Improving the Governance of International Migration

The Transatlantic Council on Migration

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• Publisher: Bertelsmann Stiftung
• Year: 2012
• ISBN:
  9783867934206
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Contemporary states are ambivalent about the global governance of migration: They desire more of it because they know they cannot reach their goals by acting alone, but they fear the necessary compromise on terms they may not be able to control and regarding an issue that is politically charged. Currently, there is no formal, coherent, multilateral institutional framework governing the global flow of migrants. While most actors agree that greater international cooperation on migration is needed, there has been no persuasive analysis of what form this would take or of what greater global cooperation would aim to achieve. The purpose of this book, the Transatlantic Council on Migration's fifth volume, is to fill this analytical gap by focusing on a set of fundamental questions: What are the key steps to building a better, more cooperative system of governance? What are the goals that can be achieved through greater international cooperation? And, most fundamentally, who (or what) is to be governed?

Section III: The Thickening Web of Cooperation on International Migration

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The Governance of International Migration: Gaps and Ways Forward

Alexander Betts

Introduction

There is no formal or coherent multilateral institutional framework regulating states’ responses to international migration. Even within the United Nations (UN) system—the seat of frequent debate on the issue—there is no specific migration-focused organization. As a result, sovereign states maintain a significant degree of autonomy in determining their migration policies.

International migration is a transnational process, however, and no individual nation-state can address all its challenges alone. In fact, by definition, migration involves at least two states—a sending country and a receiving country (and more often than not, additional nations, too, are affected by the policies of one or both). To address these unavoidable interconnections, the degree and scope of international cooperation on migration is increasing, with states developing a range of bilateral, regional, and multilateral arrangements, often through informal channels outside the framework of the UN system.

In recent years, debate over the global governance of migration has become more focused on which forms of international cooperation can best meet states’ interests. At the policy level, reports such as the 2002 Doyle Report²⁰ and forums such as the Global Commission on International Migration (GCIM, 2003–2005) outlined gaps in the in-stitutional architecture governing migration. The Global Forum on Migration and Development (GFMD) emerged as a site for multilateral dialogue on migration, and the UN High-Level Dialogue on Migration and Development (UNHLD), planned for 2013, will focus on the multilateral institutional architecture regulating migration. Meanwhile, within academia, a number of recent publications address issues of global migration governance, exploring both its definition and ways to measure what “better” migration governance might look like (Betts 2011; Hansen, Koehler, and Money 2011; Koser 2010; Koslowski 2011; Kunz, Lavenex, and Panizzon 2011; Newland 2010).

The concept of global migration governance remains controversial, however. For many Northern—primarily migrant-receiving—states, global governance is resisted because it is seen as implying binding norms, formal multilateralism, and, most probably, an obligation to work within the UN system. The concern is that formal multilateral agreements risk reducing states’ sovereignty and ability to autonomously determine their own immigration policies. In contrast, many Southern—primarily migrant-sending—states are more enthusiastic about formal multilateralism, which is often seen as a way of enhancing their influence over Northern states’ immigration policies. With little progress on the development of formal multilateral institutions, there is therefore extremely limited global migration governance, in contrast to other transboundary issues.

However, global migration governance is not reducible to formal multilateralism. A significant—and growing—set of migration governance mechanisms is emerging at the international level. A few are multilateral, but the majority function through the interaction of informal networks and formal bilateral agreements. States increasingly participate in so-called regional consultative processes (RCPs) in order to share information and best practices, which then contribute to the elaboration of formal bilateral—or, occasionally, regional and inter-regional—migration agreements. In sum, the interaction of informal networks and formal bilateral and regional agreements—rather than formal UN-based multilateralism—is how most global migration governance is achieved today.

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In the absence of formal multilateralism, this chapter critically reflects upon how migration is being governed at the international level, where there are gaps, and how those gaps might best be addressed. In particular, it explores the question of the appropriate balance between multilateral, regional, and bilateral agreements, as well as which levels of governance are likely to be most effective for which context. The chapter is divided into four parts: first, it outlines the current approaches to governance at the international level; second, it assesses the major gaps that exist in governance; third, it explores how best to build on existing institutions to fill those gaps; and, finally, it concludes with a range of questions to be considered when charting the future of global migration governance.

Current Approaches at the International Level

Global governance can be defined in either procedural or substantive terms. On a procedural level, it can be understood as the process by which states engage in collective action to address common problems arising around a particular issue. This process involves agenda-setting, negotiation, monitoring, implementation, and enforcement. On a substantive level, global governance is identifiable by the norms, rules, principles, and decision-making procedures that regulate the behavior of states (and other transnational actors) in a particular issue area.

In most policy fields that involve transboundary movements across borders—such as climate change, international trade, finance, and communicable disease—states have developed institutionalized cooperation, primarily through the UN system. However (and as previously noted), despite the inherently transboundary nature of international migration and the interdependence of states’ migration policies, a formal framework governing how states respond to international migration does not exist.

In this context, it is easy to overlook the existence of global migration governance today. While it may be factual that global migration governance within a formal multilateral context—in particular, that of the United Nations—remains limited, and that progress on the “migration and development” debate within the United Nations is also limited, this does not mean that there is no global migration governance. The governance mechanisms that exist are simply of a different and arguably more complex type than those surrounding many issue areas for which more neatly labeled regimes have emerged since World War II. Indeed, it is possible to conceive of global migration governance as existing at five broad levels: multilateral, embedded, regional, bilateral, and unilateral with extraterritorial scope.

At its first level, several multilateral schemes exist, dating from migration governance’s origins in the years between World Wars I and II. If one divides the global governance of migration into three broad “global mobility regimes” (refugee, international travel, and labor migration), each can be identified as having its origins in the interwar years (Koslowski 2011). The global refugee regime, based on the 1951 Convention relating to the Status of Refugees and the role of the United Nations High Commissioner for Refugees (UNHCR), is the only area of migration that involves formalized UN-based multilateralism (Loescher 2001; Loescher, Betts, and Milner 2008). The international travel regime—insofar as it is a regime—has developed by building on the passport and visa system. Over time, cooperation on technical standards relating to travel document security has become ever more complex, with the International Civil Aviation Organization (ICAO) playing an increasingly important role in setting standards (Koslowski 2011; Salter 2009). Finally, the labor migration regime, although extremely limited, is nevertheless underpinned by a range of labor standards developed through International Labor Organization (ILO) treaties (Kuptsch and Martin 2011). In addition to these more formal areas, the GFMD now provides informal “facilitative” multilateral mechanisms through which states share knowledge practices in ways that contribute to the development of formal bilateral agreements.

In addition, a significant amount of multilateral migration governance might be referred to as embedded governance. The concept of “embeddedness” is widely used in anthropology to refer to a situation in which an aspect of social life does not exist as a recognized and compartmentalized area but is an integrated part of the larger social system. Much of global migration governance is not explicitly labeled as such but nevertheless regulates how states can and do behave in relation to migration. At the level of norms, states’ responses to migration are regulated by their obligations in a host of other areas. For example, a range of public international law shapes the boundaries of acceptable state behavior in the area of migration, such as international human-rights law, international humanitarian law, World Trade Organization (WTO) law, maritime law, and labor law. It is as a result of these embedded institutions that some international lawyers have argued that one may conceive of the existence of “international migration law” (IML) based on these pre-existing bodies of law (Cholewinski, Perruchoud, and MacDonald 2007). Similarly, at the level of international organizations, the mandates of a host of pre-existing UN and non-UN agencies may not explicitly mention migration but indirectly touch upon it.

At a third level, there is a growing amount of regional governance, including inter-regional and transregional governance mechanisms. Formal regional economic communities (RECs) such as the European Union (EU) and treaties such as the North American Free Trade Agreement (NAFTA) have increasingly developed channels for greater internal mobility alongside stronger border controls. Meanwhile, a range of informal networks, or RCPs has emerged, with almost universal coverage (Duvell 2011). RCPs differ from formal regional governance in that they are usually focused on informal dialogue and information-sharing rather than on the creation of new norms. Examples of RCPs include the Intergovernmental Consultations on Asylum, Refugees, and Migration (IGC); the Regional Conference on Migration (RCM); the Bali Process; and the Southern African Dialogue on International Migration (MIDSA). Many RCPs may be understood as transregional insofar as the funding, training, and knowledge on which they are based often comes from outside of the regions directly involved. RCPs are now represented globally, with most states participating in at least one and many countries participating in several. However, the overlap of RCPs creates a risk of duplication and conflict and will require increasing coordination. RCPs carry out a range of functions and differ in terms of the scope and extent of their activities (Hansen 2010).

At a fourth level, there is a complex array of bilateral agreements between states, spanning areas from visas, readmission, circular migration, knowledge-sharing, and border management to rescues at sea. It is these bilateral agreements that make up the most substantive component of global migration governance—many being across regions, along North-South lines, or among neighboring states. For example, the European Union has consciously sought to develop partnership agreements with third countries as part of its migration management efforts. Its Global Approach to Migration policy, beginning with pilot mobility partnerships with Moldova and Cape Verde, has encompassed partnerships on circular migration, irregular migration, and migration and development. (For more on the EU mobility partnerships, see Agnieszka Weinar’s contribution in Section III of this volume.) It is important to be aware that international cooperation—bilateral or otherwise—is not, in and of itself, positive or negative from a normative perspective. Its normative impact depends very much on the content of the agreements and also on the extent to which agreements may be negotiated under conditions of asymmetric power relations. For example, the Italy-Libya partnership agreements on migration have had significant, negative human-rights implications. Meanwhile, looking at other agreements, it is not at all clear that many “partner” states are in an equal negotiating position with their peers.

In addition, one may also conceive of some aspects of unilateralism as comprising global migration governance—insofar as they have extraterritorial scope. Given that one state’s immigration or emigration policies have implications for other states, there is significant policy interdependence in the area of migration. This, in turn, constrains and enables the unilateral actions that can be taken by states. This is a particular challenge in the European Union, where unilateralism in the area of immigration policy is having negative effects on the trust required for internal cooperation. One recent example is Italy’s unilateral action granting temporary residence permits to Tunisian migrants, which has negatively affected the mutual trust underpinning the Schengen system. However, the same logic of interdependence also applies on a global scale, whereby one state’s unilateral choices often constrain other states’ migration policy options. The attempts of emigrant-sending countries—such as the Philippines, India, and Mexico—to engage diasporas may be thought of as a form of global governance, for example. Similarly, when destination states seek to engage in asylum and immigration management through unilateral policies that exert forms of external control over other states and their populations, their actions might also be thought of as global migration governance.

Emerging Challenges to International Cooperation

Assessing gaps in governance depends very much on one’s perspective (e.g., if one is a government policymaker, nonstate actor, individual migrant, etc.) and, thus, it is difficult to offer a comprehensive account. That said, if one takes the perspective of states, it is possible to identify areas in which international governance might be improved, thus enabling states to more effectively meet their collective interests.

On a substantive level, a range of emerging challenges requires new forms of collective action to meet states’ shared interests. One way of dividing the field of migration is to think in terms of three broad areas: refugees (human rights), irregular migration (security), and labor migration (economy). In each area, states face both positive and negative externalities as a result of the choices and policies of other states. Positive externalities can be maximized and negative externalities minimized through collective action.

Refugees

The nature of cross-border displacement is evolving in ways that challenge the existing international refugee regime. Mass-influx situations as a result of humanitarian emergencies pose a long-standing challenge. They require international burden-sharing in order to support host states financially or through resettlement. The absence of any clear framework on burden-sharing constrains regional responses to mass influx, especially in the context of crises such as the one witnessed in Libya in 2011. The nature of cross-border displacement is also changing. Today, a growing number of people are crossing borders in desperate situations that fall outside the framework of the 1951 Refugee Convention. There is no international agreement on which rights violations may entitle people to flee the complex interactions of environmental change, food inse...

Table of contents

• Title Page
• Copyright Page
• Introduction
• Section I: The Transatlantic Council on Migration
• Section II: Setting the Stage
• Section III: The Thickening Web of Cooperation on International Migration
• Section IV: An Expert Perspective on Human Rights and International Law
• Section V: Policymakers’ Corner: Reviewing the Past and Gauging the Future
• Immigration Resources
• About the Transatlantic Council on Migration
• About the Authors