On December 8, 2018, Canada stated that it would adopt the UN Global Compact for Safe Migration. What followed was an unsurprising and reactionary set of protests across the country. People protesting did so in order to try and oppose the idea of more people – who they don’t like – coming to Canada to stay. The reality is that the Compact does not instill any formal obligations on Canada and does not go nearly far enough to respond to the migration crisis.
In this post, I will try and explain what the legal meaning of this Compact is for Canada and demystify some of the issues with the Compact that opponents are raising. These include the idea that the Compact will compel Canada to let in more migrants, that Canadian media coverage will be forced to be pro-migration, and the issues raised with international cooperation among States to support more migration. I will also suggest that far more is needed to support those who are moving due to adverse conditions in their countries of origin. I will not be discussing economic migration in any significant detail because I think that will better be placed in its own piece.
The (GCSM) was arrived at on July 18, 2018. The Compact is nothing more than a pact to cooperate in order to respond to an unprecedented global crisis of displacement, where over 68 million people have been forcibly displaced and over 25 million have been the victims of persecution. It simultaneously sets out to build cooperation to better facilitate improved economic migration and cooperation to alleviate security concerns people attempt to make journeys to new homes. The issues that the Compact proposes to address include:
- the increasing number of people displaced due to natural disasters and climate change-induced insecurity, including due to flooding, famine, droughts, shoreline erosion, loss of land to sea level rises, etc;
- the increasing number of people forced to flee due to persecution due to violence and the threat of violence in a world of increasing insecurity
- a world of mobile people, where economic migration is both necessary and unstoppable
A large part of the Compact calls for States to better cooperate to develop early warning systems for disasters and to do better disaster mitigation. This is all to prevent the need for people to move from their homes. Another objective is to improve “skill-matching”, so that businesses in different part of the world can meet their employment needs with migrant labour, whether permanent or temporary. Big businesses are no doubt a major driver of this aspect of the Compact. A further objective of the Compact is to ensure global security cooperation, to prevent the movement of those without proper identification. Some of these people without proper identification may be the most precarious of all, obtaining any identification possible to flee insecure conditions. Canada’s Immigration and Refugee Protection Act and Regulations already allows leeway to people with false identification if they procured it in the urgency of trying to flee persecution.
The Compact does not actually change any international or domestic laws. It does not improve or even alter legal entitlements or rights to claim refuge or immigrate to Canada. The Compact does not even come close to a so-called free-for-all for people around the world to move. It does nothing to open borders. It falls short of giving actual responsibility to signatory states to take in more migrants.
The Legal Authority of the Compact?
In the first week of December, there was a barrage of media about the Compact forcing Canada to let in more migrants, covering Conservative leader Andrew Scheer’s pronouncement that the Compact was legally binding and would “threaten Canadian Sovereignty“. There were responses to this inaccurate statement.
The Compact is not legally binding, but a statement by all signatory States to do their part for safe migration. It is a follow up to the 2016 New York Declaration for Refugees and Migrants, which is also not legally binding. Specifically, the Compact states (point 7 of the preamble):
This Global Compact presents a non-legally binding, cooperative framework that builds on the commitments agreed upon by Member States in the New York Declaration for Refugees and Migrants. It fosters international cooperation among all relevant actors on migration, acknowledging that no State can address migration alone, and upholds the sovereignty of States and their obligations under international law.
Since it is not legally binding, no state can be compelled to do anything that is stated in the Compact. There is no penalty for disregarding any or all of the objectives in the Compact. For good measure, the Compact is carefully worded so as not to avoid the language of legal obligations, but focuses instead on calls to action. It is an aspirational document.
Still, the Compact is not legally meaningless. It will give direction to existing immigration laws and regulations. The basis for this reasoning has been with us for a number of years already. Even without domestic legislation to adopt international treaties, conventions, compacts or other international instruments, Canada is expected to follow the values and principles of signed international commitments when there are no legal barriers to doing so. This was stated by former Supreme Court of Canada justice former Justice L’Heureux Dubé in the 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship & Immigration).
Now that the Compact is in place, and signed by Canada, it provides some better basis for arguing that environmentally displaced persons (aka climate refugees, environmental refugees, etc) should be able to stay in Canada on humanitarian and compassionate grounds. The argument would be that, by way of humanitarian and compassionate grounds, it would be wrong to send someone back to a country to face starvation or death or bodily harm through environmental conditions. But this is not the same thing as arguing that persons are environmental refugees and that Canada has an obligation to provide refuge to them. Refugee claimants can also raise a humanitarian and compassionate claim if their refugee claim fails.
Migrants controlling the media?
The Compact states the following under objective 17:
We commit to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law. We further commit to promote an open and evidence-based public discourse on migration and migrants in partnership with all parts of society, that generates a more realistic, humane and constructive perception in this regard. We also commit to protect freedom of expression in accordance with international law, recognizing that an open and free debate contributes to a comprehensive understanding of all aspects of migration.
This one objective has raised a very loud false alarm. As reported by Global News, Andrew Scheer stated that the Compact, “attempts to influence how our free and independent media report on immigration issues.”
Again, the compact is not legally binding. No media can be forced to report anything. Furthermore, the protection of freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms (Charter) prevents Canadian laws from forcing media to be pro-migration. The Compact is merely trying to instill better international cooperation to stop bigoted reporting about migrants and refugees, whereby refugees and migrants are vilified in the cause of jingoistic patriotic fervour for some purist ideal of citizenry, such as white nationalism. Canada agreeing to cooperate, “to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law,” is something Canada already has to do in order to be in conformity with its international commitments, human rights laws, the Charter, and all other laws that prohibit discrimination.
Following up on the Compact can finally lead to the clear recognition that grounds of discrimination include immigration status. There has been some movement in this direction at the Human Rights Tribunal or Ontario. A recent decision, provides a precedent for preventing employers from requiring proof of citizenship or permanent resident status for those who are legally allowed to work in Canada. However, this is very little protection. Legislation is needed to ensure protection against discrimination due to immigration status.
There were a number of protests against the Compact (examples: 1, 2, 3, 4; general coverage: 5), shouting slogans such as “Canadians first” and calling for Canada to withdraw from the Compact. It is likely there will be many more, especially in the lead up to the next federal election.
The interesting thing about these protests is that they are in response to exactly nothing. No laws were changed by Canada saying it would adopt the global Compact. All it does is set out a future direction that Canada should be expected to take in the near future.
I do not think that those who organized the protests, including the far-right, anti-Muslim and anti-migrant group La Meute, actually think that the Compact is legally binding. The Compact is clear enough that an average child could figure that part out. These groups are merely opportunists, who are trying to stir up a misinformation laced, anti-immigration fervour to pressure politicians to eventually change domestic immigration laws to build legal barriers at the border.
Binding international law to better protect environmental migrants is required
Lack of legal recognition and protection of environmental migrants is a gaping hole in international and domestic law. A refugee does not include a person fleeing from environmental destruction or displacement. These circumstances include directly human-caused events, such as industrial developments and disasters, or (climate change-exacerbated) natural events, such as typhoons. The definition of refugee only includes those fleeing from human-caused persecution. The 1951 Refugee Convention and 1967 protocol were designed only to respond to those who were fleeing from persecution of the Second World War and international and internal conflict that followed it.
This is out of touch with our lived reality. Most of those who are displaced around the world are environmentally displaced. According to a report by the Internal Displacement Monitoring Centre, the total number of new displacements in 2017 was approximately 31 million people. Approximately 19 million were environmentally displaced, with 12 million displaced due to violence and conflict.
Canada needs to do its part to push for binding international law to recognize environmental refugees and for obligations on States, including itself, to take in environmental refugees. Domestic legislation in Canada should be developed simultaneously.