This chapter develops the argument that there is a need to provide international protection to pmdcc. It is perhaps no coincidence that this argument rests on a belief that international law is equipped to accomplish this. After all, international law governs the treatment of various categories of persons, including aliens, workers, refugees, stateless persons, persons hors de combat and children.22 In these instances, international law serves the function of providing an international minimum standard for protection – i.e. it provides a minimum set of principles States must respect regardless of their domestic laws.23 Similarly, when it comes to the international protection of pmdcc, States must agree on a set of principles outlining a minimum standard of treatment, regardless of their domestic laws. In order to unpack these arguments, this chapter begins by characterising hmdcc as a complex planetary and intergenerational problem, and then explores international protection as a potential solution. Finally, to put international protection into context, the chapter examines the commitments of States with respect to hmdcc under the recently adopted Global Compact on Refugees, as well as the Global Compact for Migration.
1
This section argues that hmdcc is a complex planetary and intergenerational problem. Borrowing from Brunnée, complex planetary and intergenerational problems can be viewed as problem situations, which: (i) emerge from the actions of and interactions between multiple actors; (ii) have multiple, dynamic and interconnected variables; (iii) occur in the conditions of scientific uncertainty and evolving scientific knowledge; (iv) are planetary in scope and intergenerational in their impact.24 It is possible to think of complex problems as a ‘cluster of interrelated problems’, which span legal, economic, political, social, environmental, scientific, ethical, demographic and security concerns.25
If the first quality of complex problems is unpacked, hmdcc can be framed as emerging from the actions of and interactions between multiple actors. This is connected to the nature of climate change itself. Climate change occurs as a result of human activities influencing the climate and the earth’s temperature by, amongst other things, the burning of fossil fuels, cutting down of forests and farming of livestock.26 This situation calls for costly shifts in the production and consumption processes.27 States, as well as non-State actors, such as the private sector and consumers, play an important role in bringing this change to today’s global economy.28
This preludes to the third quality of complex problems, which is that they occur in the conditions of scientific uncertainty and evolving scientific knowledge. In order to better map, understand, predict and address hmdcc, there
Finally, thanks to the evolving scientific knowledge, hmdcc can be described as planetary in scope and intergenerational in its impact. Simply put, no one is immune to the consequences of climate change and disasters. This point was made loud and clear by the ipcc, which stated that the international community must meet the requirements of the Paris Agreement and take further action to control future warming to reduce the future risk of large-scale population displacements.43 Whether they face flooding, wildfires, drought, desertification or sea-level rise, all countries will need to adapt to a warmer world. Due to the long-term and potentially irreversible effects of
2 International Protection as a Solution
Since hmdcc is a complex planetary and intergenerational problem, it can be managed only if all States cooperate in promoting an international minimum standard for the treatment of pmdcc. The author submits that the notion of international protection is well equipped to serve as the basis for a global response. This section begins by expounding on the concept of international protection in international law, before undertaking a conceptualisation of the international protection of pmdcc.
2.1 The Notion of International Protection in International Law
One of features of the study and practice of international law that is most taken for granted is the centrality of the idea of ‘international protection’. From intellectual property through to human rights, ‘international protection’ comes to the fore as a concept that provides for an international minimum standard: regardless of domestic laws, international protection in relation to a certain issue designates a global commitment to a standard.
Whilst international protection may relate to the bigger picture of the environment, goods, properties, spaces, objects or animals, the international protection of persons is only concerned with the international minimum standards afforded to individuals and/or specific groups of people.44
Historically, customary rules and treaty provisions that aimed to provide a degree of protection to individuals and groups have imposed major limitations on State sovereignty.45 The initiatives for the creation of these rules and
For instance, by the mid-nineteenth century, mostly for economic and pragmatic reasons, an international minimum standard for the protection of aliens and their property was advocated.47 This stood in contrast to national treatments, according to which, in cases of dispute, aliens would need to exhaust local remedies in domestic courts, in line with the applicable domestic laws.48 The international minimum standard, on the other hand, envisaged alien rights as a specific area of international law, including the right to be free from a denial of justice, the right to have their juridical personality recognised by the receiving State and the right to participate in hearings.49 Currently, the international minimum standard for the protection of aliens and their property is reflected to some extent in international law, most notably in diplomatic law, which governs the relations between sovereign States, and international economic law, which encompasses the international legal rules on foreign investment and trade.50
Another example is the international minimum standard for labour conditions, which can be traced back to the ‘social question’ – i.e. to the consequences of the growing ‘proletarianisation’ of the population in industrialised countries as a result of the Industrial Revolution.51 Under the laissez-faire
The international protection of refugees has a more recent history, dating back only to the twentieth century.56 Although the practice of granting asylum has a long heritage, earlier practices generally treated asylum seekers in accordance with national laws concerning aliens.57 Refugees became a matter of international concern most notably following the end of the First World War, when the dissolution of empires and the rise of nation-states resulted in huge numbers of people forced to seek refuge elsewhere.58 Concomitantly, the
In this context, the League of Nations created a mechanism governing the international protection of persons fleeing across borders. The office of the High Commissioner for Russian Refugees was created in 1921. Under the direction of High Commissioner Fridtjof Nansen60, this office issued ‘Nansen passports’ over the course of the following thirteen years, which gave de jure stateless persons of Russian, Armenian, Turkish, Assyrian, Assyro-Chaldaean, Syrian, Kurdish and Saar origins international protection.61 From 1930 until the end of 1938, there was a split mandate over refugees, with their political and legal protection being vested in the League of Nations’ Secretary-General and the substantive humanitarian work, especially concerning their resettlement, being entrusted to the Nansen International Office for Refugees.62 In 1938, the League of Nations established the High Commissioner’s Office to oversee all matters relating to the international protection of refugees, which brought an end to the Nansen Office.63
During this time, the definition of a refugee (which dictated who was entitled to international protection) was progressively extended. In 1922, it was limited to Russian refugees, before being extended to Armenian refugees in 1924, Turkish, Assyrian, Assyro-Chaldean and assimilated refugees in 1928, and German refugees in 1938.64
The need for international protection, which concerns all those outside their own country and who are unable to return home because of a serious threat to their life, physical integrity, or freedom as a result of persecution, armed conflict, violence, or serious public disorder, against which their country is unwilling or unable to protect them. Persons in need of international protection are typically entitled to protection against refoulement.69
By virtue of Article 33 of the Refugee Convention, the prohibition of non-refoulement (in other words, non-return) applies to refugees.70 However, due to the express articulation of the prohibition of non-refoulement under international human rights law, today the application of non-refoulement extends beyond refugees.71 Applying the prohibition of non-refoulement under
This leads to another type of international protection, namely the international protection of human rights. Since the twentieth century, with the emergence of binding international human rights treaties, human persons now enjoy individual rights under international law.74 International human rights protection refers to the internationally guaranteed legal entitlements of individuals based on the fundamental characteristics and dignity of the human person, according to which States must respect, protect and fulfil their obligations under international human rights treaties.
More specifically, the ‘respect, protect and fulfil’ framework gives rise to three legal obligations: the obligation to respect requires States to ‘refrain from interfering with or curtailing the enjoyment of human rights’; the obligation to protect requires States to ‘protect individuals and groups against human rights
Undoubtedly, this is a broad conceptual framework, resting on three generations of rights, as well as several legally binding international treaties.76 Because it is anchored in an international legal system of rights and corresponding obligations, the ‘human-rights-based approach’ has been increasingly advocated as a tool to assess norms, including those relating to the international protection of refugees under non-refoulement.77
To sum up, international protection is an umbrella term used in international law to refer to international minimum standards applicable to a certain issue. Whilst the examples of the international protection of aliens, workers and refugees highlight that international protection can relate to a specific group of individuals, international human rights protection demonstrates that it can also relate to individuals.
2.2
Drawing on the insights from the previous section concerning the notion of international protection, this section introduces the international minimum standards that should be applicable for the international protection of pmdcc. The author submits that the international protection of pmdcc should aim to: (i) grant protection against return to the country of origin (non-refoulement); (ii) prevent future displacement; (iii) facilitate safe, orderly and regular migration in the context of disasters and climate change.
The evident connection between human rights and climate change provides the foundation for justifying the need to grant protection to pmdcc against return to their country of origin.78 Climate change exacerbates pre-existing inequalities and human rights challenges, ‘posing a serious risk to the fundamental rights to life, health, food and an adequate standard of living of individuals and communities across the world’.79 In 2021, the unhrc made this point loudly and clearly by recognising the fundamental right to have a clean, healthy and sustainable environment and created a new Special Rapporteur on the Protection of Human Rights in the Context of Climate Change.80
As mentioned earlier, under international human rights law, the prohibition of non-refoulement extends beyond those recognised as refugees to cover all persons irrespective of the causes of movement.81 Unfortunately, there is still a need for explicit recognition of the applicability of non-refoulement to pmdcc. The main reason for this is that claims based on non-refoulement due to the impact of climate change are unlikely to meet the very high threshold of risk to the right to life or inhuman or degrading treatment under international
For this reason, an international minimum standard must be agreed upon by States to apply the prohibition of non-refoulement to pmdcc. The content of the standard – i.e. the requirements to grant protection against return to the country of origin – can be further fleshed out by States, based on the input of non-State actors, especially the pmdcc themselves.
Furthermore, the international protection of pmdcc must commit States to measures that aim to prevent future displacement. Prevention already plays a key role in the existing, legally non-binding frameworks on displacement.85 For instance, Principle 5 of the Guiding Principles on Internal Displacement lays out the duty of States to abide by their obligations under international law to prevent and avoid conditions that might lead to displacement in the first place.86 In the case of hmdcc, prevention must be rooted in ambitious climate mitigation targets, as well as disaster-risk reduction measures.87 Building on existing voluntary commitments, the international protection of pmdcc
Finally, the international protection of pmdcc must emphasise the facilitation of safe, orderly and regular migration. ‘Facilitation’ means to make something (e.g. an action, a process, etc.) easy or, at least, easier – when applied to migration, it means to make migration easier and lower barriers to mobility.88 The idea of facilitating the movement of persons as an adaptation strategy to environmental changes represents ‘one of the key and novel storylines’.89 Migration as adaptation can be seen as a strategy to moderate harm, by transforming people’s ability to cope with environmental changes.90 It can also lead to the exploitation of beneficial opportunities, such as seeking employment in an expanded network of labour migration options.91 Thus, facilitating migration can enable two kinds of adaptation: (i) in situ, in which people try to adjust their local systems to adapt to environmental change by relocating internally, and (ii) ex situ, in which people look for opportunities across borders, whether temporarily or permanently.92 In this sense, lowering barriers to mobility can ‘emancipate’ individuals and improve their living conditions, as well as their enjoyment of human rights.93
Taken together, these three pillars represent the international minimum standards that should be applicable in addressing hmdcc. The following chapters refer back to each pillar of the proposed framework, in order to explain the
3 Towards International Protection: The Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration
The unga affirmed two historic instruments in 2018. The Global Compact on Refugees was endorsed on 17 December, and is referred to by the unhcr as ‘a unique opportunity to transform the way the world responds to refugee situations’.94 The Global Compact for Migration was endorsed on 19 December, and is described by the iom as the first agreement covering ‘all dimensions of international migration in a holistic and comprehensive manner’.95 Both compacts include references to hmdcc and inform the discussion on international protection. This section beings by analysing the notion of a global compact under international law, before moving on to discuss the international protection of pmdcc respectively under the Global Compact on Refugees, and the Global Compact for Migration. It concludes with a discussion of the future implications of these compacts for the development of a framework for the international protection of pmdcc.
3.1 The Notion of a Global Compact
The Global Compact on Refugees and the Global Compact for Migration have been viewed as ‘opening up a new chapter of law-making in international law’.96 This alludes to the peculiar space a ‘compact’ occupies in international relations, which is somewhere between law and politics.97 This section discusses the emergence of the notion of a global compact in international relations, as well as in refugee situations and international migration. It also analyses the
The first global example of a compact in international relations is the launch of the UN Global Compact in 2000 by the UN Secretary-General at the time, Kofi Annan.98 The UN Global Compact was designed as a voluntary initiative to mainstream ten principles in business activities around the world, in order to promote corporate sustainability in view of the broader sustainability goals of the UN.99 The continued relevance of the initiative’s idea, sustained institutional leadership support and governmental support are some of its ‘enabling ingredients’.100 For over twenty years, the UN Global Compact has been integrating UN issues into the global corporate responsibility movement.101
Examining the UN Global Compact, the notion of a global compact can be unpacked within the framework of international relations. First, a compact is not a formal source of international law and is legally non-binding.102 Compacts can be associated with the wider trends towards the ‘informalisation’ of sources in international law or the ‘softification’ of international governance.103 Second, the term ‘compact’ was little or never used, which meant
However, the UN Global Compact has significant shortcomings. With vague and flexible principles, no standard of conduct and no monitoring or enforcement mechanisms, the compact fails to hold corporations accountable.107 Some commentators argue that the compact is used by corporations as an instrument for ‘bluewashing’, i.e. for wrapping their brand in the blue flag of the UN and using the UN’s positive image.108 In the author’s view, the effectiveness of the UN Global Compact is also undermined by the vagueness of the concept of ‘sustainability’, which lacks a context-specific (or industry-specific) and implementable definition.109
In most cases, the actions needed to address the causes of large movements of people across international borders are well-known. New lists of recommendations are not necessary. Instead, mobilization of the political will and the resources to implement the decisions of the international community in the General Assembly, the Security Council and other international forums are needed. Rather than ‘preventing’ large movements of refugees and migrants, the factors that force refugees and migrants to abandon their homes and communities must be addressed.115
Five months later, a one-day, high-level plenary meeting of the unga to address large movements of refugees and migrants was convened. As a result, the States unanimously adopted the New York Declaration for Refugees and Migrants (New York Declaration).119 The real significance of the New York Declaration lies in the ambitious and momentous process it initiated: endorsing the entry of iom into the UN system as a ‘related organisation’ and launching negotiation and consultation processes for the two new UN Global Compacts.120
It was primarily the unhcr and several European States that pushed for the development of two separate compacts.121 For the unhcr, the specific legal regime already in place to protect refugees had to be separated, first, because there was no such regime for international migration and, second, because there was a fear of reopening intergovernmental negotiations on the Refugee Convention, if the commitments for refugees were not drafted under its control.122 As a result of separating the compacts, the unhcr was able to lead
Apart from the common timeframe for their development, the two compacts remain different.125 The Global Compact on Refugees is grafted onto a legally binding treaty regime (the Refugee Convention and its Protocol), and it is specific (i.e. it aims to operationalise burden- and responsibility-sharing principles under only four objectives).126 Therefore, it can be seen as a political declaration of intent.127 By contrast, the Global Compact for Migration is the first instrument on international migration. It is extensive in scope: organised into twenty-three objectives, it has several aims, including addressing the drivers of migration and protecting the human rights of migrants.128 It reinstates and reinforces international legal norms relating to migration by drawing on the obligations of States under several sources of international law.129 This packaging exercise can be seen as a critical step in an ongoing political process, and thus the Global Compact for Migration must not be seen as a final product.130
Compact supporters, recognizing the lack of widespread support for a legally-binding international migration convention, would seek to use the Compact and its outcomes and objectives as a long-term means of building customary international law or so-called “soft law” in the area of migration. The United States is particularly concerned by the novel use of the term “compact” to describe the document. Unlike standard titles for international instruments, “compact” has no settled meaning in international law, but it implies legal obligation. Hence, the Compact is amenable to claims that its commitments are legal obligations or at least evidence of international consensus on universal legal principles. The United States objects to any such claims and holds that neither the Compact nor any commitments by States to implement its objectives create any legal obligations on UN Member States or create new rights or protections for foreign nationals as a matter of conventional or customary international law.132
Announcements were made the same year by Hungary, Australia, Austria, the Czech Republic, Slovakia, Israel, Poland and Bulgaria that they would not sign the agreed text.133 The co-facilitator, Switzerland, decided to hold
This leads to the final difference between the two global compacts – whilst the Global Compact on Refugees was endorsed by a vote of 181 States in favour, the Global Compact for Migration received only 152 votes in favour.135
3.2 International Protection and the Global Compact on Refugees
This section discusses the integration of hmdcc and international protection into the Global Compact on Refugees.
[w]hile not in themselves causes of refugee movements, climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements. In the first instance, addressing root causes is the responsibility of countries at the origin of refugee movements. However, averting and resolving large refugee situations are also matters of serious concern to the international community as a whole, requiring early efforts to address their drivers and triggers, as well as improved cooperation among political, humanitarian, development and peace actors.138
With this statement, the States endorsed the unhcr’s long-standing interpretation of the Refugee Convention, which does not recognise ‘climate’ or ‘environmental’ refugees.139 This paragraph endorses the view that the responsibility to ‘address’ primarily lies with the State of origin, in other words, the
International cooperation for the prevention of the drivers of large refugee situations calls upon the ‘international community as a whole’ 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’.140 Although the Global Compact on Refugees references other relevant frameworks in the footnotes, such as the Sendai Framework for Disaster Risk Reduction, the fact that the link with the international climate change regime (such as the unfccc or the Paris Agreement) is not clearly articulated represents a missed opportunity.
in certain situations, external forced displacement may result from sudden-onset natural disasters and environmental degradation. These situations present complex challenges for affected States, which may seek support from the international community to address them. Support for appropriate responses could build on the operational partnerships between relevant actors, including unhcr and the International Organization for Migration (iom), engaging their respective mandates, roles and expertise as appropriate to ensure a coordinated approach.141
where appropriate, stakeholders with relevant mandates and expertise will provide guidance and support for measures to address other protection and humanitarian challenges. This could include measures to assist those forcibly displaced by natural disasters, taking into account national laws and regional instruments as applicable, as well as practices such as temporary protection and humanitarian stay arrangements, where appropriate.142
Although the text of the compact does not articulate the international protection of pmdcc, the inclusion of hmdcc into the text can be considered as a stepping stone towards recognising ‘all those in need of international protection’.146
3.3 International Protection and the Global Compact for Safe, Orderly and Regular Migration
Through the Global Compact for Migration, States articulated an understanding of hmdcc and placed the compact in the centre of future discussions and actions. This section interprets the relevant sections of the compact in order to discuss these new commitments, and their relationship with the notion of international protection.
Objective 2 of the compact concerns the minimisation of the adverse drivers and structural factors that compel people to leave their country of origin.147 This objective contains the only thematic cluster in the whole document – under paragraphs (h) to (l), which are dedicated to natural disasters – focused on the adverse effects of climate change and environmental degradation.148 In
Objective 5 concerns the enhancement of the availability and flexibility of pathways for regular migration. This objective is particularly significant for hmdcc for a number of reasons.149 First, States committed to facilitating regional and cross-regional labour mobility, in accordance with the ilo standards, guidelines and principles and in compliance with international human rights law. Importantly, responding to the needs of migrants in a situation of vulnerability is entrenched as a consideration for such facilitation efforts. Translated into practice, this means that the needs of pmdcc should be taken into account when States negotiate instruments concerning the facilitation of the movement of persons. Examples could include free movement agreements, visa liberalisation and labour mobility cooperation frameworks, as well as free or liberalised movement chapters under ptas. Second, in paragraph (g), States committed to developing or building on forms of complementary protection based on humanitarian or other considerations for migrants compelled to leave their countries of origin owing to sudden-onset disasters and other precarious situations. Third, in paragraph (h), States committed to cooperating to identify, develop and strengthen solutions for migrants compelled to leave their countries of origin owing to environmental changes. In cases where adaptation in or return to their country of origin is not possible, it is recommended to devise planned relocation and visa options.
Objective 5 is complemented by Objective 18, which commits States to invest in skills development and facilitate the mutual recognition of skills, qualifications and competences. Actions under this objective include concluding bilateral, regional or multilateral mutual recognition agreements or including recognition provisions in other agreements, such as labour mobility or trade agreements.150
Recently, in its decision on the Ioane Teitiota v New Zealand case, the UNHRCom referenced the Global Compact for Migration in order to note that both sudden-onset events and slow-onset processes ‘can propel cross-border movement of individuals seeking protection from climate change-related harm’.154 The UNHRCom further confirmed that ‘without robust national and international efforts’, the effects of climate change may expose individuals to a violation of their rights and trigger the non-refoulement obligations of States.155
Although the Global Compact for Migration does not articulate the international protection of pmdcc, the inclusion of environmental factors into the compact opens up multiple areas for law and policy-making. The text represents a ‘sophisticated’ understanding of hmdcc: on the one hand, there is a commitment to strengthening resilience and preventing displacement which will help people stay; on the other hand, pathways for planned and regular migration are encouraged in order to allow people to move out of harm’s way.156 Furthermore, by way of committing to the principle of non-refoulement, the implementation of the Global Compact for Migration provides opportunities to discuss the international protection of pmdcc.
3.4
As the analysis above has demonstrated, although the compacts do not specifically acknowledge the international protection of pmdcc157, their implementation might provide opportunities to advocate for measures in this direction.158
In this sense, the compacts do not adopt the approach proposed by some commentators for creating a legal protection status dedicated to pmdcc.159 Considering that the Global Compact on Refugees is a political declaration of intent grafted onto the Refugee Convention, it might not have been the right forum to recognise a new international protection status. The Global Compact for Migration, on the other hand, provided a more promising venue: from the beginning, it aspired to be a soft law instrument capable of addressing migration in all its dimensions. However, it failed to deliver on its promise by not recognising the protection needs of pmdcc.160
4 Conclusion
This chapter has outlined the need to provide international protection to pmdcc. It characterised hmdcc as a complex planetary and intergenerational problem, which (i) emerges from the actions and interactions of multiple actors, (ii) has multiple, dynamic and interconnected variables, (iii) is occuring in the conditions of scientific uncertainty and evolving scientific knowledge, and (iv) is planetary in scope and intergenerational in impact.
In order to address the complex problem of hmdcc, the chapter proposed adopting an international minimum standard to protect pmdcc, which would be founded on three pillars: non-refoulement, prevention and facilitation. Non-refoulement refers to the granting of protection to pmdcc against return to their country of origin. Prevention refers to taking concrete measures to avoid future displacement. Facilitation refers to lowering barriers to safe, orderly, and regular migration to enable in situ and ex situ adaptation to climate change and disasters.
Finally, in order to compare the proposed international protection with the current commitments of States, the Global Compact on Refugees and the Global Compact for Migration were analysed. The former is a political declaration of intent for burden- and responsibility-sharing with respect to refugees, while the latter is a packaging exercise to reiterate the obligations of States under international law with respect to migrants. Both compacts have significant shortcomings. For instance, they are legally non-binding and they fail to propose an international protection mechanism for pmdcc. Yet, both compacts refer to disasters, the impact of climate change and environmental degradation as drivers of human movement. This demonstrates that States are opening space to discuss hmdcc as a part of international negotiations under the auspices of the UN. The impetus for the international protection of pmdcc as proposed in this chapter is evident.
See Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (2nd edn, Oxford University Press 2019) 12–14; Antonio Cassese, International Law (2nd edn, Oxford University Press 2005) 375–398; Cançado Trindade (n 19) 515.
Hollin Dickerson, ‘Minimum standards’ (Max Planck Encyclopedia 2010) <
Jutta Brunnée, ‘The Rule of International (Environmental) Law and Complex Problems’ in Heike Krieger, Georg Nolte and Andreas Zimmermann, The International Rule of Law: Rise or Decline? (Oxford University Press 2019) 211–232.
ibid. Also see Jamie Murray, Thomas Webb and Steven Wheatley, Complexity Theory and Law: Mapping An Emergent Jurisprudence (Routledge 2019); Julian Webb, ‘Law, Ethics and Complexity: Complexity Theory & the Normative Reconstruction of Law’ [2005] 52 Cleveland State Law Review 227.
ipcc, ‘Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change’ (Cambridge University Press 2021) Chapter 3.
See, generally, Zaker Ahmad, wto Law and Trade Policy Reform for Low-Carbon Technology Diffusion (Brill 2021); Aydin Baris Yildirim, Value Chains and wto Disputes: Compliance at the dispute settlement mechanism (Palgrave Macmillan 2020).
For instance, see Draft Global Pact for the Environment (Preliminary Draft of the Group of Experts, 2017); World Commission on Environment Law of the International Union for Conversation of Nature, International Council of Environmental Law and International Grouo of Experts for the Pact, ‘Note on the United Nations Secretary-General’s Report “Gaps in international environmental law and environment-related instruments: towards a global pact for the environment”’ (10 December 2018). Also see Jayme Walenta, ‘Climate risk assessments and science-based targets: A review of emerging private sector climate action tools’ [2019] 11 wires Climate Change 2.
For instance, in his book titled Laws of Migration published in 1889, Ravenstein theorised human migration and suggested ‘unattractive climate’ as one of the causes that ‘have produced and still producing currents of migration’. Similarly, Huntington wrote in 1907 that geography appeared to be ‘the basis of history in a way that is not generally recognised’ and that ‘climate changes have been one of the greatest factors in determining the course of human progress’. See Ernst Georg Ravenstein, ‘The Laws of Migration’ [1889] 52 Journal of the Royal Statistical Society 2, 286; Etienne Piguet, Antoine Pecoud and Paul de Guchteneire (eds), Migration and Climate Change (cup and unesco Publishing 2011) 2–3; Ellsworth Huntington, The Pulse of Asia: A Journey in Central Asia Illustrating the Geographic Basis of History (Mifflin and Co 1907) 359.
In January 2019, the unsc recognised climate change as a ‘threat multiplier’ in an open debate, which was tabled by the Dominican Republic. See ‘Climate Change Recognized as “Threat Multiplier”, UN Security Council Debates Its Impacts on Peace’ (UN News 25 January 2019) <
idmc, ‘No matter of choice: displacement in a changing climate’ (Thematic Series, idmc, 2018); Michael Brzoska, ‘Climate Change as a Driver of Security Policy’ in Jürgen Scheffran and others, Climate Change, Human Security and Violent Conflict (Springer 2012).
ipcc (n 26).
For instance, the Foresight Report noted that ‘it will rarely be possible to distinguish individuals for whom environmental factors are the sole driver of migration’. See the UK Government Office for Science, ‘Foresight: Migration and Global Environmental Change’ (Final Project Report, London 2011) 9. More recently reiterated in the report: German Cooperation giz and pik, ‘Home Lands: Island and Archipelagic States’ Policymaking for Human Mobility in the Context of Climate Change’ (2020) 22–23. Also see Benoit Mayer, The Concept of Climate Migration (Edward Elgar Publishing 2016) 16.
ipcc (n 22).
Global Compact for Migration (n 9), para 18(h). Also, see Susanne Melde, Frank Laczko and Francois Gemenne (eds), ‘Making mobility work for adaptation to environmental changes: Results from the meclep global research’ (iom 2017).
UK Government (n 33) 9.
ibid.
ibid.
ipcc (n 4) 1342–1351.
ibid 1349.
ibid 1345–1348.
ibid.
ibid.
For instance, see Sherman Strong Hayden, ‘The International Protection of Wild Life: An Examination of Treaties and Other Agreements for the Preservation of Birds and Mammals’ (Columbia University Press 2020); Francesco Francioni, ‘Public and Private in the International Protection of Global Cultural Goods’ [2012] 23 European Journal of International Law 3, 719–730; Malgosia Fitzmaurice, ‘International Protection of the Environment’ (Volume 293, Collected Courses of the Hague Academy of International Law 2001).
James Crawford, Brownlie’s Principles of Public International Law (9th edn, Oxford University Press 2019) 607–690.
For instance, for a debate on the international protection from slavery, see Omar Al Turabi, Protection from Slavery in the International Legal Order (Doctoral thesis, University of Bern 2006); Gelien Matthews, The Other Side of Slave Revolts (The Society for Caribbean Studies, East Yorkshire 2000). For a private international law perspective on the international protection of adults, see Richard Frimston and others (eds), International Protection of Adults (Oxford University Press 2015).
Vincent Chetail, International Migration Law (Oxford University Press 2019) 61; Dickerson (n 23).
Annemarieke Vermeer-Künzli, ‘As If: The Legal Fiction in Diplomatic Protection’ [2007] 18 ejil 1, 37–68.
Crawford (n 45) 607. Also see Mavrommatis Palestine Concessions (Greece v Great Britain) (Judgement) [1924] pcij Series A no 2; L.F.H. Neer and Pauline Neer (USA) v United Mexican States [1926] 4 r.i.a.a. 60; LaGrand Case (Germany v United States of America) (Judgment) [2001] icj.
Andreas Roth, The Minimum Standard of International Law Applied to Aliens (Sijthoff, Leiden 1949); Andreas Lowenfeld, International Economic Law (2nd edn, Oxford University Press 2002); ilc, ‘Draft articles on diplomatic protection’ (2006) UN Doc A/61/10; Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 596 unts 261.
Sandrine Kott, ‘ilo: Social Justice in a Global World? A History in Tension’ [2019] International Development Policy, 21–39; Jasmien Van Daele, ‘The International Labour Organization in Past and Present Research’ [2008] 53 International Review of Social History 3.
Antony Evelyn Alcock, History of the International Labour Organisation (Palgrave Macmillan 1971) 3–11.
Van Daele (n 51).
See generally, Daniel Maul, The International Labour Organization: 100 Years of Global Social Policy (De Gruyter and the ilo 2019); Steve Hughes and Nigel Haworth, The International Labour Organisation: Coming in from the cold (Routledge 2011); Albert Thomas, ‘The International Labour Organization: Its Origins, Development and Future’ [1921] 1 International Labour Review; George N. Barnes, History of International Labour Office (London 1926).
By 2020, the ilo had adopted 190 Conventions and 206 Recommendations. For instance, see ilo Convention No 3: Maternity Protection Convention (1919); ilo Convention No 29: Forced Labour Convention (1930); ilo Convention No 138: Minimum Age Convention (1973).
See in general, Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2007).
Evan J. Criddle and Evan Fox-Decent, Fiduciaries of Humanity (Oxford University Press 2016) chapter 9; Dieter Kugalmann, ‘Refugees’ (Max Planck Encyclopedia 2010) <
See Randall Lesaffer, ‘Peace Treaties and the Formation of International Law’ in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (Oxford Univeristy Press 2012) 71–94.
Criddle and Fox-Decent (n 57); unhcr, ‘A Special Report: Ending Statelessness Within 10 Years’ <
Fridtjof Nansen was a Norwegian scientist, diplomat, and humanitarian, who is a Nobel Peace Prize laureate and a successful polar explorer. It might interest the reader to know that his legacy still continues today with the Nansen Initiative, which was launched in 2012 to build consensus among States about how best to address cross-border displacement in the context of sudden- and slow-onset disasters. See Chapter 2.2.2 of this book.
Criddle and Fox-Decent (n 57).
ibid.
ibid.
Arrangement with regard to the Issue of Certificates of Identity to Russian Refugees (5 July 1922) 13 lnts 238 (No 355); Plan for the Issue of a Certificate of Identity to Armenian Refugees (31 May 1924) ln Doc cl 72 (a); Arrangement relating to the Issue of Identity Certificates to Russian and Armenian Refugees, Supplementing and Amending the Previous Arrangements (12 May 1926) 89 lnts 47 (No 2004); Arrangement Relating to the Legal Status of Russian and Armenian Refugees (30 June 1928) 89 lnts 53 (No 2005); Arrangement concerning the Extension to Other Categories of Refugees Certain Measures taken in Favour of Russian and Armenian Refugees (30 June 1928) 89 lnts 63 (No 2006); Agreement concerning the Functions of the Representatives of the League of Nations’ High Commissioner for Refugees (30 June 1928) 93 lnts 377 (No 2126); Convention relating to the International Status of Refugees (30 June 1933) 159 lnts 199 (No 3663); Convention concerning the Status of Refugees coming from Germany (10 February 1938) 19 lnts 59 (No 4461); Additional Protocol to the Provisional Arrangement and to the Convention concerning the Status of Refugees coming from Germany (14 September 1939) 198 lnts 141 (No 4634).
Chetail (n 47) 381–392.
In 1949, the UN Relief and Works Agency (unrwa) was established for the international protection of Palestinian refugees. See unga Res 302 (iv) (1949).
Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 unts 267.
Global Compact on Refugees (n 9), para 5. See Chapter 2.2.1 of this book for a discussion on the principle of non-refoulement.
unhcr, ‘Migrants in Vulnerable Situations: unhcr’s Perspective’ (unhcr 2017) <
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 unts 137 (Refugee Convention) art 33.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171 (iccpr); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 16 June 1987) 1465 unts 85 (cat); International Convention for the Protection of All Persons From Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) 2716 unts 3 (icpped).
Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change Normative Gaps and Possible Approaches’ (unhcr Legal Protection and Policy Research Series 2012).
International human rights law can also be seen as ‘expanding’ the international protection of refugees. For instance, Puggiani explores the role played by States in translating international protection to refugees and asylum seekers under a human-rights based approach. She argues that the duty of the State is not only to provide protection from persecution, threats, and sustained violence, but must also entail emancipation. She also rests her argument on the difference between the public responsibility to protect and the private desire to assist. See Raffaela Puggioni, Rethinking International Protection: The Sovereign, the State, the Refugee (Palgrave Macmillan 2016).
The precursors of international human rights law were already challenging the traditional theory that only States and ios can be subjects of international law. For instance, in the aftermath of the Second World War, the Nuremberg and Tokyo tribunals assumed that individuals possess direct obligations under international law and held them accountable for crimes against humanity, war crimes, and crimes against peace. Going further than these developments, international human rights treaty regimes allow victims of violations to invoke their rights directly at the international level with the creation of the individual complaint and communication procedures. See Cassese (n 22) 375–398; Kälin and Künzli (n 22) 13–17; John Knox, ‘Horizontal Human Rights Law’ [2008] 102 ajil 1, 1–47.
See UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 24’ (10 August 2017) UN Doc E/C.12/gc/24; ohchr and Inter-Parliamentary Union, ‘Handbook for Parliamentarians’ (ohchr and Inter-Parliamentary Union 2016) 31–38.
Three generation of rights are civil and political rights; economic, social and cultural rights; and solidarity or group rights (although this group is contested). The international human rights treaties include: iccpr (n 71); cat (n 71); International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969) 660 unts 195 (icerd); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entry into force 3 January 1976) (icescr); Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1976, entry into force 3 September 1981) (cedaw); Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990) 1577 unts 3 (crc); International Convention on Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entry into force 1 July 2003) (icrmw); Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 unts 3 (cprd).
For instance, Mazzeschi argues that international human rights standards ‘substituted’ and ‘transformed’ the norms on the treatment of aliens. Substitution refers to the expansion of human rights to govern the norms relating to the treatment of aliens. Importantly, in 1985, the unga Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live recognised that the udhr applies to aliens. Transformation refers to the emergence of the individual as an addressee of international law. This meant that foreign nationals were entitled to invoke some of the international primary norms under human rights treaties. See Riccardo Pisillo Mazzeschi, ‘The Relationship Between Human Rights and the Rights of Aliens and Immigrants’ in Ulrich Fastenrath and others (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011); David Weissbrodt, The Human Right to Citizenship (University of Pennsylvania Press 2015) chapter 1.
unep and Columbia University Sabin Center for Climate Change Law, ‘Climate Change and Human Rights’ (2015) <
Achim Steiner, ‘Foreword’ in unep, Columbia University Sabin Center for Climate Change Law, ‘Cliamte Change and Human Rights’ (2015) <
unhrc (n 10). Also see unhrc Res 47/24, ‘Human rights and climate change’ (14 July 2o21) UN Doc a/hrc/47/l.19.
Basak Cali, Cathryn Costello and Stewart Cunningham, ‘Hard Protection through Soft Courts? Non-refoulement before the United Nations Treaty Bodies’ [2020] 21 German Law Journal 3, 355–384.
This was made particularly evident in the recent decision on the Ioane Teitiota v New Zealand case of the UNHRCom. See Chapter 2.2.1 of this book for a further discussion on this topic.
Ioane Teitiota v. New Zealand (2020) UNHRCom UN Doc ccpr/c/127/d/2928/2016, [9.3] (Ioane Teitiota).
Vincent Bellinkx and others, ‘Addressing Climate Change through International Human Rights Law: From (Extra)Territoriality to Common Concern of Humankind’ [2021] 11 Transnational Environmental Law 1, 69–93.
For instance, the Task Force on Displacement (tfd) of the unfccc refers to ‘averting, minimising and addressing’ human mobility in the context of climate change. See unfccc (n 1).
Guiding Principles on Internal Displacement (22 July 1998) adm 1.1, prl 12.1, pr00/98/109 <
Simperingham (n 17).
Facilitation of migration occurs in the context of freedom of movement, which is a fundamental human right with a long history. Freedom of movement encompasses the rights of individuals to travel and reside within the borders of a State, and to leave any country, including their own, and to return to their own country. However, it is an ‘incomplete right’ because it is not matched by a State duty of admission. Therefore, it cannot be equated with a right to permanently migrate or a right to enter a country.
Giovanni Bettini, ‘Climate migration as an adaptation strategy: de-securitizing climate-induced migration or making the unruly governable?’ [2014] 2 Critical Studies on Security 2, 180–195.
Jurgen Scheffran, Elina Marmer and Papa Sow, ‘Migration as a contribution to resilience and innovation in climate adaptation: Social networks and co-development in Northwest Africa’ [2012] 33 Applied Geography 119.
Maria Lewicka, ‘Place attachment: How far have we come in the last 40 years?’ [2011] 31:3 Journal of Environmental Psychology; Graeme Hugo and Douglas K. Bardsley, ‘Migration and Environmental Change in Asia’ in Etienne Piguet and Frank Laczko, People on the Move in a Changing Climate (Springer 2014).
Ma. Laurice Jamero, ‘In-situ adaptation against climate change can enable relocation of impoverished small islands’ [2019] 108 Marine Policy 103614, 1–28.
Jane McAdam, ‘Displacement in the Context of Climate Change and Disasters’ in Cathryn Costello, Michelle Foster and Jane McAdam, The Oxford Handbook of International Refugee Law (Oxford University Press 2021).
Global Compact on Refugees (n 9).
iom, ‘Global Compact for Migration’ (iom) <
Peter Hilpold, ‘Opening up a new chapter of law-making in international law: The Global Compacts on Migration and for Refugees of 2018’ [2021] 26 European Law Journal 3-4, 226–244.
Thomas Gammeltoft Hansen, ‘The Normative Impact of the Global Compact on Safe, Orderly and Regular Migration’ in Marion Panizzon, Elspeth Guild, Isobel Roele and Violeta Moreno-Lax (eds), What is a Compact? Migrants’ Rights and State Responsibilities Regarding the Design of the UN Global Compact for Safe, Orderly and Regular Migration (Raoul Wallenberg Institute of Human Rights and Humanitarian Law 2017) 7.
unga Res 55/215 (2000) gaor 55th Session. See also, unga Res 73/254 (2018) gaor 73rd Session. For more recent activities of the network, see UN Global Compact, ‘2020 Annual Management Report’ (2020) <
Oliver F. Williams, ‘UN Global Compact: The Challenge and the Promise’ [2004] 14 Business Ethics Quarterly 4, 755–774.
Georg Kell, ‘12 Years Later: Reflections on the Growth of the UN Global Compact’ [2012] 52 Business and Society 1, 31–52; George Kell and David Levin, ‘The Global Compact Network: An historic experiment in learning and action’ [2003] 108 Business and Society Review 2, 151–181.
W. Lance Bennett, ‘Communicating global activism’ [2003] 6 Information, Communication and Society 2, 143–168.
In the author’s view, it would be interesting to analyse whether a State’s commitments under the Global Compact for Migration can be regarded as a binding unilateral declaration under international law. A binding unilateral declaration is made by a State without any requirement for reciprocation or response from another State. Furthermore, it may be related to rights or obligations vis-à-vis the international community at large. For more information on binding unilateral declaration under international law, see ilc, ‘Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto’ (2006) UN Doc A/61/10.
Gammeltoft Hansen (n 97).
Isobel Roele, ‘What are the Forms of UN International Agreements/Understandings and What is Their Legal Effect?’ in Marion Panizzon, Elspeth Guild, Isobel Roele and Violeta Moreno-Lax (eds), What is a Compact? Migrants’ Rights and State Responsibilities Regarding the Design of the UN Global Compact for Safe, Orderly and Regular Migration (Raoul Wallenberg Institute of Human Rights and Humanitarian Law 2017) 11.
Panizzon calls this ‘issue-linkaging’ or ‘packaging’. See Marion Panizzon, ‘The Global Migration Compact and the Limits of ‘Package Deals’ for Migration Law and Policy’ in Marion Panizzon, Elspeth Guild, Isobel Roele and Violeta Moreno-Lax (eds), What is a Compact? Migrants’ Rights and State Responsibilities Regarding the Design of the UN Global Compact for Safe, Orderly and Regular Migration (Raoul Wallenberg Institute of Human Rights and Humanitarian Law 2017).
Gammeltoft Hansen (n 97).
Michael Blowfield and Jedrzej George Frynas, ‘Setting New Agendas: Critical Perspectives on Corporate Social Responsibility in the Developing World’ [2005] 81 International Affairs 3, 499-513; Michael Blowfield, ‘Corporate Social Responsibility: Reinventing the Meaning of Development?’ [2005] 81 International Affairs 3, 515–524; Steve Hughes and Rorden Wilkinson, ‘The Global Compact: Promoting Corporate Responsibility?’ [2001] 10 Environmental Politics 1, 155–159.
Kenny Bruno and Joshua Karliner, ‘Tangled up in blue’ (Corpwatch, 1 September 2000) <
Sustainable development was defined by the World Commission on Environment and Development in 1987 as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. See World Commission on Environment and Development, ‘Our Common Future’ (1987). However, what this amounts to with respect to each activity still remains ambiguous. For instance, see Olivier Boiral and others, ‘Sustainability rating and moral fictionalism: opening the black box of nonfinancial agencies’ [2021] 34 Accounting, Auditing and Accountability Journal 8, 1740–1768; Paul Johnston, Mark Everard, David Santillo and Karl-Henrik Robert, ‘Reclaiming the definition of sustainability’ [2007] 14 Environmental Science and Pollution Research International 1, 60–66.
Report of the Secretary-General, ‘In Safety and dignity: addressing large movements of refugees and migrants’ (2016) UN Doc A/70/59 (Secretary-General).
ibid.
unga Res 55/2 (18 September 2000) (Millennium Declaration). See also, unga Res 55/235 (30 January 2001); unga Res 57/144 (26 February 2003) (Follow-up to the outcome of the Millennium Summit).
Millennium Declaration (n 112), paras 25 and 26.
unga Res 70/L.34 (22 December 2015). Also see unga Res 70/290 (19 July 2016) gaor 70th Session.
Secretary-General (n 110) para 52.
ibid para 100 and 101.
ibid para 68.
ibid para 105.
unga, ‘New York Declaration for Refugees and Migrants’ (13 September 2016) gaor 71st Session UN Doc A/71/L.1 (New York Declaration).
Chetail (n 47) 325.
Diego Badell, ‘The EU, migration and contestation: the UN Global Compact for migration, from consensus to dissensus’ [2021] Global Affairs, Elizabeth G Ferris and Katharine M Donato, Refugees, Migration and Global Governance (Routledge 2020) 1–29, 100–122. Also see Rieko Karatani, ‘How history separated refugee and migrant regimes: In search of their institutional origins’ [2005] 17 International Journal of Refugee Law 3, 517–541.
unhcr defines a compact as ‘an agreement that is not legally binding but that captures, by consensus, political commitments both to principles and to concrete action by Member States’. See unhcr, ‘New York Declaration faqs’ (unhcr, February 2018) <
unga Res 71/280 (17 April 2017) UN Doc a/res/71/280, first preambular paragraph.
For instance, UK Prime Minister stressed that ‘refugees and economic migrants must be better differentiated […] [to] ensure that countries had a right to control their borders’. The official declarations are available at <
The Global Compact for Migration was developed as a result of a State-led, UN-assisted discourse. The unga President was invited to appoint two country co-facilitators to provide guidance throughout the process, for which he appointed Mexico (Ambassador Juan José Gomez Camacho) and Switzerland (Ambassador Jürg Lauber). The process for the development of the compact was divided into three phases: consultation (April to September 2017), stocktaking (November 2017 to January 2018), and intergovernmental negotiations (February to July 2018). The Global Compact on Refugees was developed in three phases led by the unhcr: informal thematic discussions (January to November 2017), stocktaking (December 2017), and consultations with Member States and other stakeholders (February to July 2018).
Global Compact on Refugees (n 9).
Chetail (n 47) 336; Alexander Betts, ‘The Global Compact on Refugees: Towards a theory of change?’ [2018] 30 International Journal of Refugee Law 4, 623–626.
Global Compact for Migration (n 9).
ibid.
The report of the Special Representative of the Secretary-General on Migration at the time, Peter Sutherland, proposed seeing the Global Compact for Migration as having two functions. First, it ‘could bundle agreed norms and principles into a global framework agreement with both binding and non-binding elements’. Second, it could ‘identify areas in which States seek to work towards the conclusion of new international norms and treaties’. He used the term ‘minilateralism’ to describe how small groups of interested States could work together to develop and implement new ideas that can then be debated, and perhaps be adopted in more formal settings. This mixing of roles of codifying existing rules, on the one hand, and inspiring progressive development, on the other, might be where the true ambition of the compact lies. See Report of the Special Representative of the Secretary-General on Migration, (28 December 2016) UN Doc. A/71/728 (Sutherland Report). Also, Rush perceived the compacts as a ‘new model for international lawmaking, one that will shape state behaviour’. See Nayla Rush, ‘Avoiding the quicksand of the Global Compact on Refugees’ [2018] Center for Immigration Studies.
Jeff Crisp, ‘Mobilizing political will for refugee protection and solutions: A framework for analysis and action’ (World Refugee Council Research Paper 1, 2018); Kelly Currie, ‘Explanation of vote in a meeting of the third committee on a unhcr omnibus resolution’ (US Mission to the United Nations, 13 November 2018). Also see Laurens Cerulus and Eline Schaart ‘How the UN migration pact got trolled’ (Politico, 3 January 2019) <politico.eu/article/united-nations-migration-pact-how-got-trolled/> accessed 6 April 2022.
US Mission to the UN, ‘National Statement of the United States of America on the Adoption of the Global Compact on Safe, Orderly and Regular Migration’ (7 December 2018).
Espinoza, Hadj-Abdou and Brumat argue that there were four reasons for the opposition to the Global Compact for Migration. First, States with restrictive migration agendas, such as Hungary and the US, viewed approving the Global Compact for Migration as a symbolic act of promoting migration. Second, there was a fear that the compact, even though non-binding now, could amount to common practice or law later. Third, references to human rights, especially with respect to border control, worried some States. Fourth, there was a growing influence of the new far right movements in politics. See Marcia Vera Espinoza, Leila Hadj-Abdou and Leiza Brumat, ‘Global Compact for Migration_ what is it and why are countries opposing it?’ (The Conversation, 7 December 2018) <
On its dispatch dated 3 February 2021, the Federal Council supported the Parliament’s assent to the Global Compact for Migration. Importantly, the dispatch states that: ‘Unlike the Global Compact on Refugees, the Global Compact for Migration does not address the specific challenges associated with refugees and thus takes account of the need to keep the two categories separate. The objectives set out in the Global Compact are in line with Switzerland’s migration policy priorities: secure borders, addressing the root causes of irregular migration and forced displacement, preventing human trafficking, providing assistance and protection on the ground, repatriation and reintegration, and protecting human rights. Safe, orderly and regular migration contributes to the attainment of the Sustainable Development Goals. Parliament’s assent to the Global Compact will also enable to Switzerland to participate in and influence discussions on migration at UN level’. See Swiss Federal Council, (Press Release, 3 February 2021) <
The Global Compact on Refugees was endorsed by a vote of 2 against (the US and Hungary), 3 abstentions (Eritrea, Libya and Dominican Republic) and 7 did not vote (North Korea, Israel, Micronesia, Nauru, Poland, Tonga and Turkmenistan). The Global Compact for Migration was endorsed with a vote of 5 against (the US, Hungary, Israel, Czech Republic and Poland), 12 abstentions (Algeria, Australia, Austria, Bulgaria, Chile, Italy, Latvia, Libya, Liechtenstein, Romania, Singapore and Switzerland) and 24 did not vote (Afghanistan, Antigua/Barbuda, Belize, Benin, Botswana, Brunei Darussalam, Democratic People’s Republic of Korea, Dominican Republic, Guinea, Kiribati, Kyrgyzstan, Micronesia, Panama, Paraguay, Sao Tome/ Principe, Seychelles, Slovenia, Somalia, Timor-Leste, Tonga, Trinidad/Tobago, Turkmenistan, Ukraine and Vanuatu). See UN News, ‘UN affirms “historic” global compact to support world’s refugees’ (UN News 17 December 2018) <
Elspeth Guild and Stefanie Grant, ‘Migration Governance in the UN: What is the Global Compact and What does it mean?’ (2017) Queen Mary School of Law Legal Studies Research Paper No. 252/2017, 15.
For a discussion on these institutional frameworks, see Chapter 4.2.3 of this book.
Global Compact on Refugees (n 9). This builds on the recognition in the New York Declaration, which recognised that people move in response to the adverse effects of climate change, natural disasters, or other environmental factors. See New York Declaration (n 119) 1.
Although, it must be stressed that the unhcr has ‘added value’ to the protection of persons in the context of disasters and climate change and has been influential in shaping the international agenda. See Guy S Goodwin-Gill and Jane McAdam, ‘unhcr and Climate Change, Disasters, and Displacement’ (unhcr 2017) <
Global Compact on Refugees (n 9) para 9.
Global Compact on Refugees (n 9) para 12.
ibid para 63.
McAdam and Wood (n 16) 191–206. Also see Aleinikoff, ‘The Unfinished Work of the Global Compact on Refugees’ [2018] 30 International Journal of Refugee Law, 611–617.
Global Compact on Refugees (n 9) para 61. See also, McAdam and Wood (n 16) 191–206.
McAdam and Wood (n 16) 191–206. Also see Hakan G. Sicakkan, ‘A Comparative Research Framework for Studying the Global Refugee Compact’s Impact on International Protection’ (University of Bergen 2021).
Global Compact on Refugees (n 9) para 61.
Global Compact for Migration (n 9) objective 2. See Elisa Fornalé and Aylin Yildiz, ‘gcm Indicators: Objective 2: Minimize the adverse drivers and structural factors that compel people to leave their country of origin’ (Refugee Law Initiative 8 August 2019).
ibid.
Global Compact for Migration (n 9) objective 5.
See Fornalé and Yildiz (n 147); Elisa Fornalé, Aylin Yildiz and Federica Cristani, ‘Objective 18: Invest in skills development and facilitate mutual recognition of skills, qualifications and competences’ in Elspeth Guild and Tugba Basaran (eds), The UN’s Global Compact for Safe, Orderly and Regular Migration [2018] Refugee Law Initiative, 51–52.
Global Compact for Migration (n 9) objectives 6–8, 13–18 and 22.
Global Compact for Migration (n 9) objective 21.
McAdam and Wood (n 16) 191–206.
Ioane Teitiota (n 83).
ibid. The relevance of the non-refoulement principle under international human rights law and the case of Ioane Teitiota are discussed in more detail in Chapter 2.2.1 of this book.
Walter Kälin, ‘The Migration Compact on Migration: A Ray of Hope for Disaster-Displaced Persons’ [2018] 30 ijrl 4, 664.
Other than the issue of hmdcc, the compacts have been criticised for failing to address four topics: idps, large-scale mixed movements, pandemics, and cross-border movements for the purposes of trade, services, investment, and education. See Cecilia Jimenez-Damary, ‘Open letter from the Special Rapporteur on the Human Rights of Internally Displaced Persons on the inclusion of idps in the Global Compact on Safe, Regular and Orderly Migration, in line with the New York Declaration on Refugees and Migrants’ (UN Human Rights Special Procedures, 12 March 2018) <OpenLetterInclusion12March2018.pdf (ohchr.org)> accessed 6 April 2022; Elizabeth E Ferris and Susan F Martin, ‘The Global Compacts on Refugees and for Safe, Orderly and Regular Migration: An Introduction to the Special Issue’ [2019] 57 International Migration 6, 10; Indranil Chakraborty and Prasenjit, ‘covid-19 outbreak: Migration, effects on society, global environment and prevention’ [2020] 728 Science of the Total Environment 138882, 1–7.
See Chapter 4.2.3 of this book for a detailed analysis of the follow-up and review mechanisms of the compacts.
For proposals of conventions, see Hodgkinson and others (n 13); ‘The Toledo Initiative on Environmental Refugees and Ecological Restoration’, Toledo, Spain (9–10 July 2004); Dana Zartner Falstrom, ‘Stemming the Flow of Environmental Displacement: Creating a Convention to Protect Persons and Preserve the Environment’ [2001] 1 Colorado Journal of International Environmental Law and Policy, 1–19.
One reason for this could be that the Global Compact for Migration did not want to create ‘hierarchies of vulnerability’. Oberoi from ohchr stated that: ‘the global compact on migration should not create hierarchies of vulnerability or distinguish between good migrants and others. The multiplicity of categories meant numerous barriers to claiming rights. In addition, the need for specific protection interventions did not mean that migrants did not have agency. At the same time, migrants in vulnerable situations were entitled to a strengthened duty of care’. See iom, ‘International Dialogue on Migration 2017: Strengthening International Cooperation and Governance of Migration’ (18–19 April 2017), 30.
For instance, Koslowski points out that the compacts significantly expanded international cooperation on border control and international travel. The increased security nexus might impede the ability of asylum seekers to leave their homes and seek refuge elsewhere. See Rey Kowlowski, ‘International Travel Security and the Global Compacts on Refugees and Migration’ [2019] 57 iom 6. Furthermore, Hennebry and Petrozziello examine the compacts from a gender perspective, and concluded that ‘unless the compacts together can be employed to challenge the existing patriarchal status quo of how individuals on the move are governed, not only will they fail to realize the gender-responsiveness, but they will also fail to achieve “safe” migration for all’. See Jenna L. Hennebry and Allison J. Petrozziello, ‘Closing the Gap? Gender and the Global Compacts for Migration and Refugees’ [2019] 57 iom 6, 115–138.
Betts states that the basis on which we should judge the compacts must be the difference they make in practice to the lives of migrants, refugees, and other displaced persons. See Betts (n 127) 623–626.