Tomorrow, Canada will sign the United Nations Global Compact on Migration in Marrakesh, Morocco, and so it should. For Canada, at least, this is a no-brainer. At least, it seemed to be, until Andrew Sheer shot up a flare in Question Period last week. Now everyone has a view.
Sheer claims that the Trudeau government is signing away our sovereignty to international bureaucrats. Should we be concerned?
First, let’s get clear on one thing: The Compact is not a legally binding document. It is a statement of objectives and shared understandings. In other words, it is aspirational.
Still, for some even this is a bridge too far. Brian Lilley, for example, explains why aspirations like these can be dangerous. Basically, they infiltrate our thinking and “erode” our sovereignty.
Thus, judges may start appealing to these ideas in their rulings; or policy-makers may be guided by the objectives. The next thing you know, we are up to our necks in international rules.
The argument conflates two very different things. It is one thing to say the agreement might influence how officials think – which is exactly what it is supposed to do; it is something else to say that it alters the government’s power to act – that is, it’s sovereignty – which the agreement doesn’t do.
In fact, agreements like this are commonly used to guide the evolution of international norms, especially in complex policy areas where impacts can’t be contained by borders.
Polluting rivers or spewing carbon into the air affects other countries. Similarly, conditions like poverty or war can send waves of migrants across a whole continent.
International cooperation is critical to the successful management of such issues; and we know from long experience in other areas that this calls for agreements of some kind.
Take trade. Canada is a trading nation and having strong international norms, agreements, and institutions that support rules-based, fair trade is essential to our prosperity. We’ve been involved in trade deals long enough to know what we want so we’re even willing to make binding legal agreements – treaties.
The refugee crisis of 2015-16 showed the world how important migration has become. It also showed how chaotic things can get when there are no shared objectives or practices to frame thinking and discussions at the international level. An aspirational agreement is the natural place to start and the Compact was developed by a team of UN members – led by a Canadian – to fill this void.
So, yes, judges or policy-makers might draw on it to support some decisions. We expect them to. But these reasonings would be advanced as arguments, not laws, rules or even policies; and arguments are open to question, change or rejection. Judges and policy-makers disagree with one another’s arguments all the time.
The purpose of the Compact is to help signatories evolve a shared understanding of migration – to let them sift through the issues, test ideas and learn as they go. Sometimes they will agree and sometimes they will not. Every country is different.
Eventually, they may arrive at a clear enough understanding of the issues and of their respective differences to draft a treaty that parses national and international roles in an acceptable way.
So, Lilley is quite right, aspirational agreements like this one promote the ideas they contain, but they also create shared views on complex issues. That’s the trade-off. The real question, then, is not whether aspirations affect our thinking – of course they do – but whether the objectives in the Compact are right for Canada, which brings us back to Sheer.
European nationalists on the far Right attack the Compact for eroding national sovereignty. Sheer’s decision to raise this issue now seems to have been spurred by the hope he could position it the same way here in Canada but, so far, he’s not getting much traction.
The National Post, for example, acknowledges that the “general goal of the compact — safer and more humane lives for migrants and refugees — is fine.”
Where there is concern, it is focused more on possible risks than fatal flaws. John Ivison wonders whether deeper issues might be buried in the text – say, in the language around migrants’ rights – and eventually find their way into our laws.
He points to the UN Declaration on the Rights of Indigenous Peoples, which was also an aspirational document. It contained clauses that worried some law-makers, yet last May a private members’ bill was passed in the House of Commons that requires Canadian law to be consistent with the Declaration. Ivison wonders if we’ve now saddled ourselves with bad commitments.
His point, I think, is that international agreements are likely to have flaws, so we should avoid them. If so, I disagree – deeply. If a private member’s bill has created a problem with Indigenous rights, the fault lies with Parliament, not the Declaration. Parliament has simply failed to provide due diligence, that is, to scrutinize the implications of the bill properly.
My view is that we shouldn’t expect aspirational agreements to be flawless. They are learning tools. When it comes to complex new policy areas, learning involves uncertainty. Aspirational agreements let us find the flaws and weed them out through trial and error.
Canadians have a deep interest in promoting international norms that align with our goals. Aspirational documents are critical tools for this. We should not be cowed into accepting norms we oppose, but let’s not throw out the baby with the bathwater.