‘Less than human’: the detention of irregular immigrants in Malta (original) (raw)
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The Human Rights of Migrants with Irregular Status: Giving Substance to Aspirations of Universalism
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Human rights law aims to provide comprehensive legal protection for fundamental rights. However, this universalist aspiration is often not translated into reality when it comes to the treatment of migrants with irregular status. The protection human rights law affords to such migrants is often diluted-either as a matter of law, or of de facto political reality. However, human rights law can still serve as an important tool for challenging exclusionary policies directed against irregular migrants. This chapter sets out to explore when and why this can be the case. 4.2 The Universalist Orientation of Human Rights Law Human rights are supposed to be universal. By definition, they require every individual to be treated as entitled to a certain baseline level of dignified treatment, irrespective of nationality, race, gender, or any other distinguishing markers. Their universalism is affirmed by the founding text of the modern international human rights movement, namely the Universal Declaration of Human Rights (UDHR). Article 1 of the Declaration states that "all human beings are born free and equal in dignity and rights", while Article 2 asserts that "everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex…national or social origin…birth or other status". Indeed, this quality of universality is often regarded as the special ingredient that (i) differentiates human rights claims from other important interests, entitlements, or values, and (ii) gives them a special prioritarian status that justifies why they
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In this paper, several aspects of the administrative detention discipline in the light of the Inter-American Human Rights System (IAHRS) standards will be addressed. Through a comparative approach, the paper aims at assessing whether the latter provides better protection to detained migrants in respect of other regional systems, such as EU law or ECHR legal framework, from both a substantive and a procedural standpoint. In the first paragraph, a general introduction upon the structure and the aim of the IAHRS will be developed, emphasising the relevant sources of law which have been involved in the creation of such a legal framework. Then, a brief analysis specifically devoted to the migrants’ status within the IAHRS will be offered, also considering the international legal standards on the matter. In the third paragraph I will explain different aspects of administrative detention of migrants—both substantive and procedural ones—in the light of the relevant IAC(t)HR case-law, which might seem to acknowledge its de facto criminal nature. A constant reference to the analogous CJEU and ECtHR jurisprudence on the matter will be provided. Finally, a comparison between Europe and America systems upon different standards of migrants’ administrative deprivation of liberty will be presented, arguing that the IAHRS approach seems more consistent with international law and, with respect to the European legal framework, more attentive to the paramount importance of the fundamental rights and freedoms to be accorded to aliens subjected to allegedly non-criminal custodial measures. -- Nel presente lavoro verranno affrontati diversi aspetti della disciplina della detenzione amministrativa alla luce degli standard del Sistema Interamericano dei Diritti Umani (IAHRS). Attraverso un approccio comparatistico, il contributo intende indagare se quest’ultimo fornisca una migliore protezione ai migranti detenuti rispetto ad altri sistemi regionali, come il diritto dell’UE o il quadro giuridico della CEDU, sia da un punto di vista sostanziale che procedurale. Nel primo paragrafo, verrà sviluppata un’introduzione generale sulla struttura e sull’obiettivo dell’IAHRS, sottolineando le fonti giuridiche rilevanti che sono state coinvolte nella creazione di tale ordinamento. Successivamente, verrà offerta una breve analisi specificamente dedicata allo status dei migranti all’interno dell’IAHRS, considerando anche gli standard legali internazionali in materia. Nel terzo paragrafo illustrerò i diversi aspetti della detenzione amministrativa dei migranti – sia sostanziali che procedurali – alla luce della pertinente giurisprudenza della Corte Interamericana dei Diritti Umani e della relativa Commissione, che sembrerebbe riconoscerne la natura sostanzialmente penale. Verrà fatto un costante riferimento alla pertinente giurisprudenza della Corte di Giustizia dell’Unione europea e della Corte europea dei diritti dell’uomo in materia. Infine, verrà presentato un confronto tra i sistemi europei e americani su diversi standard di privazione amministrativa della libertà dei migranti, sostenendo che l’approccio dell’IAHRS sembra più coerente con il diritto internazionale e, per quanto riguarda il quadro giuridico europeo, più attento all’importanza fondamentale dei diritti e delle libertà fondamentali da riconoscere agli stranieri sottoposti a misure detentive asseritamente non penali