Blog post written by Annick Pijnenburg, a PhD researcher at Tilburg University and RLI Research Affiliate. This post forms part of a series of blog posts analysing the potential and shortcomings of the Global Compact on Refugees.
While the Global Compact for Safe, Orderly and Regular Migration (GCM) was adopted on 10 December 2018 among heightened political tension – including the resignation of the Belgian Prime Minister – leading to the withdrawal of a number of countries in the Global North, the adoption a week later by the UN General Assembly of the Global Compact on Refugees (GCR) has gone relatively unnoticed. The different reception of the two documents, both of which flow from the 2016 New York Declaration for Refugees and Migrants, raises the question whether they are radically different in nature and/or content or whether it is only the result of a targeted campaign against the GCM. Part of the answer may be found in the potential and/or shortcomings of both documents in relation to international law, especially as regards the rights of migrants and refugees. Accordingly, this blog post examines whether the GCR represents a missed opportunity to recall the relevance of international (refugee and human rights) law to refugee protection, particularly in the light of the GCM’s comparatively strong anchoring in international law.
International Law in the Global Compact on Refugees
The UN High Commissioner for Refugees (UNCHR) describes the GCR as follows:
The global compact on refugees (GCR) is a new international agreement to forge a stronger, fairer response to large refugee movements and protracted situations. It grew out of the historic New York Declaration for Refugees and Migrants of September 2016 and its comprehensive refugee response framework, followed by two years of intensive consultations with UN Member States, international organizations, experts, civil society, and refugees.
The GCR is not legally binding (para. 4) and is structured along four parts. The Introduction (Part I) includes inter alia the GCR’s background, guiding principles and objectives. Part II is the Comprehensive Refugee Response Framework which constitutes Annex I to the New York Declaration. Part III contains the Programme of Action whose purpose is
to facilitate the application of a comprehensive response in support of refugees and countries particularly affected by a large refugee movement, or a protracted refugee situation, through effective arrangements for burden- and responsibility-sharing (Part III.A); and areas for timely contributions in support of host countries and, where appropriate, countries of origin (Part III.B). (para. 11)
Last, Part IV includes provisions on follow-up and review.
Accordingly, the GCR focuses more on achieving cooperation between States and other stakeholders in the face of refugee movements than on delineating the rights of refugees and States’ concomitant obligations. Indeed, the text of the GCR itself recalls that it ‘intends to provide a basis for predictable and equitable burden- and responsibility-sharing’ (para. 3). Thus, the GCR seems framed as a humanitarian or development tool rather than a (legal) human rights instrument. Tellingly, it only contains a handful of references to international law, including refugee and human rights law, as opposed to dozens of references to the words ‘humanitarian’ and ‘development’.
This is not to say, however, that international law is totally absent from the GCR. The UN Charter and the 1951 Refugee Convention are mentioned in the second paragraph, and under ‘Guiding Principles’ the GCR recalls that it
is in line with the purposes and principles of the Charter of the United Nations. It is grounded in the international refugee protection regime, centred on the cardinal principle of non-refoulement, and at the core of which is the 1951 Convention and its 1967 Protocol. […] The global compact is guided by relevant international human rights instruments, international humanitarian law, as well as other international instruments as applicable. (para. 5)
Various other provisions also recall States’ obligations under international law: a multi-stakeholder and partnership approach will thus be pursued ‘in line with relevant legal frameworks’ (para. 33) and ‘the importance of upholding the civilian and humanitarian character of international protection and applicable international law’ is recognised (para. 56). However, references to international law remain relatively vague (e.g. ‘in line with relevant legal frameworks’ at para. 33) and weak: although the GCR is ‘grounded’ in the international refugee protection regime, it is only ‘guided’ by other international instruments.
Somewhat surprisingly for a text dedicated to refugees, the GCR hardly refers to the 1951 Refugee Convention and 1967 Protocol. They are mentioned in paragraphs 2 and 5 (see above) while paragraph 6 affirms that ‘[a]ll countries not yet parties are encouraged to consider acceding to those instruments and States parties with reservations to give consideration to withdrawing them.’ Yet that is also their last mention. Likewise, the principle of non-refoulement, the cornerstone of the refugee protection regime, is mentioned only once beyond the ‘Guiding Principles’ section (at para. 87).
International human rights law plays an equally limited role in the GCR. It is mentioned in three contexts. First, human rights are seen to play a preventive role in addressing the root causes of large-scale refugee movements: all States and relevant stakeholders are called upon to ‘promote, respect, protect and fulfil human rights and fundamental freedoms for all’ (para. 9). Second, human rights are mentioned in the context of two specific areas in need of support: safety and security (para. 56) and women and girls (para. 74). Last, human rights are mentioned in the context of solutions, as ‘the promotion and protection of human rights are key to resolving protracted refugee situations and preventing new crises from emerging’ (para. 85). More specifically, local integration is ‘a sovereign decision and an option to be exercised by States guided by their treaty obligations and human rights principles’ (para. 97). One is left with the uneasy feeling that the GCR includes some tokenistic references to States’ obligations under refugee and human rights law while emphasising State sovereignty, rather than explicitly recalling that States are bound by these obligations and calling on them to respect them.
Indeed, the GCR recognises ‘the primary responsibility and sovereignty of States’ (para. 33) and will be operationalised through voluntary contributions which ‘will be determined by each State and relevant stakeholder, taking into account their national realities, capacities and levels of development, and respecting national policies and priorities’ (para. 4). Likewise, Part B of the Programme of Action (areas in need of support) is ‘not exhaustive or prescriptive’ and ‘not intended to create additional burdens or impositions on host countries’ (para. 50). Somewhat disappointingly, existing international legal obligations of States and (where applicable) relevant stakeholders towards refugees are not mentioned, giving the impression that they are irrelevant. The GCR thus seems to emphasise that it does not create new legally binding obligations for States rather than recall that such obligations already exist.
Nevertheless, although there are only a few direct references to international human rights law in the GCR, its language reflects a human rights perspective. This becomes visible through references to ‘safety and dignity’ (paras. 7 and 87), non-discrimination (paras. 9, 13 and 84) and ‘age, gender and diversity considerations’ (para. 13) that permeate the text (see for instance paras. 59 and 72). Thus, although the GCR lacks an explicit anchoring in international (human rights) law, its language is ‘human rights compatible’. However, it can also be argued that it could have been framed more explicitly from a human rights perspective. Indeed, many areas in need of support (Part B of the Programme of Action), such as safety and security, education, health, food security and nutrition, overlap with human rights norms. The text could have included relevant international standards, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and the General Comments of the Human Rights Committee and Committee on Economic, Social and Cultural Rights for instance. Likewise, the GCR could have referred to the relevant provisions in Articles 3-34 of the Refugee Convention, which outline refugees’ socio-economic rights.
Here an interesting parallel can be made with the GCM. As in the GCR, international cooperation plays an important role in the GCM, which aims to ‘facilitate safe, orderly and regular migration, while reducing the incidence and negative impact of irregular migration through international cooperation’ (para. 11). Moreover, like the GCR, it is non-binding and upholds the sovereignty of States (para. 7). However, the GCM is anchored more firmly in international law, as evidenced by the numerous references to international law and human rights throughout its text. The GCM is thus ‘based on international human rights law’ and its implementation serves to ‘ensure effective respect, protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle’ (para. 15). Only five out of 23 objectives in the GCM do not explicitly mention human rights or international law in the commentary (Objectives 16, 18, 19, 20 and 22). In other words, although the GCR is not binding and respects State sovereignty, it could have reaffirmed the rights of refugees, as the GCM does with migrants’ rights.
Explaining the Relative Absence of International Law in the GCR
The weak anchoring of the GCR in international (refugee and human rights) law can be explained in part by its focus on achieving cooperation rather than recalling applicable international legal standards. However, this leaves the question why the GCM, which has a similar aim, does refer extensively to international (human rights) law. Another explanation may be found in the dichotomy between ‘refugees’ and ‘migrants’ which permeates policy, public discourse and international law, and is reflected in the Global Compacts.
The reasoning seems to be that refugee law protects refugees while human rights law offers (limited) protection to migrants. In this light, the GCM’s emphasis on human rights is important since an implicit assumption underpinning the dichotomy between migrants and refugees seems to be that only the latter category deserve protection. On the other hand, it may also reflect a more pragmatic consideration: whereas refugees are protected by a specifically dedicated regime, refugee law, the only protection standards applicable to migrants are human rights norms, by virtue of the fact that they are humans.
In any event, the GCR is only ‘guided by relevant international human rights instruments’ (para. 5, see above) and fails to acknowledge explicitly that international human rights law is applicable to refugees. It also remains unclear why the GCR does not refer more explicitly to the Refugee Convention. The New York Declaration and GCM, on the other hand, explicitly acknowledge that refugees are entitled to protection under both refugee and human rights law. The New York Declaration thus recognises that ‘[t]hough their treatment is governed by separate legal frameworks, refugees and migrants have the same universal human rights and fundamental freedoms’ (para. 6) and requires States to ‘ensure full respect and protection’ for the human rights and fundamental freedoms of both refugees and migrants (para. 22). Likewise, the GCM specifies that ‘[r]efugees and migrants are entitled to the same universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times’, notwithstanding the fact that ‘migrants and refugees are distinct groups governed by separate legal frameworks’ and that ‘[o]nly refugees are entitled to the specific international protection as defined by international refugee law’ (para. 4).
As the dichotomy between migrants and refugees has been criticised (see for instance here, here and here) and it is often difficult to differentiate migrants from refugees, emphasising States’ obligations under international (human rights) law in both Global Compacts could have enhanced rights protection for all.
In sum, then, the GCR acknowledges the relevance of international law, including human rights and refugee law, but fails to engage actively with it. The GCR can be said to pay lip service to international law, mentioning its relevance in the introduction but failing to truly take it into account in the rest of the document. Despite the use of human rights language throughout the text, it is framed as an instrument for humanitarian and development cooperation rather than a reaffirmation of the rights of refugees. This failure to anchor the GCR more firmly in the international legal framework can be seen as a missed opportunity to remind States of their obligations towards refugees. The fact that GCR remains deferential not only to States’ sovereignty and resources but also their policies and priorities, coupled with its failure to explicitly recognise that international human rights law is applicable to refugees, raises the question whether the GCR sufficiently protects the rights of the very people it aims to help.
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