Author: Gianfranco Tamburelli – 26/06/2019
Introduction to Human Rights of Asylum Seekers in Italy and Hungary. Influence of International and EU law on Domestic Actions by Dr Gianfranco Tamburelli – ISGI – CNR – Italy
The Hungarian Academy of Sciences (HAS) and the National Research Council (CNR) of Italy have played a decisive role in the development, and the internationalization of the scientific research of the two countries. In 2015, they stipulated a new Agreement on Scientific Cooperation, followed by an Executive Protocol for the period 2016-2018. In this framework, the Institute for Legal Studies, Center for Social Sciences of the HAS and the Institute for International Legal Studies of the Department of Social Sciences and Humanities, Cultural Heritage, of the CNR, carried out research on a topical issue of great national and international interest, that of the human rights of asylum seekers.
The principal reason at the base of the Joint Project on the human rights of asylum seekers in the two countries was the awareness of the importance of the Italian and Hungarian experiences in dealing with the migration ‘crisis’ affecting Europe in 2015; the theme had occupied the stage of legal and political debate at national and European Union levels. Italy and Hungary are, in fact, border countries of the EU, and the main migratory routes passed through their borders. They were in the forefront of the European response to the mass arrival of asylum seekers, and are a key to understanding the incompleteness of the European framework, and the various attempts to rectify some of its shortcomings.
Facing, to a certain extent, similar difficulties, they reacted in totally opposite ways. Hungary affirmed the prevalence of domestic political interests over possible EU orientation and ruling on migration, and emphasising the principle of sovereignty, refused to be a beneficiary country of ad hoc measures, like Italy and Greece, and strongly opposed the relocation mechanism among Member States activated by the Commission. According to Italy, policies on border checks, asylum and immigration should be governed by the principle of solidarity as stated in Article 80 of the Treaty on the Functioning of the EU, and the fair sharing of responsibility, including its financial implications. This policy has been based on the idea that single states cannot manage modern migration flows, and the most appropriate level for their management is that of the EU. Whenever necessary, the Union should establish appropriate measures to give effect to a common asylum policy.
These different national policies can only in part be explained by the fact that refugees were arriving in Hungary via the mainland while they came to Italy by sea, or that Italy had long been a destination for Mediterranean crossings, while Hungary was a relatively new transitory point of arrival for migration through Balkan routes. The Common European Asylum System (CEAS) had never been exposed to such intensive pressure. The international system of human rights, as well as the Dublin Regulation No. 614 of 26th June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection showed their gaps and ineffectiveness.
Since 2017, migrant and refugee flows have progressively decreased. Issues such as the setting up of sustainable reception systems, the duration of administrative and judicial procedures, the relocation of asylum seekers to other States, and the return of those not qualified for protection, have remained, however, at the core of political and legal discussion (cfr. State of Democracy, Human Rights and Rule of the Law. Report by the Secretary General, Chapter 5, Access to Rights and Integration of Migrants and Refugees, Council of Europe, 2018).
The aim of the Joint Project was therefore to analyse and evaluate the development, following the ‘crisis’ of 2015, of the Italian and Hungarian legislation and practice on migrants and asylum. The exchange of researchers between Budapest and Rome allowed the members of the joint research team to enrich their knowledge about the differing national legal and administrative praxis. From the first lecture held in Rome by Balázs Majtényi on: Civil Solidarity with Refugees: The Case of Hungary (June 2016), to the lectures and work meetings held in Budapest and Rome, to the semi structured interviews with representatives from Italian and Hungarian NGOs active in the field of human rights and refugees, to the international workshops on: Human Rights of Asylum Seekers held in Budapest on 18th April 2018 and in Rome on 23rd May 2018, the Italian – Hungarian team developed a fruitful dialogue, also with other research groups, universities, and public institutions. Some University professors and other scholars were involved in the research.
This book is the principal result of these activities, and finally offers a comparative analysis of the Italian and Hungarian experiences in the framework of the international and EU legal systems, retracing – mainly from a normative point of view, but also considering the political, sociological, and historical aspects – the main lines of debate on the handling of the refugee question in Europe. It contains contributions from experts with different scientific backgrounds and theoretical approaches. The research results, expressing the opinion of the respective Authors, confirm the differing perspective of the scholars involved, and perhaps also the influence on Italian and Hungarian researchers and professionals of the respective social environments, as well as of public authorities and public opinion.
My personal starting point was the opinion that “human rights however fundamental are historical rights and therefore arise from specific conditions characterized by the embattled defence of new freedoms against old powers” (Norberto Bobbio, The Age of Rights, Turin, October 1990, p. XIII). I proposed to adopt a cautious method of interpreting and evaluating current rules and praxis, including national ones, because, considering the political sensitiveness of the issues at stake, a tentative objective interpretation might facilitate an open debate, and help to identify a common ground for decisionmakers.
Other Authors started rather from a natural law approach and, with the same aim of contributing to the broadest possible affirmation of human rights of migrants and asylum seekers, proposed the adoption of criteria of extensive interpretation.
But we all shared a vision according to which the existing international legal framework does not really offer solutions to the hottest current issues; the 1951 UN Convention on the Status of Refugees and its 1967 Protocol, outlining the principle of non-refoulement, have a limited scope; the EU Dublin Regulation is rather obsolete, and EU States Members have neither a common standing nor a medium-long term strategy.
With regard to the international legal framework, various were the analyses and the opinions on, among other things, the EU-Turkey Agreement, the specific obligations of the States at the external borders of the EU, EU and Italian obligations towards migrants whose lives are at risk in the Mediterranean. In particular, on the issues raised by migration flows via sea and agreements aimed at the control of borders, of great interest were the contributions given by Giovanni Salvi on the prosecution of migrant trafficking across the Mediterranean (New Challenges for Prosecution of Migrants Trafficking: from Mare Nostrum to EUNAVFORMED, The Experience of an Italian Prosecution Office), and Antonio Marchesi on the bilateral agreement between Italy and Libya (Preventing the Exercise of the Right of Asylum. The Human Cost of Italy’s Push-back Policy).
With regard to the EU asylum system, it is worth highlighting the thorough research carried out by Andrea Crescenzi on the principle of solidarity (Solidarity as a Guiding Principle of the EU Asylum Policy), and the well-founded theory developed by Tamás Dezső Ziegler on the interaction between the EU legal system and national practices, in particular, the interaction with Hungarian practice (EU Asylum Law: Disintegration and Reverse Spillovers). On the whole, points of weakness and strength of the EU asylum legal system, and the interaction between the EU sector regulations and the Italian and Hungarian practice were extensively analysed. It seems that the work for a reform of the CEAS has advanced, and proposals concerning qualification regulation, reception conditions, the EU Agency for asylum, Eurodac (European dactyloscopy), and the Union resettlement framework have gained some consensus; while other proposals – on the asylum procedure regulation, the reform of the Dublin Regulation, the European border and Coast Guard, the common standards and procedures for returning illegally staying third-country nationals (recast) – still meet serious difficulties.
With regard to Italian legislation on migrants and the right of asylum, Anton Giulio Lana analysed in depth the provisions introduced by the 2017 Decree “Minniti-Orlando” (The Innovations Introduced in the Italian Legislation by the “Minniti-Orlando” Decree Law Containing Urgent Provisions To Accelerate Proceedings Concerning International Protection), and Eugenio Zaniboni assessed and evaluated in an extensive article the legal aspects of the implementation of the EU Reception Directive (Money for Nothing, Pushback ‘for Free’: the (Missed) Implementation of the CEAS and the Lowered Standards of the Asylum Seekers’ Reception in Italy). Further, Rosita Forastiero carried out with a comparative approach a well-structured piece of research on: The Role of the Charter of Fundamental Rights in Protecting the Right of Asylum Seekers and Refugees. Issues concerning the international obligations of Italy, including those arising from the conclusion of new bilateral agreements, and compliance of the domestic law with international and EU law, taking into account administrative practices and jurisprudence, were therefore objects of specific attention.
With regard to the Hungarian legal system, Judit Tóth made an extensive study of the changes to the Refugee Law introduced since 2009 (From the Minimum of Human Rights to the Maximum of National Defence. Transformation of the Asylum Law in Hungary), while Balázs Majtényi carried out a rich and stimulating comparative analysis of the evolution after 2015 of the Hungarian and Italian legal systems in the sector (The Refugee Crisis in 2015 and Its Aftermath: A Comparison of the Hungarian and Italian Responses).
Issues related to rules and actions aimed at checking or ‘closing’ borders (e.g. fences between Hungary and Serbia) were among the focuses of these contributions.
Also very useful for the comprehension of the Hungarian experience, were the studies made by Giulia Perri (The Position of the VISEGRAD Group Countries on the Dublin Regulation), and Gloria Adoni (The Council of State of Italy on Hungary’s Asylum System).
The assessment of the Hungarian domestic asylum policy and legislation seems in line with some worries expressed by the European Parliament, according to which in the country there is a clear risk of a serious breach of the values on which the Union is founded (cfr. Resolution on the Situation in Hungary, 17th May 2017). Not surprisingly, various applications have been submitted to the European Court of Human Rights in the last few years (cfr. Case of Ilias and Ahmed v. Hungary, Application No. 47287/15, Judgement 14th March 2017).
On a more theoretical level, Zsolt Körtvélyesi underlined how essential are the constitutional and administrative changes for interpreting Hungarian legislation and practice in recent years (Hitting the Wall? Contextualizing Hungary’s Response to the Arrival of Asylum-Seekers between 2015 and 2018). Passing to the Italian constitutional framework, I would like to observe that the right to asylum holds a position of particular importance in the Italian Constitution, being established among the first twelve fundamental principles. Article X states that “a foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian constitution shall be entitled to the right of asylum under the conditions established by law”. Even this provision, of undeniable value, which recognizes protection to those who in the country of origin are impeded from participating democratically in decision-making processes, now appears historically dated and not broad enough to face the current nature and dimension of migratory flows.
The comparative analysis of the sector national legislation of each country, and of their relation to European and international law, has highlighted fundamental trends and issues concerning the handling of migration at global level.
In this perspective, I would like to recall that the UN has included the ‘migration’ theme in the 2030 Agenda for Sustainable Development, where States affirm, among other things, that they will cooperate to ensure safe, orderly and regular migration, involving full respect for human rights and the humane treatment of migrants regardless of migration status, of refugees and of displaced persons (Declaration, 29).
Finally, on the issue concerning social rights, and refugee inclusion rights, Giuseppe Palmisano offered a magisterial contribution with his article on: Protecting Social Rights and Social Inclusion of Asylum Seekers in Europe: Shortcomings and Potential of the European Social Charter. The assessment of the state of the art of integration policies at national level was further enriched by the contributions of Attila Szabó (Quo Vadis Integration Policy?) and Francesca Zappacosta (Refugee Integration Policies: A Comparison of the Hungarian and Italian Case).
This collection of articles provides a unique analysis on how mass migration flows challenges basic principles and existing regulations; legislation is continuously evolving and recent changes in the political orientation of the Italian government might imply a rapprochement of the sector policies of Italy and Hungary, and their stronger impact on the EU orientation.
Lastly, it is important to acknowledge the full support the joint research team received from the CNR and the HAS. In this regard, on behalf also of my colleague and friend Balázs Majtényi, who acted as responsible of the Hungarian team, I would like to thank Ornella Ferrajolo and Gárdos-Orosz Fruzsina, directors of the two institutes, as well as Giuseppe Palmisano, former director of the ISGI, for their valuable advice and their contributions. I would also like to acknowledge the assiduous support always received from Virginia Coda Nunziante, Daniela Guidarelli and the International Relations Office of CNR that deals with the development and management of scientific cooperation agreements.
The Authors involved in the Joint Project have formulated and discussed several new project ideas, and received various expressions of interest from experts and representatives of other institutions and research centres. One of the themes identified as being of greatest common interest is that of migratory flows towards the EU and its Member States (in particular, Italy and Hungary) from Eastern Europe (in particular from countries linked to the EU by Association Agreements: Georgia, Moldova and Ukraine). It is therefore my hope that this book will further scientific, legal, and institutional cooperation between Italy and Hungary, the CNR and the HAS.
Gianfranco Tamburelli – Institute for International Legal Studies – National Research Council of Italy
Gianfranco Tamburelli is a senior legal expert with extensive work experience in Italy and in a number of other countries. He is a member of the World Commission on Environmental Law (WCEL) of the IUCN, and CNR representative at EUROPARC. He is also a member of the Academic Advisory Board of the ADAMAS University (Kolkata, India), and of the Institute of Environmental Law and Natural Resources of the National Academy of Social Sciences (Cordoba, Argentina). Since 1996, he has been working at the Institute for International Legal Studies (ISGI) of the National Research Council (CNR) of Italy, where he has been in charge of various research projects. He is a Professor at Taras Shevchenko National University (Kyiv, Ukraine), where in the spring 2019 he was teaching a Course on: “The Role of the European Court of Human Rights in Enforcing Human Rights”. Since 2009, he is also a Professor at the Master on Environmental Law of the Sapienza University of Rome (he was the coordinator of the section on international law from 2011 to 2018). In 2018, he was teaching a Course on: EU Foreign Relations. The Eastern Partnership and the New Association Agreements, at the Eötvös Loránd University (Budapest, Hungary); in 2017 and in 2015 he was teaching a Course on: The EU Foreign Policy: The EaP and the New AA between the EU and Ukraine at Taras Shevchenko University. In 2017 he was a visiting researcher at the Faculty of Law of the University of Regensburg, in 2016 and 2015 a guest scholar at the Institute on East and Southeast European Studies of Regensburg (IOS) (Germany). He worked at the Ministry of Environment of Italy for two years. He held the position of First Deputy Head of the Legislative Office, responsible for the implementation of international and EU acts, and he was legal advisor of the Secretary general of the Ministry. He was a Professor of Environmental Law at Sapienza University (Degree Courses in Environmental Sciences and Natural Sciences) (2001-07), and at the University of L’Aquila (International Degree Course) (2004-06); previously, he was a researcher (international, EU law) at LUISS (International Free University for Social Studies) (1996-2000). His professional experience includes team leadership and capacity building. He participated in the implementation of various international and EU projects, particularly in Albania, Armenia, Azerbaijan, Georgia, and Palestine. In the last few years, he has developed some research on: “Chernobyl: Experience and Perspectives”, and “The Evolution of International Environmental Law”. He has published 10 collective books and about 70 articles. He is a member of the Editorial Board of the Italian Journal “Gazzetta Ambiente”, of the “Administrative Law and Process” Journal of Taras Shevchenko University, of the “Rule of Law State” Journal of the Korestky Institute of State and Law of the National Academy of Science (NAS) of Ukraine.
Human Rights of Asylum Seekers in Italy and Hungary. Influence of International and EU Law on Domestic Actions
Eds.: Majtényi Balázs, Gianfranco Tamburelli
This volume is an outcome of the Project Human Rights of Asylum Seekers in Italy and Hungary – Influence of International and EU Law on Domestic Actions, jointly carried out by the Institute for International Legal Studies (ISGI) of the National Research Council of Italy (CNR) and the Institute for Legal Studies of the Hungarian Academy of Sciences (HAS).
Started in 2016, the Project aimed at analyzing, in comparative perspective, the dynamics of migration law and practice that have developed in Italy and Hungary from the ‘refugee crisis’ of 2015 onwards.
[From the Foreword by Ornella Ferrajolo, Institute for International Legal Studies – National Research Council of Italy]
Publisher: G. Giappichelli Editore
June 2019 – EAN: 9788892119987- ISBN: 8892119982 – Pags: 256