The European Union has been accused of betraying its own values by rewarding the “abysmal repression” of the Egyptian regime (Francavilla, 2024, para. 8). On 17 March 2024, the EU and Egypt signed a Joint Declaration establishing a “strategic and comprehensive partnership” whereby the EU commits to the disbursement of €7.4 billion in financial assistance, aiming to enhance cooperation with Egypt in the areas of political relations, macroeconomic stability, investment, trade, and development, in exchange for Egypt’s “full dedication to control illegal immigration” (European Commission, 2024c; Directorate-General for Neighbourhood and Enlargement Negotiations, 2024c, para. 6). The Strategic and Comprehensive Partnership (hereinafter “the Partnership”) is not presented as such by the EU, but has drawn harsh criticism from members of the European Parliament and human rights organizations, for providing billions of euros to outsource migration control to a country that repeatedly perpetrates “abuses against and forced refoulement of refugees and asylum seekers” in contravention of several international agreements (Pineda, 2024; Picierno et al., 2024, para. 2). The Partnership thereby enables the Egyptian regime to continue its violations of human rights without consequences (Amnesty International, 2024a).

Migration has been ascribed a “top political priority” by the EU (European Council, 2003, para. 9). At the height of the ‘migrant crisis’ in 2015 and 2016, EU Member States experienced a record influx of migrants, receiving more than 1.2 million asylum applications in each respective year (Eurostat, 2017). Similarly, the European Border and Coast Guard Agency (Frontex) reported more than 1.8 million illegal border crossings in 2015, and more than half a million in 2016 (Frontex, 2017). The outflow of refugees occurred primarily because of the Syrian civil war, a corollary of the Arab Spring, resulting in the displacement of around 11 million Syrians as of 2016, of whom 4.8 million fled to neighboring countries, including Turkey, Egypt, Jordan, Lebanon, and Iraq (Peters et al., 2023). These developments, and the subsequent unilateral measures taken by Member States in response, risked a near total collapse of the Common European Asylum System (CEAS) and the Schengen area (Maiani, 2018). Consequently, the European Council (2015) aspired to develop a strategy aimed at curbing “the unprecedented migratory flows” facing Europe, maintaining that regaining control over the external border is imperative (para. 1). Additionally, within the EU and Member States, the perception of migrants and refugees as a security threat arose, namely as a threat to cultural identity, public order, and internal stability, resulting in its securitization (Abderrahim, 2018; Huysmans, 2000). Domestic and EU-level policies were deemed insufficient in deterring the purported security threat of migration (Karamanidou, 2015). Therefore, policies and agreements that outsource migration control to third countries, termed externalization, were realized—their objectives being to preclude migrants and refugees from entering European soil by securing the external border (Frelick et al., 2016).

The Partnership with Egypt is one such agreement that aims to externalize migration control and management. Besides the fact that externalization measures often entail human rights violations (Pijnenburg, 2024; see also Lighthouse Report, 2024), concerns have been raised about the apparent tendency within the external dimension of EU migration policy to resort to soft law instruments that are not legally binding, as opposed to formal international treaties that impose legal obligations, since informal instruments operate outside the institutional principles and decision-making procedures codified in the Lisbon Treaty concerning cooperation with third countries (Carrera et al., 2019; Fernando-Gonzalo, 2023). The informalization of migration cooperation has been alleged to undermine parliamentary and judicial scrutiny (Strik, 2023).

Therefore, the objective of the present research is, first, to provide a delineation of the political context in which the Partnership was concluded, namely the EU’s securitization of migration and the externalization of its management to third countries. Second, to ascertain the legal nature of the Partnership, the procedural rules followed for its adoption, and whether the principles of institutional balance and sincere cooperation were impinged upon. Third, to assess the human rights concerns regarding the conclusion of the Partnership with Egypt, and subsequently establish (in)compatibility with international and EU law. Hence, the research question is as follows: What are the legal implications of the EU’s securitization of migration and the externalization of its management to Egypt through the Partnership?

To provide a coherent answer to the research question, this research will first draw on the insights on the Paris School of security studies to understand the process of securitization in relation to the external dimension of EU migration policy, after which a socio-legal case study will be conducted to analyze the legal framework of the Partnership, whereafter the implications for human rights.

Presently, there is no research that has systematically investigated the Partnership as an instrument of extra-treaty cooperation on migration control that materialized as a result of the securitization of migration and the externalization of its management. It is imperative to assess what role the various EU institutions (the Commission, Parliament, Court, European Council, and Council of the EU) have played in the negotiation and conclusion of an agreement that will have serious implications for migrants and their rights. Therefore, it contributes to the discussion that aims to establish whether we are witnessing a trend of “de-constitutionalizing” of EU migration policy (Carrera et al., 2019, p. 11).

This research operates at the intersection of politics and law. It seeks to make salient that the political and legal aspects of EU migration policy are inextricably linked. The politics of securitization has led to the adoption of soft law instruments that entail externalization, which can possibly be declared unconstitutional under EU law and incompatible with international human rights law.

The structure of the research is as follows: First, the theoretical framework and the pertinent literature, concerning the securitization of migration and the externalization of its management through soft-law instruments, will be delineated. Second, the procedure followed for the adoption of the Partnership and the roles played by the EU institutions will be outlined. Third, the implications for human rights the Partnership entails will be described in depth.

Theoretical Framework and Literature Review

Securitization theory as articulated by the Copenhagen and Paris Schools of Security Studies will be outlined below, whereafter the theory will be connected to the pertinent literature, explicating the securitization of migration and the externalization of its management through soft law instruments.

Securitization Theory

The securitization framework as articulated by the Copenhagen School of Security Studies aligns with the constructivist approach in international relations (Stępka, 2022). The Copenhagen School posits that securitization occurs when a securitizing actor asserts that an issue poses an existential threat in reference to an object in need of protection, thereby removing this issue from the realm of normal politics (Buzan et al., 1998). The process of securitization is a speech act, meaning that by framing a phenomenon as a security issue, it is dramatized and designated as “an issue of supreme priority,” permitting a securitizing actor to claim justification for treating it by extraordinary measures (Buzan et al., 1998, p. 26). However, a speech act merely constitutes a “securitizing move”—successful securitization of an issue occurs exclusively if and when a target audience recognizes and approves it as such, meaning its success is not determined by the securitizing actor (Buzan et al., 1998, p. 25). Additionally, the existential threat should not be conceptualized objectively, but rather securitization is to be understood as an intersubjective process—and therefore the existential threat is also socially and discursively constructed (Buzan et al., 1998). In short, security threats are not given but are constructed by securitizing actors through speech acts (van Munster, 2009). The Copenhagen School’s approach to securitization thus prioritizes speech acts as the object of study, but this discursive approach provides an inadequate image of what constitutes a threat (Léonard & Kaunert, 2019; Balzacq, 2008).

The greatest revision of securitization theory has been propounded by the Paris School of security studies, distancing itself from the discursive emphasis of the Copenhagen school (Stępka, 2022). Balzacq (2008) argues that focusing on the functions and ramifications of policy tools aimed at tackling public issues is more apposite than examining threat construction at the level of discourse. Therefore, the Paris School emphasizes the role of security practices, which are enacted principally through policy instruments (C.A.S.E. Collective, 2006; Balzacq, 2011). Securitizing practices are actions that convey the notion that the confronted issue constitutes a security threat (Léonard & Kaunert, 2019). Accordingly, it is necessary to extend the study of securitization to non-discursive practices, by investigating acts such as the development of public policy instruments and their procedural implementation, and the inception, functioning, and performance of bureaucratic structures (Léonard & Kaunert, 2019). Bigo (2000) claims that securitization of certain problems is possible without speech or discourse. Hence, securitization does not always involve existential threats and departure from the realm of normal politics. Rather, securitization is institutionalized through the repeated actions and interactions of securitizing actors operating in the security field (Stępka, 2022). Additionally, the Paris School contends that securitization sometimes transpires and generates political and social consequences without the explicit consent of a relevant audience (Balzacq, 2008; cf. Buzan et al., 1998).

The approach of the Paris School, meaning emphasizing practices as opposed to discourse, is more apposite when investigating securitization processes in EU migration policy, although discourse remains relevant. In cases where there is an incessant and recurrent security threat, which will be shown below is the case with the EU and its conceptualization of migration as a security threat, a new drama aimed at securitization becomes unnecessary, as securitization has been institutionalized over time, meaning priority and urgency is implicitly assumed when speaking of a particular issue (Léonard & Kaunert, 2019; Buzan et al., 1998).

Securitization of Migration and Externalization through Soft Law

In the EU Strategic Agenda for 2019-2024, the European Council asserts that to ensure territorial integrity, guarantee security, and uphold law and order, it is indispensable to effectively control the external borders, declaring that the EU needs to know and be the one to decide who enters its territory (European Council, 2019). To accomplish this, the EU has intensified cooperation with third countries to combat illegal immigration and guarantee effective return of migrants through readmission arrangements and other informal instruments (Andrade, 2023).

As is discernible from the above, the construction of migration as a security threat has been normalized in prevailing political discourse at the domestic and EU levels, especially since the ‘migration crisis’ of 2015 (Moreno-Lax, 2018; Panebianco, 2020). It has been increasingly construed and framed as posing a threat to public order, domestic society, and cultural and national identity—therefore, migration has been securitized in Europe (Huysmans, 2000). Migration has been securitized through a discursive process that articulates a dominant truth, which casts unauthorized migrants as enemies, who imperil “the homogeneity of the State” (Bigo, 2002, p. 67). This process has been extant since the ratification of the Lisbon Treaty, which has promoted a notion of migration control that revolves around both precluding inflows and increasing outflows of “risky migrants” (Stępka, 2022, p. 68). The Lisbon Treaty and the Schengen acquis are “constitutional securitizing moves,” generating an inextricable nexus between migration and security, while also laying the groundwork for the necessary political and institutional frameworks that permit the expansion of securitizing moves in the migration policy domain (Stępka, 2022, p. 65; Huysmans, 2006).

However, van Munster (2009) argues that the securitization of migration in the EU does not operate through the explicit discursive staging of an existential threat, in contrast to the framework of the Copenhagen School. Security practices have in fact become increasingly de-dramatized and integrated within bureaucratic apparatuses, whose function is to contain and control mobility into the EU, rather than waging a war against an ‘enemy’ (van Munster, 2009). Therefore, the EU does not securitize migration through “dramatic speech acts” or “panic politics” which engender discourses of resentment and fear towards migrants (Stępka, 2022, p. 65). The Paris School more appositely conceptualizes the EU’s mode of securitization concerning migration as the capacity to manage threats, maintain control over its external borders, and to define imperiled identities (C.A.S.E. Collective, 2006). Securitization in the EU thus primarily occurs through the deployment of particular security practices, rather casting migrants as existential threats through speech acts (Léonard & Kaunert, 2019). The EU’s securitization of migration is usually dependent on technocratic practices, operating on a logic of “threat management” (Stępka, 2022; Bigo, 2002, p. 68). Securitization in the EU therefore works through technologies that are commonplace, through continual effects of power, through political contestation, and through inter-institutional competition over what is to count as the legitimate truth (Bigo, 2002). The EU has constructed a convoluted and distinct mode of securitization, encompassing a multiplicity of actors, policies, practices, interests, and discourses, which all have exerted significant effects on migration’s conceptualization as a security issue. Therefore, securitizing moves and frames constructed by the EU are not confined to one particular institution (Stępka, 2022).

The construction of migration as a security threat has inexorably generated policy instruments where control of the external border and return take precedence over asylum and development—thereby EU migration governance has become more a case of containment, control, and management (Longo & Fontana, 2022). Whereas EU (external) migration policy has strong securitizing aspects, it also constitutes a sphere in which “the notions of protection, care and security become closely entwined” (Stępka, 2022, p. 75). There is internal conflict between EU discourse and practice on detention and return policy—securitized policies are presented as “caring for” or “saving” migrants by providing shelter and addressing their needs during detention, while simultaneously designating them as endangering security and public order (Mountz et al., 2012, p. 529; Stępka, 2022). Human rights issues and ethical concerns have become secondary to security issues due to the EU’s formation of boundaries between Europeans and others, and between inside and outside (Buonfino, 2004).

Migration discourse and practices have thus been contentious towards third country nationals, typically based on the concept of “Fortress Europe”—referring to securitized migration practices and policies, their purpose being to avert entry of undesired migrants and asylum seekers, and to protect “material and symbolic Europeanness” (Geddes & Taylor, 2015; Stępka, 2022, p. 64). Accordingly, the EU proposed that the security issue of migration should be addressed at its roots, namely through the extraterritorialization of border controls, outside the formal jurisdiction of the EU (Menz, 2015). Consequently, the EU developed migration policies that outsource migration control and management to third countries—termed externalization in the literature.Moreno-Lax & Lemberg-Pedersen (2019) define the externalization of European border controls as “the range of processes whereby European actors and Member States complement policies to control migration across their territorial boundaries with initiatives that realize such control extra-territorially and through other countries and organs rather than their own” (p. 5). The purpose of externalizing migration control is to ensure unwanted migrants are unable to trigger the legal jurisdiction of the EU or its Member States, and designating them as legally inadmissible without evaluating the merit of their protection claims (Spijkerboer, 2017; Frelick et al., 2016). To achieve this, externalized migration policy instrumentalizes and deputizes third countries to function as “enforcement agents,” tasked with precluding the inflow of irregular migrants to Europe, often based on the contentious assumption that these are safe third countries (STC), which permits the EU to claim compatibility with international human rights and EU law (Spijkerboer, 2017, p. 231; Frasca & Roman, 2023).

External migration policies are not necessarily unlawful from the perspective of international law, but they frequently entail violations of the right to seek asylum, since they prevent migrants from arriving in Europe, and the principle of non-refoulement, by incentivizing third countries to preclude the departure of migrants through funding, especially considering cooperation with the EU is increasingly made conditional upon performances of border control (Amnesty International, 2017; Strik, 2023). However, situations also occur in which third countries leverage the EU’s dependency to further their own interests, termed “reversed conditionality” (Strik, 2023, p. 926). Third countries instrumentalize migrants, and thereby take advantage of the EU’s desire to avert their inflow, in an attempt to either blackmail the EU by seeking financial and development aid, or to induce the withdrawal of human rights criticism (Strik, 2023).

The precariousness of cooperation on migration management with third countries has led to a proliferation of the use of soft law instruments in the external dimension of EU migration policy, as opposed to formal international treaties (Andrade & Frasca, 2024). Soft law is traditionally understood as norms that are not legally binding, but that might have legal relevance in practice (Vara, 2019). Whereas no formal EU readmission agreements have been signed since 2011, the number of soft law instruments has substantially increased in the past years (Frasca & Gatta, 2022; Vara, 2019). Therefore, informality has become part and parcel of EU migration policy, especially in its external dimension (Frasca & Roman, 2023). Despite the fact that the European Parliament (EP) and civil society organizations have criticized informal arrangements for their potential impact on migrants’ human rights and their “lack of transparency,” the European Court of Auditors (ECA) recommended increasing the use of non-binding instruments (NBIs) due to the “greater flexibility” they infuse in agreeing to mutual objectives with third countries, since complications often arise surrounding the conclusion of formal international agreements (European Court of Auditors, 2021, paras. 37(e)—38). Additionally, NBIs are more suitable to the political sensitivity of the purported threat that migration poses, enhancing the margin of discretion in the fulfilment of commitments by signatories (Vara, 2019; Andrade, 2016).

However, as also noted by the EP, NBIs can potentially be problematic considering they pose difficulties for the enforcement of human rights and the lack of legal certainty inherent to such international commitments (Andrade, 2016). Besides this, the informalization of external migration policies has also raised questions pertaining to what rules and procedures govern their adoption, due to the fact that in practice non-binding agreements entail a clear tendency to operate outside the institutional principles and decision making rules enshrined in the Lisbon Treaty concerning the advancement of cooperation with third countries on migration management and control (Vara, 2019; Carrera et al., 2019). Extra-Treaty cooperation in the form of informal agreements in the domain of migration pose serious constitutional challenges to the legal order of the EU and have serious implications for the rights and freedoms of migrants, refugees, and asylum seekers, since they might contravene various EU principles and the distribution of powers between the EU institutions (Carrera et al., 2019).

Methodology

This research will employ a case study approach, incorporating the theory and literature as outlined above. It will first be scrutinized whether the Partnership constitutes a securitizing policy instrument, and subsequently its internal and external dynamics will be investigated through a socio-legal case study.

A case study can be conceptualized as “the intensive study of a single case where the purpose of that study is—at least in part—to shed light on a larger class of cases” (Gerring, 2006, p. 20). A case study examines a phenomenon in context, where context and findings cannot be disentangled. Moreover, the case study design investigates how actors generate, interpret, and understand phenomena, such as law, policy, and procedure. This facilitates comprehension in how and why actors understand, (mis)apply, comply with, subvert, or reject laws, which in turn can flow back into legal and policy making processes (Webley, 2016).

More specifically, the present research employs a socio-legal case study. Socio-legal research can be conceptualized as law placed in its social and political context, from which it is inextricable (Langford, 2017). Therefore, it is “the study of the interactions between the law and the social, historical and economic context within which it operates” (Peck, 2023, p. 3). Socio-legal research is not attached to any particular social science discipline, despite what its name might suggest. Sociological understanding of legal ideas is “transdisciplinary understanding”, but it is rightly termed sociological because it persistently and perpetually recognizes the necessity to interpret and reinterpret law both empirically and systemically as a social and political phenomenon (Cotterrell, 1998, p. 183). Socio-legal research can be summarized as “law in context” (Cownie, 2004, p. 35). Its objective is to widen and deepen understanding from the particular to the general, and to gauge the significance of that particular in a broader perspective (Cotterrell, 1998). One of the aims of the present research is therefore to establish whether the Partnership corresponds to the general discernible trend of informalization—the increasing reliance on non-binding instruments in EU external migration policy—thus whether it is similar to agreements such as the EU-Turkey Statement, the Joint Way Forward with Afghanistan, the EU-Tunisia Memorandum of Understanding, and various Mobility Partnerships, which all externalize migration control to third countries to preclude the influx of migrants. Therefore, the research accomplishes external validity, particularly considering the assertion that one cannot generalize from a single case is erroneous—matters can in fact be settled by analysis of a single case (Flyvbjerg, 2006).

In human rights research, the indivisibility and interdependence of law and its political context are especially conspicuous (Peck, 2023). The complicated issues presented by international human rights law cannot be solved within the confines of a single discipline (Langford, 2017). Mono-disciplinary research cannot provide answers for the questions it poses (Peck, 2023). Therefore, socio-legal research is more apposite, comprising two main elements—the first being a doctrinal step, consisting of locating pertinent legal sources. The second step is where law and policy are viewed and interpreted through the lens of the theoretical framework, in the present research this entails capturing the intricate relationship between law and politics concerning the EU-Egypt Partnership (Peck, 2023). Through within-case analysis the internal dynamics (the roles of EU institutions in the adoption of the Partnership) are made conspicuous, achieving internal validity.

To achieve the aims described above, the research paper will analyze relevant EU law, primarily the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) concerning migration and the role of the EU institutions in governing this matter, but also pertinent case law generated by the CJEU. The present research also relies on publicly inaccessible documents of the Council that pertain to the Partnership. Access to these documents has been requested by contacting the General Secretariat of the Council and the Transparency Unit of the Directorate-General for Communication (DG COMM) via electronic form. Subsequently, out of four requested documents, complete access was granted to two, partial access to one, and access to one was denied, based on Regulation (EC) No 1049/2001 and Council Decision 2009/937/EU. The above (legal) sources will be used to analyze the legal nature of the Partnership and the role played by the EU institutions in its negotiation and conclusion, whereafter it seeks to establish whether the Partnership is compatible with EU and........

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