Cooperation in the shadow of regulatory competition: the case of asylum legislation in Europe

Traditional analysis considers that the granting of protection to refugees is an international public good, and thus explains both the heterogeneousness in refugee protection in Europe and the spiral that has hardened the EU Member States’ asylum legislation from the mid-1980s onwards as the result of free riding in the provision of the good. In contrast, the paper considers that the heterogeneousness in refugee distribution is best explained by the joint product model and that the spiral of restriction is best explained by the common pool resource model and regulatory competition theory. The paper explains, and gives empirical evidence of the emergence and development of a competitive game among the EU Member States, and shows the result and the consequence of this upon cooperative attempts among States.     

Adapting to Changing Legal Frameworks: Mozambican Refugees in South Africa

This paper argues that legal frameworks to manage immigrationand refugee rights need to be understood from below, namely,how they are interpreted and used locally by the immigrantsaffected and by the host communities, in their specific historicalcontext. Using the case of Mozambican refugees in South Africa(1985–2006), the paper outlines why many of the policiestargeted at or affecting this group of immigrants have had counterproductiveeffects (from the perspective of policy makers) because of thedisjuncture between the goals and assumptions of the legal frameworkand the reality experienced and desired by the refugees. Thesituation of Mozambican refugees in South Africa over the pasttwenty years has been shaped by a radically changing legal context.These changes are charted and matched with how Mozambican refugees,especially those settled in the rural border areas, have adaptedto, made use of and subverted the various legal constraintsand opportunities provided by the South African state and itslocal representatives.     

Who are Refugees?

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as ‘refugees’, and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped ‘in place’, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition.     

“The Right to Self-determination”: Right and Laws Between Means of Oppression and Means of Liberation in the Discourse of the Indigenous Movement of Ecuador

The 1970s and 1980s meant an ethnic politicization of the indigenous movement in Ecuador, until this moment defined largely as a class-based movement of indigenous peasants. The indigenous organizations started to conceptualize indigenous peoples as nationalities with their own economic, social, cultural and legal structures and therefore with the right to autonomy and self-determination. Based on this conceptualization, the movement developed demands for a pluralist reform of state and society in order to install a plurinational state with wide degrees of autonomy and participation for indigenous nationalities. A part of those demands was the double strategy to fight for legal pluralism while already installing it at the local level. Even if some degrees of legal pluralism have been recognized in Ecuador since the mid-1990s, in practice, the local de facto practice prevails until today. Another central part of the demand for plurinationality is the representation of indigenous peoples in the legislative organs of the state, developing since their first appearance in the 1940s in a complex way. This article will analyze the development of right-based demands within the discourse of the indigenous movement in Ecuador, the visions of the implied state-reform and the organizational and political background and implication they have. Based on an analysis of the central texts of the indigenous organizations, conceptualizations of rights and laws and their appropriation within an autonomist discourse and a local practice will be highlighted.     

Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean Refugees in The Gambia

It is rare indeed that the forced movement of people will nothave an economic dimension. Economic issues related to the movementof people have generally been viewed as beyond the scope ofthe debate on the international status and protection of refugees.Instead, ‘economics’ and ‘refugees’when heard together, or even in loose association, have evokedthe pejorative images of those who move to seek a ‘betterlife’. While recognising on the one hand the inevitabilityof economic dimensions to refugee movements, many advocatesfor refugees have traditionally taken great care in their policyand advocacy work to downplay the economic element of the complexmatrix of motivations that lead refugees and other forced migrantsto move. This paper takes a different approach. It promotesthe right to work, a social and economic right, as integralto protection and to all durable solutions. It explores itsrelevance, and indeed its significance, as a matter of law,policy and practice to the lives of refugees and those responsiblefor their protection, including their hosts. After all, ‘[d]espitethe statistical existence of unemployment in every country inthe world, work continues to be "an essential part of the humancondition"’. In addition, the paper examines the importanceof a rights-based analysis of work in understanding its relevancein the field both of international and national protection.In doing so, it explores the connections between work and theright to work and the three durable solutions. It acknowledgesthat social and economic conditions and inequities are oftenamongst the root causes of conflict which then lead to the failureof national protection and precipitate flight.     

Tattoos of the Marielitos

Tattoos on Cuban refugees, particularly those who entered the United States during the Mariel Boatlift of 1980, have been associated with both criminal activity and religious affiliations. In an effort to understand better the significance and meanings of these tattoos, a series of interviews (initially informal, followed by a formal survey instrument) were conducted. Examples of the various tattoos were gleaned from the files of the Dade County Medical Examiner Department. In general, tattoos on Cuban refugees signify prior incarceration in Cuban prisons, usually do not reflect criminal specialization, and often reflect affiliation to Afro-Caribbean cults (especially Santeria, Palo Mayombe, and the Abakua Secret Society). In addition, many tattoos reflect the values and attitudes of Cuban jail subculture.     

The death penalty: Down but not out in the summer of '02

This paper discusses questions of borders, communities, and refugees through an examination of the work of film director Theo Angelopoulos, in particular his so‐called “Balkan trilogy,” which includes Eternity and a Day. In these films, Angelopoulos looks at the nature of borders and communities and at what they do to people in general and refugees in particular. I argue that the refugees cannot be placed in any straightforward fashion according to the logics of political sovereignty and national divisions. They are a heterogeneous excess from the constitution of borders and divisions, yet by making visible this heterogeneity, Angelopoulos shows the contingency of political and national borders. As a consequence, the critique of the injustices resulting from existing borders must start from what is heterogeneous to them. Only in this way is it possible to transform existing structures. However, this does not mean that politics should aim simply at the elimination of borders and exclusion. Rather, we must accept the ineradicability of borders and exclusion while contesting any particular ones.     

The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan be sustained on the basis of the agreements referred to.In addition it is argued that the current ‘profiling’exercise of UNHCR, even while presumably beneficial for themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

Youth Gangs — A Special Problem

Beginning in the mid-1980s, some youth gangs with origins in the large urban centers of Los Angeles, Miami, Chicago, Detroit, and New York, became major criminal entrepreneurs in the supply of illicit drugs. In a very short time, many of these gangs have developed intrastate and interstate networks for the purpose of expanding their highly profitable participation in the state, regional, and national illegal drug sales market. Significant levels of violence and related criminal behavior have accompanied this phenomenon. Youth have always been distributors and sellers of drugs within their local peer groups, whether these groups were informal or organized as “gangs.” Most youth who are involved with illicit drugs have not had direct contact with drug dealers. Their street, school, or neighborhood suppliers have been friends and acquaintances. The onset of domestically-produced drugs or drug compounds presented an opportunity for youth to be in control of the supply. Domestically grown marijuana represented such an opportunity. Clandestine laboratory-produced methamphetamine and PCP increased it. And, finally, domestically-manufactured “crack” or “rock” cocaine opened the floodgates for serious youth participation in the huge profits available through illicit drug trafficking.     

Notice of availability of funding for alternative projects, known as Wilson/Fish Projects, to implement alternative means of providing interim financial assistance, medical assistance, social services, and case management to refugees and Cuban and Haitian entrants. Office of Refugee Resettlement (ORR), ACF, DHHS

The Office of Refugee Resettlement (ORR) announces that competing applications will be accepted from public and private non-profit organizations under a standing announcement for Wilson/Fish projects which propose alternative approaches to serving refugees. The purpose of an alternative project is to provide integrated services and cash assistance to refugees in order to increase refugees' prospects for early employment and self-sufficiency, reduce their level of welfare dependence, enhance acculturation, and promote coordination among voluntary resettlement agencies and service providers. Projects will be accepted under either of two categories: (1) Projects to establish or maintain a refugee program in a State where the State is not participating in the refugee program or is dropping out of the refugee program or a portion of the program; and (2) projects to provide an alternative to the existing system of assistance and services to refugees. Funding is available to these projects under the "Wilson/Fish" authority.     

The Social Organisation of Migrant Smugglers in Turkey: Roles and Functions

Thousands of irregular migrants and refugees are transported from conflict areas and/or underdeveloped countries to wealthy Western states. These transfers are usually facilitated and arranged by migrant smuggling organisations. This paper reflects part of a comprehensive research project on irregular migration and migrant smuggling in Turkey and examines the structure and networks of smugglers operating in Turkey. Based on face-to-face interviews with smugglers (N?=?54), it aims to shed light on migrant smugglers, smuggling structures and their organisations in Turkey. The findings suggest that the migrant smuggling business is composed of networks established at the local, national and international levels. These are structured on an ad hoc basis and are often adaptable to any changes and opportunities that may arise.     

Separated Children: A Comparison of the Treatment of Separated Child Refugees Entering Australia and Canada

Separated children are in a uniquely vulnerable situation. Notonly are they in fear of persecution but they have been separatedfrom their families. They are seeking multifaceted protections.Such children need a country to protect them from further persecution,a caregiver to nurture them and fulfil the family role and asociety that will foster their social and intellectual growth.This article analyses the treatment of separated child refugeesin the context of international human rights law as it relatesto children and from the viewpoint of domestic immigration law.The article bases this analysis on a comparison of the treatmentof separated child refugees in Australia and Canada. The fundamentalprinciple of the International Convention on the Rights of theChild is that member states should act in the child's best interests.This principle has two important aspects, firstly, that detentionof children should only be used as a last resort and, secondly,that child refugees should enjoy the right to seek asylum. Thearticle examines the domestic law of both Australia and Canadawith a view to determining how these two aspects are appliedto unaccompanied children.     

The Ethical Health Lawyer: An Empirical Assessment of Moral Decision Making

Writing in 1999, legal ethics scholar Brad Wendel noted that "[v]ery little empirical work has been done on the moral decision making of lawyers." Indeed, since the mid-1990s, few empirical studies have attempted to explore how attorneys deliberate about ethical dilemmas they encounter in their practice. Moreover, while past research has explored some of the ethical issues confronting lawyers practicing in certain specific areas of practice, no published data exists probing the moral mind of health care lawyers. As signaled by the creation of a regular column "devoted to ethical issues arising in the practice of health law" in the Journal of Law, Medicine & Ethics , the time to address the empirical gap in the professional ethics literature is now. Accordingly, this article presents data collected from 120 health care lawyers. Presenting this population with a number of hypothetical scenarios relating to how they would respond when confronting an ethical dilemma without an obvious solution or when facing a situation in which their personal values were in tension with their professional obligations, this article represents a first step toward better understanding how lawyers who practice in health care settings understand and resolve the moral discomfort they encounter in their professional lives.     

'States Should Not Impose Penalties on Arriving Asylum-Seekers'

[17/03/2008] A minimum of solidarity with those oppressed isto receive them when they are forced to flee. The ‘rightto seek and to enjoy in other countries asylum from persecution’is indeed a key provision in the Universal Declaration of HumanRights. Sadly, this right is not fully observed in parts ofEurope today. Instead, refugees are met with suspicion and toooften even placed in detention. It has to be repeated that some of those who seek to enter Europehave well-founded fear of persecution. They are under threatbecause of their ethnicity, religion, nationality, politicalopinion or membership of a particular social group. Some ofthem have already suffered serious ill-treatment in their countryof origin. They are refugees     

More Norms,Less Justice: Refugees,the Republic,and everyone in between

The paper argues for conflating refugees and internally displaced persons (IDPs) as two sides of a work-in-progress postcolonial state. To be sure, aliens, refugees, IDPs, and stateless persons are separate legal entities. Nevertheless, this fragmented normative regime stands testimony to more laws and less justice. Many Asian states have no domestic refugee law. India, a common law system, takes a case by case approach as refugees are given “temporary shelter on humanitarian considerations”. Ironically, a work-in-progress postcolonial state sustains even de jure citizens as de facto stateless persons; the erstwhile Indo-Bangla enclaves for more than half a century were an apt example. Surely, the raison d’être of international law on refugees is to end human suffering, if needed, by transcending the absence of positive laws. A constitutional and political desire to minimise human suffering alone could cut the rigour of such positivist legal narratives. The Delhi High Court seemingly walked that path in Koul v Estate Officer noting “refugees and IDPs appear to be similarly situated”. Rising terrorism has made states increasingly believe in a security narrative all the same. A simultaneous emergence of a demographic anxiety particularly in India’s North-eastern states increasingly pits aliens and refugees against the domiciled indigenous and tribal people.     

Sequelae to torture. A controlled study of torture victims living in exile

Twenty-eight Turkish refugees living in Denmark were examined by the authors in the period 1984-85. Fourteen of the persons alleged having been tortured in Turkey during the period 1980-83. The remaining 14 persons reported that they had not been tortured and thus acted as controls. All the testimonies were found valid according to a method previously used by us. The most common forms of violence reported were blows and electrical torture. Blindfolding, solitary confinement and threats were also frequent. At the time of examination the main mental complaints were sleep disturbances with nightmares and impaired memory. Emotional lability and concentration disturbances were also frequent. Physically the torture victims suffered from headache, various cardio-pulmonary and muscular pains, dyspepsia and reading disturbances. All reported that they had been healthy before torture. The clinical examination revealed only a few signs related to torture, although examples of minimal scars, fractured or missing teeth, discrete neurological disorders and mental depression were found. The 14 controls had significantly fewer complaints, and almost no abnormalities were found during the clinical examination. The present study clearly demonstrates the traumatic effects of torture.     

Settlement of refugee women and children following the Second World War: challenges to the family

Abstract

Following the Second World War, refugees that were displaced as a result of conflict became a global concern. Many of these displaced persons were resettled under the auspices of the International Refugee Organization. Large numbers of European displaced persons settled in Australia, with significant numbers living in Queensland. The wartime and migration experiences of refugees have the potential to influence settlement experiences, and for displaced persons who settled in Queensland, these prior experiences continued to resonate within the family throughout the settlement process. Many refugee children became separated from their families, and while some were reunited, the process was lengthy and not without its difficulties. The effect of separation and loss experienced by these families dominated the post-war experience. It presented challenges to mothers, children and families as they negotiated the uncertainty of displacement and the potential for resettlement, and affected their approaches to separation and reunification. The separation and reunification of children and families played a significant role in the settlement process, influencing interactions with Australian organisations and the development of familial and social network connections during settlement. The legacy of conflict and separation continued to resonate within families and influenced perspectives of the ongoing settlement process for child refugees.     

The real lessons of Japanese research consortia

US consortia were right to look to Japan back in the mid-1980s for a model, but details on how Japanese achieved success were scarce and the Americans did not look closely enough. The Japanese have developed an effective way to use competitive forces to promote innovation in a consortium. The US must put industry in the lead in order to develop programs that reflect broad strategic priorities. And industry associations must play a more active role in diffusing the innovations developed by the consortia.     

The ‘unwanteds’ and ‘non-compliants’: ‘unsupported mothers’ as ‘failures’ and agents in Australia’s migrant Holding Centres*

Abstract

Ideas of assimilated citizenship are inherently gendered and during Australia’s post-World War Two migration boom they were deeply and explicitly invested in marriage, children and domesticity. In this period of social conservatism and economic boom, assimilation rhetoric functioned as a reassuring mirror for the host population, promoting the dream of prosperous family life as the ultimate aspiration for refugees and migrants. The role of immigration Holding Centres within this vision was to provide a context in which migrants and refugees could take their first steps towards accomplishing this dream. These Centres of necessary temporary residence were designed as sites of transition towards autonomous, assimilated family life. However, those families headed by single mothers, often referred to in government records as ‘unsupported mothers’, had limited opportunities to live up to such images of assimilation, or even to comply with the economic imperatives of the migration scheme that had brought them to Australia. Based mainly on Department of Immigration records, this article demonstrates that despite recognising the long-term economic and social prospects their children represented, government agencies viewed many unsupported mothers as system failures. They attempted to remedy the situation by turning these women into live-in domestic workers, at times placing pressure on them to institutionalise their children in order to facilitate this, thereby prioritising their compliance with economic imperatives over support for their parenting. Within the limited scope of their agency, unsupported mothers responded by attempting to negotiate the terms of their compliance or simply refusing to comply. For the latter group, Holding Centres became a more permanent home. This permanence is read here as a gendered form of resistance to a system that struggled to foster their economic self-reliance without compromising their capacity to be mothers.     

Even Lawyers Get the Blues: Gender, Depression, and Job Satisfaction in Legal Practice

It is an intriguing puzzle that women lawyers, despite less desirable working conditions and blocked career advancement, report similar satisfaction as men lawyers with their legal careers. The paradoxical work satisfaction reported by women and men lawyers obscures a more notable difference in their depressed or despondent feelings. Using a panel study of women and men lawyers practicing in Toronto since the mid-1980s, we find at least three causal pathways through which gender indirectly is connected to job dissatisfaction and feelings of despondency. The first path is through gender differences in occupational power, which lead to differential despondency. The second path is through differences in perceived powerlessness, which directly influence job dissatisfaction. The third path is through feelings of despondency that result from concerns about the career consequences of having children. The combined picture that results illustrates the necessity to include measures of depressed affect in studies of dissatisfaction with legal practice. Explicit measurement and modeling of concerns about the consequences of having children and depressed feelings reveal a highly gendered response of women to legal practice that is otherwise much less apparent. Women are more likely to respond to their professional grievances with internalized feelings of despondency than with externalized expressions of job dissatisfaction. That is, they are more likely to privatize than publicize their professional troubles.