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International Law

UN Global Compact on Migration: Toward a Resurrection of International Refugee Law

Dr. Nafees Ahmad

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International Refugee Law (IRL) stands on a humanitarian platform that is, unfortunately, derisory and insufficient for the contemporary time, but one, which remains a terra incognita despite the frequency and enormity of current refugee crises. The problem of the refugee is today profoundly different. The persecutors are not defeated and defunct regimes.  Instead, persecutors are existing governments, able to insist on the prerogatives of sovereignty while creating or helping to generate refugee crises.  When labeled as persecutors, they react as governments always react. They assert their sovereignty and castigate as politically motivated the human rights claims made against them.  To criticize these governments as persecutors are often the surest route to exacerbating a refugee crisis because it shrinks the opportunity to garner their requisite cooperation. In the face of dramatically and cataclysmically changed social and economic conditions, States felt obliged to abandon the centuries-old practice of permitting the free immigration of persons fleeing dangerous circumstances in their home countries. To limit the number of persons to be classified as refugees while still offering sanctuary to those in greatest need, international legal accords were enacted which imposed conditions requisite to a declaration of refugee status.

The Global Compact for Safe, Orderly and the Regular Migration (GCM) is slated to be unprecedented inter-governmental agreement secured by the United Nations Organization (UNO) addressing all dimensions of international migration. It provides an extraordinary occasion to enhance the Global Governance of International Migration within the Framework of Sovereignty, Safety, and Sustainable Development. In the contemporary international migration patterns, migrants have become a resource to sustainable development. The idea of GCM mooted in April 2017 would be crystallized at the end of 2018 by adopting the GCM at the United Nations General Assembly (UNGA) sponsored inter-governmental conference on international migration.

GCM Genesis: The New York Declaration

On 19 September 2016, Heads of State and Government congregated to regurgitate at the global level within the UNGA, challenges presented by the international migration and refugees’ flows across the globe. It evolved a political understanding that international migration and refugee issues must have visible priority in the global agenda. Thus, 193 UN nation-states have committed and recognized the necessity for greater cooperation coupled with a holistic and consolidated approach to address the human mobility and adopted the New York Declaration for Refugees and Migrants (NY-DRM). The NY-DRM envisages the protection, safety, dignity, human rights and fundamental freedoms of all migrants irrespective of their migratory status at all times by supporting nation-states who are receiving, rescuing and hosting large populations of migrants and refugees. It undertakes to integrate migrants with the host communities by addressing the requirements and capabilities of both migrants and host states within the framework of sovereignty, safety, and sustainable development. It requires combating xenophobia, abolishing the racism and eliminating discrimination towards all migrants by developing a state-driven process of non-binding principles and voluntary guidelines regarding the treatment of migrants in vulnerable situations. The NY-DRM stipulates the strengthening the global governance of international migration, including by bringing International Organization of Migration (IOM) into the UN orbit and through the accelerated development of a Global Compact for Safe, Orderly and Regular Migration.

GCM Aims: Agenda For Sustainable Development

The NY-DRM under its Annex II has commenced an inter-governmental process of consultations and parleys culminating in the scheduled adoption of the Global Compact for Migration at an intergovernmental conference on international migration in 2018.The GCM has been contemplated consistent with Target 10.7 of the 2030 Agenda for Sustainable Development in which UN Member States pledged to have global cooperation to enable safe, orderly and regular migration as per the mandate enunciated in Annex II of the NY-DRM. The Annex II proposes to address all dimensions of international migration, including the developmental, environmental, human rights-oriented, humanitarian, and other dimensions. It is bound to contribute to global governance and improve coordination on international migration by envisaging a framework for comprehensive international cooperation on human mobility and migrants. The impugned GCM framework would have a range of actionable commitments that might ensure the implementation, follow-up structure, and review among the UN Member States regarding international migration in all its dimensions propelled by the 2030 Agenda for Sustainable Development. Further, the Addis Ababa Action Agenda and the Declaration of the 2013 High-Level Dialogue on International Migration and Development would create an informed international community.

GCM Development: The Rule of Law, Transparency and Inclusion Process

The place of the rule of law in the global governance of international migration has been duly identified as an appropriate lego-institutional response to migratory movements. However, the rule of law required its application and interpretation in the municipal jurisdiction and as well as international courts and tribunals particularly in the context of human rights of migrants and refugees and forcibly displaced persons. Therefore, the rule of law must also be reflected in the reception policies of migrants, refugees, and forcibly displaced persons. The role of international and regional organizations like SAARC in supporting the incorporation the rule of law in municipal legal, administrative and judicial processes in the wake of global migration governance issues. Consequently, the process of consultations and negotiations for developing the GCM is being evolved with elements of openness, transparency, and inclusion. GCM subscribes to the active participation of all the stakeholders in its process such as civil society organizations, NGOs, the private sector, academic institutions, legislative bodies, diaspora communities, and migrant organizations. These elements have been postulated in the Modalities Resolution for GCM inter-governmental parleys.

Conclusion

The GCM is slated to explore the multi-layered dimensions of protection that international human rights law (IHRL), international humanitarian law (IHL), and customary international law (CIL) along with IRL offer to asylum-seekers, refugees, and the forcibly displaced migrants. The ambition of the GCM framework is to guarantee a defined range of protection to all human beings, and thus resurrect the IRL foundation from normative entitlement on the ground of exclusive reliance on national membership to substantive architecture of Safe, Orderly and Regular Migration Governance with a vision of common humanity. The GCM is a comprehensive initiative of international perspective that should not remain formally tied to States rather it must operate as a collective regarding its inception and implementation. The GCM norms must visualize the integration threshold with the empirical world while crystallizing the responsibilities for practical delivery. The GCM should remain predictable that the expectations raised by the normative reach of the IRL are often dashed in the multifaceted and problematic human world of contributory power, politics, and conflict. The mandate of the GCM ought to adumbrate the IHRL, IHL, CIL and IRL context, and allude the laxities and limitations for the resurrection of the IRL for ensuring the protection of refugees and asylum-seekers and to enhance the global governance of international migration.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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International Law

Transition of Balance of Power from Unipolar to Multipolar World Order

Fatima Arif

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The international system may be described as a complex system of social, scientific, political, military and technological systems. This dynamic structure is very difficult to evaluate and it is even more difficult to predict its future.

The distribution of power potential in the international system defines the number of major powers and thus the international system’s polarity. The system would be multi-polar if the great powers are more than two; if they are two it would be bipolar and systems with only one great power are called unipolar.

It can be expected in the future multipolar world that the global economy does not settle with a couple of significant nations but rather with multiple nations of varying capabilities. In the limited arena of affairs pertaining to their country, each state with its particular notable qualities will have decisive say. Beyond the US, Japan, China, the EU, and India are capable of economic influence due to their advancements in technology, increasing economy, and large population base. Iran, Saudi Arabia, Venezuela, African Union countries and Brazil will have an impact, owing to their large energy reserves. Russia should have preferences for both. Because of their geostrategic location such as Pakistan, Central Asia, Ukraine and Turkey, a few nations will have some regional influence because these nations are situated on the energy routes from which energy resources would be on route to other parts of the world.

United States and the Changing World Order

There is a broad bipartisan consensus within US political leadership that the country must remain a global leader / world leading power. This assumption in its re-eminence also comes with the fundamental underpinnings that the United States will lead the world to freedom and liberty. Its third term is resolve to contain China.

It’s troubling to what extent the US continues to pursue China’s containment. The’ democracy alliance’ or the’ pivot to Asia’ are examples of US designs. China too, because of its part, diverted from the usual cautious approach and its proclaimed strategy of’ peaceful progression’ to an unambiguous stance on the South China Sea. Right now, however, the condition does not appear to come to a head-on collision anytime far. Yet the contest could bring a serious and dangerous situation to the fore. The US is not going to communicate directly with its forces on the field. There is a lot of resistance for another war at home. This doesn’t mean the US is ineffective. What we have is a hegemon with a diminishing power and a reluctance to give up his position of leadership. At the other hand, there is no other country capable of replacing it while they frequently seek to question its authority. Chinese occasional deviation from caution, and reluctance on the part of the US to yield, build a dangerous situation.

Decline of the Unipolar System

The U.S. has been the only hegemony since the end of the Cold War, but since the economic crisis of 2008 its world hegemony has been undermined. The gap in power between China and the US is diminishing. In 2011, China’s GDP contributed for around half of the US GDP. If China’s GDP continues to rise at 8.5 per cent and US GDP increases at less than 3.8 per cent, the current gap between the two forces will level out in the decade to come. Meanwhile, the economic gap between these two nations and the other major powers will continue to expand over the next ten years. In the next five years, only the US and China will spend more than $100 billion annually on defense, growing the difference in power between them and the others. Accordingly, the international structure would not be unipolar.

International Players That Can Change the International World Order In 21st Century (Analytical Approach)

Bipolar global structure collapsed by the end of the Cold War. The United States has become the sole superpower and as expressed in the new industrial order of defense, the international structure has become unipolar. The major powers of the global community are China, Russia, Japan and the E.U. Whether the international system can turn into a bipolar or multipolar system depends on developments in many countries and regions in technological, political, economic, and military terms. China, Russia, Japan, the EU and India have the power to change their international structure. In the last twenty-five years, China’s capacities have steadily increased in magnitudes that significantly restructure the international order. Economic prosperity for China goes hand in hand with the advancement of science and technology. It is developing expensive weapons systems that are increasingly capable compared to developed countries ‘ most advanced weapons systems. Another important determinant of the future of the international community is the relative dominance of the U.S. in science, technical, economic and military capacities compared to other major powers.

Conclusion

The position of emerging states, which influence the range and change of the international system, is very difficult to comprehend. The general outlines of what is happening with this phenomenon are becoming more evident, as transition happens under intense internal dynamic conditions and not from external factors. There is a group of candidates that can be considered growing powers, and there are rapid bursts in this phase of transition, but it is longer than expected. Under conditions of changing institutionalization a central component of these changes occurs. Yet there is also a gap in the assumptions regarding the principles of collaboration and conflict. National interests and principles are certainly the most significant in the changing world order, and these can also lead to deeply complex and frustrated bargaining situations that need to be resolved by enhanced collaboration at the state level. Joined societies dissolve, along with the old beliefs. According to different ideas of world system, that countries are not less divided, and they can constantly struggle and communicate with each other at the same time. Therefore, the future multi-polar system would be no different from the other multi-polar moments that history has seen, resulting in more chaos and unpredictability than in the current unipolar world. Nevertheless, multi-polarity does not only carry the risks involved in researching balance of power among great powers for the first time in history.

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International Law

The UN reforms are required to make it functional

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Today, the world we live in has become more unpredictable, insecure, and exposed to more vulnerability. Geopolitics is changing rapidly, new problems are often emerging, while old issues remained unresolved. Humankind is under threats and challenges; some of them might be natural disasters, like Earthquakes, Floods, Fires, Valconos, Pandemic, etc. But most of the difficulties and problems are man-made, creation of some powerful countries, the result of over-ambitions, greed, expansionism, biases and jealousy. Big and more muscular countries are keeping eyes on the natural resources of small and weaker nations, etc.

In 1945, the United Nations was established to replace the League of Nations. Because the League of Nations was unable to solve most of the problems faced by the world, unable to resolve conflicts and wars, unable to protect human lives, unable to maintain justice and equality, the failure of achieving objects, the League of Nations was dissolved, and UN was established.

The UN was established with the following four objectives:

Maintaining worldwide peace and security

Developing relations among nations

Fostering cooperation between nations in order to solve economic, social, cultural, or humanitarian international problems

Providing a forum for bringing countries together to meet the UN’s purposes and goals

UN Charter was written by very professionals and experts in their own fields. The Charter is comprehensive and based on many considerations, satisfying almost the needs of nearly everyone at that time. Considering the disaster of the Second World war, the Charter was considered a most appropriate document to address practically all concerns.

The UN has been functioning since 1945 and ready to celebrate its 75th anniversary soon. At this moment, if we look at the performance of the UN, there are many things one can mention as achievements or in the UN’s credit. No doubt, in the early days of the Establishment of the UN, the objectives achieved were rated quite well. However, over time, the UN was politicized, and some of the countries, who were a major donor to UN contribution, were using the UN and its structures to achieve their political objectives. They were misusing the UN platform to coerce some other nations or using UN umbrella to achieve political of economic goals by harming other nations. On the other hand, geopolitics became so complicated and complex that the existing structure of the UN is unable to meet the challenges of the modern world.

Just, for example, Afghan is under war for the last four decades, people are being killed in routine matters, foreign intervention caused the loss of precious lives and economic disaster to people of Afghanistan. Iraq war, Libya War, Syria war, Yemen War, the situation in Ethiopia, Burkina Faso, Venezuela, Ukraine, somewhat more complicated conflict among the U.S., Iran, Israel, and the Persian Gulf, U.S.-North Korea tussle, and Kashmir, all are remained unresolved under the current structure of the UN.

Should we remain silent spectators and keep the status quo, and let the humankind suffer more? Should we justify ourselves as helpless and let the more powerful kills more human beings? Should we remain in isolation and keep our self busy with our own interests? Should we compromise with our conscious? Should we ignore our inner voice? Should we prove ourselves as innocent and not responsible such crimes committed by someone else?

Think and thing smartly, and consider yourself in the same situation and a victim, what we should be expecting from other nations, the international community, and the UN. We must do the same thing to meet the expectations of the victims.

The UN is unable to achieve its objectives with the current structure; the reforms are inevitable. We must strengthen the UN and transform the current dysfunctional UN to a more effective UN, which should satisfy the core issues of all nations. Africa is a major continent, and facing many challenges, but have no say in the UN; there is no single country from Africa in the Security Council of the UN as a permanent member having veto power. The Muslim world, having an estimated population of two billion, every fourth person in this world is a Muslim, there are 57 independent sovereign countries as member f the UN,m but no voice in the UN, no permanent member of UNSC, no veto power, who will protect their rights and who will look after their interests. Should they remain at the mercy of the current five permanent members of the UNSC?

Some countries are rebellious to the UN; some states are defaulter of the UN, and not implementing the resolutions passed by UNSC. Some countries have bypassed the UN and imposed war or sanctions on other nations. They must be held responsible for their acts, the UN should kick such countries out of the UN, and their membership may be suspended or cancelled.

It is time to introduce, comprehensive reforms in the UN, to address all issues faced by today’s modern, complex and rather complicated world. An appropriate representation of all nations, groups, ethnicity or religion should be ensured. The UN has a heavy responsibility, deserve more budgets, more powers and needed to be strengthened further.

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International Law

Coronavirus Shaping The Contours Of The Modern World

Nageen Ashraf

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Globalization vs. Protectionism:

Globalization means the movement of ideas, products, technology, and people across borders and different cultures. It is a multi-dimensional phenomenon. It has social, cultural, economic, political and legal aspects. Globalization has made the world a global village and talks about co-operation and interdependence. Protectionism, on the other hand, is the restriction of movement of goods and products across borders to protect the national industries and economy. The major goal of protectionism is to boost up national economy, but protectionist measures can also be applied for security purposes. So, we can say that protectionists are basically anti-globalists and prefer domestic strength as compared to foreign co-operation.

Protectionism and Covid-19

Globalization has made the world so interdependent and interconnected that any economic or political change in one state creates a domino effect and influence many other states. For the pandemic, most states were initially blaming China, but as it slowly healed and the pandemic caused more devastating impacts in the western states, more fingers are pointing towards globalization. Multiple narratives are building regarding globalization where protectionists finally got a chance to prove how right they were all along.

Globalization not only played a vital role in the spread of this epidemic, it also made the economic crisis go global by affecting the supply chains. An epidemic that affected a single city in Dec, 2019, grew to become a pandemic affecting almost every state in the world through movement of people and goods. States that adopted strict measures and restricted the movement of people, have relatively less cases of corona virus as compared to other states. The worst impacts of corona virus so far can be seen in USA where New York City was initially the epicenter.

New York City is definitely one of the most crowded cities in the world where daily, thousands of people move in and out for various purposes. This could be one of the reasons of such devastating impacts of corona in NYC because the free circulation of people and goods allowed the virus to spread exponentially. On the other hand, if we talk about African continent, where most states are under developed, and the movement of people in and out of the continent is very less as compared to Europe and Americas, reported cases of corona virus are very low. As of Sep 11, 2020, in the whole continent, the highest number of corona cases is in South Africa, with a count of642k as compared to USA’s count of 6.49m. This provides evidence that movement of people played a vital role in the spread of this virus and movement of people has increased a lot since the rise of globalization.

Critiques of globalization also argue that globalization is to be blamed for an epidemic that spread across borders and will soon plunge the whole world into recession. Interdependence because of globalization has made the world more vulnerable to such situations. For instance, China is one of the biggest markets in the world that exports antibiotics and telecommunications and remains an important part of most of the global supply chains. Half of the world’s surgical masks were made by China, even before pandemic. So, when the pandemic struck Wuhan, China, the supplies from China to the rest of the world affected many states that were dependent on China, and they ran out of important pharmaceutical inputs. Even the developed states like France ran out of medical masks and had to suffer because of lack of important medical equipment. This reveals the cost of such deeply interconnected global supply chains that create a domino effect.

Is Globalization ending?

Globalization has made the world a global village and undoubtedly facilitated the free movement of people, goods, ideas, cultures, information, and technology across borders. But on the other hand, it has also played a major role in the spread of diseases and has made states vulnerable to unexpected shocks. Globalists also believe that the medical or health consequences of corona would prove less destructive if states work together instead of working separately for the vaccine, as a competition. Adopting the nationalist or isolationist approach during the pandemic would crash the international economy and further increase the tensions. As the protectionists suggest, if we’d continue to protect only our national economies and keep on putting barriers on international trade, the national recession would soon turn into a global depression, as happened in 1930’s.Timely economic recovery is only possible through global cooperation.

 I think that the threat of Covid-19 has created an extraordinary situation. Originating from Asia, and then causing millions of deaths all around the globe, the blame on globalization is legitimate. Most of the states in the world rely on their tourism revenue that has been affected badly due to corona virus. For instance, Saudi Authorities decided to cancel Hajj because of growing pandemic, and the impact on KSA’s economy would be dramatic. Similarly, Japan is one of the states that depend highly on tourism revenue from Chinese tourists and travel restrictions have caused severe losses. We have also seen how the supply chains are affected just because one of the major producers (China) was badly hit by the virus. Globalization seems to have conquered the world so there is no way that it can be avoided completely. However, after the pandemic, there might be a little change in the world order regarding high interdependency. States that were mostly dependent on China for their important supplies might try to produce the supplies on their own and prioritize their domestic industries over foreign industries because of the consequences they had to bear during the pandemic. Similarly, travel bans will surely be removed but people might hesitate to cross borders and move freely because there will be awareness regarding the risks related to free movement. So, I think that the pandemic has highlighted some backlashes in globalization, but it doesn’t mean that globalization has failed. We can say that it is fragile, despite or even because of its benefits.

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