The following remarks were made by Deputy Assistant Secretary Veprek on Sunday, 24 March 2019, during the MCC Budapest Summit on Migration.
Thank you for that introduction, and thank you, Mr. Minister, for your remarks. Many thanks to also to the conference organizers and MCC for inviting me and my colleague, Deputy Assistant Secretary Marocco. I am pleased to be here to follow up on Secretary Pompeo’s recent visit. I appreciate the opportunity to address this subject, which is one of great interest to the United States.
Faced with the large, often uncontrolled movements of people we see around the world today, many countries – including my own – are seeking to more effectively protect their borders, enforce their immigration laws, and generally ensure that immigration promotes the interests of their citizens.
But effective national solutions for migration must begin with clear and informed thinking about problems. Unfortunately, our public discourse about immigration, and thus our thinking, frequently is limited in ways we might not realize or anticipate. Put another way, the way we talk about issues is important.
Let’s start with subject of our conference. What do we mean when we talk about “migration?” In fact, there is no universally-accepted definition of the term.
Not even the Global Compact for Safe, Orderly, and Regular Migration, which the United Nations touts as the “first inter-governmentally negotiated agreement, prepared under the auspices of the United Nations, to cover all dimensions of international migration in a holistic and comprehensive manner,” defines its subject anywhere in its 34 pages.
Nevertheless, we need to start somewhere. The International Organization for Migration is as good a place as any, and they helpfully offer the following working definition. Migration is:
the movement of a person or a group of persons, either across an international border, or within a State. It is a population movement, encompassing any kind of movement of people, whatever its length, composition and causes; it includes migration of refugees, displaced persons, economic migrants, and persons moving for other purposes, including family reunification.
You will notice that this is an extremely broad definition, sweeping up every conceivable category of human movement: domestic and international, permanent and temporary, forced and voluntary. But missing from this definition, and perhaps in the broader discussion, is the role of law, a key national interest, in movement across international borders.
What a strange absence! International borders are the places where different sets of national laws and interests meet and, some might say, collide. They are in fact thick with laws, even if not all of them are enforced, and filled with warnings about where one can and cannot go or what one can and cannot do or carry on one side of the border or the other. This is obvious not only to those of us who work on immigration matters, but anyone who traveled here for this conference from outside of the Schengen zone.
So, why is there a law-shaped hole in the term “migration?”
We see a similarly ambiguous stance towards lawful immigration in the Global Compact for Safe, Orderly, and Regular Migration – despite its claim to be based on the principles of national sovereignty and the rule of law.
On this, let me pause to recognize and appreciate the several other countries that have opposed or abstained from supporting the Compact, particularly Hungary, which was the first in Europe in this regard, and we appreciate the close cooperation in our effort to oppose the Compact.
As you know, the United States did not participate in the negotiation of the Compact, objected to its adoption, and holds that it is not bound by any of the commitments or outcomes stemming from the Compact process or contained in the Compact itself.
I will not review the whole of the United States objection to the Compact here – it is available online for those who are interested – but one of our principal substantive concerns was the Compact’s failure to distinguish adequately between foreign nationals who have legal status in host countries and those who are unlawfully present.
To take one example, the Compact in paragraph 31(b) encourages what some call “firewalls” for services within governments to protect the privacy of aliens and to eliminate the potential that aliens will avoid services to which they are allegedly entitled out of fear of arrest or detention.
It is the view of the United States, however, that information-sharing among relevant departments and levels of government, in accordance with our national laws and policy, is essential to promote the steady enforcement of our laws. Or, as another American official put it, “No great and prosperous nation can have both a generous welfare system and open borders.”
But a deep ambiguity about law seems to permeate not only the text of the Compact – it is inherent in the nature and title of the Compact itself.
The Compact asserts that it is not legally binding and that it protects the sovereignty of States. However, its supporters had considerably greater ambitions when they launched the process that led to the Compact. We are concerned that they seek to use the Compact as a long-term means of building customary international law, or so-called “soft law,” in the area of migration.
Consider the novel use of the term “compact” to describe the document. Unlike standard titles for international instruments, “compact” has no settled meaning in international law, but to some it implies legal obligation. Hence, the Compact is open to claims that its commitments are legal obligations or at least evidence of international consensus on universal legal principles.
The United States objects to any such claims and holds that neither the Compact nor any commitments by States to implement its objectives create any legal obligations or create new rights or protections for foreign nationals as a matter of conventional or customary international law.
Let’s consider where this leaves us: We are grappling with a global crisis based on a concept – migration – for which there is no universally-accepted definition. But what we have is limited in one obvious and important respect – the role of law. The instrument that is promoted to address this crisis – the Global Compact on Migration – has an ambiguous relationship to law in its substance, form, and intent.
Now, I am a diplomat by profession, so I appreciate the constructive uses of silence or ambiguity to cover small differences in the name of reaching agreement on larger points. But as a representative of a sovereign country and someone sworn to defend its Constitution and laws, this is too much.
We need to restore what is missing in this discourse. The way we talk about crossing international borders should reflect the centrality of law, and the need for such movements to be in accordance with national laws.
For example, in the United States, foreign nationals who are not lawfully present are not “irregular migrants.” They are illegal aliens violating the laws and immigration policies of our nation, and they are subject to arrest, detention, prosecution, and removal.
Some will object that this type of language – “legal” and “illegal” – is too harsh. But as a former Attorney General of the United States noted, it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts. Within such a system, we can offer protection to those who merit it, legal forms of employment for those who qualify, and opportunities for others to study and visit.
In many of our countries, citizens – including those who themselves immigrated from other countries – understand this. They are deeply concerned about the presence of large numbers of illegal aliens. Open and massive law-breaking undercuts citizens’ faith in the ability of their governments to enforce their laws, thus undermining the rule of law.
In democratic nations, where governments are responsive and accountable to the people, illegal immigration also hurts the ability of States to consider implementing new forms of legal immigration. Lawful and orderly immigration must therefore start and end with effective national controls over borders, which are rooted in law.
Finally, let me say: Emphasizing the law when we talk about immigration is particularly important to those of us who hold positions of public trust or who have the ability to influence the course of public affairs. As President Trump said to the United Nations General Assembly last September:
Our government’s first duty is to its people, to our citizens – to serve their needs, to ensure their safety, to preserve their rights, and to defend their values. If we desire to lift up our citizens … we must fulfill our sovereign duties to the people we faithfully represent. We must protect our nations, their interests, and their futures. We must uphold respect for law, respect for borders, and respect for culture, and the peaceful engagement these allow.