Migrants have no dedicated advocate within the fractured landscape of the UN system. Could that be changed?
On 22 February US President Donald Trump issued new deportation rules to find, arrest and deport irregular immigrants in the United States who have been convicted of any crime. The Mexican Foreign Minister, Luis Videgaray, responded by stating that Mexico will go to the United Nations to defend the rights of immigrants in the United States.
None of the existing international institutions are adequately mandated, financed or supported to explicitly protect migrants’ rights.
Interestingly, that sort of response has been the exception. Very few commentators have looked to international institutions to advocate against Trump’s deportation policy, or his earlier executive order severely restricting immigration from seven predominantly Muslim countries. This is likely due to the fact that the international advocacy infrastructure around migrants’ rights is weaker than in most other advocacy issue areas. However, in the current context of surging nationalist populism in many countries, the need for a new convention on migrants’ rights and a competent entity to oversee, promote and censure violations of these same rights is becoming ever clearer.
This article outlines the map of institutions mandated in whole or in part to cover global migration, the weaknesses of the current normative and institutional framework, and recommends creating a new convention to strengthen migrant rights’ advocacy at the international level.
A patchwork of institutions and treaties are involved in the articulation and defence of migrants’ rights. Inside the United Nations common system (UN), the International Labour Organisation (ILO), the United Nations High Commissioner for Refugees (UNHCR), the UN Department for Social and Economic Affairs (DESA), the Global Migration Group (GMG), and a collection of special advisors and rapporteurs all address the issue of migrants’ rights to varying degrees. Additionally, the International Organisation for Migration (IOM) is a major player, in its own right, in the migration field. Each actor has different competencies, which are detailed below. However important gaps remain as none of these entities are adequately mandated, financed or supported to explicitly protect migrants’ rights.
The International Labour Organisation (ILO) acts as the custodian for the International Convention on the Rights of All Migrant Workers and Members of their Families (migrant workers’ rights convention). This international treaty was adopted by the UN General Assembly in 18 December 1990 and entered into force on 1 July 2003. However, only 50 states have ratified the treaty, fewer than most other major UN human rights conventions. Moreover, these 50 states do not include either the US or any other western European state. Thus this treaty holds little legal sway in many countries where migrants’ rights are under threat.
Support for the migrant workers’ rights convention stands in stark contrast to state support for the 1951 Refugee Convention and its 1967 adjoining Protocol. With 148 state parties, these instruments provide a robust normative foundation for the protection of refugee rights. However they are only applicable to the small group of people who meet the onerous ‘refugee status determination’ threshold. As a result, even though the convention and protocol have broad international support, including from most western states, this document does not protect the rights of migrants more generally.
The narrow focus of the Refugee Convention directly shapes the mandate of the Office of the UN High Commissioner for Refugees (UNHCR), the inter-governmental organisation which oversees the Refugee Convention. UNHCR has, in practice, extended its support to some forcibly displaced groups that do not meet the convention’s criteria. However, the organisation is also quick to distinguish between the needs of these “persons of concern” on the one hand (i.e. stateless persons, internally displaced persons, and those under temporary, complimentary or humanitarian protection, etc.) and the rights of migrants on the other.
The UN Department of Economic and Social Affairs (DESA) is another player in the field of international entities concerned with migration. It is the home to the UN’s migration unit and produces yearly statistics on global migration patterns. However, DESA is largely headquarters-based, short-staffed in its migrant functions, and more focused on research and data production than on advocacy or operational activities.
Stretching across the various agencies, funds and programmes of the United Nations is the UN Global Migration Group (GMG) – an inter-agency body composed of 21 entities. To date, it has performed largely a coordination and information-sharing function for different parts of the UN system and for the Global Forum on Migration and Development (GFMD), an inter-governmental and civil society forum on global migration. Given that it lacks a standing secretariat, an explicit advocacy mandate, and adequate funding, it is unlikely that the GMG can play the role of advocate-in-chief for migrants’ rights in its current form.
Finally, there are various UN special rapporteurs charged with defending migrants’ rights including: the special rapporteur on the rights of migrants; the special rapporteur on the human rights of internally displaced persons, both appointed by the UN Human Rights Council; as well as the secretary-general’s special representative on international mass migration. These individuals are experts in their respective fields, and operate with a great degree of independence. However, these UN appointees are assisted by few if any full-time staff, hold only temporary mandates, write reports that states too often ignore, and are thus limited in their ability to advocate effectively.
The International Organisation for Migration (IOM), another actor in this field, was originally established outside the UN and has no provisions in its constitution to defend migrants’ rights against state abuse. IOM’s constitution stipulates (in article 1.3) that control of standards of admission and the number of immigrants to be admitted are matters falling within states’ domestic jurisdiction. In carrying out its functions, therefore, IOM must conform to the laws, regulations, and policies of the states concerned rather than hold them accountable to normative standards of treatment regarding migrants. As a result, IOM has functioned broadly as a service provider for states rather than as a monitor and promoter of the rights and needs of people on the move. Furthermore, IOM has limited autonomy, as over 95% of its financing is earmarked by states for specific programming.
In July 2016, the UN General Assembly adopted a resolution making IOM a ‘United Nations related organisation’, and recognised it as the “global lead agency on migration”. While this brings the IOM slightly closer to the UN fold, IOM’s mandate continues to be explicitly “non-normative”.
Despite the presence of all of these players within the global migration field, a strong, central voice defending migrants’ rights is missing. This advocacy gap is filled, in part, by civil society groups, which advocate on migrants’ behalf at the meetings of the GFMD and elsewhere. But civil society, of course, lacks an inter-governmental mandate or the power to conclude international treaties on its own. There therefore remains a need for a dedicated, resourced, institutionalised advocate with an explicit mandate to articulate, promote, and defend the rights of migrants against state violations.
Recent developments could improve global advocacy in this area. First, in September 2016, 193 heads of state met at the UN Headquarters in New York for a high level summit on refugees and migrants. This summit generated the ‘New York Declaration’, which called for the creation of two global compacts, one concerning “safe, orderly and regular migration” and another concerning responsibility sharing vis-à-vis refugees. DESA and IOM were appointed to shepherd the first of these to fruition, while UNHCR is the UN focal point for the latter. Both have a target date of end of 2018. Civil society and academia will be feeding into the negotiation processes.
Delivering a strong global compact on migration is an important first step. To this end, a small group of migration-related entities, including many of those outlined above, are working with the Office of the President of the General Assembly and the Office of the Special Representative on International Mass Migration to shape the consultation process for the global compacts. As part of this consultation, a series of thematic debates will take place. The first of these debates, to be held in early May, will focus on human rights in the context of migration.
The current migrant workers’ rights convention is too limited in its target group and has never received sufficient support to qualify as a robust protection mechanism.
A global compact, however, is not legally binding on states, and therefore needs to be supplemented by an additional step. If the international protection of migrants’ rights are to be made as robust as that of other vulnerable groups, states would need to negotiate a general convention on migrants’ rights as well. The current migrant workers’ rights convention is too limited in its target group and has never received sufficient support to qualify as a robust protection mechanism. It does not cover irregular or undocumented persons, students, trainees, stateless persons, refugees, or those fleeing generalised violence or natural disasters. The rights conferred by this convention, however, which are broad in scope, should serve as a source of inspiration for the elaboration of a general migrants’ rights convention.
This new general migrants’ rights convention would need a ‘home’. IOM could be the treaty body secretariat for this convention, just as UNHCR is for the Refugee Convention and its Protocol. In this scenario, IOM could remain simply ‘affiliated’ to the UN and thereby continue to proceed without the bureaucratic encumbrances associated with membership in the UN common system. Such a setup would have its benefits, as it would anchor IOM’s activities in a normative framework, centred on migrants rather than on states. In other words, the needs of states would no longer simply Trump migrants’ rights (pun intended). Is it unlikely, however, that states would give IOM such a role, and unclear whether IOM would be willing to oversee such a convention given its existing constitution.
Alternatively, the mandate of the United Nations Office of the High Commissioner for Human Rights (OHCHR) could be extended to cover the monitoring of the new general convention on migrants’ rights. Although OHCHR does not have IOM’s thematic or operational expertise, it is one of the few UN entities with an explicit and unapologetic mandate to advocate for and assess states’ compliance with internationally recognised human rights. As outlined earlier, OHCHR already houses the two special rapporteurs on migrants’ rights. But a dedicated convention and a treaty body secretariat would provide both a universal platform against which to judge state action and a team of independent experts responsible for advocating adoption of and compliance with the convention.
Populist leaders are increasingly dominating the narrative when it comes to migration and the risks posed by immigrants. More should be done to combat that narrative and put in place concrete safeguards for migrants across the globe. A general convention on migrants’ rights housed within an appropriate entity, while not constituting a direct counterweight to the current expulsions and bans, would be an important step in challenging populist narratives and promoting the rights of some of the world’s most vulnerable people.
The views expressed are those of the author and do not reflect the views of the United Nations University.
JULIA O’CONNELL DAVIDSON
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