In 2016, the international community, in reaction to the growing number of ‘tragedies’ occurring as people attempted to move across borders, met to discuss large movements of refugees and migrants. The outcome of this meeting was an agreement to negotiate two Global Compacts, one on refugees and one on migrants, with the aim of facilitating ‘orderly, safe, regular and responsible migration and mobility of people’. This article explores how responsibility in the Global Compact on Migrant is expressive of a changed way of ‘doing’ migration. The language of ‘responsibility’ raises questions about how the international community views international migration and, by extension, prepares the ground for policy and practice on international migration. Taking a genealogical, jurisprudential approach, we follow the logic which brings migration, development and human rights language together to construct a new subjectivity: that of the ‘responsible’ migrant. The migrant human will be a rights-bearer because they will contribute to development in particular gendered ways. We argue that assuming a narrow understanding of responsibility misses expressive dynamics in the normalizing of international migration within a new framing to inform international law making.
Similar content being viewed by others
The management of international migration is founded on questions of legitimate access. Globalization has seen a liberalization of movement coinciding with an increased capacity to move. However, the dark underside of this is the violent exclusion from juridico-political status of some. As a consequence, people are suffering violent deaths in deserts, at sea and at heavily fortified geopolitical borders. In the last decade these tragedies have reached a crescendo, with thousands of people dying on their way to Europe as a result of upheaval in the Middle East and increasing securitization and externalization of borders (Oelgemöller 2017a, b).
In 2016, the United Nations General Assembly (UNGA) agreed to negotiate a ‘Global Compact on Safe, Orderly, and Regular Migration’ (GCM) which, following a period of negotiations, consultations and multiple drafts, was adopted in 2018.Footnote 1 This introduced a partial reframing of international migration more constructively in terms of development and a more pronounced emphasis on facilitating migration in line with human rights (see, for example, Solomon and Sheldon 2019; Crépeau 2019). One of the guiding principles of the GCM is ‘responsibility’ and the GCM itself is founded in the language of the sustainable development goals (SDGs).Footnote 2 The positioning of migration within the context of ‘responsibility’ ushers in the normalization of international migration and navigates, dramatizes and configures ‘responsibility’ beyond the narrow understanding usually given to the term in law. Thus, we want to pose the problem: how is responsibility employed, and what are its implications, for a transformed governance of migration?
In this article, we question the function of responsibility as a deeply ambiguous organizing concept. We argue that, in the current discursive environment, problematizing responsibility is interesting as a political and legal concept in the GCM. This is due to its ambiguity between maintaining the status quo and conceding to the appearance of the ‘responsible’ migrant as conditioning change in migration management. For responsibility creates a relationship: if governments claim, in the GCM, to take responsibility then there is someone or something implicated in that relationship to whom responsibility is owed.
However, this responsibility is not only owed by States to migrants. The GCM implicates other actors, positioning migrants, civil society, cities, the private sector and others as receivers of new duties,Footnote 3 to which they have to become responsive (Butler 2005). Responsibility, in the GCM, is an act that is, in the words of Butler, to be performed ‘for, to and even on another’ (Butler 2005, p. 91; italics in original). Thus, the notion of responsibility is not unproblematic to start with; our conceptual (Deleuze and Guattari 1994; Gane 2009, p. 87)Footnote 4 and jurisprudential (Mussawir 2011)Footnote 5 analysis will discuss politico-juridical notions of responsibility as they are found in the different draft versions of the GCM.Footnote 6
The methodology that we follow to understand the role of responsibility in the GCM draws on a particular approach offered by Mussawir (2011). It draws on Deleuzian ideas of the performative relationship between substance and procedure in policy and law-thinking, -making, and -speaking (Mussawir 2011, p. 89). What makes this relationship dynamic is the interaction and tension between representation of a standard or knowledge which is based on assumptions of recognition,Footnote 7 acceptance, or even dogmatism. This relationship is therefore reactive; and an expression of something new. It begins as wholly local, empirical and plural having not yet been abstracted wherein it becomes fixed and representive (Mussawir 2011, p. 82).
The intention is to make this tension visible by problematizing it and following how policy or legal standards are maintained, fought-over, transformed and invented. Based on this problematization, our analysis of the GCM begins by outlining the ‘scenes’ of responsibility, which we scrutinise for knowledges and materialities that are conceptualised as ‘intensity’ (Mussawir 2011, p. 82). Here intensity means to find the scene which makes sense of a problem (Mussawir 2011, p. 88) and that intends to invent a (new) way of navigating a situation (Mussawir 2011, p. 89). The power of such intensity—in our case ‘responsibility’ articulated in struggles between notions of sovereignty and moral values about human life and dignity—is that it extends to its limits what a concept can do in practice, and how it is performed (e.g. Butler and Athanasiou 2013, pp. 166–167).
This analysis sets the frame from which we then move on to ask questions about how such standards, procedures and knowledges are choreographed as they ‘do more than manage the functioning of a […] system: they also describe forms, structures, and “actions” through which logics of judgement come to be performed’ (Mussawir 2011, p. 118). Methodologically this move tries to hold the tensions without resolving them, which we have done by outlining the two most stylised logics side-by-side. Judgement requires critique of doctrine and it does so by holding reactive and active forces without resolving or fixing them.
Having thus achieved a perspective of the various tensions we finally move on to dramatizing the responsible migrant and other identities that are given roles and functions in the GCM. Dramatization asks: what characters dramatize a particular logic and what subjectivity is capable of living a particular logic? Mussawir writes: ‘we have not sufficiently “dramatized” a concept, a logic or a form of reasoning until we have fashioned the persons who are capable of living it’ (Mussawir 2011, p. 27). Dramatization means affirmation of difference; the question is whether or not and how difference is accepted as positive or in need of domesticating by fixing ‘status’ to attempt to arrest the potentially subversive power of responsibility.
In order to examine the role of responsibility in the GCM and beyond, we will, firstly, introduce the GCM and the place that responsibility has taken within its development. Following this, we will weave a narrative that explores the various ways responsibility is employed; highlighting both its representative, as well as its expressive, potential. By drawing on academic debates of the notion of responsibility, we will trace the intellectual streams that have pervaded the knowledge-making in mainstream and critical discourses which, in turn, informed the participants of the UNGA during their inquiry. We will then offer a close reading of the drafts of the GCM in order to tease out how the ‘responsible migrant’ is constructed in the draft versions of the GCM to evidence both the problem and the underlying logics framing responsibility. In a final step we will offer a critical assessment of the initial reference to responsibility, the work it does politically and its re-appearance in the drafts as a guiding principle and standard.
The Global Compact on Migration
The GCM was born out of a UNGA Resolution signed in September 2016, known as the New York Declaration. A UNGA Resolution is not a ‘hard’ law instrument, it does not have legal effect and is not legally binding on States (Öberg 2005). UNGA resolutions are forms of ‘soft law’ instruments due to their normative force (Allen 2015, p. 22). They provide context in which other, legally binding, instruments must be interpreted (Allen 2015, p. 31).Footnote 8 They declare the policy goals of States and have potential to lead to norm development, as such they are legally relevant.
Debates regarding the legal authority of a ‘Compact’ have been widespread (see Guild and Grant 2017; Gammeltoft-Hansen et al. 2017). The drafts of the GCM have explicitly stated that the Compact is non-binding on governments. However, the document is made up of ‘commitments’ and ‘actionable objectives’ that signatory States will pledge to fulfil, providing technical and standard-setting norms and giving the Compact a norm-filling role (Gammeltoft-Hansen et al. 2017, p. 8; Gammeltoft-Hansen et al. 2016). Peter Sutherland stated that:
The GCM on migration could bundle agreed norms and principles into a global framework agreement with both binding and non-binding elements and identify areas in which States may work together towards the conclusion of new international norms and treaties. (UNGA 2017, p. 87)
Like a resolution, the GCM may have normative and ‘soft’ law force, in particular in terms of the interpretative authority of such documents. The legal ramification of this is significant in two ways. Firstly, if States implement the ‘commitments’ and ‘actionable objectives’, they will frame and thus contribute to the development of opinio juris and, in turn, implementation will provide evidence of State practice (Akehurst 1974–1975). When adequate State practice and opinio juris combine, it could have meaningful impact in the development of custom and can, in time, influence the development of treaty law (Gammeltoft-Hansen et al. 2017, p. 8; Allen 2015, p. 22; Boyle and Chinkin 2007). Secondly, the commitment to implement the GCM by its State signatories, whilst not yet legally binding, remains politically binding with serious political ramifications should they continually fail to uphold these obligations (Guild and Weiland 2020).
The GCM stands out, according to the UNGA, as promoting a fundamental shift in government’s approaches to managing migration away from a focus on security (Nanopoulos et al. 2018)Footnote 9 and the migrant as threat, towards a focus on sustainable development and the migrant as rights bearing-subject (Solomon and Sheldon 2019). The New York Declaration states that the Sustainable Development Goals (SDGs)Footnote 10 serve as its normative frame. The relevant goal, outlining what the international community identifies as ‘normative’, is SDG goal 10.7: ‘Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies’ (UNGA 2015).
The Zero Draft of the GCM expanded on the particular place of responsibility in the changed framing of international people mobility by stating that ‘This GCM sets out our common understanding, shared responsibilities and unity of purpose regarding migration’,Footnote 11 making responsibility one of the guiding principles upon which the GCM rests. It states in particular:
Shared ResponsibilitiesFootnote 12
This GCM offers a 360-degree vision of international migration and recognizes that a comprehensive approach is needed to optimize the overall benefits of migration while addressing risks and challenges for individuals and communities associated with it. No country can address the challenges and opportunities of this global phenomenon on its own. We acknowledge our shared responsibilities to one another as Member States of the United Nations to address each other’s needs and concerns over migration, and an overarching responsibility to protect the human rights of migrants and promote our security and prosperity. (UNGA Zero Draft 2018, p. 2)
Thus, responsibility holds a fundamental role in the GCM, both as an acknowledgement of the common obligations upon UNGA Member States and as a normative standard against which migration is measured. So, how is responsibility envisioned and what does the standard of responsibility do in this context?
Responsibility in Its Protein Character
In order to understand the implications of the inclusion of ‘responsibility’ into the GCM foundations, we first consider the theoretical underpinnings of how law-making and legal authority interact with each other in the next few paragraphs by briefly thinking about the idea and practice of jurisprudence from a Deleuzian perspective. International law-making evolves out of a trajectory of doctrine formation in which ideas are moulded, circulated and normalized to form declarations that are intelligible to the International CommunityFootnote 13 and which are informed by, and inform, practice. This practice is diverse, it considers law, but it also concerns broader political negotiations, social standards and fields of knowledge making.
Mussawir draws on Deleuze to discuss the dynamic of the ‘expressive jurisdictional practice of jurisprudence’ as the ‘creative negotiation of the technical field of law that is co-extensive with life’ (Mussawir 2011, pp. 2–3). What is drawn on is the relationship between the expressiveness of juris-diction, informed by its literal roots in ius and diction as ‘legal speaking’ (Nancy 2003, p. 154; Mussawir 2011, pp. 2–3), and representation as the descriptive conformity of what already is. Juris-diction invents, orders and makes judgements that are expressive of something new or transformed as it engages with the messy ‘realities’ with which legal speaking is confronted. By contrast, jurisprudence concerns questions of sovereignty and its relation to State authority that is ‘represented’, in the sense that it is assumed to be established, along with the laws and practices which maintain an assumed set and closed fixity. Thus, whilst questions of sovereignty and State authority are shown to be represented, held stable and assumed to be the unchanging right of a State in the GCM, the document also undermines this assumption by expressive inventions and transformations that are negotiated into the document. Responsibility, as we will show in what follows from here, presents itself as a potentially subversive power that cannot be domesticated.
Public international legal conceptions of ‘jurisdiction’, in contrast to the jurisprudential notion, concern the scope and applicability of the legal authority of the State (Besson 2017; Waldron 2017). It is through the exercise of this authority over individuals, whether territorially, personally or kinetically, that the State acquires responsibility to uphold and ensure the protections of specific obligations (Milanovic 2018; Besson 2017; Rooney 2015; Ryngaert 2015). Importantly, jurisdiction in this sense expresses authority as technical, thus missing how authority is performed through the language of norms located in institutions (Mussawir 2011, pp. 2–3). Paying attention to the technical production of an abstracted normative order and universalized social roles and capacities is an interesting challenge when considering the negotiation of potentially newly minted standards. More specifically, the problem we are posing is that ‘responsibility’ is multiple, contradictive and productive, hence we are looking here at the protein character of the idea as it is used in recorded knowledge.
Having presented our theoretical starting point, the rest of this section will explore how responsibility as a foundational principle in the GCM is ‘multiple, contradictive and productive’, and thus problematic. We will first offer an insight into different notions of responsibility in the literature, engaging with lines of critical thought, to provide a lens through which to makes sense of, and analyze the GCM drafts. We will then provide an overview of current thinking in international law regarding migration and State responsibility more broadly as this is the formal reference point for governments negotiating the GCM within the remit of the UNGA. Finally, we will highlight the narrative of responsibility in the context of migration and development as this is the stated normative framework within which migration is to be re-positioned.
Much of the literature dates responsibility as having made an appearance in the seventeenth and eighteenth centuries and draws on J.S. Mill treating responsibility as a feature of the political life of the individual (Mill 1966, pp. 1–147). By the nineteenth century, responsibility seems to have distilled into the two functional ideas of imputation (debates about the nature of free will, capacity, determinism and questions of human nature) and accountability (debates about punishability, justice and questions about obligation and duty), concepts that have a far older heritage. Responsibility is a discursive and practical socio-political problem appearing in the context of the declarations of man and the emergence of fledgling ideas of democracy, law as an institution and individual culpability (McKeon 1957, pp. 3–32; Ricoeur 2000). These views have largely been adopted by, and provide the foundation of, our contemporary legal jurisprudence.
Set against that, for Arendt, responsibility must be collective:
no moral, individual and personal, standards of conduct will ever be able to excuse us from collective responsibility. This vicarious responsibility for things we have not done, this taking upon ourselves the consequences for things we are entirely innocent of, is the price we pay for the fact that we live our lives not by ourselves but among our fellow men, and that the faculty of action, which, after all, is the political faculty par excellence, can be actualized only in one of the many and manifold forms of human community. (Arendt 2003, pp. 157–158)
Jonas, who corresponded with Arendt, settles on an even wider argument that responsibility is duty to the future of human kind, as it is ‘the indefinite future, rather than the contemporary context of the action, [that] constitutes the relevant horizon of responsibility’ (Jonas 1984, p. 6).
What has evolved by the twentieth century, in the twists and turns between political events and their discursive interpretation and practice, is a concept that expresses responsibility as both individual and collective. Individual responsibility, by way of governments setting law that makes public life predictable. Collective responsibility, by way of mechanisms that allow for scrutiny of democratic government in which the assumption is that an individual ‘acquires responsibility only by exercising it’, presuming community (McKeon 1957, p. 24).
Notwithstanding this, there is also a wide literature emphasizing the ethical character expressed in the idea of responsibility, acknowledging not only interconnectedness, but also phenomena of complexity of political life and uncertainty as a condition in which this political life takes place (Feinberg 1968; French 1984; Arendt 2003; Graham 2000; Levinas 1981, 1990; Connolly 2002; Butler 2005). One consequence of this plurality is that it is increasingly more obvious that there are no easy determinants as to what is considered to be right or wrong, and who might be responsible. Abstractions, both in law and in discourse more generally, make the allocation of responsibility opaque, if not impossible.
Shklar notes that injustices often happen ‘in a framework of an established polity with an operative system of law, in normal times’ (Shklar 1990, p. 19, emphasis added). This system of irresponsible, mostly bureaucratic, systems that abstract so much that responsibility cannot be imputed or easily be accounted for (Veitch 2007), is clearly in evidence when looking at the loss of life at the geopolitical fault-lines between the global North and the global South. Here mobile people seek to gain access to regions of the world that are not so much malevolent (though increasingly they are) as thoughtless. The system that is based on the doctrine of migration management amounts to what Young calls a ‘systematic threat of domination and deprivation’ (Young 2011, p. 52) reminding us of its unsustainability in the face of the interdependence of all human beings. Since 2016, it seems governments agree—to a degree—which is why they have conceded to engage in learning about migration and policy change. This change of perception may also answer for the relative prominence of the idea of responsibility as a guiding principle in the GCM.
Kelty, in another context, observes that ‘at the heart of this transition [of responsibility] is a reversal: from responsibility for the causes and consequences of something that occurred in the past to a form of prudence today (phronesis) in which responsibility designates a prospective concern’ (Kelty 2008, p. 3). The result of such change of concept, especially if we understand it with Deleuze and Guattari, links both back in time, is radically immanent and empirical, and an attempt to project into the future (Deleuze and Guattari 1994, pp. 15–17). However, the GCM—given that it is supposed to be a consensus-document—necessarily abstracts any notion of responsibility. As such, it may well be undermined as soon as it is contextualised: the plurality of any immanent situation makes the notion of responsibility radically open to interpretation. There is no core to responsibility, other than that it legitimizes a regulatory solution.
Yet, and importantly, as Butler discusses when she draws on Levinas, responsibility as abstraction does act ‘upon others in ways over which we have no say, and […] this passivity, susceptibility and condition of being impinged upon inaugurates who we are’ (Butler 2005, p. 90 italics in original). She elaborates:
If power relations weigh upon me as I tell the truth and if, in telling the truth I am bringing the weight of power to bear upon others, then I am not simply communicating the truth when I am telling the truth. I am also putting power to work in discourse, using it, distributing it, becoming the site for its relay and replication. (Butler 2005, p. 125)
There is more than one ‘truth-telling’ involved in the GCM, responsibility is an act that is performed ‘for, to, even on another’ (Butler 2005, p. 130, italics in original). Agency, even a State’s sovereign agency, requires a unique response to a specific situation that emerges through particular events and connections, rather than simply establishing a subject represented as abstract ‘status’ (Deleuze and Guattari 1987).
Under international law, States are the primary subjects of responsibility, they hold obligations and therefore the burden of compliance rests on them (Waldron 2017; Besson 2017; Crawford 2002). As traditionally understood, a State’s responsibility is engaged within its territory and has a strong link with the notion of sovereignty (Ryngaert 2015, p. 1). In this sense, jurisdiction is defined by the territorial dimension within which a State has the ability to enforce and prescribe its legal authority as well as to define whom this authority pertains to, usually via definitions of citizenship (Ryngaert 2015, p. 3).Footnote 14 However, such a view contrasts to the discussion that was had above. There is, of course, a little more nuance to responsibility in international law.
Responsibility here is, first and foremost, defined by the concept of sovereign equality: a State’s entitlement to exercise jurisdiction is a consequence of its sovereignty but it is limited by the sovereignty of other States (Akehurst 1972, p. 3). This continues to be the approach pursued by States attempting to limit their responsibility abroad.Footnote 15 However, with the growing number of international obligations that States are bound by, and the increasing overreach of State authority beyond sovereign borders; this traditional concept is dissolving (Milanovic 2018; Rooney 2015; den Heijer and Lawson 2012).Footnote 16 Jurisdiction for the enforcement and prescription of international rules is no longer limited to the State sovereign space, and by extension responsibility for upholding international law is also extending beyond State territory (Milanovic 2018; Wilde 2012). State’s activities, obligations and control extend beyond their borders and so too does their responsibility for failures to abide by these obligations (Milanovic 2011).Footnote 17
The traditional, territorially bound, approach to jurisdiction promoted by States is problematic theoretically, empirically and practically, particularly when setting standards for human rights and internationally mobile people. The Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) define in Article 12 that ‘there is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character’ (ARSIWA 2001; emphasis added). State responsibility will arise when there has been a breach of an international obligation that is attributable to them, through an act of an agent, organ or group empowered or controlled by that State (Article 3 ARSIWA 2001; see Condorelli and Kress 2010; Fry 2014). Thus, one of the assumptions underlying State responsibility is that it is focused upon relationships between nation-states that are juridically and territorially distinct (Crawford and Olleson 2010; Markard 2016). However,
as international cooperation and use of private contractors have developed, states are increasingly willing to outsource or internationalise core law enforcement issues, such as migration control, […] New forms of cooperation in turn raise additional difficult questions about divided, shared and joint responsibility under international human rights law, as well as the inter-operation of different legal regimes. (Gammeltoft-Hansen and Vedsted-Hansen 2017, p. 2)
Thus, under Article 16 of the ARSIWA, responsibility can arise for acts of complicity where a State has ‘aided and assisted’ in a breach of international law, whilst Article 47 provides for joint responsibility (see Jackson 2015). As a result, as courts are increasingly willing to expand the extraterritorial obligations of States, such States respond through increasingly problematic means of limiting their responsibilities, and liability, especially in the context of people mobility and these people’s protection (Gammeltoft-Hansen and Vedsted-Hansen 2017; Jackson 2016). In the context of the GCM ‘responsibility’ framework, which shifts the framing from security to development, how this responsibility will manifest is problematic.
Reading the New York Declaration, it would appear that the International Community is dedicated to leave perverse policies behind and concentrate on their obligations under the human rights instruments ‘at all stages of the migratory process’ (GCM 2018, p. 4) by framing international migration in terms of development. A generous reading of the Zero Draft of the GCM might lead to the view that the International Community is even willing to go further than compliance with their negative obligations by upholding their positive obligations. This is interesting as Milanovic argues that positive obligations to protect individuals and prevent the violation of their rights, however, remains subject to territorially limited definitions of jurisdiction (Milanovic 2011).
The remit of jurisdiction spans time, not just geography. A future-oriented, positive, responsibility presupposes the formulation and agreement of an international public good. Sustainable development is such a good, expressed through decades of international development aid which is formulated as principle setting, as for example in the 1986 Declaration of the Right to Development, declaring in Art. 1(1) that it ‘is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development…’. Later declarations have drawn on these first norm expressions to emphasize ‘competence to cooperate’. The then UN independent expert on the right to development, Arjun Sengupta, emphasized that States which recognize the right to development are obliged to take positive action to assist the citizens of other States in realizing those rights (Sengupta 2000, p. 570). States have the jurisdiction to engage in such cooperation for the future.
However, such future orientation also expresses challenges. The ARISWA, being a secondary instrument, is mainly concerned with responsibility as accountability for violation in the past and more specifically violation that is attributable to States (Crawford 2013). Primary instruments, such as the Human Rights instruments, formulate obligations for protection of which the ‘right to development’ is only a right by analogy and only if it is interpreted as a negative right.
This raises the question of what status, if any, responsibility as ‘competence to cooperate’ has. Competence to cooperate seems to be suggested in the New York Declaration for operationalization by the GCM (New York Declaration 2016, paragraph 11). If positive obligations are territorially bound and the only legitimate subject is the State, this raises jurisdictional questions regarding the character and later implementation of the GCM as it is aimed to formulate both positive and negative obligations for governing international migration (Milanovic 2011).
In short, as long as responsibility is a normative framing device for the GCM with its emphasis on development, whether or not this may lead eventually to a formulation in international law, there is wide scope for political doctrine formation with ambiguous effects. State responsibility in the traditional sense is dissolving and the ‘competence to cooperate’ is performing a new kind of responsibility, which begins to be intelligible through the introduction of positive obligations and development. How this is going to be enacted, though, and whom by, is not yet settled. Thus, the next sub-section will give an impression of the contemporary discursive expression of responsibility in the context of migration and development.
Responsibilization in Discourses Around International Migration
Since the late 1990s migrants have been recognized by many States as a population endowed with human, economic and social capital. This ‘discovery’ led to what some in the literature describe as the ‘diaspora option’ (Pellerin and Mullings 2013). The SDGs embrace this policy orientation in an attempt to secure the ‘welfare of the population [and] improvement of its condition’ (Li 2007, p. 270) as a global goal which sets out that the politics of ‘leaving no one behind’ means that everyone ought to be a part (Gabay and Ilcan 2017; Weber 2017).
In this context migrants are understood as new agents of change. However, this rests on problematic assumptions, as Sinatti and Horst show: the sedentary bias, which grounds much of ordering the world, attempts to fix people into place (Sinatti and Horst 2015). It does so in such a way that migrants are made sense of with an essentialized ethnic identity; drawing on this premise it is then assumed that such a person either will not want to move, and if she does, naturally will want to return to their roots; from there the assumption is made that the migrant is thus willing to cooperate in development practices (Sinatti and Horst 2015). At the same time it is also assumed that development practices are based in expertise, whereas diaspora engagement is non-professional charity. Hence, capacity building is to be invested in with a view to professionalizing this homogenized new development actor. Adding to the above summarized logic, Suliman, by analyzing the SDGs in terms of migration, comes to the conclusion that, framed in this way, migrants can be indexed according to their potential contributions to the development effort (Suliman 2017). In effect, the attribution of diaspora is mobilized by governments to conclude that a migrant’s responsibility to engage is natural and unproblematic. This line of thinking is supported by people who claim the diaspora label for themselves. Low sees diaspora engagement as obligation of citizenship (Low 2017), Werbner argues co-responsibility to an imagined homeland (Werbner 2002), which is explained, e.g. by Kapur, through sentiments of sympathy and guilt (Kapur 2007).
Development, understood broadly as ‘expansion of capabilities and choice’ (Sen 1999), is to be achieved by programmes of intervention towards improvement. Yet, as Li shows, such improvement is about drawing boundaries around a knowable, manageable, technical domain, even if this domain is marked by the dynamics of diverse relationships (Li 2007). Improvement is thus a question of the ‘how’ of governance and juridical idea guiding the framing and implementation of development practices. It is also a question of representing a particular kind of subject: the responsibility-taking agent of development. Improvement—development—is thus a political construct along with its attendant concepts in policy and international law and practice.
The SDGs stipulate that sustainable development is a global enterprise and not limited to those countries defined as ‘developing’. In this vain Clarke observes that development is couched in processes of ‘responsibilization’ (Clarke 2005, p. 451). Roche explains that this politics ‘finds its voice in the discourse of rights. In the late twentieth Century it also needs to be able to speak, to act, and to understand itself in the language of … personal responsibility and social obligation’(Roche 1992, p. 246). Here obligation and opportunity aspire to improvement, the logic underlying this assumption is a particular kind of conditionality: you meet your responsibility if you want the benefits. However, as Lister points out, it is a way of regulating behaviour to ‘making better choices’ and evidencing ‘decent’ behaviour, by e.g. engaging in diaspora activities, and ‘playing by the rules’, so to not undermine immigration regulations by forcing access (Lister 2011). In this way the law-abiding citizen is defined. Yet, as Giddens has argued, such logic exacerbates inequality by targeting the poor (Giddens 2010, p. 35). What this logic does is it imposes obligations on those who would actually be in need of assuring their rights.
There are fledgling counter-discourses to this dominant political environment, in which governments set out conditional calculations, whilst others argue for rights protection and both work towards a particular kind of improvement couched in a particular understanding of responsibility, that of the atomistic individual who is free and self-forming (Warner 1991). Counter-discourses draw their inspiration from feminism, which locates responsibility in an ethic of care; or from environmentalism, which locates responsibility in an obligation of sustainability (though this notion is differently configured than in its SDGs expressions, and from human-rights discourses that locate responsibility back in protection).
Representation and Expression: The Making of a Problem
The ‘problem’ we seek to shed light on here is multiple in itself: governments acknowledge a certain kind of plurality and contestedness, they seek to innovate through the notion of ‘competence to cooperate’ whilst holding on to mythical, classical, notions of sovereignty standards. As the discussion above has already shown, migrants cannot be essentialized into either a mass of illegals or docile cohorts of agents of development. Whilst some may be happy to engage in activities and relationships that do lead to development of a family, village or sector, others are not willing to engage in these kinds of ways. Thus, by formulating a new vision for the governance of international migration, governments deal in abstracts, generating prescriptions that need locating in the specificity of the empirical. We acknowledge the need for concepts to help us think, just as we acknowledge that a degree of ordering through agreements, policy and rights are both empowering and destructive.
In order to build on the problem we have so far outlined, we will read the drafts of the GCM by loosely drawing on the approach earlier introduced that Mussawir elaborates (Mussawir 2011, p. xi). This is done by looking at the ‘creative negotiation of the technical field of law that is co-extensive with life’ (Mussawir 2011, p. 3). This means that we will start with where we are: the government’s outputs of negotiation on the GCM as ‘immediate’ situation. We seek to engage with the dynamics of representation and expression to analyze the technical production of a juridico-political order with the purpose to think about how standards are navigated. We do so by looking at a selection of scenes of responsibility, how they are dramatized by crafting ideas of the legal person and finally, how standards are configured by choreographing decisions over knowledge as action. All these give expression to a variety of articulations of responsibility.
We begin by exposing the logic(s) of responsibility that form our scenes in the GCM more broadly. This exposition is followed by identifying two distinct articulations of responsibility within the GCM, both of which are trying to grapple with the migrant human. We identify decisions over knowledge that choreograph a representational standard on the one hand and might be expressive of a new standard that is as yet open and un-domesticated on the other. How these articulations dramatize by crafting subjects will be the focus of the conclusion.
Scenes of Responsibility
The New York Declaration for Refugees and Migrants sets the tone clearly when it states at the beginning that the governments ‘recognized clearly the positive contribution made by migrants for inclusive growth and sustainable development’ and ‘We reaffirm and will fully protect the human rights of all refugees and migrants, regardless of status; all are rights holders’ (New York Declaration 2016, p. 5). This is strong language, which is reaffirmed a few paragraphs on when the documents record ‘We are determined to save lives’ (para 10) and ‘We acknowledge a shared responsibility’ (para 11). This is good news—at least at face value. These statements could be interpreted as governments embracing the requirements set down in international instruments to protect, which not only encompass not letting people die by wilful negligence but to actively promote structures that allow for choices that people are making anyway—that is moving and living. Moreover, rather than debating migration policy secretively, this time around the process seems to be more open, allocating a role to migrants ‘to support efforts to implement the commitments we are making today’ (para 15).
Much of the above positive language of taking responsibility is repeated in the Zero-draft of the GCM by setting down ‘an overarching responsibility to protect the human rights of migrants’, though directly qualified by adding ‘and promote our security and prosperity’ (UNGA Zero Draft 2018: para 9). In the Zero Draft Plus this has changed to ‘an overarching obligation to respect, protect and promote the human rights of migrants’ (para 10) and in Revision 1 we see ‘regardless of their migration status’ added (UNGA Revision 1 2018a: para 10). By the time Revision 2 was agreed we read: ‘an overarching obligation to respect, protect and fulfil the human rights of all migrants, regardless of their migration status, while promoting the security and prosperity of all our communities’ (UNGA Revision 2 2018b: para 10). The differentiation between ‘migrant’ and ‘our’ is instructive, even if it is less stark in the latest negotiated version.
Responsibility is thus a moving and uncomfortable beast, it is more than window dressing and it is ambivalent even in the opening paragraphs as to what it is to entail, who is to ‘be’ responsible and what ‘actors’ are brought about by employing the notion of responsibility. Thus, having made such a good start, Revision 1 is particularly interesting as it betrays just how uncomfortable governments are with their new-found generosity:
We recognize that migrants and refugees may face many common challenges. However, migrants and refugees are distinct groups governed by different legal frameworks. Unlike refugees, migrants are not inherently vulnerable, but their human rights must be respected under international human rights law at all times,… (UNGA Revision 1 2018a, para 3)
It is then added somewhat contradictorily ‘in particular when they face an increased risk of violations and abuses’ (Ibid 2018a). However, from Revision 2 onwards, drafters make it clear that it is only refugees that enjoy particular protection (see Revision 2 2018b, para 3; Revision 3 2018c, para 3; Final Draft 2018d, para 4). It seems that despite all the pressure from dying migrants all over the world, governments cannot quite help themselves from emphasizing their own sovereignty. The transformation of the expression of sovereignty in the drafts under the heading of guiding principles bears showing (italics added by authors), in particular as the rather more tempering notion of exercizing sovereign prerogative responsibly vanishes by the time Revision 2 is published:Footnote 18
National sovereignty: The GCM reaffirms the right of States to exert sovereign jurisdiction with regard to national migration policy. It strengthens the capacity of States to exercise their prerogatives responsibly as they determine the conditions under which non-nationals may enter, reside and work on their territory. (UNGA Zero Draft 2018: para 13)
National sovereignty: The GCM reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law. Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status as they determine their legislative and policy measures for the implementation of the GCM, taking into account different national realities, policies, priorities and requirements for entry, residence and work, in accordance with international law. (UNGA Revision 2 2018b: para14)
The driving force behind the New York Declaration was the number of people dying at international faultlines that had become so substantial that they could not be ignored anymore. These people die because of the insistence on sovereign prerogative—interestingly, there is no reference to ‘responsibility’ in Objective 8, ‘Save lives and establish coordinated international efforts on missing migrants’. In other words, the GCM becomes silent about either status or responsibility precisely at the point where government policies put lives at risk and where they could be answerable, as the current filing of a case before the European Court of Human Rights against Italy over pushbacks to Libya shows (Baumgaertel 2018).
What is belaboured in the above is that there is an impulse—at least—to ‘do better’, an uncomfortable acknowledgement that migrants are human beings ‘as well’ and that international mobility is not something that can be stopped but needs to be normalised. However, the framing paragraphs which are to set the tone and direction of the GCM also clearly portray that it seems a thing of impossibility for governments to let go of notions of territorial sovereignty, in which a territory and people therein need to be protected as if migration was not only a threat but also an insult.
What these framing paragraphs certainly do is they establish a new logic which is that, for good or for ill, migrants are actors and responsibility as guiding principle is not straight forward. Revision 1, for all its betrayal of not wanting to concede an inch to the fact of migration and re-introducing much security thought and language does state in paragraph 11 that the GCM ‘strives to create conducive conditions that enable all migrants to enrich our societies through their human, economic and social capacities, and thus facilitate their contributions to sustainable development at the national, regional and global levels’ (UNGA 2018a).
How does this discomfort over responsibility play out in the formulation of Objectives which are to set standards and commitments? As briefly outlined above, jurisdiction holds a performative role when it navigates, dramatizes and configures standards for decision-making. The GCM allocates a lot of responsibility to a lot of different actors in a variety of knowledge fields. Here we want to briefly expose two examples of how the GCM crafts responsibility, the subjects of responsibility and the sites in which such responsibility take form. One example is representative of a subjectivity already established and cemented by migration management: the illegal migrant, now legitimized by the legal migrant human who submits to conform. We only briefly outline this articulation, as we focus on how the responsible migrant is crafted in a way that had not been intelligible to governments before. Thus, the other example is expressive of a new subjectivity which places a demand on the migrant human to become a contributing partner in the endeavour of governing international mobility and development.
Choreographing Knowledge as (Proposed) Action
The following narrative is familiar, if contested, insofar as plenty of analysis is available discussing the problematic mechanisms that make people irregular/undocumented/clandestine (Kim 2017; Scheel and Squire 2014). The GCM discursively establishes illegality as legitimate, because for the first time there is an acknowledgement that (1) migrants have rights, (2) it follows they have obligations and, framed within the context of sovereign prerogative, this establishes (3) the legal migrant, and (4) by extension, legitimately, the illegal migrant as someone who did not live up to their responsibilities to conform with the law.
How, then, is this crafting articulated in the GCM? Put starkly, the GCM establishes the illegability of a migrant human. In Objective 3 para 18(d) of the Zero Draft PlusFootnote 20 the GCM explicitly mentions the ‘rights and obligations’ endowed upon the migrant. The paragraph is clear that governments assume that migrants have the necessary information about what they have to do in order to comply when attempting to access and live in a country other than that of their citizenship. In exchange they will have access to rights as claimants. In endowing these rights and obligations the migrant is performed as ‘rights bearing subject’, albeit one that is still conceptually different to those who hold invisible privilege protected by a territorially sovereign state with jurisdiction over a people.
Paragraph 3 sets out the government’s understanding: ‘We recognize that migrants and refugees may face many common challenges. However, migrants and refugees are distinct groups governed by different legal frameworks’ (Zero Draft 2018—Revision 3 2018c para 3; Final Draft 2018d, para 4). Such an understanding is rather narrow both empirically and, for that matter, politically. Boundaries are drawn and thus paragraph 3 goes on to state that ‘unlike refugees, migrants are not inherently vulnerable’ thus implying their culpability when defined to act against the law in questions of access to a country. Paragraph 3 goes on ‘but their human rights must be respected under international human rights law at all times’, thus engaging the new-found mantra that migrants are people and therefore have rights. However, the sentence is finished by drawing on the discursive move limiting the agency just awarded with the provision that there may be abuse or vulnerability, thus opening the possibility of falling back on the tropes of the migrant as either victim or criminal. Hence the creation of a legal person who is not ‘inherently’ vulnerable and is both subject and agent of international human rights law, the migrant is entitled to rights, but also to obligations. The migrant is conditioned as potentially culpable and by extension illegable.
We see an unfolding of norm creation in which the migrant newly appears as almost recognizable by defining the rights-bearing migrant human. And by recognizing the migrant as such an individual, the GCM also defines its ‘other’, becoming visible in the acts that capture the illegable migrant human.
Partnerships for Contribution
The GCM also makes space for a very different kind of knowledge and thus a different kind of migrant actor. Here, responsibility is performed through reference to empowerment as partnership in which capabilities are harnessed and thus migrants are placed/acknowledged to contribute. Having said this, similar ambiguities as in the example before surface, thus in Objective 18 the language in the Zero Draft and Zero Draft Plus made reference to ‘workers’ which was changed in subsequent drafts to either ‘migrants’ or ‘migrant worker’. This is significant given that conceptually the worker is not quite as ‘foreign’ as the ‘migrant worker’ or the ‘migrant’, not only juridically but also politically.
What is remarkable is that the GCM seems to be willing to shift the discourse and draw on different frames of making sense of international mobility. For example, Objective 18 para 33(a) tasks governments, in collaboration with industry to ‘develop standards for the recognition of foreign qualifications and non-formally acquired skills … with a view to ensuring worldwide harmonization (Revision 1 2018a, para 33(a))/compatibility (Revision 2 and 3 2018b, c, para 34(e)) based on existing models and best practices’. And following on from this, in Revision 2, a substantially revised text for Objective 19 para 34 asks in (h) that benefits of diasporas are optimized ‘for countries of origin and destination and their communities, by facilitating flexible modalities to travel, work and invest …’ (Revision 2 2018b, para 34(h)) so that conditions are created ‘for migrants and diasporas to fully contribute to sustainable development in all countries’. Objective 16 para 31(f) (later Objective 16 para 32 (e)) demands that migrant women are empowered to ‘promote their leadership and guarantee their full, free and equal participation in society and the economy’.
Thus, an optimistic reading would suggest that the inquiry conducted before the drafting and negotiating process began had resulted indeed in a better understanding of international mobility more generally: the capacity of all human beings, whether they are migrants or not, to build meaningful lives, and even the realization that women who migrate are not only not dependent but can be political agents capable of leadership. In short, what is expressed in the GCM is ‘new’ knowledge insofar as governments are, for the first time, willing to formally concede that migrant humans can engage meaningfully in political, social and economic activity. Governments, in this context, also give a different kind of account of themselves: one as facilitator establishing relationships of symmetry and even partnership; thus in paragraph 14 the GCM states ‘It’s authority rests on its consensual nature, credibility, collective ownership and joint implementation, follow-up and Revision. … [It] promotes broad multi-stakeholder partnerships’ (Revision 2 2018b, para 14).
The GCM is remarkable in this regard; however, it is important to look at the framing within which this knowledge is produced. It is not framed by improvement, as much of the literature had identified to date, but by the logic of contribution. One reading might indicate symmetric relationships and a genuine assumption of partnership. However, looking more closely at the language that develops throughout the drafts, we can observe the slow movement towards not only introducing conditionality but also constructing the responsible migrant. On the one hand, the GCM formulates considerations around skill acquisition and more broadly development; and, on the other hand, it integrates very specific considerations about remittances.
Concretely, reading Revision 2 Objective 18 para 33(k) betrays such an assumption of genuine partnership. It provides for mechanisms to establish screening of credentials and assessment of skills prior to departure. This indicates a multiplicity of responsibilities and actors to take on such new duties, including migrants but with the proviso that it is checked that they actually can contribute; in particular contribute in the way understood by the GCM.
Several problems arise out of the above, most importantly the assumed ‘bond’ between a citizen and a state. Revision 2 Objective 19 para 34(j) phrases contribution as building ‘partnerships between local authorities, local communities, the private sector, diasporas and hometown associations to promote knowledge and skills transfer between their countries of origin and countries of destination, including by mapping the diasporas and their skills, as a means to maintain the link between diaspora and their country of origin’ (2018b, para 34(j)). This is re-iterated in the Final Draft paragraph 44 under the heading of ‘Implementation’. There is no such necessary relationship of loyalty, whether motivated emotionally or on the basis of duty—even if there is a body of literature as outlined above that argues along similar lines. Attempts to reach into the realm of the private by wanting to harness knowledge and skills transfers, is actually an imposition, as Butler points out, that may not be answered.
The other way that contribution is understood in the GCM, this time more narrowly understood in terms of financial remittances, demands that instruments are developed ‘to promote investments from remittance senders in local development and entrepreneurship in countries of origin … in order to enhance the transformative potential of remittances beyond the individual households of migrant workers’ (Revision 2 2018b, Objective 20 para 35(g)). Here again ambivalence shines through, governments can—and maybe should—regulate international money transfer such that those who transfer do not exploit the hard work of those who are sending the money. But beyond that, the government cannot ‘incentivise’ contributions as they are voluntary. It is at this point where the crafting of a new legal subject becomes visible.
As already elaborated and shown above, governments accept that mobility is part of our human experience, but also hold that ‘migration undeniably affects our countries in very different and sometimes unpredictable ways’ (Zero Draft 2018, paragraph 6). And given this perceived unpredictability governments insist somewhat crudely in Zero Draft Objective 11 para 25 (d) that full compliance is to be promoted, not just compliance for governments but also a migrant’s responsibility if he or she is to be acknowledged as full migrant human. By the time Revision 2 was published the language in Objective 11 para 26 was more subtly phrased either as responsibility of the state to conform to international legal instruments or a technical due process issue at borders that allows for complaint mechanisms. In Revision 3 there is no mention of compliance anymore, but a new point (f) that allows for sanctions applied to migrants who do not conform. Thus, the expectation of compliance to ‘play by the rules’ remains. A quid pro quo of recognition as rights-bearing subject and active partner conditional on compliance not only with the laws proscribing legal access and work arrangements, but also of complying with what counts as contribution as framed by the GCM.
So, how is this new relationship choreographed? Unsurprisingly a degree of discomfort about what governments are embarking on is expressed, for example, in Objective 1 para 16(d) in the Revision 2 version in which governments want to ‘collect, analyse and use data on the effects and benefits of migration, as well as the contributions of migrants and diasporas …’ (2018b). However, especially Objectives 15 to 20 clearly emphasize the state as facilitator allocating duties to non-state actors to make sure migrants cause such contribution to happen. Yet, as Objective 21 para 36 outlines, those who somehow do not fulfil the right criteria will face return, even if this is to be done within accountability measures as set by international legal standards. In short, the sovereign prerogative here includes an unstated but nonetheless potentially forceful ‘or else’: if the migrant human is to be a rights bearer, he or she will have to contribute to the universal effort of sustainable development. Should he or she not be willing to do so there is little space for this subjectivity and he or she reverts back into a subjectivity to be treated either as victim or as unwelcome, if not criminalised as threat.
What we have shown in this section is how both reactive and active forces are woven together in new ways in order to make sense of international human mobility. We have also shown that this weaving is still tentative and somewhat uncomfortable with the attempt to normalise migration. Moments of representation and expression work together in beginning to carve out new modi vivendi in which a range of actors are formally brought into participate in managing migration. Thus, when we have referred to ‘the making of a problem’ in the section’s title, we highlight that the notion of responsibility is articulated through the GCM in ways exceeding either narrow prescriptions arising out of sovereign prerogative and international law: both reach outwards and inwards aiming to integrate international migration into the governance of a globalised world that is both international and local. So, what are the implications of recognizing the migrant as human and inviting the ambiguity of responsibility as a guiding principle into the governance of international migration?
Dramatizing the Responsible Migrant
After the New York Declaration in 2016 governments have consciously embarked on learning about migration. Governments have asked experts, consulted with different groups locally, nationally and internationally who are engaged in migration in different ways. Governments have engaged with academic research—even if that was selective. What stands out, as IOM’s former General Director, William Lacy Swing, noted on 18 April 2017 in his opening address of International Dialogue on Migration,Footnote 21 is the realization that governments have failed international migrants, that policy has been based on prejudice informed by xenophobia and that therefore a different way of governing migration is needed.
The different versions of the GCM make visible government’s attempts to navigate different knowledges on migration and to avoid framing migration almost exclusively in terms of securitization and criminalization, by emphasizing (a) that migrants are human beings and that, therefore, the human rights instruments, both normatively and juridically apply; and (b) that there is benefit to be had from international migration for all involved, suggesting that a more conscious engagement could harness such benefits more widely. Maybe necessarily, as governments navigate the variety of all the knowledge gleaned, the nuance is lost to abstraction and simplification in order to draft ‘consensus documents’ that can be supported by all of the members of the UNGA.
But what of such knowledge? Who embodies and enlivens this knowledge? Who is imagined by the UNGA to dramatize, as Mussawir (drawing on Deleuze) puts it, those newly crafted subjectivities? Governments dramatize themselves: diplomats dramatize a new found generosity; technical experts within governments dramatize the tension arising out of such generosity; and lawyers and enforcers draw back on representations in which migrants are perceived to breach the border and demand conformity to the sovereign prerogative. Other ministries, along with many UN agencies and NGOs draw on newly intelligible expressions framed in development and Human Rights terms and push for a narrative in which migrants have skills and contribute to societies across territorial boundaries. Different countries, depending on how they are positioned within the International Community and geopolitically, push for different narratives. In such a way governments dramatize themselves as generous, caring and facilitating international mobility constructively. It is an account—in Butler’s words—that accepts relationality but also expects to be heard and to position others to act, including migrants. It demands of migrants to be responsible; that is, to act legally, as narrowly defined and enacted by these actors through the frames of possible legal behaviour they set.
The GCM then also dramatizes other legal persons who are imposed on to take responsibility. The migrant is dramatized as an active juridico-political partner who understands and conforms to laws; not quite a citizen, because the migrant human still needs to fit into the broader narratives of territorial sovereignty with its ascriptions of belonging, but a rational actor nonetheless with legal accountabilities. The migrant is further dramatized as an active, rational actor worthy of acknowledgement and capable of contributing to sustainable development. A figure who is law-abiding, self-managing with a strong relationship to circumscribed communities into which he gives through economic activity and she by providing leadership politically and socially. Yet, the migrant human is not quite autonomous, as the privileged citizen-subject is imagined, and thus his or her newly found humanity is conditional and thus precarious. What this means is that the migrant human is always measured, based on stringently, yet abstractly, defined criteria of contribution in order to determine his and her responsibility and thus his and her legality.
To conclude, we ask ‘is this fair?’ Of course it is, if one accepts as unproblematic the sovereign prerogative and its underlying assumptions that people have a fixed place and happy allegiances to a particular state. However, the decisions made about issues, ideas and framings that configure the GCM and thus indicate action to be taken at local level are just that: they frame what is intelligible and what is not. A migrant is not a complete aberration anymore since living outside of one’s country of citizenship is more easily intelligible and justifiable, given the re-framed approach to international mobility. However, the migrant is still very much fixed into rather narrowly defined places (the home and the host societies) and functions (contributing to sustainable development in both of the identified places).
What is more is that subjectivities not dramatized but allocated a role in the GCM, such as cities or employers or trade unionists, are to engage in translating the abstracted knowledge into local practices. Responsibility then is about contribution, it is abstracted and prospective, it is legal and moral, and it is directed at individuals and the community. In this way, responsibility is not, however, directed at anyone in particular anymore. There are many stakeholders involved who may or may not be imposed upon with the exception of the migrant human; the responsible migrant is always in the position of standing answerable.
A parallel process, also based on the 2016 New York declaration, stipulates for government to develop a GCM on Refugees as well.
See Sect. 2.
Draft Revision 2 para 43/paragraph 44 in drafts Revision 3 and the final draft.
Drawing on an approach to concept analysis, accepting the premise that concepts act on flows of everyday thought and, as such, are about ‘… the creation of precarious and unstable bridges between the empirical world and its presentation in thought.’
Drawing loosely on Mussawir’s Deleuzian-inspired methodology.
There is no clear attributable authorship to the GCM, drafts were substantially altered by governments of the UN General Assembly (UNGA) as they engaged in negotiations over the document.
The basic rule for interpretation of legal instruments is found in the Vienna Convention on Law of Treaties. Article 31(2) and (3) defines that treaties must be interpreted in line with subsequent agreements or agreements made in connection with the treaty; this includes relevant soft law agreements.
See for a discussion about security in the context of border control which is not undermined by the changed framing of migration governance.
As outlined in the UN’s 2030 Agenda for Sustainable Development (2015).
https://refugeesmigrants.un.org/intergovernmental-negotiations italics in original. Note that all of the available Draft versions can be found on this website.
Note that the language of responsibility had been replaced in intermediary drafts by obligation, possibly indicating a clearer orientation towards legalism, but by Draft Revision 3 and the Final Draft, the paragraphs refers to responsibility again.
By International Community, we here refer to the system of International Organizations, comprising mainly but not exclusively the United Nations and its agencies, governments engaging with these institutions and other actors involved.
Jurisdiction is commonly understood through the prescriptive model, when the ability to exercise laws is exhibited by the State over its territory and over its nationals. Jurisdiction can also, less commonly, be exhibited through the ‘enforcement’, ‘adjudicatory’, and ‘functional’ models.
See arguments in Catan and others v. Moldova and Russia, App. Nos. 43370/04, 8252/05 and 18454/06, ECrtHR; Chiragov and Others v. Armenia, Application no. 13216/05, Council of Europe: European Court of Human Rights, 16 June 2015.
See the trends of the ECrtHR in: Al-Skeini and others v. the United Kingdom, European Court of Human Rights, Grand Chamber, Application no. 55721/07. Jaloud v. the Netherlands, European Court of Human Rights, Grand Chamber, Application no. 47708/08, Judgment, Strasbourg, 20 November 2014.
A number of cases have discussed if territoriality negates jurisdiction; see Al-Skeini and Others v. United Kingdom, Application no. 55721/07, Council of Europe: European Court of Human Rights, 7 July 2011.
Revision 3 and Final Draft offer essentially the same language as found in Revision 2.
We consciously introduce these terms here, as the section unfolds it will become clear how the ability to become illegal is established.
In Revision 3 and the Final Draft the relevant content—which has not substantially changed—is found in para 19(d).
The International Dialogue on Migration is the main forum for IOM to discuss migration policy with its member and observer states and other stakeholders as instituted by IOM’s Constitution.
Akehurst, Michael. 1972–1973. Jurisdiction in International Law. British Yearbook of International Law 46: 146.
Akehurst, Michael. 1974–1975. Custom as a source of International Law. British Yearbook of International Law 47: 53.
Allen, Stephen. 2015. International law. Harlow: Pearson.
Arendt, Hannah. 2003. Responsibility and judgment, ed. Jerome Kohn. New York: Schocken Books.
Baumgaertel, Moritz. 2018. High risk, high reward: Taking the question of Italy’s involvement in Libyan ‘pullback’ policies to the European Court of Human Rights. European Journal of International Law: EJIL Talk! 14 May. https://www.ejiltalk.org/high-risk-high-reward-taking-the-question-of-italys-involvement-in-libyan-pullback-policies-to-the-european-court-of-human-rights/. Accessed 19 March 2020.
Besson, Samantha. 2017. Sovereignty, international law and democracy. European Journal of International Law 22: 373.
Boyle, Alan, and Christine Chinkin. 2007. The making of international law. Oxford: Oxford University Press.
Butler, Judith. 2005. Giving an account of oneself. New York: Fordham University Press.
Butler, Judith, and Athena Athanasiou. 2013. Dispossession: The performative in the political. Cambridge: Polity Press.
Clarke, John. 2005. New Labour’s citizens: Activated, empowered, responsibilized, abandoned? Critical Social Policy 25 (4): 447–463.
Condorelli, Luigi, and Claus Kress. 2010. The rules of attribution: General considerations. In The law of international responsibility, ed. James Crawford, Alain Pellet, Kate Parlett, and Simon Olleson, 221–237. Oxford: Oxford University Press.
Connolly, William E. 2002. Identity, difference: Democratic negotiations of political paradox. Minneapolis: University of Minnesota Press.
Crawford, James. 2002. The International Law Commission’s articles on state responsibility—Introduction, text and commentaries. Cambridge: Cambridge University Press.
Crawford, James. 2013. State responsibility: The general part. Cambridge: Cambridge University Press.
Crawford, James, and Simon Olleson. 2010. The nature and forms of international responsibility. In International law, ed. Malcolm D. Evans, 441–471. Oxford: Oxford University Press.
Crépeau, François. 2019. Towards a mobile and diverse world: ‘Facilitating mobility’ as a central objective of the Global Compact on Migration. International Journal of Refugee Law 30: 650.
Deleuze, Gilles. 2004. Difference and repitition. London: Continuum.
Deleuze, Gilles, and Felix Guattari. 1987. A thousand plateaus. Minneapolis: University of Minnesota Press.
Deleuze, Gilles, and Felix Guattari. 1994. What is philosophy?. New York: Columbia University Press.
den Heijer, Maarten, and Rick Lawson. 2012. Extraterritorial human rights and the concept of ‘jurisdiction’. In Global justice, state duties: The extraterritorial scope of economic, social and cultural rights in international law, ed. Maarten den Heijer, Rick Lawson, Wouter Vandenhole, Martin Scheinin, Malcolm Langford, and Willem van Genugten, 153–191. Cambridge: Cambridge University Press.
Feinberg, Joel. 1968. Collective responsibility. The Journal of Philosophy 65 (21): 674–688.
French, Peter A. 1984. Collective and corporate responsibility. New York: Columbia University Press.
Fry, J.D. 2014. Attribution of responsibility. In Principles of shared responsibility in international law: An appraisal of the state of the art, ed. André Nollkaemper and Ilias Plakokefalos, 98–133. Cambridge: Cambridge University Press.
Gabay, Clive, and Suzan Ilcan. 2017. Leaving no-one behind? The politics of destination in the 2030 Sustainable Development Goals. Globalizations 14 (3): 337–342.
Gammeltoft-Hansen, Thomas, John Cerone, and Stephanie Lagoutte. 2016. Tracing the roles of soft law in human rights. In The roles of soft law in human rights, ed. Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone, 1–15. Oxford: Oxford University Press.
Gammeltoft-Hansen, Thomas, and Jens Vedsted-Hansen. 2017. Human rights and the dark side of globalisation: Transnational law enforcement and migration control. London: Routledge.
Gammeltoft-Hansen, Thomas, Elspeth Guild, Violeta Moreno-Lax, Marion Panizzon, and Isobel Roele. 2017. What is a Compact? Migrants’ rights and state responsibilities regarding the design of the UN GCM for Safe, Orderly and Regular Migration. Roaul Wallenberg Institute of Human Rights and Humanitarian Law.
Gane, Nicholas. 2009. Concepts and the ‘New’ Empiricism. European Journal of Social Theory 12 (1): 83–97.
Giddens, Anthony. 2010. The rise and fall of New Labour. New Perspectives Quarterly 27: 32–37.
Graham, Keith. 2000. Collective responsibility. In Moral responsibility and ontology, ed. A. Van den Beld, 49–61. Dordrecht: Springer.
Guild, Elspeth, and Stefanie Grant. 2017. Migration governance in the UN: What is the GCM and what does it mean? Queen Mary University of London, School of Law Legal Studies Research Paper No. 252.
Guild, Elspeth, and R. Weiland. 2020. The UN Global Compact for Safe, Orderly and Regular Migration: What does it mean in International Law? Global Community: Yearbook of International Law and Jurisprudence 10(1). https://qmro.qmul.ac.uk/xmlui/handle/123456789/61733. Accessed 19 March 2020.
Jackson, Miles. 2015. Complicity in international law. Oxford: Oxford University Press.
Jackson, Miles. 2016. Freeing Soering: The ECHR, state complicity in torture and jurisdiction. European Journal of International Law 27 (3): 817–830.
Jonas, Hans. 1984. The imperative of responsibility: In search of an ethics for the technological age. Chicago: University of Chicago Press.
Kapur, Devesh. 2007. The Janus face of diasporas. In Diasporas and development, ed. Barbara J. Merz, Lincoln Chen, and Peter Geithner, 89–118. London: Harvard University Press.
Kelty, Christopher M. 2008. Responsibility: McKeon and Ricoeur. Anthropology of the Contemporary Research Collaboratory (ARC) Working paper No 12. May. https://evols.library.manoa.hawaii.edu/bitstream/10524/1625/workingpaperno12.pdf. Accessed 19 March 2020.
Kim, Seunghwan. 2017. Non-refoulement and extraterritorial jurisdiction: State sovereignty and migration controls at sea in the European context. Leiden Journal of International Law. 30 (1): 49–70.
Levinas, Emmanuel. 1981. Otherwise than being, or beyond essence. The Hague: Martinus Nijhoff.
Levinas, Emmanuel. 1990. Difficult freedom: Essays on Judaism, trans. Sean Hand. Baltimore: Johns Hopkins University Press.
Li, Tania Murray. 2007. The will to improve: Governmentality, development, and the practice of politics. Durham: Duke University Press.
Lister, Ruth. 2011. The age of responsibility: Social policy and citizenship in the early 21st century. In Social Policy Review 23: Analysis and Debate in Social Policy, ed. Chris Holden, Majella Kilkey, and Gabia Ramia, 63–84. Bristol: Policy Press at the University of Bristol.
Low, Choo Chin. 2017. Malaysian diaspora philanthropy: Transnational activism, mobilization and resistance. Diaspora Studies 10 (2): 152–174.
Markard, Nora. 2016. The rights to leave by sea: Legal limits on EU migration control by third countries. The European Journal of International Law 27 (3): 591–616.
McKeon, Richard. 1957. The development and the significance of the concept of responsibility. Revisionue Internationale de Philosophie 11 (39): 3–32.
Milanovic, Marko. 2011. Extraterritorial application of human rights treaties: Law, principles, and policy. Oxford: Oxford University Press.
Milanovic, Marko. 2018. Jurisdiction and responsibility: Trends in the jurisprudence of the Strasbourg Court. In The European Convention on Human Rights and General International Law, ed. I. Motoc and A. van Aaken. Oxford: Oxford University Press.
Mill, John Stuart. 1966. On liberty. In A selection of his works, ed. J.M. Robson, 1–147. London: Palgrave.
Mussawir, Edward. 2011. Jurisdiction in Deleuze: The Expression and representation of law. Oxon: Routledge.
Nancy, Jean-Luc. 2003. A finite thinking. Palo Alto: Stanford University Press.
Nanopoulos, Eva, Elspeth Guild, and Katharine Weatherhead. 2018. Securitisation of borders and the UN’s GCM on Safe, Orderly and Regular Migration. Queen Mary School of Law Legal Studies Research Paper 270.
Öberg, Marko D. 2005. The legal effects of Resolutions of the UN Security Council and General Assembly in the jurisprudence of the ICJ. European Journal of International Law 16: 879.
Oelgemöller, Christina. 2017a. The illegal, the missing: An evaluation of conceptual inventions. Millennium: Journal of International Studies 46 (1): 24–40.
Oelgemöller, Christina. 2017b. The evolution of migration management in the global north. Interventions Series. Oxon: Routledge.
Pellerin, Hélène, and Beverley Mullings. 2013. The ‘Diaspora option’, migration and the changing political economy of development. Review of International Political Economy 20 (1): 89–120.
Ricoeur, Paul. 2000. The concept of responsibility: An essay in semantic analysis. In The just, ed. D. Pellauer, 11–35. Chicago: University of Chicago Press.
Roche, Maurice. 1992. Rethinking citizenship. Cambridge: Polity.
Rooney, Jane. 2015. The relationship between jurisdiction and attribution after Jaloud v. Netherlands. Netherlands International Law Review 62: 407.
Ryngaert, Cedric. 2015. The concept of jurisdiction in international law. In Research handbook on jurisdiction and immunities in international law, ed. A. Orakhelashvili, 50–76. Cheltenham: Edward Elgar Publishing.
Scheel, Stephan, and Vicki Squire. 2014. Forced Migrants as Illegal Migrants. In The Oxford handbook of refugee and forced migration studies, ed. E. Fiddian-Qasmiyeh, G. Loescher, K. Long, and N. Sigona, 188–199. Oxford: Oxford University Press.
Sen, Amartia. 1999. Development as freedom. Oxford: Oxford University Press.
Sengupta, Arjun. 2000. Realizing the right to development. Development and Change 31: 553–578.
Shklar, Judith N. 1990. The faces of injustice. New Haven: Yale University Press.
Sinatti, Giulia, and Cindy Horst. 2015. Migrants as agents of development: Diaspora engagement discourse and practice in Europe. Ethnicities 15 (1): 134–152.
Solomon, Michele Klein, and Suzanne Sheldon. 2019. The Global Compact for Migration: From the sustainable development goals to a comprehensive agreement on safe, orderly and regular migration. International Journal of Refugee Law 30: 584.
Suliman, Samid. 2017. Migration and development after 2015. Globalizations 14 (3): 415–431.
Veitch, Scott. 2007. Law and irresponsibility: On the legitimation of human suffering. New York: Routledge.
Waldron, Jeremy. 2017. Are sovereigns entitled to the benefit of the International Rule of Law? European Journal of International Law 22: 315.
Warner, Daniel. 1991. An ethic of responsibility in international relations. London: Lynne Rienner Publishers.
Weber, Heloise. 2017. Politics of ‘Leaving No One Behind’: Contesting the 2030 Sustainable Development Goals Agenda. Globalizations 14 (3): 399–414.
Werbner, Pnina. 2002. The place which is diaspora: Citizenship, religion and gender in the making of chaordic transnationalism. Journal of Ethnic and Migration Studies 28 (1): 119–133.
Wilde, Ralph. 2012. The extraterritorial application of international human rights law on civil and political rights. In Routledge handbook of international human rights law, ed. S. Sheeran and N. Rodley, 635–661. London: Routledge.
Young, Iris Marion. 2011. Responsibility for justice. Oxford: Oxford University Press.
Statutes, Treaties and Commentaries
ARSIWA. 2001. International Law Commission. November. Draft Articles on Responsibility of States for Internationally Wrongful Acts. Supplement No. 10 (A/56/10), chp.IV.E.1.
UN General Assembly. 4 December 1986. Declaration on the Right to Development: Resolution/adopted by the General Assembly, A/RES/41/128.
UN General Assembly. September 2015. 2030 Agenda for Sustainable Development. http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E. Accessed 14 March 2018.
UN General Assembly (New York Declaration). September 2016. The New York Declaration for Refugees and Migrants. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/1. Accessed 14 March 2018.
UN General Assembly. April 2017. Modalities for the intergovernmental negotiations of the GCM for safe, orderly and regular migration, UN Doc. A/Res/71/280. https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_71_280.pdf. Accessed 19 March 2020.
UN General Assembly (Zero Draft). 5 February 2018. Zero Draft of the GCM for Safe, Orderly and Regular Migration. https://refugeesmigrants.un.org/intergovernmental-negotiations. Accessed 14 March 2018.
UN General Assembly. 2018a. Revision 1 of the Global Compact on Migration. https://refugeesmigrants.un.org/sites/default/files/180326_draft_rev1_final.pdf.
UN General Assembly. 2018b. Revision 2 of the Global Compact on Migration. https://refugeesmigrants.un.org/sites/default/files/180528_draft_rev_2_final_1.pdf.
UN General Assembly. 2018c. Revision 3 of the Global Compact on Migration. https://refugeesmigrants.un.org/sites/default/files/180629_draft_rev_3_final_0.pdf.
UN General Assembly. 2018d. Final Draft of the Global Compact on Migration. https://refugeesmigrants.un.org/sites/default/files/180711_final_draft_0.pdf.
We are grateful to David Cantor, Refugee Law Initiative, School of Advanced Studies, University of London for his valuable comments on an earlier draft. We are also grateful to the editor of Law and Critique and three anonymous reviewers for their valuable comments. All remaining faults are ours to account for.
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
About this article
Cite this article
Oelgemöller, C., Allinson, K. The Responsible Migrant, Reading the Global Compact on Migration. Law Critique 31, 183–207 (2020). https://doi.org/10.1007/s10978-020-09265-9