March 1, 2019

Diplomacy of the Migration Compact

Eesti Meedia / Scanpix
A demonstration in Tallinn against the migration compact, December 2018. The compact has had a negative reception from the Estonian public.
A demonstration in Tallinn against the migration compact, December 2018. The compact has had a negative reception from the Estonian public.

Can the compact mobilise the international community for further dialogue?

The United Nations Global Compact for Migration1 became the centre of attention in the late autumn of 2018. Although a number of opinions on and analyses of the potential effects of the compact have been published, less has been said about the process of its creation and backdrop. Here I will try to describe the creation of the compact, the negotiating process, the nature of it and, finally, its possible future.

The determination to create the compact was due to the European migration crisis. In 2015, 1.82 million migrants spontaneously entered Europe, and 3,371 died attempting to cross the Mediterranean. However, this phenomenon was not exclusive to Europe. Irregular and abundant migration occurred, for example, in the Bay of Bengal in Asia, the unstable Sahel region of Africa, the US-Mexico border and elsewhere around the world. At that time, there was a general consensus that greater international efforts were needed to regulate migration. Even today’s most ferocious critics of the Global Compact did not question this. For example, in 2015 the Hungarian prime minister, Viktor Orbán, called on the UN to negotiate a global quota system and wanted to see migration that would be “orderly, safe, regulated and responsible”.2 The US was already trying to achieve a more co-operative relationship on migration with several Central American countries, well before the European crisis. To this end, US Vice President Joe Biden visited the region and there were top-level visits in the opposite direction to the White House. “The international community must act now to stop this trend,” said William Lacy Swing, Director-General of the International Organization for Migration, in January 2016, commenting on the growing number of migrant fatalities.3 The UN became the natural focal point of the diplomatic effort and the US president became its prominent spokesperson.

In September 2016, a summit on migration and refugees was held in New York under the auspices of the UN, complemented by a high-level meeting convened by President Barack Obama. “I am proud to announce that the United States will continue our leadership role,” he declared. “I believe that this summit must be the beginning of a new global movement where everyone does more,” he added.4 The New York summit adopted a declaration that began with the recognition that “since earliest times, humanity has been on the move”.5 The declaration included a decision to create a global compact on migration.

Although the UN migration compact entered the European public debate quite unexpectedly, the issue was not new to the UN. The Global Forum on Migration and Development had been going on for years, together with governments and civil society associations and organisations. The UN’s 2030 Agenda and the Sustainable Development Goals are closely linked to migration issues. The UN General Assembly Resolution entitled “Protection of Migrants” has been there for years and it has been consistently adopted since 1999.6 Several new elements have been added,7 but countries have unanimously supported it. An example of the opposite is the 1990 International Convention on the Protection of All Migrant Workers and Members of Their Families, which has remained one of the least-favoured conventions, to which the only European countries to accede are Albania and—for understandable reasons—Turkey.8 Most countries do not want to take upon themselves legally binding obligations in this particular field.

The handling of the migration issue in the UN has remained largely unchanged over the years: the primacy of human rights, the fight against racism and xenophobia, the fight against human trafficking, recognition of the positive contribution of immigrants, and calls for a non-discriminatory immigration policy. Less attention has been paid to controlling migration or its root causes. The compact had to be born as a result of earlier UN documents and best practices. This means the goal was to mobilise and draw attention to the issue, but not necessarily to create anything new.

It was clear from the start that the status of the compact would resemble that of the UN General Assembly’s resolutions: they are not binding on member states, even those who voted for them. Only resolutions that determine the UN’s own institutional structure, administrative activity and budget are mandatory—that is, those that are indispensable for the day-to-day running of the organisation.9

In 2017, preparations were made to negotiate the compact. UN Secretary-General António Guterres nominated a former UN High Commissioner for Human Rights, Louise Arbour, as his new Special Representative for migration, who became coordinator of the subsequent consultations. The president of the General Assembly, in turn, nominated the Mexican and Swiss ambassadors to facilitate the negotiations at the UN.

Between May and November 2017, six thematic consultations were held in Geneva, Vienna and New York: human rights, factors motivating migration, international cooperation and migration management, migration and development, protecting migrants against smuggling and trafficking, and legal and illegal migration. Non-governmental organisations and civil society organisations who submitted proposals were also involved in the preparatory work. For example, MADE—a network linking migration activists—submitted an ambitious input,10 which some critics of the compact later began to describe misleadingly as the “implementing act” of the compact.

In December 2017, the Secretary-General published his report on migration.11 Based on inputs from the consultations, the initial text, so-called zero draft of the compact was prepared.

For the potential destination countries, the Guterres report described migration in far too positive a light. A number of important issues, such as tackling the root causes and effective cooperation over the return of illegal migrants, were not sufficiently reflected, whereas the issue return was described in a rather negative perspective. European criticism was immediately brought to the attention of Special Represenative Arbour. It was expected to be taken into account in the drafting process, but this basically did not happen. At this point, it is important to note that the US had withdrawn from the entire process well before the negotiations began, as  the new administration was not prepared to maintain the policy of the previous one, especially on the polarising immigration issue.

The draft text was submitted to delegations in mid-February 2018, followed by six rounds of negotiations in New York until July. At the UN, negotiations involving 193 states can be rather complicated exercise. The zero draft itself was quite problematic. At times it gave the impression that it interfered too much with states’ sovereign powers. For example, it implied that illegal border crossing should be completely decriminalised, or called for allowing multiple nationality. The draft’s authors had clearly taken on board several suggestions of vocal activists, obviously attempting to prevent their criticism. However, also for them the zero draft was not completely satisfactory: the list of priorities seemed too long, the objectives too vague, the general narrative was unclear; the non-binding legal status of the document was too weak; relationship between migration and development not adequately reflected. However, as the document had to be created according to the UN’s usual working methods, i.e. through intergovernmental negotiations, the most problematic elements for governments would be left out of the final text anyway.12

As usual, the countries of origin highlighted mostly the positive aspects of migration and the need to facilitate legal migration and access to the labour markets of wealthier countries, while potential destination countries emphasised the need to curb uncontrolled migration and cooperate on readmission. It was also necessary for the compact to distinguish clearly between legal migrants and illegal, and to separate it from the topic of refugees fleeing war and persecution. A separate debate took place on whether the text should also include migrants’ responsibilities towards the host country, such as respecting the local laws or providing true information about his or her identity.

Austria, which then held the rotating EU presidency, represented 27 EU countries as Hungary withdrew from the Union’s joint action in the very early stages. However, the Hungarian foreign minister was present at the negotiations, and declared complete failure of the EU’s migration policy, and the same for the UN.13 It did not sound too constructive, but at least it was consistent. It gave the impression that other countries that had withdrawn after the end of the negotiations did so not so much due to the principle, but for other reasons.

In order to create a platform for future international dialogue on migration —and hence a tool, not an end in itself—the negotiators gradually moved towards a common denominator in order to agree a final text. The countries of origin, which from the outset expressed strong opposition over the issue of readmission, finally abandoned this particular red line in the name of compromise, so the need for readmission agreements became part of the final text. In addition, the objectives of reducing illegal migration, protecting borders, combating human trafficking and so on found their place in the final text. At the request of mainly China and Russia, strong clauses on sovereignty were added. Clearly, neither of these two saw the compact as a threat to their national sovereignty; rather, they wanted to position themselves clearly on human rights as a subjective approach of the compact.14

Despite criticism, the EU has recently made measurable progress in the area of migration. Thanks to the agreement reached between the EU and Turkey in March 2016 and efforts on the Libyan coast, the scale of the migration flows has now been taken back under control. The number of irregular entries into Europe in 2018 fell to pre-crisis levels of around 150,000.15 So, we have come down from the peak of the crisis, although the daily news still feature images from 2015.

Europe’s lasting success requires the resolution of conflicts in the wider Middle East and, more importantly, effective cooperation with Africa. It is positive that, at the EU-AU Summit in Abidjan in November 2017, during the Estonian EU Presidency, a Task Force of the EU, the African Union, the IOM and the UN Refugee Agency was established to deal with migration in the Mediterranean. Recently the EU created its Trust Fund for Africa, and established close cooperation with the IOM to deal with migrants in Libya. Since 2017, with the help of the IOM, more than 30,000 irregular migrants have voluntarily returned to their home countries in Africa and Asia. In the framework of EU-Africa cooperation, it is important to contribute to the development of countries that are the origin of migration. It is imperative that the overall human rights and rule of law situation improves, facilitating better conditions for economic activity and investment in these countries. True, this could all be more specific in the text of the compact, but some aims fell below the lowest common denominator in the UN negotiations. In the longer run, we will have to come back to these, whether in the UN or in direct dialogue with partners. A more elaborate migration cooperation with Africa may be hampered by competition from China, which obviously is in no need to establish any migration-related benchmarks or conditions.

In some respects, the compact takes us a little further than previous discussions in the UN. One innovation is the introduction of the topic of climate change; there is a call to deal with migration movements that may result from “sudden-onset and slow-onset natural disasters, the adverse effects of climate change [and] environmental degradation”.16 There was a dispute over this as there was no willingness to create new categories of migrants. In the end, no new categories were created, but the subject found its way to the document due to the potential effect of climate change on migration, which cannot be denied. However, the question remains as to whether this was the most relevant text or context for this particular issue.

Second, the compact calls for the development of “accessible and expedient procedures to facilitate transitions from one status to another”—in other words, to provide legal status to those who are staying illegally.17 Of course, we cannot create freeways for such transition, in order to avoid possible additional pull factors for irregular migration. However, under the Convention on the Rights of the Child, for example, a country has a duty to provide a child access to medical care and education, which may require legalising his or her status.

Third, victims of human trafficking could be allowed to stay in a country “temporarily or permanently in appropriate cases”.18 This is topical mainly outside Europe because victims of trafficking in Europe can obtain a temporary residence permit for the purpose of participation in criminal proceeding. However, the implementation of such measures should take into account the compact’s overall objective of combating human trafficking.

Fourth, the “faster, safer and cheaper remittances” of money by migrants back to their country of origin should be promoted.19 This point was wish of many developing states, often dependent on the remittances of the migrant workers. According to the World Bank, 450 billion USD was sent as remittances back to developing countries in 2017. Here various policies under the UN happen to contradict each other; efforts to fight financing of terrorism obliges governments to exercise more controls on international money transfers.

Fifth, “open and accessible information points along all relevant migratory routes” should be created, and information should be available “in a language that the person concerned [the migrant] understands”.20 True, ports and airports have information in several languages, but the recommendation is clearly too ambitious to find full application in the near future.

With this, the list is almost done. Other issues, such as calls to ensure the basic human rights of all persons, or the fight against racism and xenophobia, including in the media, are already covered in earlier UN documents, norms or laws.

Now, a few words about the future. As has been said, the compact does not have a separate programme of implementation. All further action is briefly described in the compact’s final section. According to this, the IOM should set up an international network to achieve safe, regular and legal migration, to be implemented in a voluntary manner. In addition, an International Migration Review Forum should be established to become a platform for dialogue, taking place every four years, and convening for the first time in 2022.

It is too early to say how much the compact can mobilise the international community for further dialogue. The organisation of the Review Forum should be agreed this year, but so far no action has been taken. The fact that the US has distanced itself from the endeavour reduces the power of the initiative. The divisive immigration debate in several Western countries may have an impact on the ability of countries to cooperate at the UN. According to the pessimistic scenarios, the migration compact may follow the fate of the Durban Declaration and programme of action on combating racism, adopted in 2001, which has lost much of its initial gloss. From a practical point of view, however, one must agree with the compact’s recognition that migration is indeed a global phenomenon and needs to be tackled on a global scale. And it is certain international discussions will go on, as hundreds of thousands continue to migrate.

Finally, a brief mention of migration debates in Estonia. A 2015 debate was mainly about the European refugee quota and the meaning of solidarity; the actual migration policy was barely discussed. In the recent 2018 debates that fell to the Estonian pre-election period, one side had to argue the non-legally binding character of the compact,21 while another side spoke at length about the imminent risk of uncontrolled mass migration, caused by the same compact.

The results of such a debate are easily measurable. According to a Eurobarometer survey published in December 2018, 33% of French citizens, 38% of Spaniards, 41% of Italians, 42% of Lithuanians, 44% of Greeks and 61% of Maltese saw immigration as the biggest problem facing the EU. Surprisingly, Estonia had the highest result, with 65%.22

It is difficult, if not impossible, to have inclusive and meaningful discussions on ephemeral UN documents when the subject matter is unclear. For a more substantiated discussion on whether or not Estonia’s current immigration policy or international cooperation is satisfactory, we need to better understand the main features of our respective policies, sovereign rights and the actual situation on the ground. A distinction should be made between immigration policy and refugee policy, or a day-to-day social policy. Immigration research and respective statistics require closer attention.23 Fortunately, we still have time because the phenomenon of migration is not going to disappear. As a matter of fact, Europe has today less than a twenty readmission agreements with third countries. For each new one to be signed and properly implemented, we need to reach a consensus with a partner country. We are only at the beginning of a long journey, and shaping positions on international cooperation will be easier if we keep our heads clear at home.

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1 Global Compact for Safe, Regular and Legal Migration (final draft)  https://refugeesmigrants.un.org/sites/default/files/180711_final_draft_0.pdf

2 Statement by HE Mr Viktor Orbán, Prime Minister of Hungary at the High Level Side Event, “Strengthening cooperation on migration and refugee movements in the perspective of the new development agenda”, 30 September 2015

www.un.org/en/development /desa/population/migration/events/ga/2015/docs/statements/HUNGARY.pdf

3 International Organization for Migration, “IOM Counts 3,771 Migrant Fatalities in Mediterranean in 2015”, 5 January 2016,

www.iom.int/news/iom-counts-3771-migrant-fatalitie… -mediterranean-2015

4 The White House, Office of the Press Secretary, Remarks by President Obama at Leaders Summit on Refugees, 20 September 2016 obamawhitehouse.archives.gov/the-press-office/2016…

5 UNGA Resolution 71/1 “New York Declaration for Refugees and Migrants”, 19 September 2016

www.un.org/en/development/desa/population/migratio…

6 UNGA Resolution 54/166 “Protection of migrants”, 24 February 2000 www.un.org/en/ga/search/view_doc.asp? symbol = A/RES/54/166

7 UNGA Resolution 72/179 “Protection of migrants”, 19 December 2017 www.un.org/en/ga/search/view_doc.asp? symbol = A/RES/72/179

8 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

www.ohchr.org/en/professionalinterest/pages/cmw.as…

9 United Nations Legal Yearbook 1986, pp. 274–5. legal.un.org/docs/? path = .. / unjuridicalyearbook / pdfs / english / by_volume / 1986 / chpVI.pdf & lang = E # page = 13

10 MADE (Migration and Development Civil Society Network), “Ten Acts for the Global Compact: A civil society vision for a transformative agenda for human mobility, migration and development”, revised 3 November 2018 www.madenetwork.org/sites/default/files/Now%20%2B%… 20Global% 20Compact-final% 20rev% 203% 20 Nov% 202017% 20% 28002% 29.pdf

11 UNGA A/72/643, “Making migration work for all. Report of the Secretary-General”, refugeesmigrants.un.org/sites/default/files/sg_rep…

12 By contrast, the working methods for the UN Refugee Compact were different. There was no negotiation; the UN High Commissioner for Refugees consulted member countries and then created the document. There were no comparable disputes for the refugee framework since assisting refugees is, like peacekeeping, one of the UN’s core activities and, unfortunately, the demand for UN aid in the world is growing rather than diminishing.

13 He presented the same arguments in the Hungarian government’s speech at the 2018 General Assembly. See “Minister for Foreign Affairs and Foreign Trade Addresses General Debate, 73rd Session” www.youtube.com/watch?v= TwK0Dt8fYqc

14 See also Lauri Mälksoo, “Vaidlused ÜRO inimõiguspaktide üle ja Nõukogude Liidu lagunemine“, Akadeemia No. 1, 2019

15 BBC News, “Migrant crisis: Illegal Entries to EU at lowest level in five years”, 4 January 2019

www.bbc.com/news/world-europe-46764500

16 Global Compact for Safe, Regular and Legal Migration, Articles 18(h)–(l); 21(g)–(h)

17 Ibid., Art. 23(h)

18 Ibid., Art. 26(h)

19 Ibid., Art. 36

20 Ibid., Art. 19(c)

21 For example, although the government’s position spoke of the need to preserve “valid international customary law,” a dispute arose over the future of that law. See Estonia’s positions on the United Nations Global Compact for Migration and Global Compact for Refugees, 22 March 2018 dhs.riigikantselei.ee/avalikteave. nsf / documents / NT0032264E? open # _blank

22 European Commission, “Standard Eurobarometer 90, Autumn 2018. Public opinion in the European Union”, p. 15. ec.europa.eu/commfrontoffice /publicopinion/index.cfm/survey/getsurveisidail/instruments/standard/surve/2/215

23 Such as the Annual Report on Migration and Citizenship Policy 2018 (in Estonian). Euroopa rändevõrgustiku Eesti kontaktpunkti valdkonnaülevaade Siseministeeriumile/European Migration Network National Contact Point for Estonia emn.ee/wp-content/uploads/2018/12/Rände-ja-kodako…