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Protecting the Rights of Migrant Workers in the Euro-Mediterranean PartnershipKonstantinos D. MagliverasPublished online: 08 Sep 2010.

To cite this article: Konstantinos D. Magliveras (2004) Protecting the Rights of Migrant Workers in the Euro-MediterraneanPartnership, Mediterranean Politics, 9:3, 459-488, DOI: 10.1080/1362939042000259960

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Protecting the Rights of Migrant Workersin the Euro-Mediterranean Partnership

KONSTANTINOS D. MAGLIVERAS

Migration has always played a significant role in the relations between the EuropeanCommunity and the Third Mediterranean Countries (TMCs). This was acknowledgedin the Barcelona Declaration of November 1995, where the Euro-MediterraneanPartners agreed to strengthen their co-operation to reduce migratory pressure but also toguarantee the protection of the rights of legally resident migrant workers, which arerecognized under the legislation of the host countries. This study analyses the relevantprovisions in the Barcelona Declaration and its Programme of Action; examines theclauses on migration and on social policy to be found in the Euro-Mediterraneanassociation agreements, according to the degree of protection they offer; and considersthe secondary Community legislation, which has been adopted in the context of theCommon Immigration Policy, and its significance for protecting TMC migrantworkers. Moreover, it explores whether there exist international treaties offeringadditional protection for the rights of the TMC workers residing in the Communityterritory. Finally, the essay offers an overall evaluation of the current status of the rightsafforded to and enjoyed by migrant workers.

In Barcelona in November 1995, the so-called Euro-Mediterranean Partners,

that is, the member states of the European Community1 and the Third

Mediterranean Countries (TMC), resolved to start a new chapter in their

perplexed and often conflicting relations. That the texts deriving from

the so-called Barcelona process (a Declaration and a Work Programme)

realized the Community’s needs but did not necessarily answer to TMC

aspirations is more true than untrue. Notwithstanding the shortcomings in the

outcome, a Euro-Mediterranean Partnership came into being. It has taken

shape primarily through the conclusion of the so-called Euro-Mediterranean

association agreements.2

Thus far, there have been association agreements with the following TMC

(in order of date of signature), which replace the co-operation agreements

concluded in the 1970s [Guild 1993: 15]: Tunisia,3 Morocco,4 Israel,5

Palestine Liberation Organization for the benefit of the Palestinian Authority

Mediterranean Politics, Vol.9, No.3 (Autumn 2004), pp.459–488ISSN 1362-9395 print/ISSN 1743-9418 online

DOI: 10.1080/1362939042000259960 q 2004 Taylor & Francis Ltd

Konstantinos D. Magliveras is Assistant Professor in the Law of International Organizations,Department of Mediterranean Studies, University of the Aegean; and Attorney at Law. Theauthor would like to thank the participants in Workshop 4 (Migration and Human Rights) ofthe 5th Mediterranean Social and Political Research Meeting as well as the editors of thisspecial issue for their comments and suggestions.

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of the West Bank and the Gaza Strip,6 Jordan,7 Egypt,8 Algeria9 and

Lebanon.10 As far as Syria is concerned, an association agreement has not been

signed yet, even though the negotiations were concluded on 10 December

2003. Finally, Libya has not been participating in the Barcelona process as a

result of the various sanctions and the diplomatic isolation imposed by the

international community in the aftermath of the Lockerbie bombing.

However, the recent rapprochement between Libya and the western world

should eventually lead to its active involvement in the process [Euromed

Synopsis, 2004]. If we define the term ‘association’ as the joining of forces in

order to achieve a common aim, the title of these agreements is rather

misleading. For the Community and the TMC have different, if not opposing,

aims and this is particularly true in the area of migration.

The Limited Role of Migration Compared to Trade in the Barcelona

Process

In the Barcelona Declaration, the issues of migration and migrant workers11

come under the third basket of the Euro-Mediterranean relationship. This is

the Partnership in Social, Cultural and Human Affairs, which bears the subtitle

‘Developing Human Resources, Promoting Understanding Between Cultures

and Exchanges Between Civil Societies’. A careful reading of the relevant

passages in the Barcelona Declaration reveals that the third basket is more

concerned with the problems posed by illegal immigration and by the intense

migratory pressures from the South to the North, while it does not aim at

promoting and expanding the rights enjoyed by those nationals of the TMC,

who are in lawful employment in the member states. This one-sided approach

was to be expected. In the area of migration, the predominant movement is

from the TMC to the European Community. It is estimated that more than five

million employees or self-employed third-country nationals reside in the

Community, of which roughly three million are TMC nationals (excluding

Turkish nationals) [European Commission, 2001a).

In contradistinction, in the areas of trade and services the exact opposite

applies: the movement is from the Community to the TMC. The companies of

the former are always eager to move to new (preferably underdeveloped)

markets, establish their presence therein and, at the same time, enjoy

conditions of unhindered competition. The goal of the Barcelona Declaration

that a Euro-Mediterranean free trade area be established by the year 2010

(a goal which already at that time was over-optimistic and had to be

rearranged to a more realistic framework in the association agreements)12

would serve best the needs of Community companies to enter into new

markets. After all, the main content of the free trade area is the elimination of

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tariff and non-tariff barriers to manufactured products and the lifting

of restrictions in the trade in services including the right of establishment of

companies and of self-employed persons.

In the case of migration, however, it is submitted that the vested interests of

the majority of member states, if not all of them, are to restrict and, if possible, to

prevent the unhindered movement of workers from the South to the North.

A number of considerations lead to this argument. First, the high unemployment

rate in the Community, which in southern member states (Spain, Italy and

Greece) has been and still is endemic. Second, the fact that large population

groups from Arab Mediterranean countries have settled in a not insignificant

number of member states. Third, the largest part of the TMC population,

which could have taken advantage of migratory opportunities, would

be categorized as unskilled workers by European standards making them an

‘unwanted’ workforce in the member states. The second fact is by far the most

important. According to data from the period 1999–2001, the total number of

TMC nationals residing in France is nearly 1.75 million (of whom 685,000 are

Algerians and 725,000 Moroccans); 280,000 in Italy; 225,000 in Germany;

217,000 in Spain (of whom 200,000 are Moroccans); 140,000 in Belgium

(of whom 125,000 are Moroccans), and so forth [Fargues, 2003]. The existence

of these immigrant populations has led to multifaceted problems, as the

presence of Algerians in France has aptly demonstrated [Hargreaves, 2001: 21].

Arguably, the situation would have been different if the TMC had a well-trained

workforce, which could have covered the lack of skilled employees in the

Community due to mainly demographic problems. As has rightly been

observed, ‘Migration is not a panacea to solve the ageing problem in the EU nor

the unemployment problem in the Mediterranean Partners’.13

An aspect of these immigrant populations, which is too significant to go

unnoticed, is that of migrant remittances, which continue to be a major source

of national income for the countries concerned. To offer only one illustration,

Egypt receives annually some $3.7bn from its diaspora. As calculated by the

International Organization for Migration, for many North African states

migrant remittances exceeded inflows of official development assistance and

foreign direct investment. Thus, as a proportion of total inflows, remittances

amounted to 66 per cent in the case of Morocco, and 51 per cent in the case of

Egypt and Tunisia [International Organization for Migration, 2003: 2].

Although, prima facie, the free trade area and the issue of migration do not

appear to be directly related, one should take into consideration the fact that

the unequal state of the economies in the TMC and in the Community would

have deteriorated further by the time Community products and services are

allowed to move freely to the TMC and eventually replace those that are

locally produced. Even though this eventuality would lead to gains for

consumers in the TMC, it would also have adverse implications for the TMC

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industry. This, in turn, would have serious repercussions in their employment

sector, since diminished production is the foremost reason for redundancies

and closure of businesses [Hunt 2002; Zaafrane and Mahjoub, 2000: 9].

In the third basket, the Barcelona Declaration lays down 14 principles for

establishing the so-called Partnership in Social, Cultural and Human Affairs.

Even though it is not suggested that these principles were set out in order of

precedence, it should not go unnoticed that migration is referred to only in the

tenth and eleventh principles. In particular, the tenth principle acknowledges

the importance of the role that migration plays in the relationship between the

TMC and the Community; and records the agreement among Mediterranean

partners to strengthen co-operation in order to reduce migratory pressures,

inter alia, by undertaking vocational training programmes and plans of

assistance for job creation. Finally, it refers to their obligation to ensure the

protection of all the rights of those migrants legally residing in their territory,

which are recognized under existing national legislation.

The eleventh principle deals exclusively with illegal immigration,

a situation, which is recognized as having created many problems to

member states. Its tackling, especially the aspect of readmission of illegal

immigrants by the country of origin, necessitates the active involvement of the

TMC [Rapport, 2004]. Thus, the Mediterranean partners agreed to establish an

ever-closer collaboration and, to that effect, they also decided to adopt

bilateral agreements and other suitable arrangements so as to put into place an

adequate mechanism enabling the readmission of illegal immigrants by the

country of origin.14

If an argument could be made about both legal and illegal migration, it will

be that they are expressed solely in a bilateral context. In other words, there

was no mention of legal measures being taken in a uniform manner, whereby

the Community and its member states, on the one side, and the TMC, on the

other side, would adopt common agreements that would apply equally to all

Mediterranean partners. This situation should be attributed to the differing

regime that applies to each of the TMC and to the fact that the geographical

proximity of the southern member states to the TMC places them in a position

distinct from that of northern Europe.

It follows that there exists a different set of priorities among Community

members. Aspects such as readmission of illegal immigrants may not be such

a main concern for the countries of northern Europe as it is for southern

Europe. Finally, as a rule, the negotiation and conclusion of multilateral

agreements is a much lengthier and more demanding process compared to

bilateral accords. Therefore, in matters of urgency, it is more expedient to

proceed with the latter rather than the former. In its turn, this approach has at

least one negative element, namely that an agreement between separate

member states and the same TMC could include not only dissimilar but also

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contradictory provisions, which could potentially lead to exploitation by those

determined to shun the rules.

Credence to these considerations is given by the Work Programme, which

was adopted at Barcelona and annexed to the Declaration. As the Mediterranean

partners expressly agreed, the programme, which aims at implementing the

Declaration’s objectives and ensuring its principles, is complementary to

the bilateral co-operation between the member states and the TMC. The

programme lists the priority actions for further collaboration between

the partners and covers both illegal immigration and (legal) migration.

As far as illegal immigration is concerned, the Work Programme envisages

the holding of periodic meetings to discuss practical measures aiming at

improving co-operation among police and judicial, customs, administrative

and other competent authorities. Moreover, it was specifically resolved that

such meetings will be organized with due regard to the need ‘[f]or a

differentiated approach that takes into account the diversity of the situation in

each country’ (emphasis added). As will be ascertained, if these provisions are

compared to the afore-mentioned eleventh principle, the content of the latter is

far more concrete and specific. Indeed, the eleventh principle talks about

(presumably legally binding) agreements and arrangements, whereas the

programme’s ambit is restricted to practical measures based on ad hoc

arrangements. This is quite strange, because usually action plans go beyond

what has been agreed in principle between the participants.

The Work Programme’s provisions on migration follow the same pattern.

They envisage nothing more than the encouragement of holding meetings with

the prospect of making proposals concerning migration flows and pressures.

These meetings would take into consideration the experience acquired,

inter alia, in the improvement of the living conditions of migrants, who are

legally established in the Community. Again, if one compares these provisions

with the afore-mentioned tenth principle, there are sticking differences.

In particular, there is no mention of the obligation to protect migrants’ rights,

which exist under national legislation.

This is an important omission for the following reason. The Barcelona

Declaration, as its very title denotes, is not a binding instrument. Its content

reflects the accord reached at a political level. However, in order to go beyond

a mere political accord, it must acquire a legal perspective, in other words to

be transcribed into binding agreements. Otherwise, the application of the

commitments made in the Declaration depends solely on the goodwill of the

signatory parties. Obviously, this is an unsatisfactory state of affairs,

especially when the rights of migrants, who have left their country and sought

lawful employment in another country, are involved.

The mentioning of national legislation protecting migrants’ rights in the

tenth principle is not adequate considering that such protection could be

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downgraded or even abolished, unless there are international obligations and

duties preventing a state from doing so. These obligations have a mandatory

character when they are envisaged in bilateral or multilateral agreements,

which have been ratified in accordance with the parties’ constitutional

traditions.15 Hence, the sufficient safeguarding of the rights of migrants

requires the conclusion of relevant agreements. Although the Work

Programme has nothing to say in this regard, as is explained later, some of

the Euro-Mediterranean association agreements do stipulate a framework for

offering migrants, irrespective of whether they originate from a TMC or from

a member state, a specific degree of protection.

Finally, it is of some interest to compare the Work Programme’s provisions

on migration with those on the establishment of a free trade area, which, as

already argued, was of paramount importance for the European Community

and its member states in Barcelona. Thus, the programme sets out, among

others, the following precise targets, whose materialization arguably requires

much more than simply ‘practical measures’: harmonization of rules and

procedures in the customs field; harmonization of standards; elimination of

unwarranted technical barriers to trade in agriculture and adoption of

legislation on foodstuffs; the adoption and implementation of legislation and

regulatory measures in the area of the environment, and so forth.

The Clauses on Migration in the Euro-Mediterranean Association

Agreements

For the purposes of the present essay, the agreements can be divided into two

categories. The first encompasses those agreements having express provisions

in the area of migration, and the second those having either provisions of a

limited scope or no provisions at all. The agreements with Morocco, Algeria

and Tunisia fall into the former category, while the agreements with Jordan,

Egypt, Lebanon, Israel and the Palestinian Authority fall into the latter category.

The Agreements with Morocco, Algeria and Tunisia

The contents of the agreements in the first category are almost identical with

only some linguistic differences. In these instruments, migration comes under

Title VI, entitled ‘Social and Cultural Cooperation’ and is covered under the

following headings: ‘Chapter I – Workers’, ‘Chapter II – Dialogue in Social

Matters’ and ‘Chapter III – Cooperation in the Social Field’.16

As far as Chapter I is concerned, there are two basic provisions: Article 64(1)

and Article 65(1). The former imposes upon member states the obligation not to

discriminate against workers of Moroccan nationality, who are lawfully

employed in their territories, on the grounds of nationality as regards working

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conditions, remuneration and dismissal. In other words, in these three areas

member states must apply the same rules as those applicable to their own

nationals and, of course, the nationals coming from another member state.17

However, the fact that identical clauses have been included in the agreements

with Algeria and Tunisia means that member states are mandated to treat workers

from these TMC in an equal manner and not to discriminate among them.

Thus, member states are prevented from offering differing levels of protection

to these TMC workers on the basis, for example, of bilateral agreements.

In fact, after the entry into force of the Euro-Mediterranean agreements, member

states do not enjoy the right to conclude bilateral agreements with TMC

whose contents go against the commitments entered into by virtue of these

instruments. It should also be mentioned that the ambit of Article 64(1) covers

both those persons who were in lawful employment in a member state at the

time the relevant agreement entered into force and those who took up

employment after the commencement of its operation.18

Even though the prohibition of discrimination on the grounds of nationality

as regards working conditions, remuneration and dismissal laid down in Article

64(1) covers most of the aspects of the employment relationship, it does not

extend to such aspects as actual access to employment, benefits offered freely

by the employer, the ability to move freely within the territory of the

Community to seek employment, the right to remain in the territory of a

member state after having been employed in it, etc.19 The fact that Article 64(1)

does not extend to these areas should not be underestimated and, especially, as

far as the access to employment is concerned. For if nationals from Morocco do

not have a right to be treated equally at the stage of selection as the nationals of

the host state or those coming from another member state, this could potentially

lead to cases of discrimination, which would be very difficult to rectify.20

Article 65(1), the other basic provision, deals with social security.

It stipulates that member states must ensure that Moroccan workers and all

members of their families residing with them are treated in this area without

any discrimination on the grounds of nationality.21 The same provision goes on

to give a rather wide definition of the term ‘social security’. It includes

sickness and maternity benefits, invalidity, old age and survivors’ benefits,

industrial accident and occupational disease benefits and, finally, death,

unemployment and family benefits.

The harmonization of social security schemes is envisaged in Article 65(2)

and (4). Read in conjunction, they contain advantageous provisions for the

Moroccan workers in the calculation of pensions and benefits. Thus, according

to the former paragraph, all periods of insurance, employment or residence

completed by Moroccan workers irrespective of the host member state shall be

added together in order to calculate old age pensions, sickness and maternity

benefits as well as medical care for both the workers themselves and their

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family members resident in the Community.22 Equally, the latter paragraph

affords to workers the right to transfer to Morocco without any restraints any

old age, survivor or invalidity pensions, at the rates applied under the

legislation of the member state(s), where acquired.

Article 65(2) and (4) addresses in a most satisfactory manner one of the

major problems that migrant workers, irrespective of nationality, encounter,

namely whether they will be able to gain from successive social security

schemes. In other words, their entitlement to pension and benefits not on the

basis solely of their most recent employment but on account of all employment

periods irrespective of the country or countries where they were employed.

Naturally, the effective implementation of the association agreements’

provisions on social security requires a large measure of co-ordination and the

adoption of uniform administrative practices. Article 67 envisages a two-stage

approach. Thus, the Association Council23 is mandated to adopt the necessary

provisions to put into practice the principles set out in Article 65 at the latest

one year following the entry into force of the agreement (that is, until 1 March

2001, in the case of Morocco). The Council shall then adopt the rules of the

applicable administrative co-operation and the necessary management and

monitoring guarantees.

The framework on migration established by the agreements is not meant to

be static and inert. This becomes clear, on the one hand, from the provisions of

Chapter II, which provides in Article 69(1) that the two sides shall engage in a

regular dialogue in social matters of interest to them, and, on the other hand,

from the provisions of Chapter III, which refers to co-operation in the social

field through the carrying out of common projects and programmes.

The general stipulation of Article 69(1) is elaborated in its second and third

paragraphs and covers the following four broad areas: (a) living and working

conditions of migrant communities; (b) movement of workers; (c) illegal

migration, which includes the conditions governing the return of individuals,

who are in breach of the host country’s legislation dealing with their right to

stay and their right of establishment therein; and (d) equal treatment between

Moroccan and Community nationals and the removal of discrimination.

Pursuant to Article 70, this dialogue is to take place in accordance with the

procedures envisaged for the regular political dialogue established under

Title I of the agreement (Articles 3 to 5), which mentions the following four

levels in order of importance. The first is at ministerial level, which means in

the context of the Association Council. The second is at the level of senior

officials representing, on the one side, the TMC and, on the other side, the

Presidency of the European Council and the Commission, in other words in

the context of the Association Committee. The third level is the usual

diplomatic channels, that is briefings and consultations on the occasion of

international meetings and contacts among diplomatic representatives that

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take place in third countries. The fourth level is nondescript, in the sense that

it includes all other means, which would make a useful contribution to

consolidating the dialogue and increasing its effectiveness.

It is submitted that the third and fourth levels are inappropriate in the case

of the social dialogue. All the issues involved are of such an importance that

they require the highest possible conduit and this can be only offered during

the meetings of the Association Council and of the Committee. Indeed, these

two entities have not only the mandate but also the capability of pushing

forward the scope of the agreements.

As far as co-operation in the social field is concerned, Article 71 lays down

that priority shall be given to seven areas. Among them, the most important are

the following:

(1) To reduce migratory pressure by means of improving living conditions,

creating new job opportunities and developing training in those areas from

which immigrants come [Bougroum and Ibourk, 2003: 341]. Considering

that, as already mentioned, immigration in the TMC-Community context is

one-sided, from the former to the latter, it is obvious that the aim in this

priority area is to keep the TMC nationals in their countries by offering them

what they expect to find in the host countries of the Community, namely

a better standard of living and an improved employment environment;

(2) To resettle those, who have been repatriated on account of their illegal status

pursuant to the legislation of the state where they were residing unlawfully;

and

(3) To improve the social protection system and to enhance the health cover

system. The aim of building up these two areas undoubtedly contributes in

reducing migratory pressures by developing a more appealing work

environment in the TMC.

Unlike dialogue in social matters, the agreement fails to mention how the

co-operation projects and programmes are to be devised and implemented.

The only relevant reference is Article 72, which sets out that such schemes may

be carried out in co-ordination with member states and appropriate international

organizations. This rather laconic provision ought to be interpreted as meaning

that the programmes will be undertaken by those member states, which

have a direct interest in the reduction of the migratory waves from specific

TMC, for example France and Algeria, Spain and Morocco, and so forth.

The Provisions in the other Euro-Mediterranean Agreements

In the remaining five agreements and on the basis of the importance of the

relevant provisions, one could distinguish between the agreements with

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Jordan, Egypt and Lebanon, which contain a specific framework of

collaboration with the Community, and the agreement with Israel, which

features only a rather restrictive social dialogue. The agreement with the

Palestinian National Authority lacks any provisions on migration or social

policy. On account of the perplexed issue of Palestinian statehood, the scope of

the agreement could not have been anything but limited. As has been argued, its

conclusion ‘was mainly a sign of political goodwill on the part of the Europeans

in terms of the goal of Palestinian self-determination’ [Hauswaldt, 2003: 597].

Compared to the agreement with Morocco, what seems rather peculiar is

that the agreements with Jordan, Egypt and Lebanon do not contain any

provisions at all protecting the workers of either side, who are in lawful

employment in the respective territory. Equally, they do not have any

provisions in the field of social security. It is only stipulations on the

establishment of a social dialogue among the partners and on social

co-operation actions that have been inserted in these agreements.24

In particular, the provisions on the social dialogue resemble the

corresponding ones in the agreement with Morocco. Thus, it is foreseen that

the social dialogue shall focus on problems related to migrant communities’

living and working conditions; the movement of workers; illegal migration

and the repatriation of illegal immigrants. As far as social co-operation is

concerned, there is again a strong similarity to the relevant provisions of the

Morocco agreement. The following priority areas have been earmarked:

reduction of migratory pressure; promotion of the role of women; and

improvement of the social security and health care systems. However, where

the agreements with Jordan, Lebanon and Egypt differ is that only the former,

on the one hand, stipulates expressly that the social dialogue shall be

conducted at the same level and following the same procedures as those

provided for in Title I (Political Dialogue) and, on the other hand, envisages

the setting up of a working party by the Association Council to evaluate the

implementation of the relevant provisions.25 The Working Party for Social

Affairs was established in August 2003.26

The lack of such stipulations in the agreement with Egypt and Lebanon

would signify that the contracting parties did not aim at a well-developed

co-operation based on existing structures and on regular evaluation and

appraisal. However, there is provision in these instruments for more

substantive collaboration in the future. Thus, Article 62 of the agreement with

Egypt provides that:

The Parties reaffirm the importance they attach to fair treatment of

foreign workers legally residing and employed on the territory of the

other Party. The Member States and Egypt, at the request of any of them,

agree to initiate talks on reciprocal bilateral Agreements related to

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the working conditions and social security rights of Egyptian and

Member States workers legally resident and employed in their

respective territory.

Finally, a Joint Declaration Relating to Workers, which was annexed to the

final act of the agreement with Lebanon, leaves open the possibility for

reaching accord in areas of more substance. The declaration’s wording is very

similar to that of Article 62 of the Egypt agreement.

In the case of the agreement with Israel, the provision on social dialogue is

considerably restricted compared to those with Jordan, Egypt and Lebanon.

It covers questions such as unemployment, rehabilitation of disabled people,

equal treatment for men and women, vocational training, work safety and

hygiene, and so forth. This dialogue is to be implemented through experts’

meetings, seminars and workshops.27 As it becomes obvious, there is no

connection at all with migration from Israel to the Community and vice versa.

This is quite striking considering that Article 64 envisages the co-ordination of

the social security regimes of Israeli workers legally employed in the territory

of a member state and of their family members legally resident there as

well as of member states’ nationals employed in Israel. In other words, the

agreement, on the one hand, acknowledges the presence of migrant workers

employed in the territory of both parties but, on the other hand, fails to accord

them the right not to be discriminated against and to offer them protection

comparable to that enjoyed, respectively, by Israeli and member state nationals.

Notwithstanding these significant differences in the level of protection

afforded by the agreements of the first and second categories, it is submitted

that, in practice, they do not lead to differing situations. And this because, the

Community’s Common Immigration Policy, which will be examined now, has

put in place a uniform system for the protection of migrant workers, for which

the nationality of the third-country worker plays no role in the level of

protection. Therefore, it will be irrelevant whether workers will immigrate to

work in the Community from, say, Lebanon or Morocco.

The Euro-Mediterranean Agreements in the Context of the Community’s

Common Immigration Policy

An Overview of the Common Immigration Policy (CIP)

At various stages, the European Community had addressed the issue of third-

country nationals’ migration [Hoogenboom, 1991: 351] and had adopted

a number of measures to that effect [O’Keefe, 1995: 20]. The fact that no

uniform policy on immigration was in force led to divergences among member

states as to how they treated third-country nationals and especially migrant

workers [Heilbronner and Polakiewicz, 1992: 49]. It was only in the Treaty of

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Amsterdam, that immigration policy became the full responsibility of the

European Union.28 The modalities for introducing the necessary secondary

legislation to put in place an immigration policy common to all 15 member

states were agreed at the European Council Summit at Tampere (Finland) in

October 1999.29 There are three axes to this policy. The first axis is to establish

a partnership with the countries of migration origin by tackling their political,

human rights and development issues. In this regard, the European Council

called upon the member states to contribute to combating poverty, improving

living conditions and job opportunities, preventing conflicts and consolidating

democratic ideals in these countries.

The second axis is to ensure fair treatment of third-country nationals, who

reside legally in the territory of the member states. In particular, the European

Council envisaged, on the one hand, a more vigorous integration policy aimed

at granting such persons rights and obligations30 comparable to those of

member states’ nationals and, on the other hand, to enhance the principle of

non-discrimination in the economic, social and cultural life. Moreover, the

European Council acknowledged the need for approximation of the member

states’ internal legislation relating to conditions for admission and residence of

third-country nationals and requested that the Council of Ministers adopt

‘rapid decisions’ to this end. But the most important pronouncement was that

the legal status of third-country nationals should be approximated to that of

member states’ nationals. Thus, a person, who has resided legally in a member

state for a certain period of time and holds a long-term residence permit,

should be afforded, in that state, a set of uniform rights. These should be as

close as possible to those enjoyed by Community migrants coming from

another member state: the right to reside in the territory of that state, the right

to receive education and vocational training, the right to work as employees or

as self-employed persons and the right not to be discriminated against vis-a-vis

the citizens of the state of residence.

The third axis is the efficient management of migration flows in close

co-operation with the countries of origin. Naturally, management in this

context means the promotion of legal migration and the aversion of illegal

immigration,31 which is closely associated with combating trafficking in

human beings and the economic exploitation of migrants. The Council of

Ministers was invited to adopt the necessary legislation by the end of 2000.

The European Commission put forward its views on the way to

implement the immigration policy in its Communication of November 2000,32

while the need for achieving these objectives were reaffirmed by

the European Council summit, which took place in Laeken (Belgium) in

December 2001.33 Notwithstanding the rather strict deadlines for introducing

and adopting the required legislation agreed at Tampere, things did not move

as promptly as anticipated.34

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The Current Status of CIP Instruments

So far, the instruments relevant to the present essay fall into the following

three areas.

Entry and Residence: Before the advent of the CIP, the Community attempts

to regulate the issue of entry and residence of migrant workers from third

countries centred on a Council of Ministers resolution35 and a draft

Convention.36 The former instrument, as its name denotes, did not promote

migration flows to the Community. While the resolution acknowledged the

contribution of migrant workers to the economic development of the host

member states, it resolved that the high level of unemployment experienced in

the Community increased the need to ensure that job vacancies are filled as far

as possible by Community nationals. Since resolutions do not have a

legally binding effect and at the time there was no legal basis to adopt a

binding instrument, the European Commission opted for the elaboration of

a convention among the 15 member states. The idea, of course, was that the

convention’s entry into force would create legally binding obligations for

the member states.

Thus, the draft Convention followed the general pattern of the resolution

and stipulated that the admission of third-country nationals to the territory of a

member state for the purpose of paid employment would be granted only if the

post offered in that state could not be filled in the short term by someone

belonging to one of the following three groups: citizens of the European

Union; third-country nationals who are legally resident in the state concerned;

or third-country nationals who are recognized as long-term residents in that

state. Although the draft Convention was approved by the European

Parliament subject to certain amendments,37 the Commission never produced a

revised proposal, apparently because the required legal basis had been given in

the meantime by the Treaty of Amsterdam.

Indeed, in July 2001, the Commission presented to the Council of

Ministers a draft directive for the conditions of entry and residence of migrant

workers and self-employed persons, which falls within the ambit of the afore-

mentioned second axis of the CIP.38 Its main theme is for third-country

nationals to follow a simple national application procedure leading to one

combined title which encompasses both the residence permit39 and the

employment permit within the same administrative act. The other purpose is to

grant to third-country workers and self-employed persons fulfilling certain

criteria a right to be admitted in a member state unless that state imposes

national ceilings on the admittance of aliens or specific limitations based on

the grounds of public policy, public security and public health.40

Pursuant to the draft directive, the so-called ‘residence permit-workers’ will

enjoy, among others, the following rights: to enter and reside in the territory of

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the member state issuing the permit, even after a temporary absence; to pass

through other member states; to exercise the activities authorized by the

permit; and to enjoy the same conditions as European Union (EU) citizens in a

number of socio-economic areas such as working conditions, pay, vocational

training, social security, medical care, freedom of association, and so forth.

Member states are placed under the obligation to issue decisions on

residence permits within 180 days from the application’s receipt. Should the

application be rejected, the decision must clearly state the reasons, which must

be based on objective and verifiable criteria, and must also inform the applicant

about means of redress. Thus, member states are mandated to put in place a

judicial review mechanism, whereby migrant workers will be afforded the

opportunity to challenge the validity of the decision rejecting the issuance of a

combined residence and employment permit. The difficulties associated with

judicial review are well known: lack of knowledge of the local language; lack

of financial means to pursue the appeal through all court instances, and so forth.

As the draft directive does not deal with these issues, the general administrative

procedure of the member states shall be applied. As yet the Council of

Ministers has not adopted the draft directive. The last major action was the

approval of the proposal by the European Parliament on 12 February 2003.

Long-Term Resident Status: As was the case with the entry and residence of

migrant workers, the issue of third-country nationals in long-term residence

in the Community was originally addressed by a non-binding resolution in

March 1996.41 According to the resolution, such nationals should be granted a

residence authorization for at least ten years or for an unlimited period of time.

Moreover, they should be afforded the same treatment, which is enjoyed by

the member state’s citizens as regards a number of labour and social policy

areas, for example, working conditions and membership in trade unions;

housing; social security and health care; compulsory schooling, and so forth.

Five years later, in March 2001, the European Commission put forward a

proposal42 aiming at harmonizing member states’ legislation on the granting of

long-term status to third-country nationals in lawful residence in the Community

and on the rights associated with such status [Groenendijk, Guild and Barzilay,

2000]. The Council of Ministers formally adopted it in November 2003.43 The

directive, which is also in implementation of the afore-mentioned second axis of

the CIP, aims at enabling third-country nationals, who meet certain criteria, to

enjoy a legal status in their host state comparable to that of its citizens. Moreover, it

allows them to move from one member state to another under certain conditions,

while maintaining the rights and benefits granted by the first member state and

without having to go through the procedures applicable to new immigrants.

For a third-country national to acquire this status, he or she must have been

legally resident in a member state for an uninterrupted period of five years, be in

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possession of a minimum level of financial resources and not constitute a threat

to public order. Such persons will enjoy equal treatment compared to the citizens

of the member state in certain aspects of the socio-economic life, including

access to employment and to self-employed activities, to education and

vocational training, to protection and assistance in the social field, and so forth.

Following the lodging of the application for being granted the long-term

residence status, the competent national authority must reach its decision

within 180 days. Should the application be rejected, the third-country national

must be notified accordingly in writing and the relevant reasons must be

clearly stated. Unsuccessful applicants must be able to resort to judicial

redress. The residence permit, which is standard for all member states, shall be

valid for ten years and renewable automatically unless withdrawn on the

grounds specifically laid down in the directive (absence from the member state

concerned for more than two years, fraudulent acquisition of the status, and so

forth). Finally, and this aspect should be stressed, the directive prevents

member states from issuing permanent residence permits on terms that are

more favourable than those set out in it. Therefore, member states are

prevented from acting in a discriminatory fashion and extend to third states of

their preference (including TMC) more favourable conditions. Member states

must comply with the directive by 23 January 2006 at the latest.

Family Reunification: Before the establishment of CIP, there had been no

Community instrument putting forward criteria common for all member states

ensuring nationals of third countries the right to family reunification.

However, family reunion did come under the so-called ‘Third Pillar’ of the EU

Treaty.44 In June 1994, the European Commission proposed the drafting of a

convention on family unification,45 as it considered that ‘a legally binding

instrument. . . could usefully constitute a firmer basis and could address

remaining differences in the practices of Member States in this regard’

[Cholewinski, 1994: 598]. As the Commission’s proposal never got off the

ground, it returned in December 1999 with a draft directive aiming at securing

the right of migrant workers to be joined by their immediate family once they

have established themselves in the territory of the Community.46

The directive, which was adopted in September 2003,47 applies in instances

where a third-country national holds a residence permit issued by a member

state for a period of validity of at least one year and has reasonable prospects

of obtaining the right of permanent residence and provided that the members

of his or her family are also third-country nationals. For the purposes of the

directive, the term ‘family’ is deemed to include only the spouse and any

minor children. However, member states are free to extend the ambit and

include first-degree ascendants in the direct line, adult unmarried children and

unmarried partners. It should be noted that the directive is quite flexible.

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Indeed, its application is without prejudice to more favourable provisions to be

found in bilateral and multilateral agreements between the Community and/or

its member states and third countries.

The application for reunification must be submitted and examined when the

family members reside outside the territory of the member state in which

the migrant worker is present. Notwithstanding that the directive does establish

the right to family reunification, member states may reject an application on the

grounds of public policy, public security or public health. Family members are

entitled to access to education and to vocational training as well as access to

employment and self-employed activities. As far as the latter entitlement is

concerned, member states are permitted to lay down the conditions under which

they shall exercise these activities, including an evaluation of the domestic

labour market before authorization is granted. The directive’s implementation

in the member states’ legal orders must be completed by 3 October 2005.

Moreover, it is of some interest to refer to the position taken by the EU

Charter of Fundamental Rights, which was approved by the 15 member states

in Nice (France) on 7 December 2000 in the form of a legally non-binding

political declaration.48 Article 45(2) of the Charter stipulates that ‘Freedom of

movement and residence may be granted, in accordance with the Treaty

establishing the European Community, to nationals of third countries legally

resident in the territory of a Member State’ (emphasis added). Although this

provision does not guarantee a right to freedom of movement and residence

(the element of discretion is still present), undoubtedly its inclusion in a

document, which primarily safeguards the rights and privileges of EU citizens,

is quite significant. Indeed, it could be seen as a manifestation of the

increasingly important role played by non-European Community (EC)

workers in member states’ societies.

Finally, reference should be made to a recent Commission document

concerning the relations of the European Union with third countries in the

area of migration.49 The only reference to the Mediterranean region is in

the context of the EU assistance to the countries of the region for the

management of their migration flows. The Commission’s comprehensive

approach to migration with the Mediterranean countries is based on the

interrelated issues of illegal migration, smuggling of migrants and trafficking

in human beings, in other words on the organized crime aspects of migration.

As already argued, the concern of the member states in the area of migration is

not how to consolidate the position of third-country nationals residing in their

territory. On the contrary, it centres almost primarily on how to curtail

migration and how to combat illegal immigration.

In this respect, it is characteristic that the European Council summit in

Seville in June 2002 urged that when in the future co-operation or association

agreements were concluded with third countries, a clause should be added

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providing for joint management of migration flows and for compulsory

readmission in the event of illegal immigration.50 Naturally, such clauses

give rise to concerns of their compatibility with international law norms

and the obligations assumed by the Community at the international

plane, which, however, go beyond the scope of the present essay [European

Commission, 2001b].

The Euro-Mediterranean Agreements in the Context of the CIP

The instruments adopted to implement the CIP will put in place a compre-

hensive set of rules addressing the main issues of migration from third

countries, namely admission, residence and movement across the Commu-

nity; conferring a legal status comparable to that of the local population

including wide-ranging protection and assistance in the social field; and unity

with the migrant worker’s immediate family. This legislative framework,

which member states are compelled to incorporate into their domestic legal

orders, will apply to all migrant workers irrespective of their country of

origin.

It follows that the legal position of workers originating from states that have

concluded Euro-Mediterranean agreements shall be based on and determined

by two separate sets of rules: on the one hand, the provisions of the relevant

agreement and, on the other hand, the provisions of the CIP instruments.

Therefore, they would no longer have to rely on the association agreements in

order to claim rights and benefits. Moreover, the level of protection afforded

by the agreements, which as explained may differ considerably, shall

be immaterial, since all TMC workers will enjoy exactly the same measure of

protection by virtue of the operation of the EC secondary legislation.

In effect, it would be argued that the content of the social policy provisions

in the agreements has been surpassed by developments in Community

law. For example, the point made earlier in the study that the prohibition of

discrimination on the grounds of nationality as regards working conditions,

remuneration and dismissal to be found in the agreements with Morocco,

Algeria and Tunisia covers most but not all the aspects of employment should

be considered settled through the application of the CIP instruments. This

situation is to the clear advantage of TMC workers, because they will be able

to rely either on the provisions of the applicable agreement or on the secondary

legislation, whichever is more favourable to them.

However, there is another aspect that should not go unnoticed.

The Euro-Mediterranean agreements were meant to offer the countries of

the region a more favourable regime in the area of migration and social policy

compared to other states. This comparative advantage is not any longer

present, considering that the CIP and the secondary legislation adopted under

it apply equally to all third-country nationals. It follows that workers coming

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from, say, Asian countries enjoy specific rights and are afforded considerable

protection without having to go through the process of concluding treaties akin

to association agreements.

The Protection Afforded to Migrant Workers by International

Conventions

There are various international treaties protecting the position and status of

migrant workers in the host countries and conferring upon them a number

of rights and privileges [Niessen 2001: 389]. Most of these are human rights

treaties of a general nature, that is instruments, which, on the one hand,

confer rights and freedoms to all persons residing lawfully in the territory of

contracting parties irrespective of whether they are citizens or aliens and, on the

other hand, impose obligations upon contracting states that must be observed

regardless of the residents’ nationality. It suffices to mention the International

Covenant on Civil and Political Rights (1966);51 the International Covenant

on Economic, Social and Cultural Rights (1966);52 the International Convention

on the Elimination of All Forms of Racial Discrimination (1965);53 the

Convention on the Elimination of All Forms of Discrimination Against Women

(1979);54 and the Convention on the Rights of the Child (1989).55

One could categorize the international instruments dealing specifically

with issues pertaining to migrant workers according to the international

organization, which concluded them. Thus, the first category comprises those

conventions adopted by the International Labour Organization (ILO) and the

second category those instruments adopted in the context of the United

Nations. The ILO has played a pivotal role in the protection of migratory

employment, primarily through the establishment of specific standards.

These groundbreaking instruments include the Convention concerning the

Establishment of an International Scheme for the Maintenance of Migrants’

Rights under Invalidity, Old Age and Widows’ and Orphans’ Insurance

(1935),56 which was replaced by the Convention concerning the Establish-

ment of an International System for the Maintenance of Rights in Social

Security (1982);57 the Convention Concerning Migration for Employment

(1949);58 the Convention concerning Discrimination in Respect of

Employment and Occupation (1958);59 the Convention concerning Equality

of Treatment of Nationals and Non-Nationals in Social Security (1962);60

the Convention concerning Migrations in Abusive Conditions and the

Promotion of Equality of Opportunity and Treatment of Migrant Workers

(1975),61 and so forth.

Provided that the individual TMC and the EU member states have ratified

these instruments, it is submitted that their stipulations should govern the legal

position of migrant workers even if the respective association agreements

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offer a lesser measure of protection or if they do not include any relevant

provisions at all. Consequently, the ILO Conventions could augment the

protection afforded by the association agreements but solely at a bilateral

level. In other words, the migrant workers of a TMC residing in a member

state and vice versa shall be offered additional protection only if both states

have ratified the relevant Convention.

The Instruments Adopted by the United Nations

A relevant instrument to which reference should be made is the Declaration on

the Human Rights of Individuals, Who are not Nationals of the Country in

which They Live, which was adopted by the General Assembly on December

1985 by virtue of Resolution 40/144 [UN Centre for Human Rights, 1994: 239;

Goodwin-Gill, 1989: 536]. Although the Declaration’s purpose is to suggest a

framework for the protection of individuals who are not nationals of the state in

which they are present, it does include provisions that are directly applicable to

migrant workers. More specifically, Article 8 stipulates that lawfully residing

aliens will enjoy the following three groups of rights: (a) safe and healthy

working conditions and equal remuneration for work of equal value performed

without any distinction; (b) participation in trade unions of the aliens’ choice

without any restrictions; and (c) protection of health, provision of medical care

and access to social security. What, however, Article 8 does not include is an

express reference to the aliens’ right to work or to form trade unions

themselves, rather than participating in existing ones. Moreover, it leaves

considerably leeway to host states to make the enjoyment of these rights

subject to very strict conditions. Despite these negative aspects, it is

difficult to agree with a commentator, who has described the Declaration

as constituting ‘a step backwards in respect of the protection of a number of

rights accorded to all persons. . . particularly economic and social rights’

[Cholenwinski, 1997: 75]. Even though the Declaration has lacked any

legally binding effect, in the absence of a relevant international treaty until

very recently, it has played a significant role in consolidating the often

precarious legal position of aliens. Therefore, its true value should be viewed in

this context.

The foremost multilateral instrument safeguarding migrant workers is the

UN International Convention on the Protection of the Rights of All Migrant

Workers and Members of their Families (ICMW), which was adopted by

the General Assembly without a vote in December 1990.62 It has been

described as the ‘culmination of [an] evolutionary process’, which has

developed for the protection of the rights of non-nationals [Helton, 1991: 849].

However, the large countries of the industrialized world, which act as the main

host states to migrant workers, have steadfastly opposed it. This has been

manifested not only by the prolonged period of time that lapsed before it

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entered into force63 but also by the fact that none of the industrialized countries

has even signed it.64 Considering that the migration flows are from the

underdeveloped and developing countries to the so-called First World and that

it is the rights of these workers, which need to be protected, the Convention

can play a limited role. And it will remain so, if the developed countries fail to

become contracting parties to it. Therefore, as the situation now stands, the

Convention does not have a direct role to play in upholding the rights of TMC

workers moving to the territory of the Community. Nevertheless, it could be

argued that it has a certain normative value, as it codifies not only the rights of

migrant workers but also the rights of their family members [Hune, 1994: 82].

And there exactly lies its importance, for it is the first (and so far) the only

international treaty with this subject matter.

That the Convention has failed to appeal even among developing countries

is rather puzzling especially taking into account that large population groups

immigrate as workers to developed and developing countries alike.

Moreover, the international community has been mobilized to secure as

many ratifications as possible [Hune and Niessen, 1994: 393]. The actions

undertaken include the establishment in March 1998 of the Global Campaign

for Ratification of the Convention on the Rights of Migrants, the persistent

calls of human rights non-governmental organizations (NGOs) to govern-

ments to become contracting parties to the Convention as well as various

Resolutions adopted by the General Assembly of the Organization of

American States65 and by the UN General Assembly.66

A central theme of the Convention is Article 7 which obligates contracting

parties not to discriminate against migrant workers and members of their

families on any grounds including sex, nationality, colour, language, age,

economic position, marital status, and so forth.67 It should be emphasized that

Article 7 is not an all-embracing anti-discrimination clause but covers only

those rights laid down in the ICMW. Therefore, the question that arises is

whether the existence of other regimes, which offer an unqualified right to

anti-discrimination, for example, the regime established in the European

Community under the free movement of persons, should be considered as

incompatible with the Convention in the sense that non-EC nationals

(for instance, migrant workers from the TMC) are treated less favourably on

the grounds of nationality. The drafters of the Convention had envisaged this

eventuality and, consequently, Article 81 stipulates that multilateral treaties

offering more favourable rights to specific categories of migrant workers and

their families shall not be affected by the operation of the ICMW. A negative

aspect of this provision is that it does not require contacting parties to provide

a minimum level of protection for all migrant workers before they are allowed

to offer more advantageous conditions to specific categories.

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The way the Convention has been drafted, the specific

rights protected in it have been grouped together according to whether

they apply ‘to all migrant workers and members of their families’, a term

which has been interpreted as including irregular migrants (Part III, Articles 8

to 35) or only to those ‘who are documented or in a regular situation’ (Part IV,

Articles 36 to 56). In other words, rights have not been grouped together

according to their subject matter (for example, employment rights,

social security rights, cultural rights, political rights, and so forth) and this

has led to a situation where the same subject matter is dealt with under both

Part III and under Part IV.

A good example is in the area of employment rights. Whereas Article 25(1)

warrants that migrant workers and nationals shall be equally treated in respect

of remuneration, Article 54 guarantees only to ‘regular’ migrant workers equal

protection as regards, inter alia, dismissal, unemployment benefits, and access

to the competent authorities in the event of violation of the employment

relationship by the employer. Another important observation is that, although

the majority of the ICMW provisions impose obligations upon the contracting

parties themselves, that is have a vertical effect, quite a few impose duties

directly upon employers, namely have a horizontal effect. Suffice to mention

Article 25(3) stipulating that employers are not relieved of their obligations

under national law on account of the migrant workers’ irregularity in their stay

or employment.

Regarding the clause on social security rights (Article 27 of the

Convention), it has rightly been observed that it ‘is confined to a statement of

general principle rather than being concerned with the details of this complex

subject’ [Cholewinski, 1997: 165]. As this provision does not even contain a

definition of the term ‘social security’, it is submitted that the implementation

is left to the individual contracting parties, which, however, must observe the

overreaching principles of equal treatment and non-discrimination.

The clause on the right to health (Article 28) is equally hazy, since it confers

the right to migrant workers and members of their families to receive medical

care that is urgently required for the preservation of their life. It could be

argued that by restricting the right to health to only instances where the

migrants’ life is at stake is of limited value, since they would anyway

have been covered under the right to life, which is expressly stipulated in

Article 9 of the ICMW. Indeed, it should be considered as a rule of customary

international law that all states are bound by the obligation to protect

effectively the life of aliens.68

In Articles 43(1)(e) and 45(1)(e) the Convention bestows, respectively, on

‘regular’ migrant workers and their families the right to have access, on an

equal footing with nationals, to a number of socio-economic aspects of life:

educational services; vocational training; housing and protection against

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exploitation in respect of rents, a provision that prima facie has a horizontal

effect; social and health services, etc. Article 43(2) demands of contracting

parties to enable migrant workers to ‘enjoy the rights mentioned in

paragraph 1’. To refer to granting access as actually conferring a right is

a gross overstatement to say the least. It is one thing to have a right to, say,

vocational training (as the citizens of the contracting parties do) and another

thing to have simply access to it.

The question of family reunification is dealt with in Article 44. Recognizing

that ‘the family is the natural and fundamental group unit of society’,

contracting parties are obligated to take appropriate measures to ensure the

protection and the facilitation of the unity of migrant workers’ family. The term

‘family’ is understood to include the ‘minor dependent unmarried children’69 as

well as the spouses and other persons, who have a relationship with the migrant

worker that, under the domestic law of the state of employment, would produce

results equivalent to marriage. Other family members are not included, but

contracting parties are asked to consider embracing them on humanitarian

grounds.70 A closer reading of Article 44 reveals that it does not confer to

migrant workers a right to family reunification but leaves the treatment of

this significant issue to the discretion of the host contracting parties. In that

respect the Convention is clearly out of line with international developments in

the protection of migrant workers’ social rights, developments that include the

afore-mentioned EC directive on the right to family reunification.

The overall review of the Convention’s application has been entrusted to a

specialized organization, the Committee on the Protection of the Rights of All

Migrant Workers and Members of their Families (Articles 72 and 75). Its

terms of reference are similar to the functions performed by entities

established under the other UN human rights treaties, for example, the Human

Rights Committee of the International Covenant on Civil and Political

Rights. Thus, it has the right to receive and evaluate regular reports by

contracting parties on the measures undertaken to implement the Convention

(Articles 73–74); and to hear inter-state complaints (Article 76) and

individual complaints (Article 77) claiming that a specific state party has not

fulfilled its obligations. The complaints mechanism is optional, in the sense

that state parties do not subscribe to it automatically but only on the basis of

declarations recognizing the competence of the Committee to receive and

adjudicate them.

Evaluation

One could look at the issue of migration in the Euro-Mediterranean

partnership in the context of the free trade area (FTA), a major component of

the Barcelona process. Although the subject matter of an FTA is the movement

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of goods and services, one cannot ignore the movement of persons. When a

system of preferential treatment of goods and services is set up, sooner or later

participating states are confronted with the issue of movement of persons,

especially. It gets more complicated when states are unequal in economic

power. This is exactly the situation in the Euro-Mediterranean Partnership,

a ‘Rich North–Poor South’ situation. The North aims at securing new (and as it

were underdeveloped) markets in the South, while the latter cannot take

advantage of the preferential treatment, because its goods and services are not

‘exportable’.

On the contrary, what the TMC have in abundance are human

resources. If these were well-educated and well-trained, if they were

employable in areas facing labour shortages in the member states, if the

latter were not confronted with rising levels of employment, if their

population did not resent, possibly without proper justification, the

employment of nationals from TMC and so forth, these human

resources could migrate to the North without major problems.

However, this was not the situation in 1995 and still is not the situation.

Consequently, it should not come as a surprise that the Barcelona Declaration

and the Work Programme annexed to it addressed primarily the anxieties

of the EU, namely the issue of illegal immigration and the readmission

of illegal immigrants in the country of origin, in other words migration

pressures. For this reason, it dealt to a much lesser extent with the management

of legal migration flows, with the improvement of the living conditions of

migrant workers legally established in the Community and with ensuring that

their rights, as laid down in the domestic legal systems, in Community law but

also in international law, are adequately and effectively protected. Perhaps

there was another reason for this, namely the negligible migration of EU

nationals to the TMC.

Therefore, the Barcelona Declaration did not have much to say in the issues

of migration and social policy. On the contrary, it focused, on the one hand, on

political dialogue and security and, on the other hand, on economic and financial

co-operation. However, one cannot afford to ignore the historical background,

namely that there has been migration on a large scale in the Mediterranean basin

since ancient times. It is only logical to expect that workers from the TMC would

wish to immigrate to the European Community hoping to find better

employment opportunities and an improved quality of life. Undoubtedly,

the European Community, as the main recipient of migrant workers from

the TMC, has unrivalled negotiating power in determining both the rules of

migration and the degree of protection to be afforded to migrant workers.

The Euro-Mediterranean association agreements follow the general pattern

of the Barcelona Declaration. They provided the vehicle for not so much

agreeing on the issues of migration and social policy but rather regulating

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them in the manner opted for by the Community. The agreements’ migration

issues are based on the principle of reciprocity: what applies to the EC workers

residing in a TMC also applies to the TMC workers established in a member

state. However, reciprocity is separate from discrimination, which in the

present context could take two forms. First, that TMC workers residing in

a member state are treated less favourably than its own nationals. Secondly,

that they are accorded a lower level of protection compared to other third-

country workers (irrespective of whether they are from another TMC or not).

Of these two forms of discrimination, only the former could have been

addressed in the agreements and this occurred in the cases of Morocco,

Tunisia and Algeria.71

The equality of treatment among migrant workers coming from a certain

TMC and nationals of the host member state does not cover all aspects of the

legal status of migrant workers. Issues such as entry and residence, family

unification, education and training, and so forth are neither regulated in the

agreements nor could they be covered by the equality principle. And this is

because EC nationals enjoy them by virtue of citizenship. Undoubtedly, this

leads to a gap, which could be covered in two separate ways. First, through the

afore-mentioned Common Immigration Policy, which subscribes to the second

form of (non-)discrimination, in other words it treats equally all third-country

workers with no distinction concerning the country of origin. As additional

instruments of secondary legislation will supplement the Common

Immigration Policy, the workers’ protection will augment accordingly.

Thus, a stage will be reached where the agreements’ contents on

migration and social policy will be irrelevant considering that the Community

legislation itself will confer rights and privileges upon migrant workers.

Here lies a (theoretical) risk. Even though the Community will continue to

upgrade the legal status of TMC workers in this indirect fashion, the status of

EC workers in the TMC will not ameliorate correspondingly. And this is

because the TMC will continue to apply the relevant provisions in the

agreements, which, as has been already explained, deal only partially with

the issues involved.

The second way to cover the gap is by means of the applicable

international treaties provided, of course, that the relevant member state and

TMC has ratified them. From the above-examined treaties the ones that could

offer protection to third-country workers are the ILO Conventions and the

human rights instruments. An added advantage of these treaties is that there

usually exists a complaints mechanism, whereby contracting states and/or

individuals have the ability to file communications claiming that another

contracting party has not observed the rights or has not fulfilled the obligations

set forth in them.72 Unfortunately, these mechanisms remain largely unknown

and they are rather infrequently employed considering the allegations of

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widespread infringement of migrant workers’ rights, especially in the socio-

economic sector. However, they should not be underestimated, as they offer

to nationals and non-nationals alike of contracting parties the opportunity

to lodge complaints with international bodies and expose to the world opinion

alleged instances of violations.

If the question were to be asked whether workers’ rights would have

been better protected in the absence of the Euro-Mediterranean Partnership,

the answer should be in the negative. The association agreements have

undoubtedly contributed in establishing non-discrimination and creating a

measure of protection for migrant workers, which is inferior to that enjoyed by

EC nationals exercising their right to free movement of persons. Even though it

was never suggested that the Partnership aimed at putting third-country workers

and EC nationals on an equal footing, the theme that runs through the legislative

initiatives in the context of the Common Immigration Policy is rather clear:

the European Union wishes, on the one hand, to encourage legal migration and,

on the other hand, to stamp out illegal immigration. In the long run, TMC

workers in lawful residence stand to gain from it.

NOTES

1. In this study the terms ‘European Community’ and ‘European Union’ are used interchangeably.

2. A distinctive feature of the association agreements is that they are tripartite: the European

Community, its member states individually and each of the TMC. Although this construction

is necessary, as the EC does not enjoy exclusive competence in all areas covered by the

agreements, it has proven to be time-consuming considering as their entry into force requires their

ratification not only by the Community and the TMC concerned but also by every member state.

3. Signed in Brussels on 17 July 1995, in force: 1 March 1998, O.J. L 97, 30.3.1998, p.2.

4. Signed on 26 Feb. 1995, in force: 1 March 2000, O.J. L 70, 18.3.2000, p.2.

5. Signed in Brussels on 20 Nov. 1995, in force: 1 June 2000, O.J. L 147, 21.6.2000, p.3.

6. Signed in Brussels on 24 Feb. 1997, in force: 1 May 2002, O.J. L 187, 16.7.1997, p.3. Note

that this instrument is only an Interim Agreement. As stipulated in Article 75(2), negotiations

with a view to conclude an association agreement were to commence by May 1999. Until

then, the 1997 instrument remains in force, subject to any amendments made by the parties.

7. Signed in Brussels on 24 Nov. 1997, in force: 1 May 2002, O.J. L 129, 15.5.2002, p. 3.

8. Signed in Luxembourg on 25 June 2001. Egypt ratified it on 8 April 2003. The EU Council of

Ministers adopted on 21 April 2004 a decision approving the agreement, which entered into

force on 1 June 2004.

9. Signed in Valencia on 22 April 2002, not yet in force.

10. Signed in Luxembourg on 17 June 2002. On the same day, an Interim Agreement on Trade

and Trade-Related Matters between the European Union and the Republic of Lebanon was

concluded, which entered into force on 1 March 2003, O.J. L 362, 30.9.2002, p.2.

11. For the purposes of the present study, the term ‘migrant worker’ is deemed to mean a national

of one state who has been authorized by another state to reside in the latter’s territory for the

purposes of pursuing paid employment. Thus, the essay is primarily concerned with aliens,

who are lawfully present in the territory of another state and remunerated for the work offered;

only passing references are made to illegal immigration.

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12. Thus, Article 6 of the Agreement with Morocco stipulates that the Community and Morocco

‘shall gradually establish a free trade area over a transitional period lasting a maximum of

12 years’ starting from the date of its entry into force, that is until 1 March 2012. In the case of

Jordan, the deadline is 30 April 2014.

13. See Chairman’s Summary and Conclusions at the Seventh Meeting of Experts on

Economic Transition in the Southern Mediterranean, 23–24 April 2004, Brussels, available at

khttp://europa.eu.int/comm/external_relations/euromed/etn/7mtg/concl.html.14. See Council Recommendation of 30 Nov. 1994 concerning a specimen bilateral readmission

agreement between a member state and a third country, O.J. C 274, 19.9.1996, p.20.

15. This is the fundamental for the international law axiom, pacta sunt servanda,

which has been embodied in Article 26 of the Vienna Convention on the Law of Treaties (1969).

16. See, respectively, Articles 64–8, 69–70 and 71–3 of the agreements with Morocco and

Tunisia and Articles 67–71, 72–3 and 74–6 of the agreement with Algeria. For purposes of

simplicity, all references will be made to the agreement with Morocco.

17. The principle of free movement of workers among the member states and the prohibition of

discrimination against workers, who are nationals of another member state, are enshrined,

respectively, in the first and second paragraphs of Article 39 of the Treaty Establishing the

European Community (hereafter ‘EC Treaty’).

18. On the contrary, these provisions do not apply to nationals residing or working illegally in the

territory of their host country; see Article 66 of the agreement.

19. Note that Article 64(2) of the agreement extends the protection afforded by para. 1 to those

Moroccan workers, who are temporarily in paid employment in the Community territory, only

as far as working conditions and remuneration is concerned. The omission of dismissal from

the ambit of protection should be regarded as obvious considering that such employment has

a predetermined duration.

20. In this regard it should be noted that at the time these agreements were negotiated the

Community had attempted to secure that its own citizens have first refusal in filing in

vacancies; see Council Resolution of 20 June 1994 (note 35 below).

21. Cf. Article 42 of the EC Treaty.

22. For Community nationals, this issue has been addressed by virtue of Council

Regulation 1408/71 of 14 June 1971 on the application of social security schemes to

employed persons, to self-employed persons and to members of their families moving within

the Community, as consolidated in Council Regulation 118/97 of 2 Dec. 1996, O.J. L 28,

30.1.1997, p.1.

23. Note that the institutional structure of the agreements entails two organizations: an Association

Council, which meets at ministerial level, and an Association Commission comprising

high-level officials from the Community and the TMC; see, respectively, Articles 78–9 and

81–2 of the Morocco agreement. Council meetings are usually organized once a year.

24. See, respectively, Articles 80–81 and Articles 82–4 of the agreement with Jordan, Articles

63–7 of the agreement with Egypt and Articles 63–6 of the agreement with Lebanon.

25. See, respectively, Article 81 and Article 84 of the agreement with Jordan.

26. See Decision No. 1/2003 of the EU-Jordan Association Council of 23 Aug. 2003 which sets up

subcommittees of the Association Committee and a Working Party for Social Affairs, O.J. L

215, 27.8.2003, p.92. For the Commission proposal, see COM(2003) 411 final of 8 July 2003.

27. See Article 63 of the agreement with Israel.

28. See Articles 61–9 of the EC Treaty, as amended by the Treaty of Amsterdam, which was

formally signed on 2 Oct. 1997 and entered into force on 1 May 1999.

29. See Tampere European Council, Conclusions I.4.–I.7, reproduced in Bulletin of the European

Union, 10-1999, pp.9–11. The legal basis for adopting such legislation is Article 61 of the EC

Treaty.

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30. Naturally, there is a paradox in the wording of the Conclusions referring to ‘obligations being

granted’; obligations may only be assumed, usually on account of corresponding rights being

granted.

31. For previous work on this issue, see Council Recommendation of 22 Dec. 1995 which

harmonizes means of combating illegal immigration and illegal employment and improving

the relevant means of control, O.J. C 5, 10.1.1996, p.1.

32. See Communication from the Commission to the Council and the European Parliament on a

Community Immigration Policy, COM(2000) 757 final of 22 Nov. 2000.

33. See Laeken European Council, Conclusions I.16, reproduced in Bulletin of the European

Union, 12-2001, p.18.

34. See the various Communications from the Commission to the Council and the European

Parliament on the Scoreboard to Review Progress on the Creation of an Area of ‘Freedom,

Security and Justice’ in the European Union, COM(2000) 167 final of 24 March 2000;

COM(2001) 278 final of 23 May 2001; and COM(2002) 261.

35. See Council Resolution of 20 June 1994 on limitations on admission of third-country nationals

to the territory of the member states for employment, O.J. C 274, 19.9.1996, p.3.

36. See European Commission Proposal for a Convention on the Admission of Third-Country

Nationals to the Member States of the European Union, COM(97) 387 final of 30 July 1997,

O.J. C 337, 7.11.1997, p.9.

37. The European Parliament delivered its Opinion on 10 Feb. 1999, O.J. C 150, 28.5.1999, p.187.

38. See Proposal for a Council directive on the conditions of entry and residence of third-country

nationals for the purpose of paid employment and self-employed economic activities,

COM(2001) 386 final of 11 July 2001, O.J. C 332E, 27.11.2001, p.248.

39. Note that a uniform format for residence permits for third-country nationals has been adopted;

see Council Regulation 1030/2002 of 13 June 2002, O.J. L 157, 15.6.2002, p.1.

40. These are also the three general exceptions envisaged in EC law regarding the free

movement of workers and the right of establishment, see Articles 39(3) and 46(1) of the

EC Treaty.

41. See Council Resolution of 5 March 1996 on the status of third-country nationals residing on a

long-term basis in the territory of the member states, O.J. C 80, 18.3.1996, p.2.

42. See Proposal for a Council directive concerning the status of third-country nationals who are

long-term residents, COM(2001) 127 final of 13 March 2001, O.J. C 240 E, 28.8.2001, p.79.

In its Opinion of 5 Feb. 2002, O.J. C 284 E, 21.11.2002, p. 102, the European Parliament

endorsed the proposal.

43. Directive 2003/109/EC concerning the status of third-country nationals who are long-term

residents, O.J. L 16, 23.1.2004, p.44. Note that the United Kingdom, Ireland and Denmark,

having invoked opt-out clauses, did not participate in the directive’s adoption and are not

bound by it.

44. See Article K.1(3)(a) of the Treaty on European Union (the Treaty of Maastricht).

45. See Commission Communication to the Council and the European Parliament of 24 Feb. 1994

on Immigration and Asylum Policies, COM(94) 23 final, para. 74 at p.21. For the Council of

Ministers Conclusions on the Communication, see O.J. C 274, 19.9.1996, p. 49.

46. Commission Proposal for a Council Directive on the right to family reunification, COM(99)

638 final of 1 Dec. 1999, O.J. C 116E, 26.4.2000, p.66 and Amended Proposal, COM(2000)

624 final of 10 Oct. 2000, O.J. C 62E, 27.2.2001, p.99. For the Opinion delivered by the

European Parliament, see O.J. C 135, 7.5.2001, p.174.

47. Council Directive 2003/86/EC of 22 Sept. 2003 on the right to family reunification, O.J. L

251, 3.10.2003, p.12.

48. O.J. C 364, 18.12.2000, p.8, reproduced in [2001] 40 International Legal Materials (ILM)

266.

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49. See Communication from the Commission to the Council and the European Parliament,

Integrating Migration Issues in the European Union’s Relations with Third Countries,

COM(2002) 703 final of 3 Dec. 2002, not published in the Official Journal.

50. See Seville European Council, Conclusions I.12, Bulletin of the European Union, 6-2002,

p.14. For an early example of such a clause, see Articles 68–70 of the Agreement with Egypt.

51. In force: 23 March 1976, 999 United Nations Treaty Series (UNTS) 171.

52. In force: 3 Jan. 1976, 993 UNTS 3.

53. In force: 4 Jan. 1969, 660 UNTS 195.

54. In force: 3 Sept. 1981, 1249 UNTS 13.

55. In force: 2 Sept. 1990, appended to General Assembly Resolution 44/25.

56. Convention C 048, adopted on 22 June 1935, in force: 10 Aug. 1938, ratified by 11 member

states, including Israel, Italy, Holland and Spain.

57. Convention C 157, adopted on 21 June 1982, in force: 11 Sept. 1986, ratified by 3 member

states, including Spain and Holland.

58. Convention C 097, adopted on 1 July 1949, in force: 22 Jan. 1952, ratified by 42 member

states, including Algeria, Belgium, France, Germany, Israel, Italy, Holland, Portugal, Spain

and United Kingdom.

59. Convention C 111, adopted on 25 June 1958, in force: 15 June 1960, ratified by 159 member

states. All EC Members have ratified it as well as Algeria, Egypt, Israel, Jordan, Lebanon,

Morocco, Syria and Tunisia.

60. Convention C 118, adopted on 26 June 1962, in force: 25 April 1964, ratified by 38 member

states, including Denmark, Egypt, Finland, France, Germany, Ireland, Israel, Jordan, Holland,

Sweden, Syria and Tunisia.

61. Convention C 143, adopted on 24 June 1975, in force: 9 December 1978, ratified by 18

member states, including Italy, Portugal and Sweden.

62. General Assembly Resolution 45/158 of 18 Dec. 1990, reproduced in [1991] 30 ILM 1517.

It opened for signature on 2 May 1991.

63. Even though Article 87(1) stipulated that its entry into force required only 20 ratifications, the

Convention came into force on 1 July 2003. Generally, see Commission on Human Rights,

Sub-Commission on Prevention of Discrimination and Protection of Minorities, Comprehensive

Examination of Thematic Issues Relating to the Elimination of Racial Discrimination: The Rights

of Non-Nationals, UN Doc. E/CN.4/Sub.2/1999/7/Add.1 (31-5-1999).

64. See Commission Communication of 24 Feb. 1994, (note 45), calling upon member states

to ratify it. By June 2003, 34 states, among them three Mediterranean countries (Egypt,

Morocco and Turkey), had signed it; see Report of the Secretary General, Status of the

International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families, UN Doc. A/58/221 of 6 Aug. 2003. For previous Status Reports,

see UN Doc. A/57/291 of 9 Aug. 2002, UN Doc. A/56/179 of 12 July 2001 and UN Doc.

A/55/205 of 28 July 2000. Currently ratified by 25 states including Egypt and Morocco.

65. See Resolution AG/RES.1775 (XXXI-0/01) of 5 June 2001 on the human rights of all migrant

workers and their families and the subsequent resolutions AG/RES.1898 (XXXII-0/02) of

4 June 2002 and AG/RES.1928 (XXXIII-0/03) of 10 June 2003.

66. In its 57th Session (2002), the General Assembly urged member states to ratify the

Convention on two separate occasions: see Resolution 57/201 of 16 Jan. 2003 and Resolution

57/218 of 27 Feb. 2003.

67. Note that the first UN human rights instrument enshrining the principle of non-discrimination

with respect to rights protected in it was the Universal Declaration of Human Rights (1948);

see Article 2 of the Declaration, which, in varying forms, has been repeated in all subsequent

instruments including the ICMW.

68. See UN Human Rights Committee, General Comment No. 6, ‘Article 6’, 1982, p.5: ‘The right

to life . . . is the supreme right from which no derogation is permitted’.

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69. Thus, minors who are in gainful employment in the country of origin may be considered not to

fall into the ambit of the right to reunification.

70. Cf. the much wider definition of family members given in Article 4 of the Convention.

71. See the above discussion of Article 64 of the agreement with Morocco.

72. See, inter alia, Articles 26–34 of the ILO Constitution, the First Optional Protocol to the

International Covenant on Civil and Political Rights (1966), Article 11 of the International

Convention on the Elimination of Racial Discrimination, and the Optional Protocol to the

Convention on the Elimination of all Forms of Discrimination Against Women (1999).

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