The Informalization of migration policies: the pitfalls of Soft Law

Little known to the public, soft law is a formidable weapon in the hands of States, which use this method when they want to get around the constraints and rigidity that national laws or international texts and treaties would impose on them.
It is often mobilized in the field of "migration control", without it always being easy to distinguish between the strict application of the law and its circumvention. The externalization of asylum and immigration policies is a typical example of the use of soft law: the European Union (EU) or its member states find it advantageous to negotiate a whole host of arrangements with various names, more or less informal, with their "partners" in third countries, misrepresented as being on an equal footing. The aim is to force the latter to stop immigration at source or to take back to their soil the undesirables that will be sent back to them, sometimes under the pretext of urgency (as was the case with the EU-Turkey "declaration" in March 2016, supposed to put an end to the misnamed "migratory crisis"). With soft law, certain clauses contrary to fundamental rights can remain concealed. Abuses will be imputed to these authorities outside Europe, parliamentary or judicial bodies will not be seized, internal dissensions will be less visible and, faced with possible pitfalls, it will be easier to change course.

This opens up a vast field for forms of infra-law which, beyond the diversity of operating methods, inevitably lead to the denial of the norms in force. Hence the challenge for human rights associations to understand the mechanisms of soft law and the public discourse that aims to impose its legitimacy on public opinion.

Contributors : Mikel Araguas (SOS Racismo), Marie-Laure Basilien-Gainche (Law professor, ICM), Jean-Pierre Cassarino (researcher-teacher, Collège d’Europe/IRMC), Brigitte Espuche (Migreurop), Alain Morice (Migreurop), Claire Rodier (GISTI), Anna Sibley (Migreurop).
Map : Nicolas Lambert for the Cartographic Intervention Brigade (Migreurop)
Photo : Extract from the video "No to the war on migrants" - created by the agency Bonjour.