Regime design and compliance: migration regime in Central America and Mexico. Part 2/2

In the literature, migration is still treated by liberal-democratic states as a policy issue, and it is focused on the “receiver” perspective (Marchetti, 2008). And migration policies have conventionally been considered as states exercising their sovereign right to regulate the entry of non-citizens into their territory. Here we aim to a comprehension of the regional migration regime design (soft law and hard law) and how these states comply with such a regime.

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Below is presented a comparative chart on migration law institutions in Central America and Mexico (Source: Adapted from the Regional Conference on Migration, 15 years. 2012)

BELIZE

Foreign Affairs:   Ministry of Foreign Affairs through the Department of International Cooperation.   Formulates, coordinates, and implements foreign policy initiatives.

Interior/Security: Ministry of Defense and Immigration. Responsible for national defense and immigration.

Immigration: Immigration and Nationality Service. Executes immigration policy and regulations.

COSTA RICA

Foreign Affairs:  Ministry of Foreign Affairs and Cult, with participation of the Office of Consular Affairs and the Human Rights Office. The country’s governing body of foreign affairs.

Interior/Security: Ministry of the Interior, Policy and Public Security, through the Vice-Minister of the Interior and Police. Responsible for the protection of national sovereignty, surveillance, maintaining public order, and citizen security.

Immigration: General Directorate of Migration and Alienage. Institution which executes immigration policy.

 

EL SALVADOR

Foreign Affairs: Ministry of Foreign Affairs through the Directorate of Humanitarian Aid and Assistance to Migrants and the Directorate of Immigration Policy. Executes and promotes diplomatic relations open to the world.

Interior/Security: Ministry of Justice and Public Security. Develops approaches and strategies integrating state policy relating to public security.

Immigration: General Directorate of Migration and Immigration. Implements immigration policy and procedures for Salvadoran citizens and foreign nationals.

 

GUATEMALA

Foreign Affairs:   Ministry of Foreign Affairs through the General Directorate and Consular and Immigration Affairs. Implements and formulates policies and applies the legal framework for relations with other states or international law organizations.

Interior/Security: Ministry of the Interior through the Vice-Minister of Security. Governing body of the country’s interior policy for its governance, and of the security and possessions of citizens.

Immigration: General Directorate of Immigration. In charge of controlling, verifying and ensuring the entry, stay and exit of Guatemalan citizens and foreign nationals in the country.

 

HONDURAS

Foreign Affairs:   Secretariat of Foreign Affairs, through the General Directorate of Consular Affairs. Coordinates, implements, follows up on and evaluates the state’s foreign policy and relations.

Interior/Security: Secretariat of the Interior and Justice. Focuses on coordination and inter-institutional links for a more coherent and effective interior policy.

Immigration: General directorate of Migration and Immigration. In charge of controlling, verifying and ensuring the entry, stay and exit of Honduran citizens and foreign nationals in the country.

MEXICO

Foreign Affairs:   Secretariat of Foreign Affairs, represented by the Sub-Secretary for Latin America and through the General Directorate of American Regional Organizations and Mechanisms. This Directorate draws up and gives, in coordination with other sections of the Secretariat and other government institutions, general guidelines that rule Mexico’s acting before the OAS, organizations of the Inter-American System, regional autonomous organizations and regional and multilateral coordination mechanisms.

Interior/Security: Secretariat of the Interior, through the Sub-Secretariat of Population, Migration, and Religious Affairs Provides support in the relations of the Federal Executive with other powers of the Union and with the other government levels.

Immigration: National Institute of Migration Responsible for an efficient and safe migration management, based on the relevant legal framework and full respect for human dignity.

NICARAGUA

Foreign Affairs:   Ministry of Foreign Affairs, through the General Consular Directorate Governing body for formulating, proposing, and implementing the State’s foreign policy through the General Consular Directorate.

Interior/Security: Ministry of the Interior Formulates and implements State policy on public order, crime prevention, human rights, and migration matters, among others.

Immigration: Directorate of Migration and Immigration Formulates and implements Nicaraguan State policy on migration matters and national security.

 

PANAMA

Foreign Affairs: Ministry of Foreign Affairs, through the Directorate of Legal Affairs and Treaties. Coordinates, with corresponding government authorities, legal aspects of Panama’s migration policies, under the directives from the Vice-Minister. 

Interior/Security: Ministry of Public Security Leads comprehensive citizen security in coordination with its offices.

Immigration: National Immigration Service Regulates migration movements – entry and exit of Panamanian citizens and foreign nationals.

We can mention various attempts of cooperation for a normative framework on migration like the TPS (Temporal Protection Status), or the Alliance for the Prosperity of the North Triangle . But maybe the most important effort is the Regional Conference on Migration (Puebla Process), where Central American and North American countries gather every year to discuss migration issues. However, this is a forum whose objective is to share information and promote dialogue on migration. It is not aimed at regulating it, even if it produces some general guidelines for the member countries. Nevertheless, it may be the closest thing to a formal regional migration regime in the area.

Because of hurricane Mitch and the Salvadoran earthquakes, in 1998 and 2001 respectively. The U.S government granted temporary protected status (TPS) for about 86,000 Hondurans and Nicaraguans as deportation proceedings were for the moment suspended for Salvadorans and Guatemalans. After the earthquakes, Salvadorans were also granted Temporal Protection Status (TPS). This status has been repeatedly renewed due to political pressure from immigrants, immigrant support groups and Central American governments. It has been renewed for Salvadorans once more in January 7^th, 2015 through September 9^th, 2016 (U.S. Citizenship and Immigration Services. Temporal Protection Status). The only problem with this temporary protected status is precisely that it is temporary, as such, after eighteen months, the person is sent back to his or her country and because of this, many people do not apply to the program, so that they are not tracked.

The Alliance for the Prosperity of the North Triangle (Alianza para la Prosperidad del Triángulo Norte, for its name in Spanish) is a very recent effort to decrease migration from the Central American North Triangle (El Salvador, Honduras and Guatemala) to the U.S. The initiative surged because of the increased migration of children alone to the U.S. and it recognizes the causes of this issue and adopts counter measures for short, medium and long term.

The plan consists of four main areas of action: a) focus on investment and entrepreneurism in order to create more economic opportunities and reduce the economic reasons for migration; b) to guarantee more citizen security, especially in those places where people migrate from the most; c) investment in human capital; and d) strengthening of institutions in order to increase people’s trust in the State. The plan was presented in the conference organized by the Inter-American Development Bank in Washington on November, 2014, named “Investing in Central America: Opening Opportunities for Growth” (Honduras Presidency, 2014).

On the other hand, the Regional Conference on Migration (RCM), or Puebla Process, is a forum originated in 1996 among Central and North American countries, including Canada and the Dominican Republic. It also includes countries that have observer status: Argentina, Colombia, Ecuador, Jamaica and Peru. Additionally, international organizations also have observer status: Office of the High Commissioner for Refugees (UNHCR), Economic Commission for Latin America and the Caribbean (ECLAC/CELADE), Inter-American Commission on Human Rights (IACHR), International Organization for Migration (IOM), Central American Integration System (SICA), among others. In addition, non-governmental organizations have formed the Regional Network of Civil Organizations on Migration, with the function of representing the existing civil society organizations that work on migration in the region (Regional Conference on Migration 2014).

The RCM has been designed to generate cooperation projects, workshops and seminars, and to give technical and institutional assistance for immigration authorities of the member countries. The forum has also produced some general guidelines and manuals about the return of migrants, assistance of migrant children and women, and repatriation of victims of traffic of persons. About its organization structure, in order of importance include the Vice-Ministerial Meeting, the Regional Consultation Group on Migration, Liaison Officer Network to Combat Migrant Smuggling and Trafficking in Persons and Liaison Officer Network for Consular Protection.

Additionally, the Vice-Ministers have established the Technical Secretariat with the purpose of managing the RCM and following up on the agreements reached at the meetings. The three areas where the RCM work are a) Migration Policy and management (Migration Policy and Management; Trafficking in Persons and Migrant Smuggling); b) Human Rights (Consular Protection; Migrant Children, Women, and Groups in Vulnerable Situations); and c) Migration and Development (Remittances; Temporary Migrant Workers; and the Private Sector).

The domestic laws that we analyzed above have a good level of compliance, and the main reason might be that they are actual laws that these countries have made with the purpose of controlling the migration of their peoples. That is, they constitute hard law. The Regional Conference on Migration promises to be a key actor for the correct and humane governance of the migration in the region. But could it actually coordinate the movement of people and set the legally binding norms for it alongside the rights and obligations for all the involved parties?

States are many times assumed to use international institutions for their own objectives and to design institutions accordingly (Koremenos, Lipson and Snidal, 2001). If we base our analysis of the Regional Conference on Migration on Koremenos, Lipson and Snidal (2001), the regime appears to fulfill the five key dimensions they mention: membership rules, scope of issues covered, centralization of tasks, flexibility of arrangements and rules for controlling the institution. This might certainly help ensure cooperation, but can this non-legally binding regime design promote compliance? In their analysis, the authors cross these five dimensions with variables about the institutional design such as distribution, enforcement, number, and uncertainty about behavior.

Some scholars argue that compliance is very high with soft law agreements and argue that they are very useful (Shelton, 2000). There is a long-term debate about the efficiency of soft law and hard law in international regimes (Chayes and Chayes, 1993; Franck, 1988; Downs, 1998; Downs et al. 1996; Koh, 1997, 1998). It is well known that institutions evolution over time in order to achieve their goals, and we can mention cases such as the GATT’s evolution into the WTO, the Law of the Sea Treaty, the UN charter or the Security Council. In this sense, it would be reasonable to think of the RCM evolving into an actually ruling institution. Therefore, it is the opinion of the author (based on Koh’s reasoning) that soft law with the purpose of good faith cooperation between states and institutions might be the best way to start an international migration regime. However, the more legalized the regime, the more compliance it is likely to promote, and therefore, it might seem logical that the next step of the RCM should be to incorporate legally binding norms. Is this going to be the case, or is the RCM going to remain the way it is now, as a forum to share information and promote dialogue?

Given the reasoning that institutions are rational and negotiated responses to the problems that states and institutions face, and that they adhere to these institutions because doing so is in their interests (Koremenos, Lipson and Snidal, 2001), the RCM seems to be a good response to the migration situation and governance in Central America, Mexico and the U.S. Only time will tell whether this regime will evolve into an actual regulating regime.

Dott.ssa Ana Figueroa