The legal effects of a non-binding instrument: the Marrakech Compact, EU development funds, and policy on irregular migration
by Maja Grundler and Professor Elspeth Guild, Queen Mary University of London
While it contains references to binding international instruments, the Global Compact for Safe, Orderly and Regular Migration, also known as the Marrakech Compact (MC), ‘presents a non-legally binding, cooperative framework’ (MC para 7). The MC’s non-binding nature has raised questions about its effectiveness. In this context, commentary on the MC tends to emphasise that the Compact is politically binding, rather than legally, so that it is still a relevant instrument with the potential to achieve its aims, as long as implementation is not left solely up to states. The fact that the MC is non-binding, however, is not questioned.
Photo by Xingyue HUANG on Unsplash
Recently, however, our attention was drawn to a leaked 2019 document produced by the European Commission’s legal service, titled ‘The legal effects of the adoption of the Global Compact for Safe, Orderly and Regular Migration by the UN General Assembly.’
This document suggests that the MC has ‘legal effects’ on EU development policy.
The document was published in March 2019 on the website of La Voce del Patriota, the newspaper of the Italian right-wing party Fratelli d’Italia (Brothers of Italy). The website explains that it was leaked by Janice Atkinson, an independent MEP at the time, and former UKIP and UK Conservative party member. Due to its somewhat dubious origins, we did not become aware of the document earlier. While we distance ourselves from the content of the website, we believe the document merits discussion.
In this blog post, we consider the Commission legal service’s arguments regarding the legal effects of the MC. We argue that the legal service’s opinion has the potential to address the effects of the long-standing intrusion of policy on irregular migration into the realm of development policy and its damaging effects on the rights of (irregular) migrants.
Legal effect of the MC in EU law
The Commission legal service’s opinion argues that the adoption of the UNGA resolution endorsing the MC ‘created legal effects of the Global Compact within the EU legal order’ (para 7). The legal service’s argument rests on a number of provisions in the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). These include the principle of sincere cooperation (Art 4(3) TEU); the promotion of multilateral solutions to common problems, in particular in the framework of the United Nations (Art 21(1) TEU); the obligation to ‘comply with the commitments and take account of the objectives [the EU and its Member States] have approved in the context of the United Nations and other competent international organisations’ (Art 208(2) TFEU); and the obligation to coordinate EU and Member State policies on development cooperation (Art 210 TFEU).
Indeed, the legal service opinion relies mainly on EU law and policy on development cooperation in advancing its arguments on the MC’s legal effects in EU law. It refers to the New European Consensus on Development, which states that the EU and its Member States will ‘actively support’ the implementation of the MC (para 40). The opinion also draws on the CJEU’s judgement in Case C-377/12 (at times incorrectly referred to as C-377/13 in the opinion), which emphasises that migration is integrated into EU development policy (paras 49-52). The opinion then highlights the interconnected nature of migration and development with reference to Regulation 1905/2006 and Regulation 233/2014 (both establishing a financing instrument for development cooperation; no longer in force), which identify migration as an important area of cooperation on development. As the opinion shows, Regulation 233/2014 refers to the 2005 European Consensus on Development, and agreed modifications thereto, as guiding its implementation, so that the New European Consensus (which, in turn, refers to the MC) can be seen as being included as a guiding instrument for EU development cooperation.
The opinion then goes on to highlight the MC’s development dimension, including its rootedness in the Sustainable Development Goals (SDGs). It concludes that, as a result, the MC itself falls within EU development policy and thus ‘has legal effects’ for this policy (paras 36-37). Essentially, based on the TEU and TFEU provisions referred to above, the opinion suggests that EU development policy must be implemented in line with the MC’s objectives and standards. The MC constitutes a multilateral solution to a common problem (i.e. migration), which must be promoted in line with Art 21(1) TEU. As an instrument adopted at UN level, the EU and its Member States must comply with the MC’s objectives according to Art 208(2) TFEU. Finally, the opinion refers to the CJEU’s judgement in Case C-399/12, which states that an act has legal effects where it is ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ (para 63). Based on its earlier arguments showing that the MC is a guiding instrument for EU development cooperation, the opinion argues that the Compact is indeed capable of decisively influencing the content of EU legislation on development and thus has legal effects.
Further, the opinion goes on to state that, based on the principle of sincere cooperation, even Member States which voted against endorsing the MC, abstained or did not vote at all must still facilitate this implementation of EU development policy and must not jeopardise it in any way. This is significant because although 19 EU Member States voted in favour of adopting the Compact, three voted against (Czech Republic, Hungary and Poland), five abstained (Austria, Bulgaria, Italy, Latvia and Romania), and one did not cast its vote (Slovakia).
Linking migration and development: irregular migration as a policy priority
The linking of development and migration policy in the EU began in 2005 with the European Consensus on Development.
While the focus at the time was making ‘migration a positive force for development’ (para 110), in 2017, the tone of the revised New European Consensus on Development had shifted from emphasising the positive impact of migration generally on development to emphasising the positive impact of regular migration (para 39). At the same time, the New European Consensus put a focus on irregular migration and how it allegedly ‘raise[s] major challenges and impact[s] negatively on the countries of origin, transit and destination’ (para 39). As a result, a wide range of issues connected to irregular migration and displacement, such as ‘smuggling and trafficking in human beings, border management, remittances, addressing root causes, international protection and return, readmission and reintegration’ became linked with development policy (para 40). Thus, development policy became, and indeed remains, linked with security considerations and migration management strategies.
Yet, as a CEPS policy paper notes, even before the adoption of the New European Consensus, a significant proportion of EU development funds was being spent on projects related to irregular migration (p. 10). This led to tensions inside the European Commission. ‘DG Home [the DG for Migration and Home Affairs] complained about the lack of own funding available as leverage vis-à-vis third countries, and DG Devco [the DG for International Cooperation and Development] felt that its development cooperation money was unduly used for the EU’s internal security objectives’ (CEPS p. 12).
Although DG HOME and DG DEVCO were later allotted their individual budgets, irregular migration continued to be a priority of development policy. At the EU institutional level, this policy priority was eventually accompanied by a change in leadership at DG DEVCO. In 2016, Stefano Manservisi, formerly Director-General at the DG HOME became DG DEVCO’s new Director-General. Since then, a stronger focus in development spending on deterring (irregular) migration has been observable, which includes increased cooperation with third countries.
Linking irregular migration and development: human rights concerns
Connecting development policy with irregular migration has led to the EU’s development funds being spent on a number of projects which violate migrants’ human rights.
For example, the European Court of Auditors has noted that the ‘SaharaMed project, which received 10 million euro in funding to improve capacity in tackling irregular immigration and preventing and intercepting irregular immigrants in the Mediterranean area, included no precautionary measures to guarantee respect for migrants’ rights’ (para 89). In 2020, the Global Legal Action Network (GLAN), the Association for Juridical Studies on Immigration (ASGI) and the Italian Recreational and Cultural Association (ARCI) filed a complaint to the European Court of Auditors concerning the mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ Programme, focusing, among other things, on the lack of respect for human rights in the EU’s cooperation with Libya.
Similar issues are likely to arise with regard to the Neighbourhood, Development and International Cooperation Instrument, which, again, links development cooperation to policy on irregular migration.
The problematic nature of linking development funding with policy on irregular migration illustrates why the Commission legal service’s opinion on the legal effects of the MC is important. In addition to a focus on development, the MC has a strong focus on human rights compliance. The Compact is underpinned by a wide range of binding human rights instruments (MC para 2, n1) and human rights and the rule of law are amongst its guiding principles (para 15). Indeed, the MC ensures 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 a result, if, as the legal service’s opinion suggests, the MC is a guiding instrument for EU development cooperation, capable of decisively influencing the content of EU legislation on development, and has legal effects for this policy, any development policy measure which infringes human rights, such as cooperation with Libya, will not be in line with the MC’s principles. Therefore, the EU will have to completely rethink and redesign its approach to linking development and policy on irregular migration.
Clearly, the Commission is not keen to heed the opinion of its own legal service.
In an answer to a Parliamentary questions regarding the opinion, the Commission reiterated the general idea that the MC is a ‘non-legally binding instrument and ‘therefore has no legal effect on national legal systems, nor does it impose any obligations.’ It went on to state that the legal service’s opinion is an ‘internal document, which does not represent the official Commission position.’
As such, it is all the more important to publicly discuss the opinion and its possible implications for policy focussing on irregular migration, which is supported by EU development funds, and its human rights dimension.