Author: Dr. Nicholas R. Micinski
Dossier: Can we govern migration better?
Guest-editor: Elaine Lebon-McGregor
For decades, migration governance was relegated to the backwaters of the UN system with informal committees and working groups rarely grabbing the public’s attention. However, the 2016 New York Declaration for Refugees and Migrants, followed by the 2018 Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) moved migration governance to center stage.
In this article, I describe what the Global Compacts are and how they fit with wider migration governance. This is based on my research and fieldwork in my recent book, UN Global Compacts: Governing Migrants and Refugees (Routledge, 2021). While migration governance remains largely fractured, I show how states negotiated the Global Compacts as non-binding frameworks that bundle and reaffirm rights, while also establishing a path for future global migration governance.
What is Migration Governance?
Migration governance encompasses all international norms, principles, laws, and rules that influence how states govern the movement of people. This ranges from binding international treaties (1951 Refugee Convention) to bilateral agreements (readmission agreements), and from best practices (Comprehensive Refugee Response Framework) to the rules within international organizations (UNHCR ExCom). In contrast to other areas of governance, migration has not had a unified international regime that governs all policy areas of migration such as labor migration, asylum, internal displacement, or student, leisure, and business travel. Instead, states agreed to separate agreements (like the refugee regime or the International Civil Aviation Organization passport standards) to govern individual policy areas. This has resulted in a generally disparate and fractured migration governance regime.
How do the Global Compacts fit?
The New York Declaration kicked off a two-year negotiation process whereby states met for at least 36 meetings—thematic sessions, regional consultations, multi-stakeholder hearings, civil society consultations, and intergovernmental negotiations—all building to the adoption of the two Compacts at the end of 2018.
Non-binding Cooperative Frameworks
The Global Compacts are emphatically not legally binding documents and say as such. For example, the GCM states it is “a non-legally binding cooperative framework,” while the GCR explains: “The global compact is not legally binding.” While civil society groups might have hoped for a binding treaty, states were clear from the beginning that the Global Compacts were voluntary with no binding commitments or enforcement mechanisms. This relatively conservative strategy aimed to gain broad agreement amongst the majority of states and begin to socialize states to cooperate over migration within the UN system. In part, states learned from the failure of the 1990 migrant workers convention, which set relatively high legally binding standards but was only ratified by 55 states and not ratified by any major immigration countries in the Global North. Instead, negotiators hoped that the informal, voluntary, and non-binding nature of the Global Compacts could overcome states’ hesitation to sign international agreements on migration. Louise Arbour, the Special Representative for International Migration, affirmed the non-binding nature of the compact:
It is not correct to suggest that this Compact imposes obligations on Member States and infringes on their sovereignty. It does nothing of the sort, and it is not binding, as a treaty would be. It does not create a right to migrate. Under international human rights law citizens of a country have the right to enter, stay and leave their country but they don’t have a right to go anywhere else unless they seek asylum, or are authorized by another country to enter its territory.
The compacts are cooperative frameworks because they outline different ways of working together with states over different challenges of migration. The GCM includes 23 objectives followed by suggested actions for states. Confusingly, each objective begins “We commit…” but these are not legal commitments—rather political commitments that signal the political will to achieve the objectives. Similarly, the GCR includes other ways of rallying support for refugees and coordinating actions by states. For example, the GCR includes support for the Comprehensive Refugee Response Framework, which is a list of best practices that are suggested—and not binding—in response to a displacement event.
Both compacts were adopted through UN General Assembly resolutions, which are not usually legally binding; however, they can require the UN system to follow them. In addition, most states do not believe soft law like the compacts are domestically enforceable, but some domestic and international courts could use the compacts to guide interpretation and the intent of states.
Bundled and Reaffirmed Rights
Both compacts bring together disperse agreements and confirm state support for the migrant and refugee rights. The GCR reaffirms the rights of refugees embedded in the 1951 convention and 1967 protocol, the Sustainable Development Goals, the CRRF, and other documents, while the GCM reaffirms the rights of migrants embedded in human rights treaties, and the 2000 protocols on trafficking and smuggling. Bundling disperse agreements together can have the effect of raising their profile in order to get both the attention of the media and those implementing on the ground. By bundling rights in the compacts, the UN put migration and displacement higher on the international agenda and pushed for increased support, which would have been much harder as separate initiatives. One risk of bundling rights in the compacts was that states could use the negotiations to lower their commitments to refugees or migrants. The GCM pushes back on this idea, stating that states are committed to “the principles of non-regression and non-discrimination,” and thus cannot rollback migrant rights.
States also used the compacts to link disperse issues that may not be widely supported—however most states found things that were in their interest in the documents. For example, states in the Global South wanted more protection for migrant workers, while states in the Global North wanted to cooperate on deportations. States used issue-linking to build trust and keep all states engaged in the negotiation process.
Architecture of Global Migration Governance
Finally, the Global Compacts establish the spaces and modalities through which states will regularly meet, negotiate, and commit to future governance of migration. The refugee compact set the Global Refugee Forum to be held every four years with the first held in 2019. The GCM created International Migration Review Forum, first to be held in 2022 and then every four years. These forums allow states to plan for repeated interaction and negotiations, to develop expertise over time, and to build relationships between actors. While both forums remain voluntary and the commitments are non-binding, the forums will be spaces for socialization in which states develop new ways of discussing migration, share best practices, and—in theory—could incubate binding agreements in the future.
Both compacts also created new institutions that work to coordinate different actors working on migration governance and to build counties’ migration state capacity. The UN Network on Migration replaced the Global Migration Group as the main body coordinating migration within the UN system. IOM was appointed the coordinator of the network and the membership consists of 39 UN entities. The compacts also created several institutions to build state capacity: the refugee support platforms, the Asylum Capacity Support Group, the migration capacity building mechanism, and the Migration Multi-Partner Trust Fund. Each of these new spaces and institutions are part of wider architecture that will build the global governance of migration over the next 20 or 30 years.
It is clear that the Global Compacts are central to migration governance. The compacts are non-binding cooperative frameworks that share best practices and connect states over common issues. The compacts bundle and reaffirm the rights of migrants and refugees without establishing new rights. This strategy builds trust and links diverse issues so most states could find something they like in the compacts. Finally, the compacts lay out a path for negotiating the future of migration governance by creating new forums and institutions. These regular meetings (every 4 years or on-going work plans) have the potential to develop new norms and to socialize states in how to cooperate better on migration governance. While it is still early days, the implementation will be key to the achieving the high aims of the Global Compacts.
Nicholas R. Micinski is Libra Assistant Professor of Political Science and International Affairs at the University of Maine.
Global Compact for Migration (GCM), para. 15; Global Compact on Refugees (GCR), para. 4.
Louise Arbour, “Statement by Louise Arbour, Special Representative of the Secretary-General for International Migration,” 11 December 2018, http://www. un.org/en/conf/migration/assets/pdf/Press- Briefing-11.12.2018-SRSG-Arbour.pdf.