In the UN’s 75-year history, it has played a central role in the development of international human rights law (IHRL). Since the adoption and ratification of the first two UN human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), a number of additional treaties and optional protocols have been adopted. In subject matter, UN human rights treaties address:
The question is: how does any of this have the potential to enhance protection within the field of migration?
Only one of the treaties (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families) (ICRMW) specifically addresses migration in the title. However, this article will demonstrate the potential which exists across all the core human rights treaties, to provide vital protections for refugees, asylum seekers, internally displaced persons, migrant workers, and trafficked persons.
Many of these treaties have created ‘treaty bodies’, which are ‘committees of independent experts that monitor implementation of the core international human rights treaties to monitor and oversee State compliance with the treaty.’ In other words, these bodies are interested in whether States are complying with their obligations. Usually, the treaty body is established by the treaty itself. For example, Article 28 of the ICCPR created the Human Rights Committee, and Article 43 of the UN Convention on the Rights of the Child (UNCRC) established the Committee on the Rights of the Child (CRC). While the weaknesses of IHRL enforcement mechanisms have been well documented, it must be acknowledged that the treaty bodies monitor State implementation of and compliance with their respective treaty obligations in a number of ways. For example, ‘[e]ach of the treaty bodies publishes its interpretation of the provisions of its respective human rights treaty in the form of “general comments” or “general recommendations”’. Even where a treaty obligation is not exclusively focused on the context of migration, a General Comment or Recommendation may provide guidance on how it might apply in that context. For example, in the Committee on Economic, Social and Cultural Rights’ General Comment No. 15 on the Right to Water, the Committee explicitly notes:
‘Whereas the right to water applies to everyone, States parties should give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including women, children, minority groups, indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners and detainees.’
Another way in which treaty bodies can help to oversee State action is through the process of State Reporting, which has been described as ‘one of the oldest monitoring instruments in international law’. Giegling has noted that ‘what makes state reporting somewhat unique compared to other monitoring instruments is its compulsory nature’: human rights treaties typically place an obligation on States periodically to report on their compliance with the various obligations they have undertaken by acceding to the respective treaties. In 2020, a review of the reporting process was undertaken to consider simplifying the reporting process, with the aim of combatting late reporting and non-reporting. The outcome of the review has been criticised for its lack of commitment to action. In the years which follow, it is hoped that any changes to the State Reporting process will only serve to ensure a greater level of accountability.
Finally, treaty bodies can, in certain circumstances, receive individual and inter-state communications. These communications are somewhat similar to court cases, and although Committee decisions do not have the binding force of a Court judgment (such as those of the European Court of Human Rights), the decisions do carry weight and authority and States arguably do have an obligation to act upon the recommendations in good faith. In this way, the treaty bodies act as quasi-judicial decision-making bodies. The competence for the respective treaty bodies to receive these communications and adopt views on the merits usually comes from an additional protocol to the main treaty. For example, a complaint regarding a violation of children’s rights under the UNCRC may only be brought against a State which has acceded to the Optional Protocol (on a communications procedure) to the Convention on the Rights of the Child. Further, these Optional Protocols usually need to reach a minimum number of ratifications before they can enter into force. One treaty, the ICRMW has a slightly different system. States must accept the competence of the Committee on Migrant Workers to receive communications, by making a declaration under Article 77 of the treaty. As of yet, the minimum number of states (10) have not made such a declaration, so the Committee cannot receive any communications. In fact, within the individual complaints which have been brought before the various committees, we see evidence of decisions which uphold and protect rights in the context of migration. The case of Tetiotia v New Zealand, which has been outlined by Chiara Maria Natta in her article on climate change, is one such example. Below, two further decisions will be outlined to illustrate how UN treaty bodies function in practice to uphold the rights of migrants.
V.A. v Switzerland (Committee on the Rights of the Child) (2020)
This communication was brought before the CRC. As noted above, this Committee’s competence to deal with individual communications is relatively new: the Optional Protocol which established such a mechanism was adopted in 2011 and entered into force in 2014. The communication was brought by a an Azerbaijani national, on behalf of her two children. Both children’s parents were journalists, and had fled Azerbaijan in 2017 due to the danger faced by journalists at the time. It was claimed that the ’life of the author’s husband was seriously in danger’. The family arrived in Switzerland and applied for asylum on 20 March 2017. During the process, they claimed to experience a number of adverse effects of the ‘precarious and degrading accommodation conditions and the linguistic isolation’ and eventually decided to choose voluntary repatriation and return to Azerbaijan. Upon return, the family suffered very difficult circumstances, including the arrest of the children’s father and threats from Azerbaijani authorities. V.A. claimed that Switzerland’s failure to consider ‘the vulnerability of E.A. and U.A. when adopting the decision not to consider’ their application and ‘by acting in such a way as to infringe their rights at the time of attempted removal’ Switzerland violated obligations under the UNCRC. Ultimately, the Committee decided that Switzerland had indeed violated Article 3 (best interests of the child) and Article 12 (obligation to consider child’s views) of the CRC. The consequence of such a finding was that Switzerland was ‘under an obligation to reconsider the author’s request to apply article 17 of the Dublin III Regulation in order to process E.A. and U.A.’s asylum application as a matter of urgency, ensuring that the best interests of the children are a primary consideration and that E.A. and U.A. are heard.’ This case shows how the best interests of the child and the child’s views must be to the fore in asylum decisions concerning children. It also demonstrates how the CRC can be used in practice to protect refugee children.
I.A. v Sweden (Committee against Torture) (2019)
This communication was brought before the Committee Against Torture, which has competence to consider complaints brought under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). As to the facts: I.A. fled to Sweden from Chechnya, fearing for his life due to a ‘blood feud’ involving his family. The Swedish authorities decided that his situation did not meet the requirements of the refugee definition under the 1951 Convention Relating to the Status of Refugees (Refugee Convention). Further, the Swedish authorities decided that I.A. would be able to ‘relocate to smaller coastal cities of the Russian Federation’. I.A.’s asylum application was unsuccessful, and he was denied leave to appeal. I.A. complained that his removal to the Russian Federation would constitute a violation of Article 3 UNCAT (the prohibition of refoulement) and that if removed, he would be at a ‘personal risk of being persecuted, tortured and ill-treated upon return’. Ultimately, the Committee decided that such a removal would indeed amount to such a violation and that Sweden had ‘an obligation to refrain from forcibly returning’ I.A. ‘and his two minor children to the Russian Federation or to any other country where there is a real risk of them being expelled or returned to the Russian Federation’. This communication represents another example where a human rights treaty provision has provided protection in practice for an asylum seeker.
The two communications outlined above demonstrate that the treaty bodies established by UN human rights treaties can play an important role in ensuring that the protections of the treaties are upheld in practice. However, it must be acknowledged that there are a number of obstacles which could prevent such a successful outcome. First, a communication may only be brought before a committee, if the State against which the complaint is brought, has ratified the relevant Optional Protocol. For example, if V.A. and her children had been in the United Kingdom or any other country which has not yet ratified the relevant Optional Protocol, she would not have been able to bring her complaint before the Committee. Second, even where a State has ratified the relevant instrument, an individual must satisfy the admissibility criteria. Third, if lawyers and NGOs assisting individuals who have suffered human rights violations do not utilise these mechanisms, then the potential to provide meaningful protection is also weakened.
The UN has made significant steps forward in the protection of human rights. The treaty bodies are central to such protection. Looking forward, what small steps can be taken by individuals to ensure the potential contained within these mechanisms is further maximised.
Check which treaties and optional protocols your home state has acceded to. You can do this easily on OHCHR’s Status of Ratification Interactive Dashboard. Why not write to your elected representative, asking them about plans to ratify additional treaties and protocols?
The Committee on Migrant Workers cannot yet receive individual communications because not enough States have made the necessary declaration under Article 77.
If you work in practice with those whose rights are not being protected, consider if an individual complaint may be an option to achieve protection.
If you are interested in advocating for the rights of refugees, asylum seekers, migrant workers, trafficking victims, or anyone else, take some time to investigate the roles of the various treaty bodies, by visiting their individual webpages. These committees often call for submissions from interested parties when compiling General Comments or recommendations.
Finally, continue the conversation, raising awareness of the various rights and protections owed to so many in the context of migration.