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Why the European Commission’s Pragmatic Approach to Asylum Is Not Enough: Re-imagining Solidarity as a New Form of Conducting Regional Politics
Abstract
The failure of the EU and its Member States to adequately respond to increased refugee movements since 2015, has caused disagreement on how the principle of solidarity and fair sharing of responsibility should be given effect in the context of a reformed European policy on migration. In September 2020, the European Commission proposed the new Pact on Migration and Asylum which was meant to promote a new pragmatic approach to solidarity for achieving ‘a fair, workable and sustainable EU migration system’. This chapter seeks to interrogate this new approach to solidarity with a view to establishing the extent to which it provides a viable remedy to current and future challenges for refugee protection in Europe. The main proposition is that the conception of pragmatism promoted in the Pact emphasizes excessive formalism through calculative rules and complex procedures sidestepping questions of political organization, community and belonging that solidarity has squarely brought to the table in 2015. A re-imagining of solidarity in the CEAS as a particular form of conducting regional and global politics is suggested as the way forward.
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In this article, we explore why solidarity has not worked according to expectation in EU migration and asylum law and why it is unlikely to work in the future. First, we consider discourses of burden-sharing and solidarity in EU law from the 1990s up to the Lisbon Treaty in 2009 to identify emergent path dependencies. This period saw the introduction of primary law provisions on solidarity, such as Article 80 TFEU, as French and Dutch electorates had rejected a European constitution. Second, we perform an analysis of Article 80 through the conceptual history of solidarity, in particular, the dominant Roman law tradition of obligation in solidum and the French tradition of solidarism. We submit that the term ‘solidarity’ is actually a misnomer: already on structural grounds, Article 80 should be read as an alliance clause, countering a threat of irregular immigration. Third, we find that the practice under Article 80 as it develops during the period between 2015 and the 2020 European Commission Pact on Migration and Asylum corroborates this finding. Overall, we find that the concept of solidarity in EU asylum and migration law engenders outcome expectations that it cannot deliver as the defence alliance it is.
The impact of freedom of movement in the EU on the restructuring of national social citizenship has long been a subject of vigorous debate in both political and academic discourses. This chapter brings in the insights of critical citizenship theory to move beyond the individualistic approach to transnational rights in liberal cosmopolitanism on one hand and the static approach to solidarity in the defence of national closure on the other. Critical citizenship studies focus on acts, performances, and claim-makings outside formal institutions of participations as processes of political subjectivisation through which the citizen subject is brought into being. Rather than a fixed collection of social rights and a finalised national project, social citizenship can be understood as an open-ended process shaped by ongoing collective struggles over needs and social inclusion. Relations of solidarity and reciprocity can emerge in such processes rather than a precondition external to them. The article then considers the political significance of non-institutionalised forms of contestation over the social rights of migrants that resist and challenge the individualist and discriminatory logics in the governance of free movement. As practices geared towards constructing new solidaristic relations and identities across borders, these acts of (social) citizenship articulate an alternative understanding of mobility as social and spatial practices that enable collective engagements and set in motion inclusive forms of solidarity that traverse the boundaries of the national, the European, and the legal.
Overcoming Refugee Containment and Crisis - Volume 21 Issue 1 - Cathryn Costello
Ideas (of Karl Polanyi and others) that economies and markets are ‘socially embedded’ are central to recent research in economic sociology, closely paralleling socio‐legal claims for studying law in ‘social context’. But the concept of embeddedness is imprecise and inadequate: a sociology of law and economy cannot rely on it but must address intellectual and moral‐political concerns that its use reflects. Max Weber's writings on law and economy have inspired advocates of a new economic sociology of law, but some of Weber's key claims may be outdated, and he treats law and economy as distinct spheres rather than as facets of the social. Sociological research on law and economy should focus on ‘networks of community’ and their regulation, thus illuminating the social character of both law and economic relations. Viewing the social (including economic life) through a ‘community lens’ makes it possible to analyse cultural factors in regulating markets, while emphasizing links between economic relations and other aspects of social life.
Europe has the most advanced regional protection regime in the world. The predicted impact of this body of norms, including the new Common European Asylum System, has been widely identified as one that will have a 'ripple effect' beyond the EU. However, very few studies have noted the fact that this regime has already influenced the law and practice of states around the world, for some time. The purpose of this book is to gather evidence that emulation is happening (if it is), to explore the extent and identify the processes through which it is happening, and to examine the implications of these findings. A review of seven case studies reveals all but one of these cases provides clear evidence of emulation at some point in time. The EU protection regime, which has been most influenced by the European Court of Human Rights, is 'naturally' evolving transnationally and spreading internationally.
Despite the frequency with which the term 'community' is used, it is hard to find any comprehensive exploration of the nature and value of community. This book tries to remedy this omission whilst taking seriously the idea that community can be of different kinds and can exist at different levels, and that these levels and kinds may come into conflict with one another. It focuses on the question of what kind of community is valuable at the level of the state. It then explores the limits that ideals of political community place upon cultural diversity within the state, and the limits that, in turn, ideals of global community place upon the self-determination of political communities. This book will be of interest to students of political theory, philosophy and international relations
Experiences of solidarity have figured prominently in the politics of the modern era, from the rallying cry of liberation theology for solidarity with the poor and oppressed through feminist calls for sisterhood to such political movements as Solidarity in Poland. Yet very little academic writing has focused on solidarity in conceptual rather than empirical terms. Sally Scholz takes on this critical task here. She lays the groundwork for a theory of political solidarity, asking what solidarity means and how it differs fundamentally from other social and political concepts like camaraderie, association, or community. Scholz distinguishes a variety of types and levels of solidarity by their social ontologies, moral relations, and corresponding obligations. Political solidarity, in contrast to social solidarity and civic solidarity, aims to bring about social change by uniting individuals in their response to particular situations of injustice, oppression, or tyranny. The book explores the moral relation of political solidarity in detail, with chapters on the nature of the solidary group, obligations within solidarity, the "paradox of the privileged," the goals of solidarity movements, and the prospects for global solidarity. Copyright
An introductory question: why (still) ‘do’ human rights? This question, rare and insolent only a decade ago, has now become one of the refrains accompanying the arduous road from late- to post-modernity. For as long as criticisms of human rights seemed to be safely confined to a few die-hard neo-Marxists, securely departmentalized cultural anthropologists, and friends of the Chinese government, the (transnational) human rights activist – either ‘Western’, middle class and well endowed with the traits of cosmopolitan Kultur, or non-‘Western’ and aspiring to all of the former – could simply ignore these discordant voices. Indeed, it seemed possible, then, to spend an entire working life ‘doing’ human rights without ever stepping back to reflect on why one was actually doing them, on what ground and with what final vision of the world and the human beings in it. It seemed self-evident that human rights were both real and good, and that their absence essentially denoted intolerable human suffering. And, as this absence was the usual state of affairs, the need to ‘do’ human rights seemed never to diminish, with the challenge being so immense that it seemed capricious to engage in petty arguments on relativism or cultural imperialism. Surely, one thought, the pain felt by torture victims was the same across national and cultural boundaries, arbitrary and increasingly ephemeral as these appeared to be.
Solidarity in Europe is a comprehensive study of the idea of solidarity from the early nineteenth century to the present. It covers social and political theory, Protestant and Catholic social ethics, and the development of the concept of solidarity in eight European nations - Germany, United Kingdom, France, Italy, Spain, Sweden, Norway and Denmark. Steinar Stjernø examines how solidarity has been defined, and how this definition has changed since the early nineteenth century. He analyses different aspects of solidarity: what is the foundation of solidarity? Is it personal or common interest, 'sameness', altruism, religion, empathy, or cognition? What is the goal of solidarity? How inclusive should it be? The book also compares the different concepts of solidarity in social democratic, Christian democratic, communist and fascist parties.
After exploring the relationship between solidarity and human rights, I argue that, when considering civic solidarity, the right to solidarity as a human right may be understood as the negative right not to be hindered by social vulnerabilities in the exercise of citizen rights. I define
social vulnerabilities as those vulnerabilities that result from structures of society. As a negative right, the right to solidarity shifts attention away from what is necessary for basic flourishing and toward what social structures hinder full participation in other civic or political obligations
and rights. The analysis of a human right to solidarity provides a useful framework for understanding the crisis in solidarity in the European Union and helps to elucidate the obligations of other regional and global solidarity relations.
As the 1951 Refugee Convention has fallen into disfavor, different forms of temporary protection have been extended to forced migrants, especially from Bosnia-Herzegovina and Kosovo, as a substitute for refugee status. But the conflicting functions of temporary protection and competing motives of its proponents impede its development. Its content is being clarified in the European Union's move to address temporary protection under the Treaty of Amsterdam. Agreement on sharing responsibility for its implementation will likely be delayed.
Incluye bibliografía e índice
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Rethinking solidarity in European asylum law: A critical reading of the key concept in contemporary refugee policy
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