Making the non-binding bind – A critical analysis of the Global Compact for Migration

The following essay was originally compiled for the Mixed Migration Review 2018 and has been reproduced here for wider access through this website’s readership.

The Global Compact for Safe, Orderly and Regular Migration (GCM) and the Global Compact on Refugees (GCR) are products of the 2016 New York Declaration for Refugees and Migrants and are due to be formally adopted in 2018. Together they are meant to represent a new phase in multilateral efforts to get to grips with two facets of global mobility. Yet given that the GCM is a voluntary, non-binding agreement, the key question is: will it be just another talking shop, or will it make a real difference, and if so, how?

“I don’t know whether it will be good enough. But I know we cannot afford not to try to make it work.”

Agnes Callamard,1 Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions

How we got here

The development of the GCM has been a state-led process, with the United Nations ambassadors of Switzerland and Mexico acting as co-facilitators, and the UN’s International Organization for Migration (IOM) working to mobilize states and stakeholders, including civil society organisations. The final draft that was agreed upon during the 6th round of UN member state negotiations in New York was the outcome of a consultative process that included: a series of regional and thematic consultations throughout 2017; a stocktaking conference in December 2017 in Puerto Vallarta, Mexico; and six rounds of negotiations in New York, based on the outcomes of the consultations as well as a report by the UN secretary-general (Making Migration Work for All). All UN member states participated in the negotiations, with the exception of the United States, which decided to pull out of the process shortly before the stocktaking conference in Mexico.2 The final draft of the GCM is set to be formally adopted at an inter-governmental conference in Marrakesh, Morocco from 10-12 December 2018.

The final document includes 23 objectives — each containing a broad commitment and a range of detailed actions considered to be relevant policy instruments and best practices — as well as a section on implementation, and another on follow-up and review. The objectives can be grouped into six main areas: improvement of data and information; mechanisms to address the drivers of migration; measures to protect migrant rights; avenues of regular migration; steps to curtail irregular migration and provide border security; and options to encourage (re)integration of migrants and promotion of development.

Favourable reception

The GCM has been received favourably by states and stakeholders. Despite some backtracking on certain aspects — e.g. detention of children, access to services, and firewalls — the fourth draft delivered a greater emphasis on human rights, for example by adding a clear non-retrogression clause (to ensure that adoption of the GCM could never lead to renegation of previously-adopted instruments of human rights law) and a reference to non-refoulement.

The Office of the United Nations High Commissioner for Human Rights (OHCHR) described the GCM as an important starting point for improved global migration governance that puts migrants and their human rights at the centre. While not perfect, the GCM is a balanced and principled human rights document that provides a significant opportunity to address the challenges associated with today’s migration, and to strengthen human rights protection for migrants.”

The GCM has its detractors. Civil society said in a joint statement it regretted no stronger language could be achieved on: not criminalizing migrants and those who provide support to them; firewalls between enforcement authorities and entities providing services to irregular migrants; and access to basic services and labour rights for irregular migrant workers. Furthermore, the GCM (and the GCR) has been criticized for ignoring internal migration and internally displaced people.

Trouble with two

Some have argued that working from the outset towards two separate compacts, instead of one comprehensive agreement covering all aspects of human mobility (including internal displacement) needlessly established two different tracks, and that such binary thinking was based on a distinction between refugees and migrants that belies the reality on the ground: people in both categories often travel along the same routes and face similar vulnerabilities. Observers warned this separation may entrench a tendency to “silo” law and practice in two areas that are in fact intrinsically linked.

“I think it has disunited people who are working on issues to do with the movement of people… the UNHCR and IOM division of roles, which is increasingly confused. And in the current political environment it’s questionable whether we will have anything more than something with the status of a “reference” rather than really changing something.”

Kilian Kleinschmidt3, German entrepreneur and former UNHCR official

For others, such as academic Alexander Betts, there’s method in the duality: “The compacts are playing quite different roles: the GCR attempts to fill a gap in an existing regime by ensuring more predictable responsibility-sharing; the GCM is one of the first building blocks in the creation of an embryonic global migration governance system.”4

From paper to practice

Will the GCM make a difference, and if so, how? In a fragmented and fragmenting world, and in an area as politically sensitive as migration, it remains to be seen to what extent voluntary agreements will be sustainable and effective.

Some have described the non-binding nature of the GCM as a missed opportunity. Others see this feature as a blessing: “there are limits to how far legal frameworks can deliver on a phenomenon as politically charged and complex as global migration, where the appetite for international cooperation is limited.” A “pragmatic voluntary agreement like the GCM can come in handy, as a platform for negotiations, deals and dialogue”.

UN Special Representative for International Migration Louise Arbour concurs: “When people tell me they deplore the fact that the Compact will be legally non-binding, I often point out to them that we already have legally binding agreements that have not produced good responses and, by contrast, the Global Compact, as a non-legally-binding document, is more akin to the Sustainable Development Goals, which are also not legally binding, but [are] much more helpful as a policy-making tool.”

Others have also postulated that despite its non-binding status, the GCM could have considerable normative impact by becoming an important soft-law instrument which would help guide states’ behaviour.

Implementation is what matters most now. Over the course of the negotiations, the GCM text became increasingly specific in its sections on “implementation” and “follow-up and review” which grew to including concrete commitments to set up a capacity building mechanism and to establish the International Migration Review Forum (set to meet every four years) as the primary intergovernmental global platform for states to discuss and share progress on the implementation of all aspects of the GCM. The adopted text also includes clear proposals on how to link the GCM to other entities, such as the Global Forum on Migration and Development (GFMD)5 and Regional Consultative Processes.6

Hurdles ahead

Potential challenges in the implementation remain. For example, the proposed capacity building mechanism — which is aimed at strengthening national migration agencies, and consists of a connection hub, a start-up fund, and a global knowledge network — needs a clear mandate, adequate funding, and expert staff to achieve its goal. In general, not much is known yet about how the GCM’s implementation will be funded.

New mechanisms

This new phase of global migration governance could better anchor migration within UN structures. Indeed, one of the outcomes of the GCM is the establishment of the UN Migration Network which succeeds the Global Migration Group. IOM will serve as the coordinator and secretariat for the network, which will have a clear focus on effective and system-wide support for implementing the GCM and will report to the UN secretary general. Exactly how the network will be set up (thematically and structurally with UN agencies), involve civil society and the private sector, ensure a regional focus, and achieve coordination and coherence is not clear yet either.7 Still, some commentators believe the Migration Network, and the coordination and leadership it is expected to deliver, will be crucial for the implementation of the GCM.

Another key to successful implementation will be a strong mechanism for monitoring, review and accountability. The GCM proposes to have an International Migration Review Forum (IMRF) which will include a reporting and stocktaking exercise, including evaluations of national plans and progress. That the forum is only set to meet every four years (starting in 2022) has elicited doubts that it could become an effective mechanism to monitor progress in achieving the GCM objectives or to hold states accountable for meeting their voluntary commitments.

Migration and development

The GCM text states that the compact is rooted in the 2030 Agenda for Sustainable Development, and that it aims to leverage the potential of migration for the achievement of all 17 Sustainable Development Goals (SDGs). This provides another opportunity for meaningful change through implementing the compact. However, unlike the SDGs, the GCM does not include any indicators or milestones against which states could measure their progress, an omission some commentators hope to see rectified.

Where there’s a will…

Whether the compact will make a difference ultimately depends on the political will of states to implement their commitments and, especially given the GCM’s voluntary nature, on states holding themselves and other states accountable. The compact clearly confirms the sovereign right of states to determine their national migration policy as well as their prerogative to govern migration within their jurisdiction in conformity with international law. Action plans at state level will therefore be key to the implementation of the GCM, as states will be the main implementers of its objectives and commitments.

In the months between the agreement on the final text and the formal adoption in Morocco in December 2018, some states (Hungary, Australia, Austria) — despite their loudly-voiced worries about irregular migration — have threatened to follow the US and withdraw from the whole process, even though that attempts to develop an internationally shared vision of what migration should look like and how that vision could be achieved. It should be recalled that the GCM was a reaction to the large movement in recent years of refugees and migrants to Europe and to related worries around security and criminality. This is reflected in the text, which focuses on the factors that compel people to move, as well as on migrant smuggling and human trafficking. These are all issues that require international cooperation and the GCM provides a platform to do that. Failing to cooperate on them might have a strong negative impact on all countries affected by migration, including destination countries, and would decrease the capability to better manage migration in all its aspects.

Despite some of the challenges listed above, the GCM includes various concrete suggestions (such as the capacity building mechanism) and structures for better cooperation and coherence (such as the UN Migration Network). While it is too early to assess whether the compact will make a difference, these concrete systems to ensure meaningful implementation, follow-up, review and accountability will be crucial.

1. A full interview with Agnes Callamard appears on page 64 of the Mixed Migration Review 2018.

2. Since this article was drafted for the Mixed Migration Monitor 2018, other countries have re-considered their involvement. A recent news report and interview from the United Nations from the 27th November 2018 explains more.

3. A full interview with Kilian Kleinschmidt can be found on page 166 of the Mixed Migration Review 2018.

4. A full interview with Alexander Betts can be found onpage 84 of the Mixed Migration Review 2018.

5. The GFMD is a voluntary, informal, non-binding and government-led process open to all UN member and observer states to advance understanding and cooperation on the mutually reinforcing relationship between migration and development.

6. Regional consultative processes on migration (RCPs) are state-led, ongoing, regional information-sharing and policy dialogues dedicated to discussing specific migration issue(s).

7. At the time of writing this report the UN Migration Network was not yet established. A UN framing meeting to establish the network was planned for mid-October in Geneva.