Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 53
less of nationality. From the moment migrants enter the State’s jurisdiction,
territorial or extraterritorial, the State has a duty to respect all
their human rights and to protect them from impairment of their rights
from third parties that may occur in the entry process, or in the case of
irregular migrants, on their interception on entry to the territory. This
means that, for example, irregular migrants entering or attempting to
enter the territory must not be arbitrarily deprived of life by agents of
the State; 52 and that the State has positive obligations to take measures
within its power to protect migrants from arbitrary deprivation of life or
ill-treatment by third parties, including private actors, on entry to the
territory (for example in cases of trafficking or smuggling). This means
that where irregular migrants are apprehended by the authorities, they
must not be subjected to physical or psychological treatment amounting
to torture or other cruel, inhuman or degrading treatment, including the
use of excessive physical restraint, or excessive and inappropriate body
searches, or compulsory medical testing, and that their rights to health
and adequate food while in detention must be guaranteed.
Nevertheless, international human rights law affords limited procedural
protection to migrants entering a country: in particular, the right to a
fair hearing is unlikely to apply to decisions on entry to the territory. It
has been expressly excluded by the European Court of Human Rights
in relation to decisions regarding other aspects of immigration control, 53
while the UN Human Rights Committee has left the question open. 54
Granting of entry must not infringe the protection from discrimination on
grounds of race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. 55 This protection
is enshrined in Article 2.1 ICCPR, read together with Article 13
ICCPR and Article 26 ICCPR (general clause on non-discrimination) as
well as in other universal and regional human rights treaties. 56 Both
52 This also applies to migrants in border zones who have not yet entered the territory but are
close enough to be within its agents’ authority and control and therefore within its jurisdiction—e.g.
within firing range of border guards—see, Solomou and Others v. Turkey, ECtHR,
op. cit., fn. 49.
53 Maaouia v. France, ECtHR, GC, Application No. 39652/98, Judgment of 5 October 2000, para. 37.
54 Adu v. Canada, CCPR, Communication No. 654/1995, Views of 28 December 1994.
55 CCPR, General Comment No. 15, op. cit., fn. 30. See, Aumeeruddy-Cziffra and 19 other
Mauritian women v. Mauritius, CCPR, Communication No. 35/1978, Views of 9 April 1981
(Mauritian Women Case), on discrimination based on sex.
56 The principle of non-discrimination is enshrined in Article 2.1 UDHR; Articles 2.1 and 26 ICCPR;
Article 2.2 ICESCR; Article 1 ICERD; Article I CEDAW; Article 2.1 CRC; Article 1.1 ICRMW; Article
4, Convention on the Rights of Persons with Disabilities (CRPD); Article 14 ECHR; Article E,
ESC(r); Article II, American Declaration on the Rights and Duties of Man (ADRDM); Article 1.1
ACHR; Article 3, Protocol of San Salvador; Article 2 ACRWC. However, the principle of non-discrimination
does not mean that the State cannot differentiate among different categories of
migrants when there is a reasonable ground of justification, e.g. the need to hire people of
a certain expertise instead of others. See further, in relation to discrimination in expulsion,
Chapter 3 section II.1.e., and, CCPR, General Comment No. 15, op. cit., fn. 30, paras. 9–10.