Compliance or Complicity? An Analysis of the EU-Tunisia Deal in the Context of the Externalisation of Migration Control

Abstract

On 23 July 2023, the European Commission concluded a ‘Memorandum of Understanding on a Strategic and Global Partnership with Tunisia’ (MoU), mainly aimed at stemming migration in exchange for strengthened cooperation in other policy areas. The MoU was met with strong criticism from both civil society and institutional bodies such as the European Parliament, the European Ombudsman, and several Member States. Critics fear complicity in the fundamental rights violations of migrants and denounced the informal and opaque approach by the European Commission, while formal avenues were at hand. This article reassesses the conclusion of the MoU and draws an analysis of the MoU from the perspective of human rights compliance as well as democratic and judicial control, while also examining compliance with the European Commission’s obligations. Furthermore, the article puts the MoU in the context of the EU policy trend of externalising migration control through partnerships with third countries.

1 Introduction

The European Council in its Conclusions of December 2005 adopted the Global Approach to Migration (GAM),¹ later replaced by the European Commission’s Global Approach to Migration and Mobility (GAMM) of 2011. They both introduced the use of third country relationships as a strategic tool to assist in the pursuit of migration policy aims.² Since then, the externalisation of migration control has increasingly become a strategy of importance within the common migration policy of the European Union (EU).³ This strategy, confirmed and expanded in the Commission’s Communication on a new Partnership Framework with third countries in 2016 as well as in its Communication on a new Pact on Asylum and Migration in 2020, mainly aims to stem migration already beyond the EU’s external borders and enhance returns to both countries of origin and transit.⁴ In one of the latest implementing acts of this strategy, on 23 July 2023 a ‘Memorandum of Understanding on a strategic and global partnership’ (MoU) was concluded between the EU and Tunisia. Among other things, the MoU aims to combat irregular migration and enhance the return of Tunisian nationals irregularly staying in the EU.⁵ The MoU consists of commitments and enhanced cooperation between the EU and Tunisia across several policy areas.⁶ In public discourse the agreement is commonly referred to as the EU-Tunisia migration deal—given the underlying motive of the EU to stem the influx of irregular migrants in exchange for cooperation in other policy areas and economic support for the Tunisian government, based on the ‘more for more’ conditionality principle. Through this approach, countries are incentivised to cooperate on border control and readmission in exchange for more beneficial cooperation with the EU in other areas.⁷

From the start of the negotiations between ‘Team Europe’⁸ and Tunisia, the migration cooperation has faced harsh criticism from civil society, the European Parliament, the European Ombudsman and even EU Member States as well as the High Representative of the Union for Foreign Affairs and Security Policy/Vice-President of the European Commission (HR/VP).⁹ Criticism of the MoU is threefold, and mainly relates to the possible complicity in violations of the fundamental rights of migrants and refugees by Tunisian authorities, the apparent ineffectiveness of the deal, and the opaque approach of the European Commission, which deliberately chose to conclude an informal deal while formal procedures for migration cooperation were at hand. In the view of the Council Legal Service, the High Representative of the Union for Foreign Affairs and Security Policy and a group of 11 Member States,¹⁰ a proper legal basis for the MoU is failing due to the lack of a mandate granted by the Council.¹¹

In this article, we will analyse the above-mentioned points of criticism from the perspective of parliamentary scrutiny and compliance with international law. Firstly, the development of externalisation is outlined as a policy trend, by analysing several decisive decisions that have shaped the tools and methods used by the EU, which are also applicable to the MoU. We will focus on the trends of informalisation and conditionalisation within EU external migration cooperation. Furthermore, we will describe EU-Tunisia migration cooperation prior to the conclusion of the MoU, examining how the deal emerged and delve into its contents, including human rights-related provisions. We will also consider the state of play in the implementation. Next, the article will touch upon democratic scrutiny. It will describe the competence of the European Parliament in the field of external migration cooperation, and analyse the actions that have already been undertaken so far, as well as outlining additional potential avenues for increased scrutiny of the MoU. The assessment of how the MoU complies with the EU principles on institutional balance and accountability will be followed by an analysis of its compatibility with international law obligations.

2 Increasing Externalisation of Migration Control

While migration cooperation between the individual EU Member States and third countries already dates back longer in time, the adoption of the GAM by the European Council in 2005 is considered to be the starting point of the EU’s common external migration agenda.¹² From then onwards, the Commission began to engage with third countries in order to achieve mutually beneficial partnerships in the field of migration. Over the course of this period, we have seen that the EU’s attitude and methods to gain cooperation on border control and readmissions have evolved from subsequently seeking a common agenda, to adopting the ‘more for more’ approach, which shifted to the emphasis on ‘less for less’, where other policy areas are instrumentalized to achieve cooperation in the field of migration.¹³

While the Commission seems to have become aware of the limits of this last approach, the European Council continues in its attempts to gain more control on migration cooperation with third countries. In order to do so, it has notably established a new Mechanism for the Operational Coordination for the External Dimension of Migration (MOCADEM), which allows the Member States to exert pressure on Commission policy decisions in the field of migration relations with third countries.¹⁴ The intergovernmental dimension of the EU’s external migration cooperation therefore seems to be increasing.

However, the legal possibilities for the EU to engage in formal migration partnerships have been relatively limited under the treaties. With the ratification of the Lisbon Treaty in 2007, the EU’s available avenues were extended, notably under Articles 78(2)(g) and 79(3) of the Treaty on the Functioning of the European Union (TFEU). Currently, the most important formal instruments that have been adopted to engage in migration cooperation with third countries are the EU Readmission Agreements (EURA).¹⁵ But Article 78(2) TFEU, which constitutes the grounds for the establishment of formal partnerships on migration, has been scarcely used so far.¹⁶

In 2011, the Commission provided a strategic update of the GAM to the GAMM, confirming that migration is ‘firmly at the top of the European Union’s political agenda’.¹⁷ This new strategy towards migration cooperation with third countries translated the objective of mutually beneficial partnerships into the so-called ‘more for more’ conditionality-based approach. In order to incentivise the conclusion of EURAs, partner countries were promised several benefits including the prospect of a Visa Facilitation Agreement (VFA) to simplify EU visa procedures for their nationals.¹⁸ Mobility Partnerships (MP) were used as a platform for dialogue and negotiation.

Political importance for the externalisation of migration controls proliferated after 2015–2016, following a significant increase in irregular arrivals during those years. It was in the wake of these developments that the Commission established the European Agenda on Migration,¹⁹ which resulted in a significant intensification of the utilisation of relations with third countries to pursue migration policy goals. The European Agenda on Migration was the basis for structural changes in the status quo of migration cooperation with third countries, which the Commission developed in its Communication on the Partnership Framework (PF).²⁰ In its renewed strategy, the Commission expanded the conditionality-based approach by making other, non-related policy areas subject to the degree of cooperativeness in the area of migration.²¹ In particular, the Commission decided that areas within the EU’s competence (neighbourhood policy, development aid, trade, mobility, energy, security, digital policy) should be aligned to achieve its migration policy agenda. With this in mind, the Member States were expected to mirror this approach when it comes to national policy tools and incentives.²² In its Communication on the New Partnership Framework of 2016, the Commission had marked Tunisia as one of the 16 priority countries.²³

Despite MPs under the GAMM serving as a platform for the realisation of formal agreements such as the EURA of VFA, this did not seem to be the main goal of the new policy. On the contrary, we have seen that after 2015, the EU concluded only one EURA and one VFA (both with Belarus in 2020). Conversely, the EU has since concluded informal readmission cooperation agreements with Afghanistan (2016), Guinea (2017), Bangladesh (2017), Ethiopia (2018), Gambia (2018), and Côte d’Ivoire (2018). In contrast to the EURA, they are not public or legally binding, they lack references to human rights, they are not reciprocal and they include commitments from the EU in other areas, for instance in financial assistance.²⁴ Their modalities vary and they have been given various names, such as arrangements, declarations or Statements.²⁵ This trend of the informalisation of migration control partnerships, ignoring the existence of a legal basis in the Treaties to establish migration partnerships, risks undermining democratic and judicial control, given the limited jurisdiction of the Court of Justice of the EU (CJEU) over these non-binding instruments, as well as the absence of a role for the European Parliament in their conclusion—in contrast to formal readmission agreements which are subject to Parliamentary approval.²⁶ Moreover, scholars have assessed the practice of informal readmission instruments as a deliberate attempt to avoid legal constraints.²⁷

In 2021, the European Parliament formally took a position against this trend, formalising earlier institutional concerns about the lack of an effective judicial remedy in the event of alleged human rights violations as a consequence of informal agreements. The Parliament also concluded that there had been a lack of impact assessments of the EU’s readmission policies in this regard.²⁸ Despite institutional and academic criticism, the 2020 Pact on Migration and Asylum reconfirmed the importance of ‘tailor made’ (informal) agreements, as well as the use of conditionality. In this connection, it is worth mentioning that in 2021 the European Court of Auditors—while referring to criticism by civil society organisations and the European Parliament—even recommended an increased use of informal readmission cooperation instruments, arguing that flexibility in terms of content increases the chance to yield results.²⁹

3 How ‘Team Europe’ Engaged with the Tunisian President

3.1 EU-Tunisia Migration Control Cooperation Preceding the Memorandum of Understanding

The cooperation between the EU and Tunisia formally commenced in 1995, when both parties concluded the EU-Tunisia Association Agreement.³⁰ Although limited, relations between the parties on migration matters are outlined in Article 69 of the agreement, in the modality of dialogues on the well-being of migrant communities and the correct return of nationals illegally residing on each other’s territory.

In 1998, Italy was the first Member State to bilaterally engage in migration control cooperation with Tunisia. Both countries signed an arrangement, which eventually turned out to become the first in a range of five arrangements and memoranda between the two.³¹ According to a European Court of Human Rights’ ruling in 2016, these arrangements related to ‘the prevention and repression of illegal immigration, the readmission of the two countries’ nationals, the return of nationals of third countries outside the Arab Maghreb Union to their countries of last departure, and the taking-back of migrants after readmission in error’.³² Following in Italy’s footsteps, a further three Member States³³ have signed bilateral migration arrangements with Tunisia. Of these four, the arrangement between France and Tunisia is the only one not to contain provisions on readmission.³⁴

As highlighted in Sect. 1, the adoption of the GAM in 2005 was a pivotal moment for the establishment of migration partnerships with third countries, particularly across the Mediterranean. Tunisia, however, was not specifically mentioned in a call for action in the 2005 Council Conclusions. But in 2011, this dynamic shifted, following the rise of irregular sea arrivals to Italy from Tunisia between January and September 2011 to 42,807, compared to 10,000 in 2010 and 5,000 in 2009. This number comprised 47% Tunisians, due to the just erupted Arab Spring, but also included 17,000 Sub-Saharan Africans, and Libyans fleeing the civil war that had erupted in the country. This saw both groups using Tunisia as a transit country.³⁵ The Tunisian visa policy at the time—mainly designed to attract labour migrants—exempted nationals from Ghana, Guinea, Ivory Coast, Liberia, Niger and Senegal, as well as EU and Maghreb nationals, from visa requirements.³⁶ This, in combination with the changed security situation in Libya due to the outbreak of the war, increased the attractiveness of Tunisia as a transit country.³⁷

In October 2011, these circumstances led to the launching of a Dialogue on Migration, Mobility and Security between the EU and Tunisia and the conclusion of an MP in 2014.³⁸ In 2012, the Commission intensified cooperation with Tunisia on the enacting of asylum legislation, under the Regional Protection Programme, without resulting in the enactment of actual legislation.³⁹ As pointed out by Raach, Sha’ath and Spijkerboer, asylum legislation that is in line with international refugee law and the Tunisian Constitution had been prepared at a technical level in 2014, but it has been lying on the shelf ever since then. Political adoption has not occurred out of a fear that the EU would outsource the processing of asylum requests by people transiting through Tunisia.⁴⁰ A scenario in which the EU would use its leverage to exert pressure can be considered realistic, given the established practice of conditionality.

In 2017, the German Chancellor Angela Merkel proposed that there should be movement in this direction by pledging to conclude deals with countries in North Africa, including Tunisia, in order to create refugee camps for processing requests in Tunisia, similar to the one that had been agreed with Libya earlier that month. However, the Tunisian Prime Minister Chahed rejected this idea, arguing that this would not work given Tunisia’s young democracy.⁴¹ His reference to democracy for rejecting the deal is interesting, compared to the MoU and the authoritarian drift by the current President, who has been accused by the European Parliament of attempting to reverse the country’s historical democratic transition.⁴² This could hint that it is easier for the EU to conclude migration-related agreements with governments that are less inclined to take the will of their population into account.

Subsequently, under the framework of the MP, there have been negotiations on a VFA alongside the launching of a EU Readmission Agreement (serving the ‘more for more’ approach at the time). Neither of these schemes, however, have been completed. In 2022 the Commission reported to the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) that due to elections, Covid-19 and a lack of interlocutors, negotiations had stalled since 2019, but that the Commission was planning to ‘relaunch the process the framework of the wider dialogue on migration with the country’, which in hindsight might have been a hint towards the 2023 MoU.⁴³ As a result, the readmission of Tunisian nationals occurred on the basis of informal and bilateral agreements between the Member States and Tunisia.

3.2 How Did the 2023 Memorandum of Understanding Emerge?

During the period 2015–2019, the numbers of departures from Tunisia were relatively low and the main point of departure for migrants in the Central Mediterranean route to the EU was Libya. This situation, however, had drastically changed by 2022. At this point, with the 2022 ‘Action Plan’ for Tunisia, the Commission concluded that the EU should seek a reduction of departures, for which options to increase cooperation should be explored as a matter of priority.⁴⁴

Between January and June 2023, the number of arrivals to Italy from Tunisia rose to 34,321 people from 979 disembarkations, making it the main country of departure along the Central Mediterranean Route.⁴⁵ According to the United Nations High Commissioner for Refugees (UNHCR), the departure mainly concerned Sub-Saharan people who had resided and worked in Tunisia for a longer period, using the visa-free regime between Tunisia and several African countries. The UNHCR noted that the main reasons for this stark rise in departures were the deteriorated economic situation in combination with anti-migrant rhetoric in a speech by the Tunisian President.⁴⁶ In this speech, the Tunisian President Kais Saied claimed that migration was ‘part of a criminal plan to change the demographic landscape in Tunisia’, and spoke of ‘hordes of migrants’ that were involved in ‘violence, crimes, and unacceptable acts’.⁴⁷ After the speech, Human Rights Watch (HRW) noted a surge in violent assaults, abuse, arbitrary evictions and job terminations in Tunisia.⁴⁸

At the same time, the economic situation in Tunisia also offered grounds for the government to engage in a conditional partnership on migration. In April 2022, the Organization for Economic Cooperation and Development (OECD) described the economic situation as ‘the worst crisis in a generation’, being a result of the impact of the consequences of the Covid-19 pandemic on the weak Tunisian economy.⁴⁹ A 1.9 billion euro economic relief deal was reached on staff level between Tunisia and the International Monetary Fund (IMF), but the deal faced political rejection by President Saied due to the conditions for economic reform that were referred to as ‘foreign diktats’.⁵⁰ In February 2023, inflation in Tunisia rose to 10.4%, the highest rate since 1984.⁵¹ President Saied was thus in search of funding, and the EU was willing to give him just that.

Both the situation in Tunisia and the desire of the Council thus contributed to the creation of the EU-Tunisia MoU, as did domestic promises by the Dutch Prime Minister Mark Rutte and the Italian Prime Minister Giorgia Meloni to their electorates to reduce the number of migrants. This resulted in a meeting in Rome on 8 March 2023, during which both declared to be interested in acting as the ‘motor block’ to conclude ‘Turkey-like’ deals with African countries.⁵²

When analysing the swift conclusion of the MoU and the remarkable Dutch-Italian coalition, it is interesting to note that four days prior to the first visit to Tunis, on the 8th of June, a common position was reached among Member States in the Justice and Home Affairs Council on the Asylum Procedures Regulation (APR).⁵³ Given Rutte’s domestic promise to reduce the number of asylum seekers in the Netherlands, the Dutch were among those pushing for the inclusion of a mandatory asylum and return border procedure as this guarantees that significant groups of asylum seekers are contained at the external borders during an accelerated procedure.⁵⁴ Many in Brussels have questioned why Southern Member States, including Italy, accepted this provision.⁵⁵

During the negotiations in the Council, Italy insisted on safeguards for the reduction of the number of arrivals on its shores. In the eyes of Italy, one of them would be the watering down of the criteria for the qualification of a safe third country concept under the Council position for the APR. This would allow for the swift return of asylum seekers to ‘safe’ transit countries, while offering a large degree of discretion to Member States to decide on the safety as well as on the obligatory connection between the asylum seeker and the transit country.⁵⁶ Italy thus used the negotiations on the APR to achieve more legal possibilities to return rejected asylum seekers to Tunisia as a transit country, but also to prevent migrants from arriving on its territory. Member States and the Commission were keen to accommodate Italy in both wishes, in exchange for allowing Italy to agree on a mandatory screening, asylum and return procedure at its borders, without having assurances on the relocation of asylum seekers to other Member States. The Council position on the draft Asylum and Migration Management Regulation still allocates the responsibility for asylum seekers to the country of first entry, and offers a great deal of leeway to other Member States in deciding on the form of solidarity.⁵⁷ Achieving an agreement with Tunisia on border control therefore served a common interest of both Italy, the Northern Member States and the Commission.

Formally, the EU-Tunisia Association Council, a body consisting of Members of the Council, the European Commission and the Government of Tunisia, should have been the established platform for any dialogue or political discussions between the EU and Tunisia.⁵⁸ Yet, based on the political motivations that have been outlined above, an informal coalition led negotiations towards this informal Statement. In June 2023, a joint visit took place, with Commission President Von der Leyen and the Italian and Dutch Prime Ministers travelling to Tunis for an audience with President Saied. Following this meeting, the European Commissioner for Neighbourhood and Enlargement Oliver Várhelyi and the Tunisian Minister of Foreign Affairs, Migration and Tunisians Abroad Nabil Ammar were tasked with the prospect of negotiating a deal. The ‘Memorandum of Understanding on a strategic and global partnership’ was eventually signed on 23 July 2023 in the presence of the Commission President and Dutch and Italian Prime Ministers.

According to a letter by HR/VP Borrell sent to the European Commission’s President Von der Leyen on 9 September 2023 following discussions in the Foreign Affairs Council, several Member States as well as the HR/VP himself expressed their discomfort with the exclusive Dutch-Italian-Commission coalition.⁵⁹ The letter states that proper procedures had not been followed and that the Commission’s President had overstepped her mandate by acting without the prior approval of the Member States or consulting the HR/VP. The letter sought legal precedence by referring to the CJEU ruling ‘Swiss MoU’, in which the Court had ruled regarding the MoU between the EU and Switzerland that the Commission would require prior approval before signing an MoU with a third country.⁶⁰ It held that the principle of institutional balance laid down in Article 13(2) TEU applies to the signature of non-binding agreements as regards the relations between the Commission and the Council.⁶¹

4 What’s in the Deal?

4.1 Commitments and Funding

Two of the main characteristics of the MoU are its (1) informal nature and its (2) ‘more for more’ conditionality strategy, linking unrelated policy areas to commitments on migration control cooperation. They both originate from the established practices after the European Agenda on Migration, as laid down in Sect. 2. While the MoU includes several commitments from both sides in the MoU, it is not a binding EU legal act and the European Commission presents its content in the form of a press release.

Despite its expressed intentions from 2018 to relaunch negotiations on an EURA in the context of a broader migration partnership, the European Commission chose to continue the trend of informalisation and include commitments on readmission in the MoU, which states that both parties work to ‘support the return and readmission from the EU of Tunisian nationals in an irregular situation’. The MoU does not include any reference to the stalled negotiations on the EURA, nor any other reference to binding acts. In addition, for the facilitation of visas, the EU chooses informal non-binding commitments in the MoU and does not refer to the existing formal channel, namely the VFA.

Moreover, the deal is built on a conditionality approach, in order to leverage cooperation in the field of migration controls, according to its ‘more for more’ approach. The EU commits to intensified cooperation and support to Tunisia along the lines of five pillars: macro-economic stability, trade and investment, green energy transition, people-to-people contacts, and migration. This includes commitments to increase cooperation on several formal forms of collaboration, such as the intention to sign a Comprehensive Air Transport Agreement (CATA), greater Tunisian participation in the Horizon + and Erasmus programmes, and the mobilisation of public/private investments in the Tunisian economy through the European Fund for Sustainable Development Plus (EFSD +). The EU further commits to budgetary support to enhance economic reforms.⁶²

In September 2023, the Commission announced a sum of 127 million euros in support of the implementation of the MoU, with 60 million euros in budget support, and a migration package worth 67 million euros. In a letter to the LIBE Committee, the Commission responded that the total migration support to Tunisia would equal 105 million euros, compared to 65 million euros in 2020 and 2021 combined. It did not, however, specify what commitments were made prior to the MoU for 2023, or whether any migration support for the following years has been committed under the MoU.⁶³ On 2 October 2023, there was widespread coverage in several European media outlets suggesting that Tunisia would cancel the deal by wiring back 60 million euros under the MoU. This claim, though, has been denied by the Commission, clarifying that this concerned unrelated Covid-19 budget support and did not have any consequences for the implementation of the MoU.

In terms of migration-related commitments, the Commission has not officially published any specific figures, but EUobserver wrote, based on leaked documents by the EU Delegation in Tunis, that just 5% of the committed 105 million euros under the MoU is awarded for the protection of refugees and migrants in Tunisia. At the same time, 62% of the funds are allocated to the police, search and rescue, returns and border management equipment, and 17% for returns and readmission.⁶⁴ Among the beneficiaries are the Tunisian Coast Guard and the Maritime Rescue Coordination Centre. This lack of any balance between protection, on the one hand, and border control, on the other, mirrors the intention of the Tunisian President to avoid becoming the EU’s ‘buffer zone’ for asylum seekers and refugees. As the MoU reads: ‘Tunisia reiterates its position that it is not a country of settlement for irregular migrants.’ This confirms Spijkerboer’s conclusion that the EU’s neighbouring countries do not want to (receive support to) build an asylum system that actually works, as they know the EU will use it for its containment policies outside its borders.⁶⁵ In this case, the EU does not even seem to aim to build an effective protection system in Tunisia, as it mainly invests in border control and return to the countries of origin.

In a letter to the European Parliament’s LIBE Committee, the Commission confirmed that the implementation of the funding related to the MoU will be mainly covered from the Neighbourhood, Development and International Cooperation Instrument—Global Europe Instrument (NDICI).⁶⁶ In that light, it is interesting to note that, since its entry into force, several studies have critically analysed this Instrument, aligning this focus in relation to migration projects implemented in Tunisia in the recent past. Multiple recent studies have concluded that there are deficiencies relating to human rights protection, monitoring and effective scrutiny and that there is a misuse of development resources to pursue migration-related objectives.⁶⁷ A recent Oxfam study has found NDICI projects in Tunisia to be a potential violation of Article 29 of the NDICI Regulation, stating that the Instrument shall not fund any activities that violate human rights.⁶⁸ Moreover, another recent study commissioned by the Greens/European Free Alliance (Greens/EFA) group disclosed a critical correlation between EU border management programmes and human rights violations by the Tunisian authorities and considers the lack of adequate monitoring of the human rights impact of projects to fall short of the Instrument’s legal obligations.⁶⁹ This is also in line with previous Public Access to Document (PAD) requests which confirmed that the Commission does not perform any human rights impact assessments when financing projects in third countries.⁷⁰ Additionally, while, at the time of publication, the Commission is yet to publicly respond to questions as to whether the MoU will be made conditional upon respect for human rights, in informal exchanges with Members of the European Parliament (MEPs) it has confirmed that it does not apply this approach.

The Commission’s reluctance is at odds with the General Court ruling in Frente Polisario v. Council of 2015, in a case on a trade agreement with Morocco encompassing products from Western Sahara, where the Court ruled that the EU must avoid situations where an agreement ‘indirectly encourages’ violations of fundamental rights.⁷¹ The obligation to take precautionary measures not only implies ex-ante impact assessments and fundamental rights criteria to be met beforehand, but also the need for independent monitoring and the possibility of suspending cooperation in the case of fundamental rights violations. None of these safeguards are foreseen in the current external cooperation on migration.

The problem with the absence of monitoring is that the Commission will not be able to conclude whether its funding complies with EU legal obligations under the Treaties and the NDICI Regulation. We have been informally apprised by Commission policy makers that non-governmental organizations (NGOs) working in Tunisia are not inclined to share information with EU officials, as they fear repercussions from the Tunisian authorities. This underscores how essential monitoring is, especially in the case of migration cooperation with an authoritarian regime. Moreover, in the absence of human rights conditionality, clear benchmarks for triggering the suspension of funding are failing as well. By using its influence and funding to strengthen the rights of migrants and refugees in third countries, the EU has the ability to channel human rights conditionality rather than conditionality in relation to border control, return and readmission.⁷² Against that backdrop, the MoU is a missed opportunity to use EU foreign policy tools to improve the situation for migrants and refugees in Tunisia, as the EU has chosen to prioritise its own migration-related interests.

4.2 Implementation

In the months after the conclusion of the MoU, several events and developments have led to critical voices claiming the failure of the deal. Their criticism mainly centres around two aspects: an increase in violence and human rights violations against migrants and asylum seekers in Tunisia, as well as an increase in sea departures from Tunisia and arrivals in Italy, leading to arguments of both ineffectiveness and the inducement of or complicity in human rights violations committed by the Tunisian authorities.⁷³

While there were already reports of patterns of human rights violations and the ill-treatment of migrants by the Tunisian authorities, neither discontinued after the conclusion of the MoU. HRW documented the expulsion of more than 1,000 black migrants in July 2023, including a number by the Tunisian Police and Coast Guard, both beneficiaries of the MoU’s financial commitments. Moreover, several international media reported on the 9th of August 2023 that daily, over 150 people on average faced collective expulsion by the authorities over the Tunisian-Libyan border, resulting in a minimum of 27 deaths.⁷⁴ By including in the MoU a reference to the fact that Tunisia is ‘not a destination country for irregular migrants’, President Saied had already indicated that he did not intend to grant reception or the protection of migrants intercepted at sea as a consequence of the MoU. Yet, despite knowing the reputation of the Tunisian authorities in terms of human rights violations of migrants, the EU agreed to this clause and signed the MoU with Tunisia.

The human rights violations after the MoU resulted in fierce institutional criticism, from among others the European Parliament and the European Ombudsman, both urging to avoid complicity and for the deal to comply with EU legal fundamental rights obligations. The Ombudsman questioned whether any human rights impact assessment had been carried out before the disbursement of funds to these high-risk parties, in queries sent to the Commission in relation to an official inquiry launched into the human rights dimension of the MoU.⁷⁵

Criticism also came from within the European Council, where Germany’s Minister for Foreign Affairs expressed her ‘incomprehension’ with the conclusion of the MoU in a letter to the Commission on the 2nd of August 2023, mainly criticising the lack of respect for human rights, the rule of law and democracy.⁷⁶

Besides the potential complicity in human rights violations, the MoU was criticised for its ineffectiveness. In the six weeks after the conclusion of the MoU, arrivals in Italy from Tunisia rose by 68.6% compared to the six weeks before this.⁷⁷ This even led the Dutch Prime Minister Mark Rutte—one of the architects of the deal—to say that he had expected more from the deal.⁷⁸ In addition, President Saied has proven to be an unreliable partner. Not only has he rejected entry to official EU delegations of the European Commission and European Parliament on separate occasions,⁷⁹ but he also publicly rejected the disbursement of 60 million euros of EU funds in October 2023.⁸⁰

This criticism inevitably led to the questioning of whether a legally non-binding migration control partnership along a conditionality approach is the right tool when dealing with a President who has shown little commitment to respect for a rule-based order in the past or whether it makes the EU vulnerable to blackmail. Especially since the President himself expressed his reluctance to host migrants in Tunisia on behalf of the EU.

5 Scrutiny of the Memorandum of Understanding

5.1 Parliamentary Control

As mentioned in Sect. 2—which outlines the informal agreement and the involvement and role that the European Parliament has with regard to the MoU—in order to have negotiated a legally-binding international agreement, the Commission would have required the consent of the Parliament on the basis of Article 218 TFEU, which should have been informed throughout the process. In addition, Article 218(11) would have allowed for a referral of the envisaged agreement to the Court of Justice to assess its compatibility with the Treaties. If the Court had provided a negative assessment, the MoU may not have entered into force as such.⁸¹

The qualification of the deal as non-binding may therefore exclude direct scrutiny by the Court under Article 263 TFEU, as the Court’s competence is limited to acts ‘intended to produce legal effects vis-à-vis third parties’. Whether or not the CJEU would be inclined to review the MoU depends on the interpretation of Article 263 TFEU by the Court. After all, the MoU is an expression of bilateral commitments, thus intending to have a binding or at least normative force.

In a case on the status of a Recommendation by the Commission, Advocate General Bobek suggested to adopt a broad reading of the requirement laid down by Article 263 TFEU, taking into account the ‘proliferation of various soft law instruments’.⁸² In a few cases the CJEU has scrutinised soft deals and emphasised the importance of institutional balance, suggesting that the Parliament’s prerogatives are important elements of the institutional balance created by the Treaties.⁸³ In 2012, the CJEU annulled guidelines that the Council had adopted as an Annex to the Schengen Borders Code, to which the Parliament is a co-legislator.⁸⁴ The Court judged that, despite the title ‘guidelines’, these rules intend to have a binding effect, and therefore have to be established in the legislation itself. It gave three additional reasons: first, the rules concern a major development of the Schengen rules; second, the rules may interfere with the fundamental rights of the persons concerned; third, they require political choices to be made by the EU legislature. It might be possible for the CJEU to qualify the MoU between the EU and Tunisia as an unlawful circumvention of the legislature as well, if it would be seen to prevent the Parliament from exercising its legislative power concerning a competence conferred to it by the Treaties.⁸⁵ The MoU, within its responsibilities, lays down commitments on readmission and visas, both topics of competence for the Parliament.⁸⁶ For that reason, the MoU might be legally challenged, if these commitments are considered to bind the parties. With regard to border control, the MoU merely funds the Tunisian authorities to prevent departures to the EU; however, the Parliament’s competence concerning border control and combating irregular migration (including human smuggling and trafficking) is limited to EU legislation.⁸⁷

Despite this method of excluding the Parliament, the Treaties provide for alternative avenues for the Parliamentary scrutiny of the MoU. Article 36 of the Treaty on European Union (TEU) prescribes regular consultation and the provision of information to the European Parliament on the main aspects and basic choices of the common foreign policy of the EU. The Parliament is also one of the budgetary authorities which, according to Article 14 TEU, must exercise the functions of political control and consultation. Based on the Framework Agreement on relations with the European Parliament, the Commission must treat the Parliament and the Council equally regarding access to information provision on legislative and budgetary matters.⁸⁸

A very common and often used parliamentary tool is the posing of Written Questions under Article 230 TFEU, which obligates the Commission to provide a response. On 8 August 2023, a group of 31 MEPs from five different political groups posed a question, which asked whether the Commission had conducted ex-ante human rights impact assessments and under what conditions the MoU would be suspended.⁸⁹ In its response, the Commission mentioned that Tunisia is expected to respect human rights under the agreement, but did not directly address the ex-ante assessment or benchmarks for suspension.⁹⁰

Another pending avenue is the European Parliament’s right to scrutinise implementing acts. After the European Commission announced the allocation of 150 million euros of general budget support to Tunisia, together with two MEP colleagues, Erik Marquardt and Mounir Satouri, we proposed to the Committee on Foreign Affairs (AFET) to initiate a resolution to object to this allocation, on the basis of Article 112(2) of the Rules of Procedure, which provides for the possibility to object to draft implementing acts in case it considers the act to be inconsistent with Union law. We argued that the allocation of budget support to Tunisia would be in violation of Article 21 TEU because of human rights, democracy and rule of law concerns. This Article provides that EU external action shall be guided by democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. However, after the AFET committee had decided to object, the Commission immediately adopted and executed its decision, which rendered the adoption of an objection ineffective. However, the Parliament adopted a resolution in which it expressed its objection against the decision.⁹¹

The Commission was also invited to an oral exchange of views in the relevant AFET and LIBE Committees, as well as a plenary debate on the 12th of September 2023. As the Commissioner had not given satisfactory answers, the LIBE Committee sent a letter to gain clarification about the human rights compliance of the MoU, monitoring and the legal status of the agreement. Additionally, in mid-July, the Committee requested the Commission to provide a full breakdown of the financial aspects of the deal.⁹² In its response three months later, the Commission did not provide this breakdown, nor did it refer to any ex-ante human rights impact assessment being conducted.⁹³ The invitation by the LIBE Committee in September 2023 to Commissioners Johansson and Várhelyi for an Exchange of Views was formally declined. Arguably, such a rejection could be considered as a violation of the principle of sincere cooperation under Article 13(2) TEU.

In theory, the Parliament could enact a failure to act procedure, under Article 265 TFEU, due to the refusal to provide information or even to consult the Parliament in relation to its budgetary role.⁹⁴ However, such legal actions, which require a political majority, are undertaken very scarcely by the Parliament. Furthermore, the feasibility of such an action before the Court is low, with a historic total of only 13 upheld cases on the basis of Article 265 TFEU. This converts into a success rate of just 2.8%, making this avenue mostly a theoretical one.⁹⁵ At least the Parliament could show its dissatisfaction by refusing to grant discharge to the Commission on the basis of Article 319 TFEU, as it has done several times regarding the budget of Frontex.⁹⁶ Another avenue could be to trigger Article 226 TFEU and set up a temporary Committee of Inquiry, or, less formally, establish a scrutiny working group to assess the MoU and the consequences for human rights. Following allegations of complicity in fundamental rights violations by Frontex, the LIBE Committee established such a scrutiny working group tasked with an inquiry, which published its findings in an influential report.⁹⁷

5.2 Judicial Control

In the absence of impact assessments and monitoring, the fundamental rights obligations form a legal reality that is never tested in practice by the EU itself, unless challenged before a court by an individual. The legal limitations of the CJEU over the EU’s foreign policy tools, as laid down in Article 275 TFEU, pose additional constraints.⁹⁸

Moreover, the informalisation of migration cooperation not only undermines democratic but also judicial control and thus access to justice, as illustrated by the General Court’s judgment in NF v. European Council on the 2016 EU-Turkey Statement.⁹⁹ According to this Statement, Turkey would receive EU funding to host 3.5 million Syrian refugees, in exchange for preventing their departure to the EU and for readmitting irregular migrants and refugees.¹⁰⁰ In this package, Turkey was promised to get visa-free travel soon and to have the EU accession talks accelerated. The General Court ruled, to the surprise of many, that it lacked competence as the Statement concerned an agreement between the heads of the Member States and Turkey, not between the EU and Turkey. It made several scholars question the legal basis for Member States, acting in their autonomous international law capacity, to negotiate on topics belonging to the exclusive competence of the Union like EU accession, visa policy and EU funds.¹⁰¹

The decision of the General Court persuaded Dutch NGOs to issue a Statement in March 2023 in which they hold the Dutch government accountable for the fundamental rights impact on the refugees stranded on the Greek islands, as the Netherlands had negotiated the deal during its EU Presidency.¹⁰² According to their Statement, the NGOs seek legal redress by the Dutch government and the conditions for any future migration deals. In their view, these should not be concluded if they foreseeably lead to human rights violations and without parliamentary scrutiny. They announced that should the Dutch government not acknowledge its liability, the second step would be the filing of a lawsuit against the Dutch State.

This narrow interpretation by the General Court in the NF v. European Council case leads to a catch-22 situation demonstrating that for the Court to be able to protect the Parliament’s prerogatives, it needs to recognise its own scrutiny of competence. There is, however, a vital difference between the EU-Turkey Statement and the EU-Tunisia deal: the Court will not be able to consider the EU-Tunisia MoU as an intergovernmental agreement, as it did with the EU-Turkey Statement. Both the Commission and the Council have unambiguously acknowledged that they are the signatory partners. One can even reason that the opinion of the Legal Service of the Council about the deficiencies in the process, and the lack of a follow-up by the Council, actually confirms the involvement of the EU institutions, including the EU funding in the MoU.

If this admissibility stage is overcome, the question will then be to what extent the Court considers the MoU as having a binding character. Soft law as such cannot be legally challenged. However, according to international law, it is the content, the context and the intention of the parties creating rights and obligations in international law that are pertinent, and that these factors decide if an agreement is a binding instrument in the sense of Article 216 TFEU.¹⁰³ Otherwise, the European Parliament and CJEU could be easily side-tracked by changing the form or terminology. In this case, the transactional character is quite ambiguous. For instance, both parties agree to ‘address the challenges posed by the increase in irregular migration within Tunisia and the EU’, to improve combating migrant smuggling as well as the coordination of search and rescue operations at sea and to support the return and readmission of Tunisian nationals. Besides these mutual expressions of intentions, the MoU obliges the EU to provide financial support for equipment, training and technical support to improve the management of Tunisia’s borders. Even if the Court would consider the MoU to be a binding agreement, it would be quite unlikely that an annulment procedure would be successful, given the lack of explicit conditionality between EU support and the promised performances by the Tunisian President. Furthermore, the language is very neutral, especially regarding the commitments by the EU, which fall within the remit of the NDICI funding. On the other hand, the argument that implementation risks a conflict with human rights (as it results in the containment of people on the move in a country where their human rights are gravely violated) or at least with the due diligence obligation to perform ex-ante impact assessments and monitoring activities, is a strong one.¹⁰⁴ Here, the CJEU could refer to its own judgment in Frente Polisario v. Council.¹⁰⁵ Still, the implementation of the MoU could be legally challenged by individuals before a national court, which may lead to a referral to the CJEU.

6 International Law As a Facilitator of the EU’s and Member States’ Accountability

The informal nature of the MoU does not prevent the EU and its Member States from facing responsibility under international law.¹⁰⁶ The two main strands of responsibility for external action are primary international refugee and human rights law and the secondary rules of international law on the attribution of responsibility for wrongful acts.

The former is primarily based on the concept of jurisdiction, which can occur beyond a State’s own borders in situations where it exercises ‘effective control’ over a territory or ‘authority and control’ over a person, or when a State exercises public powers normally exercised by a third State’s government.¹⁰⁷ All three of these situations are unlikely to be successfully triggered in case of ‘contactless control’.¹⁰⁸ In addition to the personal and spatial model, a functional approach can lead to extraterritorial jurisdiction if an act of a State creates extraterritorial human rights effects, in the case of an immediate and causal link between the act and the human rights violation abroad, and if this extraterritorial effect was foreseeable.¹⁰⁹

The approach of functional jurisdiction is less developed than the other concepts of extraterritorial jurisdiction and the requirements create a high threshold, yet it may become a promising strand to establish responsibility for external migration control arrangements. In order for the functional extraterritorial jurisdiction to apply it is irrelevant if these arrangements have a formal or informal nature; however, the required causal link implies that the State is capable of realising or impeding the enjoyment of human rights in the third country. Although this requirement is loose in comparison to effective or territorial control, it will still be challenging to invoke responsibility under the functional approach if the arrangement mainly consists of funding. In such a case, it might be determinant to what extent the funding is clearly linked to conditions whose fulfilment would inevitably lead to human rights violations. However, the concept of functional jurisdiction has so far only been applied to States in relation to their obligations under the treaties they are bound by.

In order to find answers to the question of responsibility for extraterritorial human rights consequences of migration cooperation arrangements of both the EU and the EU’s Member States, we need to resort to the law on State responsibility and on the responsibility of international organisations. The Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), presented by the International Law Commission (ILC) to the UN General Assembly in 2001, provide a basis for accountability in case of migration cooperation that raises risks which could potentially amount to human rights violations.¹¹⁰ Articles 16 to 18 constitute a derivative responsibility of a State for wrongful acts commissioned by another State. With these articles, the ILC aims to ensure that a State ‘cannot do by another what it cannot do by itself’.¹¹¹ This responsibility can be invoked if a State aids or assists another State to engage in conduct that violates international obligations. The support or contribution has to be ‘significant’, but not per se essential to the commission of the act by the other State. However, the connection between the aid or assistance and the commission of the wrongful conduct must not be too remote, and, most importantly, the State must know or should have known the circumstances making the conduct of the assisted State internationally wrongful.¹¹²

Many scholars have argued that Italy, because it funds Libya’s border control activities, has a derivative responsibility for the violations of universal human rights such as the right to leave, the prohibition of torture and arbitrary detention, and the principle of non-refoulement, commissioned by the Libyan authorities.¹¹³ Given the well-documented collective expulsions and arbitrary violence committed by the Tunisian authorities, bilateral funding aimed at preventing migrants from departing to the EU might create a derivative responsibility for these funding States for these violations of human rights, including the right to leave. Apart from the EU’s funding, the extensive bilateral support to Tunisia by Italy, Spain, France, Germany and other EU States with the aim of reinforcing border control is documented in detail.¹¹⁴ In case of a common action by States, Article 47 ARSIWA provides a basis for the attribution of shared responsibility if this cooperation amounts to a wrongful act. This concept could solve difficulties in disentangling separate responsibilities, in case of a common action (by States, or by States and the EU), including an agreement with a third country or the funding of actions that lead to human rights violations.¹¹⁵

In order to recognise the attribution of responsibility to the EU, it is essential to consult the Draft Articles on Responsibility of International Organisations for Internationally Wrongful Acts (ARIO). This was presented a full decade after the ARSIWA had seen the light of day.¹¹⁶ Under these Draft Articles, the acts of EU institutions, including those of its agencies, can be attributed to the EU if they are under its effective control.¹¹⁷ The conclusion of the MoU between the EU and Tunisia by the President of the Commission and the Member States, whose acting upon the Council has not been rebutted by the Council, is therefore attributable to the EU. This also applies to its implementation in the form of funding by the Commission. If Member States are involved in the implementation of the MoU as well, Article 64 of ARIO enables the EU to establish special rules on the attribution of responsibility to the different parties. In the absence of such a division of responsibilities, the ILC takes the view that a common responsibility of the EU and the Member States can be invoked, if the agreement at stake would lead or contribute to human rights violations.¹¹⁸

If further developed and effectively applied by courts, these concepts of international responsibility can become essential in closing the accountability gaps created by the EU’s and Member States’ outsourcing of migration control. Regarding the attribution of responsibility to States, national courts and the European Court of Human Rights could apply these concepts, while the CJEU could use it to establish the responsibility of the EU in case of actions for damages.¹¹⁹ The ECtHR has developed an aquiescence or connivance test, which slightly deviates from the ILC’s concepts. Its case law implies a specific theory of state complicity, under which a state can be held responsible for the assistance it provides to a third party which conducts a wrongful act, without attribution of responsibility to that state for the third party’s conduct.¹²⁰ To the extent that Member States operate in the framework of EU law, the concepts also serve as a reference for the CJEU to establish their responsibility, in response to preliminary questions from national courts. With the current trend of ‘cooperative deterrence’, including the way it is designed (informal, non-transparent, bilateral and State-driven), the EU and Member States seem to aim at circumventing responsibility, in response to progressive case law such as the Hirsi v. Italy case.¹²¹ Tan observes deterrence policies as an international tendency, reflecting the tension between sovereignty and human rights and refugee law, which results in same practices (containing asylum seekers in countries with lower protection level) but with different avenues for legal challenges.¹²² Although Tan sees more possibilities in Europe compared to Australia, Baumgärtel concludes that both European Courts have so far been less effective in addressing this trend of deterrence policies than many lawyers and scholars generally assume.¹²³ Gammeltoft-Hansen therefore recommends strategic litigation before the above-mentioned courts to anticipate and pre-empt creative ‘next generation’ deterrence measures.¹²⁴

7 Conclusion

The EU has chosen to engage in a conditional, informal migration control partnership with Tunisia with the aim of stemming migration in exchange for intensified cooperation in other policy areas. Although this fits the trend of informalisation, conditionality and deterrence while cooperating on migration with third countries, it is striking that this deal was struck in a rush, without a proper mandate from the Council and without sufficient safeguards that all elements would be implemented or implementable. For instance, a large package of loans and grants, which initially was a substantial part of the MoU, was promised by the EU subject to the condition that Tunisia and the IMF would reach an agreement. As Tunisia failed to fulfil the conditions of the IMF, the loans and grants have stalled, but this was not even mentioned in the final version of the MoU.

This raises the question as to what extent President Saied remains committed to the other parts of the MoU. His reputation of unpredictability and authoritarian style severely hampers the possibility for the EU to work with the Tunisian administration on a proper implementation of all commitments in the MoU. More in general, third countries have not been easily incentivised to cooperate on border control and returns, just in exchange for benefits on visa facilitation or vague references to labour migration.¹²⁵

In addition to its implementation, the MoU puts the EU’s compliance with fundamental rights seriously at risk, especially as this deal aims to prevent migrants and refugees from fleeing from human rights violations in Tunisia. The reluctance to conduct ex-ante impact assessments on the basis of clear benchmarks, and to provide adequate and transparent monitoring to oversee their fulfilment during implementation, shows that the Commission and Council have chosen not to take responsibility for the fundamental rights consequences of the cooperation, despite the obligation to ensure that external actions are compliant with the EU Treaties. Although the informalisation of migration cooperation adds serious constraints to parliamentary and judicial control, this increasing tendency so far remains unchallenged. Admittedly, as this policy trend is also largely supported in the European Parliament itself, a majority of the house prefers not to insist on its institutional prerogatives, but instead to give the Council and Commission a degree of leeway for these types of deals. Moreover, these types of State-driven and untransparent negotiations also bypass authoritative conveners of international refugee law such as the UNHCR, as well as NGOs and legal scholars. The tendency for States and the EU to construct circumventions of international responsibility for cooperative deterrence and for outsourcing migration control, begs for a rapid development of the relevant concepts of international law, fuelled by anticipatory strategic litigation.

Despite the lack of implementation and effectiveness and the severe human rights concerns that this MoU poses—also because of the violations committed after the conclusion of the deal—the Commission appears to be intensifying its cooperation with Tunisia on human smuggling and wants to conclude a similar MoU with the authoritarian regime of Egypt.¹²⁶ Dealing with neighbouring countries on migration has proven to be an asset to reach an agreement on a EU Common European Asylum System. However, the lack of a willingness to equally share responsibility internally drives Northern Member States to accommodate the countries at the external borders to outsource their responsibility, no matter what. The Member States refuse to acknowledge the inconvenient truth that their eagerness to outsource responsibility to neighbouring countries makes these countries (even more) reluctant to develop an effective protection system. At the same time, as these deals empower and legitimise autocrats, they leave civil society, human rights defenders and the judiciary out in the cold, together with the EU’s external action objectives to promote human rights, democracy and good governance. This not only increases the risk of more citizens being forced to flee their country, but also of discrediting and impeding a coherent and effective foreign policy. Continuing down this line will inevitably turn against the EU’s own interest as well, as its vulnerability on migration puts mighty instruments into the hands of autocrats. The so-called reverse conditionality exercised by neighbouring autocrats, at the cost of the EU’s values and coherence, will only increase as long as the EU is not willing to engage in a fundamental reflection of its externalisation trend.