Competing Understandings of Protection in the European ‘Migrant Crisis’

This essay is part of a series that explores the human costs and policy challenges associated with the displacement crises in the Mediterranean and Andaman Seas. The essays consider the myths or misconceptions that have pervaded discussions about these two crises, as well as the constraints or capacity deficiencies that have hampered the responses to them. See more ...
 

No European government has made any substantial reference to the ‘Responsibility to Protect’ principle (R2P) during the current migrant crisis. This is remarkable since the crisis, which has gone on for the past five years, is mainly due to displacement of people fleeing from mass atrocities and crimes. At the same time, several European governments are using the word ‘protection’ with reference to European citizens and borders to justify the need of a ‘fortress Europe’. The world ‘protection’ has probably never been more popular in post-cold war Europe. At the same time, the word seems to have lost its association with R2P since the principle’s inception ten years ago.[1]

What are the implications for R2P? And what does it tell about European politics in general? In the following essay, I will try to answer these questions by arguing that the lack of reference to R2P can be read as a sign that the paradigm of protection embodied in the R2P norm is challenged by a more traditional conception of protection rooted in well-established understandings of domestic sovereignty and national identity.

Two Paradigms of Protection

On the one hand, ‘protection’ in regards to R2P seems to be invoked mainly in relation to foreign policy, as in the case of the mass atrocities committed by the Libyan regime in 2011. This is despite the fact that European states differ in the way they understand R2P. Germany, for example, pushes for a non-coercive and consensual understanding of R2P, and in fact chose to abstain when the U.N. Security Council approved Resolution 1973 on Libya. Other European nations instead consider R2P as a norm that allows them to overcome the ethical dilemmas of forceful humanitarian intervention.[2] Contrary to Germany, France has referred to R2P when announcing military interventions in Mali and in the Central African Republic in 2013. In the same year, the U.K. parliament made reference to R2P when discussing possible military intervention in Syria.

This paradigm of protection builds on a cosmopolitan understanding of international politics and tries to redefine the meaning of state sovereignty. The Westphalian idea of sovereignty allowed princes and kings to do more or less anything they wished within their realms. This was a notion of sovereignty as “dominium.”[3] R2P supporters, such as Francis Deng,[4] Roberta Cohen[5] and Kofi Annan,[6] have instead called for the framing of sovereignty as a responsibility. Deng, Cohen, and Annan call for a sovereignty that is conditional to the sovereign state’s capacity to protect its own citizens from four crimes: genocide, ethnic cleansing, war crimes, and crimes against humanity.

On the other hand, ‘protection’ has been invoked with a reference to E.U. countries’ responsibility towards their own citizens and in relation to socioeconomic, cultural, and security threats associated with the current influx of migrants and ineffective border control. This latter paradigm of protection builds on democratic and communitarian interpretations of sovereignty, where a strong distinction is made between citizens and noncitizens. For example, following the attacks in Paris in November 2015, President Francois Hollande stated that France has a simultaneous duty to ensure ‘humanity for refugees and protection of the French people.’[7] Even German Chancellor Angela Merkel, nominated Time Magazine 2015 Person of the Year for her audacious ‘open door’ policy, has declared that Europeans need to ‘above all, protect our external borders across Europe.’[8] British Prime Minister David Cameron used a similar argument also in relation to foreign policy, and specifically when arguing that bombing ISIS was needed “because of a government's first duty: the responsibility to protect its citizens.”[9]

R2P and the Protection of Refugees

The emphasis placed by several European leaders on a communitarian paradigm of protection and the lack of reference to R2P in the current refugee crisis have to be taken seriously. This tells a fascinating story of how cosmopolitan and communitarian values compete with one another; it also sheds light on the challenges of the R2P norm in Europe—and beyond. The meaning and practice of R2P has evolved substantially since the U.N. General Assembly approved its foundational document in 2005.[10] In particular, the meaning of R2P has been dramatically shaped by its implementation in Libya as well as by the following contestation of that intervention.[11] However, the silence surrounding the norm suggests that there are fundamental obstacles to its very future. Significantly, the contestation of the norm following the intervention in Libya mainly addressed the so called third pillar of R2P, that is, the international community’s responsibility to intervene forcibly if a state fails to protect its population. The lack of reference to R2P during the migrant crisis suggests a limited institutionalization also of the second—and generally less contested—pillar of the norm that insists on assistance, aid, and capacity building.

The connection between states’ and the international community’s responsibility to protect and states’ duty to provide safe passage and asylum was a building block of the R2P implementation report.[12] This crossroads of responsibility and the ensuing doctrine generated expectations among refugee and internally displaced people (I.D.P.) advocates that R2P would be highly beneficial to their cause.[13] The current developments of the refugee crisis in the Mediterranean seem to defy those expectations.

The lack of reference to R2P in official statements and documents relating to the migration crisis should not be disregarded on the basis of the fact that such references would merely be rhetorical. In fact, it is important to recognize that, within the R2P framework, rhetoric is action. It is one diplomatic tool among many, and can be seen as an indicator of ‘programmatic implementation’[14] of the norm. The three-pillar structure of R2P requires a sequencing of action where the international community should—before anything else—react to developments on the ground by delivering statements to remind states of their responsibility towards their own citizens and to offer assistance. Moreover, in the case of most E.U. members, the lack of a programmatic implementation of R2P also comes with a scarce operationalization of the norm.

European Responses to the Crisis

In its 2015/16 report, Amnesty International noted that crimes against humanity and war crimes are unfolding in 19 countries.[15] Amnesty International also accuses 30 governments of violating the human rights “through criminalization of asylum-seekers, refoulement, push-backs and removal to other territories, and through various state actions that amounted to denial of access to an asylum process.”[16] Furthermore, the report explicitly denounces the “retreat of responsibility for refugee protection, as countries bickered about ‘border protection’ and ‘migration management’ rather than taking decisive action to save lives.”[17] These accusations build on official documentation from E.U. institutions and the U.N. High Commissioner for Human Rights as well as reports from other non-governmental organizations. The report even targets some European governments directly and openly. To mention but a few, Amnesty International has accused the Bulgarian police of summary push-backs of refugees at the border with Turkey, additionally it accuses Cyprus of illegally detaining, ill-treating and deporting asylum seekers. The Czech Republic is also accused of refusing any kind of refugee relocation and degrading treatment of refugees in detention centres. France is named for not taking action against instances of violence, harassment, and ill-treatment of asylum-seekers and refugees by law enforcement agents in Calais. Greece is accused of practicing violent push-back at the Greek-Turkish land and sea borders; and Hungary of breaching the E.U. asylum law by sealing off of its borders completely.

Several other organizations and analysts agree with Amnesty International that European leaders have consistently failed to address the crisis, by leaving Italy, Greece, and Spain to deal with the problem. European leaders have also been accused of not providing a replacement for the Italian Navy’s Mare Nostrum search-and-rescue operation and instead expanding, very late, the E.U. border agency Frontex’s maritime border control, Operation Triton. The latter reduced the death rates along the central Mediterranean route by 9 percent, but neglected the Aegean Sea and framed the whole issue as a border protection problem. Thus while E.U. member states are found violating international legal provisions for refugees, E.U. institutions do not perform any better. Stopping the influx of refugees has been the objective of most European summits in 2015. Among the measures approved, it is worth mentioning the creation of a list of safe countries of origin, to which asylum-seekers can be returned after expedited proceedings; the strengthening of Frontex with expulsions capacities; and the joint action plan with Turkey. The latter outsourced to Turkey the control of the Greek border and the responsibility to take back and process all migrants arriving in Greece after March 20, 2016. This in exchange for 6 billion euros in aid for Turkey’s resident refugee population, resettlement of a maximum of 72,000 Syrian refugees from Turkey to Europe, and faster progress on E.U. membership talks.[18] In none of these European summits did R2P enter the political debate as a normative reference for action. Conversely, however, the word ‘protection’ has been increasingly linked to borders and E.U. citizens’ rights to social welfare and security.

A notable exception to this rule is given by the repeated references to the responsibility to protect made by the High Representative of the Union for Foreign Affairs and Security Policy, Federica Mogherini since the summer of 2015. In several speeches and official statements Mogherini has underlined what is at stake in the migration crisis:

Our deepest values (…). That’s it. Our responsibility to protect human life and human rights. Solidarity, among Member States and towards those who are most in need. But this is also a test for our international credibility. Don’t think we can sponsor human rights around the world if we don’t guarantee the highest asylum standards inside our Union.[19]

Mogherini’s speeches are even more outstanding as she not only refers to a responsibility to protect refugees, but migrants in general.

Refugees and Migrants

In fact, European governments are not only disregarding R2P in the contexts of the crisis, but also supporting the need of a ‘fortress Europe’ by underlining that the Mediterranean crisis is not a refugee crisis, but a migrant crisis. Paradoxically, in their attempt to make R2P relevant in the current crisis, R2P supporters tend to accept such distinction between refugees and migrants and support the refugee regime. This is inconsistent, since upon closer scrutiny, the distinction is at odds with some of the core principles of cosmopolitanism. It seems that competition between the two above-mentioned paradigms of protection is contributing not just to limit the political relevance of the R2P norm, but it is also playing more broadly against bold cosmopolitan understandings of politics. From a cosmopolitan perspective, the distinction between migrants fleeing from poverty and refugees is highly problematic. Pogge[20] and Blunt,[21] for example, have recently argued that the causes of global poverty meet the definition of crimes against humanity as defined in the Rome Statute of the International Criminal Court. Following them, global poverty constitutes a violation of basic human rights because it “decimates the capacity of human beings to live minimally autonomous and worthwhile lives.”[22] Blunt argues that global poverty should be seen as the product of a situation of domination and asymmetric distribution of power in the international state system. Calling global poverty a crime against humanity implies that it requires immediate responses and not just long-term strategies to reduce global inequalities—which is why R2P and the associated responsibility to provide safe passage and asylum would be relevant to this discussion.

Conclusions

Following this view, one might indeed argue that R2P should serve as a framework to also protect populations from extreme poverty. However, this is not the current position of R2P advocates, who are instead among the first to emphasize the existing distinction between migrants and refugees. The Special Adviser at the Assistant Secretary-General level on the Responsibility to Protect, Jennifer Welsh, for example, distinguishes between irregular migration and shock migration.[23] The latter, “which more directly relates to the acts covered by R2P, concerns the response to refugees and displaced persons fleeing persecution and widespread violence.”[24]

The R2P norm is shrinking not just under communitarian attacks on pillar three and two, but also due to restrictive interpretations of the four crimes it should protect individuals from. This can be understood as an attempt to keep the norm as politically relevant and actionable as possible. Still, it is worth noting that this also means that R2P is gradually losing its revolutionary potential and progressively retreating to more conservative cosmopolitan positions.

The Mediterranean refugee crisis appears to shed a light on current challenges to the R2P norm. Instead of emerging and expanding—as had appeared to be the case at the time of the U.N. resolution on Libya—the norm looks now to be receding in the face of strong competition from what I have called a “communitarian paradigm of protection.” The decisions E.U. members states and institutions will make in the next months to manage the migrant crisis might have a decisive impact on the fortune of the norm.

[1] United Nations General Assembly, Resolution 60/1, “2005 World Summit Outcome,” October 24, 2005.

[2] See, for example, S. Brockmeier, G. Jurtz, and J. Junk, “Emerging Norm and Rhetorical Tool: Europe and a Responsibility to Protect,” Conflict, Security and Development, 14:4 (2014): 429-460.

[3] F. Kratochwil, “Sovereignty as Dominium: Is There a Right of Humanitarian Intervention?” in Beyond Westphalia? State Sovereignty and International Intervention, M. Mastanduno and G. Lyons, eds. (Baltimore: Johns Hopkins University Press, 1995), 21-42.

[4] F.M. Deng, S. Kimaro, T. Lyons, D. Rothchild, and I.W. Zartman, Sovereignty as Responsibility: Conflict Management in Africa (Washington, D.C.: The Brookings Institution Press, 1996).

[5] R. Cohen, “From Sovereign Responsibility to R2P,” in The Routledge Handbook of the Responsibility to Protect, W. Andy Knight and Frazer Egerton, eds. (London: Routledge, 2012), 7-21.

[6] Kofi Annan, “Two Concepts of Sovereignty,” The Economist, September 18, 1999, accessed March 18, 2015, http://www.economist.com/node/324795.

[7] F. Willa, “France Is Still Accepting 30,000 Refugees While Some American Politicians Want to Ban Them,” The Huffington Post, November 18, 2015, accessed February 27, 2016, http://www.huffingtonpost.com/entry/hollande-france-plans-to-take-in-30000-refugees-over-two-years_us_564c78bae4b06037734bb934.

[8] M. Martin, “Merkel urges Europe to protect external borders amid refugee crisis,” Reuters, October 3, 2015, accessed February 27, 2016, http://www.reuters.com/article/us-europe-migrants-germany-merkel-idUSKCN0RX0A020151003.

[9] David Cameron, “Prime Minister’s Response to the Foreign Affairs Select Committee’s Second Report of Session 2015-16: The Extension of Offensive British Military Operations to Syria,” Memorandum to the Foreign Affairs Select Committee, November 26, 2016, Accessed February 27, 2016. http://www.voltairenet.org/article189448.html.

[10] U.N. General Assembly A/60/L.1, “2005 Outcome Document.” September 15, 2005, accessed February 27, 2016, http://www.globalr2p.org/media/files/wsod_2005.pdf.

[11] See, for example, C. De Franco and A.P. Rodt, “Is a European Practice of Mass Atrocity Prevention Emerging? The European Union, Responsibility to Protect and the 2011 Libya Crisis,” Politics and Governance, 3:4 (2014): 44-55.

[12] United Nations General Assembly, A/63/677, “UN Secretary-General's Report: Implementing the responsibility to protect,” January 12, 2009.

[13] A. Edwards, “Human security and the rights of refugees: transcending territorial and disciplinary borders,” Michigan Journal of International Law 3 (2009): 763-807.

[14] C. De Franco, C.O. Meyer, and K.E. Smith, “‘Living by Example?’ The European Union and the Implementation of the Responsibility to Protect (R2P),” Journal of Common Market Studies, 53:5 (2015): 994-1009.

[15] Amnesty International, 2015/2016 Annual Report, (London: Amnesty International Ltd Peter Benenson House, 2016), accessed February 27, 2016, https://www.amnesty.org/en/latest/research/2016/02/annual-report-201516/.

[16] Ibid, 14.

[17] Ibid, 15.

[18] Anthony Faiola and Griffe Witte, "E.U. strikes deal to return new migrants to Turkey," The Washington Post, March 18, 2016, accessed April 3, 2016, https://www.washingtonpost.com/world/europe/europe-offers-deal-to-turke….

[19] F. Mogherini, “Speech by HR/VP Federica Mogherini on Migration,” European Parliament, Strasbourg, September 9, 2015, Transcript, European Union External Action, accessed February 27, 2016, http://eeas.europa.eu/statements-eeas/2015/150909_02_en.htm.

[20] T. Pogge, Politics as Usual: What Lies Behind the Pro-Poor Rhetoric (Cambridge: Polity, 2010).

[21] G.D. Blunt, “Is global poverty a crime against humanity?” International Theory 7:3 (2015): 539-571.

[22] Ibid, 541.

[23] J. Welsh, “Fortress Europe and the Responsibility to Protect: Framing the Issue,” EUI Forum on Migration, Citizenship and Demography (2014), accessed February 27, 2016, http://www.eui.eu/Documents/RSCAS/PapersLampedusa/FORUM-Welshfinal.pdf.

[24] Ibid, 5.