“Team Europe is back in Tunis” – a study on ECHR applicability ratione personae to EU support for Tunisian border and migration management

Abstract: After the well-known spike in migrants crossing the Mediterranean in 2015- 2016, the EU has intensified its cooperation with third states on the field of migration. Although there are numerous examples where such policies have been criticised as incompatible with the principle of non-refoulement and for not respecting migrants’ human rights, there are no CJEU rulings concerning their compliance with EU law. This is partly explained by a trend of informality in EU external actions on the field of migration. This informality is manifested through cooperation arrangements with third states being established in soft law instruments and in disregard of EU procedures for adopting binding international agreements. For various reasons, such practices keeps arrangements out of reach for CJEU scrutiny. 2023 has marked a new spike in crossings over the Mediterranean, this time with a majority of departures from Tunisia. In response to this, the European Commission decided by means of an Action Plan (the Action Plan) in June 2023 to increase EU financial and technical support for Tunisian border and migration management. In July 2023, the Commission signed a Memorandum of Understanding with Tunisia (the MoU) including the same measures. The EU decision to intensify cooperation with Tunisia on the field of migration was taken at a time when numerous reports had brought attention to a deteriorating human rights situation for migrants present in Tunisia. More specifically, xenophobic rhetoric from the country’s president had provoked abuses by Tunisian authorities directed towards sub-Saharan nationals. Due to this, the commissioner for human rights of the European Council, amongst others, have raised warnings about human rights impact of the EU cooperation with Tunisia on border and migration management. The EU is not a party to the ECHR, although accession to the Convention is foreseen in Article 6(2) of the TEU. This means that applicability of the ECHR and its additional protocols ratione personae to measures by the EU depend on the attributability of such measures to EU member states. In this essay, I examine the question of ECHR applicability ratione personae to the EU measure of providing financial and technical support for Tunisian border and migration management. The analysis is based on the two Commission acts mentioned above, namely the Action Plan and the MoU. I employ a legal dogmatic method, applying international public law to the examined EU acts. The content of international public law on the matter of state attributability of international organisations’ measures to their member states is determined by means of Article 1 of the ECHR as well as Article 61 of ARIO. Article 1 of the ECHR defines the applicability ratione personae of the Convention and Article 61 of ARIO concerns the circumvention of international obligations of a state member of an international organization. I use ECtHR practice and doctrine as secondary means for the determination of law. In this essay, I reach the following conclusions. According to Article 61 of ARIO, the ECHR and its additional protocols is most likely not applicable ratione personae to the EU measure of providing financial and technical support for Tunisian border management. This is because EU member states have not caused the EU to adopt the Action Plan or the MoU. According to ECtHR practice, states may incur responsibility for measures of international organisation without state involvement in adoption procedures of said measures. This situation arises when states fail to ensure compliance with ECHR obligations within the framework of an international organisation. In view of manifest deficiencies in the protection of ECHR rights surrounding the Action Plan and the MoU, I argue that these acts should be attributable to EU member states based on such principles. In the last chapter of this essay, I make some concluding remarks concerning ECHR applicability to EU soft law instruments on the field of migration. The findings of this essay illustrate why EU accession to the Convention should be made a priority. In the meantime, I argue that ECHR applicability ratione personae could and should be established to informal EU measures due to the role of the ECHR as a “’constitutional instrument of European public order’ in the field of human rights”.