In the 12 months since Russia launched its full-scale invasion of Ukraine, the European Union has taken unprecedented steps to accommodate millions of refugees, to provide military supplies to Ukraine’s beleaguered armed forces, to stave off a continent-wide energy catastrophe, and to sanction Russia for violating international law. One year later, Harvard Law Today spoke with expert Elena Chachko S.J.D. ’22 to learn more about the EU’s response, how this famously bureaucratic international institution was able to mobilize so quickly, and whether precedents established over the last year will lead to further European integration. According to Chachko, the Rappaport Fellow and lecturer on law at Harvard, both the EU and NATO “were organizations in search of purpose and in need of an energy injection, and Ukraine provided that.”
Harvard Law Today: What has impressed you most about the EU’s efforts to respond to the Russian invasion of Ukraine?
Elena Chachko: The first impressive thing is just the speed of the response. The EU is typically a very bureaucratic, general purpose governance organization which doesn’t know how to move quickly. But in this case, it has managed to do a lot of impressive things in a relatively short amount of time, while mobilizing all member states, including actors like Poland and Hungary that are often spoilers in many of the EU’s recent initiatives.
The EU has also managed to put new, largely unprecedented policies into place, particularly in three areas. First, the EU allowed Ukrainians to enter the EU and live and work wherever they want within EU territory. That’s a significant deviation from the way the EU typically approaches asylum, and from how it handled previous crises. Second, the EU for the first time provided significant military assistance, including billions in weapons, to a third country during active armed conflict. That’s unprecedented and represents a major milestone in the development of the EU common security and defense policy, which has languished for decades and hasn’t previously produced any significant initiatives. And finally, this conflict has been an existential crisis for the EU in terms of its ability to maintain its energy sources and make sure that EU citizens have fuel to put in their furnaces during the hard winters. So, what the EU has done, including very extreme measures like potentially mandating rationing on energy consumption by EU member states, is very significant.
HLT: How did the EU manage to implement these initiatives so quickly?
Chachko: In a paper I’ve written with [Berkeley Law Professor] Katerina Linos [’06], we examined the techniques the EU has used to produce these responses in a timely manner and push through initiatives that are incredibly ambitious, some of which were rejected in the past by the EU member states. Many of these responses involved looking back into the bureaucratic annals to find some sort of modest legal instrument to build on to achieve new goals. That was the case with refugee policy, where the EU activated an old directive that had been put in place during the 1990’s Balkans crisis and never used since. The EU invoked it to allow Ukrainians to enter its territory and to receive certain rights in any EU member state. Another example of this occurred in the defense field, in which the EU had this small pot of money, and a procedure in place to provide military assistance to various third actors. It hadn’t been used in any significant way up until the Ukraine crisis, but blew up in the wake of Ukraine, allowing the EU to quickly provide billions in military aid. Economic sanctions also have been incredibly important tool. The EU has been imposing sanctions in response to various policy challenges for about two and a half decades now. As a result, there are already a bunch of sanctions authorities and processes in place that allow the EU to quickly impose new sanctions.
“The EU is typically a very bureaucratic, general purpose governance organization which doesn’t know how to move quickly. But in this case, it has managed to do a lot of impressive things in a relatively short amount of time, while mobilizing all member states.”
Another reason that probably motivated the EU to act so quickly was that the Russian presence on sovereign territory of a country so close to the EU border reminded a lot of the countries, especially the Eastern European members of the EU, what it’s like to be under Russian occupation. This helped provide the political will necessary for member states to push through significant policy responses that they hadn’t managed to support in past crises, such as the 2015 refugee crisis.
HLT: You mentioned that the EU has handled the Ukrainian refugee crisis differently than past influxes of asylum seekers. Do you think their recent approach heralds a permanent change?
Chachko: Lots of people have criticized the EU for being so welcoming to Europeans who are predominantly Christian women and children, as opposed to past refugee crises in which the migrants were Middle Eastern or Afghan. Some of those critics have alleged racism. And there is strong evidence to support the claim that discrimination was one of the main drivers of the differences between the various responses.
But looking ahead, there are reasons to expect that at least some elements of the EU Ukraine refugee response will be replicated in the next crises. The idea behind the mechanism that the EU used in the Ukraine case — that all members have a duty to share responsibility for asylum seekers — builds on the mechanism that was put in place for dealing with the 2015 refugee crisis and expands it. Under international law, states are obligated not to turn asylum seekers back to danger and to provide them with an individualized assessment of their eligibility for refugee status. And that is a very impractical approach for dealing with mass displacements, where you have millions of asylum seekers on the borders of the first safe countries they reach at once.
“EU member states accepted the idea that they will have to host asylum seekers from Ukraine, regardless of whether they were arriving at their border or the border of another EU member state. So, the principle is taking hold in EU immigration and asylum policy and could be replicated in future migration crises.”
So, in 2015, the EU adopted a so-called solidarity mechanism, in which it redistributed asylum seekers that were concentrated predominantly in Greece and Italy to other parts of the European Union. It assigned each state a quota. Now, implementation wasn’t great at the time, to say the least, and many countries refused to accept any of their allocated asylum seekers. Hungary and Poland actually litigated this in the European courts. But the basic idea that we treat mass displacement seriously, and we think about a systemic responsibility-sharing approach to their plight, has its roots in that crisis.
And so, this time, the EU built on the same principle but expanded it significantly, eliminating the quota. All the EU member states accepted the idea that they will have to host asylum seekers from Ukraine, regardless of whether they were arriving at their border or the border of another EU member state. So, the principle is taking hold in EU immigration and asylum policy and could be replicated in future migration crises. Will the EU be so generous to the next wave of asylum seekers if they’re not European and not considered as part of ‘our community,’ as opposed to ‘others’? That’s a question that’s hard to answer.
HLT: Defense policy in Europe involves multiple entities, including individual nations, the EU, and NATO. Can you say a bit more about how the invasion has impacted Europe’s approach to defense policy?
Chachko: Russia’s invasion was a shock to European security architecture on all three levels that you mentioned. Two of the three were organizations in search of purpose and in need of an energy injection, and Ukraine provided that. NATO was also reinvigorated. For the first time in a long time, the alliance was mobilized to address this conflict. And they’re talking about adding new members again [Finland and Sweden]. At the EU level, providing offensive military assistance to a country in the middle of an armed conflict for the first time represents a complete reorientation of the EU’s defense and security role globally. And at the member state level, Germany, for instance, made a very impactful decision to modernize its military and to invest in security buildup. Those are all moving parts and we don’t yet know how they will reshape the defense architecture on the continent.
HLT: What have all these EU actions achieved in Ukraine?
Chachko: Neither the EU nor the international coalition for Ukraine have been very successful to date. The conflict is ongoing, with lots of law of war violations taking place every day. And it doesn’t seem like any of these measures have dissuaded Russian leadership from pressing on with their effort. And so that raises interesting questions about the power of international law and of international institutions to compel compliance with international norms. Even a significant international response that really mobilized everything short of direct military intervention has not been enough to put an end to the suffering on the ground in Ukraine. And that is worth contemplating. I don’t have good answers about what we can do better and how we can make the Russias of this world comply with basic norms like ‘do not occupy foreign territory’ and ‘do not invade a foreign independent country. But here we are.
This interview was edited for length and clarity.
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