Abstract
“States have the right, as a matter of well-established international law…to control the entry, residence and expulsion of aliens.” This statement from the European Court of Human Rights in the case of Hirsi Jamaa v. Italy neatly encapsulates the rule of international law that every independent State, as an expression of its sovereignty, is entitled to admit or exclude foreign nationals, or aliens, from its territory. However, this right is not absolute as it may be tempered by treaty commitments or other international law bindings on the State. Hence expulsions or deportations must comply with human rights obligations such as due process requirements. Refugees, although not migrants strictu sensu, are protected by the principle of non-refoulement, which is universally recognized. In the specific context of the African continent, which encompasses 55 countries, the African Charter on Human and Peoples’ Rights 1981 (African Charter) and the Protocol on the Free Movement of Persons, Right of Residence and Right of Establishment 2018 (Protocol on Free Movement) are the most pertinent legal instruments, adopted under the auspices of the Organization of African Unity (OAU) and the African Union (AU), pertaining to migrants and to the regulation of migration. While the former treaty has been in force for more than 30 years now and there is considerable practice regarding its implementation and application, the latter has not yet come into force and no estimation can currently be made as to when this might happen.
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Notes
- 1.
Hirsi Jamaa and Others v. Italy, Eur. Ct. H.R., Appl. No. 27765/09, 113 (Feb. 23, 2012). See also Saadi v. Italy, 2008-II Eur. Ct. H.R., 207, 242. And Human Rights Committee, General Comment No. 15, The position of aliens under the Covenant, 5, UN Doc. HRI/GEN/1/Rev.3 (1997).
- 2.
Ibid.
- 3.
According to the United Nations High Commission for Refugees, non-refoulement is, in addition to a binding treaty obligation, a rule of customary international law and a human right, quoted in M.S.S. v. Belgium and Greece, Eur. Ct. H.R., Appl. No. 30696/09, 56 (Jan. 21, 2011). The African Commission on Human and Peoples’ Rights describes non-refoulement as a principle “which has taken an increasingly fundamental character, as one of the cornerstones of international refugee law,” Doebbler v. Sudan, Comm. No. 235/2000, 27th Activity Rep. 2009, 150. Yet there does not appear to be a uniform approach to the interpretation and scope of the principle in state practice; see Ellen D’Angelo, “Non-refoulement: The Search for a Consistent Interpretation of Article 33”, Vanderbilt Journal of Transnational Law 42, no. 1 (2009): 279.
- 4.
African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 UNTS 217, all AU Member States except Morocco are contracting parties; Protocol to the Treaty establishing the African Economic Community relating to Free Movement of Persons, Right of Residence and Right of Establishment, Jan. 29, 2018, https://au.int/sites/default/files/treaties/36403-treaty-protocol_on_free_movement_of_persons_in_africa_e.pdf, not yet in force (currently ratified by four Member States).
- 5.
African Charter Art. 12 states, “1. Every individual shall have the right of freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.” This provision is reflected in all material respects in other human rights treaties, cf. International Covenant on Civil and Political Rights arts. 12, 13, Dec. 16, 1966, 999 UNTS 171 (ICCPR); American Convention on Human Rights art. 22, Nov. 27, 1969, 1144 UNTS 123 (ACHR); Fourth Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms arts. 2–4, Sept. 16, 1963, ETS No. 46; Seventh Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms art. 1, Nov. 22, 1984, ETS No. 117; Arab Charter on Human Rights arts. 20–22, May 22, 2004, International Human Rights Reports 12 (2005): 893. See generally David Harris, Michael O’Boyle and Colin Warbrick, Law of the European Convention on Human Rights (2nd ed. Oxford: Oxford University Press, 2009), 736; Alex Conte and Richard Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2nd ed. Farnham: Ashgate, 2009), 65.
- 6.
Sudan Human Rights Organization and Sudan Centre for Housing Rights and Evictions v. Sudan, Comm. Nos. 279/03, 296/05, 28th Activity Rep. 187 (2010).
- 7.
Institute for Human Rights and Development in Africa v. Angola, Comm. No. 292/2004, 24th Activity Rep. 79 (2008).
- 8.
Ibid., 80; African Institute for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v. Guinea, Comm. No. 249/2002, 20th Activity Rep. 68 (2005–2006); Kenneth Good v. Botswana, Comm. No. 313/2005, 28th Activity Rep. 163 (2009–10). This position reflects those set out under other human rights treaties, see ICCPR art. 2(1), General Comment No. 15, 1, 6; ACHR art. 1(1); European Convention for the Protection of Human Rights and Fundamental Freedoms art. 1, Nov. 4, 1950, ETS No. 5 (ECHR). Discrimination against the nationals of other Member States is prohibited by the Protocol on Free Movement art. 4(1). The African Charter’s insistence on non-discrimination is also manifested in Article 19 thereof, which extends the principle of non-discrimination to the community as a whole by proclaiming the equality of all peoples, i.e. a collective of individuals sharing certain bonds and identities, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Comm. No. 276/2003, 27th Activity Rep. 151 (2009).
- 9.
The Law Office of Ghazi Suleiman v. Sudan, Comm. No. 228/99, 16th Activity Rep. 60 (2002–03). The compulsory mass transfer of people from one contracting party to another has been held to breach this provision, Democratic Republic of Congo v. Burundi, Rwanda and Uganda, Comm. No. 227/99, 20th Activity Rep. 81 (2005–06). See also Protocol on Free Movement art. 6(1).
- 10.
Open Society Justice Initiative v. Côte d’Ivoire, Comm. No. 318/06 160 (2015). Note the definition of “travel document” as “a passport which complies with the International Civil Aviation Organization standards for travel documents, or any other travel document identifying a person issued by or on behalf of a Member State or by the [AU] Commission which is recognized by the host Member State,” Protocol on Free Movement art. 1. It should be noted that in 2016 the AU Assembly introduced the African Passport, which will be issued by the AU Commission and by Member States and which should be recognized throughout the continent as a valid travel document; see Assembly/AU/Dec. 607 (XXVII) (July 18, 2016). See further Protocol on Free Movement art. 10.
- 11.
Conte and Burchill, id.; Harris, O’Boyle and Warbrick, 737. See Seventh Protocol ECHR art. 1(1).
- 12.
Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia, Communication No. 71/92, 10th Activity Rep. 31 (1996–97).
- 13.
Modise v. Botswana, Comm. No. 97/93, 14th Activity Rep. 94 (2000–01). See also Protocol on Free Movement arts. 6(1), 7(1)(c), 7(2).
- 14.
Amnesty International v. Zambia, Comm. No. 212/98, 12th Activity Rep. 42 (1998–99).
- 15.
Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 UNTS 45. Currently, the Convention had been ratified by forty-six States. The Protocol on Free Movement art. 24 allows States Parties to adopt additional special measures compatible with international obligations for the movement of refugees, asylum seekers and other vulnerable groups.
- 16.
Organisation Mondiale contre la Torture et al. v. Rwanda, Comm. Nos. 27/89, 46/91, 49/91, 99/93, 10th Activity Rep. 30 (1993–94).
- 17.
Other such treaties are the ACHR Art. 22(7), the Arab Charter on Human Rights Art. 23, and the Charter of Fundamental Rights of the European Union Art. 18, Dec. 12, 2007, 2010 O.J. C 83/02. The European Court of Human Rights has observed that neither the ECHR nor its Protocols protect a right to political asylum, Hirsi Jamaa v. Italy, id. On the African contribution to the evolution of the law on asylum, see Gino J. Naldi and Cristiano d’Orsi, “The Multi-Faceted Aspects of Asylum Law Applicable to Africa: Analysis for Reflection”, Loyola of Los Angeles International & Comparative Law Review 36, no. 1 (2014–15): 115.
- 18.
Convention Relating to the Status of Refugees art. 1(a)(2), July 28, 1951, 189 UNTS 137.
- 19.
See also Protocol on Free Movement art. 21(1).
- 20.
Institute for Human Rights and Development in Africa v. Angola, 63–65; Organisation Mondiale contre laTorture v. Rwanda, 30; Union Interafricaine des Droits de l’Homme et al v. Angola, Comm. No. 159/96, 11th Activity Rep. 19–20 (1997–98); Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development (on behalf of Andrew Barclay Meldrum) v. Zimbabwe, Comm. No. 294/2004, 26th Activity Rep. 116 (2008–09). The Inter-American Court of Human Rights has stated that, “Due process of law is a right that must be ensured to all persons, irrespective of their migratory status”, Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion, Inter-Am. Ct. H.R., OC-18/03 (Sept. 17, 2003), 121. See also General Comment No. 15, 9.
- 21.
Institute for Human Rights and Development in Africa v. Angola, 63; Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia, 23; Union Interafricaine des Droits de l’Homme v. Angola, 19–20. This is the position under the Seventh Protocol ECHR art. 1(1), Harris, O’Boyle and Warbrick, 747, and under ACHR art. 22(6).
- 22.
Union Interafricaine des Droits de l’Homme v. Angola, 23; Zimbabwe Lawyers for Human Rights v. Zimbabwe, 114. See also Juridical Condition and Rights of Undocumented Migrants, 118.
- 23.
Kenneth Good v. Botswana, 203.
- 24.
Ibid., 203–4.
- 25.
Anudo Ochieng Anudo v. Tanzania, Afr. Ct. H.P.R., Appl. No. 012/2015 (Mar. 22, 2018), 100.
- 26.
Organisation Mondiale contre la Torture v. Rwanda, 30. See also Anudo Ochieng Anudo v. Tanzania, 101. See also General Comment No. 15, 10; Conte and Burchill, 74.
- 27.
General Comment No. 15, 9–10.
- 28.
Ibid., 7.
- 29.
Kenneth Good v. Botswana, 163–64, 169–70. See also Zimbabwe Human Rights NGO Forum v. Zimbabwe, Comm. No. 245/2002, 21st Activity Rep. 213 (2005–06). The right to a fair trial has been held a fundamental human right, African Commission on Human and Peoples’ Rights v. Libya, Afr. Ct. H.P.R., App. No. 002/2013 (June 3, 2016), 89.
- 30.
Kenneth Good v. Botswana, 172–73.
- 31.
Ibid., 175.
- 32.
Ibid., 177. See also Amnesty International v. Zambia.
- 33.
Kenneth Good v. Botswana, 193–94.
- 34.
Ibid., 212. See also Amnesty International v. Zambia, 58–59; Modise v. Botswana, 93. Interference with the family requires good reason, it being the “natural unit and basis of society”, African Charter art. 18(1).
- 35.
Zimbabwe Lawyers for Human Rights v. Zimbabwe, 113–16.
- 36.
Ibid., 93–94. See also Juridical Condition and Rights of Undocumented Migrants, id.
- 37.
Zimbabwe Lawyers for Human Rights v. Zimbabwe, 96–98.
- 38.
Ibid., 102.
- 39.
Ibid., 103–9. The African Commission also found that Meldrum’s freedom of expression, guaranteed by art.9 of the African Charter, had been violated, id., 112.
- 40.
Organisation Mondiale contre la Torture v. Rwanda, 30, 34.
- 41.
Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia, 20; African Institute for Human Rights and Development v. Guinea, 69. This prohibition is reinforced by the Protocol on Free Movement art. 20. Cf. Fourth Protocol ECHR art. 4; ACHR art. 22(9); EU Charter of Fundamental Rights art. 19(1). In the absence of a suitable definition of “mass expulsion” by the African Commission, it should be noted that the European Court of Human Rights has defined the comparable concept of “collective expulsions” as “any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group”, Hirsi Jamaa v. Italy, 166.
- 42.
Organisation Mondiale contre la Torture v. Rwanda, 33; African Institute for Human Rights and Development v. Guinea, 43.
- 43.
African Institute for Human Rights and Development v. Guinea, 67–69; Institute for Human Rights and Development in Africa v. Angola, 68; Union Interafricaine des Droits de l’Homme v. Angola, 16.
- 44.
Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia, 21; Organisation Mondiale contre la Torture v. Rwanda, 32; African Institute for Human Rights and Development v. Guinea, 69. See also General Comment No. 15, 2.
- 45.
Organisation Mondiale contre la Torture v. Rwanda, 32. See also African Institute for Human Rights and Development v. Guinea, 72.
- 46.
Institute for Human Rights and Development in Africa v. Angola, 69–70.
- 47.
Ibid., 70. See N.D. and N.T. v. Spain, Eur. Ct. H.R., Appl. Nos. 8675/15 and 8697/15 (Oct. 3, 2017), 121.
- 48.
Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia, 23.
- 49.
Resolution 114 on Migration and Human Rights, African Commission on Human and Peoples’ Rights, 42nd Ordinary Session (Brazzaville, Republic of Congo, Nov. 15–28, 2007) http://www.achpr.org/sessions/42nd/resolutions/114/
- 50.
Treaty Establishing the African Economic Community (AEC Treaty), also known as Abuja Treaty, June 2, 1991, I.L.M. 30 (1991): 1241. Presently, the AEC Treaty had been ratified by fifty AU Member States. See specifically art. 4(2)(1). For analysis, see Gino J. Naldi and Konstantinos Magliveras, “The African Economic Community: Emancipation for African States or Yet Another Glorious Failure?” North Carolina Journal of International Law and Commercial Regulation 24, no. 3 (1999): 601.
- 51.
Agreement Establishing the African Continental Free Trade Area, Mar. 21, 2018, https://au.int/sites/default/files/treaties/36437-treaty-consolidated_text_on_cfta_-_en.pdf, entered into force May 30 2019. It was concluded as part of the Pan African Vision of “An integrated, prosperous and peaceful Africa”, which is enshrined in Aspiration 2 of the so-called “Agenda 2063: The Africa we Want”. At the time of writing, twenty-eight AU Member States had ratified it, but it is expected that that number will increase in the months to come.
- 52.
AfCFTA art. 3(a).
- 53.
Note that AfCFTA art. 3(c) envisages another type of migration which concerns the movement of capital; according to it, natural persons will be allowed to move from one contracting party to another as this will “facilitate investments building” in the territory of contracting parties.
- 54.
See supra note 4.
- 55.
See the Protocol on Rules and Procedures on the Settlement of Disputes, which was adopted together with the AfCFTA Agreement, supra note 51.
- 56.
Presently, the instrument establishing the Court has received only seven out of the required fifteen ratifications. For analysis, see Gino J. Naldi and Konstantinos D. Magliveras, “The African Court of Justice and Human Rights: A Judicial Curate’s Egg” 9, no. 2 International Organizations Law Review (2012): 387–453.
- 57.
Cited by Bernardo Mariano, “Free Movement of Persons in Africa: What are the benefits and challenges?”, IOM-UN Migration, October 12, 2018, https://medium.com/@UNmigration
- 58.
Generally, see International Organization for Migration, Regional Guidelines for the Development of Bilateral Labour Agreements in the Southern African Development Community, Maputo, Mozambique, 2016, https://publications.iom.int/system/files/pdf/regional_guide_bilateral_labour_agreements.pdf
- 59.
Note that the AU recognizes the following eight RECs: the Arab Maghreb Union (UMA); the Common Market for Eastern and Southern Africa (COMESA); the Community of Sahel-Saharan States (CEN-SAD); the East African Community (EAC); the Economic Community of Central African States (ECCAS); the Economic Community of West African States (ECOWAS); the Intergovernmental Authority on Development (IGAD); and the Southern African Development Community (SADC).
- 60.
ECOWAS Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, May 29, 1979, http://documentation.ecowas.int/download/en/legal_documents/protocols/PROTOCOL%20RELATING%20TO%20%20FREE%20MOVEMENT%20OF%20PERSONS.pdf; a number of Supplementary Protocols have subsequently been adopted. Generally, see Olatunde J. Ojo “Integration in ECOWAS: Successes and Difficulties” in Regionalisation in Africa: Integration and Disintegration, ed. Daniel C. Bach (Oxford: James Currey Publishers, 1999), 119–27; and Adepoju Aderanti, “Fostering Free Movement of Persons in West Africa: Achievements, Constraints, and Prospects for Intraregional Migration” International Migration 40, no. 2 (2002): 3–28.
- 61.
COMESA Protocol on Free Movement of Persons, Labour, Services, Right of Establishment and Residence, June 29 1998, http://www.visafree.ccpau.org/wp-content/uploads/2017/10/COMESA-Protocol-on-Free-Movement-of-Persons.pdf. Presently, there are four signatory parties (Burundi, Kenya, Rwanda and Zimbabwe) but only Burundi and Rwanda have ratified it. A Protocol on the Gradual Relaxation and Eventual Elimination of Visa Requirements has also been concluded.
- 62.
SADC Protocol on Facilitation of the Movement of Persons, Aug. 18 2005, https://www.sadc.int/files/9513/5292/8363/Protocol_on_Facilitation_of_Movement_of_Persons2005.pdf, not yet in force.
- 63.
Protocol on the Establishment of the East African Community Common Market, Nov. 20 2009, in force July 1 2010, http://eacj.eac.int/?page_id=748
- 64.
Generally, see Konstantinos Magliveras, “Protecting the Rights of Migrant Workers in the Euro-Mediterranean Partnership” Mediterranean Politics 9 (2004): 459–488.
- 65.
Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels, February 26 1996, OJ L 70, 18.3.2000, p. 1.
- 66.
Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou, June 23 2000, O.J. L 317/3, revised June 25 2005, O.J. L 209/27, revised June 22 2010, O.J. L 287/1, last amended by Council Decision 2017/435 of 28 February 2017, OJ L 67/31. The Agreement has been extended to December 31 2020 pursuant to Decision No. 3/2019 of the ACP-EU Committee of Ambassadors of December 17 2019, 2020 O.J. L 1/3.
- 67.
See Evita Schmieg, EU and Africa: Investment, Trade, Development – What a Post-Cotonou Agreement with the ACP States Can Achieve, Berlin: Stiftung Wissenschaft und Politik, Comment No. 1, January 2019, 3.
- 68.
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, 2220 UNTS 3. More than half of the current fifty-five contracting parties are African. Generally, see Konstantinos Magliveras, “Migrant Workers’ Rights in the Euro-Mediterranean Partnership: European Union and International Law Perspectives” Hellenic Review of European Law (International Edition) (2004): 43–83.
- 69.
CMW arts. 73–74.
- 70.
Most of these documents are available and searchable at https://www.refworld.org/publisher/CMW.html
- 71.
- 72.
See Executive Council, Decision on the Mekele Retreat of the Executive Council, EX.CL/Dec.908(XXVIII)Rev.1, January 25, 2016, 18. Continental free movement of people was subsequently discussed during the July 2016 Assembly Session in Kigali, Rwanda, see Konstantinos D. Magliveras and Gino J. Naldi, The African Union: History, Institutions and Activities (2nd ed., Alphen aan den Rijn: Wolters Kluwer, 2018): 88.
- 73.
Treaty on the Functioning of the European Union, Title IV, Dec. 13, 2007, 2010 O.J. C 83/47.
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Magliveras, K.D., Naldi, G.J. (2021). Migration and Human Rights in Africa. In: Abegunrin, O., Abidde, S.O. (eds) African Migrants and the Refugee Crisis. Springer, Cham. https://doi.org/10.1007/978-3-030-56642-5_3
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