Schengen, watch out the trojan horse

North African uprisings of 2011 and the consequent swelling of migration flows has put not only Italy but entire Europe in a difficult position. According to many member states of the EU the reasons of such a situation are due mainly to lacks of the Schengen’s agreements. But is that true? Is it that essential to amend the free circulation of people, considering that it became a European fundamental right? This is the core issue of our discussion with Mr. Paolo Bargiacchi, lecturer of International law from the University Kore of Enna. As a matter of the fact, professor Bargiacchi is following closely the current debate about the so-called Lampedusa-emergency.

1) The European Council of 23 and 24 June was inconclusive. The Commission was required to submit within September a document defining in detail the possible temporary and exceptional reintroduction of border checks in the Schengen area. What are the advantages and disadvantages of such a proposal?

This measure implies a few advantages and many risks. It seems, especially, out of place if we consider the main objective pursued by the “Schengen system” and the case of Lampedusa. The arrival of immigrants from North Africa is in part a humanitarian problem that needs to be managed through the relevant international and European regulations. The Schengen Area has been created because of the (“physiological” and not “pathological”) need to allow the free circulation of people, especially for economic reasons. Therefore, it is wrong to think that a so exceptional humanitarian problem may be solved by modifying a regulatory system pursuing completely different goals. The only advantage of such a reform may concern the single State which, in this way, would have the permission to “close” more easily its borders, stopping consequently migration flows on the basis of an unspecified protection of public order. The advantage of a country, however, might impact negatively on other countries. There might be the risk, indeed, of enhancing a general tendency to close borders that would throw the whole system into crisis.

2)From a legal point of view, do you believe that a revision of the Schengen Treaty may solve the problems the European migration policy is facing today? If you do not, what alternative would you propose?

A reform of the Schengen Treaty does not represent a way out. It would produce, indeed, a double negative effect. On the one hand, it would not solve the humanitarian emergency and, on the other, it would compromise the proper functioning of the Schengen system. Such a system, indeed, is responsible for making internal European market work well, because it allows people to circulate freely. Therefore, as an alternative, the EU should first of all find a general and long term agreement concerning a common migration policy to adopt throughout the years. Secondly, it should enforce the international law rules on immigration and divide immigrants coming from non-European countries according to the basilar repartition between “refugees” (those who seek asylum), evacuees (those who need some temporary protection) and “migrants” (those who seek a better life). Human rights will be respected only if the immigrants arriving on Europe’s coasts obtain the proper international law status. In this way, we can avoid the spread of a policy which, following the path of incertitude and confusion, rides the wave of demagogy, alarmism and xenophobia.

3) What mistakes did the Italian Government and the EU make concerning the emergency in Lampedusa?

The so called “Lampedusa emergency” triggered complex operational problems that are very difficult to solve. From this point of view, Italian authorities did the best they could but the intervention of the EU – in terms of financial and logistic support – could and had to be faster. From a legal point of view, Italy made the mistake of not clearly distinguishing the evacuees escaping from the war in Libya, who needed temporary humanitarian protection, from migrants seeking a better life (in fact, all those who came from North Africa, included the Tunisians who left their country after the end of the revolt). Evacuees have the right to be accepted and (temporary) protected in the receiving country. Migrants can be accepted in accordance with the migration laws adopted in the receiving country. After granting the status of temporary protection for humanitarian reasons to all those who arrived on its coasts, Italy made the mistake of giving these people the permission to circulate freely in the Schengen area. In other words, giving the “ordinary” permission to circulate freely to people who benefited from a “special” international humanitarian protection, Italy aimed at producing legal effects on the other countries of the Schengen area.

4) While the countries of central and northern Europe deal with people seeking asylum from the old continent, the Mediterranean countries have to deal with the migration flows coming from North Africa. In order to improve European migration policies, could the EU start from the reform of Dublin regulation and the strengthening of Frontex?

As already observed, the problem of immigration is not only legal, but especially political. If Member States do not find an actual common policy and do not agree to observe and adopt it, every migration flow will cause the same problems we faced during the first semester of this year. From this perspective, the reform of Dublin regulation and the strengthening of Frontex (that has already begun) represent a first step toward the right direction. However, without a long term political agreement, these measures will never produce the expected results.