Migration governance is undergoing a process of norm-creation. The aim is to establish two international compacts: one on migration and another on refugees.
This work began with the New York Declaration on Refugees and Migrants, adopted in September 2016 by UN members, who at the first global conference on migration began a process for the adoption of the two compacts in 2018 - the Compact on Safe, Orderly and Regular Migration being state-led, and the Compact on Refugees being drafted by the UNHCR for later adoption by states.
The processes are ongoing but have been dealt a blow by the withdrawal of the US from the Compact on Migration, as it mistakenly decided that a global issue is better treated unilaterally.
Even though the New York Declaration combines the topics of refugees and migrants (with some commitments applying to both and others exclusively to refugees or to migrants), the compacts are set to be two separate documents.
Besides deciding on the normative content, discussions on the juridical nature of the documents are also taking place. As such, it is relevant to highlight an aspect that is receiving little attention, but which affects both the structure and content of the compacts: the need for an explicit dialogue between the two documents.
The compacts are twin initiatives and tackle different aspects of the same phenomenon: human mobility. They should acknowledge their common ground and the fact that they will generate intersections both in terms of themes and of protection needs. This will guarantee that migration governance has an enhanced basis to protect both refugees and other migrants.
This is not to say that refugees should not be granted special and distinct protection. They have a specific international regime of protection (because of the 1951 Convention, its 1967 Protocol and the activities of UNHCR) - with international obligations to States - and particular needs of protection. The Compact on Refugees should, therefore, build on these and ascertain even more protection. There is no denying that refugees are forced migrants (albeit with special status and circumstances) and that there are intersecting topics in the governance of both general migration and the protection of refugees, such as the issues of mixed migration flows, human trafficking and smuggling, the protection of Internally Displaced Persons (IDPs) and their possible connection to refugeehood, and the need for legal pathways for migration.
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If the political choice is to completely separate the compacts both regimes of protection might end up losing.
This separation might move us away from the factual reality that both (voluntary or forced) migrants and refugees are persons on the move and have actual consequences in protection. For instance, states might adopt restrictive measures, such as push-backs and other violations of non-refoulement, that apply “only to migrants” but that, in practice, also affect refugees who might be using the same channels as migrants to access safe territories. Moreover, as the objective situation in the country of origin or residency is paramount in turning a person into a refugee, there is a need to access the requests for refugee status and it is not possible to state a priori who is a migrant and who is a refugee. In this sense, some shared aspects of migration governance need to be in place, even to guarantee the specific protection that refugees are entitled to.
In the past, separating twin initiatives has been used as a strategy when political and ideological scenarios failed to offer alternatives – as in the case of the International Covenants on Human Rights. Nevertheless, this might lead to unwanted results, such as the diminishment of the documents’ effectiveness and comprehensiveness. Providing intersections between the two compacts could, in fact, enhance the protection of all migrants, including refugees.
These intersections could focus on highlighting the main points of convergence between the two regimes and the fact that there should be a dialogue in migration governance between the protection regimes.
Regarding the structure, the dialogue might adopt several forms, including the adoption of:
- Common articles – with the compacts adopting the same strategy of the International Covenants on Human Rights and of the Geneva Conventions on Humanitarian Law by sharing a common article (or articles); or
- A common preamble – with the compacts following the example of the New York Declaration and adopting a common basis, in their case expressed as a common preamble, that emphasizes the links in refugees and other migrants’ protection but also highlights the relevant differences that are in play; or
- Common parts of the preamble – with the compacts adopting a few common paragraphs in their preambles, highlighting the convergence of some topics, principles and aims.
Regarding the content, a key component of the dialogue should be the incorporation of a human rights logic to all migration governance. As all migrants are human beings they are entitled to international human rights and this should guide their protection and treatment by states, as well as the mandate of any organization that (could) deal with migrants or refugees’ protection.
A second component should be the recognition of durable solutions as integral parts of protection. Durable solutions are not stated as rights thus far, which diminishes their implementation as they are still strongly dependent on states’ will. They affect both traditional protection and integration, consequently having effects on both migrants and host societies.
A third content-related component is the need for legal pathways for admission to host countries and permission to stay, which would also benefit migration management.
The compacts are opportunities for the development of migration governance and, especially, the protection of refugees and other migrants. The international community should make the most of this opportunity. Creating intersections between the compacts is a step in the right direction, as this is a proposal that focuses on a consistent internal logic for migration governance and on the most comprehensive protection of all human beings that are migrating.