You Shall Not Pass! How the Dublin System Fueled Fortress Europe
42 Pages Posted: 3 Sep 2019
Date Written: August 1, 2019
This Article examines the recent proliferation of walls and fences in Europe, fueled by the Dublin Regulation’s failure to equitably distribute responsibility for asylum seekers among European States. Legal scholarship does not lack literature bemoaning the failures of the European Union’s Dublin Regulation — which requires, generally, that the country where an asylum seeker first enters the EU is responsible for processing his or her claim for protection. Yet scholarship on border walls and fences, and what induces European States to construct them, is not prominent in the literature. The critiques lodged against the Dublin Regulation have primarily focused on its futility and unworkability. This Article argues that Dublin has failed asylum seekers in a more insidious way — by catalyzing the construction of Fortress Europe. The actions of European States during the contemporary refugee “crisis” illustrate this phenomenon particularly well.
Part I of this Article examines the contours of the international principle of responsibility-sharing; a principle that is supported throughout the history of refugee law as an ideal modality for managing refugee flows. Part II provides an overview of the Dublin Regulation and how it distorts the international responsibility-sharing principle and violates EU law requiring “solidarity and fair sharing of responsibility” among Member States. Part III traces the proliferation of border walls and fences in Europe around the height of the recent refugee crisis, arguing that the Dublin Regulation’s failure fueled European States to erect physical border barriers. It also explores the formidable combination of physical and legal barriers and how these mechanisms violate Member States’ nonrefoulement obligation. Part IV analyzes proposals for improving Dublin, including efforts to better protect refugee rights and achieve a more equitable sharing of responsibility for protection seekers. This Article concludes by questioning how the European Union can move forward and uphold the right of all persons fleeing persecution to seek and enjoy asylum in Europe.
Keywords: border wall, border fence, 1951 convention, 1951 refugee convention, asylum seeker, european union, eu law, nonrefoulement, border walls, dublin regulation, international responsibility-sharing, refugee law
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