Migration (or) How putting up walls does not make sense

Migration has been a key issue in international law. The Syrian crisis has only catalyzed the influx of migrants. With that being the reality, it is necessary that certain policy changes are made at the domestic and international level, to better protect and include migrants into the community.

This article will focus in the international level policy change being undertaken by the UN. It will explain the main features of the UN Global Pact for Migration, it’s drawbacks, criticisms, legal validity and how it may be useful in the international legal system.

Migration Now

Migration essentially means the movement of people from one place to another, either permanently or temporarily. The International Office of Migration (IOM) defines Migrants as:

“Any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is.”

Migration affects the economy, development, safety and security. Furthermore, due to the increased inter-State interaction, globalization of migration is adding up. In a world where globalization is not merely an idealistic future, it is becoming necessary to recognize the challenges of migration – for the benefit of the migrants as well as the host states.

Global Compact for Migration
Global Compact for Migration

Global Compact for Migration

With that in mind, Migration was recognized as a global reality by States and some consensus entered as to how the world deals with it. Hence efforts were made since April 2017 to come up with a viable solution. As a result of 18 months of preparatory process along with six rounds of intergovernmental negotiations, Mr. Juan José Gómez Camacho (Ambassador and Permanent Representation of Mexico to the UN) and Mr. Jürg Lauber (Ambassador and Permanent Representation of Switzerland to the UN), presented the Global Compact for Safe, Orderly and Regular Migration.It is a non-binding agreement, containing 4 parts. Anne Peters succinctly explains these 4 parts of the compact as follows:

The Compact consists of four parts. Following the preamble, the first part contains, “Vision and Guiding Principles”. The second part, “Objectives and Commitments” contains 23 objectives, proceeded by a part on “Implementation” and the final section “Follow-up and Review”. The Compact purports to set out “a common understanding, shared responsibilities and unity of purpose regarding migration” (para. 9). The purpose is mainly to secure that migration “works for all” (para. 13).

The 23 objectives enshrined in the second part reaffirm the New York Declaration for Refugees and Migrants. The compact:

  • aims to mitigate the adverse drivers and structural factors that hinder people from building and maintaining sustainable livelihoods in their countries of origin;
  • intends to reduce the risks and vulnerabilities migrants face at different stages of migration by respecting, protecting and fulfilling their human rights and providing them with care and assistance;
  • seeks to address the legitimate concerns of states and communities, while recognizing that societies are undergoing demographic, economic, social and environmental changes at different scales that may have implications for and result from migration;
  • strives to create conducive conditions that enable all migrants to enrich our societies through their human, economic and social capacities, and thus facilitate their contributions to sustainable development at the local, national, regional and global levels.

Acceptance by States

The text of the pact was finalized on 13 July, 2018. It was approved by all the 193 Members except USA. On 10th December, only 164 countries formally adopted the GCM at an intergovernmental conference in Marrakech, Morocco. Of the countries that did not sign were Hungary, Austria, Poland, Italy, Slovakia, Chile and Australia.

Criticism

Several reasons have been cited for the opposition towards the GCM. Three stand out as very important to identify and address the backlash:

  1. GCM interferes with the Sovereignty of the States

The opposition to GCM in Europe was lead by Austrian chancellor, Sebastian Kurtz. He proclaimed that agreeing to the GCM would reduce Austria’s sovereignty in deciding who enters the State. This feeling was mirrored by several other nations as well. In fact, the GCM is a voluntary agreement without a binding effect on the States. Hence the question of interference with sovereignty does not arise.

2. Migrants or Refugees?

Another misconception which is giving rise to strong backlash against the GCM is the confusion between migrants and refugees. Naysayers believe that the GCM will group together both these categories, thereby ignoring the different treatment and levels of protection that needs to be meted out. But this is a flawed argument as the Global Compact only refers to migrants. After the New York Declaration, two separate global compacts are being worked and researched upon, one being the GCM and the other is the Global Compact on Refugees.

  • 3. Misused by Right Wing Politics

  • The GCM is leading to a political debate in Europe and the rest of the world. Right wing groups are using this as a focal point to spread misinformation and rumors about the reach and validity of the GCM. This only spells trouble as GCM has no legal basis and is in fact a voluntary document.
  • Can it be a Legal Document?

  • The GCM is a non-binding voluntary document. Legally, it has no teeth. It cannot be used to ensure that there is compliance from states. It is a recognition of some of the rights that the states can uphold with regard to migrants. But it is a first step in recognizing these rights.
  • There are three ways in which this document could become legally valid,
    • Either by the adoption of a binding treaty based on the Global Compact
      Or by the adoption of the GCM’s principles as customary international law through State Practice and Opinio Juris.
      Or, it could be termed as soft law, used to fill in the gaps between the existing binding law.
  • Currently, the most one can do is read up and be aware of the GCM as is, without a political bias and then go ahead with the arguments, legal or otherwise. Migration is a reality that cannot be denied. Putting up walls and using nationalistic sentiments to create divide does not address the issue, changes at the policy level do. UN Global Compact for Migration has started a dialogue to address these issues. Instead of criticizing the GCM as a flawed document, efforts must be made to see it as a first step in an increasingly complex problem which also needs increasingly complex solutions.
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