The recent proliferation of soft law instruments in international migration raises questions regarding the different formats of soft law, ranging from dialogue, to compact, to partnership, to how form impacts legal effects. Debate on the spectrum of soft law within the public international legal sphere has gained stringency through the endorsement of the Global Compact for Safe, Orderly and Regular Migration (GCM). Since 2018, the Compacts have initiated several developments in the making and meaning of soft law at multiple levels of migration governance—regional, bilateral and local. Consequently, it makes sense to study the practices, policies and programs contained in the global cooperation frameworks to understand if such informal law-making substitutes or complements legally binding norms within international migration law (IML). More broadly, this research topic aims to formulate general insights into when and why states refrain from binding commitment.
This Research Topic asks if informal law-making, evident in the Compacts, is revealing new functions and formats for soft law. Whilst the Compacts provide the opportunity to review the soft-hard law continuum, it also provides for new pathways in legal practice and interdisciplinary research. One avenue of enquiry asks if states could mobilize change through soft law and whether this can lead to the more formal inclusion of non-state actors into law-making, to mitigate the differences between sending, host and transit countries and to promote the de-colonialization of migration law. Has political commitment served to de-politicize the triangularity opposing host, transit and sending countries? Or has the GCM enabled States to fine-tune their authority and control by mapping their practices, programs, policies under a global cooperation framework? Has soft law re-affirmed sovereign control over borders and thereby relativized norms, including human rights, non-refoulment and labour standards?
The GCM also reveals the recurrent antagonism of opposing binding obligations to softer formats. At the same time, this raises the question of whether some non-binary functions have emerged, shifting the qualities and functionalities of soft law. Firstly, in its conflictual relation to hard law, soft law, borrowing from the natural sciences, is “specifying” the opinio juris for custom to condense. Secondly, the Compact reveals that soft law can de-couple from hard law, in what has been identified as a “gap-filling” role by Höflinger (2021) and Pécoud (2021), through variation to either “delegitimize” a hard rule or to “internationalize” a national, bilateral or regional practice (See Gruchalla-Wesierski, 1984). Thirdly, is there a more negative role representing the trend towards coercion and informalization whereby treaties and agreements are to be preferred (by sending and transit countries) over an “asymmetry of arrangements” which seek to undermine legal protection in migration law and policies. Finally, the Compact offers the opportunity to discuss the role of general principles of law as a transmission belt mediating between legal rights and obligations and informalized law-making and soft law outcomes.
Scholars are encouraged to explore the extent to which soft law delivers autonomous, self-standing solutions that are consciously removed from courts and parliaments, but which inversely, might be inclusive of non-state stakeholders. Does soft law pursue a declaratory and self-binding function in the sense that state consent reaches as far as political commitments, but without being formalized (see Höflinger, 2021)? Did the informal law-making resulting in the GCM’s 23 political commitments amount to a de-legalization of sensitive areas of compromise between national sovereignty, development cooperation and root causes (see Wessel, 2021)? Inversely, is the GCM’s negotiated outcome, one which relativizes the normativity of human rights and refugee protection, to de-politicize the lines of conflict and level the playing field for future consensual law-making between the Global North and South (see Pécoud, 2021)?
Any researcher, from migration or legal studies, is invited to contribute to this Research Topic. Legal analysis, either stand-alone or in combination with an interdisciplinary approach, is particularly encouraged. The Editors encourage/welcome papers that draw on critical traditions such as TWAIL, CRT, Feminism etc.) in examining questions at the intersection of international economic law and migration law.
Specific themes could include:
- Why is soft law being mobilized in international migration law?
- How useful for international migration law is the linear, dichotomous definition of soft law, traditionally in use in legal theory and deriving, by negation, from hard law?
- Reflecting on (non-)dichotomy theory: is soft law a substitute or complement to hard law?
- Is soft law de-legalizing human rights and other international obligations in the GCM? Or is it an opportunity for inclusivity of non-state actors?
- What are alternative autonomous, self-binding functions of soft law beyond ‘filling in the gaps’?
- What authority and control do states in the GCM, or in other soft cooperation frameworks, intend to make more effective?
- Why do states, and which ones (sending, transit, receiving), benefit from the wider spectrum of formats available to soft law (compact, partnership, dialogue, agenda, joint understanding)?
- Is there a “firming up” of soft law in IML and for what regulatory contents?
- Is soft law a process within the making of custom, mirroring an expression of a legal conviction (opinion juris) in IML?
The recent proliferation of soft law instruments in international migration raises questions regarding the different formats of soft law, ranging from dialogue, to compact, to partnership, to how form impacts legal effects. Debate on the spectrum of soft law within the public international legal sphere has gained stringency through the endorsement of the Global Compact for Safe, Orderly and Regular Migration (GCM). Since 2018, the Compacts have initiated several developments in the making and meaning of soft law at multiple levels of migration governance—regional, bilateral and local. Consequently, it makes sense to study the practices, policies and programs contained in the global cooperation frameworks to understand if such informal law-making substitutes or complements legally binding norms within international migration law (IML). More broadly, this research topic aims to formulate general insights into when and why states refrain from binding commitment.
This Research Topic asks if informal law-making, evident in the Compacts, is revealing new functions and formats for soft law. Whilst the Compacts provide the opportunity to review the soft-hard law continuum, it also provides for new pathways in legal practice and interdisciplinary research. One avenue of enquiry asks if states could mobilize change through soft law and whether this can lead to the more formal inclusion of non-state actors into law-making, to mitigate the differences between sending, host and transit countries and to promote the de-colonialization of migration law. Has political commitment served to de-politicize the triangularity opposing host, transit and sending countries? Or has the GCM enabled States to fine-tune their authority and control by mapping their practices, programs, policies under a global cooperation framework? Has soft law re-affirmed sovereign control over borders and thereby relativized norms, including human rights, non-refoulment and labour standards?
The GCM also reveals the recurrent antagonism of opposing binding obligations to softer formats. At the same time, this raises the question of whether some non-binary functions have emerged, shifting the qualities and functionalities of soft law. Firstly, in its conflictual relation to hard law, soft law, borrowing from the natural sciences, is “specifying” the opinio juris for custom to condense. Secondly, the Compact reveals that soft law can de-couple from hard law, in what has been identified as a “gap-filling” role by Höflinger (2021) and Pécoud (2021), through variation to either “delegitimize” a hard rule or to “internationalize” a national, bilateral or regional practice (See Gruchalla-Wesierski, 1984). Thirdly, is there a more negative role representing the trend towards coercion and informalization whereby treaties and agreements are to be preferred (by sending and transit countries) over an “asymmetry of arrangements” which seek to undermine legal protection in migration law and policies. Finally, the Compact offers the opportunity to discuss the role of general principles of law as a transmission belt mediating between legal rights and obligations and informalized law-making and soft law outcomes.
Scholars are encouraged to explore the extent to which soft law delivers autonomous, self-standing solutions that are consciously removed from courts and parliaments, but which inversely, might be inclusive of non-state stakeholders. Does soft law pursue a declaratory and self-binding function in the sense that state consent reaches as far as political commitments, but without being formalized (see Höflinger, 2021)? Did the informal law-making resulting in the GCM’s 23 political commitments amount to a de-legalization of sensitive areas of compromise between national sovereignty, development cooperation and root causes (see Wessel, 2021)? Inversely, is the GCM’s negotiated outcome, one which relativizes the normativity of human rights and refugee protection, to de-politicize the lines of conflict and level the playing field for future consensual law-making between the Global North and South (see Pécoud, 2021)?
Any researcher, from migration or legal studies, is invited to contribute to this Research Topic. Legal analysis, either stand-alone or in combination with an interdisciplinary approach, is particularly encouraged. The Editors encourage/welcome papers that draw on critical traditions such as TWAIL, CRT, Feminism etc.) in examining questions at the intersection of international economic law and migration law.
Specific themes could include:
- Why is soft law being mobilized in international migration law?
- How useful for international migration law is the linear, dichotomous definition of soft law, traditionally in use in legal theory and deriving, by negation, from hard law?
- Reflecting on (non-)dichotomy theory: is soft law a substitute or complement to hard law?
- Is soft law de-legalizing human rights and other international obligations in the GCM? Or is it an opportunity for inclusivity of non-state actors?
- What are alternative autonomous, self-binding functions of soft law beyond ‘filling in the gaps’?
- What authority and control do states in the GCM, or in other soft cooperation frameworks, intend to make more effective?
- Why do states, and which ones (sending, transit, receiving), benefit from the wider spectrum of formats available to soft law (compact, partnership, dialogue, agenda, joint understanding)?
- Is there a “firming up” of soft law in IML and for what regulatory contents?
- Is soft law a process within the making of custom, mirroring an expression of a legal conviction (opinion juris) in IML?