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.
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.