Rethinking solidarity in European asylum law: A critical reading of the key concept in contemporary refugee policy
Datum för disputation: fredagen den 16 november 2018
Fakultetsopponent: professor Elspeth Guild, Queen Mary School of Law, London, och Radbouds universitet, Nijmegen
According to Article 80 of the Treaty on the Functioning of the European Union (TFEU), solidarity and fair sharing of responsibility is the governing principle of EU policy on immigration, asylum, and border management. As such, solidarity has been invoked to support legal argument and guide policymaking. The aim of this thesis is to shed light on the extent to which the positivization of solidarity in European asylum law has had a bearing on Member States’ obligations and to investigate what explains its influence or lack thereof.
To achieve the aim of this thesis, I proceed in two steps. I first embark on an analysis of the relevant legal sources (primarily EU treaties and secondary legislation and the 1951 Refugee Convention) and explore the institutional processes through which solidarity has evolved over three periods: 1990–1999, 2000–2009, and 2010–2017. I examine the practice of EU states allocating responsibilities in the internal and external dimensions of EU asylum policy, and I consider jurisprudential developments concerning the interpretation and implementation of relevant EU mechanisms (the Dublin system, relocation, and safe third country rules). This analysis confirms my hypothesis that, despite its positivization in law, an impoverished version of solidarity has been operationalized as a response to the increasing need for the reception and protection of refugees on the ground. The Syrian crisis has exposed the European asylum system’s deficiencies, most notably the uneven distribution of responsibilities amongst EU states and the shifting of responsibility to third countries at the expense of refugee rights.
In order to explain why this is the case, I draw a comparison between today’s concept of European asylum solidarity and earlier conceptions of solidarity (in antiquity, the Christian tradition, Roman law, French solidarism, and the early days of European integration). Such a comparison illustrates that there is an inherent dichotomy in the way the concept is put to use rhetorically. This is how solidarity appears to have functioned within the context of European asylum policy, namely as a site of political struggle. It has provided a technocratic vocabulary that has allowed the EU to pursue its agenda; a vocabulary that has allowed countries like Germany to promote their liberal sympathy with refugees; a vocabulary of nationalist solidarity for Visegrád countries to use in resisting influxes of Muslim refugees; a vocabulary that has allowed peripheral states like Greece and Italy to shirk their international and European responsibilities; and finally a vocabulary that has allowed other states, including the Nordic countries, to justify more restricted asylum policies.
I conclude that the principle of solidarity in EU asylum law is likely to continue to have only a marginal impact on interstate sharing practices and that it is unlikely to lead to higher protection standards unless the competing visions of community to which the concept of solidarity invariably alludes are put into conversation with one another in a way that allows for the emergence of an association of all affected actors (EU Member States, third countries, and arriving refugees).
Refugee Status Determination in the Context of 'Natural' Disasters and Climate Change: A Human Rights-Based Approach
Datum för disputation: tisdagen den 22 maj 2018
Fakultetsopponent: professor Michelle Foster, Melbourne Law School, Melbourne, Australien
This thesis is concerned with refugee status determination (RSD) in the context of ‘natural’ disasters and climate change. Considering evidence that the legal predicament of people who seek recognition of refugee status in this connection has been inconsistently addressed by judicial bodies in leading refugee law jurisdictions, and identifying theoretical as well as doctrinal impediments to a clear and principled application of international refugee law in this connection, the thesis asks the question ‘in what kinds of circumstances may a person establish, within the meaning of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, a well-founded fear of being persecuted for a Convention reason in the context of ‘natural’ disasters and climate change?’
Arguing that RSD cannot safely be performed without a clear understanding of the relationship between natural hazards and human agency, the thesis draws insights from disaster anthropology and political ecology that see discrimination as a contributory cause of people’s differential exposure and vulnerability to disaster-related harm. This theoretical framework, combined with insights derived from the review of existing doctrinal and judicial approaches, prompts a critical revision of the dominant human rights-based approach to being persecuted, which is argued to be event-based and preoccupied with the nature of the harm, rather than the discriminatory context in which exposure and vulnerability arise. A novel human rights-based interpretation of the refugee definition is adopted and applied in answer to the research question.
Building the Nagoya Protocol on Access and Benefit-Sharing: Institutional Design and Effectiveness
Datum för disputation: tisdagen den 15 maj 2018
Fakultetsopponent: professor Elisa Morgera, University of Strathclyde, Glasgow, Storbritannien
The Convention on Biological Diversity (CBD) was designed in accordance with the framework protocol approach, which comprises treaty bodies such as Conferences of the Parties (COP) and compliance mechanisms and sets out broad standards to be made more precise through the making of protocols. The CBD’s third objective, access and equitable sharing of the benefits arising from the utilization of genetic resources (ABS), was significantly developed by the Nagoya Protocol.
The purpose of this thesis is to study the Nagoya Protocol in terms of the building and design of an effective regime; a ‘special regime’ that in different ways deviates from general international law. The Protocol is examined from an institutionalist perspective, founded on the concept of ‘institutionalization.’ The thesis proceeds from the observation that states often build regimes to solve collective action problems. Focus is on institution-building as a means to ensure effectiveness, especially on the design and operation of the compliance mechanism.
The main research question is how the Nagoya Protocol’s effectiveness could be promoted, ensured and enhanced. This question is broken down into several more specific questions; how treaty bodies such as COPs are regulated by international law, etc. While international law focuses on form and powers, international relations research focuses on institutional design and the institution’s functioning in practice.
The thesis combines international regime theory and international legal theory. A significant part of the interdisciplinary work is conceptual; it deals with the shifts towards stronger emphasis on treaty coordination, effectiveness, and compliance. The regime theory used is social constructivist. International legal theory employs legal analysis based on the sources doctrine, as well as legal sociology. Social constructivism operates as meta-theory and a practice approach is applied.
The thesis is structured around one international relations (IR) topic and four international law topics; the Nagoya Protocol’s relationship with (1) treaty law; (2) state responsibility; (3) customary law; and (4) institutional law, respectively. It ties together insights from these topics and examines the implications they have for the design and effectiveness of the compliance mechanism.
One conclusion is that constructivism provides a fuller understanding than rationalism of institutions for ensuring effectiveness and how to design them. Another conclusion is that compliance has not replaced state responsibility, but rather provides COPs with authority to impose coercive measures in response to non-compliance. A main contribution is the further integration of international law and international relations as an interdisciplinary research tool which enables the generation of practical knowledge about how to design effective compliance mechanisms.