From migration crisis to migrants’ rights crisis: The centrality of sovereignty in the EU approach to the protection of migrants’ rights

Abstract

The long-simmering process of sidelining and side-stepping migrants’ rights protection while attempting to regulate cross-border movement of people was heated up by the 2015 migration crisis and has recently been brought to the boil with the crisis-fuelled adoption of the UN Global Compact for Safe, Orderly and Regular Migration (GCM) in 2018. The GCM represents an endorsement at the international level of soft-law, goal-setting frameworks for international co-operation on migration as it pertains to migrants’ rights, and a corresponding disavowal of any role for binding legal obligations in this field. Focusing on the EU, I argue in this article that states’ sovereign powers in the realm of control of non-EU migration have been largely undiluted by the development of the international system of human rights protection. I show how the 2015 migration crisis galvanized multilateral international co-operation on the part of the EU and its member states in the field of non-EU migration in a way that entrenched EU states’ sovereign self-interest by institutionalizing a soft-law approach, thereby producing a crisis from the perspective of migrants’ rights protection. I also argue, however, that the migration crisis facilitated a resurgence of state sovereignty in the EU to the detriment not only of migrants’ rights, but also of internal EU co-operation and co-ordination. Finally, I suggest that in times of crisis supranational courts are particularly susceptible to being recruited to EU states’ rights-restrictive approach to international migration.

1. Introduction

After briefly explaining the focus of the article in this Introduction, I move in Section 2 to place the 2015 migration crisis in the wider crisis context besetting the EU over the past 15 years and to argue that EU states’ sovereign powers of control of non-EU migration, largely undiluted by the international system of human rights protection, are buoyed in times of crisis. In Section 3 I argue that states’ human rights-avoidant approach to international migration is maintained partly through states’ tendency, firstly, to ignore multilateral treaties elaborated for the express purpose of protecting migrants’ rights and, secondly, to co-operate on the regulation of international migration and protection of migrants’ rights in informal venues that produce non-binding outcomes. This process of sidelining and side-stepping migrants’ rights protection while co-operating on cross-border movement of people was accelerated by the 2015 migration crisis and has recently reached its logical endpoint. The integration of migration into the Sustainable Development Agenda 2030¹ and the crisis-fuelled adoption of the UN Global Compact for Safe, Orderly and Regular Migration (GCM)² in 2018 amounts to what I have termed ‘the post-2015 migrant rights protection regime’,³ an unapologetic endorsement at the international level of soft-law, goal-setting frameworks for international regulation of migration and migrants’ rights protection, and a corresponding disavowal of any role for binding legal obligations in this field. I argue therefore that the migration crisis galvanized the EU and its member states to engage in multilateral international co-operation in the field of migration in a way that entrenches EU states’ sovereign self-interest by institutionalizing a soft-law approach, thereby producing a crisis from the perspective of migrants’ rights protection.⁴

In Section 4 I also show, however, how migration crisis may facilitate a resurgence of state sovereignty in the EU to the detriment not only of migrants’ rights, but also at the expense of internal EU co-operation, resulting in member states shirking their EU law obligations and in a lack of EU unity on the international stage. In Section 5, I broaden the inquiry of the impact of the migration crisis beyond soft law and internal EU co-operation to show how that crisis has seen supranational courts inveigled into diluting the obligations that are binding on European states in respect of international migrants. I argue here that states in Europe are essentially aided and abetted in their quest for retention of sovereign discretion in the realm of migration control by supranational courts that act to relieve states of their human rights duties vis-à-vis migrants, particularly in times of crisis. A central contention of the article is that the migration crisis has been instrumentalized by EU states to arrogate and exercise ever greater powers of migration control, often in defiance of legal obligations.⁵ While states’ dogged protection of their sovereign powers of migration control may either attenuate or amplify co-operation amongst states, its outcome when it comes to migrants points only in one direction, namely, that of a reduction in rights protection.

The EU regime on free movement of EU citizens is itself a form of international regulation of migration and I illustrate in Section 4 how this regulatory framework has been challenged by the turn to sovereignty occasioned by the 2015 migration crisis. It is, however, non-EU migrants, or international migrants to the EU who stand to lose most in the migrants’ rights crisis I identify in this article: mobile EU citizens enjoy a comparatively high standard of protection under EU law far beyond that afforded to international migrants by the minimum standards enshrined in international human rights treaties.⁶ EU citizens exercising their free movement rights within the EU will be little troubled in practical terms by a dilution in the standards of human rights protection for international migrants.

For the purposes of definitional and conceptual clarity, a number of further explanations are necessary. While the division between ‘refugee’ and ‘migrant’ is far from distinct in reality,⁷ with the GCM acknowledging that refugees and migrants are entitled to the same universal human rights and fundamental freedoms (GCM, paragraph 4), the differentiation between the categories of forced and voluntary migrant is deeply entrenched in international law, with each category being governed by separate legal frameworks. Those subjected to enforced migration may rely on the robust catalogue of rights codified in the Refugee Convention⁸ which has been incorporated into EU law and expanded upon by the various pieces of binding legislation that make up the Common European Asylum System. For so-called voluntary migrants, however, whether they move legally or via irregular means or channels, their ability to rely on the primary international human rights instrument elaborated for their protection is severely limited by the conspicuously small complement of states parties to that instrument, namely, the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UN ICRMW).⁹

Despite the formal enforced/voluntary dichotomy, it is the enforced migration-related crisis of 2015 that gave rise to developments contributing to what I characterize as a migrants’ rights crisis. I therefore discuss reactions to and consequences of the 2015 crisis, which largely concerned enforced migrants with legitimate claims to international protection,¹⁰ while focusing on the international law implications of that crisis for voluntary migrants who are often formally more vulnerable than individuals who may invoke the protection of international refugee law in the territory of states in which they seek refuge. It is important to underline that the distinction between these two categories of migrant and migration is in many respects fluid and overlapping, meaning that contraction of human rights protections for ‘voluntary’ migrants will also affect many people who seek protection under international refugee law. Individuals whose applications for international protection are denied often remain as irregular migrants in their destination state. Individuals migrating via irregular channels, whether they have legitimate protection needs under international refugee law or whether they are on the move in search of a better life, are indiscriminately subjected to the same deterrence practices developed by states in the Global North over recent decades.¹¹

Some of the arguments advanced in this article apply with equal force to non-EU states, such as the aversion to ratification of multilateral treaties focused on migrants’ rights protection and a preference for soft law as a mechanism for addressing migrants’ rights protection. My focus, however, is on the EU, an important migration destination that is at the same time the most closely integrated regional bloc with the most highly developed and complex system of human rights protection in the world. Whether other regions are experiencing the same resurgence of state sovereignty at the expense of migrants’ rights protection is beyond the scope of this article. The potential for rights dilution I highlight will, however, adversely affect international migrants beyond the European legal space.

2. State sovereignty and migration crisis

State sovereignty is a ‘highly malleable concept’¹² that may nonetheless be defined in broad terms as the right of states to do as they see fit on their own territory without interference from other states,¹³ including controlling human movement across their borders into their territory.¹⁴ In the aftermath of the Second World War the states of the international community, in an effort to underpin international peace and stability,¹⁵ entered into a multiplicity of agreements, international organizations and regional integration initiatives that significantly shifted the balance of their plenary competence¹⁶ from more to less. The partial cession of state sovereignty in the interests of international co-operation is particularly pronounced in the context of the EU. Member states have conferred powers on the EU, via the organization’s foundational treaties, to make supranational law that supersedes conflicting domestic legislation¹⁷ across a wide range of areas including movement of people across the Union’s constituent states and the entry and expulsion of non-EU citizens.¹⁸ Indeed, those treaties explicitly impose an obligation on member states of the EU to co-operate on migration, asylum and borders policy on the basis of the principle of solidarity and fair sharing of responsibility.¹⁹ This has led some commentators to identify in the EU project the beginning of a late or post-Westphalian era.²⁰

When it comes to international migration of people, however, the extent to which states have ceded their sovereign powers of migration control in practice is open to question. Arendt’s observation in 1951, that nowhere is sovereignty more absolute than in matters of emigration, naturalization, and expulsion,²¹ arguably still holds true today despite the advent of globalization and the development of the international human rights regime. Indeed, more than 50 years after Arendt’s diagnosis, Catherine Dauvergne memorably characterized states’ control of the movement of people as ‘the last bastion of sovereignty’,²² with governments responding to loss of control in realms such as economic policy, trade and military matters by flexing ever more vigorously their sovereign muscle in the migration control arena. Despite the constraints imposed on state sovereignty by the international human rights standards elaborated under the auspices of the UN from 1948 onwards,²³ the human rights claims of migrants often fall in the face of states’ sovereign exclusionary powers.²⁴ In the realm of international migration, migrants’ rights emerge as matters of secondary importance when they clash with states’ sovereign self-interest.²⁵ This is true even in the context of the EU, where states’ desire to have the final say on their treatment and reception of non-citizens has brought the Union to the brink of crisis.²⁶ The (lack of) EU co-operation on international migration over the past decade, both internally and externally, reveals the resilience of sovereignty and the fragility of EU co-operation on migration, particularly in times of crisis.

Even the most cursory review of the EU and international law scholarship produced in recent years in the English language suggests that we have been living through an era of multiple overlapping crises.²⁷ I use the term crisis in two distinct, but related senses. Firstly, to mean events that disrupt situations of stability and normality²⁸ and thereby result in an emergency²⁹ and, secondly, to mean events and developments that expose gaps and inadequacies in the law.³⁰ The crisis at the centre of this article is the 2015 migration crisis during which over a million migrants arrived by sea in the EU, primarily in Greece and Italy, with many of them subsequently making their way across Europe and the EU.³¹ While it may be plausibly argued that the characterization of this migration as a crisis is largely a construction of media and political discourse that serves political ends,³² it is nonetheless an event that disrupted normality and stability in the EU on a variety of fronts, as discussed in Section 4.

It is important to point out that the migration crisis does not exist in isolation from other crises, but instead feeds off and feeds into other crisis events. The migration crisis unveiled a solidarity crisis in the EU,³³ and was exacerbated by the earlier financial crisis, with Italy and Greece, the two countries at the frontline of migrant arrivals in 2015, amongst the states most ravaged by the Eurozone crisis and therefore all the more acutely lacking the capacity to adequately receive and process migrants arriving en masse. The migration crisis nourished much pro-Brexit debate and it feeds into the rule of law crisis, with member states flouting legal obligations in their desire to control their borders. International migrants are amongst the groups most adversely impacted by the fallout from the ongoing global health crisis and, looking to the near future, the climate crisis will also entail further migration crisis. These crises have produced a further as-yet undiagnosed crisis consisting in gaps and inadequacies in international law as it pertains to migrants’ rights protection. It is to this migrants’ rights crisis that I now turn.

3. International co-operation on migration and the protection of migrants’ rights: Soft law trumps treaties³⁴

There is abundant evidence of states’ reluctance to co-operate on international migration while being explicitly bound by human rights obligations and answerable to supranational supervision. Treaties elaborated for the primary and explicit purposes of protecting migrants’ rights secure strikingly low numbers of ratifications.³⁵ This is most egregiously illustrated by the fate of the 1990 ICRMW, a core international human rights instrument that puts in place a framework for international co-operation on migration while ensuring the protection of migrants’ rights.³⁶ The ICRMW, while significant for being the most comprehensive treaty in the field of international migration and human rights, has been beset by a singularly chequered ratification record. Following adoption by the UN General Assembly in 1990, the ICRMW lay dormant for nearly 13 years before entering into force in 2003, the longest wait from adoption to activation endured by any of the core UN human rights instruments.³⁷ Over 30 years after its adoption, it has been ratified by just 58 states, most of which are located in the Global South. By contrast, the UN Convention on the Rights of the Child (CRC),³⁸ adopted a year ahead of the ICRMW, entered into force less than 12 months after its adoption and currently has 196 states parties. Even the two most recent universal human rights instruments, namely, the conventions on the rights of persons with disabilities³⁹ and on protection against enforced disappearance,⁴⁰ quickly overtook the ratification record of the ICRMW after their adoption in 2006. It is particularly telling that no EU member state has yet ratified the ICRMW.⁴¹

When it comes to multilateral international co-operation on migration, states prefer the political arena⁴² and informal dialogue and voluntary, non-binding processes that avoid monitoring and oversight⁴³ and produce instead recommendations and best practice.⁴⁴ This sovereigntist affinity for vehicles that facilitate international co-operation on migration without imposing legal restrictions on states’ sovereign powers to control migration has recently been endorsed and institutionalized at the international level by a number of important developments, namely, the adoption in 2015 of the Sustainable Development Agenda 2030 and of the GCM in 2018 which indicate that states’ co-operation on migration is arguably slipping its mooring from binding international human rights law, a mooring which was in any case, as illustrated above, never particularly secure.

The Sustainable Development Agenda elaborates a framework for international co-operation to realize the human rights of all persons by 2030.⁴⁵ It represents the first time that explicit commitments on migration are integrated in the global development agenda⁴⁶ and commits the world’s states to ‘cooperate internationally to ensure safe, orderly and regular migration involving full respect for human rights and the humane treatment of migrants regardless of migration status’.⁴⁷ The Agenda expressly pledges to protect migrants’ rights in pursuit of two of the 17 Sustainable Development Goals (SDGs): ensuring decent work and reducing inequalities.⁴⁸ Indeed, most of the SDGs and their related targets are of direct relevance to migrants, even where their particular needs are not explicitly articulated.⁴⁹ Failure to realize goals such as gender equality and decent work for migrants means that the objective of the Agenda to achieve the SDGs ‘for all’ will not have been achieved.

A defining feature of Agenda 2030, which both underscores and facilitates the resilience of state sovereignty in the field of migration, is that it is essentially a goal-setting framework. However laudable the Agenda’s explicit commitments on migration and migrants’ rights might be, it is not possible to compel states to live up to those commitments or to take specific measures for their achievement. Unlike core UN human rights treaties which have dedicated bodies of independent experts who monitor the compliance of states parties with the treaties they have ratified, the review framework for implementation of the SDGs is essentially voluntary.⁵⁰ It is therefore perhaps unsurprising that in 2022 only 44 states conducted a Voluntary National Review, with just 41 countries signing up to conduct one in 2023.⁵¹ Dealing with migration in a ‘development setting’ may therefore serve to facilitate states in their efforts to ‘isolate their border and migration practices from the reach of international human rights law’.⁵²

The non-binding nature of Agenda 2030 is shared by a closely related document which, though anchored in the Sustainable Development Agenda, was borne of the 2015 migration crisis, like many of the immigration law developments discussed in this article. The events of 2015 served as a catalyst for the international community to come together in 2016 under the auspices of the UN to adopt the New York Declaration for Refugees and Migrants.⁵³ The Declaration articulated the commitment of the international community to protect people on the move, a commitment crystallized in the drafting of the GCM which was endorsed by the UN General Assembly in 2018.

Acclaimed by the UN itself as ‘the first-ever UN global agreement on a common approach to international migration in all its dimensions’,⁵⁴ the GCM seeks to foster international co-operation on migration so as to maximize its overall benefits while also addressing its challenges for countries of origin, transit and destination. It aims to reduce ‘irregular and involuntary migration by addressing conditions that prevent people from achieving the SDGs; and ensure that migration that occurs does so in a safe, orderly and regular manner’.⁵⁵ The co-operative framework for ensuring safe, orderly and regular migration rests on the GCM’s ten guiding principles and its 23 Objectives, the latter to be realized through implementation of a total of 187 related actions which provide concrete examples of the measures states may take to realize the Objective in question.⁵⁶

Some commentators have positively evaluated the GCM and its potential to promote more consistent and effective protection of migrants’ rights.⁵⁷ I am concerned in this article, however, that the GCM, as an epitome of the turn to soft law for the protection of migrants’ rights, may result in the dilution of that protection. In addition to its non-binding nature, deference to state sovereignty pervades the GCM. It ‘upholds’ the sovereignty of states and ‘reaffirms’ their sovereign right ‘to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law’ (GCM, paragraphs 7, 15, 27). The motivation of states in drawing up the GCM as a blueprint for international co-operation on migration is evident from the relegation of the three specialized treaties on migrant workers⁵⁸ to the document’s footnotes. This arguably reflects a desire to downplay their relevance, in stark contrast to the more widely ratified control-focused protocols on trafficking and smuggling, ‘which appear openly in the body of the GCM text and in respect of which there are explicit calls to promote their ratification, accession and implementation (GCM, paragraphs 25(a), 26(a)).’⁵⁹

3.1 From migration crisis to crisis for migrants’ rights: The consequences of the centrality of sovereignty to renewed international co-operation on migration

3.1.1 A crisis for migrants’ rights protection? Attenuating rights and amplifying the fragmentation of international migration law

Soft law is made up of statements, agreements and documents that, though important and influential, are not binding.⁶⁰ States cannot, therefore, be legally compelled to comply with soft-law agreements. It is this very lack of binding obligation that makes soft law so appealing to states as a means of governance and regulation of issues that cross international borders. Soft-law instruments entail a loss of less autonomy for co-operating states than would ‘hard legal acts’⁶¹ such as treaties. Soft law does not inevitably entail a contraction in rights protection for international migrants. It may act as a precursor to binding multilateral agreements protective of human rights: the ICRMW itself was preceded by the UN’s adoption of the Declaration on the Human Rights of Individuals who are not nationals of the country in which they live in 1985.⁶² Similarly, soft-law documents may generate far-reaching normative and practical developments to the benefit of people on the move, as has been the case with the Cartagena Declaration in the context of Latin America.⁶³ In the case of the GCM itself, commentators have already identified ways in which it may be deployed by lawyers and courts at the national level to bring domestic immigration law and policy into line with minimum international standards on migrants’ rights protection.⁶⁴ At the same time, however, soft law may result in curtailment of rights, the danger I am concerned with in this article. It is the GCM’s very lack of binding legal obligation that facilitates gaps and inadequacies in international law for the protection of migrants’ rights, contributing to the migrants’ rights crisis I identify in this article. Amongst the risks inhering in soft law is the danger that it may undermine binding rules of international law and weaken their legal authority in the long run.⁶⁵ This risk is very much in evidence in the context of the GCM.

The vast range of issues covered in the Compact precludes a detailed discussion of the rights dilution potential of each of its provisions and omissions. In this subsection I will illustrate my concerns with three brief examples, namely, labour rights; the right to leave a country; and immigration detention of children.⁶⁶ Some of the Compact’s provisions are not in line with the interpretation of human rights and labour standards developed by the relevant international supervisory bodies.⁶⁷ For example, the GCM’s requirement that basic labour rights be afforded to migrant workers engaged in contractual labour (GCM, paragraph 22(i)) could result in – and be used by states to justify – withholding such rights from irregular migrants in contravention of the requirements of international human rights and labour treaties.⁶⁸ As I indicate in Section 3.1.2, it is unclear whether the review process for states’ implementation of the GCM will suffice to head off this kind of risk of rights dilution.

An even more striking assault on the rules of international migration is the conspicuous omission from the GCM of the right to leave any country, ‘the most truly universal rule on migration’.⁶⁹ This may be partly explained by the Compact’s ‘development setting’ and the fact that brain-drain mitigation efforts, one of the three main tools deployed to harness migration for development, presuppose ‘that the human right to leave a country can be curtailed, possibly indefinitely’.⁷⁰ In any event, its absence from the Compact may be used by states to restrict this fundamental right.⁷¹ Any criticism of such restriction directed at states during review of GCM implementation, to be discussed presently, may be convincingly deflected by pointing to the non-inclusion of the right to leave in the Compact.

Closely related to the risk of rights-dilution is the GCM’s potential to aggravate the already fragmented nature of international migration law⁷² and international human rights standards. While an early advocate of the GCM suggested it could ‘bundle agreed norms and principles into a global framework agreement’,⁷³ the document adopted in 2018 bundled together some of the agreed rules concerning international migration. Apart from baldly excluding some rules, such as the aforementioned right to leave any country, the GCM also enshrines less migrant-friendly incarnations of existing rules, as illustrated by its approach to immigration detention of children.

While there are competing scholarly views as to the permissibility of immigration detention of children under international human rights law,⁷⁴ and inconsistency in the approach taken by UN human rights bodies,⁷⁵ the adoption of the GCM presented an opportune moment to solidify in international human rights law the complete prohibition on such detention articulated in the second of the two joint general comments adopted in 2017 by the UN Committees on Migrant Workers (CMW) and on the Rights of the Child.⁷⁶ This Joint General Comment has been characterized as the apogee of the evolution towards a complete prohibition on the immigration detention of children.⁷⁷ It might therefore have been expected that the GCM would reiterate this absolute prohibition. Indeed, the 2016 report of the UN Secretary General that called for the elaboration of the GCM urged states to ensure that children, as a matter of principle, are never detained for purposes of immigration control⁷⁸ and a report submitted by the UN Secretary General to inform the elaboration of the GCM specifically recommended that states should focus on ending immigration detention of children.⁷⁹

The GCM, however, aspires only to ‘working to end the practice of child detention in the context of international migration’ (GCM, paragraph 29(h)). The GCM thus approaches the child’s right to liberty, a civil right entailing immediate obligations, ‘as if it were a socio-economic right to be realised progressively over time, or worse, as a matter of soft law or best practice’.⁸⁰ Simultaneously, the GCM undermines the development of international human rights law, applying the brakes to the ‘emerging consensus on the complete prohibition of immigration detention of children’⁸¹ and perpetuating fragmentation and incoherence in relation to the elaboration of protection standards for some of the most acutely vulnerable individuals.⁸²

3.1.2 Letting states off the hook? Monitoring respect for migrants’ rights in a post-crisis international community

The process in place for review of its implementation deepens the risk that the GCM may result in attenuation of international standards for migrants. Evaluation of progress on implementation is to be state-led (GCM, paragraph 48), with a global review of such progress to occur every four years, beginning in 2022, at the International Migration Review Forum (IMRF). This Forum will serve as the primary inter-governmental platform for states to discuss and share progress on implementation of all aspects of the Compact and each Forum will result in a Progress Declaration (GCM, paragraph 49).⁸³ Follow-up and review of progress are to be supported by the establishment of a ‘groundbreaking’⁸⁴ new network called the UN Network on Migration (GCM, paragraph 45). The Network comprises around forty members of the UN system with migration-related mandates and will rely on the International Organisation for Migration (IOM) as its co-ordinator and secretariat (GCM, paragraph 45(a)).

The key role assigned to the IOM gives further cause for concern. The organization lacks a human rights mandate and has been criticized in the past for displaying a greater appetite for supporting state activity in migration regulation than migrants’ rights.⁸⁵ Its involvement is therefore unlikely to act in any way as a bar to state implementation of the GCM that, while GCM-compliant, falls short of international standards. The informal exchange of best practice conducted during the non-binding IMRF may provide states with further incentives not to report to UN human rights treaty bodies⁸⁶ such as the CMW, or with justification during the dialogue with such bodies for failure to meet international standards in their treatment of migrants.

Chetail takes the view that the conclusion of the GCM, an international agreement on a notoriously contentious topic, is an achievement in and of itself and the fate of the ICRMW supports Chetail’s stance that the alternative ‘was not between a binding instrument and a non-binding instrument, but between a non-binding instrument and no instrument at all’.⁸⁷ But might no instrument at all have been the better outcome from the perspective of migrants’ rights protection? Given the concerns outlined in the foregoing paragraphs, has the GCM inaugurated a migrants’ rights protection regime that is essentially a ploy for states ‘to strengthen their own position, to the detriment of others’?⁸⁸ Such questions may lead many international migrants to agree with the argument advanced by Jan Klabbers nearly a quarter century ago that ‘not only do we not need soft law, we do not even want it either … soft law is, actually, detrimental’.⁸⁹ Certainly, there is the possibility that soft law in the form of the Agenda 2030 and the GCM will operate to the detriment of migrants’ rights protection.

The risk of rights dilution created by the GCM and its review process has been recognized, at least implicitly, in the decision of the CMW in November 2020 to adopt a General Comment on the convergence of the ICRMW and the GCM. One of the goals of the proposed General Comment is to assist states ‘in implementing their commitments contained in the Global Compact, in particular so as to ensure that they do not fall short of the obligations contained in the Convention and other international human rights instruments’.⁹⁰ This kind of initiative is as urgently necessary as it is unlikely to be sufficient to prevent the backsliding on rights protection and fragmentation of international human rights law I identify in this article.

4. Solidarity in crisis: EU unity and co-operation on migration

In this section I will examine three recent developments that illustrate how pursuit of sovereign self-interest by EU member states has undermined the EU’s Common European Asylum System, freedom of movement within the EU, and EU external representation. The first two developments demonstrate not only the resilience of state sovereignty in the context of international migration, but also exemplify the depth of the challenge to internal EU co-operation and co-ordination posed by the 2015 migration crisis and thereby help to explain the enthusiasm of the EU and its member states for soft-law developments such as the GCM as a response to that crisis. The third development illustrates how state sovereigntist concerns around international migration can scupper EU efforts to present a unified approach to the GCM, itself a response to the 2015 migration crisis and a source of the migrants’ rights crisis identified in this article. While I am concerned primarily here with migration-related crisis, the EU has been shaken by a number of crises in recent decades,⁹¹ and it is important to point out that there is a temporal and material overlap between the challenges caused to the EU by migration and a variety of other crises which feed into and sustain each other.

4.1 Scalding the Common European Asylum System: State sovereign self-interest brought to the boil by crisis

Since it gained law-making power in the field of immigration and asylum with the entry into force of the Treaty of Amsterdam in 1999, the EU has developed a Common European Asylum System, a central pillar of which is what is known as the Dublin Regulation.⁹² This Regulation sets out the criteria for determining which EU member state⁹³ is responsible for examining an asylum application, with the default position being that such responsibility lies with the first EU state of entry. The combined effect of geographical happenstance and the Dublin Regulation was to place a disproportionate burden on a small number of countries such as Greece, Italy and Malta in terms of reception of asylum-seekers and examination of their claims. The responses of EU states to the operation of the Dublin system, and to measures taken to sustain it, illustrate the persistent potency of state sovereign self-interest and its capacity to hobble inter-state co-operation even in as integrated a regional bloc as the EU, whose legal framework explicitly encodes the principles of solidarity and fair sharing of responsibility.⁹⁴

Following the arrival of over a million migrants to the EU in 2015⁹⁵ particular pressure was placed on the principal EU states of first entry, namely, Italy and Greece. In response to those countries’ need for assistance, the Council of the EU adopted two emergency temporary relocation decisions⁹⁶ on the basis of Article 78(3) TFEU,⁹⁷ requiring member states to accept the transfer from Italy and Greece of a total of 160,000 applicants for international protection. A number of states in Central and Eastern Europe expressed vehement opposition to the relocation obligation, with Slovakia and Hungary, supported by Poland, taking a legal challenge against one of the Council Decisions that generated a lengthy ruling from the Grand Chamber of the Court of Justice of the EU (CJEU) in 2017.⁹⁸ While Slovakia and Hungary advanced legal arguments in contestation of the Decision, their opposition was essentially political⁹⁹ and is better understood not so much by reference to the legal grounds submitted to the CJEU but in light of the considerations typified by Poland’s claim that the obligation to accept asylum-seekers would place a disproportionate burden on ethnically homogeneous countries with populations culturally and linguistically different from the migrants to be relocated on their territory.¹⁰⁰

The resilience of state sovereign self-interest in the face of EU law solidarity and responsibility-sharing obligations is illustrated by the fate of the Council Decisions and the CJEU ruling that rejected the arguments of Slovakia and Hungary and upheld the impugned relocation decision. Of the 160,000 individuals to be compulsorily transferred from Greece and Italy, only 34,705 appear to have been relocated.¹⁰¹ Furthermore, despite the 2017 ruling from the CJEU, Poland, Hungary, and Czechia continued to flout their obligations under the temporary emergency relocation mechanism, resulting in yet another loss for those states before the CJEU in 2020.¹⁰² Defiant in the face of defeat, the recalcitrant EU states justified their (non)action by reference to national interests and anti-immigrant rhetoric.¹⁰³ The fate of the Council’s relocation decisions is far from the only compliance and implementation deficit blighting the CEAS,¹⁰⁴ but it is an especially conspicuous symptom of the willingness of EU states to flex their sovereign muscle in the face of EU law obligations, with times of crisis encouraging a particularly showy flexing of that muscle. It is simultaneously symptomatic of another of the EU’s contemporaneous crises, with the inability to effectively enforce legal norms contradicting ‘the very essence of rule of law’.¹⁰⁵ The attitude and behaviour of some states in the face of their obligations under the Council Decisions illustrate how the intertwining of law and politics may imperil the rule of law.¹⁰⁶

The temporary emergency relocation mechanism instituted by the aforementioned Council Decisions constituted a de facto crisis-fuelled deviation from the normal operation of the Dublin Regulation. The same perceived crisis has also occasioned states at the frontline of migrant arrivals to take measures precluding the normal operation of the Dublin system without the imprimatur of the EU institutions. In 2018, Italy and Malta began the practice of closing their ports to private rescue vessels with migrants on board.¹⁰⁷ Refusing to allow migrants rescued at sea to disembark is likely to have been a breach of EU asylum law.¹⁰⁸ The measure was, however, successful in that it effectively strong-armed a number of EU member states into voluntarily accepting migrants disembarked following search and rescue operations in the high seas who came under the responsibility of Italy and Malta.¹⁰⁹ Both states also instrumentalized the ongoing global health crisis to revert to a policy of non-disembarkation.¹¹⁰ In April 2020 Italy, followed quickly by Malta, declared, in conspicuously similar language, that it was not possible to provide places of safety on their respective territories to persons rescued at sea without compromising the national effort to contain the spread of the virus and care for those infected.¹¹¹ These pandemic-related port closures by Italy and Malta resulted in migrants being stranded at sea,¹¹² potentially putting lives at risk,¹¹³ and arguably fell foul of international human rights and maritime law and international health regulations.¹¹⁴ While undoubtedly a manifestation of dissatisfaction with the operation of the Dublin system, they also manifest the willingness of EU member states to invoke crisis as a justification for showy displays of sovereignty in the context of international migration and obligations owed to other states and migrants themselves.

4.2 Schengen

The pooling of sovereignty and the tightly woven regional integration achieved in the name of the project of European Union is exemplified by the abolition of internal EU borders in what is known as the Schengen zone,¹¹⁵ a development that has been acclaimed by the EU as one of its greatest achievements.¹¹⁶ The practical operation of the borderless Schengen zone came under sustained pressure, however, in the wake of the 2015 crisis, with border controls being re-imposed by countries traditionally at the forefront of EU integration such as Belgium, France and Germany.

It is important to point out that the temporary re-introduction of checks at internal borders is permitted under the Schengen Borders Code.¹¹⁷ Where there is a serious threat to public policy or internal security, a state may as a matter of last resort re-impose border controls, if such re-introduction is likely to adequately remedy the threat in question, and only for as long as is strictly necessary to respond to that threat.¹¹⁸ On this basis, internal border controls had been temporarily re-instated by Schengen states prior to the 2015 migration crisis for a range of events including major intergovernmental summits and sports fixtures.¹¹⁹ More recently, internal border checks have been invoked across the Schengen zone as part of efforts to contain the spread of COVID-19.

In response to the movement across the EU of many of the hundreds of thousands of migrants who had arrived by sea to Greece and Italy in 2015, a number of Schengen states began to re-introduce and prolong internal border checks, initially on the basis of a ‘big influx of persons seeking international protection’ and subsequently due to the ‘security situation in Europe and threats resulting from the continuous significant secondary movements’.¹²⁰ This latter reason was provided to justify prolonging internal border checks by Norway until 11 May 2019 and by Austria until 12 November 2019. In light of this sustained re-instatement of internal border controls, which requires the existence of a serious threat within the Schengen zone, use of the descriptor ‘2015’ for the migration crisis seems inapposite. Indeed, while the rollout of most internal checks since 2020 has been justified by reference to the COVID-19 pandemic, the ‘situation at the external borders’ has been invoked as a reason by both Austria and Germany to keep internal border checks in operation until 11 November 2021.

The extensive re-introduction and prolongation of internal border checks as a result of migration concerns, at least partly the result of a specific concern not to have to receive individuals seeking international protection, indicates the latent sovereign potency that continues to underpin even the post-Westphalian European Union. A perceived migration crisis can produce a crisis in European integration, undoing decades of hard-won advances by normalizing the re-introduction of internal border checks.¹²¹ It may not be possible to definitively ascertain whether the 2015 migration crisis posed a serious threat to public policy or internal security within the Schengen zone such as to justify prolonged reinstatement of internal border checks,¹²² but populist ‘national politicking’¹²³ in response to the migration crisis saw Schengen states depart for an extended period from one of the EU’s ‘main achievements’.¹²⁴

4.3 Cracks in EU unity: The Global Compact for Migration

The enthusiasm of individual states for informal, soft-law agreements for multilateral co-operation on international migration is shared by the EU.¹²⁵ It is therefore hardly surprising that the EU was quick to commit itself and its member states to the GCM,¹²⁶ taking as active a role in the elaboration of the Compact as its status as a non-state entity allowed.¹²⁷ The EU’s involvement in the negotiations of the Compact was led by the European Commission as representative of the EU and its member states. Its desire to speak with one voice to support and adopt the Compact, however, was undermined by a lack of EU unity. This illustrates how, in the realm of multilateral international co-operation on migration, even soft-law initiatives may fall victim to populist sovereignty-based manoeuvring on the part of individual states whose political parties invoke crisis narratives about unrestricted immigration¹²⁸ to justify their opposition to even ‘the softest of soft law’.¹²⁹

The European Commission’s efforts to obtain authorization to conclude the GCM on behalf of the EU¹³⁰ were scuttled by legal obstacles,¹³¹ but also by opposition to the GCM from individual EU member states. Hungary was first out of the starting blocks in its criticism of the Compact,¹³² with the EU delegation delivering statements on the GCM on behalf of 27, rather than 28, member states¹³³ after May 2018. Hungary’s statements opposing the GCM revealed a surface crack, in what had initially been EU unity vis-à-vis the GCM,¹³⁴ that quickly expanded into a deep fissure, with only 19 of the EU’s member states ultimately voting in favour of the GCM in December 2018.¹³⁵ Of the five states that voted against the Compact in the UN General Assembly, three (Czechia, Hungary, and Poland) were EU members, while there were five EU member states (Austria, Bulgaria, Italy, Latvia, Romania) amongst the 12 countries that abstained from voting.

Amongst the EU member states opposed to the GCM, the most trenchant criticism was offered by Hungary, which tapped into a crisis narrative, casting the GCM as a threat to the sovereign right of states to control their borders that ‘will contribute to launching new, massive migratory flows all over the world, which will put the entire globe at enormous risk’.¹³⁶ The Compact was the cause of political crisis in a number of EU countries.¹³⁷ Slovakia’s Foreign Minister threatened to resign in response to a vote against the GCM in the Slovak national parliament,¹³⁸ while Belgium’s government collapsed following its endorsement of the Compact.¹³⁹

In addition to national level crises the failure of the EU to maintain a common position on the GCM resulted in a crisis for the unity of EU representation on the international scene.¹⁴⁰ The anti-GCM statements and actions of countries like Hungary may have constituted a dereliction of their duties to respect the principle of sincere co-operation in EU external actions, and to refrain from actions likely to impair the EU’s effectiveness as a cohesive force in international relations, as required by Articles 4(3), 24(3), and 34(1) TEU.¹⁴¹ What is remarkable here is not so much that migration matters can touch a sovereign nerve so as to stymie intra-EU and international co-operation on migration, but that such a dramatic reaction was engendered by an aspirational international agreement that is not legally enforceable against states and that ultimately, as I argued earlier, puts in place an international co-operation regime that allows states to backslide, side-step and water down international human rights standards for migrants.

5. State sovereignty v migrants’ rights: Judicial checks on EU state excesses?

The tension between migrants’ rights and states’ sovereign powers of migration control tend to resolve in favour of the latter. Europe’s supranational courts play a key role in this resolution.¹⁴² While there are some widely celebrated key rulings handing consequential victories to migrant applicants, it appears that most cases taken by or on behalf of international migrants before international courts produce decisions in favour of states.¹⁴³ Even in the case of ground-breaking rulings favouring migrant applicants, subsequent judgments tend to row back on the aspects of the initial, seminal decision that posed particular difficulties for states. The well-known Zambrano ruling from the CJEU¹⁴⁴ and the Hirsi ruling from the European Court of Human Rights (ECtHR)¹⁴⁵ are cases in point.

In Zambrano the Grand Chamber of the CJEU deployed the institution of EU citizenship enshrined in Article 20 TFEU to effectively oblige EU states to confer a legal status on unlawfully present migrants on account of the rights of their non-mobile or static EU citizen children. This might at first appear to belie the view that the CJEU tends to eschew challenges to member states on especially sensitive issues such as migration,¹⁴⁶ particularly given that the ruling went against the position advocated by the eight intervening member states and the European Commission that the situation was to be treated as a wholly internal one and therefore fell outside of the scope of EU law.¹⁴⁷ Subsequently, however, the CJEU began to apply the Zambrano ruling in a manner which privileges state powers of migration control over the sanctity of EU citizenship.¹⁴⁸

It is clear from the development of the post-Zambrano line of case law concerning the irregular migrant parents of non-mobile EU citizen children¹⁴⁹ that a moment or narrative of crisis is not a prerequisite to the adjudication of migrants’ claims in favour of states. Times of crisis do, however, turbo-charge the rate at which supranational courts, ‘influenced by the current political sentiments’,¹⁵⁰ loosen the human rights obligations imposed on states vis-à-vis migrants. This is illustrated by important recent rulings from the ECtHR, delivered in the shadow of the migration crisis, which seem to depart from the promise of the 2012 Grand Chamber ruling in Hirsi. Hirsi concerned migrants intercepted by the Italian authorities on the high seas as part of the push-back campaign initiated in 2009 to return migrants to Libya before they could reach European territorial waters.¹⁵¹ The Grand Chamber had appeared to deal a death blow to EU efforts to avoid ECHR obligations through externalizing immigration control by, firstly, requiring compliance with ECHR duties including Article 3 ECHR even in the case of migrants intercepted in the high seas, and, secondly, by requiring under Article 4 of Protocol 4 to the ECHR an individual identification and assessment of migrants’ personal circumstances before expelling them from the jurisdiction of the Council of Europe.¹⁵² Indeed, in May 2012, the Italian Government announced that, in the light of the ruling, it would no longer seek to return migrants to Libya.¹⁵³

With the passage of time, however, Hirsi appears to be a high-water mark for migrants’ rights protection and the ECtHR, despite repeated insistence that the challenges posed by migration flows cannot justify practices that are incompatible with states’ ECHR obligations,¹⁵⁴ seems increasingly willing to interpret and apply those obligations in a way that relieves states of onerous potential duties. The Grand Chamber in Khlaifia, for example, overturned the Chamber finding and held that failure to provide irregular migrants with an individual interview prior to their deportation from Italy did not violate the prohibition of collective expulsion codified in Article 4 of Protocol 4 to the ECHR. While there is a requirement under Article 4 for a migrant to have a genuine and effective possibility of submitting and having examined in an appropriate manner arguments against expulsion, this requirement does not necessarily entail an individual interview.¹⁵⁵ In the same case, the Grand Chamber also departed from the finding of the Chamber, in what has been characterized as an unfortunate setback for migrants’ rights,¹⁵⁶ and held that the detention conditions endured by the irregular migrant applicants did not constitute inhuman or degrading treatment for the purposes of Article 3 ECHR, essentially reaching this conclusion because of the ‘situation of extreme difficulty facing the Italian authorities at the relevant time’.¹⁵⁷

More recently, the Grand Chamber, again overturning an earlier Chamber decision, found no violation of Article 4 of Protocol 4 in the case of two applicants who had been amongst 600 people who attempted to scale the fences separating Spain’s North African enclave of Melilla from Morocco in August 2014.¹⁵⁸ While the Court accepted that the applicants, having been forcibly transferred from Spanish territory to Morocco in handcuffs, had been expelled for the purposes of Article 4 Protocol 4, it held that the expulsions did not violate the prohibition on collective expulsion. The Grand Chamber reached this conclusion by reasoning that the lack of individual removal decisions in the case of the applicants was attributable to their own conduct. Instead of availing of the existing legal procedures for lawful entry in to Spanish territory which would have provided a genuine and effective possibility of submitting arguments against expulsion, the applicants had deliberately placed themselves in an unlawful situation that endangered public safety.¹⁵⁹ N.D. and N. T. was the first time the ECtHR addressed the applicability of Article 4 of Protocol 4 to the forcible return of migrants from a land border in the context of a large-scale unauthorized attempt at entry. If the Court can be said to have endorsed pushbacks at sea borders in Khlaifia, its Grand Chamber ruling in N.D. and N.T. may be said to have given a stamp of approval to violent pushbacks at Europe’s land borders.¹⁶⁰

The ECtHR’s willingness to countenance the EU’s pushback policies coheres with the reluctance of that same institution, and the CJEU in Luxembourg, to impose any obligation on states to issue humanitarian visas at diplomatic posts outside the EU to migrants fleeing persecution. In two remarkably similar cases, X and X v. Belgium ¹⁶¹ and M.N. v. Belgium,¹⁶² both supranational bodies spurned the opportunity to develop an obligation for states under EU law or the ECHR to issue a visa that would allow a family to travel to an EU or Council of Europe member state in order to make an application for asylum. It is noteworthy that the CJEU ruling had been preceded by an Opinion from AG Mengozzi who, taking a strict approach to the prohibition on torture and inhuman and degrading treatment, argued that Belgium was obliged to issue a short-term visa under the EU Visa Code where there were serious grounds to believe that refusal would directly result in the applicants being subjected to a treatment prohibited by Article 4 of the Charter and would prevent them from their only legal route to enjoy their right to apply for international protection. The rulings in both of these cases betray a keen judicial sensitivity to the practical and political difficulties states would have faced in the event of a finding for the applicants.¹⁶³

States are not, of course, entirely dependent on judicial indulgence of their migration control endeavours. In the face of rulings that appear to significantly restrict their sovereign room for manoeuvre in the name of human rights obligations owed to migrants, states learn from their losses in court in order to strategically chart a different course to reach their original goal of evading legal responsibility for migrants, the initial defeat in court being a temporary setback rather than a reconfiguration of states’ attitude and behaviour. In response, for example, to the Hirsi finding that migrants intercepted or rescued by a state’s vessel on the high seas are the legal responsibility of that state, the EU and its member states entered into agreements with third countries to prevent migrants even boarding boats bound for Europe.¹⁶⁴ This of course contains a number of dangers from the perspective of migrants’ rights, given the human rights record of some third countries. It is therefore difficult to resist the impression that in the struggle between state sovereignty and migrants’ rights, the former will ultimately win out over the latter, with or without the assistance of the courts. Supranational judicial sympathy for states’ migration control endeavours is, however, more readily available in times of crisis which see courts bending ‘to the demands of realpolitik’.¹⁶⁵

6. Conclusion

It is clear from the foregoing that the resilience of state sovereignty vis-à-vis migration contains a number of dangers. Firstly, it may galvanize multilateral co-operation on international standards that results in backsliding or avoidance when it comes to protection of migrants’ rights. It may, furthermore, perpetuate the fragmentation and incoherence of international legal standards concerning the protection of migrants, including the most acutely vulnerable such as child migrants. Secondly, it may stymie (legally required) interstate co-operation to the detriment of migrants, as shown by the fate of the EU’s temporary emergency relocation mechanism. Developments involving migration and migrants are particularly susceptible to being characterized and packaged as crisis and emergency events, which are then instrumentalized to justify amplification of states’ migration control powers and legal measures that result in attenuation of the protection of migrants’ rights. In times of crisis, supranational courts appear particularly sympathetic to state migration control practices that could be found to be in breach of human rights obligations, but typically are not. The issue of international migration and migrants’ rights is so susceptible to populist national politicking that it has the power to engender internal and external crisis for the EU, with EU unity on the international scene crumbling in the face of adoption of the GCM and freedom of movement within the Schengen area being severely curtailed following the 2015 migration crisis.

It is not of course all black and white. It has not been a unilinear scenario of rights restrictions and rulings decided in favour of states since the beginning of the migration crisis. The CJEU’s 2017 and 2020 rulings against Hungary and Slovakia are a case in point. But here, even while the rulings went against states, their practical impact to the benefit of migrants is questionable. This illustrates the intertwining of law and politics in the realm of international migration, and how it may imperil the rule of law.¹⁶⁶ The 2015 migration crisis may now be over, but its reverberations continue to echo, providing the background noise to the migrants’ rights crisis currently underway, whose symptoms include an intensified turn to soft law on the part of the EU in concluding international agreements relating to migrants’ rights protection, and the rights-restrictive thrust of supranational migration-related jurisprudence. Careful scrutiny of the GCM review and implementation processes in the years ahead may well reveal inaction and backsliding on migrants’ rights, but any gaps and inadequacies in the law¹⁶⁷ for protection of migrants’ rights that emerge will be unlikely to jolt the EU, its member states, or the international community more broadly into the levels of anxious activity as the other crises experienced by the EU over the past two decades.