Pauline Melin, PhD, Lecturer in European Law (Maastricht University) and Researcher at the Institute for European Law (KULeuven)
The UN Global Compact for Safe, Orderly and Regular Migration is scheduled for approval at a conference in Marrakesh, aiming for adoption as a UN General Assembly Resolution in New York on December 19th, 2018. However, the political climate surrounding the Compact’s adoption has become contentious. Since Austria, an active participant in the negotiations, withdrew its support in late October 2018, multiple EU Member States have followed suit, publicly questioning or withdrawing their support every week. This wavering commitment from EU Member States contradicts the unified stance the Union delegation presented during negotiations. These internal divisions within the EU on the global stage raise concerns about its role in the Global Compact negotiations and the implications for Member States concerning the principle of sincere cooperation.
The EU’s Role in the Global Compact for Migration Negotiations
The journey toward the Global Compact began in September 2016 with the New York Declaration. In this declaration, 193 Heads of State and Government acknowledged the necessity of global collaboration on migration.
From the initial Zero Draft in February 2018 to the Final Draft in July 2018, the Global Compact consistently maintained its non-binding nature. It aimed to establish a cooperative framework built upon commitments made by Member States in the New York Declaration for Refugees and Migrants, explicitly stating its non-legally binding status.
The UN sought inclusivity in the negotiation process, inviting participation from all Member States, observer organizations, intergovernmental bodies, and other entities with standing invitations. The EU, as a regional group, held standing status, enabling its participation in negotiating and concluding the Global Compact.
Since the Global Compact is a non-legally binding agreement, the EU’s standard procedure for negotiating and concluding international agreements, outlined in Article 218 TFEU, did not apply (as per France v. Commission, para. 40). Instead, the EU participated by delivering Union delegation statements, which, according to the European Commission, were “EU coordinated statements” demonstrating a “unified EU approach.” However, this unified approach needs clarification. Since March 2018, Hungary has advocated for a different stance than the one presented by the Union delegation. Additionally, the Union delegation’s statements, made “on behalf of 27 Member States,” highlight Hungary’s exclusion from EU-coordinated statements.
The (Absence of a) Common Position
Although the Global Compact is not legally binding, the principles of conferral, institutional balance, and sincere cooperation remain crucial. The Court, in Council v. Commission concerning the Swiss MoU, determined that the Commission requires a Council Decision granting authorization before signing a non-binding instrument on behalf of the Union. In the Global Compact for Migration negotiations, the Commission referenced this case to justify its proposal for Council Decisions (later withdrawn) authorizing the signing of the Global Compact in Marrakesh.
However, unlike in Council v. Commission, the Commission seemingly lacked a clear negotiating mandate from the Council in this instance. In Council v. Commission, 2012 Council Conclusions authorized negotiations between the Swiss Confederation and the EU, outlining the content and designating the European Commission as the negotiator. The Commission believed it could sign the negotiated text based on Article 17(1) TFEU due to its alignment with the mandate (para. 35). However, the Court disagreed, stating that neither Article 17(1) TEU nor the negotiating mandate in the Council Conclusions were sufficient grounds for the Commission to sign without a specific Council Decision.
For the Global Compact for Migration, no Council Decision authorized the commencement of negotiations. The European Commission bases its negotiating position for the Union on two documents: the European Council Conclusions on Migration (October 2016) and the European Consensus on Development (2017). The European Council Conclusions merely welcomed the New York Declaration, while the European Consensus on Development stated that the EU and its Member States would actively support developing the UN Global Compacts on Migration and Refugees. While these documents suggest a desire for a common position, they do not designate the European Commission as the negotiator nor outline the content of this common position. Without a formal document confirming a unified stance, it is unclear whether Member States were obligated to refrain from contradicting the Union delegation’s statements.
The Starting Point of Sincere Cooperation
Based on the PFOS case, the principle of sincere cooperation, obligating Member States to support or at least refrain from contradicting the EU’s position, comes into play when a common position is established (para. 89). In this case, Sweden proposed listing PFOS in Annex A of the Stockholm Convention, while a Commission proposal for a Council Decision, authorizing the Commission to submit a list on behalf of the Union and Member States, did not include PFOS. The Court emphasized that sincere cooperation stems from the need for a unified representation of the Union (para. 73) and that a Commission proposal for authorization to negotiate a multilateral agreement signals the start of concerted action, even without Council adoption (para. 74). The Court clarified that a Council Decision establishing a common position wasn’t a prerequisite if “the content of that position can be established to the requisite legal standards” (para. 77). In PFOS, the Court found Council conclusions and minutes from the Working Party on International Environmental Issues meetings as sufficient evidence of an established common position that Member States should uphold. The Court cited another case regarding an agreement between the Council and Commission on coordination procedures for responsibilities and statements within the UN Food and Agriculture Organization (FAO) as the “requisite legal standards.”
Regarding the Global Compact for Migration, the “General Arrangements for EU Statements in multilateral organisations” could be considered the applicable legal standard. These Arrangements emphasize the importance of internal, consensual preparation for statements in sensitive areas within the EU’s competence, given the sensitivities and expectations of third parties. Therefore, a Council Decision may not be necessary, but internal discussions and consensus on a common position are. Due to the confidential nature of internal coordination, it’s impossible to verify if such coordination occurred regarding the Global Compact for Migration.
Conclusion
Internal coordination and a common position might exist, but the lack of evidence poses a problem when Member States express contradictory views. The European Commission’s unease with dissenting Member States is evident in the timing of its proposals for Council Decisions authorizing it to sign the Global Compact. These proposals were adopted in March 2018, while the Final Draft wasn’t agreed upon until July 2018. Without proof of a unified stance, the Commission struggles to ensure Member States adhere to the principle of sincere cooperation. However, it’s in the Commission’s best interest to prevent further fragmentation, as it undermines the EU’s credibility on the global stage. As non-binding international instruments gain prominence, this lack of unity will likely extend beyond the Global Compact’s approval. Therefore, establishing a clear legal framework for negotiating and concluding non-binding instruments is crucial.
Barnard & Peers: chapter 24, chapter 26
Photo credit: Steve Peers