Legislating by Compacts? – The Legal Nature of the Global Compacts

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?

It is not usual to have UN documents splashed across the first pages of the world, exciting animadversion among politicians not known for their respect or knowledge of international law and heated exchanges on the social media; governments (well: one!) collapsing over them; or even having actors read through each word of them on national television. The Global Compact for Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) were stars long before they were formally approved by the 73rd UN General Assembly. With the final text decided a month earlier, the GCR was approved on 17 December 2018 as part of an omnibus resolution on the work of the Office of the UN High Commissioner for Refugees (UNHCR) and with an overwhelming majority (181/2/3): only Hungary and the US voted against, with the Dominican Republic, Eritrea and Libya abstaining. After a highly publicized and politicized gathering in Marrakesh (10-11 December 2018), the GCM was approved by the General Assembly on 19 December 2018 with a less impressive majority (152/5/12): The Czech Republic, Israel and Poland joined the nay-sayers and a dozen others, among which five Member States of the European Union (EU) and Switzerland abstained, the last embarrassingly enough being with Mexico one of the co-convenors of the intergovernmental process leading to its adoption. Both Global Compacts are the product of a political commitment, reflected in the New York Declaration on Refugees and Migrants adopted by the UN General Assembly on 19 September 2016, and they constitute the latest acts in a process of rethinking the norms and procedures governing the management of human mobility. Both Compacts proclaim themselves as non-legally binding, the result of a wide cooperative effort among governments and between governments and civil society. The discussion on their legal nature could surely have stopped here. And yet it goes on – even in this blog.

The Form

It is clear under Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties that an international agreement does not need to have a specific format to make it binding. In reverse, the choice of form does not make a document non-binding by that reason alone. However, it is equally clear that in recent times the term ‘compact’ has been increasingly used to denote soft law instruments, indicative more of a symbolic, rather panegyric declaration of principles and goodwill than a legally binding expression of will. The most significant and earliest such example is the 2000 UN Global Compact. Proposed by UN Secretary-General Kofi Annan and addressed not only to States but also to corporations, individuals and civil society, it was built on principles and values reflected in legally binding instruments on human rights, labour, environment and corruption (of both the treaty and customary law variety), converting them into strategies, policies and procedures applicable to all in real-life conditions. This hybrid approach had two advantages. First, it transliterated formally binding (State) obligations into smaller bites of (occasionally: innovative) compliant conduct by non-State actors, setting aside any discussion about their normative character and thus any worries as to their precedential value. Second, it allowed the fundamental principles enshrined in formal expressions of the will by the States to disperse, disseminate and ultimately be adopted as their own by private actors at the sub-state level, thus ensuring in practice their widest proliferation. The perceived success of that experiment led to the recently launched Global Pact on the Environment – as indeed in the procedure leading to the two Compacts currently under discussion.

It is not to be assumed that such ‘success’ was unadulterated, since it raises a number of important questions relating directly to the foundations of international law-making. On the one hand, this could be considered a ruse, using the non-binding format to codify (and indeed: develop) general principles of major importance where the will for contractual arrangements is manifestly lacking among States. The underlying idea is that the soft law aspects of such attempts would make the ultimate goal of regulatory reform more palatable by a process of familiarization. The French-led initiative to convert the non-binding Global Pact on the Environment, a document originally drafted, debated and approved by a group of international law scholars (in full disclosure: the present author included), first to a UN General Assembly resolution (Res A/72/277) and then to a legally binding treaty, could be seen as confirming such worries.

On the other hand, there are equally dire warnings: For, the argument goes, surely the inclusion of legally binding principles and norms in non-binding declarations could constitute a diminution of their mandatory character, a regression in terms of normative effect. The inevitable rephrasing of generally accepted principles of international law during this banalization process would impact upon their exact content to be found in treaties or even in the jurisprudence of international courts and tribunals. And, perhaps more damaging in the long-term, would the acceptance of any such changes not constitute a tacit amendment of contractual obligations or lead to the creation of customary norms with content distinct from their contractual counterparts?

In form, the GCR was negotiated under the auspices of the UNHCR and the final text was agreed by the General Assembly on 13 November 2018 with 176 votes in favour and 1 (the US) against. It is therefore easily recognizable as the product of an internal debate within the UN family, a soft law instrument building upon a solid normative foundation. In contrast, the GCM, the text of which was adopted with pomp and circumstance by an Intergovernmental Conference in Marrakesh, is “the first intergovernmentally negotiated agreement under UN auspices to cover all dimensions of international migration in a holistic and comprehensive manner”. As such, it does seem to acquire significance clearly not commensurate to its rather low regulatory threshold. Still, both Compacts were eventually formally and finally adopted as UN General Assembly resolutions in December 2018.

The Content

In text, both Compacts rely on a concept of a unified world, roughly corresponding to a globalized economy, where citizens and consumers are to move freely beyond borders. In the GCR, this derives from the realization that by definition refugee movements involve necessarily more than a single State or even two States with a common border and thus call for the application of “the principles of solidarity and cooperation” in “arrangements that are intended to be efficient, effective and practicable” (para. 16 GCR). In the GCM, it is reflected in migration understood as leverage for the achievement of the Sustainable Development Goals, a rational choice rather than a financial necessity (para. 8 GCM). The idea of migration as a positive feature, a potential for growth rather than a threat to the receiving societies constitutes a significant departure from the idea of migration as a human tragedy. This shift in emphasis is considered objectionable by the governments rejecting the GCM, where opposition to such an idea is clearly reflected in the prevailing political environment in these countries.

Yet, the two Global Compacts are quite distinct in substance as they start from a different normative framework. The GCR builds on the existing rules of refugee law and especially the 1951 Geneva Convention on the Status of Refugees as well as on human rights and humanitarian law (para. 4 GCR). It does not purport to enunciate new rules and principles; indeed, as per Assistant High Commissioner for Protection, Volker Türk, it has very consciously moved away from the controversies of the field. Instead, it has concentrated on the fundamental notion of burden- and responsibility-sharing, presenting itself as a non-binding operational tool to bolster cooperation between States and between States and the society as a whole, on the basis of a delicately wrought institutional design comprised of both generic agreements and situation-specific commitments.

The GCM also describes itself as a ‘cooperative framework’, further specified in 23 objectives, covering the whole cycle of migratory movements: the preparation stage (Objectives 3, 4, 12, 14); the actual movement stage, with emphasis placed on the new idea of a stable and well-managed borders (Objective 11) and a clear distinction between regular and irregular migration (Objectives 7, 8, 9, 10 and 13); the integration stage (Objectives 15-18); and finally the return stage, i.e. the very real possibility that migratory flows may actually be reversible (Objective 20-22). Indeed, one could argue that the GCM actually reinforces the temporary or circular character of migration and prioritizes as the ultimate goal the final return to the country of origin. In contrast, it does not enunciate a right of free movement. The implied favour towards open borders (Objective 5) is tempered by the central role given to State sovereignty, most notably in its Guiding Principles, and the clearly-stated ability of all States to freely decide on both the availability of regular migratory avenues and the proper policing of irregular migration routes, a freedom only constrained by rule-of-law obligations (para. 15 GCM). All this places the exercise of State discretion firmly within the parameters of international human rights protection in a people-centred, gender-responsive and child-sensitive manner.

The Context

In the absence of other decisive characteristics, one has to return to the will of the States. The idea of State sovereignty is central to both documents and has been repeatedly expressed during the lengthy negotiation process, most notably by the EU. Ironically, it was that same lengthy and transparent process that gave ample time to opponents of the texts to politicize the domestic debate and convert relatively obscure texts into a grand political controversy. Indeed, the very idea, floated by certain parties, of having a debate in the parliament on the issue would have served as an indication of the willingness of that State to be bound by rules and obligations implicitly recognised as novel and meritorious of parliamentary scrutiny and constitutional assent. As things stand for the time being and despite the media blitz, there is nothing sufficiently novel therein to cause such concern. International law has means and ways to evolve over time, most importantly through action in political fora and procedures such as those established under both Compacts. Yet, we are still a long way from any indication that the States concerned would take such mechanisms seriously and would endow them with flesh, let alone teeth.