European Union

By Iris Goldner Lang and Samuel H. Chang

For the past several months, the UK electorate has been engaged in a fierce political debate over a single question: “Should the United Kingdom remain a member of the European Union or leave the European Union?” British voters will head to the polls on Thursday, June 23, 2016, for a referendum on UK membership in the European Union. By now, much ink has been spilled on the political backdrop, the sequence of events preceding the referendum, and its potential effects on the United Kingdom. Yet the decision to hold a referendum also has significant consequences for the other side of the Channel. Independent of its outcome, the referendum is already having visible effects on the functioning of the European Union in the pre-referendum stage. Two crucial consequences in particular can be discerned on the EU side: first, the creation of a political precedent and, second, the aggravation and diversion of energies from the EU’s internal challenges.

Political Precedent

The United Kingdom’s contemplation of leaving the European Union represents an extraordinary occasion against the historic flow of European integration. For the past sixty years, the economic, political, and social advantages of EU membership have been a magnet to European states, transforming the initial European Economic Community of six states into a Union of 28 Member States and 500 million inhabitants. EU enlargement policy has frequently been credited as the Union’s most successful foreign policy, stimulating positive changes in newly acceding countries and deeply affecting the European Union itself. While the UK voted on EEC membership in 1975, the British Government’s present commitment to a referendum marks the first time in EU history that one of its Member States has seriously opened the possibility of leaving the Union. In this sense, the referendum creates a political precedent for other EU Member States.

More importantly, the creation of a political precedent is driven by the unpredictable nature of a referendum and the EU’s response to such uncertainty. In an effort to accommodate Prime Minister Cameron’s concerns and to gain the UK public’s support, EU leaders have agreed to grant several concessions to the United Kingdom. These concessions—which might not have been possible absent the uncertainty of the referendum or the simultaneous crises facing Europe—will take the form of several amendments of existing EU law in the event of a UK vote to remain.

Against this background, there is a well-founded fear that the UK referendum and the Union’s response to it will not only give impetus to anti-EU sentiments across the continent, but that it might also create a political precedent for leaders from other Member States to begin asking for concessions under the threat of leaving the Union. This fear is echoed by European Council President Donald Tusk, who recently expressed his concern that the UK referendum might serve as a “very attractive model for some politicians in Europe to achieve some internal, very egotistic goals.” He further added, “It is not only my intuition. I know in fact that some politicians in Europe are ready to use this political model, to underline that they are really independent towards Brussels and the EU. It is the most popular political melody in some capitals.”

Indeed, one may question the incentives behind existing calls for referenda on EU membership and wonder whether they are motivated by national politicians’ sincere concerns about the long-term interests of their citizens, or whether they are better viewed as short-sighted, populist moves in line with the famous words of Groucho Marx: “Why should I care about future generations? What have they ever done for me?” Hungarian Prime Minister Victor Orban’s announcement of an anti-immigration referendum on EU refugee quotas, which were adopted last fall as legally binding decisions by the Council of the European Union, serves as one example of such developments across Europe. The UK referendum has also prompted discussions about leaving the European Union in the Czech Republic and France. Such debates are likely to continue in other Member States as well.

Aggravation of EU challenges

The second consequence of the Brexit campaign, already visible in the pre-referendum stage, is the delay of addressing certain challenges until after the British vote. This has resulted in the aggravation of the EU’s internal problems and the diversion of its energies away from political solutions. The potential of Brexit is yet another one of the many internal crises the EU has been experiencing in the past decade. European leaders have long pointed to the positive effects of crises on European integration, perhaps the most famous being Jean Monnet’s statement that “Europe will be forged in crises, and will be the sum of the solutions adopted for those crises.”

However, there has been a visible escalation of the magnitude of EU crises in the 21st century, as each new crisis surpasses the preceding one in its complexity and profoundness. The 2005 failure of the Constitutional Treaty, triggered by its rejection at the French and Dutch referenda, marked a constitutional and institutional crisis concerning fundamental disagreement over the Union’s future identity. It also demonstrated the fragility of leaving the European project to a direct public vote. The immediate crisis was eventually resolved by the adoption of the Lisbon Treaty, but its root causes were not addressed, the most prominent being problems in the EU decision-making procedure (including its remoteness from the average EU citizen) and the existence of conflicting motivations among Member States. Likewise the sovereign debt crisis has still not been entirely resolved, while the most recent crisis over the mass influx of refugees into Europe is in full swing, dismantling a number of EU rules, principles, and values. Both the financial and the refugee crises created political and social tensions across Europe and have brought to the surface the problems of inter-state solidarity. Though the refugee influx is the proximate cause of the current crisis, the actual crisis is not about refugees or their numbers, but rather the Union’s inability to respond to the influx in an organized, united, and human rights compliant manner. Thus, the “refugee crisis” might be more aptly described as an EU institutional, political, moral, and humanitarian crisis.

Amidst the ongoing crises, the UK referendum further accentuates the divisions currently existing among Member States. It brings to the spotlight Member States’ inability to speak with one voice, show mutual trust and understanding, or find solutions to mounting problems. The UK referendum has diverted the Union’s energies from existing problems toward discussions related to EU membership and Brexit contingencies. Because the proponents of Brexit have tied the referendum to current EU challenges such as the refugee influx and Greek debt crisis, EU leaders are walking on eggshells in the final months before the referendum as to not exacerbate British public dissatisfaction with the situation in the Union. As a consequence, they have avoided politically contentious actions that may be necessary to reaching stable, definitive solutions. Along with the tensions from Germany’s internal politics, for instance, the UK referendum adds to Member States’ reluctance to discuss Greek debt relief in detail. In other respects, the referendum increases pressures to push forward with difficult stopgap measures such as the politically fraught deal with Turkey. In short, the potential of Brexit comes at the worst possible time in EU history. It sends a signal of insecurity both internally and externally, contributing to the further destabilization of the Union at its most vulnerable moment. Before any ballots are even counted, the referendum itself has already cast a symbolic vote of no confidence in the European project.

Iris Goldner Lang is a John Harvey Gregory Lecturer on World Organization and a 2015-2016 Fulbright Visiting Researcher at Harvard Law School. She is also a Jean Monnet professor of European Union law and UNESCO Chairholder at the University of Zagreb, Faculty of Law.

Samuel H. Chang is a 2016 J.D. candidate at Harvard Law School and an Executive Editor of the Harvard International Law Journal.

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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