Blog post by Chiara Scissa, Postdoctoral Research Fellow at University of Bologna Alma Mater Studiorum.*
This blog maps out the key features of externalization policies between the EU and its Member States with strategic African countries. Because of their key role in EU external action, the analysis is carried out with reference to Libya, Tunisia, and Niger. The paper then investigates the role of Courts in different countries and continents in tackling EU externalization policies as well as the difficulties encountered in exercising judicial control over them. It concludes that political challenges play a major role in shaping national and supranational Courts’ position towards the legality of externalization policies.
International cooperation as the new frontier of externalization?
Externalization – defined as “the process of shifting functions normally undertaken by a State within its own territory so they take place, in part or in whole, outside its territory” – in the field of migration and asylum governance can take different forms, including a statement, a deal, a Memorandum of Understanding (MoU) or other non-legal shapes. Similarly, projects and funds can also support the implementation of externalization policies.
In recent years, cooperation and humanitarian aid have been also used as tools to prevent migration flows. In the context of the European Union (EU), the use of informal cooperation mechanisms as a tool of informal externalization and readmission was formalized at the end of 2021 through the Operational Coordination Mechanism for the External Dimension of Migration (MOCADEM), which is based on the Council Implementing Decision (EU) No 2018/1993. This established the Integrated Political Crisis Response Mechanism and ensures the coordination and implementation of the EU’s external migration policy. The realization of this mechanism was anticipated by the European Council’s conclusions of 16 December 2021, where the need to “closely monitor and, if necessary, give further impetus to the rapid and effective implementation of the EU’s external migration policy” was expressed. It is relevant to note that none of the MOCADEM files are publicly available. The information derived comes from leaked documents from the European Council, which were obtained and disseminated by migration-control.info and Statewatch.
In the document of 30 December 2021 establishing the MOCADEM, the Council emphasised the importance of using all available means pertaining to any relevant policy area as leverage to achieve the EU external policy’s objectives in the field of migration. The Council document described operational actions as “Any action which, in the context of the EU’s relations with third countries, can contribute to the achievement of the Union’s objectives in the field of migration, including: a political or diplomatic approach; an action in support of the third country concerned, including capacity building or humanitarian aid; the mobilisation of all available leverage, e.g. financial support or visa management or other policy areas”.
Since then, the EU has produced MOCADEM action plans and implementation reports related to four African countries which are key to the Central Mediterranean route. These are Tunisia, Niger, Egypt, and Libya. At the national level, Italy has a long track record of agreements with these countries in the field of cooperation over migration control and prevention. The following sections dive into key forms of externalization policies, including MOCADEM, at the EU and national levels with Libya, Tunisia and Niger.
Externalization policies in Libya
The MOCADEM file regarding Libya agreed on 11 January 2023 and divulged by migration-control.info states that, “The difficult situation for migrants in Libya and the increase of irregular departures across the Mediterranean call for more EU action.” Yet, the objectives foreseen to ameliorate the current situation in Libya revolve around a more effective Libyan border and migration management, the prevention of irregular departures and the reinforcement of search and rescue capacities of the Libyan authorities. These activities in the hand of the Libyan coast guard have been harshly criticized by scholars and civil society organizations (CSOs) for impinging the fundamental rights of migrants, including access to asylum and the principle of non-refoulement. In particular, the EU has been accused of supporting pullbacks in Libya through the MOCADEM, continuing the trend of informal readmission financed since 2017 through the EU Trust Fund for Africa. In addition, the MOCADEM document notes that “[…] it is crucial to continue addressing the root causes of irregular migration in countries of origin of migrants transiting through Libya through NDICI/Global Europe and other funding.” The NDICI/Global Europe funds have been similarly contested for diverting development and cooperation funds to initiatives aimed at curbing migration and containing refugees out of the EU (for instance, here and here).
Externalization policies in Libya have been long implemented not only by the EU but also by its Member States. Italy, in particular, has promoted informal bilateral arrangements with Tripoli since the 2009 Treaty on Friendship, Partnership and Cooperation, which also aimed at controlling irregular immigration via patrol operations and interception of boats at sea. Such operations, which often resulted in migrants’ refoulement back to Libya, were censored by the European Court of Human Rights (ECtHR) in Hirsi Jamaa and others vs. Italy. In this landmark judgment, the ECtHR found Italy responsible for the expulsion of migrants under its de jure and de facto control and for exposing migrants returned to Libya to treatments contrary to Article 3 of the European Convention of Human Rights.
As Italy was aware that pushbacks operated by Italian vessels would have been condemned by the ECtHR, the Italian government sponsored the 2017 Italy-Libya MoU on Development Cooperation, Illegal Immigration, Human Trafficking and Reinforcement of Border Security. Through this framework, it provided the necessary technical, technological and financial support to the Libyan coast guard so to enable Libyan authorities to curb migration flows, intercept migrants at sea, and prevent departures with no direct involvement of Italian authorities.
Not only does the MoU makes no reference to the right to asylum, but it precludes the possibility of accessing asylum in Italy by containing migration in Libya. In addition, Libya cannot be considered as a safe country where migrants can be returned to, as it has no national law on asylum and is not party to the 1951 Refugee Convention or to its 1967 New York Protocol, and applies the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa very restrictively. Whereas the EU Court of Justice (CJEU) has never had the opportunity to scrutinize the validity of migration agreements between the EU and Italy with Libya, in light of their lack of legal force, the MoU Italy-Libya has been challenged once again in front of the ECtHR in S.S. and Others v. Italy, which is currently pending.
National courts and tribunals in Italy and Libya have also addressed the issue, however with different results. Indeed, judicial authorities in Italy have repeatedly found the MoU in violation of migrants’ human rights. In 2019, the Tribunal of Trapani ruled that the MoU was unlawful as it was not ratified by the Parliament. It also found that it did not respect binding commitments under the international law of the sea, and violated basic human rights. More recently, the Court of Cassation found Italy responsible for collective expulsions to Libya. Handing over migrants to the Libyan coast guards and deporting them to an unsafe third country violated Italy’s constitutional and international obligations under human rights law and the international law of the sea.
In March 2017, the MoU was also challenged by six Libyan plaintiffs before the Tripoli Court of Appeal, which is an administrative Court in Libya. As the Court of Appeal found the MoU to raise several concerns – including the lack of capacity, sovereignty, and the respect of human rights – it ordered its temporary suspension. On appeal, the Libyan Supreme Court ruled that the previous ruling issued by the Tripoli Court of Appeal was to be annulled due to the lack of functional jurisdiction. Indeed, the Supreme Court argued that the MoU was not an administrative act, but rather a “sovereign act”, which cannot be reviewed by an administrative Court. The Supreme Court declared the case inadmissible and closed the case. According to Achour and Spijkerboer, the Libyan Supreme Court used technicalities to avoid going into the substance of the case, which would have had dramatic political consequences. Indeed, judicial authorities would have had to declare which one of the rival governors of Libya had the power to sign the MoU as the legitimate President of the country.
Externalization policies in Tunisia
Cooperation between the EU and Tunisia on migration was ramped up after the Arab Spring in 2011. In particular, the EU Trust Fund for Africa has financed projects, such as the Mobility Partnership concluded in 2014 within the framework of the EU-Tunisia Action Plan 2013 – 2017, aimed at preventing irregular departures from Tunisia with also a focus on readmission and deportation. In recent years, EU funds have pervaded asylum and migration governance in the country. Indeed, nearly all activities related to asylum and protection in Tunisia are funded by the EU. An analysis of the activities related to migration funded by the EU in Tunisia allows us to understand the true EU priorities in the country. Border management accounts for 57.8% of the total EU budget, whereas 6.8% is allocated to refugee protection. In addition, the EU-Tunisia MoU signed in 2023 further addresses cooperation on migration control, prevention of departures by sea, the fight against migrant smuggling and trafficking as well as the return of migrants from Tunisia to their countries of origin.
In such a context, the lack of a national asylum law seems to be a direct response to EU externalization policies in Tunisia. The Tunisian government is concerned that passing an asylum law which would make Tunisia a migration hotspot, and then increase its burden in the field of migrants and refugees’ reception, protection and integration. It also fears that UNHCR would hand over the RSD procedure to national institutions, thus further increasing the government’s responsibility in the asylum sphere.
At the national level, Italy was the first Member State to conclude confidential agreements with Tunisia on migration control cooperation that also covered the prevention and repression of illegal immigration, readmission and return. These arrangements have however not been made public, such as the 2003 Police Cooperation Agreement that allegedly aimed to train the Tunisian police forces in controlling its maritime border against illegal migration. Through a decree adopted on 4 October 2019, and entered into force on 22 October 2019, the Italian government included Tunisia among the national list of safe third countries of origin, hence providing for accelerated procedure and less safeguards for protection claims lodged by migrants coming from there. Whereas once again the CJEU has remained silent on the topic, Italian tribunals have over time banned the removal of migrants back to Tunisia on the basis that it cannot be considered as a safe third country (See, among others, Tribunale di Lecce, decreto del 16.05.2024; Tribunale di Catania, decreto del 4.05.2023; Tribunale di Cagliari, decreto del 3.11.2022; Tribunale di Bologna, decreto del 18.09.2023; Tribunale di Firenze, decreto del 20.09.2023; Tribunale di L’Aquila, decreto del 26.02.2024; Tribunal di Roma, decreto del 7.10.2022; Tribunale di Napoli, decisione del 12.09.2022). In particular, the Tribunal of Catania reiterated that although the applicant coming from a safe third country of origin holds the burden of proof to explain the subjective or objective reasons for which the country cannot be considered safe, the judge has nevertheless the duty to acquire, inter alia, updated information on the socio-political situation of the country. Given the current socio-political unrest in Tunisia, the Tribunal found it to be an unsafe third country for the claimant.
Externalization policies in Niger
Niger – a key country of transit of migrants heading to Libya, Algeria and the EU – has long been at the core of EU externalization policies shaped through financial, judicial and political arrangements. Among these, the Emergency Transit Mechanism (ETM) is a multi-stakeholder framework for cooperation in force since 2017 between Niger, UNHCR, IOM and several EU Member States, and is funded by the EU. Within this framework, UNHCR identifies vulnerable refugees kept in detention centers in Libya and in need of international protection who are then transferred to Niger and mostly resettled in another third country. According to Tinni, Djurovic, Djurovic, Hamadou, Ineli-Ciger, Ovacık, Raach, Sha’ath, Spijkerboer and Ulusoy, given the EU’s involvement in supporting pullbacks to Libya in the first place, “Taken together, the EU supported projects result in the interception of people on the high seas; their transport to Libya where they are exposed to inhuman treatment; and their subsequent transportation to a third country (Niger).”
EU externalization policies also had an impact at the domestic level in Niger. Following the 2015-2020 EU-Niger Action Plan against Migrant Smuggling, Niger has adopted the Law 36/2015, which links irregular migration and the transportation of migrants and refugees to the crime of trafficking in human beings. Niger has since then deported foreigners from the country accused of human trafficking. In May 2022, a CSO has brought Niger in front of the ECOWAS Court of Justice and accused the government of deporting regular and irregular migrants, asylum seekers and refugees in violation of the principle of non-refoulement under the African Charter and the freedom of movement under the ECOWAS treaty. The case is currently pending.
Finally, the MOCADEM Action File Niger enacted in February 2022, and first published by Statewatch, enshrined specific objectives in the field of migration governance, including the need to establish and implement a comprehensive migration policy through, once again, the strengthening of border management capacities on a permanent basis.
Concluding remarks
EU’s externalization policies in Africa have over time evolved and expanded through a wide array of policy domains, instruments, and institutions. Recently, MOCADEMs have been added to the list of quasi-legal arrangements through which the EU coordinates its external actions concerning migration containment in strategic African countries. As seen, MOCADEM’s intent, underlying actions, and funding raise severe concerns as well as the fact that none of the files related to such mechanisms are made public. At the same time, informal bilateral agreements are pushing returns to countries where the integrity of migrants cannot be secured.
Soft-law or quasi-legal mechanisms between the EU and its Member States with African countries have thus been harshly criticized for crystallizing informal externalization policies, which impinge the human rights of migrants, including the fundamental right to have access to asylum. Because of the lack of legal force, these arrangements have so far restricted the judicial scrutiny of the CJEU over their legality. National Courts and Tribunals of EU Member States, such as in Italy, seem to be in a better position to engage with externalization policies as they can scrutinize the legitimacy of externalization policies and norms implemented at the national level. At the same time, African Courts and Courts of Justice in Africa’s Regional Economic Communities may play a key role in tackling EU externalization policies implemented at the national level in African countries. Yet, political challenges may hinder their action as in the case of Libya. The fact that, following the coup, Niger announced its intention to withdraw from ECOWAS might also undermine the relevance of a potential judgement by the ECOWAS Court of Justice against acts of deportation undertaken by the country.
* This blog is part of the research project ERC 2022-STG Gatekeepers to International Refugee Law. – The Role of Courts in Shaping Access to Asylum (Grant Agreement n. 101078683). It was also produced as part of the ‘Refocus: An Online Summer Forced Migration in Africa Workshop Series’ which ran in April 2024. To listen back to all four sessions, follow this link to our Spotify channel.
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