Last year the Court of Justice of the European Union issued two judgments on the Syrian refugee crisis. Both cases concerned Europe’s externalization of migration policy – i.e. the legal and practical measures taken to enforce refugee exclusion outside or at the borders of the territories of EU member states. These policies have been labeled as the politics of non-entrée by Hathaway & Gammeltoft-Hansen. In the judgments, the Court decided that it was not competent to rule on the cases because it had no jurisdiction. As I have argued more extensively in an article published open access in the Journal of Refugee Studies, the result of this is that law is not only an instrument for excluding people from European territory. The exclusion now runs through law itself. Although European fundamental human rights law is still formally neutral, the exclusion of non-Europeans is becoming a core element of European law.
While Trump’s Executive Order is widely viewed -including by myself – as an abject measure and a violation of international and human rights law, including children’s rights and refugee rights, I cannot help but question how much better Europe is faring in dealing with its borders, its migration policy, and its international protection obligations.
The headlines we saw over the past two years were European. Indeed, the word “crisis” was first attached to refugees when the refugees showed up in Europe. But this is not a European issue, or even a Western one. The numbers of refugees reaching Europe fell in 2016 to about one third the 2015 levels from 1 million to 300 thousand thanks to the constraints on transit imposed by Turkey as part of the EU Turkey deal. The Syrian war was plainly a humanitarian crisis for the millions of persons displaced by the violence. The dangers of crossing the Mediterranean from Libya have not declined. But for Europe, the secondary flow of refugees from Syria’s neighbors presented and presents not a demographic or economic crisis (the number of asylum-seekers arriving in Europe is about one-half of one percent of the continent’s total population). The crisis is one of governance, more specifically governance failure.
On 5 August 2016, the UN News Centre published a picture captioned UN team in Jordan uses cranes to hoist aid to Syrian refugees at sealed border. The picture is taken from Jordanian territory. The low mud wall behind the trucks marks the Syrian border. At the time, Amnesty International reported that more than 75,000 Syrian refugees were living in the desert on the Syrian side. The text accompanying the picture reports that “life-saving food and other supplies from the United Nations” are being “hoisted by crane and monitored by drones across the closed frontier” in what is called “a unique operation.” The World Food Programme delivered food packages, the International Organization for Migration contributed bread, and the UN’s children fund UNICEF hygiene kits. This picture, as well as the perky accompanying press release, captures the outcome of international, and in particular of European policies vis-à-vis the Syrian refugee issue. In 2011, Syria had 23 million inhabitants. At present, some 11 million of them have been uprooted; 6.5 million of them are internally displaced (IDP’s, including the 75,000 people at the Jordanian border), and 4.9 million have sought refuge outside Syria.