Shrinking the space for civil society: (De)Politicizing the obstruction of humanitarian NGOs in EU border management

ABSTRACT

In recent years, populist radical right parties that openly contest the EU’s liberal consensus have acquired a reputation for restricting the space for civil society. Developing a novel conceptual framework of obstruction, this article examines how actors from the far right and the political mainstream obstruct humanitarian NGOs. We argue that while far right actors do so in a distinctly politicised way, mainstream EU actors and governments seek to obstruct rival NGOs in a depoliticised way, so as to act in line with the EU’s norms and values. Empirically, we test our argument of different styles of obstruction for the case of EU border management in the Central Mediterranean, where NGOs have played an important role in the domain of search and rescue (SAR). Our analysis shows that initially dominated by hardliners, most notably the Italian populist right-wing Conte I government, the obstruction of SAR NGOs politicised EU-NGO relations. Under the more mainstream Conte II government, in turn, obstruction continued but relied on a more depoliticised approach. In addition, EU institutions as well as other mainstream governments in relevant flag states such as Germany or the Netherlands also resorted to similar obstruction strategies.

KEYWORDS:

• European Union
• border management
• search and rescue
• NGOs
• politicization and depoliticization

1. Introduction

Non-governmental organisations (NGOs) have long acquired a prominent role within EU governance, strengthening its effectiveness and democratic legitimacy (Heidbreder 2012; Finke 2007; Connelly and Wurzel 2010; Kutay 2014; Ruzza 2002). Yet, in recent years several international bodies have expressed concerns about the shrinking space for civil society in Europe (e.g. Council of Europe 2017; UN Human Rights Office of the High Commissioner 2018). Particular attention has been given to restrictions faced by civil society in EU countries like Hungary or Poland, which are governed by populist-radical right (PRR) parties whose positions stand in conflict with key principles of liberal democracy (Marzec 2020; Kelemen 2017; Mudde 2007, 25 and 155). What has attracted less academic attention, however, is how EU actors of the political ‘mainstream’ – including member states, the Council, the Commission or EU agencies – behave towards NGOs with competing governance objectives. This research lacuna is particularly notable given the widely shared assessment that the EU’s migration policy has been increasingly securitised in the EU and its member states (Lavenex 2001; Huysmans 2006).

Addressing this research gap, this article draws on insights from actor-centered sociological approaches, works on government-NGO relations, and research on (de-)politicisation. Bringing together previously disjointed strands of scholarship, we propose a novel obstruction model that allows us to distinguish not only between different obstruction strategies, but also between politicised and depoliticised modes of obstruction. This integrated and comprehensive perspective enables us to capture how different political actors apply NGO obstruction strategies differently. We first identify three obstruction strategies, ‘delegitimization’, ‘restriction’ and ‘deprivation’ through which EU actors may seek to prevent NGOs with competing governance strategies from working correctly or properly. Second, we argue that the EU’s normative identity offers different opportunities and constraints to distinct EU related actors, which also impacts their approach to obstruction (Herman 2017; Dennison and Geddes 2021).

In general terms, politicisation involves ‘transporting an issue or an institution into the sphere of politics’ (Zürn 2019, 977–8), where they become salient, public, and subject to political debate, polarisation, and contestation (Hutter and Kriesi 2019, 999; Börzel and Risse 2018, 85). Actors with a strong illiberal and authoritarian ideology, most notably PPR parties that have joined governments in a number of EU member states, tend to be highly critical of core liberal EU norms.¹ Hence, they can be expected to obstruct NGOs that pursue a liberal governance agenda in a ‘politicized’ way. In particular, politicised obstruction challenges the legitimacy of NGOs or legally restricts their capacity to act in a way that ostentatiously attracts public attention, increasing ‘polarization of opinions, interests or values and the extent to which they are publicly advanced towards policy formulation within the EU’ (De Wilde 2011, 566–567; De Wilde and Zürn 2012).

Actors of the political mainstream, in turn, are at pains to operate – or at least claim to operate – within established discursive and constitutional boundaries of the EU’s normative identity. Even when mainstream actors have accommodated key demands of PRR parties, they remain vulnerable to criticism to deviate from core EU norms and values. Hence, they are often anxious to depoliticise or frame their obstruction measures as being in line with the EU’s normative identity (Wagner and Meyer 2017; Moreno-Lax 2018).

To study both types of obstruction, the article focuses on the border control and search and rescue (SAR) activities of two consecutive Italian governments between 2018 and 2021 under Prime Minister Giuseppe Conte. While the first government (Conte I) included the PRR party League with its leader Matteo Salvini as Interior Minister, the second government (Conte II)² was more moderate and mainstream-oriented. As our analysis will show, both Conte governments viewed SAR activities of NGOs as a challenge to their preference for an ever more restrictive approach to migration governance. Yet, the obstruction strategies of the Conte II government and other mainstream actors reveal important differences in style. In particular, mainstream actors have opted for a ‘depoliticized’ style of obstruction, decreasing the extent to which the obstruction of SAR NGOs is publicly debated and portraying their obstruction measures as being in line with the EU’s normative identity. To bolster our argument, we provide supplementary evidence that EU institutions as well as other mainstream governments in relevant flag states such as Germany, the Netherlands or Malta have adapted similarly restrictive preferences on migration governance like Italy’s populist right-wing Conte I government. What is more, they also engaged in the obstruction of NGOs and their SAR activities in the Mediterranean, which continued even under the more mainstream Conte II government in Italy.

Besides the relevant academic literature, our analysis draws on a broad range of primary sources including EU and national policy documents, reports by NGOs, media and think tanks, legal texts as well as nine in-depth, semi-structured interviews with officials from EU-institutions, NGOs and EU member states. The article first develops our theoretical framework, formulating also key expectations about the likeliness for (de-)politicising obstruction and its various strategies. The subsequent empirical section shows how the EU’s emerging preference for an increasingly restrictive approach to external EU border management has led to a shift from the reliance on NGOs as key partners in SAR operations to comprehensive obstruction. It provides a detailed analysis of the way distinct EU related actors have employed different obstruction techniques, effectively limiting the governance capacity of NGOs as well as of their effectiveness. In particular, it distinguishes between a first politicised phase of obstruction in which Italy’s populist right-wing Conte I government played a dominant role, whilst mainstream EU actors increasingly faced increasing political costs from a highly politicised standoff with NGOs; and a second phase of obstruction in which mainstream actors, including Italy’s more moderate Conte II government, aimed at a depoliticisation of their measures towards NGOs.

2. The EU and the obstruction of rival NGOs

The EU and the majority of its member states continue to regard NGOs as important actors in multi-level EU governance (Ruzza 2011; Kohler-Koch and Quittkat 2013; European Commission 2001). Yet, in recent years we have also witnessed challenges in EU-NGO relations that exceed previous tensions that have occasionally emerged over certain governance issues (De Ville and Siles-Brügge 2017; Meunier and Czesana 2019; Allan and Hadden 2017). The 2015 so-called refugee crisis has pushed the issue of immigration (often coupled with the issue of security or terrorism) higher up the agenda of European policy-makers (Grande, Schwarzbözl, and Fatke 2019). While PPR parties have an established track-record in creating and riding an anti-immigration wave (Mudde 2004), they have also largely succeeded to pressure mainstream parties of both the left and the right to adopt similar restrictive positions on immigration (Akkerman 2018; Grzymala-Busse 2019; Odmalm 2018; Meijers 2017; Van Spanje 2010). Populist contagion of mainstream parties is also reflected in the increase of securitisation practices and discourses at the EU level post 2015 (Léonard and Kaunert 2022; Moreno-Lax 2018; Chadwick 2016; The Guardian 2015).

Often focusing on migration policy, topical research has pointed to the ‘policing of humanitarianism’ (Carrera, Vara, and Strik 2019), the ‘criminalization’ of migration and solidarity’ (Fekete 2017; Heller and Pezzani 2017) and the ‘reduction of space’ for civil society (Youngs and Echagüe 2017; Buyse 2018; Szuleka 2018). Contributing to this debate on growing challenges in EU-NGO relations, this section integrates different strategies into a coherent concept of obstruction and identifies associated institutional opportunities and constraints for different EU related actors.

2.1. The (de-)politicisation of obstruction and the EU’s normative identity

The concept of obstruction builds on core insights from actor-centered sociological approaches of European integration and applies a multi-actor, multi-layer perspective to governance (Saurugger 2014; 2016). Such a theoretical perspective allows us to have a more nuanced understanding of strategic action that transcends the familiar rational/constructivist divide and understands the variety of actors’ practices and strategies regardless of their ontological characteristics (Saurugger 2014; Kauppi 2010). Moreover, sociological accounts maintain that political action should always be conceived as action within a specific institutional setting (Kauppi 2003, 777; Jenson and Mérand 2010). Taking the EU’s institutional environment seriously is important, as it provides EU-related actors with various opportunities and constraints in the pursuance of their interests.

Different EU related actors may not always pull in the same direction or with the same intensity when it comes to obstructing NGOs. Not only may these actors diverge in their individual governance preferences, but they also differ in their ideological commitment to core EU norms and values. The fact that not all EU related actors are equally committed to the EU’s normative power identity translates into diverging expectations about their approach to obstruction. Moreover, previous research has noted that populists tend to ‘exploit failures, catastrophic equilibria and tipping points through the politicization of the specific issues that underlie them (i.e. unemployment, border control, corruption, Islamic veil, etc.)’ (Bobba and Hubé 2021, 7). In particular, PRR parties have developed a reputation for politicisation of immigration, challenging fundamental rights and delegitimizing political opponents if it fits their interest (Herman 2017; Treib, Schäfer, and Schlipphak 2021; Zürn 2021; Hutter and Kriesi 2022; Müller and Gebauer 2021). These actors benefit from an approach to obstruction that leads to politicisation, marked by a high salience of their conflict with NGOs, a polarisation of public opinion, and an expansion of audiences concerned with the conflictual relationship (De Wilde and Zürn 2012, 140). Hence, we formulate the hypothesis:

H1: The greater the ideological distance between EU related actors and rival NGOs, the greater is the likeliness that the former applies politicised obstruction against the latter.

Mainstream political actors, in turn, are generally committed to the EU’s normative identity, which is characterised by shared norms like human dignity, the rule of law and the respect for human rights and civil society actors (Manners 2002). Accordingly, they generally seek to pursue their preferences within the legal and discursive boundaries of EU norms and values. Obstructing NGOs who pursue competing governance objectives but represent and advocate these norms, e.g. by promoting the protection of refugee rights, can create substantial tensions with the EU’s normative identity. To balance these competing objectives, mainstream actors can benefit from a depoliticised and technocratic approach to obstruction, which tends to reduce attention in the public discourse, blends out unpleasant views, and avoids uncomfortable questions and debates (Flinders and Buller 2006, 307; Katz and Mair 2009). As a result, we hypothesise:

H2: The closer the ideological proximity between EU related actors and rival NGOs, the greater is the likeliness that the former resorts to de-politicised obstruction against the latter.

2.2. Obstruction strategies: delegitimization, restriction and deprivation

Drawing on the broader literature on government-NGO relations, we identify ‘delegitimization’, ‘restricting’ and ‘deprivation’ as the three main functional strategies through which EU related actors might obstruct rival NGOs. These strategies affect NGOs in different ways and they may be deployed in a more or less politicised manner.

Delegitimization aims at the removal of a claim or a claimant from the domain of moral acceptability or moral obligation (Kelman 2001). As such, delegitimization is a communicative act that can be directed both at the moral acceptability of a person, group, or organisation or at the moral acceptability of the action, policy, demand or request that reflects that claim (Suchman 1995, 574). It usually manifests itself ‘in acts of negative other-representation, acts of blaming, scapegoating, marginalizing, and excluding’ (Chilton 2004, 74), which may involve smear campaigns or public demonisation of NGOs (Van der Borgh and Terwindt 2012, 1068). While delegitimization can be motivated by moral considerations, it may also be employed in an instrumental, interest-based way. Irrespective of its particular motivation, delegitimization serves to undermine the reputation of an NGO with the public, with peer organisations and other key stakeholders, which is central to any organisation’s long-term survival and mobilisation of resources.

Politicised delegitimization claims may be directed against the liberal norms and values human rights NGOs promote. A stark example of this can be seen in EU countries like Hungary and Poland, where PRR in government have publicly criticised NGOs for being unpatriotic and for receiving payments to work against the interest of the state and its citizens (Kapronczay 2017; Müller 2016). Mainstream EU actors, in turn, will generally tend to avoid direct criticism of humanitarian objectives, norms and values of NGOs as such practices would easily backfire and undermine their own liberal credentials. As a result, they may find it attractive to frame delegitimization claims in terms of ‘apolitical’, technical standards, or scientific knowledge, pretending to pursue a supposedly legitimate goal in an objective, impartial manner (Palonen 2019, 251); or they may refrain from public delegitimization efforts altogether by keeping silent about the role played by NGOs (Wolff 2018). Their ambition is to downplay the salience of a conflict with NGOs and their liberal agenda, avoiding publicity and polarisation. This depoliticised delegitimization can help EU institutions and mainstream governments to walk the tight rope of balancing obstruction and maintaining their normative identity. Its effectiveness is further enhanced if combined with depoliticised restriction or deprivation strategies.

Restriction is an obstruction strategy where EU actors rely on legal measures and on the coercive apparatus of the state. The instrumental use of law for political goals is widely accepted among law and politics scholars (e.g. Hurd 2017; Peevers 2013; Gloppen and St. Clair 2012).³ Both state and supranational actors are well-suited to apply two different types of restrictions to advance political goals. The first strategy – which can be described as legislative lawfare – involves the adoption of new laws or complementary soft law introducing new legal requirements that make it difficult for rival NGOs to pursue their objectives. For example, states can restrict foreign funding through introducing new procedural requirements that involve mandatory government approval, burdensome registration or reporting procedures (Poppe and Wolff 2017, 472). The second type of restriction is court-centred lawfare through which state and EU actors operate within the existing legal framework, pursuing their goals mainly through reinterpretation of the law and strategic litigation (Gloppen 2018). Starting legal proceedings against NGOs may be attractive for obstructing actors as it also serves the aim to delegitimize the NGOs in the eyes of the wider public or can be used as a pretext to suspend cooperation or funding.

Restrictive measures face clear legal boundaries in terms of national and EU law and are also subject to judicial review. Yet, right-wing governments in Central European member states have demonstrated their willingness to impose far-reaching restrictions on NGOs, including on their funding, as well as criminal proceedings against human rights defenders (OMTC 2018). Whilst restriction measures that target NGOs and their staff directly often aid politicisation, mainstream actors will seek to avoid the impression that these measures have an obstructive purpose. Depoliticising restriction measures thus requires to design and implement them in a way that avoids, shortcuts or circumvents public scrutiny, such as public debate and stakeholder consultations. This may be achieved by presenting a measure as neutral as possible, e.g. by focusing on technical requirements in the alleged pursuit of a widely accepted objectives like public security (Rutzen 2015). Similarly, instead of criminalising the personnel of NGOs, legal restrictions may also be depoliticised by opting for technocratic or administrative measures, like withdrawing of licenses or starting tax reviews.

Deprivation aims at withholding crucial material, ideational or cognitive resources, which are required by NGOs for achieving competing governance objectives. Deprivation is based on the understanding that the EU, as a major international actor, controls important governance resources that it can grant to, or withhold from, NGOs (Tallberg et al. 2013). As major donors to civil society organisations, the EU and national governments can (threaten to) exclude rival NGOs from certain domestic or EU funding schemes or make it illegal to receive funds from third countries (Lavenex 2016, 8; Dubuy and Prakash 2022). Similarly, EU related actors may possess relevant information, technical know-how and expertise that they can either use to facilitate or, in case of deprivation, obstruct NGO activities. Deprivation is most likely to impair NGOs in pursuing competing governance aims if these NGOs substantively depend on EU support and governance resources in carrying out core activities. Depriving NGOs of relevant resources often occurs in a depoliticised manner, with measures being taken within a state’s administration and without a preceding public debate. However, PRR parties may have an interest in showcasing their deprivation measures, making it a part of an effort to politicise the conflict with NGOs, especially when restrictive measures are framed as actions that back up their criticism of the EU’s liberal agenda (Sargentini 2018, 13–14).

3. From cooperation to conflict: the politicization of EU obstruction against SAR NGOs

Over recent years the EU’s approach to external border management in the Central Mediterranean has gone through different stages. Following the deadly Lampedusa shipwreck of a boat carrying migrants in October 2013, frontline states like Italy took on a prominent role in search and rescue. The Italian navy operation ‘Mare Nostrum’ became central in managing and assisting migrants in distress at sea. Yet, this initial humanitarian response to the ‘migration crisis’ was increasingly challenged by the EU’s inability to forge a meaningful burden-sharing agreement as well as the persistent fear of large-scale migration from North Africa and Asia (Parkes 2021; Council of the EU 2021). For Italy it became increasingly clear that rescuing migrants in the Mediterranean came with the Dublin-induced obligation of processing, and eventually ‘owning’ them, without the prospect of meaningful support or solidarity by other member states. Against this backdrop, Italy suspended its Mare Nostrum operation, creating a void that has been increasingly filled by humanitarian NGOs. At first, the EU and national governments closely cooperated with SAR NGOs. Yet, the EU’s approach to border management in the Mediterranean soon became dominated by political ‘hardliners’ – most notably by representatives of Italy’s populist right-wing Conte I government. As we will show, the Italian government engaged in a politicised obstruction of the activities of SAR NGOs, resulting in a highly visible public standoff with SAR NGOs. Whilst obstruction measures were early on also supported by a range of mainstream EU actors, these actors were increasingly challenged by counter measures initiated by NGOs, who blamed the EU for failing to live up to its own norms and values.

3.1. Italy’s Conte I government and the EU’s politicised obstruction of SAR NGOs

Changes in the EU’s attitude towards SAR NGOs become first apparent in December 2016, when a confidential Frontex report that was leaked to the media insinuated that criminal networks had smuggled migrants on an NGO vessel and that migrants had been warned not to cooperate with Italian authorities or Frontex (Robinson 2016; Frontex 2017, 32; European Commission 2020: para. 9; Kingsley and Traynor 2015; ARD 2020). Subsequently, the activities of SAR NGOs were particularly harshly criticised by political hardliners in Italy during the first government of Prime Minister Conte (June 2018 – September 2019), which was formed by a coalition of the Five Star Movement and the PRR League. This delegitimization of SAR NGOs was part of a broader populist mobilisation discourse marked by nationalism, exclusionary politics, anti-migration attitudes and a criticism of liberal elites (Berti 2021; Cervi, Tejedor, and Alencar Dornelles 2020; Rivera Escartin 2020). Members of the short-lived Conte government were anything but shy to delegitimize the activities of SAR NGOs, with then minister of Interior Matteo Salvini from the League publicly labeling NGO’s as ‘accomplices of human traffickers’ (Horowitz 2019).

In line with an increasingly polarised domestic debate on migration, the public delegitimization of SAR NGOs was increasingly accompanied by court-centred lawfare, which involved measures that were widely debated in public sphere both in Italy and beyond.⁴ Among other things, Italian authorities seised the SAR vessel Iuventa of the German NGO Jugend rettet and launched legal proceedings against individual crew members. In March 2021, after three years of investigation, Italian magistrates formally charged 21 individuals and three human rights groups with aiding illegal immigration (Reuters 2021). In another case, a court in Catania stated that the members of Doctors without Borders should stand trial over accusations that they illegally dumped potentially hazardous waste at Italian ports after rescue missions carried out by the Aquarius and Vos Prudence boats (Reuters 2021).

The Italian Government also used legislative lawfare strategies to impair the work of SAR NGOs. Already under the centre-left government of prime minister Paolo Gentiloni (December 2016 – June 2018), Italy – with the political and legislative support of the Commission as well as the Council – had drafted and adopted a Code of Conduct for SAR NGOs operating in the Central Mediterranean in 2017 (ECRE 2017; Cusumano 2019). While the Code of Conduct is a legally non-binding document, it places various restrictions on NGOs.⁵ Legal obstruction became particularly politicised under then interior minister Matteo Salvini. In this phase of ‘loud politics’, criminalising NGOs frequently went hand in hand with the Italian authorities’ refusal to let SAR NGOs land and refugees disembark (Dennison and Geddes 2021; Tondo 2018; BBC 2018; Cusumano and Villa 2021, 30). Specifically, the Italian government resorted to legislative lawfare strategies⁶ to prohibit SAR NGOs to enter, transit through or stop in Italian territorial waters (Schatz and Fantinato 2020; Maccanico 2019).

The described politicised delegitimizations and restrictions against SAR NGOs were complemented by deprivation measures imposed by a range of EU related actors. The surveillance of the Mediterranean covers extensive operational areas and requires substantive resources. EU actors like Frontex play an important role in carrying out and coordinating surveillance activities. Frontex is operating the European Border Surveillance system (EUROSUR) and shares information collected from satellites and other surveillance tools used by the European Maritime Safety Agency and the EU Satellite Centre (European Commission 2016). Moreover, national authorities in EU member states, most notably the Maritime Rescue Coordination Centre (MRCC) in Rome, occupy a central role in coordinating SAR activities in the Central Mediterranean. In the aftermath of the 2015 migration crisis, NGOs have regularly coordinated their SAR activities with the Italian MRCC (Cusumano 2018; ReliefWeb 2019).

Yet, with EU actors adopting an increasingly restrictive approach to border management, SAR NGOs frequently found themselves in a situation where authorities in charge of coordinating SAR operations refused to cooperate with them, where their calls for assistance were ignored, and where NGO ships were sidelined in rescue operations (Council of Europe 2021, 19). In addition to the refusal to share information or communicate with SAR NGOs, the approach to external migration governance of key EU related actors also increasingly deprived NGOs of the operational space to conduct SAR operations. The EU’s growing cooperation with the authorities of coastal states like Libya provides a case in point. Spearheaded by Italy, the EU has supported Libyan authorities to establish an own SAR zone within which NGOs are not allowed to conducting SAR activities by their own (InfoMigrants 2020a). Simultaneously, Italy has declined responsibility to assign a place of safety to migrants rescued in waters for which Libyan authorities were now responsible (Müller and Slominski 2021; Statewatch 2019).

3.2. NGOs counter measures: challenging the EU’s normative identity

The combined weight of the EU’s obstruction measures took their toll on the work of SAR NGOs, with several of them having to downsize or even suspend their activities. To defend their role in the SAR domain, NGOs began to build-up and professionalise their public relations and legal departments, contracted and cooperated with external lawyers, and began to share their experiences and information in regular coordination meetings (interview 1). Not only did the communication activities of NGOs detail numerous obstruction measures and their incompatibility with the EU’s normative power narrative or with existing refugee law, they also portrayed their own role as being the ‘true’ keeper of the EU’s normative identity (interview 1 and 6). This proved to be a problem for the EU and member state governments of the political mainstream, who faced growing public criticism.

Overall, SAR NGOs have displayed a remarkable capacity to challenge legal restrictions imposed on their activities. FRA data from 2020 showing that only two out of 52 legal proceedings against SAR NGOs resulted in a condemnation, which played into their arguments that they were treated unfairly (FRA 2021). Moreover, in conjunction with other civil society actors such as think tanks and academics SAR NGOs developed a detailed counter-narrative that challenged core claims voiced against them, whilst reminding the EU that the ‘orchestrated campaign’ against them violated core norms and principles that underpin the EU’s own identity as an international actor (MSF 2021b, 2; interview 1).

The most comprehensive piece of counter analysis was a report entitled ‘blaming the rescuers’ that was produced by a branch of Forensic Architecture, a research agency that works in close partnership with civil society organisations. Collecting detailed information from official documents, statistics, interviews with stakeholder, photographs and maps, the report challenged core delegitimizing claims voiced against SAR NGOs, including the depiction of ‘NGO’s as a pull-factor’ and their alleged contribution to a ‘worsening of smugglers’ tactics’ and to ‘increasing the danger of crossings’ (Forensic Oceonography 2017; see also Cusumano and Villa 2021). SAR NGOs also offered detailed information on EU or government obstruction strategies, gave interviews to media representatives or invited journalists to report from SAR missions on NGO vessels (euronews 2021; see also euobserver 2021). Yet, as we will show in the remainder of this article, instead of ending their obstruction efforts in light of growing public pressure from NGOs, mainstream actors simply refined them by embarking on a depoliticised obstruction strategy.

4. The obstruction of SAR NGOs through ‘depoliticised measures: balancing non-entrée policy with the EU’s normative identity

With the formation of the more mainstream-oriented Conte II (September 2019 – February 2021) government in Italy, which did no longer include the PRR League party, efforts were made to depoliticise the standoff with SAR NGOs. Members of the Conte II government largely refrained from high profile public criticism of SAR NGOs after taking office in September 2019. Simultaneously, Italy, as well as other EU member states like Germany and the Netherlands increasingly focused on technical matters of navigational safety, protection of the marine environment and maritime labour in relation to SAR NGOs. Italian authorities increasingly made SAR NGO vessels subject to so-called ‘port state controls’ (interviews 1 and 4), a system of inspection designed to verify that commercial vessels comply with international rules of navigational safety, protection of the marine environment and maritime labour that are standardised by the Paris Memorandum on Port State Control (Paris MoU 1982)⁷ and EU Directive 2009/16/EC (Il Manifesto 2021). Between 2019 and July 2021, 16 port state controls were carried out on SAR NGO vessels by Italian authorities, leading up to 13 detentions with a total duration of 1,078 days (MSF 2021a).

Not only did the frequency and strictness of port state controls increase substantively, the inspections of SAR NGO vessels were also carried out according to different criteria than those applying to other commercial vessels (Il Manifesto 2021). Given Italy’s reinterpretation of relevant maritime law, equipment and safety procedures were no longer approved for the members of the crew only, but by also by taking shipwrecked people into account.⁸ Instead of attacking SAR NGOs’ objectives and activities head on, this depoliticised variant of court-centered lawfare allowed Italian port authorities to detain SAR NGOs’ vessels for ‘transporting too many passengers’, ‘having too many life-jackets on board’, ‘causing environmental pollution’ or having a sewage system that is not designed for the number of possibly rescued persons (ibid.). The depoliticisation of the political discourse on SAR NGOs was further reinforced during the COVID-19 pandemic with a focus on public health, which resulted in appeals to suspend their operational activities during the pandemic or the closures of Italian, Maltese or Cypriot ports on the basis of public health concerns (MSF 2021a, 3; InfoMigrants 2020b; MSF 2021b).

Depoliticised obstruction measures by port authorities were complemented by legislative measures of flag states. In April 2019, the Netherlands introduced new rules imposing ‘far-reaching safety and certification requirements with immediate effect’ on SAR NGOs operating under its flag (Prakken d'Oliveira 2019). Germany soon followed suit, making amendments to its shipping security adjustment regulation (Schiffssicherheitsverordnung) and the sea sport boat regulation (See-Sportbootverordnung) that made it more difficult for smaller SAR NGO vessels to comply with more stringent safety and maintenance requirements (see Bundesamt für Justiz 1998; 2002). Internal documents from the German Federal Ministry of Transport and Digital Infrastructure (BMVI) revealed that the changes of the regulations explicitly aimed at impairing the activities of SAR NGOs, even though the official objectives where framed in terms of ensuring the security and well-functioning of maritime traffic (Frag den Staat 2020). The official justification provided by the BMVI was important for legal reasons, as matters related to security and well-functioning of maritime traffic fall within its competence (Frag den Staat 2020). This made it possible to introduce amendments on the basis of a unilateral BMVI-regulation thereby avoiding a lengthy and more politicised legislative process. The depoliticised rationale was echoed by BMVI officials who stated in internal deliberations that they could not propose ‘a special amendment only for boats used to observe and rescue refugees’ as they did not want to be dragged into the public debate on migration and refugees (InfoMigrants 2020c).⁹

Not only have mainstream EU governments from Italy, Germany and the Netherlands actively contributed to the restriction of the activities of SAR NGOs through technocratic means, they also supported the policy of depriving NGOs of key governance resources. Importantly, the EU has continued its policy of cooperating with authorities from countries like Libya in external border management, whilst SAR NGOs continue to find it challenging to operate in waters close to the Libyan coast (Müller and Slominski 2021). In addition, SAR NGOs often remain dependent on their own reconnaissance resources, given a lack of cooperation from the EU and key member states. This shows that over time the obstruction of SAR NGOs has not ceased but mainly changed in style, with the Italian Conte II government and other mainstream EU actors increasingly resorting to depoliticised measures to prevent SAR NGOs from carrying out their activities. Against this backdrop, representatives from SAR NGOs have stated that in certain ways they find the ‘quiet’ obstruction revolving around issues such as navigational safety, marine environment and maritime labour even more challenging than dealing with its ‘loud’ approach pursued by Italy’s Conte I government (interview 1, 2 and 5). This suggests that from an NGOs point of view, it can be more difficult to deal with depoliticised rather than politicised obstruction efforts.

5. Conclusion

While the tensions between EU values and interests is frequently debated among EU scholars (e.g. Lucarelli and Manners 2006; Smith and Youngs 2018; Riddervold 2010; Tsourdi and Costello 2021), we still know little about the strategies used by EU related actors to navigate a political environment where their political preferences pose growing challenges to the EU’s normative aspirations. As we have argued in this article, actors from the PRR and the political mainstream have increasingly converged on their preference for a restrictive approach to migration governance. While PRR parties have an incentive to capitalise on it and tend to politicise their obstruction strategies de-politicisation can be an effective strategy employed by mainstream EU actors to pursue ‘illiberal’ preferences. This speaks to previous studies arguing that a more securitised or ‘illiberal’ approach to migration governance – as it is traditionally championed by PRR parties and governments – has become effectively ‘Europeanized’ (Rivera Escartin 2020).

Although obstruction of NGOs per se has become well-accepted among EU related actors, specific obstruction measures have differed notably in tone and style depending on the actors involved. PRR actors were much more willing to engage in politicised obstruction against rival SAR NGOs, leading to a public standoff with NGOs and public polarisation and contestation. Actors of the political mainstream, in turn, have preferred a more depoliticised version of obstruction. Overall, this confirms our expectation that ideological distance between EU related actors and the norms and values promoted by NGOs matter for the approach to obstruction. During Italy’s populist right wing Conte I government, the obstruction of SAR NGOs has been marked by a considerable degree of politicisation. For Italy’s then minister of the interior Salvini from the far-right League the obstruction of SAR NGOs was part of a broader populist mobilisation, whereas it created significant normative challenges for actors of the political mainstream. On their part, SAR NGOs skillfully exploited the inconsistencies between obstruction measures and the EU’s normative power aspiration, whilst portraying themselves as the ‘true’ keeper of the EU’s normative identity. Moreover, SAR NGOs have shown a strong capacity to challenge various obstruction strategies by (counter)mobilising their own constituency and by locating alternative resources to counteract the EU’s restriction and deprivation measures.

Instead of ending the obstruction of SAR NGOs, mainstream EU related actors – including the more mainstream Conte II government in Italy – have responded to this challenge through depoliticising the conflict with NGOs, primarily relying on ‘neutral’ technical restrictions and administrative measures whilst largely avoiding the aggressive delegitimization rhetoric of PRR parties. In that way, mainstream EU governments have sought to camouflage their underlying conflict with NGOs over governance priorities, turning their criticism and restriction of SAR activities into a matter related to navigational safety, protection of the marine environment, maritime labour and – in the context of the Covid-19 pandemic – public health. Overall, the impact of obstruction on SAR NGOs has been profound, with many of their resources shifting to the contestation of obstructive measures and many of their operational activities being suspended or severely downsized.

Annex: interviews

Table

No.	Institutional Affiliation	Date
1	Member of SAR NGO	18 May 2021 via phone
2	Member of NGO	28 May 2021 via Zoom
3&4	Member of NGO alliance in the field of migration and refugees	25 March 2019 Brussels; 4 June 2021 via phone
5	Lawyer in the field of asylum and refugee law	11 June 2021 via Zoom
6	Member of SAR NGO	17 May 2021 via Zoom
7&8	Frontex official	25. March 2019, Brussels, 10. April 2019, via phone
9	Staff of Member of the German Bundestag	4. April 2019 via phone

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). We would also like to thank Chiara Loschi and Charlott Gebauer as well as the journal's anonymous reviewers for their helpful comments.

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

Notes

1 The capacity of PRR parties in government for obstruction will depend on their ‘action capacity’, which relates to the variations in political and institutional constraints they face both at the national and EU level (Falkenbach and Greer 2018).

2 The Conte II government included the populist Movimento 5 Stelle, the centre-left Democratic Party, the left wing Free and Equal party and at the end of the term also the newly founded centrist party Italia Viva under former Prime Minister Matteo Renzi.

3 Some scholars distinguish between both notions defining legal mobilisation as a legitimate use of law to advance human rights or climate mitigation, whereas lawfare refers to the illegitimate use of law by a state or corporation to supress individuals or NGOs (Handmaker 2019). For the purpose of this paper we use legal mobilisation and lawfare interchangeably (Gloppen and St. Clair 2012).

4 Legal restrictions against assets and individuals of SAR NGOS have typically been based on domestic law, which is usually embedded in a wider international (1974 SOLAS; 1979 SAR Convention; 1982 UNCLOS) and EU legal framework. A case in point here is the EU’s 2002 Facilitation package (i.e. Directive 2002/90/EC and Framework Decision 2002/946/JHA), which obliges member states to punish anyone who assists a person to irregularly enter the EU. The Facilitation Directive allows the member states to refrain from imposing sanctions if the aim is to provide humanitarian assistance (art. 1(2)). While this is also the concordant position of the European Parliament (2018), the European Commission (2017b), the Fundamental Rights Agency (FRA, 2014) and the UN High Commissioner for Refugees (UNHCR 2017), most member states (21 out of then 28) did not make use of this possibility and also sanctioned assistance based on humanitarian grounds (European Commission 2017a, 14–15).

5 Key obligations for NGOs include not to enter Libyan territorial waters, not to turn off on-board transponders, not to make telephone communications or light signals, not to obstruct SAR operations by the Libyan Coast Guard, and to allow police officers to board SAR vessels for investigation related to human trafficking (Code of Conduct 2017).

6 See Decree-Law No. 53; Law No. 77.

7 The Paris Memorandum of Understanding on Port State Control of 26 January 1982 is an administrative agreement of 27 mostly European states.

8 With the Italian ministry of transport emphasising the ‘systematic way in which rescue operations were performed with ships that were not certified for SAR activity’, migrants on NGO vessels were now no longer considered as shipwrecked persons but as ‘passengers’.

9 Similarly, in April 2019 the Dutch Ministry of Infrastructure and Water Management (Ministerie van Infrastructuur en Waterstaat) adopted stricter safety requirements for private boats. While SAR NGOs vessels had to comply with the new rule with immediate effects, all other boats have been granted a transitional period. In August 2019, a court in Hague ruled that SAR NGOs like Seawatch should also been given a transition period to comply with the new rules (Gerechtshof Den Haag 2019; Sea Watch 2019).