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The Global Compact’s controversy (2/4): Migrants’ detention

On December 19th, the Global Compact on migration was adopted by the General Assembly with 152 votes in favour. Several States have decided to pull out (or are still considering whether to join or not) after going through a lengthy negotiation process (see The Global Compact’s controversy). In this article we are going to debunk one of the arguments against the signature of the Global Compact, the use of migration detention only as a measure of last resort.

Australia was at the forefront of the criticisms against objective 13 of the Global Compact on migration. In July, it announced that it would not sign the Global Compact because of the fact that migration detention should be used “as a measure of last resort”, which is in contradiction with Australia’s migration policy. Indeed, Australia operates offshore detention facilities on Manus Island and Nauru intended to prevent foreigners from entering Australia by boat to claim asylum and returns vessels at sea, a practice that is illegal under international law. Returning vessels at sea or “push-back” is violating the principle of “non-refoulement” (Article 33 of the 1951 Refugee Convention). “Non-refoulement” means that refugees cannot be forcibly returned to the country they are fleeing as their life and freedom would be in danger.

BRISBANE, AUSTRALIA - FEBRUARY 05 :Health worker signs at protest in support of churches offering sanctuary to refugees

The rights to liberty and security are fundamental human rights and are protected in article 9 of the International Covenant on Civil and Political Rights (ICCPR). Article 9 prohibits the arbitrary and unlawful detention of everyone. Several international treaties and protocols (which are binding) comprise provisions that are related to migrants’ detention. IOM defines the detention of migrants as the “restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority […].” The term “migrant” in this definition includes asylum seekers and stateless persons. The act of irregular entry or stay itself are not valid justifications for detention. The United Nations Working Group on Arbitrary Detention made clear that “criminalizing illegal entry into a country exceeds the legitimate interest of States to control and regulate illegal immigration and leads to unnecessary detention”.

Under international law, the detention of asylum seekers, refugees and migrants in an irregular situation must be a measure of last resort. Additionally, States can only lawfully limit the right to liberty of migrants in extraordinary cases, as a result of a comprehensive review of the individual situation. The Working Group on Arbitrary Detention argues that “[a]rbitrariness must be assessed in the light of all the relevant circumstances of a given detention”. Besides, the Working Group on Arbitrary Detention specified that “alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention”.

The final draft of the Global Compact includes the will to reexamine legislation and policies to ensure that

“migrants are not detained arbitrarily, that decisions to detain are based on law, are proportionate, have a legitimate purpose, and are taken on an individual basis, in full compliance with due process and procedural safeguards, and that immigration detention is not promoted as a deterrent or used as a form of cruel, inhumane or degrading treatment to migrants, in accordance with international human rights law”.

The Global Compact on migration does not forbid the detention of migrants, but only reiterates existing principle of international law. In this regard, Australia’s argument not to sign the global compact does not stand.

Author: Dr. Fanny Tittel-Mosser

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