How UN Agreements Can Override National Law
2 non-migration cases from France show likely result of migration and refugee compacts
By Nayla Rush on June 17, 2019
A global approach to human mobility was set in motion almost three years ago with the adoption of the "New York Declaration for Refugees and Migrants" by United Nations member states (including the United States under the Obama administration) in September 2016. What followed was the elaboration and the adoption in 2018 of two separate but related UN compacts aimed at addressing migrant and refugee rights: the "Global Compact for Safe, Orderly and Regular Migration" and the "Global Compact on Refugees". The United States, under the Trump administration, chose not to endorse either compact, deeming them incompatible with U.S. sovereignty.
These compacts are mere agreements (not treaties) and are said to be not legally binding, but reality is more complex. In fact, both are "nesting dolls of international commitment and treaties" allowing for the creation of a new model for international lawmaking, one that will eventually override state laws. Civil society groups, human rights advocates, and other defenders of "multilateralism" are likely to use these new global frameworks to pressure states to comply with ostensibly non-binding international commitments versus their own national laws.
To illustrate this process it is worth looking at two recent lawsuits in Europe that are not related to migration but which show how United Nations international agreements were used by private actors to attempt to overturn sovereign state rulings.
The first case relates to Vincent Lambert, a Frenchman left in a vegetative state following a motor vehicle accident in 2008. Numerous medical experts determined throughout the years that Lambert's situation was irreversible. Lambert has been at the center of fierce court battles between divided family members. His wife and most of his siblings are pushing for a removal of his life support and his right to die in dignity, while his parents are fighting to keep him alive at all costs.
Euthanasia is illegal in France, but medical staff can refrain from using disproportionate treatments that maintain life artificially following a 2005 law. Terminally ill or injured patients who have no chance of recovery can undergo a process called "passive euthanasia" whereby they are taken off life support and given heavy sedation for a painless death.
Last month, a French court ruled in favor of taking Lambert off life-support after a ultimate challenge filed by his parents with the European Court of Human Rights was rejected for absence of new evidence. In compliance with the French court, doctors removed Lambert's feeding and hydration tubes and began to administer sedatives. Then, in an unexpected twist, Paris appeals court ordered Lambert be put back on life support. As a last-minute recourse, Lambert's parents referred his case to United Nations-affiliated body, the Committee on the Rights of Persons with Disabilities. French courts had to put on hold the decision to stop Lambert's life support, pending review of this UN body.
The second case relates to the grandmothers of two orphaned children of French jihadists who are appealing to the UN to put pressure on the French government to repatriate their grandchildren currently held in Kurdish militia-controlled camps in Syria. The lawyer in charge of the case said that France had a duty to bring these two orphans back because it is a signatory to the United Nations Convention on the Rights of the Child.
The French government is refusing to take back Islamic State fighters and their wives while considering repatriation of their children on a case-by-case basis. Some 100 French children, or children eligible for French nationality, are held in camps in Syria.
The grandmothers' case mentioned above is not the only one. Other family members are suing the French government for refusing to bring back these children to France. A team of human rights lawyers representing some 40 kids are arguing in court that France is violating its commitment to the UN convention designed to protect children. Many children have died while en route to or at the camps, advocates note, while disease is spreading in these overcrowded camps. These children, family members say, are not responsible for their parents' stories and did not choose to go to Syria
The final outcome of both cases has not yet been determined, but that's almost beside the point.
Ultimately, the introduction of jurisprudence and imposition of new norms are to be expected from entering into "non-binding" UN agreements. The migration and refugee compacts (and the treaties they link to) will likely be used by human rights advocates to override sovereign laws. It is clear that, under these global UN migration rules, human mobility (for migrants and refugees alike) will never be regulated the same, including for nations that opposed the compacts.
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