With migration an increasingly divisive political issue in the United States and Europe, could global governance step in to address the problem? More than 100 countries will meet Dec. 10-11 in Marrakesh, Morocco, to formally adopt the first treaty on migration negotiated under the United Nations.
The Global Compact for Migration is the result of two years of hard negotiations led by Louise Arbour, a former U.N. high commissioner for human rights. At first glance, the compact seems a significant breakthrough in times of tough rhetoric and harsh policies for migrants. The draft text acknowledges the rights of migrants and the need to protect vulnerable migrants. However, the compact will not result in immediate changes in how countries treat migrants.
Why create a global agreement on migration?
The Global Compact was initiated in September 2016 when 193 countries met at the United Nations in New York for a high-level summit on migration and refugees. The summit followed a Northern Hemisphere summer that saw a substantial increase in migrants and asylum seekers crossing the Mediterranean into Europe. Many in Europe viewed the deaths at sea and the increase in asylum seekers as a “crisis.”
With 85 percent of the world’s refugees housed in developing countries, not in the West, there is a broader crisis that is not as widely acknowledged. The summit produced an agreement to establish two separate tracks of negotiations — one for migration, another for refugees. Refugees are treated differently under international law than migrants because they are fleeing a well-founded fear of persecution.
Many countries hoped to see new international frameworks for migrants and displaced peoples. The United States was strongly invested in global cooperation, and in September 2016, then-President Barack Obama hosted a Leaders’ Summit on Refugees at the White House, as a complement to the U.N. summit. The U.N. summit resulted in the “New York Declaration,” which called for the creation of a Global Compact for “Safe, Orderly and Regular Migration.”
The final draft of the compact, issued in July 2018, includes some notable breakthroughs. Countries reaffirmed their commitment to protecting the human rights of migrants and refugees “regardless of their migration status” (preamble, paragraph 11). This is a significant step — countries recognize the rights of refugees but are reluctant to acknowledge migrants’ rights, and there is no international treaty for migrants’ rights equivalent to the Refugee Convention.
The final draft also represents a small win for people affected by climate change, as it encourages nations to ensure they have access to humanitarian assistance and respect their rights, wherever they might end up. The compact also affirms that migration is a “source of prosperity, innovation and sustainable development.”
Here’s where the Global Compact falls short.
The compact is the first international agreement on migration under the United Nations. However, it is not a binding international treaty that will protect migrants’ rights, as many critics claim. The compact has three principal weaknesses. First, the final draft is divided between affirming the rights of migrants and affirming national sovereignty. The compact stays conveniently vague on how the international community should deal with cases in which countries choose not to protect migrants’ rights.
Second, the Global Compact is not hard international law but a “non-legally binding, cooperative framework.” Its primary purpose is symbolic — to demonstrate that countries can identify mutual areas of cooperation on migration. The draft is weak on implementation, monitoring and review mechanisms — which suggests each country will decide how to implement it.
Third, a number of significant players have pulled out of the negotiations. In December 2017, U.S. Ambassador to the United Nations Nikki Haley announced that the U.S. would not participate, stating that “we will decide how best to control our borders and who will be allowed to enter our country.”
Since then, Australia, Hungary, Switzerland, Israel, Austria, the Czech Republic, Slovakia and, most recently, Italy, have announced that they will not participate in the final summit in Marrakesh. Germany’s Alternative für Deutschland also campaigned hard but ultimately failed to pull Germany out of the Global Compact. When the German parliament voted in favor of signing the Global Compact, several hundred people took to the streets to protest the decision.
Many global leaders share concerns similar to those expressed by President Trump. Australian Home Affairs Minister Peter Dutton explained, “We’re not going to surrender our sovereignty — I’m not going to allow unelected bodies to dictate to us, to the Australian people.”
The Austrian government stated that signing the pact, even though it is not binding, could eventually help lead to the recognition of a “human right to migration.” This position is not surprising, as it follows a more general trend of skepticism toward global institutions, international law and human rights — and a desire to close borders to migrants. Perhaps the only surprise is that more countries haven’t abandoned the Global Compact.
Countries don’t want new international laws to protect migrants.
Countries have long rejected attempts to expand international law to cover vulnerable migrants, as my research has examined. In 2011, U.N. High Commissioner for Refugees António Guterres sought to expand his agency’s protection mandate. He argued that “more and more people are being forced to flee” for reasons outside the parameters of the 1951 Refugee Convention and that countries should assist these people through his agency.
In 2011, in the lead-up to a major ministerial meeting, Guterres and agency officials urged the international community to formulate and adopt a set of principles to protect people forced to leave their countries who did not qualify for official refugee status. However, the vast majority of countries rejected Guterres’s plea, well before the era of Trump and other leaders taking a tough stance on immigration.
Countries were — and are — wary about creating international laws that place restrictions on their migration policies. The Global Compact is a notable new international agreement but will have little real force, given its ambiguity and lack of obligation — and the unfortunate fact that countries are reluctant to commit to new international obligations on migrants’ rights.
Nina Hall is an assistant professor in international relations at the Johns Hopkins University School of Advanced International Studies (Europe). She has published extensively on the global governance of climate-related displacement and is the author of “Displacement, Development and Climate Change, International Organizations Moving Beyond their Mandates.” Follow her on Twitter @ninawth.