How can we understand EUBAM Libya and
its relation to externalisation?
MA Thesis in European Studies
European Policy
Graduate school for Humanities
University of Amsterdam
Author: Merle Prast
Student number: 6223184
Main Supervisor: Luiza Bialasiewicz
Second Supervisor: Artemy Kalinovsky
Table of Contents
List of Abbreviations
4
Introduction
5
1. Theoretical Framework
9
1.1 The securitization of migration 9
1.2 Transformation of borders 11
1.3 Externalisation of immigration policy 13
2. The External Dimension of EU Migration Policy
20
2.1 Safe third country rule 21
2.2 The path to the Tampere Summit 22
2.3 Tampere Summit 23
2.4 The European Neighbourhood Policy 24
2.5 Mobility Partnerships 26
3. The Relationship between the EU and Libya
29
3.1 Overview of EU-Libya cooperation on migration 30
3.1.1 Funding 34
3.2 Conclusion 36
4. EUBAM LIBYA 2013
38
4.1 A short introduction of EUBAM Libya 38
4.2 The follow up to EUBAM Libya 39
4.3 Criticism 40
4.4 Analysis 43
4.4.1 EUBAM Libya and its relation to externalisation 46
Conclusion
52
Appendices
55
Appendix 1 Map 55
Appendix 2 Interview Amnesty International 56
Appendix 3 Interview Paolo Cuttitta 60
Appendix 4 Interview Emanuela Paolettti 66
Appendix 6 Interview EU 73
Appendix 7 Table of activities of the mission 76
List of Abbreviations
AFSJ Area of Freedom, Security and Justice CFSP Common Foreign Security Policy
CMPD Crisis Management Planning Directorate CSDP Common Security Defence Policy DCI Development Cooperation Instrument
EC European Community
ECHR European Convention on Human Rights ECTtHR European Court of Human Rights EDF European Development Fund
EMP European Mediterranean Partnership ENP European Neighbourhood Policy
ENPI European Neighbourhood Policy Instrument EP European Union Parliament
EU European Union
EUBAM European Union Integrated Border Assistance Mission EUROSUR European Border Surveillance System
FTA Free Trade Agreement
FRONTEX European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU
HLWG High Level Working Group on Asylum and Immigration JHA Justice and Home Affairs
MPs Mobility Partnerships
NATO North Atlantic Treaty Organization NGO Non-Governmental Organization SAR Search and Rescue
TCN Third Country Nationals
UK United Kingdom
Introduction
On 14 September 2014, a boat carrying approximately 250 migrants left Libya to head for Europe. In the following night, the boat sank and only 36 of all migrants were rescued by the Libyan Coast Guard.1 The number of deaths is shocking especially as only three weeks earlier
a boat near the Libyan coast sank, also resulting in many deaths.2 It is horrific that these
people, hoping for a better life, have to die in the sea. Nevertheless, the few people that are rescued by the Libyan Coast Guard may not be awaiting a much better life. During the rule of Gadhafi, Sub-Saharan migrants have long been the victims of abuse at the hands of state authorities, which has not seemed to change since Gadhafi’s death. A rapport of Amnesty International of 2013, has shown that ‘the rights of asylum-seekers, refugees and migrants continue to be routinely violated’. 3 There is still no functioning asylum system and Libya
also lacks basic legislation protecting the rights of foreign nationals. Moreover, Libya has returned refugees to their country of origin, without considering their conditions or right to asylum.4 The European Union (EU) is well aware of all these judicial shortcomings, yet has
continued to cooperate with Libya on migration since 2005.
The importance of Libya for the EU lies in the fact that it is one of the major transit countries of migration to Europe. As a result, since the lifting of the UN sanctions, the EU has been eager to cooperate with Libya on migration issues. Considering the normative character of the EU, this may seem surprising. One explanation can be found in the aim of the EU to control its periphery in order to prevent inward immigration.5 As migration has become
primarily an issue of security, the EU has tried to involve its neighbours, especially Mediterranean countries, in its border management activities. Through externalising the management of its borders to third countries, the EU tries to create a buffer zone around itself.6 In this way the EU can circumvent taking care of migrants, aiming to prevent their
departure for European shores and land borders.
Against this backdrop, this study will critically analyse a recent EU mission, the European Union Integrated Border Assistance Mission in Libya. This mission was launched 1 Willems, M. ‘200 migrants feared drowned after boat sinks off Libya coast’, The Guardian, 15 September 2014.
2 Robinson, W. ‘Two hundred feared drowned after boat packed with migrants sinks less than a mile from Libyan coast as thousands try to cross Europe’, The Daily mail, 24 August 2014.
3 Amnesty International, 2013, p. 4. 4 Bialasiewicz, 2012, p.854.
5 Joffé & Paoletti, 2011, p.11. 6 Sterckx, 2009, p.121.
in 2013 with the aim to support the Libyan authorities in improving the country’s borders and to develop an Integrated Border Management (IBM) strategy. In particular, the thesis will engage in critical fashion with the concept of externalisation. The term externalisation was initially only used in the field of economics, indicating multinational companies that set up subsidiaries in developing countries.7 Lately, however, it has also been adopted in the
analyses of migration policies, in which the EU acts as a ‘multinational’ agency establishing subsidiaries, or rather transferring its migration policies to neighbouring countries in trying to achieve the delocalization of its migration controls.8 The EU itself never uses the term
‘externalisation’ but instead the term ‘external dimension’, which indicates ‘all the different aspects of the commitments and policies directed towards the external dimension of its borders.’9 Although the EUBAM Libya is formally part of the Common Security and
Defence Policy (CSDP), I will argue that it also belongs to the external dimension. The key research question that the thesis will seek to address, then, is, how we can understand EUBAM Libya as related to practices and policies of externalisation.
A few additional remarks have to be made. First of all, as EUBAM Libya is a quite recent and still continuing mission, the information is limited. Besides using existing academic literature and EU websites, a restricted access mission report will be used. Although it was originally a confidential document a French website, Mediapart, made it freely available by posting it together with the title: “Europe’s secret plan to securitise
Libya”. Furthermore, the analysis will be supplemented by first person interviews, conducted with experts in the field of borders, externalisation and migration; a Member of the European Parliament, other officials of the EU, and Amnesty International. I am very grateful to my interviewees for their time and knowledge as they have given me new insights on EUBAM Libya. Transcripts of these interviews can be found in the appendices. Secondly, EUBAM Libya will be viewed in the wider framework of the cooperation on migration between the EU and Libya. This is essential in order to understand the broader rationale and the
circumstances leading up to this mission. It will provide ‘the bigger picture’. Thirdly, this thesis will only focus on the relationship between the EU and Libya. Most of the existing academic literature on this subject also discuss the role of Italy, due to its close relations with Libya. Due to the abundance of literature on the subject I have decided not to do this but solely focus on the relations between the EU and Libya. Nevertheless, I would like to stress 7 Clochard & Dupeyron, 2007, p.38
8 Biondi, 2012, p. 149. 9 Biondi, 2012, p.149.
that Italy is a key player in the relations between the EU and Libya. Finally, it is important to clarify the way in which the term migrant will be used in this thesis. With this term, I will refer to economic migrants, refugees, asylum-seekers, and illegal migrants. The choice to do so is guided by pragmatic reasons of clarity; simplicity.
This thesis is divided into four chapters. Chapter one will provide the theoretical framework of this thesis. Most of the chapter will focus on the concept of externalisation. Nevertheless, this chapter will first begin by discussing the securitization of migration and how it has transformed borders, as this is essential in understanding externalisation. The section on externalisation will discuss the academic debates on the concept, and the multiple interpretations of externalisation. Besides discussing the differing definitions, approaches and instruments, this section also tries to define two common characteristics to externalisation as these will be used to analyse EUBAM Libya.
The second chapter will then focus on the external dimension of EU migration policy. It will give an overview of the development of the external dimension and its most important instruments. The external dimension was officially embraced in 1999 with the Tampere Summit. However, as this chapter will demonstrate, traces of aspects of the external dimension can already be found before 1999. Therefore, these important practices of externalisation will be discussed first. Then, there will be a section addressing the Tampere Summit and its significance for future EU migration and asylum policy. The last part of the chapter will devote attention to two important instruments within the external dimension, the European Neighbourhood Policy and the Mobility Partnerships. They will be analysed and their relation to externalisation will be explained, as both are considered to be pivotal in the aim of the EU to create a buffer zone around itself.
The third chapter will discuss the relationship between the EU and Libya. It will present an extensive overview on the cooperation on migration supplemented with critical remarks. Important to emphasise is that there have been no and still are none formal relations between the EU and Libya. It is argued that Libya has deliberately decided to stay out of policies such as the ENP in order to vary pressure on the EU for its own political purposes. A small section will also pay attention to the funds that Libya has received from the EU within the cooperation on migration. As Libya is a recipient of millions of EU aid on projects related to borders and migration, it will demonstrate the importance the EU attaches to the country.
The last chapter will serve as the critical analysis of EUBAM Libya. At first, the mission will be introduced by explaining what it is and how it came in to existence. Then,
points of criticism regarding the mission will be discussed. This is important as it shows how the mission has been perceived by different actors. The chapter will thus present the various criticisms levied by NGO’s, politicians, experts on migration and borders, and the media. The second part of this chapter will answer the main question of this thesis. In order to do this, it will first be argued that despite the fact that the mission falls under the CSDP policy, it also belongs to the external dimension. Then, the relation to externalisation will be examined by using the two common characteristics defined in chapter one. It will be argued that EUBAM Libya can, indeed be seen as one manifestation of externalisation.
1. Theoretical Framework
This section serves as the theoretical framework of the thesis. It will be argued that since migration has become securitized it has led to policies of externalisation. The main concepts discussed here will be the securitization of migration, the transformation of borders and especially externalisation.
1.1 The securitization of migration
Over the last three decades, the way migration is perceived has radically transformed within the EU. Today, migration is an issue of security as it is considered to be a threat to the security of the nation-state.10 As a result, the presence of migrants in host countries has led to
fear and rejection.11 This has not always been the case, on the contrary, in the 1950’s and
1960’s guest workers were gladly welcomed by several European countries as they were in need for extra labour. However, migration has become securitized12, ‘that is the extreme
politicisation of migration and its presentation as a treat’.13 In this process migration is
integrated in an institutional framework of internal security while being linked to terrorism, border control and transnational crime.14 The development of a common European migration
policy has played an important role in this securitizing process of migration.
In the late 1970’s migration was already the subject of policy debates but was not yet regarded as an important issue for the European Community (EC). This changed in the 1980’s when transnational and intergovernmental organisations outside the EU became interested in cooperating on the issue of migration. The developing of these policy networks laid the foundations and eventually led to a gradual incorporation of migration policy into the framework of the EC.15 This policy featured mostly restrictive and control based aspects in
order to limit migration. As migration increasingly was problematized and considered as a threat to West-European countries, the common policy was penetrated by security debates and security practices. Although it is mainly argued that migration policy was a reaction to the problem of migration this is contestable. As the way in which a policy is formulated 10 Boswell, 2007, p.591 ; Huysmans, 2000, p.758 ; Munck, 2008, p.1231
11 Munck, 2008, p.1231. 12 Huysmans, 2000, p.752. 13 Leonard, 2010, p.231. 14 Huysmans, 2000, p.760. 15 Huysmans, 2000, p.755.
affects how a subject is rendered, the subject becomes a problem because of the policy. This is exactly what happened in the case of migration. By framing migration as an issue of security, it justifies taking measures against it.16 A significant role in this process has been
played by security agencies. As security agencies are semi-autonomous they can define what is considered to be a threat or risk.17 They provide knowledge which is taken into account
while formulating policy. As the knowledge about migration is defined by security practices it can turn into a security problem. This happened with migration, when in the 1980’s security agencies (TREVI and the Schengen Group) produced knowledge connecting
migration with terrorism, transnational crime, and borders. This is what Huysmans calls ‘the security continuum' and Bigo the ‘security field.18 The network of security agents and the
knowledge they produce as well as the creation of the internal market have played an
important role in the institutionalization of migration in the internal security field of the EU.19
In regards to the internal market, a link was made between the internal borders and the external borders. It was assumed that with the abolition of the internal borders the
strengthening of the external border controls was absolutely necessary.20 This was deemed
necessary as it was expected that the establishment of the internal market would facilitate transnational crime, asylum-seekers and (illegal) immigrants. Therefore, the strengthening the of the external border controls was a requisite in order to defend the EU against these side-effects of the internal market. As this way of thinking was accepted as legitimate, migration had become a problematic side-effect of the internal market. The creation of the internal market was not only a socio-economic project anymore but had also become an internal security project.21 As a result, migration policy became institutionalized in the internal
security framework of the EC. At first it was placed in the Third Pillar of Justice and Home Affairs (JHA) until in 1997, with the Treaty of Amsterdam, it was transferred to the First Pillar.
16 Boswell, 2007, p.591; Humphrey, 2013, p.179 ; Neal, 2009, p.335 17 Bigo, 2006, p.391.
18 Huysmans, 2000, p.761 ; Bigo, 2006, p.394. 19 Walters, 2010, p.76.
20 Papadopoulos, 2007, p.98. 21 Huysmans, 2000, p.760.
1.2 Transformation of borders
As a result of the securitization of migration, EU migration policy has aimed mostly at restricting migration flows as well as reducing the number of asylum applicants.22
Especially the combat against unauthorized or illegal immigration is a main focus.23 As a
consequence, the border policy of the EU ‘has been an intensified closing, fortifying policing of the external borders’.24 Therefore, borders and subsequently border management have
become crucial aspects of migration policy. Important in this sense is to see is the way borders have transformed.
It is argued that one of the main causes for this transformation has been the
globalisation of international migration. ‘The core idea is that growing social, economic and cultural interconnectedness epitomised by the concept of ‘globalisation’ has facilitated migration in ever greater numbers between an increasingly diverse and geographically distant array of destination and origin countries.’25 It is argued that the number of migrants has
increased, migrants travel a larger distance, and more countries have become involved in international migration because they are more affected by migration movements.26 The result
is that it has affected the traditional function of borders, namely protecting the domestic space of the nation-state.27 The protecting and controlling of its own territory, and therefore also
safeguarding its borders, is what gives states their sovereignty.28 However, due to the increase
of migrant flows, an effect of globalisation, the ability to protect its territory has moved beyond the control of the state, and therefore its sovereignty. In order to re-institute
sovereignty states have increased its control over its territory and population.29 Thus, based
on the assumption that territorial states have to control their population a link between borders and control has been made. A relation that according to Bigo and Guild is not natural.30 Nowadays, borders and entry are an issue of security, accompanied by an
intensification of control over movement.31
22 Papadopoulous, 2011, p.451. 23 Walters, 2010, p.74.
24 Van Houtum, Pijpers, 2007, p.292. 25 Czaika, de Haas, 2013, p.5. 26 Czaika, de Haas, 2013, p.7. 27 Ruxandra, 2012, p.76. 28 Ruxandra, 2012, p.76-77. 29 Ruxandra, 2012, p.76. 30 Bigo & Guild, 2010, p. 260.
A border does not only resemble the territorial frontier anymore but has multiple functions now. As a result, borders are not static anymore, but should be understood as a process.32 A process through which borders are demarcated and managed.33 This bordering
process also relates to the EU. As the internal borders have been abolished, the emphasis lies on the external borders of the EU. They function as a way to differentiate between people, who can enter and who cannot, and to obtain information about every person who wants to cross the border.34 The means which the EU uses to ensure control have become increasingly
technological means.35 This migrationtechnology aims at acquiring as much information as
possible in order to have control. It is mainly characterized by geopolitical, biopolitical and chronopolitical elements of access.36 By taking fingerprints, making radiographs and iris
scans, and archiving all knowledge in European databases, the body of the migrant has become a source of information.37 On the basis of the information, the wanted and unwanted
are separated from each other, or leaving others uncertain about their future. Therefore, the borders of the EU can be described as a maze.38 Another development regarding the EU borders, is the fact that they are not fixed anymore, they do not always coincide with the nation-state frontiers. Thus, borders have become de-territorialised.39 The location of the
border has been widened, as control does not only take place anymore at the border but encompasses a much wider space of surveillance, entry requirements, monitoring and administrative actions.40 As a result, an individual can meet the virtual border much earlier
than crossing the actual physical border.41 These virtual borders exist beyond EU territory,
trying to intercept the migrants and keep them home.42 This is mainly the result of the way
the external borders of the EU are managed. The forms of EU border management have led to ‘a spatialization of border controls and logics that is being expanded both within and beyond the external borderline.’43
This thesis will focus on the border practices that expand the external border of the EU. One significant player in EU border management is the European Agency for the 32 Van Houtum, 2012, p.959. 33 Newman, 2006, p.148. 34 Dijstelbloem, 2007, p.25-26. 35 Dijstelbloem, 2007, p.15. 36 Van Houtum, 2012, p.960. 37 Dijstelbloem, 2007, p.26.
38 Christiansen & Jørgensen, 2000, p.74. 39 Walters, 2004, p. 646 ; Ruxandra, 2010, p.80. 40 Dijstelbloem, 2007, p.24.
41 Bigo & Guild, 2005, p.234. 42 Humphrey, 2013, p.191. 43 Casas-Cortes et al.,2013, p.46.
Management of Operational Cooperation at the External Borders of the Member States of the EU (FRONTEX). The agency was established in 2004 and officially aims to enhance border security by coordinating the border control operations of EU Member States, Schengen Associated Countries and other partners.44 In reality, it seems that the operations of
FRONTEX aim at preventing migrants on boats to enter the territorial waters of the EU. These border control operations are mostly performed in the Mediterranean and along the North-African coast, where boats, planes and helicopters are patrolling. As these patrols occur whenever and wherever they are needed, a sort of outward flexible border is created.45
As FRONTEX planes also fly above the African continent, the external EU border has become so ‘flexible’ that it even lies in Africa. It is argued that there is also another way in which the EU expands it border, namely, the externalisation of immigration policies (hereafter, externalisation). As externalisation is a central concept for this thesis it will be extensively discussed in the following section.
1.3 Externalisation of immigration policy
Since the Tampere Summit of 1999, the policies of the EU have taken a new direction in the management of migration flows. At the summit it was officially decided that the EU would seek cooperation with third countries in the fight against illegal immigration. This is by the EU defined as the external dimension of migration. In the academic world other terms are preferred, such as, externalisation of immigration policy or extra-territorialisation of immigration policy.46
There exists no generally accepted definition on the concept of externalisation. According to Bigo and Guild externalisation refers to ‘policies that shift the place where the control of travellers takes place from the border of the state into which the individual is seeking to enter to within the country of origin’.47 Direct in relation to the EU, Doukure and
Oger have defined externalisation as ‘the reproduction of the internal migration European policy at the external level, which implies burden-sharing of the European borders with bordering countries, and the set-up of migration management policies in the countries of origin, and especially illegal migration, following European interests, which implies a downgraded interest for development and cooperation for legal migration.’48 As becomes
44 http://frontex.europa.eu/about-frontex/mission-and-tasks, last accessed on 12.03.2014. 45 Perkins & Rumford, 2013, p.279 ; Cuttitta, 2014, p.120.
46 Lavenex, Chou, Carrera, 47 Bigo & Guild, 2005, p.234. 48 Doukoure & Oger, 2007, p.2.
clear, opinion differs whether externalisation implies burden-shifting, where responsibility has transferred to a third country, or burden sharing, where the responsibility is shared between the EU and a third country. Although there are different definitions regarding the concept of externalisation of migration there are some basic characteristics.49 First of all, it is
about the extension of policy beyond borders through which externalisation falls under the umbrella of EU external governance which will be discussed below. Through the extension of policy, the virtual border is expanded and borders thus become de-territorialized. Secondly, externalisation occurs between at least two countries where the relationship is hierarchal. This means that one country has an active role as it has ‘the monopoly on the policy making process and the basic outcomes of these decisions, the other country is passive as it
implements the policy and only decides indirectly through common meetings and
agreements’.50 In the case of the EU, the EU is the active one and the migrant sending country
the passive one.
As already mentioned above, externalisation fits into a broader concept of external governance of the EU. The extension of EU governance is a relatively recent development in European politics, and in short occurs when the legal boundary of the EU is expanded beyond institutional integration.51 The concept should not be confused with traditional foreign policy
or external relations. The governance approach is what makes the difference here. The approach promotes a more institutional, structural view, which instead of using traditional foreign policy instruments is based on a system of rules. These rules, consisting of the legal rules and the acquis communautaire, are expanded via institutional processes such as norm diffusion and policy transfer towards non-Member States. Therefore, external governance goes beyond the formal, legal authority of the EU.52 Although the term governance implies a
hierarchical structure and a voluntary aspect seems absent, this is not entirely the case with EU external governance. Besides hierarchical settings, EU external governance also involves more horizontal structures with a participatory element. Within EU external governance different types can be distinguished, mostly depending on the country or region and the policy field.
This thesis will focus on one mode of EU external governance: neighbourhood association. Defined by Lavenex, this type of association focuses on the Mediterranean 49 Aubarell et al., 2009, p.12.
50 Aubarell et al., 2009, p.12. 51 Lavenex, 2004, p.683.
countries and the eastern neighbours. 53 As every country is vulnerable to developments in
neighbouring countries it would like to control it as much as possible. This also applies to the EU. Therefore, external governance is an answer to address this interdependence with
neighbouring countries.54 In the case of the EU, these perceptions of interdependence have
become connected with security concerns. Developments in neighbouring countries that the EU considers to be a threat, have become a justification for the EU to step in. In order to ensure that these possible threats do not reach the EU, the EU tries to exert its governance in these areas. This is precisely where securitization plays a role, as more areas of governance have become framed as threats the EU wants to expand its boundary of legal authority to provide for security. 55 In the specific case of migration, the EU has externalised its own
policies of migration to third countries in order to reduce or control the migration flows. As a result, externalisation is also described as ‘policing at a distance’.56
In the literature on externalisation policy of the EU, two approaches can be
distinguished. The first one is dubbed as the “remote control approach”, with the objective of having internal effects in receiving countries in terms of security.57 This concept was
introduced by Zolberg and focuses on the idea of ensuring that possible immigrants can be shifted and sorted out before they arrive in the receiving countries.58 In this way the locus of
control is shifted further from the common territory.59 The approach is re-active and
security-based with the aim of restraining migrant flows. The second approach does not react to the migration flows, but instead tries to reduce or influences the push factors of migration. Through the use of innovative tools such as development assistance or trade it tries to address the causes of migration in order to prevent people from looking for asylum in the receiving countries.60 Therefore, this approach has been labelled as the ‘root cause approach’ and has a
pro-active and development-based character.61 Although EU policies consist of elements of
both approaches it is argued that most Member States rather prefer a policy that aims at remote-control.62 This is criticized as restrictive policing towards third countries alone is not
53 Lavenex, 2004, p.683.
54 Lavenex & Schimmelfenning, 2009, p.793. 55 Lavenes, 2004, p.686.
56 Bigo & Guild, 2005, p.234. 57 Aubarell et al., 2009, p.14. 58 Aubarell et al., 2009, p.14 59 Lavenex, 2006,p.334. 60 Boswell, 2003, p.624. 61 Aubarell et al., p.2009, p.14 62 Sterckx, 2008, p.135.
going to work. Control based measures mostly focus on the short term and have a negative impact on refugee rights.63
In 2009, a third one, the managerial approach, was introduced by Aubarell et al. In recent developments of the externalisation policies of the EU Aubarell et al. recognize another mainstream. The initiatives that were analysed do not aim clearly on control or try to address the root causes of migration, but instead it focuses on the management of flows.64 In
order to manage, a link has been made with the needs of the labour market to determine how many migrants can enter.65 The managerial approach is characterized by the ‘principle of
orderliness’ aiming to manage migration in an ordered way.66 It has the objective to maximize
opportunities and benefits for both the individual and the receiving country; at the same time it tries to minimize human trafficking and irregular migration.67 The policies that were
analysed, and form the basis for this new approach, used instruments that consisted of development instruments as well as security measures. Therefore, the managerial approach can be considered to be some kind of combination of the other two approaches.
Table 1. 68
Remote control approach Managerial approach Root cause approach Security-based Based on the needs of the
labour market
Development-based
Re-active Management Pro-active
Policy as restriction Policy for ordering Policy as innovative
In order to concrete practices of externalisation policies Aubarell et all have identified three categories. Firstly, there are the diplomatic practices, which refer to ‘activities outside the territory consisting of bilateral or multilateral meetings’.69 Furthermore, it could also refer to
re-admission agreements, “being one of the primary tools of managing migrant flows”.70 The
second category, external institutions, refers to practices of building (temporary) institutional structures aiming at the implementation of one or more dimensions of externalisation
63 Boswell, 2003, p.625. 64 Aubarell et al., 2009, p.21. 65 Aubarell et al., 2009, p.21. 66 Aubraell et al., 2009, p.22 67 Aubarell et al., 2009, p.22.
68 Table taken and supplemented from Aubarell, et al, 2009, p.15. 69 Aubarell et al., 2009, p.16.
policies.71 These structures include, for instance, immigration offices, camps and processing
centres but also joint border patrol networks such as FRONTEX. The third category consists of policies concerned with migration management such as, visa, return and repatriation policies.72
Table 2. 73
Diplomatic practices External institutions Policies Bilateral meetings;
Multilateral meetings Re-admission agreements
Camps and processing centres; Immigration offices; Border control Visa; Return; Repatriation policies
Besides approaches, the externalisation policies of migration have been divided into three strategies.74 Firstly, there is capacity-building, which involves the ‘the transfer of know-how,
technologies, equipment and legislation’.75 The second trend regards the practice of remote
control, which implies the transfer of migration control. As EU migration control instruments are being shifted to third countries, it is argued that this results in the erecting of new
boundaries that are outside EU territory.76 The last trend concerns the remote protection of
refugees and displaced persons, which means that the EU tries to increase the level of protection in third countries.
Conclusion on externalization
Taking all of this together externalisation is not an easy to define concept. There are several definitions, different approaches and strategies, and a wide range of instruments that can be determined as a form of externalisation. The prevailing assumption, ‘policies that shift the place where the control of travellers take place from the border of the state into which the individual is seeking to enter within the country of origin’77, does not seem to fully
encompass anymore the externalisation discourse. A key aspect in the externalisation debate 71 Aubarell et al., 2009,p. 17.
72 Aubarell et al., 2009, p.17.
73 Taken from Aubarell et al., 2009, 16.
74 Papadopoulos, 2007, p.98 ; Stercks, 2008, p.134. 75 Sterckx, 2008, p.134
76 Sterckx, 2008, p.134. 77 Bigo & Guild, 2005, 234.
has been the transfer of responsibility to third countries.78 Through the transfer of
responsibility, externalisation is seen as burden-shifting as the third country has to carry the burden of taking care of the migrants. However, it seems that externalisation does not always seem to imply a transfer of responsibility. Instead of becoming less involved, practices of externalisation seem to signal a deepening of collaboration. As the EU’s presence and investments in third countries on migration management keep continuing, it rather expands the involvement of the EU. Therefore, externalisation can also imply sharing the burden between the EU and a third country. Another crucial aspect in the debate on externalisation seems to be the great difference in what can be considered a practice of externalisation. As discussed earlier, visa policies, readmission agreements, construction of EU offices in third countries, are seen as externalisation practices, but also the transfer of know-how,
technologies, equipment and legislation. Although there is a difference in practices of
externalisation, they all share that they have an internal effect in the third country, which may not have been there otherwise. The difference between the practices lies in their visibility of the impact. For instance, an EU office in a third country is more visible than the transfer of know-how. Therefore, I argue that a common characteristic of externalisation can be, the extension of policy beyond territorial borders having an internal effect in the third country, but not necessarily involving the transfer of responsibility. The second prevailing assumption is an unequal relationship, where EU is the active one and the third country the passive one, taking over EU governance. Nevertheless, this may be too simplistic, as governance can also be extended within a more horizontal structure where participatory elements as well as asymmetry elements can exist.79 Therefore, the assumption of an unequal relationship seems
to be too narrow-minded; instead it is better to see if there is an aspect of imposition, where the third country takes over something from the EU, which can be laws, policies, principles, equipment, knowledge etc. The key element is that this transfer occurs in one way and not twofold, as the EU does not take over anything from the third country.
Although externalisation seems to be mostly criticized as being security and control oriented, measures which belong to the root-cause approach also fall under externalisation. Therefore, externalisation can also be development oriented and possible helping third countries becoming wealthier. Although this may give externalisation a more positive connotation, the element of imposition still exists.80 The EU itself never mentions the word
78 Paoletti, 2011, p.273.
79 Lavenex & Schimmelfenning, 2009, p.797. 80 Interview Paolo Cuttitta Appendix 3
externalisation; instead, the involvement of third countries in the EU’s migration policy is called the external dimension of migration policy, which will be discussed in the next section.
2. The External Dimension of EU Migration Policy
In this section the external dimension of migration policy of the EU will be discussed with a particular focus on externalisation practices. Although the external dimension of migration policy was not officially recognized until 1999, earlier signs of externalisation can already be found in previous years.81 Therefore, these will be discussed as well.
In 1987, a Resolution on the Right of Asylum was adopted by the European Parliament (EP), which emphasized the need to enhance economic and political cooperation with countries of origin. With the prospect of the abolition of the internal borders due to the adoption of the Single European Act in 1986 and the Schengen Agreement 1988, the EU countries wanted to enhance the external controls. As the countries were frustrated because of the lack of
efficiency of domestic migration control instruments and an increase of migration flows, the intergovernmental cooperation was directed at restricting these flows.82 As a result, the
possibility of cooperating with countries of origin or transit of migration was raised at that time. The implementation of the Schengen Agreements started from 1990 onwards, which resulted in actual practices of externalisation such as the coordination of visa policies and the placing of national liaison officers from home ministries at non-EU airports in order to check that documentation was thoroughly examined.83 In 1992, the Edinburgh European Council
emphasized the necessity of cooperating with third countries and recommended that Member States should work for bilateral or multilateral agreements with countries of origin or transit to ensure that illegal immigrants can be returned to their home countries.84 Externalisation
was also already present in the accession process as the candidate countries had to adopt the entire EU and Schengen acquis such as visa policies and border control standards. In this way the virtual border of migration control of the EU had already expanded even though the involved countries did not yet belong to the EC territory.
2.1 Safe third country rule
Another practice of externalisation which started to develop in the 1990’s was the ‘safe third country rule’. This measure allows Member States to deny the examination of an asylum claim and to send back the applicant to a third country considered to be safe by the Geneva convention where there was the possibility to apply for asylum.85 The ‘safe third
country rule’ was a consequence of a redistributive asylum system that was developed through the Schengen and Dublin Conventions of 1990, and the restrictive resolutions and conclusions of the Council of the European Union (hereafter the Council).86 The Conventions
included provisions for the adoption of more restrictive entry measures and the setting up a 82 Boswell, 2004, p.621.
83 Lavenex, 2006, p.334.
84 European Council Edinburgh Presidency Conclusions 1992. 85 Lavenex, 2006, p.334.
redistributive system which was based on the principle that it is only the first state with which the asylum-seekers have contact that is responsible for the examination of their claims.87 The
aim of the new asylum system was to relief domestic asylum procedures and only applied to the EU Member States. However, this asylum system of unique responsibility was extended through the adoption of the ‘London Resolutions’ of 1992. These resolutions were the result of a Council meeting in London and were also directed at the relief of domestic asylum procedures through the use of a harmonized approach, which would limit access to asylum procedures.88 The first resolution concerned the adoption of accelerated asylum procedures in
‘manifestly unfounded’ cases. That is the case if there is no clear substance to the applicant’s claim to fear prosecution in his own country; or the claim is based on deliberate deception or is an abuse of asylum procedures.89 The second resolution referred to the extension of the
system of redistribution to all third countries outside the Community which were considered to be ‘safe’. Through these resolutions, it was more difficult for asylum seekers to find legal protection and easier for the Member States to deny an application for asylum. ‘The London Resolutions’ also triggered the adoption of measures that provided for guiding principles on the implementation of readmission agreements. These readmission agreements mainly followed the example of the agreement that was closed between the Schengen countries and Poland in 1991.90 In the last few years, most surrounding states have been declared ‘safe third
countries’ or ‘safe countries of origin’ by the EU.91 As a result, migrants that apply for
asylum in the EU are send to these ‘safe’ countries. 2.2 The path to the Tampere Summit
Although cooperation on asylum and immigration between the Member States already existed, it was consolidated in the Treaty of Maastricht. When the Treaty entered into force in 1993, asylum and immigration policies were part of nine areas of common interest under the Third Pillar of JHA.92 Member States were able to adopt common positions and agree on joint
cooperation. The cooperation was highly intergovernmental and was outside of the legal space of the EU.93 The policy was criticized as the primary objective seemed to be finding
faster and more reliable ways to exclude asylum seekers.94 Moreover, there was a lack of
87 Lavenex, 1998, p.130. 88 Lavenex, 1998, p.130
89 European Council London Resolutions 1992. 90 Lavenex, 1998, p.134.
91 Angenendt, 2012, p.218. 92 Sterckx, 2008, p.118. 93 Guiraudon, 2003, p.269. 94 Denza, 2002, p.8.
transparency, as meetings were held behind closed door and documents were not to be accessed.95
With the signing of the Treaty of Amsterdam in 1997, it was decided that
immigration and asylum policy were transferred from the Third Pillar to the First Pillar. As a consequence, the European Commission (hereafter: the Commission) had now competence in these two areas and was able to formulate policy as well as negotiate with third countries on behalf of the EU. The provisions of the Amsterdam Treaty entered into force in 1999 so until then cooperation remained at the governmental level.96
In 1998, the High Level Working Group on Asylum and Immigration (HLGW) was established in order to formulate and adopt all measures on the matters of asylum and migration pertaining to the ‘external dimension’.97 The HLWG was the result of a Dutch
proposal which was officially adopted in the General Affairs Council of December 1998 with the explicit mandate ‘to help reduce the influx of asylum seekers and migrants into the EU by analysing and combatting the reasons for flight- taking into account the political and human rights situation.’98 The HLWG played a role in early externalisation policies as it prepared
actions plans for the countries of origin and transit of asylum seekers and migrants. Every Action Plan consisted of a strategy toward the country in question, which could be adopted by the EU. In 1999, six Action Plans were produced for Morocco, Afghanistan, Iraq, Somalia, and Sri Lanka. They were selected on the basis of the migration flows and the causes of migration. The countries were however not involved in the drafting of the Action Plans.99 The EU presented the Action Plans to the governments of the third countries to which
they could agree or not. The Action Plans were important for EU migration policy as they attempted for the first time to launch a cross-pillar approach to a number of migration countries while respecting their situation. Nevertheless, the Actions Plans were criticized as there was no dialogue with the third countries and there emphasis on security-related
measures100. It is argued that these Action Plans mostly focused on the advantages for the EU
instead of both parties.101
95 Boswell, 2003, p.623.
96 Huysmans, 2000, p.755 ; Sterckx, 2008, p.118. 97 Chou, 2009, p.550.
98 Council document, 1999a. 99 Chou, 2009, p.553. 100 Sterckx, 2008, p.121. 101 Chou, 2009, p.553.
2.3 Tampere Summit
The external dimension of the EU was officially embraced in 1999 at the Special European Council on Justice and Home Affairs in Tampere. The European Council Conclusions, also called Tampere Milestones, emphasized that a common EU policy on asylum and immigration would support further development of the Area of Freedom, Security and Justice (AFSJ). An official document stated that, ‘all competences and
instruments at the disposal of the Union, and in particular, in external relations must be used in an integrated and consistent way to build the Area of Freedom, Security and Justice.’102
The European Council Conclusions also included the four elements that were deemed necessary for the development of a common EU asylum and Immigration policy: the partnerships with countries of origin(1), a common European asylum system(2), fair
treatment of third country nationals (TCN’s) (3) ,and the management of migration flows (4). Regarding the first element, the European Council stressed the need for a
‘comprehensive approach on migration addressing political, human rights and development issues in countries and regions of origin and transit.’ This required addressing the root causes of migration and more coherence of external and internal policies. The partnerships with third countries, was emphasized as the key element of success of the policy.103 In this context, the
European Council extended the mandate of the HLWG and the drawing up of Action Plans. The second element referred to the establishment of a common European asylum system with common standards and common minimum conditions based on the Geneva Convention. In the long term this should lead to a common asylum procedure in all Member States.
Concerning the third element, the European Council stressed that fair treatment for all TCN’s had to be ensured. This should be achieved through the granting of rights to TCN’s
comparable to EU citizens and by stepping up the fight against discrimination, racism and xenophobia. The last element underlined by the Council was the need for more efficient management of migration flows at all stages. Illegal immigration and human trafficking had to be combated through the adoption of new measures and possibilities for legal immigration had to be explored. Furthermore, the Council stressed the need for a common visa policy, closer cooperation and assistance on border control services, and to provide assistance for countries for transit and origin. At last, the European Council invited the Commission, which had obtained competence in matters of asylum and immigration, to conclude readmission agreements with third countries.
102 European Council Tampere Presidency Conclusions 1999.
At the Seville Summit of the European Council in 2002, the need to cooperate with third countries was stressed again as well as the fight against illegal immigration.104 Top
priority was given to further development of visa policies, the conclusion of readmission agreements, and reparation policies.105 Furthermore, the European Council urged that any
form of future cooperation with a third country ‘should include a clause on joint management of migration flows and on compulsory readmission in the event of illegal immigration.’106
Since then, these clauses have always been included.107
2.4 The European Neighbourhood Policy
In December 2002, the Copenhagen European Council approved the plan for a ‘wider European initiative’.108 This idea has developed into the European Neighbourhood Policy
(ENP), a framework for co-operation with neighbouring countries that do not have a short term or middle term prospect for EU-membership.109 Instead, the ENP offers a privileged
partnership, ‘building upon a mutual commitment to common values’110 such as human
rights, good governance and democracy. The objective of the ENP is ‘avoiding the emergence
of new dividing lines between the enlarged EU and our neighbours and instead strengthening the prosperity, stability and security of all.’111 Therefore, the EU promotes reforms on
economic, political and security matters.112 One of the main reasons for the initiative was the
2004 enlargement.113 Besides new Member States the EU also obtained several new
neighbours. As already explained, the EU benefits from a stable neighbourhood, therefore the enlargement created an immediate need to deal with these neighbours. Besides the new Central and Eastern European countries, also southern Mediterranean countries were included, resulting in the total of 16 countries. For every country a different Action Plan is
104 Sterckx, 2008, p.122.
105 European Council Seville Presidency Conclusions 2002. 106 European Council Seville Presidency Conclusions 2002. 107 Lavenex & Stucky, 2011, p. 121.
In the same year as the Seville Summit, the mandate of the HLGW was modified resulting in several new tasks, for instance, to determine with which countries cooperation should be intensified. As a result, nine countries were selected: Albania, China, The Federal Republic of Yugoslavia, Tunisia, Russia, Libya, Turkey, and Morocco, which had turned down its previous action plan
108 Smith, 2005, p.759. 109 Khasson et al., 2008, p.217.
110 http://eeas.europa.eu/enp/about-us/index_en.htm, last accessed on 05.06.2014 111 http://eeas.europa.eu/enp/about-us/index_en.htm, last accessed on 05.06.2014. 112 Kelley, 2006, p.30.
drafted with standards and values that should be adopted as well as objectives and priorities of action.114 At the moment, 12 of the 16 countries have accepted the offered Action Plan.115
One may wonder why these third countries are willing to adopt the EU policies and standards. In order to explain this, a division has to be made between third countries with the prospect of EU membership, and third countries, which in the short-term and middle term have no prospect for EU membership. The difference lies in the thing they will get in return for taking over policies. The ‘reward’ for a candidate country is evidently membership, but for non-candidate countries this lies more difficult. Therefore, the EU has created certain incentives or ‘carrots’ in order to ensure that the third countries, which are not eligible for membership, are willing to cooperate with the EU.116 In order to be offered these incentives,
the third countries have to realize the reforms that are set out in the Action Plans.117 One of
these incentives is the possibility of closer political cooperation with the EU. Another one is the offering of a stake in the internal market of the EU. The prospect of economic integration can be alluring for neighbouring countries as most of them have the EU as main trading partner.118 At last, there is the offer of financial assistance and technical assistance. The ENP
countries can receive funds from the European Neighbourhood and Partnership Instrument (ENPI) to help them with the implementation of the Action Plans. The ENP countries can also receive financial assistance from other EU funds.119
The ENP is just one of the instruments that serve to conclude an agreement between a third country and the EU. Therefore, there are likely more and other incentives besides the ones discussed here.
Since its start the ENP has been criticized for several reasons. Firstly, the conditions laid down in the Action Plans are sometimes vague and it is unclear how the progress of the third countries is judged.120 In addition, the EU has been reluctant sometimes in the applying
of these conditions when this would possible complicate the functioning of agreements with particular neighbours.121 Furthermore, it is argued that the ENP mainly serves the EU interest.
Certain areas are prioritized above others such as, energy, migration, and border control are while other areas that may harm the EU, such as free movement of persons, are given less 114 Smith, 2005, p.763.
115 http://eeas.europa.eu/enp/index_en.htm, last accessed on 11.06.2014. 116 Reslow, 2012, p.396.
117 Khasson et al., 2008, p.231. 118 Khasson et al., 2008, p.229. 119 Khasson et al., p.231.
120 Khasson et al., 2008, p.231 ; Smith, 2005, p.765. 121 Vahl, 2006, p.10
prominence.122 It is even argued that the ENP would not be dealing with the socio-economic
problems of the EU’s neighbourhood but is an attempt to blur the external borders of the EU.123 As a result, the objective of ‘preventing new dividing lines’ between the EU and its
neighbours does not seem to be fulfilled. Another point of criticism has been that the countries in the ENP differ very much from each other but all fall under one policy. It is argued that this may lead to overgeneralisation.
The ENP is an important instrument of externalisation as migration policies and border control are transferred to neighbouring countries. As a result, the ENP countries function as a buffer zone pushing treats farther away from the EU.124.
2.5 Mobility Partnerships
Another important instrument of externalisation adopted by the EU are the Mobility Partnerships (MPs). The MPs are one of the tools of the Global Approach to Migration and Mobility (GAMM), a new framework for the external migration policy of the EU launched in 2005.125 In 2005, it was initially called the Global Approach to Migration (GAM), which
consisted of three main pillars: ‘the management of legal migration, the effective prevention of and fight against illegal immigration, and the strengthening of the relationship between migration and development’.126 The latter two ones were part of earlier approaches of the EU,
while the management of legal migration was an addition. In 2011, after an evaluation of the GAM the concept of mobility was added as it was decided that mobility of TCN’s is
significant for the EU.127 The evaluation also stressed that greater coherence with other policy
areas, such as asylum and foreign policies, was needed and that the approach should be applied more globally instead of restricted to one region.128 Besides the three existing pillars
of the GAM, another one was added aiming at the strengthening of international protection systems and the external dimension of asylum. Furthermore, the importance of the rights of migrants was underlined as it was decided that the GAMM should be migrant-centred, ‘it are people’, and that it should focus on strengthening human rights in the relevant countries.129
122 Khasson et al., 2008, p.231.
123 Del Sarto & Schumacher, 2005, p.26.
124 Browning & Joenniemi, 2008, p.532 ;Van Houtum, 2009, p.961. 125 Reslow, 2012, p.394.
126 Lavenex & Stucky, 2011, p.122. 127 European Commission, 2011c. 128 European Commission, 2011c. 129 European Commission, 2011c.
The MPs are signed between interested Member States, the Commission and third countries that are willing to cooperate with the EU on migration flows.130 The third countries
involved are expected to make efforts in order to combat illegal immigration such as, the readmission of their own nationals as well as TCN’s that have used the country as a transit country. Furthermore, the third country has to improve their border controls with the support of Member States and FRONTEX, and discourage irregular immigration through information campaigns.131 If the country in question has fulfilled the conditions, the EU Member States
can also make certain obligations ranging between four areas; legal migration, migration management, mitigation of brain drain, promotion of circular migration and facilitation of short-term visas.132 This is however, on a voluntary basis. The first MP was signed with Cape
Verde in 2008.133
It is argued that the interest of Member States for the MPs comes from the fact that they have acknowledged that legal migration may be beneficial, as it will fill the gap in the labour force due to demographic aging, and that migration does have a positive effect on the development of third countries.134 Furthermore, in 2005 the failure of the strictly restrictive
approach was visible.135 Irregular migration was not going to stop, as it became clear that
when the numbers on a particular migrant route decreased, the migrants would follow another route.136 In addition, the already existing policies on legal migration were uncoordinated, only
aiming at short-term priorities, and were not suited to bring qualified migrants to Europe. Therefore, the MP seemed to be a welcome solution.137
Nevertheless, criticism has been uttered on the MPs. The MPs are offered to third countries as ‘take it or leave it’ giving little room for negotiation for the third countries.138
Another point of criticism is that the provisions on legal migration cooperation ‘remain vague, are subject to EU Member States’ voluntary offer and are not legally binding.’ 139 It
thus depends on the willingness of the Member States. Related to this is the gap between the offering of opportunities for migration and labour mobility by EU Member States and the
130 European Commission, 2007.
131 European Commission, 2007; Angenendt, 2012, p.219. 132 Angenendt, 2012, p.219.
133 Besides Cape Verde, MP’s have been signed with Moldova, Georgia, Armenia, Azerbaijan, Morocco, and very recently Tunisia
134 Angenendt, 2012, p.217 135 Papagianni, 2013, p.284.
136 Angenendt, 2012, p.218 ; Papadetriou, Collet, 2011, p.8. 137 Angenendt, 2012, p.219
138 Reslow, 2012, p.395.
realisation of this in practice, as the Member States have not been very enthusiastic.140
Furthermore, the MPs consist mostly of repressive measures and have a main focus on the externalisation of border management, due to the incapability of the third countries to manage its own borders.141 A last point of criticism is if the MP can be perceived as an actual
‘partnership’ due to the element of conditionality. As the third countries have to abide to the rules of the EU and there is an uncertainty about their rewards, it seems that the EU benefits more from the MP’s than the third countries.142 Like with the ENP, migration policies are an
integral part of the MPs. As the third countries improve their border control, combat illegal immigration, as well as return its nationals and even TCN’s, it also contributes to creating a buffer zone around the EU.
3. The Relationship between the EU and Libya
This section will discuss the relationship between Libya and the EU. At first, Libya will be briefly introduced and the importance of Libya for the EU in terms of migration will be explained. Then, there will be an overview of the cooperation between the EU and Libya on migration supplemented with critical remarks.
Libya, situated in North- Africa, was for several decades a colony of Italy until it became independent in 1951. It is one of the more wealthier countries of the continent due its profits from its large oil reserves. Quite recently, in 2011, the country experienced a
revolution called ‘the Arab Spring’. The population had grown dissatisfied with the regime of Gadhafi, the ruling dictator for more than 40 years. Demonstrations soon turned into a war 140 Carrera et al., 2012, p.12.
141 Papagianni, 2013, p.295. 142 Carrera et al., 2012, p.14.
where pro-Gadhafi forces were fighting rebels. The country was the stage of fighting and many bloodshed until foreign intervention led to the surrender of the pro-Gadhafi’s forces. Since then, Libya is trying to become a democratic state but is experiencing many difficulties. It is known for its low human rights record, especially concerning foreign nationals.
In regard to migration, Libya is of interest to the EU because it is one of the five main routes of migration flows.143 The EU has distinguished five main routes, of which Libya
belongs to the Central Mediterranean Route. Libya functions as a key transit point as migrants from varying African routes meet here before commencing their journey towards the EU.144 Although there have been some changes in the number of migrants taking the
Central Mediterranean Route, the year 2013 witnessed a significant increase in comparison to the year before. Moreover, with 40 000 migrants this was the most used route by migrants.145
As a response to the migrant flows coming from Libya, the EU has tried ‘to cement Libya into the externalisation of Europe’s border security and migration control.’146 Libya was
invited to join to be part of the Euro-Mediterranean Partnership (EMP) as well as the ENP. In both cases, Libya has made it evident that there is no real interest in either one.147 The
professed reason was the engagement of Israel in both policy frameworks. However, it is argued that by staying outside these policies, Libya can pressure to alter policies it dislikes.148
Besides the EU, there are is also bilateral cooperation between Member States and Libya. Especially Italy and Libya cooperate closely, as Italy is most confronted with migrants from Libya and because of their historical ties.
3.1 Overview of EU-Libya cooperation on migration
For more than a decade Libya had an isolated status due to United Nations (UN) sanctions of 1992, which were imposed as a response to the bombings of a Pan Am flight in 1988, and a UTA flight in 1989.149 The EU had already imposed an arms embargo in 1986.
When the UN sanctions were suspended in 1999, the Commission as well as some of its Member States expressed interest in cooperating with Libya. The desire for cooperation became more pressing because of the open-door policy of Gadhafi, which attracted many
143 Manrique et al., 2014, p.6.
144 Hamood, 2008,p.19 ; http://frontex.europa.eu/trends-and-routes/central-mediterranean-route, last accessed on 18.06.2014.
145 http://frontex.europa.eu/trends-and-routes/central-mediterranean-route last accessed on 18.06.2014. 146 Joffé, 2011, p.233
147 Joffé, 2011, p.234.
148 Joffé, Paoletti, 2011, p.199-200. 149 Hamood, 2008, p.23.
migrants to Libya and travelling further to Europe. 150 In 2002, the number of migrants
reaching Italy had increased from 2,500 to almost 20,000.151 In 2002, the Council of the
European Union (hereafter the Council) expressed in its conclusions that the initiation of cooperation with Libya was essential.152 On this basis, the Commission conducted an
exploratory mission to Libya in May 2003, where it was assessed that Libya was very willing to cooperate on immigration.153 Five months later, the UN lifted the sanctions, which opened
up the possibility for negotiations between Libya and the EU.154 Subsequently, in October
2004 the Council lifted the arms embargo and decided to embark on a policy of engagement with Libya. Following the exploratory mission, a technical mission on migration started on 27 November 2004 in Libya. The aims of the mission were to deepen the understanding of migration related issues and to determine concrete measures for cooperation on illegal immigration155 The findings of the mission underlined the problems in Libya related to border
management, refugee protection, repatriation policy and the bad conditions in (detention) camps.156 Being aware of these problems, the Commission recommended to start cooperating
with Libya on migration.157
In June 2005, the Council decided that an ad hoc dialogue on migration issues with Libya would be launched as well as the gradual development of concrete cooperation on migration. It was stated that ‘The extent and development of such cooperation will depend on Libya's commitments on asylum and fundamental rights’.158 The Council also identified
measures to be taken towards Libya, which reveal an emphasis on border control.159 These
measures included a project at Tripoli airport to improve border control, training programs that cover external border controls and illegal immigration, the strengthening of the legal and administrative framework with a view on illegal immigration, and the sending of EU
Immigration Liaison Officers to seaports and airports in Libya for interception purposes.160
As it is argued that Libyan authorities at the time had not taken any measures to improve the situation of refugees and migrants161, it can be questioned if Libya actually fulfilled its
150 Hamood, 2008, p.20. 151 Gaub, 2014, p.124. 152 Council document, 2002. 153 European Commission, 2005. 154 Hamood, 2008, p.23. 155 European Commission, 2005. 156 European Commission, 2005. 157 European Commission, 2005. 158 Council document, 2005. 159 Hamood, 2008, p.33.
160 Council document, 2005 ; Paoletti, 2009, p.11 161 Hamood, 2008, p.28.
commitments concerning asylum and fundamental rights. Furthermore, there was still no sign of the professed adoption of a national asylum law.162 Nevertheless, the cooperation between
the EU and Libya extended.
Formal relations were still not in place between the EU and Libya when FRONTEX had been given the mandate to start negotiating with Libya on a working agreement.163 At the end
of May 2007, a second technical mission on illegal immigration to Libya was carried out. This time the mission was led by FRONTEX with the principal aim of how the EU could best support Libya in improving management of its southern borders.164 The same year, a
Memorandum of Understanding on bilateral relations was signed between Libya and the EU. Measures included focused on trade, education, and support for Libya to strengthen its borders.165 In October 2007, the External Relations Council of the EU invited the
Commission to prepare the negotiations for a Framework Agreement with Libya, which were approved at the Council meeting in July 2008. On 12 November 2008, negotiations between the EU and Libya officially commenced.166 The aims of the agreement were to include a Free
Trade Agreement (FTA), and to establish dialogue and cooperate on economic, justice, freedom and security issues.167 For the cooperation with Libya the Commission had
determined a strategy that aimed ‘to consolidate Libya’s integration in the rules based international political and economic system.’ In order to achieve this, three additional objectives were identified: ‘ensuring the successful implementation of the Framework Agreement under negotiation, jointly tackling common challenges and supporting Libya’s modernisation.’168 Furthermore, it was decided that taking the overarching strategy in
consideration as well as the Memorandum that the cooperation for the years between 2011-2013 would focus on’ improving the quality of human capital, increasing the sustainability of economic and social development and addressing jointly the challenge of managing
migration.’169 While negotiations on the Framework Agreement regularly occurred a
migration cooperation agenda was signed between Libya and the EU on October 4 2010.170
The cooperation focused on several initiatives such as, improving the protection of refugees and asylum seekers, increase dialogue and exchange information on several related migration 162 Hamood, 2008, p.28.
163 FRONTEX, 2007, p.6. 164 FRONTEX, 2007, p.6. 165 Joffé, 2011, p.242.
166 European Commission, 2009a. 167 European Commission, 2009a. 168 European Commission, 2009a. 169 European Commission, 2009a. 170 Joffe, 2011, p.244.
issues, take measures to increase mobility between the EU and Libya, border management and supporting the Libyan authorities in effective management of migration flows.171
Furthermore, an EU office would be opened in Tripoli. At the end of 2010, a Special Measure for action was approved by the Commission with the objective of supporting the Libyan authorities in enhancing the management of borders and migration flows.172
In February 2011, the demonstrations had started in Libya and soon the country was embroiled in war. As the EU condemned the actions of the Gadhafi and his army, the Framework negotiations were suspended in February by the High Representative of the EU, Catherine Ashton.173 Due to the violence in the country, many people tried to flee. In the
spring and summer of 2011, more than one million people left Libya. Most of them fled to neighbouring countries and a relatively minor percentage fled to the EU.174 In the first half
year of 2011, around 48.000 irregular immigrants from North-Africa arrived in Italy and 1.500 at Malta. This was a great increase compared to the year before. According to data of FRONTEX, in 2010 the number of illegal border crossings was 4.500 while in 2011 this was 64.300.175 In order to deal with the increased migrants from the Central Mediterranean Route,
the EU came up with several initiatives. First of all, border control and surveillance was intensified. A FRONTEX operation called HERMES started on 20 February 2011 by the request of Italy. It was a joint patrol operation with the aim of ‘detecting and preventing illegitimate border crossing to the Pelagic Islands, Sicily and the Italian mainland.’176
Furthermore, second-line border control were set up in order to identify the nationalities of the migrants as well as to search for smuggling networks. This form of second-line border control was also done by the European Policy Office (Europol). Europol supports the Member States with their fight against international crime and terrorism. A delegation of Europol was deployed in Italy in order to pre-screen migrants and find possible criminals among them.177 The involvement of Europol serves as a good example of the connection
between migration and crime that has been made through the securitization of migration. In May 2011, the Commission came with a package of proposals in order to deal with the increased migrant flows. It is argued that some of these proposals imposed restrictions on
171 European Commission MEMO, 2010. 172 European Commission, 2010.
173 Remarks by the High Representative Catherine Ashton at the end of her visit to Egypt’, 22 February 2011. 174 Carrera et al., 2010, p.4.
175 http://frontex.europa.eu/trends-and-routes/central-mediterranean-route last accessed on 18.06.2014. 176 FRONTEX Press Release, ‘HERMES 2011 running’ 21 February 2011.
