EuroMed, Migration and Frenemy-Ship: Pretending to Deepen Cooperation Across the Mediterranean (with E Basheska)

Electronic copy available at: http://ssrn.com/abstract=2549321

University of Groningen Faculty of Law

University of Groningen Faculty of Law Research Paper Series No. 15/2015

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection Available at SSRN: http://ssrn.com/ abstract=2549321

EuroMed, Migration and Frenemy-ship: Pretending to Deepen

Cooperation across the Mediterranean

by Elena Basheska and Dimitry Kochenov

January 2015

Electronic copy available at: http://ssrn.com/abstract=2549321 Electronic copy available at: http://ssrn.com/abstract=2549321

1

EuroMed, Migration and Frenemy-ship: Pretending to Deepen

Cooperation across the Mediterranean

Elena Basheska* and Dimitry Kochenov

**

This is a draft of a chapter written for F Ippolito and S Trevisanut (eds.), Migration in Mare Nostrum:

Mechanisms of International Co-operation, Cambridge: Cambridge University Press, 2015 (forthcoming). Please

kindly consult the volume, when published, for the final version.

This chapter provides a brief overview of the EU’s Mediterranean policy, to demonstrate that

it is too complex, haphazard and ineffective to be a real vehicle for controlling irregular

migration in the region. The poor incentives offered to the partners make improvements on

the ground difficult and the heavy reliance on conditionality is inexplicable in a situation

where the ‘shared’ core values are a mere rhetorical statement, rather than an empirically-

grounded observation. Conditionality and help with democracy, human rights protection and

the rule of law naturally turn into unfriendly acts aiming at regime change in this context.

Unable to affect the root-causes of migration, owing to misconceived value-laden

assumptions and dysfunctional policy, the EU suffers from the fruits of its own incapacity and

indecision: mare nostrum is a mass grave. Worse still, the EU’s own adherence to its stated

values when dealing with irregular migrants is overwhelmingly problematic and is in need of

profound reassessment.

‘fren·e·my noun [fre-nə-mē]: one who pretends to be a friend but is actually an enemy’.1

Introduction

This chapter traces some key steps in the development of the Southern Mediterranean

dimension of the EU’s foreign policy, placing particular emphasis on the goal of the effective

management of migration, which clearly emerges as one of the key aspects behind the

Union’s haphazard and costly actions.2 Many a high-minded declaration notwithstanding, the

reality is sobering. The Mediterranean is a graveyard for migrants: wars rage in the EU’s

* Researcher Associate, University of Groningen, Faculty of Law.

** Professor of EU Constitutional Law, University of Groningen, Faulty of Law.

1 Merriam-Webster Dictionary.

2 See Commission, ‘A Dialogue for Migration, Mobility and Security with the Southern Mediterranean

Countries’ COM (2011) 292 final.

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2

neighbourhood and the stated adherence to common values of democracy, the rule of law and

human rights protection rings hollow in a situation where the policy of appeasing dictators

and securitising migration flows is marked by a failure of conditionality and the voiding of

values of any content.3 Such voiding is not only clearly observable in the claims that shared

values already mark EU–Mediterranean relations,4 which is plainly untrue. It is also evident in

the assumption that conditionality offering zero incentives can lead to regime change,5 while

being manifestly acceptable to the élites in charge on the other side of the mare nostrum. To

be added to this, crucially, the EU’s own resounding failure to introduce a rule of law and

human rights dimension in dealing with the constant flow of non-seaworthy vessels filled with

desperate people.6 The EU falls short of being consistent in taking its own values into

account.

At the meta-level, two key drawbacks emerge. Firstly, the EU has failed to create an

effective policy vis-à-vis the Southern Mediterranean countries capable of promoting actual

change in those countries or tackling the root causes of migration, or indeed a policy

formulated in any way coherently if assessed honestly. Secondly, the EU has failed to shape a

migration policy which is sufficiently open to give Southern Mediterranean migrants a fair

chance not to be thrown into the abyss of illegality. Illegality is the product of the EU’s law

and policy, which undermines the successful development of the Mediterranean region and

ruins lives.7

To substantiate this view of the EU’s Southern Mediterranean dimension this chapter

splits into four parts. The first part introduces migration as a fundamental element of Euro-

Mediterranean relations, also recalling the key values underlying the Mediterranean

dimension of EU foreign policy. The second part focuses on a restatement of the

Mediterranean policy’s evolution – in line with Francesca Ippolito’s contribution to this

volume – and critiques this policy, demonstrating its inherent inconsistency, short-

sightedness, problematic foundations and numerous duplications ruining its clarity and

chances of success. The third part turns to migration again, looking at the failures of the

policy from this specific angle, while the fourth part delves into the EU’s fundamental failure

to shape an effective Mediterranean policy, outlining the key drawbacks concerned with the

EU’s inability to broker change in the countries concerned which could affect the root-cause

of irregular migration, as well as with the EU’s inability to adhere to its own values in

regulating migration in the Mediterranean, which could be yet another facet of EU’s justice

deficit and the overwhelming securitisation of migration flows. The conclusion draws

attention to the most fundamental problems outlined in the context of this chapter’s analysis:

the EU’s interest in the Southern Mediterranean’s transformation is unquestionably half-

hearted, its policies haphazard and illogical, and its adherence to the values of democracy, the

rule of law and human rights – merely rhetorical. Even on the strength of the most optimistic

3 D. Kochenov, ‘The ENP Conditionality: Pre-accession Mistakes Repeated’ in E. Tulmets and L. Delcour (eds.),

Pioneer Europe? Testing EU Foreign Policy in the Neighbourhood (Nomos, Baden-Baden, 2008), 105‒120. 4 Commission, ‘European Neighbourhood Policy - Strategy paper’ (Communication) COM (2004) 373 final, 7.

5 N. Tocci, ‘Can the EU Promote Democracy and Human Rights through the ENP? The Case for Refocusing on

the Rule of Law’, in M. Cremona, Marise and G. Meloni (eds.), ‘The European Neighbourhood Policy: A

Framework for Modernisation?’, EUI Working Paper Law 21 (2007), 26. 6 See in particular, the findings of the ECtHR in Hirsi Jamaa and Others v. Italy, Application No. 27765/09. See

also, the findings of the UN Special Rapporteur on the human rights of migrants, François Crépeau; also

‘Regional study: management of the external borders of the European Union and its impact on the human rights

of migrants’ UN Doc. A/HRC/23/46 (2013), (UN Report). Application No. 27765/09. 7 The EU’s migration policy is as complex as it is restrictive. For an analysis, see e.g., D. Kochenov and M van

den Brink, ‘Pretending There Is No Union: Non-Derivative Quasi-Citizenship Rights of Third-Country Nationals

in the EU’ in D. Thym and M. Zoetewij Turhan (eds.), Degrees of Free Movement and Citizenship, (Martinus

Nijhoff, The Hague 2015), forthcoming.

3

accounts, the EU and the Southern Mediterranean emerge as frenemies, undermining the

possibilities for deepening cooperation and adherence to common values.

1. Good neighbourliness, migration and values

Migration is one of the fields in which the EU has put special emphasis in its relations with its

neighbourhood. This should not be surprising given that ‘[n]eighbours play a key role in

migration flows to the EU, either as countries of origin or transit countries’.8 Moreover,

successful management of migration is an important aspect of the good neighbourly relations

between states. As noted by Fulvio Attinà

[c]ountries find a neighbour’s action and inaction on a cross-border problem

directly affect their own policies. The decision to adopt an action divergent from

the neighbour’s action can aggravate the problem suffered by two states while

inaction can either aggravate or drop into the neighbour’s territory the problem of

the inactive country. To provide states with political stability, people with

personal security, societies with economic growth, and groups with social and

cultural protection, cooperation with neighbouring countries is of the greatest

importance to national policymakers.9

The duty of states to cooperate in preventing uncontrolled migration could thus be

seen as an expression of the good neighbourliness principle as established in international

law.10

Hailbronner, for instance, argues that the obligation to readmit third-country nationals

which forms a part of many readmission agreements is rooted ‘in the principle of

neighbourliness and the responsibility of a state for those impairments to other states

emanating from its territory’.11

Although the irregular12

crossing of borders is not sufficient to

create an obligation under international law as such, this is not the case when ‘a state

intentionally or negligently promotes massive illegal entry of third state nationals into the

neighbouring state or tolerates such entry from its territory’.13

In accordance with established

international law, states must refrain from domestic activities that can have harmful effects on

the territory of a neighbouring state and should act with due care or diligence according to the

facts and circumstances in each case, taking all appropriate measures to prevent harm to other

states. This is an important aim to be achieved in the relations between the EU and its

Mediterranean neighbours – to make Mediterranean countries cooperate and manage

8 L. Delcour, ‘The European Union: Shaping Migration Patterns in its Neighbourhood and Beyond?’ in D.

Kochenov and F. Amtenbrink (eds.), The European Union’s Shaping of the Legal International Order

(Cambridge University Press, 2013), 261–282, 262. See also Commission, ‘The Global Approach to Migration

and Mobility’ (Communication) SEC (11) 1353 final. 9 F. Attinà, ‘The Euro-Mediterranean Partnership Assessed: The Realist and Liberal Views’, European Foreign

Affairs Review, 8 (2003), 181–200, 186 et seq. 10

With regard to the good neighbourliness principle in International law, see in detail I. Pop, Components of

Good Neighbourliness Between States – Its Specific Legal Contents – Some Considerations Concerning the

Reports of the Sub-Committee on Good-Neighbourliness Created by the Legal Committee of the General-

Assembly of the United Nations (Editura R.A.I., Bucharest, 1991), 67. See also E. Basheska, The Good

Neighbourliness Principle in EU Law’ (PhD thesis, University of Groningen 2014). 10

C. Wilfred Jenks, Law in the World Community (David McKay, New York, 1967), 92. 11

K. Hailbronner, ‘Readmission Agreements and the Obligation of States under Public International Law to

Readmit Their Own and Foreign Nationals’, Zeitschrift für ausländisches öffentliches Recht und Völkerrect, 57

(1997), 31. 12

The term ‘irregular’ rather than ‘illegal’ (migration) is used throughout this chapter in accordance with the

recommendations of the UN Special Rapporteur on the human rights of migrants – see UN Report (n 6) 9. 13

Hailbronner (n 11).

4

migration effectively in order to avoid massive migration flows to the Union. Indeed, the

‘desire to put a brake on immigration to Europe’14

is said to be one of the fundamental reasons

for the initial establishment of the Euro-Mediterranean partnership.15

However, such

cooperation must be framed within a system of ascertained values in accordance with law.

The EU’s relations with neighbouring countries are more generally defined in Article

8(1) of the Treaty on European Union (TEU). In particular, ‘the Union shall develop a special

relationship with neighbouring countries, aiming to establish an area of prosperity and good

neighbourliness, founded on the values of the Union and characterised by close and peaceful

relations based on cooperation’.16

To that end, Article 8(2) TEU allows the Union to conclude

‘specific agreements’ with neighbouring countries which can contain reciprocal rights and

obligations and the possibility of joint activities. The practical application of this provision so

far has been somewhat problematic, as it has not served as a legal basis for any international

agreements: the Union does not use it, notwithstanding its far-reaching potential.17

Its

dormant character notwithstanding, Article 8(1) TEU suggests that EU views good

neighbourly relations with third countries through the prism of its values under Article 2 TEU,

including ‘respect for human dignity, freedom, democracy, equality, the rule of law and

respect for human rights’ etc.

Recognising the weak performance of states in the fields of democracy, human

rights, good governance and rule of law as one of the main causes of irregular migration,18

the

EU has constantly repeated the importance of respect for fundamental values in its relations

with third countries.19

The Union is expressly obliged by virtue of Article 3(5) TEU20

to

safeguard and promote these values internationally.21

However, to quote Urfan Khaliq,

‘policy statements and legal obligations are one thing, implementation quite another’:22

the

EU is investing a lot into convincing its partners of the ethical essence of its foreign policy,

but it would be naive to be easily mislead: ‘first the grubs, then the moral’.23

Whether actually guided by the values it is preaching or not, the EU has developed a

wide range of migration instruments to tackle migration, as other chapters in this volume

equally demonstrate. Taking migration as a starting point, this chapter addresses the legal

14

J-P. Derisbourg, ‘The Euro-Mediterranean Partnership Since Barcelona’ in R. Gillespie (ed.), The Euro-

Mediterranean Partnership: Political and Economic Perspectives 2nd edn (Routledge, Abingdon, 2013), 9–11,

9. 15

Ibid. 16

Article 8(1) TEU [2010] OJ C83/1. 17

On the importance of this provision, see C. Hillion, ‘Anatomy of EU Norm Export towards the

Neighbourhood: The Impact of Article 8’ in R. Petrov and P. Van Elsuwege (eds.), Legislative Approximation

and Application of EU Law in the Eastern Neighbourhood of the European Union: Towards a Common

Regulatory Space? (Routledge, London, 2014), 13. 18

See, for instance, Commission, ‘A Dialogue for Migration, Mobility and Security with the Southern

Mediterranean Countries’ COM (2011) 292 final, (Commission’s Dialogue for Migration, Mobility and

Security), 2, where ‘significant movements of people’ (emphasis omitted) have been related to ‘[t]he historic

events that have occurred in the Southern Mediterranean since the end of 2010 [which] have provided unique

opportunities for the people of those countries to express more freely their wish for true democracy, respect for

human rights and fundamental freedoms, more impartial and better functioning state institutions and a fairer use

of public resources’. 19

See E. Herlin-Karnell, ‘EU Values and the Shaping of the International Legal Context’ in D. Kochenov and F.

Amtenbrink (eds.), European Union’s Shaping of the International Legal Order, (Cambridge University Press,

2013), 89–107. 20

See also Art. 21(1) TEU. 21

For an analysis, see J. Larik, ‘Shaping the International Order as an EU Objective’ in Kochenov and

Amtenbrink (n 19), 62–86. 22

U. Khaliq, Ethical Dimensions of the Foreign Policy of the European Union: A Legal Appraisal (Cambridge

University Press, 2008), 2. 23

F. Amtenbrink and D. Kochenov, ‘Conclusion: Messianism, Mission, or Realpolitik?’ in Kochenov and

Amtenbrink (n 19), 349–360.

5

framework of relationships between the EU and Southern-Mediterranean countries. In

particular, this is done through scrutinising the drawbacks of EuroMed and its overlaps with

the European Neighbourhood Policy (ENP) and the Union of the Mediterranean, which ruin

policy coherence and the success of implementation. Migration policy in the context of the

legal framework analysed suffers from a one-way highly securitised vision imposed by the

EU on its partners, which falls short of their obvious interests and undermines the

fundamental values upon which the cooperation between the partners is said to be established.

Moreover, the Union itself undermines its own values by securitising migration without

paying due respect to the rule of law and human rights in its regulation, as well as through the

establishment of ‘fortress Europe’ and embracing the paradigm of the projection of illegality

in a context where the possibilities for legal migration are overwhelmingly limited. It is

unquestionable that the EU and the Member States are co-responsible for numerous deaths of

innocent migrants by embracing these lamentably deficient approaches, which undermine

what the Union stands for.

2. The legal framework of relations with the Southern Mediterranean neighbours:

Key developments

The EU had already started to define its relations with some Mediterranean countries in the

early decades of its existence (as the EEC),24

first by signing bilateral agreements25

and then

by launching a Global Mediterranean Policy.26

A new phase only came in 1995 with the

Barcelona Euro-Mediterranean Ministerial Conference, which became the starting point of the

partnership between the EU and Mediterranean countries, launching the EuroMed

framework.27

Stressing the strategic importance of the Mediterranean, the Barcelona Process

aimed at giving future relations between the EU and countries from that region ‘a new

dimension, based on comprehensive cooperation and solidarity, in keeping with the privileged

nature of the links forged by neighbourhood and history’.28

Such cooperation was to be based

on political, security, economic, social, cultural and human partnership between the EU and

24

In our analysis we do not focus on the decolonisation period, which marked a profound transformation of the

region of overwhelming importance. One country in particular, Algeria, went from being de jure part of the

Common Market to a third country: P. Tavenier, ‘Aspects juridiques des relations économiques entre la CEE et

l’Algérie’, RTD eur., 1972. 25

As noted by A. Jones, ‘Making Regions for EU Actions: The EU and the Mediterranean’ in L. Bialasiewicz

(ed.), Europe in the World: EU Geopolitics and the Making of European Space (Ashgate, Farnham/Burlington,

2011), 41–58, 44: ‘[b]y 1972 some fourteen preferential trade agreements had been signed between the EU and

Mediterranean states which, although reflecting a decade of piecemeal negotiations, in sum revealed the

potential influence that “EU” rope could exercise in the Mediterranean’. 26

The Global Mediterranean Policy was announced at the Council of Ministers meeting, held in Paris on 19–20

October 1972. The Global Mediterranean Policy was to be an answer to the needs for a global or overall policy

toward the Mediterranean region. In the words of A. Shlaim and G. N. Yannopoulos, ‘Introduction’ in A. Shlaim

and G. N. Yannopoulos (eds.), The EEC and the Mediterranean Countries (Cambridge University Press 1976),

4, the Global Mediterranean Policy was to be ‘a more systematic and coherent approach […] which would

(have) take[n] into account the problems and needs of the region as a hole’. On the pre-1995 initiatives, see D.

Enonnchong Egbe, The Global Mediterranean Policy: The Evolution of the EU-Mediterranean Countries

Relations During 1976-1998 (University of Missouri, 2000). For a rather critical approach see S. Brocza, ‘The

Failure of the EU’s Mediterranean Policies’ Current Concerns (2012), available at: <http://www.currentconc

erns.ch/index.php?id=1496> last accessed 20 September 2014. 27

Barcelona Declaration of the Euro-Mediterranean conference of Foreign Ministers from the region (27, 28

November 1995, available at <http://www.eeas.europa.eu/euromed/docs/bd_en.pdf> (Barcelona Declaration), last accessed 20 September 2014. 28

Ibid.

6

Mediterranean countries and to be achieved through multilateral dialogue in addition to the

bilateral dialogues provided by Euro-Mediterranean Association Agreements.29

The

Barcelona Declaration envisaged strong economic and financial incentives for Mediterranean

partners.30

It aimed at improvement of living conditions, increasing in the employment level

and reduction in the development gap in the Euro-Mediterranean region as well as

encouragement of regional cooperation and integration. To this end, the creation of a Free

Trade Area was envisaged by 2010.31

It is not among the goals of this paper to determine

whether the drafters were too optimistic or simply irresponsible. As could be predicted, the

envisaged plan did not go smoothly: the need for revitalisation of the Barcelona process was

already being signalled emphatically at the fourth Euro-Mediterranean Conference, re-

tweaking and fine-tuning the relationship.32

The European Commission, apparently

expressing surprise, recognised that ‘the ambitious goals of the Barcelona process’33

had

encountered a number of obstacles, including the slow process in negotiations and the

ratification of the various Association Agreements and the lack of results in the field of

human rights.34

However, despite the not so brilliant beginnings of the Barcelona process, the

Commission considered that the basic Barcelona strategy and its main instruments were still

worth relying on and decided to give the process, as it framed it, ‘another chance of

succeeding’.35

As early as 2003, however, a slightly different, parallel policy framework for the

EU’s relations with its neighbours was being outlined – the ENP,36

aimed to establish

‘differentiated relations with each Mediterranean country individually’37

and to create a ‘ring

of friends’ to ensure stability, prosperity and peace in the neighbouring countries engaged in

the process and acting in line with EU’s most fundamental goals.38

As we can now say

29

Ibid. 30

Until the end of 2006, MEDA (Mésures D’Accompagnement) was the EU’s main financial instrument for

supporting the Barcelona Process. This programme was replaced in 2007 by the European Neighbourhood and

Partnership Instrument (ENPI), which has been established ‘to provide […] assistance for the development of an

area of prosperity and good neighbourliness involving the European Union, and the (participating) countries and

territories’; see Regulation (EC) No 1638/2006 of the European Parliament and of the Council of 24 October

2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument,

[2006] OJ L310/1. 31

Barcelona Declaration (n 27). 32

Commission, ‘Reinvigorating the Barcelona Process’ (Communication) COM (2000) 497 final

(Reinvigorating the Barcelona Process). The need to revitalise the Barcelona process was emphasised by the

foreign ministers of the fifteen Member States and of Algeria, Cyprus, Egypt, Israel, Jordan, Malta, Morocco,

Tunisia, the Palestinian Authority and Turkey, who all participated at the fourth Euro-Mediterranean Conference

held in Marseilles on 15 and 16 November 2000. Foreign ministers from Libya and Syria refused to participate at

the conference. 33

Reinvigorating the Barcelona Process, ibid. 34

Ibid. Other difficulties enumerated by the European Commission included: difficulties encountered in the

Middle East peace process, which had slowed the work; reluctance of some countries to apply the specified

economic transition policy; low South-South trade volumes and low investments in certain countries; and

procedural problems in implementing the Euro-Mediterranean Partnership. 35

Reinvigorating the Barcelona Process, ibid. 36

See Commission, ‘Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and

Southern Neighbours’ (Communication) COM (2003) 104 final (Commission’s Communication on Wider

Europe). For analyses see e.g., E. Tulmets and L. Delcour (eds.), Pioneer Europe? Testing EU Foreign Policy in

the Neighbourhood (Nomos, Baden-Baden, 2008); D. Kochenov, ‘The Eastern Partnership, the Union for the

Mediterranean and the Remaining Need to Do Something with the ENP’, CRCEES Working Papers (Glasgow),

WP2009/1, (2009). 37

E. Tino, ‘The European Integration, the Arab Regionalisms and the Euro-Med Relations after the Arab Spring:

is the Pan-Euro-Mediterranean Free Trade Area a Viable Project Yet?’, paper presented at the Sixth Pan-

European Conference on EU Politics Tampere, Finland 13–15 September 2012. 38

Understood most broadly, the goals are reflected in Article 2 TEU.

7

without hesitation, it failed to achieve all of these goals. The ENP was initially designed to

deal with the EU’s neighbours in the East of the European continent: Russia, Ukraine, Belarus

and Moldova.39

However, this approach was unsatisfactory for Russia – which was seeking

engagement with the EU on somewhat ‘more equal terms’ back then40

– and for the Member

States traditionally interested in the Mediterranean region. Consequently, the geographical

scope of the policy was changed, first to exclude Russia from the list of ENP partner states

and secondly, to include the Mediterranean states.41

As a result, the ENP in the Mediterranean

coexists with the Barcelona process, while in Eastern Europe (excluding Russia) the ENP is

fused with the Eastern Partnership42

and regional initiatives.

With the inclusion of the Mediterranean countries in the ENP, the EU created an

overlapping policy space in the Mediterranean region where the Euro-Mediterranean

Partnership is being implemented. This overlap resulted in substantial confusion, since the

Mediterranean component of the EU’s foreign policy had already been developed to a great

extent through the EuroMed. In the Mediterranean the ENP built on the existing EuroMed

framework, where the multilateral component is strong, while in Eastern Europe such a

multilateral framework was missing.43

The ENP, although concerning a number of countries

in different regions, is not a multilateral policy.44

Moreover, the countries in Eastern Europe

and the Mediterranean have principally different expectations of their enhanced relations with

the EU, since European partner states make it absolutely clear that their ultimate ambition is

to join the EU as fully-fledged Member States in the future. In other words, although a unified

policy which applies to all the neighbouring states can be praised in theory, in practice it

comes down to trying to unify what cannot be possibly fit under one roof. In this context, the

desirability of the initial unification of the Mediterranean countries covered by the EuroMed

and the Eastern European partners within a single policy is rationally inexplicable. A direct

consequence of the basic choices made with regard to the geographical scope of the ENP is

39

These were the only countries named in the September 2002 letter of Chris Patten (then External Relations

Commissioner) and Javier Solana (the High Representative for the CFSP) which laid the foundation for later

consideration of engaging neighbours in a special relationship with the EU. The letter was drafted at the request

of the GAERC, formulated in April 2002. Some scholars link the initial geographical scope of the policy with

the active position taken by Poland (then still a candidate country) vis-à-vis the East of the subcontinent. For

analysis see P. Kratochvíl, ‘New EU Members and the ENP: Different Agendas, Different Strategies’,

contribution to the forum ‘The Neighbourhood Policy of the European Union’, Intereconomics, (2007), 191. 40

Which ultimately resulted in the creation of the ‘Four Spaces’ first outlined at the EU Russia St. Petersburg

Summit in May 2003 and later articulated at the EU Russia Moscow Summit of May 2005 taking the shape of

Four Road Maps, available at < https://www.consilium.europa.eu/uedocs/cmsUpload/84815.pdf > last accessed

12 September 2014. Now, of course, relations have deteriorated and Russia is under sanctions following pressure

on Armenia de facto to leave the ENP and the war it started in Ukraine, a part of which it annexed by force. For

one of the first analyses, see A. Tancredi, ‘The Russian Annexation of the Crimea: Questions Relating to the Use

of Force’, Questions of International Law, 1 (2014). 41

Copenhagen European Council (12, 13 December 2002) Presidency Conclusions, 7. 42

See Joint Declaration of the Prague Eastern Partnership Summit, 7 May 2009, Prague, available at <http://

www.enpi-info.eu/library/content/joint-declaration-prague-eastern-partnership-summit> last accessed 12

September 2014; See also: Brussels European Council (19, 20 March 2009) Annex II to the Presidency

Conclusions ‘Declaration by the European Council on the Eastern Partnership’; Commission, ‘Eastern

Partnership’, (Communication) COM (2008) 823 final; Commission, Staff Working Document accompanying

Communication on the Eastern Partnership, SEC (2008) 2974/3. 43

The Commission ‘strongly encourages’ multilateralism in the Mediterranean and ‘considers’ it in Eastern

Europe: Commission’s Communication on Wider Europe (n 36), 8. The reasons for such differentiation lying

within the realm of Realpolitik are clear: Russia considers blizhneje zarubezh’je (the ‘near abroad’) as falling

within the scope of its strategic interests and is likely to dominate any integration projects in the region. For an

analysis see Delcour (n 8). 44

For a critical assessment of the bilateralism in the ENP in light of EU–Ukraine partnership see A. Lytvynyuk,

‘Is Bilateralism a Solution? The Case of Ukraine’ in M. Cremona and G. Meloni (eds.), ‘The European

Neighbourhood Policy: A Framework for Modernisation?’, EUI Working Paper Law 21 (2007), 137–146.

8

‘the cleavage between South and East [which] runs through all discussions on the ENP at the

working and political levels of the EU’.45

Substantively, the ENP had to cover an extremely broad range of issues, including

trade and economic integration, mobility and migration and dealing with regional conflicts.

The security component has played a leading role,46

given the obvious danger of ‘disorder

spilling across [EU] borders’.47

The policy was proclaimed as being aimed at uniting the

efforts of the EU and the ENP partners to create an area of peace and prosperity surrounding

the Union that will benefit all. One cannot help but wonder what common ground could

bridge the two or more worlds the ENP is concerned with, let alone the Member States’

inability to come to a compromise that would make sense. It could obviously not be economic

development, defence or any other concrete form of cooperation. ENP partners are not just

different; the differences between them are at times absolute. Consequently, the Commission

chose to play the old and overwhelmingly problematic card of ‘values’,48

exchanging

meaningful policy options for largely empty words in a situation where it largely had no

choice: there was no readiness among the Member States to do anything meaningful. It was

argued – and optimistically or reluctantly accepted by the partners – that they share with the

EU some values of significant importance.49

The values approach was deemed to soften the

perceived differences between the participants in the ENP and make the move together

towards certain goals possible. In fact, to participate in the policy the ENP partners were

supposed to subscribe to the values of the Union, which are also ‘common to the Member

States’.50

It clearly follows from the Commission’s statement that the values are shared, ‘but

apparently only by EU countries’.51

Speaking of shared values in such a diverse context is not

only cynical (of course, there is no problem with cynicism in the context of foreign policy),

but also counter-productive. The security component of the ENP failed entirely – in the

Crimea, with the response to ISIS, in Egypt, with Armenia pressured by Russia, and in

Ukraine plunged into war. Prosperity, peace and the ring of friends were rendered a farce:

worse performance cannot be conceived.

Beyond the questionable starting point of values, the substance of the policy was also

profoundly problematic, as it only offered very poor incentives to the partners – incentives

45

B. Lippert, ‘The EU Neighbourhood Policy – Profile, Potential, Perspective’, contribution to the forum ‘The

Neighbourhood Policy of the European Union’, Intereconomics, (2007), 180–204, 182. 46

On the analysis of the ENP from security perspective see M. Cremona and C. Hillion (2006) ‘L’Union fait la

force? Potential and Limitations of the European Neighbourhood Policy as an integrated EU foreign and security

policy’, EUI Working Papers 39 (2006). 47

W. Wallace, ‘Looking after the Neighbourhood: Responsibilities for the EU-25’, Notre Europe Policy Paper 4

(2003), 7. 48

These cannot be effectively protected by the EU even internally, where deviance in Hungary, Romania and

other Member States now undermine the apparently helpless Union from within. For an analysis of what can be

done in this context, see e.g. J-W. Müller, ‘The EU as a Militant Democracy, or: Are There Limits to

Constitutional Mutations within the Member States’, Revista de Estudios Políticos, (2014); C. Closa and D.

Kochenov (eds.), Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press,

2015) (forthcoming). 49

The Commission formulated these as follows: ‘the Union is founded on the values of respect of human

dignity, liberty, democracy, equality, the Rule of Law and respect for human rights. These values are common to

the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination. The Union’s

aim is to promote peace, its values and the well-being of its peoples’: Commission, ‘European Neighbourhood

Policy – Strategy paper’ (Communication) COM (2004) 373 final, 7 (Commission’s Strategy Paper). The earlier

formulation of the list of values on which the policy is based, which is contained in fn. 2 to the Commission’s

Communication on Wider Europe (n 36) was slightly different and included ‘democracy, respect for human

rights and the rule of law, as set out within the EU in the Charter of Fundamental Rights’. 50

Commission’s Strategy Paper, ibid, 7. 51

R. Zaiotti, ‘Of Friends and Fences: Europe’s Neighbourhood Policy and the “Gated Community Syndrome”’,

European Integration, 29 (2007), 143–162, 150.

9

that could not motivate the Southern Mediterranean countries to generate true change.52

Unlike the Eastern European ENP countries, Mediterranean states cannot even hope for the

potential prospect of EU membership. As far as the Mediterranean partners are concerned, the

existing framework of Euro-Mediterranean cooperation which lay at the foundation of the

ENP in the region, overlapping with the latter policy, provided a number of specific

incentives designed to meet the needs of the partners in the region. These were first outlined

in the 1995 Barcelona Declaration and then revised to become more attractive for the partners

in the 2005 Barcelona Declaration.

When set against the goals and incentives of the ENP, the partnership areas of the

EuroMed demonstrate a striking similarity with the neighbourhood policy, including the

achievement of a common area of peace and stability based on respect for human rights and

democracy;53

economic and financial partnership and the creation of a Free Trade Area

(FTA)54

with a view to achieving a zone of shared prosperity and, as the third component,

social, cultural and human partnership. Nonetheless, the EuroMed and the ENP are uneasy

bedfellows – they seem to be too much alike not to harm each other. Consequently, it is not

surprising that, as reported by Attinà, ‘the launching of the ENP caused discontent in the

governments and social sectors of the Mediterranean partners because it changed important

aspects of the EuroMed [diminishing the importance of its] multidimensional and multilateral

dimension’.55

Add to this the differing visions of the ENP espoused by each of the 28 Member

States and it becomes clear that the unattractiveness of the incentives on offer has systemic

explanations.56

It is true that ‘within the current EU there is no consensus on priorities to be

given to the eastern or southern neighbours, or on the trade or financial incentives which

should be offered’.57

Given that the EU itself does not have competences to conduct the ENP

without the Member States’ consent, the differences between the Member States’ positions

are bound to have important implications, dwarfing the policy’s potential.

On 6 May 2007 the French President Nicolas Sarkozy came up with a vague plan to

start a ‘Mediterranean Union’, which would incorporate the then EU-27, the EuroMed

countries and the candidate countries.58

His vague idea, apparently connected with a desire to

sell the new Union to Turkey as an alternative to EU membership in the context of his

presidential race,59

seems to ignore all of the current projects focusing on EU engagement in

52

N. Tocci, ‘Can the EU Promote Democracy and Human Rights through the ENP? The Case for Refocusing on

the Rule of Law’, in M. Cremona, Marise and G. Meloni, (eds.), ‘The European Neighbourhood Policy: A

Framework for Modernisation?’, EUI Working Paper Law 21 (2007), 23–36, 26 et seq.; A. Magen, ‘The Shadow

of Enlargement: Can the European Neighbourhood Policy Achieve Compliance’, Columbia Journal of European

Law, 12 (2006), 384–427, 411 et seq. (characterising the incentives as ‘both vague and uncertain at best’ (at

414)). 53

For an analysis of the effects of the EuroMed and ENP on democratisation see E. Baracani, ‘From the EMP to

the ENP: New European Pressure for Democratisation’, Journal of Contemporary European Research, 2 (2005),

54–66. 54

On the legal analysis of the process of establishment of the FTA see K. Pieters, ‘The Mediterranean Countries

(Morocco, Algeria, Tunisia, Libya, Egypt, Jordan, Syria and Lebanon)’ in S. Blockmans and A. Łazowski,

(eds.), The European Union and Its Neighbours: A Legal Appraisal of the EU’s Policies of Stabilisation,

Partnership and Integration (T.M.C. Asser Press, The Hague, 2006), 407–25. 55

F. Attinà, ‘EU Relations with the Southern Mediterranean Neighbours’, Intereconomics, (2007), 196. 56

For a telling illustration of the differences in the Member States’ approaches to the neighbourhood see M.

Natorski, ‘National Concerns in the EU Neighbourhood: Spanish and Polish Policies on the Southern and

Eastern Dimensions’, in L. Delocour and E. Tulmets, (eds.), Pioneer Europe? Testing EU Foreign Policy in the

Neighbourhood (Nomos, Baden-Baden, 2008), 57. 57

Wallace (n 47), 1. 58

On the Union for the Mediterranean story see F. Liberti, ‘The European Union and the South Mediterranean

Partners: L’Union pour la Méditerranée, a French Attempt to Refocus the EU Engagement toward the South’, in

Delocour and Tulmets (n 56), 93–102. 59

Ibid, 101.

10

the Mediterranean region. Moreover, the President came up with his ill-articulated proposal

without consulting other Member States and without presenting any real detailed blueprints

for the Union.60

Making no references either to the ENP or to the EuroMed, Sarkozy’s

initiative clearly aspired to create something new in the Mediterranean region, even though he

did not seem to have a clear idea of exactly what.61

Predictably, this unilaterally proposed,

vague project failed to gain the support of other Member States. Germany was especially

sceptical of the new, blurry initiative. Consequently, as France – which held the Presidency of

the Union at the time – proceeded with the development of the project, what the other

Member States agreed to support was not a new ‘Union’ but yet another update of the

EuroMed. France managed to gather all the Heads of State and Governments of the

Mediterranean partners in Paris at a 2008 July summit, which adopted a Common Declaration

for the Mediterranean on 13 July 2008.62

According to point 4 of this Declaration, the EU and

the partners were starting a ‘reinforced partnership – Barcelona Process: a Union for the

Mediterranean’. In other words, the initiative did not move away from the ENP but was

embedded in it instead. Agreeing with Liberti, ‘it is difficult to see at present how [the Union

for the Mediterranean] can succeed where its predecessor, the Barcelona Process, has

failed’.63

This is especially true because the newly-launched Union is not at all different from

the Barcelona process in substantive terms. Moreover, its goals, as formulated in the first

paragraph of the Paris Declaration, are identical to those of the EuroMed and the ENP.64

The EU’s failure to formulate any more or less meaningful policy vis-à-vis the

Southern Mediterranean, let alone ensure its effective implementation, is inexcusable. This

situation was bound to affect the regulation of sectoral fields, one of the most important

among them being migration across the Mediterranean.

3. The issue of migration

The question of migration was on the table at the initial Barcelona Euro-Mediterranean

Ministerial Conference and was included in the First Barcelona Declaration.65

Irregular

migration was associated to the poor economic development in the region. This question was

covered by the ‘Social, Cultural and Human affairs’ chapter of the Declaration.

Acknowledging the importance of the role played by migration in their relationships, the

participants at the conference agreed ‘to strengthen their cooperation to reduce migratory

pressures, among other things through vocational training programmes and programmes of

assistance for job creation’.66

They further undertook to guarantee protection of the rights of

migrants legally resident in their respective territories and to adopt provisions and measures,

through bilateral agreements or arrangements, for readmission of irregular immigrants.67

The important role played by migration in the EU’s relations with the Southern

Mediterranean countries was even more energetically emphasised in the following years.

Accordingly, since 1999 when the migration and asylum policies were officially moved to the

then first EU pillar with the entry into force of the 1999 Amsterdam Treaty, the European

Council has adopted three programmes on justice and home affairs: the Tampere Programme

60

Which made the German Chancellor Angela Merkel confirm to the Press on 7 December 2007 that ‘there will

not be a Mediterranean Union as the French President suggested’; as cited in Liberti (n 58), 98. 61

Liberti, ibid, 98, 99. 62

Déclaration commune du sommet de Paris pour la Méditerranée, 13 July 2008, Paris. 63

Liberti (n 58), 99. 64

‘Transformer la Méditerranée en un espace de paix, de démocratie, de coopération et de prospérité’. 65

Barcelona Declaration (n 15). 66

Ibid. 67

Ibid.

11

(1999–2004); the Hague Programme (2005–2009); the Stockholm Programme (2010–2014).

The most recent – EU Home Affairs agenda 2020 – has now also been proposed by the

Commission.68

The Tampere European Council in 1999 paved the way to the establishment of

a ‘Union of Freedom Security and Justice’ which was set in a five-year programme. The first

point of the Tampere Programme provided that the Union of Freedom, Security and Justice

was to be ‘based on human rights, democratic institutions and the rule of law’.69

The common

EU asylum and migration policy was to be based on partnerships with the countries of origin;

a common European asylum system; fair treatment of third country nationals and

management of migration flows. In the context of partnership with third countries, the EU

acknowledged the need for

a comprehensive approach to migration addressing political, human rights and

development issues in countries and regions of origin and transit. This requires

combating poverty, improving living conditions and job opportunities, preventing

conflicts and consolidating democratic states and ensuring respect for human

rights, in particular rights of minorities, women and children. To that end, the

Union as well as Member States are invited to contribute […] Partnership with

third countries concerned will also be a key element for the success of such a

policy, with a view to promoting co-development.70

Facing increased irregular migration flows, the EU came up with a number of important

documents in the following years. Therefore, in December 2002 the Commission adopted a

Communication which started to clarify the links between migration and development and to

promote coherence between the two.71

It emphasised three important aspects of cooperation in

the field of migration: the need for a balanced approach addressing the root causes of

migration; a partnership on migration based on common interests with third countries; and

specific and concrete initiatives which would assist third countries to increase their capacity in

the area of migration management.72

What has been ignored throughout is the EU’s

overwhelmingly restrictive approach to inward migration in general. For the absolute majority

of people in the Southern Mediterranean and further in Africa, legal migration to ‘fortress

Europe’ is not a realistic option. By making migration de facto impossible through legal

channels, the EU necessarily promotes irregular migration flows.

Despite the implementation of the Tampere Programme falling short of being

satisfactory,73

the second, the Hague Programme, which set new guidelines for the following

five years, was agreed by the Brussels European Council in 2004.74

The Hague Programme

was followed up by an Action Plan of the Commission which identified ten priorities

including fundamental rights and citizenship – creating fully fledged policies; the fight against

terrorism – working towards a global response; migration management – defining a balanced

68

See Commission, ‘An open and secure Europe: making it happen’ (Communication) COM (2014) 154 final.

The Commission’s communication was expected to contribute to the strategic guidelines adopted by the

European Council in June 2014; see Brussels European Council (26, 27 June 2014) Presidency Conclusions. 69

Tampere European Council (15, 16 October 1999) Presidency Conclusions, (Tampere European Council),

para. 1. 70

Tampere European Council (n 68), para. 11. 71

Commission, ‘Integrating migration issues in the European Union’s relations with third countries’

(Communication) COM (2002) 703 (Commission’s Communication on integrating migration issues). 72

Commission’s Communication on integrating migration issues (n 71). 73

E.g. J. Apap and S. Carrera, ‘Progress and Obstacles in the Area of Justice and Home Affairs in an Enlarging

Europe: An Overview’ in J. Apap (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after

Enlargement (Edward Elgar, Cheltenham, 2004), 1–24. 74

Brussels European Council (4, 5 November 2004) Presidency Conclusions.

12

approach; and integration – maximising the positive impact of migration on our society and

economy.75

While addressing almost the same topics as its predecessor, the Hague

Programme accorded high priority to security, ‘especially in the light of the terrorist attacks in

the United States on 11 September 2001 and in Madrid on 11 March 2004’.76

This, as put by

some authors, ‘has been a significant change in the values on which the EU’s AFSJ is being

built […] the “shared commitment to freedom based on human rights, democratic institutions

and the rule of law” as set out at Tampere, [was] not a cornerstone of its successor’.77

Further,

the European Agency for the Management of Operational Cooperation at the External Border

(FRONTEX) to manage external borders was established.78

A number of similar Communications were adopted by the Commission in the

following year,79

the most important being the ‘Global approach to migration: Priority actions

focussing on Africa and the Mediterranean’ attached to the Presidency Conclusions of the

Brussels European Council of 2005.80

The Global approach to migration became the main

framework for EU external migration policy. It ‘aimed to present a comprehensive strategy to

address irregular migration and human trafficking on the one hand, and to manage migration

and asylum through cooperation with third countries (origin and transit) on the other’.81

The

implementation of border management measures in the Mediterranean region through joint

operations and pilot projects were among the main means for increasing cooperation between

Member States. The emphasis, as noted by Barnard, has been ‘on keeping out “undesirable”

TCNs through international cooperation and dialogue with third countries, strengthening

cooperation among Member States […] and only then to develop well-managed migration

policies and promote integration’.82

The Stockholm programme which ran from 2010 until

75

Other priorities included: a common asylum area – establishing an effective harmonised procedure in

accordance with the Union’s values and humanitarian tradition; internal borders, external borders and visas –

developing an integrated management of external borders for a safer Union; privacy and security in sharing

information – striking the right balance; organised crime – developing a strategic concept; civil and criminal

justice – guaranteeing an effective European area of justice for all; and freedom security and justice – sharing

responsibility and solidarity. 76

Council of the European Union, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the

European Union’, [2005] OJ C53/1. 77

T. Balzacq and S. Carrera, ‘The Hague Programme: The Long Road to Freedom, Security and Justice’ in T.

Balzacq and S. Carrera (eds.), Security Versus Freedom?: A Challenge for Europe's Future (Ashgate, Aldershot/

Burlington 2006), 1–34, 5. 78

FRONTEX was created by Council Regulation (EC) 2007/2004 of 26 October 2004. It was later amended by

Regulation (EC) 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a

mechanism for the creation of Rapid Border Intervention Teams. For in depth analysis of the role and mission of

FRONTEX, see K. Franko Aas and H.O.I. Gundhus, ‘Policing Humanitarian Borderlands: Frontex, Human

Rights and the Precariousness of Life’ (2015) 55 Brit. J. Criminol. 1–18. 79

In 2005, the Commission adopted three migration-related Communications: Commission, ‘Migration and

Development: Some concrete orientations’ (Communication) COM (2005) 390 final; Commission, ‘A Strategy

on the External Dimension of the Area of Freedom, Security and Justice’ (Communication) COM (2005) 491

final; and Commission, ‘Priority actions for responding to the challenges of migration: First follow-up to

Hampton Court’ (Communication) COM (2005) 621 final. The first Euro-Mediterranean ministerial meeting

leading to the adoption of ministerial conclusions to increase cooperation in the field of migration was held in

2007 – European Council, ‘First Euro-Mediterranean Ministerial Meeting on Migration’, (18, 19 November

2007, Algarve). However, the Commission’s initiatives lacked further development in the following years, which

might have been a result of the economic crisis in the European destination countries having caused a decrease in

the migration flows – see e.g. G. Pinyol-Jiménez, ‘The Migration-Security Nexus in Short: Instruments and

Actions in the European Union’, Amsterdam Law Forum, 4 (2012), 36–57, 51. 80

Council of the European Union, ‘Global approach to migration: Priority actions focussing on Africa and the

Mediterranean’ (13 December 2005, Brussels) available at <http://register.consilium.europa.eu/doc/srv?l=

EN&f=ST%2015744 %202005%20INIT> last accessed 12 September 2014. 81

M. Martin, ‘The Global Approach to Migration and Mobility: The State of Play’, available at <http://www.

statewatch.org/analyses/no-215-gamm-state-of-play.pdf > last accessed 12 September 2014. 82

C. Barnard, The Substantive Law of the EU 4th edn (Oxford University Press, 2013), 552.

13

2014, continued this trend, reaffirming the principles set out in the Global Approach and

recalling the need ‘to control illegal immigration by ensuring that illegal immigrants return to

their countries of origin or to a country of transit’.83

In 2011, however, following the ‘Arab spring’ events, Global Approach to Migration

was renewed with a ‘Global approach to migration and mobility’,84

noting that mobility of

third country nationals within the EU is of strategic importance for linking and aligning

external and internal EU policies. The need ‘to take full account of the links between the

common EU visa policy for short stays, Member States’ national policies concerning long

stays and the Global Approach to Migration’85

has been defined as a ‘key reason to expand

the scope of this policy framework to include mobility, making it the Global Approach to

Migration and Mobility’.86

The ‘mobility partnership’ with third countries was to ‘be

upgraded and promoted as the principal framework for cooperation in the area of migration

and mobility between the EU and its partners, with a primary focus on the countries in the EU

Neighbourhood’.87

Such partnership is tailor-made and can offer visa facilitation based on a

simultaneously negotiated readmission agreement. The principle of conditionality is strictly

applied ‘as a way to increase transparency and speed up progress towards concluding these

agreements’.88

In return, ‘[a]n appropriately sized support package geared to capacity-

building, exchanges of information and cooperation on all areas of shared interest should be

offered by the EU and by Member States on a voluntary basis’.89

4. EU’s failed management of migration in the Mediterranean

In its relations with the Mediterranean countries the EU has constantly emphasised the need

for democratisation and respect for human rights, good governance and the rule of law. As

noted by the Commission, the EU is ready to support ‘all its Southern neighbours who are

willing to commit to democracy, human rights, good governance and rule of law, and to enter

into Partnerships with those countries to achieve concrete progress for the people’90

the

ignorance of which ‘ha[s] also induced significant movements of people’.91

However, in

practice, such support enjoyed less importance in comparison to the EU’s dominant interest in

cutting migration flows. However, none of the EU efforts in its fight against irregular

immigration and its attempts to establish successful cooperation have achieved their desired

results. The Mediterranean Sea has indeed become ‘a cemetery’92

for irregular immigrants

from Africa who continuously risk their lives in an attempt to reach the EU’s shores.93

83

See Council of the European Union, ‘European Pact on Immigration and Asylum’ (24 September 2008,

Brussels) available at <http://www.pmlp.gov.lv/en/assets/documents/anglu%20val/Imigracijas_patveruma_pakts

_EN.pdf > last accessed 12 September 2014. 84

Commission, ‘The Global Approach to Migration and Mobility’ (Communication) COM (2011) 743 final

(GAMM). 85

Ibid, para. 1. 86

Ibid, para. 1. 87

Ibid, para. 4. 88

Ibid, para. 4. 89

Ibid, para. 4. 90

Commission’s Dialogue for Migration, Mobility and Security (n 18). 91

Ibid (emphasis in original). 92

In the words of Malta’s Prime Minister, Joseph Muscat, ‘[a]s things stand we are just building a cemetery

within [the] Mediterranean sea’ – see ‘Migrant Boat Capsize Leaves 27 Dead in Mediterranean’, BBC News

Europe (11 October 2014), available at: <http://www.bbc.co.uk/news/world-europe-24499890> last accessed 12

September 2014. 93

The sinking of boats which carry migrants from North Africa to the Sicilian island of Lampedusa is now a

regular occurrence. One of the largest recent tragedies occurred on 3 October 2013, resulting in over 300 deaths

14

By prioritising the need to protect its own borders while creating totally insufficient

opportunities for legal migration, the EU has focused more extensively on exporting border

management technologies and signing readmission agreements with its Mediterranean

neighbours rather than tackling the recognised causes of irregular migration.94

Indeed, as

rightly noted by Wolff

[t]he initial positive spirit of the Barcelona Process was overtaken by realpolitik

concerns that led Europeans to be less forceful about the promotion of normative

principles such as democratization. Instead it seems that EU internal security

concerns of migration, border control, security and energy took precedence over

the promotion of the rule of law and democratization.95

The pledged adherence of the partners to the ‘common’ values has been purely

rhetorical. Most worrisome is, however, that the EU does not even try itself to adhere to its

proclaimed values in the context of its anti-migration campaign in the mare nostrum – an

issue which will be explored below in some detail. In this context, it is utterly unsurprising

that the partners are actually reluctant to pursue democratisation and adhere to the values

outlined by the EU. The incentives on offer should be substantial enough to compensate for

the obvious losses to be suffered by the elites in the countries in question. Thus, viewed from

a purely practical perspective it seems that the idea of conditionality is unlikely to promote

change in some countries – the price of regime change is naturally very high.96

Value-based

conditionality cannot work in relations with partners who are unwilling to change. As noted

by Tocci

[i]f democratisation and human rights call for a redistribution of powers, the legal

and institutional installation and protection of rights and the enhancement of

political participation, it is unclear how EU relations with states whose entire

modus operandi often negate these developments, can meaningfully promote these

values.97

Consequently, in this context, the incentives offered by the Union to reward its

partners for compliance can be viewed as unfriendly acts, instead of positive engagement. The

EU is also likely to be viewed by the governments of the partner countries as pushing them

towards regime change. This makes conditionality not only impractical, but simply unusable.

Tackling irregular immigration without sufficiently addressing its root causes cannot

yield durable results. Indeed, ‘[i]t is not the existence of a police force that makes a system of

national law strong and respected, but the strength of respect for the law that makes it possible

for a police force to be effectively organised’.98

The Brussels European Council in June 2014

recognised that ‘[a]ddressing the root causes of irregular migration flows is an essential part

of EU migration policy [and that this], together with the prevention and tackling of irregular

– see in this respect: ‘Opinion of the European Economic and Social Committee on Irregular immigration by Sea

in the Euromed Region’, REX/375 Irregular immigration by sea in the Euromed region (16 October 2013),

(EESC Opinion on irregular immigration). 94

E.g. E. Sottilotta, ‘Political Stability in Authoritarian Regimes: Lessons from the Arab Uprisings’ 13 (2013)

IAI Working Papers. 95

S. Wolff, The Mediterranean Dimension of the European Union’s Internal Security (Palgrave MacMillan,

London/New York 2012), 1 (emphasis in original). 96

Kochenov (n 3). 97

Tocci (n 52), 26–32. 98

A. Clapham, Brierly’s Law of Nations 7th edn (Oxford University Press, Oxford 2012), 81.

15

migration, will help avoid the loss of lives of migrants undertaking hazardous journeys’.99

The

sustainable solution according to the Council, however, ‘can only be found by intensifying

cooperation with countries of origin and transit, including through assistance to strengthen

their migration and border management capacity’,100

while conditionality (the ‘more for

more’ principle) should be applied further to strengthen migration policies as an integral part

of the EU’s external and development policies.

Moreover, by choosing stability over democracy and human rights, the EU might

have fallen into a ‘conceptual loophole’.101

Both the export of border management

technologies to and the signing of readmission agreements with countries with authoritarian

regimes question the ethical dimension of EU’s cooperation with its neighbours. In particular,

the export of new border management technologies to countries which lack democracy and

perform poorly in the field of human rights is problematic.102

This is primarily due to the low

standards of personal data protection and the recipients’ inability to frame new border

management tools ‘within the rule of law and democratic structures’.103

Furthermore, the

EU’s exporting of border management technologies to authoritarian governments sits

uncomfortably with EU’s commitment to ‘work for a high degree of cooperation in all fields

of international relations, in order to […] consolidate and support democracy, the rule of law,

human rights and the principles of international law’.104

Similarly, ‘[t]he EU’s efforts to

widen the network of readmission agreements also highlight its readiness to cooperate with

authoritarian regimes’,105

contrary to its widely promoted intention to build its neighbourly

relations on the basis of mutual commitment to fundamental values and also to its aim to

establish an area of prosperity and good neighbourliness, founded on its own values.

The adherence to fundamental values is not only a responsibility of the partners, but

also of the Union. In his 2013 Report106

the UN Special Rapporteur on the human rights of

migrants, François Crépeau, elaborated a number of shortcomings in migration policy towards

the countries at the southern Mediterranean border. The major shortcomings, according to the

Special Rapporteur are related to the exclusion of the irregular migrants from the migration

and human rights nexus and the gap between policy and practice, i.e. the absence of a rights-

based approach on the ground. With regard to the exclusion of irregular migrants from the

migration and human rights nexus, the Special Rapporteur criticised the EU for focusing on

‘“migratory pressures”, rather than examining the causes of irregular migration’.107

With

respect to the gap between policy and practice, the Special Rapporteur has been even more

critical, observing that the focus has remained on the security aspects of irregular migration

and that ‘the implementation of a rights-based approach remains largely absent’. 108

The

Special Rapporteur has also been concerned with the lack of an independent oversight

mechanism capable of ensuring full compliance with international human rights law by all

migration programmes and institutions in the field. For instance, the GAMM has not

99

Brussels European Council (26, 27 June 2014) Presidency Conclusions, para. 8. 100

Ibid, para. 8. 101

Sottilotta (n 94). 102

M. Caparini and O. Marenin, ‘Introduction’ in M. Caparini and O. Marenin (eds.), Borders and security

governance: managing borders in a globalised world (Geneva Centre for the Democratic Control of Armed

Forces, 2006), 4. 103

S. Wolff, ‘Border Management in the Mediterranean: Internal, External and Ethical Challenges’ 21 (2008) 21

Cambridge Review of International Affairs, 253‒71, 266. 104

Article 21(2)(b) TEU.. 105

Delcour (n 8), 272. 106

UN Report (n 6). 107

Ibid, para. 33. 108

Ibid, para. 36.

16

established any enforcement mechanism for the evaluation of practices which might infringe

human rights.

The more serious shortcomings addressed by the Special Rapporteur include

illegitimate detentions; externalisation of border controls by shifting the burden of preventing

irregular migration into Europe to departure or transit countries; capacity-building of foreign

border control where the protection of human rights is weak; readmission agreements which

do not sufficiently incorporate human rights; unclear and limited mobility partnerships;

insufficient responsibility sharing with external border states; and insufficient

acknowledgement and addressing of ‘pull factors’. The detentions of irregular migrants have

been increasingly used as a tool in border controls ‘with almost no possibilities for detainees

to enjoy even the minimum human rights guarantees’109

rather than being a measure of last

resort in accordance with the EU Return Directive.110

This trend has also been spread to other

(non-EU) neighbouring countries at the external border – ‘often at the behest of, or with

encouragement by, the European Union’.111

The externalisation of border controls has been

also conducted through ‘pushback’ mechanisms and readmission agreements. As noted by the

Special Rapporteur

[w]hile “push-backs” have been condemned by the European Court of Human

Rights in the Hirsi Case, […] the European Union appears to be finding more

creative ways to ensure that migrants never reach Europe’s borders. While

increased surveillance may assist in the saving of lives, it is thus feared that

institutionalized cooperation with third countries, especially in North Africa and

along the Turkish coast, in particular with regard to supporting their coastguards’

interception capacities, has the practical objective of simply stopping boats from

entering European territory altogether […] Moreover, the externalization process

seems to aim at placing the migrants within the firm control of non-European

Union countries, without the European Union providing commensurate financial

and technical support for human rights mechanisms in such countries, thereby

allowing the European Union to wash its hands of its responsibility to guarantee

the human rights of those persons attempting to reach its territory.112

Furthermore, the capacity building of foreign border control where adequate

protection of human rights does not exist, encourages smuggling, corruption and further

human rights violations. The readmission agreements which offer incentives for both the EU

(securing its borders) and for the partner countries (visa facilitation agreement) do not

automatically incorporate human rights considerations but focus almost exclusively on

combating immigration. The readmission agreements oblige signatory countries not only to

receive their own nationals, but also third country nationals who stayed in, or transited

109

Ibid, para. 49. 110

See Articles 8(4) and 17(1) of the Directive, 2008/115/EC of the European Parliament and of the Council of

16 December 2008 on common standards and procedures in Member States for returning illegally staying third-

country nationals. 111

UN Report (n 6), para. 50. 112

Ibid, paras. 56 and 58 (footnote omitted). In Hirsi, the ECtHR assessed Italy’s ‘push-back’ policy in the light

of collective expulsions, defined by the European Commission of Human Rights in Henning Becker v. Denmark,

Application No.7011/75, as being ‘any measure of the competent authority compelling aliens as a group to leave

the country, except where such a measure is taken after and on the basis of a reasonable and objective

examination of the particular cases of each individual alien of the group’ (para. 166). The ECtHR accordingly

ruled that Italy violated Article 4 of Protocol No. 4 to the ECHR (which prohibits collective expulsion of aliens)

and Article 3 ECHR (obliging the state to protect the applicants from torture and inhuman or degrading

treatment). In addition, the Court found a violation of Article 13 ECHR (providing for a right to an effective

remedy) read in conjunction with the above two provisions.

17

through their territories before migrating, which raises yet more human rights concerns. The

mobility partnerships were viewed by the Special Rapporteur as unclear with respect to their

legal nature, limited in their scope of application and as merely another instrument for the

externalisation of border controls. Another problem for the Special Rapporteur was the

insufficient responsibility-sharing with external border States, notably with the EU Member

States which deal with a large number of migrants – Greece and Italy. In addition to the poor

living conditions and lack of protection for human rights endured by migrants there, they

often become trapped in these States as they are not allowed to travel to other EU countries.

Lastly, the Special Rapporteur noted that the EU should develop effective programmes for

working visas and should adopt measures to effectively penalise employers who abuse the

position of migrants. In its recommendations, the Special Rapporteur stressed that ‘[f]urther

implement a human rights-based approach to migration and border management, ensuring that

the rights of migrants, including irregular migrants, are always the first consideration’.113

Conclusion

The EU’s unsuccessful attempts to solve the problem of irregular immigration by sea cannot

be detached from the general policy frameworks which define the relations of the Union with

its Mediterranean partners, let alone its own definitions of legality and irregularity. The poor

achievements of the EU speak of the weak frameworks through which the question of

migration is regulated. The interest-based relations between the Union and its Mediterranean

neighbours and the dominant role of the former sit uncomfortably with EU’s aim of

establishing good neighbourly relations based on cooperation. Such Union dominance is

further strengthened through the use of conditionality in EU’s relations with neighbouring

countries.114

Given the overwhelming asymmetry between the partners, conditionality

thinking prevailed in relations between the EU and its partners and yet, ‘being the biggest

stakeholder in the project[s] gives the EU the right to set the agenda, including the main

“shared” priorities’.115

The awkward attempt of the EU to present unilateral policies116

from a

perspective which runs contrary to the policy’s very essence – attempting to unite

irreconcilable ideas of co-ownership of the process and conditionality – is a conceptual

mistake in the construction of the EUs relations with its neighbourhood.

This chapter has demonstrated that the EU’s Mediterranean policy is too complex,

haphazard and ineffective to be a real vehicle for controlling irregular migration in the region.

The poor incentives offered to the partners make improvements on the ground difficult and

the heavy reliance on conditionality is inexplicable in a situation where the ‘shared’ core

values are a mere rhetorical statement, rather than an empirically-grounded observation.

Conditionality and help with democracy, human rights protection and the rule of law naturally

turn into unfriendly acts aiming at regime change in this context. Unable to affect the root-

causes of migration, owing to misconceived value-laden assumptions and dysfunctional

policy, the EU suffers from the fruits of its own incapacity and indecision: mare nostrum is a

113

UN Report, ibid, para. 82. 114

Moreover, the EU is also ‘sometimes seen as a “clearing house for national interests” which can in turn create

uncertainties for the Mediterranean partners “in terms of predictability and transparency”’ – see Wolff (n 95), 98

(footnote omitted). 115

Ibid. 116

To agree fully with Hillion and Cremona (n 46), 21 (emphasis in the original); Wallace (n 47), 18 (talking

about ‘one-sided dependence in an inherently unbalanced relationship’). Scholars noted a large amount of EU

self-interest contained in the priorities listed in the ENP instruments, clearly reflecting such unilateral nature of

the policy: K. E. Smith, ‘The Outsiders: The European Neighbourhood Policy’, International Affairs 81 (2005),

757–773, 761, 765.

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mass grave. Worse still, the EU’s own adherence to its stated values when dealing with

irregular migrants is overwhelmingly problematic and is in need of profound reassessment.

While the goals of peace, prosperity and growing cooperation are not reached, the frenemies

continue down their dysfunctional path.