Blog post written by Professor Elspeth Guild (Queen Mary University of London), and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration. A French translation of this blog is available on the Plateforme Nationale Protection Migrants (PNPM) website.
Article 17 International Covenant on Civil and Political Rights (ICCPR):
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Article 26 ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Introduction
The New York Declaration which called for the negotiation of two Compacts, one on migrants the other on refugees, stated clearly and unambiguously that the Compacts must reflect and enhance the existing state of international human rights law. This commitment is faithfully carried forward into the final draft of the GCM in the section Unity of Purpose, Paragraph 15: “The Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination…We also reaffirm the commitment to eliminate all forms of discrimination, including racism, xenophobia and intolerance against migrants and their families.”
In this commentary I will examine the content of Objective 1 (Paragraph 17): to collect and utilize accurate and disaggregated data as a basis for evidence-based policy making. I will start by describing the scope and content of the commitment in the final draft of 11 July 2018. In doing so I will highlight the few changes which have been introduced since the previous draft of 28 May 2018. Then I will examine where UN human rights obligations require particular attention in the implementation of the Objective.
The Scope and Content
This commitment is to strengthen the global evidence base on international migration by improving and investing in the collection, analysis and dissemination of accurate, reliable, comparable data, disaggregated by sex, age, migration status and other characteristics relevant in national contexts. The reference to national contexts is a new addition since the draft of 28 May. The commitment is to be realized while upholding the right to privacy under international human rights law and protecting personal data. The express reference to the right to privacy is most welcome. This clearly engages Article 17 ICCPR (above) in all actions to implement the objective. However, it would have also been helpful to include an express reference to Article 26 ICCPR particularly to clarify the scope open to states in the disaggregation of data on the basis of other characteristics relevant in national contexts (emphasis provided). The concern here is that the reference to “national contexts” must never be instrumentalised to purport to justify the collection of sensitive personal data (race, ethnicity, religion etc) about migrants for purposes contrary to Article 26 ICCPR.
There are too many appalling examples in recent history of persecution of ethnic and religious minorities by states which justify their actions on the basis that the minorities are actually migrants who should not be in the country at all (eg Rwanda 1994, successor states of the former Yugoslavia 1994, Myanmar 2017). “National context” in the GCM must never be used to justify the extraction of data for the purpose of collective expulsion.
The Objective commits states to use data collected for research, and to guide evidence-based policy-making and well-informed public discourse. It is also aims to allow effective monitoring and evaluation of the implementation of commitments over time. In order to realize the commitment, the Objective sets out nine actions from which states may draw. These are:
- A comprehensive strategy to improve migration data at local, national, regional and global levels in accordance with the UN Statistical Commission.
- Improve international comparability of migration statistics applying common definitions;
- Build national capacities for data collection, address gaps and assess key migration trends;
- Use data on the effects and benefits of migration and contributions of migrants and diasporas;
- Support collaboration between global and regional databases and depositories;
- Support regional centres of research and training on migration to maximize the value of disaggregated data;
- Improve national data collection by integrating migration related questions in national censuses;
- Conduct household, labour force and other surveys to collect information on the social and economic integration of migrants;
- Enhance collaboration between state bodies responsible for migration data including border records, visas, residence permits, population registries and other relevant sources;
- Develop country specific migration profiles;
- Research the interrelationship between migration and the three dimensions of sustainable development.
All of these actions are capable of aiding the objective of upholding and delivering all the human rights to migrants to which they are entitled. However, a number of them are ambiguous and depending on their implementation, could give rise to the opposite – the violation of migrants’ human rights.
The Future
The dangers which need to be avoided are as follows:
- Engaging all levels of governance, local, national and regional in migration data collection may create or re-enforce migration status as a defining characteristic of individuals in access to goods and services. This may have the effect of diminishing access for migrants to basic services which the GCM commits to ensuring in Objective 15. Allowing migration status to be a defining characteristic of any population may give rise to discrimination inconsistent with Article 26 ICCPR.
- The use of data regarding migrants’ contributions to states is similarly ambiguous. The idea that migrants must justify their presence in their host state on the basis of their contribution to it is problematic. While an argument could be made that it is relevant to the admission (only, not residence and stay once they are already contributing to the society in taxes etc) of migrant workers, this is not the case for other migrants, such as family members, refugees students etc.Depending on how implemented, it may offend against the human right to non-disc rimination in the guarantee of other human rights. All members of a society, whether migrants or citizens (bearing in mind that many migrants will be, in the phrase of Motomura, citizens-in-waiting, people who will probably become citizens sooner or later) are entitled to equality of treatment. Any differences in treatment must be justified on grounds which are consistent with Article 26 ICCPR. The idea that migrants should somehow be better than citizens, more diligent, hardworking, educated etc gives the impression that the entitlement to equality does not apply to them which is wrong in international human rights law.
- Collaboration among databases internationally can be very useful to get a better picture of migration. But it must not be used to get a better picture of migrants as this is contrary to their individual right to privacy (Article 17 ICCPR). One of the more insidious developments among some states is the introduction of interoperability among their national and regional databases with information on migrants. This makes it possible for state officials to search multiple databases around the world not just in respect of a specific individual but on the basis of profiles. Privacy, which includes personal data, is protected in international human rights law. Any state interference is an exception to the right to privacy and must be justified on limited grounds set out in law. The call of the GCM for collaboration among databases needs to be implemented in a manner whereby that collaboration is limited to migration only and excludes data-sharing on individual migrants themselves.
- Including migration related questions in censuses and the conduct of surveys on migrants’ social and economic integration can similarly be a double edged sword. The amount of detailed information which the GMC recommends to be collected in censuses is surprising. Detail about birthplaces of grandparents seems rather remote and it is not clear what objective and justified interest is achieved through the collection of such data. Should such data be used to implement legislation which makes distinctions in immigration status on the basis of the place of origin of grandparents it would be difficult to defend such legislation against challenges on the basis of arbitrary discrimination. Likewise, the definition of social and economic integration is rather ambiguous. As has been seen in a number of European states such as the Netherlands, the concept of social integration of migrants has been used to introduce ever more difficult ‘integration’ tests for migrants even after they acquire permanent residence. The consequences of failing the tests are precarity of residence and work rights and the withdrawal of social benefits. This concept and application of social integration hurts migrants and their families. It can be inconsistent with the human right to dignity.
- Collaboration among state bodies responsible for aspects of migration such as border records, visas etc obviously runs the risk of violating the right to privacy of individual migrants. Implementation must be carefully monitored to ensure that all data is anonymized in a manner where that anonymization cannot be reversed when the data is shared across bodies.
- Migration profiles are not without ambiguity. Some international organizations have developed profiles for countries which seek to indicate whether the citizens of that country “are likely” to migrate (regularly or irregularly). Yet, there are substantial issues about such profiles and their reliability. The effect can be to stigmatize nationals of some countries on the basis of the migration patterns of some of their co-citizens. It is this aspect of the US Travel Bans introduced against selected countries in 2017-18 which has been most contentious in the international community. It is a form of collective punishment of all citizens on the basis of the actions of some of their co-citizens.
- Research on migration and sustainable development is an excellent objective which raises few problems about human rights compliance.
Objective 1 of the GCM has remained fairly stable during the negotiations. Some additions have been made, in particular there is greater emphasis on the protection and championing of human rights. The end result provides real opportunities to improve evidence-based policy-making which is an excellent objective in this field. However, states must take great care in implementation of this Objective that it does not become a justification for the arbitrary interference with the personal data of migrants or prohibited discrimination against individual migrants. Similarly it must not become a tool to identify and persecute people on the basis of their migratory status or background.
All states, but particularly those with a history of persecution of their ethnic minorities (in particular where coupled with stigmatization of those minorities as ‘migrants’), need to monitor the actions of their bodies and agencies with anxious scrutiny to ensure that implementation of the GCM is not abused to justify open season on migrants’ personal data notwithstanding the human rights obligation to protect privacy and to eliminate discrimination.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.