1 Introduction
After two calm years of negotiation following the UN General Assembly's adoption of the New York Declaration in September 2016, the UN Global Compact for Safe, Orderly and Regular Migration (GCM) ran into heavy weather in the autumn of 2018. A worldwide social-media campaign against the GCM by far-right activists ignited in September and succeeded in turning some of the 193 Member States of the UN against the Compact and in bringing down the government in Belgium.Footnote 1 The damage was greatest in the EU where, at the final vote in the UN General Assembly, three EU Member States voted against (the Czech Republic, Hungary and Poland) out of a total of five negative votes (the others were Israel and the US). Twelve states abstained, of which five were EU members (Austria, Bulgaria, Italy, Latvia and Romania). The other abstaining states were Algeria, Australia, Chile, Libya, Liechtenstein, Singapore and Switzerland.Footnote 2 It was particularly embarrassing for Switzerland to abstain as it had been a co-convenor of the GCM negotiations together with the Mexican delegation. The main argument made by the opponents of the Compact was that it constitutes an interference with state sovereignty regarding migration and border controls. Those in favour of the GCM in the EU were led by Germany, the government of which took up the challenge of defending the Compact. Following a number of pro-GCM interventions in the autumn to counter the social-media campaign, the German chancellor made a strong speech in favour of the GCM at the UN General Assembly on 10 December 2018, tying the GCM to the International Bill of Human Rights.Footnote 3
Goal 10.7 of the UN's 2030 Sustainable Development Goals (SDGs)Footnote 4 is the starting place for the GCM. This ties migration and development together (Piper, Reference Piper2017, pp. 231–235). The position of the international community is that development and migration are linked – migration can be a way to aid development. Moving from one state to another to find employment can assist in poverty reduction. This may not be a startling point of view, particularly as intra-state relocation to find employment and economic improvement is encouraged in many states. But, when relocation involves crossing international borders, it becomes international migration and concerns about its management, control and regulation are easily enflamed, particularly in the Global North. In the European context, this simple equation of relocation and improvement of living conditions was set out as a win–win equation in the preamble to the 1968 EU regulation on movement of workers:
‘whereas mobility of labour within the [EU] must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economies of the Member States.’Footnote 5
The difference between intra-EU labour mobility (using the term that EU states prefer to the more blunt word ‘migration’ but that covers the same activity) and migration from outside the EU into Member States is one not of quality of the activity, but of political choice. While free movement of workers is a celebrated achievement of the EU, even legislating equal treatment for extra-EU migrant workers in the EU has not been possible.
Notwithstanding the development setting of the GCM, the outrage of some states over the end result of the negotiations clearly does not target development as such, but the migration–human rights linkage. The debate is structured around two poles: on the one hand, the international community's development of universal human rights standards applicable to everyone and below which no state can lawfully go, even with respect to migrants; and, on the other hand, state sovereign claims to unfettered control over state borders and migration that must not be limited by international human rights obligations. These two positions are based on law and actionable state obligations: what is the reach of international human rights law and can it touch even the issue of state sovereign control of borders and migration? The practices at issue in this tension are around coercion (De Sousa, Reference De Sousa and de Sousa2019, pp. 110–140). Are states limited by international human rights obligations in their use of coercion against migrants such as, for example, detention, separation of families and children, and the use of force at border crossing points? Further, international human rights law is a very specific form of international law, as it affects individuals directly and purports to endow people with rights that they are entitled to claim against state action. The possibility for individuals to challenge state action, including in the area of border controls and migration, on the basis of international human rights obligations of the state before national judges is hotly contested in many countries. But it is gradually gaining acceptance in many, even countries like the UK, which have dualist legal systems that normally require international obligations to be transposed into national law before they are justiciable (Starke, Reference Starke1936, p. 66; Craig, Reference Craig2001 p. 125; Von Bogdandy, Reference Von2008, pp. 3–4; Arangio-Ruiz, Reference Arangio-Ruiz2015, p. 909). The rising importance of the UN treaty bodies as dispute-resolution mechanisms with respect to UN human rights Conventions is a symptom of this change (Alston and Crawford, Reference Alston and Crawford2000).
Development policy, to the contrary, is based on aspirations and commitment towards goals that are (at least for the moment) mainly non-legal. The space for individuals to challenge development policy directly is limited. Such challenges usually must take a route via human rights law even where they are based on environmental issues (McGoldrick, Reference McGoldrick1996, pp. 796–800). The state-to-state commitments in the field of international development are expressed through goals, funding arrangements and disaster planning (see Section 2). These are fairly insulated from individual (or collective) human rights claims that rarely emerge beyond the local or national scene. Human rights responsibilities for international development activities belong to the state in which the choices and activities are carried out. Unlike human rights and migration, they are less likely to seep across legal borders and disturb state-sovereigntist claims. Embedding migration in development is, therefore, one mechanism to remove it from the scope of legal obligations and place it in an aspirational setting that should be less controversial.
This tension is apparent in the reaction to the GCM in the lead-up to the critical UN General Assembly vote on it in December 2018. The US Mission to the UN issued a statement on 7 December 2018 designed to clarify its opposition to the GCM. The purpose was also to influence other states, which may have been wavering on whether to support the Compact, to vote against it or abstain. The key statement in the document expressed the conviction that
‘the Compact and the process that led to its adoption, including the New York Declaration, represent an effort by the United Nations to advance global governance at the expense of the sovereign right of States to manage their immigration systems in accordance with their national laws, policies, and interests.’Footnote 6
The concern that the GCM will change the state of international law with unwanted implications for national sovereignty is, in effect, an expression of the view of some states, in particular the US, that see the GCM as clarifying the universality of human rights and their applicability to everyone, including migrants. This position is presented as an affront to state sovereignty. The US Mission's statement does not engage with the SDGs or the development setting of the GCM. This is apparently irrelevant to the real objective of the international community, according to the US, in this project, which is to restrain state sovereignty in respect of migration.
Against this background, in this paper, I will examine three questions:
• What is the link between development and human rights in the GCM?
• How does the link between development and human rights impact the issue of state sovereignty with respect to migration?
• How can the development–migration nexus engage with human rights?
The focus of this paper is to examine how to enhance state compliance with human rights commitments to migrants and their treatment, and how to ensure that the development framework is deployed to enhance the human rights of migrants and not to obfuscate those human rights. A number of states and the EU have become determined to diminish what they classify as irregular migration. In the pursuit of this objective, many interior ministries are willing to deploy an apparently unlimited arsenal of state action, including in all fields of international co-operation. The announcement of the US authorities in May 2019 of emergency measuresFootnote 7 in the form of increasing tariffs on Mexican goods until such time as Mexico stops irregular migration to the US is an extreme example. The reason for this linkage of trade policy and migration is justified in the White House Press Release on the grounds that: ‘As everyone knows, the United States of America has been invaded by hundreds of thousands of people coming through Mexico and entering our country illegally.’ No field of interstate action is safe from manipulation in pursuit of migration objectives, irrespective of how divorced it is from the border/migration field.
Similarly, the EU's new measure linking visit visa costs and processing with the ease with which states facilitate the expulsion home of their own nationals is another example of this coercive linkage of unrelated policy areas in pursuit of border-control and migration-management objectives.Footnote 8 These kinds of approaches constitute a radical shift of priorities in international relations that traditionally engaged interstate relations in pursuit of the UN Charter objectives of international peace and security. Pursuing migration-related coercion through international politics and trade sanctions is an unlikely intrusion of a very specific interior ministry concern into interstate relations. They do not inspire confidence regarding the appropriate separation of state interests. Development policies may all too easily be seen as sufficiently flexible to be put at the disposal of similar kinds of coercive migration objectives. That the vehicle of the GCM could be the conduit to legitimise such an approach in the international community is a danger in the context in which this paper is written.
2 The GCM: a link between development and migration
The international community has been rather incoherent about migration, in particular when it comes to human rights (Guild et al., Reference Caprotti2017, pp. 5–10). While the UDHR and the body of UN human rights Conventions are all written in the language of rights applicable to everyone, including migrants, the international community has been reluctant expressly to acknowledge this fact. While numerous UN treaty bodies have stressed the inclusion of migrants in the personal scope of human rights Conventions,Footnote 9 many states still find themselves having to defend the differential and disadvantageous treatment of migrants in comparison with their own nationals as regards human rights contained in instruments that they have ratified. These issues have increasingly become ventilated in the UPR process (Desmond, Reference Desmond2015).Footnote 10 The 1990 UN Convention on migrant workersFootnote 11 remains ratified mainly by states that consider themselves countries of origin of migrants. The EU has had a troubled relationship with this Convention and, so far, none of its Member States has ratified it (Desmond, Reference Desmond and Desmond2017). Instead, the international community extended international criminal law to include two protocols: one against the smuggling of migrantsFootnote 12 and the other against the trafficking of human beingsFootnote 13 without including any obligatory protections for migrants themselves who might find themselves smuggled or trafficked. These two protocols have been very widely ratified.Footnote 14 Thereafter, the international community has been rather silent on the rights of migrants. This silence was only gently disturbed in 2011 by the ILO's domestic workers Convention, which expressly provides protection for migrant domestic workers.Footnote 15
The linkage between development and migration was mainly spearheaded in Europe (Silga, Reference Silga2012, p. 115). The phrase that has become something of a buzzword is the migration–development nexus, first coined by researchers in 2002 (Nyberg-Sørensen and Van Hear, Reference Nyberg-Sørensen and Van2002, p. 3). The debate that the migration–development nexus reflects is complex. There are many dimensions ranging from development as the ‘solution’ to apparently unwanted migration to migration as the best mechanism to achieve development (De Haas, Reference De Haas2010, p. 227; Silga, Reference Silga2015). The debate has taken place primarily in the development sector with little input from the jurists (I will return to this below) (Silga, Reference Silga2013). The UN's engagement with development and migration is somewhat more fluid. It arises in policy documents and events, such as the international symposium on international migration and development, and high-level dialogue on the subject from about 2006.Footnote 16 However, the linkage has become more structured, in particular towards the end of the first decade of the 2000s (Chetail, Reference Chetail2008, p. 183). The arrival of unexpectedly high numbers of refugees in the EU in 2015–2016 galvanised some EU governments to support a UN-driven migration initiative that opened the route to the GCM.
In 2015, the UN adopted the 2030 Agenda for Sustainable Development, which includes seventeen goals to achieve its objective of inclusive growth and sustainable development for all. Goal 10 deals with reducing inequality within and among countries. At 10.7, this includes the facilitation of ‘orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies’. This provision is the basis on which the GCM was built. The centrality of development is clear in the text of the GCM, which states that the Compact
‘is rooted in the 2030 Agenda for Sustainable Development, and builds upon its recognition that migration is a multidimensional reality of major relevance for the sustainable development of countries of origin, transit and destination, which requires coherent and comprehensive responses.’
The GCM furthermore contains important express recognition of the fact that migration, especially when properly managed, ‘contributes to positive development outcomes and to realizing the goals of the 2030 Agenda for Sustainable Development’. It therefore ‘aims to leverage the potential of migration for the achievement of all Sustainable Development Goals, as well as the impact this achievement will have on migration in the future’ (GCM, para. 15(e)).
By 2016, the New York Declaration stated that the adoption of the 2030 Agenda for Sustainable Development was a clear recognition of ‘the positive contribution made by migrants for inclusive growth and sustainable development. Our world is a better place for that contribution. The benefits and opportunities of safe, orderly and regular migration are substantial and are often underestimated’.Footnote 17 It is worth noting that the language took a turn away from the SDGs when the word ‘responsible’ was removed and the GCM was entitled the Global Compact for Safe, Orderly and Regular Migration. Elsewhere, I have examined what unsafe, disorderly and irregular migration is, assuming that it is against these misfortunes that the international community sought to design the Compact (Guild, Reference Guild2017, p. 1779; Guild, Reference Guild and Stoyanova2018, p. 325). The word ‘development’ appears seventy times in the New York Declaration, while references to human rights appear only thirty-four times. While the balance will remain in favour of development in the final version (it is mentioned eighty-three times), human rights are referred to fifty-nine times.
As regards the instruments of development relevant to the GCM beyond the SDGs (of which the GCM is an elaboration), these are stated to be: the Addis Ababa Action Agenda of the Third International Conference on Financing for Development; the Sendai Framework for Disaster Risk Reduction 2015–2030; and the New Urban Agenda (GCM, para. 2). All three instruments are non-legally binding and were adopted as expressions of the political will of the international community towards development. They are carefully negotiated and written but their form and their adoption indicate that they are aspirational in nature and not intended as normative, rule-setting documents.
The Addis Ababa Action Agenda is an aspirational agenda for the financing of development. Adopted in 2015, it builds on previous UN development financing programmes but avoids obligations and entitlements (Colglazier, Reference Colglazier2015, p. 1048; Montes, Reference Montes2016; Kloke-Lesch, Reference Kloke-Lesch2015, p. 55). The language of rights is noticeable by its absence (Williams and Blaiklock, Reference Williams and Blaiklock2016, p. 387). The Agenda is closely aligned to the 2030 SDGs and is the financing part of them (Colglazier, Reference Colglazier2015, p. 1048). There are six references to migrants in the Agenda: (1) recognition of the positive contribution of migrants for inclusive growth and sustainable development; (2) a commitment to work to ensure that adequate and affordable financial services are available to migrants; (3) in the context of increasing co-operation on access to and portability of earned benefits, recognition of foreign qualifications, education and skills, to lower costs of recruitment for migrants; (4) implementation of effective social communication strategies on the contribution of migrants to sustainable development; (5) combating xenophobia, facilitating social integration and protection of migrants’ human rights through national frameworks; (6) reaffirmation of the need to promote and protect effective human rights and fundamental freedoms of all migrants.Footnote 18
The Sendai Framework is a voluntary, non-binding agreement aimed at disaster risk reduction over the period 2015–2030.Footnote 19 It builds on earlier frameworks on risk reduction and consists of seven targets.Footnote 20 Those targets fit into four priorities: understanding disaster risk, strengthening risk governance to manage it, investing in risk reduction for resilience, and enhancing preparedness for response and recovery, rehabilitation and reconstruction (Aitsi-Selmi, Reference Aitsi-Selmi2015, p. 164; Guadagno, Reference Guadagno2016, p. 30; Kelman and Glantz, Reference Kelman and Glantz2015, p. 105). There are three substantive references to migrants in the framework: (1) disaster-risk-reduction practices need to be multi-hazard and multisectoral, inclusive and accessible, and, to achieve this, governments need to engage, inter alia, with migrants; (2) laws, regulations, standards and procedures should empower local authorities to work, inter alia, with migrants; (3) civil society should take into account that migrants contribute to the resilience of communities and should be included in the design and implementation of disaster risk reduction.
Finally, the New Urban Agenda (Habitat III) was adopted at a conference in Quito in October 2016.Footnote 21 It promotes sustainable cities and human settlements
‘with a view to progressively achieving the full realization of the right to adequate housing as a component of the right to an adequate standard of living, without discrimination, universal access to safe and affordable drinking water and sanitation, as well as equal access for all to public goods and quality services in areas such as food security and nutrition, health, education, infrastructure, mobility and transportation, energy, air quality and livelihoods.’ (para. 13(a)) (Caprotti et al., Reference Caprotti2017, p. 367; Gil-Garcia et al., 2015; Barnett and Parnell, Reference Barnett and Parnell2016, p. 87)
There are five references to migrants in the text: (1) recognition of issues around discrimination against migrants; (2) a commitment to ensure safe, orderly and regular migration that enables positive migrant contributions to cities; (3) ensuring equitable and affordable access to infrastructure in response to the needs of migrants; (4) inclusion of migrants in dialogues with local authorities; (5) promoting productive employment including for migrants.
It is curious to note that, in the three development instruments, migrants are referred to as one of the groups of persons vulnerable to unlawful discrimination. For instance, paragraph 34 of Habitat III concerns the provision of services to ‘women, children and youth, older persons and persons with disabilities, migrants, indigenous peoples and local communities, as appropriate, and to those of others in vulnerable situations’. Paragraph 42 on strengthening interface refers to the roles of ‘men and women, children and youth, older persons and persons with disabilities, indigenous peoples and local communities, refugees and internally displaced persons and migrants, regardless of their migration status, without discrimination based on race, religion, ethnicity or socioeconomic status’. The language of non-discrimination in Habitat III is actually quite legally embedded in comparison with the Addis Ababa Action Agenda and the Sendai Framework.
As regards the GCM's own references to the SDGs, the links are all directed towards migrant inclusion and in some cases specifically reaffirm the applicability of human rights obligations to migrants. In some ways, the documents that form the basis of the development framework for the GCM become more legally relevant where migrants are the object.
3 Development, human rights and state sovereignty
The two fields of development and migration have very different trajectories. Development is primarily an economic tool that promotes the achievement of better living conditions for people (Sen, Reference Sen2000, p. 17; Anand and Sen, Reference Anand, Sen, Fukuda-Parr and Shiva Kumar1997, p. 1). It engages with the way in which resources are allocated to achieve better outcomes for those suffering deprivation and poverty (Sen, 1990, p. 41). It is driven by economic considerations around which legal frameworks may be drawn (e.g. resource redistribution) but are not necessarily obligatory. Development is a profoundly policy-driven field that rarely encounters legal obstacles as such.
Migration, on the other hand, is premised on the claim by states to a monopoly over the legitimate movement of persons (Torpey, Reference Torpey2000). This is a profoundly legal project that commences with the establishment of citizenship as a legal category, the creation of legal rules regarding its acquisition and its attachment to specific places, namely post-Westphalian states (and their bureaucracies) (Weber, Reference Weber, Henderson and Parsons1964). Only once the citizenship project is complete can states engage with the regulation of migration that depends on a separation between citizens entitled to entry (and therefore not migrants) and everyone else who must seek entry (therefore migrants). The claim to state sovereignty over borders and their controls is based on this distinction (Bigo and Guild, Reference Bigo and Guild2005, p. 25).
The development agenda of greatest direct relevance to the GCM is specifically the SDGs. The main element is the recognition that safe, orderly, regular and responsible migration is part of the SDG agenda. It is in the GCM that flesh is put on the bones of this part of the SDGs. In the meantime, underpinning the SDGs are the three development-related programmes: Addis Ababa, Sendai and Habitat III. All of these specifically include migrants in their objectives and recognise the importance of migrants’ contributions and needs to the objectives addressed in the instruments. Human rights and migrants appear more than once together as an important part of the development agenda. But the development agenda is for the most part articulated in aspirational documents. They set out aims of the international community with little by way of hard-law obligations.
The regulation of migration on the other hand requires states to set out laws and codes regarding the treatment of migrants (also known as aliens, foreigners, non-citizens). Because the field is one of law, human rights obligations rapidly accumulate, particularly where states seek to put in place increasingly coercive migration regimes (such as in the US and Europe in 2019). People claim the protection of international human rights obligations of states to protect themselves against coercive migration rules (e.g. separation of migrant parents and their children in detention).Footnote 22 But states that have embarked on coercive border and migration policies through laws and regulations of exclusion are usually less than happy to have those policies thrown into disarray by judges on human rights grounds (Costello, Reference Costello2016, p. 10). One way to seek to avoid these legal challenges is to displace the control of law – either through extra-territorial measures to evade jurisdiction (Marin, Reference Marin2011, p. 54; Moreno-Lax and Giuffré, Reference Moreno-Lax, Giuffré and Juss2019, p. 210) or by moving border and migration control out of law (Guild, Reference Guild1998, p. 613; Dauvergne, Reference Dauvergne and Crock2017, p. 77). The difficulty here is that supranational courts tend to reveal these strategies for what they are: attempts to avoid responsibility and to oblige states to comply with human rights obligations nonetheless (Moreno-Lax, Reference Moreno-Lax2012, p. 574; Giuffré, Reference Giuffré2012, p. 728).
By tying together the field of development, which is profoundly non-legal, and migration, which is unavoidably legal, is it possible for states that wish to have more discretionary, non-legal latitude as regards migration management, which mainly takes the form of the use of coercion, to achieve their objectives? For wealthy countries with restrictive migration-control policies, the opportunity to move the control of possibly unwanted persons to somewhere else far from their borders is highly desirable. A plethora of measures such as visas, carriers’ sanctions and other policies to keep people whom the state considers that it may not want far from the physical borders has been put in place. Legal challenges to these extra-territorial measures tend to be more difficult for individuals to exercise and thus better value for money for the states seeking to exclude people (Rijpma and Cremona, Reference Rijpma and Cremona2007; Gammeltoft-Hansen, Reference Gammeltoft-Hansen2007). Linking development and migration must not be used to provide a new venue for pursuing migration control in a more rights-free environment.
4 The development–migration nexus and human rights
In the academic and policy literature on the migration–development nexus (Bakewell, Reference Bakewell2009; Piper, Reference Piper2008, p. 282; Lavenex and Kunz, Reference Lavenex and Kunz2008, p. 439), three main conceptual tools have been developed: brain drain, remittances and circular migration. All three reveal an ambiguous relationship with human rights. As policy tools, all three lack a strong human rights foundation associated with the inability to understand the human agency of the individual as a migrant and the recognition and protection of that agency through human rights law.
Brain drain is an argument against migration directed particularly at skilled professionals (Docquier and Rapoport, Reference Docquier and Rapoport2012, p. 681; Schiff and Özden, Reference Schiff and Özden2005). The argument is that poor states spend proportionally more of their income (in comparison with rich countries) on training professionals, which they then need to contribute to their countries. If these professionals are permitted to leave the state and seek better conditions and higher salaries in richer countries, the state of origin loses out (Beine et al., Reference Beine, Docquier and Rapoport2001, p. 275; Wiskow, Reference Wiskow2006). The argument is framed in the cloth of ethics and requires some law, such as regulation in destination countries primarily obstructing the issuing of visas and work permits to skilled migrants from selected countries perceived as suffering from brain drain (Raghuram, Reference Raghuram2009, p. 25) or devising a system of compensation for states from which skilled migrants move (Bhagwati, Reference Bhagwati1976, p. 34). From a human rights perspective, the brain-drain argument against migration creates difficulties. Education systems that include a requirement that students spend a period of time working in the state sector at places designated by the state authorities (e.g. health professionals required to work for a few years in districts suffering from disadvantageous access to health services) have been widely accepted (Carens, Reference Carens, Barry and Goodin1992, p. 25; Cole, Reference Cole2000; Dummett, Reference Dummett, Barry and Goodin1992, p. 169). But the length of service must be limited to what is proportionate to the state investment and the workers must be paid in a non-discriminatory manner. Two human rights are immediately at stake in the brain-drain discussion in so far as it engages a limitation on migration. The first is the right to leave any state, including the one of which one is a national (Guild and Stoyanova, Reference Guild and Stoyanova2018),Footnote 23 while the second is the prohibition of servitude (Mantouvalou, Reference Mantouvalou2006, p. 395).Footnote 24 The brain-drain tool, where it involves compensation from destination countries to countries of origin, does not present human rights issues as such, but the political and practical ones are enormous.Footnote 25
Remittances are a quite different field (Kapur, Reference Kapur, Maimbo and Ratha2005, p. 331). The enormity of the amount of international remittances – money sent by individuals from one country to another (mainly from a richer country to a poorer one) to individuals there whom the senders wish to assist – dwarfs development aid (Glytsos, Reference Glytsos2002, p. 5; De Haas, Reference De Haas2005, p. 1269). Remittances as a part of development is a subject that has been much discussed (Ratha, Reference Ratha2007; Giuliano and Ruiz-Arranz, Reference Giuliano and Ruiz-Arranz2009, p. 144). But, because these are voluntary contributions made (usually) by migrants from their incomes, it is difficult to control them. The human right at stake here is the right to property – a complex right in international human rights law but found in the UDHR,Footnote 26 the foundational document of the international human rights regime. The circumstances under which states can justify interfering with people's property have to be set out in law and justified. Requiring migrants to pay specific taxes related to their country of origin is problematic. ILO Convention 97 on migrant workers requires signatory states to permit migrants to dispose of their wages as they wish.Footnote 27 It also prohibits discrimination on the basis of nationality as regards employment taxes, dues or contributions payable in respect of the person employed (Cholewinski, Reference Cholewinski1997, p. 102).Footnote 28 The main obstacles to the value of remittances are taxes (double taxation) and transfer costs. Another problem related to the remittances discussion is the definition of the migrant. When does a migrant cease to be a migrant and become, for instance, a permanent resident or a citizen of the state in which he or she lives? For most people, being a migrant is a temporary status that ceases when the individual goes back to his or her country of origin or integrates into the host state. This temporariness of the status is difficult to incorporate into the remittances debate.
Circular migration is a similarly complex tool. Its underlying principle is that agreements should be reached among states to permit nationals to move for limited periods of time to earn wages, gain skills and benefit from the advantages that the destination state has to offer, and then be required to take these advantages back to the country of origin with the person's return (Vertovec, Reference Vertovec2008; Constant et al., Reference Constant, Nottmeyer, Zimmermann and Constant2013, p. 55). Substantial problems arise in practice, not least the employers’ preferences for a stable workforce and determining the correct period of circularity, but human rights challenges also arise. Among the most common are where circular migrants acquire family members in the host state with whom they wish to remain.Footnote 29 Further, the longer a migrant lives in a host state, the greater his or her claims to continuity of residence on the basis of the human right to a private life (Farahat, Reference Farahat2009, p. 253). At the same time, limiting the period of residence and work of migrants discourages migrants from engaging in integration-related activities as they have no long-term future in the state. Thus, states cannot expect migrants whose residence is limited to short periods to seek to integrate into their societies (Jacobs and Tillie, Reference Jacobs and Tillie2004, p. 419).
In the three traditional areas in which the development–migration nexus touches human rights, problems and issues arise. The economic objectives of development that are not framed in legal terms are extended to migration, framing migration as a development tool. The problem is that migration cannot be reduced to state-driven economic objectives because it involves individuals who have rights. These rights are human rights to make decisions about their destinies in accordance with their appreciation of their best interests, not necessarily those of their states of origin or destination. Negotiating between state interests and an individual's rights is already a complex subject in the field of migration. When development objectives are added into the mix, the rights of people tend to be the first to be sidelined.
5 Conclusions
At the outset of this paper, I posed three questions: (1) what is the link between development and human rights in the GCM, (2) how is the migration-control aspect of state sovereignty impacted by the link between development and human rights and (3) how can the development–migration nexus be engaged with human rights? The objective of the paper was, first, to clarify why state compliance with international human rights standards in the treatment of migrants is a key component of the GCM notwithstanding its development origins. Second, I argue that the development framework of the GCM must be exercised in a manner compatible with international human rights standards.
In Section 2, I examined the origins of the GCM in the UN's Sustainable Development Agenda 2030. To do so, I investigated the place of migrants in the development instruments that are referenced in the GCM. The consistent element revealed by such an examination is that migrants are referred to in a context of inclusion with a non-discrimination objective. They are classed with groups of persons who are singled out as potentially vulnerable and therefore the correct objects of enhanced scrutiny to ensure that they are not rendered victims of discrimination. In the development instruments, which are not legally oriented, the framing of migrants as legitimate beneficiaries of equal treatment with citizens is a recognition of binding non-discrimination norms where the ground for discrimination is nationality (the status of the migrant as a non-national of the state).
In Section 3, I inquired into the claim of state sovereignty vis-à-vis borders and migration and how it is expressed in the migration–development nexus that is reflected in the elaboration of the GCM in the context of the Sustainable Development Agenda 2030. The state-sovereignty argument against international obligations with respect to migrants at borders and within the state relates primarily to practices of coercion that those states do not want to have examined for compliance with international human rights standards. The most problematic of these practices include the detention of migrants at borders (and the conditions of detention),Footnote 30 separation of children from their parents at bordersFootnote 31 and the use of state violence to prevent migrants’ crossing borders.Footnote 32 Development as conceived in the SDGs is strongly policy-oriented with a much lesser role for law, even international human rights law. In so far as some states (mainly in the Global North) seek to isolate their border and migration practices from the reach of international human rights law, a development framework privileges such an approach.
In Section 4, I addressed the tools of the migration–development nexus from the perspective of human rights. In the policy and literature on the migration–development nexus, three tools are consistently proposed – addressing brain drain, making remittances more productive and promoting circular migration. All three present international human rights standards with conundrums. Efforts to combat brain drain presuppose that the human right to leave a country can be curtailed, possibly indefinitely. They also may raise questions about the prohibition on servitude depending on the conditions under which skilled professionals are expected to work in their country of origin before they are allowed to leave. The second, namely the use of remittances (which, it is estimated, surpass development aid by a factor of three), raises the question of the right to property and its use, and the entitlement of migrants to receive their wages and to spend them in accordance with their own priorities. The third, namely circular migration, generally seen as a panacea for state authorities in countries where parts of their right seek to capitalise politically on hostility to migrationFootnote 33 because migrants will only be allowed in to work for short periods and then must leave again, raises human rights questions about its consistency with the right to family and private life.
In conclusion, my analysis indicates that international human rights standards are particularly relevant for international migrants and must remain the primary framework for the implementation of the GCM. The SDGs provide a useful point of entry for the GCM but international human rights must form its foundation.
Conflicts of Interest
None.
