ORIGINAL ARTICLE
CARNEIRO, Dioclécio Salomão [1]
CARNEIRO, Dioclécio Salomão. Right of cooperation between States: The search for solutions to the internal interests of immigration. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 03, Vol. 05, pp. 150-164. March 2020. ISSN: 2448-0959. Acess link: https://www.nucleodoconhecimento.com.br/law/cooperation-between-states, DOI: 10.32749/nucleodoconhecimento.com.br/law/cooperation-between-states
SUMMARY
The research proposal is based on analyzing whether the most different forms of Cooperation between States occur, the sovereignty of one or the other may be at risk, from the point of view of international relations with the independent treatment of immigrants. In this context, we seek to evaluate the assumptions and consequences of this cooperative model among the Constitutional States as a form of articulation and condition of this cooperative, guaranteeing the so-called fundamental rights to this portion of individuals.
Keywords: Constitutional law, democracy, cooperation, immigration, sovereignty.
1. INTRODUCTION
The challenges present today are bolder from the point of view of fundamental guarantees to those individuals who practice immigration as a way of seeking better living conditions for themselves and their loved ones. However, history reveals different barriers in these movements, and the Wall of China, the Wall of Germany and, currently, the United States, on the border with Mexico, can be cited. The debate that led to and leads to the construction of these crossing stemming constitutes the most diverse political and supposed security reasons that have intensified at the borders.
However, the article seeks to portray the vision beyond the border crossings of each Nation State, focusing on the perspective of immigrants who risk living in safer, prosperous environments and according to their personal needs. This movement has always occurred between the continents and which is now being studied in the bias of the minimum guarantees that international law can harm to these individuals, with the intention of making the internal policies of each country less aggressive in order to care for these populations, which are often in conditions of extreme vulnerability.
2. THE COMMON RIGHT OF COOPERATION. HUMAN RIGHTS WITH BINDING INTERNATIONAL STANDARD OF STATE
The challenge of cooperation between states takes shape from the capacity that each country has towards its population, whether within the framework of the culture of acceptance of other people of different ethnicities or even in the obstacle posed by the receiving society. In the sense of having prejudice cast through excuses given by the economic and social situation or even by the claim to bring these immigrants with them, problems related to their conduct, which may destabilize that then organized and standardized society, are frequent. As Torronteguy (2010) explains, cooperation programs are focused on the application, development and awareness of human rights. However, in many times, it aims to contribute to the societies that receive cooperation, and, thus, it is an education model of these societies, aiming at the guarantee of human rights, often, therefore, the emphasis on the skewed culture of the donor country.
The capacity and depth, as human relations are understood and interpreted from their fundamental rights, are due to the effective application of these guarantees, and thus, at the moment when the need for immigrant peoples to embrace their rights arises, the international relationship between countries and international law itself act as mediating instruments of these statements. The different countries relate through their Constitutions, whose planning creates mechanisms that make states capable of assigning, in their legal rules, qualities to remain independent, but, at the same time, it guarantees the responsibility to interact with other nations in order to cooperate with each other in the search for urgent solutions to solve the problems that mainly afflict the humanitarian issues of their populations.
Thus, Maliska (2008) reiterates that the Brazilian Constitution, in its international relations, is governed by principles that value the prevalence of its sovereignty to human rights, in addition to the peaceful solution of conflicts, cooperation between peoples for the progress of humanity and integration between Latin American countries. Seeking the most appropriate interpretation to the final objective of the norm, in this case, total coherence and concomitance is attributed to respect for the foundations that govern the dignity of the human person, whether immigrant or not. For this, it is worth emphasizing the importance of permanent interaction between international states as a model of formal and concrete practice in actions to protect those who are in degrading situations and vulnerability, here, in this case, immigrants who have the status of refugees.
Brazil plays an important role in international participation, as it is a country of peaceful ideals and values dialogue in conflict resolution. It thus brings a model of cooperation aligned with peace between nations and their peoples. This, therefore, is the model presented in international debates. For Cintra (2010), the Brazilian Cooperation for International Development has been driven by principles aligned with the visions of equitable relations and social justice, constituting itself as an important foreign policy instrument. In this context, raising human rights issues in the midst of debates makes this issue relevant in international meetings, as it is the opportune time to seek better living conditions for the local and immigrant population. It is an ideal that the Brazilian nation supports.
Brazil, based on its political and legal leaders and also the organized civilian population, has realized the need to be increasingly present in international discussions on the movement of people between the various nations of the globe. In writing about the concern of the Brazilian State, Araujo (2008) stresses that international legal cooperation has increased, because every day the number of Brazilians who are abroad is growing, the new contours of the country’s international insertion and the fight against transnational crime. It is a matter of need for the Brazilian State to assume positions of dialogue and pacify controversial issues as a way to ensure the safety of its citizens who are temporarily or indefinitely in foreign lands.
The immigration movement arises on a large scale from factors that drive its occurrence, either due to problems related to violence, misery, wars, climatic conditions and even due to natural factors such as earthquakes, floods, tornadoes, among other situations attributed to nature. Piovesan (2006) informs piovesan that economic issues and wars themselves are the main drivers of immigration between countries. This conception, therefore, reiterates the consequences of the recent movement in history, known as post-war, whose response is due to the atrocities and horrors experienced and committed during Nazism. These conditions force individuals to move from one place to another, leaving their roots, histories and family members for various reasons of extreme urgency and need in most cases.
Therefore, human rights must be constantly developed and realized on the path of the evolution of international law, considering the domestic laws of each receiving nation. Every process of evolution, whether it is focused on legal, economic and social conditions suffers and needs perennial adjustments to accompany the needs and facts that may occur with regard to the movement of people around the world. In Gomes’s reading (2011), the process of globalization, while providing the internationalization of the productive system and services, also highlights desires, let’s say immediate, to solve the survival needs of humanity that are a social “background” to a concrete reality of the power of change.
With the globalization movement that was established based on capital circulation practices in different nations, whether through investments, realized profit, hiring labor and other inputs necessary for economic activity, the bias of this movement was mainly based on the massification of product consumption and at ever-lower costs, which is not bad for individuals around the globe , as it tends to facilitate everyone’s access to the necessary products and services. This movement of capital between countries, called globalization, also generates factors that culminate in the practice of immigration in search of better living conditions and concreteness of fundamental rights, because where there is circulating capital, labor and income, the flow of people tends to be directed by an obvious issue of achieving the best conditions of survival for themselves and their neighbors.
International law together with international organizations seeks, to a large extent, to dazzle policies to protect immigrants and, above all, to realize, in fact, the fundamental rights of this vulnerable group of veras in countries of precarious condition and legal certainty, even if the rights of foreigners are minimal. However, alongside the global regulatory system, regional protection systems emerge that seek to internationalize human rights at regional levels, particularly in Europe, America and Africa, according to Piovesan (2009). In this context, to appreciate regionalization beyond continental borders is still another attempt to put into practice the factors and guarantees, even if minimal, for refugees, immigrants and tourists, due to their vulnerability.
3. CURRENT MIGRATORY FLOWS. EUROPEAN AND BRAZILIAN CASE ANALYSIS
It is undeniable the movement of capital in different nations, acting in the name of the so-called globalization, in the search for profit, cost reduction and mass production of products. Thus, it is possible to observe, clearly, that the economic scenario contributes largely to the favoring or not of immigration and movements of the human population. On the Brazilian scenario, Lisbon (2004) presents a kind of reconstitution of the economic bases and the labor force and the mobility of international capital, placing itself as articulating the distribution of populations in the territory. In this context, the turnover of in-house capital and the boosting of labor traffic, having or not qualified, at low cost, thus feed the productive activities spread throughout the globe, in order to ensure its reproduction and transformation in order to meet demands.
In the social context, the economy represents a role of relevant importance, to the point of restraining people from various places around the globe in search of better living conditions for themselves and their families. Moreover, the burden of this movement also needs to be taken into account in the policies applied between nations, and also in the internal action of each country in the face of the challenges of accommodating and reducing the inequalities existing internally whose people, by their own conscience and knowledge, make the decision to advance abroad in order to prosper in the face of the difficulties experienced in their homeland. Migratory processes should not be treated as an anomaly of an unrestricted generic form of analysis, having seen this process exist since the beginning of human civilization.
In this perspective, it is possible to analyze that the human being has always been in search of better living conditions and, also, the pathfinder spirit was always on the side of the need to discover new territorial areas from which they could be explored and colonized. Elhaji (2012) declares that the founding condition of the human species caused all corners of the planet to be colonized, and thus one cannot see migration as an anomaly or exception, because it is she who supported the process of humanization, construction of material bases, capacity for abstraction and, furthermore, reshaped the social and historical meaning of the subject. However, it must be declared that, in many situations, there is a need for immigration with the intention of immediate escape by basic human occurrences, such as hunger and violence in the various geographical spaces scattered around the planet.
Any analysis that goes back to the research on the International Rights of immigrants, necessarily needs to consider the immigrant foreigner in its fullness from actions proposed as instruments of effective fundamental rights of the human person, in the condition of undeniably vulnerable person in the face of the foreign state. It is in this protection bias that the right, together with the agencies responsible for articulating projects and policies that can be effective in sustaining the appropriate measures, must guarantee the minimum guaranteed by law, such as returning to your nation in the company of your family entities. However, Zamberlam (2004) points out that there are factors in common for human displacements factors such as: war conflicts, precarious living conditions, political, ethnic, social and religious struggles, in addition to natural and provoked disasters, social inequalities and, also, personal fulfillment itself.
No population movement, whether definitive or even temporary, can be believed as without real reason or need, and thus it is evident that the factors that lead the vast majority of people to move from their countries of origin to others are directly related to problems due to poor or poor conditions of survival, either by lack of opportunities or even because they discredit that better days will come. They aim to alleviate the suffering or even misery of food, water, lack of state organization, corruption, extreme inequality, etc. Thus, a State that wants to be able to respect its citizens from the suitability with public money, which does not invest efficiently and that causes does not value the collectivity makes the population want to live in a better place.
According to research conducted, it is possible to ensure that the globalization of the world economy is one of the most relevant factors in decision-making by individuals who thus decide to carry out the migratory movement of the most different nations. The highlight that Martine (2005) makes is in the sense of reiterating, in his study, that globalization increases the flow of information about opportunities or even living standards. Thus, these factors show that the willingness to migrate and take advantage of certain amenities that appear to exist are created in other countries, which drives these subjects. In short, the patterns of international migration are reflected in inequality and economic and social changes between nations, thus ratifying globalization as a preponderant factor for migratory movements.
The search to generate profit and wealth from investment is converted into work for those who need it and is a necessity of the production cycle itself. However, the labor force, consequently, unites the useful by transforming it into pleasant for those who find in immigration a way to remedy their personal and collective needs, since the State of its origin did not have the ability to provide the self generation of the resource in the best possible way to ensure that its citizens did not have the genuine interest allied to enough insight in galling new horizons of concreteness abroad. In the case of legal certainty, it is necessary for individuals to be able, even minimally, to have the necessary certainty that the receiving country will give them the basic right to return their origins. Thus, it is necessary to discuss it, so that this premise is actually established in international law and reaches the internal legal norms of each State.
Precariousness, in turn, is directly related to the level of development of each nation, and thus not only the economic aspect is considered, but also the interpretation and application of the right itself, and, thus, it starts from the understanding that immigration is a natural process, according to factors previously mentioned. Therefore, the application of the legal system is urgently applied in order to guarantee the minimum necessary of the fundamental guarantees of the human being. Therefore, it is said that the rights to emigrate and to immigrate are therefore dependent on legal regulation and must have, in their bulge, a foundation capable of conferring legitimacy on them, supported by international human rights postulates and the constitutional principles that govern the internal legal order, as santos (2014) narrates.
The necessary effort of each receiving country, in addition to the support in international organizations capable of influencing appropriate policies, is necessary for the guarantee of fundamental rights in its legal norms, which can be understood as the right to life, shelter, health, food, union between the members of the same family and the return transport itself, if so the rule and desire of the receiving country. The basic issues of immigration policy should be sensitive to differentiated treatment, and thus, the immigrant-individual moves to the appropriate refugee condition in the search to preserve his life and his/her family in the instant of despair in the face of the facts lived in his place of origin. It is also the object of study of the places whose immigrant will attend, since it is not limited only in the work space sought at first. It should also be contemplated the other spaces necessary for living with the other natives of that community to which it is located.
To this end, Martins Junior and Dias (2013), highlights that academic research points to the reflection not only of the immigrant centered on the space he occupies, but also to the transformation generated in the receiving society. The fact of attending places such as clubs, soccer games, religious places or other spaces of social coexistence influences the lifestyle, in addition to the initial objectives, reformulated or not. The adequacy of the internal and external law of immigrant individuals versus the receiving society, in order to minimize or even neutralize actions of hostility towards these individuals, require, by the characteristics already demonstrated, of state security. This mobility comes from the very ills in which ancient and current society insist on carrying with it, due to wars, authoritarianism, injustice, indifference and, mainly, due to intolerance. These are factors that cause profound unnecessary shocks to human conviviality.
The control carried out by each State in order to reduce this migratory flow, while seeking to protect its internal population, also generates conflicts from the point of view of the fundamental guarantees of the human being, while local interests end up being put in check the instant that migratory processes become increasingly larger and driven by similar objectives of each individual , that is, the search for better living conditions. Pires (2002) reveals that the effectiveness of immigration policies aimed at regulating current flows necessarily depends on the state’s ability to act to mobilize the growth factors of these movements.
It is therefore mentioned, considering the context presented, that the labour market, in addition to the extension of the rights of foreigners, should also be analyzed. Policies focused on entry limitation devices in the recipient country will only deliver long-term results because they depend on the development of international collaboration in border control. It is noteworthy here that the entry of populations in other States and their convenience is also linked to the need for the receiving country to have manpower or even improve the population replacement deficit, which has often occurred in some European countries.
4. INTERNAL IMPLICATIONS OF IMMIGRATION. THE RECEIVING STATE AND THE INTERNATIONAL RESPONSIBILITY
It is understandable, to some extent, that people from the receiving State have negative reactions to the immigrant population, because they are taken by the confusion of the rights that should be guaranteed by the nation state, however, it does not guarantee them, thus leaving a vacuum in the memory of rights that do not enjoy, sometimes and repeatedly, the lack of responsibility in the management of public spending , thus causing real problems of reluctance to accept, even temporarily, people from migratory processes. Thus, there is still a trend in Brazil that considers nationality and citizenship as synonyms, which does not translate into a truth. While the former has a strong connection with the State, the second includes qualities of the individual, according to Cleto (2015).
However, it is understood not only the cultural capacity to accept, in a peaceful and orderly way, the entry of those who seek better living conditions, but also the legal, state, political and economic organization added to the interpretative model of acceptance or denial of foreign populations to the receiving society involve this process. The way immigration sits can be classified due to the high risk of life, such as in cases of wars or due to religious intolerance itself, but factors are also understood, such as job search situations, better pay or because they want to live in a country with life-friendly factors, especially in the cultural sphere, of legal and financial stability , or even the fact that investors see better conditions for applying financial resources in this region.
And, at this level, Sá and Fernandes (2016) points to the relevance of verifying that immigrants from Brazil, who are heading to Portugal, plan this process, unlike immigrants who make up other flows to the European Union, such as Syrians and Libyans. Explicit factors should be highlighted for these factors, such as the expulsion imposed by the anti-democratic political and religious situation. On the contrary, immigrants from the Portuguese language tend to migrate through safer channels, strictly airports. It can be affirmed, however, that the path of legality and by conventional means of access to the foreign country determine the greater security and provide better conditions to achieve the goal by which it was launched in the migration movement, because the conditions of entry by illegal and risky means tend, for the most part, to be suffered.
For this, it is increasingly necessary to ensure the minimum concrete and international guarantees so that they can cause a kind of internal pressure to the receiving country as a mechanism to allow immigrants conditions for them to settle, or, if not, so that they can at least have their right of return or refuge, if the original situation suggests. The occurrence of informal work often overcomes the barrier of activity carried out in a dignified manner, because cheap and often disqualified labor is employed, especially in poorly developed countries or with a culture impregnated with abusive exploitation towards others. These factors are added to the status of immigrant, because, in many cases, their permanence is illegal, and thus accepts any exploitation activity, because it is the only means found to remain in that country or return to their country of origin, which, for these people, is worse than their current conditions.
Thus, he submits to these conditions in the hope of improving his condition in the face of the opportunities that may occur. They cling to the possibility of ascending professionally, especially those who have the mastery of the foreign language and qualification accepted at the receiving site. However, they also depend on the economic and legal condition of this nation to enable the concreteness of the desire of the one who immigrates. For Reynolds (1980), immigrants and minority groups often play the toughest role in the innovation process, in addition to the more servile workforce. The alternative to this transformation would be to decentralize production to the less wealthy trading partners. And also, as vigorous business capacity becomes less accessible in developed countries, it is expected that there will be a decline in investments abroad and that products and services will become increasingly competitive.
It is also necessary to highlight the costs of the State in accepting and maintaining immigrant populations, as they are factors that cause the direct or indirect effect on public accounts and, consequently, in additional amounts to be disbursed by the taxpayer. It is necessary to guarantee to those who come from other nations the same conditions of health, education, work and housing, otherwise they are to refer them to the country of origin from which, often, by humanitarian conditions, it is not possible. Or actually assume the situation that is found and develop, as much as possible, actions for these subjects. The vast majority of countries have had their training based on individuals who have taken the risk of immigrating in search of better life opportunities, thus helping to build much of what is present in cities across continents.
Immigrant populations, because they originate from different regions of the globe, have created different customs and the pre-existing health condition itself becomes a challenge for the receiving countries. If it has been seen, they may need medical contributions different from those offered by their state of origin. This is a specific example of immigrant groups settling elsewhere. Martes and Faleiros (2013) reports that the State that recognizes the universal right to health and establishes, in its Constitution, does not mean, however, that they implement it or that they do it effectively. However, for immigrants who have different characteristics of the native population, it is necessary to develop and implement ways to ensure the access of this population to health.
Only with specific treatment does it become possible to treat vulnerable individuals, especially those who are in refugee status. Thus, the political and normative model is an effective instrument to ensure the insertion of those who seek to establish residence abroad. Of course, the text lists mainly those who are in a situation of indisputable vulnerability, because there are other cases that immigration is done by the so-called safe routes, in accordance with the internal public law of each country and even, to some extent, will need all protection from the State Apparatus. It is possible to determine, with a great margin of reckoning, that there are countries that expose these immigrants to a hard journey, because they have moved from their home country abroad. It is understood that it is a way of ensuring well-being.
Latin America contributes significantly to the insertion of these individuals abroad. When analyzing the factors that lead to this practice, we can see the prevalence of some factors, such as corruption, violence, lack of work or very low remuneration, in addition to the absurd inequality that generates a real gulf between rich and poor. This undoubtedly demonstrates the reality of a “baronil” country, as is the case of the Brazilian nation. In patarra’s reading (2005), in the countries of South America, there was, in general, a process of democratization marked by financial crises, fiscal deficit, increasing external and internal debts and the stagnation of the productive process, thus impressing, as a counterpart, the increase in poverty, inequality and exclusion, the result of which is the increasing distancing of rich countries.
Simple democratization without true and concrete citizenship generates discontent among the population and the less favored find themselves with two options of choice: whether acceptance and this does not necessarily mean adopting silence or the search for foreign lands. Its perspective of pleading new horizons of comfort and personal, social and legal security, along the lines of developed and mature countries, leads to the search for better solutions. It can be said that the vision of a state closed politically and physically from grids, screens or walls that prevent the movement of people is a somewhat retrograde and oppressive measure towards humanity. The global view of economics no longer allows the idea of isolation, because nations are magnitable by speaking of their home and liberal economies, however, they close themselves to humanity, there can be characterized a true exploitation of the human being in its essence.
Physically blinding countries cannot be on the international market, as they will exploit profit and the global economy in a pure way without the humanitarian return with the countries with which they trade. This could be discussed at the world trade organization’s high summit, because in all the profits generated there is the return to society, from which financial gains are obtained. According to this view, state sovereignty, which was absolute and unitary in the Vestfalian view, disaggregated due to the processes of globalization and multiculturalism, as Bernardes (2011) points out. In this bias, everything becomes globalized, due to the economic emphasis on liberal trade relations. On the other hand, free trade between nations is mixed, but there is also the challenge of remedying the difficulties they have experienced. In the effort to balance the financial capital that flows from one place to the other of the globe, these effects and consequences that are predictable must be intermediated and remedied in the public space of the debate,
Aligning the public interest with the private, thus creates a balance point in commercial relations, without, therefore, generating such a disadvantage for one of the parties. Perhaps the only option is for its internal population to migrate in search of current monetary capital, wherever it is. This, therefore, is the price that is paid when faced with deep inequalities in commercial relations, whose profit does not generate wealth for generations, but only the increasing and individualized concentration, the result of the added value of labor and the exploitation of natural resources. The way in which the phenomenon of immigration is interpreted is directly related to the capacity of a State supported by its values, political and legal practices, and thus it is suggested how much can be achieved in guaranteeing the rights of its citizens, and also of those who seek some form of protection and construction of their lives different from that offered by their state of origin.
FINAL CONSIDERATIONS
It is worth noting that universal human rights, as Botelho (2005) portrays well, comprise the right to life, non-submission to inhuman or degrading treatment, not being subjected to slavery, protection in relation to the arbitrary, right to security and equality, to have a decent existence free of hunger and freedom of expression. They are, therefore, premises that play the role of supporting any democratic legal system, of which the State has, by obligation, to ensure such a prominent foundation, otherwise it will cause social ruin.
The population movement, because it is treated as something that occurs with a certain naturalness, according to the international history itself portrayed, reiterates, then, that it appreciates fundamental guarantees, and, when not realized, can cause barbarism against individuals who are the most vulnerable to military power, guerrillas, religious and targets of intolerance, factors that place them in situations of inequality. Historically, immigrants have always been exploited and it is a reality still present, and thus needs to be combated.
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[1] Master’s degree in Constitutional Law, Fundamental Rights and Democracy, Bachelor of Law and Accounting Sciences.
Posted: September, 2019.
Approved: March, 2020.
