The Rule of Law and Human Mobility in the Age of Global Compacts: Relativizing the Risks and Gains of Soft Normativity?

Panizzon, Marion; Vitiello, Daniela; Molnár, Tamás (2022). The Rule of Law and Human Mobility in the Age of Global Compacts: Relativizing the Risks and Gains of Soft Normativity? Laws, 11(6), pp. 1-15. MDPI 10.3390/laws11060089

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This MDPI ‘Laws’ Special Issue on the “Rule of Law and Human Mobility in the Age of the Global Compacts” discusses key legal challenges at the juncture between guiding principles and the politically committed norms inscribed in the Global Compact for Safe, Orderly and Regular Migration (GCM) and the Global Compact on Refugees. Our legal inquiry takes us to question the usefulness of “relative normativity” as one legal theory advanced for understanding soft law. Instead, we find that the GCM’s wide-cast spectrum of legal-like and political formats, is less of a “relativization” or a legal action in the “penumbra of law”, but instead a synchronic oscillation between legally binding “guiding principles” and politically committed actions listed in the the 23 Objectives of the GCM. Drawing on negotiating history of the GCM and outcome documents from the first International Migration Review Forum (IMRF), we reason that in many ways, that the recast of legal obligations as “guiding principles” pays tribute to the different speeds and capacities of States and other actors for implementing the Global Compacts and might enhance the 23 objectives. In the best-case scenario, this re-framing of existing obligations achieves a fuller commitment to non-refoulement, the prohibition of collective expulsion or the right to return, and enhances existing best practices, including “firewalls”; while in other cases the de-legalization dilutes the protection of human rights of migrants. If the risks involved in softening the human rights standards are linked to the absence of ranking of priorities are known, the remedial actions to mitigate these risks are less often identified: first, to rely on the bridging function of the guiding principles enshrined in the Global Compacts to concretise rights and obligations, and second, to interlock the Compacts’ commitments more tightly with international legal obligations by relying on treaty bodies to expressly refer to the GCM as interpretative guidance when issuing general comments.

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