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How do you say no when you cannot say no?

When it comes to refugees seeking asylum in the European Union (“EU”), it is not as easy as “just saying no.” Legally speaking, human rights trump all, regardless of the cost. This has created a Catch-22 that is testing the mettle of the twenty-eight member states.

Photo by Alex Donohue (Flickr).

Editor’s Note: This article was written before the terrorist attacks in Paris.

Over the last several months, it has been nearly impossible to turn on a television or read a newspaper and not see a story about the refugee crisis raging in Europe and the Middle East.  United Nations Secretary General Ban Ki-moon has called the crisis “a defining moment” for Europe and the entire world.  Refugees from multiple nations are fleeing by the thousands from their homelands for a chance at a better life.  Most of them are desperate, with nothing left to lose.

Over 59.5 million people worldwide are in transit as either refugees or displaced persons within their home countries. 

One of the geneses of the current refugee crisis affecting Europe can be traced back to 2011 when, inspired by the Arab Spring uprisings beginning in December 2010, the people of Syria began their own protests in opposition of Bashar al-Assad’s regime.  The Syrian government’s response to these protests turned violent, resulting in many protestors being tortured or killed.  By March 2011, this violent response had escalated into a full blown civil war in Syria.  Citizens began to flee the country, beginning with approximately 300 people by May 2011.  As the civil war raged on, these numbers have grown significantly.  As of November 2015, more than twelve million Syrian nationals, half of whom are children, have fled their homes hoping to be granted asylum in other countries.

The Syrians are not alone in their pursuit of safety.  They are joined in large part by Eritrean nationals fleeing “[o]ne of the poorest countries in the world [with a] closed and tightly securitized state [led by] an authoritarian government.”  In addition to Syrians and Eritreans, citizens of Ethiopia and South Central Somalia are also fleeing oppressive governments, substandard economies, and a lack of sustainability.  Over 59.5 million people worldwide are in transit as either refugees or displaced persons within their home countries.  Mark Bixler and Michael Martinez, writers for CNN, commented that, “Humanity has never seen such displacement. Ever.”

The number of people seeking refuge in Europe has more than doubled in the last year.

While many of these refugees are seeking asylum in neighboring countries such as Turkey, Jordan, Lebanon, Iraq, and Egypt, a large number of them are rushing to Europe.   The number of people seeking refuge in Europe has more than doubled in the last year.  Out of the twenty-eight member states of the EU, Germany and Sweden seem to be the most popular choices for refugees. So far, both countries have received somewhere between 50,000-100,000 requests for asylum.  Austria, Bulgaria, Denmark, Hungary, the Netherlands, and Serbia have received between 10,000-49,999 requests.  Belgium, France, Spain, Switzerland, and the United Kingdom have received only 5,000-9,999 requests.  The remaining fifteen member states have received less than 5,000 requests for asylum.

This crisis has caused severe financial and political strain on the EU as member states scramble to find resources to cope with the massive influx of displaced people within their borders.  The EU, as an independent body, has dedicated $10.1 billion to provide resources to address the current refugee crisis.  It has also earmarked an additional $107.3 million for emergency assistance to the member states hit the hardest by the influx, $2.15 million for the World Food Program this year, $6.4 million for 2016 support to EU agencies dealing with the crisis, and $3.2 million for humanitarian aid in 2016.  In addition to financial strain on the EU as a whole, individual countries are also feeling the pinch of the purse.  Germany alone has budgeted $6.4 billion to assist the 800,000 people expected to arrive this year.  The UK has spent nearly $1.07 billion  since the crisis began in 2011.

These laws provide specific rights to everyone within their jurisdiction, citizen or not. 

In order to appreciate how the EU situation escalated to the degree that it has, and why the problem is not an easy one to solve for European nations, it is important to have an understanding of how human rights are governed and protected under European Union laws.  The Council of Europe (a precursor to the establishment of the European Union) was founded on May 5, 1949.  With the horrors of the holocaust still fresh in its mind, one of the Council’s first priorities was to establish binding laws that protected the rights of all human beings within its borders.  This goal was achieved with the European Convention on Human Rights, which was ratified on September 3, 1953.  This document, which legally guarantees certain rights to all people within European member nations, is considered binding on every country that joins the Union.  Each nation is expected to ratify the convention as soon as possible.

Before 2009, European treaties did not incorporate a written list of these rights, instead simply referencing the European Convention for the Protection of Human Rights and Fundamental Freedoms (the full name for the European Convention on Human Rights).  After the passage of the Charter of Fundamental Rights of the European Union and the Treaty of Lisbon, clear and unambiguous guidelines had been established.  These laws provide specific rights to everyone within their jurisdiction, citizen or not.

For example, consider that Article I of the European Convention on Human Rights requires that “the high contracting parties [of the treaty] shall secure to everyone within their jurisdiction the rights and freedoms defined [herein].”  Among these rights are protections by law of everyone’s right to life, as well as a prohibition against collective expulsion of aliens without due process.

The Charter of Fundamental Rights of the European Union likewise establishes that “human dignity is inviolable” and “must be respected and protected.”  It further states that “everyone has the right to life,” and that everyone is equal before the law.  Most importantly, though, is Article 18 of the Charter of Fundamental Rights of the European Union, which directs that,

The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.

These laws have placed the European Union between a rock and a hard place, and are testing fortitude of the member nations.  Foreign nationals are guaranteed the legal right to seek asylum in the EU.  Once granted asylum, the treaties further guarantee the right to life which, arguably, means at least the right to financial assistance to secure housing, clothing, food, and medical care.  Further, the treaties provide for the right to an education, the right to marry and raise a family, and the right to conduct a business.

Even if these foreign nationals are denied asylum through lawful means, they cannot simply be deported without due process.  Quantify these costs by the overwhelming number of people seeking asylum, and the logistical demands alone are enormous.  At least at the outset, this creates a tremendous financial need, as is clearly illustrated in the costs discussed above.

Many countries insisted that the EU could not force them to take anyone into their countries.

Unfortunately, these costs threaten to cause the collapse of the European Union.  Even with twenty-eight separate nations pooling their resources to share the immense financial burden of assisting millions of people who arrived seemingly overnight, there are only so many pennies in the piggy bank.  Eventually, nations will face the choice of when they can say no, and when they must say no.

The saving grace for the EU in this crisis lies in Article 15 of the European Convention for Human Rights.  In “times of war or other public emergency [threatening] the life of the nation,” this article allows,

[A]ny High Contracting Party [to] take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

These tensions have also caused political strains.  Hungary has called the EU refugee crisis a “German problem,” since Germany has hosted more refugees than any other nation.  Germany, on the other hand, has criticized the EU’s slow pace, calling it “unacceptable”.  Earlier this year, the EU member states met to discuss establishing a quota system, which would have assigned a certain number of refugees to most countries in the Union.  This effort ultimately failed.

Many countries insisted that the EU could not force them to take anyone into their countries.  In one respect, they are right; any nation could refuse to cooperate, close their borders, and withdraw from the EU.  In fact, several countries, including Germany, Italy, and Hungary, have threatened to reinstate border controls.  Such reinstatements would effectively end the Schengen Agreement, which has eliminated almost all border checks within the EU for nearly twenty years.  Additionally, it would harm European trade and tourism, just as China’s economic slowdown is affecting the global economy.

Admittedly, there is no easy answer and no panacea to cure the problem.  The conflicts and economical destituteness in Africa and the Middle East seem to have created the perfect storm for political turmoil and financial strain on the EU.  The United Nations has described this as “the worst refugee crisis seen in the last 25 years.”  However, the EU has weathered crises in the past.  While fears and concerns are genuine, the preservation and sustainability of the Union will require collaborative efforts by all member states.  The refugee situation, combined with all of the other crises faced by the EU, will arguably be the biggest test yet of the EU’s resolve.

Clint Davis, Editor-in-Chief Emeritus
About Clint Davis, Editor-in-Chief Emeritus (17 Articles)
Clint Davis is a 2017 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2016-2017 academic year. Before law school, Clint served as a police officer for seven and a half years in Williamston, N.C. He graduated from the University of Mount Olive in the Spring of 2013 with a degree in Criminal Justice and Criminology. During his time at Campbell, Clint studied abroad at the University of Cambridge (UK) with a focus on the law of the European Union and comparative data privacy. He worked for the Honorable Wanda G. Bryant at the North Carolina Court of Appeals, the Honorable Seth Edwards at the Martin County District Attorney's Office, the Honorable Susan Doyle at the Johnston County District Attorney's Office, and the Honorable Lorrin Freeman at the Wake County District Attorney's Office. Clint also competed on Campbell's National Moot Court Team and served as an associate justice for the Campbell Law Honor Court.
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