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

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.

The Global Compact on Refugees: inadequate substitute or useful complement?

“…While the Compact's text is problematic because it suggests that states have far fewer obligations to refugees than human rights instruments assert, this problem could be substantially mitigated if states, multilaterals, and other actors in the forced displacement response sector treated it as complementary to human rights instruments, in line with the understanding of the Compact advanced by some scholars (Guild et al, 2022). UNHCR in particular appears, on a surface-level examination, to be appropriately situated to lead other actors by example: As the multilateral body responsible for supervising and coordinating cooperative responses to forced displacement, the UN Refugee Agency acts as a convenor and interlocutor with states, and plays a central role in defining norms around forced displacement response.…”

Border Procedures in the European Union: How the Pact Ignored the Compacts

“…72 The GCR mentions that it 'represents the political will and ambition of the international community as a whole for strengthened cooperation and solidarity with refugees and affected host countries'. 73 If, in the spirit of the Compacts, the Council, the Commission and the Member States would take the interest of global solidarity and responsibility sharing seriously, the binding force of resulting EU law would bring the implementation of the Global Compacts a significant step further (Guild et al 2019(Guild et al , 2022 74 . The recent proposals of the European Parliament rapporteurs and UNHCR can assist them to do exactly that.…”

“…See also 'The UN Global Compacts and the Common European Asylum System: Coherence or Friction?' (Guild et al 2022).…”