After a first abortive effort, the EU’s three musketeers, Commission President Ursula von der Leyen, Italian and Dutch Prime Ministers Georgia Meloni and Mark Rutte returned to seal a dodgy deal with reluctant partner President Saied of Tunisia, who will accept a bag of Euros in exchange for pretending to prevent refugees and migrants crossing the Mediterranean to Europe. It isn’t clear what extra concessions Saied extracted between the trio’s first visit in June and that of 16 July. It could have been more money or more likely changes to the modality of payment, with the EUR 150 million of budget support particularly appealing to a man in his position. It was perhaps the wording of the agreement that was adapted, now stating explicitly that Tunisia is not a place for settlement of “migrants in an irregular situation” and that it only guards its own borders – while it agrees to the opposite.
An agreement that’s not an Agreement
The agreement is typical of contemporary migration cooperation, a classic of the genre even. First, in terms of format and process, informality prevails. It was negotiated in a non-transparent way with an authoritarian leader and takes the form of a Memorandum of Understanding, a favoured format in migration cooperation, along with statements and Standard Operating Procedures. These are non-binding political agreements which are used to avoid the EU making a formal international agreement or treaty, which would require following the process set out in the Treaties. Depending on the subject matter, the European Parliament is involved, and the agreements fall within the jurisdiction of the CJEU and may thus be subject to legal challenge. Non-agreement agreements such at MoUs are designed to bypass these procedures and to be non-justiciable. It is a form of unlawfulness – expressly operating outside recognised legal frameworks. In any case, as with the EU-Turkey Statement, the real agreement is not what’s on the paper.
Other typical elements include the rank hypocrisy of dressing up the approach in the language of human rights and the persistent reference to tackling the evil smugglers. On the former, far from preventing violations or operating with the famous “full respect for” human rights, the agreement is likely to increase human rights violations – a rather predictable outcome when engaged in old-school “train and equip” in repressive regimes, which is one of the main elements in the migration pillar. In security policy, including the EU’s own concepts used in CSDP, the risks attached to reinforcing state institutions are at least recognised, with reference to the need to ensure reform and oversight of the security or law enforcement agencies being trained and equipped. In migration cooperation, anything goes. In terms of smuggling, this is perhaps the least effective battle ever mounted. The more restrictions Europe puts in place, the more money smugglers make – and the more violent, organised and sinister the criminal groups attracted to the business.
Quo vadis EU external action?
Despite these very standard elements the agreement does offer some new insights, mainly into the current state of EU foreign policy and more generally what we have become in Europe. The agreement is a “Team Europe” initiative. Or sort of. According to the press statements it is in the “spirit” of Team Europe, an even vaguer concept. Team Europe is essentially is a vehicle for joint EU and Member State action, whereby some configuration of EU and Member State institutions and agencies put together projects, loosely within a development framework which draw on EU external funds. It is an effort to ensure collective European international action, which is not wrong in itself. The perennial “coherence” problem of European foreign policy is the presence in a particular country of multiple difference European actors – EU institutions, plus Member States’ ministries and agencies, often pulling in different directions, competing while spending time “coordinating”, and prone to be played off against each other by canny local politicians.
The coherence problem persists because the dream of some that the Lisbon Treaty would create a new era where Member States work through the European External Action Service (EEAS) and bilateral foreign policy fades into common European action is so far from reality that it seems hard to believe that it was considered a serious prospect. Instead, in many third countries, the Member States have bolstered their presence and the EEAS is an additional actor, a 28th European player, for instance, in a country like Morocco where all Member States have diplomatic representation. In this crowded field, Team Europe – along with EU Trust Funds, joint programming and so on – is a new form of collective approach with an EU stamp.
The risk of Team Europe as demonstrated by the events in Tunisia is that the EU becomes a tool for Member States’ interests and the objectives of EU external action are ignored or eclipsed. Here, Meloni and Rutte are scoring political points by showing their domestic constituencies that they can access EU funding for anti-migration actions, and that they are at the heart of the deal-making. For Von der Leyen, this is presumably the geopolitical Europe she spoke about: interests not values, and the Commission demonstrating its value to the Member States by serving their interests. It’s all a long way from Article 21.
It’s also interesting who is not in the pictures: the MoU was signed by Commissioner Várhelyi, as Commissioner for the Neighbourhood and giving him a prominent role in the PR would have created a certain symmetry. Politicians, NGOs and commentators have all rightly criticised the racist rhetoric of Said and Tunisia’s mistreatment of migrants, including recent incidents of leaving people stranded in the desert without provisions. Yet any sense of superiority would be misplaced: the Commissioner hails from a country whose leader’s anti-refugee policies are suffused with racist and Islamophobic rhetoric and have included denial of food as a tactic. Last month, the CJEU again ruled that Hungary’s policies – in this case the “embassy procedure” – are an illegal denial of access to asylum. The Commission struggles to respond to the constant and flagrant violations of EU and international law by the Member States.
In this context, it is not surprising that the Neighbourhood Policy has been increasingly captured by migration control objectives in recent years, although it was always a policy that struggled. Without the leverage generated by the membership perspective which is the basis of the Accession process for the countries around the EU that are considered suitable for membership (the ones where the people are mainly white), rather than those that are close but not membership material, the EU has found it difficult to support reform, to generate security or to play a major diplomatic role in the neighbourhood. As in relations with Turkey, the migration issue is now having a strongly distorting effect, creating transactional relationships and handing considerable leverage to the partner country, which needs only to threaten to let people leave in order to extract concessions. It is unsurprising that migration cooperation works best with more repressive leaders.
Another insight is that the players in this Team Europe configuration also embody the new alliance that is shaping EU asylum and migration policy and law, bringing together a hardened centre right and the far right. In the ongoing reform of EU asylum law, the positions of the two co-legislators have been shaped by informal and formal cooperation across the right. The European Parliament’s position, for instance, is far less supportive of the right to asylum compared to the last Parliament’s not because of an increased presence of the far right but because of the ever more hardline position of the EPP. In the post-Merkel era the centre does not hold.
Will all of this work?
Some would argue that the EU seeking to be a normative power – in the sense of promoting rights and values in its foreign policy rather than in the sense of being a model for others to follow – was a hubristic and hypocritical enterprise in any case. Efforts to support reform haven’t worked and are just condemned by other countries as Europeans lecturing. Along these lines, the follow-up to the Tunisia mission was the migration conference in Italy where Meloni announced a “new” approach based on true partnership, as – like a thousand political leaders before her who make their first forays into international affairs – she has realised that leaders from other countries don’t like to be patronised and criticised by Europeans.
While there are multiple valid critiques of European development and normative foreign policy, the current alternative – external policy dominated by Member States’ self-destructive anti-migration objectives – hardly seems like a recipe for success. It also involves the imposition of a European agenda with scant regard for the needs and interests of the people in the countries affected, led alone those of people forced to flee to or through those countries. Even in their own terms, the policies are often counter-productive, generating more displacement or drawing funds away from the actions that might actual address the reasons people have to leave, such as insecurity and poverty. Even in the short term, they often don’t work to stop people leaving.
In Tunisia, for instance, it seems unlikely that the new agreement will meet its underlying objective of preventing people from coming to Europe. Part of the evidence for this is that these policies are already in place there and not working. The EU and European governments have already provided hundreds of millions of Euro for efforts to prevent people leaving, including reinforcing the border agencies. As analysis of ECRE and other shows, in Tunisia, as for all other countries, it is impossible to even trace exactly how many millions Europe has provided for migration management, let alone to evaluate its effectiveness. Some indication is provided by interesting local research. Nonetheless, however many millions have gone in, so far this year 45,000 people have crossed from Tunisia. The Tunisian authorities did rescue or prevent departures of another 14,000 so perhaps this is counted as a success.
There are positive elements in the agreement which should not be ignored – strengthening Search and Rescue (SAR) efforts leads to more people being rescued, and a new element is concrete commitments on mobility, usually a priority for partner countries. The paradox is that even the positive efforts are based on Europe attempting to deflect responsibility to Tunisia.
Improving the functioning of SAR is positive in theory but Europe’s prime responsibility is to meet its own SAR responsibilities, be that delivered by nations or under the EU’s auspices. In Tunisia as in Libya or Turkey it bolsters SAR of the partner in order to avoid rescuing people, all while cracking down on the NGOs that step in. There is also the small matter of what faces rescued people on land which gets to the heart of the counter-productive policies of externalisation.
While Team Europe seeks to evade and deflect responsibility for people seeking protection, a country like Tunisia has no incentive at all to develop its own asylum system or to improve treatment of other migrants. Efforts to outsource responsibility have a gelling effect on the countries around Europe which fear that any semblance of a protection system will increase European efforts to push people on them. In addition, Europe’s dependence on these countries as part of the transactional approach allows for violations of people on the move, including refoulement, to take place unremarked.
The situation in Tunisia is extremely precarious; the economic situation is dire and a collapse of the state would have a negative effect above all on Tunisians. Migrants and refugees in the country are also in a very vulnerable position. While the EU is not going to “save” Tunisia, it could be play a constructive and supportive role along with other international partners. Using the situation to further its own interests in prevention of migration is hardly helping.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)