asylum in europe: states, the european union and the international system

ASYLUM IN EUROPE: STATES, THE EUROPEAN UNIONAND THE INTERNATIONAL SYSTEM1

Andrew GeddesSchool of Politics, University of Liverpool

Introduction

The asylum system is a point at which international human rights meetsovereign nation states. The right to determine who enters the state terri-tory is a key aspect of national sovereignty constrained by an internationalsystem guaranteeing the rights of asylum seekers and refugees. Yet, acrossEurope since the 1990s the right to asylum has been questioned. The cate-gory of the so-called "bogus asylum seeker' has become a salient feature ofthe politicisation of asylum. Since the mid-1980s, the EU has also begun toplay a greater role in the development of asylum policy and now providesan institutional setting residing between EU member states and the inter-national system. The EU is an intermediary position between states andthe international system. What does its role in the area of asylum andrefugee policy tell us about the relation between nation states and theinternational system? Analysis of recent developments in the EuropeanUnion (EU) can help illustrate contemporary trends in the politics of asy-lum in an integrating Europe and the relative influence of states and inter-national standards. This article explores the recent development of EUasylum policy, examines explanations for this 'shift' to Europe, and askswhether an EU level "political opportunity structure' could help NGOsinfluence the developing EU asylum policy frame in a direction that ismore accommodating of the rights of asylum seekers. The main argumentis that asylum in Europe demonstrates the continued resilience of nationstates. The use of the EU as a new 'institutional venue' by the memberstates has led to a policy frame that has been largely dominated by inter-governmental concerns. These have centred on the restriction of forms ofmigration defined by state policies as 'unwanted', such as asylum. Thatsaid, the Amsterdam Treaty (which came into effect in May 1999) couldprovide scope for a more progressive policy frame. As will also be shown,NGOs have sought to exploit opportunities presented by the AmsterdamTreaty to press for the empowerment of EU institutions such as theCommission, European Court of Justice and European Parliament. Thisstems from the belief that more powers for these institutions could help

1 This article has been developed from a talk given at the 6* International HumanitarianConference organised by Webster University, Geneva, April 5-6, 2001.1 am grateful toProfessor Otto Hieronymi and the student organizing committee for inviting me to thisevent

Refugee Survey Quarterly, VoL 20, No. 2, 2001 © UNHCR 2001

at Uppsala U

niversitetsbibliotek on Novem

ber 16, 2014http://rsq.oxfordjournals.org/

Dow

nloaded from

http://rsq.oxfordjournals.org/

60 Conference Papers

secure more progressive policy outcomes offering protection for the rightsof asylum seekers. The EU thus emerges as a crucial area of contestationbetween states and the international system with some capacity to shapeboth.

The article's next section sketches some aspects of the recent devel-opment of EU asylum policy. This is followed by analysis of explanationsfor this 'shift to Europe. I compare and contrast explanations offered by'post national' and 'state centred' scholars of international migration. Thenext section explores the activities of pro-migrant/asylum NGOs at EUlevel and looks at the political opportunities available to them and thekinds of arguments for expanded EU competencies that are advanced.I then conclude by assessing the ELPs role as an intermediary institutionbetween states and the international system.

Recent developments in EU policy

The aim of this section is not to examine in great detail the particulari-ties of EU asylum policy. Rather, it is to set the scene for the followingsection that explores the timing, content and form of EU immigrationand asylum policy cooperation and integration. In terms of the recenthistory of policy development, the post-Single European Act period(after 1987) saw the drafting of the Dublin Convention determining thestate responsible for the examination of an asylum application. The fateof the Dublin Convention illustrated the difficulties securing cooperationin international law via a convention rather than through the use ofsupranational law that would have permitted directives or regulationspossessed of direct effect. The Dublin Convention did not actually enterinto force until 1999 (for an assessment of implementation see DanishRefugee Council, 2001). The 'informal intergovemmentalism' of the post-SEA period also saw a series of measures such as those defining 'safethird countries' and the establishment of an information exchange,CIREA.

The (Maastricht) Treaty on European Union (ratified in 1993) cre-ated a Justice and Home Affairs pillar that brought immigration and asy-lum within the EU, but did so within a 'securitised' policy frame, whichmeant that the normative and factual understanding of immigration andasylum were linked to perceptions of threat rather than possible bene-fits. The reliance in the post-Maastricht period on intergovernmentalcooperation and non-binding instruments impaired the effectiveness ofpolicy cooperation, widened the democratic deficit, and was criticisedfor an emphasis on lowest common denominator, restriction-orientedpolicies. A key point, however, is that these post-Maastricht arrange-ments were not the express choice of the member states. Rather theywere the outcome of an intergovemmental decision-making environmentwithin which the preferences of the more reluctant member states suchas the UK needed to be accommodated and within which theCommission was largely powerless. The Maastricht arrangements did

at Uppsala U



Dow

nloaded from


Refugee Survey Quarterly, VoL 20, No. 2, 2001 61

not so much represent a choice for Europe as an intergovernmentalfudge. Simultaneously, of course, the Schengen arrangements that wereoutside of the formal Treaty structure provided a laboratory for thedevelopment of ideas about free movement in a frontier-free Europe withcompensating immigration and asylum measures.

The Amsterdam Treaty sought to rectify some of these problems.It proclaimed the EU to be 'an area of freedom, justice and security'.Amsterdam also brought immigration and asylum from the JHA pillar toa new Title IV of the Treaty where the issues would reside alongside freemovement of people in the community pillar with enhanced (althoughwith limitations) jurisdiction for the Commission, European Court ofJustice and European Parliament. The member states did bring the reas-suring paraphernalia of intergovernmentalism with them with unanimityas the basis for decision-making until at least 2004. The member stateswill also share the power of initiative with the Commission, thus reduc-ing the Commission's ability to shape policy. Indeed, the British MEPwho chairs the European Parliament's committee on citizen's freedomsdescribed Title IV as 'the ghetto of the First Pillar'2. Amsterdam also laida legal base for 'reinforced cooperation' whereby a smaller group ofmember states can push ahead to integratdve objectives in a Europe ofVariable geometry'. The UK, Denmark and Ireland promptly opted out ofTitle IV arrangements.

Despite these limitations, the Tampere meeting of EU heads ofgovernment held in October 1999 declared that 'the separate butclosely related issues of asylum and migration call for the developmentof a common policy'. The European Commission was charged withthe task of bringing forward policy proposals in these areas. In a bid tostimulate discussion the Commission published two Communicationsin November 2000 covering the areas of immigration and asylumpolicy (CEC, 2000a, 2000b). The Tampere meeting also asked theCommission to establish a 'Scoreboard' to monitor progress towardsthe attainment of policy objectives set by the Amsterdam Treaty,the post-Amsterdam 'Action Plan' of 1998 and the Tampere summitmeeting conclusions. With regards to asylum, the member states haveset the targets of:• Full application of the Geneva Convention and maintenance of non-

refoulement• A common asylum procedure and a uniform status for refugees• Limitations on secondary movements by asylum seekers• The establishment of a temporary protection regime based on soli-

darity among member states.

1 Graham Watson MEP, Chair of the European Parliament Committee on Citizen'sFreedoms and Rights, Justice and Home Affairs, in evidence to the House of LordsSelect Committee on the European Union, published in A Community Policy onImmigration, Session 2000-1, 13" Report, HL Paper 64, p. 9.

at Uppsala U



Dow

nloaded from


62 Cortference Papers

Progress towards these targets has, however, been slow. As theCommission acknowledged in its update of the Scoreboard for the firsthalf of 2001, the timetable has already slipped, although the Commissionpledged to present before summer 2001 a set of proposals on the definitionof a common immigration and asylum policy (CEC, 2001). The question,however, remains: why have these competencies developed and what doestheir development tell us about the relationship between states, the EUand the international system.

Asylum, nation states and the international system

The relative resilience or redundancy of EU member states has become abone of theoretical and empirical contention for students of Europeanmigration. In one corner is a school of thought that can be labelled as•post-national' for whom the key argument is that the international orderof sovereign nation states has been fundamentally transformed by global-isation and the development of transnational social and political relations.EU member states find themselves bound by an international order, aneffect of which has been to constrain their capacity to control theirborders while also to some extent empowering migrants because of theimpact of rights extended by international legal standards (see forinstance, Sassen, 1999; Soysal, 1994; Jacobson, 1996). Moves towardsdeeper European integration represents a further erosion of core nationstate functions with regards to border control and the mediation of mem-bership and belonging. Sassen (1999: xx) argues that 'much as states haveresisted and found it incompatible with their sovereign power, they havehad to relinquish some forms of border control and have had to acceptcourt rulings which support the human rights of immigrants and the civilrights of their citizens to sue their own government'. This is not equivalentto arguing that nation states have become redundant Rather, the EU hasbecome 'a testing ground for the relationship between the national stateand supranational or transnational actors' (Sassen, xx). This post-nationalapproach possesses strong functionalist logic with an air of inevitabilityabout policy development because single market integration and broaderglobal economic and political change are seen as having reshaped the uni-verse of sovereign nation states.

The post-national approach has weaknesses. These have been high-lighted by those scholars of international migration who fall into an oppos-ing 'state centric' camp (see for example, Freeman, 1998; Joppke, 1998;Guiraudon, 2000; Hollifield, 2000). From this perspective, European inte-gration in the areas of immigration and asylum has strengthened not weak-ened the member states because it has enhanced their ability to controltheir borders, a key aspect of state sovereignty. Post-national perspectivesare criticised for imputing a teleological, federalising inevitability to the'process' of European integration without paying close attention to thecontingent nature of this process or the member states' ability to actas gatekeepers and limit the powers ceded to supranational institutions.

at Uppsala U



Dow

nloaded from


Refugee Survey Quarterly, Vol. 20, No. 2, 2001 63

A distinct feature of EU immigration and asylum policy is that the memberstates have kept a tight grip on the process with power held by the Councilof Ministers with small-to-vanishing roles for the Commission, EuropeanParliament or European Court of Justice, although Amsterdam couldchange this. A second weakness with the post-national perspective is thatlegal and political processes that extend rights derived from internationalsources to immigrants are emphasised. Yet, as the French political scien-tist Virginie Guiraudon (1998) has shown, the immigration policies ofEU member states have been far more constrained by domestic legal deci-sions and bureaucratic processes than they have by international legalstandards that can be difficult to enforce. The effect is that EU memberstates have found their sovereignty to be internally constrained by domes-tic legal and political factors rather than externally constrained by inter-national standards. Or as Joppke (1998) puts it, the very liberalness ofthese liberal states constrains them rather than an international order (seealso Hollifield, 1992). In these terms, the EU can be better understood asan attempt to consolidate a regional economic bloc as both a response toand a reaction against globalisation. As such, it marks an attempt to erecta boundary between itself and surrounding states and regions while main-taining a distinction between its own citizens (to whom rights areextended), third country nationals (to whom they are not), and asylumseekers (who receive an increasingly frosty reception).

The post-national approach steers an analytically progressive courseby highlighting the impact of the international system, as well as its cre-ative potential to establish new forms of legal and political behaviour thatconstrain nation states. The state centred approach heads in an analyti-cally conservative direction by highlighting the continued resilience ofnation states. The core state centric proposition is that EU member stateshave, in a sense, escaped to Europe'. EU cooperation has reinforced theirability to achieve domestic policy objectives centred on the restrictionof 'unwanted' immigration. New EU 'policy venues' for immigration andasylum cooperation allow states to avoid domestic legal and politicalconstraints that inhibited their ability to restrict 'unwanted' immigration(Guiraudon, 2000). The German asylum compromise of 1993 has been putforward as a good example of this 'escape to Europe' (Joppke, 1998). TheBasic Law of the Federal Republic of Germany contained asylum provi-sions that were liberal by European standards in that they recognised theright of the asylum seeker to make an asylum application rather than theresponsibility of the state to consider the application. The 1993 asylumcompromise between the governing centre-right coalition and the opposi-tion Social Democrats brought German practices into line with commonEuropean measures such as the definition of 'safe countries' and fast trackrejection of unfounded applications. Germany used an emerging Europeanpolicy frame as a way of maintaining the commitment to asylum of Article16 of the Basic Law while making it more difficult for asylum seekersto actually enter the state territory. In this case, European cooperation

at Uppsala U



Dow

nloaded from



allowed Germany to avoid the unique impediments imposed upon it inrelation to asylum by the Basic Law. In these terms, European cooperationstrengthened the German state's ability to control access to the stateterritory.

It has been argued that the origins of the 'escape to Europe' can actu-ally be traced back a little earlier to the early 1980s. At this juncture,domestic constraints on restrictive policies became clear via a series ofjudicial interventions in France, Germany and the Benelux countries thatinhibited the restrictive capacity of governments (Guiraudon, 1998).Cooperation at EU level was also attractive to executive authorities in themember states because European cooperation strengthened executives,particularly interior ministries, at the expense of legislative and executiveauthority. The Commission, European Court of Justice and Parliamenthave been granted very little autonomy in these areas thus allowing themember states to keep a tight grip on policy and diminish the scope forunintended outcomes. The result has been, as James Hollifield puts it, thatimmigration and asylum policies have been 'externalised' through policycooperation at EU level. This cooperation allows member states to pursuetheir domestic policy objectives by other means3. Hollifield also arguesthat liberal states will prefer this escape route because the alternative is toroll back the rights of their resident foreign populations, which is likely tobe legally and politically untenable4.

This state-centred line of reasoning offers powerful explanations forwhy, when and how states sought this 'escape to Europe', as well as for thenormative and factual understanding of migration issues that underpin asecuritarian policy frame and restrictive policies. It also appears to beslightly counter-intuitive in that it argues that supranational cooperationcan actually strengthen rather than weaken states. This, however, is not aparticularly novel observation as Milward's classic book on Europeanintegration has shown (revealingly entitled The European Rescue of theNation State). Member states can, for instance, maintain a symbolic com-mitment to the right of asylum while using European cooperation as adevice for ensuring that asylum seekers have diminished ability to accessadjudication procedures in member states by entering the territory ofthose states.

There are two drawbacks with the state-centred approach. The first isthat it is institutionally thin'. It emphasises a tightly controlled delegationof authority by the member states with little scope for autonomy for supra-national institutions or for European integration to prompt iterative formsof cooperation and collaboration that begin to changes the preferences

' The Schengen agreement is a classic example of extra territorial control. It hashelped to create buffer states, and to shift some of the burdens and dilemmas of controloutside the jurisdiction of liberal states in western Europe', Hollifield (2000: 110).

4 'Ideas, Institutions and culture, as well as certain segments of civil society, whichmay resist encroachments by the state on negative and/or positive freedoms, imposelimits of control' (Hollifield (2000: 110).

at Uppsala U



Dow

nloaded from



and identities of actors involved in the emerging European political field.The second is that it is static. The state-centred approach appears toexplain the post-Maastricht arrangements with entrenched intergovern-mentalism. But the extent to which the post-Amsterdam setting challengesthis state-centred picture is an important question. The Amsterdam Treaty,the Vienna Action Plan of 1998, the Tampere conclusions and theCommission's communications on immigration and asylum point in thedirection of a more supranationalised policy with a greater role for theCommission, European Court of Justice and European Parliament At thevery least, this suggest that the EU should not be seen solely as an 'exter-nal venue' to which member states 'escape' without also thinking aboutthe scope for EU competencies to feed back into domestic contexts in adeeper and soon-to-be wider EU6. They also point to an EU level institu-tional terrain that might offer opportunities for NGOs to advance the causeof asylum seekers. In the next section I develop this point by exploring theactivities of pro-migrant NGOs that argue for a policy frame that is moreinclusive of the rights of asylum seekers. By doing so, I develop somepoints about the resources available to groups that mobilise at EU leveland the 'structure' of political opportunities.

New political opportunities at EU level?Political activity by pro-asylum NGOs can be understood as structured bythe conceptual and organisational frame that configures EU policy in thisarea By this I mean that it is given meaning by material and symbolicresources that steer it in certain directions and emphasise certain kinds ofpolitical action. Pro-migrant lobby groups are thus provided with an 'insti-tutional repertoire' related to the prevailing sources of Europeanised legal,political and social power (Soysal, 1994). The legal, political and socialfoundations of the EU have the effect of 'channelling' political action.At the same time, EU institutions, particularly the Commission, have aninterest in stimulating political action addressed at EU institutionsbecause this can both enhance the legitimacy of decision-making if keyinterests are consulted while also bolstering the Commission's legitimacy.In fact, a distinct feature of much EU level lobbying is that NGOs seek tobuild alliances with EU institutions. The result has been that pro-asylumadvocacy is channelled through an institutional context which has a strongtechnocratic (via the Commission) and legalistic (via the European Courtof Justice) ethos that privileges epistemic (knowledge-based), networksco-ordinated though Brussels-based 'umbrella' organisations such as theEuropean Council on Refugees and Exiles (ECRE).

These umbrella organisations have the potential to constitute whathave been called 'transnational advocacy networks'. These are composedof activists bound by 'shared values, a common discourse, and dense

5 EU widening is of course a key aspect of current debates. See, for instance,Lavenex, 1999; Vachudova 2000; Lavenex and Ucarer, 2002.

at Uppsala U



Dow

nloaded from



exchanges of information and services' able to draw from 'resource rich'international organisations seeking feedback effects into domestic con-texts (Keck and Sikkink, 1998). Recent work on protest politics has iden-tified the ways that the formation of transnational advocacy networksallows 'resource poor* actors at national level - women's movements,human rights campaigners and environmental campaigners - to seek newopportunities with international organisations that can provide transna-tional venues for the protection of interests. These points are interestingbecause it has been suggested that access to the kinds of resources pos-sessed by international organisations such as the EU can cause some kindof 'boomerang effect' that strengthens national level actors by allowingthem to draw from supranational practices and discourses. As a result, theEU can become a new venue for claims making by pro-asylum advocatesand can help stimulate the development of new standards, practices andnorms. Yet there also appears to be a basic problem with this perspective.In the areas of immigration and asylum policy, the EU does not appear tobe a particularly 'resource rich' haven for 'resource poor' pro-migrant/asy-lum organisations. EU competencies are limited. The member states are inthe driving seat In fact, it has been argued that the EU provides 'weakweapons for the weak' (Guiraudon, 1999). There is a discursive context atEU level where ideas about inclusion, democratisation and protection ofrights acquires some meaning, but the extent to which this is backed bylegal and political resources that can sustain claims for protection remainsthe key question.

Political opportunities may, therefore, be limited. If we are to thinkabout where these opportunities might arise for those groups that seek tomake claims on behalf of asylum seekers then six criteria can be identifiedas relevant(i) The receptiveness of the EU to the advocacy strategies of pro-

migrant/asylum NGOs claims for inclusion. The potential for recep-tiveness can connect with the point made above, i.e., the desire of EUinstitutions to enhance their legitimacy by strengthening consultationprocesses and building pro-European integration alliances with inter-est groups. But will the Commission be so keen to promote the inter-ests of asylum seekers when evidence from EU member states sug-gests that such people are not the most electorally popular of causes?In fact, empirical analysis of European countries of immigration sug-gests that technocratic and legalistic EU level processes may be morereceptive to protecting the rights of asylum seekers than decisionsmade in the full glare of public scrutiny. It has been argued thatbureaucratic and judicial arenas have been the venues for decisionsthat have extended legal and social rights to resident foreigners(Geddes, 1998).

(ii) The availability of access points. In an article on migrant interestrepresentation in the EU I identified overlapping technocratic(Commission), democratic (European Parliament) and judicial

at Uppsala U



Dow

nloaded from



(European Court of Justice) avenues to representation and influ-ence for pro-migrant lobby groups (Geddes, 2000). This suggeststhat there are various routes that groups could follow as they seekto influence the content of policy. Also, as emphasised above, tech-nocratic and judicial venues may be more accommodating of therights of asylum seekers compared to legislatures where anti-immi-gration sentiment may be more evident. The other side of the coin,however, is that decisions made in relatively shielded bureaucraticor judicial arenas may lack legitimacy and contribute to problemsfurther down the line.

(iii) The institutional motivations of EU level actors are also important.Analysts of the Commission have spoken of a certain pre-dispositiontowards task expansiveness' and 'purposeful opportunism' (Majone,1996; Cram, 1994). The Commission does appear to have had its wingsclipped in the 1990s for various reasons, but still maintains a key rolein the areas of free movement, immigration and asylum, albeit onethat it shares with the member states.

(iv) Resources Many EU level pro-migrant lobby groups receive financialsupport from the EU. The EU Migrants' Forum, for instance, was nota grassroots expression of concern about EU policy; it was explicitlycreated by the Commission for consultative purposes. This is not thecase for all pro-migramyasylum groups, but many do face the problemof being small organisations when compared to groups representingother diffuse interests such as consumers, women's groups and envi-ronmentalists.

(v) Hierarchy and discipline EU level pro-migrant groups tend to be'umbrella' organisations that seek to bring together the interests ofsub-national and national organisations. This can lead to the problemthat a reliance on horizontal co-ordination at EU level can be a 'weaksubstitute for consolidated formal organisation at national level(Streeck, 1996: 85).

(vi) Potential institutional ambiguities The EU and its member statesare of course committed to the respect of human rights. How couldthey do otherwise? Yet, in the area of asylum there is an ambiguitywhen the Commission's role is examined. A survey of theCommission's role in the JHA areas suggested that the Commissionwas keen to secure a place for itself at the intergovernmental negoti-ating table during the 1990s at a time when member states sought touse EU cooperation as a method for developing restrictive policies(Monar, 1994). The Commission can be torn between its attempts tobe a policy entrepreneur in immigration and asylum and policy out-comes that would be regarded by pro-migrant NGOs as progressive.That said, the belief that underpins the development of EU level pro-migrant advocacy is that more powers for supranational institutionsmeans greater scope for progressive policy outcomes that protectasylum seekers' rights.

at Uppsala U



Dow

nloaded from



The most prominent EU level pro-migrant lobby groups such as theStarting line Group (SLG), the European Union Migrants Forum (EUMF)and ECRE call for more powers for the Commission, Court and Parliamentand thus argue for more not less European integration. They tend not tothink that European integration will build the so-called 'fortress Europe'.Rather an enhanced role for the EU is seen as a potential corrective to low-est common denominator intergovernmental decision-making.

In the area of asylum an enhanced role for the EU means the pursuitof provisions that accord with international legal standards and that protectthe rights of asylum-seekers and refugees. This has also led to a criticalstance towards policies of restriction pursued by EU member states. Sincethe 1990s these restrictive policies have contained two elements. First, anexternal dimension that centres on the use of measures such as fast-trackprocedures and the definition of safe countries that reduce the ability ofasylum seekers to enter the territory of EU member states and thus make aclaim for asylum. The internal element is newer and centres on the use ofwelfare state deterrence with asylum seekers placed outside of the 'com-munity of legitimate receivers of welfare state benefits' because of thebelief that many are actually "bogus' (Bommes and Geddes, 2000).

There was an attempt in the run-up to the Amsterdam Treaty to con-solidate the activities of pro-migrant NGOs. The Commission also soughtto consult widely with affected societal interests because of the MaastrichtTreaty's legitimacy problems. An NGO network was established onEuropean Refugee, Asylum and Immigration Policy composed of AmnestyInternational, Caritas Europe, the Churches Commission for Migrants inEurope (CCME), ECRE, the EUMF and the SLG. The UNHCR attendedmeetings as an observer. The network also received support from othermembers of the ElTs NGO network: the European Citizen Action Service(ECAS), Federation Internationale des Droits de 1'Homme, Jesuit RefugeeService Europe, Quaker Council for European Affairs and the Red Cross-EU Liaison Office. Many of the most influential and active pro-migrantgroups are human rights (Amnesty International, European Council onRefugees and Exiles) or church-based organisations (Caritas, ChurchesCommission for Migrants in Europe) that possess moral authority withassociated symbolic capital that can be used to back their claims. By oper-ating at European level and addressing European sources of legal, politi-cal and social power, these groups reproduce their own relevance andunderline the importance of a rights-based dimension associated withEuropean integration (Geddes, 2000).

ECRE is the main umbrella organisation for national refugee councilsand similar organisations. ECRE expressed disappointment with theAmsterdam Treaty, which was as a technical transfer from the third to thefirst pillar without supranational checks such as Commission involvement,powers for the ECJ and greater EP involvement Amnesty International alsopaid special attention to EU asylum provisions and argued that the 1996-97IGC was 'a unique opportunity for the European Union to pay concrete

at Uppsala U



Dow

nloaded from


Refugee Survey Quarterly, VoL SO, No. 2, 2001 69

attention to human rights protection' (Amnesty International, 1996: 2).Existing protection of asylum-seekers' rights was seen as inadequate, par-ticularly in the light of the 'safe third country* and other provisions put inplace by EU member states. Amnesty's pre-IGC memorandum (1996: 9-10)argued that: The downward spiral of the member states policies towardsthe minimum common denominator does not afford sufficient protectionfor those in need. More and more restrictive national measures on asylumhave been adopted over the past six years in many member states.Amnesty International opposes this downward spiral which appears tohave no bottom'. Amnesty detected a continued gap in the AmsterdamTreaty between EU provisions and international standards. This brings usback to the key question raised in this article's introduction: the interme-diary position of the EU between states and the international system. DoesEU asylum policy reflect the resilience of the nation state and the use ofthe EU by the member states a s avenue for the attainment of national pol-icy objectives or is the EU a new and potentially progressive arena wherenew non-national forms of rights-based politics can be established. Pro-migrant NGOs clearly believe that the latter route is a possibility, but, ashas also been shown, the motivations of institutional actors at EU level(NGOs and supranational institutions) can lead to coalescence into pro-integration coalitions. This makes the point that its important to look atboth the claims made by these groups and to explore underlying institu-tional motivations and their relation to the ELTs political opportunitystructure.

Conclusion

In this article's introduction I conceptualised the EU as being in an inter-mediary position between the member states and the international systemand also argued that the asylum system is particularly interesting becauseasylum is a point at which the sovereign authority of states meets con-straints imposed by international human rights standards. On this basis,I explored two competing perspectives on the development of EU asylumresponsibilities. A post-national viewpoint points to a growing redundancyof nation states in the face of transnationalised economic, political andsocial relations that question core nation state functions such as bordercontrol and the mediation of membership and belonging. I then contrastedthis with a state centred approach which argues that the analytically pro-gressive post national argument lacks empirical substantiation and that afar better account of the development of EU immigration and asylumpolicy can be developed if the interests of member states are explored.More particularly, the development of domestic legal and political con-straints on restrictive immigration policies led executive authorities in keymember states to look to European level cooperation as an 'escape'option. EU level cooperation occurred in secretive, intergovernmentalforums with little scope for judicial and/or legislative scrutiny. The state-centred account offers a powerful explanation for policy development

at Uppsala U



Dow

nloaded from



It does however, provide us with an institutionally 'thin' and static accountof policy development I argued that the EU cannot simply be seen as anexternal venue to which member states escape in order to allow themto achieve their domestic policy objectives. I suggested that the post-Amsterdam legal and political context raises the possibility of commonimmigration and asylum policies that empower supranational institutions -albeit in a Europe of variable geometry with some member states in andothers out I then looked at the role of pro-migrant NGOs as transnationaladvocacy groups that seek to make pro-rnigramVasylum arguments withinthe EUs distinct and unique institutional setting. It was shown that theseNGOs and EU institutions, particularly the Commission, can form mutuallyreinforcing pro-integration alliances where 'more' not 'less' Europe is thesolution to the various inadequacies of EU policy as it has developed. Thepost-Amsterdam setting is a critical juncture during which the role of theEU as an intermediary institution between nation states and the interna-tional system will become more clearly delineated. Whether the memberstates are resilient or are becoming increasingly redundant as a result ofthis process remains an open question. Evidence so far seems to points totheir resilience, which has serious implications for the international asylumsystem.

References

Amnesty International (1996) Amnesty International's Memorandum.Proposals for a Strengthened Protection of Human Rights by the EU inthe Context of the Intergovernmental Conference, Brussels: AmnestyInternational.

Bommes, M. and Geddes, A. (eds.) (2000) Immigration and Welfare:Challenging the Borders of the Welfare State, London: Routledge.

Commission of the European Communities (CEC) (2000a),Communication from the Commission to the Council and the EuropeanParliament, Towards a Common Asylum Procedure and a UniformStatus, Valid Throughout the Union, for Persons Granted Asylum,COMM (2000) 755 final.

Commission of the European Communities (CEC) (2000b),Communication from the Commission to the Council and the EuropeanParliament, On a Community Immigration Policy, COMM (2000)757 final.

Commission of the European Communities (CEC) (2001), Communicationfrom the Commission to the Council and the European Parliament,Biannual Update of the Scoreboard to Review Progress on the Creationof an Area of "Freedom, Security and Justice" in the European Union,COMM (2001) 278 final.

at Uppsala U



Dow

nloaded from



Cram, L. (1994) The European Commission as a multi-organization: socialpolicy and IT policy in the ELF, Journal of European Public Policy 1(2):195-217.

Danish Refugee Council (2001), The Dublin Convention: Study on itsImplementation in the Fifteen Member States of the European Union,Copenhagen/Brussels: Danish Refugee Council/European Commission.

Freeman, G. (1998) The decline of sovereignty? Politics and immigrationrestriction in liberal states', in C. Joppke, Challenge to the Nation State:Immigration in Western Europe and the United States, Oxford: OxfordUniversity Press, pp. 86-108.

Geddes, A. (2000), Immigration and European Integration: TowardsFortress Europe?, Manchester Manchester University Press.

Guiraudon, V. (1998), International Human Rights Norms and theirIncorporation: The Protection of Aliens in Europe, European ForumWorking Paper EUF No. 98/4, Robert Schuman Centre, EuropeanUniversity Institute, Florence, Italy.

Guiraudon, V. (1999) Weak Weapons of the Weak? TransnationalMobilization Around Migration in the European Union, San GiacomoCharitable Foundation Working Paper Series, 99/7, Ithaca; CornellUniversity.

Guiraudon, V. (2000), 'European integration and migration policy: verticalpolicy-making as venue shopping', Journal of Common Market Studies,38: 2, pp. 251-71.

Hollifield, J. (1992), Immigrants, Markets and States, Cambridge (Mass.):Harvard University Press.

Hollifield, J. (2000), 'Immigration and the politics of rights: the French casein comparative perspective', in Bommes and Geddes, op. cit, pp. 109-33.

Jacobson, D. (1996), Rights Across Borders: Immigration and the Declineof Citizenship, Baltimore: Johns Hopkins Press.

Joppke, C. (1998) 'Asylum and state sovereignty: a comparison of theUnited States, Germany, and Britain, in C. Joppke (ed.) Challenge to theNation State: Immigration in Western Europe and the United States,Oxford: Oxford University Press, pp. 108-52.

Keck, M. and Sikkink, K (1998) Activists Beyond Borders: AdvocacyNetworks in International Politics, Ithaca (NY): Cornell University Press.

at Uppsala U



Dow

nloaded from



Lavenex, S. (1999) Safe Third Countries: Extending the EU Asylum andImmigration Policies to East and Central Europe, Budapest: CentralEuropean University Press.

Majone, G. (1996) Regulating Europe, London: Routledge.

Monar, J. (1994) The evolving role of the Union institutions in the frame-work of the third pillar1, in J. Monar and R. Morgan (eds.), The Third Pillarof the European Union, Brussels: European Interuniversity Press, pp. 69-83.

Sassen, S. (1999), Quests and Aliens, New York: The New Press.

Soysal, Y. (1994) Limits of Citizenship: Migrants and Post-NationalMembership in Europe, Chicago: University of Chicago Press.

Streeck, W. (1996) 'Neo-voluntarism: a new European social policyregime?', in G. Marks, F. Scharpf, P. Schmitter and W. Streeck (eds.),Governance in the European Union, London: Sage, pp. 64-94.

Vachudova, M.A. (2000) 'Eastern Europe as gatekeeper the immigrationand asylum policies of an enlarged European Union, in P. Andreas andT. Snyder (eds.), The Wall Around the West: State Borders andImmigration Control in North America and Europe, Lanham (Md):Rowman and Littlefield, pp. 153-71.

at Uppsala U



Dow

nloaded from


asylum in europe: states, the european union and the international system

Documents