By Emma Larking
Centre for International Governance & Justice, RegNet
The New York Declaration for Refugees and Migrants adopted by the UN General Assembly in September commits states to negotiating by 2018 ‘Global Compacts’ on refugees, and for safe, orderly and regular migration. Unfortunately, these Global Compacts will not be legally binding. As currently envisaged, they represent a disastrous missed opportunity.
When the 1951 Convention Relating to the Status of Refugees was first drafted, the UN Secretary General expressed regret that it did not include a binding resettlement mechanism. States refused to accept obligations to resettle refugees, or to adopt a mechanism allowing the costs of refugee support and resettlement to be distributed among them. The result has been that the world continues to confront refugee and migrant crises. Overwhelmingly the brunt of these crises are borne by the world’s poorest and least well equipped countries. The political and social impacts in these countries have flow on effects, contributing to global instability. Displacement crises are also impacting more directly on wealthy and powerful states. They fuel populism and xenophobia, and support for border control policies that have corrosive effects on the rule of law and rights protection, even for citizens of these states. It is essential that we forge a new international framework for managing displacement that is consistent with human dignity and with the rule of law within and between states.
So what is currently envisaged as the basis for negotiating Global Compacts on refugees and for safe, orderly and regular migration?
The current draft ‘Comprehensive Refugee Response Framework’ – attached as an appendix to the New York Declaration – is premised on continued application of the 1951 Refugee Convention as the primary protection framework. It does not seek to expand the Convention’s narrow refugee definition. This means the Convention will continue to be used as a containment mechanism, allowing states that are parties to the Convention to exclude people who are fleeing natural disasters, civil war, or poverty.
The Refugee Response Framework calls for international burden sharing, but does not attempt to establish a mechanism allowing for the calculation of particular country’s obligations or the imposition of binding obligations. It relies entirely on voluntary ad hoc commitments.
The Framework calls for a focus on ‘root causes,’ but does not impose binding Overseas Development Assistance obligations. It is silent about, and therefore does not challenge, policies of interdiction or repulsion at borders. It says host states should – not must – ‘provide legal stay’ for refugees. It does not call for legal status for other forced migrants.
Proposals for the Global Compact for Migration – also attached as an appendix to the New York Declaration – do not include an internationally managed migration service, nor binding settlement obligations, nor obligations to accord lawful status regardless of mode of arrival. The proposals support further international cooperation on border control. They say that this should occur with ‘full respect for the human rights of migrants’, and at the same time as states cooperate in ‘combatting trafficking in persons, migrant smuggling and contemporary forms of slavery’. The reality that border control policies produce and sustain migrant trafficking and smuggling, and contemporary forms of slavery, is ignored.
The New York Declaration therefore sets a worryingly low baseline for the conduct of negotiations.
If crises of displacement are to be prevented in the future, and displacement generally managed in a way that ensures global political stability and humane treatment for all people, a different framework is needed. New and binding Conventions must recognise that displacement may be caused by degrading poverty, civil conflict, natural disasters and environmental degradation, as well as targeted persecution. They must establish a mechanism allowing for the fair distribution of resettlement obligations and the financial burdens of resettlement among all states. This mechanism will need to take into account a range of factors, including the economic and environmental capacity of individual states to resettle people in need or to provide temporary protection where it is likely that displaced people will be able and willing to return to their country of origin in the near future.
The existence of such a mechanism will spur constructive action to address the root causes of displacement. Currently the need to address root causes is a meaningless mantra, with states that are in a position to act doing nothing because they have no compelling political or financial imperative to act.
Concluding Conventions for refugees and for regular migration that impose binding obligations on states may seem a politically impossible task, but this is an opportunity that the world cannot afford to defer any longer.
As Philip Rudge, the former General Secretary of the European Council on Refugees and Exiles, once said:
I have received many lectures about the realism, the realpolitik of … States and the unrealism, even the irresponsibility of the NGO sector. [But it] seems to me self-evident that the true realpolitik of the modern world, if we are to survive, is tolerance, pluralism, bridge building rather than protectionism, fear and all the defensive aspects of the fortress mentality that we currently live with. Why do the strong States persist with policies that are demonstrably inhuman, very problematic legally and do not work anyway?
 See my discussion in chapter 7 of Refugees and the Myth of Human Rights: Life Outside the Pale of the Law, and particularly p.128.
 Philip Rudge, ‘Reconciling State Interests with International Responsibilities: Asylum in North America and Western Europe’ (1998) International Journal of Refugee Law 10 (1/2) , cited in Emma Larking, ‘Human Rights and the Principle of Sovereignty: A Dangerous Conflict at the Heart of the Nation State?’ (2004) Australian Journal of Human Rights 10(2) 15.