Migrant rights

Definition

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. 
 

Data sources

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. 

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:

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: 
 

• 1. The Universal Declaration is not a treaty, thus it does not directly create legal obligations for all members of international community. However, it is an expression of the fundamental values which are shared by all members. Moreover, it has had a profound influence on the development of international human rights law.