Brief description:

Ever since the 2015 migration ‘crisis’, there have been relatively high numbers of arrivals of irregular migrants at the EU’s external borders. The causes for such an influx can sometimes be obvious, e.g. those trying to find shelter following Russia’s invasion of Ukraine in February 2022. What is less well known is that, according to the EU and its Member States, increased arrivals can also be (partly) caused by the deliberate actions of their neighbours. In recent years, they have accused several third countries – including Belarus; Turkey; Morocco; Russia; and Libya – of engaging in a practice commonly referred to as ‘instrumentalised’ migration. This is a practice that can take many forms, and at present it does not have one commonly accepted definition – let alone a legally binding one. While this type of “use of human beings … for political purposes” is globally speaking nothing new, European interest in the phenomenon of 'instrumentalised' migration has only recently grown, with the EU and its Member States claiming to increasingly be the recipient of these kinds of practices. Despite the contemporary saliency of migration related issues in the EU, and increased political scientific and media attention for its claimed ‘instrumentalisation’, from a legal standpoint this phenomenon remains underexplored. This lack of (legal) academic attention has caused legal ambiguity on several levels. Firstly, even though ‘instrumentalisation’ practices are reportedly used by actors around the world, it remains wholly unclear how these should be legally understood and conceptualised under contemporary public international law (PIL). It can for example be questioned to what extent terms commonly ascribed to the phenomenon, i.e. it amounting to a kind of ‘coercion’; a (hybrid) ‘threats/aggression’; or even a type of ‘(hybrid) warfare’, are legally appropriate. Given this lack of an accurate legal understanding, the phenomenon’s potential (il)legality under contemporary PIL also remains ambiguous. Secondly, and again in part due to this unclarity, it can be questioned whether recent EU and/or Member States’ claims of being the recipient of ‘instrumentalised’ migration are accurate. After all, as long as it remains unclear how a phenomenon is to be understood, it is impossible to determine when it is, or is not, being used. Moreover, – even if the European claims could be considered as appropriate – from the perspective of EU migration/asylum law there exists legal obscurity about the correct division of competences between the EU and its Member States when it comes to managing scenarios of ‘instrumentalised’ migration, and the reach of their respective powers in that context. Finally, it remains largely ambiguous how migration ‘instrumentalisation’, as well as (and perhaps more importantly) measures adopted by recipient entities in response, affects the human rights of the migrants supposedly being ‘instrumentalised’. It is the intention of this research project to fill the described lacuna in the existing legal literature.

Methodology:

As a starting point, this research project takes a doctrinal legal approach, using desk research as its main research method. In order to eventually answer its research question(s), a thorough legal analysis of the most relevant sources of both PIL and EU law is conducted. The theoretical parts of the study's legal analysis are supplemented by reference to additional secondary sources, including policy documents of e.g. UNHCR, NATO, or EU institutions; reports issued by international organisations and NGOs; as well as relevant scholarly writings, including from other academic disciplines such as the political sciences. On that note, while the study is focussed on analysing of the phenomenon of migration ‘instrumentalisation’ from a legal perspective, it clearly has interdisciplinary elements. Before starting the study’s legal analysis, an overview of the different understandings of ‘instrumentalised’ migration that have been developed up to this point in the political sciences will be provided. Where this happens, the study will not (yet) take a position on these strands of literature. That only happens nearer the end, where the study’s legal findings are juxtaposed with the discussed political scientific theories and understandings surrounding migration ‘instrumentalisation’. The doctrinal/theoretical findings of this study are further enhanced with empirical evidence on the operationalisation of ‘instrumentalisation’ practices, gathered through fifteen interviews with relevant stakeholders—including policy makers; European and national officials; and representatives of international organisations, and of relevant parties from civil society. More precisely, those who have occupied themselves with the alleged use of ‘instrumentalisation’ practices by Belarus, Morocco, and Turkey. These being the three scenarios of reported migration ‘instrumentalisation’ against the EU and its Member States that this research project uses as its case studies. While this study does not claim that the conducted interviews exhaustively cover all aspects and/or types of the phenomenon of migration ‘instrumentalisation’, nor that they provide a complete overview of the situation ‘on the ground’ at the EU’s external borders with respectively Belarus; Morocco; and Turkey, the empirical evidence collected does help reveal how this phenomenon is dealt with in the ‘real-world’, and—importantly for the study’s legal aspects—whether, on both the ‘instrumentaliser’ and the ‘other’ side any consideration of affected international and/or EU human rights obligations occurs in practice.

Keywords: fundamental rights, Public International Law, EU migration and asylum law, Instrumentalised migration, EU institutional law

Home University:

Maastricht University

Faculty:

Faculty of Law, Department of International and European Law

Supervisor: Andrea Ott

Added to catalogue on: 19-04-2023

Additional information:

The second supervisor of this research project is: Evangelia (Lilian) Tsourdi