EuropeanMigrationLaw.eu

Asylum, immigration, free movement of people

A unique access to UE law and policies

> All the Points of view

Points of view

EU external dimension of migration: the Libyan sirens’ call?

Yves Pascouau with Franck Mc Namara

Published on 31/01/2017

European Union (EU) leaders are meeting in Malta on the 3 of February next in order to address the external dimension of migration. Their discussions will more particularly focus on Libya as 90% of maritime arrivals in Italy originate in that country. With the “success” of the EU-Turkey statement in mind, leaders are eager to replicate such an approach in Libya to reduce arrivals in Europe. However, attempts in this regard raise certain difficulties.

 

EU external dimension of migration: the Libyan sirens’ call? (630.03 ko)
Yves Pascouau with Franck Mc Namara

Since September 2015, the main political objective of EU leaders has been “to stem” migration flows to Europe. Alongside actions undertaken in conjunction with Balkan states, the EU-Turkey statement has helped to significantly reduce migration flows across the Eastern Mediterranean and Western Balkans routes. As a consequence, in 2016 the Central Mediterranean became the main migratory route to Europe with more than 181 000 arrivals coming mainly from Africa.

European Union (EU) leaders are meeting in Malta on the 3 of February next in order to address the external dimension of migration. Their discussions will more particularly focus on Libya as 90% of maritime arrivals in Italy originate in that country. With the “success” of the EU-Turkey statement in mind, leaders are eager to replicate such an approach in Libya to reduce arrivals in Europe. However, attempts in this regard raise certain difficulties.

The impossibility of an “EU-Libya Statement”

While not explicitly heralded, the idea to replicate the EU-Turkey statement in the Central Mediterranean is supported by some states at Council level. However, such an approach cannot be applied to Libya.

First, Turkey has a strong central state and Libya does not. From the Commission’s perspective, Libya faces “an unstable political situation and fragmented control over the territory and borders”. Even with the existence of a Government of National Accord (GNA), political instability prevails.

Second, many elements enshrined in the EU-Turkey statement cannot even be considered with Libya. Accession talks are excluded, as Libya is not a candidate country. Visa liberalisation is out of scope. Libya cannot be considered as a safe third country as it is not bound by any European human rights instruments and given its appalling track record on human rights.

Given this lack of negotiating points in comparison with Turkey, leverage for the EU will depend upon a financial investment. Here again, differences exist between Libya and Turkey as the purpose of each deal follows different strategies.

Clean hands strategy

The financial support offered to Turkey is aimed at improving living conditions and helping refugee populations in Turkey. In the Libyan case, the objective is to prevent people from departing from Libyan coasts and to make sure that Libyan authorities are able to stop them before they enter international waters.

EU states are indeed aware that once EU or national authorities have control over a third country national, they are bound by international and human rights rules to disembark and process them in a safe port. Currently there is not such a safe port in Libya. Hence, people would have to be disembarked and processed in Europe.

To avoid such a situation from arising, EU leaders will likely agree to grant significant financial and operational support to train and equip the Libyan coast guard and to provide support for capacity building. Hence, Libyan authorities would be better equipped and trained in intercepting migrants in their waters and would hence bear full legal responsibility in dealing with them.

This strategy could be complemented, as proposed by the Commission, with special support aimed at fighting smugglers and traffickers as well as strengthening Libyan capacities to manage migration in collaboration with the UNHCR (High Commissioner for Refugees) and IOM (International Organisation for Migration).

Additional concerns

As was the case in March 2016 with Turkey, it is likely that the European Council will plan to avoid any legally binding agreement with Libya and will propose the signature of a ”Statement” between the EU and the Libyan GNA. However, EU leaders should be cautious with this “statement approach”.

While scholars have shown that the EU-Turkey statement should be considered as being legally binding under international law, the EU Tribunal of first instance may confirm this assessment in a pending case (T-192/16). If legally binding, dealing with Libya on human rights related issues will be impossible under Article 21 of the Treaty.

In addition, The European Parliament has already been side-lined with regard to the EU-Turkey Statement and may not accept being shunned again with Libya. It is likely that the Parliament will seek to claim its powers back through judicial action at the Court of justice.

Which way ahead?

The tendency to tackle EU migration policies through a security-oriented approach has increased since 2015. The growing focus on border management, return and readmission policies has created the emergence of a “keep them out” or “kick them out” policy line. Without any changes, criticizing Trump’s policy towards Mexico may become somehow hypocritical.

Security concerns will stay on the global political agenda for years to come and states as well as organisations we will have to deal with it. However, a security-oriented approach will not and should not be the only solution at hand. If EU leaders truly wish to manage migration, they will have to complement this approach with new visions, policies and tools.

New visions require an understanding of just how global human mobility will work in the coming years and will necessitate a reassessment of our needs as well those of our neighbours, in particular those from Africa. With this in mind, states should pursue a more holistic line by factoring in policies such as development, trade, the environment and defence and by providing the link between labour and legal migration with innovative tools.

EU leaders should (re)build fair and balanced migration policies together with our African neighbours. Partnership and trust with Africa is key for our common future and prosperity. In doing so, they will be able to make migration great again.

Yves Pascouau
Editor of the website www.EuropeanMigrationLaw.eu
Director at the European Policy Centre (Brussels)
Associate senior research fellow at the Delors Institute (Paris)

Frank Mc Namara
Policy analyst at the European Policy Centre (Brussels)

Read also :

Related topics

Data and maps

Law and Case law

×

* Required