Just one week away from the Marrakech conference where world leaders are expected to adopt the Global Compact for Safe, Orderly and Regular Migration (GCM), discussions are heating up, both in parliaments and in the media. In the last few weeks, the Compact has been hit by a wave of disapproval. In addition to the US and Hungary who had already announced in July they would not be endorsing the Compact (the former even before a final text was agreed), another nine countries have pulled out. Six of these are EU member states, joined by Australia, Israel and Switzerland.
Whilst popular debates regarding the GCM have gained momentum only recently, the expected adoption on 10 and 11 December in Marrakech was preceded by two years of meetings and negotiations. The Compact was in fact launched in September 2016 at a UN Summit in New York, encouraged by EU members also struggling with the global migration crisis. The negotiations were then divided into three parts: a preparatory consultation phase for the collection of substantive inputs and recommendations, followed by a stocktaking phase for the assessment of the information gathered, and a final negotiations stage where the text was drawn-up. This process, carried out behind the scenes, allowed 192 UN member states (out of 193, the odd one out being the US) to approve a finalised version of the Compact in July this year. Needless to say, all countries were involved in the negotiations, and those that are now pulling out were among the most active participantsas they worked towards the text they approved less than five months ago.
Although we are close to the adoption date, there is still a lot of confusion surrounding the debate. It is thus important to clear the air. First things first, the GCM is not a treaty, i.e. it is not legally binding. Next week in Marrakech, countries will be endorsing the Compact, not signing nor ratifying it. During the drafting of the text, member states payed special attention to pointing this out, specifying the concept both in paragraph 7 and in paragraph 15. Instead, the Compact is a cooperative framework that recognises the transnational nature of migration and thus the need of addressing it multilaterally. It is formed by 23 objectives for safe, orderly and regular migration, which vary in specificity and scope. The Compact represents the first UN framework dedicated to the rights of migrants, left unaddressed until then, and comes only two months after the IOM was recognised as a Related Organisation to the UN.
Countries that are now pulling out from the Compact point the finger at two main criticisms: the pact does not respect national sovereignty, and it does not distinguish between refugees and economic migrants. However, as the Compact is non-legally binding, its adoption does not oblige any government to act on it or to accept economic migrants.Furthermore, paragraph 15 explicitly mentions the principle of national sovereignty and states that “the Global Compact reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration”. Once again, this is no surprise since member states themselves drafted and agreed to the text. The same holds true also for the second criticism. Paragraph 4 of the Compact states that “migrants and refugees are distinct groups governed by separate legal frameworks. Only refugees are entitled to the specific international protection as defined by international refugee law”.
On 30 November, the Netherlands confirmed it will endorse the migration Compact in Marrakech. However, this week the Dutch government is also expected to approve an Explanation of Position (EoP, expected by Friday 4 December) that clarifies its interpretation of the Compact, and will probably be joined by other EU members as well. The EoP is meant to specify that the GCM works within the jurisprudence of the single countries. But that the Compact does not touch on the sovereignty of the member states is already specified in its text. Can this be considered an attempt to swim against the tide of disapproval that has been crossing Europe these last few weeks? Not really. Whilst the EoP affirms the country’s commitment to the Compact, at the same time its mere existence acknowledges the need to justify the Netherlands’ choice not to pull out.
We are witnessing a complete shift in positions: in July, when 192 countries agreed to the final text, the US was the only exception and it was considered unlikely that other countries would have followed in its footsteps. Now, as mentioned above, seven EU countries have pulled out from the Marrakech conference, two of which (Switzerland and Italy) have stated that the Compact has to be submitted for discussion to their national parliament first, and those who have not feel the need to clarify their choice. All of this notwithstanding the fact that the GCM’s final draft has remained untouched in the meantime.
The repercussions of this shift on the adoption of the Global Compact for migration are still to be seen. Only eleven out of 193 UN member states are not going to adopt the Compact in one week’s time. But the wave of disapproval is expanding, and the countries involved are geopolitically relevant. Even though the Compact’s non-legally binding nature makes it not much more than a symbol of cooperation, this inevitably hits a commitment that was meant to be global.
