Don’t Rock the Boat: EU leaders do as little as possible to address the migrant crisis

 

Steve Peers

 

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

 

 

Detailed comments

 

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

 

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

 

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

 

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

 

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

 

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option - discussed further here - in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

 

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

 

Conclusions

 

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

 

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

 

 

Photo credit: Kenneth Roth

 

Barnard & Peers: chapter 26

 

 

Annex

 

Special meeting of the European Council, 23 April 2015 - statement

 

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text] 

 

1. The situation in the Mediterranean is a tragedy. The European Union will mobilise all efforts at its disposal to prevent further loss of life at sea and to tackle the root causes of the human emergency that we face, in cooperation with the countries of origin and transit. Our immediate priority is to prevent more people from dying at sea.

 

2. We have therefore decided to strengthen our presence at sea, to fight the traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility. Given that instability in Libya creates an ideal environment for the criminal activities of traffickers, we will actively support all UN-led efforts towards re-establishing government authority in Libya. We will also step up efforts to address conflict and instability as key push factors of migration, including in Syria.

 

3. We today commit to:

 

Strengthening our presence at sea

 

a) rapidly reinforce EU Operations Triton and Poseidon by at least doubling tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of FRONTEX. We welcome the commitments already made by Member States which will allow to reach this objective in the coming weeks;

 

Fighting traffickers in accordance with international law

 

b) disrupt trafficking networks, bring the perpetrators to justice and seize their assets, through swift action by Member State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum Support Office (EASO) and EUROJUST, as well as through increased intelligence and police-cooperation with third countries;

 

c) undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers;

 

d) at the same time, the High Representative is invited to immediately begin preparations for a possible CSDP operation to this effect, in accordance with international law;

 

e) use EUROPOL to detect and request removal of internet content used by traffickers to attract migrants and refugees, in accordance with national constitutions;

 

Preventing illegal migration flows

 

f) increase support to Tunisia, Egypt, Sudan, Mali and Niger among others, to monitor and control the land borders and routes in order to prevent potential migrants from gaining access to Mediterranean shores, building on current CSDP operations in the region, as well as on regional cooperation frameworks (Rabat and Khartoum processes); step up dialogue with the African Union at all levels on all these issues;

 

g) reinforce our political cooperation with African partners at all levels in order to tackle the cause of illegal migration and combat the smuggling and trafficking of human beings. The EU will raise these issues with the African Union and the key countries concerned, with whom it will propose the holding of a summit in Malta in the coming months;

 

h) step up cooperation with Turkey in view of the situation in Syria and Iraq;

 

i) deploy European migration liaison officers in key countries to gather information on migratory flows, co-ordinate with national liaison officers, and co-operate directly with the local authorities;

 

j) work with regional partners in building capacity for maritime border management and search and rescue operations;

 

k) launch Regional Development and Protection programmes for North Africa and the Horn of Africa;

 

l) invite the Commission and the High Representative to mobilise all tools, including through development cooperation and the implementation of EU and national readmission agreements with third countries, to promote readmission of unauthorised economic migrants to countries of origin and transit, working closely with the International Organisation for Migration;

 

m) while respecting the right to seek asylum, set up a new return programme for the rapid return of illegal migrants from frontline Member States, coordinated by FRONTEX;

 

Reinforcing internal solidarity and responsibility

 

n) rapid and full transposition and effective implementation of the Common European Asylum System by all participating Member States, thereby ensuring common European standards under existing legislation;

 

o) increase emergency aid to frontline Member States and consider options for organising emergency relocation between all Member States on a voluntary basis;

 

p) deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing;

 

q) set up a first voluntary pilot project on resettlement across the EU, offering at least 5,000 places to persons qualifying for protection.

 

4. The EU institutions and the Member States will work immediately on the full implementation of these orientations. The Presidency and the Commission will present next week a roadmap setting out work up to June.

 

5. The European Council looks forward to the Commission Communication on a European Agenda for Migration, in order to develop a more systemic and geographically comprehensive approach to migration. The European Council will remain seized of the situation and will closely monitor the implementation of these orientations. The Council and the Commission will report to the European Council in June.

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The CJEU ensures basic democratic and judicial accountability of the EU’s foreign policy

 

Steve Peers

In today’s judgment in European Parliament v Council, the Court of Justice of the European Union (CJEU) has ensured that a minimum degree of democratic and judicial scrutiny applies to the EU’s Common Foreign and Security Policy (CFSP).

The European Parliament (EP) was challenging the Council’s decision to sign and conclude (ie, ratify) a treaty between the EU and Mauritius, relating to the EU’s military operation as regards pirates in the Indian Ocean. As discussed further in the previous blog post concerning the Advocate-General’s opinion, one important aspect of this treaty (and similar treaties with other nearby States) was the inclusion of rules governing the transfer, trial and treatment of alleged pirates to Mauritius, once the EU caught them.

The dispute had two elements – substantive and procedural – which will be considered in turn.

Substantive issues

In the Council’s view, this treaty ‘exclusively’ concerned the CFSP. In that case, Article 218 TFEU (the clause which sets out the procedures for negotiating and concluding international treaties by the EU) states that the EP does not even have to be consulted. But in the EP’s view, it had the right of consent over this treaty, since it also touched upon issues of development policy and criminal and police cooperation. Article 218 provides that where a treaty concerns issues where the EU’s ordinary legislative procedure applies (such as those policy areas), the EP has a right of consent before a treaty can be concluded.

The Court assumed that the EP was not actually arguing that the EU/Mauritius treaty should also have been adopted by means of the development policy, police and judicial cooperation legal bases. So therefore it confined itself to ruling on a narrow legal point. Article 218 states that when a proposal to negotiate a foreign policy treaty is first made to the Council, the Commission and the High Representative for the CFSP shall make recommendations where that treaty relates ‘exclusively or principally’ to the CFSP.

But the CJEU ruled that the different wording (‘exclusively or principally’ when recommending a negotiation, and ‘exclusively’ when concluding a treaty) was immaterial. In its view, the basic rule in Article 218 is an underlying parallelism between the internal powers of the EP and its external powers. So where it has an internal power of consent and control (for instance, pursuant to the ordinary legislative procedure), the EP should have a corresponding external control over the conclusion of treaties.

This approach inevitably meant that the EP lost its substantive argument, since Article 36 TEU only gives the EP the power to be informed and consulted of the main elements of the CFSP.

The Court’s analysis contrasts with that of the Advocate-General, who assumed that the EP was arguing that the treaty should have had also the legal bases regarding development policy and police and judicial cooperation. (His interesting arguments were fully discussed in the previous blog post).

Procedural issues

The EP’s procedural argument was based on a new clause added by the Treaty of Lisbon (Article 218(10)), which states that the EP ‘shall be immediately and fully informed at all stages of the procedure’. In this case, the Council had informed the EP of its decision to sign and conclude the agreement over three months after it had taken it.

But before the Court could rule on the merits of this argument, it had to rule on whether it had jurisdiction to consider it. Article 275 TFEU rules out the Court’s jurisdiction as regards the CFSP, except as regards sanctions on individuals or ‘legal base’ arguments.

Nevertheless, the Court asserted its jurisdiction, arguing that the rule in the Treaty was its ‘general jurisdiction’, and so Article 275 was a ‘derogation’ which had to be ‘interpreted narrowly’. So the Court did have jurisdiction to consider issues of procedure as distinct from substance, since the procedural legal basis for CFSP treaties is Article 218, ie a provision outside the scope of the CFSP rules as such.

The Court then ruled in favour of the EP’s main argument.  Unlike the Advocate-General, it reached the common-sense conclusion that a three-month delay in informing the EP did not constitute ‘immediately’ informing it. Publishing the treaty in the Official Journal was not enough, since the purpose of the information requirement was to ensure ‘democratic scrutiny’ by the EP, including as regards legal base issues. The failure to inform the EP was an ‘essential procedural requirement’, ie a ground to annul the act concerned under Article 263 TFEU, since it was ‘an expression of the democratic principles on which the [EU] is founded’.  

This information requirement applied even though the treaty in question concerned the CFSP, where the EP had no power of consent or even consultation. The Court emphasised that the information requirement applied to any sort of treaty, and to any stage of the procedure.

Comments

If the EP had won its argument on the substantive issues, it would have gained the power of consent over most foreign policy treaties, given their links (which the Treaties in fact require) with other aspects of EU external policies. It does appear that the EP was trying to argue a more general legal base point, and so the Court’s decision to confine itself to a more technical analysis is disappointing. If the Court had ruled on the substantive legal base arguments, it would have been its first clarification of the external scope of the EU’s policing and criminal law powers, and its first clarification of the scope of CFSP powers since the Treaty of Lisbon came into force. So the missed opportunity is unfortunate. Perhaps next time, the EP will challenge a foreign policy treaty more unambiguously, so that its legal base arguments are decided on the merits.

It could have been argued that the exception (as regards CFSP) to the normal rule that the EP has consent or consultation powers over international treaties is also a ‘derogation’ from the normal rule which had to be ‘interpreted narrowly’, just like the rule limiting the Court’s CFSP jurisdiction. However, the Court adopted different rules of interpretation as regards these two issues. One could deduce that the Court is more concerned about asserting its jurisdiction than enhancing the EP’s rights.

But having said that, the Court’s ruling on the procedural point is quite significant. First of all, as regards its own jurisdiction, the Court’s ruling means that any CFSP measure can be litigated before it, as long as the legal arguments relate to a procedural rule falling outside the scope of the CFSP provisions of the Treaty (Title V of the TEU). For instance, it arguably means that the Court would have the power to rule on the compatibility of proposed CFSP treaties with EU law, since that jurisdiction is conferred by Article 218 TFEU and not expressly ruled out by Article 275. But such disputes might often include arguments about the substanceof the measure concerned (for instance, whether it would breach the EU’s human rights obligations), and it could be awkward to distinguish between procedural and substantive issues in practice.

Secondly, as for the EP’s information rights, the Court’s reference to ‘all types of procedures envisaged in Article 218’ surely means that the EP must be given information at least about the recommendations to start negotiations, the decisions to open negotiations, the negotiating directives, the suspension of agreements and the adoption of EU positions in bodies set up by agreements, since all of those measures are referred to in Article 218. This allows the EP to indicate its point of view on draft or planned treaties or measures implementing them at an early stage of the process, allowing for further democratic input into the treaty-making process.

More broadly, the CJEU quite rightly rejected the absurd view that a three month wait could constitute an ‘immediate’ notification.  It applied the literal interpretation of the Treaty rule (applying to all treaties, and to every stage of the procedure) as well as the purposive rule (advocated in the previous blog post), agreeing that the purpose of the rule was to ensure democratic scrutiny and to allow the EP to ‘make known its views’. As I previously pointed out in that blog post, such public scrutiny would be an opportunity to discuss, for instance, whether the country in question had a problematic human rights record, and therefore to influence public debate over whether the treaty in question ought to be concluded.

 

Barnard & Peers: chapter 5, chapter 24, chapter 25

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Assessing the new EU Council Guidelines on Freedom of Expression - online and offline

Professor Lorna Woods, University of Essex; co-author, Steiner and Woods, EU Law 

Yesterday the Council of the European Union adopted guidelines on freedom of expression.  As these guidelines were adopted by the Foreign Affairs Council, it is not surprising that they are aimed at implementation within the Union’s Common Foreign and Security Policy, like the ten previous guidelines on issues such as torture, the death penalty and human rights defenders.  So, while the guidelines are ‘guided’ by the EU Charter, as well as any relevant EU treaty provisions, the principal sources referred to are the provisions in the United Nations’ International Covenant on Civil and Political Rights (ICCPR) as well as the UN Human Rights Committee’s General Comment 34 on Freedom of Expression.  The list of sources contained in the Annex is far wider, however. It is also worthwhile noting that there is some discrepancy between what the EU asks of others – especially would be Member States via the Copenhagen criteria applied to planned accession candidates – and the recent practice of its own Member States (whether that be Hungary or the United Kingdom).

The Guidelines follow what might be termed a standard human rights approach to freedom of expression: that is, that freedom of expression should be interpreted broadly and exceptions narrowly (referring to the list of possible exceptions set out in Article 19(3) ICCPR as well as Article 20(2) ICCPR, on hate speech) and subject to the tests of legality, necessity and proportionality.  In explaining the significance of freedom of speech, the Guidelines refer to the significance of that freedom (especially that of the media) in democracy, but they also refer to the human element: that speech is important for self-fulfilment and autonomy, including the development of one’s identity in society, and not just instrumentally in the search for ‘truth’ or the ‘right’ political answer – important though that may be. Having said that, much of the specific points relate to the role of journalism and the media, with the underpinning assumptions about the role of the media as watchdog of those in power. 

The guidelines also note the horizontal nature of freedom of expression – especially relevant in the context of the Internet and social media, when expression is not just about public institutions and the media speaking to a passive audience (which was the model for much of the previous case law) but also the right of individuals to speak to one another and to receive each others’ views. This point has been given a higher profile in the approach of the Inter-American Court of Human Rights than traditionally has been the case in relation to Article 10 ECHR and Article 19 ICCPR. Despite this emphasis, there is recognition of the both the relationship between privacy and freedom of expression and the tension between them. Interestingly, in this document the former aspect – through consideration of the impact of surveillance on speech - may have a higher profile than the latter.

The guidelines identify some areas of priority action, and in some respects these areas of action are no surprise, starting with the need to end the impunity of those who take action against individuals for exercising their right of freedom of expression – notably journalists and media workers. In addition to condemning such actions, the EU will apparently call on the relevant state actors to take action against such threats of violence as well as violence itself.  If the EU does take action, it may provide incentives for some governments to take note of the UN General Assembly resolution on the subject, as well as the Action Plan to end impunity. In the tools section, the guidelines provide:

Abusive restrictions on freedom of expression and violence against journalists and other media actors should be taken into account by the EU when deciding on possible suspension of cooperation, notably as regards financial assistance.

This is a proposal that some involved in the campaign against impunity have been suggesting for some time.  How it works in practice remains to be seen.

The Guidelines identify the need to ensure that laws are not used to suppress freedom of expression, and that media regulation is appropriate to ensuring freedom of expression. Note that some of the points in this section go further than the regulatory position required of the Member States of the EU, specifically as regard the independence of regulatory bodies. While the EU’s communications package and the data protection regime expect that there be independent regulatory bodies, there is no such provision in the Audiovisual Media Services Directive, and there is little transparency of media ownership – both to be encouraged according to these guidelines.

The Guidelines also note the importance of freedom of expression in cyberspace, and in particular focus on the need to ensure non –discriminatory access to the Internet – though there is less detail on what this actually means beyond support for the multistakeholder model of Internet Governance – as set out by EU strategies, rather than those identified in the Internet Governance Forum or Netmundial, although engagement with these is envisaged in the tools for action. The Guidelines do note the role of private companies, and set out best practice guidelines reflecting back the UN Guiding Principles on Business and Human Rights, as understood through the EU guidance note for ICT companies on business and human rights.

The first action point, however, is ‘action at the international level to develop best practices and respect for human rights with regard to the export of technologies that could be used for surveillance or censorship by authoritarian regimes’.  The position as regards the United States is not addressed. The significance of the need to protect against excessive surveillance is, however, repeated and its adverse effect of freedom of expression noted.  Thus the guidelines specify that EU action will include the promotion of ‘the exchange of good practices to ensure that the legislation and procedures of States regarding the surveillance of communications and the interception and collection of personal data are based on the rule of law, subject to independent, effective and domestic oversight mechanisms and uphold obligations under international human rights law, including the principles of proportionality and necessity’, something which some Member States may need to think about.  The call to comply with Council Common Position 2008/944/CFSP on exports of specified military technology does not add much, but the statement that ‘the EU will ensure a structured and consistent approach to export controls of certain sensitive information and ICT items’ is potentially far reaching, though what is envisaged by this statement is unclear. Is there a concern about mobile technology that has had back doors engineered into it (at the request of certain Western governments) for example? The next sentence refers however to specific surveillance/censorship technology, suggesting a far narrower field of concern.

Finally, the Guidelines contain plans for evaluation, specifically envisaging a report in three years’ time. While some aspects may show signs of fitting in with global concerns – such as the concerns about the violence against journalists now high on the UN’s agenda or the global revulsion at mass surveillance, it remains hard for the EU successfully to preach certain behaviours when its own Member States have at best a patchy record in these areas.


Barnard & Peers: chapter 9, chapter 24

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