EU Externalisation of Borders: out of sight, out of mind

“[…] How many years must some people exist
Before they’re allowed to be free?
And how many times can a man turn his head
And pretend that he just doesn’t see?
[…] How many ears must one person have
Before he can hear people cry?
And how many deaths will it take ’till he knows
That too many people have died?
[…] The answer, my friend, is blowin’ in the wind,
The answer is blowin’ in the wind”
– Bob Dylan, Blowin’ in the wind –

If we look at the jungle of treaties, regulations, directives, binding and not-formally binding international measures which shape the European migration policy, it’s possible to identify some highly problematic aspects.

Firstly, it’s commonly known that EU’s decision-making reaches its limits when asked to solve divisive political issues. In cases like these, such as the migration policy, the intergovernmental method is still prevailing over the European one, revealing a weaker side of the EU’s policymaking.

Furthermore, the EU suffers from limitations in delivering policies on such a subject, because the variety of the competences involved (as in matters of integration, social policies, etc.) are not exclusive of the EU’s institutions. This implies that EU migration policies are currently dealing with the harmonisation of visa regulations and the control of borders; limited measures which are insufficient in facing this phenomenon as would be needed, i.e. with a common and comprehensive approach.

This is not what the member states are pursuing today. For well-known political reasons they are, with different graduations, trying to provide the security people are asking for or, perhaps that they have been conditioned to ask for. For this reason, on one hand, they want to maintain control on their internal migration issues; on the other hand, they are asking the EU – using the weight of their governments – to restrict so-called “irregular migration” and to avoid as much as possible having to bear the (political and organisational) burden of international protection procedures and of a system of reception of “irregular migrants”.

Today, the strategy to achieve this goal has been dubbed the “externalisation of borders”.

Externalisation of borders – What are we talking about?

The externalisation of borders can be described as a system of juridical, economic and military measures provided by the member states and the EU, to stop migrants entering their territories and to delegate the procedures of international protection to other states not comprising the EU. This policy has many different problematic aspects[1].

First, the juridical instrument used to enhance this policy: more and more international measures not having the shape of formal international treaties. This is the case, for example, of the EU-Turkey statement which aims to stem “irregular flows” (anyone not already in possession of a visa or international protection recognised outside the EU: such a large and contradictory category) from Turkey. According to the EC, thanks to this statement, “arrivals decreased significantly – showing clearly that the business model of smugglers exploiting migrants and refugees can be broken”[2]. A clear explanation of the EU’s approach.

Other examples are the declarations, proposals of action, communications and the informal partnerships provided by the EU, many member states (as Italy, always “encouraged” by the EU), UA, Libya and other African states to manage the `Central Mediterranean Route of Migration´[3]. As we can see, these policies are generally composed of flexible measures, usually connected with considerable funding, which represent the core of the binding power of these international acts. Is it possible to control them? Is it possible to interfere with these policies? What kind of democratic control can be exercised towards them? Questions with no simple answers, if any.

Second, the aim itself, that this policy wants to fulfil. As well-described by EU documents, the goal is to stop “irregular migration”, encouraging (mostly with funds and military cooperation) the creation of a system of international protection procedures outside of the EU. This is, in simple words, a full delegation, comprising rescue operations, first assistance to migrants and international protection procedures to “volunteer states”, in a fluid system in which, only the OIM and UNHCR are attempting to grant the respect of the Geneva Refugee Convention.

Can we really think that a fluid system based on military cooperation, supported by financial measures, can ensure the respect of migrants’ human rights? Is it possible to consider that helping other states in keeping migrants “out of sight” and accepting the risk of gross violations of their rights, is not per se an involvement in those same violations?

If we agree on the fact that the EU is one of the most important players with regard to these policies, we must reflect on a big contradiction. All measures described seem to show a connection between the sustainability of the EU’s area of freedom, security and justice and the need to stop migration. Do we really need to limit migrants’ rights to fulfil the European dream of peace and freedom? Is it at all coherent with EU constitutional and democratic values? Can we call a Union that is involved in continuous violations of human rights liberal-democratic?

It is necessary to reflect on this as we can’t hide these contradictions forever. Keeping facts out of sight will not let them forever out of mind.

Nicolò Alessi is a PhD student in Public Comparative Law at the University of Verona. His research deals with the role of law in multicultural societies, focusing on the theories of federalism as a tool for managing the diversity through non territorial autonomy. He has travelled all over Italy to study and has lived in many different Italian cities. But sometimes he misses the times when he worked in a hut in the mountains of Aosta Valley.

[1] ASGI, L’esternalizzazione delle frontiere e della gestione dei migranti: politiche migratorie dell’Unione europea ed effetti giuridici, in www.asgi.it.

[2] European Commission, EU-Turkey Statement. Two years on – April 2018, in www.ec.europa.eu.

[3] Updated information in ASGI, L’esternalizzazione delle frontiere e della gestione dei migranti: politiche migratorie dell’Unione europea ed effetti giuridici, in www.asgi.it.