The ongoing diplomatic incident in the Ceuta’s enclave is a genuine stress test for the migration policy of the European Union. The management of the EU-Morocco –or yet Spain-Morocco- border relies on an externalised principle which consists in the management by an external third state of migration and surveillance of the said border.
Last week, Morocco allowed some 9,000 migrants to illegally enter Spain which has set in motion the European migration strategy. Most of the migrants were deported back to Africa, but this nonetheless raises the question of the porosity of the European external border as well as the effectiveness of its famous Frontex agency which is, on paper, supposed to ensure the management of these borders.
The reality is more complex, intertwining European agency with cooperation with external neighbouring states, resulting in a shaky situation, or at least subject to variations in bilateral diplomacy between the two territorial entities involved. But more than a simple policy evolution, the externalisation constitutes a genuine incarnation of a way of thinking about migration from a European perspective, an acception that is compatible with the so wide and so contested value of common European culture to which the States would be supposed to adhere.
This paper will review the diplomatic events between Morocco and Spain that have had repercussions on the migratory situation in the Enclave, after outlining a definition and genesis of the externalization of European borders and how the case of the Spanish-Moroccan border is a textbook case.
A shift in European migration policies towards external management of asylum seekers
If the European project is based on the opening of internal national borders, this is not the case for the external borders of the Union. Indeed the external European borders have to remain strong, a true wall comparing of the internal ones. This though is enhancing by the Council of the European Union recently, in order to face “the migratory crisis and the terrorist attacks on EU countries” (consilium europa). Emanating from a request from the States, the European Border and Coast Guard Agency – the so-called Frontex – was launched in 2016. Its function is to assume a closely monitoring of the EU’s external borders by an effective migration management, improving the EU’s internal security and protecting the principle of free movement people. In other words, this agency is supposed to assume the role of a classic national coast guard on a European scale with the unconcealed aim of regulating migration. However, the effectiveness of Frontex is strongly criticized, suffering from many criticisms such as the participation in unlawful operation to stop migrants from reaching Europe (Human Right Watch, 2020). The majority of associations and NGOs are opposed to Frontex, demanding a fairer Europe for migrants.
But the management of external borders also involves cooperation with neighbouring third countries, to the east and south, in an approach described as externalizing. The term “externalisation” is used by a range of migration scholars, policy makers and the media to describe the extension of border and migration controls beyond the so-called ‘migrant receiving nations’ in the Global North and into neighbouring countries or sending states in the Global South. It refers to a wide range of practices from border controls, rescue operations, to measures addressing drivers of migration (Üstübici, Stock & Schultz). To make this simpler, the management and control of Europe’s external borders is handled by the third state in question in this case rather than by the European Union in a kind of bilateral cooperation. This appears in the so-called European Agenda on Migration of 2015 which precise the modality of these policies. This agenda includes cooperation with third countries on the issues of removal or deportation; the related readmission of irregular migrants; border controls and surveillance; and the reception of asylum-seekers and refugees. Since the refugee crisis in 2015, migration has become a major stake for EU, dividing the member states among themselves. The EU then promoted the principle of more-for-more and “a fine balance of incentives and pressure” (Council, 2015) to gain cooperation with third neighbouring countries. The more-for-more principle entails tying readmission demands to other areas of cooperation, and rewarding countries for their cooperation on readmission (Carrera et al., 2016).
In reality, the EU’s penchant for outsourcing asylum came much earlier, as early as the 2000s, and will become truly central in 2003 (Rodier, 2004). At this point, European states understand that it is necessary to internationalize the issue of asylum, not only to protect refugees from their region of origin, but also to understand that migration trajectories are sometimes oriented or even initiated by more global contexts. For example, the Arab Spring has recently generated a lot of migration on a regional scale.
EU-Morocco Border: Case study
The cooperation between Spain and Morocco on border surveillance and policing, partly financed by EU funds, is often seen as a model to be promoted (The economist, 2017). The border takes place all around the Ceuta and Melilla enclave. The origin of this cooperation goes back to the 1990s through two distinct dynamics. First, for more and more member states, migration is seen as a danger from outside, but threatening the internal structure and security of the EU. The idea was growing to restrict access to the European territory to certain categories of migrants while favouring the arrival of qualified and specialized labour, the so-called “highly skilled workers”. Secondly, the development of the European integration in migration, asylum and borders notably with Schengen since the 80s had a major impact on the situation of migrants from Morocco. The imposition of visa requirements on Moroccan citizens by Spain in 1991 led to the emergence of irregular migration flows into the country and discouraged circularity and return (Haas, 2014). The Spanish-Moroccan border became the focus of the European Union to guarantee the internal mobility of the Schengen area. The result was the signature by Morocco of the Treaty of Good-neighbourliness and Friendly Cooperation on 4 July 1991 to obtain a particular statute in its relations with the EU, before signing a ‘bilateral’ readmission agreement with Spain in February 1992 following the same idea (Mrabet, 2003). This European concentration on these two southern countries has only increased during the waves of migration through the Strait of Gibraltar between 2002 and 2006, further encouraging the Union to control its borders. Here, it is important to understand the double implication of the Moroccan voluntarist attitude even though the country appears to be fulfilling a mere degrading subcontracting function. Certainly, on the one hand, Europe is relieving itself of responsibility for the management of its border while controlling migratory flows at the source, but Morocco, on the other hand, is trying to appear as a model neighbour, quick to change, positioning itself as a potential future member in a period, let’s not forget, when the rise of European enlargement was far from being over.
From this moment, the border management, control and surveillance were gradually provided by EU funding through the ANEAS Programme for Financial and Technical Assistance to Third Countries in the Area of Migration and Asylum, and then complemented and financed by the European agencies as Frontex from 2004. The border between Morocco and Ceuta now consists of two fences around an ultra-secure trench system, with surveillance systems along its length with drones and satellites. Initially, the Moroccan strategy was simply one of hot refoulement of all migrants attempting to cross the border into the Kingdom of Morocco through real policies of retention of migrants with accumulation of private personal data. This refoulement is in itself a violation of the Geneva Convention relating to the status of refugees, since it does not allow migrants to apply for asylum, as they are incarcerated before reaching the territory. In other words, they will necessarily be illegal migrants, since Spain does not give them the opportunity to regularize their situation. Numerous incidents at the borders, including the shooting of migrants under fire by the coast guard (The Guardian, 2005), have prompted Spain to change its policy somewhat. It therefore opens offices dedicated to asylum applications in Ceuta and Melilla. However, for a long time, only Syrian migrants reached these offices. The reason is simple: Morocco organized raids on its side of the border to prevent sub-Saharan migrants from applying for European asylum (Timera, 2009), bringing them into concentration camp. Since then, the situation has improved somewhat, at the initiative of the king, and it is nearly 50,000 people whose situation has been regularized in Morocco between 2014 and 2017. But these migrants are regularized in Morocco because it is impossible for them to reach Europe via the enclave, as Morocco is changing from a transition country to a destination country for migration. Migration is becoming a common occurrence in Morocco’s economic and social landscape, with sub-Saharan migrants contributing to the informal economy that still accounts for 20% of its total GDP (Atalayar, 2020).
Externalisation against International legal order
Externalisation is a strategy commonly adopted in the economic field since the 1990s to rephrase simply outsourcing, whose legal contours were more than unclear. It is therefore quite natural that in the political world, outsourcing has followed a similar trajectory, following four complementary dynamics (Migreurop, 2006). First of all, relocate because the border control is done in the country of departure and not of arrival. However, it seems to be a strategy of defense of the receiving countries, which embodies an original paradox that could lead to the malfunctioning of such policies. Secondly, outsource because the EU seek to make third countries, in this case Morocco, assume part of its policies. This makes it possible to move away from the problem of the management of migrants who do not manage to cross the border, with Europe turning a blind eye to the conditions of detention and human rights violations when it should have denounced them on its soil. Then, privatize a part of the functions which are nevertheless regalian like the control of identity. Supposed to improve the efficiency of border control, it mainly reduces the powers of the States over it. Finally, remove all sense of responsibility, making it difficult to apply international law. For example, Morocco is not a party to the European Convention on Human Rights, and migrants are not informed of their rights when they arrive on European soil. The circumvention of these international rules is therefore frequent, particularly in Morocco which, although a signatory to the Geneva Convention and the UN Convention on the Rights of Migrant Workers, does not apply these regulations (ibid). These are therefore fundamental rights that are called into question by policies such as those initiated by Europe, although it obviously does not have a monopoly on them. Article 8 of this UN Convention on the Rights of Migrant Workers proclaims, as does the 1966 International Covenant on Civil and Political Rights, the right to emigrate, in the following terms: “Migrant workers and members of their families shall be free to leave any State, including their State of origin. They have the right at any time to return to and remain in their State of origin” (Chemillier-Gendreau, 1997). The right to emigrate is a prerogative of many other fundamental rights, because it allows people to escape from dangers in their country of origin. But here outsourcing appears to be a negation of this right.
Increasingly, cooperation between the EU and third countries in charge of borders finds parallel means to readmission agreements by clauses, partnerships, dialogues, programs, agendas, etc. (Andrade & Martin, 2015). This is a way to informalize cooperation by using tools with less legal value (Cassarino, 2007). In addition, since 2006, Frontex has signed eighteen “working arrangements” with the authorities of third countries competent in immigration matters. These texts are not considered as international agreements, despite their impact on readmission procedures and police practices in third countries (Fink, 2012). Third countries responsible for European border control thus establish restrictive visa policies and prevent by all means the exit from their own territory, in particular by “criminalizing” emigration, in total disregard of the right of everyone to leave any country, including their own (Imbert, 2017). The European Union, which claims to be a proud defender of human rights and promoter of international law, thus employs strategies to circumvent the law in its cooperation with third countries.
Perspectives of current events
The exemplary model of outsourcing the EU-Morocco border must therefore be put into perspective, since it represents an extremely high human cost for migrants, as it appears difficult to articulate the “regulation” of migrant numbers with international human rights. In addition, the control of this border can only be done through the cooperation between all the territorial actors mobilized: the Spanish and Moroccan gendarmes using each other’s technological means, but also the Frontex agency and the SEAHORSE device (AENEAS) which participates in the reactivity of the coast guards. But nowadays, this cooperation is threatened by a diplomatic incident of unprecedented gravity. The leader of the Polisario independence front in Western Sahara, Brahim Ghali, went to Spain under a false identity to be treated for Covid 19 (News Wire, 2021). Morocco has demanded his repatriation so that he can be tried on Moroccan soil for war crimes, whereas Spain wants him to be tried under international law on Spanish soil. Tensions rose and the inevitable happened: Marocco let close from 8,000 migrants freely go to Ceuta breaking his oath to control the border. Since then, more than 4,000 migrants have already been returned to Morocco on May 19 (Euronews, 2021). Margaritis Schinas, EU commissioner for the European Way of Life told a Spanish radio station on Wednesday morning that Europe would “not be a victim of these tactics” and that “Ceuta is Europe, this border is a European border and what is happening there is not Madrid’s problem, it is the problem of all”. For this is indeed a major ethical and political problem. Morocco, in retaliation for the Spanish policy on Western Sahara, is letting migrants cross the border without assuming its control role. The population is manipulated, used as a toy to serve Moroccan political acts. This is what is known in international relations research as “connectivity war”, where far from using globalization to prosper, States use it as a weapon. The situation in Ceuta was catastrophic during this week, schools were closed, the vaccination campaign was suspended and the army was deployed on the territory to catch migrants and prevent further arrivals (Torreblanca, 2021). Among the migrants who arrived, there were many unaccompanied children (nearly 1,500), which makes this crisis all the more serious, because Spain cannot be content to send these children back to Morocco so easily.
This crisis is part of a more distant context in which Morocco feels invested with a position of strength after having succeeded in having President Trump recognize in 2020 the sovereignty of Morocco over the Western Sahara in exchange of some privileged relations with Israel. This of course contradicts international law, encouraging the conflict between the two entities, but also the UN resolutions on the matter (ibid). France is acquiescing to a solution including the integration of the Western Sahara to Morocco, joining his American counterpart. Spain and Algeria, the direct Morocco neighbours, are strongly opposed to this statement, and that is especially what Morocco would to change. Putting increasing pressure on Spain to go its way, Morocco is fully playing its border control card. But when the leader of the Polisario Front was hospitalized in Spain, it set the world on fire, with Morocco taking a new step by carrying out its threats. These political attacks, which play on the lives of human beings, will probably not be enough to sway the Spanish position towards the Moroccan vision of Western Sahara. First of all, because Spain is not a weak state as it was in 1975, but also because it is not alone. It is not only Spain that is affected by this border crisis, but the entire European Union. Although Morocco claims not to have problems with the rest of Europe, but only with Spain, it cannot ignore the Union by attacking only its Iberian neighbor. This is what Spain is emphasizing by asking for the support of the EU, which it has obtained, through its strategy of “mattress of interest”: in other words, the country is making the cost of the conflict higher and higher if it is prolonged, in order to make it untenable (in this case, Morocco would create an unprecedented diplomatic crisis with the whole of Europe, threatening even its economy with the continent) in order to ease the tensions. While France recognizes that it would be better for Morocco to annex the territory, the same cannot be said of other member states, especially Germany, which has enormous diplomatic influence in the EU. Regardless of what Paris says, other European governments and European institutions cannot violate the numerous legal rulings that deny Morocco sovereignty over Western Sahara, like the right of peoples to self-determination and the war crimes committed in this area. As a political organisation based on law, the EU cannot ignore the pronouncements of either its own or international courts (ibid).
Reversing the viewpoint, this is a major concern of the EU regarding the management of its own external borders. If the positions of the EU and this third state remain irreconcilable, cooperation on border management towards the south and Africa is questionable. Indeed, if the situation appears to have calmed down today, it seems illusory to hope that the root of the opposition has disappeared overnight. In this sense, the EU must find an alternative way to manage its external borders by stopping hiding behind the puppet of the neighbourhood policy. Continuing to encourage border outsourcing, in addition to embodying an outdated managerial vision of migration policies, denies the most basic human rights as we have seen in this paper. Moreover, it seems that such incidents as those that took place in May are likely to recur in the future as long as the Western Sahara issue is not resolved, if at all. The EU must therefore regain control of its borders, giving the regalian powers of identity control to Spain and allowing the regularization of migrants before the impenetrable border. Emphasis must be placed on cooperation with European agencies such as Frontex and programs such as SEAHORSE in order not to lose effectiveness and responsiveness. It is also high time that Europe considers these migrants as human beings by developing transparent and facilitated mechanisms of access to the European visa. This crisis was in any case a revelation of the tensions at work between the two countries in cooperation, but also the flaws of the system of externalisation of European borders. It is now the Union’s turn to learn from these events and to return to a national and controlled management of its borders by stopping relying on its neighbours, who are ultimately instrumentalized.
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By Mahmoud Refaat: The European Institute for International Law and International Relations.
