Governance and the UN Global Compact on Migration: Just another Soft Law Cooperation Framework or a New Legal Regime governing International Migration?

Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

Does the UN Global Compact for Safe, Orderly and Regular Migration (GCM) fulfill the criteria of a legal regime for international migration or is it just another soft law cooperation framework amidst many? If the GCM is merely a cooperation framework, then what is its contribution to international migration law (IML)? Is it limited to institutional questions, including the quality of follow-up, monitoring and review? What does it mean to ascribe the GCM a “governance capacity”? Does “governance”, as a counter concept to government, feature at the same time as an antidote to anarchy, so that the GCM could be fashioned as the complement to the “missing regime” of IML?

To resolve the ambiguity over the GCM’s governance ambition means for one to reply to the question posed by Aleinikoff in 2007, i.e. to what extent the GCM provides for the long-sought after “architecture” to govern the “substance” of IML. To respond to the challenge secondly means to uncover to what extent the GCM has overcome the “anarchy” underlying the fragmented state of IML, also called the “piecemeal approach” (Opeskin et al. 2012). This approach allowed States in the Global North to keep national sovereignty over territory and borders untouched by design, but also for few exceptions of multilateral cooperation on service providers in the General Agreement on Trade in Services (GATS) and regional schemes on free movement of persons. However, the “management” of population flows from sending countries has led to uncertain outcomes for the protection of migrants’ rights, while rendering their entitlements an often-neglected legal category in international law.

In this post, we will provide a first appraisal of whether the GCM has governance potential – a capacity which may move it beyond the mere “international cooperation framework”, designed by GCM drafters.

Our point of departure are the Report of the UN Secretary-General “In Safety and Dignity: Addressing Large Movement of Refugees and Migrants” and the so-called Sutherland Report, accompanying the GCM negotiations. The Sutherland Report repeatedly held that the GCM is a meant to be a cooperation framework among States, aimed to “enhance the governance capacity” of States – a statement that delegates regulatory activity and responsibility back to States and upholds a model of state-centric and state-led governance. However, the status of the Compact cannot be so simplistically archived (Gammeltoft-Hansen et al. 2017, Guild and Grant, 2017). The situation is more complex, for three main reasons. First, while the GCM is considered as just another soft law cooperation framework, it puts forward “actionable commitments” and “interconnectedness”, so that States are under a duty to come up with national and regional implementation plans, which will be regularly monitored and reviewed; the governance model thereby conceived is multi-level and multi-centered. Second, the GCM has been crafted as a specific reaction to the European migratory crisis, to provide operational strategies enhancing global solidarity and burden-sharing, while introducing a “common vision”. Third, it puts forward infrastructural changes in the global migration governance.

Actionable Commitments and Interconnectedness

The legal nature of the GCM’s actionable commitments may be telling as regards the possibility for a soft law cooperation framework to be prescriptive enough to amount to more than “cooperation”. Does the GCM’s actionable commitments qualify for “regulating” international migration, or does its commitments rather “re-state” the law or amount to the sum of collected bilateral, transregional, international cooperation practices, without adding any legally binding substantive content?

In the GCM, “good” governance is referred several times as a prime organizational principle. At the same time, the document refers to initiating and strengthening cooperation on international migration through a combination of “political declarations and a set [actionable] commitments” (para. 16). According to para. 5, “[t]he Global Compact […] requires international, regional and bilateral cooperation and dialogue. Its authority rests on its consensual nature, credibility, collective ownership, joint implementation, follow-up and review.”

The GCM aspires to 360-degree vision of international migration, which means that the “guiding principles” are “cross-cutting and interdependent”. States are invited to maximize the interlinkages between domestic and foreign policies on migration, to enhance the mutual supportiveness among migration-specific policies (e.g. labour migration with diaspora entrepreneurship) and to increase the coherence of migration towards non-migration-specific policies (trade, education, energy, investment). At the same time, the model adopted by the GCM is one of evidence-based governance with informal participation of non-state stakeholders. Governments are encouraged to engage in what amounts to a state-led process to gather empirical findings and collect data to create a collective memory of international cooperation on migration and construct a common narrative reconciling the migration policies of the Global South with those of industrialized countries. The States’ facts-based collection of evidence, practices, norms and policies condenses into guiding principles, which inform the 23 objectives, to be implemented by actionable commitments. These commitments are monitored regionally, nationally and bilaterally.

In so doing, the GCM interconnects different actors, layers and rules of IML. However, it leaves open the rationale for “interconnectedness” and fails to install sufficient guarantees against its misuse. If refashioned as a tool of conditionality by State practice, this “interconnectedness” may cast non-migration specific policies – such as trade, development aid, security policy – as kickbacks to reward countries of the Global South that are willing to sign up onto the externalization of migration policies by border shifting, pull-backs and other non-arrival cooperative strategies (Lavenex 2016; Vitiello 2018). If unchecked, “interconnectedness” may become a catalyst for externalization and, thus, an antagonist to “good” governance and the beneficiaries of issue-linkages, who will be unable to benefit from the policy proximities between visa and labor migration, between trade preferences and opening of legal pathways.

Common Vision and Infrastructural Changes

Other elements to consider when assessing the added value of the GCM are its historical triggers and the infrastructure it creates.

Regarding the first element, it should be acknowledged that behind the 2016 New York Declaration stood the dissatisfaction of key EU Member States (such as Germany and France) with the dysfunctional Dublin “first-country of irregular entry” regime, alongside the frustration over various attempts of “de-couplings” from the Union, by other EU Member States, such as Hungary and the Slovakia. These attempts include the refusal to adopt and implement the EU relocation decisions; or – in the case of Italy and Greece – the so-called “wave-through approach”, putting at peril the freedom of circulation within the Schengen area. Therefore, the GCM was presented as an instrument aimed at installing, at global level, a solidarity mechanism which could re-instore the functionality of the EU level solidarity mechanisms by “actionable commitments”, grounding on cooperation among national, local, regional and global levels, in the form of bilateral arrangements, regional trade or association agreements, intra-regional integration or trans-regional frameworks, organized around a “unity of purpose” and “shared responsibilities”. In this vein, para. 14 of the GCM expressly links the fruitful outcome of the cooperative framework to “mutual trust, determination and solidarity of States to fulfill the objectives and commitments contained in this Global Compact” – i.e. to the principles which govern the cooperation among EU Member States within the Area of Freedom, Security and Justice (Vitiello 2018).

However, none of the cooperation methods clarify how to connect distinct levels to each other. Neither the solidarity principle, nor the subsidiarity principle and the principle of loyal cooperation are elected as overarching principles steering the connection between the different intergovernmental modes of cooperation (bilateral, regional, transregional) and the global level. Therefore, the modality of transfer of decision-making authority from the regional, national, transregional levels to the global level will have to be tested at the implementing stage to see whether they reach the threshold of mutual supportiveness which seems necessary for the GCM to create a fully-fledged international migration regime.

Regarding the second element, one of the key triggers of fragmentation in IML is linked to the circumstance that “existing international institutions […] are unable or unwilling to extend their mandates, often enter into competition with one another when they do, and fail to cooperate on even the most basic of issues such as common terminology or shared access to data on migration” (Koser 2010). While Objective 2 of the GCM remedied to non-cooperation in data sharing, the Compact also curbs institutional competition with the IOM joining the UN family. Indeed, it has to be recalled that, during the negotiations, the IOM – formerly a state-led agency coordinating government mandates focusing in particular on assisted and voluntary returns – was transformed by the UN General Assembly’s Modalities Document into a UN “related organization”.

If IOM were to become the implementing agency of the GCM, the strengthening of its role in providing the “infrastructure” for the GCM would have buttressed the global level’s autonomy in migration management by way of further unifying the formerly fragmented legal-institutional architecture (Angenendt and Koch 2017). However, the underlying argument of institutional “tug-of-war” or overlapping mandates continues with UNHCR and IOM representing each the institutional structure for the Global Compact on Refugees and the GCM respectively – a fact that has been repeatedly criticized as doing disservice to mixed migration flows, while contributing to the blurring of the refugee with the labor migrant categories, in light of some recent policy initiatives such as refugee employment in export-based labor facilitated by preferential trading schemes (Panizzon 2018).

Conclusions

 Whereas conceiving of the GCM as promoting a multi-level governance (MLG) model of international migrations seems straightforward (Panizzon 2018), several challenges have surfaced.

As regards the implementation of rules, the MLG model surmises that the different levels, actors and norms interact (Zielonka 2007). However, in the GCM, the interactions among the levels are not “programmed” around operational principles, so that solidarity and fair-sharing may occur rather by happenstance than by design. As a consequence, a key definitional element for conceptualizing the GCM as the “infrastructure” allowing state-led decision-making to embrace a programmatic vision of a global regime of IML, seems absent. For example, Objective 2 promotes the minimization of the adverse drivers and structural factors that compel people to leave their country by (inter alia) “the implementation of the 2030 Agenda for Sustainable Development, including the Sustainable Development Goals”. Yet, it remains unclear whether the GCM is in “mutual support” of the UN Sustainable Development Goals or what the hierarchical and functional relationship is. By contrast, there seems to be more clarity on the “territorial” multi-levelness of the GCM, since it encourages, in Objective 3, systemic “bilateral, regional and international cooperation” between States to exchange data, trends and information. However, a clear commitment to subsidiarity or proximity or mutual supportiveness is missing. Hence, in practice, territorial layers may also fail to effectively “connect”, or “talk to each other”.

As regards the production of rules, the zero-draft preceding the final text had opted for a networked type of connection between the GCM and other soft law tools. On the contrary, the final text establishes a more precise clear-cut hierarchy between the national and the international, whereby States remain in charge of adopting these soft law tools and “other layers” of monitoring and reviewing the process. This is evident, for instance, in the terminological shifting characterizing Objective 2, where the original expression “[p]romot[ing] the operationalization of the 2030 Agenda for Sustainable Development” has been changed in “[p]romot[ing] the implementation of the 2030 Agenda for Sustainable Development” (emphasis added). The same process of re-centralization of State power and authority over norm-creation is also evident in relation to labor mobility (Objective 6) and vulnerability in migration (Objective 7). In both cases, the original wording (i.e. “promote the operationalization”) has been replaced with reference to the development of national policies to improve national responses that address the needs of migrants, “including by taking into consideration” relevant international soft law instruments (emphasis added).

That being said, and notwithstanding the persistence of asymmetries and fragmentation, it can be still maintained that the GCM cannot be simplistically coined as just another soft law cooperation framework amidst many. All its “transitional” features and ambiguities may render it, instead, an interesting laboratory to test new strategies to address the “architectural challenges” of IML, while renouncing to a monolithic legal regime (Chetail 2017). However, to attain this result, without exploding the intrinsic tensions underpinning the regulation of international human mobility, a common denominator is indispensable, and it cannot but be the principle of solidarity and fair sharing of responsibility in the governance of large-scale movements of human beings.