Non-binding and therefore irrelevant? The Global Compact for Migration
| Date | 01 December 2020 |
| Published date | 01 December 2020 |
| DOI | 10.1177/0020702020975108 |
| Author | Tim Höflinger |
| Subject Matter | Policy Brief |
Policy Brief
International Journal
Non-binding and
2020, Vol. 75(4) 662–673
! The Author(s) 2020
therefore irrelevant?
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The Global Compact
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DOI: 10.1177/0020702020975108
for Migration
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Tim H€
oflinger
Department of Politics and International Studies, University
of Cambridge, Cambridge, United Kingdom
Abstract
One of the most debated and criticized characteristics of the Global Compact for Safe,
Orderly and Regular Migration (GCM) is its legally non-binding form. This article
analyzes the GCM’s legal form, mechanisms of effectiveness, and legitimacy and finds
that while the legal form of the GCM is important, the available mechanisms of effec-
tiveness and legitimacy are equally or, perhaps, more important factors to determine
the compact’s relevance and future impact. Although non-binding, the GCM does pos-
sess the relevance, capacities, and legitimacy to become a normative force in the field of
international migration governance. Compliance with its outlined commitments will,
however, be strongly dependent on the political will of the participating states. Perhaps
its key function will be to fill the existing gaps in hard law in global migration governance
by fostering cooperation and consolidating international obligations, standards, and
stakeholders of a crosscutting topic into one instrument.
Keywords
GCM, soft law, legitimacy, effectiveness, migration governance
Corresponding author:
Tim H€
oflinger, University of Cambridge, Department of Politics and International Studies, Alison Richard
Building 7 West Rd., Cambridge, CB2 1TN, United Kingdom of Great Britain and Northern Ireland.
Email: tim.hoeflinger@hsrw.org
H€oflinger
663
In the light of the intense influx of refugees into Europe and the global trend of
growing migration, country representatives met in September 2016 in the United
Nations General Assembly (UNGA) to adopt the New York Declaration for
Refugees and Migrants. This declaration initiated the two-year negotiation and
consultation phase for the adoption of the Global Compact for Safe, Orderly and
Regular Migration (GCM). The GCM was adopted by the UNGA in December
2018 with 152 votes in favour, 12 abstentions, and five rejections. According to its
preamble, the main vision of the GCM is the “enhanced cooperation on interna-
tional migration in all its dimensions.”1 In order to achieve this vision, the compact
defined 23 objectives, each containing a commitment, with corresponding actions
for implementation “. . . considered to be relevant policy instruments and best-
practices.”2 One of the, perhaps, most debated and criticized characteristics of
the GCM is its legal form. The GCM is not an international treaty, but a “legally
non-binding cooperative framework for international cooperation in migration”3
and, therefore, not imposing any novel legal obligations on states. In other words,
the GCM can be understood as a declaration of intent producing political obliga-
tions for states or soft law operating between politics and law.4
While there are certainly some strategic rationales for a non-binding resolution,
such as more flexibility for states, a higher number of signatories, and quicker
adoption, one naturally comes to question what relevance and impact such a
soft law really can have. From a purely hard law perspective, one could easily
denounce the GCM as an irrelevant instrument that has no influence over state
actions. This, however, would be a premature judgment ignoring the capabilities
and influence that soft laws can have. I argue that, despite being a non-binding
treaty, the GCM possesses the characteristics of a relevant international agree-
ment, resulting in normative force that could fill the existing gaps in hard law
within international migration governance. On the following pages, I seek to
underline this argument by analyzing three aspects of the GCM: legal form, mech-
anism of effectiveness, and legitimacy.
Legal form as a determinant for relevance and impact
Different than soft law, hard law usually signals a stronger commitment, is pre-
cisely worded, and includes a delegation of authority for implementation to legal
institutions. Nevertheless, binding treaties are not necessarily more effective or
relevant than soft law, as states constantly violate binding treaties, withdraw
1.
Global Compact for Safe, Orderly and Regular Migration, G.A. Res. 73/195, U.N. GAOR, 73rd
Sess., U.N. Doc. 73/195, at 2.
2.
Global Compact for Safe, Orderly and Regular Migration, G.A. Res. 73/195, U.N. GAOR, 73rd
Sess., U.N. Doc. 73/195, at 6.
3.
Global Compact for Safe, Orderly and Regular Migration, G.A. Res. 73/195, U.N. GAOR, 73rd
Sess., U.N. Doc. 73/195, at 3.
4.
Anne Peters, “The Global Compact for Migration: To sign or not to sign?” Blog of the European
Journal of International Law, 21 November 2018, https://www.ejiltalk.org/the-global-compact-for-
migration-to-sign-or-not-to-sign/ (accessed 28 August 2020).
664
International Journal 75(4)
from international laws, or remake laws to be consistent with their agendas.5 In the
same way that non-compliance with hard law alone does not make such laws
irrelevant or ineffective, soft law’s lack of legal enforcement does not automatically
render it as useless. Both soft law and hard law possess the capabilities to frame
international debates, put a heavy hand on state choices, and influence how states
think about their interests.6
While some single out the GCM’s legal form as a weakness, the compact does,
in fact, continue the trend of a growing use of soft law and other non-binding
instruments in international governance. Some of the most prominent and relevant
agreements within international governance today are soft laws. Consider, for
example, the Sustainable Development Goals (SDGs). They are legally non-
binding commitments but have shaped the international debate and governance
immensely. The SDG agenda is quite similar to the GCM, as it also bundles several
standards, commitments, and stakeholders of a crosscutting topic into one instru-
ment.7 Considering the high political tension and limited willingness for interna-
tional cooperation associated with migration, a non-binding agreement may be the
only tangible option as it seems unlikely that a legally binding framework for this
policy issue would be able to gain sufficient support to evolve into an effective tool.
Given the complexity and scope of migration, producing different challenges in
every country, a flexible but comprehensive approach is needed. International law
covers only some facets of migration, and several of the agreements suffer from
low ratification, such as the International Convention on the Protection of the
Rights of All Migrant Workers. The addresses all phases and aspects of migration
and, therefore, may be able to fill the gaps in hard law.
It is noteworthy that, while the GCM cannot be considered a legal text itself, the
underpinning human rights laws being referenced in the compact are binding
international law. If states, therefore, decide to not comply with the GCM’s com-
mitments, they cannot simply escape from all the obligations by not signing or
withdrawing from the compact, as they are most likely already bound to many of
the underpinning laws.8 In this context, it is noteworthy that soft law can also
reinforce and clarify pre-existing legal obligations. In this respect, the GCM’s
5.
Kenneth W. Abbott and Duncan Snidal, “Hard and soft law in international governance,”
International Organization 54, no. 3 (2000): 421–456; and Daniel Bodansky, “Legally binding versus
non-legally binding instruments,” Forthcoming in Scott Barrett, Carlo Carraro, and Jaime de Melo,
eds., Towards a Workable and Effective Climate Regime, VoxEU eBook (London: CEPR and
FERDI, 2015).
6.
Hedley Bull, The Anarchical Society:...
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