Understanding the Solidarities of the Common European Asylum
System: Diverse, Incoherent and Political
by Harriet Gray (University of Liverpool)
Solidarity is presented as the foundation of Union asylum policy by the EU’s institutions, its Treaties and its Member States. This is true of the early days of the CEAS under the Tampere Council Conclusions of 1999 and the 2001 Temporary Protection Directive, so too at the most testing time in the history of the CEAS. There are compelling reasons to reject the EU’s conceptualisation of the arrival of increased numbers of people in 2015 and 2016 as a ‘refugee, or migrant, crisis’. Nevertheless, these events were perceived as a crisis by the EU institutions and Member States, and the framing of their response was clear: more and stronger solidarity – “If ever European solidarity needed to manifest itself, it is on the question of the refugee crisis” (Juncker, 2015).
The presentation of this solidarity throughout has been as a singular, coherent idea. References to the principle of solidarity from EU institutions abound, each of which carries the assumption of common understanding, perhaps through some judicially or legislatively imposed definition, or through common linguistic understanding of a conceptually-clear idea. Academic literature recognises the existence of different solidarities across EU policy areas (Biondi, Dagilyte and Küçük, 2018; Ross and Borgmann-Prebil, 2010) but does not challenge the coherence of solidarity within the CEAS, which is the purpose of this paper. The presence of a singular coherent solidarity is central to the success of efforts towards the juridification of the principle of solidarity and Article 80 TFEU because, despite the previous experience of the Court of Justice in finding legal obligations in vague principles, a core of agreed meaning is still required.
This paper argues that no such core meaning exists for solidarity in the CEAS. There is certainly no legal definition of solidarity and, through examination of CEAS solidarity measures, it can be observed that there is no common approach to solidarity underpinning these references either. Whilst it is nothing new to recognise that ideas can take on different flavours when applied in different contexts, the analysis offered herein shows that solidarity is used to convey diverse, including contradictory, ideas within the context of EU asylum policy.
The second core claim of this paper is that the presentation of a singular, coherent solidarity that is amenable to legal application excludes discussion of the aspects of solidarity that should be politically contested. It suggests that solidarity is one thing that we can be ‘for’ or ‘against’, but obscures the disagreements we might have about various aspects of solidarity, such as: who are the actors showing and benefiting from solidarity? And, how do we measure any particular actor’s solidarity?
Closing down the discussion of the politically-contestable elements at the foundation of the CEAS perpetuates dominant approaches to migration of third country nationals to the EU that emphasises weighing the ‘worthiness’ of each applicant by her conduct and prioritising the impact on, and preferences of, states in a general atmosphere of closed borders and exclusion summarised in the epithet, ‘Fortress Europe’.
The presentation of this solidarity throughout has been as a singular, coherent idea. References to the principle of solidarity from EU institutions abound, each of which carries the assumption of common understanding, perhaps through some judicially or legislatively imposed definition, or through common linguistic understanding of a conceptually-clear idea. Academic literature recognises the existence of different solidarities across EU policy areas (Biondi, Dagilyte and Küçük, 2018; Ross and Borgmann-Prebil, 2010) but does not challenge the coherence of solidarity within the CEAS, which is the purpose of this paper. The presence of a singular coherent solidarity is central to the success of efforts towards the juridification of the principle of solidarity and Article 80 TFEU because, despite the previous experience of the Court of Justice in finding legal obligations in vague principles, a core of agreed meaning is still required.
This paper argues that no such core meaning exists for solidarity in the CEAS. There is certainly no legal definition of solidarity and, through examination of CEAS solidarity measures, it can be observed that there is no common approach to solidarity underpinning these references either. Whilst it is nothing new to recognise that ideas can take on different flavours when applied in different contexts, the analysis offered herein shows that solidarity is used to convey diverse, including contradictory, ideas within the context of EU asylum policy.
The second core claim of this paper is that the presentation of a singular, coherent solidarity that is amenable to legal application excludes discussion of the aspects of solidarity that should be politically contested. It suggests that solidarity is one thing that we can be ‘for’ or ‘against’, but obscures the disagreements we might have about various aspects of solidarity, such as: who are the actors showing and benefiting from solidarity? And, how do we measure any particular actor’s solidarity?
Closing down the discussion of the politically-contestable elements at the foundation of the CEAS perpetuates dominant approaches to migration of third country nationals to the EU that emphasises weighing the ‘worthiness’ of each applicant by her conduct and prioritising the impact on, and preferences of, states in a general atmosphere of closed borders and exclusion summarised in the epithet, ‘Fortress Europe’.
