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item0072A 1020, 1021 1020 21 June 2004 DOMUS Quantum, Domicile and Asylum
The following document outlines my thinking on the subject. I have tried to cast my ideas within the "virtual" framework of a briefing for the UN Conference Round that would be the most appropriate vehicle for change... 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 should be permitted to enter and to remain upon its national territory. A wide diversity of national legal 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, Domicle, and Asylum. 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 MNSR for each participating State. The treaty commitment of each State would be to accommodate not less that its MNSR "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 formulate 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 MNSR, 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. Part II Quantum When it comes to the public immigration debate , quantities matter. Everyone has some mental image or other of the immigration process (often woefully inaccurate) of the number of "immigrants" settled within their immediate communal environment, of the annual rate of immigration. How many are there, overall? How many have arrived this year? Much of the prejudicial terminology of the debate relates to quantum - newcomers arrive in hordes, immigrants swamp host communities, neighbourhoods are inundated by immigrants. Many of these images are wholly inaccurate, and bear no relation to the official statistics. Yet the statistics are rarely accessible, at the right time and in relevant form, to moderate the intensity of the debate. The debate therefore continues on an uninformed basis, feeding xenophobic fantasies.A primary objective of the Migration Convention should be to open the whole subject up to informed public debate. It is suggested that Delegates should seek agreement on these principlesdomiciled within the host country.
 That Settlement Provision should be calculated
by applying the MNSR
percentage to the total national population for three
years earlier. This would allow for the resolution of statistical
inaccuracies. A common aggravating factor in the public
immigration debate is
scepticism about the accuracy of "official statistics", and everything possible should be
done to remove these doubts from the public debate.
Given such a framework, both politicians and public in each Convention State would know precisely what their Convention obligations were for each coming year. They would also have the assurance of knowing that every other Convention State had accepted precisely the same requirement, proportionate to its size. Internal distribution No attempt should be made to determine any question of the internal distribution of new residents, or of the management of non-residents. Such arrangements vary greatly from country to country, and member States should remain entirely free to make their own arrangements for internal distribution, operating within the constraints of their own laws.Part III Domicile A principal objective would be to agree new ways of encompassing the diversity of status which has proliferated in the last 150 years. Before the 1840s, migration was a very limited phenomenon, with only the wealthy able to travel over distance at all. The advent of steam-driven ships and trains generated, from the 1840s onwards, an explosion of travel, both as between neighbouring countries (e.g. within Europe) and over much longer distances. At the same time, the emergence of a new range of nation-states developed concepts of citizenship, of membership of national communities, giving practical political expression to earlier general notions of cultural and ethnic identity. This has produced an impenetrable interlocking thicket of national regulations, often threatening the personal security of migrants. The Convention should seek to create far greater transparency, both for all migrants and for those dealing with them.No Convention could possibly integrate the hundreds of different legal codes that now define concepts of citizenship, nationality, and rights of residence. And no attempt should be made to do so. It is suggested that, as an alternative, Delegates should seek agreement upon a new simplified schedule of status, to which certain Convention rights would adhere, leaving it to member States to ensure by internal action that any inconsistencies between their national laws and the Convention were removed.Two primary status categories are suggested.
Other regulatory principles should be included within the scope of the Convention. For example, the enjoyment of a right of abode would not necessarily be equated with the grant of citizenship, even though a member State could choose to make it so, and countries with welcoming traditions (like the United States) might well opt for that simple solution. For some States "citizenship" might involve the grant of additional rights or benefits, and member States would remain free to define citizenship as they wished.A member State should be entitled, it is suggested, to withdraw the right of abode from any person who was absent from the country for a continuous period of more than five years. No Convention State could, however, remove the right of abode if the effect would be to leave the person without any right of abode anywhere else. That principle already operates under UN Convention for the withdrawal of citizenship (i.e. regulating "Stateless Persons"), and a similar principle would apply here. The whole objective would be to bring greater personal certainty to those moving around the globe, and arranging their lives accordingly.Part IV ASYLUM Within many nation States, the management of the asylum process has proved politically problematical. It is proposed that these decisions should be removed entirely from national jurisdictions. A new UN Migration Convention should transfer to the United Nations the responsibility for determining the legal status of asylum-seekers as they leave their countries of origin. That is what happened with the Afghan and Turkish asylum-seekers in 2001 who were refused entry to Australia. The UN High Commission for Refugees was responsible for the entire adjudication process (which took place on the Pacific Island of Nauru), and it was entirely satisfactory [ see New Migration System ] The key asylum question was addressed by the UN Agency, namely -
With the question of asylum entitlement resolved, the UN should be authorised to assign successful applicants to an appropriate host state, for reception within its Settlement Provision. The UN might also negotiate further admissions, on a consensual basis. This process would head off resentment, within any single country, that it was "bearing more than its fair share" of the burden of accommodating asylum-seekers. Within the framework of these three principles, it is suggested that all the members of the United Nations could be persuaded to sign up to a new Migration Convention. For the individual migrant, there would be two advantages
For the Convention State, there would be three advantages -
These together make a powerful case for proceeding with the early negotiation of a new UN Migration Convention.
1021 --------- 2004 Moh the Newcastle E What do you think? Drop me a line
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