“I wish there was a treaty we could sign”*

                                                                                                           * Leonard Cohen (2016)

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Thomas Spijkerboer
Professor of Migration Law at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam, and Raoul Wallenberg Visiting Professor of Human Rights and Humanitarian Law at Lund University
28 September 2020

Introduction

Externalization is a core element of the Pact on Migration and Asylum proposed by the European Commission on 23 September 2020, and has been key to European policies since 1990. As 2015 has shown, even sustaining a limited number of asylum seekers and refugees when compared to more seriously affected parts of the world leads to an experienced crisis.

Consequently, the Pact focuses on preventing irregular migration, and seeking asylum is considered as a subset of irregular migration. In addition to proposing reforms of the Common European Asylum System (CEAS) aiming at making it more stress resistant, the Pact extensively repeats the idea that measures in third countries will prevent refugees and migrants from reaching external borders.

The main concepts in this discourse are root causes (especially for forced migration); return and readmission; and legal pathways. The Pact uses the language of partnership and multilateralism, including funding instruments, to achieve externalisation. While the Commission acknowledges that the EU and third countries have different interests, it states that comprehensive, balanced and tailor-made partnerships can deliver mutual benefits (page 17 of the Pact). While this could be read as a truly multilateral approach, other passages in the Commission proposals show that the Commission, as before, proposes to use its assumed superior position of political and economic power – so-called issue linkage and conditionality (also known as carrots and sticks) (page 17).

This essentially coercive approach to cooperation (focussing on the question of how the EU can make other countries do what is in the EU’s interest) ignores the reality that the EU and many third countries have conflicting interests and normative perspectives when it comes to migration and mobility. This contribution to the ASILE Forum addresses that assumption.

The regulation of international migration and mobility is fundamentally unequal. While there are free movement zones on the global South as well as in the global North, the legal regime between global North and South facilitates the mobility of citizens from the global North while subjecting that of citizens from the global South to severe restrictions.

This inequality is evident from a visualization of the Passport Index (Figure 1 below), showing in white the nationalities which need an entry visa for less than 100 countries, and in black those needing a visa for more than 100 countries. The introduction of carrier sanctions means that visa requirements are enforced within the black countries on the map.

Figure 1 Yussef Al Tamimi on the basis of Passport Index (2017)

1. Diverging interests

This global inequality resulting from the visa policies of the global North is a difficult starting point for cooperation between, on the one hand, Europe, and Africa and Asia on the other. African and Asian countries perceive European external migration policies as an enterprise to maintain and reinforce European privilege at the expense of their citizens. The language of partnership and multilateralism used by the EU sits uneasily with the EU having imposed total control over mobility of people from the black countries on the map towards the EU to begin with. This outlook does not seem any more promising when we look at the three pillars of external migration policy which the Pact repeats: root causes, returns and readmission and legal pathways.

1.1. Root causes

Root causes is a concept which was originally develop in relation to refugees and forced migration. The core idea is that refugees and forced migrants are best assisted by addressing those phenomena that caused their flight to begin with. Consonant with earlier developments linking refugees and irregular migration, the Pact refers to “root causes of irregular migration”. Like before, the notion of root causes is related primarily to economic development, even though the Commission refers to the importance of conflict prevention and peace (page 20 of the Pact).

As B.S. Chimni has pointed out: it is remarkable that Europe as well as other actors in the global North remain silent about the root cause that is arguably the largest single contribution to forced migration, namely military interventions and proxy wars of the US and EU countries such as those in Afghanistan, Iraq, Syria, Yemen, Libya and the subsequent destabilisation of the Sahel. Also, economic development initially results in more migration, while in addition development policies have notoriously little effect, partly because substantial amounts end up being paid to European entities.

1.2. Return and readmission

For decades, European countries have argued that effective return is essential to their migration policies. The idea is that, if irregular migrants know that they will be deported from Europe, they will realise it makes no sense to undertake the trip and won’t come to begin with.

However, many citizens in countries of origin voice protests against their governments cooperating with Europe in returning their friends and relatives (as happened in Mali and Senegal, for example). Although it is regular, and not irregular, migrants that send the most remittances, the solidarity of citizens within countries of origin with their friends and relatives abroad is an obstacle to cooperation. This is more so in countries of origin with functioning electoral systems or with forms of free media and civil society.

One of the innovations the Commission proposes in the Pact is to codify the possibility to take “any measures” which could be taken against a country that “is not cooperating sufficiently on the readmission of illegally staying third-country nationals” (Article 7 of the proposed Regulation on asylum and migration management). A detail to note is that steps can be taken against countries even if they refuse to readmit non-nationals who transited through their territory, as is evident from the term ‘third-country nationals’ instead of ‘their nationals’.

1.3. Legal pathways

Directly linked to negotiations on readmission, the EU has said over the past 15 years that it is open to discussing legal pathways for migration. The two are to be incorporated into Mobility Partnerships and Common Agendas between the EU and third countries.

However, in reality it turns out that these instruments promote the externalisation of European migration policy. Legal pathways fail to become a reality. The most blatant example of this was the implementation of the EU-Turkey deal of March 2016. While Turkey by and large abided by its obligations to prevent the movement of refugees towards Europe, talks of visa-free travel to Europe for Turkish nationals predictably got stuck in a way that, from the Turkish perspective, was a matter of European obstruction. In the Pact, passages on legal migration mention extremely limited resettlement of refugees and high skilled migration, and in addition remain nebulous and unspecific. Legal migration as an alternative to irregular migration is not part of the discussion.

Of the three main pillars of European external migration policy, the interests of the EU and of third countries do not run parallel. An important element of EU policy is to try to influence the interests of third countries through issue linkage and conditionality: the EU will finance things in third countries, give other advantages, or to the contrary take punitive measures (including limiting the issuance of visas, or removing a country from the list of visa-free countries, pages 21-22 of the Pact), depending on whether the third country implements European external migration policies. This sometimes works, but comes at a price: that of supporting problematic regimes.

In order to implement European external migration policies, third country governments need to repress domestic opposition to those policies. And if the EU has brokered a migration agreement with the government of a third country, it has an interest in preventing regime change even if it is democratic, if the new government risks being more critical of European migration policy. Supporting problematic regimes is not merely an ethical issue. It also undermines a basic assumption of European external migration policies: the idea that open and democratic societies in third countries will be attractive to their citizenry and will lead to less irregular migration.

2. Different normative perspectives

As we saw above, third country interests do not necessarily align with European interests in the field of migration policy. Partly in relation to this, third countries may have different normative ideas about migration and international law. By way of example, I will focus here on Africa, which is a major target area of European policy.

2.1. Non-reversal

Expressing the doctrine on which European state practice, legal doctrine, academic writing and case law is based, the European Court of Human Rights consistently begins its reasoning in migration-related judgments by promulgating that “as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory” (see the foundational judgments on Article 8 ECHR (family reunion), Abdulaziz, at 67; on Article 3 ECHR (asylum), Vilvarajah, at 102; and on Article 5 ECHR (immigration detention), Saadi, at 64).

This construction of international law prioritises the right of states to control migration over human rights, which has been labelled a “sedentarist” position by Daniel Thym, and the “Strasbourg reversal” by Marie-Benedicte Dembour.

Case law of the African Commission of Human and Peoples’ Rights makes clear that African courts have not necessarily adopted the sedentarist legal doctrine of the European Court of Human Rights. The Commission labels mass deportations as a violation not only of the prohibition of collective expulsion, but also of the right to property, to work, to education, to family life as well as to an effective remedy, and as discrimination based on origin. Only after establishing this, it remarks that the Commission does not call into question the right of states to take legal action against illegal immigrants (Communications 71/92 and 159/96). Similarly, the Kenyan High Court prohibited the refoulement of Somalians and in doing so constructed international law as well as the Kenyan Constitution broadly. It refers to the number of refugees in Kenya to underline the importance of these norms, instead of justifying a restrictive interpretation (Petition 227/2016).

This non-inverted way of relating international law and migration can also be seen in the work of African academics such as Abdoulaye Hamadou and Edwin Odhiambo-Abyua. Furthermore, core concepts in international migration law (such as irregular migration and transit migration, and the concrete meaning given to migrant smuggling) are seen as an effect of the exclusion of migrants from human rights protection imposed on African policy makers by European pressure. In their writing, many African authors do not distinguish strictly between migration and mobility; they normalise mobility/migration; and see free movement legislation as a codification of pre-existing fundamental norms and practices characteristic of pre-colonial normality. African social scientists relate this to the specific character of African states and state borders, as well as to a tradition of mobility on the continent; see among others Tsion Tadesse Abebe, Aderanti Adepoju, Bréma Ely Dicko, and Nora El Qadim.

In sum, there exists a distinctly African normative framework that includes international legal norms, which sees migration control as requiring justification, whereas the European normative perspective a priori assumes its legitimacy as being inherent in state sovereignty. It would be simplistic to claim that all African actors that are to play a role in European external migration policy have the mobility-oriented normative framework in mind that has been highlighted here. Many African state actors relish the control tools that European external migration policy provides (and funds). Nonetheless, this normative framework exists, and may be shared by African interlocutors of European policy makers. In any case it constitutes a reality in civil society and domestic politics of many African countries.

2.2. Sovereignty

The European perspective views the right to control migration as inherent in state sovereignty, and find it obvious that other states are obliged to respect that sovereignty. Such respect may imply that third states prevent migration through their territory towards Europe. African states are also quite concerned with their sovereignty, but in ways that may be at cross purposes with European concerns. A first form of this is the objection that, if an African state is to cooperate with European external migration policies, it is being instrumentalised by Europe. This has been argued to be an infringement of state sovereignty in the Libyan litigation about the Memorandum of Understanding with Italy. Similar concerns have been raised by Hamadou and Dicko in the articles cited above in relation to Niger and Mali respectively.

A second form which the concern with sovereignty can take is related to return and readmission. In cases where the nationality of an individual is unclear (as may happen in Africa, with its arbitrary borders and incomplete civil registration), European states often assert that a person is Moroccan or Ethiopian. However, establishing nationality is the prerogative of the state acknowledging its nationality. Another state asserting that a particular person has the nationality of a state that denies this is the case does not sit easily with state sovereignty.

The same is true for the relation between a state and its nationals. There is an evident right of a national to return to their own state. The international law foundation for an obligation of a state to readmit a national while both the national and their state do not with so is weak. African states may find that it is to that state, and not to a European state, to decide how it will shape its relations with its nationals abroad. Additionally, African states may consider the idea that they are under an obligation to admit non-nationals who purportedly transited through their territory as an affront to their sovereignty.

3. A treaty to sign?

To a considerable extent, the European Commission’s Migration and Asylum Pact relies on the success of its external migration policies, which can be summarised as third countries keeping migrants away from European borders. This requires cooperation of third countries.

However, third countries feel the starting position is unfair because of the unequal global mobility regime. European and third countries have diverging interests and normative outlooks. So far, EU policy has tried to bridge the gap of interests and norms by externalising its political economic power, by informal arrangements, and increasingly by financial instruments (which are then informalised on top of that). These arrangements are seen by many in the targeted countries as being mildly or less mildly coercive, and as disrespectful of African interests and perspectives.

Much is to be said for reconsidering the option of the classical international law instrument that was developed for bridging the divergent interests and positions of states: the treaty. Treaty making allows for involving parliaments and civil society, which may help in including multiple interests and perspectives in the outcome. In the mid-long term, the EU has an interest in cooperation with third countries that is considered as legitimate and beneficial by the populations of all countries involved.