Under international law, migrants have human rights by virtue of their humanity. International customary law and international human rights instruments are of universal application and therefore set States duties and rights of migrants. There are various other international instruments that specifically address the protection of migrants and their rights. In addition, recent attention has been drawn to the obligations of States, under international human rights law, towards dead and missing migrants and their families (Grant, 2016).
Migrants access to rights may be evaluated by measuring the rights granted to migrants in principle and in practice. The former is relatively straightforward and looks at international and regional treaty ratifications by States and their national law to respect, protect and fulfil migrants’ rights, while the latter requires looking at the implementation of rights, or if migrants’ rights are actually upheld and exercised. Measuring the rights granted to migrants and their effective access in practice is limited by a lack of data, information, resources, and the large number of rights requiring evaluation.
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Migrant rights are the rights of migrants that are implicitly or explicitly set by international migration law, including international human rights (see List 1 below) and other 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 set by other instruments. On the other hand, a rights-based approach acknowledges that the rights of migrants are granted not only by human rights law but also by 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 of migrants;
- Humanitarian law;
- Labour law; and
- Law of the Sea.
Although migrant rights derive from international customary law (that is the law resulting from a general and consistent practice of States that they follow from a sense of legal obligation), 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 Rights1
|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|
|1965||International Convention on the Elimination of All Forms of Racial Discrimination|
|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|
|1990||International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families|
|2006||Convention on the Rights of Persons with Disabilities|
|2006||International Convention for the Protection of All Persons from Enforced Disappearance|
Rights of migrants have emerged as part of the human rights international legal framework, codified after WWII in the Universal Declaration of Human Rights and subsequent human rights treaties adopted by States. Indeed, human rights are not only the rights of nationals, but the rights belonging to all individuals who are under the jurisdiction of a State (meaning all individuals that are on the territory of the States or under the effective control of agents of the State). The principle of non-refoulement, (which protects from refoulement all people who are at real risk of irreparable harm for their life, bodily integrity or other serious violations of human rights if they are sent back to their country of origin), has been codified in the Convention on the Status of Refugees and its Protocol, as well as in the Convention against Torture. It has since been considered of being part of international customary law and absolute. That means that this principle of non-refoulement applies at all times when its application criteria are met, and can never be suspended or limited, even in times of crisis or state of emergency. While it is difficult to identify ‘trends’ in the rights granted specifically to migrants in distinct international instruments, 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 Convention Concerning Decent Work for Domestic Workers, which is of utmost importance for many migrant workers, has been adopted in 2011.
Several of the treaties above have seen a significant number of ratifications within the past years and many are widely ratified by States. Notably, since the core human rights are also migrants’ rights, all States have ratified at least one of the core human rights treaties and 80% have ratified 4 or more. See more here for status of ratification of the Human Rights Treaties. To check up-to-date international treaty ratification status, visit this UN page.
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 adoption of the Global Compact for Safe, Orderly and Regular Migration in 2018 may lead to a better means of measuring State compliance with international legal obligations in the context of migration. In addition, the Migration Governance Indictors (MGI), a policy tool that assesses migration governance at the national and local levels, includes migrants’ rights as one of its six domains of migration governance that it measures. The MGI, for example, looks at the extent to which migrants in countries and in cities have the same status as citizens in terms of access to basic social services such as health, education, and social security. See more
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:
The Universal Human Rights Index (UHRI): The UHRI allows you to explore over 170.000 observations and recommendations made by the international human rights protection system (i.e. Treaty Bodies, Universal Periodic Review, and Special Procedures).
International Migration Review Forum: In the Global Compact for Safe, Orderly and Regular Migration, Member States decided that the International Migration Review Forum will serve as the primary intergovernmental global platform to discuss and share progress on the implementation of all aspects of the Global Compact. The International Migration Review Forum shall take place every four years beginning in 2022, and mid-term Regional reviews take place in the lead up to the IMRF.
- 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.
- MGI: Though not focused solely on migrant rights, the MGI profiles include an assessment of how countries and cities govern issues like migrants’ access to basic social services and social security, family reunification, the right to work, long-term residency and path to citizenship, and civil participation. See more
- 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, list of issues, and concluding observations to the Committee on Migrant Workers
States Parties reports, list of issues, and concluding observations to the respective human rights treaty bodies
States Parties reports, 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 respect, protection and fulfillment 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 migrants in an irregular situation, 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.|
- 1The Universal Declaration is not a treaty, thus it does not need ratification nor does it 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 and it is now considered to be international customary law.