By distinguishing between refugees and migrants, international law underestimates the plight of people displaced by poverty and climate change.
CAIRO — Last December at a summit in Marrakesh, Morocco, 164 countries adopted the Global Compact on Migration, a United Nations-led agreement that aims to forge cooperation on managing migration around the globe. The compact's supporters hail it as a landmark, the first step towards creating an international legal framework that addresses migrants generally, and not just refugees.
But to understand whether the compact will ever be effective, it is important to look at the context in which it was born.
In December, the EU's border guard agency, Frontex, announced that irregular crossings into the EU are at their lowest in five years — in fact, crossings in 2018 were down 92% from the peak of the "migrant crisis' in 2015. That is largely because the Italian government has worked hard to halt crossings from Libya and via the Central Mediterranean route to its shores. Two days after the Frontex announcement, Pope Francis appealed for an end to a deadlock between Italy and Malta, which were feuding over their mutual refusal to allow two boats carrying a total of 49 migrants to dock in their ports.
The so-called migration crisis of 2015 — the year in which image of three-year-old Aylan Kurdi, who drowned as his family tried to reach Europe, circulated across global media — was also marked by one of the deadliest shipwrecks, when more than 800 people perished after a boat bound for Italy capsized off the Libyan coast. It was the year too that Germany unilaterally suspended the Dublin Convention, policies regulating refugees and migrants arriving in Europe irregularly, and allowed Syrians and others to enter the country, helping to spur asylum seekers arriving in Europe to a record high.
In response, the UN General Assembly unanimously affirmed the New York Declaration for Refugees and Migrants in September 2016. The declaration stated that the rights of both migrants and refugees should be protected, and laid the groundwork for not just the compact on migrants but also the Global Compact on Refugees, both of which were adopted this past December.
The Marrakesh summit itself was marked by the conspicuous absence of the United States. It pulled out even before negotiations began, and issued a statement just days before the summit affirming its opposition to the compact, viewing any attempt to globalize migration management as impinging on state sovereignty.
Just a few weeks before the summit, images of U.S. agents using tear gas to push back migrants, including women and children, attempting to cross the U.S.-Mexico border circulated across international media. Donald Trump, who made tougher immigration enforcement a cornerstone of his election campaign, once again turned immigration into a hot issue just in time for the November 2018 congressional elections, by stoking fears of a "migrant caravan" headed to the United States and claiming that he would close the border. At the end of 2018, the U.S. government went into partial shutdown over the funding of Trump's long-promised wall along the southern border.
The U.S. absence from Marrakesh set the tone for a number of other significant so-called "destination countries' to also refuse to take part in the summit. Australia, a country infamous for the lengths to which it goes to restrict irregular migration to its shores, did not sign the compact.
Refugees and migrants face many common challenges and have similar vulnerabilities.
Not surprisingly, Italy refused to take part in the Marrakesh meeting. It has toughened its stance on irregular migration under populist Interior Minister Matteo Salvini, leader of the far-right Lega party. In June of 2018, under his direction, the Italian government refused port access to a ship carrying over 600 migrants, prompting a humanitarian crisis and diplomatic impasse that only ended when Spain agreed to admit the ship. Many of the other European countries that also refused to take part in the compact, such as Hungary and Austria, have seen the rise of far-right politicians who have stoked xenophobic anti-migrant sentiments.
Hungarian Prime Minister Viktor Orbán has repeatedly stated that there is a direct correlation between terrorism and migration and said Hungary does not even need a single migrant to sustain itself. In Brussels, following the summit, over 5,000 people marched in a protest organized by Flemish right-wing parties opposed to their country's signing of the compact — a move that caused a rupture within the government and led to the collapse of the parliamentary majority. The protest in Brussels and the withdrawals from the pact by some EU members have once against exposed the struggle the EU has faced in trying to harmonize migration policy.
Hungarian President Viktor Orbán — Photo: European People's Party/Flickr
The events show the depth of opposition to migration among the countries that are most often would-be destinations. The very adoption of the two new separate compacts last December — one for refugees, and one for migrants — points to the historical contention with the migration question, especially when put in the broader displacement context alongside refugees.
Refugees and migrants face many common challenges and have similar vulnerabilities, especially in the context of mass migrations. Both groups have the same universal human rights. But their treatment is governed by separate legal frameworks.
For refugees, that has been the 1951 Convention Relating to the Status of Refugees. This UN multilateral treaty defines who is a refugee, and sets out their rights and the responsibilities of nations that grant asylum. Its cornerstone is the principle of non-refoulement, which forbids any state from returning those seeking refugee status to a country where they would be at risk of persecution. The principle of non-refoulement has been elevated to the level of customary international law, meaning that in theory, all states are bound by it, regardless of whether they are signatories to the 1951 Convention.
The 1951 Convention also exhorts states to refrain from penalizing refugees for "illegal entry or presence" in their territories, provided they present themselves to the authorities without delay and show "good cause" for their illegal entry or presence. This particular provision acknowledges that particular circumstances that sometimes compel refugees to seek safety and leaves it up to individual states to decide how they will address refugee admission (for instance, how to interpret "delay" or "good cause").
Considering that the 1951 Convention already exists, why is there a need for a Global Compact on Refugees? The answer lies, in part, in the reality lived by today's refugees: increasing numbers of refugees live in what is termed a "protracted refugee situation," and the majority of the world's refugees (over 80%) reside in developing host countries, subject to legal, social, and economic insecurity.
This is the direct result of policies by countries of the global north, such as stringent visa requirements, preventing refugees from entering areas of the state's jurisdiction to avoid activation of international obligations, burden-shifting agreements (bilateral or multilateral) that transfer refugees to "safe third countries," stricter and narrow interpretations of the refugee definition, and many others. The net effect of these policies is that refugees languish for years or even decades in the first countries they arrive in, most often impoverished ones unable to integrate them.
The Global Compact on Refugees tries to close the gap between the ever-growing needs of refugees and international actions to accommodate them. It repeatedly highlights the importance of "predictable and equitable burden and responsibility sharing." It says its objectives are to ease pressure on host countries, enhance refugee self-reliance, support conditions in the country of origin for a safe return, and expand access to "third-country solutions' — i.e. resettlement elsewhere, often to Europe or the United States.
The current number of migrants in the world is estimated at 258 million — 3.3% of the world population.
All but the last of these objectives are meant to keep refugees away from global north countries. And on the last, global trends have been toward reducing access to third countries. For instance, the United States has traditionally been the largest resettlement country. In the last fiscal year, however, it admitted the lowest number of refugees in 40 years. Many of the countries in the EU have also responded to the 2015 crisis by shutting their doors, or at least seriously restricting entry.
Even if the Global Refugee Compact talks of responsibility sharing and increasing resettlement to third countries, it is not binding. Countries can determine the extent to which they will participate. If some choose to throw more money at UNHCR programs aimed at keeping refugees in host countries and away from their borders, no one can force them to do otherwise. And when it comes to migrants, who are seen in destination countries as having left their homelands voluntarily looking for better economic prospects, rather than fleeing war or persecution like refugees, there is even more resistance.
A UNHCR camp in Baharka, Iraq — Photo: Simong43
Like the Refugee Compact, the compact on migrants is not binding and repeatedly states that it is not meant to infringe on state sovereignty. So, what is the significance of a non-binding Migration Compact?
Some have argued that the mere fact that 164 states could come together to work on such a compact is an achievement in and of itself, considering that unlike refugees, there has generally been very little consensus internationally over how to even define a migrant. It has also been pointed out that the compact should be celebrated for including language about migrants that is positive, that acknowledges the resourcefulness of migrants and that sees migration as an opportunity, and not solely a drain or cost.
The compact is also significant for acknowledging climate change as a driver of migration. The reality is that climate change and its effects (food insecurity, for instance) are predicted to be a significant force of displacement. However, the existing legal framework that addresses forced displacement, i.e. the 1951 Convention, does not address this. The Migration Compact does not do much beyond acknowledging climate change as a factor, but some say that it is a start.
The compact lays out a number of objectives, including enhancing "availability and flexibility of pathways for regular migration" and strengthening international cooperation "for safe, orderly and regular migration." These aspirational provisions — particularly those addressing the need to create more pathways for regular migration — may be laudable, but it remains to be seen whether the measures to actually implement them are coming.
The compact does call for a Review Forum, where every four years, member states will discuss their progress at the local, national, regional and global levels. But with no enforcement mechanism, there is no guarantee that actions will be taken. Considering that the strongest objections to the compact came from states concerned about ceding state sovereignty and that the compact repeatedly reaffirms the right of states to determine their national migration policy, to govern migration within their jurisdiction, and to distinguish between regular and irregular migration status, one must not rush to assume that there will be seismic shifts as a result.
By way of comparison, it is worth remembering that the International Covenant on the Protection of the Rights of All Migrant Workers and their Families, which only entered into force in 2003 after meeting the threshold of 20 ratifying states, has not been ratified by a single migrant-receiving state.
With no enforcement mechanism, there is no guarantee that actions will be taken.
What is clear is that the destination countries of the global north have not yet gotten on board with the motivating principle behind the compact — that there needs to be an international framework for migrants just as there is for refugees. There is a basic misrepresentation of migrants: While refugees are seen as "deserving" of protection for having no choice but to flee, migrants are seen as having made a choice. But it is important to understand that poverty, endemic corruption and lack of economic prospects in their countries of origin can be very compelling factors in pushing migration. And often, these conditions are partly rooted in political and economic policies supported by the global north.
And as long as these policies persist, migration will continue. According to the IOM, the current number of migrants in the world is estimated at 258 million — roughly 3.3% of the world population. There is little evidence to suggest that the number will decrease. Even if irregular crossings into the EU have decreased, as past experience shows, migrants will find other routes and other ways of reaching their destination.
There is no question that the debates surrounding migration will continue to polarize and divide countries of the global north. Until the situation is addressed comprehensively, the Global Compact will be hamstrung in its aim of finding a system that truly respects the rights and represents the interests of migrants.