Last month, the European Parliament narrowly voted to pass a landmark raft of legislation called the New Pact on Migration and Asylum. The Pact comprises five regulations to manage the movement of people, especially asylum seekers, into the European Union (EU).

In a post on X (formerly Twitter), President of the European Parliament Roberta Metsola heralded the passage of the Pact as a balance between “solidarity and responsibility.” But what does this mean, and how does the Pact do this?

Solidarity refers to cooperation among EU member states. It typically relates to resource sharing, which is based on reciprocity and mutual self-interest. In the context of migration and asylum, solidarity means providing funds to EU members to support resources for asylum seekers as well as sharing the administrative load for large numbers of asylum claims.

In the context of migration and asylum, responsibility refers to the humanitarian and legal obligations of states to provide international humanitarian protection. This is particularly true under the Universal Declaration of Human Rights, which states that everyone has a right to seek and enjoy asylum, and under the 1951 Refugee Convention, which details where and when asylum must be provided by states. Earlier EU regulations and directives in the Common European Asylum System also detail obligations of member states to provide humanitarian protection.

The central tension in asylum governance is between humanitarian protection and sovereignty. Sovereignty, or the claim to exclusive power within a given territory, relies on the ability of the government to control who crosses into its territory and accesses protection and resources. International humanitarian protection challenges this claim because, in certain circumstances, all people have the right to cross into a territory and apply for protection and associated resources from the government.

Since governments are obliged to provide international humanitarian protection, they must find a way to do so which does not stop them from being able to discharge their obligations associated with sovereignty. States thus seek to strike a balance between sovereignty and responsibility in which obligations are fulfilled as much as possible, but with the understanding that concessions in either obligation are likely necessary.

In the case of a multi-level governance system such as the EU, state responsibilities in asylum governance become complicated by member state responsibilities towards each other. These mutual, inter-state responsibilities stem from an obligation to maintain the legitimacy and cohesion of the EU. Member states must not only maintain their own sovereignty but must also work in solidarity to support other member states in maintaining their own sovereignty while fulfilling their own obligations.

Within the multi-level system of the EU, striking a balance between sovereignty and humanitarian protection relies on finding a balance between solidarity and responsibility. This means pursuing policies and developing policy instruments which fulfil as many solidarity and responsibility obligations as possible, with the recognition that neither type of obligation will be fully fulfilled. The trick is not to compromise on the most important aspects of the obligations. It is here that the New Pact falls short.

The uneasy balance between solidarity and responsibility in the Pact

The balance struck between solidarity and responsibility in the Pact is an uneasy one at best. In some areas, the fulfilment of solidarity and responsibility obligations appear to balance. For example, the Asylum and Migration Management Regulation details methods for states to contribute to “mandatory solidarity” in migration management. This regulation has the potential to ensure greater member state engagement in humanitarian protection. However, given the failures of the 2016 quota-based refugee resettlement scheme, and previous problems with implementing the Dublin Regulation, the balancing power of the mechanism will lie in the willingness of EU states to fully implement the law.

Despite balance in some areas of the Pact, other areas tip the balance away from the EU’s humanitarian responsibilities. In a 2022 report, I argued that the Screening Regulation in the Pact uses the fiction of non-entry to curtail asylum seeker rights for the purposes of efficiency in asylum application processing. To increase control at the borders, the Screening Regulation creates a secondary screening process that challenges the fundamental right of all people to seek asylum in a third country.

Similarly, the amended Asylum Procedures Regulation (APR) in the Pact creates a fast-tracked border procedure for target migrant groups that allows for migrants to be detained in EU border facilities. As I argued in a 2019 article, such group-based asylum seeker processing procedures threaten individual human rights.

Both the Screening Regulation and the APR demonstrate how EU states have opted to prioritise fulfilling their solidarity and sovereignty obligations at the expense of their humanitarian responsibilities.

Dr Kelly Soderstrom is an academic at The University of Melbourne, where she also completed her PhD in the School of Social and Political Sciences in 2022. Her current research explores the pragmatic and normative dimensions of German and EU asylum policy development in response to crisis, and the intersection of asylum governance and the private sector.

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