Posted 15/03/2019 by Henry Sherrell
In December 2018, 164 countries adopted the Global Compact for Safe, Orderly and Regular Migration (the Compact) in Marrakech, Morocco. Australia was one of 17 countries to either vote against or abstain from the Compact at the United Nations General Assembly vote on 19 December 2018. This FlagPost outlines the development of the Compact and explores why Australia abstained from the vote.
What is the Global Compact?
The Compact is a ‘cooperative framework’ that participating States intend to foster ‘international cooperation among all relevant actors on migration, acknowledging that no State can address migration alone, and uphold … the sovereignty of States and their obligations under international law’ (see paragraph seven).
The Compact is the first United Nations (UN) framework for international cooperation on general migration (as opposed to the more specific Refugee Convention). The Compact has 23 objectives and is founded on a basis of human rights principles. The objectives (listed in paragraph 16 of the Compact), are wide-ranging and address such matters as data collection, drivers of migration, proof of legal identity, ethical recruitment and working conditions, smuggling/trafficking of persons, managing borders, eliminating discrimination, skills development and recognition, and remittances.
The UN Secretary-General, António Guterres, said ‘Countries have the right and even the responsibility to determine their own migration policies, and to responsibly manage their borders … [b]ut they must do so in full respect for human rights.’
What was the process?
In September 2016, in the wake of increasing numbers of people moving across borders, the then United States President, Barack Obama, convened a Refugee Summit in New York. He described the refugee crisis as ‘one of the most urgent tests of our time—our capacity for collective action.’ This led to the unanimous adoption of the New York Declaration for Refugees and Migrants at the UN, calling for two distinct Global Compacts, on migration and on refugees (noting these Compacts are not dependent on each other). The Global Compact on Refugees was also adopted by the UN General Assembly in December 2018.
Following the New York Declaration, the Global Compact on Migration began with a consultation period and stocktaking phase before countries formally negotiated a draft document over six separate rounds. In the sixth and final round of negotiations, a final draft document was agreed. The process was overseen by the UN Special Representative for International Migration, Louise Arbour.
At the conclusion of the negotiation phase, Australia’s Ambassador and Permanent Representative to the United Nations, Gillian Bird, noted Australia had ‘engaged in good spirit during these negotiations because we recognise – and have been well-served by – the significant social and economic benefits of migration.’
Australia’s position
In early August 2018, after the release of the agreed final draft Compact, Home Affairs Minister, Peter Dutton, said Australia would not sign the Compact ‘in its current form.’ He said ‘We’re not going to sign a deal that sacrifices anything in terms of our border protection policies … We’re not going to surrender our sovereignty – I’m not going to allow unelected bodies dictate to us, to the Australian people.’
It was reported in early August 2018 that Australian government officials, as part of the negotiations, advocated for a ‘clear(er) distinction between regular and irregular migrants’. In addition, a statement from the Australian negotiating team warned of ‘prescriptive commitments that pose real risks to the sovereign right of states to manage and determine border policies.’
On 21 November 2018, the Prime Minister, Scott Morrison, alongside Home Affairs Minister Dutton and Foreign Affairs Minister Payne formally announced Australia would not sign the Compact, arguing it would ‘compromise our successful way of doing things,’ and the Compact would ‘risk encouraging illegal entry’. In contrast to the Government, the Labor Opposition committed at their National Conference in December 2018 to refer the Compact through the relevant parliamentary committee process.
A number of commentators say Australia’s decision not to endorse the Compact will frustrate future action, on matters such as building capacity to shape regional migration governance and engaging with other countries to promote orderly migration.
Stumbling block
A number of countries that voted against or abstained from the Compact did so arguing it infringed on national sovereignty and the right to determine who enters their country. Then United States Ambassador to the UN, Nikki Hayley, described the Compact as not compatible with US sovereignty and said ‘We will decide how best to control our borders and who will be allowed to enter our country.’
Clearly this was an important issue during the negotiation phase. Paragraph 15 of the Compact includes the following on ‘National Sovereignty’:
The Global Compact reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law. Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact, taking into account different national realities, policies, priorities and requirements for entry, residence and work, in accordance with international law.
The reference to ‘international law’ is a potential sticking point. In Australia’s case, there was concern this reference would impact on key border protection policies, such as Operation Sovereign Borders. For example, Objective 13 of the Compact outlines ‘that immigration detention is not promoted as a deterrent or used as a form of cruel, inhumane or degrading treatment to migrants, in accordance with international human rights law’.
UN Special Representative Louise Arbour took a different view to that of States like Australia and the US, saying that perhaps the most important fundamental principle of the Compact was ‘states have the prerogative, in fact the responsibility to control their territory, to control their borders, to determine which of non-nationals will have the right to enter, stay on their territory, under what terms and conditions.’ A number of countries also adopted this position, with Denmark’s representative to the General Assembly at the UN arguing the Compact creates no new legal requirements nor further existing treaty commitments.
Professor Jane McAdam, Director of UNSW’s Kaldor Centre for International Refugee Law agrees, saying the Global Compact ‘is not a treaty’ and ‘it does not create any new legal obligations’. However journalist Chris Merritt notes reporting requirements for the Compact could generate adverse findings for Australia based on existing legislation and policy decisions, specifically in relation to Objective 13 on mandatory detention.
Next steps
The Compact has been hailed as a strong endorsement of multilateral commitment on migration, in a time when such action is rare. However with no new binding commitments and without a treaty mechanism, time will tell whether the Compact proves to be effective at fostering cooperation between countries on migration policy.