Much of the focus on last week’s UN Summit on Refugees and Migrants has been on how it will or won’t change things for refugees, but it is time to take stock of its outcomes for migrants.
Through the summit’s New York Declaration, states committed themselves to negotiating the Global Compact on Safe, Orderly and Regular Migration over the next two years. But what will the compact process do for migrants and for the protection of their rights? And how might the compact negotiations be affected by that other summit outcome – the new legal and operational agreement that makes the International Organization for Migration a “related organization” of the UN?
These remain open questions. Behind the consensus agreement to launch a compact negotiation process lurks substantial disagreement among states over the issues it should address and how best to do so. As a result, the stated aims of the global compact, referred to in the New York Declaration, are ambitious and wide-ranging, but they are also vague and lacking in references to implementation. For example, it states that the migration compact will address international migration “in all its dimensions” and “deal with all aspects of international migration, including the humanitarian, developmental, human rights-related and other aspects of migration”.
This is a tall order. In reality, nearly all aspects of migration are “human rights-related”, but achieving protection of migrants’ human rights in practice has been an enduring challenge that UN agencies, together with migrant rights’ advocates, have been working for decades to achieve. The challenge is fundamentally related to the fact that – although states have an obligation under the Universal Declaration of Human Rights to protect the fundamental human rights of all people in their territory without discrimination – cross-border mobility is not considered a human right. International migrants are therefore more vulnerable to abuses and have less access to protection and judicial remedy than citizens do.
But migration comes in many forms, and the measures needed to ensure migrants’ rights depend on their circumstances. While migrants travelling irregularly or working irregularly face particular risks, even migrants with legal status are vulnerable. The emphasis on migration being “safe, orderly and regular” may be enough to ensure that states benefit from migration, but it is not sufficient to protect even regular labour migrants, for example, from exploitation at the hands of unscrupulous recruiters.
While states committed in New York to “fully protect the human rights of all refugees and migrants, regardless of status”, the declaration reveals a reluctance to act collectively to ensure respect for all migrants’ rights in practice. For example, it stops short of committing to end the immigration detention of children. When states say they will protect the rights of all migrants, what it should mean is that they will develop a framework to incorporate international human rights law into their own national law, policy and practice, in a way that explicitly addresses its applicability to migrants.
The global migration compact process represents the latest in a series of efforts over more than a decade to make global governance of migration more comprehensive and effective. Since the early 2000s, there has been increasing interest in international cooperation and governance of migration, but that interest has always pulled in two different directions with fundamentally different priorities. One camp is mainly interested in the protection of migrants’ human rights, including labour rights, and supporting national-level implementation of international standards. The other is focused on “managing” migration to serve states’ interests such as the labour needs of destination states and the benefits of migrants’ remittances for states of origin. In recent years, the perception of a growing migration “crisis” has increased support for the management approach, including the use of deterrence policies and increasingly securitized and externalized borders in several regions.
More broadly, responsibility for migration governance – including the global compact negotiations – may be shifting away from UN agencies with mandates focused on human rights and labour standards, and toward the International Organization for Migration, which lacks any such mandate, even in its new UN role. IOM, together with the UN Department of Economic and Statistical Affairs, will facilitate UN member states’ upcoming discussions on the ground rules, or “modalities”, for the global compact negotiations, and may end up with the same role in negotiations for the compact itself.
IOM will be acting as the de facto “UN migration agency”, and it will be assumed to be acting under the UN Charter. In reality, IOM’s new status as a related organization of the UN means it is under no obligation to support the UN-based framework of human rights or labour standards, but rather can take its lead from the states that contract for its services. IOM will gain significant influence over UN policy through its new seat on the UN Chief Executives Board for Coordination (CEB) and in the United Nations Development Group (UNDG).
It is difficult to see how IOM's new role and influence – and the influence of particular states within IOM – won’t compromise the rights-based mandates and work of agencies like OHCHR (the UN human rights agency) and the International Labour Organization, whose capacities have already been reduced in recent years. Migrant rights groups fear that international human rights standards as the basis for protecting migrants will be replaced by voluntary, non-binding guidelines, and what IOM Director General William Swing has called “practical protection”, anchored in the migration management approach some member states prefer. But if states and other stakeholders really want a global compact to adequately address international migration “in all its dimensions”, they must keep within the UN Charter and standards.