Migration. A challenge to international stability and respect for human rights
| Author | Dr. Claudia Elena Marinica |
| Pages | 151-160 |
Migration 151
MIGRATION. A CHALLENGE TO INTERNATIONAL
STABILITY AND RESPECT FOR HUMAN RIGHTS
Dr. Claudia Elena MARINIC
ABSTRACT
Remodeling the E.U. migration process and managing migration through a complex and
balanced approach are key aspects of the current EU policy; the international stability of E.U.
member states, including the E.U. itself, can be achieved mainly through responsibility and
solidarity. In this context, the protection of human rights, of the European values and of the
European principles of law represents a challenge to European societies in terms of international
stability and the need to develop coherent national and European policies. The cooperation for
eliminating discrimination, the development in areas such as free movement, education, health, labor
law, poverty reduction, human rights, reducing the negative impact on local communities, and
considering the phenomenon of migration as an opportunity for some local communities, as well, are
challenges that contemporary European societies have to overcome successfully, requiring long-term,
efficient solutions, which guaranteeing social cohesion at local and international level.
Keywords: migration policy, European Union, stability, solidarity, human rights.
Migration, as defined by the International Organization for Migration (IOM), is
a movement of a person or group of persons, either across an international border
or within a state, as a form of population mobility, which includes any kind of
movement of the population, regardless of duration, purpose or form. This
category includes: refugee migration, economic migration, and the migration of
people moving for other purposes or under the influence of other factors such as
family reunification1.
At international level, the phenomenon of migration is influenced by a
combination of economic, political, social and environmental factors, factors that
are also found at the level of the European Union, where the relative economic
prosperity and political stability have led to an increase in the interest of migrants
in this area.
As the Union motto („unity in diversity”) reflects a commitment to transnational
solidarity, combined with respect for national differences, „it is considered that” if
1 http://www.oim.ro/ro/resurse/glosar.
Law Review vol. III, Special issue 2017, pp. 151-160
152 CLAUDIA ELENA MARINICĂ
within the community goods, services and European citizens move freely, for those
coming from outside (people fleeing war, poverty or instability), the European
Union seems rather like a fortress protected by solid legal barriers2”.
In the analysis of the migration phenomenon3, it is necessary to proceed from
the „global approach in the matter of migration and mobility” adopted by the
European Commission in 2011, which set the general framework for the Union's
relations with third countries in the matter of migration, to continue with the
Strategic Guidelines of Legislative and Operational Planning within the Space of Freedom,
Security and Justice” for the period 2014-2020 period of June 26-27, 2014 (concerning the
transposition, application and strengthening of existing legal instruments and
measures) and the European Migration Agenda of May 20154.
Against the backdrop of recent events at European level, urgent action has
been taken to save lives, and the issues of solidarity and shared responsibility have
been addressed in the European Migration Agenda. The Agenda established an
essential system of EU measures. With a view to achieving a common and coherent
migration policy. A new, more European approach has been established as a
priority, based on the principles of shared solidarity and responsibility, considered
to be the only effective way for the EU to fulfill their international role and ethical
obligations towards those who fled persecution and war.
Along with the humanitarian approach, U.E. committed itself to doing everything
possible to secure the Union's external borders and the introduction of the final set of
emergency measures aimed at correcting the existing legal framework on asylum
considered to be dysfunctional when faced with the pressure of mass influxes of
refugees. (eg the intra – EU relocation of 40,000 people requiring international
protection, people in Italy and Greece, but also the extra – EU resettlement of 20,000
displaced persons with the same need for international protection).
Also, the Valletta Migration Summit, held in November 2015, the Guidelines on
the possibilities for reforming the Common European Asylum System and improving the
legal migration pathways of 6 April 2016 and, last but not least, the Malta Summit of
February 3, 2017, contributed to highlighting the need for the EU policy in terms of
migration to be revised.
The main orientations of the policy on migration refer to: the decrease of the
factors that encourage clandestine migration, a border management that to have as
its objective to save lives and ensure security, the development of a stronger common
asylum policy and the establishment of a new legal migration policy.
2 Constana Mtuşescu, Eu Migration Policy And Ethical Values. Short Critical Considerations, The
European Proceedings of Social & Behavioural Sciences EpSBS, Published by the Future Academy,
Volume XXVII, 2017, p. 393.
3 http://www.europarl.europa.eu/atyourservice/ro/displayFtu.html?ftuId=FTU_4.2.3.html.
4 Communication of the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions – A European Migration Agenda,
Brussels, 13.5.2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/
european-agenda-migration/background-information/docs/communication_on_the_european_agenda_
on_migration_ro.pdf.
Migration 153
These are important measures in the management of this phenomenon by the EU
as well as by states outside the EU (countries of origin and transit of irregular
migration flows), and at the same time they stress the need to strengthen the global
migration approach started in 2011 through optimal use of legal migration, by effective
border management and an as fair as possible distribution of asylum applicants
between EU countries, while respecting the fundamental rights of migrants.
Migration and asylum is a multidimensional, complex and continually evolving
policy area, both at international level and at EU level, and that requires equally
complex and multidimensional structures for its implementation5. There is a need to
regularly remind the Member States that mobility partnerships are necessary to be
implemented in a balanced way, including by placing more emphasis on the actions
related to legal migration, human rights and refugee protection6.
Proper management of migration policy, which is in a relationship of
interdependence with asylum policy, requires the responsibility and solidarity of the
Member States to co-exist and to take into account the need to ensure the protection
and promotion of fundamental rights, including those relating to personal data.
Appropriate management of migration policy is equivalent to the efficient management
of the resources allocated to the creation, implementation and enforcement of the
specific legal framework as well as of the involved institutions; at the same time, this
also implies the prevention of the risks determined by illegal immigration, trafficking
in migrants and trafficking in human beings. In practice, all Member States have to
provide support and the Member States that are under the strongest pressure must
consider as an absolute priority the objective of restoring an orderly process, in order
to return to a stable situation.
Decrease of the pace of economic growth and maintaining a high level of
unemployment in several Member States, the Brexit referendum that has brought
back to the present the identity crisis that has affected the European Union over the
last decade, the terrorist attacks and the current migration crisis challenge the
European values.
The year 2017 represents for the European Union a year of significant evolutions
for the phenomenon of migration, when it the was found that current crisis of
migration, which is the most serious one so far (accentuated in 2015 and 2016),
revealed, on the one hand, the legislative gaps and, on the other hand, the
shortcomings of the regulations issued up to now in the European migration policy.
The Malta Declaration of February 3, 20177 stressed the need for a critical
review of the EU policy in terms of return, and for an analysis on how national and
European instruments are applied.
5 The European Court of Auditors' Special Report on EU Expenditure by 2014 in the Eastern and
Southern Mediterranean Neighborhood Countries in the External Migration Policy, 2016, p. 60.
6 Ibidem, p. 19.
7 Malta Statement of Members of the European Council on the External Aspects of Migration:
Addressing the Central-Mediterranean Route of February 3, 2017.
154 CLAUDIA ELENA MARINICĂ
Also on the eve of the celebration of the 30th anniversary of the Erasmus
program, one of the most successful programs of the United Nations, it was
announced and launched as early as December 2016, the European Solidarity Corps8,
which offers young people aged between 18 and 30 years the opportunity to take
part in a series of solidarity activities throughout the United States.
The President of the European Commission, Jean-Claude Juncker, said: „More
than just a principle, solidarity is an essential state of mind that underlies what the
European Union means. The Solidarity Corps embodies this principle”. He said he was
proud of what the Corps represents and expressed his gratitude to all who join the
Corps and the organizations that offer placements to young people.
At the same time, in the next phase of the European Solidarity Corps, activities
such as solidarity investments (which will allow young people to carry out voluntary
activities for up to 12 months), internships (usually for periods of 2-6 months) and
placements for jobs (for periods of 2-12 months).
Volunteer teams will allow groups of 10-40 young volunteers from different
countries to produce an impact by working together for periods between 2 weeks
and 2 months.
It is considered that these actions will provide young people in Europe with
new opportunities to engage in practical solidarity activities that will help in the
strengthening of the local communities and to the inclusion of the categories of
disadvantaged young people in such projects, who may find it difficult to benefit
from placements abroad, but who still want to be socially involved.
In May 2017, the Commission wanted to honor its promise made at the
launching the European Solidarity Corps to present a proposal for a specific legal
basis, while proposing also a budget for the next three years. The independent legal
basis provides a single comprehensive financing instrument, with a clear set of
objectives, and all these regulations will take the form of a draft regulation that
must be adopted by the European Parliament and the Council so as to enter into
force on the date proposed by the Commission, namely on January 1, 2018.
In the document of the European Commission entitled State of the Nation – 20179,
under Priority 8 on a new migration policy, there are provided initiatives that
follow to be launched and/or finalized by the end of 2018, such as: the swift adoption
of the Common Reformed European Asylum System, based on responsibility and
solidarity, including the proposals on the reform of the Dublin system, the
establishment of a new asylum agency, the reform of the Eurodac system, the review
of the conditions of reception, the conditions that must be met in order to benefit
from international protection and the asylum procedure, as well as of the EU
resettlement framework.
8 https://europa.eu/youth/SOLiDARIty_ro.
9 Letter of Intent addressed to President Antonio Tajani and to the Prime Minister Jüri Ratas,
pp. 9-10, https://ec.europa.eu/ commission/sites/beta-political/files/letter-of-intent-2017_ro.pdf.
Migration 155
It is also sought the quick adoption of the proposal regarding the entry and the
residence of the third-country nationals for the purposes of highly qualified
employment („the Blue Paper Proposal”), a new migration management package,
including: mid-term evaluation of the European Migration Program, specific measures
to promote a more effective return approach; further promoting legal migration
paths by encouraging new commitments on resettlement; reforming the common
visa policy and maintaining EU solidarity with Member States facing exceptional
migration pressures.
Last but not least, the implementation of a legislative package on the consolidation
of the Schengen free movement area is also sought, including a proposal for updating
the Schengen Border Code, and ensuring the full integration of Romania and Bulgaria
into the Schengen area, as well as the quick implementation of the external investment
Plan and the implementation of the partnership framework on migration with the
main third countries of origin and transit.
Starting from the statements made by Jean-Claude Juncker, namely that we
must work closely together in a spirit of solidarity and that Europe must better
manage migration, in all its aspects by ensuring solidarity and fair sharing of
responsibilities, it can be said that migration policy must be based on stability,
solidarity and respect for human rights, all the aspects of migration having to be
taken into account, including: humanitarian obligations, asylum seekers, economic
migrants, smuggling and trafficking in human beings, development and stability
in non-EU countries, effective return policy and demographic challenges in Europe.
As far as return policy is concerned, it must be based on the creation of common
standards, which to guarantee a human return and to ensure the existence of fair
and effective procedures, while observing the fundamental rights and dignity of
each person.
In the last year, problems and responses to the migration situation in the E.U.
have directly affected several fundamental rights covered by the Charter of
Fundamental Rights of the European Union in areas of interest such as: safety and
protection at reception facilities, the impact on local communities, violence and
hatred against migrants, the situation of unaccompanied children.
At the same time, the vulnerability of migrants to different forms of violence,
exposure to forms of violence of institutional, economic origin, and the intersection of
various forms of discrimination call for a human rights broad approach, considering
the direct and immediate application of the principle of the universality of human
rights as the first mechanism for their protection and promotion.
Strongly criticized for its slowness, but also for the reason of human rights
violations, the EU's current migration policy aims to address the real problems of
migratory flows in its dual economic and political aspects, trying to bring the laws
of the Member States closer together, in order to provide solutions regarding both
the asylum and the economic migration. As far as asylum policy is concerned, it
must respond to the challenges in the matter of international protection, in order to
156 CLAUDIA ELENA MARINICĂ
ensure a solid link between responsibility and solidarity, on a voluntary basis, in
the field of asylum; thus, the Member States must comply with the E.U. acquis and
to provide support to those Member States which are facing temporary high
pressure on their asylum systems.
Respect for the democratic values of the solidarity, dignity and freedom that the
European Union has been built on, as enshrined in the Treaty of Lisbon – „respect
for human dignity, freedom, democracy, equality, the rule of law and respect for
human rights, the rights of the people belonging to minorities included” and further
asserting that „these values are common to the Member States in a society
characterized by pluralism, non-discrimination, tolerance, justice, solidarity and
equality between women and men” must go beyond the legislative frontiers and
find immediate application to this „crisis of migration” or even „humanitarian
crisis”. They must at the same time represent European values, but also universal
and national values and the stability of the peoples must be found in the will of
solidarity, tolerance and justice.
It is considered to be a crisis, not primarily because of the number of migrants,
but rather because it has caused the onset of a deep crisis within the E.U., the so-
called crisis of European identity. Among the reproaches addressed to the European
Union to avoid the crisis of European identity are the fact that the progress of
European construction is hidden behind citizenship and that with respect to the
Islamic terrorism a correlation is tried between the Muslim identity and excessive
immigration due exactly to the opening of the borders.
In doctrine10, the idea was promoted that Europe, and especially the European
Union (EU), need a new institution, a European Migration Protection Agency, an
institution with specific responsibilities, which to collectively meet the individual
obligations of the Member States with respect to the refugees and migrants, so as
„the system to be truly dedicated to international protection”. In the opinion of some
people (Guy S. Goodwin-Gill)11, although a number of EU agencies exist, the European
Asylum Support Office (EASO) and the Fundamental Rights Agency (FRA), in
charge with the matters related to the protection and migration of refugees, they can
play a role in monitoring the various measures proposed by the EU and its Member
States, but a more international approach is needed.
However, the creation of the Fundamental Rights Agency of the European
Union, which in 2017 has turned 10 years, has demonstrated the existing concern
for this area at the level of the European Union, whose objectives for the period
2017-2019 concern the strengthening of cooperation with national partners in order
10 Elspeth Guild - Does the EU Need a European Migration and Protection Agency?, International
Journal of Refugee Law, 2016, Vol. 28, No. 4, p. 585.
11 Guy S Goodwin-Gill, ‘Regulating “Irregular” Migration: International Obligations and
International Responsibilities’, Notes for a Presentation, University of Naples ‘L’Orientale’, 11 May
2015; and Keynote Address to the International Workshop, National and Kapodistrian University of
Athens, Faculty of Law, 20 Mar 2015.
Migration 157
to contribute to the political processes of fundamental rights at Member State level
and the strengthening of the cooperation with national liaison officers12. Thus, „in
the field of asylum, migration and internal security, the Union's operational agencies
in the field of justice and home affairs are increasingly called upon to support the
Member States of the Union through action in the field. Operational support is also
frequently required in areas sensitive in terms of fundamental rights, such as
border surveillance. In this respect, the FRA already has experience in the matter of
field research in crisis situations, expressing well-grounded viewpoints, materialized
and exploited by several thematic reports13”.
As regards mobility and the phenomenon of legal migration14, the current approach
envisages the adoption of legislative measures for each category of migrants in
order to develop a legal migration policy at EU level, as follows:
- Directive 2003/109/EC of the Council15, amended in 2011, regulates the status of
third-country nationals who are long-term residents in the European Union and
includes in its sphere of application the refugees and other persons enjoying a form
of international protection.
- Directive 2009/50/EC on the conditions of entry and residence of third-country
nationals for the purposes of highly qualified employment16 (introducing the „European
Blue Card”, a fast-track procedure for issuing a special residence and work permit,
offering more attractive conditions to third-country workers in order to allow them
access to a highly qualified job in the Member States) was taken into consideration
by the European Commission (2016) for review, due to the limited number of
Member States.
- Single Residence Permit Directive (2011/98/U.E.17), which establishes a common
and simplified procedure for third-country nationals applying for a residence and
work permit in a Member State and a common set of rights that have to be granted
to legal immigrants.
12 Irina Moroianu Zltescu, Human Rights - Present and Future in the European Union, Critical
Point magazine no.3/2017, http://www.punctulcritic.ro/irina-moroianu-zlatescu-drepturile-omului-
prezent-si-viitor-in-uniunea-europeana.html.
13 Ibidem.
14 14 http://www.europarl.europa.eu/atyourservice/ro/displayFtu.html?ftuId=FTU_4.2.3.ht ml.
15 Council Directive 2003/109 / EC of 25 November 2003 concerning the status of third-country
nationals who are long-term residents, published in the Official Journal of the European Union
L 16/44 of 23.01.2004, as subsequently amended and supplemented.
16 Council Directive 2009/50 / EC of 25 May 2009 on the conditions of entry and residence of
third-country nationals for the purposes of highly qualified employment, published in the Official
Journal of the European Union L155 / 17 of 18.06.2009.
17 Directive 2011/98 / EU of the European Parliament and of the Council of 13 December 2011
on a single application procedure for a single permit for third-country nationals for the purposes of
residence and employment within the territory of the Member States and a common set of rights for
third- third-country workers legally residing in the territory of a Member State, published in the
Official Journal of the European Union L43 of 23.12.2011, pp. 1-9.
158 CLAUDIA ELENA MARINICĂ
- Directive 2014/36/EC.18, which regulates the entry and temporary stay of
seasonal workers, facilitating the circular migration and protecting this particularly
vulnerable category of workers.
- Directive 2014/66/EC.19 on the conditions of entry and residence of third-
country nationals in the context of a transfer within the same company, facilitating
the temporary transfer of managers, specialists and trainees of the enterprises and
multinational companies to subsidiaries and branches located in the territory of the
European Union .
- Directive (EU) 2016/80120 on the conditions of entry and residence of third-
country nationals for research, education, training, volunteer services, pupil exchange
programs or educational projects and au pairs work should be transposed by May 23,
2018, replacing the previous instruments on student and researchers, expanding their
sphere and simplifying their application.
Regarding the phenomenon of legal migration, according to the Report released
in 2017 by the United Nations Migration Agency (IOM) entitled „Measuring the
Global Migration Potential 2010-2015”, which analyzes the global population migration
intentions for 2010-2015, shows that less than 0.5% of adults around the world (about
23 million) are actively preparing to emigrate across borders21. Half of those who
want to migrate live in just 20 countries, including Nigeria, India and R.D. Congo, so
that West Africa, South Asia and North Africa are the regions with the greatest
migration potential. This analysis of migration intentions can contribute to the future
development of future migration plans and forecasts.
At the same time, the UN New Agenda for Sustainable Development 203022 is
committed to help in eradicating the poverty and achieving sustainable
development by 2030. Migration and human mobility are included in four of the 17
sustainable development objectives, acknowledging the positive contribution of
migrants and the fundamental role of migration in the durable development
process. At the same time, full respect for human rights and human treatment for
migrants, regardless of their status, must be ensured. Thus, given that both climate
and political changes are factors that favor volunteer mobility on a larger scale and
18 Directive 2014/36 / EU of the European Parliament and of the Council of 26 February 2014 on
the conditions of entry and residence of third-country nationals for the purposes of employment as
seasonal workers, published in the Official Journal of the European Union L94, 28.3.2014, pp. 375-390.
19 Directive 2014/66 / EU of the European Parliament and of the Council of 15 May 2014 on the
conditions of entry and residence of third-country nationals in the framework of an intra-corporate
transfer published in the Official Journal of the European Union L157 of 27.05.2014, pp. 1-22.
20 Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the
conditions of entry and residence of third-country nationals for research, education, training,
volunteering, pupil exchange programs or educational and work projects au pair, published in the
Official Journal of the European Union L132, 21.05.2016, pp. 21-57.
21 https://reliefweb.int/sites/reliefweb.int/files/resources/gmdac_data_briefing_series_issue_9.pdf,
p. 3.
22 Agenda 2030 for Sustainable Development was adopted by the United Nations on September 25,
2015.
Migration 159
the emergence and development of the phenomenon of forced displacements, a
generator of pressure on the external borders, it is imperative for the U.E. to
strengthen dialogue and cooperation with countries where these phenomena occur
and develop.
This global approach seeks to strengthen the link between migration and
development and to focus on an effective migration management to be organized,
which to reflects the economic needs of the host countries, the development needs
of the countries of origin, as well as the rights of migrants23.
The Agenda is considered to be „the expression of an implicit theory of human
well-being, namely that human well-being will be ensured through a holistic
agenda of economic, social and environmental goals rather than an agenda limited
to just economic growth”, but also an implicit theory of happiness, which includes
poverty combating, promoting gender equality, emphasizing decent work for all24.
Overall, the right to happiness seems to be a determining factor in the decisions
underlying the migration phenomenon.
Ratification by U.E. of the Paris Climate Change Agreement, the measures of
which entered into force on 4 November 2016, the Conclusions of the European
Council on the Paris Agreement of June 2017, relating to the fact that „the Agreement
remains a cornerstone of the efforts made at the world level to effectively combat
climate change and can not be renegotiated” are measures that also affect the
migration policy. Thus, the U.E. commitment to quickly and fully implement the
Paris Climate Change Agreement highlights the enhanced EU co-operation with its
international partners, demonstrating solidarity with the future generations and
responsibility for the entire planet.
Last but not least, in terms of legal migration, Europe needs to develop
strategies to maximize and streamline legal migration opportunities, based on a
dialogue with the business community and the social partners, but also through
the implementation of integration policies to promote social cohesion and
economic dynamism and to prevent the social exclusion to which immigrants may
be exposed25.
Given that cross-border migration is a transnational phenomenon, beyond the
state being considered as the main actor entrusted with the protection of human
rights, the European Union has the same competence and perhaps even a greater
one, and the arbitrary application of certain laws seems to impede the effective
enforcement of legislation on human rights.
23 The European Court of Auditors' Special Report on EU Expenditure by 2014 in the Eastern and
Southern Mediterranean Neighborhood Countries in the External Migration Policy, 2016, p. 32.
24 The right to happiness. Fundamental human right. Chapter IV. Happiness and Sustainable
Development: Concepts and Evidence, author Jeffrey D. Sachs, I.R.D.O. Publishing House, 2016, p.67-68.
25 See Government Decision no. 780 of 23 September 2015 for the approval of the National
Immigration Strategy for the period 2015-2018 and the Action Plan for 2015 for the implementation of
the National Strategy on Immigration for the period 2015-2018, published in the Official Gazette of
Romania, Part I, no. 789 of 23 October 2015.
160 CLAUDIA ELENA MARINICĂ
People mobility will be an inherent feature of the 21st century, both at European
and global level, which implies the need to step up the EU policies in terms of
managing migration flows and integration policies for third-country nationals.
Certainly, with regard to human rights, there is the possibility of improving
performance by identifying more concrete measures to mitigate these flows, notably
by strengthening the humanitarian diplomacy and national referral mechanisms.
The next period will be enlightening about considering the policy on migration
as a cause of destabilization of the EU and one of the foundations of the European
identity crisis, or as a strengthening and streamlining of EU policies on migration,
asylum and respect for and promotion at the highest level of protection of human
rights and fundamental freedoms of those directly involved and affected by this
process, which to be based on the fundamental rights of migrants, on the principles
of solidarity, non-discrimination, non-refoulement and fair cooperation between
Member States.
