“Informal agreements as an opportunity for a fairer migration policy”

Currently, the European Commission is holding negotiations with Morocco, Algeria, Tunisia, Libya and Mauritania with the aim of ensuring that people migrating from their countries do not even reach the borders of the European Union. This is one present-day example of how the EU is outsourcing its responsibility for migration to third countries. This approach is a response to the arrival in 2015 of hundreds of thousands of people seeking protection; its purpose is to curb irregular migration using foreign policy tools. Cooperation agreements with third countries, such as the EU-Turkey deal or the “Global Pact on Refugees” passed by the United Nations, are being signed at an informal level with increasing frequency. The legal scholar Luc Leboeuf from the Max Planck Institute for Social Anthropology in Halle has studied these new methods for controlling migration and concluded that they present both opportunities and risks.

The EU-Turkey agreement of March 2016 and negotiations with other third countries aim to stop migration movements before they even reach the outer border of the EU. Is this a new development?

No, not at all. For years, the member states and the EU have been signing what are known as “readmission agreements” with countries outside the European Union. There is a legal basis for such international agreements in the EU Treaty. However, since the EU-Turkey deal in particular, we have observed an intensified shift towards securing and controlling the peripheral borders of the EU. This incorporation of the EU borders into the common foreign and security policy means that migration is no longer primarily a domestic policy issue, but is increasingly an EU foreign policy matter that in turn is subject to different dynamics.

What does this mean in real terms?

Until now, border security and control has unequivocally been a domestic policy issue. The police are responsible for implementing policy and are subject to strict judicial supervision. The legality of the methods used is clearly regulated. Therefore, there is a fixed legal framework and a high degree of legal certainty. This is now changing, however. If border security and control is increasingly regulated in cooperation with third countries, migration, which has traditionally been a purely domestic issue, is now increasingly becoming a foreign policy topic, for which other actors are responsible and for which other tools are available, the legal status of which is not always clear.

What is the impact of this shift in focus?

First of all, it means that migration policy is becoming increasingly informal, since the tools used in foreign policy serve the purpose of informal cooperation. They include various processes at trans-regional level, as they are known, such as the “Budapest Process”, the “Rabat Process”, the “Prague Process” and the “Khartoum Process”. These are inter-state forums for dialogue and cooperation, which increasingly form a frame of reference for practical collaboration. In contrast to - the debates in the European Parliament, - for example, these cooperation agreements are not negotiated in the public eye. This means that with increasing frequency, migration policy is being conducted in back rooms, as it were, in which the institutions responsible for the division of power, namely the European Parliament and the European Court of Justice, are not in a position to discuss or monitor the methods being used.

What consequences does this have for the refugees?

It is not just the negotiations that have shifted out of the public eye; the exclusion of the people seeking refuge is itself increasingly taking place out of sight. One example of this phenomenon are the notorious internment camps in Libya, where people seeking refuge are held after being prevented from crossing the Mediterranean by the coast guard.

Is it the case then, that due to an informalization of migration policy, and to a certain extent through backroom diplomacy, human rights and the rule of law are endangered?

Yes, this is a real risk. The shift of migration policy from domestic to foreign policy means less democratic control and less control by the traditional institutions. The approach currently being taken by the EU and the member states for reaching agreements with third countries aims mainly to secure and control borders, and not to protect human rights. As a result, the risk increases of human rights violations, which are already happening in reality. One example of this is the cooperation I just mentioned between the EU and Libya. The Libyan coast guard regularly uses force to prevent people seeking refuge from crossing the Mediterranean. Here in particular, it would be important to be able to exert democratic control.

This is a strong and clear argument against new, informal methods of controlling migration...

Yes, you're right. But it’s not that simple. These methods aren’t only bad. The shift from domestic to foreign policy allows more room for manoeuvre for the foreign policy actors to develop new ways of controlling migration. This is reflected in the Global Pact on Refugees passed by the United Nations in November 2018, which was signed by the EU. The principle is this: if, for example, the EU signs an agreement with other countries at foreign policy level, it has its own agenda, but the countries in the global south also have their agenda, which differs from that of the EU. They are interested in permitting migration to a certain extent, since they are dependent on it for a variety of different reasons. This is exactly where informal tools such as these come in useful: they can be used to create a more balanced regulation, since third countries have to be involved in the agreement. The best example of this is in fact the Global Pact on Refugees. However, unlike the EU, third countries are not currently in a strong position to negotiate on the foreign policy stage, and negotiations could therefore lead to imbalanced agreements.

Which are currently greater – the opportunities, or the risks?

Even if these methods are not legally binding, they are a step towards stronger international cooperation when it comes to migration. Therefore, if the aim is to encourage greater cooperation, it may also be necessary to accept that migration policy is increasingly being conducted behind closed doors. We will only benefit from the opportunities presented by these new tools when a migration policy is created in which the present, purely security-driven, agenda is abandoned. In other words, we will not have the opportunity to forge a balanced migration policy using informal methods unless development policy and human rights considerations are also taken into account.