UN Photo/Joao Araujo Pinto/Flickr. CC (by-nc-nd)

Released 5 February, and with the first round of state commentaries having already taken place, the Zero Draft of the Global Compact on Safe, Orderly, and Regular Migration (GCM) started off strong. It claims to be “guided by human rights law and standards” and cites human rights treaties in the preamble. It further highlights migration’s impact on the sustainable development goals (SDGs), which themselves necessitate adherence to the human rights. The Zero Draft recognises that global discussions on migration are not new, and it aspires to be, as its first guiding principle proclaims, people-centred. Delegates begin discussions on the draft today, 12 March, and so it is an important time to point out that the zero draft fails in that goal.

In all of its 22 objectives and their related actions, there is no explicit mention of protecting the basic rights of all migrants, regardless of status. This is true even for those rights stated in international law and the SDGs, and those being discussed within states, regionally, and in international migration management agreements. This is a missed opportunity.

In revising the Zero Draft, states should both innovate and restate the currently disaggregated legal obligations for migrants in one place. In particular, for migrants not included in the Refugee Convention, the GCM is the place to articulate that all migrants have rights. This would implement the people-centred and therefore human-rights based approach that states seem keen to create. At this urgent moment for migrants around the world, states should go further in the GCM by adding this overall objective. This would centre the implementation of all other objectives on international legal obligations to migrants.

“All migrants, regardless of status, are holders of certain rights. States agree to ensure full responsibility and protection of their human rights and fundamental freedoms as exist in international law.”

This text likely looks familiar – the New York Declaration already recognised that all migrants are holders of certain rights.1 States already agreed to this language in the New York Declaration.2 Doing so was not revolutionary. The law already exists – just in disaggregated form. Thus, in defining the specific law pertaining to all migrants, states do not have to start from scratch. They should use the International Migrants Bill of Rights (IMBR) – a restatement of existing legal obligations pertaining to the human rights of migrants – as a baseline.

The draft GCM does articulate some key rights in the guiding principles, including: providing legal identity to migrants (Objective 4), strengthening procedures for status determination (Objective 12), using migrant detention only as a last resort (Objective 13), and eliminating all forms of discrimination (Objective 17).

But by failing to comprehensively restate existing law, states risk diminishing the pre-existing standards to which states already must abide.

But by failing to comprehensively restate existing law, states risk diminishing the pre-existing standards to which states already must abide. In adding an overall human rights objective, UN member states would therefore be merely reaffirming their own compliance with pre-existing international law, and ensure that all other states commit to the same obligations.
Within this overall human rights objective, sub-objectives should include at least each of the following references to international law. By including these legal standards in the GCM, they would pertain to all migrants, and to migrants in all locations, whether in the host state or transit state, as stated in the New York Declaration.3

The following ten references is not meant to be a comprehensive articulation of all rights implicated by the GCM, or those rights migrants possess under international law. They are, however, key rights that are currently left out of the GCM but exist in international law. They must be incorporated to ensure ongoing adherence to the law.

Additional details and citations to sources of law can be found in the full text of the IMBR and its legal commentaries.

Essential law to incorporate into the GCM

1. Right against expulsion and nonrefoulement4: This non-derogable norm includes the right against collective expulsion or any kind of discriminatory or arbitrary expulsion or deportation, including chain refoulement;5 this right applies to all migrants, and includes asylum seekers, those at risk of torture or cruel, inhuman or degrading treatment or punishment, denial of the right to life, or other deprivations of human rights.6 Migrants have a right to a remedy if this right is violated.7 This right should incorporate minimum standards for procedural safeguards to protect against expulsion and refoulement.8
2. Right to be free from disproportionate penalties on account of status. States should decriminalise entry, which criminalises migration itself.9 This is not tenable if states seek to control and benefit from migration, rather than to eliminate it.
3. Right to due process: including in criminal prosecution,10 and including the right to interpretation11 and to be informed of this right.12
4. Rights of victims of crime: migrants are frequently abused in transit and in host states.13 States may regulate smuggling and trafficking through the exercise of the penal law, but must simultaneously ensure victims are protected. Accountability mechanisms on human rights violations should ensure migrants’ fundamental rights are respected.
5. Right to health: migrants must have access to enjoy the highest attainable standard of health care that is available, accessible, acceptable, and of appropriate and good quality.14
6. Right to education: all migrant children should have the right to enjoy education, and thrive regardless of their migration status, including irregular status.15
7. Rights of freedom of opinion and expression.
8. Right to freedom of assembly and association.16
9. Right to be free and equal in dignity and rights: the right to freedom of thought, conscience, and religion or belief,17 and to enjoy the migrant’s own cultures,18 including use of the migrant’s own languages.19
10. Right to family unity: migration policies cannot result in the separation of families, create undue burdens on families, or do harm by separating children from their families. Family unity should be at the forefront of all migration policies, and when families are separated prior to or during migration, all migrants retain the right to family reunification.20

After the GCM is adopted, states will determine how to integrate it into national legislation and planning. The compact will not be a ‘one size fits all model’, but states will design and adopt policies to implement their commitments. The implementation phase will require indicators and evaluation of states’ adherence to these relevant legal obligations. In defining indicators, states and localities can draw upon the IMBR set of compliance indicators and implement the IMBR questionnaire, currently tested in 13 contexts.

To achieve the initial guiding principles of the GCM and resist watering down international law, states should include these existing laws affirmatively in the GCM, utilising the IMBR commentaries to support an explicit restatement of these rights.

1. G.A. Res. 71/1, U.N. Doc. A/RES71/1, (Sept. 19, 2016). [hereinafter New York Declaration/NY Decl.]. ¶ 26. ↩︎
2. NY Decl. ¶ 22. ↩︎
3. NY Decl. ¶ 2.5 ↩︎
4. Article 13 of the IMBR understands the country of return to designate not only the country to which removal is to be effected directly, but also any other country to which the migrant may be removed afterwards ↩︎
5. IMBR Art 11(1); ICRMW art. 22(1); Protocol No. 4 to the ECHR; ACHR art. 22(9); ACHPR art. 12. ↩︎
6. IMBR Art 13; ↩︎
7. IMBR Art 11(2); UDHR, supra note 1, art. 8; ICCPR, supra note 2, art. 2; CAT, supra note 5, art. 14; ICERD, supra note 4, art. 6; CRC, supra note 6, art. 39. See also UN Basic Principles and Guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violation; IMBR Art 11(3); ICRMW art. 22(4). ↩︎
8. IMBR Art 12(2). ↩︎
9. IMBR Art 6(2); IMBR Art 9; Of particular concern is administrative detention of migrants, the increasing use of criminal sanctions as a policy response to increases in migration, and State responses to terrorism; Protection of Migrants, U.N. GAOR, 63d Sess., 70th plen. mtg., U.N. Doc. A/RES/63/184 (Mar. 17, 2009). ↩︎
10. IMBR Art. 9(2); ICCPR art. 13; ECHR Protocol 7; OAS Charter art. 45; Inter-Am. Comm’n on Human Rights, _Access to Justice as a Guarantee of Economic, Social and Cultural Rights: A Review of the Standards Adopted by the Inter-Am. System of Human Rights _47 (2007) ¶ 182, OEA/Ser.L./V/II.129 doc. 4. ↩
11. IMBR art. 9(3); ICCPR art. 14(a)(f). ↩︎
12. IMBR art 9(4). ↩︎
13. IMBR art. 10(1). his right is most strongly recognised in instruments addressing trafficking in persons, including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) attached to the UN Convention Against Organized Crime, and the Council of Europe Convention on Action Against Trafficking in Human Beings. Council of Europe Convention on Action against Trafficking in Human Beings, May 16, 2005, C.E.T.S. No. 197. ↩︎
14. IMBR Art 21; ICESCR Gen. Com. 14, supra note 380, at para 12; UDHR art. 25; ICESR art. 12. ↩︎
15. IMBR Art 22; UDHR art. 26; ICESR art. 13; CEDAW art. 10; CRC art. 28. ↩︎
16. IMBR Art. 17; UDHR art. 19; ICCPR art. 19; ICMRW art. 13. ↩︎
17. IMBR Art 16; ICCPR Art. 4.2, 18; UDHR Art. 18. ↩︎
18. IMBR Art 23. ↩︎
19. IMBR Art 23(1); UDHR Art. 27, ICCPR Art. 27. ↩︎
20. NY Decl. ¶4.16. ↩︎