Negotiations on the Global Compact for Migration will be held at the UN headquarters in May. David Donoghue, a co-facilitator during negotiations around the 2016 New York Declaration, considers whether it will be able to address the challenges facing migrants and refugees.

GI: Why did human smuggling and trafficking become such important priorities in the refugee and migrant compact processes? Did member states share the same views on the issue?

DD: It was inevitable that issues around human smuggling and trafficking would feature prominently in the negotiations that led to the New York Declaration for Refugees and Migrants (NYD). The 2016 UN summit, which issued the declaration, had been charged with considering the challenges posed by large movements of refugees and migrants. Member states made it clear that they considered human smuggling and trafficking to be among the worst abuses faced by refugees and migrants, and hence the NYD contains references to the particular vulnerabilities of these groups. It would be fair to say that there was very broad agreement on these issues.

In the declaration, member states show their clear determination to eliminate these evil practices. At the outset, it notes that refugees and migrants often face desperate ordeals. Among the various forms of abuse and exploitation they suffer, some feel compelled to employ the services of criminal groups, including smugglers; others may fall prey to such groups or become victims of trafficking.

Among the regional initiatives that have been taken to address such vulnerability and suffering, the declaration draws attention to the African Union–Horn of Africa Initiative on Human Trafficking and Smuggling of Migrants. It recognizes the special needs of people in vulnerable situations who form part of large movements, highlighting, for example, victims of human trafficking and victims of exploitation and abuse in the context of migrant smuggling. And the NYD recognizes the particular vulnerabilities of women and children, including their potential exposure to human trafficking and contemporary forms of slavery.    

The declaration also reaffirms the importance of the UN Convention against Transnational Organized Crime and its two relevant protocols, encouraging ratification of, accession to and implementation of certain international instruments on preventing and combating trafficking in persons and the smuggling of migrants.  

Recognizing that refugees and migrants in large movements are at risk of being trafficked and of being subjected to forced labour, member states pledged to vigorously combat human trafficking and migrant smuggling with a view to their elimination, including through targeted measures to identify victims of human trafficking or those at risk of trafficking. It also promises support for victims of trafficking. Member states said they would work to prevent human trafficking among those affected by displacement, and the declaration promises a range of collaborative actions to this end.

In short, the powerful messaging on human smuggling and trafficking contained in the NYD reflects the depth of concern that had been expressed by member states during the negotiations, which I co-facilitated.

GI: There are many existing international agreements that address migration and refugee rights, including the UNTOC protocols on migrant smuggling and human trafficking.  How do the global compacts seek to add to existing agreements, and what role might instruments such as the UNTOC protocols play within the global compacts?

DD: It is important to note that the two global compacts arising from the NYD (the Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration) will possibly have the same status as the declaration namely, they will have political force and impact but will not be legally binding agreements. This is the general expectation at present. Of course, commitments made in the compacts could be interpreted differently by the courts in various jurisdictions and one cannot exclude the possibility that they could, over time, acquire a normative value in some states. Even if the compacts are not themselves legally binding, though, it is possible that reference will be made in them to existing agreements on migration and refugee rights, including the UNTOC protocols, and that, as in the NYD, the compacts will emphasize how important it is that as many member states as possible sign up to such agreements.

GI: In the thematic sessions hosted in Geneva and Vienna, which have discussed trafficking and smuggling of migrants, certain key issues have been highlighted by expert panellists:

  • The conflation in general discourse of ‘migrant smuggling’ and ‘human trafficking’.
  • Panellists have argued that, in many instances, states aiming to curb migration have introduced counterproductive policies that have actually served to make migrants more vulnerable to exploitation.
  • It was argued that  more insight into smuggling networks is needed, as separate from the trafficking discussion, as smugglers often influence and amplify future migrant flows.

How would you respond to these three comments?  Do you feel that they are appropriately and adequately raised in the member states’ deliberations?

DD: On the point about a conflation of migrant smuggling and human trafficking, I agree that there are important distinctions to be made here. In the NYD negotiations, we were conscious of these and did our best to avoid conflating the two terms. I was glad that two distinct sessions formed part of the thematic session in Vienna in September 2017.

The point about some states introducing policies that are counterproductive in terms of protecting migrants from exploitation is important: much greater protection is needed for the rights of trafficking victims. There are real risks of re-victimization or re-trafficking as a consequence of certain counter-trafficking measures.   

The role of transnational smuggling networks deserves to be highlighted, along with the importance of coordinated cross-border action, involving both state and non-state actors, to combat them.

GI: Looking ahead, what do you see emerging from the global compact negotiations? Are you confident in the success of the process and if you were to identify key issues that need to be addressed, what would these be?

DD: The co-facilitators of the Global Compact on Migration process will have a vast amount of ground to cover and will also have to contend with high expectations on the part of civil society – as well as a degree of apprehension and defensiveness on the part of many member states. It will not be an easy task to produce a draft capable of attracting broad support. I would like to see a compact that does not reproduce the general analysis already contained in the NYD and other agreements but focuses instead on a range of action points, ideally setting up specific work processes to develop agreements on individual issues. It is clear that the Global Compact on Migration cannot be the last word on all these issues, and that was never the intention. Among the more difficult challenges will be the issue of returnees, the extent to which detention of unaccompanied minors is permissible and how to exert greater impact in terms of deterring migrant smugglers and human traffickers.

The Global Compact on Refugees involves a consultation between the UN High Commissioner for Refugees (UNHCR) and member states, as opposed to a collective negotiation. It will consist of the Comprehensive Refugee Response Framework, which was annexed to the NYD, and an accompanying plan of action. Key challenges here will be how to put into practice the concept of responsibility sharing in the context of refugee emergencies (a concept that is, in any event, not universally agreed upon among member states) and what degree of additional support should be provided for persons in need of protection but who do not qualify under the terms of the 1951 Refugee Convention.

Lastly, the issue of complementarity is an important but thorny one. It is obvious that, to ensure that no issues fall by the wayside (where they are not neatly attributable to either of the compacts), there should be maximum transparency and coordination between the two processes. The problem here is that some member states and regional groups view with suspicion any attempts to link the two – they want to keep a very clear focus on the Global Compact on Migration, whose time has finally come, as they would see it, after decades during which the UN addressed refugee interests comprehensively but has done very little in support of migrants. Some tensions between the International Organization for Migration and the UNHCR compound these suspicions. It will be important therefore to establish clearly the issues that should be common to both compacts and to ensure that they are adequately treated in both.