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The Criminalization of Migration in Europe: The Way Ahead

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] T [/yt_dropcap]he contemporary world is fraught with trends directed at the criminalization of international migration (CoM). The modus operandi of migration management is replete with the flagrant violation of international refugee law (IRL) principles like non-refoulement that does not allow any person to be sent back to the territories inimical to his/her life, liberty and security.

CoM has pandered to many human catastrophes sans accomplishing the fundamental principles of IRL. It is, indeed, a well-established fact of international law that states are legitimate in controlling, securing and administrating their national borders while refusing the entry of people or individuals arriving from foreign lands. However, there are international instruments, agreements, and understandings where under rights of migrants, immigrants, refugees, asylum-seekers are protected on a binding basis. These international arrangements envisage non-discriminatory and rights-based procedures to seek asylum in another country. But, unfortunately, some migrants cannot claim refugee status even if they are involuntarily repatriated, deported or expelled to their homelands of persecution and economic calamities. On many occasions, a number of migrants live in the country of refuge for a long time and secretly earn their livelihood in the host countries. These migrants have their children in schools but they could not get themselves regularized in the host country and destined to live under clandestine conditions with the fear of being apprehended and deported by the law enforcement agencies.

In the present circumstances, far-right political trends and xenophobia have created a hostile atmosphere for the migrants in all countries. Therefore, migrants are being targeted and deported by the host governments under the quota system back to their turbulent countries. However, it must be noted here that irregular migrants do have human rights under international law. But there is no indication to criminalize the efforts to enter or stay in a country without any permission or visa documents. This retrogressive situation is exploited by the xenophobes and human trafficking syndicates. Consequently, such steps have put the right to seek asylum in jeopardy that would badly hit the refugees in the long run. Thus, the persons who were smuggled into a country of reception must not be perceived to have committed a crime. Under the international conventions, victims of human trafficking must be protected from any criminal liability. The protection of the rights of all migrant workers and members of their families who have been detained for violating the migration law must be separated from the convicted persons or persons with the pending trial. Migrant workers and members of their families are not criminals in these circumstances. Therefore, CoM is a measure disproportionate to the rights of a state to secure its national borders and territorial integrity otherwise criminalizing irregular migrants would tantamount to compare them with smugglers and human traffickers. Moreover, such a measure would cause ostracism, marginalization, and stigmatization of majority of the migrants.

Meanwhile, migrants have been making modest contributions in the development of the host countries in Asia, Canada, Europe, and North America, etc. but national governments treat immigration offenses as criminal acts instead of omissions of administrative nature. In many countries of Europe and member states of Council of Europe (CoE) and Pax-Americana, prisons are full of irregular migrants due to their being labeled as criminals. In these prisons, worst violations of human rights are rampant. Irregular migrants are subjected to live in degrading and inhumane conditions and picture is not very different in the detention centers. However, aliens are extremely vulnerable under the administrative confinement where they get highly abusive treatment. On the other hand, there is an emerging issue of demand of cheap labour that is primarily provided by the irregular migrants in the host countries of Southern Europe where in agricultural sector, a lot of migrants have been employed by the European landlords. In this backdrop, states should control irregular migration while taking into consideration the following aspects:

  1. That states must not contemplate new criminal offenses into municipal legal systems relating to entry, stay, and residence for migrants and must not overburden the existing judicial establishments.
  2. That the European judiciaries must not be subjected to confront the problems of the disproportionate duration of proceedings in violation of Article 6 of ECHR as European Court of Human Rights might flood with the greater amount of applications.
  3. That the host national governments must not overcrowd their jails and must not establish new detention facilities for irregular migrants as tagging them as criminals under national penal laws would require pre-trial and post-conviction detention facilities.
  4. That the detention of irregular migrants for eighteen months in EU member states under the Returns Directive that was adopted by the European Parliament must be harmonized in conformity with the European policies and values on the primacy of human rights, the rule of law and democracy.
  5. That Pax-Americana and European political establishment must realize the fact of human rights supremacy in administrative and governance affairs and nation-states must strive to conceive a long-term strategy for irregular migrants for their employment.
  6. That the migrants are a cheap labour in many parts of Europe and industrialized countries and they are in demand to perform all those jobs which are not preferred by the nationals of the host countries particularly agrarian jobs. But, unfortunately, working conditions in the agricultural field are not of European or global human rights standards; therefore, existing corrupt state of affairs needs a drastic improvement thereon.

There is an incremental, influential and proximal mobility in the contemporary world where irregular migration has been thriving beyond the simple understanding of deprivation, denial, and exclusion of migrants in the countries of origin. However, the migration is a pre-socio-political and perennial phenomenon of human peregrination that entails an infallible, indelible and multi-dimensional action by the nation-states. Though, there is a lack of transparent immigration mechanisms and procedures that cannot address the demands of different sectors where adequate labour is not available. It is interesting to note that in most European states immigration is still the most complex and intricate field of law owing to inter-alia the emergence of the far-right political nationalism.

Therefore, European countries should make efforts to streamline their immigration laws as per the guidelines followed by the UK government in its dealing with irregular migrants. Thus, it is incumbent upon the European member states to formulate clear and efficient immigration ways ahead out of irregular migration channels. All the members of Council of Europe must accede to the European Convention on the Legal Status of Migrant Workers that addresses the core aspects of the regular migration, migrant labour employment, working conditions, social support and medical benefits, etc. Now, it is, indeed, the most opportune time for CoE member states to ratify the International Convention on Migrant Workers (ICRMW) as the CoE countries have contributed in the drafting of this Convention that globally and comprehensively addresses the plight of regular and irregular migrants and establishes the fundamental human rights guarantees for them. It is imperative upon the CoE member states to ensure the full compliance with the ICRMW and its integration in their state policy, priority and practice on human rights.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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Europe

Europe tells Biden “no way” to Cold War with China

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Amidst the first big transatlantic tensions for the Biden Administration, a new poll shows that the majority of Europeans see a new Cold War happening between the United States and China, but they don’t see themselves as a part of it.

Overwhelmingly, 62% of Europeans believe that the US is engaged in a new Cold War against China, a new poll just released by the European Council on Foreign Relations found. Just yesterday US President Joe Biden claimed before the UN General Assembly that there is no such thing and the US is not engaging in a new Cold War. So, Europeans see Biden’s bluff and call him on it.

The study was released on Wednesday by Mark Leonard and Ivan Krastev at the European Council on Foreign Relations and found that Europeans don’t see themselves as direct participants in the US-China Cold War. This viewpoint is most pronounced in Bulgaria, Hungary, Austria, Portugal and Italy, according to the study. The prevailing view, in each of the 12 surveyed EU member states, is one of irrelevance – with respondents in Hungary (91%), Bulgaria (80%), Portugal (79%), and Austria (78%) saying that their country is not in a conflict with Beijing.

Only 15% of Europeans believe that the EU is engaged in a Cold War against China. The percentage is so low that one wonders if there should even be such a question. It is not only not a priority, it is not even a question on the agenda for Europeans. Even at the highest point of EU “hawkishness”, only 33% of Swedes hold the view that their country is currently in a Cold War with China.  Leonard and Krastev warn that if Washington and Brussels are preparing for an all-in generational struggle against China, this runs against the grain of opinion in Europe, and leaders in Washington and Brussels will quickly discover that they “do not have a societal consensus behind them”.

“The European public thinks there is a new cold war – but they don’t want to have anything to do with it. Our polling reveals that a “cold war” framing risks alienating European voters”, Mark Leonard said.

The EU doesn’t have the backing of its citizens to follow the US in its new Cold War pursuit. But unlike the views of the authors of the study, my view is that this is not a transatlantic rift that we actually have to be trying to fix. Biden’s China policy won’t be Europe’s China policy, and that’s that, despite US efforts to persuade Europe to follow, as I’ve argued months ago for the Brussels Report and in Modern Diplomacy.

In March this year, Gallup released a poll that showed that 45% of Americans see China as the greatest US enemy. The poll did not frame the question as Cold War but it can be argued that Joe Biden has some mandate derived from the opinion of American people. That is not the case for Europe at all, to the extent that most of us don’t see “China as an enemy” even as a relevant question.

The US’s China pursuit is already giving horrible for the US results in Europe, as French President Macron withdrew the French Ambassador to the US. The US made a deal already in June, as a part of the trilateral partnership with the UK and Australia, and stabbed France in the back months ago to Macron’s last-minute surprise last week. Max Boot at the Council on Foreign Relations argues that it is Macron that is actually arrogant to expect that commitments and deals should mean something: “Back in February, Macron rejected the idea of a U.S.-E.U. common front against China. Now he complains when America pursues its own strategy against China. What’s French for chutzpah?” What Boot does get right is that indeed, there won’t be a joint US-EU front on China, and European citizens also don’t want this, as the recent poll has made clear.

The US saying Europe should follow the US into a Cold War with China over human rights is the same thing as China saying that Europe should start a Cold War with the US over the bad US human rights record. It’s not going to happen. You have to understand that this is how ridiculous the proposition sounds to us, Europeans. Leonard and Krastev urge the EU leadership to “make the case for more assertive policies” towards China around European and national interests rather than a Cold War logic, so that they can sell a strong, united, and compelling case for the future of the Atlantic alliance to European citizens.

I am not sure that I agree, as “more assertive policies” and “cold war” is probably the same thing in the mind of most Europeans and I don’t think that the nuance helps here or matters at all. Leaders like Biden argue anyway that the US is not really pursuing a Cold War. The authors caution EU leaders against adopting a “cold war” framing. You say “framing”, I say “spin”. Should we be in engaging in spins at all to sell unnecessary conflict to EU citizens only to please the US?

Unlike during the first cold war, [Europeans] do not see an immediate, existential threat”, Leonard clarified. European politicians can no longer rely on tensions with China to convince the electorate of the value of transatlantic relations. “Instead, they need to make the case from European interests, showing how a rebalanced alliance can empower and restore sovereignty to European citizens in a dangerous world”, Mark Leonard added. The study shows that there is a growing “disconnect” between the policy ambitions of those in Brussels and how Europeans think. EU citizens should stick to their sentiments and not be convinced to look for conflict where it doesn’t exist, or change what they see and hear with their own eyes and ears in favor of elusive things like the transatlantic partnership, which the US itself doesn’t believe in anyways. And the last thing that should be done is to scare Europeans by convincing them they live in a “dangerous world” and China is the biggest threat or concern.

What the study makes clear is that a Cold War framing against China is likely to repel more EU voters than it attracts, and if there is one thing that politicians know it is that you have to listen to the polls in what your people are telling you instead of engaging in spins. Those that don’t listen in advance get the signs eventually. At the end of the day it’s not important what Biden wants.

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Germany and its Neo-imperial quest

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In January 2021, eight months ago, when rumours about the possibility of appointment of Christian Schmidt as the High Representative in Bosnia occurred for the first time, I published the text under the title ‘Has Germany Lost Its NATO Compass?’. In this text I announced that Schmidt was appointed to help Dragan Čović, the leader of the Croatian HDZ party, to disrupt the constitutional structure of Bosnia-Herzegovina and create precoditions for secession of the Serb- and Croatian-held territories in Bosnia and the country’s final dissolution. I can hardly add anything new to it, except for the fact that Schmidt’s recent statements at the conference of Deutsche Atlantische Gesellschaft have fully confirmed my claims that his role in Bosnia is to act as Čović’s ally in the latter’s attempts to carve up the Bosnian Constitution.

Schmidt is a person with a heavy burden, the burden of a man who has continuously been promoting Croatian interests, for which the Croatian state decorated him with the medal of “Ante Starčević”, which, in his own words, he “proudly wears” and shares with several Croatian convicted war criminals who participated in the 1992-1995 aggression on Bosnia, whom Schmidt obviously perceives as his ideological brethren. The question is, then, why Germany appointed him as the High Representative in Bosnia? 

Germany’s policy towards Bosnia, exercised mostly through the institutions of the European Union, has continuously been based on the concept of Bosnia’s ethnic partition. The phrases that we can occassionaly hear from the EU, on inviolability of state boundaries in the Balkans, is just a rhetoric adapted to the demands by the United States to keep these boundaries intact. So far, these boundaries have remained intact mainly due to the US efforts to preserve them. However, from the notorious Lisbon Conference in February 1992 to the present day, the European Union has always officially stood behind the idea that Bosnia-Herzegovina should be partitioned along ethnic lines. At the Lisbon Conference, Lord Carrington and Jose Cutileiro, the official representatives of the then European Community, which has in the meantime been rebranded as the European Union, drew the maps with lines of ethnic partition of Bosnia-Herzegovina, along which the ethnic cleansing was committed, with 100.000 killed and 1,000.000 expelled, so as to make its territory compatible with their maps. Neither Germany nor the European Union have ever distanced themselves from the idea they promoted and imposed at the Lisbon Conference as ‘the only possible solution’ for Bosnia, despite the grave consequences that followed. Nor has this idea ever stopped being a must within their foreign policy circles, as it has recently been demonstrated by the so-called Janša Non-Paper, launched a couple of months ago, which also advocates the final partition and dissolution of Bosnia-Herzegovina. Such a plan is probably a product of the powerful right-wing circles in the European institutions, such as Schmidt’s CSU, rather than a homework of Janez Janša, the current Prime Minister of Slovenia, whose party is a part of these circles, albeit a minor one. To be sure, Germany is not the original author of the idea of Bosnia’s partition, this author is Great Britain, which launched it directly through Lord Carrington at the Lisbon Conference. Yet, Germany has never shown a will to distance itself from this idea, nor has it done the European Union. Moreover, the appointment of Schmidt, as a member of those political circles which promote ethnic partition as the only solution for multiethnic countries, testifies to the fact that Germany has decided to fully apply this idea and act as its chief promoter.

In this process, the neighbouring countries, Serbia and Croatia, with their extreme nationalist policies, can only act as the EU’s proxies, in charge for the physical implemenation of Bosnia’s pre-meditated disappearance. All the crimes that Serbia and Croatia committed on the Bosnian soil – from the military aggression, over war crimes, ethnic cleansing and genocide, up to the 30 year-long efforts to undermine Bosnia’s sovereignty and territorial integrity – have always had a direct approval and absolute support of the leading EU countries. During the war and in its aftermath, Great Britain and France were the leaders of the initiatives to impose ethnic partition on the citizens of Bosnia-Herzegovina, and now Germany has taken up their role. In such a context, the increasing aggressiveness of Serbia and Croatia can only be interpreted as a consequence of the EU’s intention to finish with Bosnia for good, and Schmidt has arrived to Bosnia to facilitate that process. Therefore, it is high time for the citizens of Bosnia-Herzegovina to abandon any ilussions about the true intentions of the European Union and reject its Trojan Horse in the form of the current High Representative.  

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Should there be an age limit to be President?

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The presidential elections in Bulgaria are nearing in November 2021 and I would like to run for President of Bulgaria, but the issue is the age limit.

To run for President in Bulgaria a candidate needs to be at least 40 years old and I am 37. I am not the first to raise the question: should there be an age limit to run for President, and generally for office, and isn’t an age limit actually age discrimination?

Under the international human rights law standard, putting an age limit is allowed in the context of political participation under the right to vote and the right to run to be elected. Human Rights Committee General Comment No.25 interpreting the International Covenant on Civil and Political Rights states that an age limit has to be based on objective and reasonable criteria, adding that it is reasonable to have a higher age requirement for certain offices. As it stands, the law says that having an age limit for president is not age discrimination, but is 40 actually a reasonable cut-off? National legislations can change. We need to lower the age limit and rethink what’s a reasonable age for President, and not do away with all age limits.

We have seen strong leaders emerge as heads of state and government who are below 40 years of age. Sanna Marin, Prime Minister of Finland, became Prime Minister at 34. Sebastrian Kurz, the Prime Minister of Austria, was elected at 31. Jacinda Ardern, Prime Minister of New Zealand, assumed her position at 37. So perhaps it is time to rethink age limits for the highest offices.

The US has plenty of examples where elected Senators and Congressmen actually beat the age limit and made it despite the convention. The age limit for Senator in the US is 30 years old. Rush Holt was elected to the US Senate at 29. In South Carolina, two State Senators were elected at 24 years old and they were seated anyways. The age limit for US president is 35 years old.

In Argentina, the age cut-off is 30. In India, it is 35. In Pakistan, it is 45 years old. In Turkey, it is 40 years old. Iceland says 35 years old. In France, it is 18.

Generally, democracies set lower age limits. More conservative countries set the age limit higher in line with stereotypes rather than any real world evidence that a 45 year-old or 55 year-old person would be more effective and better suited to the job. Liberal countries tend to set lower age limits.

40 years old to be a President of Bulgaria seems to be an arbitrary line drawn. And while it is legal to have some age limits, 40 years old seems to be last century. Changing the age limit for president of Bulgaria could be a task for the next Bulgarian Parliament for which Bulgarians will also vote on the same date as they vote for President.

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