Refugee crisis. Coordinating Chaos [email protected]

Refugee crisis. Coordinating Chaos

[email protected]

Agenda

1. The chaos: where does it come from?

2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality

3. Protection of refugees in the past: exile and asylum

4. Comparison with the Common European Asylum System

5. What to do?

Studium Generale B. Schotel 2

Agenda





5. What to do?


Legal framework allowing ‘chaos’

Since 1997 Treaty of Amsterdam roll out of Common European Asylum System

Ratio: Geneva Convention, internal free movement, refugee crisis ex Yougoslavia, refugees in orbit

Regulations and Directives Implemented and applied by Member States Checked by EU Commission and CJEU

And ECtHR (ECHR)


Administrative and jurisdictional framework Members States do the work Member States determine whether refugees qualify Standards of procedures, and protection differ (because

Directive) Still unity and uniformity are presumed: Dublin Regulation Very important: constitutional framework of each Member

State fragmented E.g. City level competent for public order

Lander/Community level competent for education; social benefits


Consequence: ‘chaos’


Agenda





5. What to do?


Link to Doomernik and Schrover

Migration perennial and global phenomenon Many drivers to migrate Many reasons to include and exclude migrants Today’s ‘crisis’ not necessarily worse than

previous experiences Europe only taking up a small amount of the

burden Framing: it’s all in the eye of the beholder


Dominant frame for understanding and criticizing the ‘chaos’ Dominant frames

Sovereignty, humanity, human rights,

humanitarianism, equality, common

approach Focus this evening on the ‘good guys’ frames:

humanity, equality and common/universal approach


Benevolent frame may be inadequate

The problem is clear, but maybe too clear The cure equals diagnosis

E.g. diagnosis: inequality cure: more

equality But how to get there? What can ‘the law’ do?


What if human rights do not work?

What if human rights do not work? What if an appeal to humanitarianism and

equality does not work? What if a common EU approach does not work?

Hypothesis: human rights, humanitrianism, equality and a common approach may be part of the problem


Preliminary remark: chaos and crisis from what/whose perspective?

Refugees, Europe, EU, Member States, cities,… When did it become a European crisis? Failure to protect or failure to control? Failure to protect or failure to reach consensus?

‘Another crisis’: incapacity to provide protection through law


Agenda





5. What to do?


Exploration of historical arrangements

Exile Church asylum Refuge for religious minorities




Exile in Roman republic and Renaissance Italian City states

- Context criminal proceedings (with mostly political motives)- way out (legal through interdictio ignis et aquae); and in Italian

city States fully legalized in the form of a ‘punishment’- Plurality of jurisdictions – friendly states/cities- Reciprocity- Not a right but sponsorship; there is protection simply because

exiling state has no jurisdiction in the state of exile - Roman exile primarily individuals, but more groups in City

states


Exile was not construed as a benefit but punishment


Asylum


Asylum in Churches and Cities

- Plurality of jurisdictions- Context criminal proceedings- Asylum not immunity from punishment- No individual right to asylum, but violation of church jurisdiction – (cf.

violation of the dignity of the majesty)- Sanction ex-communication: protection procedural- Competition instead of reciprocity- End of protection, when there is no more competition over jurisdiction- Example of protection through city asylum: law protects against law- Basis of protection is jurisdiction not sacredness of the site


Religious refugees


Religious refugees

- Most similarities with the figure of today’s refugee – victim fleeing persecution

- Persecution not prosecution- Reciprocity but no friends- Collective treatment (corresponds with the lack of

legal proceedings)- Protection is not juridical but privileges granted by the

executive powers to protect against local population of receiving state


Historical regimes (asylum and exile)

1 Plurality of jurisdictions

2 Protection indirect – no individual right

3 Trigger is legal prosecution (except collective mechanism for religious refugees)

Protected person often violated the law

Political refugee was a matter of exile4 Refugee not a migration issue

5 Approach mainly individual

6 Reciprocity (for exile)

7 Competition: Offering protection is a sign of jurisdiction

Recap historical arrangements

End of historical arrangements

Centralized modern state New form of government, police (from 17th-18th

century onwards) Migration becomes a matter of governmental

policy (19th century onwards, esp. 20th century) Refugee protection becomes a matter of

migration policy (20th century)


Agenda





5. What to do?


Official logic and ambition of Common European Asylum System: preventing chaos


EU Refugee regime

1 Single jurisdiction; common EU policy2 Right to asylum and its benefits as individual right

3 Trigger is primarily de facto persecution

Refugee is innocent victim; human being (paradoxical protection of high level war criminals)

Political refugee is successor of religious refugee under the collective mechanism

4 Refugee is considered part of migration phenomenon

5 General official approach mainly collective and comprehensive: “efficient management of migration flows”

6 Perceived one way traffic (initially Cold War reciprocity)

7 Refusing protection is a sign of jurisdiction

Historical regimes (asylum and exile) EU Refugee regime

1 Plurality of jurisdictions Single jurisdiction; common EU policy

2 Protection indirect – no individual right Right to asylum and its benefits as individual right

3 Trigger is legal prosecution (except collective mechanism for religious refugees)

Protected person often violated the law

Political refugee was a matter of exile

Trigger is primarily de facto persecution

Refugee is innocent victim; human being (paradoxical protection of high level war criminals)

Political refugee is successor of religious refugee under the collective mechanism

4 Refugee not a migration issue Refugee is considered part of migration phenomenon

5 Approach mainly individual General official approach mainly collective and comprehensive: “efficient management of migration flows”

6 Reciprocity (for exile) Perceived one way traffic (initially Cold War reciprocity)

7 Competition: Offering protection is a sign of jurisdiction

Refusing protection is a sign of jurisdiction


Still, competition over jurisdiction

Important cases ruled by the European Court of Human Rights and the Court of Justice of the EU

MSS; NS; Hirsi

Cases influential for improvement of CEAS Local level: failed asylum seekers and treatment

by local authorities

Public order, not so much human rights


Agenda





5. What to do?


What to do?1. Promote plurality of jurisdictions

Plurality of jurisdiction caters to legal protectionDifferent Member States may have different reasons for admitting different refugeesWhy common/single approach if there are no robust best practices?Why common approach if there is no underlying consensus?By framing it as a European problem, national authorities can hide behind Europe’s failure


So,

We should not so much call for more unity and harmonization of EU refugee law in the name of legal certainty, legal equality and eliminating ‘forum shopping’.

Rather we should explore ways how to maintain and implement competition over jurisdictions between the various actors within the EU framework


What to do?

2. Be careful invoking human rights

In the modern legal mind only rights if truly deservingOnly truly innocent victims/human beingsBut why should only the innocent deserve protection?Still: Human rights do work if actually legal cases are brought to court – then competition over jurisdiction


What to do?

3. Be careful invoking humanitarian reasons

By framing it as a humanitarian problem, the issue is already beyond the law, it is just a matter of mercy and humanity

So we have the legal right to exclude but we just help out

for humanitarian reasons


What to do?

4. Be careful invoking equality and social justice

By suggesting we have to offer refugees a lot of benefits we pave the way for the paternalistic-equality fallacy:

if we let them in we cannot provide them the same level of rights and benefits. In order to prevent second class citizens we do not let them in. Or rather we make it extremely costly to do so


What to do?5. Invoke proportionality

Legal principle: domestic and EU law (very long tradition)

Legitimate goal

Necessary: no least burdensome measure available to

achieve the same goal

The advantages outweigh the burden imposed on the

migrant/refugee/asylum seeker


The question is not (just) whether there is a humanitarian duty to help (nationally or at the EU level), or whether human rights are violated but whether the authorities’ exercise of their right to deny admission is proportionate

No need for desert, true victim, humanitarianism; just a legal subject

If authorities exercise their powers over legal subjects, this should be proportionate

It may urge authorities to seriously consider policy alternatives and empirical research (e.g. presentations Doomernik and Schrover)


A final word on alternatives and empirical evidence (1) Just one particular provision (no entry and stay

without prior authorization) Of a particular act: alien’s act Of a particular functional area of law: migration law Of a particular field of law: administrative law For the rest many other areas of law apply If so, as a matter of law authoritries should better

substantiate individual cases and general policies


A final word on alternatives and empirical evidence (2)

What is missing is a permit, not unlike a building permit, environmental permit

But in these cases: evidence, expert reports on effects

And counter-expertise Not happening in migration and refugee law Compare the size of a dossier on environmnetal law with

migration law

And these are not matters of humanity but simply a question of jurisdiction


Documents

Refugee crisis. Coordinating Chaos [email protected]