The UN Global Compacts and the Common European Asylum System: Coherence or Friction?

Abstract

This paper examines the “protective potential” of the Global Compacts on Refugees and Migrants vis à vis existing commitments to fundamental rights within the European Union (EU). The relationship between the two normative frameworks is scrutinised to establish the extent to which the two might be mutually supportive or contradictory, since this determines the Compacts’ capacity to inform the interpretation of EU fundamental rights within the Common European Asylum System (CEAS). This paper explores this protective potential through three of the Compacts’ key guiding principles: respect for human rights and the rule of law, the principle of non-regression, and the principle of non-discrimination. The Compacts’ commitments to the first two are presented as sites of coherence where the Compacts concretely express pre-existing protections within EU law and provide a blueprint for implementation in the migration sphere. However, the Compacts’ principle of non-discrimination reveals an area of friction with EU primary law. It is argued that the implementation of this principle can address the inherently discriminatory system underpinning EU law. Within the EU, rather than undermining international and national human rights obligations, the Compacts present an opportunity to refine the implementation of existing EU fundamental rights obligations applicable to migrants and refugees.

1. Introduction

The Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) were adopted in December 2018 by the United Nations (UN) General Assembly.1 This article proposes a reading of the two Compacts as instruments that operationalise and contextualise existing State obligations in the migration context. In so doing, it examines the Compacts’ potential to effect improved rights protection for migrants and refugees within the European Union (EU), given the European Union’s own legal framework that includes the Common European Asylum System (CEAS). This is not a question of conceiving the Compacts as a binding Treaty or not; there is agreement that the Compacts’ commitments are not about creating new obligations (Guild and Weiland 2019; Chetail 2020; Gammeltoft-Hansen et al. 2017). Instead, our research focusses on the complementarity of the Compacts with pre-existing legal frameworks in refugee and human rights law, and their role in improving respect for the rights of refugees and migrants (Guild 2019; Guild et al. 2017, 2019). They can be used by the EU both as an internationally endorsed aid to the interpretation and implementation of existing international human rights and as a new tool in EU development law. The EU’s submission to the first regional review of the GCM in the European region specifies that the European Union, through the work of the European External Action Service and the European Commission, “has been contributing to the implementation of the [GCM] objectives” including through “support for actions in and outside Europe to […] protect the human rights of all migrants with particular attention to children and the most vulnerable groups” (EEAS 2020). In exercising its functions in the field of development cooperation, the European Union is already bound to comply “with the commitments and take account of the objectives they have approved in the [UN] context”.2

Indeed, the Compacts are founded upon the refugee protection regime and human rights law obligations.3 The fact that the Compacts are embedded in these two international legal frameworks means that they have the potential to operationalise these pre-existing legally binding obligations at the national and regional levels, including through the migration and asylum law of the EU. Coming from this understanding of the Compacts, this article examines how these instruments align with what already exists in the EU to establish the potential for the Compacts to inform the interpretation of EU law and the implementation of policy and practice. Since its creation, the EU legal order has existed as an autonomous legal framework.4 However, this framework is nonetheless shaped by the European Union and its twenty-seven Member States’ commitments to, and obligations under, international law, including refugee and human rights law. The expression of these obligations, as seen in the development of the asylum and migration acquis, means that ever since the European Union exercised its competence to enact legislation in the area, Member States’ action towards migrants and refugees must conform with their EU law obligations. As such, an assessment of the EU legal order’s receptiveness to the Global Compacts’ commitments can illustrate the extent to which these instruments complement pre-existing legal sources and can result in improved rights protection for migrants and refugees, particularly by fleshing out the content of these obligations in a migration-specific context.

The Compacts have been negotiated and adopted under the UN’s Sustainable Development Goals (SDGs)—Goal 10(7). As the Commission’s Legal Service has explained, Article 210 Treaty on the Functioning of the European Union (TFEU) requires the European Union and the Member States to coordinate their actions on development policy (Commission Legal Service 2019).5 In the New European Consensus on Development,6 the multiple aspects of migration and forced displacement are agreed as development policy with specific reference to the Global Compacts. As the Legal Service argues, there is extensive case law requiring the European Union to consider the objectives of development policy when implementing measures affecting developing countries. As a result, it concludes that the GCM has legal effects for European Union development policy.7 This means that, according to the Legal Service, the GCM is an integral part of European Union positions in development cooperation as the GCM participates in the European Union’s legal framework. Our argument regarding the impact of the GCM on EU law goes in a slightly different direction, aligning it with that of EU migration and asylum law. As the Legal Service proposed regarding development policy, we claim that in respect of EU law in migration and asylum, EU law and policy must be compatible with the GCM objectives, not only based on the principle of loyal cooperation (Article 4(3) Treaty on European Union (TEU)) as proposed by the Legal Service regarding development cooperation), but also as the most recent definitive clarification of the meaning of existing human rights conventions as they apply to migrants. Human rights standards are an inherent part of EU development policy which is an integral part of EU law. The impact of the GCM on one field of EU law is directly relevant to its legal effect in other areas, including migration and asylum.

EU competence was extended to migration and asylum in 1999, when a revision of the treaties took place. A specific commitment was written into the Treaty requiring compliance with the principle of non-refoulement, the Refugee Convention, and other relevant treaties (now contained in TFEU Article 78(1)).8 The EU legislator implemented the competence regarding asylum in the Common European Asylum System (CEAS)—a set of secondary EU legislation adopted from 2003 onwards, revised in the early 2010s and currently under revision again.9 This secondary legislation currently establishes minimum standards but with the objective of achieving common standards. In 2000, the EU adopted the EU Charter of Fundamental Rights (EUCFR), which was given full legal effect and equivalence to the EU Treaties in 2009 on the last revision of the treaties.10 The Charter includes a right to asylum with due respect for the rules of the Refugee Convention (Article 18 EUCFR) and an explicit prohibition of refoulement (Article 19 EUCFR). Furthermore, regarding migration, the TEU states that the European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities (Article 2 TEU).11 This is augmented by Article 6(3) TEU, which confirms that fundamental rights, as enshrined in the European Convention on Human Rights (ECHR), are general principles of EU law. It is reflected in the Charter where Article 1 commences with the entitlement to human dignity. The full impact of the Charter in the Area of Freedom, Security and Justice, of which the CEAS and migration form a part, has been well examined elsewhere (Sánchez and Pascual 2021). Thus, the application of the guiding principles of the Compacts—human rights including the rule of law, non-discrimination and non-regression—fit easily into the EU treaty framework The Compacts, as instruments adopted after the relevant treaty changes and endorsed by the EU and most EU Member States, need to be taken into account in the interpretation and implementation of the CEAS and EU migration law in order to ensure the coherence of EU fundamental rights law with its international counterpart.

This contribution examines three key elements of the Compacts: human rights and the rule of law, the principle of non-regression, and the principle of non-discrimination. These elements are presented among the “cross-cutting and interdependent guiding principles”, which the international community has agreed should form the foundation of the Compact’s aims and objectives.12 This article argues that in the EU’s fundamental rights framework, the emphasis on the rule of law (Art. 2 TFEU) and the principle of non-regression13 are already embedded within the EU constitutional setup as obligations under EU law. As such, these points of coherence between the two frameworks result in a considerable protective potential for the Compacts within EU law. This coherence can ensure that these overarching principles are applied, in the context of migration, in line with international commitments.

At the same time, the prohibition of discrimination on the basis of migration status which is espoused in the Compacts, primarily the GCM, emerges as a site of friction between the Compacts and the EU legal order. Despite a commitment to non-discrimination on enumerated grounds in primary law, the EU migration and asylum acquis is constituted along a structural principle that permits and creates the differential treatment of third-country nationals in their access to rights, based on their migration status. Although non-discrimination based on nationality in EU law is limited in scope to EU nationals (and their family members), the Compacts take a wider approach, calling for application regardless of migration status. As discussed below, this approach has been at least partially adopted by the European Court of Human Rights (ECtHR). Here, extant EU law stands out as fundamentally inconsistent with the Compacts’ commitments. At the same time, despite this apparent irreconcilability, the Compacts’ status as instruments that express the contemporary commitment to the rights of migrants and refugees can act to prompt a reconsideration of this stance. They call into question the continued legitimacy of the failure to apply the principle of non-discrimination on the basis of migratory status across the different categories of third-country nationals, in respect of which the EU legislator has exercised competence.

This paper proceeds as follows. Following these introductory remarks, Section 2 identifies the areas of coherence between the Global Compacts and the EU legal order and focuses on the role played by respect for human rights and the rule of law, together with the principle of non-regression, in shaping the EU legal order. In so doing, it examines how the expression of these principles within EU law facilitates the possibility that the Compacts’ detail informs the interpretation and implementation of the relevant obligation at the EU level and enhances existing levels of protection. In contrast, Section 3 engages with the Compacts’ presentation of non-discrimination on the basis of migration status as impermissible and how this runs counter to the understanding of the principle embedded in the structure of the EU legal order. It explores how the differential treatment of third-country nationals (as aliens are called in EU law) appears inbuilt in the EU’s structural framework, which limits the possibility of the Compacts imparting a protective effect. Nonetheless, it argues that the Compacts can provide a principled basis for re-evaluating the exclusion of third-country nationals from basic rights within the EU, in particular, through a wide interpretation of equal treatment provisions in secondary legislation. A concluding section integrates these strands of analysis.

2. Coherence between the Global Compacts and the EU: Respect for Human Rights, the Rule of Law, and Non-Regression

As noted above, the Compacts do not impose binding legal obligations on the EU but are well-placed to provide additional interpretative value to migration-specific contexts. This role is facilitated in areas where EU law and the Compacts overlap in their understanding of the key principles guiding their implementation (with specific impact on development policy). This section reflects how the Compacts’ commitments to respect for human rights, the rule of law, and the principle of non-regression are already present within the EU legal order at the level of primary law, thereby providing fertile ground for the Compacts to enhance the meaning of obligations in the migration and asylum obligations expressed through the CEAS.

2.1. Respect for Human Rights and the Rule of Law

The two Global Compacts are both founded in the UN body of international human rights instruments, commencing with the Universal Declaration of Human Rights (UDHR), notwithstanding their incorporation into the Sustainable Development Goals 2030. The GCR commences with reference to the UN Charter and the commitment to cooperation among states in the context of their faithful implementation of the Refugee Convention (paras. 2 and 5). It also refers to regional instruments which complement the Refugee Convention, including through more general human rights duties (para. 5). The GCM is even clearer about its relationship with human rights. Its first paragraph confirms that it rests on the UDHR and references the full range of UN human rights conventions adopted to give the UDHR commitments convention status. It states that it is based on a set of cross-cutting and interdependent guiding principles which include respect for human rights and rule of law (para. 15). As part of the GCM’s commitment to human rights, it confirms that it upholds the principles of non-discrimination and non-regression (which will be dealt with later in this paper) and aims to ensure effective respect, protection, and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle (para. 15, indent 6).

As noted earlier, the EU is no stranger to human rights, with human and fundamental rights being central to the EU’s legal structure.14 The long history of the EU’s gradual incorporation of human rights into its legal order has been well described elsewhere (Peers et al. 2021; Guild and Lesieur 1998). The EU’s language of rights includes both human rights (the UN and Council of Europe’s terminology) and fundamental rights (EU formulation), in part to accommodate more rights in the Charter than those which appear in many human rights conventions (De Búrca 2013, pp. 168–84). Its constituting treaties now include references to fundamental rights and an express reference to the Refugee Convention. More recently, the EU has signed UN human rights treaties, commencing with the Disability Convention.15

The protection of human rights is a key component of a system founded upon the rule of law. Rule of law features in the GCR (para. 9), where States undertake to uphold the UN Charter as well as rule of law at the national and international levels (thereafter, there are no further references to rule of law). In the GCM, rule of law and due process are part of the cross-cutting principles (para. 15, indent 4). It recognises that rule of law and due process as well as access to justice are fundamental to all aspects of migration governance. States commit to ensuring that not only their authorities, but all public and private entities and natural persons, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. This is quite a developed definition of the essential elements of rule of law for an instrument such as the GCM to contain.16 It is perhaps a response to the widely existing problem of inadequate legal protection for migrants and limited or non-existent access to justice. For two Compacts which expressly state that they are non-legally binding (para. 4 GCR, para. 7 GCM), this is quite an ambitious legal framework within which the political commitment of the Compacts is defined.

As an organisation, the EU is a structure based on the rule of law. Unlike states which adopt constitutions to crystallise the relationship of the people and the state and confirm the existence of the state (Von Bogdandy 2008, p. 397), the EU was conjured into existence exclusively by treaties in the 1950s. The Treaty on European Union states in Article 2 that it is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. There has been substantial academic work on the meaning of rule of law in the EU, as well as interpretation by the Court of Justice of the European Union (CJEU) (Pech 2009; Konstadinides 2017; Bárd and Van Ballegooij 2018, pp. 353–65). Much like the Compacts’ reference to the rule of law as requiring the public promulgation of laws, their equal enforcement and independent adjudication, the EU’s institutional set up, legislative process, and judicial oversight illustrate a similar understanding of the principle. As the European Commission’s assessment of the upholding of the rule of law in the EU and its Member States makes clear, despite the diverse legal systems and traditions, “the core meaning of the rule of law is the same across the EU” (European Commission 2021, p. 1). It includes respect for the key principles of “legality, legal certainty, prohibition of the arbitrary exercise of executive power, effective judicial protection by independent and impartial courts respecting fundamental rights in full, the separation of powers, permanent subjection of all public authorities to established laws and procedures, and equality before the law” (European Commission 2021, pp. 1, 7). In upholding the rule of law, Member States must comply with EU law and the principle of the primacy of EU law, upon which the European Union is founded.17

For the EU’s asylum and migration framework, respect for human rights and the rule of law are indispensable. Just as the Compacts are embedded in pre-existing human rights obligations, the CEAS does not exist in abstraction; its implementation must be in line with the broader fundamental rights obligations that accrue within EU law. This includes the Charter, which largely mirrors the principles of the Compacts in that it obliges the CEAS to be in line with the Refugee Convention, embraces the commitment to the rule of law, and respect for human rights. There is also room for the role of non-regression, particularly with the more recent CJEU rulings and for promoting the principle of non-discrimination in the migration space.

2.2. Non-Regression, the Compacts, the EU and the CEAS

The GCM’s rootedness in international human rights and refugee law obligations and the rule of law is supplemented by its explicit commitment to upholding the principles of non-regression and non-discrimination.18 The principle of non-regression, also referred to as non-retrogression within international human rights law,19 acts to ensure that existing levels of protection are maintained once an instrument comes into force. As such, the GCM’s basis in non-regression “resembles a standstill provision where the law at the time of the entry into force of the commitment must be maintained or changed only in the direction of the political commitment which has been undertaken”.20 It follows that, in cases where States have pre-established higher levels of protection than that prescribed by an instrument, they cannot reduce those protections without expressly contradicting their commitment to non-regression. Moreover, once committed to non-regression, States should not undermine these higher levels of protection. Accordingly, States’ commitment to uphold the principle of non-regression in the migration context operates as a prohibition on the adoption of retrogressive actions. States with higher standards in place than the relevant instrument, in this case the GCM, undertake not to lower extant standards of protection. This principle also applies to the EU, for instance, when revisiting the CEAS.

Prior to its inclusion in the GCM, the non-regression principle had already been recognised within international environmental law (Alegre 2018), and in the context of the protection of socio-economic rights, a place where it is expressed as the prohibition of retrogressive measures.21 In environmental law, this may be viewed as “a negative obligation inherent in all positive obligations associated with fundamental rights” (Collins 2020). In the context of socio-economic rights, backwards steps are impermissible with respect to core obligations, which include, for example, the provision of primary and emergency healthcare.22 The possibility of States taking retrogressive steps with respect to other non-core obligations is contemplated only in specific circumstances which must be justified by the State Party.23

The principle of non-regression is not novel to the EU law framework either. Within the EU framework, the CJEU has explored standstill provisions in relation to the EEC–Turkey Association Agreement (Gutmann 2016), where it has highlighted how they act to freeze existing restrictions (if any) in time and ban the introduction of new, more restrictive restrictions.24 Moreover, non-regression clauses have long been articulated within employment-law-related secondary EU law instruments, which specify that the directive in question must not be used to justify reducing “the general level of protection afforded to workers” within the instrument’s scope.25 Granted, the clauses in EU social legislation and the CJEU’s restrictive interpretation thereof focused on establishing a limited rule that does not encompass a comprehensive “standstill” clause which rules out lowering standards in connection with the Directive’s implementation.26 This led Peers to brand them as “entirely, or very nearly entirely, ineffective” (Peers 2010, pp. 436, 439). However, the same cannot be said of the importance accorded to non-regression in the fundamental rights context at the level of EU primary law.

The EU’s fundamental rights architecture can already be said to incorporate a principle of non-regression, by pegging the substantive scope of EU fundamental rights against those of the ECHR. Article 52(3) EUCFR provides that Charter rights corresponding to rights protected by the ECHR must have the same scope and meaning, as interpreted by the ECtHR, and provide for an equivalent level of protection.27 This standard is a minimum floor of protection that does not prevent EU law from “providing more extensive protection”.28 In addition, Article 53 EUCFR presents the Charter as a source of “better protection of fundamental rights within the scope of operation of the [EU] (…) [which] does not seek to displace existing protection of fundamental rights”; at a minimum, these must meet ECHR standards and those international agreements to which the EU is a party (de Witte 2019, p. 74). This is accompanied by the qualification that nothing in the Charter must restrict or adversely affect existing levels of fundamental rights protection provided by EU law, international law, and international agreements upon its entry into force. The provision establishes a minimum level of protection that incorporates human rights obligations originally conceived outside of EU law. Although in Melloni, this was interpreted to mean that higher levels of national fundamental rights protection than those established by the Charter are only permissible provided they do not affect the primacy, unity and effectiveness of EU law, the same restriction may not be as easily imposed on ECHR rights which are explicitly linked to the determination of the level of Charter rights protection.29 In their opinion in FMS, Advocate General Pikamäe argues that the absence of the ECHR’s formal incorporation in the EU legal order means that the consistency sought by Article 52(3) EUCFR “cannot adversely affect the autonomy of EU law and that of the [CJEU]” and the CJEU interprets Charter provisions “autonomously”. However, they acknowledge that even if the CJEU were to side-line ECtHR caselaw, this remains subject to the caveat that “its interpretation leads to a higher level of protection than that guaranteed by the ECHR”.30 To that end, it appears possible to speak of the EUCFR as providing an example of a principle of non-regression within EU primary law. Arguably, although not legally binding, Compact provisions on non-regression in the migration context can inform the interpretation of a non-regression obligation in the migration and asylum field.

This interpretation is enhanced by the CJEU’s explicit presentation of the principle of non-regression as a principle of EU law applicable to the EU values in Article 2 TEU, albeit specifically in the rule of law context.31 The term “rule of law backsliding” has been used to refer to the weakening of democratic institutions by elected authorities and the systemic breaches of judicial independence and other violations that have plagued multiple Member States in recent years,32 with additional criticism of the EU’s own commitment towards the rule of law (Kochenov 2015). It is in this context that recent developments in the CJEU’s jurisprudence indicate that the principle of non-regression is an important principle at the level of EU primary law. In Repubblika v Il-Prim Ministru ta’ Malta, the CJEU was called upon to determine whether the Maltese system for judicial appointments was consistent with the principle of effective judicial independence.33 Its ruling highlighted the existence of a principle of non-regression which is tied to the values enumerated in Article 2 TEU as EU foundational values; as such, an EU Member State which had freely and voluntarily acceded to the European Union “cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU”.34 In this scenario, the value of the rule of law meant Member States must “ensure that (…) any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary”.35 As Leloup, Kochenov, and Dimitrovs have pointed out, the assertion of an explicit principle of non-regression “marks a bold new step in the Court’s jurisprudence” (Leloup et al. 2021, pp. 700–1). However, it also builds upon earlier rulings in which it had emphasised the importance of adherence to EU values given Member States’ free and voluntary commitment thereto in acceding to the European Union.36

The recognition of a non-regression principle that is tied to the European Union’s values expressed in Article 2 TEU points towards the recognition of the same principle with respect to EU fundamental rights. This argument is foreshadowed by Kostakopoulos, who argues “for the formal recognition of the principle of non-regression in the EU legal order”, which is derived inter alia from a cumulative reading of the EU’s objectives (Article 3 TEU) and the Charter’s references to the preservation and development of common values (including fundamental rights) and its non-regressive clauses (as seen above) (Kostakopoulou 2021, p. 99).37 In light of the CJEU’s ruling in Repubblika with its emphasis on the non-regression of laws tied to the values in Article 2 TEU and of which fundamental rights form an explicit part, it would appear that it is justifiable to speak of an EU principle of non-regression with respect to fundamental rights and which forms a key principle of the EU legal order that goes beyond the need to ensure a consistent interpretation of EU law.

2.3. Implications of the Importance of Human Rights, Rule of Law, and Non-Regression for the CEAS

As can be seen from the case law of the CJEU, human rights arising from the Charter have been very important to the interpretation of the CEAS.38 Member States’ applications of the CEAS measures have been found flawed on fundamental rights grounds on numerous occasions. For instance, regarding reception conditions in Saciri, the CJEU held that Article 1 of the Charter, under which human dignity must be respected and protected, precludes the asylum seeker from being deprived, even for a temporary period of time, of the protection of the minimum reception standards.39 A human-rights-compliant interpretation of the CEAS has required considerable modification of Member State practice regarding the treatment of asylum seekers in particular.40 Regarding rule of law, it was the CJEU which found Hungarian border procedures which resulted in the detention of persons on the basis of their inability to meet their own needs and the absence of an entitlement to effective judicial protection against arbitrary detention unlawful.41 The need for effective judicial protection in respect of detention is a foundation of the rule of law.

Challenges to the rule of law further arise through the non-implementation of existing legislation, which can give rise to serious breaches of fundamental rights. After all, as Tsourdi argues, the implementation gap of existing EU law obligations towards migrants and refugees and the systemic violation of rights within the EU point towards “asylum (…) [as] one of the many faces of “rule of law backsliding” (Tsourdi 2021, pp. 497–97). Here, the acceptance of a principle of non-regression can be key to the CEAS, both in the implementation of existing obligations and in the development of the system. The recognition of non-regression as an obligation governing the CEAS would subordinate the development and implementation of new laws and policies at both EU and Member State level to heightened scrutiny on compliance with pre-existing levels of protection. The principle of non-regression in the GCM can strengthen the existing principle of non-regression of fundamental rights obligations within EU primary law through its explicit link and application to the migration and asylum acquis. Accordingly, a GCM-informed reading of the non-regression obligation in the case of fundamental rights law and policy towards migrants and refugees recognises an obligation to refrain from lowering existing standards of protection. This applies through the role of non-regression as an EU foundational value protected through Article 2 TEU and Charter provisions which, in turn, governs the application of the CEAS, as subordinated to the entire corpus of EU fundamental rights obligations.

Recognising this duty as applying to the EU institutions and the EU Member States would be particularly relevant at this moment in time, when the ongoing negotiations on the proposed Pact on Migration and Asylum have generated significant commentary on the extent to which the proposals risk lowering EU law protection standards for migrants and refugees.42 A commitment to non-regression entails assessing new legislation and policy against existing human rights obligations. This would further illustrate the capacity of the Compacts to augment, rather than undermine, the protection of the rights of migrants and refugees in the European sphere, and lay to rest concerns that they can be exploited by States to roll back on existing protections.

This framework of human rights and rule of law in the EU should provide a strong foundation for the two Compacts to be given legal effect within EU law. However, three EU Member States voted against the GCM at its adoption in the UN General Assembly in December 2018 (Gatti 2018), although no such defection was demonstrated at the adoption of the GCR in the same month (Boucher and Gördemann 2021, pp. 227–49). However, when the European Commission issued its New Pact for Migration and Asylum in September 2020,43 two years later, not a single reference was made to either Compact. Nor is any mention made to them in the numerous documents which accompany the Pact.44 Why this silence? The Commission itself had sought an exclusive negotiating mandate from the Council regarding the Compacts, of which the efforts were unsuccessful (Guild and Weatherhead 2018). Nonetheless, it was very active in the negotiations and strongly supported the conclusion (Diaz and Escarcena 2019, pp. 273–85). The Legal Service, as noted above, has advised that the GCM in an integral part of the EU positions in development cooperation because the GCM participates in the EU legal framework. However, when the Commission came to revising its migration and asylum law, it did not include any reference to the standards which it had been so keen to support only two years earlier.

3. Friction: Non-Discrimination, the Compacts and the CEAS

The principle of non-discrimination on the basis of migration status is an innovation within the Compacts that has the capacity to augment the protection of migrants seeking international protection and of refugees. It is identified as a key cross-cutting and interdependent guiding principle, and as will be discussed below, it is also expressed throughout the Compact in different objectives. However, this commitment represents a key area of friction with existing EU law and jurisprudence which, through relying on exceptions and restrictive interpretations of non-discrimination obligations, has permitted States to confirm their loyalty to non-discrimination whilst continuing to discriminate both against third-country nationals and amongst categories of third-country nationals.45

References to non-discrimination run throughout the Compacts, demonstrating its central position within them and wider human rights law. The GCR in paragraph 5 acknowledges its grounding in international human rights law.46 Paragraph 9 calls on States to “promote, respect, protect and fulfil human rights and fundamental freedoms for all;” and to end exploitation and abuse, as well as discrimination of any kind on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or disability. This aligns with the International Covenant on Civil and Political Rights (ICCPR) which has been interpreted to include immigration and nationality status within “other status” (De Schutter 2016, p. 62).47 Paragraph 84 requires that programmes and projects should be designed in a way that combats “all forms of discrimination and promote peaceful coexistence between refugee and host communities”. The GCR acknowledges the importance of non-discrimination for the durability and sustainability of protection in line with human rights law.

Non-discrimination is a guiding principle of the GCM, with paragraph 15(f) specifying that, in its implementation, States “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”.48 Furthermore, objective 17 aims to eradicate all forms of discrimination against migrants. It is underpinned by international legal obligations relating to non-discrimination.49 It focuses on eliminating discriminatory practises however they may manifest themselves, and condemns expressions and acts of racism and xenophobia. It acknowledges that, for non-discrimination to be eliminated, state policies must also be constructed so as to avoid directly or indirectly discriminating against migrants. Thus, discrimination must be addressed at all levels through a “whole of society” approach. The Compacts’ alignment with international human rights law commitments creates a framework that does not permit any exceptions or justifications for discrimination on grounds of nationality or immigration status. Once an individual is within the territory of a State, they must generally have equivalent access to human rights as nationals.50

The Compacts commit to end discrimination,51 and the GCM highlights the need to avoid discrimination on the ground of migratory status in particular.52 However, non-discrimination on grounds of nationality within the EU is a complex area. Article 18 TFEU prohibits discrimination on grounds of nationality, but that is limited to EU Member State nationality.53 Article 19 TFEU provides a competence to combat discrimination on the basis of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, which has been exercised and applies to all within the scope of EU law.54 As already alluded to, the ICCPR55 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)56 outline fundamental rights available to “all” persons, regardless of their legal status. Thus, arguably, under international human rights law, there is no permissible distinction between nationals and non-nationals due to the general applicability of human rights through the principle of non-discrimination.57 However, the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD), which sets the international standards regarding the prohibition of discrimination, includes Article 1(2), which permits distinction between citizens and non-citizens so long as it pursues a legitimate aim and is proportionate.58 This tension within the human rights framework permeates the EU legal order and creates friction with the Compacts’ commitment to non-discrimination.

Although some case law of the CJEU demonstrates the Court is willing to extend specific workers’ rights to third-country nationals,59 and Peers argues that discrimination between third-country nationals on the basis of nationality is also covered by the interaction of Articles 18 and 19 of the TFEU,60 the fundamental framework of EU primary law is constructed to permit differential treatment of third-country nationals. Friðriksdóttir argues that the “sectoral approach” of the common immigration policy entrenches this discrimination at the secondary law level, despite claims it is intended to promote fair treatment Friðriksdóttir (2017), n 67, pp. 4–5. This approach ensures that differential treatment is permitted through differentiating migratory status (Friðriksdóttir (2017), n 67, p. 328; Cholewinski 2014, p. 25).

Criticisms of the discrimination permitted within EU primary and secondary law are often rebutted through reference to the ECHR non-discrimination protections which are considered general principles of law binding on the European Union and Member States.61 Although not expressly stated in Article 14 ECHR, discrimination on the basis of nationality has been found to be unlawful by the ECtHR. Examples from this case law include the case of Gaygusuz v. Austria, where a nationality limitation on access to some social rights in Austria was found to be prohibited discrimination on the basis of nationality.62 However, this has only been applied in limited circumstances.63 This limited application of the prohibition of non-discrimination on grounds of nationality has reinforced a certain reluctance of some EU Member States to grant equal treatment to third-country nationals with their own nationals. However, the Compacts also call discrimination based on migration status between third-country nationals into question. Non-discrimination on the grounds of migration status not only in terms of integration, but also relating to access to a territory or to a labour market, is an innovation of the GCM that runs contrary to the practice of EU Member States and the jurisprudence of regional courts.64 The EU framework is utilised to enable EU Member States to commit to the right to non-discrimination, whilst utilising restrictive interpretations to continue to treat third-country nationals differently. This is so in three ways.

First, the ECtHR has outlined that “Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention”.65 As such, indirect differential practice is permitted so long as it has a legitimate aim and is deemed proportionate. This is not unusual for non-absolute human rights protections. However, the expansive understanding of a legitimate aim in regard to national security, the welfare of the State, and in the national interest means that discriminatory practice against third-country nationals is often permitted, despite claims by the Court that justifications must be “very weighty”.66

Second, Article 14 requires that discrimination occurs within the ambit of another provision of the Convention.67 Thus, it contains no substantive right such that it will only apply in conjunction with another right. Although the other right need not be breached, the applicant need only prove that the practise was discriminatory, which seriously limits its effectiveness (Ellis and Watson, EU Anti-Discrimination Law (2012) p. 13). In practise, the Court either fails to discuss the discrimination at all, instead focussing on the breach of the “primary right”,68 or the state argues that there is no primary right breach, and therefore, Article 14 is not applicable to the practice in question.69

Third, the ECtHR’s interpretation of Article 14 sets out that discrimination occurs whenever there is “a difference in the treatment of persons in analogous, or relevantly similar, situations (…) based on an identifiable characteristic”.70 For discrimination to be established, the applicant must first prove that they are in an analogous situation to someone else to whom the discriminatory practise has not applied, and this difference in treatment was due to a prohibited ground.71 This principle has also been found to require that people in different positions should be treated differently.72 This has been stretched to untenable lengths by some EU Member States, who argue that, due to the difference in position of refugees, beneficiaries of international protection, asylum seekers or migrants, and EU Member States nationals, their situations are not identical or nearly so, such that discrimination cannot be established.73 The ECtHR confirmed in the MA case that treating people with a different migratory status differently was not discrimination as their situations were not sufficiently similar. This returns to the sectoral approach within EU secondary law concerning immigration status and access to rights See Friðriksdóttir (2017), n 67, pp. 328–40. Through classifying access to rights for different migrant groups and status, the EU creates a system where differential treatment is justified because these groups are not analogous; thus, Article 14 is not applicable Friðriksdóttir (2017), n 67, p. 9. Despite obligations of non-discrimination in human rights and EU primary law throughout their legal frameworks, these protections are caveated on differentiation of nationality and migration status potentially permitting even direct discrimination on the basis of nationality.

The rather bleak picture, however, is tempered by the CJEU’s interpretation of some EU secondary migration law, for instance, the Single Permit Directive,74 where the Court maintained that discrimination against a migrant worker on the basis of the precariousness of her work and residence permit was contrary to the Article 12 right to equal treatment.75 This interpretation of an equal treatment provision has been extended to two other secondary law instruments,76 the long-term residents directive77 and blue card directive.78 This line of cases is favourable for a positive EU interpretation of the prohibition on discrimination on the basis of migration status, but is currently limited to a number of instruments.

From the European perspective, the Compacts’ commitment to end discrimination,79 together with the GCM-expressed duty to avoid discrimination based on migration status, present an area of considerable friction with both EU law and EU Member State practice. Articles 18 and 19 TFEU are utilised to embed discrimination against third-country nationals, although the sectoral approach to migration status justifies further differential treatment amongst this group. Conversely, the Compacts provide clear guidelines on the equality of treatment which refugees and migrants should receive regardless of migration status.80 To translate this into rights protection, it is necessary to link the commitments in the Compacts to the relevant existing EU obligations and read them through the lens of the Compacts. The commitment to non-discrimination on grounds of nationality or migratory status in both Compacts requires greater alignment with the commitments to non-discrimination, as discussed under the ICCPR. In line with the case law on discrimination on grounds of nationality, interpretation of Article 14 ECHR81, Member States need to provide “very weighty” justification for treating people with different migration status differently.82 In order for EU law to align with the commitments made in the GCM, the material scope of the prohibition on discrimination would need to eradicate all forms of discrimination against migrants with a tightly circumscribed exception for rights attached to citizenship, i.e., voting rights and holding public office. A Compact-compliant application of non-discrimination would ensure that migrants are entitled to the same human rights protections as everyone else.

4. Conclusions

An examination of the two Compacts’ guiding principles with the EU’s constitutional framework reveals much similarity between the two regimes. The rootedness of the Compacts in human rights obligations mirrors the EU’s commitment to fundamental rights protection which is expressed at the primary law level, such as through the Charter, its constitutive Treaties, and its relationship with the ECHR. Similarly, the Compacts’ commitment to the rule of law is reflected in EU primary and case law. Despite the issues with rule of law backsliding, the underlying legal framework and interpretation by the CJEU is holding EU Member States accountable to that legal order’s commitment to the principle and is robust.

In key respects, the Compacts’ guiding principles appear coherent with the EU legal order. The role played by fundamental rights, the rule of law, and the principle of non-regression within EU law enables the Compacts to play a role in the field of migration and asylum, since the latter are in harmony with key obligations within EU primary law. As instruments which articulate in considerable detail the actions States can take to respect, promote, and fulfil the rights of migrants and refugees, the interpretative detail contained therein can be used to flesh out obligations and move towards a more rights-compliant system. In the European context, the Global Compacts present an opportunity to refine the implementation of existing EU fundamental rights obligations as they apply towards migrants and refugees.

It is in the application of the non-discrimination principle that we see greater tension between the Compacts and the EU framework. The Compacts make clear that the human right to non-discrimination should apply irrespective of nationality or migration status, and that these are legitimate grounds for challenging differential treatment. Bringing this approach into EU law is far from straightforward, because non-discrimination on the basis of nationality is reserved for EU nationals, whereas for migrants, EU primary law calls for fair treatment, a term which is certainly not synonymous with non-discrimination.83 Only through EU secondary law, where equal treatment provision is expressly included, does there seem to be some progress towards non-discrimination on the basis of migration status. Even the interpretation of non-discrimination on the basis of nationality in the case law of the ECtHR has developed both slowly and very cautiously, starting with prohibitions on nationality exclusions from access to social benefits, it has more recently been applied to different family reunification rules depending on how the principals have acquired citizenship. This state of the law creates friction with the commitments found in the Compacts.