The global compact as a milestone in global governance of migration

Migration is both an issue which is rarely out of the headlines and divides countries and people in unlikely ways. Between a warm welcome to those arriving and the construction of great obstacles to prevent anyone from getting in, there is a wide range of approaches to the issue. Furthermore, almost every migrant is a national of another country. It is the crossing of an international border which transforms a person from a citizen into a migrant and back again. Many terms are used to describe migrants, from relatively positive ones such as visitor or tourist, to the pejorative such as illegal immigrant or border offender. The UN’s Office of the High Commissioner for Human Rights has chosen to use the term ‘migrant’ to describe all people who cross borders voluntarily irrespective of objectives and length of time. The definition is wide enough to cover refugees and other forced migrants notwithstanding the fact that they may have sources of rights which are specific to them such as the UN Convention relating to the Status of Refugees.

The UN and its agencies have frequently engaged with issues of migration but in rather different ways. In terms of standard setting, the International Labour Office has adopted three conventions on migration: ILO Convention 97 dating from 1949, Convention 143 from 1975 and more recently in 2011, the domestic workers’ convention. In 1990, the UN General Assembly opened for signature and ratification the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families which, almost 30 years on, has 51 state parties and 16 (additional) signatories. In a somewhat different approach, in 2000, two protocols were attached to a UN convention against transnational organised crime, one against smuggling of migrants and the other against trafficking in human beings. These protocols call for the criminalisation of certain border crossing activities with little in the way of protection for migrants.

Various initiatives to discuss migration started in the UN in the 2000s but have generally ended in reports and not much else. The rather dramatic movement of refugees across Europe in 2015–2016 encouraged European states to seek more coordination on migration and asylum providing some of the necessary impetus for the New York Declaration for Refugees and Migrants adopted by the General Assembly on 19 September 2016. Although formally framed in the context of the Sustainable Development Goal 10.7 (facilitating orderly, safe, regular and responsible migration), in fact, the New York Declaration is very human rights oriented. Indeed, human rights obligations are referred to more than 30 times in the Declaration. The fifth paragraph states that the parties reaffirm the Universal Declaration of Human Rights and recall the core international human rights treaties. Furthermore, the Declaration calls on all states to ratify the UN Convention on Migrant Workers, a human rights treaty which has been unpopular with countries which see themselves as destinations for migrants. The Declaration called for two Global Compacts to be negotiated by the end of 2018 one on refugees (under the leadership of United Nations High Commissioner for Refugees (UNHCR)) and one on safe, orderly and regular migration (led by the Special Representative for International Migration with two facilitators, the Swiss and Mexican representatives and the assistance of the International Organisation for Migration).

One of the first questions that has arisen in respect to the Compacts is their status; the UN has not used the term ‘compact’ often before and never in the context of migration. There are a number of possibilities regarding the meaning of the term. At one end of the spectrum, there may be no difference between a ‘compact’ and a ‘resolution’. This position is reinforced by the statement in the draft Compacts that they are not legally binding. At the other end of the scale, a compact may be a non-binding form of standard setting which creates obligations on states to achieve the agreed objectives. This position is supported by various proposals in the drafts for monitoring mechanisms to track implementation (Gammeltoft-Hansen et al., 2017).

The Declaration itself does not clarify what the Compacts are to be, though there is reference to possible non-binding guiding principles and voluntary guidelines. One of the issues actively taken up in the consultation year (2017) that preceeded the year of negotiations (2018) was the legal status that the Compacts would have. In the negotiations, a number of states have been adamantly against any binding nature for the Compacts. On top of this, there has been much discussion about what, if any, monitoring there should be for the implementation of the Compacts, an issue which during negotiations appears to have been sidelined.

The first draft of the Compact for Safe, Orderly and Regular Migration was issued on 5 February 2018 (in UN parlance a zero draft). It has been followed by a zero+, first, second and now final draft published on 11 July. Following the lead of the New York Declaration, the first draft places substantial emphasis on the importance of existing human rights standards and their application to migrants. It is sometimes surprising how frequently state officials express surprise at the statement that migrants are entitled to the same internationally recognised human rights as citizens. The Compact should assist to dispel this misunderstanding about the application of human rights. According to the first draft, the objective of the Compact is to improve cooperation on international migration. It contains three sections: common understandings, shared responsibilities and unity of purpose. In the first section the emphasis is on objective, evidence-based and clear information of the benefits and challenges of migration. Under the heading ‘shared responsibilities’, the Compact aims to mitigate adverse drivers and structural factors that hinder people from staying in their own countries. It also intends to reduce vulnerabilities of people in the process of migration in particular by protecting their human rights and providing them with care and assistance. In the third section, titled unity of purpose, the Compact sets out a series of objectives:

These commitments are then fleshed out by objectives and actionable commitments (Guild and Basaran, 2018).

What is likely to be the long-term impact of the Global Compact for Safe, Orderly and Regular Migration? This question can only be answered by gauging the degree of mobilisation that the process has generated. A wide range of actors, governmental and civil society, have engaged with the process of developing the Compact. The year of consultation worked quite effectively to capture the attention of a wide range of actors for the process. This year of negotiations is, of course, much less interactive with civil society. Yet, the process has inspired many non-governmental actors to engage particularly in countries where the state doxa on migration is very negative. The possibility to discuss migration with representatives of states which are traditionally cast as ‘sending’ states has been seductive. The most important legacy of the Compact may be the heightened recognition of equal entitlement to human rights of migrants with citizens. It may also be the intellectual and practical inquiry into why migration is unsafe, disorderly, and irregular for some, when for others it is such a smooth process.