30 September 2023
In the introductory part of the speech, the speaker introduced himself, presented his credentials and highlighted that the speech was a dissemination event within the project ‘Migration Challenges – Legal Responses’ headed by prof. Marcin Wielec and carried out within the framework of the Central European Professors’ Network. The logos of the Central European Professors’ Network, as well as the Central European Academy, were clearly visible at all times in the visual presentation.
It was stressed that the topic of migration is highly important from the point of view of not only law, but also economics, sociology and politology. At the same time, it is very controversial and is a subject of a heated debate. Migrations can, of course, be very beneficial from the point of view of both receiving states and the migrants themselves. They can, however, also be a source of significant problems and even dangers. It was stressed that the discussed topic lies in the latter category. It was added that their acuteness is largely determined by the type and the context of a given migration (migrations).
It was stated that coercion is generally understood to refer to the practice of inducing or preventing changes in political behavior through the use of threats, intimidation, or some other form of pressure. Coercive engineered migrations (coercion-driven migrations) are those cross-border population movements that are deliberately created or manipulated in order to induce political, military and economic concessions from a target state or states[1]. By engineered is the therefore meant that the migration is not taking place spontaneously, instead it is orchestrated by a government of a state with an aim of achieving very specific goals by means of coercing a target state. This should be viewed as an extension of the foreign policy of the coercing state.
The following discussed issue was centered on certain historical examples of coercive engineered migrations. These included coercive engineered migrations conducted by Nauru against Australia, Belarus against the European Union, Haiti against the United States, Libya against the European Union as well as Chad against the United Nations Security Council. Eleven examples were shown together with a description of their results (success, failure, partial success, indeterminate) as seen from the point of view of the coercing state. Principal objectives of coercing states were also outlined (obtaining financial aid, obtaining diplomatic recognition, ensuring continued diplomatic support, obtaining military assistance, obtaining political/military intervention, obtaining lifting of sanctions). It was inferred that the problem of coercive engineered migrations does not seem to be limited to a specific geographical area. It was also pointed out that the coercing state may have a reasonable expectation that such actions will result in the desired behavior (behaviors) on the behalf of the targeted state. This seems to be highly problematic as it may encourage orchestrating further coercive engineered migrations and incentivize other states to conduct similar policies.
The speech moved on to the issue of the crisis on the Poland-Belarus border. It was stated that starting in the summer of 2021 and continuing through the fall and winter, Poland together with Lithuania and Latvia experienced a crisis that was precipitated by an influx of migrants, across its border with Belarus. The migrant influx was made possible by the cooperation of Belarusian authorities with airlines and tour agencies[2]. It was added that when considering the crisis on the Poland-Belarus border, it should be noted that, to a significant degree, it was being conducted as a part of broader, hostile policies. It cannot be ruled out that these policies may eventually include a form of military aggression, thus threatening the basic physical security of the inhabitants of targeted states. This is related to the issue of certain dilemmas in the context of coercive engineered migration and safeguarding the rights of the migrants. It is argued that coercive engineered migration situation may amount up to a use of force. Where it does, in order to draw a balance between the state’s rights and the human rights of the asylum seekers, the receiving State should, arguably, be able to derogate from its collective expulsion-related obligations under the ECHR and the EU Fundamental Rights Charter in order to defend itself against the coercive engineered migration situation purposefully created by the coercing State[3].
The issue of legal certainty was then taken up. It was noted that legal certainty is seen formally as a possibility to foresee the effects of one’s behavior[4]. The following elements of legal certainty, in the context of judicial application of the law, were pointed out:
- The predictability of whether a decision will be issued,
- The predictability of the decision’s content,
- Finally, the predictability of the decision’s consequences[5].
It was then stated that the need to ensure a necessary degree of legal certainty is crucial in the context of coercive engineered migration both from the point of view of safeguarding the interests of the migrants and, at the same time, from the point of view of discouraging the coercing states from conducting such policies.
Furthermore, it was stated that there are at least three levels of challenges to legal certainty in regard to the subject matter, that is:
- The effective relation between the law of the European Union and the law of the affected member state (member states). If there exists a significant tension in that respect, it is detrimental to legal certainty.
- Ambiguities in terms of content (application) of the law may also exist within the system of law of a given member state. These ambiguities may be exacerbated by the tensions between EU law and the law of the member state, as well as potential conflicts within the judiciary of a given member state.
- The issues outlined above can be further compounded by significant security threats related to coercive engineered migration, particularly when it is a part of a broader hostile policy.
It was further pointed out that the stance of the representatives of the European Commission, in the context of the crisis on the Poland-Belarus border, caused by coercive engineered migration, was described as being tolerant[6]. It was added that, when taking into consideration the issues outlined in the speech, such attitude of the European Commission seems to be understandable.
The speech then moved on to its conclusion. It was stated that it was an attempt to outline a very deep and complex problem. What deserves particular attention is that coercive engineered migration situation may amount up to a use of force, and the implications of that fact should be taken into consideration while interpreting the law, applying the law as well as determining the content of the relevant legislation.
The audience was invited to acquaint themselves with additional reading available in the description of the video. The speaker thanked for the attention and for having listened to the entirety of the speech. The speech was thus concluded and the list of references[7] appeared on the screen. The final slide contained the names and logos of the supporters: Instytut Wymiaru Sprawiedliwości, Central European Professors’ Network, Central European Academy, Wydział Prawa i Administracji UKSW, Ferenc Mádl Institute of Comparative Law, Scientific Association for Comparative Law Poland as well as Central-European Association for Comparative Law.
Throughout the entirety of the presentation (on each of the slides) the logos of Central European Professors’ Network and Central European Academy were visible.
[1] Source: Greenhill Kelly M., Weapons of Mass Migration: Forced Displacement as an Instrument of Coercion, Strategic Insights, 9, 2010.
[2] Source: Grześkowiak M., The “Guardian of the Treaties” is No More? The European Commission and the 2021 Humanitarian Crisis on Poland–Belarus Border, Refugee Survey Quarterly, 42, 2023.
[3] Source: Huttunen J., Coercive engineered migration and the prevention of entry of asylum seekers – a choice between two evils for the receiving European States, University of Helsinki, 2022.
[4] Source: T. Spyra, Granice wykładni prawa. Znaczenie językowe tekstu prawnego jako granica wykładni, Kraków, 2006. Citation after: M. Wojeciechowski, Pewność prawa, Gdańsk 2014.
[5] Source: J. Wróblewski. See: M. Wojeciechowski, Pewność prawa, Gdańsk 2014.
[6] Source: Grześkowiak M., The “Guardian of the Treaties” is No More? The European Commission and the 2021 Humanitarian Crisis on Poland–Belarus Border, Refugee Survey Quarterly, 42, 2023.
[7] The list of references is as follows: Bekić J., Coercive Engineered Migrations as a Tool of Hybrid Warfare: A Binary Comparison of Two Cases on the External EU Border, Croatian Political Science Review, 59, 2022, pp. 141-169; Greenhill Kelly M., Weapons of Mass Migration: Forced Displacement as an Instrument of Coercion; Strategic Insights, 9, 2010; Greenhill Kelly M., Engineered Migration as a Coercive Instrument: The 1994 Cuban Balseros Crisis, Inter-University Committee on International Migration, 2002; Grześkowiak M., Od aktywizmu do „polityki przyzwolenia”. Komisja Europejska wobec nieregularnej migracji w latach 2015–2021 ze szczególnym uwzględnieniem kryzysu humanitarnego na granicy polsko-białoruskiej, PiP, 3, 2023, pp. 21-47; Grześkowiak M., The “Guardian of the Treaties” is No More? The European Commission and the 2021 Humanitarian Crisis on Poland–Belarus Border”Refugee Survey Quarterly, 42, 2023; Huttunen J., Coercive engineered migration and the prevention of entry of asylum seekers – a choice between two evils for the receiving European States, University of Helsinki, 2022; Marder L., Refugees Are Not Weapons: The “Weapons of Mass Migration” Metaphor and Its Implications, International Studies Review, 20, 2018, pp. 576–588; Miholjcic, N., Migration as an Instrument of Modern Political Warfare: Cases of Turkey, Morocco and Belarus, Jean Monnet Network on EU Law Enforcement Working Paper Series, 12, 2022; Wróblewski J., Wartości a decyzja sądowa, Warszawa 1973, p. 95; Spyra T., Granice wykładni prawa. Znaczenie językowe tekstu prawnego jako granica wykładni, Kraków, 2006, p. 192; Wojeciechowski M., Pewność prawa, Gdańsk 2014, p. 10.
