Strasbourg, 17 July 2009	CDL-UDT(2009)003 Engl. only

 

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

 

 

 

UNIDEM Campus trieste seminar   “POLICIES ON THE PROTECTION AND SOCIAL INTEGRATION OF IMMIGRANTS AND THEIR IMPLEMENTATION AT THE INTERNATIONAL, NATIONAL AND LOCAL LEVEL”   Trieste, Italy 29 June – 2 July 2009

 

 

 

REPORT

 

COMPARATIVE EXPERIENCES IN TERMS

OF INTEGRATION OF MIGRANTS

 

by

 

Mr Eduardo RUIZ VIEYTEZ

 (Director, Pedro Arupe Institute of Human Rights,

University of Deusto, Bilbao, Spain)

I. Immigration as a new reality in Europe: the multicultural substrate of public policies

 

 

1.  The immigration process that Europe has undergone since the post-war period has not created multiculturality, but rather emphasised the pre-existing plural reality. The construction of the Nation-States has marked the exclusion of numerous identities in this process, at the cost of a high degree of diversity. At the same time, the States have until now been very effective agents in the cultural and identity homogenisation of their respective societies.

 

2.  As an outcome of immigration, multiculturality is neither a problem nor an ideal, but simply a reality to be managed. The need is today to find formulas and proposals for management of this phenomenon that are at once democratic and compatible with democracy and human rights. Our reflection starts from the awareness that a real framework of human rights cannot be constructed without incorporating the identities of people and groups, especially if these are minorities in their respective political scopes. We consider the distinctive elements of collective identities (religion, language, culture…) as basic factors for the development of the personality of all human beings. These do not only constitute real factors of personal integration, but also symbolic referents of extreme importance. For this reason, the effective presence of these elements in the public space has an extraordinary importance for the individuals that share them (irrespective of whether they share few or many). From here comes the importance of cultural factors in the design of a complete framework of human rights and, consequently, citizenship[1].

 

3.  Therefore, as a result of migration flows and of previous realities, uniformity has ceased to be natural in the public space of our political communities. Diversity is now the substrate on which public policies have to be designed and implemented. The new paradigm is that of permanent and increasing multiculturality. Within our present post-modern societies, the speed of population movements, the revival of the local and minority identities, or the new facilities of conservation of different styles and cultures pave the way to a much more complex public space. Political spaces are more permeable and less homogenous at present. In this context, the classic Nation (identitarian) State ceases to be a democratic answer. The State must gradually become multi-identity, flexible, and adaptable to the diverse identities that coexist and are manifest in it.

 

 

II. Immigration and policy: different fields for public intervention

 

4.  When reflecting about public policies in the field of immigration, we must start by saying that the term migrant happens to be a non-technical word from a legal perspective. Sociologically, the migrant does exist, not only for the receiving society, but for the migrant him/herself. But when the notion is translated to a legal system, we normally find that migrant is not a technical word. Even if at the United Nations level, the concept of migrant has been incorporated to some bodies and documents, in fact the legal meaning of the word is not the one sociologically admitted. Domestic legal orders do not refer to migrants, since there is normally no definition of migration or of a migrant person.

 

5.  The key issue from a Law perspective is whether the migrant person goes through an international border or not. The link between individuals and states is that of nationality (or citizenship). For the legal system, we can speak about aliens, foreigners, or non-nationals, but not about migrants. Obviously, internal migrations occur, and in some cases their implications could be more relevant for the people concerned than an international migration. But from a more strict perspective, we can only make political and legal proposals through the relevant legal concepts, such as that of alien. Therefore, when talking about integration of migrants we will reflect in fact on the rights of those who are not nationals of the state they reside in.

 

6.  In parallel to this, it is possible to identify different fields for public intervention around the phenomenon of international migrations. Considering migration in its most restrictive meaning, we would refer to those public policies devoted to the regulation of the migration flows. In fact, migrations happen to be a process and the word migrant could only be used to refer to the person who is within such a process, and not to those who have already finished their movement. In fact, it is impossible to determine when a migrant ceases to be such. It can be quite reasonable to use the concept of migrant during the first period of stay of a person who arrived from abroad seeking for a better life. But to refer to his/her as a migrant after a period of 10, 20 o 30 years (or even more, to refer to his/her children as second-generation immigrants) is much more doubtful. It may be seen as counterproductive from a human rights discourse. If migration is just a process (which can be regulated by law), much of what is called “integration of migrants” is in fact “democratic management of diversity”, in particular when thinking about cultural, identity or political elements.

 

7.  From the core of migration policies, which refer to the regulation of flows, another three different domains for public intervention can be observed. On the one hand, the whole social, economic or labour field. Normally, migrations respond to the will of promoting a social condition, but even in those cases which do not correspond to that possibility, any state must regulate, ensure and promote an adequate social integration of the newcomers. A second field for public intervention is that related to cultural or identity elements. As we said before, cultural elements are basic components of the human dignity and they must be taken into consideration when regulating the public space. It is mistaken to consider that integration of immigrants is achieved when they get a stable job and the corresponding working permit, as if they had leaved their identity behind them before the migration process. Finally, a third domain of public intervention (and legal regulation) is that of effective political participation of the new citizens, which connects with naturalisation and nationality law.

 

 

III. Social and cultural integration: models and ideas

 

8.  The way of integrating immigrants within the receiving societies can vary from country to country. From the experiences developed in this field along the last decades, we can identify some big models of reference in this respect:

 

a)   Assimilationism. The central idea is that the newcomers must be incorporated into the mainstream society and within its dominant identity. From this perspective, the most productive approach for that is to forget about the original identity elements of the migrants and work on the assumption of the identity elements of the majority. The theory is that doing so they will get soon and efficiently integrated. 

b)      Differentialism / Segregationism. In this case, the idea is to keep migrants away from the mainstream society. They are allowed to maintain their own identities and in fact the goal of this policy is that they do not get the distinctive elements of the majority. Obviously, this policy does not promote any kind of interrelation between natives and newcomers.

c)      Multiculturalism. In the last 60s and as a respond to the dominant assimilationist ideas of that time, some sectors ask for a different policy to respect other identities than that of the majority. This applies not only to immigrants, but also to other traditional minority groups living in the same space. The first country in adopting multiculturalism as official policy was Canada in 1971.

 

9. During the last decade much has been discussed about a possible backlash of multiculturalism in Europe. New ideas have been developed, although not always in a clear or consistent manner. Nowadays, the mains goal of all immigration policies is that of integration, but the meaning of that concept may be different according to specific contexts and policies. Countries like the USA have developed the idea of a society as a Melting Pot, from which a new common and hybrid identity emerges. In the case of Canada, however, this idea is confronted with that of a mosaic, where anybody could keep its own identity whereas participate in a coordinated way to frame the general view of the country.

 

10.  In today’s Europe, the idea of “interculturalism” seems to be present in many academic or political discourses. In a nutshell, interculturalism can be seen as an updating of multiculturalism, insisting much more on the need of reciprocal dialogue and interaction among cultural groups. However, within the politically correct discourse, a tension can be observed between the celebration of diversity on the one hand, and the search of social cohesion on the other. Normally the principle of social cohesion is not defined but there is a risk of using it as an updated version of a light assimilation or melting process around the dominant or common elements of identity.  

 

11.  The deep culture of European societies is in fact that of assimilationism. Nation-states are legitimised as close spaces for constructing (and promoting) certain dominant identities. This political construction relies on deep assumptions widely extended within our societies. In particular, we will challenge four political assumptions that form part of the socially dominant discourse.

 

12.  - Every society needs common cultural elements for cohesion. Indeed, European political communities have been constructed based on the assumption that cultural and identity uniformity is desirable. It is presumed that state efficiency implies the need for a common language, common values and a shared feeling of identity.

 

13.  - The host society constitutes the scope of reference for integration. The supposed host society or the majority does not share all the elements of identity and, in terms of values, they always presents remarkable internal differences. The host society is still a euphemism with which to legitimise exclusion.

 

14.  - Diversity is a problem for the management of a society. European societies have generally been constructed from the assumption that what is desirable is to share identity elements. This being the case, social cohesion would be that much more difficult to obtain, the greater the cultural diversity of a society is.

 

15.  - The democratic management of diversity implies a considerable public cost. From this perspective, the non-management of diversity would imply a considerable saving that could release resources for other scopes of public policies. This is to consider management of diversity just as a cost, and not as an investment intended to avoid future costs or to get greater levels of competitiveness.

 

 

IV. International legal framework on migrant workers rights

 

16.  The international legal framework corresponding to the rights and conditions of migrants does not present a very systematic picture. In fact, it is necessary to precise a number of dualities when listing all the relevant documents that can be relevant in this respect.

 

17.  Firstly, all general human rights standards are of course to be applied to migrant workers. Besides them, there are also some specific international documents which refer in concrete to the human rights of migrant workers. Secondly, it is necessary to distinguish between the different frameworks of protection existing at the international level. On the one hand, the universal system of the United Nations; on the other hand, the regional framework, where the role of the Council of Europe would be by far the most important one, although it is also necessary to refer to the OSCE or to the EU. It is also necessary to make a distinction between the so-called hard-law and the soft-law. Many of the existing instruments are clearly legally binding and belong to the hard-law, whereas other document have a more limited legal effect, although they also play a role in the international law on human rights. Finally, apart from generic documents referring to a plurality of situations concerning migrants or aliens, it is also relevant to analyse the case-law of some monitoring or judicial bodies, where important leading decisions can open the way to new interpretations of the existing legal framework.

 

18.  All in all, the list of relevant documents relating to some extent to human rights of migrants or aliens can be classified as follows:

 

1.- Universal framework

 

1.1.- Conventions

 

1.1.1.- Generic conventions

 

·           International Convention on the Elimination of All Forms of Racial Discrimination (21 Dec 1965)

·           International Covenant on Civil and Political Rights (16 Dec 1966)

·           International Covenant on Economic, Social and Cultural Rights (16 Dec 1966)

 

1.2.- Specific conventions

 

·           International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (18 Dec 1990)

·           Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime. Adopted and opened for signature, ratification and accession by General Assembly resolution 55/25 of 15 November 2000 (not in force)

·           Convention on the Reduction of Statelessness. Adopted on 30 August 1961 by a Conference of Plenipotentiaries which met in 1959 and reconvened in 1961 in pursuance of General Assembly resolution 896 (IX) of 4 December 1954

·           Convention relating to the Status of Stateless Persons Adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526 A (XVII) of 26 April 1954

·           Convention relating to the Status of Refugees Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950

·           Protocol relating to the Status of Refugees The Protocol was taken note of with approval by the Economic and Social Council in resolution 1186 (XLI) of 18 November 1966

 

2.- Non conventional documents

 

2.1.- Declarations

 

·           Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live Adopted by General Assembly resolution 40/144 of 13 December 1985

·           Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Adopted by General Assembly resolution 47/135 of 18 December 1992

·           Universal Declaration on Cultural Diversity Adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization at its thirty-first session on 2 November 2001

·           General Assembly Resolution 59/194 (18 March 2005), On the protection of migrants

 

2.2.- General comments of treaty bodies

 

2.2.1.- Human Rights Committee

 

·           General Comment 15 – Position of aliens under the covenant

·           General Comment 18 – Non-discrimination

·           General Comment 23 – Rights of Minorities

 

2.2.2.- Committee on the Elimination of Racial Discrimination

 

·           General Comment 11 – Non-citizens

·           General Comment 14 – Definition of discrimination

·           General Comment 30 - Discrimination against non-citizens

 

2.2.3.- Committee on Economic, Social and Cultural Rights

 

·           General Comment 20 – Non-discrimination in economic, social and cultural rights

 

 

It is also relevant to point out the existence of an Special rapporteur on the human rights of migrants, created in 1999 by the Commission on Human Rights, pursuant to resolution 1999/44. The mandate of the Special Rapporteur covers all countries, irrespective of whether a State has ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, of 18 December 1990. The Special Rapporteur acts on information submitted to him regarding alleged violations of the human rights of migrants; he also conducts country visits upon the invitation of the respective Government; and reports annually to the Human Rights Council about the global state of protection of migrants’ human rights, formulating specific recommendations. The position has been held by Ms. Gabriela Rodríguez Pizarro (Costa Rica) between 1999 and 2005, and by Mr. Jorge. A. Bustamante (Mexico), from August 2005.

 

2.- Regional European framework

 

2.1.- Conventions

 

2.1.1.- Generic conventions

 

·           European Convention on Human Rights, 1950

·           European Social Charter (18 October 1962)

 

2.1.2.- Specific conventions

 

·           European Convention on the status of migrant workers, open for signature on 24 November 1977. It has been ratified so far by 11 states (ALB, F, I, MOL, NL, N, P, E, S, TUR, UA)

·           Convention for the participation of foreigners in public life at the local level, open for signature on 5 February 1992. It has been ratified by 8 states (ALB, DK, SF, ICE, I, NL, N, S)

·           European Charter for Regional or Minority Languages (1992), ratified by 24 states

·           Framework Convention for the protection of national Minorities (1995), ratified by 39 states.

 

2.2.- Other documents

 

2.2.1.- Documents of the Parliamentary Assembly of the Council of Europe

 

·           Recommendation 1206 (1993), of 4 February 1993, on the integration of migrants and community relations

·           Recommendation 1277 (1995), of 30 June 1995, on migrants, ethnic minorities and media

·           Recommendation 1500 (2001), of 26 January 2001. Participation of immigrants and foreign residents in political life in the Council of Europe member states

·           Recommendation 1625 (2003), of 30 September 2003. Policies for the integration of immigrants in Council of Europe member states

·           Resolution 1437 (2005), of 27 April 2005. Migration and integration: a challenge and an opportunity for Europe

 

2.2.2.- Other documents

 

·           Venice Commission: Report on non-citizens and minority rights, adopted on 16 December 2006.

 

 

19.  In spite of this extended list of documents, the truth is that there is not much to be said about the protection, recognition or promotion of the different cultural or identity element of the newcomers. The references to possible rights of migrants or new citizens in this field are few and limited. To give a general picture of it, we will refer briefly to the main articles in this respect. Thus, the 1992 UN General Assembly Declaration on the rights of the individuals who are not natives of the country in which they live, recognises in its article 5 just the right "to preserve their own language, culture and traditions". Concerning international treaties, the Convention on the protection of the rights of all Migrant Workers and their families, scarcely incorporates cultural references. Besides the right to education, in article 31 it is established that the obligation of the States to ensure that the cultural identity of the migratory workers and of their families is respected. However, this convention has not been ratified by any of the main immigration countries.

 

20.  An important clause in this field is article 27 of the International Covenant on Civil and Political Rights that establishes the right of persons belonging to ethnic, religious and linguistic minorities to develop their own culture, to profess their own religion or to use their own language. Though this article alludes to minorities, the UN Human Rights Committee has established that foreigners can benefit from the rights recognised in this article^[2]. This being the case, and given that no definition of minority exists in international law, in the practice any minority group (composed by citizens or non-citizens) might invoke their minority condition and consequent right to use or develop their own language, religion or culture in a certain State. This solution would erase substantial differences between the protection of traditional and recent minorities, opening an exciting and almost revolutionary scenario for the regulation of linguistic diversity in democratic states. Article 30 of the Convention on the Rights of the Child^[3] follows the same pattern as article 27 of the ICCPR.

 

21.  At the European regional level, the ECRML expressly excludes from its area of application "languages of immigrants". As for the FCNM, most of the parties to this treaty do not consider the convention applicable to immigrant communities, although the Advisory Committee of the Convention is opening this possibility in relation with some specific clauses[4]. Finally, the European Convention on the Legal Status of Migrant Workers^[5] only alludes to cultural questions in its articles 14 and 15, referring to teaching of the mother language as a tool to facilitate return to the country of origin. In any case, from the whole legal framework in force, it appears clear that religious aspects are to be more easily respected and protected than linguistic differences.

 

 

V. Proposals from a human rights perspective

 

22.  Within the framework of multicultural societies, it is necessary to re-read democracy and human rights, creating adequate contexts to achieve a real social and cultural integration of migrants and of all members of minorities. Obviously, existing realities, the conformation of majorities, or historical and geographic elements, will be relevant factors to consider when regulating this process of integration. The central idea is not to eliminate cultural or identity elements from the institutions or from the public space. On the contrary, from the assumption that state neutrality is impossible with respect to identity, we seek to promote the presence in the public space of the greatest level of diversity that is possible within a harmonious coexistence. Thus, social cohesion should be achieved promoting cultural freedom of the members of the society, and not by assimilating them into a particular way of interpreting basic common values.

 

23.  From a political philosophical perspective, this construction entails the need to redefine the notion of citizenship in a double perspective. On the one hand, describing it as inclusive (with respect to immigration/foreigners) to incorporate in the political game all those residents who have the will to participate in the public space. On the other hand, considering it as plural citizenship (with respect to minorities/diversity), which allows the interaction of multiple identities in the public space, its recognition and promotion by the state apparatus itself. Thus, the crisis of the present national State can only be surpassed in this scope by means of an extension of these filters and a mutation of the State into a much more open and flexible organisation than what it has been during modernity.

 

24.  Inclusive citizenship is based on the idea of fair treatment and the right to participate. The present democratic legitimisation of the State requires the participation of all residents in the processes of political decision-making in a fair return for their contribution to the prosperity of the country[6]. The documents that demand an extended reconsideration of the bond of the citizenship for foreign residents are ever more numerous[7]. Nowadays, the pre-modern categorisation of legal nationality as a factor of exclusion cannot be maintained. Citizenship must be linked exclusively to factual residence (not a mere stay that is temporary by intent), as a unique bond of political inclusion in the community, with all its rights and obligations.

 

25.  Plural citizenship is based on the concept of cultural freedom. This implies that all citizens must enjoy the most possible range of cultural opportunities, in a way that they can develop all their individual or collective potentialities through the cultures they belong to or they identify with[8]. Since elements defining collective identities (religion, language, cultural values and so forth) are crucial factors for the development of any human being, today it is not possible to build a human rights framework without considering the identity issue. The presence of these elements in the public space in a proper manner, consistent with the standards of rights and services provided in a given society has an extraordinary importance for achieving social justice and cohesion. According to this, it implies constantly renegotiating the design of public space between all the identities that at each moment conform a multicultural society. Therefore, the key problem is to understand the “otherness” within our own society. It is obvious that migration flows are being decisive in raising the debate, but the debate itself is not on managing migration, but managing diversity.

 

26.  When talking about human rights of migrants or newcomers, it is necessary to remind that universal rights must be able to be exercised by everybody, with the sole restriction corresponding to the political rights reserved to the effective members of a political community. However, according to the principles of inclusive and plural citizenship, any factual resident must have the opportunity to enjoy fundamental rights without renouncing to his or her identity elements. This all implies the need to accommodate the State, in terms that are reasonable and proportional, to be able to effect this multicultural principle through the concrete exercise of each of the rights that are recognized to all persons. This means that identity demands and aspirations of immigrants have also to be considered in the regulation of the public space and institutions. Again, the issue is much better focused if we consider the immigrants as new citizens, and the current society as a diverse one.

 

27.  The key is, therefore, not in the entitlement to the rights, but in their reinterpretation. It is not a matter of recognising special rights for foreigners or for minorities, but to interpret the same human rights that correspond to as a matter of plurality and inclusiveness. This can only be achieved by deepening in the principle of non-discrimination and the right to equality. 

 

 

VI. Equality of treatment and migrants’ integration

 

28.  In general, international human right law requires the equal treatment of citizens and non-citizens. Exceptions to this principle may be made only if they are to serve a legitimate state objective and are proportional to the achievement of that objective[9]. Obviously, the rule of non-discrimination is due also to protect immigrants or new citizens. The main point here is to analyse the real and deep meaning of these two fundamental rights of any democratic state.

 

29.  If the interpretation of equality is formalistic, then the consequence for most of the minority groups (including those composed totally or partially by immigrants) will be that of progressive assimilation. If constitutional rights are to be implemented in the same way to all residents, the dominant identity elements of the majority are going to be given a predominant position and those of the minorities (unless formally officialised) will be relegated from the public space. Thus, new ways of living, talking, professing religions, dressing, behaving, etc will not be accepted as valid forms of exercising rights, as far as they do not correspond to the traditional perspectives of the majority.

 

30.  The key point here is to understand that implementing principle of equality does not mean to treat all situations in the same manner. On the contrary, a holistic understanding of the legal concept of equality implies the need to assure the differentiated treatment of those who are different (diversity) or who are in substantially different situations (minority). Thus, the right to non-discrimination with respect to human rights is also violated when States, without reasonable and objective justification, do not deal differently with people whose situations are significantly different. The European Court of Human Rights has shifted its interpretation on non-discrimination when it says that all cases should be treated alike. On the contrary, it also requires that different cases are treated differently:

 

31.  “The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification…. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”[10] (…)

 

32.  This development is also present in the so called race directives adopted by the European Community in the year 2000, which include an explicit reference to the idea of indirect discrimination and require positive action to combat discrimination [11].

 

33.  In a different but complementary perspective, some human rights bodies have limited the state’s decision margin when dealing with identity differences[12]. This is also the case of new instruments in the field of diversity such as the FCNM (Framework Convention for the protection of National Minorities) or the ECHRML (European Charter on Regional and Minority Languages). In these cases, some of the obligations of the States in respect to minority groups are legally shaped with respect to the concurrence of certain factual situations: a substantial and sufficient number of people pertaining to the minority, an effective demand for the implied right, existence of means and relative geographic concentration. This way of drafting legal rules means that those groups or their members are holders of the respective rights, which become indispensable from the concurrence of the required circumstances. Therefore, interpretation of the rights of minorities does not depend on the decisions of States; there exists a scope of objectivity that serves to delimit state obligations and that allow us to speak of pre-existing rights that States cannot deny. In this respect, immigrants can be considered as minority groups, at least to the extent of certain rights protected in the FCNM. This is also the opinion of the United Nations Human Rights Committee.

 

34.  To put it in a nutshell, equality in its purely formal sense is not sufficient for the management of the complex situation of a plurality of groups which find themselves (as a consequence of their diversity) in a structural minority position. This clearly affects immigrants’ human rights, since they would have recognised not only the entitlement of all basic rights (apart from the strictly political ones), but also the way in which these rights can be exercised in a given situation and the corresponding obligations of the state vis-a-vis those new citizens.