Why not Activated? The Temporary Protection Directive and the Mystery of Temporary Protection in the European Union

Yıl 2019, Cilt: 7 Sayı: 1, 1 - 18, 27.03.2019

H. Deniz Genç , N. Aslı Şirin Öner

https://doi.org/10.14782/ipsus.539105

Cited By: 11

Öz

Following the conflicts in former Yugoslavia, temporary protection was introduced as a crucial element

of the European Union’s (EU) response to refugee crises. The EU even adopted a directive, the Temporary

Protection Directive, regarding its implementation. However, despite several refugee crises, it was not

activated. Building on a comprehensive analysis of official documents of European institutions and

the available secondary literature, this article investigates the main reasons behind its inactivation. It

reveals that the real concerns of EU Member States lay in the measures promoting a balance of efforts to

provide temporary protection. In other words, Member States’ concerns over responsibility and burden

sharing cast a shadow over temporary protection in the EU. The article concludes that the Directive’s

inactivation indicates a crisis of fundamental principles in European integration.

Keywords: asylum, European Union, refugee crisis, temporary protection, solidarity

Anahtar Kelimeler

asylum , European Union , refugee crisis , temporary protection , solidarity

Kaynakça

• Akkaya, K. (2015) “Why is the Temporary Protection Directive Missing from the European Refugee Crisis Debate?” http://atha.se/blog/why-temporary-protection-directive-missing-european-refugeecrisis- debate (accessed 21 December 2017). Barutciski, M., and A. Suhrke (2001) “Lessons from the Kosovo Refugee Crisis: Innovations in Protection and Burden-Sharing.” Journal of Refugee Studies, 14 (2): 95-134. doi: 10.1093/jrs/14.2.95. Bauböck, R. (2018) “Refugee Protection and Burden Sharing in the European Union.” Journal of Common Market Studies, 56 (1): 141-156. doi: 10.1111/jcms.12638. Charter of Fundamental Rights of the European Union (2000) http://www.europarl.europa.eu/charter/pdf/ text_en.pdf (accessed 09 November 2017). Council of the European Union (2001) “Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.” Journal of the European Communities (6.2.2003), L 212/12-212- 23. Council of the European Union (2003) “Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers.” Journal of the European Communities, (6.2.2003), L 31/18-L 31-25. Dupuis, O. (2001) “Written Question E-2372/01 to the Council.” Official Journal of the European Communities C81/E/164. European Commission (1997) “Proposal to the Council for a Joint Action based on Article K. 3(2) (b) of the Treaty on European Union concerning temporary protection of displaced persons.” COM (97) 93 Final. European Commission (2000) “Proposal for a Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.” Journal of the European Communities, (31.10.2000), C 311 E/251-257. European Commission (2003) Communication from the Commission to the Council and the European Parliament on the common asylum policy and the Agenda for protection, COM (2003) 152 final. European Commission (2005) Communication from the Commission to the Council and the European Parliament: Establishing a framework on Solidarity and the Management of Migration Flows for the period 2007-2013, COM (2005) 123 final. European Commission (2006) Communication from the Commission on Strengthened Practical Cooperation, New Structures, New Approaches: Improving the Quality of Decision Making in the Common European Asylum System, COM (2006) 67 final. European Commission (2008) Commission Staff Working Document accompanying the 25th Annual Report on Monitoring the Application of Community Law, SEC (2008) 2854, Brussels. European Commission (2009) Commission Staff Working Document: Accompanying Document to the Proposal for a Regulation of the European Parliament and of the Council Establishing an European Asylum Support Office, COM (2009) 66 final. European Commission (2011a) Proposal for a Regulation of the European Parliament and of the Council establishing the Asylum and Migration Fund, COM (2011) 751 final. European Commission (2011b) Commission Staff Working Document: 28th Annual Report on Monitoring the Application of EU Law (2010), COM (2011) 193 final. European Commission (2013) Commission Staff Working Document: Climate Change, Environmental Degradation, and Migration, SWD (2013) 138 final. European Commission (2016a) Communication from the Commission to the European Parliament and the Council Towards a Reform of the Common European Asylum System and Enhancing Legal Venues to Europe. COM (2016) 197. European Commission (2016b) Study on the Temporary Protection Directive: Final Report. Brussels: European Commission. European Court of Justice (2004) “Actions brought against Luxembourg Netherlands, French Republic.” Official Journal of the European Union, C 314/7-8. European Court of Justice (2005) “Actions brought against Greece, Belgium, United Kingdom and Ireland.” Official Journal of the European Union, C 6/32 – 36. European Parliament (2001) “Amendment to the Proposal for a Council directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.” (COM (2000) 303 C5-0387/2000 2000/0127(CNS)), Journal of the European Communities, (5.12.2001), C 343/82-89. European Parliament (2012) “European Parliament Resolution of 11 September 2012 on Enhanced intra-EU solidarity in the field of asylum.” Official Journal of the European Union, C 353/16-26. Executive Committee of UNHCR (1979) No. 15 Refugees Without an Asylum Country. Conclusions on the International Protection of Refugees, Session XXX. Executive Committee of UNHCR (1980) No. 19 Temporary Refuge. Conclusions on the International Protection of Refugees, Session XXXI. Executive Committee of UNHCR (1981) No. 22 Protection of Asylum-Seekers in Situations of Large-Scale Influx. Conclusions on the International Protection of Refugees, Session XXXII. Fitzpatrick, J. (2000) “Temporary protection of refugees: elements of a formalized regime.” American Journal of International Law 94(2): 279-306. doi: 10.2307/2555293. Gluns, D., and J. Wessels (2017) “Waste of Paper or Useful Tool?: The Potential of the Temporary Protection Directive in the Current Refugee Crisis.” Refugee Survey Quarterly 36 (2): 57-83. doi: 10.1093/rsq/ hdx001. İneli-Ciğer, M. (2016) “Developing Better Responses to the Asylum Crisis in Europe and Syria Refugee Crisis: What Should be the Role of Temporary Protection?” https://blogs.uta.fi/eura-net/2016/06/03/ developing-better-responses-to-the-asylum-crisis-in-europe-and-syria-refugee-crisis-whatshould- be-the-role-of-temporary-protection/ (accessed 19 August 2017). Joannin, P. (2017) “Dublin and Schengen – Restoring confidence and strengthening solidarity between Member States of the European Union.” Robert Schumann Foundation, European Issue no 434. Joly, D. (1996) Haven or Hell? Asylum Policies and Refugees in Europe. Great Britain: Macmillan Press. Kerber, K. (2002) “The Temporary Protection Directive.” European Journal of Migration and Law (4): 193- 214. doi: 10.1163/157.181.602400287350. Kjaerum, M. (1994) “Temporary Protection in Europe in the 1990s.” International Journal of Refugee Law 6 (3): 444-456. Doi: 10.1093/ijrl/6.3.444. Notarbartolo di Sciara, M. (2016) “Temporary Protection Directive, Dead Letter or Still Option for the Future? An Overview on the Reasons Behind its Lack of Implementation.” Eurojus.it, http://rivista. eurojus.it/temporary-protection-directive-dead-letter-or-still-option-for-the-future-an-overviewon- the-reasons-behind-its-lack-of-implementation/?print=pdf Orchard, C., and A. Miller (2014) Protection in Europe for Refugees from Syria. Oxford: Refugee Studies Center. Parliamentary Assembly, Council of Europe (29 September 2015) Resolution 2073 (2015) Countries of Transit: Meeting New Migration and Asylum Challenges, http://assembly.coe.int/nw/xml/XRef/ Xref-XML2HTML-en.asp?fileid=22175&lang=en (accessed 3 November 2017). Selo Sabic, S. (2017), “The Relocation of Refugees in the European Union: Implementation of Solidarity and Fear”, Friedrich Ebert Stiftung Zagreb, Analysis Steinvorth, U. (2017) ‘Applying the Idea of Solidarity to Europe’, in A. Grimmel and S. Giang (eds.), Solidarity in the European Union: A Fundamental Value Crisis, Hamburg: Springer, 9-19. Tsourdi, E. L., and P. de Bruycker (2015) EU asylum policy: In search of solidarity and access to protection, European University Institute, Migration Policy Center. http://cadmus.eui.eu/bitstream/ handle/1814/35742/MPC_PB_2015_06.pdf?sequence=1&isAllowed=y (accessed 18 August 2017). The Committee of the Regions (2001) ‘Opinion of the Committee of the Regions on the ‘Proposal for a Council Directive on minimum standards for giving temporary protection in the event of mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof ’’, Official Journal of the European Communities, (14.12.2001), C 357/6-10. The Committee of the Regions (2011) “Resolution of the Committee of the Regions on ‘Dealing with the impact and consequences of revolutions in the Mediterranean.” Official Journal of the European Union, C 192/01-03. The Committee of the Regions (2012) “Opinion of the Committee of the Regions on ‘Enhanced intra-EU solidarity in the field of asylum.” Official Journal of the European Union, C 277/12-18. The Economic and Social Committee (2001) “Opinion of the Economic and Social Committee on the ‘Proposal for a Council Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.” Official Journal of the European Communities, (29. 05.2001), C 155/22 – 28. Trakatellis, A. (2003a) “Written Question P-0479/03 to the Council.” Official Journal of the European Communities C222 E/207-208. Trakatellis, A. (2003b) “Written Question E-0481/03 to the Commission.” Official Journal of the European Communities. C11 E/89-C11 E/91. UNHCR (2005) An Introduction to International Protection: Protecting persons of concern to UNHCR, Geneva: Office of the UNHCR. UNHCR (2016) The Situation of Ukrainian Refugees in Poland, https://www.ecoi.net/file_ upload/1930_147.565.7937_57f3cfff4.pdf (accessed 18 August 2017). van Selm-Thorburn, J. (1998) Refugee Protection in Europe: Lessons of the Yugoslav Crisis. The Hague/ Boston/London: Martinus Nijhoff Publishers. van Selm, J. (2015) ‘Temporary Protection: EU had a plan for migrant influx’, EU Observer, https:// euobserver.com/opinion/130678 (accessed 18 August 2017). Yeo, C. (2015) “Is it time to invoke the EU’s Temporary Protection Directive for Syrian refugees?” https:// www.freemovement.org.uk/is-it-time-to-invoke-the-eus-temporary-protection-directive-forsyrian- refugees/ (accessed 18 August 2017)