The Next Liberal Order
The Age of Contagion Demands More Internationalism, Not Less
Just as one rotten apple can spoil a barrel, one brutish autocrat can spoil a political union. As Hungarian Prime Minister Viktor Orban has consolidated power and built an increasingly authoritarian regime, he has thumbed his nose at the European Union—and mostly gotten away with it. Over the past few years, Orban has been a mild embarrassment for the union, but in his callous and shortsighted reaction to the ongoing refugee crisis, he has become a disgrace.
Styling itself as the defender of Europe’s so-called Christian civilization against an Islamic invasion, Orban’s regime has left thousands of refugees to languish in fields and in the streets, forcibly herded others into squalid detention camps, and fired water cannons and teargas at refugees gathered against the razor wire fence Hungary has erected on its border with Serbia.
European civilization may in fact be at risk. But it is Orban and his regime, not the desperate men, women, and children marching along the highway from Budapest to Vienna, who pose the real danger. The European Union claims to stand for liberal democracy, respect for human dignity, and human rights. With his regime’s xenophobic rhetoric and hostile treatment of refugees, Orban is making a mockery of these values and encouraging other eastern European governments to follow his example.
Likewise, Orban is a threat to Europe’s legal order. The Orban government claims that it is abiding by the EU’s Dublin Regulation, set of rules governing how member states should process asylum claims, and that it is fulfilling its legal obligation to secure the EU’s external borders. But the Orban government is distorting the application of these rules to pursue its populist, anti-immigrant agenda and is violating other EU rules concerning the humane treatment of refugees.
A BROKEN SYSTEM
Orban is right about one thing: The refugee crisis has revealed that the EU rules on immigration and asylum are in desperate need of reform. Under the Dublin system, the European Union places most of the burden for processing and caring for asylum seekers on the border states in the east and south, where migrants first enter the union and are supposed to make their asylum claims. This system is unfair and unsustainable. It places the bulk of the burden on poorer member states, such as Greece and Hungary, which are least equipped to handle it.
European civilization may in fact be at risk. But it is Orban and his regime, not the desperate men, women, and children marching along the highway from Budapest to Vienna, who pose the real danger.
The system also creates perverse incentives. Governments on the frontlines may be tempted to take a beggar-thy-neighbor approach, making themselves as unwelcoming as possible in the hope that migrants will seek asylum elsewhere. The migrants have incentives to break the EU rules and delay making asylum claims until they arrive in wealthier, more welcoming countries, such as Germany. And these more generous and humane governments may feel compelled to flout the rules and accept the refugees that they see suffering in states like Hungary.
The chaos unfolding across the EU’s borders in recent weeks demonstrates that this system is unsustainable.
But for national leaders, such as Orban, to blame the European Union for such failures is the height of hypocrisy. In the first place, the Dublin rules were established with the agreement of EU member governments. Moreover, the European Commission has proposed—first in May and again this month—a new system of mandatory burden-sharing, in which all member states would agree to take in a quota of the refugees, determined on the basis of the country’s size and wealth. France, Germany, Italy, and a handful of others support this approach, but Hungary has led a coalition of Eastern European states—alongside the increasingly isolationist United Kingdom—in opposing it.
Put simply, Orban has blocked sensible reforms of the EU’s immigration and asylum system and then complained about its failings. His government creates as hostile an environment as possible for asylum seekers and then feigns dismay when they refuse to register their asylum claims in Hungary, as the EU’s Dublin rules require.
Orban’s controversial response to the refugee crisis is the latest chapter in his regime’s ongoing defiance of EU norms. Over the past few years, as he has attacked Hungary’s judicial independence and media pluralism, manipulated its electoral system, and otherwise consolidated his unchecked, one-party rule, the European Union has tried to restrain him, but only half-heartedly. The European Parliament has issued critical reports and the European Commission has launched legal actions against the Hungarian government for various violations of EU law. But none of it has been enough to deter Orban.
Some European leaders have criticized Orban’s most provocative moves—such as his promise, in July 2014, to build an “illiberal state” along the lines of China, Russia, and Turkey, or his recent suggestion that Hungary should consider reintroducing the death penalty. But most leaders have failed to denounce him.
Orban’s controversial response to the refugee crisis is the latest chapter in his regime’s ongoing defiance of EU norms.
Left unchecked, it is impossible to predict how far Orban will go. Earlier this month, he used the migrant crisis to push a draconian immigration law through the Hungarian parliament. The law criminalized damaging or simply crossing a border blockade, such as the new fence on the border with Serbia, thus giving the government cause to arrest most asylum seekers entering the country. The law also empowered the government to declare a “state of migration emergency,” which it did on September 15. The Orban government has started arresting and deporting migrants who cross the border fence. The government is processing asylum claims in special “transit zones” at the border, and rejecting and deporting applicants who have passed though Serbia, which Hungary has deemed a “safe country.” The United Nations’ High Commissioner for Refugees, Antonio Guterres, has called Hungary’s policies “legally, morally, and physically unacceptable.” The government has announced plans to extend the fence along Hungary’s borders with EU member states Romania and Croatia, and the Hungarian parliament is set to consider granting the armed forces and police a range of new powers during migration emergencies.
STOP THE ROT
Europe must recognize the threat that the Orban regime poses to its democratic union. The refugee crisis not only demonstrates that the EU immigration and asylum system is broken, it also shows that no system can hope to function if a hostile member state actively seeks to undermine it. The Orban government’s latest actions have violated the EU’s core values of respect for human rights and human dignity, they have antagonized neighboring countries, and they have sown discord within the union. As EU leaders work in the coming days and weeks to replace the failed Dublin regime with a workable asylum and immigration regime that shares the burden fairly, they must also address the Orban problem.
The European Union should use all legal tools at its disposal to challenge the Orban government. Routine “infringement procedures,” cases brought for isolated violations of EU law, have proven inadequate as they miss broader patterns of abuse. So the European Commission should consider bundling together a number of such cases into a so-called “systemic infringement action,” which would demonstrate that the country in question—in this case Hungary—is engaged in a systemic breach of the EU’s fundamental values.
The European Union should also invoke Article 7 of the Treaty on European Union, which would enable it to suspend Hungary’s voting rights within the EU for persistent, systematic violations of the union’s fundamental values.
Legal tools should be backed by stiff financial penalties. As some European foreign ministers have suggested, the European Union should go beyond its normal procedures for fining states that violate EU law and consider suspending some of the funding Hungary receives from the EU. Orban bristles at EU criticism, but he is happy to take the EU’s money. Indeed, his regime depends on it. Hungary contributes less than one billion euros to the EU’s budget, but receives nearly 6 billion euros in EU funding, with total EU spending in Hungary amounting to more than 6 percent of its gross national income. More than 95 percent of all public investment projects in Hungary are co-financed by the EU. The union thus finds itself in the absurd position of heavily financing a regime that regularly attacks it.
But legal and financial tools alone may not be enough to stop Orban, whose government has demonstrated its facility at skirting EU rules even as it claims to comply with them. If national leaders across Europe want to stop Orban from antagonizing and fragmenting their union, they also need to apply direct political pressure on his regime.
All of Europe’s leaders should stand together to publicly condemn Orban’s rhetoric and policies. If they fail to do so, the rot will only spread.
To date, the most vocal criticism of Orban has come from leaders on the left of the political spectrum, such as Austria’s Chancellor Werner Faymann. By contrast, leaders on the Center–Right have mostly kept silent or actively defended Orban. Why? Party politics. Orban’s Fidesz party remains a member of the European People’s Party—the coalition of Center–Right parties in the European Parliament— and his EPP colleagues have been reluctant to attack one of their own. In fact, with partisan interests in mind, leading EPP figures have publicly defended Orban.
This needs to stop. While many on the Center–Right may agree that tougher border controls and less inviting asylum policies are needed, they need to make it clear that Orban’s treatment of refugees is beyond the pale. Leaders of the EPP, including German Chancellor Angela Merkel, Commission President Jean Claude Juncker, and Council President Donald Tusk, should begin by denouncing Orban’s actions and announcing that his party will be ejected from their Center–Right coalition if his regime does not change course. Then all of Europe’s leaders should stand together to publicly condemn Orban’s rhetoric and policies. If they fail to do so, the rot will only spread.