ALLE FRONTIERE DELL’UNIONE, TRA CAVALLI DI FRISIA E RESPINGIMENTI A CATENA: EUROPA O ...MEDUSA?

Member States of the EU revert more and more frequently to the physical foreclosure of their external borders and to a muscular policy towards third country nationals crossing them. Pushbacks performed against third countries’ nationals, without any formal guarantee, are also an established practice in several member States, including at their internal borders. Such pushbacks are frequently performed in a chain starting at an internal border and ending outside the Union. In the face of this reality, which is documented at the international, Council of Europe and EU levels, what guarantees are offered by regional international and EU legal instruments? The study looks first at Art. 4 of Protocol n. 4 to the European Convention, and shows what seems to be a ...rise and fall of the prohibition of collective expulsions in that system. Furthermore, the EU legal system reaction to such practices is analysed, with mixed results. On one side, there seems to be no real place, so far, for Art. 19.1 Charter, with its prohibition of collective expulsions. On the other side, legislative provisions concerning both asylum applications, and the return of illegally staying third country nationals, are interpreted by the ECJ in way that is not giving a blank cheque to Member States and result in a guarantee of individualized procedures. This result, is argued, is not only warranted by a strict interpretation of the exception of public order and security, and by the need to preserve the effectiveness of the right to asylum, but should moreover be firmly anchored in the so far neglected provision of Art. 19.1 Charter. At the EU level, still, the degree of effectiveness of such provisions is really tenuous, due to structural deficiencies and to the inherent malice of the relevant State practices. The risk is there, the study contends, for the nature of the European integration process to evolve from one adding collective wealth to its members, without diminishing the position of non-members, but indirectly offering them a path to development, to one that closes in on itself, oblivious both of the fact that the origins of its prosperity lie, in no small part, in the exploitation of the wealth of the countries from which those migrants come, and of the increasingly evident link between our prosperity and the climatic disruptions that, in those same countries, deprive millions of people of any hope of decent life. A metamorphosis can be seen, so the provocative suggestion, even in the mythological references of such a process. The Union seems no longer to be inspired by the myth of Europa, to become the place where the children of the beautiful Phoenician princess raped by Jupiter live in peace, symbolising, as it were, the common, peaceful and prosperous future of the union between peoples who had known the destructive violence generated by the thirst for domination. Rather, the Union seems to have changed into a creature deprived of a human head - a true federal democracy - capable of guiding its project, which is left at the mercy of the capricious snakes that fill its head, like Medusa’s: the selfishness and nationalisms of the States that, exploiting the role they have in defining the Union's political choices, make it assume horrific traits, designed to keep out those who approach its external borders.