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A PROPOSAL FOR A MULTILATERAL FRAMEWORK FOR SOME ASPECTS OF INTERNATIONAL MIGRATION
MANILA, THE PHILIPPINES26-28 October 2011
Hans van LoonSecretary General
Hague Conference on Private International Law
4th Asia Pacific Regional Conference
A gap in international governance regarding migration
◦ UN International Convention of 18 December 1990 on the Protection of the Rights of All Migrant Workers and Members of their Families (45 States party) binds primarily countries of origin of migrants. Major migrant-receiving countries have not ratified the Convention.
◦ No support to reinforce UNHCR, ILO, IOM or other international organisations in the field.
◦ Global Forum on Migration and other fora certainly useful, but people may ask “where is the beef”? (Peter Sullivan)
The Hague Conference approach: Developping multilateral frameworks for cross-border
cooperation on international human relationships
– their potential use in relation to circular and other forms of temporary migration
Existing Hague Conventions as a model
Genesis of the “Hague model” of direct treaty based administrative and judicial cooperation, illustrated by -
Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption Convention
Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance
Example N° 1: Intercountry Adoption Convention
◦ The 1993 Hague Intercountry Adoption Convention:
• Establishes a framework for direct transnational administrative and judicial cooperation between States
• Both State of origin and receiving State must designate an focal point - Central Authority (CA), with internal and external responsibilities
• Each adoption requires joint approval of the Central Authorities of both the State of origin and receiving State or delegated bodies
• Intermediary private agencies subject to certain criteria, licensing and supervision
• CAs form permanent global network - Regular meetings at The Hague of CAs to review operation of Convention
Example N° 2: 2007 Maintenance Convention
• Establishes a framework for direct transnational administrative and judicial cooperation between States
• Both State of origin and receiving State must designate a CA
• Applications may be made to CA of State of creditor’s residence for assistance to recover maintenance
• Contracting States must promote use of “most cost-effective and efficient methods available to transfer funds”, and “shall accord the highest priority to …such transfer”. Ongoing work on an IT solution for the remittance of child support payments
• Like the 1993 Intercountry Adoption Convention, CAs form permanent global network w/ regular meetings at The Hague to review operation of Convention
How can these two Conventions serve as a model for addressing some aspects of international
migration?
◦ A specific approach to create global legal frameworks for cross-border human activities:
• A careful negotiation procedure, prepared by solid scientific research with the participation of a core group of States, international organizations and non-governmental experts from the field;
• An agreed set of principles and rules on the co-ordination of the interplay of different legal systems;
• The requirement to designate a focal point (Central Authority) with overall responsibility both internally and internationally – in relation to its foreign counterparts - for implementation; and as a result,
• The establishment of a form of institutionalized direct international communication, sharing of information and cooperation coupled with internal coordination.
• Rather than have a number of bilateral agreements independently negotiated with each state, the Hague Conference strives for the development of a multilateral approach.
Hague Conference & Migration
Bilateral Agreements
◦ Several bilateral agreements already in place to address temporary/labor migration provide for:
• The exchange of information on the characteristics of employment
• Information on potentially available circular employees
• Preparation of the migrants prior to their departure from the country of origin
• Cooperation between States with a view to migrants’ return to, and their reintegration into the economy of the country of origin
◦ Example: Spain has such bilateral agreements in place with many Latin American countries (e.g., Ecuador, Colombia, Dominican Republic)
Bilateral Agreements
◦ Many of these bilateral agreements provide for the equivalent of a “Central Authority” in charge of the implementation of the agreement.
• Example: Migration Agreement between Gambia and Spain
◦ More commonly, there are “mixed committees”, i.e., entities composed of an equal number of representatives of each State party.
• Example: Agreement between Japan and Brazil concerning migration and settlement; Mali-France Agreement concerning migration.
◦ In addition to circular labor migration, several agreements deal with the temporary movement of migrants for educational purposes.
• Example: Agreement between France and Mauritania on the movement and stay of persons
A New Legal Framework
◦ Drawing on other Hague Conventions and existing bilateral agreements, the idea would be to:
• implement temporary or circular migration programs agreed to between States of origin and receiving countries;
• establish and monitor a system to regulate, license and monitor intermediaries involved in facilitating international migration; and
• facilitate the easy, safe and cheap transfer of remittances sent home by international migrants; and to provide
• machinery to monitor the operation of the framework, including through periodic meetings.
The Proposal
Cooperation in the implementation of a temporary or circular migration program
• Countries of origin should ensure: • that migrants will be well documented • will be free to leave the country • be assisted in keeping contact with their families and
have the right to return and re-integrate there.
• Countries of destination should provide: • full information to the migrants, prior to their departure
from the country of origin, about their rights and duties and employment conditions, about labor market opportunities, languages and skills training;
• the necessary visas, provide work permits, monitor the implementation of work and residence permits, etc.
The Proposal
o “Central Authorities” in each country would co-ordinate implementation internally, and communicate and cooperate with counterparts in the other treaty countries in order to ensure the international implementation of the programme.
o Periodic meetings of relevant government officials and other experts to continually improve operation of the framework, and mutually learn from their experiences.
Designation of Central Authorities
The Proposal
◦ Cooperation on licensing and regulation of intermediaries
• Licensing and supervising agents could be the responsibility of the government bodies designated under the treaty framework.
• Countries would agree on certain minimum requirements as to expertise, experience, financial structure, etc. to which any agencies involved in the recruitment of international migrants should be subject and establish a system of licensing on that basis.
The Proposal
◦ Cooperation with regard to facilitating international remittances
• Introduce en ensure competition between agencies
• Make sure that families, in particular in remote areas, have access to financial services and receive their money.
• Assistance may be given to counsel migrants, recipients and communities in countries of origin to make effective use of remittances.
Remittances
◦ Obstacles to remittances include: • Unavailability of accessible formal financial channels
• High banking fees
• Unfair exchange rates
◦ This can lead to the use of informal or clandestine alternatives
• May be intertwined with money laundering
• Imposes more risks on persons involved
• Yields fewer financial benefits to countries and people
◦ Better regulation and international coordination would increase both micro and macro benefits of international remittances.
Remittances
◦ The Remittance Prices Worldwide database collected by the World Bank Payment Systems Group shows that, as of the first quarter of 2009, the cost of remittances averaged close to 10 percent of the amount sent.
◦ For some smaller receiving countries, remittances comprise of 20-30% of GDP.
The Proposal
◦ In Short:
• This application of the “Hague model” would be strictly limited to temporary/circular legal economic migrants (perhaps including migration for study purposes). It does not deal with integration problems nor with asylum or refugee issues.
• States would remain completely free to decide whom to admit, for how long and for what purpose.
• The advantage of the proposed multilateral approach would be that it would enable global agreement on standards and procedures and an ongoing dialogue on that basis, with potential spin-offs in other areas.
