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University of Basel

This side and that. (02/2023)

Europe is losing its credibility.

Interview: Urs Hafner

Every year, thousands of migrants drown in the Mediterranean. Switzerland could be doing more to improve the situation, says legal scholar Peter Uebersax.

A high fence at night illuminated by spotlights
With the Schengen and Dublin agreements and the establishment of the border protection agency Frontex, Europe is becoming a fortress. This was initially intended differently. (Photo: unsplash, Phil Botha)

UNI NOVA: Mr. Uebersax, we sometimes see walls painted with slogans like “No Borders” and “Borders Kill”. What do you think when you see them?

Peter Uebersax: It isn’t borders that kill, but nations that guard or close their territorial boundaries. That’s what the slogan really means. It is humans who draw boundaries between countries, and humans who have crossed state borders since time immemorial, defying all the odds. Humans have always been migrants. While totalitarian states tend to close their borders – also to prevent their own people from leaving – open and free societies have porous borders that enable movement in both directions.

The European Union sees itself as an open and democratic entity, but hundreds of migrants perish at its Mediterranean border every year.

The Schengen Agreement, the Dublin Regulation and the foundation of the Frontex border guard agency are turning Europe into a fortress. But this wasn’t the initial intention: The Schengen Agreement and the Dublin Regulation were supposed to harmonize the asylum procedures of individual EU countries and remove the borders between them. European citizens were supposed to see the EU growing closer as a positive thing. In the meantime, however, security concerns are leading to the increasing fortification of the EU’s external border, sealing Europe off against refugees and migrants from Africa and Asia, too. Europe is losing its credibility: We preach to the world about human rights while prohibiting humanitarian organizations from saving lives.

Switzerland signed the Schengen Agreement and the Dublin Regulation and contributes to Frontex, making it a part of the European fortress. It could choose to invoke its humanitarian tradition instead. Should it advocate for the removal of borders?

Humanity isn’t ready for that yet; the borders in our hearts and minds need to come down first. At this point in time, free migration would cause interpersonal conflicts due to ethnic, cultural and religious differences. The question is, how willing are societies to take in refugees? They tend to reach their limits pretty quickly, and that includes Switzerland. But Switzerland could advocate for Europe to establish legal corridors for refugees from Africa and Asia; then at least they’d have the chance to seek protection in Europe. It could also campaign for the reintroduction of embassy asylum, allowing people to apply for asylum from their home countries again. That would reduce irregular migration across the Mediterranean and save lives. Right now, refugees are forced onto the sea or away from the national border (push-backs), in violation of their human rights. We share moral and political responsibility for what is happening.

Isn’t the right to asylum a human right?

No. Countries grant asylum at their own discretion. They are largely able to decide for themselves who is allowed to enter their territory, under what conditions, and for how long. International law only covers protection against being returned to a country where a person faces potential persecution (non-refoulement). The Geneva Refugee Convention only recognizes reasons as they relate to a specific individual: To be recognized as a refugee, you must be persecuted and threatened. You won’t be granted asylum status if you flee a war, for example, or if you’re seeking a better life in a foreign country, even if you’re risking your life to do so.

Does Switzerland make an exception for Ukrainians affected by the Russian invasion?

Yes and no; Ukrainians aren’t granted asylum either. They’re given Permit S as form of temporary protection, which grants them privileges not available to people displaced from Syria, Afghanistan and Iraq by war. These people are only allowed Permit F, which is more precarious: They’re “provisionally admitted” and not allowed to travel abroad, work when they first arrive, or bring family members over for two years. But Syrians have the same needs as Ukrainians – they too want a family, a job and the freedom to travel. The justification for the unbureaucratic admission of Ukrainians is to harmonize the procedure with the EU and relieve the burden on the asylum system. But the differences in status are legally questionable.

Does a person have the right to asylum if they are fleeing the consequences of global warming, such as deadly heat?

No. Whether that will change remains to be seen; countries aren’t willing to commit themselves at the moment. The Geneva Refugee Convention was established in response to World War II, so it’s possible that the international community might one day respond to climate change by amending international law. Jurisprudential models are already being discussed. One suggests that countries in the north are obliged to accept people affected by climate change, as far as their capacity allows. For the time being, each country makes its own decisions.

What would that mean for Switzerland?

Its often-invoked humanitarian tradition is being put to the test. It’s likely to be less a case of accepting climate refugees directly, and more about relieving overburdened countries. It remains to be seen how willing the Swiss are to break down the borders in their hearts and minds.

This conversation took place in mid-August 2023.


More articles in this issue of UNI NOVA (November 2023).

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