To Whom Does the Global Compact Apply? Some Thoughts on GCR Draft 3

It is well understood that the definition of “refugee” in the 1951 Convention does not cover all forced migrants, or even all forced migrants in need of international protection. Through General Assembly resolutions, regional instruments and international practice, the definition of refugee—and UNHCR’s mandate to provide international protection—has evolved. It now includes all persons who have fled conflict and violence in their home states (indeed, most such forcibly displaced persons likely come within a traditional understanding of the refugee definition—they are likely to belong to groups targeted by one or more of the combatant groups in a civil conflict) and many persons who flee gang violence and domestic abuse, where the home state is unwilling or unable to protect them.

But there are plainly persons who fall outside the Convention definition who are in need of international protection. These could include persons and groups who

  1. are forced from their homes because of natural disasters and other climate events;
  2. face return to human rights abuses (e.g., violations of due process in criminal proceedings);
  3. are displaced by development projects, or
  4. are forcibly displaced within their home states.

The drafts of the GCR have not adopted a consistent approach to these causes of forced migration. In a number of ways UNHCR has attempted to call attention to the protection needs of these groups of people, but it appears that states have pushed back against any language that could look like it is expanding the Convention’s definition of “refugee.”

Draft 1 of the GCR took a bold approach, one appropriate for a Global Compact intended to remind the international community of basic principles and call it to action. It stated that:

The need for international protection arises when persons are outside their own country and unable to return home because they would be at risk there, and their country is unable or unwilling to protect them. (Para. 52.)

States objected to the breadth of this language, even though it did not purport to amend the definition of refugee or impose new duties on states. So this provision was rewritten in Draft 2 to read:

The need for international protection arises when persons are outside their own country and unable to return home because of risks recognized under relevant international and regional law or instruments, as applicable in a specific context.

The italicized language essentially restricts the “need for international protection” to persons already protected by the 1951 Convention and regional instruments (primary among them the OAU Convention). This is plainly an inadequate description of persons in need of international protection, as it is precisely the recognition that there are groups outside of existing law that need international protection that needs to be affirmed.

Adverse comment on this provision has led to a different approach in Draft 3. Gone is a purported definition of those in need of international protection. Instead, para. 61 of the current draft provides:

Mechanisms for the fair and efficient determination of individual international protection claims provide an opportunity for States to determine the status of those on their territory in accordance with their applicable international and regional obligations in a way which avoids protection gaps and enables all those in need of international protection to find and enjoy it.

(I have deleted references and footnotes.)

This is a clever formulation. It does not attempt to offer a definition of those in need of international protection, but rather urges states to close protection gaps in a way consistent with, but not constricted by, existing international and regional norms. The statement remains problematic to the extent that it leaves such decisions to state discretion under state law; to my mind, the explicit statement of Draft 1 is preferable. But this may be the best that the drafters can do at this point. Furthermore, paragraph 63 of Draft 3 (which adopts with small changes similar language in Draft 2) suggests a role for UNHCR and others to play a role in further elucidation of international protection needs:

[W]here 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 law and regional instruments as applicable, as well as practices such as temporary protection and humanitarian stay arrangements.

The language just quoted is worth reading carefully. It makes specific reference to displacement due to natural disasters, in essence referencing the protection agenda of the Nansen Initiative, but it avoids—as does the entire GCR—the phrase “climate change.”

Some commentators and states have argued that climate change is a topic better left to the Global Compact on Migration (GCM). Indeed, climate change is recognized as a “driver” of migration in several provisions of the draft GCM (paras. 17(d) & (f)), but the Compact does not purport to lay down new categories in need of international protection.

Nevertheless, the GCM does include vital “gap closing” language, albeit in somewhat convoluted fashion. The chapeau paragraph (27) to Objective 12 states:

We commit to increase legal certainty and predictability of migration procedures by developing and strengthening effective and protection-sensitive mechanisms for the adequate and timely screening and individual assessment of all migrants for the purpose of identifying and facilitating access to the appropriate determination and referral procedures, in particular where return would exacerbate risks and vulnerabilities, notably those recognized under international law.

This is largely a procedural provision, but it does call for analysis of whether return would increase a person’s risk or vulnerability. It thus comes close to the language defining those in need of international protection included in GCR Draft 1 but subsequently deleted.

There has been a consistent call for “complementarity” between the two Global Compacts. At the least, complementarity should mean that there are no conflicts between the Compacts. It should also mean that, taken together, the international community commits to providing protection to forced migrants when such protection is provided neither by their home state or the state to which they have fled.

The drafts of the GCR and GCM, considered as related and overlapping instruments, come close to meeting this goal.

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