E/CN.4/2006/73
page 7
20.
It should be noted that over the years the mandate of the Special Rapporteur on the
human rights of migrants has intervened in a number of cases regarding allegations of human
rights violations concerning asylum-seekers and persons seeking refuge, provided the persons
concerned did not have refugee status. In her 2002 report, the Special Rapporteur highlighted
the connection between asylum and migration and declared that she “[found] it increasingly
difficult to distinguish between the two” (E/CN.4/2002/94, para. 42). The Special Rapporteur
will not take a position on whether a person seeking asylum should or should not be granted
refugee status. Where reports refer to one or more persons who have been granted refugee status
under the 1951 Convention relating to the Status of Refugees, or to the application of legal
procedures carried out in respect of the provisions of that Convention by the Office of the
United Nations High Commissioner for Refugees (UNHCR), the Special Rapporteur will, as did
his predecessor, continue to use his good offices to transmit such allegations to that agency
(see E/CN.4/2005/85, para. 52.)
B. Legal framework
21.
As did his predecessor, the Special Rapporteur carries out his work within the framework
of the Universal Declaration of Human Rights and all other applicable international instruments,
which may include the International Covenants on Human Rights, the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on
the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of
the Child, the International Convention on the Elimination of All Forms of Racial
Discrimination, and the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families.1 The Special Rapporteur considers the last to be of
particular importance as it provides a coherent framework regarding many of the very specific
issues addressed by the mandate.
22.
The definitions given in the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants
by Land, Sea and Air, supplementing the United Nations Convention against Transnational
Organized Crime are also relevant.2
23.
A number of instruments adopted by the ILO can also be relevant to the mandate and
provide important guidance on specific issues. In addition to specific instruments such as the
Migration for Employment Convention (Revised) 1949 (No. 97), and the Migrant Workers
(Supplementary Provisions) Convention, 1975 (No. 143) and accompanying Recommendations
Nos. 86 and 151, a number of instruments on subjects of particular concern are also of great
importance. These include the seven fundamental human rights Conventions,3 the Private
Employment Agencies Convention, 1997 (No. 181) and the 1998 Declaration on Fundamental
Principles and Rights at Work.
24.
Moreover, in his work, the Special Rapporteur may take into account other applicable
international instruments as well as the decisions and jurisprudence of international courts,
bodies and mechanisms which can provide guidance regarding certain themes.