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Hans van Loon – Conferencia de la Haya sobre Derecho Internacional Privado



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Hans van Loon – Conferencia de la Haya sobre Derecho Internacional Privado




I. Introduction



  1. International migration has become a burning global issue that affects all sixty-five Member States of the Hague Conference, and indeed practically all States and their citizens on this planet. It is estimated that the number of international migrants47 has doubled in the past 25 years to reach the number of almost 200 million people.48 It is more than likely that the numbers will only further increase as nations become more interdependent and regions more integrated. Cross-border migration takes place both within the large regions of the world and between those regions, with a clear trend from economically developing towards developed regions. With the increase in scale, the issue has grown in complexity, and has become increasingly linked with other important global issues, such as security, trade, development, environment, and human rights. The range of stakeholders involved is huge, and their interests vary and sometimes conflict.




  1. As the issue has grown in scale and complexity, States, international organisations and other stakeholders are looking for forms of governance to manage cross-border migration. Instinctively, many governments tend to favour unilateral procedures, but it is increasingly realised that international migration is driven by global forces, and there is growing awareness that international co-operation is essential to effectively control the movement of persons, eliminate abuses such as trafficking and smuggling, combat other undesirable forms of international migration, and promote the benefits it may also bring.



A. The work of the Hague Conference and its relation to international migration


  1. Although the work of the Hague Conference on Private International Law – in so far as it deals with private international law aspects of the cross-border movement of people – is not central to the policy-making in the field of international migration, there are nevertheless important links. On the one hand, policies and perceptions of international migration have an impact on the willingness of governments to engage in negotiations on private international law issues that may affect those policies and perceptions, and to embrace the results of such negotiations. One may presume, for example, that one reason why a potentially very useful instrument such as the 1978 Hague Marriage Convention49 has not yet been more widely ratified has to do with concerns about its impact on the control of the international movement of people.

  2. On the other hand, several successful Hague Conventions provide effective solutions to problems raised by various aspects of international migration. They extend from regulating the cross-border movement of children to dealing with certain specific cross-border consequences of international migration. An example of an instrument aimed at effectively controlling the international movement of a specific category of children – by promoting their migration where it is in their best interest and no suitable arrangements can be made in the country of origin, and combating it when it is not – is the widely ratified 1993 Hague Intercountry Adoption Convention.50 According to one of its main provisions, no child may be entrusted to prospective adoptive parents for purposes of international adoption unless the Central Authorities of both the State of origin and the State of destination (“receiving State”) have agreed that the adoption may proceed.51 They must take the necessary steps so that the child may leave the State of origin and enter and reside permanently in the State of destination.52 The Convention also establishes an accreditation system for (private) intermediaries as a major means to reduce abuses and to enhance the prospects of successful adoptions.53 Within the next few years, the Intercountry Adoption Convention will cover the largest part of the estimated at least 40,000 children that are adopted every year, mainly from economically developing to economically more developed countries.



  3. Examples of Hague Conventions that deal with certain incidents of international migration include the 1956, 1958 and 1973 Conventions on the law applicable, and on the recognition and enforcement of decisions relating to maintenance obligations. As one knows, the Hague Conference is presently negotiating a new global instrument in this field which, in consultation with the United Nations, will also include a new system for international administrative and judicial co-operation for the cross-border recovery of maintenance, as a modern alternative to the 1956 UN Convention.54 The new Convention should, within the area it covers, help to resolve issues, such as the lack of effective systems for, and high costs relating to the cross-border remittance of money, which are, on a more general scale, core issues of international migration and development.55 The 1996 Hague Convention on International Protection of Children56 is another instrument with huge potential to assist countries worldwide in protecting the rights – both under private and under public law – of children on the move, including migrant children.



  1. The work of the Hague Conference is, therefore, in more than one respect linked to the current search for governance in respect of international migration. On the one hand, the Conference, in order to reach its objective of progressively bridging differences between legal systems, has a clear interest in the establishment of more commonality of visions, objectives and practices in respect of international migration. This would strengthen the resolve of the international community to deal effectively with the many private international law aspects of international migration: international marriage and divorce, legal protection of children (including child abduction) and vulnerable adults (including migrating elderly people), marital property relations and inheritance, recovery of maintenance, etc. The wider ratification of the various Hague Conventions in those fields57 would, in turn, bring order and legal certainty to international migration and its consequences.

    B. Possible use of certain techniques developed by the Hague Conference to certain aspects of international migration





  2. On the other hand, the current debate on international migration might benefit from the fact that the Hague Conference has been a pioneer in creating innovative multilateral treaties, or Conventions, for the promotion of international co-operation in private international law matters relevant to international migration. These Conventions are based on a division of responsibilities between States, as well as on shared responsibilities, and aim at achieving practical results. Moreover, they have laid the groundwork for original “post-Convention”58 procedures and services, for assistance, monitoring and review, enabling the sharing of experiences and expertise among States parties, and their further development, made possible by progressive co-operation and growing confidence among treaty partners, other co-operating international organisations and the secretariat.



  1. These treaties and the co-operative techniques based on them have proven their usefulness empirically, they have been a source of inspiration for other organisations, and some, including United Nations bodies,59 have recommended their use, most notably in the context of the international protection of children involved in cross-border movements, including migration. Their original features include: a careful negotiation procedure prepared by solid scientific research with the participation of a core group of States, international organisations and non-governmental experts from the field; an agreed set of principles and rules on the co-ordination of the interplay of different legal systems; the requirement by the Convention of designation of a specific government body (Central Authority) with overall responsibility both internally and internationally – in relation to its foreign counterparts – for the implementation of the Conventions, and as a result, the establishment of a form of institutionalised direct international communication, sharing of information and co-operation coupled with internal co-ordination; and progressive confidence building by regular meetings of these government bodies, again in the presence of experts from the field.




  1. It may be worth examining whether some of these techniques developed by the Hague Conference might be applied to certain specific policy issues in the field of international migration, as a useful complement to some of the approaches that are presently being offered or considered. It would seem that current thinking on ways to provide more governance to the issue of international migration tends to focus either on a comprehensive and detailed regulation of the rights and obligations of migrants or on the reinforcement of the responsibilities of international organisations. There may be room to reflect more on ways to assist States in progressively better co-ordinating, at the internal level, some aspects of their policies regarding international migration, while at the same time developing, at the international level, forms of institutionalised direct co-operation among them, in respect of certain practical issues along the lines of the Hague approach. It might well be that such a course, which need not conflict at all with the two models currently most advocated, would be relatively easy to accept, would be not too difficult to realise, and would then have useful spin-off effects on other aspects of international migration.



II. Some of the dilemmas of international migration facing the countries involved as well as migrants and their families60
A. A changing reality


  1. It was not so long ago that industrialised countries generally pursued an active policy of attracting workers from less affluent parts of the world. While some of these countries did so on the basis of temporary labour contracts, avoiding creating any expectation of permanent establishment or even integration, many other countries attracting foreign workers did not set time limits, and allowed the workers’ families from overseas to join them under certain conditions, which led to permanent establishment, to family reunification, and to larger or lesser degrees of integration of these persons in those countries. Although irregular forms of international migration also occurred, they were not generally perceived as posing a major problem to these countries, because the influx of foreigners was generally welcomed. Refugee and asylum questions were seen as distinct issues, and dealt with under the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol.




  1. More recently, many developed countries have become more reticent, and in some cases unfavourably disposed, to admitting foreigners to their labour market. There are several reasons for this. In the wake of diminishing employment opportunities the admittance of foreigners to the labour market may be seen as a threat to local workers. Governments may be concerned about additional security risks, or negative attitudes of the electorate. At the same time, paradoxically, the private sector may be demanding more flexibility to recruit foreign workers, and if this demand is not met, for example due to political resistance, decide to move an industry, or part of it, abroad, or resort to the services of subcontractors employing migrants with irregular status.




  1. Even in times of diminishing employment, however, there are sectors of the economy, both at the low-income and at the high-income knowledge-based side (health, education, IT), which can only function with the help of foreign labour. That is why many developed countries are facing the dilemma of either making certain exceptions to a restrictive admission policy, or tolerate, out of sheer economic necessity, a certain quantum of migrants with irregular status, and perhaps, after some time, regularise their status. The situation has been further complicated by the influx into many developed countries, for example in Europe, of persons seeking asylum, most of whom however do not qualify for refugee status, and many of whom are in reality economic migrants. This in turn, has an adverse effect on the way countries implement their obligations under the UN Refugee Convention, to the detriment of those who do qualify for protection as persons fearing persecution.




  1. If one looks at the issue from the perspective of the international migrants – women and men – and the countries from which they migrate, the current situation is no less complex. The main forces that are driving international migration are differences in development, demography and democracy. As the divide in living standards between affluent and poor regions continues to grow, and a migrant can easily earn many times more in the industrialised part of the world than at home, the incentive for migration towards the industrialised regions increases. Demographic differences reinforce this trend: while fertility rates in the industrialised countries tend to fall below the replacement rate (2.12 per woman) and their populations are getting older, the population growth in the developing regions continues, with the result that an increasing percentage of the global labour force will come from those regions. The democratic deficit in certain developing countries, in the face of rising but unfulfilled expectations with the younger generation, is an additional factor causing many young people to migrate to countries where they can exercise their rights as free citizens.




  1. It is often entrepreneurial people, those who have some education, bright and capable women and men, who set out to migrate. Some are in a position to exercise the skills they have also in their country of origin but choose to improve their living standards or level of knowledge or skills by moving abroad. Most, however, migrate essentially out of necessity rather than free choice. Many might have stayed in their country where they have their roots and where they would have preferred to develop their full human potential including their socio-cultural identity, if the economic, social and political climate in their homeland were not so hopeless. Moreover, when they leave their country they do so often under very difficult circumstances and at great personal cost, even risking their lives.






B. Temporary or “circular” migration


  1. For countries of origin, the departure of migrants may have both adverse and positive effects. Clearly, migration may mean a relief to countries that have an excess of labour supply. Losing bright and skilled people forever may, however, weaken the country’s prospects for development. It is well known, for example, that the loss of professional personnel in the health sector as a result of migration to wealthier countries has had a very serious negative impact on the delivery of health services in some parts of Africa. A similar trend may be noted in the field of education. The result is a downward spiral with an adverse impact on the development of the countries of origin concerned. In contrast, these countries will draw great benefits from those migrants who return, if only temporarily, and bring the knowledge, skills and contacts they have gained abroad. Measures to promote temporary, “circular” migration are therefore of great importance, and they will be most effective when based on common understanding and co-operation between countries of origin and countries of destination. Several Asian countries, for example, have recognised the developmental opportunities of this form of migration and it is estimated that each year some two million Asian people leave their countries to work abroad under short-term contracts.


C. Remittances61


  1. To many countries of origin, remittances sent home by international migrants are an increasingly important source of income. In 2004, Mexico received 16,000 $ million, India almost 10,000 $ million, and the Philippines 8,500 $ million worth of such remittances. To some smaller countries remittances represent a share of 20% or even 30% of their GDP. It is estimated that they almost triple the official development assistance to low-income countries, and come second as a source of external funding after foreign direct investment. They also come at a price, however. They involve social costs when family and community structures fall apart as a result of international migration. They may discourage economic reform in the countries of origin and may reinforce inequalities between households that do and those that may not count on remittances. Temporary labour migration, although not free from problems, may assist in avoiding some of the drawbacks of remittances by permanent emigrants.




  1. International remittances may find hurdles on their way: unavailability of accessible formal financial channels, high banking fees, and unfair exchange rates, among others. To the extent that the money is being transferred through formal financial channels remittances, in addition to benefiting the direct recipients, also provide foreign exchange to countries of origin, and reinforce the financial sector (both in countries of destination and in countries of origin). But this assumes that migrants and recipients alike have access to these channels at acceptable costs. If not, they may resort to informal and clandestine channels, which may be intertwined with money laundering activities, involve more risks for the individuals concerned, and yield less indirect benefits to the economies, in particular of the countries of origin. Better regulation and co-ordination at the internal level combined with international co-operation and monitoring at the international plane could raise the micro as well as the macro benefits of international remittances.


D. Trafficking and smuggling


  1. Due to the dynamic and changing nature of international migration, the distinction between countries of origin and of destination is not clear-cut. There are countries that fall in both categories, or have become transit countries (there number is growing), and, as migration patterns change, a country of immigration may become a country of emigration, a country of emigration may become a transit country, etc. All three types of countries, however, and, above all the individual victims themselves, are currently faced with appalling abuses as a result of the involvement of traffickers and unscrupulous agents in the movement of people across international borders. Trafficking involves the coercive or deceptive transfer of people independent of their will for purposes of exploitation, whereas smuggling is a consensual transaction for the purpose of circumventing immigration controls. But in practice the two may be combined, or may be difficult to distinguish. While the criminal fight against these abuses, within and between the countries involved, will continue to require great efforts, these efforts could be assisted by the further development of legal machinery for the regulation and licensing of intermediaries involved in the recruitment of migrant workers, in particular in the context of temporary labour programmes. International co-operation at the administrative level and monitoring of the licensing system could serve this development.



III. Current international initiatives to bring governance to the issue of international migration


  1. International migration is a major issue at the global, the regional, the national and often even at the local level. Because it is such an all-pervasive issue, it is important to study and discuss it in its full dimensions in order to be well understood. The recent Report (October 2005) of the Global Commission on International Migration (cgim) commissioned by a core group of States and presented to the Secretary General of the United Nations is an excellent example of such a comprehensive and thorough study and discussion. This Report has the additional merit of looking forward and suggesting directions for possible solutions. While study, research and discussion need to include all ramifications of the issue, the search for effective solutions need not be all encompassing from the start. Indeed, this search may be more promising if it focuses on specific aspects in respect of which progress could realistically be made, provided one does not loose sight of the overall picture and takes into account the general directions which should guide the search for solutions generally.




  1. The CGIM notes several recent initiatives of States to co-operate internationally – at the bilateral, regional and global level – on international migration. It also notes, however, the connection that exists between national policies on international migration and efforts to respond at the multilateral institutional level. If national policies are not adequate, international policies risk being inadequate. At the national level, lack of coherence – between migration policies and other fields, in particular economy and development; lack of co-ordination of policy-making and implementation – for example between too many ministries; lack of capacity – in particular in the poorest countries; and lack of co-operation with other States, notwithstanding that “[t]he very nature of trans-national migration demands international co-operation and shared responsibility”62 are still widespread. If the promotion of co-ordination at the national level, involving various stakeholders can be institutionally linked with sustained direct international co-operation between States – as is done by the treaty techniques developed by the Hague Conference – then these two major objectives will reinforce each other.



  1. There is no lack, at the global level, of treaties providing normative frameworks that affect or are specially designed to protect international migrants. They include the UN universal human rights instruments, various ILO Conventions, the 1993 Vienna Convention on Consular Relations, the two Protocols on trafficking in persons and on migrant smuggling to the 2000 UN Convention against Transnational Organised Crime, and, in particular, the UN International Convention of 18 December 1990 on the Protection of the Rights of All Migrant Workers and Members of Their Families, which includes many of the provisions found in the other treaties mentioned. Although the 1990 Convention came into force on 1 July 2003, after ratification by 30 States, and is presently in force among 34 States,63 States from the industrialised world in particular have been hesitant to join this Convention, one important reason being that the Convention contains detailed rules applying to all migrants, and does not allow differentiation between migrants who move in a regular and those who move in an irregular manner, nor between migrants who settle permanently and temporary workers. Pending further developments with regard to the 1990 Convention, complementary initiatives are called for.




  1. At the global level important informal initiatives are under way. The Commission on International Migration built on pioneering work done in the context of the Berne Initiative’s International Agenda for Migration Management, and the Hague Process on Refugees and Migration which is a follow-up to the Declaration of The Hague on the Future of Refugee and Migration Policy.64 At the global institutional level, a UN Special Rapporteur on the Human Rights of Migrants has been appointed. The ILO, the International Organisation for Migration (IOM), UNHCR, among others, have initiated important programmes and dialogues. The UN General Assembly will hold a High-Level Dialogue on Migration and Development later in 2006. Co-ordination of all these initiatives is clearly of utmost importance, and the debate continues on the possibility to bring, in the longer term, these various activities under the umbrella of one organisation, be it a new agency, merging UNHCR and IOM, bringing IOM into the UN system, etc. At the regional level, the European Council agreed in November 2004 on the Hague Programme for Strengthening Freedom, Security and Justice in the European Union, with important orientations concerning partnerships with third countries and regions of origin and transit.65 At this point, however, it would seem that there is not at the global level consensus on the introduction of an effective governance system for international migration.



IV. Possible application of some “Hague” co-operation techniques to specific issues of international migration


  1. The phenomenon of international migration is of such scale and complexity that progress in terms of international governance at the global level may well be best achieved incrementally. This would suggest that efforts should be made to identify certain areas, where there may be a sufficient commonality of interest and support among a core group of countries of origin, transit and destination, to establish, for those areas, a multilateral legal framework, that would define certain responsibilities of the States parties, create a mechanism for regular mutual information and co-operation to implement those responsibilities, provide for regular review meetings, and permit further development on that basis. The focus should be on cross-border aspects, where the need and justification for international co-operation are obvious.



    Subject to further study, research and discussion, the following might be some of these areas:




    a. Co-operation in the implementation of temporary labour migration programmes agreed between countries of origin and countries of destination.

    b. Co-operation to ensure the orderly return and resettlement of migrants in other cases where this return is agreed between countries of origin and countries of destination.

    c. Co-operation in establishing and monitoring a system of licensing and regulation of intermediaries involved in facilitating international migration.

    d. Co-operation with regard to facilitating the easy and low-cost transfer of remittances sent home by international migrants.





A. Co-operation on temporary labour migration programmes


  1. As we have seen,66 temporary and circular labour migration programmes are widely used among some countries in particular in Asia. While traditional immigration countries may continue to prefer permanent arrangements, temporary programmes are likely to appeal increasingly to countries of destination faced with public opposition against increased permanent immigration, but also to countries of origin which may gain more from migrants who return sharing their know how and resources acquired abroad than when they stay abroad.67 In order to implement such programmes, and to protect the interests of the migrants concerned, both countries of origin and receiving countries must assume certain responsibilities, and consult and co-operate on a regular basis. For example, countries of origin should ensure that such migrants will be well documented, will be free to leave the country, be assisted in keeping contact with their families, and have the right to return and re-integrate there. Countries of destination should provide full information to the migrants, prior to their departure from the country of origin, about their rights and duties and employment conditions, provide the necessary visas, provide work permits, monitor the implementation of work and residence permits, etc. A responsible designated governmental body (in “Hague Conference” terms: a Central Authority) in each country would co-ordinate the implementation of the programme internally, and communicate and co-operate with its counterparts in the other treaty countries in order to ensure the implementation of the programme internationally. Regular consultations and review meetings among these governmental bodies, with the participation of representatives of international organisations, employers’ organisations, trade unions, migrant organisations, etc. would promote the exchange of practical experience, lead to better understanding, allow good practices to be developed.



B. Co-operation on orderly return and resettlement


  1. Outside temporary labour migration programmes, there may be other instances where a multilateral legal framework, based on mutually agreed principles could bring benefits. Where migrants have an irregular status and their return is appropriate, their orderly return should be facilitated where possible on a voluntary basis. This will be easier when countries of origin and of destination agree on return schemes, and co-operate in implementing them. They may also agree to co-operate in certain cases where compulsory return is the only appropriate option. Countries of destination need to ensure that returns of migrants are arranged with full respect for their human rights. Countries of origin should make consular services available to their nationals who are subject to removal, and on their return should re-admit them to their territory. The designated responsible government body could provide the internal co-ordination and international exchange of information and co-operation. Regular review meetings of these governmental bodies, with the participation of international organisations, migrant associations and other stakeholders, would gradually improve international understanding and practical co-operation in this area. Such meetings could also be useful to exchange experiences with development assistance programmes that are increasingly used to support the resettlement and durable re-integration of returning migrants.


C. Co-operation on licensing and regulation of intermediaries



  1. Trafficking (without the consent of the victim) and smuggling (with the migrant’s consent) – as noted above,68 the two cannot always be neatly distinguished in practice – can only be effectively combated through multilateral co-operation between countries of origin, countries of destination, and transit countries. While criminal prosecution is an essential component in the fight to reduce these crimes and negative practices,69 in an incremental approach as envisaged here, a multilateral framework might start at the other end, and develop a system of licensing and regulating the activities of agents involved in the recruiting of foreign workers. A parallel may be drawn here with the Hague Intercountry Adoption Convention, which, among other objectives, seeks “to establish a system of co-operation amongst Contracting States to ensure that [the] safeguards [established by the Convention] are respected and thereby prevent the abduction, the sale of, or traffic of children”, and to that end provides basic rules on the conditions under which adoption agents (“bodies”) may be accredited by each Contracting State, on the criteria they should meet, the authorisation they need in order to act in other Contracting States, as well as for the notification of their names and addresses to the Permanent Bureau of the Hague Conference.70 In a similar manner, countries of origin and of destination of international migrants might agree on certain minimum requirements as to expertise, experience, financial structure and objectives, and supervision to which any agencies involved in the recruitment of international migrants should be subject, and establish a system of licensing on that basis. Licensing and supervising the agents might be the responsibility of the government bodies designated under the treaty framework.71 Regular review meetings, with the participation of other international organisations, migrant associations, etc, would accumulate experiences with the licensing and regulation system, contribute to regularising international migration and, by clarifying positive standards, facilitate the co-ordinated fight through criminal law against breaches of these standards.


D. Co-operation with regard to facilitating international remittances


  1. As we have seen,72 remittances sent home by international migrants are critical as a major source of income for many countries of origin, and their importance continues to grow fast. Of course, they are private money, and are not to be appropriated by States. However, there is a role for States to see to it that these money transfers are not unduly regulated, or made difficult or expensive by the formal banking channels. If easy access is provided to these channels, their fees are fair and the exchange rates they are offering reasonable, then their use will be promoted. As an additional benefit, the risk that migrants and their dependents will resort to clandestine, money laundering networks will be reduced. The designated responsible government bodies in countries of destination should take steps to facilitate access to and ensure transparency of the financial market, and those in countries of origin should make sure that families, in particular in remote areas, have access to financial services and receive their money. Assistance may be given to counsel migrants, recipients and communities in countries of origin to make effective use of remittances. Some bilateral agreements (for example, between the Netherlands and Morocco) already provide for such arrangements. Regular review meetings of these governmental bodies with the participation of international organisations, representatives of the financial sector, micro-finance organisations, migrant associations, etc. would yield valuable information on current practices, promote better procedures, stimulate new initiatives, etc. They might also promote collective remittances that may benefit whole communities rather than individual households, and stimulate matching funds from public sources. If successful, this form of international co-operation might be extended to other critical financial issues of international migration, including the problem of the transferability (portability) of social security and pensions rights in case migrants return home.



V. Conclusion


  1. It may be that further study and discussion will show that dealing with the four areas mentioned above in one multilateral treaty is too ambitious, or, on the contrary, that other areas might conveniently be added. Indeed, other areas than the four mentioned above might turn out to be promising, or more promising, as the focus of a multilateral co-operative system. The purpose of this Note is to invite reflection on whether the Hague experience might be usefully applied to some issues at the heart of international migration, a phenomenon that conditions so much of the work of the Hague Conference.




  1. It should be stressed that the Note does neither attempt to deal specifically with refugee issues, nor to revise or replace the 1951 Refugee Convention or its 1967 Protocol. On the contrary, the idea would be to create a separate, freestanding framework that will address problems of international economic migrants for which the Refugee instruments were not designed. Indeed, if successful, such a framework could contribute to restoring the refugee instruments to their original purpose of taking care of refugees fleeing persecution.



Hans van Loon
MIGRACIÓN INTERNACIONAL: POR UN NUEVO MODELO DE GOBERNANZA MULTILATERAL
En complemento de la presente sesión especial de la Organización de Estados Americanos sobre el tema de migrantes, el Diálogo de Alto Nivel sobre la Migración Internacional y el Desarrollo que sostuvo la Organización de las Naciones Unidas y el Foro de Migrantes de la Secretaría General Iberoamericana, entre otros foros internacionales, confirma que la migración internacional figura actualmente entre los temas prioritarios de la agenda política internacional, e indica que ésta se ha convertido en un elemento crucial de la globalización. El Diálogo, como la Conferencia Ministerial Euroafricana llevada a cabo el 10 y 11 de julio en Rabat, Marruecos, se concentrará en la relación entre migración y desarrollo. Actualmente, es generalmente aceptado que las desigualdades en materia de desarrollo, además de aquellas democráticas y demográficas (las “3D”), son las fuerzas motrices de la migración internacional. De esta manera, mejorar las condiciones económicas y sociales en los países de origen de los migrantes es uno de los más grandes y próximos desafíos que deberá afrontar la comunidad internacional.
No obstante, la buena noticia es que la migración internacional, bajo algunas de sus repercusiones y en algunas de sus formas puede, por sí misma, contribuir al desarrollo. Bajo algunas de sus repercusiones: las remesas de los migrantes hacia los países en desarrollo han aumentado de forma impresionante en los últimos años, casi triplican la asistencia oficial para el desarrollo de los países de bajo ingreso y constituyen la segunda fuente de financiamiento externo después de la inversión extranjera directa. Y en algunas de sus formas: los programas para los migrantes temporales son cada vez más reconocidos como benéficos tanto para los países de acogida como para los países de origen. Los migrantes a su regreso llevan consigo a sus países de origen los beneficios del conocimiento, los recursos y los contactos que han adquirido en el extranjero. Respecto del trabajo cualificado, la “fuga de cerebros” – particularmente perjudicial en materia de asistencia médica y educación en los países pobres – podría ceder el paso a una “circulación de cerebros”.

La reunión de la ONU dio un nuevo ímpetu a la creación de una estructura global que se ocupe de manera eficaz de algunos aspectos de la migración internacional. Ciertamente es necesario llegar a un acuerdo con respecto a “las mejores prácticas”, pero para que éstas funcionen necesitan estar sostenidas por una estructura de cooperación permanente. Dicha estructura deberá concentrarse en aspectos específicos de la migración, tales como los recién mencionados, pues la cuestión en su conjunto es de tales dimensiones y complejidad que un avance sólo puede hacerse de manera progresiva. Además, toda estructura de gobernanza (gestión) global deberá tomar en cuenta las preocupaciones relacionadas con el menoscabo de la soberanía y el aumento de susceptibilidades políticas. Éstas son singularmente fuertes en la parte industrializada del mundo, donde se tiende a favorecer a las políticas unilaterales más que a la cooperación global, no obstante la naturaleza intrínsecamente mundial de la cuestión.


El problema con algunos de los modelos actualmente en discusión para la gestión global es que estos son considerados como no suficientemente específicos o excesivamente ambiciosos. Por ejemplo, la Convención Internacional de las Naciones Unidas de 18 de diciembre de 1990 sobre la Protección de los Derechos de todos los Trabajadores Migratorios y de sus Familiares, ha sido criticada, especialmente por parte de los países industrializados, porque no permite distinguir entre los migrantes regulares y los irregulares, o entre aquellos permanentes o temporales. El resultado es que aún no ha sido ratificada por ninguna nación industrializada. Al mismo tiempo, ha sido acogido con poco entusiasmo el llamado para una reestructuración de fondo de las actuales instituciones internacionales que se ocupan de migración (el Alto Comisionado de las Naciones Unidas para los Derechos Humanos, la Organización Internacional para las Migraciones, la Organización Internacional del Trabajo). Por consiguiente, tampoco es probable que haya progresos en este frente.
Sin embargo, existe una estrategia alternativa tanto para al catálogo de los derechos de los migrantes, cuya implementación es ampliamente dejada a cargo de los Estados individuales – la Convención de las Naciones Unidas de 1990 – como para los planes para fortalecer o fusionar las funciones de las organizaciones internacionales. Dicha estrategia ha probado su eficacia en cuestiones relacionadas con la migración tales como las relaciones familiares transfronterizas, en particular, la sustracción de los menores por parte de sus progenitores y la adopción internacional de los menores. Para cada uno de estos temas hay actualmente exitosos instrumentos globales multilaterales (los Convenios de La Haya sobre sustracción de menores y sobre adopción internacional) que han creado formas permanentes de cooperación directa entre los países involucrados, con obligaciones bien definidas establecidas para cada una de las partes. La responsabilidad primordial de cooperación se sitúa en un organismo central gubernamental en cada país (Autoridad Central). Dentro de cada país es dicho organismo, el cual, con la participación de diferentes partes interesadas, garantiza la coherencia de la política interna. El Convenio relativo a la adopción también vincula la operación de intermediarios privados en la adopción a un sistema de licencias. La promoción de la coordinación a nivel nacional está de tal modo institucionalmente vinculada con la cooperación internacional directa y continua entre los países, con el objetivo de alcanzar resultados prácticos. Es importante señalar, que los Convenios de La Haya relativos a la sustracción y la adopción han sido ampliamente ratificados.
Las reuniones de estas autoridades centrales y otras partes interesadas celebradas regularmente en el Palacio de la Paz de La Haya permiten el intercambio de experiencias, fomentan la confianza mutua y contribuyen al desarrollo de buenas prácticas. Se enfatiza la prevención a través de la cooperación utilizando técnicas de derecho civil y administrativo, a fin de reducir la necesidad de represión penal posterior. Los excesos burocráticos se mantienen bajo supervisión mutua y constante. De tal manera, el mecanismo multilateral para la cooperación transfronteriza es progresivamente revisado y su funcionamiento mejorado –a costos notablemente bajos. El mismo método está siendo aplicado en las negociaciones que se siguen actualmente respecto de un nuevo instrumento global, que será completado en el 2007, para mejorar el cobro internacional de alimentos con respecto a los niños y otros miembros de la familia.
Es interesante examinar si este modelo “de La Haya” pudiese funcionar en relación con algunos aspectos de la migración internacional, en particular, aquellos donde la cooperación transfronteriza es crucial. Considérese, por ejemplo, a la migración laboral temporal. Pareciera obvio que debe estar siempre basada en una estrecha cooperación entre los países de origen y de acogida, con obligaciones claramente definidas para cada parte y canales de comunicación y cooperación para garantizar el éxito del programa – desde el reclutamiento, vía la colocación y admisión, hasta la salvaguarda de un organizado retorno del migrante. Los acuerdos en materia de migración laboral temporal son relativamente raros todavía, lo cual inevitablemente le resta valor a la eficiencia del programa. Esto debería ser un incentivo para intentar negociar, con la participación de todos los interesados, una estructura global para promover esquemas eficaces de migración temporal. Obviamente, tal estructura deberá definir solamente las responsabilidades fundamentales y proporcionar el mecanismo de cooperación indispensable. Los detalles podrían reglamentarse en acuerdos bilaterales (tal como sucede con los instrumentos “de La Haya”).
Fuera de los programas de migración laboral temporal, bien podría haber otras instancias en las cuales el enfoque “de La Haya” traería beneficios, por ejemplo, cuando existe un acuerdo de base entre los países implicados sobre el regreso de los migrantes irregulares. El tráfico y contrabando de migrantes son otros ejemplos: existe la clara necesidad de desarrollar un sistema concertado y eficaz de autorización y reglamentación para las actividades de los agentes que reclutan a los trabajadores extranjeros. Finalmente, la efectividad de las remesas puede ser perfeccionada si, a través de una estructura de cooperación internacional, se reducen las redes de transferencia clandestinas, se facilita el acceso a los canales bancarios regulares y reuniones periódicas para revisar la estructura ayudan a promover mejores procedimientos y nuevas iniciativas.
¿Es ingenuo pensar que lo que se ha logrado en algunas cuestiones relacionadas con la migración pueda ser aplicado para algunos aspectos de la migración internacional en sí misma? ¡No lo sabremos mientras no lo intentemos!

Hans van Loon
MANAGING INTERNATIONAL MIGRATION: TIME FOR A NEW APPROACH
Along with the present Organization of American States session on migration, the United Nations recently held a High-level Dialogue on International Migration and Development and the Iberoamerican Secretariat a comprehensive summit on the topic. These and other important meeting confirm that international migration has risen to the top of the global policy agenda, and clearly signals that it has become a key issue in the globalisation process. The Dialogue, like the Euro-African Ministerial conference held in Rabat, Morocco, on 10 and 11 July, 2006, focused on the relation between migration and development. There is a near consensus now that differences in development, along with those in democracy and demography (the “3D’s”), are the principal forces driving international migration. Improving economic and social conditions in the home countries of migrants is one of the major challenges ahead.
The good news is that international migration, in some of its effects and some of its forms, may itself contribute to development. In some of its effects: remittances by migrants into developing countries have jumped spectacularly in recent years. They almost triple the official development assistance to low-income countries, and come second as a source of external funding behind foreign direct investment. And in some of its forms: temporary migration programs are increasingly recognized as beneficial to both receiving countries and countries of origin. Returning migrants bring to their home country the benefits of the knowledge, resources and contacts they have acquired abroad. For skilled labour, “brain drain” – particularly detrimental to health care and education in poor countries – may give way to “brain circulation”.
The United Nations General Assembly meeting in September provided a new impetus to the creation of a global framework to deal effectively with some aspects of international migration. Reaching agreement on “best practices” is certainly needed, but in order to work they need to be supported by a permanent co-operative framework. This framework should focus on specific aspects of migration, such as those just mentioned, because the issue as a whole is of such scale and complexity that progress can only be made incrementally. Moreover, any global governance framework should be responsive to concerns about loss of sovereign control and rising political sensitivities. These are particularly strong in the industrialized part of the world, and they tend to favour unilateral policies rather than global co-operation – notwithstanding the inherently global nature of the issue.
The difficulty with some of the models currently on the table for global governance is that they are viewed as not specific enough or as overly ambitious. The 1990 UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, for example, has been criticized, especially by industrialized countries, for not allowing differentiation between regular and irregular migrants, nor between permanent and temporary migrants. The result: it has not yet been ratified by a single industrialized nation. At the same time, the call for a fundamental overhaul of the current international institutions dealing with migration (UN High Commissioner on Human Rights, International Migration Organisation, International Labour Organisation) has met with little enthusiasm. Movement on this front is, therefore, not likely either.
There is, however, an alternative approach to either a catalogue of migrants’ rights, largely left for their implementation to individual States – the 1990 UN Convention –, or to plans to reinforce or merge the functions of international organisations. This approach has proven its effectiveness in migration-related matters such as cross-border family relations. Regulating parental child abduction and intercountry adoption of children offer examples. For each of these issues, successful multilateral global instruments are now in place (the Hague Conventions on Child Abduction and on Intercountry Adoption), which have created permanent forms of direct co-operation between the countries concerned, with well-defined obligations set out for each side. Primary responsibility for the co-operation lies with a central government body in each country. Within each country this body, with the involvement of various stakeholders, ensures coherence of internal policies. The Adoption Convention also ties the operation of private adoption intermediaries to a licensing system. Promotion of co-ordination at the national level is thus institutionally linked with sustained direct international co-operation between countries, aimed at achieving practical results. The Abduction and Adoption Conventions have been widely ratified.
Regular meetings of these central authorities and other stakeholders at the Hague Peace Palace allow for the exchange of experiences, the building of mutual trust, and the development of good practices. Emphasis lies on prevention through co-operation using techniques of civil and administrative law, to reduce the need for repression through criminal prosecution afterwards. Bureaucratic excrescences are kept under constant mutual scrutiny. In this way, the multilateral machinery for cross-border co-operation is progressively reviewed, and made even more efficient – at remarkably low cost. The same approach is being followed in the current Hague negotiations on a new global instrument, to be completed in 2007, to improve the cross-border recovery of child support and other forms of family maintenance.
It is worth examining whether this “Hague” model could work for some aspects of international migration, those where cross-border co-operation is critical. Take, for example, temporary labour migration. It would seem obvious that this should always be based on close co-operation between countries of origin and of destination, with clearly defined obligations on each side, and channels for communication and co-operation to ensure the success of the program – from recruitment, via placement and admission, to safeguarding the orderly return of the migrant. Yet, agreements on temporary labour migration are relatively rare, which inevitably detracts from the program’s efficiency. This should be an incentive to try and negotiate, with the participation of all concerned, a global framework to promote efficient temporary migration schemes. Of course, such a framework should only define basic responsibilities, and provide for the essential co-operative machinery. The details could be left to bilateral arrangements (as is the case for “Hague” instruments).
Outside temporary labour migration programs, there may well be other instances where a “Hague” approach could bring benefits, for example where there is basic agreement between the countries involved about the return of migrants with an irregular status. Trafficking and smuggling of migrants are another example: there is a clear need for the development of an agreed and effective system of licensing and regulating the activities of agents involved in the recruiting of foreign workers. Finally, the effectiveness of remittances may be improved if, through an international co-operation framework, clandestine money networks are reduced, access to formal banking channels is facilitated, and regular meetings to review the framework help to promote better procedures and new initiatives.
Is it naïve to think that what has been achievable in some migration-related matters can be done for some aspects of international migration itself? We won’t know until we have tried!




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