Blog post by Maja Grundler (QMUL) and Professor Elspeth Guild (QMUL).
While the Marrakech Compact (MC) is a non-binding instrument, it foresees a number of review mechanisms, most importantly the International Review Forum starting in May 2022. There have already been regional review fora across the world, in preparation of this year’s event and many states have participated with reports on their implementation activities. In an earlier blog series at RLI we followed the review report from the UNICE region (Europe and North America) which revealed very high levels of inconsistency in content, quality and relevance to the MC among the different states and other bodies reporting. One of the original features of the MC is that delivery of the objectives is not limited to state authorities but also includes a range of other actors, some of which have been more engaged with MC implementation than others (para 44).
In order to address the issue of reporting and its consistency, in October 2020 the UN Network on Migration produced a Guidance note for use by governments and other relevant stakeholders on MC implementation. The UN Network is coordinated by IOM which is charged in the MC itself with establishing the Secretariat. One of the criticisms which has been made regarding the Secretariat is that there has been too little coordination with all the UN bodies engaged in MC-related activities, in particular those UN bodies which are charged with standard setting and compliance. This is particularly important in the field of human rights, one of the guiding principles of the MC, but which is not included in the IOM governing agreement. Indeed, when the IOM became a related organisation of the UN in 2015, the lack of any reference to human rights was a matter of some concern. Nonetheless, in the Guidance, attention is given to UN human rights standards and the need for states to incorporate them into their implementation plans.
With the first International Migration Review Forum, which will be, in the words of the MC itself, the ‘primary intergovernmental global platform for Member States to discuss and share progress on the implementation of all aspects of the Global Compact’ (MC para 49 b) around the corner, it is warranted to take a closer look at the ‘six-step process for GCM implementation’ foreseen in the Guidance. This is also incumbent as the second UN report on the MC was less than overwhelming in its approach and content.
This blog post gives an overview of each of the six steps before commenting on the government-led approach to implementation adopted in the Guidance. It then argues that while the guidance document provides governments with valuable support for planning implementation of MC objective and standards, what is needed in addition is guidance for migrant and civil society organisations. While the Guidance assumes that governments will seek to implement the MC in good faith, independent monitoring by organisations which can hold states to account for a lack of compliance with MC standards is needed to achieve meaningful progress.
Step 1: Kick-off
The first step foreseen in the Guidance on MC implementation is the identification of relevant stakeholders. This includes identifying relevant policy sectors and the corresponding government bodies and departments, as well as non-governmental entities and groups. The latter may consist of a wide range of actors, such as migrants themselves, civil society organisations, private sectors actors, academics and the media. The Guidance recommends governments then consider how to meaningfully engage with the relevant stakeholders, in a transparent and accessible way in order to promote MC implementation, for example through consultations, meetings and dialogues. Further, the Guidance suggests possible institutional setups for MC implementation, led by specific government bodies, or by a cross-governmental working group. The first step also entails awareness-raising with the relevant stakeholders identified around the MC and its principles. Certainly, in the reports of the UNICE region implementation, evidence of coordination between state and non-state sector bodies charged with implementing the MC was sparce. Sadly, despite highlighting the need for meaningful stakeholder participation, the first UN report mainly highlight the contributions of UN organisations to implementation efforts, while the concrete involvement and contribution of regional and national civil society organisations is less obvious. Meanwhile, the second report notes that ‘[s]takeholder consultations, interventions and written inputs suggested that engagement with stakeholders be strengthened prior to the conduct of regional reviews and in the preparation of voluntary reports.’
Step 2: Needs Assessment
Following the kick-off activities, the Guidance foresees a needs assessment. This entails identifying the greatest migration governance issues, challenges and needs in the country in question. This exercise is intended to ‘identify GCM objectives for immediate action’ and is envisaged to include mapping migration trends and consulting stakeholders, while keeping the MC’s objectives and guiding principles in mind. The Guidance also provides tools for ensuring that stakeholder consultations are inclusive and effective, as well as tools enabling careful engagement with MC objectives and standards. This includes a range of tools for ensuring a human rights-based, gender-responsive, and child-sensitive approach to Compact implementation. In this context, states will also benefit from the more detailed guidance on these issues available in Section IIIA of the Guidance. A human rights-based approach to migration governance is vital to a correct implementation of the MC. Indeed, implementation of the MC must never become an excuse to avoid ensuring UN human rights standards in general are correctly applied. The Guidance confirms this and highlights the practical dimension of human rights commitments in the context of MC implementation by suggesting some concrete actions, such as seeing all migrants as rights-holders, regardless of migration status; increasing knowledge of human rights law and ensuring this knowledge is brought to bear in all structures for planning and overseeing MC implementation; and bringing national law into conformity with international human rights standards.
Step 3: Design
Step 3 of the Guidance focuses on designing the MC implementation process in line with other policy processes. It encourages governments to conduct migration data mapping in order to establish an evidence base, and to identify legislation and policy which already engages with issues covered in the Compact. It then suggests brainstorming, in collaboration with stakeholders, where interventions will be needed to ensure implementation of MC standards, for example at the legislative or policy level. The interventions developed ‘should directly relate to the identified GCM objectives, as well as to the proposed actions associated with these objectives, as articulated in the GCM itself.’ Finally, the Guidance suggests ways to develop (structural, process, and outcome) indicators to measure progress on the chosen MC objectives, based, for example, on the Sustainable Development Goals (SDGs), or human rights principles. The Guidance points states towards additional guidance by OHCHR on measuring and implementing human rights indicators, which not only explains how to develop such indicators, but also provides illustrative indicators for selected human rights.
Step 4: Implementation
Following the design phase, the Guidance considers measures for implementation, such as developing concrete activities, setting up budgets and mobilising resources. This may entail developing an action plan, which describes and justifies chosen interventions, implementing partners, the tasks to be performed, the timescale foreseen, expected outcomes, possible challenges, required support activities and resources, funding arrangements, as well as monitoring activities. The action plan should be reviewed, in collaboration with stakeholders, in light of alignment with MC objectives and principles and in the context of the earlier needs assessment. Implementation also includes identifying potential funding sources for MC implementation and budgeting for the activities planned. Finally, it entails mobilising relevant implementing partners and resources. The Guidance makes clear that states should take OHCHR guidance on the relationship between public budgets and human rights into account.
Step 5: Monitoring, Evaluation, and Review
Once concrete implementation activities are underway, the Guidance suggests states utilise tools for monitoring progress at the national level. This includes setting up, or improving, reporting mechanisms and data collection procedures to gather information relevant to measuring progress in line with the indicators developed under Step 3. This is then to be evaluated in consultation with stakeholders. In this context, it should be noted that independent monitoring is key to a successful implementation plan. While the Guidance suggests that human rights reports should feed into the review process, the bodies charged with monitoring should have a human rights remit which informs the way in which monitoring takes place.
Step 6: Reporting
Following monitoring activities at the national level, the Guidance foresees a similar process at the international level. The Guidance introduces states to the review mechanisms foreseen in the MC – the nationals and regionals reviews, the International Migration Review Forum, and the UN Secretary general’s reports. The Guidance also explains how national contributions to these reviews should be prepared and makes suggestions as to their structure and content. In Section IIIA, the Guidance urges states to also participate in the Human Rights Council’s Universal Periodic Review (UPR) ‘to report on human rights-based implementation of the GCM and make recommendations to other States, incorporating the implementation of recommendations related to migrants into national GCM implementation planning.’
Commentary
The Guidance on implementation of the MC is a comprehensive, well-thought-out and complex document, which makes meaningful suggestions on how to achieve compliance with Compact standards. The above summaries do not reflect the great detail in which each of the six steps is explained; checklists and links to further guidance are provided. Yet, although the Guidance is aimed at ‘governments and all relevant stakeholders,’ in practice it is very much focussed on actions which governments can perform to ensure MC implementation. While the Guidance does emphasise the need to involve diverse stakeholders in all steps of implementation, ultimately, it allows governments to identify the relevant stakeholders, to decide which MC objectives are most important and should be prioritised, and to choose concrete activities for implementation. Further, while the Guidance does point states towards information on measuring and implementing human rights indicators, it still leaves it up to governments to develop indicators for measuring progress and to report on progress made.
While this is understandable to an extent, given that it is, indeed, primarily governments who have the power and means to effect change in line with the Compact’s standards, the Guidance thus effectively assumes that governments will approach implementation in good faith. In light of manifold instances of non-compliance with MC standards across the globe, however, it cannot be assumed that governments are, in fact, prepared to do anything more than pay lip service to the Compact commitments. This is why a stronger role for migrant and civil society organisations in Compact implementation is desirable. Additional guidance is needed on how such organisations can take a leading and independent role in highlighting non-compliance and how they can be given central role in the review process, for example at the International Migration Review Forum.
Further, even though the Guidance calls for aligning implementation with wider policy processes and related aims, such as meeting the SDGs or human rights standards, it mentions the MC’s sister Compact on Refugees only briefly. Given the thematic overlap between the two instruments, greater attention should be paid to areas where implementation engages both instruments, rather than viewing and implementing them in isolation. Again, migrant and civil society groups will be well-placed to identify examples of non-compliance with the standards in both Compacts.
Conclusion
Since the UNGA resolution on the format and organizational aspects of the international migration review forums explicitly foresees ‘participation of non-governmental stakeholders and representatives of local authorities, as well as of regional processes, platforms and organizations’ (para 21 d), more thought should be given to how such participation can be supported independently of the relevant organisations being consulted as ‘stakeholders’ during states’ implementation activities.
Leaving implementation and monitoring of the MC solely up to states risks undermining progress by allowing these states to paint a positive picture of compliance, while migrant and civil society organisations play a secondary role. However, it is precisely these organisations who will have knowledge of realities on the ground and are therefore able to challenge states’ account of their implementation activities, holding them to account for non-compliance with Compact standards.
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.
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