DISCRIMINATORY IMMIGRATION POLICIES WITHIN PUBLIC INTERNATIONAL

LAW

MARIA NATALIA DIAZ

GIAN CARLO CELIA
PABLO QUIÑONES

COLEGIO MAYOR NUESTRA SEÑORA DEL ROSARIO

BOGOTA D.C
2019
I. INTRODUCTION.

Humans all around the world migrate due to different reasons, such as, seeking for
better economic opportunities, better healthcare, reuniting with family or maybe
scaping from an internal conflict. States maintain a series of discretions towards the
migrant`s entry and exit of their territory, human rights must be applied into these
discretions.

International law gives a broad framework of rules, that nations must obey when it
comes to their application of migratory policies. Some of these regulations are within
the UN Human Rights Committee in it`s 1986 General comment number 15 noted that
the International Covenant on Civil and Political Rights:
“Does not recognize the right of aliens to enter or reside in the territory
of a State party. It is in principle a matter for the State to decide who it will admit
to it`s territory. However, in certain circumstances an alien may enjoy the
protection of the Covenant even in relation to entry or residence, for example
when considerations of non-discrimination, prohibition of inhuman treatment
and respect for family life arise”

An alien being defined as a person belonging to a foreign country, who probably will
become an immigrant eventually.
Also Article 14 of the ECHR enlists the Non-discrimination grounds, which are:

“sex, race, colour,language, religion, political or other opinion, national

or social origin, association with a national minority, property, birth or other
status”.

Even through international public law doesn’t contemplate discriminatory treatment

towards aliens, it does allow differential treatment, based on the affirmation by judge
Tanaka “to treat different matters equally in a mechanical way would be as unjust as
to treat equal matters differently”
Later on, in 1968 in the Belgian Linguistics Case, the European court stated that the
principle of equality of treatment is violated if the “distinction has no objective and
reasonable justification”
Immigrants must have the following rights:
● · Right to life.
● · Right of equality and non-discrimination.
● · Right of protection against arbitrary arrest and detention.
● · Right of protection against torture or inhuman treatment.
● · Right of non-refoulement.
● · Right of prohibition against collective expulsion.
● · Procedural safeguards in individual expulsion proceedings.
● · Family rights.
● · Right of protection against labor exploitation.

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 ● · Right to social security.
● · Right to highest attainable standard of physical and mental health.
● · Right to primary education.
● · Freedom of movement.
● · Right to enjoy culture in community with others.
The United Nations human rights office of the high commissioner recognizes the
particular vulnerability of migrants and their families to discrimination, due to this
problematic in the Review Conference for the World Conference against Racism,
Racial discrimination, Xenophobia, and related intolerance, stated that:

“to take measures to combat the persistence of xenophobic attitudes towards

and negative stereotyping of noncitizens, including by politicians, law
enforcement and immigration officials and in the media, that have led to 85
xenophobic violence, killings and the targeting of migrants, refugees and
asylum-seekers (para. 76).”

After observing the sketch international public law makes to put some barriers to
nations, with the goal of protecting aliens right, we can state that international law does
not give a license to discriminate in it`s content, it actually prevents it to happen. But it
does allow differential treatment, but this must be an exception to it`s equality principle.
So international law demands to the States that apply diferential treatment it`s “raison
d’être and reasonableness”.
There are some ground rules that must be respected such as race, sex and nationality.
These rules have been reminded in these cases:
● · East African Asians vs Uk. (race)
● · Abdulaziz , Cabales and Balkandali vs Uk. (sex)
● · Hode and Abdi vs Uk. (Nationality)

“In conclusion, the claim that international (migration) law gives states a free
hand to discriminate is not watertight. It certainly still grants states a margin of
appreciation and license for differential treatment. However, under the European
Court of Human Rights’ case-law, any such treatment affecting migrants has to
be in conformity with the fundamental principle of equality, that is, to be
legitimate, reasonably proportionate and justified by “very weighty reasons”. In
this context, the Court has rightly applied a particularly strict review in cases
concerning ‘suspect’ discrimination grounds relating to one’s race, sex or
nationality, which refer to innate personal characteristics. These standards of
European human rights law arguably constitute the most protective layer of
international migration law.”1

1
EJIL TALK, Nikolaos Sitaropoulos, Why international public law does not give a license to
discriminate, United kingdom. United Kingdom. Blog of the European journal of international public
law.

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Even through in principle international law does not allow discrimination some issues
around the globe may prove the contrary, and may reinforce the idea some people
have that some States migratory policies select the “Knowledge migrants” by giving
those some certain benefits, to achieve a more attractive image to investors and
entrepreneurs, while at the same time putting more difficulties and trying to avoid the
entrance of less wanted migrants. The inequitable treatment starts by qualifying the
migrants by “dreamers” and “prospectless”.

It is also important to remind that international law is a self-contained regime,

composed by various layers of treaties, so it means that if the nation you are
attempting to migrate isn't a party of one of those treaties, maybe you won't get the
same level of protection as in another case, some of the most protected countries are
in Europe as the most extense regulations are provided by the international and
European human right and principles.

Due to these theories, we decided to make our paper, as an attempt to illustrate the
problematic in some migratory regulations, by exposing some cases in which we
consider a discriminatory treatment has been applied.

Also, one of the principal sources of racial discrimination contemporary is xenophobia.

This is often reflected in their opportunities of education, housing, Job, etc. In the other
hand, there is an in increased tendency to criminalize immigrants offenses, that
incriminalization, in some cases, has resulted, in violations of immigrants human
rights. One of the main obstacles when reinforcing migrants into the host societies is
persistent anti immigrants feelings and discriminatory practices. Which are often being
backed up and reinforced by legislation, especially by those whose purpose is to
restrict migratory flow. Other issues such as economic crisis and the increasing
unemployment have made this situation more critical.

So nowadays immigrants are not only facing the conventional difficulties the process
may produce, but also the constant treatment as if they were committing a crime.

Venezuelan Immigration Crisis

Throughout our planet we find different examples of these migratory dilemmas with
which it is possible to make an explanation through them, as is the economic and
social problem that Venezuela is having for some years now, and that brings as a
consequence the migration of many of its citizens to different countries to achieve a
better life.

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In order to see the intensity of the problem Venezuela is going through, it is important
to bear in mind that since 2016 this crisis is beginning to be evident, which
Venezuelans are going through when the number of immigrants began to grow
impressively, given that in 2015, it was evident that a total of almost 650,000
Venezuelans lived abroad, such is the surprise that in 2018 and the sum of
Venezuelans abroad exceeds 2.3 million, so the intervention of international
authorities should be immediate and effective.

Last year, BBC magazine interviewed Eric L., deputy director of the Latin America
Program at the Wilson Center for Studies. Olson, who assured that thanks to this crisis,
the only one affected is not Venezuela, but also all the countries to which Venezuelans
have migrated, since many of these are going through complicated moments, and
outside of that he has to deal with Venezuelan migration, to which Olson says that the
effort is hard but we have to try to do what is possible in order to help all of them, he
also considers that this has been the worst migration crisis in the last 50 years,
because of the speed in which it has occurred.2

Based on the above, it is important to ask if it is legitimate, from any point of view, that
the countries to which they are migrating begin to exercise a type of control over
Venezuelans, given that by not controlling their entry, States ensure that their budget
is not the right one to meet the needs of migrants, and also lately there have been
cases in which Venezuelans have acted as criminals in order to get some money to
send their families in their country of origin.

This aspect has already been evident in many countries such as Ecuador and Peru,
where governments have stipulated that they will begin to request papers from anyone
who wants to cross the border due to the increasing migratory flow.

In the beginning in Ecuador, Venezuelans were allowed to enter only with their
identification, but since the end of 2018 they have begun to apply for passports. The
Ecuadorian government began to implement this strategy given that there have been
many cases of robbery and violence in which Venezuelans have been involved, so
that directly from the presidency the order was to make the strategy effective
immediately. Of course, the measure that will be implemented will only be applied to
Venezuelans, so it is interesting to find out if from this point a state can prohibit the
entry of migrants because they are from a certain country.3

2
BBC news mundo,Crisis de Venezuela: "El éxodo de los venezolanos es el mayor de Latinoamérica
en los últimos 50 años".(2018).BBC.https://www.bbc.com/mundo/noticias-america-latina-45291398.
Accessed 13 july 2019
3
Agencias.Ecuador y Perú blindan sus fronteras ante la migración de
venezolanos.(2018).Portafolio.https://www.portafolio.co/internacional/ecuador-y-peru-blindan-sus-
fronteras-ante-la-creciente-migracion-de-venezolanos-520192

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While it is true, as mentioned above, that many countries that receive Venezuelans do
not have the capacity to receive in such a big way, on the other hand, due to the
internal conflict in Venezuela, it is necessary to implement a strategy in order to
accommodate as many as possible.

It is for this reason that the UN urged Latin American countries to continue receiving
migrants, and yet it rejected the Ecuadorian government's demands to demand papers
only from Venezuelan citizens. The UN highlights the role of countries like Colombia,
which has received a little more than 1 million Venezuelans, and has already managed
to regularize more or less 800,000. Colombia denounces that the measure adopted
by Ecuador does not favor it, since the Ecuadorian border could stagnate due to the
lack of documents on the part of those who cross Colombia, in order to arrive at
Ecuadorian lands, reason why it is necessary that the Ecuadorian government
withdraw this measure, because clearly the Colombian government would be affected
with the reception of more Venezuelans that it cannot sustain.

In addition, in 2016 in New York City, United States, in the General Assembly of the
United Nations, the member states committed themselves in the "New York
Declaration for Refugees and Migrants," in which the states oblige themselves to
cooperate in an effective manner regarding migration.
Highlighting its third title, in which they highlight "Commitments in relation to migrants".
In the following, I quote numeral 41 of this declaration, which summarizes the main
commitments:

“41. We are committed to protecting the security, dignity and human

rights and fundamental freedoms of all migrants, regardless of their immigration
status, at all times. We will cooperate closely to facilitate and ensure safe,
orderly and regular migration, including return and readmission, taking into
account national legislation.”4

Clearly this numeral states what every State must do when every migrant is in the
situation of migrating to another country, regardless of the migratory status in which
they find themselves, in an orderly manner, and being handled by the respective legal
system of the country to which they are migrating.

Among the States that are part of this declaration is Ecuador, therefore it is committing
an infraction to the declaration that it signed, given that although it is true that it can
impose certain rules for migrants, it cannot deny them entry to their country, since they
must be accepted regardless of their current migratory status. For this reason, the UN,
through the competent body, must request the Ecuadorian government to immediately

4
New York Declaration for Refugees and Migrants .2016.Paragraph 41.

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cancel the imposed measure and to continue with the migratory aid to Venezuelans,
even though it is difficult to regulate it.

On the other hand it must be taken into account that the crisis has also affected the
Ecuadorian country due to the massive arrival of thousands of Venezuelans, so much
has been the problem that Ecuador has declared an emergency in 3 of its border
provinces.
In the magazine BBC Ecuador gives its reasons why it has begun to implement this
measure of applying for passports to all Venezuelans who wish to enter their country.
Among these reasons, he argues that the areas where migrants choose to enter are
very unsafe, since the presence of narco-traffickers and human trafficking are very
common in these areas. He also exposes that the provinces where Venezuelans arrive
do not have the necessary health infrastructure to attend to Venezuelans as they
should be treated, even so Ecuador does everything in its power to overcome this
crisis through which Venezuelan citizens pass.5

But what do Venezuelans think of this measure? All would like to have the privilege of
obtaining the passport that is required but regrettable circumstances occur in which it
is impossible for them to acquire it, initially because it is a document which is difficult
to access due to the high demand that this is having, and beyond that the long
procedure by which this must pass, which takes about a year to be delivered.
Therefore, it is very evident that the majority of those who are in the migration process
do not have the documents required by the Ecuadorian State.

Venezuelan migrants leave their country every day with the disappointment of having
to leave their homes due to the internal conflict they are going through. They walk
thousands of kilometers with the desire to find a new life, no matter how complicated
it may be, and also achieve the goal of providing a living for their families and for those
who for some reason could not leave their country of origin send them at least the
minimum so that they can survive for this period of time while the economic and social
crisis they are going through is overcome, so that they can return one day to their
country with the satisfaction that they were supported by millions of countries, even
when they were in their worst moments.

Finally, in view of the number of Venezuelans who have stagnated, affecting both
Colombia and Ecuador, the Ecuadorian government decided to implement strategies
in order to be able to accommodate as many migrants as possible. The Ministry of
Economic and Social Inclusion will make available a team of social workers and
psychologists, especially for vulnerable groups such as children, adolescents, the

5
Boris Miranda.Por qué Ecuador decidió exigir pasaporte a los miles de ciudadanos de Venezuela
que ingresan cada día en el país.(2018).BBC.https://www.bbc.com/mundo/noticias-america-latina-
45227142

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elderly or the disabled.6 International cooperation by the United Nations will also be
evident, since the United Nations undertook to provide fundamental inputs to supply
migrants and to provide them with basic information on what to do in such cases.

Now, in order to ask ourselves whether it is legitimate for a State to deny entry to a
citizen, bearing in mind that he or she is of a certain nationality, it should be noted that
it is an obvious violation of the human rights of the person, since no one can be
discriminated against regardless of his or her condition, as stated in the Universal
Declaration of Human Rights in article 1:

"Article 1 All human beings are born free and equal in dignity and rights
and, endowed as they are with reason and conscience, they must behave
fraternally towards one another.”7

It is important to emphasize the expression "to behave fraternally towards one

another", since this means that we must all act in cooperation with the people who
need it because we are all born equal before all States.
Therefore, the situation currently experienced with Venezuelans must be treated as
such and they must also be supported by every State to which they must migrate

Venezuelan citizens have been treated in a very discriminatory manner in the majority
of countries where they are migrating, that is to say, in addition to being denied entry,
those who do so are attacked with bombs due to the great xenophobia they are
experiencing, since the majority of the inhabitants of the countries to which they
migrate generalize as far as Venezuelans are concerned, and have a terrible view of
them, which is why anyone who has to do with this country is discriminated against
and even treated with violence. Since Venezuelans are looking to escape the violence
they are experiencing in their country and do not expect to reach other countries in
search of the same thing, so support for Venezuelans must be demonstrated both by
states and by competent international bodies.

United States of America

Migration policies bias

6
BBC News Mundo.Ecuador declara estado de emergencia en 3 provincias para brindar atención
humanitaria ante la masiva llegada de migrantes de
Venezuela.(2018).BBC.https://www.bbc.com/mundo/noticias-america-latina-45136098

7
Universal Declaration of Human Rights.1948.Article 1.

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Planet Earth is filled with a tapestry of different human beings. Different races,
nationalities, beliefs and backgrounds. What we sometimes fail to comprehend is no
matter the color of the skin of an individual or a certain nationality a certain person has
it can be considered as inferior or superior. For years discrimination and abuse has
impacted the world. United States has been called out for this type of behavior
numerous times not only years in the past por in recent times

In 2017 the president of the United States Donald J. Trump mandated a series of
executive orders which had as primary goal to enforce restrictions of seven or six
citizens from muslim-majority countries to enter the country. Actually when he was a
candidate on December 7, 2015 he called for "a total and complete shutdown of
Muslims entering the United States until our country's representatives can figure out
what is going on”

This case is just one of the many examples of discriminatory migration policies not
only implemented by United States of America but rather various countries around the
world.

The US Supreme court haad to rule on this case that was commonly called as Trump
Travel Ban. Specifically Iran, Libya, Somalia, Syria and Yemen from entering the US.
It also covers travellers from North Korea and certain government officials from
Venezuela. But lower courts had already allowed those provisions to take effect. The
U.S. supreme court decision reversed several other lower court rulings which in the
judicial decision clearly stated that the travel ban was unconstitutional and therefore
should not be used as a measure of peace. Not only this but several protests against
this ban proved that the american people thought of of it as an oppressive method
targeting Muslims and the countries where this religion is most popular.

Some arguments against the Travel Ban were recognizing or interpreting with a
religious bias at heart since 6 of the first 8 countries that were banned to travel were
predominantly Muslim but the government responded to these claims by saying they
do not target one religion but every individual of these countries no matter which
religion they practice or not. The U.S. supreme court also upheld the third edition of
the travel ban since a waiver was installed in order to grant visas in particular cases
when citizens of the countries listed in the aforementioned ban had or is enduring
hardship or extreme struggle in their homeland. The applicant of this waiver must not
present any threat to the country's security and by following all of this requirements
the applicants admission can become a national interest at heart. However they are
amid claims that the administration can act very arbitrarily following these
requirements since they are kids in desperate need of care, husbands being split from
their waves amongst other applicants in need are denied rutinarily by the U.S.
administration.

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 According to the Cato Institute, the ban has already blocked some 9,500 family
members of U.S. citizens — including 5,500 children and nearly 4,000 spouses —
from joining their relatives in the United States. And official figures released recently
show that8 the State Department refused some 37,000 visa applications from travel
ban countries in 2018, compared with fewer than 1,000 in 2017, when the ban had not
taken full effect.

In the book Migration and Political theory: The ethics of Movement and Membership
we found race and ethnicity has always been a part of immigration policies but is not
commonly mentioned in the political debate. Not acknowledging that race and ethnicity
were always part of a discussion in immigration makes recent claims that certain
countries have racist or discriminatory migration policies a once in a lifetime
occurrence. In reality, this issue has always existed and is not until very recent with
different disputes with refugees in Syria and this policy made in the U.S.A that the
media has put the spotlight on this issue. We can retrieve examples from the past like
the Chinese exclusion act of 1882 that prohibited all immigration from China to the
United States. Not only in this era or just in the United States does this discrimination
occur. In Britain the income threshold to bring a foreign spouse into the country needs
to be one of 24,100 U.S. dollars to be permitted.

Still, whether we believe it is fairly new the discrimination faced by immigrants from
certain nationalities, practicants of a certain religion or an specific ethnicity it is still
deplorable that it still happens to this day. The United States of America off course has
been the main protagonist and subject to public disputes and debates on migration
policies and whether temporary measures due to extraordinary circumstances is an
excuse for implementing drastic and discriminatory policies against a certain group of
people.

The travel ban that president Donald J. Trump put in place within an executive order
thatnationals from Iran, Iraq, Somalia, Sudan, Syria, Libya and Yemen from being
allowed to travel to America for 90 days. Also people from North Korea and Venezuela
have different levels of restrictions. Especially those who act as politicians of the
regimes and their immediate families. Also people who were nationals of these
countries and had dual nationality with another were also included in the ban. This
executive order also included a policy that for 120 days refugees could not enter the
country as well. The administration stance on this issue was that this order was

8
Fine, S. and Ypi, L. (2017). Migration in political theory. 1st ed. Oxford: Sarah Fine, Lea Ypi.
Bbc.co.uk. (2019). Trump's US travel ban: What's the full story? - CBBC Newsround. [online]
Available at: https://www.bbc.co.uk/newsround/38794001 [Accessed 15 Apr. 2019].
Koser, K. (n.d.). International Migration: A Very Short Introduction.
Bbc.co.uk. (2019). Trump's US travel ban: What's the full story? - CBBC Newsround. [online]
Available at: https://www.bbc.co.uk/newsround/38794001
The Cato Institute. (2010), 48(01), pp.48-0546-48-0546.
Un.org. (2019). Home | United Nations. [online] Available at: http://www.un.org/en/

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installed in order to stop terrorism and/or all acts that could be manifested or
interpreted as such.

This is one of the measures that the president during his presidential election called
extreme vetting which promised the people of the country and most importantly his
voters that border control and immigration the United States that requisites would be
more strict when he gets elected. Now that he is acting president he is keeping his
promise of that and then some.

In 2018 the State Department rejected 37,000 visa applications acting in full of this
ban. And although there have been several campaigns, protests and rallies not to
mention condemnation by several nations around the world Trump´s migratory policies
and beliefs are not getting softer.

While some call this ban a more reassuring way of making sure information given by
foreign people entering the country, others call it an excuse to actively discriminate
people by their nationality, ethnicity and religion. Now whatever our personal stance
on this issue is the facts are that there needs to be a more objective criteria on people
entering the country and not arbitrarily deny admission.

In SDG target 10.7., United Nations Member States commit to facilitate by 2030 the
“orderly, safe, and responsible migration and mobility of people, including through
implementation of planned and well-managed migration policies” This completing a
mission that bases all countries to principles of solidarity and by denying urgent cases
of need of healthcare and education to immigrants the United States can run the risk
of being negligent to these principles.

The ban is being repealed currently by senators of the democratic party to all 3 parts
of the ban and amend the Immigration and Nationality Act to prohibit discrimination on
the basis of religion, and limit the power of presidents to institute such bans in the
future.

Conclusion

As we have showed in the cases previously exposed, international law does not give
a license to discriminate as it has been portrayed in many treaties, but it have been
indifferent to the discrimination that has happened. So we can conclude, that
international public law doesn’t promote discrimination in migration regulations, but it
hasn’t acted as is expected, by recriminating the ones that aren’t obeyng and
respecting human rights

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It is also important to emphasize that the presence of international organizations must
be more effective on all migration problems that arise, since although they are always
present, it is not a presence that is significant, given that in most cases States have to
resort to extreme measures, so there are insignificant strategies such as the one
adopted or implemented by Ecuador.

The main war we must fight as human beings is in which there are no barriers between
countries and that xenophobia can be overcome in all areas as they have been in
these cases, in which a group of people who are very small have to pay the other
citizens of that country, what we must qualify as citizens is the quality of the person as
such and not fall into the fallacy of generalizing only by the fact that comes from a
certain country therefore, the change initially depends on ourselves.

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