The Ethical Consequences of Criminalizing Solidarity in the EU

Abstract

The aftermath of the European refugee crisis can be said to have sparked a crisis of solidarity. Despite abundant demonstrations of solidarity with refugees and asylum seekers, what many saw as an exercise of their duty to help was made illegal. The critical term that emerged to refer to this conjuncture was “criminalization of solidarity”. In order to include this term in the academic debate, this article starts by disclosing the embedded claims present in its rhetorical usage. The article then scrutinizes the design of the politics of criminalizing solidarity and its consequences. It argues that at least three aspects of the politics of criminalizing solidarity plausibly indicate the possibility that regulating the aid in question will produce and reinforce consequences for the EU that are not only unintended, but also damaging. This is because, first, what I refer to as the blending aspect might spread the perception of illegality among several types of immigrants; second, the moral aspect can discharge people from their duty to help foreigners by conditioning this duty to group membership and belonging; and third, the polarizing aspect might exacerbate the existing divide between citizens and immigrants currently causing conflicts and social fragmentation.

Sanctuary as democratic non-cooperation

“…Federalism as a structure of governance is most likely to be successful, in the sense of more likely to achieve its objectives, where the units in a federal state are bound by what Hugo Cyr describes as a principle of “federal solidarity”, which underpins the collective political project in which the federation as a whole is engaged (Cyr, p. 34). Since there will never be 100% agreement about how to proceed, or what the best interests of the units as a whole are, or even how they are best achieved, the solidarity that Cyr describes undergirds negotiations among the units as well as a commitment to supporting the compromises that result (Elazar 1995, 41; Cyr 2014, 34).…”

“…There is more than one way to resist unjust immigration enforcement, and there is room certainly for civil disobedience and conscientious objection as strategies to do so. Indeed, in the current political context, breaking the law in defense of migrants, especially in the form of protecting space for the good Samaritan actions that are being penalized in the southern US, and in the Mediterranean Sea, (and against the injustice of so many immigration enforcement policies), may well be both defensible and praiseworthy (Duarte 2020).…”

“…The political theory of federalism is rich with distinctions among types of federal structures both formal and informal and their various rationales. In general, federal states are characterized by a formal division of power between the central state and sub-state jurisdictions (Elazar 1995). In the broadest of terms, federal structures are adopted in order to recognize formally the self-determination of sub-state jurisdictions.…”

Moral proximity and the territorial imperative

“…One reason why I think it is important to take seriously the role of citizens in the protection-offering framework is that they are taking this role for themselves in multiple situations, and as moral philosophers we need responses to these actions. Around the world, citizens are coming to the aid of refugees and asylum seekers – in the desert between Mexico and the United States, in the Mediterranean Sea, at the many crossings at which African migrants attempt to gain entry in to Europe; worryingly, their actions are increasingly being criminalised (Duarte, 2020). Although they are scattered throughout Shachar's book and not engaged with in a substantive way, the references to citizen humanitarian efforts provide evidence that there is everywhere strong support for refugees and asylum seekers (for example, Shachar, 2020: 94).…”

Structural Injustice and Labour Migration – From Individual Responsibility to Collective Action

“…In "The Ethical Consequences of Criminalizing Solidarity in the EU" Melina Duarte considers the impact of criminalising aid towards refugees and migrants in the EU (Duarte, 2020). Duarte argues that this can have unintended damaging consequences for the EU, leading to increased polarisation and confusion about who actually counts as illegal, and making it more difficult for citizens to fulfil their moral duties to people in need.…”