Fact-Checking ‘Progress’ Towards the Global Compact on Migration

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The first International Migration Review Forum (IMRF) for the Global Compact on Migration (GCM) was held in May this year at the UN headquarters in New York. Though migration is one of the most controversial global issues of the day, states reached broad consensus by focussing on the voluntary and non-binding nature of the compact, and committing to cooperation over full implementation.

The echo chamber of the United Nations General Assembly Hall differed little from the overall review process. Though civil society has been ‘in the room’ during regional reviews, these were not opportunities for dialogue and exchange; they were one-way conversations, safe spaces for states to claim progress without scrutiny. To safeguard the fragile consensus of the GCM – which saw the withdrawal of - Opens in new tab several countries - Opens in new tabmoments before its adoption in 2018 – state participation is privileged at all costs, including objectivity.

What is the GCM?

The Global Compact on Migration (GCM) is a state-led cooperative framework on international migration. The Compact outlines 10 underlying principles and 23 objectives addressing different aspects of migration, under which a number of possible actions are listed. The GCM's components are drawn from 'best practices', various human rights instruments, and international law.

Though the GCM is not legally binding, states commit to implementing the Compact in a manner consistent with their obligations under international law (para. 41) and to ensuring effective respect for the human rights of all migrants (para. 15(f)).

Though the GCM is billed as "the first-ever intergovernmentally negotiated UN agreement," the Compact can be more accurately credited for putting the contentious subject of migration back on the international agenda. The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) is a core human rights treaty that pre-dates the GCM and comprehensively addresses migration through a human rights framework. The ICRMW is not widely ratified, and risks being further sidelined as discussion on migration becomes channelled through the GCM. Proponents of the Compact contend that it brings states to the table, and that it can be used to advance discussion on migration issues in other international forums.

The participation of the Gulf Cooperation Council (GCC) states illustrates this compromise well. Statements made by the GCC states present at the IMRF were generally condensed versions of their voluntary GCM review reports - Opens in new tab: that is, self-praise for mainly old, mostly unenforced reforms that have been repackaged to fit under the GCM’s objectives. Though Saudi Arabia did not submit a country report, its representative nonetheless followed the same pattern, while correcting the live translator to claim that the Kingdom has no ‘migrant workers’ only ‘labourers working to support its 2030 vision.'

States are expected to be ambiguous and non-committal in these spaces, and to present themselves in the best light. But unlike other global mechanisms, like the UN treaty bodies (which are binding) and the Universal Periodic Review (which is also state-driven and voluntary, but has a degree of accountability and reputation management), civil society is not invited to submit substantial written information or shadow reports, or request early warnings and urgent actions. A limited number of civil society stakeholders, including MRRORS, are slotted limited time to speak throughout the reviews, but their interventions do not operate as a ‘check’ on the state reporting; the review process involves no follow-up procedure to concerns raised, nor calls for states to address shortfalls in achieving GCM objectives.

As such, information from the voluntary country reviews are incorporated into regional reports - Opens in new tab with scant context and no discernible fact-checking. Policies that are not enforced and practices so detached from context that their description on paper bears little resemblance to reality are recorded as progress. The GCM is positioned as an ‘accelerator’ of this progress, though much of the Gulf state reporting refers to actions adopted prior to the Compact, many of which also remain incomplete in their implementation.

For instance, the regional review report refers to the following preexisting practices as examples of progress towards GCM objectives:

Objective 4: Ensure that all migrants have proof of legal identity and adequate documentation

"In Kuwait, article 12 of Law No. 68/2015 on domestic workers stipulates that 'employers are prohibited from keeping any identification pertaining to domestic workers…'"

This domestic workers’ law not only predates the GCM, but remains poorly enforced.

"Qatar issues registration cards to all residents of the municipalities of the state, including migrants"

Qatar has long issued national identity cards (QIDS) to all residents.

"Bahrain issues biometric identity cards for migrants containing key data."

Bahrain issued it's law (no.46/2006) regarding identity cards in 2006. The law requires all Bahraini citizens and residents to obtain identity documents. However, for many migrant workers, particularly domestic workers, access to identification documents is typically contingent on the agency of their employers. Undocumented migrants and children of irregular migrants also face bureaucratic obstacles to obtaining IDs.

Additionally, unlike other Gulf countries, Bahrain does not have a specific or clear legal text that prohibits employers from confiscating their migrant workers’ identity documents. The practice of passport and ID confiscation remains the norm for low-income and migrant domestic workers.

Objective 9: Strengthen the transnational response to smuggling of migrants?

"Kuwait have issued laws that combat migrant smuggling."

Kuwait criminalised migrant smuggling in its 2013 anti-trafficking law. It remains poorly enforced - Opens in new tab.

At times, the information reported is vague and no meaningful assessment of progress can be made. A few examples include:

Objective 3 Provide accurate and timely information at all stages of migration

"Kuwait’s official websites provide data and regulatory decisions"

Kuwait official websites are regularly out-dated, and often only available in Arabic. Migrants who can understand English rely on state and local media outlets for translations, which are frequently inaccurate.

Objective 5: Enhance availability and flexibility of pathways for regular migration

"Kuwait established consultative processes with labour-sending countries and enhanced efforts to facilitate the issuance of work permits for migrants in the country."

There is no indication as to if or how these processes differ from existing bilateral negotiations - Opens in new tab, which aim to facilitate recruitment to address labour shortages, but fail to guarantee rights for migrant workers. These processes are often not public and do not consult workers or civil society.

"Examples of progress on this objective include Bahrain’s Labour Market Regulatory Authority, which is developing a strategy and general policy regarding the employment of national and migrant workers and facilitating the processes of obtaining work permits for migrants."

There is no indication as to the content of these strategies and policies. The LMRA, for instance, has a strategy to arrest and deport undocumented migrants, which should not be considered progress toward this objective.

In several cases, the information reported has been manipulated so as to be completely untrue:

Objective 22: Establish mechanisms for the portability of social security entitlements and earned benefits

"Receiving countries provided types of social security benefits to migrants, such as unemployment insurance (Bahrain) and unsettled complaints by migrant workers (Kuwait)."

Bahrain’s migrant workers are unable to realistically access unemployment insurance, though each worker pays into the system. From 2018 to October 2020, the total contributions made by migrant workers amounted to approximately BD 57.5 million (US$ 152 million). But in the same period, only 31 migrant workers benefited from the fund, receiving a total amount of approximately BD20,000 (US$ 53,082). In contrast, the Bahraini government paid out unemployment benefits to more than 28,000 citizens - Opens in new tab in 2021 alone. In effect, migrant workers partially finance unemployment benefits given to citizens and other government initiatives.

Objective 10: Prevent, combat and eradicate trafficking in persons in the context of international migration

"A broad cross-sectoral partnership, strong legislative framework, energetic efforts on judicial enforcement, a national referral mechanism and shelters for victims were among the key features of Bahrain’s efforts."

Bahrain has a poor record of judicial enforcement – such that workers’ lives have been jeopardised due to failure to enforce court rulings on non-payment of wages.

Bahrain’s shelter was also closed during periods of the pandemic and in general, only accepts people on a limited basis. The country very rarely considers labour trafficking issues under its National Referral Mechanism.

Objective 15 Provide access to basic services for migrants

"Bahrain’s further efforts include providing migrants with the right to organise in workers’ unions as well as efforts to facilitate free access to litigation during judicial procedures as per Article No. 6 of the Labour Law of the Private Sector No. 36 of 2012 for settling any dispute arising under the employment."

Bahrain's Law No. (33) of 2002 on worker's trade unions applies only to workers covered by the private sector and civil service labour laws, as well as those covered by the maritime code. Flex-Permit workers and domestic workers are not permitted to legally join or form a union because labour laws do not apply to them. In practice, migrant workers who are covered by these laws nonetheless face threats from employers and risk being fired from their jobs if they attempt to organise.

The trade union law also limits the ability of migrants to strike, as they must be members of a union and obtain approval from a majority of the General Assembly of the Trade Union in order to be considered legal. Furthermore, the government has the authority to decide whether to prohibit strikes. For example, the Ministry of Labour's 2018 annual report stated that all 22 strikes that occurred that year were illegal.

The lack of context also obscures the harm done by so-called ‘good practices.’ For example:

‘Responding to the impact of COVID- 19 on migrants’

"Kuwait issued Ministerial Resolution No. 288 of 2020 allowing foreigners who do not have residency permits or whose residency permits have expired to leave the country during the period from 1-4-2020 to 30-4-2020 from any of the designated ports directly and without obtaining Approval from any other party, this was followed by the Ministerial Resolution No. 924 of 2020 allowing foreigners who do not have residence permits or whose residence permits have expired to leave the country during the period from 1-1- 2020 to 2-3-2020."

This amnesty was launched, in large part, to avoid responsibility for migrants out of work, who were generally excluded from pandemic relief and social protections. The mass repatriation process did not appropriately take into account the displacement of Covid-19 risks to ill-prepared countries of origin.

Furthermore, Kuwait’s travel ban - Opens in new tab and succeeding restrictions also rendered it impossible for many migrants stranded abroad to return to the country - Opens in new tab, forcing them to give up their homes and livelihoods.

Objective 4; Ensure that all migrants have proof of legal identity and adequate documentation

"Bahrain has made an open call to provide compassionate or humanitarian considerations for irregular migrants such as in the case of the COVID-19 pandemic, by exempting migrant workers from fines and fees and issuing flexible work permits that allow them to work without being associated with a specific employer."

Though fees for Flexi-Permits were reduced, the program was not otherwise expanded to support migrant workers who lost their jobs during the pandemic. Fines for overstaying visit and work visas were lifted, but the country’s amnesty program was deeply flawed.

Objective 13:. Use migration detention only as a measure of last resort and work towards alternatives

"In Kuwait, during the COVID-19 pandemic, the Ministry of Interior established shelters for contractual migrant workers."

The shelters provided were in terrible condition. - Opens in new tab Workers MR assisted or spoke to said they were rounded up and taken to crowded facilities in northern Kuwait, close to the Iraq border, without being provided any information or clarity on what the processes were.

"Bahrain reported progress on this measure...by taking measures to guarantee freedom of movement for migrants."

In its 2020 GCM submission, Bahrain reiterated that this goal does not align with its national policies and priorities because the country is not considered a destination for irregular migration and the cases of irregular migration are negligible. However, migrant workers who have legally entered the country do frequently take on irregular status because employers control the validity of their residency permits.

The government also noted migrants are only detained when they break residency laws. However, there have been several cases where migrants were arbitrarily detained in Bahrain with no access to lawyers and translators.

The reports and the review process more generally, mine for best practices, focusing blindingly on positives, rather than providing a comprehensive assessment of the status quo. Without an understanding of the baseline, progress – and regress – is, at best, impossible to measure. At worst, these processes shelter abuses and lend legitimacy to states that are failing to meet their human rights obligations.

The UN Network on Migration is responsible for the implementation, follow-up, and review of the Compact. The network consists of UN member organisations, and the IOM serves as the Coordinator and Secretariat. The IOM is not a member of the UN system, but a "related organisation" that remains autonomous. Though the UN-IOM Agreement requires the IOM to conform with principles of the UN Charter, the IOM is not constrained by the framework of the UN - Opens in new tab. The organisation lacks its own normative mandate, as its primary purpose is to provide services to states to manage migration. This conflict of interest likely pervades throughout the GCM and the review process.

The GCM aims to bridge the fragmentation of other human rights instruments -- to link together migration rights, labour rights, and human rights in one comprehensive document – so to consider an action as evidence of progress without examining its full human rights impact contradicts its very raison d’etre. The first review process has concretised one of the primary concerns of GCM sceptics – that the compact undercuts other binding mechanisms by essentially recasting international legal standards as optional and negotiable.

In countries where civil society and democratic participation are heavily restricted, the consequences are especially harmful because pressure in these arenas constitutes one of few incentives for states to change behaviour. When discourse at the international level is neutralised for the sake of retaining state engagement, the spaces to advance change shrink. It is because of the minimal oversight implied in the ‘voluntary, non-binding’ mantra of the GCM that the Gulf states have taken an active interest in the Compact, whereas they have shown little engagement with migration at the UN level otherwise (and in fact, when reporting on issues of migration, contend, as the Saudi representative has, that they are not bound by international migration standards because there are ‘no migrants’ in their countries — only ‘temporary contract labourers.’).

The Progress Declaration - Opens in new tab — the outcome document of the IMRF — does call for the adoption of “a limited set of indicators to monitor and measure progress on Global Compact implementation, based on existing frameworks such as the SDG indicator framework.” But civil society demands stronger tools – among them a human rights index that is developed and measured in consultation with various stakeholders, including subject-matter experts, civil society, and migrants. Without substantial revision to the review process, the GCM is not an ‘accelerator’ but merely a narrative device – a way to dress up existing policies and preferences that privilege the management of migration over the rights of migrants.

Recommendations

Identify priority issues that are the most important to monitor and address at the country level, in consultation with all relevant stakeholders (including experts, the business community, civil society organisations and migrants);
Hold private consultations to enable the participation of civil society and migrant community groups working in unsafe spaces (e.g. where unions are prohibited, where migrants are prohibited from joining unions, where civil society organisations are required to register);
Develop indicators, goals, and targets to measure progress on objectives that are consistent with human rights principles. Ensure that the Compact’s underlying principles are reflected in each objective’s index. Using these indicators, develop base-line reports to provide context for future reviews;
Establish an inclusive reporting process that enables all stakeholders to submit shadow country reports, report on the index, and raise non-compliance issues as needed;
Adopt a more independent, inclusive reporting process, including a peer-review (similar to the UPR) and a mechanism that enables all stakeholders to submit shadow country reports, report on the index, and raise non-compliance issues as needed;
Conclude country reviews with concrete and specific recommendations for states to implement;
Require that funding for projects conforms with OHCHR guidance - Opens in new tab on the relationship between public budgets and human rights into account. Consult with relevant stakeholders in implementing and reviewing projects;
Integrate GCM reviews into the UPR and treaty bodies processes, to ensure that deliberation on migration issues remain within the UN framework, and that the Compact’s voluntary framing of objectives and actions do not erode obligations that are binding under international human rights law.

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