The Global Compact on Refugees: A New Model for International Lawmaking

Perhaps the president missed the "global" aspect of this UN initiative.

By Nayla Rush on October 26, 2018

Last month I drew attention to the Trump administration's continuing support of the UN's Global Compact on Refugees, setting the stage for a new global approach to refugee assistance that is, for the most part, in total contradiction with this administration's refugee policies.

The compact, we are told, is not legally binding, leaving state sovereignty intact. But those who, either genuinely or conveniently, believe in the non-binding character of this international agreement are misguided. This UN compact will allow for the creation of 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. Generating political will and gathering data that supports the compact's objectives are key to the success of this global compact. Civil society, a key actor in the compact's process, will pressure states to uphold this international commitment.

The Trump administration withdrew last year from the Global Compact for Safe, Orderly and Regular Migration a separate but related effort. In announcing the withdrawal, then-U.N. Ambassador Nikki Haley said it was "simply not compatible with U.S. sovereignty." The migration compact and its sister compact on refugees were set in motion under the Obama administration in October 2016, following the adoption by UN members (including the United States) of the New York Declaration for Refugees and Migrants.

Speaking before the United Nations General Assembly last month, President Trump explained why the United States will not be participating in the Global Compact on Migration:

We recognize the right of every nation in this room to set its own immigration policy in accordance with its national interests, just as we ask other countries to respect our own right to do the same — which we are doing. That is one reason the United States will not participate in the new Global Compact on Migration. Migration should not be governed by an international body unaccountable to our own citizens. [All emphases here and below are added.]

But, barring a last-minute decision to change course, the United States is expected to officially endorse the Global Compact on Refugees later this year in Geneva. Does this mean U.S. refugee policy (unlike immigration policy more generally) should be governed by an international body unaccountable to our own citizens?

In theory, both UN compacts are not legally binding, which could explain the Trump administration's decision to continue its participation in the refugee one. (Why not both, or neither?) But this administration is overly optimistic to think it can still hold the reins of its own refugee policy after endorsing this UN refugee compact.

The United Nations can achieve effective agreements without the binding force of law, according to Jill Goldenziel, an expert on international law, human rights, and the intersection of international and domestic constitutional law. Goldenziel followed the development of both UN compacts up close and participated in the process to create the Global Compact on Migration. In a blog post last year on "How To Help the Migration Crisis — and Make International Law" she explained how these global compacts can "largely be enforced through international and domestic political processes."

Here's how this could play out on the political front.

According to Volker Türk, a top official with the UN High Commissioner for Refugees (UNHCR, the world body's refugee agency), the refugee compact's adoption by the UN General Assembly later this year will be a demonstration of "a very strong political commitment of all 193 Member States to implement it, even if it's not legally binding."

As Goldenziel writes, "[g]enerating political will is the key to the success of the Global Compacts and to their ability to become entrenched as international law in the long term." States will only uphold the compacts if their citizens are convinced that living up to the compacts' commitments is beneficial to them. "Only then", she adds, "will citizens and voters support legislation or policies that ensure the state will uphold those commitments."

Advocates of the compacts can push to support them through political processes in their own states. Data collection is critical in this instance to convince governments and citizens that upholding the compacts is in their best interests. According to Goldenziel, specific "evidence" gathered will prove that migrants and refugees are positive additions to countries that welcome them.

Data gathering plays a big role in the text of the Global Compact on Refugees: "Reliable, comparable, and timely data is critical for evidence-based measures to… address the impact of large refugee populations on host countries in emergency and protracted situations; and identify and plan appropriate solutions." The compact will set up a "global academic network on refugees, displaced and stateless issues. This will involve "universities, academic alliances, and research institutions, together with UNHCR and other relevant stakeholders [refugees themselves], to facilitate research, training and scholarship opportunities which result in specific deliverables in support of the objectives of the global compact."

But who will decide which researchers, universities, organizations, refugees, etc. are to participate in this global academic network? Probably the UNHCR, which proposed the refugee compact to begin with. Supportive scholars like Goldenziel would be tasked with collecting "data and evidence" aimed at underlining the benefits of the compact and achieving its targets. So, this means that (I'm caricaturing here but the point needs to be made), the UN will commission people to prove that the UN is doing a good job and needs to maintain its global handle on refugee and migrant issues.

Civil society can play a decisive role at enforcing the compacts. According to Goldenziel, social science research "shows that civil society is critical to making international human rights law work." Citizens, migrants, refugees, international non-governmental organizations (INGOs) and non-governmental organizations (NGOs) can lobby their states to uphold their commitment to the global compacts. These groups can mobilize to, in Goldenziel's words, "demand enforcement of individual rights." Moreover, academics, lawyers and NGOs can educate migrants and refugees about "the commitments that states owe them." They can also help them protect their rights in court.

Data gathered by the "global academic network" described above can be of great use to civil society. Indeed, civil society can be an efficient source of pressure if armed with data to provide states and their citizens with "proof" of the compacts' benefits. Through all these efforts, Goldenziel concludes, "civil society can mobilize individuals to pressure their states to uphold their international commitments."

The Global Compact on Refugees views civil society as a key partner to implement its goals. Here are a few excerpts that refer to the role of civil society in the compact:

  • Page 3: "[T]he global compact on refugees intends to provide a basis for predictable and equitable burden- and responsibility-sharing among all United Nations Member States, together with other relevant stakeholders as appropriate, including but not limited to: international organizations within and outside the United Nations system…; other humanitarian and development actors…; civil society, including faith-based organizations; academics and other experts; the private sector…; and refugees themselves (hereinafter "relevant stakeholders").
  • Page 11: "[C]ivil society organizations, including those that are led by refugees, women, youth or persons with disabilities, and those operating at the local and national levels, will contribute to assessing community strengths and needs, inclusive and accessible planning and programme implementation, and capacity development, as applicable."
  • Page 21: "Contributions will be sought from States, with the assistance of relevant stakeholders (footnote 45: This could include UNHCR, IOM, civil society organizations, community groups, faith-based organizations, academia, individuals and the private sector), to establish, or enlarge the scope, size, and quality of, resettlement programmes."
  • Page 22: "The three-year strategy on resettlement will also include complementary pathways for admission, with a view to increasing significantly their availability and predictability. Contributions will be sought from States, with the support of relevant stakeholders (footnote 49: Including civil society, faith-based organizations, the private sector, employers, international organizations, individuals and academia)."

To summarize, let us go back to Goldenziel:

The Global Compacts represent a new form of international agreement. They are not international law in themselves. However, they are negotiated by states, and will be adopted by the General Assembly as something more than a mere declaration. If the Global Compacts succeed, they will shape state behavior, which will create new norms that will eventually become entrenched as international law... The end result could be a victory not only for the rights of migrants [and refugees], but also for the creation of self-enforcing international human rights law.

In a rally in Texas this week, President Trump denounced the "globalist" approach while embracing the "nationalist" one, telling his audience: "You know what a globalist is, right... A globalist is a person that wants the globe to do well, frankly not caring about our country so much... We can't have that... You know what I am? I'm a nationalist... Use that word."

Perhaps the president missed the "global" aspect of the UN Global Compact on Refugees. But there's still time to change course.