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The New York Declaration for Refugees and Migrants, adopted by the United Nations (UN) General Assembly on 19 September 2016, called for the adoption of two compacts by the end of 2018, one on refugees and the other on migrants. The Refugee Compact was presented to the UN as an annex to the UN High Commissioner for Refugees’ annual report in September 2018. The Global Compact on Migration (Migration Compact) will be adopted in Marrakesh, Morocco, at a special meeting of the UN General Assembly on 10–11 December 2018. This article examines the human rights of migrants in the context of the Migration Compact. The New York Declaration contained over 30 references to human rights. The Migration Compact has 45 references. Its preamble states that the Migration Compact rests on the purposes and principles of the UN Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other core international human rights treaties. But it also rests, according to paragraph 2, on international criminal law, the two Palermo protocols against trafficking and smuggling of human beings, the slavery conventions, international climate change law, international labour law, and the UN sustainable development commitments. This is quite a menu of international obligations. The framing of the Migration Compact stems from the UN development arena, in particular, Goal 10.7 of the 2030 Agenda for Sustainable Development to ‘[f]acilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well managed migration policies’. However, the Migration Compact changes the language from ‘orderly, safe, regular and responsible migration’ to ‘safe, orderly and regular migration’. The loss of the commitment to ‘responsible’ migration is not without significance, as explained below. The relationship of human rights and migration is a contested one. While all the UN human rights treaties are designed to protect the specific rights set out in each for ‘everyone’, State practice is rather divergent. Although very few human rights are reserved only for citizens – those concerning political participation – States frequently provide different levels of protection to citizens and migrants. Among the key human rights which migrants often need to rely on – and to which they are entitled, as part of ‘everyone’ – are the right to liberty, the right to protection of their private and family life, and protection against expulsion (ICCPR, articles 9, 17, and 13, respectively). However, none of these is specifically referred to in the Migration Compact; only vague references are made. These rights are frequently applied to migrants differently from citizens. For instance, as regards liberty, citizens entering their own country are not (normally) subject to immigration detention; they can be detained only in accordance with the criminal justice system or exceptionally on public health grounds. Only migrants (non-citizens) are detained in what are often arbitrary conditions and for indefinite periods, supposedly justified by States’ sovereign claims to border control and expulsion. The privacy of citizens is frequently better protected than that of migrants, who are required to provide sensitive personal data (such as fingerprints at borders) with no indication of how this data will be used or shared. On visa applications, migrants must provide extensive personal data about their families, income, and so on. As regards family life, it is very common for States to have different rules for marriage and family life where both parties to the marriage are citizens, compared to where one or both are migrants. Since citizens cannot be expelled from their country of nationality, there is no need to protect them by procedures on expulsion. These only apply to migrants. States’ justification for differential treatment between citizens and foreigners (migrants) is always that the prohibition on discrimination contained in all human rights treaties, such as in article 26 of the ICCPR,1 does not expressly prevent it, although this interpretation has been challenged before the UN human rights bodies.2 Article 1(2) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) specifically excludes differential treatment on the basis of citizenship in providing that the treaty ‘shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party … between citizens and non-citizens’. General Recommendation XXX of the CERD Committee deals with discrimination against non-citizens. It reiterates that human rights are, in principle, to be enjoyed by all persons. However, it focuses on those areas where discrimination is the most egregious for migrants. It calls on States to avoid discrimination between different classes of non-citizens and, importantly, against any particular nationality. It establishes that differential treatment based on citizenship or immigration status will constitute discrimination where it does not pursue a legitimate aim or is not proportionate to achieve that aim. The Migration Compact is based on 10 cross-cutting and interdependent guiding principles, including human rights, in respect of which it provides: The Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination. By implementing the Global Compact, we ensure effective respect, protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle. We also reaffirm the commitment to eliminate all forms of discrimination, including racism, xenophobia and intolerance against migrants and their families. This is not the only reference in the Migration Compact to the elimination of discrimination; it arises on numerous occasions in the text. But what does it mean in light of State practices which ignore the principle of non-discrimination between citizens and migrants? There are a number of answers to this question. First, safe, orderly and regular migration must also be ‘responsible’. This means bringing back into the Migration Compact Goal 10.7 of the Agenda for Sustainable Development. ‘Safety’ must include the safe delivery of human rights, including those contained in the ICCPR (and elsewhere). The notion of ‘orderly’ excludes actions that are arbitrary – which are, by nature, disorderly (such as detention of migrants). It engages the principle of the rule of law. ‘Regular’ migration similarly excludes arbitrary State action contrary to, or in the absence of, rules on the entry and residence of migrants. By re-introducing the concept of ‘responsibility’, States would be obliged to temper their claims to State sovereignty in pursuit of border control objectives. States’ actions must be responsible not only in respect of other States and people, but also in respect of their international human rights commitments. States only act responsibly where they act in a manner consistent with human rights law. This includes non-discrimination between citizens and migrants. As the CERD Committee insists, the starting place is ensuring that any difference in treatment between citizens and migrants has legitimate aim and is proportionate to achieving that aim. Discrimination between groups or categories of migrants is also inimical to ICERD. At the very least, the requirements of legitimate aim and proportionality must apply. This responsibility evidences the fact that one country’s migrant is another country’s citizen, whose human rights deserve to be protected wherever he or she goes since they transcend State borders. The limits of discrimination in States’ border and migration practices are currently before the International Court of Justice (ICJ) in a case brought by Qatar against the United Arab Emirates (UAE), concerning ICERD. Qatar has challenged the UAE’s decision to expel all Qatari nationals from its territory based on discrimination contrary to ICERD, in that only Qatari nationals are subject to the collective expulsion measure. In a decision on provisional measures to protect Qatari nationals living in the UAE, the ICJ granted relief, ordering both parties to refrain from taking action which could aggravate the dispute (including expelling Qatari nationals). The full hearing will revisit the correct interpretation of article 1(2) of ICERD. The Migration Compact provides a new undertaking by States to uphold the human rights of migrants. However, this needs to be strengthened by an enhanced commitment to eliminating discrimination between citizens and migrants, and between different categories of migrants. In doing so, the ICJ may assist States with a comprehensive interpretation of ICERD in the context of migration measures.
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