The Shift to Soft Law at Europe Borders: Between Legal Efficiency and Legal Validity

Abstract

In contemporary politics of migration governance, the criterion of legal valid is hindered by legal efficiency. Or parliamentary government before executive governance. This tension between legal efficiency and legal validity can emerge in bilateral soft agreements. The article analyses the EU-Turkey Statement (2016) and the Memorandum of Understanding between Libya and Italy (2017). From these bilateral soft agreements, a turn from legal validity to legal efficiency can be observed. The efficiency criterion, by replacing the one of validity, limits significantly the role of the Parliaments and thus affects the overall institutional balance and the rule of law. The article recognises the geopolitical contingences that determine the adoption of soft law bilateral agreements. However, it suggests reflecting on how legal forms are manipulated to externalise and securitise the borders of Europe by retuning border management from legal efficiency towards legal validity, or in other words from soft to hard law.