The Model International Mobility Convention: Finding a Path to a Better International Mobility Regime

The Model International Mobility Convention: Finding a Path to a Better International Mobility... Abstract After nearly two years of study and debate convened by the Columbia Global Policy Initiative's International Migration Project, the Model International Mobility Convention (MIMC) represents a consensus among over forty academics and policymakers in the fields of migration, human rights, national security, labor economics, and refugee law. The MIMC provides a holistic and rights-based approach to international mobility that integrates the various regimes that seek to govern people on the move. In addition, it fills key gaps in international law that leave many people unprotected by establishing the minimum rights afforded to all people who cross state borders—whether as visitors, tourists, students, workers, residents, entrepreneurs, forced migrants, refugees, victims of trafficking, people caught in countries in crisis, and family members—and defines their relationships to their communities of destination, origin, and transit (The Model International Mobility Convention. 2018. The Columbia Journal of Transnational Law. JTL Special Issue 56(2)). The Global Picture Mobility is a defining feature of the human experience. The movement by our ancestors 120 thousand years ago across, and then (for some) out of Africa, was but the starting point of a global movement of people that would come to characterize our world. Although remaining at just 3 percent of the global population (IOM n.d.), human movement across borders has for the past two decades increased significantly. Today international migrants—defined by the UN as those outside their national or habitual jurisdiction for one year or more—account for 258 million persons worldwide (UN Department of Economic and Social Affairs 2017),1 up from 173 million in 2000 (United Nations 2016). If counted as a nation, international migrants would be the fifth most populous country, larger than Brazil and just smaller than Indonesia (IOM n.d.). Unfortunately, there is also an increasing number of people who move involuntarily. This includes 40.8 million internally displaced people, but also 22.5 million refugees and almost three million asylum seekers who have been forced to leave their countries of origin. The displaced population has doubled in numbers compared to the last decade, and is now at a level not recorded since World War II (BBC 2016). Most of the movement across borders today happens through legal channels, such as the various labor visa schemes that bring labor migrants to economies all around the world. Each year, four million international students travel to access educational opportunities abroad (UNESCO 2013) and 1.2 billion international visitors travel for leisure, to do business or to meet relatives or friends (World Tourism Organization 2017a, 2017b). Nevertheless, the under-provision of such legal pathways and the lack of global regulation and cooperation that has so far characterized international migration leave many people unprotected, undocumented and often exploited by employers, traffickers or others taking advantage of the vulnerability of migrants en route or in destination countries. Against this backdrop, and due to an increasing concern among some states about a perceived loss of control over their borders, the UN has, for the first time in history, initiated a process to develop a more comprehensive and sustainable system for international migration. The aim is to make international migration more safe, orderly and regular, or “Making Migration Work for All,” as the Secretary-General in his recent report on the process chose to frame it (UN Secretary-General 2017). This process was set in motion by the unanimous adoption of the New York Declaration by the UN General Assembly in September 2016, which mandated the organization with developing two global compacts—or international accords—by 2018, one for migration and one for refugees (UN General Assembly 2017). This endeavor hopefully reflects a growing international consensus that there needs to be a more comprehensive approach at the international level to the good global governance of migration. The process to develop a Global Compact for Safe, Orderly and Regular Migration (Global Compact for Migration) is a fundamentally political one. The effort requires 1922 Member States to find common ground—or the lowest common denominator—during a set of negotiations taking place this spring. These negotiations face deep challenges in a current global political reality characterized by: continuing hazards of the Mediterranean crossing, the election of Donald Trump as President in the United States, the Brexit vote in the United Kingdom, bilateral ethnic cleansing in South Sudan, and the expulsion of the Rohingya from Myanmar (Doyle 2018). Indeed, given the increasing nationalist sentiment and a growth in populist political parties in many parts of the world, it might well have to be considered a good outcome if an interstate process on migration manages to reconfirm existing principles and norms. It is equally clear that the Global Compact for Migration cannot be an end in and of itself, as it will undoubtedly fail to provide sufficient answer to the migration challenges that the international community will be faced with in the coming decades. Rather, the Global Compact for Migration should be seen as forming a milestone on the long road toward creating a full-fledged global regime on human mobility. The Model International Mobility Convention (MIMC), developed and debated over two years by an academic commission sponsored by the Columbia Global Policy Initiative (GPI), picks up the larger challenge where this political process is likely to leave off (at least for now). The MIMC identifies a potential structure for a global legal regime on human mobility.3 The MIMC defines, in legal terms, what a global regime on human mobility should look like. In doing so, it envisages mobility beyond the horizons of governance that the negotiators of both Global Compacts are currently mapping and thus offers a vantage point from which to think critically about that process. The MIMC urges the international community to be proactive with regard to mobility and presents some imporant groundwork in this regard. While the MIMC is developed as an ideal framework for mobility, it is also designed to be a realizable one, embodying what States someday should adopt when comprehensively regulating international mobility. The long-run hope underpinning the MIMC—its moonshot—is that the MIMC will gain approval from international organizations and NGOs and, thereafter, that well-motivated countries will take up the MIMC and use it to formulate a comprehensive multilateral treaty on mobility for international adoption.4 In this article, we comment on some of the central features of the MIMC, which legal gaps it seeks to fill, which rights it seeks to extend, and what concerns it might help address. We next discuss the proposects for the acceptance of the MIMC and what it represents among stakeholders and States with divergent interests and priorities. By doing so, we wish to turn the spotlight to the advocacy work the supporters of the MIMC have in front of them to ensure its success in inspiring a future comprehensive global mobility regime. The Flaws and Gaps in International Legal Frameworks Governing Migrants and Refugees One major flaw in the current global migration regime is that existing international legal instruments governing migration are underdeveloped and undersubscribed. The two major international treaties governing migrants and refugees, the 1990 UN Convention on the Rights of Migrant Workers and Members of their Families (the Migrant Workers Convention or MWC) and the Refugee Convention of 1951 and its 1967 Protocol (the Refugee Convention), have significant gaps and flaws. First, the international legal regime on labor migration remains very weak despite the fact that nearly half the world’s migrants are migrant workers (ILO 1990).5 The Migrant Workers Convention has not been adopted by countries of net-immigration. It has been criticized for simultaneously over-privileging and under-protecting migrants. By extending rights such as access equal to nationals in subsidized housing, higher education and health care, the MWC burdens destination countries with extensive social welfare sectors and indirectly encourages them to under-provide legal pathways for labor migrants. An unintended consequence of this regime appears to be that net-immgrantion countries that extend such benefits to their migrant communities leave some jobs unfilled rather than allow additional migrant workers into their country—limiting job opportunitites for migrants and leaving jobs unfilled for employers (Ruhs 2013). The extensive set of rights afforded to migrant workers by the MWC is thus one of the reasons that it has very few ratifications by countries of net-immigration because as it has not been seen as meeting their interests.6 At the same time, the MWC fails to assure the multiple visas and portable pensions that temporary workers would need to make their employment fair and sustainable. These gaps, in turn, have encouraged irregular migration, making migrants vulnerable to exploitation and abuse (ILO n.d.).7 Second, the Refugee Convention, although a laudable cornerstone treaty underpinning the global refugee regime, does not adequately reflect contemporary circumstances and reasons for flight (United Nations 1951). The nature of conflict has changed in recent decades. Labor migrants and refugees increasingly mix in their attempts to find safety, increase their economic prospects or both (Long 2015) (Angenendt, Kipp, and Amrei, 2017). Those that do not squarely fit in the narrow definition of a refugee spelled out in the Refugee Convention rely solely on a progressive reading of the law by States and asylum officers, something highly subject to change, discretion, and political whim.8 Labor migrants and refugees include those that have been forced to leave their countries because of severe economic deprivation, gang violence, natural disasters or climate change, and whose lives may be equally manifestly threatened. The current refugee regime, moreover, contains an inherent paradox: on the one hand, refugees have a right to nonrefoulement—not to be expelled—once in the territory of another State; but on the other, these refugees have no right to enter a state to make a claim for international protection (United Nations 1951). This contributes to the devastating dynamics on display across the globe today where migrants face extremely dangerous conditions to enter states irregularly on inadequate vessels or through vast deserts with the help of human smugglers to access the opportunity to claim international protection. Finally, another weakenss of the current regime is that once refugees gain protected status the Refugee Convention grants them rights equivalent only to other aliens (United Nations 1951), which may not include rights to employment or access to higher education, unless the country of asylum chooses to do so. However, as the thinking has shifted in recent years toward migration and refugees as a development issue—an approach highlighted in the 2030 Agenda for Sustainable Development (United Nations 2015) and a recent World Bank report (World Bank Group 2017)—it has become widely recognized that refugees should be given access to work and educational opportunities in host countries to become self-reliant and to be able to contribute to their host societies. Nevertheless, today some developing countries that can least afford the cost, including Lebanon, Jordan, Turkey, Pakistan, Iran, Ethiopia, and Kenya, are carrying a disproportionate burden by hosting 85 percent of the world’s forcibly displaced (UNHCR 2017). Clearly, much more substantial global responsibility sharing through adequate funding or resettlement to third countries is required at the international level. Despite the flaws of the international instruments governing some—although far from all—aspects of international migration, governments have in many cases proven to be more protective than these frameworks require. This is especially true for governments guided by national and regional frameworks that are more progressive than global treaties.9 Thus, in addition to reaffirming the existing rights afforded to mobile people in various international, albeit flawed, frameworks (and the corresponding rights and responsibilities of states),10 the MIMC borrows from such national and regional developments to expand basic rights (where warranted) to fill the growing gaps in protection and responsibility that are leaving people vulnerable. In doing so, the MIMC takes the important step of defining and putting into one legal framework issues that are currently under distinct and separate regional or national governance regimes. In doing so, the effort establishes a common international floor of protections applicable to all persons on the move no matter where they are and not just within a few rights-respecting States.11 Creating a Holistic Global Regime on Mobility The unprecedented scope of the MIMC is its single most distinctive feature. Indeed, to develop a holistic approach to human mobility that fills the gaps in international protection, regulation, and cooperation, it was important to identify the particular rights and responsibilities appropriate to a wide range of individuals as they move across borders (Model International Mobility Convention 2017). The resulting 213 articles across eight chapters identify a wide range of migrants—visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, and refugees—and the ladder of increasing rights appropriate to each status. This comprehensive catalog of rights not only creates a framework for the 258 million international migrants, but also for the over four million international students obtaining their education abroad and the 1.2 billion international visitors worldwide. In addition, the MIMC adds a number of novel regulations and protections for areas of human mobility that until now have largely lacked coverage by any existing global regime, including visitors, migrant residents (those who are not employed, retirees, etc.) and temporary migrant workers. By putting these categories of mobile people under one single framework for the first time, the MIMC acknowledges that labor migrants and refugees are but variants of a more generally mobile population, whose movement across borders for any length of time and for any particular reason is part of the larger phenomenon of globalization. Moreover, it contributes to emphazising the fluidity and interchangeability across categories of migrants: a student or a refugee may become a worker; a migrant worker may become a refugee; or a victim of trafficking may become stuck in a country undergoing a crisis. By placing mobility at its core, the MIMC emphasizes the complexity and nonlinearity of the human experience while establishing the particular rights and duties of each kind of mobile person as she or he moves across borders. This represents an important departure from the current global migration regime, which is largely predicated on the binary refugee versus migrant categorization. The MIMC likewise takes an important step away from the Migrant Workers Convention. The MIMIC introduces a category of migrant workers—temporary migrant workers—whose rights and benefits under the MIMC can be subject to a number of clearly delineated permissible modifications for a limited period of time.12 These provisions are designed to bring to bear the potential for a win-win outcome both for, on the one hand, states who are looking for labor migrants to fill shortages in their labor markets, and, on the other, migrants looking for opportunities to work abroad. The underlying logic of the introduction of a new legal definition of a subset of migrant workers is that States will likely be more willing to accept a larger number of labor migrants and provide more legal pathways for short-term labor migration if they can apply a more limited set of rights, thus leading to a net improvement over the current widespread nonapplication of migrant workers’ rights and opportunities to gain employment abroad. With regards to refugees, the MIMC’s most important improvement over the current regime is its expansion of the Refugee Convention’s narrow definition of grounds for protection through the introduction of the category of “forced migrants.” This category is defined by a “serious harm” standard (an external threat to life or arbitrary incarceration) that goes beyond just State-based persecution. It covers people fleeing from life-threatening drought or floods, such as are increasingly caused by climate change (Sengupta 2017) or from civil wars and generalized violence.13 The MIMC moreover provides equivalent rights for refugees and forced migrants and offers rights equivalent to nationals, rather than to aliens, without a waiting period, thereby ensuring access to important rights such as the right to employment and education. Addressing the nonrefoulement versus no right to enter paradox, the MIMC specifies that there is a right to enter if fleeing directly from persecution or threat to life (Model International Mobility Convention 2017). At the Crossroads between Realism and Idealism The Commission’s substantive method in developing this Model Convention was normative. Rather than a restatement of the law,14 our method was closest to what John Rawls refers to as a “Realistic Utopia.” This is a system that requires using what we know about attitudes, preferences, and institutions; then joining “reasonableness and justice with conditions enabling citizens to realize their fundamental interests …” (Rawls 1993).15 It builds on Rousseau’s injunction to legislate for “Men as they are, laws as they might be” (Rousseau 1893).16 In practice, this means reflecting the world as it is and building a movement toward justice that existing, but better motivated, governments could endorse. It is not an objection to the underlying premise of the Model Convention to say our articles do not correspond directly to existing treaty commitments or policy. It is an objection, however, if you believe that governments should not be willing to endorse these articles. Although the scholars and practitioners constituting the Commission had differences of opinion when debating the Convention text, they all agreed on the fundamental normative principles underpinning the project, namely basic human rights, human dignity and the duty to protect refugees. The result is that the MIMC adopts a rights-based approach that seeks to extend to all types of migrants the widest array of entitlements consistent with their status. Nevertheless, throughout the debates and conversations leading up to the MIMC, there has been a tension between the utopian and realist aims outlined. There was also tension between idealists and realists among the Commisison members. This was maybe most evident in the discussions of Chapter V on forced migrants and refugees, which saw many revisions before the one included in the final MIMC was eventually agreed upon. Commission members were largely split between two considerations: on the one hand, the need to update the current refugee regime based around the Refugee Convention to make it more reflective of current dynamics and protection issues; and on the other hand, there was concern among the Commmission members over the unwillingness to upset the guarantors and implementors of that regime. Some members were legitimately’ concerned that any interference with the Refugee Convention will lead to an overall weaker refugee regime. States, the argument went, would, if asked today, not be likely to widen the scope of protection as the MIMC in fact does. After weighing these considerations against each other during extended discussions, the Commission agreed, through majority decision, that the former consideration—the concern for signing a Refugee Convention again—would define the MIMC. Chapter V merged the two categories of refugees and forced migrants, thereby recasting refugees as but a subset of the broader category of forced migrants. This, in the majority’s mind, reflects a more coherent picture of what a future comprehensive and adequate international protection regime should look like. The Path to Acceptance among Mobility Stakeholders The MIMC undoubtedly strengthens the human rights claims of all those crossing borders and the biggest winners are, naturally, those who are mobile. Refugees get adequate protection to save their lives through a right to enter other states (not just protection against refoulement upon entrance). Unskilled migrants get increased access to job opportunitites and thereby a chance to multiply their incomes by a factor of ten. And skilled migrants find a ready market for their skills. Acceptance by mobile persons is thus reliable.17 But how to ensure acceptance by States given this significant expansion of rights under MIMIC? Needless to say, no one expects xenophobic leaders such as Donald Trump, Marine Le Pen, or Nigel Farage to sign onto the MIMC. Rather, the aim is to target centrist leaders of the future and envision these politicians with a more open attitude to immigration and a cosmopolitan bent to support this Convention. It might be possible to see more moderate politicans of today—say Canada’s Justin Trudeau, Germany’s Angela Merkel or France’s Emmanuel Macron—signing such a Convention, as MIMIC. One can start to reflect on this possibility by asking why the Migrant Workers Convention failed to attract any signatures from net immigration states (beyond negotiating in bad faith, which some States might well have done). Given that the track record in achieving international cooperation on labor migration, why would those same states choose to sign the MIMC? First, a fundamental obstacle in establishing an international regime governing labor migration is that foreign labor, especially low-skilled labor, is in abundant supply. According to a recent Gallup study, up to 700 million people would migrate internationally if given the opportunity to do so (Tsabutashvili 2017).18 Destination States have a large international labor pool to pull from during economic upturns, either through bilateral agreements or simply by opening labor markets to migrants, setting their own unilateral terms. There is little incentive for these States to make international commitments to keep labor markets open during economic downturns (Koslowski 2011).19 The MIMC attempts to solve this unfortunate dynamic by including provisions on labor migration that expand rights and are economically optimal for states. For example, portable pensions can increase labor market flexibility and make it more likely that temporary migrants will resist pressures to remain in the destination country. Similarly, multiple entry visas and other circulation-friendly visa policies increase the likelihood that people will go home, safe in the knowledge they can come back. The MIMC also includes a suggestion for a specific cooperation mechanism for the facilitation of an efficient labor mobility regime through a Mobility Visa Clearing House (Model International Mobility Convention 2017). In short, the MIMC respects, more so than does the Migrant Workers’ Convention, the interests and constraints of destination countries (Hansen 2018). Countries of origin, meanwhile, although losing some skilled labor, gain USD $432 billion per year in remittances (World Bank Group 2016), three times more than total foreign aid flows (UN Secretary-General 2017). With regards to refugees, the proposals to expand the scope and increase the rights offered to those in need of international protection are coupled with the creation of mechanisms that improve the prospects for responsibility sharing among states. This is done through the establishment of a Responsibility Sharing procedure (modeled after the Paris Climate Agreement) to help countries pledge and implement commitments to extend funding and resettlement opportunities for refugees and forced migrants.20 The Responsibility Sharing scheme is connected to the Visa Mobility Clearing House for migrant workers, as forced migrants and refugees are provided resettlement opportunities by gaining priority access to a quota of labor visas under the latter (without losing their protected status (Model International Mobility Convention 2017). Finally, the MIMC introduces a consideration of capacity to provide assistance to refugees and forced mgirants, borrowing from the EU asylum proposal (European Commission 2015).21 Through these provisions, the Model Convention curtails arbitrary distribution of duties of asylum seekers based predominantly on proximity, which currently puts neighboring countries under disproportionate migration and refugee pressures. The MIMC’s balancing of state interests and migrant rights create important incentives for states to accept it, and the introduction of cooperation mechanisms serve to uphold these incentive structures. In addition, there are reciprocal benefits exclusive to states that join the MIMC. These benefits are not necessarily directly reciprocal: unlike the international trade regime, the acceptance of a treaty-established regulatory framework on migration cannot be ensured by the threat of retaliation; workers in developed countries do not benefit much from gaining access to labor markets in migration origin states of the developing world. Finally, States are not likely to be moved by: “if we don’t take their refugees, they won’t take ours.” Nevertheless, the MIMC, if read in its entirety, does include elements that together create diffuse reciprocity and which can prove to be attractive to states if they, as is the intention, adopt it as a package (Keohane 1986). This diffuse reciprocity is based on the issue linkages that the MIMC creates by depicting mobility as a spectrum. If it is a spectrum the approach steps away from the siloed approach of refugees versus migrant permeating the current legal regime. Such issue linkages increase the incentives of all states to cooperate. For example, countries who might not be interested in joining an international regime to facilitate labor migration are nevertheless likely to be interested in joining a global regime that facilitates the arrival of foreigners who come to spend money on lodging, meals, and entertainment. In 2016 alone, international tourism generated USD $4 trillion, 5 percent of global GDP, adding 145 million jobs worldwide (World Travel Tourism Council 2017).22 Similarly, foreign students spent USD $32 billion in the U.S. alone in 2015 and generated 400,000 jobs (NAFSA 2016). The supply of international tourists and students cannot be taken for granted and can shift away from states that erect barriers to international travel toward those states that do not. By placing the rules regulating the cross-border movement and rights of visitors, tourists and students together with those regulating migrant workers, investors and migrant residents, refugees, forced migrants and asylum seekers, the MIMC links cooperation on international travel to cooperation on migration and refugees and on development and border security. For example, by signing onto the MIMC, countries such as the U.S. and those in the EU benefit from universal machine readable and biometric passports to improve security at the border (Model International Mobility Convention 2017). In other words, destination countries overall, indirectly and collectively, gain a more regularized, orderly—and thus profitable—regime for the movement of people. By focusing broadly on mobility—and the larger terrain of overlapping state interests, from travel, tourism and education, to labor and humanitarian assistance, that this entails, the MIMC creates the groundwork for a “richer network of interlocking, interdependent, and mutually beneficial” forms of multilateral coordination and cooperation (Koslowski 2018). Policymakers and diplomats negotiating the Global Compacts could no doubt benefit from using this approach in the coming months. Conclusion The MIMC identifies a better future regime for migration and mobility. It addresses and fills the dangerous gaps in existing international law. It displays coherence through a comprehensive set of potential rules, using language that is clear, and action-, rights- and duties-oriented. By demonstrating what a better international mobility regime could look like, we hope to take away any undue concerns, assure uneasy publics, and inspire action. While a stronger emphasis on issue linkaging and diffuse reciprocity will certainly help to increase the likelihood that States will some day in a future not too far away accept the MIMC, acceptance will also call upon reserves of ethical solidarity “enforced” by common decency and ethical responsibility (plus in the background naming and shaming). States must recognize the huge impact mobility has on economic growth, development and security for all countries and acknowledge the need to establish a system that recognizes the human dignity of all. The Global Compact processes and the general acknowledgement of their close relationship to 2030 Agenda is a promising sign in this regard. While national political currents are less encouraging and these do not seem to be auspicious times for creative, multilateral humanitarianism, we are convinced that it is nevertheless better to do the analytical work now, when times are inauspicious, so that the hard work of the diplomats will be that much easier when the sun of cooperation shines again and the international community is ready to seize the moment to make a comprehensive multilateral treaty for migrants and refugees. The authors thank Randall Hansen, Rey Koslowski, and Sarah Rosengaertner for their suggestions. This article draws on and builds on Michael Doyle, “The Model International Mobility Convention”, The Columbia Journal of Transnational Law (2018). Footnotes 1 The UN definition of a migrant measured in this data is someone resident in a country not of his or her birth for more than one year. 2 The U.S. officially ended its participation in the GCM process in December last year. See: https://www.state.gov/secretary/remarks/2017/12/276190.htm 3 The International Mobility Commission is composed of academic and policy experts in the fields of migration, human rights, national security, labor economics, and refugee law. For a full list of Commission members, see http://globalpolicy.columbia.edu/mobility-convention. The forty-plus Commission members went through a single-text process of negotiation prepared by a Secretariat team at the Columbia GPI. Then, over a period of two years, the Commission met in person and by video in various configurations to review, edit and rewrite the chapters, producing the final text of the MIMC in April 2017. 4 The successful attempt by civil society to generate the Canadian initiative to begin the Mine Ban Treaty process in the 1990s culminating in its adoption provides an illustrative example of what we eventually hope to achieve. 5 For statistical estimates on the proportion of labor migrant workers, see International Labour Organization. 2015. ILO global estimates on migrant workers, xi. 6 Only Chile and Argentina are countries of net-immigration (2007–2015) among the thirty-eight signatories. 7 “Evidence suggests that poorly governed labour migration can increase the incidence of irregular migration and raise the risk of exploitation for migrant workers and governance challenges for countries of origin, transit and destination.” For borders, see Ian Traynor, “Is the Schengen Dream of Europe Without Borders Becoming a Thing of the Past?,” The Guardian, January 5, 2016, https://www.theguardian.com/world/2016/jan/05/is-the-schengen-dream-of-europe-without-borders-becoming-a-thing-of-the-past; https://perma.cc/9T3N-L7TZ; Noah Buyon, “Hungary to Build (Another) Border Fence,” Foreign Policy, February 24, 2017, http://foreignpolicy.com/2017/02/24/hungary-to-build-another-border-fence/;https://perma.cc/BR3P-6VPH. 8 Persecution on the basis of race, religion, nationality, social group, or political opinion. Refugee Convention, infra note 17. 9 For example, African governments that implement the AU Convention and South American governments that implement the Cartagena Declaration. Moreover, many European countries have a more progressive implementation too, especially those implementing EU Directive 2011/95. We borrow many of these protections and introduce them in the MIMC. 10 These include, but are not limited to: the Charter of the United Nations, the Universal Declaration of Human Rights the Domestic Workers Convention, the Convention on the Rights of the Child, the ILO Minimum Age Convention, the Worst Forms of Child Labor Convention, the Private Employment Agencies Convention; the EU Directive on temporary agency work, the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers; the Sustainable Development Goals, and the Addis Ababa Action Agenda. 11 In establishing new norms, the MIMC also leans on guidelines and recommendations developed by international and regional organizations and institutions as well academic sources. 12 It is important to note that the MIMC meanwhile expands rights protections for migrant workers over and above what current legal instruments prescribe, including multiple visa entries so that temporary labor can retain close ties to families and communities of their origin countries and access to portable pensions so that temporary laborers can benefit from the retirement funds they earn in countries of destination wherever they retire. The MIMC also sets time limits for temporary labor, ensuring that temporary laborers have a path to permanent residency and do not become a permanent class of disadvantaged laborers. 13 Already envisaged in the Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, November 22, 1984, and the Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention), September 10, 1969, 1001 U.N.T.S. 45. 14 As is the case for the existing restatements for contracts, torts, foreign relations, etc., which recapitulate existing case law in a systematic manner. 15 Viewing migration as a common concern for international governance, this approach extends Rawls’ own vision of international relations. 16 For Rawls’ invocation of Rousseau, see John Rawls. 2001. The law of peoples: With, the idea of public reason revisited, 13. 17 Those same laborers, of course, and the businesses that exploit their labor are not good candidates for compliance with mobility restrictions. 18 Needless to say, not all of these potential migrants succeed in obtaining a visa or choose to migrate. 19 Also see William H. McNeill. 1986. Polyethnicity and national unity in world history; Aristide Zolberg. 1981. International migration in political perspective. In Global trends in migration: Theory and research on international population movements, eds. Mary M. Kritz, Charles B. Keely and Silvano M. Tomasi, 3; Myron Wiener. 1995. The global migration crisis: Challenge to states and to human rights. Politicians may also leverage public perceptions of a state’s loss of control over migration for electoral gains that have similar divisive political consequences (and their corresponding noneconomic costs), even if the actual immigration flow is not actually changing county’s demographic make-up to a significant extent. See Identity, migration and the new security agenda in Europe, eds. Waever Ole et al. (1993) (looking especially at chapter 8 by Martin O. Heisler and Zig Layton-Henry on Migration and the links between social and societal security). 20 For an insightful analysis of the importance of labor mobility for refugees, see Katy Long and Sarah Rosengertner. 2016. 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Hämtat från NAFSA. 14 November 2016 . http://www.nafsa.org/About_Us/About_NAFSA/Press/New_NAFSA_Data__International_Students_Contribute_$32_8_Billion_to_the_U_S__Economy/. Rawls J. 1993 . The law of peoples . Critical Inquiry 20 ( 1 ). Rousseau J.-J. 1893 . The principles of political rights, introduction. In The Social Contract , ed. Rousseau J.-J . Swan Sonnenschein & Co . Ruhs M. 2013 . The price of rights: Regulating international labor migration . Princeton, New Jersey, USA : Princeton University Press . Google Scholar CrossRef Search ADS Sengupta S. “Climate change is driving people from home. So why don’t they count as refugees?” New York Times , December 21, 2017 . Tsabutashvili D. “Number of Potential Migrants Worldwide Tops 700 Million,” Gallup News , June 8, 2017 . UN Department of Economic and Social Affairs . 2017 . Trends in International Migration: The 2017 Revision, UNPOP/DB/MIG/Stock/Rev.2017 . New York, USA : UN Department of Economic and Social Affairs . UN General Assembly . 2017 . New York declaration for refugees and migrants . New York, USA : United Nations . UN Secretary-General . 2017 . Making migration work for all. New York, USA : United Nations . UNESCO . 2013 . Towards 2030. Paris, France : Science Report . UNHCR . 2017 . Mid-Year Trends 2016 . Geneva, Switzerland . United Nations . 1951 . United Nations Convention and Protocol Relating to the Status of Refugees, art. IA(2) . Geneva, Switzerland . United Nations . 2015 . Transforming our world: the 2030 Agenda for Sustainable Development. New York, USA : General Assembly Resolution . PubMed PubMed United Nations . 2016 . International Migration Report 2015 . New York, USA . World Bank Group . 2016 . Migration and development: A role for the world bank group . Washington, DC : World Bank Group . World Bank Group . 2017 . Forcibly displaced – toward a develoment approach supporting refugees, the internally displaced, and their hosts . Washington, DC . World Tourism Organization . 2017a . 2016 Annual Report . Madrid, Spain : UN World Tourism Organization. UNWTO . World Travel Tourism Council . 2017b . Global Benchmarking Report 2017 . London, United Kingdom : World Travel Tourism Council . © The Author(s) 2018. Published by Oxford University Press on behalf of Munk School and Rotman School of Management. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Global Summitry Oxford University Press

The Model International Mobility Convention: Finding a Path to a Better International Mobility Regime

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Abstract

Abstract After nearly two years of study and debate convened by the Columbia Global Policy Initiative's International Migration Project, the Model International Mobility Convention (MIMC) represents a consensus among over forty academics and policymakers in the fields of migration, human rights, national security, labor economics, and refugee law. The MIMC provides a holistic and rights-based approach to international mobility that integrates the various regimes that seek to govern people on the move. In addition, it fills key gaps in international law that leave many people unprotected by establishing the minimum rights afforded to all people who cross state borders—whether as visitors, tourists, students, workers, residents, entrepreneurs, forced migrants, refugees, victims of trafficking, people caught in countries in crisis, and family members—and defines their relationships to their communities of destination, origin, and transit (The Model International Mobility Convention. 2018. The Columbia Journal of Transnational Law. JTL Special Issue 56(2)). The Global Picture Mobility is a defining feature of the human experience. The movement by our ancestors 120 thousand years ago across, and then (for some) out of Africa, was but the starting point of a global movement of people that would come to characterize our world. Although remaining at just 3 percent of the global population (IOM n.d.), human movement across borders has for the past two decades increased significantly. Today international migrants—defined by the UN as those outside their national or habitual jurisdiction for one year or more—account for 258 million persons worldwide (UN Department of Economic and Social Affairs 2017),1 up from 173 million in 2000 (United Nations 2016). If counted as a nation, international migrants would be the fifth most populous country, larger than Brazil and just smaller than Indonesia (IOM n.d.). Unfortunately, there is also an increasing number of people who move involuntarily. This includes 40.8 million internally displaced people, but also 22.5 million refugees and almost three million asylum seekers who have been forced to leave their countries of origin. The displaced population has doubled in numbers compared to the last decade, and is now at a level not recorded since World War II (BBC 2016). Most of the movement across borders today happens through legal channels, such as the various labor visa schemes that bring labor migrants to economies all around the world. Each year, four million international students travel to access educational opportunities abroad (UNESCO 2013) and 1.2 billion international visitors travel for leisure, to do business or to meet relatives or friends (World Tourism Organization 2017a, 2017b). Nevertheless, the under-provision of such legal pathways and the lack of global regulation and cooperation that has so far characterized international migration leave many people unprotected, undocumented and often exploited by employers, traffickers or others taking advantage of the vulnerability of migrants en route or in destination countries. Against this backdrop, and due to an increasing concern among some states about a perceived loss of control over their borders, the UN has, for the first time in history, initiated a process to develop a more comprehensive and sustainable system for international migration. The aim is to make international migration more safe, orderly and regular, or “Making Migration Work for All,” as the Secretary-General in his recent report on the process chose to frame it (UN Secretary-General 2017). This process was set in motion by the unanimous adoption of the New York Declaration by the UN General Assembly in September 2016, which mandated the organization with developing two global compacts—or international accords—by 2018, one for migration and one for refugees (UN General Assembly 2017). This endeavor hopefully reflects a growing international consensus that there needs to be a more comprehensive approach at the international level to the good global governance of migration. The process to develop a Global Compact for Safe, Orderly and Regular Migration (Global Compact for Migration) is a fundamentally political one. The effort requires 1922 Member States to find common ground—or the lowest common denominator—during a set of negotiations taking place this spring. These negotiations face deep challenges in a current global political reality characterized by: continuing hazards of the Mediterranean crossing, the election of Donald Trump as President in the United States, the Brexit vote in the United Kingdom, bilateral ethnic cleansing in South Sudan, and the expulsion of the Rohingya from Myanmar (Doyle 2018). Indeed, given the increasing nationalist sentiment and a growth in populist political parties in many parts of the world, it might well have to be considered a good outcome if an interstate process on migration manages to reconfirm existing principles and norms. It is equally clear that the Global Compact for Migration cannot be an end in and of itself, as it will undoubtedly fail to provide sufficient answer to the migration challenges that the international community will be faced with in the coming decades. Rather, the Global Compact for Migration should be seen as forming a milestone on the long road toward creating a full-fledged global regime on human mobility. The Model International Mobility Convention (MIMC), developed and debated over two years by an academic commission sponsored by the Columbia Global Policy Initiative (GPI), picks up the larger challenge where this political process is likely to leave off (at least for now). The MIMC identifies a potential structure for a global legal regime on human mobility.3 The MIMC defines, in legal terms, what a global regime on human mobility should look like. In doing so, it envisages mobility beyond the horizons of governance that the negotiators of both Global Compacts are currently mapping and thus offers a vantage point from which to think critically about that process. The MIMC urges the international community to be proactive with regard to mobility and presents some imporant groundwork in this regard. While the MIMC is developed as an ideal framework for mobility, it is also designed to be a realizable one, embodying what States someday should adopt when comprehensively regulating international mobility. The long-run hope underpinning the MIMC—its moonshot—is that the MIMC will gain approval from international organizations and NGOs and, thereafter, that well-motivated countries will take up the MIMC and use it to formulate a comprehensive multilateral treaty on mobility for international adoption.4 In this article, we comment on some of the central features of the MIMC, which legal gaps it seeks to fill, which rights it seeks to extend, and what concerns it might help address. We next discuss the proposects for the acceptance of the MIMC and what it represents among stakeholders and States with divergent interests and priorities. By doing so, we wish to turn the spotlight to the advocacy work the supporters of the MIMC have in front of them to ensure its success in inspiring a future comprehensive global mobility regime. The Flaws and Gaps in International Legal Frameworks Governing Migrants and Refugees One major flaw in the current global migration regime is that existing international legal instruments governing migration are underdeveloped and undersubscribed. The two major international treaties governing migrants and refugees, the 1990 UN Convention on the Rights of Migrant Workers and Members of their Families (the Migrant Workers Convention or MWC) and the Refugee Convention of 1951 and its 1967 Protocol (the Refugee Convention), have significant gaps and flaws. First, the international legal regime on labor migration remains very weak despite the fact that nearly half the world’s migrants are migrant workers (ILO 1990).5 The Migrant Workers Convention has not been adopted by countries of net-immigration. It has been criticized for simultaneously over-privileging and under-protecting migrants. By extending rights such as access equal to nationals in subsidized housing, higher education and health care, the MWC burdens destination countries with extensive social welfare sectors and indirectly encourages them to under-provide legal pathways for labor migrants. An unintended consequence of this regime appears to be that net-immgrantion countries that extend such benefits to their migrant communities leave some jobs unfilled rather than allow additional migrant workers into their country—limiting job opportunitites for migrants and leaving jobs unfilled for employers (Ruhs 2013). The extensive set of rights afforded to migrant workers by the MWC is thus one of the reasons that it has very few ratifications by countries of net-immigration because as it has not been seen as meeting their interests.6 At the same time, the MWC fails to assure the multiple visas and portable pensions that temporary workers would need to make their employment fair and sustainable. These gaps, in turn, have encouraged irregular migration, making migrants vulnerable to exploitation and abuse (ILO n.d.).7 Second, the Refugee Convention, although a laudable cornerstone treaty underpinning the global refugee regime, does not adequately reflect contemporary circumstances and reasons for flight (United Nations 1951). The nature of conflict has changed in recent decades. Labor migrants and refugees increasingly mix in their attempts to find safety, increase their economic prospects or both (Long 2015) (Angenendt, Kipp, and Amrei, 2017). Those that do not squarely fit in the narrow definition of a refugee spelled out in the Refugee Convention rely solely on a progressive reading of the law by States and asylum officers, something highly subject to change, discretion, and political whim.8 Labor migrants and refugees include those that have been forced to leave their countries because of severe economic deprivation, gang violence, natural disasters or climate change, and whose lives may be equally manifestly threatened. The current refugee regime, moreover, contains an inherent paradox: on the one hand, refugees have a right to nonrefoulement—not to be expelled—once in the territory of another State; but on the other, these refugees have no right to enter a state to make a claim for international protection (United Nations 1951). This contributes to the devastating dynamics on display across the globe today where migrants face extremely dangerous conditions to enter states irregularly on inadequate vessels or through vast deserts with the help of human smugglers to access the opportunity to claim international protection. Finally, another weakenss of the current regime is that once refugees gain protected status the Refugee Convention grants them rights equivalent only to other aliens (United Nations 1951), which may not include rights to employment or access to higher education, unless the country of asylum chooses to do so. However, as the thinking has shifted in recent years toward migration and refugees as a development issue—an approach highlighted in the 2030 Agenda for Sustainable Development (United Nations 2015) and a recent World Bank report (World Bank Group 2017)—it has become widely recognized that refugees should be given access to work and educational opportunities in host countries to become self-reliant and to be able to contribute to their host societies. Nevertheless, today some developing countries that can least afford the cost, including Lebanon, Jordan, Turkey, Pakistan, Iran, Ethiopia, and Kenya, are carrying a disproportionate burden by hosting 85 percent of the world’s forcibly displaced (UNHCR 2017). Clearly, much more substantial global responsibility sharing through adequate funding or resettlement to third countries is required at the international level. Despite the flaws of the international instruments governing some—although far from all—aspects of international migration, governments have in many cases proven to be more protective than these frameworks require. This is especially true for governments guided by national and regional frameworks that are more progressive than global treaties.9 Thus, in addition to reaffirming the existing rights afforded to mobile people in various international, albeit flawed, frameworks (and the corresponding rights and responsibilities of states),10 the MIMC borrows from such national and regional developments to expand basic rights (where warranted) to fill the growing gaps in protection and responsibility that are leaving people vulnerable. In doing so, the MIMC takes the important step of defining and putting into one legal framework issues that are currently under distinct and separate regional or national governance regimes. In doing so, the effort establishes a common international floor of protections applicable to all persons on the move no matter where they are and not just within a few rights-respecting States.11 Creating a Holistic Global Regime on Mobility The unprecedented scope of the MIMC is its single most distinctive feature. Indeed, to develop a holistic approach to human mobility that fills the gaps in international protection, regulation, and cooperation, it was important to identify the particular rights and responsibilities appropriate to a wide range of individuals as they move across borders (Model International Mobility Convention 2017). The resulting 213 articles across eight chapters identify a wide range of migrants—visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, and refugees—and the ladder of increasing rights appropriate to each status. This comprehensive catalog of rights not only creates a framework for the 258 million international migrants, but also for the over four million international students obtaining their education abroad and the 1.2 billion international visitors worldwide. In addition, the MIMC adds a number of novel regulations and protections for areas of human mobility that until now have largely lacked coverage by any existing global regime, including visitors, migrant residents (those who are not employed, retirees, etc.) and temporary migrant workers. By putting these categories of mobile people under one single framework for the first time, the MIMC acknowledges that labor migrants and refugees are but variants of a more generally mobile population, whose movement across borders for any length of time and for any particular reason is part of the larger phenomenon of globalization. Moreover, it contributes to emphazising the fluidity and interchangeability across categories of migrants: a student or a refugee may become a worker; a migrant worker may become a refugee; or a victim of trafficking may become stuck in a country undergoing a crisis. By placing mobility at its core, the MIMC emphasizes the complexity and nonlinearity of the human experience while establishing the particular rights and duties of each kind of mobile person as she or he moves across borders. This represents an important departure from the current global migration regime, which is largely predicated on the binary refugee versus migrant categorization. The MIMC likewise takes an important step away from the Migrant Workers Convention. The MIMIC introduces a category of migrant workers—temporary migrant workers—whose rights and benefits under the MIMC can be subject to a number of clearly delineated permissible modifications for a limited period of time.12 These provisions are designed to bring to bear the potential for a win-win outcome both for, on the one hand, states who are looking for labor migrants to fill shortages in their labor markets, and, on the other, migrants looking for opportunities to work abroad. The underlying logic of the introduction of a new legal definition of a subset of migrant workers is that States will likely be more willing to accept a larger number of labor migrants and provide more legal pathways for short-term labor migration if they can apply a more limited set of rights, thus leading to a net improvement over the current widespread nonapplication of migrant workers’ rights and opportunities to gain employment abroad. With regards to refugees, the MIMC’s most important improvement over the current regime is its expansion of the Refugee Convention’s narrow definition of grounds for protection through the introduction of the category of “forced migrants.” This category is defined by a “serious harm” standard (an external threat to life or arbitrary incarceration) that goes beyond just State-based persecution. It covers people fleeing from life-threatening drought or floods, such as are increasingly caused by climate change (Sengupta 2017) or from civil wars and generalized violence.13 The MIMC moreover provides equivalent rights for refugees and forced migrants and offers rights equivalent to nationals, rather than to aliens, without a waiting period, thereby ensuring access to important rights such as the right to employment and education. Addressing the nonrefoulement versus no right to enter paradox, the MIMC specifies that there is a right to enter if fleeing directly from persecution or threat to life (Model International Mobility Convention 2017). At the Crossroads between Realism and Idealism The Commission’s substantive method in developing this Model Convention was normative. Rather than a restatement of the law,14 our method was closest to what John Rawls refers to as a “Realistic Utopia.” This is a system that requires using what we know about attitudes, preferences, and institutions; then joining “reasonableness and justice with conditions enabling citizens to realize their fundamental interests …” (Rawls 1993).15 It builds on Rousseau’s injunction to legislate for “Men as they are, laws as they might be” (Rousseau 1893).16 In practice, this means reflecting the world as it is and building a movement toward justice that existing, but better motivated, governments could endorse. It is not an objection to the underlying premise of the Model Convention to say our articles do not correspond directly to existing treaty commitments or policy. It is an objection, however, if you believe that governments should not be willing to endorse these articles. Although the scholars and practitioners constituting the Commission had differences of opinion when debating the Convention text, they all agreed on the fundamental normative principles underpinning the project, namely basic human rights, human dignity and the duty to protect refugees. The result is that the MIMC adopts a rights-based approach that seeks to extend to all types of migrants the widest array of entitlements consistent with their status. Nevertheless, throughout the debates and conversations leading up to the MIMC, there has been a tension between the utopian and realist aims outlined. There was also tension between idealists and realists among the Commisison members. This was maybe most evident in the discussions of Chapter V on forced migrants and refugees, which saw many revisions before the one included in the final MIMC was eventually agreed upon. Commission members were largely split between two considerations: on the one hand, the need to update the current refugee regime based around the Refugee Convention to make it more reflective of current dynamics and protection issues; and on the other hand, there was concern among the Commmission members over the unwillingness to upset the guarantors and implementors of that regime. Some members were legitimately’ concerned that any interference with the Refugee Convention will lead to an overall weaker refugee regime. States, the argument went, would, if asked today, not be likely to widen the scope of protection as the MIMC in fact does. After weighing these considerations against each other during extended discussions, the Commission agreed, through majority decision, that the former consideration—the concern for signing a Refugee Convention again—would define the MIMC. Chapter V merged the two categories of refugees and forced migrants, thereby recasting refugees as but a subset of the broader category of forced migrants. This, in the majority’s mind, reflects a more coherent picture of what a future comprehensive and adequate international protection regime should look like. The Path to Acceptance among Mobility Stakeholders The MIMC undoubtedly strengthens the human rights claims of all those crossing borders and the biggest winners are, naturally, those who are mobile. Refugees get adequate protection to save their lives through a right to enter other states (not just protection against refoulement upon entrance). Unskilled migrants get increased access to job opportunitites and thereby a chance to multiply their incomes by a factor of ten. And skilled migrants find a ready market for their skills. Acceptance by mobile persons is thus reliable.17 But how to ensure acceptance by States given this significant expansion of rights under MIMIC? Needless to say, no one expects xenophobic leaders such as Donald Trump, Marine Le Pen, or Nigel Farage to sign onto the MIMC. Rather, the aim is to target centrist leaders of the future and envision these politicians with a more open attitude to immigration and a cosmopolitan bent to support this Convention. It might be possible to see more moderate politicans of today—say Canada’s Justin Trudeau, Germany’s Angela Merkel or France’s Emmanuel Macron—signing such a Convention, as MIMIC. One can start to reflect on this possibility by asking why the Migrant Workers Convention failed to attract any signatures from net immigration states (beyond negotiating in bad faith, which some States might well have done). Given that the track record in achieving international cooperation on labor migration, why would those same states choose to sign the MIMC? First, a fundamental obstacle in establishing an international regime governing labor migration is that foreign labor, especially low-skilled labor, is in abundant supply. According to a recent Gallup study, up to 700 million people would migrate internationally if given the opportunity to do so (Tsabutashvili 2017).18 Destination States have a large international labor pool to pull from during economic upturns, either through bilateral agreements or simply by opening labor markets to migrants, setting their own unilateral terms. There is little incentive for these States to make international commitments to keep labor markets open during economic downturns (Koslowski 2011).19 The MIMC attempts to solve this unfortunate dynamic by including provisions on labor migration that expand rights and are economically optimal for states. For example, portable pensions can increase labor market flexibility and make it more likely that temporary migrants will resist pressures to remain in the destination country. Similarly, multiple entry visas and other circulation-friendly visa policies increase the likelihood that people will go home, safe in the knowledge they can come back. The MIMC also includes a suggestion for a specific cooperation mechanism for the facilitation of an efficient labor mobility regime through a Mobility Visa Clearing House (Model International Mobility Convention 2017). In short, the MIMC respects, more so than does the Migrant Workers’ Convention, the interests and constraints of destination countries (Hansen 2018). Countries of origin, meanwhile, although losing some skilled labor, gain USD $432 billion per year in remittances (World Bank Group 2016), three times more than total foreign aid flows (UN Secretary-General 2017). With regards to refugees, the proposals to expand the scope and increase the rights offered to those in need of international protection are coupled with the creation of mechanisms that improve the prospects for responsibility sharing among states. This is done through the establishment of a Responsibility Sharing procedure (modeled after the Paris Climate Agreement) to help countries pledge and implement commitments to extend funding and resettlement opportunities for refugees and forced migrants.20 The Responsibility Sharing scheme is connected to the Visa Mobility Clearing House for migrant workers, as forced migrants and refugees are provided resettlement opportunities by gaining priority access to a quota of labor visas under the latter (without losing their protected status (Model International Mobility Convention 2017). Finally, the MIMC introduces a consideration of capacity to provide assistance to refugees and forced mgirants, borrowing from the EU asylum proposal (European Commission 2015).21 Through these provisions, the Model Convention curtails arbitrary distribution of duties of asylum seekers based predominantly on proximity, which currently puts neighboring countries under disproportionate migration and refugee pressures. The MIMC’s balancing of state interests and migrant rights create important incentives for states to accept it, and the introduction of cooperation mechanisms serve to uphold these incentive structures. In addition, there are reciprocal benefits exclusive to states that join the MIMC. These benefits are not necessarily directly reciprocal: unlike the international trade regime, the acceptance of a treaty-established regulatory framework on migration cannot be ensured by the threat of retaliation; workers in developed countries do not benefit much from gaining access to labor markets in migration origin states of the developing world. Finally, States are not likely to be moved by: “if we don’t take their refugees, they won’t take ours.” Nevertheless, the MIMC, if read in its entirety, does include elements that together create diffuse reciprocity and which can prove to be attractive to states if they, as is the intention, adopt it as a package (Keohane 1986). This diffuse reciprocity is based on the issue linkages that the MIMC creates by depicting mobility as a spectrum. If it is a spectrum the approach steps away from the siloed approach of refugees versus migrant permeating the current legal regime. Such issue linkages increase the incentives of all states to cooperate. For example, countries who might not be interested in joining an international regime to facilitate labor migration are nevertheless likely to be interested in joining a global regime that facilitates the arrival of foreigners who come to spend money on lodging, meals, and entertainment. In 2016 alone, international tourism generated USD $4 trillion, 5 percent of global GDP, adding 145 million jobs worldwide (World Travel Tourism Council 2017).22 Similarly, foreign students spent USD $32 billion in the U.S. alone in 2015 and generated 400,000 jobs (NAFSA 2016). The supply of international tourists and students cannot be taken for granted and can shift away from states that erect barriers to international travel toward those states that do not. By placing the rules regulating the cross-border movement and rights of visitors, tourists and students together with those regulating migrant workers, investors and migrant residents, refugees, forced migrants and asylum seekers, the MIMC links cooperation on international travel to cooperation on migration and refugees and on development and border security. For example, by signing onto the MIMC, countries such as the U.S. and those in the EU benefit from universal machine readable and biometric passports to improve security at the border (Model International Mobility Convention 2017). In other words, destination countries overall, indirectly and collectively, gain a more regularized, orderly—and thus profitable—regime for the movement of people. By focusing broadly on mobility—and the larger terrain of overlapping state interests, from travel, tourism and education, to labor and humanitarian assistance, that this entails, the MIMC creates the groundwork for a “richer network of interlocking, interdependent, and mutually beneficial” forms of multilateral coordination and cooperation (Koslowski 2018). Policymakers and diplomats negotiating the Global Compacts could no doubt benefit from using this approach in the coming months. Conclusion The MIMC identifies a better future regime for migration and mobility. It addresses and fills the dangerous gaps in existing international law. It displays coherence through a comprehensive set of potential rules, using language that is clear, and action-, rights- and duties-oriented. By demonstrating what a better international mobility regime could look like, we hope to take away any undue concerns, assure uneasy publics, and inspire action. While a stronger emphasis on issue linkaging and diffuse reciprocity will certainly help to increase the likelihood that States will some day in a future not too far away accept the MIMC, acceptance will also call upon reserves of ethical solidarity “enforced” by common decency and ethical responsibility (plus in the background naming and shaming). States must recognize the huge impact mobility has on economic growth, development and security for all countries and acknowledge the need to establish a system that recognizes the human dignity of all. The Global Compact processes and the general acknowledgement of their close relationship to 2030 Agenda is a promising sign in this regard. While national political currents are less encouraging and these do not seem to be auspicious times for creative, multilateral humanitarianism, we are convinced that it is nevertheless better to do the analytical work now, when times are inauspicious, so that the hard work of the diplomats will be that much easier when the sun of cooperation shines again and the international community is ready to seize the moment to make a comprehensive multilateral treaty for migrants and refugees. The authors thank Randall Hansen, Rey Koslowski, and Sarah Rosengaertner for their suggestions. This article draws on and builds on Michael Doyle, “The Model International Mobility Convention”, The Columbia Journal of Transnational Law (2018). Footnotes 1 The UN definition of a migrant measured in this data is someone resident in a country not of his or her birth for more than one year. 2 The U.S. officially ended its participation in the GCM process in December last year. See: https://www.state.gov/secretary/remarks/2017/12/276190.htm 3 The International Mobility Commission is composed of academic and policy experts in the fields of migration, human rights, national security, labor economics, and refugee law. For a full list of Commission members, see http://globalpolicy.columbia.edu/mobility-convention. The forty-plus Commission members went through a single-text process of negotiation prepared by a Secretariat team at the Columbia GPI. Then, over a period of two years, the Commission met in person and by video in various configurations to review, edit and rewrite the chapters, producing the final text of the MIMC in April 2017. 4 The successful attempt by civil society to generate the Canadian initiative to begin the Mine Ban Treaty process in the 1990s culminating in its adoption provides an illustrative example of what we eventually hope to achieve. 5 For statistical estimates on the proportion of labor migrant workers, see International Labour Organization. 2015. ILO global estimates on migrant workers, xi. 6 Only Chile and Argentina are countries of net-immigration (2007–2015) among the thirty-eight signatories. 7 “Evidence suggests that poorly governed labour migration can increase the incidence of irregular migration and raise the risk of exploitation for migrant workers and governance challenges for countries of origin, transit and destination.” For borders, see Ian Traynor, “Is the Schengen Dream of Europe Without Borders Becoming a Thing of the Past?,” The Guardian, January 5, 2016, https://www.theguardian.com/world/2016/jan/05/is-the-schengen-dream-of-europe-without-borders-becoming-a-thing-of-the-past; https://perma.cc/9T3N-L7TZ; Noah Buyon, “Hungary to Build (Another) Border Fence,” Foreign Policy, February 24, 2017, http://foreignpolicy.com/2017/02/24/hungary-to-build-another-border-fence/;https://perma.cc/BR3P-6VPH. 8 Persecution on the basis of race, religion, nationality, social group, or political opinion. Refugee Convention, infra note 17. 9 For example, African governments that implement the AU Convention and South American governments that implement the Cartagena Declaration. Moreover, many European countries have a more progressive implementation too, especially those implementing EU Directive 2011/95. We borrow many of these protections and introduce them in the MIMC. 10 These include, but are not limited to: the Charter of the United Nations, the Universal Declaration of Human Rights the Domestic Workers Convention, the Convention on the Rights of the Child, the ILO Minimum Age Convention, the Worst Forms of Child Labor Convention, the Private Employment Agencies Convention; the EU Directive on temporary agency work, the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers; the Sustainable Development Goals, and the Addis Ababa Action Agenda. 11 In establishing new norms, the MIMC also leans on guidelines and recommendations developed by international and regional organizations and institutions as well academic sources. 12 It is important to note that the MIMC meanwhile expands rights protections for migrant workers over and above what current legal instruments prescribe, including multiple visa entries so that temporary labor can retain close ties to families and communities of their origin countries and access to portable pensions so that temporary laborers can benefit from the retirement funds they earn in countries of destination wherever they retire. The MIMC also sets time limits for temporary labor, ensuring that temporary laborers have a path to permanent residency and do not become a permanent class of disadvantaged laborers. 13 Already envisaged in the Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, November 22, 1984, and the Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention), September 10, 1969, 1001 U.N.T.S. 45. 14 As is the case for the existing restatements for contracts, torts, foreign relations, etc., which recapitulate existing case law in a systematic manner. 15 Viewing migration as a common concern for international governance, this approach extends Rawls’ own vision of international relations. 16 For Rawls’ invocation of Rousseau, see John Rawls. 2001. The law of peoples: With, the idea of public reason revisited, 13. 17 Those same laborers, of course, and the businesses that exploit their labor are not good candidates for compliance with mobility restrictions. 18 Needless to say, not all of these potential migrants succeed in obtaining a visa or choose to migrate. 19 Also see William H. McNeill. 1986. Polyethnicity and national unity in world history; Aristide Zolberg. 1981. International migration in political perspective. In Global trends in migration: Theory and research on international population movements, eds. Mary M. Kritz, Charles B. Keely and Silvano M. Tomasi, 3; Myron Wiener. 1995. The global migration crisis: Challenge to states and to human rights. Politicians may also leverage public perceptions of a state’s loss of control over migration for electoral gains that have similar divisive political consequences (and their corresponding noneconomic costs), even if the actual immigration flow is not actually changing county’s demographic make-up to a significant extent. See Identity, migration and the new security agenda in Europe, eds. Waever Ole et al. (1993) (looking especially at chapter 8 by Martin O. Heisler and Zig Layton-Henry on Migration and the links between social and societal security). 20 For an insightful analysis of the importance of labor mobility for refugees, see Katy Long and Sarah Rosengertner. 2016. 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European Commission . “Proposal for a COUNCIL DECISION establishing provisional measures in the area of international protection for the benefit of Italy, Greece and Hungary,” September 9, 2015 . Hansen R. 2018 . Labor migration and international mobility: Normative principles, political constraints . The Columbia Journal of Transnational Law 56 ( 2 ): 289 – 295 . ILO . 1990 . International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. ILO . ( n.d. ). The Global Compact for Safe, Orderly and Regular Migration. Hämtat från. http://www.ilo.org/global/topics/labour-migration/migration/lang–en/index.htm; https://perma.cc/GCS4-TDNW. IOM . ( n.d. ). Migration in the world. Hämtat från. http://www.iom.sk/en/about-migration/migration-in-the-world. IOM . ( n.d. ). Migration in the world. (I. O. Migration, Producent) Hämtat från. http://www.iom.sk/en/about-migration/migration-in-the-world. Keohane R. 1986 . Reciprocity in international relations . International Organization 40 ( 1 ): 1 – 27 . Google Scholar CrossRef Search ADS Koslowski R. 2011 . Conclusions: Prospects for cooperation, regime formation, and future research. In Global mobility regimes , ed. Koslowski R. , ss. 260 – 61 . Palgrave Macmillan . Google Scholar CrossRef Search ADS Koslowski R. 2018 . Think mobility instead of migration: Leveraging visitors, tourists and students for more international cooperation . The Columbia Journal of Transnational Law 56 ( 2 ): 263 – 273 . Long K. 2015 . From refugee to migrant? Labor mobility’s protection potential . Washington, DC : Migration Policy Institute . Model International Mobility Convention . 2017 . International Convention on the Rights and Duties of All Persons Moving from One State to Another and of the States They Leave. Transit or Enter. NAFSA . New NAFSA Data: International Students Contribute $32.8 Billion to the U.S. Economy. Hämtat från NAFSA. 14 November 2016 . http://www.nafsa.org/About_Us/About_NAFSA/Press/New_NAFSA_Data__International_Students_Contribute_$32_8_Billion_to_the_U_S__Economy/. Rawls J. 1993 . The law of peoples . Critical Inquiry 20 ( 1 ). Rousseau J.-J. 1893 . The principles of political rights, introduction. In The Social Contract , ed. Rousseau J.-J . Swan Sonnenschein & Co . Ruhs M. 2013 . The price of rights: Regulating international labor migration . Princeton, New Jersey, USA : Princeton University Press . Google Scholar CrossRef Search ADS Sengupta S. “Climate change is driving people from home. So why don’t they count as refugees?” New York Times , December 21, 2017 . Tsabutashvili D. “Number of Potential Migrants Worldwide Tops 700 Million,” Gallup News , June 8, 2017 . UN Department of Economic and Social Affairs . 2017 . Trends in International Migration: The 2017 Revision, UNPOP/DB/MIG/Stock/Rev.2017 . New York, USA : UN Department of Economic and Social Affairs . 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World Tourism Organization . 2017a . 2016 Annual Report . Madrid, Spain : UN World Tourism Organization. UNWTO . World Travel Tourism Council . 2017b . Global Benchmarking Report 2017 . London, United Kingdom : World Travel Tourism Council . © The Author(s) 2018. Published by Oxford University Press on behalf of Munk School and Rotman School of Management. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Global SummitryOxford University Press

Published: May 9, 2018

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