EU a force for good? Or a force for self interest?

Andrej Dedic and Mariana Mañón

The development and evolution of the European Union (“EU”) has arisen several tensions specially regarding the relationship between the Member States and the Union. The traditional vision of a national territory as an important element of the state sovereignty was confronted by the new idea of a unified European territory with no traditional boundaries. In this sense, all Member States within this new concept of EU`s territory must respect and guarantee the values and principles that founded the EU such as integration, respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights[1] .

But, what happens when this new concept of EU territorial sovereignty is jeopardized by illegal immigration? Do these values only apply to Europeans and under EU`s territory? In this blogpost, we attempt to analyze the tension between the economic, legal and social stability of the EU and the respect for immigrants` human rights. To approach this tension, we will contrast the theoretical and practical work of the EU`s agency Frontex (as defined below). Specifically, we will look at how national sovereignty and growing right-wing politics affect the practical work of Frontex.

In theory, everything seems so good…

Since 1995, with the abolishment of check controls in the European borders and the creation of a single external border, Member States agreed to cooperate and coordinate to maintain the balance between freedom and security (“Compensatory Measures”).[2]

Regarding the above, the External Borders Practitioners Unit (“Common Unit)was created, being responsible of: i) the common policy on management of external borders, ii) coordinating and controlling operational projects on the ground, iii) ensuring greater convergence between the national policies and, iv) exercising a form of power of inspection.[3] In 2004, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) was created[4] through the Council Regulation 2007/2004 (“the Regulation”) with the objective of supporting and improving the work and effectiveness of the Common Unit.

With regards to fundamental rights, theoretically, Frontex`s performance must observe and respect fundamental rights and the principles recognized in Article 6(2) of the Treaty of the European Union and the Charter of Fundamental Rights of the European Union.[5] In the same sense, in the report “Beyond the Frontiers, Frontex: The First Five Years” the agency reassured its commitment with the protection of fundamental rights:

“Most EU Member States (and Schengen Associated Countries) regularly return illegal immigrants to their home countries. The Frontex Returns Unit has the task of assisting Member States to coordinate their return operations so that they are carried out efficiently and with full respect for the fundamental rights of the individuals concerned.”[6]

It should not be a surprise that the Regulation and the legal discourse adopted by Frontex are based in the respect of fundamental rights as they form part of EU law (and EU`s foundations are based on common values and fundamental rights) and, after all, is a good strategy to legitimize their performance. At the end, what really matters is Frontex`s daily performance and determining case by case if they are protecting immigrants` fundamental rights.

But in reality…

Frontex has increasingly taken the humanitarian discourse to heart, and adopted a humanitarian approach with the current struggle to deal with mass influx of refugees. Humanitarianism can be located in border policing operations in the Atlantic and the Mediterranean, in migrant detention centers across Europe and along the land borders of the EU such as the River Evros and its surrounding borderland (Pallister Wilkins, 2015, p. 54). However, the reality of their work becomes an interesting paradox, at the one side of the spectrum you have this large group of people who are at risk, while at the other spectrum you have the same group of people who are a risk.

Lets deal with the first issue, namely at risk. Large refugee influx brings a humanitarian perspective to the issue, namely that these people are to a large degree risking their lives in order to join the EU and its Member States, this is seen from their perspective as a necessary step to obtain greater life standard that they did not enjoy from wherever they have fled. This has unfortunately resulted in massive illegal immigration in grotesque conditions. Criminal organizations have exploited this socio-political dimension by offering passage to a better life in Europe in exchange for money. What they offer in reality is overcrowded rescue boats whoseconditions are not adequate for their purpose in this context, crossing the Mediterranean sea.

Hence, these people become at risk, which effectively forces the EU to step in as a ‘force for good’, with its ideology being democratic and respectful of human rights. In a nutshell, this would entail, operations to save them, process their requirements to be admitted into the EU, or act upon it within the requirements of fundamental human rights. In other words, in a perfect cosmopolitan world, EU would abide by international law and as protector of fundamental human rights by carrying it out as envisioned by the nature of the European project.

However, the reality shows a different outcome. Amnesty International reported back in 2013 that Italy was conducting serious breaches to fundamental human rights (Amnesty International Report 2013, pp. 137–138). This stretched from actual push back of refugees on the high seas by policing measures (assisted by Frontex), to conditions of the detention centers which fell well below international standards, to bilateral agreements with Libya which gave no consideration to the needs of migrants for international protection. The agreement between Italy and Libya effectively sought to regulate migration flows, ignoring the fact that migrants, refugees and asylum-seekers continued to be at risk of serious human rights abuses there. Libya committed to strengthen its border controls to prevent departures of migrants from its territory, with Italy providing training and equipment to enhance border surveillance. Effective human rights safeguards were absent.

This brings us to the other spectrum of the paradox, namely large influx of refugees perceived as a risk. Practically, Italy is conducting national sovereignty measures that they deem fit for their current national state. The economic crisis have hit them significantly, thus from an economic point of view such a large influx of refugees can be seen as a risk that may destabilize its system. Moreover, the resources and man power in order to effectively deal with such large influx of refugees may be impossible for them. As a result, they have adopted short to medium term policies that goes against the nature of the EU and fundamental human rights, in order to protect themselves.

While Italy may appeal to its economic situation to justify its state policies and its use of Frontex, other EU Member States are increasingly influenced by the surge of right-wing party politics. From their point of view, large influx of refugees threatens the very identify of their western sovereign democracies. This is framed in the discourse of Islam and muslim refugees, and their incompatibility with its national ideology and way of life. The most prominent in this context is no other than Hungary’s Prime Minister Viktor Orbán (pictured below). His rhetorics are alarming to say the least.

“As a state, you have to protect your own borders. I don’t believe in a European solution”

“We do not want to see among us significant minorities that possess different cultural characteristics and background than us. We would like to preserve Hungary as Hungary.”

“If we let everybody in we will destroy Europe.”

“Eighty percent of the immigrants are young men. They resemble an army more than they do asylum-seekers. They are uneducated, the majority of them speak only Arabic.”

Rhetorics is obviously one thing, another is state policies on handling the issue at hand. His decision to build razor wire fencing and placing water cannons at the ready on his borders shifted the debate from how to accommodate the flow of refugees to how to stop it (Waller, 2016). Effectively, he championed with the likes of National Front’s Le Pen, on creating the norm of refugees being a risk. As a result, he tapped into a nationalist surge within EU and advocating to stop and reject the large influx of refugees by any means necessary. This has escalated to the point that the EU spokesman for the anti-immigration party, Kenneth Berth, member of The Danish People’s Party, who got 21 percent of the popular vote in last year’s general election, said on 6th of December 2016:

“The only efficient way is to turn the boats and say: ‘You cannot sail within this national border and if you do, you will either be shot at or be turned around and sailed back,” (Reuters, 2016).

Conclusion:

Phrases like humanitarianism, human rights, fundamental rights or human dignity are the best words commonly used to legitimize a legal discourse. They are used as the highest standards in EU law and in many Member State`s constitution. Apparently, they only have to be there to theoretically build a “modern” legal system. The EU has fought for decades to ensure an effective integration within the Member States, a real social, economic and political community. They have been realizing over the years that, to have a real integration, their community must be based in the respect of fundamental rights to obtain the economic, social and political benefits they aim.

However, when EU institutions and Member States are supposed to respect and guarantee the fundamental rights of non-Europeans, the scenario becomes more complex. The essential question in these cases is whether immigrants are at risk or a risk for the social, economic, political and security stability of the EU and the Member States. In some occasions, it is more important to prevent future and uncertain effects of illegal migration than the real and imminent danger of risking human lives. It seems unreal than the EU development of humanitarianism and fundamental rights has a clear limit, just within the EU external border.

[1] Article 2 Treaty of the European Union.

[2] http://frontex.europa.eu/about-frontex/origin/

[3] http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52002DC0233&from=en Paragraph 28

[4] http://frontex.europa.eu/assets/About_Frontex/frontex_regulation_en.pdf

[5] Whereas 22 of the Regulation.

[6] http://frontex.europa.eu/assets/Publications/General/Beyond_the_Frontiers.pdf page 73.