THE COMMON SPACE OF FREEDOM, SECURITY, AND JUSTICE: THE ISSUES OF PERSONS’ MOBILITY.
Svetlana A. Anischenko, ‘R-US Expert Transit’ Center
People are mobile by their very nature, though the motives of their mobility have been changing throughout the history. Global processes boomed the integration, service and transport industries, thus facilitating international mobility. But since we are still living within the state boundaries, it is the law that divides our mobility on legal and illegal. It is the illegal migration that poses the greatest danger for persons’ and countries’ well-being. It is a common belief that the most effective way to tackle a serious international problem is cooperation. If actors want their cooperation to be effective they really have to work on the basis of certain structures.
What does “structure” mean? Structure consists of closely connected parts that have inner stability and steady relations between each other and work as a whole exerting an outer influence on other structures and being able to keep itself for a relatively long time under the influence of other structures. The parts or elements of structure are essential, indispensable and play their unique role for the functioning of the whole. The strength of the structure, its stability depends on the strength of the influence that it has on others. Is the EU a structure in this sense? Is it strong enough for cooperation? Can it be a base structure on which we need to cooperate in order to deal with the problem of illegal person’s mobility? And finally, what can this structure contribute to cooperation?
Cooperation between the EU and Russia in the sphere of freedom, security and justice is a relatively new direction of bilateral interactions; however its results, possible benefits and drawbacks can become already a matter of scrutiny. The countries aim at combating and preventing such illegal activities as trafficking in drugs, money laundering, organized crime, and corruption. Such outlawed kinds of person’s mobility as illegal migration and trafficking in people are also on this list.
If we suppose that the EU is a structure, then what are the parts of if? These can be individual countries, i.e. Members and their different categories (e.g. newcomers, accession countries, founding Members, etc.). Structure can also be split into specific spheres of the EU organism (political, commercial, educational, financial, etc.). In relation to illegal person’s mobility there are three spheres of vital importance – economic, judicial, and cultural. The member states are closely connected with one another and act as a whole in these vital spheres. All the members have long ago (13 years) agreed on the common economic and cultural policy, for example. There are no borders (in the traditional sense) between the Members. Moreover, the parts are spreading their influence on other countries and even citizens of non-members with Schengen visa can move freely within the EU borders. Therefore, one can assume that the EU is a steady, long-term structure with sufficient experience to exert its outer influence on its neighbours and cooperate with them solving difficult international problems, and the problem illegal person’s mobility in particular. However, these arguments can be easily opposed if we get at the root of the problem and the cooperation on it.
The idea of Partnership and Cooperation Agreement (PCA) is to establish and develop cooperation between the EU and Russia in several spheres. Let us first take the judicial part of the structure. The PCA presupposes that legal reforms are to be undertaken in Russia. In this sense, the EU will become a catalyst of such reforms and simultaneously a catalyst of creating civil society in Russia. On the one hand, the necessity of the reforms is not questioned. They are already or are about to be carried out. At the same time, it is understood that there are a number of problems which are to be taken into consideration in course of reforms (for example, illegal migration). The EU has a similar set of problems, so there is a way to solve them together. However, it is the EU that exerts its influence aimed at adjacent countries, and it is Russia that finds herself under such kind of influence. And here comes the challenge: one can agree that the EU might have a better judicial system concerning the point, but to what extend this influence can be accepted and tolerated as a norm? Theoretically speaking, any positive influence can quickly turn into obtrusion (bringing “democracy” to Iraq is a vivid example of such a controversial issue). Besides, the EU is now more sluggish and clumsy with its newcomers who also face problems with illegal persons’ mobility. So either we accept “help” from our slowed partners or we can both look for some new norms to attune our laws to.
Here we can also mention law-related issues. Firstly, on December 11, 2001, the EU reached a political agreement on a European Arrest Warrant valid for the entire territory of the Union. Its purpose is to facilitate law enforcement actions across the EU. The European Arrest Warrant takes the form of a judicial decision handed down by an EU Member State for the apprehension and return by another Member State of a wanted person to be prosecuted or to have a sentence or a detention order against a wanted person carried out. It will replace the traditional extradition procedure. The judiciary of the EU Member States will no longer have to go through the formal extradition procedure in order to forcibly transfer a person from one Member State to another to conduct a criminal prosecution or to execute a custodial sentence or detention order. On January 1, 2004 the European Arrest Warrant entered into force in eight of the fifteen EU Member States: Belgium,
Denmark, Finland, Ireland, Portugal, Spain, Sweden and the United Kingdom.
Secondly, both Russia and the EU have agreed to start negotiations on readmission. But Russian officials are rather skeptical about the program of returning illegal immigrants to the source country. As Vladimir Chizhov, Deputy Foreign Minister, holds it, “there is a risk for Russia to become a camp of deported from Europe without the analogous agreements with China, Kazakhstan, India, Vietnam, Afghanistan”
[1].
Two other important spheres go hand in hand with each other. These are of economic and cultural background. The first widely discussed point here is legalization of prostitution. Two out of three countries in the world where prostitution is legalized lie within the EU borders, namely the Netherlands and Germany. The idea that prostitution is mainly an economic phenomenon appears to substantiate the decriminalization of this act. However, as many experts prove, prostitution has also cultural basis (connected with men’s and women’s identity) that can’t be disregarded. Therefore, its decriminalization not only leaves economic problems unsolved, but also does not attempt to improve the social status of women. Legalization of prostitution enlarges uncontrolled sex-industry and does not save it from illegal activities anyway. As it was observed in the Netherlands, for example, it also contributes to even more active trafficking in people. As the only legal kind of prostitution there is that which makes a foreign prostitute prove the government that she is working only for herself, pimps teach prostitutes how to deceive the government and the same old story repeats. Suffice it to say that prostitution has always been considered as something immoral and intolerable.
Another important question also lies at the intersection of the spheres. This is the question of illegal migrants’ status in the source countries when neither of the sides seems to care for their rights and social comfort. In this sense the recent riots in France have become an outburst of the immigrant’s plight. In the analyses of the situation the voices divided between the "Muslim factor" and "ethnic conflicts", on the one hand, and a serious socio-economic crisis, on the other. “In fact, the causes of the crisis must be sought not in the areas of religion, culture or backroom political maneuvering. Around 150 years ago Europe was shaken by riots very similar to those we're seeing today… Just like the proletariat of the mid-19th century, today's working poor have few rights, no native country and nothing to lose but their chains. This huge group of people doomed to labor in low-paying jobs when they can find no work at all is naturally not distinguished by any particular loyalty to the state or respect for the law.”
[2]
Finally, there is a serious question of newcomers. Because of the long-term enlargement effects they actually may turn into a kind of time bomb. The EU binds the newcomers with strict conditions on justice, law enforcement, and illegal migration. But what may happen if a source country enters the union of destination countries? What will happen to the system when (and if) Turkey is accepted to the EU? It is always mentioned among the main source countries (along with Russia, Ukraine and Moldova), while the main destination countries are Germany, the Netherlands (legalized prostitution!), France and Austria. How much time do they need to strengthen the laws in this sphere? And if they succeed, will that laws work properly, when economically speaking the eternal demand always has its own rules? And what will happen to the Christian majority if a Muslim country enters there? Of course, these are the questions of future but we can’t ignore them because of their possible large-scale consequences.
This shows that the parts within the structure seem to fail to work closely on equal terms without drawbacks. Even the influence which the EU exerts on Russia can be questionable. The EU could become the source of legal reforms in Russia, but firstly it hasn’t adjusted everything within itself and secondly, the influence can quickly become obtrusion (in this context the situation with Kaliningrad seems to be an example). And if the EU tolerates double standards or will be able to tolerate them in future (like legalized and outlawed prostitution within one unity), how can it work out the standards for other structures?
Finally, the idea of cooperation is served under the dressing of transparency, which also has its own drawbacks. The partners claim for free exchange of problem-related information. This point can probably be the best and the most reasonable to implement, since both sides should be aware of the problem to deal with it. But here comes the main deceit: we are forgetting about the illegal character of the problem. Therefore, it is highly difficult to gather any kind of reliable information. And this is clear from any public report on the topic.
This is, for example what Europol writes about the number of people trafficked illegally (the most debatable point)
[3]:
“The estimations vary depending on different sources. For example, a recent US Government estimate indicated that worldwide, approximately 600,000–800,000 people are trafficked annually across international borders for sexual exploitation and forced labor; 70 percent are female and 50 percent are children
[4]. However, the Organization for Security and Cooperation in Europe has estimated that 1.2 million children (under 18 years of age) are trafficked throughout the world annually, bought and sold for exploitation in domestic and farm work, in mines and the commercial sex industry and being used for begging or petty crime
[5]. The IOM estimates that each year 500,000 women are trafficked to prostitution markets in Europe
[6]”.
The peculiarity of the problem is that the institutions in charge can’t obtain any sufficient data at all and that is why we can’t even measure the scale of the problem. In other related areas, some figures are annually published and considered to have some weight (for example, Transparency International and its Corruption Perception Indexes). So, on the one hand, the information exchange is supposed to serve to the maximum transparency and openness which are indispensable for full-fledged civil society, but on the other hand insufficient data can be misleading.
Similarly, there is no commonly shared definition of the phenomenon under consideration (not only in the Russia -EU relations but also worldwide). “Trafficking in people”, “illegal migration”, “smuggling of migrants” and others are terms used to describe it. The EU operates with concepts of “trafficking in people” and “smuggling of migrants”.
In accordance with the Council Framework Decision on combating Trafficking in Human Beings, the definition on Trafficking in Human Beings is:
“The recruitment, transportation, transfer, harboring, subsequent reception of a person, including exchange or transfer of control over that person, where:
(a) use is made of coercion, force or threat, including abduction, or
(b) use is made of deceit or fraud, or
(c) there is an abuse of authority or of a position of vulnerability, which is such that the person has no real and acceptable alternative but to submit to the abuse involved, or
(d) payments or benefits are given or received to achieve the consent of a person having control over another person for the purpose of exploitation of that person’s labor or services, including at least forced or compulsory labor or services, slavery or practices similar to slavery or servitude, or for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation, including in pornography”.
In accordance with the Council Directive on Defining the facilitation of unauthorized entry, transit and residence the definition of Illegal Immigrant Smuggling happens when:
“a) any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens;
b) any person who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens
[7]”.
However, Europol, being the EU’s law enforcement organization, defines the terms in a different way. As for Russia, the law against trafficking in people is torpedoed, and mainly the UN definition is in use, which is also debatable. Anyway, the partners obviously can’t combat trafficking in people unless they come to some certain common definition.
So what has the EU to offer for the framework cooperation?
- Does each of the part “know” its own role? Probably no, if we take into consideration the newcomers who are too fresh to claim for something distinctive.
- Do the parts work closely and smoothly? Most likely no, if we look at today’s France or Germany.
- Are all the parts and the products of interaction essential? Doubtfully, if we analyze the activities of Europol, for example.
Besides, there are even some dead ends in the cooperation with such a structure as the EU (the UN inclusion into the cooperation because the organization is now getting weaker and weaker). It is obvious therefore that the EU definitely has in mind preconditions on which Russia can base its cooperation on the problem of illegal persons’ mobility. The fact that we share common problems is underlined by the fact that we are united by common borders now. Besides the EU has a profound background of cooperation in deferent spheres. But the EU as a structure is rather weak so it would be for our mutual benefit if we complement it with some other structures in the process of cooperation. Of course in the multipolar world it is impossible to find a structure of absolute strength, that is why we need to combine forces and advantages of each other. That is why the EU is not and should be not the only actor that provides solutions for the problems.
It could be beneficial to engage some other related organizations in the work. For example, the involvement of International Labor Organization would be essential. Decriminalization supporters, who overestimate the economic factor in prostitution, underestimate its role in the reasons for illegal persons’ mobility upon the whole. In fact, the role is almost the leading one, and it means that economic motives of illegal migrants make it impossible to take labor factor into consideration. If we reduce our laws to a common denominator it is the labor legislation we should start with. However, the EU does not consider it necessary to include International Labor Organization, for example, into the program of cooperation. Meanwhile this organization has its own definitions and position on the point and could also contribute to the Program.
Human rights protection is also the point to be enforced. Therefore, such organization as Human Rights Watch could also contribute to the problem solving, especially against the background of the experience of the French riots.
As for upgrading the state of transparency, Transnational Crime & Corruption Center could attract its resources to deal with the frameworks problems. Taking it into consideration, the framework which is probably the first daring attempt of cooperation on governmental and nongovernmental levels to combat and prevent illegal activities, including illegal person’s mobility, could hopefully be saved. Using the experience of these international organizations and their recourses, the partners could together contribute to the increasing of protectability from the problem of illegal persons’ mobility and achieve the higher level of transparency, helping Russia to become a more open society and assisting the EU in correcting its possible inner structural failures.
(1) -
http://metal.antax.ru/library/policy/invest_idnc.htm
>>>
(2) - Riots in France, November 11, 2005, Boris Kagarlitsky
http://www.zmag.org/content/showarticle.cfm?SectionID=30&ItemID=9094
>>>
(3) - Europol Public Information. Legislation on Trafficking in Human Beings and Illegal Immigrant Smuggling. Europol 2005.
>>>
(4) - U.S. Department of State, Trafficking in Persons Report 2004 (
www.state.gov
) >>>
(5) - The Organization for Security and Cooperation in Europe (
www.osce.org
) >>>
(6) -
www.iom.org >>>
(7) - Europol Public Information. Legislation on Trafficking in Human Beings and Illegal Immigrant Smuggling. Europol 2005.
>>>
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