A border fence intended to halt migrants from traveling to Hungary through Serbia will be finished by the end of August. The border, located in Southern Hungary, has become a popular crossing point for thousands of migrants from the Middle East, Asia and Africa hoping to flee from the poverty and war in their home countries.

A host of legal implications are wrapped up in these migration patterns and the building of this fence. We discussed these issues with Kim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs at Princeton University's Woodrow Wilson School of Public and International Affairs and the University Center for Human Values. Scheppele is a faculty associate at the Program in Law and Public Affairs at the Wilson School and served as its director from 2005 to 2015. She also wrote a similar piece for Politico. 

Scheppele's work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress. She has studied the emergence of constitutional law in Hungary since 1989 and has also resided in the country for extended periods. 

Q. What is the thinking behind the fence built by the Hungarian government on the border of Serbia? How concerning are these migration issues?

Scheppele: Europe is presently experiencing a migration crisis brought on by the large number of trouble spots around the world in which life has become intolerable for ordinary civilians. These endangered people are flocking to the European Union (EU) to seek asylum. Frontex, the European border control authority, estimates that 100,000 migrants sought asylum in the EU in July alone. Countries at the borders, including Hungary, have been struggling to cope with this influx of desperate people. 

Hungary borders seven other countries, but it is only building a fence along the 109-mile border with Serbia. If you look at a map, that’s quite strange, because migrants who have traveled thousands of miles to get to the EU will not be deterred by a short fence. But Serbia is the only border (apart from an even shorter border with Ukraine) that Hungary shares with a state that is not in the EU. Hungary is building the fence so that it is not the first EU country migrants enter. If migrants are diverted by the fence and must go through Romania or Croatia, then those states become the entry point into the EU.  

Hungary doesn't want this to be the first point of entry for migrants because, under the “Dublin Regulation,” the first EU country migrants enter is the state responsible for them. That state must house and feed them, ensure their health and safety, allow them to enter the labor force and process their asylum applications. This is a very heavy burden for the few states through which the vast majority of migrants now enter the EU. Greece, Italy and Hungary have become the transit points through which migrants enter the EU, and yet they are among the poorer states in the EU. Things are so bad in Greece that the European Court of Human Rights bars other countries from sending migrants back there because the system for processing asylum claims has collapsed under budget cuts. Italy is overwhelmed with migrants crossing the Mediterranean. And Hungary has received 110,000 asylum applications so far in 2015, even though the Hungarian population has the highest level of financial insecurity in Europe. Having these front-line states bear the EU’s burden in this global crisis is unjust. 

Q. Do you think the Hungarian government fears that other countries in Europe will invoke the "Dublin rules?" What do these rules entail?

Scheppele: The Dublin Regulation is designed to sort out which member state has the responsibility for processing each asylum claim. At some level, it makes sense to designate one country to take the lead, or else migrants will apply in many states that engage in overlapping work and potentially contradictory decisions. But if migrants enter one country – say, Hungary – just to pass through to ask for asylum elsewhere, this second EU member state can send those migrants back to the place where they first entered the EU. So, we see richer EU states dumping migrants back on poorer EU states.  The EU just allocated some emergency funds so that Hungary, Greece and Italy can better cope with the huge number of people involved. But anti-migrant sentiment is so high across Europe that other states are eager to shift the burden back to the entry states, of which the law allocates the responsibility. 

Hungary, however, has figured out a way to evade its obligations under the Dublin Regulation. By building the fence, it pushes the migrants to enter the EU elsewhere – and so avoids being the state that bears ultimate responsibility for them. But for the more than 100,000 people who have already entered this year, Hungary has changed its asylum rules. Now, if any migrant entered Hungary through a “safe state,” then Hungary – under its domestic law – can reject the asylum application and send the migrant back to the safe state. Hungary has designated Serbia a safe state, so the Hungarian government can now determine that a migrant has entered across the Serbian border and then send that migrant back there without inquiring further into that migrant’s grounds for asylum. The new law means that Hungary will reject virtually all of the asylum applications that have already been made.

Q. Does the construction of the fence carry with it any political implications? For example, Prime Minister Viktor Orbán has been losing in opinion polls to Jobbik, a far-right party that has been persistently anti-immigrant. Does Orbán have a political angle here?

Scheppele: Viktor Orbán is a very clever lawyer, surrounded by clever lawyers in his inner circle. He has figured out a way to avoid all EU obligations while not exactly violating EU law. Orbán did this not just to shift the burden, but also to score political points. As the migration crisis started, Fidesz, the governing party, was dropping like a rock in the opinion polls. In the meantime, Jobbik, a far-right (some say neo-Nazi) party, was rising.By seizing the initiative on migration and developing this zero tolerance policy, Orbán has managed to stop his party’s slide in the polls and has once again achieved a healthy lead by out-Jobbik-ing Jobbik, so to speak. For the last several months, it’s been nearly impossible to distinguish the public rhetoric of the governing party Fidesz from the rhetoric of its far-right challenger. Orbán often wins sympathy in Europe by saying that only his party saves Europe from Jobbik. But you have to wonder what that means when his party is now imitating – and, in some ways, outdoing – Jobbik.

Q. Are these actions disuniting Europe even further? And does Orbán have anything to gain from that?

Scheppele: Europe is having a rocky time at the moment. Between the eurozone crisis, the threat of British exit, the challenges to European values posed by the soft authoritarianism of Viktor Orbán and more, the EU is being hit from all sides by member states that are undermining solidarity in the European project. Nothing, however, splits the EU like the migration issue. Even countries with tolerant governments that have let in many migrants have far-right parties that torch migrant shelters, demonstrate against the refugees and otherwise show an ugly face of Europe.

European Commission President Jean-Claude Juncker tried to develop a plan in which each country would take migrants in proportion to their populations and ability to cover the costs. But Orbán led a revolution against this proposal, and it failed in the European Council. Even though Orbán is now considered the bad boy of Europe because he has undermined the rule of law in his own country, other countries seem grateful when he gets out ahead of the anti-immigration campaign, saying things that other EU leaders feel but are too polite to mention. So, Orbán postpones any EU action against his own state for having violated the rule of law because Orbán has picked an issue to lead on where no European country looks good. The migration crisis has been good for Orbán politically even as the Hungarian solutions leave the migrants worse off.