Blog post written by Stefanie Grant (Independent Researcher) and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.

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The Global Compact for Migration gives consular authorities an important role in protecting the human rights of their nationals and in acting collectively to protect the wider migrant community. 

The core commitment is found in Objective 14. States have made a double pledge: to strengthen consular protection and assistance to their nationals; and to strengthen consular co-operation between states, ‘to better safeguard the rights and interests of all migrants at all times’ [emphasis added]. The wording is to be welcomed: consular protection and assistance are presented as rights to which all migrants are entitled, and which are to be available to a wider migrant population than states’ own nationals. Instrumental actions include: assisting in the protection of vulnerable nationals; issuing travel and identity documents; helping migrants and families to search for missing relatives, especially unaccompanied children; and advising detainees and prisoners on local laws and customs. 

Consuls are also given an explicit role in realizing other objectives: ensuring migrants have proof of legal identity and documentation [Objective 4]; assisting migrants in detention [Objective 13], and in helping ensure safety and dignity the return process [Objective 21]. Their role is implicit elsewhere: e.g. where migrant workers lose their passports at the hands of exploitative employers. [Objective 6]. 

These are common consular functions, recognized under international law.^[1] At the same time, and in parallel, they are instrumental in protecting migrants’ rights under international human rights law. The state’s right to protect and assist its nationals abroad walks hand in hand with its human rights duties. Thus, when a consulate registers a child’s birth, it is at one and the same time effecting civil registration under national law, and fulfilling the child’s right to be registered under international human rights law.             The importance of protecting and ensuring legal identity, of which documentation is a key element, is now well recognized as  central to sustainable development.

Human rights principles are thus an essential point of departure for measuring states’ actions to implement the Compact.

Four Sets of Indicators

1.        Safeguarding Human Rights

Objective 14 commits states to strengthen consular protection and assistance in order to safeguard the rights and interests of migrants. In parallel, international human rights law gives migrants and their families the right to consular protection and assistance whenever their rights as migrant workers are impaired.^[2]

The first indicators should therefore measure the degree to which consular activities are set within a human rights framework.

It is common practice for governments to issue Consular Instructions which determine the functions of their consulates abroad. Indicators may include:

• Do these Instructions require consuls to act consistently with international human rights law?
• Are consular staff trained in human rights?
• Is discrimination explicitly prohibited? 
• Have states ratified the Convention on Migrant Workers?

2.        Ensuring Legal Identity 

Consuls perform the tasks of national civil registration systems overseas: registering and certifying births, marriages or deaths. In so doing they protect legal identity, and the right to recognition as a person before the law, by providing nationals with documentary proof of their birth, nationality and identity. Birth registration is fundamental to the child’s right to be recognised as a person before the law: issue of a birth certificate protects the child’s right to a name and to acquire a nationality, preserves identity, and prevents statelessness. 

Objective 4 commits states ‘to fulfill the right of all individuals to legal identity by providing all our nationals with proof of nationality’; also to ensure that migrants ‘are issued adequate documentation and civil registry documents such as birth, marriage and death certificates….as a means to empower migrants to effectively exercise their human rights’. Significantly, the second part of this commitment is not restricted to a state’s nationals.

Objective 21 addresses the return of migrants to their countries of nationality; it encourages consular officers to assist in the return process with travel documentation and ‘other services’ in order to ‘ensure’ – inter alia – migrants’‘safety and dignity in return’.  

The second set of indicators should therefore measure the degree to which consuls implement national civil registration systems in ways which are consistent with the Global Compact on Migration.

Indicators may include:

• What steps are taken to inform nationals abroad about their entitlement to register marriage, the birth or a child, or other changes in civil status?
• What steps are taken to increase the ethnic and gender sensitivity of consular staff?
• Are men and women treated equally, and are women issued documentation in their own names?
• In situations of humanitarian disaster or conflict, what steps do consuls take to restore personal documentation that has been lost or destroyed (eg birth, marriage and death certificates, passports, identification and travel documents)? 
• Are consuls instructed to implement UN Sustainable Development Goal 16.9?^[3]

3.        Protecting the Vulnerable 

Objective 7 commits states to assist and protect the human rights of vulnerable migrants, including through upholding the best interests of the child at all times. Objective 14 encourages states to strengthen consular capacities to identify, protect and assist vulnerable migrants, including victims of human and labour rights violations, trafficking and smuggling victims and exploited workers. Objective 8 encourages states to establish co-ordinated international efforts on missing migrants, including through consular co-operation.

Safeguarding the interests of minors is a protected consular function under international law. International human rights law entitles every child to ‘such measures of protection as are required by his status as a minor on the part of …the state’. The CRC further requires that the best interests of the child shall be a primary consideration in all actions by administrative authorities concerning children.^[4]

The third set of indicators should therefore measure the steps taken by consuls to protect the rights of vulnerable migrants, starting with children.

Indicators may include:

• Is information made available that registration of the birth of a child is a right, is necessary to prevent statelessness, and helps to ensure the child’s access other rights such as education or health?
• Are consular officials trained in human rights-based, gender-responsive and child sensitive actions? 
• Are consular officials given training in determining the best interests of the child? 
• In humanitarian crises, are consuls instructed to provide documentation, or replace lost documentation, to survivors, regardless of nationality?^[5]
• In situations of loss, conflict or disaster, are orphaned, unaccompanied and separated children provided with their own personal identity documentation.^[6]
• Are consuls trained in the protection of other vulnerable migrants, including those who have been trafficked?

4.        Protecting Due Process Rights

Objective 13 commits states to follow due process in immigration detention. States are encouraged to ensure that detained migrants enjoy the right to communicate with their consular or diplomatic missions without delay. This right of consular notification is well established in international law; consuls are entitled to assist those in custody through – inter alia – visits, advice, arranging legal representation and ensuring due process.^[7]This is important in overcoming the special obstacles faced by migrants caught in a different criminal justice system, including foreign language and culture, and unfamiliarity with national laws and practices. Consuls help to protect a migrant’s due process rights by providing information and access to independent legal advice.

The fourth set of indicators should therefore measure steps taken by consular authorities to ensure due process rights. 

Indicators may include: 

• Do Consular Instructions refer to international human rights standards protecting detainees and prisoners,^[8]and specifically to due process rights, and to the proscription of torture, cruel, inhuman or degrading treatment or punishment?
• Are consular officials given training in these norms? 
• What action is taken where detainees are not informed about the reasons for their detention, in a language they understand, assisted to communicate with their consular or diplomatic missionswithout delay, and helped to obtain independent legal advice and representation? 

Conclusion

The Global Compact on Migration is a timely reminder of the role of consuls in the protection of migrants’rights. It contains a double commitment: to protect a state’s own nationals, and to act collectively where other states are unable to protect their nationals, including in situations of humanitarian crisis. Identifying indicators to measure how consular authorities honor both these commitments is an essential element of protecting migrants rights and interests. 

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^[1]The 1963 Vienna Convention on Consular Relations gives States the right to protect and assist their nationals abroad.

^[2]UN Convention on the Protection of the Rights of Migrant Workers and Their Families, Art. 23.

^[3]SDG 16.9: legal identity for all, including birth registration.

^[4]VCCR Art. 5(h).  ICCPR A.24. CRC A.3.

^[5]O.7, para 23(j). IASC Operational Guidelines on Human Rights & Natural Disasters, D.1.2, D1.3, D.1.4.

^[6]See e.g. UN Doc. CRC/GC/2005/6, para. 31(4).

^[7]VCCR, Art. 36.

^[8]E.g. UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988.

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