Governments Debate Irregular, Regular Migrants, Refugee Rights
UN Photo/John Isaac
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Governments met for the second round of negotiations on the global compact on migration.

While some countries expressed support for expanding the pathways to legalizing migration and for enabling all migrants to fully participate in the economic and social lives of their countries of destination, others strongly opposed.

A heated debate took place over how to address vulnerable migrants who are displaced by climate change or natural disasters and cannot go back to their countries, but do not qualify for refugee status.

15 March 2018: Governments debated what rights should be granted to irregular and regular migrants in contrast with each other and with refugees, as well as the implementation and follow-up and review of the global compact on migration. These were among the key areas identified for building consensus among Member States, following the first round of intergovernmental negotiations on the compact.

The second round of negotiations convened from 12-15 March 2018, in New York, US. The Global Compact for Safe, Orderly and Regular Migration is being prepared for adoption at an intergovernmental conference convening from 10-11 December 2018, in Morocco. Negotiations on the text are taking place in six rounds between February and July 2018, in New York, led by co-facilitators Jürg Lauber, Permanent Representative of Switzerland, and Juan José Gómez Camacho, Permanent Representative of Mexico. The first session of negotiations took place on 20, 22 and 23 February 2018.

During governments’ debate on the differentiation between irregular and regular migration, Comoros for the African Group said the focus should be on the individual well being of migrants, and thus the differences between irregular and regular migration should be discussed with a view to addressing specific vulnerabilities. The African Group, supported by many (mostly origin) countries including Tuvalu, the Philippines, Bangladesh, Eritrea, Cuba, Jamaica, Nepal, Costa Rica, Venezuela, and Brazil for a group of countries including Argentina, Canada, Colombia, the Dominican Republic, Honduras, Mexico, Paraguay, Uruguay, Guatemala and Peru, added that all migrants, irregular or regular, have the right to human rights and international assistance. These countries expressed support for expanding the pathways to legalizing migration, with many noting that all migrants should be able to participate fully in the economic and social lives in their countries of destination.

Austria for a group of 27 countries (including Belgium, Bulgaria, Croatia, the Czech Republic, Finland, France, Italy, Latvia, Lithuania, Poland, Portugal, Romania, the UK, Sweden and Spain), expressed a position largely supported by many (mostly destination) countries, including Australia, Japan, China, the Republic of Korea, Guyana, Equatorial Guinea, New Zealand, India, Malaysia, Singapore, Azerbaijan, South Africa and Belarus, anchored in a clear distinction between regular and irregular migration. She explained that irregular migration undermines public trust in migration, puts irregular migrants at risk of exploitation, and is a negative phenomenon. She noted that the compact needs to be based on national sovereignty, and to clearly state that deciding migrants’ status is “the full sovereign right of states.” She added that while human rights and basic services, such as health and legal assistance services, need to be ensured to all migrants, some rights should be applied only to regular migrants, such as the right to equally participate in the economy.

Australia added that he does not support commitments to expanding pathways for the legalization of migration, nor a series of services and/or rights such as family reintegration or participation in the economy. Turkey cautioned against any language that might appear as encouraging irregular migration, adding that all economic objectives in the compact need to apply only to regular migrants. The African Group replied that the International Labor Organization (ILO) Declaration on Fundamental Principles and Rights at Work does not differentiate between the statuses of migrants with regards to the right to work in destination countries.

Hungary said the document is unbalanced, resulting in a “pro-migration document.” He emphasized that “migration is bad and needs to be stopped,” and the efforts of the international community should not aim only to manage migration. The role of the UN, he noted, should be to protect the sovereignty and security of its Member States, to which migration is posing a great risk. He stressed that the violation of a state’s border is a serious crime that should be punished in a very strict way. Hungary continued that the right to migration is not a fundamental human right, and that multiculturalism is not a value of its own and it is not more valuable than a homogenous society. He said Hungary has been a Christian country and wants to preserve that. He concluded that until his country’s position is fully reflected in the compact, Hungary will constantly object to it.

Switzerland, supported by Canada, said sovereignty does not only entail deciding who enters a country’s territory, but also protecting all persons on that territory, the question being what rights apply to each situation. He said access to basic education, basic health and basic law enforcement are important in order to guarantee human rights. Bulgaria, Luxembourg and Jamaica, for the Group of Friends of Children and the SDGs, emphasized that the human rights of all children need to be protected irrespective of their migratory status, and said children pose no security risks.

During the debate on the differentiation between migrants and refugees, all delegates agreed that the compact on migrants and the compact on refugees should: complement each other; avoid overlaps and contradictions; and, while recognizing mixed flows of people, avoid creation of a new legal category. The issue of how to address the situation of vulnerable migrants who are displaced by climate change or natural disasters, cannot go back to their countries, and yet do not qualify for refugee status (under the 1951 Convention Relating to the Status of Refugees) ignited a heated debate. Some countries, including China, Australia and Austria for the group of 27 European countries, said international protection should only apply to refugees, not to migrants or to people displaced by climate change and natural disasters, to whom countries could be invited to provide support or national protection, but not international protection.

Others, including Lichtenstein, Switzerland, Canada, Chile, New Zealand, the African Group and Tuvalu, said the principle of non-refoulement (not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution) is stipulated not only by international law on refugees but also by human rights law. Therefore, it should be applied also to vulnerable migrants, in addition to refugees. Lebanon and others strongly opposed extending the principle to migrants.

El Salvador, supported by Switzerland, stressed the need to establish a minimum standard of protection, explaining that there are issues not captured in the 1951 Refugee Convention or its protocols because the context was different then, and now climate-induced displacement requires response. India and Japan proposed that vulnerable migrants be addressed under the refugee compact. The African Group noted that mixed movements of people should be addressed in both compacts, because different measures are necessary at different stages of the mixed movements, with some measures for migrants and some for refugees.

During the debate on implementation, follow-up and review, Japan and other countries opposed the creation of new mechanisms. Other countries, including the African Group, Indonesia, Bahamas, Brazil, India, El Salvador, the Philippines and Jamaica, supported the creation of the new proposed capacity building mechanism. Some countries, including Australia and Austria for the group of 27 European countries, stressed that contributions to any mechanisms should be voluntary. Several countries, including Turkey, China, South Africa, Switzerland and the African Group, called for all states to embrace the principle of shared responsibility and for donors to make financial contributions in support of developing and the least development countries (LDCs), with the African Group, Cuba and China asking for respecting and increasing the current official development assistance (ODA) commitments. Russia opposed the principle of shared responsibility, stating that the countries that originated the migration crisis should be the ones “shouldering the burden.”

Some countries, including Norway and Mexico, expressed support for a “strong organizational base” for the review of the compact. Norway, supported by Argentina and Guatemala, added that reviews might be necessary more often than every four years, maybe every two years. Australia, supported by Brazil, Mexico, Canada, Austria, the Philippines and Switzerland, stressed that the follow-up and review and the implementation of the compact should be state-led, supported by the private sector and civil society. Russia opposed the involvement of civil society. While Bangladesh and others called for a strong follow-up and review based on clear targets and indicators, others like Australia, Lichtenstein, India, Indonesia and Thailand favored a “light touch.” China strongly opposed the idea of indicators.

After the two days dedicated to these key areas for consensus building, delegates conducted a reading of the “zero draft plus,” which contained only minor technical changes compared to the zero draft. A new draft incorporating the substantive changes requested will be released before the next negotiation session, convening from 3-6 April 2018. [Letter of Co-Facilitators] [SDG Knowledge Hub story on Zero Draft Plus] [Zero Draft Plus] [SDG Knowledge Hub story on first round of negotiations][Negotiations webpage] [SDG Knowledge Hub sources] [SDG Knowledge Hub coverage of migration compact]


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