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1
OF HUMAN RIGHTS AND HUMANITARIAN LAW
WHAT IS A COMPACT?
Migrants’ Rights and State Responsibilities Regarding
the Design of the UN Global Compact for Safe, Orderly
and Regular Migration
AUTHORS:
Thomas Gammeltoft-Hansen, Elspeth Guild,
Violeta Moreno-Lax, Marion Panizzon, Isobel Roele
2
AUTHORS
Thomas Gammeltoft Hansen: Thomas Gammeltoft-Hansen is Research Director at
the Raoul Wallenberg Institute of Human Rights and Humanitarian Law and adjunct Professor
of Law at Aarhus University. He received his PhD (in international law) from Aarhus University,
MSc (in refugee studies) from the University of Oxford and MA (in political science) from the
University of Copenhagen.
His research focuses on international refugee law, human rights, and the relationship
between international law and politics. He is author or editor of several books, including
Access to Asylum: International Refugee Law and the Globalisation of Migration Control
(Cambridge University Press, 2011), which received the 2013 KG Idman Award for best
publication in international law, Tracing the Roles of Soft Law in Human Rights
(Oxford University Press, 2016); The Power of Legality: International Law and its Practices
(Cambridge University Press 2016); Human Rights and the Dark Side of Globalisation
(Routledge, 2016) Protecting the Rights of Others (DJØF, 2013), The Migration Industry:
The Commercialisation of International Migration (Routledge, 2013), and Sovereignty
Games: Instrumentalizing State Sovereignty in Europe and Beyond (Palgrave, 2008). He is
also series editor of the Routledge Studies in Human Rights and part of the editorial board
for Cambridge Asylum and Migration Studies.
Elspeth Guild: Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary,
University of London as well as at the Radboud University Nijmegen, Netherlands. She is
also a partner at the London law rm, Kingsley Napley and an associate senior research
fellow at the Centre for European Policy Studies, Brussels. She is also a visiting Professor
at the College of Europe, Bruges. She was special advisor to the House of Lords European
Union Committee’s Inquiry into Economic Migration in 2005.
Her interests and expertise lies primarily in the area of EU law, in particular EU Justice and
Home Aairs (including immigration, asylum, border controls, criminal law and police and
judicial cooperation in criminal matters). She also researches EU privacy and data protec-
tion law and the nexus with human rights. She co-ordinates the European Commission’s
Network of Experts on Free Movement of Workers which the Radboud University manages,
bringing together academic experts from the 27 Member States providing national reports
annually on the implementation of EU law in the Member States, thematic reports, regional
conferences and a national conference each year. She is also co-editor of the European
Journal of Migration and Law and Free Movement of Workers (the European Commission’s
on-line journal) and on the editorial board of the journal International Political Sociology. She
is co-editor of the book series Immigration and Asylum Law and Policy in Europe published
by Martinus Nijho.
Violeta Moreno-Lax: Dr. Violeta Moreno-Lax is Senior Lecturer (Associate Professor) in
Law, Founding Director of the Immigration Law programme, and inaugural co-Director and
co-founder of the Centre for European and International Legal Aairs (CEILA) at Queen
Mary University of London. She is also a Visiting Professor at the College of Europe, a
Fellow of the Centre of European Law of King’s College London, EU Asylum Law Coordinator
at the Refugee Law Initiative of the University of London, Co-Chair of The Refugee Law
Observatory, Co-convener of the Society of Legal Scholars (SLS) Migration Law Section,
3
and member of the Steering Committee of the Migration Law Network. Before coming to
Queen Mary, she was a Lecturer in Law at the Universities of Liverpool (2012-13) and Oxford
(2011-12). She has held visiting positions at the Universities of Macquarie and New South
Wales (2016-17), Oxford (2010-12), Nijmegen (2009-10), and The Hague Academy of
International Law (Research Session 2010). She read Law in Murcia (LLB/LLM), European
Studies in the College of Europe (MA), and EU Immigration and Asylum Law at the Free
University of Brussels (PG Certicate), before obtaining her Doctorate in Law from the
University of Louvain (PhD). She has published widely in the areas of international and
European refugee and migration law and regularly acts as expert consultant for the EU
institutions and other organisations active in the eld. Her monograph Accessing Asylum
in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law has just been
published by Oxford University Press.
Marion Panizzon: Senior Researcher and Private-Docent at the Institute of Public Law
of the University of Bern where she leads the four-year research project on multi-layered
migration governance and is a member of the Steering Committee of the National Center
of Competence in Research (NCCR) ‘On the Move -- The Migration-Mobility Nexus’. Her
research interests are in trade and migration linkages and governance theories of migra-
tion. She has taught at the Trade Policy Center for Africa (TRAPCA) in Arusha in 2009 and
until 2014 at the World Trade Institute (Bern). She has been elected twice as ocer of the
International Economic Law Interest Group of the European Society of International Law
(ESIL 2010-2015). Dr. Panizzon has been a consultant for the World Bank, the Friedrich-Ebert
Foundation, the Institut du Développement Durable et des Relations Internationales and
most recently, the Swiss Red Cross. She published Good Faith in WTO Jurisprudence
(Hart Publishing, 2006), co-edited Multilayered Migration Governance, Routledge 2011
with Sandra Lavenex and Rahel Kunz and the Palgrave Handbook of International Labor
Migration (with Elisa Fornalé) Palgrave 2015. Her most recent monography Multi-layer
Migration Governance: Mobility in the WTO and Bilateral Labor Migration Agreements is
under contract with Edward Elgar.
Isobel Roele: Dr Isobel Roele joined QMUL in September 2014, having previously held
a lectureship in law at Cardi University and after completing her PhD at the University of
Nottingham. She is the deputy director of QMUL’s Centre for Law and Society in a Global
Context and an elected member of Senate. Dr Roele’s approach to research is informed by
engagements with other disciplines, particularly in the arts and humanities, and by theoreti-
cal work in and about the social sciences. Her most recent publications include ‘Side-lining
Subsidiarity: UN Security Council ‘Legislation’ and its Infra-Law’ 79(2) Law & Contemporary
Problems (2016) 189-214; ‘Reading UN Security Council Resolutions Through Valverde’s
Chronotopes’ 23(3) Feminist Legal Studies (2015) 369-37 and ‘The Vicious Circles of
Habermas’ Cosmopolitanism’ (forthcoming, Law and Critique). Her areas of expertise are:
Collective security and the United Nations; War, international terrorism and the proliferation
of weapons of mass destruction; Global governance and institutions; Public international law.
4
PREFACE
On 19 September 2016, in response to the large movements of refugees and migrants
around the world, the UN General Assembly held its rst ever summit dedicated to this
topic. The outcome was the New York Declaration for Refugees and Migrants, which not
only rearms the importance of existing legal instruments to protect refugees and migrants,
but also foresees two new global Compacts; one on refugees, and one of safe, orderly and
regular migration. Both compacts are scheduled to be adopted by the General Assembly
in the summer of 2018. The United Nations High Commissioner for Refugees (UNHCR)
is responsible for the negotiation of the Compact on Refugees. The Compact for Safe,
Orderly and Regular Migration is primarily in the hands of the UN Special Representative
for International Migration2, assisted by the International Organisation for Migration (IOM),
which became a UN related organisation in July of 2016.3
While both these organisations have expressed much enthusiasm for the prospects of these
new agreements in responding to the current challenges surrounding migration and refugee
protection 4, the nal content and resultant impact of each compact are as of yet uncertain.
More fundamentally, there is little clarity on exactly what kind of international agreement
a compact is, and where it sits in relation to existing instruments of international law and
international relations. The term appears to have arrived fairly recently in international and
regional discussions as an increasingly popular political tool with restricted legal content.
The objective of this working paper is to examine what a compact is, how it relates to other
international instruments, and what, if any, normative implications follow from such an
instrument. The working paper secondly analyses the likely impact of the Compact for Safe,
Orderly and Regular Migration on human rights of migrants by examining the role of re-
lated UN compacts, the negotiation process for the Global Compact on Migration so far, as
well as the political context in relation to other agreements in this area. Our concern is that
inter-state agreements which concern rights of individuals (in this case migrants) must take
forms which complement existing international legal obligations of states. These new forms
of agreement are welcome if their content raises standards of treatment of migrants above
the exiting oor of rights contained in international conventions. They are a threat, however,
to the UN human rights conventions if they, either intentionally or unintentionally, appear to
lower existing standards of human rights.
––––––––––––––
2 Currently Louise Arbour https://www.un.org/press/en/2017/sga1712.doc.htm
3 Elspeth Guild, Stefanie Grant and Kees Groenendijk, ‘IOM and the UN: Unfinished Business’, Queen Mary School of Law Legal
Studies Research Paper No. 255/2017, 6 March 2017.
4 See for instance, Volker Türk, ’A Minor Miracle: A New Global Compact on Refugees’, Address to the Kaldor Centre for International
Refugee Law, University of New South Wales, Sydney, 18 November 2016, http://www.unhcr.org/admin/dipstatements/583404887/
minor-miracle-new-global-compact-refugees.html
5
The UN’s Global Compact for Safe, Orderly and Regular Migration5 is not the rst foray of
the UN into international law and policy making on migration. In 1990 the UN opened
for ratication the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families6 which currently has 51 parties and 15 signatories,
though a number of powerful states which consider themselves destination countries for
migrants have shunned the convention7. In 2000, two migration related protocols8 were
attached to the UN Convention against Transnational Organised Crime, one regarding the
suppression of migrant smuggling, the other tracking in human beings. These two
protocols brought a transnational crime law dimension to migrations.9 While it is sometimes
suggested that since 2000 the international community can only agree on repressive measures
in respect of migration, the successful conclusion of the ILO’s convention concerning de-
cent conditions for domestic workers in 2011 belied this assessment.10 This convention,
while addressing generally the issue of working conditions on domestic workers, includes
provisions directed at the protection of migrants who are also domestic workers,
a group which has been the subject of much international concern.11 The international
community does not necessarily appear to have lost its appetite for binding international
commitments regarding migrants and their rights.
On the policy side, in 2005 the UN published the report of a Global Commission on
International Migration (GCIM).12 The result of a Global Commission on Migration was to
establish a new forum for civil society dialogue, the Global Forum for Migration and
Development (GFMD). The GCIM report also jumpstarted the process of rooting migration
more deeply into the UN by creating the Oce of the Special Representative to the Secretary
General of the UN – currently charged with negotiating the Global Compact for Safe,
Orderly and Regular Migration. On an ad-hoc basis at rst, the UN High Level Dialogue on
Migration and Development (HLD) was rst held in 2006 resulting in a report as well.13
––––––––––––––
5 Elspeth Guild and Stephanie Grant, ’Migration Governance in the UN: What is the Global Compact and What does it mean?’, Legal
Studies Research Paper No. 252/2017, Queen Mary University of London.
6 UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,
18 December 1990, A/RES/45/158, available at: http://www.refworld.org/docid/3ae6b3980.html [accessed 7 August 2017]
7Ryszard Cholewinski, Paul FA Guchteneire and Antoine Pécoud, eds. Migration and human rights: the United Nations convention on
migrant workers’ rights, Cambridge University Press, 2009.
8 UN General Assembly, Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations
Convention against Transnational Organized Crime, 15 November 2000, available at: http://www.refworld.org/docid/479dee062.html
[accessed 7 August 2017] ; UN General Assembly, Protocol to Prevent, Suppress and Punish Tracking in Persons, Especially Women
and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, available at:
http://www.refworld.org/docid/4720706c0.html [accessed 7 August 2017]
9 François Crépeau, ‘The ght against migrant smuggling: Migration containment over refugee protection’(2003).
10 International Labour Organization (ILO), Convention Concerning Decent Work for Domestic Workers, 16 June 2011, PRNo.15A,
available at: http://www.refworld.org/docid/4e0d784e2.html [accessed 7 August 2017]
11 Bridget Anderson, ‘A very private business: exploring the demand for migrant domestic workers’, 14(3) European Journal of Women’s
Studies (2007) 247-264.
12 http://www.un.org/esa/population/meetings/fourthcoord2005/P09_GCIM.pdf accessed 28 February 2017
13 http://www.un.org/esa/population/meetings/HLD2013/documents/Consolidated_Global_%20Report_from_Regional_Consultations.pdf
accessed 28 February 2017.
6
These HLDs are now held on a regular basis, 2008, 2013, 2016 and one is planned for
2018. There are many UN and non UN bodies14 and agencies which engage in migration
related activities which meet regularly under the aegis of the Global Migration Group which
is led by a UN agency on a rotating basis, in 2017 by United Nations University.15 But the
outputs are generally in the form of reports, recommendations or common understandings
below the level of binding norms.
Between the hard law commitments of the conventions and the ‘soft’ instruments of reports
and recommendations falls the form of a compact. In this working paper, we will examine
what the importance of this new form is and why it has become prevalent in this eld.
––––––––––––––
14 See, e.g. The World Bank.
15 http://www.globalmigrationgroup.org/ accessed 28 February 2017.
7
SECTION 1:
The Normative Impact of the Global Compact on Safe,
Orderly and Regular Migration
Thomas Gammeltoft Hansen
Among the two compacts currently being negotiated, the Global Compact on Migration
arguably holds both the largest potential and is likely to face the biggest challenges. Global
governance in regard to migration is notoriously fragmented and incoherent.16 This applies
to international law as well. There is no instrument similar to the 1951 Convention Relating
to Refugees guiding the broader eld of migration.17 As a result, international migration law
relies, on the one hand, on international labour law and general human rights law and, on
the other hand, the growing network of bilateral and regional agreement in regard to
dierent aspects of migration management, governing in particular readmission, border
control and labour migration quotas. A new UN agreement on migration, with the support of
origin, transit and receiving countries alike, thus has the potential to ll an important normative
vacuum.
The question, however, remains to what extent the envisioned Global Compact on
Migration will establish such a normative framework. At face value, the answer seems to be
no. The September 2016 New York Declaration commits states only to adopting non-bin-
ding principles on the treatment of migrants in vulnerable situations.18 The ‘compact’ as a
choice of instrument further seems to place emphasis on political and practical cooperation
as opposed to legal commitments.19 Indeed, the term ‘compact’ occupies a peculiar space in
international relations, somewhere in between politics and law. While compacts may con-
tain detailed guidelines and standards, they are rarely presented as binding instruments
in themselves and tend to place emphasis on more technical and procedural aspects of
‘good governance’. Indeed, the non-binding character of the compact seems to have been
a precondition for broader state support.20
Upon closer inspection, however, the Global Compact for Migration may well come to
have a considerable normative impact on the eld of international migration law, despite
its non-binding status. The central argument forwarded in the present working paper is
that given its broad scope and fragmented state of international migration law, the Global
Compact for Migration is bound to become an important soft law instrument, whether the
––––––––––––––
16 Alexander Betts (ed.), Global Migration Governance (Oxford: Oxford University Press, 2011).
17 The possible exception being in the eld of labour migration. In 1990 the UN signed the Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families, which entered into force in 2003. So far, however, this instrument has only been
ratied by 49 states. These primarily count countries of origin, with some notable exceptions, e.g. Turkey and Mexico, who are both
major destination states. Several ILO conventions focus on protecting specic aspects of labour migration, including Number 97 (1949)
and 143 (1975).
18 UN Doc. A/RES/71/1, para 52.
19 See further section 2.
20 See further Section 2.
21 A soft law instrument is here understood as referring to any instrument with normative content that by its form and provenance provi-
des support sucient to establish the minimum threshold of traction for at least some of the norms contained therein to be regarded as
soft law. The emphasis is thus on the substantive norms as opposed to the formal status of the instrument itself. See John Cerone, ‘A
Taxonomy of Soft Law’ in: Stephanie Lagoutte, Thomas Gammeltoft-Hansen and John Cerone (eds.), The Roles of Soft Law in Human
Rights (Oxford: Oxford University Press, 2016).
8
drafting states intend it to or not.21 The compact may play this role in several ways. First,
even within a more governance-oriented framework, the Global Compact for Migration is
likely to include a number of more technical and standard-setting norms in relation to both
overall cooperation and the implementation framework. While formally not considered
binding, other areas of international law highlight that such norms may nonetheless be
hugely important in governing state behaviour.
22
Second, the compact may come to have a norm-lling role
23 by setting out common ‘prin-
ciples, commitments and understandings’24 in regard to existing rules and their interpretation in
established areas of international law. Annex II of the New York Declaration notes:
We will cooperate internationally to ensure safe, orderly and regular migration
involving full respect for human rights and the humane treatment of migrants,
regardless of migration status. We underline the need to ensure respect for the
dignity of migrants and the protection of their rights under applicable international
law, including the principle of non-discrimination under international law.25
Given the continued gaps and interpretative uncertainties in this area, how and to what
extent the nal compact references existing international human rights law (as well as other
areas of international law such as the law of the sea and international labour law) are thus
important. The Global Compact for Migration represents a major opportunity to ensure
continued state support for international law, clarify the inter-operation between dierent
regimes and to integrate and build on the large corpus of existing standards and principles
developed over the last decades.26
Third and most tentatively, the Global Compact on Migration may end up setting out sub-
stantively new norms in regard to international migration that may eventually pave the way
for binding international law in the form of either custom or treaty. As the Secretary General’s
Special Representative for International Migration Peter Sutherland notes:
The global compact on migration could bundle agreed norms and principles into
a global framework agreement with both binding and non-binding elements and
identify areas in which States may work together towards the conclusion of new
international norms and treaties.27
––––––––––––––
22 One such example is the standards and recommended practice developed by the ICAO Council annexed to the 1944 Chicago
Convention on International Civil Aviation, governing among other things the responsibilities of airlines in regard to inadmissible
passengers (Annex 9).
23 Thomas Gammeltoft-Hansen, John Cerone and Stephanie Lagoutte, ’Tracing the Roles of Soft Law in Human Rights’, in Stephanie
Lagoutte, Thomas Gammeltoft-Hansen and John Cerone (eds.), The Roles of Soft Law in Human Rights (Oxford: Oxford University
Press, 2016).
24 UN General Assembly, Modalities for the intergovernmental negotiations of the global compact for safe, orderly and regular migration,
UN Doc. A/Res/71/280, 1
25 UN Doc. A/RES/71/1, Annex II, para 5.
26 Elspeth Guild and Stephanie Grant, ’Migration Governance in the UN: What is the Global Compact and What does it mean?’, Legal
Studies Research Paper No. 252/2017, Queen Mary University of London.
27 UN Doc. A/71/28, para 87
9
As mentioned above, the political appetite for developing substantively new norms as part
of the compact process is arguably small. At the same time, however, there is an obvious
need for further norm development in this area.
More generally, the Global Compact on Migration may be argued to play into a wider trend
towards what some have called the ‘softication’ of international governance.28 While inter-
national law and legal agreements arguably still structure much, if not most, international
cooperation, an increasing part of the normative standards the last decades have taken
the form of non-binding agreements and other instruments short of positive international
law. The trend towards increasing use of soft law is particularly pronounced in the area of
human rights. While relatively few human rights treaties have been adopted at the UN level
in the last two decades, the number of declarations, resolutions, conclusions and princip-
les has grown almost exponentially.29 This new realm of soft law can be seen to shape and
impact upon the content of international law in multiple ways: from being a rst step in
a norm-making process, to providing detailed rules and more technical standards required
for the interpretation and the implementation of existing rules of positive law. At the same
time, the increasing use of soft law instruments raises concerns about the overall develop-
ment and coherence of international law and the possible dilution of individual human rights.
This development raises several questions in terms of the possible normative impact of the
Global Compact for Migration. In some areas of human rights law, soft law has come to
ll a void in the absence of treaty law, exerting a signicant degree of normative force
notwithstanding its non-binding character. Should the Compact theoretically succeed in
setting out substantively new norms, this is a possible prospect, given the lack of hard law
instruments in this area.
It should be underscored, however, that in whatever way(s) the Compact for Global
Migration may come to exercise normative inuence, there is no guarantee that it will
necessarily improve the human rights protection of migrants. Within liberal human rights
theory there is often an implicit assumption that soft law plays a progressive role, raising
protection standards, and that soft law will eventually solidify or lead to ‘norm cascade’.30
This builds on the idea that the existence of non-binding 31 norms and the consensus that
emerges as states begin to comply with them appears to stimulate the development
of legally-binding norms. As documented elsewhere, however, these assumptions are far
from always true.32
––––––––––––––
28 See e.g. Karsten Nowroot, ’Aiding and Abetting in Theorising the Increasing Softication of the International Normative Order: A Darker
Legacy of Jessup’s Transnational Law?, Paper presented at the 2016 Signature Conference of the Transnational Law Institute, King’s
College, London, Kuly 2016. See further section 4.
29 Thomas Gammeltoft-Hansen, John Cerone and Stephanie Lagoutte, ’Tracing the Roles of Soft Law in Human Rights’, in Stephanie
Lagoutte, Thomas Gammeltoft-Hansen and John Cerone (eds.), The Roles of Soft Law in Human Rights (Oxford: Oxford University
Press, 2016).
30 M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’, International Organization vol. 52 (1998): 887-917.
31 Dina Shelton, ‘Commentary and Conclusions’ (on human rights and soft-law), in Dina Shelton, ed., Commitment and Compliance.
The Role of Non-Binding Norms in the International Legal System (Oxford: Oxford University Press, 2000), pp. 449-463 at 461.
32 Stephanie Lagoutte, Thomas Gammeltoft-Hansen and John Cerone (eds.), The Roles of Soft Law in Human Rights (Oxford: Oxford
University Press, 2016).
10
First, in some areas today soft law constitutes a primary reference point, and yet there seem
to be no immediate prospects for codication or crystallisation of soft law into hard law. Soft
law may be a preferred means by states in order to respond more quickly, with less paucity
and more exibility. Yet, it can also be used to block or delay the subsequent development
of hard law instruments, and states may prefer the sometimes contradictory language of
soft law instruments in order to retain political manoeuvring room. To the extent that this
remains the case, soft law may equally reduce the legal quality of the protection they other-
wise could aord individuals in international human rights law.
Second, the normative impact of the Compact for Global Migration ultimately depends on
the subsequent acceptance by states of any normative statement therein not simply
reecting existing international law. In other words, the eventual Compact becomes a soft
law instrument only once it acquires a degree of traction. While adoption of the Compact by
the UN General Assembly may be seen as an important step in this regard, the provenance
of a soft law instrument such as the Compact does not in and of itself imbue any norms
contained therein with a particular normative force.33 Conversely, the Compact does not
preclude the later adoption of new norms or treaties on dierent issues, as the Sutherland
report makes clear.
Third, and perhaps most important in the present context, soft law instruments have today
also become the battleground for interpretive struggles. In some cases, state-led soft law
processes are clearly used as a strategy for parties actively seeking to backtrack or hedge
against dynamic developments in the interpretation of international human rights law.34 In
this light, the degree to which the nal text of the compact comes to reect existing
principles and understandings of international law is extremely important, and concerns
have been raised that the latest draft does not suciently reect the substantial develop-
ments in standard setting over the last two decades.35 Vice versa, as a hybrid instrument
focusing more on governance aspects, the compact may potentially come to serve as an
‘umbrella’ for a range of dierent non-binding standards, recommendations, best practices
etc. addressed both to state and non-state actors.
In sum, what the Global Compact on Migration will mean for the future development of
international migration law is still unclear. Even if few expect the nal text to set out new
primary norms of international law, the compact nonetheless has the potential to substan-
tially impact the protection of migrants by pulling together and rearming the disparate
binding legal commitments governing international migration and duly reecting interpretive
developments within e.g. international human rights law, the law on search and rescue and
international labour law. As the subsequent sections highlight, however, this is far from the
only role played by UN and regional compacts. Nor is the political context particularly
conducive to such an undertaking.
––––––––––––––
33 John Cerone, ‘A Taxonomy of Soft Law’ in Stephanie Lagoutte, Thomas Gammeltoft-Hansen and John Cerone (eds.), The Roles of
Soft Law in Human Rights (Oxford: Oxford University Press, 2016).
34 Thomas Gammeltoft-Hansen, John Cerone and Stephanie Lagoutte, ’Tracing the Roles of Soft Law in Human Rights’, in Stephanie
Lagoutte, Thomas Gammeltoft-Hansen and John Cerone (eds.), The Roles of Soft Law in Human Rights (Oxford: Oxford University
Press, 2016).
35 Elspeth Guild and Stephanie Grant, ’Migration Governance in the UN: What is the Global Compact and What does it mean?’, Legal
Studies Research Paper No. 252/2017, Queen Mary University of London, p. 16.
11
SECTION 2:
What are the Forms of UN International
Agreements/Understandings and What is
Their Legal Eect?
Isobel Roele
This section addresses the question ‘What is a compact?’ by comparing the term with other
terms for agreements used by the UN. Its principal conclusion is that the Global Compact
for Safe, Orderly and Regular Migration (Global Compact for Migration ) is a political rather
than a legal instrument, but that its purposes go beyond awareness-raising and virtue-casting
and are likely to have indirect, and possibly deleterious, eects. The compact is intended
to serve as a common framework for the ‘good governance’ of migration that will both
guarantee minimum standards for migrants and facilitate international cooperation on migration
challenges.36 Although unlikely to contain any binding legal obligations, its ‘principles,
commitments and understandings’37 are intended to structure future action on migration
and it is likely to be a major inuence on the interpretation of existing legal instruments and
the creation of new ones. They do this not as legal norms arising from political discourse,
but as technical norms garnered from expert knowledge and institutional experience.
The political aspect of the Global Compact for Migration is less about process than form.
It is intended as a means of signalling global commitment to dealing with migration. Unlike
legal obligations, political commitments are not legally enforceable. Indeed, this seems to
have been a condition of states’ participation in and support of the Global Compact for
Migration. Nevertheless, legal enforcement is not the only route to implementation and the
Global Compact for Migration comes with a host of non-legal implementation mechanisms.
These ‘design elements’38 form an implementation framework39 that use non-binding norms
based on technical and professional know-how to nd the optimal mode of implementation.
This sort of norm can be characterised as a hybrid norm, poised between the legal,
the political and the technical. The engine of implementation, as it were, is not the threat
of coercive enforcement but the diculty of refusing oers of cooperation and assistance
to make good on one’s promise. The UN has used such hybrid instruments with great
frequency since the Millennium, particularly in the eld of economic and social development
and the term ‘compact’ captures precisely this interplay between commitment and technique.
What’s in a Name?
We should be chary of reading too much into the phrase ‘global compact’. In UN nego-
tiations, words are often chosen because of what they do not signify as much as for what
they mean. It may be that states have chosen the term ‘compact’ precisely because it is
little used and, therefore, does not bear the baggage of preconception.
––––––––––––––
36 This is clear from the 2017 report of the UN Special Representative for Migration, Peter Sutherland, UN Doc. A/71/28, para. 41
37 UN General Assembly, Modalities for the intergovernmental negotiations of the global compact for safe, orderly and regular migration,
UN Doc. A/Res/71/280, 1
38 Andrew T. Guzman, ‘The Design of International Agreements’ 16(4) European Journal of International Law (2005) 579–612
39 UN General Assembly, Modalities for the intergovernmental negotiations of the global compact for safe, orderly and regular migration,
UN Doc. A/Res/71/280, para. 2
12
A preliminary point to make, given that the UN has six ocial languages and that many
more are spoken in its 193 member states, is that ‘global compact’ is only the English term.
Among the ocial languages, the French and Spanish renderings of ‘global compact’ are
‘pacte mondiae’ and ‘pacto mundial’, respectively. Although not an ocial language of the
UN, the text was also available in German which has the instrument as ‘globalen Paktes’.
We might ask, then, why the phrase was rendered ‘global compact’ rather than ‘global
pact’. The UN is not a stranger to the word ‘Pact’, which has been used on a number of
occasions – including in the context of transnational organized crime in which the ‘Paris
Pact’ was drafted to combat illicit ows from Afghanistan in May 2003. This ‘pact’ was a
political commitment rather than a set of binding legal obligations.40 Another, better known
‘Paris Pact’ is properly known as the ‘Paris Agreement’ in English and the ‘Accord de Paris’
in French. Much in the news, the reason this climate change instrument is often referred to
as the ‘Paris Pact’ in the media is perhaps only that it alliterates. The International Labour
Organization’s Global Jobs Pact of 2009 is described as a policy document, intended ‘to
provide an internationally agreed basis for policy-making’ on unemployment.41
It is not clear why the English translation is ‘global compact’ rather than ‘global pact’. It may
be that the wording is a deliberate allusion to Ko Annan’s UN Global Compact, launched
in 2005.42 This was an attempt to put networked governance theory into practice, bringing
stakeholders (companies, academics, local networks) together. Its mandate is to “pro-
mote responsible business practices and UN values among the global business community
and the UN System”.43 It is a public-private initiative and multi-stakeholder venture.44 It may
be that using the word ‘compact’ rather than pact signals an intention to bring this sort of
networked governance to bear on migration. Perhaps the French and Spanish translations
(pacte mondial and pacto mundial) signify this intention. Certainly, the envisaged role of
‘stakeholders’ in the compact suggests as much. Indeed, it seems that a non-UN inter-
governmental entity – the Global Forum on Migration and Development – already takes
such an approach.45 Its website boasts policy tools, a ‘platform for partnerships’ and other
‘networking’ devices,46 and primarily involves the sharing of best practices – a technique
shared by the Global Compact for Migration process.47 This approach amounts to a sort of
legerdemain whereby legitimating properties such as inclusiveness and plurality become
conduits for technicality rather than political contestation.
UN General Assembly Instruments
Understanding the status of UNGA resolutions is important in ascertaining the legal eect
of the Global Compact for Migration. The UN General Assembly (UNGA) acts through
––––––––––––––
40 https://www.paris-pact.net/upload/static/paris_statement.pdf
41 http://www.ilo.org/ilc/ILCSessions/98thSession/texts/WCMS_115076/lang--en/index.htm
42 See in general Ernst-Ulrich Petersman, ‘Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of
Worldwide Organizations: Lessons from European Integration’ 13(3) EJIL (2000) 621-650.
43 UN Doc. A/RES/70/224, Towards global partnerships: a principle-based approach to enhanced cooperation between the United
Nations and all relevant partners
44 https://www.unglobalcompact.org/about/governance
45 This organization was the initiative of former UN Special Representative for Migration, Sir Peter Sutherland.
46 https://gfmd.org/pfp
47 The use of this technique is widespread in the UN. See, for instance, the UN Security Council’s Counter-terrorism Committee which
uses best practices to implement resolution 1373 (2001). See generally, Roele, “Disciplinary Power in the UN Counter-Terrorism Com-
mittee” 19(1) Journal of Conict and Security Law (2014) 49-84.
13
resolutions. Unlike those of the Security Council,48 its resolutions are not generally binding
on UN member states, and it has no authority or independent means to coercively enforce
them.49 UN member states are only obliged to ‘accept and carry out the decisions of the
Security Council’ and not the UNGA.50 Having said that, the International Court of Justice
has accepted that an Assembly resolution can have legal eect. For instance, the Court
recognized that Assembly resolutions concerning budgetary matters can have binding
eect because the Charter uses the mandatory phrase ‘expenses of the Organization shall
be borne by the Members as apportioned by the General Assembly’.51 Nevertheless, the
resolutions are generally seen as having only indirect law-making eect in the form of
customary norms, either as evidence of opinio iuris or as constituting relevant state
practice.52 Just because something is agreed by the UNGA in a resolution does not, then,
make it legally binding.
However, not all UNGA resolutions are created equal. Procedural resolutions can be dis-
tinguished from substantive ones, for instance. Then again, resolutions passed without a
vote – by consensus – can be distinguished from ‘important questions’ for which a 2/3
majority is required.53 If resolutions are the maids-of-all-work of the General Assembly, it is
vital to be able to distinguish the most from the least important. This is where the resolution
as a vehicle for adopting or endorsing another instrument comes into its own. One of many
international conventions the Assembly has adopted, the UN Convention on Transnational
Organized Crime (UNTOC) in 2000,54 serves to explain the purpose of adoption. Urging
states to become parties is only one reason the Assembly adopts conventions; another is
that, as is the case with UNTOC, the Convention forms part of the UN architecture – in this
case to be administered by the UN Oce for Drugs and Crime. The Assembly cannot, of
course, bypass the need for states to sign a treaty for it to become binding on them. It can,
however, help to imbricate the treaty into UN eorts.
Another form of instrument the UNGA often incorporates into its resolutions is the
declaration. On the face of it, there is no reason that the substance of the declaration could
not simply be transposed into the text of the resolution. However, it seems that reminding
readers of the circumstances in which a declaration was made – as in the case of the New
York Declaration of September 2016 - can be a potent tool to raise its prole. Another good
example of this is the 2005 World Summit Outcome Document.55 Although many high level
dialogues are had in the UN, it is rare to get heads of state and government together as
occurred in 2005, and adopting the outcome document as a text in its own right seemed
to reect the ‘once-in-a-generation’ feeling of the moment.
––––––––––––––
48 When taken under Chapter VII. See Articles 25 and 48(1) of the UN Charter.
49 S.M. Schwebel, ‘The Eect of Resolutions of the UN General Assembly on Customary International Law’ 73 ASIL Proc. (1973) 301.
50 UN Charter, Article 25.
51 UN Charter, Article 17(2). See generally Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) Advisory
Opinion of 20 July 1962, ICJ Reports 1962, 151.
52 Rosalyn Higgins, ‘The United Nations and Law-Making: The Political Organs’ 64 ASIL Proc (1970) 39.
53 UN Charter, Article 18(2).
54 UN Doc. A/Res/55/25.
55 UN Doc. A/RES/60/1
14
In still other cases, the Assembly incorporates another instrument into its canon with the
purpose of giving plenary endorsement to prolonged, complex process. A good example
of this is the 2030 Agenda for Sustainable Development.56 The process of creating this
document, though it is far more complex and sprawling, is comparable to that of the Global
Compact for Migration. The Agenda is the same sort of ‘bundling’ instrument as the Global
Compact for Migration.57 Its process also involves multiple actors, is a cross-cutting issue,
and is tinged with emergency and urgency and has made an enormous eort to include a
multiplicity of stakeholders.
A Hybrid Instrument
There is a mismatch between the aspirations of the UN Special Representative for Migration
and the stomach for action among UN member states. Although Sutherland hopes that the
Global Compact on Migration may eventually pave the way for ‘new international norms and
treaties’,58 there is a marked absence of legal language in the UNGA documents agreed by
UN member states. Instead, their language is very much – as already suggested – the lang-
uage of policy frameworks and political commitments. It seems likely that a condition for
the acceptability of the Global Compact for Migration project among the UN membership is
that it is not legally binding. The paltry number of signatories to the International Convention
on the Protection of the Rights of All Migrant Workers and Members of their Families, which
was negotiated under the aegis of the UN and adopted by the UNGA in 1990, is a case in
point.59 As Sutherland himself points out, there is entrenched disagreement among the UN
membership about what safe, orderly and regular migration looks like.60
Indeed, although migration has been on the UN radar since the mid-2000s when the
Secretary General of the time, Ko Annan, encouraged the UNGA to hold a High Level
Dialogue on the matter,61 little progress was made between this moment, which established
the agenda item ‘international migration and development’ and September 2016 and the
New York Declaration in the intervening years. It appears to be that the crisis caused by the
Syrian civil war is acting as a catalyst for action.
Had the UNGA intended to create a binding legal framework for future action, they would
have agreed to negotiate a convention on migration or on one of the various aspects of
migration singled out for action. Although migration is presented as a ‘multidimensional’
––––––––––––––
56 UN Doc. A/RES/70/1
57 Section 3.
58 UN Doc. A/71/28, para 87, op cit, Section I.
59 UN Doc A/RES/45/158 (1990). The Convention has just 51 parties, none from the Global North.
60 As UN Special Representative on Migration, Peter Sutherland wrote in his report UN Doc. A/71/28, ‘States tend to have quite die-
rent conceptions of what “well-managed migration” means in practice. Some would like it to mean more migration; others, no migration
at all. Nonetheless, all interpretations must stay true to the spirit of the 2030 Agenda’ (para. 11)
61 This culminated in a resolution on International migration and development, UN Doc. A/Res/61/208
15
and ‘cross-cutting’ issue, there is nothing inherent in this that would prevent a treaty being
concluded. Existing examples include UNTOC and the Refugee Convention of 1951, which
is administered by the UNHCR. Both instruments are framework treaties and have yielded
subsequent protocols which are also legally binding.
Nevertheless, it is possible that the Global Compact for Migration could be a policy
framework which might subsequently accommodate multilateral legal instruments. It is also
possible that the norms in the Global Compact for Migration could be elevated to the status
of positive international law in the form of customary international law. When international
law norms are aspirational rather than positive obligations accompanied by enforcement
measures, they form part of the lex ferenda. These so-called ‘soft law’ norms are thought to
contain what the law ought to be rather than what the law is. They are political commitments
that are often dismissed as ‘zombie policy’. Given that the way norms come into existence
in public international law – through state consent – widespread acceptance of aspirational
norms can be evidence of state practice constitutive of a customary international law.62
The Special Representative intends the Global Compact for Migration to represent ‘soft
law’.63 However, in my opinion it would not do so as lex ferenda but as a form of technical
norm that achieves implementation not through ‘hard’ enforcement mechanisms, but ‘soft’
implementation in the form of development assistance. Although not law in the sense of
positive legal norms enforceable in international courts and tribunals, a Global Compact for
Migration full of technical standards, commitments and principles could lead to domestic
legislation, bilateral treaties, regional agreements and international instruments that contain
binding legal norms. It is also likely that as well as stretching forwards towards future legal
obligations, the Global Compact for Migration will stretch backwards in time to the interpre-
tation of existing legal instruments. The Compact thus acts as a sort of hub for the coordi-
nation and association of myriad activities and initiatives. At its most rudimental, this is what
is suggested by the etymology of ‘compact’; the coming together of pacts.
Expertise and Experience
‘Compact’ also suggests a coming-together of actors. I have already mentioned this as
regards the partnership model of the UN Global Compact. In the case of the Global
Compact for Migration, this coming together is less of an inclusive political idea than a
broad-knowledge-based technical one. Plural participation is valued not because it gives
voice to conicting perspectives, but because it adds detail and depth to a single under-
standing of migration. The UNGA envisages that a raft of non-state actors from specialized
agencies and civil society will play a key role in the Global Compact for Migration process.
These actors are described as ‘relevant stakeholders’ and this description seems to refer
both to the fact that they are invested in the outcome (e.g. diaspora communities and
migrant organizations) and that they have relevant experience and expertise (civil society
organizations, academic institutions). In many cases, stakeholders are both aected and
expert. The modalities resolution particularly emphasizes the importance of expertise and
experience in crafting the document when it refers to the importance of ‘best practices’, as
this suggests that the norms in the Global Compact for Migration will be concrete how-to
––––––––––––––
62 ICJ Statute, art. 38(1)(b)
63 UN Doc. A/71/28, para. 86
16
guidance and not abstract ‘what if’ aspirations. This is further suggested by the ‘technical
and policy expertise’ role of the IOM in servicing the negotiations, and by the use of ‘expert
panels’ in the rst phase of the drafting process. The process only becomes political in the
sense of intergovernmental negotiation in the third phase. Member states will discuss a
draft that has been crafted on the basis of technical ‘inputs’.
There is a case for saying that the importance of stakeholders other than governments in
the process of creating the Global Compact for Migration means that, even though it will
not form part of binding international law, the Global Compact for Migration will nevertheless
be a very potent instrument. If it is outside international law, the policy framework can
contain agreements between non-state actors and technical guidelines developed by and
addressed to those directly involved in migration. It may be, then, that the Compact forms
an umbrella for a plethora of regulations, recommendations, standards and practices, guid eli nes , c ode s
of conduct and accords. These sorts of documents are typically produced by speciali-
zed agencies and contain technical norms. For instance, the International Civil Aviation
Organization’s Standards and Practices, the World Health Organization’s Regulations
and the Financial Action Task Force’s Recommendations. The idea that the UN would pro-
vide a big tent to draw together and, ideally, harmonize disparate eorts in a long-term
and multi-agency eort is entirely commensurate with its post-Millennium policy of building
partnerships to perform its functions, rather than keeping them all in-house. In this, there is
a parallel with – amongst others – the Global Plan of Action to Combat the Tracking
of Persons and the UN Global Counter-Terrorism Strategy. Both of these very dierent
initiatives are designed to consolidate existing eorts within the UN and to build links with
external agencies working towards the same ends. While this helps the UN ‘deliver as one’,
it also waters down specic initiatives because each prong of the common eort must com-
promise in order to work together in harmony.
Conclusion
The inclusive nature of the Global Compact for Migration process is, on the face of it, a
positive move towards inclusion and a plurality of voices. However, there is a tendency that
the eventual document will have a lowest-common-denominator eect on human rights
standards for migrants. For one, the higher the number of points of view to accommodate,
the looser the norms become. For another, the fact that human rights organizations
become one voice among many inevitably has the eect of diluting human rights norms and
marginalizing human rights as a body of law. The worst case scenario is that wishy-washy
human rights standards are included in the Global Compact for Migration as a g-leaf for
states to legitimate their current practices.
––––––––––––––
64 UN General Assembly, Modalities for the intergovernmental negotiations of the global compact for safe, orderly and regular migration,
UN Doc. A/Res/71/280, para. 6.
65 UN General Assembly, Modalities for the intergovernmental negotiations of the global compact for safe, orderly and regular migration,
UN Doc. A/Res/71/280, para. 7.
66 UN General Assembly, Modalities for the intergovernmental negotiations of the global compact for safe, orderly and regular migration,
UN Doc. A/Res/71/280, para. 11.
17
SECTION 3:
The Global Migration Compact and the Limits
of ‘Package Deals’ for Migration Law and Policy
Marion Panizzon
This section infers from several negotiating techniques used towards drafting a Global
Migration Compact with a focus on the issue-linkage, also known as the packaging app-
roach, what the nal outcome might be. Engaging in a comparative assessment with
competing use of “compacts” by international donors and the EU towards Jordan, we ar-
gue that “packaging” is of limited use in a eld framed by individual rights and the universal
claim of protection. Linkages are at similar loss, in this eld, fraught with weak reciprocity
among states. The EU concept of “compacts” seemingly sides with its pre-crisis partnership
logic propagated in policy instruments such as the Global Approach to Migration and Mobility
(GAMM) but at the same time bypasses the participatory rationale of EU neighbourhood
policy action plans and reveals a top-down approach instead. The universality of human
rights protection implies non-negotiable commitments which cannot be watered down by
reciprocal deals. If human rights are taken seriously, the Global Migration Compact
could incentivize separate, but interlinked treaties on specic aspects of migration, including
return and labor market access quotas, standards on readmission procedures according
to the “mini-multilateralism” paradigm, rather than act as a platform to launch a single,
multilateral treaty on migration.
Compacts as Packages? Theorizing ‘Issue-Linkage’ in Migration
Issue-linkage often used identically with the “packaging approach”, is not quite a theory but
rather a “machinery” or a “mechanism” advanced by legal theorists68 and political scientists69
as a vehicle to incentive states to cooperate internationally on foreign policy areas for which
global consensus remains out of reach, often because a reciprocal trade-o is dicult to
reach.70 In the realm of international law, issue-linkage acts as a trust-building treaty-negotiating
technique or a “bargaining tactic” that ensures that agreements are negotiated and parties
remain in the agreements.71
Issue-linkage to other policy categories, or put dierently “embedding” into a related, but
more mature regulatory area, is one recipe to create the bargaining space for gathering
global alliance, before addressing, in a subsequent step, the hot topic.72 In international
––––––––––––––
68 Sabino Cassese, Research Handbook on Global Administrative Law. Edward Elgar Publishing, 2016.
69 Betts, Alexander, Global Migration Governance, ed. Oxford University Press (2011); John Gerard Ruggie, ‘International Regimes,
Transactions, and Change: Embedded Liberalism in the Postwar Economic Order’ 36(2) International Organization (1982) 379-415.
70 Betts 2011.
71 Paul Poast, ‘Issue linkage and international cooperation: An empirical investigation’. 30(3) Conict Management and Peace Science
(2013) 286-303.
72 Around issue-linkage a wide literature exists on how trade agreements have often gone “beyond their traditional subject matter of
liberalizing market access in goods, services or intellectual property rights” (Milewicz et al. 2016:2). Its motives are for powerful partner
to impose conditions and for preventing a race-to-the bottom over the “non-trade issue” (NTI).
73 James, F. Hollield, ‘Migration and the ’New’ International order: the missing regime’, in Bimal Ghosh, ed. Managing Migration, Time
for a New International Regime, Oxford University Press, 2000, 75-109.
18
migration law and policy, issue-linkage is applied to overcome the “missing regime” 73 and
other collective action challenges, including a fragmented74 “piecemeal” law.75 Whereas
issue-linkage is not free of risk, including exacerbating power asymmetries, which leads to
a blurring of rights and policy overlaps which are subsequently dicult to “disentangle”
76,
it can, if eectively tailored and holistically managed – be advanced as one selling point of
the Jordan Compact.77 Issue-linkage has the further advantage of being accessible to most
disciplines – law, political science and economics – so that a packaging solution will even
be more poly-valent.
The downside of linkage is how it creates overly complex governance structures and incoherent
outcomes78 for blurring of rights and asymmetric bilateral deals driven by conditionality
rather than reciprocity.79 Packaging builds trust, creates incentives to compromise, but can
also blur lines, in particular for rights protection. With migrants “encountering” courts as in
Hirsi Jamaa and Others v Italy, no. 27765/09 ECHR 2012 and Khlaia and Others v Italy,
no. 16483/12 ECHR 2017,80 it becomes more dicult for governments to strike deals on
their expense (Turkey-EU statement; Italy-Libya bilateral agreements). Packaging visa to
readmission or linking trade preferences to refugee employment becomes more dicult if
rights are to be protected.81
Linkage in migration was used pre-crisis by countries including Switzerland to propagate
a “whole-of-government” approach towards immigration policy formulation and Swiss
migration partnerships towards third countries. Similarly, EU Mobility Partnerships, the
Common Migration and Mobility Agendas and most recently the EU partnership priorities
and compacts make use of it. Compacts by denition imply linkage or packaging; they
gure as the ultimate form of linkage in international, regional and national migration law
and policy. How have large movements of refugees and migrants provided new impulse
for issue linkage and how linkage evolved, moving away from the migration-development-nexus
of early days?
Unlike trade, investment or health, which are policy categories displaying the kind of ‘global
public goods’, quality that incentivizes international cooperation, for migration, with the
––––––––––––––
74 Vincent Chetail, ‘Sources of International Migration Law’, in Brian Opeskin, Richard Perruchoud, Jillyanne Redpath-Cross, eds.,
International Migration Law, Cambridge University Press, 2012 56-90.
75 Opeskin, Brian, Richard Perruchoud and Jillyanne Redpath-Cross, ‘Conceptualizing International Migration Law’ in Brian Opeskin,
Richard Perruchoud and Jillyanne Redpath-Cross (eds.), Foundations of International Migration Law, Cambridge University Press 2012,
1-16.
76 Alexander Betts and Paul Collier, ‘Jordan’s refugee experiment: a new model for helping the displaced in Jordan’, Foreign Aairs
(2016).
77 Boswell, forthcoming.
78 Betts 2011.
79 Andrew Geddes 2009. ‘Migration as Foreign Policy? The External Dimension of EU Action on Migration and Asylum’, SIEPS.
80 Itamar Mann, Humanity at Sea: Maritime Migration and the Foundations of International Law, Cambridge University Press 2016.
81 François Crépeau, ‘Thematic report on bilateral and multilateral trade agreements and their impact on the human rights of migrants’,
UN Doc. A/HRC/32/40) 4 May 2016.
82 Rahel Kunz, Sandra Lavenex and Marion Panizzon, ‘Multilayered Governance: The Promise of Partnership‘, Routledge 2011.
83 Joel Trachtman, The International Law of Economic Migration: Toward the Fourth Freedom, Kalamazoo W.E. Upjohn Institute for
Employment Research, 2009.
19
exception of few areas with free rider problems, including asylum and refugee protection,
the same is not true.83 Packaging to non-migration policy categories, which is what
“compacts” imply, is thus chosen to construct reciprocity in an area where there is often
none.84 The EU-Jordan compact, to that eect, links goods trade to refugee employment
as a solution for compensating Jordan’s crisis-ridden economy from some of the costs of
the Syrian refugee intake. Behind the scenes, the “trade-refugee-deal” of the compact,
however, also gures as a way to keep these refugees from reaching their country of
choice – Europe. In this sense, issue-linkage in refugee policy comes at the cost of the
human right to leave. Conversely, the trade-refugee labour linkage of the Jordan Compact
creates livelihoods. It seems that proling linkages – at least for refugee and migrants – is a
highly controversial policy choice.85
‘One-Size-Fits-All’ Versus ‘Mini-Multilateralism’: Why (Un)Pack a Compact?
The Global Compacts are an intermediate step in a negotiating process which could lead
to the adoption of multilateral treaties. From negotiating techniques we can infer the nal
outcome and its meaning for migrant rights, multi-stakeholder participation, and other good
governance questions. Issue-linkage and packaging solutions are negotiating techniques
which ultimately aim at a multilateral solution, a one-size-ts-all approach or package deal
mirroring a reciprocal give and take. Within the process of negotiating the Global Compact
for Migration, a central question is how much policy space there should be for customizing
policy solutions towards safe, regular and orderly migration and thus to “unpack”.86 This
dichotomy between a one-size for all and tailor-made solutions, the later which enable
pick-and-chose, opt-outs and opt-ins, is well-known from EU external dimensions of
migration law. The Sutherland Report endorses “mini-multilateralism”, defined as
collecting best practices around a specic issue area, which are in a second step, tested
as pilots among a group of like-minded states, before multilateral support and, ideally,
consensus is sought.
The coming into being of the UN Global Compacts follows a top-down process, initiated by
two country co-facilitators, in this case, Mexico (Ambassador José Juan Gomez Camacho)
and Switzerland (Ambassador Jürg Lauber). This choice pre-determines an outcome whic
h is driven by state preferences, sectoral and actor-specic interests. Although the drafters
of the pre-negotiations reports, the co-facilitators and the UN administrative support team,
claim this is a state-led, UN-assisted discourse which will require a General Assembly vote
of approval, the fact that initiation and guidance is provided by the co-facilitators, that key
strategic documents, such as the Sutherland Report or the Modalities document 87 and
certain thematic meeting reports, are prepared by a group of individuals around the
Special Representative of the Secretary General, point more towards a “global” governance
––––––––––––––
84 Section 1.
85 Pro-linkage: http://www.atlanticcouncil.org/blogs/syriasource/challenges-and-successes-of-jordan-s-work-permit-program-for-
syrian-refugees-after-one-year; contra https://www.hrw.org/news/2016/11/30/submission-lebanon-eu-partnership-priorities-and-eu-leba-
non-compact.
86 GMG Input to the Secretary General’s Issue Brief, Theme No. 3 International cooperation an governance of migration in all its dimen-
sions including at borders, on transit, entry, return, readmission, integration and reintegration, May 2017.
87 A Modalities document was circulated on 22 December 2016: http://www.un.org/pga/71/wp-content/uploads/sites/40/2015/08/moda-
lities-for-global-migration.pdf.
20
process taking place outside the precepts of formal inter-governmentalism. The UN Global
Compact for Migration process shares as discussed, some similarities with the multiple
rounds of negotiations, which eventually transformed the GATT 1947 into the WTO, but it
does not directly compare to these.88 On the other hand, the UN Global Compact for Migration
opens to non-state participation, since during the 12 thematic meetings held in 2017, as
well as the stakeholder meetings held during the pre-drafting stage, non-state organizations,
including academia, may have a voice by accrediting with the UN. Nonetheless, a
multi-stakeholder participation is kept formally out of the negotiation process, ensuring that
the inclusion of migrants’ voices are a myth rather than a reality.89
To what extent does the UN Global Compact prole a packaging approach and where
are the limits? Firstly, it is clear that issue-linkage as a exibility strategy encourages cross
thematic fertilization among migration (and refugee) policy. This is important for a eld like
migration, where compromise is dicult to achieve as divides between perceived sending,
host and transit communities run deep and “unwanted” migration becomes a highly politi-
cized category. The NY Declaration itself links short-term humanitarian relief and emergency
interventions with medium-term protection needs and long-term livelihood strategies.
The Sutherland Report, however, notes that compacts ought to lead to “the conclusion of
new, issue-specic treaties”,90 which means even more fragmentation and less coherence,
unless an umbrella treaty would provide a framework. The Sutherland Report’s emphasis
on “issue-specic” means that the Special Representative of the Secretary General and
the General Migration Group are opposed to “packaging solutions” and “cross-sectoral
bargaining”, as was undertaken by developing with industrialized countries during the
Uruguay Round of multilateral trade negotiations, to build up the necessary reciprocity for
negotiating the so-called “single undertaking” of the WTO Marrakech agreement. In that
case, packaging solutions acted as an umbrella to the grand bargain between intellectual
property, trade in services and goods, including with the Global South. Instead, the negoti-
ating technique chosen for the Global Migration Compact is “mini-multilateralism”, dened
as seeking a common denominator around a single issue, such as “vulnerable situations;
abusive recruitment processes; or international transfers of funds and benets”.91 These
single issues are then discussed among interested States before multilateralizing towards
all UN Member States in the form of a self-contained treaty or agreement on each specic
––––––––––––––
88 Andrew Moravcsik, ‘Taking Preferences Seriously: A Liberal Theory of International Politics’, 51(4) International Organization 1997
513–53.
89 François Crépeau, Bern Talk, 23 June 2017, http://www.unibe.ch/aktuell/uniaktuell/das_online_magazin_der_universitaet_ber n/uniaktuell_
ab_2015/rubriken/universitaet/un_sonderberichterstatter_fordert_eine_stimme_fuer_migrantinnen_und_migranten/index_ger.html
90 Report of the Special Representative of the Secretary-General on Migration, (Sutherland Report) Sutherland Report, UN Doc.
A/71/728 of 28 December 2016.
91 Report of the Special Representative of the Secretary-General on Migration, (Sutherland Report) Sutherland Report, UN Doc.
A/71/728 of 28 December 2016.
21
issue. In what in essence amounts to a three-step process, as the Sutherland Report
indicates, the function of a compact is one of a stepping stone: “The global compact could
bundle agreed norms and principles into a global framework agreement with both binding
and non-binding elements and identify areas in which States seek to work towards the
conclusion of new international norms and treaties.”
92 Its work is clearly to not go beyond
co-facilitating a state-led process of identication of issue areas suitable for multilateralism,
as was repeatedly stated in the “procedural note for the third informal thematic session”
on international cooperation and governance of migration in all its dimensions including at
borders, on transit, entry, return, readmission, integration and reintegration.93
Similarly, the EU Partnership Framework proposes “coherent and tailored” partnerships or
“country packages” to resolve the delivery gap haunting EU readmission agreements. The
EU Common Agendas for Migration and Mobility,94 Compacts and Partnerships, are all tools
to “informalize” and thus lessen the legal density pressuring sending countries into disliked
and eventually unenforced readmission agreements. The EU approach, which Switzerland
for example has been replicating with its “Migration partnerships”, is a sequential one,
providing for the conclusion of non-binding frameworks or sub-ministerial inter-agency
technical cooperation rst, before negotiating a fully-edged EU readmission agreement.95
The sequencing strategy inherent in EU migration policy and issue-specic customization
inherent in it, are key exibility tools which can advance prospects of enforcement and
increase the likelihood of voluntary returns. On the downside, informalization risks watering
down non-refoulement guarantees and other rights. The Global Compacts seem to
pursue a similar strategy of sequencing the process, with a rst informal phase of thematic
meetings and multi-stakeholder meetings each summarized by “notes” from the oce of
the Special Representative of the Secretary General Louise Arbour, complemented by a
Zero-Draft drafted by the co-facilitators, upon which states engage in a second phase of
negotiations.
The Global Compact for Migration posits the following advantages in “exibility”:
– Acknowledgement that not all of migration policy features “hard” law
agreements and treaties;
– Allowing competing “ethos” (voluntarism, humanitarianism and managerialism) to
be co-joined and lessen pressure on states to multilateralize;
– Bottom-up approaches like regional consultative processes co-exist alongside
co-facilitated process of the Global Compact for Migration;
– Migration ows are usually “mixed” and this diversity needs to play out in
policy solutions;
– Validation of the local and subnational layers of migration law-making;
– Acknowledgement that categorization into host, home, transit countries may run
counter to fair-distribution of benets regarding migration;
––––––––––––––
92 Report of the Special Representative of the Secretary-General on Migration (Sutherland Report) UN Doc. A/71/728 of 28 December
2016.
93 http://www.un.org/pga/71/wp-content/uploads/sites/40/2015/08/Global-Compact-6-June-2017.pdf.
94See https://ec.europa.eu/home-aairs/what-we-do/policies/international-aairs/global-approach-to-migration_en.
95 EU Partnership Framework, 7 June 2016, COM (2016) 385 nal, pp. 6-7.
22
Legal Density of Compacts– ‘Between a Rock and a Hard Place’ 96
A distinctive trait of Compacts is their “hybridity” in terms of legal density, as discussed by
Isobel Roele in the section above. Compacts strike a middle ground between the hard law
of a multilateral treaty or bilateral agreement and the soft law of declarations, recommendations,
best practices, and understandings.97 The hybridity of compacts extends beyond their legal
density or choice of negotiating technique. Ambivalence also concerns the governance
modality of Compacts: less constraining than an agreement, but a step beyond the sof-
ter understandings, recommendations, guidelines or other labels for best practices, which
characterize pre-New York millennial migration outputs at the global level, including the
GCIM Commission’s common understandings (2015), the outputs of the UN HLDs on
migration and development since 2009, the Berne Initiative’s International Agenda on Migration
Management (IAMM), but also point 10.7 of the Sustainable Development Agenda 2030.
Indeed, the pre-negotiation process of the Global Compact for Migration so far, seems to
combine multi-stakeholder with thematic informal meetings, held at alternating UN head-
quarters, from Geneva or New York to Vienna. Both the multi-stakeholder and thematic
meetings aim to collect best practices on various issue areas of migration to feed into
a Zero Draft, with the goal to multi-lateralize those issues over which consensus can be
achieved by concluding issue-specic treaties. However, the process is open-ended in
terms of the conclusion of the global framework agreement to serve as an umbrella or to
what extent certain areas will remain soft law.98
Compacts contain a further “hybrid” moment, in the sense of an “intertemporal” component.
The series of “informal multi-stakeholder and thematic meetings” leading to the Compact
is only the intermediate goal. The more ultimate one is to obtain a cluster of issue-specic
multilateral treaties, and, in an even longer-term horizon, a “global framework agreement”
to hold these thematic treaties together.99 It is no coincidence that the Sutherland Report’s
key architect, Sir Peter Sutherland, had something similar in mind to the WTO Marrakech
agreement he helped to conceive back in 1994, as the last Secretary General of General
Agreement on Trade and Taris (GATT) and rst Director General of what became the World
Trade Organisation agreement (WTO), the so-called WTO constitution, spanning over the
GATT 1947, the GATS100 and the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) agreement and giving birth to the WTO as an international organi-
zation. Yet, at this stage it remains unclear to what extent such a “global migration framework
agreement” would be monitoring authority and holding powers of judicial review.
––––––––––––––
96 An idiom used to describe the challenge of a dilemma: two solutions are in sight, but neither is desirable or feasible; it inspired the
Rolling Stones to a song, and Petros Mavroidis to an article on the role of remedies in the WTO Remedies in the WTO legal system:
between a rock and a hard place; (11(4) EJIL (2000) 763-813), which is highly contested, since they are neither foreseen by the WTO
treaties nor prospectively useful as a trade sanction. In the end, eectiveness, as the way out of dilemma, including of “package deals”
is about power of persuasion.
97 See Section 1.
98 Guild and Grant 2017 12-15.
99 Report of the Special Representative of the Secretary-General on Migration (Sutherland Report), UN Doc. A/71/728 of 28 December
2016 ; para. 87.
100 General Agreement on Trade in Services (GATS).
23
As a governance tool, the Global Compact for Migration aspires clearly to fullling “good” go-
vernance rationales, including accountability, participation of civil society organisations, migrants
and non-governmental organisations, and rights-based policies, alongside multi-layered
gover nance aspirations, including to increase the intersectionality among socio-spatial layers to
improve, by implementing subsidiarity, the eciency, burden-sharing and solidarity among govern-
mental actors at global, regional and local levels.101 Governance thus aims to increase
the coherence among actors,102 but also the coordination among themes and thus aspires
to similar package deals, as the EU Partnership Framework propagates between irregular
and regular migration through a mix of “positive and negative” incentives.103 Unlike “partnership
approaches”, the UN Global Migration Compact strives for an even more comprehensive
bundling, proling for the rst time in this explicit and unambiguous manner, human rights,
vulnerability protection.
Out of an attempt to “manage” the refugee “crisis”, several regional and international
compacts have emerged.104 Among these, the EU-Jordan Compact of 2016 features a high
diversity of linkages, spanning from refugee employment for visa facilitation, labour, trade,
development and even investment. The EU commitments, however, were preceded by an
international donor conference. The following section dissects how “linkage” has worked in
these compacts and to what migration and refugee was linked to and at whose expense.
The International Compact for Jordan: A Multi-stakeholder Package
At the Syrian donor conference in London in 2016, key EU Member States aected by the
large ows of refugees and migrants – Germany, Norway and the UK, together with Kuwait
and Qatar – and non-state actors, including the EU, the World Bank and other multilateral
donors, came up with international “commitments” for a “compact” with Jordan. The
Conference held a second round of pledging on 5 April 2017 in Brussels.105 It was at this
conference that the concept, which had been developed by two academics, Alex Betts and
Paul Collyer, was applied in practice.106 The Compact “compensates” two frontline transit
countries, Jordan and Lebanon, for keeping Syrian refugees in the region, which is per-
ceived as the more humane and at the same time less resource-intensive solution. The
international compact is an unprecedented “package deal” – actor-wise and in terms of
the policy mix involved.107 For the rst time, refugees living in formal camps are to be given
employment, at the expense of exercising their right to leave any country (Art. 13(2) Universal
Declaration of Human Rights) and to freely move to their country of asylum of their choice.
In return, host communities in Lebanon and Jordan are compensated for the cost of
hosting foreign populations – albeit the 9 billion euros raised at the London event are
limited to Syrian refugees – in their volatile and fragile economies. Behind the compact was
––––––––––––––
101 Global Migration Group (GMG) Input to the Secretary-General’s Issue Brief Theme #3: International cooperation and governance of
migration in all its dimensions including at borders, on transit, entry, return, readmission, integration and reintegration, May 2017.
102 Dened as including state and civil society but not migrants themselves.
103 Céline Bauloz, ‘The EU Migration Partnership Framework: an External Solution to the Crisis?’, 31 January 2017, EU Immigration and
Asylum Law Blog.
104 Etienne Piguet, ‘The “Migration Crisis” in Europe: An Interpretation, NCCR on the Move’, Blogpost 22 June 2017, http://blog.
nccr-onthemove.ch/the-migration-crisis-in-europe-an-interpretation/?lang=de.
105 The 4 February 2016 London donor conference is ocially called “Supporting Syria and the Region” http://data.consilium.europa.eu/
doc/document/ST-12384-2016-ADD-1/en/pdf s.12
106 Paul Collier and Alex Betts, ‘Why Denying Refugees the Right to Work is a Catastrophic Error, 22 March 2017, https://www.theguardi-
an.com/world/2017/mar/22/why-denying-refugees-the-right-to-work-is-a-catastrophic-error.
24
the idea that stepping up Middle Eastern countries’ export potential by relaxing their rules of
origin with a view to boost exports of goods manufactured there with at least 25% refugee
labour into the EU could be lined up with the EU interests in enforcing the externalization of
EU borders. This is the objective of the EU regarding Jordan and Lebanon. Implementation
would occur via secondary measures adopted by the EU-Association Councils.
The Compacts in EU External Migration Policy: Rivalry with Partnerships?
In EU policy, Jean-Claude Trichet, former EU Central Bank president, had coined the term
“compact” for the rst time, as another label for the Treaty on Stability, Coordination and
Governance in the Economic and Monetary Union of 2 March 2012; also referred to as
TSCG or Fiscal Stability Treaty. Under that “compact”, signatory EU Member States were
urged to balance their national budgets with the convergence criteria, i.e. be in line with or
feature a surplus according to an EU denition.108 The EU Migration Compacts are a very
similar tool, also responding to crisis but falling short of culminating in a durable, long-term,
legally binding solution. Instead, the Jordan Compact oers time-limited trade preferences
and access to scal aid until 2018; the one with Lebanon until 2020.
In 2015, the Valletta Summit and the ensuing EU Agenda 2015 and 2017 Framework
Partnership endorsed a “multi-policy” dimension. The EU Compacts, ocially labelled the
Partnership Priorities to which a Compact is annexed to, pursue this policy.109 The Part-
nership Framework on migration with third countries under the European Agenda on
Migration perceive compacts as a follow-up to the Common Agendas on Migration and Mo-
bility (CAMM) according to which the EU can sign compacts with third countries, which can
also be precursors to more fully-edged and legally binding readmission agreements later.110
EU Compacts build on pre-existing EU-Association agreements, but fall short of modifying
them, since modication would involve the EU Parliament and take too much time. Com-
pacts are conceived as “crisis” intervention mechanisms to compensate host communities
for a large and sudden intake of refugees. They have notably relieved the economies of Jordan
and Lebanon of some of the costs of hosting Syrian refugees by granting more favourable
export opportunities for merchandize produced by 25% refugee labour, but have left out
Iraqi and Palestinian or refugees from the Horn of Africa from the deal.111 The compact modi-
es Jordan’s eligibility status under its EU Association Agreement from the General System
of Preferences Plus (GSP+) to an “Everything-but-Arms” status according to WTO rules.
However, the EU-Association Council refrained from modifying the text of the Association
Agreement because the compact is considered a time-limited deal only.112 The EU Compact
––––––––––––––
107 Katharina Lenner, ‘The politics of pledging: reections on the London donors conference for Syria’, Migration Policy Center Policy
Brief 2016/3, Florence : European University Institute.
108 The Czech Republic, Croatia, the UK opted out; Romania, Bulgaria and Denmark opted in.
109 Communication from the Commission to the European Parliament, The European Council, The Council and the European Investment
Bank Partnership Framework with third countries under the European Agenda on Migration, 7 June 2016, COM(2016) 385 nal.
110 EU Commission, Annex to the Joint Proposal for a Council Decision on the Union Position within the Association Council set up by
the EU-Mediterranean Association Agreement establishing an association between the EU, its Member States and Jordan with regard
to the EU-Jordan Partnership Priorities and Annexed Compact of 20 September 2016, http://data.consilium.europa.eu/doc/document/
ST-12384-2016-ADD-1/en/pdf
111 Marion Panizzon, ‘Trade and Migration Linkage Re-invented: The EU-Jordan Compact and Refugee Employment’, in Sergio Carrera,
Elspeth Guild and Marco Stefan, The EU External Dimension of Migration Policy, TRANSMIC and CEPS (forthcoming).
25
for Jordan mirrors the international compact for Jordan agreed to at the London donor
conference. Rather than “subcontracting” to international organizations (including IOM
and UNHCR),113 the EU is inversely aligning its policy priorities in Jordan, in particular to the
international commitments agreed upon in London, in a process of “inverse diusion”. As the
EU Commission notes, Compacts are “uid processes” from which a “formal” international
agreement can “ow”.114 In the case of Jordan such a nalization is yet to be seen. Similarly,
the Sutherland Report notes that the Global Migration Compact is a precursor to “new, iss-
ue-specic” treaties” and that the process “can help support States to move from informal
processes to the conclusion of formal treaties”. Partnerships (Swiss, French, EU) in return,
are yearly reviewed by a committee, which can add or remove elements to the deal (e.g.
anti-tracking programs, labour market access quotas, professions where economic needs
tests are eliminated or relaxed) but without the expectation that someday there will be a
spill-over into an agreement or treaty. As important discursive elements of an intensifying
North-South dialogue among host-sending communities, EU partnerships are platforms to
follow-up on ENP action plans.115 Conversely, the EU Association Council for Jordan announ-
ced that the EU-Jordan Compact and the EU Partnership Priorities to which they are annexed
to replace ENP action plans. Whereas the EU Mobility-partnerships emerge bottom-up among
host country, interested EU member states and the EU Commission,116 the Compacts seem
to overturn, the participatory legitimacy of the EU Mobility partnerships, by excluding the
EU Commission or the EU Parliament as parties to the compacts, and expressly
bypassing the logic of related EU migration instruments, including the ENP Action Plans,
which they “replace”.
––––––––––––––
112 Annex to a Joint Proposal for a Council Decision on the Union Position within the Association Council set up by the Euro-Mediterra-
nean Agreement of 20 September 2016: http://data.consilium.europa.eu/doc/document/ST-12384-2016-ADD-1/en/pdf
113 Sandra Lavenex ‘Multilevelling EU external governance: the role of international organizations in the diusion of EU migration policies’
42(4) Journal of Ethnic and Migration Studies 554-570.
114 Factsheet on Partnership Framework on Migration, available at: https://eeas.europa.eu/sites/eeas/les/factsheet_ec_format_migra-
tion_partnership_framework_update_2.pdf
115 EU Commission, Annex to a Joint Proposal for a Council Decision on the EU Partnership Priorities for Jordan, JOIN 2016 41 nal, 19
September 2016 http://eur-lex.europa.eu/resource.html?uri=cellar:a9fac374-7e47-11e6-b076-01aa75ed71a1.0001.02/DOC_2&format=P-
D F.
116 Natasja Reslow, ‘Deciding on EU External Migration Policy, The Member States and the Mobility Partnerships’, 34(3) Journal of
European Integration (2015) 223-239; Sergio Carrera et al., ‘External migration policies, A preliminary mapping of the instruments, the
actors and their priorities’, Brussels, 2016.
26
Conclusion
Not all denitions of compacts mean the same thing. Nor are all type of “compacts”
– global, regional or international – meant to be “package deals”, negotiated to obtain a
“one-size-ts-all” common denominator among host, sending and transit countries. Text
analysis combined with semi-structured expert interviews of the UN informal thematic
meetings reveal that what is labelled a “compact” in UN discourse diers widely from what
the EU considers to be a “compact”. Yet, there is multi-levelling between the EU Jordan
Compact and the commitments by the international community at the “Protecting Syria and
the Region” Paris (2016) and Brussels (2017) conferences for Jordan. All “compacts” seem
rooted in “ad hocism” to resolve the “migration crisis”. Whereas the Global Compact for
Migration is a by-product of UN facilitated, state-led process, the international Jordan com-
pact is the product of multi-stakeholder participation, while the EU Jordan compact builds
on a rich history of pre-existing EU association agreements, European Neighbourhood
Policy Action Plans, and Mobility partnerships which it sidesteps or modies.
Secondly, the UN Global Compact process is opposed to packaging solutions and clearly refra-
ins from straightjacketing states into one-size-ts-all solution. If at all, the UN Compacts seem
more likely to stand as an intermediate step within a negotiating process labelled “mini-mul-
tilateralism”, which eventually leads like-minded states to adopt a series of area-specic
treaties. Eventually, the UN Global Compact could lead to a “global framework agreement”
monitoring with both binding and non-binding the various issue-specific treaties.
Regardless of dierences in negotiating techniques, EU and Global compacts propose
“in-between” solutions – modifying ex post action plans, dialogues, agreements, facilitating
an ex ante binding agreement, and providing an intermediate legal solution.
In conclusion, the packaging approach might have worked to enhance the mutual sup-
portiveness of trade in goods and services with investment, intellectual property rights and
environmental protection. Yet, as a “tit-for-tat” paradigm, linkage ultimately fails where indi-
vidual rights protection is at stake, as in migration or where reciprocity is weak, as between
migrant sending, receiving states.
27
SECTION 4:
The Migration Partnership Framework and the
EU-Turkey Deal: Lessons for the Global Compact on
Migration Process? *
Violeta Moreno-Lax
The EU has been experimenting in recent years with ‘softied’, inter-governmental
non-treaty formulas in its relations with the wider world in several domains, particularly
with regards to migration and border management, which have had the eect (in practice)
of divesting migrants of key fundamental rights, despite their positivisation in legally-biding
instruments (including, not least, the European Convention on Human Rights). The Migration
Partnership Framework (MPF), put forward by the European Commission in June 2016,117
and the so-called EU-Turkey ‘deal’, concluded in March 2016,118 are cases in point. They
provide illuminating examples of what such processes may lead to – not only for pre-existing
inter-state commitments, but most importantly also in terms of the related erosion of
migrants’ legal protections they have entailed. The turns and bumps encountered on the
road oer valuable lessons to be learnt, indicating the way (and paths to be avoided) in the
negotiations shaping the future content of the Global Compact for Migration at the UN level
The MPF as New EU External Relations Template
As already noted in the preceding sections, the MPF has been wholeheartedly embraced
by the European Council as the new template for EU external relations.119 The document
comes to de facto replace and modernise earlier strategies guiding interaction with third
countries, including the Global Approach to Migration and Mobility (GAMM).120 But, in com-
parison, the MPF exchanges the more participatory, bottom-up approach governing EU
Mobility Partnerships121 with a top-down, classic conditionality-prone drive that also excludes
EU democratic oversight.122
The proclaimed objectives of the MPF are similar to those pursued by the past GAMM
framework. At face value, they both concentrate on strengthening links with non-EU part-
ners to better manage (or contain unwanted) migration. Short-term actions are presumably
targeted at saving lives and rescuing migrants at sea and in the desert; at dismantling
––––––––––––––
* This section is partly based on V. Moreno-Lax and M. Giuré, ‘The Raise of Consensual Containment: From ‘Contactless Control’
to ‘Contactless Responsibility’ for Forced Migration Flows’, S. Juss (ed.), Research Handbook on International Refugee Law (Edward
Elgar, forthcoming). An advance copy is available at: <http://ssrn.com/abstract=3009331>.
117 Establishing a new Partnership Framework with third countries under the European Agenda on Migration, COM(2016) 385 nal, 7
June 2016.
118 EU-Turkey Statement, 18 Mar. 2017, available at: <http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-sta-
tement/>.
119 European Council Conclusions, 28 June 2016, at: <http://www.consilium.europa.eu/press-releases-pdf/2016/6/47244643506_en.pdf>.
120 The Global Approach to Migration and Mobility, COM(2011) 743 nal, 18 Nov. 2011.
121 Natasja Reslow, ‘Deciding on EU External Migration Policy: The Member States and the Mobility Partnerships’ (2015) 34 Journal of
European Integration 223.
122 Sergio Carrera, R. Radescu and Natasja Reslow, EU External Migration Policies: A Preliminary Mapping of the Instruments, the
Actors and their Priorities, EURA-NET Project Report (Brussels, 2015).
28
trackers and smugglers’ rings; increasing returns of irregulars and overstayers; and, in
theory, also (like the Global Compact on Migration) at opening up legal pathways to countries
of destination. In the long-term, the declared main ambition is to tackle the root causes of
irregular migration to the EU by delivering development support to partner countries. And
on the ground, both also focus (disproportionately) on combatting ‘illegal migration’, rather
than adopting a more balanced, ‘triple win’, comprehensive approach.
The key dierence between the two is the plainness with which the ‘stick-and-carrot’
approach to negotiations is put on the table by the MPF 123 – perhaps emboldened by the
‘crisis’ climate prevailing since 2015. While the GAMM used the language of ‘partnership’ in
a conciliatory, diplomatic way – echoing the text of Article 78 of the Treaty on the Functioning of
the EU (TFEU) and Article 21 of the Treaty on the EU (TEU), the MPF is much more straight-
forward in acknowledging its bases in ‘eective incentives and adequate conditionality’,
subjecting any eventual ‘partnership’ between the EU and third countries explicitly to
‘cooperation on readmission and return [as] a key test’.124 The EU and its Member States
also make development cooperation openly subordinate to third countries’ eective implementation
of exit controls, so as to prevent departures and halt new arrivals onto EU territory. The Malta
Declaration, building on the MPF, makes this abundantly clear with regard to the external
aspects of migration policy and the Central-Mediterranean route.125
It is agreed that both the Malta Declaration and the MPF take inspiration from the
EU-Turkey ‘deal’ (or ‘Statement’ as is ocially referred to),126 which aimed to reinvigorate
– and simultaneously also ‘softify’ – the implementation of reciprocal (hard law) commit-
ments ensuing from the EU-Turkey Readmission Treaty of 2014,127 sidelining participation
(and control by) the European Parliament and the European Commission. A focus on the
content and eects of the deal’s application in practice is therefore justied as emblematic of
this ‘new turn’ towards the informalisation (and re-inter-governmentalisation) of international
relations, witnessed also on the global scene that preceding sections have highlighted.
The EU-Turkey Deal and the Informalisation of Legal Commitments
The EU-Turkey deal, reached on 18 March 2016, takes the form of a press ‘Statement’
intended not to produce (at least formally) any legally binding eects. The key was to make
Turkey accept – as it was understood it should, under the normal working of the EU-Turkey
––––––––––––––
123 Céline Bauloz, The EU Migration Partnership Framework: an External Solution to the Crisis?, (EU Immigration and Asylum Law Blog,
31 January 2017), available at: <http://eumigrationlawblog.eu/the-eu-migration-partnership-framework-an-external-solution-to-the-crisis/>
124 Council of the EU, External aspects of migration - Monitoring results, 4 Jul 2016, at: <http://data.consilium.europa.eu/doc/document/
ST-10822-2016-INIT/en/pdf>.
125 Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterra-
nean route, 3 Feb. 2017, at: <http://www.consilium.europa.eu/en/press/press-releases/2017/01/03-malta-declaration/>.
126 EU-Turkey Statement (n 120).
127 Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation,
[2014] OJ L OJ L 134/3.
29
Readmission Agreement – the ‘rapid return of all migrants not in need of international pro-
tection crossing from Turkey to Greece and to take back all irregular migrants intercepted
in Turkish waters’.128 The text establishes that migrants arriving in Greece must be registered
and their asylum applications processed in accordance with the EU Asylum Procedures
Directive 2013/32/EU.129 Furthermore, the Statement pledges that for every Syrian readmit-
ted to Turkey from Greece, another Syrian will be resettled from Turkey to the EU, prioritizing
those who may have not previously entered or attempted to enter the EU irregularly. Turkey
also undertook to adopt any measures necessary to prevent new irregular arrivals on Greek
islands and to cooperate with the EU to that eect. In return, EU Member States promised
to accelerate the visa liberalization roadmap, to reinvigorate the EU accession process, and
committed to transfer EUR 6 billion to Turkey under a dedicated Facility for Refugees.
A subsequent Joint Action Plan for the implementation of certain key provisions of the
Statement was adopted with the objective of speeding up its application – at the expense
of migrant rights. Indeed, the text insists on shortening processing times of asylum claims,
‘limiting appeal steps’, increasing safety, security and ‘detention capacities’ on the islands,
accelerating relocation and returns, and sealing the Greek northern borders to avoid secon-
dary movements.130 If followed to the letter, Greece will be turned into a pre-removal/return
processing hub for the entire EU, with the ‘hotspots’ on the islands serving as mass deten-
tion sites within the deal’s scheme, in disregard of basic fundamental rights guarantees.131
On its part, Turkey has taken back 1,798 persons from the Greek islands and halted the
exit of most migrants since the conclusion of the deal – going from a daily average rate of
11,428 arrivals to just 52 – although only 6,254 Syrian refugees have been resettled under
the ‘one for one’ formula foreseen in the Statement over the same period.132
The presumption is that Turkey is a ‘safe third country’ for returns from Greece. However,
Turkey maintains a geographical limitation to the 1951 Refugee Convention, thereby
denying any possibility to request and receive protection qua Convention refugees to
anyone holding the nationality of a non-European country. These persons can only obtain
recognition as ‘conditional refugees’, on a temporary basis, under the Turkish Law on
Foreigners and International Protection of 2014.133 This is one principal reason why the
Parliamentary Assembly of the Council of Europe,
134
as well as a host of NGOs and
scholars,135 have challenged the labelling of Turkey as a ‘safe third country’.136
Whereas Turkey is currently hosting Syrian refugees in excess of the 2.9 million ocially
––––––––––––––
128 EU-Turkey Statement (n 120).
129 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and
withdrawing international protection (recast) (‘APD’), [2013] OJ L 180/60.
130 Fourth report on the Progress made in the implementation of the EU-Turkey Statement, COM(2016) 792 nal, 8 Dec. 2016, Annex I.
131 Guild et al. Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection
for the Benet of Italy and Greece, PE 583.132 (European Parliament, 2017).
132 Sixth report on the Progress made in the implementation of the EU-Turkey Statement, COM(2017) 323 nal, 13 Jun. 2017, p. 2, 5
and 9.
133 Law on Foreigners and International Protection, Ministry of the Interior, Turkey, at: <http://www.goc.gov.tr/les/les/eng_minikanun_5_
son.pdf>.
30
registered,137 it is also well known that migrants (whether ‘voluntary’ or ‘forced’) are routinely
mistreated, including in pre-removal centres where they are arbitrarily detained to impede
their departure (or ight) to Greece.138
The situation in-country is equally problematic. In fact, reliable sources have reported that
‘Turkish border guards are shooting and beating Syrian asylum seekers trying to reach
Turkey’.139 The Turkish-Syrian border is closed and there are plans for a new border wall to
prevent crossings.140 Erdogan’s authorities have allegedly contributed to the degradation of
the situation in Syria by bombing Kurdish militia, disregarding risks for civilians,141 making
Turkey’s consideration as a ‘safe third country’ for forced migrants utterly unwarranted,
given notorious risks of direct and indirect refoulement.
In fact, illegal mass returns to Syria have been reported to be on the rise since the conclu-
sion of the EU-Turkey deal.142 Turkey has recently concluded 14 readmission agreements
with countries of origin of migrants and asylum seekers, thereby multiplying the risk of
forced repatriation in violation of human rights. Actually, Turkey is already returning people
(whether formally or informally) back to Afghanistan, Iraq, Pakistan, and Syria, where they
run a real risk of persecution and extreme danger to their lives.143 Erdogan’s government is
also restricting Turkish entry-visa requirements and negotiating further readmission treaties
with several refugee-producing countries, as a means to implement commitments towards
the EU according to the ‘deal’.
––––––––––––––
134
Parliamentary Assembly of the Council of Europe (PACE), Resolution 2109 (2016) on ‘The situation of refugees and migrants under
the EU–Turkey Agreement of 18 March 2016’, 20 Apr. 2016, at: <http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?leid-
=22738&lang=en>.
135
See, e.g., Vincent Chetail, ‘Will the EU-Turkey migrant deal work in practice?’, 29 Mar. 2016, at: <http://graduateinstitute.ch/home/
research/research-news.html/_/news/research/2016/will-the-eu-turkey-migrant-deal>; Favilli, ‘La cooperazione UE-Turchia per contenere il
usso dei migranti e richiedenti asilo: obiettivo riuscito?’ (2016) 10 Diritti Umani e Diritto Internazionale 405; Labayle and de Bruycker,
‘The EU-Turkey Agreement on migration and asylum: False pretences or a fool’s bargain?’, 1 Apr. 2016, at: <http://eumigrationlawblog.
eu/the-eu-turkey-agreement-on-migration-and-asylum-false-pretences-or-a-fools-bargain/>; Roman and Peers, ‘The EU, Turkey and
the Refugee Crisis: What could possibly go wrong?’, 5 Feb. 2016, at: <http://eulawanalysis.blogspot.co.uk/2016/02/the-eu-turkey-
and-refugee-crisis-what.html>. See also, Amnesty International, ‘Turkey: Illegal Mass Returns of Syrian Refugees Expose Fatal Flaws in
EU-Turkey Deal’, 1 Apr. 2016, at: <https://www.amnesty.org/en/press-releases/2016/04/turkey-illegal-mass-returns-of-syrian-refugees-expo-
se-fatal-aws-in-eu-turkey-deal/>; Human Rights Watch (HRW), ‘Turkey: Border Guards Kill and Injure Asylum Seekers’, 10 May 2016, at:
<https://www.hrw.org/news/2016/05/10/turkey-border-guards-kill-and-injure-asylum-seekers>.
136
Pursuant to the Union’s own denition in the Asylum Procedures Directive (n 132), for a third country to be considered safe, the ab-
sence of refoulement/ill-treatment risks and, crucially, ‘the possibility…to request refugee status and, if found to be a refugee, to receive
protection in accordance with the Geneva Convention’ is essential (Art. 38(1)(e) APD). Qualication of Turkey as ‘rst country of asylum’ is
unjustied as well, considering the situation of refugees there far from amounting to ‘sucient protection…including beneting from the
principle of non-refoulement’ in substantive and procedural terms (Art. 35 APD).
137
Syrian Regional Refugee Response, Inter-Agency Information Sharing Portal, 16 Feb. 2017, at: <https://data.unhcr.org/syrianrefugees/
country.php?id=224>.
138
See, ECtHR, Abdolkhani and Karimnia v Turkey, Appl. 30471/08, 22 Sept. 2009.
139
HRW, ‘Turkey: Border Guards Kill and Injure Asylum Seekers’ (n 139).
140
HRW, ‘UN: Press Turkey to Open Border’, 20 May 2016, at: <https://www.hrw.org/news/2016/05/20/un-press-turkey-open-border>;
‘Turkey’s new border wall to stop Syrian refugees’, Politico, 10 Oct. 2016, available at: <http://www.politico.eu/article/turkeys-new-bor-
der-wall-will-stop-syrian-refugees-immigration-instanbul/>.
141
‘Turkey bombs Syrian Kurdish militia allied to U.S.-backed force’, Reuters, 20 Oct. 2016, at: <http://www.reuters.com/article/us-mide-
ast-crisis-syria-kurds-idUSKCN12K0ER>.
142 Amnesty International, ‘Turkey: Illegal Mass Returns’ (n 139); and Amnesty International, A blueprint for despair: Human rights impact
of the EU-Turkey deal, (Feb. 2017), available at: <http://www.statewatch.org/news/2017/feb/ai-eu-turkey-deal-brieng-blueprint-for%20
disaster.pdf>.
31
All the above notwithstanding, in March 2017, the General Court of the CJEU disclaimed juris-
diction to hear and determine the actions of annulment brought by three asylum seekers
against the EU-Turkey Statement.144 In the respective Orders it served to the claimants, the
General Court considered that the press release containing the Statement is solely attributable
to the Heads of State or Government of the Member States of the EU, who met with the
Turkish Prime Minister on 18 March 2016, and not to the European Council itself. So, in the
absence of a (formal) act traceable back to any European institution, the Court considered
not to have competence to adjudicate the case.
This hyper-formalistic reading of the Court leaves several key questions unanswered and
leaves migrants and refugees at the mercy of whatever consequences the deal may lead to.
In particular, it is unclear whether the EU Member States had the power, in the rst place, to
act (completely outside the EU framework) in a matter, which was already thoroughly regu-
lated by the EU-Turkey Readmission Agreement. One may wonder whether the principle of
pre-emption did not impede a subsequent parallel (if informal) regulation of the exact same
subject matter by the Member States acting qua (independent) actors of international law,
as the General Court appeared to imply. Also doubtful is the inference that Member States,
acting qua autonomous sovereigns, had the capacity to commit ‘the EU’ to re-energising
accession negotiations, promising visa facilitation, or creating a Refugee Facility out of the
EU budget, if they were indeed acting in their autonomous international law competence.
But, beyond the discussion on the nature and legal character of the deal and its potential
violation of EU treaty-making rules,145 the most perilous development is the lack of any in-
vestigation by the Court of the material content and, especially, the eects of the measu-
res adopted under the umbrella of the ‘deal’, purportedly to implement the EU-Turkey
Readmission Treaty and tackle the ‘refugee crisis’. The impact of the joint endeavour by
the EU and Turkey to halt arrivals onto Greek soil on the rights of migrants was completely
ignored by the Luxembourg judges.146 No regard was had to the non-refoulement protec-
tions, the right to asylum, the prohibition of collective expulsion, or the freedom to leave any
country including one’s own inscribed in international and EU law.147
Putting ‘Deals’ (and ‘Compacts’) to the Test: The Dilution of Hard-Law Commitments via
Soft-Law Implementation
The lessons to extract from the MPF and its archetypical incarnation in the EU-Turkey deal
––––––––––––––
143 See e.g., Siegfried, ‘What will happen to migrants returned to Turkey?’, IRIN News, 12 Apr. 2016, at: <http://www.irinnews.org/analy-
sis/2016/04/12/what-%E2%80%8Bwill%E2%80%8B-happen-migrants-returned-turkey>.
144 Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council [2017] ECLI:EU:T:2017:128.
145 Cf. Gloria Fernandez Arribas, The EU-Turkey Statement, The Treaty Making Process and Competent Organs: Is the Statement and
International Agreement?’ (2017) European Papers — European Forum 1 and references therein.
146 Concurrently and extensively, see Sergio Carrera, Leonhard den Hertog and Marco Stefan, ‘It wasn’t me!’ The Luxembourg Court
Orders on the EU-Turkey Refugee Deal, CEPS Policy Insights No 2017/15 April 2017.
147 On the content and extent (including extraterritorial) of these protections, see extensively Violeta Moreno-Lax, Accessing Asylum in
Europe (Oxford University Press, 2017), chs 8, 9 and 10.
32
may be an anti-climax to diplomatic negotiators taking part in the dierent rounds of
conversations that will precede the adoption of the Global Compact for Migration. But they
must be taken into account nonetheless.
The softication of hard-law commitments into low-regulation, second-range implementing
documents that the EU strategy represents should ring alarm bells in Geneva, New York
and elsewhere. The result of the EU-Turkey deal on the ground has been a fast dilution of
legal obligations and concomitant responsibilities, leaving aside the damning bypassing
of democratic scrutiny by the European Parliament through the short-circuiting of EU
treaty-making rules, as enshrined in Article 218 TFEU. The solution reached by the one and
only nal arbiter of EU law (as per Article 19 TEU) is also discouraging on the whole. It feeds
legal uncertainty and circumvents EU fundamental rights guarantees, thus heightening the
risk of violations, dispossessing those concerned of the procedural and judicial protections
inherent in legally-binding instruments, according to the rule of law.148
If the Global Compact takes the same route, it is hard not to forecast a similar (disastrous)
outcome, retrogressing to times prior to the UDHR. A return to ‘pure’, hegemonic forms
of inter-governmentalism that ignore the posterior evolution of international law, especially
after human rights were introduced in legally-binding form, would amount to the dismantling
of the international system as we currently know it, leading to the (illegitimate) de-sub-
jectivisation of the individual as an actor and holder of international entitlements. The voice,
interests, and rights of migrants must be kept at the centre of any negotiations regarding
international mobility, if the core principles of the international legal system are to be preserved150
.
While recognising the diculties attached to global migration management, ‘problems with
[administering] migratory ows cannot justify recourse to practices which are not com-
patible with [State] obligations…’.151 States the world over do have a sovereign right
to control entry into their territories and negotiate joint arrangements to administer orderly
cross-border movements, but they ought to exercise that power within the limits imposed by
international (refugee and human rights) law. Self-serving policies, possibly mistaking
‘orderly’ migration for the outright containment of unwanted ows, are incompatible with a
good faith understanding of legal obligations vis-à-vis migrants and those in need of inter-
national protection. Negotiators in New York and Geneva should keep this in mind to avoid
committing the mistakes of the EU-Turkey deal and MPF framework and uphold the promise of
a humane, migrant-centred system as the basis of a Global Compact that respects dignity
and fundamental rights.
––––––––––––––
148 Art 2 TEU.
149 On this point, see Violeta Moreno-Lax, ‘The EU Humanitarian Border and the Securitization of Human Rights: The “Rescue-through-In ter-
diction/Rescue-without-Protection Paradigm’ (2017) Journal of Common Market Studies (forthcoming).
150 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) [1970] ICJ Rep. 3.
151 ECtHR, Hirsi Jamaa and Others v. Italy, Appl. 27765/09, 23 Feb. 2012, para. 179.
152 ECtHR, Abdulaziz, Cabales and Balkandali v. UK, Appl. 9214/80, 9473/81 and 9474/81, 28 May 1985, para. 67: ‘…as a matter of
well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its
territory’.
33
SECTION 5:
Conclusions
Elspeth Guild
The question which we posed ourselves at the outset was what is a compact and what
relationship do compacts have with international human rights law, in particular in regards
to migrants. This question is of great importance in light of the UN’s NY Declaration
calling for two global compacts, one on refugees and the other for safe, orderly and regular
migration. Does the form of the international community’s proposed commitments to safe,
orderly and regular migration, the Compact, aect states’ human rights obligations to
migrants? The objective of this working paper has not been to give a detailed overview of
the hierarchy of norms within the UN system. Nor even has it be to pin down exactly what
legal obligations the Compact may have but rather to examine what a Compact is capable
of performing and how those functions intersect with human rights.
The NY Declaration makes more than 35 references to human rights and the importance
of ensuring that they are fully respected. Paragraph 5 of the Declaration states “We rearm
also the Universal Declaration of Human Rights and recall the core international human
rights treaties. We rearm and will fully protect the human rights of all refugees and
migrants, regardless of status; all are rights holders.” There is no doubt that UN Member
States in adopting the Declaration expressed their full commitment to upholding the inter-
national human rights standards to which they have signed up. So why are there any
questions about the compatibility of Compacts and international human rights commit-
ments regarding migrants? The problem becomes apparent in the analysis of the Compact
form.
As Gammeltoft Hansen sets out in the rst section, although the Compact is a soft law
instrument it is bound to become an important one. It is likely to engage states through
the inclusion of technical and standard setting norms – often dicult to test against human
rights claims of individuals who become the end objects of those norms. While human
rights obligations contained in binding agreements ratied by states will always take priority
over soft law instruments, the issue becomes state behaviour. Where soft law instruments,
in creating technical norms, open-ended language and sanction avenues of action for state
authorities regarding migrants which are of dubious consistency with the human rights of
those migrants, a slide away from delivery of human rights to migrants can well result. In
practice, this is a problem which is often encountered in the eld of expulsion where tech-
nical norms regarding the speed of expulsion make it no longer possible for migrants to
mount an eective challenge to the legality of their expulsion.153
Soft law instruments do not always lead to greater human rights protection. As Gammeltoft
Hansen stresses, there is no guarantee that it will improve migrant protection. It is also quite
––––––––––––––
153 François Crépeau and Jimenez Estibalitz, ‘Foreigners and the right to justice in the aftermath of 9/11’ (2004); François Crépeau,
‘When Recourses Fail to Protect: Canadian Human Rights Obligations and the Remedies Oered to Foreigners against Immigration
Decisions’ 7(3) European Journal of Migration and Law (2005) 275.
34
possible, as a number of actors have indicated, that the Compact will be used as a basis
for new hybrid instruments focusing on migration governance which are designed with
references to human rights in their preambles but push states towards practices which are
contrary to their human rights obligations on the basis that such practices are desirably in
the eyes of their (more powerful) neighbours.
The term Compact itself is not without diculties. As Roele points out, in dierent ocial language
version of the NY Declaration dierent terms have been used which are not consistent with
a Compact. In fact, it seems that Pact might be a better English term more consistent with
the French and Spanish ocial texts. Nevertheless, the proposed Compact will undoubtedly
by a hybrid instrument which will bundle together norms notwithstanding the lack of clarity
which underlies the Compact regarding what is safe, orderly and regular migration in any
event. It is possible, as Roele examines, that a soft law or hybrid instrument can inu-
ence the interpretation of hard law obligations. This can be both forward and backward
looking – changing the way states apply their human rights obligations to migrants.
In the next two sections, Panizzon and Moreno-Lax examine other kinds of package deals and
the human rights impacts which they have had. Panizzon explores the meaning of a packaging
approach, bringing together diverse policy areas to seek to inuence and impact on di-
cult policy areas. The issue-linkage of migration with other areas, such as development as
planned for the Global Compact for Migration, can leverage international agreement but at
a possible cost. A comparison with linkages in partnership approaches between the
development of the WTO and the Compact for Migration is interesting. The dierence in the
subject matter however – from goods and services to people often in vulnerable situa-
tions – unravels the comparison. Looking at the examples of EU compacts with third states
in the eld of migration, the problems emerge. In particular the Compact for Jordan 2015
according to which trade preferences would be accorded to Jordan for goods produced
with 25% refugee labour and substantial sums would be provided for development on con-
dition that Syrian refugees living in camps in that country abandon their right to leave any
country guaranteed by Article 13(4) Universal Declaration of Human Rights. But the human
right belongs to every individual and cannot be bartered away by state authorities which
are temporarily hosting the individual. Indeed, not even an individual can renounce his or
her human rights, particularly not for economic gain. But what a compact of that kind can
do is make it very dicult if not impossible for the individual to exercise his or her right or to
get a remedy against its denial. By subsuming Syrian refugees into a body and agreeing
with the host state where they are living that they should not be permitted to exercise their
human rights in return for a benet to the country, the individual nature of human rights is
impaired. The outcomes are not neutral nor do they simply result in better migration
governance. They actively harm migrants. This is even more apparent in the case of the EU
compacts with Jordan and Lebanon where the trade-o for reduced taris for goods made
by refugees beneting Jordan and Lebanon is enhanced enforcement of EU hard border
control objectives.
Moreno-Lax follows up this quandary by examining the EU Turkey Statement 2016 according
to which Turkey agreed to take back all Syrian refugees arriving in Greece from their shores
in return for resettlement of another Syrian from Turkey to the EU. Notwithstanding the
existence of an EU Turkey Readmission Agreement the parties preferred a more informal
measure not intended to produce any legally binding eects. So far, the strategy has paid
35
o as a legal challenge to the EU Turkey Deal (as it is called) was held inadmissible by the
EU’s Court of Justice because it was not in a binding form adopted in accordance with the
EU Treaties. Evidence of substantial human rights abuses against Syrian refugees in Turkey
and the lack of a remedy demonstrates just how pernicious soft law instruments can be in
validating human rights non-compliant actions by states.
The message is clear, soft law and hybrid instruments do not necessarily result in better
human rights protection. In the highly charged eld of migration, this is particularly true.
Powerful states where leaders have used anti-immigrant rhetoric in their political campaigning
are fully capable of crafting convergence on migration governance policies which are highly
questionable from a human rights perspective but equally desirable from the political
perspective of some politicians. Reframing existing human rights obligations in ways which
purport to diminish protection for migrants is not new. But it always puts strain on the legal
and judicial authorities which apply the laws. When legislatures permit repressive acts to
come into force on the basis that they are nonetheless consistent with human rights duties
because they are founded on good practices set out in hybrid or soft law measures, human
rights are the victims.
The Global Compact for Migration must not fall into this trap of purporting to signal interna-
tional acceptance of practices which are human rights incompatible. The negotiations must
not become mired down in questionable trade-os regarding, in reality, the rights of citizens
of poor or weak countries in the interests of migration governance policies by stronger or
richer ones. Rich or powerful countries must not be able to buy their way out of reciprocity
of migration governance policies which in eect will never be applied to their citizens but
always to those of other states. Such failure of reciprocity leads inextricably to human rights
violations as richer or more powerful states are relieved of the need to explain to their citi-
zens why they are being treated so badly in a third country. Instead these states can focus
on creating a so-called hostile environment for the citizens of weaker and poorer states who
happen to be present on their territory. To be truly global the Compact needs to take as
its starting point the genuine delivery of human rights to migrants wherever they are and it
must ensure that they have access to justice to defend their rights.
