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Tuesday, February 19, 2019
UNITED NATIONS, Jul 30 2018 (IPS) - When Secretary-General Antonio Guterres was asked about the legality of the UN’s much-ballyhooed Global Compact for Migration, he was initially evasive in his response.
“I’m not a lawyer”, he told reporters July 12, “and I presume that this question might be better asked from a lawyer”.
In the case of something that is not legally binding, (which the Global Compact is), he said: “I don’t think it can be considered directly as customary international law”.
Guterres chief Spokesman Stephen Dujarric added a note of levity when he intervened: “We’ll get a lawyer”. [Laughter]
But the growing humanitarian crises, which triggered the Global Compact for Migration, is no laughing matter.
The lingering question, however, remains: If countries such as the US, Australia, Hungary and the Gulf nations, who have signed and ratified the 1951 Convention, continue to restrict or bar political refugees, what good is the Global Compact, whose implementation is only voluntary?
At the same time there are growing political movements in countries such as UK, Italy and Germany challenging the entry of political refugees and migrants in violation of the Convention.
Asked about the shortcomings of the Compact, Charlotte Phillips, Advisor/Advocate, Refugee and Migrants’ Rights team at the London-based Amnesty International (AI) , told IPS: “As you rightly point out, the Compact is non-binding, which means there is no legal obligation for states to put the Compact into action.:
She said this is one of the key problems with the Compact. It effectively means that states can cherry pick which aspects of the Compact they want to implement.
This reflects and entrenches the current status quo whereby wealthier states can pick and choose what, if any, measures they take to share responsibility, leaving major hosting nations in developing regions to shoulder the lion’s share of refugees, she pointed out.
“Having said that, the Compact is supposed to express a consensus commitment and member states have spent months negotiating the details of the Compact, showing that states do take its content seriously.
“The real question now is whether the political will needed from governments to implement the Compact is there?,” she said.
It is also worth noting, she pointed out, that many of the states negotiating the Compact have already ratified the 1951 UN Refugee Convention, which is legally binding and these obligations are still relevant and the Convention is referenced in the Compact’s guiding principles.
“Despite this, whilst negotiations have been in full swing, we have seen the rights of refugees violated by governments. For example, we have seen European governments attacking NGOs’ capacity to rescue refugees stranded at sea and adopting policies of deterrence and border control that expose refugees to abuses”.
“We have seen Australia continue to justify its cruel and torturous detention practises on Manus Island and Nauru. For the Compact to be worth the paper it is written on, we need to see the principles laid out in the Compact translated into real action to protect refugees,” she declared.
Joseph Chamie, a former director of the United Nations Population Division and an independent consulting demographer, told IPS: “The Global Migration Compact is a step in the right direction, but it will not resolve major problems, including the refugee crisis.”
Fundamentally, he argued, the Compact is non-binding and voluntary and while various factors are at play, four key elements are human rights asymmetry, global demographics, limited migration options and growing opposition.
Firstly, Human rights asymmetry: you have a right to leave your country, but you don’t have a right to enter another country. (See: “Knock, Knock …. Who’s There? Many Migrants!“).
Secondly, Global demographics: the demand for migrants in receiving countries is far less than the growing pool of potential migrants in the sending countries. (See: “Prepare for the 21st Century Exodus of Migrants“).
Thirdly, Limited migration options: the large majority of people wishing to emigrate basically have no legal means available to them other than illegal migration. (See: “Understanding Unauthorized Migration“).
Fourthly, Growing opposition: countries worldwide increasingly aim to reduce immigration levels and stem record flows of refugees by erecting fences and barriers, strengthening border controls, tightening asylum policies and restricting citizenship. (See: “Mind the Gap: Public and Government Views Diverge on Migration“).
A New York Times report on July 22 said thousands protested in cities across Australia to mark five years of a controversial government policy under which asylum seekers and migrants have been turned away and detained in Pacific Islands such as Papua New Guinea and Nauru for years –triggering criticisms from human rights groups and UN refugee agencies.
The fate of over 1,600 people remains in limbo due to this practice of “off shore processing” of asylum seekers.
The Global Compact for Migration, which is expected to be adopted at an international conference in Marrakesh, Morocco, in December, is unlikely to resolve their key problems.
The United Nations is expecting 192 countries to participate in the Morocco conference, minus the US which pulled out of the negotiations back in December, with the Trump administration hostile towards cross border migrations and with a ban on migrants from six Muslim-majority countries: Syria, Yemen, Libya, Iran, Somalia and Sudan.
An estimated 258 million people are categorized as international migrants, and since 2000, about 60,000 people have died while crossing the seas or passing through international borders.
The European Union (EU) is taking one of its members, Hungary, to the European Court of Justice because of its anti-immigrant laws in violation of several EU treaties.
Iverna McGowan, Director of Amnesty International’s European Institutions Office, was critical of Hungary’s decision to prohibit civil society organizations (CSOs) from advocating the cause of migrant and refugees.
“Hungary’s attempts to prohibit the legitimate and vital work of people and civil society organizations working to protect the rights of migrants and asylum-seekers are unacceptable.”
“By challenging a legislative package that flagrantly breached EU human rights law, the European Commission has sent a clear and unambiguous message that Hungary’s xenophobic policies will not be tolerated” she said, pointing out that European leaders who have remained largely silent over the human rights crackdown in Hungary must now follow the Commission’s lead and call for these laws to be shelved.
“With new restrictions on freedom of expression and assembly also on track for adoption by the Hungarian parliament tomorrow, it is more important than ever to challenge the Hungarian government loudly and clearly,” said McGowan.
According to Amnesty International, the new infringement procedure by the European Commission concerns a package of xenophobic measures that came into effect in Hungary on 1 July 2018.
Under these laws people providing assistance to asylum seekers and migrants, including lawyers and international and non-governmental organisations (NGOs), can have their access restricted to asylum-processing areas and may even face criminal proceedings if they facilitate claims that are unsuccessful.
The measures make it impossible for people who passed through another country before arriving in Hungary to claim asylum, said Amnesty in a statement released last week.
The European Commission found these measures to be in violation of the Union’s Asylum Procedures, Reception Conditions and Qualifications Directives and of the right to asylum. It also pointed out inconsistencies with the EU’s provisions on the free movement of Union citizens and their family members.
Hungary’s policies and practices on refugees, asylum seekers and migrants cause unnecessary human suffering, while the government has increasingly sought to silence critical voices, Amnesty warned.
Michael Clemens, a senior fellow at the Center for Global Development, said the Global Compact is the biggest step the world has taken to cooperatively face the defining policy challenge of our time: how to better regulate international migration in this century.
The Compact offers a clear mandate and roadmap for countries to work together to get more of what they want from migration and less of what they do not want, he noted.
Unfortunately, he warned, there is currently a political movement ascendant in the U.S., UK, Italy, and elsewhere promising to address the many problems of migration by restricting or eliminating it altogether.
This new Compact is the defining alternative to that movement. It is a treasure chest of the best ideas on how to address the many challenges of migration with hard work and a pragmatic cooperative approach, he said.
“While the Compact is now final, the real work is just beginning. As countries prepare to adopt the Global Compact for Migration in December, discussions will revolve around how to operationalize and implement the commitments agreed to in this document”.
One innovation endorsed by the Compact, he said, is the idea to create Global Skill Partnerships. Other innovations should also be piloted and tested out, as countries and their partners work to identify sustainable solutions to today’s migration challenges and opportunities.
“The road ahead will be difficult and many of the challenges and points of contention that arose during the Compact’s negotiations will not disappear with its adoption”.
Rather, countries will need to tackle these challenges head-on as they work toward pragmatic, evidence-based, and coordinated migration policies and practices that fulfill the objectives and commitments of the Compact, he declared.
Chamie told IPS while the 1951 Convention and the 1967 Protocol are legally-binding, implementation remains problematic, even when countries are in violation.
The trend is clear: governments are increasingly resisting taking in refugees and those who seek asylum. Why?
Global demographics play a central role because of the sheer record-breaking levels of refugees, asylum seekers and internally displaced persons.
Claiming refugee status: further complicating the refugee situation is as many unauthorized migrants seek to improve their lives and those of their children. (See: “The Dilemma of Desperation Migration“).
Implicit message: the de facto message and understanding of men, women and children including smugglers as well as the implicit principle guiding many governments of receiving countries is: If you can get in and keep a low profile, you can stay. (See “Illegal Immigration Illogic“).
Ineffective policies: due to the complexity of the issue, limited resources, human rights concerns and heated public sentiments, government policies have been ineffective in coping with surges of unwanted migration.
In the end, although invariably contentious, deferred action, amnesty and regularization are frequently used to address large numbers of unauthorized migrants. (See: “Unwanted Migration: How Governments Cope?“).
The writer can be contacted at firstname.lastname@example.org
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