A review of some conflictual issues dividing Member States dealing with the refugee crisis. Interview with Irene Wieczorek, researcher at the Institute for European Studies
In the last year there have been many suspensions of the Schengen agreement. Similar episodes had already occurred in the past, but they now seem to drastically intensify. Is it so?
The rule within the European Union is that “Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out”. One can read this at Article 22 of the so called “Schengen Border Code”, establishing a Community Code on the rules governing the movement of persons across borders.
The Schengen Border Code envisages nonetheless some possible exceptions when there are risks for public policy or internal security. If a Member State wishes to reintroduce such controls, it must follow a specific procedure which imposes to inform the Commission, as well as to reintroduce such systematic border control only to the extent necessary to address public policy and internal security matters, no disproportionate measures should be taken. The Commission is entrusted with evaluating whether the decisions taken are proportionate and whether the controls at the borders are being carried out in conformity with the law, especially if human rights are respected.
In the past, Member States have re-introduced border controls in some very few occasions, for instance on the occasion of important high level events such as meetings between Heads of states (G7 in Germany), visits of foreign presidents (e.g., the US president in Estonia), sports events (Euro 2012 Football Championship in Poland). The number of suspension has nonetheless dramatically increased in the past two years as a result of the refugee crisis. If one looks at the data provided in an official document from DG Home one can appreciate that temporary controls were introduced 3 times in 2006, 3 times in 2007, 3 times in 2008, 7 times in 2009, 5 times in 2010, 4 times in 2011, 3 times in 2012, 1 time in 2013, 4 times in 2014, all in correspondence of specific highlight events. Then in a time frame of less than a year, namely from September 2015 till today, 17 suspensions have been registered in various Member States, all justified on the basis of an overflow of migrants and persons in need of international protection, that is asylum seekers or, how they are referred to in the media, “refugees” (technically one becomes a refugee when he or she is actually granted asylum, that is the status of refugee).
What this tells us is that the exception has become more or less the rule. All these suspensions have been carried out in accordance with the law, that is following the established procedure. This means that Member States did not decide to completely and unilaterally step out of the system, they still respected EU law. However, on a closer look it also tells us that the substance of the Schengen agreement, that is free movement of persons across the EU, was betrayed in practice.
In this field, a number of intergovernmental agreements have also been reached among Member States, the Austrian led coalition to close the Macedonian-Greek border being the most important. How do you read this situation?
A distinction might be traced between intergovernmental agreements, which are examples of international law, and EU norms, which are for the most part examples of “supranational law”. The first (intergovernmental agreements) are agreements between two or more sovereign States that enter such agreements freely, and each negotiating government has a full say on the content of such agreement. EU law such as regulations, or directives, are adopted by a qualified majority, which means that one or more governments might be outvoted in the Council, the text becoming binding also for them. In some cases (regulations but not directives), the text is also directly binding without having to be turned into national law by national parliaments.
International agreements leave much more space to national states, which act as separate independent entities. EU law is the expression of a different philosophy, it implies the existence of one single community, which shares the same values and the same objectives, and within which decisions are taken democratically, and by a qualified majority, being valid for everyone.
Now the fact that Member States resorted more and more to international agreements, rather than to meeting in Brussels and agreeing on new EU rules, tells us a lot on how Member States understand crisis management. They do not trust each other and prefer to “play solo” or cooperate with those Member States or non EU states that share their same approach to the crisis, in our cases the same policy on migration, rather than acting as players within the same EU community. It is interesting to notice that also the recent Eurocrisis saw the rise of intergovernmental agreements, an example can be be the Treaty establishing the European Stability Mechanism signed in 2012. Overall it seems that in times of crisis Member States do not decide to act together to manage big problems but rather stick to international cooperation as it occurred before the new EU method was introduced.
If one looks at what has been going on at the Macedonian-Greek border one cannot avoid asking what kind of legal responsibilities is Austria taking on, when it allows or helps the Macedonian authorities throwing tear-gas to families at the border. If human rights violations take place to patrol the border, can Austria (or other Member States) be made accountable, considering the number of police officers of many different Member States on the ground?
One must distinguish between the individual responsibility of each police officer and the responsibility of the various Member States involved, implementing specific policies in violation of human rights.
Each police officer will have to respond of a violation of human rights within his own Member State if he or she has acted in violation of national laws, as well as national laws implementing international standards such as the European Convention for the protection of Human Rights and fundamental freedoms.
Concerning the responsibility of the Member States (MS) involved, for instance Austria, there are various avenues possible for holding them legally accountable for violation of human rights.
Firstly, there might be some “intra EU” mechanism to hold MS accountable.
The Treaty on the European Union envisages the possibility to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. This can occur if a Member State is found acting in violation of the core values on which the EU is grounded on, as established in Article 2 of the Treaty on the European Union (namely human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities). It has been widely denounced that the practices taking place at the borders are in deep violation of the core values of the EU and that the EU spirit is being betrayed (see the declaration of Guy Verhofstadt, leader of the ALDE group in the European Parliament on The Guardian .)
There might be a case for holding accountable any Member States that allow, order or encourage practices such as throwing tear-gas at families on the border. However, it is very unlikely that the so-called Article 7 procedure will be employed against Austria or any Member States. The procedure is very lengthy. There need to be a proposal of at least one third of Member States, or by the Commission, then a unanimous decision in the Council with the consent of the Parliament in order to set the procedure in motion establishing that there has been a breach of human rights, and then a summons for the Member State involved to provide explanation. Granted that a breach of the law is established, then the Council acting with a qualified majority might impose the suspension of certain rights.
This mechanism is very sensitive from a political point of view, since Member States do not normally like to point fingers at one another for diplomatic reasons. For instance, even though this possibility exists, very few Member States have brought infringement proceedings for violation of EU law against another Member State before the Court of justice. Given the current political situation, and the generalized unwelcoming attitude of Member States towards asylum seekers, there would not certainly be an unanimity in the Council in condemning Austrian practices in controlling the borders.
Another intra-EU mechanism would be to hold Austria legally accountable before the Court of Justice for violation of the EU Charter of Fundamental Rights. The charter imposes at Article 4 the prohibition of inhuman and degrading treatment, moreover, it also imposes the respect of the principle of non-refoulement at Article 18 and 19. The Treaty on the Functioning of the EU also recalls the importance of establishing a policy on asylum which is in compliance with the principle of non refoulement (Art. 78(1) TFEU). This principle is a principle of international law which forbids the rendering of a true victim of persecution to his or her persecutor. Generally, the persecutor in mind is a state actor. Non-refoulement is a key facet of refugee law, that concerns the protection of refugees from being returned or expelled to places where their lives or freedoms could be threatened.
Concerning extra-EU mechanisms for holding the Austrian government accountable, single individuals could certainly bring a case against the Austrian government before the European Court of Human Rights (ECHR) in Strasbourg lamenting a violation of one’s human rights as established in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), especially Article 3 which imposes the prohibition of inhuman and degrading treatment, and which has been interpreted by the case law of the Court of Strasbourg as imposing a prohibition of “non refoulement” (leading cases are Soering, Cruz Varas, Vilvarajah, and Chahal).
In addition to the violation of the ECHR, one could also envisage a case against Austria before the International Court of Justice in the Hague for violation of the prohibition against torture and the prohibition against refoulement as established by international customary law, and by international treaty law such as the Geneva Convention 1951 relating to the status of refugees.
The problems I see with all these intra and extra EU means of legal redress against the very deplorable practices that are taking place at the Greek-Macedonian border are of three orders.
First there is a factual problem, that is to assess if the given practices, for heinous as they are, actually meet the very high standard for torture, or the slightly lower standard for inhuman and degrading treatment. It should be noted in any case that the Austrian government can be held accountable for a sort of responsibility “par ricochet” namely also if it contributes to pushing migrants or asylum seekers towards countries in which their fundamental rights would be in danger. The Court of Justice has already held that in Greece there are extremely poor reception conditions, and systemic failures of the asylum system which can amount to violation of the prohibition of inhuman and degrading conditions as established by Art. 3 ECHR. Granted this Austria might be held indirectly responsible for violation of Article 3 of the ECHR for pushing migrants and asylum seekers back to Greece.
A second problem is the actual bringing of the case to justice. At least in the case of the Strasbourg Court the case must be brought by the individual whose rights have been allegedly violated. It is unlikely that a single asylum seeker would have the resources for bringing up the case, in these occasions it is normally NGOs that take up these cases and bring them before Court.
A third problem concerns the timing. Cases before European and International jurisdictions take incredibly long times. This would mean that, admitted that all conditions are fulfilled, the Austrian government will not have to pay compensations but in years times. This hardly addresses the urgent crisis which is taking place at present.
Had Macedonia been a MS, would the situation be different? Or has this been possible as the Balkan country is not an EU member, thus allowing Austria to make the deal to the detriment of Greece?
Technically Austrian responsibilities, admitted that one finds a legal avenue and the grounds for holding the Austrian government accountable, do not depend on the partner State with which these violations are committed. This holds true for all the avenues of legal redress mentioned above.
What about the situation in the Greek refugee camp at Idomeni? Looking at the human rights situation there, the question that emerges is how acceptable it is for the EU legal standard what is going on?
The situation at the Idomeni camp is obviously appalling. The UNHCR, last April, denounced that the conditions and the practices in place in Idomeni were not in line with international standards. One can find further information and further links here . Obviously the EU legal standards cannot be considered as requiring less that what is imposed by international standards, and the UNCHR assessment is therefore of a great concern.
My worst fear is that, as the decision taken at the Council of the European Union on the 23rd September concerning the 160.000 refugees redistribution among Member States is not respected, and there is no sharing of the burdens of the crisis as decided then, this will constitute a very dangerous precedent in terms of disregard of the rule of law. Is it so?
The problems I see with the first and the second relocation decisions do not necessarily concern the respect of the rule of law, but rather their total inaptitude to serve their purpose.
In terms of the rule of law, the decisions were approved by a qualified majority of the Council, with only four Member States opposing their adoption, namely Hungary, Slovakia, Romania and the Czech Republic. Out of these four outvoted states, two (Hungary and Slovakia) decided to bring a claim before the Court of Justice seeking the annulment of the decisions. Interestingly enough, it was observed that this approach of seeking legal remedy against the decisions is actually expression of a commitment to the rule of law . Rather than simply refusing to comply, the two States have chosen to play by the rules and start a public debate on the limits of the competence of the Council of Ministers to use a qualified majority vote to impose on Member States, including those who voted against the Decision, an obligation to receive asylum seekers, consider their request for international protection in a serious asylum procedure and provide them with lawful residence if it appears they are in need of protection.
Concerning then the actual implementation of the decisions, it is indeed true that the number of asylum seekers that have been relocated on their basis is ridiculously low (around 700 persons as of March have been relocated from Greece and Italy).
This is however not only due to the unwillingness of Member States to comply with the decision. There is a more structural problem which makes these decisions unfit for their purpose, namely that of ensuring a fair share of the burden of crisis management among Member States, and a fair and timely assessment of all asylum claims as well as decent travelling conditions, for those who seek to reach Europe and decent living conditions for those whose asylum claim is being assessed.
In order for the relocation process to begin, firstly asylum seekers have to claim asylum in the State in which they have been fingerprinted. The relocation will occur only in a second instance. In other terms asylum seekers currently staying in camps such as Idomeni in Greece, or Calais in France or even the less famous Dunkirk still in France should first seek asylum there and then their claim will be relocated as foreseen by the relocation decisions. Asylum seekers who came to Europe trying to reach specific countries, mostly Germany or the UK where they have either family members or where they believe they will have better life opportunities, not lastly for linguistic reasons, are stuck in these camps at the border because they seek to transit through either France or Greece and reach their destination. They did not wish to seek asylum in these countries in the first place. The vague possibility of being relocated as per established by the relocation decisions to a country which is not their initial choice and in whose selection they have no say whatsoever is not going to motivate them further to seek asylum in either France of Greece for instance.
Put it in simpler terms, even assuming that all Member States would be happily complying with these decisions in law and in fact, that is building adequate facilities speeding up the procedure enabling full integration of each asylum seeker, which is certainly not the reality, still this would not be a solution to the problem of accommodating an unprecedented number of asylum seekers across Europe relieving Member States such as Greece of the enormous burden which is now on their shoulder. This is because these decisions have been thought, in my view, with the sole aim of taking into account the interests and the perspective of Member States (also shown by the fact that the numbers of people to reallocate are extremely low, 160.000 persons to be reallocated in the territory of a 500 millions people), while depriving individual asylum seekers of any agency in the decision of where to seek for international protection.
International law does only include a right to seek international protection, but it does not grant the right to seek asylum in a specific country. In this sense the relocation decisions are not in violation of international standards. However, the EU policies failed to take into account the specific human and personal dimension of the crisis, and only focusing on reallocating the smallest number of individuals possible, de facto regardless of individual preferences and of the obvious differences in economic and logistic capacity for accommodation of refugee which distinguish Member States (Germany has naturally more capacity than would Romania for instance and thus has more opportunity to offer). This has led to a situation in which thousands of persons are stuck in various parts of Europe and EU policies prove far from effective in solving the problem.
After the EU-Turkey agreement, the problem of burden sharing continues to be there. Should the Commission find the courage to open infraction procedures in a few cases? And what about taking MSs to the ECJ court?
As I tried to explain above, the problem does not only lie in whether EU law (for instance the relocation decisions) are being respected or not. Even admitting that such cases are brought before the Court of Justice and that Member States are then obliged to actually take in a number of refugees in a sufficiently timely manner, which is not self-evident given the average length of the cases before the ECJ, this would hardly solve the problem in my personal view.
An alternative solution which is being proposed in academic environments is that of building a centralized EU Asylum Office where all asylum seekers wishing to establish themselves can address their claim which will have to ensure swift proceedings (it does not need to be a physical single office, it can also have a decentralized structure very much as it is proposed for the European Public Prosecutor Office which would probably be an EU agency, such as Europol for instance, but having offices in all the Member States), leaving to asylum seekers the possibility to then choose their country of destination.
This would firstly relieve each Member State, especially the smallest and more loaded ones such as Greece or Malta, from having to process massive numbers of asylum claims, as it happens at present. The Dublin system currently in force imposes that each asylum seeker must seek asylum in the (first) European country in which it sets his or her foot.
In the case of the current crisis this would mainly be Greece, during the migratory flows in the case of the Arab spring crisis it was Italy. Given that after the EU-Turkey deal the Balkan route seems to have been closed, it is not to be excluded that Italy will again be under pressure if asylum seekers trying to reach Europe through Libya thus arrive to Italy first. The relocation decisions tried to fix this avoiding that Greece had to process all the claims. I explained above why it did not work. Having a centralized EU Asylum office financed through the EU budget thus through all Member States would help solving this problem.
Secondly, once the claims assessed and having the refugee chosen their country of residence, there would the challenge of integrating an important number of persons in the labor market in the first place, as well as in the society more in general. These integration processes could then be eased once again with EU funds establishing programs ad hoc, ensuring access to education and so forth. The EU apparently found 3 billions to give to Turkey to support refugees receptions and integration, if there is the money why not invest it for reception and integration in our own countries?
Naturally, it would be naïve not to consider that welcoming wide numbers of individuals with a traumatized past, and with a different cultural and religious background – admitted that one subscribes to the view of Europe as only white, western and christian which in itself is a debatable assumption – in just one country, assuming then that the highest number of refugee would concentrate in Germany for instance, is a challenge in itself. And this cannot necessarily be only solved through an extra inflow of EU funds. However, at this point the choice becomes moral rather than legal. The choice is whether we want to live up to the highest standards of international law, which impose to grant asylum to those who are in need of protection with the most human and compassionate way, or if we want to stick to this patchwork approach trying to welcome the lowest possible number of individuals, which has proved clearly ineffective, and which does not make any justice to the values Europe prides itself to be grounded upon.
The EU-Turkey deal has been harshly criticized for its disregard of EU human rights standards. Can you explain why? Why is the Commission regularly claiming instead that the HR standards are respected?
The EU-Turkey agreement presents various legal problems, not lastly on whether it was legal at all to to conclude such an agreement. One can read a comment on it here .
The main legal problem concerning the respect of human rights is the following: can Turkey be considered a “safe third country”? The whole principle of any asylum system is to welcome individuals who come from non-safe country of origins, and to grant them protection. While as stated there is no right to be granted asylum in one specific country, there is certainly an obligation of not sending asylum seekers back to their own unsafe country of origin, or to send them to a country where they will not be granted actual international protection. This aspect is key to understanding the Human Rights problems with the deal with Turkey.
As part of a larger European Agenda on Migration, the European Commission has put forth a proposal for establishing a common list of safe countries of origin to be used in assessing asylum applications of applicants originating from these countries. This list includes Turkey, as well as Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Kosovo, Montenegro and Serbia. The criteria for selecting the countries include the number of human rights violations as ruled by the European Court of Human Rights, and the percentage of successful asylum applications in the EU of individuals coming from these countries. Statewatch , nonetheless, observes that the inclusion of Turkey in this raises some important questions. It is stated that in the case of Turkey’s reputation for human rights infractions, the presence of an ongoing conflict with a minority population, the Kurds, within its borders, as well as the fact that no Member State at present has chosen to place Turkey on its own safe country of origin list, whereas the other proposed safe countries of origin are deemed safe by multiple Member States, makes Turkey an outlier in the Commission’s proposed list.
Still, according to Statewatch, the reasons for including Turkey among the safe countries of origins are of a political nature: “Turkey is a candidate country to the EU and has been in accession negotiations since 2005. As such, there have been efforts on both sides to enhance dialogue and cooperation with the aim of setting Turkey on the right path toward meeting the requirements for accession”. Including Turkey in the list of safe countries appears as a further step in encouraging Turkey in its accession process.
It should be noted that the UNHCR warned states against using the safe country of origin practice as a way of encouraging “normalization” and “democratization,” and deemed this practice “inappropriate” in its politicization of a humanitarian procedure.
It seems nonetheless that Member States embraced the Commission approach, and negotiated the deal with Turkey. If Turkey is a safe country of origin or of destination is questionable in general, there is a specific legal problem with respect to the current refugee crisis. Turkey is part to the Geneva convention of 1951 on Refugees and its 1967 Protocol, and thus it is bound to give international protection to those in need. However, it has maintained a geographical limitation for non-European asylum seekers. It thus recognizes only asylum seekers coming from Member States party to the Council of Europe. This means that Syrians, Iraqis and all other refugees coming from other non-European countries currently affected by conflicts are only granted a temporary protection in Turkey, and not full asylum. They have no possibility to apply for permanent refugee status and to enjoy all the rights, for instance to work legally. The idea behind is to “host” them till the conflict ends and then send them back to their countries. Given the international situation this means that the persons sent back to Turkey, or that are currently staying in the country, will find themselves, for an indefinite amount of time, in a somehow “frozen” situation with limited rights being granted, and thus exposing them to the risk of working illegally and being exploited. Admittedly, in January this year the Turkish government has amended the law granting Syrian refugees the permission to work legally in the country. This is certainly a step forward which has been welcomed by the UNCHR . However, this does not end the state of legal and thus existential uncertainty that people fleeing conflicts experience if not granted a permanent refugee status. This together with the general problematic fundamental rights situation in the country makes it questionable whether the EU lived up to its moral, as well as legal obligation to grant asylum to those in need.
In addition of being morally and legally questionable, this deal with Turkey is also in my view politically embarrassing for the EU. I find it embarrassing that a political-economic entity of 508 million inhabitants - the world’s third largest population after China and India, covering a territory of 4 million km² with a GDP in 2014 of 18.495 trillion US dollars, had to resort, in order to manage a significant migratory crisis crisis, to a negotiation with one single State such as Turkey whose population, surface and GDP are less than a fifth than the EU ones, treating the partner as on pair, if not even acting as the weaker party.
The deal on one refugee vs one illegal migrant (the EU will welcome one Syrian refugee if Turkey takes back one illegal migrant) is particularly telling on how the EU perceives, or let one believe it perceives, its own and Turkey's capacity of absorbing migrants as being equal. If the EU is not able to manage the crisis by itself and has shown how it is in dire need of the support of a neighbouring country, as exemplified by the incredibly favourable conditions granted to Turkey in this deal in terms of visa liberalization and re-opening of EU accession negotiating chapters, how can it expect to play a key role as an actor at a global level and be taken seriously?
The Prime minister of Malta, Joseph Muscat, was recently interviewed by J.H. Weiler , the president of the European University Institute (EUI) in Florence, in the framework of the annual conference organized by the EUI on the State of the Union. Maltese governments are not known for their particularly welcoming policies towards migrants. As a consequence, probably Muscat’s government is not the best placed to lecture EU on its management of the crisis. However, I believe he made a very clear point when, answering the question “do you think the EU-Turkey deal will work, do you think Erdogan will respect it?” he pointed out the fact that the implementation of the EU best solution to the refugee crisis depending on one single person, and namely President Erdogan, already tells you how weak this deal is.
I have the impression that the first few hundred refugees forced back to Turkey had not been informed about what was going on, otherwise they would have asked the refugee status in Greece, rather than going home. Do you have any information about this?
I believe that given the numbers, and the urgency to show that the EU-Turkey deal was being implemented, combined with the huge pressure which already exists on Greek facilities and infrastructure, it is highly likely that the procedures have not been fully respected and that the individuals have not been fully informed of their rights.
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