Rule of Law and Human Mobility in the Age of the Global Compacts

A special issue of Laws (ISSN 2075-471X). This special issue belongs to the section "Human Rights Issues".

Deadline for manuscript submissions: closed (1 September 2023) | Viewed by 33297

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Special Issue Editors

World Trade Institute, University of Bern, 3012 Bern, Switzerland
Interests: human rights; governance; migration; development; trade
Department of Modern Languages, Literature, History, Philosophy and Law Studies (DISTU), Tuscia University, 01100 Viterbo, Italy
Interests: International cooperation on migration; agencification; EU external action; EU migration and asylum policies; border management law; new technologies and AI; social and cultural rights; the EU Charter of Fundamental Rights and human rights adjudication; children’s and women’s rights
1. Institute of International, Political and Regional Studies / Department of International Relations, Corvinus University of Budapest, 1093 Budapest, Hungary
2. European Union Agency for Fundamental Rights, A-1040 Vienna, Austria
Interests: new types of interactions between international law and EU law; expulsion of aliens under international and EU law; protection of stateless persons; international and EU migration law; international responsibility of States and international organizations

Special Issue Information

Dear Colleagues,

The adoption of the international cooperation framework on cross-border migrations, the Global Compact Migration (GCM), has amplified political pressure on endorsing states to find and implement shared solutions to common challenges related to human mobility. At the same time, the Global Compact on Refugees (GCR) has added a new layer of soft and informal law-making to international refugee law. Both instruments depart from a fundamental assumption: the trade-off in the GCM and the GCR between the effectiveness of international cooperation and the compulsory nature of international instruments related to people on the move.

The shift toward informal solutions to be pursued through atypical, non-legally binding commitments—with uncertain legal effects—has been proposed and embraced with a view to reaching a vast consensus on sensitive matters, directly impinging upon the powers and prerogatives of sovereign states to control their borders and ensure respect for public order and national security.

However, the threats connected to the porous and volatile borders have amplified certain national countertrends, some of which have led to disaffecting migrants and refugees from their human rights during the migratory journey and before obtaining regular status. This has led to the proliferation of instances of discrimination and to new patterns of exclusion.

This disjuncture between constitutionally guaranteed access to rights and services on the one hand and national legislation on immigration and borders on the other has been enforced by opaque administrative practice. These include the watering down of the right to effective remedy for unwanted migrants and asylum seekers, excluding them from the actual enjoyment of their substantive rights and access to basic services, as well as informal containment arrangements, which infringe the right to leave any country and other human rights.

In this Special Issue, we discuss why obstacles to migrants accessing their substantive and procedural rights are not only a serious human rights issue, but also a threat to the rule of law, which hinders an effective global migration governance.

Thus, this Special Issue collects a group of articles addressing the normative, administrative, or judicial barriers impeding access to rights for migrants and refugees, regardless of their status. Against the backdrop, the articles investigate the formal and material impact of those barriers on the rule of law in the countries of destination, alongside their influence on the modes, scopes, and characteristics of their cooperation with countries of origin and transit. Building on these mapping efforts, the articles scrutinize whether the premise of “bundling” human rights, endorsed by the Global Compacts, coupled with the challenges of soft and informal law-making, will improve human rights protection and thus sustainable migration governance or whether it undermines the acquis of international human rights conventions and the national rule of law.

Special attention will be devoted to regional practices, especially at the European Union level, taking into account the prominent role played by EU cooperative models in shaping concepts and governance mechanisms envisaged by the Global Compacts.

With a view to sketching out the legal and policy innovations for how the Global Compacts’ implementation shall be better monitored, the Special Issue proposes the following lines of inquiry:

  • First, the justiciability of the Global Compacts’ actionable commitments before domestic courts as a tool to enhance the judicial protection of migrants and refugees;
  • Second, how the interplay between the Global Compacts and the human rights treaties is directly or indirectly affecting the protection of migrants and refugees;
  • Third, the impact of the Global Compact for Migration on externalization, border management, and the contribution of regional experiences in framing their respective scopes;
  • Fourth, data-driven and evidence-based migration policies as means to untie the migration discourse from political pressures and as a source for legitimizing decision making, including the role of digital technology in standardizing migration and asylum decisions;
  • Fifth, the potential of non-discrimination as the backbone of the Global Compacts to ensure that basic services are provided to all migrants regardless of their status.

The articles in this Special Issue contribute to advancing the rule of law in migration governance, a theme which has gained more prominence with the resurgence of soft law tools with the advent of UN Compacts.

Dr. Marion Panizzon
Dr. Daniela Vitiello
Dr. Tamas Molnar
Guest Editors

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Keywords

  • Asylum
  • Access to basic services
  • Border management
  • Externalization
  • Global Compact for Migration, Global Compact for Refugees
  • Human Rights
  • Migration Governance
  • Migrants in vulnerable situations
  • Migrant status
  • Non-Discrimination
  • Right to an effective remedy
  • Rule of Law
  • Soft Law

Published Papers (9 papers)

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Editorial

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15 pages, 322 KiB  
Editorial
The Rule of Law and Human Mobility in the Age of Global Compacts: Relativizing the Risks and Gains of Soft Normativity?
by Marion Panizzon, Daniela Vitiello and Tamás Molnár
Laws 2022, 11(6), 89; https://0-doi-org.brum.beds.ac.uk/10.3390/laws11060089 - 15 Dec 2022
Cited by 2 | Viewed by 1990
Abstract
The 2016 New York Declaration,1 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 [...] Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)

Research

Jump to: Editorial

25 pages, 353 KiB  
Article
Refugees as Migrant Workers after the Global Compacts? Can Labour Migration Serve as a Complementary Pathway for People in Need of Protection into Sweden and Germany?
by Zvezda Vankova
Laws 2022, 11(6), 88; https://0-doi-org.brum.beds.ac.uk/10.3390/laws11060088 - 06 Dec 2022
Cited by 2 | Viewed by 3346
Abstract
Both the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees commit states to diversify and expand on labour migration opportunities, in particular by facilitating work-based ‘complementary pathways’ for the admission of refugees. Yet, almost four years after [...] Read more.
Both the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees commit states to diversify and expand on labour migration opportunities, in particular by facilitating work-based ‘complementary pathways’ for the admission of refugees. Yet, almost four years after their adoption, such pathways remain limited in many cases. It is the aim of this article to examine the constraints posed by existing immigration laws to serve as an admission ground for people in need of protection and the key legal, policy and political issues that need to be addressed to allow the commitments related to labour migration pathways contained in the Compacts to be implemented in national legal systems. In so doing, this article applies a legal and political feasibility lens to evaluate why these pathways for persons in need of protection are often small-scale, underutilized by employers and unwelcoming to potential refugees. It employs a comparative case study methodology drawing on more than 30 semi-structured interviews with stakeholders at the international and national levels in Germany and Sweden. The article concludes that the main challenge to the political feasibility of opening work-based complementary pathways for refugees is politicians’ and policy makers’ traditional thinking of migration and asylum as separate domains. When it comes to challenges to legal feasibility, these stem from entry requirements, lack of sufficient interest among employers who are a key stakeholder in the facilitation of such pathways, as well as issues related to the security of status of potential beneficiaries of such measures. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
26 pages, 833 KiB  
Article
Comprehensive Approaches in the Global Compact for Migration and the EU Border Policies: A Critical Appraisal
by Daniela Vitiello
Laws 2022, 11(5), 78; https://0-doi-org.brum.beds.ac.uk/10.3390/laws11050078 - 19 Oct 2022
Cited by 4 | Viewed by 3268
Abstract
The quest for safe, orderly and regular migration underpins the UN Global Compact for Migration (GCM) and translates into “comprehensive and integrated” responses to large movements of refugees and migrants. The effort to de-compartmentalise the governance of cross-border human mobility through “comprehensiveness” shapes [...] Read more.
The quest for safe, orderly and regular migration underpins the UN Global Compact for Migration (GCM) and translates into “comprehensive and integrated” responses to large movements of refugees and migrants. The effort to de-compartmentalise the governance of cross-border human mobility through “comprehensiveness” shapes the overall search for greater policy coherence via regime interaction and shared responsibility within the GCM. A similar effort has been made at the EU level to overcome the “silos approach” characterising the distinct policies on migration, asylum, and border management. This parallelism is particularly meaningful as the reason is twofold: at the operational level, because of the role played by the EU in fashioning the cooperation models underpinning the GCM, which enhances the relevance of EU law and practice for the implementation of the GCM; at the normative level, because the GCM draws on four guiding principles—i.e., sovereignty, good governance, human-centricity, and the rule of law—which are also key features of the EU legal system. Departing from these premises, this article reveals the meaning of “comprehensive and integrated” responses to large movements of refugees and migrants in the GCM and EU border policies. It does so in order to provide a critical appraisal of the legal and policy implications of comprehensive approaches in the global and European governance of cross-border human mobility. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
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21 pages, 344 KiB  
Article
GCM Objective 13: In Search of Synergies with the UN Human Rights Regime to Foster the Rule of Law in the Area of Immigration Detention
by Izabella Majcher
Laws 2022, 11(4), 52; https://0-doi-org.brum.beds.ac.uk/10.3390/laws11040052 - 23 Jun 2022
Cited by 4 | Viewed by 2524
Abstract
Reflecting the focus of this Special Issue on “Rule of Law and Human Mobility in the Age of the Global Compacts,” this article contributes to the discussion on the threats to the rule of law posed by immigration detention through the lens of [...] Read more.
Reflecting the focus of this Special Issue on “Rule of Law and Human Mobility in the Age of the Global Compacts,” this article contributes to the discussion on the threats to the rule of law posed by immigration detention through the lens of the Global Compact for Safe, Orderly and Regular Migration (GCM). In GCM’s Objective 13, states committed to use immigration detention only as a measure of last resort, work towards alternatives and draw from eight sets of actions to realise this commitment. Given the attention the GCM attracts, its nonbinding character and the voluntary nature of its review can be used by states as justification for their inadequate implementation of binding human rights obligations and insufficient reporting on implementation to the supervising bodies. While acknowledging these challenges to the rule of law, this article explores the ways the GCM can actually foster the rule of law in the area of immigration detention. To strengthen the rule of law principles of legality, legal certainty, prohibition of arbitrariness, access to justice and the right to an effective remedy, Objective 13 needs to support a binding human rights regime by preventing arbitrary detention and its implementation at the domestic level. The article discusses the interplay between Objective 13 on the one hand, and, on the other, the International Covenant on Civil and Political Rights, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and Convention on the Rights of the Child at three levels—the detention provisions, the support provided to states for the implementation of these provisions and the monitoring of states’ implementation—and it proposes means to strengthen the synergies between the two frameworks. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
13 pages, 298 KiB  
Article
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?
by Aylin Yildiz
Laws 2022, 11(3), 46; https://0-doi-org.brum.beds.ac.uk/10.3390/laws11030046 - 02 Jun 2022
Cited by 2 | Viewed by 3157
Abstract
Human mobility in the context of disasters and climate change (HMDCC) is a complex problem, which is planetary in scope and intergenerational in its impact. From the mid-seventeenth century’s little ice age to the rising sea levels due to climate change, people have [...] Read more.
Human mobility in the context of disasters and climate change (HMDCC) is a complex problem, which is planetary in scope and intergenerational in its impact. From the mid-seventeenth century’s little ice age to the rising sea levels due to climate change, people have been driven to move by environmental factors for a long time. Yet, an international treaty regime that addresses the protection needs of persons mobile due to environmental factors has never been created. Against this backdrop, the Global Compacts were negotiated to reflect a “sophisticated” understanding of HMDCC, and their adoption enables cooperation on a wide range of policies and laws to this effect. Examining the implementation of the Global Compacts with respect to the commitments relating to HMDCC, this article finds that States and non-State actors have cooperated to address data gaps and to incorporate mobility considerations into national frameworks on climate change and disaster management. However, States must implement all dimensions of their commitments relating to HMDCC, especially with regards to the facilitation of migration as an adaptation strategy to disasters and climate change, in order to build a comprehensive approach. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
12 pages, 230 KiB  
Article
Border Procedures in the European Union: How the Pact Ignored the Compacts
by Galina Cornelisse and Marcelle Reneman
Laws 2022, 11(3), 38; https://doi.org/10.3390/laws11030038 - 22 Apr 2022
Cited by 8 | Viewed by 3766
Abstract
This article analyses the (potential) role of the Global Compact for Migration and the Global Compact for Refugees in the development of EU law concerning asylum seekers who arrive at the external borders of the European Union (EU). Under the current rules, many [...] Read more.
This article analyses the (potential) role of the Global Compact for Migration and the Global Compact for Refugees in the development of EU law concerning asylum seekers who arrive at the external borders of the European Union (EU). Under the current rules, many asylum seekers are refused entry to the territory of the EU and detained while their asylum claim is examined in a border procedure. Some EU Member States even push back asylum seekers without a proper assessment of their needs for international protection. Despite widespread violations of the fundamental rights of asylum seekers at the external borders of the EU, the New Pact on Migration and Asylum presents the new integrated border procedure as an important instrument to ‘deal with mixed flows’ and make the Common European Asylum System (CEAS) work. However, the EU legislator 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 and prevention of abuse. Neither does the Pact provide a solution for pushbacks and systematic use of detention, nor does it guarantee the quality of the asylum procedure, including the identification of persons with special needs. The Pact therefore not only fails to comply with the EU’s own Better Regulation guidelines and protect the fundamental rights of asylum seekers, but it also ignores the standards of the Global Compacts. What role can the Global Compacts still play in the ongoing negotiations over the Pact? Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
12 pages, 273 KiB  
Article
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
by Alessandra Favi
Laws 2022, 11(3), 37; https://doi.org/10.3390/laws11030037 - 21 Apr 2022
Cited by 3 | Viewed by 3291
Abstract
In recent times, the CJEU has started to develop its judicial response to the “rule of law crisis” in some Member States. On the one hand, this new trend has emerged also as a reaction to some national reforms concerning asylum and migration [...] Read more.
In recent times, the CJEU has started to develop its judicial response to the “rule of law crisis” in some Member States. On the one hand, this new trend has emerged also as a reaction to some national reforms concerning asylum and migration law. On the other hand, the CJEU in protecting the EU founding values has deployed its “traditional” competences attributed to it by the EU Treaties, namely the mechanisms of the preliminary ruling procedure and the infringement procedure. Against this background, this contribution aims at investigating this new CJEU’s jurisprudence through the lens of the Global Compacts on Refugees and Migration. This will lead us to reflect on how the CJEU’s caselaw could be seen as an effective tool to enhance the rule of law and protect third-country nationals, at least within the EU, and indirectly contributes to increasing compliance with some of the commitments laid down in the Global Compacts, regardless of the position taken by some recalcitrant EU Member States with respect to these documents. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
17 pages, 278 KiB  
Article
The UN Global Compacts and the Common European Asylum System: Coherence or Friction?
by Elspeth Guild, Kathryn Allinson and Nicolette Busuttil
Laws 2022, 11(2), 35; https://0-doi-org.brum.beds.ac.uk/10.3390/laws11020035 - 12 Apr 2022
Cited by 5 | Viewed by 3930
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 [...] Read more.
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. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
12 pages, 262 KiB  
Article
India and Refugee Law: Gauging India’s Position on Afghan Refugees
by Atul Alexander and Nakul Singh
Laws 2022, 11(2), 31; https://0-doi-org.brum.beds.ac.uk/10.3390/laws11020031 - 02 Apr 2022
Cited by 4 | Viewed by 4903
Abstract
The turbulent transition of power from the Ghani administration to the Taliban regime has not only signalled a death knell to the fundamentals of representative democracy, but it has also provided fertile ground for the large-scale exodus of refugees into neighbouring nations. In [...] Read more.
The turbulent transition of power from the Ghani administration to the Taliban regime has not only signalled a death knell to the fundamentals of representative democracy, but it has also provided fertile ground for the large-scale exodus of refugees into neighbouring nations. In view of this, a scrutiny of the Indian state’s response to the influx of Afghan refugees is warranted. India is not a signatory to the 1951 Refugee Convention, nor to the 1967 Protocol, and, in the absence of any concrete national refugee law and policy, Afghans who are seeking refugee status are processed on a haphazard case-by-case basis. In chalking out a future course of action, this paper aims to analyse India’s response to the possible Afghan refugee inflow in the aftermath of the Taliban takeover and in light of India’s recent endorsement of the Global Compact on Refugees (GCR). Against the backdrop of the limited mandate of the UNHCR and the lack of “political will” from the successive governments, we contend that the Supreme and High Courts of India have been instrumental in construing a tentative shield of protection for persons already in the country, which is working out of a judicial form of the endorsement of the non-refoulment principle, in the absence of legislative and executive commitments, and the preferential “acts of kindness” strategy, which discriminates amongst different refugee groups as per origin or religious belief. Moreover, it is argued that the GCR has made few inroads into the overall paradigm as to how refugees are perceived in India. The research concludes that India must enact legislation on refugees for any constructive engagement beyond archaic quick-fix solutions. Full article
(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)
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