Committee on Migrant Workers Discusses Draft General Comment on Convergence of Convention and Global Compact for Safe

OHCHR

The Committee on Migrant Workers today held a half-day of general discussion on its draft General Comment No. 6 on the convergence of the Convention and the Global Compact for Migration.

Edgar Corzo Sosa, Committee Chair, in opening remarks, said the development of General Comment No. 6 could complement the Convention on many topics, such as the reduction of irregular migration and the eradication of trafficking in persons in the context of migration and smuggling of migrants.

Ibrahim Salama, Chief of the Human Rights Treaties Branch at the Office of the High Commissioner for Human Rights, said the Convention (the only global legally binding instrument on migration) and the Compact for Migration (a non-binding instrument) were the most important international instruments in the context of migration.

Speaking as panellists were Carolina Hernandez, Migration Unit Coordinator at the Office of the High Commissioner for Human Rights; Felipe Gonzales Morales, Special Rapporteur on the Human Rights of Migrants; Mohammed Charef, Chair of the Committee on Migrant Workers’ Working Group on the Convention and the Global Compact; Riadh Ben Khalifa of the University of Tunis; Jonathan Prentice, Head of the Secretariat of the United Nations Network on Migration; Francisca Mendez Escobar, Permanent Representative of the Republic of Mexico to the United Nations Office at Geneva; Alan Desmond of the Journal of Immigration, Asylum and Nationality Law, University of Leicester; Younous Arbaoui of the Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam; Michael Flynn of the Global Detention Project; Rima Kalush of Migrant-Rights.org; Michele Le Voy of the Platform for Internal Cooperation on Undocumented Migrants; Laurel Townhead of the Quaker United Nations Office; Nadia Afrin of the Global Alliance Against Traffic in Women; Vassily Yuzhanin, Head of the International Migration Law Unit at the International Organization for Migration; and Patrick Taran of Global Migration Policy Associates.

In the ensuing discussion, speakers observed that the General Comment would contribute to strengthening the protection of the human rights of all migrants worldwide by providing States with authoritative guidance on the implementation of their obligations under the Convention and their commitments under the Compact.

The Committee was encouraged to include explicitly in its work a robust disability rights perspective based on the standards of the Convention on the Rights of Persons with Disabilities. The Committee was also called upon to clarify States’ obligations to prevent the pushback of migrants.

Burkina Faso and Azerbaijan took the floor in the discussion, as did the International Disability Alliance and Border Violence Monitoring Network.

All documents relating to the Committee’s work, including reports submitted by States parties, are available on the session webpage. The webcast of the Committee’s public meetings can be accessed at https://webtv.un.org/.

The Committee will next meet in public on Friday, 30 September at 5:30 p.m. to formally close its thirty-fifth session.

Opening Remarks

EDGAR CORZO SOSA, Committee Chair, noted that in 2018, United Nations Member States had committed to saving lives and establishing coordinated international efforts on migrants by adopting the Global Compact for Safe, Orderly and Regular Migration. The development of General Comment No. 6 could complement the Convention on many topics, such as the reduction of irregular migration and the eradication of trafficking in persons in the context of migration and smuggling of migrants. Emphasising that access to justice was a fundamental right and a precondition for the enjoyment of all other rights, Mr. Sosa stated that migrants needed to have total and complete access to the legal system where they resided, regardless of their legal status.

IBRAHIM SALAMA, Chief of the Human Rights Treaties Branch at the Office of the High Commissioner for Human Rights, said the Global Compact for Migration laid the foundations for Member States to develop a strategy that protected all migrants in situations of particular vulnerability. The Convention not only provided a comprehensive international legal framework for the promotion of the human rights of migrant workers and members of their families but also remained the best strategy to prevent abuses and address the vulnerabilities that many migrants faced. The Convention (the only global legally binding instrument on migration) and the Compact for Migration (a non-binding instrument) were the most important international instruments in the context of migration. States and other stakeholders should enhance their cooperation to address the critical issue of enforced disappearances in the context of international migration.

Panel Statements

CAROLINA HERNANDEZ, Migration Unit Coordinator at the Office of the High Commissioner for Human Rights, said the Compact explicitly reinforced the importance of human rights and international law. At the same time, the human rights system could reinforce the importance of the Compact. The Compact was dependent on international law to be a complete document, as it was a comprehensive framework for migration governance, yet it relied on the human rights system to provide its authoritative guidance on how States were to implement their commitments in accordance with international human rights obligations.

FELIPE GONZALES MORALES, Special Rapporteur on the Human Rights of Migrants, noted that the Convention was legally binding whereas the Compact was not, yet it was based on human rights treaties, including the Convention. While the Convention focused on human rights, the Compact had a wider scope. The Convention was constructed as a typical bill of rights whereas the Compact had a menu of standard policies. It was important to emphasise the human rights component of the Compact; it was not a human rights instrument as such but it should be possible to develop the provisions related to human rights as much as possible.

MOHAMMED CHAREF, Chair of the Committee on Migrant Workers’ Working Group on the Convention and the Global Compact, pointed out that migration was a matter of great debate in all countries as hate speech, discrimination, xenophobia, and intolerance were witnessed. He highlighted the importance of South-South migration, as much migration was happening within the African continent. Acknowledging the efforts of States towards Ukrainian refugees, Mr. Charef stated that hospitality was indeed possible. Yet it was lamentable that no other migration movement during a crisis had generated such treatment, he said, calling for equality in the treatment of all migrants. The objective of the Compact now needed to be turned into reality, and more States needed to ratify the Convention.

RIADH BEN KHALIFA, University of Tunis, said that for some countries, migration was an opportunity since it brought exchange, trade, and remittances. Citizens of third countries who migrated through the country should not be returned to Tunisia and the European Union should be encouraged to seek other policies. The problem lay not in migration itself but in xenophobia and racism. There was a need to consolidate the Compact, as well as to widen the ratification and implementation of the Convention. It was an essential step that Tunisia had signed the Global Compact, but it should also sign the Convention. Decision-makers should listen to civil society as democracy and the rights of migrants went hand in hand.

JONATHAN PRENTICE, Head of the Secretariat of the United Nations Network on Migration, recalled that the Compact was more than a policy instrument; it also contained 10 guiding principles and directions for how to follow up and review them. The Compact recognised that addressing one priority was beyond the scope of any one actor and required the expertise of a broad range of partners. One hundred and fifty States had adopted the Compact in a depoliticised way where partners discussed issues of migration governance. It had been a success in its outcome as it was obtained through consensus. What was now needed was to turn to the regional review of the Compact in the first half of 2024.

FRANCISCA MENDEZ ESCOBAR, Permanent Representative of the Republic of Mexico to the United Nations Office at Geneva, shared the perspective of Mexico in the use of the Convention in synergy with the Compact. She highlighted the different legal natures of both documents as well as the difference in the contexts in which they were both adopted.

ALAN DESMOND, Journal of Immigration, Asylum and Nationality Law, University of Leicester, said it was no doubt the soft-law nature of the Compact that explained its popularity with States. The implementation of the Compact should be conducted in a manner that was compatible with the standards set out in the Convention. The Committee needed to be alert to any attempts by States parties to employ implementation of the Compact as a means of lowering the Convention standards. Regularisation was an important tool for securing protection of migrants’ rights. It was a process whereby irregular or unlawfully present migrants were granted legal status by the host country. The ultimate goal of the Compact was to bring about migration that was safe, orderly and regular, and that could not be achieved without recourse to regularisation.

YOUNOUS ARBAOUI, Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam, said the interaction of the Convention and the Compact could lead to the promotion of the Convention if Member States used the Compact as a catalyst for the Convention, but it could also undermine the Convention if it was used selectively to legitimise States’ restrictive policies. The General Comment could bring synergy at international, national and regional levels. The Committee could invite States parties that were champions with the Compact but which had not ratified the Convention to participate in the Committee’s work. The Committee could also increase cooperation with universities where the training of future jurists and diplomats started.

MICHAEL FLYNN, Global Detention Project, commented on alternatives to the detention of migrants, using the example of the United States, an outlier on that issue. Alternatives to detention programmes were framed in the United States as tools to manage detention that allowed supervision of those who were not detained. Alternatives to detention were supposed to be community-based measures which were less restrictive than detention, when detention was not required and it had no legal basis.

RIMA KALUSH, Migrant-Rights.org, said migrants constituted over half the population in Gulf Cooperation Council countries, yet those countries often claimed to have no migrants, only so-called temporary contract laborers. That term was deployed to bypass obligations to migrants under international law. None of those countries had ratified the Convention but were signatories to the Compact. The Compact needed to be reinforced by a stronger review process that included more meaningful participation from stakeholders including civil society. Integrating Compact reviews into the Universal Periodic Review and treaty body reviews would ensure that deliberation on migration issues remained within the United Nations framework.

MICHELE LE VOY, Platform for Internal Cooperation on Undocumented Migrants, said migrants, regardless of their status, should have access to health care. Labour inspectors often felt stuck as they saw undocumented workers being exploited, but did not know how to address it. Migrants should have access to holistic services. On the subject of regularisation, 60 different national protection measures existed in the European Union. The Compact and the Convention should be implemented through two key stakeholders: civil society and city level authorities which should be consulted and involved more.

LAUREL TOWNHEAD, Quaker United Nations Office, highlighted that the Compact had much stronger language than the Convention and that the directions for the States in the Compact were clearer than those of the Convention, yet the language of the Compact went beyond the Convention. The Convention had stronger follow-up and accountability mechanisms, but the Compact offered a greater scale and reach. Neither the Convention nor the Compact mentioned the COVID-19 pandemic but for obvious reasons they engaged in the consequences for migrants and offered the possibility to collaborate and reinforce work to prepare for future health crises.

NADIA AFRIN, Global Alliance Against Traffic in Women, said returnee migrant women faced stigma, rejection, and discrimination. The General Comment should push for mainstreaming the anti-discrimination language contained in both the Convention and the Global Compact and make it more meaningful by applying an anti-discrimination lens to the implementation of their provisions. Apart from underlining the importance of human rights in general and decent work in particular, the general comment needed to make a specific effort to address gender-based discrimination and structural inequalities including in the area of socio-economic inclusion.

VASSILY YUZHANIN, Head of the International Migration Law Unit at the International Organization for Migration, said the General Comment’s convergence with the Convention and the Global Compact was a needed step in connecting the two instruments. The Compact contained a lot of practical measures linked to the Convention; whenever the Compact objectives were implemented, Convention objectives were implemented too. Regular pathways to migration were linked to employment, therefore they made an important contribution to combatting trafficking and transnational crime. The Compact and the Convention strived for policy coherence and convergence was a positive development that held the potential to advance both agendas.

PATRICK TARAN, Global Migration Policy Associates, said the protection of the rights of all migrants could not be realised or enforced without recognition in national law and practice by ratification of the instruments protecting them and domestication of their provisions in national legislation. Counting additional signatories of the Convention, countries worldwide were legally committed to upholding binding legal standards governing migration and protecting rights of migrants. The nature of the Compact diminished the participation in formal governance by the legislative branch of government, and dismissed the review and supervisory role of the judiciary.

Discussion

In the ensuing discussion, speakers applauded the potential for the General Comment to strengthen the protection of the human rights of all migrants and to provide authoritative guidance to States in implementing their commitments as contained in the Global Compact and the Convention.

Although the Convention and the Compact did not have the same legal standing at the international level, the two instruments were complementary and mutually reinforcing, particularly in the context of the human rights-based approach to international migration, speakers observed.

The General Comment would contribute to strengthening the protection of the human rights of all migrants worldwide by providing States with authoritative guidance on the implementation of their obligations under the Convention and their commitments under the Compact.

In order to enable States parties to build back better after the COVID-19 pandemic, the Committee was encouraged to highlight the protection of the rights of migrant workers in emergency situations. Further speakers agreed that it was important to fill the human rights and legal gaps through a concomitant interpretation of the Convention and the Compact, developing guidance and promoting Convention’s standards not only to States parties of the Convention, but also to those which had only adopted the Global Compact.

The Committee was encouraged to include explicitly in its work a robust disability rights perspective based on the standards of the Convention on the Rights of Persons with Disabilities, which was very much needed to ensure the rights of migrants with disabilities and their family members with disabilities.

The Committee was also called upon to clarify States’ obligations to prevent the pushback of migrants. Abusive and punitive use of arbitrary and incommunicado detention was a hallmark characteristic of pushbacks, and should be explicitly referenced within the General Comment.

Concluding Remarks

AZAD TAGHI-ZADA, Committee Vice-Chair, referring to the Mr. Taran’s statement on how the Convention could be promoted as a human rights instrument, commended his innovative approach and innovative point of view.

EDGAR CORZO SOSA, Committee Chair, thanked all the panellists and the audience for their enlightened contributions.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2022/09/committee-migrant-workers-discusses-draft-general-comment

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