Content of the supranational instruments applicable in Niger

The legal framework as reflected in relevant regional and international instruments recognizes the following basic human rights of migrants:

▪ right to legality and non-discrimination;

▪ right to life;

▪ right to the respect of one’s dignity, right not to be subjected to any form of human exploitation and degradation (slavery, torture, cruel, inhuman or degrading treatment);

▪ right to liberty and security of the person, including the right not to be arbitrarily arrested or detained;

▪ right to a hearing, right to a fair trial;

▪ right of access to information;

▪ freedom of association and assembly;

▪ right to participate in the management of public affairs;

▪ right to leave and return to any country, including one's own;

▪ right of every individual who is lawfully within the territory of a State to move freely;

▪ right of ownership;

▪ right to work under fair and satisfactory conditions and to receive equal pay for equal work;

▪ right to education;

▪ right to protection of the family and vulnerable groups, including women, children, persons with disabilities and the elderly.

The international law binding the Republic of Niger highlights a number of rights and principles from which States cannot derogate even in emergency situations¹³⁹. These include the following rights:

139 Article 4 of the International Convention on civil and political rights

▪ right to life;

▪ prohibition of torture and other cruel, inhuman or degrading treatment or punishment, and medical or scientific experiments carried out without the free consent of the person concerned);

▪ prohibition of slavery, slave trade and servitude);

▪ prohibition of imprisonment of a person unable to fulfill a contractual obligation;

▪ legality of sentences and the principle of non-retroactivity of criminal laws (except the "softest" criminal law);

▪ recognition of the legal personality of each person;

▪ freedom of thought, conscience and religion.

In any event, derogations and restrictions on the enjoyment of a right shall not result in discrimination solely on the grounds of race, colour, sex, language, religion or social origin and shall only be applied if they are lawful, necessary, proportional and pursue a legitimate goal¹⁴⁰.

Thus, subject to the principles of international human rights law applicable to derogations, limitations and restrictions, migrants enjoy their fundamental rights.

In addition to the recognition of general human rights, some of the regional, international and sub-regional instruments to which Niger is bound deal specifically with rights relevant to migrants. These include the following instruments:

▪ The ECOWAS Protocol on the Free Movement of Persons, the Right of Residence and Establishment adopted in Dakar on 29 May 1979: this protocol is the instrument par excellence that guarantees the free movement of persons and goods within the ECOWAS region. It abolishes the visa for ECOWAS nationals as mentioned above.

▪ The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime: within the framework of the fight against the smuggling of migrants, this protocol lists several obligations towards States Parties. Among these obligations, States must:

o Adopt legislative and other measures to penalize the smuggling of migrants (Art 6);

o Cooperate to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea (Art 7);

o Take the necessary measures to guarantee the integrity and security of travel or identity documents and prevent their unlawful creation, issuance and use (Art 12);

140 Human Rights Committee: General comment n° 29 State of Emergency (art. 4), available at :

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o Provide specialized training for immigration and other relevant officials in the prevention, humane treatment of migrants and the prevention of the smuggling of migrants - Cooperate between States and other organizations to this end (Art 14);

o Take measures to provide or strengthen information programmes to raise public awareness of acts constituting the smuggling of migrants (Art 15);

o Ensure the protection and assistance of trafficked migrants in accordance with applicable international law (in particular, the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment) and taking into account the special needs of women and children (Art 16.1 & 16.4);

o Facilitate and accept, without unreasonable delay, the return of the smuggled migrant (Art 18).

▪ The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime: among the measures to be taken by States to combat trafficking in persons, the Protocol in its Article 10 (2) provides as follows: :

“States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons.

The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and respecting the rights of victims, including protecting them from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society”.

▪ International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: this Convention provides, among many other principles, for the right of migrant workers to freedom, to security and to have their case heard. To this end, it provides the following rights in Article 16:

o Migrant workers and members of their families who are arrested shall be informed, at the time of their arrest, if possible in a language they understand, of the reasons for their arrest and shall be promptly informed, in a language they understand, of any charges brought against them;

o Migrant workers and members of their families who are arrested or detained on a criminal charge shall be brought promptly before a judge or other authority empowered by law to exercise judicial authority and shall be tried within a reasonable time or released. Their detention pending trial should not be the rule, but their release may be subject to guarantees to ensure their appearance at the hearing, at all other stages of the proceedings and, where appropriate, for the execution of the judgment;

o If migrant workers or members of their families are arrested or are imprisoned or held in police custody pending trial or are otherwise detained:

✓ At their request, the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State shall be informed without delay about their arrest or detention and the reasons invoked;

✓ The persons concerned shall have the right to communicate with these authorities. Any communication addressed to the said authorities by the persons concerned shall be transmitted to them expeditiously and they shall also have the right to receive communications from the said authorities without delay;

✓ The persons concerned shall be informed without delay of this right and of the rights deriving from the relevant treaties

o Migrant workers and members of their families who are deprived of their liberty through arrest or detention shall have the right to bring proceedings before a court for an expeditious decision on the lawfulness of their detention and to order their release if the detention is unlawful.

o Migrant workers and members of their families who are victims of unlawful arrest or detention are entitled to compensation.

Regional and international instruments also lay down fundamental principles for the protection of vulnerable groups. These include, in particular:

▪ The best interests of the child: the best interests of the child must guide any decision affecting him or her (Article 4 of the African Charter on the Rights and Welfare of the Child). This implies, among other things:

o The obligation of the State to ensure that the child is protected from all forms of economic exploitation;

o The right of the child not to be separated from his or her parents against his or her will, unless his or her interest is at stake;

o If a child is apprehended by a State Party, his or her parents or guardian shall be informed by that State as soon as possible.

▪ Special treatment of women: temporary special measures may be adopted by States to achieve equality between men and women¹⁴¹. In particular with regard to detention, women must be given special treatment related to their status as women. For example, they must be provided with the facilities and supplies required to meet their specific hygienic needs.

▪ Special treatment of persons with disabilities: Reasonable adjustments and specific measures should be undertaken to ensure the de facto equality of persons with disabilities.

▪ Special treatment of the elderly: Elderly people should be provided with specific protection measures in relation to their physical or moral needs.

141 Article 4 (1), Convention on the elimination of all forms of discrimination against women

▪ Protection of the family: The principle of its protection is specifically laid down in Article 18 of the African Charter as mentioned above.

▪ The principle of non-return: According to this principle, no refugee should be subjected by a State to measures such as refusal of admission at the border, return or expulsion which would oblige him to return or remain in a territory where his life, physical integrity or freedom would be threatened.

5.2.2 Content of the main national instruments