Team Europe’s Deal

On 16 July 2023, the European Commissioner for Neighbourhood and Enlargement, Olivér Várhelyi, and Tunisia’s Secretary of State of the Minister of Foreign Affairs, Migration and Tunisians Abroad, Mounir Ben Rjiba, signed a memorandum of understanding (MOU) on a ‘strategic and global partnership’ between the European Union (EU) and Tunisia. The signing followed a meeting in Tunisia between Tunisian President Kais Saied and ‘Team Europe’ (European Commission President Ursula von der Leyen, Italian Prime Minister Giorgia Meloni, and Dutch Prime Minister Mark Rutte). The agreement was preceded by a high-level joint declaration that concluded Team Europe’s first visit to Tunis on 11 June 2023.

The MOU builds on existing cooperation between the EU and Tunisia, including on migration, and was concluded in the context of increasing numbers of people on the move travelling from Tunisia to Europe. It is also part of the growing trend to externalise migration control: in recent years, the EU and its Member States have concluded various migration control agreements with neighbouring countries, including the 2016 EU-Turkey Statement and the 2017 Malta Declaration that endorses the MOU between Italy and Libya. Like its predecessors, the MOU with Tunisia has attracted significant criticism (see for example here, here and here). Against this background, this blog post first clarifies what was agreed before explaining why the agreement is problematic both in terms of substance (what was agreed) and form (how it was agreed).

What was agreed?

The deal is built on five pillars: macro-economic stability, economy and trade, the green transition, people-to-people contacts, and migration. Each pillar contains various investment and cooperation projects, many of which will be funded by the EU. While the MOU remains vague on financial figures, it is expected to involve considerable amounts, including €150 million in budgetary support for the Tunisian government and €105 million in training and technical support for Tunisia’s border management. The EU also committed to providing Tunisia with €900 million macro-financial assistance under the condition that it agrees to an IMF loan agreement. This financial aid is much needed in light of Tunisia’s struggling economy.

The MOU’s migration paragraphs highlight the parties’ intention to develop a holistic approach to address the root causes of irregular migration, including by promoting sustainable development in disadvantaged areas. A common priority is the fight against irregular migration to save lives and the fight against smugglers and traffickers. This echoes the language of the EU-Turkey Statement and Malta Declaration. The MOU further emphasises that Tunisia is not a country of destination for irregular migrants and only manages its own borders, which reflects Tunisia’s unwillingness to receive third-country nationals returned by Europe and be perceived as managing Europe’s borders. Indeed, the MOU covers the return of Tunisian irregular migrants from the EU to Tunisia and the return of (other) irregular migrants already in Tunisia to their country of origin, but does not include the return of other nationalities from the EU to Tunisia. On a positive note, Tunisia and the EU agree to further improve the coordination of search and rescue operations at sea, to increase the socio-economic reintegration of Tunisian returnees, and to promote legal pathways. The EU thus endeavours to facilitate the granting of visas by reducing delays, costs and administrative procedures, and both parties agree to work towards implementing a Talent Partnership to promote legal migration.

Why is the ‘cash for migrant’ deal problematic?

The EU-Tunisia deal is problematic for multiple reasons. First, it is unlikely to achieve the stated aim of saving lives and fighting against human smuggling and trafficking. Rather, if Tunisia will indeed clamp down on irregular migration, the agreement risks driving people on the move onto even more dangerous routes. As noted by Van Liempt, tighter border controls increase people on the move’s dependence on smugglers and thus help support the very business they seek to combat, and it is likely that people on the move will travel along other routes. Indeed, more people on the move travel through Tunisia because Italy and the EU have dramatically intensified their support for Libyan border management since 2017.

The agreement has also received criticism for providing funding to an authoritarian ruler in exchange for migration control. Indeed, in July 2021, President Kais Saied took executive control of the country, and has since then granted himself unchecked powers to govern and legislate in a rolling power grab. The deal has thus been criticised for financing a dictator. In addition to ethical objections, there is also a risk that EU funding, rather than addressing the root causes of migration as it aims to do, in fact, contributes to more migration. For instance, in Sudan, the EU has been accused of funding the Rapid Support Forces (RSF) for migration control purposes, yet the RSF now fight in the armed conflict that broke out in April 2023 and which has displaced millions (see here, here and here).

Like the migration deals with Libya and Turkey, the MOU refers to respect for human rights, dignity and international law. However, as noted by the Council of Europe Commissioner for Human Rights, the fact that the agreement with Tunisia only includes very general language on human rights is concerning: there is no concrete indication regarding safeguards to protect the human rights of people on the move, nor does the MOU envisage any human rights monitoring mechanism. Yet, the dire situation of people on the move in Libya shows that general references to human rights in migration agreements do not suffice to ensure that their implementation is human rights compliant. Likewise, European funding does not include support for people on the move contained in Tunisia as a result of the agreement. In this regard, the Tunisian deal differs from the EU-Turkey Statement, which included €6 billion in support for Syrian refugees through the Facility for Refugees in Turkey.

In February 2023, President Kais Saied held a speech in which he said there had been a conspiracy to change Tunisia’s racial makeup. The speech was followed by a crackdown on sub-Saharan people on the move. After violence erupted in the Tunisian port city of Sfax on 3 July, Tunisian authorities started deporting people on the move to the border with Libya. Since then, hundreds of people on the move have reportedly been forced to walk into the desert without water or food, and dozens have died. This highlights how controversial it is for the EU to sign an agreement with Tunisia, as it can be seen to legitimise and strengthen such practices: it suggests that the EU is so desperate to prevent arrivals that it is willing to pay any price, including migrant lives.

Who can be held accountable and how?

The nature of the agreement and the process leading to its conclusion are also problematic, and likewise symptomatic of broader trends in the migration field. This concerns the lack of clarity that surrounds Team Europe, notably as regards the role of the Dutch and Italian prime ministers. While Rutte and Meloni have a clear political interest in being seen as the architects of this deal, it remains unclear what their effective contribution was. Formally speaking, the MOU is an agreement between the EU, represented by the European Commission, and Tunisia, while the funding comes from the EU budget, notwithstanding Rutte’s and Meloni’s role in creating it. In terms of accountability, this lack of clarity is problematic, as it implies that national politicians can be involved in bringing about a deal for which they cannot be held accountable.

Arguably more concerning is the informal nature of the agreement. Indeed, the Treaty on the Functioning of the EU(TFEU) specifies the procedure that must be followed when negotiating and concluding agreements between the EU and third countries. This requires, notably, the Council to obtain the consent of the European Parliament (Article 218(6)(a)(v) TFEU). Yet the MOU was signed by the Commission (rather than the Council) without having consulted the Parliament. It can thus be seen to sideline the Parliament and Council and circumvent the EU Treaties and their safeguards. Indeed, while Article 21 of the Treaty on European Union requires the EU’s partnerships with third countries to be guided by democracy, the rule of law, and human rights, this can hardly be said to be the case for the MOU with Tunisia.

The political, non-binding nature of the MOU and the role of Team Europe in its creation is also problematic in terms of judicial review by the Court of Justice of the EU (CJEU), as provided for in Article 263 TFEU. Indeed, the CJEU’s (much-criticised) finding that it could not review the legality of the EU-Turkey Statement because it had not been concluded by the EU does not bode well for holding the EU accountable for any human rights violations that may arise as a result of the EU-Tunisia deal. This fits within the broader trend of informalising the EU’s external action in the field of migration.

Conclusion

The MOU that was agreed on 16 July 2023 builds on earlier cooperation between the EU and Tunisia, and fits within the broader trend of externalising migration control through agreements with neighbouring countries. The ‘cash for migrant’ agreement illustrates how the EU seeks to address the migration challenge by financing neighbouring countries in order to prevent unwanted arrivals. Like earlier deals with Turkey, Libya and Sudan, the agreement with Tunisia risks violating human rights and increasing migration rather than protecting the rights of people on the move and addressing the root causes of migration. It also creates significant obstacles in terms of accountability and risks making the EU subject to blackmail by an authoritarian leader. Yet European Commission President Ursula von der Leyen called the EU-Tunisia migration deal a blueprint for similar partnerships in the future. While it is too early to assess how the MOU will be implemented, in light of the foregoing, it is worrying that the EU considers it desirable to conclude similar agreements with other countries.