Leiden Law Blog

Sharing responsibility in times of crisis: Challenges at Europe’s external borders

Posted on by Melanie Fink in Public Law
Sharing responsibility in times of crisis: Challenges at Europe’s external borders

Europe is currently facing the biggest refugee crisis since the Second World War. The sheer number of individuals on the move is overwhelming, as are the human tragedies reported on a daily basis. Whilst in the spring of 2015 attention largely focused on the Central Mediterranean and the rising death toll of individuals trying to cross the Mediterranean in order to reach European shores – according to the International Organization for Migration 2,900 fatalities by the end of September 2015 – public eye in the meantime shifted to the large-scale arrival of Syrian refugees at the Eastern European borders. Austria made headlines when 71 migrants were detected dead in an abandoned truck on 27 August near Parndorf just a week before the photo of Aylan Kurdi, a 3-year-old Syrian boy, lying dead washed up on a Turkish beach became the symbol of the refugee crisis. Between the massive efforts of civil society reaching out to welcome and help arriving refugees, and accumulating reports of mistreatment of migrants by state authorities, Europe is struggling to find appropriate responses.

Responses…

The human tragedies have not only triggered public outcry but also prompted responses at the political level. After more than 800 individuals had died during a single incident in April 2015 when a migrant boat capsized in the Mediterranean, European leaders came together for an emergency summit. They drew up an action plan promising a strengthened European presence at sea, declaring the fight against human smugglers a priority, and announcing increased efforts to prevent irregular migration as well as reinforced internal solidarity and responsibility.

Pledges to fight human smugglers and bulk up external border control were soon followed up upon. To crack down on human smugglers in the Mediterranean, Europe launched the naval operation EUNAVFOR MED – soon to be renamed ‘Operation Sophia’ after the baby girl born on one of the vessels during a rescue mission – with a mandate to undertake systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by human smugglers or traffickers (for a critical discussion see my earlier blog post here). Reinforcing external border controls meant raising the budget of Operation Triton, a border control operation in the Mediterranean coordinated by the ‘EU Borders Agency’ Frontex, to almost 38 Million Euro for 2015, making it the biggest operation ever implemented by the agency. In addition, more funds are channeled to Frontex giving it a budget uplift of more than 50%, reaching 176 Million Euro in 2016. The promise of reinforcing internal solidarity and responsibility proved more difficult to deliver. Whilst the European Commission had already proposed in May the relocation of 40,000 persons and in September an additional 120,000 persons in need of international protection from Italy, Greece and Hungary to other EU member states, negotiations on the precise quotas seemed to stall. Only as thousands of migrants kept walking (railway services were discontinued) from Hungary towards Austria and on to Germany, a compromise was finally forced on reluctant member states on 22 September. These European responses to the refugee crisis are, however, not without challenges.

Strengthening external borders without allocation of accountability…

The idea to strengthen the ‘EU Borders Agency’ Frontex in order to deal with all kinds of challenges that may arise at the EU external borders is certainly not new. Whilst the expansion of joint operation Triton was a reaction to the surge in fatalities in the Mediterranean and the discontinuation of the search and rescue operation Mare Nostrum by the Italian navy, the budget raise for Frontex is meant to more generally ensure solidarity to control the common external borders. This shall in particular be achieved by allowing the agency to increase its capacity to coordinate joint border control and surveillance operations. Simply speaking, in the framework of a joint operation member states and Frontex support another member state by sending additional border guards and equipment to be used for border control.

Whereas this may increase solidarity among member states, it should be accompanied by measures to address the ensuing challenges. A recurring difficulty with respect to joint operations is that in the event of alleged human rights violations, the involved actors frequently blame each other for the infringements. To make sure individuals do not lose their means of redress when operations are conducted jointly, it is therefore important to establish clarity in the allocation of accountability for human rights violations that may be committed during the operations.

Strengthening external borders without internal solutions…

Europe has a peculiar arrangement to handle asylum applications. In order to reduce the risk of ‘asylum shopping’ within the EU, the so-called ‘Dublin-system’ establishes criteria and mechanisms for determining the member state responsible for examining an application. Among those, the rule that allocates responsibility to the state through which the migrant entered the EU irregularly features prominently. In order to facilitate its application, the ‘Eurodac system’ provides a database for comparing fingerprints of irregular migrants taken upon entry. It will not come as a surprise that this arrangement is quite undesired by the states at the external borders, who accordingly handle the bulk of refugees arriving, whilst others, like the Austrian Foreign Minister, lament that in the wake of the refugee crisis ‘Dublin does not work anymore’. Clearly, there seems to be a lack of solidarity and sharing of responsibility between EU member states, an observation which is only further highlighted by the struggles surrounding the emergency-driven relocation schemes.

In the absence of legal means of immigration to Europe (see also the recent post by Mark Klaassen), fighting smugglers and reinforcing external border controls may not deter individuals from trying to reach Europe but will more likely push them to use alternative routes, potentially longer and even riskier, or ‘trap’ them in unsafe states at Europe’s external borders. In this light, contrary to protecting individuals at risk, the focus on strengthening external borders paired with the lack of internal solutions in Europe probably exacerbates or prolongs their perils.

The way forward…

This year we are celebrating the 30 year anniversary of the Schengen Agreement that eventually led to the abolishment of internal border controls among 26 states comprising more than 400 million persons. According to Dimitris Avramopoulos, the EU Commissioner for Migration, Home Affairs and Citizenship, the creation of the Schengen area is one of the greatest achievements of the EU. If we want to preserve this achievement, we may have to rethink some of the choices made in the area of EU immigration and asylum policy and replace the responsibility-shifting trend with a responsibility-sharing spirit, including transparency in accountability arrangements and genuine solidarity among receiving states.

This post will appear in GLOBAL VIEW, the journal of the Austrian Academic Forum for Foreign Affairs and the Austrian Foreign Policy and United Nations Association.

PIcture: 
Caption: ‘Lichtermeer’ at Voices for Refugees, a solidarity concert for refugees at Heldenplatz, Vienna on 3 October 2015
Attribution: By Gerald Henzinger (enlumen.net) (private work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

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