By Lucas Bento
At the heart of the current refugee crisis affecting Europe’s borders is the poor exercise of sovereign judgment. Sovereignty, as a fundamental principle of international law, implies that countries have absolute control over what happens within its borders, free from foreign interference. A state’s power to exclude people from crossing its borders flows directly from this power. Whether it is Hungary’s use of tear gas against asylum seekers, Slovakia’s decision to only accept Christian refugees, or Croatia’s separation of refugee families, the use of sovereign powers in this crisis raises important questions about the role and responsibilities of states as members of the international community.
Most legal scholars and political scientists trace the right to sovereignty to the Peace of Westphalia in 1648, which put an end to Europe’s brutal Thirty Years’ War and laid the foundations for respecting the territorial integrity of states. Europe has since been at the forefront of defining and refining the meaning and practice of “sovereignty,” with the fall of empires and independence of new states, the origination of two world wars, and ultimately the creation of a European Union that partly absorbed the sovereignty of individual member states.
In light of its historical role, Europe should be leading by example. The refugee crisis may be challenging established notions of sovereignty by forcing states to consider the extent to which they are bound by extraterritorial obligations. The right to sovereignty should not be taken for granted. A state cannot have its cake and eat it too. In practice, the right to sovereignty entails significant responsibilities, and must thus be counterbalanced by values such as respect for human rights and the protection of minorities.
Take, for example, the founding text of the European Union. Article 2 of the European Union Treaty proclaims that the European Union is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” Yet the refugee crisis has shown that many European states are failing to uphold these values.
The right to asylum is a basic “human right”, enshrined in international conventions and protocols, such as the 1951 Refugee Convention. Using violence on those fleeing persecution is also an infringement on the “human dignity” of the victims. Hungary’s enactment of a law allowing the army to use rubber bullets, tear gas grenades and net guns against refugees is a saddening example of democratically legitimizing bad policy. While a state’s right in using force to repel foreign invasion is well-established under international law, it was never designed to be unleashed on non-combatants, let alone asylum seekers looking for a safe haven. Cherry-picking which asylum seekers to let in based on their religious belief blatantly undermines any attempt to create a Europe that promotes “equality”.
Sadly, refugees flee violence and discrimination in their homeland only to encounter more of it in Europe.
Of course, Europe should not open its borders without controls. It should monitor, register, document and process all asylum seekers that come in to ensure that asylum applications are based on a well-founded fear of persecution, rather than on economic or as some have noted, more nefarious, reasons. But for some states to close their borders in the hopes that the crisis will go away or that someone else will collect the tab is preposterous. Europe needs a unified solution. As the United Nations High Commissioner for Refugees (UNHCR) noted, “individual measures taken by countries will make an already chaotic situation worse, furthering suffering and increasing tensions among States at a time when Europe needs solidarity.” The agreement for a relocation quota is a step in the right direction, though it has been criticized as insufficient by the UNHCR, and may face enforcement issues as some states, like Slovakia, have already vowed not to implement the measures.
Others should drop the xenophobic and hyperbolic rhetoric. Viktor Orban, Hungary’s Prime Minister, unhelpfully described the inflow of migrants as “breaking the doors” and “running over us.” Refugees are running away from harm, seeking safety abroad when there is none at home, hoping to receive an acknowledgment of their humanity where the alternative includes slavery, rape, and death.
In many ways, Europe’s approach to the refugee crisis demonstrates the poverty of philosophy in European political circles. Germany’s backpedaling from a message of absolute solidarity to one of controlled migration would make Immanuel Kant weep in disappointment. Kant believed in a cosmopolitan world, where individuals as “citizens of the earth” enjoyed rights of hospitality, and where states had no right to refuse visitors if it would lead to the latter’s demise. Europe cannot let the repercussions of ISIS brutality become a humanitarian tragedy for Europe. Enough with the violence and discrimination. This is the time for European leaders to demonstrate their commitment to “human dignity,” “human rights,” “equality,” and “the protection of minorities.” The true indicia of humanity comes not in how much we say we care (though compassion is necessary) but in how much we care to share: our time, our land, and our resources. Here, actions speak louder than words.
Europe should be doing more on a global level to form partnerships and alliances with others in the international community to find a coordinated solution to this crisis. It should reach out to Brazil, whose President has recently stated that the country is welcoming refugees “with open arms.” It should also leverage diplomatic channels to put pressure on the United States to take on more refugees, and demand greater support from countries in the Gulf that have been criticized for their “tepid” response to the crisis. It should also listen to its own citizens who are helping refugees at train stations, providing shelter and food to those in need, and even developing mobile applications á-la Airbnb to help good Samaritans share their homes with refugees.
Whereas ISIS preaches violence and discrimination, Europe should fight back, if only ideologically, by standing united in solidarity with those in need. Sovereignty should not be used as a weapon of oppression and exclusion, but as an emancipatory reminder that states are members of a community striving for a more peaceful world. Of course, the exercise of sovereign power will always trigger a division of opinions. But in a world where states are increasingly sharing power with non-state actors, the sword of sovereignty should be raised wisely, wielded responsibly, and seldom left to the discretion of political expediencies.
Lucas Bento is an associate at the New York office of Quinn Emanuel Urquhart & Sullivan, LLP.
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