By – Shreya Maheshwari

Abstract 

The 2015-2016 European migrant crisis was one of the most direct tests of international human rights post-World War II. During this period there were 1.83 million irregular crossings at the EU’s external borders, where a majority of those crossing, including Syrians and Afghans, had valid claims under  the 1951 Refugee Convention. However EU nations, despite being signatories to the 1951 convention responded with policy measures including introduction of mandatory visas, use of force at the border to prevent people from entering the EU states. The article examines how European states’ border policies during the 2015-2016 migrant crisis prioritised national sovereignty over human rights thereby showing limitations of international migration law. 

Introduction 

The 2015-2016 European migrant crisis was one of the most direct tests of international human rights post-World War 2 and marked a critical moment for international human rights law. During this period, the majority of the population that crossed the EU’s external borders was fleeing from war and conflict, therefore had valid claims under the 1951 Refugee Convention. However, EU nations, despite being a signatory to the 1951 convention, responded with policy measures including the introduction of mandatory visas, and the use of force at the border to prevent people from reaching their borders. The article examines the 1951 Refugee Convention and the EU’s response to the 2015-2016 migration crisis to understand the structural limitations of International Migration Law. It also focuses on how the migration crisis highlights tensions between national sovereignty and human rights.

Structural Gaps in International Law and the Primacy of Sovereignty

The 2015 migrant crisis highlighted how countries often leverage structural ambiguities in legal frameworks to prioritise national sovereignty over preventing global human rights violation. As seen in 2015 EU states leveraged structural ambiguities in the 1951 Refugee Convention. It is important to understand that the Convention does not make it a absolute right of a person to be accepted as a refugee. This highlights a structural paradox in the Convention, as it imposes non-refoulement on countries thereby preventing them from sending back asylum seekers back to persecution, however it is not mandatory for them to admit asylum seekers.

This gap was significantly exploited by EU states for denying entry to many migrants through measures including digital policing of borders while remaining a signatory to the 1951 convention. Further Article 14 of UDHR recognises the right to seek and to enjoy asylum in other countries. However, as a non-binding (soft law) it provides countries an easy mechanism to bypass this provision. This highlights that while the international law framework recognises right to asylum, its actual enforcement is dependent on the country’s discretion. This creates a tension between human rights violation and sovereignty, where countries tend to prioritise sovereignty as migrants are often viewed as threats to national security. Thus, rendering migrants helpless despite the existence of a legal framework for their protection.  This provision was also used by EU members to safeguard their sovereignty at the cost of migrant lives.

Additionally, the Dublin System which forms the core component of EU law shifted responsibility on EU states with external borders by making them responsible for processing most asylum claims. This led to system collapse as external border states were overburdened with a huge volume of migrants. Hence, they were forced to exercise measures including putting fences on its border to restrain migrants. This also resulted in gross human rights violation as frontline states created hotspots where people were concentrated in inhumane conditions. Thus, to protect its sovereignty of inner EU states migrants were either concentrated in the bordering states or were denied entry due to overburdening. 

Externalizing Borders: Sovereignty Through Strategic Compliance

The crisis also showed limits of EU border management. It depicted how EU states began operationalising legal ambiguities by externalizing migrants to other countries to safeguard their sovereignty as well as maintaining compliance with international law. One of the key examples of this is the 2016 EU Turkey Agreement. This agreement required Turkey to readmit irregular migrants who crossed its borders to enter Greece for consideration for €6 billion in funding. The EU argued that this agreement was aimed to end human suffering by offering alternative asylum to migrants in Turkey which is a safe country.  However, it ignored the paradox that Turkey despite being a signatory to 1967 Geneva convention, only recognises refugees originating from European Countries. This puts non-European migrants right at risk as they are not legally recognised in Turkey.

Further this agreement violates Article 39(2)(a) of EU Asylum Procedures Directive   which requires that a third safe country must ratify the Convention without any geographical limitations. Thus, the EU exercised its sovereignty in the guise of protecting human rights of refugees, thereby bypassing obligations under International Law. This highlights limitations of International Migration Law as its operation are entirely dependent on state’s discretion.

The Limits of Supranational Integration Under Sovereignty Pressure

The crisis also exposes structural limitations of European Migration Governance. The Schengen Agreement which mentions that signatory countries removes passport and border controls at shared boundaries forms an important aspect of European Migration Law. This agreement was temporarily suspended in the wake of the 2015 crisis by EU member states which is allowed under exceptional circumstances. Many EU nations reimposed border restrictions highlighting how supranational integration can become reversible under the pressure of exercising sovereignty. This highlights how securitization of migration where state’s security and sovereignty was prioritized over individual rights. This helps nations enforce restrictive mechanisms while providing them a justification to prove they are following international law.  These developments show how European states prioritised sovereignty over right to seek asylum despite existence of several legal frameworks

Conclusion 

The above analysis highlights how international law including the 1951 Refugee Convention can operate as a state centric design prioritising state sovereignty. As the 2015 migrant crisis depicts how EU states exploited gaps in international law to prioritise its sovereignty over its international commitments. Additionally, it shows how states selectively comply with international law thereby preventing a meaningful compliance with the objective of laws. Thus, the right to seek asylum in a safe country exists merely as a formal principle rather than a reality. This raises concern about the effectiveness of international law where the protection of migrants or refugees’ rests on state discretion rather than actual law. 

About the author

Shreya Maheshwari is a second-year B.COM LLB student at O.P Jindal Global University. She is interested in law and public policy, with a focus on emerging regulatory frameworks in India.

Image Source- https://migrationpolicycentre.eu/acceptance-of-refugees-and-solidarity-in-the-eu/