The European Union (EU) often prides itself on being a beacon of human rights, democracy, and the rule of law. Yet, in recent years, the EU has increasingly turned to informal mechanisms to address crises, particularly in migration and foreign relations governance. These informal arrangements, while offering flexibility, raise critical questions about accountability, governance, and the protection of fundamental rights.

The Rise of Informality in Migration Governance

The EU-Turkey Statement of 2016, the Italy-Libya Memorandum of Understanding of 2017, and various other Mobility Partnerships are emblematic of the EU’s pragmatic approach to migration management. The purpose of these agreements is to manage migration flows and address crises effectively by cooperating with third countries and delegating responsibilities. These agreements prioritise flexibility over formalised legal frameworks, enabling rapid responses to complex crises. However, their informal nature means they often lack transparency, judicial oversight, and mechanisms to safeguard human rights.

For example, the EU-Turkey Statement, which aims to curb irregular migration, is not a formal treaty but a political agreement. Consequently, its legality cannot be directly challenged in EU courts, because agreements like the EU-Turkey Statement and the Italy-Libya Memorandum are not formal treaties under EU law. As such, they fall outside the scope of judicial review by the Court of Justice of the European Union (CJEU). Similarly, the Italy-Libya Memorandum outsources border control to a third country with a documented history of human rights abuses, which raises concerns about indirect refoulement under the European Convention of Human Rights (ECHR). However, the ECHR does not directly address the legality of such agreements unless individual cases are brought before the European Court of Human Rights (ECtHR).

These arrangements exemplify how informality can sidestep legal safeguards, leaving migrants without recourse to justice and exposing them to systemic abuses.

Informality and the Rule of Law

The EU’s foundational values, enshrined in Article 2 of the Treaty on European Union (TEU), include respect for the rule of law and human rights. Article 21 TEU further requires that the EU’s external actions uphold these principles. Informal migration agreements, however, often blur lines of accountability and shift responsibilities to actors beyond the EU’s jurisdiction, undermining these commitments.

The Common Foreign and Security Policy (CFSP), the framework for coordinating foreign and security policies, also relies heavily on informal mechanisms. While the CFSP is grounded in EU treaties, The CJEU has limited jurisdiction in CFSP matters under Articles 24(1) TEU and 275 Treaty on the Functioning of the European Union (TFEU). This creates governance gaps, weakens legal accountability, and diminishes the EU’s ability to uphold its normative commitments.

The Impact on Migrants and Humanitarian Actors

With informal practices prioritising deterrence over protection, migrants are often pushed into taking riskier routes, exposing them to greater dangers such as drowning at sea or exploitation by traffickers. Humanitarian actors try to help, but face significant challenges themselves. The Facilitators Package (Directive 2002/90/EC and Framework Decision 2002/946/JHA allows member states to criminalise assistance to irregular migrants, often without sufficient safeguards for humanitarian aid. Prosecutions under this framework, coupled with informal agreements that prioritise border security, create a chilling effect on life-saving humanitarian efforts. For instance, in 2019, Captain Carola Rackete of the NGO Sea-Watch was arrested in Italy for rescuing 53 migrants in the Mediterranean and bringing them to shore. Despite her actions being driven by humanitarian considerations, the Facilitators Package and Italy’s stringent migration policies created grounds for her prosecution under “facilitation of illegal migration.”

Toward a Transparent and Accountable EU

Addressing these issues requires a critical reassessment of the EU’s reliance on informal mechanisms for migration governance. While pragmatism is essential in responding to crises, it must not come at the expense of the rule of law and human rights, such as the prohibition of torture and inhuman treatment.

First, the EU should formalise agreements like the EU-Turkey Statement and incorporate binding human rights guarantees, along the lines suggested by several NGOs. Second, the Facilitators Package must be amended to include explicit protections for humanitarian actors. Third, greater transparency and judicial oversight are needed to ensure that informal agreements align with the EU’s foundational values.

As the EU continues to navigate complex migration challenges, it must balance flexibility with its commitment to governance and human rights. Only then can it truly uphold the principles it espouses.