The United States recently was the sole "no" vote on a United Nations resolution that included the "Global Compact on Refugees". This follows last year's withdrawal from the UN's "Global Compact for Safe, Orderly and Regular Migration", a separate but related effort.
The Trump administration was right not to endorse the UN refugee compact; it is, in the words of a U.S. official, "inconsistent with U.S. immigration policy" and "simply not compatible with U.S. sovereignty." But the formal adoption of the refugee compact is not scheduled to take place until December 17 in Geneva. So there is still the danger that the administration might be persuaded to change its mind in response to tweaks to the text by the UN High Commissioner for Refugees (UNHCR). But no amount of tweaking can render this agreement a positive one for the United States.
A key problem with both the refugee and migration compacts is the misleading nature of their so-called non-legally-binding character. The fact is, these UN agreements create a new model for international lawmaking, one that will shape state behavior and create new norms that will eventually form the basis for a self-enforcing international human rights law.
- It redefines resettlement beyond urgent refugee protection to include responsibility-sharing to help host countries with the "burdens" they face;
- It increases resettlement admissions, and pushes for faster and more flexible means of resettlement processing;
- It facilitates access to family reunification and includes extended family members who would not otherwise be eligible under existing refugee resettlement mechanisms;
- It encourages other pathways for admission as "complements" to resettlement; and
- It gives official protection not just to refugees (i.e., those fall under the 1951 Convention Relating to the Status of Refugees), but to internally displaced and stateless people as well, widening the scope of international responsibility and burden-sharing to millions more.
None of these expansions is consistent with U.S. policy. This administration has been clear about how best to help refugees, and it is not through expanded resettlement. As President Trump said in his speech before the UN in September:
[T]he most compassionate policy is to place refugees as close to their homes as possible to ease their eventual return to be part of the rebuilding process. This approach also stretches finite resources to help far more people, increasing the impact of every dollar spent.
Or, as the December 2017 National Security Strategy puts it, "We will support displaced people close to their homes to help meet their needs until they can safely and voluntarily return home." (p. 42)
Beyond the issues listed above, endorsing the UN Global Compact on Refugees would mean committing as well to numerous international laws, treaties, and UN resolutions embedded (almost buried) in it, including tackling climate change by supporting the Paris agreement, abiding by the principle of non-refoulement, and reiterating migrants' rights to seek asylum in any circumstance.
Signing on to this compact would also be handing the reins of U.S. refugee and asylum policy to the UNHCR, the world body's refugee agency. The UNHCR has criticized Trump administration policy, most recently the asylum rule change in response to the Central American migrant caravan. It has also sided with the UN Relief and Works Agency for Palestine Refugees (UNRWA), in backing UNRWA's definition of Palestinian refugees as based on descent, in opposition to the U.S. government's stand.
The U.S. Vote and Reactions to It
The UNHCR omnibus resolution is generally approved by consensus. The resolution this time contained the Global Compact on Refugees. The United States called for a recorded vote and voted "no"; as noted in the UN coverage of the vote, "[t]he representative of Canada expressed her dismay that a vote was called for the first time ever."
The same UN coverage noted that:
The representative of the United States, speaking in explanation of vote, said her Government had called for a vote and voted against the draft, as its concerns remained unaddressed. Expressing support for many of its primary objectives, she said the United States is the largest humanitarian aid donor. She voiced regret that the draft contains elements that are inconsistent with United States immigration policy.
There was no mention of the U.S. vote in the subsequent UNHCR statement. Nor does there seem to have been much negative reaction from refugee advocacy organizations that are often very critical of the Trump administration's policies. Perhaps this radio silence is a sign of UNHCR's belief that it can still get the United States to come on board. Negotiations could be taking place as we speak over tweaking some of the compact's language to appease the U.S. apprehensions.
In fact, a statement by a Norwegian refugee activist confirms these suspicions:
In the US explanation of their vote they reiterated their "support for the Compact's primary objectives ... . NRC [the Norwegian Refugee Council] welcomes the opportunity to work with the US delegation to address any impediments ahead of the UN General Assembly's formal adoption of the GCR next month.
Nesting Dolls of Commitments
Numerous international instruments and guidelines are referred to in the refugee compact. The image that comes to mind here is one of Russian nesting dolls; smaller ones keep popping out just when you think you've opened them all. I will not go through each and every doll, but uncovering just a few will reveal how uninformed governments can easily get caught in this refugee compact's quicksand.
Let's start by opening these dolls:
The New York Declaration for Refugees and Migrants. The Global Compact on Refugees is the practical application of the comprehensive refugee response framework set out in the 2016 New York Declaration for Refugees and Migrants, a document already deemed "inconsistent with U.S. immigration policy" by the U.S. Mission to the UN last year. The compact's text refers to the New York Declaration as an "an integral part of the global compact". (p. 5). So signing on to the refugee compact means embracing the New York Declaration.
The declaration calls for, among other things, the prompt reception for all persons arriving in a country, whether refugees or migrants; reaffirms respect for the institution of asylum and the right to seek asylum; reaffirms also, in line with the principle of non-refoulement, that individuals are not to be returned at borders; provides legal stay to those seeking protection as refugees; reviews policies that criminalize cross-border movements; pursues alternatives to detention; and asks for sufficient funding for the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) — the same organization the United States recently decided to stop funding.
Following unanimous adoption of the New York Declaration for Refugees and Migrants by UN member states (including the United States under the Obama administration) in September 2016, two separate UN compacts were set in motion: the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees.
The Trump administration withdrew last year from the migration compact (without at that time withdrawing from the refugee one). The reasoning was shared in a U.S. Mission to the United Nations press release:
U.S. participation in the Compact process began in 2016, following the Obama Administration's decision to join the UN's New York Declaration on migration. The New York Declaration contains numerous provisions that are inconsistent with U.S. immigration policy and the Trump Administration's immigration principles.
Nikki Haley, then-U.S. permanent representative to the United Nations, also rejected the global outlook on immigration policies promoted by the New York Declaration:
[O]ur decisions on immigration policies must always be made by Americans and Americans alone. We will decide how best to control our borders and who will be allowed to enter our country. The global approach in the New York Declaration is simply not compatible with U.S. sovereignty.
But the New York Declaration is the basis for both compacts, setting the grounds for two separate sets of commitments for migrants and refugees. This is clearly stated in the declaration text:
Annex I to the present declaration contains a comprehensive refugee response framework and outlines steps towards the achievement of a global compact on refugees in 2018, while annex II sets out steps towards the achievement of a global compact for safe, orderly and regular migration in 2018. [p. 5]
So, if the declaration's global approach is not compatible with U.S. sovereignty, why only withdraw from the migration compact that stems from it and not from the refugee one as well?
The United States is not the only country to face this question. Since the U.S. withdrawal from the migration compact last year, eight other countries (so far) have followed suit: Australia, Israel, Hungary, the Czech Republic, Slovakia, Bulgaria, Poland, and Austria. (Switzerland and Italy will not be attending the conference where the migration compact will be formally adopted, deferring a decision until their parliaments debate it.) Whether these countries will follow the logic of the matter by also withdrawing from the refugee compact is as yet unknown.
Excerpts from the text of the refugee compact, and the refugee portions of the New York Declaration, make clear their challenge to national sovereignty.
First, from the New York Declaration (all emphases are added):
Underlining the importance of a comprehensive approach to the issues involved, we will ensure a people-centred, sensitive, humane, dignified, gender-responsive and prompt reception for all persons arriving in our countries, and particularly those in large movements, whether refugees or migrants. [p. 5]
Reaffirming that all individuals who have crossed or are seeking to cross international borders are entitled to due process in the assessment of their legal status, entry and stay, we will consider reviewing policies that criminalize crossborder movements. We will also pursue alternatives to detention while these assessments are under way. [p. 7]
We wish to see administrative barriers eased, with a view to accelerating refugee admission procedures to the extent possible." [p. 13]
We intend to expand the number and range of legal pathways available for refugees to be admitted to or resettled in third countries. [p. 14]
We will consider the expansion of existing humanitarian admission programmes, possible temporary evacuation programmes, including evacuation for medical reasons, flexible arrangements to assist family reunification, private sponsorship for individual refugees and opportunities for labour mobility for refugees, including through private sector partnerships, and for education, such as scholarships and student visas. [p. 14]
States aim to provide resettlement places and other legal pathways on a scale that would enable the annual resettlement needs identified by the Office of the United Nations High Commissioner for Refugees to be met. [p. 20]
And from Annex I of the New York Declaration, which lays out the "comprehensive refugee response framework" (all emphases added):
Third countries would: (a) Consider making available or expanding, including by encouraging private sector engagement and action as a supplementary measure, resettlement opportunities and complementary pathways for admission of refugees through such means as medical evacuation and humanitarian admission programmes, family reunification and opportunities for skilled migration, labour mobility and education. ... (c) Consider broadening the criteria for resettlement and humanitarian admission programmes in mass displacement and protracted situations, coupled with, as appropriate, temporary humanitarian evacuation programmes and other forms of admission. (p. 20)
Host States, bearing in mind their capacities and international legal obligations, in cooperation with the Office of the United Nations High Commissioner for Refugees, the United Nations Relief and Works Agency for Palestine Refugees in the Near East, where appropriate, and other United Nations entities, financial institutions and other relevant partners, would: (a) Provide legal stay to those seeking and in need of international protection as refugees. [pp. 19-20]
And from the refugee compact itself (all emphases added):
Contributions will be sought from States, with the assistance of relevant stakeholders to establish, or enlarge the scope, size, and quality of, resettlement programmes. [p. 21]
They could, where appropriate, also take into account forced internal displacement that may result from a particular situation. [p. 13. In other words, the compact's reception and admission mechanisms apply to internally displaced persons as well.]
Internally Displaced Persons. The compact's expansion of protection beyond refugees to "internally displaced persons" and others is worth exploring. To that end, a 2017 article by Patrick Wall on the need to add a new link to the existing modes of international refugee protection is enlightening. Wall, who works with the UNHCR in Geneva, was tasked to "develop and execute UNHCR's strategy for the 'global compact on refugees.'" In his article, he argues that the time has come for "the first two links in the chain of the international refugee protection regime — the 1951 Convention and the 1967 Protocol — to be joined by a third. This third link ... should take the form of a mechanism designed to distribute more equitably between States the responsibility to provide protection and durable solutions for refugees."
That third link is the Global Compact on Refugees, which would provide protection not just to those who meet the definition of refugee as defined in the convention (and in U.S. law), but to internally displaced people as well. According to Wall, "Despite the fact that UNHCR adopts a flexible interpretation of the Refugee Convention definition in art 1A(2), it is widely recognized that this definition does not cover a wide range of people who have been forced to flee their homes and who are deserving of protection."
He writes that such a new framework is needed to:
Allow for the sharing of the responsibility to provide protection to some of those in need of it who do not meet the definition of "refugee" in the Convention, such as internally displaced persons, or those fleeing the effects of climate change and disasters. This would not involve a renegotiation of the refugee definition in the 1951 Convention, but merely an expansion of the scope of the responsibility-sharing efforts undertaken in the context of the Framework Convention. [Emphasis added.]
Consequently, protection for internally displaced persons is called for in the Global Compact on Refugees:
While the CRRF [the New York Declarations comprehensive refugee response framework] relates specifically to large refugee situations, population movements are not necessarily homogenous, and may be of a composite character. Some may be large movements involving both refugees and others on the move; other situations may involve refugees and internally displaced persons; and, in certain situations, external forced displacement may result from sudden-onset natural disasters and environmental degradation. [p. 5, emphasis added.]
The compact's reception and admission mechanisms apply to internally displaced persons as well: "They could, where appropriate, also take into account forced internal displacement that may result from a particular situation." (p. 13)
Furthermore, footnote 42 on p. 21 states the following: "See also A/RES/54/167 on protection of and assistance to internally displaced persons, and subsequent General Assembly resolutions on this subject, including A/RES/72/182." That last reference is to a 2017 General Assembly resolution on the "Protection of and assistance to internally displaced persons".
All this means that by signing on to the refugee compact, the United States would be committing itself to providing protection not only to refugees but to internally displaced persons, stateless persons, and those who are externally displaced from sudden-onset natural disasters and environmental degradation as well. None of this is provided for in U.S. law.
Dolls within Dolls. The New York Declaration is not the only UN agreement embedded in the Global Compact on Refugees. The refugee compact describes itself as guided by "relevant international human rights instruments" (listed on pp. 3-4), most of which the United States has refused to ratify, such as the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities.
The compact further says it is "complemented" by other international agreements that the United States has also not ratified, such as the Convention on the Reduction of Statelessness and the Convention relating to the Status of Stateless Persons.
The compact also says it is complemented by UN resolution A/RES/71/127 7 on "Strengthening of the coordination of emergency humanitarian assistance of the United Nations", adopted by the General Assembly in 2016 without a recorded vote (i.e., the U.S. approved). That resolution states:
Expressing its deep concern about the increasing challenges faced by Member States and the United Nations humanitarian response system and their capacities as a result of the consequences of disasters, including those related to the continuing impact of climate change ... . Welcoming the Paris Agreement and its early entry into force, encouraging all its parties to fully implement the Agreement, and parties to the United Nations Framework Convention on Climate Change that have not yet done so to deposit their instruments of ratification, acceptance, approval or accession, where appropriate, as soon as possible. [p. 3]
2030 Agenda for Sustainable Development. Another doll nested within the refugee compact is the United Nations 2030 Agenda for Sustainable Development. The compact calls on the international community "to support efforts to alleviate poverty, reduce disaster risks, and provide development assistance to countries of origin, in line with the 2030 Agenda for Sustainable Development and other relevant frameworks." (p. 5, emphasis added.) Among the sustainable development goals included in that agenda is to "take urgent action to combat climate change and its impacts." As part of this, a Climate Summit is set to take place in September 2019 "to bring climate action to the top of the international agenda."
Another inherent component of the 2030 Agenda is migration. Migration's relevance to the Sustainable Development Goals is explicit: "The 2030 Agenda for Sustainable Development recognizes for the first time the contribution of migration to sustainable development." Target 10.7 is:
Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well- managed migration policies…By 2030, reduce to less than 3 per cent the transaction costs of migrant remittances and eliminate remittance corridors with costs higher than 5 per cent. [Emphasis added.]
Backing the UN Palestinian Refugee Agency. The United States decided this summer to cut off funding to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the special, Palestinians-only refugee agency, separate from the UNHCR. The reason for the dispute is that UNRWA counts as "refugees" the descendants of Palestinian Arabs "who were displaced from the region in the 1948 and 1967 wars, as well as their descendants — even if they possess the citizenship of the Arab country to which their ancestors fled." (The UNRWA count of such "refugees" is now five million.) The U.S. rejects such refugee determination based on descent.
But the New York Declaration, embedded as part of the refugee compact, specifically endorses funding for UNRWA:
We note with concern a significant gap between the needs of refugees and the available resources ... . United Nations entities such as the Office of the United Nations High Commissioner for Refugees and the United Nations Relief and Works Agency for Palestine Refugees [UNRWA] in the Near East and other relevant organizations require sufficient funding to be able to carry out their activities effectively and in a predictable manner." [p. 15.]
Beyond the funding issue, the UNHCR, which calls the shots in the refugee compact, backed UNRWA's refugee definition in explicit opposition to the U.S. position.
International Recommendations on Refugees Statistics. The gathering of data plays a big role in the text of the Global Compact on Refugees. This data collection is to be based on the guidelines in International Recommendations on Refugees Statistics (IRRS). Those guidelines, nested in the refugee compact, take specific positions not necessarily consistent with U.S. policy. For instance, the guidelines describe the immigration of family members of refugees and asylum seekers as a "right":
Respect for the right to family unity requires not only that States refrain from action which would result in family separations, but also that they take measures to maintain the unity of the family and reunite family members who have been separated. ... In this context, family reunification in the country of asylum is often the only way to ensure respect for a refugee's right to family unity, since he or she cannot return to the country of origin or habitual residence. [pp. 21-22, emphasis added.]
There are, no doubt, more dolls to be uncovered in the Global Compact on Refugees. But the foregoing examination is enough to make clear that the United States was right to vote against its adoption, and should not backtrack.
As I was writing this, I came across the reaction of Louise Arbour, the United Nations special envoy for international migration, to countries exiting the Global Compact for Migration, and her comments are relevant to the refugee compact as well. Arbour suggested that "countries quitting the UN's first-ever migration agreement would have to answer for their turnaround." I guess words like "state sovereignty", "non-legally-binding", "taking into account national realities", etc. were just selling points.