Citizens and Governance in a knowledge based society

Introduction

This work package has as its objective to examine the law of citizenship and governance from the perspective of civil liberties and security. It engages the question of legal mechanisms of constitutionalism which set the boundaries of citizen and foreigner. Central to this analysis are the issues of separation of status in criminal law, legal structures of separation, social protection as a form of separation and the internal external dimensions of civil liberties.

The examination takes place in four parts. First, we examine the construction of a common identity in the European Union. What are the parameters of the concept of citizen of the Union? Who are foreigners- How are these concepts expressed in EU law and what does this means as regards the future constitutional structure of the EU. In this first part, we are in the process of producing a book on identity and citizenship in the Union which is published by Kluwer Law International and an article entitled The Variable Subject of the EU Constitution, Civil Liberties and Human Rightswhich will be published in the European Journal of Migration and Law. These are the two key deliverables of this part of the work package.

The second part of the examination of citizens and governance in a knowledge based society is an examination of the mechanisms of control, the Schengen Information System. The transformation of population registers, citizenship, governance and the Schengen Information System is at the heart of this part of the work package. Understanding the meaning of citizenship within a constitutional setting requires an appreciation of the tools of identification and their transformation. A central question of the underlying research is whether the rights and civil liberties of third country nationals seeking to cross Europe’s external borders are in an appropriate way balanced against the legitimate need of governments to control their external borders and to protect the internal security. Therefore this study examines the availability of legal remedies and the scope of judicial review for third country nationals who are entered on the basis of Article 96 into the SIS. The literature so far in this field is unsatisfactory. There has been little critical analysis of the issue of the development of databases and registers at the EU level. In particular, since its inception the SIS has not properly been subjected to a full analysis including the drawing of conclusions on its meaning. This part of the work package will rectify this shortcoming in the current literature and result in a book examining the issues and challenges.

The protection of the citizen and the resident in the form of social security is central to understanding citizenship. In the third part of this work package we examine the meaning of social security in its widest meaning. There is, according to Guiraudon (2001), a «de-nationalization of migration policy», in which the level of competence and responsibility is shifting. She distinguishes a shifting upwards (competences are transferred from national state to supranational institutions, in particular the European Union), shifting downwards (competences from national state are delegated to local authorities) and shifting outwards (competences from national state are delegated to private organizations). Thus the role of the state and the supra national level in various aspects of citizenship rights in being transformed. Using this matrix, the key part of this section is to examine the meaning of social security as a citizenship right and a constitutional entitlement the provision of which is no longer a prerogative of the national but of various other actors in the public sector - supra national and local. Thus the meaning of citizenship is transformed from citizenship which is tied by allegiance to the nation state to citizenship where the entitlements and benefits are provided by actors other than the national state. As the state of the art shows, there has been no work done so far on this central issue of the transformation of citizenship. While there has been some interesting work done on entitlements to social security differentiating between citizens and foreigners within the Member States, the conceptual transformations and their consequences have not been examine as yet.

In the final section of this work package we look at the nature of the citizen, foreigner and state from the angle of security in the form of the monopoly of violence. Traditionally, the exercise of violence outside the state has not been subject to the same limitations - those exercising violence - ie military personnel - are not constrained by civil liberties obligations. Rather the conduct of violence is regulated by the treaties on the conduct of war (notably the Geneva Conventions). Two trends both of which relate to legal frameworks are challenging this tradition perception. On the one hand EU military involvement is in the area of peace keeping, building and maintenance. In effect this has come to mean a form of policing abroad. The institutional discussions about the correct personnel to use for these purposes has given rise to some discussion in military circles in the Union - in particular a new role for police with military status seems to be developing. The second trend is in respect of the obligations on military personnel in action abroad. The European Court of Human Rights has been required to consider whether breaches of human rights contained in the European Convention on Human Rights by European military abroad constitute violations of the European state’s duties under the convention. As the EU transforms the nature of Europe and the concept of security with it, how do the legal rules apply regarding the use of violence? What is inside and what is outside? As the state of the art indicates, little work has been done on this issue. The conceptualisation of the EU as a space within which there needs to be a reconciliation of the use of the monopoly of violence and the legal rules which surround it has not been addressed at all.

Part I Citizenship, Identity, Constitutionalism and EU Law

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Summaries

T. H. Marshall, Citizenship and Social Class CUP, Cambridge, 1950.

This is one of the fundamental texts which seeks to deal with the creation of citizenship as a series of practices. Marshall considers the case of British citizenship, examining the contents of the concept. He sees its development as taking place in three main steps which in the British instance are also founded in historical periods. First in the 18th century he sees the acquisition of civil rights, starting with the right of free movement, as the beginning of the development of citizenship rights. The second step he considers takes place primarily in the 19th century with the development of political rights and universal sufferage. Thirdly, in his period (the 20th century) he plots the development of social rights as a fundamental element of citizenship. The three different sets of rights interact to form the basis of our understanding of citizenship. Marshall’s approach to citizenship remains central to thinking on the subject today.

Gellner, E, Nationalism Phoenix, London 1997

One of the last books which Ernest Gellner wrote before his death in 1995 directly addresses the issue of cultural identity as expressed in the 20th century in the form of nationalism. [1] In his view only culture and social organisation are universal and perennial. States and nationalisms are not. Nationalism is a political principle which maintains that similarity of culture is the basic social bond. [2] As he states «It simply is not the case that, at all times and in all places, men wanted the boundaries of social units and of cultures to converge, or to put it in a manner closer to their own style, that they wanted to be among their own kind, excluding ‘others’. On the contrary: men very, very often live in units which violated this principle, and most of the time this violation was accepted without protest or opposition, indeed without any awareness that a vital, alleged universal principle was being violated.» [3] Gellner’s approach is central to this discussion as the representation of immigrants as a threat to cultural identity is based on the implicit idea that homogeneity of culture is a good thing and that persons with different cultural norms are threatening or a risk to the dominant group. The basis of the nationalist’s claim is that it is self evident that, as Gellner puts it, «people should be averse to living with people of a different culture and, above all, that they should resent being governed by them.» [4] The result of nationalist theory is that there is a need «to protect the national culture by endowing it with its own state-protector, the need to unmask, neutralise and drive out the foreigners, who wish to destroy and debase that culture.» Gellner’s approach is important to any study of identity in the European Union. The development of identity struggles and their positioning in time are important factors to be considered at the EU level.

G Agamben, Homo Sacer: Sovereign Power and Bare Life Stanford University Press, Stanford, 1998

Who is entitled to differentiate between the citizen and the immigrant and what are the theoretical positions? Here Giorgio Agamben’s work on sovereignty is useful. Sovereignty is the mechanism through which nationalism and the separation of the citizen from the immigrant takes place. Agamben situates in time this differentiation of the citizen from the individual at the centre of the French revolution and the creation of the nation state. «In the system of the nation-state, the so-called sacred and inalienable rights of man show themselves to lack every protection and reality at the moment in which they can no longer take the form of rights belonging to citizens of a state. If one considers the matter, this is in fact implicit in the ambiguity of the very title of the French Declaration of the Rights of Man and Citizen of 1789.» [5]

This differentiation of citizens from individuals in general as rights holders is central to the concept of sovereignty, tied to the nation state. «Declarations of rights must therefore be viewed as the place in which the passage from divinely authorised royal sovereignty to national sovereignty is accomplished. This passage assures the exceptio of life in the new state order that will succeed the collapse of the ancien régime». [6] Thus the second step of the theoretical framework is how bare life is transformed into a citizen and becomes the bearer of sovereignty. This is then separated from the individual without citizenship who does not have this characteristic of sovereignty inherent in him or her. In support of this central understanding of the modern world Agamben notes that «one of the few rules to which the Nazis constantly adhered during the course of the ‘Final Solution’ was that Jews could be sent to the extermination camps only after they have been fully denationalised (stripped even of the residual citizenship left to them after the Nuremberg laws).» [7] The concept of sovereignty which is inherent in the citizen creates a fundamental difference between the individual as citizen and as immigrant. The immigrant, by definition does not have the capacity of sovereignty within him or her and thus the rights and guarantees of citizenship can be withheld from him or her.

Part II Schengen Information System

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Documents

Commission’s White Paper on the Internal Market COM (1985) 310 final

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Summaries

Karanja S K, ’The Schengen Information System in Austria: An Essential Tool in Day to Day Police and Border Control Work?’, Commentary in:The Journal of Information, Law and Technology2002 (1)

This article discusses the Schengen Information System (SIS) in Austria. SIS is a joint information technology and communication system for exchange of information concerning wanted persons and objects. Its purpose is to allow checks on persons to be made quickly and efficiently at border controls in order to detect criminals and illegal immigrants moving into and from one Schengen country to another. The article is based largely on interviews with key persons responsible for SIS in Austria, supplemented with background material from written literature and legal sources. The purpose of the interviews was to gather information on the functioning of SIS and the implementation of control mechanisms. The general conclusions are that SIS is functioning well and has become an essential tool in day-to-day police and border control work. The control safeguards are also working well. However, there are a number of concerns that need to be addressed, while others are already being addressed. These concerns are discussed in detail as an evaluation of the effectiveness of SIS’ internal and external control and safeguards.

Anderson, M., & Apap, J, ed.,Police and justice co-operation and the new European borders,The Hague: Kluwer Law International European monographs 2001

When we consider the ideal of the `family’ of nations implied by the European Union, it seems unnatural to deal with the question of where Europe’s borders lie. Yet the question is urgently raised by grave issues of internal and external security.

As the European Union’s imminent eastward and southern expansion becomes reality—side by side with the evolving new emphasis on security spawned by the events of September 11, 2001—we must be sure that the Schengen norms remain viable. It is also crucial to take full account of the impact of the enlarged European Union on the non-candidate countries of Eastern Europe.

This important book takes the position that trust is the essential ingredient. Fourteen distinguished authors reveal various ways of achieving a level of trust among the members of the enlarged European Union adequate to the need for full freedom, security, and justice. The contexts in which trust must be established include police and judicial cooperation; the fight against terrorism, organized crime, and human trafficking: the latent threats to freedom of movement posed by national responses to increased immigration; and the transparent extension of EU Justice and Home Affairs measures to the candidate countries. The authors include political actors, policymakers, advisers, experts, and researchers from all parts of Europe. Their individual and collective contributions, in each case built solidly on thorough analysis of the relevant issues, bring a wide range of profound and wide-reaching insights to a vital subject. The book is of great significance not only for those charged with law enforcement and security, but also to all academics and policymakers concerned with the future of Europe.

Groenendijk, C.A., Reinstatement of Controls at the Internal Borders of Europe: Why and Against Whom?European Law Journal2004 10: 150-170.

Each of the successive arrangements on abolition of controls at the internal borders in Europe provided for the possibility of temporary reinstatement of border controls. The actual use of this power may tell us about the functions of border controls. This article analyses on which occasions the governments of the Schengen states did actually use this power after 1995, and what is known about the effects of those temporary controls. It appears that the actual use varied considerably in time and between the Member States. In most cases the temporary controls aimed not at reducing illegal immigration or preventing serious crimes, but at the protection of meetings of political leaders. The individuals checked or stopped at the borders are predominantly union citizens, not third-country nationals. It is contended that the controls at land borders are not considered as an effective instrument of crime or immigration control. They may have a highly symbolic function: showing the public that the state is protecting its citizens against undesired events.

Groenendijk, C.A., Guild, E., & Minderhoud, P.In Search of Europe’s BordersThe Hague: Kluwer Law International 2003

This volume examines the extent of the Community power and the legal meaning of the EU’s borders, as well as the ways to control (or not) the movement of persons across borders. It considers the legal texts - EC law on visas, the Regulations on visas, the meaning of borders for persons in Community law, the Schengen acquis and its incorporation into the EC Treaty (and where appropriate the TEU); national practice and its transformation with the insertion of the private sector’s responsibility for the control of borders and judicial control. The point of departure is the perspective of the individual who is seeking to cross these borders.

Part III Social Protection and Security inside and out

Bibliography

Aleinikoff, A.T. & Klusmeyer, D., Citizenship Policies for an Age of Migration, Washington: Carnegie Endowment for International Peace 2002.

Boeri, T., Hanson, G., & McCormick, B., Immigrationpolicy and thewelfare system: a report for the Fondazione Rodolfo Debenedetti [in association with the William Davidson Institute], Oxford: Oxford University Press 2002.

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

Brochmann, G., ‘The Mechanisms of Control’, In: Brochmann, G., & Hammar, T., eds., Mechanisms of Immigration Control, A Comparative Analysis of European Regulation Policies, Oxford: Berg 1999 (p. 1-29).

Cohen, S., From immigration controls to welfare controls, London: Routledge 2002.

Cornelius, W.A., Tsuda, T., Martin, Ph.L. &.Holifield, J.F, Controlling Immigration, A Global Perspective, Stanford, CA : Stanford University Press 2004.

Esping-Andersen, G., Why We Need a New Welfare State, Oxford: Oxford University Press, 2002.

Geddes, A., The Politics of Migration and Immigration in Europe, London: Sage 2003.

Guiraudon, V. & Joppke, Ch., Controlling a newmigration world, London: Routledge 2001.

Hayter, Th., Open borders: the case against immigration controls, London: Pluto Press 2004.

Ireland, P., Becoming Europe;immigration, integration, and the welfare state, Pittsburgh, PA: University of Pittsburgh Press 2004.

Jorens, Y., Schulte, B. eds., European Social Security Law and Third Country Nationals, Brussels: Die Keure 1998.

Jorens, Y., Schulte, B. eds., Coordination of social security schemes in connenction with the accession of Central and Eastern European States, Brussels: Die Keure 1999.

Lahav, G., Immigration and politics in the new Europe : reinventing borders, Cambridge: Cambridge University Press 2004.

Leun, J.P. van der, Looking for Loopholes, Processes of incorporation of illegal immigrants in the Netherlands, Amsterdam: Amsterdam University Press 2003.

Mei, A. P. van der, Free Movement of Persons Within the European Community, Cross-border Access to Public benefits, Oxford: Hart Publishing 2003.

Meyers, E., International immigration policy: a theoretical and comparative analysis, New York: Palgrave Macmillan 2004.

Miller, M.J.& Castels, S., The Age of Migration, Third Edition: International Population Movements in the Modern World, Basingstoke: Palgrave Macmillan 2003.

Minderhoud, P., ‘The Dutch Linking Act and the Violation of Various International Non-Discrimination Clauses’, In: European Journal of Migration and Law 2000 (p.185-201).

Pluymen, M. & Minderhoud, P., ‘Access to public services as an instrument of migration policy’, In: Immigration, Asylum and Nationality Law 2002 (Vol 16, no. 4/ p. 208- 223).

Roodenburg, H., Euwals, R., & Rele, H. ter, Immigration and the Dutch economy, Den Haag: CPB 2003.

Sakslin, M., ‘The Concept of Residence and Social Security: Reflections on Finnish, Swedish and European Legislation’, In: European Journal of Migration and Law 2000, p. 157-183.

Sassen, S., Transnational Economies and National Migration Policies, IMES publication, Amsterdam: University of Amsterdam, 1996.

Soysal Y.N., Limits of Citizenship : Migrants and Postnational Membership in Europe, Chicago: University of Chicago 1994.

Swaan, A. de, In Care of the State. Health Care, Educationand Welfare in Europe and the USA in the Modern Era, Oxford: Polity Press, 1988.

Vonk, G., ‘Migration, Social Security and the Law: Some European Dilemma, European Journal of Social security’, In: European Journal of Social Security, 2001 (p.315-332)

Summaries

Tito Boeri, Gordon Hanson, Barry McCormickImmigration policy and the welfare system : a report for the Fondazione Rodolfo DebenedettiOxford: Oxford University Press 2002.

Immigration is right at the top of the political agenda right now (cf. France, Germany, and Australia). This book draws together and unifies analysis of immigration into the major EU countries and the US, presenting in an accessible and clear way the major trends and dramatic developments of the past decade. While the influence of the welfare state on immigration incentives is a key issue, various other influences on both legal and illegal migration are analysed, together with the implications of migration for the market outcomes on these two.

Part I: Managing Migration in the European Welfare StateHerbert Brücker, Gil S. Epstein, Barry McCormick, Gilles Saint-Paul, Alessandra Venturini, and Klaus Zimmermann.

Part II: Immigration and the US Economy: Labour-Market Impacts, Illegal Entry, and Policy ChoicesGordon Hanson, Kenneth Scheve, Matthew Slaughter, and Antonio Spilimbergo.

Virginie Guiraudon, Christian JoppkeControlling a New Migration World,London: Routledge 2001.

This book examines the efforts of contemporary western states to control international migration. Its purpose is to circumscribe the new strategies and instruments of control thar migrant receiving states have devised at the local, national, and transnational levels to scope with new forms of migration that deviate fundamentally from classic, settlement-oriented immigration: illegal migration, mass asylum-seeking, circular migration patterns ‘on the ground’. This books explores the impact of migration flows on the development of state policies and, in turn, sheds light on the unintended consequences of policies for the new character of migration.

Controlling a New migration World covers or includes:

Recent migration control reforms in the US and Europe, offering theoretical frameworks that help explain the characteristics, and dilemmas, of policy-making in this area;

The new and potent linkage between migration and security, both at the levels of national and transnational elite rhetoric and local administrative practices;

Ethnographic accounts of migrants’ strategies and migration pattern in the post-guestworker and post-Cold War era, where legal ways of entry and stay have become fewer, travel easier, and the pool of potential migrants is steadily increasing.

Michael Bommes, Andrew Geddes,Immigration and Welfare: Challenging the Borders of the Welfare StateLondon: Routledge 2000.

Immigration and Welfare avoids simplistic and unhelpful notions of the ’threat’ of immigration to analyse the effects of immigration on national welfare states in an integrating Europe. It explores new migration challenges, such as asylum seekers and Europe’s increasingly restrictive immigration policies, and looks at the implications of such debates for immigrant and immigrant-origin communities across Europe.

Part IV Constitutionalism and civil liberties: Inside and Outside the European space?

Bibliography

Alston, Ph., Bustelo, M., & Heenan, J., The EU and human rights, Oxfort: Oxford University Press 1999.

Arnull, A., & Wincott, D., Accountability and legitimacy in the European Union, Oxfort: Oxford University Press 2002.

Betten, L., & Grief, N., EU law and human rights, London: Longman 1998.

Chandler, D., From Kosovo to Kabul: human rights and international intervention, London: Pluto Press, 2002.

Coomans, F en Damminga, M, Extraterritorial application of human rights treaties, Antwerpen: Intersentia 2004.

Kamminga, M.T, Inter-state accountability for violations of human rights, Philadelphia: University of Pennsylvania Press, 1992.

Lawson, R.A, Het EVRM en de Europese gemeenschappen: bouwstenen voor een aansprakelijkheidsregim voor het optreden van internationale organisaties, Kluwer, 1999.

Leeuwen, Marianne van, Confronting Terrorism: European Experiences, threat perceptions and policies, The Hague: Kluwer Law International 2003

Moseley, A.& Norman, R., Human rights and military intervention,[published in association with The Society for Applied Philosophy], Aldershot: Ashgate, 2002. Provost, R., State responsibility in international law, Ashgate, Dartmouth 2002.

Noll, G., Negotiating asylum : the EU acquis, extraterritorial protection and the common market of deflection, The Hague: Martinus Nijhof 2000.

Williams, W., EU human rights policies : a study in irony, Oxford: Oxfort University Press 2004.

Articles

Altiparmak,K.,Bankovic : an Obstacle to the Application of the European Convention Human Rights in Iraq?, Journal of conflict & security law, 2004, p. 213-251.

Castermans-Holleman, M., Hoof, F. van , & Smith, J., eds., The role of the nation - state in the 21st centurw: human rights, international organizations and foreign policy: essays in honour of Peter Baehr,The Hague: Kluwer Law International 1998.

Lawson, R., ‘Out of control: state responsibility and human rights : will the ILC’s definition of the "Act of state" meet the challenges of the 21st century?’,In:

Castermans, Van Hoof & Smith, eds., The Role of the Nation State in the 21st Century - Essays in Honour of Peter Baehr1998. 91-116.

Ress, G., State responsibility for extraterritorial human rights violations : the case of Bankovic, In: Zeitschrift fu_r Europarechtliche Studiën 2003 p. 73-89.

Ress, G., Problems of extraterritorial human rights violations : the jurisdiction of the European Court of Human Rights: the Bankovic_ case in: The Italian yearbook of international law 2002, 51-67.

Roberts, A., Humanitarian war: military intervention and human rights, International affairs 1993 429-450 .

Zwanenburg, M.C., Accountability under international humanitarian law for United Nations and North Atlantic Treaty Organization peace support operations, Leiden: E.M. Me_ers Instituut (Instituut voor Rechtswetenschappelijk Onderzoek) 2004.

Documents

E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF, The balance between freedom and security in the response by the European Union and its member states to the terrorist threats, Luxembourg: Office of Official Publications of the European Communities 2003.

E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF), Report on the situation of fundamental rights in the European Union and its member states in 2002, Luxembourg: Office of Official Publications of the European Communities 2002 (vol. 1).

Jurisprudence

Cyprus v. Turkey, Human Rights Case Digest 2001 p. 297-308.

Bankovic_ and Others v. Belgium and 16 Other Contracting States,Human Rights Case Digest 2001 p.1121-1124.

Summaries

Dr. Kerem Altiparmak*Bankovic: an obstacle to the application of the European Convention on Human Rights in Iraq?Journal of Conflict and SecurityLaw2004 9(2): 213-251;

* Ankara University, Faculty of Political Sciences, Human Rights Centre

Major combat operations in Iraq have ended. However, the occupation is still continuing. The United Kingdom, a party to the European Convention on Human Rights (ECHR), actively took part in this war and still controls certain parts of Iraq. Allegations that British forces had violated international humanitarian law were raised during and after the war. This article discusses whether the ECHR provides a mechanism to examine those allegations. It is considered that this discussion should be carried out under the light of a recent admissibility decision of the European Court of Human Rights (ECrtHR), given in the Bankovic case, in which the ECrtHR found that the NATO attacks against Yugoslavia fall out of the extraterritorial reach of the ECHR. The first argument of the article is that the way in which the ECrtHR interprets the term ‘jurisdiction’ in the Bankovic case is flawed. It is contended that the ECrtHR should reexamine its observations on jurisdiction, if an application concerning the conduct of British forces in the Iraqi war was brought before the court. Secondly, the article maintains that as the situation in Iraq is different from the one in Kosovo, the ECHR should apply to the region under the control of the UK. Indeed, while the Bankovic case only concerned aerial bombardment of Serbia, the ECrtHR might face various complaints emanating from the use of ground forces and belligerent occupation in Iraq.

Coomans, F., Kamminga, M.Extraterritorial Application of Human Rights Treaties,Antwerpen: Intersentia 2004.

Be as it is the result of the war on terrorism, foreign military intervention, economic globalisation or otherwise, state conduct increasingly affects the human rights of individuals beyond its own borders. This book provides a comprehensive answer to the question whether existing human rights treaties are applicable in such circumstances.

The principal treaties on civil and political rights require states to guarantee certain human rights to persons within their jurisdiction. What is the meaning of these terms? Are states able to evade the application of these treaties by detaining their opponents on foreign soil rather than within their own borders? Does it make a difference to the applicability of these treaties, whether a victim of an extraterritorial assassination by state agents, was a detainee, who had not been arrested?

By contrast, treaties on economic, social and cultural rights tend to specifically to provide that states must strive for the full realisation of these rights through international co-operation. The problem here is that the precise nature and content of this obligation is unclear. For example, what is the extent of states’ obligations to contribute to sustainable development in other states? What are their obligations as members of the executive bodies of international financial institutions such as the World Bank and the IMF?

This book focuses on the extraterritorial application of four key human rights treaties: the two UN Covenants on Human Rights and the American and European Conventions on Human Rights. It reveals that supervisory bodies are inconsistent in their implementation of these treaties and discusses the pros and cons of both a restrictive and a non-restrictive approach.

Noll, GregorNegotiating Asylum. The EU acquis, Extraterritorial Protection and the Common Market of DeflectionThe Hague: Martinus Nijhof 2000.

How are access to asylum and other forms of extraterritorial protection regulated in the European Union? Is the EU acquis in these areas in conformity with international law? What tools does international law offer to solve conflicts between them? And, finally, is law capable of bridging the foundational oppositions embedded in migration and asylum issues? This work combines the potential of legal formalism with an analytical framework drawing on political theory. It analyses the argumentative strategies used by international lawyers, exploiting the interpretative methodology of international law as well as elaborate discrimination arguments.

Taking the axiomatic tension between universalism and particularism as a point of departure, the author conceptualises the efforts to harmonise migration and asylum law in the European Union as the result of two interdependent negotiation loops: one taking place among Member States, and another between protection seekers and their host state. An extensive survey of the EU acquis and its institutional framework leads to the conclusion that both are heavily fragmented. The EU acquis contains not a single binding instruments securing the interests of protection seekers, while instruments enhancing migration control are fraught with legal and practical idiosyncrasies. Burden-sharing remains the pivotal element in the normative dynamics behind the EU acquis, and the various efforts of Member States to launch solidarity schemes are exposed to a critical analysis.

After confronting the acquis with protective norms of international law, the author concludes that the deflection of protection seekers by means of visa requirements may constitute a violation of the European Convention of Human Rights, and that the prescriptions of international law oblige Member States to apply the Dublin Convention and the Spanish Protocol in a manner which ultimately empties the law of its main control functions. He also develops an explicatory model reconstructing the case law of the European Court of Human Rights in the field of extraterritorial protection. In the final part, the argumentative interdependencies between universalism and particularism are explored, and the author explains why the European Court of Human Rights must be regarded as the most legitimized forum for the negotiation of asylum in Europe.