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7THE INTERNATIONAL LEGAL FRAMEWORK FOR THE REGULATION OF MIGRATION PROCESSES IN MODERN ERA (ON EXAMPLE OF EU)
Abstract
The relevance of this research at the moment is due to the fact, that human rights issues, including the sphere of migration processes regulation, are of great significance now. A comprehensive study of the international legal framework regulating migration processes in the modern era contributes to harmonization of the national systems of democratic states. The purpose of this paper is to study the stages of establishment and development of international law and European mechanisms for migration policy regulation. The role of international organizations is considered, and the main directions of migration processes are identified, that require to establish the boundaries of legal regulation. Both common international and European standards, as well as specially designed norms for national legislation to regulate migration, are analyzed.
Keywords
international legal regulation, international organizations, EU law, migration policy, migration problems, migrants' rights protection, refugee status, labor migration, illegal migration fighting
AUTHOR
Sergey Alexandrovich Kharlov
Graduate Student, Faculty of Law, Ural Institute of Management (branch) of the Russian Academy of National Economy and the State Service under the President of the Russian Federation. Ekaterinburg, Russia. E-mail: s.kharlov@mail.ru
1. Introduction
1.1. Problem setting
In the era of globalization, due to the threat of terrorism and mass movement of people around the world, the need to study the fundamental international and European documents, that fix the right to freedom of movement, is particularly important. This was one of the most important achievements in the field of human rights in the twentieth century. At the moment, the solution to the problems of illegal migration, regulation of refugee flows, border control and passport and visa regime is becoming particularly urgent, relying on international legal norms.
1.2. Sources of information
The main sources on this topic include such documents as the Universal Declaration of Human Rights from 10 December 1948, UN Convention "About the status of refugees" dated 28 July 1951, European Convention "About protection of human rights and main freedoms" from 4 November 1950, the Declaration "About human rights of individuals who
are not citizens of a state" from 13 December 1985, European Social Charter from 18 October 1961 and amended on 21 October 1996, and many others.
1.3. Historiography
By now, theory and practice of international law in the field of migration regulating have gained some experience, which requires deep studying and serious scientific analysis. The works on international and constitutional law highlight the theoretical prov'sions concerning migration as a constitutional basis for the legal status of an individual. A.S. Chesnokov in his monograph analyzes various international documents relating to political regulation in the migration field, paying attention to the conditions that contribute to the integration of immigrants into the host society. The use of statistical materials in this work is not only indispensable, but also the main bearing point in the proof of the author's viewpoint.
O.Yu. Potemkina through the treaties and the results of the EU commissions work studies European policy of regulating both illegal and legal migration. E.V. Kiseleva discusses the influence of accumulated data about migration flows on legislative activities in the field of its international legal regulation. The studies assembled in the journal "Migration Law" are worth noting. Those articles cover different aspects of the problem (works by E. N. Egorova, A. A. Avanesova, V. B. Pervozvansky, V. F. Kozlov and others). One of the most recent works on this topic is the article by K. A Tyurenkova and K. A. Muravieva. The authors, on the basis of the migration regularities studying and the identification of its main streams and types, make particular emphasis on comprehensive solution of the problem through interaction of national and international legal norms.
From the studies of foreign authors, it is necessary to note the works by G. Steiner, D. Forsyth, R. Strainz, devoted to international law, which considers the right to migration among the basic human rights. The works by N. Walter, H. Mundt, P. Scheffer, D. Wickham examine global migration in general and the European one in particular, the problem of people assimilation and the improvement of migration legislative management, the need for long-term concepts of migration policy.
Thus, some questions of international legal regulation of migration are studied by domestic and foreign science. However, there is no work, embracing and unifying all aspects of the problem, based on the most recent documents. This article may be considered as an attempt to do this.
2. Methodological basis
The methodological basis of this work is a systematic and comparative legal method based on the principles of chronology, historicism and objectivism. The main point is an interdisciplinary study approach, allowing to use a number of theories relating both to international law and other fields of scientific knowledge. It is worth noting that the analysis should be made from a position of political tolerance, tolerance for different lifestyles. This is due to the awareness of the need to streamline the attitude towards migrants on the base of human rights respect. Induction as a research method allows us to study global and European documents with the possibility of their application to national migration laws, deduction - to draw general conclusions on the basis of particular phenomena and aspects.
3. Results
Universal Declaration of Human Rights of 10 December 1948 formulated rights to migration as (Art.13) " the right to move freely and choose a place of residence within every state boundaries; the right to leave any country, including his own, to return to it."
Art. 14 provides that "everyone has the right to seek asylum, and enjoy asylum in other countries from persecution" (Universal Declaration of Human Rights, 1948).
The UN Convention 1951 "About the status of refugees" provides criteria for migrants' category determining. It gives clarification that its provisions are not applied to migrants if "there are reasons to assume that they have committed a crime against peace, a war crime or a crime against humanity, committed a serious non-political crime ... or are guilty of acts contrary to the purposes and principles of the UN"(UN Convention "On the Status of Refugees" 1951).
Another universal international instrument is the 1985 Declaration "About human rights of persons who are not citizens of a state." It establishes "the right of citizens to leave their own country, the right of free movement all over the world, the right to legal border crossing, the right to choose their country of residence (if there are no factors that make staying in the country illegal), the right to family reunification"(Declaration "On Human Rights of persons who are not citizens of the country ", 1985).
Along with universal international acts such documents have been taken at the European level. Legislative acts adopted by the EU and the OSCE reflect intense legislative activity. The most significant of these is the 1950 European Convention "For the protection of human rights and fundamental freedoms." It proclaims not only the principles of movement freedom, but also the grounds for restricting this right: "Everyone has the right to leave any country, including his own; no restrictions should be placed on the exercise of these rights except those which are provided by law and are necessary in a democratic society in the interests of safety, for the maintenance of public order, prevention of crime, protection of health or morals or for the protection of the rights and freedoms of others " (The European Convention "For the protection of human rights and fundamental freedoms," 1950).
Adopted by the European Union on October 18, 1961 "The European Social Charter" determined the content of national legislation concerning migration regulation. In 1996, it was revised, the rights of labor migrants and their relatives to protection, support and help were fixed.
Among other international legal acts adopted on a regional scale, supplementing migration policy, we should mention the following documents: EU 1957 Convention "About extradition"; EU 1959 Treaty "About cancelation visas for refugees "; EU 1977 Recommendation "About asylum right"; EU 1977 Declaration "About territorial asylum"; EU 1980 Treaty "About giving responsibility for refugees."
Along with legislative activity, it is important to note the role of international organizations in migration regulating. To discuss the problems of mass migration, the Brussels conference was summoned in December 1951, which set up the Intergovernmental Committee for migrants' movement. In 1952 it was transformed into the Intergovernmental Committee for European Migration, which was transformed in1989 into the International Organization for Migration (IOM). It is an independent intergovernmental organization and works on issues such as provision of assistance to Governments in fight against illegal migration, technical cooperation with government institutions in the management of migration flows, as well as in the implementation of programs of direct assistance to forced migrants.
The problems of international migration became especially urgent in the late 1980s - early 1990s. This is explained by its global scale and close relationship with integration processes. Reunification of Germany, collapse of the USSR, change of political regimes in
Eastern Europe, events in the Persian Gulf, civil war in Yugoslavia pushed people to mass migration. These problems, a prerequisite of which is respect for fundamental human rights and freedoms, can be divided into several groups:
1) Migratory flows prognostication;
2) Regulation of aspects related to the concept of "refugee", the use and development of the methods of struggle with attempts to abuse in this area;
3) Making struggle against illegal migration tougher;
4) Developing measures for the integration of immigrants through the compulsory study of laws, language, and other features of the receiving state.
The Maastricht Treaty from 1993, as one of its objectives, provides for removal of barriers to the labor market of the EU countries. According to this treaty, the problem of migratory flows regulation providing a huge range of issues (from the establishment of quotas and issuance of entry visas to the naturalization procedure or forced extradition out of the country) is in the competence of national states (Maastricht Treaty, 1993).
The necessity of harmonizing national migration legislation has led to the signing of Dublin Convention in 1989, according to which " a ban on political asylum in any country was adopted, if a similar request has already been denied in another country" (Dublin Convention, 1989). The Schengen Agreement, which came into force in 1995, provides for the strengthening of border controls in the EU and calls on participating countries to tighten the rules regulating migration flows.
The great norm-setting work related to refugees and illegal migrants was carried out by EU states, both in cooperation and separately. In 1990, in Paris European Convention "About security and cooperation" was signed. It set uniform rules in the field of fundamental human rights. "Refugees from countries where such standards are followed must be rejected to enjoy a political asylum in EU"(European convention about security and cooperation, 1990). On this basis, in 1991-1994, the vast majority of Eastern Europe and CIS refugees' applications for political asylum in the EU were turned down.
The Amsterdam Treaty, adopted in 1999 fixed the legal framework for cooperation among states in the field of asylum granting. On the basis of its provisions, they established united European system of asylum granting and adopted a number of the fundamental directives:
1) EU Directive № 2001/55 / EC "About minimal standards for giving temporary protection in case of a mass influx of displaced persons and on measures maintaining the balance and the efforts of member- states in connection with the admission of such persons and the consequences of such a reception";
2) EU Directive No. 2004/83 / EC "About minimal standards for qualification and status citizens of third states or persons without citizenship as refugees or persons in need of a different form of international protection and such protection ";
3) EU Directive No. 2005/85 / EC "About minimal standards for the procedures of member- states in giving and not allowing the refugee status".
In order to solve the problems associated with illegal migrants, the EU countries use the main groups of measures:
1) to transfer to the status of legal migrants if they satisfy certain requirements: the presence of passport, visa, medical documents attesting satisfactory state of health. (EU Directive 2002/90 / EC " About determining the assistance in unauthorized entry, transit and residence");
2) penalty measures for businessmen that employ illegal immigrants labor. These are less effective, since employers are interested in the presence of illegal immigrants, save on their wages, social benefits. (Decision 2002/946 / JHA "On strengthening criminal-law standards in order to punish the assistance in unauthorized entry, transit and residence").
At Helsinki Conference on Migration on 16-17 September 2002, the deportation of illegal immigrants from EU countries was mentioned as one of the priorities. Common strategical concept in the field of international migration was elaborated, it spelled out the rights and duties of the authorities and migrants, and also give a precise definition of legal migrants and illegal ones. Later, the EU directive "About common standards procedures to be applied by member states for deportation of illegally staying third-states citizens ", dated December 16, 2008 was worked out.
Equally important is the development of international legal instruments in the field of labor migration. The Convention "About all migrant workers and their families' members rights protection " dated July 1, 2003 is a treaty of universal character, devoted to the rights of migrants entering the country for the purpose of employment. This document fully regulates the whole process of migration from preparation to migration, departure, transit to returning back to his homeland, and covers the entire period of residence and employment.
Another direction of the EU migration policy was the program of attracting highly intelligent workers. The EU Directive from 2009 "About installing conditions of arrival citizens from third states who are looking for highly qualified employment " got the title of "European Blue Card" by analogy with the US Green Card. A competitor for it must have "high professional qualifications, that is, higher education diploma or work experience more than five years in a profession, requiring higher education "(Directive 2009/50 / EC, 2009). The "blue card" program is valid up to now, the lists of professions in demand are being composed for 2018.
Recent events (civil war in the south-east of Ukraine, "Arab spring") led to tremendous increasing of illegal immigrants and refugees flow to European countries in 2014-2015. Common EU's unpreparedness for their reception and livelihood maintenance caused the migration collapse, called the European migration crisis. It has become the largest in Europe since the Second World War. Modern EU politics in the field of asylum granting combines security of borders with the principles of fundamental human rights respect compliance. On the basis of European Commission reports (2015-2016), it is possible to define the following directions in migration crisis overcoming:
1) To provide better cooperation between states in migration control;
2) To redistribute refugee flows throughout the European Union. Countries are subjected to quotas for accepting a certain number of refugees;
3) To unify refugee admission procedures in all participating countries;
4) To fight against organized crime dealing with the transfer of illegal immigrants to Europe.
In 2017, measures to fight illegal migration (Recommendation of the European Parliament 2017/432, 2017) and to strengthen EU countries cooperation for the prevention of terrorist attacks (Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, 2017) found their further development.
Nowadays, immigration crisis is a global problem that is still far from its solution and requires further regulation with international legal practices.
4. Conclusion
Thus, cooperation between states in the regulation of migration policy got international detailed legal support. In recent decades, a significant number of international and European documents was ratified, that contributed to migration control. Development of international cooperation is necessary on such issues as the right to freedom of movement, state borders control, legal status of foreigners in the country, development of a uniformed procedure of refugee status granting.
The most effective in this respect is the EU law. Contemporary European international legal regulation adequately meets the needs of practice in such areas as international labor migration, extradition of illegal migrants to their home country, fight against illegal migration and criminal activities in the field of international migration. It is an object of national legislation systems in the field of migration policy to provide their harmonization and convergence with international and European standards, using them as a legal basis.
5. Discussion
This article was discussed at the conference "Problems of Economics, Management and Law", which took place on April 25, 2017 in UIA-RANEPA in Ekaterinburg. Its novelty was emphasized, including examination of the international documents ratified in the last few years and comprehensive analysis of this problem various aspects, unlike other researchers, choosing separate areas of migration policy; prospects - in unification and further harmonization of national legislations.
6. Recommendations
This work can be recommended for the study to students, graduate students of higher education institutions specializing in international law and other related fields. REFERENCES
1. International human rights instruments: Instr. coll. (2000) / Comp., Intr.art. V.A. Kartashkina, E. A. Lukasheva. Moscow: NORMA; INFRA. (753 p.)
2. Official website of the UN Agency for Refugees in the Russian Federation: the documents. URL: http://unhcr.ru/dokumenty.html (reference date 23.09.2017)
3. The official website of the European Commission: ETS and ETS. The URL : http : // www . coe . int / ru / of web / conventions / (reference date 09.23.2017)
4. Official site of the European Union: EU law. URL: https://europa.eu/european-union/law/treaties_en (reference date 23.09.2017)
5. Official Handbook of EU legislation: documents. URL: http://eur-lex.europa.eu/collection/eu-law.html (reference date 23.09.2017)
6. Official website of the United Nations: declarations, conventions, agreements, etc. URL: http://www.un.org/ru/documents/decl_conv/ (reference date 23.09.2017)
7. Walter, N. (2006) The era of great migrations of peoples Internationale Politik, 2 (11-14)
8. Mundt, H. (2005) Migration in times of globalization. Internationale Politik, 2 (32-39)
9. Potapov, V. (1996) Refugees and International Law. Moscow: International Relations. (101).
10. Potemkina, O. (2010) The immigration policy of the EU: from Amsterdam to Lisbon. World Economy and International Relations. 4 (42-51)
11. Scheffer, P. (2008) A closed society. Internationale Politik, 5 (50-57)
12. Tyurenkova, K.A., Muravieva K.A. (2017) Trends in the regulation of migration processes in the European Union: political and legal aspects. Studies in the Humanities, 1 (110-115).
13. Wickham, D. (2008) Make yourself at home, but do not forget that you are at a party. Internationale Politik, 5 (1923)
14. Chesnokov, S. A (2009) Regulation of migration policy in the second half of XX - beginning of XXI century. Ekaterinburg: Publishing House of Ural. Univ. (164).
15. Steiner, H.J. (2000). International Human Rights in Context Law, Politics, Morals. Oxford: Oxford University Press. (1497 p.)
16. Streinz, R. (1996) Europarecht. Bd. 12. Heidelberg: Muller. (391 S.)
17. Forsythe, DP (2006) Human Rights in International Relations. Cambridge: Cambridge University Press. (285 p.)
