, is turned to the common good, and the public powers
of which, separated, abide by the Constitution and the rule of law, with eective procedural
guarantees of human rights and fundamental freedoms.
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