An estimated 80,000 migrants have been displaced by the recent wave of anti-immigrant violence in South Africa. While some have returned to their home countries – including Burundi, Ethiopia, Ghana, Malawi, Mozambique and Zimbabwe - most have been settled temporarily in seven camps, and the South African government aims to reintegrate them in the host communities from which they were forced to flee in the next few months.
An important lesson learned in other displacement situations around the world – whether arising from civil strife, conflict or natural disasters – is that attention needs to be paid to protecting the rights of the displaced. In South Africa migrant families have been separated during displacement. Agencies including Human Rights Watch, Medecins Sans Frontieres and Oxfam have reported overcrowding, poor shelter and deteriorating health conditions in camps. Many of the displaced either have no documentation or have fled without their documentation, which may impede access to education or medical assistance and possibly make them targets for forced returns if they cannot prove that they have legal status. The displaced are often particularly susceptible to discrimination and gender-based violence. There is no guarantee that they will still have homes or jobs if they do go back to their host communities. And there is currently a lack of consultation and information-sharing with the displaced in South Africa on next steps.
Just what the rights of these displaced migrants are, however; and who is responsible for protecting them; is by no means straightforward.
International migration law defines the responsibilities that host states have towards migrants, for example as regards protecting their human rights and procedural guarantees in areas such as detention or expulsion. These rights derive from two sets of international instruments: the core human rights treaties and the UN Convention on Migrant Workers; and migrants’ rights are also protected under a variety of regional treaties. A good proportion of those currently displaced in South Africa, however, do not have legal status, and the rights of ‘irregular’ migrants are contested in international migration law. Indeed one reason why so few states have ratified the UN Convention on Migrant Workers is because it explicitly extends rights to migrants without legal status that are not contained in other human rights treaties. South Africa has not ratified the Convention.
Some commentators have suggested that the displaced migrants should be considered internally displaced persons (IDPs), irrespective of their legal status. The Guiding Principles on Internal Displacement (developed through a process supported by the Brookings Institution) spell out the rights of people who are displaced internally, but generally do not apply to displaced migrants. The Guiding Principles define internally displaced persons as ‘…persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence…and who have not crossed an internationally recognized state border.’ An argument might be made that for long-term migrants with legal status their homes or places of habitual residence are now in their host country, although how long a migrant needs to have been present for this to be the case is unclear in law. Many of the migrants displaced in South Africa, however, have been there for only a short period of time and many do not have legal status. Furthermore the Guiding Principles are not binding upon states, and do not guarantee rights even for those among the displaced migrants who might be considered IDPs.
Although none of the displaced migrants in South Africa have been reported either to have refugee status or formally to have applied for asylum, UNHCR believes that at least some of those who originate in Zimbabwe may be entitled to refugee status, either because they fled persecution in Zimbabwe, or because to return there would now endanger them. Were they to be formally granted refugee status their rights would be protected, irrespective of whether or not they have been subsequently displaced internally, by the1951 Convention relating to the Status of Refugees and its 1967 Protocol, as well the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, of all of which South Africa is a signatory. The key protection conferred by these Conventions is against refoulement or forced return to a country of origin where it is not safe to return.
A significant proportion of the migrants currently displaced in South Africa therefore fall into a protection gap in the existing normative framework as they do not have regular status, are not long-term residents, and have not lodged asylum claims. At the same time there are practical obstacles to protecting the rights even of those displaced migrants who are unequivocally entitled. The fact that many of the displaced do not have documentation, for example, makes it almost impossible to discern legal from illegal migrants, and also difficult for them to prove their claims for asylum. And the fact that sixty-two migrant workers have been killed, 670 injured and tens of thousands displaced by violence to sub-standard camps raises legitimate concerns about the capacity of the South African government to fulfill even those commitments to which it has formally agreed.
There are some immediate steps the South African government should be urged to take. First, the government should give a clear commitment that none of the displaced migrants will be deported. The risk of deporting people with a legitimate claim on refugee status or migrants who cannot prove their legal status because they have lost their documentation is too high. Second, the government should work with UNHCR to process asylum claims in particular for those displaced from Zimbabwe. Third, the government should consider a limited and targeted program of regularization as a way of securing the rights of those among the displaced who do not currently have legal status.
Supplementary and complementary mechanisms for protection are also required. The displaced should be given access to legal systems and national courts should apply international human rights law to cases that come before them. Civil society should be empowered to monitor and report on conditions in the camps, to provide services and information, and to lobby for the rights of the displaced migrants. The governments of the migrants’ origin countries should be enlisted to support protection efforts, for example by upholding the principle of consular access to non-resident nationals in South Africa. Relevant UN Special Mechanisms – including the Special Rapporteur on the human rights of migrants and the Representative of the Secretary-General on the human rights of internally displaced persons – should be mobilized.
This is not the first time that migrants have been targeted and displaced in South Africa, and it may not be the last. Unemployment in the country is currently running at 30 percent and may well fuel further scape-goating of migrants, despite anti-xenophobia programs currently being developed. And South Africa is by no means alone in hosting large number of migrant workers – many of them without legal status – who are subject to discrimination and victims of violence. The crisis in South Africa should provide a catalyst to find innovative ways to fills the current gaps in the existing normative framework. At the very least there may be value in articulating in a single compilation the existing treaty provisions and other norms that relate to the protection of the rights of migrant workers, and in facilitating the consistent implementation of the provisions.