Blog post written by Kathryn Allinson (Queen Mary University of London), Paul Erdunast (Immigration Law Practitioners Association), Professor Elspeth Guild (Queen Mary University of London) and Dr Tugba Basaran (University of Cambridge) and forms part of a series of blog posts analysing the UN’s Global Compact for Safe, Orderly and Regular Migration.

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1. Introduction

 

The Global Compact for Safe, Orderly and Regular Migration (the ‘Compact’) is the first inter-governmentally negotiated agreement to cover all dimensions of international migration in a holistic and comprehensive manner. It presents a significant opportunity to improve the governance on migration, to address challenges associated with contemporary migration, and to strengthen the contribution of migrants and migration to sustainable development.  The process leading to the Global Compact for Migration started in April 2017. The Compact was endorsed by States in a high-level meeting in Marrakesh on 10-11 December 2018 (Intergovernmental Conference 2018) and was adopted by the United Nations General Assembly (UNGA) on 19 December 2018 (UN News 2018a). However, the Compact has been met with contention and criticism by a number of States regarding its legal status and its capacity to determine States’ actions as to their treatment of migrants. This status will be the topic of the discussion in this blog.

 

Debates regarding the legal status of a ‘Compact’ have been extensive (Guild and Grant, 2018; Gammeltoft-Hansen et al 2017). As the Compact originated from an UNGA Resolution (the New York Declaration) and was endorsed by the UNGA, some have proposed that it may have legal force, or even could count as a source of international law under Article 38 of the ICJ; the final document clarifies that the Compact is legally non-binding and scholars have affirmed this position, as have States (Goodwin-Gill and McAdam 2018; New Zealand Legal advice to ministers). The following will examine, given the non-binding legal status of the Compact, why it has been controversial with a number of States and what the implications of its status are in a domestic law context, using the UK as a case study.

 

2. What is the legal status of the Compact?

 

There are two implications of the status of the Compact. First, while it is not legally binding, it is a cooperative framework that consolidates existing human rights obligations and iterates the principle of non-regression and non-discrimination which are legally binding on those States that have ratified the relevant treaties. Second, while it is not legally binding, it is politically binding, which will have consequences for State action.

 

2.1 Consolidation of human rights obligations

 

At the centre of the dissent by States is the question of their sovereignty (UN hit by withdrawal, France 24). Louise Arbour, the UN’s Special Representative on Migration, expressed her disappointment with those countries reneging on their commitments, stating that the Compact does not oblige States to do anything that they do not want to do (Ledere EM, 2018). This argument is based on the text of the Compact that it is a ‘non-legally binding, cooperative framework’. According to the former President of the UNGA Miroslav Lajčák “it does not encourage migration, nor does it aim to stop it. It is not legally binding. It does not dictate. It will not impose, and it fully respects the sovereignty of States” (UN News 2018b). What it does do is consolidate existing human rights obligations and iterate the principle of non-regression and non-discrimination. States must comply with their human rights obligations, including migrants, and are prohibited from discriminating against migrants (or between them).

 

The Compact is founded on international human rights law. This is composed of the international human rights treaties such as the UN Convention on the Rights of the Child (UNCRC) signed by 196 States (this means the whole world) and the other UN human rights treaties. At the commencement of the Compact process, the New York Declaration stated clearly that human rights are the foundation for the two Compacts but at the same time confirmed that neither Compact would go beyond the existing commitments of States under their human rights and refugee obligations already voluntarily accepted. Thus, while the Compact is not legally binding, the human rights undertakings of States which underpin it are. States cannot relieve themselves of the human rights commitments (including extending them to migrants) to which they have bound themselves by refusing to sign the Compact.

 

The Compact does not create any new rights but brings together existing rights providing a cooperative framework to work towards their better implementation for a specific category of people – migrants (always remembering that one country’s migrant is another country’s citizen). It is the application of international human rights law, enshrined in the international conventions, to everyone, including migrants, which creates the friction; despite the fact that these existing conventions already ensured the non-discrimination of human rights. The objective of international human rights conventions is to set a baseline below which no State can go in its treatment of people (including migrants). Furthermore, the Compact includes a number of standard-setting norms, and while formally not considered binding, other areas of international law highlight that such norms may nonetheless be hugely important in governing State behaviour. The Compact may come to have a norm-filling role by setting out common ‘principles, commitments and understandings’ (see Modalities document) in regard to existing rules and their interpretation in established areas of international law.

 

2.2 A politically binding agreement

 

While the Compact may not be legally binding, it is politically binding on States. It provides evidence of the political intentions of the State; the commitments they have made at the international level and the frameworks they have agreed to work within. The Compact is the product of State-led negotiations and has been endorsed by States at the UNGA. It consists of ‘commitments’ and ‘actionable objectives’ that signatory States have pledged to respect. Furthermore, paragraph 41 of the Compact holds that States ‘will implement the Global Compact’ providing clear political intent and approval. As such, in order to act in ‘good faith’ (See Reinhold 2013), the governments must ensure that domestic legislation and policy are not in conflict with the commitments of the Compact, as acknowledged by the UK DFID ministerial statement on the Compact. The Compact need not have legal force to be used to interpret the obligations that the State has agreed to be bound by (see discussion regarding the use of Hansard for interpreting State obligations in Pepper (Inspector of Taxes) v Hart [1993] AC 593). While the Compact does not legally bind States, it indicates their political will and as a result is a tool for the interpretation and clarification of States’ obligations and commitments.

 

The UN High Commissioner for Refugees (UNHCR) Handbook provides an interesting comparison. As an international legal document, it has no legal authority at all; it is simply the product of an international agency with arguably weaker authority than the Compact as it was not agreed by States. However, due to the supervisory role the Office of UNHCR has in providing guidance on the operation of the Refugee Convention; it “may provide valuable guidance for Member States when determining refugee status according to Article 1 of the Geneva Convention” (Recital 15 of the EU Qualification Directive). As a result, in R. (on the application of Adan (Lul Omar)) v Secretary of State for the Home Department [2001] 2 A.C. 477 at p.520, Lord Steyn held that:

“the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals.’

 

Similarly, MacDonald finds that the UNHCR ExCom reports are a source of law that do not have the force of law because they are representative of State’s intentions at the international level. Therefore, we see that such documents, like the Global Compacts, are living instruments capable of supplementing international law. They can influence the interpretation and application of international law in national law cases as they provide context and evidence of State intentions regarding the fulfilment of obligations. Governments should not act in a way contradictory to the international agreements and standards to which they have agreed. Therefore, they aid interpretation of a State’s international legal obligations and represent growing norms within the international landscape.

 

Global agreements like the Compact contribute to the overarching international legal framework. In Brierly’s Law of Nations, Andrew Clapham proposes that a ‘zebra code’ gradually builds up at the international level. This aggregate of legal norms, both binding and non-binding, work together to build a framework of law that interacts and influences. As such, the hard and soft law aspects must be considered together to understand the full picture of international law, they do not stand in isolation. This is not necessarily customary international law, though it may contribute to its development, it is treaty and other acts of the international community that must be seen holistically. The Compact is increasingly being viewed as a soft law instrument with potential normative and interpretative force depending on how it is utilised by states and Courts now that it has been adopted (See Gammelhoft-Hansen et al 2017).

 

3. How can domestic legislation assist in the implementation of the Compact?

 

Given the complexity around the legal authority of the Compact, the influence it will have on government policy remains to be seen. However, as a politically binding agreement that has been endorsed, domestic legislation and policy will be influenced by the implementation of the Compact. For example, the UK as a contracting party has agreed to implement the objectives which the Compact sets out, as evidenced by paragraph 41 of the Compact:

‘We commit to fulfil the objectives and commitments outlined in the Global Compact, in line with our vision and guiding principles, by taking effective steps at all levels to facilitate safe, orderly and regular migration at all stages…’

 

As a result, in interpreting domestic legislation, practitioners and judges must keep in mind the international commitments the State has made and ensure the State does not act in conflict with these. The UK government has made clear that national policy and legislation will not be in conflict with the Compact whilst highlighting that the Compact remains non-binding in a DFID statement and ministerial briefing. However, the Compact will have an effect in national law, including in the UK, as it evidences the political intention and international commitments that the UK has made.

 

The Compact provides evidence of the political will and intent of the State at the international level, along with context in which other, legally binding, instruments are interpreted to ensure a state is acting in ‘good faith’ with its international obligations. The basic rule for interpretation of legal instruments is found in the Vienna Convention on Law of Treaties (VCLT). Article 31 of the VCLT requires that treaty interpretation must be taken together with the context in which the documents exist and any subsequent agreements, practice or rules of international law that are applicable in relations between the parties (VCLT Article 31). As such, the Compact, which has widespread, though not universal, adoption by State parties must influence the interpretation of treaties between State parties in terms of the commitments for which they are legally bound and interpretation of the scope of such obligations. This is not a new practice; national courts have long used Council of Europe recommendations to interpret national obligations and the Strasbourg Court uses the obligations states have signed up to in order to find the consensus on their obligations (see Nada v Switzerland  2012), and they rely on non-binding measures to understand the intention of states at the time of the case.

 

The ‘commitments’ and ‘actionable objectives’ found within the Compact can thus be used as tools by lawyers to hold the government accountable for their international agreements, and which judges should take into account when interpreting statutes and the Immigration Rules. Article 27 of the VCLT declares that a party to a treaty may not invoke the provisions of its internal law to justify its failure to perform obligations set out in a treaty. Per Lord Dyson in Assange v Swedish Prosecution Authority [2012] UKSC 22 “There is no doubt that there is a “strong presumption” in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations.” As such, there is a judicial presumption that the law is compatible with international obligations unless there is a clear incompatibility, even if there is no obvious ambiguity in the domestic legislation.

 

UK case law demonstrates that the international instruments a State has adopted or ratified to have a role to play in interpreting the compliance of the national policies with national and international law. Where courts have discretion, they should exercise it compatibly with the UK’s international law obligations (Rantzen v Mirror Group Newspapers (1986) Ltd. [1994] QB 670). Further, where the common law is uncertain, or there is a gap in the law, courts should make decisions compatibly with the UK’s international obligations (DPP v Jones [1999] 3 WLR 625).  The Supreme Court in Nzolameso v City of Westminster [2015] UKSC 22 found that “Where Convention Rights under the Human Rights Act 1998 (HRA) are engaged, it is well established that they have to be interpreted and applied consistently with international human right standards, including the UNCRC” (para 29). However, the Court went on to acknowledge that the question of whether where no Convention right is involved, national policy should nevertheless be construed consistently with the international legal obligations of the UK. As a result, where a clear link between an internationally protected right is found in conflict with a domestic legislation or policy, the obligations of the UK must be interpreted in line with international law. However, where the link is less clear so too is the process of interpretation.

 

The approach is not without controversy however and a divergence in practice can be observed. In R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55 the House of Lords held that the system of checking Roma people at Prague airport who were travelling to the UK was inherently racially discriminatory. It was taken for granted that international law (e.g. the Universal Declaration of Human Rights and the International Convention on the Elimination of Racial Discrimination) applied to the statutory power in question. It was held that the practice was unlawful under UK legislation and under both customary international law and treaties. Yet in R (SG and Others) v Secretary of State for Work and Pensions [2015] UKSC 16, the Supreme Court considered an HRA challenge to the benefit cap and held that the discriminatory impact of the scheme upon lone parents (and therefore women) could be justified (by 3-2, Lord Reed giving the leading judgement and Lady Hale and Lord Kerr dissenting). The appellants argued that the UNCRC was relevant to the application of the ECHR but Lord Reed found that it is “firmly established that the UK courts cannot interpret or apply treaties to which Parliament has not given effect.” However, this judgment did not take into account R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55 and has received criticism.

 

This approach applies to treaties but what about the Compact, which is not a treaty? The political commitment of states includes Paragraph 15(f): “The Global Compact is based on international human rights law and upholds the principles of non-regression and non-discrimination. By implementing the Global Compact, we ensure effective respect for and protection and fulfilment of the human rights of all migrants regardless of their migration status, across all stages of the migration cycle. We also reaffirm the commitment to eliminate all forms of discrimination, including racism, xenophobia and intolerance, against migrants and their families.” As a political commitment based on existing international human rights obligations, states should assess all projects for new laws, rules or practice guidance which relate to migration to ensure that they are consistent with the political commitments of the Compact. This assessment should be explicitly outlined in the explanatory memoranda of legislation, rules and be expressly stated in guidance.  This will make the UK’s political commitment to the Compact visible in national law and ensure that careful consideration is given to it.

 

The Compact is an invaluable tool for all States as it has the capacity to clarify and elucidate the detail of a State’s obligations in relation to migrants. For example, in the UK a comprehensive legal framework on immigration law is lacking; this instability and lack of foreseeability of the law makes it difficult to hold the State accountable for infringements due to the lack of transparency and coherence. The Compact is a ‘toolbox’ of objectives and commitments that can be used to interpret the UK’s obligations, providing for greater foreseeability and legal certainty regarding how a State should treat migrants. The principle of legal certainty means that all laws enacted in the UK must be applied in a precise and predictable manner. To comply with this requirement, immigration law must be law, must be transparent, must be stable and, therefore, foreseeable. Where this fails, as it occasionally does in the UK, the Compact can fill the gap regarding what the State is obligated to do.

 

4. Conclusion

 

The Compact is a cooperative framework that consolidates existing human rights obligations and iterates the principle of non-regression and non-discrimination which are legally binding on those States that have ratified the relevant treaties. Signing the Compact does not bring any new obligations into the remit of a State, but makes explicit the obligations inherent within the human rights framework, to which they are already bound, as they relate to migrants. Further, while the Compact explicitly acknowledges that it is not legally binding, it is politically binding. It provides evidence of the political intentions of the State; the commitments they have made at the international level and the frameworks they have agreed to work within. As such, it can be used to interpret the international obligations of a State and the compliance of their actions and legislation with those obligations.

 

Despite the controversies that must be kept in mind in the specific contexts of each case, the Compact has a role at the national level. The Compact contains an aggregate of binding and non-binding commitments and objectives that the UK, having endorsed the Compact, will have an obligation to work towards. This should be made express in all legislation proposed and adopted since the signing of the Compact. This will simplify the interpretation of domestic legislation consistent with the UK’s obligations. It will encourage practitioners and judges to make reference to the contents of the Compact when considering the application of national law and practice.

 

 

For further details: the Immigration Law Practitioners Association (ILPA) is developing a Handbook for Practitioners outlining the domestic implications of the Compact for UK immigration cases.

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