Implementing the Marrakesh Compact for Safe, Orderly and Regular Migration: commentary on the IOM Regional Meetings 11 – 12 November

By Professor Elspeth Guild, Queen Mary University of London

On 11 and 12 November 2020, IOM is hosting a regional meeting of UNECE countries (56 countries in Europe and North America) to examine progress on the Marrakesh Compact. Many states have submitted reports on their actions (though far from all in the region) and many IOs and other stakeholders have made submissions for consideration. In this blog, after examining the structure of the meeting, I will look specifically at the submission by the EU outlining how it has sought to comply with the Compact objectives.

In December 2018 the UN General Assembly adopted two ground-breaking instruments for migration management and refugee protection. They were termed ‘Compacts’ a category which had only rarely been used by UN bodies and which was specifically chosen to indicate that these are not treaties or conventions. They express the will of the parties but are not binding in international law.

The Refugee Compact was entrusted to UNHCR for implementation. It seeks to achieve four objectives: ease pressure on host countries; enhance refugee self-reliance; expand access to third-country solutions (ie resettlement) and support conditions in countries of origin and ensure that return takes place in conditions of safety and dignity.

The Marrakesh Compact has 23 objectives again seeking to achieve four goals: mitigate adverse drivers and structures which prevent people from staying in their countries of origin; reduction of risks and vulnerabilities for migrants in all stages of their migration by protecting and fulfilling their human rights; address the legitimate concerns of states and communities which have implications for and result from migration and create conducive conditions to enable migrants to enrich their societies. Responsibility for implementing the Marrakesh Compact was divided among numerous UN agencies and (all) states but with a special position for the International Organisation for Migration (IOM).

Preparations for the International Migration Review Forum

The IOM had at the time of the adoption of the Compact, only recently changed its director, an important event in an international organisation (IOs) characterised by fairly diffuse governance and with much project-based funding from states. Unlike IOs with core funding such as UNHCR, IOM was and continues to be highly dependent on ad hoc contributions and project funding.

With the Marrakesh Compact, IOM perceived a new opportunity for more international cooperation in the field of migration and has played an increasingly important role in the implementation of it. This has taken place through the UN Network on Migration of which IOM is now the coordinator. The Compact provides that every four years, starting from 2022, there will be an International Migration Review Forum. The purpose of this review forum is for states to take stock of how they are implementing the Compact.

Are states taking their 2018 engagements seriously?

Preparation of the 2022 Review Forum has already begun, largely organised by IOM. It has chosen a regional strategy, encouraging states to prepare reports on the actions which they have taken regarding implementation. This includes the organisation of regional meetings where states and stakeholders examine progress towards the objectives of the Compact. On 11 and 12 November 2020, IOM is hosting a regional meeting of UNECE countries (56 countries in Europe and North America) to examine progress on the Compact. Many states have submitted reports on their actions (though far from all in the region) and many IOs and other stakeholders have made submissions for consideration.

In 2017 and 2018, a group of academic experts from many countries came together to write blog posts on each of the 23 objectives, both examining their progression through the consecutive drafts of the Compact during the negotiations and at the end providing insights into how they should be implemented. These blogs are available at the Refugee Law Initiative.

Now from the perspective of two years, it is important to examine how seriously states have taken the engagements they made towards migrants and refugees in 2018. In this blog, after examining the structure of the meeting, I will look specifically at the submission by the EU outlining how it has sought to comply with the Compact objectives.

Two days, four roundtables

The IOM regional meeting has been divided into an introduction and four roundtables each designed around a cluster of Compact objectives to take stock of the current state of play.

In the first roundtable five objectives are under consideration: first, access to consular protection (objective 14), access to basic services (objective 15), inclusion and social cohesion (objective 16), diaspora engagement (objective 19), improving conditions of remittances (objective 20) and portability of social security entitlements. Of these the most contentious for some states has been access to basic services (including social services).

The Compact calls for access for all migrants irrespective of their immigration status. This was unpopular with states which have implemented policies to exclude migrants from services on the basis of their status. Among the most complex objectives, from a legal perspective, is portability of social security entitlements – and issue which continues to cause friction even within the European Union.

The second roundtable examines a different cluster of objectives: adverse drivers (objective 2), pathways to legal migration (objectives 3), fair and ethical recruitment (objective 6), predictable procedures in migration (objective 12), and mutual recognition of skills (objective 18). All of these objectives are fairly complex and their association with one another is not always entirely clear. Among the most important objectives for migrants is improving predictability of migration procedures, as in many countries the constant change of regulations and requirements is among the reasons why migrants fall into irregularly. This is closely linked with pathways to legal migration which can only be achieved where predictable procedures are secured. Fair and ethical recruitment is a field of particular importance to the International Labour Organisation which has undertaken extensive work in this area.

The third roundtable examines seven objectives: the entitlement to legal identity (objective 4), the duty to save lives (objective 8), combatting smuggling of migrants (objective 8), ending trafficking of migrants (objective 10), managing borders cooperatively (objective 11), diminishing detention of migrants (objective 13) and securing safe and dignified return and readmission (objective 21). Among these objectives, the most contentious during the negotiations was 13, detention. A strong lobby for a prohibition on the detention of minors did not succeed in persuading the negotiators to include a full prohibition but it did successfully push for strong limitations on detention. Some states in the UNECE region were particularly interested in objective 21, promoting return and readmission. However, this objective is particularly difficult to implement not least as what is actually at stake is expulsion of migrants and this issue is sensitive in many countries when those being expelled are their nationals.

The fourth roundtable examines five objectives: collection of data (objective 1), accurate information to migrants at all stages (objectives 3), reduction of vulnerabilities in migration (objective 7), elimination of discrimination on the basis of migratory status (objective 17) and strengthening international cooperation (objective 23). One of the risks which was highlighted by some NGOs and IOs in respect of objective 1 was how the data collected would be safeguarded as required by the (human) right to privacy (which includes a right to data protection). Indeed, some states expressly discriminate against migrants in the safeguarding of personal data in comparison with their own nationals. Similarly, while the objective of diminishing vulnerabilities of migration is very important for migrants, all too often those vulnerabilities are the result of states’ actions intended to diminish migration.

EU submission focuses on external dimension

Among the submissions received by IOM for this meeting is one by the EU’s External Action Service and Commission Services. It is interesting for a number of reasons first and foremost by the very selective approach of the submission regarding which objectives it would address. In general, the submission, which runs to four pages, focuses almost exclusively on the external dimension – what the EU has done to building partnerships with third countries to address migratory pressures.

Among the activities which it presents as Compact related are: the Joint Valletta Action Plan (designed in 2015) together with the Khartoum and Rabat processes for cooperation with states in Africa regarding migration (the objective of these processes is to encourage states in Africa to control migration so that unwanted migrants do not arrive in Europe). This is supplemented by reference to the EU Emergency Trust Fund for Africa which has made available euro 5 billion again focused on managing migration away from the EU. The same is true of the EU-Turkey Statement (again of 2016) referred to in the submission as a positive Compact compliant policy but which has been much criticised as a deal to pay Turkey to prevent (primarily Syrian) refugees from coming to the EU.

Of the six specific measures referred to in the submission, all of them are about diminishing migration to the EU or facilitating the expulsion of unwanted migrants from the EU. While there are a number of other paragraphs which refer to legal pathways or fair recruitment either they are unspecific regarding the actual efforts, or they refer to funds made available to third countries to assist migrants (there).

Impossible to produce a positive submission?

It must be remembered that the Marrakesh Compact was controversial in the EU and indeed, the government of one Member State fell over its support for the Compact. The movement against the Compact was mainly driven by the far right in Europe and while in the end most states voted for it some states abstained or even voted against it.

This controversy has undoubtedly had an impact on the kinds of measures which the EU has adopted in the migration field since that time, few of which have been particularly welcoming to migrants and some of which, like the recent alleged push backs of asylum seekers from Greece to Turkey by the EU border agency, Frontex, have been positively hostile.

In light of these activities by the EU in the field of migration, it must have been particularly difficult for its services to produce a submission for the IOM meeting which is not entirely negative. Perhaps the exercise itself of having to examine the EU’s activities in comparison with the 23 objectives of the Compact will encourage policy makers to accept that a more balanced approach to migration which acknowledges both the reality of migration and its benefits and the obligation to protect those who fear persecution and torture.