By Catherine Woollard
In a strange reversal, the most ardent proponents of the Pact are now arguing against it, while those who opposed it – ECRE included – are focusing on implementation.
Chief amongst the Pact repenters is the Netherlands, futilely proposing an opt-out despite being the originator of the most controversial Pact measure: the mandatory border procedure. Yes, the government may have changed, but still there is an infuriating irony in seeing the country that essentially pushed the Schiphol airport border procedure on the rest of Europe now saying it wants out. Then France, the most aggressive and uncompromising of the Member States in the final stages of negotiations, now equivocating, after railroading the European Parliament (or mobilising its puppet MEPs) and undermining compromises to insist on the most extreme version of the Council’s position becoming law.
Add to that the German government complaining about the dysfunction of the Dublin Regulation and the irony meter blows up. The refusal of certain states, and notably Germany, to countenance a serious reform of Dublin – including when it was tentatively proffered by the Commission in 2016 and more strongly proposed by the Parliament in 2018 – is a major cause of the mess. Instead, the largely unreformed responsibility rules were kept and form a central pillar of the Pact.
Actually, the whole story could have been concluded back in 2018, with implementation well underway by now, if the Member States hadn’t reneged on the inter-institutional agreement reached with the Parliament on a more workable version of the reform. The total irresponsibility of the Council (its President and key Member States) is too often forgotten. Blowing up that deal was carried out in order to pursue a reform more favourable to states in general and certain states in particular (including the ones just mentioned). That is what the Pact represents but it is still, apparently, not enough.
On the other hand, some of the strongest opponents of the Pact have accepted that the reform has passed and now argue for implementation. That is ECRE’s – reluctant – stance and that of the progressive groups in the Parliament, for example, and of many academic commentators. This stems from an acceptance that the Pact is now law and that law should be respected, but also from recognition of the time and resources spent on reforms and the need to return to questions of compliance, neglected for so long.
Instead, not being so keen on compliance, states are again seeking to undo what has been agreed as part of their general efforts to avoid and undermine international and EU law on refugee protection. Even the proposal yesterday on “frontloading” the Pact is a return to a selective implementation plan which prioritises measures that are in the interests of certain states and not others, and certainly not in the interests of applicants as the fast-tracked elements will of course be those with the most damaging impact on the right to asylum.
The current proliferation of “innovative solutions” – most of which are the same stale old or regurgitated non-solutions that have been under discussion for decades – is also an attempt by states to seize the initiative during the hiatus in Brussels, with the outgoing Commission halfway out of the door and the incomers prepping for their Parliament hearings (although that doesn’t explain the wavering of the returning Commission President who proposed the Pact in the first place and whose political group is responsible for most of the content).
While some of this is a pointless distraction, there is also a sense of real danger in the air. First, if states persist in their disregard for and undermining of the law, at some point the Common European Asylum System will breakdown. France and Germany – both making irresponsible suggestions over the last two weeks – might reflect on what that scenario would mean for them. Second, political leaders might consider how helpful these nonsense innovative solutions will be if a major displacement crisis unfolds. What if Lebanon collapses? Or Egypt, Turkey, Belarus? Will Rwanda or Albania step up to happily accept everybody who arrives in the EU? Or would it be more effective to work collectively on the basis of well-functioning asylum systems, as well as deploying the tools available in EU law, with EU support, as happened in response to displacement from Ukraine?
There is no need for new legislation – there are 5000+ pages of it. The call to “open up the Pact” is the posturing of extremists who want no laws or of mainstream politicians who are either unable to mount a sensible political strategy against the far right or unwilling to be honest with their own populations about labour market needs and demographic change. The accompanying alternative solutions are a manifestation of Europe’s collective delusion that it can control or escape the consequences of ignoring geopolitical turmoil and fuelling displacement by selling arms and propping up persecutors and oppressors.
The opponents of the Pact warned that it would never be enough for the hardliners; the proponents claimed it was the answer to the “broken system”. The onus is on them to follow through. That could include (1) comprehensive implementation of the law to get asylum systems working; 2) long-term, collective plans for continued management of displacement from Ukraine, including post-Temporary Protection Directive options; and – unfortunately but imperatively – (3) sensible preparations for potential major displacement crises.
Notably, the Commission and its equivocating President should stand up to the Member States, shut down the solution-mongering and focus on implementation of the painfully extracted reforms. Otherwise, it can give up on the common system – and deal with those consequences.