Gerald Knaus is a social scientist and chairman of the European Stability Initiative. An expert on asylum and migration policy, he has been one of the most influential voices in reshaping Europe's refugee system since the 2015 crisis.
In this week’s conversation, Gerald Knaus and Yascha Mounk discuss the history of asylum; how to develop a more humane system of migration; and how the European Union can fight democratic backsliding in its member states.
This transcript has been condensed and lightly edited for clarity.
Yascha Mounk: One of the topics on which your work is most well known is migration, and the problem of asylum in particular. As I see it, a challenge to the asylum system is that it was designed initially for relatively small numbers of political refugees, and now the mechanism is often used by a much larger number of desperate people who are coming to affluent countries and making claims for humanitarian asylum. But they also often create political situations which are quite dangerous in those countries, because accepting these claims often leads to the rise of populists and extremists within them.
How do you see the nature and the problem of migration, particularly of refugees, at this moment?
Knaus: Let me start with the origin of the system we have today. It really comes down to, I think, one key word in the UN Refugee Convention: “non-refoulement,” which means “no push backs,” and comes out of the question around the Second World War, and during the immediate postwar crisis, of what states are allowed to do at their borders when desperate people are trying to flee a desperate situation. I wrote a book last year where I started, for that reason, with the Swiss border to the Third Reich. Because the real background to the non-refoulement principle was the experience of Switzerland sending back at least 25,000 German Jews to the Third Reich.
And the policy of Switzerland at that time, which was one of the few remaining democracies, was: “We don't want irregular arrivals of refugees.” Their policy was to push them back. They succeeded with very limited technical means. You can't be more desperate than a Viennese Jew in 1939, or a Berlin Jew in 1940. And yet, Switzerland closed its borders with brutality. After the Second World War, the question then became, “Is this going to be the policy that continues?” and when diplomats met in Geneva in 1951, and drew up the Refugee Convention, they explicitly said, “If you have a justified fear of persecution, because of your race, religion, political conviction, and a range of other reasons, you cannot be pushed back.” That was the core idea.
It wasn't supposed to be discretionary. It was objectively determined by whether you faced a justified fear of persecution. That is a radical idea, and it was embraced in 1951. Initially, it was just for Europe, and then it was expanded to the rest of the world. And now the non-refoulement principle is no longer just in the Refugee Convention. The Convention Against Torture is accepted by almost every country in the world and has the same principle, even stronger: You can't push people into countries where they face inhuman treatment or torture. But of course, the key problem at the moment is that most borders in the world are policed with brutality. People can't cross borders, and push-backs are on the verge of becoming accepted in much of the world, even in Europe and America.
The theory of returning people when you can verify that they are safe, or returning them to another country where they can have protection—that is not against the Refugee Convention, although a lot of refugee advocates and a lot of NGOs attack this. They say this shows a lack of solidarity, and that rich countries shouldn't push people to other countries. I think it's more complicated than that. 100,000 people cross the Mediterranean to Europe each year, a lot less than crossed the Mexican border to the US. But it is still the deadliest border in the world because so many people drown. So, if you could find ways to reduce irregular rivals by cooperating with neighboring countries, without exposing people to danger, that can be not only an effective way of reducing irregular migration and saving lives, but also a moral policy—as long as you actually ensure that when you return people, they will be safe.
This has just one big problem: it requires diplomacy. And it requires partners and third countries that cooperate. But I'm convinced it's the only way that you can have humane control of borders in a way that majorities in democracies will support in the long term.
Mounk: So, there is the refugee convention, which rightly holds that when people are in danger of their lives because they’re persecuted, they shouldn't be sent back. One of the limitations of that is that if you reach that country from another country that is safe—if you are from Haiti, and you're really in danger in Haiti, but you reach the United States via Canada—then in principle, it should be allowed for the United States to send you back to Canada.
Another element, I think, is when you get something like what the United States faces at its southern border, and what Europe faces at its various perimeters. A lot of people who have very understandable and genuine reasons to want to leave their countries—people facing real economic hardships or terrible dictatorships—start to use the machinery of asylum, even though they don't technically qualify. When there's large numbers of people who fall into that category, that then overwhelms the system, and it makes it very difficult to determine who has a rightful entitlement to use the Geneva Convention.
Tell us a little bit about how that created something like the situation in Europe in 2015, and how that plays into something like what we're seeing at the southern border of the United States today.
Knaus: Let me start with a few surprising facts, which most people who follow this debate don't know. The number of people who cross borders irregularly, to Europe or elsewhere in the world, is actually much lower than people think. In the last four years, the number of people who crossed from all of Africa and Middle East, Turkey, Libya, Morocco, Tunisia, to the European Union was around 100,000 a year. And of those, the biggest group has been Tunisians, people from Bangladesh, people from North Africa, Morocco, Algeria, Egypt—very few of whom will qualify for protection as refugees. In Europe, as in America, in recent years, this irregular migration is seen as a loss of control. You want to stop it.
Then there is strong pressure not to allow this loss of control. There's a myth that if 100,000 come one year, a million will come next year. And then the next year, 5 million. You have a rhetoric, including from some international organizations, that says that tens of millions of people are on the road around the world, as migrants, or as refugees trying to get to rich countries. In reality, the numbers crossing from Africa to Europe in the last 20 years were, on average, a few tens-of-thousands a year. And the Syrian refugee crisis was a complete and utter exception.
Mounk: That's fascinating context, but I fear that it slightly buries the worrying headline, which is that one of the things that was remarkable about 2015 was not just the absolutely terrible civil war in Syria—it was that there weren't any borders put in place, and therefore, a lot of deeply desperate people took that opportunity to try to come to Europe.
When you're saying that today, there's 30,000 or so per year in the world, isn't that precisely because somewhere, someone is using extreme cruelty to keep those numbers down? Doesn't this whole system hinge on the presence of some coercive force in very brutal ways making sure that, of the many more people in the world who desperately want to be in Europe or the United States, only a small trickle are able to get there?
Knaus: Well, if you look at Africa and Europe—because that's where the fears of millions every year usually are—there’s a story of “Africa's population will double in the next decades, there will be climate change consequences. There's instability.” So the idea is that there will be millions of Africans coming to Europe. This hasn't happened, ever. And it hasn't happened not just because of Europe. Going through the Sahara into Libya is hell. Getting on boats from Mauritania, or Senegal, or Morocco to try to reach the Spanish Canary Islands is hell. The number of people—and especially the number of refugees—who are vulnerable people, who don't have many resources, who actually tried, has never been high. What you have is a number of young men who learn of somebody who's made a successful trip. So for example, the small country, Gambia, which has only 2 million people, was one of the top five countries reaching Italy in those years, because people learned that it was possible, and then others tried.
They crossed the Sahara, which was terrible, deadly. They were in Libya, they were enslaved and tortured. They got on boats, then many of them died on the route. But when they made it to Europe, they stayed in Europe, because there the system breaks down. Even if they don't get protection, even if an asylum system says, “Actually you're not a refugee because Gambia is now a democracy,” the returns don't work. So the reality is exactly like you described. In the end, it ended up being the cruelty in Libya, the fact that people were tortured in Libyan camps, which caused Gambians who then came back to say, “Listen, don't do it.” And I know civil society organizations in Gambia who travel around the villages and say “We've been in Libya. It's not worth it.” But it took a few years for this news to spread.
The system was crazy and deeply immoral because what you have is a country where there is no way legally even to hope that if you get an education, if you get training, that somehow you can legally travel to Europe as a student, tourist, or visitor. Legal mobility has declined in the last few years. And for the irregular rivals, it's a survival of the fittest with all the brutality on the route.
I've proposed this in Germany (because a lot of these Gambians went from Italy to Germany): Make an agreement between Germany and Gambia. Say that those who are now here, you will not deport them. But also from now on, anybody who reaches Germany and who is not a refugee, which is 95% of them, Gambia should agree to take them back immediately. The goal should be to discourage further irregular migration. But in return, Germany offers some legal routes: it increases scholarships, it offers schemes where if you get a qualification you might legally work in Germany. It makes it easier for people with relatives to get a visa. That kind of policy—to discourage irregular arrivals but allow some legal mobility—is both humane and in line with the Refugee Convention.
Mounk: What is the solution for the southern border of the United States, which is slightly different? What would you recommend to the American government more broadly in order to solve its problem of how to treat migrants humanely while managing migration flows?
Knaus: Well, what we see at the moment in America is a very good example of the fact that good intentions don't translate into good policy. In the last fiscal year, you had many more people being pushed back by the US authorities into Mexico than you had in the last year of Trump. You have less people getting protection now in the US than in the last year of Trump. You have almost twice the number of people who've died on that border in the last fiscal year compared to the last fiscal year of Trump. So you have at the moment a policy by an administration that says it wants to have a humane policy, but didn't think it through; and more people are being pushed back, more people try to arrive, more people die, than under Trump, who very openly said “I want to get rid of the right to asylum.”
So having the right intention is not the way to a more humane policy. And you have the political consequences of the fact that this is politically an explosive topic, everywhere. I'm not an expert on the US system, but the opinion polls I'm reading show that most Americans think (and they have reason to think) that this policy at the moment is failing. It's not a good policy: more push backs, more arrivals, more deaths, a greater sense of pressure.
So what you need to do is have a realistic policy that actually works on trying to replace and reduce irregular arrivals, with regular possibilities for those that have a good cause, and are desperate enough. And these are two groups of people. Not everybody who goes to the US is in need of protection, but some will be. So, it's a good idea that the Biden administration says it wants to increase global resettlement to the US. This is for refugees. And then the second group is people who have relatives, people who've been in the US before and then were expelled and try to get back. From the media reporting, these people are very motivated. They might have a relative irregularly staying in the US, a mother or father, a brother, and then they try to go irregularly. Now, if you could offer programs of legal routes for those groups (then you take away pressure at the border), and you combine that with the ability to return those who do not need protection fast. This is the problem with asylum: if anybody who reaches the US, and who you don't push back, then waits a year, or two or three because the asylum system is completely overwhelmed, then stays in the US irregularly, builds a new life… to return them after that date becomes cruel and very hard to carry out.
What you need to do is have the ability to say to people, “If you cross irregularly, we will make arrangements with other countries and your refugee claim will be processed somewhere else.” Of course, in return, we must offer these countries something substantial. We regularize the status of those in the US already. But we try to stop irregular migration, because politically and morally the dangers in irregular migration; the vulnerability to criminal gangs in Mexico and Central America; the number of deaths; and in the end, the political cost of Trump returning, because he says, “Listen, I'm the only one who has a solution”; is too high.
For progressives, I think the key question is to stop believing that a humane asylum system is one where you give up control of the border. And for, let's say, security and control-oriented Democrats or Republicans who don't believe like Trump, their policy has to be, “Well, if we want to control and reduce irregular migration, we must offer other ways for people to claim.” I think this will not solve the problem. But it will vastly reduce it and make it manageable. It involves both control and legal access.
And the strange thing is, in the ideological debates we have at the moment in Europe, in America, you either are Team Control, and you say, “Well, we want to push them back and have nobody come.” Or you're basically for open borders and say “Anybody who comes to our borders, we let them in, and then we have a four year asylum process, and then we try to work for legalization because they've been here for a long time.” And in this context, in the end, it's always the control and pushback group that wins.
Mounk: I wonder whether in this particular case, it's not actually that there's half of the population that wants one thing and half of the population that wants the other thing, but that most people want a combination of things that's impossible: people want a limit on migration, without any kind of state cruelty, and nobody has yet figured out how to do that—except, I suppose, the proposal you put forward.
If governments adopted what you're talking about, would that be enough to get out of this zigzag political dynamic?
Knaus: I think you describe it well: it is two souls in most people's breast. I met people who worked with refugees in Sweden, the country that gave the most protection per capita in the world through asylum: 230,000 people in a few years. They said “We need some control.” They don't want to be cruel, but they want to have some control. And if you don't answer both, in the end, it's going to be the Trumps that set the policy.
So what do you need to do? Let me be concrete. I'll give you two examples in the central Mediterranean. And this is what this German government has said and written it wants to do in its coalition treaty, but the difficulty will be doing it. They said that they need to find partners. If Germany, France and Italy, negotiate with a country in North Africa and say, “Listen, are you prepared to take a limited number of people that we rescue?” So the goal is that we rescue people, we don't let anyone drown. We actually increase the rescue effort, and we don't return people to Libya, because Libya is a cruel place. But we want to stop people coming in this way. We could offer a country like Tunisia visa-free travel for its citizens, in return for, after the cutoff date, taking back the people that we rescue. The number of people who will then be taken back to Tunisia would rapidly fall because you don't risk your life in Libya, if you are then returned within a very short period.
And this, of course, was what my colleagues and I proposed to Turkey in 2015. It led to the EU-Turkey statement. The idea is that Turkey agrees with the European Union that from a cut-off date it takes people back. They can apply for asylum, but those that are found to be safe in Turkey are returned. The flow immediately collapsed. The number of deaths in the Aegean fell from 1000 to 100 to 80 in 12 months, and in return the European Union offered to Turkey resettlement of refugees in a larger number, support for the refugees in Turkey financially (the biggest aid in the history of the EU: 6 billion for the three million, three-and-a-half million refugees in Turkey for four years), plus the promise of visa-free travel for tourists—which in the end, because of the military coup attempt in Turkey, collapsed. But this was a fair offer.
The Turks took our paper, which was translated into Turkish (I went to Ankara, I talked to Turkish ambassadors, negotiators) and they returned to Germany and to the EU, and said, “Here is what we propose to you,” and the Germans and Dutch say, “Brilliant, we’ll take it.” This is what we need to achieve with Morocco, with Tunisia.
Mounk: Let's go a little bit beyond the topic of migration. One of the other big crises in Europe at the moment is the rule of law in Poland. And you've been working very closely on this.
First of all, for our international audience: what is the nature of the danger to the rule of law in Poland, and why has that led to a kind of standoff with the European Union?
Knaus: What we have in Poland is really an extraordinary story. This was a success story of a democratic transition. After communism, you had free elections, many changes in government, you had independent and proud courts, you had civil society and media. This looked like a very robust democracy. And then in 2015, a political party came to power after an election campaign that was relatively modest. They didn't announce a radical agenda. But once they gained power, they actually set out a politically smart and brutal way to capture the key institutions. For example, they just paralyzed the Constitutional Court. They imposed three new judges that they were not legally allowed to impose. And when the court didn't accept it, they said, “from now on, we won't publish your decisions in the Official Gazette.” For one year, they just shut down the court. And then they played another trick to put a loyalist in the position of president of that court. Since then, the Constitutional Court has become a mouthpiece for the government. Whatever they want to do, the court always says it's constitutional. And then they set out to fire a huge number of judges, to create a system where the Minister of Justice in the country is also in control of all the prosecutors. He can fire the president of every court in the country, which in turn means he can have pressure on every judge, and he can have a system where he can discipline every judge in the country for their decisions. Everything that happens in a courtroom in Poland—this man can control. It's like in Venezuela and Russia, or today in Turkey. You never had such a system in a European Union member state. Now this system was created very quickly. There was a lot of resistance. People went into the streets, there were demonstrations. But because it was done step by step, with surprising speed, all the mechanisms of control that we thought were in place, failed.
So now, it's reached a point where it's come down to a real high noon, a showdown, because the only mechanism that had some effect was the European Court of Justice, the highest court in the EU, which stepped in and said, “for the European Union to work, it requires that Polish courts are free, because judgments in Poland are recognized by German courts, French courts, automatically. But if your courts do what the Minister of Justice tells them to do, if your judges are not free, the rest of Europe can't recognize these judgments anymore.” And then the European legal structure collapses. The European judges said this cannot be possible in a member state.
It's the moment of truth, because now the European Commission and the European institutions must decide whether to put a massive fine on Poland (legally, they can ask for 5 billion a year). It needs to deter.
The question in Poland, where most Poles actually, in opinion polls, are pro European Union (a slight majority even thinks the European Union is too weak on the rule of law) is: Will this stop the Minister of Justice? Will this be a great success for the rule of law imposed by the European court, or will it turn into a great failure, where the European legal structure collapses? It's literally these coming weeks that this battle is coming to a head, and it will be of huge significance for the future of Europe.
Mounk: I have two sources of slight skepticism about how likely it is that the European Court of Justice will be able to deter Poland. Political scientists had a theory that the European Union would, through all kinds of mechanisms, lock in the democratic institutions—that it would be impossible for a member state of the European Union to backslide. And so far, it has seemed to be the case that at each juncture, other member states of the European Union have not had the political will to impose any significant consequences on backsliding democracies, including Poland, Hungary, and arguably a few other Central European states.
How likely is it that these very steep consequences will successfully deter Poland? Does that just depend on the will of the European Court of Justice, or does it also need the cooperation of the European Commission and other European institutions? If Poland simply ignores the ruling of the CJEU, is that the beginning of the end of their membership in the European Union?
Knaus: Let me go to the first question, because that's the key. This does not depend on other member states. It does not depend on what Germany or France think or do. And that is crucial. Because if it depended on other member states, it wouldn't work. The way the EU works is that when the 27 governments meet, they make bargains all the time. It's a very good mechanism to reconcile interests. It's a very bad mechanism because nobody really wants to put anyone in the corner, because you need them the next day, right? So anything that requires member states becoming tough with each other, I don't think it's going to happen. But that is the beauty of the separation of powers.
If the European Court of Justice establishes this line, and articulates to the Polish public that it has no choice: “this isn't against Poland. Please, if you just reverse this, you will not pay any fine. Not only will you not pay any fine, massive funding that the European Union has frozen already will become available right away.” There is high inflation in Poland, it's very attractive. Most Poles, I think, in this situation would say to their politicians, “Listen, don't play this game.”
It's a historic moment, a moment of truth. It's not about who rules in Poland. You can have conservative governments. But you can't have governments that fire all the judges and control all the prosecutors and make them dependent on a man, one man. If the European Union wins this battle, it's the most important victory for consolidating EU democracies that we've ever seen.
Mounk: I want to ask you a broader thematic question. From the topic of immigration to the rule of law and the European Union, you've tackled areas that are intractable, where there seemingly isn't a good solution, and you've been able to influence politics through ideas that somehow seem to cut through these political Gordian knots.
How does one go about doing that, and how can we collectively get better at it?
Knaus: I think the key is that when we approach a problem, my colleagues and myself, we have a small think tank. We don't have a big budget, we have 15 people. But we work on problems that we identify as existential for European democracy and stability and human rights. We go into great detail. We've now written a lot of very detailed analysis, and of course, we go to Poland a lot. We go to all the policymakers in Europe, we understand what they think, we see their constraints, and we then try to find (which I think is what these populists have been doing) the point to concentrate on where the decisive instruments exist to do something. A lot of weakness in the response of those who worry about these populist attacks on our institutions is that they respond in a very broad way: they respond with moralistic appeals, they see a very broad attack by populists all across Europe, without distinguishing what specifically might be done in Poland. What specific tool might be used when it comes to Hungary?
If you want to work on humane borders, you need to understand that we've spent a lot of time talking to border guards. I went with the Finnish border guard service to the Russian border. And they explained to me what they can and can't do. I spend a lot of time with asylum officers in the big asylum systems in Europe, the Dutch system, the French system, the German system. I was invited by the French Minister of the Interior a few weeks ago to give a presentation of ideas to all his prefects, hundreds of French officials in the Ministry of the Interior. When you speak to them, I can't just go there and say, “What you do is bad.” I must think, “What are the problems they are trying to solve?” And show them that what we propose works for them. And this means you cannot work on a lot of issues, you can't make many general proposals, you need to focus on solving one problem at a time. And then it will take years, if you're lucky. But the result is that at the end, the people that you convince, who have the power and the legitimacy to act, then realize when they've tried everything else and it doesn't work that perhaps this is the thing to do. Sometimes you're lucky, even as a small institution.
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