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.
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.
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.
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
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.
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
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
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
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
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.