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by Elspeth Guild, Professor of Law, and Katharine T. Weatherhead, PhD Candidate, Queen Mary University of London

The Global Compact for Migration will be the topic of a debate in the framework of the 18th edition of the Odysseus Summer School on Asylum and Immigration Law and Policy that will take place at the Université Libre de Bruxelles in July. Elspeth Guild, one of the authors of this post, will be present in Brussels for this debate on Friday 6 July.

The UN is currently in the middle of the intergovernmental negotiation of a new instrument, a Global Compact for Safe, Orderly and Regular Migration. The process was launched with the UN General Assembly’s New York Declaration on Refugees and Migrants of 19 September 2016 which called for two Compacts, one on refugees and the other on migration (A/RES/71/1). To the regret of the President of the UN General Assembly, the US Government announced its decision not to participate in the GCM’s negotiation, leaving thus the European Union as one of the important regional powers in the global north still in the process. A Zero Draft of the GCM was released on 5 February 2018, followed by a Draft Revision 1 on 26 March 2018 that has been the basis for the present blog. The process is nearing the critical end, as a fairly final draft needs to exist in the summer so that States can put everything in place for formal adoption of the GCM at the Intergovernmental Conference in Morocco from 10-11 December 2018.

The UN does not generally use the term ‘Global Compact’ for agreements and the novelty of the term makes it unclear what kind of instrument it will be from a legal perspective. However, one negotiating entity, the EU, has been in no doubt about its stance towards the document’s status. Throughout the GCM’s development, the EU has insisted that it should not be a legally binding instrument. The EU’s input to the UN Secretary-General’s report (A/72/643) on the GCM includes wording to that effect in the first line: “The future Global Compact on Migration should be a non-legally binding document resulting from an intergovernmental process, at the same time going beyond the declaratory nature of the New York Declaration by setting forth specific priorities and actions/chapters and linking them to a follow-up and monitoring mechanism” (p.1, original emphasis). In the preambles of the Zero Draft and Draft Revision 1 (paras 5 and 6 respectively), the UN sustains this message that the GCM is not a legally binding framework. Even if the draft text makes multiple references to law, such as the preambular mention of international human rights treaties (Draft Revision 1, para 2), the overarching message is that the GCM itself is not legally binding.

Despite this seemingly simple message, the EU’s position in negotiating the GCM belies tensions which have political and legal implications for the EU and for global cooperation on migration. We elucidate a few of these tensions by addressing how some areas of EU migration policy are reflected in the GCM, namely the EU’s emphasis on distinguishing among migrants and on States’ responsibility to readmit nationals. We end with a brief look at the Commission’s proposal regarding the adoption of the GCM on behalf of the EU.

I. DISTINGUISHING AMONG MIGRANTS

On 20 February 2018, the Head of the EU Delegation to the UN made a statement on the GCM Zero Draft. He expressed that two aspects should be further reflected in the text: firstly, the distinction between regular and irregular migrants and, secondly, State responsibilities towards their citizens, including return and readmission. He said:

“First, since the aim of the Global Compact is to enhance international cooperation on safe, orderly and regular migration and reduce irregular migration – and the negative implications it has for countries of origin, transit, and destination as well as for migrants themselves – , the text should better distinguish between regular and irregular migrants. It should avoid any language that might be interpreted as justification or even an incentive for irregular migration.”

This aspect suggests that distinguishing further among migrants would support the aim of the Compact in enhancing cooperation on safe, orderly and regular migration. To this, the statement adds that better distinguishing among migrants would support the aim of reducing irregular migration. The addition is meaningful. It directs attention away from the promotion of regular migration towards the associated, but not equivalent, prevention of irregular migration. The EU directs attention to irregularity even though “the majority of migrants live and work legally”, as UN Secretary-General Guterres said in January 2018 when presenting his report on Making Migration Work For All.

The GCM Draft Revision 1 includes references to distinctions among migrants that are not present in the Zero Draft. One such new reference appears in the context of ‘national sovereignty’, a guiding principle on which the GCM is based. There is the affirmation that “States are sovereign to distinguish between regular and irregular migration status by determining national requirements for entry, residence and work, taking into account different national realities, policies and priorities” (Draft Revision 1, para 14). In addition, the preamble now declares that “migrants and refugees are distinct groups governed by different legal frameworks” (Draft Revision 1, para 3). The draft continues with the assertion that “Unlike refugees, migrants are not inherently vulnerable, but their human rights must be respected under international human rights law at all times, in particular when they face an increased risk of violations and abuses” (Draft Revision 1, para 3). So, there is a distinction in the text between regular and irregular migrants, and between migrants and refugees.

The insistence on regular versus irregular ignores the category of third country nationals who live in a grey area in between the two. This category is side-stepped by the EU Return Directive which defines ‘illegal stay’ as “the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State” (Article 3(2) directive 008/115/EC). Specifically, Article 9 of the Directive might indeed require for a postponement of removal of migrants with irregular status, when for the listed reasons they cannot be removed from a Member State, but it does not provide them with a regular status in the (potentially indefinite) meantime. As a result, the grey area carries on.

Moreover, it is not evident that distinguishing among migrants would serve to enhance cooperation on regular migration, since distinctions in existing international legal frameworks have done little in this regard. Article 1A of the 1951 Convention and Protocol Relating to the Status of Refugees establishes the definition of a refugee under international law. The preamble of the Refugee Convention considers the necessity of international cooperation, yet there remains no strong system of responsibility sharing for the safe, orderly and regular migration of even this legally limited group of refugees. Consequently, with limited opportunity to benefit from international protection via regular migration, some refugees resort to migrating irregularly. Besides, the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families notes a distinction between migrant workers in regular and irregular situations (Article 5), plus it obliges States to collaborate to prevent irregular movement (Article 68). Yet, despite this apparent resonance between the EU’s stated interests in the GCM and the content of the Migrant Workers Convention – both distinguishing between regular and irregular migrants as well as promoting cooperation to prevent irregular migration – no EU Member State has ratified the treaty.

Contrary to enhancing cooperation on regular migration, distinctions among migrants function as a tool to promote counterproductive policies geared towards restricting irregular migration according to the national interests of only some States. The EU’s focus on the ‘negative implications’ of irregular migration feeds into the discourse which criminalises and dehumanises migrants with irregular status. They are often presented as problems, more so than recognised refugees and regular migrants who are designated as deserving protection and residence rights. International human rights law, with the Universal Declaration of Human Rights as its touchstone, enshrines the principle of non-discrimination and equal enjoyment of human rights by everyone. However, migrants with irregular status – whose treatment remains of concern to their States of nationality – are subject to human rights violations as a result of State measures that put them in vulnerable situations. These measures encourage clandestinity because invisibility becomes one of the few resources left for such migrants. Notably, while the term ‘regularization’ appears in the GCM Zero Draft, it is not mentioned explicitly in the GCM Draft Revision 1 (paras 30(g) and 31(g) respectively).

 

II. EMPHASISING STATES’ RESPONSIBILITY TO READMIT

The second aspect that the EU emphasises in its comments on the Zero Draft is about States’ responsibility towards their own citizens. On this point, the Head of the Delegation of the EU to the UN stated:

“The second aspect that should be better reflected in the text is the responsibility of states towards their own citizens. This includes, first and foremost, addressing drivers of irregular migration and creating opportunities for all, in particular the youth. In this regard, we firmly believe that international development cooperation plays a key role in creating good living conditions for people in their home countries. This responsibility also entails the obligation of states – under international law – to take back their nationals without any conditions and actively cooperate to facilitate returns and readmission.”

In contrast to its insistence on the non-binding nature of the GCM, the EU is not hesitant to revert to international law with regards to this particular aspect. The emphasis here is on the legal obligation for States to take back their nationals.

International law experts grapple with the nature of the obligation of States to admit their own nationals, and the basis of the obligation in international law is not obvious. A source of this obligation might be Article 12(4) of the ICCPR according to which “No one shall be arbitrarily deprived of the right to enter his own country.” The wording of the provision in the ICCPR does not clearly require States to assist in the forced expulsion of their nationals from other countries. As Noll points out in a relevant article, “an individual right to return is not the same as a claim about obligations to receive which are owed by one State to another”. In pointing to this part of the ICCPR, we are not denying that there is an obligation for States to readmit their own nationals; the extent to which such a denial is tenable would require detailed analysis. Rather, we wish to highlight that the simplicity of the EU’s assertion of the obligation to readmit contrasts with the complexity of the legal basis. EU Member States and others that intend to rely on such an obligation would end up referring to a mish-mash of different sources of international law, including the sovereignty principle, State practice, and select legal opinions which support their position.

The EU’s approach in the GCM negotiations might be an attempt to generate, on a global scale, an effortless understanding of a legal obligation to readmit. There are indeed indications in the GCM negotiations that it may be successful in that attempt. The Zero Draft contains an objective on cooperation to facilitate “dignified and sustainable return, readmission and reintegration” (objective 21, para 35). The Draft Revision 1 notably adds, in the first sentence, the phrase “in accordance with the obligation of States to readmit their own nationals” (para 36). It seems that the EU mantra has made its way into a prime position in the GCM. Yet, it is worth remembering that readmission agreements are not always popular with States which are on the receiving end. When Bert Koenders, Dutch Minister of Foreign Affairs, communicated in December 2016 that he had agreed a readmission agreement with Mali for the EU, the Mali Government responded that it had not agreed any legal obligations.

The EU is not averse to using negative incentives to push for cooperation on readmission. On 14 March 2018, Commissioner Avramopoulos made a speech on visa policy reform and remarked that the EU “will introduce stricter conditions for processing visas when a partner country does not cooperate sufficiently on the readmission of irregular migrants”. Evidently, in its efforts to return third country nationals from its Member States on the basis of readmission agreements, even when these are faced with resistance from third countries, the EU is exercising an element of both coercion and cooperation. This agitation at the heart of the EU’s position may come back to haunt its Member States as it leads to conflicts in international relations.

III. THE EU’S INTERNAL ARRANGEMENTS

Finally, while the preference for a non-legally binding document might strike some as an indication of a substantial hesitation within the EU to develop a robust international framework for migration policy, it should not be forgotten that this is also a matter of EU internal housekeeping. On 21 March 2018, the Commission presented a proposal for a Council Decision that provides for exceptional authorisation from the Council for the Commission to approve the GCM on behalf of the EU at the end of the process (COM(2018) 168 final). This is a bold move. If successful, it would mean that the Commission finalises the adoption of the GCM at the UN, though keeping the Council informed of developments. Under the sole article in this proposal, there would be no need to revert back to the Council, unless the GCM “substantially” diverges from the Zero Draft Plus which makes clarificatory amendments to the Zero Draft. Moreover, on the basis of this proposal, the GCM would be approved by the institution which represents the EU’s interests – the Commission – rather than those of the Member States.

In its effort to get the Council to grant the Commission the power to finish up the negotiations, the Commission highlights that “the Union has been strongly and continuously engaged” in the GCM process and that there is a unified EU approach which resulted in a Zero Draft that reflects EU acquis, policy, and the objective of multilateralism. However, the assertion of an unified EU approach is to some extent undermined by the speech on 13 March 2018 of Federica Mogherini, in her capacity as High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission, when she expressed her regret that one un-named Member State “has recently presented a position that is not in line with the position of the 27 other Member States”. This division between the 27 and the 1 could have fuelled the Commission’s efforts to seek authority to adopt the GCM without further Council interference. The Commission’s emphasis that the GCM mirrors EU policy can be considered also a little disingenuous, since the securitised logic of some EU migration policy measures does not have equal prominence in the Zero Draft Plus, to which the Commission refers.

However, as we have pointed out, the EU’s areas of interest incited the inclusion of some of the more coercive logic of certain parts of EU migration policy in the GCM during the move to Draft Revision 1. It is yet to be seen how the associated legal and political tensions underlying the EU’s position will play out as States move to finalise, adopt, and implement the Global Compact for Safe, Orderly and Regular Migration.


Note: This blog post was written in April 2018. Later revisions of the draft GCM are available here.