27 Tuesday Sep 2016
The Bratislava Declaration refers on two occasions to “the principles of responsibility and solidarity”. The basic idea is to “broaden EU consensus” by devising a “long term migration policy” on the basis of the two principles.
At first look, this seems logical and even advisable. Since 2015, the EU has been unable to respond effectively to the ‘refugee crisis’. It is only the fragile ‘deal’ with Turkey that brought the illusion of a solution by externalising asylum provision to a third country. The EU remains profoundly divided about possible internal solutions. A European East-West divide has appeared, in addition to the well-known North-South division about the principles evoked in the Bratislava Declaration. Member States in the South have been complaining for years about the lack of solidarity measures, while many Member States in the Northwest have castigated them about their inability to implement their responsibilities. More recently, Member States in the Central/Eastern part of the EU (more precisely the Visegrad group consisting of Hungary, the Czech Republic, Slovakia and Poland) are refusing, ostensibly in the name of responsibility, to engage in the type of solidarity requested by no longer only the Member States in the South, but also those in the Northwest.
The objective to heal the wounds and reunify EU Member States around the same principles of solidarity and responsibility appears reasonable and even attractive in this setting. If all Member States (including those in the South) are fully responsible, the others (in particular those in the East) will demonstrate greater solidarity, so that the problem may be solved in a balanced way. This presentation based on an opposition between responsibility and solidarity is, however, simplistic and even incorrect from a legal point of view. If there is indeed in EU law a precise legal provision that can be considered to embody responsibility, applicable in the same manner throughout EU law, the same does not hold true for solidarity (1). Moreover, effective solidarity and fair sharing are a prerequisite to responsibility in EU migration and asylum policies, rather than the other way round (2).