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Post-Crisis Democracy in Europe

Exploring the EU’s struggle for legitimacy

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Embracing a Piecemeal Approach in Intergovernmental Negotiation: The Case of Med-5 and the New European Asylum Support Office

Accepting half a loaf in international negotiations is always difficult. This has been especially notable in European debates over refugee policy, in which different countries have divergent interests and a mutually agreeable consensus is hard to form. However, recent developments suggest a thaw, with Mediterranean countries taking a pragmatic approach that could allow for real progress.

The pragmatic approach Mediterranean countries are taking in asylum policy is an example of how a piecemeal approach can be successful in European integration. Illustration: Ben Borg Cardona

On 8 June, the so-called ‘Med-5’ countries – Cyprus, Greece, Italy, Malta and Spain – signed a letter supporting a limited deal that would turn EASO, the European Asylum Support Office, into a full-fledged agency. On 29 June, the European Parliament and Council agreed, establishing the European Union Agency for Asylum. The deal hinges on further agreements due to a ‘sunrise clause’, but nevertheless would make an important difference, most importantly increasing the budget and personnel available to support EU member states confronting influxes of asylum applications.

A couple of years ago, I had the privilege of conducting ethnographic research for my doctorate (forthcoming, fall 2021) with asylum officers deployed to Lesvos and got to see first-hand the challenges they face. Many of these would not be addressed by the new agency status, notably inconsistent vulnerability standards and the inability to issue binding decisions (see section 11.1) . Nevertheless, the increased resources should be very helpful with application backlogs, which should reduce pressure on refugee accommodation facilities. Additionally, the new agency should be able to offer better Country of Origin (COI) and related legal guidance for EASO experts, making their written opinions on asylum cases (which national authorities use as a basis for deciding whether to grant asylum) more consistent and legally sound.

This letter from the Med-5 countries is a marked departure from their position five years ago, in which they insisted on a comprehensive deal of mandatory refugee reallocation quotas. Since that deal was scuttled as a result of disagreements in the European Council and noncompliance, Med-5 has continued to press for ever-diminishing grand bargains, most recently the New Pact on Migration and Asylum. The shift towards piecemeal negotiation – focusing on areas of asylum policy in which consensus can be found – could portend meaningful progress on non-salient technical issues. However, such an agreement could mean giving up on a negotiated solution to more controversial issues (see Baron-Ferejohn model).

Why is European migration governance hard?

The fundamental tension at the heart of the European project is its commitment to 27 member states enjoying free cross-border movement of goods, services, capital and labour while remaining sovereign in a meaningful sense. Countries have willingly ceded power over everything from technical regulations to state aid, which has allowed for a robust single market and internal migration. Despite all these harmonisations, however, areas fundamentally crucial to sovereignty, known as core state powers, have remained comparatively unaffected. Countries have independent militaries, pursue distinct foreign policies, manage independent fiscal policies and choose who can become a citizen and thereby part of their national communities.

Large inflows of asylum seekers have been an issue throughout history as wars, natural disasters and poverty tend to cause spillover effects, with people migrating to neighbouring countries in search of better lives. However, the free movement of people (which does not quite overlap with the EU’s borders due to the Schengen agreement) means that when Europe’s border countries faced a marked increase in irregular crossings due to the Libyan and Syrian civil wars, these asylum seekers could move fairly unimpeded from countries of first arrival to destination countries in northern Europe.

Third country nationals, as they are called in Eurospeak, reveal the tensions inherent in supranationalism. Migration is a member state competence, a fact made concrete in the Dublin Regulation’s insistence that asylum seekers be processed in their country of first arrival. However, freedom of movement meant that in reality applications were being lodged in Europe’s most economically attractive countries.

Following a backlash, which saw the empowerment of far-right parties across Europe, the Union became stuck. Northern and Southern Europe wanted the poorer East to take in more refugees. Eastern and Southern Europe saw the wealthy North as a magnet for migrants whose insistence on strict adherence to humanitarian law only increased crossings. And Eastern and Northern Europe saw the dithering South as incapable of managing its borders, to everyone’s detriment.

Fundamentally, the only way arrivals can be truly controlled is through binding agreements with the EU’s neighbours not to allow further crossings. However, Libya’s low state capacity and Turkey’s political conflicts with EU countries, especially with Greece and Cyprus, have made partnership difficult. Even Morocco, which has historically been quite aggressive in preventing crossings into Spanish territory, recently allowed crossings into Melilla in a reminder for Spain to take its interests in the Western Sahara seriously.

Stabilizing Libya and imposing costs on Turkey requires a common European Foreign and Security policy. However, Berlin and Athens have widely differing views on Turkey, as do Paris and Rome on Libya. Foreign policy is an unassailable core state power, and although the EU member states try to work together, with EU embassies and trade delegations across the globe, consensus is hard to reach with so many countries involved.

The Piecemeal Approach to Intergovernmental Negotiation

Critiques of European handling of refugee and many other issues tend to culminate in calls for unity. Europe needs to work together to manage the Eurozone crisis, COVID-19 vaccinations, Brexit, the rise of China and much else. At first glance, such solutions make sense because they address the underlying governance structures. This is why there are so many calls, for instance, for increasing the role of Qualified Majority Voting. Those are all fine solutions, but countries guard their core state powers jealously. By changing their approach to looking for improvements on the margin, the Med-5 countries will not fix their problems, but a more robust asylum agency will ameliorate them.

Supranationalism means, to a great extent, muddling along. And countries that can make peace with this logic will be able to see meaningful, though not transformative, change. Given the structural barriers to European cooperation on core state powers, however, better negotiation is not the key. Rather, countries should follow the lead of Med-5 and assess the realistic limits of cooperation, trying to advance whatever progress they can within those parameters.

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