The Legality of the Anti-Migrant Actions of the Italian and of the Hungarian Governments: It Is More Than Just Law. The Necessity to Reform Existing Rules

Abstract

This paper discusses the legal basis of those anti-migratory individual actions of certain states of the European Union, specifically Italy and Hungary, which have recently created a challenge to the enforcement of International and European Union legal rules on asylum. On the one side, legal rules are stemming from International Law, the case-law of the European Court of Human Rights, EU Law (i.e. Dublin Regulation) which impose specific duties on those countries where migrants and asylum-seekers first come. On the other side, there are countries (i.e. Italy, Hungary) that are or have been particularly exposed to the inflow of refugees and asylum-seekers. These countries, in these last years, have taken individual initiatives against what their Governments have perceived as a massive inflow of migrants. These initiatives have spurred a debate and have also contributed to EU initiatives and plans related to the reallocation of migrants. This paper, after introducing the International and EU legal rules on the treatment of migrants and asylum-seekers, studies the legal basis for certain individual states' initiatives against massive migration, and the possible consequences of a conflict between the EU/International authorities and those states following restrictive pol-icies against migration. Finally, the paper suggests that the existing international and EU rules on asylum should be reviewed. This would also take into account the constraints that a massive inflow of migrants can create to individual states and would prevent conflicts between anti-migration national Governments and EU/International authorities.