Juan Fernando López Aguilar (Las Palmas de Gran Canaria, 1961) is a veteran of Spanish politics. He was Minister of Justice between 2004 and 2007. His words resonate with a sense of concern for the rise in anti-Europeanism and europhopia in the supranational institutions.

From his almost empty office in the EU headquarters, this socialist member of the European Parliament egrets how migration and asylum matters create a division in Europe, in particular in countries such as Hungary and Poland.

Aware of the media impact of Carola Rackete, Òscar Camps and other human and refugee defenders, López Aguilar condemns the lack of solidarity and responsibility with countries such as Greece, Cyprus, Malta, Italy and Spain. To him, these countries are left alone in the management of the EU southern border and so, he is in favour of cooperation with third countries such as Morocco.

What is the situation of defenders in the EU?

As we have emphasised too many times, the EU is a union of values out of necessity, in a political period marked by a succession of crises with a deep and unprecedented impact in history. To face recession, the mistakenly called “refugee crisis”, the increase of liberal regimes, the sovereign debt, or even the Covid-19 pandemic, the EU does not need the euro or the domestic market but a set of common and binding values. The EU needs to be protected.

Do you think that the political polarisation is causing a shrinking in the civil space of the European Union in relation to migration and asylum rights?

Two aspects must be considered to answer that question. First, in terms of history, policies on migration and asylum rights were reserved to member states until very recently. However, when the Lisbon treaty and the EU Charter on Fundamental Rights came into effect over a decade ago, the nations and its governments no longer have powers on these matters. It’s a European competence, which is determining, even though some states seem not to be aware of it. At the European parliament we have developed the so-called migration and asylum packages for the states, with eight and nine legally binding acts respectively. However, this does not prevent states from breaching them, as unfortunately it happens day in and day out.

Second, migration and asylum are one of the most divisive issues in the European agenda, both from an ideological and a political and legal perspective. The nationalism displayed by the far-right within the European parliament, extremely anti-European and europhobic, is incompatible with the European reasoning.

Do you think these packages with measures are protecting migrant and asylum seekers defenders in Europe?

Without a doubt. That’s the prevalent approach, the legal seal of approval for the EU member states. The Lisbon treaty describes a space of freedom, justice and security governed by the principles of binding solidarity and shared responsibility. To achieve it, it sets up an interparliamentary conference led by the commission I preside over, aimed at discussing the articulation of both the European and the state levels.

We insist that this is the holistic approach until further notice, because the number of anti-European seats has increased significantly. Even so, the majority of the Parliament continues being pro-European. This means it has a global and holistic approach to migration that accounts for all aspects. From an exterior perspective, an approach that facilitates cooperation and provides humanitarian help, that uses diplomacy to correct inequalities and to create opportunities in the countries of origin and transit, thus preventing mafia exploitation. At the same time, it should act as a European mechanism of sea rescue and not as a mechanism of criminalisation of the NGOs, exposed to a twisted interpretation of the Directive on irregular migration and illegal human trafficking that is leading to a horrific balance of deaths.

What can the European Union do for the states not to apply the legislation in such a way that it goes against the people and collectives that defend migrants and refugees rights?

The short answer is through battle. Standing up, and acting accordingly. We demand accountability from the states that are breaking the European law grossly and deliberately, which happens very often. I highlight the importance of shared responsibility and binding solidarity. We must be ruthless in the confrontation with states that disassociate from solidarity such as Hungary and Poland, at the head of the list of unsupportive countries with Greece, Cyprus, Malta, Italy and Spain; places with access to the Mediterranean Sea and the Atlantic Ocean and therefore, with vulnerable borders.

The current situation is the result of a set of negative choices. One is that the EU member states can follow the European law in an extremely heterogeneous and unequal way. Another is that they can clamorously break the laws of solidarity, sea rescue, and safe landing, as well as the facilitation directive which was developed to give accomplices of human trafficking networks, and not rescuers, life imprisonment sentences.

This explains why Spain has never taken to the dock, not to say sentenced, any NGO for saving lives at sea and why Spain has one of the highest public investment rates in sea rescue resources. From the 23,000 migrants who arrived alive in the Canary Islands, only a tiny percentage did it on their own. 95% of them were rescued by the sea rescue services or the Civil Guard. In sum, while many countries invest public resources in saving lives, others want nothing to do with this matter. This is the reason why some NGOs, such as Open Arms, had to specialise, so to speak, in sea patrol. The risk of prosecution that exists in states such as Greece or Italy, does not occur in Spain. Spain has never taken anybody to the dock for saving lives. Still, the European Parliament has required the Commission to modify the article 1.2 from the directive on facilitation, as urgent as it is problematic.

In the case of Spain, the human rights defender Helena Maleno was investigated by Spain and this documentation was later sent to Morocco, which led to her deportation in January 2021. What is the position of the European Union on the prosecution of defenders like Helena Maleno, inside and outside European territory?

In general terms, the UE position is still the one crystallised in the resolutions of the European Parliament. And I insist that it includes the views of the pro-European majority that lives and breathes within the European Parliament, that forbids any persecution and criminalisation of humanitarian activists and organisations who defend human rights. We have dealt with this issue on a case-by-case basis, from Carola Rackete and Helena Maleno to Òscar Camps, leader of Open Arms. So they not only can continue working, but also carry on with their activism without any personal risk and without any shadow of suspicion.

It is true that once a legal procedure is initiated outside the EU, little the European Parliament can do other than showing empathy and solidarity and asking for the respect of human rights wherever they are put into question.

What are your views on the judicial cooperation between Spain and Morocco in the case of Helena Maleno?

It’s part of a judicial cooperation mechanism that cannot not be transferable from the European Parliament. We cannot ignore that at the moment there are many international agreements, conventions and legal frameworks between EU member states and third countries. Believe me that there is a good reason why Spain has a network of cooperation instruments with Morocco. It’s an inevitable and inescapable partner. It’s not just 14 kilometres away from the coast of Tarifa, but a fence away from Ceuta and Melilla. Spain is the only country of the EU with a land border with the African continent. So, to preserve our strategic interests, it is essential to have cooperation agreements and to respect the Kingdom of Morocco as an interlocutor.

Do you think that the current political polarisation is breeding ground against the work of migrants and defenders?

It’s convenient not to resort to oversimplifications. The twists and turns of the illegal migration routes, often blocked by illicit trafficking networks, are too complex to be reduced because, for a person, they can make the difference between heaven and hell. In my political experience as a jurist, every time I face a judicial process I encounter several versions that cannot be discarded just like that. When a legal cause causes concern or even outrage among certain groups of opinion, the response cannot be reduced to a complaint about the inequity of who is initiating the cause and the innocence of the defendant. The response must be articulated with more determination.

This persecution of solidarity is causing a shrinking in the EU civil society space. What strategies of resistance can be built to face this climate of criminalisation?

All these patterns of criminalization of solidarity should be understood in a European context of progressive reduction of the civil space, of restriction of the ability of the organisations to go out and defend rights. It affects all of us, not just the organisations who defend migrants, but it has a serious impact on those organisations who protect populations traditionally excluded or in situations of vulnerability, in this case migrants. We must analyse the situation from this perspective, so we can see this is a clear sign of the weakness of the rule of law and of all the values that the EU pretends to defend tooth and nail: solidarity, tolerance, equality, etc. It is important to keep on creating networks that sustain this civil space. As far as possible, organisations with institutional influence such as the OMTC must keep on putting pressure so we can understand that the reduction of the civil space cannot be allowed as it goes against the EU fundamental values. It is difficult to implement measures, and there are no easy solutions, but it is teamwork: if we keep on fighting all together to maintain this civil space, we can make changes.