One of the most significant outcomes of the New York Declaration on Large Movements of Refugees and Migrants, a non-binding international agreement adopted by the United Nations General Assembly in September, 2016, was the launching of a two-year process to develop a Global Compact on Safe, Orderly, and Regular Migration, or as it is better known, the Global Compact on Migration.
The goal of the Compact is to identify specific policy goals and best practices to which UN Member States can commit in promoting safe and legal alternatives to irregular migration. While the document will reaffirm important principles outlined in the New York Declaration, its success will be defined by the actions Member States agree to take to address large-scale movements of migrants, ideally in a manner which upholds human rights while preserving national sovereignty.
UN Member States gathered in Puerto Vallarta, Mexico from December 4 to 6, 2017 to engage in a “stocktaking” meeting to assess the information gathered from a series of thematic and regional hearings held on various migration issues during 2017. The negotiating stage of the process, in which Member Stateswill negotiate language of the Compact, will begin in February2018, when the “zero draft,” or the initial draft, of the Compactis released by the co-facilitators of the process, Mexico and Switzerland.
From the thematic sessions and the deliberations in Puerto Vallarta, the major issues involved in the Compact have emerged more clearly, both points of consensus and points of contention. The US withdrawal from the Compact process the weekend before the Puerto Vallarta meeting, while regrettable, has notdiscouraged 192 other Member States from moving forward with their deliberations or from their commitment to develop a progressive and forward-looking agreement.
Civil society organizations, important contributors to the process, have released a blueprint for the Compact, entitled,“Now and How: Ten Acts for the Global Compact,” which offers recommendations for the Compact from a human rights-based perspective. The Holy See Mission has offered its own blueprint, entitled, “Responding to Refugees and Migrants: Twenty Action Points.”
There are several flashpoints which Member States will have to navigate to ensure the adoption of a Compact which makes a difference on the ground. During the negotiating phase of the process, Member States will have to resolve the following issues:
Increasing legal avenues for migration. Almost uniformly, the notion of providing legal channels for migration was reaffirmed, but how nations will accommodate this goal was left ill-defined.The Scalabrini International Migration Network (SIMN) hasstated that family immigration offers extensive benefits to nations, including economic entrepreneurship, social cohesion, and efficient immigrant integration. Family immigration should not be sacrificed for labor migration—immigration is not a zero-sum game.
A point of contention emerging over the Global Compact on Migration is the use of temporary labor programs, which can take various forms, including “seasonal’ or exploitative “temporary” programs in which foreign laborers come and work for a short time and then leave after the harvesting season is over.
Civil society advocates have long characterized these programs as inherently abusive, as workers are tied to one employer and wages and working conditions are substandard, with little oversight from authorities. They argue that foreign laborers should have full labor rights and the ability to work for more than one employer, so as to be able to better assert those rights.
Governments and some in the private sector generally find these programs useful in meeting their agricultural and low-skilled industry labor needs. Governments find that these programs are more easily sold to their citizens, as, theoretically, foreign workers do not remain in the country and compete with the populace for other jobs. Whether Member States can agree to a labor migration model in the Compact that protects labor and human rights while also meeting state labor needs remains an open question.
Another area of possible contention is the balance between labor migration and family-based immigration visas. While the Global Compact would likely not specifically devalue family-based immigration, an over-emphasis on labor migration without a reinforcement of the importance of family-based visas could give a green light to Member States to cut family immigration slots.
Another area of debate will be over the demand for high-skilled workers in developed nations. Several questions have emerged from the initial discussions. First, will high-skilled worker visas supplant, or even eliminate, visas for low-skilled workers and family members? Some nations, including the United States, have proposed a merit-based or “point”-based system, in which skills, education, and wealth take precedence over family-based immigration and lower-level skills. Such programs, opponents argue, would allow high-skilled applicants to become permanent residents while low-skilled workers would be relegated to temporary worker programs, making them an underclass of persons.
The second potential conflict is the age-old “brain drain” debate, in which developed nations recruit the best and brightest from developing countries. Nations of the global south have consistently expressed concern about losing their most educated and skilled workers to developed countries, thus stilting their own development. How high-skilled labor programs are presented in the Compact, if at all, should include the concept ofreturn, whereby workers receive training in developed nations and are able to return to their countries of origin to contribute to their development.
A final challenge, which also represents an opportunity, is the chance to set targets for increasing legal avenues for migration, perhaps tied to the 2030 Sustainable Development Goals. In a statement before the Puerto Vallarta stocktaking meeting, SIMN proposed that Member States increase their legal avenues for migration by 25 percent by 2030, in line with the International Organization of Migration’s (IOM) 2007 estimate of the percentage of undocumented migrants in the world.
The issue of sovereignty and enforcement. In their statementannouncing their withdrawal from the Global Compact process, the United States suggested that the Compact would infringe upon “national sovereignty” and that the United States would instead create and conduct its own immigration policies. This argument is disingenuous, given that the Compact will be a non-binding document. Nevertheless, some Member States may see the Compact as an avenue to tighten borders by encouraging international cooperation on enforcement.
Indeed, several Member States have prioritized “border cooperation,” which is seen as a code word for regional deterrence arrangements. Such arrangements have materialized in Asia through the interdiction and offshore processing program initiated by the Australian government; in the Americas through US-Mexico cooperation in stemming the flow of refugees from the northern triangle of Central America; and in Europe, where the European Union forged an agreement with Turkey to halt the migration of Syrian refugees. These policies are characterized by interdiction and return, the liberal use of detention, and the closing of borders.
The New York Declaration on the Large Movements of Refugees and Migrants contains language in paragraph 24 that encourages “international management and border cooperation” and the sharing of “best practices,” interpreted as enforcement practices. Such language could be used as a springboard to enhance enforcement coordination in regional settings or, at a minimum, to legitimize policies such as detention, interdiction and expedited return, and the closing of borders.
SIMN, in a statement to an IOM-hosted meeting in April 2017, suggested that the success of the Global Compact would be measured by how these deterrence arrangements are mitigated, not augmented. SIMN has argued that the “externalization of borders” should be replaced with an “externalization of protection.” In other words, nations must cooperate on sharing the responsibility in protecting large movements of migrants, not in pushing them back to their countries of origin, often intodangerous situations.
An enforcement-related issue surfacing is the issue of the return of migrants to their countries of origin, which could include language encouraging sending nations to more readily accept their deported nationals. Member States are anxious to develop a system that facilitates returns, while advocates have expressed that due process protections and re-integration efforts must be incorporated into any program of return. CMS has argued that returnees should receive retirement benefits they have accrued from their work in destination countries.
The issue of unaccompanied children and detention should again surface as a point of contention, as it was during the New York Declaration process. Some nations, including the United States, have maintained that governments should have an option to detain minors as a “last resort.” Other Member States, as well as civil society, argue that detaining children, regardless of their age, should be ended. How these two positions are reconciled could become a flashpoint during the negotiations, just as it was during the New York Declaration process. The rights of child migrants extend beyond the issue of detention, as well.
Of the many complex issues involved in the Compact, the balance between enforcement and protection is among the most challenging. How Member States resolve this balance could define its legacy.
Filling Gaps in Protection for Vulnerable Migrants. An issuethat could be important to both the Migration Compact and the Global Compact on Refugees concerns migrant populations that do not meet the refugee definition set forth in the 1951 Convention on Refugees, but that nevertheless have protection needs. For example, migrants who flee natural disasters, climate change, or generalized violence often do not meet the five grounds for refugee protection, but can be in life-threatening danger if returned to their home country.
One solution is to adopt principles from the Nansen Initiative, which encourages nations to take steps to assist at-risk populations fleeing natural disaster, and the Migrants in Countries of Crisis (MICIC) initiative, which covers migrants caught in conflict or natural disaster in the nation in which they are residing. A more global commitment to these principles by UN Member States would encourage a more coordinated response to these situations. The adoption and use of temporary protection laws, similar to the Temporary Protected Status (TPS) law in the United States, is another way to offer protection to these populations, at least until it is safe to return home.
Immigrant Integration/Regularization. A strong theme among participants in the Puerto Vallarta stocktaking meeting was immigrant integration, or policies that facilitate the contributions of immigrants and their participation in their new society.Although Member States acknowledged immigrant integration as a worthy goal, there were divergent views as how to best achieve it. Many pointed to the role of local governments and civil society in assisting in this task, while others emphasizedthat it was part of a national government’s role to provide services needed to help the integration of immigrants. The Compact will likely recommend a “whole-of-society” model tointegration, leaving it up to Member States to define how such a model is constructed.
The integration issue also has relevance in a nation’s immigration policies. Migrants who enter as permanent residents by definition have more leverage and possibilities for integration than those on temporary visas. Civil society has recommended that regularization programs be adopted to permit long-term undocumented residents with equities to integrate more easily into society. Member States generally have not embraced the idea of regularization as an effective tool in this regard, with some arguing that it incentivizes unauthorized immigration.
Complementarity of the Global Compacts. One area that has received insufficient attention, at least publicly, are overlapping issues between the Global Compact on Migration and the Global Compact on Refugees. There are many potential areas of overlap, as large movements of persons include those who are migrating for different reasons and individuals with mixed motives —some have valid refugee claims while others may not.The treatment of asylum-seekers, migrants in vulnerable situations, and victims of human trafficking, for example, must be coordinated between the two Compacts, so that they are consistent.
To date, there remains no clear line of demarcation between the two Compacts, not to mention no formal mechanism for ensuring they do not conflict with each other. It is vital, however, that none of the overlapping issues fall through the cracks and are left unaddressed.
Implementation/Targets. Perhaps the most significant issue to determine the long-lasting impact of the Global Compact on Migration is how it will be implemented. At the Puerto Vallarta meeting, there were suggestions that follow-up mechanisms be established to monitor implementation, and that a UN agency, such as IOM, be charged with assisting Member States in meeting the Compact’s goals. A “financing facility” to help Member States achieve certain goals was also recommended, as well as a periodic progress report. It was made clear, however, that Member States would themselves determine if they were meeting their goals.
The question is what goals, or targets, Member States would agree to meet. The term “actionable commitments” has been used frequently, but without specific targets included in the Compact to measure progress toward specific goals, any judgment would be subjective. To their credit, the co-facilitators of the process, Mexico and Switzerland, have emphasized the need for actionable commitments, but specific suggestions tied to indicators and goals have yet to materialize in the public sessions.
What should an actionable commitment look like? There are several examples:
Such concrete commitments would give the Compact some teeth, and, importantly, make a difference on the ground. Specific and quantifiable targets should be added to the commitments and could be tied to the UN 2030 Sustainable Development Goals (SDGs), giving Member States sufficient time to achieve them.
The question of implementation goes to the purpose of the Global Compact, which, as its formal title suggests, is to increase safe, regular, and orderly migration. With quantifiable and achievable targets to achieve its purpose, the Global Compact would become a vital, and relevant, international instrument in the years ahead.
Moving Forward. With the information-gathering stage of the process nearing its conclusion, and the negotiation phase about to begin, the real work on the Compact still lies ahead. The negotiation phase of the process will commence with the release of the “zero draft” document by the co-facilitators sometime in February. It is during this phase that the issues of contention, but also moments of opportunity, will be joined. Hopefully, Member States will take risks and push for a progressive document which will make a real difference in the lives of migrants around the world.