Дипломная работа: Defense and foreign policies of the global and regional actors in middle east and north Africa and its impact on the Eu’s turbulence: the cases of Syria and Yemen in 2011-2017

3.2 Regulations for the third country nationals

There are three main spheres of regulation, concerning citizens of the third countries, within the legal mechanism of regulation of migration flows in the EU:

1. visacontrol;

2. protection of refugees and asylum seekers;

3. formation of the common migration and asylum policy for migrants from the third countries.

Visa control. The principle of uniform control on external borders of the EU is the basis for visa control. According to this principle, bilateral visa agreements of the member-states with the third countries are excluded. On a basis of the Schengen II was established the Schengen visa for free visit of the EU. Respectively, there were defined countries for the visa regime and countries which citizens are exempted from receiving visaCouncil Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32001R0539.. The EU Council regularly instructs consulates of the member-states concerning rules of carrying out the common visa policy for the third countries. That is why was created a system of information exchange for visaCouncil Decision of 8 June 2004 establishing the Visa Information System (VIS) - 2004/512/EC:

http://eur-lex.europa.eu/eli/dec/2004/512/oj..

One of the basic provisions of this system is that the refusal of one of the member-states to provide the visa to the citizen from the third country works also for other member-states through which this citizen will seek to drive in the EU Nevertheless, there are some limitations for this approach defined in case С-503/03 Commission v. Spain (2006).. It is also necessary to mention the Visa Code adopted in the form of Regulations No. 810/2009 of the Council and the European Parliament on 13 July, 2009 and came into force at the beginning of April, 2010Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code):

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32009R0810.. It regulates procedures and conditions for delivery of transit visas and short-term stay of citizens of the third countries in the territory of the member-states for the term of no more than three months every half a year.

Protection of refugees and asylum seekers. In article 78 of the Treaty on the Functioning of the European Union (TFEU; Art. 63 of the Treaty on the European Union) formulates the purposes of the common policy of the EU for the third countries in the field of granting an asylum and temporary and subsidiary protection of migrants from the third countries needing such protection according to the Geneva Convention of July 28, 1951 and the Protocol of January 31, 1967 (New York) on the status of refugees (and other relevant conventions). The principle enshrined in Art. 33 of the Geneva Convention about protection of the refugees and displaced persons who do not have an opportunity to return to the country of nationality both for political motives, and for other motives and needing in international protection is the basis for the regulationFirst of all, it is about the basic principle following from the right of granting an asylum, - about refusal of return of the refugee to the country or the territory (the French term non-refoulment principle is applied here) where punishment on the basis of race, religious beliefs, nationality, belonging to a certain social group can threaten him/her. At the same time, not only the third countries, but also member-states which do not recognize prosecution from private institutions. The refusal of the House of Lords to deport refugees from Somalia and Algeria to Germany and France from where they arrived in England as these countries did not recognize prosecution from private institutions as the basis for providing the status of the refugee can be an example and by that broke the principle of not return. R v. Secretary of State for the Home Department ex parte Adan (2001), 2 AC 477 in Chalmers D., Hadjiemmanuil Ch., Monti G., Tomkins A. European Union Law. Cambridge, 2006. Р. 623-624..

In according to Art. 63 and 67 of the Treaty establishing the European Economic Community in edition of the Treaty of Amsterdam were established acts of the secondary law of the EU which allow to reveal two main aspects of policy and activities of the EU for granting an asylum and protection of the rights of refugees from the third countries. First, it is measures for strengthening of homeland security. There are standards of the national legal system of the member-states on migration of citizens from the third countries designed to play the leading role. Secondly, it is a humanitarian aspect which purpose is to provide the rights for the citizens (refugees) from the third countries on the basis ofrealisation of the principle of human dignity in all territory of the EU. Among the acts of the secondary law devoted to regulation of granting an asylum and the rights of refugees, it is important to detail the Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted As well as Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof: http://eur-lex.europa.eu/eli/dir/2001/55/oj.. This Directive is interesting because it establishes not only the minimum standards of qualification of citizens of the third countries and apatrides as refugees, but also enters difference between them and persons needing international protection, that has subsidiary character.

Strictly speaking, these categories of persons are closely connected among themselves. However, if the directive defines the concept «refugee» according to criteria of the Geneva Convention of 1951 and the New York Protocol of 1967 on the status of refugees, then the persons needing international protection do not answer these requirements. The directive carries to them only those who are under threats of the death penalty in the homeland country, tortures or the relation humiliating human dignity, violence during the international or internal armed conflicts. At the same time the threshold criterion for providing international protection is higher, than for refugees: if it is enough to adduce arguments of «reasonable fear» of causing serious harm by it, then for providing international protection the interested person needs to prove that his life is a subject to «real threat of causing serious harm» Obtaining the status of the refugee, according to the Convention, requires reasonable fear in prosecution for the reasons of the racial, religious, race hatred, for political beliefs, for belonging to any social group, for non-traditional sexual orientation (if it is not protected by national courts), for atheism. The Directive includes in justification also danger of sexual violence and children's slavery. The concept «prosecution» is interpreted loosely, it joins not only the state, but also private institutions..

The Directive, providing the status of the refugee, emphasises on humanitarian aspects, and in case of international protection - on police supervision. As a result of it, the persons which are subject to international protection are significantly limited in the rights, especially social and economic, in comparison with refugees19. So, they are deprived of the right for non-return (non-refoulment), and the term of their stay in the EU is limited to delivery of permission for one year. Their freedom of movement across the territory of state members is also limited to the issue of special allowing documents caused serious humanitarian reasons. They are also deprived of the labour rights and entrepreneurial activity. Their access to medical services and social protection is limited with a necessary minimum. The basic principle of the Directive - a guarantee of human dignity in all territory of the EU. For this purpose the member-states, which granted an asylum, are obliged to provide housing, food, clothes, necessary medical care, the right to move freely across the territory which can be limited for the benefit of police control. The persons who are looking for asylum (asylum seekers) have wider rights, than economic migrants. Moreover, in connection with granting an asylum and protection of the rights of refugees, it is important to mention also the Council Decision No. 2004/904 and the current Council Decision No. 2007/573 on creation of the Refugee Fund For the period 2014-2020 was created Asylum, Migration and Integration Fund. for questions of granting asylum. The Decisions, except other, provides distribution of a financial burden between the member-states.

Formation of the common migration and asylum policy for migrants from the third countries. After entry into force of the Treaty of Lisbon the common migration policy of the EU is regulated on the basis of Art. 79 (1, 2) of the TFEU (Art. 63 (3,4) of the Treaty on the EU) and has flexible character. The EU seeks to adapt it to events, proceeding in the world, and to compelling needs of the member-states. Considering extreme appeal of the EU for migrants from the third countries (mainly because of economic motives), its common migration policy is intended to guarantee effective management of migration flows, on the one hand, providing due treatment of citizens of the third countries who drive and live in the EU on legal grounds, and on the other hand - interfering with illegal migration.

Different issues of illegal and so called forced migration are vital challenges for the EU unity and security. Moreover, this is a sphere where we can see close relations between Law, Economics, Politics and Policies. Particularly, in questions of borders management and future scenarios for the EU development that will determine legislation for its implementation.

3.3 Heightened threats and scenarios

Sustainable growth and development is a very important idea for the European future. However, last terrorist attacks have shaken societies. Comprehensive political and economic crisis in the Middle East and North Africa is one of the main sources for refugee crisis, which saw 1.2 million people coming to Europe in 2015. These problems have led to a long debates about future perspectives and common principles among the member-states for broader questioning of borders management and free movement within the EU.

In the White Paper on the Future of Europe, produced by the European Commission (COM (2017) 2025 of 1 March 2017), we can find five scenarios for Schengen, migration and security regulation.

1. Carrying On

Provides cooperation in the management of external borders stepped up gradually, progress towards a common asylum system and improved coordination on security matters. With this scenario citizens rights derived from EU law are upheld. Borders management is the responsibility of individual countries, but cooperation is possible with the operational support of the European Border and Coast Guard. As a snapshot of this aproach, the Paper illustrates that Europeans are able to travel across borders without stop for checks, but they should arrive at airports an train stations in advance of departure.

2. Nothing but the Single Market

Does not provide single migration or asylum policy, further coordination on security dealt with bilaterally, internal borders control are more systematic. Given the strong focus on reducing regulation at EU level, this approach works with the risk of a «race to the bottom». Free movement of workers and services as well as common rules on the mobility or access to regulated professions is very important for this scenario. There are more systematic checks of people at national borders.

3. Those Who Want More Do More

Provides the same variants as in «Carrying On» except for a group of countries who deepen cooperation on security and justice matters. A group of the member-states can decide to work closer on different matters: exchange all information in the fight with the organised crime and terrorism or in areas connected with the border control. For example, a group of countries establishes a corps of policy officers and prosecutors to investigate cross-border criminal activities. Security information is immediately exchanged because the databases are interconnected.

4. Doing Less More Efficiently

Provides systematic cooperation on border management, asylum policies and counter-terrorism matters. The European Border and Coast Guard fully takes over the management of external borders. all asylum claims are processed by a single European Asylum Agency. On the one hand, it helps to close the gap between promise and delivery. On the other hand, the EU will have real difficulties in agreeing which areas it should prioritise cooperation.

5. Doing Much More Together

Even more systematic cooperation on borders management, asylum policies and counter-terrorism matters than in «Doing Less More Efficiently». There is far greater and quicker decision-making at EU level with more rights derived directly to the citizens.

For all these scenarios, it is necessary to clarify legal approaches that will be chosen for the future regulations of migration, borders and asylum system. As we can see from the legal analysis of the basic EU acts, there is no equal and defined position how to react on the current security challenges and how to adopt legislation for the purposes of closer cooperation and development.

3.4 State: conceptual analysis

Nowadays, we can see that states are the key actors on the global arena and have a unique opportunity as for providing economical development and for violation of human rights. Current globalization processes play the decisive role for the evolution of state. Current problems of the European Union and its policies (particularly, in migration sphere) cause the three - steps conceptual analysis of «state» concept.

«What social scientists have done is to provide a framework of analysis in which the state is one possible concretization of structures, one political dimension, or even one system of social bonds - but not the only one» [Nettl, 1968, p. 559]. Thus, we need in different approaches of semantic understanding of the concept. The state can be figured out in more general terms on two levels:

1) as a unibonded system, contrasted with language and territorial or neighborhood groups all forming a multibonded nation [Sorokin, 1962];

2) as «the institutionalization of authority…a special form of power» [Johnson, 1966, p. 30], when we consider the state from traditional point of view with such elements as power, force, coercion.

Also, if we compare different visions of state conceptualization, we will find four approaches of understanding the meaning of the state (in according to «old» and «new» traditions). These traditions study the state from different sides of analysis and focus on the essence of the concept, functions and aims of the state in historical and broader social blueprint. Moreover, different approaches have its own limitations that determine our understanding in some set of terms and values, and identify the framework of analysis: «systems analysis, whether sociological (structure-functionalism), political science-oriented (input-output), leaves open the empirical definition of goal-attaining, conversion, or regulatory structures» [Nettl, 1968, p. 559].

Table 4

The second step of our conceptualization of the state is to specify the concept inside broader theory. In according to P. Bourdieu we can comprehend the genesis of the state as the process of concentration and in this case such process will be more general concept. Bourdieu try to transform famous formula of M. Weber «the state is an X which successfully claims the monopoly of the legitimate use of physical and symbolic violence over a definite territory and over the totality of the corresponding population» in a long series of acts of institutions [Bourdieu, 1994, pp. 3-4]. It means that «the state is a culmination of a process of concentration of different species of capital» like ecomomic, informational, symbolic, capital of coercion [Bourdieu, 1994, p. 4]. In this regard, there is a very interesting characteristic of the «state» concept that revealed during the second step of conceptual analysis. Particularly, we can find the “state” not only as the concept but as кбфзгпсЯб or praedicabilia of social sciences in ontological way because this term is defined as the highest class of generalization and being over other different theories and concepts in logical hierarchy. For ancient Greeks (Plato, Aristotle), scholastic school, I. Kant the state was a kind of predicate where different human actions were observed. In the same way, we have seen the transformation of the state in the process of theoretical fragmentation and erosion for several decades.

The «state» concept has to be distinguished from other theories and terms that can be similar but have different essence and aims such as government, civil society, bureaucracies, governance (interactive, global, multilateral), new management system. Also, there are some theoretical differences (particularly, for empirical researches) between «state”, «stateness», and «statehood».

Table 5

In practice, it is very important to define the state from the government, bureaucracies, and governance. Fortunately, we have already passed the stage of historical development when it was necessary to separate the state from the identity of monarch. Governments and bureaucracies are the key actors of interstate communication or confrontation but the state is the system of economic, political, social, and cultural institutions, different processes of relationships between citizens. Thus, government is one of the institutions in difficult state system. In several decades, it has becoming very important to distinguish the state from the governance concept. In future perspectives we will have a new form of social organization without the state throughout development of such concepts as open society, global governance, global citizenshipSee for example: Belyaeva N. Y., «From Identity to Citizenship in the Global World: How Global Educational Institutions and Networks Can Contribute to a Culture of «Global Citizenship», ECPR Joint Session of Workshops 2015, Warsaw, 20 March-02 April, 2015. with structural transformations of an important state characteristics: identity, autonomy, sovereignty.

It is a crucial issue for the European Union to understand its own position on the state development. Does it support the functional approach or the Union will have broader horizons? Examples with common asylum and migration, security and foreign policies can give the answer on this question.

In conclusion it seems important to concentrate on two main points: policies and legal variables. During this research a very paradoxical situation was found - legal mechanisms of the EU provide one of the most eminent system of international protection for economic migrants, refugees and asylum seekers that was established in our history. Nevertheless, this system has absolutely humanitarian direction, and does not provide adequate reaction in the case of violent acts. In other words, the EU should rethink its policies that to save own values and ideals because terrorism and refugee crisis can use these opportunities for violation of human rights.

As a solution for this problem, it can be useful to implement two-steps policy on the basis of «Those Who Want More Do More» and «Doing Less More Efficiently» scenarios. It provides coordination on different matters for a group of states and ongoing systematic cooperation in future. Common migration and asylum policy as well as borders management are ideal spheres where the member-states can improve its unity. For example, Regulation 2016/1624 of the European Parliament and of the Council of 14 September 2016 develops policy and legislation on external borders control and provides the European integrated border management strategy where Frontex plays a realy important role.

Thus, experience of operational coordination with the European Border and Coast Guard and other agencies could be a first step before the systematic cooperation in this sphere. The EU regulations do not prohibit to establish more close cooperation between states in matters they are interested in. Particularly, it will be necessary to divide functions of the national authorities, Frontex and other agencies in according to the art. 44 of the Regulation. In art. 45 we will find the position that «the implementation of this Regulation does not affect the division of competence between the Union and the Member States». Nevertheless, experience of the operation Mare Nostrum show us that every step and act in this area must be very clear and defined by a regulation that to prevent a situation of inefficient policy-making.

Italy or any other member-state could not be responsible for the solution of whole refugee crisis because it is extremely costly for one state. That is why so important to provide ideas of common policies in sphere of migration to strengthen security and protect rights of the EU citizens and other persons. The EU law contains all necessary principles for regulation and management of current situation. There is only lack of certainty, predictability and clearness in the situation when the EU or one of its member-states touched with any forced actions. More than 70 years ago, eminent Italian thinkers and political prisoners Altiero Spinelli and Ernesto Rossi in their manifesto For a Free and United Europe (also known as «Il Manifesto di Ventotene») painted a picture of future for Europe where the force of law will be more important than use of armed forces. It does not mean that the EU should avoid to use force when it is a vital interest for everyone. After the events of 9/11 we found a new threat for our civilisation, and today all achievements (including free movement inside the EU) are under this challenge. Thus, regulation of migration flows in the EU is really important for the global order and sustainable development.

Conclusion

Conflict in MENA region and the Arab Spring events as one of the cases of hybrid war give us two global solutions where we would like to show perspectives of this modern method of warfare.

The first option represents the traditional decision for conflicts of this sort when the world community is involved in them. Simultaneous holding a military operation under the mandate of the UN and humanitarian intervention with the subsequent division of the country into influence zones will be the decision here. It meant so far as concerned Realpolitik. The similar solution by force has scenarios in various zones of the conflicts, distinction consists only in a set of the contradictory states. It is much easier to control the territory if to divide it into several parts. Yemen is too important state in the geostrategic plan that to look at the continuing war. At the same time, modern realities these are the similar decision will only delay an outcome of the conflict but will not solve problems of an economic and social collapse of the state and a political crisis.