The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration

Date01 July 2016
Published date01 July 2016
AuthorAgustín José Menéndez
The Refugee Crisis: Between Human
Tragedy and Symptom of the Structural
Crisis of European Integration
Agustín José Menéndez
To Francisco Rubio Llorente, in memoriam
Whatdo you think of Europe? Doyou fear being too opinionated?In that case,let me try to answer my own
question.It seems to me that afterthe great dream of a UnitedEurope, we havemade all that we could (and
what we couldnot) to destroy its very foundations. We have sentto hell the common history, thecommon
politics,the common economics.The only ideal thatwe had managed to keepwhole was that of peace.After
centuriesof killing each other savagely,we were exhausted. But we have forgottenall this, so these poor mi-
grants are the perfect excuseto build old and new borders with barbed wire. They say that terroristshide
among the migrants, forgettingthat these poor souls arethemselves escaping fromthe terrorists.
Andrea Camilleri, Laltro capodel f‌ilo
The number of forced migrant s arriving to Europe has ste eply increased in the last
f‌ive years. The trend was hard to miss from 2013. Still, the Union and most if not all of
its Member States failed to act in response to it. Prolonged procrastination contributed
to the overloading of the Italian asylum sy stem in 2014 and the virtual collapse of th e
Greek asylum system in 2015. Migrants were left with few realistic choices but to wave
throughheadingNorth. Massive secondary movementswere at the same time evidence
of the success of the Unionin abolishing internal bordersand of the failure to recreate the
means of governing space and persons once internal border controls were removed. The
emergency measures adopted by supranational institutions in the spring and summer of
2015 (including two mechanisms of relocation of asylum seekers among Member States)
spectacularly failed to contain the crisis (while raising grave constitutional concerns, as
we will see). Temporaryborder controls are back, in far from few places reinforced by
walls, erected or planned. Bitter tensions have ensued, both among Member States and
across Europeansocieties. Things have beensaid and policies have been implemented that
was perhaps not too optimistic to expect were part of Europes dark past, not its future,
such as the conf‌iscation of the propertyof forced migrants when entering a Member State
or a region.
Politicalmavericks have gained new votersby means of projecting all societal
anxieties (from public insecurity to economic pre cariousness, including cultural uncer-
tainty) on forced migrants. Institutional actors have f‌lirted with policies that follow track
by embracing the securisationof asylum, when n ot the criminalisationof asylum
seekers and refugees. The close relation between the socio-economic model of host socie-
ties and the actual capacity to integrate forced migrants is ignored, taken for granted or
(Sellerio,2016), at 64. I make use of the term' forcedmigrant' in the text to refer to all thosewho are forced to
leave their'place in the world', whetheror not they are regarded as qualifying as refugees.
D. Crouch andP. Kingsley, Danish parliamentapproves plan to seizeassets from refugees,TheGuardian,26
January 2016, available at
plan-to-seize-assets-from-refugees; P. Kingsley, Danish police seize valuables from asylum seekers for f‌irst
time,TheGuardian, 30 June2016, available at
European LawJournal, Vol. 22, No. 4, July 2016, pp. 388416.
© 2016 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK
and 350 Main Street, Malden, MA02148, USA
Amidst inaction, ineff‌ic ient emergency measures , policy inconsistency and a
considerable gap between words and deeds, the f‌lows of forced migrants have continued
unabated. Onlythe EU-Turkey statement(moreon the term latter) of March of this year
(2016) seems to have made a difference. However, the respite may prove transitory. It is
unclear whetherthe deal will hold for much longer.
Indeed, it is far fromobvious whether
it should, given the extentto which the mechanics of the agreement, and its overall impli-
cations, are of dubious national and European constitutionality, to the point of casting a
long shadow aboutthe seriousness with which the EuropeanUnion and its Member States
are committed to the fundamental values of democratic constitutionalism. But even if the
agreement would nonetheless hold, it may well be the case that it would only allow the
Union to buy (some) time. T he military and socio- economic conf‌licts that ar e behind
the massive f‌lows of forced migrants keep on raging. The prosecuted and oppressed of
some if not all nations may keep on trying to reach Europe, chancing other (and more
dangerous) routes. Attempts at externalisingrefugee protection to third countries might
prove not only of dubious const itutionality and morality but also unsustainable if no t
counterproductive. It is not fully implausible that what we are witnessing is not the end
of the refugee crisis, but only the end of its long beginning.
I How Did We Get Here?
Time and placemust be taken into consideration in the discussion of any humanaffair, and this is particu-
larly true in an abnormal time like the20
Eric Gill, An Essay on Typography
A The ambivalence of the normative commitment to asylum
The refugee crisis has rendered darkly sinister the dreams of Europe as a special place for
human hopeor the once fashionable characterisation of the Union as a pouvoir civilisateur.
If the awakening has been rude, it is because we might have been sleeping. European (and
not only European) constitutional narratives (and scholarship) have been a trif‌le self-
condescending in many respects, including the extent to which ever louder proclamations
of our commitment to honour the right of asylum (among which the progeny of the so-
called responsibility to protect)
were contradicted by actual asylum practices.
This is not an assessment based on normative scepticism, relativism or cynicism. The
postwar solemn proclamation of the right to seek asylum was and remains a major and
fundamental normative achievement. The very understanding of asylum as a subjective
right, and not merely as a ref‌lex of state policy, is a pre cious legacy of the Social and
Democratic Rechtssta at that is also to be open and coo perative. Still, as the pos twar
generation clear-headedly insisted, normative claims are not made in the abstract realm
M. de la Baume,Post-coup crackdownthrows doubton Turkey migrationdeal,Politico,7 July 2016, available
tayyip-erdogan/; P. Carrelland A. Bolton, Turkey says to back away from EU migrant deal if no visa-free
travel,Reuters, 31 July 2016, availabl e at ticle/us-turkey-securit y-eu-travel-
(Penguin,2013), at 1.
An editedvolume focusing on theimplications of responsibility to protectforinternationalhumanitarian law,
and in particular, for EUasylum law; E. Daviesand L. Glanville (eds.),Protecting the Displaced.Deepening the
Responsibility to Protect (Martinus Nijhoff, 2010);A. Orford, InternationalAuthority and the Responsibility to
Protect (Oxford University Press, 2011).
European Law Journal Volume 22
©2016JohnWiley&SonsLtd. 389

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