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Refugee crisis. Coordinating Chaos

b.schotel1@uva.nl. Refugee crisis. Coordinating Chaos. Agenda. 1. The chaos: where does it come from? 2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality 3. Protection of refugees in the past: exile and asylum

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Refugee crisis. Coordinating Chaos

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  1. b.schotel1@uva.nl Refugee crisis. Coordinating Chaos

  2. Agenda 1. The chaos: where does it come from? 2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality 3. Protection of refugees in the past: exile and asylum 4. Comparison with the Common European Asylum System 5. What to do? Studium Generale B. Schotel

  3. Agenda 1. The chaos: where does it come from? 2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality 3. Protection of refugees in the past: exile and asylum 4. Comparison with the Common European Asylum System 5. What to do? Studium Generale B. Schotel

  4. Legal framework allowing ‘chaos’ • Since 1997 Treaty of Amsterdam roll out of Common European Asylum System • Ratio: Geneva Convention, internal free movement, refugee crisis ex Yougoslavia, refugees in orbit • Regulations and Directives • Implemented and applied by Member States • Checked by EU Commission and CJEU • And ECtHR (ECHR) Studium Generale B. Schotel

  5. Administrative and jurisdictional framework • Members States do the work • Member States determine whether refugees qualify • Standards of procedures, and protection differ (because Directive) • Still unity and uniformity are presumed: Dublin Regulation • Very important: constitutional framework of each Member State fragmented • E.g. City level competent for public order • Lander/Community level competent for education; social benefits Studium Generale B. Schotel

  6. Consequence: ‘chaos’ Studium Generale B. Schotel

  7. Agenda 1. The chaos: where does it come from? 2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality 3. Protection of refugees in the past: exile and asylum 4. Comparison with the Common European Asylum System 5. What to do? Studium Generale B. Schotel

  8. Link to Doomernik and Schrover • Migration perennial and global phenomenon • Many drivers to migrate • Many reasons to include and exclude migrants • Today’s ‘crisis’ not necessarily worse than previous experiences • Europe only taking up a small amount of the burden • Framing: it’s all in the eye of the beholder Studium Generale B. Schotel

  9. Dominant frame for understanding and criticizing the ‘chaos’ • Dominant frames • Sovereignty,humanity, human rights, humanitarianism, equality, common approach • Focus this evening on the ‘goodguys’ frames: humanity, equalityand common/universal approach Studium Generale B. Schotel

  10. Benevolent frame may be inadequate • The problem is clear, but maybe too clear • The cure equals diagnosis • E.g. diagnosis: inequality  cure: more equality • But how to get there? What can ‘the law’ do? Studium Generale B. Schotel

  11. What if human rights do not work? • What if human rights do not work? • What if an appeal to humanitarianism and equality does not work? • What if a common EU approach does not work? • Hypothesis: human rights, humanitrianism, equality and a common approach may be part of the problem Studium Generale B. Schotel

  12. Preliminary remark: chaos and crisis from what/whose perspective? • Refugees, Europe, EU, Member States, cities,… • When did it become a European crisis? • Failure to protect or failure to control? • Failure to protect or failure to reach consensus? • ‘Another crisis’: incapacity to provide protection through law Studium Generale B. Schotel

  13. Agenda 1. The chaos: where does it come from? 2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality 3. Protection of refugees in the past: exile and asylum 4. Comparison with the Common European Asylum System 5. What to do? Studium Generale B. Schotel

  14. Exploration of historical arrangements • Exile • Church asylum • Refuge for religious minorities Studium Generale B. Schotel

  15. Studium Generale B. Schotel

  16. Exile in Roman republic and Renaissance Italian City states • Context criminal proceedings (with mostly political motives) • way out (legal through interdictio ignis et aquae); and in Italian city States fully legalized in the form of a ‘punishment’ • Plurality of jurisdictions – friendly states/cities • Reciprocity • Not a right but sponsorship; there is protection simply because exiling state has no jurisdiction in the state of exile • Roman exile primarily individuals, but more groups in City states Studium Generale B. Schotel

  17. Exile was not construed as a benefit but punishment Studium Generale B. Schotel

  18. Asylum Studium Generale B. Schotel

  19. Asylum in Churches and Cities • Plurality of jurisdictions • Context criminal proceedings • Asylum not immunity from punishment • No individual right to asylum, but violation of church jurisdiction – (cf. violation of the dignity of the majesty) • Sanction ex-communication: protection procedural • Competition instead of reciprocity • End of protection, when there is no more competition over jurisdiction • Example of protection through city asylum: law protects against law • Basis of protection is jurisdiction not sacredness of the site Studium Generale B. Schotel

  20. Religious refugees Studium Generale B. Schotel

  21. Religious refugees • Most similarities with the figure of today’s refugee – victim fleeing persecution • Persecution not prosecution • Reciprocity but no friends • Collective treatment (corresponds with the lack of legal proceedings) • Protection is not juridical but privileges granted by the executive powers to protect against local population of receiving state Studium Generale B. Schotel

  22. Recap historical arrangements Studium Generale B. Schotel

  23. End of historical arrangements • Centralized modern state • New form of government, police (from 17th-18th century onwards) • Migration becomes a matter of governmental policy (19th century onwards, esp. 20th century) • Refugee protection becomes a matter of migration policy (20th century) Studium Generale B. Schotel

  24. Agenda 1. The chaos: where does it come from? 2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality 3. Protection of refugees in the past: exile and asylum 4. Comparison with the Common European Asylum System 5. What to do? Studium Generale B. Schotel

  25. Official logic and ambition of Common European Asylum System: preventing chaos Studium Generale B. Schotel

  26. Studium Generale B. Schotel

  27. Still, competition over jurisdiction • Important cases ruled by the European Court of Human Rights and the Court of Justice of the EU • MSS; NS; Hirsi • Cases influential for improvement of CEAS • Local level: failed asylum seekers and treatment by local authorities • Public order, not so much human rights Studium Generale B. Schotel

  28. Agenda 1. The chaos: where does it come from? 2. The dominant frame for criticizing chaos: human rights, humanitarianism and equality 3. Protection of refugees in the past: exile and asylum 4. Comparison with the Common European Asylum System 5. What to do? Studium Generale B. Schotel

  29. What to do? 1. Promoteplurality of jurisdictions • Plurality of jurisdiction caters to legal protection • Different Member States may have different reasons for admitting different refugees • Why common/single approach if there are no robust best practices? • Why common approach if there is no underlying consensus? • Byframingit as a European problem, nationalauthoritiescanhidebehindEurope’s failure Studium Generale B. Schotel

  30. So, We should not so much call for more unity and harmonization of EU refugee law in the name of legal certainty, legal equality and eliminating ‘forum shopping’. Rather we should explore ways how to maintain and implement competition over jurisdictions between the various actors within the EU framework Studium Generale B. Schotel

  31. What to do? 2. Be carefulinvokinghuman rights • In the modern legal mind onlyrightsiftrulydeserving • Onlytrulyinnocent victims/human beings • But whyshouldonlythe innocent deserveprotection? • Still: Human rights do workifactuallylegal cases are broughtto court – thencompetition over jurisdiction Studium Generale B. Schotel

  32. What to do? 3. Be carefulinvokinghumanitarianreasons • Byframingit as a humanitarianproblem, the issue is alreadybeyondthelaw, it is just a matter of mercyandhumanity • So we have thelegal right toexclude but we just help out forhumanitarianreasons Studium Generale B. Schotel

  33. What to do? 4. Be carefulinvokingequalityandsocialjustice • Bysuggesting we have to offer refugees a lot of benefits we pavethe way forthepaternalistic-equalityfallacy: • ifwe let them in we cannotprovidethemthesame level of rightsand benefits. In order toprevent second class citizens we do not let them in. Or rather we make itextremelycostlyto do so Studium Generale B. Schotel

  34. What to do? 5. Invokeproportionality • Legal principle: domesticand EU law (very long tradition) • Legitimate goal • Necessary: no leastburdensomemeasureavailabletoachievethesame goal • The advantagesoutweightheburdenimposed on the migrant/refugee/asylumseeker Studium Generale B. Schotel

  35. The question is not (just) whether there is a humanitarian duty to help (nationally or at the EU level), or whether human rights are violated but whether the authorities’ exercise of their right to deny admission is proportionate • No need for desert, true victim, humanitarianism; just a legal subject • If authorities exercise their powers over legal subjects, this should be proportionate • It may urge authorities to seriously consider policy alternatives and empirical research (e.g. presentations Doomernik and Schrover) Studium Generale B. Schotel

  36. A final word on alternatives and empirical evidence (1) • Just one particular provision (no entry and stay without prior authorization) • Of a particular act: alien’s act • Of a particular functional area of law: migration law • Of a particular field of law: administrative law • For the rest many other areas of law apply • If so, as a matter of law authoritries should better substantiate individual cases and general policies Studium Generale B. Schotel

  37. A final word on alternatives and empirical evidence (2) • What is missing is a permit, not unlike a building permit, environmental permit • But in these cases: evidence, expert reports on effects • And counter-expertise • Not happening in migration and refugee law • Compare the size of a dossier on environmnetal law with migration law • And these are not matters of humanity but simply a question of jurisdiction Studium Generale B. Schotel

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