Migration and Rule of (Human Rights) Law in the EU : A “Constitutional” Crisis

This paper focuses on the interrelationship between two European ‘crises’: the ‘refugee crisis’ and the crisis of the principle of the rule of law. The two crises find their point of connection in the responses to migratory flows put in place by the EU and some of its Member States. The migratory pressure against European external borders has induced some governments to adopt a restrictive and security-driven approach, carried out, on the one hand, by reinforcing border controls and, on the other, by seeking the cooperation of non-EU countries in order to contain departures and to tackle movements of migrants towards Europe. These ‘securitization’ and ‘externalization’ strategies are in contrast with the principle of the rule of law from perspectives: they violate some of its essential components, such as transparency, legal-procedural certainty, democratic participation and control; and they breach the same principle insofar as they lead to severe human rights violations.