While headlines on refugees and migrants in recent months have focused understandably on U.S. border walls and extreme detention practices, a group of dedicated individuals and organizations has been working to finalize the most significant international documents on migration and refugees in 20 years.
The Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration were completed this summer and will be considered for adoption by state parties at different United Nations gatherings later this year. The United States withdrew from the migration compact in December last year, an ostentatious move since both documents are non-binding. In announcing the decision, the U.S. Mission to the U.N. said the compact contained provisions that are “inconsistent with U.S. immigration and refugee policies and the Trump administration’s immigration principles.” Both documents also contain significant weaknesses, as outlined below.
But the compacts emerge at a time of great urgency, and they provide a route for the crucial discussions that will still be needed to devise more durable solutions. They commit states to certain principles aimed at improving conditions for refugees and other migrants; helping them become self-sufficient or return to their home countries safely; and sharing the burden of assistance more fairly.
The agreements call on states to examine and take action on the causes of migration, and to provide higher-quality data about trends to address the problem of angry public discourse propelled by myths and misinformation. Overall, the compacts shift the discussion about migration and refugees from an almost exclusive focus on emergency aid to longer-term analysis of – and hopefully action on — crucial issues like the underlying reasons people flee in the first place.
At the same time, the compacts reflect the reality that political leaders the world over have linked border crossing with criminality and terrorism, and don’t have the appetite to develop strong legal protections or ensure real dignity for people who are forcibly displaced or otherwise vulnerable migrants. The politicized rhetoric has led to a sense of crisis and invasion, even though the vast majority of people who have migrated are living and working legally in their host countries. Furthermore, of the 68.5 million people currently displaced globally, about 40 million remain within their own countries, according to recent estimates. This means that, contrary to common assumptions, the majority of people who have had to flee home have not crossed an international border.
These internally displaced people fall into an administrative gap internationally and are not covered by either of the new global compacts. The agreements do apply to those fleeing or displaced people who manage to cross an international border, who are in immediate legal peril, and face exploitation, enslavement, detention, and threats to their lives as they seek safe places to live and work. Since 2000, more than 60,000 people have perished while fleeing or migrating, and these are only the recorded deaths. Many more are estimated to have died without leaving a trace.
Fear Maintains Parallel Structures
The two new compacts are anchored by different commitments, legal rights, and implementing bodies. This is not ideal as it hinders efficient and global solutions. But trying to merge organizational structures and responsibilities in the current climate might damage the implementation of existing conventions. So the office of the U.N. High Commissioner for Refugees (UNHCR) will continue to manage refugee processes and will undertake efforts to implement the terms of the Compact on Refugees, while the U.N.-related International Organization for Migration (IOM), along with the U.N. Special Representative for International Migration, will promote the objectives and commitments of the Compact on Migration among the signatory states.
International organizations, government officials, NGOs, activists, and scholars were all involved in developing the documents, but worked through separate, parallel processes to craft the two texts. That’s despite the fact that patterns of human movement today increasingly consist of “mixed migration” that includes both those who flee in well-founded fear for their lives (and can be legally defined as “refugees” entitled to seek asylum), and those who flee for multiple reasons but are no less desperately seeking better living conditions with more of the kinds of freedoms that the U.S. and its western partners have espoused.
The parallel processes reflect the intricate politics of trying to retain the significant protections guaranteed in the 1951 Refugee Convention, especially the principle of non-refoulement, which requires its 145 state parties to refrain from returning asylum-seekers to countries where their lives or freedom are imperiled. The clarity of definitions in the Refugee Convention, coupled with the legal obligations it carries as a treaty, entitle refugees to a kind of legal status in host countries that isn’t required to be granted to vulnerable and displaced migrants. Still, advocacy groups have criticized the Compact on Refugees as lacking in monitoring and accountability mechanisms.
So clearly, the two compacts will not solve hard problems. But it is a positive development for states to be moving towards collectively agreed language on rights and protections for displaced and migrant people, support for host communities, and collective obligations of states to provide resources and share responsibility. While the compacts lack serious enforcement mechanisms, the documents will maintain attention on progress – or the lack thereof – through regular conferences, reports, update meetings, and global forums.
Need for Honest Conversations
Long-term thinking and collaboration are still needed to create lasting solutions to current violations and community stresses. The conversation must shift from criminalizing migration to equitably sharing responsibility globally. International organizations, state officials, and activists need to confront the root causes of forcible displacement and include honest remedies in the conversation to hold states accountable for addressing the violence, persecution, and lack of opportunity that drive people to leave their homes.
Although current U.S. and European politics makes this seem increasingly unlikely, the challenges posed by millions of vulnerable people seeking safety are not beyond our capacity to solve, if they are addressed collectively, honestly, and with recognition of how causes and effects are connected globally.
And states do not have to undertake the solutions alone. International organizations, NGOs, and community-based organizations have become a more critical component of realizing and implementing international law and providing access to justice, and they have been very active on these compacts. They will continue to play a critical role in helping to interpret the terms of the compacts, in providing legal and basic services to migrants and refugees, and in holding states accountable through evidence-based reporting and in-depth research on evolving conditions.
Non-governmental entities also can maintain advocacy and awareness of the vulnerable communities who have been left out of the global compacts: the internally displaced, and those who are persecuted on the basis of sexual orientation or gender identity (the LGBTQI community). The latter are frequently denied refugee protection, and often suffer from discrimination and denial of services based on their identity.
The often-overwhelming obstacles faced by refugees and migrants, and the challenges confronting states of origin, transit, and destination are daunting. But global migration and forced displacement are not going away – keeping human movement orderly and manageable will require sustained attention and cooperation at all levels.
The views expressed are the author’s own. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and should not be construed as representing the policy of the American Bar Association.