New York declaration for refugees and migrants. a new world pact to a safe, orderly and regulated migration ? a moral and humanitarian challenge

Author:Phd. Claudia Elena Marinica
Pages:72-78
SUMMARY

The issue of migrants and refugees is one of the main topics of interest both in terms of legislation adopted in this area and the need for alignment of these regulations at national and international level, and in terms of guaranteeing human rights of these categories of persons that they should avail themselves of. In this context, the adoption of the Declaration in New York relating to Refugees and Migrants, on the 19th of September 2016, which also includes a startup World Pact in order to ensure a safe, orderly and regulated migration following the U.N. Resolution A/RES/71/6 April 2017 2802 regarding the arrangements for intergovernmental negotiation of Global Compact for a safe, orderly and regulated migration; it represents much more than a moral challenge and through international humanitarian cooperation constitutes a step towards the harmonization of the regulatory framework in this field. The observance of the human rights of migrants implies respect for their dignity as individuals, but also creates conditions for economic and social development, respect for values such as responsibility, solidarity, humanity and human diversity and, last but not least, the promoting and guaranteeing human migration in a balanced way.

 
CONTENT
72 CLAUDIA ELENA MARINICĂ
SECTION II: HUMAN RIGHTS IN THE NEW ERA
NEW YORK DECLARATION FOR REFUGEES AND
MIGRANTS. A NEW WORLD PACT TO A SAFE, ORDERLY
AND REGULATED MIGRATION – A MORAL AND
HUMANITARIAN CHALLENGE
Phd. Claudia Elena MARINIC1
ABSTRACT
The issue of migrants and refugees is one of the main topics of interest both in terms of
legislation adopted in this area and the need for alignment of these regulations at national and
international level, and in terms of guaranteeing human rights of these categories of persons that
they should avail themselves of. In this context, the adoption of the Declaration in New York relating
to Refugees and Migrants, on the 19th of September 2016, which also includes a startup World Pact
in order to ensure a safe, orderly and regulated migration following the U.N. Resolution A/RES/71/6
April 2017 2802 regarding the arrangements for intergovernmental negotiation of Global Compact
for a safe, orderly and regulated migration; it represents much more than a moral challenge and
through international humanitarian cooperation constitutes a step towards the harmonization of the
regulatory framework in this field. The observance of the human rights of migrants implies respect
for their dignity as individuals, but also creates conditions for economic and social development,
respect for values such as responsibility, solidarity, humanity and human diversity and, last but not
least, the promoting and guaranteeing human migration in a balanced way.
Keywords: migrants, refugees, human dignity, mobility, pact.
Migration and refugees issues became a major topic in recent years and, as
expected, was given due attention by everyone, at national, regional and
international level. The present reality proves that migrants and refugees are often
among the most vulnerable people in society, and the racism, xenophobia and
intolerance specific of many communities determine most of the time, the emergence
of a phenomenon such as social isolation and the risk for them to be subject to
1 Phd, Faculty of Public Administration, National University of Political and Administrative Studies,
Romania.
2 http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/280.
Law Review vol. III, Special issue 2017, pp. 72-78
New York declaration concerning refugees and migrants 73
discrimination, exploitation and abuse. Regarding the issue of refugees, „a number
of international regulations were enacted during the international reunions and
conferences. Facing the increasing immigrants waves, the Western countries were
forced to adopt new policies on the status of the foreigners, defined by reducing
the number of refugee assistance programs, which did not allow a clear distinction
between them and the migrants3.
Managing this phenomenon emphasizes the need to improve the global approach
to migration, the recourse to legal migration, border management and effectiveness
and a fair distribution of asylum seekers with respect to the fundamental rights of
migrants. The complexity of the phenomenon of migration involves a complex
response grounded both in terms of the causes of the phenomenon and avoiding the
negative effects of this phenomenon in addition observing the rights of these people.
In the context, including at European Union level, it is considered that there is
a necessity to remind regularly to the Member States the balanced implementation
of the partnerships for mobility, including by it the emphasis on actions related to
legal migration, human rights and the protection of refugees4, taking into account
that the current crisis of migration and refugees, the most serious so far (in 2015
and 2016), has revealed on the one hand, the deficiencies of this legislation and, on
the other hand, deficiencies of regulations so far in migration policy, on September
the 19th, 2016, during the United Nations General Assembly at New York, that
addressed issues related to migration and refugees resolutions - the New York
Declaration concerning Refugees and Migrants.
Thus, a total of 193 Member States of the United Nations have recognized the
need for an integrated approach to mobility and facilitation of reinforced cooperation
at global level through the establishment of mechanisms that would enable and
ensure the protection of migrant populations, taking into account the different
national realities, the capacity and the level of development of each state and in
accordance with national policies and priorities. The „New York Declaration”
reinforces the importance of international protection, but it opens the way for the
adoption of new agreements in 2018, such as global agreement on refugees and global
agreement for ensuring safety, order and legal regulation in the field of migration.
Through the text of the Declaration, the Member States express their deep
solidarity with those forced to take refuge, reaffirms its own obligations to complete
observance of the human rights of refugees and migrants, they are committed to
support countries affected by large numbers of refugees and migrants and they are
committed to work on the adoption of the agreement on refugees and a global
3 Mdlina Cocoşatu, Analyzing the cases of exclusion from refugee protection, Bulletin of the
'Carol I' National Defence University /Oct-Dec2012, Issue 4, p. 212-217.
4 Special report carried out by the European Court of Auditors concerning the expenditure
incurred by the EU until 2014, in its eastern neighbourhood countries and southern Mediterranean
foreign policy with regard to migration, 2016, p. 19.
74 CLAUDIA ELENA MARINICĂ
agreement for ensuring safety, order and the legal regulation in the field of
migration5. The Declaration states that the challenge faced by the world's states is
above all a moral and humanitarian one.
The New York Declaration has been characterized as „historical, but it has also
been criticised on the grounds that it has no clear goals and concrete
commitments. The New York Declaration is the result of extensive negotiations,
the harmonisation of such different positions being a laborious process. This
document – unimaginable a few years ago – is absolutely necessary in the current
global context. One of its most important elements are the recognition of the fact
that the management of migration fluxes represents a shared responsibility. The
international community realizes the complexity and the seriousness of the situation,
and the solution can only be the identification of multilateral mechanisms, in which
an essential role belongs to the United Nations6”. Also, „particular attention is paid
to the protection of women, girls and children, ensuring education for their
children, ending their detention until determining their status, preventing sexual
violence, ensuring the participation of migrants and refugees in identifying
solutions and measures to combat xenophobia7”.
A novelty is the signing of the agreement by which the International Labour
Organisation became officially an organization associated with the United Nations
system, by the consolidation of the global comprehensive approach to migration8.
The Declaration, reiterates the idea that „all human beings are born free and
equal in dignity and rights, that everyone has the right to be recognized everywhere
as a person that must submit to the law” and „discrimination of any kind based on
race, colour, sex, language, religion, political views or other national or social
origin, property, birth or other status” is prohibited. However there are still racist
and xenophobic attitudes addressed to refugees and migrants, which is why this
document condemns firmly acts „and manifestations of racism, racial discrimination,
xenophobia and associated intolerance, which are often stereotypes applied to
them, in particular on the basis of religion or beliefs. Diversity enriches every
society and contributes to social cohesion”.
In the annex II of the Declaration from New York9 it is provided the initialization
of a World Pact for a safe, orderly and regulatory migration, with the goal of launching
5 http://www.unhcr.org/ro/homepage/guverne-si-parteneri/guverne-si-partenericonferinte-
si-intalniri/declaratia-de-la-new-york-privind-refugiatii-si-migrantii.
6 See Ioan Jinga in http://www.euractiv.ro/we-develop/ion-jinga-ambasador-la-onu-sa-ne-
imaginam-ca-intr-o-zi-ne-am-putea-afla-in-situatia-refugiatilor-5649.
7 Ibid.
8 See the Report on the mission of European Parliament following the ad hoc Delegation's
participation at the „high-level meeting of the General Assembly concerning refugees and migrants
U.N.”, New York, USA, from 07.02.2017, p. 6.
9 U.N. Resolution 71/1 of 19 September 2016 concerning New York Declaration concerning Refugees
and Migrants http://www.un.org/en/development/desa/population/migration/generalassembly/docs/
globalcompact/A_RES_71_1.pdfù.
New York declaration concerning refugees and migrants 75
a process of intergovernmental negotiations to establish a number of principles,
commitments and agreements between the Member States with regard to
international migration in all its forms. It will deal with all aspects of international
migration, including the humanitarian ones, as well as issues related to human
development and human rights and other aspects of migration. The commitment
of Member States to cooperate to ensure that migrations are safe, regular and
ordered, ensures a compliance at the same time not only with the human rights of
migrants, but also with their dignity as individuals.
In order for the idea of this Pact to become achievable, there were devised
various items that could be part of the Pact, such as addressing the views on
migration and its effects, possible arrangements to facilitate orderly migration
and international cooperation (a better management of it through the effective
protection of the human rights of migrants and combating trafficking of human
beings), the economic impact on both countries (country of origin and the host
country) policies inclusion and protection of the right to work. At the same time,
the responsibility and obligations of the migrants in host countries and the
development and promotion of anti-discrimination policies and tolerance in the
host States represents a challenging concrete aspect to face and develop, which
constitutes the gist of this Pact.
The Annex establishes the necessary guidelines for achieving this global
agreement, so that the objective be achieved through intergovernmental negotiations
during 2017 and 2018.
In the before mentioned document is recognized „the important contribution
of migrants and migration to development in countries of origin, transit and
destination, the interdependence between migration and development” as well as
the "positive contribution of migrants to the sustainability and inclusiveness of
international migration", that is „multidimensional and of a major importance for
developing countries of origin, transit, destination, requiring consistent and
comprehensive answers." Only that way it will be possible to provide a "reliable,
orderly and regulated migration involving total observance for the human rights
and humane treatment of migrants, regardless of their migration status" and to
ensure "respect for the dignity of migrants and protection of their rights, including
the principle of non-discrimination under international law”.
Prior to this Pact, the Resolution A/RES/71/280 of 6 April 2017 on arrangements for
intergovernmental negotiation of Global Compact for a safe, orderly and regulated
migration was adopted; the adoption Pact will be held at the United Nations
Headquarters in New York in the fall of 2018, before commencing the opening
debate of the seventeenth session of the General Assembly, as well as the necessary
way to achieve it. The United Nations’ Resolution adopted on the 6th of April 2017
also mentions various cooperation agencies of U.N., as well as other international
organizations and the involvement of civil society in the preparation of the Pact.
76 CLAUDIA ELENA MARINICĂ
Preparing the Pact will involve three stages: stage I or the stage of consultations,
stage II or the stage of the results and, at last, stage III or the stage of intergovernmental
negotiations.
Phase I or the consultation stage is from April to November 2017; during this
periode it will address both the issue of migrants ' rights, social inclusion and the
forms of irregular and regular migration, discrimination, as well as international
cooperation and migration policy. At the same time, contributions of diaspora and
migrants will be analysed in order for them to contribute to sustainable development
and to identify solutions to the triggering factors of migration and sustainable
development. Last but not least, will be the subject of consultations, among others,
trafficking of human beings and migrant smuggling.
Summaries and recommendations resulting from the consultation of this first
phase will constitute prerequisites for the discussions of the second stage, the
results phase which will take place between November 2017 and January 2018, in
Mexico. Thus, they will analyze the contributions provided by the Member States
concerning the facilitation of migration into safe, legal and orderly manner and
possible means of implementation. This phase will conclude with a preliminary
draft of the Pact and, on behalf of the General Secretary and of the International
Organization for Migration, a report with data, issues, and opportunities that are
based on the contributions made and they will provide recommendations for
the Member States before the start of the final phase.
Stage III, the intergovernmental negotiations, will last from February until July
2018 and will start with the submission by the Member States of the preliminary
draft of the Pact in February 2018.
Finally, in the fall of 2018, an Intergovernmental Conference will be held at the
headquarters of the United Nations in order to adopt a global Pact for a safe, legal
and orderly migration derived from the New York Declaration of 19 September
2016 for refugees and migrants.
In order to ensure a safe, orderly and legal migration, it is necessary to promote
regularity as a phenomenon determined by international mobility, facilitating
access to legal norms for the effective exercise of rights and adequate information
regarding administrative procedures, rules and updating of the visa system in
order to examine the various situations of the international mobility of people, ensure
the protection of the rights of all migrants without discrimination (in particular,
consideration should be given to the situation of women, children and adolescents)
and their integration through access to the labour market, to education and public
health services, to the fight against xenophobia, racism and discrimination, to
reinforce international cooperation with the states of origin, transit and destination
in order to help migrants etc.
States must develop a more effective management of migration, based on the
protection and promotion of human rights, but also on the strengthening of the
institutional framework through regulation and the creation of new tools aimed at
New York declaration concerning refugees and migrants 77
facilitating access to the rights of the migrant population, due to compliance with the
principles that govern the migration policy (equality of treatment in the exercise of
rights between nationals and aliens, non-discrimination, socio-cultural integration,
respect for the diversity and cultural identity, gender equality etc.). Human rights,
fundamental freedoms and respect for the dignity of migrants should be promoted
and effectively protected by the state, ensuring that the fundamental rights of
migrants and refugees are not violated.
Recognition of the social and economic contribution of migrants and refugees
in the countries of destination will ensure a constructive attitude at the expense of
one promoting division, and the chance of a better life, as an alternative for
development, should lead to an increased mobility and orderly manner. At the
same time, the world will support the policies of social inclusion and equality,
human rights, in a world characterised by greater solidarity and humanity.
The World Pact must pursue a wider and applied perspective in relation to
human rights, supporting the human rights of migrants and refugees, especially
regarding the existing problems and anti-migrant attitudes, xenophobia and
discrimination by taking measures to impos tolerance and respect for all migrants,
to deal with prejudice and social stigma of migrants.
At the same time, the Pact completes the objectives of The U.N. 2030 New
Agenda for sustainable development10, in which migration and human mobility are
included in four of the 17 objectives of sustainable development, recognizing the
positive contribution of migrants themselves and the fundamental role of migration
in the process of sustainable development. Here is emphasized the need to ensure
respect and support of human rights and humane treatment of migrants, irrespective
of their status. This global approach, aims at strengthening the link between
migration and development and accentuates the necessity of having effective
migration management that reflects the economic requirements of the host state,
the development needs of the countries of origin and migrant's rights.11
World Pact should be regarded as an opportunity for all Member States to
align migration and refugee policy at the international level, and acknowledging
that only effective international cooperation will provide the possibility of achieving
positive results, while respecting the principles and values of human rights. This is
a huge challenge for creating a viable world vision, a challenge with positive
effects in the long term, by providing new insights into host countries, but also by
stimulating economic growth and socio-cultural development of the respective
communities.
10 2030 Agenda for sustainable development was adopted by the United Nations, on 25 September
2015.
11 Special report carried out by the European Court of Auditors concerning the expenditure
incurred by the EU until 2014, in its eastern neighborhood countries and southern Mediterranean
foreign policy with regard to migration, 2016, p. 32.
78 CLAUDIA ELENA MARINICĂ
With the adoption of the New York Declaration related to Refugees and
Migrants, established on the 19th of September 2016, it is considered that „it is time
that the EU, in the light of this Statement, to revitalize its commitments, not only
between EU Member States, but also with the states of origin, transit and refuge.
A common approach, principled and pragmatic to handle refugees and migrants is
possible and easily achieved within the E.U. [...] founded on the principles of
respect for fundamental rights, responsibility, solidarity and trust12”. It requires
restoring the sense of solidarity, through relocation and reformation of resettlement
programmes, so that all EU Member States fulfil their obligations, the increase in
partnerships with countries of origin and transit, the development of a positive
perception of migration, taking into account that it can stimulate national economies
by creating new demand for goods and services, through the development of new
models of social mediation and intercultural dialogue.
Convinced that migration will remain a central issue for the political agenda of
every state, for European and international policy, world states must see in
migration, more humane and dynamic mobility of people, whose momentum has
got a new dimension in the context of globalization, aimed at strengthening
solidarity and responsibility of each state, and less of a short-term crisis. Migration
should be a priority not only for the countries most directly affected, but also for all
states of the world, whether or not they are subject to mixed migration fluxes,
aiming to extend the cooperation between states beyond the issue of refugees.
In order for the Pact to become a reality it takes a sustained international
cooperation for the development of a global policy on migration and refugees, there
is a need to create conditions for a sustainable economy and social responsibility and
solidarity. As the international dimension of human rights has progressively imposed
itself through slow but sustainable development, and in spite of certain reluctance,
quickly becoming a reality13, also the next period will demonstrate the ability of the
U.N. member states to cooperate and find appropriate solutions together for a single
policy relating to migration and refugees.
A World Pact for a safe, orderly and regulated migration in spite of the moral
and humanitarian challenge in all states would eliminate many of the gaps in the
current legal regulations at the international level and would provide a corpus of
general applicability, leading to the cooperation and coordination of legislation
and institutions involved at national and international level.
12 UNHCR, better protection for refugees in the EU and globally, 2016, p. 2.
http://www.refworld.org/cgi-
bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=589b51184.
13 Jean-Francois Renucci, Treaty of european human rights law, Hamangiu Publishing House, 2009, p. 9.