From ‘controlling’ to ‘managing’ labor migration

(1)

From

‘Controlling’ to ‘Managing’ Labor Migration

Jin GUO

Supervisor: Dr. Julien Jeandesboz Second Reader: Dr. Jeroen Doomernik

27th June 2014

Master Thesis Political Science European Union in a Global Order

(2)

2

Student Information

First Name Jin

Last Name Guo

Student No. 10651675

Email guojinruc@163.com

Program European Union in a Global Order

Supervisor Dr. Julien Jeandesboz

Second Reader Dr. Jeroen Doomernik

(3)

3

Abstract

Over the last decade, a proliferation of international reports that elaborate a global policy on ‘international migration management’ has dominated discourses and practices of many institutions, including the European Union. This global approach of migration management constructs labor migration as a process that can be managed to be orderly, predictable, and beneficial for all the stakeholders involved, namely the sending countries, the receiving countries and the immigrants themselves. The

approach distinguishes itself from previous ‘migration control’ policies by claiming to both liberalize labor market and take into account the rights and needs of immigrants. The aim of the thesis is to research on the essence of this normative transformation in labor migration policies of the EU. By examining the ongoing EU directives

regulating labor immigrants, this paper aims to understand how the EU legitimizes its labor migration policies by linking them to EU norms. The main argument put

forward in this paper is that norms mainly serve as an excuse for the union to continue its inclusion of the economically beneficial and exclusion of the ‘unwanted’. With a lively debate on NPE since it comes into being and the growing importance of labor immigrants in the EU, this paper provides a new angle to analyze both the NPE and the EU’s labor migration policies.

Key words: Labor Migration Policies, Normative Power Europe, Migration Control,

(4)

4

It is relevant do discuss the Normative Power Europe (NPE) in the labor dimension of the EU’s migration policy. On the one hand, most of the EU migration policy studies that involves the implementation of EU norms are discussed in the field of irregular migration, for the securitization of the union’s external borders has

resulted in disastrous casualties. NPE is seldom linked to researches on regular labor migration. On the other, labor migration policies indeed have repercussions on NPE. After the end of World WarⅡ, European states experienced mass migration in a form that introduced significant non-European minorities.2 These migrant worker

minorities constitute a vulnerable group considering their human and labor rights, therefore their protection in the country of employment is considered a principal concern of the international normative framework.3

Labor migration has played an important role in contributing to economic prosperity in the European countries. Immigrants will maintain their important role in the EU to facilitate its goal of establishing the most dynamic and competitive

knowledge-based economy. The Europe 2020 strategy has set up three mutually reinforcing priorities of the union: smart growth – developing an economy based on knowledge and innovation, sustainable growth – promoting a more resource efficient, greener and more competitive economy, and inclusive growth –fostering a

1_{Stephen Castles, ‘Migration, Crisis, and the Global Labor Market’, Globalizations, 8(3), 2011, p.311} 2

Gary P. Freeman, ‘Modes of Immigration Politics in Liberal Democracies’, International Migration Review, 29(4), 1995, p.881

3

Ryszard Cholewinski, ‘The Human and Labor Rights of Migrants: Visions of Equality’, Georgetown Immigration Law Journal, 22:177, 2008, p.184

(8)

8

high-employment economy delivering social and territorial cohesion.4 Faced with challenges of globalization, ageing population and the need to increase its

productivity and competitiveness,5 the union confirms the importance of ‘a well-organized legal immigration policy’ to help fill labor shortages and meet

demographic challenges in the long term to accomplish its priorities.6 Therefore, the labor migration policies are worth investigating on as they directly influences the implementation of EU strategic goals.

The current regime of labor migration policies are dominated by ‘migration management’ discourses. The positive impacts of migration management are emphasized in the annual reports of the EU on immigration and asylum starting in the year 2010. For instance, in 2010, the first annual report that was released shortly after the outburst of the financial crisis states that although in the short term the crisis will attenuate labor and skills needs, in the longer term a well-organized legal immigration policy will continue to play an important role in the prosperity of the union.7 In the following year, the Communication on Migration accompanying the second annual report confirms that ‘where as poorly managed immigration can affect social cohesion and the trust of citizens in an area of free movement without internal borders, well managed migration can be a positive asset for the EU.’8 In the latest annual report, which came out in May 2014, the benefits of well-managed migration is reassured. It emphasized that legal migration is a tool for growth, and that ‘well-managed migration can contribute to boosting the economy, gaining access to needed skills and addressing labor market shortages’, thus the Commission will continue to support and promote well-managed migration.9

After the 1973 recession, especially after the EU removed its internal boundaries, member states became increasingly concerned about strengthening external

4_{European Commission, Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth, COM (2010)}

2020, Brussels, 3.3.2010, p.3

5

European Commission, Commission Staff Working Document – Lisbon Strategy Evaluation Document, SEC (2010) 114 final, Brussels, 2.2.2010, p.2

6_{European Commission, First Annual report on Immigration and Asylum (2009), COM (2010) 214 final, 6.5.2010} 7

European Commission, First Annual report on Immigration and Asylum (2009), 2010

8_{European Commission, Communication on migration, COM (2011) 248 final, Brussels, 4.5.2011} 9

European Commission, Fifth Annual report on Immigration and Asylum (2013), COM (2014) 488 final, Brussels, 22.5.2014

(9)

9

boundaries to prevent an influx from the south and the east.10 In contrast with the era of migration control from the 1973 recession to the late 1990s, the union’s consistent emphasis on the positive impacts of migration at present seems to indicate that the liberalization of migration has started. This migration management policies intend to achieve a ‘triple-win’ situation for the receiving states, the sending countries and migrants themselves.

Nevertheless, is reality as perfect as what the policies plan? By investigating on the three mechanisms regulation labor immigrants, namely the Directives on

highly-qualified workers, intro-corporate transferees and seasonal workers, the paper argues that the EU promotes values such as human rights and equal treatment with nationals in its policies, while discriminating against labor immigrants by pushing them into different categories and granting them different rights to serve strategic calculations of the union. More specifically, the perceived more economically beneficial highly skilled workers are offered possibilities for long-term settlement, while provisions for low skilled labor continue to be temporary, contract based systems to avoid integration cost.11

The interest of this paper is not to reach a conclusion on whether the union is or is not a normative power, but rather what the EU do to accord to a normative power. With the fact that only worthy migrants are authorized favorable conditions to come and work in the union according to its policies, we should pay attention to what is covered by the normative claims to critically analyzes whether the normative transformations of labor migration policies are simply to liberalize, or rather to manage immigrants in order to meet the needs of the Union.

10

Stephen Castles and Mark J. Miller, ‘Introduction’, in The Age of Migration (Britain: Macmillan Press LTD, 1998), p. 9-10

11

Christina Boswell, ‘New Policies on Labor Migration’, in European Migration Policies in Flux – Changing Patterns of Inclusion and Exclusion (London: The Royal Institute of International Affairs, 2003), p.40

(10)

10

ChapterⅡ Normative Power Europe VS. The Politics of Migration

Management

In Europe over the latest decade, requirements of migration are getting increasingly stricter, if not irrational. People are living with the fact that they need to provide all their personal information, including biological information and their financial capabilities, to go through long queues of immigration controls, and to prove a legitimate intention and even a plan of stay in order to get in their country of destination. As a result, regular migrants tend to get used to the idea that their freedom to migrate should be in line with the ‘migration management’ arrangements of states. Our imagination of what freedom we should have are constrained by our daily surroundings, by the massive discourses generated by governments and international organizations. We are used to appreciating the limited freedom we are authorized without questioning its quality.

The Article 5 of the 1868 Burlingame Treaty can push us to think out of the contemporary box. It said that both the United States and China were to recognize ‘the inherent and inalienable right of man to change his home and allegiance and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively from one country to the other for purposes of curiosity, of trade or as permanent residents’.1

The intention of the comparison between the first two paragraphs is to let us think about current management activities regarding regular migration that has been taken for granted in the context of contemporary norms. And this chapter aims to set up a theoretical framework to explore the ‘management’ of labor migration through NPE theory.

It is easier to investigate on Normative Power Europe (NPE) in EU policies targeting irregular migration, as the horrible news about these people dying on their way into Europe directly questions the securitization activities, and reveals the

1

Jane Mcadam, ‘An Intellectual History of Freedom of Movement in International Law: the Right To Leave As A Personal Liberty’, Melbourne Journal of International Law, 12(1), 2011, p.27-56

(11)

11

inconsistency between these activities and EU norms regarding human rights.2 For instance, Elspeth Guild has argued that the EU is rather a security actor than a normative actor according to its counter-terrorism measures such as the ‘terrorist list’ after 11 September 2001, which has raised serious questions of human rights compliance.3 Broeders discussed the emergence of large-scale electronic surveillance systems aims at controlling irregular migrants, such as the Schengen Information System (SIS), Eurodac and Visa Information System (VIS).4 Cholewinski argues that this security-focused approach on migration has been at the expense of human rights.5 In general, borders, asylum and security measures are always connected, within which process violations of norms of freedom, equality and justice are analyzed.6

In contrast, policies of regular migration, especially labor migration, are far less discussed, not to mention a discussion of NPE in the context of EU’s labor migration policies. But the labor policies do have important repercussions for the EU’s positioning as a normative power. Migrants, in particular migrant workers, constitute a vulnerable group considering their human and labor rights, especially when they find themselves in an undocumented situation in the receiving country, therefore ‘it is not surprising that their protection during the whole migration process, and especially in the country of employment, is considered a principal concern of the international normative framework that has been developed to date’.7

To discuss NPE in the labor dimension of the EU’s migration policy, we must first know well about the NPE theory. How it came into being, what it refers to, how it is criticized and can be discussed are important issues that are elaborated in the first part of this chapter.

2

Rutvica Andrijasevic, ‘Deported: The Right to Asylum at EU’s External Border of Italy and Libya’, International Migration, 48(1), 2010, p. 148-174

3

Elspeth Guild, ‘The Uses and Abuses of Counter-Terrorism Policies in Europe: The Case of “Terrorist Lists” ’, Journal of Common Market Studies, 46(1), 2008, p.173-193

4

Dennis Broeders, ‘The New Digital Borders of Europe: EU Databases and the Surveillance of Irregular Migrants’, International Sociology, 2007, 22(1), p.71-92

5

Ryzard Cholewinski, ‘EU Policy on Irregular Migration: Human Rights Lost’, in Barbara Bogusz, Ryszard Cholewinski, Adam Cygam and Erika Szyszczak (eds) Irregular Migration and Human Rights: Theoretical, European and International Perspective (Leiden and Boston, MA: Martinus Nijhoff, 2004), pp.159-192

6_{To name some, Thierry Balzacq, Sergio Carrera, Migration, Borders and Asylum. Trends and Vulnerabilities in}

EU Policy, CEPS: Brussels 2005; European Parliament, ‘European Parliament resolution on migratory flows in the Mediterranean, with particular attention to the tragic events off Lampedusa, 16th_{October 2013, 2013/2827(RSP)} 7

Ryszard Cholewinski, ‘The Human and Labor Rights of Migrants: Visions of Equality’, Georgetown Immigration Law Journal, 22:177, 2008, p.184

(12)

12

2.1 ‘Normative Power Europe’

The ‘normative power Europe’ (NPE) discourse is one that most politicians of the European Union– in Council, Commission and Parliament as well as on the member state level – engage in unless they are committed Eurosceptics8. There may exist disagreement regarding the means to exercise the normative power, namely whether the benign normative power should rely on military force or economic capabilities, yet ‘the representation of Europe as a force for peace and well-being is nearly consensual’. 9

However, in the academic circle, ‘a lively debate on the validity of understanding the EU’s global role in terms of a normative power is taking place’.10

From the question of whether military means are applicable for the NPE, the criticism against this concepts progressed to query the ‘altruistic nature’ of the aims of the union.11 Seemingly normative appeals may well have realistic aims in company.

Nevertheless, discussion around normative power has always been about whether the EU is or not such a power, while reality is always not so clear-cut. Marieke De Goede provides us a new angle to assess NPE in her paper about the SWIFT Affair. She analyzes what the EU does to accord to the NPE identity rather than what the EU is, which enable us to critically see the complexity. The EU has managed to position itself in the global security landscape as a normative power that promotes the values of privacy and data protection, while develop a European Terrorism Financing Tracking System and implement risk-based and data-led internal security measures, which are not consistent with each other.12

The same contradictions can be found in the field of labor policies of EU. The union has changed its labor migration policies from restrictive ‘control’ to management, from ‘zero immigration’ to safeguarding legal status of labor immigrants. And migration management is often presented as ‘a contrast to control, as

8

Thomas Diez, ‘Constructing the Self and Changing Others: Reconsidering “Normative Power Europe” ’, Millennium – Journal of International Studies, 33(3), 2005, p.620

9_{Diez, ‘Constructing the Self and Changing Others’, 2005, p.620} 10

Marieke De Goede, ‘The SWIFT Affair and the Global Politics of European Security’, Journal of Common Market Studies, 50(2), 2011 p.215

11

Goede, ‘The SWIFT Affair’, 2011 p.215

12

(13)

13

a softer and more liberal alternative.’13

However, the change of discourse from ‘control’ to ‘management’ does not necessarily brings about more liberalized measures, which may simply create a mechanism to normalize already existed measures. Therefore, critical attention needs to be paid to the labor dimension of EU’s migration policy, which also makes this paper relevant.

The debate around NPE started and remains to be a hot topic for over a decade partly because whether the European Union satisfies the conditions of a normative power is not a clear-cut case. The Union may advocate normative appeals and norms while proceeding with its illiberal practices, simply turning irregular practices into more transparent regular frameworks without any essential changes. Just like the trend in international migration policies, the change of discourse from tough ‘control’ to soft ‘management’ does not necessarily brings about a more friendly and justified treatment to workers of third country nationals (TCNs). We must be careful and remain critical toward EU’s normative appeals, for it may ‘allow EU actors to disregard their own shortcomings’.14

In order to start a discussion around Normative Power Europe, we need to explore how the concept comes into being, what it refers to, as well as how and why it is accepted or criticized.

2.1.1 The Introduction of Normative Power Europe

Before NPE caught attention in the academic circle, there had been a debate about what kind of actor or power the European Community is. François Duchêne introduced the concept of ‘civilian power’, as opposed to traditional military/political power.15 Noticing the growing importance of economic interdependence, he believed that traditional military power had given way to progressive civilian power as the means to exert influence in international relations.16 In contrast, Bull argues that

13_{Martin Geiger and Antoine Pécoud, The Politics of International Migration Management, in Martin Geiger and}

Antoine Pécoud (eds), The Politics of International Migration Management (England: Palgrave Macmillan, 2010), p.26

14

Diez, ‘Constructing the Self and Changing Others’, 2005, p.627

15_{Hedley Bull, ‘Civilian Power Europe: A Contradiction in Terms?’, Journal of Common Market Studies, 21(2),}

1982, p.149

16

(14)

14

‘from the perspective of “the return to power politics” of the 1980s, military power is the crucial foundation of civilian power, without which the latter is not relevant.17 Thus the debate was between scholars who argued that the EC (the European Community) was a civilian power and those who believed it should become a military power. However, both of the two conceptualization suffers from a common problem, that is they are both based on ‘how much like a state the EU looks’.18

Obviously, this common problem makes the two concepts not suitable to be applied to the Union, for the EU is ‘widely seen as a novel kind of actor in international politics’, in its external relations. The Union is novel for it is believed ‘to pursue the spread of particular norms, rather than geographical expansions or military superiority’,19

and for its commitment to pooling the resources of member states to preserve and strengthen peace and liberty.20 Like Ian Manners has put it, the Union is a post-Westphalian actor, who plays a ‘unique’ role in promoting the globalization of universal norms.21

This novelty has been ‘captured succinctly’ by the term ‘normative power Europe’.22

The EU as a ‘normative power’ emerges in the contemporary context in which economic clout and normative guidance are understood to underpin the Union.23 This concept inevitably has social and moral dimensions. As Thomas Diez has put it, this discourse ‘establishes a particular identity for the EU’, which is a ‘positive force’ in the world politics.24

2.1.2 What is Normative Power Europe?

Although ‘normative power’ is frequently used, the definition of this concept is disputed as much as its validity.

2002, p.235

17_{Bull, ‘Civilian Power Europe’, 1982, p.150} 18

Manners, ‘A Contradiction in Terms?’, 2002, p.239

19

20

21_{Michael Merlingen, ‘Everything Is Dangerous: A Critique of “Normative Power Europe” ’, Security Dialogue,}

38(3), 2007, p.435

Goede, ‘The SWIFT Affair’, 2011, p.223

24

(15)

15

The concept of normative power was introduced into the discussion of EU’s foreign policy by Ian Manners.25 Though the idea of normative power in the international sphere is not new. As early as 1963, Carr E.H. made the distinction between economic power, military power and ‘power over opinion’.26

Duchêne perceived the EC as an idée force (1973), and Galtung saw the EC as an ‘ideological power’ (1973), a power of ideas that is different from and much more powerful than its counterparts – remunerative power and punitive power.27 Ian inherits these opinions and defines normative power as ‘the ability to shape or change what passes for normal in international relations’, that is the power to impact on what is considered ‘normal’ and appropriate behavior without a moral dimension.28

There are both normative and non-normative reading of Ian’s definition. On the one hand, what Ian suggests is that ‘what is normal’ in international politics is in line with the unique normative basis of the EU, which is rooted in ‘its sui generis history and character as a post-sovereign or post-Westphalian entity’, in ‘a willingness to disregard Westphalian conventions’.29

Therefore, NPE would contribute to ‘the reduction of cruelty in world politics and the promotion of global social justice.’30

On the other hand, however, it subtly equals European norms to universal or global norms, which is not necessarily the case. According to this definition, all major international actors would have ‘normative’ foreign policies, in that they all have certain capability to determine and shape ‘what is normal’ to some degree.31

In other words, this definition tends to suggest that the Union is promoting its own norms in a way similar to historical empires and contemporary global powers,32 which runs contrary to the aim to distinguish the novel EU power from traditional international actors.

25

26

27

28_{Ian Manners, ‘Normative Power Europe: The International Role of the EU’, paper presented at the ECSA}

Biennial Conference, Madison, Wisconsin, May 2001, p.10

29

Merlingen, ‘A Critique of ”Normative Power Europe” ’, 2007, p.437

30

31_{Nathalie Tocci, ‘Profiling Normative Foreign Policy: The European Union and its Global Partners’, in Nathalie}

Tocci (eds), Who is a Normative Foreign Policy Actor? The European Union and its Global Partners (Brussels: Center for European Policy Studies, 2008), p.4

32

Ian Manners, ‘The European Union as a Normative Power: A Response to Thomas Diez’, Journal of International Studies, 35(1), 2006, p.170

(16)

16

In contrast, Nathalie Tocci enriches the normative power concept with moral obligation, which is non-neutral. ‘In order to have an effective or “powerful” normative foreign policy, an international actor not only needs to pursue normative goals through normative means’, it also needs to achieve an intended discernible normative impact.33 Normative goals are those that pursue to shape conditions beyond national boundaries without seeking to defend or increase possessions the country holds to the exclusion of others; normative means include all instruments that are deployed within the confines of law; and a normative impact is the effective construction of a norm-bound environment.34 What is interesting is that, Tocci himself predicts that people might criticize him for setting unrealistic standards, but he insists on this strict criteria for ‘having or claiming to have a normative foreign policy is no mean feat in itself’.35

Tocci’s definition provides us with concrete standards to evaluate NPE, thus although the interest of this paper is not to reach a conclusion on whether the union is or not a normative power by checking the standards, it still sets up a framework of analyzing NPE and will be implemented by the paper.

From both the non-moral and moral definitions of normative power, we can see that although the precise definition is disputed, norms always lies in the center of the conceptualization of ‘normative power’, whether the norms are perceived as values or rules defining ‘what is normal’.

Consistent with the concept of NPE, ‘norms’ was also introduced firstly without a moral dimension. The study of norms has been well-enriched in post-Cold War period, and much of these researches understands norms as ‘collective expectations about proper behavior for a given identity’, which are ‘agnostic along the dichotomies of benign/malign’.36

Conversely, much of the NPE scholarship perceives norms in a different way, which can be expressed in the vocabulary of ethics and gestures that the EU has a moral obligation to respect and defend in world politics.

33

Tocci, ‘Profiling Normative Foreign Policy’, 2008, p.15

34_{Tocci, ‘Profiling Normative Foreign Policy’, 2008, p.4-12} 35

Tocci, ‘Profiling Normative Foreign Policy’, 2008, p.21

36

(17)

17

What is the moral obligation, the norms that EU respect and defend? As a ‘normative power’, the Union frequently emphasizes and promotes certain norms in its foreign policies. The norms that stand out the most are the founding principles of the Union, including ‘peace’, ‘liberty’, ‘democracy’, ‘respect for human rights and fundamental freedoms’, ‘rule of law’, as well as the principles of subsidiarity and transnational representation in the European Parliament that form the unique political structure of the EU.37 Among all the norms, ‘a strong commitment to human rights is one of the principle characteristics of the European Union’, because the protection of fundamental human rights is ‘a founding principle of the Union and an indispensable prerequisite for her legitimacy’.38

These norms involves the values of ‘inclusion, participation, transparency, attentiveness to distributive effects, tolerance of diversity and of other levels of legitimate governance’39. In spite of the big norms, there are also four ‘minor’ norms within the constitution and practices of the EU. They include ‘social solidarity’, ‘anti-discrimination’, ‘sustainable development’ and ‘good governance’.40

The Accession Criteria of the EU, commonly known as the Copenhagen Criteria, summarize principles and norms promoted by the Union. Politically, the norms cover democracy, the rule of law, human rights and respect for and protection of minorities. Economically, a functioning market economy is the primary rule.41

2.1.3 Criticisms of Normative Power Europe

There are three important groups of criticism towards NPE, among which ‘the most straightforward empirical critique is that the notion of NPE downplays or altogether ignores that European foreign policy, no less than foreign policy of the USA and other powers, is invested with strategic calculations and that the material interests underpinning this calculus often trump the normative agenda of the EU when

37

38

41_{‘Accession Criteria (Copenhagen Criteria)’, available from:}

http://europa.eu/legislation_summaries/glossary/accession_criteria_copenhague_en.htm (last accessed April, 2014)

(18)

18

the two clash.’42

A second kind of criticism points to the EU’s self-representation as ‘a force for good’ in world politics.43

A major perspective of this group points out the inconsistency in the EU’s activities, which can be seen in the existence of double-standard to different countries, and also in violating the norms inside the Union. For instance, since 9/11, ‘the EU and its member states have taken part in the drive towards the securitization of migration’.44

More importantly, the NPE discourse constructs the EU as a better ‘Self’, whose special identity lacks a degree of self-reflexivity. 45 ‘In playing up its normative vocation abroad, the Union conveniently forgets its own, less than perfect record of norm compliance at home.’46

The most critical evaluation on NPE is based on Foucault, whose theory has pointed out the Janus-faced character of norms. First of all, ‘norms are contingent and ambiguous.’47

Norms can never be understood as a result of a free and open debated to transcend the ethical self-understandings of individuals and to arrive at a consensus on a cosmopolitan morality. ‘Even while they clear moral spaces in which new subjectivities and modes of conduct can flourish, they contain and entail arbitrary constraints – a form of epistemic violence – that limit the expression of differences.’48 Secondly, the normalization and regularization of individuals and societies not only make life safer and less costly, but also ‘technologize life’.49 More specifically, by constraining or encouraging ‘the potentially politically disruptive agency of individuals’ to live a ‘normal’ or moral life, they get tamed not to question the existing socio-political order and the power relations that underpin it.50 At the same time, the political is replaced by ‘the expert-based implementation of seemingly apolitical norms of good governance’.51

42

43

46

47

48_{‘Epistemic Violence’ refers to the hierarchies of knowing and moral sentiments that are produced and}

maintained by normativizing discourses. Merlingen, ‘A Critique of ”Normative Power Europe” ’, 2007, p.441

49_{Merlingen, ‘A Critique of ”Normative Power Europe” ’, 2007, p.441} 50

51

(19)

19

The point is that Foucault’s theory makes it possible to analyze the diffusion of norms by NPE as ‘a practice made up of elements that are in tension or opposition with each other’.52

A practice of international promotion of fundamental civil, political and economic rights may aim at the protection and strengthening of the basic exercise of human agency, but it never can be clearly distinguishable from the subjection and subordination of this very agency.53

From this last type of criticism, Foucault ‘opens up’ norms in a way that enable us to see their two facets: they are both ‘a means of control or a limit that imposes a series of social, cultural, political and other constraints on human agency’, and a means of ‘emancipation from tyranny, insecurity, poverty and so forth’.54

Foucault restores the complicated and contradictory nature of NPE.

It is important to shift the debate around NPE away from the question of whether the EU is or is not a normative power, to the analysis of normative power in itself. NPE is a discourse with the ability to accord community and identity to the EU’s nascent international role.55 And how the EU plays this nascent role in ‘managing’ the migration is the main theme to be explored in this paper.

2.2 Discussing the NPE in the Labor Dimension of Migration

Management

NPE is often discussed in the EU’s external actions. As power only exists in relation to others, it is reasonable to analyze NPE in its interaction with other international actors. But at the same time, by labeling the EU as a normative power in world politics, Ian Manners suggests that the EU promotes a series of normative principles that are generally acknowledged to be universally applicable, and ‘the EU promotes such substantive principles by virtue of the principles of “living by example”; by duty of its actions in “being reasonable”; and by consequence of its impact in

52

53_{Merlingen, ‘A Critique of ”Normative Power Europe” ’, 2007, p.443} 54

55

(20)

20

“doing least harm” ’.56

The principle of ‘living by example’ help to ‘make sense of’ and judge the way in which normative power is exercised.57 Therefore, what an example the EU itself constructs plays an important role to evaluate NPE, making it necessary to explore how the union acts within its territory. And the migration policies is one such example.

As discussed above, a normative power tries to achieve normative goals through normative means. In other words, a normative power offers normative solution to problems it recognizes, and the ‘problems’ are the root of all the actions. Therefore, first, when we try to analyze the ‘normative’ solution of NPE to the ‘problems’ of labor migration, we should acknowledge how the ‘problems’ come into being. It helps us to critically perceive the activities covered by normative claims.

In traditional understandings, policy-making is usually only a reaction and solution to a ‘problem’ that emerges. But policy-making may well work the other way round, for it is policies that shape the construction of reality and the very perception of the ‘problems’ to be addressed in the first place.58

These discourses produce a ‘truth’ that is indispensable to the exercise of power, and knowledge serves as a ‘political rationality’ that supports and justifies the way power is exercised.59

However, knowledge, while presented as ‘factual’, ‘neutral’ or ‘objective’, is actually influenced by political orientations.60

For example, Frontex does not only control the borders of the European Union, but also shapes a new representation of what the border is, what are the existing problems of borders, and how it should be governed by extending the border from the coasts of northern and western Africa to the interior of the EU.61

The same phenomena can be found in the labor dimension of the EU’s migration policy. The EU directives claim to guarantee corresponding rights and freedom of

56

Ian Manners, ‘The Normative Ethics of the European Union’, International Affairs, 84(1), 2008, p.46

57

Manners, ‘The Normative Ethics of the European Union’, 2008, p.46

58

Willianm Walters, ‘Imagined Migration World: The European Union’s Anti-Illegal Immigration Discourse’, The Politics of International Migration Management, 2010, p.73-95

59

Willianm Walters, ‘Imagined Migration World: The European Union’s Anti-Illegal Immigration Discourse’, The Politics of International Migration Management, 2010, p.73-95

60

Geiger and Pécoud, The Politics of International Migration Management, 2010, p.11

61

(21)

21

different groups of migrant workers by strengthening their legal status respectively to combat problems of labor migration. But what are the realities under this normative cover? ‘Knowledge’ tells the Union what labor migration are, what kind of migrants are wanted in member states, and by categorizing labor migrants into three types (highly-qualified workers, seasonal workers and intra-corporate workers), the Union shapes what groups of labor migrants are welcomed by the EU, and how they should be governed and ‘managed’ to meet the labor needs of member states. However, why only these three groups of labor are included? Is the problem of the mismatch between labor market and labor really as such? Why not relying on the market to choose what people they need, rather than including and excluding certain groups of people before they have access to the labor market? Why the rights and prospects that migrant workers hold are different from each other?

Secondly, we need to clarify what norms are involved in the labor dimension of the EU’s migration policy. The EU has developed many norms over the years after its foundation, but not all of them are relevant in the field of labor migration. In order to keep the discussion of NPE focused in this paper, we should only explore the consistency of EU’s actions with norms that should be respected in migration policies. Last but not the least important, we should analyze what role norms play, namely whether the EU activities generate normative impacts, or rather the norms are only utilized as excuses to maintain old control measures.

There are limits of liberal democracies and questions of rule and rights in modern societies.62 Human rights plays a central but ambivalent role in migration management. Migration management initiatives heavily mobilize humanitarian arguments to justify their activities. For example, many measures to stop unauthorized migration or to prevent refugees to claim asylum are presented as ‘necessary’ to fight human smuggling and trafficking.63 But what we should keep in mind is that these management measure themselves generates striking casualties, in which case the

62_{Tugba Basaran, ‘Security, Law, Borders: Spaces of Exclusion’, International Political Sociology, 2008,}

p.339-354

63

(22)

22

norms such as ‘human rights’ only serve to justify migration policies that have little to do with the protection of migrants’ rights. Therefore, the role of norms is much more important than the existence of norms in the policies.

2.2.1 How the ‘problems’ in labor migration come into being? -- From Pragmatism, to Migration Control, to International Migration Management

Migration has long been a neglected topic at the international level. After the World WarⅡ,state-controlled guest worker programs were introduced to meet the demand of labor. This phase of migration policy can be labeled as ‘pragmatism’, for the topic was not utilized for political mobilization.64 But the last decade has witnessed ‘a proliferation of international reports’ that elaborate a ‘global policy discourse’ on international migration.65

After the end of the Cold War in the early 1990s, a ‘migration crisis’ emerged out of the fears regarding the asylum crisis and ‘the porosity of Western European Borders to migration flows from the East’.66

The first half of the 1990s witnessed anti-immigration movements in many European countries, which sometimes led to racist violence against minorities. ‘Governments too became concerned about their ability to control migration and to manage cultural diversity.’67 Since the 1990s, migration had been represented as a threat to be combated in Europe, where ‘zero immigration’ was the goal.

Stopping ‘unwanted migration’ has since then been increasingly regarded by governments as essential for safeguarding social peace, and the somewhat vague term ‘unwanted immigration’ embraces:

 illegal border-crossers

 legal entrants who overstay their entry visas or who work without permission

64

Christina Boswell, ‘The Evolution of Postwar European Migration Policies’, in European Migration Policies in Flux – Changing Patterns of Inclusion and Exclusion (London: The Royal Institute of International Affairs, 2003), p.10-15

65

66_{Geiger and Pécoud, The Politics of International Migration Management, 2010, p.3} 67

(23)

23

 family members of migrant workers, prevented from entering legally by restrictions on family reunion

 asylum seekers not regarded as genuine refugees

Of course, the ‘unwanted’ migration is not always as ‘unwanted’ as is made out, as employers often benefit from cheap workers who lack rights, and some governments tacitly permit such movements. Nevertheless, ‘unwanted immigration’ is often portrayed as major components of the mass influxes of immigrants who threat welfare systems, and it is therefore gradually getting to the center of extreme-right agitation.68

As migration involves international mobility, in Western Europe, the result has been a series of agreements designed to secure international cooperation in stopping illegal entries, and to speed up the processing of applications for asylum.69 ‘The difficulty in achieving effective control is not hard to understand. Barriers to mobility contradict the forces which are leading towards greater economic and cultural interchange.’70

Following the needs to face migration challenges came the requests from the UN Commission on Global Governance, thus the notion of ‘international migration management’ was first elaborated in 1993 by Bimal Ghosh as a solution to the problem.71 One of the key characteristic of this new international regime for global cross-border mobility and migration was its aim to turn migration into a more orderly, predictable and manageable process, and to make it beneficial for all the stakeholders involved, which is quite ambitious.72 The migration management discourse constructs migration as a normal and potentially positive process, a process that can achieve a ‘triple-win’ situation for the receiving states, the sending countries and migrants themselves.73

By more orderly and beneficial for all, Ghosh actually means a regime that

68

Castles and Miller, ‘Conclusion’, The Age of Migration, 1998, p. 289

69_{Castles and Miller, ‘Conclusion’, The Age of Migration, 1998, p. 290} 70

Castles and Miller, ‘Conclusion’, The Age of Migration, 1998, p. 290

71_{Geiger and Pécoud, The Politics of International Migration Management, 2010, p.2} 72

73

(24)

24

maintains a ‘regular openness’ toward economically needed and beneficial flows, while continues restrictions on unwanted migration.74 However, is the problem in migration policy really about how to effectively include the wanted while excluding the unwanted? We should keep this question in mind through the progressing of this paper.

2.2.2 What norms are involved in dealing with labor migration?

In 1990, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) were adopted by the General Assembly of the United Nations. It frames a very comprehensive set of civil, political, economic and social rights for migrants, including those living and/or working abroad illegally, and has become a cornerstone of the human rights-based approach to regulating labor immigration.75 Although CMW is the least ratified convention among all the major international human rights treaties, and it has been predominantly ratified by migrant sending countries,76 CMW still is a sign that the international debate of norms related in regulating migrant workers has been started. To avoid overlapping of contents, the norms involved will be discussed in detail in the next chapter.

2.2.3 What role norms play in dealing with labor migration?

The old term ‘migration control’ is political and directly reflects the power relations, making ‘migration management’ a more liberal phrasing at the first glance. However, rather than directly restricting the mobility of people, ‘migration management’ discourses only pretend to move beyond the narrow security-oriented policies of border control to apply norms and promote proactive policies organizing.77

Basically, ‘migration management’ is a notion that is utilized by actors to

74

Ghosh Bimal, ‘Towards a New International Regime for the Orderly Movement of People’, In Ghosh Bimal (eds), Managing Migration – Time for a New International Rigime? (New York: Oxford University Press, 2000), p.6-26

75

Martin Ruhs, ‘The Rights of Migrant Workers – Reframing the Debate’, in The Price of Rights – Regulating International Labor Migration, (the UK: Princeton University Press, 2013), p.1

76

Ruhs, ‘The Rights of Migrant Workers – Reframing the Debate’, 2013, p.1

77

(25)

25

conceptualize and justify their increasing interventions in the migration field.78 These actors, namely all kinds of intergovernmental organizations (IGOs) play a crucial role in the development of ‘migration management’, as they can shape government’s decisions by producing knowledge and analysis deemed relevant to better ‘managing’ migration, and by providing ‘scientific’, ‘technical’ or ‘managerial’ expertise familiar with these knowledge and analysis to states.79

The fact that international migration management is almost impossible further reflects the pragmatic nature of the ‘migration management’ discourse.

‘In an increasingly international economy, it is difficult to open borders for movements of information, commodities and capital and yet close them to people. Moreover, flows of highly-skilled personnel tend to encourage flows of less-skilled workers too. The instrument of border surveillance cannot be sufficiently fine-tuned to let through all those whose presence is wanted, but to stop all those who are not.’80

Although it is impossible to ‘manage’ migration, the notion is widely applied by different institutions to integrate very wide and confusing range of activities and actors under a convenient umbrella, and to facilitate cooperation between these actors.81 As the officials of ICMPD explicitly state, they do not believe in the possibility of ‘managing’ migration, but they nevertheless use the notion to promote their role and to reassure the idea that International Centre for Migration Policy Development (ICMPD) can provide the ‘solutions’ to migration ‘problems’.

Furthermore, freedom is not an end in itself, but a tool to achieve labor market objectives – ‘governing through freedom’82 The best example of this approach can be found in the mechanisms for temporary labor migration, which claim to enable citizens from less developed countries to have access to working opportunities in developed countries, but at the same time meet the interests of receiving states to have flexible foreign labor force without any integration challenges. 83 ‘Migration

78

79

80_{Castles and Miller, ‘Conclusion’, The Age of Migration, 1998, p. 290} 81

82_{Sara Kalm, ‘Liberalizing Movements? The Political Rationality of Global Migration Management’, in The}

Politics of International Migration Management, 2010, p.30

83

(26)

26

management’ is full of normative assumptions of how actors should behave. ‘Good migrants’ are respectful of law, flexible to market needs, ready to circulate and eager to contribute to the development of their home country.84 However, the demands of migrants to stay longer than planned in destination states and truly increase their ‘freedom’ are hardly taken into account.

Migrants are perhaps free, or at least freer, but above all that they are free to make the ‘right’ choice – that is, the choice that is understood as best serving the interests of the states in-between which they live.85

In the new bottles of ‘migration management’, which are seemingly freer and more normative, we still see the old wine: granting people more freedom while diffusing normative guidelines to steer their behaviors, balancing state interventions with market dynamics, depoliticizing decisions through the use of victimhood, assistance and humanitarian rhetoric and so forth.86 Just as the famous saying of Foucault, ‘my point is not that everything is bad, but that everything is dangerous’.87

And this caution should be applied to the analysis of NPE.

84

Geiger and Pécoud, The Politics of International Migration Management, 2010, p. 17

85_{Geiger and Pécoud, The Politics of International Migration Management, 2010, p. 17} 86

Geiger and Pécoud, The Politics of International Migration Management, 2010, p. 17-18

87

(27)

27

Chapter Ⅲ Data Collection and Research Methodology

In the theoretical chapter, I have explained the three core research questions that need to be explored in the empirical parts. They are:

 how the ‘problems’ in labor migration come into being in the union, in other words, how the union locates its target of policy in this field over time;

 what norms are involved in dealing with labor migration;  what role the norms play in dealing with labor migration.

To answer these questions, the empirical parts of this paper is divided into two chapters:

 a historical overview of the developments of labor migration policy of the union, which mainly covers the question of how the ‘problems’ come into being, as the changes of policies combined with the changes of context should reveal the underlying aims of the transformations, which may be contradictory to the normative claims.

 an analysis of contemporary policies regulating migrant workers based on a comparison of requirements and rights of different groups of migrant workers, from which the paper can investigate on what norms are mentioned and emphasized in the policies, and what role these norms play in formulating the policies.

The research design tries to build up a full picture of who constitute legal migrant workers in EU. By concentrating on questions of why certain categories of labor migrants are preferred and of why the corresponding rights among different groups are different, the paper can reveal to what extent the liberal norms are followed in this field. The design of the EU’s directives about legal workers are all about

(28)

28

‘managing’ migration, about facilitating the channel it prefers to steer people away from irregular movements. The theoretical discussion makes it convenient to analyze how EU’s practices follows the framework of migration management, and thus suffer from its problematic logics.

3.1 Data Gathering

The paper is mainly based on data from primary official document and secondary literature review.

The chapter of historical overview is divided into three stages, namely the phases of pragmatism, migration control and migration management. The majority of analysis in this chapter is based on secondary literature overview. Secondary literature is an important source as they provide information of historical context, from which I can analyze the catalyst of regime changes from control to management.

As for the chapter of contemporary analysis, the data is mainly primary data such as EU directives, EU proposals for directives, EU policy plans, EU annual reports on immigration and asylum, and EU communication. The European Commission Directorates-General of Home Affairs formulates policies on labor immigration, who divides migrant workers into three categories:

 the highly qualified workers;  seasonal workers;

 intra-corporate transferees.

Therefore, the paper focuses on EU’s three mechanism to facilitate labor migration, including ‘The Blue Card Directive’, the Directive on seasonal employment, and the Proposal for a Directive for intro-corporate transfer of non-EU skilled workers.

(29)

29

3.2 Research Methodology: Content Analysis

According to Hermann, there are several consecutive steps to conduct a content analysis, including: considering research question, selecting material, deciding on the nature of content analysis, determining the unit of analysis and coding, and ascertaining validity.1

The core question I want to research on is how the EU accord its labor migration policies to the Normative Power identity. As the interest of this paper is in EU policies, I focus my content analysis on the official documents of EU regarding legal labor migration. This paper adopts qualitative analysis, as qualitative content analysis is probably the most prevalent approach to the qualitative analysis of documents.2 As for ‘Coding’, the focus of the three Directives is on entry requirements, duration of stay, rights, and refusal/withdrawal

The data research help me to know who are welcomed, why they are welcomed instead of others, on what conditions they are welcomed, and how they are welcomed in order to understand the rationale of EU to welcome them, through which I can see what is covered by ‘more freedom’.

1

Margaret G. Hermann, ‘Content Analysis’ in Audie Klotz and Deepa Prakash (Eds), Qualitative Methods in International Relations, (the US: Palgrave Macmillan, 2008), p.151-167

2

Alan Bryman, ‘Documents as Sources of Data’, in Social Research Methods 4th Edition (United States: Oxford University Press, 2012), p.557

(30)

30

Chapter Ⅳ Historical Overview of the EU Labor Migration Policy

This chapter sets up the historical background for explaining current EU migration policies to analyze how the perceived ‘problems’ regarding labor migration have been constructed.

As has mentioned in the theoretical chapter, to be a normative power, an international actor need to pursue normative goals. This is only one of the three requirements according to Tocci’s standards, and thus only meeting this requirement is not adequate. However, if the goals of EU are not totally normative, in other words, if the intention of the union is not as altruistic as it claims, we may question the validity of NPE.

An historical overview provides us with the necessary context to analyze the underlying causes and intentions of the emergence of normative goals in EU labor migration policy, which allows us to see the main determinants of policies and what role norms actually play in these policies.

From the 1970s onwards, migration issues increasingly became the subject of political debate among European political parties at the national level, because political parties at that time discovered that these concerns provided ‘excellent material for political mobilization’.1

Through the issue of migration, all the ill-defined concerns related to the influx of migration has been able to be articulated clearly and linked to each other, including problems of unemployment, welfare state reforms, education, criminality, national security and declining social homogeneity.2 Migration was gradually becoming politicized and restrictive.

In the recent decade since the 2000s, we do witness the emergence of normative discourses and reasoning, as well as a general trend to the liberalization of labor policies, but what is more important is to see through the normative cover. How the

1_{Christina Boswell, ‘Introduction’, in European Migration Policies in Flux – Changing Patterns of Inclusion and}

Exclusion (London: The Royal Institute of International Affairs, 2003), p.3

2

(31)

31

‘problems’ and concerns in the field of labor migration come into being? Are they problems as such, or rather constructed by political strategies? This chapter looks through the history of EU migration policies in detail, on which basis a discussion focusing on these questions is conducted.

The discussion covers policies towards not only labor, but migration in general with an emphasis on labor migration, for the reason that the distinctions between different categories of migrants are often blurred in public debate.3 Although sometimes the anti-immigrant policies are not necessarily targeted at labor migrants, they may still produce public hostility towards migration as a whole. Moreover, more general concerns about the impact of migration on collective identity, and doubts about whether immigrants are willing or able to integrate, are often targeted at all categories of migrants, regardless of their legal status or purpose of stay.4 Therefore, a restrictive attitude to certain groups of migrants may well reflects a totally restrictive policy to all migrants, thus policies regarding asylum-seekers, illegal migrants and refugees shall not be thoroughly excluded from the overview.

4.1 Pragmatism – Migration Policy before 1973

In the three decades after the Second World War, migration and refugee issues attracted little attention in public debates and rarely became central topic among national parties. However, what is interesting was that it was not because the level of immigration flows was lower than it is today, but that immigration policies in this era were almost exclusively determined ‘by political elites and their social partners, as a function of labor requirements or international relations’.5

Until the early 1970s, migration policies in most European migration destination states were dominated by labor market demand and demographic considerations of governments. The term ‘pragmatism’ in this context means that at the time migration was not a political problem that generated irrational fears and hatred among indigenous citizens, but

3_{Boswell, ‘Notes’, 2003, p.126} 4

Boswell, ‘Introduction’, 2003, p.2

5

(32)

32

simply a measure to meet the need of labor for postwar reconstruction, or to solve the remaining problems of historical colonial relations. In this period, the characteristic of migration policy in the European countries is pragmatism, as it was either economically driven or foreign-policy-consideration driven, without politicization of migration by linking it to the concerns about cultural identity, the integration of migration, unemployment or welfare systems.

4.1.1 Labor Requirements

In most continental west European countries, the recruitment of labor migrants was agreed upon by labor ministries, employers and trade unions, conforming to essentially clientelist model of policy-making. The model made it possible for these countries to formulate their policy from pure economic considerations. On the one hand, in the post-World WarⅡperiod, the economies of Western Europe expanded so rapidly that continental European countries such as France, West Germany, the Netherlands, Belgium, Austria and Switzerland were faced with shortage of workers.6 On the other, there was a widespread consensus that immigration was the only means of solving the drastic shortage of labor in Europe. As a result, these countries were heavily reliant on labor immigration, and recruited additional labor through so-called ‘guest worker’ schemes from the 1950s to the early 1970s.7

Nevertheless, this economically driven policies did not necessarily mean that the mechanisms were more liberal or less protectionist. On the one hand, these mechanisms usually entails a big portion of state control.8 On the other, the reason that migration issues could be almost exclusively economic without much concerns from citizens was that there was a consensus that the rotation system of labor migrants would ensure that the stay of migrants was only temporary, so that they would not bring about problems regarding long-term residence in the receiving country.’9 The

6

Janice Fine and Daniel J. Tichenor, ‘An Enduring Dilemma: Immigration and Organized Labor in Western Europe and the United States’, Oxford Handbook of the Politics of International Migration, June 2012, p.3

7

Boswell, ‘The Evolution of Postwar European Migration Policies’, 2003, p.10-12

8_{Stephen Castles, ‘Guest-Worker in Western Europe – An Obituary’, International Migration Review, 20(4),1986,}

p.762

9

(33)

33

trade unions accepted these migrants only because of the temporary nature of the ‘guest workers’, in which way they would not undermine the bargaining power of the trade unions.10 To ensure this temporary nature of ‘guest-workers’, restrictive measures were taken by states, for instance, in 1945 the British government launched the European Voluntary Worker (EVW) scheme to recruit about 90, 000 workers, of whom only single persons were eligible. Moreover, they were tied to a job chosen by the Ministry of Labor for fixed three years without any possibility to extend their stay, during which period misconduct and illness would lead to deportation.11

4.1.2 International Relations

In spite of economic argument, European countries such as France, Belgium, and the Netherlands were also influenced by the need to maintain good relations with former or existing colonies, especially the UK, who had less recognition of the necessity of foreign labor for economic reconstruction.12 In the UK, political parties and even the Trades Union Congress stressed the political or moral obligation of admitting immigrants from the West Indies and the Indian subcontinent.13 France also opened its borders to the citizens of its colonies and former colonies, and they were allowed to enter freely into its territory until the late sixties.14

The large context of Cold War and the competition between the two camps also enabled states to take in asylum seekers based on liberal norms. Starting in 1950, the European East-West migration was characterized by distinct ‘waves’ of migration directly linked to political events or even to political bargaining between the countries involved.15 Many of these people seeking asylum in the Western European countries were ‘lauded as brave escapees fleeing from totalitarian regimes in Central and Eastern Europe’.16 The political dimension of migration was particularly evident in

10

Janice and Daniel, ‘An Enduring Dilemma’, 2012, p.3

11

Castles, ‘Guest-Worker in Western Europe’,1986, p.762

12

Boswell, ‘The Evolution of Postwar European Migration Policies’, 2003, p.11-14

13_{Boswell, ‘The Evolution of Postwar European Migration Policies’, 2003, p.13} 14

Castles, ‘Guest-Worker in Western Europe’,1986, p.764

15_{Heinz Fassmann and Rainer Munz, ‘European East-West Migration, 1945-1992’, International Migration}

Review, 28(3), 1994, p.523

16

From ‘controlling’ to ‘managing’ labor migration

From

Abstract

Table of Contents

List of Abbreviations

ChapterⅠIntroduction

ChapterⅡ Normative Power Europe VS. The Politics of Migration

Management

2.1 ‘Normative Power Europe’

2.2 Discussing the NPE in the Labor Dimension of Migration

Management

Chapter Ⅲ Data Collection and Research Methodology

3.1 Data Gathering

3.2 Research Methodology: Content Analysis

Chapter Ⅳ Historical Overview of the EU Labor Migration Policy

4.1 Pragmatism – Migration Policy before 1973