EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

by Mauro Gatti, Research Associate, University of Luxembourg, Faculté de Droit, Economie et Finance

The Global Compact for Safe, Orderly and Regular Migration (hereinafter, Global Compact) has become the focus of heated discussion in Europe. The Global Compact is a seemingly inoffensive UN document, approved by more than 150 states at the Intergovernmental Conference of Marrakesh on 10-11 December 2018. The EU and all its Member States supported the Compact since 2016, but several European leaders lately criticised it, alleging that it violates national sovereignty and prevents countries from controlling their borders. The Compact thus became the object of political attention, parliament debates, and even a government crisis. Several EU states decided not to participate in the adoption of the Compact in the intergovernmental conference of Marrakesh and at least seven announced that they would not support it in the UN General Assembly.

How did we come to EU States’ exit from the Global Compact? Is there anything the EU may do about it? To answer these questions, this post describes the Compact (1) and shows that all EU Member States initially supported it (2), but some EU countries later opposed it (3). While this fragmentation is potentially in breach of EU law (4), there is little the EU can do at this stage, either at the judicial level (5) or at the political one: The opposition to the Compact has propagandistic objectives, that cannot be negotiated away (6).

1. The Global Compact on Migration

The Global Compact on Migration has its origin in the New York Declaration for Refugees and Migrants (hereinafter, Declaration), adopted unanimously by the UN General Assembly Resolution on 19 September 2016. The Declaration introduces some broad commitments regarding the treatment of migrants and refugees and envisages further development of the frameworks relating to these two categories of persons. Two processes of intergovernmental consultations, involving UN Members, have therefore been launched, leading to a Global Compact on Refugees and a Global Compact on Migration, respectively. Only the latter is addressed here, as it proved more problematic at the political level.

The Global Compact on Migration was finalised in July 2018 and set to be formally adopted through an intergovernmental conference in December 2018. This document is relevant, as it represents the first attempt at creating a coherent framework on migration at the global level.

The Compact remains nonetheless quite modest in its ambitions. It expressly stipulates that it presents a “non-legally binding” framework. This means that the Compact creates neither obligations for States (e.g. the obligation to admit migrants) nor rights for individuals (e.g. the right to migrate to another country). The absence of binding effects does not necessarily imply that an international instrument is irrelevant. Non-binding instruments can be used as an aid to the interpretation of other pieces of law.  They may even replace legally binding commitments (see further Peters 2018). For instance, the EU has entered into a non-binding arrangement with Afghanistan, which has the same function and effects as a typical readmission agreement – meaning the “readmission” by Afghanistan of migrants returned from the EU (about 360 persons between 2016 and 2017).

Differently from these instruments, the Global Compact on Migration seems unlikely to have dramatic effects per se. Considerations about legal effects aside, the commitments contained in the Compact seem too imprecise to create expectations of compliance. For instance, the Compact stipulates that the parties “commit to adapt options and pathways for regular migration in a manner that facilitates labour mobility and decent work” (para. 21). The Compact does not contain any specific commitment that might lead to the attainment of such a broad objective. It rather provides for lists of actions the parties might “draw from” in order to attain the Compact’s objectives. Thus, States might, for instance, consider adapting options for regular migration by facilitating access to procedures for family reunification for migrants “through appropriate measures” (para. 21(i)).

Moreover, the Compact’s components are multiple and potentially contradictory. For example, while one of the objectives of the Compact is to manage “regular migration”, another is to facilitate safe and regular cross-border movements of people “while preventing irregular migration” (para. 27). The very principles of the Compact might also be difficult to reconcile. For instance, the Compact stresses the principle of “international cooperation”, because “no State can address migration on its own due to the inherently transnational nature of the phenomenon”; immediately afterwards, however, the Compact reaffirms “the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction”. Therefore, “States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact” (para. 15).

The imprecision of the Global Compact is not necessarily a flaw. This document represents a point of departure for global cooperation in the field of migration, and it would be surprising if it were very detailed or straightforward. What is certain is that the Compact does not impose any specific legal solution for the management of migration. Hence, it should not be exceedingly problematic, at least in principle.

2. EU States, from Unity…

The EU and its Member States have indeed supported the Global Compact on Migration and have given a coherent contribution to its development. As noted in an Odysseus blogpost in July, this scenario is not surprising. EU institutions and Member States demonstrated in the past a great degree of convergence in the area of migration, to the point that they often implemented joint initiatives, such as mobility partnerships or the notorious EU-Turkey Statement. It seems that all EU actors support the same pragmatic strategy: offering benefits, notably money, to third States, in exchange for a reduction of migration fluxes.

The EU was united during the discussions of the Global Compact, too. The EU and its Member States often spoke with one voice, as the EU’s delegation (i.e. the EU embassy) spoke on behalf of the Union and its Member States. For instance, the EU’s representative took the floor in October 2017, “on behalf of the EU and its MS”, affirming that the Compact should facilitate opportunities for regular migration. In another occasion, the EU (also on behalf of the Member States) recalled “that States must fully protect the human rights of all migrants, regardless of their migratory status.” In yet another instance, the EU (and its Members) called for the reinforcement of “the principles of solidarity and shared responsibility in managing large movements of migrants”. The EU spoke on behalf of EU Members in several other occasions, e.g. in July 2017, and September 2017.

EU delegations can speak on behalf of EU states only when they approve a common position by unanimity (see Gatti 2016). One EU statement delivered during the consultations on the Compact expressly mentions that “these key messages for EU interventions are based on the EU Guidelines agreed in Brussels by CONUN”, i.e. a preparatory body of the EU Council, composed of Member States’ Representatives.

As the EU delegation often spoke on behalf of all EU Member States, one must conclude that each of them has repeatedly approved the EU’s position. This conclusion is not contradicted by the existence of a single EU statement adopted on behalf of “27 EU Member States” in May 2018. This statement presumably did not represent the view of Hungary, which had started to express its dissatisfaction with the Global Compact process since March 2018. According to Melin, the statement of May 2018 suggests that the EU lacked a common position during the negotiations. On the contrary, in my view, it demonstrates that the EU did have a common position until May 2018. The previous EU statements were indeed adopted on behalf of all EU Member States, including Hungary, as noted above. It seems that there was a “common position” between November 2016 and May 2018, but Hungary dissociated from it because it suddenly realised that “migration is an unfavourable and dangerous process”.

One should also note that all the other Member States – including “leavers” such as Austria or Bulgaria – maintained their support for the EU position throughout the process, i.e., until the finalisation of the text of the Global Compact (July 2018). In other words, the EU delegation apparently spoke in their name throughout the negotiation process.  

It was, in fact, common for the Member States to expressly align themselves “with the statement made on behalf of the European Union and its Member States”, see e.g. Bulgaria, Estonia, The Netherlands, Slovenia in May 2017, or Denmark, Finland, Germany, and Slovakia in October 2017. The Member States delivered their own messages too, but they seemed to support the EU’s position, rather than contradicting it (with the exception of Hungary in 2018). For instance, Bulgaria insisted on the rights of the child, by recalling that “Migrant children are children first and foremost. Therefore, they are entitled to all human rights as set out in the UN Convention on the Rights of the Child which must be ensured for them.” Italy also participated in the consultations and aligned itself with the EU positions (e.g. in June 2017). The Italian Prime Minister Giuseppe Conte even delivered a speech to the UN General Assembly in September 2018, affirming that “The migratory phenomena we are facing requires a structured, multilevel, and short-, medium-, and long-term response from the international community as a whole. It is on this basis that we support the Global Compact on migration and refugees” (original video in Italian; translation).

In light of the above, one may argue that significant internal coordination on the Global Compact did take place and there are indeed official documents “proving the common position of the EU and its Member States” (contra, Melin 2018). The European Commission could legitimately conclude in March 2018 that “since 2016, the Union has been strongly and continuously engaged in the process of elaboration of the Global Compact for Migration, delivering EU coordinated statements through the EU delegations in the consultative and stocktaking phase.”  

3. …To Fragmentation

However, the unity of the Union did not last. Notwithstanding the background of cooperation among the Member States and the joint statements behind the EU’s nameplate, several Member States recently decided to abandon the Global Compact process. By doing so, they followed Donald Trump, who decided to quit the Global Compact in December 2017. The US Permanent Representative at the UN justified this decision by alleging that “our decisions on immigration policies must always be made by Americans and Americans alone. We will decide how best to control our borders and who will be allowed to enter our country. The global approach in the New York Declaration is simply not compatible with U.S. sovereignty.”

Several EU Member States used similar arguments and language. The Hungarian foreign minister announced in July 2018 the exit from the Global Compact process, affirming that “this document is totally at odds with the country’s security interests”,  “regards border protection as a human rights issue”, “expands opportunities to lodge complaints with relation to procedures conducted by national authorities”, “and aims to increase receiving capacities”. Austria left the Compact in October 2018 – during its own presidency of the EU – on the grounds that it viewed very critically “the mixing up of seeking protection with labor migration”. The departure of Austria apparently led to a mood change in Europe and a series of other withdrawals.

The Czech Republic left the process in November 2018, alleging that “The Czech Republic has long favored the principle of separating legal and illegal migration” and that the final text of the Compact does not reflect that. Poland also quit the Compact in November 2018, arguing that it “doesn’t meet Polish demands regarding strong guarantees for countries to have the right to independently decide [who] they choose to accept”. Bulgaria left during the same month, apparently because the Compact damages “national interests”. Slovakia’s Prime Minister also stated that his government would “never” accept the Compact because of its take on migration as a generally positive phenomenon. Lastly, the Latvian parliament voted against the Compact at the beginning of December 2018.

The Global Compact was also discussed in several other EU countries, such as Belgium, Croatia, Estonia, and the Netherlands, but they eventually decided to support it. The Netherlands, in particular, will make an “explanation of position in order to prevent misunderstandings” at the UN General Assembly that will endorse the Global Compact.

Italy performed the most spectacular U-turn. Two months after the Prime Minister’s statement at the General Assembly (“we support the Global Compact on migration and refugees”), the Home Affairs Minister, Matteo Salvini, declared that “the Italian government will not sign anything and will not go to Marrakech. The floor of parliament must debate it. The Italian government will allow parliament to decide”. As Mr. Salvini is the strongman of Italy, the Prime Minister took back his statement at the General Assembly, and Italy did not participate in the Marrakesh conference. The Italian Parliament might in principle decide to support the Compact, but that does not appear likely at present.

All in all, nine Member States did not attend the Marrakesh Intergovernmental Conference and consequently did not approve the Global Compact: Austria, Bulgaria, Czech Republic, Estonia, Hungary, Italy, Latvia, Poland, Slovakia (note the Marrakesh credentials report, para 9; Latvia seems to have appointed a representative, perhaps because it decided to pull out at a late stage). Two EU countries might support the Global Compact in the incoming vote at the UN General Assembly: Estonia has announced it will vote in favour, while Italy will possibly vote against it.

It would seem that European populists do not oppose specific elements of the Global Compact but reject its very premises. The New York Declaration of 2016, which launched the Global Compact process, already contained the essential elements that were later criticised by some EU Member States. All EU Member States supported this Declaration and supported the common position of the Union throughout 2017 (in the case of Hungary) and until late 2018 (in the case of the other “leavers”) – sometimes even making autonomous contributions to the debate on the Compact (as in the case of Bulgaria and Italy). Nonetheless, with the coming of autumn 2018, those same Member States suddenly realised that they opposed the Compact, as if they saw it for the first time.

4. A Breach of Loyalty

The Turnaround of EU Member States questions the unity and effectiveness of the EU’s external policy.

To be sure, one should not overemphasise this problem. All EU institutions and Member States have the same top priority: reducing the number of migrants that enter the EU irregularly. Over the last few years, they have been collaborating closely – perhaps too closely – in order to convince other countries to prevent irregular migration to the EU. Notwithstanding the acrimonious debate on the Global Compact, the deals with Turkey, Libya, and Afghanistan are likely to remain in place. Other similar (and problematic) initiatives may be in store (e.g. Regional disembarkation platforms).

The fact remains, at any rate, that the exit of certain EU Member States from the Compact damages the external image of the European Union. After months of consultation when the Union claimed to speak on behalf of all its Member States, several of them decided that the whole process was unacceptable. As the President of the European Commission, Jean-Claude Juncker noted, “if one or two or three countries leave the United Nations migration pact, then we as the EU can’t stand up for our own interests”. By destroying the “unity in the international representation” of the EU (see e.g. Opinion 2/91), EU Member States have arguably violated their duty of sincere cooperation.

It is common for the EU and its Member States to act together at the international level because they have complementary competences in the field of foreign affairs. This is particularly the case in the area of migration seeing as competence is shared by the Union and its Member States. The latter may therefore exercise their competences until the adoption of common rules by the Union. And the Union has not entirely “occupied the field” in this ambit. The Global Compact, in particular, has a broad substantive scope and affects issues falling within the scope of EU competences but also of Member States’ competences (García Andrade 2018). As the principle of attribution of competences seems to apply to binding and non-binding instruments (see, by analogy, CJEU, Swiss Memorandum), both the EU and Member States should have participated in the consultations regarding the Compact, and have indeed done so in practice. One should also add that the Modalities for Intergovernmental Negotiations of the Global Compact enabled “states” – and not the EU – to approve the Compact at the Marrakesh conference. Furthermore, the Compact will be approved by the UN General Assembly, where only states are represented, and the EU is merely an observer. In short, the EU could coordinate the positions of the Member States during the consultations on the Global Compact and could deliver statements about it, but could not approve it. Only the Member States had the power to vote on the Compact.

This is not to say that EU Member States were free to act as they pleased during the negotiation and approval of the Global Compact. EU Member States are obliged to “facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.” Therefore, according to the Court of Justice, when EU Member States agree on a “common strategy” to be adopted at the international level, they are later bound to respect it – even when they act as individual Member States (PFOS, para 91).

All EU Member States have repeatedly approved common EU positions, and these positions are reflected in the content of the Global Compact. Therefore, one could expect EU Member States to approve the Compact, or, at least, to disagree only with those aspects of the Compact that had not been discussed at the EU level. However, some EU Member States rejected the Global Compact as a whole and questioned its very raison d’etre, thereby disregarding all the statements made by the EU in 2017 and 2018.

The characterisation of the Compact as a non-binding document does not diminish the obligation to take EU statements seriously. Non-binding arrangements may constitute measures through which “the Union’s policy is made and its external action planned” (CJEU, Swiss Memorandum, para. 40). The dissociation of certain EU Member States from the EU’s policy may constitute a violation of the duty of sincere cooperation, in so far as it has clear “consequences for the Union” (PFOS, para 92). In the case of the Global Compact, the most obvious consequence is that the unity of the EU’s international representation was shattered.

The EU Member States that quit the Compact have arguably acted in bad faith. They spent months in consultations, approved the EU position in several circumstances…and eventually rejected the whole process. Instead of assisting the Union in carrying out its tasks, they jeopardised the attainment of the Union’s objectives. The dissenting parties arguably acted in violation of their duty of loyalty to the Union.

5. Limits to the Judicial Enforcement of Loyalty

Although some EU Member State might have been less than loyal to the Union, their disloyalty is unlikely to be sanctioned by the Court of Justice. The European Commission could, in theory, bring an infringement procedure against the “leavers”, but this would not achieve much. The Court might perhaps declare that the “leavers” violated their duty of loyalty by rejecting the entire Global Compact and leaving the process all of a sudden. However, those Member States would likely retain the ability to leave, as the Global Compact contains elements that were not subject to previous coordination within the EU, and that EU states may legitimately reject. In any event, the Court would not be able to compel EU countries to join the Global Compact.

The judicial enforcement of the duty of loyalty would perhaps be easier if the Council had formally approved the Global Compact, as the Commission proposed in March 2018. The Council could have adopted the Commission’s proposal by majority, but decided not to do it, perhaps because it saw the proposal as a Commission’s attempt at grabbing the Member States’ power. The Commission had indeed asked to be authorised to approve the Compact “on behalf of the Union”, while it was expected that only the “states” participating in the Marrakesh conference would have voted on the Compact (see the Modalities of December 2017; see also the Modalities of July 2018 rule 34; cf. rule 63 rule 34). Be that as it may, the Commission’s proposal was not adopted, and was eventually withdrawn. As a result, the position of the Union remains fragmented in a series of diplomatic statements, that the Member States should in principle respect, but whose violation might be difficult to sanction at the judicial level.

When judicial means of enforcement are inadequate, it is customary to argue that political negotiations are in order. Unfortunately, a negotiation with European populists might prove futile, as they seem unconcerned with policy considerations.

6. Futility of Negotiations with European Populists

The position of the governments that abandoned the Global Compact may appear surreal. They are associating the Compact with concepts that are unrelated to it, such as threats to sovereignty, the human right to migration, or the lack of distinction between regular and irregular migration. Even a cursory reading of the Compact would show that it “upholds the sovereignty of States”, reaffirms “the sovereign right of States to determine their national migration policy” and their prerogative to “distinguish between regular and irregular migration status” (see further Carrera et al. 2018). The UN Special Representative for International Migration Louise Arbour is right when she argues that the Compact cannot be “an infringement on state sovereignty”, because “it is not legally binding, it’s a framework for cooperation.” And it could be argued that, as Jean-Claude Juncker said, “those countries that decided they are leaving the UN migration compact, had they read it, they would not have done it”.

However, it may be doubted whether populists have any interest in reading the Compact. From their viewpoint, the problem does not seem to lie with the commitments contained in this document, but with its objective: “making migration work for all” (para. 5). The main message of the Compact is perhaps that migration can and should be managed – not simply repressed. Populists believe otherwise. The Hungarian foreign minister candidly admitted it: the fundamental premise of the Compact is that migration is an unavoidable phenomenon, but the Hungarian Government “regards this premise as unacceptable” and regard migration “as a bad process that has extremely serious security aspects”.  

European populists do not seem to have a problem with the Global Compact on Migration, they have a problem with migration as such – and with migrants, foreigners, and minorities at large. If one acknowledges this perspective, the surrealist stance of European populists becomes comprehensible. The exit from the Global Compact is not a policy choice related to the content of this document. It is nothing more than populist propaganda, that can hardly be negotiated away. Though EU populist governments have probably violated their duty of loyalty to the EU by dissociating themselves from the Global Compact, little can be done to bring them back to the fold, either at the judicial level or at the political one.