I am talking to you on some issues of migration and Human Rights. Let me start by giving you 2 cases.
(1) Case. A medical doctor - migrant from an Arab country - reports of a recent encounter with the Police President of his city in a West-European country: "There was a phone call from the Police President. He asked for a dialogue. I did not understand what he wanted. He said often 'dialogue' - why didn't he simply say: 'I want to talk to you'? But alright, he wants dialogue; he did not mention a topic or so, and I answered: 'Of course - we would enjoy Your visit every day.' Well - a Police President is not anybody. But he insisted to get an appointment. I said: 'I am retired. I am almost every time at the mosque, Wednesday, Friday and Sunday under all circumstances. Come, if you have time.' - He talked lengthily, I cannot recall everything, and finally he asked sort of timidly: 'We would like to start a dialogue with the whole Muslim parish or community; maybe, that a Friday, before or after the prayer, would be appropriate.' Well - who is 'We'? The Police? And who is the Muslim parish? Our community holds 30 to 40 retired people, who are all Arab doctors or engineers. Well - some are from Turkey or Iran. Of course, I don't have any objections against such sort of a meeting. He should come Friday at 6 in the evening, I said. And that then - of course -became embarrassing. He talked and talked and we always heard 'dialogue'. It was painful because no one of the 25 old men present understood what he wanted. Afterwards I questioned him bluntly, what the conversation should be about. We then discovered that, in fact, he would like to have a dialogue with these young people, who around the mosque cause annoyance, make stupid things, nonsense. 'What do we have to do with that?', we asked. And again he started: Dialogue with Muslims, there has been for a long time no such a dialogue. Dialogue to improve common life, friendship. I remained polite, police is important and I respect - of course - a Police President. But at one point I had to say quite frankly: 'No one of the people who sit here has a problem with dialogue. Nobody. Nobody makes bad things, we all pay our taxes, have employees from this country and our kids carry diplomas from the city university and I added: Those young people he referred to have been insolent and cheeky to us as well. They are no Muslims, and they don't go to mosques, particularly not to ours. And another member of the group made clear to the policeman that we ourselves are afraid of these young rowdies. Another added that one cannot make a dialogue with these men; one should imprison them, that's it. I think that is necessary for some of them. Why and how can we start the job of the police?"
(2) Migration and Human Rights: Second Case. According to the standing rulings of the European Court of Justice in Luxemburg the European Citizenship is the "basic status of citizens of EU member states". The Court in its decisions of last year enlargened the rights of individuals emanating from EU citizenship. This development reached a peak in a judgment of the Great Chamber of the Court from March of this year. The essence of this judgment is the discovery of a core of EU citizenship, which could be claimed also from the nation state. The EU citizenship as the core of individual rights disconnects to a certain extent from the member state-citizenship. This is new! To inform you I'll firstly explain the content of the Zambrano Case and then draw some conclusions. What is the matter of the case? Ruiz Zambrano and his wife - both are citizens of Colombia - stayed in Belgium since 1999 with insecure legal status, after an unsuccessful asylum procedure. Some applications of the couple to legalize their stay failed. Mr. Zambrano worked illegally. During their stay, two children were born. The couple omitted to apply for Colombian citizenship for their children - obviously on purpose. According to Belgian law, the children became Belgian citizens in order to avoid statelessness. On submission of the case to the European Court of Justice by the Tribunal du Travail of Brussels the Court granted to Mr. Zambrano a right to legalize his status and an entitlement to a work permit. The Court derived this right of Mr. Zambrano from the EU citizenship of his children (Art. 20 of the Treaty on the Functioning of the European Union). The Court argued that the denial of a right to stay for Mr. Zambrano would have the consequence that the children - both of them EU citizens - would be forced to leave EU territory in order to not be separated from their parents. If so, the core of EU citizenship of the children would be destroyed. In other words: Third country foreigners, who live illegally in Europe, may stay if their child is an EU citizen and they pay for his/her maintenance. This is true even if - as in this case - the EU citizen never left the country of stay (in this case: Belgium). This is new, because according to former decisions of the European Court of Justice EU citizenship came into action only when the person left the home country in order to stay or to settle in another member state. The ratio of EU citizenship,
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in fact, is to open national borders for citizens of other member states, basically in order to facilitate transborder migration. During the court proceedings in re Zambrano national governments of 9 member states argued that it is not an EU law case but a purely national matter (of Belgium). Without going to much into detail, one can say that it would mean to set aside national law concerning foreigners, if protection by EU citizenship is granted in such national matters to foreigners from third states. The legislators of the member states are deprived of their competence to regulate on admission and stay of citizens of third states according to their own options.
I think that these two cases shed some light on some factual and legal problems of migration. I would like to approach them a little bit more in three steps: firstly, I will present some facts of migration in Europe; secondly, I shall give a quick overview of the Human Rights topics of migration; thirdly, I would like to depict some shortcomings of the migration situation in Europe and instruments to improve it: challenges and possibilities.
Migration means - as we all know - that a person transfers the centre of his/her life and work to another place. But in our context we mean - of course - transnational migration - within the European Union - and international migration, the latter by citizens of states which are not EU member states (i.e. third states). In dealing with problems and possibilities of migrants - integration, naturalization, rights and duties - we need, however, to encompass a larger group. The term for this group is "people with migrant background". These are not only the migrants themselves, but also young persons, who have been born in an EU member state, but have at least one parent who comes from another member state or from a non-European state. They mostly have no migration experience themselves and often are naturalized. The legal situations of migrants differ from country to country in Europe, but the basics are similar. In in the following, I may focus on migrants in Europe. In a globalized world, migration is an ubiquitous phenomenon, and it will certainly grow. I think we are privileged to live in Europe and in the Union, a continent which is the goal, aspiration and hope for so many migrants from all over the world.
Let me present a few data. In 27 member states of the European Union with half a billion people we have 20 Mio. non-European citizens and approximately 60 Mio. migrants. In Germany, with 80 Mio. people, we have 16 Mio. people with migration background, half of them with German citizenship. From the remaining approx. 8,0 Mio. migrants 2,3 Mio. are migrants from EU member states. In Hamburg, my home city, with 1,8 Mio. inhabitants, one third (510.000) of the population have a migration background, with 223.000 not being German citizens. As in all other countries the majority of people with migration background are young people. Migrants come from all over the world, in Europe namely from Turkey, Afghanistan, Iran, Serbia a.s.o. In Hamburg, interestingly enough, 18% of the migrants are from Turkey, 13% are from Poland. In Hamburg, 4 % of the population are from Poland.In Bergedorf - one of our 7 districts - we have 7% with a Polish background.
I think we all agree, that the goal of migration-policy of society and government must be social integration in the sense that unity in diversity can be achieved. This is, at least, the main idea of building Europe, as spelled out in Art. 3 of the Lisbon Treaty. How could that be different in the member states? This means, actually, that only one model of four possible models is qualified to further peaceful coexistence within co-citizens with migration background. A society must evaluate possibilities and dangers of the following concepts: inclusion (establishing a multi-cultural society); assimilation (leading towards homogenity); separation (exclusion of parts of society which may lead to parallel structures of society); marginalization (creating minorities and causing isolation of individuals).
All these possible approaches have been treated in history and actually find support in our political sceneries. I think, however, that integration in plurality is the best way: "Let's enjoy our similarities and celebrate our differences."
But along with which data should one evaluate integration processes and results? Which are the core-indicators, the common set of values to measure progress against and monitor policy? Which are the fields of more successful and less effective integration? Let me mention first the world of economy. To find a job, to earn one's own money, to be independent is a primordial goal of any individual. Occupational integration requires education. Does it really matter if some politicians hypocritically advocate integration as humanistic behaviour and do, in fact, mean that in our particular demographic situation we need a young work force? And here in economy we need heroes: like Vural Öger, the successful Turkish businessman.
The second field of integration is of course culture in the widest sense. The underrepresentation of young people with migration background is dramatic. To learn the language of the country, its social values, its discipline is essential for fruitful
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coexistence. This includes mandatory participation in sports and swimming for all boys and girls, including muslims. The Shador fortunately is no longer a problem, whether you interpret it as a cultural, fashion or as religious or political expression of personality. In most European countries the Burka is not used. We need heroes in culture: like Lukas Podolski.
Even more important is the social sphere. The single most important factor of integration is the family, not only according to the subsidiarity principle, which is an element of the Lisbon Treaty. Family, friendship, partnership are the fields of successful or failed integration. Strongly deviating cultural habits like honour killings, forced marriages or violence as a "tool of communication" cannot be tolerated.-Finally, it is essential that people with migration background participate in political and civic matters: be it in elections (as far as constitutionally manageable), in political parties, unions, in consultative bodies. There is a constitutionally based right to receive information about available rights to join the political and civic world and co-decide. We have heroes: the first minister with a Turkish background in Lower Saxony and Cem Özdemir, as chairman of the Greens. We know that people with migration background participate not less, but differently in society: not so much in parliaments, parties, unions, but more in sport-clubs, in street-society-life a.s.o.
All these efforts to support integration, mainly from your own sources and powers, run towards the final goal: emotional integration. Personal integration has psychological, social and cultural elements. Who am I? Where do I stand? Some people with migration background, old ones as well as young ones, do not know which national and cultural identity they belong to. They are "sitting inbetween chairs". It is sort of a hybrid identity, which a German with Arab roots put like this: "If I say, I am a German, but not like the Germans, and Moroccan, but not like a Moroccan - this is for my partners a riddle."
"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood." Are these words - Art. 1 of the Universal Declaration of Human Rights (1948) -"solemn affirmations lacking in sense", are they "outdated", are they "law in the books" or "law in action"? The situation of people with migration background is indeed a field where Human Rights' validity and strength can be tested. All legal instruments strive at guaranteeing justice for migrants protecting their dignity, combating discrimination, open the gate to asylum. Every country has to check whether its legal order stands the test of migration. Justice and whether sovereignty steps back sufficiently to allow for solidarity with migrants as a command of justice.
We have Human Rights, applicable for migrants on an international, supranational and national level. The legal predecessor of the Universal Declaration of Human Rights (1948) is the Charter of the United Nations (1945). In its preambule it stresses that it aims at reaffirming "faith in fundamental Human Rights, in the dignity and the worth of the person, in the equal rights of men and women of nations large and small". One has to add the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966) as well as the Conventions Against all Forms of Racial Discrimination (1965), relating to the Status of Refugees (1951 - Geneva Refugees Convention). I may remind you of the work of the UN Special Rapporteur on Human Rights of Migrants, who started global campaigns promoting improvement of migrants' situation, and that the UN General Assembly launched world conferences against racism and xenophobia. Amnesty International with its access to media is a global player in monitoring the implementation of Human Rights of migrants, and the growing activity and visibility of the International Criminal Court (ICC) in The Hague fosters information about and prosecution of violations of migrants' rights.
On the supranational and regional level we have to distinguish the European Convention of Human Rights of the Council of Europe (1950) and the Charter of Fundamental Rights of the European Union (2000/2007). The Convention and its many Protocols is so strong, because it is enforced by the European Court of Human Rights, which grants access not only to member states but to every individual. By that it is a "lighthouse" of transparency and implementation of Human Rights -or lack of it-.Moreover, there are the European Conventions on the Participation of Foreigners in Public Life at local level (1992) and on the Legal Status of Migrant Workers (1977) as well as the Social Charter (1991). The European Convention on Nationality (1997), which codifies principles and rules covering all aspects of nationality, from facilitating acquisition by long term-residents and recovery by former nationals to limiting grounds for withdrawal and statelessness.
The Charter of Fundamental Rights of the European Union of 2000/2007 is not law in force, since it has not been ratified by all member states. Art. 6 of the Lisbon Treaty, however, reads as follows: "The Union recognises the rights, freedoms and principles
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set out in the Charter of Fundamental Rights of the European Union ..., which shall have the same legal value as the Treaties". The Charter covers more or less the same rights as the other legal instruments which I referred to above. It is, however, a significant step forward in quality, since the scope of the format of the rights and their dogmatic structure represents the progress of courts', lawyers' and academia's interpretation of Human Rights.
As regional source of Human Rights, one might take into account the Nordic Union Code and the Charter for a New Europe of the Organization for Security and Cooperation in Europe (OSCE, 1990). It is a result of the Helsinki Process ,which already in 1975 by the participating states assured its respect for Human Rights, the reunification of families a.s.o. By the way: OSCE's Office for Democratic Institutions and Human Rights (ODIHR) is located in Warsaw.
Finally, there are the Fundamental Rights' Codes in most member states' constitutions and in Federated Systems in subnational constitutions as well, including Constitutional or Supreme Courts to implement the rights on the respective level.
Fundamental rights of migrants or persons with migration background have different functions: they may be interpreted as defending rights, sharing rights and participatory rights. Basically and from civil-liberal tradition Human Rights are barriers to defend the individual against illegitimate abridgment of individual positions - like life, liberty, freedom of expression, property - by government, later on against intrusions in Human Rights without legitimation by a statute, a law as adopted by parliament. This status is one of the anchors of the rule of law state. In this sense the migrant may defend himself against illegal deportation, detention, exploitation. He must have the right to stay in the country on humanitarian grounds, at least as long as it is decided in a fair procedure, whether he may be granted the right of asylum or another secure status, a right to stay. This status (status negativus, man versus the state) includes access to courts. The pictures from Lampedusa remind us of the importance of that very basic right.
Nobody can live on rights. In fact, the rights of life, liberty, good health - the right to survive - generate entitlements to share state offerings in subsistence, food, housing, security, information, education -from the beginning of being in a country as a migrant. How can one survive in an unknown environment without a chance to be taught the basics of the language? How can one survive without being granted a chance to find a paid job? Art. 8 of the European Convention of Human Rights concretizes a facet of that basic sharing right: "Everyone has the right to respect for his private and family life, his home and his correspondence." These rights may be put together in the status positivus.
Finally, a primordial instrument and even necessity for facilitating integration of people with migrant background is participation in civic and political life, to grant migrants participatory rights (status activus). Basic liberties for all encompass a right to petition, to express oneself, to assemble, to demonstrate, to found an association, to join a trade union or a political party. Not only must a country grant access to the voluntary civic sector, but - in the long run - to allow for access to nationality: to become eligible to be in a condition to fullfil the requirements for naturalization, to enjoy - for that purpose - a secure status. Here we find until now in European member states a diversity of regulations for the legal status to stay and finally for the acquisition of citizenship. Some countries are more restrictive, some more liberal. Just as an example among others - without any evaluation - I present the situation in my country:
- a migrant crossing the border illegally starts with toleration of stay, which means temporary prohibition of deportation;
- then he may receive a timely limited permission of stay and he may work;
- after seven years he may be granted a permission of establishment, i.e. to start a business;
- finally, after eight years, he may apply for naturalization. The requirements are a language test, basic civic knowledge and the capacity independently to finance his existence. The country changed some 20 years ago the principle of naturalization: from descendent principle (ius sanguinis) to territorial principle (ius soli), so that everybody with migrant background, who has been born on German territory, has an easier chance to gain citizenship than before. The country is not in favour of dual or multiple nationality. Many countries allow for dual or multiple nationality,others not.In the latter cases an application for citizenship requires the renunciation of all former nationalities. At the age of 18 years, when legal capacity begins, a person who still has double nationality has to decide and opt for one of these. There are exceptions: In hardship cases a factual integration is accepted, and of course there is a rather difficult, but rather frequently used asylum procedure on grounds of political persecution. In Germany, as in most European countries, the participatory rights are taken very seriously. Participation at all levels, mobilisation, and finally representation are the king's way to integration.
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Participatory Rights are taken seriously in the EU, including voting rights for the European Parliament and on local level in all member states. The UN General Assembly in 1986 adopted the declaration on the Right to Development. Art. 1 defines this right as an unalienable Human Right by virtue of which every human being and all peoples are entitled to participate in and contribute to cultural, social and economic development in which all Human Rights and fundamental freedoms can be fully realised. This declaration constitutes a major step towards the conceptualization of a third generation of Human Rights, after the first generation, the liberal rights, and the second, covering social and participatory rights.
Of course, this description of the various legal instruments of Human Rights on three levels - international, national, regional - raises the question of whether we face an inflation of rights, that the body of law has become overcomplex, redundant, intransparent. It is true that an individual seeking protection against illegal state's action may find himself in a sort of "Bermuda Triangle" between his national Constitutional Court, the European Court of Justice in Luxemburg and the European Court of Human Rights in Strasbourg. Indeed, some litigations pass all these instances. For instance, 6.000 constitutional complaints a year reach the German Federal Constitutional Court in Karlsruhe, 3.000 of which are carried further to Strasbourg. Nevertheless I think that critics of overflow are not sound, namely for three reasons. First of all, the elements all instruments of fundamental rights are similar, if not the same: dignity of the person, freedom, equality, freedom of creed and belief a.s.o. The methodology of interpretation of the body of these rights approximates. The instruments strengthen instead of weaken each other. Second the range of nations, which are subject to the Courts' adjudication are different. Countries like Armenia, Azerbaijan must defend their actions before the Court as well as Poland and Denmark. And thirdly the national courts, which may feel abridged in their competences, have developed interpretations which allow for respect of the courts on higher levels. The German Federal Constitutional Court in Karlsruhe, e.g., does not interfere in European Human Rights Cases, "as long as the European Court of Justice applies Human Rights in the same manner as the Karlsruhe Court would do", and the judges in Karlsruhe look at decisions of the Strasbourg Court as "pillars of interpretation of fundamental rights" and interpret national Human Rights "in the light of Strasbourg's understanding of them". By this method the national court in Karlsruhe treats the European Convention of Human Rights as if it were on national constitutional level, although in fact it has only the strength of statutory law.
The three highest barriers for integration of people with migrant background are: acquisition of citizenship is difficult; possibilities for political activities are limited; for children, wherever they come from, possibilities of common and successful education are insufficient. Integration policy changes in small steps, could, however, have important effects for lives of individuals. This is the main reason why we have to take integration policy very seriously.
Challenges, even dangers for coherence of societies in our countries, namely cities, are - of course in different grades - the formation of parallel societies, quartering, with bussing as one of the most desastrous consequences. We observe violence, not only - but mainly - of young persons, caused by unemployment and insufficient enforcement of schooling. We encounter discrimination, racism - including anti-semitism - and xenophobia, dangerous fundamentalism, fed by the explosive situation in the Near East. Trafficking has emerged as a global theme, contextualizing migration in a framework of combating organized crime and criminality, subordinating Human Rights protection to control and anti-crime measures. What sometimes is missing is an honest language. The Chairperson of the Green Party wants to cope with shortage of laborers with expert knowledge. One tool should be granting double citizenship. Here one should not use the rhetoric of "mercy of naturalization" but honestly point towards "glaring national interests".
Sometimes migration policy suffers from direct political influence from foreign countries. If the Prime Minister of Turkey repeatedly on visits to Germany addresses people with Turkish migration background as "outposts"of their nation in the distance, he undermines policy to encourage nationalization by opting for the citizenship o0f that country, where people live since long.
Where do we stand? The Migrant Integration Policy Index (MIPEX, No. III of 2011), established by the British Council and an International Migration Policy Group, measures success of integration against a heptagon of factors: mobility of labour market; family reunion; education; political participation; permanent stay in the country; possibility to gain citizenship; anti-discrimination policy.
The study ranks country success on a scale from 1 to 100 in 6 groups, like school notes:
1) very unfavorable (0 points),
2) unfavorable (0-20 points),
3) unfavorate tendencies (20-40 points),
4) halfway favorate (40-60 points),
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5) favorate tendencies (60-80 points),
6) favorate (80-100 points). Poland received 42 points (halfway favorate), Germany 57 (halfway favorate), Sweden 83 (favorate), Portugal 79 (favorate tendencies) and the USA 62 (favorate tendencies).
All countries, however, after having analyzed the challenges and dangers of failing integration, strive for improving the possibilities for integration. This is a task for society and government, in this order. Employment, schooling, language-education are of prevailing importance. Competition in sports and civic groups of all kind are encouraging factors of cohesion. Psychological openness and curiosity for what others can present, show, have in their character, makes friends. Cultural diversity dominates more and more local events. As institutions - again -Amnesty International and various internet networks are indispensable. In my home-city Hamburg I am a member of the board of a "Foundation for Politically Persecuted Persons". We offer journalists, poets, artists and others - with their families - a stipend to live in Hamburg, to breathe freely, to do what they can't do at home. I see possibilities, in particular, in trying new instruments for encouraging participation, on the national level, group level, individual level, for instance all the internet-tools. Public opinion and public opinion makers are an important factor to combat discrimination and xenophobia.
I think, there is agreement in all European countries on some basic demands to our societies and politics for furthering integration. It must be a policy bottom-up, not top-down. Integration has to be primarily an issue of hearts and brains of individuals, not of institutions and governments. However, institutions can help, support, encourage, finance. On the national level, the language capacity is first ranking. Without language and communication, cultural, civic and political participation cannot take place. The strategy should be: promoting and encouraging by challenging and demanding the individual. All public institutions are called upon to support individuals and families. For that we need not only schools and kindergardens, but in addition a culture of "honorary office", activities of individuals, associations, groups for migrants. Of course, the state must provide for strict implementation and enforcement of rule of law instruments: persecution of honour killings, forced marriages, trafficking and prostitution.
A national asylum-, aliens- and migration-policy, however, is no longer sufficient. Like with all European policy fields, including Schengen, we need a clear policy of public order, transparency, reliability of the law and burden-sharing. Here we took the first steps, but the next ones need to follow.
Finally, migration, non-discrimination and integration are an international policy programme in a globalized, "migrating society": We need an international system of collective maintenance of peace. This requires effective sanctions against countries which violate fundamental rights and force their citizens to flee and escape. And then we have to widen the perspective to avoid economic migration, very often due to growth of population and unfortunate developments of environment.
The core of Human Rights, which we analyzed in view of migrants and integration, are dignity, freedom and equality, namely non-discrimination. Freedom and equality are the source of democracy. I believe that the free democratic order of societies and states will be the form of government for the future. It will grow and spread. Some politicians and scholars advocate the notion of Human Rights, as described in this speech, as being just one of multiple, pluralistic understandings of Human Rights. That, e.g. the Chinese understanding, is a different one. China still has an authoritarian system of government, which seems to slowly open up to the world. If you talk with Chinese students of law and political science, be it in Wuhan, Nanjing or Beijing, you will discover that they have the same perception of freedom of speech, profession, mobility a.s.o. and also hope to have a chance freely to develop their capacities. Some politicians and scholars are of the opinion that the Muslim perception of Human Rights is different from ours. It is true that most parts of the Muslim-Arab world did not have a chance to undergo a period of enlightenment, as European countries did in the late 18th and early 19th century. Some imams noticed that and support Islam-research and teaching at European universities, not at least for the purpose of educating teachers of Islam at schools in a scholarly method and didactic. And as far as the European tradition of understanding Human Rights, we might be well advised to adhere to the four colums of European culture which are Greek philosophy, Roman law, Judaic-Christian religion and Enlightenment. As Art. 2 of the Lisbon Treaty puts it: "The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail." ■
Lábjegyzetek:
[1] The author is Law Faculty, University of Hamburg.
Visszaugrás
