Blog: ‘Why EU member states should not hesitate to vote for the Global Compact for Migration’

In this blog, Asser researcher Dr Narin Idriz explains the Global Compact for Migration, sometimes wrongly called the Marrakech Treaty 2018. The compact is a non-binding UN agreement on a common approach to international migration to be adopted on 10-11 December 2018 and has attracted a lot of debate.

In the last few weeks, one after another EU member state raised concerns about the possible future implications of the Global Compact for Safe, Orderly and Regular Migration (GCM). The compact is expected to be adopted on 10-11 December in Marrakech under the auspices of the UN General Assembly. The Netherlands joined the caravan of hesitant states last week when its Parliament (Tweede Kamer) decided to hold a debate on the compact in the week preceding its adoption. Partially responsible for this scepticism is the inability of the government and its minister for migration to come up with the technical report that should provide clarification on the legal nature and possible future implications of the compact.

What is a compact and what does the GCM contain?
A compact is a legally non-binding agreement between states. Other language versions of the document use the word "pact'' such as ''migratiepact'' in Dutch, ''pacte mondial'' in French, and ''globaler pakt'' in German.

The GCM is a framework for cooperation for states to manage migration. It contains 23 objectives to achieve, a part on implementation, as well as one on follow-up and review. The gist of the document is contained under the title ''Objectives and commitments'', which lists the specific objectives to be achieved. Under each of the objectives, there is statement of commitment which is followed by a set of specific actions that states might need to (choose to) take in order to achieve that objective. For instance Objective 3 reads as follows: ''Provide accurate and timely information at all stages of migration''. One of the specific actions mentioned to achieve that objective would be to launch a publicly accessible national website that will provide information on the regular (legal) migration options, visa requirements, employment permit requirements... etc.

Where did the idea of a compact on migration come from?
The so-called ''refugee crisis'' of 2015, triggered by the Syrian civil war, acted as a catalyst for the compact. The UN General Assembly hosted a summit in New York on 19 September 2016 to talk about future cooperation and sharing of responsibility in similar cases of mass movement and displacement. The results of the discussions were the unanimous adoption of the New York Declaration for Refugees and Migrants and the decision to work on two compacts: one on refugees and a second one on migration. While the Global Compact on Refugees was to be proposed by UNHCR following consultations with UN member states and other relevant stakeholders, the preparation of the Global Compact on Migration was a state driven process. Even though civil society organizations were able to provide input during the negotiations, the final text of the GCM is the result of six rounds of inter-governmental negotiations that took place this year. As it goes with negotiations that involve so many states, the resulting text accommodates all positions and represents the lowest common denominator.

Why was there need for two compacts?
Because there is already a specific legal regime covering asylum and the rights of refugees, that is the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol. There are 142 states party to both the Convention and its Protocol, and 148 states party to only one of them. In contrast, there is no such comprehensive and authoritative agreement in the area of migration with such wide following. This does not mean that there are not any instruments dealing with the rights of migrants: the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the conventions concluded under the auspices of the International Labour Organization are important. However, the former has 51 signatory states none of which is from the global North, while the latter has conventions that cover strictly delineated issue areas, such as equal remuneration (Convention No. 100) and abolition of forced labour (Convention No. 105). In short, the starting points of the two compacts were very different, with no single comprehensive agreement covering the area of migration.

Does the compact create new rights and obligations? Can it lead to the creation of new rights and obligations over time?
The compact does not create any new rights. The preamble to the document explains that it rests on existing international human rights instruments, such as the Universal Declaration on Human Rights, the International Covenants on Civil and Political Rights and Economic Social and Cultural Rights.

None of the 23 objectives contains the words ''right'' or ''rights''. The objectives can be seen as guidelines or code of conduct for states to ensure migration happens in a safe, orderly, and regular (read legal) manner. The states need to facilitate that for instance, by providing information on possible ways of legal migration (objective 3), by issuing the necessary documentation (objective 4), by facilitating the mutual recognition of qualifications and skills (objective 18), as well as by cooperating in the return and readmission of their nationals (objective 21). While no specific ''rights'' are mentioned as such in the objectives, there is plenty of reference to general human rights and international human rights law throughout the document.

As to whether the compact can lead to the creation of new rights and obligations over time, this is not very likely given the current hostile climate on the issue in the ''developed world''. However, it can also not be excluded categorically. If the majority of states take the objectives of the compact seriously, work consistently to achieve them, and are ready at a future point in time to adopt a document with teeth (binding legal obligations), then, one could argue with hindsight, that the compact had served as a stepping-stone to the creation of rights and obligations for the protection of migrants.

Is the compact devoid of any legal effect?
The compact is a ''soft law'' instrument: it is not legally binding. However, that does not mean that it will be devoid of any legal effect. While individuals will not be able to rely on this document alone to invoke any specific rights, in jurisdictions where the judges are open to using international law instruments in the interpretation of domestic law, the document could be used when the provisions of a domestic piece of legislation are vague and inconclusive.

Whether that would be likely and necessary in EU member states is another matter, since many provisions of the EU Charter of Fundamental Rights, as well as the European Convention on Human Rights already provide protection for those present on the territories of member states irrespective of their immigration status. Under the chapters on ''Dignity'' and ''Freedoms'', the Charter enshrines the inviolability of human dignity, the right to life and the integrity of the person, prohibition of torture, inhuman and degrading treatment, prohibition of slavery and forced labour, right to liberty and security, respect for private and family life... etc. In the existence of binding legal norms providing extensive protection for individual rights at EU level, there will be no need for migrants to rely on the compact. In this respect, the added value of the compact will be much greater in the global South, where no such protection is available.

Does the compact represent the interests of the South?
The document is quite balanced. One of its guiding principles is ''national sovereignty''. The GCM ''reaffirms the sovereign right of states to determine their national migration policy'', and to ''distinguish between regular and irregular migration status'' (para. 15). It also acknowledges, ''nationals and regular migrants may be entitled to more comprehensive service provisions'' (para. 31).

While the document represents the interests of both the global South as well as the North, undoubtedly, it will require more work on the part of the former, i.e. developing and less developed countries. As far as member states of the EU are concerned, they have already taken part in actions to achieve most of these objectives at the EU level. A closer look at the European Agenda on Migration, which lays down the EU's response to the mass movement of people in 2015, reveals the big overlaps and similarities. To cite few of the most obvious overlaps, strengthening the transnational response to smuggling migrants (objective 9); preventing, combating and eradicating trafficking of persons in the context of international migration (objective 10); and managing borders in an integrated, secure and coordinated manner (objective 11).

The text under objective 11 could have been from an EU document. It provides, ''We commit to manage our national borders in a coordinated manner, promoting bilateral and regional cooperation, ensuring security of States, communities and migrants, and facilitating safe and regular cross-border movements of people while preventing irregular migration'' [emphasis added]. (para. 27)

Similarly, objective 21 provides for cooperation in facilitating safe and dignified return and readmission, another EU priority. The EU has been working very hard since 1999 (when it acquired competences in the area of ''visa, asylum, and immigration'') to convince its neighbours and countries of origin and transit to sign Readmission Agreements, which would make it possible for the EU to swiftly return people who have been established to be illegally present on its territory. No EU member state would object if the following commitment in the compact were binding: ''We further commit to ensure that our nationals are duly received and readmitted, in full respect for the human right to return to one's own country and the obligation of States to readmit their own nationals.'' (para. 21)

What does the South gain from the compact? It mainly ensures that its people are treated humanely, in line with existing human rights standards. The other side of the coin on objective 21 is that the returning states commit ''to guarantee dues process, individual assessment and effective remedy'' and uphold the prohibition of collective expulsion. Again, the EU already has binding rules in place to ensure that's the case (see the Return directive).

Which of the objectives of the compact do EU member states find objectionable?
Different states might find a different objective objectionable. While smaller and poorer EU member states might be concerned with the financial costs objective 15 could entail (''Provide access to basic services for migrants''), others might be more worried about the implications of objective 5 (''Enhance availability and flexibility of pathways for regular migration'').

While objective 15 commits states to provide ''safe access to basic services'', it does not define what these services precisely are, which gives the states the freedom to determine that. What is ''basic'' for a one state will obviously be different from what it means for another. What is important is not to discriminate on the grounds of race, colour, sex, language, religion or other grounds ''irrespective of cases where differential provision of services based on migration status might apply'' (para. 31(a)). In the EU, there is already a Directive on Reception Conditions for individuals that have applied for international protection that specifies what kind of rights these individuals can claim in terms of employment, schooling or healthcare. However, it should be noted that this Directive does not apply to those who are not seeking international protection.

As to objective 5, that is a promise that the EU and its member states have been making for quite a while, mostly due to their joint or individual efforts to convince third countries to sign Readmission Agreements. The latest Commission proposal in the area of labour migration, which purports to meet that objective, covers mainly the reform of the Blue Card Directive, which concerns only the access of highly qualified Third-Country Nationals (non-EU nationals) to the labour market. The reason why the EU is not able to do much in this area is because under Art. 79(5) of the Treaty on the Functioning of the European Union (TFEU) member states have exclusive competence to decide on the number of Third-Country Nationals they admit into their territory for the purposes of employment or self-employment. In short, EU member states are the ultimate authority to decide on the matter. If past promises and pressure from the EU has not worked to convince member states to create new legal employment possibilities for non-EU nationals, a non-binding instrument is not very likely to do so.

Conclusion - Why should the EU member states vote in favour of the compact?
Firstly, because it is an important instrument that creates framework for cooperation between the global North and global South. It is by now clear that no single State or region is capable of dealing with the challenges and opportunities migration brings.

Secondly, it is important because actions speak more than words. In the past years, the EU has been working very hard to convince states of origin and transit to cooperate to manage migration. It has created and engaged in all kinds of regional dialogues and processes (such as the Rabat and Khartoum processes) to achieve that purpose. In 2016, it has created a new Migration Partnership Framework using bilateral compacts. Given all the efforts of the EU in this area, it does not make much sense for its member states to shy away from such a global initiative. In addition, as already stated above, the EU member states need to do much less in terms of achieving the 23 objectives, as most of those are already covered at the EU level.

Last but not least, the compact supports regional mobility initiatives as well as the facilitation of mutual recognition of qualification and skills, areas in which the EU has decades of experience. The EU should share its experience with other regions that are willing to replicate it. Only by working together can states manage to keep migration under control and reap its benefits.

Further reading
For more research publications on this topic by Dr Idriz click here.

Dr Idriz is part of the Asser research strand Human Dignity and Human Security in International and European Law. This research strand adopts a human rights approach to global challenges in the field of counter-terrorism, international criminal law, international humanitarian law, international trade, environmental protection, European private international law, and the law of EU external relations. It examines what it means to safeguard human dignity - also in relation to human security - in these areas.