EU Migration and Asylum Law: Challenging or Reinforcing the Traditional Conception of Sovereignty?
Paula Muñoz Cano
Abstract
This blogpost provides some reflections on the relationship between EU and the traditional understanding of sovereignty, exploring whether the latter is reproduced or challenged in EU migration and asylum law. It is argued that EU law often (though not always) reproduces the traditional conception of sovereignty when it comes to ‘third-country nationals’, and often (though not always) challenges it when it comes to EU citizens. It is also argued that such discrepancy produces a racialised dynamics.
Keywords
Sovereignty; EU Migration and Asylum Law; EU Citizenship.
1. Introduction
The concept of sovereignty has been traditionally understood as conferring a State “exclusive competence to take legal and factual measures within [its] territory” and prohibiting “foreign governments from exercising authority in the same area without consent”.[1] . In other words, it is based on the idea that the State should have full control over its territory and population. One of the implications of this classical understanding of sovereignty is that States can restrict immigration without providing justification.
However, it has been argued that this traditional conception of sovereignty stands at odds with international and European human rights law, as well as European Union (EU) law.[2] This blogpost provides some reflections on the relationship between EU law and the traditional understanding of sovereignty, exploring in particular whether EU migration and asylum law challenges or reproduces it, and what the implications of this are. This question is particularly interesting in the contemporary context of increasing critiques of EU migration and asylum policies. Such critiques are not surprising, considering that almost a decade after the 2015 refugee ‘crisis’, the number of deaths in the Mediterranean Sea continues to rise, some media sources having referred to the “deadliest first quarter for migrant deaths in six years” in April 2023.[3]
2. The traditional conception of Sovereignty
From a Eurocentric conception of history, sovereignty appears as the result of the Westphalian project that confers self-government on states, ensuring direct control over their citizens and over their territory[4]. Sovereignty is thereby built on the dialectic of collective self-determination and the idea of territorial protection[5]. This implies power to make decisions on people and things within its territory (domestic policy) and to define its relations with other states (foreign policy) without being constrained by any external interference[6].
Political theorists have approached this concept from various perspectives. Liberal authors such as Locke have seen it as a form of a social contract, i.e., a collective pact with citizens by which the state promises to protect the members of society from any outside intrusion[7]. By including the citizenry’s will, sovereignty is no longer seen as something imposed but as something agreed upon and derived from the population’s consent. This last approach seems to be the prevailing framework through which sovereignty is understood and conceptualised in present-day discourse.
James Crawford has noted that sovereignty in international law is commonly conceived as encompassing the “totality of international rights and duties recognised by international law that reside in the independent territorial unit known as the nation-state”[8]. While international law acknowledges and respects the sovereignty of nation-states, it also imposes obligations and responsibilities, sometimes in ways that are at odds with the idea that restrictions are based on ‘State consent’[9]. The prohibition of torture or cruel, inhuman, and degrading treatment, recognised both in international human rights law and EU fundamental rights law, is a good example, as it constitutes a jus cogens norm to which states cannot derogate. This is particularly relevant for migration and asylum, as States cannot return individuals to their country of origin in case of a substantial risk of torture or cruel, inhuman, and degrading treatment.
Moreover, EU migration and asylum law encapsulates a set of complex and detailed Regulations and Directives with which States must comply. Their obligations deriving from this framework are seen by some States, like Poland and Hungary, as sensitive sovereignty issues, since migration control relies on the idea that States have power over their territory and population.[10] Considering the degree of regulation on migration and asylum matters reached on the EU level since the Amsterdam Treaty, the EU offers a unique lens for reflecting on the traditional understanding of sovereignty and its potential transformations .
3. Sovereignty, EU Citizenship and EU Migration and Asylum Law
Territorial borders have been seen as boundaries dividing different sovereignties so that encroachment on territory has been understood as a challenge to a state’s sovereignty. However, EU law seems to have brought a change in the conception of territorial borders as the project of building the internal market was established and further developed, with consequences on political integration through concepts like the EU citizenship. In this context, the free movement of persons has been confirmed as one of the fundamental freedoms of the EU, along with the free movement of capital, services, and goods, limiting in important ways Member States’ capacity to restrict the mobility of EU citizens[11]. This was accompanied by the elimination of internal border controls in the Schengen Area and the creation of a common external border, which implied new and stricter security measures to control the flow of ‘third-country nationals’. These measures are currently implemented with the help of a now-permanent ‘standing corps’ of border guards (FRONTEX) with executive powers ready to support Member States in security matters[12].
The EU’s competence in matters of asylum and immigration is shared with Member States, creating a system of pooled sovereignty. This means that Member States can legislate where the EU does not exercise its own competence and that they delegate part of their decision-making powers to shared institutions. When EU institutions decide based on a qualified majority vote, instead of unanimity, their decisions appear as limiting the sovereignty of Member States, especially of those who did not vote in favor. However, such decisions might also consolidate Member States’ capacity to control migration flows, which would reproduce the traditional conception of sovereignty. In this sense, it is mainly when such decisions limit Member States’ capacity to restrict immigration of ‘third-country nationals’ that the traditional conception of sovereignty is challenged.
An interesting pattern emerges when comparing EU migration and asylum law with EU citizens’ mobility rights. EU law often (though not always) reproduces the traditional conception of sovereignty when it comes to ‘third-country nationals’, and often (though not always) challenges it when it comes to EU citizens. Indeed, while containing provisions on international protection, EU law bolsters Member States’ capacity to restrict, control and manage migration flows, in ways that also affect people who might become asylum seekers and beneficiaries of international protection once they manage to reach the EU.
4. Racialised Dynamics?
The discrepancy between the ways in which sovereignty is understood in EU citizenship law and in EU Migration and Asylum law produces a racialised dynamics, understood here not in the legal sense of ‘racial discrimination’ – which has been said to exclude distinctions based on nationality and citizenship – but rather as a social construction.[13] Indeed, when looking at the list of countries that are subject to Schengen visa requirements under EU law, as well as the data on people who have died along migration routes towards the EU, or their presence in camps and detention centres, it is hard not to realise that the people who are denied legal access to the globally prosperous, developed, and safe countries of the global North are mostly non-white[14]. Restrictive migration policies are often presented as contingent and justified by practical concerns, while actually reflecting deeper historical, racial, and imperial legacies. This is what Mérget calls “false contingency”[15].
EU visa policies have largely reproduced the traditional conception of sovereignty and consolidated previous schemes of migration control adopted on the national level, instead of challenging them. After World War II and processes of decolonization, former colonial residents became citizens of newly independent States. Under this configuration of the international legal order, increasingly restrictive migration laws have affected mostly citizens of Asian and African origin[16]. This legacy remains today and is reflected in EU policies. Freedom of movement is historically constructed in a way that excludes certain groups, while masking a racialised dynamics.
Moreover, the EU has been criticized for its racialised responses to the so-called refugee ‘crises’.[17] Indeed, its responses have varied depending on where the displaced persons come from. A clear example is the response to the recent Russian-Ukrainian ‘crisis’, for which the Temporary Protection Directive – not triggered during the 2015/2016 ‘crisis’ – was activated[18]. It seems that the EU has assumed that certain migrants are fundamentally incompatible with EU citizenship, whether on grounds of identity, religion, or culture. This logic is what Achiume calls ‘political stranger exceptionalism’[19]. In other words, certain displaced persons are seen as threats to sovereignty, identity, and stability, thus justifying allegedly neutral – but in reality racialised – restrictive migration policies.
The racialised dynamic in EU law is exacerbated by the global reach of its policies based on the traditional conception of sovereignty, whose territoriality is at the same time challenged. This is visible in processes of ‘externalization’ of EU policies of migration control, whose objective is to keep afar nationals from African and Middle Eastern countries through partnerships with ‘third countries’. [20] Territoriality is arguably both challenged and reproduced: it is challenged in the sense that third countries have become Europe’s “border guards” and it is reproduced in the sense that the objective is to restrict access to the territories of Member States.
Examples include the infamous EU-Turkey Statement and the cooperation between the EU and Libya, as well as other African countries, most recently Tunisia. Under such schemes, ‘third countries’ receive training and funding from the EU to control their borders, with violent consequences on migrants, such as pushbacks, forced returns and detentions[21].
5. Conclusion
Despite efforts by the EU to redesign the concept of sovereignty through a common legal framework, such as freedom of movement, the ravages of classical state power still persist. EU law has introduced a shared sovereignty model, where Member States delegate decision-making powers to EU institutions, including in matters of immigration and asylum. This shared sovereignty can limit the autonomy of individual states. A notable paradox arises when comparing how EU law treats ‘third-country nationals’ and EU citizens. It often reproduces the traditional sovereignty concept for the former category of people, but it often challenges it in relation to EU citizens. This discrepancy appears to be shaped by racialised dynamics, with restrictive migration policies disproportionately affecting non-white individuals. These policies, presented as practical responses to migration concerns, are rooted in historical, racial, and imperial legacies. To truly change the traditional conception of sovereignty, the EU must address and dismantle these racialised barriers within its migration policies. Furthermore, Frontex and Member States should recognise the detrimental impact of racialised controls and adopt more inclusive and equitable approaches.
Citation: Muñoz Cano, Paula. “EU Migration and Asylum Law: Challenging or Reinforcing the Traditional Conception of Sovereignty?”. NOVA Refugee and Migration Clinic Blog, September 2023, available at: https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=eu-migration-and-asylum-law-challenging-or-reinforcing-the-traditional-conception-of-sovereignty
[1] Peter Malanczuk, Akehurst’s modern introduction to international law (Routledge, 2002).
[2] Cathryn Costello, The human rights of migrants in European law (Oxford University Press, 2016)
[3] UN News, “Central Mediterranean: Deadliest First Quarter for Migrant Deaths in Six Years,” UN News, April 12, 2023, https://news.un.org/en/story/2023/04/1135577.
[4] Julian G. Ku and John Yoo, “Globalization and Sovereignty,” Berkeley Journal of International Law 31 (2013): 228
[5] Arango Franco and Jorge León, “La Soberanía y sus Fundamentos hoy,” Ratio Juris 2, no. 5 (2007): 29.
[6] Eric Tardif, “Metamorfosis de La Soberanía: Elementos Para Una Redefinición Del Concepto a La Luz Del Derecho Internacional Contemporáneo,” Anuario de Derecho Constitucional Latinoamericano, 2010, 310.
[7] E. Tendayi Achiume, “Migration as Decolonization,” Stanford Law Review 71 (2019): 1525
[8] James Crawford, The creation of states in international law, 32 (2d ed Oxford University Press 2006).
[9] Simone Penasa and Graziella Romeo, “Sovereignty-Based Arguments and the European Asylum System: Searching for a European Constitutional Moment?” European Journal of Migration and Law 22 (2020): 14.
[10] Hungary, Poland and the Czech Republic have been subject to legal proceedings and rulings by the Court of Justice of the European Union (CJEU) due to their non-compliance with Council relocation decisions. See Joined Cases C715/17 Commission v. Poland, C-718/17 Commission v. Hungary and C-719/17 Commission v. Czech Republic, ECLI:EU:C:2020:257.
[11] European Union Agency for Fundamental Rights and Council of Europe, “Handbook on European Law Relating to Asylum, Borders and Immigration,” Luxembourg: Publications Office of the European Union, 2015, 18.
[12] European Parliament. “Management of the External Borders.” Fact Sheets on the European Union, 2023
[13] Achiume Tendayi, ‘Racial borders’ 110 (2021) Geo. LJ 445.
[14] Nicholas De Genova, “The ‘Migrant Crisis’ as Racial Crisis: Do Black Lives Matter in Europe?” Ethnic and Racial Studies, September 6, 2017, 4.
[15] Frédéric Mégret, ‘The Contingency of International Migration Law: ‘Freedom of Movement’, Race, and Imperial Legacies’, in Ingo Venzke, and Kevin Jon Heller (eds), Contingency in International Law: On the Possibility of Different Legal Histories (Oxford University Press, 2021).
[16] Karin de Vries and Thomas Spijkerboer. 297
[17] Jackson Sow, M. ‘Ukrainian refugees, race, and international law’s choice between order and justice’ 116(4) (2022) American Journal of International Law 699; Veronica Corcodel and Dimitra Fragkou, ‘Europe’s Refugee “Crises” and the Biopolitics of Risk’ (2023) 1European Journal of Risk Regulation 1, 9. See also Luana Cardoso and Matilde Felgueiras, ‘The Temporary Protection Directive and its Application in the Context of the Russo-Ukrainian War’ (2023) NOVA Refugee and Migration Clinic Blog, available at: https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=the-temporary-protection-directive-in-the-context-of-the-2015-2016-and-the-2022-2023-crises-geopolitics-race-or-both.
[18] European Commission. “Temporary Protection.” Accessed May 8, 2023
[19] Achiume, “Migration as Decolonization,” 1531
[20] Elin Palm, “Externalized Migration Governance and the Limits of Sovereignty: The Case of Partnership Agreements between EU and Libya,” 11
[21] Elin Palm, 22.