Blog post written by Syd Bolton and Catriona Jarvis (The Last Rights Project) 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.
Universal Declaration of Human Rights, Article 3: Everyone has the right to life, liberty and security of person.
In summary, Objective 8 of the Global Compact for Migration contains three new elements: to save lives and prevent deaths and injury; to identify the missing and the dead; and to provide assistance to their families.
It is worth stating at the outset, that through Objective 8 of this Compact, states have, for the first time, formally recognised that in embarking upon migration journeys, people’s lives are put in jeopardy every day and many go missing, die or are bereaved as a consequence. The Last Rights Project welcomes this ground-breaking development. However, the responsibilities of states in this regard are not new, rather they have long existed and can be found within established international law. For example, Article 6 International Covenant on Civil and Political Rights, the right to life and the duty to investigate; the UN Convention on the Law of the Sea, Article 98, the duty to search and rescue. The Last Rights Project has itself published a statement setting out these international legal obligations of states and the rights of families.
Objective 8 cannot be read in isolation from the rest of the Compact but space does not permit such an analysis here. For the purpose of this commentary we restrict ourselves to the Objective itself and the context in which it is framed, namely the Preamble to the Compact and the underpinning New York Declaration, which offers succinct clarity as to the concerns it seeks to address:
Refugees and migrants in large movements often face a desperate ordeal. Many take great risks, embarking on perilous journeys, which many may not survive…We are determined to save lives. Our challenge is above all moral and humanitarian… (New York Declaration, paras 9 and 10).
The unnecessary pain and suffering of migrants and their families, invariably compounded by inadequate or even antagonistic state practices (e.g. Italian government refusal to allow rescued migrants to disembark) must be prevented and their rights and complex needs must be addressed in a much more cooperative way, both at national and international levels. Death and distress do not distinguish between those embarking by choice on migration journeys and those who are compelled by persecution, conflict or other circumstances, but both frequently occur as a consequence of forced ‘irregular’ migration in the absence of lawful modes of migration. Artificial distinctions and barriers based on the immigration status of missing, deceased and bereaved persons must not be erected when addressing the legal and practical issues of search and rescue, the treatment of missing persons, the management of bodies and all the duties owed to the deceased and their families.
This is a brief Commentary on Objective 8 of the Final Draft of this Compact, set against its initial iteration in the “Zero Draft”. The document as a whole has been through several revisions along the way which may offer some useful illumination as to the intentions of the drafters during their travaux, but comment on our part on such intentions would be little more than conjecture. As a general observation, the progress of the draft of Objective 8 to its final version has been one mostly of minor refinement of language and of clarification rather than major revision but on the whole, makes potentially positive improvements from the perspective of migrants provided, of course, that these commitments are matched by the will of states to provide the necessary resources and to implement them. There are nevertheless missed opportunities and changes made during the drafting process which may yet have a negative impact, which are discussed below. Whilst a detailed analysis of the version by version progress of the drafting is of importance, our focus here, as an NGO, is more immediately on the impact that the final document will have on migrants, their families and the agencies and organisations who will need to use it both as policy guidance and a practical tool for the protection of migrants and their rights.
Objective 8’s stated purpose is “to save lives and establish coordinated international efforts on missing migrants”. The content of the objective itself is actually significantly broader in scope. It includes commitments for states to act both individually and jointly not only to save lives through practical and material measures (e.g. search and rescue operations), but also calls for cooperative measures to prevent migrant deaths and injuries happening in the first place, including prevention of collective expulsion, improved reception conditions, guarantees of due process for individuals and the protection of humanitarian assistance against being deemed unlawful. It also makes the very welcome step towards developing better cooperation and standardisation of information gathering and sharing to assist in the process of identifying missing and deceased migrants and to develop better ways of communicating with families of missing and deceased migrants. So far so good.
However, it is apparent from the final revision that even though the Compact itself will not create any new, legally binding obligations on states (Final Draft, para 7), nevertheless it seems there is still sufficient anxiety that the provisions in the text should not establish too onerous a request to states to implement these positive statements of good intention.
For example, whilst in the Zero Draft the basic requirement was “to save lives” (Zero Draft, para 22). This has been modified so that the Final Draft now reads “To cooperate internationally to save lives…” (Final Draft, para 24). Whilst cooperation internationally is of course laudable and indeed necessary when addressing cross-border issues, the final text language puts that obligation at one remove, arguably distancing the individual states onus to prevent migrant deaths and save lives. At the same time, the final text adds a “collective responsibility to preserve the lives of all migrants”. Given that states already have clear existing international legal obligations, including in respect of search and rescue at sea, such as Article 98 of the UN Convention on the Law of the Sea, it is perhaps a missed opportunity that the Compact does not also re-affirm all existing legal duties.
In the implementation of the objective we see a further dilution in the final draft from the initial wording: “In this regard, the following actions are instrumental” is now changed to: “To realize this commitment, we will draw from the following actions…”. This is regrettable as it would appear not only to demote the actions identified in the text in terms of importance but also to permit a ‘pick and mix’ approach as to which elements of Objective 8 states wish to focus upon, rather than seeing the whole as a minimum prerequisite of good practice.
It is interesting that paragraph 24 (a) of the Final Draft now calls on search and rescue procedures and agreements to “…uphold the prohibition of collective expulsion, guarantee due process and individual assessments…” where previously it simply required procedures “that refrain from pushbacks at land and sea borders…” (Zero Draft, para 22a). Whether legal precision is being sought through making this change, rather than using the more general (and imprecise) term “push-back” is not known to the authors, but the wording is now consistent at least with the European Court of Human Rights Grand Chamber judgment holding a violation of human rights through collective expulsion in the “push-back” case of Hirsi Jamaa and Others v. Italy in 2012 and would appear to strengthen the protections of the individual migrant compared to the initial draft.
Lastly, in Paragraph 24a of the Final Draft, the wording: “ensure that the provision of assistance of an exclusively humanitarian nature for migrants is not considered unlawful” replaces the original version: “ensuring that the provision of humanitarian assistance for migrants is never criminalized” (authors’ underlining). The changes appear both positive and negative, given that it is very unclear where the boundary between humanitarian and non-humanitarian assistance might lie, or indeed what non-humanitarian assistance would be at all, whether in the context of an immediate and urgent rescue operation or a situation which may be less immediately urgent but intrinsically necessary for the safety and well-being of the migrant, but which may be construed by states’ border officials as facilitation of illegal entry (for example the prosecution of civil society humanitarian actors in France, Greece, USA and elsewhere, for provision of food, water, shelter etc). The addition of the word exclusively can only add confusion to the provision. It is however welcome that the Compact now recognises in Objective 8, that it is not solely the criminalisation of humanitarian assistance that undermines the rights of migrants, but that the deliberate and disproportionate use of civil law and legal obstacles, both domestic and supra-national, to render humanitarian assistance unlawful for non-compliance must also be prevented.
Whereas Paragraph 24 (a) to (c) focuses on actions in relation to saving lives and preventing death and injury, Paragraph 24 (d) to (f) of the Final Draft addresses matters concerning deceased and missing migrants and their families. Whilst it is a positive, even ground-breaking, development to see a global initiative like this address such difficult issues for the first time it is to be hoped that this is just the beginning of a much more comprehensive set of ultimately binding obligations such as those proposed by The Last Rights Project (see Mytilini Declaration below). In the meantime, the Compact takes some very welcome steps forward whilst missing an opportunity to go much farther.
The tragedy of any individual death or missing person is compounded by the suffering of the families that are left behind, not knowing what happened, or knowing, but unable to obtain practical assistance and justice, to grieve and lay their loved ones to rest in accordance with their wishes. This is acutely the case when it concerns those who have lost their loved ones in the context of migration where families are often separated not just by loss, but also by fragmentation across multiple borders on their migration journeys, by a lack of legal status, lack of access to support services and to legal aid.
Objective 8 goes a little way to addressing some of these specific needs. Paragraph 24 (d) calls on states to establish “transnational coordination channels” to assist families seeking missing relatives “while respecting the right to privacy and protecting personal data”. Undoubtedly this is a necessary facility not just at a transnational level but a national one, that has to work in a manner which provides families with confidence that their own and their family’s data is not going to be used in any ways beyond that purpose. At present, many families simply do not trust some states not to abuse their personal information and turn it against their families, particularly for immigration enforcement purposes.
Paragraph 24 (e) relates specifically to the creation and maintenance of systems for collecting, holding, sharing and examining forensic data related to the deceased person. It remains regrettable, even if used in some clinical and policing contexts, that the bodies of deceased migrants are still referred to as a “corpses” in this final draft. It is not only inconsistent with the language used elsewhere in Objective 8 but insensitive to bereaved families. Nevertheless, the development of an internationally consistent forensic data collection and sharing standard would be a significant advance toward providing answers to families. Like the cooperation envisaged for the search for missing migrants, whether at sea or on land: in deserts, mountains, rivers and elsewhere, the forensic data needed is similar and requires the trust and confidence of families if any system is to be workable. For many families the risks of sharing data with states, especially country of origin states may be too great. Transnational mechanisms must have rigorous safety and confidentiality standards built in, to prevent such data being misused. Traceability of bodies once laid to rest is a necessary aspect of such systems. Far too many unidentified bodies, once buried are not traceable even through local records. This either delays tracing or renders it impossible for families, denying them their basic human rights. Even when a body is unidentified, it is essential that the burial site and body are documented and systematic, searchable records maintained. A national mechanism in all states should be established that is responsible for the implementation of these standards and that is able to work in co-operation with corresponding mechanisms, regionally and internationally.
Paragraph 24 (f) is an entirely new section since the Zero Draft and calls on states to “Make all efforts, … to recover, identify and repatriate the remains of deceased migrants to their countries of origin, respecting the wishes of grieving families…” This is a positive addition to the Compact and underlines the fact that the duties of states are far more than the clinical, legal, forensic task of identifying bodies, but that bereaved families are entitled to every assistance to help them to lay their relatives to rest in a way and in a place that is appropriate to their wishes, to grieve and to mourn and to pay respects. It may not be possible or even be desired by the family for the deceased to be returned to their country of origin, for example where the deceased was a refugee. Such a requirement in Objective 8, 24 (f) should not be seen as an absolute condition but based on the wishes of the family.
“…in the case of unidentified individuals, facilitate the identification and subsequent recovery of the mortal remains, ensuring that the remains of deceased migrants are treated in a dignified, respectful and proper manner”
This is a sensible addition, but one that should also be read in accordance with the provisions on traceability in the same paragraph to ensure that every opportunity is given for family members to participate in procedures, not least so that in future they may eventually be able to identify their relatives.
Whilst these measures are self-evidently positive, the Objective lacks certain obvious commitments. For example, there is no provision calling on states to enable the movement of bereaved family members across borders to participate in identification, participation at inquests and other coronial procedures, legal proceedings, burial and paying respects. There is no provision for states to establish annual budgets and funding for welfare, psychological and advocacy support for bereaved families, with special provision for children, and nothing exhorting states to make legal aid available for their participation in proceedings related to the death or disappearance of their relatives. A subsequent draft would benefit from such additions.
Migrants do not die by accident but by design. As the Special Rapporteur of the Human Rights Council, Dr Agnes Callamard found in her 2017 report:
“[…] evidence… suggests multiple failures on the part of States to respect and protect refugees’ and migrants’ right to life, such as unlawful killings, including through the excessive use of force and as a result of deterrence policies and practices which increase the risk of death.”
During the period in which the Global Compact has been drafted, The Last Rights Project has been working to develop a new set of proposed international standards. On 11 May 2018 international civil society signed The Mytilini Declaration for the Dignified Treatment of all Missing and Deceased Persons and their Families as a Consequence of Migrant Journeys. On the whole, the provisions within Objective 8 are consistent with the standards set out in the Mytilini Declaration. The Last Rights Project continues its own work to finalise a Protocol to the Declaration including detailed Guidance for all those working with the families of the missing and the deceased, an Explanatory Note and Glossary, to be completed by May 2019. It is hoped that in the implementation of Objective 8 of the Global Compact, states will take into consideration all the principles set out in that Declaration and look to its Protocol for practical guidance.
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.