The Trump administration has decided to withdraw from participation in the United Nations Global Compact on Migration, representing another significant departure from the global governance policies of the Obama administration. In September 2016, during the waning days of the Obama administration, the United States had joined with the other member states of the UN to adopt a “non-binding “political declaration, the New York Declaration for Refugees and Migrants. They agreed to undertake negotiations towards a consensus on international norms by September 2018 to help guide member states’ immigration policies. U.S. ambassador to the United Nations Nikki Haley said in a recent statement, announcing U.S. withdrawal from participation in this globalist compact, that “our decisions on immigration policies must always be made by Americans and Americans alone. The global approach in the New York Declaration is simply not compatible with US sovereignty.”
The New York Declaration for Refugees and Migrants, Ambassador Haley said, “contains numerous provisions that are inconsistent with U.S. immigration and refugee policies and the Trump Administration’s immigration principles.” The Declaration says, for example, that all migrants are “rights holders,” which are “universal.” It seeks a commitment to “strengthening global governance of migration.” It calls for applying international law to a state’s implementation of its own border control procedures. It calls for migration policies that promote “family reunification” – a euphemism for chain migration. It stipulates that migrant children should receive “education within a few months of arrival” with budgetary prioritization to facilitate this, all without any consideration of cost, language issues or the impact of such prioritization on the funding of the educational needs of the host country’s own citizens.
Predictably, UN officials and open border advocates have protested the Trump administration’s decision “to disengage from the process leading to the global compact for safe, orderly and regular migration,” as UN General Assembly President Miroslav Lajcak put it in a statement issued by his office. They claimed that nothing in the New York Declaration or in an ultimate global compact would be legally binding. National sovereignty would be respected, they promised. If that is so, however, what did Mr. Lajcak mean when, in that same statement, he talked about a commitment to “strengthening global governance of migration,” which is also the language used in the New York Declaration itself?
How would “global governance” work if there is technically no legally binding treaty? It would work through the insidious process of using the United Nations to forge an “international consensus” among representatives of the UN member states around broadly worded “international norms.” Such norms would purport to create, or broaden the scope of, a “universal” right, declared as such by all or a significant majority of the member states. As interpretations of norms acknowledging such rights are repeated in international bodies and incorporated into the laws or judicial rulings of more and more member states, they can then become a part of what international lawyers refer to as legally binding “customary international law,” whether there is a formal treaty or not. In the words of a prominent legal treatise (Restatement of the Foreign Relations Law of the United States), customary international law results “from a general and consistent practice of states that they follow from a sense of legal obligation.”
The UN can set in motion a process under which customary international law is created. As the Restatement treatise notes, the “United Nations General Assembly in particular has adopted resolutions, declarations, and other statements of principles that in some circumstances contribute to the process of making customary law.” A United Nations Global Compact on Migration may well fall into this category. Only if a member state persistently objects to a particular requirement of customary international law, would it generally be exempt from it. That is why it was imperative for President Trump to make clear when he did that the United States would not participate in the global migration compact and that it considers itself to be bound legally only by its own immigration laws.