Migration Law, Policy and Human Rights

The Impact of Crisis in Europe

Rachael Dickson

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000570700
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Migration is one of the greatest societal challenges of our time. It has many facets, from mass movements to escape war, climate, or human rights abuses to the search for economic opportunity and prosperity. Illicit industries facilitate border crossings at the expense of safety, and governments face problems of processing and integrating new arrivals. These challenges have had a profound impact in Europe, calling into question central values of solidarity and human rights. This book analyses the law and policy of migration in the European Union (EU) and its relationship to understandings of the EU as an international human rights actor. It examines the role crisis plays in determining the priorities of migration policy and the impact political exigencies have on the rights of migrants. This book problematises the EU Area of Freedom, Security, and Justice as a 'home.' Taking a governmentality approach to critique discourse, the idea of a holistic approach is deconstructed to explore notions of wellness, resilience, responsibilisation and externalisaton. The EU's pursuit of a holistic approach to managing migration in crisis indicates problems with EU solidarity, and the tactics employed to bring the crisis under control reveal security concerns that provoke questions about the EU as an international human rights actor. Both this framework for analysis and the empirical findings make a significant contribution to how the migration crisis can be theorised using adaptable conceptual tools. Under this form of governance, migration becomes a phenomenon to be treated so that its symptoms are ameliorated. This book will be of interest to students and scholars of the EU, migration, and human rights as well as policymakers, commentators, and activists in these areas.

1 Introduction Europe’s Migration Crisis, a ‘Problem of Government’ for the EU

DOI: 10.4324/9780429291524-1

In 2015, the year the research for this book began, the United Nations High Commissioner for Refugees (UNHCR) reported that 1,000,573 migrants and refugees travelled by sea to arrive at the borders of Europe.¹ This figure was five times the number reported in the previous year. The International Organisation for Migration (IOM) reported Greece received 821,008 arrivals to its shores.² The figure for Italy was 150,317.³ Compared to other states along the EU southern border, Greece and Italy were dealing with a significant increase in numbers. Spain, for example, received a substantially lower number of 3,845 arrivals. Men, women, children, babies, families, elderly persons, and disabled persons made perilous journeys in inadequate boats, often without life jackets, to reach safety and security in Europe. IOM estimates 3,771 migrants and refugees lost their lives making this journey.⁴ The global estimate is 5,350.⁵ I am from Northern Ireland where a 32-year conflict resulted in 3,532 deaths.⁶ The situation was grave. April 2015 was the deadliest month when an estimated 800 people died in a singular incident after an overcrowded vessel capsized.⁷ Only 28 people on board survived. Yet the story at sea was only one facet of the situation. Arrivals by land were also substantial. Bulgaria, for example, received 29,959 arrivals in 2015.⁸ It can be appreciated how such increases in arrivals could put administrative and resourcing capacities under pressure. The Italian prime minister at the time, Matteo Renzi, appealed to the European Union (EU) and its Member States (MS) to show solidarity with those along the border and share responsibility for the arrivals. He implored that, ‘Europe should be a beacon of civilisation, not a wall of fear.’⁹

Increased migratory movement and the question of how arrival states ought to respond to such movements, however, was not a new question in 2015. In a 1979 interview, when asked to comment on the situation of refugees fleeing Vietnam and Cambodia, French thinker and writer Michel Foucault did not provide the interviewer with a simple solution. Rather, Foucault noted that such migrations were symptoms of historical developments. He somewhat ominously predicted that so long as the conditions of ‘us-and-them’ remain the foundations of global politics, mass displacement will endure as ‘not just a sequel of the past, but a presage of the future.’¹⁰ The situation faced by Europe in 2015, and in subsequent years since, was perhaps this warning reaching prominence again. Renzi’s calls for the EU to show solidarity and take action to demonstrate ‘the values it believes in and stands for because Europe isn’t a bundle of economic ties, it’s a community of people, a shared destiny, and ideals’ and if this ‘common purpose is diminished, we lose our European identity’ are perhaps evidence of this.¹¹ This book examines how the EU responded to the events of 2015 and how this appeal for solidarity was answered. Central to this endeavour is the role of rights, the place of the migrant as a bearer of rights, and the impact the EU’s approach has had on its identity as an international human rights actor.

There are two key points of departure. The first is a desire to further existing understandings of the EU as an international human rights actor. Having long been a student of the EU, I became interested in the development of the EU’s multi-faceted identities. I had a particular interest in how these identities are mobilised to pursue and promote the overall goal of stability and economic prosperity in Europe. For example, human rights conditionality became a central aspect of enlargement policy, demonstrating the governmental utility of rights in compelling certain actions while constraining others. Further, I was intrigued as to how rights could be deployed in packaging policies so that they were more palatable for various stakeholders. Overall, I became frustrated with and uninspired by the dominant theoretical frameworks used by European Studies to explain these phenomena. To me, academic literature failed to provide insight into how law and policy made actionable the values that the EU professed to stand for.

The second jumping-off point comes from an interest in hospitals and the activities that occur there that became prominent in the early days of the research presented here. A constructivist outlook that considers that humans are products of their surroundings inspires me as a researcher. As a result, I believe our encounters with the actual operation of law and policy in reality reveal the complex legal and political processes of the world. As a fresh and starry-eyed PhD student, I did not envisage the extent to which my own life would impact the theoretical and methodological insights I would subsequently deploy. In a set of unforeseen circumstances, I spent a lot of time in hospitals. As hospitals are an environment not entirely alien to me, I became drawn to how medical problems were treated and became to reflect on how medical treatment, and in particular the specific techniques and processes of medicine, provides an analogy for how broader societal problems are governed. I was intrigued as to how problems and difficulties, symptoms and flare-ups, were treated and managed and how treatment outcomes and realities are expected to change as illnesses progress. Watching the events of the migration crisis unfold in the news media, these thoughts ruminated.

My interpretation and analysis of the events of 2015 are that the reported boat disasters were not isolated incidents. Instead, these tragic events were symptoms, or at least acknowledgements, of a deeper problem. As calls from states most affected for solidarity and action at the EU level mounted, I was intrigued as to how the EU would respond and how it would envisage where the solution to this problem lay. It appeared that the humanitarian disaster of the sinking boat and stranded migrant presented deeper challenges for the EU, challenges that extended beyond mobilising resources, equipment, and funds. The situation was acute, demanding immediate governmental action, and the narrative of the EU’s response suggested rights were part of the solution. Other parts were the consolidation of migration policy at the EU level and the further harmonising and integrating of resources. I address the specific challenges of this approach at different points throughout the book. At this point, I want to highlight the way in which, from the very outset of my research, it was clear that the EU’s response to the so-called migration crisis from 2015 onwards drew on the EU’s identity as an international human rights actor. This identity positions the EU as an entity that respects, protects, and promotes human rights in the international system. Yet the realities faced by those men, women, and children who encounter those policies belie commitment to these values.

The remainder of this introductory chapter further details the construction of the European migration crisis in 2015 and defines the key terms deployed throughout. I establish the scope of the work contained in these pages, the aims and objectives I portend to fulfil, and the questions I will answer. A summary of each chapter is provided and asserts the importance of researching different perspectives and broadening understandings of the EU. Encountering the aforementioned numbers in isolation, one could interpret them as alarming and indicative in themselves of a crisis scenario. Yet statistics are relevant and the coverage of events in 2015 was light on the historical development of migration cooperation, harmonisation, and integration in the EU.

1.1 Construction of a Crisis

A depiction of floating bodies in the configuration of the EU flag, attributed to the eminent street artist and social commentator Banksy, visually encapsulates the wider story motivating this book.¹² The research and arguments advanced within these pages depart from a position that the European migration crisis tells us something about the nature of the EU itself, particularly as an international human rights actor. Observing the so-called crisis unfold, I was struck by the focus on the EU as the bearer of responsibility for its resolution and intrigued about how such a response would unfold. My scholastic background is human rights and EU studies, which explains the focus on these issues rather than other areas of inquiry within the phenomenon. Specifically, I was interested in practical questions of how any EU response would practically work to de-escalate the crisis and affect functional understandings of the EU in its governance of rights.

Human rights are not necessarily the first facet of identity that comes to mind when thinking about the EU; its economic or security profiles are perhaps much more prominent. In the years since 2017, Brexit has arguably even overshadowed these. Yet after the ratification of the Lisbon Treaty, the European Union Charter of Fundamental Rights (EUCFR) became legally binding and elevated to the same status as the EU’s core functional Treaties, the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). Article 2 of the former provides that ‘the Union is based on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.’¹³ Further, Article 6 TEU provides that ‘the rights, freedoms and principles set out in the [EUCFR] […] shall have the same value as the Treaties.’¹⁴ In terms of external action, Article 21 TEU contains the principles that inspire EU activities, including the universality and indivisibility of human rights, and solidarity.¹⁵ Article 205 of the TFEU determines that the EU’s international actions are to be guided by the principles laid down in Article 21 TEU.¹⁶ Thus, although the EU’s identity as an international human rights actor is developing, incrementally, attention to these matters is increasing. Such attention further piqued as the EU made moves to mainstream rights in all its policies, and when it was awarded the Nobel Peace Prize in 2012.¹⁷

The book investigates how the measures proposed and adopted by the EU could produce, and co-opt, narratives and behaviours that unsettle the core beliefs about human rights that are assumed to be foundational to the EU project and the EU’s identity as an international human rights actor. It challenges dominant theoretical paradigms of European integration theory, international relations theory, and positions on multi-level governance in the academic literature on the EU. The focus of this endeavour is specifically on the EU’s identity as an international human rights actor.¹⁸ EU studies, as a discipline, recognises the need to adopt more critical approaches in order to emancipate the field from its reliance on, and perpetuation of, the EU’s own narratives.¹⁹ Critical approaches are prevalent and dynamic in other areas of law but remain underdeveloped in studies of the EU. Such work can be emancipatory through a focus on understanding the detailed and precise elements of governance and critiquing the narratives and actions these produce.²⁰ The book initiates the process of emancipating various EU subjects towards whom EU governance is directed by challenging how they are understood in practice and by other scholars. A more discursive approach to understanding the EU is pursued which enables exploration of alternative truths and the presentation of new plausible realities.

There are four threads to the framework of analysis. I use the word ‘thread’ because of how they interweave, cross, and entangle throughout the areas discussed and are analysed in various ways. Elements of intersectionality are inherent in the book; the discussion cuts across issues of gender, nationality, disability, socio-economic status, sexuality, and race.²¹ Many interesting, important, and tempting avenues to explore appeared during the period in which the research was conducted, but it was impossible to pursue them all. It is my belief, however, that this book provides a starting point for much more inquiry and thinking in the future – for both others and myself. The four threads are (1) crisis, (2) migration, (3) rights, and (4) solidarity. Each thread raises its own problems for EU governance, and each encounters the other as solutions to these problems that are formed and pursued. In combination, these threads develop an understanding of the EU that is encapsulated by governmentality.

1.2 Definition of Terms

An important task is to define the key terms that are used repeatedly throughout the book. As the book makes arguments about the importance of specificity and considered language, it is vital that the precise meaning of these terms is clarified at the outset. The key terms are ‘migrant,’ ‘EU identity,’ ‘crisis,’ ‘governmentality,’ ‘domopolitics,’ and ‘holistic’ or ‘holism.’ Some of these are terms familiar in the common vernacular; others are specific to academic vocabulary, but regardless of category, all are capable of carrying different meanings depending on the context in which they are used. My objective in defining how the terms are used in this book is not to dissect their utility or acceptability or even the multiplicity of understandings that exist. Instead, I provide an outline of the understanding I attach to the word so that it can be useful to advancing the objectives of the book.

First, the term ‘migrant’ has been the subject of fiery debate in the press and amongst non-governmental organisations. Questions have arisen regarding the appropriateness of the term to describe the events of 2015. No universally accepted definition or agreed usage of the word ‘migrant’ exists.²² Some have argued that is more accurate to use ‘refugee’ as a moniker for those persons arriving in Europe. Within acad...