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The Wandering EUropean or The De Facto Birth of the EU Citizen

New Labor Migration Trends within the Boundaries of the Enlarged European Union

RUXANDRA PAUL

Harvard University, Government Department

Paper prepared for the ECPR Join Sessions of Workshops Lisbon, April 14th-19th 2009

Workshop # 17:

“European domestic societies in the face of European integration and globalization” (Ben Rosamond & Kennet Lynggaard)

First draft. Please don’t cite or circulate. Comments are very welcome.

Correspondence:

Ruxandra Paul Harvard University

The Minda de Gunzburg Center for European Studies 27 Kirkland Street at Cabot Way

Cambridge MA 02138, USA Email: rpaul@fas.harvard.edu

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In a world increasingly transformed by simultaneous revolutions in the fields of

communication, technology, and transportation, reductions in transaction costs and the manifest

ever-freer movement of capital, goods and services across national frontiers have led many to

believe that transnational flows “have all but eradicated meaningful national frontiers” (Messina

and Lahav, 2006: 569). This is the vaguely defined “globalization era,” in which unprecedented

challenges have allegedly started dissolving the very foundations of the Westphalian state system,

undermining key principles of modern geo-politics such as state sovereignty, territoriality, and the

exclusion of external actors from domestic authority structures. What remains of the old

international order, it is argued, is nothing but a world of “borders beyond control” (Bhagwati,

2003). Indeed, scholars supporting the “globalization thesis” (Hollifield, 1998) predicate their

arguments on the assumption that contemporary transnational social and economic forces have

severely eroded the sovereignty and regulatory power of the nation-state.

Disaster movies generally have great box office success. Similarly, an aura of fascination

surrounds arguments predicting that a future “globalization era” can only emerge on the ruins of

the current nation-state system. No matter how appealing, premature conclusions and over-

generalizing statements have to be resisted in favor of developing more nuanced and scientifically

rigorous interpretations of contemporary realities. For example, if there is considerable empirical

evidence to demonstrate a state’s “loss of control” over certain policy areas or phenomena such

as flows of capital, we cannot simply assume that this authority delegation and competence

erosion extends homogenously across policy areas to affect other transborder flows like

migration. Boundaries may become more porous for some types of transnational movement (of

goods, capital, technology, information transmitted via mass media etc.), while preserving or

amplifying their degree of impermeability for others (migration, the provision of certain services

etc.). Contextualization also matters in answering the “obstinate or obsolete” question about the

state of the nation-state (Hoffmann, 1966). Over-generalizations can be especially distorting for

the examination of the triad integration-globalization-domestic change because they obscure

concepts and logical relationships that constitute useful landmarks in differentiating European

integration (and, possibly, the dynamics of other regional integration projects – Mattli, 1999)

from patterns of globalization. Partial overlaps between these processes and their respective

consequences further complicate the analytical challenge.

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While some pundits proclaim the death of the nation-state, others point ut to numerous

indicators of the state’s obstinate resilience on a variety of dimensions and through a multitude of

institutional structures and arrangements. For instance, in coping with the transnational

challenge of migratory flows, states may build “neocorporatist” channels, recruiting nonstate

actors, local authorities, and intergovernmental forums to their service, delegating responsibilities

and engaging these new actors in regulation, implementation, or enforcement activities (Lahav,

2000). As Lahav cogently points out, such evolutions do not demonstrate a loss of regulatory state

power, but rather a transformation in the nature of state authority and an adaptation of its

concrete institutional manifestations to cope more efficiently and effectively with new challenges.

This assertion leads us to formulate a set of interrelated issues situated at the core of the present

project: are national actors “losing control” over transnational processes such as migration, as

some political scientists predict (Sassen, 1996; Cornelius, Martin, and Hollifield, 1994)? Are we

witnessing any shifts in terms of acceptable practices in the international political arena or any

modifications reflected by developments in customary and codified international law? Are new

precedents being set and, if so, what are their implications? Finally, could “control” be

apparently lost at one institutional level only to be regained at another through new formal or

informal arrangements?

Ostensibly from the above puzzles, adding the EU with its realities and its institutional

structures to the debate considerably increases the complexity of the methodological challenge.

The reframed set of questions becomes: how do states respond to transnational pressures

associated with globalization and European integration, respectively? Given the overlap between

multiple dimensions of globalization and integration, how can we most effectively disentangle

these rival variables? On what conceptual or empirical basis can we begin to sketch the zones of

non-intersection on this Euler diagram? What are the expressions that these non-intersection

zones find in the realm of international law, international relations, and in the relationship

between nation-states and their citizens? And last but not least, how is this whole exercise useful?

Finally, one could shift the direction of the causal arrows in the triad to ask a different set

of questions that assumes state agency as much more consequential. In that vein, one wonders if

states define the trajectory of European integration in response to perceived challenges deriving

from globalization. Does the EU constitute a shield against otherwise out-of-control global

forces? Is this model portable and should we expect to see it implemented in other regions? In

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other words, does European integration forecast the emergence of a world of regional blocs that

are open to the global economy in some respects, but reinvent protectionism on a bigger scale in

others?

In response to these issues, I argue that, through a thread of unprecedented developments

in international (EU) law, European integration has led to the emergence of a special kind of

“transnational space” (Portes, 1996) within the boundaries of the European Union. This paper

attempts to show how, within the crystallizing “area of freedom, security and justice,” the

evolving rules of access (“access variables” that capture state-imposed regulations of entry on and

exit from national territory – Weiner, 1985) govern “internal” migration between EU member

states in stark difference from the traditional principles of international law that still characterize

migration between non-EU countries, as well as flows originating outside the Schengen area and

having EU member-states as a destination. This new transnational space formally protected by

EU treaties offers individuals possibilities of transborder movement far superior to any equivalent

mobility-benefits derived from globalization. Basically, European integration has generated a

legal space in which we are currently witnessing the birth of the de facto EU citizen, an individual

that takes full advantage of the unprecedented transnational freedom of movement that the

Union provides. I construct a chronology of state-migrant worker relations, on the basis of which

I argue that intra-EU transborder mobility represents a final step in the emancipation of

individual workers from the constraints imposed upon them by nation-states and from the risks

associated with illegal labor markets. Free movement constitutes a cost-effective alternative to

decommodification (Esping-Andersen 1990).

Mini-Discours de la Méthode The systematic analysis of migration patterns as key to decoding the

integration-globalization interface

For the purposes of this project, following Kaufman and Segura-Ubiergo (2001) and

numerous other scholars of international political economy, I adopt a minimalist definition of

globalization as international trade integration and openness to international capital markets.

This basic definition does not exclude the possibility of incorporating other characteristics in the

analysis of globalization trends: one could discuss, for instance, the high volume of cross-border

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communications and information exchange, or make arguments about the higher level of

international diffusion of political, economic, and cultural frameworks and norms. In any case, to

avoid confusions, globalization should be separated from the often-associated concept of

interdependence, i.e. “the growing sensitivity and vulnerability between separate units” (Zuern,

2003).

Hard as it may seem to believe, there is one concept in political science that is even more

pestered by definitional problems than globalization, as every apprentice in EU studies finds out

from the most authoritative voices in the field (e.g. Rosamond, 2000). European integration can

be understood in the simplistic, ambiguous and broad glossary terms, as a process that “implies

the act of combining parts to make a unified whole – a dynamic process of change,” associated

with “the intensely institutionalized form of cooperation found in Western Europe after 1951”

(Cini, 2007: 460). Some additional guidance may be derived from the European Economic

Community’s founding document, the Rome Treaty of 1957, which emphasizes in its Preamble

the signatories’ commitment to “lay the foundations of an ever closer union among the peoples of

Europe.”1 The provision prefigures the two distinct dimensions of the Community’s future

development, the former more emphatically expressed than the latter:

1. European integration, i.e. in order to achieve an ever closer union, member states will

continue to delegate more power in an increasing number of areas to European

institutions

2. European enlargement, i.e. in order to form a genuinely European union, other countries

would join the community and participate in supranational decision-making.

Some may argue that opting for such a definition of European integration unjustifiably

exaggerates what differentiates it from other regional integration projects as well as from

globalization. Yet, even the father of liberal intergovernmentalism, Andrew Moravcsik,

acknowledges EU exceptionalism when he writes: “over the past half-century, the EU

successfully expanded its substantive scope and institutional mandate until it now stands without

parallel among international institutions”2 (Moravcsik, 2001: 161). The main problem that we

encounter in defining European integration is the absence of a clear and agreed-upon finalité of

1 Treaty Establishing the European Economic Community, full text available at: http://www.europa.eu.int/abc/obj/treaties/en/entoc05.htm 2 Moravcsik, Andrew, “Federalism in the European Union: Rhetoric and Reality”, in Nicolaidis and Howse (eds.), The Federal Vision, Oxford: Oxford University Press, 2001; p. 161.

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the EU as a geo-political entity and experiment. The Union is in constant transformation in

terms of both substance and territory (integration and enlargement), so the recurring question

“Quo vadis, Europa?” (Majone, 2005) often elicits rhetorical echoes.

Methodologically, the present paper attempts to set the foundations for a strategy that

allows researchers to examine in concert the triad globalization-European integration-change in

European domestic societies. Such endeavor requires systematic multi-level investigations

predicated on research resigns that can register and evaluate related developments unfolding,

simultaneously or sequentially, on the interfaces between (and with ramifications in) multiple

arenas: global/international, supranational, national, sub-national/regional, reaching all the way

down to local communities and to the individual level. Only creative and innovative analytical

strategies that flexibly embrace interdisciplinarity and methodological eclecticism are able to

overcome the significant conceptual and methodological challenges associated with this type of

scientific endeavor. I argue that “systematic process analysis” (Hall, 2003) constitutes a good

avenue for rendering this type of research more manageable, focused, and fruitful.

What does this recommendation mean in practice? In essence, we could start by

identifying a process (or a bundle of interrelated processes) that is deeply connected via roots,

developments and consequences with each and every one of the three studied processes

(globalization, European integration, and domestic societal change in European countries). Next,

a set of theories can be formulated and predictions can be derived about the expected patterns

that signal if the theory is valid or false. Finally, on the basis of process tracing and pattern

matching (Hall, 2003), competing hypotheses must be tested to determine the congruence

between predictions and observations; this produces a judgment about one theory’s

value/superiority relative to others. This analytical strategy generates a rich set of conclusions

about the causal processes that connect the macro, meso, and micro levels of analysis, allowing

for the incorporation of multiple research techniques including variable-oriented research as well

as small-N comparisons.

This paper concentrates on migration as a process that develops in close interaction with

and having profound consequences for global market pressures, supranational governance

(particularly in the European Union’s institutional framework), and domestic political, socio-

economic, and even cultural transformations. Migration constitutes an ideal way to tackle and

untangle the bundle of issues that forms our workshop’s focus, since there are sharp differences

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between the globalization-triggered migratory patterns and the flows facilitated by European

integration. Lahav remarks that “the strategies increasingly used to control migration make clear

that states are neither losing control nor abdicating sovereignty; rather, states seek to reduce the

costs of immigration and to control migration at the same time as they allow the free flow of

trade and goods” (Lahav, 2000). Yet, this same strategy, when implemented in two different – if

interconnected – environments, produces very different policy outcomes in the international

political arena (i.e. the globalizing world) on the one hand, and within the European project (i.e.

in the deepening and widening EU), on the other hand. In this paper, I will rely on a detailed

examination of historical trajectories, international law developments, and a related chronology

of state-citizen relations to analyze and explain contemporary varieties of migration systems.

In the aftermath of World War II, but much more noticeably after the end of the Cold

War, we are witnessing the emergence of two international migration regimes, one global, the

other continental, EU-associated. Each regime has developed its own set of principles in the

sphere of international law. As will be explained later, the global regime recognizes and protects

the individual’s right of exit from the territory of a nation-state including his own country (even

against a nation-state’s resistance, as the examination of international refugee and human rights

law shows). The regime allows exit without developing a complementary right of entry, however.

While incorporating the universally applicable right of exit that appears codified in instruments

of international law such as the Universal Declaration of Human Rights or the 1951 Geneva

Convention and the 1967 Protocol Relating to the Status of Refugees, the EU-associated regime

has developed a de facto right of entry for workers who are citizens of a EU member state seeking

employment in another EU country. This is a historic step in the direction of opening up a

transnational formally-defined and legally-recognized space in which people can move just as

easily as within the boundaries of nation-states. The right of exit in association with the

developing right of entry gives intra-EU migrant workers exceptional mobility within the Union’s

boundaries. At the same time, European treaties do impose harsher restrictions on in-migration

flows originating from countries outside the EU. This simultaneous dismantling of internal

borders and reinforcement of the EU’s external border leads to a situation in which the

formation of a postnational identity (Habermas) becomes more likely inside the “fortress

Europe.” These coupled policies can reasonably be interpreted as a creative attempt by EU

member states to develop an “antidote” that counteracts the increasing globalization- and post-

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colonialism-associated migratory pressures; this is achieved while preserving the government’s

domestic legitimacy by satisfying expectations related to economic growth through migrant

labor. To develop this facet of the argument, I will rely on Boswell’s theory concerning the

functional imperatives of the state, which emphasizes the state’s quest for domestic and

international legitimacy (Boswell, 2007).

One can also conceptualize current challenges and possible solutions in terms of voice

and exit (Hirschman, 1970). This framework provides a clear way of examining patterns of state-

citizen interaction. On the domestic scale, when the quality of the state’s policy output became

unsatisfactory, workers could mobilize and protest (exercising the voice option to push for

reform). The exit option (migration) was typically much more costly in the past. Only recently,

has it become more accessible. To end strikes and reduce discontent, governments used welfare

systems to ensure stability, provide benefits, and thus partially decommodify workers (i.e. shield

them from an exclusive dependence on markets for subsistence and wellbeing). Recently, due to

the crisis of welfare systems, governments have had to resort to other strategies to ensure societal

peace. Since domestic remedies seemed exhausted, states turned to the world economy. The

international level had been characterized by a different dynamic in the interactions between

sovereign states and individuals (migrant workers). States have historically regulated migratory

flows and still conclude bilateral deals to shape the exports and imports of workers. While

workers have been able to exercise voice within the boundaries of domestic labor markets, their

exit (opportunities for migration) have been considerably limited by states and prohibitive costs.

As workers became politically relevant as a group through the extension of franchise and

increasing role of trade unions in policy-making, the late nineteenth and especially the twentieth

century were marked by an overall improvement in working conditions and decommodification

efforts (Esping-Andersen). Increasingly, however, as the crisis of welfare systems set in, voice-

options ran into the political equivalents of obstacles that Hirshman mentioned in connection to

customer-firm relations: voice becomes too costly to sustain in the long run, since it depends on

the presence of institutions that allow for effective communication. Moreover, voice effectiveness

depends on chances of influence being wielded; this is more likely to happen in small markets for

expensive durable goods that attract few customers. To compensate for diminishing reform

opportunities by voice in the EU, states have developed by the extension of free movement the

exit option via intra-EU migration Exit is much more cost-effective as a mechanism, since it relies

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on negative integration: the removal of internal boundaries in the Union. To sum it up, within

the boundaries of the nation-state, European workers were gradually and partially

decommodified through the evolution of welfare systems. More recently, as the crisis of the

European welfare state started to manifest itself in an increasing number of liberal democracies

and as it became obvious that Western European economies depended on imports of foreign

labor, EU member-states have found an alternative solution in the emancipation of their workers

at continental-level, by granting them the possibility of exit (i.e. migration to other labor markets),

while at the same time allowing workers from other EU countries to enter the country and satisfy

existing demands for labor. Nation-states have had to diversify their repertoires of action to

maintain their legitimacy despite the emergence of new economic and political challenges.

The nation-state’s quest for legitimacy

In an attempt to evaluate theories of migration policy according to their methodological

rigor and explanatory plausibility, Christina Boswell (2007) examines responses to a central

puzzle: what explains the inclusionary tendency of migration and integration policies that

diverges so strongly from the “generally protectionist bent of public opinion in democratic states”

(Boswell, 2007: 75)? She concludes that, on the one hand, neoclassical political economy theories

produce accounts characterized by theoretical neatness and robustness, while exposing

themselves to charges of reductionism or unwarranted generalization (76). On the other hand,

neo-institutionalist approaches pay the price for providing important insights about the nature of

institutions as a mediating variable by lacking in testability or predictive power (ibidem).

Boswell synthesizes insights from both varieties of migration theory to develop the

foundations of a “third way” approach in which “societal interests and institutional constraints

are incorporated only in accordance with the functional imperatives of the state” (77). She argues

that “we can best understand migration policy by adopting the perspective of the state, and

considering how it defines its choices and constraints through the prism of its functional

imperatives” (95).

According to Deutsch (1970), legitimacy can be understood as “a function of the

compatibility of political actions and practices with the expectations and values of a particular

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public” (cited in Boswell: 88). While the content of expectations and values changes over time,

there are certain criteria of legitimacy that liberal welfare states try to satisfy. Traditionally,

nation-states have been expected to fulfill four functions:

1) Security, i.e. providing international and internal security for citizens;

2) Accumulation, i.e. providing the conditions for the accumulation of wealth;

3) Fairness, i.e. implementing policies that promote a just pattern of distribution; and

4) Institutional legitimacy (preserving the Rechtstaat), i.e. maintaining public confidence

that state practices are in accordance to the formal conditions deemed vital for the

preservation of democracy and liberty. (88-91)

As Boswell notes, “each of these four preconditions is brought into question in the sphere of

migration policy” (89). From the very beginning, these functional imperatives are difficult to

satisfy simultaneously, and migration only complicates the picture.

In particular, states find it difficult to reconcile the dual imperatives of accumulation and

legitimacy in the long term (Claus Offe, 1972). When the state becomes unable to accomplish its

ascribed role of protecting citizens from economic shock through a social safety net, the risk of a

“legitimation crisis” sets in (Habermas, 1997). “The state is expected to meet competing

requirements, and its inability to satisfactorily fulfill all four imperatives raises the risk of a

withdrawal of legitimacy” (96).

What course of action can the state adopt in response to this Cornelian dilemma in which

either course of action has some advantages but also significant detrimental effects? Peter Hall in

his critique of Offe’s theory of the state has argued that states can circumvent difficult choices by

adopting contradictory policies which, while leading to inefficient outcomes, have the benefit of

not alienating constituencies:

A state faced with multiple tasks and well-defined conflicts of interest among the social classes it governs, or the groups within these, may find it necessary to maintain a degree of deliberate malintegration among its various policy-making aims so that each can mobilize consent among its particular constituencies by pursuing policies which, even if never fully implemented, appear to address the needs of these groups. (Hall, cited in Held and Krieger, 1984)

However, even though inefficiencies undoubtedly exist, states must make certain choices that

allow them to sustain their legitimacy and capacity to govern. In particular, as Zolberg points

out, throughout history states have faced the problem of importing economically valuable but

culturally and/or politically undesirable labor, the so-called “cheap labor” coming from the

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periphery (Zolberg: 113). Throughout history, states have found different solutions to this

persistent problem, and these implemented solutions constitute the empirical basis for

distinguishing a series of migration eras in world history. The following section of the paper

reviews, expands and reinterprets Zolberg’s chronology of labor migration.

The eras of migration and the evolution of state-migrant worker relations

The evolution of the relationship between states and their citizens who are active

participants in the domestic labor market has been extensively researched. In this section, I want

to refine and reinterpret Zolberg’s chronology of labor migration so as to concentrate more on

revealing the history of the relations between sovereign states and individual migrant workers in

the international arena. Furthermore, I will update Zolberg’s historical account in order to

include the European Union as the potential harbinger of a new era of migrant worker

emancipation from state control.

Zolberg distinguishes three eras of migration, each characterized by a particular

relationship between migrant labor and sovereign states, as well as by certain developments in

international law:

I. The age of absolutism and mercantilism

II. The liberal epoch

III. Contemporary patterns

To these I add the most recent evolutions reflecting the possible emergence of a new

transnational migration regime:

IV. The current intra-EU “free movement of people” experiment

During the first era, the age of absolutism and mercantilism, sending and receiving

sovereign states exercised quasi-complete control over migration. In fact, international migration

emerged as a distinctive phenomenon starting with the middle of the 15th century, due to internal

geo-political transformations in Europe (in particular the organization of the global space into

territories controlled by sovereign states) and to geographic expansion. Beginning with the 17th

century, the crystallization of international law reaffirms and reinforces the states’ right to control

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the movement of people across their borders. Since population constitutes at the time a treasured

economic and military asset, rulers deploy “considerable efforts to police their territorial

boundaries and to confine subjects within them” (Zolberg: 112). Charles Tilly explains that there

were significant bureaucratic and state interests in controlling migration and citizens, because

taxing, drafting, and watching were all essential ingredients to ensure state survival and

consolidation (Tilly, 1978).

Migration flows do exist, but they mostly resemble the transfer of goods: states treat

migrant labor as a commodity, and the main imports of this precious merchandise occur

following almost the same modus operandi as in the case of any other commercial exchange.

Extremely little, if any, decision-power (choice) granted to migrant workers. According to

Zolberg, there were three main components of the Western migratory network in this period:

1. The importation of an estimated 7.5 million West African slaves to work on

plantations, initially in Europe or its outlying islands, and then in the New

World;

2. The relocation of two to three million Europeans in the New World colonies,

mostly under some form of bondage; and

3. The expulsion or flight of approximately one million persons from the newly-

forming European states in the 16th and 17th centuries. (Zolberg, 1978)

All in all, sovereign states initially treated migrant labor as a commodity. The basic forms

of worker migration were in the age of absolutism and mercantilism forms of slavery, bondage

and indenture (an arrangement under which the employer or a colonial labor agent bore the

costs of transfer and settlement in exchange for a seven-year contract). It was at the same time

that importation of mercenary armies became very popular; as Zolberg remarks, these were “the

original guestworkers” (114). Even migration patterns that seemed relatively voluntary against

the above background of slavery and “international commodification” were mostly forced and

resulted from official state policies: populations that were deemed “unassimilable” due to their

religion were either officially expelled (e.g. the expulsion of Jews from England and France; or of

the Moors from Spain) to ensure cultural homogeneity in the name of raison d’état, or oppressed

and attacked until they had to flee the national territory and seek refuge abroad.

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The liberal epoch is often represented as a “deviant episode in the history of international

migrations,” when a group of states relinquished to a significant degree control over both exit

and entry, allowing migration to occur without too much interference in response to push-pull

factors that influenced the migrants’ choices (Zolberg). This brief interlude of relatively less

impeded transnational mobility began in the early decades of the 19th century in response to the

overlapping influences of the demographic, industrial, and democratic revolutions. Domestically,

states extended suffrage to increasingly higher numbers of citizens. Political freedoms were

complemented by other substantial changes in the relationship between nation-states and

citizens. Modern welfare states gradually developed, replacing previous schemes of poverty relief

with a quasi-universal coverage. The decommodification of workers started (Esping-Andersen).

Despite the much freer movement of people across state boundaries and the apparently

more relaxed attitude of sovereign states towards migration, in the sphere of international law

“only freedom of exit came to be established as a sine qua non of liberal regimes” (Zolberg).

There was no parallel development in the direction of establishing freedom of entry. Indeed,

even countries that practiced during that period a de facto laissez-faire policy, insisted that they

nevertheless possessed a theoretical right to control admission to their territory, and thus the right

to restrict in-migration. Exit was permitted, and occasionally encouraged, by nation-states

because it served certain functions. For example, in the case of England after the Napoleonic

Wars, once the internal labor supply was assured, emigration provided an easy way of lowering

welfare burdens, a safety valve in the face of perennial social unrest, mechanisms for Britain to

populate its colonial empire with “culturally appropriate settlers” etc. (Zolberg). Interestingly

enough, this is the first time in which burdens associated with the operation of the welfare state

(i.e. decommodification mechanisms) are reduced by opening the possibility of international

migration, i.e. making available the “exit option.”

This being said, laissez-faire migration remained fairly controversial, particularly in

countries of destination like the United States, where the mid-19th century was marked by

frequent confrontations between “immigrationists” and “restrictionists.” Temporary migration

and its residue of permanent settlers stirred negative reactions and resentment in many countries,

followed by a corresponding revival of stricter regulations. Still before World War I, the low level

of movement and modest welfare entitlement facilitated international movement free of passports

and of elaborate systems of control (Lahav, 2000).

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In the twentieth century, one by one countries withdrew into protectionism, economic

closure and very strict control of in-migration. Not only did admission gates close, but also many

states erected more effective barriers against exit to impose immobility. There was a reassertion

of the principle of non-interference in the domestic affairs of sovereign states. Meanwhile, the

world started producing refugees in numbers surpassing those of voluntary migrants, as people

were displaced by the breakdown of empires and the emergence of new nation-states in the

aftermath of World War I. In the course of social revolutions or counterrevolutions, as non-

democratic regimes attempted radical transformations of societies in their ensemble, entire

classes were targeted and cast in the role of victim-groups (Zolberg). As Charles Tilly argued, the

twentieth century saw an expanding role of political controls and pressures in shaping migration,

as war, deliberate relocation of ethnic minorities and stringent national controls over

immigration and emigration reaffirmed the states’ power over migratory flows (Tilly, 1978).

Within Zolberg’s broadly defined category of contemporary patterns, I would like to draw

what I believe is a relevant distinction between the above developments that characterized the

interwar period, and those subsequent to World War II. While some features of the international

migration regime that emerged after WW I persisted and can still be found in current policies

and international norms, many realities changed dramatically after WW II and during the first

years of the Cold War. Since the post-WW II principles constitute the bases of the current

international migration regime, I analyze them in further depth in the next section of the paper

before turning to the most recent evolutions within the framework of the European Union.

“Free to leave” codified: The post-WW II international migration regime

The post-war era brings a few novelties in terms of international law. First, not only

states, but also individuals, are legal subjects under international law. Second, states are

increasingly obliged to respect a crystallizing “law of migrants” (Joppke, 1998; citing

Perruchoud). In the second half of the twentieth century, the international community came to

acknowledge and codify its special obligations towards refugees. Since the signing of the United

Nations Declaration of Human Rights in 1948, the right to leave one’s country of origin has been

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generally recognized as a fundamental human right (Lahav and Messina, 2006: 2). Article 12 of

the Declaration states that “Everyone has the right to freedom of movement and residence within

the borders of each state” and “Everyone has the right to leave any country, including his own,

and to return to his country” (UN International Migration Report). A corresponding right of

persons to enter countries other than their own has never evolved (Lahav and Messina, idem

supra); in fact, a universal and unambiguous consensus has developed around the opposite

principle, namely that every state has the right to restrict the entry of foreigners (Zolberg, 1981;

Weiner, 1985).

Indeed, the early 1950s witnessed an accelerated development in the area of international

refugee law with the emergence of a supporting liberal international regime for refugees, a

regime which facilitated during the Cold War the flight of many individuals from communism

(Hollifield). The 1951 UN Convention relating to the Status of Refugees reaffirmed and extended

by the 1967 Protocol constitute the international legal instruments on which the regime is

predicated. The office of the United Nations High Commissioner for Refugees is the major

international refugee agency. However, governments remain the dominant actors (Rogers and

Copeland, 1993). Under the current international migration system, host states generally grant

asylum and refugee status on the basis of the principle of nonrefoulement (i.e. nonreturn) – Article 33

of the Convention – and this is done for a number of humanitarian and political reasons. Yet,

refugees have generally been given few opportunities to participate in the decision-making

processes affecting them (ibidem).

States have occasionally decided to open entry to certain categories of individuals, but the

definition of such categories has remained subject to the discretion of national governments. For

instance, as Weiner (1985) explains in his work on the connections between international

relations and international migration, countries frequently offer open entry to those with whom

their population shares a close ethnic affinity (e.g. the French government’s decision to allow free

entry to the pieds-noirs from Algeria). Also, countries have selectively permitted entry to

individuals from another people/state with whom they have had historic ties or in cases in which

a sense of obligation or guilt exists (e.g. the Dutch admitted people from Timor).

From the point of view of migrant labor, the postwar reconstruction effort and the

increases in international economic competition pitted Western European countries against one

another in a competition for foreign workers (Messina and Lahav, 2006: 148). Many states with a

16

colonial past, such as Britain, France and the Netherlands, actively recruited foreign labor, while

others like Germany and Switzerland built guestworker systems that allowed for the rotation of

workers in and out of the receiving society, according to the demands of the labor market and the

business cycle. Yet, due to the unlimited supply of (unskilled) labor readily available, advanced

states had few incentives to cooperate and build international regimes for managing worker

migration. Instead, they relied on bilateral agreements with the sending countries for bringing in

temporary workers (Hollifield, 1998). Once more, governments maintained the first hand in

determining and regulating migration flows, which did not come as a surprise for the social

scientists who had long been discussing the structural dependence of European economics on

alien labor and the migrant workers’ reduction to the status of “subproletariat” within receiving

economies (Freeman, 1978).

With the end of the Cold War and the dismantling of the Iron Curtain, the refugee

regime associated with the obsolescent realities of the post WW II world underwent certain

modifications. Changes were inevitable since the regime had been established at a time when

governments thought it would be temporary; after the fall of communism in Central and Eastern

Europe, any rationale for maintaining it vanished. Over the last two decades, liberal democratic

states that are potential destination countries for migratory flows originating in the East have

adjusted to the new geo-political realities and worked towards restricting migration. Given

security concerns in the aftermath of the 9/11 terrorist attacks, restrictions on migration policy

have increased in many states (Givens, Freeman and Leal, 2009).

In the era of globalization, while the logic of trade and finance is one of openness, the

logic of international migration policy remains one of closure (Hollifield, 1998). The rules for

entry and exit of economic migrants are still controlled by nation-states, not by international

organizations like the United Nations, the International Organization for Migration or the

International Labor Organization. The EU constitutes a major exception (ibidem). This is one of

the important conclusions that can inform attempts to analyze in concert the triad globalization-

European integration-change in European domestic societies, as will become more evident in the

next section in which EU-associated developments are examined.

17

The dawn of a new era? Intra-EU migration and an emerging right of entry

Against the backdrop of state-controlled international migratory flows, the European

Union and the emergence of the Schengen area stand as a unique experiment. The European

Economic Community’s decision to allow citizens of member states free movement across

internal boundaries represented for some a historic step toward restraining full member-state

sovereignty and redefining older collective identities to foster the emergence of a novel

“European nationality” (Weiner). For others, it signaled the emergence of a “postnational

membership” predicated on a postnational regime for human rights (Soysal, 1994). The EU

migrant regime functions only for nationals of states that are members of the Union, but even

within that category it allows for discrimination. Member states can impose numerous temporary

obstacles and gradual implementation schemes to limit or delay free movement of people. While

the UK, Ireland and Sweden did not restrict access for workers from Central and Eastern

Europe in the first place, when the first wave of postcommunist countries joined the Union in

2004, Finland, Spain, Portugal and Greece only decided to lift restrictions two years after

enlargement in May 2006. France decided to phase restrictions out over a transition period of

several years3 (it still has a “closed-door” policy towards workers from Romania and Bulgaria).

The Schengen group has developed a set of rules for dealing with migration of third

country nationals, especially asylum seekers. This multilateral regime is highly restrictive and

aims at helping member states restrict refugee migration and fight “asylum shopping” by giving

refugees the right to request asylum in the first Schengen state in which they enter the union, but

allowing for migrants who transit through a “safe” third country to be sent back to that state

instead, to be refoulés (Hollifield, 1998).

An overview of EU legal developments (text of the treaties and European Court of Justice

– ECJ) with respect to free movement of workers and EU citizenship is necessary before

discussing the revolutionary nature of intra-EU migration. Implementing the principle of free

movement constitutes a central objective of the European economic integration project and a sine

qua non condition for creating and consolidating the internal market. Article 14 (1) of the Treaty

establishing the European Economic Community asserts that “the Community shall adopt

3 EurActiv, News section (published 07/24/06), “Italy opens borders to workers from Central and Eastern Europe,” Internet source: http://www.euractiv.com/en/mobility/italy-opens-borders-workers-central-eastern-europe/article-156904

18

measures with the aim of progressively establishing the internal market…” The second

paragraph defines the internal market as comprising “an area without internal frontiers in which

the free movement of goods, persons, services and capital is ensured in accordance with the

provisions of [the] Treaty.” These main internal market features are commonly known as the

‘fundamental freedoms’ guaranteed by the Treaty.

In its case law on free movement of goods and persons, the ECJ initially adopted the

model based on discrimination, the stance that intruded the least into the regulatory autonomy of

Member States. According to the discrimination model, Community provisions bite whenever

national measures contain protectionist elements; that is, whenever Member States favor

domestic over imported goods, or protect their citizens and companies by discriminating against

nationals and firms from other Member States. For instance, in the case of free movement of

goods, a publicity campaign organized by the Irish government to promote sales of domestic

goods was identified by the Court as discriminatory towards imported products.4 In the case law

on the free movement of persons, the ECJ ruled that the French Maritime Code breached Article

39 by requiring a certain proportion of the ships’ crew to be of French nationality.5 The

discrimination-based model does not interfere with the substance of national measures. Member

States remain free to regulate how goods are produced and services provided, on condition that

their regulation applies equally to home and host State goods or persons (Barnard: 18). If a

measure is unjustifiably discriminatory, EC law requires the discriminatory element to be

eliminated, but the measure’s substance remains intact.

Countries could get around this judicial filter by adopting rules which did not directly or

indirectly discriminate between goods, persons or companies dependent upon the country of

origin, but which nevertheless created significant barriers to free movement. To identify such

measures, the discrimination-based model was obviously insufficient. An efficient alternative to

stimulate free trade was a model focusing more on the objective of establishing and consolidating

the common market. The market-access model, however, intrudes much more into national

regulatory autonomy: the measure is struck down even though it may not discriminate on

grounds of nationality, solely on the grounds that it is liable to impede or render less attractive

4 Case 249/81, Commission v. Ireland [1982], ECR 4005. 5 Case 167/73, Commission v. French Republic [1974] ECR 359.

19

the exercise of Community freedoms. Currently decisions on the free movement of persons rely

more on the principle of market access (Barnard).

“The free movement of persons has always been an area of greater sensitivity than the

free movement of goods. People raise security and welfare implications in a way that goods do

not” (Barnard: 232). As the European Community progresses from its initial economic dimension

towards developing a political facet, the connection between economic activity and free

movement of persons gradually erodes. A shift in perception has occurred: the European

institutions evolved from treating migrants as mere factors of production to viewing them as

individuals with rights against the host State. A Member State can invoke reasons of public

interest to justify a national measure only if that measure is compatible with fundamental rights

(idem, 244).

Yet, if decisions to enforce national immigration laws are caught by Community law, 6

any national measure could arguably be perceived as obstructing trade. By analyzing the ECJ

case law on freedom of movement in the framework of the European integration project, one can

notice that European institutions have tried to maintain the equilibrium between the negative

and positive dimensions of integration, between removing obstacles to trade and positively

harmonizing economic legislation. The ECJ is the European institution that can eliminate

obstacles to market integration. Its approach to performing this function has evolved from a

discrimination to a market access based model, an evolution leading to an accentuated intrusion

into the Member States’ autonomy.

The symbolic move from a European Economic Community to a European Community

and, in particular, the “making of the Europeans” in constitutionalized form entailed, among

other treaty provisions, the introduction of the status of citizenship of the Union. Contained in

Part Two of the European Community Treaty, the citizenship provisions (Articles 17 to 22)

establish and describe a new, unprecedented kind of citizenship, that depends on and

complements national citizenship without substituting it, while adding rights and duties to the

legal heritages of each individual who is a national of one of the Member States: “Citizenship of

the Union is hereby established. Every person holding the nationality of a Member State shall be

a citizen of the Union. Citizenship of the Union shall complement and not replace national

citizenship” (Article 17, paragraph 1) and also “citizens of the Union shall enjoy the rights

6 Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-6279.

20

conferred by this Treaty and shall be subject to the duties imposed thereby” (Article 17,

paragraph 2). This section of the Treaty continues by predicating the rights of movement and

residence on the newly-created notion of European citizenship. Article 18 (ex Article 8a) provides

that “every citizen of the Union shall have the right to move and reside freely within the territory

of the Member States, subject to limitations and conditions laid down in this Treaty and by the

measures adopted to give it effect.” The remaining citizenship provisions establish a limited set of

political rights of relative practical and symbolic significance.

Although the notion of European citizenship ostensibly opened a new path towards

furthering integration, its initial impact seemed rather unimpressive, particularly given the fact

that a comprehensive regime on the rights of movement and residence of Member State

nationals (formed on the basis of the fundamental freedoms, implemented by secondary

legislation and foregoing directives) already existed. In some situations in the early days of the

European Union, the European Court of Justice made it hard to distinguish between concrete

and profound reliance on Article 18 and immediate cross references to existing relevant other EC

legal provisions. While critics of EU citizenship have emphasized the initial paucity of rights

created, in time, the subsequent ECJ case law as well as legal developments through

modifications of the secondary legislation (i.e. Directive 2004/38/EC: European Parliament and

Council Directive of 29 April 2004 on the right of citizens of the Union and their family

members to move and reside freely within the territory of the Member States) helped to flesh out

and expand the concept of European citizenship. Currently, it constitutes a dynamic notion,

capable of evolving in synch with the progress of European integration.

Let us briefly review the political rights that EU citizenship directly confers. Article 19

gives the citizens of the Union the right in a Member State other than that of their nationality to

vote and stand as a candidate both in municipal and in European Parliament (EP) elections.

Article 20 provides that EU citizens have the right to the protection of diplomatic authorities of

any Member State in a third country where their own Member State is not represented. Article

21 grants citizens the right to petition the EP and apply to the European Ombudsman. Union

citizens have the right to write to any Community institution in one of the official languages and

to receive the answer in that same language. Finally, Article 22 requires the European

Commission to report every three years on the application of these provisions on Union

citizenship.

21

What is the most significant, however, about the EU citizenship and expanding free

movement of people within the EU are the precedents they set in the sphere of international law

and the modifications they bring about in the relationship between states and individuals.

Implicit in the idea of free movement of individuals across national boundaries is the existence

not only of a right to exit, but also, and most importantly, of a right of entry. This does not

happen only in exceptional situation, as is the case in international refugee law, but rather as a

part of normal routines. This constitutes a major break from the universally recognized right of

sovereign states to determine whether and which foreign citizens can enter or reside within their

territories. For the first time, migrant workers who are EU citizens become gradually

emancipated from the restraints previously imposed upon them by national governments.

Certainly, there are still significant differences between the mobility enjoyed by workers from

Central and Eastern European member states and that available to citizens of older members as

well as within the Eastern European camp, but one by one older EU members have opened up

to accept intra-European migration. How does the current regional migration regime differ from

the typical temporary guest-worker programs run by states? In what follows, I will show that the

divergence is stark; again the EU transforms profoundly state-individual relations by empowering

the latter and preventing several forms of ‘commodification’ (of treating workers like mere

merchandise) by the former.

In 2006, Italy decided to lift restrictions on intra-EU migration one week after the

discovery by the Italian police of a slave-labor camp in Puglia, in which 113 Polish nationals were

forced to work in terrifying conditions, tortured, raped, abused and guarded by armed ‘kapos’

and dogs. Workers were forced to work up to 15 hours a day and were fed little more than bread

and water.7 Such enslavement is rendered possible in the context of illegal labor markets, but also

through the functioning of legal guest-worker programs. Temporary worker programs often

“create a sub-class of workers who are effectively unable to defend their rights.” As Guskin and

Wilson point out, critics of guest worker programs compare these to “a modern form of slavery,

because workers are generally not allowed to change jobs, and have no real way to fight back

when they are cheated out of promised wages and faced with substandard living and working

conditions” (Guskin and Wilson, 2007:109). Migrant workers are afraid to report abuses to the

7 “Italian Police Free 113 Poles Living in Slave Labor Camps,” The New York Times, July 19, 2006 (online edition); EUobserver.com; The Chicago Tribune.

22

police for fear of losing their job and being deported. Sometimes employers hold onto the

workers’ passports and other documents to prevent them from running away (idem, 115).

The free movement of individuals eliminates the risks of illegal labor markets, as well as

the abuses associated with temporary worker programs ran on the basis of bilateral agreements

between sovereign states. For the first time, migrant workers have the possibility to make their

own choices, and freely pursue advantageous employment opportunities within the boundaries of

the European Union. Going back to Boswell’s theory of the functional imperatives of the state,

one can see that extending the right to free movement to individuals contributes towards meeting

several functions. First, for Western and Eastern European countries alike, migration facilitates

the realization of accumulation. As a report by Deutsche Bank points out, freedom to move has

the same effect as free trade, with the usual integration benefits expanded from tradable to non-

tradable goods (Deutsche Bank Research, 2003). Free movement of people also serves as a cost-

effective alternative to decommodification: the crisis of welfare states across Europe has made it

clear that existing systems are not be sustainable in the long run. As states become increasingly

unable to shield workers, a cheaper alternative to institutionalized domestic decommodification

needs to be found to ensure the citizens’ wellbeing. The removal of boundaries and negative

integration provide another route to empowering citizens. By granting free movement across

national boundaries on EU territory, member states fulfill both the function of accumulation and

that of institutional legitimacy (Hammar).

By implementing the Schengen regime and reinforcing the Union’s external border, EU

member states also attempt to fulfill the function of security and fairness: a hard outer frontier is

believed to protect EU countries from security threats and transnational crime, and harsh

restrictions of in-migration ensure what a large part of the public thinks is a “fairer distribution of

wealth,” i.e. the state benefits from the advantages of limited labor market integration in a more

homogenous environment, while protecting society from the more “dangerous” global migratory

flows associated with globalization.

23

Wandering EUropeans

This paper constitutes the beginning of a longer journey. It is the author’s attempt to

build a conceptual and methodological framework in which one can examine the new migratory

patterns that are currently emerging within the boundaries of the European Union. In particular,

I would like to continue my work in the direction of integrating into existing typologies and

theories of international migration the EU experiment and the associated developments it has

triggered in the field of international law and in the history of relations between sovereign states

and citizens. To achieve this, it is necessary to develop a research design capable of examining in

concert the triad globalization-European integration-change in domestic European societies.

Systematic process analysis seems to be the methodological strategy that allows the productive

incorporation of both neoclassical political economy and neo-institutional approaches à la

Boswell. Next year, with the generous support of a Chateaubriand Fellowship, I will work on

developing an updated more ample typology of international migration to compare and contrast

emerging intra-EU migratory trends with post-colonial patterns as well as with other flows

associated more generally with globalization.

On another dimension, I am interested in identifying and analyzing the political,

economic, social, and cultural consequences of intra-EU free movement of persons. There are

already signs that European domestic societies are radically transformed by the opportunities

derived from the availability of the “exit option” (Hirschman). Through the development of a

right of entry without equivalent in international law, the EU experiment has generated a new

and institutionally protected transnational-European space where individuals can relocate and

make their own decisions with respect to employment. Within the continental oasis somewhat

shielded from the pressures of globalization, a new category of de facto EUropean citizens has

emerged.

In the enlarging European Union, as “postnational membership” (Soysal) became a

palpable reality for citizens of postcommunist Central and Eastern Europe, traditional bonds

between individuals and states were redefined. These new EU citizens were eager to take their

country’s Union membership very seriously (after all, post-communist countries are still working

hard to demonstrate their European-ness), and make the most out of the rights and opportunities

that came with it. I call this new kind of European citizen the wandering EUropean because he

24

(and increasingly more frequently she due to the pronounced feminization of migration) is a

genuine migrant who lacks the potential-settler aspirations that have generally characterized

most international migratory patterns, past and present. Increasingly liberated from the

constraints of nation-states and the dangers of illegal labor markets, wandering EUropeans

(usually citizens of Eastern European new EU countries) pursue employment opportunities

abroad and return home to use their earnings in the most advantageous way, as the case of Polish

migrants in Britain demonstrates.

Certainly, these individuals are not decommodified in the traditional sense of the word,

since they still depend on selling their labor in the market for making a living. Yet, for the first

time, they are in control: they can exert both voice (within the nation-state) and exit (to work

temporarily abroad), and combine these options in accordance with their preferences. Due to the

political rights derived from EU citizenship, they have many more opportunities to participate in

supranational politics at the EU level (as always, the big question is whether they are willing to do

that). Wandering EUropeans make a tremendous contribution to the development of their

communities of origin through remittances and investments: in Poland and Romania, for

example, what used to be impoverished small towns and previously underdeveloped rural

communities are witnessing unprecedented prosperity and development. In turn, East Central

Europe has become a main destination for migration into the EU. These countries are witnessing

unprecedented increases in heterogeneity, as thousands of migrants from Asia and Africa arrive.

As a result, the region finds itself at the intersection between major flows of intra-EU migration

and more traditional globalization-associated guest-worker migration flows originating in less

developed regions of the world and having the EU as destination.

These socio-economic developments and the reconfiguration of wealth distributions as a

result of increased migration have not gone unnoticed. In particular, the political scene of the

origin countries of wandering EUropeans has started to change. Aware of the potential of

migrant constituencies, an increasing number of politicians have reoriented a great part of their

electoral campaign efforts toward diasporas and migrant workers. In 2008, for instance, the

Romanian President Traian Basescu informally launched the electoral campaign for his party

(the Democratic Liberals) by paying a visit to the very large Romanian community in Spain (the

main destination country for Romanian migrant workers). For the electoral year 2008, the

number of voting offices for Romanians in Italy and Spain has tripled compared to the previous

25

parliamentary elections. Special representation of Romanians abroad into the legislature

currently includes four seats in the Deputy (lower) Chamber of Parliament (two for the EU area

and two for the Middle East, Asia, and North America), and two seats in the Senate (one for the

EU and the other for the Middle East). 8

In the next phase of the project, I want to focus on collecting data about the political,

socio-economic and cultural consequences of free movement of workers in countries of origin. In

particular, I would like to find out if there is a EU-specific “culture of migration” emerging in the

migrants communities of origin, like the one documented by Massey in his work on change in

repertoires of behaviors, sentiments and values in sending regions (Massey et al., 1987; Alarcon,

1992). It would be fascinating to find out if the experience of free movement within the

boundaries of the EU triggers changes in the wandering EUropeans’ values, political behavior or

level of involvement in local, regional or national politics. More recent research on the pro-

immigrant sentiment in the United States has found, for instance, that people who have lived

abroad are significantly more pro-immigrant (Haubert and Fussel, 2006). I would like to see if

similar correlations exist among wandering EUropeans (e.g. Eastern Europeans who have

worked abroad are more tolerant of societal diversity and pro-immigrant).

Conclusion: How EU-like is the future of the international migration regime?

Simply asserting the exceptional nature of the EU and the Schengen (Hollifield, 1998:

181) is never sufficient. This paper has traced the evolution of labor migration flows over time, to

put contemporary developments in an ampler historical perspective. It has expanded classic

migration chronologies (Zolberg, 1983) by incorporating the developments that have occurred

under the aegis of the European Union. The state and its responses to internal/domestic and

external/international pressures are located at the center of this analysis. To maintain legitimacy

on both fronts, sovereign states engage in a complicated attempt to balance the different

functions that they are expected to fulfill. As Peter Hall has pointed out, the results of this

compromise do not need to be efficient or coherent.

8 Oprea, Cristian, “Basescu a inaugural campania electorala a PD-L in Spania,” Cotidianul, online edition: 10/05/08.

26

The possibility of free movement of people within the boundaries of the EU offers a new

avenue for fulfilling these expectations for member states. With the collapse of welfare systems

across Europe, governments have witnessed the erosion of their possibility to ensure the expected

(high) degree of decommodification for their workers. The European sovereign state’s ability to

carry out the accumulative, fairness and institutional legitimacy functions has also been

threatened by the pressures of the international economy (forces associated with the current era

of globalization). Intra-EU free movement of individuals has been the solution that member

states pursued, while reasserting in the international political arena their right of controlling

globalization-associated flows of migration originating outside the Unions’ borders.

The EU has developed a right of entry that remains unique in international law. At the

continental level, this has created a “transnational space” (Portes 1996) that allows migrants who

are citizens of EU member-states the possibility to transcend traditional national regulatory

obstacles to individual mobility. This space does not function without the consent of nation-

states, though, and does not indicate a “loss of control.” Indeed, states do appear to have a

choice: while the logic of international trade and global finance is one of openness, the logic of

migration policy remains, on an international scale, one of closure.

Some argue that the intra-EU evolution of free movement of people across national

boundaries amounts to the construction of an international migration regime. The above analysis

demonstrates that the EU is in fact a new migration regime; however, it is a regional, not a global

regime. The EU adopts the same standards as nation-states in international relations when

interacting with non-EU countries. As Hollifield observes, “most international regimes have had

a long gestation period, beginning as bilateral or regional agreements” (1998), so we cannot

exclude the possibility that the Union’s internal migration regime may evolve and apply on a

broader scale at some point. Given the unclear long-term consequences of the current economic

recession, however, countries will most likely refrain from experimentation in the proximate

future.

27

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