Non-Governmental Search and Rescue Operations: So contested, yet so crucial

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Daniela Irrera

For the third consecutive year, growing numbers of migrants have been crossing the central Mediterranean to reach the shores of Europe. The European Union (EU) has remained without an effective policy or a common solidarity approach to address this challenge. In the meantime, national coastguards have returned to patrol and monitor at sea in order to rescue people in need. They do so with the (not always indispensable) support of Frontex.

One central pre-requisite for managing transboundary crises is coordination across different types of actors, including non-governmental organisations (NGOs). Search and rescue operations (SARs) by NGOs have complemented existing EU and member state operations and have significantly mitigated the effects of the humanitarian emergency: since 2015 a growing number of people have been rescued every year. Nevertheless, there have been continued and aggressive attacks against NGOs. For example, according to Frontex and a public prosecutor from Catania (Italy), NGOs are alleged to have colluded with people smugglers in illicit activities. They are also accused of contributing to destabilising the wider area because of their ill-managed SAR operations.

What explains such criticisms? The relationships between NGOs, member states and the EU regarding the humanitarian crisis in the Mediterranean has gone through four different phases, each responding to particular aspects of the wider crisis.

Initially, non-governmental SAR represented a new phenomenon in the Mediterranean. NGOs have been regarded as controversial actors, particularly within the wider humanitarian sector. Ranging considerably in their size and resources, they have been extremely active across almost all areas at issue. Their presence is essential for intergovernmental organisations and national states. They are closely involved in the international system. The first SAR in the Mediterranean in Spring 2015 challenged the popular perception of NGOs: traditionally, NGOs were involved in humanitarian efforts following man-made and natural disasters. Despite the novel environment of the refugee crisis, the NGOs’ SAR actions were nevertheless consistent with their earlier activities in protecting human lives.

Subsequently, NGO activities turned into a convenient phenomenon. In Spring 2016, their operations intensified and also became more specialised. Well-established NGOs, such as the MSF and Save the Children, and newly created ones, such as MOAS and SOS Méditerranée, provided examples of (sometimes uneasy) cooperation among organisations. They offered well-equipped vessels, rescue facilities and medical services that complied with international maritime law and were supervised by competent authorities. In doing so, NGO SARs proved extremely useful in addressing the worst effects of the refugee crisis, by reducing the number of fatalities, and, more importantly, by mitigating the lack of serious EU commitment and the failure of the solidarity approach.

More recently, especially following the agreement with Turkey, the intention to replicate this agreement with other countries, and the launch of a resettlement plan, non-governmental SARs represent a troublesome phenomenon. Unable to cope with new arrivals and constrained by populist campaigns, political elites would prefer approaches that, without violating their international humanitarian duties, would prevent people from travelling by sea and would support their electoral needs.

In the absence of any major change, it is likely that NGOs’ SARs will become an ‘uncontainable’ phenomenon. NGOs are becoming increasingly efficient and professionalised in their activities. They could extend their activities into states that are close to collapse. NGOs could be deployed in any rescue operation, as the example of the MOAS operation in the Adaman Sea in the Indian Ocean demonstrates.

This trajectory of increasing NGO prominence also reflects on the different phases of EU performance throughout the refugee crisis. The refugee crisis produces transboundary implications which require the involvement of different actors, instruments and procedures. The management of the humanitarian dimension of the refugee crisis requires the adoption of a comprehensive and collective approach.

If member states wish to preserve the moral high ground by prosecuting NGOs alleged of colluding with smugglers, then this requires the adoption of an effective and comprehensive set of transboundary policies and measures that set aside state-centred perspectives regarding asylum requests. NGOs would then no longer be required to continue their rescue missions at sea and could return to their more traditional fields of activity.

The question therefore is whether EU member state governments are ready to change their present approach. If they are not, then migration will continue and humanitarian emergencies will require responses. In that case, regardless of whether one considers their activities as legitimate or not, the NGOs’ activities will be essential in mitigating the well-organised, but, as yet, ineffective actions by states, and supplementing the lack of a collective response by the EU.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Voice, Disloyalty and Brexit: The Attractions and Pitfalls of Differentiated Integration

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Nick Sitter

The European Union is fundamentally about power-sharing. The original six member states built a political system based on consensus. It allowed a supranational executive to manage day-to-day policy, but legislation required the consent of most of its members. In practice, this meant unanimity. As the EU grew, member state governments accepted that participation in the EU came at the price of having to accept some policy measures with which they did not agree.

In general, EU’s member states have been able to live with the resulting set of compromises. Broadly speaking, their options were – as Albert Hirschman memorably put it half a century ago: Exit, Voice, and Loyalty. If governments could not loyally implement EU policy (or get away with creative forms of transposition), they could voice opposition and attempt to change it. This resulted in a range of opt-ins and opt-out – or differentiated integration.

Ultimately, a dissatisfied state could leave the EU. Greenland did so in 1985, and now the UK is on its way out. But, in the meantime, others have explored a new option – disloyalty. Since 2010, the Fidesz government in Hungary has confronted the EU openly, demanding substantial changes to EU policy and circumventing EU law by way of creative compliance. Since December 2015, the newly elected Polish Law and Justice (PiS) government has embarked on a similar strategy.

Voice has proven to be the easiest and most effective option by far. When the Danish government failed to secure a positive vote in the referendum on the Maastricht Treaty, it negotiated a series of opt-outs with its EU partners, secured the approval of almost all Danish parties, and won a second referendum. Sweden held a referendum on the common currency, and when the government’s effort to secure a ‘yes’ failed, it argued (successfully) that it was not legally obliged to join EMU. In similar vein, the UK opted out of the Schengen arrangements, but ‘opted in’ to a number of specific policies. In all three cases, the governments worked from a relatively weak domestic position, inasmuch as internal party dissent or opposition in parliament made it essential to accommodate Euro-scepticism. The EU’s history shows that voice actually works well. The danger comes when a prime minister too obviously uses the threat of a referendum to press for concessions that no other member state is prepared to accept – as David Cameron learnt in February 2016.

Disloyalty has been the most creative approach to European integration, and it seems to have served the Hungarian government well. Despite criticism from the Commission for its persistent effort to centralise political and economic power and limit the rule of law, Hungary has so far avoided anything more serious than ordinary infringement procedures. What Viktor Orbán proudly calls his ‘illiberal democracy’ thrives in the EU, has been supported by EU funding and has been, at the time of writing, protected by his fellow members of the European People’s Party. The danger for Fidesz is not so much that the disloyalty strategy might not deliver the goods, but rather that their Warsaw-based ideological bed-fellows’ more open and assertive confrontation might provoke a more resolute response from the EU.

All three options – voice, disloyalty and exit – involved their own false promises and pitfalls. A governing party that voices too much protest about its being outvoted in Brussels, might find itself outflanked by genuine Eurosceptics. A government that bends the laws too far might find itself on the receiving end of ever sharper criticism from its fellow member states. And the Eurosceptic government of a state on the way out runs the danger of overestimating the importance of its own power.

Brexit has taken the question of differentiated integration to a completely new level. The Brexit process is fraught with far more uncertainty than any other of the EU’s relationships with its other ‘quasi-members’ – Norway, Iceland and Liechtenstein. The Norwegians opted to join the Single Market, including free movement, supranational courts and all. For more than two decades, the European Economic Area agreement has worked due to goodwill on both sides. Most Norwegian governments have been more pro-EU than their parliaments (and, arguably, their voters), and carefully balanced their quest to take part in the Single Market against the constraints imposed by Eurosceptic electorates. The result may not be that pretty, but it has proven remarkably durable.

Theresa May has made it clear that she believes beating ‘saboteurs’ (as the Daily Mail put it) with an enhanced Conservative majority in the June election will make it easier for her to confront ‘Brussels’. This might go down well among those celebrating the achievements of the colonial ‘perfidious Albion’, but half a century of Scandinavian experience suggests that she might well be wrong.

A big lesson from the Scandinavian experience is that an outsider’s most important task is to exert influence on EU decision-making. The danger that Theresa May will face if her party wins a big Commons majority in June is that she will not be able to point to domestic constraints when trying to work out compromises with her EU partners. In zero-sum negotiations it might be useful to have strong backing at home and room for manoeuvre – but when negotiating complex institutional arrangements with the EU, the Scandinavian lesson is that it may be far more productive to emphasise the need for broad consensus at home and a willingness to accommodate both Eurosceptics and the EU’s legal system. In other words, modesty and being in tight domestic spots enhance negotiation positions with EU member states, not sabre-rattling hubris.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Democratic backsliding in the EU: accidents, coincidences or systemic crisis?

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Nick Sitter
 
The danger that one or more member states might give up on liberal democracy and slide back into authoritarianism has haunted the EU ever since its first institutions were designed more than 60 years ago. Only a quarter of the member states had more than 15 years of uninterrupted democracy at their time of joining. The original six members included two recent dictatorships and four countries they had invaded in 1940. Enlargements in the 1970s and 1980s brought in long-established and new democracies in equal numbers, one of whom (Spain in 1981) had experienced a (short-lived) coup d’état only five years prior to joining. The end of the Cold War opened the integration process to a few long-established neutral liberal democracies and many more former Warsaw Pact dictatorships.
 
The ECSC and the EEC were established to use supranational economic integration to protect peace, prosperity and democracy. The Six’ common commitment to liberal democracy, market economies and the rule of law was at the core of the new project in the 1950s. When EU leaders placed eastern enlargement firmly on the agenda in Copenhagen in June 1993, they stipulated that new member states must be liberal democracies, respect human rights, have a functioning market economy and be capable of implementing the acquis communautaire. More recently, however, academics, journalists and politicians have begun to ask whether some EU states are going back on these commitments. In the process they coined the term democratic backsliding. 
 
The first warning signs that European democracies might go back on their commitments to democracy and the rule of law came at then end of the 1990s. In 1997, the Commission relegated Slovakia to the back of the membership queue on the grounds that under Vladimír Mečiar’s government, it did ‘not fulfil in a satisfying manner the political conditions set out by the European Council in Copenhagen, because of the instability of Slovakia’s institutions, their lack of rootedness in political life and the shortcomings in the functioning of its democracy’. But after changing government, Slovakia caught up and joined among the first wave of post-communist member states in 2004. The second case, two years later, was more difficult to handle: When, after the Austrian elections of October 1999, the far-right Austrian Freedom Party (FPÖ) joined the conservative Austria People’s Party (ÖVP) in government, the other 14 member states responded with a combination of bilateral boycotts of the Austrian government and the appointment of a committee of three ‘wise men’ to report on developments. The next autumn, upon the wise men’s recommendation, sanctions ended.
 
One real (Slovakia) and one potential (Austria) instance of backsliding could be dismissed as isolated accidents. But this encouraged the EU to put in place rules to deal with countries that violate its fundamental values as set out in Article 2 of the Treaty, including freedom, democracy, equality, the rule of law and respect for human rights. Article 7 effectively allows the remaining member states to agree by unanimity to suspend the membership of such backsliding states. In 2014 the Commission added its Rule of Law Framework: a three-stage process that begins with an assessment of potential systemic threats to the rule of law. It may issue a Rule of Law Opinion; which could be followed up with a Rule of Law Recommendation, including a time table for compliance; and finally, if all else fails, could end with an Article 7 procedure.
 
The first real test of the EU’s ability to deal with backsliding came after the Hungarian 2010 election saw the national populist Fidesz (a member of the European People’s Party) win an absolute majority of the votes and a two-thirds majority of the seats. Over the next seven years, the government introduced a new constitution, centralised political power, and passed a number of laws that the Commission deemed incompatible with EU rules and in breach of the EUs fundamental values. This culminated with prime minister Viktor Orbán’s ‘illiberal democracy’ speech in 2014, where he set out his vision of a non-liberal democracy, and the party’s wholehearted turn from national populism to a radical right wing profile.
 
The European Commission chose to deal with Hungary through a two-track strategy of diplomatic pressure and a rather timid application of ordinary EU infringement procedures. For example, when Fidesz lowered the retirement age for judges and politicised the judiciary through replacement appointments, the Commission chose to confront this on the grounds of illegal age discrimination. At the same time, Commission President Barroso voices his concerns ‘about the quality of democracy in Hungary’. Something similar happened with the media law, laws on relocation of court cases, political advertising, and special taxes to raise money in the event of EU fines. The overall results were not impressive: The government formally adjusted its legislation where necessary, but implemented its policies anyway. In effect, Hungary invented a new strategy of creative compliance with EU law – disloyal implementation. It got away with this partly thanks to the protection that EPP membership offered to the government, and partly because the Commission was reluctant to back up its diplomatic pressure with forceful use of its legal tools. Moreover, if Slovakia in 1997 was a lone backsliding accident, Hungary after 2010 could be dismissed as a once-in-a-decade coincidence.
 
The third serious challenge came as a consequence of the Polish Law and Justice Party’s (PiS) election victory on 25 October 2015. The new parliament used an accelerated procedure to amend the Law on the Constitutional Tribunal and annulled its predecessors’ judicial nominations. When the constitutional court overruled this, the government curtailed the court’s powers and raised the threshold for future rulings. In the following months, the government blocked the publication of the court’s judgments, thereby preventing constitutional court rulings from taking effect.
 
This time the Commission reacted more forcefully – at least at first. As Ian Fleming’s Goldfinger put it, once might be happenstance, twice a coincidence, but the third time it is enemy action. The Commission started investigations under the Rule of Law Framework, and published its first Rule of Law Opinion 1 June 2016. A Rule of Law Recommendation followed on 27 July. But the Polish government simply ignored the Commission’s three-month limit. The Recommendation was, in prime minster Beata Szydło‘s words, ‘incompatible with the interests of the Polish state’. A new deadline followed in December, and duly expired in February 2017. At the time or writing, the stand-off was unresolved.
 
The EU is based on the assumption that member states loyally implement EU law to the best of their abilities. To be sure, the EU has struggled with individual member states’ occasional lack of compliance, but this has mostly been a matter of limited capacity or poor implementation in practice. Open defiance of EU rules has been the extreme exception – as testified by the 1995 ‘beef crisis’ when the UK abstained from votes in the Council in protest over veterinary restrictions on beef exports. Member states could voice their opposition to any given rule or proposal, but if they were unable to accept the overall political system, with all its trade-offs, compromised or package deals, Article 50 offered another option: Exit.

Fidesz’s political genius lies in the invention of a third strategy, beyond voice but short of exit – disloyalty. During its first seven years, this strategy has worked well for Fidesz. It allowed the Commission to claim a degree of victory by forcing formal compliance, while, in Hungary, Orbán could present himself as the defender of national interests against foreign agents.
 
PiS’ victory in Poland changed all this. Although the Polish election provided Fidesz with an ideological ally in the Council, it also drew attention to the problems of backsliding and the inadequacies of the Commission’s two-track political pressure-plus-infringement strategy. Lech Kaczyński’s party seems to have learned the Hungarian lessons well, and gotten away with defying the Commission even without EPP protection. Will this encourage others to follow suit? Can the EU stop this with one or two cases of firm action? The problem is that double backsliding presents a particular challenge because the rules for suspending membership require unanimity among the remaining states: Orbán promised to veto any Article 7 move against Poland, and could reasonably expect the favour to be returned. Can the EU opt for a double Article 7 procedure against two backsliding states at the same time?

PiS seems determined to defy the European Commission openly. The big question is whether the Polish strategy of open defiance will turn backsliding into a problem of such magnitude and salience that the Commission and the rest of the member states can no longer ignore the systemic threat this poses to the EU?

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Statement on Hungarian government’s attack on CEU

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We are writing to draw your attention to the Hungarian government’s current attack on Central European University, one of the partner institutions of the TransCrisis consortium.

As many of you know, CEU is a private university located in Budapest and chartered both in the US (New York) and Hungary. According to the latest QS rankings, the university is ranked 42nd globally in Politics and International Studies. Viktor Orban’s government has tabled legislation that will effectively prevent CEU from continuing to operate in Hungary. The move is part of a wider campaign against independent institutions in Hungary, which Orban explicitly set out to turn into an ‘illiberal democracy’.

You can read CEU Rector and President Michael Ignatieff’s statement here

And some background in the Guardian

All of you who want to support CEU may send a statement to European Commissioner Tibor Navracsics: cab-navracsics-contact@ec.europa.eu

And/or European Parliament Culture and Education Committee Chairman MEP Petra Kammerevert: petra.kammerevert@europarl.europa.eu

Twitter #istandwithCeu

Thank you for your support.

Nick Sitter & Agnes Batory (CEU, TransCrisis partners)
Martin Lodge (TransCrisis coordinator)

EU to the rescue no more?

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Lydie Cabane and Martin Lodge (Centre for Analysis of Risk and Regulation, LSE)

EU member states are said to have largely lost their national economic boundary control: contaminated food from one member state can cause death in another member state, competition over regulatory standards can create systemic risks as the financial crisis has highlighted, and asymmetric economic fortunes can lead to migration.

The European Union is traditionally at the heart of dealing with transboundary policy problems. Whether, however, EU governance can effectively deal with these varying types of transboundary crisis has been a long-standing preoccupation. Traditionally, these debates have sought to explain differences in governance regime by pointing to the type of policy (such as ‘barrier eliminating’ (negative) vs new policy-creating (positive) integration, the type of regulatory standards (market-making, market-correcting) or the diversity of member state administrative traditions.

Over the past decade, however, different factors have emerged on the political landscape. These factors are likely to have fundamental effects on the ways in which EU governance operates. One central trend is the re-nationalisation of electoral politics. Even before the Brexit-referendum, the EU was no longer seen as a solution, but as an electoral issue to be campaigned against. The other factor concerns financial depletion of national administrations in the aftermath of the financial and sovereign debt crises. At the same time, the EU has set up more or less visible transboundary crisis management systems to deal with potential threats to its existence and challenges to market integration.

So how do these factors affect the EU crisis management arrangements? Firstly, whatever the exact nature of regime, any policy requires systems for setting and updating its standards or goals. Secondly, policies need mechanisms for information gathering so as to detect the emergence of risks and the compliance of member states. Third, policies need mechanisms to change the behaviour of member states so as to ensure compliance. We are arguably observing challenges to EU governance across all these three regime components. Partly this makes the study of EU governance at this time particularly interesting. However, for those interested in effective crisis management, these dynamics are more problematic.

Take the regime for invasive alien species as an example. This is a risk that affects all member states at one level representing a cost of €12.5 billion per year to the EU. At another level, which species are regarded as invasive and are having an effect on local ecological systems varies across member states, given their climate, state of ecological diversity and trade connections. However, all states face similar challenges: changing temperatures mean that species spread into new territories and trade integration means that invasions are increasingly likely. It follows that member states need not just to agree what plants and animals represent invasive alien species, but they also need to commit to tackle species, even if their presence is largely a threat to other states’ ecology rather than their own. One recent example is the Asian Hornet which ‘landed’ in France and has caused considerable debate about (the lack of) effective management strategies, especially with bee-keepers whose hives were affected, and with neighbouring countries complaining about the failure to contain the invasion early on.

Invasive alien species represent a relatively new policy domain. The EU recently passed a Regulation (1143/2014) to tackle this transboundary problem. At the heart of the regime is a list of invasive species which attracted considerable debate among interested parties (such as plant export firms, environmental NGOs and the fur industry), inter-institutional conflict between the European Commission and the European Parliament, and debate about the quality of risk assessment that summarised scientific knowledge about particular species. The second pillar is the commitment by member states to establish systems to monitor species and take actions, when required. While it might be too early to tell whether the second pillar is functioning, it is presently not clear to what extent member states are committed to creating and maintaining such systems in view of resource depletion. The first pillar, the list, is arguably also under threat: updating of the list requires risk assessments and it is not apparent whether the European Commission and the member states have sufficient resources to conduct these. There is therefore a distinct risk of fossilisation and increasing irrelevance of this particular EU regime.

The UK plays a unique role in this context. It was central to the development of the EU regime and claims to have one of the most advanced risk assessment and management systems in place. At the same time, Brexit raises essential questions: does the UK want to adopt its own list which will require considerable negotiation with the EU, or does it want to continue shadowing the EU that may be less enthusiastic about this topic, as one of its central promoters is heading to the departure lounge rather than the negotiation table?

We can find similar dynamics also in other regimes that are associated with different EU decision-making procedures. Take, for example, the case of youth unemployment. The promotion of the so-called Youth Guarantee was seen as a noteworthy policy development in the aftermath of the financial crisis. It was promoted by member states (especially Germany and France) and by the European Commission, and it, somewhat uniquely, combined traditional elements of benchmarking and peer-review (as part of the ‘European semester’) with substantial financial commitments (totalling €12 billion). There are, unsurprisingly, debates about the level of solidarity, funding commitments and the choice of policy tools. Member states, such as Spain, with devolved competence for such youth schemes, had problems in coordinating and dispensing monies. Member states with the highest youth unemployment figures (above 40%) were also those whose administrative capacities were the most affected by the financial and debt crisis. Local administrations were faced with the problem of identifying potential recipients of such schemes, especially in those member states whose youth unemployment figures were reaching historically high levels (Italy, Greece and Spain). Others (UK) considered this kind of active labour market policy to be ill-suited to their own local conditions and did not implement the Youth Guarantee. Beyond the problem of administering such schemes, there was also the concern with the use of indicators. For some, data-gathering and comparing exercises offered scope for comparison and learning. For others, these exercises were largely decoupled from the real political decision-making on particular issues, especially as it was not clear how much effort member-states actually placed in providing relevant data. In short, the ability of the EU to be seen doing crisis management for its youth is largely dependent on member states goodwill and capacities.

These are just two examples that highlight the critical role that member states play in EU governance. Member states are central to the updating of regimes, they are central to the reporting of the information that informs decision-making, and they are central to ensuring that policies are put into action. Their actions (or rather lack of) can have considerable effects on other member states and the EU. It highlights the highly fragile nature of EU governance: it depends on the motivation and the capacity of member states to contribute to standard-setting, information-gathering and behaviour-modification. Motivation to contribute to the existence of these regimes is not just shaped by domestic interests and partisan orientations, it is also affected by the wider commitment towards supporting the EU as a legitimate source for addressing transboundary crisis management issues. Not unrelated, however, are questions about capacity: it is not clear whether administrative systems are in place that support the effective organising of EU multi-level governance regimes, given limited resources and the limited legitimacy attributed to the EU.

While it may be too early to write an epitaph to EU governance as legitimate source for crisis management, it is important to realise that the foundations for effective EU crisis management are cracking at the seams.

The authors of this blog write in a personal capacity and do not represent the TransCrisis project team as a whole.

Why the EU’s migration policy is unlikely to succeed

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Fulvio Attinà, University of Catania

In 2015, the EU’s management strategy for dealing with local and global causes of migration was to keep migrants outside of the EU’s borders. This strategy represented a mix between some established measures, such as a tightening of border controls, and some new ones, namely bilateral agreements with transit and origin countries. In these agreements, the EU exchanged financial aid and political concessions for the detention and return of migrants. This policy was shared by all member states who customise their action to their particular national conditions and political interests. In other words, EU member states recognise the transnational nature of the migration phenomenon as well as the need to control and manage migration through common actions and coordinated strategies. However, they nevertheless maintain their own national interpretation as to the underlying nature of the migration phenomenon. Member states prefer their own policies in making the common management strategy happen. Most member states are keen to insulate their societies from the dynamics and underlying conditions that drive contemporary migration flows.

To reduce the negative impact of immigration on any society, policy-makers are faced with choices. These can include options such as:
1. The formation of long-term partnerships with international actors so as to address the global and local causes of migration flows
2. The tightening of border controls and strengthening of coordination with transit and origin countries so as to reduce the size of the migration flow
3. The strengthening of societal and state capacities to accommodate and integrate migrants, thereby increasing resources available to deal with the migration crisis and facilitating a return to ‘normal’ public life
4. The adoption of a policy that communicates the importance of developing open and inclusive societies in an age of population movements and soft borders.

The European response, so far, has been to rely largely on the first and second option. The second option is the one that appears to be preferred by European citizens as far as opinion polls and recent election results seem to suggest.

However, it is questionable whether this response offers a valid long-term option for at least three reasons:
1) A policy to limit immigration cannot resolve the migration crisis as it does not address the causes of migration. These causes are unlikely to weaken in the short to medium term. Cooperation with the countries of origin and with transit countries is essential; but these governments benefit from allowing emigration to happen given their dire economic circumstances.
2) A policy to restrict immigration flies in the face of the long-established advocacy of a ‘well-managed immigration’ policy. It does not deal with the needs of European labour markets, especially in light of the needs of certain sectors, such as construction, agriculture, fisheries, care, cleaning and catering.
3) A restrictive policy violates the principles of an open society that used to be espoused by European states. Adopting restrictive approaches will leave its imprint on the civil values of European citizens and will inevitably damage the reputation of the EU and its member states as defenders of humanitarian values, human rights and international law. It risks cutting off Europe from broader developments in global society.

A combination of the four options outlined above is therefore not just inevitable but also appropriate. Apart from fine-tuning policies that deal with bilateral agreements and tightening borders, it requires policies that enhance societal receptiveness to the integration of refugees and forced immigrations. These policies will boost economic growth in the long-term. Furthermore, they require a communications approach that explains migration as an unavoidable consequence of global trends and that endorsing these trends will put Europe at the forefront of global dynamics.

Adopting such a mixed approach is by no means easy. It involves reform of entrenched principles regarding the organisation of the state, it requires a redefinition of what qualifies as a state community and it therefore also requires a redefinition of citizenship. It is fashionable to speak of a ‘new normal’ in the face of economic and financial volatility, terrorism and climate change. It is important to understand that migration is different. Migration is about much wider social processes that call for a complete overhaul of our understanding of the nation state.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Do citizens support the EU management of the migration crisis?

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Fulvio Attinà, University of Catania

It has been widely suggested that the rise in irregular immigration since 2011 has encouraged the growth in support for anti-immigration parties. These parties have traditionally campaigned against the allegedly permissive approach of European governments towards irregular migration of third-country nationals. Citizens are said to have demanded the speedy adoption of consistent policy responses. The response by their political leaders was the well-documented tortuous decision-making process that sought to reduce immigration and minimise humanitarian duties as much as possible. At the same time, European governments reserved the right to tailor their common (European-wide) responses to national circumstances.

Does such a view of public opinion stand up to scrutiny? Has the management of the refugee crisis by European governments been supported by public opinion? Public opinion data provided by EuroBarometer (EB) surveys offers some indications. They also give rise to new sets of questions.

EB surveys (click on link below) highlight that only few EU citizens regarded immigration as a major European or national level issue at the time when irregular migration flows started to rise markedly. A small set of citizens did regard immigration as an issue of concern for their own private lives. Public concern did increase following the Italian government’s decision to carry out the Search and Rescue (SAR) operation  Mare Nostrum in October 2013 and it continued to rise until the completion of the EU-Turkey deal. Since then, levels of concern have declined; it appears that citizens are increasingly trusting their political leaders to manage the refugee crisis.

Immigration as one of top two most important issues

EB data also suggests that since 2010, and across the EU, most people perceive immigration as an issue of EU-level salience, fewer are concerned with the consequences at the national level and fewer than 10 per cent are concerned about immigration at a personal, or individual level. In other words, surveys suggest that EU citizens perceive immigration as a problem affecting Europe as a whole far more than as a problem affecting them personally. The data also reveals that it is economic issues that are at the forefront of individuals’ concerns.

In the view of Europeans, migration is a transboundary problem calling for a transboundary solution: 60 per cent of Europeans have been in favour of a common European policy on migration (click on link below). Indeed, when asked who should be taking additional measures against illegal immigrants, 30 per cent of Europeans favour the EU, and another 30 per cent a combination of EU and national measures, whereas 20 per cent advocate solely national policy responses.

EU 28 support for common migration policy

Concern about migration started to grow, therefore, around 2013 – at a time when EU leaders were arguing about responses to the refugee crisis. Concern grew further when acrimonious negotiations led to the first common EU management responses. However, following the ‘deal’ with Turkey and the creation of a common coastguard, public concern with migration has fallen away (since May 2016). It therefore appears that European citizens are largely content with the policy responses of their leaders. However, the question remains whether the current crisis management response provides a sustainable solution to the much broader migration problem.

The author of this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

Yellow Card to Hungary’s Backsliding PM, EU Trans-boundary Crisis on Hold

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Nick Sitter

On Sunday October 2nd, the majority of Hungarian voters handed a yellow card to Hungary’s football-loving prime minister simply by staying at home during a referendum that asked ‘Do you want the European Union to be able to mandate the obligatory resettlement of non-Hungarian citizens into Hungary even without the approval of the National Assembly?’ By doing this, they threw a spanner in the works of Prime Minister Viktor Orbán’s attempt to lead a Central European nationalist ‘cultural counter-revolution’ to reform the EU. The prospect of several states backsliding on their commitment to implement EU laws – and even on their commitment to liberal democracy – continues to represent a problem for the EU. But the danger of a ‘backsliding-crisis’ just became a little less acute.

In the four-month long referendum campaign, Orbán made much of the need to ‘send Brussels a message that they too can understand’ – as government billboards proclaimed in July.  If this was indeed the main motivation for the referendum, then it failed twice over. Although 3,282,928 ‘No’ ballots were cast in favour the government’s policy (98% of the valid votes), the referendum was invalid because it failed to reach the required 50% turnout. A valid referendum was the prime minister’s own criterion for success. He abandoned this only in the run-up to the referendum, when opinion polls began to indicate that many voters might stay at home. On the day, the government’s own criteria for success was simply a ‘No’ result. As expected, it achieved this. Indeed, in some districts not a single ‘Yes’ vote was cast. But the low turnout – only 40% of voters turned up and cast a valid ballot – makes it difficult for Orbán to try to impress ‘Brussels’ with his new mandate.

The ruling Fidesz party’s second problem with the referendum was that even if it had secured a valid result, other leaders in the EU could simply have dismissed the whole thing as an expensive propaganda exercise (Hungarian media reports put the costs at some 50 million Euro). The very wording of the referendum question invited ridicule: there was not even a pretence of a neutral formulation. The contrast with the British prime minister’s changing the wording in the Brexit referendum from ‘Should the UK remain a member of the EU?’ to the more neutral ‘Should the United Kingdom remain a member of the European Union or leave the European Union’ at the advice of the Electoral Commission is telling.

Moreover, the Hungarian government’s ‘information campaign’ showed what a real ‘project fear’ can look like. A year before the referendum was announced, the government carried out a ‘national consultation concerning immigration, economic immigration and terrorism’. And should anybody be in doubt as to the link between immigration and terrorism, the government helpfully placed billboards around the country in August asking voters if they were aware that ‘the Paris attacks were carried out by immigrants’ and that ‘since the start of the refugee crisis more than 300 people have been killed by terrorists’. This ‘did you know’ campaign was spoofed by the Two-Tailed Dog Party (which had also mocked 2014 Fidesz’ populist election campaign by promising eternal life and free beer). Its crowd-funded campaign asked if voters were aware that ‘there is a war in Syria’, ‘a tree could fall on your head’ and that since the refugee crisis broke out more than 300 people had travelled on the new 5-km narrow-gauge tourist railroad to the prime minister’s home town. The last ‘No’ campaign posters urged voters not to gamble with the country’s future and to vote ‘No’; the canine satirists responded with a call for voters to take no chances and cast a ‘Yes’ vote next to their ‘No’ vote (thus spoiling their ballot paper).

But referendums are seldom only about the issue that voters are called upon to settle in the voting booth. Most referendums on EU-related issues that governments call voluntarily also have something to do with party management, electoral strategy and efforts to influence voter preferences. Assuming that this referendum campaign is more or less in line with Fidesz’ overall political strategy, three other aims can be inferred. The final score in the domestic politics game seems to be Fidesz 2 – the opposition 1.

Fidesz’ first goal (both literally and metaphorically) was to maintain its popularity and avoid the kind of mid-term slump in the polls that all Hungarian governing parties have experienced since the end of communism, even Orbán’s own 2010-2014 government. The refugee crisis was too good an opportunity to miss. Both the governing party and their far-right rival Jobbik ‘own’ the immigration issue in the sense that they benefit from immigration (and terrorism) rising in salience, whereas the parties in the centre and left struggle with this kind of issue. If the polls are anything to go by, Fidesz succeeded. And it did so largely based on government expenditure, not the party’s own money. The opposition parties – both Jobbik and the centre left – point out that all this focus on the refugee crisis drowned out more pressing matters, such as government corruption.

Fidesz’ second goal was probably to prevent a loss of votes to their rival on the extreme right, by demonstrating the that the government is willing and able to take a strong stand on the refugee/terrorist threat and stand up to the supranational bullies in Brussels. This also seems to have worked, with support for the governing party running at 36% in the latest polls, ahead of 11% for Jobbik, 10% for the Socialists and 5% for the Democratic Coalition (formerly the Socialists’ right wing). Jobbik had no choice but to recommend a ‘No’, even though it criticized the government for wasting time and money. 2 – 0 to Fidesz.

Fidesz’ third aim was to confront the opposition parties in the centre and on the left with the unpalatable dilemma of either supporting the government’s call for a ‘No’ vote or advocating that the European Union should indeed be able to mandate the obligatory resettlement of non-Hungarian citizens into Hungary even without the approval of the National Assembly.  The tiny Liberal Party obligingly recommended a ‘Yes’ vote, but the rest of the ‘democratic opposition’ simply circumvented the problem by asking voters to stay at home. In the words of former prime minister Ferenc Gyurcsány’s Democratic Coalition: ‘stay at home, stay in Europe’. 56% did. Perhaps even more impressively, 223,193 voters (6.3% of those who turned up) followed the Two-Tailed Dog party’s recommendation to give a silly reply to a silly question and spoil their ballots. 2 – 1 at the final whistle.

The author on this blog writes in a personal capacity and does not represent the TransCrisis project team as a whole.

On the road to a traumatic Brexit?

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Martin Lodge and Nick Sitter

Events at the Conservative conference are supposed to have offered some insight into the slogan ‘Brexit means Brexit’. We now know that Art 50 will be triggered by the end of March 2017, that ‘national sovereignty’ is to be established over matters of immigration, and that there is supposed to be no role for the European Court of Justice in the workings of the United Kingdom. We also heard that a Great Repeal Act will conclude the negotiations of Brexit – all incorporated EU legislation will become domestic legislation, so that domestic policy-makers can decide afresh as to what is ‘optimal’ for the UK.

These announcements were met by jubilant newspaper headlines on the one hand, and by a renewed slump of the British Pound in the currency markets on the other. For some, it was an announcement that signalled a ‘hard Brexit’, in that membership of a common economic area (let alone the Single Market) was traded in for the promise of strong migration controls. For others, it was an opening gambit for a pragmatic negotiation between the UK and the EU.

Whatever the headline announcements, there is still no certainty as to what ‘Brexit means Brexit’ actually might mean. Even worse, the announcements coming out of Birmingham’s conference venue hide much more important questions about how to manage access to the European Single Market. This vacuousness about how to ensure that UK rules are equivalent to EU rules so as to ensure market access is manifest in the absence of any consideration of three essential aspects that will shape the future relationship between a Brexit-UK and the remaining EU. These three aspects are decision-making, monitoring and adjudication. While the UK government seems to suggest that it will get its own bespoke deal from the EU, these three key aspects will shape the future relationship regardless of eventual settlement. This holds regardless of whether the UK ends up with a Norwegian-type multilateral deal or Swiss-style bilateral arrangement (which May says she is not interested in), or secures the kind of Court- and migration-free market access that May dreams of (which most EU leaders say is not on offer), or the UK is out on its own.

Decision-making is all about the relationship of a third country to the evolving system of EU rules and policies. Theresa May suggested that it would be a domestic matter as to what the future laws and standards in the UK should be. Perhaps. This ignores the evolving nature of the EU rules. In one scenario, this might require the continuous automatic updating of domestic provisions in line with new EU legislation. In another, the UK could choose which rules it would adopt. In practice (as evidenced by Switzerland), most rules will discreetly be adopted for the simple reason that it is in the domestic interest do so. However, unlike in the past (and present), UK interests won’t be at the negotiation table (unless political preferences change). They will, at best, be represented in late-night and early breakfast-meeting lobbying attempts.

The current political announcements by the government suggest a preference for bilateral rather than multilateral arrangements. This places even more pressure on the UK to agree to and comply with EU laws. In the European Economic Area, a single refusal of Norway, Iceland or Liechtenstein to incorporate a new relevant EU directive into domestic law can put the entire arrangement at risk. In the Swiss case, if one bilateral agreement were found to be breached, then many others would cease to apply. It would be naive to think that the UK could avoid some form of similar issue linkage. This places even more pressure on non-EU member states to comply with the EU’s interpretation of laws, as the cost of disagreement is far higher than inside the EU. As one Eurosceptic Norwegian prime minister advised his successor – outsiders must be ‘more Catholic than the Pope’. A complete breakdown of the relationship would represent a legal no-man’s land and require extensive intergovernmental negotiations.

Surveillance is the second key aspect of any new arrangement. In the case of the three EEA- EFTA states, a special EFTA Surveillance Authority exists that plays the role of the European Commission. It is unlikely that such an arrangement would appeal to the current ruling political class in Westminster. Instead, surveillance would have to be part of the domestic administrative infrastructure. Such a role could be played by the Cabinet Office, or some renamed post-Brexit ministry. In Switzerland the foreign ministry plays this role, but neither the Swiss nor the EU finds this satisfactory. The EU has even rejected Swiss proposals for an independent national supervisory agency as insufficient. In any case, such arrangements will require extensive surveillance and will also place a considerable burden on domestic courts. Even in Norway most surveillance and compliance is carried out by domestic ministries, agencies and courts.

Finally, adjudication will represent a massive problem. The Conservative Party conference announced that there was supposed to be no future role for the European Court of Justice. This raises key problems as the EU will not tolerate other judicial actors than the ECJ (even promising that domestic courts will recognise ECJ rulings has proven to be insufficient to the EU). In the case of EU-Swiss relations, this has become a key tension point – and it fundamentally undermines the possibility for trade, for example, the basic principle of mutual recognition of goods is not feasible.

Of course, everything could just fall apart and no arrangement might survive the messy break-up of the UK-EU relationship. Under such a scenario, the cost of ‘national sovereignty’ for business and citizens would be that they have to solely carry the burden of the different standards. Even Norwegian industry, which has full legal access to the Single Market, complains about its extra transaction costs in trade with the EU. Furthermore, even in sectors where current EU laws might remain in force as new British laws, the challenges of surveillance and adjudication promise increased uncertainty – and cost – for business. The UK might have some support systems for those businesses willing to export to the UK.

Of course, highlighting such inconvenient details can be dismissed as insignificant froth when issues such as migration and ‘national sovereignty’ are at stake. However, the inconvenient truth is that pretending that national sovereignty in an age of interdependent markets exists, is highly misleading. One should not expect that party conferences provide for anything but high-level announcements to please the appetites of party members. However, the absence of any understanding of the key administrative and political challenges in maintaining relationships with the EU is highly damaging. It suggests either ignorance (as suggested by German Finance Minister, Wolfgang Schäuble), blind enthusiasm about leaving the EU behind, or it represents a misplaced sense in the UK’s significance in somehow forcing the EU to its knees to accommodate the UK. However steely the resolution by UK decision-makers, without any idea about how to manage questions of decision-making, monitoring and adjudication, any Brexit will prove highly traumatic.

Both authors write in a personal capacity.

Between Norway and a Hard Place or Singapore ain’t Clacton-on-Sea

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Martin Lodge and Nick Sitter

Regulation will be at the heart of the relationship between a post-Brexit UK (or should that be England and Wales?) and the European Union.  As politicians and civil servants scramble for answers as to what a future relationship may look like, rose-tainted images of a post-Brexit world are being paraded, whether this involves images of happy and sovereign Norwegian Vikings, cheese-melting Swiss or well-disciplined free-trading Singaporeans.

Assuming that Brexit does go ahead at some point in the future, then, as with any dissolving relationship, there are two questions that need to be addressed. One is what sort of life the departing partner seeks to have, and the other is how such lifestyle choices can be arranged in a way to maintain somewhat constructive post-divorce relationships. Some serious effort has been spent on analyzing the latter (although it was earlier dismissed by the Brexit coalition), less on the former.

The question about what regulatory standards the Brexit campaigners actually want points to two rival positions. One side, populated by those of the ‘official’ Brexit campaign, dreams of a world where red-tape doesn’t exit, where environmental and labour standards have been minimised as they constitute barriers to innovation, and where employment markets are ‘flexible’. This contrasts with the alternative Brexit vision of a world of regulatory standards that establish high market barriers to ‘protect’ domestic industries and ‘protect’ employment from any competition. This is the world personified by the typical broadcast from the town of Clacton-on-Sea, a heartland of anti-EU sentiment at the Essex coastline.

These two visions of post-Brexit regulatory standards cannot easily be reconciled; at best, they lead to a world in which inspection and enforcement of standards hardly exist (as they constitute ‘red tape’ and need to be financed somehow), where environmental standards are downgraded (as they ‘prevent innovation’), financial markets are left to their own devices, and where competition and state aid regimes are set aside to protect concentrated interests.

If that is what the Brexit side wants, then how could this possibly be molded into relationship with the EU-27? It all comes down to two broad sets of options. The first – the Norwegian model – involves British participation in the Single European Market through some form of ‘buy-in’. The second – the Singaporean model – is based on a set of options that centre on some kind of free trade relationship. Both come in a highly optimistic version, and a more reasonable version that is compatible with the political realities in the UK, the EU and even the EFTA states.

The ‘Norway option’ comes in three different varieties: 1) a bilateral deal with the EU where the UK chooses which parts of the EU system to take part in, 2) a series of bilateral treaties on the Swiss model, and 3) the actual Norway model: membership of the European Economic Area (EEA).

The first, wildly optimistic, variety envisages the UK cherry-picking which parts of the Single European Market (SEM) rules it wants to apply now and in the future, and which it will reject. This is about as likely as the England football captain being asked to pick the German line-up in the next penalty shootout (or an Icelandic starting eleven).

Hardly any EU state would accept such an arrangement at the best of times, let alone in a context when they fear their own Frexit, Nexit, Italexit and perhaps Plexit or Huxit. All EU governments and institutions have made one thing clear – any deal that involved access to the SEM must involve all four freedoms of movement – of goods, capital, services AND labour.

The Swiss option is also unlikely to be offered to the UK. The principal difference between this model and the full EEA model is that it is based on multiple treaties, does not update the set of regulations that apply to Switzerland automatically, and does not include the same strong role for the European Court of Justice. And it does not cover financial services. The European Commission has been dissatisfied with the workings of the Swiss arrangement, and has long tried to nudge the Swiss in the direction of the EEA. There is no reason it, or any EU member state, would want to offer the UK this (except, perhaps, as a way to keep the City out of the Single European Market?). At present, migration is at the heart of a conflict between the Swiss government (following a referendum result) and the European Union. In short, Switzerland pays for access to the Single European Market and the whole set of arrangements is characterized by a degree of contractual complexity that will neither reduce cost nor appear politically attractive to both sides of the Brexit divorce.

The Norway option remains the most likely option, even if many voices in Brussels (and even in Oslo) concede that this deal has, so far at least, proved far too good for Norway. Like the Swiss and bilateral options, this would involve the UK accepting most of the SEM rules and regulations, including the free movement of people, in return for full market access to the market. The main benefit is formal sovereignty, and the main drawback is hardly any real sovereignty as it involves limited or no influence over rules and regulations that apply to the country. The pro-Brexit camp have made much of Iceland’s many derogations (349 exemptions) from Single Market rules – but on closer reading these turn out not to be so many, and mainly to be linked to sparsely populated rural areas, special energy rules and rules than cannot possible be implemented, such as airport security for primitive rural landing strips.

Under the EEA the UK would not need to adopt the single currency, would not need to join Schengen and would not be committed to ever closer union. It would still have to commit considerable budgetary resources to support the EEA arrangement. Plus ça change, plus c’est la même chose. But if Norway’s experience is anything to go by – and of course it is – it would make police cooperation against terrorism and foreign policy cooperation against external threats more difficult. The good news is that the Norwegian model also allows for further buy-ins, in areas like higher education. However, it is unlikely that a Brexit government would have the same kind of interest in supporting higher education (especially non-STEM disciplines) as Norway.

So none of the ‘Norway’ options are likely to affect immigration, and all involve maintaining access to the Single Market for UK goods and services, including financial services under the actual Norway model. And new EU rules must be taken on board. This is Norway’s very own version of the democratic deficit: all the regulation, without representation.  And it comes at a financial net cost more or less equal to that of full membership (83 per cent in the case of Norway). Indeed, it is hard to imagine the EU offering an access price much below an estimated €4bn per annum; again, not an option that is particularly palatable to the world of Brexit government.

All this assumes that the new party leaders can manage a Scandinavian-style burst of consensus politics and put the national interest ahead of short-term party and personal goals. If not, one of the options where the UK really is not bound by the rules of the Single European Market, but faces a range of barriers to the trade of goods and services, might be the default option.

Then there is the dream of a free-trading Singapore, apparently free to choose its own standards and flourishingly autonomously (whilst forgetting the near-annual months-long toxic cloud cover generated by Indonesian wildfires). Even when setting aside the somewhat different politics of Singapore to the UK, this world is again based on rather optimistic assumptions, it assumes a world in which optimal trade deals will be easily and quickly negotiated, and where products appear simple. Even financial markets though are complex, are regulated by multi-level systems of regulation and supported by governments. Furthermore, a world in which a national government simply stated that it would apply unilateral free trade is unlikely to survive the next general election.

Such a ‘Singapore world’ also flies in the face of most of the Brexit vote that called for more interventionism and restriction rather than less. The world of Clacton-on-Sea is one that is far away from Singapore. Even in a scenario where only WTO arrangements would apply, trade and non-trade barriers would apply, certification requirements would have to be fulfilled, and deals over trade needed to be fought. Even if the Brexit government had the capacity to engage in such processes – which is debatable in an age of institutional memory loss and massive civil service redundancies – it is unlikely that a little-UK could strike the same kind of deals as a much larger European Union.

A world in which the UK struck some form of ‘association agreement’ might be called an ‘Albania light’ arrangement. This would grant some access to the Single European Market as part of a trade agreement. But such a deal would surely be used by the EU-27 to discourage any other member state from going down the route of the UK, and the more comprehensive such an arrangement would be, the more like a ‘Norway’ scenario this agreement would become. The EU track record in trade negotiations is one of flexibility when it comes to large markets (such as the US), and to take a take-it-or-leave it approach to smaller economies.

Whatever the chosen divorce relationship, it is unlikely to be the end of the story. The incoherence of the Brexit coalition – one that is shared among the so-called insurgent political parties across the EU – between those dreaming of a quasi-anarchic world of no red tape and maximum flexibility and those dreaming of national protectionism through regulation is one that will generate continuous dissatisfaction whatever the type of deal that might be struck. While political options need to not necessarily lead to Clacton-on-Sea, they will certainly have to pass through it.

Such a political landscape also suggests that an EU response to Brexit of ‘more EU’ is unlikely to go down well in the national capitals of the remaining member states. In other words, as in the real world, amicable divorces are rare in the world of human relationships and in the world of regulatory governance. The future is more likely to be one of continuous political opposition to any form of multi-level governance at high economic and social cost which will frequently expose the limits of European governance. European crisis management is here to stay.

Both authors write in a personal capacity. Lodge used to have family ties to Clacton-on-Sea.