On May 11, 2020, the European
Court of Justice (ECJ), the E.U.’s highest court, ruled against the state of
Hungary on its detention camp near the Serbian border. The state had denied the
asylum requests because the immigrants had come through Serbia, and the latter
refused to allow them to reverse course. The immigrants were thus stuck, essentially
detained in “prison-like conditions.”[1]
The high court ruled that the “conditions prevailing in the Roszke transit zone
amount to a deprivation of liberty.”[2]
ECJ Advocate General Priit Pikamae had argued that the “unlawful detention” was
due to the “high degree of restriction of the freedom of movement.”[3]
The state of Hungary had argued that the immigrants could have stayed in
Servia, as it was a safe-country of transit, and thus were not eligible for
asylum in Hungary. Unlike Hungary, Serbia was not an E.U. state, which may be
why the asylum-seekers did not want to remain in Serbia. Hence being a border
state added to Hungary’s woes. Therefore, the E.U. had some responsibility to
alleviate the pressure on Hungary. Yet the Union did not do so, showing its
weakness, and yet the state government bowed to the ECJ’s ruling. To the extent
that the E.U. relies on such self-subordination in the want of federal help,
the E.U. could be said to be on borrowed time during which basic adjustments to
the federal system could be made.
As a border-state of the E.U.,
Hungary doubtless felt that it could be overwhelmed by asylum-seekers from the
Middle East. This set the state’s particular interest at odds with the common
interest of the Union because Hungary and other border states would bear the
disproportionate weight of the waves of asylum-seekers in the late 2010s. Even
though the state’s prime minister, Viktor Orban, was a Euroskeptic, or state
rights proponent, and thus especially oriented to his state’s interests, he
bowed to the federal court’s ruling, and thus authority. “The Hungarian
government disagrees with the ruling, we consider it a risk with regard to
European security, but as an EU member state, we will adhere to all court
rulings,” Gergely Gulyas, a government spokesman, said at the time.[4]
Even though the E.U. had not come in to
solve the intractable problem of the camps, the Euroskeptic state would act
according to the ruling of the federal supreme court. This may mean that the
E.U.’s federal system had strength at the state level in spite of weakness in
united action for the whole—that is, more strength than the Union deserved.
Generally speaking, a federal
system is internally vulnerable, and thus weak, to the extent that it must rely
on the voluntary subordination of the state governments who must nevertheless
suffer from insufficient federal power to redress Union-related state problems.
To be sure, a federal system is weak if the states recognize federal authority
only when it suits them. Hence the U.S. federal government acted against the
state of South Carolina in 1832 after it passed a law invalidating any federal
law in the state that goes against the state’s interest. Yet if state
governments suffer enough adverse federal judicial decisions without federal
help with problems that are acute at the state level (especially if acute
because the state is in the federal system), then at some point secessions may
result in the dissolution of the federal system.
In the E.U., the federal level
was at the time still too hamstrung by overarching state power to be able to
act sufficiently even to help particular states on problems stemming from the
states’ respective roles or situs in the Union. For example, any state
government could veto the proposed law to help the most economically distressed
states financially in the midst of the coronavirus pandemic. The power of the
states generally is made worse by the strangle-hold that the most powerful
states had over the federal level (think Germany and France). Money would not
be allocated for the E.U. to deal with the asylum-seekers in Hungary’s
detention camps if the most dominant state governments did not agree that the
common interest in doing so was worth it to those states. To the extent that
the most powerful states could effectively use federal institutions in line
those states’ own interests even at the expense of common problems, other
states, such as Hungary, would naturally be Euroskeptic. For such a state to
recognize an ECJ ruling averse to the state’s interests anyway is surely laudable,
even if it buys the Union added time to redress the problem of the imbalance of
power between the federal and state levels.
[1]
Deutsche Welle, “Hungary
Illegally Held Asylum-Seekers, ECJ Rules,” DW.com, May 14, 2020 (accessed
May 22, 2020).
[2]
Ibid.
[3]
Ibid.
[4]
Deutsche Welle, “Hungary to Close Transit Zone Camps for Asylum-Seekers,”
DW.com, May 21, 2020 (accessed May 22, 2020).
