Originally posted May 2010
Since 1965, when Bourguiba’s Tunisia signed with Austria its first bilateral agreement on the repatriation of its own nationals, North African countries’ patterns of cooperation on readmission or removal have changed dramatically. Actually, readmission has acquired mounting importance in their bilateral and multilateral talks on migration management.
Readmission is the process through which individuals (e.g., unauthorized migrants, rejected asylum-seekers and stateless persons) are removed from the territory of a country, whether in a coercive manner or not. Readmission has become part and parcel of the immigration control systems consolidated by countries of origin, transit, and destination. Technically, it requires cooperation at the bilateral level with the foreign country to which the readmitted or removed persons are to be relocated, for readmission cannot be performed without its prior agreement to cooperate and to deliver travel documents or laissez-passers. Substantially, readmission permeates both domestic and foreign affairs. Practically, it is aimed at the swift removal of aliens who are viewed as being unauthorized.
It is important to stress that, despite their being framed in a reciprocal context, readmission agreements, or treaties, contain mutual obligations that cannot apply equally to both contracting parties: first, because they apply predominantly (and as expected) to the nationals of the source country; and second, because the contracting parties do not have the same structural, institutional, and legal capacity for dealing with the removal of unauthorized aliens, whether these are identified as nationals of the contracting parties or as third-country nationals transiting through the territory of a contracting party. These are the main reasons for which readmission agreements are characterized by “unbalanced reciprocities.” Moreover, whereas the interest of a destination country sounds obvious (“unwanted migrants have to be effectively removed”), the interest of a country of origin may be less evident, above all when considering that its economy remains dependent on the revenues of its expatriates living abroad (whether legally or not), or when migration continues to be viewed as a safety valve to relieve pressure on domestic unemployment.
These aspects have made the cooperation on readmission a rather thorny issue in current migration talks, particularly with North African countries. However, despite the resilience of contrasting interests and asymmetric costs, North African countries have become involved in patterns of cooperation on readmission with some of their neighboring European counterparts. This overview specifically sets out to account for this paradox with reference to a series of explanatory factors.
A Means More Than an End in Itself
If we follow the conventional wisdom, we may believe that states negotiate and conclude readmission agreements as an end in itself. However, readmission agreements are rarely an end in itself, but rather one of the many ways to consolidate a broader bilateral cooperative framework, including other strategic, and perhaps more crucial, policy areas such as security, energy, development aid, and police cooperation. Often, the decision to cooperate on readmission results from a form of rapprochement that shapes the intensity of the quid pro quo.
There are various examples which support this argument with reference to North African countries. In February 1992, Morocco and Spain signed a readmission agreement in the wake of a reconciliation process which materialized following the signing of a Treaty of Good-neighborliness and Friendly Cooperation on July 4, 1991. Morocco’s acceptance to conclude this agreement was motivated by its ambition to acquire an advanced status in its political and economic relationships with the European Union (EU), which it eventually obtained in October 2008. Likewise, in January 2007, Italy and Egypt concluded a readmission agreement as a result of reinforced bilateral exchanges between the two countries. Among others, such reinforced exchanges have allowed Egypt to benefit from a bilateral debt swap agreement, as well as from trade concessions for its agricultural produce and, additionally, temporary entry quotas for Egyptian nationals in Italy. Importantly, the rapprochement between Italy and Egypt was key to integrating the latter into the G14 while acquiring enhanced regime legitimacy at the international level. Similarly, the bilateral agreement on the circulation of persons and readmission concluded in July 2006 between the United Kingdom and Algeria, while still not in force, is no exception to the rule. This agreement, limited to the removal of the nationals of the contracting parties, took place in the context of a whole round of negotiations including such strategic issues as energy security, the fight against terrorism, and police cooperation. These strategic issues have become top priorities in the bilateral relations between the United Kingdom and Algeria, particularly following the July 2005 London bombings and the ensuing G8 meeting in Gleneagles that Algeria also attended. The Swiss-Algerian agreement on circulation and readmission, which entered into force in November 2007, also resulted from a quid pro quo based on preferential trade concessions.
All these case studies show that readmission weaves its way through various strategic policy areas. The abovementioned bilateral agreements are standard insofar as they explicitly address the cooperation on readmission, while laying down the national and international standards and norms that need to be respected to protect the rights and safety of the removed individuals.
The Drive for Flexibility
Past experience has shown that incentives alone could not secure the conclusion of readmission agreements or their concrete implementation even when such agreements were concluded. For example, the 1992 Moroccan-Spanish standard readmission agreement has never been fully implemented owing to its disruptive impact on the domestic economy and its unpopularity among Moroccan society.
Faced with the uncertainty surrounding the concrete implementation of the cooperative agreements, some EU Member States, particularly those affected by migration flows originating in North Africa (e.g., France, Spain, Italy), set out to devise flexible arrangements while opting for different ways of dealing with readmission. These include exchanges of letters, memoranda of understanding, or other types of arrangements (e.g., police cooperation agreements and pacts).
Unlike standard readmission agreements, these arrangements are flexible insofar as they do not require a lengthy ratification process, and renegotiation can easily be performed with a view to responding to new situations. Their main rationale is to secure bilateral cooperation on readmission and to avoid reneging as far as possible. Readmission is embedded in power relations that can shape the intensity of the quid pro quo. Following their proactive involvement in the reinforced police control of the EU external borders, North African countries have become gradually aware that they could play the efficiency card in the field of migration and border management, while gaining further international credibility. There can be no question that this perceptible empowerment has had serious implications on the ways in which the cooperation on readmission has been addressed, reconfigured, and codified, leading to the conclusion of (flexible and less visible) patterns of cooperation. The agenda remains unchanged, but there has been a shift in priority actions with regard to North African countries. Actually, the operability of the cooperation on readmission has been gradually prioritized over its formalization.
The dramatic increase in the number of cooperative agreements linked to readmission (whether standard or not), and involving (empowered) North African countries, cannot be isolated from the prioritization of flexibility and the drive for operability.
This prioritization process has led to the flexible reinterpretation, if not serious breach, of internationally recognized standards and norms. The most emblematic case is perhaps the way in which the Italian-Libyan cooperation on readmission has developed over the last five years. In April 2005, the European Parliament (EP) voted on a resolution stating that the “Italian authorities have failed to meet their international obligations by not ensuring that the lives of the people expelled by them [to Libya] are not threatened in their countries of origin.”4] This resolution was adopted following the action of the UN High Commissioner for Refugees (UNHCR) and various human rights associations denouncing the collective expulsions of asylum-seekers to Libya that Italy organized at that time.
A few years later, neither the April 2005 EP resolution nor the intense advocacy work of migrant-aid associations nor the action of the office of the UNHCR have contributed to substantially reversing the trend. To the contrary, Italy has broadened and reinforced its bilateral cooperation with Libya in the field of readmission, raising serious concerns among human rights organizations and the UN institutions regarding the respect of the non-refoulement principle enshrined in international refugee standards on the one hand, and the safety of the readmitted persons to Libya on the other.
The reinforcement of the bilateral cooperation became perceptible in May 2009 when Italy set out to intercept migrants in international waters before they could reach the Italian coasts to subsequently force them back to Libya. Hundreds of would-be immigrants and asylum-seekers have been forcibly subjected to these operations. In September 2009 Human Rights Watch (HRW) published a detailed report on the dreadful conditions and ill-treatment facing readmitted persons in Libya. Despite the ill-treatment evidenced in the HRW report, the European Council called on the then Swedish Presidency of the EU and “the European Commission to intensify the dialogue with Libya on managing migration and responding to illegal immigration, including cooperation at sea, border control and readmission [while underlining] the importance of readmission agreements as a tool for combating illegal immigration.”
The need to respond to perceived threats does not only rest on operable means of implementation that are often antonymous to transparency and to the respect of international commitments. It also rests on the subtle denial of moral principles or perhaps on their inadequacy to judge what is right and wrong. Such a denial does not stem from the ignorance or failure to recognize the value of international norms relating to migrants’ rights, asylum-seekers, and the status of refugees. Rather, it stems first and foremost from the prioritization of operable means of implementation. The predominant search for operability does not only undermine human rights laws. It may also alter the understanding of the notion of effectiveness. What is effective has become first and foremost operable, but not necessarily in full compliance with international standards.
There is no question that incentives to cooperate have induced North African countries to become more responsive. However, this does not tell the whole story. There are additional explanatory factors that need to be considered to understand why all the North African countries have become involved in cooperative patterns on readmission, despite the unbalanced reciprocities that characterize them. First, the abovementioned drive for flexibility has been conducive to reinforced patterns of interdependence with their European neighbors on which North African countries will continue to capitalize as countries of origin and of transit. All the more so as they realize that their cooperation, be it effective or not, allows their European neighbors to show to their constituencies that they have the credible ability “to combat illegal migration.” Second, as readmission continues to stand high in states’ current policy priorities, all North African countries have become aware that this prioritization allows their coercive regulatory capacity to be expressed when needed while acquiring enhanced regime legitimacy at the international level.
It is because of these drivers that the abovementioned asymmetric costs inherent in cooperation on readmission could be overcome in the bargaining process.
Finally, it is under these circumstances that cooperation on readmission has been branded as a lesser evil. It has enabled states to tackle a common international challenge or (perceived) threat to their immigration and asylum systems while making them perhaps less careful about their own relative gains in cooperation on readmission and undeniably far less sensitive to the reasons for which those who are viewed as illegal or undesirable left their homeland, let alone their dreadful conditions. The Italian-Libyan pattern of cooperation on readmission is perhaps the most emblematic case. Admittedly, readmission constitutes more a means than an end in itself.
1. In this overview, North African countries refer to Algeria, Egypt, Libya, Mauritania, Morocco, and Tunisia.
2. The first G14 meeting took place in L’Aquila (Italy) in July 2009. It comprises the world’s most wealthy and industrialized countries (G8) plus the G5, i.e., the group of emerging economies (Brazil, China, India, Mexico, and South Africa), and Egypt.
4. European Parliament (2005) European Parliament Resolution on Lampedusa, April 14, 2005, Text adopted P6_TA(2005)0138.
5. Human Rights Watch, Pushed Back Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers (New York: Human Rights Watch, 2009).
6. European Council, Brussels European Council, October 29-30, 2009 Presidency Conclusions, December 1, 2009, p. 12.