• The Global Compact for Safe, Orderly and Regular Migration is a text which reflects both the migrant perspective with a reaffirmation of their human rights and States’ expectations, including in terms of security and border control:
The Compact provides that States will manage their borders in a manner “that respect national sovereignty and obligations under international law” while “preventing irregular migration”. It therefore provides for enhanced cooperation to fight migrant smuggling and human trafficking and to dismantle smuggler networks, for the benefit of States and migrants.
In no way does the Compact create a “right to migration”: the admission of foreign nationals is the prerogative of States who are free to decide who they allow onto their territory. This prerogative is reaffirmed in the Compact.
• The Global Compact for Safe, Orderly and Regular Migration is an important contribution to improving management of migration flows at the international level involving countries of origin, transit and destination:
Based on the principle that no State can manage the migration challenge alone, it aims to encourage enhanced cooperation on migration, in order to ensure that it is not managed in a disorganized fashion. It is based on the principle of shared responsibility between countries of origin, transit and destination in the governance of migration flows. Key points in the Compact include cooperation to avoid deaths on migration routes and saving lives at sea and elsewhere, strengthening the fight against smuggling of migrants and human traffickingas well as fighting irregular migration, all of which are priorities for France.
• The Global Compact for Safe, Orderly and Regular Migration does not call into question the sovereignty of States in managing migration flows and does not create new obligations:
On the contrary, the principle of national sovereignty is explicitly stated in the text, it is even given the status of “guiding principle”. Furthermore, the Compact is not legally binding. It is therefore impossible to use the Compact to call into question the migration policy of a State. Through the broad lines of this text, the States undertake to cooperate more in managing migration flows. At a more detailed level, the text is a collection of best practices or “policy instruments”, which States are encouraged to draw upon in implementing their migration policy. It can be seen as a menu of options from which States can usefully choose. As regards implementation, the Compact clearly states that national specificities and the sovereignty of States must be taken into account.
• The Global Compact aims to guarantee safe, orderly and regular migration and fight against dangerous, disorganized and irregular migration:
Through the Compact, States undertake to “facilitate safe, orderly and regular migration” while respecting national sovereignty and taking into account the States’ demographic realities and labour market situations, and to “reduce the incidence and negative impact of irregular migration”.
It therefore provides that States organize themselves to work together against the smuggling of migrants and to dismantle smuggler networks. Countries are called upon to bolster their legal arsenals to prosecute smugglers. The measures provided for by the Compact include the exchange of data, notably between intelligence services, to better fight smugglers.
The Compact also sets out the right for States to distinguish between regular and irregular migrant status in implementing their migration policy thereby enabling States to give certain benefits only to regular migrants.
To discourage irregular migration, States undertake to improve information on the dangers of irregular migration by organizing, for example, information campaigns to prevent possible migrants from taking unconsidered risks. The data available on irregular migration must also be further developed and shared between States.
It also sets out the commitment of countries of origin to cooperating to enable migrants with irregular status to return and reintegrate into their country: the countries of origin undertake to provide the documents necessary for migrants to be identified and carry out the return journey, considering that it is often the absence of these documents that hinders their effective return.
• The Compact is based on the principle of shared responsibility between all States and it takes into account not only the perspective of countries of origin and transit but also countries of destination:
The fight against irregular migration and the need for countries of origin to cooperate with countries of destination to reach this goal are the common themes present throughout the text. Countries of origin are called upon upstream to ensure effective control of their borders and downstream to facilitate the return and reintegration of irregular migrants.
The text also calls on countries of origin to reinforce their efforts to deal with the root causes of migration: by investing in development to create more economic opportunities for their population, with the help of countries of destination, but also by improving governance and respect for the rule of law, whose shortcomings are responsible for migrant departures.
They must also further crack down on smuggler networks, who profit from irregular migration. Countries of origin must, for example, bolster their institutions and legal arsenals to dismantle the networks.
• The Global Compact for Safe, Orderly and Regular Migration, as its name implies, only concerns migrants and not refugees:
Refugees are the subject of another Compact, adopted using a different process. The Compact on Migration is based on the principle of distinction between migrants and refugees: refugees have specific protection, provided for by the Geneva Convention of 1951, due to the political persecution to which they are subjected. Migrants, the majority of whom are motivated by economic reasons, are not eligible for this protection. The Compact sets out the need to protect everyone’s human rights, but does not confuse migrants and refugees. It also covers individuals who have moved for environmental reasons, but does not treat them as refugees, because they are not leaving their country for political reasons. Rather, it invites States to fight climate change, notably by implementing the Paris Agreement, to tackle the source of the problem.
The Global Compact for Safe, Orderly and Regular Migration was provided for in the New York Declaration for Refugees and Migrants, adopted at the UN by all States in September 2016. It was negotiated at the UN over the course of 2018, after a long consultation phase in 2017 where all points of view, including those of States, experts and civil society, were considered. All countries took part in the negotiations, except the United States. France, which is committed to multilateralism, played an active part, putting forward its positions and having them incorporated into the text. The Compact will be adopted during an international conference planned for 10 and 11 December in Marrakesh.
- Does the Global Compact for Migration create new legal obligations for France?
NO. The Compact is not legally binding, as stated in the Preamble (“this Global Compact presents a non-legally binding, cooperative framework”). It seeks to organize heightened cooperation between States in the management of migration flows but does not create legal obligations other than those to which States have already subscribed. It sets out commitments that correspond to major management principles for safe, orderly and regular migration, set forth in lists of best practices or “policy instruments” States are encouraged to draw on, while taking into account national circumstances.
Nothing in the Compact will thus make it possible to force a State to apply these instruments if it cannot or prefers not to do so given the national context. Its sovereignty as regards migration policy (including conditions for the entry and stay of foreign nationals) is recognized and reaffirmed. However, as for many international compacts, the implementation of the Compact will be monitored on an intergovernmental basis by an international conference held every year, as well as annual monitoring. This will foster regular dialogue between States on the issue of migration and will create impetus for better international cooperation.
- Does the Global Compact for Migration create a “right to migration”?
NO. The Compact recalls that it is the prerogative of States to decide who they admit to their territory, in accordance with the principle of State sovereignty that is reaffirmed in the text.
Article 13 of the Universal Declaration of Human Rights provides that everyone has the right to leave his country and to return, but does not stipulate that everyone has the right to enter the country of his choosing. The Global Compact for Migration, which adds no obligations or rights to the existing international legal framework, does not enshrine a new right to migration.
- Does the Global Compact for Migration undermine State sovereignty as regards migration policy?
NOT AT ALL. On the contrary, the sovereign right of States to determine their national migration policy is reaffirmed in the Preamble and even elevated to being a “guiding principle” of the text. The text thus encourages States to implement the policy instruments proposed.
The Compact thus sets no goal of increasing the number of migrants in a given country. States are merely encouraged to guarantee regular migration routes, while taking into account national demographic realities and the needs of their labour markets.
- Could the Global Compact for Migration encourage irregular migration?
NO, on the contrary. Combating irregular migration is a constant concern of the text, which calls upon States to reduce “the incidence and negative impact of irregular migration”. Consequently, States are encouraged to cooperate on border control “while preventing irregular migration”.
The Compact also calls for migrants to be better informed of the risks linked to irregular migration in order to discourage it, and recalls the obligation of countries of origin to readmit their nationals.
The Compact also preserves the possibility for States to distinguish clearly between regular and irregular migrants in the implementation of their policies,by reserving certain benefits to regular migrants so long as that does not undermine the protection of the fundamental rights of all migrants regardless of their status.
- Does the Global Compact for Migration recommend regularization of irregular migrants?
NO. The issue of regularizing irregular migrants is mentioned in the text, but it is seen as one of many policy instruments: the Compact recommends using it in defined and limited cases, when justified by the examination of individual circumstances. In no case does the Compact recommend mass regularization as a migration policy tool.
- Does the Global Compact for Migration create new rights for migrants?
NO, the Global Compact for Migration does not create new rights for migrants. However, it does seek to strengthen the protection of existing rights for migrants, as guaranteed in texts that are not always correctly applied, such as the Universal Declaration of Human Rights.
Both destination and transit countries are thus called upon to guarantee better protection of migrants’ fundamental rights. For example, the Compact provides for migrants’ access to basic social services regardless of their status, as is already the case in France on humanitarian grounds. Indeed, it is in France’s interest for other potential migration destination and transit countries to guarantee decent living conditions for migrants.
The text’s philosophy, which is to enhance the protection of the human rights of all migrants regardless of their status, as stipulated in existing texts, does not call into question the possibility for States to distinguish clearly between regular and irregular migrants in the implementation of their policies, by reserving certain services to regular migrants so long as that does not undermine the protection of the fundamental rights of all migrants regardless of their status. This possibility is enshrined in the text.
- Does the Global Compact for Migration provide responses to the tragedies of migrants dying in the Mediterranean or being enslaved in Libya or elsewhere?
The Global Compact for Migration can at least encourage States to step up their efforts and join forces to prevent such tragedies. It emphasises the shared responsibility of all States, including countries of origin, transit and destination – to ensure safe, orderly and regular migration, and thus act in various ways to put an end to situations that threaten the lives, safety and dignity of migrants. It is of course only a contribution to addressing these tragedies, but it can help respond to them.
Firstly, the Compact explicitly sets out that one of its main objectives is to prevent deaths on migration routes, to save lives and address the phenomenon of missing migrants.
Moreover, much of the Compact is dedicated to cooperation in the fight against smuggling of migrants and human trafficking, and it addresses modern forms of slavery. States also undertake to establish a robust legal arsenal, which in some countries is currently inexistent, in order to effectively sanction traffickers. They also commit to cooperate in investigation and prosecution and to better protect victims.
- Does the Global Compact on Migration address the subject of migrations linked to the environment and climate change?
YES. The Compact handles the issue of people displaced for environmental reasons. These people are not considered “refugees” in the text as they are not fleeing their countries for political reasons. Rather, the text invites States to fight climate change, notably by implementing the Paris Agreement, to tackle the root causes of the problem. It also sets out measures to improve anticipation and adaptation to risks, and to progress in our knowledge of the phenomenon. It recommends adaptation of populations at home as the best option, but for those who do not have the possibility of remaining in their countries it does envisage the targeted use of migration options, notably exploring arrangements at regional level.