UN Global Compact for Safe, Orderly and Regular Migration (GCM) – an Effective Instance of Multi-Level Governance or Catalyst for Externalization? (Part 2)

In the first part of this blog post, we analyzed why the GCM’s vision of ‘interconnecting’ migration-specific to migration-related policies delivers gains, including more room for negotiated outcomes, while at the same time increasing the risk of watering down human rights protection. This second part evaluates the evolution of institutions involved in implementing, monitoring and reviewing the international cooperation framework of the GCM. Its aim is to offer some non-conclusive answers to the question whether the GCM is a ‘governance actor’ in its own right or whether it merely provides an infrastructure for strengthening the ‘governance capacity’ of states over international migrations, and what type of governance it propagates – multi-level or global. To come up with some conclusion means to rely closely on the notion of ‘multi-actor’ participation in the GCM and the role of regions and local bodies therein.

Between the two zero drafts (February and March 2018) and the three revised drafts, but also between the final draft of 11 July 2018 and the intergovernmentally negotiated and agreed outcome of the GCM of 13 July 2018, there seems to have been a big shift regarding the roles of non-state actors. Whereas it was clear from the beginning that non-state actors, including INGOs, academia, philanthropy, business, and trade unions, were not invited in the drafting stage, they could issue statements-to-the-floor at the six informal thematic meetings in 2017 leading up to the Zero drafts. For many, this amounted to an implicit promise that their participation would become more important. Yet, the final draft dissipated many of these hopes by relegating non-state actors’ role to a mere participatory one in a process of entirely state-led negotiations, implementation and review.

The Global Forum for Migration and Development (GFMD):
A Catalyst for Multi-Level Governance in the GCM?

The Global Forum for Migration and Development (GFMD), established in 2007, is an equally state-led, informal and non-binding process. Nonetheless, it provides venues for the private sector, civil society, the UN system, and other stakeholders to create consensus and share expertise, including through its flagship tool, the Platform for Partnerships (PfP). The GFMD has been highly visible since the outset of the GCM negotiations (see UN General Assembly 2016). It has participated in all the GCM tools for non-state actors and was allotted a special slot in the Special Meeting on the GCM with Co-Facilitators and the Special Representative to the UN Secretary General (19 June 2018, Geneva).

In acknowledgment of the strong role the GFMD played in the negotiations as the ‘clearing station’ on civil society matters (Rother 2018), it has become the poster child of civil society involvement in the GCM’s implementation (Art. 51). Firstly, it has provided the space for annual reporting to the International Migration Review civil society’s ‘informal’ assessments on the GCM’s implementation and any practices, findings and approaches it collected (Art. 42 and 47; Piper 2019). Secondly, via the PfP, the GFMD should have become a venue to ‘foster multi-stakeholder partnerships around specific policy issues’ to inform the UN’s Capacity Building Mechanism (CBM), which is part of the UN Network on Migration dedicated to overseeing implementation, but also monitoring and review. Not only is the network’s dual role in law-making and review problematic in terms of good governance, how the GFDM now sits in-between the voice of migrants and civil society and the Network, respectively, can be criticized as ‘filtering’ content (Art. 43) of the International Review. Others applaud that the GFMD’s quasi-tripartite structure (states, civil society and hopefully business) could guarantee a ‘stepping-stone’ towards more multi-level governance in the GCM (Rother 2018). Regardless of the role of the GFMD, the ‘multi-stakeholder’ approach of the Zero Draft got lost in the Final Draft, which reinstates a ‘state-led approach with the participation of all relevant stakeholders (Lavenex 2018).

Sub-State Level: A Cooperation without Effective Operational Principles

Unlike for civil society and the GFMD, the Final Draft of the GCM treats sub-state governmental entities, including local authorities, regional units or cross-regional dialogues, including the Regional Consultative Processes, quite marginally. Whereas the Zero Drafts considered creating a Regional Migration Review Forum (Art. 45 Zero Draft), this idea was removed (see Art. 50 Final Draft), and the role of regional institutions was couched in a very unspecific language.

Even if Objective 3 GCM systemically encourages ‘bilateral, regional, and international cooperation’ between States to exchange data, trends and information (GIGA 2018), a clear commitment to subsidiarity, mutual supportiveness or any other principle in view of organizing the relationships among these multiple territorial-functional levels, is missing. Hence, we argue that in the GCM, the territorial levels generally connect via some kind of cooperation, without an operational principle for organizing the interrelationships. As the levels fail to effectively ‘connect’, or ‘talk to each other’, a ‘programmatic’ or ‘aspirational’ language goes missing, so that governance capacity of the GCM can be questioned.

Nonetheless, the GCM interconnects different themes and rules of international migration law. For example, national integration and domestic social welfare policies become part of the external dimension of migration. Also here, it leaves open the rationale for ‘interconnectedness’ and fails to install sufficient guarantees against its misuse. If refashioned as a tool of conditionality by State practice, this ‘interconnectedness’ may cast non-migration specific policies – such as trade, aid, visa – as kickbacks to reward countries of the Global South that are willing to sign up onto the externalization of migration policies by border shifting, pull-backs and other non-arrival cooperative strategies. If unchecked, ‘interconnectedness’ may become a catalyst for externalization and, thus, an antagonist to ‘good’ governance and the beneficiaries of issue-linkages, who will be unable to benefit from the policy proximities between visa and labor migration, between trade preferences and opening of legal pathways (Vitiello 2018).

In the final analysis, the GCM embodies a system of objectives and commitments rotating around multiple UN bodies, e.g. the network led by the IOM, the international review body, and the newly minted UN-IOM. This choice of UN-centric self-organization brings the regime closer to one of global, rather than multilevel governance. Its vision consists in promoting sufficient cooperation (and thus strengthen members’ governance capacities) to overcome the free rider problem around international migrations (Micinski and Weiss 2017). Depending on whether and how the members will endorse the upgraded IOM and the international migration network, there is still hope for multilevel governance in this UN-itary structure, one, which takes peripheric actors seriously.

As an ‘international cooperation framework’, the GCM’s basic ambition was to make the world of migration law and governance ‘whole’ again – to act as the antidote to the formerly fragmented tools rotating around the setting sun of state sovereignty. Whereas the GCM ‘does not create new rules but reformulates existing ones’, the GCM ‘restates’ (Chetail 2019) the laws of international migration by extracting practices, understandings, transnational laboratories, bilateral agreements from the one-dimensional gravitational pull of states and implanting these into a new, UN-driven planetary system. It is packaged, for now, in an ‘interim’ format of interconnected actionable commitments, reviewed by a mix of UN bodies and the GFMD representing civil society and yet to be determined regional institutions. It represents a 360’ vision of migration awaiting domestic and regional implementation and deeper legitimization of its infrastructure so it can deploy the entire tractions of a fully developed international regime.

Marion Panizzon is a Visiting Fellow at the World Trade Institute, University of Bern and an Associated Researcher of the nccr – on the move Project Migration Governance through Trade Mobilities. She co-led the nccr – on the move project From Traditional to New Migration: Challenges to the International Legal Migration Regime and was a senior researcher at the Institute of Public Law at the University of Berne.

Daniela Vitiello is Research Fellow in European Union Law at Tuscia University of Viterbo, Lecturer at the University of Florence, and a member of the Coordinating Committee of the ESIL Interest Group on Migration and Refugee Law. From 2015 to 2017, Daniela was nccr – on the move Visiting Fellow at the University of Bern (Spring Term 2017) and Postdoc Researcher at “Roma Tre” University.

This is a shortened version of a post originally published on 4 March 2019 on the blog “EJIL Talk” in a symposium of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks? managed by the European Journal of International Law.

Read also Part I of this blog contribution

References:
– Atak, Idil and Delphine Nakache (2018). Blogpost, GCM Commentary: Objective 7. Address and reduce vulnerabilities in migration, 30.10.2018, RLI Blogpost on Refugee Law and Forced Migration.
– Chetail, Vincent (2018). Making Migration Great Again, Presentation, The Graduate Institute, Geneva.
– Guild, Elspeth and Stefanie Grant (2017). Migration Governance in the UN: What is the Global Compact and What does it mean? Queen Mary University of London, School of Law Legal Studies Research Paper No. 252/2017.
– Gammeltoft-Hansen, Thomas, Elspeth Guild, Violeta Moreno-Lax, Marion Panizzon and Isobel Roele (2017). What is a Compact? Migrants’ Rights and State Responsibilities Regarding the Design of the UN Global Compact for Safe, Orderly and Regular Migration’. In cooperation with Raoul Wallenberg Institute.
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– Micinski, Nicholas and Thomas Weiss (2017). Global Migration Governance: Beyond Coordination and Crisis. In G. Ziccardi Capaldo (ed.) The Global Community Yearbook of International Law and Jurisprudence. Oxford: Oxford University Press.
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– UN General Assembly, In safety and dignity: addressing large movements of refugees and migrants, UN Doc. A/70/59 of 21 April 2016.
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– Vitiello, Daniela (2019). ‘Agencification as a Key Component of the EU Externalisation Toolkit. Observations on a Silent Escape from the Rule of Law’. In Sergio Carrera, Arie Pieter Leonhard den Hertog, Marion Panizzon, Dora Kostakopoulou (eds). The EU External Policies on Migration, Borders and Asylum in an Era of Large Flows: Policy Transfers or Intersecting Policy Universes? The Hague: Brill, 125-152.
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