The UN Global Compacts on Migration and Refugees, Sovereignty and the New Populist Far-Right Global Network of Cooperation

Much of the heated debate surrounding the Global Compacts on Migration and Refugees shows that populist politics and strategies are no longer only done within national borders. By trying to make exclusive nationalism, ethno-pluralism and unlimited sovereignty acceptable and effective political rationales again, populist parties organize themselves as transnational, far-right networks. Regarding the Global Compacts, this led to a situation where Europe had to give up its alleged unified commitment to these global agreements. In the long run, the nationalist backlash, pushed forward by populist far-right networks, will question the role of the EU as a reliable actor in global cooperation.

 

François Boucher, University Paris 1 – Panthéon Sorbonne

Johanna Gördemann, University of Duisburg-Essen

 

Up until recently there was no formal UN organization dealing with all aspects of international migration. However, the 2015 migrants and refugee crisis has prompted a new era of global governance of international migration. Indeed, in September 2016, in response to the crisis, the UN General Assembly adopted the New York Declaration for Refugees and Migrants. The Declaration expresses solidarity towards all migrants, recognizes their special vulnerability and carries the promise of a strengthened international cooperation for the protection of the rights of all migrants and asylum seekers.  It claims that contemporary large migration fluxes “call for global approaches and global solutions. No one State can manage such movements on its own”.

To materialize this call for greater international cooperation on all aspects of migration, the Declaration committed UN Member States to work towards the adoption of two Global Compacts, The Global Compact on Refugees (GCR), and The Global Compact for Safe, Orderly and Regular Migration (GCM). The former was adopted by the UN General Assembly on December 17, 2018, while the latter was adopted by UN member states at an intergovernmental conference in Marrakech, Morocco, on December 11, 2018, and was formally endorsed by the UN General Assembly on December 19, 2018.

Although neither the New York Declaration nor the two Compacts attracted a lot of attention from the media during the consultation phases leading to their adoption, the GCM, especially, appeared on the radar of international and national media, at first timidly, following the U.S. withdrawal from the negotiations of both Compacts, in December 2017. The Compacts attracted much more media attention in late 2018, when several European states, citizens and political parties, expressed worries that the Compacts may threaten national sovereignty by recognizing a human right to migration and by imposing migration policies designed by international institutions. Central to those debates were the voices of far-right organizations projecting an image of weakened EU states in need of regaining control and reaffirming the importance of borders and national self-determination. This lack of support coming from different EU Member States not only threatens the unity of the European Union. It questions the role of the EU as a reliable global actor in international politics and cooperation. While the supporters of the Compacts work towards a different kind of paradigm for thinking about migration management, Europe is still substantially divided regarding its own asylum and migration policies.

The sovereigntist critique of the GCM fits the general framework of nationalist opposition to international law and transnational governance. It claims that the more international institutions and networks are empowered, the less meaningful the nation states’ right to self-determination becomes. As the US Ambassador to the UN said while rejecting the Compact: “our decisions on immigration policies must always be made by Americans and Americans alone (…). We will decide how best to control our borders and who will be allowed to enter our country.”

Preserving sovereignty was the core reason given by the US to withdraw from the negotiations of the Compact and was central in the justifications given by European countries that voted against the pact, such as Hungary, Austria, Czech Republic and Poland. But it was also central in the opposition to the compact that emerged in countries that signed the GCM, even ones generally sympathetic towards migrants such as Belgium, France and Germany. In Belgium, for instance, members of the N-VA Flemish nationalist party stated that their “house of democracy is located in Brussels and not in Marrakesh” and claimed that signing the GCM would lead to a juridical jungle where the very vague objectives of the Compact will be misused by activist judges at the expense of national sovereignty and border control.

Hungary already pulled out during the negotiation process of the Compact in 2017, as Prime Minister Victor Órban questioned the EU´s mandate to negotiate the Compact on behalf of all of its 28 Member States, but it was Austrian Chancellor Sebastian Kurz who triggered the wave of withdrawals with his announcement to reject the GCM at the end of October 2018. Based upon a misguided interpretation of the 1951 Geneva Refugee Convention as being a purely humanitarian tool to protect some vulnerable individuals from political persecution that has been instrumentalized by EU directives to broaden the refugee status and to foster illegal migration, some Austrian politicians expressed concerns that the GCM might have the same potential of being turned from soft law into hard law – as the European Court of Justice, in their view, often pursues an ideological expansion of human rights.

Following Austria’s example, German right-wing populist party AFD argued not to trust the alleged legally non-binding nature of the GCM. The AFD highlighted the effect of soft international law and the risk of seeing the GCM becoming a normative point of reference slowly incorporated into national legal practice. Ironically, the AFD even appealed to the collective right to cultural self-determination of peoples to argue for the necessity of protecting German culture, which they claim is, due to mass immigration, particularly vulnerable and worthy of protection. Actually, this right is exclusively intended for indigenous populations and minorities to protect their traditional ways of life and therefore not applicable to the German population as a whole. This right is of relevance for states in which “ethnic, religious or linguistic minorities exist. (P)ersons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Furthermore, the argument put forward itself builds upon a human right, that is, obviously, part of a transnational and global system of rights that the AFD, in other respects, consequently denies because of the system´s presumed potential to weaken national sovereignty.

All of these reactions present themselves as local (national) answers to a cosmopolitan project pioneered by transnational elites coordinating their efforts to undemocratically set up coercive international institutions threatening to do away with the sovereignty of democratically elected national governments. Yet, this depiction of the opposition to the Global Compacts is misleading in several ways. First of all, those individual national reactions all partake into the current right-wing nativist Populist Zeitgeist (Mudde, 2004). All those apparently separated individual reactions actually share the same language and rhetorical strategies. All appeal to the interest of true, ordinary, and hard-working people into preserving the integrity of their national culture and all claim that this interest is threatened by globalist elites who do not understand ordinary citizens’ legitimate cultural anxieties (they allegedly only want more immigration because they want to drive wages down or they do not care about it as they inhabit wealthy neighborhoods unaffected by immigration). For instance, Marine Le Pen, leader of France’s far-right populist party Rassemblement National, claimed that the Compacts were the work of “contemptuous oligarchs”. Moreover, in an effort to avoid opposing the Global Compacts on overtly racist grounds, many proponents of the sovereignty argument claim that closing borders would actually protect diversity at a global scale on the alleged ground that immigration and multiculturalism in every country would reproduce everywhere the same kind of cosmopolitan melting-pot culture.

The similarity in the rhetorical maneuvers taken by the various protagonists of the current wave of anti-immigration right-wing populism is not a mere coincidence. It now appears that the far-right groups have launched a coordinated campaign throughout Europe to oppose the GCM starting in October 2018. Indeed, researchers have observed a sudden burst of social media activity related to the Global Compacts on far-right activists’ accounts in last October. This burst, including tweets, videos and online petitions, spread the view that the Global Compacts would impede national sovereignty and institutionalize a right to immigrate. It was spearheaded by right-wing social media political influencers and Youtubers such as Austrian Martin Sellner. What is striking about this campaign is that it shows a great level of transnational coordination between various far-right nationalist organizations and activists. This is not an isolate case, in recent years, researchers have already documented the global dimension of the new generation of far-right nativist nationalists and the extent of the cross-borders collaboration between local far-right nationalistic organisations in the digital era (see for instance this report from the ISD, the works of Ico Maly and of José Pedro Zúquete, all highlighting the global dimension of the new far-right anti-immigration nationalists). Such transnational cooperation includes convergence on shared online platforms, funding of activities, joint participation in various stunt operations (such as the ‘Defend Europe’ operation which included several social media activists from North America and Europe), information sharing, best practices sharing, coordination of social media raids, strategic planning, meme factoring, disinformation campaigns, mass trolling, automated communication on social media and various other techniques. This large-scale mobilization suddenly put the Global Compact on the news in fall 2018 while it was mostly uncontroversial and unheard of in mainstream media prior to that.  The campaign helped creating the misguided perception that the Global Compacts were legally binding international treatises that would consecrate an entirely new era in migration policy in which states would no longer be able to control their borders.

As the protagonists of this new populist far-right present themselves as the champions of national sovereignty engaged in a struggle against global elites depriving nations of the means to control their fate, it is important to stress how their discourse misrepresents international law and the Global Compacts while it conceals its own very nature in a vicious way.

First of all, the argument that the GCM will, just as several normative aspects of refugee law, suddenly turn from soft law into binding hard law is deeply mistaken. The protection of refugees, unlike the protection of migrants in general, is a matter of customary international law and has, due to that standing, always been a legal obligation for all of those countries that have ratified the 1951 Refugee Convention or the related 1967 Protocol. It is not humanitarian in character because it implies some legal core principle like, for example, the principle of non-refoulement, which requires states not to return refugees to a situation of risk. The argument also ignores the fact, that the Refugee Convention originally was designed to save the European project after World War II, as the continent was confronted with an overwhelming mass of refugees and stateless persons. By offering a status to these persons and also by reintegrating them into the state system, European nations were supposed to regain control over their sovereignty and to guarantee the common transnational peace project. What this shows is that, in the first place, events in Europe have been the reason for the creation of a refugee regime. Therefore, referring to a Convention, that initially was supposed to address the mass displacement within Europe after WW II, as being an instrument to threaten EU state´s sovereignty nowadays, seems to be inadequate.

Secondly, fears of loss of sovereignty and capacity to manage borders seem to be at odds with the spirit and the letter of the GCM. Indeed, it was clear from the start that the Compact was to be a non-legally binding document. This means that the Compact is not a binding international treaty backed by enforcement mechanisms; it is not a so-called ‘hard international law’ instrument such as the 1951 Refugee Convention or the 1966 International Covenant on Civil and Political Rights. For instance, all the provisions for the funding of international initiatives in the field of migration included in the GCM refer to voluntary donations (see GCM, §43).

Similarly, while the GCR reasserts the already recognized (and legally binding) obligation of non-refoulement, it creates no further obligation to share the burdens of refugee protection among states. The Compact does lay out the details of an international arrangement for the sharing of responsibilities to protect refugees (see GCR, §14-48). Yet, the key of this arrangement is the creation of a global forum for the coordination of the voluntary efforts to resettle refugees (through discretionary pledges – not mandatory quotas) and the sharing of financial resources (through discretionary contributions).

Moreover, the GCM lists ‘national sovereignty’ as one of its guiding principles and reasserts “the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law (…). Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact, taking into account different national realities, policies, priorities and requirements for entry, residence and work.” (see GCM, §7 and 15).

Inclusion of the notion of sovereignty in the GCM is not merely paying lip services to those nationalists skeptical about the intrinsic benefits of migration. Actually, the Global Compacts’ rationale is that greater cooperation in the field of migration enables individual states to better manage migratory flows. For instance, implementing institutional mechanism for resettlement and the sharing of resources can significantly help states neighboring refugees-sending countries to deal with sudden increase in asylum seekers crossing their borders. Just as the existence of the state does not reduce individual freedom, but rather expands it by providing individuals with stable and secure living conditions, so do international law and international cooperation provide states with more stable and predictable conditions facilitating the pursuit of their own development. Moreover, there is something silly when nationalists invoke national self-determination and sovereignty to oppose international law and UN states system, as sovereignty itself is a product of this very international order.

Last, but not least, one must appreciate the great irony and paradoxical nature of the nationalist backlash against the Global Compacts. Much of the new generation of far-right nationalists online activists embrace the large narrative of identitarianism claiming that European nations (and other Western countries) are threatened by the ethnic, cultural and religious diversification of their populations and that global liberal and left-leaning elites are preventing them from doing anything to counter this. While this new generation of nationalists complain about the influence of a transnational network of liberal elites, it conceals its very own nature as a large transnational network coordinating its actions and activism to influence the fate of various societies. Given the rise of right-wing populist parties all over the world in the last few years, it is hard to ignore the success of this global effort to steer politics at the local level. Moreover, while the protagonists of this transnational network present themselves as the champions of international cultural diversity, which they claim is undermined by the uniform multiculturalization of all societies, they conceal the very homogeneity of their own anti-immigration and anti-multiculturalism discourse and ideology.

 

François Boucher is a postdoctoral researcher in political philosophy at University Paris 1 – Panthéon Sorbonne. He can be contacted at Francois.Boucher@univ-paris1.fr.

Johanna Gördemann is a research fellow in political and legal philosophy at the University of Duisburg-Essen. She can be contacted at Johanna.goerdemann@uni-due.de.

 

 

The View from Germany: CEAS Reform and the Spectre of “Merkel’s Refugee Policy”

The German migration policy debate still widely assumes that Angela Merkel’s insistence on the primacy of European regulations over national laws is a position which strengthens migrants’ rights. But judging from the current state of the CEAS reform, this may no longer be the case. 

Therese Herrmann, University of Duisburg-Essen

One of the striking aspects of the ongoing German debate on migration policy three years from its crisis moment in 2015 is that the terms of the debate and the facts to which they refer have come so far apart that the debate can seem to chase ghosts. This month, Angela Merkel stepped down, after 18 years, as CDU party leader over her party’s slumping approval rates that many associate with a public dissatisfaction of her government’s handling of migration issues. But the ongoing political prominence of the migration policy debate not only ignores that the number of incoming asylum seekers in Germany is down below 2014 levels, it also seems to overlook that this is due to the ever stricter policies  Angela Merkel‘s coalition government introduced both at home and as part of a European executive.

But not just its right-wing contestants, Merkel‘s coalition government itself seems to regularly fail to capitalize on the effectiveness of its own stricter migration policies and the EU‘s executive policies Germany played a key part in devising. Instead of pointing to her government’s recent policies as examples of migrant deterrence, Merkel’s government has continuously emphasized both the need to regulate migration within a European framework of responsibility sharing and humanitarian duties towards refugees. But this is no longer in line with strengthening migrants’ rights, as many still assume. In the following, I want to share a few thoughts on (I) how the harmonization of European migration policy does no longer mean that migrants’ rights are strengthened, and (II) why the German public discourse still tends to assume it does.

(I) Let me start by looking back at Germany’s most prominent political debate on migration this year. Last June, Merkel withstood a prominent challenge by her right-wing conservative interior minister, Horst Seehofer, who argued that Germany had the right to unilaterally re-introduce border controls, so that asylum seekers already registered in another EU country could be pushed back before setting foot on German territory. Much of Seehofer’s argument drew on legal norms introduced into German migration law in the early 1990s, when the German legislator added an externalization clause to the right to asylum guaranteed by German Basic Law. The externalization clause held that only those asylum seekers could invoke the constitutional right to asylum who had not before passed a European Union member state or another third country which ratified the Geneva Convention and the 1967 New York Protocol. Merkel, by contrast, along with a sizeable number of German migration lawyers, pointed to the supremacy of EU law in migration matters, including when it comes to determining the member state responsible for processing an asylum request. She insisted that the Dublin regulations forbid push backs at inner-European borders, because they stipulate that no member state can unilaterally reject an asylum seeker at its border without establishing in each individual case – within a procedural framework guaranteeing the possibility of legal appeal – which other member state is positively responsible for her asylum petition.

As German public discourse erupted in a heated legal debate on the procedural requirements of the Dublin regulations and the relationship between national and EU law, it is worthwhile to note that the German chancellor did not simply dismiss her interior minister’s plan on the grounds of legality. Merkel’s bargain with the right-wing faction of her own party was to prove that a European solution would also be more effective in achieving Seehofer’s overall aim, reducing the number of asylum seekers crossing German borders. Merkel asked Seehofer to hold off an escalation to their conflict until she had discussed the matter at a European Council meeting at the end of June.

The “European solution” Merkel came home and, for the moment, managed to appease the right wing of her party with, had nearly nothing to say on Seehofer’s original problem, the procedural requirements of handling secondary migration inside the EU. It fully concentrated on declaring member states’ intention to cooperate in following the path laid out by the EU-Turkey statement of March 2016 and externalize both the reception of asylum seekers and the processing of their asylum requests to third countries. If Merkel’s European strategy did answer to Seehofer’s push-back test, it has only done so by re-interpreting Seehofer’s question in fully functional terms. As long as the absolute number of incoming asylum seekers is reduced, so it seems to claim, procedural questions will not be pressing. One reason why this strategy is questionable is that it implicitly risks further exaggerating the idea that undocumented migrants still exert significant pressure at German borders. In reality, the number of undocumented migrants registered at the South German border has been steeply declining.

Ironically, Merkel’s functional European approach also means that the European Commission is encouraged to further lower the standards at its external borders and will, as negotiations stand, take them below the levels Seehofer would have been able to point to in insisting on the applicability of Germany’s national laws. While the idea of setting up so-called transit centres at the Southern German border met with a relatively large opposition in the German public, notably from Merkel’s SPD coalition partner, the European Council’s plans to set up “controlled centres” and “disembarkation platforms” at Europe’s external borders have not been as widely criticized.

The irony lies in the implicit shift of normative perspective that has taken place. When Seehofer met with widespread criticism for justifying his push-back strategy on the basis of German legal norms that have been superseded by European law, many implicitly assumed that the European regulations were also more respecting of asylum seekers’ rights. But this no longer holds true. As part of the reform of the Common European Asylum System (CEAS), the European Council is currently working towards lowering standards in the Asylum Procedures Directive with the aim of enabling the externalization of asylum procedures to third countries, including states which, like Libya, only partially control their own territory, or, like both Turkey and Libya, have not ratified the Geneva Convention with regard to the refugees in question. If the reforms go through, then the requirements for externalizing asylum procedures to third countries outside of the EU will be lower than anything Seehofer could have implemented by pointing to the possibilities of externalization German law provides for. The externalization clause in German Basic Law, at the time of its introduction in 1993 a conservative political project aimed at deterring refugees fleeing from the civil wars in Ex-Yugoslavia, explicitly holds that asylum seekers can only be referred to those third countries that have ratified both the Geneva Convention and the 1967 New York Protocol. The EU’s new Asylum Procedures Directive will likely undercut it.

(II.) If what we see is indeed the German government pursuing an increasingly restrictive migration policy, why is it, then, that Merkel is still understood, and politically contested as, the pro-migrant chancellor? We might want to say it’s for a lack of alternatives. The political discourse has shifted so far to the right in recent years that the Merkel government’s emphasis on both European cooperation and humanitarian duties still represents the more liberal of the political options available. But, looking back at the Merkel-Seehofer controversy and its European solution, it is no longer clear whether the Europeanization of migrant policy is necessarily good news for migrant rights. And yet, we seem to have difficulties in grasping this. Public debate in Germany often assumes that European solidarity in migration policy also implies, at some point, the exercise of solidarity towards migrants.

Why would we make this assumption? Does it tell us something about the intransparency of EU level politics that Germany’s political public has hardly ever scrutinized CEAS reform? Perhaps. Have we been too complacent about European integration and its inclusive tendencies, ignoring that European integration is not an automatism, but whatever the sum of member states’ interests have made of it? In some areas, yes. Have we not been able to see that European cooperation in migration matters has, as legal scholars James Hathaway and Thomas Gammeltoft-Hansen call it, for most been “cooperative deterrence”, without an agenda to strengthen migrants’ rights?

All of the above apply. And still, looking at the way European legal integration has played out in the area of migration in the past decade, human rights advocates have had reason to be optimistic: European legal integration in migration matters seemed, on the whole, to be rights-generating for migrants. Take the Dublin Regulation as an example. Much like the third country partnerships the European Commission is currently negotiating, the Dublin Regulation had been conceived as a mechanism to inhibit secondary migration, allocating member states’ responsibility to process asylum petitions almost exclusively along the idea of first transit – and not, say, migrants’ preferences or a member state’s relative capacity to receive asylum seekers as measured by its economic performance. And yet, the fact that the Dublin Regulation established legally binding rules of responsibility sharing in processing asylum petitions meant that, for the first time, an EU member state could not unilaterally reject an asylum petition made at its borders without establishing which other member state is positively responsible for processing it.

Although not originally intended that way, the Dublin Regulation turned out to generate rights for migrants as it went through a number of legal contestations and specifications at the European Courts. By stipulating the procedures and time limits within which a member state must take charge of an asylum petition, they positivize within Europe what Hannah Arendt famously called the “right to have rights”, because they ensure that an asylum seeker on European territory will be able to exert her right to file an asylum petition somewhere. On top of that, they have also shown a potential to generate rights for asylum seekers with regard to the material conditions of their reception. From 2011 onwards, both the European Court of Human Rights and the European Court of Justice have ruled that member states must ensure in each individual case that proceeding according to the Dublin Regulation will not violate a migrant’s fundamental right to be free from torture and degrading treatment. The ruling led to a halt in Dublin deportations to Greece and, under specific conditions, a number of other Southern European countries – a circumstance that came to be a factor in the European migration crisis of 2015 – and encouraged expectations that the legal integration of European migration policy would lead permanently to an upwards harmonization of standards.

While the proceduralization of migrants’ rights in Europe has long been contrasted by EU level executive measures to step up border security in order to prevent migrants from reaching the jurisdiction of European courts, we now seem to see a different type of externalization strategy. European legal standards regarding third country partnerships are being harmonized downwards and may well come into conflict with higher standards set by national laws. If we, as a political public, are set on opposing right-wing nationalism by pointing to the normative benefits of European integration, we should pay attention to this process.

Therese Herrmann is a research fellow in Political and Legal Philosophy at the University of Duisburg-Essen. She can be contacted at therese.herrmann@uni-due.de.