Under international law, migrants have rights by virtue of their humanity. International human rights instruments, or treaties and documents such as declarations, are of general application and therefore apply to migrants. There are also a number of international instruments that specifically intend to address the protection of migrants. In addition, recent attention has been drawn to the obligations of states, under international human rights law, towards dead and missing migrants (Grant, 2016).
Migrant rights may be evaluated by measuring the rights granted to migrants in principle or in practice. The former is relatively straightforward and looks at international and regional treaty ratifications and countries’ legal documents to protect migrants, while the latter requires looking at implementation of rights, or if migrants’ rights are actually upheld and exercised. Measuring the rights granted to migrants in practice is limited by a lack of data, information, resources, and the large number of rights relevant to migrants.
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Migrant rights are the rights of migrants that are implicitly or explicitly expressed in international human rights (see List 1 below) and public law instruments (see List 2 below). Measuring the rights of migrants exclusively through a human rights-based approach—an approach that only considers international human rights instruments—does not encompass the full range of migrant rights. On the other hand, a rights-based approach acknowledges that the rights of migrants are granted mainly by human rights law, and also through treaties from other branches of international public law, including but not limited to:
• Refugee law;
• Transnational criminal law, especially treaties relating to human trafficking and smuggling;
• Humanitarian law; and
• Labour law.
Although migrant rights derive from customary law (meaning it is a widely accepted State practice), this thematic page focuses on treaty law.
|List 1: International human rights treaties and their associated additional protocols that grant rights to migrants by virtue of migrants’ humanity:|
|1948||Universal Declaration of Human Rights|
|1963||International Convention on the Elimination of All Forms of Racial Discrimination|
|1966||International Covenant on Economic, Social and Cultural Rights|
|1966||International Covenant on Civil and Political Rights|
|1979||Convention on the Elimination of All Forms of Discrimination against Women|
|1984||Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment|
|1989||Convention on the Rights of the Child|
|2006||Convention on the Rights of Persons with Disabilities|
|2007||International Convention for the Protection of All Persons from Enforced Disappearance|
While it is difficult to identify ‘trends’ in the rights granted in principle to migrants, the lists above highlight the timeline for ratifications of international treaties relating to migrants’ rights. Most treaties were ratified before 2000. The most recent treaty, the 2011 Convention Concerning Decent Work for Domestic Workers, has been ratified by 24 States thus far. Several other international legal instruments that provide rights to migrants have seen a significant number of ratifications within the past five years. Most notable is the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, that supplements the United Nations Convention against Transnational Organized Crime, which has been ratified by 19 States since 2012. In addition, the 1961 Convention on the Reduction of Statelessness has been ratified by 14 States in the last five years.
Although it is currently difficult to measure migrants’ rights in practice, the inclusion of migration-related issues in the Sustainable Development Goals (SDGs) and the call for a Global Compact for Migration may lead to a better means of measuring State compliance with international legal obligations.
There are several standards or guidelines that have been published for developing data on migrant rights. These include:
• The UN Recommendations on Statistics of International Migration (1998)
• The UN Principles and Recommendations for Population and Housing Censuses (2008)
• European Parliament Regulation on Community Statistics on Migration and International Protection (2007)
• General comments and recommendations adopted by treaty bodies relevant to migrant rights.
There are also various data sources that measure migrants’ rights in principle. These data sources measure the ratification of treaties, bi- and multilateral agreements and domestic laws, and are listed below.
|Global||UN Office of the High Commissioner for Human Rights (OHCHR)
UN Treaty Collection
International Labour Organization (ILO)
|Europe||Council of Europe|
|Americas||Organization of American States|
For the purpose of this portal, migrant rights in principle are measured through data on treaty ratification.
In addition, there are various data sources that measure migrant rights in practice. In contrast to data sources that measure migrant rights in principle—which ignore the actual implementation of international, regional and domestic laws—data sources that measure migrant rights in practice provide frameworks that establish qualitative and quantitative rights indicators to measure the implementation of migrant rights. Several such frameworks exist:
- KNOMAD provides a framework of indicators on migrant rights, in particular, the rights to non-discrimination, education, health, and decent work (Hernandez, 2017). The framework is based on the indicators model developed by OHCHR. (See below). There are case studies for Argentina, Tunisia and Mexico.
- The OHCHR framework sets out general human rights indicators that serve as a model for many other rights indicator frameworks, though it does not specifically address migrant rights.
- The Organization of American States provides a framework of indicators for economic, social and cultural rights within the Americas.
- The ILO has developed statistical and legal framework indicators for ‘decent work’, which may be of use when assessing the rights of migrant workers.
While these frameworks establish indicators that may be used to measure migrant rights in practice, they generally do not determine which types of data may be used. When measuring migrant rights in practice, four types of data may be used, as follows.
Types of data for measuring migrant rights in practice:
|Type of data||Description||Examples|
|Events-based data||Tracks specific violations of migrant rights by State and non-State actors. Counting such events and violations involves identifying the various acts of commission and omission that constitute or lead to human rights violations. Data may include press releases and reports from the media, government and NGOs.||OHCHR press releases on migrant and refugee rights|
|Data based on expert judgements||Data are based on assessments of a human rights situation with the help of a limited number of informed experts, who evaluate and score the performance of States. They are usually in the form of reports from advocacy groups and academic researchers.||
Human Rights Watch reports on refugees and migrants
States Parties reports to the Committee on Migrant Workers
United States (US) State Department Trafficking in Persons Reports
|Survey-based data||Data uses samples of country populations to ask standardized questions on the perception and/or experience of migrant rights protections. These may be used to create socioeconomic or opinion-based indicators.||
North Africa Mixed Migration Hub’s Survey Snapshots
|Official statistics||Data collected by official agencies at national and subnational level based on standardized definitions and methodologies. Although such data are not explicitly aimed at measuring migrant rights in practice, they may nonetheless include relevant information. These may include administrative data, statistical surveys on certain segments of the population or census data.||US Border Patrol southwest border deaths data|
Data strengths & limitations
Data sources that measure migrant rights in principle allow for an assessment of a country’s commitment to migrant rights and for a comparison of commitments to the protection of migrant rights across countries. However, these sources do not measure a State’s actual implementation of the protection of migrant rights.
Data sources that measure migrant rights in practice more accurately measure how well a country upholds its international obligations with respect to migrant rights, but it is much less likely to be comparable across countries, and summary data may lack important contextual information on the situation of migrants in a given State. It should also be considered that the production of statistical data that involves gathering and disseminating data about migrants, especially irregular migrants, has implications with respect to the right to privacy, data protection, and confidentiality.
The four types of data that measure migrant rights in practice and discussed above also have their own strengths and limitations. These strengths and limitations are not unique to measuring migrants’ rights but rather issues related to the type of data source, and are as follows:
|Type of data source||Strengths||Limitations|
Explicitly linked to specific incidents that demonstrate compliance or non-compliance with human rights standards
Generally include contextual information important to understanding the situation of migrants in a given country
May not give a complete picture of migrant rights in the place where the event occurred
Data are generally not comparable across States
The accuracy and quality of the data may depend on who produced the report.
|Data based on expert judgments||May be collected quickly, and are therefore useful in presenting a first assessment of a situation||Similar to events-based data, data based on expert judgments often lack reliability and comparability across countries.|
Track individual-level experiences of rights violations
Often include contextual information important to understanding the rights of migrants.
As with other subjective types of data, survey data may not always produce a reliable indication of migrant rights
If the composition of a migrant community is not known, sample limitations will not be representative of the larger population.
|Official statistics||Can be an accurate, cost-effective means of measuring migrant rights in practice.||
In States or regions with fewer resources, such data may not be accurate or reliable
Many countries do not disaggregate data in terms of migration or residence status
Even where disaggregated data is available, differences in definitions of what constitutes a ‘migrant’ make cross-national comparison difficult.
|2017||Chapter 14: Human Rights of Migrants. In: Handbook for Improving the Production and Use of Migration Data for Development. Global Knowledge Partnership for Migration and Development (KNOWMAD), World Bank, Washington, D.C.|
|International Organization of Migration (IOM)|
|2015||Rights-based approach to programming. IOM, Geneva.|
|Office of the High Commissioner for Human Rights (OHCHR)|
|2012||Human Rights Indicators: A Guide to Measurement and Implementation. OHCHR, Geneva.|
|Ceriani Cernadas, P., M. LeVoy and L. Keith|
|2015||Human Rights Indicators for Migrants and their Families. KNOMAD Working Paper 5, KNOMAD, Washington D.C.|
|2015||Human Rights Indicators for Migrants and their Families: Overview. KNOMAD, Washington, D.C.|
|United Nations Development Programme, UNDP|
|2006||Indicators for Human Rights-based Approaches to Development in UNDP Programming: A Users Guide. UNDP, New York.|
|Córdova Alcaraz, R.|
|2017||Human Rights Indicators for Migrants in Mexico: National Consultation Report. KNOMAD Working Paper 23, KNOMAD, Washington D.C.|
|2017||Indicators for Human Rights of Migrants and their Families in Tunisia. KNOMAD Working Paper 24, KNOMAD, Washington D.C.|
|International Labour Office|
|2010||Manual on Decent Work Indicators. Guidelines for Producers and Users of Statistical and Legal Framework Indicators. International Labour Organization, Geneva.|
|International Labour Office|
|2010||International Labour Migration: A Rights-based Approach. International Labour Organization, Geneva.|
|Organization of American States (OAS)|
|2015||Progress Indicators for Measuring Rights under the Protocol of San Salvador. OAS, Washington D.C.|