Temporary Protection and European Racism

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Prof. Achilles Skordas, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg
3 June 2022

1. The R-word as polemical concept

‘Racism’ is a sociological and psychological, legal and polemical concept. Concerns about potentially racist and discriminatory practices against certain groups in the course of the implementation of the EU temporary protection system were raised by non-governmental organizations, international agencies and academics. Here is a relevant statement by the European Network against Racism (ENAR):  ‘The decision to invoke the Temporary Protection Directive is historical and yet disappointing in that it still applies a racist double standard which prevents non-Ukrainians from having the same legal protection.’ This is an issue of broader significance deserving a thorough discussion and I will try to set the record straight.

The Temporary Protection Directive (TDP), adopted in 2001 in the aftermath of the wars in the former Yugoslavia, had remained inactive for over twenty years. Under the impression of its obsolescence, the Commission proposed in 2020 its replacement with a Regulation ‘addressing situations of crisis and force majeure in the field of migration and asylum’ (here and here). However, the temporary protection came suddenly back from the cold, when the Council adopted the Implementing Decision 2022 of 4 March 2022 (CID) to manage the mass influx of displaced persons from Ukraine. Before entering the discussion on the TPD and the CID, we should first clarify the meaning(s) of racism in law and politics.

In terms of law, racism can be a crime per se, or can depict an individual’s state of mind that may lead to the commitment of ‘racially motivated crimes’. States implement strategies against racism in their domestic legislation, including banning or restricting the activities of neo-Nazi parties and other racist groups, such as  supremacists. In international law, state policies and practices during armed conflict, are ‘racially discriminatory’, if they violate the rules or principles of the International Convention on the Elimination of Racial Discrimination (ICERD) (three cases are currently pending before the International Court of Justice, see here, here, and here).  The Convention contains an authoritative definition of racial discrimination on a universal level, considering that it has been ratified by 182 countries. States may expand, but not restrict, the meaning of racial discrimination in their domestic law, but this does not affect the scope of the ICERD.

In the political discourse, ‘racism’ can be used as a polemical concept, if it facilitates the semantic domination (Deutungshoheit) of a political group or an intellectual movement over their opponents, or facilitates the action of international organizations. The accusation of racism, even if it is not true, compels those criticized to defend themselves and, at least for a moment, retreat from the advancement of their own objectives. The use of polemical exchanges with accusations of ‘racism’ are typical for politically charged environments and leads to further polarization through the ‘(im)moralization’ of political communication. There is also a negative impact on the social system of law in the form of instrumentalization of established legal concepts.

Instrumentalization creates a ‘cloud of suspicion’ over legitimate policies and legislation. ‘Polemical discourse’ is an argumentative pattern that may create stereotypes and biases against the opposite numbers. Polemical discourses construct strawmen and attack them with a variety of techniques, including by the non-differentiated use of the R-word, or by selective application of facts, context and relevant normative regimes, by implicit and generalized attribution of responsibility, or by confounding the distinction between norms and facts.

The signals emitted by UN institutions follow a line of critique comparable to that of civil society actors. Following the adoption of the CID on 4 March 2022, the UN High Commissioner for Refugees, Filippo Grandi, made a statement less than three weeks later, on the International Day for the Elimination of Racial Discrimination (21 March), where he framed the issue of racism and discrimination in connection with the reception of displaced persons in the EU. After mentioning his commitment ‘to ensure that UNHCR, the UN Refugee Agency, becomes an anti-racist organization’, he continued as follows:

And while I am humbled by the outpouring of support we witnessed by host countries and communities, we also bore witness to the ugly reality that some Black and Brown people fleeing Ukraine – and other wars and conflicts around the world – have not received the same treatment as Ukrainian refugees. They reported disturbing incidents of discrimination, violence, and racism. These acts of discrimination are unacceptable, and we are using our many channels and resources to make sure that all people are protected equally.

Firstly, the High Commissioner seems to confound the boundaries between an NGO or a protest movement and an agency exercising international public authority, bound by the definition of racial discrimination in the International Convention on the Elimination of Racial Discrimination (ICERD),  as authoritatively interpreted by the International Court of Justice (ICJ) (see infra II). Secondly, there is no doubt that as far as racist incidents happen, they should be condemned (UNGA Res. ES-11/2) and punished and administrative failures of border agencies should be rectified as soon as possible. The question is, whether these are isolated incidents or systemic failures.  The context, wording and weight of the statement, including that the UNHCR use their ‘many channels and resources’ to safeguard equality, indicate their belief in the existence of systemic issues.

A statement by the UN Working Group (WG) of Experts on People of African Descent referring to reports of discrimination against people of African descent at the EU-Ukrainian border was issued on 3 March, before the implementation of the TPD/CID system and does also not clarify whether the specific problems affect only persons of African descent, or generally non-citizens coming from Ukraine. Patterns of racial discrimination appear as a differential treatment of persons with the protected characteristics. The statement of the WG would be more helpful, if it would identify institutional patterns of arbitrary distinctions against people of African descent separate from the treatment of third-country nationals fleeing Ukraine. In the latter case, such incidents would constitute violations of Art. 3 ECHR.

Grandi also complains that that Black and Brown people fleeing ‘other wars and conflicts around the world…have not received the same treatment as Ukrainian refugees’. It is not clear whether he criticizes the EU for the non-activation of the TPD in other instances of mass inflows since the 2010s, or whether it is a general observation done, nevertheless, in the context of a critique of the reception of displaced persons from Ukraine. Anyway, the legality of the differentiated approach of the EU should also be discussed from the standpoint of potential discrimination or racial discrimination. Similar concerns and critique of EU policies have been expressed in the academic writing, as well (here and here).

The broader issue is whether it would have been more appropriate for the UN institutions to positively compare the openness of the EU response in embracing the victims of the war with the response in other regions of the world. The deafening silence of the UN High Commissioner for Human Rights Michelle Bachelet during her recent visit in China is an evidence of the double standards of the UN human rights system.

One may wonder whether isolated incidents allegedly happening at the EU-Ukrainian border or some short-term administrative difficulties are so grave violations of international law to stand at the center of the UNHRC message on the International Day for the Elimination of Racial Discrimination and mobilize a second UN institution (the WG). The statements of the UN officials create a ‘cloud of suspicion’ over EU practices, by making allegations that are general enough not be found untruthful, but still sufficiently ‘colored’ to strengthen the impression of ‘European racism’ to their publics.

I will further discuss two issues, (i) the non-activation of the TPD in the previous situations of irregular mass migration in the 2010s compared to its implementation in 2022 and (ii) the principle of exemption of non-Ukrainians from the 2022 system of protection. Both might indicate bias against people of color amounting to racism and/or discrimination.

2. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

For a policy to be racist under international law, it should be incompatible with the ICERD. According to Art. 1, para.1 ICERD, ‘the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin’. Not only there is no mentioning either of citizenship or of religion in this provision but in addition, Art. 1(2) and (3) explicitly state that the Convention is not applicable on distinctions or exclusions based on citizenship. Despite this clear wording, Recommendation XXX of the Committee on the Elimination of Racial Discrimination (CERD) of 2005 extended the scope of the Convention on distinctions based on citizenship.

In its recent judgment in the case Qatar v. United Arab Emirates (2021) , the International Court of Justice (ICJ) put an end to this practice, by ruling that measures or exclusions based on ‘current citizenship’ do not constitute direct or indirect racial discrimination. After the judgment, the prohibition of racial discrimination has ceased to have relevance for migration policies based on the above criterion. The judgment was carried by both ad hoc judges and by a clear majority (11-6), including the four sitting judges from the permanent members of the UN Security Council (there is no judge from the UK in the Court’s current composition), and four judges deciding from a Southern perspective. In the rare case of collision between ICJ judgments and CERD recommendations, the former prevails because of their binding nature and the authority of the Court over the interpretation of international law.

Migration critique and restrictionist policies cannot be characterized as ‘racist’ or ‘discriminatory’ under the ICERD, as long as they are framed on the basis of ‘current citizenship’. By introducing the fundamental distinction ‘Ukrainian citizens/non-Ukrainian third country nationals’, the EU system of temporary protection does not violate the ICERD.

However, this is not the end of the matter. In addition, I argue that not only there is no racial discrimination, but that there is no other detectable discrimination in the TPD/CID system. In the above judgment, the ICJ ruled that its interpretation affects only the ICERD and not non-discrimination clauses in other instruments (para. 104 of the judgment). Therefore, every such clause should be decided on its own merits. I cannot make a detailed argument for each one of them, but will limit my approach to the question, whether the distinctions made by the TDP/CID system with regard to the admission and stay of displaced persons are reasonable and meaningful and thus, in principle non-discriminatory.

There are three separate issues to discuss. First, whether the non-activation of temporary protection in comparable situations of mass influx constitutes evidence of discrimination. The answer depends on whether there is a fundamental structural difference between mass influx of displaced persons under the TPD and irregular migration movements that would justify a differentiated treatment (infra III). Second, whether the geopolitical interest of the EU is a factor that can and should be considered by the activation of temporary protection (infra IV). Third, whether the Council Implementing Decision 2022, by introducing different kinds of treatment among groups of persons fleeing Ukraine, discriminates against some of them. No discrimination exists, if the distinctions are justified and appropriate to the circumstances (infra V).

3. Mass influx v. irregular mass migration

(i) The concept of ‘mass influx of displaced persons’ in the TPD is a legal term and a condition for temporary protection. In the case of mass influx of displaced persons, armed conflict or endemic violence must be the proximate causes of the movements. Mass influx should be contrasted to irregular mass migration, where the movement is caused by a synergy of multiple factors. In such case, the significance of armed conflict as a proximate cause has already retreated in the background. The proximity and clarity of the cause is important, because it demonstrates the necessity of temporary protection, whilst its absence indicates the appropriateness of migration management through different tools.

Thus, it is doubtful whether the great majority of persons who arrived in the Union in 2015 were ‘displaced’ in the sense of the TPD. The ‘displacement’ indicates movement from the country or area of armed conflict to the country of destination, which does not need to be uninterrupted, but has to be involuntary or compulsory in the narrow sense of ‘having no alternative but’. According to Art. 2c of the TPD, the term displaced persons means ‘third-country nationals who have had to leave their country or region of origin’, ‘haben verlassen müssen’, ‘ont dû quitter’. ‘Have to’, ‘müssen’, or ‘dû’ should be interpreted according to their ‘ordinary meaning’ (see Art. 31 Vienna Convention on the Law of Treaties). Evacuation efforts of displaced persons does not deny, but strengthens the case for the character of the exodus as compulsory, as the situation of Yazidis has shown. On the contrary, the persons that moved to the Union in 2015 did not ‘have to leave their region of origin’, because they were protected there already.

The movements of persons from a third country to another third country for personal or economic reasons does not constitute ‘displacement’. Persons having fled armed conflict or systematic or generalized rights violations in their country of origin and enjoy temporary or humanitarian status in a third country, are not ‘displaced persons’ in the sense of the TPD, if they choose to move to the Union en masse, unless these conditions were repeated in the third country where they initially fled. Then, they are ‘displaced persons’ from their ‘region’ (Art. 2c TPD).

The irregular mass movements of 2015 were partly motivated by wrong signals sent by the Greek and the German governments that were understood as encouraging the exodus of persons from third countries, where they stayed in relative safety outside of the areas and countries of armed conflict. The voluntary nature of the movement is also clear in the case of the failed attempts of forcible entry of migrants from Turkey to Greece in 2020, who were encouraged and actively supported by the Turkish authorities to reach the borders and enter the territorial space of the EU, even though they were settled in Turkey for a number of years (here and here). The case of Ukraine is very different, because the extent, breadth, and spontaneity of movement demonstrate, beyond any doubt, that the armed conflict was the proximate cause of the displacement.

(iii) The TPD is unsuitable as a tool for the management of irregular migration movements. It is difficult to see, how the Council could exercise its authority to determine ‘the specific groups of persons to whom the temporary protection applies’ (Art. 5, para. 3a) in cases of irregular migration. The difficulty has two dimensions: first, how to determine the protected groups and second how to determine the membership of individuals to them. These are questions that can be answered only in a structured administrative or judicial procedure on refugee or subsidiary protection of individual applicants. The advantage of the TPD is to provide immediate and non-bureaucratic protection to displaced groups and populations. In irregular mass movements, the raison-d’être for the activation of the Directive disappears.

The argument that the ‘apparently discriminatory approach is amplified through some politicians emphasizing that Ukrainians must be helped because they are European Christians’, compared to the treatment of irregular migrants  from the Middle East and Central Asia, is typical for this kind of argumentation. Statements of ‘some politicians’ is becoming evidence of discrimination-in-law and Christians, even more European ones, are finger-pointed as the immanently privileged group. Instead, the UN General Assembly has been regularly using the term ‘Christianophobia’ (f.ex., UNGA Res. /65/211 of 2011,  UNGA 76/254,  of 2022),  a term that I have personally never encountered in European refugee law discourses, and the relatively recent report and debates in the UK House of Commons have demonstrated the suffering and worldwide persecution of Christians (here, here and here.).

(iv) The temporary protection should not be activated in the case of smuggling of migrants in the Union, because these activities create irregular migration movements artificially. To put it differently: had the criminal business networks not existed, the system of irregular migration would have not existed either, because people on the move over big distances need a services infrastructure. The demand for a movement does not translate automatically into a right to a movement. Moreover, the demand as such is not protected by refugee law and the travel through various third countries towards Europe is also not protected  by EU law or human rights law.

The system of temporary protection does not fulfill the function of facilitating activities that violate the Palermo Protocols  and UN Security Council resolution 2240/2015, or are inconsistent with  the Global Compact on Migration (UNGA Res. 73/195, objective 9). According to the Europol, 90% of irregular migrants crossing into the EU use the so-called ‘facilitation services’. In the case of Ukraine, the affected population does not use such services, because they literally flee the war and cross the border to the Union, just as the Bosnians and Kosovars had done in the 1990s. The differences between mass influx and irregular migration could not be clearer.

4. Geopolitics and temporary protection

Geopolitical considerations play an important role in the decision to activate or not to activate the system of temporary protection. This conclusion can be inferred from the wide political discretion conferred to the Council, in combination with the Union’s foreign policy objectives ‘to safeguard its values, fundamental interests, security, independence and integrity’ (Art. 21, para. 2b in combination with Art. 2 TEU). The humanitarian dimension of the Union’s action is inherent in the overall system of temporary protection and it is not necessary to expand on it. The geopolitical interests require that no temporary protection should be granted, if the Union’s fundamental interests and its security could be negatively affected by the activation of the Directive. Here I should like to mention that the 2022 EU Strategic Compass for Security and Defense considers irregular migration as a security concern, for well-known reasons.

On the contrary, the Union’s interests require the temporary protection of Ukrainians. The geopolitical reasoning is clearly expressed in the preamble of the Council Implementing Decision 2022/382 and is linked to the Russian aggression and to the direct threat to the European and global security and stability (paras. 1-4). Other than the international legal obligations to suppress the smuggling and trafficking of migrants, including in particular across the Mediterranean, the UN Member States and in particular the neighboring countries to Ukraine were called upon by the UN General Assembly to provide any necessary assistance to displaced persons from Ukraine (UNGA Res. ES-11/2).

5. Protection of displaced persons from Ukraine

Let me come to the last issue, namely whether the distinctions made by the Council Implementing Decision 2022/382 with regard to persons enjoying temporary protection are arbitrary and thus discriminatory, or whether they merely treat different situations differently. The CID provides for the obligatory protection of four categories of persons and the members of their families: Ukrainian citizens, stateless persons, and third country nationals (but obviously not EU citizens) who enjoyed international protection or equivalent protection under Ukrainian law before 24.02.2022, and third country nationals and stateless persons who can prove that they resided in Ukraine ‘on the basis of a valid permanent residence permit issued in accordance with Ukrainian law and who are unable to return in safe and durable conditions to their country of region or origin’ (‘shall clauses’, Art. 2, paras. 1 and 2 CID).

Member States may grant temporary protection to other categories of stateless persons, third country nationals including students and foreign workers on short-term basis, who are unable to return to their country or region of origin. Even though formally only permanent legal residents of Ukraine are protected, the Decision provides that ‘such persons should in any event be admitted into the Union on humanitarian grounds, without requiring … possession of a valid visa or sufficient means of subsistence or valid travel documents’.

This system here is mixed and includes a ‘may-clause’ on the granting of temporary protection by Member States and a ‘shall clause’ on granting humanitarian protection ‘to ensure safe passage with a view to returning to their country or region of origin’. This is a complex set of rules that ensures compliance with international law. In other words, nobody will be denied entry in the Union or will be returned to Ukraine. But, if such persons ask for international protection in the Union, they will first have to answer why they had not applied for a protected status in Ukraine, while they resided there.

It is obvious that the return of workers on short-term basis and students in the countries of origin is a reasonable rule (preamble, para. 13). The same is applicable for permanent residents of Ukraine who can ‘return in safe and durable conditions to their country or region of origin’ (Art. 2 para. 2). After all, one of the most basic principles of international law provides that every person enjoy the protection their country of citizenship, as the ICJ had decided in the Nottebohm case already in 1955. Moreover, as already explained, the system of the TPD is not an instrument of immigration, but an instrument of protection.

If third country nationals of African descent are not permitted to enter the Union, even though third country nationals in general are permitted to do so, there is a clear case of racial discrimination, constituting a violation of both the ICERD and the TPD/CID system. However, in such cases the system itself is not discriminatory, unless it acquiesces to a pattern of violations, which is a matter of fact.

Whether elements of discrimination may emerge at the point of intersection between the TPD/CID, Qualification Directive and Receptions Directive is an interesting, albeit theoretical issue. Anyway, corrective action in individual cases through interpretation and equitable considerations for the rectification of injustices is always possible. The question of an individual refugee status for Ukrainians in EU Member States has a limited practical significance, for as long as the current democratic government remains in power. In the improbable case that Russia succeeds in installing a puppet regime in Kyiv, then granting refugee or subsidiary status to displaced persons will become necessary.

6. Concluding remarks

The term ‘racism’ describes a phenomenon of social pathology with global dimensions. Racism and discrimination are perceived in different ways and managed with different tools in every social system. If the economic system focuses on poverty and social exclusion of discriminated groups, in the legal system it is about formal criteria or informal practices of discrimination and about the operational patterns of institutions. Racist and discriminatory motives of actors are not easily transformed into legal-institutional racism, which is defined by legally sanctioned discriminatory provisions and practices.

Concerns of discrimination or institutional racism in the implementation of the EU system of temporary protection are overblown. The EU should instead be praised for its policies and its willingness to welcome and protect the victims of the war. We should also not lose sight of the broader picture. The Union and its Member States are facing the long-term challenge of dystopic Russian Großraum ambitions and there is no place for complacency. A repetition of the events of 2015 would test the social and political cohesion of the European space and the effectiveness of its response. Displaced persons must be protected, but irregular mass migration movements should be prevented – and this has nothing to do with racism and all to do with geopolitics.