Introduction
Since the first demonstrations in Tunisia in December 2010, the so-called Arab Spring rapidly spread throughout several Northern African and Arab countries having immediate effects not only for the people and countries of the region but for the rest of the world also.
In this paper, in particular, I will focus on the effects of the Arab Spring on the European Union and its frontline Mediterranean countries by developing the following aspects:
1. EU institutions’ engagement to challenge the political, economic and social transition from autocratic regimes to democracy with a specific consideration on the need for EU to rethink its Neighbourhood Policy;
2. EU’s support to its frontline Member States, in particular Italy (Lampedusa emergency), facing an unexpected and massive influx of people coming from North Africa;
3. The concept of solidarity and burden sharing of responsibility between Member States.
Finally, I will try to draw some conclusions, proposing a few reflections in the light of my analysis.
I. The European Union and its renewed approach on the Neighbourhood Policy: the principle of “more for more”
From the outset, it must be said that the first EU institutions’ strategic response to the Arab Spring was quick and immediate. Otherwise, I will not go into detail by examining every single action of the European Union but focus on how the Arab Spring has forced the EU to rapidly rethink its Neighbourhood Policy.
This significant change clearly emerges by analyzing the first two acts adopted by European institutions in the aftermath of the Arab Spring.
On 8th March 2011, the first Joint Communication of the EU Commission and the High Representative of the Union for Foreign Affairs and Security Policy was adopted. It was entitled “A partnership for democracy and shared prosperity with the Southern Mediterranean” [1] and built on the following three main elements:
1) democracy and building institutions with a specific support on fundamental freedoms, constitutional and judicial reforms, enhanced transparency and fight against corruption;
2) a stronger partnership with people, particularly focusing on dedicated support to civil society (Civil Society Neighbourhood Facility and Social Dialogue Forum), enhanced opportunities for mobility especially for students, researchers[2] and business people;
3) sustainable and inclusive growth and economic development by promoting small and medium size enterprises (SMEs), seeking agreement of Member States in order to increase European Investment Bank lending, working with the other shareholders to extend the European Bank for Reconstruction and Development mandate to countries of the region, promoting job creation and training.
In a single word, this communication highlights the will of the EU to support the demand for political participation, dignity, freedom and employment opportunities coming from the Northern African and Arab countries and, what is most interesting, sets out a new approach based on the “more for more principle”.
This is an incentive based approach under which increased support in terms of financial assistance and access to the EU Single Market have to be made available, on the basis of mutual accountability, to the countries most advanced in the consolidation of the reforms. In other terms, it is based on a sort of competition between countries: the one which goes further and faster in the institutional reforms, will have greater support from the European Union. Increased EU support to its neighbours’ is, thus, conditional.
This principle was further elaborated two months later by a second Joint Communication[3] which initiated the launch of this new approach of the entire European Neighbourhood[4] Policy. In particular, this approach bases on mutual accountability, greater degree of alignment with EU policies and rules leading progressively to economic integration in the EU Internal Market and a shared commitment to the universal values of human rights, democracy and the rule of law.
Hence, it has become clear how significant, and immediate, the events of the Arab Spring were for the EU institutional think-tank. In fact, it is evident that, due to the unexpected social and political magnitude of these uprisings in the Northern African countries, European institutions had rapidly to rethink its Neighbourhood Policy approach, recognizing the need to adopt a new perspective for relations with its Southern neighbours.
II. The frontline countries: the ongoing Lampedusa emergency situation
As underlined above, the Arab Spring had an important impact on European Neighbourhood Policy but a second significant consequence, which involved both the entire European Union and its frontline countries (Italy, Malta, Cyprus, Greece and Spain), should be highlighted. In fact, these countries had to handle an exceptional flow of people coming from the Northern African countries involved in the political upheavals occurred in early 2011. These events had put the national migration and asylum system under heavy pressure, giving also rise to diplomatic disputes between Member States.
In 2011, Italy, in particular the tiny island of Lampedusa, had to cope with 50.000 migrants coming from North Africa, particularly from Tunisia and Libya. An unexpected and exceptional influx of people which forced the Italian government to send a letter to European Commission in February 2011 requesting immediate support both from EU institutions and Member States.
The EU’s reaction was prompt. Therefore, on 20th February 2011, in response to the large amount of Tunisian and North African migrants arriving to Lampedusa, the European Agency for the Management of Operational Cooperation at the External Borders (Frontex) launched the Joint Operation Mission “Hermes”[5]. The Hermes mission was part of a broader framework of measures adopted by the European Commission to tackle the exceptional migratory flows. This mission provided other actions also including cooperation with local authorities, identification of financial emergency package and assistance by the European Police Office (Europol). The European Union also provided financial assistance within the framework of two EU funds: the External Borders Fund and the European Fund for Refugees[6].
However, as pointed out above, the Arab Spring led to reflections on the relationships between Member States whenever they meet and stand up to an international challenge regarding exceptional migration flows towards Europe. In fact, from a brief analysis of the developments after the Arab Spring, there seems to be evidence of a lack of trust between Member States[7] looking at the principle of burden sharing responsibilities. This issue will be developed in the next paragraph.
III. The principle of solidarity between Member States in the light of Article 80 TFEU
Finally, it could be interesting to consider which way would be the best to follow in order to expand the solidarity between Member States especially while dealing with historical changes and consequences like those emerging in the Northern part of Africa. In particular, we must not forget that the concept of solidarity has a relevant role inside the European Union since the Schuman Declaration[8] on 9th May 1950 where, the French foreign minister Robert Schuman stated that:
« L’Europe ne se fera pas d’un coup, ni dans une construction d’ensemble: elle se fera par des réalisations concrètes, créant d’abord une solidarité de fait ».[9]
After more or less fifty years, the Treaty of Lisbon, which came into force in December 2009, has strongly reaffirmed the principle of solidarity[10], notably for external border control, asylum and immigration policies.
Indeed, art. 67, paragraph 2, TFEU provides that:
“[The Union] shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.”
Moreover, this provision is strictly linked to Article 80 TFEU[11] stating that:
“The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this chapter shall contain appropriate measures to give effect to this principle”.
These are two significant provisions establishing that, in particular matters as asylum, border checks and immigration, solidarity seems to be more than a general principle but a specific legal obligation which Member States have to respect by adopting, when necessary, appropriate measures to give effect to it (it might be noted the use of the verb “shall”).[12]
Moreover, it is interesting to deepen the role, and eventually the added value, of Article 80, second sentence, TFEU within the policies of the Union pursuant to Articles 77-79 TFEU (asylum, immigration and external border control).
The key question is the following:
Does Article 80 TFEU only represent a redundant provision which repeats a general principle or, on the contrary, a clear new legal basis giving the European Union specific powers to implement solidarity between Member States, in areas where cooperation and responsibility sharing is fundamental?
In order to answer this question, it is useful to recall the works carried out during the European Convention for the adoption of the “Treaty establishing a Constitution for Europe”. In fact, even if it never came into force, this Treaty contained several provisions which were subsequently inserted in the Treaty of Lisbon without any changes, such as Article 80 TFEU[13], and the related working group reports help us to understand the ratio beyond those provisions.
In particular, the Final report of Working Group X “Freedom, Security and Justice”[14], adopted on 2nd December 2002, stated that:
“…, the group recommends that the Treaty should reflect explicitly the objective agreed at the Seville European Council, and therefore contain a legal basis allowing the adoption of all necessary measures needed for the gradual development of a common system of external border management. This provision could serve as legal base for the adoption of measures such as promoting co-operation, training, and exchange of information and financial solidarity.”
In other words, it seems that the Working Group, being aware of the difficulties to implement solidarity in certain sensitive areas, wanted to give Member States a specific legal basis in order to adopt all necessary measures, at least for the gradual development of a common system of external border management. Thus, the aim was not only to repeat an important European principle but enabling the EU a specific power to put it into effect.
However, it seems that this ratio was not followed because Article 80 TFEU has so far not been used as legal basis of any European measure concerning these issues.
Therefore, the mechanism for coordinated sharing responsibility between Member States is practically voluntary, even if there is a clear legal provision in the Treaty for the Functioning of European Union which, whenever necessary, obliges European countries to take actions to implement the principle of solidarity in determined areas as asylum, border checks and immigration.
Conclusion
In the end, we can draw three conclusions:
Firstly, the European Union, being aware of the historical events occurring in the Northern Africa and Arab region, decided to act promptly, by concretely supporting the movement towards full democracy, greater respect of human rights, rule of law, pluralism and social justice.
Secondly, the Arab Spring highlighted that, within the European Union, solidarity between Member States is currently more formal than substantial, especially in cases where one or more Member States are subjected to a strong pressure of migrants at their borders even if the Treaty of Lisbon clearly expressed the will to improve solidarity between Member States (in particular Article 80 TFEU).
Finally, it is evident that the question of external borders is not anymore a matter solely for certain Member States but a question of European common concern which needs further initiatives in the spirit of solidarity between European Member States in order to grant assistance and protection, both for the migrants and the people living in frontline countries.
The starting point could be the adoption of new appropriate European measures on the basis of Article 80 TFEU, jointly with Articles 77-79 TFEU, beginning to give application to one of the ideas considered by the Working Group regarding “the possible longer-term perspective of a common European border guard unit operating in conjunction with national border control services”. [15]
Last but not least, a final question mark: how should the external border of the European Union be considered nowadays and in the future? As the sum of several Member States borders or as a single European Union external border?
Note
1. Joint Communication of 8th March 2011, A partnership for democracy and shared prosperity with the Southern Mediterranean, COM(2011) 200 final. ↑
2. The European Commission actively worked on boosting the number of Erasmus Mundus Scholarship for South Mediterranean students. In 2012, it has opened applications for scholarships for Syrian students (see: http://europa.eu/rapid/press-release_IP-12-1150_en.htm). ↑
3. Joint Communication of 25th May 2011, A new response to a changing Neighbourhood, COM(2011) 303 final. ↑
4. The European Neighbourhood includes not only Northern African and Arab Countries as Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, the Occupied Palestinian Territories, Syria, Tunisia but also Eastern countries like Armenia, Azerbaijan, Belarus, Georgia and the Republic of Moldova and Ukraine. ↑
5. More specifically, Frontex experts’ tasks consisted in gathering information needed for analysis, making assumptions concerning migrants’ nationalities, enabling early detection, preventing of possible criminal activities at the EU external borders and giving assistance during return operations to the countries of origin. ↑
6. The European Commission’s response to the migratory flows from North Africa, 8th April 2011, available at: http://europa.eu/rapid/press-release_MEMO-11-226_en.htm ↑
7. It is sufficient to recall the tensions arisen between Italy and France regarding the so called permits for humanitarian reasons allowing circulation in the Schengen area. See, in particular, the Decree of the President of the Council of 5th April 2011, Misure di protezione temporanea per i cittadini stranieri affluiti dai Paesi nordafricani. ↑
8. The Schuman Declaration proposed the creation of a European Coal and Steel Community (ECSC). The founding members of this Community were France, West Germany, Italy, the Netherlands, Belgium and Luxembourg which decided to pool their coal and steel production. It is considered the first step for the construction of what become today the European Union. The full text is available at: http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/ ↑
9. The importance of the solidarity amongst Member States was also recalled by the Court of Justice some years later, in 1972. In fact, at paragraph 25 of the Case C-39/72 (Commission v. Italy, 7th February 1972), the Court ruled that: “This failure in the duty of solidarity accepted by Member States by the fact of their adherence to the Community strikes at the fundamental basis of the Community rules”. ↑
10. To deepen the principle of solidarity within European Union see: C. Boutayeb, La solidarité dans l’Union européenne : éléments constitutionnels et matériels : pour une théorie de la solidarité en droit de l’Union européenne, Paris, Dalloz, 2011. ↑
11. To study in depth Article 80 TFEU and its implementation see: The Implementation of Article 80 TFEU – on the Principle of Solidarity and Fair Sharing of Responsibility, Including its Financial Implications, between the Member States in the Field of Border Checks, Asylum and Immigration, European Parliament, 2011. The document is available at: http://www.europarl.europa.eu/committees/en/studies.html ↑
12. It is interesting to point out that the solidarity principle also regards other areas of European Law such as energy (Article 194 TFEU), defence (Article 42, paragraph 7, TEU), internal security (Article 222 TFEU), but, in these cases, the Treaties seem to express it in a softer way by using the term “in a spirit of solidarity between Member States”. ↑
13. Indeed, Article 80 TFEU corresponds to Article III-268 of the Treaty establishing a European Constitution. ↑
14. Final report of Working Group X “Freedom, Security and Justice”, 2nd December 2002, CONV 426/02, p. 17. The text is available at: http://european-convention.europa.eu/pdf/reg/en/02/cv00/cv00426.en02.pdf ↑
15. See the Final Report already cited, p. 17. Concerning this aspect, it must be said that European Union has already some specific measures which should be improved in the light of the current events of migrations especially from African countries. Indeed, the “new” Frontex regulation (Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union), that came into force in December 2011, specifies that Frontex will create European Border Guard Teams (EBGT) for deployment in Frontex joint operations and rapid border interventions. The EBGT will be composed of border guards from the EU Member States, experts in different areas of border management including land and sea border surveillance, dog handling, identification of false documents and second line activities such as establishing nationalities of irregular migrants detected at the border. ↑