The adoption of the New York Declaration on the Large Movements of Refugees and Migrants by the United Nations (UN) General Assembly on September 19 has launched a new process to negotiate two compacts by 2018: the Global Compact on Refugees and the Global Compact on Safe, Orderly, and Regular Migration (hereinafter referred to as the Global Compact on Migration).
Agreeing to a new Global Compact on Refugees should be challenging enough, but reaching an agreement on a Global Compact on Migration will require skill, patience, and, above all, compromise. While the issue of refugee protection has a normative framework, including the 1951 Refugee Convention and the 1967 Protocol, a global agreement on migration, in all of its various forms, would be groundbreaking. The issues UN member states will have to address in a migration compact are numerous and complex and could pit countries in the global North against the global South, but they are achievable. A discussion of a few key issues follows.
Binding or Nonbinding
Although it would likely not be decided until later in the process, a central issue is whether a Global Compact on Migration would bind any of its signatories to commitments and “deliverables,” unlike the nonbinding New York Declaration. There are four possibilities.
First, the compact could follow the way of the declaration and become a political statement that lays down guidelines for nations to follow, but does not require them to do so. This outcome would be counterproductive, as it would represent another UN document that ultimately fails to improve the status quo. With forced migration so prevalent throughout the world and in need of humane solutions, such an outcome would be a waste of energy and resources.
A second possibility would be to produce a binding document that, under international law, would require signatories to adhere to its tenets. While this outcome would be ideal, it is unlikely, given that member states are reluctant to commit to goals which bind them to long-standing commitments, especially at a time when undocumented immigration is a controversial issue in most countries. Many nations would require approval from their legislative bodies in order to comply, with uncertain outcomes. Moreover, it is not clear what the global compact would require, as it could conceivably include enforcement-related provisions that undermine the goal of protection.
A third outcome would bind member states to some parts of the agreement but not to others, similar to the Paris Climate Accords. While this seems like a balanced approach, it is fraught with peril, as provisions which require the most resources and action would fall into the nonbinding category (i.e., based on a nation’s capacity or political situation) and binding commitments would only marginally improve the status quo or, even worse, be applied to enforcement actions.
The fourth option, probably the one upon which states could reach consensus and also would advance the global protection regime, would be a document that sets out specific targets for both nations and the global community to meet within a certain time. It would include a monitoring system and feature annual reports by an independent organization in an attempt to hold member states accountable. It would be binding in that it would place unwanted attention on those member states that do not comply, often a powerful tool in international diplomacy.
It could include specific targets, such as increasing development aid, enhancing protection mechanisms in transit countries, and instituting appropriate screening measures at borders. For example, it could require nations to increase expenditures on alternative forms of detention or on the training of enforcement agents in human rights law. It also could provide civil society with an advocacy tool to press their governments to meet specific goals.
Substantively, there are a myriad of issues involved with migration. One issue difficult to quantify but nevertheless devastating to communities globally is family separation. Irregular migration often can lead to family breakdown. It has a long arm, as it impacts family members in source, transit, and destination countries and impacts family members at all levels — children, parents, and grandparents. In some cultures, migration of male family members — fathers or adult children — has become a rite of passage, almost an obligation as a father or a son. Once they migrate, the duty of caring for the remaining family members, including young children, falls to the mother, grandmother, or extended family members. Increasingly, women are forced to make the decision to migrate to support the family.
Often, families must make heart-wrenching decisions on improving their economic situation or their safety or remaining together and staying poor and in danger. Even when a family member is reunited with a loved one in a destination country, the threat of deportation looms large. Member states will have to grapple with this issue and pledge to strengthen legal avenues for family reunion, including in situations of transit and in labor programs.
In the New York Declaration, family reunification was mentioned sporadically and often in a list of other forms of migration, including labor. The Global Compact must address this phenomenon more specifically, with concrete steps for alleviating the breakdown of the family due to forced migration.
The number of unaccompanied alien minors who migrate has been increasing dramatically all over the world. Migration can cause trauma in children and make them vulnerable to physical and sexual violence.
Children should receive special consideration for protection, regardless of their legal status. Consistent with the UN Convention on the Rights of the Child, nations must commit to use a best interest of the child standard in assessing the situations of children and must not subject them to the same treatment as adults.
One of the more contentious issues in the New York Declaration was language concerning the detention of children. The final language stated that children should be detained as a last resort, but it leaves open the possibility for nations to detain them, if needed. Banning all child detention should be a goal of the Global Compact on Migration.
One of the reasons for irregular migration is the absence of legal avenues for migrant workers to migrate safely and legally to other countries to work in difficult jobs. As the world has become more globalized, migrant workers are migrating to where they can find work, but often do so in dangerous conditions, risking their lives. Once in the destination country, they are not protected from exploitation and abuse in the workplace. As Pope Francis has said, they should not be “pawns on the chessboard of humanity.” Member states will need to revisit issues involving low-skilled migrant workers, such as their safe passage to work and appropriate protections once in the destination country.
The fundamental issue of labor migration could be a difficult one, as some of the poorer countries are sensitive to losing their own workforce and want to develop their own economies. This is especially true with regard to healthcare professionals and persons recruited to fill high-tech or scientific jobs. The issue of “brain drain” and “brain recirculation” should be a recurring theme in negotiations over the compact.
A side item is how the compact will address the use of remittances. While it is appropriate to channel remittances into development programs and to improve the general welfare of a source country, the reality is that individuals send money back to their families and loved ones, to be used to support their families. Using remittances for other purposes violates individual rights. Moreover, remittances should supplement, not take the place of, other forms of development assistance. In truth, the remittance model is a symptom of a world in which living wage jobs are more available in developed nations, leading to irregular migration and family separation.
Member states should agree that remittances do not, in themselves, represent a long-term economic assistance model and cannot replace broader and more sustainable economic development policies. Moreover, member states should finally acknowledge that the reliance on remittances can be an inadvertent cause of forced migration.
The issue of immigrant integration is often ill-defined, but nevertheless crucial to the creation of stable immigrant communities in receiving nations. The investment in new populations by a destination country in terms of legal status or employment access can be invaluable in ensuring that migrants integrate successfully into their new nation. The provision of services, such as health care, language training, and education access, also makes a difference in people’s lives and in their ultimate integration success.
The degree to which member states commit to integration efforts should indicate their commitment to long-term solutions to the challenge of forced migration. The controversial issue of legalization in destination countries, part of an integration strategy, should be considered in the compact.
On the enforcement side, member states could attempt to reaffirm the use of deterrence policies to stem large movements of refugees and migrants. The New York Declaration includes language which encourages border enforcement cooperation between nations, which is often used to deter or control large migration flows.
As seen in the European deal with Turkey over Syrian refugees, US-Mexico cooperation in stopping Central American refugees from reaching the United States, and Australia’s interdiction practices and use of offshore detention centers, deterrence policies are being deployed globally.
Ideally, nations should replace deterrence policies with protection initiatives. Not only do the former violate human rights, they are ineffective. At a minimum, the Global Compact on Migration needs to address this issue by requiring that any policies which extend borders through interdiction must be accompanied with an equal or greater investment in protection mechanisms at the border and regionally. This should include the strengthening of asylum capacity in transit nations and the implementation of regional responsibility-sharing practices, such as regional resettlement programs.
The use of immigrant detention as a deterrence policy worldwide also should be discussed. As mentioned, families and children are subject to detention, often in deplorable conditions. Alternatives to detention must be available, especially for vulnerable populations like family units and children.
Finally, responsibility sharing in terms of rescue, both at sea and on land, is an issue that cannot be ignored. For example, Europe has failed to share responsibility in this area, leaving it to countries such as Italy, Greece, and Libya, to provide rescue to migrants in the Mediterranean. Such rescue programs should not masquerade as interdiction. Nations which adjoin each other should work together to rescue migrants on land, especially in desert regions.
Moreover, nations should refrain from enforcement postures which drive migrants into dangerous journeys and to death. Governments should support efforts to reunite the remains of the dead to their loved ones.
Gaps in Protection
It is clear that the current international protection regime is insufficient to the protection needs of today. As such, other nonbinding agreements should be given more weight.
The Nansen Initiative, which sets out guidelines for the displacement of large populations because of natural disaster or climate change, and the Migrants in Countries in Crisis (MICIC) Initiative, which offers principles for protecting migrant workers who are in danger due to climate and conflict, offer solid frameworks to address the needs of persons forced to migrate who otherwise do not have grounds for protection. Issues such as temporary protection measures and a responsibility-sharing framework for assisting these populations should be subjects of the dialogue.
These issues do not constitute an exhaustive list of what participating states should cover, but each of these issues must be engaged. The consultations and negotiations over the Global Compact on Safe, Orderly, and Regular Migration should be complex and challenging, but, if ultimately successful, rewarding and lifesaving.
Growing xenophobic sentiment across the globe could weigh heavily on the negotiations and make the effort even more challenging. Civil society, which can raise issues which member states may be reluctant to address, should be allowed ample opportunity to provide input during the entire process.
It is vital that any final compact is a live document, one that compels the global community to move forward and which contains enforceable benchmarks. It remains to be seen whether member states will successfully tackle the most contentious issue of global migration, but they should make a good faith effort to achieve this goal. Without a compact rooted in genuine state cooperation and commitment, forced migration will only increase further in the years ahead.
December 2, 2016