Lawlessness Law

The British House of Commons this week passed a bill of positively exquisite baseness. The Illegal Migration Bill, when it comes into force, will allow the British government to deport people fleeing from formerly colonised regions, who somehow make it to the territory of the arch-coloniser UK, to another formerly colonised region, without the European Court of Human Rights in Strasbourg being able to get in their way with interim injunctions. The UK is not allowed to do that, and they know it, but they do it anyway, not just because, but out of principle. After all, that’s why they exited the EU and will probably exit the Human Rights Convention, too, if necessary, so that they are able do that. They (or rather the Tory government and their voters) want to be able to do that, and if the law gets in their way, then the law must cease to apply.

Unlike the UK, Greece has not exited anything. Greece is a member of the European Union which, heaven be praised, is founded on the fundamental values of the rule of law and human rights under Article 2 TEU. Greece is also undisputedly a member of the ECHR and as such has just been ordered by the Strasbourg Court to pay €5,000 in damages to a pregnant asylum seeker for the inhumane treatment she received at the reception camp on the Greek island of Samos.

This is actually the first time that the Court of Justice has ruled that the living conditions in the Greek “hotspots” have been in violation with human dignity. The first time? After all these years, all these awful TV stories, all the detailed and painstakingly documented reports by human rights organisations? Yes, apparently it is the first time. It is, if I am not mistaken, the first ever court ruling on this matter. There is nothing at all, it seems, from the courts of the European Union and the member states.

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Inhumane living conditions in the middle of the EU, for years and visible to all who care to look. And not one single court judgement? How can that be?

Yesterday I spoke with the lawyers Philipp Schönberger, Kilian Schavani and Max Maydell, who were involved in the lawsuit in the context of the Refugee Law Clinics in Berlin and Cologne. As far as the merits are concerned, the case was crystal clear, they say. The violation of Article 3 of the ECHR was flawlessly documented. That is why the Court was able to dispose of the case with a bench of three judges only: In terms of merits, this was a “no-brainer”. Before the Court can examine the substance of the case, however, the complaint must be formally admissible, and that was indeed anything but clear. After all, in order to be allowed to knock on Strasbourg’s door, you have to have exhausted the national jurisdiction first. And they had not. How could they? There is no court in Samos. The camp inmates are not allowed to leave the island. No one could tell them what the right legal remedy actually was at all. The few overburdened advocates on Samos had more than enough on their hands with the asylum procedures.

The Strasbourg Court removed that obstacle with the remark that “excessive formalism” was out of place and that it was for the Greek government to explain which legal remedy would have been theoretically and practically available to the complainant. Oh, it didn’t? Well, then the complaint is admissible.

No legal recourse for torture victims in Greece: can this human rights scandal be explained away as yet another folksy example of Mediterranean state dysfunction? We would like that, I am sure. In fact, there is probably a lot more method behind all the chaos than one would like to think. And this method is being devised not so much in Athens but in Brussels.

What is at work here, I suppose, can be described, to quote a recently published, brutally disenchanting paper written by Dimitry Kochenov and Sarah Ganty, as part of EU Lawlessness Law: “a steadily evolving system of conscious legal arrangements purposefully aimed at removing any accountability and or enforceable rights claims from the totality of the liminal context when dealing with the racialised ‘other’ attempting to reach European soil from the former colonies of the EU, or claim EU law rights, once settled in the Union.”

This EU lawlessness law, according to Kochenov/Ganty, is not an accident. The EU is built this way. The lawlessness law is the result of its design as a space in which those who hold union citizenship have all rights and those who do not have virtually none. And this design in turn, as Kochenov/Ganty suppose, has a strong connection to the urge to help the former colonial masters get over the loss of their racist empires by perpetuating the distinction between the entitled coloniser and the disenfranchised colonised.

Kochenov/Ganty highlight three strategies for the use of lawlessness law: informal repatriation and other agreements with mostly formerly colonised third countries, often coupled with development aid and visa facilitation, which have no legal character, are not controlled by any court, and in some cases are not even made public at all. Then there is the uncontrolled and unaccountable spending of huge piles of money to buy the services of third parties for “migration management”, for whose respect of human dignity any responsibility can always and easily be denied when things get ugly. And finally: FRONTEX, the European Border and Coast Guard Agency, present everywhere, liable nowhere and for nothing, the institutionalised diffusion of responsibility. Help from the EU Courts, by the way, is not to be expected, on the contrary: The ECJ with its refusal to exert any control over the EU Turkey Deal can, according to Kochenov/Ganty, be called one of the architects of EU lawlessness law.

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But now, there is a legal recourse to the ECtHR, there is a judgement that gives the people subjected to EU lawlessness law right some access to justice after all. However, the overcrowded violent jungle in Samos which was the basis for the case has ceased to exist in the meantime. Instead, there is a kind of high-security prison to lock people up in, everything clean, everything correct, miles away from anything, so that you don’t have too many NGOs and human-rights lawyers hanging around, and no one can see from the outside what is going on inside. It will be difficult to build another as well-documented case as the one that has just been decided in Strasbourg. And for the press and the NGOs, it’s also become much harder to get attention for their stories, when all you see on the pictures is barbed wire. In fact, there are fewer inmates now. The pushbacks work. They are manifestly illegal, but nobody seems to give a damn about that any more. It’s already difficult enough to access justice when you’ve just been abandoned on the Mediterranean or bludgeoned back into a Belarusian forest. And anyone who undertakes to help the pushback victims in any way runs an enormous risk of being criminalised as a human trafficking accomplice nowadays.

This is how the EU lawlessness law is being refined and tightened, and the Federal German traffic light coalition, as one reads, is eagerly helping tying the knots.

The week on Verfassungsblog

… summarised by PAULA SCHMIETA:

In Russia, history education will henceforth be subjected to the purpose of shaping collective identity through a common prescribed image of history. ANASTASIIA VOROBIOVA examines this Russian “mnemonic constitutionalism” and relates it to the right to education.

The EU Commission is considering investing some 200 billion euros in immobilised Russian assets to use the proceeds for the reconstruction of Ukraine. LORIN WAGNER looks at whether this is a good idea economically, politically and legally.

Five Eastern European countries have unilaterally halted grain imports from Ukraine to protect their domestic farmers. PETER VAN ELSUWEGE considers the permissive reaction of the EU Commission to this blackmail policy of some member states a “dangerous precedent” of realpolitik.

A week ago, the EU Council published a proposal for a regulation on asylum and migration management (AMMR). FELIX PEERBOOM criticises the approach of allowing member states to derogate from asylum law in case of sudden migratory pressure.

Which genes should children never inherit? NIALL COGHLAN examines the EU’s proposal for a regulation on substances of human origin, saying it fails to notice the delicate ethical and political territory into which it treads.

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Am 03.05. findet die nächste Ukraine-Veranstaltung von Dr. Carolyn Moser zum Thema „Die europäische Sicherheitsarchitektur im Lichte neuer geopolitischer Realitäten: Böses Erwachen und notwendiger Wandel“ statt. Der Vortrag skizziert die Kernelemente dieses Wandels und diskutiert insbesondere die Rolle der EU.

Für die Teilnahme in Präsenz im Vortragssaal der WLB ist keine Anmeldung erforderlich. Online können Sie über folgenden Link teilnehmen.

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The rulings of the French Constitutional Council in the context of the controversial pension reform show the “deeply conservative character” of the French Constitution and its guardian, according to THOMAS PERROUD.

Since 2008, nature has been recognised in the Constitution of Ecuador as a subject of special rights. Recently, however, there has been resistance from the ranks of the judiciary. LENA KOEHN & JULIA NASSL take a closer look.

In the face of crashing biodiversity, climate change and the global North aiming at re-dominating nature instead of recalibrating their policies, KATHERINE C. SNOW explains what environmental intelligence is and why we need to collect it.

Does the need for climate protection allow an exception to the debt brake? Joachim Wieland answered this question in the affirmative last week. LENNART LAUDE & NICOLAS HARDING disagree and say climate protection is a permanent task.

Federal Health Minister Karl Lauterbach has presented his plans for cannabis legalisation “light”. Does this mean that the concerns under European law have been dispelled? According to ROBIN HOFMANN, the government is “moving very much on the borderline of what might be legally permissible”.

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That’s it for this week. All the best to you!

And please don’t forget to donate!

Max Steinbeis

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