The new Finnish emergency law on combating instrumentalised migration is problematic and insufficient

EINO INKI

Background of the current situation:

During late autumn in 2023 Russia began a systematic hybrid warfare campaign against Finland by encouraging and assisting nationals from third countries to cross the Finnish border and seek asylum in Finland. Similar attempts have been observed earlier at the borders of the Baltic States and notably in Poland.

The Finnish government decided to propose an emergency law (HE 53/2024 vp) that was urgently adopted with 167 votes for and 31 against on 12th July 2024. However, this new act is not a viable solution to the issue in my opinion. On the contrary, it might damage our image as a law-abiding nation internationally as well as undermine our own traditions of constitutional obedience and respect for the order-based world order.

JEF Finland already expressed its stance (https://eurooppanuoret.fi/artikkelit/kaannytyslaki/) on the emergency law stating that a grave violation of international obligations and EU law would occur if the act is adopted by the Finnish parliament. Now that some time has passed from its adoption, I would like to express my own views on the complicated relationship between the emergency law and EU law.

The recently adopted emergency law has not been applied in practice as of the time of writing. Yet there is still much room for debate surrounding the issue of “instrumentalization” of migrants as a means of hybrid warfare.

What is wrong with the emergency act?

Applying the act would lead to breaches of fundamental rights and freedoms guaranteed by the EU. The emergency act enables Finnish border guards to reject requests for asylum based on their own evaluation of a situation where asylum seekers are being used as a means of hybrid warfare by a state actor. This kind of significant exercise of public administrative tasks by individual officials requires strong preliminary judicial remedies and legally established responsibilities for officials according to Finnish constitutional practices. It is dubious whether this new law suffices these requirements on a national level, but it might. Nevertheless, it is not sufficient at least on the EU level in my opinion. 

a) lack of effective judicial remedies

Ignoring necessary judicial remedies is in my opinion the biggest practical issue of this newly adopted law. 

The Charter of Fundamental Right of the European Union (CFEU) is the most significant legal document which covers certain rights, liberties and obligations concerning Member States when implementing EU law. The Finnish government is trying to go around the Charter by invoking national defence which falls outside EU competence. In this way the CFEU could not be seized in court.

What rights does the CFEU contain? 

Article 18 of CFEU guarantees the right to asylum in accordance with international standards. In addition, Art. 47 CFEU sets minimal standards for effective remedies including a fair and public hearing by an independent tribunal within a reasonable time.

According to an earlier report by the Constitutional Law Committee (PeVL 29/2024 vp, 7 point), an independent tribunal must be included in the law. However, the Management Committee decided (HaVM 15/2024 vp) that improved judicial remedies would not have to be extended to individuals at the border but only to those that are to be expelled from Finland. Even this would not include review by an independent tribunal but a revaluation by the Finnish Border Guard.

The lack of an independent tribunal is problematic because of the fundamental nature of these rights under EU law. Based on the wording in Art. 47 CFEU it is unlikely that merely a demand for rectification to the border guard (not a tribunal) would be satisfactory as a sufficient judicial remedy.

b) enabling of pushbacks

The emergency law could also potentially lead to breaches of the non-derogable international legal principle of non-refoulement. This means that the so-called “pushbacks” might become a reality at the border. The core of the principle of non-refoulement is that without any exception collective expulsion is prohibited. Art. 19(1) CFEU also explicitly prohibits collective expulsions.

The European Court of Human Rights (ECtHR) is an independent international tribunal that has officially nothing to do with the EU, but it generally sets a minimal standard for the application of CFEU. It is also noteworthy that the ECtHR has taken an extremely strict stance on pushbacks: they are prohibited even on the high seas outside the state’s own territory (Jamaa case, ECtHR, 2012). Based on this case what matters is whether the asylum seekers would be under effective control of the Finnish Border Guard, not the territorial scope. This is also the reason why there needs to be established judicial remedies to individuals potentially trapped between in the border zone between Finland and Russia.   

Would Finland win a potential court case in the ECtHR?

An important question is whether the ECtHR would make an exception in Finland’s case even if it concerned pushbacks. I find it quite unlikely based on the points mentioned above. It is nevertheless important to note that the ECtHR case law is not constant, and that the application of the emergency law would need to be tested in practice before it can be completely ruled out as contrary to international law by the court. The decree of control exercised by Russia may be so extensive that the ECtHR may have to take it into account. All of this is speculative, however.

Why the new emergency act is already invalid?

The Court of Justice of the European Union (CJEU) has firmly established the primacy and direct applicability of EU law when it comes to rights, liberties, and obligations. EU law and its principles are also a part of the inner core of the Finnish legal order and take primacy over the emergency law.

Primacy and direct applicability of EU law

EU law, like international law in general, takes primacy over national law for the Union to function correctly. Like it was stated in the legendary Van Gend en Loos decision (CJEU, 1963): “…according to the spirit, the general scheme and the wording of the treaty… must be interpreted as producing direct effects and creating individual rights which national courts must protect.” It was established in later cases that this primacy superseded even constitutions of Member States (CJEU, Solange I, 1970).

Why was it so crucial for the Finnish parliament to adopt an act that would be ipso facto inadmissible? Even though the law was adopted, from the perspective of EU law it was done in name only, not in effect. This is so because Finland cannot decide on the application of the concerning EU Treaty provisions. It is the job of the independent national courts and the CJEU. According to the case law of the CJEU, a state party breaching fundamental obligations under EU law can be challenged in national courts by an individual whose rights or liberties are being violated. There are no exceptions to this rule.

Would Finland win a potential court case in the CJEU?

It would be an interesting scenario if an asylum seeker, invoking certain EU rights, tried to sue the Finnish Border Guard in a Finnish district court: would the court find that the claimant lacked locus standi based on the emergency law? Most likely, yes. Would the Finnish Supreme Court have to ask for a preliminary ruling from the CJEU? This is highly unlikely, but it would almost certainly put an end to the application of the emergency law since the CJEU has a history of looking at cases through EU-coloured glasses. 

Of course, the Finnish government could try to go around these many issues by claiming that the matter falls under national security which is left entirely to Member States to deal with. Or maybe the decision-makers are counting on the fact that the situation would never escalate further? 

Nevertheless, despite multiple attempts, the new emergency law cannot fix the many issues it is plagued with. The CFEU creates rights for the asylum seeker and obligations to the Finnish Border Guard despite any Finnish national law. For this reason, the emergency law simply cannot be applied properly from a legal point of view.

A wider European solution to the rescue:

Not to completely hide behind a wall of legalese, I recognize that the border issue is potentially dangerous to Finnish national security as the movement of people is practically organized and tightly controlled by Russia, a hostile state actor. Russian authorities have been observed cooperating with smugglers and criminals to exploit vulnerable individuals. It is important to remind ourselves that migrants are also human beings and not some inanimate instruments of warfare.

It would be best to remain calm and discuss the issue with other European partners to uncover a possible and viable solution to this issue that is more in line with our EU rights. The Finnish government had previously received a green light from the European Commission concerning the adoption of the emergency act, but this is only a loose guarantee that the Commission will not challenge Finland in the CJEU any time soon.

There needs to be more preparation and planned countermeasures against the Russian hybrid warfare, but this new law is not one of them as it is not in line with fundamental EU rights and would eventually turn into an inane dead letter. Now that the law has already been adopted, I fear that the discussion around it is being swept under the carpet.

In conclusion, while the emergency law on migration aims to address hybrid warfare, it poses significant legal challenges concerning fundamental EU rights that cannot be ignored. A broader European solution, aligned clearly with EU rights and obligations, would be a much more effective way to respond to hybrid attacks both in practice and in accordance with the necessary legal principles. All in all, significant changes to the emergency law would nevertheless have to be made for it to be applied properly: more judicial remedies and means to avoid situations where pushbacks could occur are needed.