Refugee Protection and Responsibility-Sharing: The Quest for International Solidarity

Remarks to The Graduate Institute, Geneva on 17 May 2021

Apart from being, self-evidently, a good thing, what is ‘international solidarity’? Where do we find it? What are we to do with it? And what does it have to do with protection?

According to the Oxford English Dictionary, solidarity is ‘the fact or quality, on the part of communities... of being perfectly united or at one in some respect, especially in interests, sympathies or aspirations.’

In French, from which the English is a relatively recent borrowing, ‘solidarité’ refers to a relationship between people who, having a community of interests, are linked one to another, and so to the sense of a moral duty towards other members of a group, based upon an identity of situation, of interests.

In either case, ‘solidarity’ seems most apt to figure in the regime of protection. Here, ‘international solidarity’ is the necessary antidote to that national egoism which might otherwise frustrate observance of the fundamental principle of non-refoulement or the achievement of durable solutions.

Not surprisingly, ‘solidarity’ figures in the EU treaties. The Treaty on European Union includes solidarity after the values common to the Member States (Article 2); Article 3 refers to solidarity between generations; Article 21 recognizes the principle of solidarity with respect to the Union’s international action, while ‘mutual political solidarity’ and ‘mutual solidarity’ are to be key principles when implementing Union foreign and security policy (Articles 24, 31, and 32).

And solidarity is there, too, in the Treaty on the Functioning of the European Union, although in different contexts. In the Preamble we are told of the intention of the parties ‘to confirm the solidarity which binds Europe and the overseas countries...’

Article 67(1) on the area of freedom, security and justice then reminds us that the Union, ‘shall ensure the absence of internal border controls for persons and shall form a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals...’

Article 80, winding up the chapter on immigration and asylum, recalls that these policies, ‘shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.’

Article 122 cites a ‘spirit of solidarity’ in economic policy, Article 194 brings in the energy market, while Article 222, named the ‘Solidarity Clause’, contemplates joint and mutual action if a Member State is ‘the object of a terrorist attack or the victim of a natural or man-made disaster’.

Chapter IV of the EU Charter of Fundamental Rights meanwhile sets out ‘solidarity rights’, but in employment and other, generally related fields.

So far, so good, you might think, but what does it actually mean in concrete terms? How can it be translated into the international field of refugee protection? And what is refugee protection, and how might it and refugees benefit from international solidarity?

Within the limits of the EU asylum acquis, the framework established by the 1951 Convention/1967 Protocol, and what is required by the European Convention on Human Rights, protection can be understood as using ‘the law’ and the obligations of States. These are intended to ensure that refugees and those in search of protection are not penalized, expelled or refouled, that every refugee enjoys the full rights to which he or she is entitled as a refugee, that his or her human rights are guaranteed and, above all, that the refugee has an opportunity for a durable solution.

This appears at once to stand in contrast to the solidarity of which the European treaties appear to speak, which in turn looks inwards, not outwards. A reality check, a quick look at what is going on in the world today, in the European Union, in the Mediterranean, shows that protection is not happening.

On the one hand, we have the jurisprudence of the Court of Justice of the EU, ruling out (§§94, 106) ‘Dublin’ returns when Member States ‘cannot be unaware’ of systemic deficiencies giving rise to a real risk of inhumane treatment.

On the other hand, we have a report published in April by Protecting Rights at Borders, which lists 2,162 cases of ‘push-backs’, involving France, Italy, Hungary, Romania, Serbia, Croatia, Bosnia-Herzgovina, North Macedonia, Serbia, Greece, and Turkey.

Push-backs are occurring on a much wider scale, of course, and Protecting Rights at Borders has a limited presence and does not cover the central Mediterranean and the search and rescue areas, where disembarkation must be negotiated every time. It also faces other limitations, including its exclusion, like all NGOs, from the securitised and militarised Greece-Turkey land border, the reluctance of people to report owing to fear of repercussions, and the general belief that reporting will change nothing.

What is significant, however, are the numbers of asylum seekers who do report being denied access to the asylum process, being physically abused and assaulted, and whose property, including mobile phones, is stolen or destroyed.

The law says it should be otherwise. The excessive use of force potentially violates the right to dignity and integrity, contrary to Articles 3 and 4 of the EU Charter and Articles 3, 5 and 8 of the European Convention on Human Rights. In addition, the right to apply for international protection, including at the border, is expressly protected by Article 6 of the EU Procedures Directive; while protection against refoulement is required by Article 3 of the European Convention and, under EU law, throughout the asylum procedure.

At the France-Italy border, however, many are detained overnight, without food, interpretation or medical assistance before being sent back to Italy. The French courts have ruled that the detention lacks any legal basis, but have done nothing to bring it to an end.

From Italy, without any procedure, migrants and asylum seekers are handed over to the Slovenian border police, which then passes them to Croatia, from where they are sent to a non-EU country, Bosnia-Herzegovina.

Push-backs from Romania seem to be especially violent, and in Serbia and Bosnia hundreds were observed sleeping rough, close to the border.

In December 2020, the Court of Justice of the EU ruled in Case C-808/18 that by limiting the numbers of those allowed to enter, systematically detaining applicants, and subjecting those applying for protection to unlawful conditions, Hungary had failed to fulfil its obligations under the EU Directives on return, on procedures, and on reception. Still, daily push-backs continue.

And in Greece, the standard reply to complaints is a trumpian lie; that the Greek authorities and officials perform their duties ‘in full compliance’ with international law, both at sea and at the land border, notwithstanding the overwhelming evidence to the contrary – evidence which is dismissed as the product of smugglers.

The matrix of context, knowledge and engagement explains why European States are legally responsible for the protection of those seeking refuge and protection in Europe, whether they come directly or through intermediate countries. And EU law has clear implications for measures taken (often in active or passive collaboration with non-EU States), to prevent access and which have the consequence of leaving those affected – refugees, asylum seekers, migrants, vulnerable groups – to survive or subsist as best they can in conditions incompatible with human dignity, and with Article 3 of the European Convention and Article 4 of the EU Charter.

The EU’s New Pact on Migration and Asylum might appear to offer a solution – a fundamental rights monitoring mechanism. But as the European Council on Refugees and Exiles (ECRE) and other commentators have pointed out, it is intended to apply to a new ‘screening process’, whereas the wrongs being done today, and yesterday, and tomorrow, all take place outside process, away from official border posts; and they are done with the connivance of border police and evidently with the knowledge of authorities higher up.

ECRE proposes serious structural reform, but will it be enough? If it is to have an impact, the mechanism must possess independence and be able to receive and handle complaints; it must have the capacity to oblige States to investigate reported instances of abuse and violations of fundamental rights, and provide a measure of justice.

In practice, it has proven hard to control the activities of Frontex, about which increasing evidence demonstrates involvement in push-backs and take-backs to Libya and in the Aegean. Nor is it clear that a reformed scrutiny mechanism will do any better, even if it does cover all border surveillance and migration management operations.

What cannot be allowed to continue, however, is the constant criminalization of civil society and of NGOs that provide support for refugees and migrants, or the prosecution and punishment of asylum seekers for alleged involvement in people smuggling – in two recent Greek cases, resulting in terms of imprisonment of 52 and 146 years.

The abuse of criminal process and ‘push-backs’ – I use the term to describe the multiple varieties of abuse currently visited on asylum seekers and migrants throughout Europe – are both incompatible with the rule of law and with the regime of international protection which lies at the heart of the Global Compact on Refugees.

What is more, the New Pact on Migration and Asylum is itself witness to the failure of the European Union to establish a common asylum system which, ‘based on solidarity... is fair towards third-country nationals’. Instead, as the Commission itself notes: ‘The new solidarity mechanism will primarily focus on relocation or return sponsorship.’ In this context, solidarity will be one way, intended to keep the refugee away and to return the refugee promptly. The focus of the New Pact on externalisation and deterrence, its proposal for a screening process, and Member States’ tolerance and encouragement of push-backs will only heighten the risk of refoulement and ill-treatment.

Indifference to whether people live or die, short-term self-interest, and blatant disregard of the EU’s organising principles and legal rules are clearly driving policy and practice in some Member States, as is the woeful lack of basic decency and common humanity.

What then is the answer?

Litigation can provide one, but it takes time and offers no guarantees; still, it must remain on the agenda.

More radical is another example of solidarity, which is more true to its roots. Under this form of solidarity, social solidarity, civil society and NGOs must become part of border management as an integral although independent actor.

This will require a buy-in from all sides, beginning with a new commitment by all in government to the rule of law and to international protection. Equally, civil society will need to be ready to participate.

This is an approach to governance capable of being applied in many fields and able to democratise the ways things are done. It can go some way to resolving the them/us split which is increasingly the image of government, particularly in controlling borders.

But if a radical solution is not chosen, then we must truly chose solidarity by countering the propaganda, contributing to agencies on the front line, supporting legal action taken to counter abuse, and in identifying those responsible, whether or not disciplinary or other measures are taken against them,

In his 1942 novel, Pilote de guerre, published in English as Flight to Arras, Antoine de Saint-Exupéry says quite simply:

« Chacun est responsable de tous. Chacun est seul responsable. Chacun est seul responsable de tous. »

‘Everyone is responsible for all. Everyone is solely responsible. Everyone is solely responsible for all.’

To my mind, this reflects a sense of solidarity which is quite beyond that currently in the mind of the European Commission; for it is capable of looking outwards, of accommodating those rescued at sea and those seeking protection by land, of being truly international.

Guy S. Goodwin-Gill is a Professor at the Kaldor Centre for International Refugee Law, University of New South Wales, Emeritus Fellow of All Souls College, Oxford, Emeritus Professor of International Refugee Law, and an Honorary Associate of Oxford’s Refugee Studies Centre. He practised as a Barrister at Blackstone Chambers, London, from 2002-18, is the Founding Editor of the International Journal of Refugee Law, and was Editor-in-Chief from 1989-2001. In February 2020, he received the Stefan A. Riesenfeld Memorial Award at Berkeley Law, for his contributions to international refugee law. Among his many publications dealing with international law and the movement of people between States is The Refugee in International Law. First published in 1983, the fourth edition, now co-authored with Professor Jane McAdam and Emma Dunlop, will be published by Oxford University Press in September 2021. 

Image credit: UNHCR/Achilleas Zavallis