Dr. Annick Pijnenburg*
This post examines the human rights obligations of sponsor states in the Global North towards people on the move contained in partner states in the Global South as a result of migration deals. The analysis first describes migration deals and their impact on people on the move, before turning to sponsor states’ obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR). This post argues that sponsor states of migration deals can have two types of obligations under the ICESCR: direct obligations that apply when there is a jurisdictional link; and global obligations of international assistance and cooperation. It is based on my recently published PhD thesis to which the reader is referred for a detailed analysis: At the Frontiers of State Responsibility: Socio-economic Rights and Cooperation on Migration.
Migration deals and their impact on the socio-economic rights of people on the move
Since the 1980s, Global North states have tried to prevent people on the move (including both refugees and migrants, see here) from reaching their territory through various measures, such as visa requirements and carrier sanctions. In addition, since the turn of the century, we have witnessed a shift from unilateral to cooperative migration control, as sponsor states in the Global North increasingly cooperate with partner states in the Global South. As a result, the ‘centre of gravity’ of migration control shifts from the Global North to the Global South, with sponsor states taking a back seat: their involvement is often limited to providing information, training, equipment and funding. The result is that people on the move are contained in partner states in the Global South and prevented from reaching the territories of sponsor states in the Global North.
Examples of cooperation between the Global North and the Global South abound. In the Americas, consecutive US administrations have cooperated with Mexico to prevent the arrival of Central American people on the move at the US border. In the Asia Pacific, Australia cooperates with Indonesia to prevent people on the move from travelling to Australia to seek asylum. Those that undertake the dangerous sea crossing are either returned to Indonesia or transferred to regional processing centres in Papua New Guinea and Nauru. In the Mediterranean, the European Union (EU) and its Member States cooperate with neighbouring countries like Morocco, Libya and Turkey, as well as countries further away, such as Niger, to prevent irregular arrivals in the EU.
Consecutive migration deals with Libya illustrate how the ‘centre of gravity’ of migration deals shifts from the Global North to the Global South. Under its 2008 Friendship Treaty with Libya, Italy intercepted migrant boats on the Mediterranean and returned their passengers to Tripoli. However, the European Court of Human Rights (ECtHR) condemned these pushback practices in its 2012 judgment in the case of Hirsi Jamaa and others v Italy. Consequently, under the 2017 Memorandum of Understanding between Italy and Libya, which revives the 2008 Friendship Treaty, the Libyan Coast Guard ‘pulls back’ migrants to Libya, while Italy’s involvement is limited to the provision of funding, equipment and training as well as coordinating the Libyan Coast Guard (see here and here). By shifting its policies Italy arguably seeks to achieve the same result (prevent migrant arrivals) but without incurring any human rights obligations (since migrant boats are now intercepted by the Libyan rather than the Italian authorities).
The negative impact of migration deals on people on the move has received much attention, especially as regards the possibility to seek asylum. Indeed, preventing refugees from reaching the territory of a state that could provide international protection raises questions in terms of the right to asylum, the principle of non-refoulement, and related rights, such as the right to leave a country.
Migration deals also risk causing human rights violations separate from the issue of access to international protection, such as the right to life, for instance as regards migrant drownings at sea. The plight of people on the move in Libya vividly illustrates the detrimental human rights consequences that migration deals can have, as Libya is commonly referred to as ‘hell on earth’.
However, an aspect of migration deals that has received comparatively little attention concerns their impact on the socio-economic rights of people on the move. Yet many people on the move who are contained in partner states in the Global South live in dire circumstances: they lack access to an adequate standard of living, for instance because they live in tents or on the streets. They often only have access to the informal labour market, as a result of which they risk being exploited by their employers. Children cannot always go to school and child labour remains a problem. In turn, these difficult circumstances and the lack of perspectives risk causing or exacerbating both physical and mental health issues, which are further compounded by the fact that people on the move often have only limited access to health care in host countries. For instance, many asylum seekers in Indonesia are left in limbo without access to education, work, health care or accommodation, which in turn leads to severe mental health issues. In Mexico, Central American people on the move likewise struggle to access just and favourable conditions of work, education and health care (see here).
Sponsor states’ direct obligations towards people on the move in partner states
As a rule, human rights treaties apply on a state’s territory: international human rights law assumes that a state exercises sovereignty over and hence has human rights obligations towards persons on its territory. Therefore, partner states like Mexico, Libya and Indonesia have the primary obligation to realise the socio-economic rights of people on the move on their territory. Yet, given the limited ability of these states to ensure an adequate standard of living for their own citizens as well as people on the move, the question arises to what extent sponsor states have an obligation to contribute to realising their socio-economic rights. In other words, can we assume that, by keeping people on the move outside their territory, sponsor states can also evade their obligations towards them? Or can migration deals trigger such obligations?
The starting point of the analysis is Article 2(1) ICESCR:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
Unlike many other human rights treaties, notably those protecting civil and political rights, the ICESCR does not contain a jurisdiction clause. Nevertheless, as all human rights are ‘universal, indivisible and interdependent and interrelated’ (1993 Vienna Declaration and Programme of Action), the ICESCR has been consistently interpreted in terms of jurisdiction. Moreover, it is generally accepted that states can have human rights obligations towards persons outside their territory. Therefore, the key question is: when do states exercise extraterritorial jurisdiction under the ICESCR and hence have direct obligations towards persons abroad?
The Committee on Economic, Social and Cultural Rights (CESCR) determined the scope of states’ extraterritorial obligations as follows:
a State party would be in breach of its obligations under the Covenant where the violation reveals a failure by the State to take reasonable measures that could have prevented the occurrence of the event. The responsibility of the State can be engaged in such circumstances even if other causes have also contributed to the occurrence of the violation, and even if the State had not foreseen that a violation would occur, provided such a violation was reasonably foreseeable. (General Comment 24, para 32 (emphasis added))
In other words, when a state can take reasonable measures to avoid reasonably foreseeable violations of economic, social and cultural rights, it exercises extraterritorial jurisdiction and has a direct obligation to contribute to the realisation of the economic, social and cultural rights of individuals abroad. Although it differs from the ECtHR’s jurisprudence on extraterritorial jurisdiction (see Al-Skeini and others v United Kingdom), the CESCR’s approach finds support in Principles 9 and 13 of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights. It is also in line with recent pronouncements of the Human Rights Committee (see General Comment 36 and A.S., D.I., O.I. and G.D. v Italy) and the Inter-American Court of Human Rights (see Advisory Opinion 23/17).
In the context of migration deals, then, do sponsor states in the Global North exercise jurisdiction over - and hence have human rights obligations towards - people on the move contained in partner states in the Global South as a result of migration deals? That is the case if they can take reasonable measures to avoid reasonably foreseeable human rights violations. More specifically, sponsor states breach their direct obligations under the ICESCR if they fail to take into account the reasonably foreseeable adverse impact of migration deals on the socio-economic rights of people on the move in third countries. Many migration deals focus (almost) exclusively on preventing arrivals and include no or few measures to mitigate their negative impact on the socio-economic rights of people on the move contained in partner states. For instance, in 2018 Australia cut its funding to the International Organisation for Migration (IOM) which provided basic health care, shelter and food to people on the move in Indonesia, resulting in people on the move sleeping on the streets (see here and here). On the other hand, the 2016 EU-Turkey Statement, notwithstanding its problematic aspects, provides for €6 billion European funding to support Turkey in hosting some 4 million, mainly Syrian, refugees. Although many issues remain as regards access to adequate housing, health care, education and the labour market, especially in the context of the COVID-19 pandemic, the EU Facility for Refugees in Turkey has contributed to improving the situation of people on the move in Turkey.
Sponsor states’ global obligations towards people on the move in partner states
While Article 2(1) ICESCR does not refer to ‘territory’ or ‘jurisdiction’, it does require states parties to ‘take steps, individually and through international assistance and co-operation’ in order to progressively realise economic, social and cultural rights. Therefore, limiting states’ obligations under the ICESCR to persons within their jurisdiction fails to account for the element of international assistance and cooperation in the ICESCR. Accordingly, we must recognise that the ICESCR imposes different kinds of obligations that result in distinct dimensions of extraterritorial obligations: in addition to direct obligations that are triggered when they exercise jurisdiction, states parties to the ICESCR arguably also have global obligations of international assistance and cooperation (see Principle 8 of the Maastricht Principles). Global obligations ‘follow from the fact that the obligations of the Covenant are expressed without any restriction linked to territory or jurisdiction’ (CESCR, General Comment 24, para 27).
Unlike direct obligations, there is no direct relationship between a state as duty-bearer and an individual as rights-holder: global obligations are not owed to individuals in a particular state and the latter have no claim against states which do not comply with their global obligations. Rather, the international community as a whole has an obligation to assist states that lack sufficient resources to comply with their own obligations to realise socio-economic rights. More specifically, the obligation to provide international assistance and cooperation ‘is particularly incumbent upon those states which are in a position to assist others in this regard’ (CESCR, General Comment 3, para 14). Given the wealth and high development levels of sponsor states like the USA, Australia and EU Member States, one can assume that they are in a position to help partner states in the Global South realise socio-economic rights.
Notwithstanding the agreement, at a general level, that obligations of international assistance and cooperation exist, their scope and nature remain contentious and in need of clarification. More specifically, it remains unclear how to assign such obligations among the various members of the international community. In particular: who has an obligation to provide international assistance and cooperation to a state that hosts people on the move as a result of migration deals but lacks sufficient resources to realise their socio-economic rights? It could be argued that the obligation to provide international assistance and cooperation rests more heavily on sponsor states that cooperate with partner states than on other states on account of their cooperation. Thus, although this is not settled as a matter of lex lata, it is at least arguable that migration deals could trigger sponsor states’ obligations of international assistance and cooperation towards partner states in the Global South that host people on the move as a result of migration deals.
Whether sponsor states comply with these obligations depends on whether the support they provide to partner states contributes to realising the socio-economic rights of people on the move in partner states. Indeed, the fact that they already transfer resources to partner states in the context of migration control suggests that the implementation of migration deals could itself qualify as the provision of international assistance and cooperation. As noted above, the Facility for Refugees in Turkey makes a significant contribution to improving the plight of people on the move in Turkey, notably in terms of standard of living, health and education. However, most migration deals rather focus on preventing people on the move from reaching the territory of sponsor states and include few or no measures to mitigate their negative consequences on the socio-economic rights of people on the move, as illustrated by Australia’s cooperation with Indonesia.
Conclusion
Migration deals result in people on the move being contained in the Global South, where they are at risk of suffering violations of their socio-economic rights, such as the rights to an adequate standard of living, health and education. While states that host people on the move have the primary obligation to realise their socio-economic rights, the fact that people on the move do not reach the territories of sponsor states in the Global North that conclude migration deals with partner states does not mean that the latter have no obligations towards them. Indeed, under international human rights law, they can have the obligation to contribute to realising the socio-economic rights of people on the move. That is the case if a jurisdictional link exists between the state and a person on the move and possibly also more generally in light of the obligation to realise socio-economic rights through international assistance and cooperation. Therefore, policy makers in the Global North who conclude migration deals should bear in mind that such deals must comply with their obligations under international human rights law, including socio-economic rights.
* Dr. Annick Pijnenburg, Assistant Professor in International and European Law at Radboud University Nijmegen (The Netherlands)
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