UN Global Compact for Safe, Orderly and Regular Migration (GCM) – Towards a Legal Regime Governing International Migration? (Part 1)

Does the UN Global Compact for Safe, Orderly and Regular Migration (GCM) fulfill the criteria of a legal regime for international migration or is it just another soft law cooperation framework? If the GCM is merely a state-led cooperation framework, then what is its contribution to international migration law (IML)? Is it limited to institutional questions, including the quality of monitoring and review? What does it mean to ascribe the GCM a ‘governance capacity’? Does governance, constructed as counter concept to government, while at the same time often conceived as an antidote to anarchy, imply that the GCM could be fashioned as the complement to the ‘missing regime’ of IML?

These questions will be addressed in two subsequent blog posts, the first of which examines whether the GCM contains actionable commitment and creates inter-connectedness. The point of departure of both blog posts are the Report of the Secretary-General ‘In Safety and Dignity: Addressing Large Movement of Refugees and Migrants’ of April 2016 and the Sutherland Report of February 2017, accompanying the GCM negotiations.

The Sutherland Report repeatedly held that the GCM is a cooperation framework among States, aimed to ‘enhance the governance capacity’ of States – which delegates regulatory activity and responsibility back to States and upholds a model of state-centric and state-led governance (Guild and Grant 2017). In this first post, we argue that the GCM cannot be considered as just another soft law cooperation framework, as to a certain extent it issues ‘actionable commitments’. States are under a duty to come up with national or regional implementation plans, which will be regularly monitored and reviewed.

In next week’s blog post, we show that this leads to a multi-level governance (MLG) approach which re-states the laws and regulation of local, national, bilateral and multilateral levels. We argue that despite this strong commitment towards MLG, further strengthened by the principle of ‘interconnectedness’, the aspiring multi-actor modality of the March 2018 Zero Draft was considerably weakened when the Final Draft announced a ‘state-led approach’ (Art. 48) with the support of certain UN institutions (Art. 45 Final Draft and Lavenex 2018).

Actionable Commitments and Interconnectedness

The legal nature of the Global Compact’s actionable commitments offers the possibility of standing as a soft law cooperation framework, which is prescriptive enough to amount to more than ‘cooperation’. The GCM pursues a plethora of ‘cross-cutting principles and interdependent guiding principles’; it’s ‘vision’, inter alia a) ‘builds’ on human rights conventions, international guidelines and principles on vulnerability protection, b) ‘roots’ itself in sustainable development, c) ‘ensures gender-responsiveness’, and d) ‘promotes child-sensitivity’.

A key challenge is to learn how it will operationalize such ‘interconnectedness’ without falling into the trap of re-introducing conditionalities, such as between human rights and trade, combatting irregular migration and trade preferences etc. (Panizzon 2018). In the GCM text of 13 July 2018, ‘good’ governance is referred to several times as the prime organizational principle. At the same time, the document refers to initiating and strengthening cooperation over international migrations through a combination of ‘political declaration and a set of [actionable] commitments’.

With its ‘cross-cutting and interdependent’ guiding principles, the GCM aspires to a 360-degree vision of international migration. States are invited to maximize the interlinkages between domestic and foreign policies on migration, to enhance the mutual supportiveness among migration-specific policies (e.g. labor migration with diaspora entrepreneurship) and to increase the coherence of migration towards non-migration-specific policies (trade, education, energy, investment).

At the same time, the GCM adopts a ‘multi-actor’ model of evidence-based governance with informal participation of non-state stakeholders. This amounts to a state-led process in which data is collected to create a collective memory of international cooperation on migration and to construct a common narrative reconciling the migration policies of the Global South with those of industrialized countries. The States’ facts-based collection of evidence, practices, norms and policies condenses into guiding principles and 23 objectives, to be implemented by actionable commitments. These commitments are monitored regionally, nationally and bilaterally.

Challenges in Realizing Interconnectedness

The well-known risks of ‘policy linkage techniques’, led human rights advocates, development agencies and NGOs to critically evaluate the GCM’s vision of ‘interconnectedness’. Embodied in Obj. 2, it justifies host country governments’ unchecked use of ‘carrots’, including trade preferences, investments, development aid, which are then conditionally connected to ‘sticks’, e.g. migration policies minimizing the ‘drivers’ of migration in the South, such as cooperation on readmission of own and third-country nationals, in return for development aid (Mixed Migration Platform 2018).

Many had hoped that the GCM would at minimum reiterate calls on states to uphold their legal obligations under human rights conventions and international customary law (Spagnolo 2019). Instead, Obj. 6 seeks to ‘develop and improve national policies and programs relation to international labor mobility, by taking into consideration relevant recommendations of the ILO General Principles and Operational Guidelines for Fair Recruitment’ and the Migrant Worker Convention, without entering into detail how interaction between the GCM and these instruments shall occur.

This raises the broader question whether the GCM establishes an order of lex specialis and thus a regime of more specificity compared to the leges generales of human rights treaties and conventions or whether it builds on such instruments by monitoring and reviewing the implementation by the national legislators.

One specific gain of the GCM has been to strengthen the protection of migrants in vulnerable situations. In the Final Draft Obj. 7, the 164 signatories of the GCM have removed the previously included goal to ‘promote the operationalization of the Global Migration Group (GMG) Principles and Guidelines’. Instead the 164 states commit to ‘develop national policies and programs to improve national responses that address the needs of migrants in vulnerable situations (…) by taking into consideration relevant recommendations of the GMG Principles and Guidelines’. Also Obj. 7 exemplifies how the Final Draft tightens the reference to another source of soft law by calling on the national legislator to uphold that soft law, which will then be monitored by the GCM review. Specifying how other global soft law tools shall relate to the GCM, is an example of how the GCM has formed, consolidated and is implementing global migration governance.

On the downside, Art. 3.1 of the UN Convention on the Rights of the Child states that in any circumstance, a child’s best interest needs to prevail over other considerations, while the GCM only goes so far to support states to consider the best interest of the child as ‘a primary consideration’ (Atak and Natache 2018). In that sense, the often voiced critique that the GCM water down human rights standards, rather than ‘building’ on them is legitimate (Guild and Grant 2017). It is also an example where the child-responsiveness of human rights law and international migration law clash rather than interconnect.

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 II of this blog contribution

References:
– Atak, Idil and Delphine Nakache, Blogpost, ‘GCM Commentary: Objective 7: Address and reduce vulnerabilities in migration’, Refugee Law Initiative Blog, Oc. 30, 2018.
– 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
– Lavenex, Sandra, Blogpost, ‘GCM Commentary: Implementation, Follow-up and Review’, Refugee Law Initiative Blog, Oct. 25, 2018.
– Mixed Migration Platform, ‘Assessment of the Zero Draft of the Global Compact for Safe, Orderly and Regular Migration.
– Panizzon, Marion. 2018. Global Compact for Migration: eine Chance für die politische Kohärenz?. Almanach der Entwicklungspolitik, 2018/19, CARITAS: Lucerne.
– Report of the SRSG on Migration, also referred to as the “Sutherland Report”, UN Doc. A/71/728, 3 February 2017.
– Spagnolo, Andrea, “We are tidying up”: The Global Compact on Migration and its Interaction with International Human Rights Law,’ EJIL Talk, March 1, 2019:
– UN General Assembly, ‘In safety and dignity: addressing large movements of refugees and migrants,’ UN Doc. A/70/59, 21 April 2016.