Human rights, domestic politics, and informal agreements: parliamentary challenges to international cooperation on migration management

ABSTRACT

Developed and developing countries are increasingly cooperating on migration management, and human rights NGOs have harshly criticised these instruments for cooperation. This article asks how and to what extent parliaments are challenging policies for international cooperation on migration management. On the one hand parliaments have traditionally been described as ‘moral tribunes’ in international relations, due to their principled support for human rights. On the other hand, parliaments are increasingly operating in political systems marked by anti-immigrant sentiment and increased support for right-wing populist parties. How do parliaments navigate between these two poles when it comes to international cooperation on migration management? Based on examples from Australia, the EU and Israel, this article shows that the use of non-legally binding instruments for cooperation limits the formal role of parliaments, but also and more importantly that there is a lack of political will to scrutinise these instruments and hold executives to account (notwithstanding attempts by some members of parliament or some political groupings to challenge policies through informal means). The lack of political contestation implies that, as far as migration management is concerned, ‘politics stop at the water's edge’.

KEYWORDS:

• Migration management
• European Union
• Israel
• Australia
• parliaments

Introduction

There is no binding system of multilateralism for regulating migration at the global level; instead, migration management is discussed in non-binding international fora (such as the Global Forum on Migration and Development) and embedded in the work of international organisations (such as the International Labour Organisation) (Betts 2011). The recently adopted United Nations (UN) Global Compact for Safe, Orderly and Regular Migration, whilst being hailed as a significant achievement, is not legally binding (see for example Newland 2019). This gap in global governance is filled by a growing number of bilateral, regional and multilateral agreements on the joint management of migration flows. Whilst migration policy has always had an international dimension (in that it regulates the movements of people across borders), more recently developed countries are increasingly seeking the cooperation of developing countries on border control, migration prevention, and the deportation of irregular migrants. The format and degree of formalisation of these arrangements varies, ranging from legally binding international agreements to informal, political cooperation, and even more covert operations (Zaiotti 2016, 2). The form of such cooperation matters because it has an impact on the types of actors involved in policy-making and implementation. This article analyses the role of parliaments in such international cooperation on migration management, for two reasons: firstly, parliaments play a crucial role in systems of democratic governance, in terms of securing the input, throughput and output legitimacy of policies (see for example Bekkers and Edwards 2007); and secondly, parliaments constrain the room for maneouvre that governments have in conducting international negotiations (Putnam 1988).

Human rights NGOs (non-governmental organisations) have harshly criticised arrangements for cooperation on migration management between developed and developing countries. Amnesty for example accuses Australia of undermining the right to seek asylum by sending asylum-seekers to Nauru, a country not equipped to provide adequate services and ensure human rights are upheld, and documents the disastrous mental health consequences for the asylum-seekers held there (Amnesty International 2016). Amnesty has also labelled the European Union-Turkey Statement a ‘blueprint for despair’ due to the desperate situation it has created for thousands of migrants trapped on the Greek islands (Amnesty International 2017). A 2018 report found that deportation of migrants from Israel to Rwanda and Uganda ‘gravely endangers the mental health, safety and life of men, women and children, and has already cost the lives of an unknown number of human beings’ (Birger, Shoham, and Bolzman 2018, 5).

Parliaments have in the past been described in the political science literature as ‘moral tribunes’ in international relations; they are purportedly moral actors, being particularly concerned with the promotion of human rights:

Members of parliament … hold political beliefs which may or may not coincide with their respective country's official position on any given issue. This allows parliamentarians a margin of flexibility that is denied to the diplomat. They tend to bring a moral dimension to international politics that transcends narrow definitions of the national interest, particularly in their principled support for democracy and human rights. (Stavridis and Jančić 2016, 113)

However in recent years anti-immigrant sentiment has been on the rise in industrialised countries, as evidenced by the election of Donald Trump despite (or because of) his hard-line rhetoric on immigration from Mexico, and the rise in support for right-wing populist parties in European countries such as Denmark, Germany and the Netherlands. Parliaments can be expected to respond to such public sentiments, as their members battle for re-election. In this context, the aim of the article is to understand how and to what extent parliaments are challenging policies for international cooperation on migration management, which are questionable from a human rights perspective. The question of impact of parliaments’ actions cannot be addressed within the scope of this article; the aim is to show what parliaments do and how, not to measure the effectiveness of these actions in achieving their objectives (cf. Auel, Rozenberg, and Tacea 2015, 284).

International cooperation on migration management sits at the nexus of two very different policy fields: foreign policy and migration policy. Whereas ‘the pursuit of security requires national unity’ (Mello and Peters 2018, 11), migration is a highly politicised policy area. Immigration and integration are issues that are high on the public and political agendas in most developed countries and subject to national legislation and intensive public and parliamentary debate. The literature claims that parliamentary involvement in foreign policy will grow as foreign policy becomes more important to daily political life (Kesgin and Kaarbo 2010, 34). The political salience of this policy area has undoubtedly increased in the last years: certainly the ‘migration crisis’ of 2015–2016 captured public attention at least in Europe in an unprecedented manner, and drew attention to international cooperation on migration management, particularly between the European Union (EU) and Turkey. This article thus contributes to the political science literature on parliaments in foreign policy by focusing on a new aspect of foreign policy, namely international cooperation on migration.

The existing literature exclusively focuses on developed countries,¹ and is dominated by studies of the role of the United States Congress and the European Parliament (EP) in foreign policy; however different dynamics are likely to be in play in traditional parliamentary systems, where the government is drawn from the parliamentary majority. The supranational governance of the EU also makes the EP a very particular case. Nevertheless, Rosén and Raube (2018, 70) argue that there is reason to extrapolate from these studies to national parliaments:

The lack of formal powers over foreign and security policy is a feature [the EP] shares with many parliaments around the world. Therefore, increasing our understanding of how it manoeuvres within those confines is of relevance to national parliaments as well.

In addition to studies on the European Parliament, there is a rich literature in the European Studies tradition on the role of national parliaments in EU affairs, i.e. a specific dimension of a country's foreign policy (e.g. Auel and Christiansen 2015). In order to build on but also expand the empirical focus of the existing literature, this article draws on examples from Australia, the EU, and Israel. These cases are selected in order to maximise diversity in the types of governance systems (national/supranational), world regions (Europe, the Middle East, Oceania), and types of borders (land/sea/mixed) covered. The focus here is on developed countries, as the drive for international cooperation on migration management comes from them (see also Bar-Tuvia 2018). Given the very different geopolitical situations of Australia, the EU and Israel, the purpose of the article is to illustrate the role of parliaments in a new dimension of foreign policy, namely migration management; the purpose is not to conduct in-depth case studies, but rather to point towards future avenues for research. The empirical analysis is based on both primary and secondary sources, including parliamentary documents, analysis by think tanks and NGOs, and media reports.

Explaining how and why parliaments challenge foreign policy

The role of parliaments in foreign policy

Traditionally, studies on foreign policy have neglected the role of parliaments, or argued that their role is inconsequential. The established wisdom was that parliaments are rubber-stamp institutions, which are not expected to challenge the content or direction of foreign policy (Kesgin and Kaarbo 2010). A number of reasons for this marginal position were advanced: in the fast-paced world of diplomacy and international relations, parliamentary procedures are too slow and inhibit parliaments from responding to international events in a timely manner; members of parliament (MPs) do not have the same privileged access to sensitive and classified information related to national security as is granted to executive actors; related to this, there is an inherent tension between the role of parliaments as bodies for public debate and deliberation on the one hand, and the needs for secrecy in diplomacy and security policy on the other; MPs lack channels of communication with international actors, thus hindering them from developing a foreign policy role; foreign policy is not usually based on legislation, rendering the legislative function of parliaments irrelevant in this policy area; MPs may be cautious about criticising executive actors’ foreign policy choices for fear of compromising the country's image of a united front; and finally parliaments tend to remain parochial and national in their focus and concerns, given that foreign policy is not a salient issue in battles for re-election (Huff 2015, 397; Kesgin and Kaarbo 2010, 21; Mello and Peters 2018, 4; Nolan 1985, 374; Raunio and Wagner 2017, 3–4).

Recently, however, a more nuanced view of parliaments in foreign policy is beginning to emerge. Empirical studies have been published documenting cases in which parliaments have challenged foreign policy decisions, for instance on the war in Iraq (Kesgin and Kaarbo 2010). Studies on the EP show that

MEPs [members of the European Parliament] have proven especially skilled in eliciting additional powers as the European Parliament (EP) has gained most of its competences (not only in the security realm) by stubbornly insisting that it is entitled to them and by making strategic use of its position in the policy process continuously to expand its own role. (Mello and Peters 2018, 9)

Although there is variation between EU member states, some national parliaments are able to exercise significant influence over EU affairs (Auel, Rozenberg, and Tacea 2015).

There are plausible reasons to expect that parliaments will play a significant role in this policy area. Authors highlight the status of parliaments as sources of legitimacy and public accountability, based on their representative function (Nolan 1985, 375). Parliaments are important forums for debate, contestation and justification of policies (Mello and Peters 2018, 12), and there is no reason necessarily why this should not also apply to questions of national interest and bilateral/multilateral diplomatic relations. Parliamentary scrutiny of policy is a crucial component of democratic governance (Rosén and Raube 2018, 69), because for a policy to be democratically legitimate it is essential that parliaments hold governments to account, both publicly and privately, over how that policy is adopted and implemented. In other words, from the point of view of democratic governance, the lack of attention to parliaments is surprising because normatively parliaments should be involved in making foreign policy.

Empirically speaking, there is reason to expect parliaments to challenge foreign policy as a result of the increasing blurring of boundaries between domestic policy and foreign policy (Weisglas and de Boer 2007, 94). International cooperation on migration management—migration management through foreign policy means—is an apt example of this. Commenting on the ‘ever-growing interdependence of national and international political agendas’, Raunio and Wagner (2017, 2) note that ‘the expanding range of political issues that are subject to international regulation should produce stronger incentives for parliamentary engagement in foreign affairs, and signals the need to study whether that engagement differs between various policy sectors’. Migration policy is an example of an issue that was previously decided only at the national level but today increasingly encompasses cooperation with other countries.

As outlined in the introduction, the literature also claims that parliaments bring a certain type of preference to the foreign policy table, namely one based on concern for democracy and human rights. Nolan (1985) for instance documents the Canadian parliament's concern for human rights policy, and the EP pushed for the abolition of the death penalty in all European countries (Manners 2002, 247). Parliaments may thus be advocating for the same policies as organisations such as Amnesty International and Human Rights Watch, and yet bring with them more weight than NGOs (Weisglas and de Boer 2007, 96).

Parliamentary means and motives for challenging foreign policy

In order to analyse the role of parliaments in international cooperation on migration management, this section develops an analytical framework, based on two distinct elements: categorising the means through which parliaments challenge foreign policy; and presenting explanations for the motives for parliaments and MPs to challenge foreign policy. So it first presents the types of actions that parliaments can take, and secondly explains the conditions under which parliaments really do challenge foreign policy (cf. Auel, Rozenberg, and Tacea 2015).

Firstly, there is a need to distinguish between the formal and informal means available to parliaments to challenge foreign policy. Parliaments exercise significant formal powers in the policy-making process. In the realm of foreign policy, these may be: holding debates; conducting inquiries; dictating the government negotiating position by issuing mandates; forcing ministers to elaborate government positions; issuing statements; having access to information not accessible to the general public; control of budgetary resources; removing government officials from office or dismissing the entire government; and ratifying international agreements (Huff 2015; Kesgin and Kaarbo 2010; Mello and Peters 2018; Nolan 1985). The national context determines the formal powers granted to parliaments, and these vary greatly, for example as to whether parliaments may veto government proposals or simply be informed about them, whether debates take place in plenary or in committees, and whether mandates are formulated in a flexible or binding manner (Auel, Rozenberg, and Tacea 2015; Huff 2015; Mello and Peters 2018). Even when parliaments have strong formal powers, these may still come up against limits; for example, the rejection of proposed military missions at a late stage in the policy-making process may not be politically feasible due to the momentum in place (Huff 2015).

However, ‘parliamentary influence is more than voting down government proposals’ (Mello and Peters 2018, 8). For this reason, scholars have also focused on the informal means available to parliaments. Several scholars develop a typology of influence based around the stages of the policy-making process (Mello and Peters 2018; Nolan 1985; Rosén and Raube 2018). Before a decision is made, parliaments can play an agenda-setting role by: identifying and defining a problem and placing it on the national agenda; framing the problem as an urgent matter for foreign policy; or changing the ranking of issues on the government's order of priorities. At the decision-making stage, MPs’ role will depend on their formal powers (see above). However, even if not formally involved in the decision-making process, parliaments may establish limits to the politically workable policy alternatives and force government ministers to elaborate on and defend the chosen course of action. During the implementation and evaluation stages, MPs may scrutinise implementation, ‘name and shame’ shortcomings, and frame the lessons learned from current and previous policies, thereby putting pressure on future decisions. MPs can also gain influence by circumventing the executive and working directly with other actors, for instance through parliamentary diplomacy (Stavridis and Jančić 2016), or by presenting arguments that are considered legitimate and valid by executive actors (Riddervold and Rosén 2016).

In order to come to a comprehensive understanding of the influence of parliaments on foreign policy, it is not sufficient to examine the actions of parliaments or MPs alone; governments may also undertake actions which either restrict or enhance parliamentary influence. Governments may try to exclude parliaments or undermine parliamentary participation, for example by announcing the decision before seeking parliamentary approval and thereby tying parliament's hands; conversely, governments may seek parliamentary involvement in order to share responsibility for and enhance the legitimacy of a decision (Mello and Peters 2018). Alternatively, government ministers may base policies on parliamentary reports and choose to present information in parliament rather than in a press conference (Nolan 1985).

Besides the means available to parliaments, we also need to look at the motives for challenging foreign policy, because this will account for variations in the extent to which parliaments make use of their formal and informal means (Auel, Rozenberg, and Tacea 2015). Huff argues that, in addition to authority (formal powers), ability and attitude explain the extent of parliamentary involvement in foreign policy (Huff 2015). Ability refers to the resources and support available to parliaments to enable them to make use of their formal powers; for example MPs’ expertise in a policy area, the existence of specialised committees dealing with the issue, and the availability of relevant information. Attitude refers to the political will to hold the government accountable for foreign policy choices, which will depend on whether foreign policy is perceived as being a responsibility of MPs or rather a domain of executive privilege, the salience of foreign policy for the electorate, and the party affiliation of individual MPs (government/opposition; Senninger 2017). Public opinion and elite preferences have also been highlighted as explanatory factors, although Auel, Rozenberg, and Tacea (2015, 297) find that these do not effect parliaments’ engagement with EU affairs.

Based on the literature review above, the empirical analysis will, for each of the three cases, outline the main arrangements used to cooperate with other countries on migration and the role of parliament (both formal and informal) in those processes, and then seek to account for these patterns.

The role of parliaments in international cooperation on migration management

Australia

Australia is a relevant case because it has been argued that its approach to externalisation has inspired other actors, such as the EU, to adopt a similar approach (Scarpello 2019). Australian international cooperation on migration management is characterised by five main arrangements: the regional resettlement agreement with Papua New Guinea (PNG), signed on 19 July 2013,² and the subsequent memorandum of understanding signed on 6 August 2013,³ which allowed for asylum-seekers arriving in Australia unlawfully to be transferred to Manus Island for processing and resettlement; the memorandum of understanding with Nauru, signed on 3 August 2013, which stipulates that asylum-seekers arriving in Australia unlawfully will be transferred to regional processing centre on Nauru⁴; the memorandum of understanding with Cambodia, signed on 26 September 2014, which provided for the permanent resettlement in Cambodia, on a voluntary basis, of asylum-seekers from Nauru who had been granted refugee status⁵; and a deal agreed with Malaysia on 25 July 2011 under which Malaysia agreed to accept 800 asylum-seekers who had arrived in Australia unlawfully in return for the resettlement of 4000 registered refugees from Malaysia to Australia (The Guardian 2011). However, of these five arrangements, only one is currently still in operation: the Australian High Court ruled that asylum-seekers cannot be transferred to Malaysia on the basis that Malaysia is not a party to the Refugee Convention (Rout 2011); the Manus Island processing facility was shut down in October 2017 after the PNG Supreme Court ruled that detention of asylum-seekers is illegal (Ghezelbash et al. 2018, 345); and the agreement with Cambodia expired in December 2018 (Foreign Affairs, Defence and Trade Legislation Committee 2018, 45). These arrangements were hardly used even when in operation: for example, analysis shows that only seven refugees were resettled from Nauru to Cambodia under the memorandum of understanding, and of those four opted to return to their country of origin (Department of Home Affairs 2018). More use has been made of the memorandum of understanding with Nauru: by August 2017, 2261 asylum-seekers had been transferred from Australia to the regional processing centre on Nauru (Gleeson 2017b).

There has been minimal parliamentary input into these agreements. The agreement with Cambodia ‘was negotiated in secrecy without consultation with parliament or civil society in Australia or Cambodia, and its terms were not made public until after the signing’ (Gleeson 2017a, 1). Indeed, Australian news media learned of the impending signature of the agreement via the Cambodian government (Whyte and Murdoch 2014). The agreement with PNG ‘came with little warning’, as a political move by the government to wrong-foot the opposition (Grewcock 2014, 72). Not having access to relevant information removes the opportunity for parliament to challenge the agreements.

Despite the use of non-legally binding international arrangements, legally binding national instruments have been passed in order to achieve this international cooperation. Most notable in this regard is the Migration Legislation Amendment (Regional Processing and Other Measures) Act passed in 2012 in response to the High Court's annulment of the deal with Malaysia (Taylor 2012a). The Migration Legislation Amendment Act allowed for the offshore processing of asylum claims, by designating another country a ‘regional processing country’, and in this way paved the way for the memoranda of understanding signed with PNG and Nauru in 2013. Parliament has therefore not challenged the government's externalisation approach, but rather passed legislation to hold these deals up.

The Senate has conducted a number of inquiries into the agreements, thereby exercising parliamentary scrutiny and naming and shaming the shortcomings of the policy (Rosén and Raube 2018). A 2014 Senate inquiry found that the death of a migrant on Manus Island was the result of the conditions in the regional processing centre there (Legal and Constitutional Affairs Committee 2014). A 2015 Senate inquiry found that conditions at the Nauru regional processing centre were inadequate and unsafe and that children should be removed (European Parliament 2016a, 5). Finally, a 2017 Senate inquiry examined allegations of abuse and self-harm of asylum-seekers on Nauru and Manus Island. The resulting report not only concluded that the issues raised in the two previous inquiries had not been addressed, but also pointed to the difficulties in exercising parliamentary scrutiny of international cooperation on migration management:

The committee has been charged with inquiring into matters which are taking place in foreign nations. The committee does not have the power to meet as a committee outside Australia, and was therefore unable to travel to the RPCs to make an assessment of the conditions, and to meet with the refugees and asylum seekers being directly affected by offshore processing … These issues were compounded by the fact that other would-be scrutineers including various UN rapporteurs, human rights organisations, journalists, and advocates, likewise face a number of structural barriers to entering either Nauru or PNG … The committee [therefore] relied heavily on the willingness of the department (in particular) to provide thorough and transparent evidence about the running of Australia's RPCs. Viewed as a whole, this assistance was not provided … The committee also noted that some of the information provided by the department could itself be viewed as a misleading representation of the RPCs. (Legal and Constitutional Affairs Committee 2017)

Nevertheless, in a dissenting report government senators dismissed the inquiry's findings: ‘This inquiry has been a politically-motivated public-relations stunt on the part of the Labor Party and the Greens Political Party designed to tarnish the success of the Coalition's strong border protection policies by inference and hearsay’ (Legal and Constitutional Affairs Committee 2017). Scrutiny activities therefore differ between government and opposition parliamentarians.

Despite such rhetoric, the case of Australia's international cooperation on migration management actually seems to be an example that ‘politics stop at the water's edge’. This term describes the situation in which government and opposition parties present a united front on foreign policy issues, so as not to undermine the country's diplomatic standing. In other words, the lack of parliamentary resistance in the case of international cooperation on migration management flows from the lack of political contestation over this policy area. Indeed, despite the scathing nature of the 2017 Senate report, the opposition spokesman for immigration stated: ‘Labor has made clear our commitment to offshore processing, regional resettlement and boat turn backs, when safe to do so, because we know it saves lives’ (Davidson 2017). The opposition therefore does not question the policy rationale as such, but rather the implementation of it. In both the 2010 and 2013 federal elections, the arrivals of asylum-seekers to Australian soil by boat were a central topic in campaigning, with the Liberal and Labour parties seeking to outdo each other in their commitment to a restrictive policy (European Parliament 2016a, 2; McDonald 2011). This is not surprising given the public's strong negative views on migrants arriving by boat (Markus and Arunachalam 2018). The 2013 transition from a Labour to a Liberal-National Coalition government did not lead to a change in policy on international cooperation on migration management (Grewcock 2014), implying convergence towards bipartisan agreement on this approach. Bipartisanship has been identified as a ‘deeply entrenched norm’ in Australian foreign policy more generally, one which restricts meaningful debate on policy choices (Trauth-Goik 2018). This does not extend to independent and Green members of Parliament, however. The Greens, for instance, opposed the agreement with Cambodia and voted against the Migration Legislation Amendment (Regional Processing and Other Measures) Act (Gleeson 2017a, 13), but could not prevent its passage in the face of agreement between the then-Labour government and main Liberal opposition (Taylor 2012b).

European Union

Over the past decades, the EU has developed an extensive toolkit of arrangements which structure its cooperation with non-EU countries on migration management (García Andrade, Martín, and Mananashvili 2015). Of these instruments, only readmission agreements and visa facilitation agreements are legally-binding international agreements (European Commission 2009, 2011). There are a number of political cooperation frameworks, such as Mobility Partnerships and the new migration ‘compacts’ signed under the Migration Partnership Framework (European Commission 2007, 2016a). Most notable in this regard is the so-called EU-Turkey Statement. Under the terms of this deal, the Turkish government accepts the readmission of all irregular migrants who cross to Greece and who either do not apply for asylum or whose asylum application is found to be unfounded or inadmissible. In return, European politicians promised eventual visa-free travel for Turkish citizens to the EU, a reinvigoration of the Turkish accession process, the resettlement of one Syrian refugee from Turkey to the EU for every Syrian returned from Turkey to Greece, and €6 billion in funding to the Refugee Facility for Turkey (European Commission 2016b; European Council 2016). Critics have pointed out that not much use has been made of the returns aspect of the agreement: by May 2018 only 1630 migrants had been returned (UNHCR 2018). Finally, the EU is a party to or has initiated a number of bilateral, regional and multilateral dialogues on migration, such as the Rabat Process, the ACP-EU migration dialogue, and the EU-Russia migration dialogue.

The EP's formal role is strongest in relation to readmission and visa facilitation agreements: in accordance with article 218 of the Treaty on the Functioning of the European Union (TFEU), the EP approves the conclusion of these agreements, although it is not involved in their negotiation. Billet (2010, 72) traces impact of pressure from the EP on the content of readmission agreements:

In the first three agreements [with Hong Kong, Macao and Sri Lanka], there was no explicit reference to specific convention and so these clauses were, according to the European Parliament, too weak. In its reports on these agreements the Parliament strongly criticised this fact … Since the agreement with Albania in 2005, all agreements negotiated mention explicitly several international conventions such as the 1951 Geneva Convention relating to the status of refugees and its 1967 Protocol, the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms or the Convention of 10 December 1984 against torture and other cruel, inhuman or degrading treatment or punishment.

Nevertheless it is simplistic to conclude that the EP will always push for the promotion of human rights in the framework of readmission agreements: for example, despite a plea by the Euro-Mediterranean Human Rights Network not to adopt the EU-Turkey readmission agreement until the rights of migrants could be guaranteed (Euro-Mediterranean Human Rights Network 2014), the EP voted in favour of the readmission agreement the following day (European Parliament 2014). The EP is therefore not a ‘moral tribune’ in all matters relating to international cooperation on migration management.

Commenting in 2012, Carrera, den Hertog, and Parkin note that ‘much of the decision-making on the external dimensions has been—and continues to be under the Lisbon Treaty—a highly inter-governmental process, driven by member states within the Council, often to the exclusion of European Parliament oversight’ (2012, 21). The EP has no formal role in political cooperation frameworks or international dialogues on migration. Nevertheless, there are numerous informal actions, instruments and tools which the EP can and does employ to try to carve out a role for itself. These are: asking questions to Commissioners (for example about the EU-Turkey statement; European Parliament 2016b); organising hearings (for example on the Migration Partnership Framework; European Parliament 2017a); monitoring how budgets are spent on external migration policy; adopting resolutions (for example on the ‘migration crisis’; European Parliament 2017b); sending parliamentary delegations to non-EU countries (for example the 2017 visit of the LIBE committee to Tunisia on cooperation in migration management; European Parliament 2017c); and organising debates (for example with UNHCR on the treatment of migrants and refugees in Libya in March 2018; European Parliament 2018).

Compounding an already weak formal position, there is reason to believe that the role of the EP in EU external migration policy is being undermined by the reactions of the other EU institutions and the member states to the ‘migration crisis’. This is noticeable in two ways, firstly in terms of the EP's budgetary authority. The search for flexibility in response to the ‘migration crisis’ led to funding instruments being set up outside of the ordinary legislative procedure (Den Hertog 2016a), thus eroding the EP's responsibility for establishing, programming, managing and implementing EU funding. The Refugee Facility for Turkey, for instance, was adopted as a European Commission decision. Trust funds, such as the EU Emergency Trust Fund for Africa launched at the Valletta summit, are set up by ‘adopting a constitutive agreement between the European Commission and one or more member states, without it being subject to European Parliament consent’ (Den Hertog, 2016b, 10). In terms of funding then, the European Commission and the member states are undermining the EP's budgetary authority, which has elicited a critical reaction from the EP itself (European Parliament 2017b).

Secondly, and an issue on which the EP has been less unequivocal, there is a trend towards an expanded use of flexible, soft law instruments, with the introduction—in response to the ‘migration crisis’—of the EU-Turkey ‘statement’, the Migration Partnership Framework, and the ‘Joint Way Forward’ with Afghanistan. The legal status of such instruments is unclear, as evidenced by the 2017 ruling of the General Court of the European Union on the EU-Turkey statement (General Court of the European Union 2017). With regards to Turkey, the use of a ‘statement’ has been criticised for being a deliberate mechanism to circumvent parliamentary scrutiny and the involvement of the EP under article 218 TFEU, both by commentators (Carrera, den Hertog, and Stefan 2017) and by the EP itself which ‘deeply regrets that in the EU migration policy framework and refugee movements response, the EU and its Member States have opted for the conclusion of agreements with third countries, which avoid the parliamentary scrutiny attached to the Community method’ (European Parliament 2017b).

Nevertheless, it is misleading to portray the EP as a passive actor which is wronged by the European Commission and member states trying to exclude it from the policy-making process. This exclusion also partly represents an active choice by the EP itself: the failure of the EP to bring judicial proceedings against the EU-Turkey Statement, even though it has made use of judicial proceedings in the past in order to defend its prerogatives, is telling (Gatti 2018). Consecutive Eurobarometer reports show that immigration is one of the, if not the main concern of European electorates (e.g. European Commission 2018, 12). The EP may therefore be tacitly indicating its support for the EU response to the ‘migration crisis’ in order to appease electorates. In other words, this is an example of a lack of political will to hold the European Commission and member states to account (Huff 2015).

Israel

The Israeli government has concluded highly secretive bilateral deals to return African migrants to third countries in Africa. Starting in 2003, the government has pursued a policy of ‘voluntary transfer’ of irregular migrants, although critics question how voluntary such a procedure is in cases ‘in which one parent has been deported, in the hope that the other parent and children will follow voluntarily’ (Kemp 2004, 283). Particularly the pressure on migrants to accept ‘voluntary’ transfer to third countries (not the country of origin) is very similar to the process by which the Australian government tried to persuade asylum-seekers on Nauru to accept resettlement to Cambodia (see above). Starting in 2014, Israel offered Eritrean and Sudanese migrants ‘voluntary’ deportation to two African countries; Israeli media reported that these were Rwanda and Uganda, whose governments had agreed to accept African migrants and asylum-seekers from Israel in return for increased aid. The migrants would have their flights paid and receive a lump sum payment of USD 3500 (Ynet 2015). In 2017 the Israeli government announced its intention to deport migrants forcibly, if they did not apply for asylum before 1 January 2018 or if their asylum applications were rejected (Bar-Tuvia 2018). However, the current status of these deals is unclear: in 2018 the Israeli prime minister reported that the deal with Rwanda had collapsed, but argued that the deal with Uganda is still in place, something which Uganda denies (Bar-Tuvia 2018). Due to the secretive nature of these deals, no accurate figures exist on how many migrants have been deported under their terms. Journalists have estimated that 1400 migrants were deported from Israel to Rwanda in the years 2014–2017 (Green 2017), and UNHCR estimates that in the same period 4000 Eritrean and Sudanese migrants were deported from Israel (UNHCR 2017). In April 2018, the Israeli government reached a deal with UNHCR under which some African migrants would be resettled in Western countries and some would remain in Israel; however, Prime Minister Benjamin Netanyahu promptly cancelled the deal the following day after facing domestic political pressure (Lubell 2018).

The deals reached between Israel and Rwanda/Uganda were highly secretive and opaque: ‘The process appears designed not just to discard unwanted refugees, but to shield the Israeli, Rwandan and Ugandan governments from any political or legal accountability’ (Green 2017). The stipulations of the deals were hidden from the Knesset, and it remains unclear whether any agreements were ever signed on paper (Rozen 2015). Indeed, both the Rwandan and Ugandan governments for a long time even denied that they were the African countries referred to (Ngabonziza 2018). The fact that Members of the Knesset (MKs) were not informed about the deal reached with UNHCR in April 2018 implies that there is a pattern whereby the Israeli government actively seeks to circumvent the Knesset and avoid scrutiny of these arrangements (Levinson and Landau 2018).

Yet, just as in Australia, the Knesset has passed legislation to hold these deals up: in December 2017, the Knesset passed an amendment to the national ‘anti-infiltration law’,⁶ to extend the detention of migrants on the Holot facility by three months (Israel Hayom 2017). The government linked the operation of Holot to the deportation of migrants. Although there was heated debate in the Knesset and disagreement within the opposition Zionist Union, the amendment passed by 71 votes to 41 votes. This amendment was passed in response to a court ruling that migrants could not be detained for more than 60 days or deported against their will (Altman, Cesana, and Saban 2017). In February 2018 the Knesset rejected a proposal by one of its members, Michal Rozin, to establish an inquiry into the policy of deporting Sudanese and Eritrean migrants (Eisenbud 2018).

The support from the Knesset for the legislative amendment and particularly the role of the leader of the opposition in pushing for MKs to vote for the amendment implies that, as with Australia, in Israel political will may be an important factor in accounting for the role of the Knesset. In 2017 the opposition Zionist Union dramatically changed its position to be in favour of expulsion of ‘infiltrators’, having previously overwhelmingly opposed this policy. The Labour Party chairman, Avi Gabbay, hinted at domestic political considerations as a reason for the policy shift: ‘We would pay a heavy price for opposing the bill’ (Levinson and Lis 2017). Nationalists within the ruling coalition were also heavily critical of the deal reached by the Israeli government with UNHCR in April 2018 (Heller 2018). There thus does not seem to be much separating the governing and opposition parties on this topic. As with Australia, the lack of parliamentary influence flows from the lack of political contestation over this policy area. And as with Australia, parliaments are aligning with public opinion: in Israel, two third of the public support the deportation of migrants to African countries (Harkov 2018).

Nevertheless, some MKs have challenged the Israeli policy, for instance by ‘naming and shaming’ its functioning and effects: In February 2018, two MKs—Mossi Raz and Michal Rozin, both of the Meretz social democratic party—travelled to Rwanda to investigate the fates of the African migrants deported under the Israeli deals, accompanied by an Israeli news magazine. However, Rwandan government officials refused to meet with the MKs (Ziv 2018). Also in February 2018, three MKs from opposition parties (Michal Rozin of Meretz, Dov Khenin of the Joint List, and Eli Alaluf of Kulanu) organised a conference at the Knesset in opposition to government policy.

Conclusion

This article has examined the roles of the parliaments in Australia, the EU, and Israel in international cooperation on migration management. It found that in all the cases the use of non-legally binding arrangements limits the formal role of parliaments: Australia's memoranda of understanding, Israel's secretive deals of which the signatories were not even officially confirmed, and the EU's non-standard formats for cooperation such as the EU-Turkey ‘Statement’ and the ‘Joint Way Forward’ with Afghanistan. Nevertheless, some members of parliament have made use of informal means to challenge their government's international cooperation on migration management, for example naming and shaming (Israeli MKs), conducting inquiries (the Australian Senate), and issuing resolutions (the EP). The focus here has been on how and why parliaments challenge these deals; future research should therefore investigate the impact of such challenges. For example, the ‘naming and shaming’ efforts of Israeli MKs were curtailed by the refusal by Rwandan officials to meet with them (see above).

Overall, the article challenges the notion of parliaments as ‘moral tribunes’, at least in the realm of international cooperation on migration, because it found, in all three cases, a lack of political will to scrutinise and hold the executive to account. In Australia and Israel, there is little political contestation over the need for cooperation with other countries on migration, leading to ‘politics stopping at the water's edge’. In the EU, the EP has not sought to defend its prerogatives in relation to the EU-Turkey statement, suggesting that MEPs may want to wash their hands of responsibility for this policy. In all cases, parliaments’ actions (or rather inactions) are aligning with public opinion on migration management; future (qualitative) research should investigate the relationship between parliamentarians’ preferences and public opinion in order to establish causality.

This article has focused on developed countries because the drive to externalise comes from them: they push migration management and border control further away from their own territories by placing this responsibility with partner countries. The need to incentivize such cooperation is evidence of the asymmetrical relationship and interests between developed and developing countries on this issue. However, the research process uncovered evidence of actors in developing countries responding to and attempting to shape international cooperation on migration management (for example the Manus Island processing facility was shut down on the basis of a PNG Supreme Court ruling, in a case brought by the leader of the opposition of PNG; Ghezelbash et al. 2018). Future research should therefore account for the role of parliaments in all of the countries that are party to an international arrangement on migration management. It is even worth considering the role of parliaments of countries which are not party to the cooperation: in 2018, eighteen Jewish members of the US Congress sent a letter to the Israeli prime minister to urge him to reconsider his suspension of the deal with UNHCR (Yaron 2018). If such interventions are found to have been influential, this would be a valuable contribution to the broader literature on parliamentary diplomacy (see for example Stavridis and Jančić 2016).

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Natasja Reslow holds a Ph.D. in political science from Maastricht University. Her main research expertise is in the morphology and consequences of EU external migration policy. The results of her research have been published in the Journal of Common Market Studies, the International Spectator, and International Migration. Currently Natasja works as a project manager at Maastricht University.

ORCID

Natasja Reslow http://orcid.org/0000-0003-4382-6809

Notes

1 See, for example, the 2018 special issue of the British Journal of Politics and International Relations.

2 https://dfat.gov.au/geo/papua-new-guinea/Pages/regional-resettlement-arrangement-between-australia-and-papua-new-guinea.aspx.

3 https://dfat.gov.au/geo/papua-new-guinea/pages/memorandum-of-understanding-between-the-government-of-the-independent-state-of-papua-new-guinea-and-the-government-of-austr.aspx.

4 http://dfat.gov.au/geo/nauru/Documents/nauru-mou-20130803.pdf.

5 https://dfat.gov.au/international-relations/themes/people-smuggling-trafficking/Documents/cambodia-australia-mou-and-operational-guidelines.pdf.

6 The Israeli government refers to irregular immigrants as ‘infiltrators’.