The transnational migration governance dilemma and Europe’s way out of the refugee crisis

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Manfred Kohler's picture

The refugee crisis in Europe is a transnational issue that extends the reach of the nation-state in the context of migration as a global phenomenon. This essay first analyzes the diffuse concept of migration governance as a mostly global or transnational phenomenon without central authority or binding rules. Then it will show why the EU and its member states have not been able to properly manage this kind of crisis while at the same time arguing that the refugee crisis is an opportunity for the EU to pioneer the authoritative regulation of migration in a two-step process that involves both the European and, subsequently, global levels of migration governance.

Migration is the most regulated least binding and least formalized issue area of world politics, as opposed to policy areas like trade (WTO), security (UNO, NATO etc.) and health (WHO), just to mention a few. The dilemma behind migration policy beyond the nation-state in general is that it is so multi-facetted and multifarious, not to speak of how politically charged this issue is. The concept of global migration governance divides into low- and high skilled labor migration, irregular migration, international travel, lifestyle migration, environmental migration, human trafficking and smuggling, asylum and refugee protection, internally displaced persons, diaspora, remittances, and root causes of migration.[1] Additionally it intersects with the policy domains of trade, investment, development cooperation, security, climate change and international politics overall. Each migration domain is dominated and regulated by different regimes, actors and principles. The only real hard law regime affecting migration concerns the protection of refugees and asylum seekers in the form of the Geneva Convention of 1951.

The negative implications of the dense forest of non-binding migration regimes can be seen in the form of the current refugee crisis in Europe, even though the Geneva Convention actually applies here. The problem of migration governance can be best illustrated by first outlining what went wrong in the current refugee crisis and why. Secondly, this article intends to outline a two-step approach to overcoming the migration challenge in Europe. 

First, the causes of uncoordinated behavior of the nation-states of the EU have both an internal and external dimension. The internal dimension can be best depicted by referring to the example of Austria. Austria, while adhering to the Schengen Agreement and to the Dublin regulations as well as to the relevant articles on migration, asylum and refugee policy as set out in Articles 67-80 of the Lisbon Treaty, suffers from an internally decentralized federalism, where key competence areas like asylum, residence permits, and citizenship are basically regulated by the the state level, not the federal one. This is why the federal government has been slow in responding to and managing the large influx of asylum seekers from mainly Syria, Afghanistan and Iraq. Only due to the great private initiative of NGOs and many Austrian people could the proper treatment of asylum seekers be ensured. Until a few days ago, the federal level could not even use its own federal housing facilities to accommodate the vast number of people seeking refuge. It had to first pass a law granting it the right to do so. The states and communal levels continue to remain divided on the number of refugees to be dispersed across the country. Austria thus suffers from a domestic problem of competence distribution within a decentralized federal system. 

The external dimension of uncoordinated nation-state behavior is first and foremost the lack of new rules to overcome the uneven distribution of asylum seekers across the EU, who have been mostly cramped in the southern periphery of the EU, mainly Greece and Italy. There has only been an agreement at EU level to relocate 120,000 people, but the long-debated quota among EU member states has not materialized. The EU rules are thus not in tune with the current transnational issue of migration from crises regions. Even though Article 80 of the Lisbon Treaty asks the Union legislator to guarantee the solidarity between member states when it comes to the distribution of asylum seekers and refugees, the heads of states and government do not want the EU to resolve this issue by at least passing a quota.

However, there is a two-step approach that can alleviate the current problems in the EU regarding the refugee crisis. In the absence of a global central and authoritative government that regulates migration in the form of binding treaties, the EU could be the first to step ahead and Europeanize an issue area that is transnational in all its facets. The legal foundations (mainly Article 80) in the Lisbon Treaty exist and just have to be used accordingly. The issue is too imminent and pressing to be ignored.

In a second step, the problem has to be tackled at the global level by drafting a migration treaty that at least better protects the least advantaged in the world, taking into account the new challenges that go beyond the Geneva Convention. This may sound naïve, but, as we all know, governance beyond the nation-state without binding decisions and procedures does not achieve a lot.  Muddling through is the result that causes chaos, confusion and fear in times of monumental migratory challenges.  

The EU is the only regional international organization that has the legal capacity to pass binding legislation on transnational issues like migration. So let us be brave and go ahead. Even though the forces of yesteryear suggest to just close the borders, nothing is solved by that. Only cooperation at the EU and global levels can solve this refugee crisis.


[1] Alexander Betts 2011. Global Migration Governance. Oxford University Press: Oxford and New York.


Great Insight: "Migration is the most regulated least binding and least formalized issue area of world politics"...