Again, why restoring EU asylum and migration policies back to a human rights legal basis is intrinsically linked to EU security and collective defense.
Sweden is taking over the presidency of the European Council this month, and their statement of priorities for the Council’s agenda includes both migration and security. I hope that for at least some of the parties in the coalition government in Sweden the intrinsic links betweeen asylum and security are obvious, but the fact that the coalition now includes the far-right Kremlin-allied Sweden Democrats is worrying, and the inherent links between asylum and migration policies and collective defense policies against the Kremlin’s global hybrid warfare strategy may not be so obvious to everyone, so I decided to explain it again:
The link between EU fundamental values and principles (Treaty on the Functioning of the EU Art.2.1) and migration policy is this -
According to the European legal costitutional treaties post-WW2, the nature of human rights is that they exist and precede state authority or legitimacy, and state legitimacy derives from the practices of human rights, not the other way around. The jargon is that human rights are recognised and declared, not ‘granted’, meaning that the legal provisions are after-the-fact. Likewise in the Qualification Directive 2011, which sets the eligibility criteria for asylum across the EU, it’s stated that recognition of Refugee Status is a ‘declarative act’, not a grant. The general principle is most clearly stated in German Basic Law Art.1 — the purpose of all state authority is to practically ensure respect for inherent human dignity. Human dignity is a natural fact preceding recognition of it or social conventions for it, as explained naturalistically by Levinas* and expressed symbolically in the traditional idea of Imago Dei. The European Convention on Human Rights Preamble adds another bit more clearly — justice is inherently by nature an indivisible common good. It is impossible to have more justice for a partial “us” and less for “them” — that really means less justice for everyone.
(*In Totality and Infinity: an essay on the nature of exteriority, 1961, which is a naturalistic defense of the (originally religious) humanist first principle of inherent human dignity, via a philosophical phenomenological analysis of the nature of interpersonal communications. If you only have time to read a short section, I recommend the section On Murder, which tests his theory to its breaking point to show that it is still true, and corresponds to how he came up with it, from his lived experience as a Holocaust survivor.)
Practically, when we degrade human rights practices for refugees and other migrants who arrive by irregular means, it actually degrades the practices of rule of law, legal rationality, the order of precedence of legal provisions, from fundamental and inalienable human rights through to derived procedural rights and administrative laws which properly exist in order to ensure procedural rights consistent with fundamental rights, and that inevitably ultimately affects everyone, even those who would prefer populist in-group/ out-group dynamics and to scapegoat refugees who arrive irregularly for the corruption and incompetence of their chosen political leaders. It’s become normalized even for mainstream politicians to rhetorically erode the difference between eligibility and admissibility, and to talk about extraterritorial refoulement as if territoriality made any difference legally, to talk about that as if it’s a policy against human trafficking, altho it’s known to actually increase human trafficking by increasing demand for facilitation of irregular entrance, which refugees often can’t know until too late is sometimes actually a trafficking situation, and by decreasing safe and legal alternatives, repeating false claims til poorly informed people believe them and blatant doublespeak which they must know are lies, because otherwise they would expose the system of policies they have consented to as fundamentally untruthful and unlawful.
The EU since 2016 has effectively chosen to go with the political agenda on migration and asylum of the populist-nationalist movement which was then led by Viktor Orban. It’s now become even more obvious that Orban is a proxy for Putin. And the whole populist-nationalist movement was partly the results of a Kremlin influence operation, coordinating all their political proxies in Europe and using massive manipulation tactics on social media, to use the mass influx of refugees, which they caused mainly by bombing Aleppo and driving out 90% of the population, as material for their propaganda to gain support for their populist rhetoric, which is not really a separate movement but really a recruitment rhetorical strategy for fascists.
Why the EuCo and EC chose the system of policies of commissioning (extraterritorial) refoulement mostly by third-party agents outside of EU territorial jurisdiction, as if territoriality made any difference to their legal responisibilities, and the measures designed to degrade reception conditions and procedural rights in order to function as collective or vicarious punitive deterrents, was because they calculated that the populist-nationalist movement’s voters were more likely to be swing voters or citizens who don’t usually turn-out to vote and hence more likely to swing elections than the 2x bigger Refugees Welcome movement then, who are more likely to be regular voters for the mainstream center to centre-left parties.
That strategy hasn’t even worked on its own terms — compromising and attempting to appease the populist-nationalist movement hasn’t decreased their support base but normalized it and brought it more into the mainstream, which has iteratively moved the middle point towards the far-right. The strategy to deter refugees by forcibly returning them to Turkey on the false pretext that it is a ‘Safe Third Country’, altho none of the legal criteria for that designation are generally factually met, has not worked, because despite multiple measures to bias the appeals procedures, even biased courts have not been able to find a factual basis for rejecting appeals on admissibility, so only 0.06% of refugees arriving irregularly have been returned to Turkey involuntarily on admissibility grounds. The deliberate imposition of delays and unfair procedures as a deterrent has worked more, but the deterrence factor is relative to how hopeless and terrible conditions are for refugees in Turkey, which the policies of commissioning extraterritorial refoulement by former-transit countries to prevent refugees even reaching the EU frontier to declare their asylum claims, the de facto arbitrary detention, and exemplifying hostility to refugees as a norm, have all effectively increased the hopelessness and lack of safety for refugees in Turkey, so overall the set of policies have not even worked on their own terms, and their terms were terrible to start with.
Withdrawing the international coastguard mission Mare Nostrum and falsely criminalizing the civil marine rescue organisations in order to increase deaths by drowning of refugees attempting to enter irregularly, as a deterrent to the rest, really constitutes a Crime against humanity, under articles 7(1)b, 7(1)i and 7(1)k of the Statute of the International Criminal Court*. The EU should have its Nobel Peace Prize withdrawn and the individual politicians who chose these policies of deliberately creating conditions calculated to bring about the destruction of part of a civilian population, by mass drowning and commissioning deadly border violence on land, in order to deter the rest, should be criminally prosecuted. The sentence for politically motivated mass murder should be life imprisonment.
Refugees continue to attempt to enter irregularly because conditions for them in the former transit countries which the EU has commissioned to carry out extraterritorial refoulement in have become more deadly and hopeless, and simultaneously there are almost no safe and legal regular means to enter the EU now, only for token numbers as a PR exercise.
It may not be so obvious if you haven’t specialized in following the issues since 2015, but if you look closely along the whole timeline since then this is the reality. So correcting EU asylum and migration policies back to consistency with EU fundamental values and principles and the founding constitutional and human rights legal treaties is intrinsically linked to restoring and restrengthening the basis of moral cohesion in the EU and that is inherently linked to security and mutual collective self-defence against the Kremlin’s hybrid warfare strategy.
Again, the populist-nationalist rhetoric against refugees which the European Council and Commission effectively chose to side with against the Refugees Welcome movement, despite the latter being a 2x bigger sociopolitical movement of EU voters and consistent with the values and principles of EU constitutional law, was part of a Kremlin influence operation, and part of their whole global hybrid warfare strategy to divide and conquer the international democratic order and conserve space and power for the global petrolo-oligarchic kleptocratic authoritarian network in the globalizing public sphere due to internet technologies spreading into their territory. If EU leaders have very belatedly woken up to that reality, it is long overdue to undo their strategic errors in 2016 and since then.
Whether you care about refugees or not, you should care about how the issue has been instrumentalized to undermine EU cohesion and security, to leverage it as a cleavage issue to increase divisions and increase their potential to manipulate EU policy-making across all issues, including on collective defense and constructing a coherent strategy against Kremlin influence operations and information-psychological warfare. It should be a top priority for the EU to return to the fundamentals of EU unity by restoring the human rights based legality of asylum and migration policies, even if it’s done partly for selfish / nationalist defensive motives.
Everything post-2016 about asylum and migration should be assumed to be corrupt and set aside, not compromised with or only relatively or incrementally improved upon. The post-March 2016 system of policies against refugees is fundamentally wrong and should be abolished. The European Parliament’s March 2016 report on policy recommendations to deal with the mass influx then* is an almost perfect basis to re-start from. The only problem in it is the general negative presumption by nationalities in the Relocation procedure and that being permanent not just temporary, which is a disproportionate and unnecessary discrimination, hence irrational and not fit to stand as law. The Relocation procedure was an inappropriate compromise to avoid facing the confrontation with the populist-nationalist controlled governments then over their states’ legal treaty commitments to the principle of shared responsibility (TFEU Art. 78.3) and its implementation in the Temporary Protection Directive.
*https://www.europarl.europa.eu/committees/en/product/product-details/20151019CDT00421
