The Migration Compact entails a very different process. Institutionally, the International Organization for Migration (IOM) is taking a lead role, in part given its new relationship with the UN, and there are a large number of actors keen to influence who is encompassed by the Compact, what standards it reflects, and what institutional arrangements it recommends. UNHCR will also contribute to this process, particularly in relation to its protection and operational expertise.
As already noted above, the process for the Migration Compact is one of intergovernmental negotiation, which creates inherent challenges, competing interests, and the need for compromise, given that the final product will be a negotiated, agreed text.
Between April and November 2017, there will be a series of consultations with a wider variety of stakeholders (Phase I). Some will be new meetings, while others will take place within existing frameworks, such as IOM’s International Dialogue on Migration in April 2017. That meeting will focus on:
- implementation of the migration-related targets in the Sustainable Development Goals;
- whole-of-government and whole-of-society approaches to migration;
- strengthening migration governance capacities for the protection of migrants at risk (eg by facilitating labour migration, and through arrangements for return and reintegration consistent with international standards); and
- existing and envisaged cooperation and follow-up mechanisms aimed at facilitating safe, orderly and regular migration.
The modalities resolution outlines the formal preparatory process in Phase I. Meetings will be held in Geneva, New York and Vienna (paragraph 15), respectively addressing:
a. Human rights of all migrants, social inclusion, cohesion, and all forms of discrimination, including racism, xenophobia and intolerance (April/May 2017);
b. Irregular migration and regular pathways, including decent work, labor mobility, recognition of skills and qualifications, and other relevant measures (October 2017);
c. International cooperation and governance of migration in all its dimensions, including at borders, on transit, entry, return, readmission, integration and reintegration (June 2017)
d. Contributions of migrants and diasporas to all dimensions of sustainable development, including remittances and portability of earned benefits (July 2017);
e. Addressing drivers of migration, including adverse effects of climate change, natural disasters and human-made crises, through protection and assistance, sustainable development, poverty eradication, conflict prevention and resolution (May 2017)
f. Smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims (September 2017).
Between November 2017 and January 2018, there will be a stocktaking process (Phase II). The Migration Compact will then shift to a more formal series of negotiations by States (from February to July 2018 – Phase III).
Importantly, the modalities resolution emphasizes ‘the importance of contributions that take into account different realities’, thus encouraging contributions from all relevant stakeholders, ‘including civil society, scientific and knowledge-based institutions, parliaments, local authorities, the private sector and migrants themselves’ (para 8), including by sharing best practices and concrete policies. It is therefore striking that the resolution also stresses that ‘the intergovernmental nature of the negotiations, however, will be fully respected’ (para 7).
There are a number of conceptual and substantive challenges. First, it is not clear who is encompassed by the Migration Compact. Whereas refugees are clearly defined in international law, migrants are not. Different stakeholders have different interpretations of who is encompassed by that concept, and its ambit is potentially very wide.
Secondly, how broad should the Compact’s scope or coverage be? The New York Declaration states that the Compact should present a ‘framework for comprehensive international cooperation on migrants and human mobility’, covering ‘all aspects of international migration, including the humanitarian, developmental, human rights-related and other aspects of migration.’
Its wide focus includes – but is not restricted to – the elements set out in paragraph 8 of Annex II of the New York Declaration:
(a) International migration as a multidimensional reality of major relevance for the development of countries of origin, transit and destination, as recognized in the 2030 Agenda for Sustainable Development;
(b) International migration as a potential opportunity for migrants and their families;
(c) The need to address the drivers of migration, including through strengthened efforts in development, poverty eradication and conflict prevention and resolution;
(d) The contribution made by migrants to sustainable development and the complex interrelationship between migration and development;
(e) The facilitation of safe, orderly, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies; this may include the creation and expansion of safe, regular pathways for migration;
(f) The scope for greater international cooperation, with a view to improving migration governance;
(g) The impact of migration on human capital in countries of origin;
(h) Remittances as an important source of private capital and their contribution to development and promotion of faster, cheaper and safer transfers of remittances through legal channels, in both source and recipient countries, including through a reduction in transaction costs;
(i) Effective protection of the human rights and fundamental freedoms of migrants, including women and children, regardless of their migratory status, and the specific needs of migrants in vulnerable situations;
(j) International cooperation for border control, with full respect for the human rights of migrants;
(k) Combating trafficking in persons, smuggling of migrants and contemporary forms of slavery;
(l) Identifying those who have been trafficked and considering providing assistance, including temporary or permanent residency, and work permits, as appropriate;
(m) Reduction of the incidence and impact of irregular migration;
(n) Addressing the situations of migrants in countries in crisis;
(o) Promotion, as appropriate, of the inclusion of migrants in host societies, access to basic services for migrants and gender-responsive services;
(p) Consideration of policies to regularize the status of migrants;
(q) Protection of labour rights and a safe environment for migrant workers and those in precarious employment, protection of women migrant workers in all sectors and promotion of labour mobility, including circular migration;
(r) The responsibilities and obligations of migrants towards host countries;
(s) Return and readmission, and improving cooperation in this regard between countries of origin and destination;
(t) Harnessing the contribution of diasporas and strengthening links with countries of origin;
(u) Combating racism, xenophobia, discrimination and intolerance towards all migrants;
(v) Disaggregated data on international migration;
(w) Recognition of foreign qualifications, education and skills and cooperation in access to and portability of earned benefits;
(x) Cooperation at the national, regional and international levels on all aspects of migration.
The modalities resolution breaks down particular themes for discussion in the Phase I meetings, including (among the drivers of migration) the ‘adverse effects of climate change, natural disasters and human-made crises’, and the role of protection and assistance, sustainable development, poverty eradication, conflict prevention and resolution. Other specific themes are listed under the Phase I–III headings above.
In considering these issues, paragraph 20 of the modalities resolution specifically invites States to take into account ‘their perspectives with regard to the complex interrelationship between migration and sustainable development, as well as migration and all human rights, gender equality and empowerment of women and girls, the needs of migrants in vulnerable situations, and perspectives involving migrant children and youth, including unaccompanied migrant children, in order to promote a comprehensive understanding of international cooperation and migration governance in all its dimensions’.
Thirdly, how normative is the Migration Compact intended to be, compared to how practical? The Compact itself is not binding, and in the New York Declaration, States committed only to considering adopting non-binding guiding principles on the treatment of migrants in vulnerable situations (paragraph 52). The modalities resolution states that the Migration Compact ‘may include the following main components: actionable commitments, means of implementation and a framework for follow-up and review of implementation’ (paragraph 2).
Importantly, paragraph 5 of Annex II of the New York Declaration notes:
We will cooperate internationally to ensure safe, orderly and regular migration involving full respect for human rights and the humane treatment of migrants, regardless of migration status. We underline the need to ensure respect for the dignity of migrants and the protection of their rights under applicable international law, including the principle of non-discrimination under international law.
Paragraph 7 acknowledges:
that poverty, underdevelopment, lack of opportunities, poor governance and environmental factors are among the drivers of migration. In turn, pro-poor policies relating to trade, employment and productive investments can stimulate growth and create enormous development potential. We note that international economic imbalances, poverty and environmental degradation, combined with the absence of peace and security and lack of respect for human rights, are all factors affecting international migration.
Even though there is no single instrument on the rights of migrants, there are nevertheless a number of existing legal standards that need to be reflected and built upon in the Global Compact.
What should the Global Compact for Migration entail?
In addition to the thematic issues set out in paragraph 8 of Annex II of the New York Declaration, we suggest that the Global Compact reflect/include the following elements:
- provide a clear elucidation of whom it covers and why;
- reflect existing legal protections (for example, in human rights law, labour law, etc) – there is no lack of applicable law, even if there is no single instrument on migrant rights;
- ensure that the human rights of migrants are safeguarded, irrespective of their formal legal status;
- recognize that forced migrants who are not refugees may still benefit from the principle of non-refoulement under human rights law;
- progressively develop new norms on the protection of migrants;
- commit to address gaps in migrant protection through meaningful and concrete responses;
- enhance international migration governance;
- identify protection concerns in different contexts, but also note where the interlinkages lie (across a spectrum of displacement);
- identify migration as an opportunity – for sending and receiving States, individuals and communities (for example, migration/remittances may in some cases provide better resourcing than foreign aid, but must be accompanied by longer-term economic/development policies);
- focus on protection and the realization of capabilities, not deterrence;
- create expanded channels for safe and regular migration;
- acknowledge that migration can be a form of adaptation;
- stress the importance of family unity;
- take a long (historical) view of good practices and consider how they might be adapted to present and future contexts;
- consider whether there any good examples of collaborative processes or partnerships that might be applicable;
- draw on wide expertise across government and international organizations (eg not just immigration, but development, labour, etc), including through broad consultation processes; and
- be applied in a non-discriminatory manner.
The Global Compact should not dilute refugee protection by including people who are, in fact, refugees within its ambit.