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Chicago Journal of International Law

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332

Abstract

t This Article examines the recent proliferation of walls and fences in Europe, fueled by the Dublin Regulation’s failure to distribute responsibility for asylum seekers equitably among European states. Legal scholarship does not lack literature bemoaning the failures of the E.U.’s Dublin Regulation—which dictates, generally, that the country where an asylum seeker first enters the E.U. is responsible for processing his or her claim for protection. Yet scholarship on border walls and fences, and what induces European states to construct them, is not prominent in the literature. The critiques lodged against the Dublin Regulation have primarily focused on its futility and unworkability. This Article argues that Dublin has failed asylum seekers in a more insidious way—by catalyzing the construction of Fortress Europe. The actions of European states during the contemporary refugee “crisis” illustrate this phenomenon particularly well. Section II of this Article examines the contours of the international principle of responsibility-sharing; a principle that is supported throughout the history of refugee law as an ideal modality for managing refugee flows. Section III provides an overview of the Dublin Regulation and how it distorts the international responsibility-sharing principle and violates E.U. law requiring “solidarity and fair sharing of responsibility” among member states. Section IV traces the proliferation of border walls and fences in Europe around the height of the recent refugee crisis, arguing that the Dublin Regulation’s failure fueled European states to erect physical border barriers. It also explores the formidable combination of physical and legal barriers and how these mechanisms violate member states’ non-refoulement obligation. Section V analyzes proposals for improving Dublin, including efforts to better protect refugee rights and achieve a more equitable sharing of responsibility for protection seekers. This Article concludes by questioning how the E.U. can move forward and uphold the right of all persons fleeing persecution to seek and enjoy asylum in Europe.

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