Solidarity and Dublin I: a missed opportunity

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On 15 June 1990, eleven of the twelve Member States of the European Community signed the Dublin Convention, the first binding agreement on asylum between European governments (the twelfth, Denmark, signed it one year later). Dublin defined the criteria that determines responsibility for the examination of asylum applications. It put down in black and white, for the first-time, ideas and principles that are still at the core of the system for allocating asylum seekers in Europe.

On the eve of the 30th anniversary of the Convention, the debate about the system is still open. Conditions have changed, however, with several countries facing crisis situations and demands for greater solidarity among member states ever more urgent.

A reflection on how the issue of solidarity was dealt with at the time of the Convention helps to shed light on recent developments. Burden sharing as part of European integration was not a new concept at the time of the drafting. Why didn’t the Dublin Convention incorporate solidarity principles to a greater degree? How did this short-sightedness contribute to the situation as it stands?

Solidarity and the European asylum field of the 1980s

The principle of solidarity and good neighbourhood connections were recognised by Member States as a guiding line in their relations inside the Community from the beginning of European integration. By the mid 1980s, these principles started to be associated with asylum discussions among the twelve. It became more and more evident how measures implemented in one Member State might have consequences in other Member States. The Dublin Convention negotiations, as well as the conclusions of the European Councils of the time, stressed the relevance of solidarity from this perspective.

Sharing the burden

During the negotiations, some Member States, more burdened than others by asylum applications, brought another dimension of the solidarity principle to the table. Between 1987 and 1989, Germany and, to a lesser extent, Denmark asked to introduce provisions into the Convention that would redistribute the burden of asylum seekers more equally among Member States.

This proposal did not come out of the blue: the same idea was already under discussion in other fora at the time, namely the European Parliament (res A2-227/86) and the Council of Europe (the unadopted agreement on criteria for determining responsibility for asylum applications, conclusions of which were included in the Recommendation 1236 (1994) by the Parliamentary Assembly). At the same time, both the UNHCR and the European Commission stressed the importance of ensuring that some Member States did not become more responsible than others in dealing with asylum applications.

The principle of solidarity in the Dublin convention

Despite the German proposal being consistent with the ongoing debate in other fora, it went unheard in the Dublin discussions. No specific provisions for burden sharing were introduced into the Convention; its text does not even mention the word ‘solidarity’ or ‘burden sharing’. This was due to the urgency posed by the European integration process and to the technocratic and self-referential character of the group negotiating the Convention.

Why it didn’t work

Intergovernmental dynamics played a major role in shelving the German proposal. Some Member States, led by France, were strongly opposed to it. They feared that such a measure would burden their national system and limit their sovereignty in the asylum field. Other states, which were supposed to be the most interested in the German proposal, the so-called ‘First Entry Countries’, gave limited support to Berlin. These countries (namely Italy, Greece and Spain) tried to mitigate the first entry principle with other provisions (such as the duration of stay, see art 6.2 of the Convention). Most of these states were just entry-transit countries, convinced that asylum seekers would not remain in their territory. On the contrary, Germany was an entry-destination country.

Finally, the Italian, Spanish and Greek governments, unlike Germany, did not yet feel a sense of urgency concerning asylum numbers. Hence, they underestimated the relevance of a burden sharing mechanism.

The short-sightedness of the Convention

The lack of a burden sharing mechanism in the Dublin Convention proved to be particularly short-sighted. It encouraged irresponsible behaviour (paradoxical, given the role of Responsibility in the Convention) by entry-transit countries, incentivising lax border controls in the hopes that the entry of asylum seekers into their territory would be difficult to prove (art 6).

The Convention also inadequately predicted how such an issue would become a point of fracture inside the Community in the years that followed, and did nothing to neutralize the problem before it exploded. The resistance to burden sharing during the negotiations shows us how, as early as the 1980s, when asylum seekers were not perceived as an ‘emergency’ by most Member States, the solidarity principle was marginal in the Community exchanges on asylum. However, it was precisely the lack of urgency of the 1980s that might have given Member States the freedom to deal with the issue with less pressure and drama. This could have enhanced the possibilities of establishing fair and sustainable rules according to the solidarity principle, and perhaps relieved the tension that followed. In the end, this was a missed opportunity.

Gaia Lott is a Max Weber Fellow at the European University Institute, affiliated at the History and Civilization Department. Her research interests include History of International Relations, History of European Integration, African History, Asylum Policies and Policies to contrast Human Trafficking. She has published articles in international journals such as African Affairs, Cold War History and Revue International des études du developpement.