By Daisy Ni (PO ’21)
In the summer of 2018, the United Nations finalized the text of the Global Compact for Safe, Orderly, and Regular Migration, the first international agreement laying out a comprehensive framework addressing international migration. The Trump administration, however, withdrew from participation in December of 2017, citing the Compact’s incompatibility with national sovereignty. This move has been widely criticized by other nations and human right organizations. Many point to the fact that the Global Compact is not legally binding, in itself explicitly stating that it “reaffirms the sovereign rights of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction.” The U.S.’s withdrawal prompts us to ask: in what ways does the Global Compact, if in any, conflict with existing U.S. obligations under domestic and international law and practice?
The Global Compact contains 23 objectives approaching immigration on a local, national, and international standpoint, emphasizing a collaborative and humane approach to immigration. There is, however, uncertainty as to exactly what kind of instrument a “compact” is, and its implications for international law as a non-binding document. Primarily, scholars have recognized its powers as a tool of soft law in serving as a guideline for interpretation of hard law. The objectives provide detailed rules for executing existing law and can be used in court or in the exercise of discretion by national agencies or actors. Additionally, the Compact can pave the way for future commitments, such as formal treaties or solidification of customary international law. In these ways, the Compact is not legally irrelevant.
Some objectives of the Compact are in line with existing U.S. law. One such example includes Objective 10, which calls party states to “prevent, combat, and eradicate trafficking in persons in the context of international migration.” The U.S. Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) has been the main doctrine of domestic law and practice, assuring for many of the rights laid out in the Global Compact. For example, it increases the statutory maximum sentences for traffickers, specifically highlighting the various difference offenses related to trafficking and sentencing guidelines. It also includes provisions entailing protection programs for victims; importantly, it contains the Violence Against Women Act, allowing domestic victims who are spouses or children of U.S. citizens to leave an abusive relationship, or gain permanent residency, without the fear of deportation. These clauses reflect the Compact’s call for strengthening “legislation and relevant procedures to enhance prosecution of traffickers, and its provisions entailing protection and assistance programs for victims, “without regard to the immigration status of such victims.”
However, in other cases, the Global Compact can be more stringent than U.S. law. For example, Objective 13 urges that countries “use migration detention only as a measure of last resort and work towards alternatives.” In particular, the objective calls for “independent monitoring of migrant detention, ensuring that… human rights violations do not occur.” A major criticism of the U.S. immigration detention system is that there is no independent monitor mechanism or any judicial review to challenge detention. Only Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) conduct audits of immigrant detention centers. However, the ICE National Detention Standards that govern detention conditions are not legally binding and vary in their application depending on specific facilities, making true enforcement of standards impossible.
The same objective also calls party states to guarantee “due process and proportionality,” and ensure that detention is “for the shortest period of time.” Although U.S. courts have consistently held that all on U.S. soil are entitled due process, the extent of procedure constituting “due process” has varied significantly in different scenarios. For example, the Supreme Court ruled in 2003 that no-bail detention of immigrants during the pendency of their cases did not violate due process. However, immigration cases can last years. This ruling thus reflects a lack of commitment to minimize or reduce “negative and potentially lasting effects of detention of migrants,” as the Compact demands. Additionally, U.S. law sustaining expedited removal, which refers to the practice of deporting immigrants without a hearing or access to courts, also allows the bypass of due process rights. These laws, or oftentimes lack of laws, stand in stark contrast with the guarantees of the Global Compact.
Furthermore, there are provisions of the Global Compact with which the U.S. adheres in law, but not in practice. Objective 10, for example, also entails that “government authorities and private actors duly charged with administering immigration detention do so in a way consistent with human rights.” The Prison Rape Elimination Act of 2003 (PREA) specifically created enforceable standards, applicable to all jailing and detention systems, to reduce rape. Despite laws in place, however, sexual abuse remains a prominent issue in detention facilities, exacerbated by inadequate mental health resources and grievance reporting system. In this way, legal protections are often insufficient to ensure compliance with international agreements’ provisions.
The U.S.’s withdrawal from the Compact proves to many to be disappointing, as it was created precisely to strengthen international cooperation. Additionally, the Compact seeks to redress many of the biggest problems in immigration that the U.S. is experiencing today. The move, however, reflects the Trump administration’s overall attitude toward immigration and human rights. The agreement remains open, with the hope that the U.S. may become involved in the process once again in the future.