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The immigration bill from a human rights perspective

2. Our International Obligations

In terms of the Universal Declaration of Human Rights1 immigrants and migrants are afforded the protections as pledged by the member states. The pledge includes the intention to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms. Under international law, according to Article 2 of The International Covenant on Economic, Social and Cultural Rights and Article 13 of The International Covenant on Civil and Political Rights, once a state has admitted aliens into its territory (documented immigrants), it must treat them according to internationally determined standards. International human rights law gives many rights to lawful aliens. Some of these include:

  • the right to residence;
  • freedom of movement; and
  • economic and social rights.
This means that aliens should be given the same human rights as state nationals, with the exception of certain aspects of:

  • political rights;

  • participation in political or public life;

  • ownership of property;

  • employment; and

  • the right to remain in the territory.
Illegal aliens are not lawfully in the territories of states other than their own. They can be removed once they are found to be illegal. However, because they are human beings, they are nevertheless entitled to some basic rights. These include the rights to:

  • dignity;
  • freedom and security of the person; and
  • life.
South Africa has, since April 1994, ratified or acceded to several international human rights treaties that have a bearing on the treatment of aliens. These are:

  • The Convention on the Rights of the Child (1989), ratified on 16th June 1995;

  • The Convention on the Elimination of All Forms of Discrimination Against Women (1979), ratified on 15th December 1995; and

  • The African Charter on Human and Peoples’ Rights (1981) acceded to in January 1996.
South Africa has yet to sign and ratify the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.2 This Convention is based on the principles contained in the Universal Declaration of Human Rights.

  1. Articles 6, 9, 13, 15,
  2. The National Action Plan for the Promotion and Protection of Human Rights, Republic of South Africa, December 1998 at p 75

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