Blog post written by Kathryn Allinson, a Refugee Law Initiative Research Affiliate undertaking a PhD in Law at 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. 

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International Covenant on Civil and Political Rights, Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Introduction

 

The overall purpose of objective 17 is the eradication of all forms of discrimination against migrants. The general principles of equality and non-discrimination are fundamental elements of international human rights law and must underpin any commitment to improving global migration. Discrimination is the basis of migrant vulnerability because it undermines their access to human rights protection and pushes them into a position of invisibility. Refusals of admission or removal based upon status are inherently discriminatory; such decisions are based on the ‘otherness’ of the migrant. It is this conditionality that makes the migrant vulnerable and it is this vulnerability that leads them to accept limitations on their wider gamut of rights (see Guild, Grant and Groenendijk, 2017).  States justify this denial of rights by differentiating between migrants and citizens, where no such difference is permitted under international law as outlined in Article 2 of ICCPR, Article 2 CEDAW, Article 2 ICERD and HRC Gen Comm No 15 (1986) on the Conditions of Aliens.

 

Objective 17 is two-fold. Firstly, it focuses on eliminating discriminatory practises however they may manifest themselves. It highlights the essential role that conformity with international human rights law plays in eradicating discrimination. Secondly, the objective commits to improving public discourse surrounding migration in order to promote a ‘more realistic, humane and constructive perception’ of migration. In aiming to improve public perception of migration, the GCM seeks to stem the underlying source of racism and discrimination.

 

The first part of this objective and its corresponding actions speak more directly to the State’s role in overcoming discrimination by penalizing hate crime (para a), ending racial profiling (para d) and providing access to complaint and redress mechanisms (para e).  This requires the State to ensure a system exists wherein people who perpetrate hate crimes are held accountable, where migrants can access accountability mechanisms and they aren’t systematically discriminated against through racial profiling. However, in addition to these operational aspects, under international law States must also fully protect the human rights of migrants regardless of their status and without discrimination. This central and fundamental aspect of eliminating discrimination is absent from Objective 17.

 

By contrast the second part of the objective to promote a positive public discourse around migration speaks more to the role to be played by migrants (para b), the media (para c), communities (para f) and community leaders (para g). These aspects of eliminating discrimination fall to the local and individual level guided, but not necessarily actioned, by States. In para b migrants are to be empowered to ‘denounce acts of incitement to violence’. In para c the media, having been ‘sensitized and educated’ will ‘promote independent, objective and quality reporting.’ In para f communities will have awareness raising campaigns to inform them of the positive contributions of migration. Finally, in para g, migrants, political, religious and community leaders will detect and prevent incidences of discrimination. It should be noted that the promotion of a public discourse around migration is not to be conducted at the expense of freedom of expression (para 33).

 

Evolution of Objective 17

 

The core elements of Objective 17 remained fairly constant throughout the drafting process. However, some linguistic changes were made at key points either strengthening or weakening the protection provided and some additions were made. In particular, there was a substantial scaling back of some of the language and provisions in Revision 2; however, within Revision 3 much of this ‘damage’ was undone or lessened. There were no changes made to the text between Revision 3 and Revision 4 suggesting that States where in agreement on the text of Article 17 at that point. The key changes will be briefly explored.

 

The Chapeau in para 33 elaborates on the objective with a number of specific commitments for States. Revision 1 saw the inclusion of ‘violence’ as a listed act of ‘discrimination’ elaborating on the ways in which racism can manifest itself. Revision 2 expanded target groups re discrimination to: race, ethnicity, nationality, gender, religion, or belief. However, it also included the caveat that this objective is in line with freedom of expression. This ensures that the obligation of non-discrimination does not undermine the freedom to express oneself, thus protecting the careful interplay between sometime conflicting human rights. However, balance must work both ways and freedom of expression must not descend into racist or xenophobic discourse justified by an individual’s right to share their views.

 

Para 33(a) was largely unchanged throughout the drafting process. Between Revision 1 and 2 the drafts positively included ‘other acts of violence that target migrants, as well as providing medical, legal and psycho-social assistance for victims.’ The broad scope of 33(a) means that its provisions will apply to any manifestation of hate crimes.

 

The only substantial change made to Para 33(b) was seen in Revision 2, which had included a dedicated section on empowering migrants to denounce acts of violence. However, the word ‘punish’ of perpetrators is gone and now accountability of those who ‘actively participate’ in such acts is limited to the ‘commission of hate crimes’ rather than wider violence. This reduction of criminal accountability is worrying, as is the caveat that this be done in accordance with the right to freedom of expression.  Though this right must also be safeguarded, this provision looks to limit protection from racist violence.

 

Para 33(c) focuses on the role of the media in promoting a positive public discourse on migration. We have seen a switchback regarding the use of public funding of racist media outlets. In Revision 1 ‘restricting’ was changed to the much weaker ‘discouraging’ at what would appear to be the result of pressure from the private sector, which is disappointing, given that the aim of this objective is to reduce racism and discrimination. This became ‘avoiding’ in Revision 2, but thankfully in Revision 3 it was changed to ‘stopping’. This all appears to strengthen very much the commitment to reducing the promotion of negative rhetoric in the media. However, a new final caveat to this is in ‘full respect of freedom of the media.’ While this of utmost importance, it demonstrates a clear compromise amongst State parties and the private sector and media.

 

Para 32(d) in Revision 1 saw the positive inclusion of ‘and all other forms of discrimination’ and ‘effective complaint and redress’ mechanisms being further elaborated, and the methods of discrimination being left wide to include potential ways not elucidated. There was also the loss of ‘migrant’ regarding access to redress mechanisms but this appears to keep the provisions purposefully wide so an organisation or NGO etc may act on behalf of the migrant. However, this could also be interpreted as excluding the migrant from the narrative.

 

In Zero draft plus para 32(e) includes ‘national’ (as well as regional) ‘redress’ mechanisms which highlights the role of the State in ensuring accountability and goes further than mere accountability by highlighting the need to ‘redress’ such discriminatory acts. Revision 2 changes from reducing barriers to ‘provision of access’ in an apparent strengthening of protection and it also highlights the necessity of protecting migrant women.

 

Revision 1 includes a new para 32(f) that focuses on awareness raising campaigns to inform public perceptions based on evidence and facts to challenge negative stigmatization of migrants. This is a positive step and informs how the States intend to change this narrative. However, in Revision 2 this includes a worrying reference to countries of ‘return.’ This implies that at any point a migrant may be subject to voluntary, but also forced, return to their country of origin. As a document intended to promote migration, such a reference could undermine the purpose of the GCM caveating any stay with the threat of removal. By Revision 3 ‘return’ has been removed, however, the positive contributions migrants can make are now limited to those who are ‘safe, orderly and regular’, caveating the types of migration that is positive, and not subject to return. As such, the conditional nature of a migrant’s stay and ability to contribute positivity remains.

 

In Revision 1 para 32(g) sees ‘empower’ changed to ‘engage’, which makes the role of community leaders and others seem passive, but does, however, demonstrate a role for the State. Revision 2 makes specific reference to promoting respect, ‘in the context of electoral campaigns’ which ensures representation of migrants within national, regional and local level governance.

 

The Future

 

It is important to highlight that Principle 6 of the GCM guiding principles is ‘Non-Discrimination’ which ensures that non-discrimination underpins all the objectives and, in theory, the implementation of the GCM. Non-discrimination is also mentioned in objective 13 relating to detention, in objective 15 in relation to access to social services and objective 16(d) to promote inclusion. As a result, the principle runs through the whole GCM as a core tenet of ‘safe, orderly and regular migration.’ The overall focus on eradicating discrimination as central to any migration policy, whilst seemingly obvious, is a very positive step for the GCM. The language of the objective is largely positive and highlights the abhorrence of discrimination whether it be ‘expressions, acts or manifestations of racism, racial discrimination, xenophobia or related intolerance against all migrants’. Encouraging States to ensure they have adequate legal frameworks in place to prevent, punish and remedy such acts is an important step. Taking forward the NY Declaration’s commitment to eradicating xenophobia and racism is essential in promoting a positive dialogue around migration. The attention to the role of the media, especially through honest and fact-based reporting, is important in the current climate of populism and right-wing rhetoric, and acknowledges the huge influence the media has in promoting racist and discriminatory acts. The focus on a local, community-based approach to preventing discrimination is also important as it is at the grass-roots level that real change in perceptions can begin.

 

Despite the fact that the principle of non-discrimination and eliminating discrimination is clearly undisputed in the document, it remains inadequately addressed in Objective 17. Firstly, the objective appears to group together discrimination and racism and, while both are abhorrent and States must act to end their occurrence, they are different concepts and require different solutions. Discrimination is ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin’(Article 1(1) ILO 111); while racism or xenophobia are the belief that characteristics and abilities can be attributed to people simply on the basis of their race or difference from oneself (Kim and Sundstrom, 2014). Racism is the underlying belief that causes discrimination. Much of Article 17 seeks to overcome these underlying issues or hold accountable those who act upon them through violence, however, it fails to address the systematic and endemic discrimination against migrants in the State system and their policies.

 

This leads to the second challenge to implementation: the absence of an acknowledgment that through implementing this objective and abiding by international human rights standards States themselves must end discriminatory practises and policies, especially those that indirectly discriminate against migrants. A clear role for States in that regard remains lacking in the final draft of the GCM. The focus on ‘shaping perceptions in public discourse’ while positive, is only one part of eliminating discrimination. It is worrying that Objective 17 does not highlight the legal principle of non-discrimination, by which States are bound to treat migrants equally to citizens, as the starting point of eliminating discrimination.

 

In order to achieve this objective, States must commit to uphold principles of non-discrimination and implement international legislation where it exists. Of particular relevance to State practise is provisions within ICERD which requires States to ‘condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races,’(Article 2)’. These international standards must be better upheld by States in order to overcome discrimination against migrants. States should use these well-established principles and obligations to guide their own policy.

 

Failing to acknowledge a State’s obligation to abide by the international legal principle of non-discrimination and not implement discriminatory policies against migrants is a sad limitation of an otherwise promising objective. As a result, while Article 17 takes an important step towards eliminating discrimination towards migrants within society, this cannot be done without first a change in the practises of States in ensuring their compliance with international legal standards relating to the principle of non-discrimination. Only then can real change start in public policy and discourse.

 

 

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