The EU’s Neo-Refoulement Instruments and Rule of Law Problems: The EU Accession to the ECHR as a Solution?

Abstract

The implicit aim of the EU’s migration policy seems to be focused around neo-refoulement: the strategy of preventing asylum obligations by ensuring that migrants are returned before they are in EU Member State territory or under the effective control of the EU. Three instruments are identified as exemplary for the EU approach: Frontex, soft law instruments, and CSDP-based migration control missions. Through the use of these instruments, the EU and its Member States hope to avoid human rights obligations and responsibility for human rights violations vis a vis migrants. This challenges the requirements of the rule of law, for which this study uses the following working definition: ensuring systemic accountability for incongruences between human rights law and acts of government through ensuring access to a court. It is established that for each of the three neo-refoulement instruments the rule-of-law-principles of legality and effective judicial protection are undermined due to the fact that there is no proper accountability mechanism in place. As the EU might soon accede to the ECHR, the ECtHR might be able to ensure that the EU will be held accountable. After examining the new draft accession agreement between the EU and the Council of Europe, it is found that it will remain virtually impossible to hold the EU accountable for human rights violations committed against migrants in the context of CSDP-based migration control missions and soft law agreements, yet it might result in accountability for transgressions committed by Frontex officers that are under the direct control of the EU