A/HRC/41/44
migrants or refugees; threats to prosecute, deport or suppress those who campaign on behalf
or speak in support of them (or the actual taking of such measures); and the prosecution or
suppression of persons who participate in a reasonable way in protests on board aircraft in
solidarity with irregular migrants about to be deported, are prima facie violations of this
right. The enjoyment of this right is explicitly limited by the permission granted to States in
article 19 (3) to enact “necessary” restrictions “for respect of the rights or reputations of
others” and “for the protection of national security or of public order, or of public health or
morals.” Except in the case of protests on board aircraft, the criminalization or suppression
of protests in solidarity with irregular migrants and refugees is manifestly unjustifiable,
even under any of these permissible limitations. Even so, not every act of protest on board
an aircraft can be justifiably suppressed or criminalized in the interests of national security.
Such restrictions must be strictly necessary and justifiable in the circumstances. 68
Right to a fair hearing
39.
The right to a fair hearing is guaranteed in article 14 of the International Covenant
on Civil and Political Rights. A key component of that right is the right to legal counsel for
those charged with or likely to be charged with breaking the law. The enjoyment of that
right is violated by any law or practice that functions to restrict or negate access to a lawyer
of one’s choice. Thus, the right would be violated by the prosecution or suppression of
humanitarian-minded lawyers who provide legal advice to irregular migrants. That is so
because such prosecutions and acts of suppression will have the effect of discouraging
many lawyers from providing advice to irregular migrants or refugees, thereby restricting
significantly their rights to access to legal counsel.
Right to adequate housing
40.
The right to adequate housing is guaranteed in article 11 of the International
Covenant on Economic, Social and Cultural Rights as a component of “the right of
everyone to an adequate standard of living.” States parties to the Covenant are required by
this provision to take appropriate steps to ensure the realization of this right. The
criminalization or suppression of humanitarians who rent accommodation to irregular
migrants or refugees and the prosecution or suppression of religious authorities, NGOs and
others who provide housing or sanctuary to them are prima facie serious violations of this
right. The Committee on Economic, Social and Cultural Rights has authoritatively
interpreted the Covenant as requiring States to guarantee to “everyone” within their
territory a “minimum core entitlement” to each right contained in that treaty, such as the
right to adequate housing.69 Instructively, only developing countries are given some wiggle
room in article 2 (3) to determine to what extent they may refrain from guaranteeing this
kind of right to non-citizens, such as irregular migrants. The case of European Council of
Churches v. The Netherlands before the European Committee on Social Rights is also
illustrative of the validity of the positions taken here by the Independent Expert.70
Right to food and to an adequate standard of living
41.
The right to food is guaranteed in article 11 of the International Covenant on
Economic, Social and Cultural Rights as a component of “the right of everyone to an
adequate standard of living.” In line with the arguments in the previous paragraph, it
becomes clear that the prosecution or suppression of humanitarians who provide the
necessities of life, such as food, water, medical help, clothing and showers, to irregular
migrants and refugees is also a serious violation of this right and that the “progressive
realization” clause discussed above does not save such acts of criminalization and
suppression from being illegal under international human rights law.
68
69
70
See Bakur v. Belarus (CCPR/C/114/D/1902/2009), paras. 7.4, 7.7, and 7.9–7.10.
See Committee on Economic, Social and Cultural Rights, general comment No. 4 (1991) on the right
to adequate housing; and I.D.G v. Spain. (E/C.12/55/D/2/2014), para. 11.1.
See Conference of European Churches v. the Netherlands (decision on the merits, 1 July
2014), complaint No. 90/2013, paras. 31–32, 34–35, 37, 41, 45, 48 and 113.
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