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Mass migration and state failure – legal, political and cultural aspects of the refugee crisis

by Prof Dr phil Dr h.c. Dr h.c. Hans Köchler *

“Looking at the current debates on the refugee and migration issues, I do not remember any situation in which the published opinion was so diametrically opposed to the public opinion. This raises serious questions about the state of democracy in Europe.”

I will divide my presentation into three sections. First, I shall discuss the constellation in the Middle East and give a brief historical overview up to the presently witnessed collapse of states in the region. In a second step, I shall deal with the events that I consider as state failure and destabilisation in Europe. Finally, I shall address the question as to the aims and intentions behind these developments. This concluding section of my presentation could be entitled “New World Order?” (with question mark). Before entering into the details, I would like to make some preliminary remarks.
Looking at the current debates on the refugee and migration issues, I do not remember any situation in which the published opinion was so diametrically opposed to the public opinion. This raises serious questions about the state of democracy in Europe.
Since the facts are widely known, I shall not repeat them here in detail, but rather concentrate on the reasons why we are confronted with state failure hic et nunc – not only in the Near and Middle East, but increasingly also in Europe, both at national and international or, as is often said, “supranational” level. One of the consequences and repercussions of this state failure in the Middle East is today’s mass migration, which, in turn, is about to cause state failure also in Europe.
I shall also focus on the geopolitical dimension of these events, and in particular the question of the intended – resp. unintended – consequences. Some of the questions arising in this context are: Is the mass migration to Europe indeed an unanticipated – and thus unintended – consequence of military interventions of the West in the respective areas of the Middle East, including North Africa? Should this be the case, would the appropriate phrase then be that of the “curse of the evil deed”, or – and this is the second possibility – are there coincidences and connections that could be evidence of a larger geostrategic design?
In the subsequent three sections, my analysis will also focus on the following question (and in particular its implications for the European Union): Are the developments that mean that Europe is actually being overrun – including the effective abrogation of practically all legal and safety barriers – happening by design, and if so, to what extent? Or is all of this merely a symptom of a society that is mainly focused on prosperity and fun and has lost the will to assert itself?
As an Austrian, and in view of what happened on a massive scale in front of our eyes last year, I should also like to ask: Why did the Republic during those long months surrender to the law of the jungle? Without going into the all too familiar details, I just recall here the general fact: The state allowed hundreds of thousands of people to enter, in many cases even without knowing who they were, and subsequently transported the largest number of them to the German border – almost as if it were running a state network of human trafficking.
I would like to make here a terminological clarification: The people immigrating into Europe are, strictly speaking, not war refugees, but migrants – welfare immigrants, to be exact, either because they originally are citizens of safe countries or because the countries they directly arrive from are “safe third countries”. The latter is the case almost without exception. I shall later comment in more detail on the legal implications.

I. Constellation in the Middle East and brief historical overview

“These wars of aggression – more or less convincingly camouflaged as humanitarian interventions, depending on how one sees it – have not only have profoundly destroyed the political order in the affected countries, creating so-called “failed states”; they also – in Afghanistan, Iraq, Libya and, to this day, in Syria – triggered a chain reaction at the preliminary end of which stands the uncontrolled mass migration to Europe.”

In the first part of my presentation I shall focus on developments in the Middle East. I have been regularly visiting the countries of the region since the 1970s. I do not intend to comment on newspaper reports and commentaries. The basis of my analysis will be my personal observations and the experience of my cooperation with intellectuals, political leaders and civil society organizations all over the region.

Collapse of artificial order set up by victorious powers

We are presently witnessing the collapse of the order created by the will of the victorious powers, the former colonial countries, after World War I, out of the territories of the Ottoman Empire. Not only the so-called Islamic State (IS) of today has proclaimed the “end of Sykes-Picot”. (The name means the secret treaty on the division of spheres of influence in the region of the Middle East that was concluded between Britain and France and signed by their Foreign Ministers in 1916.)
One must also acknowledge here a further historical fact: The political map of the Ottoman Empire – with its historically grown administrative units, or provinces (vilayets) – had been – and I may be a bit nostalgic here – relatively harmonious in comparison to the order that followed it. The Ottoman order was replaced by artificial, often ethnically heterogeneous entities modelled on the European nation-state. This meant that areas of settlement were arbitrarily divided – see the fate of the Kurds – or that mini-states were carved out from historically grown units, so to speak as domaines réservés in the interest of the respective great power.
I do not want to focus here on the consequences of the so-called Balfour Declaration of 1917 through which the United Kingdom triggered a development that culminated in the still unresolved “Middle-East conflict.” As a result of this Declaration, the historical area of Palestine for which Britain, after the collapse of the Ottoman Empire, had received a League of Nations mandate, was disposed of without any attention given to the rights of the native Arab population. It is to be recalled that, in the course of the Arab Revolt of 1916, the Arabs had been given assurances of their right to establish a state on their historical land. The secret mission of “Lawrence of Arabia”, a British agent, is falsely idealized in Europe.

Self-assertion in the context of East-West rivalry

The inhomogeneous nation-states in the region could resp. can only be kept together by a strong and stable central authority. Everything else is illusion. This is obvious, for instance, in the case of the Republic of Iraq with its complex multiethnic and multireligious composition (Kurds, Arabs, Christians, Yazidis, Muslims, and here again Sunnis and Shiites). It would be dishonest to expect that a state created by outside interference – as it were, according to the will of the victorious powers after World War I – can be held together by means of “liberal” politics which Europe needed centuries to develop. Furthermore, the, albeit precarious, balance of power between the two superpowers in the era after the Second World War was crucial for the maintenance of state order in these countries. This constellation gave the respective governments or rulers in the Middle East a kind of room for manoeuvre amidst the rivalry and power struggle between East and West, enabling them to assert their interests, if need be, by playing both ends against the middle.

Awakening of Arab national consciousness

During this era, the awakening pan-Arab national consciousness was an important stabilizing factor. The Arabs were eager to emphasize what was common among all their countries. Arabic language and culture were the glue between religiously and ideologically often very different polities. It was notably the emphasis on the common Arab nation (in the sense of cultural identity), which enabled them to overcome religious rivalries and antagonisms. The role of the (secular) Baath Party must be seen in this context. Founded by a Christian philosopher and sociologist from Syria, the party had been extremely influential in the whole region. In this period (from the 1960s to the 1980s), and not only in Iraq, but also in Syria and in Nasser’s Egypt, the people were inspired by the idea of the one Arab nation existing in the form of several political entities – altogether more than 20 states. (However, in the domestic politics of Iraq, a country that is ethnically not homogeneous, this ideology proved controversial as has become evident in the course of the conflict in its northern Kurdish region.)

The era of a single world power

When the Cold War ended and communism collapsed in 1989, the Arabs suddenly found themselves at the mercy of a single world power. Incidentally, in the days and months after the disintegration of the Eastern Bloc and the collapse of the Soviet Union, Saddam Hussein, the president of Iraq, clearly identified the dilemma for national Arab politics that resulted from this geostrategic change. As early as 1990, he initiated an Arab summit conference to reassess the situation. Yet, in retrospect one must acknowledge that, although he was aware of the problem right from the start, he did not draw the proper conclusions, much to the detriment of his country.
One should not ignore, however, that Arab nationalism, i.e. the emphasis on common heritage and the conviction that the Arabs were one nation – even though existing in different states due to historical circumstances, did fit well into the mood of the era of decolonization after the Second World War.

State failure in the Near and Middle East

This brings me to another aspect, which I would like to describe as “state failure in the Near and Middle East”. It was the Americans who introduced the term “failed state” – all too often to justify their own interventions according to the following pattern: You first acknowledge somewhere a situation of state failure so that you subsequently can claim a responsibility to intervene. However, recent history has demonstrated that military interventions all too often profoundly destabilized hitherto relatively stable states, turning them into so-called “failed states”.

Reassertion and renaissance of Islam in response to the ideological monopoly of the West

As I have indicated earlier, after the end of the Cold War the state systems in the region were no longer able to assert themselves in the face of the political-ideological pressure from the United States, which had suddenly become the sole superpower, indeed the global hegemon. This resulted in a kind of delegitimisation – in the eyes of the inhabitants – of the political systems in these countries. I still have vivid memories of conversations with personalities from all over the Arab world, in particular in Baghdad, Cairo and Damascus, in the early 1990s. These exchanges made me aware that a kind of ideological vacuum was suddenly developing, which – also quite rapidly and comprehensively – was filled by Islam. Even in Iraq, the hitherto strictly secular president suddenly discovered his religious vein. (As for the return to religion and the political significance of this paradigm shift, the process admittedly started much earlier in the Shiite environment of Iran. More or less as a reaction against the obsessive attempt of the Shah of Iran to spoon-feed his people with Western values and life-style, the reassertion of their Islamic identity fuelled a popular revolt, which eventually led to the overthrow of the régime in 1979.)

“As the international public has had to acknowledge by now, civil wars and mass flows of refugees and displaced persons have been the direct consequence of these interventions. It is to be noted that in all the above-mentioned cases we are dealing with cases of state failure that was deliberately and directly triggered by the intervening powers. The phrase of “humanitarian intervention” has become the favoured ideological tool to justify these interventions that seem to be part of a larger strategy of destabilisation. The more recent term for the doctrine, considered to better conceal the real motives, is the phrase “Responsibility to Protect” (R2P).

Destruction of stable states by military intervention

The invasion of Kuwait by Iraq in the summer of 1990 was the traumatic event that brought the end of pan-Arabism. This subsequently led to the effective elimination of Iraq as a regional actor in the course of the Gulf War of the following year. As a result of comprehensive economic sanctions imposed on the country through more than a decade, officially on behalf of the United Nations, but actually by the US and its allies, the process of political “neutralisation” and marginalisation of Iraq continued. To my knowledge, these were the most comprehensive and brutal coercive measures ever enforced in the name of the United Nations Organization. They caused the death of up to a million, if not more than a million, innocent citizens. Even if I cannot talk about it in detail here, one will have to keep this fact in mind in order to understand what is happening today in Iraq and the region around it, especially in Syria. To stress it yet again: these sanctions are historically unique as crimes against an entire nation on behalf of the “international community”.
After the still not fully investigated events a decade later, namely on 11 September 2001, the United States’ now unbridled assertion of power resulted in the dismantling, step by step, of the region’s existing order. In this context, the US, with its allies, undertook military action – whether or not in the name of the United Nations – against key countries in the region. These wars of aggression – more or less convincingly camouflaged as humanitarian interventions, depending on how one sees it – have not only have profoundly destroyed the political order in the affected countries, creating so-called “failed states”; they also – in Afghanistan, Iraq, Libya and, to this day, in Syria – triggered a chain reaction at the preliminary end of which stands the uncontrolled mass migration to Europe. This brings me to the main topic of today’s presentation.

Aspects of state failure in the region

We must differentiate here between two aspects of the consequences of state failure in the region of the Middle East. (1) People are fleeing because the state sinks into the abyss of war. This has been the case in Iraq, in Libya, but also in Syria and, largely ignored by the West, in Yemen (where – similar to Syria – a foreign-backed and extremely brutal civil war is raging). (2) Another consequence of state failure must be strictly distinguished from the first: The state sinking into chaos becomes the deployment zone, or logistical base, for the immigration to Europe from another region. Libya is a case in point. The country has been made the de facto staging ground for the organization of mass migration from the sub-Saharan countries of Africa. Notably, we are dealing here with a “state” that has effectively ceased to exist as a sovereign entity – a country with two governments, two parliaments and numerous rival militias and regional authorities, all on the vast territory that was formerly referred to as the “Great Socialist People’s Libyan Arab Jamahiriya”.
If we let these developments pass in review, we must also be aware that there is no effective pan-Arab organization which could establish, or restore, order in the region – and that, in the final analysis, such an organization has never yet existed. Realistically, the League of Arab States, which recently met in Mauritania to discuss the situation, can merely make informal, entirely optional declarations. Although it would be its assigned role – as regional organization and according to its statutes – to exert a stabilizing effect, the Arab League is only able to play the part of passive observer. Regrettably, by its actions, this organization in recent history has instead rather provoked wars of aggression, as has been obvious in the case of what happened to Iraq.

“In hindsight, one can today say that the United States tried to seize the moment – after the collapse of the communist empire – to secure once and for all its hegemonic position at the global level. This geostrategic ambition became even more obvious, a decade later, in the National Security Doctrine proclaimed by President Bush junior the essence of which was that the United States will never accept a situation of strategic parity with any other country. Looking at this in the larger context of world history, one might diagnose here a classical case of the insatiable lust for, and self-deception of, power.”

“It has become increasingly evident that the Union is a dysfunctional entity whose officials and administrators apply conflicting rules as they may see fit, i.e. on the basis of double standards and political convenience. This is the case not only with refugee – or more specifically migration – problems, but with the failed monetary policy as well.”

II. State failure and destabilisation in Europe

This brings me - in the temporal sequence of events – to state failure and political and social destabilisation in Europe. Again, I do not intend to present obvious facts in detail. My aim is, first and foremost, a political, legal and social analysis of the problems we are faced with in Europe.

The European Union turns out to be a political misconstruction

Regarding the political aspect, we must unfortunately note that the European Union has proved to be a complete misconstruction. We are dealing here with a colossal state failure in the intergovernmental sphere (in regard to the cooperation between states). In the handling of the “refugee crisis” (I shall speak in more detail later on the use of that term), the European Union acted as a kind of superstructure pretending to be a nation-state, but getting ever more bogged down by its ineffective, inconsistent rules and regulations, indeed a strange mix of national and supranational competencies. It has become increasingly evident that the Union is a dysfunctional entity whose officials and administrators apply conflicting rules as they may see fit, i.e. on the basis of double standards and political convenience. This is the case not only with refugee – or more specifically migration – problems, but with the failed monetary policy as well.

Dishonest politics and loss of confidence

As regards the so-called refugee policy, the failure of the Union is particularly obvious in the following facts: First, in a “policy of the wide-open barn door”, i.e. the insistence on the continuation of the Schengen regulations (namely freedom of travel between the treaty states) with the simultaneous total neglect of the protection of the external borders of the treaty area. Despite the many declarations and promises by politicians and bureaucrats, this has not changed to this day. So far, there exists no effective protection of external borders (without which the Schengen regime makes no sense at all). It amounts to fraud on the people if one sings paeans to the freedom of movement and, at the same time, places border controls within the Schengen area under a taboo even though the external borders are not in any way secured. As we have seen, a country like Hungary, which last year made a vigorous effort to implement the existing provisions of the Schengen Treaty, was politically sabotaged and denounced all across Europe. Under these circumstances, it is not surprising that people are steadily losing confidence in European institutions, which act so dishonestly. For the sake of fairness it should be added here that Austria eventually, though with hesitation, adopted the position of Hungary – on the initiative of the youngest member of government, namely the Foreign Minister. Austria effectively co-ordinated its migration policy with the countries of the Western Balkan and the Visegrad states (Poland, Slovakia, Hungary, Czech Republic), which also meant that Macedonia in particular was encouraged and supported in its measures to secure the border with Greece.
The second aspect of the failure of the European Union – and of the credibility deficit of the European system as such – is the dishonest handling of the so-called Dublin Regulations – under circumstances where nothing at all is done for the joint protection of external borders. This continued omission has made the regulations actually obsolete. The proper handling of arrivals and initial registration of migrants in countries such as Greece, which is in serious economic difficulties, has proved to be illusory. Though at present (July 2016), there is some relief on this front, this is not related to the actual protection of external borders or the implementation of the Dublin Regulations. It is solely due to other arrangements, made in an “ad hoc” fashion. On the one hand we are talking here about the co-ordination of the migration policy between Austria and the Western Balkan states, on the other there is also the attitude of Turkey, which – for reasons I cannot discuss here in detail – is now proving to be quite capable and willing to better control the departure of people from its territory.

“According to international law, the ability to exercise and maintain control of its territory is an essential criterion for a state to be recognised as a sovereign member of the international community, which necessitates effective border controls.”

Self-dissolution of state authority through lack of border control

This brings me to another aspect of state failure and destabilisation in Europe, namely socio-political failure. In the course of last year’s events, states that, from a formal point of view, are legally sovereign did not in any way demonstrate the will or ability to effectively exercise their sovereignty. (With regard to Austria, however, there has been, as I said, some change; at the beginning of this year, the Foreign Minister, the Minister of Interior and the Minister of Defense have begun to co-operate – and suddenly one dares to speak, openly and in public, about the necessity of securing the country’s borders. Until recently, people were afraid of being maligned as racists or fascists should they have emphasized that requirement.) According to international law, the ability to exercise and maintain control of its territory is an essential criterion for a state to be recognised as a sovereign member of the international community, which necessitates effective border controls. In view of this basic criterion of statehood, to insist on a policy of “open borders” is deceptive, and the phrase is actually a stupid euphemism. The very term “state” implies the existence of an association of people that is capable of making a distinction between its own territory and that of another such entity. This condition, namely the exercise of effective control over the territory, is currently no longer met in many European countries.
As for Austria, there is now at least an acknowledgement on the part of the Defence Minister and the Minister of Foreign Affairs that something must be done. However, should it come to a mass rush on the southern border, the country would not currently have the resources to effectively defend its sovereignty. In actual fact, in the course of the past year – up to the agreement with the Balkan countries – migrants were able to enter freely, and this was the case even when they rejected proper identification by the authorities and, thus, prevented their legally required registration. The people who had illegally entered into Austria were then allowed to decide by themselves whether to stay in the country or to proceed to wherever they wanted – the choice was entirely theirs. Police and the military were restricted to the role of impotent observers and providers of humanitarian aid.

External and internal delegitimisation of the state

I would like to refer to two additional aspects in terms of law and state politics, namely delegitimisation and destabilisation. (1) We are faced with a twofold delegitimisation of the state – external as well as internal. The “external delegitimisation” has become obvious in the effective surrender of sovereignty. A state that refuses to exercise its sovereignty in a central aspect of statehood – namely the border regime – is not taken seriously by the international community and loses its status as a trustworthy partner.
As regards “internal delegitimisation”, one may best illustrate the problem with a question: Why should the citizens, as subjects of the law, subordinate themselves to the coercive power of the state in which they live, if this very state violates its own laws thousands of times every day, simply following political convenience and, thus, implicitly negating the fundamental right of its citizens to safety and security on the territory governed by the state? Such a state displays total disregard for its central responsibilities vis-à-vis the citizens who are subject to its jurisdiction.

“Why should the citizens, as subjects of the law, subordinate themselves to the coercive power of the state in which they live, if this very state violates its own laws thousands of times every day, simply following political convenience and, thus, implicitly negating the fundamental right of its citizens to safety and security on the territory governed by the state? Such a state displays total disregard for its central responsibilities vis-à-vis the citizens who are subject to its jurisdiction.”

Application of double standards destroys the basis of the legal system

(2) These processes eventually lead to the destabilisation of state order, and in several respects. I shall describe this very briefly.
Firstly, as a result of the application of double standards by the state itself, the legal system is gradually undermined. If, in one case, thousands are simply waved through while in another case the individual citizen entering the country at the airport is subjected to meticulous controls, different – contradictory – rules are applied for crossing the border. Another example of this duplicity is that, on the one hand, the state admittedly punishes the smuggling of refugees in individual and specific cases, but on the other hand assumes the role of human trafficker on a large scale. One does not need to give any details regarding the transfer of illegal immigrants, for example, to the German border with Austria.

Disintegration of civil society

There is a second aspect of destabilisation: The presence of an increasing number of immigrants from entirely different cultures and with a different understanding of state and society not only leads to social tensions and conflicts, but also to the disintegration of civil society the preservation of which is indispensable for a functioning democracy. The loss of control over immigration also gives rise to a host of problems in terms of homeland security. The key aspect of all these developments is a dramatic loss of social consensus.

Loss of consensus at intergovernmental level

A third aspect of destabilisation refers to the pan-European, i.e. intergovernmental level. Here we are dealing with a loss of consensus among the member states of the European Union. This is reflected in the ever growing divergence between the positions of the “new” and “old” member states on the question of migration, a process that may well lead to the collapse of the supranational construct of the European Union. What we are faced with here is a version of the war of all against all. It is not surprising that an ever-larger number of states have begun returning to nation-state solutions or, according to their specific interests, entering into regional agreements outside the framework of the EU. The agreement between Austria and the Western Balkan states – concluded without “permission” from Brussels or Berlin – is clear evidence of this preference. Europe indeed witnesses a steady trend of its polities reverting to the mechanisms of the nation-state. By now, many have realized that it is only at this level that specific problems, which directly relate to the public interest, can be solved effectively. However, after decades of erosion of state authority, this re-dimensioning of policies happens at a substantially lower level because many states no longer possess the necessary resources, for example, to defend their borders.

State failure due to imprecise legal concepts – conceptual clarifications

This brings me to the legal implications of destabilisation. In the current European debate, the legal terms related to refugee status and migration are used in a highly imprecise way. This has been a major reason for the actual overextension of state structures, the states’ inability to cope with accumulated obligations, and increasing state failure. A conceptual clarification seems to be in place.

The Geneva Refugee Convention

Firstly, the Geneva Convention relating to the Status of Refugees of 1951, which is considered legally binding for all EU countries, does not relate to “war refugees”. This fact is not at all communicated to the population in the member states. The truth is that armed conflict as such is not a reason for refugee status under this Convention. Article 1 (A) (2) of the Convention defines as refugee a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” It does not automatically follow from this definition that, under conditions of armed conflict between states, the entire population has the right to asylum resp. to apply for asylum. A situation of war means a general threat to life, without distinction as to religion, ethnicity or ideological association of the citizens. Thus, for persons in the affected countries, the circumstances of armed conflict do not necessarily constitute a specific situation of discrimination or persecution under the Convention. The relevant criteria enumerated in the Convention may, however, apply to many persons affected by civil war; but this is not necessarily so when a country is attacked from outside.
Secondly, talking of legal terms, one must note that, according to Article 31 of the Convention, the thus defined refugees who enter illegally into the territory of a state will only enjoy impunity if they (1) arrive directly from a territory where their life or freedom was threatened in the meaning of the previously mentioned Article 1, and if they (2) “present themselves without delay” to the authorities of the state they have arrived in (Article 31, Paragraph 1). These are the provisions of the Convention. This means, however, that virtually none of those who enter the countries of the European Union by boat or on land are entitled to impunity, and that they cannot claim the right to apply for asylum because they have arrived from countries where they were not persecuted. This further means that no EU country is legally obliged – under the Convention – to allow people to enter. It goes without saying that an intergovernmental organization such as the European Union – or any sovereign state for that matter – is entirely free to opt for a different, more generous solution. A country may, at its discretion, declare that all refugees from all over the world are welcome at any time and that there is no “upper limit” to the number of people allowed to enter. It must, however, bear the consequences of such a policy and must not load the burden on the shoulders of other states. Conversely, it cannot be disputed that every country, in the exercise of its sovereignty, has the right to take precautions against the illegal entry of foreign nationals. By implication, every state also has the right to expel persons who entered in violation of the law. This argumentum e contrario is also implied in the wording of Article 32, Paragraph 1, of the Geneva Convention.

The Cold War as historical background of the Convention

The Convention was originally meant for persons who had become refugees before a certain date, namely the 1st of January 1951. The Protocol of 1966 (“Protocol relating to the Status of Refugees”) lifted this temporal restriction. A rarely mentioned provision may be of interest in this context: a state may, by declaration upon accession, limit the geographical scope of the application of the Convention. The Republic of Turkey, for example, has made use of this provision. Due to its declaration, Turkey has continued to apply the Convention according to Article 1 (B) (1) (a), namely only to “persons who have become refugees as a result of events occurring in Europe.” In the current situation, it is a supreme irony that the country whose cooperation is of such great importance for Europe is legally only obliged to apply the Convention in regard to refugees from Europe, not from the Middle East or Asia. Turkey has made a further notable reservation, namely that “No provision of this Convention may be interpreted as granting to refugees greater rights than accorded to Turkish citizens in Turkey.” In terms of history, it is also of interest that the Convention, as it was applied to refugees from before 1 January 1951, mainly covered persons who had fled to the West in the wake of the political upheavals in Europe after the Second World War so as to escape from persecution in the communist countries. In the situation of the Cold War, support for political refugees was a crucial motive for the drafting of the Convention. It is worthy of note that conventions and regulations on the status of refugees also existed prior to the Convention of 1951. Those related, in the wake of the First World War, particularly to persons from the Soviet Union and Armenia (Arrangements of 1926 and 1928) and, after the seizure of power by the National Socialists, to persons from Germany (Conventions of 1933 and 1938). However, a worldwide and temporally unlimited system for the protection of refugees has only existed since the 1960s.
Whatever the historical constellation may be, under the regulations and definitions of the current Convention, any person who has voluntarily left a “safe third country” is no longer to be regarded as “refugee,” but as a migrant. This means that the persons who, under the present conditions, arrived in Europe and are generally referred to as “refugees” according to the Geneva Convention are, in actual fact and in the overwhelming number of cases, economic migrants. (“Economic refugee” would be a misleading term.) Economic migrants are persons who travel purposefully from one country to another in search of the best possible conditions.
A third legal aspect is also mostly unknown to the public: In accordance with Article 44, Paragraph 1, any contracting state may denounce the Geneva Convention at any time. The denunciation will take effect for the contracting state one year from the date upon which it is received by the Secretary-General of the United Nations. This means, by implication, that the right to asylum is not a quasi-eternal or immutable principle of international law, namely a norm that, in legal theory, would be described as jus cogens. Further commenting on the legal status, one might emphasize that the Universal Declaration of Human Rights of 1948 – that is so often invoked in this connection – is not in any way legally binding as regards the status of refugees and the right to asylum. Article 14, Paragraph 1 of the Declaration states rather generally: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” The Declaration does not further specify this notion. Furthermore, as the title – “declaration” – clearly indicates, this is not a treaty with binding norms, but a kind of consensus document through which the community of states solemnly declared what it understands as human dignity. We are essentially dealing here with a declaration of moral principles or guidelines, i.e. an expression of how the international community that adopted the Declaration expected countries to act. It is worthy of note, in this context, that no provisions for asylum or refugee status are included in the two International Human Rights Covenants that “operationalised,” so to speak, the maxims of the Declaration of 1948 and drafted them into law. I refer here to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both adopted in 1966 and entered into force in 1976).

“The only hope of a geopolitical reversal will lie in the emergence of a multipolar balance of power at the global level. In the medium term at least, this could become a viable alternative to the current rather unstable unipolar constellation.”

III. Geopolitical issues

This brings me to the final, geopolitical, question within the framework of the topic assigned to me today: If we look at the movement of refugees, indeed the mass migration, to Europe, are we dealing here with a process of destabilisation in the name of a “new world order?
Because of the developments in recent months and the increasing gravity of the situation, we can no longer avoid this question. We should also not let ourselves be intimidated by those who are quick to dismiss critical questions as inspired by “conspiracy theories.” Let us not forget that, by definition, every court that passes a judgment in a criminal case must – if there is more than one perpetrator – develop a conspiracy theory in the literal sense of the word. As mature, responsible citizens who shape their opinion independently we must not back down here.

“New world order and conspiracy theories”

As regards the notion of a “new world order,” I made an effort in the early 1990s to analyse and pinpoint the underlying ideology. In his Address to the Nation on 16 January 1991 – at the start of the second Gulf War, in the wake of the occupation of Kuwait by Iraq – President Bush senior solemnly declared the dawn of a “New World Order”. He literally spoke of a system of relations between states “where the rule of law, not the law of the jungle, governs the conduct of nations”. He characterized this as the essence of his “New World Order”. In hindsight, one can today say that the United States tried to seize the moment – after the collapse of the communist empire – to secure once and for all its hegemonic position at the global level. This geostrategic ambition became even more obvious, a decade later, in the National Security Doctrine proclaimed by President Bush junior the essence of which was that the United States will never accept a situation of strategic parity with any other country. Looking at this in the larger context of world history, one might diagnose here a classical case of the insatiable lust for, and self-deception of, power. The evolution of world politics in the past two decades must be seen in this context. An essential part of this strategy was the claim of the United States to reshape the entire region of the Middle East in accordance with its own interests, so to speak, nomine novi ordinis saeculorum (“in the name of the new order of the ages”). The slogans of “democracy” and “human rights” were instrumental in the propagation of the ideological concept of a so-called “New Middle East”. The historical, political and legal facts of the refugee crisis must be interpreted in this historical and geostrategic context, and coincidences and temporal sequences must be considered carefully. I shall briefly demonstrate this by five examples.
First, I shall refer to the destruction of the political order by armed force – in blatant violation of the UN Charter – in Afghanistan (2001), Iraq (2003), Libya (2011), and Syria (a process that has been underway in the country since 2011 and is also connected to the more or less open foreign support of armed Islamic groups on the territory of that state). As the international public has had to acknowledge by now, civil wars and mass flows of refugees and displaced persons have been the direct consequence of these interventions. It is to be noted that in all the above-mentioned cases we are dealing with cases of state failure that was deliberately and directly triggered by the intervening powers. The phrase of “humanitarian intervention” has become the favoured ideological tool to justify these interventions that seem to be part of a larger strategy of destabilisation. The more recent term for the doctrine, considered to better conceal the real motives, is the phrase “Responsibility to Protect” (R2P).

Use of “new social media” by intelligence services

Secondly, one must be aware of the manipulation and instrumentalisation of the so-called New Social Media by intelligence services in the course of the Arab Spring of 2011. Here too, the result was political chaos akin to civil war of which the events in Egypt are exemplary evidence. Similarly, the uprising and subsequent civil war in Syria was essentially triggered with the help of these information technologies. It is to be acknowledged, however, that use of the New Social Media was one of many factors that led to chaos and destabilization in that country.

The “Islamic State”

The third example is the emergence of the “Islamic State”. Its official name is “Al-dawla al-islamiyah fi al-Iraq wa al-Sham”, meaning Islamic State in Iraq and Al-Sham (the latter word describing the historic region also including Palestine and Lebanon). This “state” not only claims these territories, but also areas in other states such as Egypt, Libya, Mali, Nigeria, the Philippines (namely the island of Mindanao), Afghanistan, and in Central Asian states such as Uzbekistan.
The ideological appeal of the Islamic State on population groups in Europe must not be underestimated either. This not only relates to the risks of infiltration due to an uncontrolled flow of refugees, but also to the radicalisation and recruitment of Muslims already living in Europe for the cause of the Islamic State.
In this regard, I want to caution against underestimating the emotional potential of a return to the Islamic tradition, especially among the young. It is also utterly naive to believe that putting their signature under a list of principles will somewhat magically turn asylum-seekers (or, in most cases, migrants seeking a residence permit) into persons committed to a secular understanding of the state in the tradition of European Enlightenment. They will not, as it were, with a stroke of a pen, dispose of their religious convictions. By posing as schoolmaster, lecturing them as “course participants” for a few hours, or at most days, one may succeed in reassuring oneself, but will accomplish nothing tangible.
The fourth aspect I would like to mention relates to the effect of the practices or attitudes I have described under the first three aspects, namely the triggering of mass migration to Europe. To speak – as did the former Austrian Minister of Interior – of migrants “storming the fortress Europe” seems to me too euphemistic. More precisely, one might say that we are dealing here with a rush to the territory of a group of states (the European Union resp. the Schengen area) that no longer protects its external borders – whether out of principle or pure negligence. In this context, the concern is not anymore about a “fortress” that might be stormed, but about an entity that apparently no longer has the will to protect itself and already shows signs of decay.

Coincidence of events “almost at the push of a button”

Two coincidences meet the eye in this regard: (1) the temporal coincidence – almost at the push of a button – between the drastic reduction in funding for the refugee camps in countries around Syria (in the summer of 2015) and the sudden surge of the number refugees in Europe. (I am speaking here about the camps managed on behalf of the United Nations Refugee Agency UNHCR in the neighbouring countries, notably Jordan. The authorities of that country have provided precise and detailed information on the conditions prevailing in these camps.) (2) The coincidence of the de facto issuing of an invitation by the head of the German government and the drastic increase of the number of migrants (not only from war-torn countries, but from all over the Middle East, Afghanistan, Pakistan and North and Sub-Saharan Africa) towards Europe, which consequently led to an intolerable situation for Hungary and Austria, but also for Macedonia, Serbia, Croatia, and Slovenia – not to mention the country that “issued” the invitation.

Conflicts at the domestic level

As for the medium and long-term consequences, a fifth aspect is also of importance. On the one hand we are talking here about a no longer workable multicultural model of society, the failure of which the German Chancellor had acknowledged, even years before the present wave of mass migration, in a speech to the “Junge Union”, the youth organization of the Christian Democrats (CDU), in October 2010. With her repeated declarations, she nonetheless now massively encourages the stream of migrants into Europe, seriously aggravating the multicultural dilemma she earlier diagnosed. That cultural and religious conflicts are being imported into Europe is just one consequence of this uncontrolled immigration. The continent is now faced with the danger of Huntington’s global “clash of civilizations” becoming a reality also at the domestic level. The fracturing of Europe’s autochthonous societies into ideologically irreconcilable camps is another consequence of this development. A polarisation the intensity of which was unimaginable in the decades since World War II has now become a fact of domestic politics in many member states of the European Union. The management – or lack thereof – of the refugee problem by the European authorities has resulted in an increasing delegitimisation, with the risk of gradual disintegration, of the European Union, whatever one’s personal attitude to this trend may be. The decision of the British people – definitely also influenced by the German Chancellor’s refugee policy – is a clear sign on the wall.

Final considerations

Europe faces political and economic marginalisation

In a wider geopolitical context, these developments (1) seem to condemn Europe to an ever-increasing marginalisation at the global level and (2) mean that nation-states will be preoccupied with themselves for the foreseeable future. Even the threat of internal unrest and civil war can no longer be dismissed. The demographic changes and the resulting growing difficulties in financing the welfare state further mean a weakening of economic competitiveness in the long term. The mantra-like assertion of lofty principles is of no use at all in the face of these challenges, just as it will lead to nothing to repeat a hundred times that there exists no “upper limit” for refugees – which, by the way, is completely misleading.

“Unlike their neighbour on the other side of the Atlantic, the states of Europe, directly affected by the consequences of this development, are destabilising themselves if they put considerations of the moment over reasons of state. They may thus create a situation where the bonum commune Europaeum – the common good of all citizens – and continental peace are at stake. In the name of a misunderstood humanity, they might well bring about their own demise – unless civil society mobilizes its forces and counteracts these policies by democratic means.”

* Hans Köchler has served as Chairman of the Department of Philosophy at the University of Innsbruck (Austria) from 1990 until 2008. Today he is Chairman of the Austrian Arbeitsgemeinschaft für Wissenschaft und Politik, (Working Group for Siences and Poli

Confusing normative and factual aspects destroys the credibility of the principle itself

One must distinguish between an upper limit (a) in the normative and (b) in the factual sense. According to the 1951 Convention, the right to asylum, under the criteria formulated in the Convention, undoubtedly applies to everyone who fulfils these conditions; in regard to the right as such, one cannot exclude anyone. It is also evident, however, that, for instance, the Republic of Austria cannot accommodate, say, two or three billion of the world’s population; or, to demonstrate the dilemma in a more personal context: if someone is determined to help refugees because he considers this as his moral duty, his willingness must extend to all refugees without distinction – just as the commandment of charity basically applies to everyone as addressee. This person must, nonetheless, be honest enough to concede that he cannot accommodate in his home thousands who, having taken note of his moral commitment, might respond to his charity. By confusing the normative and factual aspects, one will ultimately destroy the credibility of the principle itself.

“Unintended” or intended consequences?

Identifying the beneficiaries of the geopolitical developments – the chain of events since the collapse of the bipolar balance of power, which I have described earlier – may give us some clues whether, and to what extent, we are dealing here with “unintended consequences” of otherwise well-intended state action, or whether these events were brought about intentionally and with the full knowledge of the geopolitical actors.
Since the beneficiaries of such a development obviously hide away from the limelight, they can rather easily use the knockout argument of “conspiracy theory” to discredit inquisitive questions. It is my hope, nonetheless, that the critical observer of events will not let himself be intimidated.

Multipolar balance of power as viable alternative

The only hope of a geopolitical reversal will lie in the emergence of a multipolar balance of power at the global level. In the medium term at least, this could become a viable alternative to the current rather unstable unipolar constellation. As matters stand with the European Union at the moment, it is unlikely, however, that this organization will have a part in such a process towards multipolarity.
One should have no illusions. The situation in the Middle East will not stabilize for several decades to come. Looking at the confrontation between Shiites and Sunnis, we are faced with a situation similar to that in the Thirty Years’ War. Western interventions in the region have led to a conflagration that may very well be compared to that European tragedy in the 17th century.
As to the mass migration triggered by these interventions, I am afraid that we may have already reached the point of no return. At this stage, measures taken in the regions of origin to contain, not to speak prevent, the flow of refugees will hardly be successful. In spite of the repeated insistence by Western leaders that the problem must be tackled at the roots, and order and stability must be re-established – in states whose political systems one has effectively destroyed, even the accumulated power and wealth of the West will not be able to accomplish this in the coming decades. As unfortunate as this may be, under the circumstances one must give priority to effective ad hoc measures, i.e. physical precautions for the protection of the borders of Europe.

Protecting borders to protect continental peace

The Europeans, first and foremost their political leaders, would be well advised not to import the conflicts raging in neighbouring regions. The politics of emotion – all too often bordering on mass hysteria – should give way to a politics of reason that is based on rational analysis of the geopolitical consequences of the developments I have described. Hypocritically in the name of democracy and human rights, the Arab world has been plunged into chaos. Unlike their neighbour on the other side of the Atlantic, the states of Europe, directly affected by the consequences of this development, are destabilising themselves if they put considerations of the moment over reasons of state. They may thus create a situation where the bonum commune Europaeum – the common good of all citizens – and continental peace are at stake. In the name of a misunderstood humanity, they might well bring about their own demise – unless civil society mobilizes its forces and counteracts these policies by democratic means.     •

*    Hans Köchler has served as Chairman of the Department of Philosophy at the University of Innsbruck (Austria) from 1990 until 2008. Today he is Chairman of the Austrian Arbeitsgemeinschaft für Wissenschaft und Politik, (Working Group for Siences and Politics), Co-Chairman of the International Academy for Philosophy and president of the International Progress Organization, which he co-founded in 1972. At this point we are only able to emphasize a few aspects of his very rich work. Köchler’s research focuses are among others Legal Philosophy and Political Philosophy, Philosophical Anthropology, in which his research findings in many points do correspondwith the views of the Polish Cardinal Karol Wojtyla, the late Pope John Paul II. Since the early seventies Hans Köchler has been issuing numerous publications, undertaking journeys, delivering speeches and contributions to various international organisations; this way he has been committed to the dialogue of cultures, especially to a dialogue between the West and the Islamic World. In 1987 Professor Köchler along with Nobel Prize winner Seán MacBride launched the «Appeal by Lawyers against Nuclear War». As a result Köchler contributed with his advisory opinion so that the International Court of Justice later declared a potential use of nuclear weapons would be a breach of international law. Time and again Hans Köchler commented on the reform of the United Nations and called for its democratization. He especially commented on the question how international law could be implemented and took a stand against the instrumentalisation of the standards of international law by playing power politics.   

As special envoy appointed by the then UN-Secretary General Kofi Annan to the «Lockerbie Trial» he wrote a critical report which was published as a book entitled «Global Justice or Global Revenge? International Justice at the Crossroads» in 2003. His impression was, that the Lockerbie-Trial was influenced by political guidelines. Therefore he demanded a the strengthening of the seperation of powers and the complete independency of international criminal jurisdiction. The article published here is based on a lecture Hans Köchler has given on invitation of Zeit-Fragen in Sirnach (CH) on 25 July 2016.