Refugee crisis greatest threat to EU so far says Rutgers’ Dan Kelemen

December 3, 2015

Screen Shot 2015-12-03 at 12.44.27 PM

 “The EU has to decide.  It can either have free internal movement and a common external border and a common asylum policy, or it can see Schengen fall apart”.

Rutgers University professor of political science and law Daniel Kelemen recently spoke to the Budapest Beacon about the European refugee crisis, how it has fundamentally changed the political debate in Europe, and why the EU is likely to tolerate Hungary’s refusal to play by the rules for some time.

At a roundtable discussion entitled “The causes and consequences of the refugee crisis” held at Princeton University at the end of September, you said that the refugee crisis was the product of EU policy being that of a “half-built union”, and that we’re seeing the culmination of a crisis that has been mounting for eight years or so. You likened the EU to a half-built boat that gets into trouble every time it encounters a storm.

In the area of the refugee crisis where we see the effects of this half-built union is in the area of internal movement and border control.  The EU built half of what you would need, which is free internal movement.  But they didn’t build the other half, which is common external border control.   They created a huge area of free movement by getting rid of the internal borders within the so-called Schengen area, but they didn’t follow through with creating a common external border, which is the cause of all the problems we are seeing now.  Nor did they create a common asylum regime.  Although they created some aspects of it, they were not implemented effectively.  This results in a kind of destructive competition between states.

This summer a number of countries criticized Hungary for building a fence along the border with Serbia and then Croatia.  But since then we have seen where both Slovenia and Croatia have built either fences or structures intended to prevent migrants from freely entering.

I think the idea of having some kind of hard border if you are a frontier member of Schengen is reasonable and probably necessary.   The problem with Hungary’s fence wasn’t so much the fence itself as the unilateral way in which they did it, which just pushed the problem along to the next Schengen state.  Instead of seeking out a common solution at the EU level with regard to strengthening the external border, they simply diverted the refugee flow into Croatia and Slovenia.

And then there was the way they criminalized refugees by making it a felony to cross that fence.

You point out that the refugee crisis has been building over the past eight years.  There’s been a steady stream of migrants passing through the Balkans and middle Europe on their way to Germany and Scandinavia.  Why has it taken an existential crisis to get the EU to react to this?

Unfortunately, it’s usually only by reacting to crises that the European Union is able to overcome disagreements between member states and really come up with common solutions.  So this is nothing new.  We saw the same thing with the Euro crisis and the Greek debt crisis.

It’s not as though the EU did not react to the growing stream of migrants.  Already before the most recent wave of Syrian refugees they set up the Common European Asylum System, where they have a number of EU regulations basically setting minimum conditions and rules for the admission and processing of asylum seekers, and how they are supposed to be treated.  They also set up a common EU border patrol agency called Frontex.  So they have taken many of these steps.  But as is often the case with the EU, they didn’t go the full way.  Frontex, for example, is a good idea.  You should have a common agency helping to patrol the external borders, but it’s tiny, underfunded, understaffed, and under-resourced, embryonic.

Likewise with all those common rules on asylum that I mentioned, a lot of them look good on paper but they are not being enforced.  There are presently 75 infringement actions by the European Commission against various member states.  About 19 member states have been sued for violating various aspects of these asylum rules.

The point is that the EU did take some steps to address the crisis earlier on, but they were all inadequate.  And it is only now that the crisis really exploded in 2015 they are getting more serious about bigger steps.

There was ample opportunity to nip this crisis in the bud, so to speak.  Why was it ignored until Hungary built the fence?  

I think the debt crisis and the broader Eurozone crisis sucked up all the oxygen in the room, so to speak.  That was the number one issue on the agenda and one crisis meeting after another over the years was occupied with damage control over the Euro crisis, so much so that other simmering crises, like the refugee crisis, were pushed to the wayside when they shouldn’t have been.

But the other reason why they didn’t deal with it is that there are differences in the interests of member states, and policy preferences, if you will, on this issue and how they want to react.  And really, it comes down to fundamental differences between governments and how they think the burden should be shared.

For instance, some of the front-line states are receiving the most migrants, like Italy and Greece.   Certainly they would like more European support in dealing with the costs of those migrants and redistributing them around the EU, as provided for by the latest commission plan.  But then you have other states which are not receiving migrants and which ask why they should have to help pay for this.

And then you also have tensions between countries that believe in a policy of being more open and supporting of migrants, say Germany or Sweden, and other states who are resisting taking asylum seekers.   As is so often the case in the EU, because you need broad agreement, and sometimes unanimity, it is sometimes hard to achieve that.

I cannot imagine that this subject was not raised over the course of the negotiations over the Greek debt crisis.  Greece must have very rightly pointed out that it was burdened with caring for growing numbers of refugees and asylum seekers from the Middle-East.  The failure of the EU to react to this in a concerted and effective manner strikes me as a huge failure.

There is no question that you are right.  Just how ridiculous that is has been highlighted by the fact that in recent weeks we’ve seen the Commission finally explicitly say that member states who are overwhelmed by refugee flows will be given greater latitude and flexibility in dealing with the various fiscal targets and criteria that are imposed in exchange for these bailouts.  So finally Greece is getting more “wiggle room” due to the refugee flow.  For years Greece was receiving far more refugees than it could care for.   In fact back in 2011 there was a case at the European Court of Human Rights and the European Court of Justice that member states could not follow the so-called Dublin rule of sending asylum seekers back to the original country of EU entry if that country was Greece, because the conditions and treatment of the refugees were deemed inhumane.  The Dublin model that requires asylum seekers to apply for asylum in the first EU member state they arrive to instead of traipsing all around Europe was already in trouble in 2011.  It’s quite incredible that they didn’t put that on the agenda earlier and say they are going to infuse money heavily into Greece for the purpose of aiding them in dealing with refugees.  Now they are trying to play catch up and fund more of these “hot spots” that are EU-run processing and support centers, but it’s a bit late now.

Screen Shot 2015-12-03 at 12.47.08 PM

This is not the first time that Europe has taken in large numbers of refugees.  

You had a huge influx after the wars in the former Yugoslavia.  That was in the high hundreds of thousands for a couple of years in the early 1990s.  Then the numbers went down for many years.  But then in the early 2000s they started to go up again.   And the flows came from different places.   In the mid 2000s a lot of refugees were arriving to the Canary Islands, for instance.  Then later they were arriving in Lampedusa, Italy, in the context of the Libyan war. And now we’re seeing this latest wave coming through the eastern Mediterranean and Balkan route.  This year Europe stands to receive nearly one million refugees, three-quarters of them arriving by sea to the Greek islands and Italy.  The projections for next year are even higher.  They are talking about maybe three million refugees coming next year unless big efforts are undertaken and changes made at the source to stop the refugees from leaving the camps where they are residing now.

A representative of the UNHCR told a Hungarian newspaper this summer that one of the reasons the refugees were coming is because conditions in refugee camps in Turkey, Lebanon and Jordan had significantly deteriorated and that they were only receiving half the rations this year as last year.  

The general picture for last year is that many countries had cut back on their contributions to the World Food Program and UNHCR due to fiscal pressures.  As a result, there were major cutbacks in the amount of aid provided to camps in Turkey, Jordan and Lebanon.  So one of the steps the EU has taken is to restore funding levels to what they had been a couple of years ago.

In addition to that the EU has pledged a lot of new money, especially for Turkey, which is the largest recipient of refugees in the Middle-East, and also with the so-called trust funds—one for Syrian refugees and one for various African countries—but so far the contributions have not nearly matched the targets.

However, there are other factors contributing to the large increase in the number of refugees trying to enter Europe.  The human smuggling networks have become more developed and the routes are more established.  Finally, there was Merkel telling Syrian refugees that if they make it to Germany, they can stay.  As critics point out, this may have induced a lot of refugees who were sort of sitting on the fence to say “okay, this is the moment, let’s go”.

At the Princeton roundtable German expert Rafaela Dancygier cited a recent German public opinion poll showing the majority of Germans supporting Merkel’s position on offering asylum to Syrian war refugees.  In the months that followed we saw a dramatic reversal of this.   To what do you attribute this change in public opinion?

First of all, the overall numbers just went so much higher than anyone anticipated.  Even the countries that had the most open and welcoming policies are feeling inundated and overwhelmed.   Sweden has basically said we’ve taken as many as we can.  When the EU agreed on this scheme to redistribute refugees around the EU, initially Sweden was going to be one of the countries that received refugees.  But now they say they want to be one of the countries that sends refugees to other countries because they are overwhelmed.

So the main reason is that these countries are feeling overwhelmed.  It’s straining social services, housing and the ability to provide for these people.

Secondly, you have right-wing parties that are stoking anti-immigrant sentiment, saying they were going to take away from spending on welfare, and that was before Paris.  The Paris attacks have much added to the security dimension of this issue so that now there is concern that amidst this refugee flow there could be Jihadists mingling in, as may have been the case with a couple of the Paris attackers.

Were the Paris terror attacks a game changer in your opinion?

Yes, I think it was in a few respects.  Even here in America people are saying we need to shut down asylum policy because of terrorists, even though there is a very detailed and rigorous vetting process that takes 18 to 24 months.  By contrast, in Greece and then Hungary before they closed their borders, people were just coming through.  Some of them were being finger-printed.  The EU did not have an effective process in place.  In reaction to Paris you are going to see Europe ramp up its ability to screen asylum seekers and record data on everyone coming in and compare them against databases of known criminals and terrorists.  So I think it was a game changer in that respect.

They’ve committed to doing that.  The question is whether they can get the kind of infrastructure into place in the countries on the external borders to make that happen.  Until they can, you will continue to see countries within Schengen erecting their own border controls to make sure that screening happens.

You mentioned earlier that Sweden is eager for other EU member states to accept some of its refugees. Hungary and Slovakia, however, have stated categorically that they will not accept any refugees.  In fact, Hungary’s ruling party, Fidesz, has collected nearly 1 million signatures from people opposed to Hungary admitting refugees.  

The European Union agreed to this refugee relocation scheme.  They voted on it through the Council of Ministers.  A few countries, including Hungary, voted against it, but they were outvoted because it’s a system of weighted majority voting.  Countries don’t have to take refugees under that scheme.  The principle is that if they do not take the quota of refugees they are supposed to take under that scheme, they pay a fine.  The underlying idea of this is that if you want to have this Schengen area and free internal movement, and if you do have flows of asylum seekers, then it does seem inherently unfair that the states that are at the external borders of Schengen where the asylum seekers first arrive are the ones to handle them, both in terms of processing them but also in terms of  resettling the ones who are granted refugee status.   If you want a system of internal movement, you have to have a system of burden sharing.  Otherwise, you have one of two outcomes.  You either have the Greece outcome, where a country gets overwhelmed and cannot possibly handle the burden of resettling all these refugees, or you have the Hungary outcome where they erect the fence, criminalize asylum seekers, and give no one asylum.

It’s very unsustainable to have a system where some countries are granting asylum at upwards of 70 percent of applicants and all Syrians, and others reject nearly all applicants.  Because obviously if you have a situation where countries belonging to the same free movement zone grant asylum at such radically different rates, then of course asylum seekers will try to go to the place that might accept them.   It creates these perverse incentives.  If you are trying to maintain Schengen, you really have to have some way to share the burden fairly.   And so the principle underlying the refugee relocation scheme is: either you take some refugees representing your share of the burden, or else you pay some penalty that in essence helps support those countries that are sharing their fair share of the burden.

Hungary, Slovakia, and Poland under the new government have said they are not taking any refugees and are going to try and challenge the validity of the scheme in the European courts.  I don’t think they will get very far with that.  However, if countries are opposing this so adamantly, it may not be a workable scheme in the end.

Is it not the case that right-wing governments like that of Viktor Orbán are politicizing the refugee crisis to shore up domestic support?  Do you think Hungary responded to the crisis in a measured and proportionate manner?  Or do you feel the government over-reacted?

The refugee crisis in general, and now the security element following the Paris terrorist attacks, have produced a huge political victory for the Orbán government.  They’ve changed the whole political conversation in Europe about Hungary and about the Orbán regime to terrain which is much better for Orbán.  The conversation even a year ago was is Hungary sliding towards authoritarianism?  Is Orbán rolling back democracy?  What was happening in Hungary was deeply problematic for an EU member state.   There are many reports and studies from various international organizations, the Council of Europe, the European Parliament, the OSCE and others documenting all that.  With this refugee crisis, and with Orbán taking his particular stand on that, it’s not only made him more popular at home and taken away votes that were drifting to Jobbik, but it also made him a kind of hero of the European right as someone who was willing to take a hard stance against migration, multiculturalism, and these kinds of issues.   What it means is that any criticism of Hungary on sort of procedural grounds, that it is becoming less of a democracy, that he’s eroding freedom of the press, independence of the judiciary, is now going to be perceived as sour grapes by people who don’t like Orbán’s policies on migrants.  It’s hard to separate the substance of policies which some people don’t like from the erosion of democracy issue.  Orbán has now insulated himself from criticism because he will have all these new defenders on the grounds that he shares their views about migration and security.  I think it is really going to be hard for people to make the case for what is happening in Hungary on democratic grounds any more.  The issues are simply too intermingled now.

You made the analogy earlier of the EU being a half-built boat that gets into trouble whenever it encounters a storm at sea.  Well, the European refugee crisis is the perfect storm.  It cuts across all ideological lines and separates liberals from conservatives and conservatives from nationalists.   Where is all of this leading?  You mentioned a number of persistent problems that simply are not getting solved such as the Eurozone crisis, the Greek debt crisis.  Is this another problem that simply is not going to get solved because of irreconcilable differences among EU member states?   And if so, how does this bode for the future of the European Union?

It doesn’t bode well.  You mentioned the Eurozone crisis.  There the EU’s response was to move forward incrementally with the kinds of steps that were needed to shore up the Eurozone and put in place the institutions that were missing.  With this migration crisis, what we see is Schengen falling apart.  We’ve seen some small steps forwards.  The EU in reaction to the crisis says okay we need to have much more of a common external border, and they increased the budget of Frontex for next year by more than 50%.  They’ve givin more resources to these hot spots for processing asylum seekers.   They’ve increased funding for Turkey.  They made commitments on a number of issues like this to improve the conditions of refugee camps.  So they’ve done things collectively that they needed to do.   But I wouldn’t say those steps have gone too far.  No one’s really talking about a pan-European border agency or a truly unified asylum policy.   I’m afraid what we are seeing in this case is the crisis leading to a kind of fragmentation of the EU, at least in terms of borders.  And I think that’s very worrying for the future direction of the EU.  I don’t think that means that the whole EU falls apart, or that the EU project ends.  But it’s a huge step back for integration.

Viktor Orbán has accused the European left and even George Soros himself of deliberately engineering the refugee crisis in order to undermine Christian Europe and nation-states.   But in light of the failure of EU member states to formulate an effective collective response, isn’t this an argument for greater integration?  Wouldn’t a strong European executive have identified this threat and reacted to it in a timely and effective manner?

There’s no merit to the claim that the refugee crisis was engineered.  I don’t know that a stronger center could have foreseen this, but I do think that the EU has to decide.  It can either have free internal movement and a common external border and a common asylum policy, or it can see Schengen fall apart.

But if you close the EU’s external borders, you could easily have a situation where hundreds of thousands of asylum seekers accumulate right on the EU’s borders.  You have a situation where there is mass starvation, disease.  In short, a morally untenable situation.   Last week the US Congress voted to ban Syrian and Iraqi refugees from entering the United States until more stringent screening procedures are implemented, even though the US probably has the strictest procedures in the world.   A large number of Democratic congressmen broke with the president on this issue because they are up for re-election next year.  President Barack Obama has come out and said that this is wrong and the United States has to take its far share of refugees and asylum seekers.   Are there not crises that require a strong executive able to resist momentary swings in public opinion and cut through bureaucratic inertia and disagreements among member states?

We have to deal with the reality as it is, which is that the EU doesn’t have that kind of strong executive, and it’s not going to appear.  The kind of functional substitute, so to speak, initially was Germany stepping up and Chancellor Merkel saying “we will take all these people”, but we see where this did not work within the EU context for various reasons, including the fact that they had to cross a number of countries.

Imagine a world where there was no EU.  You would still have this same issue if you had refugees flowing in across borders.  All of these countries are signatories to the UN convention on refugees.  The EU has channeled the nature of the crisis in particular ways, but the deeper issue you’re getting at is what is it going to take to resolve this refugee crisis.   How is peace going to be restored to Syria?  How should the EU step up to improve conditions for some 4 million refugees living in camps outside of Syria?

Does it mean that the EU cannot survive?  I think this is the biggest crisis the European Union has ever had.  This is a much more intractable crisis than the Eurozone crisis, for instance.  That being said, I still think this will not result in the complete falling apart of the EU.  It will be a big setback.  We will see for some time the re-establishment of border controls and a fraying of unity.  It’s all going to feed into the rise of far-right parties and more anti-EU sentiment in many countries.  I think it will be be a tough time for the union but not the end of the union altogether.

But how long are the major EU member states like Germany going to tolerate countries like Hungary sniping at Brussels all the time?  How long are they going to put up with that?

I find this to be a very depressing topic.  They’re probably willing to tolerate it for a very long time.  And here’s why: In a multi-level system of governance like the EU or in a more federal system, you often have pockets of authoritarianism or pockets that don’t subscribe to the values of the union as a whole.  In much more integrated systems such as federal states, which the EU isn’t, you still have states within those unions that don’t buy into the democracy as it exists at a federal level.  Think about the South in the US during slavery and even until passage of the Civil Rights Act.  Or countries like Mexico or Argentina that are democratizing but still have states within them that are authoritarian.  The lesson of looking at such systems is that the pockets of authoritarianism and resistance to democracy at the center can persist for a long time.  If it’s true for countries, then it’s probably going to be true for the EU.  It would take real strong political will from the center and from other member states to change the political status quo in these countries.  And that’s very sensitive in Europe. People feel that is the domestic affairs of Hungary or Poland.  We can’t meddle in that.  So there’s a real reluctance to intervene too much.  So they try to use legal tools.  But the answer to your question is that, sadly, this kind of situation can persist for a long time in the EU.

Screen Shot 2015-12-03 at 4.53.38 PM

If a country persistently violates EU law—just thumbs its nose at Brussels—knowing that it is going to be one or two years until there’s a court decision and that during this time they can do whatever they want, what is to be done?

Well, there is what is to be done and what actually will be done.  The method of operation of the EU has been to bring legal action against Hungary for its most flagrant violations of EU law.   And it does that with great regularity.  But the typical response on the part of Hungary is to wait to see how that plays out over a number of years and then to make a few minimal changes to appear to come into compliance maybe without respecting the spirit of EU law.

I’d like to see more political intervention from EU leaders from the same political family as Orbán.   If he gets criticism from the left, he can dismiss this as coming from his leftist opponents.  It would have a lot more resonance if you saw all the leaders of the center-right standing up to say that the cumulative trends we’re seeing under this regime are unacceptable.  But they won’t.  It comes down to politics.  The European Peoples Party, the center-right party in Europe, has been protecting the Fidesz government for some time because they belong to the same party family.  So, on the one hand, you have the Commission suing Hungary again and again and again for EU violations and the European Parliament issuing some critical reports, and on the other the European Peoples Party defending the Hungarian government.   As long as they have that kind of political protection from the center-right, I think they’re pretty well insulated.

The EU needs some new instruments to deal with member states that persistently breach EU values and thumb their nose at EU law, because the EU is a union based on the rule of law and there is this expectation that governments would be firmly democratic.  The EU doesn’t have effective enough tools in place to deal with countries that persistently violate EU law and EU values.  Freedom House this year in their report on countries in East-Central Europe for the first time downgraded a country from “consolidated democracy” to only “partly-consolidated democracy”, and that was Hungary.

What’s going to be the next crisis?

The refugee crisis is going to be the dominant one for the next couple of years.   Those numbers are incredible.  They’re talking about taking in three million refugees next year.  I think it’s going to become all consuming.  But they’re never going to fold up the EU and say “done”.

I think the other big crisis is going to be BREXIT.  But I still believe the British are more likely to vote to stay than to leave, but it will be a close-run thing.  The run-up to it will create a lot of drama and worry.