Blog post written by Katharine T. Weatherhead, a Refugee Law Initiative Research Affiliate undertaking a PhD in Law at Queen Mary University of London. Katharine’s research is primarily focused on the law and politics of asylum in the EU. The working title of her doctoral thesis is ‘Unravelling Mediterranean Migration: Legal and political knowledge creation and diffusion among asylum seekers, refugees and migrants’. This blog forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
International Covenant on Civil and Political Rights, 1966, art 19(2): Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
What began as a modest topic in the UN General Assembly’s New York Declaration for Refugees and Migrants is now a fully-fledged objective in the intergovernmentally negotiated Global Compact for Safe, Orderly and Regular Migration (GCM). In the New York Declaration of 19 September 2016, States commit to ‘take measures to inform migrants about the various processes relating to their arrival and stay in countries of transit, destination and return’ (A/RES/71/1, para 42). Objective 3 of the Final Draft of the GCM, dated 11 July 2018, pushes the New York Declaration forward. In Objective 3 (para 19), States commit to strengthening their efforts to provide information ‘for and between States, communities and migrants at all stages of migration’. Broad in content, the information is to cover ‘migration-related aspects’ and it is to be ‘accurate, timely, accessible and transparent’. An additional strand of commitment is that States ‘use this information to develop migration policies that provide a high degree of predictability and certainty for all actors involved’.
The GCM lists five key actions to realise Objective 3, which can be summarised as follows: (a) launch a national website on regular migration options; (b) promote cooperation and dialogue on information exchange about migration-related trends; (c) create information points along migration routes; (d) provide arrivals with information on rights and obligations; and (e) promote information campaigns and awareness-raising.
In the following commentary, I highlight a few of the changes that States made to the text of Objective 3 before it reached the Final Draft. I go on to consider the promise that the Objective holds for the future, as well as some challenges that might impact the realisation of its potential.
During the GCM’s negotiation, Objective 3 underwent several changes. To start, the Objective’s title originally addressed the provision of ‘adequate’ information, which was modified to ‘accurate’ information in Revision 3. The change clarifies a standard against which information is to be assessed; less vague than adequacy, the concept of accuracy points to truthfulness or correctness. The language chimes with existing international instruments. For instance, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) directs States to take measures against the dissemination of ‘misleading’ information (art 68(1)(a)) and in the International Labour Organisation Migration for Employment Convention No.97 (Revised, 1949) Members undertake to provide migrants with ‘accurate’ information (art 2). The final wording thus strengthens the basis to work towards the dissemination of information in good faith.
Action (a) prompts the launch of ‘a centralized and publicly accessible national website to make information available on regular migration options’. The national websites are to include elements such as immigration laws, visa applications, qualification requirements, training opportunities, and living costs and conditions. The procedural elements in the illustrative list of website content were expanded across the revisions, with the insertion of topics like fees and credential assessment. In contrast, socio-economic aspects of regular migration options were selectively retained. Though there is still reference to training and study opportunities, reference to employment opportunities was removed in Revision 2. Meanwhile, reference to living costs and conditions remains in the Final Draft. This selective mix of procedural and socio-economic content may mean that the national websites exhibit an incongruence of purpose that could limit people’s use of them.
Action (b) on the promotion of cooperation and dialogue in information exchange evolved to incorporate certain legal safeguards. In Revision 2, a phrase was inserted which qualifies that the action will be implemented ‘while upholding privacy rights and protecting personal data’. The insertion of privacy rights and data protection brings those areas of law implicated in information dissemination to the foreground and underlines State commitments to implement Objective 3 in line with their data-related obligations.
Action (c) on the establishment of information points along migratory routes underwent continuous revision. Initially termed ‘information centres’, Revision 2 refashioned them as ‘information points’. The latter term connotes greater flexibility, and therefore adaptability, in their set-up, which is appropriate given that migratory routes change. States are to make available a range of information at these points, ‘including on human rights and fundamental freedoms, appropriate protection and assistance, options and pathways for regular migration, and possibilities for return’. The main modification to the list of information was around protection. The Zero Draft referred to international protection and asylum procedures, which in Revision 1 was reduced to international protection only, and then in Revision 2 was written more verbosely as ‘access to international or humanitarian protection and assistance’. Finally, it was widened to ‘appropriate protection and assistance’ in Revision 3. While the ultimate wording could weaken any appreciation of the inescapable connection between migration and refugee protection, it is also more inclusive. The wording leaves room for the variety of protection that exists for migrants, including but not limited to refugee status in States parties to the Convention relating to the Status of Refugees (1951).
The provision of information to migrants on their rights and obligations in action (d) became both more and less demanding during the negotiations. On the one hand, the description of information as ‘targeted, accessible and comprehensive’ in the Zero Draft was elaborated to include gender-responsive and child-sensitive, added in Revisions 2 and 3 respectively. On the other hand, the demands of the action were reduced through the removal in Revision 2 of a motion to establish in-person and online counselling centres (though referral to counselling remains covered in action (c)). The additions make the information itself more specific to the recipients, while the removal eases implementation by the providers.
To finish, there was continuous amendment of action (e) on information campaigns. The envisaged information campaigns soon became not only multi-lingual (Zero Draft) but also gender-responsive and evidence-based (Revision 1). Back and forth occurred around the purpose of the campaigns. The Zero Draft articulated their purpose as ‘to inform potential migrants about the challenges and opportunities of migration, including on the risks and dangers involved in irregular migration carried out through traffickers and smugglers’. Revision 2 then stated broadly that the purpose is rather ‘to promote safe, orderly and regular migration, as well as to reduce the incidence of irregular migration’. In a midway position, Revision 3 settled on the purpose as ‘to promote safe, orderly and regular migration, as well as to highlight the risks associated with irregular and unsafe migration’. The reduction of references to risks, dangers, trafficking, and smuggling means that the text is less heavily oriented towards limiting irregular migration. There is accordingly more scope to attend to regular migratory trajectories.
The promise of Objective 3 lies in its potential to enhance processes of learning which can contribute to safe, orderly and regular migration. The promulgation and transparency of laws, along with associated policies and procedures, helps to bring them to the attention of States, communities, and migrants. Such an awareness supports people to act with regard for the legal framework and to use the resources available during migration. Towards this end, the recognition that information is not equally accessible to or relevant for all – communicated in the specifications that information should be child-sensitive, gender-responsive, in an understood language, and provided at all stages of migration – expands the objective’s prospective beneficiaries. For example, though it is not made explicit, the objective’s scope covers migrants in detention, who are mentioned in the UN Secretary General’s report on ‘Making migration work for all’ as frequently not having access to information (A/72/643, para 44).
Furthermore, a public awareness of migration frameworks and associated trends enables critical reflection on the fitness of those frameworks in developing the certainty and predictability that Objective 3 seeks. After all, information can only facilitate safe, orderly and regular migration to the extent that the systems themselves are designed to achieve such migration. The design must include rules and procedures for entry, stay, and expulsion which are sufficiently clear for migrants to be able to form expectations about the possibilities for, and consequences of, action and to act accordingly. A minimisation of the discretion afforded to authorities when they implement the rules would contribute to such foreseeability. Yet, States must be careful not to amend migration frameworks disruptively. Frequent and erratic changes to the content of migration-related laws not only diminish the accuracy of information in circulation but also impede certainty and predictability. In particular, rule changes which transform groups of people from regular to irregular status, or move them from settled to precarious politico-legal trajectories, work against migrants’ reasonable expectations and against the resolve of the GCM. The stability of information and the stability of migration hang partly on the stability of law.
To realise Objective 3’s potential for multiple processes of constructive learning among migration stakeholders, there must be an acknowledgement in practice that using information to promote safe, orderly and regular migration is not the same as using information deter unsafe, disorderly and irregular migration. An approach oriented towards orderliness rather than deterrence is premised on an awareness that unsafe, disorderly and irregular migration is entangled in personal and structural factors that information cannot override. It also necessitates a readiness to share information non-discriminately, and in conversation with involved actors, on the range of options open to migrants across time.
Objective 3 is oriented towards one-way State provision of information and, as I mention in a commentary on the Zero Draft (p 5-6), this is to the neglect of actions to ensure that people can access a mixture of resources in their efforts to ‘seek, receive and impart’ information, to use the language of international human rights law (for example, the International Covenant on Civil and Political Rights, 1966, art 19(2)). People use family, friends, chance encounters, non-governmental workers, websites, authorities, lawyers, and so on to situate their personal migratory circumstances. Access to these resources could offset some of the impact of any distrust of State authorities if they are perceived to have interests which conflict with those of individuals. There is a related risk that standards used to describe the quality of information, like ‘accuracy’, become reified as singular and self-evident. Though there may be benchmarks for technical accuracy, such as legislation, information is inherently ambiguous because it is open to multiple interpretations and uses. This ambiguity affects its acceptance. Without some attempt to tailor information provision to the practices and perceptions of migrants, the promise of Objective 3 will not be fulfilled. For now, that promise remains.
I am grateful to Elspeth Guild for her helpful comments on an earlier draft of this blog post.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.