This week, the Trump Administration signaled that the United States would withdraw from the negotiations around the United Nations’ Global Compact on Migration. This compact, one of two, is an outcome of the New York Declaration for Refugees and Migrants which was passed by the UN’s General Assembly in September 2016. The decision was timed to coincide with a major international global conference on migration which has occurred this week in Puerto Vallarta, Mexico.
Perhaps marking how little this compact process is understood, this decision was not widely covered, and a number of media outlets that did report it incorrectly stated that the United States was both withdrawing from the Global Compact on Migration and a second, parallel Compact on Refugees.
This confusion stems in part from the US announcement, which argued that “New York Declaration contains numerous provisions that are inconsistent with U.S. immigration and refugee policies and the Trump Administration’s immigration principles” and with US United Nations Ambassador Nikki Haley’s statement that the “global approach in the New York Declaration is simply not compatible with U.S. sovereignty.” A State Department spokesperson has since clarified that the US has only decided to end participation in the Compact on Migration, and that “the Global Compact on Refugees is a separate process with separate intended outcomes.”
The compacts, it is important to note, will in no way affect individual state’s policies without their consent. As the UN Spokesperson noted following the withdraw, this decision “should not disrupt the clear, unanimous outcome of the New York Declaration for such a global compact – which will be non-legally binding, grounded in international cooperation and respectful of national interests.” Instead, the two compacts represent an opportunity for the international community to strength governance around the issues of migration and refugees.
While the Puerto Vallarta meeting is seen as a critical step in advancing the migration compact, the refugee compact negotiations have been advancing swiftly, supported by the work of the United Nations High Commissioner for Refugees (UNHCR). UNHCR is basing those negotiations around a new Comprehensive Refugee Response Framework (CRRF) with four clear aims:
Ease pressure on countries that welcome and host refugees
- Build self-reliance of refugees
- Expand access to resettlement in third countries and other complementary pathways
- Foster conditions that enable refugees voluntarily to return to their home countries.
Within that fourth aim, UNHCR has identified the need for specific attention to rebuilding, within countries of origin, conditions conducive to voluntary and sustainable return, including by providing technical, financial and other support to countries of origin to help improve functioning of state institutions and the rule of law and to build institutional readiness, and to include returnees and reintegration in national development plans and in the UN Country Team frameworks.
However, this fourth aim has also been critiqued because, while it is focused on refugees, it ignores another, even larger, group of forced migrants: the internally displaced. The New York Declaration had recognized the “very large number of people who are displaced within national borders and the possibility that such persons might seek protection and assistance in other countries as refugees or migrants” and noted “the need for reflection on effective strategies to ensure adequate protection and assistance for internally displaced persons and to prevent and reduce such displacement.” But the Declaration took no further steps to incorporate them. Ambassador David Donoghue, the Former Permanent Representative of Ireland to the United Nations and the chair of the negotiation process for the Declaration, noted in a keynote address at the Kaldor Centre for International Refugee Law that this was because the United States did not take the opportunity to raise the issue during early negotiations and, as such, they were blocked by other states including Russia and China, from bringing IDP issues into the Resolution.
And yet, the IDP-refugee relationship is a dynamic one in three senses. The first is that there is a strong correlation between IDP and refugee movements- the countries that produce the most refugees also tend to produce the most IDPs such as Syria, South Sudan, and Afghanistan.
The second is that the IDP-refugee relationship is dynamic at the individual level, with the decisions forced migrants make, while bound up in macro-level factors, directly influencing their decisions to flee within their own country, to seek asylum in another country, but also the decision whether to return.
Finally, and as the New York Declaration acknowledged, IDPs can become refugees. But returning refugees, too, can easily become IDPs following their return. Globally, however, due to a lack of data we have no clear picture of how often either IDPs becoming refugees, or returning refugees becoming IDPs, occurs. As the Internal Displacement Monitoring Centre (IDMC) noted in their annual report this year, “there is currently not enough research or data to understand the exact relationship between internal displacement, cross-border movement and return.” It is clear that the risk of returning refugees becoming IDPs significantly increases following unprepared, involuntary, or premature returns.
To give one example, of Afghanistan, alongside approximately 372,000 refugees whose returns were supported by UNHCR with a $400 cash grant, a study by Belquis Ahmadi and Sadaf Lakhani for the US Institute of Peace found that there were an additional 682,000 who engaged in spontaneous returns from Pakistan and Iran, driven primarily by increasingly strict restrictions being placed on refugees by Pakistani authorities. As they note, “returnees are entering a country wracked by violence, economic instability, and lack of basic services in most part of the country,” all dynamics likely to trigger internal displacement.
These problems have been acknowledged. Thanks to the work of IDMC, two weeks ago at the UNHCR-hosted thematic discussion on solutions as part of the wider refugee compact, a recommendation was endorsed that countries of origin for returning refugees needed to integrated the Guiding Principles on Internal Displacement into their national law and policy, and that members states, UN agencies, and their partners needed to expand the collection of data on the entire displacement continuum. At this stage, this simply represents an endorsement of these ideas and a recommendation for these two issues to be retained within the Global Compact’s program of action.
This is a positive step forward. The Guiding Principles, while soft law, provide a clear framework for the return, resettlement, and reintegration of IDPs, and note explicitly that competent authorities have the primary duty to establish conditions which allow IDPs to return home voluntarily or to resettle or reintegrate elsewhere in the country. We have seen significant moves forward on these issues at the regional level, including the African Union’s 2009 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention), which entered into force in 2012, adopts wholesale the IDP definition in the Principles and the rights established within them. At the domestic level, 40 countries with present or past IDP situations have adopted domestic legislation or policies specifically on IDPs issues.
But simply introducing such policies is not enough. I have recently completed a review of the 69 legislative instruments and policies which have been passed by these 40 states up to the middle of this year. While there is clear acceptance that IDPs require some form of international protection, these laws and policies are less clearly linked to the Guiding Principles. Only 30 explicitly mention the guiding principles, and only 19 explicitly endorse its IDP definition. In fact, most of these law and policies either do not provide a definition or introduce a more restrictive definition than that of the principles.
Further, less than a third of the policies have been clearly implemented without significant problems. More often, ad hoc or limited implementation means that IDPs are not adequately covered and that even when problems are correctly identified, there are no steps taken to fix them, or that good faith efforts to introduce laws and policies are stymied by domestic opposition. In eleven cases, the laws or policies have never been implemented, either remaining in draft form for years or simply reflecting aspirational claims which the government was unable or unwilling to follow.
International support for governments to adopt IDP policies and laws as part of the Global Compact on Refugees is an important first step. But international actors also need to seek to support and create clear accountability mechanisms at the national and international levels to assist governments where necessary, and to hold them to account when progress is not made.
Phil Orchard is the Research Director of the APR2P and a Senior Lecturer in International Relations and Peace and Conflict Studies at the University of Queensland. He tweets @p_orchard. This is a modified version of a talk he gave at the Kaldor Centre for International Refugee Law’s Annual Conference on 24 November 2017, a recording of which is available here: https://soundcloud.com/kaldorcentre/panel-1-dr-phi-orchard.