The Global Compacts, Mixed Migration and the Transformation of Protection

Abstract

Two new Global Compacts – on migration and refugees – were agreed by the UN General Assembly in 2018. The essays in this special issue ask questions about the provision and transformation of protection as these Compacts change migration and refugee governance. They are inspired from legal, geographical and international relations perspectives, and demonstrate how the Compacts constitute and situate protection in deeply conservative ways. For example, the Compacts represent migrants and refugees as starkly differentiated and thus fix their juridico-political status in place without sufficiently taking into account that, empirically, such differentiation is problematic. Overall, the essays in this special issue intervene in the debate about the two Global Compacts not only by exposing the richness of different disciplinary registers and languages, but also by thinking critically about the idea of protection and taking seriously the messiness of “mixed mobility”.

Keywords:

• global compact on migration
• global compact on refugees
• international mobility
• migration governance
• mixed migration
• protection

Introduction

This special issue is the result of a workshop titled “Global Compacts, Mixed Migration and the Transformation of Protection” held at the Refugee Law Initiative, Institute of Advanced Studies, University of London, UK in March 2019. The workshop, and the essays that emerged from it, set out to problematize the 2016 New York Declaration and its two Global Compacts, the “Global Compact on Refugees” (GCR) and on the “Global Compact on Safe, Orderly and Regular Migration” (GCM). The New York Declaration sets out a range of proposed “commitments that apply to both refugees and migrants” (UNGA 2016) in order to ensure their rights, protection and integration with the aim of working towards sustainable development. In turn, the two resulting Global Compacts (UNGA 2018a, 2018b) introduce a paradigmatic change, from framing international migration as a security threat to the Global North (Hyndman 2012) towards framing international mobility in the context of sustainable development (Suliman 2017) and human rights (Guild, Basaran, and Allinson 2019). The latter framing had been advocated for by governments of the Global South (Haque 2018).

The particular process of negotiating and co-writing doctrine at the level of the UNGA had its origins in 2015, when Europe declared its most recent “crisis” with regard to international human mobility (Allen et al. 2018; Krzyżanowski, Triandafyllidou, and Wodak 2018). The last major international crisis before that occurred in the 1970s and 1980s and also gave birth to a long process of doctrine formation and the construction of migration management, which drew on security considerations for its framing. International migration governance is, after all, historically and spatially situated. That earlier process of doctrine formation was driven exclusively by countries of the Global North (Oelgemöller 2011a).

One notable outcome of this earlier process was to establish the asylum–migration nexus, constructing the idea of “mixed migration”, in which it was argued mobile people cannot be differentiated into former categories of forced and voluntary migrants while they are on the move. The academic literature picked up on the idea of mixed migration in the 1990s and especially the early 2000s, albeit that many academic commentators were unimpressed with its logic (e.g. Linde 2011; Van Hear, Brubaker, and Bessa 2009). Yet mixed migration as a concept – however ambiguous and politically motivated – seemed here to stay, not least because it did, and still does, accurately describe the empirical situation of many people who adopt a mobility strategy (see Maple et al. this issue).

More importantly, mixed migration can be seen – at the point of its invention – as a political tool to refocus the governance of migration to ask questions about the legitimacy of access into a sovereign country’s territory (Oelgemöller 2011b). It has, over time, led to a near-exclusive focus on deterrence (from the perspective of the Global North) and containment of mobile people in the Global South (Gammeltoft-Hansen and Hathaway 2015). In this way the political and policy use of mixed migration has been and still is reproducing colonial relations characterizing the ordering of the world on the one hand and opening the door to increasingly unmediated expressions of xenophobia and racism on the other.

The 2018 Global Compacts seem to silence relevant passages in the New York Declaration that deal with mixed migration, by instead aiming to (re)introduce stark differentiations between categories of mobile people. The move is deeply conservative and ignorant of the mechanisms that led to the logic of mixed migration in the first place. However, this should not be misunderstood as a U-turn. This is because the mobility which the Global Compacts are trying to capture in the concept of “large-scale flows”, formerly “mixed migration”, cannot neatly be defined as “voluntary” or “forced”.

Rather, the logic of mixed migration remains potent, and working subtly in the background by informing how the international migration industry (governments, international governmental institutions and some international non-governmental institutions) imagines the “issues” around migration. The problem that “mixed migration” poses for our contemporary “crisis” is that in being acted on at the major geopolitical fault lines to the Global North (not just in the Mediterranean Sea), it leads to disappearance and death (Williams and Mountz 2018). The responsibility for this lies squarely with the governments of the Global North. The response initiated by the process that led to the New York Declaration and the Global Compacts was to reverse the perverse outcomes of migration management and refocus how international mobility is to be regulated.

The New York Declaration – by envisaging two Global Compacts, differentiated into one Compact on migration and one on refugees, rather than one – refers back to the legal boundaries and thus unravels the messiness of “mixed migration”. This is a profoundly political exercise which may or may not be progressive in outcome for those who actually move across borders (Squire 2019).

The attempt at unravelling moves away from identification and allocation of juridico-political status as a question of access, to one of presence by (re)posing the question of protection. Protection, whether this is offered as international protection to refugees (Garlick and Inder, this issue) or more diffusely via the notion of vulnerability in the GCM (McDonald 2020), needs conditions of spatial fixity. Protection is established individually and is situated. Thus, when the instruments to manage international migration are now reframed in terms of human rights and sustainable development, the hovering of mixed migration in the background fixes mobile people in place. This shifts the allocation of juridico-political status firmly into the Global South – containment becomes fixing before any mobility needs to be contained from the point of view of the Global North. Migration, then, is implicitly rephrased as a problem of presence beyond orthodox questions of integration and will have an impact on how the Global Compacts are instrumentalized and implemented.

As the articulations in the New York Declaration and the Global Compacts are steps in new doctrine formation and implementation, these are exercises of international law and international relations which play out geographically. Legal conceptualizations and categories matter, especially as they are politically situated: they can be and often are used to police demarcations. But can they also be used progressively?

The essays that make up this special issue think critically about “protection” in contexts of mixed migration as it is implicitly and explicitly articulated in the Global Compacts. In these essays we talk to each other, if indirectly, across disciplinary comfort zones and languages in an effort to analyse protection gaps, by offering conceptual critique and finally rethinking protection. The essays of this special issue are organized under those broad headings.

Outline of essays

The first set of essays sheds some light on the gaps and challenges the Global Compacts pose.

Jane McAdam and Tamara Wood discuss the adoption in 2018 of the two Global Compacts, on Refugees and Migration, which have reinvigorated longstanding debates about the distinction between these two groups. On the one hand, differentiating between the two is crucial to ensuring that people forced to leave their homes are not removed to a place where they would face a real risk of persecution or other serious harm. On the other hand, drawing a hard line between them does not reflect the current state of international law, nor the complex reasons why people move. This essay argues, in the context of cross-border mobility, the most important distinction is not between refugees and migrants per se, but rather between those who require “international protection” and those who do not. Using the term “refugee” as shorthand for the former is no longer accurate or desirable, and risks arbitrarily privileging the rights of some forced migrants over others. Indeed, a close reading of the Global Compacts reveals that both, in fact, recognize the importance of international protection and that states’ international protection obligations extend beyond any specific definition of a “refugee”.

Madeline Garlick and Claire Inder of UNHCR examine the decision of states to adopt the Global Compacts in 2018, in light of the normative and institutional frameworks for refugees and migrants which underpin them, and the challenges that each Compact respectively seeks to address. They consider the ways in which the GCR seeks to reinforce international protection for refugees and the GCM aims to strengthen protection of the rights of migrants. They also explore the scope for their application together to obviate protection gaps, including in the context of mixed movements. To illustrate this, the essay explores the application of the two Global Compacts to a specific mixed movement situation in the Mediterranean region. This includes examining the potential of the Compacts to provide a firmer basis for states and other partners to address challenges around large-scale arrivals and identification of those in need of international protection, while promoting respect in practice for the rights of all persons on the move in accordance with international law.

Johanna Gördemann and Francois Boucher critically examine how the EU has attempted to shape the Global Compacts and how it positioned itself vis-à-vis the Compacts. The authors draw on the resources of legal and political philosophy to develop a moral critique of the EU’s position on the Compacts. They reconstruct the philosophical perspective underpinning the EU’s view of the Compacts and raise various objections to it. Their analysis draws on a distinction between an approach to migrant and refugee protection based on voluntary assistance and one based on human rights and their correlative duties. Ultimately, the essay defends two claims: first, that the EU’s dominant conception of international migrant and refugee protection is based on a notion of voluntary humanitarian assistance, and second, that the international regime of migrant and refugee protection should rather be based on a logic of human rights that imposes binding legal obligations.

Having analysed the challenges and gaps the Compacts pose, the next set of essays sheds more light by offering conceptual critique.

Christina Oelgemöller contends that the Global Compacts acknowledge mixed migration – both as flow and as motivation – whilst at the same time trying very hard to (re)establish clear boundaries between the two ideal types of people mobility. In this way, mixed migration is deeply problematic. It is the condition of possibility for “illegal migration” to be intelligible in policy terms, but it is also an expression, empirically, of reality. The notion of mixed migration had been a solution in the 1970s and 1980s for doctrine formation in the context of governing international mobility. Today, by insisting on dubious distinctions, the two Global Compacts are turning mixed migration from a solution into a problem, even as they draw on the normative framing of human rights and sustainable development. Does this move represent a shift in perspective, or does it fundamentally transform doctrine on governing international mobility towards a more progressive global approach? This essay argues, based on conceptual analysis of the Global Compacts, they do represent a transformation, but one which is neither complete nor necessarily progressive. For example, in the search for solutions to governing international migration there is a reproduction of individuals as gendered and racialized subjects of global politics. The essay also draws on feminist literature to highlight the mancraft that is involved in rethinking protection.

Annick Pijnenburg and Conny Rijken begin by examining how the two Global Compacts reflect public and policy discourse and international legal norms in differentiating between refugees and migrants. Yet, in a context of mixed migration flows, where migrants and refugees move along the same routes and are, for all but legal purposes, indistinguishable, they question whether such distinctions in law are adequate. In challenging the practical and conceptual dichotomy between refugees and migrants as it is found in international legal instruments, they instead refer to “people on the move” as an overarching category, including a wider range of human mobility for whom there needs to be a basic standard of protection. More specifically, they argue we should broaden our analysis to include the rights of people on the move. An attempt is made at conceptualizing and delineating the rights of people on the move by paying particular attention to mobility rights, safety and dignity rights, and legal protection rights.

Leonie Ansems de Vries and Katharine T. Weatherhead interrogate the production of knowledge about migration in the GCM. To articulate which worlds of mobility it privileges and delegitimizes, they explore this Compact’s approach to “safe, orderly and regular” migration, particularly through its formulation of “information provision” for migrants. The politics of knowledge lies in producing both a conception of “safe, orderly and regular”, linked to state frameworks and informed migrants; and its “other” – “unsafe, disorderly and irregular” – which becomes linked to risky migration, and ill-informed and unruly migrants. Whilst the Compact’s concern with creating safe pathways for movement is promising, they are critical of how the notion of “safe, orderly and regular” has been produced, in conjunction with related concepts, as a means of migration management which might jeopardize its stated aspiration. They argue it can serve to reinforce harmful processes and structures of illegalization which rest on entrenched gradations of (il)legitimacy in migration policies, supported by underlying epistemological frameworks. Two starting points for reimagining migration knowledges are considered: firstly, a human rights approach, which remains limited in a number of respects, and, secondly, the fracturing of modern/colonial epistemologies.

Finally, given the analysis of gaps and conceptual readings, the last section of this special issue begins to rethink protection.

Rodolfo Ribeiro C. Marques dwells upon the right to access consular assistance and protection and its relevance to the architecture of a safe, orderly and regular migration. His contribution first examines the relationship between the state and its citizens abroad, concentrating particularly on the concept of nationality as the legal bond connecting state and individual. It then presents an overview of the main international legal documents prescribing the right to consular assistance and protection – special emphasis is laid on the 1963 Vienna Convention on Consular Relations. The third and final part is dedicated to analysing the scope of the right to access consular assistance and protection in connection with Objective 14 of the GCM. It concludes that the relevance of consular assistance and protection to a safe, orderly and regularly migration cannot be underestimated, and that consular officials play a pivotal role in the implementation and safeguarding of fundamental rights of all migrants at all times.

Then, in the form of a postscript, Nick Maple, Susan Reardon-Smith and Richard Black reflect that when negotiations began in 2015 on the two Global Compacts, many within academia felt uncomfortable engaging with either process. This reflected a general weariness around new international cooperation agreements, the perceived control over the two processes by key international agencies, and an apparent lack of postcolonial voices in the drafting and consultation stages. However, with both Compacts now adopted, there has been a marked increase in engagement. Turning to the special issue itself, they focus on two main themes that emerged from the workshop and the resulting essays: first, forms of protection; and second, the concept of mixed migration. They argue that within both these two themes, attention continues to focus on protection and movement between states, rather than between regions. As such, it remains uncertain how the Compacts will be able to shift the dominance of self-serving policies imposed by the Global North. Nevertheless, they conclude with some glimmers of optimism, suggesting that the political space (however slight) exists for various actors to try and utilize the Compacts to improve protection and opportunities for migrants who adopt mobility strategies. This is especially the case for those who choose to move between global regions in this postcolonial era.

Acknowledgements

I am deeply grateful to David Cantor and Sarah Singer and all colleagues at RLI for their active engagement and participation in the workshop and in the production of this special issue. I am also grateful to Robert J. C. Young for his patient guidance and to the numerous reviewers who have, with their generosity, made the essays included here better than our collective discussions could have achieved. Sincere thanks also go to Richard Black for his very helpful support and advice. Finally, I want to give special thanks to all colleagues who have contributed to the discussion by submitting their essays to this special issue.