The EU-Turkey Agreement: A Unified Approach
When Solidarity Is Missing
The Politics of International Migration and Asylum Research Project 2016
Name: Judith Heyligers Student-number: 10823964
Title: The EU-Turkey Agreement: A Unified Approach When Solidarity Is Missing. Professor and Supervisor: Jeroen Doomernik
Second Supervisor: Polly Pallister Wilkins
Course: The Politics of International Migration and Asylum Research Project 2016 Master: Political Science, Specialization International Relations
Email student: jheyligers@live.nl Date: 24-06-2016
1 Introduction ... 1
2 Theoretical Framework ... 5
2.1 Inherent paradoxes in Liberalism: The Liberal Paradox explanation ... 8
2.2 Threat under Construction: The Securitization explanation ... 13
2.3 Free-rider dynamics: The Game Theories & Two Level Games explanations ... 16
2.4 The Problematic Character of the EU: The Deficiencies in EU Institutions explanation 20 2.5 Conclusion ... 24
3 Methodological considerations ... 27
3.1 Methodology ... 27
3.1.1 Methods of Analysis: within case study - process tracing: ... 27
3.1.2 Case selection ... 29
3.1.3 Data Collection ... 30
3.2 Operationalization ... 30
3.2.1 Theories and their causal mechanisms ... 30
3.3 Limitations of the Research ... 34
4 Legal perspective and ramifications: the international legal refugee regime ... 37
4.1 International Human Rights and the Refugee Convention ... 37
4.2 EU and Human Rights ... 39
4.3 EU legal and policy framework on Asylum and Migration ... 40
4.3.1 Institutional architecture ... 40
4.3.2 EU’s legislative instruments in the field of asylum and migration ... 45
4.4 Conclusion: Summarizing the key legal provisions ... 47
5 Historical Record: Extra-territorialisation of EU migration and asylum regulations 49 5.1 A system of remote control ... 49
5.2 Extra-territorial Migration Policy: Repressive and Preventive strategies ... 50
5.2.1 Extra-territorial Asylum-policy ... 56
6 Case Study ... 61
6.1 Background Conditions: The Refugee Crisis ... 61
6.2 Background Conditions: Refugee Crisis within the EU ... 62
6.2.1 Initial Responses within the EU ... 64
6.2.2 EU community responses ... 65
6.3 The EU-Turkey Agreement ... 68
6.3.1 Specific Conditions EU-Turkey Agreement ... 69
6.3.2 Legal and Practical Implications EU-Turkey Agreement ... 70
6.3.3 The EU-Turkey agreement in effect: reactions and results ... 73
6.4 Consulting the Experts ... 73
6.4.1 Reassessing the 2015 migration movements: a refugee crisis? ... 74
6.4.2 Issue of Solidarity ... 74
6.4.3 Trade-off between Human rights and Nation states security ... 75
6.4.4 Externalisation and Extra-territorialisation ... 76
6.5 Triangulation: Combining the Streams of Evidence ... 76
7 Final Conclusion ... 82
8 Appendix 1. EU-Turkey Statement of 18 March, 2016 ... 85
9 Appendix 2. The Joint Action Plan EU Turkey ... 86
10 Appendix 3. Figures ... 87
11 Appendix 4. References ... 88
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1 Introduction
Today, the world seems to be totally preoccupied with the refugee crisis which is presenting Europe with the biggest refugee flows since the Second World War. The unprecedented numbers of those arriving in EU - by some observers described as the defining humanitarian issue of our age - has revealed the weakness of the global refugee regime and that of Europe in particular and has fundamentally altered the political landscape in Europe (Crépeau & Purkey, 2016: 1). The European Union’s (EU) most recent response to the crisis is a controversial agreement with Turkey [18-03-2016], presenting a new approach that will put a halt to the spontaneous arrival of asylum seekers1 in Europe. The EU-Turkey agreement aims at preventing refugees from arriving by extra-territorialise the processing of asylum claims outside the EU territory and by sending irregular migrants who have reached the EU territory back to Turkey. While the agreement does represent the achievement of a collective response and a direct action plan to cope with the crisis, it is far from perfect.
The EU-Turkey agreement is being internationally contested in terms of its normative and legal base, and human rights organizations and the UNHCR have voiced concerns over the agreement as it is potentially in contravention of European human rights laws (UNHCRB, 2016; Crépeau & Purkey, 2016: 22). Moreover, observers have raised serious questions regarding the feasibility and the effectiveness of the agreement and some argue that it has the potential for unintended substitution effects (Czaika & Hobolth, 2016: 3; Crépeau & Purkey, 2016: 22-25).
Despite the controversy, extra-territorialisation of migration policies is not a totally new measure in the politics of migration (Noll, 2003; Rijpma & Cremona, 2007: 13), and can (and should) be examined in the context of a broader process of the externalisation of migration and asylum systems. The externalisation of immigration policies happens as a result of various initiatives that ‘deterritorialize’ the migration control system by using instruments that increasingly entail external dimensions, including visa restrictions, carrier sanctions and safe third country rules (Afeef, 2006:2; Betts, 2010: 15; Czaika & Hobolth, 2016: 3). Although many of these externalising policies are already being implemented, externalisation remains controversial (ibid.; Noll, 2003; Levy, 2005; Gibney, 2008). The main reasons for the agreements’ ambiguity is its potential conflict with the fundamental principles of international asylum and migration law, such as the right to claim asylum and the principle of non-refoulement.
While the ineffectiveness of externalising and restrictive asylum policies are more or less
1 The definition of an asylum-seeker used here, is retrieved from the UNHCR, which encompasses: “[…] an individual seeking international
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acknowledged (Smouter, 2016; Alderman, 2016; Czaika & Hobolth, 2016: 17), the EU’s new agreement with Turkey is essentially based on the premises of exclusive extra-territorial asylum processing, presenting a new chapter in the move towards extra-territorialisation of the EU’s responsibilities. As EU-law tends to be “event-driven” (Rijpma & Cremona, 2007: 21; Noll, 2003: 340; Levy, 2010: 98-102), the agreement potentially marks a permanent shift in the institution of asylum as we know it.
Given the weak and ambiguous legal and normative base of the agreement and its questionable effectiveness, the rationale behind the agreement is a mystery. Research is needed to explore the issues involved in greater depth. To fully understand and examine the issue and the potential driving forces, the present study attempts to address the following research question: Why is the EU extra-territorializing its asylum management, what are the legal and theoretical ramifications of externalising asylum policies and what are the potential implications? The issue is extremely relevant today, yet it is important to incorporate an examination of the historical record of the asylum system, with a special focus on externalisation policies, in order to fully understand the potential sources and effects of the Turkey agreement.
Starting with an examination of the relevant literature in the field of asylum and migration polices, this research describes the dominant perspectives on the externalisation of migration policies and their main points. This will help to clarify the possible effects and the theoretical, legal, normative and practical ramifications of migration policy externalisation. Attention is specifically focussed on the intersubjective meanings and causal claims that have informed EU policy makers to formulate extra-territorialisation policies. The following section will set out the research methodology. The third section devoted to the current legal framework will set the conditions while to get a full grasp of the issues at stake the development of the external dimension to the EU’s migration management will be illustrated in the section thereafter.. Reassessing the EU’s asylum and migration policies allows a focus of attention on the general implications of the EU’s approach to migration management.
The EU-Turkey agreement will be studied in the form of a case study to found out why the EU is externalizing its migration policies even though such policies remain very controversial. Beginning with a contextual analysis of the refugee crisis and the initial responses it provoked, the case study aims to establish a comprehensive overview of the conditions and factors in place at the time of the EU-Turkey agreement. The contextual analysis is supported with EU policy documents in order to discover and unravel forces that
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formed the motivation for the controversial policy. Interviews will be conducted with experts in EU-policy developments to validate these early findings. Finally, the streams of evidence and the insights found in the theory will all be combined to draw the appropriate conclusion. It would appear that the rationale underlying the choice for the EU-Turkey agreement can be attributed to the perceived deficiencies in the EU’s institutional structure. The incomplete and dysfunctional institutional architecture of the EU, and especially with regards to issues of migration and asylum create a decision-trap, exacerbating the already limited solidarity among Member States, and thereby impeding a coherent European approach.
Yet, as will come clear throughout the research, the EU’s asylum management is characterised by great complexity, therefore the theoretical explanations should not be viewed as mutually exclusive. Complementing and combining explanatory variables brought forward in the separate perspectives presents the most complete and coherent understanding of the weaknesses of the EU’s asylum system, forming the underlying motivations for politicians that made the EU-Turkey agreement seem a valuable and appropriate option.
In order to examine the theoretical and legal ramifications on extra-territorialisation the concept must first be clearly defined. The phenomenon, despite commanding growing attention, is still surrounded by haziness leading to additional ambiguity. While the EU uses one term to describe all the external aspects of asylum and migration policies labelling it as an “external dimension”, in fact, various terms are used in academic literature to define pre-border migration enforcement, “[…] the outsourcing, externalisation, offshoring or extra-territorialisation of migration management, external migration governance, remote migration policing and others” (Den Heijer, 2011: 3). Border outsourcing or extra-territorialisation refers to the wide range of tools aimed at managing and controlling border crossings, encompassing both traditional tools as well as more innovative technological and informational instruments, yet they provoke effects that have expanded the control from the traditional physical border to the extraterritorial (Menjívar, 2014: 355). This paper uses the term extra-territorialisation, borrowing the definition by Rijpma and Cremona (2007) that covers:
“[…] the means by which the EU attempts to push back the EU’s external borders or rather to police them at distance in order to control unwanted migration flows.Extra- territorialisation includes the way in which the EU and its Member States attempt not only to prevent non-Community nationals from leaving their countries of origin, but also to ensure that if they manage to do so, they remain as close to their country of origin as possible, or in any case outside EU territory. It furthermore covers measures that ensure that if individuals do manage to enter the EU, they will be repatriated or removed to ‘safe third countries’” (Rijpma & Cremona, 2007: 12)
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2 Theoretical Framework
International migration by its nature involves the movement of people across an international border. Logically it has stimulated a significant body of scholarship examining the diverse ways in which borders interact and affect human mobility (Menjívar, 2014: 354; Ferrer-Gallardo, 2008: 303). In the context of the increasing importance of national security, control and the securitization of migration, borders have also become of increasing significance (Menjívar, 2014: 354). Borders, which are in essence simply the physical demarcation that separates national neighbouring territories, encompass multiple meanings and functions and can be understood in terms of their geopolitical dimension (geopolitical meaning of borders in relation to other countries and regions), functional dimension (as regulator of flows of people and goods) and symbolic dimension (instrument for national identity formation) (Ferrer-Gallardo, 2008: 303-306).
Apart from the growing emphasis on borders and corresponding concepts which make the crossing of a territorial border much more than just a geographical phenomenon - given its functional and symbolic meanings-, the act also very much involves legal aspects since international immigration necessarily entails the crossing of a juridical border (Tijhaar, 2016; Den Heijer, 2011: 4). The legal boundaries defining the territories of states change as the boundaries or borders of national territories change and the corresponding symbolic, geopolitical and functional models with them, which the European Union border dynamics illustratively demonstrate (Ferrer-Gallardo, 2008).
Yet, even without actual border reconfiguration, phenomena such as ‘irregular migration’ and ‘asylum seeking’ are in fact the products of states’ legal regulations and restrictive policies (Samers, 2004). Legal frameworks and immigration policies define what is permitted and what is not, what constitutes as legal and what as illegal, hence, states’ policies on legal migration, citizenship and borders implicitly construct illegal immigration. Irregular immigration, thus, is an epiphenomena of legal migration and while states lay down the rules and standards for legal migration, the categories and methods that are constructed for legal access to the territory, construct illegal methods as well (idem: 2-3).
Viewing irregular and regular migration as a ‘constructed phenomenon’ is in line with a constructivist mode of thought, which understands ‘social phenomena’ or ‘social facts’ as an outcome of collectively constituted intersubjective meanings (Finnemore & Sikkink, 2001). These intersubjective meanings are not reducible to individuals, rather are collectively shared understandings of the world in the form of knowledge, norms, ideas, and political arguments
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that reshape actors’ interests and behaviour (idem: 392-396). When intersubjective beliefs are institutionalized they consequently reinforce the collectively held beliefs that formulated them, because once institutionalized they formulate the context that subsequently shape the interests and identities of actors (idem: 393).
The process of ‘border-escalation’, outlined by Lutterbeck (2006) demonstrates the self-reinforcing effects of institutionalized policies in EU border management (Lutterbeck, 2006: 77). While the effectiveness of stringent border management remains disputed (Lutterbeck, 2006: 78; Czaika & Hobolth, 2016: 1-2), there is no doubt that increasing restrictiveness promotes the involvement of human smugglers in the movement of migrants and the displacement of migratory routes towards alternative (more dangerous) routes (Lutterbeck, 2006: 77-78). Consequently, these unintended side effects result in a growth in human smuggling activities and a geographic diversion of migratory routes, which creates a new rationale for further border enforcement. Accordingly, states strengthen their border control, thereby fostering the market for human smugglers which again generates increasing demands for border control and so forth (ibid.).
Thus, to grasp the constitution of the social phenomena it is essential to be able to explain how they inform politicians and shape political outcomes. Or, as Finnemore and Sikkink (2001) describe, to understand the causal mechanism beyond political behaviour:
“[…] An understanding of how sovereignty, human rights, laws of war, or bureaucracies are constituted socially allows us to hypothesize about their effects in world politics. Constitution in this sense is causal, since how things are put together makes possible, or even probable, certain kinds of political behavior and effects” (Finnemore & Sikkink, 2001: 394).
In order to be able to understand the move towards extra-territorial strategies in EUs asylum management approach, methods are needed to capture the intersubjective meanings that have informed the political incentive for this approach (ibid.). Goldstein and Keohane (1993) indicate three different pathways in which ideas and beliefs instruct political behaviour. Firstly, ideas can serve as ‘road maps’; common intersubjective understandings simplify the environment helping to make sense of the uncertain and complex world and causal beliefs function as guidelines to facilitate action in complex situations (Finnemore & Sikkink, 2001: 405-406; Goldstein & Keohane, 1993: 12). Humans internalize and socialize the intersubjective meanings through their ongoing engagement in learning processes, which is a natural and needed habit to make sense of their complex and continuously changing environment (Finnemore & Sikkink, 2001: 405-406; Boswell, 2008: 493). Common understandings affect and determine political behaviour also in situations where unique
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equilibrium is absent, commonly shared ideas then offer focal points to build political coalitions on (Goldstein & Keohane, 1993: 12). The long-lasting implications of choices for particular ideas function as a third pathway for how ideas govern political behaviour (ibid.). Once beliefs and ideas are embedded in institutions, they embody the prevailing social norms and worldviews that created them. Institutionalized as ‘the rules of the game’ they determine the political context, thereby self-reinforcing the foundational moral values, ideas and beliefs that originally underpin the institutions.
“[…] actions taken by human beings depend on the substantive quality of available ideas, since such ideas help to clarify principles and conceptions of causal relationships and coordinate individual behaviour. Once institutionalized, furthermore, ideas function to guide action in the absence of costly innovation” (Goldstein & Keohane, 1993: 5).
“[…] Once a policy choice leads to the creation of reinforcing organizational and normative structures, that policy idea can affect the incentives if political entrepreneurs long after the interests of its initial proponents have changed” (Goldstein & Keohane, 1993:13).
The constructivist perspective that seeks to explain policy formation requires a reflective approach in the understanding of political actors. Attempting to understand the emergence and creation of (new) policies outcomes, both ideas as well as institutions are seen as endogenous factors in the process of policy formation. In other words, intersubjective understandings, world views and common beliefs construct the environment and the permissive factors for political behaviour, yet, these common shared understandings are themselves constructed in that environment as well. Therefore, in order to explain the shift in the EUs asylum and migration approach towards extra-territorial strategies and measurements, a comprehensive elaboration of the development of political mobilization will be useful because if the strategies and measures are introduced, we have a blueprint of the environment in which new policy formulation takes place.
However, though institutionalization of ideas and norms may explain patterns of political behaviour, an approach that only pays attention to the endogenous factors and processes fails to explain the changes that take place in these patterns of political behaviour. Revolutionary norms and ideas do not emerge all of a sudden, but are rather a consequence of exogenous factors or shocks (Goldstein & Keohane, 1993: 17). Dramatic political events, failures of policies and crises present great insecurity and uncertainty for humans, generating the need for new common understandings and causal beliefs on which to base new policies (Finnemore & Sikkink, 2001: 406; Goldstein & Keohane, 1993: 17). It is in these crisis situations characterised by complexity, failure, anomalies and new information that new conceptions, intersubjective meanings and beliefs evolve and additional new policies are
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“It is a widespread expectation that the more urgent and the more sizeable crises-related pressures for policy change are, the more likely it will be that a crisis will actually lead to a policy reform being adopted (see introduction by Falkner). In this view, the profound challenges faced by the EU today may be turned into an opportunity for reforming EU foreign policy” (Müller, 2016: 359)
A comprehensive construction of policy formation, thus, needs to take both endogenous as well as exogenous factors relevant for policy-formation in to account. Additionally, in order to understand why some new models are adopted and others are not during times of crisis, the pervasiveness of the ideas should also be tested and taken into account (ibid.).
The unprecedented scope of the migration movements of 2015 overwhelmed the capacity of some EU Member States, triggering an identity crisis for the EU that questioned its survival (UNHCR, 2016A.: 1; Crépeau & Purkey, 2016: 1). The insecurity and uncertainty that accompanied the refugee crisis, aggravated by the EUs failure to create a coherent and comprehensive response, potentially presents exactly the conditions that are necessary for the adoption of revolutionary norms and ideas.
The next section will describe the dominant explanations found in the literature. An overview of the relevant literature provides insight into the different explanations for the ‘turn’ towards extra-territorialisation in the EU’s asylum policies. The explanations are built on divergent intersubjective understandings that are presumed to shape political behaviour. The intersubjective ideas about the environment imply causal mechanisms that have informed the understandings of political actors in such a manner that the “advantages” of extra-territorialisation seems a reasonable and strategically-made decision as a way of coping with the effects of the refugee crisis.
2.1 Inherent paradoxes in Liberalism: The Liberal Paradox explanation
Attempting to make sense of asylum and immigration politics and their apparent accompanying contradictions, some scholars find their explanations in tensions inherent in liberal democratic (welfare) states. Being built on the fundamental norms and principles of justice, equality and freedom, liberal democratic (welfare) states also possess the moral and legal right to admit and exclude aliens, a principle that is inherent in sovereignty (Carens, 1987: 251; Gibney, 1999: 168; Nancheva, 2015: 440). The tension between these primary functions of states creates difficulties for European Member States when dealing with migration issues: the essence of the argument described as ‘the liberal paradox’ (ibid.).
In line with this school of thought, various contradictions appear in the EU’s migration approach as the EU’s hostile and restrictive migration policies seem hard to reconcile with the
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humanitarian commitment and obligations of EU Member States (Da Lomba, 2006: 81). The EU portrays itself as the protagonist of humanitarian governance: a role model for liberal norms and values: an image that seems at odds with the EU’s migration governance today (Adepoju, et al. 2010: 43). Additionally, some scholars argue that it is ethically inconsistent to promote free international movement of goods and services while restricting the free movement for people (Gibney, 1999: 171). The ‘liberal paradox’ ascribes the emergence and endurance of these contradictions within the fundamental norms of the EU as a potentially stimulating factor for states to extra-territorialize their asylum policies.
The evolution from liberal nation states towards the liberal-democratic welfare state during the post-war period provoked major changes in international immigration regulations (Zincone, Borkert & Penninx, 2011: 8; Gibney, 1999: 173). While immigration and asylum issues traditionally may not have been an issue of much political importance, the emerging welfare state changed the relation between state and citizen as it increased the rights and protection for citizens. As citizens were entitled to more rights, the distinction between citizens and non-citizen became of greater political importance (Zincone, Borkert & Penninx, 2011:8-9). Meanwhile, democratization made governments more accountable for their actions through electoral processes. Frictions arise out of the contradicting objectives: on the one hand the states have the responsibility to act in accordance with the demands of the majority of their citizens, while on the other hand they have to observe the liberal and moral responsibilities on which the liberal democratic state itself was built (Gibney, 1999: 175).
The global competitive market may have been another factor that has created competing incentives in the newly-formulated liberal democracies. International factors that accompanied globalization and the simultaneous spreading of (neo-) liberal ideas have functioned as sufficient conditions for a global market to emerge. Consequently, industrial democracies and free markets, in order to survive, need to maintain a certain level of competitive advantage while the created economic forces push states towards greater openness to trade, investment and (labour) migration (Hollifield et al, 2008: 68; Levy, 2010: 103). Labour migration was crucial for the enlargement of globalisation and free trade, based on the economic imbalance between North and South generating a pool for cheap labour (Aubarell, Zapata-Barrero & Aragall, 2009: 18). However, as Northern states responding to the economic recession have ended their labour migration programmes in the 1970s-1980s, structural demands for cheap labour remained and formal labour migration has been replaced by irregular migration (Afeef, 2006: 7; Aubarell, Zapata-Barrero & Aragall, 2009: 22-23).
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Additionally, human mobility is still viewed as a key factor for sustainable development (UN, 2016: 4). Hence, total free-trade requires a considerable degree of openness that seems to contradict the calls for tighter border controls (Guiraudon, 2000: 259; Castles, de Haas & Miller, 2014:325).
Furthermore, a rapid proliferation of international norms and values, rules and institutions were set in motion during the heydays of (neo-)liberalism (Betts, 2010: 13-15; Den Heijer, 2011: 13-14; Lavenex & Panizzon, 2013: 3). As internationally and regionally human rights legislature expanded and governments increasingly committed themselves to international humanitarian duties and obligations, states’ obligations to protect refugees increased and was collectivised (Guild, 2006: 630).
Among these advances, the highest achievement during the neo-liberal promotion of global governance, regulatory mechanisms and institutions, has probably been the development of the supranational community known as the European Union (EU). What started as a union purely for international economic cooperation, has evolved into a supranational body covering many policy areas (Europa.com, 2015; Guild, 2006: 632). In line with the liberal ideas behind the concept, the basis of the EU has been laid in its foundational treaties, resulting in a community that is based on the rule of law (Europa.com, 2015;
Slominski, 2013: 43). The foundational values, ‘human rights, freedom, democracy, human dignity and equality’, preached by its members are of equal status. These core values possess a central position within the EU being not only conditions for membership but functioning as a guide to coordination in everything the EU does (Europa.com, 2015; Rijpma & Cremona, 2007: 1-2). The important role internally performed by the rule of law and the core values produce effects that extend far beyond the internal dimension (Rijpma & Cremona, 2007: 6).
Additionally, the integration moves within the EU as the intergovernmental organization developed towards a supranational organization, have challenged Member States’ control over their national borders and territory (Kaunert and Léonard, 2012: 3). The establishment of a borderless internal Europe simultaneously increased the importance of EU’s external borders (Lanvenex, 2006: 335; Rijpma & Cremona, 2007: 6; Adepoju, et al. 2010: 43; Neal, 2009: 344).
In the early 1990s, asylum-seeker arrivals in EU rose to unexpected high numbers while the costs asylum-seekers were perceived to embody magnified in terms of political, juridical and financial investments at the same time (Gibney & Hansen, 2005:73). As a consequence, asylum increasingly came to be seen as a problem (ibid.). From the perspective
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of the liberal paradox, the problem was exacerbated by the fact that once asylum-seekers reached the states’ territory, the high human rights standards in liberal democratic states created obstacles to deporting rejected asylum-seekers, a process that becomes self-reinforcing (Gibney & Hansen, 2005: 73; Lavenex, 2006: 338; Slominski, 2013:44). The built-in rights culture of liberal democratic welfare states obliges EU Member States to offer each claimant an individual process and provide housing, medical and a subsistence-level welfare support during the assessment (Gibney & Hansen, 2005: 73). Once institutionalized, policy-makers will face constrains on their control over the process given the juridical character of the lengthy and complex legal procedures that are set in motion once an irregular migrant or refugee is present on EU territory (Slominski, 2013:44). The ‘quasi-judicial and judicial nature’ of asylum-claim processing makes the assessment a time-consuming, expensive process and unmanageable (Gibney, 2008: 150). Not only are policy-makers incapable of influencing the outcomes of the assessment of the claim, the ability to deport the asylum-seeker is further challenged by the possibility that the claimants may become ‘lost’ or ‘unreturnable’ (Gibney & Hansen, 2005: 73; Gibney, 2008: 149-154). The more time-consuming the assessment of claims becomes, the more time is offered to the asylum-seeker to become socially integrated, creating a moral basis for an asylum-asylum-seeker to remain (ibid.). Apart from these constrains, liberal democratic states also face moral, legal, financial and political constraints that limit the ability of states to deport rejected asylum seekers (Guiraudon, 2000: 259; Gibney & Hansen, 2005: 78; Gibney 2008: 149-154; Slominski, 2013:44).
Liberal states are thus challenged by the difficult task of reconciling their asylum agendas with their humanitarian obligations, addressing the practical and economic difficulties of reception while prevent the attraction of large numbers of economic migrants and adhering to powerful domestic political forces all at the same time (Gibney, 1999: 169). This might even be more problematic in the context of the embedded liberalism in the European Union. The EU’s immigration and asylum governance depended partly on EU integration and legislature in general creating a complex legal framework for refugee protection (Kaunert & Léonard, 2012: 5; Adepoju, et al. 2010: 43; Gibney & Hansen, 2005: 71).
Despite the significant progress, the policy area is still not entirely regulated on a supranational level (Kaunert & Léonard, 2012: 20). Harmonization in the field of immigration and asylum policies remains a sensitive issue as it has traditionally been seen as an area of
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intergovernmental relations evolving principles of national sovereignty and territorial control (Lavenex, 2006: 330; Kaunert & Léonard, 2012: 1). The Europeanization of the admission of immigrants and burden2-sharing questions are points of continuous contention and the EU policies continue to fail in achieving more solidarity amongst Member States (Lavenex, 2006: 336; Kaunert & Léonard, 2012: 14;18).
The limited achievement made in the attempts towards effective burden-sharing (ibid.; Gibney & Hansen, 2005: 82; Thieleman, 2004: 48) are in stark contrast with the progress made in cooperation between EU Member States on policies to restrict and control migration (Lavenex, 2006: 337). While complexity and sensitivity formed obstacles for far- reaching normative and legal frameworks on burden-sharing, considerable achievements have taken place in the ‘Europeanization’ of restrictive measures and advances have been made in the externalization of asylum policies in particular (ibid.).
Governments perceive their obligations towards the protection and the rights of refugees as being essentially territorial in character (Den Heijer, 2011: 298; Betts, 2010: 25), hence the liberal paradox exists primarily within the borders of the liberal democratic state. The moment an individual enters a territory the individual enters the jurisdiction of that state becoming subject to the legal system of that state including the protection obligations under international and domestic law (ibid.; Hathaway & Gammeltoft-Hansen, 2014: 241; Tijhaar, 2016). Extra-territorial asylum policies extend and enforce nations’ border control measures which enables states to circumvent their protection duties conventionally incurred when asylum-seekers present themselves at the states’ border (Gibney & Hansen, 2005: 74-75; Den Heijer, 2011: 299). By externalizing the EU’s asylum policies Member States try to prevent and deter asylum seekers from arriving at EU borders (Den Heijer, 2011: 299). In effect refugees remain officially included in the EU’s rights system, yet the restrictions on their movement actually exclude them from the EU’s territory (Guild, 2006: 633). As Hathaway and Gammeltoft-Hansen (2014) describe, these tendencies given rise to the politics of non-entrée: "[…] Whereas refugee law is predicated on the duty of non-refoulement, the politics of non-entrée are based on a commitment to ensuring that refugees shall not be allowed to arrive. Over the last three decades, even as powerful states routinely affirmed their commitment to refugee law, they have worked assiduously to design and implement non-entrée policies that seek to keep most refugees from accessing their jurisdiction, and thus
2 Interpreting the costs that are associated with (irregular-) immigration and asylum seekers as a ‘burden’ on states, should not be seen as a
representation of a fact but rather a particular way of looking at and dealing with the effects of immigration (Crépeau & Purkey, 2016: 28; Betts, 2015: 366). Representing irregular migration as a burden is problematic as it “[…] legitimises the further securing of borders and engenders negative public attitudes” (ibid.). However, the consequences of (irregular-) migration are, unfortunately, often expressed and experienced by states as a ‘burden’ in the negative sense, and therefore, as this section attempts to explain states policy incentives this is the perspective that will be used here as well.
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being in a position to assert their entitlement to the benefits of refugee law” (Hathaway & Gammeltoft-Hansen, 2014: 241).
In short: the glory days of (neo-)liberalism have challenged classical citizens-state relations, raised humanitarian obligations both internationally and domestically, produced economic push-and–pull factors and made governments more accountable. The enlargement of domestic, regional and international legalization in human rights and social policies have increased the costs states experience when they are confronted with large arrivals of refugees and asylum-seekers (Gibney & Hansen, 2005: 72). The EU presents itself as a “community based on the rule of law” (Rijpma & Cremona, 2007: 21; Noll, 2003: 340; Levy, 2010: 98-102) and has committed itself to principles of openness, justice and freedom of movement (Carens, 1987: 271). However, while harmonization within the EU resulted in the deterritorialization of the sovereignty of EU Member States towards the supranational body, EU Member States deterritorialized their protection obligations as well (Guild, 2006: 631; 637). Through outsourcing and externalizing asylum and border management, governments attempt to reduce the number of arrivals and avoid incurring responsibilities under the Refugee Convention and the other domestic, international and supranational legal instruments that follow from embedded liberalism (Gibney & Hansen, 2005: 74-75).
2.2 Threat under Construction: The Securitization explanation
Another dominant approach in the asylum-policy literature connects the emergence of restrictive and extra-territorialisation asylum policies with the construction of asylum-management as national security issue (Bigo, 2002: 63). The ‘securitization’ of asylum politics started in Europe in the 1980s and early 1990s when the EU saw a dramatic rise in the number of arriving asylum seekers3 (Afeef, 2006: 7-8; Levy, 2005: 26; Gibney & Hansen, 2005: 71). International immigration became of greater political significance in Europe and migration increasingly came to be perceived as a problem in need of control (de Haas, 2011: 4; Kaunert & Léonard, 2012: 2; Thieleman, 2004: 47; Afeef, 2006: 7-8; Levy, 2005: 32-33). The emergence of an anti-immigration discourse accompanied the large influx of applicants, reinforcing the idea of a ‘failed asylum system’ and the criminalization of irregular migration (Afeef, 2006: 7-8; Levy, 2005: 32-33).
According to securitization theory, politicians and security specialists (or “security professionals”) try to securitize the issue by identifying an area in political life as being under
3 Different factors have contributed to the rise in the numbers of asylum seekers arriving in Europe during these years (Afeef, 2006: 7-8;
Levy, 2005: 32-33). While the Balkan Wars and the end of the Cold War forced people to flee their homes, generating large flows of refugees, the EU also ended their guest-working programmes which has limited entrance possibilities for economic migrants (ibid.). Globalization processes also functioned as a contributing factor by opening new options for (irregular) travelling methods. Another stimulus, according to Gibney and Hansen (2005) was the ratification of the 1967 Protocol as it extended the Refugee Convention to the rest of the world so that more people became eligible for refugee protection (Gibney & Hansen, 2005: 71). These factors might all have had contributing effects to the increase in applications in EU (Gibney & Hansen, 2005: 71; Afeef, 2006: 7-8; Levy, 2005: 32-33).
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threat (Bigo, 2002: 63; Neal, 2009: 335; Kaunert, 2009: 149). Political issue-areas which are seen as being fundamentally threatened demand protection measurements, providing politicians political room to establish contentious legislation that otherwise would not have been deemed possible in a liberal democratic state (Neal, 2009: 335). However, the effectiveness of securitization initiatives is also contingent on the “[…] institutional and political authority for their statements to contribute to the shaping of political and social relations” (Neal, 2009: 335). The ‘securitizer’ not only needs substantial political authority so that it is capable of constructing a credible threat, the securitizer needs to convince the general public as well. Securitization represents purposeful efforts by politicians in which discourse is deliberately deployed to attribute intersubjective meanings to issue-areas (Bigo, 2002: 63; Hyndman & Mountz, 2008: 254; Neal, 2009: 335; Kaunert, 2009: 149). Yet, there is at least some common ground and understanding needed between the speaker and the audience in order to successfully securitize the matter (Neal, 2009: 336). The materialization of concerns over asylum in the 1980s and 1990s has thus offered the ‘security professionals’ an opportunity to deliberately make political use of fears in relation to migration, thereby enabling government officials to construct a state of emergency in which far-reaching legislation became possible (Hyndman & Mountz, 2008: 251; Gibney, 2008: 155-157).
Additionally, others within the securitization paradigm stress the end of the Cold War as another contributing factor because it has marked the disappearance of direct threats which has provided the room necessary for constructing new security concerns (Bigo, 2002: 64; Afeef, 2006:8). The end of the Cold War enabled politicians and security specialists to present uncontrolled migration as a societal and cultural threat, by linking irregular migration to other security concerns such as terrorism, organized crime and Islamic fundamentalism (Lavenex, 2006: 330; Bigo, 2002; Guiraudon, 2000: 260). In the wake of 9/11 the process of securitization further intensified as the link between irregular migration, security and borders with terrorism was a common theme (Levy, 2005:39-41; Lutterbeck, 2006: 59; Neal, 2009: 339). The securitization of irregular migration has been accompanied by the criminalisation of irregular migrants (Crépeau & Purkey, 2016: 28; de Haas, 2005: 1281). The criminal conceptualisation of irregular migration in turn affected the realisation of their fundamental human rights, because the criminal-frame has legitimized a limited access to justice and social protection for this ‘category of people’ (Crépeau & Purkey, 2016: 28).
Furthermore, the ending of labour recruitment programmes in Europe and in particular those for low skilled migrants, limited the possibilities of entering the EU in a regular fashion
15
for these groups. While migrants continued to arrive in Europe they increasingly entered through the asylum route, offering a breeding ground for ideas of “bogus asylum seekers” potentially “abusing the system” and a failed asylum system in general (Levy, 2005: 34-35; Gibney, 2008: 155-157).
Concurrently, concerns over human smuggling, trafficking and organized crime advanced as the death toll of ‘would-be migrants’ seeking to reach the EU swelled (Lutterbeck, 2006: 63). This has given additionally opportunities for framing irregular migration as a humanitarian problem as well (Lutterbeck, 2006: 63). The humanitarian frame permitted politicians to legitimize contentious policy initiatives on humanitarian grounds and as a necessarily measure for the long-term survival of the asylum system (ibid. Gibney, 2008: 167).
Issues of migration and asylum became of greater importance for European Member States through the construction of a negative image of the asylum seeker and by linking irregular migration and asylum seekers with terrorism and organized crime (Levy, 2005: 31; Neal, 2009: 344-346; Menjívar, 2014: 355). Neal (2009) stresses the symbolic discursive use of the ‘outside’ in the process of securitization. Constructing the threat as a danger coming from the outside simultaneously creates internal political unity by “[…] placing it in an existentially hostile environment and asserting an obligation to free it from the threat” (Neal, 2009: 339). Through securitization the securitizer not only problematizes the current situation, it also identifies administrative and political measurements needed to counter the threats (Neal, 2009: 340).
However, the EU institutional setting differs substantially from that of a nation state, making it harder for securitizing incentives to achieve the anticipated outcomes (Neal, 2009: 346). In comparison, the communications and statements of the institutions of the European Union look rather different:
“[…] they are not widely reported and they are often little debated beyond a very narrow specialist audience. […] The institutional structure of the EU has a particular bearing on questions of securitization. The complex technocratic nature of political, legal and institutional processes in the EU means that policy outcomes may not resemble ‘securitizations’ along the lines assumed by securitization theory” (Neal, 2009: 336-337).
Therefore, it is argued that EU’s continuous efforts to raise asylum and migration containment is rather the result of the institutionalization of a ‘governmentality of unease’ than a drastic response to a state of exception resulting from particular securitization ‘speeches’ (Neal, 2009: 352). Alternately, securitization of asylum and migration in the EU was more the result of a complex norm-changing process that was established through implicit usage of
16 knowledge and techniques in the governance of EU itself (ibid.).
The importance of migration and asylum rose for general public policy and on the EU-policy agenda, creating a climate in which curbing irregular migration at the earliest possible stage became one of the primary objectives of EU policy-makers (Slominski, 2013: 44). As a consequence of the securitization efforts, refugee protection and asylum policies were seen in terms of concerns over humanitarian and security issues, thereby shifting it from the domain of human rights to an issue of national security (Lutterbeck, 2006; Hyndman & Mountz, 2008: 251). The threat of refugees and asylum-seekers came to represent a state of unease thereby offering political room to initiate ‘extra-ordinary’ methods in response (Neal, 2006: 337). According to securitization theorists, the contentious and ambiguous asylum and migration policies, such as militarization of border management and extra-territorial measures, can be explained by the social construction of threats and the deliberate political use of fears (Hyndman & Mountz, 2008: 251). The deliberate politicization and securitization of asylum seekers and refugees created the intersubjective frame in which it is understood: the human rights frame and its corresponding obligations and duties for states has evolved into a frame of national security, demanding extraordinary measures to combat the problem. The shift from a legal frame towards the political frame procured the context in which extra-territorial asylum policies became a legitimate and necessary alternative. Though the securitization of asylum and migration in Europe potentially have been the result of a slow, complex norm-changing process, shocking events -such as the Paris attacks of November 2015- undoubtedly offered additional content for politicians in placing the refugee crisis in a security framework (Speedie & Kiwan, 2015).
2.3 Free-rider dynamics: The Game Theories & Two Level Games explanations
The harmonization within the EU over the resettlement programmes and other options for burden and responsibility sharing have been points of contention (UN, 2016: 10; Lavenex, 2006: 336; Betts, 2010: 19). Classical game theory presents another angle from which the difficulties experienced by the EU’s cooperation on asylum policies can possibly to be interpreted, thereby assuming international refugee protection as a global public good lacking a central authority for regulation (Betts, 2008: 157; Thielemann & Armstrong, 2013: 151). The collective action problem approach in refugee protection draws on traditional International Relations theory dealing with the difficulties inherent in the provision of global collective goods. According to this approach states prefer to free-ride on the contributions of other states, in situations where the global community benefits as a whole from contributions
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of one state to the global public good, and no binding institutional mechanism regulating the provision of the collective goods exists (Betts, 2008: 160; Thielemann & Armstrong, 2013: 151). The result of the free-riding dynamics is the inequitable distribution of costs observed in the provision of collective goods (ibid.).
Thus, whereas, from the perspective of the liberal paradox the obstacles to harmonizing EU asylum policies and creating a burden-sharing mechanism are to be found in the sensitiveness that states experience regarding their loss of sovereignty4, according to game theory, the harmonization of asylum policies within the EU is hampered by the costs associated with providing refugee protection, as they stimulate incentives for Member-States to free-ride. “[…] States incur significant costs both at the initial assessment stage and once the refugee status is granted, as both stages trigger entitlements for the individual migrant” (Thielemann & Armstrong, 2013: 151). States obligations towards refugees and irregular migrants remain geographically fixed as the obligations are limited to their own territory. This creates an incentive for Member States to unilaterally employ restrictive and deterrence policies seeking to deter refugees, attempting to limit the costs affiliated with the duties and responsibilities towards refugees (ibid.).
The free-rider dynamics following from collective action problems offers a conceivable explanation for the EU’s inability to create a system for burden-sharing and internal solidarity and for the disproportionate burden experienced by the EU external border states (Thielemann & Armstrong, 2013: 151; Betts, 2008: 160). According to Gibney (1999) the problem of the disproportionate burden is further exacerbated by carrier sanctions and visa restrictions as those states that are unable to insulate themselves from refugee movements, will receive a disproportionate number of entrants (Gibney, 1999: 170). A similar collective action problem arises around fears of secondary movements within the EU also known as ‘asylum-shopping’ (Thielemann & Armstrong, 2013: 151). Traditional public goods approaches predict a situation in which the EU’s external border states are forced to make the highest contributions, while those Member States which relatively speaking possess the greatest capabilities are willing to provide the biggest contributions and the residual states will tend to free-ride (Thielemann & Armstrong, 2013: 151-152). As long as the international community lacks a mechanism for burden-sharing the classical game theory perspective predicts the endurance of difficulties in the provision of refugee protection as collective goods and foresees suboptimal results in cooperation remaining (Betts, 2008: 160). Thus, instead of burden-sharing what appears to happen within the EU context better suits the description of
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‘burden-shifting’; “[…] Burdens are shared when they are consensually redistributed in a manner that is fair to all countries involved […], burdens are shifted when they are redistributed by one country to other countries unilaterally and/or in an unfair manner” (Taylor, 2005: 32).
On the other hand, while analysing North-South relations in reference to refugee protection Betts (2008) argues that the dilemma for states in their contributions to collective goods is more appropriately represented by the analogy of a “suasion-game” situation (Betts, 2008: 157). As the overwhelming majority of world’s refugees generally remain in Southern states, these states bear the overwhelming part of the burden associated with the protection of refugees (Betts, 2008: 159; UN, 2016: 6). In the absence of a global responsibility sharing mechanism, the commitment of Northern states to delivering support remains subject to their own priorities and interests (ibid.). So far these structural imbalances expose a similar situation as described above in a European context, as Northern states will have a perverse incentive […] to allocate far more resources toward exclusion and deterrence policies than toward support for refugee protection in the regions of origin” (Betts, 2008: 159), resulting in a suasion game, characterized by its asymmetric interests and power relation dynamics (ibid.).
However, Betts (2008) argues that collective public goods do not exist in isolation, but are rather interconnected with a wide range of other policy areas, suggesting strategies to overcome collective action problems (Betts, 2008: 157). Furthermore, international refugee protection does not always present merely a burden for states, as it entails (strategic) interests and functions for states as well (Betts, 2008: 160). The wide range of international cooperation initiatives offers an opportunity to create issue-linkages between the refugee issue and states’ perceived interests in other political areas, such as security and development which in turn increases the perceived interests for Northern states in their contribution to provisions, creating a better distribution of the burden (Betts, 2008: 174; UN, 2016: 12; 23). Although the argument addresses the relation between the ‘North’ and ‘South’ on a global level, one may assume a similar suasion game situation in cooperation on asylum policy between EU Member States.
At the same time, contrary to the positive outcome of the suasion game, the establishment of rules and norms and their unintended side-effects may operate in a more negative direction as well (Betts, 2010). The proliferation of diverse institutionalized rules and norms (international regimes) since the Refugee Convention 1951 in the issue-area of human mobility has led to an increasingly complex global migration and asylum regime
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(“travel-refugee regime complex”) (Betts, 2010: 27). Some of these new institutions have overlaps with the refugee regime, sometimes they exist in a complementary fashion, while moreover a contradictory relationship is possible as well. Hence, though regime complexity potentially constrains states, it may also offer opportunities for issue linkage5 and regime-shifting (Betts, 2010:15-21).
Concerns over irregular migration and organized crime has led to the securitization of human mobility, stimulating international cooperation intended to limit the spontaneous arrival of irregular migrants (Betts, 2010: 16). As international cooperation on the issue institutionalized, the result was the establishment of a ‘travel-regime’ comprising a broad range of agreements and rules such as (among others) carrier sanctions, visa-restrictions, within the EU Schengen and Dublin Regulation (Betts, 2010: 24). While officially intended to control and manage border-crossings, the travel-regime complex has multiple overlaps with the ‘refugee-regime’, in particular the ‘spontaneous arrival of asylum seekers’ (idem: 26). The overlap offers Northern states opportunities to manipulate obligations for the established travel-regime in such a way as to enable the states to bypass their obligations attached to the refugee-regime (Betts, 2010: 26). International ‘regime complexity’ thus presents occasion for issue-linkage opportunities to engage in regime-shifting, which enables them to circumvent their obligations under international law without openly violating them (Betts, 2010).
Guiraudon (2000) making a similar point, suggests that internationalization of migration control presents a strategy for nation states, by offering a “policy venue” that allows the state to adapt more restrictive migration policies (Guiraudon, 2000:268). International cooperation in the field of migration policy and legislature presents a venue for nation states to bypass their institutional and material constrains at domestic levels. The flexible character of the international system offers an attractive opening, given the high barriers for restrictive and deterring asylum policies at the domestic level (idem: 267). The tactical use of the interaction between the international and the domestic level to achieve advantageous positions at one of these levels and strategically influence policy outcomes, fits the two-level game approach introduced by Putnam (1988).
This argument could also be interpreted as a consequence of the logic underlying the liberal paradox, given the emphasis on the domestic constraints resulting from the constitutional foundations of the liberal democratic states that forms the main stimulus for states to strategically engage in international or European cooperation as it offers an opportunity for them to circumvent these obstacles (Lavenex, 2006: 332). Although the
5 Issue linkages is a strategy states deploy in order to overcome collective action problems and failures (Betts, 2008: 161). It is understood
here as; "a state's policy of making its course of action concerning a given issue contingent upon another state's behaviour in a different issue-area” (Stein, 1980, via: Betts, 2008: 161).
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explanations described in this section are seen as examples of ‘game-theories’, the exact arguments differ and the theories of venue-shopping could also be understood in a liberal-paradox perspective. What connects them is the fact that they all problematize contradictory factors inherent in the various rules and regimes, while their emphasis on collective goods, burden-sharing and the lack of solidarity is what makes them differ from the liberal paradox explanations. The free-riding incentives that emerge from an absence of responsibility-sharing mechanisms creates a perverse incentive for Member States which strive to avoid their obligations by either engaging in burden-shifting or in regime-shifting. Likewise, from a game-theory perspective, by expanding the scope of the bargaining range beyond a single issue-area (offering protection and asylum in the EU) through linking it to other previously unrelated issue-areas (such as development-assistance and refugee protection in the region of origin) the collective action failure can be overcome as appeals to the interests of more state actors (Betts & Milner, 2006: 11).
2.4 The Problematic Character of the EU: The Deficiencies in EU Institutions explanation
Another dominant explanation for the EUs failure to develop a coherent response to the crisis within Europe, connects the issue with broader deficiencies in the institutional character of the EU. The central claim in this approach is that the unresolved dysfunctions of incomplete EU systems impede a common and coherent approach in the EU, in particular in situations where the EU faces a crisis such as contemporary refugee crisis (Collette, 2015; Lehne, 2016).
The formation of the European Union has created a new structure for transnational political organization that does not fit traditional national and intergovernmental structures of governance, yet, the EU is also not entirely supranational organized yet (Kaunert & Leonard, 2012: 5; Mayntz, 2003: 34). Although significant steps towards the integration and harmonization of the European Union have been taken, traditional divisions over key questions between Member States remain, pertaining further supranationalization of the Union (Müller, 2016: 361; Nancheva, 2015: 443; Lehne, 2016). Great diversities of interests and social attitudes among Member States and concerns over sovereignty remain, sustaining a general resistance to the supranationalization of essential issues. In particular, those policy domains involving core functions of sovereign government, such as foreign and defence policy (Müller, 2016:365) and migration (Lehne, 2016: Nancheva, 2015: 443; Genchell & Jachtenfuchs, 2013: 2).
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The EU’s institutional organization reflects this resistance, as it manifests all forms of governance at once, creating a situation where the EU is unable to act in a coherent, decisive, coordinated manner due to the built-in institutional constraints, whilst the individual member states lack the ability for effective action on a national level (Müller, 2016: 360). The stagnation in the Europeanization project in crucial policy-areas, thus, not only impedes an effective coherent approach to the supranational EU level, but those rules and institutions that are supranationally organized hamper an exclusive regulation of asylum and migration on the national levels of the Member States (Lehne, 2016: Nancheva, 2015: 452). Unilateral national approaches have become insufficient and undesirable and subject to severe criticism under the guise of presenting a threat to the survival of the Schengen system and even threatening the endurance of the Union in general (Lehne, 2016;). Being more than a regime, but not a federal state, the EU-structure is now designed as one of multilevel governance (Kaunert & Leonard, 2012: 5; Mayntz, 2003: 34; Grabbe & Lehne, 2015: 11-12) that needs to take the interests of the stakeholders into account. The result is a cumbrous apparatus, supposed to give every Member States a say (Grabbe & Lehne, 2015: 11-12).
The complexity and institutional culture of the EU systems result in decision-making procedures and policy outcomes6 that often lack democratic legitimacy or accountability and have made EU policymaking inefficient and inert (Nancheva, 2015: 443; Grabbe & Lehne, 2015:10-13). Both citizens and national governments have pushed for more efficient and swift legislation and policymaking on the EU level, which gave new impetus to ‘trialogue procedures’7 that consequently further reduced the level of transparency in policy making (Grabbe & Lehne, 2015:13).
Traditionally, the EUs modus operandi when dealing with political disagreements, crisis situations or political blockage has been to reframe the issue in a technical topic that demands expert knowledge. The reframing of matters into an item that requires technocratic expertize, calls for managerial approaches with little public discussion and therefore offers an opportunity to purposefully maintain the topic below the political radar (Grabbe & Lehne, 2015: 10-11; Mayntz, 2003: 33; Müller, 2015: 359). This strategy subsequently opens a political context that permits the EC to decide on the matter (Lehne, 2016; Mayntz, 2003: 33). The EC, which is relatively much less exposed to the dynamics of party political mobilisation
6 The Treaty of Lisbon was an attempt to generate more accountability and legitimacy for the Union, by increasing the functions and the
powers of the EP. However, it has not really been effective in altering the perception of the apparatus as the majority of EU citizens still do not feel connected to the Union and continue to question its democratic legitimacy and accountability. This is partly a result of the complexity and ambiguity of the various institutions and decision-making structures that are built-into the EU institutional architecture (Grabbe & Lehne, 2015)
7
Trialogue procedures -informal meetings between the representatives from the EC, Council of Ministers and EP- are being valued for effectively bringing all interests together and becoming the default method to decide on proposed legislative issues (ibid). However, the method is criticized for lacking democratic transparency and accountability as they “[…] happen behind closed doors, with no public access and no minutes taken” (Grabbe & Lehne, 2015:13).
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or claims stemming from domestic public opinion (Boswell, 2008: 494), is capable of adopting common EU solutions even against competing Member States interests (Müller, 2016: 367).
However, the EUs normal strategy of “[…] defusing political problems through extended technocratic discussions” (Lehne, 2016), is not feasible in situations that are of great prominence to the citizen (ibid.). Issues of great salience require full consensus in the intergovernmental decision-making on the EU level, forcing Member States to approach the issue from the perspective of domestic politics (ibid.; Mayntz, 2003: 33). Given the great political significance of migration and asylum topics, the strategic technocratic approach on the supranational level proved impossible (Lehne, 2016).
At the same time, the fragmentation of European communities over issues of migration and asylum still reflect old divisions and traditional discrepancies along national lines, hampering a common understanding among European states on such essential issues (ibid.; Nancheva, 2015: 443; Müller, 2015: 365). As a consequence of the weakness of the European centre and the requirement of full consensus in intergovernmental decision-making (Genschell & Jachtenfuchs, 2013: 2), the EU Member States find themselves in a ‘decision-trap’ continuously failing to agree upon a credible and comprehensive system for the sharing of responsibility8 (Lehne, 2016; Nancheva, 2015: 443; Müller, 2015: 365).
Besides the political sensitivity of the issue hampering any collective comprehensive framework, other institutionalized deficits form additional obstacles for further Europeanization. The contemporary framework for EU refugee protection, consisting of a set of standards the Member States did manage to agree on, lack an effective monitoring instrument to ensure adherence. The failure to secure a common standard of protection across the EU is problematic because the discrepancies in the implementation among Member States work counterproductively, only exacerbating the disproportionate distribution of the burden and further decreasing solidarity among the EU Member States (Nancheva, 2015: 445; Collett, 2015; Levy, 2010: 105-107; Langford, 2013: 223-225).
The Dublin Regulation is criticized for lowering the level of solidarity in particular (Langford, 2013: 223; Nancheva, 2015: 444). The Regulation, which assigns the responsibility for processing and protection of asylum claimants to the country through which an asylum seeker first arrives9, has been often condemned for potentially stimulating the perverse incentive to lower protection standards creating severe conditions during assessment of status of applicants and decreasing admission rates, in order to deter prospective asylum
8
The skewed focus on regulatory integration and limited achievements in building of shared capacity in EUs policies demonstrate Europeans weakness for the creation of capacity building structures; “EU institutions regulate how member states exercise their core powers but hardly build up capacity to exercise such powers -no EU army, tax or public administration” (Genschell & Jachtenfuchs, 2013: 2)
