The rule of law in the external dimension of EU migration and asylum policy; Leonhard den Hertog
Pages: 306 pages
ISBN (softcover) : 9789462401815
This study deals with a constitutional principle of the EU: the rule of law. The EU Treaties leave no doubt that the rule of law is a ‘universal value’ on which the ‘Union is founded’. This value is not bound to remain internal; EU external relations should also be guided by the principle. However, a lack of conceptual and legal clarity on the principle makes it uncertain how it guides external relations.
The basic question this study poses is therefore what the role of the rule of law is in EU external relations.
More specifically, this study analyses this role by focussing on the external dimension of EU migration and asylum policy. Over the years the EU has developed this external dimension of an originally internal policy field. Measures such as externalising border control, readmission of migrants to third states or mobility opportunities for third country nationals have been promoted. This relatively new area of EU external relations is characterised by a high degree of operational and human rights sensitive activities. For example, Frontex, the EU border agency, operates beyond Europe`s borders, sometimes on the basis of undisclosed working arrangements with third States.
This peculiar nature of the external dimension of migration and asylum policy presents challenges to rule of law adherence and to the discourse of the EU as a norm exporter. What can the role of values be in influencing policy-making in this particular policy area, often described as ‘securitised’? Informed by a sound analysis of the conceptual debate on the rule of law, the study looks at the legal requirements of that principle in the field of migration and asylum policy. It applies those requirements to the actions in this field to assess their rule of law adherence. Specifically, three EU organisations (Commission Directorate-General Home Affairs, Frontex and the European External Action Service) are studied to uncover why the notions of and the adherence to the rule of law differ across their outputs.
This study applies organisation theory combined with legal analysis. It thereby aims to add to the dominant existing theoretical frameworks in this field, namely the ‘securitisation’, ‘Normative Power Europe’ and ‘liberal constraint’ literature. It is argued that the rule of law does indeed influence this field and that demands from the organisations’ environments and their organisational cultures determine how and why the rule of law is reflected in their organisational outputs. Moreover, the findings indicate that talk on the rule of law and action against irregular migration are decoupled by the selected organisations and that they reinterpret the rule of law to make it fit better with existing organisational outputs. The methods this study uses are semi-structured interviews, content analysis and doctrinal legal analysis.