Evelinn Mikkelsen. Thesis submitted for the Master Degree in International Social Welfare and Health Policy

Transcription

1 Evelinn Mikkelsen How international relations between the European Union and the African Union affect the protection of Human Rights of African refugees who aim to seek asylum in Europe. Thesis submitted for the Master Degree in International Social Welfare and Health Policy Spring Term 2012 Faculty of Social Sciences Oslo University College 1

2 Abstract The European Union immigration policy regulating the migration flow into Europe does not give any legal possibility for refugees to enter with the aim to seek asylum. In this sense EU`s practice can be understood to stand in contrast to the Universal Declarations of Human Rights stating the possibility to seek asylum from protection as one of the human rights. This thesis asks; to what extent can the AU safeguard human rights of African refugees who aim to cross borders to Europe in order to seek asylum, when such compliance also seem inconsistent with the current EU immigration policy? In order to answer this research question, the thesis analyses different policy documents both from the AU and the EU with regards to the situation of refugees as well as protecting their human rights in the process of seeking asylum. It also analyses negotiations and interrelations between the two organisations in this context. Based on international relational theory the research utilizes this analysis and discusses both from a realist and a social constructivism perspective the synergy between the AU and the EU seen in relation to power and how power can be expressed in this complex international relation. The thesis reveals the AU`s position in international relations. It concludes that the AU can be seen as an organization with moderate autonomy in which consequently implies a small extent of influence and power in international relations. The EU in contrast has a stronger autonomy with power to exert impact on international relations. Therefore this thesis concludes that it seems difficult for the AU to safeguard the human rights of African refugees aiming to seek asylum in Europe and counteract EU`s immigration policies. 2

3 Acknowledgements First and foremost I would like to give my appreciation to my supervisor, Ivan Harsløf. He has been exceptionally patient, flexible and responsive in the process of supervising me through the writing. The suggestions, advises and critics that he provided, helped me see the content from other perspectives of which I learned a lot. Furthermore I would like to give thanks to my friend Hanna Sofie Johannessen. She has been a supportive figure for me and functioned as my second supervisor, a great support to have in a stressful period. The English language in this thesis was improved by assistance from Karin Askeland into a more academic language. This has definitely led to an improvement of the thesis, of wish I am grateful. My appreciation also goes to my family and especially my mother, Inger Mikkelsen. She has been supportive during the whole period I have been working on the research and assisted me in every possible way. Last, but not least has my boyfriend, Amrish Baidjoe been a great support for me. He has given me confidence and belief that has helped me through the process of writing. He has also read through the thesis and provided advises and encouragements of which I believe has strengthened the research. 3

4 Preface The Master s programme in International Social Welfare and Health Policies which I am about to complete with this thesis has provided me with a basis of knowledge on how to compare and analyze international social welfare and health policies. I have intended to build this thesis on the knowledge accumulated throughout the programme. The topic of this thesis, how international relations between the European Union (EU) and the African Union (AU) affect the protection of Human Rights of African refugees who aim to seek asylum in Europe, is relevant in this context for several reasons. Firstly it compares two central international actors and their policies. Secondly it discusses how international politics have consequences on an individual level. Furthermore it also concerns contemporary challenges relevant to the current global situation. It was through the Master course, migration, ethnicity and multiculturalism that I first became aware of this issue when writing an examination paper in the fall of During this assignment the focus was directed towards what impact EU policies have on the opportunities for African refugees to seek asylum within the Schengen area. The work on this paper resulted in a great learning process for me and it increased my awareness and interest of the different issues within this specific field. Although I have always been aware of the discussion concerning the population flow into Europe, I have never understood the actual impact that the EU has on this vulnerable group of refugees wanting to seek asylum in Europe. For these reasons I wanted to build my master thesis on this knowledge and explore in more detail the role of the African Union has taken up with regards to this situation. 4

5 Table of Contents 1.0 INTRODUCTION Research focus and question Background and relevance Migration- a global challenge EU`s immigration policy The structure of the paper THEORETICAL FRAMEWORK International relations theory Realism Social constructivism Power in international relations METHODOLOGY Data sources Ethical considerations Study limitations and assumptions ANALYSIS OF THE INITIATIVES LAUNCHED BY THE EU AND AU TO SAFEGUARD THE HUMAN RIGHTS OF REFUGEES The European Union (EU) The African Union (AU) The Organization for African Unity (OAU) The establishment of the African Union (AU) Interrelations and negotiations between EU and AU on the issue of migration The joint Africa-EU Declaration on Migration and Development The Africa-EU strategic partnership; A joint Africa-EU Strategy Euro-Mediterranean agreements DISCUSSION Power in international global relation processes between the EU and the AU The EU and AU as autonomous actors How does the EU and AU exercise power in international relations What restricts AU`s influence in partnership with the EU? What forms EU s interest to maintain its immigration policies

6 5.4 What interest does the AU have to safeguard the human rights of African refugees aiming to seek asylum in Europe? What initiatives could be taken by the AU in order to safeguard the human rights of African refugees aiming to cross borders into Europe with the purpose to seek asylum CONCLUSION BIBLIOGRAPHY

7 1.0 INTRODUCTION One of the most fundamental rights for refugees that everyone has the right to seek and to enjoy in other countries asylum from persecution is stated in the Universal Declaration of Human Rights, article 14. The Declaration was adopted by the United Nations (UN) on the 10 th of December 1948 and is built on freedom, equality and rights for individuals and groups. Despite the fact that all European Union (EU) member countries have recognized and signed this Declaration, a deficiency seems to be reflected in EU`s policies regulating the immigration flow into Europe. As will be seen, the EU legislation can be understood to rule out any legal options for refugees to enter Europe with the purpose to seek asylum within the Schengen area (Bø 2002, 360). As part of the strategy to reduce the illegal immigration into Europe, the EU has implemented agencies that exclusively work to counteract illegal immigrants from reaching the European borders (T. E. EU 2009). Illegal immigrants in this sense also include refugees in desperate need of protection on their way into Europe to seek asylum. Consequences imply leaving refugees in search for asylum resort to illegal pathways. An already vulnerable group of people in need of protection is then being exposed to even higher risks since illegal ways are often more dangerous and as statistics have shown, lead to a high number of deaths on a yearly basis (Spijkerboer 2007, 131, 136). One might ask how the EU is able to maintain their current immigration policies without political interference from other actors on the international scene. One of the organizations of which it would be reasonable to expect objections from is the African Union (AU). According to Castles and Miller, the African continent, seen in relation to its total population, contains the highest number of migrants (2009, 9). Although most of the migration in Africa is within the continent, there has also been a continuingly intercontinental movement, mainly towards Western Europe (Castles, Miller 2009, 156). In this sense is African refugees aiming to seek asylum in Europe one of the groups affected by the EU`s asylum policy. One of the AU`s main objectives is to advance and protect the best interest of the African population and the continent (AU, accessed 6 th of June 2011). A seemingly assumption would therefore be that the AU would take measures to influence upon EU`s management of African refugees and asylum seekers in order to re-establish rights for the African refugees. 7

8 1.1 Research focus and question The main aim of this master thesis is to gain a better understanding of the AU`s position in international relations involving issues regarding refugees and asylum seekers. More specifically it is to explore AU`s position in focus of the role that the EU plays in regard to the situation of African refugees and their possibility to seek asylum in Europe. The research question is; to what extent can the AU safeguard human rights of African refugees who aim to cross borders to Europe in order to seek asylum, when such compliance also seem inconsistent with the current EU immigration policy? This research question encourages exploring the synergy between the EU and AU with regards to the protection of human rights of African refugees aiming to seek asylum in Europe. By synergy is meant how the EU and AU negotiate, establish and comply with policies on these topics. This exploration is interesting and important for reasons that shall be elaborated in the following section. 1.2 Background and relevance International relations and politics seem to affect migration flows through provisions and regulations. The possibilities for African refugees to migrate to Europe is influenced by policies and agreements made by both the EU and the AU. Yet how and to what extent these two international organisations have an impact on policy differs depending on their interests, position and possibilities, respectively, in relation to the specific matter of concern regarding migration. Organisations` independence and autonomy as well as how the power is implied in international relations are important factors in this regard. In order to answer the research question it is therefore relevant to understand the role of the AU and the EU as well as the power dynamic in the relationship between the two organizations Migration- a global challenge According to the International Organization of Migrations (IOM) web pages is migration understood to currently be one of the main global issues. This leads from the fact that the number of migrants has never been as high as in the twenty first century (IOM, accessed 17 th of January 2011). It is a global challenge with several complex dimensions. This, in addition to its increasing scope, makes migration a highly contested issue in global politics. 8

9 Human migration can be understood as a phenomenon where individuals or groups of individuals move with the purpose of settlement in another designated area either within or across national borders (IOM, 2004, 41). If this movement involves crossing borders without legal consent from the receiving destination country, the individuals or groups are considered illegal immigrants. A term closely related to illegal migration is irregular migration. This term is applies when migrants cross borders while not taking in account rules and procedures managing migration flow (IOM, 2004, 31, 34). There are several ways in which migration can be divided. In this thesis it is the distinction between voluntarily and forced migration that will be emphasized. Voluntary migrants choose to migrate on their own initiative often with a purpose to gain benefits such as work, family reunification or better living conditions. The decision for forced migrants to move is often based on external factors that more or less force a person or group to migrate. These external factors can be threats, persecution and physical force (Castles, Miller 2009, 188). The essential distinction between the two terms is nevertheless the migrants own experience of self-determination meaning to what extent the migrant experience the decision to move as a voluntarily or forced decision. This research will have its main attention towards forced migrants as this is what refugees and asylum seekers are often referred as. The 1951 UN Convention Relating to the Status of a Refugees, defines a refugee as a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country (Article 1 A(2), 1951, 14) This is the UN legal and operational definition of refugees that shapes the management of this group of immigrants. It is a widely accepted definition referred to by central organizations in the field of migration management such as the IOM and the United Nation High Commissioner for Refugees (UNHCR). A person who has moved across international borders in order to seek protection has the status of an asylum seeker whilst their application is being processed (Castles, Miller 2009, 189). These are the definitions that both the EU and the AU use as a basis for their policies. It is therefore the most relevant definition to refer to in this research as well. 9

10 Officially acknowledged refugees by UN`s definition are protected and given a legal status by UNHCR. The UNHCR works to ensure the right and possibility for every refugee to seek asylum and protection in another country (UNHCR, accessed the 6 th of July 2011). The legal rights imply that all refugees should have their application for asylum processed as well as be protected against the non-refoulement principle. This principle includes protection from forced removal and being returned to a country where they may be exposed to persecution and threat of state of freedom. This is due to the UN Convention Relating to the Status of Refugees (Article 33 (1) 1951, 30). The non-refoulement principle also applies in cases where the application for asylum has been denied (Castles, Miller 2009, 189). This convention defines who is a refugee, determine the rights of individuals who are granted asylum and the responsibilities of nations that receive asylum seekers (UNHCR, 1951, 3). Under protection by the UNHCR, refugees remaining under difficult and unsatisfying conditions might be relocated from refugee camps all over the world. This is accomplished through agreements between UNHCR and receiving countries. Although lately, the UNHCR has experienced increased resistance with regards to these agreements, also from the European countries (Castles, Miller 2003, 110). Still, it remains as the only exception from the EU immigration policies to assign refugees a legal possibility to seek asylum within Europe EU`s immigration policy The 1980`s was a decade characterized by an increased number of refugees and asylum seekers worldwide. By the end of the 1980`s Europe had received ten times as many asylum seekers compared to the previous decade, most of them entering Western Europe (Bø, 2002, 61). This led to a demand for more restrictive immigration controls where changes in legislation and policies were introduced in order to limit the arrivals of asylum seekers. Western Europe thereby decided to establish a European cooperation regarding asylum and immigration policies (Bø 2002, 63). Towards a common European policy on asylum and immigration The Amsterdam Treaty from 1997 was the first legal attempt to create a united policy in Europe concerning asylum and immigration issues. Protection and rights of refugees are important elements in this treaty (T. O. UNHCR 2006, 34). A shared asylum policy and human rights were also on the agenda when the EU member states gathered in Tampere, 10

11 Finland, The main purpose was to reduce the population movement into Europe, whilst respecting the human right to seek protection as an asylum seeker as stated in article 14 of the 1948 Universal Declaration of Human Rights (Jaulin 2010, 4). Furthermore, a common asylum policy and law on a political level was introduced by the Hague program in 2004 (T. O. UNHCR 2006, 35). Also the Schengen agreement became an integrated part of the EU with the Amsterdam Treaty. The Schengen Agreement Originally when the Schengen agreement was signed the 14 th of June, 1985, it was between the Netherlands, Belgium, Luxemburg, Germany and France, and aimed to remove the internal borders within the five countries in order to enable free movement of citizens (T. E. EU 2009). Freedom of movement is still an essential part of the agreement. However, the present provisions also cover movement across external borders, asylum issues, police cooperation and informational exchange within the member states (Bø 2002, 66). In order to comply with all these provisions, the Schengen Treaty has implemented several separate additional conventions (Bø 2002, 67). Currently, 25 European states are part of the Schengen agreement (T. E. EU 2011). This means that policies resulting from this agreement are applicable in most parts of Europe. Whilst the Schengen agreement has led to eliminated internal borders within the Schengen area 1, the external borders have in contrast become highly controlled and restricted (T. E. EU 2009). The formation of the Schengen area and implementation of related policies and laws has an impact on the possibility of African refugees to enter Europe. This is the simple consequence of the Schengen area including most of the Southern European states (see Figure 1). 1 The Schengen area is the area within the external borders of the member states of the Schengen Agreement (T. E. EU, The Schengen area and cooperation 2009). 11

12 Figure 1: The Schengen area (T. E. EU 2011) Control of the external borders At the external borders, the EU has put in place systems and agencies to control and stop immigrants without permission to cross the borders into the Schengen territories. One of these systems is the Schengen Information System (SIS). It facilitates data exchange on personal information from immigrants trying to cross the European borders with the purpose to alert law enforcement of suspicious persons or objects (T. E. EU 2010, a). Another measure is the European border surveillance system (EUROSUR) which aims to increase the reaction capability of information and control of cross-border movement mainly on the southern and eastern maritime borders, thus also including the Mediterranean Sea (T. E. EU 2008). The EU has also established an agency, Frontex, which constantly works towards an improved and integrated management of the external borders of the Schengen area (T. E. EU 2010, b). The primary function of these systems and agencies is to create a strong and improved legal and judicial cooperation between the member states. The purpose is to regulate the movement across the external borders of the Schengen area (EU 2009) 12

13 Visa requirements Regarding migrants who originate from non-eu countries, five conditions have to be met in order to get permission to cross the external borders of the Schengen area. This is according to Article 5 in the Schengen Treaty. Before entering beyond the borders, migrants have to submit authorized border crossing documents and documentation that can clarify the purpose of the visit. Those originating from visa required nationalities also have to hold a valid visa. If the migrant is registered in the SIS as a person not permitted to enter or considered a threat to any state within the Schengen area, the migrant will not be granted a visa (EU, Article 5 (ae) 1985). Asylum does not fulfil the requirements to be granted visa to enter the Schengen area. The right to apply for asylum is restricted to those who have already crossed the borders (Bø 2002, 358). However, as the only way to get within the borders is to be granted a visa, the regulations make it legally impossible to enter Europe as an asylum seeker. Bø describes this situation as a Catch 22 (2002, 358). African refugees possibility to seek asylum in Europe The 1951 UN Convention Relating to the Status of Refugees does accept illegal crossing of borders as long as it is with the purpose of protection from prosecution (UNHCR. Article 31, 1951). This is based on the fact that documentation is not accessible for all refugees who need to seek asylum. The only condition is that they have to register their arrival at the border or as soon as possible after entering the border. Very little attention is nevertheless given towards the latter. Instead the EU makes an effort to maintain the focus on the necessity of preventing illegal immigration (Nordby and Vevstad 2011, 26). Those asylum applicants who are granted asylum gain the same rights as other citizens within the Schengen area and can therefore move freely within the internal borders. If an applicant is rejected asylum on the other hand, they will be returned to the country of departure/origin. An exception is nevertheless made for those who cannot be returned due to persecution or threat of state of freedom. States are obliged to protect these asylum seekers until the situation changes and they can be returned. This is due to the non-refoulement principle. 13

14 Refugees that have applied for asylum within the Schengen area at any earlier stage, but their application has been rejected can never apply for asylum within the Schengen area again. This includes both those who have been rejected at the border and those who have had their application denied after it has been processed within one of the Schengen countries (Bø 2002, 67). These regulations are due to the Dublin Convention which concerns the application procedure for asylum seekers aiming to enter the Schengen area. It states that an asylum application can only be processed once and only in the country where the asylum seeker first arrives. The convention was made in order to reach a realization of the Schengen provisions and came into force in EU in 1997 (Bø 2002, 68). The EU s migration policies are crucial in determining the possibilities for African refugees to seek asylum in Europe. When these policies do not act in line with international fundamental rights and agreements it can have a negative impact on those individuals affected. Because of the EU s migration policies, refugees are deprived in their ability to seek protection in Europe. Seen in relation to the Universal Declaration of Human Rights, the human rights of African refugees aiming to seek asylum in Europe seems therefore not to be sufficiently safeguarded with the current EU asylum policy. Despite this, the policies preventing illegal immigrants including refugees aiming to seek asylum seem to be maintained and even further developed. This indicates that the EU undermines universal agreements in favour of considerations of own interests. Both the EU and the AU influence the migration flow between the two continents. How the human rights of African refugees are safeguarded is also a matter of concern for the AU. It is therefore important to investigate how the AU relates to the situation of African refugees seeking asylum in Europe. The thesis will explore to what extent the AU maintain a position, interest and possibility to counteract EU policies and provisions. How the AU can safeguard the human rights of African refugees aiming to seek asylum in Europe is a question of not only scientific relevance but also humanitarian.relevance. The consequences of how power dynamics on the international political stage affects individuals is a subject underemphasized in international discussions and therefore needs to be highlighted. 1.3 The structure of the paper This research consists of six chapters, each representing an important part in the process of answering the research question. The first chapter gives an introduction to the content of the research. The research focus and question is also presented here supported by a separate 14

15 section elaborating its background and relevance. The second chapter presents the theoretical framework in which the thesis is based on. It gives an introduction to international relation theory as well as the two schools of thought that will be emphasized in the thesis. The methodology chapter will thereafter describe what data sources I have used, as well as preconditions for writing the thesis such as ethical considerations and limitations and assumptions. The fourth chapter will analyze the initiatives launched by the EU and AU to safeguard the human rights of refugees. This includes both how the EU and AU take initiatives separately as well as one section analyzing the interrelations and negotiations between EU and AU on the issue of migration. The following chapter discusses these findings. The chapter is introduced with a discussion on the different aspects of the power dynamic between EU and AU and how this affects the protection of human rights of African refugees seeking asylum in Europe. The thesis finally presents a concluding chapter that summarizes the research, present some concluding notes as well as suggests suggestions for further research within this topic. The structure of the paper aims to provide a logical review of the topic of the thesis in such manner that it will also answer the research question. 15

16 2.0 THEORETICAL FRAMEWORK In order to address the research question, it is necessary to comprehend the role of the EU and the AU in global relations. This requires both an understanding of how the two international organizations work as well as how they affect one another in international politics. The theoretical framework for this paper will therefore be leaning upon different approaches within international relations theory. 2.1 International relations theory International relations theory provides a conceptual framework in which interactions and relationships between international actors can be analyzed (Walt 1998, 29). International relations have emerged as an academic field in the last decades and gradually built up a vast scope of theories, each providing explanations and interpretations of international relations. Dominant schools of thoughts within international relations theory is realism, liberalism and constructivism (Walt 1998). In analyzing the relations between the EU and the AU, this paper will mainly focus on two theoretical approaches; realism and social constructivism. Power is a central concept in international relations theory, both within the realist and constructionist approach. In order to discuss the AU`s current position in the international community, it is useful to gain an understanding of how AU works as an autonomous organization as well as how power is expressed within international relations. Power is therefore an important element in this discussion Realism Realism, also referred to as political realism or power politics, has traditionally been the prevalent theory within international relations. It derives from traditions such as Thucydides, Machiavelli and Hobbes. Hans Morgenthau is one of the current leading realists within international relations theory (Walt 1998, 31). One of his main contributions to the realism school of thought was Politics Among Nations, where he presented "Six Principles of Political Realism. Among other arguments he here claims that political realism differs from other schools of thought in the emphasis and value given to maintaining autonomy (Morgenthau 1978, 9). Realism considers states as the main source of power in the international system. Security, sovereignty and survival are considered the three ultimate goals for the states in which they 16

17 utilize material resources, power and rational choice to pursue their interests (Morgenthau 1978, 5) International politics is an arena designated for power struggles between states that independently have to protect their own interests. This is based on an assumption that there is no overarching power that can interfere with the international relations between the states. International organizations are considered as tools for states to exercise their power rather than independent actors. Universal principles can thus not constrain states, but instead need to be integrated according to what will be suitable for each state independently. Adoption of universal morally ambitions are considered a risk because of the unknown outcome this could have with regards to the relations between the nations (Morgenthau 1978, 9) Social constructivism Another group of theories within international relations can be accommodated by the label of social constructivism, a school of thought with roots back to the writings of Weber (Barnett and Finnemore 1999, 699). The fundamental principle within this theory is how reality is a concept formed by social interpretations and beliefs. Reality does not exist in itself, but is constructed through social perception. A precondition in this regard is however that the ideas of reality have to maintain a wide acceptance in order to be significant. With regards to international relations, scholars working within the perspective of social constructivism believe that states are not passive actors to social structure, but rather the designers of it. Social structure is thus formed by ideas in which identity and interests emerge. Power is developed through interactions between the actors in a social system. 2.2 Power in international relations According to realism, international organizations have no independent power, but are instead fully dependent on support from powerful states. Thus international organizations cannot act as autonomous actors in international relations. Power does not emerge from international organizations, but from powerful states acting through international organizations (Barkin 2006). Social constructivism can opposite be understood to see international organizations as autonomous actors with power independent to the states Barnett and Finnemore, 1999, 599). Arguable social constructivism can be understood to follow the universalist tradition (Barkin 2006, 9) Based on Weber s approach on bureaucracy as systems of power, Barnett and Finnemore trace authority in international organizations as stemming from two different 17

18 sources of power (ibid, 707). These sources of power are rational-legal authority and control information respectively. Rational legal authority is an outcome of the assumption that bureaucracies act rationally and in accordance to widely acceptable rules and norms. This creates a legitimacy that can be powerful for international organizations. Control of information on the other hand is the ability international organizations have to what information that is emphasized in global politics. Barnett and Finnemore argue that since all bureaucracies consist of these two elements, autonomy is a natural consequence of a bureaucratic structure and can forward and promote further processes in the external environment (ibid, 707). Barnett and Duvall have developed a framework for how power in international relations can be defined and analyzed. One way in which power can be analyzed in international relations is by looking at how power is exercised, either through direct interactions between actors on an international level or through the organizations constitutive structure. Another way in which power can be analyzed is to look at whether the power is expressed directly or indirectly between actors in international relations (Barnett and Duvall, 2005, 45). Duvall and Barnett further present four types of power that can found in international relations (ibid, 48). Viewed in the context of how they can be analyzed these types of power is presented in the model below (Figure 2). Power in general is often associated almost only with Compulsory power. It exists when one actor has dominance over the other actor during an interaction for instance by use of threats. As demonstrated in the model is compulsory power expressed in a direct manner through interactions between specific actors. Institutional power is also implemented in interactions between specific actors, but not directly. Institutional power exists when one actor indirectly manipulate other actors in order to gain benefits. Both Structural power and productive power are both expressed through social relations of constitutions, meaning rules and structure that defines organizations. The difference is that structural power is expressed in a more direct manner that productive power. While the former represents the ability to define concepts in which social capacities and interests are established, the latter is the power to adjust meaning and content to terms and definitions (ibid, 48). 18

19 Figure 2: Taxonomy of power Relational specificity Direct Indirect Power works through Interactions of specific actors Compulsory Institutional Social relations of constitution Structural Productive (Barnett and Duvall, 2005, 48) This model is not based on one specific school of thought, but is a general model in which several traditions can draw associations, among these also realism and social constructivism. It is therefore a good point of departure for further elaboration (Barnett and Duvall, 2005, 44). This chapter have presented theoretical approaches for how international relations can be understood. Further interpretations of these theories will be applied in context of how international relations between the EU and AU affect the protection of Human rights for African refugees seeking asylum in Europe. In this sense the theoretical framework only function as a foundation for further elaboration in the investigation of the research question. The following chapter will demonstrate what methods that have been utilized in this regard. 19

20 2.0 METHODOLOGY Basing the discussion on realism and social constructivism creates a potential for a wide discussion in which the relations between the EU and the AU can be examined from several methodological perspectives. While realism seems to mainly focus on objective facts in the social world, social constructivism seems to pay more attention to ideas, discourses and multiple understandings and interpretations. The two traditions have also different approaches to international relations theory. At the same time are both the directions central within the field of international relations. Through explanatory research this thesis has utilized qualitative method in the process of answering the research question. The data has been collected through a literature review. 3.1 Data sources Most of the conducted analysis has been based on primary data in terms of policy documents such as union-wide legislation, declarations and conventions applicable to the preservation of human rights for refugees and asylum seekers. These documents have been identified through the review of the official web pages of EU and AU, as well as other relevant organisations such as the UN and UNHCR. This process of collecting these policy documents has required a substantial and critical process of prioritizing what to include and what to exclude. In this process I have also reviewed secondary sources, i.e. literature on the subject, in order to consider how observers and experts in the field refer to the policy documents developed by the two organizations with regards to the situation of refugees possibility to seek asylum in Europe and the importance of safeguarding the human rights of this group of migrants 2. This is also a way in which the validity of the primary data can be assessed. The validity of the research determines if the study`s quality and presentation of correct information (Chambliss and Schutt 2007, 340). Even though secondary data does not exclusively concern the issues highlighted in this research, it gives the advantage of comparing theories and analytical observations from different scholars in the field. The disadvantage of mainly basing the research on primary data is that it only considers one perspective, how the sources is promoted. Reviewing policies developed by the EU on issues of migration might give a different impression than reviewing secondary sources that discuss 2 Examples on documents I have chosen to exclude from the analysis is documents such as The New Partnership for Africa's Development (NEPAD) AND. Even though they are relevant for issues on migration, they do not have a specific relevance for the topic in this thesis. 20

21 the impact these policies might have for those affected. The secondary sources have in this sense been useful to find analytical observation discussing other aspects as well such as the motives and strategies of the different actors. In searching for secondary sources I have taken advantage of different sources. These include the College University`s library and internet databases (bibsys), article and reports published on the EU and AU`s web pages and other searching engines such as Google scholar. To identify relevant literature in these sources I used relevant key words such as international relations, migration management, illegal immigration, human rights, refugees, asylum seekers, the African Union and the European Union. I also used more specific sentences such as protection of refugees` human rights, power in international relations and AU`s role in global politics. 3.2 Ethical considerations Ethical challenges are always present when presenting research. I have therefore constantly tried to take them into consideration when working with the literature in mention. Chambliss and Schutt (2010, 4) points out four mistakes when explaining the outcomes of research; Overgeneralization, selective or inaccurate observation, illogical reasoning and resistance to change. When analyzing social processes in the world in which I am apart, I become subject to direct and indirect impressions on a daily basis. The flow of news stories mediated through Television, newspaper and the Internet raise different aspects of the challenges associated with refugees entering the European borders in order to seek asylum. To deny that these stories affect my opinions would be dishonest. I have therefore tried to be conscious in staying professional when working with the thesis and analyzed the policies with an open mind. Through the research I have tried to clearly distinguish between where I have gathered information from literature and where the discussion is based on own interpretations. 3.3 Study limitations and assumptions Broad and comprehensive literature is available concerning topics like human rights and refugees need for protection. Even though the research questions set some constrain in what will be directly relevant for this thesis, additional limitations and assumptions have been made as well as to what the assignment will cover. Such constraints make it more feasible to provide a sufficient and clear answer to the research question as the structural framework in terms of time and length of the thesis also sets limitations for the paper. 21

22 The unit of analysis n this thesis is the AU and the EU, both international organizations each representing their continent. The two organisations implement guidelines, policies and agreements on behalf of their member states. Nevertheless this only constitute a common basis for united policies. Each country can also develop independent regulations with regards to asylum and immigration as long as not in conflict with the international agreements. This assignment will mainly compare policies made by the EU and the AU as international organizations and not by their member countries. Yet, in practice this distinction might not be too obvious. There are situations in which the international organization has a substantial impact on decisions made by their member states. It can be argued that this is true for the Euro-Mediterranean agreement. For this reason as well as the direct relevance to the research question, I have decided to also include these agreements in the paper. International relations theory is used as a theoretical framework for the thesis. This is a broad theory with contributions from several schools of thought. Based on realist and social constructivist perspectives the thesis will discuss how international relations between the AU and the EU affect the human rights of African refugees aiming to seek asylum in Europe by studying the power dynamics between the two organizations. Even though other concepts than power could have been included to widen the discussion, power is a comprehensive concept with several different aspects which is why I have considered this concept to be sufficient for the purpose of this thesis. Especially as limitations is necessary in order to limit the scope of the assignment. With regards to refugees will the thesis mainly focus on the right in itself to seek asylum as well as how African refugees possibility to seek asylum within the Schengen area is regulated through international policies and agreements. Hence, it will not take into consideration reasons as to why refugees seek asylum, or what rights they are entitled to after they have arrived within the Schengen area. The paper will furthermore have a technical approach focusing on the legal and practical issues, as opposed to the many physiological and social aspects which also exist in this regard. 22

23 4.0 ANALYSIS OF THE INITIATIVES LAUNCHED BY THE EU AND AU TO SAFEGUARD THE HUMAN RIGHTS OF REFUGEES The AU and the EU are each representing their continent on a political level. The AU consists of 53 member states; these include all the African countries except Morocco. The EU on the other hand contains only half as many with its 27 member states. EU s member states are nevertheless financially stronger than AU s member states. The imbalance between the two organizations seems to shape the politics which defines the possibilities for African refugees to seek asylum in Europe. This will be discussed further on later in the research. This chapter will disclose how the AU relates to issues regarding African refugees and asylum seekers. More specifically it will explore whether the AU has taken any concrete initiatives to protect and safeguard the human rights of African refugees. The chapter will also investigate how these issues are brought up in agreements between the AU and the EU. 4.1 The European Union (EU) The EU was established in the aftermath of the Second World War with the purpose to create solidarity between the European states. The first step in this direction was the creation of the Council of Europe in Furthermore, Italy, France, Germany, Belgium, the Netherlands and Luxembourg initiated cooperation with regards to trading coal and steel. This agreement made it harder for these countries to produce war equipment that could lead to conflict. In addition to the peace making effect, this cooperation also led to the establishment of the European Economic Community (EEC) enabling a common market between the signatories (the Rome Treaty). Several Treaties have later been developed and created the European Union (EU, accessed on the 4 th of January 2012). The European Union and the Council of Europe have different functions, but serve the same purpose. While the Council of Europe works directly with EU s 27 member states and negotiates common priorities, the EU develops and integrates international policies and provisions representing the organizations member states (T. E. EU 2011, b). This demands an extensive cooperation between the two organs. In order to simplify will this thesis therefore refer to decisions made by both organs as within the EU. The European Convention on Human Rights In Rome on the 4 th of November 1950, the Council of Europe developed the European Convention on Human Rights. Later this Convention has been supplied with five protocols. 23

24 Protecting Human Rights of Refugees and asylum seekers is not specifically mentioned in the Convention. Nevertheless, the beginning of the Convention emphasizes that the UN Universal Declaration of human Rights need to be taken to into consideration. In the fourth Protocol made in Strasbourg on the 16 th of September 1963 article 1 state that no one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation. Further in the next paragraph however, article 2, point 3 states that The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposes in accordance with law and justified by the public interest in a democratic society. Drawing connections to the situation of refugees seeking asylum, it can be argued that the first paragraph contradicts EU s migration policies while the latter one justify it. This will be discussed further on later in the thesis. 4.2 The African Union (AU) The Organization for African Unity (OAU) was the predecessor of the African Union (AU). Policies developed by the AU are therefore partly based on the foundation laid by the OAU. In this sense it is relevant to include the OAU in the presentation of how the AU relates to the situation of African refugees and whether or not their human rights are sufficiently protected The Organization for African Unity (OAU) The Organization for African Unity (OAU) was established in 1963 and at that time consisted of 36 member states. Its main objectives were to create a united Africa, fight for independence and freedom for all African states, and promote internal as well as external cooperation on issues of concern. OAU intended to be an African international forum where different countries could work together for common interests as well as for Africa s interests (AU accessed 6 th of June 2011) The Convention Governing the specific aspect of refugee problems in Africa One of the outcomes of the establishment of OAU was the Convention Governing the specific aspect of refugee problems in Africa (the 1969 OAU Refugee Convention) that was adopted by the OAU in 1969 and later came into force in The purpose of this Convention was to create a supplement of the 1951 United Nations Convention on the Status of Refugees adjusted to Africa`s context (article 8, paragraph 2). In addition to the definition already set out in the 1951 UN Refugee Convention, an extended definition was one of the initiatives in 24

25 this sense. In addition to using UN`s 1951 Refugee Conventions definition, the OUA Refugee Convention also adds; The term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. (Article 1, paragraph 2, 1969, 2) Yet the extended definition seems not to have made significant implications, mainly because the content and meaning of this paragraph is nearly the same as the definition shared with the 1951 UN Refugee Convention. The OUA Refugee Convention further determines obligations with regards to African nations` management of asylum seekers and refugees. These obligations include the responsibility to protect refugees that are in need of asylum, respect the non-refoulement principle, accept all refugees without discrimination, no punishment of returned refugees and cooperation between nations as well as the OAU in order to prevent overload in capacity to manage refugees and asylum seekers (1969). In line with the non-refoulement principle, OUA Refugee Convention protects asylum seekers from being returned to a territory where threat of freedom and chance of persecution might be a reality. Article 2, paragraph 3 states that No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2 (Article 2 (3), 1969, 3) 3. This article is directed towards member states. Being an advocate for Africa with obligations to protect African nations as well as the African population s best interest, it can seem obvious that OAU`s provisions mainly applies to what concerns the African continent. Nevertheless, when stating obligations to member states with regards to management of refugees, the 1969 Refugee Convention also set out standards for how African refugees should be treated. In this sense it is reasonable to assume that the OUA would prefer also 3 Article 1, paragraph 1 and 2 defines who is a refugee. 25

26 states beyond the African continent to threat African refugees in accordance with these standards even though it specifically mentions member states in the text. Such an interpretation gives the 1969 Refugee Convention a wider meaning in which the standards set out should be understood to apply for African refugees located outside Africa as well. The relevance of this view can be argued to be more pertinent during recent decades as an increased share of intercontinental migration has led to a considerable larger part of the African population residing outside the African continent. The African Charter on Human and Peoples' Rights Another outcome was the African Charter on Human and Peoples' Rights. This human right instrument was adopted by the OAU in 1981 and later came into force in The Charter is divided into two parts in which the first part sets out rights and duties with regards to Human Rights and the second part sets out measures to safeguard human rights. The African Charter on Human and Peoples' Rights was made in order to promote Human Rights on the African continent. Adopted by the OAU 33 years after the Universal Declaration of Human Rights was adopted by the UN, the African Charter contains many of the same elements as its example. This is true also with regards to the rights held by refugees and asylum seekers. Article 12, point 3 in the African Charter states that; Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. The Universal Declaration of Human Rights similarly states in article 14 that everyone has the right to seek and to enjoy in other countries asylum from persecution. Despite the similarities between these articles, an essential difference can be detected in their approach. While both the Universal Declaration and the African Charter determine that all asylum seekers have the right to seek protection in another country. The African Charter however, adds a condition that this right is only given if it is in accordance with laws of those countries and international conventions (Article 12, point 3, 1986, 4). Thus, according to the African Charter, it is the national laws and international agreements that determine whether a refugee has the right to seek asylum. This right does not exist in itself. The Second part of the Charter consists of concrete initiatives to protect and safeguard the human rights of the African population. It is introduced by article 30 stating that 26