Hannah Birkenkötter
PhD Candidate and Research Fellow at Humboldt Universität zu Berlin, Chair for Public Law and Legal Philosophy
hannah.birkenkoetter@rewi.hu-berlin.de
Sinthiou Buszewski
PhD Candidate at Walther Schücking Institute for International Law and Research Fellow at Freie Universität Berlin
sbuszewski@wsi.uni-kiel.de
The adoption of the United Nations (UN) Global Compact for Safe, Orderly and Regular Migration has sparked ongoing controversy since the end of 2018. With several states opting out of a consented document in the last minute, the Global Compact has faced an exceptionally intense level of public scrutiny. In Germany, the views expressed by commentators like Reinhard Merkel are typical examples of the criticisms also voiced against the Compact in other countries. In a nutshell, Reinhard Merkel argues:
- While the Global Compact is not formally legally binding, it will have legal effects at two levels. First, the Compact will contribute to the development of customary international law. Second, it will have immediate effects in Germany because German courts will have to consider the Compact when interpreting domestic law.
- The provisions of the Global Compact endlessly praise migration. The Compact views migration as a blessing for humankind and neglects the associated social problems. It will lead to considerably higher migration movements to Germany.
- The Global Compact is a subject matter of parliamentary importance. It should have been discussed much earlier in the German Bundestag and in the general public.
It is not surprising that these arguments are introduced together. Those sceptical about the Compact’s content will fear its legal effects more so than somebody who endorses the Compact’s substantive content. Nonetheless, we can analyse individually each of the arguments above.
Will the Compact on Migration become customary international law?
To answer this question, we have to differentiate between those provisions that already constitute customary international law – such as the obligation to respect basic international human rights – and those provisions that do not reflect current customary international law. The Global Compact refers to the right to be heard and the principle of legal certainty (objective 12), the protection of human lives (objective 8) and the prohibition of discrimination (objective 17). These objectives are protected under international human rights law and already constitute customary international law.
But what about other provisions, such as the request to collect and provide relevant information and data about migration (objectives 1 and 13)?
As stated here, here, and by the German Federal Foreign Office, the Global Compact is so-called “soft law”, i.e. an instrument which is not legally binding, but which can be an indicator for future emerging international law, be it customary law or treaty law. However, the process of international customary law-making is not a matter of course. Customary international law requires a certain legal practice (consuetudo) and the legal conviction that the practice is considered law (opinio iuris). The Global Compact states explicitly that its provisions are not legally binding (para 7). That makes it impossible to argue that the parties to the Global Compact acted with the conviction that the provisions are legally binding. Even if the provisions were indeed implemented in the future, this would not automatically create customary international law.
Of course, non-legally binding documents can be the foundation of further political negotiations – again, they can. Political negotiations are rarely linear and normally take years, if not decades. By way of comparison, one of the most important international summit outcomes of the 1990s was the Rio Declaration and Agenda 21, which laid the foundation for an international policy process in the field of environmental protection and sustainability. Like the Compact on Migration, both documents are non-legally binding declarations containing various political declarations of intent. The Rio conference took place in 1992, but only in May 2018 the U.N. authorized that an ad-hoc working group charged with drafting a legally binding instrument in general environmental law (the “Pact for the Environment”) be set up, and the Working Group first met in January 2019. It took almost 20 years of multilateral negotiations to decide that a legally binding document would be necessary, and we still have a long way to go until there will be an outcome document.
It is thus rather unlikely that a non-binding U.N. summit document will immediately lead to similar obligations under international law. A document like the Global Compact for Migration will be the starting point for a multilateral political process, rather than the end of it. It is indeed possible that the process leads to legally binding international norms at some point, but this is by no means automatic. Politics is not the same as law. National governments hold considerable control over such a process.
Will the Compact have legal effects because domestic courts will take it up?
Another popular argument by critics is that the Global Compact for Migration will have legal effects because national courts will have to consider it when interpreting domestic law. Of course, it is hypothetically conceivable that national courts take into account non-legally binding international norms when interpreting national laws. But this presupposes, first, that domestic courts in fact routinely consider and apply international norms. At least for German courts, this is empirically unfounded: e.g. the 2030 Agenda, adopted in 2015 and described by the U.N. Secretary-General as a “defining moment in human history”, cannot be found at all in Germany’s largest case database, juris, with over one million cases.
Second, and more importantly, we need to ask whether cases exist in which a court would decide differently than it would when applying only its domestic law. This depends on the respective domestic legal order. In Germany, we can confidently say that the Global Compact will not – and indeed cannot – lead to a situation in which a German administrative court would decide differently only because it considers the provisions of the agreement (we have elaborated on this point here). The provisions in the Global Compact are not only non-legally binding, they are also abstractly formulated and do not go beyond what is already German law. We suspect that this is the case for a number of states that opted out of the Global Compact last minute, especially for EU member states.
All hail international migration?
Is the Compact a one-sided praise of migration, as some critics claim? While the Compact notes that migration has been a “part of the human experience throughout history” that can bring positives like “prosperity, innovation and sustainable development” a careful reader will observe that the Compact also refers to the challenges posed by migration: “Nonetheless, migration undeniably affects our countries, communities, migrants and their families in very different and sometimes unpredictable ways. It is crucial that the challenges and opportunities of international migration unite us, rather than divide us” (paras 8 and 9).
Additionally, objective 2 of the Compact explicitly commits to minimizing the adverse structural factors compelling people to leave their country of origin by creating, “conducive political, economic, social and environmental conditions for people to lead peaceful, productive and sustainable lives in their own country…, while ensuring that desperation and deteriorating environments do not compel them to seek a livelihood elsewhere through irregular migration” (para 18).
Combating the causes for irregular migration and flight hardly leads to more migration. It is not clear to us how the Global Compact would cause an increase in migration to Germany and other Westerns countries. The agreement addresses the “how” of migration and which processes should be improved. At no point does the Global Compact demand a state to allow a certain number of migrants to enter, neither does it touch on the question “if” people should be allowed to enter the country.
Outlook: A call for more public debates on multilateral processes
The above analysis shows that the Global Compact is a first step towards a multilateral process that won’t have immediate legal effects – at least not in the short- and mid-term.
Should there be a broader public discussion about the content of a future legal framework for migration? Yes.
Could such a debate have started earlier? Again: yes.
The UN has in the past decades opened up processes to include different actors such as civil society groups and members of national parliaments. This is the case here: The negotiations for the Global Compact were open, all documents are publicly available. But in Germany’s case, only one member of parliament, Sevim Dagdelen, took the opportunity to participate in the negotiations. This must change. And it should change beyond the hot topic of migration.
Multilateral political processes are rarely the subject of public conversation at the domestic level. The 2030 Agenda for Sustainable Development is a prominent example: it ambitiously claims to be an Agenda involving all countries alike (para 5) and touches upon issues that are relevant for the German domestic context, such as social inclusion, gender equality or sustainable cities. Yet, according to a recent survey less than 10% of the German population know what the 2030 Agenda is. There are many more examples of highly ambitious and important international policy agreements that are and remain completely unknown to the wider public.
The question of how to design multilateral political negotiations in a transparent and participatory manner is fundamentally important for global cooperation to be sustainable and legitimate. It could also contribute to overcoming some of the (mis)perceptions surrounding the effects of multilateral processes like the Global Compact for Safe, Orderly and Regular Migration.
This article is an abridged and translated version of “Das Spiel hat gerade erst begonnen: Zur Kritik am Migrationspakt” which first appeared on the VerfBlog in December 2018.