In constitutional law and practice, situations of public emergency relate mostly to wars, terrorism, civil unrests and natural disasters of large scale. While there has always been a consensus that the list of other relevant situations is not exhaustive, little attention has been given so far to other phenomena. Despite the fact that migrations historically form a part of human identity, attitudes towards them changed drastically in the last decades, especially in the developed countries to the extent that (il)legal migration policies already play a dominant role in the public discourse. With strong emphasis on intertwining migrations and migrants with a threat and/or nuisance and, ultimately, to criminalise them in some part (crimmigrations), a door opens to apply the same sentiment in scenarios of public emergency. Foreignness is an essential element in the narrative of public emergencies, be it foreign powers intending to occupy a territory, Korematsu-like citizens of foreign ancestry posing a threat to the statehood, etc. Migrations of foreigners, either refugees or other migrants, may fall into this category as well. Nevertheless, it begs a question whether a different narrative emerges from recent state actions against mass migrations, in particular in Europe. First, should the massive scale of migrations as such be understood as a sufficient factor to trigger the law of public emergency or initiate the adoption of it? In the public emergency narrative, do mass migrations pose a threat due to their massiveness or illegal nature or anything else? And what if mass migrations constitute a perceived threat only or expose an inability or unwillingness of states to cope with them? Second, in the sense of legitimacy, mass migrations are a threat to who/what exactly? Mass migrations of 2015 and 2016 in Europe are an unfortunate reminder of the weak cohesion between the European Union Member States as many of them unilaterally (ie prisoners’ dilemma) adopted several severe measures as a response to the perceived threat of mass influx of refugees and other migrants. In the aftermath of this last massive migratory challenge, a series of emergency legal tools have been implemented across Europe within and beyond the EU treaties framework (TEU, TFEU): hotspots, externalisation of borders, emergency relocation programmes as well as temporary regulations at the domestic level, such as suspensions of the Dublin regulation or the Schengen zone. While we will skip the European dimension of coping with public emergencies, it is noteworthy to analyse reactions of those states that were seriously affected, either on the so called Balkan route or the Mediterranean route. More concretely and in line with F. Ní Aoláin and O. Gross’s categorization of models of emergency powers (accommodation, law for all seasons, extra-legality) we would also like to decipher approaches of selected national governments, in particular neighbouring Slovenia and Italy. We claim that the measures do not fall simply into only one model, but rather “hybridly” cherry-pick the most utile element of each model. Authors will also give special emphasis to what extent states may limit fundamental rights of masses of migrants in times of extraordinary crises, in particular the access to international protection and the freedom of movement. While there is a growing case law of the ECrtHR on procedural and substantive rights of migrants in time of mass influx, it seems that human rights’ narrative does not echo properly into ears of all national governments. Slovenia, for example, recently set impediments to access international protection in specific public emergency-like situations of mass migrations. Some other neighbouring states expressed intention to do so as well. Italy also enacted new extraordinary laws aimed at limiting procedural and mobility rights of migrants at the borders while strengthening controls on NGOs involved in migrants’ rescue operations at sea. These laws of exceptions clearly show the shortfalls of traditional European human rights regimes in time of crisis (emergency derogation clauses; balancing tests for limiting rights, remedies, subsidiarity and solidarity principles) and raise fundamental questions on the legitimacy and compliance of these national emergency-like regulations with international obligations of transit countries dealing with the emergency governance of migratory routes. We claim that the primacy and centrality of the 1951 Geneva Convention in the international refugee protection regime, including in situations of mass influx, should have an impact on balancing the competing interests of state, community and migrants. Eventually, the reference to the aims and scope of the Refugee Convention contributes to clarify the boundaries between classic emergency governance mechanisms and the crisis of the European migration agenda as perceived at the external borders.

Mass Migrations and the Public Emergency Narrative. Managing migration governance in time of crisis

Adriana Di Stefano
2019-01-01

Abstract

In constitutional law and practice, situations of public emergency relate mostly to wars, terrorism, civil unrests and natural disasters of large scale. While there has always been a consensus that the list of other relevant situations is not exhaustive, little attention has been given so far to other phenomena. Despite the fact that migrations historically form a part of human identity, attitudes towards them changed drastically in the last decades, especially in the developed countries to the extent that (il)legal migration policies already play a dominant role in the public discourse. With strong emphasis on intertwining migrations and migrants with a threat and/or nuisance and, ultimately, to criminalise them in some part (crimmigrations), a door opens to apply the same sentiment in scenarios of public emergency. Foreignness is an essential element in the narrative of public emergencies, be it foreign powers intending to occupy a territory, Korematsu-like citizens of foreign ancestry posing a threat to the statehood, etc. Migrations of foreigners, either refugees or other migrants, may fall into this category as well. Nevertheless, it begs a question whether a different narrative emerges from recent state actions against mass migrations, in particular in Europe. First, should the massive scale of migrations as such be understood as a sufficient factor to trigger the law of public emergency or initiate the adoption of it? In the public emergency narrative, do mass migrations pose a threat due to their massiveness or illegal nature or anything else? And what if mass migrations constitute a perceived threat only or expose an inability or unwillingness of states to cope with them? Second, in the sense of legitimacy, mass migrations are a threat to who/what exactly? Mass migrations of 2015 and 2016 in Europe are an unfortunate reminder of the weak cohesion between the European Union Member States as many of them unilaterally (ie prisoners’ dilemma) adopted several severe measures as a response to the perceived threat of mass influx of refugees and other migrants. In the aftermath of this last massive migratory challenge, a series of emergency legal tools have been implemented across Europe within and beyond the EU treaties framework (TEU, TFEU): hotspots, externalisation of borders, emergency relocation programmes as well as temporary regulations at the domestic level, such as suspensions of the Dublin regulation or the Schengen zone. While we will skip the European dimension of coping with public emergencies, it is noteworthy to analyse reactions of those states that were seriously affected, either on the so called Balkan route or the Mediterranean route. More concretely and in line with F. Ní Aoláin and O. Gross’s categorization of models of emergency powers (accommodation, law for all seasons, extra-legality) we would also like to decipher approaches of selected national governments, in particular neighbouring Slovenia and Italy. We claim that the measures do not fall simply into only one model, but rather “hybridly” cherry-pick the most utile element of each model. Authors will also give special emphasis to what extent states may limit fundamental rights of masses of migrants in times of extraordinary crises, in particular the access to international protection and the freedom of movement. While there is a growing case law of the ECrtHR on procedural and substantive rights of migrants in time of mass influx, it seems that human rights’ narrative does not echo properly into ears of all national governments. Slovenia, for example, recently set impediments to access international protection in specific public emergency-like situations of mass migrations. Some other neighbouring states expressed intention to do so as well. Italy also enacted new extraordinary laws aimed at limiting procedural and mobility rights of migrants at the borders while strengthening controls on NGOs involved in migrants’ rescue operations at sea. These laws of exceptions clearly show the shortfalls of traditional European human rights regimes in time of crisis (emergency derogation clauses; balancing tests for limiting rights, remedies, subsidiarity and solidarity principles) and raise fundamental questions on the legitimacy and compliance of these national emergency-like regulations with international obligations of transit countries dealing with the emergency governance of migratory routes. We claim that the primacy and centrality of the 1951 Geneva Convention in the international refugee protection regime, including in situations of mass influx, should have an impact on balancing the competing interests of state, community and migrants. Eventually, the reference to the aims and scope of the Refugee Convention contributes to clarify the boundaries between classic emergency governance mechanisms and the crisis of the European migration agenda as perceived at the external borders.
2019
978-88-6056-640-9
Migration, European Union, Crisis, Emergency, human rights, Slovenia, Italy
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/20.500.11769/402482
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