Opening up a new chapter of law‐making in international law: The Global Compacts on Migration and for Refugees of 2018

Abstract

The endorsement/affirmation of the Global Compact on Migration and the Global Compact for Refugees in December 2018 has been accompanied by an intense discussion about the need to introduce new norms in these fields and about the actual legal force of the respective provisions. There was and there persists an open contrast between the openly declared non-bindingness of these Compacts and the widespread fear that they would either severely constrain national sovereignty in highly delicate areas or dilute arduously achieved standards (especially with regard to refugee law).Eventually, this whole discussion leads to the question about the meaning and the status of soft law in international law. With regard to the European Union, the transformative impact of the Global Compacts will depend on whether the EU further proceeds on its path of "emancipation" from international law while internally finding no consensus on the values here at issue.

A global view on the Global Compact for Migration – Introduction

“…In line with this assessment, preliminary research on the GCMs impact suggests that it has a considerable potential to effectively constrain state action in the future. 30 State-led review and the potential dominance of migration control over migrants' rights Nevertheless, there remain a number of open questions and considerable doubts as to the real "bite" that this process may have in practice. The impact of the GCM in particular on the rights of migrants is likely to be limited by the fact that the review process so far is almost exclusively dominated by states.…”

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

“…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.…”

“…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).…”

Protecting Asylum Seekers and Migrants in the Context of the Rule of Law Crisis in EU Member States: The Recent Approach of the Court of Justice of the EU through the Lens of the Global Compacts on Refugees and Migration

“…In the first place, these instruments expressly specify that they are non-legally binding instruments (McAdam 2019). Non-binding status does not mean that the Compacts are legally irrelevant (Hilpold 2021;Ferris and Donato 2019;Gammeltoft-Hansen et al 2017;Panizzon and Vitiello 2019;Peters 2018). However, while the Compacts appears to acknowledge the need for an international coordination to address the question of large movements of refugees and migrants, these documents do not create any new legal obligations for States, nor rights for individuals (Höflinger 2020).…”