30 October 2011

Dublin and Beyond: ‘Each According to Its Abilities’?

Refugees are legally and morally entitled to some form of protection. This is generally undisputed. The disagreement begins when we ask the question which state will be called upon to provide that protection? David Miller discusses a comparable question in a situation where a person collapses on the street. In his article Distributing Responsibilities, Miller argues that the collapsed person is more likely to receive assistance if there is a single person, rather than several persons, passing by. This is true for several reasons, the most important of which, according to Miller, is that if there are several persons passing by, there is no clear allocation of responsibility.

In order to avoid this situation in the context of immigration, European states have, over the past two decades, created rules on responsibility allocation culminating in the Dublin II regulation. This regulation, often regarded as the flagship of the Common European Asylum System, has been the topic of heated debate following the ECtHR judgment in the case of M.S.S. v. Greece and Belgium and the ECJ Advocate-General’s opinion in joined cases C-411/10 NS and 493/10 ME. Negotiations on a recast Dublin regulation are ongoing, but seem to be gridlocked. Which lessons can the drafters learn from Miller’s discussion on the distribution of responsibilities?

Currently, the Dublin regulation establishes a hierarchy of criteria for identifying the state responsible for processing an asylum claim. In absence of family connections in the country of asylum, this will usually be the state through which the asylum seeker first entered the European Union. Asylum seekers who move to another state as a secondary movement can be sent back to the state of first entry, thereby increasing pressures on the border states of the European Union. This practice may have severe consequences in terms of human rights, as recognized in the M.S.S. case. Acknowledging that the Dublin system must be improved, the European Commission has proposed to introduce a mechanism for the temporary suspension of transfers to member states where the level of protection falls below Union standards. Unfortunately, given the politically sensitive nature of this ‘emergency mechanism’, member states have to this date been unable to reach agreement on this issue. The other changes proposed mainly relate to an expansion of the family-related allocation criteria and the speeding up of the process of identifying the responsible state. However, reconsideration may be needed beyond these modest changes.

A fundamental recast of the Dublin system should not be concerned with mere changes to the rules on responsibility allocation, ‘but with the underlying principles that should guide us …’, as Miller puts it. According to him, there are four principles (i.e. communitarian principle, causal responsibility principle, moral responsibility principle, capacity principle) that can inform a determination on the assignment of responsibility, three of which can, with some imagination, be recognized in the workings of the Dublin regulation.

A consideration that nowadays dominates the answer to the question which state is responsible for the protection of refugees in the Dublin system, but also in the global refugee regime (i.e. 1951 Convention), is geographic proximity. After all, a geographic proximate country is likely to be the first country of entry and, as such, is likely to have responsibility for many asylum seekers who arrive at its borders. The stated rationale behind this policy is to contain asylum seekers in neighboring countries, since those countries tend to have some sort of special solidarity bonds between them. This connects well to Miller’s communitarian principle. Under that principle, he assumes that agents feel a greater sense of responsibility towards those with whom they share communal ties. However, Miller himself recognizes that this principle cannot be used for all responsibility distributing purposes – a statement that also rings true in the context of immigration. Special solidarity bonds do not always exist between neighboring countries and may even exist between geographically distant countries, making geographic proximity not sufficiently morally justifiable to allocate responsibility in all cases.

Specific to the Dublin system is the idea that responsibility for examining an asylum claim should be allocated to the member state that played the most important part in the entry of the person concerned. This so-called ‘Dublin philosophy’ according to which the responsibility for deciding on an asylum claim is made dependent on the responsibility for controlling the external border, could be said to highlight the causal role played by a particular member state in ‘permitting’ a person to enter the territory of the European Union. As such, it conforms to Miller’s causal responsibility principle. Beyond that, this also involves somewhat of ‘an appraisal of the agent’s conduct’ in policing its land and sea frontiers, leaving the member state in question liable to moral blame for not sufficiently having done so. This corresponds well to Miller’s moral responsibility principle. However, the problem with both the causal and the moral responsibility principle is that they look, in the words of Miller, ‘too exclusively to the past’ in assigning responsibility. Forward-looking considerations, such as effective relief from harm in the future, are therefore not part of a determination on the allocation of responsibility. Such relief is, however, the core focus of refugee protection.

Taking their cue from the previous paragraphs and treating the provision of protection as of overriding concern, the drafters of the amended Dublin regulation may want to consider allocating responsibility on the basis of the fourth principle identified by Miller, the capacity principle. On the basis of this forward-looking principle, responsibility for ending a morally concerning situation should be assigned to the agent that can best bring it to an end. When applied to refugee situations, responsibility would thus fall on the member state that, in view of its absorption capacities, is best placed to offer protection. Besides the fact that the capacity principle, understood in this manner, is likely to be unpopular from a political point of view, it is also complex and problematic in the way that is creates incentives for member states to raise protection standards. Measures to help raise those standards in order to increase the ability of member states to offer protection seem to represent a more feasible interpretation of the capacity principle.

Having said that, the latest proposal by the Polish presidency concerning the introduction of an ‘evaluation mechanism’ should be welcomed. This mechanism, meant as a tool to address protection deficiencies before to grow into full-fledged crises, would be used as a preventive step before triggering the operation of the ‘emergency mechanism’ and will hopefully move negotiations on the Dublin regulation forward.

Tags: , , , , ,

One Response to Dublin and Beyond: ‘Each According to Its Abilities’?

  1. Nienke van der Have says:

    Very interesting blog. The capacity principle seems closely related to the ‘capacity to effectively influence’ criterion that the ICJ used to determine whether Serbia had an obligation to prevent the genocide in Bosnia in the Bosnia Genocide judgment. It is also one of the grounds of distribution of primary responsibility under the common but differentiated mechanism used in international environmental law.

Leave a Reply

Your email address will not be published. Required fields are marked *

Before you post, please prove you are sentient.

Please type the first three letters of the alphabet