Norms Matter! The Role of International Norms in EU Policies on Asylum and Immigration

In: European Journal of Migration and Law

Abstract

This Article investigates how international norms impact on eu asylum and immigration policy. To this end we scrutinize the assumption that the robustness of international norms indicates the quality of eu integration. Drawing on international norms literature we argue that four characters define an international norms’ robustness: specificity in definition, binding force, coherence with domestic law and international law, and concordant understanding among actors. Our analysis covers three eu policy areas, asylum policy, family reunification policy, and labour migration policy. Across the three areas international norms had varying degrees of robustness at the time of eu negotiations. The findings show that presence and robustness of international norms on asylum or immigration regulation are reflected in eu legislation. Given that there are more robust norms available on questions of status than on reception conditions or asylum procedures, the qualification directive was much easier to agree on than the reception conditions or the asylum procedures directive which were much more characterized by hard bargaining. The international norm, right to family life, was sufficiently robust and was codified in eu law. However, both the international norm and the eu law do not provide for clear admission criteria. On labour migration, robust international norms with regard to equality provisions for migrant workers are mirrored in eu legislation on residence rights of migrants. With regard to conditions of admission, the absence of international norms indicates little to no eu legislation.

  • 1

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    J. Goldstein and R.O. Keohane (1993), Ideas and Foreign Policy: An Analytical Framework. In: J. Goldstein and R.O. Keohane (eds), Ideas and Foreign Policy. Beliefs, Institutions, and Political Change. Ithaca, ny: Cornell University Press, pp. 3–30; J.W. Legro, ‘Which norms matter? Revisiting the “failure” of internationalism’, 51 International Organization (1997) 31–63.

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    T.M. Franck (1990), The Power of Legitimacy Among Nations. Oxford: Oxford University Press; Legro (1997), see note 2; K.W. Abbott, R.O. Keohane, A. Moravcsik, A.-M. Slaughter and D. Snidal, ‘The Concept of Legalization’, 54 International Organization (2000) 401–420.

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    D.J. Bem (1970), Beliefs, Attitudes, and Human Affairs. Belmont, ca: Brooks/Cole Publishing, at pp. 16–17; Legro (1997), see note 2, at 33.

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    T.M. Franck (1990), see note 3; Legro (1997), see note 2; Abbott et al. (2000), see note 3; P. Slominski, ‘The Power of Legal Norms in the EU’s External Border Control’, 51 International Migration (2013) 41–53.

  • 9

    Legro (1997), see note 2, at 35.

  • 10

    Franck (1990), see note 3, at pp. 50–66.

  • 11

    Abbott et al. (2000), see note 3.

  • 12

    Ibid., 404.

  • 13

    Slominski (2013), see note 8.

  • 14

    Abbott et al. (2000), see note 3, at 404.

  • 16

    Franck (1990), see note 3, at 142.

  • 17

    Legro (1997), see note 2, at 35.

  • 19

    J.C. Hathaway (1991), The Law of Refugee Status, Toronto, ON: Butterworths, p. 125; G.S. Goodwin-Gill (1996), The Refugee in International Law, Oxford: Oxford University Press, p. 71; J.-Y. Carlier (1997), Who is a Refugee?, Leiden: Martinus Nijhoff, at p. 706; G. Noll (2000), Negotiating Asylum. The EU Acquis, Extraterritorial Protection and the Common Market of Deflection, The Hague: Martinus Nijhoff, pp. 515–521; Battjes (2006), see note 18, at p. 243.

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    G.S. Goodwin-Gill and J. McAdam (2007), The Refugee in International Law, Oxford: Oxford University Press, p. 524.

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    Goodwin-Gill and McAdam (2007), see note 20, at p. 525.

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    A.T. Aleinikoff (2011), International Legal Norms on Migration: Substance without Architecture. In: Kunz, R., S. Lavenex and M. Panizzon (eds), Multilayered Migration Governance. The Promise of Partnership, London: Routledge, pp. 467–479, at p. 469.

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    A. Kraler (2010), Civic Stratification, Gender and Family Migration Policies in Europe. Vienna: International Centre for Migration Policy Development.

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    E. Guild (1999), The European Convention on the Legal Status of Migrant Workers. An Analysis of its Scope and Benefits. Nijmegen: Centre for Migration Law, University of Nijmegen.

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    C. Roos (2013), The EU and Immigration Policies: Cracks in the Walls of Fortress Europe?, Basingstoke: Palgrave Macmillan, pp. 89–90.

  • 38

    Agence Europe (2001), Bringing Directive on Family Reunification into Question? European Coordination Expresses Fears for Foreigners’ Right to Family Life. Brussels, 8 May 2001.

  • 39

    Roos (2013), see note 35.

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    H. Schneider and A. Wiesbrock (2005), The Council Directive on Family Reunification: Establishing Proper Rights for Third Country Nationals?, In: H. Schneider (ed.), Migration, Integration and Citzenship. A Challenge for Europe’s Future. Volume II. The Position of Third Country Nationals in Europe. Maastricht: Forum Maastricht, pp. 35–69, at pp. 52–53.

  • 41

    Roos (2013), see note 35, at pp. 101–102.

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    A. Weber and A. Walter (2003), The Right of Protection of Family for Migrants in Europe: Access and Integration of Family Reunion, In: B. von Hoffmann (ed.), Towards a Common European Immigration Policy. Frankfurt am Main: Europäischer Verlag der Wissenschaften, pp. 227–239.

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    Agence Europe (2001) No Progress Made at JHA Council on Family Reunification. Brussels, 28 September 2001.

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    W.R. Böhning (2003), The protection of temporary migrants by conventions of the ILO and the UN. Workshop on Temporary migration: Assessment and practical proposals for overcoming protection gaps, Geneva: International Institute for Labour Studies, ilo.

  • 48

    As of March 2013, the icmw was ratified by 47 countries, ilo C 97 was ratified by 49 countries, and the ilo C 143 is ratified by only 23 countries. The Convention on the legal status of migrant workers of the Council of Europe was ratified by only 11 out of 47 states that are member to the organisation. Most eu Member States are not party to these agreements.

  • 50

    A. Betts and L. Cerna (2011), High-Skilled Labour Migration, In: A. Betts (ed.), Global Migration Governance. Oxford: Oxford University Press, pp. 60–77, at p. 67.

  • 52

    Roos (2013), see note 35, at pp. 175–178.

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