The criminalization of solidarity in today’s European Union - Reflections and solutions

Quenivet, Noelle; Dadomo, Christian; Tava, Francesco

Abstract

Of all the concepts that are often evoked to tackle issues of political inclusion and exclusion, solidarity is perhaps the most frequently discussed. Although there is no unanimous agreement on a definition of this concept, which is variously referred to as a moral or political ideal, a social practice, a human right, etc., many scholars seem to agree on the worthiness of solidarity and on the fact that it can be conducive enhanced forms of democratisation.

Although this view is largely shared by public opinion, a process of increasing criminalisation of solidarity has been taking hold in recent years. Scholars and activists often speak of “criminalization of solidarity” to describe the reaction of EU member states towards the expression and practice of solidarity by European citizens with migrants. The aim of this paper is to propose a practical and realistic approach to the criminalisation of solidarity by finding within the constitutional framework solidarity-related concepts that negate and/or mitigate the effects of laws that reprimand solidarity practices. To reach this goal, we combine a philosophical inquiry into solidarity (and related concepts) and a legal analysis of the criminalization of solidarity – which will focus on the EU internal borders as sites of contestation.

The paper begins by explaining the criminalization of solidarity, highlighting how EU Member States’ (mis)use of the Facilitation Directive (EU Facilitation Directive 2002) has, in practice, weaponized national law against a vision of a solidarity of a more humanistic nature. The second part, which investigates whether EU or national solutions are the most suitable and practical, concludes that it is the latter. We argue that although it is states that are adopting this anti-solidaristic logic, the opportunity to develop a more solidaristic approach towards migration might, in fact, come from national constitutions. Accordingly, the next section focuses on the principle of fraternity (which we link to solidarity) and how it has been used in the French constitutional context to decriminalise solidarity towards migrants. In the last part, by stressing the link between solidarity and human dignity, we demonstrate how the constitutional principle of human dignity can be used to decriminalise solidarity.

• Presentation Conference Type: Conference Paper (unpublished)
• Conference Name: ECPR Annual Conference
• Start Date: Sep 6, 2023
• End Date: Sep 6, 2023
• Deposit Date: Sep 13, 2023
• Publicly Available Date: Sep 15, 2023
• Keywords: solidarity; migration; EU; constitutions; fraternity; human dignity
• Public URL: https://uwe-repository.worktribe.com/output/11104260