Rescue Missions in the Mediterranean and the Legitimacy of the EU’s Border Regime

Abstract

In the last seven years, over twenty thousand people have died trying to reach Europe by crossing the Mediterranean Sea. Rescue missions by private actors and NGOs have increased because both national measures and measures by the EU’s border control agency, Frontex, are often deemed insufficient. However, such independent rescue missions face increasing persecution from national governments, Italy being one example. This raises the question of how potential migrants and dissenting citizens should act towards the EU border regime. In contrast to the literature, which mainly addresses migration on the basis of justice requirements, this article focuses on the legitimate authority of the EU’s border regime. Focusing on the legitimacy criteria for states’ claims to regulate migration opens a fruitful normative perspective, given the pervasive disagreement over the content of justice in migration. What reasons for compliance and non-interference does legitimacy supply for potential immigrants and dissenting citizens? And what legitimacy standard may be appropriate for the power that individual states claim over potential immigrants? We argue that, even assuming a minimal legitimacy standard for the state-migrant relationship, the structure of the EU’s border regime exhibits unique features, which cause it to stand in tension with such a standard. By coordinating its Member States’ border regimes, especially through Frontex, the EU claims and exercises power over potential immigrants. However, the asymmetrical delegation of state powers to the EU means that the power involved in regulating European borders is, in core respects, unaccountable. This unaccountability, we argue, is significant for the legitimacy of the EU’s border regime. This article sheds new light on the morality of unauthorised rescue missions by assessing the permissibility of resistance to the EU’s border regime.

Symmetry in the Delegation of Power as a Legitimacy Criterion

“…The EU and its agencies do not primarily hold coercive power, but they nonetheless claim authority, expect compliance, and citizens have beliefs and voice concerns about these institutions' legitimacy. Instead, we can understand legitimacy as justified authority (Buchanan 2018;Sandven and Scherz 2022). Under this conception, an institution is legitimate when it provides content-independent reasons for compliance with its directives.…”

“…In the absence of appropriate accountability mechanisms, institutions will have fewer incentives to satisfy the human rights requirements that normatively supports their claim to rule. An upshot of the lack of such incentives is that, even if an institution would in fact satisfy its human rights obligations, that satisfaction would lack robustness: Its fulfilment is primarily explained by the goodwill of the relevant institution's officers and not by institutional constraints (Sandven and Scherz, 2022, pp. 7–8).…”

You can't tell me what to do! Why should states comply with international institutions?

“…The question of the state's legitimacy has been at the core of political philosophy, and the concept and standards of legitimacy in respect of international institutions have recently garnered much attention (e.g. Buchanan and Keohane 2006;Christiano 2012;Besson 2014;Adams, Scherz, and Schmelzle 2020;Sandven and Scherz 2022).…”

“…The question of state legitimacy has been at the core of political philosophy, and the concept and standards of legitimacy in respect of international institutions have recently garnered much attention (e.g. Adams et al, 2020; Besson, 2014; Buchanan & Keohane, 2006; Christiano, 2012; Sandven & Scherz, 2022). However, one aspect has largely been neglected in this debate, namely how and when legitimate authority is able to bind not only individuals but also states.…”

The Practice and Legitimacy of Border Control

“…Consider, for example, the recent attempts by European governments to prosecute captains and crew on rescue missions in the Mediterranean(Sandven and Scherz 2022).15405907, 0, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/ajps.12736 by University Of Oslo, Wiley Online Library on [15/02/2023]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License…”