Opinion: The Global Compacts Should Not Fail Refugees and Migrants

By Stephane Jaquemet, ICMC Director of Policy

Initially intended to be both comprehensive and a step forward in protecting large numbers of people on the move worldwide, the two international agreements currently being negotiated at the United Nations risk falling short of their aspirations. However, there’s still some room to fix them.  

On 19 September 2016, United Nations Member States unanimously adopted what came to be known as the New York Declaration for Refugees and Migrants. An aspirational document, it intended to address “large movements of refugees and migrants.” It came at a time when the relatively large numbers of people trying to reach Europe was capturing the world’s attention. The timing seemed perfect to create a global ‘responsibility-sharing’ deal which would take into consideration migrants and refugees’ rights and needs as well as States’ capacities and challenges.

The New York Declaration set the stage for the development of two separate comprehensive agreements: a Global Compact for Safe, Orderly and Regular Migration (GCM) and a Global Compact on Refugees (GCR). As both documents are entering the sixth and final round of negotiations, it’s high time to take stock of where they’re going.

Although initial promises and commitments seemed encouraging, the two Compacts are progressing on parallel tracks and are growing further and further apart. One of the reasons for this is that different actors are responsible for each document – the UN Refugee Agency (UNHCR) for the GCR and the governments of Switzerland and Mexico for the GCM. Another, more significant, reason is the fact that some States are trying to keep both tracks parallel to limit the rights of irregular migrants.

This is problematic for many reasons, but in particular because creating two separate, ‘siloed-off’ documents fails to address some of the challenges of modern migration. One of the main traits of migration nowadays is its ‘mixed’ character: people move for many reasons, they have many different statutes, needs, challenges and opportunities. People are, after all, much more mobile and flexible than legal and technical definitions. Failing to address these issues will result not only in a missed opportunity for a truly effective global migration architecture, but it also risks pushing many people through the widening cracks between the two Compacts.

In their present form, the Global Compacts are creating three categories of people on the move who are not comprehensively addressed by either document and who therefore risk falling into a ‘protection gap.’

In the first category are people who flee conflict, generalized violence or human rights violations – that is, persons who are generally considered as being “in need of international protection” but who do not strictly correspond to the 1951 Refugee Convention definition of a refugee (which refers to a well-founded fear of persecution on a number of specific grounds). The current version of the GCR makes a rather narrow and legalistic reference to international or regional treaties, which could present not only a legal but also an operational risk for those who flee situations such as those mentioned above. The first draft did include a broader refugee definition, which was later restricted, most likely due to objections by some States.

In the second category are victims of natural disasters, environmental degradation and climate change. Once again, this category of people was included in the first draft of the GCR and later removed. This is a clear sign of political unwillingness to broaden the refugee definition (which, sadly, is understandable in the current climate). It also restricts the operational outreach of the humanitarian community (which is just as sad but much less understandable). Although the GCM is expected to cover these people, we need a better definition of this category as well as of the rights and humanitarian needs of those falling into it in order to avoid serious gaps. Though not necessarily refugees, victims of natural disasters in particular share almost the same predicament as they do.

Thirdly, migrants in vulnerable situations – especially if they do not have a regular status. This category also includes people who do not qualify as refugees, but who cannot be returned to their home countries (according to the principle of non-return under international human rights law). Failure to mention this arguably quite large group of people would leave them unprotected, creating a significant gap between the two Compacts and a worrying continuation of the current ‘protection limbo.’ Although it is not the case with the current draft, there seems to be a push by some States for a GCM that would protect only ‘regular’ migrants. That push must not prevail!

Overall, the lack of cross-references between the two Global Compacts furthers the compartmentalization of the migratory phenomenon. True, migration can be regularized through different legal regimes, but it should not be pigeonholed or treated in such a way that leaves categories of people without rights. The idea that migration is either voluntary or forced, either a choice or a necessity, is inherently unrealistic; the reality on the ground is much more complex. Failing to acknowledge the challenges and specificities of mixed migration – both Compacts, in their current draft form, are almost silent on the issue – would be a severe flaw in the whole process.

However, there is still space for hope. The intergovernmental negotiations are still going on. The GCM, true to its ambition of being a 360º vision of international migration and in spite of toxic narratives on migrants in so many countries, is still, in its current draft, a largely principled and protection-oriented document. Hopefully, this approach promoted by the co-facilitators will prevail over the restrictive views of some States. Although unfortunately complementarity and mixed migration are amongst the casualties of the process to date, civil society organizations continue to demand that both Compacts be complementary, thus avoiding gaps between them.

The coming weeks will be crucial to ensure that no further gaps be allowed to develop. But the final, likely to be adopted, drafts, will be only the beginning of the journey. A document remains alive to the extent it is implemented in good faith. Both draft documents, particularly the GCM, remain relatively vague regarding implementation and follow-up. This entails a significant risk but also an opportunity for civil society – as well as migrants and refugees themselves – to help design the international migration and refugee agenda for the coming years.