WHAT IS A COMPACT? Migrants’ Rights and State Responsibilities Regarding the Design of the UN Global Compact for Safe, Orderly and Regular Migration

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On 19 September 2016, in response to the large movements of refugees and migrants around the world, the UN General Assembly held its first ever summit dedicated to this topic. The outcome was the New York Declaration for Refugees and Migrants, which not only reaffirms the importance of existing legal instruments to protect refugees and migrants, but also foresees two new global Compacts; one on refugees, and one of safe, orderly and regular migration. Both compacts are scheduled to be adopted by the General Assembly in the summer of 2018. The United Nations High Commissioner for Refugees (UNHCR) is responsible for the negotiation of the Compact on Refugees. The Compact for Safe, Orderly and Regular Migration is primarily in the hands of the UN Special Representative for International Migration, assisted by the International Organisation for Migration (IOM), which became a UN related organisation in July of 2016.

While both these organisations have expressed much enthusiasm for the prospects of these new agreements in responding to the current challenges surrounding migration and refugee protection4, the final content and resultant impact of each compact are as of yet uncertain. More fundamentally, there is little clarity on exactly what kind of international agreement a compact is, and where it sits in relation to existing instruments of international law and international relations. The term appears to have arrived fairly recently in international and regional discussions as an increasingly popular political tool with restricted legal content.

The objective of this working paper is to examine what a compact is, how it relates to other international instruments, and what, if any, normative implications follow from such an instrument. The working paper secondly analyses the likely impact of the Compact for Safe, Orderly and Regular Migration on human rights of migrants by examining the role of related UN compacts, the negotiation process for the Global Compact on Migration so far, as well as the political context in relation to other agreements in this area. Our concern is that inter-state agreements which concern rights of individuals (in this case migrants) must take forms which complement existing international legal obligations of states. These new forms of agreement are welcome if their content raises standards of treatment of migrants above the exiting floor of rights contained in international conventions. They are a threat, however, to the UN human rights conventions if they, either intentionally or unintentionally, appear to lower existing standards of human rights.