How Transnationally Effective are the UK Migration Policies in Relation to Missing Migrants? A Transnational Law Perspective.

• Date: 01 March 2021
• Author: Eda, Luke Nwibo

TABLE OF CONTENTS I. INTRODUCTION 345 II. TRANSNATIONAL LAW AND THE TRANSNATIONAL PROBLEM OF MISSING MIGRANTS 349 III. WHAT DO WE MEAN BY A TRANSNATIONALLY EFFECTIVE NATIONAL MIGRATION POLICY? 359 IV. POLICY RESPONSES TO THE TRANSNATIONAL PROBLEM OF MISSING MIGRANTS AT THE EU LEVEL 368 A. Humanitarianism Response 373 B. Securitisation Response 376 C. Externalisation Response 379 D. Solidarity Response 381 E. On the Effectiveness of the EU Response Measures and Policies 382 V. POLICY RESPONSES TO MISSING MIGRANTS AT THE UK LEVEL AND THE QUESTION OF THEIR TRANSNATIONAL EFFECTRVENESS: WHAT WE KNOW SO FAR 388 VI. SO, WHY NATIONAL MIGRATION POLICIES WITH TRANSNATIONAL EFFECTS? 397 A. The Transnational Nature of Migration 397 B. Extraterritorial Reach and Effects of Positive Human Rights Obligation of States 399 C. Externalisation of Migration Policies and Border Controls 402 VII. THE UN GLOBAL COMPACT (GCM) AND MISSING MIGRANTS 404 A. The Legal Status of the GCM and Prospectis of National Implementation: The Way Forward for the United Kingdom 405 B. Are States' Obligations Towards Missing Migrants Under the GCM and Other International Legal Norms Moral but Not Legal? 408 VII. Conclusion 411 I. INTRODUCTION

The phenomenon of missing migrants (1) poses exceptional challenges for states, affected families, and the international community as a whole for many reasons. The first challenge is migration's transnational scale--involving a large number of irregular migrants from origin countries crossing the high sea and state borders in a desperate attempt to enter transit and destination countries. (2) Second is the immense cost (3) and other practical challenges involved in search, investigation, identification, (4) and repatriation of dead migrants to their families. And third is the apparent transnational ineffectiveness of national migration policies in response to the problem. Migrants mostly go missing at sea and EU external borders when they attempt to escape from war and generalised violence, repressive regimes, systematic human rights abuses, etc. (5) The UNCHR estimates that worldwide, by the end of 2018, more than 70.8 million people around the world were forced to flee their homes as a result of persecution, violence, conflicts, or human rights abuses, out of which 25.9 million were refugees. (6) Most of the migrants are fleeing armed conflict (7) in the Middle East, mainly the Syrian civil war, (8) and also armed conflicts in different parts of Africa, (9) mainly those sparked by the Arab spring uprisings (10) and regime crisis in the Horn of Africa and Libya. (11) Generally, over the last three decades, international migration has increased at an unprecedented level; far more than E.G. Ravenstein, widely believed to be principal pioneer of migration studies, could have imagined in 1885. (12) In 2010, it was estimated that around 214 million people (representing 3.1 percent of the total global population) (13) resided outside their home countries, (14) an increase of 35 million from 2000 and 58 million since 1990. (15) In 2017, the number reached 258 million, up from 248 million in 2015 and 191 million in 2005. (16) With the number hitting 272 million in 2020, (17) it is now estimated that if migration continues at the same rate as it has been in the last 20 years, the number could be as high as 405 million by 2050. (18) Thus, migrant and refugee flows across external borders of states are not a new phenomenon. (19) They constitute a "significant feature of political life in Western liberal democracies" (20) and are likely to increase both in scope, complexity, and impact. (21) Migrants move in search of food to survive and also to escape violence, threats to life, and possible death. (22) In many cases, states of departure are either unwilling or genuinely unable to offer protection. (23) Transit and receiving states too, often refrain from tackling the problem until migrants reach their territory. (24) They sometimes deny that they have obligations to deal with cases of migrants reported missing in transnational migration. (25) Such conflicting claims raise serious questions about migration policies and governance and how the problem of missing migrants should be dealt with at the international level. The newly adopted United Nations Global Compact for Safe, Orderly and Regular Migration (GCM) answers a part of the question by recognising that migration generally, and missing migrants specifically, is a transnational social problem which requires greater cooperation amongst states as well as policies with transnational effects. (26) Such declaration in the GCM echoes the sentiments of transnational law, which advocates that transnational social problems that transcend national frontiers, such as migration, must be tackled through a transnational legal and policy response and approach. (27) The United Kingdom was one of the earliest countries to endorse the new GCM, hinting that it respects national sovereignty and the inherent right of sovereign states to determine and implement their own national migration policies and protect their national interest. (28) A petition backed by the UK Independence Party (UKIP) (29) to the House of Commons against the country's accession to the GCM had attracted 131,617 signatures in 2018. (30) The government however argued that the GCM will "support global co-operation on migration without affecting the sovereignty of all countries to control their own borders." (31)

Given the significance of the United Kingdom's commitment to the GCM, this Article asks if the UK policy in relation to missing migrants is transnationally effective, such as to facilitate implementation of the GCM and other relevant international legal instruments nationally. Adopting a transnational law approach, this Article unfolds in the following six sections: Part I first highlights the problem of missing migrants in light of transnational law. It is argued that the problem of missing migrants is a transnational legal and policy issue that requires a transnational response from states. Such a response would require adoption of a transnationally effective national migration policy. But what constitutes a transnationally effective national migration policy in relation to missing migrants is largely undefined in the literature. Therefore, this Article proceeds in Part II to define what is meant by a transnationally effective national migration policy. It then considers, in general, the policy responses to the problem of missing migrants first at the EU level (Part III) and then at the UK level (Part IV), bearing in mind that the UK policy approach draws more broadly from the wider EU policy perspectives on transnational migration. It then proceeds in Part V to provide the wider justification for the argument for adoption of a transnationally effective national migration policy to address the problem of missing migrants. Part VI considers the relevant provisions of the GCM relating to missing migrants and what obligations the United Kingdom has to implement the GCM in a transnationally effective way. It then proceeds to consider the interface between the legal and moral dimensions of the obligations of states towards migrants given that the benefits of such interface will prove critical when evaluating the transnational effectiveness of state migration policies in relation to missing migrants. Existing evidence in the literature shows limited knowledge about the transnational effects of the UK policies in relation to missing migrants. Therefore, this Article, in its concluding part, highlights the imperatives of strengthening, in order to avoid a future policy vacuum, the transnational effectiveness of UK policies in addressing the increasing cases of people who go missing while attempting to reach international destinations.

2. TRANSNATIONAL LAW AND THE TRANSNATIONAL PROBLEM OF MISSING MIGRANTS

   Transnational legal problems are rarely amenable to simple solutions, not least when a legal subject is missing in migration. When Philip Jessup, in his 1955 influential Storrs Lectures at the Yale Law School, articulated and proposed the term "transnational law" to "include all law which regulates actions or events that transcend national frontiers," (32) cross-border irregular migration leading to deaths and human disappearances at sea, deserts, borders, and other fragmented spaces must have been one of those transnational events that was high on his thoughts and agenda. (33) Jessup's transnational law theory recognises that externalized domestic laws and policies of states enforced abroad, beyond national frontiers, can at times impact a state's population in more influential ways than when those laws and policies are enforced strictly within national legal orders. One typical example of where national policies can produce transnational effects is irregular migration. Not least because states are increasingly adopting externalized migration policies in response to large unauthorized migrant flows into their territories. The adoption and implementation of extra territorialized migration policies and procedures by states in response to migrant movements clearly indicate that migrant and refugee flows across seas and borders of states are transnational legal and policy issues that go right to the heart of any normative discussion of transnationalism. (34) This is so because the aspiration of irregular migrants to reach the territories of states in search of safety and better life is itself a transnational activity. (35) And international migration that involves migrants crossing the borders of states is itself a transnational process. (36) A broader diagnosis of the legal, policy, and practical problem of missing migrants will unveil its transnational dimension. First, with the high seas left wide open, migration journeys have seen several thousands of migrants die while making the deadly sea crossings...