*Editorial* **The Rule of Law and Human Mobility in the Age of Global Compacts: Relativizing the Risks and Gains of Soft Normativity?**

**Marion Panizzon 1,\*, Daniela Vitiello <sup>2</sup> and Tamás Molnár 3,4**

	- <sup>3</sup> European Union Agency for Fundamental Rights, 1040 Vienna, Austria

#### **1. Global Compacts: Between Legal Aspirations and Political Achievements**

The 2016 New York Declaration,<sup>1</sup> for the first time in United Nations (UN) history, coalesced a diverging palette of regional and a few multilateral efforts before the UN General Assembly. The uniqueness of this global cooperation effort is still felt today, despite the fact that only 155 out of the voting 164 UN Member States endorsed the subsequent Global Compact for Safe, Orderly and Regular Migration (GCM).2 However, from the legal perspective adopted in this *Special Issue*, the GCM's compilation of standards and practices stopped mid-way before settling on a source of law-like quality or on standard-setting for the national, regional, and multilateral norms as well as on practices that it had identified, collected, and arranged globally. Hence, the predominance of the "soft" and "opaque" in international migration law is nowhere as tangible than in case of the GCM (Chétail 2020, pp. 254, 265).

The GCM commits (at least) 155 UN Member States to align to its 23 objectives and 10 guiding principles, the majority of which focus on the proclaimed aspiration to turn dangerous migratory routes and unsafe journeys into regular pathways by "strengthening international cooperation" for effective migration management (objective 23 of the GCM). Though this call for cooperation does not challenge the traditional premise of the international ius migrandi, since the mainstay of migration trajectories remains governed by the sovereign right of states to decide over whom to admit, the GCM acts as a launchpad for states to experiment with creative solutions to other phases throughout the "migration cycle" (paragraph 16 of the GCM). Since many of these inroads to sovereignty start out, understandably, as experiments, their legal formats resemble nonbinding partnerships, common dialogues, joint guidelines, action plans, and pilot projects. Consequently, the diverse carve-outs that states hold each other actionable for remain "blurry" in comparison to the clear and precise language of binding obligations (Vitiello 2022 in this *Special Issue*). In addition, the GCM's boundaries towards the formal sources of law-making remain "fuzzy", which is one of the reason the GCM has been labelled a "concept without a settled meaning in international law".<sup>3</sup> In consequence, it makes sense for legal scholars to contextualize the law-making of the GCM within concepts such as soft law, governance, and

**Citation:** Panizzon, Marion, Daniela Vitiello, and Tamás Molnár. 2022. The Rule of Law and Human Mobility in the Age of Global Compacts: Relativizing the Risks and Gains of Soft Normativity? *Laws* 11: 89. https://doi.org/10.3390/ laws11060089

Received: 8 December 2022 Accepted: 9 December 2022 Published: 15 December 2022

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<sup>1</sup> UN General Assembly, New York Declaration for Refugees and Migrants. Resolution adopted by the General Assembly on 19 September 2016, UNGA Res 71/1 (2016) UN Doc A/RES/71/1.

<sup>2</sup> UN General Assembly, Global Compact for Safe, Orderly and Regular Migration. Resolution adopted by the General Assembly on 19 December 2018, UNGA Res 73/195 (2018) UN Doc A/RES/73/195.

<sup>3</sup> Statement by the Representative of the Philippines, UN General Assembly, Plenary, 73rd session, 60th and 61st meetings, 19 December 2018, General Assembly Endorses First-Ever Global Compact on Migration, Urging Cooperation among Member States in Protecting Migrants, UN Meetings and Press Coverage. Available online: https://www.un.org/press/en/2018/ga12113.doc.htm (accessed on 9 December 2022).

treaty interpretation, which all are categories of legal inquiry uniting the authors of this *Special Issue*.

If this research has been premised on the paradigm of the "quasi-legal system" which is often associated with soft law as the GCM embodies, there is evidence that the GCM nonetheless encourages states to achieve a certain coherence towards other fields of law (Guild et al. 2019). In result, states tread a thin line between politically benefitting from joining this cooperation framework while, at the same time, being called upon to normatively affirm the actions, to which they committed to politically, through adopting implementing national legislation (Molnár 2021). At the same time, the voluntary nature of reporting before the GCM review bodies can entice states to "cherry-pick" over which action out of the 23 objectives they wish to report on and over which ones to abstain, as Farahat and Bast (2022) point out in a recent collection of articles on the GCM. Hence, in come the 10 guiding principles of the GCM, some of which promote coherence while others exacerbate the risk of fragmentation. In particular, the GCM's third guiding principle, national sovereignty, stands diametrically opposed to some of the others, including international cooperation and the whole-of-government/society approach, and thus undermines the vision of the "first intergovernmental agreement prepared under the auspices of the United Nations [ ... ] to cover all dimensions of international migration in a holistic and comprehensive manner" borrowing the words of the Office of the UN High Commissioner for Human Rights.4

Instead of remaining entrapped in the closed-circuit of "sovereignty" being pitted against "international cooperation", this *Special Issue* selects the rule of law and due process as two out of the 10 guiding principles. Our choice is justified by the fact that these figure as the only two principles, which the GCM drafters extracted from national legal systems (also being general principles of international law), and which carry a normative value that can be judicially reviewed. In this *Special Issue*, all eight contributions address these two general principles of law, either because they "consolidate practices", in view of creating an inventory, or because, more ambitiously, due process and rule of law are co-responsible for "expanding" national, local, bilateral, regional, and multilateral norms (Chétail 2020).

Already within the legal aspiration to "make migration work for all"5 lies an assumption that global cooperation should not work in silos—as Aleinikoff has suggested (Aleinikoff 2007, p. 267). The guiding principles connect states to their obligations under international law, and thus contribute to achieve "comprehensive" commitments when states are called to implement the GCM in a manner that is "consistent with [their] rights and obligations under international law" and to attain "policy coherence".<sup>6</sup>

At the same time, as the 2015 Global Commission for International Migration (GCIM) Report (p. 7) flagged, the narrative of "comprehensiveness" risks producing outcomes which are worlds apart from being desirable for migrants and responsive to fulfilling their human rights.7 Only if comprehensiveness means acknowledging the complexity of each migrant's situation can human rights be sufficiently guaranteed. Hence, extensive recourse to border procedures, including mass screening at the borders, often coupled with comprehensive data mining on migrant routes and destinations, occurring at the expense of due process rights and access to justice, are several such contentious modes. This explains why a more comprehensive and integrated approach to human mobility should be informed by due process and the rule of law, especially if one goal of global cooperation is to resonate with a human-rights-driven approach (see Section 1.1, below).

<sup>4</sup> Office of the UN High Commissioner for Human Rights, *Global Compact for Safe, Orderly and Regular Migration (GCM)*. Available online: https://www.ohchr.org/en/migration/global-compact-safe-orderly-and-regularmigration-gcm (accessed on 9 December 2022).

<sup>5</sup> Ibid.

<sup>6</sup> Ibid., para 41: "emphasize that the Global Compact is to be implemented in a manner that is consistent with our rights and obligations under international law".

<sup>7</sup> Global Commission on International Migration (GCIM), "Migration in an Inter- connected World: New Directions for Action", Report 2015. Available online: https://www.iom.int/global-commission-internationalmigration (accessed on 13 December 2022).

In addition, the GCM upholds a rigorous dichotomous approach to the migration– refugee nexus, as also confirmed by the parallel existence of the Global Compact on Refugees (GCR).8 As a result, the legal aspiration of revitalizing global partnerships for the sustainable management of cross-border human mobility, a programmatic element in objective 23 of the GCM and already found in the 2016 New York Declaration,9 falls short of enabling effective interconnections between the respective commitments, actions, and guiding principles of the two Global Compacts. The result is a "kaleidoscopic" melting pot of action plans, commitments, and objectives (Chétail 2020). Yet, some general principles are steeped so deeply in the narrative behind the Global Compacts that they are more likely to penetrate domestic implementation than others, despite the Compacts' unascertained acceptance by certain national policymakers. Such basic tenets are the rule of law, due process, and good governance, which assume a pivotal role among these principles because they stand out in their "legal-like" quality from the other eight principles (Cholewinski 2020, p. 311). In particular because of the GCM's soft law frame, this triad transmits a cornerstone of a (hard) legal agenda by encapsulating the noyeau dûr of the right to an effective remedy as a limitation against arbitrary and discriminatory action by public authorities. On the one hand, getting rid of them through this cherry-picking approach (Farahat and Bast 2022), which characterized the first International Migration Review Forum (IMRF)'s monitoring of states' practices, would mean renouncing to the very same legal-like aspirations leading to this first, comprehensive framework on international migration at the global level. On the other hand, the ten "guiding principles" could then stand as the bright-line rule to be complied with by all UN Member States, which guarantee against states watering down their human rights obligations when implementing the Global Compact on Migration. Among those, the duo of due process and the rule of law potentially could sharpen the contours of an otherwise invisible judiciary and of judicial review.10 The close-to absent role of the judiciary, is just one of the hicks in the GCM's 360-degree vision of comprehensiveness. Another is the dual sides of the concept of "global": firstly "global" implies that "comprehensive" complies with a whole-of-society approach, in the sense of involving all stakeholders, especially in the Global North, for actions, policies, and commitments that may render human mobility safe, regular, orderly, and dignified (Gombeer et al. 2019; Baxi 2016). Secondly, "global" refers to UN-leadership in managing international migrations. Yet, both notions of "global" derive from an "institutions"-driven orientation, which covers up a severe lacunae within comprehensiveness, which is the absence of concretizing universally binding norms. Whereas the GCM is imagined and narrated as "comprehensive" (Pécoud 2021), the vague quality of formulation when it comes to its alignment to UN conventions and public international law, accounts for its close-to absent universality. In result, a relativist ontology whitewashes the GCM just as its "global" aspiration pays only a lip service to the complexity of levels and actors involved in contemporary migration governance, from the local to the multilateral levels.

In this *Special Issue*, international and EU legal scholars and practitioners have filtered out key doctrinal, judicial, institutional, and political challenges which shape the ongoing implementation phases of both Global Compacts, with a specific focus on the GCM. Whereas some articles focus on systemic flaws and potential opportunities cutting across both Global Compacts, other authors focus in on how to legally analyse and contextualize a specific GCM objective. A third set of articles have opted for a comparative legal analysis of the Global Compacts by identifying gaps and loopholes, or, inversely, scoping for benchmarks and minimum standards evolving. Cutting across all articles is

<sup>8</sup> UN General Assembly, Global Compact on Refugees. Resolution adopted by the General Assembly on 17 December 2018, UNGA Res 73/151 (2018) UN Doc A/RES/73/151.

<sup>9</sup> UN General Assembly, 'In safety and dignity: addressing large movements of refugees and migrants,' UN Doc A/70/59, 21 April 2016.

<sup>10</sup> Committee on Migrant Workers Discusses Draft General Comment on the Convergence of the Convention and the Global Compact for Safe, Orderly and Regular Migration, 28 September 2022: https://www.ohchr.org/ en/press-releases/2022/09/committee-migrant-workers-discusses-draft-general-comment-convergence (accessed on 9 December 2022).

a critical appraisal of the imprimatur provided by the global commitments to firming up innovative cooperation strategies and migration governance modes in national and regional legal frameworks, alongside a scholarly analysis of the interdependence and separation of migrant and refugee statuses, as affected and mediated by the triangular relationship between host, transit, and sending countries (see objective 2 of the GCM).

#### *1.1. The Interplay between Human Rights Anchorage and Good Governance in the Global Compacts*

A particular focus of scholars and practitioners alike has been the human rights anchorage in the Global Compacts (Gammeltoft-Hansen et al. 2017; Guild 2018; Hilpold 2020). Whereas the duty to respect, protect, and fulfil the human rights of all migrants figures as a guiding principle of the GCM, which self-proclaims being grounded in the 1948 Universal Declaration of Human Rights (as well as the nine core UN conventions of international human rights law (IHRL)11, this human rights anchorage lies at the heart of the debate about the repercussions that soft law status has on individual migrants and their families. At a second glance, however, the alignment to human rights and international legal obligations (para. 42 of the GCM) fails to motivate a type of legislative activity that might serve to supersede the asymmetric relation between national sovereignty and human mobility across international borders.

At the same time, the principle of good governance—forming a stronghold of the GCR, defended in earlier drafts of the GCM—appears quite diluted in the GCM's final text (Pécoud 2021), where it figures as both a guiding principle, and under objectives 2 and 23 of the GCM, while failing to appear in the first IMRF Progress Declaration, adopted in May 2022.<sup>12</sup> Nonetheless, good governance commits states to respect a degree of procedural legitimacy over decisions to admit and orders to expel migrants and their families (Höflinger 2020; Cholewinski 2020). In this sense, the due process/rule of law guarantees of paragraph 13 of the GCM open the door for judicial review, which in turn associates the GCM with a legally much deeper alignment among the different levels of international migration law than what mere "policy coherence" under objective 23 of the GCM implies. Yet, if objective 23 aspires to an interpretation "consistent" with bilateral and multilateral treaties, the soft law quality of the Compact renders it uncertain whether a "convergence and complementarity" can also be requested from the GCM when read in relation to the nine core UN human rights conventions, the WTO/GATS agreements, the UN Framework Convention for Climate Chance, and the UN Convention to Combat Desertification can be reached, as Desmond (2022) developed for a *Special Issue* on the GCM. How arts. 31 and 32 of the Vienna Convention on the Law of Treaties, VCLT apply to a soft law framework is one issue is one question (Yildiz in this *Special Issue*), another relates to how the respective membership within a given convention and the GCM overlap or fail to match (art. 31:2(a) of the VCLT; see also Ammann 2019; Desmond 2020).

The GCR, in turn, raises further human rights issues, especially in light of the potential role of the surrogacy principle in expanding the definition of refugee (Burson and Cantor 2016) and the Compact's "States plus" approach to multilateralism (Triggs and Wall 2020), mounting expectations for a more equitable and predictable system of burden and responsibility sharing for the world's refugees in the aftermath of the 2019 Global Refugee Forum.

A starting point for concretizing the GCM's 23 objectives might be departing from the guiding principles, some of which embody general principles of law. For instance, both Global Compacts acknowledge and uphold the principle of non-discrimination and call for "child-, gender-, age-, linguistically, culturally, faith and health-responsive policies" (Guild et al. 2019).

<sup>11</sup> Office of the UN High Commissioner for Human Rights, The Core International Human Rights Instruments and their Monitoring Bodies. Available online: https://www.ohchr.org/en/core-international-human-rightsinstruments-and-their-monitoring-bodies (accessed on 9 December 2022.

<sup>12</sup> Progress Declaration of the International Migration Review Forum. Resolution adopted by the General Assembly on 7 June 2022, UNGA Res 76/266 (2022) UN Doc A/RES/76/266.

In addition, the GCM is construed on a strong stand-still premise, featuring the principle of non-retrogression as a benchmark for future developments.

Nonetheless, this terminology betrays the full endorsement of conservative solutions, and has rather exacerbated than mitigated existing antinomies and inconsistencies in the normative structure of the Global Compacts (see, e.g., Panizzon and Daniela 2019), implying that some people on the move are still "left behind", either because of their legal status or the route chosen (Pijnenburg and Rijken 2021). By the same token, neither the quest for safe, orderly, and regular migration via global partnerships (in objective 23 GCM), nor that for more equitable and predictable systems of refugee responsibility sharing (under the GCR), seem to affect the existing balance between human mobility and state sovereignty (Guild 2018).

In this sense, as Guild et al. (2019) critically observed, the GCM is propagating a parahuman rights vernacular of "-sensitive, -responsive, -relevant policies"—labeled in paragraph 13 of the GCM as "principles"—that, for the most part, fall short in advancing respect, protection, and the fulfilment of human rights obligations. Overcoming these flaws would call for alternative and creative solutions, which might lie (inter alia) in reading the GCM and GCR "together" to improve international protection—as Garlick and Inder (2021) suggest.

#### *1.2. A Constructive Role for a "Principled Approach"?*

Already in 2015, the Global Commission for International Migration suggested that "principled" approaches to laws, norms, and human rights should be taken to ensure the efficiency and predictability of the law's application to migrants, in particular because migrants are exposed to norms and laws from such varied and different sources: regional, national, and bilateral (GCIM Report 2015, p. 53). From this perspective, the adoption of a principled approach in the GCM cannot be underestimated. Although the "guiding principles" enshrined in the GCM represent a platform of mutual soft law commitments, which cannot be equated to the "general principles of law",13 in a field as divisive as international migration law (IML) the mere fact of listing them at the outset of a global cooperation framework seems to already be an important achievement. Indeed, these principles capture a legal essence and, thus, they may "constitute both the backbone of the body of law [concerned] and the potent cement that binds together the various and often disparate cogs and wheels of the normative framework" (Cassese 2005).

Furthermore, the GCM adopts "cross-cutting and interconnected" principles (para. 13 of the GCM), which pivot around two "axes": "the first matching national sovereignty and good global governance and the second running along the *continuum* between humancentricity and the rule of law" (Vitiello 2022, p. 19, in this *Special Issue*). These axes—the centrality of which has been acknowledged in the 2022 IMRF Progress Declaration—cut across the migration-specific topics under the heading "Objectives" (as listed in para. 16 of the GCM) and the restatement of well-established principles of international law (such as the best interests of the child and the principle of non-refoulement, which are key to the GCR as well). Yet, the potential implications which this "cross-cutting and interconnected" approach might have on judicial review at the implementation level remain unchartered.

One of the explanations is linked to the rawness of the relation established among the axes. The principles guiding the implementation of the 23 objectives and the actions subordinated to these are not "logically differentiated" (Elias and Lim 1997), in the sense that states failed to reach a political consensus on a relative ranking among these, for example, by attributing pre-eminence to the rule of law (Panizzon 2022). During the IMRF 2022, Ecuador—speaking on behalf of 28 "champion countries"14—responded to the

<sup>13</sup> See Art. 38(1)(c) of the Statute of the International Court of Justice.

<sup>14</sup> GCM Champion countries are: Azerbaijan, Bangladesh, Cambodia, Canada, Chad, Colombia, Costa Rica, Ecuador, Egypt, El Salvador, Ethiopia, Ghana, Guinea-Bissau, Honduras, Indonesia, Iraq, Kenya, Luxembourg, Malawi, Mali, Mexico, Morocco, Nepal, Niger, Nigeria, Philippines, Portugal, Senegal, and Thailand.

UN Secretary General's biennial report<sup>15</sup> by positioning the GCM in the line of UN-led international cooperation tools:

"[w]hen migration is safe, orderly, and regular, it represents a sustainable development opportunity. We have the 'what' in the 2030 Agenda. We have the 'how' in the GCM. And we must make sure that the IMRF constitutes the 'where' for the benefit of migrants and their communities of origin, transit, and destination".16

This plea underscores the urgency to come up with stronger language with which to identify priorities and give meaning to migration-related goals within the remit of both indicator 10.7.2 of the UN 2030 Agenda for Sustainable Development<sup>17</sup> and the GCM's 23 objectives. Nevertheless, the close-to-absent numerical targets in the GCM deflate any appearance of precision from the GCM's plain meaning. Clarity of formulation is—unlike in the GCM—more present in the 2030 Agenda, and thus in SDG 10.7 on migration (Denaro and Giuffré 2022; Desmond 2020). In addition, the choice of formulation in "making migration work for all", a term chosen by the UN Secretary General during the drafting of the GCM,18 is less advanced in terms of equity and justice than "to leave no one behind" of the Agenda 2030. For that reason, the champion countries for the IMRF 2022 were adamant to call for a tighter amalgam between the GCM and SDG 10.7, under the assumption that a closer convergence between the two UN-led cooperation frameworks could secure the "dignified" and "responsible" migration policies that were missing out from the GCM final text. The different ambiguities featured in the Global Compacts' principled, yet permeable, approach to migration and refugee issues is explored in this *Special Issue*, inter alia, by using the EU legal order as a comparator and a testbed for implementation.

#### *1.3. Moving from Guiding Principles to Implementation: Anything but a "Soft Landing"?*

Legal scholars have commonly attributed a "gap-filling" mission to the soft law embodied in the Global Compacts (Peters 2018; Allinson and Croce 2021; Petrig 2021). Their observations depart from the hypothesis that the soft law in the GCM deploys a legal effect which, while not identical to the bindings of hard law (Hilpold 2020), nonetheless offers a "prescriptiveness" that elevates soft law to a normative quality beyond producing factual or political effects (Peters 2011). This idea has been shared by international relations scholars, who link the gap-filling idea attributed to the soft law in the GCM with its ambition to incentivize non-state actors to contribute to law and policymaking—an effort which could not be achieved through recourse to formal lawmaking (Appleby 2020; Höflinger 2020; van Riemsdijk et al. 2020).

Indeed, non-legally binding instruments enable states to rapidly clarify their positions and expectations on heated topics while avoiding the time-consuming process of concluding a treaty and undergoing domestic ratification (Bufalini 2019), two aspects which may make a difference in those fields of international cooperation that are most affected by national sovereignty constraints. In addition, there is another structural feature of soft law which should be weighed against its possible disadvantages. Soft law may perform—in the "penumbra of law" (Peters 2011)—important social functions, including the "whole-ofgovernment" approach, and thus pave the way for inclusive multistakeholder involvement during negotiations and in the monitoring as well as reviewing of national implementation projects. Yet, the "corrective" potential of soft law by gap-filling or re-interpretation through e.g., nonstate actors reaches a limit, once the principles of non-retrogression, due process and rule of law deploy their full meaning. Just as "open-ended" negotiating outcomes have

<sup>15</sup> UN, "Global Compact on Safe, Orderly and Regular Migration", Report by the UN-Secretary General, UN Doc. A/76/647, 21 December 2021, available online https://migrationnetwork.un.org/resources/secretarygeneral-report (accessed on 13 December 2022).

<sup>16</sup> Statement of the GCM Champion countries at the Briefing on the Report of the Secretary-General on the implementation of the GCM, 16 February 2022: https://migrationnetwork.un.org/sites/g/files/tmzbdl416 /files/docs/ecuador\_on\_behalf\_of\_the\_champion\_countries.pdf (accessed on 9 December 2022).

<sup>17</sup> Transforming our world: the 2030 Agenda for Sustainable Development. Resolution adopted by the General Assembly on 25 September 2015, UNGA Res 70/1 (2015) UN Doc A/RES/70/1.

<sup>18</sup> UN, "Making Migration Work for All", Report of the Secretary-General, UN Doc. A/72/643, 12 December 2017, available online https://refugeesmigrants.un.org/SGReport (accessed on 13 December 2022).

added complexity, the "degrees of normativity" (Peters 2011) seems in full display in the GCM, rendering its endorsement and implementation challenging for those states, which see their democratic ratification process (Petrig 2021) challenged by soft law's relative normativity (Weil 1983).

Concomitantly, a format such as a spectrum of "nascent obligations" (Elias and Lim 1997, p. 7) lacks—by design—the hierarchical structure and procedural legitimacy associated with formal sources of international law. Within the GCM, this architectural void explains the lingering divide between the axis of "sovereignty" and "international cooperation", as well as "whole-of-society/governance". A solution might be to resort to the two good governance guideposts of the rule of law and due process informing the GCM, which are mirrored in the "axiology" sketched out, if vaguely, by these "guiding principles" Hilpold (2020). Yet, the guidance to be expected in the principles is only half-way developed: it is difficult to detect clear priorities attributed to social or normative values, apart from the inter-relations shaped around IML and IHRL or IML and international environmental law (Yildiz in this *Special Issue*). Yet, even these inter-relations are not unidirectional and fully articulated, which means that there are different kinds of normative inferences determined by one and the same objective.

These stances raise the issue of balancing the risks and gains of soft normativity as an elective means to reach the intended goal of "making migration work for all" (see, e.g., Gammeltoft-Hansen et al. 2017; Gavouneli 2019).<sup>19</sup> The prime element to assess is, therefore, the relation between the soft commitments in the Compacts and the corresponding hard law obligations under international law. In particular, for cooperation frameworks such as the Global Compacts, which ingest both customary human rights rules (see, e.g., the principle of non-refoulement and the prohibition of torture as well as other forms of illtreatment) and conventional IHRL, while incorporating general principles of law (such as the rule of law), the soft/hard law synchronicity appears to be key to delivering global outcomes in terms of enhancing good governance. Unlike in the fields of corporate social responsibility (Choudhury 2018) or climate change and environmental law (Pickering et al. 2019; Eckersley 2004)—where it has been suggested that a non-dichotomous concept of soft law could produce effective governance of sustainable development—if human mobility has to be taken seriously, as in the GCM, then decoupling soft law from its specular hard legal obligations may entail a serious risk of retrogression (e.g., Baxi 2016).

Can we derive from these premises that states' executive powers obtain a carte blanche to opt out of a commitment or to choose at their own discretion which type of normative inference to implement (Allinson and Croce 2021)? Relatedly, what could be the implications for democratic oversight and the role of domestic constituencies (Petrig 2021)? Additionally, what types of consequences can be foreseen—if any—for the progressive development of IML in the sense of art. 1(1) of the Statute of the UN International Law Commission (ILC) (Chétail 2019)? How does "compacting"—defined as the exercise of mapping practices and programs, in order to level out the playing field for stakeholders' inclusion in decisionmaking processes (van Riemsdijk and Panizzon 2022)—impact protection standards? Is the informal element implied in the "compacting" exercise—i.e., the establishment of soft partnerships and arrangements at the global and regional levels—capable of "firming up" obligations at the implementing level (see mutatis mutandis, Merry 2015)? Or is their legal effect altogether a different, alternative one (Hilpold 2020)?

Additionally, further zooming in, what has been (and could be) the contribution of a key regional actor—the European Union—to a systemic and contextual interpretation of the Global Compacts, inspired by art. 31(1) of the 1969 Vienna Convention on the Law of Treaties read in conjunction with art. 1(1) of the ILC Statute (Molnár 2020)? Could it stretch

<sup>19</sup> This ambition is embedded, for instance, in the "soft landing" that the 'EU MATCH' programme intends to deliver to Senegalese and Nigerian talents recruited for internships in Europe and upon their returns. For further info, see https://eea.iom.int/sites/g/files/tmzbdl666/files/documents/MATCH%20report%20-Looking%20 at%20Labour%20Mobility%20Initiatives%20from%20the%20Private%20Sector%20Perspectives%20.pdf (accessed on 9 December 2022).

the asymmetry between the two axes—of sovereignty and human centricity—around which soft commitments are built? Or could a formal incorporation of the Global Compacts within the EU legal order underscore the prominent role of fundamental rights and the rule of law characterizing the process of European integration?

#### **2. A Special Issue of** *Laws***, Offering Fresh Insights into the Classics**

Against the above backdrop, this *Special Issue* for 'Laws' puts under scrutiny the relations arising in the forcefield of the two Global Compacts between the rule of law and the governance of human mobility. In a collection of eight articles, this relationship is investigated from the classical standpoint of identifying the legal effects which such international soft law instruments might produce, but adding a dynamic investigation to the classics by adopting a multilayered approach to soft normativity. The latter draws on the prescriptive quality of soft law as a catalyst for generating some autonomous legal effects that move beyond factual or political impacts to evaluate the governance quality of the GCM and GCR for human mobility and its relationship to the rule of law.

By focusing on the transformative power of the interaction itself, much more than on the hegemonic or hierarchical relations between the sources that interact, such a relational approach to regime interaction raises several questions.

First, which are the gaps that the GCM failed to close, and what rights were whitewashed in the final text, or curtailed? Examples of "firewalling" access to essential services, a patchy access to justice in border procedures, and the questionable detention of vulnerable persons are just a few such erasures.

Second and inversely, what are the achievements of the GCM in terms of gap-filling, in the sense of raising awareness of the legal challenges facing migrants that, so far, no international cooperation framework had addressed and which guide, for example, the EU's external dimension of migration law?

Third, what is the role of due process and the rule of law in approximating the acquis of the GCM with the nine UN core human rights conventions while sketching an accessible and adequate judicial response for migrants?

Tackling these questions can contribute to a better understanding of how (national and regional) legal systems could "embed" the global soft law instruments normatively. In addition, it would advance knowledge on how the predominantly political nature of the commitments in the Global Compacts excludes or triggers legally binding effects out of the normative inferences that they produce.

The above questions have guided the authors of the pieces in this *Special Issue*, which are summarized hereunder. A first strand of articles employs the EU legal order as a "principled" comparator to test the "relative normativity" of the Compacts (Section 2.1), while a second line of investigation relates to EU migration, asylum, and border policies as a testbed for their implementation (Section 2.2). The cross-fertilization between regional (supranational) law and practice is then explored prospectively, considering the first IMRF, by a third tranche of contributions dealing with selected issues concerning the ownership and implementation of the Global Compacts (Section 2.3). Finally, the challenges, gaps, and inconsistencies in national migration and asylum laws, as well as how they can they be fixed, with reference to the Global Compacts is the thread accounting for the final contributions (Section 2.4).

#### *2.1. The Guiding Principles of the Global Compacts: Proxies for Legal Obligations or Transformative Agendas?*

Guiding principles serve to create a common narrative: the same holds true for those of the GCM. Guild et al. (2019) posit that the Global Compacts incorporate guiding principles (see the GCR) and crosscutting as well as interdependent legally binding obligations (see the GCM), at the forefront being the duty to respect, protect, and fulfil human rights. This article discusses how the GCM and GCR, despite being non-legally binding, can constitute an interpretative tool that prompts adherence to three legal principles: the rule of law and due process, non-retrogression from IHRL, and the principle of non-discrimination (Molnár 2020). Whereas Guild et al. (2022 in this *Special Issue*) argue that the EU asylum acquis—as interpreted by the Court of Justice of the EU (CJEU)—cannot disregard the principle of non-retrogression as enshrined in the Global Compacts when interpreting the EU Charter of Fundamental Rights, they lend some support to the idea of the "relative normativity" (Weil 1983) of the Compacts. In their view, non-retrogression counterweighs the traditional concept of state sovereignty in the production of normative inferences out of "non-consensual legal phenomena"—as described in the seminal analysis by Elias and Lim (1997).

Set against the background of the CJEU jurisprudence emerging in response to the "rule of law crisis" in some EU Member States, the contribution by Favi (2022 in this *Special Issue*) investigates the CJEU's case law through the lens of the Global Compacts. Her analysis of the CJEU concludes that the rule of law can enhance the protection of third-country nationals, at least within the EU, and that by the judiciary's activity the EU's compliance with some of the commitments laid down in the Global Compacts has increased, regardless of the position taken by some individual, recalcitrant EU Member States with respect to these universal instruments. In particular, several hallmark CJEU judgments handed down in preliminary ruling procedures are compared to EU infringement procedure cases as to their relative efficacy, seen from the perspective of upholding the rule of law and access to justice in certain EU Member States infamous for their border injustice.

#### *2.2. The Global Compacts and Their Impact on EU Asylum and Border Policies: Puzzling Realities*

In this *Special Issue*, a specific focus is devoted to the EU, considering the prominent role played by its cooperative models and highly integrated legal architecture in shaping concepts and governance mechanisms envisaged by the Global Compacts.

Cornelisse and Reneman (2022 in this *Special Issue*) analyze the (potential) role of the Global Compacts in the development of EU law concerning asylum seekers who arrive at the EU's external borders. Despite widespread violations of their fundamental rights at the EU's external borders, the new EU Pact on Migration and Asylum20 proposes integrated border procedures as important instruments with which to "deal with mixed flows" and make the Common European Asylum System (CEAS) under art. 78 of the TFEU work. The authors underscore the fact that the EU legislature has not substantiated the claim that border procedures will contribute to achieving the aims of the CEAS, such as the creation of a uniform, fair, and efficient asylum procedure, preventing abuses. Neither does the Pact provide a solution for pushbacks and the systematic use of immigration detention, nor does it guarantee the quality of the asylum procedure. The article thus concludes that these new legislative proposals ignore the standards of the Global Compacts, and asks the following question: What role can the Global Compacts still play in the ongoing negotiations over the legislative proposals present under the EU Pact?

A second article in this strand by Vitiello (in this *Special Issue*) takes the European policy as well as practice of border "securitisation" and the governance of large movements of refugees and migrants at the EU level as a case study with which to investigate the interplay between the quest for safe, orderly, and regular migration (objective 23 of the GCM) and states' commitments to managing borders in an integrated and coordinated manner (objective 11 of the GCM). The key conceptual framework around which the analysis revolves is the dyad of "comprehensiveness-fragmentation", which frames the entire structure of the GCM and inspires its implementing actions. With a view to contributing to the debate stimulated by the first IMRF, this article elucidates the conditions under which the ambivalent interaction between the legal aspiration to regularize migration and the reality of border controls may lead to the enhancement—or (vice versa) to a further dilution—of the legal entitlements of migrants and refugees.

<sup>20</sup> European Commission, New Pact on Migration and Asylum, COM (2020) 609 final, 23 September 2020. Available (along with the legislative proposals presented thereunder): https://ec.europa.eu/info/publications/ migration-and-asylum-package-new-pact-migration-and-asylum-documents-adopted-23-september-2020 \_en (accessed on 2 December 2022).

#### *2.3. Implementation and Review of the Global Compacts' Commitments: Selected Issues*

Prospectively, in light of the recently held first IMRF, a pressing challenge is to ensure the effective implementation and oversight of the undertaken obligations in the Global Compacts. Unlike for the UN Agenda 2030 for Sustainable Development, where the attainment of the 17 SDGs is timed by 2030 and tracked by numerical indicators and targets, both benchmarks are absent from the GCM. Two articles of this *Special Issue* deal with the issue of monitoring the implementation of the GCM's objectives, from different perspectives.

Yildiz (2022 in this *Special Issue*) stresses that the international community failed to converge on a mechanism for benchmarking, just as the GCM's monitoring and review mechanisms fail to build sufficient peer pressure to nudge states towards facilitating human mobility triggered by disasters and climate change. A review of relevant other international legal sources, including the UN Framework Convention for Climate Chance (and the UN Convention to Combat Desertification, as well as the work of different UN Special Rapporteurs and the Human Rights Council), permits the determination of which gaps in the GCR/GCM frameworks persist. The author points to several gaps, contributing to a better understanding of the limited translation into action of states' commitments related to human mobility induced by disasters and climate change.

Another illustrative case in point for a gap in the GCM concerns immigration-detentionrelated commitments, representing a controversial—and very intrusive—immigration law enforcement measure. As Majcher (2022 in this *Special Issue*) argues, states have committed to using administrative detention in immigration matters only as a measure of last resort and to work towards alternatives in light of objective 13 of the GCM, drawing from eight sets of actions to attain this commitment. She uses immigration detention as a case study to suggest that the synergies between the GCM's commitments and existing IHRL regimes can boost the mechanisms for monitoring states' implementation. For instance, given the similarities between the IMRF and the Universal Periodic Review<sup>21</sup> under the auspices of the UN Human Rights Council, the latter could inspire legal and policy innovations working to improve the GCM's review and oversight mechanisms. She concludes that, through such avenues, objective 13 of the GCM could be used to also strengthen, more generally, its guiding principles, specifically the rule of law in global migration governance.

#### *2.4. National and Comparative Perspectives of Implementing the Global Compacts*

One paradigmatic shift in international migration policy has been ascribed to the GCM's comprehensive, "360-degree vision and its impact on host countries' migrant welfare policies. When operationalized at the national level through the "whole-ofsociety/government approaches", the GCM—and this is a primer in international migration policy—commits host states to subject their entire integration and inclusion policies to scrutiny by the IMRF and the International Organization for Migration (IOM). Hence, from access to essential services, the recognition of foreign credentials, remittances transfers, to diaspora relations, every covert or overt policies thus becomes subject of reviewing by the IMRF and is in full international spotlight. Through this invasive inroad to sovereignty, also the external dimension of migration policies is inextricably tied up with domestic law and policy, and by this token (finally) can be adjudicated before courts. The final two articles hosted by this *Special Issue* inquire into these different domestic ramifications, including by investigating selected instances of "unconventional" implementation of the GCR at the national level.

The article by Vankova (2022 in this *Special Issue*) explores the quest for safe pathways from the perspective of the collective responsibility of the international community for offering durable solutions to refugees—as expressly recognized by the 2016 New York Declaration and the GCR—and as an opportunity for refugee access to labor opportunities as envisaged by the GCM. The analysis focuses on how these soft law commitments

<sup>21</sup> United Nations Human Rights Council, Universal Periodic Review. Available online: https://www.ohchr.org/ en/hr-bodies/upr/upr-main (accessed on 9 December 2022).

contained in the Global Compacts can be embedded into national legal systems by exploring the legal and political feasibility of establishing such complementary legal pathways in two selected EU Member States: Germany and Sweden. Drawing (inter alia) on semi-structured interviews with stakeholders at the national level in Germany and Sweden, this article contends that politicians' and policymakers' traditional thinking of migration and asylum as separate domains remains the key challenge to opening work-based complementary pathways for refugees. It concludes by emphasizing that the launch of the Global Task Force and the interest in complementary pathways shown by international organizations strengthen the political feasibility of work-based complementary pathways, not least because public awareness increases jointly with more expertise becoming available.

Alexander and Singh (2022 in this *Special Issue*) analyze the impact of the GCR on Indian statutory and judicial practice over access to asylum for Afghan refugees. They caution against over-rating the benefits of the Global Compacts and of elevating the virtues of soft law therein. In the case of India, non-refoulement and access to asylum as well as to essential services for migrants and refugees only exist by virtue of India's High Courts. Without court-adjudicated acquis, migrants' and refugees' access to justice would be even more fragmented, if not factitious, underlying once more the key value of due process and the rule of law as guiding principles of the GCM. Similarly, the intake of the GCR by the Indian government has exacerbated an upfront confrontation of what happens when no domestic legislation is in place to absorb the objectives and political commitments assumed at the international level.

#### **3. Charting the Way Ahead for the Global Compacts: What Role for the Rule of Law in Global Migration Governance?**

The Global Compacts for Migration and on Refugees promise more than a compilation (and, according to Chétail 2020, a consolidation) of the existing international legal standards governing migration and refugees, even if the levels of ambition, as the IMRF 2022 revealed, differ from one group of states to others. Whereas some insist on keeping up with the soft law quality of the GCM, including Australia, stating that "the activities listed under ... the Compact are merely illustrative of possible State practice",<sup>22</sup> others, notably in the Global South,<sup>23</sup> expect a higher level of ambition from the UN community, demanding to see more decisiveness over the direction that the commitments are taking, including a possible agreement over the stewardship of the IOM, but also expanding on certain previously undetected or underestimated thematic areas, including gender-based violence, bilateral labor mobility agreements, one-stop shops, harmonizing criteria for skills testing and recognition, and other integration measures. A third group of countries, including Egypt, Spain, and another 18 UN Member States,24 as well as Ecuador as the champion for the 29 champion countries of the IMRF 2022, define progress as reaching coherence with other international norms, including, as discussed in this *Special Issue*, the UN Framework Convention for Climate Chance, the UN Agenda 2030, and the International Convention on Migrant Workers, over issues of validating climate-induced displacement, but also reaching

<sup>22</sup> Statement by H.E. Dr Fiona Webster, Chargé d'affaires Australian Mission to the United Nations United Nations Briefing on the Global Compact for Migration: Report of the Secretary General 16 February 2022. Available online: https://migrationnetwork.un.org/sites/g/files/tmzbdl416/files/docs/australia.pdf (accessed on 9 December 2022).

<sup>23</sup> See Remarks from the Launch of the UN Secretary General's Report, 16 February 2022. Available online: https://migrationnetwork.un.org/sg-report-2022 (accessed on 9 Deceember 2022).

<sup>24</sup> Statement of the GCM Champion countries at the Briefing on the Report of the Secretary-General on the implementation of the Global Compact for Safe, Orderly and Regular Migration, 16 February 2022. Available online: https://migrationnetwork.un.org/sites/g/files/tmzbdl416/files/docs/ecuador\_on\_behalf\_of\_the\_ champion\_countries.pdf (accessed on 9 December 2022): "When migration is safe, orderly, and regular, it represents a sustainable development opportunity. We have the 'what' in the 2030 Agenda. We have the 'how' in the GCM".

consensus over fair and ethical migrant labor recruitment, including for persons in need of protection, and drafting standards over sustainable returns.25

When the UN Secretary General in his Second Report on the GCM (21 December 2021) described the "[GCM]'s value as a guide and touchstone", the ambition had lowered from the original GCM acting as a tramplin for reaching a "multilateral" treaties, which the 2017 Sutherland Report ("making migration work for all") had suggested for a future GCM.

The 2022 IMRF Progress Declaration—which monitors the implementation of the GCM's first four years—has shed more light on where the under-developed concepts of the rule of law and due process might lie, hindering the overall improvement of the situation and well-being of migrants, "regardless of their status and the phase during the migration cycle". Notwithstanding, states have been given credit for "making migration work for all" as per the 2017 report of the UN Secretary General, even if much of their voluntary reporting dwells deliberately on contingent motivations, including on pandemic preparedness and relief, often to distract from more contentious and highly debatable policies and practices. Hence, the recently adopted 2022 IMRF Progress Declaration demonstrated which political commitments states are most willing to cooperate on, while shedding more light on where gaps persist. Ideally, the IMRF nudges states towards agreeing on prioritizing certain commitments and values, which would dynamically move the GCM beyond its current of "re-affirming" national and regional best practices, as critics observed during the IMRF.<sup>26</sup> If states were to rearrange certain commitments along a scale of "relative normativity" (Weil 1983), including by elevating human rights to a status further challenging state sovereignty (Crépeau and Atak 2016), such progress would mark a first step towards "firming up" (Merry 2015) the legal fabric of the Global Compacts. At the same time, several UN Member States took first steps to soften the narrative of "safe, orderly and regular" by calling for more "humane" and "coherent" migration policy (Morocco)27, or to "include actionable and measurable recommendations" in view of addressing the GCM's "critical challenges".28

This *Special Issue* undertook a legal analysis into this juncture between the legal-like and political formats, recast and enhanced by the two Global Compacts. Drawing on the negotiating history and outcome documents from the first International Migration Review Forum (IMRF), we reason that, in many ways, the line-up and mapping of practices, in addition to the recasting of legal obligations as "guiding principles", pay tribute to the different speeds and capacities of states as well as other actors for implementing the Global Compacts. In a best-case scenario, this reframing of existing obligations achieves a fuller commitment to non-refoulement, the prohibition of collective expulsion or the right to return, and enhances existing best practices, including "firewalls"; in other cases de-legalization dilutes the protection of the human rights of migrants. Finally, the key risks involved in softening the human rights standards are linked to the absence of the ranking of priorities, both for the global and other levels. Remedial actions to mitigate these risks are also identified: first, to rely on the bridging function of the guiding principles enshrined in the Global Compacts to concretize rights and obligations; second, to interlock the Compacts'

<sup>25</sup> Statement by Egypt at the occasion of the United Nations Briefing on the Global Compact for Migration: Report of the Secretary General, 16 February 2022. Available online: https://migrationnetwork.un.org/sites/ g/files/tmzbdl416/files/docs/egypt.pdf (accessed on 9 December 2022); and consider also the Statement by Spain. Available online: https://migrationnetwork.un.org/sites/g/files/tmzbdl416/files/docs/spain\_on\_ behalf\_of\_18\_countries.pdf (accessed on 9 December 2022).

<sup>26</sup> Champions letter to the President of the UN General Assembly, 31 January 2022: "We believe the Progress Declaration should go beyond a mere reaffirmation of the Compact, and we are willing to test the idea of including some concrete commitments in specific areas, in line with national priorities, to accelerate progress in attaining the GCM's objectives". Available online: https://migrationnetwork.un.org/sites/g/files/tmzbdl4 16/files/docs/champions\_letter\_to\_pga.pdf (accessed on 9 December 2022).

<sup>27</sup> Statement by Morocco at the occasion of the United Nations Briefing on the Global Compact for Migration: Report of the Secretary General, 16 February 2022. Available online: https://migrationnetwork.un.org/sites/ g/files/tmzbdl416/files/docs/morocco.pdf (accessed on 9 December 2022).

<sup>28</sup> Statement of the GCM Champion countries at the Briefing on the Report of the Secretary-General on the implementation of the Global Compact for Safe, Orderly and Regular Migration, 9 February 2022. Available online: https://migrationnetwork.un.org/sites/g/files/tmzbdl416/files/docs/ecuador\_on\_behalf\_of\_the\_ champion\_countries.pdf (accessed on 9 December 2022).

commitments more tightly with international legal obligations and the United Nations Agenda 2030 for Sustainable Development.

In sum, the Global Compact for Migration, read in conjunction with the Global Compact on Refugees, has the potential to transform the grip and the profile of international soft law and thereby to rearrange the cartography of IML. Yet, more research by scholars in addition to multiplied efforts by practitioners and civil society alike are necessary to bring about the kind of meaning-making from the Global Compacts, which might serve to unearth new priorities and foster a more effective dialogue among their goals for more efficient global migration governance.

In the Guest Editors' earnest hope, this *Special Issue* will help to generate further discussions—and also shared understanding—around the multiple issues outlined above. The Guest Editors wish you all happy reading!

**Funding:** This research received no external funding.

**Conflicts of Interest:** The authors declare no conflict of interest. As concerns Tamás Molnár, the views expressed in this article are solely those of the author and its content does not necessarily represent the views or position of the European Union Agency for Fundamental Rights.

#### **References**


van Riemsdijk, Micheline, and Marion Panizzon. 2022. A collective commitment to improving cooperation on migration': Analysis of a thematic consultation session for the Global Compact for Migration. *Third World Quarterly* 43: 2169–87. [CrossRef]

van Riemsdijk, Micheline, Marianne H. Marchand, and Volker M. Heins. 2020. New actors and contested architectures in global migration governance: Continuity and change. *Third World Quarterly* 42: 1–15. [CrossRef]

Vankova, Zvezda. 2022. Refugees as Migrant Workers after the Global Compacts? Can Labour Migration Serve as Alternative Pathway for People in Need of Protection into the EU? *Laws* 11: 88. [CrossRef]

Vitiello, Daniela. 2022. Comprehensive Approaches in the Global Compact for Migration and the EU Border Policies: A Critical Appraisal. *Laws* 11: 78. [CrossRef]

Weil, Paul. 1983. Towards Relative Normativity in International Law? *The American Journal of International Law* 77: 413–42. [CrossRef] Yildiz, Aylin. 2022. The Follow-Up and Review Mechanisms of the Global Compacts: What Room Is There for Human Mobility in the

Context of Disasters and Climate Change? *Laws* 11: 46. [CrossRef]

## *Article* **The UN Global Compacts and the Common European Asylum System: Coherence or Friction?**

**Elspeth Guild 1, Kathryn Allinson 2,\* and Nicolette Busuttil <sup>1</sup>**


**\*** Correspondence: kathryn.allinson@bristol.ac.uk

**Abstract:** This paper examines the "protective potential" of the Global Compacts on Refugees and Migrants vis à vis existing commitments to fundamental rights within the European Union (EU). The relationship between the two normative frameworks is scrutinised to establish the extent to which the two might be mutually supportive or contradictory, since this determines the Compacts' capacity to inform the interpretation of EU fundamental rights within the Common European Asylum System (CEAS). This paper explores this protective potential through three of the Compacts' key guiding principles: respect for human rights and the rule of law, the principle of non-regression, and the principle of non-discrimination. The Compacts' commitments to the first two are presented as sites of coherence where the Compacts concretely express pre-existing protections within EU law and provide a blueprint for implementation in the migration sphere. However, the Compacts' principle of non-discrimination reveals an area of friction with EU primary law. It is argued that the implementation of this principle can address the inherently discriminatory system underpinning EU law. Within the EU, rather than undermining international and national human rights obligations, the Compacts present an opportunity to refine the implementation of existing EU fundamental rights obligations applicable to migrants and refugees.

**Citation:** Guild, Elspeth, Kathryn Allinson, and Nicolette Busuttil. 2022. The UN Global Compacts and the Common European Asylum System: Coherence or Friction? *Laws* 11: 35. https://doi.org/10.3390/laws 11020035

Academic Editor: James C. Simeon

Received: 21 February 2022 Accepted: 30 March 2022 Published: 12 April 2022

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2022 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

**Keywords:** Global Compacts; non-regression; non-discrimination; rule of law; human rights; Common European Asylum System (CEAS)

#### **1. Introduction**

The Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) were adopted in December 2018 by the United Nations (UN) General Assembly.<sup>1</sup> This article proposes a reading of the two Compacts as instruments that operationalise and contextualise existing State obligations in the migration context. In so doing, it examines the Compacts' potential to effect improved rights protection for migrants and refugees within the European Union (EU), given the European Union's own legal framework that includes the Common European Asylum System (CEAS). This is not a question of conceiving the Compacts as a binding Treaty or not; there is agreement that the Compacts' commitments are not about creating new obligations (Guild and Weiland 2019; Chetail 2020; Gammeltoft-Hansen et al. 2017). Instead, our research focusses on the complementarity of the Compacts with pre-existing legal frameworks in refugee and human rights law, and their role in improving respect for the rights of refugees and migrants (Guild 2019; Guild et al. 2017, 2019). They can be used by the EU both as an internationally endorsed aid to the interpretation and implementation of existing international human rights and as a new tool in EU development law. The EU's submission to the first regional

<sup>1</sup> Global Compact on Refugees, UN Doc A/73/12 (Part II) (2 August 2018); Global Compact for Safe, Orderly and Regular Migration, UN Doc A/RES/73/195 (19 December 2018).

review of the GCM in the European region specifies that the European Union, through the work of the European External Action Service and the European Commission, "has been contributing to the implementation of the [GCM] objectives" including through "support for actions in and outside Europe to [ ... ] protect the human rights of all migrants with particular attention to children and the most vulnerable groups" (EEAS 2020). In exercising its functions in the field of development cooperation, the European Union is already bound to comply "with the commitments and take account of the objectives they have approved in the [UN] context".2

Indeed, the Compacts are founded upon the refugee protection regime and human rights law obligations.<sup>3</sup> The fact that the Compacts are embedded in these two international legal frameworks means that they have the potential to operationalise these pre-existing legally binding obligations at the national and regional levels, including through the migration and asylum law of the EU. Coming from this understanding of the Compacts, this article examines how these instruments align with what already exists in the EU to establish the potential for the Compacts to inform the interpretation of EU law and the implementation of policy and practice. Since its creation, the EU legal order has existed as an autonomous legal framework.4 However, this framework is nonetheless shaped by the European Union and its twenty-seven Member States' commitments to, and obligations under, international law, including refugee and human rights law. The expression of these obligations, as seen in the development of the asylum and migration *acquis*, means that ever since the European Union exercised its competence to enact legislation in the area, Member States' action towards migrants and refugees must conform with their EU law obligations. As such, an assessment of the EU legal order's receptiveness to the Global Compacts' commitments can illustrate the extent to which these instruments complement pre-existing legal sources and can result in improved rights protection for migrants and refugees, particularly by fleshing out the content of these obligations in a migration-specific context.

The Compacts have been negotiated and adopted under the UN's Sustainable Development Goals (SDGs)—Goal 10(7). As the Commission's Legal Service has explained, Article 210 Treaty on the Functioning of the European Union (TFEU) requires the European Union and the Member States to coordinate their actions on development policy (Commission Legal Service 2019).5 In the New European Consensus on Development,<sup>6</sup> the multiple aspects of migration and forced displacement are agreed as development policy with specific reference to the Global Compacts. As the Legal Service argues, there is extensive case law requiring the European Union to consider the objectives of development policy when implementing measures affecting developing countries. As a result, it concludes that the GCM has legal effects for European Union development policy.7 This means that, according to the Legal Service, the GCM is an integral part of European Union positions in development cooperation as the GCM participates in the European Union's legal framework. Our argument regarding the impact of the GCM on EU law goes in a slightly different direction, aligning it with that of EU migration and asylum law. As the Legal Service proposed regarding development policy, we claim that in respect of EU law in migration and asylum, EU law and policy must be compatible with the GCM objectives,

<sup>2</sup> *Consolidated version of the Treaty on the Functioning of the European Union* (TFEU), 13 December 2007, OJ 2008/C 115/01 Article 208(2). On the role of the EU in the Compacts' negotiation see, (Molnár 2020).

<sup>3</sup> See GCR (n1) para. 5; GCM (n1) para. 15. https://migrationnetwork.un.org/sites/g/files/tmzbdl416/files/d ocs/contribution\_by\_the\_eeas\_european\_commission\_services\_to\_the\_regional\_review\_of\_the\_global\_c ompact\_for\_safe\_orderly\_and\_regular\_migration\_in\_the\_unece\_region.pdf (accessed on 24 August 2021)

<sup>4</sup> Case 26/62 *NV Algemene Transport—en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration* ECLI:EU:C:1963:1.

<sup>5</sup> This document was leaked by an independent MEP to *La Voce del Patriota*, an Italian news outlet connected with the Fratelli d'Italia, a national conservative political party in Italy.

<sup>6</sup> Joint Statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission "*The New European Consensus on Development: Our World, Our Dignity, Our Future*" OJC 210, 30.6.2017, pp. 1–24.

<sup>7</sup> See Commission Legal Service, (n8), para. 46.

not only based on the principle of loyal cooperation (Article 4(3) Treaty on European Union (TEU)) as proposed by the Legal Service regarding development cooperation), but also as the most recent definitive clarification of the meaning of existing human rights conventions as they apply to migrants. Human rights standards are an inherent part of EU development policy which is an integral part of EU law. The impact of the GCM on one field of EU law is directly relevant to its legal effect in other areas, including migration and asylum.

EU competence was extended to migration and asylum in 1999, when a revision of the treaties took place. A specific commitment was written into the Treaty requiring compliance with the principle of *non-refoulement*, the Refugee Convention, and other relevant treaties (now contained in TFEU Article 78(1)).<sup>8</sup> The EU legislator implemented the competence regarding asylum in the Common European Asylum System (CEAS)—a set of secondary EU legislation adopted from 2003 onwards, revised in the early 2010s and currently under revision again.<sup>9</sup> This secondary legislation currently establishes minimum standards but with the objective of achieving common standards. In 2000, the EU adopted the EU Charter of Fundamental Rights (EUCFR), which was given full legal effect and equivalence to the EU Treaties in 2009 on the last revision of the treaties.<sup>10</sup> The Charter includes a right to asylum with due respect for the rules of the Refugee Convention (Article 18 EUCFR) and an explicit prohibition of refoulement (Article 19 EUCFR). Furthermore, regarding migration, the TEU states that the European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities (Article 2 TEU).<sup>11</sup> This is augmented by Article 6(3) TEU, which confirms that fundamental rights, as enshrined in the European Convention on Human Rights (ECHR), are general principles of EU law. It is reflected in the Charter where Article 1 commences with the entitlement to human dignity. The full impact of the Charter in the Area of Freedom, Security and Justice, of which the CEAS and migration form a part, has been well examined elsewhere (Sánchez and Pascual 2021). Thus, the application of the guiding principles of the Compacts—human rights including the rule of law, non-discrimination and non-regression—fit easily into the EU treaty framework The Compacts, as instruments adopted after the relevant treaty changes and endorsed by the EU and most EU Member States, need to be taken into account in the interpretation and implementation of the CEAS and EU migration law in order to ensure the coherence of EU fundamental rights law with its international counterpart.

This contribution examines three key elements of the Compacts: human rights and the rule of law, the principle of non-regression, and the principle of non-discrimination. These elements are presented among the "cross-cutting and interdependent guiding principles", which the international community has agreed should form the foundation of the Compact's aims and objectives.12 This article argues that in the EU's fundamental rights framework, the emphasis on the rule of law (Art. 2 TFEU) and the principle of non-regression13 are already embedded within the EU constitutional setup as obligations under EU law. As such, these points of coherence between the two frameworks result in a considerable protective potential for the Compacts within EU law. This coherence can ensure that these overarching principles are applied, in the context of migration, in line with international commitments.

At the same time, the prohibition of discrimination on the basis of migration status which is espoused in the Compacts, primarily the GCM, emerges as a site of friction between the Compacts and the EU legal order. Despite a commitment to non-discrimination on

<sup>8</sup> *TFEU* (n5).

<sup>9</sup> It consists of the Asylum Procedures Directive (2013/32/EU), the Reception Conditions Directive (2013/33/EU), the Qualification Directive (2011/95/EU), the Dublin Regulation (No. 603/2013), the EURO-DAC Regulation (No. 604/2013) and the Regulation establishing the European Asylum Support Office (No. 439/2010).

<sup>10</sup> *Charter of Fundamental Rights of the European Union (EUCFR)*, 26 October 2012, OJ 2012/C 326/02.

<sup>11</sup> *Consolidated version of the Treaty on European Union (TEU)*, 13 December 2007, OJ 2008/C 115/01.

<sup>12</sup> GCM, (n1) para. 15.

<sup>13</sup> Case C-896/19 *Repubblika v Il-Prim Ministru* ECLI:EU:C:2021:311 building on C-824/18 *A.B. and Others (Appointment of judges to the Supreme Court–Actions),* EU:C:2021:153, para. 108.

enumerated grounds in primary law, the EU migration and asylum *acquis* is constituted along a structural principle that permits and creates the differential treatment of thirdcountry nationals in their access to rights, based on their migration status. Although non-discrimination based on nationality in EU law is limited in scope to EU nationals (and their family members), the Compacts take a wider approach, calling for application regardless of migration status. As discussed below, this approach has been at least partially adopted by the European Court of Human Rights (ECtHR). Here, extant EU law stands out as fundamentally inconsistent with the Compacts' commitments. At the same time, despite this apparent irreconcilability, the Compacts' status as instruments that express the contemporary commitment to the rights of migrants and refugees can act to prompt a reconsideration of this stance. They call into question the continued legitimacy of the failure to apply the principle of non-discrimination on the basis of migratory status across the different categories of third-country nationals, in respect of which the EU legislator has exercised competence.

This paper proceeds as follows. Following these introductory remarks, Section 2 identifies the areas of coherence between the Global Compacts and the EU legal order and focuses on the role played by respect for human rights and the rule of law, together with the principle of non-regression, in shaping the EU legal order. In so doing, it examines how the expression of these principles within EU law facilitates the possibility that the Compacts' detail informs the interpretation and implementation of the relevant obligation at the EU level and enhances existing levels of protection. In contrast, Section 3 engages with the Compacts' presentation of non-discrimination on the basis of migration status as impermissible and how this runs counter to the understanding of the principle embedded in the structure of the EU legal order. It explores how the differential treatment of thirdcountry nationals (as aliens are called in EU law) appears inbuilt in the EU's structural framework, which limits the possibility of the Compacts imparting a protective effect. Nonetheless, it argues that the Compacts can provide a principled basis for re-evaluating the exclusion of third-country nationals from basic rights within the EU, in particular, through a wide interpretation of equal treatment provisions in secondary legislation. A concluding section integrates these strands of analysis.

#### **2. Coherence between the Global Compacts and the EU: Respect for Human Rights, the Rule of Law, and Non-Regression**

As noted above, the Compacts do not impose binding legal obligations on the EU but are well-placed to provide additional interpretative value to migration-specific contexts. This role is facilitated in areas where EU law and the Compacts overlap in their understanding of the key principles guiding their implementation (with specific impact on development policy). This section reflects how the Compacts' commitments to respect for human rights, the rule of law, and the principle of non-regression are already present within the EU legal order at the level of primary law, thereby providing fertile ground for the Compacts to enhance the meaning of obligations in the migration and asylum obligations expressed through the CEAS.

#### *2.1. Respect for Human Rights and the Rule of Law*

The two Global Compacts are both founded in the UN body of international human rights instruments, commencing with the Universal Declaration of Human Rights (UDHR), notwithstanding their incorporation into the Sustainable Development Goals 2030. The GCR commences with reference to the UN Charter and the commitment to cooperation among states in the context of their faithful implementation of the Refugee Convention (paras. 2 and 5). It also refers to regional instruments which complement the Refugee Convention, including through more general human rights duties (para. 5). The GCM is even clearer about its relationship with human rights. Its first paragraph confirms that it rests on the UDHR and references the full range of UN human rights conventions adopted to give the UDHR commitments convention status. It states that it is based on a set of

cross-cutting and interdependent guiding principles which include respect for human rights and rule of law (para. 15). As part of the GCM's commitment to human rights, it confirms that it upholds the principles of non-discrimination and non-regression (which will be dealt with later in this paper) and aims to ensure effective respect, protection, and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle (para. 15, indent 6).

As noted earlier, the EU is no stranger to human rights, with human and fundamental rights being central to the EU's legal structure.<sup>14</sup> The long history of the EU's gradual incorporation of human rights into its legal order has been well described elsewhere (Peers et al. 2021; Guild and Lesieur 1998). The EU's language of rights includes both human rights (the UN and Council of Europe's terminology) and fundamental rights (EU formulation), in part to accommodate more rights in the Charter than those which appear in many human rights conventions (De Búrca 2013, pp. 168–84). Its constituting treaties now include references to fundamental rights and an express reference to the Refugee Convention. More recently, the EU has signed UN human rights treaties, commencing with the Disability Convention.<sup>15</sup>

The protection of human rights is a key component of a system founded upon the rule of law. Rule of law features in the GCR (para. 9), where States undertake to uphold the UN Charter as well as rule of law at the national and international levels (thereafter, there are no further references to rule of law). In the GCM, rule of law and due process are part of the cross-cutting principles (para. 15, indent 4). It recognises that rule of law and due process as well as access to justice are fundamental to all aspects of migration governance. States commit to ensuring that not only their authorities, but all public and private entities and natural persons, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. This is quite a developed definition of the essential elements of rule of law for an instrument such as the GCM to contain.<sup>16</sup> It is perhaps a response to the widely existing problem of inadequate legal protection for migrants and limited or non-existent access to justice. For two Compacts which expressly state that they are non-legally binding (para. 4 GCR, para. 7 GCM), this is quite an ambitious legal framework within which the political commitment of the Compacts is defined.

As an organisation, the EU is a structure based on the rule of law. Unlike states which adopt constitutions to crystallise the relationship of the people and the state and confirm the existence of the state (Von Bogdandy 2008, p. 397), the EU was conjured into existence exclusively by treaties in the 1950s. The Treaty on European Union states in Article 2 that it is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. There has been substantial academic work on the meaning of rule of law in the EU, as well as interpretation by the Court of Justice of the European Union (CJEU) (Pech 2009; Konstadinides 2017; Bárd and Ballegooij 2018, pp. 353–65). Much like the Compacts' reference to the rule of law as requiring the public promulgation of laws, their equal enforcement and independent adjudication, the EU's institutional set up, legislative process, and judicial oversight illustrate a similar understanding of the principle. As the European Commission's assessment of the upholding of the rule of law in the EU and its Member States makes clear, despite the diverse legal systems and traditions, "the core meaning of the rule of law is the same across the EU" (European Commission 2021, p. 1). It includes respect for the key principles of "legality, legal certainty, prohibition of the arbitrary exercise of executive power, effective judicial protection by independent and

<sup>14</sup> *Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community*, 13 December 2007, OJ 2007/C 306/01.

<sup>15</sup> UN General Assembly, *Convention on the Rights of Persons with Disabilities*, 13 December 2006, A/RES/61/106, Annex I; Council Decision of 26 November 2009 Concerning the Conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L 23/35.

<sup>16</sup> See for discussion: (Bingham 2011).

impartial courts respecting fundamental rights in full, the separation of powers, permanent subjection of all public authorities to established laws and procedures, and equality before the law" (European Commission 2021, pp. 1, 7). In upholding the rule of law, Member States must comply with EU law and the principle of the primacy of EU law, upon which the European Union is founded.<sup>17</sup>

For the EU's asylum and migration framework, respect for human rights and the rule of law are indispensable. Just as the Compacts are embedded in pre-existing human rights obligations, the CEAS does not exist in abstraction; its implementation must be in line with the broader fundamental rights obligations that accrue within EU law. This includes the Charter, which largely mirrors the principles of the Compacts in that it obliges the CEAS to be in line with the Refugee Convention, embraces the commitment to the rule of law, and respect for human rights. There is also room for the role of non-regression, particularly with the more recent CJEU rulings and for promoting the principle of non-discrimination in the migration space.

#### *2.2. Non-Regression, the Compacts, the EU and the CEAS*

The GCM's rootedness in international human rights and refugee law obligations and the rule of law is supplemented by its explicit commitment to upholding the principles of non-regression and non-discrimination.18 The principle of non-regression, also referred to as non-retrogression within international human rights law,<sup>19</sup> acts to ensure that existing levels of protection are maintained once an instrument comes into force. As such, the GCM's basis in non-regression "resembles a standstill provision where the law at the time of the entry into force of the commitment must be maintained or changed only in the direction of the political commitment which has been undertaken".20 It follows that, in cases where States have pre-established higher levels of protection than that prescribed by an instrument, they cannot reduce those protections without expressly contradicting their commitment to non-regression. Moreover, once committed to non-regression, States should not undermine these higher levels of protection. Accordingly, States' commitment to uphold the principle of non-regression in the migration context operates as a prohibition on the adoption of retrogressive actions. States with higher standards in place than the relevant instrument, in this case the GCM, undertake not to lower extant standards of protection. This principle also applies to the EU, for instance, when revisiting the CEAS.

Prior to its inclusion in the GCM, the non-regression principle had already been recognised within international environmental law (Alegre 2018), and in the context of the protection of socio-economic rights, a place where it is expressed as the prohibition of retrogressive measures.<sup>21</sup> In environmental law, this may be viewed as "a negative obligation inherent in all positive obligations associated with fundamental rights" (Collins 2020). In the context of socio-economic rights, backwards steps are impermissible with respect to core obligations, which include, for example, the provision of primary and emergency healthcare.22 The possibility of States taking retrogressive steps with respect to other noncore obligations is contemplated only in specific circumstances which must be justified by the State Party.23

<sup>17</sup> See, for example, the Court of Justice's ruling in *Repubblika v Il-Prim Ministru* (n 18).

<sup>18</sup> GCM (n1) para. 15(f) specifies that the GCM 'is based on international human rights law and upholds the principles of non-regression and non-discrimination'.

<sup>19</sup> This is especially the case for economic, social and cultural rights: see UN Committee on Economic, Social and Cultural Rights, *General Comment No 13: The Right to Education*, 8 December 1999, para. 45.

<sup>20</sup> Guild and Wieland (n 2) p. 197.

<sup>21</sup> See UN Committee on Economic, Social and Cultural Rights (CESCR), *General Comment No.3: The Nature of States Parties Obligations*, Art. 2, Para. 1 of the Covenant, 14 December 1990, E/1991/23, on the prohibition of "any deliberately retrogressive measures" (para. 9). The idea that once a human right is recognised it cannot be restrained, destroyed or repealed is shared by all major international instruments on human rights.

<sup>22</sup> See CESCR '*General Comment No. 14: The Right to the Highest Attainable Standard of Health'* (2000) UN Doc E/C.12/2000/4 para. 48.

<sup>23</sup> CESCR, (n34), para. 32; CESCR (n32) para. 9.

The principle of non-regression is not novel to the EU law framework either. Within the EU framework, the CJEU has explored standstill provisions in relation to the EEC– Turkey Association Agreement (Gutmann 2016), where it has highlighted how they act to freeze existing restrictions (if any) in time and ban the introduction of new, more restrictive restrictions.24 Moreover, non-regression clauses have long been articulated within employment-law-related secondary EU law instruments, which specify that the directive in question must not be used to justify reducing "the general level of protection afforded to workers" within the instrument's scope.<sup>25</sup> Granted, the clauses in EU social legislation and the CJEU's restrictive interpretation thereof focused on establishing a limited rule that does not encompass a comprehensive "standstill" clause which rules out lowering standards in connection with the Directive's implementation.<sup>26</sup> This led Peers to brand them as "entirely, or very nearly entirely, ineffective" (Peers 2010, pp. 436, 439). However, the same cannot be said of the importance accorded to non-regression in the fundamental rights context at the level of EU primary law.

The EU's fundamental rights architecture can already be said to incorporate a principle of non-regression, by pegging the substantive scope of EU fundamental rights against those of the ECHR. Article 52(3) EUCFR provides that Charter rights corresponding to rights protected by the ECHR must have the same scope and meaning, as interpreted by the ECtHR, and provide for an equivalent level of protection.27 This standard is a minimum floor of protection that does not prevent EU law from "providing more extensive protection".<sup>28</sup> In addition, Article 53 EUCFR presents the Charter as a source of "better protection of fundamental rights within the scope of operation of the [EU] (... ) [which] does not seek to displace existing protection of fundamental rights"; at a minimum, these must meet ECHR standards and those international agreements to which the EU is a party (de Witte 2019, p. 74). This is accompanied by the qualification that nothing in the Charter must restrict or adversely affect existing levels of fundamental rights protection provided by EU law, international law, and international agreements upon its entry into force. The provision establishes a minimum level of protection that incorporates human rights obligations originally conceived outside of EU law. Although in *Melloni*, this was interpreted to mean that higher levels of *national* fundamental rights protection than those established by the Charter are only permissible provided they do not affect the primacy, unity and effectiveness of EU law, the same restriction may not be as easily imposed on ECHR rights which are explicitly linked to the determination of the level of Charter rights protection.29 In their opinion in *FMS*, Advocate General Pikamäe argues that the absence of the ECHR's formal incorporation in the EU legal order means that the consistency sought by Article 52(3) EUCFR "cannot adversely affect the autonomy of EU law and that of the [CJEU]" and the CJEU interprets Charter provisions "autonomously". However, they acknowledge that even if the CJEU were to side-line ECtHR caselaw, this remains subject to the caveat that "its interpretation leads to a higher level of protection than that guaranteed by the ECHR".30 To that end, it appears possible to speak of the EUCFR as providing an example of a principle of non-regression within EU primary law. Arguably, although not

<sup>24</sup> See for example, the EU–Turkey Association Article 41(1) of the Additional Protocol and Article 13 of Decision 1/80 of the EU–Turkey Association Council. Case law includes C-12/86 *Demirel* ECLI:EU:C:1987:400; C-182/91 *Sevince* ECLI:EU:C:1990:322; C-138/13 *Do ˘gan*, ECLI:EU:C:2014:2066; *C-225/12 Demir* ECLI:EU:C:2013:725 and C-561/14 *Genc* ECLI:EU:C:2016:247.

<sup>25</sup> Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (1999) OJ L 175/43 1999 70 clause 8(3).

<sup>26</sup> As in *AG Opinion in Mangold* para. 61; (Peers 2010, p. 438).

<sup>27</sup> Explanations Relating to the Charter of Fundamental Rights [2007] OJ C-303/17; Case C-617/10 *Åkerberg Fransson* ECLI:EU:C:2013:105 para. 20; Case C-400/10 PPU, *J McB v L E* [2010] ECR I-08965, para. 53.

<sup>28</sup> Case 400/10 PPU, *J McB v LE* EU:C:2010:582 para. 53.

<sup>29</sup> Case C-399/11 *Melloni ECLI:EU:C:2013:107*.

<sup>30</sup> See Advocate General's Opinion in Joined Cases C-924/19 PPU and C-925/19 PPU *FMS, FNZ* ECLI:EU:C:2020:294, paras. 148–149.

legally binding, Compact provisions on non-regression in the migration context can inform the interpretation of a non-regression obligation in the migration and asylum field.

This interpretation is enhanced by the CJEU's explicit presentation of the principle of non-regression as a principle of EU law applicable to the EU values in Article 2 TEU, albeit specifically in the rule of law context.31 The term "rule of law backsliding" has been used to refer to the weakening of democratic institutions by elected authorities and the systemic breaches of judicial independence and other violations that have plagued multiple Member States in recent years,<sup>32</sup> with additional criticism of the EU's own commitment towards the rule of law (Kochenov 2015). It is in this context that recent developments in the CJEU's jurisprudence indicate that the principle of non-regression is an important principle at the level of EU primary law. In *Repubblika v Il-Prim Ministru ta' Malta*, the CJEU was called upon to determine whether the Maltese system for judicial appointments was consistent with the principle of effective judicial independence.<sup>33</sup> Its ruling highlighted the existence of a principle of non-regression which is tied to the values enumerated in Article 2 TEU as EU foundational values; as such, an EU Member State which had freely and voluntarily acceded to the European Union "cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU".<sup>34</sup> In this scenario, the *value* of the rule of law meant Member States must "ensure that (... ) any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary".<sup>35</sup> As Leloup, Kochenov, and Dimitrovs have pointed out, the assertion of an explicit principle of non-regression "marks a bold new step in the Court's jurisprudence" (Leloup et al. 2021, pp. 700–1). However, it also builds upon earlier rulings in which it had emphasised the importance of adherence to EU values given Member States' free and voluntary commitment thereto in acceding to the European Union.<sup>36</sup>

The recognition of a non-regression principle that is tied to the European Union's values expressed in Article 2 TEU points towards the recognition of the same principle with respect to EU fundamental rights. This argument is foreshadowed by Kostakopoulos, who argues "for the formal recognition of the principle of non-regression in the EU legal order", which is derived inter alia from a cumulative reading of the EU's objectives (Article 3 TEU) and the Charter's references to the preservation and development of common values (including fundamental rights) and its non-regressive clauses (as seen above) (Kostakopoulou 2021, p. 99).37 In light of the CJEU's ruling in *Repubblika* with its emphasis on the non-regression of laws tied to the values in Article 2 TEU and of which fundamental rights form an explicit part, it would appear that it is justifiable to speak of an EU principle of non-regression with respect to fundamental rights and which forms a key principle of the EU legal order that goes beyond the need to ensure a consistent interpretation of EU law.

#### *2.3. Implications of the Importance of Human Rights, Rule of Law, and Non-Regression for the CEAS*

As can be seen from the case law of the CJEU, human rights arising from the Charter have been very important to the interpretation of the CEAS.<sup>38</sup> Member States' applications

<sup>31</sup> Case C-896/19 *Repubblika v Il-Prim Ministru* (n18).

<sup>32</sup> (Pech and Scheppele 2017). 19 *Cambridge Yearbook of European Legal Studies* 3; 'European Commission "Rule of Law Report 2021" COM(2021) 700'. available at: https://ec.europa.eu/info/sites/default/files/communicati on\_2021\_rule\_of\_law\_report\_en.pdf accessed 15 September 2021.

<sup>33</sup> *Repubblika* (n 18). For detailed commentary, see (Leloup et al. 2021; Pech and Kochenov 2021).

<sup>34</sup> *Repubblika* (n 18) para. 63.

<sup>35</sup> *Repubblika* (n 18) para. 63.

<sup>36</sup> *Repubblika* (n 18) at para. 61; see also C-621/18, *Wightman* ECLI:EU:C:2018:999.

<sup>37</sup> For earlier arguments see (Antpöhler et al. 2012, p. 489; von Bogdandy and Spieker 2019).

<sup>38</sup> *Ex multis*, Joined Cases C-411/10 and C-493/10 *NS and ME* [2011] ECR I-13905; Case C-31/09, *Nawras Bolbol v Hungary* ECLI:EU:C:2010:351; Joined Cases C-175/08 C-176/08 C-178/08 and C-179/08 *Aydin Salahadin*

of the CEAS measures have been found flawed on fundamental rights grounds on numerous occasions. For instance, regarding reception conditions in *Saciri*, the CJEU held that Article 1 of the Charter, under which human dignity must be respected and protected, precludes the asylum seeker from being deprived, even for a temporary period of time, of the protection of the minimum reception standards.39 A human-rights-compliant interpretation of the CEAS has required considerable modification of Member State practice regarding the treatment of asylum seekers in particular.40 Regarding rule of law, it was the CJEU which found Hungarian border procedures which resulted in the detention of persons on the basis of their inability to meet their own needs and the absence of an entitlement to effective judicial protection against arbitrary detention unlawful.41 The need for effective judicial protection in respect of detention is a foundation of the rule of law.

Challenges to the rule of law further arise through the non-implementation of existing legislation, which can give rise to serious breaches of fundamental rights. After all, as Tsourdi argues, the implementation gap of existing EU law obligations towards migrants and refugees and the systemic violation of rights within the EU point towards "asylum (... ) [as] one of the many faces of "rule of law backsliding" (Tsourdi 2021, pp. 497–97). Here, the acceptance of a principle of non-regression can be key to the CEAS, both in the implementation of existing obligations and in the development of the system. The recognition of non-regression as an obligation governing the CEAS would subordinate the development and implementation of new laws and policies at both EU and Member State level to heightened scrutiny on compliance with pre-existing levels of protection. The principle of non-regression in the GCM can strengthen the existing principle of nonregression of fundamental rights obligations within EU primary law through its explicit link and application to the migration and asylum *acquis*. Accordingly, a GCM-informed reading of the non-regression obligation in the case of fundamental rights law and policy towards migrants and refugees recognises an obligation to refrain from lowering existing standards of protection. This applies through the role of non-regression as an EU foundational value protected through Article 2 TEU and Charter provisions which, in turn, governs the application of the CEAS, as subordinated to the entire corpus of EU fundamental rights obligations.

Recognising this duty as applying to the EU institutions and the EU Member States would be particularly relevant at this moment in time, when the ongoing negotiations on the proposed Pact on Migration and Asylum have generated significant commentary on the extent to which the proposals risk lowering EU law protection standards for migrants and refugees.<sup>42</sup> A commitment to non-regression entails assessing new legislation and policy against existing human rights obligations. This would further illustrate the capacity of the Compacts to augment, rather than undermine, the protection of the rights of migrants and refugees in the European sphere, and lay to rest concerns that they can be exploited by States to roll back on existing protections.

This framework of human rights and rule of law in the EU should provide a strong foundation for the two Compacts to be given legal effect within EU law. However, three EU Member States voted against the GCM at its adoption in the UN General Assembly in December 2018 (Gatti 2018), although no such defection was demonstrated at the adoption of the GCR in the same month (Boucher and Gördemann 2021, pp. 227–49). However, when the European Commission issued its New Pact for Migration and Asylum

*Abdulla and others* [2010] ECR I-1493; Case C-396/17 *Shajin Ahmed* ECLI:EU:C:2018:713; Joined Cases C-443/14 and C-444/14 *Alo & Osso* ECLI:EU:C:2016:127; Case C-364/11 *El Kott* ECLI:EU:C:2012:826; Case C-573/14 *Lounani* EU:C:2017:71.

<sup>39</sup> ECLI:EU:C:2014:103.

<sup>40</sup> Case C-199/12 *X, Y & Z* ECLI:EU:C:2013:720; Case C-562/13 *Abdida* ECLI:EU:C:2014:2453 ; Case C-148/13 *A, B&C* ECLI:EU:C:2014:2406 ; Case C-69/10 *Diouf* ECLI:EU:C:2011:524 ; Case C-239/14 *Tall*, EU:C:2015:824 ; Case C-181/16 *Gnandi* ECLI:EU:C:2018:465, to name only a few.

<sup>41</sup> Case C-924/19 *PPU* and Case C-925/19 *PPU*, *FMS* ECLI:EU:C:2020:367.

<sup>42</sup> See for example, (ECRE 2020; Thym 2021; UNHCR 2020, 2021).

in September 2020,<sup>43</sup> two years later, not a single reference was made to either Compact. Nor is any mention made to them in the numerous documents which accompany the Pact.44 Why this silence? The Commission itself had sought an exclusive negotiating mandate from the Council regarding the Compacts, of which the efforts were unsuccessful (Guild and Weatherhead 2018). Nonetheless, it was very active in the negotiations and strongly supported the conclusion (Diaz and Escarcena 2019, pp. 273–85). The Legal Service, as noted above, has advised that the GCM in an integral part of the EU positions in development cooperation because the GCM participates in the EU legal framework. However, when the Commission came to revising its migration and asylum law, it did not include any reference to the standards which it had been so keen to support only two years earlier.

#### **3. Friction: Non-Discrimination, the Compacts and the CEAS**

The principle of non-discrimination on the basis of migration status is an innovation within the Compacts that has the capacity to augment the protection of migrants seeking international protection and of refugees. It is identified as a key cross-cutting and interdependent guiding principle, and as will be discussed below, it is also expressed throughout the Compact in different objectives. However, this commitment represents a key area of friction with existing EU law and jurisprudence which, through relying on exceptions and restrictive interpretations of non-discrimination obligations, has permitted States to confirm their loyalty to non-discrimination whilst continuing to discriminate both against third-country nationals and amongst categories of third-country nationals.<sup>45</sup>

References to non-discrimination run throughout the Compacts, demonstrating its central position within them and wider human rights law. The GCR in paragraph 5 acknowledges its grounding in international human rights law.<sup>46</sup> Paragraph 9 calls on States to "promote, respect, protect and fulfil human rights and fundamental freedoms for all;" and to end exploitation and abuse, as well as discrimination of any kind on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or disability. This aligns with the International Covenant on Civil and Political Rights (ICCPR) which has been interpreted to include immigration and nationality status within "other status" (De Schutter 2016, p. 62).47 Paragraph 84 requires that programmes and projects should be designed in a way that combats "all forms of discrimination and promote peaceful coexistence between refugee and host communities". The GCR acknowledges the importance of non-discrimination for the durability and sustainability of protection in line with human rights law.

Non-discrimination is a guiding principle of the GCM, with paragraph 15(f) specifying that, in its implementation, States "ensure effective respect for and protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle".<sup>48</sup> Furthermore, objective 17 aims to eradicate all forms of discrimination against migrants. It is underpinned by international legal obligations relating to non-discrimination.49 It focuses on eliminating discriminatory practises however they may manifest themselves, and condemns expressions and acts of racism and xenophobia. It acknowledges that, for non-discrimination to be eliminated, state policies must also be constructed so as to avoid directly or indirectly discriminating against migrants. Thus,

<sup>43</sup> COM (2020) (n60) p. 609.

<sup>44</sup> See here for the Commission documents on the New Pact on Migration and Asylum. https: //ec.europa.eu/info/publications/migration-and-asylum-package-new-pact-migration-and-asylu m-documents-adopted-23-september-2020\_en (accessed 29 August 2021).

<sup>45</sup> See for further discussion, (Friðriksdóttir 2017).

<sup>46</sup> See GCR (n1) fn 5.

<sup>47</sup> See also *Ibrahima Gueye et al. v France*, Communication No. 196/1985, UN Doc CCPR/C/35/D/196/1985.

<sup>48</sup> See GCM para. 15(f): 'The Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination . . . '.

<sup>49</sup> Article 2 of ICCPR, Article 2 ICERD, Article 2 CEDAW and HRC General Comment No 15 (1986) on the Position of Aliens.

discrimination must be addressed at all levels through a "whole of society" approach. The Compacts' alignment with international human rights law commitments creates a framework that does not permit any exceptions or justifications for discrimination on grounds of nationality or immigration status. Once an individual is within the territory of a State, they must generally have equivalent access to human rights as nationals.<sup>50</sup>

The Compacts commit to end discrimination,<sup>51</sup> and the GCM highlights the need to avoid discrimination on the ground of migratory status in particular.<sup>52</sup> However, nondiscrimination on grounds of nationality within the EU is a complex area. Article 18 TFEU prohibits discrimination on grounds of nationality, but that is limited to EU Member State nationality.<sup>53</sup> Article 19 TFEU provides a competence to combat discrimination on the basis of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, which has been exercised and applies to all within the scope of EU law.54 As already alluded to, the ICCPR55 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)56 outline fundamental rights available to "all" persons, regardless of their legal status. Thus, arguably, under international human rights law, there is no permissible distinction between nationals and non-nationals due to the general applicability of human rights through the principle of non-discrimination.57 However, the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD), which sets the international standards regarding the prohibition of discrimination, includes Article 1(2), which permits distinction between citizens and non-citizens so long as it pursues a legitimate aim and is proportionate.58 This tension within the human rights framework permeates the EU legal order and creates friction with the Compacts' commitment to non-discrimination.

<sup>50</sup> Limitations to human rights by reference to immigration status are tightly circumscribed under international law and are only acceptable in clearly defined circumstances. They primarily relate to those areas considered core to citizenship e.g., the right to vote and the right to hold public office.

<sup>51</sup> In para. 9 GCR (n1) all States are called on 'to end exploitation and abuse, as well as discrimination of any kind ... ' and para. 84 'programmes and projects will be designed in ways that combat all forms of discrimination and promote peaceful coexistence between refugee and host communities...'. The (n1) para. 15(f) and Objective 17 seeks to 'Eliminate all forms of discrimination'

<sup>52</sup> Para. 4 GCM: 'Refugees and migrants are entitled to the same universal human rights and fundamental freedoms', Para. 11 holds that there is 'an overarching obligation to respect, protect and fulfil the human rights of all migrants, regardless of their migration status' and in para. 12 states that 'It intends to reduce the risks and vulnerabilities migrants face at different stages of migration by respecting, protecting and fulfilling their human rights . . . '.

<sup>53</sup> Case C-22/08 *Vatsouras* ECLI:EU:C:2009:344.

<sup>54</sup> See, for instance, Case C-83/14 *Chez* ECLI:EU:C:2015:480 for a particularly bold interpretation of the secondary legislation adopted under this competence.

<sup>55</sup> Article 26 of the ICCPR 'prohibits discrimination in law or in fact in any field regulated and protected by public authorities'. The prohibited grounds of discrimination extend to any 'other status', including thus refugee status or nationality. See HRC, 'General Comment No 18: Non-Discrimination', UN doc HRI/GEN/1/Rev.6 (12 May 2003) 148–9, para. 12. See also (Chetail 2021, p. 214).

<sup>56</sup> In the ICESCR, the notion of progressive realization implies that any retrogressive measures, such as those targeting asylum seekers or refugees, are incompatible with the Covenant. The principle of non-discrimination under article 2(2) of the ICESCR is 'an immediate and cross-cutting obligation'. Hence, '[t]he Covenant rights apply to everyone including non-nationals, such as refugees, asylum seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation'. Committee on Economic, Social and Cultural Rights (CESCR), '*General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights,*' UN doc E/C.12/GC/20 (2 July 2009) paras. 7 and 30; see also Chetail (n77).

<sup>57</sup> See HRC, General Comment 15 on the position of aliens, paras. 2, 5 and 6; (Chetail 2021, p. 26); however, the ILC's draft articles on the expulsion of aliens highlight in the commentary to Art 14(5) that: 'The reference in the draft article to "any other ground impermissible under international law" makes it possible to capture any legal development concerning prohibited grounds for discrimination that might have occurred since the adoption of the Covenant. On the other hand, it also preserves the possible exceptions to the obligation not to discriminate based on national origin. In particular, it preserves the possibility for States to establish among themselves special legal regimes based on the principle of freedom of movement for their citizens such as the regime of the European Union.'

<sup>58</sup> CERD, General Comments 30 (2004) para. 4; see *Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. U.A.E.),* Preliminary Objections, Judgment (4 February 2021) wherein discrimination on the basis of nationality is deemed admissible (see paras. 109–13).

Although some case law of the CJEU demonstrates the Court is willing to extend specific workers' rights to third-country nationals,<sup>59</sup> and Peers argues that discrimination between third-country nationals on the basis of nationality is also covered by the interaction of Articles 18 and 19 of the TFEU,<sup>60</sup> the fundamental framework of EU primary law is constructed to permit differential treatment of third-country nationals. Friðriksdóttir argues that the "sectoral approach" of the common immigration policy entrenches this discrimination at the secondary law level, despite claims it is intended to promote fair treatment Friðriksdóttir (2017), n 67, pp. 4–5. This approach ensures that differential treatment is permitted through differentiating migratory status (Friðriksdóttir (2017), n 67, p. 328; Cholewinski 2014, p. 25).

Criticisms of the discrimination permitted within EU primary and secondary law are often rebutted through reference to the ECHR non-discrimination protections which are considered general principles of law binding on the European Union and Member States.61 Although not expressly stated in Article 14 ECHR, discrimination on the basis of nationality has been found to be unlawful by the ECtHR. Examples from this case law include the case of *Gaygusuz v. Austria*, where a nationality limitation on access to some social rights in Austria was found to be prohibited discrimination on the basis of nationality.<sup>62</sup> However, this has only been applied in limited circumstances.63 This limited application of the prohibition of non-discrimination on grounds of nationality has reinforced a certain reluctance of some EU Member States to grant equal treatment to third-country nationals with their own nationals. However, the Compacts also call discrimination based on migration status between third-country nationals into question. Non-discrimination on the grounds of migration status not only in terms of integration, but also relating to access to a territory or to a labour market, is an innovation of the GCM that runs contrary to the practice of EU Member States and the jurisprudence of regional courts.64 The EU framework is utilised to enable EU Member States to commit to the right to non-discrimination, whilst utilising restrictive interpretations to continue to treat third-country nationals differently. This is so in three ways.

First, the ECtHR has outlined that "Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention".65 As such, indirect differential practice is permitted so long as it has a legitimate aim and is deemed proportionate. This is not unusual for non-absolute human rights protections. However, the expansive understanding of a legitimate aim in regard to national security, the welfare of the State, and in the national interest means that discriminatory practice against third-country nationals is often permitted, despite claims by the Court that justifications must be "very weighty".66

<sup>59</sup> C-311/13 *Tumer* ECLI:EU:C:2014:2337.

<sup>60</sup> See C-311/13 *Tumer* ECLI:EU:C:2014:2337; see also (Guild and Peers 2006, p. 111).

<sup>61</sup> See Case C-336/05, *Ameur Echouikh* (2006) para. 65; Case 36/75, *Rutili* (1975) ECR 1219; Case C-55/00, *Gottardo* (2002) para. 34.

<sup>62</sup> *Gaygusuz v Austria* (1996) 23 EHRR 364; see also *Koua Poirrex v France* (2003) 40 EHRR 2.

<sup>63</sup> Article 14 ECHR outlines the prohibition of discrimination for 'sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status..' however, Article 5(1)(f) permits 'the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition ... '; Article (1) of Protocol 7 outlines the procedural safeguards relating to expulsion of aliens and Article 16 ECHR permits EUMSs placing restrictions on political activity of aliens.

<sup>64</sup> See See for example, (ECRE 2020; Thym 2021; UNHCR 2020, 2021); see *MA v Denmark* (2021) Application no. 6697/18 para. 177

<sup>65</sup> See *Zarb Adami v Malta* hudoc 2006-VIII; 44 EHRR 49 para. 73

<sup>66</sup> See, for example, ECrtHR, *Ponomaryoni v Bulgaria* (Appl No. 5335/05) para. 54; ECrtHR, *Bah v the UK* (Appl No 56328/07); ECrtHR *Moustaquim v Belgium* (1991); *Piermont v France* (1995) ECrtHR, *Biao v Denmark* (appl No. 38590/10) Judgment of 24 May 2016, para. 113.

Second, Article 14 requires that discrimination occurs within the ambit of another provision of the Convention.67 Thus, it contains no substantive right such that it will only apply in conjunction with another right. Although the other right need not be breached, the applicant need only prove that the practise was discriminatory, which seriously limits its effectiveness (Ellis and Watson, *EU Anti-Discrimination Law* (2012) p. 13). In practise, the Court either fails to discuss the discrimination at all, instead focussing on the breach of the "primary right",<sup>68</sup> or the state argues that there is no primary right breach, and therefore, Article 14 is not applicable to the practice in question.69

Third, the ECtHR's interpretation of Article 14 sets out that discrimination occurs whenever there is "a difference in the treatment of persons in analogous, or relevantly similar, situations (... ) based on an identifiable characteristic".70 For discrimination to be established, the applicant must first prove that they are in an analogous situation to someone else to whom the discriminatory practise has not applied, and this difference in treatment was due to a prohibited ground.71 This principle has also been found to require that people in different positions should be treated differently.72 This has been stretched to untenable lengths by some EU Member States, who argue that, due to the difference in position of refugees, beneficiaries of international protection, asylum seekers or migrants, and EU Member States nationals, their situations are not identical or nearly so, such that discrimination cannot be established.<sup>73</sup> The ECtHR confirmed in the *MA* case that treating people with a different migratory status differently was not discrimination as their situations were not sufficiently similar. This returns to the sectoral approach within EU secondary law concerning immigration status and access to rights See Friðriksdóttir (2017), n 67, pp. 328–40. Through classifying access to rights for different migrant groups and status, the EU creates a system where differential treatment is justified because these groups are not analogous; thus, Article 14 is not applicable Friðriksdóttir (2017), n 67, p. 9. Despite obligations of non-discrimination in human rights and EU primary law throughout their legal frameworks, these protections are caveated on differentiation of nationality and migration status potentially permitting even direct discrimination on the basis of nationality.

The rather bleak picture, however, is tempered by the CJEU's interpretation of some EU secondary migration law, for instance, the Single Permit Directive,<sup>74</sup> where the Court maintained that discrimination against a migrant worker on the basis of the precariousness of her work and residence permit was contrary to the Article 12 right to equal treatment.<sup>75</sup> This interpretation of an equal treatment provision has been extended to two other secondary law instruments,<sup>76</sup> the long-term residents directive77 and blue card directive.<sup>78</sup>

<sup>67</sup> *Koua Poirrex v France*, (n86) para. 36.

<sup>68</sup> *Dudgeon v UK* ECHR 22 October 1981.

<sup>69</sup> This weakness is remedied in part by Protocol 12, which contains a general prohibition on discrimination. However, at the time of writing it has been ratified by 20 of the 47 Member States of the Council of Europe.

<sup>70</sup> *Zarb Adami v Malta* (n89) para. 71 (citing Willis v UK 2002-IV; 35 EHRR 547 para. 48).

<sup>71</sup> ECtHR, *Case Relating to Certain Aspects of the Laws on the use of Language in Education in Belgium v. Belgium* (Nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64), 23 July 1968, para. 284; see criticism of this approach in (McColgan 2006, p. 656).

<sup>72</sup> C-279/93 *Schumacker* (1995) para. 259; ECtHR *Thlimmenos v Greece* (Application no. 34369/97, 2001) para. 44.

<sup>73</sup> See, for example: ECtHR, *MA v Denmark* ((Application no. 6697/18) 9 July 2021, para. 177, where the court expressly refused to find that difference of treatment for family reunification for 1951 refugees and Art 3 beneficiaries of international protection constitutes discrimination; see Case C-579, *P&S* (2015), paras. 42–43.

<sup>74</sup> Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State *OJ L 343, 23.12.2011*, pp. 1–9.

<sup>75</sup> C-449/16 *Martinez Silva* ECLI:EU:C:2017:485.

<sup>76</sup> C-462/20 *ASGI* ECLI:EU:C:2021:894.

<sup>77</sup> Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents *OJ L 16, 23.1.2004*, pp. 44–53.

<sup>78</sup> Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment *OJ L 155, 18.6.2009*, pp. 17–29 (*as was*).

This line of cases is favourable for a positive EU interpretation of the prohibition on discrimination on the basis of migration status, but is currently limited to a number of instruments.

From the European perspective, the Compacts' commitment to end discrimination,<sup>79</sup> together with the GCM-expressed duty to avoid discrimination based on migration status, present an area of considerable friction with both EU law and EU Member State practice. Articles 18 and 19 TFEU are utilised to embed discrimination against third-country nationals, although the sectoral approach to migration status justifies further differential treatment amongst this group. Conversely, the Compacts provide clear guidelines on the equality of treatment which refugees and migrants should receive regardless of migration status.80 To translate this into rights protection, it is necessary to link the commitments in the Compacts to the relevant existing EU obligations and read them through the lens of the Compacts. The commitment to non-discrimination on grounds of nationality or migratory status in both Compacts requires greater alignment with the commitments to non-discrimination, as discussed under the ICCPR. In line with the case law on discrimination on grounds of nationality, interpretation of Article 14 ECHR81, Member States need to provide "very weighty" justification for treating people with different migration status differently.<sup>82</sup> In order for EU law to align with the commitments made in the GCM, the material scope of the prohibition on discrimination would need to eradicate all forms of discrimination against migrants with a tightly circumscribed exception for rights attached to citizenship, i.e., voting rights and holding public office. A Compact-compliant application of non-discrimination would ensure that migrants are entitled to the same human rights protections as everyone else.

#### **4. Conclusions**

An examination of the two Compacts' guiding principles with the EU's constitutional framework reveals much similarity between the two regimes. The rootedness of the Compacts in human rights obligations mirrors the EU's commitment to fundamental rights protection which is expressed at the primary law level, such as through the Charter, its constitutive Treaties, and its relationship with the ECHR. Similarly, the Compacts' commitment to the rule of law is reflected in EU primary and case law. Despite the issues with rule of law backsliding, the underlying legal framework and interpretation by the CJEU is holding EU Member States accountable to that legal order's commitment to the principle and is robust.

In key respects, the Compacts' guiding principles appear coherent with the EU legal order. The role played by fundamental rights, the rule of law, and the principle of nonregression within EU law enables the Compacts to play a role in the field of migration and asylum, since the latter are in harmony with key obligations within EU primary law. As instruments which articulate in considerable detail the actions States can take to respect, promote, and fulfil the rights of migrants and refugees, the interpretative detail contained therein can be used to flesh out obligations and move towards a more rights-compliant system. In the European context, the Global Compacts present an opportunity to refine the implementation of existing EU fundamental rights obligations as they apply towards migrants and refugees.

It is in the application of the non-discrimination principle that we see greater tension between the Compacts and the EU framework. The Compacts make clear that the human right to non-discrimination should apply irrespective of nationality or migration status, and that these are legitimate grounds for challenging differential treatment. Bringing this

<sup>79</sup> See (n72) and (n73).

<sup>80</sup> See GCR (n1) para. 5, 'The global compact is guided by relevant [IHRL] instruments,' and paragraph 9 commits all States to 'to promote, respect, protect and fulfil human rights and fundamental freedoms for all . . . '.

<sup>81</sup> Protocol 12 ECHR is also relevant here.

<sup>82</sup> All EUMS are parties to the ECHR. Not all EUMS have ratified Protocol 12. For full list see: https://www.coe. int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=177 (accessed 28 August 2021).

approach into EU law is far from straightforward, because non-discrimination on the basis of nationality is reserved for EU nationals, whereas for migrants, EU primary law calls for fair treatment, a term which is certainly not synonymous with non-discrimination.83 Only through EU secondary law, where equal treatment provision is expressly included, does there seem to be some progress towards non-discrimination on the basis of migration status. Even the interpretation of non-discrimination on the basis of nationality in the case law of the ECtHR has developed both slowly and very cautiously, starting with prohibitions on nationality exclusions from access to social benefits, it has more recently been applied to different family reunification rules depending on how the principals have acquired citizenship. This state of the law creates friction with the commitments found in the Compacts.

**Author Contributions:** Writing—original draft, K.A., E.G. and N.B.; Writing—review & editing, K.A., E.G. and N.B. All authors have read and agreed to the published version of the manuscript.

**Funding:** This article is part of PROTECT The Right to International Protection: A Pendulum between Globalization and Nativization? (www.protect-project.eu, accessed on 29 March 2022), a research and innovation project which is funded by the European Union's Horizon 2020 Framework Programme and coordinated by the University of Bergen (Grant Agreement No 870761).

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Not applicable.

**Conflicts of Interest:** The authors declare no conflict of interest.

#### **Legal Instruments**

*Charter of Fundamental Rights of the European Union (EUCFR)*, 26 October 2012, OJ 2012/C 326/02. *Consolidated version of the Treaty on European Union (TEU)*, 13 December 2007, OJ 2008/C 115/01.

*Consolidated version of the Treaty on the Functioning of the European Union* (TFEU), 13 December 2007, OJ 2008/C 115/01.


UN General Assembly, *Convention on the Rights of Persons with Disabilities*, 13 December 2006, A/RES/61/106.

*Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community*, 13 December 2007, OJ 2007/C 306/01.

UN Global Compact on Refugees, UN Doc A/73/12 (Part II) (2 August 2018).

UN Global Compact for Safe, Orderly and Regular Migration, UN Doc A/RES/73/195 (19 December 2018).

#### **International Reports and Statements**

European Commission. '2021 Rule of Law Report: The rule of law situation in the European Union' COM (2021) 700


<sup>83</sup> Article 67(2) TFEU.


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#### *Article*
