Mobility is a defining characteristic of our time. Worldwide, there are 244-million international migrants—persons living in a country other than the one they were born in—who have migrated for complex reasons, including a search for safety and a better life and reunion with family. More than 65.3-million of these migrants have been forcibly displaced. Some scholars call all people who leave their country of origin because of an existential domestic threat for which they have no access at home to remedy or resolution” survival migrants; I will refer to them as forced migrants. Often these migrants do not neatly fit into either “refugee” or “economic migrant” categories. However, ALL migrants are vulnerable, while travelling and upon reaching their destinations, and all have the same need for safe travel, protection from abusive smugglers and traffickers, and dignified treatment.
Increasingly, forced migrants are crossing borders through irregular migration channels, very often with the help of smugglers. The current large movements of people crossing the Mediterranean Sea to Europe include refugees, migrant workers escaping slave labour conditions, and unaccompanied minors, among others. Once in Europe they must confront a patchwork of member state responses with inconsistent application of existing legislation.
Rules governing the rights of refugees and migrants are captured through different sources of international law. This distinct categorization has been a source of fierce debate among EU member states. As well, the unprecedented number of people claiming asylum has overwhelmed the legal and social systems of some countries. At times new arrivals are seen by the general citizenry as posing a risk to national security or public order.
To help states respond to mixed-migration movements—and especially asylum seekers—in a “protection-sensitive” way, the United Nations High Commissioner for Refugees (UNHCR) in 2007 produced a 10-point action plan. However, states and other groups have long recognized that such mixed movements contain migrants with varying vulnerabilities and that, even when some of them are not covered by the 1951 Refugee Convention, they need protection. Not only migrants from Syria and Iraq, but people from countries like Eritrea, Iran, Afghanistan, South Sudan, and Somalia are fleeing conflict, generalized insecurity, economic decline, severe human-right abuses, and dictatorships.
In view of the upsurge of forced migrants, at the policy level there have been some new migration-related multilateral initiatives that are intended to improve and broaden the governance of international migration and provide protection to all migrants. These initiatives have been criticized for lacking specificity and not delivering on concrete commitments. But in the current political climate, in which states are reluctant to formally take up new commitments, perhaps the most realistic approach is to build consensus and encourage conversation about forced migrants at different international platforms. Such softer measures could promote the recognition of the rights of all vulnerable forced migrants.
GAPS IN PROTECTION MECHANISMS
All irregular migration is inextricably linked to human insecurity. Those deprived and unable to access legal migration channels are often exposed to penalties such as immigration detention, even though Article 31 of the 1951 Refugee Convention stipulates the non-penalization of irregular arrival. Some countries’ efforts to prevent irregular migration, such as a “push-back to sea” policy, can further jeopardize migrants’ well-being. Yet to date, the 1951 Refugee Convention and its 1967 Protocol, complemented now by regional instruments and customary law, have been the main legal tools used to protect these migrants.
International and regional human rights protection instruments legally require states to afford basic rights to migrants. For example, the European Convention of Human Rights and the EU’s Charter of Fundamental Rights apply to “everyone” within the jurisdiction of a state party to these instruments, irrespective of their legal status. But applying international norms and standards to forced migrants remains a work in progress.
There is no international organization solely dedicated to the protection and the operationalization of specific protection of forced migrants. Despite its expertise in displacement, UNHCR is unable to take on the task, which goes beyond its normative mandate to assist asylum-seekers and refugees. In recognition of this institutional gap, the UN General Assembly will formalize its relationship with the International Organization for Migration (IOM) at the UN summit for refugees and migrants in New York this September. The intention is to build an effective global response and institutional collaboration to migration challenges.
RECENT MIGRANT-RELATED MULTILATERAL INITIATIVES
In recent months, international organizations have taken up new initiatives to resolve the protection crisis of migrants and to remind states of their legal obligation to ensure the protection of human rights and dignified treatment of all displaced people. Initiatives include the State-led Migrants in Countries in Crisis initiative; Sustainable Development Goals (SDGs), in which migration is now enshrined as a core focus of the mainstream global development framework; the World Humanitarian Summit, the UN Secretary-General report In Safety and Dignity: Addressing Large Movements of Refugees and Migrants; and the forthcoming UN Summit for refugees and migrants.
Some critics are disappointed with the proposed outcomes, which they say have no enforcement mechanisms and have resulted in few additional resettlement pledges. While such claims have validity, critics have overlooked other relevant outcomes from recent high-level meetings, which could go a long way in promoting the recognition of rights of migrants, in particular those that fall outside of the Refugee Convention and whose vulnerability is beyond persecution – the distinguishing characteristic of refugee status under the 1951 Convention.
HOW TO MOVE FORWARD?
In the current political climate, states are flouting international conventions to which they have acceded and most are reluctant to formally commit to new multilateral migration agreements. As noted above, against this reality, the best way to promote the protection of forced migrants could be to broaden and build consensus and co-solidarity at international forums.
Because the development of effective governance of forced migrants is a long-term endeavour, it could be argued that such discussions are already having some mid-term effect. The discourse on a widening divergence of protection needs in the context of human mobility now goes well beyond a focus on refugees. And, as mentioned above, on September 19, 2016, the IOM will be formally recognized as a “related organisation” of the United Nations. Given the high number of people already participating in IOM-sponsored schemes and the organization’s growing membership, IOM needs to comply with UN legal protection principles and be accountable not only to its sponsoring member states, but to the global community in general.
These multilateral initiatives have focused international and national attention on migration in general and specifically on forced migration. Evidence from the migration influx to Europe reminds us that categories of “migrant” and “refugee” are not discrete. The report In Safety and Dignity, which states that refugees and migrants “face many common challenges and have similar vulnerabilities,” would suggest that the UN now acknowledges that the boundaries between the two groups are blurred. In theory, all migrants have rights under international human rights law, but in practice their rights and entitlements are often disregarded. This is particularly the case for all those migrants who do not qualify for protection as refugees.
Canada has a role to play. Global Affairs Canada notes that the time is right for Canada to “re-examine” and “re-imagine” its role in relation to the 2030 Agenda, a core focus of which is responding to humanitarian crises and the needs of displaced populations. Canada recognizes the plight of displaced persons, has fulfilled its commitment to resettle 25,000 Syrian refugees—a small fraction of those currently in need—and is committed to resettling more. Canada also aims to work with other countries to expand resettlement and build global migration capacity.
The different multilateral initiatives are signs that many actors in different contexts and places are searching for ways to increase international cooperation to respond to the needs of migrants. Over time, such actions can strengthen norms of protection for refugees and further develop norms of protection for all forced migrants.
At this stage, the new initiatives lack concrete commitments. But most goals and declarations are based on international human rights obligations. Such is the process of soft law development in the area of rights and protection of migrants. The protracted political process ought to be viewed as part of the compromise to bring more traction to global migration governance, which already has a legal basis, but so far has been poorly implemented by states. In the long run, these efforts give international groups and civil society further leverage to strengthen norms and practices of shared global responsibility for not only refugees, but all forced migrants. As Roger Zetter from Oxford University aptly states, “not every forcibly displaced person is a refugee, but all forcibly displaced people need some form of protection.” There is much to build on.