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domus

Quantum, Domicile and Asylum

Briefing for Delegates to the notional first Conference to negotiate a UN Migration Convention
  • NB  Just by way of explanation - this is an imaginary process!  A number of you have asked when the negotiations are to begin...  Roger WE

Part I   Introduction  

Delegates are invited to consider and determine the framework of a multilateral Convention for the regulation of international migration.  While the proposed negotiations will be between member-states of the United Nations, and while ratification by 100 States including the Members of the Security Council will be necessary for the Convention to come into force, it will thereafter stand open for signature by non-Member States, at the discretion of the UN General Assembly.

Convention methodology   It is proposed that the Convention should establish an entirely new conceptual and legal framework, for the management of processes which have never before arisen on a global scale.  Each Member State would remain entirely free, as a matter of inherent national sovereignty, to determine which persons shall be permitted to enter and remain upon its national territory.  A wide diversity of national systems has arisen throughout the world, regulating citizenship, residents and visitors rights, expulsion, dual nationality, work permits, rights of abode; in some federal states there are even variations at provincial or internal-state level. 

Member States should continue to regulate all such matters.  The Convention Principles, with correlative Convention Rights, are conceived as running parallel with those national systems.  Once ratified however, each Member State would be under a treaty obligation to modify its national laws so as to be consistent with the provisions of this Convention.  For the determination of any dispute relating that process of harmonisation, it is envisaged that jurisdiction would be assigned to an appropriate international tribunal.

The Migration Convention is envisaged as operating on a fully reciprocal basis.  Every signatory State, complying with its own Convention obligations, would be entitled to rely upon reciprocal compliance by all other signatory States, and would be entitled to judicial enforcement, including both injunctive relief and the payment of financial compensation, in the event of breach.

On that footing, Delegates are asked to consider the following format.  It is suggested that agreement is required on three main organisation principles.

Quantum  Societies are characterised by differing degrees of social and cultural flexibility.  Some seem to retain certain rigidities over a long period of years, while others are far more open and responsive to shorter-term change.  It is suggested that agreement should nevertheless be sought on a common figure, a  Minimum National Settlement Rate (MNSR), referable to the prior population of each State.  This would be a common rate for all Convention States, giving to each State the assurance of international equivalence in this key aspect of migration management.  The rate should remain constant from year to year, but at the beginning of each year, there would be a Convention adjudication of, and publication of, the MNAR for each participating State.  The treaty commitment of each State would be to accommodate not less that its MNAR "quota" for that year.

Domicile Agreement should be sought on a new regulating status concept, which would operate alongside existing national status systems, albeit subject to gradual harmonisation by the elimination of inconsistencies.  This approach is necessary, because of the sheer conceptual diversity already in existence - different concepts of citizenship, of naturalisation, of visitor status, of passport entitlement, of residence rights, benefits entitlement.  It would be impossible for 200+ states to negotiate specific revisions of all those idiosyncratic legal provisions.  The Convention should therefore identify a new regulating principle, which could in due course be allowed to generate harmonisation in certain key respects.  It is suggested that the regulating concept should be a personal right of abode, drawing in particular upon international experience with the concept of domicile.

Asylum   The Convention would regulate all inter-state personal movement and settlement, whatever the purpose of the migration.  In the case of asylum-seekers, the Convention would uphold and regulate the long-standing public international law provisions, both in national law and international treaty, assuring asylum to those in fear of personal oppression.  It is suggested that the United Nations itself, by way of the UN High Commission for Refugees, should provide an international administrative and judicial service, determining all matters of asylum status, wherever and however rising.  The adjudication of all asylum applications would be made by an appropriate UN Agency, and the Agency would be responsible (a) for assigning successful applicants to the host country of their choice and (b) arranging for unsuccessful applicants to return to their home countries or move elsewhere.  There would be a presumption, under the express terms of the Convention, that each member State would accommodate asylum-seekers up to the limit of its MNAR, but no further; higher accommodation figures could of course be negotiated, between the UNHCR and any member State, and such negotiations might well include financial compensation; such negotiations are already a feature of UNHCR practice..

These three concepts would be the pillars of a new international Convention order, within the framework of which each member State would be free to make its own arrangements.

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