The Legal Effects of the Global Compact for Safe, Orderly and Regular Migration: EU Development Policy and Irregular Migration Management
The Global Compact for Safe, Orderly and Regular Migration (GCM) explicitly states that it ‘presents a non-legally binding, cooperative framework’. As a result, the GCM’s non-binding nature is not normally questioned. However, it has been pointed out that, even if legally non-binding, the GCM consolidates existing human rights obligations, which are legally binding upon states, contains a commitment to non-regression with regard to these standards, and, moreover, is politically binding. This means that rather than setting new standards, the GCM consolidates existing law, while spelling out how states should act in order to comply with this existing law.
Framing the GCM, as well as its counterpart, the Global Compact on Refugees (GCR), as non-binding is likely to have contributed to governments endorsing both instruments. States may be more willing to endorse an instrument which is not considered to introduce any new obligations. Yet, a leaked 2019 document produced by the European Commission’s legal service, titled ‘The legal effects of the adoption of the Global Compact for Safe, Orderly and Regular Migration by the UN General Assembly’ suggests that, contrary to the predominant view that the GCM is non-binding, it has ‘legal effects’, specifically on EU development policy. While interpreting EU asylum law in line with GCM provisions and standards can serve to improve the rights of refugees, asylum-seekers and other migrants, the general view that the Compact is non-binding makes this an optional (though desirable) exercise. Suggesting that the Compact has legal effects on EU development policy, however, may lead to the conclusion that designing and interpreting legislation in this area in line with GCM standards ought to be mandatory. Thus, the GCM may have a much greater impact on states’ existing and future laws and policies than they thought it would.
In this policy brief, we consider the Commission legal service’s arguments regarding the legal effects of the GCM. We argue that the legal service opinion has the potential to address the effects of the long-standing intrusion of policy on irregular migration into the realm of development policy and its damaging effects on the rights of (irregular) migrants. This, in turn, has implications for future policy in this area.