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“Team Europe is back in Tunis” – a study on ECHR applicability ratione personae to EU support for Tunisian border and migration management

Lundqvist, Klara LU (2023) JURM02 20232
Department of Law
Faculty of Law
Abstract
After the well-known spike in migrants crossing the Mediterranean in 2015-
2016, the EU has intensified its cooperation with third states on the field of
migration. Although there are numerous examples where such policies have
been criticised as incompatible with the principle of non-refoulement and for
not respecting migrants’ human rights, there are no CJEU rulings concerning
their compliance with EU law. This is partly explained by a trend of informality in EU external actions on the field of migration. This informality is manifested through cooperation arrangements with third states being established in soft law instruments and in disregard of EU procedures for adopting binding international agreements. For various reasons,... (More)
After the well-known spike in migrants crossing the Mediterranean in 2015-
2016, the EU has intensified its cooperation with third states on the field of
migration. Although there are numerous examples where such policies have
been criticised as incompatible with the principle of non-refoulement and for
not respecting migrants’ human rights, there are no CJEU rulings concerning
their compliance with EU law. This is partly explained by a trend of informality in EU external actions on the field of migration. This informality is manifested through cooperation arrangements with third states being established in soft law instruments and in disregard of EU procedures for adopting binding international agreements. For various reasons, such practices keeps arrangements out of reach for CJEU scrutiny.
2023 has marked a new spike in crossings over the Mediterranean, this time with a majority of departures from Tunisia. In response to this, the European Commission decided by means of an Action Plan (the Action Plan) in June
2023 to increase EU financial and technical support for Tunisian border and
migration management. In July 2023, the Commission signed a Memorandum
of Understanding with Tunisia (the MoU) including the same measures. The
EU decision to intensify cooperation with Tunisia on the field of migration
was taken at a time when numerous reports had brought attention to a deteriorating human rights situation for migrants present in Tunisia. More specifically, xenophobic rhetoric from the country’s president had provoked abuses
by Tunisian authorities directed towards sub-Saharan nationals. Due to this,
the commissioner for human rights of the European Council, amongst others,
have raised warnings about human rights impact of the EU cooperation with
Tunisia on border and migration management.
The EU is not a party to the ECHR, although accession to the Convention is
foreseen in Article 6(2) of the TEU. This means that applicability of the
ECHR and its additional protocols ratione personae to measures by the EU
depend on the attributability of such measures to EU member states. In this
essay, I examine the question of ECHR applicability ratione personae to the
EU measure of providing financial and technical support for Tunisian border
and migration management. The analysis is based on the two Commission
acts mentioned above, namely the Action Plan and the MoU. I employ a legal
dogmatic method, applying international public law to the examined EU acts.
The content of international public law on the matter of state attributability of
international organisations’ measures to their member states is determined by
means of Article 1 of the ECHR as well as Article 61 of ARIO. Article 1 of
the ECHR defines the applicability ratione personae of the Convention and
Article 61 of ARIO concerns the circumvention of international obligations
of a state member of an international organization. I use ECtHR practice and
doctrine as secondary means for the determination of law.
In this essay, I reach the following conclusions. According to Article 61 of ARIO, the ECHR and its additional protocols is most likely not applicable ratione personae to the EU measure of providing financial and technical support for Tunisian border management. This is because EU member states have not caused the EU to adopt the Action Plan or the MoU. According to ECtHR practice, states may incur responsibility for measures of international organisation without state involvement in adoption procedures of said measures. This situation arises when states fail to ensure compliance with ECHR obligations within the framework of an international organisation. In view of manifest deficiencies in the protection of ECHR rights surrounding the Action Plan and the MoU, I argue that these acts should be attributable to EU member states based on such principles.
In the last chapter of this essay, I make some concluding remarks concerning
ECHR applicability to EU soft law instruments on the field of migration. The
findings of this essay illustrate why EU accession to the Convention should
be made a priority. In the meantime, I argue that ECHR applicability ratione
personae could and should be established to informal EU measures due to the
role of the ECHR as a “’constitutional instrument of European public order’
in the field of human rights”. (Less)
Please use this url to cite or link to this publication:
author
Lundqvist, Klara LU
supervisor
organization
course
JURM02 20232
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
public international law, EU law, ECHR applicability, EU external actions, Tunisia, migration
language
English
id
9142859
date added to LUP
2024-01-27 16:46:22
date last changed
2024-01-27 16:46:22
@misc{9142859,
  abstract     = {{After the well-known spike in migrants crossing the Mediterranean in 2015-
2016, the EU has intensified its cooperation with third states on the field of 
migration. Although there are numerous examples where such policies have 
been criticised as incompatible with the principle of non-refoulement and for 
not respecting migrants’ human rights, there are no CJEU rulings concerning 
their compliance with EU law. This is partly explained by a trend of informality in EU external actions on the field of migration. This informality is manifested through cooperation arrangements with third states being established in soft law instruments and in disregard of EU procedures for adopting binding international agreements. For various reasons, such practices keeps arrangements out of reach for CJEU scrutiny. 
2023 has marked a new spike in crossings over the Mediterranean, this time with a majority of departures from Tunisia. In response to this, the European Commission decided by means of an Action Plan (the Action Plan) in June 
2023 to increase EU financial and technical support for Tunisian border and 
migration management. In July 2023, the Commission signed a Memorandum 
of Understanding with Tunisia (the MoU) including the same measures. The 
EU decision to intensify cooperation with Tunisia on the field of migration 
was taken at a time when numerous reports had brought attention to a deteriorating human rights situation for migrants present in Tunisia. More specifically, xenophobic rhetoric from the country’s president had provoked abuses 
by Tunisian authorities directed towards sub-Saharan nationals. Due to this, 
the commissioner for human rights of the European Council, amongst others, 
have raised warnings about human rights impact of the EU cooperation with 
Tunisia on border and migration management.
The EU is not a party to the ECHR, although accession to the Convention is 
foreseen in Article 6(2) of the TEU. This means that applicability of the 
ECHR and its additional protocols ratione personae to measures by the EU 
depend on the attributability of such measures to EU member states. In this 
essay, I examine the question of ECHR applicability ratione personae to the 
EU measure of providing financial and technical support for Tunisian border 
and migration management. The analysis is based on the two Commission 
acts mentioned above, namely the Action Plan and the MoU. I employ a legal 
dogmatic method, applying international public law to the examined EU acts.
The content of international public law on the matter of state attributability of 
international organisations’ measures to their member states is determined by 
means of Article 1 of the ECHR as well as Article 61 of ARIO. Article 1 of 
the ECHR defines the applicability ratione personae of the Convention and 
Article 61 of ARIO concerns the circumvention of international obligations 
of a state member of an international organization. I use ECtHR practice and 
doctrine as secondary means for the determination of law. 
In this essay, I reach the following conclusions. According to Article 61 of ARIO, the ECHR and its additional protocols is most likely not applicable ratione personae to the EU measure of providing financial and technical support for Tunisian border management. This is because EU member states have not caused the EU to adopt the Action Plan or the MoU. According to ECtHR practice, states may incur responsibility for measures of international organisation without state involvement in adoption procedures of said measures. This situation arises when states fail to ensure compliance with ECHR obligations within the framework of an international organisation. In view of manifest deficiencies in the protection of ECHR rights surrounding the Action Plan and the MoU, I argue that these acts should be attributable to EU member states based on such principles.
In the last chapter of this essay, I make some concluding remarks concerning 
ECHR applicability to EU soft law instruments on the field of migration. The 
findings of this essay illustrate why EU accession to the Convention should 
be made a priority. In the meantime, I argue that ECHR applicability ratione 
personae could and should be established to informal EU measures due to the 
role of the ECHR as a “’constitutional instrument of European public order’
in the field of human rights”.}},
  author       = {{Lundqvist, Klara}},
  language     = {{eng}},
  note         = {{Student Paper}},
  title        = {{“Team Europe is back in Tunis” – a study on ECHR applicability ratione personae to EU support for Tunisian border and migration management}},
  year         = {{2023}},
}