From Zero to Hero? An analysis of the human rights protections within the Global Compact for Safe,Orderly and Regular Migration (GCM)

This article examines the Global Compact for Safe, Orderly and Regular Migration (GCM) from three perspectives: First, while the GCM is not legally binding, the human rights obligations of states which underpin the GCM are. The application of international human rights law to everyone, including migrants, has led to frictions in the inter‐governmental negotiation process, with some states declining to sign the GCM. States cannot relieve themselves of the human rights obligations to which they are already, voluntarily, bound by refusing to sign the GCM. Second, the GCM asserts the human rights of migrants, and by implication condemns state practices contrary thereto, but it also yields to political sensitivities. Thus, we encounter a Compact that defends existing human rights standards, but concurrently submits to political will and tolerates conditions of vulnerability. Third, the GCM’s implementation depends upon, as yet undefined, partnerships with non‐State actors and monitoring against human rights standards.     

Protecting and Benchmarking Migrants’ Rights: An Analysis of the Global Compact for Safe,Orderly and Regular Migration

The Global Compact for Safe, Orderly, and Regular Migration (GCM) was to be “guided by human rights law and standards” in recognition of the rights of international migrants, who are currently protected by an overlapping patchwork of treaties and international law. The GCM contains many laudable commitments that, if implemented, will ensure that states more consistently respect, protect, and fulfil the rights of all migrants and also that states incorporate data on migration into a more cohesive governance regime that does more to promote cooperation on the issue of international migration. However, many concerns remain. Using a legal analysis and cross‐national policy data, we find that the GCM neither fully articulates existing law nor makes use of international consensus to expand the rights of migrants. In its first section, this article provides a concise analysis of the GCM's compliance with a set of core principles of existing international human rights law regarding migrants. In the second section, we apply a novel instrument to create an objective, cross‐national accounting of the laws protecting migrants’ rights in various national legal frameworks. Focusing on a sample of five diverse destination and sending countries, the results suggest we are close to an international consensus on the protection of a core set of migrants’ rights. This analysis should help prioritize the work necessary to implement the GCM.     

Not Bound but Committed: Operationalizing the Global Compact on Refugees

The Global Compact on Refugees is not legally binding, but it gives rise to commitments by the international community as a whole. It is also rooted in international refugee law, international human rights law and international humanitarian law. This article addresses how the GCR cannot give rise to binding obligations in international law, yet provide for enhanced protection and assistance to refugees and hosting communities, and establish commitments for a fairer and more predictable sharing of burdens and responsibilities. It does this by reference to other non‐legally binding international documents and rules of law. Additionally, the use of indicators to measure states’ and other international actors’ performance in operationalizing the GCR provides a framework to measure commitments; coupled with greater humanitarian and development co‐operation, commitments can be better facilitated even if the GCR is not legally binding. Finally, the sharing of burdens and responsibilities is also fulfilled by the emphasis on solutions.     

The Global Compacts on Refugees and for Safe,Orderly and Regular Migration: Introduction to the Special Issue

In December 2018, the UN General Assembly adopted two Global Compacts: The Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM). These two compacts, while non‐binding and aspirational in nature, offer the first widely‐accepted new normative frameworks on the movement of people since the ratification of the 1951 refugee convention and its 1967 protocol. This special issue of International Migration aims to analyse the way in which these two compacts were negotiated, examine their potential impact in a number of areas, and compare the way they deal with common themes such as gender, civil society and security. This introductory article describes the background and the process of negotiating the global compacts, provides a short summary of the articles included in this special issue, and highlights gaps in the two compacts that are not elsewhere discussed herein.     

Shortcomings and/or Missed Opportunities of the Global Compacts for the Protection of Forced Migrants

The Global Compact for Safe, Orderly and Regular Migration (GCM) and the Global Compact on Refugees (GCR) are norm‐creating exercises, in the sense of being international legal documents for a new framework that reinforces existing structures and attempt to renew migration governance globally. They were expected to further develop the protection of all migrants. However, despite some progress, there are shortcomings and/or missed opportunities in what they were able to achieve, especially in the case of the protection of forced migrants. Understanding these shortcomings and/or missed opportunities as being conceptual and institutional in nature, and to assess both these sets, this article presents the idea of forced migration and the lack of international protection of forced migrants (part 1), describes the protection of forced migrants achieved by the Compacts (part 2), and ends by assessing the shortcomings and/or missed opportunities in both Compacts (part 3).     

International Travel Security and the Global Compacts on Refugees and Migration

This article examines the security dimension of the Global Compact on Refugees and the Global Compact for Migration and explains how the global compacts expand international cooperation on travel security. Although the Global Compact on Refugees contains relatively few security‐related provisions, many of the Global Compact for Migration's commitments are largely devoted to increasing security by strengthening border controls, improving travel documents, collecting data, using new technologies, like biometrics, and sharing data. By agreeing to increase cooperation on international travel security aimed at reducing irregular migration, migrant origin states have won commitments from migrant destination states to improve conditions for their nationals working abroad. Given that both global compacts are non‐binding and states may take actions to realize some of the compacts’ commitments but not others, the actual consequences of the compacts may vary greatly and lead to unanticipated outcomes.     

Power,capital, and immigration detention rights: making networked markets in global detention governance at UNHCR

With the expanded use of immigration detention and migration management practices worldwide, detention has emerged as a key issue for United Nations and international human rights institutions. A growing international rights movement seeks to make the practice fairer and more humane, leading to the dominance of a mainstream detention rights agenda and counter‐hegemonic system of governance. Drawing on ethnographic fieldwork conducted in Geneva and elsewhere, this article examines the capital, knowledge, and technological expertise that went into the construction of UNHCR's Global Detention Strategy. I highlight the rational calculation undergirding this global detention rights agenda, including the transnational policy networks of NGOs, INGOs, and academics that facilitate the movement's moral authority and capitalist growth. Their practices have become powerful neoliberal development tools, which give veracity to human rights agendas and attract oppositionally‐figured abolitionist praxis.     

Migration and Human Rights on the Mexico-Guatemala Border

This paper identifies the protections in place for irregular migrants on the Mexico‐Guatemala border and analyzes Mexican government immigration enforcement policies and levels of compliance with international standards and national law. The history of the Mexico‐Guatemala border region and different types of migration flows into and through the area are also explored, as well as the linkages between migration, trade, security, and US immigration policy. It is argued that the Mexican government has partially complied with international conventions and national laws to protect the human rights of transmigrants in the Guatemalan border region, but that compliance is not complete and that an international response is required to ensure that human rights standards are upheld.     

The UN Global Compact for Safe,Orderly and Regular Migration: Its Impact on Asia

This article focuses on the Global Compact for Safe, Orderly and Regular Migration (GCM), a landmark international document that builds on the momentum of a decade of initiatives at the international level on migration governance, and its impact on Asia from the perspective of South Asia, Southeast Asia, China, and South Korea. While none of these countries voted against the adoption of the GCM, there are significant differences in how individual countries approached the commitments made in the GCM. These perspectives were articulated in a webinar hosted by Metropolis Asia on 20 June 2018 and in governmental statements made at the UN international conference when the GCM was adopted. This article also discusses the challenges confronting the implementation of the GCM. While the Compact resulted from inclusive and intensive negotiations and many compromises, the road towards realizing its goals will be at least as challenging as the road that led to its adoption. In spite of these challenges, the GCM is a ground‐breaking representation of the first multilateral framework for migration governance. Its success rests upon the recognition that addressing the challenges and maximizing the benefits of migration require true international cooperation, renewed commitment and meaningful action on the commitments agreed to.     

Unauthorized Migrants and the (Il)Logic of “Crime Control”: A Human Rights Perspective on US Federal and Local State Immigration Policies

Immigration control, widely regarded the sovereign right of nation states, has often been pursued at the expense of civil and human rights. More than a century ago, nativists legitimated a punitive approach to immigration control that treated migrants’ rights as secondary by branding millions of newcomers to the United States as a “dangerous class”. In many ways, recent policies similarly criminalize immigrants and deploy crime control strategies in response. This article reviews the most significant of these policies at the federal and local state level, including: border security measures, detention and deportation, the 287(g) program, anti‐immigrant city ordinances, and the Arizona law (SB1070). Each initiative has been framed as necessary to protect American citizens from serious crime. We focus on four ways in which these policies violate human rights: first, border security measures that result in migrant deaths violate the right to life; second, detention and deportation violate the right to liberty; third, detention and deportation punish unlawful residents as though they were guilty of criminal rather than civil violations of the law, imposing penalties that are arbitrary and disproportionately harsh; and fourth, local state policies to counter illegal immigration encourage racial profiling, a practice that violates the right to freedom from discrimination.     

The Global Compact for Migration: what could it mean for women and gender relations?

ABSTRACT

Under half of international migrants throughout the world are women. While large movements of people, human rights and humanitarian crises, and migrant deaths are not new, the public attention given to the arrivals of refugees and migrants to the shores of Europe has compelled governments to engage in a multilateral manner. In September 2016, the United Nations General Assembly held its first-ever summit dedicated to large movements of refugees and migrants, reaffirming the importance of existing legal instruments to protect refugees and migrants, and also foreseeing the development of two new Global Compacts: one on refugees, and the other for safe, orderly and regular migration. This article examines the process to elaborate the Global Compact for Safe, Orderly and Regular Migration from a gender-responsive perspective. It takes into consideration the advocacy role that the Women in Migration Network and other civil society stakeholders have played in its development, identifies the various opportunities and gaps within the Global Compact, and explores how women’s organisations and development organisations can promote change for women in migration under the new Global Compact.     

State Immigration Policies: The Role of State Compacts and Interest Groups on Immigration Legislation

US states are active in enacting immigration policies, which vary widely and have substantial impact on the lives of immigrants. Our understanding of what produces these divergent state laws remains limited. Qualitative research demonstrates the importance of a 2010 immigration compact, supported by a powerful religious organization, in shaping immigration policies in Utah, and the Utah Compact was held up as a model for other states. But is the experience of Utah applicable across other states? We test the effects of compacts and interest groups on immigration policy adoption across all 50 states between 2005 and 2013. Our findings suggest that compacts are actually associated with more restrictive immigration policy. Although states with compacts are more likely to pass inclusive immigration laws, these are counterbalanced by higher numbers of exclusive laws. Both religious and non‐religious interests groups are associated with policy, but they do not explain the effects of compacts.     

The right to stay: challenging the policy of detention and deportation

The aim of this article is to shed light on the situation of refugees (formally designated as asylum seekers) and undocumented migrant workers, who are among the most vulnerable inhabitants of Europe. Both groups face the threat of detention and deportation. The normative framework, which consists of legal standards and residential institutions, will be critically examined. Despite international standards for respecting the human rights of refugees and undocumented workers, policies of detention and deportation and the mass rejection of asylum claims leave little hope for the empowerment, autonomy and social inclusion of these persons. Instead of a straight-forward argument for closing down all detention centres and putting an end to forcible deportations, the article investigates small scale structural possibilities for inclusive – non-selective – responses to these non-citizens.     

The Politics of Childhood and Asylum in the UK

This article considers the general treatment of asylum‐seeking families with children in the UK, focusing on the government's practices and public reactions to these measures. It first describes both the exclusive asylum framework, based on institutionalised suspicion, welfare restrictions and detention, and the inclusive child policy framework, based on recognising children's rights and protecting all children. The article then investigates the implications for policy‐making that these radically opposed regimes have for those who fall between the two categories, i.e. asylum‐seeking children. To this end, we examine more closely three asylum practices — Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, detention of accompanied asylum‐seeking children in immigration removal centres and removals. Our analysis indicates that the government's attempt to fully include families within the restrictive asylum framework has been somewhat frustrated by the mobilisation of a wide range of public actors. As such, despite its supposedly ‘legally unconstrained’ room for action, the government has recently agreed to partly review its policy standards for asylum‐seeking families, apparently aware of the potentially damaging effects of being seen as disregarding children's rights and needs. On the other hand, the government does not seem inclined to question the current asylum framework and the assumptions on which it is based. Consequently, the asylum system for families is likely to remain based on ad hocarrangements conditioned by the scale of the protests.     

The fiscal and human costs of immigrant detention and deportation in the United States

An extensive body of literature has analyzed the individual impacts and collateral consequences of mass incarceration. However, few studies explore the consequences of a parallel and overlapping system: mass immigration detention and deportation. The last 30 years witnessed a dramatic increase in the number of noncitizens detained in and deported from the United States. Individuals detained under immigration laws are held pending adjudication, often mandatorily, and without many basic constitutional protections. Immigrant detention and deportation impose severe burdens on immigrants and their households and levy significant costs to society—financially, as well as in terms of social capital and community well‐being. Chiefly due to the difficulty in accessing noncitizens in the process of detention and deportation, this system has largely escaped sociological inquiry. This article provides a background for understanding the growth and consequences of detention and deportation in the United States. It reviews the literature on these immigration law enforcement programs and suggests topical and methodological directions for future research.     

Principles of Protection for Internally Displaced Persons

For forced migrants who have not left their country but are internally displaced persons, human rights law provides an important framework through which to analyse and address their plight. Two principal reasons underpin this assertion.
First, owing to the compelling need: human rights violations cut across all phases of internal displacement, causing its occurrence, characterizing the conditions of physical insecurity and material deprivation in which the internally displaced often find themselves, and impeding equitable and lasting solutions.
Second, as internally displaced persons remain within the territory of their state, refugee law does not apply and, instead, human rights law provides the fundamental basis for addressing their plight. In addition to human rights law, other standards of international law are also relevant, namely international humanitarian law when displacement occurs in situations of armed conflict and refugee law by analogy.
Drawing on these three standards of international law, Guiding Principles on Internal Displacement have been developed which set out what protection should mean for internally displaced persons in all phases of displacement. This article traces the origins and provides an overview of the content of the Guiding Principles, the text of which is reproduced in full in the Appendix.     

Closing the Gap? Gender and the Global Compacts for Migration and Refugees

Migrant women's organizations, UN Women, and civil society advocacy networks have mobilized to call for greater gender‐responsiveness in migration governance. The development of the Global Compacts on Migration and Refugees presented an important opportunity to continue enhancing the international framework for protecting the rights of women and men on the move. This article asks: How has gender been understood/invoked during proceedings leading up to their adoption? In what ways is it incorporated in the resulting compacts and their operationalization? What are the gains and missed opportunities for gender‐responsiveness? Drawing on data gathered through participant observation in the global compact on migration preparatory meetings and member state negotiations in Geneva and New York, and policy analysis of the drafts of both compacts, this paper aims to determine the extent to which the compacts, and the plans to operationalize them, serve to widen or close the gender gap.     

The Power of Legal Norms in the EU's External Border Control

Despite an increased level of legalization of JHA, academic literature has paid little attention to the role of law in this field. It is the objective of this article to assess the EU's attempt to reconcile its current practices of extraterritorial border control coordinated by Frontex in the Mediterranean with international human rights law, notably the principle of non‐refoulement. By drawing on insights on both rationalist and constructivist accounts, we argue that international human rights principles such as non‐refoulement are usually broad enough for everyone to identify and agree with and to provide state actors sufficient leeway to interpret the rules according to their interest. However, thanks to the activities of numerous inter‐, supra‐, and transnational actors offering various and competing legal interpretations, EU member states feel compelled to react by triggering several rounds of rule‐specification that have the power to clarify pertinent law and strengthen fundamental rights standards.     

Labour Market Realism and the Global Compacts on Migration and Refugees

The Global Compacts on Migration (GCM) and Refugees (GCR) include policy recommendations that aim to increase opportunities for legal labour migration, improve protections for migrant workers, and provide refugees with ‘complementary pathways’ to enhanced protection via labour mobility. This paper explains why there are large gaps between these policy recommendations and the labour market policies and realities in the countries that host most of the world’s migrant workers. These gaps between ideals and realities are likely to limit the effective implementation of the GCM/GCR recommendations on labour migration. More ‘labour market realism‘ is needed to incrementally but effectively improve protections for migrant workers.     

Human Rights of Migrants: Challenges of the New Decade

This review summarizes main trends, issues, debates, actors and initiatives regarding recognition and extension of protection of the human rights of migrants. Its premise is that the rule of law and universal notions of human rights are essential foundations for democratic society and social peace. Evidence demonstrates that violations of migrants' human rights are so widespread and commonplace that they are a defining feature of international migration today. About 150 million persons live outside their countries; in many States, legal application of human rights norms to non‐citizens is inadequate or seriously deficient, especially regarding irregular migrants. Extensive hostility against, abuse of and violence towards migrants and other non‐nationals has become much more visible worldwide in recent years. Research, documentation and analysis of the character and extent of problems and of effective remedies remain minimal. Resistance to recognition of migrants' rights is bound up in exploitation of migrants in marginal, low status, inadequately regulated or illegal sectors of economic activity. Unauthorized migrants are often treated as a reserve of flexible labour, outside the protection of labour safety, health, minimum wage and other standards, and easily deportable. Evidence on globalization points to worsening migration pressures in many parts of the world. Processes integral to globalization have intensified disruptive effects of modernization and capitalist development, contributing to economic insecurity and displacement for many. Extension of principles in the Universal Declaration of Human Rights culminated in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. With little attention, progress in ratifications was very slow until two years ago. A global campaign revived attention; entry into force is likely in 2001. Comparative analysis notes that ILO migrant worker Conventions have generally achieved objectives but States have resisted adoption of any standards on treatment of non‐nationals. A counter‐offensive against human rights as universal, indivisible and inalienable underlies resistance to extension of human rights protection to migrants. A parallel trend is deliberate association of migration and migrants with criminality. Trafficking has emerged as a global theme contextualizing migration in a framework of combatting organized crime and criminality, subordinating human rights protections to control and anti‐crime measures. Intergovernmental cooperation on migration “management” is expanding rapidly, with functioning regional intergovernmental consultative processes in all regions, generally focused on strengthening inter‐state cooperation in controlling and preventing irregular migration through improved border controls, information sharing, return agreements and other measures. Efforts to defend human rights of migrants and combat xenophobia remain fragmented, limited in impact and starved of resources. Nonetheless, NGOs in all regions provide orientation, services and assistance to migrants, public education and advocating respect for migrants rights and dignity. Several international initiatives now highlight migrant protection concerns, notably the UN Special Rapporteur on Human Rights of Migrants, the Global Campaign promoting the 1990 UN Convention, UN General Assembly proclamation of International Migrants Day, the 2001 World Conference Against Racism and Xenophobia, anti‐discrimination activity by ILO, and training by IOM. Suggestions to governments emphasize the need to define comprehensive, coordinated migration policy and practice based on economic, social and development concerns rather than reactive control measures to ensure beneficial migration, social harmony, and dignified treatment of nationals and non‐nationals. NGOs, businesses, trade unions, and religious groups are urged to advocate respect for international standards, professionalize services and capacities, take leadership in opposing xenophobic behaviour, and join international initiatives. Need for increased attention to migrants rights initiatives and inter‐agency cooperation by international organizations is also noted.