National Statement of the United States of America on the Adoption of the Global Compact for Safe, Orderly, and Regular Migration

December 7, 2018

FOR IMMEDIATE RELEASE

The United States did not participate in the negotiation of the Global Compact for Safe, Orderly, and Regular Migration (“the Compact”), objects to its adoption, and is not bound by any of the commitments or outcomes stemming from the Compact process or contained in the Compact itself. The Compact and the New York Declaration for Refugees and Migrants, which called for the development of the Compact and commits to “strengthening global governance” for international migration, contain goals and objectives that are inconsistent and incompatible with U.S. law, policy, and the interests of the American people.

The United States proclaims and reaffirms its belief that decisions about how to secure its borders, and whom to admit for legal residency or to grant citizenship, are among the most important sovereign decisions a State can make, and are not subject to negotiation, or review, in international instruments, or fora. The United States maintains the sovereign right to facilitate or restrict access to our territory, in accordance with our national laws and policies, subject to our existing international obligations.

We believe the Compact and the process that led to its adoption, including the New York Declaration, represent an effort by the United Nations to advance global governance at the expense of the sovereign right of States to manage their immigration systems in accordance with their national laws, policies, and interests. While the United States honors the contributions of the many immigrants who helped build our nation, we cannot support a “Compact” or process that imposes or has the potential to impose international guidelines, standards, expectations, or commitments that might constrain our ability to make decisions in the best interests of our nation and citizens.

The United States also is concerned that Compact supporters, recognizing the lack of widespread support for a legally-binding international migration convention, seek to use the Compact and its outcomes and objectives as a long-term means of building customary international law or so-called “soft law” in the area of migration. The United States is particularly concerned by the novel use of the term “compact” to describe the document. Unlike standard titles for international instruments, “compact” has no settled meaning in international law, but it implies legal obligation. Hence, the Compact is amenable to claims that its commitments are legal obligations or at least evidence of international consensus on universal legal principles. The United States objects to any such claims and holds that neither the Compact nor any commitments by States to implement its objectives create any legal obligations on UN Member States or create new rights or protections for foreign nationals as a matter of conventional or customary international law.

The United States is concerned the Compact fails to distinguish adequately between foreign nationals who have legal status in host countries and those who are unlawfully present. Strengthening control over borders is central to national security, economic prosperity, and the rule of law. The way we talk about crossing international borders should reflect the centrality of law, and the need for such movements to be in accordance with national laws. In the United States, foreign nationals who are not lawfully present are not “irregular” – they are illegal aliens violating the laws and immigration policies of our nation and are subject to prosecution and removal.

The United States also is concerned the Compact does not sufficiently address the large numbers of foreign nationals who reside illegally in many States. In many countries, citizens – including those who themselves immigrated from other countries – are concerned about this phenomenon, and it undercuts their faith in the ability of their governments to faithfully execute their laws. The presence of large numbers of illegal migrants thus undermines the rule of law. In democratic nations, where governments are responsive and accountable to the people, it also hurts the ability of States to consider implementing new forms of legal immigration.

The United States also is concerned that the Compact intentionally downplays the costs of immigration to destination countries by failing to account for legitimate concerns and debates related to national security; the loss of employment opportunities, especially for lower-skilled and more vulnerable citizens; declining social trust; and stresses on public services. As President Trump said in his September 2017 address to the General Assembly, “For receiving countries, the substantial costs of uncontrolled migration are borne overwhelmingly by low-income citizens whose concerns are often ignored by both media and government.”

In sum, the Compact strikes the wrong balance. Its pro-migration stance fails to recognize that well-managed, legal immigration must start and end with effective national controls over borders. It lists many desirable outcomes, but fails to acknowledge that the effective security of States’ borders must precede all other objectives. This undermines its credibility as an effective roadmap for addressing the migration challenges all States face.

In addition to our broad concerns regarding emerging attempts to “globalize” migration governance at the expense of State sovereignty, the United States has specific objections to Compact text and objectives that run contrary to U.S. law and policy, including, but not limited to the following:

Free Expression: Calls in the Compact to prevent all instances of intolerance against foreign nationals or to promote certain perspectives for media professionals in how they report on or characterize migrants raise concerns about respect for freedom of opinion and expression and media freedom, core tenets upon which the United States was founded. We are also concerned that this language in the Compact could be abused by repressive regimes that seek to limit speech unduly.

National Detention Standards: Many elements in Objective 13 of the Compact are inconsistent with U.S. law and policy, including language on “detention as a last resort,” alternatives to detention, and access to government-provided legal counsel while in detention for those who illegally enter the United States. Calls for eliminating or adjusting detention requirements for illegal immigrants run contrary to the U.S. interest in establishing a well-managed immigration process that promotes the rule of law.

Best Interest of the Child: The Compact makes reference to the “best interest of the child” (derived from Article 3 of the Convention on the Rights of the Child (CRC) to which the United States is not party) an idea that runs contrary to U.S. law and policy. At certain places, the Compact suggests that best interest of the child must always be “the” primary consideration, rather than “a” primary consideration. While the United States takes into account the best interests of the child, this is not always the primary consideration in the immigration context. It is the sovereign right of nations to determine how to detain minors humanely in the immigration context in accordance with national laws and policies, subject to their international obligations.

Undermining National Workers: Calls in the Compact for governments to provide legal accommodations that allow all temporary foreign workers to change jobs once in a country will affect the ability of governments to define and manage their labor needs effectively and prevent the displacement of national workers.

Promoting Unrealistic Access to Social Services: While the Compact calls for the delivery of differentiated levels of social services to nationals/legal immigrants and illegal immigrants, its language nonetheless sets the expectation that States must provide greater levels of service than they might consider appropriate to provide. All States provide and regulate access to social services in various ways and with various capacities, and the United States does not have international obligations pertaining to the provision of social services to aliens who are not refugees.

“Firewalls” Between Immigration Enforcement and Public Services: The Compact encourages the “firewalling” of service provision within governments to protect the privacy of aliens and to eliminate the potential that aliens will avoid services to which they are allegedly entitled out of fear of arrest or detention. The United States maintains the sovereign right, in accordance with our national laws and policy, to engage in information-sharing among relevant departments and levels of government to promote the steady enforcement of our laws.

Conflicts with International Instruments: The Compact’s references to a range of international instruments that many countries have not signed or ratified creates a false sense of implicit international support and recognition for such documents. For instance, the United States has not signed or ratified many of the instruments cited, including the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Rights of the Child, and several International Labor Organization (ILO) conventions (e.g., promoting decent work and labor migration).

Remittances: While we support the continued use of regulated and transparent channels for remittances, the Compact seeks to establish broad frameworks and regulatory processes to facilitate immigration-related remittances. Remittance policies are correctly addressed through other existing financial cooperation mechanisms (e.g., G-7/G-20, Financial Stability Board (FSB), and Financial Action Task Force (FATF)) to avoid contradicting existing national and international laws, standards, and practices or acting at cross-purposes with current work streams, including those that seek to prevent the transfer of illicit and terror-related funds.

Mischaracterization of “Rights”: The Compact mentions a “right to family life” and other rights to privacy and legal identity. We are concerned that the way these terms are used throughout the Compact creates false representations of the actual rights represented in relevant international human rights instruments. For instance:

  • Right to Family Life: There is no “right to family life” as such – only a right not to be “subject to arbitrary or unlawful interference with his … family.” (International Covenant on Civil and Political Rights (ICCPR) Art. 17).
  • Right to Privacy: There is no absolute “right to privacy” in international law. The ICCPR only protects against arbitrary or unlawful interference with privacy.
  • Right to a Legal Identity: There is no “right to a legal identity” as such. However, there is a “right to recognition everywhere as a person before the law,” “right to a nationality” as articulated in the Universal Declaration of Human Rights (UDHR Art. 15(1)) and an obligation under the ICCPR to register “every child…immediately after birth” (Art. 24(2) (regardless of nationality/immigration status).

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