Rule of Law and Human Mobility in the Age of the Global Compacts

Dear Colleagues,

The adoption of the international cooperation framework on cross-border migrations, the Global Compact Migration (GCM), has amplified political pressure on endorsing states to find and implement shared solutions to common challenges related to human mobility. At the same time, the Global Compact on Refugees (GCR) has added a new layer of soft and informal law-making to international refugee law. Both instruments depart from a fundamental assumption: the trade-off in the GCM and the GCR between the effectiveness of international cooperation and the compulsory nature of international instruments related to people on the move.

The shift toward informal solutions to be pursued through atypical, non-legally binding commitments—with uncertain legal effects—has been proposed and embraced with a view to reaching a vast consensus on sensitive matters, directly impinging upon the powers and prerogatives of sovereign states to control their borders and ensure respect for public order and national security.

However, the threats connected to the porous and volatile borders have amplified certain national countertrends, some of which have led to disaffecting migrants and refugees from their human rights during the migratory journey and before obtaining regular status. This has led to the proliferation of instances of discrimination and to new patterns of exclusion.

This disjuncture between constitutionally guaranteed access to rights and services on the one hand and national legislation on immigration and borders on the other has been enforced by opaque administrative practice. These include the watering down of the right to effective remedy for unwanted migrants and asylum seekers, excluding them from the actual enjoyment of their substantive rights and access to basic services, as well as informal containment arrangements, which infringe the right to leave any country and other human rights.

In this Special Issue, we discuss why obstacles to migrants accessing their substantive and procedural rights are not only a serious human rights issue, but also a threat to the rule of law, which hinders an effective global migration governance.

Thus, this Special Issue collects a group of articles addressing the normative, administrative, or judicial barriers impeding access to rights for migrants and refugees, regardless of their status. Against the backdrop, the articles investigate the formal and material impact of those barriers on the rule of law in the countries of destination, alongside their influence on the modes, scopes, and characteristics of their cooperation with countries of origin and transit. Building on these mapping efforts, the articles scrutinize whether the premise of “bundling” human rights, endorsed by the Global Compacts, coupled with the challenges of soft and informal law-making, will improve human rights protection and thus sustainable migration governance or whether it undermines the acquis of international human rights conventions and the national rule of law.

Special attention will be devoted to regional practices, especially at the European Union level, taking into account the prominent role played by EU cooperative models in shaping concepts and governance mechanisms envisaged by the Global Compacts.

With a view to sketching out the legal and policy innovations for how the Global Compacts’ implementation shall be better monitored, the Special Issue proposes the following lines of inquiry:

• First, the justiciability of the Global Compacts’ actionable commitments before domestic courts as a tool to enhance the judicial protection of migrants and refugees;
• Second, how the interplay between the Global Compacts and the human rights treaties is directly or indirectly affecting the protection of migrants and refugees;
• Third, the impact of the Global Compact for Migration on externalization, border management, and the contribution of regional experiences in framing their respective scopes;
• Fourth, data-driven and evidence-based migration policies as means to untie the migration discourse from political pressures and as a source for legitimizing decision making, including the role of digital technology in standardizing migration and asylum decisions;
• Fifth, the potential of non-discrimination as the backbone of the Global Compacts to ensure that basic services are provided to all migrants regardless of their status.

The articles in this Special Issue contribute to advancing the rule of law in migration governance, a theme which has gained more prominence with the resurgence of soft law tools with the advent of UN Compacts.

Dr. Marion Panizzon
Dr. Daniela Vitiello
Dr. Tamas Molnar
Guest Editors

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