Breaking the legal link but not the law? The externalization of EU migration control through orchestration in the Central Mediterranean

ABSTRACT

Transcending the established problem-solving perspective, this article proposes a novel conceptualization of orchestration as a strategy to escape legal responsibility. To test our conceptual argument, we study the case of EU migration governance vis-à-vis Libya in the Central Mediterranean. We show how legal constraints stemming from the 2012 Hirsi judgement of the ECtHR drove the EU from direct extraterritorial border operation to indirect orchestration via Libyan authorities. The EU used the orchestration techniques ‘assistance’, ‘endorsement’, ‘convening’ and ‘coordination’ to establish Libyan authorities like the coast guard as central intermediaries in the field of border patrol and search and rescue. These orchestration strategies increasingly replaced EU operations on the ground, thus posing new challenges for human rights protection.

KEYWORDS:

• Orchestration
• externalization
• migration
• European Union
• border management
• Libya

Acknowledgements

This article is based upon work from COST-Action ENTER (CA17119), supported by COST (European Cooperation in Science and Technology), the Austrian Science Fund (FWF; Project Number: P 30703) as well as support from the Ikerbasque, Basque Foundation for Science. We would also like to thank Chiara Loschi and Charlott Gebauer as well as the three anonymous reviewers for their helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 We use the term ‘migrants’ for individuals traveling irregularly across the Mediterranean towards Europe, whilst we do not want to exclude the possibility that he or she may be a refugee or asylum seeker (see Human Rights Watch, 2009, p. 22).

2 The interviews were carried out in the period between May 2018 and April 2019 (see Annex).

3 If not ‘intrinsically motivated’, intermediaries may be ‘made’ like-minded by an orchestrator so that they act as if they pursue a joint governance goal (Abbott et al., 2015b, p. 723).

4 The ECtHR found Italy guilty to return 24 people from international waters to Libya although they were already on board of the Italian armed forces and thereby under ‘the continuous and exclusive de jure and de facto control of the Italian authorities’ (ECtHR, 2012, para. 81).

5 Several international treaties such as the UN Convention on the law of the Sea (UNCLOS), the 1974 Safety of Life at Sea (SOLAS) Convention and the 1979 Search and Rescue (SAR) Convention specify the obligation to rescue people in maritime distress situations.

Additional information

Notes on contributors

Patrick Müller

Patrick Müller Professor of European at the Diplomatic Academy of Vienna and at the Centre for European Integration Research at the University of Vienna. His research interests include the EU’s external relations, the EU’s role in global governance, EU-Mediterranean relations, and EU conflict resolution.

Peter Slominski

Peter Slominski is an Assistant Professor at the Centre for European Integration Research at the University of Vienna, Austria. His research focuses on EU governance and the relation of law and politics.