Emanuel Migration

Emanuel Tval, New Challenges for Nation States and New Opportunities for Regional and Global
Development. International Private Law Stances
MIGRATION AND THE NEW CHALLENGES FOR NATION STATES
Emanuel Tval
1. Preliminary
Migration is every day in the news and it represents a great challenge, if not the greatest, for the nation
states and for the international law. We are now used to have such subjects every day in the news, even if
they are positive or negative news. If recently, migration has been considered from the point of view of
globalization in actuality we are facing the migration waves in Europe. At the beginning nobody expected
these waves and that explains the lack of politics in this direction of the European Union. This explains the
reactions of the border states of the European Union and of the Schengen space who decided to build feces
at their borders as if the Iron Curtain was not enough for more than half of century in the European history.
It was a very interesting reaction from the scholars perspective, but a very negative decision for the
civilized world represented by the Europeans.
Although the matter is nowadays discussed upon, it is fair to say that the migration has been far
neglected issue, because we thought that Europe does not represent a target for the migrants. This is
surprising due to both the seriousness of the issue and the ethical dilemmas it poses. Migration raises a
range of issues:
- We live in a world traced by injustices. Many people migrate because of poverty and oppression,
but are stopped at the borders of the rich nations in Europe or America. What are our obligations
towards the migrants? How is migration related to global justice?
- Migrants and refugees are vulnerable. They have lost their communities. What are the rights of
migrants and refugees? Whose obligation is to protect their rights?
- Fortress Europe has unfortunately become a reality. With surveillance, fences and barbwire Europe
tries to keep the migrants at a distance. But what are the moral obligations of the individual
European nations and of the European Union?
- Immigrants who have successfully entered Europe are often met with hostility and end up in
segregated communities. How should we face the ethical challenges of segregation and conflicts
based on religion and ethnicity?
- The unknown person, the different, the Other is often despised and persecuted. European history
shows plenty of evidence in this respect. How should minorities, for instance Roma people, be
respected and assimilated by the majority populations and by the state?
What we needed to understand is that the process of globalization is characterized by the mobility of
capital and the inevitable expansion of markets which has denationalized national economies and
territories, as well as decentred sovereignty. In current models of immigration three categories of causes of
migration are distinguished: the economic, political and cultural situations in both countries where the
migrants came from and the country of immigration. The process of globalization and the inevitable
expansion of markets, transportation, communication, capital and skills have challenged the geographic
hegemony of national governments and their borders. If there was a great debate in the 20th century with
regard to the flow of highly skilled, now there is resurgence with a different direction: qualified migration
is not necessarily regarded as being detrimental, labor markets are no longer viewed as national, but as
international and increase in non-permanent, circular migration between nations. These three trends are
mainly a result of modern ways of transportation and communication. We will treat in the following pages
some of these aspects in their evolution, for a better understanding of the other chapters which reflect the
challenges for the nation states.
1.1 Historical perspective on migration

If we are to speak about the history of migration we should make a small effort to understand that the
movement of persons is an ontological characteristic of the human being. Thats why we have to admit that
the history of migration begins with the origins of mankind, from where Homo erectus and Homo sapiens
spread initially into Europe and later into other continents. In the ancient world, Greek colonization and
Roman expansion depended on migration, and outside Europe significant movements were also associated
with the big empires of the history. The repartition of the population in the world was influenced by many
changes, as, for example, in the Roman Empire were made deliberately huge human mass deployments. 1
The economic development process of the certain countries determined and favored a broad territorial
population in different countries. This movement occurred, on the one hand, from the less developed
societies to the more economically developed ones, and, on the other hand, from the rich countries of the
1
This kind of politics remained a constant over the centuries in different parts of the world until nowadays.
2
Europe to another places and continents of the world. 2 Thus, the Global movement of the human groups
became an international phenomenon.
In the recent history (last two or three centuries), it is possible to discern a series of major migration
periods or events, according to migration historian Robin Cohen3. Probably the predominant migration
event in the 18th and 19th centuries was the forced transportation of slaves. The discover of America
determined a massive emigration to this New World, especially from Europe. The need of cheap working
forces on the south-American plantations determined the commerce with slaves, take from Africa. An
estimated 12 million people were forced from mainly western Africa to the New World-America, but also
in lesser numbers across the Indian Ocean and Mediterranean. Besides its scale, one of the reasons this
migration is so important is that it still resonates for descendants of slaves and among African Americans
in particular. 4 From Western-Europe emigrated about 30 million people to USA, 2 millions to Canada and
12 millions to Latin America.
After the collapse of slavery, indentured labour from China, India, and Japan moved in significant
numbers to continue working the plantations of the European powers. European expansion was also
associated with large-scale voluntary resettlement from Europe, particularly to the colonies of settlement.
Migration associated with expansion largely came to an end with the rise of anti-colonial movements
towards the end of the 19th century, and indeed over the next 50 years or so there were some significant
reverse flows back to Europe, for example, of the so-called pieds noirs to France.5
The next period of migration was marked by the rise of the United States of America (USA). Millions of
workers (about 12 millions) from Northern, Southern, and Eastern Europe6, went to the USA from the
middle of the 19th century until the Great Depression after the First World War.
The next major period of migration was after the Second World War, when labour was needed to
sustain the post-war economies in Europe, North America, and Australia. This was the period when many
Turkish migrants arrived to work in Germany7 and North Africans in France and Belgium. It was also the
period when about one million Britons migrated to Australia as so called Ten Pound Poms. 8 In his short
history on migration K. Koser underlines that during the same period decolonization was still having a
migration impact in other parts of the world, for example the Jews and Palestinians after the creation of
2
In this situation, the nation states are generating a kind of cooperation, join actions, to defend their economic interdependence
and integration; new cooperative bodies are created, some of which are supra-national (e.g. the European Common Market).
3
Robert Cohen, Global Diasporas. An Introduction, Routledge, 2008, p. 7.
4
Khalid Koser, International Migration, Oxford, Oxford University Press, 2007, p. 25.
5
Ibidem, p. 27.
6
There is a great number of Transylvanian Romanians who left the Habsburg Empire than to discover the New World or to earn
1000 dollars and the way back costs.
7
They came there as Gast-Arbeiter (Guest Workers) for reconstructing the country.
8
Khalid Koser, op.cit., p. 28.
Israel. The population of America and Oceania has in its majority a migration background. The entire
population of USA and Canada is said that have a foreign origin, because the Amerindians descendants
represent less than 4% of the nowadays population.9
By the 1970s the international migrant labour boom was over in Europe, although it continued into the
early 1990s in the USA. The engine-room of the global economy has begun to shift decisively to Asia,
where labour migration is, in contrast, still growing. 10 After the end of the Second World War, Western
Europe experienced a post-war reconstruction based on the Marshal Plan and not only. For meeting the
increasing labour demand, European countries recruited labour from developing countries, from their
former colonies and from Southern Europe. Many European countries experienced a great demand for
manual labor. Most o these unskilled laborers received a work permit on the basis of bilateral agreements
between the host country and the home country. Two very important consequences of migration must be
noticed concerning the massive presence of foreigners in Western Europe (because it is referred to, because
the communist regimes already existed in Central and Eastern part) as a result of the immigration in the
1960s and 1970s. The first one is the law of family reunification which stated that migrant workers were
allowed to bring their dependants to the host country. As a consequence of this law, the second aspect, the
decision of the migrant workers to become settlers in the host country has led to a process of their
integration which consists of different phases. These phases are in accordance with their option on a permit
to stay for a long time, naturalization, assimilation, integration while preserving their identity etc.
The movement of asylum-seekers and refugees and irregular migrants has also become increasingly
significant across the industrialized world at the end of the 20 th and the beginning of the 21st century. The
USA have about 20 millions immigrants, India has about 8 millions, Pakistan has 7,2 millions, France 5,8
millions, Germany has 5 millions and Canada has 4,2 millions. If we would go in another part of the world
and culture we should say that over 90% of the Arab Emirates population is formed by immigrants.
We can observe that is not simply to make the point that migration is not a new phenomenon which is
associated with significant global events. Migration has mattered through history, and will matter
significantly in this century.
1.2. The migration to Europe

There were three waves of migration to Europe after the Second World War. The statistics reveals the
developed states of the Europe provided for four centuries their own economical, political and cultural
9
Ibidem, p. 29
10
Ibidem.
4
values, so that in 20th century it can be easy noticed an obvious domination over the Europe and over the
largest part of the Globe. Obviously, the industrial activity in the North-West of the Europe led to a
supremacywithin global economy. We should admit the Europe has a territory occupying 2% of the Globe,
but the demographic and economical evolution registered an eventful and fast route. After the World War
II, the European space divided into two large politically and military block: the capitalist one and another
one communist. Shortly afterwards, these two forces entered what is going to be called The Cold War.
Within the space of the communist states the political parties, others than the communist, have been
eliminated from the political scene, the single party being considered the same thing with the state. The
citizens were deprived of rights and freedoms, including the internal market in other countries, the states
11
turning into real national prisons. Thus, the Western developed societies were strongly suppressed by
the immigration forces determined by above-mentioned situation and the fact that many people illegally
fled the communist states territory.
The first wave of postwar immigration, which unfolded from the end of World War II until the middle
to late 1970s, was defined and dominated by the mass movement of surplus workers from the less
developed countries of the Mediterranean (e.g., Greece, Italy, Portugal, Spain, Turkey, and Yugoslavia),
parts of Eastern Europe (e.g., East Germany and Poland), and, in its latter stages, select areas of the Third
World (e.g., Algeria, India, Morocco, Pakistan, and Francophone West Africa) to the major immigration-
receiving states of Western Europe. The primary catalyst of this wave was the onset of the postwar
economic boom, the greatest production boom in history 12, which created acute labor shortages and
rigidities in domestic labor markets. Immigration is especially believed by many to have resuscitated and
sustained the health of the major economies of Northwestern Europe, including the Benelux countries,
France, Switzerland, the United Kingdom, and West Germany. It is undoubtedly no coincidence that the
states with the highest rates of postwar labor immigration France, Germany, and Switzerland also
experienced the most robust rates of economic growth in Western Europe between 1945 and 1973.13 The
recruitment of foreign labour and the liberal issuing of residence and working permits came to the end with
the economic recession of 1967-1968 and the first oil shock of 1973. This is why the countries of Western
Europe enacted legislation for restricting the inflow of foreigners in the circumstances of the rise of
unemployment rates from the beginning of the 1970s. As shown already, the enactment of more restrictive
11
Adrian Otovescu, Romnii din Italia [The Romanians from Italy], Didactic i Pedagogic Publishing House, Bucharest,
2008, p. 37.
12
Anthony Messina, The Logics and Politics of Post WWII Migration to Western Europe, Cambridge University Press, 2007, p.
20.
13
Stephen Castles, Mark J. Miller, The Age of Migration: International Population Movements in the Modern World, New York,
Guilford Press, 1973, p. 76
immigration laws had the effect of compelling already existing migrants to settle permanently in Europe
under the circumstances of the concern of not being able to reenter Europe. In this way many labour
migrants, who had planned to stay just temporarily, transformed themselves into permanent settlers.
The second wave was represented by the asylum seekers during the Cold War period and by those after
1989. Because of the violent conflicts in their countries many refugees came to Europe. In this way, the
number of asylum applications in Europe was more than double between 1989 to 1992, from 320.000 to
695.00014. For a better understanding of the situation nowadays, the main destination was Germany,
followed by United Kingdom.
The third wave was represented by the migrants who came to Europe after 2000. By 2005, Western
and Central Europe had achieved a migrant population of 44,1 million migrants (approx. 7,6% of the total
population). Now, observing the ongoing phenomena we may probably say that there is also a fourth wave
of migration represented by those migrants coming from conflict countries like Syria, Irak, Afghanistan etc.
1.3. Theoretical and terminological aspects

The movement of people across national borders, referred to as international migration, is viewed as a
global challenge for the 21st century. Migration is a complex social, political, economic and juridical issue
that poses numerous policy challenges for even the most stable democratic states. In this way, the end of
the 20th century has been characterized by two contradictory trends controlling immigration on the one
hand, yet encouraging the mobility of capital and goods on the other hands referred to a dramatic socio-
geographical picture.
The interaction between the denationalising of key economic institutions and spaces, on the one hand
and the renationalising of politics on the other provides one of the main contexts for immigration policy
and practice today. We see a growing consensus in the community of states to lift border controls for the
flow of capital, information, services, and more broadly, to further globalization. 15 Yet when it comes to
immigrants and refugees we see the national state claiming all its old splendour and asserting its sovereign
right to control its borders, a right which is a matter of consensus in the community of states.
From a demographically outlook, the migration is defined as a territorial mobility form of the
population, joined by the changing of the common establishment between two well defined administrative
and territorial units. 16 In The Cambridge Dictionary of Sociology17, the area covered by migration is
14
Anja Wiesbrock, Legal Migration to the European Union, Martinus Nijhoff Publishers, Leiden, 2010, p. 22.
15
Ajaya Kumar Sahoo, Brij Maharaj, Globalization, Migration, Transnationalism and Diasporas. Some critical Reflections, in
Idem., Sociology of Diaspora, vol. 1, Rawat Publications, 2007, p. 2.
16
Camelia Badea, Migraia de revenire [Returning Migration], Lumen Publishing House, Iai, 2009, p. 23.
6
restricted, as a mobility spacial form which overcomes political borders, through temporal boundary for at
least one year of establishment changing. Although, all the migration forms are spacial mobility forms, the
reverse is not valuable. Regarding the spacial migration, we cannot define the political boundaries inside a
country ( speaking of the internal migration) or between two countries ( international migration). The
definition more commonly used to an international level towards migration is that issued by UNESCO
where the migration is regarded as a geographical mobility form, which by definition excludes the forms of
travelling on recreational purposes, business, medical or religious therefore they do not imply residency
changing.
The term migrant can be understood as any person who lives temporarily or permanently in a
country where he or she was not born, and has acquired some significant social ties to this country.
However, this may be a too narrow definition when considering that, according to some states policies, a
person can be considered as a migrant even when s/he is born in the country.
The UN Convention on the Rights of Migrants18 defines a migrant worker as a person who is to be
engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a
national. From this a broader definition of migrants follows:
The term migrant in article 1.1 (a) should be understood as covering all cases where the decision to
migrate is taken freely by the individual concerned, for reasons of personal convenience and without
intervention of an external compelling factor.
This definition indicates that migrant does not refer to refugees19, displaced20 or others forced or
compelled to leave their homes. Migrants are people who make choices about when to leave and where to
go, even though these choices are sometimes extremely constrained. Indeed, some scholars make a
distinction between voluntary and involuntary migration. While certain refugee movements face neither
external obstacles to free movement nor is impelled by urgent needs and a lack of alternative means of
17
The Cambridge Dictionary of Sociology, Cambridge University Press, p. 384-386.
18
Adopted by General Assembly resolution 45/158 of 18 December 1990
19
Under International Law, a refugee is defined as a person with a well-founded fear of persecution for reasons of race,
religion, nationality, political opinion, or membership in a particular social group. Based on this language, the refugee definition
is commonly understood to include three essential elements:
(1) there must be a form of harm rising to the level of persecution, inflicted by a government or by individuals or a group that the
government cannot or will not control;
(2) the persons fear of such harm must be well-founded - e.g. the U.S. Supreme Court has ruled that a fear can be well-founded
if there is a one-in-ten likelihood of its occurring;
(3) the harm, or persecution, must be inflicted upon the person for reasons related to the persons race, religion, nationality,
political opinion or membership in a particular social group (the nexus).
(see http://www.unesco.org/most/migration/glossary_refugee.htm, last seen 30.12.2015)
20
The displacement of people refers to the forced movement of people from their locality or environment and occupational
activities. It is a form of social change caused by a number of factors, the most common being armed conflict. Natural disasters,
famine, development and economic changes may also be a cause of displacement. See
http://www.unesco.org/most/migration/glossary_displacements.htm, last seen 30.12.2015)
satisfying them in the country of present residence, others may blend into the extreme of relocation entirely
uncontrolled by the people on the move.
The Special Rapporteur of the Commission on Human Rights has proposed that the following
persons should be considered as migrants:
(a) Persons who are outside the territory of the State of which their are nationals or citizens, are not
subject to its legal protection and are in the territory of another State;
(b) Persons who do not enjoy the general legal recognition of rights which is inherent in the
granting by the host State of the status of refugee, naturalised person or of similar status;
(c) Persons who do not enjoy either general legal protection of their fundamental rights by virtue of
diplomatic agreements, visas or other agreements.
This broad definition of migrants reflects the current difficulty in distinguishing between migrants
who leave their countries because of political persecution, conflicts, economic problems, environmental
degradation or a combination of these reasons and those who do so in search of conditions of survival or
well-being that does not exist in their place of origin. It also attempts to define migrant population in a way
that takes new situations into consideration.
Turning to the concept of migration, it is the crossing of the boundary of a political or
administrative unit for a certain minimum period of time. It includes the movement of refugees, displaced
persons, uprooted people as well as economic migrants. Internal migration refers to a move from one area
(a province, district or municipality) to another within one country.
International migration is a territorial relocation of people between nation-states. Two forms of
relocation can be excluded from this broad definition: first, a territorial movement which does not lead to
any change in ties of social membership and therefore remains largely inconsequential both for the
individual and for the society at the points of origin and destination, such as tourism; second, a relocation in
which the individuals or the groups concerned are purely passive objects rather than active agents of the
movement, such as organised transfer of refugees from states of origins to a safe haven.
The dominant forms of migration can be distinguished according to the motives (economic, family
reunion, refugees) or legal status (irregular migration, controlled emigration/immigration, free
emigration/immigration) of those concerned. Most countries distinguish between a number of categories in
their migration policies and statistics. The variations existing between countries indicate that there are no
8
objective definitions of migration. What follows is a more common categorisation of international

migrants:21
Temporary labour migrants (also known as guest workers or overseas contract workers): people
who migrate for a limited period of time in order to take up employment and send money home.
Highly skilled and business migrants: people with qualifications as managers, executives,
professionals, technicians or similar, who move within the internal labour markets of trans-national
corporations and international organisations, or who seek employment through international labour markets
for scarce skills. Many countries welcome such migrants and have special 'skilled and business migration'
programmes to encourage them to come.
Irregular migrants (or undocumented / illegal migrants): people who enter a country, usually in
search of employment, without the necessary documents and permits.
Forced migration: in a broader sense, this includes not only refugees and asylum seekers but also
people forced to move due to external factors, such as environmental catastrophes or development projects.
This form of migration has similar characteristics to displacement.
Family members (or family reunion / family reunification migrants): people sharing family ties
joining people who have already entered an immigration country under one of the above mentioned
categories. Many countries recognise in principle the right to family reunion for legal migrants. Other
countries, especially those with contract labour systems, deny the right to family reunion.
Return migrants: people who return to their countries of origin after a period in another country.
We should mention that migration is an important factor in the erosion of traditional boundaries
between languages, cultures, ethnic group, and nation-states. Even those who do not migrate are affected by
movements of people in or out of their communities, and by the resulting changes. Migration is not a single
act of crossing a border, but rather a lifelong process that affects all aspects of the lives of those involved.
Some of these aspects will be treated in these materials. Anyway, UNESCO organized a panel
discussion on Changing the Discourse: the Positive Face of Migration on 14 December 2015, at its
Headquarters in Paris, to commemorate Human Rights Day (10 December) and International Migrants Day
(18 December).22 This happened because many countries face rapid expansion of migratory movements and
are faced with integration of large numbers of migrants in their societies. This remains a real challenge
worldwide. Migrants inclusion enables to harness their enormous potential in any host country. The crisis
should be dealt with in a comprehensive manner, addressing both humanitarian and development aspects of
the root causes of migration. If migrant women and men are treated with dignity and are given the
21
See http://www.unesco.org/most/migration/glossary_migrants.htm (last seen on 30 December 2015).
22
ww.unesco.org (last seen 30.12.2015)
opportunity to fully develop, then this can have a positive impact on every aspect of life cultural,
economic, political and social.
Measures to restrict immigration have been largely unsuccessful and counterproductive. 23 In many
respects, borders breed uneven geographies of power and status.
There is a tendency all over the world to make the foreigner bear blame for others. Their different
appearances, their poverty, the life in slums, all render them suspect
In this given situation we may ask ourselves: What ish my nation? As asked the Scots officer
Macmorris, speaking a foreign tongue, of his Welsh colleague Fluellen in Shakespears Henry V.
Remaining in the same filed we may think also to the Ulysses of James Joyce, written between 1914-1921,
where a Dublin citizen of 1904 ask the ambiguously Jewish Leopold Bloom: What is your nation?24 And
through the answer, Bloom defined a nation as the same people living in the same place. This failed to
satisfy the questioner (a nationalist who bristles at the rule of the British Empire and envisions liberation
through a coming struggle in which a greater Ireland that includes the Irish diaspora will participate: Well
put force against force We have our greater Ireland beyond the sea. They were driven out of house and
home in the black 1847 Ay they drove out the peasants in hordes. Twenty thousand of them died in the
coffinships. But those that came to the land of the free remember the land of bondage.25
Shakespearss and Joyces querries about nationhood bracket the centuries in which European nations
forged themselves and their state apparatuses, even as they acquired colonies and empires. These projects
were intertwined: both employed military, technological, political and commercial strategies that extracted
an extraordinary human toll, violently expelling some conquered populations while confirming others to
fractions of their land: the reservation nations of Native Americans and the ethno-national republics of the
Soviet Union are among some of the products of such actions. 26 Elsewhere, the most monstrous and
sustained efforts of the western empires uprooted, killed or transported millions into slavery, creating the
African diasporas. Combinations of economic coercion and incentive encouraged the formation of overseas
communities such as those of Japanese, Indians and Chinese, which, like the African descended
collectivities, increasingly represent themselves to themselves and to the others as diasporas. Here may be
included also the new migration waves from the end of the 20 th century and the beginning of the 21 st as the
case of the Romanians.
23
Nowadays we are facing the importance of this aspect of restricting the migration inside the European Union by imposing such
strict rules and laws against this phenomenon by the countries for emigration (generally situated in the Western part of the
continent).
24
Khaching Tololyan, The Nation state and Its Others, in Ajaya Kumar Sahoo, op.cit., p. 22.
25
To the citizen, Irish emigrants in America are part of the Irish nation, and so Blooms answer has unacceptable implications.
26
Khaching Tllyan, op.cit., p. 21.
10
Some of the entities this history has shaped remain purely infranational, they endure within a particular
state and resist the cohesion imposed by it. Others are both infra- and transnational living their lives within
reduced territory while reaching out the kindred people elsewere (e.g. Moldavians, Armenians,
Palestinians, Hungarians in Romania, Romanians in Hungary or Serbia). The processes of uprooting and
dispersion continue, but many peoples had launched uprisings that heralded the possibility of remaking old
collectivities into new nations, while challenging the claims of existing states. What has emerged in the past
two decades, under the impact of new transnational, global forces, is the view that nation-states may not
always be the most effective or legitimate units of collective organization.
We must underline that multicultural colonial empires (Roman, Greek, Persian, Habsburg, Ottoman)
have existed since antiquity and some of phenomena characteristic of the nowadays transnational moment
are as old as history. In fact, migrations have led to a proliferation of Diasporas and to a redefinition of their
importance and roles. Crucially, these dispersions, while not altogether new in form, acquired a different
meaning by the nineteenth century, in the context of the triumphant nation state, which as a polity claims
special political and emotional legitimacy, representing a homogeneous people, speaking one language, in a
united territory, under the rule of one law, and, until now recently, constituting one market.
Returning to the terminology on migration and also to diaspora, in the specialty works, the
classification of migration forms is made following the next criteria: 27
- Spacially: internal migration, external, transnational and diaspora.
- Temporally: permanent/definitive, periodically temporary or non-periodically temporary
circular or transit and returning migration.
- By the relation between residency places: colonization migration, rural-urban, urban-rural, rural-
rural, urban-urban.
- The content of the changes realized by mobility/the type of activity:
o Economical migration:
For working purposes: commuting, seasonal migration, occasionally, border
migration or connected to a project
Regarding employment
For economical opportunities
o Dependent migration
- Of the migration units: individually, of the family
- Of the migrant status: legal migration, illegal, clandestine, expulsion migration
27
Camelia Badea, Migratia de revenire [Returning migration], Lumen Publishing House, Iasi, 2009, p. 23.
- Residual forms: for family reunion, forced, of women, expulsion migration.
All these forms do not represent exclusive categories, but they can turn depending on the context in
other types of migration or they can make combinations of those migration forms.
1.4 International migration theories

The migration theories have known a growing dynamics in the 60s when the problem of migration
approach in a structured and coherent form has been debated. This is why, in the specialty works, there are
specified three levels of approach: micro, mezzo and macro.
The approach of migration in micro perspective is useful especially in the studies over community
migration or case study migration, therefore, it offers the possibility to explore the motivations and
migration strategies of individuals and the mode of structuring the decisions in family migrations, as
analysis units. The approach from a mezzo outlook implies the establishment of the local context which
favored the migration and the effects that it produced at origin, being also an analysis frame of the
migration fluxes by networks and social capital evaluation.
The macro perspective allows you to understand the context of appearance and development of
migration phenomenon from the point of view of migration history, migration policies and national
selectivity. 28 We have to say that in this context, the economical theories are reductionist, approaching only
one dimension of migration (the economical one) and records only the experience of the individual in
relation with the destination country, where the individual receives financial support. The newer theories,
trying to approach totally the complexity of this phenomenon are incomplete and do not have a
methodological system adapted to this approach. Thus, passing from the economist theories to those
systemic was realized by changing the subject of the question Why? From the leaving motivation at certain
moments of migration process by searching answers for questions like: why and how migration fluxes
form? Why migrants prefer a certain destination country, when there are more countries with a similar
economical profile? Or how migrants networks formed?
This dynamic of migration theories is correlated with diversification, at least conceptually, of
migration types, and also of approaching outlooks, even knowing some new ones: ethnic and religious
enclave, demographic, feminist outlook, domestic, the one which seeks to explain the change, as well that
one which points the formation and functioning of the migrants networks, both physical and virtual. The
manner in which the migrant is seen as an economical actor, rationally orientated towards innovation,
diffusion and imitation of emigration patterns and behaviors corresponding to Romanian migration stages
28
Camelia Badea, op.cit., p. 30.
12
for working abroad, since this phenomenon appeared (beginning of 90s of the last century), until the
moment of the institutionalization of those practices. Although, the migrants rationality to maximize his
income cannot function in the international migration where it appears the influence of ecological factors.
They tried to give the explanations from the perspective of the cumulative causality theory and
transnationalism.
The cumulative causality explains from the mezzo outlook the persistence of migration fluxes to
one country or another, but it does not present how these fluxes are forming, but it begins from the
approach of migrants networks towards self-sustaining networks and which highlight the cumulative
causality of migration, determining the formation of a so-called migration culture at origins. At a micro
level, the cumulative causality targets the changes produced in the life-style of the emigrant and of the
family affected by migration.
Observing what happened in the world and interpreting it in the context of 21 st century, if we place
the transnationalism in the context of the macro-structural changes occurred in time in what concerns
migrant practices, of the emigration and for emigration state policies, it appears in equation a new larger
phenomenon: the globalization.
When globalization is seen not as a narrative of complete domination but as a narrative of

empowerment as well as subjugation, the pathway is paved toward a broader comprehension of multiple
and multifaceted processes that at times collude and at other times collide with each other. The
transnational paradigm situates migration centrally in these dynamics whereas the classic paradigm of
immigration and settlement serves primarily to sideline them.
THE LEGAL BASIS REFERRING TO IMMIGRATION TOWARDS EU
Emanuel Tval
The migration in the concerns and legislation of the European Union
Beginning with the Treaty of Amsterdam (1999), the member states have established a legal basis for
creating a new common European immigration policy inside liberty, security and justice zone (art. 61 of EC
demands the adoption of some measures for progressively establishing a liberty, security and justice zone).
Since then, the UE legislation regarding immigration and afferent policies have developed in the multi-
annual programs (five-year programs). These programs have been adopted by the European Council, which
draws the political priorities and formulates the concrete objectives for developing the legal basis
established by treaties. The first five-year program from which we have to start an analysis referring to the
EU legislative policy regarding the migration has been adopted at Tampere in October 1999.
The Tampere Program has been replaced in November 2004 with the Hague Program,
corresponding to 2005-2009 period, followed by Stockholm Program (2010-2014), adopted at the end of
2009 under Swedish presidency of EU.29
The programs of Tampere and Hague are different regarding the outlook and approach for creating a
space of freedom, security and justice. The European Council of Tampere has established an ambitious
program of policies, based, in principal, on the residency right of the citizens from third party countries. An
European Commission release regarding the community immigration in November 2000 30 reflects the fact
that the political atmosphere of Tampere, especially the one reflected by immigration policy of EU should
reveal that the immigrants benefit of the same rights and obligation as the EU citizens 31 and that the steps in
29
See, Anja Wiesbrock, Legal Miration to the European Union, Martinus Nijhoff Publishers, Leiden-Boston, 2010, p. 5
30
COM (2000) 7575 final, 22nd of November 2000.
31
Anyways, in this sens the Commission revealed that the purpose of the rights the third party countreis citizens benefit of may
be different according to the duration of their residence. This position has been strongly nuanced after the immigrants wave in
2015 and the difficulty that the EU had while passing through the crisis generated by them.
14
the societies they reach as an essential corollary of the admission policy. 32 In this way, the Commission
proposed the adoption of five directives regarding the stay right of different categories of emigrants,
mostly, family members, people with a long residence, students, researchers or businessmen. The difficulty
of promoting such directives have been rapidly observed, when, in 2001 the directive regarding the right to
work and when there has been noticed the difficulty of negotiating the remaining 4 directives. Finally, the
Title IV of TFEU illustrates the increased retention of member states towards decision assignment in very
sensitive zones like aspects regarding the conditions of entering and residence of people from other
countries.
In comparison with The Tampere Program, the Hague Program33 of 2004 was much more restrictive
and underlined the security questions. This in the context of the events of 11 th of September 2001 which
determined a change of political climate in the member states. We must say that the events of World Trade
Center can be seen as a cause of the change, but in the same time, at European level, we must say that there
were factors in every country leading to the change of vision. Here is to remember the appearance,
evolution and murder on 6th of may 2002 of Pim Fortuyn in Netherlands, for instance 34. That is why, the
Hague Program underlines specially the importance of state control and national security, the Program
being based in this way on terrorism combat, borders control, fighting against illegal immigration and
human trafficking. This opinion is easy to notice at the level of the EU and of political leaders after the
attacks in France or the aggressions against Koln population at the beginning of 2015.
The hesitation of the member states to transfer competences from the immigration area to the
community decisional level became visible once again in December 2004, when the
European Council decided to apply the procedure of a common decision (art. 254) for all the fields of
migration covered by the Title IV of TUE, except the legal migration.
Among its major provisions, the Hague Program seeks to develop: A common European asylum
system with a common procedure and a uniform status for those who are granted asylum or protection by
2009; Measures for foreigners to legally work in the EU in accordance with labor market requirements; A
European framework to guarantee the successful integration of migrants into host societies; Partnerships
32
The Commission underlined that the integration policies must follow the immigrants acceptance. This thing has been revealed
because the two steps have been reversed, the integration measures being used as reasons for refusing the acceptance of the
citizens from other states on the teritorry of a member state of the EU.
33
The Hague Program. Strengthening the freedom, security and justice iin the European Union OJ C53/1, on 3rd of March 2005.
34
He was a representative of the radical right Leefbaar Nederland, professor at Rotterdam, militant for the gay rights and with
an anti-islamic opinion very trenchantly expressed in his book against the islamisation of our culture (1997), which created him
a very bad image for immigrants, being murdered by a militant of political left.
with third countries to improve their asylum systems, better tackle illegal immigration, and implement
resettlement programs; A policy to expel and return illegal immigrants to their countries of origin; A fund
for the management of external borders; Schengen Information System II (SIS II) a database of people
who have been issued arrest warrants and of stolen objects to be operational in 2007; Common visa rules
(common application centers, introduction of biometrics in the visa information system). 35
The Stockholm Program has been adopted in December 2009 during the Swedish presidency of the EU. 36
It has been intended the prioritization of the interests and needs of citizens and other people towards which
the EU has responsibilities. Moreover, the need to realize a balance between respecting the fundamental
rights and liberties and the European security concerns, has been underlined. The program also underlines
the importance of adopting some coherent and coordinated measures in the field of justice and Interior.
Referring to the direction and future priorities regarding the juridical regulation of migration, the
Stockholm Program is less clear in its 82 pages compared to the two previous programs, leaving a lot of
questions without answer. The Council requested to the European Commission to present an action plan
targeting the implementation of the program in the first 6 months of 2010.
If the three multi-annual programs regard a general background at European level, in the field of migration
we must specify the five directives pointing the legal migration.
Directive 2003/86/EC regulating the family law at reunification
Directive 2003/109/EC regulating the problem of long duration residence

Directive 2004/114/EC over conditions of acceptance for students, pupils, unpaid trainers and voluntaries
Directive 2005/71/EC over the specific of the acceptance of researchers in other countries.
Directive 2009/50/EC over entering and residence conditions for employment purposes of a well-qualified
personnel of the citizens from other states.
35
Anthony Messina, The Logics and Politics of Post WWII Migration to Western Europe, Cambridge university Press, 2007, p.
146.
36
The Stockholm Program: An open and secure Europe which servesand protects its citizens, December 2nd 2009, 17024/09.
16
What reveals from the Tampere Program and is willing to be promoted by every specified program and
directive is a fair and equitable treatment towards migrant people from other states to the European Union.
This concept has been included as a political objective in the article 79 of the Treaty of Lisbon and it is
rather vague and open to divergent interpretations. The Tampere Program does not offer any concrete
definition for the term, but it can be deduced from the objective of the policy formulated in the program,
according to which there are some component elements which are part of the general objective which is the
fair and equitable treatment.
The European requested a more vigorous development of the integration policy which should target the
guarantee of residents lawfulness from other states by rights and obligations comparable with those of the
EU citizens. It is mentionable that in the Tampere Program, the integration concept is used in a more
favorable and inclusive way than in the documents recently issued by Community forums 37 , where the
obligations of the immigrants towards host state, are underlined.
2.2. Migration to Europe
Indeed, as stipulated in the five-years frame programs, the migration phenomenon which determines the
possibility of some legal debates about diaspora must be understood in historical context. For a better
understanding, we can realize an analysis of European laws and policies since World War II until the XXIst
century.
2.2.1. Migration to Europe after 1945
Since World War II, the territory of the member states of the European Union represented a veritable El
Dorado for many people. We have to say that until 1950, the European space has been the principal
emigration space, almost 70 million Europeans emigrating between 1750 and 1960. Between 1950 and
1990, the population of outside the 15 member states of the European Union, plus Switzerland and
Liechtenstein, increased four times from 3.7 million (1.3% of the population) in 1950 to 16 million (4.5%
of the population) in 1990.
37
See, for instance, the documents issued in this way by the EU Council of November 19th 2004; the European Commission
release, A common agenda for integration- the background for integration of the citizens of other countries in the EU, COM
(2005) 389, 1, September 1st 2005; EU Council on justice and internal policy- 2807, Press release 10267/07, 12-13 June 2007
asf.
Migration to and in Europe can be divided (hardly) in four stages:
1. Post-colonial migration and migration in lucrative purposes (1945-1975), ex. Gastarbeiter38 in

Germany
2. Migration ending on lucrative purposes and the beginning of migration for family reunion (starting
with 1975)
3. The increase of the number of those who asked for political asylum in the 80s of last century
4. An increase of the work migration especially in the sectors where there were needed well qualified
specialists, at the end of the 90s39
In the years 50-60 of the previous century, Europe has passed through the priod of reconstruction after
WWII, and for this reason, the western European states, especially, were forced to recruit workforce from
the developing countries, mostly from their former colonies and from the south-east of continent.
Recruiting workforce from other countries and offering work and residence permits has reached the
final at the same time with the economic recession of 1967-1968 and with the first problem of the oil crisis
in 1973. In this period, the western-European countries have issued laws restricting the afflux of foreign
workforce. The main reason of this legislative initiative regarding the laws regulating the migration was
determined by the increase of the unemployment rate in this countries beginning with the 70s. In some
countries, the increasing pressure from the unions requesting restrictions regarding immigration added to
the problems abovementioned, the migration being perceived as connected with the increase of the
38
The guest worker myth was a myth in the specific sense that, of the seven major immigrant-receiving states, only Austria,
Switzerland, andWest Germany ever attempted to organize and implement a true guest worker program. See more in Tomas
Hammar, Immigration Regulation and Alien Control in Tomas Hammar (ed.), European Immigration Policy: A Comparative
Study. Cambridge University Press, 1985, p. 250. Actually, such a program was defined by the scholars (see Anthony Messina,
op.cit., p. 24) as a coercive policy by the state to rotate individual workers into and out of the domestic economy according to a
regular, predefined schedule. In such a system, work permits are issued by governments to foreign workers for a specified time
period, allowing their employment in particular firms or sectors of the economy. In these circumstances, foreign workers cannot
expect that their work permits will be indefinitely renewed. Moreover, there is very little opportunity for foreign workers to alter
their conditions of residential settlement once they have entered the host society
39
H. Schneider, Towards a European Migration Policy: from Maastricht to Amsterdam, from Tampere to Hague, in H.
Schneider, Migration, Integration and Citizenship. A Challenge for Europes Future, 2005, vol. II, p. 7-34, here p. 14.
18
unemployment rate and with the decrease of people salaries in the respective country. Also, we should not
forget the fact that this increase of the emigrants number from a society raised concerns also regarding the
aspect of the lower and lower social cohesion that a large number of emigrants might generate. Being very
restrictive, the legislation which restrained the migration possibility to Europe determined the people
already present here to remain here, and their leaving will not be taken into consideration any more. The
concern that they will not be able to return after their leaving, determined many to turn from temporary
residents into permanent residents.
The instable political and economical situation from some of their origin countries had an important
role in taking the decision to remain for good in Western Europe countries. This decision to remain for
good attracted the increase of emigrants families which, using the current legislation has invoked the right
of family reunion to bring all family members. In this way, the European governments began to make
efforts in order to stop the entering of the family members of those already established and to encourage
repatriation, these efforts being useless because they were forbidden by national courts.40 As a
consequence, in the 80s, the number of foreign residents increased in Germany with over 800.000 and with
200.000 in UK or Netherlands.41
Alongside the emigrants already integrated on the labor market or who wanted this thing, and their
families, also occurred the category of those who requested political asylum, coming from the former
communist bloc. The number increased very much in the 80s, in order to reach an absolute maximum in
the year 1989.
As a consequence of the conflicts occurred in Balkans, in the Near East or in other parts of the
world, took birth the category of refugees, which is the second emigration source to Europe after 1990. The
number of those who requested political asylum in Europe doubled between 1989-1992 from 320.000 to
695.000. The number of those who requested political asylum in the two countries in the top, Germany and
UK, has increased from 73.832 to 322.600, respectively from 5.900 to 28.500 between 1985-1993. 42
40
In 1978, The Constitutional Court of Germany established that the wife should have been married for at least three years
before submitting the request for family reunion. This is a violation of art. 6.1 of German constitution. In France, the State
Council blocked a bill regarding family reunion issued by the French Government which forbad entering end staying for all
family members that wanted to integrate then on the labor market.
41
S. Dearden, Immigration Policy in the European Community, 1997, p. 6.
42
R. Hansen, Migration to Europe since 1945: Its History and its Lessons, 2003 in Political Quarterly, vol. 74, suplim. 1, p. 35
By the year 2005, Central and West Europe had a total migrant population of 44.1 million, representing
7.6% of the total population. Between 2006-2007, the migration towards the 27 states increased with
16.4%, being added 1.9 million citizens.
In 2007, the official migration towards EU had 1,907 million people being the principal source for
demographical increase in EU. Actually, in 2007 the EU population increased with 2.4 million habitants,
43
representing in total 4.8% increase. 80% of this increase is due to migration and only 20% to births. We
have to underline the fact that only in 2007 and only in Netherlands among all member states there has
been a natural growth of population by children births, while in the other countries the growth was due to
children births, but not resolutely. 44
According to the Eurobarometer, the population of Europe on 1 st of January 2007 was of

495.090.300 habitant, being registered 5.266.100 births, 4.782.300 deaths. It results a number of 483.800
natural changes and 1.907.600 emigrants, at the beginning of 2008 being registered a population of
497.481.700, growth due to emigrants.
Concerning the origin countries, most of the emigrants come from European countries (14%) and Asia
(16%), followed by America (15%), Africa (13%) and Oceania (2%).
43
This was one of the biggest increase, compared to 4.4% in 1960 and 4.3% in 2006.
44
Denmark and Sweden, for instance, have known a population growth only because of the migration, and in Germany,
population is decreasing becasue of the reduced nimber of births.
20
The origin countries
EU 27 39%
Non EU 14%
Asia 16%
America 15%
Africa 13%
Oceania 2%
Altele 1%
Source: Eurostat
2.2.2. Case study: Germany
Post-war migration to Germany can be shared in four steps: firstly the come-back after the war (1945-
1954), then the manpower recruitment (1955-1973), thirdly the consolidation or migration slowing (1974-
1988) and fourthly, after 1988 the socialism dissolution and the consequences that coursed over here. On
this four steps can be added a fifth one, namely the attraction of large migrants masses well specialized in
various domains.
In the first five years after the completion of World War II, Germany received approximately 8 million
German ethnicity persons from the East of Europe (although there are some voices that are speaking about
12 million refugees and deportees from the areas that are controlled by allies, between 1945-1950).
However, a 4 million German ethnicity population has remained in Central and East Europe, although
many of them wanted to move in Germany. This was not possible because of the restrictive legislative
measures of the states from Central and East Europe where emigration was possible only in the case of
family reunion. Between 1951-1960 we have to mention the population movement between the East to the
West of divided Germany, movement that determined the building of Berlin Wall in the year 1961.
Second phase, between 1955-1973, was the migration period in lucrative purposes (word migration). The
fast economical come-back of Germany after World War II and the fiscal reform from 1948 determined a
growth of work market request which cannot be longer satisfied only with the internal market offer. Thus,
from the ending of fifties Germany started the recruitment of workers from abroad. In 1955, Federal
Republic signed a treaty with Italy in this war, thereupon were made similar treaties with Spain, Greece,
Turkey (1963), Morocco (1964), Portugal (1965), Tunisia (1968) and the former Yugoslavia. Following
these treaties in Germany appeared approx. 28 million workers, whereof approx. 8 million where
established in Germany definitively in 1995. The biggest share between these workers (germ. Gastarbeiter)
was owned by the Turks (23%), followed by Yugoslavians (18%) and Italians (16%) 45.
The guest workers model represented a temporary work migration scheme. Foreign workers should return
into their origin country after a period of time. Controlled by the rotation principle46, the politics that deals
with migration were charged as a mechanism which regulates, actually, the labor market. The rotation
principle presumed that the work force represented by the migrants can be changed with young guest
workers and with work capacity in the conditions of German law. 47 The immigrants were allowed to stay in
Germany as long as their work capacity was needed and in the case of a economical decline they were
obliged to leave the country, this could be observed during the Economic Recession from 1967/8 when a
great number of guest workers came back to their origin country, thinking about returning after the crisis
conclusion. In 1972, Germany signed a bilateral treaty with Turkey which provides some benefits for those
who will return in their origin country, especially financial help for these persons.
Still from the seventies was found that, despite of economical decline, the number of immigrants workers
was still rising. Oil crisis from the beginning of seventies and the fears related to economic and social
consequences for the migrant population led to the promotion of a law that stopped the work immigration at
23 November 1973.48 At this date, 14 million people entered Germany and 11 million Germans left
Germany from different reasons. However, at the beginning of the seventies, Germany has already
transformed into a immigration country49, although this thing was denied by the political power and even
by the German society.
Thus, was reached to another stage, the one related to migration decline toward this country. In this way, if
in 1973 Germany received 869.109 immigrants, their number was barely 541.121 last year and only
45
Anja Wiesbrock, Legal Miration to the European Union,Martinus Nijhoff Publishers, Leiden-Boston, 2010, p. 109
46
Term placed in use by Hans Fillbinger, president of Landului Baden-Wuertemberg
47
D. Traenhardt, Inclusive of exclusive: discoursen overmigratie in Duisland, n Migrantenstudies, nr. 18, p. 225-240.
48
This decision was not relied on information to show that hiring imigrants in different zones of german industry led to growth
of unemployment or to deprivation of jobs of german population between the years 70 and 80 of last century.
49
From this point, untill nowadays we can split the countries into emigration and immigration states
22
366.095 in 1975. However, from 1973 the immigration towards Germany grew under another form, the
form of family reunification and from the appearance of those who ask for political asylum and the
refugees. In this situation, between 1973-1980 were approximately 3 million new people onto the territory
of Germany. If it is to compare the available information, we can say that between 1996-2014 were granted
between 56.000 and 85.000 visas for the citizens who asked to enter on Germany territory for family
reunification. A big part of applications came from Turkish citizens.
The fourth phase of migration started on the same time with the falling of socialist block and once with the
desires appearance of German ethnicity from the former socialist block to come back in their origin country
(closer or lost origin). Those were characterized as Spaetaussiedler (those who came home later) and not as
immigrants, reason for which they enjoyed a different standing position and appreciation among the
population and the german society, being counted as german citizens in the way provided by the federal
fundamental law through 116 article.
Those who asked for political asylum appeared after the collapse of the Iron Curtain and the reunification
of Germany. However, until 1992, Germany transformed into the main immigration country from Europe,
receiving annually aprox. 483.000 asylum applications. This thing was due to a easier asylum grant
legislation especially after the legislative reform in 1993. 50
Year 2002 was the starting year for decreasing of immigrants number, this thing was owed to legislative
reform from year 2000 regarding the german citizenship, through was introduced that element called ius
soli51 regarding to german citizenship. In 2003 in Germany already were 7.33 millions foreign citizens,
representing 8,9% from population. In 2006, the number of foreign citizens was about 6,75 millions,
namely 8,2% from population.
2.3. Comunitary Aquis reffering to migration of the citizens from the third party states
When we discuss about the legal base of citizens treatment from the non-member states of UE, inside of
Union we can distiguish five citizens categories.
50
Before the reform of 1993, every person suffering political persecution in the country of origin was entitled to request and
receive political asylum in Germany according to article 16 par. of German Constitution.
51
One of the two systems of citizenship gaining (alongside ius sangvinis) which defines the nation as the population of a certain
territory, no matter the ethnicity, language or religion. According to this principle, the citizenship of a state is gain automately by
birth on the territory of that state.
The first category of privileged citizens is represented by the citizens family members from the states of
UE which have residency into another state member, which returned from another state member or carrying
a border economical activity. In such cases, who imply a
The second category regards the citizens of other states who have a certain nationality and benefit of a
preferential treatment according to treaties and partnerships signed between EU and the origin states.
The third category contains the citizens of other states which have the residence right in EU, except UK,
Ireland and Denmark and whose situation is regulated by the four above mentioned directives.
The fourth category regards the family members of the EU citizens who did not use their right of free
circulation.
The fifth category, refers to the citizens of other states who have residence right in Denmark, Ireland or
UK.
The fifth category, refers to the third party states citizens who have residency right in Denmark, Ireland or
United Kingdom.
In the last two categories, the citizens situation is exclusively regulated by national law of residency state,
as long as the fundamental rights and human rights are respected.
Members of the citizens family from the third party states who worn their free circulation right.
These people that moved or came back from another state member are considered to be privileged, having
in mind that their community law situation is regulated, moreover than the national one. Meanwhile the
state members kept a zone larger enough in what concern the own regulations providing the allowing on
their territory and the residency of those who came from third party states, the free circulation of UE
citizens represent a individual law, reducing the states regulation power to its minimum. 52
Here intervenes the problem related to citizens family members rights of the Union that are not citizens of
any state member, if their situation is related by the relation with a Union citizen. The citizen concept of
Union is defined by the art. 17 from the European Council so as the art. 2.1. of Directive 2004/EC, which
sets forth that the union citizenship is owned by every person that has the nationality of a state member.
52
See, M. Condinanzi, A. Lang, B. Niscimbene, Citizenship of the Union and Free Movement of Persons, 2008, p. 77.
24
European Court said in the Kaur 53 cause and in the Micheletti54 cause that from the perspective of the
international law every state has the possibility to establish the acquisition conditions and nationality loss.
Moreover, as shown in the Micheletti cause, a person that has double citizenship, one of them being of a
non-UE state, must be accepted as UE citizen for the cause that have in mind the prosecution of guaranteed
freedoms through treaties. A state member, a different citizenship than the main one that a person owns, in
which the person intends to move, cannot restrict, imposing supplementary conditions, the effects which
having a nationality of a state member generates.
Art. 18 of European Council include the Union citizens right to the freedom of movement and free
indwelling on the territory of state members. In the case of Baumbast55, Grzelczyk56 and Garcia Avello57,
the European Court rised the Union citizen status as being a fundamental status that those who own it must
have the nationality of a state member.
European Court of Justice developed a concept of social citizenship, aborting the distinction between
economically active citizens and the economically non-active citizens. 58
The rights of the members of the families of the EU states citizens, who are citizens of other countries and
used their right of free circulation are regulated by Directive 2004/38/EC 59 and for those who work and
their family members there are stipulations in the regulation EEC No. 1612/68.
2.4. Migration in the context of the EU Principles of Law and International Private Law
All legal provisions already mentioned already in respect of third country nationals adopted at the national
or union levels must be in accordance with the fundamental rights and the EU principles of law. A major
source of fundamental rights in the EU is the Charter of Fundamental Rights.60 The Charter was used by
the ECHR as a source of fundamental principles of Community Law in some cases. According to Article
53
Case C-192/99 Kaur (2001) ECR I-1237, par. 19
54
Case C-369/90 Micheletti and others (1992) ECR I-4239, par. 10
55
Case C-413/99 Baumbast and R. (2002), ECR I-7091, par. 82.
56
Case C-184/99 Grzelczyk (2001), ECR I-6193, par. 31
57
Case C-148/02 Garcia Avello (2003) ECR I-11613, par. 22.
58 58
See the next cases: C-184/99 Grzelczyk (2001), ECR I-6193, C-209/03 Bidar (2005) ECR I-2119, C-138/02 Collins (2004)
ECR I-2703, C-456/02 Trojani (2004) ECR i-7573. As bibliography, see: K. Hailbronner, Free Movement of EU Nationals and
Union Citizenschip, in R. Cholewinski, International Migration Law. Developing Paradigms and Key Challenges, 2007, p. 317-
320.
59
The directive provides the rights of Union citizens and their family member to circulation and residence in the member states,
JO L 158, of 30th of Aprilie 2004, p.77
60
Was proclaimed and signed by the European Parliament, the Council and the Commission on the 7th of December 2000 in
Nice.
5.1 of the Charter, the provisions apply to the EU institutions and the Member States when they are
implementing Union law. In the next paragraph of the same article 5 it is stated that the Charter does not
modify or create any new powers or tasks for the Community or Union. If there are any limitations, they
must comply with the principle of proportionality. The Charter contains several rights (which are similar to
those contained in the ECHR) that are relevant to third country nationals residing in a Member State.
Article 3 of the ECHR is article 4 of the Charter and it provides that no one shall be subjected to torture or
inhuman or degrading treatment or punishment. Article 6 grants everyone the right to liberty and security of
persons and article 7 refers to the right to respect for family life, home and communications.
The Charter contains a separate chapter on equality which in itself can be seen as a proof of the improved
status of equal treatment as a fundamental right of the EU.61 However the value of the Charter as a legal
basis for non-discrimination claims of third country nationals is limited by the fact that discrimination on
grounds of nationality appears to be excluded from the broad scope under the Charter. Any derogations
from the Charter rights must comply with the principles of legality, proportionality and necessity.
Conditions under national or Community law may be imposed upon, inter alia, the right to conduct a
business, the right to collective bargaining and the right to social security. 62
Article 15 of the Charter grants everyone the right to engage in work. Whereas EU citizens are given the
freedom to seek employment, to work and to exercise the rights of establishment and services, third country
nationals must be authorized to work in the territories of the Member States and are merely entitled to
working conditions that are equivalent rather than equal to those of Union citizens.63
The EU fundamental rights and general principles of law are represented by the unwritten law of the
Community, a number of principles that the Court relies upon in its judgment, even though they are not
explicitly spelled out in the Treaty. According to Art. 220 EC, the Court of Justice shall ensure that in the
interpretation of the Treaty, the law is observed. Art. 230 deals with judicial reviews of Community
measures and establishes jurisdiction of the Court in the case of, inter alia, infringements of the Treaty or of
any rule of law relating to its application.
As we may easily think, the EU general principles of law are derived from a variety of sources like the
Community Treaties, the legal systems of the Member States and international treaties. The general
61
See for example the situation in Romania, presented in Calina Jugastru, International Civil Litigation. Realities and
Perspectives, Symphologic Publishing, gatineau, 2014, p. 209.
62
Anja Wiesbrock, op.cit., p. 168.
63
Ibidem.
26
principles of EU law can broadly be divided into four categories. 64The first comprises general principles of
administrative and legislative legality, such as procedural fairness, equality and non discrimination, legal
certainty and legitimate expectations and proportionality. The second refers to general principles based on
the fundamental freedoms of the internal market. The third category is still new and based on the
developing political rights of the EU citizens (for example the principles of democracy and transparency).
The fourth category is the one of fundamental rights. In this way in the case 11/70 Internationale
Handelsgesellschaft ECR 1125 the European Court of Justice confirmed that the respect for fundamental
rights forms an integral part of the general principles of law.
The rights to non-discrimination and equal treatment are of great importance for our theme. The fight
against discrimination focused mainly on discrimination based on gender and nationality. Prior to the entry
in force of the Treaty of Amsterdam, Community action in the fields of nationality and sex discrimination
could be based on article 12 and 141 EC. The issue of race discrimination was for many years neglected
and not explicitly covered by any legal provisions. Thats why in the 1990s the European Commission and
the Council started to enact a number of non-binding soft law measures in the field of racism and
xenophobia, such as declarations and non-binding statements.65
An even more tribute to the above mentioned principles was represented by the insertion into the Treaty of
article 13 EC which establishes the fight against discrimination as a principle for EU policymaking and
providing a basis for the EU institutions. The Directive 2000/43/EC was adopted in June 2000, less than a
year after the entry into force of the Treaty of Amsterdam. It was followed by the Directive 2000/78/EC
and in 2004 the Council adopted a new Gender Equal Treatment Directive (2004/113/EC). The first
mentioned directives were primarily inspired by the promotion of equality as a fundamental human right.
These two directives have both preambles in which is made a reference to a number of international human
rights instruments recognizing the universal right to equality before the law and protection against
discrimination.
64
Ibidem, p. 170.
65
See M. Bell, Anti-Discrimination Law and the European Union, 2002; D. Schiek, A New Framework on on Equal Ttreatment
of Persons in EC Law, in European Law Journal, 2007.
SOCIOLOGICAL PERSPECTIVE ON MIGRATION AND DIASPORA
Emanuel Tval
From the sociological point of view the question is on how immigrants are incorporated into new
countries. In Germany and France, scholars expectations that foreigners will assimilate is a central piece of
public policy. In the United States, immigration scholars initially argued that to move up the socioeconomic
ladder, immigrants would have to abandon their unique customs, language, values and homeland ties and
identities. Even when remaining ethnic became more acceptable, most researchers assumed that the
importance of homeland ties would eventually fade.66 To be Romanian-American or Italian-American
would ultimately reflect ethnic pride to an ancestral land. It is not the case in Europe where we are speaking
about old civilizations now gathered under different traditions and histories with their own clear borders. It
is actually about ways of being and ways of belonging. The following example will make things clearer:
There is for example the case of the school Corrado Meloni from Ladispoli (Italy) where study
941 children out of which 182 are Romanians. In the city of Ladispoli there live 42.000 people out of which
5000 are Romanians.67 As a following of an Agreement between the Italian and Romanian governments the
school had to introduce Romanian classes free of charges and as a compulsory discipline. The Romanian
parents disagreed with this discipline as part of the curricula and said that they would like English instead
of Romanian.
When people belong to multiple settings, they come into contact with the regulatory powers and the
hegemonic culture of more than one state. These states regulate economic interactions, political processes
and performances, and also have discrete nation-state building projects. Individuals are, therefore,
embedded in multiple legal and political institutions that determine access and action and organize and
legitimate gender, race and class status. Most migrants move from a place where the state has relatively
little power within the global interstate system to a more powerful state. At the same time, many migrants
gain more social power, in terms of leverage over people, property and locality, with respect to their
homeland than they did before migrating. It is this complex conjuncture between personal losses and gains
that any analysis of power within transnational social fields must grapple with. Furthermore, migration
often opens up the possibility for transnational migrants to contribute, both positively and negatively, to
changes in the global economic and political system. For example, long distance nationalist movements
66
Peggy Levitt, Nina Glick Schiller, Conceptualizing simultaneity. A Transnational Social Field Perspective on Society, in Ajaya
Kumar Sahoo, Brij Maharaj, Sociology of Diaspora, vol. 1, Rawat Publications, p. 156.
67
http://www.gazetaromaneasca.com/observator/observator/prim-plan/qnu-vrem-nici-gratis-cursurile-de-limba-romanq.html
(last seen on 31 December 2015)
28
have long influenced nation building and national transformation. I would mention here the 1848
Revolution, under the influence of all other such movements on European level, but especially under the
influence of the Romanian students abroad. This movement was, in European context, the beginning of
creation and modernization of the future Romanian state under the western ideas of the students. In these
circumstances, migrants can influence the internal functions and future of states as well. They may pressure
states to institute a special type of legislation that preserve traditional values. Acting within their
transnational social fields, migrants may fuel movements for different rights, for social justice etc.
Transnational migrants also shift power by redefining the functions of the host state. There may be
invoked many examples in which migrants have successfully mobilized host country legislature to support
their homeland projects. There may be presented the cases of Kosovo or Serbs for the end of the 20th
century as well as the people of Kurdistan who are very well represented in Germany politics for example.
It is obvious that we may face the same situation in the Syrian case or other conflicts from Middle East if
the migrational waves will continue to the European countries. After a while there must be take political
measures as well in direction of solving the situation which determined the waves of migration. Of course
that, if there will be the case, the new political powers form the home lands will have to take into account
the opinions of those who will be, till than, members of the host countries societies.
The trend towards increased international migration appears to result from the globalization process
in combination with the income gaps between different countries. There exists a direct link between
poverty and migration. Unexpected disasters, revolutions and civil wars do determine the populations to
move. In this situation we may ask ourselves if the European policy in order to ask Turkey to offer to the
migrants a better situation, with the financial help of the EU, would be enough or not. In these
circumstances of the 2015-2016 migrational waves it is not enough. Destination countries can and should
contribute to the management of migration through cooperation with source countries in combating the
causes which determined the migration, such as discrimination or war (see the case of Syria).
3.1. The crisis of identity in the modern societies Antigypsism problems

We are facing here a problem of national identity, which goes hand in hand with the historical
process of formation and differentiation of the nations during the 20 th century. Even if it was thought to be
overrated after the fall of communism it became very present in the countries of Central and Eastern
Europe. The globalization and its evaluation only from the negative, destructive influence it was seen,
determined new debates on the theme of the reports between national and universal, between identity and
diversity, between ethnicity and nationality, between national societies and continental communities in the
human existence.
For the beginning of this identity survey we should mention the ethnic identity and its importance in
the relation between the migrants and the citizens of the host countries. The ethnic group has some
characteristics such as common cultural traditions and its members have the identity feeling as part of the
society. The members of an ethnic group do differ from the others members of the society through cultural
elements such as language, religion, customs, clothes or behavior. The ethnic group may be treated as a
national minority. Such a minority is represented by the Roma people or the Gypsies. Their migration or
use of their rights for free travelling in Europe created some problems for different governments. As a
following there appeared the concept of discrimination on this ethnic group called Anti-gypsyism68
Actually is almost clear for all of us who are we talking about when we hear something about this
ethic group. Weve heard about the situations in France, in the cities of Lille and Lyon, where Roma-
camps have been erased by force although during the presidential campaign the French president
Hollande had promised to act differently than other presidents. In Austria the Supreme Court has
decided that the interdiction of begging does respect the existing constitution. 69
The question raised here is who the gypsies are and if we really do know who they are. Actually a
speech of Pope Paul VI in front of an assembly of Roma in Pomezia (1965) is the first really relevant
statement of the recent history. One famous sentence is quoted almost in every document of the Vatican
concerning Roma up to the present:
Dear Gypsies, dear nomads, dear Gitanos, coming from all over Europe, to you our
greetings. To you our greeting, you eternal pilgrims, to you, you voluntary fugitives, to you,
who are always in flight, to you, who are restless to be on the way. To you without a house of
your own, without fixed abode, without a friendly homeland, without public society. You who
lack qualified work, who lack social contacts, who lack sufficient means.
Greetings to you, who have chosen your little tribe, your caravan as your segregated and
secret world. To you, who regard the world with distrust and who are regarded with distrust by
all, you, who always and everywhere wanted to be foreigners, isolated, strange, excluded from
all social circles, you, who have been on the march for centuries and do not know where to
arrive and where to stay.
68
Gernot Haupt, Antiziganismus und Sozialarbeit. Elemente einer wissenschaftlichen Grundlegung, gezeigt an Beispielen aus
Europa mit dem Schwerpunkt Rumaenien, Berlin 2006; G. Haupt, Antiziganismus und Religion. Elementefur eine Theologie der
Roma-Befreiung, dargestellt anhandeiner empirischen Untersuchung eines Roma-Viertels in Rumaenien, Muenster, 2009.
69
The prohibition was necessary because there were some regions where foreign beggars with dark skin appeared.
30
You are not at the margins of the church, in a certain sense you are in the centre, you are at the
heart. You are at the heart of the church, because you are alone: nobody is alone in the church;
you are in the heart of the church, because you are poor and need assistance, instruction, help.
The church loves the poor and the suffering, the small ones, the dispossessed, the
abandoned.70
There are some strange outcomes of the concept of identity, because we can see that we can define
the gypsies on the base of their behaviors as a following of the nomadism, begging and other
characteristics which are nt part of the civilized European world. In the opinion of Gernot Haupt 71 and
based on the theory of the symbolic interactionism represented by George Herbert Mead72, Erving
Goffman73, Lothar Krappmann74 and others I would suggest that ethnicity be understood not as an inherited
marker, but as a result of a social interaction.
In this situation we can observe that ethnicity is only one part of my identity. In comparison with the
ethnic groups, which justify themselves first of all through the same origins and language, a common
cultural heritage, a small number of members the nation has bigger dimensions and does integrate more
70
Pope Paul VI (1965): Cari Zingari, cari Nomadi, cari Gitani, venuti daogni parte dEuropa, a voi il Nostro saluto. 1. II Nostro
saluto a voi, pellegrini perpetui; a voi, esuli volontari; a voi, profughi sempre in cammino; a voi, viandanti senza riposo! A voi,
senza casa propria, senza dimora fissa, senza patria arnica, senza societa pubblica! A voi, che mancate di lavoro qualificato,
mancate di contatti sociali, mancate di mezzi sufficienti! Saluto a voi, che avete scelto la vostra piccola tribu, la vostra carovana,
come vostro mondo separato e segreto; a voi, che guardate il mondo con diffidenza, e con diffidenza siete da tutti guardati; a voi,
che avete voluto essere forestieri sempre e dappertutto, isolati, estranei, sospinti fuori di ogni cerchio sociale; a voi, che da secoli
siete in marcia, e ancora non avete fissato dove arrivare, dove rimanere! Voi nella Chiesa non siete ai margini, ma, sotto certi
aspetti, voi siete al centra, voi siete nel cuore. Voi siete nel cuore della Chiesa, perche siete soli: nessuno e solo nella Chiesa;
siete nel cuore della Chiesa, perche siete poveri e bisognosi di assistenza, di istruzione, di aiuto; la Chiesa ama i poveri, i
sofferenti, i piccoli, i diseredati, gli abbandonati. http:// www.vatican.va/
roman_curia/pontifical_councils/migrants/documents_hf_nomads/hf_p- vi_hom_19650926_intmeeting-nomads_it.html viewed
on 20.08.2015. apud Gernot Haupt, Anti-gypsyism and Migration, in RES, Nr. 3/2012, p. 413.
71
Ibidem
72
George Herbert Mead, Geist, Identitt und Gesellschaft, Frankfurt/Main, 1968.
73
Erving Goffman, Stigma. Uber Techniken der Bewltigung beschdigter Identitten, Frankfurt/ Main, 1975.
74
Lothar Krappmann, Soziologische Dimensionen der Identitt. Strukturelle Bedingungen fr die Teilnahme an
lnteraktionsprozessen, Stuttgart, 1972.
ethnic groups. The nation characterizes itself through an official language, a territory, a culture, institutional
organization which can afford to administer a territory inside some borders.
Politically speaking, the nation means souveranity and independence, on the base of laws. Here
above we have mentioned the borders as a characteristic of the nation. The role played by the borders is less
articulated in the literature. One role is obvious, being distinguishing the territories that state make claims
over as well as the people who live in them. The opinions of the scholars and the reality nowadays is that
the borders are becoming blurred into borderlands.75
We are actually speaking here about the policies of integration of the others76 into the society as the
best method for respecting them. These policies of integration do lie primarily in the responsibility of the
nation states. On the European level the common actions on the field are very limited. As a conclusion of
the Tampere Program were set ambitious targets such as a vigorous integration policy in order to accord
legal residence to third country national rights and obligation comparable to those of the EU citizens. By
analyzing this statement we can easily observe the speed of change which characterized in two centuries the
European reality. The Council formulated a set of common basic principles of the EUs immigrant
integration policy in its 2618th Meeting of the Council on Justice and Home Affairs (19 th November 2004).
3.1.1. Factors of stability in the process of emigration

Because we have mentioned the situation of gyosism and anti-gypsism policies in Europe, as a
Romanian I would like to underline now some aspects regarding the factors which are taken into account
for migrating by Romanians and not only. Stability represents from the sociological point of view the most
important subject in frame of migration and integration. These factors are contributing to the status of the
future European continent regarding ethnic minority groups. At present labor migration is important
because of its economic consequences; people who come to work in host countries and after a few years
return to their country of origin have a temporary influence on the host countries. They may participate in a
process of integration, which should be considered as a long term process with different phases.
As a practical aspect, based on the studies realized the Romanian immigrants want to settle better in
Northern countries than in Southern countries, because of the stability. 77The wish of Romanian immigrants
seems to be related to the high level of education, legal status, high skilled job and work according to their
own qualification as well as the possibility they have to live in a modern society. Romanian immigrants in
75
Sarah J. Mahler, Transnational Migration, in Ajaya Kumar Sahoo, Brij maharaj, Sociology of Diaspora, p. 200.
76
Laura Maria Craciunean, Protectia diversitatii culturale in dreptul international: modeul uniti in diversitate? [The Protection
of the cultural diversity in the International law: The united in diversity model?], Hamangiu Publishing House, 2013, p. 84.
77
Monica Voudouri, op.cit., p. 162.
32
the Northern countries have a better score than those in the Southern with respect to the level of education,
legal ways of finding a job and finding work according to their own qualification. The differences between
Northern and Southern countries can be explained in terms of a difference in the immigration policy of the
receiving countries and/or the effect of a pull factor towards immigration in these countries. Romanians
who have entered Greece and Spain are needed in a labour market that is open to low educated and
unskilled workers. Even if one has a higher level of education, the work offered to immigrants, especially
in Greece, will be unskilled labour.78 In the Northern countries the demand for unskilled immigrant workers
is minimal and with respect to a very selective part of the labour market. Nonetheless, Romanian
immigrants in Northern countries may not feel completely structurally integrated due to the fact that they
lack full proficiency of the official language (especially those who are less than five years in the country),
have no total recognition of their university degree and are uncertain about their current job.
3.1.2. Social Integration of migrants (Romanian case)

Social integration refers to interaction (contact, exchange) between members of different ethnic
groups in society and mutual acceptance and adaptation. Positive social interaction especially with the
indigenous population, may enhance the possibility of migrants to be socially integrated. Atually, the
chance of social integration will be greater in a multicultural setting where people with different cultural
and social backgrounds meet, than in a setting with a smaller chance to encounter different kinds of people.
Contact and exchange may however not be enough to establish social integration. There should also be
acceptance of the immigrants by the indigenous population and mutual adaptation to each others behavior.
If this does not occur, the immigrants may not be satisfied with their lives in that society, because of among
other things feelings such as being a stranger and of missing warmth in human relations. The cognitions
one may have concerning social integration may be related to actions and norms which select and guide
permissible actions. For example the rules we use to interact with people who have other cultural
backgrounds than our own belong to these norms. In a multi-cultural setting we might apply different
communication rules than in a mono-cultural setting based on our own cultural backgrounds. Therefore,
one should know the norms within ones own ethnic group and those of other cultural groups as well.
Romanians in Southern countries score better than in Northern with respect to satisfaction with
personal relations.79 In this respect they are more socially integrated than those in the Northern countries.
The reason is however different for Romanian immigrants in these two areas of Europe. In the North
living in a modem civilized society and obtaining experience are given as reasons by slightly more
78
Monica Voudouris, op.cit., p. 162
79
Ibidem, p. 163
than half of the subjects, whereas good opportunity and money are the reasons for most of the
Romanian immigrants in the Southern countries. The choice for money as reason for satisfaction with life
in the country of migration, especially by Romanian immigrants, does not contribute to social integration,
but it should rather be considered a signal for disintegration, since these people would like to return to
Romania as soon as they have gathered enough money. The greater the degree of cultural similarity
between the immigrant and the indigenous population, the greater the chance for social integration might
be.
3.2. Diaspora in the age of globalization

The most important threat from the globalizations point of view is the world economy. It has given
rise to special forms of international migration which determined waves of migrants mostly concentrated in
cities, whose significance resides sociologically speaking more in their global rather in their national role.
In this way appeared the global city as a result of globalization. It is characterized by modern means of
transport, modern means of communication and it is a place of national and international connections. At
the same time it is a place of transaction and interaction between different diasporas. The global cities are
connected to each other through modern transport, communication opportunities and common interests and
in this way the world as a population structure becomes a global diaspora. 80 Nowadays diasporas change
from victims into challengers being both inside and outside a particular national society, the people of a
diaspora are always in a better position to act as a bridge between two countries because they are outsiders
as well as participants. As spectators they are able to compare and learn from how things are done in other
societies as well as in the one in which they find themselves.
What 19th century nationalists wanted was a space for each race or a territorialized social identity.
This is part actually of the geographical sociology which shows us that the number of nations is
considerably higher than the number of states. This means that people and homelands are not organically
linked. Here comes the globalization which produced a string of cosmopolitan cities as well as an
increasing proliferation of sub-national and trans-national identities which can not easily be part in the
nation state system.
3.3. Is the concept of diaspora flexible?
It is largely accepted that conventional sociological or political categories have become too
fossilized to capture the nuances of the contemporary world. In the same situation might be also the term of
80
Monica Voudouri, Romanian Migration in a Runaway World, Efes Publishing House, 2007, p. 33.
34
diaspora. The old sense referred t a group living outside its country of origin and sharing common bonds of
language, religion and a sense of common fate. R. Cohen speaks about many types of diasporas by taking
into account the motivation of departure of those who form the diaspora: victim diaspora, labor diaspora,
trade diaspora, imperial diaspora or cultural diaspora.81 Here may be added the professional diaspora as
well.
The diasporas are following the paths of identities: from ethnic identity to transnational identity,
from ethnic cultural diaspora to transnational diaspora. As we have shown before, there is a general
tendency to say that the foreigners are uneducated, poor or low-class people in comparison with the
nationals, but this cand be very easily contradicted. The presence of the Eastern European intellectuals in
Western Europe after the Second World War would be a concludent exemple in this way.
Diaspora is a flexible reality whose former characteristics are now disappearing. The diaspora as a
social structure of rootless migrants, living between two worlds is replaced by the diaspora as a new social
structure of people living in two or more worlds. A community of migrants living at the margin of national
society is replaced by a community of foreigners living in the middle of a multicultural society. A social
structure of migrants living between past and future is replaced by a social community living in the present.
For the second or the third generation of people of the diaspora, the change of the meaning of the
concept is more evident. What is home for them? What is exile? Are there any elements of ethnic culture
left intact? Do the expressions east and West still mean anything? Can migrants even call the place of their
birth home? As a result of globalization the multi-acculturated culture has appeared as a traveling culture. It
can never be exclusively national, but it is pluralistic, being positioned between nation-state and traveling
pluralist culture.
This is mainly the case of young professionals of the diaspora, dwelling in a nation state in a
physical sense, but travelling in a spiritual sense that falls outside the nation-states space or time. Those
mentioned before are mobile persons found in transnational fields. These types of people are members of
more than one diaspora. In this respect, diasporas can be seen as an innovating model of social organization
in a future globalized society.
3.4. Diaspora and Identity

After the fall of the Iron Curtain a massive process of approaching and cooperation is on the road
between the countries from the two parts of Europe. The bridge f this coopration was represented by the
immigrants, already settled in Western Europe and with experience and knowledge of both systems of
81
R Cohen, Global diasporas, UCL Press Limited, 1997.
thinking, customs and mentalities. If we are to take into account the Romanians in European diaspora, we
have to mention that there is a short tradition on this field in comparison with other Eastern European
countries. The Romanians have anyway there particular features such as a collective identity as eastern
Europeans. From inside they are Europeans as a geographical layout of the country, are Latins as orgin,
language and cultural affinities, are people from the Balkans as history and religion. Certainly modern
sociology is working with the concept of collective identity82 which is connected with new social
structures, modern metropolitan cities with second and third generation of migrants, trans-national social
layers appered in a modern open society. The world out of which a Romanian went to Western Europe is
one of civilisational and cultural ambiguity. This generates a permanent tendency to see the other people,
the host countrys native as an incomplete mirror of their own identity. The above mentioned ambiguity can
turn ambivalent during a quick process of acculturation, if the host country also recognizes the cultural and
symbolical capital based on common background of the immigrant.
82
In the case of Romanian people its collective identity is a formative characteristic, it appeared sometime in the history;
Romanians are people born and living during their history among different ampires. That is why we can say that their history is a
history of a tranzit zone, an avant la lettre globalized area. Cf. Monica Voudouri, op.cit., p. 45.
36
FROM RELIGION TO ETHNICITY RELIGION BASED DIASPORA IN EUROPE
Emanuel Tval
In the nineteenth and twentieth centuries there were numerous movements of population, both intra
and inter-continental, movements that have determined, with their completion, the crystallization of the
"diaspora" notion. In relation to these movements the concept of "uprooting", or, as shown by St. Augustine
in his own experience, the "alienatio mentis", was also used.
The term Diaspora has been borrowed from the Bible where it is used to describe originally the Jews
and then the Christians scattered among the nations, particularly during the Hellenistic period. Reference to
the Diaspora is found in the books of Deuteronomy (28, 25), Judith (5, 19), II Maccabees (1, 27), but also
in the New Testament (John 7, 35; James 1, 1; I Peter 1, 1). In these early cases it was Palestine which
geographically was regarded as the mother land, beyond the borders of which all Jews - and Christians -
living there were described as belonging to the Diaspora. The motives behind the spread of Jews and
Christians outside Palestine were usually commercial but also often related to persecutions, and used to the
spread of the Hebrew of Christian religion to the pagans.
Similar conditions apply also the appearance of the Orthodox Diaspora. Many Orthodox left their
homelands mostly for commercial purposes, but sometimes also for reasons of persecution, as was the case
particularly in communist countries during the 20 th century. Western Europe, America and even Asia and
Oceania became areas of Orthodox Diaspora mainly in modern times and particularly in the 19 th and the
20th century. The numbers of Orthodox leaving their homelands and establishing themselves in Western
countries reached their peak for the Greeks during the early and middle 20 th century and for those from
former communist countries in the end of the 20th and the beginning of the 21st century. In the present day
huge masses from Russia und Romania in particular are leaving their homelands to establish themselves in
Western Europe and America, and the same applies to smaller Orthodox Churches, such as Georgia,
Poland, Serbia and Bulgaria. There is, as we can easily observe, hardly any Orthodox Church which does
not have a diaspora today.
The term "Diaspora" means any religious community that has formed outside the canonical territory
of the Church which they once belonged to83. This notion had started dealing at first only with small
communities that were formed after the migrations of the people from the twentieth century especially, but
also a number of theologians have given an ecclesiological interpretation to this movement of population
83
Richard Potz, Eva Synek, Orthodoxes Kirchenrecht. Eine Einfhrung, Verlag Plchl, Freistadt, 2007, p. 173 .urm
and formation of Orthodox communities in the Western space, since these communities soon began to have
their own religious tradition, customs and liturgical practice. 84
1. The Diaspora in the Bible

1.1. In the Old Testament
When we refer to the diaspora of the Old Testament, a terminology distinction must be made first
regarding the term "Judaism". This term was first used both in relation to the Holy Land, talking about a
Palestinian Judaism, and regarding the Jewish communities from outside the borders, which is in this case a
Hellenistic Judaism85. The first term designated the normative Judaism, which has not undergone any
alteration of the law, while the second term designated the Judaism from the Diaspora, in which the Law
had suffered certain influences from companies where the members of that community were found.
The diaspora notion has a legal and a social sense. In the social sense, the term refers specifically to
what we mentioned above and we find references to this in the Holy Scripture, reffering to the Jewish or
Greek diaspora. But the meaning of the term used in these places is the "scattering" or "waste" one. The
scattering may represent the Jews spread worldwide in the non-jewish world or places where they live.
...you will come at them from one direction but flee from them in seven, and you will become a
thing of horror to all the kingdoms on earth. (Deuteronomy 28, 25)
Even if you have been banished to the most distant land under the heavens,from there the LORD your
God will gather you and bring you back. (Deuteronomy 30.4)
It is too small a thing that You should be My Servant

To raise up the tribes of Jacob,
And to restore the preserved ones of Israel;
I will also give You as a light to the Gentiles,
84
A. Boglepov, Toward an American Orthodox Church: The Establishment of an Autocephalous Orthodox Church, Crestwood,
New York, 1995, p.35
85
Ralph Martin, Peter Davids (ed.), Dictionary of the Later New Testament and its Developments, Inter Varsity Press, Leicester,
England, 2008, p. 287
38
That You should be My salvation to the ends of the earth. (Isaiah 49.6) 86
It is hard to know how early the Israelites began spreading voluntarily, but there are signs that there
was an old colony in Damascus (1 Kings 20.34) and it is possible that Solomon's expansionary policy to
have determined the establishing of some communities with trade concerns in areas other than the territory
of Israel. With the conquest of the kings of Assyria and Babylon, appeared the phenomenon of the forced
relocation of a part of the population in other regions of their empire(2 Kings 15.29; 17.6; 24.14; 25.11).
This policy was based on removing classes from which leaders of the people could be elected. Many of
these groups, moved mainly from the northern kingdom, lost their national and religious identity, but the
Jewish community from Babylon had a prophetic ministry, adapting to new conditions and learning to keep
the worship of the God of Israel without temple or making sacrifices . From here arose later those who will
return to rebuild Jerusalem. But these represented only a part of the community, the rest, quite a lot and
strong, remained in place during Cyrus and subsequently until the medieval period even managing to revize
the text of the Talmud .
Jews from abroad were not forgotten by those at home, and the representations about God's
merciful intervention in the last days also include the happy restoration of the "scattered Israel". The
geographical area from the prophecies is often larger than the Babylonian or Assyrian empire. In other
words, it has already begun another scattering, which probably was voluntary at first, but it was
strengthened by the refugees, as it is snown in Jeremiah 43,7 and they entered the land of Egypt (for they
did not obey the voice of the LORD) or 44,1 The word that came to Jeremiah concerning all the Judeans
who lived in the land of Egypt, at Migdol, at Tahpanhes, at Memphis, and in the land of Pathros. 87 So, the
Jews settled in Egypt and in lands further away and less known.
With the conquests of Alexander the Great began a new era of the scattering: an increasing number
of Hebrew immigrants being observed in various places. In the first century AD, Philo of Alexandria said
that the number of Jews from Egypt amounts to one million. The geographer Strabo, a little earlier, notes
the number and position of Jews from Cyrene and adds: "This nation worked its way into every city and it
is not easy to find a place in the inhabited world who has not received this nation and where its power
hasnt been felt." 88
86
Biblia sau Sfnta Scriptur [The Bible or the Holy Scripture], The jubilee edition of the Holy Synod, Mission Bible Institute and
the Romanian Orthodox Church Publishing (EIBMBOR), Bucharest, 2001.
87
Dictionar biblic [Biblic dictionary], Romanian Missionary Society, Cartea Cretin Publishing, Oradea, 1995, p. 340, col. 2.
88
Idem, p. 340, col.3
There is big evidence on the words of Strabo. In Syria there were big Hebrew colonies. Are
mentioned 71 cities in Asia Minor affected by the scattering. The Roman writers, like Horace, testify in an
unfriendly way about the presence and customs of Jews from Rome. Already in the year 139 BC the
expulsion of the Jews from Rome took place. So, the edict mentioned in Acts of the Apostles 18,2 89 had
some precedents, but the Jews have always returned.
Despite their lack of popularity, very little hidden in the speeches of the Pilate and Galio governors
and obvious in the shout of the Philippi crowd, These men are Jews, and they are disturbing our city. (Acts
16.20) and of the Ephesus crowd, But when the crowd saw that he was Jewish, they all shouted for two
hours, Great is Artemis, the goddess of the Ephesians! (Acts 19:34).
The diaspora was not limited to the Roman Empire, it was also present in the area of Persian
influence, as we are shown by the crowd gathered at Pentecost day. Josephus Flavius remembers interesting
things about Hebrew entrepreneurs, such as Fra Diavolo from Partia and the conversion and circumcision
of the King of Adiabene border State.
1.2 In the New Testament
In the New Testament references are made about "those of the Hellens, term wich not only
reffered to Greeks, but to all nations that did not belong to the Hebrew people. 90
The Jewish leaders asked each other, Where can he go to keep us from finding him? Is he going to some
foreign country where our people live? Is he going there to teach the Greeks? (John 7.35)
The notion of " " used here, may designate the Greek-speaking Jews, who were organized into the
Diaspora as those who were in Jerusalem. They will also be called . To these communities
may have also been referring the Evangelist John, when he calls them - Some Greeks were
among those who had gone to Jerusalem to worship during the festival (John 12.20). In the same category
are those appointed by St. Luke in the Acts as Fapele (Acts 6.1) 91, (Acts 9.29) 92,
(Acts 11.20) 93.
89
And having found a certain Jew named Aquila, born in Pontus, recently arrived from Italy, and his wife Priscilla, because
Claudius had commanded that all Jews departed from Rome.
90
Gerhard Kittel (ed.), Theologisches Wrterbuch zum Neuen Testament, Vol.2, lit. -, Verlag von W.Kohlhammer, Stuttgart,
1935, p.102
91
Acts, 6, 1: Now in these days when the disciples were increasing in number, a complaint by the Hellenists [a] arose against the
Hebrews because their widows were being neglected in the daily distribution.
92
Acts 9,29: And he spoke and disputed against the Hellenists.[a] But they were seeking to kill him.
93
Acts 11,20: But there were some of them, men of Cyprus and Cyrene, who on coming to Antioch spoke to the
Hellenists[a] also, preaching the Lord Jesus.
40
Instead, St. James uses the term "diaspora" who appoints at the Christians spread all over the world,
those who make up the new Jerusalem, the true "Israel of God" (Galatians 6:16).
James, a servant of God and of the Lord Jesus Christ, To the twelve tribes in the Dispersion: Greetings.
(James 1.1)
Another meaning of the term "diaspora" is the one used by the Apostle Peter in his first Catholic
epistle, namely a world where Christians are just passing through this earth.
From Peter, an apostle of Jesus Christ. To God's people who are scattered like foreigners in Pontus,
Galatia, Cappadocia, Asia, and Bithynia..(Peter 1.1).
The influence of the diaspora in preparing the way for the gospel is undeniable. The Acts of the
Apostiles show how Paul, the Apostle of the Gentiles, began his missionary activity also through sermons
held in synagogues. The majority of the Diaspora Jews refused to recognize Christ as the Messiah and those
from the Gentiles received Him with joy. Among the Gentile people, proselytes and those who feared God
were found. A few of the representative converted, such as the centurion Cornelius or the Ethiopian Eunuch
were first proselytes or God-fearing people and they, like Diaspora products are a vital factor the in early
Church history. They came to faith with a previous knowledge of God and of the Scriptures and they were
already avoiding idolatry and immorality.
2. Canonical issues regarding diaspora
In canonical sense, the diaspora term designates a community or a church establishment
territorially organized as such unit outside the body of the independent or autocephalous Church, but still
remaining under its jurisdiction.94 Therefore, the Orthodox Diaspora represents all the external units of the
independent or autocephalous Orthodox Churches, from the ecumene contents. The relations of the mother
Churches with their diaspora are conducted, as noted above, based on the church statutes made up by the
church units from the Diaspora. However, in recent decades there have been numerous discussions
regarding certain situations that occurred within the diaspora and that concerned their relationship with the
Mother Church. Animosities arising in relations between the Orthodox communities in the Diaspora and
Mother Churches were caused by political factors, given that after the end of the Second World War, in
most orthodox countries have been introduced communist regimes, which aroused suspicions from the
diaspora communities regarding the freedom of decision of the Church there.
2.1. Historical and canonical journey regarding the Orthodox Diaspora issues
94
Article 1 of the canonical status of the Romanian Orthodox Metropolis of the Western and Southern Europe, states that the
Metropolitan is an autonomous administrative and canonical unit of the Romanian Orthodox Church - Romanian Patriarchate.
She oversees the coordination of the pastoral and missionary activities of the Romanian Orthodox dioceses that have canonical
jurisdictions in the countries mentioned in art. 2
It should be noted from the beginning that, despite the biblical passages that refer to the Diaspora
issue, they do not refer to the question to which we refer in the present research. This is because although
the Church's missionary activity was a prodigious one even from the beginning, there were no discussions
regarding the authority that would exert its power over them, but the question which arose was primarily to
help these newly created communities. It must be said that, in fact, the question of the leadership or
exerting authority over these communities was not in question, they were leading themselves like the
Mother Churches and legal norms actually did not exist in order to be able to speak about exerting the
jurisdictional power. As we all know, the church units were constituted spontaneously through good
understanding and their relations were regulated also through the rules of a good understanding, which had
nothing to do with the supremacy desire or primacy between their leaders or between thrones.
Only after the Edict of Mediolanum in 313, the Church, with its freedoms and needs, caused by the
new reality, which also determined organizational changes and the development of legal norms, both taken
from the Roman law and others of its own, will also face the appearance of rivalries and disagreements
regarding the affiliation of some communities to a bishop or another. The problem was that, from simple
communities, the desire to rule bishopric sees, that invoked seniority and prestige, was extended to some
whole territories. That is the case of the seat of Rome, which advocated for also expanding its jurisdiction
outside the Italian peninsula, into the Balkan and in Gaul peninsula.
Such desires were not missing in the East either, from which the ecumenical Synod III recorded and
rejected by canon 895, the desire of the seat of Antioch, who wanted to extend its jurisdiction over the
Church of Cyprus, which it considered as its "diaspora".
95
The God belover, Bishop Rigin and other bishops of the cypriots diocese (Metropolitan), Zenon and Evagrie, also
belovers of God, presented to us a new thing invented, averse (contrary) to the church ordinances and to the
Apostolic Canons and that endangers (touches) the freedom of all. Therefore, because the public sufferings need
more healing, rather than some who bring themselves even more damage and especially because it was not followed
(observed) any old habit, such as the bishop of the city of Antioch to make the ordinations from Cyprus, as it was
shown (confirmed) through the zapise (documents, letters) and through the voices of the overzealous men who
appeared in the holy synod. The primates of the holy churches in Cyprus to have power, without confusion and
compulsion, following the canons of the pious fathers and the old custom to be made by them the ordinations of the
overzealous bishops. This should be also kept (observed) in the other dioceses and eparchies (Metropolitanates) from
everywhere, so as none of the God belover bishops to extend (grasp) to another diocese, which was not long ago and
from the beginning under its hand or under the hand of those before him. And if someone included (occupied) a
foreign diocese and forcibly put it under him (in his possession), he would give it back (return), so that the canons of
the parents would not be violated and by word (in the guise or pretext) of work felt to sneak the pride of wordly
possession and we should not overlook that little by little we lose the liberty (freedom) which has been given to us,
through His blood, by our Lord Jesus Christ, the Reedemer (Deliverer) of all people. Therefore, the holy and
ecumenical synod thought that each diocese (Metropolitan) should keep clean and untouched the rights which are
entitled to them, from the beginning, after the custom held from ancient times, each metropolitan having the
indulgence (permission ), as for its own insurance(safety), to take the copies of things which were stated(decided).
42
The problem of the Orthodox Diaspora, or rather of the right to exercise jurisdiction over it,
reappeared after end of the First World War and through the emergence of the uniform nation states,
especially in Europe but also in America. As a result of these changes, the Ecumenical Patriarchate of
Constantinople has laid down claims alleging some old canons and the old practice according to which he
would have an exclusive right over the Orthodox Diaspora. From the outset it should be noted that both the
canons and the longstanding practice constitute grounds and sources of the law that can be invoked for
defending or claiming certain rights, but at the same time it must be outlined the fact that at the time when
some canons (such as the apostle ones or those of the First Ecumenical Council) have been elaborated,
which the relationship between the main seats of the Church were regulated, the Constantinople seat was
not found among them, it being until the year 330, just a simple Byzantine bishopric. Only after this city
becames the capital of the Empire and will be named after the Emperor Constantine, the honorary
ascending of this chair begins; ascending that would be confirmed through Canon 3 of the Second
Ecumenical Council, in which the seat of Constantinople will be sitting in the same place with Rome.
Before this canon, by the previous canon (2 II eq.) the jurisdiction of the old church chairs was reaffirmed.
So, by the changes suffered because of to the situation of the Church in centuries III and IV, unlike
her situation from the beginning, mentioned above, the jurisdiction for all seats was normal to be regulated,
through the apostolic, council ecumenical or local canons.
Thus, through the Apostolic Canon 34 it is ordained that each bishop should resolve only the issues
belonging to them, and the Apostolic Canon 35 states that bishops cannot interfere with the businesses of
other dioceses, against the permission of those who lead them. Canons 6 and 7 of the First Ecumenical
Council, insist that, in this regard, the old habits should be kept and canon 2 of the Second Ecumenical
Council demands that bishops not to extend their jurisdiction over other churches, besides their diocese. By
many canons of the Antioch synods (can. 9, 16, 17,18, 22) or the Carthage synods (17, 23, 28, 52) it is
insisted over the same good order in matter of jurisdiction. By its provisions, the Second canon of the
Second Ecumenical Council, for the first time, brings clarifications regarding the issue of "diaspora",
stipulating in its last part that the Churches of God which are among the Barbarians96, should be
administered after the custom of parents, which was held. Therefore, the diaspora of that time was
governed by each seat through the work of who established it or through Christianization, in the form of
And if someone would stand a ruling contrary to those ordained now, it seemed to the entire holy and ecumenical
synod that it should be without strength.
96
The Churches of Barbarians were considered to be the ones inside or from the edge or from outside the empire, created by
the missionary work of some centers of the Church which were larger or closer to them on the territory of the empire.
mission, or by detachment. 97 This was a general order and nobody could think then that actually the
exclusive jurisdiction right over the diaspora would belong to the seats of Rome or Constantinople,
especially since none of the seats claimed such a right. The possession of such a right and its exercise
would have also meant the possession and exercise of a jurisdictonally partial primate throughout the whole
Church and not just an honorary primate.
2.2. Canon 28 of the Fourth Ecumenical Council, Chalcedon 451
Canon 28 of the Fourth Ecumenical Council, was discussed in the last session of the council, most
likely on Thursday, November 1, 451, and it seems that the text itself was formulated after the discussions
that took place the night before98. Despite the discussions on the content of this canon, it is however not a
very clear one, still giving opportunities to many interpretations.99 The Greek Professor George Dragas
even said that the jurisdictional problem has been established in a very clumsy way and in a restricted
form( ) as if the purpose of this canon was rather to ban the bishops of Constantinople
from directly consecrating bishops for the seats that were found in the neighboring provinces and that
lacked a metropolitan. 100
Canon 28 is actually formed, at first, by an introduction that shows the place occupied by the New
Rome among Patriarchates, the judicial power resulting from occupying such a position being later
expressed through a restrictive wording. The procedure for the election of bishops, described in the last part
of the canon, excludes the intervention of the Constantinople Archbishop, with the exception of choosing
the primates (metropolitans). Excluding the role of Constantinople was expressly mentioned in the official
interpretation given by the imperial representatives:
"Local bishops should be ordained by the bishops of that province or by most of them, the
confirmation of the new bishop being in the hands of the metropolitan power, which is in accordance with
what the Parents have decided. This should be done without any intervention or reference to the
Constantinople Archbishop regarding these ordinations." 101
The restrictive appearance of the canon was also underlined by Bishop Anatolius in his letter to
Pope Leo, through which it tells the Bishop of Rome that the exclusive right to ordain the bishop of
97
Liviu Stan, Ortodoxia i diaspora, n Ortodoxia(Orthodoxy and the diaspora, in Orthodoxy,), 1963 year, nr.1, p. 8
98
Philip Schaff, op.cit., p.435
99
Peter (Paul) LHuillier, The Church of the Ancient Councils, the disciplinary work of the first four ecumenical councils, St.
Vladimirs Seminary Press, Ed. a 2-a, 2000, p.268
100
Idem, p.269
101
Idem, p.269
44
Constantinople was taken by this canon, based on a custom that had already existed for over 60 years and
that was working well.
The text of the canon 28, analyzed in contrast to the previous 27 ones is more accurate, which led
the researchers to affirm that the text was well formulated and tought by the Church of Constantinople
chancellery. The canon has two parts: an introduction outlining the situation and evolution of the
Constantinople seat and the second part with the decision took at Chalcedon. The second part is also
presented as a consequence of the first part, this was also shown by the coordinative conjunction
followed by the sub ordinative one . 102 Firstly it is shown the canonical situation of Constantinople,
being nearly an interpretation of Canon 3 of the Second Ecumenical Council, still being the part that
justifies what follows. The intrinsic importance of the preamble also resides from its length, much higher
compared to what follows in the second part. With this preamble are asserted the over-metropolitan rights
of the Constantinople seat in the dioceses of Pontus, Asia and Thrace, the archbishop of Constantinople
right to ordain bishops among barbaric nations, that, at judicial level represented an extension of the
dioceses mentioned above and clarifications concerning the promotion of Bishops and metropolitans of the
three dioceses.
Firstly, it is noted in this canon the solemnity of the original formula
.103 The link to the council's dogmatic formula is obvious, 104 this not being an
accident. Through the link with the dogmatic formula it is shown the continuity intention of the tradition at
the same time with its. The drafters of the text tried to show a posteriori the reasons that set the basis of the
decision of the council in 381, to put Constantinople in equality with the seat of the Old Rome. Those
reasons were based on the territorial principle, meaning the canonical organization of the Church must meet
the political and administrative order. Constantinople, which acquired the imperial capital status, being
honored by the presence of the senate and the emperor, it was legally equal to the Old Rome.
Of course, on the way to acquiring this status there were many obstacles. There was never any
question that Rome to be denied its prerogatives. In fact, Constantinople it the nicest formulations was
called "the second queen '-' ... . An important step towards placing the two
bishoprics chairs on the same footing was made during Emperor Constantius(337-361), then a stagnation
for several years followed and then the ascent of the Constantinople throne to have a fresh start under
Emperor Valens (364-378) .With the solemn entry of Theodosius in the city, on 24 November 380, the
political situation of Constantinople has positively stabilized, the emperor established here his permanent
102
Idem, p.270
103
Following entirely the ordinances (decisions) of the Holy Fathers
104
Peter (Paul) LHuillier, op.cit., p.270
residence, transforming the city into the capital of the eastern part of the Roman Empire. It should be
considered that with the rise of Constantinople it was forseen and became evident the decline of Rome. In
these circumstances, there were very harsh opinions against Constantinople, from the other side of the
Empire. The most vocal position was that of regent Stilico, considered to be "the perfect image of the
German Romanized barbarian"105, who managed the issues of the Empire on behalf of the minor Honorius.
The Claudian poet followed him, who called Constantinople as "quae dicitur aemula Rome." This position
of Rome towards Constantinople, was also reflected in the church by the papal attitude on the Council of
Chalcedon and by Pope Leos position when seeing the ascent of the throne of Constantinople. Only in the
year 421, the legal equality of the two capitals was proclaimed through the civil legislation. From then
onwards, all Old Rome incumbent privileges were also extended to the New Rome. In a speech by
Themistius in front of Emperor Constantius II in the year 357 it was even stated that even "the new capital,
Constantinople, attended the destiny and reputation of Rome .106
Therefore, the first part of the canon 28 is an periphrastic exegesis that presents the primacy of
Constantinople chair, founded on the civil status of the city and recognized by synod of 381. However,
there are some nuances. In the synod of 381 it was told that it is about "honor prerogatives-
107, while in Chalcedon it is outlined that it is about "equality - " and that the chair of
Constantinople should be placed in the same place with the Old Rome regarding church issues. However, at
the end of the first part of the canon it is stated that "in church matters, Constantinople is second to
Rome"108 without this clarification is difficult to speak about a hierarchical order.
Later, in another historical context, in which Rome was occupied and Constantinople was going
through a period of prosperity, it was opined that the term from the text of canon 3 of the Second
Ecumenical Synod and from canon 28 of Chalcedon did not show the hierarchical order, but the timeline
one. This idea is also based on the fact that in Chalcedon the term equality - is used, which
excludes the idea of a hierarchical structure. This idea was rejected by I. Zonaras. 109
As we have already shown, it is also obvious in the second part of the canon 28 of the Synod of
Chalcedon that its authors did not want to express through the expression "honor prerogatives just a simple
honorary precedent, but they wanted that this wording to clearly show the responsibilities of the two chairs
105
Idem, p.271
106
Idem, p.272
107
Philip Schaff, op.cit., p. 425
108
Ioan Floca, Canoanele Bisericii Ortodoxe. Note i comentarii [The canons of the Orthodox Church. Notes and comments],
Sibiu, 1993, p. 93
109
46
from Old and New Rome, the latter especially being in connection with the East 110. This, linked with the
right of the historical patriarchal seats of consecrating bishops in the neighboring dioceses, led to the
formulation of canon 28. Of course that the formulation was also based on the old custom regarding the
three provinces mentioned by the canon. It could not be established until now if it existed, at that time, any
parallel between the extension of the ecclesiastical jurisdiction of Constantinople over the three dioceses
and some other similar action of the other seats in Rome, Alexandria or Antioch. It should however be said
that, concerning the case of Constantinople, it was already being practiced for a few decades what was
stated by the Fourth Ecumenical Synod and was working very well. Here it intervened the question of the
legal character of the rightful habit on which the provision of canon 28 was based. Interventions and
opinions on this issue were made mainly during meetings 12 and 14 of the Synod of Chalcedon, but some
opinions have been voiced since the time of Macedonia (314-360) 111. It is recognized that, in the time of
St. John Chrysostom episcopate, the authority exercised by Constantinople over Asia and Pontus was
strengthened. Thus, in the problem of Asian Bishops accused of simony, St. John Chrysostom not only
presideded over their condemning synod, but proceeded to choosing other substitute bishops. On the way
back to Constantinople, St. John deposed bishop Gherontie of Nicomedia, arousing the anger of the local
residents. At the Synod of the Oak, one of the charges brought to St. John was that he intervened in other
provinces problems, instituting bishops there.
Canon 28 institutes an over-metropolitan jurisdiction of the Constantinople over the dioceses of
Pontus, Asia and Thrace, but granting the metropolitans from these provinces the right to promote their
own bishops. In the Middle Ages, certain authors have given another meaning to the sentence:
,112 , and the term -only
was interpreted as a restriction on the exertion of the jurisdictional right of Constantinople over other
provinces113, which appears absolutely normal, especially after the latest developments from the twentieth
century. The interpretation was also accepted by Gregory Aristen, while John Zonaras takes over the idea
of a general judicial right and not restricted over the other dioceses, but still reminds the other opinion.
Based on such interpretations was based the discussion regarding the exclusive jurisdiction right of
Constantinople seat over the whole Diaspora.
2. 3. Discussions regarding the diaspora theme in the twentieth century
110
Ioan Floca, op.cit., p.93 and the following.
111
112
Idem., p. 428
113
From the helping work of other Churches, held by the Ecumenical Constantinople seat, sometimes
were drawn the wrong conclusions. These conclusions have prompted discussions on the jurisdiction right
of the Orthodox Diaspora, a right that was claimed by the Church of Constantinople, both in relation to the
old patriarchates and also with the new autocephalous Churches. It went further and stated that through
prolonged use, these privileges were crystallized in a consistent form,and that they have acquired written
law character, today them must being treated as such.
Pr. Prof. Liviu Stan also presents the content of this right of jurisdiction of the New Rome Chair
over the Diaspora:
- The right to judge the appeals received from other churches;
- The right to receive foreign clergy from other churches without canonical letters issued by those;
- The right to have devolutive right over the controversies of any nature that may arise in other
churches;
- The exclusive right to sanctify the Great Myrrh;
- The exclusive stauropegial right;
- The exclusive right to canonize saints. 114
To these are added some newer privileges, including the exclusive right of jurisdiction over the
Diaspora. All those privileges and rights mentioned above only represent repeated and committed acts by
the seat of Constantinople in exceptional circumstances, also being a helping of the other churches who for
one reason or another could not lead themselves normally. "Commintting such acts, interpreted by some as
right generating, actually represent a duty of any seat or any Church able to commit them. But from here to
constituting a right with legal character, there is a long way . 115
As we have said, each autocephalous Church has organized its own structure for the diaspora
located on different continents of the world. Only the Church of Greece and Cyprus dont have their own
diaspora structures organized, the Greek diaspora being under the jurisdiction of the Church of
Constantinople, Alexandria or Jerusalem. All autocephalous churches have exercised their rights over the
diaspora without restrictions, even when there were misunderstandings, they have claimed this right.
The agreement concluded in 21 March 1908 between the Ecumenical Patriarchate and the Church of
Greece based on the fears of the Constantinople Patriarchate that it will not be able to exercise its
114
Ibidem, p.13
115
Liviu Stan, op.cit., p. 17-18
48
jurisdiction over the Diaspora, because of the internal turmoil in Turkey, which already posed threats to the
Greeks and the outbreak of a war in the Balkans, was seen as an auspicious act116. Through this agreement,
the patriarchate of Constantinople assigned its rights over the diaspora to the Church of Greece, this being
the only entity that could exercise its jurisdiction over it.
What surprises in the text of the agreement is that the Patriarchate of Constantinople is trying to rely
on the provisions of Canon 28 of the Fourth Ecumenical Synod 117, in order to create an exclusive right over
the Orthodox Diaspora. This idea has been previously issued by some Greek theologians, and after the
Balkan War (1912-1913) was applied regarding the situation of Mount Athos. The Ecumenical Patriarchate
has affirmed, along with the spiritual jurisdiction, a judicial jurisdiction over Mount Athos. Although there
were monastic communities on the territory of the Mountain that belonged to other churches. The
agreement of 1908 has been fully respected by the Church of Greece, so in 1919, in the law project for
organizing the Church here, in Article 180 was stipulated that all Greek Orthodox communities from the
diaspora, which are located outside the Autocephalous Orthodox Church, form a part of the Orthodox
Church in Hellas and are subjected to the spiritual jurisdiction thereof 118. As a result of this law, the
Archbishop of Athens, during a visit to America in 1918 only dealt with the Greek diaspora, but in the year
1920 during another visit, the Archbishop, now banished from the seat, is also concerned by the situation of
the diaspora of other Churches, so that a year later, in 1921, once on the throne of Constantinople, Meletios
Metaxakis will emphasize the universal jurisdiction law of Constantinople over the diaspora.
As a result, he even goes to practical things. On 14 March 1922 he placed under the jurisdiction of
Constantinople all the Greek Orthodox people in America, so that after two months, on May 30, 1922 to
establish four dioceses of the Constantinople Patriarchate on the American continent. The following year,
on March 7, 1923, in violation of the Serbian Patriarchate, he named Savatie as the Archbishop of Prague
116
Wassilios Klein, Orthodoxe in der Diaspora. Zur Tradition der Integration, in Pastoraltheologie, 2000, nr.89, Bonn, p.76
117
Entirely following ordinances (decisions) of the Holy Fathers and knowing the just read canon of the 50 God belover Bishops,
who met in the imperial Constantinople, in the new Rome, under the great Theodosius, the former king of blessed memory, we
ordain (decide) the same, about the primacy (privileges) of the Holy Church of the same Constantinople, of the new Rome since
also to the chair of the Rome, the old parents righteously gave (conferred) the primacy (privilege) for the reason that that city was
royal city. And the 50 God belover bishops, urged (pushed) by the same goal (purpose, reason), have given (conferred) equal
primacy (privileges) to the Blessed chair of the New Rome, considering to be right as the city that was honest (honored) with the
kingdom and the senate and that gained primacy (privileges) both (equal) like the ones from the old imperial Rome; just like that
to be greatly made (raised, ascend) also in the church matters. Also it is decided that only the metropolitans diocese of Pontus,
Asia and Thrace, and also the bishops from the barbarian lands of the previously stated dioceses to be ordained by the holy
memorable chair of the Most Holy Church of Constantinople; meaning that, each metropolitan of the dioceses mentioned
together with the bishops from the metropolis to ordain the bishops from the metropolis as it is commanded by the divine canons;
and the metropolitans of the named dioceses to be ordained, as it was stated by the Archbishop of Constantinople, when.
according to the custom, unison (unanimous) elections have done and were brought to his attention.
118
Liviu Stan, op.cit., p. 18
and of the whole Czechoslovakia, dissident against the Czech Orthodox Prague bishop, who was in
canonical dependence to the Patriarchate in Belgrade. After this act, he will also ask the Russian
archbishop Evloghie from Paris to no longer exercise his jurisdiction over the Russian diaspora in Europe,
because the seat of Constantinople has exclusive jurisdiction over it. The Meletios Patriarch also placed
under the canonical obedience of the Ecumenical Patriarchate the Church of Finland and the one of Estonia.
Things were not quiet with the death of Meletios, his successor, Gregory VII (1923-1924) proclaimed the
restricted autocephaly of the Church of Poland, which also remained under the jurisdiction of
Constantinople. 119
Of course that these acts were not without repercussions. Vehement protests firstly raised the two
Churches that were affected by the acts of Constantinople, namely the Russian and Serbian Church. The
argument of those from Constantinople is rejected and the acts committed are refused to be recognized,
asserting its own jurisdictional right over its own diaspora. 120
The discussions regarding the Orthodox Diaspora will also continue after the Second World War, as
we will see in the discussions of the Pan-Orthodox Conferences.
2.4. The problem of the diaspora in the Pan-Orthodox Conferences in the twentieth century
This thing and also the previous discussions (which we will return to below) were aroused by the
Constantinople seat in connection with an exclusive right of its own over the units from the diaspora and
have determined introducing this topic on the work agenda of the Panorthodox Conference from Rhodes in
1961 , gathered for preparing the future pan-Orthodox Synod. This theme was reviewed recently between
6-13 June at Chambessy (Switzerland) within the framework of the 4th Pan-Orthodox pre-conciliar
conference.
In the list of topics adopted at Rhodes, the diaspora issue is mentioned in chapter V, let.G, as it
follows: Orthodoxy and the diaspora. The current situation and the canonical position of the Orthodox
Diaspora ".121 The discussions here focused more on the diaspora problem in America, where the
problems had appeared earlier.
Between 6 - 12 June, 2009, at the Orthodox Center of the Ecumenical Patriarchate in Chambesy,
near the town of Geneva, the meetings of the Fourth Preconciliar Pan-Orthodox Conference were held,
119
Idem, p.19
120
Idem, p. 20
121
Nicolae Chiescu, Note i impresii de la Conferina Panortodox de la Rhodos n Biserica Ortodox Romn *Notes and
impressions from the pan-Orthodox Conference at Rhodes in The Romanian Orthodox Church], 1961, no. 9-10, p. 876
50
convened by the Ecumenical Patriarch Bartholomew, with the agreement of the Primates of the local
Orthodox Churches, expressed in meetings of the Primates of the local Orthodox Churches from 10-12
October 2008, in Fanar, and confirmed in the subsequent exchange of letters.
The meeting started with the commission of the Pentecost Divine Liturgy and was held under the
presidency of the Metropolitan John (Zizioulas) of Pergamon, of the Ecumenical Patriarchate, with the
support of the secretary to prepare the Holy and Great Synod of the Orthodox Church, the Metropolitan
Jeremiah of Switzerland. At the Meeting attended all the representatives of all the Autocephalous Orthodox
Churches that have received the appropriate invitation from His Holiness Bartholomew, the Ecumenical
Patriarch. 122
Primates of the local Orthodox Churches welcomed the conference participants via messages or
representatives. The participants in the event sent telegrams to all the Primates of the local Churches,
requesting their prayers and blessings for the working sessions that followed. According to the wish of the
Primates and of the representatives of the local Orthodox Churches, stated in the message of the
participants at the mentioned meeting, in Istanbul, in October 2008, the preconciliar conference theme was
and it was related to the organization of the Orthodox Diaspora. The decision on the agenda was made by
participants at the beginning of the works. The meeting, in the spirit of brotherly love and trust, reviewed
the documents prepared at the gatherings of the preparatory Pan-Orthodox Commission from November 10
to 17, 1990 and 7-13 November, 1995 at Chambessy. In the documents additions, corrections and
explanations adopted by consensus were brought.
In his opening speech of the conference, Metropolitan John Zizioulas said "it is not enough to say
that we are united by the same teaching and worship, but we must prove it by deeds, to show that we are an
undivided church, capable of meeting in a synodal assembly (Panorthodox nn)." 123 The issue of the
Orthodox diaspora is one of the most serious ones that the Church faces with, said Metropolitan John
Ziziulas and we must take into consideration the fact that the traditional church organisation was based on
the principle of territoriality and not the nationality one. In the old church it was inconceivable that in the
same locality to be a bishop for the Greeks and another for Syrians or Latins or for all other ethnic and
cultural entities. Metropolitan John of Pergamon wondered whether the Church is ready to return to the old
canonical discipline, that to have a single bishop for a local church. Of course, says Metropolitan John, this
can only be done starting from two main elements: on the one hand, the reaffirmation of the Orthodox
122
***, Geneve, 4e conference panorthodoxe preconciliaire, in Service Orthodoxe de Presse (SOP), 2009, July-August, p. 1-3,
here p. 1
123
Metropolite Jean (Zizioulas), Nous devons prouver par nos actes que nous sommes une Eglise indivise, in Service Orthodoxe
de Presse (SOP), 2009, July-August, p. 19.
ecclesiology, according to which there is only one bishop for every local church and on the other hand, a
transitional stage, which consists in the formation of episcopal assemblies, one for each region, made up of
canonically recognized bishops who serve in that area. 124
The Conference recognized that all the Holy Orthodox Churches seek the settlement of the
Orthodox diaspora organization based on tradition and ecclesiological and canonical practice of the
Orthodox Church. The Conference decided to create new episcopal assemblies in some regions of the
world, for regulating the Diaspora situation, meaning the faithful people who live outside the borders of the
local Orthodox Churches. The presidents of these assemblies are the first of the Ecumenical Patriarchate
bishops in that area, and in their absence, the following [bishops], in accordance with the order of the
Diptychs Churches. 125 The participants in these meetings are all of the canonical bishops recognized by all
Orthodox Churches and which serve communities in each of these regions. The activity of the Episcopal
Assembly is directed towards the manifestation and confirmation of the unity of the Orthodox Church, the
common pastoral serving of the Orthodox inhabitants from the region and their common testimony before
the world. The decisions of the Episcopal Assembly will be taken on the basis of churches unanimity,
bishops who are represented in the assembly.
The Conference also approved a draft regulation that would define the activity basis of the
Episcopal congregations in the Orthodox diaspora. The other items on the agenda of the Holy and Great
Synod, namely the method of proclamation of the autocephaly and autonomy and also the order of the
Diptychs, will be examined at the next meetings of the preparatory pre-synoid committees and submitted
for approval to the following presynoid pan-Orthodox conferences.
The canonical problem at the Orthodox Diaspora arises in connection with two fundamental
ecclesiological principles which are basic to Orthodox Canon Law. The first is the geographical or
territorial basis of jurisdiction; the second is the canonical provision that there can only be one bishop in
each city. Both these principles seem to be grossly violated in the way the Orthodox Diaspora is organized
today. 126
In the first place, the territorial basis of canonical jurisdiction is well established by the canonical
tradition, as expressed by canon 2 of the Second Ecumenical Council: no bishop should exceed the borders
of his own church. These borders are fixed by the above canon for the Churches of Alexandria, Antioch and
Constantinople (Pontus, Thrace and Asia - cf. canon 28 of Chalcedon). On the basis of this principle every
124
Ibidem, p.21
125
tefan L.Toma, A IV-a Consftuire Panortodox Presinodal de la Chambesy (Elveia), n Telegraful Romn, [The fourth
Panorthodox Pre-synoidr Meeting from Chambesy (Switzerland)], in The Romanian Telegraph), 2009, nr. 25-28/1-15 July, p. 3
126
Ioannis Zizioulas, Orthodox Diaspora: Facing a Canonical Anomaly, in Kanon, XXII, Edition Roman Kovar, Nennef, 2012, p. 8
52
Tomos issued on the establishment of an autocephalous Church contains an explicit reference to the
canonical borders which this Church is not allowed to exceed.
This principle is not observed in the case of the Diaspora which is regarded as no mans land in which
all autocephalous Churches claim the right of jurisdiction. The Patriarchate of Constantinople claims that
canon 28 of Chalcedon gives it the right to exercise jurisdiction in all areas beyond the established borders
of the other autocephalous Churches by giving it the right to ordain bishops in the barbaric places or
nations (cf. also canon 2 of I Constantinople). This canon is interpreted in the same spirit by the Churches
of Alexandria, Jerusalem, Greece, Cyprus and Albania, but not by the rest of the autocephalous Churches.
As a result, the first of the above mentioned Churches abstain from establishing their own jurisdictions in
the Diaspora, while the rest do not.
The inevitable consequence of the divergence of opinion concerning canon 28 of Chalcedon is the
violation also of the second ecclesiological and canonical principle mentioned above, namely that of the
existence of only one bishop in the same city. This principle is expressed by canon 8 of I Nicaea, and its
ecclesiological significance is so important that by violating it the Church is in danger of falling into
heresy. For the existence of many bishops in the same local church amounts to a division of the body of
Christ in that place, given that the function of the bishop is precisely to transcend in his person as the
president of the Eucharist all national and other differences, according to the words of St. Paul that in Christ
there is neither Jew nor Greek etc. (Gal. 3, 28).
It was precisely this establishment of episcopal dioceses on the basis of ethnic identities that was
officially condemned by the local Synod of Constantinople in 1872 in which, besides the Ecumenical
Patriarch and the Synod of Constantinople, the Patriarchs of Alexandria and Antioch and the Archbishop of
Cyprus participated. And yet this condemnation is entirely overlooked in the case of the Orthodox Diaspora
in which we have Greek, Russian, Arab, Serbian, Romanian, Georgian, Bulgarian, Polish etc. bishops
existing side by side in the same city. This is indeed, a most serious and tragic anomaly from the
ecclesiological and canonical point of view.
Steps towards a solution
Being conscious of the anomaly of the existing situation in the Diaspora the Orthodox Churches have
unanimously agreed to put this matter on the list of the themes of the forthcoming Pan-Orthodox Council.
In accordance with the procedure agreed upon for the preparation of the Council all items of the agenda of
the Council have to go through a stage of preparation so that an agreement should be reached on each item
before it is regarded as mature for reference to the Council. This preparatory procedure provides that each
item should be examined by an Inter-Orthodox Preparatory Committee which has to reach its agreement
unanimously. If such a unanimous agreement is not reached by one meeting of this Committee an indefinite
number of meetings must take place until the item under consideration is regarded as mature to be sent to
the next official body which is the Preconciliar Panorthodox Commission, the body that can declare, also
by unanimous decision, that the item under consideration can be finally referred to the Holy and Great
Council. As you see, the procedure is very long and elaborated, and can prove to be extremely difficult,
particularly because of the provision that all decisions must be reached unanimously.
This has been the case particularly with the item of the Diaspora. In order to reach an agreement on this
subject an Inter-Orthodox Preparatory Committee met in Chambsy in 1990 under the presidency of the
then Metropolitan of Chalcedon, and now Ecumenical Patriarch, Bartolomaios which decided the
following:
a) It was admitted that all the Orthodox Churches wanted to solve the problem of the Orthodox Diaspora
as soon as possible and in accordance with the Orthodox ecclesiology and the canonical tradition
and practice of the Orthodox Church.
b) It was realized that in the present phase it is not feasible for historical and pastoral reasons to move
immediately to the strictly canonical order of the Church with regard to this matter.
c) It was decided that a state of transition to the strict canonical solution should be proposed and applied
before the convocation of the Holy and Great Council which will then be able to reach a canonical
solution of the problem.
d) This state of transition should consist of the creation of episcopal conferences in areas to be decided
by the Committee.
e) These episcopal conferences will consist of the bishops of the area who are in communion with all the
Orthodox Churches, and will be presided by the first of the bishops belonging to the Church of
Constantinople, and wherever such a bishop does not exist by the next one according to the Diptychs.
f) The task of these conferences would be to promote and manifest the Orthodox unity in that area by
undertaking common action in pastoral matters, theological education and in common representation of
the Orthodox Church towards the non-Orthodox Christians of the area. And:
g) The decisions of the Conferences will be taken by majority vote.
The task of defining the geographical areas in which the episcopal conferences would be created was
left for the next Inter-Orthodox Preparatory Committee which met in Chambsy in 1993 under the
54
chairmanship of the late Metropolitan Chrysostomos of Myra (who became later the Metropolitan of
Ephesus). According to the decision-proposal of the Committee episcopal conferences would be created in
eight areas (North and Central America, South America, Australia, Great Britain, France, Benelux, Austria
and Italy, and finally Germany). The bishops who have under their jurisdiction parishes in more than one of
the above areas would be members of all the assemblies in the areas in which they have parishes.
In addition to this, the Committee decided to form a special group of experts in Canon Law who would
draft the rules and regulations governing the episcopal conferences. These will be submitted to the next
Preconciliar Panorthodox Commission for approval.
According to the rules governing the procedure of the preparation of the Holy and Great Council, the
above decisions of the Inter-Orthodox Preparatory Committee had to be submitted for consideration to the
Holy Synods of the autocephalous Churches who should decide whether the item was mature to be referred
to the Preconciliar Panorthodox Commission for final approval. This was done, and the Churches decided
that the preparation of the subject of the Diaspora could go to the Preconciliar Panorthodox Commission
for approval with the exception of two decisions on which certain Churches (mainly Russia and Poland)
expressed reservations, namely the presidency of the episcopal assemblies by the hierarch of the
Ecumenical Patriarchate, and the provision that the decisions of the episcopal assemblies should be reached
by majority vote. The above mentioned Churches proposed that the presidency of the episcopal assemblies
should be exercised either by election or by rotation, while the decisions should be reached by unanimity
and not by majority vote. These two points should be discussed and agreed upon by the Preconciliar
Panorthodox Commission which would also discuss and approve all the rest of the decisions of the
Preparatory Committees concerning the Diaspora.
Thus, the first judgment and approval of all aspects of the thorny issue of the Orthodox Diaspora was
left for the Fourth Preconciliar Panorthodox Commission. Owing to the controversy between the Churches
of Constantinople and Moscow concerning the participation of the Church of Estonia in the Panorthodox
bodies the Fourth Preconciliar Conference could not be convened until finally the Synaxis of the Orthodox
Primates at Phanar in 2008 decided, at the suggestion of the Ecumenical Patriarch, that only the
autocephalous and not the autonomous Orthodox Churches may participate in the Inter-Orthodox and the
Panorthodox bodies. This excluded Finland and Estonia from such participation thus opening the way for
the convocation of the Fourth Preconciliar Panorthodox Commission.
On the day of Pentecost of 2009 the Commission met in Chambsy under the presidency of Ioannis
Zizioulas. The task was awesome and the prospects for success almost non-existent. The fact that,
according to the rules, any Church could veto the decisions could easily lead to an impasse. Appeals by the
chair for unanimity would not be fruitful without private and behind the scenes consultations. Finally, with
the help of the Holy Spirit, the two thorny problems, namely the question of the presidency of the episcopal
assemblies and that of the way of reaching decisions were solved. Presidency of the episcopal assemblies
should always be the prerogative of the hierarch of Constantinople in the area, and only in cases when such
a hierarch did not exist, the presidency would go to the most senior bishop according to the order of the
Diptychs. With regard to the way of reaching decisions, it was agreed that decisions should be made
unanimously and not by majority vote. With this compromise the Fourth Preconciliar Panorthodox
Commission signed the following text of agreement which should be presented in its official French edition
(the official languages were Greek, Russian and French):
Convoque par Sa Saintet le patriarche cumnique Bartholomaios, avec le consensus de Leurs

Batitudes les primats des trs saintes Eglises orthodoxes exprim au cours de leur Sommet au Phanar en
octobre 2008, la IVe Confrence panorthodoxe prconciliaire sest runie au Centre orthodoxe du
Patriarcat cumnique Chambsy, du 6 au 13 juin 2009, sous la prsidence de Son Eminence le
mtropolite Jean de Pergame, dlgu du Patriarcat cumnique.
Cette Confrence, laquelle toutes les trs saintes Eglises orthodoxes autocphales ont t invites et se
sont fait reprsenter, a examin la question de l'organisation canonique de la Diaspora orthodoxe.
Conformment larticle 16 du Rglement des Confrences panorthodoxes prconciliaires, elle a discut
les documents affrents labors en 1990 et 1993 par la Commission interorthodoxe prparatoire et soumis
elle, documents quelle a modifis et approuvs comme suit:
1) a) Il a t constat que toutes les trs saintes Eglises orthodoxes ont la volont unanime que le
problme de la Diaspora orthodoxe soit rsolu le plus rapidement possible et que celle-ci soit organise
conformment l'ecclsiologie orthodoxe, et la tradition et la praxis canoniques de lEglise orthodoxe.
b) Il a t aussi constat que durant la prsente phase il n'est pas possible, pour des raisons historiques et
pastorales, de passer immdiatement lordre canonique strict de l'Eglise sur cette question, cest--dire
quil y ait un seul vque dans un mme lieu. Pour cette raison, elle est arrive la conclusion de proposer
la cration d'une situation transitoire qui prparera le terrain pour une solution strictement canonique du
problme, sur la base des principes et des directives dfinis ci-dessous. Cette prparation ne devra pas
excder la date de convocation du futur saint et grand Concile de lEglise orthodoxe, de sorte que celui-ci
puisse procder une solution canonique du problme.
2) a) La prsente Confrence propose que, pour la priode transitoire o la solution canonique de la
question sera prpare, soient cres (ou tablies) dans chacune des rgions dfinies ci-dessous des
56
Assembles Episcopales runissant tous les vques reconnus canoniques de cette rgion, qui
continueront tre soumis aux mmes juridictions canoniques quaujourdhui.
b) Ces assembles seront composes de tous les vques de chaque rgion, qui se trouvent en communion
canonique avec toutes les trs saintes Eglises orthodoxes et seront prsides par le premier parmi les
prlats relevant de lEglise de Constantinople et, en labsence de celui-ci, conformment lordre des
diptyques. Elles auront un Comit excutif form des premiers hirarques des diverses juridictions qui
existent dans la rgion.
c) Ces Assembles piscopales auront pour travail et responsabilit de veiller manifester lunit de
l'Orthodoxie et dvelopper une action commune de tous les orthodoxes de chaque rgion pour remdier
aux besoins pastoraux des orthodoxes vivant dans la rgion, reprsenter en commun tous les orthodoxes
vis--vis des autres confessions et lensemble de la socit de la rgion, cultiver les lettres thologiques et
lducation ecclsiastique, etc. Les dcisions ces sujets seront prises lunanimit des Eglises
reprsentes dans lassemble de la rgion.
3) Les rgions dans lesquelles des assembles piscopales seront cres, dans une premire tape,
sont dfinies comme suit:
i. Amrique du Nord et Amrique Centrale.
ii. Amrique du Sud.
iii. Australie, Nouvelle Zlande et Ocanie.
iv. Grande Bretagne et Irlande.
v. France.
vi. Belgique, Hollande et Luxembourg.
vii. Autriche.
viii. Italie et Malte.
ix. Suisse et Lichtenstein.
x. Allemagne.
xi. Pays Scandinaves (hormis la Finlande).
xii. Espagne et Portugal.
Les vques de la Diaspora, qui rsident dans la Diaspora et ont des paroisses dans plusieurs rgions,
seront aussi membres des assembles piscopales de ces rgions.
4) Ces assembles, qui sont constitues sur dcision de la prsente Confrence, sont charges de
complter les dtails du rglement de leur fonctionnement approuv par elle (la Confrence) et appliquer
celui-ci le
plus rapidement possible et, certainement avant la convocation du saint et grand Concile.
5) Les Assembles piscopales ne privent pas leurs vques membres des comptences de caractre
administratif et canonique, ni ne limitent les droits de ceux-ci dans la Diaspora. Les Assembles
piscopales visent dgager la position commune de lEglise orthodoxe sur diverses questions. Cela
nempche nullement les vques membres, qui continuent de rendre compte leurs propres Eglises,
dexprimer les opinions de leurs Eglises devant le monde extrieur.
6) Les prsidents des Assembles piscopales convoquent et prsident toutes les runions communes
des vques de leur rgion (liturgiques, pastorales, administratives, etc.). Quant aux questions d'intrt
commun qui, sur dcision de lAssemble piscopale, ncessitent dtre examines lchelon
panorthodoxe, le prsident de celle-ci se rfre au Patriarche cumnique pour que suite soit donne selon
la pratique panorthodoxe en vigueur.
7) Les Eglises orthodoxes sengagent ne pas procder des actes pouvant entraver le processus
susmentionn destin rgler de faon canonique la question de la Diaspora et feront tout leur possible
pour faciliter le travail des Assembles piscopales et pour rtablir la normalit de lordre canonique dans
la Diaspora.127
1. As it is stated already in the first paragraphs of the Decision, the will of the Orthodox Churches is to
return finally to the strict canonical situation of one bishop in each city in accordance with canon 8 of I
Nicaea. This is theoretically satisfactory, as it implies a recognition that the existing situation is basically
anomalous and unacceptable from the ecclesiological and canonical point of view. In this way the Orthodox
Church has avoided falling into ecclesiological heresy admitting that the present situation is tolerated by
reasons of a sort of economy and is not justifiable ecclesiologically.
2. The expression in paragraph 1a of the Decision that the return to the strict canonical situation must
be realized as soon as possible understood in combination with paragraph lb in which the hope is stated
that the Holy and Great Council may arrive at a canonical solution of the problem indicates the
expectation of the Commission that the Council will decide in favour of the application of the principle
one bishop in each city. However, such an expectation would appear to be too optimistic, particularly if
the Council were to take place in the foreseeable future. The so called mother Churches do not yet seem
to be ready to emancipate their jurisdictions in the Diaspora in the near future having all sorts of reasons to
prefer the prolongation of the status quo. What seems to be more likely is that the Council, if convened in
127
Cf. Ioannis Zizioulas, loc.cit., p. 11.
58
the near future, will decide to maintain the present transitory state while reiterating its theoretical
adherence to the canonical principle.
3. The deeper reasons for the reluctance of the mother Churches to emancipate their parishes in the
Diaspora seem to relate to the emergence and growth of the spirit of nationalism among the Orthodox
Churches. This is particularly noticeable in the Russian and even more so in the Romanian Church. The
fact that there is a growth in the number of immigrants from these Churches to the West is going to play a
negative role in any attempt to restore the canonical order in the Diaspora. Sometimes the temptation is
very strong to use the Diaspora Churches for the promotion of nationalist interests, in certain cases in close
cooperation with the respective states. This can be a serious obstacle to the canonical normalization of the
Orthodox Diaspora. The solution of the problem of Diaspora in the canonical way will decide in the end the
question whether the system of ecclesiastical autocephaly can work without leading to ethnophyletism
condemned as a heresy by the Synod of 1872. For the moment there are reasons to worry that autocephaly
may easily become a vehicle of nationalism.
4. The decision to create local episcopal assemblies as an intermediary state before the canonical
normalization of the Diaspora seems to be wise and may prove to be useful. These assemblies have already
been formed and seem to work well in all areas of the Diaspora. The philosophy behind this institution is,
that by working together the Orthodox bishops will present an image of Orthodox unity to the world and at
the same time develop gradually a consciousness of locality with regard to their pastoral responsibilities.
This will make them realize that besides and above their function as representatives of their mother
Churches in the Diaspora the bishops are pastors of faithful who live and work in a cultural and social
milieu different form that of their mother Church and need special pastoral care. In addition to all this, the
Orthodox bishops of the area will become more conscious of the fact that they have to develop good
relations with the non- Orthodox Christians, even with people of other religions, something the mother
Churches do not usually experience living in most cases in a homogeneous Orthodox context. Thus, it is
hoped that the episcopal assemblies will contribute to the development of an ecumenical spirit in the
Orthodox Diaspora which will benefit the ongoing theological dialogues and ecumenical co-operation. The
non- Orthodox Churches will no longer be perplexed as to who represents the Orthodox Church in a
particular area, the episcopal assembly through its president being from now on the official voice of the
Orthodox Church in that place.
5. The crucial question is if and how the institution of the Episcopal assemblies can lead to the
canonical normalization which requires one bishop only
in the same city. How can the assembly of many bishops lead to a local Church with one bishop?
In the present circumstances it is difficult to give an answer to this question. The Church of
Constantinople has not given up in principle its claim that according to canon 28 of Chalcedon the Diaspora
is part of its own canonical territory. When Patriarch Meletios decided in 1923 to take over from the
Church of Greece the Greek Diaspora of America he did so by appealing to this canon. The same canon
was invoked a couple of decades ago when Constantinople strongly opposed the establishment of an
Exarchia by the Patriarchate of Jerusalem in Australia. The bishops in the Diaspora who do not belong to
the Ecumenical Patriarchate are not regarded officially by Constantinople as bishops of a certain place but
as bishops in that place; their presence being as it were tolerated by some kind of oikonomia until the
problem of the Diaspora receives its canonical solution.
Given the fact that not all the Orthodox Churches interpret canon 28 of Chalcedon in the same way as
Constantinople and the rest of the Greek-speaking Churches it is difficult to see how the episcopal
assemblies can be transformed in such way as to lead to a single bishop in each city. The future is literally
left to God and His Holy Spirit. If God wills it, new local Churches may emerge gradually in the Diaspora
whose bishops may be elected locally and not appointed by the mother Churches, as is the case now, having
a canonical link with the rest of the Orthodox local Churches via the first of the Orthodox Churches, i.e.
Constantinople (as a kind of Metropolitanates) until eventually they become canonically independent
(autonomous or autocephalous). This, I repeat, is left entirely to the hands of God, the episcopal assemblies
serving simply as instruments for the formation of local Churches in the Diaspora, which is the only healthy
basis on which we can hope to arrive at a canonical solution of the problem of the Orthodox Diaspora.
There were presented the recent developments that took place at a Panorthodox level concerning the
subject of the Orthodox Diaspora. It is clear how difficult the solution of this problem is, given the
differences that exist among the autocephalous Orthodox Churches as to the territory which lies outside
their fixed canonical borders. What emerges as very positive is first of all the recognition by all the
Orthodox Churches of the canonical anomaly of the present situation and of the need to correct it according
to the ecclesiology and the canonical tradition of the Church. As long as this recognition exists the danger
to fall into ecclesiological heresy is removed. If the will for the canonical norm is there, God will provide
for that in spite of our human weakness and fallibility.
The Fourth Preconciliar Panorthodox Commission in Chambsy constitutes a breakthrough in the
history of this thorny issue. By unanimously agreeing to establish local episcopal assemblies presided by
the representative of the first Orthodox Church according to the order of the Diptychs the Commission and
withit the whole Orthodox Church has paved the way for a canonical solution of the problem of the
Diaspora on the basis of the local Church which is the canonical cell of Orthodox ecclesiology.
60

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Emanuel Tval, New Challenges for Nation States and New Opportunities for Regional and Global

Development. International Private Law Stances

MIGRATION AND THE NEW CHALLENGES FOR NATION STATES

1.1 Historical perspective on migration

1.2. The migration to Europe

1.3. Theoretical and terminological aspects

objective definitions of migration. What follows is a more common categorisation of international

1.4 International migration theories

When globalization is seen not as a narrative of complete domination but as a narrative of

The migration in the concerns and legislation of the European Union

Directive 2003/86/EC regulating the family law at reunification

Directive 2003/109/EC regulating the problem of long duration residence

2.2. Migration to Europe

2.2.1. Migration to Europe after 1945

1. Post-colonial migration and migration in lucrative purposes (1945-1975), ex. Gastarbeiter38 in

According to the Eurobarometer, the population of Europe on 1 st of January 2007 was of

The origin countries

2.2.2. Case study: Germany

3.1. The crisis of identity in the modern societies Antigypsism problems

3.1.1. Factors of stability in the process of emigration

3.1.2. Social Integration of migrants (Romanian case)

3.2. Diaspora in the age of globalization

3.4. Diaspora and Identity

FROM RELIGION TO ETHNICITY RELIGION BASED DIASPORA IN EUROPE

1. The Diaspora in the Bible

It is too small a thing that You should be My Servant

1.2 In the New Testament

2.2. Canon 28 of the Fourth Ecumenical Council, Chalcedon 451

2. 3. Discussions regarding the diaspora theme in the twentieth century

Steps towards a solution

Convoque par Sa Saintet le patriarche cumnique Bartholomaios, avec le consensus de Leurs

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