Migration Research Group Seminar - State Responses to Cross-Border Activism on the Western-Balkans Route to Europe
State Responses to Cross-Border Activism on the Western-Balkans Route to Europe: Between Criminalization and Cooperation
Ever since the beginning of summer 2015, volunteers, human rights activists and humanitarian workers have been vital in providing assistance to refugees entering Europe on the Western Balkans route. The civil society, often composed of independent volunteers organizing themselves in loose networks, has been for months filling the protection gap the states have proven unable or unwilling to cover. State responses towards border activism remained, however, ambiguous, oscillating between cooperation, attempts at accommodation into existing state structures and, at times, also criminalization.
While border activism, let alone refugee activism, is not a new phenomenon, the nature of the events on the Western Balkans route and the magnitude and variety of the civil society responses to it generated new legal issues and, in the perspective of the states, amplified the need for policy response and regulation. Relying on theories of social movements, migrant activism or mobile commons, social sciences appear well-equipped to analyse border activism(s) and look into how states define and, potentially, shrink the operating space for the newly emerging non-state agents. For good reasons, legal scholars and practitioners seem to have focused primarily on issues relating to the criminalization of refugees, leaving persons engaging with refugees out of their scope of attention. Meanwhile, as the criminalisation of assistance en route may have a long-term chilling effect on the civilian response to the “refugee crisis,” such distinction seems no longer desirable.
The thesis attempts at filling the void by looking into human rights obligations of states with regard to newly emerging non-state agents under the framework of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In particular, the thesis is interested in human rights compliance of state responses towards acts amounting to assistance in irregular border crossing. In the context of a humanitarian crisis, are states free to criminalize volunteers assisting refugees to cross the national borders or does international (human rights) law require for humanitarian exceptions from the general criminalization scheme? Consulting international standards laid down in the UN Trafficking Protocol and the UN Smuggling Protocol, the thesis assesses in how far the obligations under ECHR require the states to strike a fair balance between criminalizing and punishing trafficking on one hand and allowing for exceptions in cases of “humanitarian smuggling” on the other.