The Global Compact for Migration: cracks in unity of EU representation

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.

Barnard & Peers: chapter 24, chapter 26

Photo credit: Steve Peers

The new guidelines for the Area of Freedom, Security and Justice: some critical comments

Emilio De Capitani

In the coming days the European Council will debate and adopt the long awaited Guidelines which will shape the future of the EU's Area of Freedom, Security and Justice for forthcoming years. These guidelines follow the end of the current Stockholm Programme (2009-2014) and come near the end of the last transitional period for the measures adopted before the entry into force of the Lisbon Treaty on police and judicial cooperation in criminal matters (what remains of the former intergovernmental  'third pillar' cooperation).

Regrettably the draft European Council Conclusions which have been circulated (see the Annex below) and the programme of the incoming “trio” Presidencies (Italian, Latvian and Luxembourg) which will implement them in the next 18 months confirm the worst provisions detailed in our previous post on this issue.

If anyone was searching for proof that European Strategies lack political vision and are a collection of bureaucratic and diplomatic choices, he or she will find in these documents the confirmation of this thesis.  

The emphasis of the European Council on the external dimension of the justice and home affairs polices by privileging soft law instruments such as the Global Approach on Migration or instruments such as mobility partnerships confirm two emerging trends since the entry into force of the Lisbon Treaty : 

- to transfer to the European Council the main EU political choices in the last area where the treaties still do not grant and effective parliamentary and judicial control. 

- to continue to avoid legally binding measures on which solidarity mechanisms can be established (Schengen, Frontex, and Eurosur being the exceptions which confirm the rule). 

Rhetorical declarations aside, the draft European Council guidelines confirm the choice for general (and generic) strategies such as the Internal security strategy or the anti-drugs strategy which are adopted without any debate between the European Council members nor with the European Parliament.

These Strategies should then be implemented by the so called “Policy Cycle” where EU agencies and the Member States representatives - instead of verifying their consistency with national internal security strategies deciding which areas the EU's intervention could add value in - pick and choose (on voluntary basis) some priorities which are approved without debate (as point A) by their ministers without (again) any European or national parliamentary debate.

Where choices and priorities are instead very clearly stated is on the role of the EU Agencies (Europol, Eurojust, EASO..) and bodies (the Anti Terrorism Coordinator) or where it is decided to go on with the establishment of an ambitious technocratic project such as the "smart borders" system (the feasibility of which is still to be proved even in the United States) or by creating an entry-exit system for third country nationals to control better the problems of the "over stayers" (those who remain after their initial permitted period of stay runs out) which apparently is one of the most dangerous threats to the EU. Needless to say that this idea is not new as it was raised by the US Congress years ago and  was considered “silly” in the US also by the former Homeland Security Secretary Chertoff under the BUSH administration.

Even worse, both the European Council draft Conclusions and the trio Presidency programme insist as one of their big priorities is the establishment of a "bona fide traveller" system which will discriminate between one traveller and another on the basis of de facto arbitrary criteria. They also reinstate their commitment to the creation of a European passenger name record (PNR) system.

These projects have in common the rather paranoic idea that any traveller is a potential danger. This is appalling in an European Union where there is still no permanent connection between the criminal records of the Member States, so that information on real criminals can be shared and where a terrorist (like the author of the attack to Jewish Museum in Brussels) can freely circulate even after been checked twice as a dangerous person on the Schengen information System.  

Selling out, for a false sense of security, the real fundamental rights of EU citizens, cannot be the real answer to the threats the EU will face in the coming years.

These inconsistencies can be solved by overcoming the 'silo' approach inside and between the MS and by better framing with a legislative measure the policy cooperation between the Member States (which still do not trust each other). True efficiency should then be measured if the threats are really supranational.

Even a project like  PNR could have its (crazy) logic if somewhere in Europe there were a central intelligence system which could filter these data against a massive intelligence analysis and profile, as happens in the USA. But as it has been designed, PNR will be only a policy laundering exercise where the European Union legislation is adopted to justify the collection of massive personal data at national level. Should we remember  that only on April 8th the Data retention directive, which followed the same logic, was annulled by the CJEU as a clear violation of the proportionality principle and of Articles 7 and 8 of the EU Charter?

The point is that selling out the personal data of EU citizens appears to the European Council less costly than building a real binding framework for police cooperation on the basis of Article 87 of the TFEU. The proof is given by the new Europol whose proposed legal basis (after amendments during negotiations) makes no more reference to Article 87 TFEU and which does not compel the Member States to share their security related informations.

These being the worrying projects on the European Council and Council side one can only hope that the newly elected European Parliament, in its July session, will challenge them and take the lead for a new alternative and legally sound policy which can shape in the next legislature an European area of Freedom, Security and Justice where the citizens' needs and not the administrations will be the real compass.

Barnard & Peers: chapter 25, chapter 26

Annex - draft Guidelines 

             

1.             One of the key objectives of the Union is to build an area of freedom, security and justice without internal borders, with full respect for fundamental rights. To this end, coherent policy measures need to be taken with respect to asylum, immigration, borders, police and judicial cooperation.

2.             All the dimensions of a Europe that protects its citizens and offers effective rights to people inside and outside the Union are interlinked. The success or failure in one field depends on the performance in the other fields as well as on synergies with related policy areas.  The answer to many of the challenges in the area of freedom, security and justice lies in relations with third countries, which calls for improving the link between the EU’s internal and external policies. This has to be reflected in the internal organisation of the EU institutions and bodies. Coordination with and within the Member States should be stepped up.

3.             Building on the past programmes, the overall priority is now to consistently transpose, effectively implement and consolidate the legal instruments and policy measures in place. Intensifying operational cooperation, enhancing the role of the different EU agencies and ensuring the strategic use of EU funds will be key. In further developing the area of freedom, security and justice over the next years, it will be crucial to ensure the protection of fundamental rights, including data protection, whilst addressing security concerns, also in relations with third countries, and to adopt a strong EU General Data Protection framework by 2015.

4.             Faced with challenges such as instability in many parts of the world as well as global demographic trends, an ageing population and skills shortages in Europe, the Union needs an efficient and well-managed migration and asylum policy. A comprehensive approach is required, optimizing the benefits of legal migration and offering protection to those in need while tackling irregular migration resolutely.

5.             To remain an attractive destination for talents and skills, Europe must compete in the global race for talent. Strategies to maximise the opportunities of legal migration should be developed, including the streamlining of existing rules and a dialogue with the business community. The Union should also support Member States' efforts for active integration policies which foster social cohesion and economic dynamism.

6.             The Union's commitment to international protection requires a strong European asylum policy based on the Treaty's principles of solidarity and responsibility. The full transposition and effective implementation of the Common European Asylum System (CEAS) is an absolute priority. This should result in high common standards and stronger cooperation, creating a level playing field where asylum seekers are given the same procedural guarantees and protection throughout the Union. It should go hand in hand with a reinforced role of the European Asylum Support Office (EASO), particularly in promoting the uniform application of the acquis. Converging practices will enhance mutual trust and allow to move to future next steps, including mutual recognition of asylum decisions.

7.             Addressing the root causes of irregular migration flows is an essential part of the EU migration policy. It is imperative to avoid the loss of lives of migrants undertaking hazardous journeys as well as to prevent and reduce irregular migration. A sustainable solution can only be found by intensifying cooperation with countries of origin and transit. Migration policies must become a much stronger integral part of the Union's external and development policies, applying the more for more principle and building on the Global Approach to Migration and Mobility. The focus should be on the following elements:

- strengthening and expanding Regional Protection Programmes, in particular in the Horn of Africa, in close collaboration with UNHCR. In view of the protracted crisis in Syria, increase contributions to global resettlement efforts;

- addressing smuggling and trafficking in human beings more forcefully, with a focus on priority countries and routes. Particular attention should go at present to the situation in Eritrea and the Sinai;

- establishing an effective common return policy and enforcement of readmission agreements;

- fully implementing the actions identified by the Task Force Mediterranean.

8.             The establishment of the Schengen zone, allowing people to travel without internal border controls, and the increasing numbers of people travelling to the EU require efficient management of the EU's external borders to ensure strong protection. This is in the first place the role of the Member States, which must fully take their responsibilities. At the same time the Union must mobilize all the tools at its disposal to support them in this task. To this end:

- the integrated management of the external borders should be modernised to ensure smart border management with an entry-exit system and registered travellers programme and helped by the new Agency for Large Scale IT systems (EU-LISA);

- Frontex, spearheading European solidarity in the area of border control, should reinforce its activities in terms of operational assistance and increase its reactivity towards rapid evolutions in migration flows, making full use of the new European Border Surveillance System EUROSUR;

- the possibility of setting up a European System of Border Guards to enhance the control and surveillance capabilities at our external borders should be explored.

At the same time, the common visa policy needs to be modernised by facilitating legitimate travelling while maintaining a high level of security and implementing the new Schengen governance system.

9.             It is essential to guarantee a genuine area of security to European citizens by preventing and combatting organised crime, human trafficking and corruption. At the same time, an effective EU Counter terrorism policy is needed, whereby all relevant actors work closely together, integrating the internal and external aspects of the fight against terrorism. In this context, the European Council reaffirms the role of the EU Counter Terrorism Coordinator. In its fight against organised crime and terrorism, the Union should back the national authorities by mobilising all instruments of judicial and police cooperation, with a reinforced coordination role for Europol and Eurojust, including through:

- the review of the internal security strategy;

- the improvement of cross-border information exchanges, including on criminal records;

- the development of a comprehensive approach to cybersecurity and cybercrime;

- the prevention of radicalisation and extremism and addressing the phenomenon of foreign fighters, including through a legal instrument allowing for EU wide alerts.

10.         The smooth functioning of a true European area of justice with respect of the different legal systems and traditions of the Member States is vital for the EU. In this regard, mutual trust in each other's justice systems should be further enhanced. A sound European justice policy will contribute to economic growth by helping businesses and consumers to benefit from a reliable business environment within the internal market. Further action is required to:

- promote the consistency and clarity of EU legislation for citizens and businesses;

-simplify access to justice; promote effective remedies and use of technological innovations including the use of e-justice; 

- examine the reinforcement of the rights of persons, notably vulnerable persons, in civil procedures to facilitate enforcement of judgements in family law and in civil and commercial matters;

- enhance mutual recognition of decisions and judgments in civil and criminal matters;

- reinforce exchanges of information between the authorities of the Member States;

- fight fraudulent behaviour and damages to the EU budget by advancing negotiations on the European Public Prosecutor's Office;

- facilitate cross-border activities and operational cooperation;

- enhance training for practitioners;

- mobilise the expertise of relevant EU agencies such as Eurojust and the Fundamental Rights Agency (FRA).

11.         As one of the fundamental freedoms of the European Union, the right of EU citizens to move freely and reside and work in other Member States needs to be protected, including against possible abuse or fraudulent claims.

12.         The European Council calls on the EU institutions and the Member States to ensure the appropriate legislative and operational follow-up to these guidelines and will hold a mid-term review in 2017.