Whether or not states have signed the compact, the compact will affect them. The nonparticipants all face migration from countries that have affirmed the compact. Those countries may demand adherence to the compact in dealing with those states. States may also face peer pressure to implement aspects of the compact. If most EU states are participating in the Migration Data Portal, for example, those that do not will be left out of an important mechanism for state cooperation. Lawyers and advocates, seeking to make the best possible arguments for their clients, will argue that the compact represents emerging norms regardless of whether a state has affirmed the compact. (As U.S. courts apply U.S. law, the weight of such an argument before U.S. judges is unlikely to be great, regardless of whether the U.S. has affirmed that law). At the moment of a migration crisis, the compact is the playbook for which negotiators will reach—if for no other reason, because of the absence of any other.
States may refuse to affirm the compact, but they cannot ignore it. Any state that does not affirm an agreement supported by more than 180 countries will bear the burden of explaining why it has made that decision. Those who have withdrawn have weakened the spirit of multilateralism, and are also missing the opportunities afforded by the continuing process. In Marrakech, the dialogue would be enriched if Italy could have presented on how its development cooperation with African states is reducing the need for migration, and if the United States could have discussed pathways for migrant entrepreneurship and explored talent matching for U.S. corporations. Despite these and other notable absences, however, the Global Compact for Migration remains strong, and an impressive achievement for the international community.
Jill Goldenziel has served as a civil society stakeholder in the process to create the Global Compact for Migration, representing the Academic Council on the UN System (ACUNS) and the American Society of International Law (ASIL), and acting in her personal capacity. She is Associate Professor of International Law and International Relations at Marine Corps University-Command and Staff College. The views expressed here are her own and do not represent those of ACUNS, ASIL, Marine Corps University, the U.S. Department of Defense, or any other arm of the U.S. Government.