Human Rights Dilemma of Migration Targets in the 2030 Agenda for Sustainable Development

WU Wenyang

Abstract: The 2030 Agenda for Sustainable Development explicitly and specifically includes migration in the global development agenda for the first time,and establishes relevant targets,including promoting regular migration and protecting the rights of migrant workers∙ These targets are significant achievements of the United Nations in promoting the topic “Migration and Development” and strengthening the human rights-based global migration governance∙However,there are many difficulties in achieving these targets,especially when the rights of regular and irregular migration are undermining national sovereignty and security,or are not in line with national development needs∙ With the continued spread of the COVID-19 pandemic,rising tensions among major powers,and the prevalence of populism and anti-foreigner sentiment in the West,the process of migration and development has been seriously influenced,and the divergent positions and conflicting interests of countries have pushed the migration targets further out of reach∙ However,in the long run,exploration in this area will help promote global economic recovery in the post-pandemic era and benefit all parties from the positive interactions of migration,development,and human rights∙

Keywords: 2030 Agenda for Sustainable Development ◆ global compact for safe ◆ orderly and regular migration ◆ irregular migration◆ migrant workers ◆ human rights-based approach

In the two decades before the onset of the COVID-19 pandemic,the number of international migrants had been rising and it reached 272 million in 2019,becoming a non-negligible part of sustainable development at the national,regional,and global levels.1. World Bank,Leveraging Economic Migration for Development: A Brief for the World Bank Board,World Bank Publications,2019,page xvi;International Organization for Migration,World Migration Report 2020,IOM Publications,2019,page 2.International migration has become a common phenomenon,and discussions on migration and development have become more frequent.Never the less,the stereotype that migration is a negative factor for development remains widespread,which is largely a result of earlier studies of migration.

From the late 1960s to the 1980s,negative theories about international migration were prevalent,and migration was seen as a product of poverty not conducive to development.2. Hein de Haas,“Migration and Development: A Theoretical Perspective”,44 International Migration Review 1(2010): 232-238.Although a significant portion of academic results have proven that migration can have a positive impact under the right conditions,the negative image of migration has long been retained.3. Ibid.,238-241;OECE and International Labor Organization,How Immigrants Contribute to Developing Countries’ Economies, OECD Publishing,2018,page 18.Moreover,because scholars in destination countries dominate studies on migration,migration is often simply portrayed as a burden on destination countries,while the human rights of migrants and the impact of international migration on countries of origin and transit are neglected.4. Ruben Puentes and others,“Towards an Assessment of Migration,Development and Human Rights Links:Conceptual Framework and New Strategic Indicators”,International Network on Migration and Development,2010,page 3,https://www.un.org/en/development/desa/population/migration/events/coordination/9/docs/assessmentofmigration.pdf.With the growing number of migrants over the past two decades,attitudes toward international migration had begun to change,at both the academic and policy levels.International migration is no longer seen solely as an obstacle to development,but is also being viewed as a solution to development dilemmas.5. Samid Suliman,“Migration and Development after 2015”,14 Globalizations 3 (2017): 417.Human rights are no longer an additional problem,but a central problem in the process of migration and development.6. OHCHR,“Migration and Development: A Human Rights Approach”,page 2,https://www2.ohchr.org/english/bodies/cmw/docs/HLMigration/MigrationDevelopmentHC%27spaper.pdf.

The United Nations’ promotion of the topic “Migration and Development” is a manifestation of this trend.In 2015,the United Nations General Assembly adopted theTransforming Our World: The 2030 Agenda for Sustainable Development(hereinafter referred to as “2030 Agenda for Sustainable Development”),which recognizes the contribution of migration to sustainable development,and explicitly includes migration within the global development goals.Based on this Agenda,theGlobal Compact for Safe,Orderly and Regular Migrationeven made a breakthrough by establishing a platform for international cooperation on the implementation of relevant targets.Both documents stressed the importance of human rights and were formulated based on the law of international human rights.Thus,it is clear that the issues of migration and human rights are important both in themselves and in the context of development because human rights should be respected regardless of the value of humans as labor force or participants in development.7. Office of the United Nations High Commissioner for Human Rights,“Improving Human Rights-Based Governance of International Migration”,December 2012,page 8.But,as populism and anti-foreigner sentiment have become more prevalent in the West and the COVID-19 pandemic continues ravaging the world,international migration has been hampered and hit as never before,which has led to disruptions in regular transnational migration,a sharp decline in global migrant remittances,and a further exacerbation of irregular migration,such as human trafficking and migrant smuggling.8. UNODC,“COVID-19 Measures Likely to Lead to an Increase in Migrant Smuggling and Human Trafficking in Longer Term,UNODC Report Finds”,May 14,2020,https://www.unodc.org/unodc/frontpage/2020/May/covid-19-measures-likely-to-lead-to-an-increase-in-migrant-smuggling-and-human-trafficking-in-longer-termunodc-report-finds.html;“World Bank Predicts Sharpest Decline of Remittances in Recent History”,World Bank,April 22,2020,https://www.shihang.org/zh/news/press-release/2020/04/22/world-bank-predicts-sharpest-decline-of-remittances-in-recent-history.Meanwhile,the impact of the pandemic on the economy and employment of countries has also made the situation worse for migrants,putting them at risk of losing both their sources of income and regular migration status.Faced with the dual challenges of the pandemic and development,the consensus and goals of the international community on the human rights of migrants have been in jeopardy.

This paper attempts to analyze the human rights dilemma in the migration targets contained in the2030 Agenda for Sustainable Developmentfrom the perspective of migration and development,especially the avoidance and exclusion of human rights issues of those who are smuggled,victims of human trafficking and irregular migrant workers,etc.in the governance of irregular migration in countries.9. The term “migrants” in this paper refers to people who migrate across borders excluding refugees,including migrant workers,victims of transnational human trafficking,international students,etc.See International Organization for Migration,“Key Migration Terms”,https://www.iom.int/key-migration-terms.This article uses a broad understanding of migration and does not make a distinction between the reasons for migration,such as holidays,visits,medical treatment,and the length of migration.These dilemmas show that although development can bring the international community together on some migration issues,it is difficult to attract countries to protect the vulnerable groups of migrants that are perceived to have less “development value.” Only by integrating migration,development,and human rights can it be ensured that the process of migration and development will not get off the human rights track.

As a migrant-exporting country and a remittance recipient,China has actively implemented the2030 Agenda for Sustainable Developmentand proposed and advanced the Belt and Road Initiative.China’s influence on migration and development is increasing,and it is also playing an increasingly important role in global migration governance and human rights governance.Therefore,the study of migration and development will help China cope with the increasingly complex international migration situation and governance environment,participate in the international competition for talent,explore a positive interaction model of international migration,sustainable development,and human rights,and give full play to the positive role of migration in development,so as to benefit all parties.

I.Inclusion of Human Rights in the Issue of Migration and Development

Under the promotion of the United Nations and other stakeholders,migration and development has become a focus issue,and international migration has been gradually incorporated into the global development agenda.The international community is increasingly aware that,in the context of globalization,the stale idea of regarding transnational migration as a problem or troublemaking should be changed,and that the contribution and potential of migration to sustainable development should be recognized and exploited.With the inclusion of human rights in the issue of migration and development and the proposal of a human rights-based approach to migration,human rights of migrants have become an important part of the issue and a sign to measure its progress and one of the final goals.Following on from the Millennium Development Goals,the2030 Agenda for Sustainable Developmenthas made a breakthrough by incorporating migration into the global Sustainable Development Goals (SDGs) and subsequently taken “respect for human rights” as a principle for implementing and evaluating these goals.10. “Transforming Our World: The 2030 Agenda for Sustainable Development”,Resolution 70/1 of the United Nations General Assembly,adopted on September 25,2015,para.4,8,74 (e).The Agenda has promoted the topic migration and development to a new level,but it has also been questioned to some extent.

A.Formation of the topic “migration and development” and human rights

Since its inception,the United Nations has put migration and economic development on the agenda of the General Assembly and the Economic and Social Council and adopted resolutions and documents to address the problems such as employment,welfare,and integration of migrants.11. UN.Doc.A/RES/209 (HI),Economic Development and Migration,November 18,1948.Although designed for development,these documents have paid attention to the importance of migrant rights and the principle of non-discrimination.In 1952,the United Nations General Assembly adopted the resolution “migration and economic development”,which recommends that states conclude bilateral or multilateral agreements with a view to the transfer and resettlement of groups of emigrants without “racial or religious discrimination,” as a part of their economic development12. UN Doc.A/RES/624 (VII),Migration and Economic Development,December 21,1952,para.1.

After the 1990s,a series of international conferences and documents focusing on development began to pay attention to the living conditions,rights protection,and social integration of migrants.In 1992,theDevelopment Agenda for the 21st Centurywas adopted by 178 countries at the United Nations Conference on Environment and Development,which stated that plans to promote sustainable development and eliminate poverty should take migrants and refugees into account,and pay attention to the specific impacts of demographic change on vulnerable groups,including migrants and refugees,on sustainable development.13. Agenda 21,United Nations Conference on Environment &Development,June 3 to 14,1992,Chapter 5,paras.3.5,5.21,5.34,5.39.The International Conference on Population and Development (ICPD) in 1994 adopted a comprehensive program of action for the first time,urging countries to cooperate on issues ranging from the protection of migrants’ rights,local integration,to the reduction of irregular migration,and “integrating migration into their policies and economic agendas.”14. United Nations System Chief Executives Board for Coordination,International Migration and Development:Contributions and Recommendations of the International System,UN System Organizations Publications,2013,page 22.The program of action states that the long-term manageability of migration requires “sustainable economic growth and development strategies consistent with that end.”15. United Nations Population Fund,“Programme of Action of the International Conference on Population and Development (20th Anniversary Edition)”,United Nations Population Fund,2014,page 102-105.In 1995,the United Nations World Summit for Social Development adopted theCopenhagen Declaration on Social Developmentand theProgramme of Action of the World Summit for Social Development,committing itself to ensuring that migrant workers are protected from exploitation and that the human rights of migrants and their families are respected and protected,16.C openhagen Declaration on Social Development,Resolution No.166/9,adopted at the United Nations General Assembly,March 12,1995,Commitments 3,4.because whether for economic development,social development,or for environmental protection,it is ultimately to improve the living quality of humans,and migrants are surely among them.17. Ibid.,1,2 and 26.

As the international community has paid increasing attention to the topic of migration and development,relevant mechanisms and communication platforms under the UN framework have been gradually established,which has effectively promoted the inclusion of migration in the global development agenda in the post Millennium Development Goals era.In late 2003,the Global Commission on International Migration was established based on the proposal of the United Nations secretary-general and several countries.The commission focuses on migration and development.It is the first-ever global panel addressing international migration.18. The Global Commission on International Migration operated from December 9,2003 to December 31,2005,see Global Commission on International Migration,The International Organization for Migration,https://www.iom.int/global-commission-international-migration.Its research put forward that international migration contributes to development and poverty reduction and that international migration should be an integral part of economic development strategies at the national,regional and international levels.19. UN/POP/MIG-FCM/2005/09,Summary of the Report of the Global Commission on International Migration,October 13,2005,page 3-4.On the recommendation of the Global Commission on International Migration,the Global Migration Group was established in 2006 to work on issues ranging from protecting the human rights of international migrants,promoting human security and development,to providing protection for vulnerable migrants.20. Global Migration Group,“Tenns of Reference”,https://www.globalmigrationgroup.org/system/files/uploads/documents/Final_GMG_Terms_of_Reference-prioritized,pdf;The Global Migration Group was built on the Geneva Migration Group,which was established in 2003.The Geneva Migration Group includes the United Nations High Commissioner for Refugees (UNHCR),the International Organization for Migration(IOM),the International Labor Organization (ILO),the Office of the United Nations High Commissioner for Human Rights (OHCHR),the United Nations Conference on Trade and Development (UNCTAD),and the United Nations Office on Drugs and Crime (UNODC).See OHCHR,“The Global Migration Group”,https://www.ohchr.org/EN/Issues/Migration/Pages/GlobalMigrationGroupIndex.aspx.In the same year,the United Nations General Assembly held the High-level Dialogue on International Migration and Development(hereinafter referred to as “High-level Dialogue”) for the first time,providing a platform for exploring the maximum benefits of migration for development.21. UN Doc.A/RES/58/208,Resolution Adopted at the General Assembly on December 23,2003,February 13,2004,para.9.In 2013,the Second High-Level Dialogue directly included “protecting the human rights of migrants” among the eight priorities of the agenda for action.22. High-level Dialogue on International Migration and Development,Making Migration Work: An Eight-Point Agenda for Action,2013,https://www.un.org/en/ga/68/meetings/migration/pdf/migration_ 8points_en.pdf.It was during this dialogue that the Global Migration Group stated that human rights and development are two sides of a coin,that the future migration governance should be centered on migrants,and that a new global development document should be formulated to fill the gap on migration in the Millennium Development Goals.23. Statement by the Global Migration Group “International Migration and Development” at the UN General Assembly High-level Dialogue on International Migration and Development 2013,October 4,2013,https://www.Globalmigrationgroup.org/system/files/uploads/news/ GMG-statement-for-2013-High-Level-Dialogue,pdf.The dialogue culminated in the formulation of theDeclaration of the High-level Dialogue on International Migration and Developmentwhich states that migration should be integrated with development,human rights should be respected,and migration should be taken into account in the post-2015 global development agenda.24. UN Doc.A/68/L.5,Declaration of the High-level Dialogue on International Migration and Development,October 1,2013,page 2.

B.Human rights-based approach to development and migration governance

The focus on human rights in migration and development cannot be separated from a “human rights-based approach.” This concept has been applied in the area of development and migration governance,providing an opportunity for the integration of migration,development,and human rights.Human rights and development are among the three pillars of the United Nations.TheDeclaration on the Right to Developmentadopted by the United Nations General Assembly in 1986 clearly states that “The right to development is an inalienable human right,” and that human beings are the subject of development as well as active participants and beneficiaries of the right to development.25. Declaration on the Right to Development,adopted by the United Nations General Assembly on December 4,1986,para.1 (1),2 (1).Therefore,the United Nations proposed a “human rights-based approach” based on theDeclaration on the Right to Development.This approach is a conceptual framework for the process of human development which puts humans at the center of development to ensure that the process of human development normatively conforms to international human rights standards and promotes and protects human rights at the practice level.26. UNSDG Human Rights Working Group,“Human Rights-Based Approach to Development Programming-Note Prepared by UNDG/DOCO”,October 2012,https://unsdg.un.org/ sites/default/files/information_ note _ 5-human _ rights-based_ approach,pdf.Under a human rights-based approach,the plans,policies and processes of development are anchored in a system of rights and corresponding obligations established by international law,including all civil,cultural,economic,political and social rights,labor rights and the right to development.27. Ibid.

The “human rights-based approach” can be traced back to the reform of the United Nations in 1997 and the proposal of human rights mainstreaming.In 1997,Kofi Annan,then Secretary-General of the United Nations,stated in his report “Renewing the United Nations: A Programme for Reform” that one of the main tasks for the United Nations is to strengthen its human rights programme and integrate it into the activities of the United Nations.28. UN Doc.A/51/950,Renewing the United Nations: A Programme for Reform,July 14,1997,para.79.Human rights mainstreaming requires United Nations bodies and specialized agencies,funds and programmes to integrate human rights into their activities and agendas and jointly address challenges in human rights in a more unified and coordinated manner.Although agencies had different attitudes toward the proposal,some reached a common understanding on a human rights-based approach to their development cooperation in 2003.The common understanding requires that all programs of development cooperation,policies and technical assistance should further the realization of human rights as laid down in theUniversal Declaration of Human Rightsand other international human rights instruments;Human rights standards contained in,and principles derived from,the above Declaration and instruments should guide all sectors and all phases of development cooperation;Development cooperation should contribute to the development of the capacities of “duty-bearers” to meet their obligations and/or of “rights-holders” to claim their rights.29. United Nations Development Group,“The Human Rights Based Approach to Development Cooperation Towards a Common Understanding Among UN Agencies”,September 2003,https://unsdg.un.org/resources/human-rights-based-approach-development-cooperation-towards-common-understanding-among-un.

Influenced by the mainstreaming of human rights,institutions focusing on labor,development and other areas have further integrated human rights into their international migration work.Taking the International Labor Organization and the United Nations Development Programme as examples,the success of the former is based on its structure and long-term practice,while the latter is a representative of the positive response and timely adjustment of policies to promote the mainstreaming of human rights.30. See Gerd Oberleitner,“A Decade of Mainstreaming Human Rights in the UN: Achievements,Failures,Challenges”,26 Netherlands Quarterly of Human Rights 3 (2017): 365-369.The international conventions and recommendations adopted by the International Labor Organization are the international standards based on which the “human rights-based approach” is established and an essential part of global migration governance norms.It also promotes the implementation of the standards through the reporting mechanism of States parties,appeals and complaints mechanism,procedures of the committee on freedom of association,and provision of technical support and training.Although the tripartite structure of the International Labor Organization is hard for others to copy,the holistic approach that clarifies obligations under international law,combines with multiple monitoring systems and targeted technical support and involves non-governmental actors to avoid the separation of economic,social and cultural rights,and civil and political rights can serve as a reference for the human rights mainstreaming of other institutions.31. Gerd Oberleitner,“A Decade of Mainstreaming Human Rights in the UN: Achievements,Failures,Challenges”,26 (3) Netherlands Quarterly of Human Rights 359 (2017): 367.The United Nations Development Programme was one of the first organizations to respond to the proposal for human rights mainstreaming.It proposed to gradually build a human rights-based path suitable for sustainable development in its policy documents issued in 1998.32. United Nations Development Programme,Integrating Human Rights with Sustainable Human Development:A UNDP Policy Document,UNDP,1998,page 17-18.In 2009,the Human Development Report of the United Nations Development Programme focused on migration for the first time,noting that reducing barriers to migration and improving treatment for migrants could bring huge benefits to human development.33. United Nations Development Programme,Human Development Report 2009 Overcoming Barriers: Human Mobility and Development, UNDP,2009,page 95-108.The report is regarded as a representative document that reflects the United Nations beginning to take a positive view of the relationship between migration and development.34. Samid Suliman,“Migration and Development after 2015”,14 Globalizations 3 (2017): 417.

With the mainstreaming of human rights and the human rights-based approach to development,the United Nations’ bodies and related organizations began to promote the human rights-based approach to migration governance.According to theMigration and Human Rights: Improving Human Rights-Based Governance of International Migration,a report of the Office of the United Nations High Commissioner for Human Rights,“a human rights-based approach” means that the treatment of migrants as human beings is placed at the forefront of discussions during the governance,and the underlying feature of a human rights-based approach is to identify the rights holder and duty bearer,make national policies and practices in line with international norms and principles,and perform the obligation of respecting,protecting and realizing human rights.35. Office of the United Nations High Commissioner for Human Rights,“Improving Human Rights-Based Governance of International Migration”,December 2012,page 32.These norms include theUniversal Declaration of Human Rights,the nine core human rights conventions of the United Nations,and relevant conventions of the International Labor Organization,and the principles include non-discrimination,empowerment,and accountability.The human rights-based approach has another feature,that is,awareness of the complexity of migration status and the dilemma it faces.Though there are different protection systems for groups such as migrant workers,trafficking victims and refugees under international conventions,it is not practical to make a clear distinction as the boundary between forced and voluntary migration becomes increasingly blurred and these groups often share migration paths and living spaces.The human rights-based approach to migration governance focuses on protecting the rights of all people and avoiding the neglect of some groups due to classification.36. Migration,Human Rights and Governance,IPU,ILO and IHCHR,2015,page 144.Due to the COVID-19 pandemic,the challenge of global migration governance has shifted from addressing the impact of migration to addressing the impact of barriers to migration.However,it is also linked to the human rights of these groups whose access to basic rights still needs to be guaranteed.37. Migration Policy Institute,“Will International Migration Governance Survive the COVID-19 Pandemic”,Migration Policy Institute,October 2020,page 1.In this context,it is even more important to follow a “human rights-based approach”,which is in line with the spirit of“leaving no one behind” proposed in the2030 Agenda for Sustainable Development.

C.Migration targets and human rights considerations of the 2030 Agenda for Sustainable Development

Following the Millennium Development Goals (MDGs),the United Nations General Assembly adopted the2030 Agenda for Sustainable Developmenton September 25,2015,which includes 17 Sustainable Development Goals (SDGS) and 169 targets under them,covering the three areas of the economy,society,and environment,and incorporating human rights into its formulation,goals and assessment principles.This Agenda states that the 2030 Sustainable Development Goals were set based on theUniversal Declaration of Human Rightsand international human rights treaties and by reference to theDeclaration on the Right to Development,and that the follow-up assessment of the goals should be people-centered,with the aim to “realize the human rights of all” and “respect human rights and have a particular focus on the poorest,most vulnerable and those furthest behind”,including migrants.38. “Transforming Our World: The 2030 Agenda for Sustainable Development”,Resolution 70/1 of the United Nations General Assembly,adopted on September 25,2015,para.8,10,19,74 (e),“Empowering vulnerable groups” in Para.23 include migrants,refugees and displaced persons.

The2030 Agenda for Sustainable Developmenthas also made a breakthrough in the area of migration.It explicitly includes migration as a target for the first time and reaffirms its focus on the human rights of migrants.The Agenda promises that “We will cooperate internationally to ensure safe,orderly and regular migration involving full respect for human rights and the humane treatment of migrants regardless of migration status,of refugees and of displaced persons.”39. Ibid.,para.29.The Agenda highlights the following three points: We should give full play to the positive role of migration in achieving Sustainable Development Goals;Respect and protect the rights of migrants and treat all regular and irregular migrants humanely;Promote safe,orderly and regular migration and strengthen global migration governance.Among the targets,those most directly related to migration include Target 8.7 (to eradicate human trafficking),Target 8.8 (to create safe and secure working environments for migrant workers),Target 10.c (to reduce the transaction costs of migrant remittances),and Target 10.7 (to facilitate orderly,safe,regular,and responsible migration and mobility of people,including through the implementation of planned and well-managed migration policies).These targets all embody a vision to protect migrant workers,reduce the transaction costs of migrant remittances,and enable migrants to benefit from more unified and coordinated migration policies and cooperation.They are closely linked to the work,life,and security of migrants.Target 10.7 is seen as a concentrated reflection of calling for the better governance of migration,covering some contents of other migration targets to a certain extent and the requirements for the protection of human rights of migrants.In 2015,the International Organization for Migration developed the Migration Governance Framework (MiGOF) specifically around Target 10.7 to explain what constitutes a “well-managed migration policy” at the national level.The Framework sets out three principles and three targets,including the principle of following international standards and implementing the rights of migrants and the target to promote the social and economic welfare of migrants,which indicates the importance of human rights in it.40. IOM, “Migration Governance Framework”,https://www.iom.int/sites/default/files/about-iom/migof_brochure_a4_en.pdf.

The introduction of migration-related targets is seen as a breakthrough in the2030 Agenda for Sustainable Development,which makes up for the neglect of migration,especially the human rights of migrants,in the Millennium Development Goals.41. See Gabriele Koehler,“Seven Decades of ‘Development’ and Now What?”,27 Journal of International Development 733 (2015);German Development Institute,“Post 2015: Making Migration Work for Sustainable Development”,2013,https://www.die-gdi.de/uploads/media/BP_21.2013.pdf.In the eyes of the International Organization for Migration,the2030 Agenda for Sustainable Developmentregards migration as a powerful path to sustainable development rather than a threat.Its goals take a migrant-friendly human rights path to facilitate more effective and gender-sensitive migration.42. International Organization for Migration,Migration and the 2030 Agenda: A Guide for Practitioners,IOM Publications,2018,page 19-21 and 28.However,some have argued that the Agenda has been overrated.While it appears to reflect the interests of migrants,countries of origin and receiving countries,it fails to address how and “who”will address the migration issues involved.43. Gery Nijenhuis and Maggi Leung,“Rethinking Migration in the 2030 Agenda: Towards a De-Temtorialized Conceptualization of Development”,44 Forum for Development Studies 1 (2017): 59.Some scholars believe that the Agenda still links the rights of migrants to whether they can bring positive and measurable economic growth and development,which is a wrong understanding of migration and development,and is not conducive to achieving sustainable and equitable migration.44. Samid Suliman,“Migration and Development after 2015”,14 Globalizations 3 (2017): 416.Other scholars have pointed out that the Agenda fails to adequately consider the development and well-being of migrants themselves,as well as the effects of war,militarization and other factors.45. El-Zein,A.J.D.,Fargues,P.,Salti,N.,Hanieh,A.and Lackner,H.,“Who’s been Left Behind? Why Sustainable Development Goals Fail the Arab World”,10040 The Lancet 388 (2016): 207.Moreover,it is questionable whether countries can achieve these development goals through partnership,given that Western powers have failed to promote development and held it back in the poorest regions of the world.46. Ibid.,209.

Regarding these migration targets,it is also questionable how progress will be judged and how the people-centered process will be demonstrated.According to the2030 Agenda for Sustainable Development,the implementation and assessment of the SDGs are led by countries on a voluntary basis,and the results of work at the country level are the basis for regional and global assessments.47. “Transforming Our World: The 2030 Agenda for Sustainable Development”,Resolution 70/1 of the United Nations General Assembly,adopted on September 25,2015,para.74.Therefore,the Inter-Agency and Expert Group on Sustainable Development Goal Indicators (IAEG-SDGS) developed a global indicator framework for the SDGs,and modified and adjusted it several times to form more than 230 indicators to assist countries in developing regional and national indicators.48. UN Doc.A/RES/71/313,Resolution Adopted by the General Assembly on July 6,2017: 71/313.Work of the Statistical Commission Pertaining to the 2030 Agenda for Sustainable Development,July 10,2017,Annex;“Global Indicator Framework for Sustainable Development Goals and Targets of the 2030 Agenda for Sustainable Development,” https://unstats,un.org/sdgs/indicators/Glob-al%20Indicator%20Framework%20 after%202021 %20refinement_Chi.Pdf.Although a total of 247 indicators are listed in the revised indicator framework,12 of them are duplicated.For example,for Target 10.7,the expert group set up such assessment indicators as the “Number of countries implementing migration policies that facilitate orderly,safe,regular,and responsible migration and mobility of people”and the “Number of dead or missing during the migration to an international destination.”49. Ibid.But these indicators are too general and lack an explanation of key concepts.The Migration Governance Indicators (MGI) developed by the International Organization for Migration under the Migration Governance Framework also provide assessment standards that can be used for reference.The data from the United Nations’Annual Sustainable Development Goals Report is collected based on it.50. Sustainable Development Goals Report 2022,published by the United Nations,2020,page 45.The indicators cover six policy areas: rights of migrants;“whole-of-government” approach;cooperative relationship;social and economic welfare of migrants;population movements during crises and disasters;safe,orderly,and regular migration.For details,see International Organization for Migration,Migration Governance Indicators: A Global Perspective, IOM Publications,2019,page 1.Although compared with the former,the migration governance indicators are more targeted and include the consideration of migrants’ human rights.They are not yet mature overall.Besides,many countries cannot develop assessment plans and collect data,especially during the COVID-19 pandemic.51. Sustainable Development Goals Report 2022,published by the United Nations,2020,page 4.According to the statistics in 2017,only 37 countries had statistical methods that meet the United Nations standards,and two-thirds of the indicators under the global indicator framework had no corresponding data.52. Organization for Economic Cooperation and Development,Development Co-operation Report 2017: Data for Development,OECD Publishing,2017,page 19.How many of these countries could objectively and impartially collect and submit information on the human rights of migrants and demonstrate a people-centered process? This requires further research.

There is another challenge for the SDGs,that is,their implementation requires cooperation among countries.Though the migration-related targets have generally received support from the international community,some have been hindered and even subject to opposition.In general,there is less divergence among countries on issues such as strengthening migration data construction and reducing the transaction costs of migrant remittances.However,there is greater divergence in the governance of irregular migration and border control.53. Kathleen Newland,“The Global Compact for Safe,Orderly and Regular Migration: An Unlikely Achievement”,30 International Journal of Refugee Law 4 (2018): 658.This is also why it is difficult for countries to respond positively to targets involving irregular migration,especially Targets 10.7 and 8.8.However,reducing irregular migration and promoting regular migration is the key to determining whether international migration and sustainable development can positively influence each other and the key to promoting global prosperity,peace and security and protecting the human rights of migrants.54. Ernest Toochi Aniche,“Migration and Sustainable Development: Challenges and Opportunities”,in Migration Conundrums,Regional Integration and Development, Inocent Moyo,Christopher Changwe Nshimbi,Jussi P.Laine eds.(London: Palgrave Macmillan,2020),37-61.The following text will analyze the dilemmas faced by these two targets and the reasons.

II.The Target to Promote Orderly,Safe,and Regular Migration and Its Dilemmas

In the2030 Agenda for Sustainable Development,Target 10.7 proposes “to facilitate orderly,safe,regular,and responsible migration and mobility of people,including through the implementation of planned and well-managed migration policies.” “Safe,orderly and regular migration” refers to migration in accordance with the relevant national laws and regulations of departure,entry,return and stay,as well as the international law,which should uphold the dignity and well-being of human beings,respect,protect and realize their rights,and notify and minimize the risks of migration.55. International Organization for Migration,Glossary on Migration,IOM Publications,2019,page 187.Only by opening up safe,orderly and regular migration routes can migrants be encouraged to avoid dangerous and irregular cross-border movements,and the positive role of this group for development can be brought into play.

To further implement this target and fully realize the potential significance of the Agenda for migrants,theNew York Declaration for Refugees and Migrantswas adopted by heads of state and government leaders and high representatives in 2016.For migrants,the Declaration promises to “promote the opportunity of safe,orderly and regular migration,” “protect the safety,dignity,human rights and fundamental freedoms of all migrants,” and protect the rights of migrants according to international law,especially the human rights of migrant children,the minimum labor standards of migrant workers,and trafficking victims and other vulnerable migrants.56. “New York Declaration for Refugees and Migrants,” Resolution 71/1 adopted at the United Nations General Assembly on September 19,2016,para.41,42,57,59,60.The Declaration explicitly identifies the human rights of migrants as an important concern and embodies a vision for a better balance between development and human rights.On the one hand,it reaffirms that “All are rights holders,” regardless of migration status,and emphasizes the need to ensure the purpose of putting people at the center;on the other hand,the Declaration states that theGlobal Compact for Migrationit promotes will follow the documents on development,including the2030 Agenda for Sustainable Development,theAddis Ababa Action Agenda of the Third International Conference on Financing for Development,and theDeclaration of the High-level Dialogue on International Migration and Development.

Under the promotion of the Declaration,theGlobal Compact for Safe,Orderly and Regular Migration(hereinafter referred to as theGlobal Compact for Migration)was adopted in 2018 after a series of inter-governmental negotiations.It establishes a framework for international cooperation and is dedicated to giving full play to the positive role of migration for world prosperity,innovation,and sustainable development through improved governance of migration.Also,the Compact tries to balance human rights with sustainable development.It is “rooted in the2030 Agenda for Sustainable Development,” but it is “based on international human rights law and upholds the principles of non-regression and non-discrimination … ensure effective respect for and protection and fulfillment of the human rights of all migrants at all stages of the migration process”,and integrates human rights into the targets.57. “Global Compact for Safe,Orderly and Regular Migration,” Resolution 73/195 adopted at the United Nations General Assembly on December 19,2018,para.6,15 (f).However,in the context of interwoven traditional and non-traditional security issues,this Compact is bound to face a series of difficulties and challenges from its birth.Although its commitment to human rights does not go beyond existing international rules,it still causes alarm and resistance in many countries.This follows that long-term global or regional sustainable development is not enough to attract countries to make a concession on some key migration issues or to pay more attention to the human rights situation of migrants.

A.Challenges to the Global Compact for Migration

Like the2030 Agenda for Sustainable Development,theGlobal Compact for Migrationis not legally binding.Some scholars believe that it is,at best,“the softest of soft law.”58. Kathleen Newland,“The Global Compact for Safe,Orderly and Regular Migration: An Unlikely Achievement”,30 International Journal of Refugee Law 4 (2018): 660.Others held that this development trend toward soft law,such as the agenda and compact,is actually a failure of the international community to protect the rights of migrants.59. Alan Desmond,“A New Dawn for the Human Rights of International Migrants? Protection of Migrant’s Rights in Light of the UN’s SDGs and Global Compact for Migration”,16 International Journal of Law in Context 3 (2020): 222-238.Given this nature,the implementation of theGlobal Compact for Migrationrelies heavily on cooperation among countries.It takes “international cooperation” as an essential guiding principle and “strengthening international cooperation and global partnership” as the 23rd target.However,due to a number of factors,the international community failed to reach a consensus expected by the Compact in this area.Perhaps,as scholars said,the political and moral commitments in theGlobal Compact for Migrationwere made based on the assumption that all countries will contribute to global migration governance for the common interests,but,in reality,the priorities of countries of origin and destination are not the same,and the multilateralism of the United Nations may not be applicable to the governance of all migrants.60. Ibid.,658;Alexander Betts,“Global Migration Govemance — the Emergence of a New Debate”,Global Eco-nomic Governance Programme Briefing Paper,November 2010,page 3,https://imi.socsci.ox.ac.uk/files/news/global-migration-govemance_paper_2010.pdf.Because of the irreconcilable positions of countries,their pursuit of different interests,and the impact of the COVID-19 pandemic,the acceptance and practical value of theGlobal Compact for Migrationhave been undermined.

Firstly,human rights are no longer above sovereignty.The first dilemma facing theGlobal Compact for Migrationis the main reason global migration governance is constrained.That is,countries believe that their sovereignty would be weakened.61. Alexander Betts and Lena Kainz,The History of Global Migration Governance,Working Paper Series No.122,Refugee Studies Centre,Oxford Department of International Development,University of Oxford,July 2017,page 1.Even Western countries,which have always upheld human rights above sovereignty,have shown resistance when the issue of migration concerns their own sovereignty,rather than that of others.However,in the eyes of some scholars,the Compact is merely a reminder of the performance of existing regional and global commitments,which may not lead to so-called conflicts between sovereignty and human rights.62. Francesca Capone,“The Alleged Tension Between the Global Compact for Safe,Orderly and Regular Migration and State Sovereignty: ‘Much Ado about Nothing’?” 33 Leiden Journal of International Law 3 (2020):719-721.Even so,in December 2017,the Trump administration declared its withdrawal from the Compact,saying that it would infringe on the sovereignty of the United States to enforce its immigration laws and secure its borders.63. Michelle Nicholas,“U.S.Quits Talks on Global Migration Pact Over Sovereignty Clash”,Reuters,December 4,2017,https://www.reuters.com/article/us-usa-migrants-un-idUSKBNlDX0Q4.The United Nations has no choice but to hope that the Biden administration will make a change on this issue,but so far,there has been no substantial progress.64. “UN Welcomes Biden Administration Commitment to Refugee Protection”,UN News,January 20,2021,https://news.un.org/en/story/2021/01/1082612.In July 2018,the Australian Home Affairs Minister said that although Australia participated in the negotiation of the Compact,it will not sign the current form due to sovereignty concerns because “it’s not in our national interest to sign our border protection policy over to the United Nations.”65. “Dutton Says Australia Won’t ‘Surrender Our Sovereignty’ by Signing UN Migration Deal,” The Guardian,July 25,2018,https://www.theguardian.com/australia-news/2018/jul/25/dutton-says-australia-wont-surrender-our-sovereignty-by-signing-un-migration-deal.Affected by the influx of migrants and refugees in Europe in 2015,the EU countries have also challenged theGlobal Compact for Migrationon the grounds of national sovereignty.The Hungarian government exited the Compact in October 2018,stating that the document is at odds with Hungary’s security interests;the Austrian government declared in October 2018 that it would not sign the Compact because “migration is not and should not become a human right,” and “we decide who comes into Austria and no one else”;the governments of Poland,Bulgaria and the Czech Republic also expressed their concerns about the influence of the Compact on their “national interests” and “sovereign principles”;the Italian Interior Minister announced that Italy would not take part in the final intergovernmental conference and only sign the document if its Parliament votes in favor of the text.In countries such as Germany,the Netherlands and Belgium,there have also been heated debates about whether the Compact is in their national interest.66. Sergio Carrera,Karel Lannoo,Marco Stefan and Lina Vosyliute,“Some EU Governments Leaving the UN Global Compact on Migration: A Contradiction in Terms?” Centre for European Policy Studies,Policy Insights No.2018/15,November 2018,page 2 and 3.Thus,it can be seen that developed countries,as desirable destinations for international migrants,are very wary of international documents related to migration.The positive impact of migration on development is not sufficient to attract them to make commitments in this area,even if such commitments do not make a substantial breakthrough in existing human rights rules.

Second,immigration has become a tool of the political game.Tensions among countries have thrown international migration into political turmoil.The rights and conditions of migrants are ignored and even exploited.For example,former US President Donald Trump issued Proclamation No.10043 in May 2020,banning some Chinese students and researchers from entering the country,citing threats to national security and economic vitality.This ban has not been lifted even after President Joe Biden took office.67. Proclamation 10043,Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,85 FR 34353,May 29,2020: Stuart Anderson,“Biden Keeps Costly Trump Visa Policy Denying Chinese Grad Students”,Forbes,August 10,2021,https://www.forbes.com/sites/stuartanderson/2021/08/10/biden-keeps-costly-trump-visa-policy-denying-chinese-grad-students/?sh=64163ec63641.Although Target 4.b of the2030 Agenda for Sustainable Devel-opmentand Target 5 of theGlobal Compact for Migrationboth propose to promote the mobility of students,the United States still tries to suppress China through such discriminatory measures,even though it will also harm the interests of US schools and colleges.The migration crisis on the Belarusian border in 2021 was linked to political factors that could not be ignored.Alexander Lukashenko was re-elected president of Belarus in August 2020 by a large vote.However,the United States and the European Union claimed election fraud and imposed multiple sanctions on Belarus.Against this backdrop,Belarus no longer stopped migrants and refugees from entering the European Union,forcing countries such as Poland,Lithuania,and Latvia to face massive irregular migration.The conflict escalated after Poland used water cannons and tear gas to prevent migrants from crossing the border.68. Vanessa Gera,Daria Litvinova,“Poland Uses Water Cannons Against Migrants at Belarus Border”,AP News,November 17,2021,https://apnews.com/article/europe-poland-migration-belarus-fflc2e213125788d-9f46b31c788625c9.The migration crisis became a confrontation between Belarus and the European Union and NATO,while migrants were stuck in the middle with nowhere to go and a cold winter to face.In response,the Office of the United Nations High Commissioner for Human Rights,the UN High Commissioner for Refugees,the United Nations Children’s Fund and other institutions and experts have repeatedly called for the human rights of migrants to be the most important concern and stressed that migrants and refugees should not be instrumentalized for political purposes.69. “Belarus-Poland Crisis: Human Rights of Trapped Migrants ‘Paramount’”,UN News,November 12,2021,https://news.un.org/en/story/2021/11/1 105672;“Uphold Safety,Human Rights on Belarus-Poland Border,UN Agencies Urge”,UN News,November 9,2021,https://news.un.org/en/story/2021/11/1105672.

Third,the global COVID-19 pandemic has posed challenges to human rights.With the global outbreak and spread of COVID-19,countries have adopted policies to prohibit or restrict entry,which has trapped a large number of migrants in a dilemma.They cannot return to their own countries,and have difficulty securing their rights in receiving countries.Although under some international human rights conventions,such as theInternational Covenant on Civil and Political Rights,“in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” the States parties may take measures for derogation of some rights,provided that such measures meet the requirements of proportionality,prohibition of discrimination and are consistent with other obligations under the international law.Under international human rights conventions without a derogation mechanism,such as theInternational Covenant on Economic,Social and Cultural Rights,“core obligations” such as the provision of essential medicines and freedom from hunger are also non-derogable.They should not be restricted on the grounds of nationality or legal status.70. Committee on Economic,Social and Cultural Rights,“Duties of States towards Refugees and Migrants under the International Covenant on Economic,Social and Cultural Rights”,see E/C.12/2017/1,para.9,10.In the general comment on the right to health,the Committee on Economic,Social and Cultural Rights also stated that States parties should ensure equal access to preventive,curative and palliative health services for all persons,including migrants,regardless of their legal status and documentation.71. Ibid.,para.12;Committee on Economic,Social and Cultural Rights,“General Comment No.14 (2000)”,see E/C.12/2000/4,para.34.Certainly,even without formally declaring states of emergency,States can adopt exceptional measures to protect public health that may restrict certain rights,such as freedom of movement.However,in the context of the COVID-19 pandemic,these restrictions must be established according to the law,and meet the requirements of necessity,proportionality,and prohibition of discrimination.72. OHCHR,Emergency Measures and COVID-19: Guidance,April 27,2020,https://www.ohchr.org/Docu-ments/Events/EmergencyMeasures_Covidl9.pdf.Thus,against the backdrop of the COVID-19 pandemic,migration is not yet in a vacuum of international human rights law.The practices of some countries during the pandemic,such as discriminatory measures targeting Asian immigrants,are undoubtedly in violation of international human rights law.73. Audrey Lebret,“COVID-19 Pandemic and Derogation to Human Rights”,7 Journal of Law and the Biosciences 1 (2020): 8.In order to protect the human rights of a large number of migrant groups,such as overseas workers and students,the countries of origin,countries of transit,and receiving countries should take joint measures to create possibilities for cross-border migration by such means as air transport and visa extension on the one hand,and on the other hand,providing human rights protection for them according to the standards and principles of international human rights conventions.For example,the Chinese government has done its best to ensure the safety of overseas Chinese citizens and help them return home in a gradual and orderly manner by organizing charter flights for repatriation,distributing health kits and other means.Foreign immigrants in China can also learn about nucleic acid testing,vaccines and other information in time.The pandemic means it is no longer the traditional issue of forced departure,but the inability of migrants to return home,which concerns human rights and development.In this case,the Global Compact for Safe,Orderly and Regular Migration is particularly important.74. Migration Policy Institute,“Will International Migration Governance Survive the COVID-19 Pandemic”,Migration Policy Institute,October 2020.

B.Coping with the dilemma of human trafficking and smuggling of migrants

The issue of human trafficking and migrant smuggling under global migration governance has always been the focus of attention of the international community.The International Organization for Migration takes the two to measure whether a country can ensure safe,orderly,and regular migration in its migration governance indicators.75. International Organization for Migration,Migration Governance Indicators: A Global Perspective,IOM Publications,2019,page 27.Although migrant smuggling and human trafficking are different,both the smuggled and trafficking victims are at great risk in the migration process.The2030 Agenda for Sustainable Developmentand theGlobal Compact for Migrationrequire countries to crack down on crimes related to irregular migration,protect vulnerable groups and treat all migrants humanely.However,the dilemma is that although relevant rules and mechanisms have been established at the international level,the level of governance varies from country to country,and the degree of international cooperation needs to be improved.Besides,there are often problems such as arbitrary detention and private torture of irregular migrants in the judicial practices of countries.76. Xu Junhua,“An International Law Perspective of Illegal Migration,” Law Review 1 (2007): 60.From the perspective of migration and development,this group is extremely vulnerable to neglect because it is not usually seen as an active participant and driver of development.However,the2030 Agenda for Sustainable Developmentand related documents do not exclude it.

Regarding human trafficking,Targets 8.7,5.2 and 16.2 of the2030 Agenda for Sustainable Developmentcall for eradicating human trafficking and exploitation,particularly of women and children.TheGlobal Compact for Migrationspecifically sets out specific measures to “prevent,combat and eradicate trafficking in persons in the context of international migration,” including cross-national and regional information sharing,promoting the ratification,accession and implementation of relevant international conventions,taking into consideration relevant recommendations of the United Nations Office on Drugs and Crime in the formulation of national and regional policies and measures,etc.77. UN Doc.A/RES/73/195,Resolution Adopted by the General Assembly on 19 December 2018: 73/195.Global Compact for Safe,Orderly and Regular Migration,January 11,2019,page 18-19.Although most countries have reached a certain consensus in this regard,and UN agencies are actively engaged in coordination and guidance,governance at the national level and cooperation among countries still need to be strengthened.According to the data of 49 countries collected by the International Organization for Migration between 2015 and 2019,only four countries set up specialized agencies to deal with human trafficking;very few countries had specific policies,strategies or national action plans to end human trafficking;a minority of countries signed formal cooperation agreements or arrangements with other countries to prevent and counter smuggling of migrants;only five countries took measures to minimize migration risks,including training police and border agents to identify trafficking victims and providing assistance to relevant non-governmental organizations.78. International Organization for Migration,Migration Governance Indicators: A Global Perspective,IOM Publications,2019,page 27-28.The Report of the Special Rapporteur on Trafficking in Persons,Especially Women and Children of the United Nations Human Rights Council,also noted that States failed to do a good job of protecting victims and potential victims of trafficking.79. UN Doc.A/HRC/38/45,Report of the Special Rapporteur on Trafficking in Persons,Especially Women and Children,May 14,2018,page 4.At the national level,there was a lack of awareness and capacity for victim identification in the first region of arrival,transit and destination countries,and repatriation procedures made unidentified victims vulnerable to reprisals and victimization.At the international level,the cross-border case transfer and cooperation also failed to provide adequate support and protection to victims.Besides,the COVID-19 pandemic pushed human trafficking further underground,making relief efforts more difficult and putting victims in an even more difficult situation.80. UNODC, “Impact of the COVID-19 Pandemic on Trafficking in Persons: Preliminary Findings and Messaging Based on Rapid Stocktaking”,https://www.unodc.org/documents/Advocacy-Section/HTMSS_Thematic_Brief_on_COVID-19.pdf.

In the context of anti-migration caused by the global pandemic and mass movements of the population,some countries have no time or willingness to consider the situation of trafficking victims in their border control measures.For example,in the face of the refugee and migration crisis,even European countries with relatively sophisticated migration governance are unable to “treat all migrants humanely.” The action plan proposed by the European Commission to support Italy,to reduce the pressure on the central Mediterranean Sea route,and to strengthen solidarity,as well as the memorandums of understanding signed by some countries with countries of origin and transit,have been criticized for human rights issues,especially for their adverse consequences for trafficking victims.81. UN Doc.A/HRC/38/45,Report of the Special Rapporteur on Trafficking in Persons,Especially Women and Children,May 14,2018,page 6.Besides,a series of anti-immigration policies and measures of the United States have been concerned and condemned by the international community.Under theTrafficking Victims Protection Act(TVPA) enacted in 2000,victims of trafficking into the United States for sex or forced labor could have been eligible for a T-visa,which gives them the right to work and other benefits while their cases are investigated.However,after the immigration policy was tightened,the interpretation of TVPA provisions became stricter,and the requirements for victims were almost harsh.This caused T-visa rejection rates to skyrocket,putting women and children trafficked to the southern border of the United States at an extreme disadvantage,some were even sent back to traffickers.82. Yael Schacher,“Abused,Blamed,and Refused: Protection Denied to Women and Children Trafficked over the U.S.Southern Border”,Refugee International, May 21,2019,https://www.refugeesintemational.org/reports/ 2019/5/21/abused-blamed-and-refused-protection-denied-to-women-and-children-trafficked-over-theus-southern-border.

Compared with human trafficking,the issue of migrant smuggling is more sensitive.Even smuggled people often face the same situation as trafficking victims.The report of the United Nations Office on Drugs and Crime states that thousands of irregular migrants die each year due to smuggling,and the causes of death include drowning,harsh environments,and disease,as well as homicide and car accidents.83. United Nations Office on Drugs and Crime,Global Study on Smuggling of Migrants 2018,United Nations publications,2018,page 5 and 9.There are unaccompanied minors among those being smuggled,who are vulnerable to exploitation or crimes such as rape,theft,kidnapping and human trafficking.Regarding migrant smuggling,theGlobal Compact for Migrationsets out specific measures.While pledging to work together to prevent and combat smuggling and disrupt smuggling networks,the Compact puts forward the requirements of “ensuring that migrants should not be criminally prosecuted for being the object of smuggling.” However,the Compact does not ensure that the object of smuggling will not be prosecuted for other behaviors,such as illegal entry,which is a compromise based on national sovereignty.The original “Zero Draft” of the Compact,published in February 2018,stated that illegal entry should be seen as an administrative offense rather than a criminal offense,but the statement was removed later.84. Global Compact for Safe,Orderly and Regular Migration (Zero Draft),February 5,2018,page 13,https://www.un.org/pga/72/wp-content/uploads/sites/51/2018/02/180205_GCM-zero-draft_final,pdf.Therefore,theGlobal Compact for Migrationdoes not break new ground in putting forward higher requirements for countries on this issue,and its position is consistent with the provisions of theProtocol Against the Smuggling of Migrants by Land,Sea and Air,Supplementing the United Nations Convention Against Transnational Crime.85. Francesca Capone,“The Alleged Tension Between the Global Compact for Safe,Orderly and Regular Migration and State Sovereignty: ‘Much Ado about Nothing’?” 33 Leiden Journal of International Law 3 (2020):720.Even so,the provisions of the2030 Agenda for Sustainable Developmentand theGlobal Compact for Migrationconcerning the smuggling of migrants have alarmed some countries.The human rights situation of smuggled persons has not been taken seriously or improved.

In September 2021,the violent behavior of US border agents on horseback driving Haitian migrants back and using their reins against them aroused public attention and widespread criticism and brought the human rights situation of migrants into the Unites States to forefront of the international community’s view once again.86. BBC,“Migrants in Texas: US Probes Horseback Charge on Haiti Migrants,”September 21,2021,https://www.bbc.com/news/world-us-canada-58637116.Most of these migrants,including many children under the age of six,crossed the borders into the United States and Mexico in the wake of political unrest and natural disasters.87. “Chile Police Bust Crime Ring Smuggling Haitian Children to U.S.,Mexico”,Reuters,October 5,2021,https://www.reuters.com/world/americas/chile-police-bust-crime-ring-smuggling-haitian-children-us-mexico-2021-10-04/.However,in the context of the COVID-19 pandemic,the Biden administration continued to implement the emergency policy initiated under the previous Trump administration,i.e.,Title 42 of theUnited States Code,and deported irregular migrants without an individual evaluation of their circumstances,bypassing US immigration laws and relevant regulations.In response,a number of independent United Nations experts submitted a complaint letter to the United States,expressing concerns about alleged violations of international human rights law and international refugee law.88. “UN Rights Experts Condemn US Expulsion of Haitian Migrants and Refugees”,UN News,October 25,2021,https://news.un.org/en/story/2021/10/1103962.Additionally,the US’ practice of locking up unaccompanied migrant teenagers was also controversial.Under Trump’s “zero tolerance” policy,4,300 children were separated from their parents or family members and placed in the category of unaccompanied youth.This is clearly contrary to the positions of theGlobal Compact for Migrationof “striving to end the detention of children in the context of international migration”,“safeguarding the best interests of the child” and “ensuring that anti-smuggling measures fully respect human rights.” Given the poor conditions in which they were held,the UN High Commissioner for Human Rights said such practices were suspected of constituting “cruel,inhuman or degrading treatment” under international law.89. “UN Rights Chief ‘Appalled’ by US Border Detention Conditions,Says Holding Migrant Children May Violate International Law”,UN News,July 8,2019,https://news.un.org/en/story/2019/07/1041991.

III.The Target to Protect the Rights of International Migrant Workers and Its Dilemmas

Migrant workers have always been an important part of international migrants,accounting for 70 percent of international migrants aged 15 and over.90. International Organization for Migration,World Migration Report 2020,IOM Publications,2019,page 33.The2030 Agenda for Sustainable Developmentemphasizes the importance of protecting the rights of migrant workers to achieve full employment for sustainable economic growth.Target 8.8 states that we should “protect labor rights and promote safe and secure working environments for all workers,including migrant workers,in particular women migrants,and those in precarious employment”.

Internationally,there has been a series of standards related to the rights protection of migrant workers,especially theMigration for Employment Convention(Convention No.97) and theMigrant Workers (Supplementary Provisions) Convention(Convention No.143) of the International Labor Organization,as well as theInternational Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,one of the core human rights conventions of the United Nations.Together,these three conventions form an essential part of the foundation of theGlobal Compact for Migration,91. “Transforming Our World: The 2030 Agenda for Sustainable Development”,Resolution 70/1 of the United Nations General Assembly,adopted on September 25,2015,footnote 1,3,para.2.and provide the support of rules and principles for global migration governance and international cooperation in this field92. Global Migration Policy Associates,Governance of Migration,update June 2017,https://www.globalmigrationpolicy.org/articles/governance/Governance%20of%20migration%20Context% 20Note% 20rev%20GMPA%20jun2017.pdf..However,given that the three conventions have not received a wide response from the international community,especially that most high-income countries refuse to join them,they are seen by some scholars as a failure or limited success.93. Martin Ruhs,“Rethinking International Legal Standards for the Protection of Migrant Workers: The Case for a ‘Core Rights’ Approach”,American Journal of International Law 111 (2017): 172.The divergences on this issue between migrant-exporting countries and receiving countries,and between the North and the South have achieved the relevant Sustainable Development Goals uncertain and increased the vulnerability of migrant workers in the context of the COVID-19 pandemic.

A.“Three conventions” about international migrant workers

Conventions and recommendations of the International Labor Organization are important for protecting migrant workers,among which the most representative ones are Conventions No.97 and No.143.In 1949,the International Labor Organization adopted theMigration for Employment Convention(Convention No.97),establishing several rights related to migrants and requiring the Member States to provide migrants with “treatment no less favorable than that which is applied to nationals” with respect to remuneration,accommodation,social security.But it is restricted to regular migrants and does not apply to border workers,seafarers,short-term freelancers,or artists.Convention No.97 was originally formulated to promote surplus labor mobility and encourage migrants to participate in the European reconstruction after World War II.Although many European countries no longer needed to bring in migrants after the oil crisis in 1973,cross-border migration did not stop there,which caused the International Labor Organization to turn its attention to irregular migration.94. Elaine Lebon-McGregor,“A History of Global Migration Governance: Challenging Linearity”,International Migration Institute,Working Paper Series 2020,No.167,September 2020,page 9.In this context,the International Labor Organization adopted theMigrant Workers (Supplementary Provisions) Convention(Convention No.143) in 1975,also known as theConvention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers,and made a breakthrough by including irregular migrant workers in response to massive migration.On the one hand,the Convention requires States parties to take necessary and appropriate means to combat irregular migration for employment and illegal employment of migrant workers;on the other hand,it extends the treatment and protection of regular migrant workers and stipulates that States parties shall not restrict the freedom of migrant workers to choose their jobs after two years.95. International Labor Organization,“Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers”,June 24,1975,Article.8 and 14.Of course,irregular migrant workers also enjoy certain rights.Under this Convention,migrant workers are entitled to remuneration and other benefits arising out of employment pursuant to Article 9,regardless of the legality of entry or employment,although the provisions on equality of opportunity and treatment apply only to regular migrants,just like the Convention No.97.96. Katharina Anna Häusler,“Defenceless Workers? The Protection of Irregular Migrant Workers in Europe with a Focus on the Situation in France and Spain”,Working Paper No.1/2020,Institut de Dret Public Parc Cientific de Barcelona,page 6,http://idpbarcelona.net/docs/public/wp/workingpaper2.pdf.

Though regarded as important pioneering documents,Conventions No.97 and No.143 were ratified by only 53 and 28 countries,respectively,as of July 1,2022.97. Ratification by Convention,ILO,https://www.ilo.org/dyn/normlex/en/f?p=1000: 12001.Especially,Convention No.143 tries to strike a balance between combating irregular migration and enhancing protection for regular migrant workers,yet fails to gain support from either side.In some European countries,Australia and other countries,the freedom of regular migrants to choose jobs stipulated in Article 14 (a) is not well supported.Mexico,Morocco and other migrant-exporting countries,or even the United States and other receiving countries,all have no intention to cut off irregular migration flows completely,98. Roger Bohning,“The ILO and the New UN Convention on Migrant Workers: The Past and Future”,25 (4)International Migration Review 698 (1991): 699.because such migration brings remittances to the exporting country,reduces domestic unemployment,and fills the labor gap in the receiving country.As Convention No.143 was unpopular,developing countries such as Mexico and Morocco decided to bypass the International Labor Organization and adopt a convention at the United Nations that was more favorable to irregular migrant workers.As a result,the United Nations General Assembly decided to establish a working group to develop an international human rights convention covering all migrant workers,including irregular migrant workers.99. “Measures to Improve the Situation and Ensure the Human Rights and Dignity of All Migrant Workers”,Resolution 34/172,adopted at General Assembly 106th plenary meeting,December 17,1979,Art.3.

In 1990,theInternational Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families(hereinafter referred to as theInterna-tional Convention on Migrant Workers) was adopted at the United Nations General Assembly.This Convention has the following features: First,it sets out two categories of rights,one for all migrant workers and members of their families,irrespective of their migration status;the other for documented migrant workers and their families.100. Office of the United Nations High Commissioner for Human Rights.“Fact Sheet No.30: The United Nations Human Rights Treaty System”,published by Office of the High Commissioner for Human Rights United Nations Office at Geneva,2005,page 14.So it can cover both regular and irregular migrant workers and make a distinction between the rights enjoyed by both.Second,it draws on existing rights in theUniversal Declaration of Human Rightsand international human rights conventions,and also establishes new rights for migrant workers based on their characteristics.101. James A.R.Nafziger and Barry C.Bartel,“The Migrant Workers Convention: Its Place in Human Rights Law”,25 The International Migration Review 4 (1991): 783.For example,Article 33 of the Convention requires States parties to inform migrant workers and members of the families of their rights under the Convention and provide them with information on conditions of entry and formal procedures free of charge.Third,in addition to the obligations of States parties to migrant workers as individuals,Part VI also provides a framework to create a rational,equitable,and humane environment for international migration.102. Office of the United Nations High Commissioner for Human Rights.“Fact Sheet No.24: International Convention on Migrant Workers and its Committee (Rev.1)”,published by Office of the High Commissioner for Human Rights United Nations Office at Geneva,2007,page 10.For example,States parties should establish appropriate institutions to take responsibility for the formulation and implementation of migration policies and for cooperation with relevant authorities of other States parties;take measures to impose effective sanctions on persons,groups,or entities using violence against irregular migrant workers or members of their families;and ensure that the working and living conditions of regular migrant workers and members of their families meet the standards of fitness,safety,health and principles of human dignity.

As the first legally binding international document that brings together the rights of migrant workers and members of their families,theInternational Convention on Migrant Workersprovides a set of international standards in this area and a framework for international cooperation.103. Juhani Lonnroth,“The International Convention on the Rights of All Migrant Workers and Members of Their Families in the Context of International Migration Policies: An Analysis of Ten Years of Negotiation”,25 International Migration Review 4 (1991): 734-735.But because of the limited number of countries joining the Convention,it did not come into force until 2003.During this period,the Intergovernmental Working Group of Experts on the Human Rights of Migrants expressed concerns about the rights of migrant workers and pointed out that theInternational Convention on Migrant Workersfailed to take effect in view of the lack of universal ratification by States of Conventions No.97 and No.143,and that the Convention will take time to work,so there is still a lack of supervision mechanism at the international level.104. UN Doc.E/CN.4/1990/80,Specific Groups and Individuals: Migrant Workers,March 9,1999,page 18 and 25.It is clear that at that time,the working group was prepared for the cold reception of theInternational Convention on Migrant Workers.As of July 1,2022,theInternational Convention on Migrant Workershad only 57 States parties,making it the one with the smallest number of parties among the nine core UN human rights conventions.105. Status of Treaties,United Nations Treaty Collection,https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg__no=IV-13&chapter=4.It was neither ratified by top countries of destination,such as EU countries,the United States,Saudi Arabia and Canada,nor by large countries of origin,such as China and India.106. The Top 20 Countries of Destination and Origin (2019),See International Organization for Migration,World Migration Report 2020,IOM Publications,2019,page 26.It was ratified by only a few countries,and the ratifying countries were mainly developing countries and small countries that were the countries of origin,posing challenges to the effectiveness and universal binding force of the Convention,107. Zhang Aining.“The Dilemma and Countermeasures of Human Rights Protection of Migrant Workers —from the Perspective of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families”,Human Rights 2 (2018): 119.and reflecting the split between North and South in multilateral migration governance.108. Alexander Betts and Lena Kainz,The History of Global Migration Governance,Working Paper Series No.122,Refugee Studies Centre,Oxford Department of International Development,University of Oxford,July 2017,page 3.

B.Reasons for cold reception of the “three conventions”

For the protection of migrant workers,as countries have different positions on different groups based on their development needs,it is difficult to reach a consensus.Even for regular migrant workers,improving the treatment and protection in accordance with international standards will be seen as a burden inevitably.Although such protection can attract talent to a certain extent,it will also affect the restriction and management of low-skilled workers in countries of destination.“Low-skilled” labor here usually refers to those engaged in lower-paying jobs that lack professional certification.Although craftsmen and mechanics were once regarded as elites among migrant workers,with the rise of a knowledge-based economy,those working in science,engineering and other high levels of management become “high-skilled” migrants.This group features high international mobility.Countries develop policies to attract high-skilled migrants from other countries and retain their native-born high-skilled talents.109. Barry R.Chiswick,“Immigration: High Skilled v.Low Skilled Labour?”,IZA Policy Paper,No.28,Institute for the Study of Labour,July 2011,page 2 and 18,https://www.econstor.eu/bitstream/10419/91767/1/pp28.pdf.While classifying migrants by skill is somewhat questionable110. Helen Dempster,There’s No Such Thing as a ‘Low’-Skill Worker,June 23,2021,Center for Global Development,https://www.cgdev.org/blog/theres-no-such-thing-low-skill-worker.,it seems inevitable in practice.Some scholars directly grouped low-skilled migrant workers with other irregular migrants,arguing that it is difficult to achieve multilateral governance for this group because such governance cannot bring public benefits at the global level.111. Alexander Betts,“Global Migration Governance-the Emergence of a New Debate”,Global Economic Governance Programme Briefing Paper,November 2010,page 3,https://imi.socsci.ox.ac.uk/files/news/global-migration-governance_paper_2010.pdf.Most countries are only motivated to protect the human rights of high-skilled talents,rather than low-skilled and irregular migrant workers.

TheInternational Convention on Migrant Workerscovers all migrants,including low-skilled groups.This is one of the reasons why it has failed to obtain more support.The Canadian government stated unequivocally that the main obstacle to ratifying theInternational Convention on Migrant Workersis that the Convention is inconsistent with Canada’s temporary labor program for low-skilled migrant workers,and prevents the country from restricting them to labor-scarce industries and jobs.112. Martin Ruhs,“The Human Rights of Migrant Workers: Why Do So Few Countries Care?”,56 American Behavioral Scientist 9 (2012): 1284.The Canadian federal government explicitly allows (administrative or contractual) withdrawal of fundamental rights under theInternational Convention on Migrant Workers.It has no interest in giving more rights to low-skilled workers with temporary work permits,particularly the free choice of remunerated activity specified in Article 52 of the Convention.113. Victor piche,Eugenie Depatie-Pelletier and Dina Epale,“Obstacles to Ratification of the ICRMW in Canada”,in Migration and Human Rights, Ryszard Cholewinski,Paul de Guchteneire and Antoine Pecoud ed.,(Cambridge: Cambridge Universality Press,2009),205-206.Also,the UK government said that ratifying the Convention may affect its restrictions on migrants with work permits,and that the provision that the restriction of freedom to choose remunerated activity shall not exceed two years conflicts with related UK policies.114. “Current Challenges in the Implementation of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families”,European Parliament,Policy Department DG External Policies,July 2013,page 31.Articles 43 and 45 of theInternational Convention on Migrant Workersalso provide that regular migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to access to vocational guidance and employment services,social and health services,protection of housing against exploitation,educational facilities and services.However,according to relevant UK laws and regulations,legally employed third-country citizens can enjoy various contributory programs,such as the right to equal treatment in education,but they are not entitled to non-contributory benefits.If the Convention is ratified,relevant UK provisions need to be adjusted.115. Ibid.Given the position of destination countries towards regular migrant workers,their attitude toward irregular migrant workers can be imaged.

Although the rights of irregular migrant workers under theInternational Convention on Migrant Workers,such as access to emergency medical assistance,are less extensive than the right to health under theInternational Covenant on Economic,Social and Cultural Rightsand theCharter of Fundamental Rights of the European Union,it will cause alarm and resistance among States if the protection of irregular migrant workers is concerned.In this respect,some scholars have suggested that,given the reluctance of countries to ratify theInternational Convention on Migrant Workers,a set of “core rights” should be selected,including the most basic civil and political rights as well as labor rights,but with the exclusion of benefits such as social housing and low-income assistance.116. Martin Ruhs,“Rethinking International Legal Standards for the Protection of Migrant Workers: The Case for a ‘Core Rights’ Approach”,American Journal of International Law 111 (2017): 175.However,even so,it remains controversial what these “core rights” should be.Besides,it may cause the requirements of theInternational Convention on Migrant Workerson States parties to fall further behind the provisions of other international human rights conventions.Although theInternational Covenant on Economic,Social and Cultural Rightsallows developing countries to determine “to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”,the exception is only limited to developing countries,and only with respect to economic rights,instead of social and cultural rights.The interpretation of this exception should be based on the original intention of human rights protection.117. David Weissbrodt and Michael Divine,“International Human Rights of Migrants”,in Foundations of International Migration Law, Brian Opeskin,Richard Perruchoud,Jillyanne Redpath-Cross eds.,(Cambridge:Cambridge University Press,2012),158.

Unlike the original intention of theInternational Convention on Migrant Workers,Convention No.143 of the International Labor Organization aims to combat irregular migration for the purpose of employment.Still,it also fails to gain broad support from the international community.Though the demand of countries for migrants is different from that of the 1960s and 1970s,the role of irregular migrant workers is still significant.They assume the dirtiest,hardest jobs and contribute to the local economy through taxes,house rent,and purchasing goods and services.The US Department of Agriculture estimated that nearly half of US farm workers were irregular migrants,and 15 percent and 9 percent of migrant workers were undocumented,respectively,in the construction and service industries.118. Mary Jo Dudley,“These U.S.Industries Can’s Work Without Illegal Immigrants”,January 10,2019,CBS News,https://www.cbsnews.com/news/illegal-immigrants-us-jobs-economy-farm-workers-taxes/.Because of the nature or intensity of work,it is hard to hire suitable local workers.Many industries in the United States rely heavily on migrants.If irregular migration flows are completely cut off,it will lead to labor shortage,affect economic development and result in rising prices.Although irregular migrants have played an important role in boosting the US economy and tax revenue,the rights of irregular migrant workers can hardly be protected,and they even become the victims of modern slavery because the United States is not a party to either theInternational Convention on Migrant Workersor Convention No.143.The Supreme Court of the United States ruled in several cases that undocumented migrant workers cannot be compensated for wrongful dismissal.119. Lu Hainai,“International Standards for the Protection of the Rights of Migrant Workers”,Human Rights 2(2015): 74.This reluctance to abandon or protect irregular migrant workers makes it difficult for international human rights standards on irregular migration to receive a positive response from the international community.

However,regardless of their signing and ratification status,the three conventions are the basis for the2030 Agenda for Sustainable Developmentand theGlobal Compact for Migration.Although the latter two are not legally binding,they are better than none,as they represent an essential step in policy decisions in relation to migration.120. Elaine Lebon-McGregor,“A History of Global Migration Governance: Challenging Linearity”,International Migration Institute,Working Paper Series 2020,No.167,September 2020,page 21.Migrant workers are an important force in ensuring the operation of industries during the COVID-19 pandemic and revitalizing the economy after it.The human rights protection of migrant workers is closely linked to sustainable development,which deserves more attention.However,they face higher risks of pay cuts and dismissal,and are often excluded from social assistance and welfare benefits.For them,losing jobs means losing their source of income and legal status.Once losing their legal status,irregular migrant workers will often give up the chance to be tested for the virus,treated,or get assistance in other areas for fear of being sent back or detained.In this regard,the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families said that States parties should guarantee the rights of migrant workers even during the COVID-19 pandemic,and should publicly declare and inform the Committee of emergency measures taken by them to restrict fundamental freedoms under the Convention,such as access to social services,medical care and unemployment benefits.121. UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Special Rapporteur on the Human Rights of Migrants,“Joint Guidance Note on the Impacts of the COVID-19 Pandemic on the Human Rights of Migrants”,OHCHR,May 26,2020,page 1 and 2,https://www.ohchr.org/Documents/Issues/Mi-gration/CMWSPMJointGuidanceNoteCOVID-19Migrants.pdf.UN and regional experts also said that migrant workers had contributed to the fight against the COVID-19 pandemic and economic recovery.Countries should include migrants in their national plans for COVID-19 response and recovery,treat all migrants with dignity and respect and provide them with equal access to basic services,including health services,benefits,information and assistance.122. “Migrants Must Be Included in All COVID-19 Recovery Plans-UN and Regional Experts”,OHCHR,December 17,2020,https://www.ohchr.org/SP/NewsEvents/Pages/DisplayNews.aspx? NewsID=26618&LanglD=E.

IV.Conclusion

The2030 Agenda for Sustainable Developmentfully confirms the relationship between migration and development,recognizes the contribution of migrants to promoting sustainable development,and calls for respect for and protection of the rights of migrants.It has corrected the academic and political perception of the relationship among migration,development,and human rights to some extent.Because the field has long been dominated by the United States and EU countries,and the Southern countries are in a relatively passive position,the human rights situation of migrants and their positive role,as well as the context of global inequality,are often ignored.123. Raúl Delgado Wise,Humberto Márquez Covarrubias and Ruben Puentes,“Reframing the Debate on Migration,Development and Human Rights”,19 (4) Population,Space and Place 430 (2013): 430-432.However,either for the construction of regular migration routes,the governance of irregular migration,or for the reduction of migration vulnerability from root causes and structural factors,the international community,particularly developed countries of destination,should make practical commitments and take actions to cooperate with countries of origin and transit.If the international community fails to make adjustments and changes in accordance with the2030 Agenda for Sustainable Developmentor to promote global migration governance for the long-term benefit of migrants,the negative effects of international migration will be amplified and cross-border migration will be carried out in an even more insecure and irregular way.

As China plays an increasingly important role in migration and development,it is also faced with an increasingly complex and challenging global situation and environ-ment of migration governance.In 2019,China was the third-largest exporting country of international migrants and a major recipient of remittances from migrants.124. International Organization for Migration,World Migration Report 2020,IOM Publications,2019,page 3,26 and 36.China is becoming a preferred destination for more international migrants,including highend talents.This is an inevitable trend as China pursues reform and opening up and goes global.It is also a witness to China’s rapid economic and social development and continuous progress in migration governance.China has vigorously promoted the implementation of migration-related targets under the2030 Agenda for Sustainable Developmentby deepening the reform of the migration management system and establishing the National Immigration Administration.125. “China’s Progress Report on Implementation of the 2030 Agenda for Sustainable Development (2019)”,Ministry of Foreign Affairs of the People’s Republic of China,September 2019,page 34,52 and 53.However,according to the integration of migration and development,China still has great room for exploration and progress,and it should “take promoting development as a target to regulate international migration” based on its national conditions.126. Liu Guofu and Weng Li.“Global Compact for Migration: Key Concepts,Main Features and Implications for China”,Journal of Overseas Chinese History Studies 1 (2019): 6.Besides,China should further consider migrants in its COVID-19 response plans and post-pandemic economic development,help them integrate into local society,turn them into a positive force to promote China’s sustainable development,and attract more talent.China should strengthen global migration governance and promote international cooperation based on the2030 Agenda for Sustainable Development,theGlobal Compact for Migrationand relevant international conventions,which will benefit foreign migrants in China and Chinese migrants in foreign countries,enabling them to fully enhance and develop their personal potential while enjoying the protection of human rights,and promote sustainable development at the national,regional and global levels to the greatest extent.