Receiving Ukrainian Refugees in the EU: A Case of Solidarity?

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Eleni Karageorgiou, Gothenburg University / Lund University & Gregor Noll, Gothenburg University

3 June 2022

Introduction

The European Union is consistently describing cooperation to receive and protect refugees from the armed conflict in the Ukraine in terms of solidarity. So are many commentators, including those who qualify it as ‘unequal solidarity’: that is, a solidarity that evolves double standards in the protection of Ukrainian refugees and those from other countries (see here and here), criticized heavily, among others, by the UN Special rapporteur on contemporary forms of racism and the African Union. This type of solidarity appears not apply equally to all participating countries, but rather entails differentiated legal responsibility (see e.g. the notion of flexible solidarity that allows Member States to choose a la carte their contributions).

By sticking to a solidarity leitmotif, critics of double standards in EU migration and asylum policy arguably risk undermining the strength of their own critiques. As we will show, the conceptual history of solidarity is intellectually incapacitating for any argument in support of a ‘human-centric’ form of resource sharing on egalitarian terms. In particular, we argue that it is historically wrongheaded to analyze the reception and protection of Ukrainians through the lens of solidarity alone. Rather, we suggest, the temporary protection of Ukrainians is better understood as the outflow of an overarching alliance logic, embracing the totality of EU policies in this area, with the Syrian outflows as much as that of the Ukrainians. While warming us away from the use of solidarity terminology appears counterintuitive at first sight, it becomes less so once we explore the ties between French solidarism and the solidarity concept as related to states and international organizations in the current debate.

Before arguing for our claim, we should say a few more words on its core concepts of solidarity and alliance. In an article recently published in Jus Cogens, we test whether Article 80 TFEU resonates with the conceptual history of solidarity, as it expresses itself in the two dominant historical traditions: Roman law obligatio in solidum and the French solidarism. We explore discourses of burden-sharing and solidarity in EU law from the 1990s up to Article 80 TFEU as introduced by the Lisbon Treaty in 2009, the point being to identify emergent path dependencies. We find that Article 80 TFEU, with its exclusive focus on relations between Member States, does not resonate with the Roman legal concept of obligatio in solidum at all. While the Roman law concept features a clear repartition of obligations and agency, its relational focus on creditor-surety relations is beyond analogy to Article 80 TFEU. A comparative reading with other cooperation and solidarity clauses in EU primary law confirms that Article 80 TFEU is better understood as an alliance clause. The alliance it engenders focuses on the immobilization of irregular immigration. Immobilization practices stretch back to the very beginning of EU cooperation in this field and so does the discourse on ‘combating illegal migration’. Perhaps the best example of strong path dependency in immobilization is the Dublin system, now entering its third decade with its core dysfunctionalities intact.

So where is the link to French solidarism in Article 80 TFEU? The threat that French solidarist thinkers sought to avert was the self-organization of revolutionary French workers, while the threat EU solidarity seeks to avert is the self-organization of migrants. As illustrated by the differential treatment of non-Ukrainian protection seekers at the Polish border, immobilization aims at a particular group of migrants, namely those coming from the global south and epitomizing global inequalities of opportunity. Both forms of self-organization—that of nineteenth-century French workers eyeing socialism and that of contemporary migrants eyeing Europe—are read as systemic challenges to the political order of the day. Ukrainians are not, hence their differential treatment.

In the following section, we draw out how an alliance might find it opportune to focus on the mobilization of humans for the purposes of self-defence in one set of situations, while the same alliance might then focus on the immobilization of humans for the purpose of self-defence in another situation. As we will see, the ‘self’ of self-defence refers to a group of collaborating states in both instances. We seek to demonstrate that the reception of Ukrainians rests on mobilization, while the non-reception of other refugee nationalities rests on the immobilization effectuated by border control. The last section offers conclusions.

‘Burden-sharing’ and ‘Solidarity’

During the 1990s, ‘burden-sharing’ was at the core of the discussions relating to the creation of a common European asylum system, involving both EU Member States and non-members. The term ‘burden-sharing’ was an import from the realm of the military; the ‘burden’ was that of collective self-defence, to be shared by means of member contributions to alliance forces within NATO. The debate on European asylum burden-sharing not only pivoted on a term from the playbook of the military, it also took place in a militarized context. By way of example, the movements of asylum seekers fleeing the Bosnian war were discussed alongside NATO involvement and UNPROFOR’s mandate to use force. It was, in fact, the failure of the 1990s normative infrastructure to respond to large refugee movements from Bosnia, and later Kosovo, that triggered a heated debate on European burden-sharing.

Yet these discussions failed to produce more than vague commitments, however pressing the case of refugee movements from the former Yugoslavia was deemed. Rather, states converged on the idea to contain flight from the conflict to the region in distress. As stated by van Selm in this forum, the focus has been on return. Burden sharing was a ‘dismal failure during the Yugoslav crisis’ (see here and here), allowing the most exposed states, such as Germany, to seek justification for their ‘toleration’ practices with regard to refugees from former Yugoslava, implying a tangible reduction in rights.

To wit, the war in Bosnia led to massive refugee outflows, yet military intervention came late in the history of the conflict and remained relatively guarded. By contrast, the 1998-9 Kosovo crisis set off a decisive military intervention by NATO against the Federal Republic of Yugoslavia (FRY), ultimately leading to the withdrawal of FRY troops from the province of Kosovo. To encourage neighbouring North Macedonia to keep its borders open to refugees from Kosovo, a group of 29 states, of which many were EU Members, agreed on the Humanitarian Evacuation Programme (HEP, numbers are here and a brief exposé is here). The point of the HEP, and the add-on Humanitarian Transfer Programme to Albania (HTP), was to airlift arriving Kosovars from North Macedonian territory onwards to cooperating states, where protection solutions would be found. For NATO and its partners, mobilizing Kosovar civilians with the HEP was crucial for achieving the political goals of its military intervention. Sharing the burden of refugee protection was an expression of alliance logic and solved strategic problems, mainly in the NATO campaign, and an analogous conclusion applies to the in-casu alliance between NATO and its partner states. While these problems may well have been of a humanitarian nature, this does not override their strategic importance to the battlespace situation that intervening powers saw themselves confronted with.

The story of the HEP and HTP reverberates strongly with the mobilization of Ukrainian civilians across borders opened for them. Today, support to Ukraine is a matter of providing materiél and intelligence as much as security for part of its citizenry. Each component contributes to the achievement of the political goals of states, EU Member States included, allying to assist Ukraine. As was the case with the HEP, there is a strategic dimension to helping friendly civilians to flee, and the burden of this strategy is shifted out across the alliance in question. Strikingly, the mobilization of Kosovars as much as of Ukrainians was not planned over a long horizon, but rather shadowed an armed conflict as the main driver of events.

However, by the end of the 1990s, an instrument that would do more than respond to a particular set of events such as the Bosnia and Kosovo crises was considered crucial. Essentially, the emergence of a separate discourse on solidarity was about offsetting the burden-concentrating effects of the 1990 Dublin Convention. This was reflected in the major institutional achievement towards the communitarization of asylum and migration policy, namely the adoption of the Amsterdam Treaty which introduced solidarity as a guiding norm of the EU asylum policy, by prescribing ‘a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons’. In the same vein, the Tampere conclusions emphasized solidarity between the Member States, though primarily in relation to temporary protection. At that point, replacing the Dublin Convention with a mechanism for distributing asylum applicants between the Member States in proportion to each Member State’s capacity to receive them was not considered as a ‘pragmatic’ solution, particularly since debates on burden-sharing by a pre-planned redistribution of protection seekers had not produced any concrete results. In the discussions preceding the adoption of the Temporary Protection Directive (hereafter TPD), it was emphasized that concrete solidarity measures as a response to a mass influx should materialize mainly through financial assistance and, as a subsidiary means, through the distribution between the Member States of people granted temporary protection.

To conclude, as the 1990s did not produce meaningful agreement on refugee burden-sharing, Member States invested into an immobilization logic, with the Schengen II and Dublin Conventions as its cornerstones. Immobilization aggravated and created its own reception imbalances, though, and a solidarity logic emerged to address those. However, the HEP represents an exception to the pervasive rule of immobilization: with many Member States engaged in or supporting NATO’s military intervention in the FRY, Kosovar refugees turned from a liability into an asset, and the Western alliance supporting action against the FRY made their mobilization into a political goal upon its own. In the HEP, we see how an overarching alliance logic let states toggle between stopping refugees in their tracks to actively inviting them in, foreboding the mobilization of Ukrainians today.

The EU Response to the Ukrainian Exodus

During the two decades following the actual adoption of the TPD in 2001, the EU never took the requisite decision to activate its distributional mechanism, relegating it to the normative deadstock of the acquis. It was generally believed that certain of its features undermined its potential utility, namely the procedural requirements under which it could be invoked, the lack of sufficiently firm and mandatory solidarity commitments, and the scope and content of protection. In 2015, an EU relocation scheme to transfer primarily Syrian refugees from Greece and Italy to other Member States was implemented as a mandatory solidarity mechanism binding under EU law. The Court of Justice of the EU has suggested that the situation at the time, characterized by mass daily crossings into the EU, demanded a rapid and far-reaching response, and thus the mandatory quota mechanism of the Relocation decisions was deemed more appropriate than the solidarity mechanism of the TPD based on voluntary commitments (paras 256-257 and AG’s opinion paras 257-260).

Yet the way in which the EU institutions have responded to the Ukrainian exodus, through the unanimous activation of the TPD, appears to challenge this exegesis as to why the directive has not been used. Telling in this regard is the reasoning of the Commission motivating the suitability of the temporary protection regime. The Commission suggested that applying the TPD would benefit displaced persons themselves, enabling their immediate protection in the form of harmonized standards across the EU; it would benefit Member States confronted with the mass influx, by applying simplified procedures and thus avoid the overwhelming of asylum and reception systems; and, finally, it would benefit the Union as a whole due to a fairer distribution of reception responsibilities. According to the Commission, the expectation that Ukrainian nationals would spread across the EU, joining family and friends already located in different EU countries and the possibility of solidarity transfers would guarantee this fairer result.

It is striking how the long-held assumption underpinning the Dublin system as well as the 2015 quota mechanism was completely sidelined in the case of the Ukrainians. Under Dublin and the 2015 relocation scheme, refugee agency is assumed to be bad, as it results in an unequal distribution of responsibility. This assumption has been reproduced by the CJEU which, in relation to the 2015 emergency relocation mechanism, held that ‘If relocation were to be strictly conditional upon the existence of cultural or linguistic ties between each applicant for international protection and the Member State of relocation, the distribution of those applicants between all the Member States in accordance with the principle of solidarity laid down by Article 80 TFEU and, consequently, the adoption of a binding relocation mechanism would be impossible.’ (para 304). As stated by Carrera, Ineli Ciger, Vosyliute and Brumat in the ASILE kickoff contribution, the triggering of the TPD shows that the prevailing EU asylum policy principle where asylum seekers and refugees are excluded from the right to freely move inside the Schengen Area should be reconsidered in the name of equal treatment (p 28). With the Ukrainian refugees being handled in the temporary protection framework and being entitled to enter the EU without a visa, refugee agency exceptionally turns into a force for good.

Temporary protection in the EU for those fleeing the war aside, central to the EU’s response has been ‘the solidarity between Member States’. The EU has been supporting Member States to meet refugee demands on their territory primarily through financial assistance (see e.g. the legislative proposal on the EU’s Cohesion’s Action for Refugees in Europe), operational support for border management (e.g. Frontex staff by EU agencies deployed at focal border points such as Romania and Moldova-Ukraine) and through the so-called ‘Solidarity platform’ (Rec. 20 Council Decision  2022/382), a mechanism set up by the European Commission and led by DG HOME to coordinate cooperation between Member States, Schengen Associated States, EU Agencies as well as IOM, UNHCR and other partners. In particular, the Platform collects the needs identified in the Member States and organizes the operational response which takes the form of a ‘solidarity transfer’ of protection seekers from a Member State under most pressure to another with a suitable reception capacity. Such relocation is contingent on a requirement of double voluntariness. According to the Commission Communication, in the Platform’s first week of operation, six Member States and Norway pledged to receive people who had fled Ukraine from Moldova. The Platform’s work draws on guidance provided by Member States within the Integrated Political Crisis Response mechanism (IPCR) and benefits from the operationalisation of the Crisis Management Blueprint Network, a framework recommended by the Commission in the context of the 2020 EU Pact on Migration and Asylum to monitor Member States’ capacities and organize joint response to situations of crisis. Solidarity through the Platform extends beyond the EU, helping to establish pathways towards non-EU countries that already host Ukrainian diaspora, such as Canada and the United Kingdom.

The formalization of temporary protection followed by voluntary solidarity commitments in the Ukrainian case has been praised and portrayed as a step forward, associated with flexibility and justified by invocations of emergency. This, however, deserves some scrutiny. There is little doubt that the military invasion of Ukraine by the Russian Federation triggered a displacement crisis of great magnitude. At the same time, it has shown that a large-scale movement into several wealthy European states need not create a reception emergency, as long as there is political agreement that a maximum of openness serves the political and strategic interests of those states. It does not hurt either that a loose system of first reception is in place and that responsibilities are shared, or self-distributing, among states.

To sum up, the EU’s response since the Russian invasion of Ukraine can be characterized as the epitome of a ‘welcoming’ policy for Ukrainians fleeing war and of a robust coordinated action in terms of border management and cooperation for matching needs to capacity with the whole EU apparatus in full motion. The language of solidarity is repeatedly referred to in varying formulations, ‘compassion and solidarity’, ‘unity in solidarity’; ‘solidarity in action’, ‘finance solidarity’, ‘real solidarity’. However, the solidarity language stands in the way of seeing the alliance logic at work here. Unlike the lexicon definition of solidarity– the alliance logic does not presuppose unity or agreement of action. On the contrary, it is based on the ‘appearance’ of unity, as is the case in the EU where sovereign divisions and the disagreement on how solidarity should be given effect -exposed by the 2015/2016 ‘refugee crisis’, leading to a deadlock during the negotiations for reforming the Dublin III Regulation, and lately reflected in the 2020 EU Pact proposals- continue to haunt the asylum debate, attesting to the ongoing East–West divide. Such circumstantial unity stemming from convergence of interest in protecting borders and containing migrants is, we argue, the driving force behind the EU’s response to the Ukrainian exodus, trumping any kind of equal legal responsibility and rule of law considerations discussed as the main components of solidarity in the EU legal system.

Conclusion: The Alliance Logic at Work

Here is where our argument that Article 80 TFEU should be read as an alliance clause devised to defend borders and manage migration becomes relevant. Elements of the deterrence paradigm practiced by the EU and its Member States both in their casual migration governance over the last years and as a response to earlier large scale migrant movements, including in 2015, in 2020 and in 2021, are clearly discernible in the current policies addressing the Ukrainian situation as discussed in detail here and here. The prevailing practice of solidarity being used to counter a threat of irregular immigration through immobilization of particular groups of migrants can swiftly morph into migrant mobilization, if a larger geopolitical threat so requires.

Equally, the ‘open arms’ response corroborates the claim that Article 80 TFEU juridifies a communitarian–instrumentalist concept of alliance, reflecting a form of conducting regional and global politics. As argued by van Selm, the EU had no alternative but protect Ukrainians, as a way to ‘project power’ against Russia’s aggression and demonstrate unity in the face of an ‘existential crisis’ for it and its Member States, primarily as NATO members.

We have to realize that the language of solidarity as used at the EU level is not about benign caring for others, as reflected for instance in the actions of individuals and grassroot movements mobilising against state containment policies and laws. Whether we like it or not, French solidarism has successfully infused the use of solidarity terminology by states and international organizations with a political immobilization agenda that is still operative today. When the ASILE kickoff contribution labels the EU reception of Ukrainian refugees as ‘unequal solidarity’, this occludes that French solidarism was all about the preservation of social inequality through the promise of nationalism. This lives on in the common project of protecting the borders of states making up the EU, preserving inequality through the promise of humanitarianism. So any solidarity by states and international organizations is unequal, not only that expressing itself in the preferred treatment of Ukrainian refugees. On a historically informed reading, the concept of solidarity in EU asylum policy has to be linked not to refugee reception, but rather to cooperative ventures of averting transformational threats to the status quo.