Fortress Europe

10 July 2002

Claude Cahn

The ERRC's first publication ever addressed the theme of "Fortress Europe" – restrictive laws, policies and practices in Europe aimed at or resulting in the exclusion of non-citizens. Divide and Deport: Roma and Sinti in Austria, published in September 1996, examined Roma rights issues generally in Austria, but was particularly preoccupied with Roma who had arrived in Austria in recent decades, since as a result among other things of the Holocaust, these comprised an estimated 5/6 of Austria's Romani population. Divide and Deport described in detail the legal and administrative scaffolding which, taken as a whole and in combination with a powerful and discursive local hostility to "Gypsies", was rendering life with dignity close to impossible for the greater part of Austria's Roma. Divide and Deport quotes a 1995 study indicating that the three major German-speaking countries – Austria, Germany and Switzerland – had particularly problematic records with respect to the integration of foreigners, more so than other European states. Would such a statement be true today?

At first glance, much has changed. First, there is the obvious fact that the destruction of the World Trade Center in New York last September has acted as a dramatic catalyst both for notching up popular anti-foreigner sentiment all over Europe, as well as for setting in motion very restrictive policies and practices in a number of European states. It is likely that we have only seen the beginning of such measures, and will not be able to assess the full impact of "September 11th" on Europe for some time. Pessimists – and such persons at present have many reasons for indulging in their preferred mode – might say that we have just seen the end of the multi-cultural era in Europe, the brief twenty years during which, in Western European cities at least, a space opened for persons from all over the world to settle and to prosper without undergoing the traditional humiliations of the pariah.

Secondly, and with little fanfare or public awareness, with the entry into force of the Treaty of Amsterdam on May 1, 1999, within the European Union, responsibility for asylum and migration issues has passed into the competence of the Union itself. Here again we have not yet seen the full implications of this event: there are no fewer than five directives currently being drafted by the European Commission, and word on the street has it that they are not likely to be issued soon. There is no way an editorial can do justice to describing the issues arising from European Union integration in the fields of migration policy and refugee protection. However, a few observations are relevant here:

• We have just entered a period in which policy unclarity and confusion of administrative competencies are likely to have a very negative impact on a large number of people. International law obligations – such as the obligation to provide surrogate "international" protection to refugees – flow to states. The European Union is not a state. Although there is currently discussion of whether and how the European Union may become a party to the European Convention on Human Rights, as yet, if such a discussion is underway vis-a-vis the primary international law document on refugee protection – the 1951 Convention Relating to the Status of Refugees ("1951 Geneva Convention") – or any other UN Convention in the field of refugee protection or migrants rights – such a discussion is going on in extremely muted fashion. Meanwhile, authorities within the Union have been working overtime to bring about conditions for giving the countries of the EU the appearance of one state, for example by using all diplomatic channels possible to ensure that, in practice, no persons from one European Union member state receive asylum in another European Union member state. One clear (and humane) system of rules is under interference, before another one has clearly come into place. The threat to justice and individuals is large.
• The "communitarisation" of European rules on borders should be very good news for people working to fight racial discrimination. Traditionally, states have argued that they have "discretion" over border policy, so (by implication) they are free to engage in all sorts of discriminatory policies and practices which they would not be free to do in the regular course of administering other social fields. While this has never really been true (racial discrimination is banned everywhere), in the past, it has not been easy for activists to win much in the field of discriminatory border policies and practices, not least because it is so hard in practice to monitor what actually goes on at a border (not to mention in the allocation of visas and other extraterritorial measures). Now, suddenly, however, as a result of European Union integration, states no longer have full "discretion" over border policies, because they have common responsibilities. Since all states are increasingly responsible for a common EU border policy, the discretion of any one individual state is significantly eroded. In light of states commitments to end all forms of racial discrimination – nearly universally adopted and repeatedly and solemnly reaffirmed – this should mean that individual EU member states and the EU as a whole now have a unique opportunity to hold each other accountable for discriminatory border policies. Is this in fact happening? If so, we have heard nothing about it. Post-1999 legal developments in the Union have failed to counter the impression that it regards racial discrimination as acceptable if the person at issue is not a citizen: European Council directive 2000/43/EC "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin", the EU's flagship document on racial discrimination, explicitly does not apply in cases of "difference of treatment based on nationality" and is "without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned."
• Then there is Central and Eastern Europe: at the "year zero" of 1989, the newly post-communist states had no significant experience of immigration or refugee protection. This is legacy still evident today. As the columnist Joe Klein has recently written of Poland, "The thing is ... well, there is no way to be delicate about it: everyone here is white. [...] their blithe presence is overwhelmed by the absence of others." Onto an ill-prepared, and frequently very intolerant basis has come the obligation to integrate European Union rules and standards. In addition, Western Europe has increasingly treated the states of Central and Eastern Europe as a borderland zone into which unwanted migrants and refugees can be expelled without explicit, egregious violations of international law taking place. A new harsh regime ordered in place by cynical Western Eurocrats, displacing the harsh old regime, in countries in which governments have done little to nothing to roll back the rising tide of xenophobia and racism: This is Central and Eastern Europe today.

How are Roma rights affected by the changes since the ERRC's first publication? In many ways, while the rules maelstrom described above rages, there is great continuity: In 1990, when several hundred Roma arrived in Germany from Romania, they were summarily expelled. Today, when several hundred Roma from Slovakia arrive in Finland, they are summarily expelled.

However, there are some interesting developments, and some small victories. For example, ruling in a case of Roma from Slovakia expelled from Belgium, the European Court of Human Rights has recently found a violation for the first time ever of the ban on collectively expelling aliens. Secondly, restrictive policies toward migrants in the West have also brought attention to the situation of Roma in Central and Eastern Europe. The recent government policies adopted in Central and Eastern Europe, as well as the rising sums of money spent on Romani issues are due in large part to concerns raised by Romani flight from Central and Eastern Europe – and pressure arising from the unwillingness of Western European states to accept these new arrivals.

But thus far such benefits are mere sparks in the darkness. They cannot compare with the huge impact on the lives of the numerous persons – Romani and non-Romani – denied a life with dignity as a result of the failure to take migration seriously as a human rights policy domain. Nor can they compensate for the powerful harm of expelling persons to places where they may suffer persecution. It is for these reasons that Fortress Europe has risen high on the list of ERRC concerns: It is the most visible, systemic evil in Europe today.