Pauline
Melin, PhD, Lecturer in European Law (Maastricht
University) and Researcher at the Institute for European Law (KULeuven)
Today, the UN Global Compact for Safe,
Orderly and Regular Migration is meant to be approved by an intergovernmental
conference in Marrakesh with the purpose to be adopted on the 19th December
2018 as a Resolution of the UN General Assembly in New York. The debate over
the adoption the Global Compact for Migration has been politically polluted.
Since the end of October 2018 and the withdrawal of Austria, a Member State who
had until then positively contributed to the negotiations Global Compact through
the Council Presidency, no week has passed without a new announcement of an
EU Member State withdrawing or doubting its support for the Global Compact
for Migration. That vague of lack of support coming from the EU Member States is
in contradiction with the (supposedly) common position presented by the Union
delegation during the negotiation process. Those cracks in unity of representation
of the EU on the international scene raise questions concerning the role of the
EU in the negotiations of the Global Compact and the consequences for its
Member States in light of the principle of sincere cooperation.
The
role of the EU in the negotiation of the Global Compact for Migration
The process eventually leading to the adoption
of the Global Compact started in September 2016 with the New
York Declaration whereby 193 Heads of State and Government recognized the
need for developing an international cooperation on migration.
Throughout its different drafts (the Zero
Draft on 5th February 2018, the Zero
Draft Plus on 5th March 2018 and the Final
Draft on 11th July 2018), the wording of the Global Compact concerning its
legal nature stayed consistent. The Global Compact is intended to present “a non-legally
binding, cooperative framework that builds on the commitments agreed
upon by Member States in the New York Declaration for Refugees and Migrants.”
(emphasis added, points 5,6, and 7 of the Zero Draft, Zero Draft Plus and Final
Draft respectively).
From the UN side, the
negotiations of the Global Compact were meant to be as inclusive as
possible with the participation of all its State Members, all members of
specialized agencies that have an observer status with the General Assembly,
intergovernmental organizations and other entities having received a standing invitation.
The EU, as a regional group, was granted standing status in order to participate
in the negotiations and the conclusion of the Global Compact.
From an EU perspective, given the fact that
the Global Compact for Migration is a non-legally binding international
instrument, the procedure for negotiating and concluding an international
agreement enshrined in Article 218 TFEU was not applicable (C-233/02 France
v. Commission, para. 40). The EU participated in the negotiation of the
Global Compact through the delivery of Union delegation statements. According
to the European Commission, the Union delegation statements were “EU coordinated statements” constituting
an “unified EU approach”. That
unified EU approach must however be nuanced considering that, since March 2018,
Hungary has proposed a very different approach
than the one defended by the Union delegation. Furthermore, the exclusion of
Hungary from the EU coordinated statements can be seen from the Union delegation’s
statements
themselves which mention “on behalf of 27
Member States”.
The (lack
of) common position
The fact that the Global Compact is a
non-legally binding international instrument does not entail that the
principles of conferral, institutional balance or sincere cooperation should
not be respected. In case C-660/13 Council
v. Commission on the Swiss MoU, the Court found that the Commission needs
a Council Decision authorizing it to sign the negotiated text of a non-binding
instrument before it can approve it on behalf of the Union. In the context of
the negotiation of the Global Compact for Migration, the Commission in fact
relied on this case in order to justify its proposal
for Council Decisions (since withdrawn)
authorizing it to sign the Global Compact in Marrakesh on behalf of the Union.
However, as opposed to the Council v. Commission case, the
Commission here did not seem to have a clear negotiating mandate from the
Council. In Council v. Commission, there
were some Council Conclusions adopted in 2012 authorizing the start of the
negotiation between the Swiss Confederation and the EU whereby the content of
the negotiation as well as the designation of the European Commission as the
negotiator were set out. The European Commission then considered that because
the negotiated text was similar in content to the negotiated mandate, it could
sign the negotiated text on the basis of Article 17(1) TFEU (para.35). However,
the Court disagreed and held that neither Article 17(1) TEU nor the negotiating
mandate found in the Council Conclusions were sufficient bases for authorizing
the Commission to sign the negotiated text without a Council Decision on the
matter.
In the case of the negotiation of the Global
Compact for Migration, there is in fact no Council Decision authorizing the
start of the negotiation. In order to justify its negotiating position on
behalf of the Union, the
European Commission relies on two documents: the European Council
Conclusions on Migration from October 2016 and the European Consensus on
Development from 2017. In the European
Council Conclusions on Migration, it is simply mentioned that the European
Council welcomes the New York Declaration. In the European
Consensus on Development, it is stated that the EU and its Member States
will actively support the elaboration of the UN Global Compacts on Migration
and Refugees. While the two documents could be considered as an indication that
there is a willingness from the European Council to have a common position in
the negotiations of the Global Compacts for Migration and Refugees, there is
nothing in the documents that either identify the European Commission as the
negotiator on behalf of the Union and its Member States nor that indicate what
the content of that common position would be. With no official document proving
the common position of the EU and its Member States, one might wonder whether
the Member States were obliged to abstain from contradicting the Union
delegations’ statements.
The
point of departure of the principle of sincere cooperation
From the PFOS
case, it seems that the principle of sincere cooperation whereby the Member
States should support the position expressed by the EU or, at least, abstain
from contradicting it starts from the moment there is an established common
position (para. 89). In the PFOS
case, Sweden had submitted a proposal to list PFOS in Annex A of the Stockholm
Convention while a Commission proposal for a Council Decision authorizing the
Commission to submit on behalf of the Union and its Member States a list of
chemicals to be added in the Annexes of the Stockholm Convention did not
comprise PFOS within the list. Firstly, the Court recalled that the principle
of sincere cooperation flows from the requirement of unity in international
representation of the Union (para.73). Then the Court reminded that the
submission by the Commission of a Council proposal for the authorization to
start the negotiation of a multilateral agreement represent the point of
departure for a concerted action even though the proposal has not been adopted
by the Council (para. 74). The Court added that the establishment of a common
position through a Council Decision was not a prerequisite for its existence as
long as “the content of that position can
be established to the requisite legal standards” (para.77). In the PFOS case, the Court found that the fact
that Council’s conclusions and minutes of the meeting of the Council’s Working
Party on International Environmental Issues were sufficient evidences of an
established common position which the Member States should support or, at
least, abstain from contradicting (para.89). In reference to the “requisite
legal standards”, the Court referred another case
whereby the Council and the Commission had concluded an arrangement setting up
a coordination procedure between the Commission and the Member States to decide
on the exercise of responsibilities or on statements in the context of the UN
Food and Agriculture Organization (‘FAO’).
In the context of the drafting process of
the Global Compact for Migration, one may consider the General
Arrangements for EU Statements in multilateral organisations as being the relevant
requisite legal standards. In the General Arrangements, point 2 indicates that
“[G]iven the sensitivity of representation and potential expectations of third
parties, it is essential that, in conformity with current practice, the
preparation of statements relating to the sensitive area of competences of the
EU and its Member States should remain internal and consensual.” (emphasis
added). Hence, while the need for a Council Decision is not required, there is
a need to have an internal discussion and a consensus about the common position.
Considering the fact that internal coordination for setting a common position
takes place behind closed doors, it is not possible to ascertain whether the
internal coordination on the Global Compact for Migration actually took place.
Conclusion
While there might have been internal
coordination and an agreed common position, the lack of evidence of it becomes
a problem when Member States start expressing opinions contradicting the Union’s
position. The uneasiness of the European Commission faced by rebellious Member
States can be felt through the timing of its proposals for Council Decisions
authorizing it to sign the Global Compact for Migration on behalf of the Union.
The European Commission adopted those proposals in March 2018 whereas the Final
Draft of the Global Compact for Migration was only agreed in July 2018. As a
result of the lack of proof of an agreed common position, it is difficult for
the European Commission to ensure that the Member States respect their
obligations under the principle of sincere cooperation. However, there should
be a strong interest for the European Commission to avoid cracks in unity of
representation as it ultimately diminishes the credibility of the EU as a
global actor. Given the growing relevance of non-binding international
instruments, it is unlikely that the cracks in unity of representation will
remain anecdotal to the approval of the Global Compact. It is therefore time to
think about a clear legal framework for the negotiation and conclusion of
non-binding international instruments.
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