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This post originally appeared on the Harvard Law Review (HLR) Blog. To view the original publication on the HLR site please click here.

Written by: Jill Goldenziel, Associate Professor, Marine Corps University Command and Staff College

How To Help the Migration Crisis
The global migration crisis has become a political crisis. As migrants continue the perilous sea journey across the Mediterranean, EU politicians remain deadlocked on creating new, harmonized regulations for migration. Meanwhile, right-wing parties have gained strength across Europe, riding a wave of anti-immigrant backlash. The United States, historically the world’s largest refugee resettlement country, has slashed resettlement quotas and announced bans on refugee admissions and even travel from some of the most war-torn countries on Earth.

Against this backdrop, the UN persists in building two global agreements to assist migrants and refugees. The proposed Global Compact on Migration (GCM) and Global Compact on Refugees stem from the September 2016 UN Summit on Refugees and Migrants. At the Summit, the UN General Assembly adopted the New York Declaration for Refugees and Migrants, which set into motion the process to create both agreements by 2018. Based on my academic work on refugees and migration, I have had the privilege of visiting the UN six times to work on the outcome documents for the Summit and participate in the process to create the GCM. Despite the hostile global political climate in which these agreements are being developed, they are not doomed to fail. Generating political will is the key to the success of the Global Compacts and to their ability to become entrenched as international law in the long term.

To understand how to make the Global Compacts work, we first must understand why they are necessary. The creation of two Global Compacts reinforces an important legal distinction between refugees and migrants and highlights a critical gap in international law. The 1951 Refugee Convention defines a refugee as a person who crosses an international border due to a well-founded fear of persecution, on the basis of race, religion, nationality, membership in a particular social group, or political opinion. As I have documented, this definition was designed to protect only a very narrow group of people. Like the other foundational documents of international human rights law, the 1951 Convention was born from the ashes of World War II to prevent Nazi atrocities from happening again. It deliberately sought to protect categories of people that the Nazis had slaughtered. On any given week, we need only look at the headlines to see that persecution on the basis of the five categories in the 1951 Convention remains as rampant as ever. A global commitment to protect minority rights is as crucial now as it was on the day the 1951 Convention was signed.

The 1951 Convention has been joined by 145 of the UN’s 193 member-states and has provided crucial protections for millions. However, it does not protect the majority of the world’s displaced people. According to the UN Refugee Agency, of 65.6 million “forcibly displaced people” as of 2016, only 22.5 million qualify as refugees. The other 43.1 million have few protections under international law. Most international human rights law treaties require states to protect the rights of their own citizens, not aliens. The Convention Against Torture protects all people from being sent back to a place where they will be tortured or face other inhumane treatment, but most countries place a high burden of proof on the individual claiming the Convention’s protection. The Migrant Workers Convention pertains only to workers who have contracts with employers abroad, and has only 51 state-parties. The term “migrant” itself is undefined in international law. While some regional agreements and UN Guiding Principles aim to help internally displaced people (IDPs), no binding international legal framework exists to protect them.

The GCM aims to start where the 1951 Refugee Convention ends by covering migrants who are currently unprotected by international law. The GCM starts from the premise that states must share financial and moral responsibility for migrants, regardless of where they came from and where they flee. The document will specify new commitments by states to protect the human rights of migrants. However, by design, the GCM will not be a legal instrument. Treaty-making takes years — far too long to address the acute problem of migration today, and states are often reluctant to sign a binding legal document. Instead, the GCM aims to create a framework for “safe, orderly, and regular” migration to which states will more informally commit by adopting the document at the General Assembly.

How can the UN achieve an effective agreement without the binding force of law? My article, Displaced: A Proposal for a New International Agreement to Protect Refugees, Migrants, and States, outlines what states must consider to create a successful agreement. Most critically, the GCM must address the Achilles heel of international human rights law: lack of enforcement. Since the GCM will not even have legal status, it will largely be enforced through international and domestic political processes, not in courts. States will only uphold the GCM if it is in their security and economic interests to do so. Citizens of those states must be assured that having their state live up to its GCM commitments will benefit them. Only then will citizens and voters support legislation or policies that ensure the state will uphold those commitments.

How can advocates of the GCM support it through political processes in their own states? First, data collection on migration will be critical to convince governments and their citizens that upholding the GCM is in their best interests. Reliable data is necessary to answer many questions about the impact of migration on states. For example, leaders and citizens need answers to how migration will impact unemployment, housing prices, and the healthcare system; how migration affects crime and terrorism; how migrants contribute to economic growth; and how migrant assimilation can be improved. The GCM process must mandate accurate data collection so that the Compact itself can be based on evidence about what states and migrants need.

Civil society will also be crucial to enforcing the GCM. Social science research, such as Beth Simmons’s landmark book Mobilizing for Human Rights, shows that civil society is critical to making international human rights law work. International human rights law provides a locus around which civil society groups can mobilize to demand enforcement of individual rights. The GCM can be a similar rallying cry for civil society. Citizens, migrants, and international non-governmental organizations (INGOs) and non-governmental organizations (NGOs) can lobby states to uphold the GCM. Academics, lawyers, and NGOs can educate migrants about the commitments that states owe them and encourage migrants and others to work to protect their rights. When possible, they can even assist migrants to protect their rights in court. And, once again, civil society can better achieve these goals when armed with accurate facts and data, to provide states and their citizens with proof of the GCM’s benefits. Through such efforts, civil society can mobilize individuals to pressure their states to uphold their international commitments.

By bringing civil society into the GCM process, the UN is setting the stage for the agreement’s success. Shortly after the Summit on Refugees and Migrants, some UN member-states expressed opposition to civil society’s involvement in creating the GCM. In December 2016, the UN held a “Modalities Meeting” at which I and other civil society representatives spoke about how civil society could contribute positively to the GCM process. An unprecedented fifty member-states attended the Meeting, a testament to member-states’ interest in and concern with having civil society involved. Ultimately, civil society was welcomed into the process and is now actively participating. States and other stakeholders, including NGOs, INGOs, academics, and refugee, migrant, and diaspora groups, are holding meetings and dialogues about the GCM, building consensus and momentum behind the document. To ensure the GCM’s success, the UN must continue to involve civil society in the Global Compact process, before and after the document is adopted.

Finally, the international community must view the GCM as the beginning of a process, not as an end in itself. No Global Compacts will fully be able to stem future crises. Desperate people will always flee desperate circumstances. Solutions that the international community creates to help them today may not be good in twenty years — or even in five years — as new conflicts erupt and new innovations occur. The GCM must allow flexibility in implementation to keep it relevant, while preserving its core commitments to protecting migrants. The GCM must mandate continuous data collection and updating to ensure that states’ commitments remain evidence-based. Continuously revisiting the GCM will also help capture the momentum that brought the world to coalesce around creating it in the first place. Mandatory updating will help avoid complacency about forced population displacement.

The Global Compacts on Migration and Refugees are important not only for their potential to improve human rights and international security, but also for their potential to create international law in the long term. The Global Compacts represent a new form of international agreement. They are not international law in themselves. However, they are negotiated by states, and will be adopted by the General Assembly as something more than a mere declaration. If the Global Compacts succeed, they will shape state behavior, which will create new norms that will eventually become entrenched as international law.

Global Compacts that “work” can thereby create a new model for international lawmaking through a dynamic international political process. The end result could be a victory not only for the rights of migrants, but also for the creation of self-enforcing international human rights law.

Prof. Goldenziel’s views expressed in this blog post are her own and do not represent the views of Marine Corps University or any other arm of the U.S. Government. She participated in meetings at the UN as a civil society representative from the Academic Council on the UN System (ACUNS) and the American Society of International Law (ASIL). The views expressed at these meetings and in this blog post are her own and do not necessarily represent the views of these organizations.