Ever since the adoption of the Magna Carta and long before acquiring their Westphalian sovereignty, European nations have strived to embed human rights into their social and legal orders. It nevertheless took the savagery of World War II to put human rights firmly on the European legal agenda. Faithful to the expectations of a tradition spanning centuries, both the European Union and its member-states have built an advanced human rights protection framework into their primary legal domains.
Given this consistency in the development of laws promoting human rights, it is deplorable to witness the exponential failure of the EU to deploy a comprehensive political solution that effectively tackles the refugee crisis Europe is facing. EU efforts to address either the causes or effects of this crisis have been largely ineffective and contaminated by various political agendas. The Union has passively observed the transformation of the Mediterranean into a vast graveyard, doing little to allow those refugees arriving on European shores safe passage into Europe and increasingly looking to the militarization of borders as a stopgap solution.
One of the reasons for this developing failure is the structure of the legal framework for the protection of refugees. The primary international legal instrument on refugee protection is the 1951 Convention and its 1967 Protocol Relating to the Status of Refugees. Whilst the 1951 Convention establishes the definition of the term “refugee” and the principle of non-refoulement (which broadly prevents states from returning a refugee or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened), it does not direct how state parties determine whether an individual meets the definition of a refugee. Instead, the handling of asylum claims and refugee status determinations is left to each state party to develop. As a result, there is no real consistent or common approach in the implementation of immigration policy across member-states; instead we are witnessing a race to the bottom where member-states are competing to build impenetrable borders.
The EU appeared to be a step ahead in the legislative protection of refugees. Whereas the 1951 Convention provides for the right to asylum for those fleeing prosecution based on race, religious belief, nationality, political affiliation or membership of a particular social group, the EU extended such protection to persons facing a real risk of suffering serious harm, a threat to civilian life or indiscriminate violence in situations of armed conflict. What Union legislators could not have foreseen is the sheer number of refugees that a crisis of a regional scale would generate. As such, despite the well-intended extension of the protection afforded to refugees within the bloc’s legal order, the situation on the ground has demolished any prospect that the existing framework could sustainably address the scale of the current crisis. Disruption caused by war, civil strife and natural disasters has swollen the numbers of those seeking to enter Europe, and the absence of processes to enable the EU to rapidly distinguish between those who meet the definition of refugee from those that do not has exacerbated an already intractable problem.
An unintended consequence of the legal engineering of EU rules regulating asylum claims is the excessive exposure of Greece and Italy to potential asylum seekers attempting to enter Europe. There are barely any lawful channels for refugees to reach Europe (if any at all) and the sheer volume of refugees has overwhelmed the structures in place to process applications. In order to be able to lodge an asylum claim refugees must first reach EU shores. Border crossing is illegal unless the asylum seeker is in possession of a visa, leaving refugees no option but to to seek alternative avenues using people smugglers and traffickers at extraordinary personal risk. While a solution that seeks to address the elimination of smuggling and trafficking is important, an approach that focuses on exclusively targeting smugglers may have the inadvertent consequence of burying these processes further underground, making them even more dangerous and refugees even more vulnerable to exploitation from traffickers.
European leaders are to differing degrees consumed by efforts to elude their obligations to make sure refugees are treated the same as their own citizens and have fallen short of the human rights standards the continent has championed. Brussels has failed to incorporate into the EU-Turkey Agreement an effective monitoring of Turkey’s undertakings regarding the treatment of refugees. Turkey should have been required to apply the 1951 Convention to all refugees as a condition of the deal; failure to do so has resulted in the EU-Turkey agreement being fundamentally legally flawed and arguably unenforceable. That migration policy has become a bartering chip in a political game is a sign of more troubling times to come. In the weeks since the EU-Turkey agreement was signed, international NGOs such as Amnesty International have documented instances of refugees being denied entry into Turkey at the Syrian border, being shot at by security forces and forcibly returned to their country of origin in what Amnesty described as a “historic blow to human rights.”
The other side of this discussion appears equally dark, as EU leaders are not merely up against a humanitarian crisis but also face the rise of Islamophobia within their own societies. The EU-28 received over 1.2 million new asylum claims in 2015, more than double the number of asylum claims in 2014 (almost 563,000) with one in three first-time asylum applicants in the EU being minors. Security concerns over the penetration of refugee inflows by extremists cannot be adequately addressed until a full-fledged solution for management of the massive numbers of arrivals into Europe is in place. The latent effect of this failure has been to encourage public indifference, breed ignorance and systematically dehumanize these vulnerable groups. Fanned by political media fanfare, the dialogue on immigration has been inextricably linked to words such as “violence,” “disease” and “threat” and is creating a xenophobia that sits so uncomfortably with modern European ideals.
That EU leaders are struggling to react to these events is the direct result of earlier failures. The bloc does not seem to have grasped the implications of the gradual withdrawal of the US from its former role as world policeman. Consequently, the EU has been dramatically slow to realize its interests in stabilizing the situation in Syria and in dealing with Islamic radicalism. Nor has the Union sufficiently escalated the fight against migrant smugglers and traffickers. The weak political commitment on both the EU and national levels to adequately address these issues reflects a broader lack of concern for the safety and well-being of migrants and asylum seekers.
Issues about the bloc’s handling of the refugee crisis are not confined to the conceptual and operative adequacy of the human rights legal framework in place. The abandonment of myriad souls in a spiral of death and misery as a direct consequence of the EU’s unwillingness or inability to resolve this crisis through political means belies deeper issues. Leaders at the helm of the European Union – themselves human beings after all – and the EU’s hegemonic member-states are proving themselves devoid of empathy toward their fellow human beings desperate enough to risk all to reach Europe. It is unfortunately the absence of a long-term vision for the future of Europe, signs of which have become apparent in different contexts over the past decade, which is the root cause giving rise to the symptoms frustrating the European Project.
In dealing with the refugee crisis, we Europeans are confronting our own identity. Our values and traditions are called upon to collectively and individually affirm our commitment to human rights. The EU in particular, the result of decades of political discourse, is now facing the dilemma of affirming the imperative that universal values which are part of the DNA of all Europeans are applicable to all human beings, irrespective of legal status. Failure to so affirm will result in the refugee humanitarian crisis dismantling the human rights achievements of the European Project.
Shortsighted political agendas must not be allowed to diminish the European Union. The unprecedented failure of the EU and its member-states to take action to prevent loss of life and uphold European values poses a risk to the very existence of the Union itself. The refugee crisis has gruesomely unmasked a vacuum at the heart of civilized society which transcends the ethical and legal angles of any human rights debate. As the crisis unfolds it becomes increasingly evident that protection of the human being, her life and her dignity, is not at the forefront of our European civilization. If only our leaders were to realize that it is not so much the physical borders of Europe that are at risk but rather its ethical and moral boundaries.
*Christina McCollum is a solicitor praciticing in England and Wales. Anastasios Antoniou is an advocate based in Cyprus.