Hungary at the heart of an European identity crisis: the conflict of “liberal” and “realist” views on coordinating asylum policy and burden-sharing

This essay was Highly Commended in the Global Undergraduate Awards 2019.

Hungary at the heart of an European identity crisis: the conflict of “liberal” and “realist” views on coordinating asylum policy and burden-sharing

Since the summer of 2015, Europe has seen a large influx of asylum seekers primarily from war-torn areas in the Middle East and Africa. The European Union has failed to reach a consensus on how to respond to this issue, effectively splitting into several subgroups promoting different policies. Most Western European countries wish to preserve the free movement of people as per the Schengen agreement, enabled by a coordinated policy of migrant quotas allocated for each member country. However, a group of countries including the Visegrád four[1] reject the idea of coordinating European asylum policy; Hungary in particular has been vehement in its defiance of a common European response. In response to the ‘refugee crisis’, Hungary has adopted a hardline policy of deterring asylum seekers in Hungary by erecting both legal and physical barriers. These policies are a source of ongoing tension between Hungary and the other EU actors pushing for more cooperation and open borders, most visibly represented by Germany. This tension highlights a larger crisis of trust between member states, and as such it is proving extremely difficult to resolve. There are several possible trajectories this could lead to in the future development of the European Union, three of which will be explored in this essay: the disintegration of the Union; the transformation of the Schengen area into a smaller group of more cooperative states; and the recovery of the Schengen area and trust between the conflicting groups.

Over the course of 2015, the debate surrounding asylum seekers quickly became highly politicised across Europe. The way in which migration is framed has become a point of contention between advocates of both ‘liberalism’ and ‘realism’ in the European Union[2]  Liberals, most notably Germany, frame the issue in the language of humanitarianism and human rights, emphasising the importance of free movement and protecting refugees, whereas realists, including Hungary, portray it as a security threat. Maricut[3] argues that the framework of political discussion can directly influence the policy outcomes; hence it is important to critically analyse the different narratives which have been used by politicians and the media concerning the ‘refugee crisis’. Representations matter; Castaneda and Holmes[4] have analysed the media response to the crisis in terms of a Gramscian ‘war of position’ between the ‘deserving’ and ‘undeserving’, ‘solidarity’ and ‘threat’, and indeed, whether the asylum seekers are to be called ‘refugees’ or ‘migrants’. The rhetoric used by political actors becomes a policy narrative, which usually both identifies a specific problem and contains a proposed resolution to it. Therefore, these narratives are functional instruments in themselves[5]. Ceyhan and Tsoukala[6] argue that ‘securitarian discourses’, which construct migrants as an existential threat to the nation-state, have become dominant in contemporary Western immigration policies. Hungary has been particularly keen to embrace the security narrative, in which the asylum seekers present a threat to national security and hence a ‘problem’ to be dealt with. The language of human rights has no place in this narrative. Haraszti[7] argues that Orbán’s reasons for adopting the security narrative are primarily political, intended to boost his domestic popularity and give him ammunition in his ongoing conflict with the ‘liberal’ faction of the EU. Hungary’s hardline security response to the ‘refugee crisis’ has greatly exacerbated the country’s already existing conflict with the EU.

The Hungarian policy responses to the ‘refugee crisis’ have been heavily criticised in the European Union for being incompatible with its directives and violating human rights, yet the actual policy response has been inefficient. Acting in line with its security agenda, Hungary has installed both legal and physical barriers to gaining asylum[8]. In December 2015, the European Commission opened infringement procedures against Hungary concerning its asylum law, which was found to be incompatible with EU law[9]. However, Hungary has declined to converge its policy with EU law; if anything, its response to the crisis has toughened since 2015. In early March 2017, the Hungarian government voted to introduce a highly controversial measure of forcing all asylum seekers into detention camps[10]. Unsurprisingly, Orbán once again employed the security narrative to justify the measure, claiming that “migration is a Trojan horse for terrorism.” The criticism Hungary has faced for its asylum policies has been vehement, with Luxembourg’s foreign minister Asselbourg claiming Hungary is treating refugees ‘almost worse than wild animals’ and, controversially, stating that it should be suspended from the European Union for misconduct[11]. Suspension of a member state could indeed be one extreme way of responding to continuous disrespect of EU laws and values; but the requirement of an unanimous vote practically renders it impossible to implement such a measure. This demonstrates the central dilemma in human rights implementation worldwide: in the absence of an authority above the state level, there are few effective mechanisms for enforcing human rights law. In the modern system of sovereign nations, states may be the only parties with the sufficient power to protect human rights, but they are also the parties most commonly violating those very same rights. However, that is not to say that international pressure has no impact on state-level implementation of human rights. The effectiveness of international pressure on HRI depends on multiple factors, including the level of economic dependency between the states concerned (which, in terms of EU members, is bound to be relatively high). In the case of the EU, the problem is not necessarily that it lacks effective mechanisms for coercion, but rather that it has been paralysed by an ‘identity crisis’ it finds itself in regarding uncooperative member states like Hungary.

Hungary’s conflict with the wider European Union concerns not only the refugee crisis, but also the larger issue of the country’s increasingly ‘illiberal’ regime type. Hungary has been at crossroads with the wider European Union since 2010, when the right-wing, anti-immigration Fidesz party came to dominate the government. Since its rise to power, the Fidesz government has amended the Constitution so as to gain more control over the media and the judicial system; this is in line with Orbán’s proclaimed desire to establish an ‘illiberal’ regime in Hungary[12]. Such a regime type directly clashes against the democratic values embedded in Article 2 of the TEU[13][14]. Indeed, the TEU explicitly commits the EU to protecting human rights, providing grounds to the argument that Hungary is acting in direct violation of the constitution. Despite facing strong criticism, however, the Hungarian government has no plans to either exit the EU or change its policies regarding refugees. Rather, Orbán is hoping to change the Union from within. This has significant implications for the future of the EU, as it will have to make a choice on how to respond to the challenge posed by Hungary and possibly other ‘illiberal’ member states. As the European Union remains at its core an intergovernmental organisation recognising the national sovereignty of its member states, it would be highly controversial to intervene in domestic constitution-making; but allowing an ‘illiberal’ state to flourish as a member is corroding its credibility as a democratic organisation. Despite the increasingly aggressive campaigns of ‘illiberalism’ waged by member states like Hungary and Poland, it is extremely unlikely that they will actually gain enough support to be able to change the TEU or other fundamental legal documents of the EU in accordance with their views. In other words, this is not a battle that will be decisively “won” by them; rather, they are continuously obstructing decision-making in the Union, effectively making this a strategy of attrition without a foreseeable conclusion - as long as the EU allows this obstruction to go on. However, the EU is not as lacking in capability to intervene as it may appear; it has been paralysed by political considerations rather than incompetence. Legal scholars have suggested several mechanisms the EU could use to legally apply more pressure on the Hungarian government, including the suspension of EU funds[15] and the aforementioned suspension of membership rights in EU institutions[16]. Whether or not the Union will choose to remain a passive spectator to Hungary’s assault on its core values has deep implications on its future trajectory.

Because of this political conflict, it has proved impossible to establish a coordinated European response to the refugee crisis. Hungary has been particularly vehement in its rejection of the cooperative policies proposed by Germany and other Western European countries, such as the ‘responsibility-sharing’ plan meant to relocate refugees more fairly across member states. According to the 1990 Dublin Convention, persons seeking asylum in the Schengen area should, in principle, submit their application to their country of first entry. However, the unprecedentedly high volume of asylum seekers arriving in the Schengen area in 2015 made this convention seem inadequate, as the border states, such as Hungary and Greece, faced a much higher volume of asylum applications. To address this asymmetry, the European Commission proposed a plan to relocate asylum seekers according to refugee quotas allocated to each member state. This scheme was meant to have both practical and political value, easing the infrastructural strain of the border countries as well as cementing European solidarity on the issue. However, a group of countries spearheaded by Hungary rejected the policy on the grounds that accepting refugee quotas would erode their national sovereignty. In the end, the Council was only able to decide on the scheme by outvoting the Visegrad group, which presented a deviance from the usual norm of unanimity and, therefore, highlighted the damaging effect of Hungary and other ‘obstructive’ members on the unity of the EU[17].

That Hungary refuses to converge its asylum policy with the wider European Union comes as no surprise in the context of its domestic political landscape. The important question is which path will the European Union take from the difficult position it finds itself in. The European Union is currently struggling with a crisis of trust between member states, and this lack of faith, crystallised in ongoing disputes about asylum policy, is what will have the most significant impact on the European project as a whole. At least three different trajectories can be hypothesised from the current situation: the disintegration, reformation, or recovery of the Union.

The first alternative is the disintegration or at least ‘loosening’ of the Union, with solidarity among member states declining[18]. Member states will give up trying to coordinate refugee policy, resorting to individual national policies and closed borders instead. Ending the Schengen agreement and the free movement of people would have devastating implications on any notion of European solidarity. From a human rights perspective, it would also signal an unsatisfying end to the era of robustly coordinated rights of movement and labour currently enjoyed by European citizens. This is the option pursued by Hungary and other countries which push for strengthened national sovereignty. The Union’s permissive response to Hungary’s ongoing treaty violations makes this option seem more likely, as the disrespect of agreed decisions might spread to other policy areas and have a negative impact on the perceived legitimacy of EU policies, laws and institutions as a whole[19].

The second alternative is the reformation of the Schengen area into a smaller and more integrated zone comprised by countries which remain committed to the principle of free movement. It has been proposed by Dutch finance minister Dijsselbloem[20], although no steps have been taken to actually implement such a reform. However, if the current rift among member states cannot be resolved, some form of restructuring might be the most practical way to salvage the Union. This could take the form of a smaller border-free zone within a wider European Union, or more extremely, the removal of ‘obstructive’ member states from the Union. There are traces of this line of argument in Asselbourg’s proposal to suspend Hungary from the EU. Ever since the eastward expansion of the Union, and the emergence of the ‘obstructive bloc’, such a scenario has seemed more and more likely. There are those who believe it has proved impossible to reconcile the differing views of the old and new member states; and that consequently it would be reasonable to end this infeasible project and start anew with only countries that are committed to the ideals embedded in the treaties. So far, there have been ‘very exploratory talks’ on creating a ‘mini-Schengen’ among five states: Germany, Austria, Belgium, the Netherlands and Luxembourg; but no formal proposals have been made[21]. Lehne[22] argues that were such an arrangement to come into being, it would likely cause resentment and fragmentation across the continent at first; but in the longer term, it might result in a new ‘equilibrium’ being found.

The third, and perhaps most unlikely, alternative is the recovery of trust between member states and the re-establishment of full Schengen. Lehne[23] suggests that a fair burden-sharing agreement would be the most likely way of restoring trust between member states, but the realisation of this is improbable because of the continued opposition of some member states, particularly Hungary. Furthermore, considering Hungary’s domestic political landscape, it is likely that the country will either remain at a similar hardline position or continue to move even further into the Eurosceptic far-right end of the spectrum. In the run-up to the 2018 general elections, the most significant opposition to Fidesz came from the more hardline Jobbik party. However, in order to counteract Jobbik, Fidesz moved further into the right, effectively rendering the opposition redundant. In fact, Jobbik ended up trying to rebrand itself as more centrist, and some observers even suggested a coalition between Jobbik and the liberal democratic opposition may be the best way to “break Orbán stranglehold on Hungary’s dying liberal democracy”[24]. Nevertheless, what ended up happening in the 2018 elections was the worst-case scenario for human rights and liberal democracy: Orbán won by a landslide, cementing the legitimacy for his ‘illiberal’ project, while Jobbik leader Vona Gabor resigned from parliament. Orbán’s consecutive win will likely further exacerbate Hungary’s conflict with the wider European Union. Orbán is not backing down on his views; after the election, Fidesz suggested it will seek to implement a crackdown on organizations that promote migrants, a project that will surely cause more tension with the EU. According to a news article following the elections this April, analysts at Eurasia Group believed Orbán’s win further deteriorated the state of democracy in Hungary:  “He will face no checks and balances, even within his party”[25]. Moreover, Orbán’s win will bolster similarly ‘illiberal’ parties across the EU, most significantly Poland’s Law and Justice party, which has closely followed Fidesz’s trajectory as an Eurosceptic party hostile to the language of liberalism and human rights[26].

In conclusion, the refugee crisis has highlighted growing tensions within the European Union, essentially causing a schism between the ‘liberals’, represented by Germany, and the ‘realists’, represented by Hungary. The Fidesz government has embraced a security narrative regarding the asylum seekers, facilitating the implementation of hardline policies such as border fences and containment camps. Hungary has been very critical of the Schengen agreement and the policy proposed by Germany and other West European countries; it has responded by simply refusing to converge its policies. Orbán has been vocal in his rejection of EU values and his project of creating an ‘illiberal’ regime within the Union. The EU institutions have struggled to respond to this challenge, although they have the legal capability to apply more pressure. There are legal grounds to take assertive action against Hungary, possibly even suspending its membership rights; unless such action is taken, the Union is effectively permitting a member state to make a mockery of its values. This is, essentially, an identity crisis for the Union. Rather than losing its democratic and humane core values, it should strive to reinforce them with the legal capacity it possesses. The Union is currently at a crossroads, with the key question being whether this crisis of trust will lead to fragmentation, restructuring, or a recovery of trust. Hungary is a key actor in this scenario, as it remains the Union’s most vehement antagonist.

Footnotes

[1] The Czech Republic, Hungary, Poland and Slovakia

[2] Sandra Lavenex, “Migration and the EU's new eastern border: between realism and liberalism.” Journal of European Public Policy, 8(1), (2001)

[3] Adina Maricut, “Different narratives, one area without internal frontiers: why EU institutions cannot agree on the refugee crisis”. National Identities (2017)  

[4] Heide Castaneda and Seth M. Holmes, “Representing the “European refugee crisis” in Germany and beyond: Deservingness and difference, life and death.” American Ethnologist, 43(1), (2016)

[5] Maricut, 2017

[6] A. Ceyhan and A. Tsoukala, “The Securitization of Migration in Western Societies: Ambivalent Discourses and Policies”, Alternatives 27 (2002)

[7] Miklós Haraszti, “Behind Viktor Orbán's War on Refugees in Hungary”, New Perspectives Quarterly, 32 (2015)

[8] Synnove K. N. Bendixsen, “The refugee crisis: destabilizing and restabilizing European borders”, History and Anthropology, 27(5) (2016)

[9] EC: “Commission opens infringement procedure against Hungary concerning its asylum law.” (2015) 

[10] Patrick Wintour, “​Hungary to detain all asylum seekers in container camps”, the Guardian, March 7, 2017

[11] Christoph Schiltz, “Jean Asselborn fordert Ausschluss Ungarns aus der EU”, Die Welt, September 13, 2016

[12] Simon Zoltan, “Orban Says He Seeks to End Liberal Democracy in Hungary”,  Bloomberg, July 28, 2014

[13] The 1992 Treaty on European Union, which, in combination with the 1957 Treaty of Rome, forms the constitutional basis of the EU

[14] Bojan, Bugaric, “Protecting Democracy and the Rule of Law in the European Union: The Hungarian Challenge”, LSE 'Europe in Question', LEQS Paper No. 79, July 2014

[15] Kim Lane Scheppele, “Making Infringement Procedures More Effective: A Comment on Commission v. Hungary“, Case C-288/12, 8 April 2014

[16] M. Blauberger and R. Kelemen, “Can courts rescue national democracy? Judicial safeguards against democratic backsliding in the EU”, Journal of European Public Policy, 24(3) (2016)

[17] Florian Trauner, “Asylum policy: the EU’s ‘crises’ and the looming policy regime failure”, Journal of European Integration, 38(3) (2016), p. 320

[18] Stefan Lehne, “How the Refugee Crisis Will Reshape the EU”, Carnegie Europe (2016)

[19] Lehne, “How the Refugee Crisis Will Reshape the EU”, Carnegie Europe (2016)

[20] Thomas Escritt, “Dijsselbloem - Refugee crisis could trigger 'mini-Schengen'”, Reuters, 27 November, 2015

[21]  Hans von der Burchard, “Five nations consider mini-Schengen”, Politico, 19 November 2015

[22] “How the Refugee Crisis Will Reshape the EU” (2016)

[23] Ibid

[24] Cas Mudde, ” To save Hungary's liberal democracy, centrists must work with the far right”, The Guardian, 28 March 2018

[25] Gergely Szakacs and Marton Dunai, “Hungary:  “He will face no checks and balances, even within his party”, Reuters, April 10, 2018

[26] Aleks Szczerbiak, An anti-establishment backlash that shook up the party system? The October 2015 Polish parliamentary election”, European Politics and Society, 18:4, 404-427 (2017) 

 

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