Europe’s Embarrassment

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The European Agenda on Migration, published May 13 and implemented throughout the past summer, is a fascinating initiative. The policy has four stated “pillars”: (1) reducing incentives for unauthorized or “irregular” migration; (2) border management — which is understood as both border enforcement and saving the lives of migrants at risk; (3) a “strong common asylum policy” and (4) providing new avenues for legal migration.

This agenda presents the EU’s most comprehensive attempt to address a surging number of asylum seekers and migrants now seeking to reach Europe. As one EU agency wrote a couple of weeks ago, “The European Union is witnessing perhaps the largest scale of immigration wave ever”; 153,000 migrants have been detected at its borders since the beginning of this year. These have been accompanied by a continuous flow of news and, especially, of macabre images. Families try to make their ways under barbed wire fences in remote Balkan regions; some have travelled as far as the Arctic circle to enter Europe; a refrigerating truck has been abandoned outside of Vienna with 71 migrant bodies on board, generating headlines worldwide; and more bodies constantly being washed on Mediterranean shores. While the Middle East is torn by civil wars, terrorism, and persecution, destitute poverty and protracted conflict continues in much of Africa. The “crisis,” in other words, is far from being as new as some commentators might make one believe. All this of course presents an enormous challenge for the EU – which is unlikely to end any time soon.

The response to this challenge, provided for in the European agenda, has so far not only been stuttered. It has also been riddled with internal contradictions. The EU, still traumatized from managing the Greek debt crisis, is now caught in a new and perhaps greater problem. The agenda has many moving parts, which in the bottom line do not really fit together in any coherent plan.

I will nevertheless try to assess it concisely, providing an account of its legal, ethical, and political dimensions – and highlighting the problems I think this response raises in each of these aspects. These will lead to the basic question I would like to raise here. What makes the movement of destitute people such a defining moment for the (historically) European tradition of international law?

Law

From a legal perspective, perhaps the most problematic part of the program is an aspect of the “second pillar”: the use of military force in the context of Common Security and Defense Policy (CSDP) operations.

Early in the summer the EU began a military operation aimed at preventing migrant smuggling in the Mediterranean. “The first phase” of this operation is underway since June 22, consisting of surveillance and intelligence efforts to study the “business model” of smuggling networks. This first phase does not entail the use of force. However in “phase 2” of this operation the plan was to intercept boats on the high seas and seize them; and as “phase 3” had it, European forces would proceed to destroy smuggler boats, alongside fueling stations and possibly other property used to facilitate smuggling.

These actions would amount, according to the EU’s own legal analysis, to a use of force under international law. The EU has therefore requested Libya’s consent (failing to obtain it from either of the Libyan de-facto governments). And it has sought to obtain a UN Security Council Resolution authorizing the use of force under Chapter 7 of the UN Charter – confronting a staunch Russian rejection.

Without Libyan consent or a UNSC authorization there is little or no legal basis for the planned phases 2 and 3 of the current maritime operation. From the perspective of international law, the fact that much of the operation is conducted on the high seas is particularly problematic. The United Nations Convention on the Law of the Seas (UNCLOS) has codified the old customary rule of the “freedom of the high seas,” which prevents the interception of vessels beyond a state’s territorial waters. This rule does have several exceptions, one of which applies to suspected slave ships. Some scholars have suggested an “evolutionary” interpretation of international law may lead to the conclusion that smuggling vessels are slave ships. This approach, however, requires a rather unlikely stretch of terms.

The upshot is that the EU has embarked on an operation it does not have the legal basis to complete. With Libyan consent or a Russian green light for a UNSC Resolution, this may change. Even then, however, legal questions remain open. For example, what kind of force can be used against the civilian population of smugglers, in circumstances that do not reach the threshold of an armed conflict? These are all rather thorny and controversial issues.

Ethics

Though probably the most controversial one, military measures are of course not the only component of the four-pillar European Agenda on Migration.

The clearest ethical commitment in this agenda is to rescue. This is of course also a legal obligation – the sources most often cited being the UNCLOS and SOLAS Conventions, dictating duties of rescue extending to the high seas. But the language here goes distinctly beyond these legal obligations, referring to a kind of ethos. The program reads: “Europe cannot stand by whilst lives are being lost.” Human rights organizations and other civil society actors have in the last month often reiterated the same message.

But there is another ethical commitment articulated in the Agenda. Remember the third pillar: those who are saved are granted access to asylum procedures. To facilitate that, we are told, rescued refugees and migrants will be relocated in safe countries and redistributed across Europe (after a revision of the Dublin Regulation). There is has been little agreement between European states about just how to operate this redistribution of people across borders.

Yet, even if agreement on such issues can be achieved, the underlying problems remain. How is this supposed to fit in with the other components of the agenda — particularly with the first pillar of the program — “reducing incentives for irregular migration”? Here comes a set of proposals regarding the creation of “migration hotspots.” After saving migrants and smugglers – Europe is not going to compromise that obligation. Migrants will be transferred to areas where several things will happen. The vast majority will be quickly removed (the European border enforcement agency Frontex is promised augmented authorities to do so). At the same time, those who are identified as bona fide refugees will be provided access to asylum. This rescue and quick processing approach may sound compelling. But it is an exercise in hypocrisy. There are two equally possible outcomes to this plan. Neither achieves its stated policy objective.

One option is that in fact, what we see here is an absolute preference for rescue at the expense of access to asylum or other forms of international protection. Stated in different terms, the plan grants people the opportunity to stay alive, while blocking their chances to live a life worth living. To put it more practically, these “hotspots” may simply become removal centers, with the token presence of the European Asylum Support Office (EASO) – which will have no real power. This may to some extent achieve the objective of limiting migration flows. But it will also be completely unfaithful to the stated ethical commitment to asylum.

Also probable, however, is that the dual commitment to both rescue and asylum will in fact render the entire mission a failure. (Judging on the summer events, this seems to be where things are going). Rather than deterring migrants, the presence of an augmented European enforcement operation will increase incentives to take to the sea. After all, if rescue is ensured, and access to asylum is also effective, why not take one’s chances? Today, vast African and Middle Eastern populations suffer from persecution based on their religion, ethnicity, or political views. The number of potentially successful asylum applicants is constantly rising. Unsurprisingly, those who seem most cognizant of this option are enforcement authorities themselves. It is for this reason that they have requested to keep rescue operations unreported.

This result is hypocritical towards domestic constituencies. It means allocating resources to and operation that has no chances of success. More importantly, it presents a highly confused agenda, with no ability to decide where its actual commitments lie. Indeed, from this perspective the European Agenda looks like something that is not at all new. It is an attempt to carry on as if things are as usual, while invoking an emergency rhetoric.

Politics

The third aspect I want to address is politics. What I mean by this is the question: even if the Agenda can succeed, is it a good idea, as a matter of the domestic interests of European member states?

When it was initiated in the spring, stemming the flow of migrants in the Mediterranean may have looked like an effective plan in appeasing domestic constituencies. After a summer of tragedies in the Mediterranean Sea, it looks more like an attempt to seal a lid over an already boiling pot, instead of lifting it and releasing the steam. If successful, such a policy is bound to fuel frustrations with failed western promises of freedom and prosperity for all. At least until recently, some in the Middle East and Africa still looked to western countries as representing a Universalist message that may potentially include them. I heard such hopes, for example, while interviewing North African migrants at the outskirts of Athens in 2011. In a makeshift structure located in agricultural land, a Tunisian unauthorized migrant explained that migration and revolution have on common source: a desire to live in a democracy.

Shutting the doors of Europe at the face of unprecedented migration is likely to change people’s minds about this. It will feed anti-European and anti-Western sentiments. If, as explained above, even the touchstone rules of international law can be bent, there is no reason to believe in Europe’s message of enlightenment. Treating migration as a military issue may have the effect of a self-fulfilling prophecy.

Europe’s Embarrassment

How is it, then, that the refugees and migrants have thrown European leaders — and indeed European societies, into such a deep confusion?

What we are witnessing at play is a very basic aspect of a largely European tradition of international law. In this tradition, a fiduciary duty exists not only between a state and its citizens. Alongside such duties, there is a complementary obligation between all human beings – when no state can enforce the rights of particular persons. Humans in dire risk outside of any sovereign territory have a unique capability to trigger the latter, precisely because they have no state protection (real or imagined). And because of this dual structure of the law, sovereign states can never be absolutely self-contained.

Perceived conditions of crisis — this one has been around for much more time than public perceptions acknowledge — have historically always tested this structure. At stake is a kind of existential dilemma: either treat people as humans and risk changing who you are (in terms of the composition of your population), or give up human rights and risk changing who you are (in terms of your constitutive commitments). At the beginning of September, European societies still seem to be faltering on this question. With unauthorized movement soon entering the low season of winter months, perhaps some of the embarrassment will be dispelled.

Based on a talk at City University, London, July 29, 2015.

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