Sharing International Responsibility for Poor Migrants?
| Author | Marlies Hesselman |
| DOI | 10.1177/138826271301500205 |
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 15 (2013), No. 2 187
SHARING INTERNATIONAL
RESPONSIBILITY FOR POOR MIGRANTS?
AN ANALYSIS OF EXTRATERRITORIAL
SOCIOECONOMIC HUMAN RIGHTS LAW
M H*
Abstract
is article analyses possible legal bases for the establishment of extra-territorial
socio-economic human rights obligations on the part of wealthier European
‘Destination Countries’ vis-à-vis poor migrants. In particular, it considers whether
obligations of international cooperation and assistance under the International
Covenant on Economic Social and Cultural Rights (ICESCR) might provide a basis
for addressing socio-economic deprivation in Countries of Origin and lead to the
provision of social assistance. e article also analyses the socio-economic case-law
under Article3 of the European Convent ion on Human Rights (ECHR) in respect of
expulsion of migrants (e.g. MSS v Belgium and Greece, Su and Elmi v the UK, and
SHH v the UK).
e analysis of these documents supports the claim that wealthy states can attract
responsibilities for providing protec tion against living in poverty for persons in other
countries. At the same time, although language and semantics relating to extra-
territorial socio-economic protection are converging under the ICESCR and ECHR,
there are a number of pertinent questions that remain in the sphere of concrete
burden sharing. e se relate primarily to the allocation to wealthy European states of
concrete burdens of responsibility for th e elimination/prevention of poverty in other
countries and raise the question of how far th e responsibility stretches.
* Marlies Hessel man LLM is a PhD candidate in t he Faculty of Law, Department of Internat ional
and Constitutional Law, University of Groningen. Address: Oude Kijk in ‘t Jatstraat 26, 9700 AS
Groningen, the Net herlands; tel.: +31 (0) 64174 3880; e-mail: m.m.e.hes selman@rug.nl e aut hor
would like to th ank her colleag ues Dr. A.J.J. de Hoogh, Dr. A.G. Ha llo de Wolf and D. Beltman, L LM
for their comments to i nitial dr a s of the art icle, and an anony mous reviewer for usef ul input on the
nal dra . e article al so bene ted from presentation a nd discussion at “Inter national Conference
on Social Protec tion and Migrat ion: Access Denied: work ing on a new paradig m”, Vrije Universiteit
Amsterdam, 13 –14March 2012. Any errors, of course, rema in her own.
Marlies Hessel man
188 Intersentia
Keywords: ECHR; extra-territorial obligations; human rights; ICESCR; migrants;
social assistance
1. INTRODUCTION
It should be clear to anyone who is concerned with global migration that irregular
migration is ‘one of the telling signs’ of the severe socio-economic imbalances in
our contemporary society, ‘aggravated by economic globalisation and the rapid
impoverishment of the underdeveloped countries’ (International Law Commission
2006: para. 30). In fact, every year a great number of migrants try to cross
international borders in the hope of gaining a better life elsewhere, whether for
political, economic or social reasons and as ‘global disparities continue to grow’,
the problem of migration is becoming ever more urgent and, arguably, in need of
structur al attention (International Law Commission 200 6: para. 30; Triandafyl lidou
2010: 13).
is article focuses on the socio-economic aspects of migration, and in
particula r analyses whether wealthy European ‘Destination’ countries may attrac t
responsibilities for extr a-territorial social protection or assista nce in the context of
international human rights law. In this respect, the ar ticle focuses on two possible
bases of protection. First, it analyses the so-called obligations of ‘international
cooperation and assista nce’ under the International Covena nt on Economic Social
and Cultural R ights (ICESCR). Second, it analyses the developing socio-economic
case-law under Article3 of the European Convention on Human Rights (ECHR),
which indicates that European States may attract obligations of protection in
respect of a migrant who would be unable to cater for his/her own basic needs
abroad, including the provision of basic levels of food, hygiene, shelter and social
support.
1
e overarching argument developed in the article is that, when considering all
the above avenues for protection, a certain ‘internationally shared responsibility’ for
the socio-economic protection of migrants, which requires wealthy States to help
migrants through measures of social protection when they are forced to live in a
situation of extreme poverty abroad, seems to emerge. At the same time, there are
some issues that need to be resolved in order for this responsibility to take practical
e ect.
1 See e.g. ECtHR 2 8June 2011, Appl. Nos. 8319/07 and 11449/07 Su and Elmi v the United Kingdom,
paras. 279 and 283; ECtHR 21 January 2011, Appl. No. 30696/09 MS S v Belgium and Greece,
paras.246 and 25 4; ECtHR 2May 1997, Appl. No. 30240/96 D. v the United Kin gdom, ECHR Reports
1997-III, paras.52 a nd 53.
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