Constructing Migrants' Rights

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Shifting(Paradigms(and(Human(Rights(Innovations(in(Argentine(Migration(and(Refugee( Legislation
Constructing+Migrants+Rights++++++++++++++++++++++
Undergraduate*Honors*Thesis,*Global*Studies**
University*of*North*Carolina*at*Chapel*Hill*
Author:+Kelsey+Jost6Creegan++ + ! Abstract:+This+thesis+examines+the+passage+of+Migration+Law+25.871+&+Refugee+Law+26.165+in+Argentina.+These+ laws+ marked+ a+ sharp+ paradigm+ shift+ in+ Argentinas+ migration+ policy,+ moving+ away+ from+ a+ policy+ crafted+ in+ the+ paradigm+ of+ national+ security+ under+ the+ 1976+ + 1983+ dictatorship+ towards+ one+ centered+ on+ a+ human+ rights+ discourse.+This+project+aimed+to+identify+the+international+and+domestic+factors+that+influenced+this+incorporation+ of+a+human+rights+discourse,+and+to+determine+if+the+socialization+of+human+rights+norms+may+lead+states+not+only+to+ adopt+international+norms,+but+also+to+appropriate+the+human+rights+discourse+and+apply+it+to+internal+policy+not+yet+ regulated+on+the+international+scale.+In+light+of+Argentinas+authoritarian+past,+the+research+also+examined+whether+ political+learning;+may+have+played+a+specific+role+in+this+case.+ + The+ investigation+ consisted+ of+ interviews+ with+ government+ representatives,+ civil+ society+ members+ &+ academics.+ Findings+ indicate+ that+ domestic+ factors+ were+ more+ significant+ than+ international+ factors,+ debunking+ top6down+ models+of+the+diffusion+of+human+rights+discourse.+The+research+reveals+that+a+twenty6year+fight+on+the+part+of+civil+ society+organizations+was+the+key+impetus+in+ultimately+provoking+a+change+in+law.+These+groups+used+themes+of+ history+and+conceptions+of+national+identity+as+rhetorical+tools+in+constructing+arguments+for+a+change.+This+long6 term+effort+was+ultimately+successful,+however,+only+because+of+the+particular+political+climate+created+by+the+2001+ economic+crisis.+Of+particular+import+were+the+effects+that+the+crisis+ had+in+shaking+up+the+political+status+quo+&+ thereby+opening+the+way+for+the+election+of+Nestr+Kirchner,+whose+administration+brought+an+agenda+of+human+ rights+and+Latin+American+regionalism.+ +
Kelsey Jost-Creegan Senior Honors Thesis Curriculum in Global Studies, UNC-Chapel Hill
TABLE OF CONTENTS
ACKNOWLEDGEMENTS!....................................................................................................................!2! ABBREVIATIONS!..................................................................................................................................!4! CHAPTER 1: INTRODUCTION!.........................................................................................................!5! CHAPTER 2: BACKGROUND!.........................................................................................................!14! ARGENTINE POLITICAL CONTEXT!................................................................................................................!14! AUTHORITARIANISM AND DEMOCRACY IN THE 20TH CENTURY!..............................................................!18! HISTORICAL FACTORS: NEOLIBERAL REFORM AND ECONOMIC CRISIS!......................................!21! MIGRATION AND MIGRATION POLICY IN ARGENTINA!.........................................................................!26! REFUGEE!LAW!..........................................................................................................................................................!40! THE FORMATION OF A LAW!...............................................................................................................................!41! CHAPTER 3: LITERATURE REVIEW! ..........................................................................................!43! HUMAN RIGHTS AND STATE SOVEREIGNTY!.................................................................................................!44! HUMAN RIGHTS IN LATIN AMERICA!................................................................................................................!51! HUMAN RIGHTS IN ARGENTINA!........................................................................................................................!54! MIGRANTS RIGHTS AS HUMAN RIGHTS: THE NEXT FRONTIER?!............................................................!62! CHAPTER 4: RESEARCH METHODS!..........................................................................................!70! RESEARCH PARAMETERS!.................................................................................................................................!70! Location!....................................................................................................................................................................!70! Timeline!....................................................................................................................................................................!72! STUDY!.......................................................................................................................................................................!73! Participants!.............................................................................................................................................................!73! Interview format!.....................................................................................................................................................!74! Interview Questions!..............................................................................................................................................!75! Additional Research!.............................................................................................................................................!76! Post-Field Work and Analysis!..........................................................................................................................!77! CHAPTER 5: FINDINGS!....................................................................................................................!78! ACTION AND STRENGTH OF NONGOVERNMENTAL ACTORS!......................................................................!79! HISTORY AND CONCEPTS OF IDENTITY!..........................................................................................................!95! TIMING AND HISTORICAL CONTEXT!..............................................................................................................!106! CHAPTER 6: CONCLUSIONS!.......................................................................................................!131! APPENDICES!......................................................................................................................................!138! APPENDIX 1!.........................................................................................................................................................!138! APPENDIX 2!.........................................................................................................................................................!143! APPENDIX!3!..........................................................................................................................................................!144! APPENDIX 4!.........................................................................................................................................................!146! BIBLIOGRAPHY!...............................................................................................................................!150!
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ACKNOWLEDGEMENTS This project would not have been possible without the help of so many people, to whom I am truly grateful. The process of investigating, writing, and editing this thesis has truly been a culmination and a highlight of my undergraduate career at UNC-Chapel Hill, and I am forever indebted to those who made this wonderful experience possible. Firstly, I quite simply cannot express the depth of my gratitude to my advisor, Dr. Niklaus Steiner, and to my second reader, Dr. Martin Sueldo. In the way that Dr. Steiner approaches thesis advising is evident his love and dedication to teaching and, particularly, to the teaching of undergraduates. I am so grateful for the gift of his time, for his patience with my procrastination and his thoughtful listening to my many rambling thoughts, as I struggled to articulate ideas that were of yet mere seedlings. I am so grateful for the help of Dr. Sueldo in designing and implementing my research; without his insight and assistance in making sure that my project was linguistically and culturally attuned to the specific site of Argentina, I am positive that my interviews would not have been nearly as successful, and his insight in analyzing my results was extremely helpful. I also thank Dr. Michal Osterweil for her dedicated instruction of the Global Studies thesis seminar. Her kind guidance was instrumental to the development of all of our projects. Her patience and understanding of the challenges that this process can present made it much less overwhelming. I am also grateful to the comments and critiques of my peers in Global Studies, as their thoughtful reading of my drafts molded the project into what it is today. I owe a particular debt to my thesis buddy, Lindsay Rosenfeld, and to Elizabeth Willis: for hours spent working in solidarity, for all the times that they listened to my babble, for their true investment in my work and their genuine excitement when I came across something I thought was of value to the project, even when I could not yet articulate why. Whats more, for their laughter, hugs and smiles, all of which got me through the rough spots and stress. I am also grateful to Cora Went, who as my roommate in Buenos Aires served as a friend, confidante, travel buddy, and email-editor. I am so grateful to all of my interviewees, who generously donated their time and their knowledge to this project. I was overwhelmed by peoples willingness to take the time to contribute to my research. I owe a particular gratitude to the staff and former staff of the Fundacin Comisin Catlitca Argentina de Migraciones, as it was my internship at this organization that sparked the idea for this project. I must also thank the staff of the Global Detention Project, who taught me research skills that were integral to my work. I am grateful to the staff of The Argentina Independent, who allowed me to explore my research while working as a journalism intern with their paper. I am also forever indebted to the numerous teachers and professors who have touched my
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life in a variety of ways. In addition those mentioned above, numerous professors played an integral role in helping this project to develop. I am grateful to Dr. Hannah Gill, as through ethnographic research in her class on Latino migrant perspectives I discovered my methodology for the research in this project. I am also grateful to many professors of the UNC Spanish department, who have helped me to develop Spanish skills and greater appreciation and understanding for the cultures of Latin America. I am so thankful for the support of the Morehead-Cain Foundation, through which I have studied at Carolina, completed internships with the FCCAM, GDP and The Argentina Independent, and returned to Argentina in the winter of 2012 to finish interviews. It goes without saying that the support of the Morehead-Cain has opened doors that never would have been available to me otherwise, but it is more than that: the unfailing faith and trust of the staff and incredible support in projects I proposed gave me the permission to dream of and then realize - adventures that I wouldnt have otherwise believed possible. At the core of these thanks lies the deepest thanks of all, that to my incredible family. To my parents, who have selflessly worked to provide me with a never-ending range of opportunities and experiences. Mom and dad, I will never find the words to express my immense gratitude for everything you have given me. A foundation of love, kindness and trust that made me believe no dream was ever too big. A childhood, adolescence, and young adulthood splitting at the seams with incredible educational opportunities and unimaginable travel experiences. And this year, a kind ear whenever I most needed it. These gifts you have given me will stay with me forever. To my brother, Nick; I am so lucky to have a sibling I can call a best friend. The three of you have supported me throughout this project, listened to my breakdowns, discoveries and excitement, and believed that I could do it even when I was sure I could not. I am also grateful to my grandparents, whose sacrifices paved the way to the opportunities and gifts I have today. Mueti and Atti, your house full of books and incredible wealth of knowledge have inspired in me an unquenchable thirst to continue studying, in the hopes that someday I will be able to claim a sliver of the knowledge that you both have accumulated over a lifetime of constant curiosity. And to the rest of my family, who has always supported me and in this project has patiently listened to my confusing recounts of how my research was forming: you have all played a role in this project, and for that I am so grateful.
Thanks'to'the'many'cafs'that'allowed'me'to'sit'for'hours'with'a'caf'con'leche'and' medalunas!''(photo'taken'by'author)'
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ABBREVIATIONS
Abbreviation CELS
Full Name (English and Spanish) Centro de Estudios Legales y Sociales Center for Legal and Social Studies
CEJIL
Centro por Justicia y Derecho Internacional Center for Justice and International Law
CTA
Centro de Trabajadores Argentinos Center for Argentine Workers
DNM
Direccin Nacional de Migraciones Argentine National Migration Bureau
FCCAM
Fundacin Comisin Catlica Argentina de Migraciones Fundation of the Argentine Catholic Comission for Migration
IACHR
Inter-American Commission on Human Rights Corte Interamericana de Derechos Humanos
IOM
International Organization for Migration Organizacin internacional para la migracin (OIM)
OAS
Organization of American States Organizacin de Estados Americanos
UNHCR
United Nations High Commissioner for Refugees Alto Comisionado de Las Nacionaes Unidas para Refugiados (ACNUR)
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CHAPTER 1: INTRODUCTION The development of migrants rights is one of the last frontiers in the evolution of international human rights standards. Since the end of World War Two, the international human rights regime has gradually grown to encompass a broader understanding of human rights and to better delineate the distinct needs of different populations. The notion of universality in the international human rights regime would appear to transcend national boundaries and questions of citizenship. Because human rights norms evolved within the nationalistic context, however, they were initially crafted in the paradigm of the nationcitizen relationship. Increasing migration flows, through which citizens are displaced from their nation of belonging, have thereby presented one of the greatest challenges to a truly global realization of human rights standards. As Javier de Lucas suggests: Tackling the question [of migration and human rights] forces us to undertake a sort of test about the consistency of our conception of human rights and the political (and social) will to take those rights seriously, speaking of this penultimate theoretical and practical human rights frontier that is the question of migrants rights (de Lucas, p. 219).1 Ironically, the very states that have been central to the formation and promotion of the international human rights regime often present some of the most restrictive migration policies. As globalization has eased both communication and transportation, global disparities have become more evident and potential migrants have greater mobility. In response to growing waves of migration, however, many liberal democracies have implemented increasingly restrictive migration policies that frame the issue of migration as
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1
All translations of Spanish sources, unless otherwise noted, are the work of the autor.
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a national security concern. Migration detention and deportation - often without judicial review and/or sentencing limits and limited or barred access to public services have become the hallmarks of the migration policies of modern liberal democracies in the Global North. These increasingly restrictive migration policies have not stopped the flow of migrants, and have instead resulted in the growth of large populations of undocumented migrants in many migrant-receiving countries. Migrants particularly those lacking documentation and asylum seekers have come to be some of the most vulnerable populations in the global community2. At the international level, the issue of migrants rights remains largely unresolved. The Convention on the Rights of All Migrant Workers and Members of Their Families took over twenty years to accumulate the number of ratifications necessary for it to enter into force, the longest amount of time of any international human rights treaty to date. And even now, the vast majority of countries party to the convention are migrant source countries, with most significant migrant destination countries refusing to subject themselves to the treaty norms. Increasing concerns over the treatment of migrants in destination countries have provoked strong responses from source countries. The North-South dichotomy of many migration patterns with countries in the Global North serving as destination
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2
For the purpose of this thesis, Undocumented migrants refers to both those migrants who initially entered the country with authorization but whose authorization has since expired, and those who enter the country without authorization. Asylum seekers refers to those migrants who are physically present within the state territory either with or without state authorization and who request authorization to remain in the country for humanitarian reasons, on the basis that they meet the definition of a refugee as laid out by the 1951 Refugee Convention. Refugees refers to those asylum seekers whose applications have been accepted and have been granted refugee status by the destination country.
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countries and those in the Global South acting as source countries3 has created further controversy, as source countries argue that migration concerns cannot be separated from those of global economic disparities. The situation is further complicated by the reality that in an increasingly global world, a growing number of countries can no longer be classified as either a destination country or a source country. Instead, these nations lie at the crossroads of migration, serving as both a destination often for regional migrants and a source often for intercontinental migrants. Within the global discussion of migration, these nations have an interesting role to play, as they are affected both by nationalistic questions of sovereignty regarding the migration arriving at their shores and by normative concerns of the treatment of migrants as it affects their citizens abroad. One country that lies at such an intersection is Argentina. For much of the twentieth century, Argentina was a significant destination country for migration, initially originating from Europe and later increasingly from other Latin American countries. A steady stream of regional migrants continues to enter the country today. Since the 1970s, however, the country has become a source country for migration, as Argentines first fled the military dictatorship of the 1970s and 1980s, and then the economic difficulties of the post-authoritarian period that culminated in the economic crisis of 1999-2002.
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3
In this thesis I will use the term Global North to refer to the advanced industrial economics, such as Europe and the United States, while Global South will refer to developing countries, including Argentina.
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Until 2004, migration policy in Argentina was defined by the Law 22.439, passed under the 1976-1983 military dictatorship. This law known colloquially as the Videla Law for General Jorge Rafael Videla, leader of the military dictatorship at the time the law was passed was notoriously restrictive in nature. In this way, the legislation reflected many of the restrictive policies of modern liberal democracies that are source countries for migration: access to residency was extremely limited for unskilled workers, and detention and deportation often without judicial review were employed as responses to steady undocumented regional migration. Under this policy, a large and vulnerable population of undocumented migrants developed. The Videla Law continued in effect for over twenty years after Argentina returned to democracy in 1983, and at times was applied even more harshly than it had been under the authoritarian regime. In the second half of the 1990s, as Argentina spiraled towards the economic meltdown that would come to be the 1999-2002 economic crisis which at its worst moments saw 24% of the population unemployed and 56% of the population living in poverty (Baer, pp. 44) high-ranking public officials increasingly used migrants as scapegoats for social and economic woes. Throughout this period, there was no legislation governing the provision of refugee status, which instead continued to be dictated by executive decree. Then, two years after the economic crisis, when the country was still feeling the echoes of deep social unrest and uncertainty, a new migration law was passed that completely altered the paradigm under which migration was regulated. The 2004 Migration Law 25.871 not only revoked the Videla Law, but also goes above and beyond the legislation of any traditional migrant receiving country to date: the law declares the right to
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migrate a human right, and grants migrants a wide range of rights and protections regardless of their migratory status. Two years later, in 2006, the country adopted the Refugee Law 26.165, which also employed a strong human rights discourse and surpassed international standards in the area of refugee protection. As the majority of migrant destination countries applied increasingly restrictive norms to the governance of migration, Argentina codified the rights of migrants and asylum seekers in two laws4 that far exceeded international human rights standards. Whats more, this change in law was accompanied by significant alterations in discourse and policy. The xenophobic discourses of decades passed virtually disappeared from the public sphere. The discursive space of the political elite shifted, as politicians and bureaucrats adopted the human rights discourse of the new Migration Law. A statement by Argentine President Cristina Fernndez de Kirchner outlines this newly dominant political paradigm: We are all children or grandchildren of an immigrant. We have to echo our own history and the identity of our country. We have to integrate immigrant populations instead of discriminate against them. We must oppose the cultural subordination that calls for laws against immigrants In times of economic crisis, xenophobic attacks always arise that try to place the blame for the problem with immigrants. It is part of the human condition to look for a scape goat, and this practice is
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In this thesis, the terms Migration Law, 2004 Migration Law and Law 25.871 will refer to the Migration Law 25.871 passed in 2004. The terms Refugee Law, 2006 Refugee Law and Law 26.165 will refer to the Refugee Law 26.165 passed in 2006. The terms Law 22.439, 1981 Migration Law and Videla Law will refer to the 1981 Migration Law passed in 1981 under the 1976 1983 military dictatorship.
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dangerous because it has given rise to political movements that consecrate atrocious violations of human rights.5 The Migration Law and Refugee Law have also been accompanied by institutional change that demonstrates that the change in legislation both prompted and was indicative of a wider policy shift. The extreme paradigm shift in discourse and policy in Argentina that was marked by the adoption of the 2004 Migration Law and the 2006 Refugee Law provokes the central research question of this thesis. Ultimately, the goal of this thesis was establish the international and domestic factors that influenced the incorporation of a human rights discourse into these two laws, and thereby explore whether the case of these two laws in Argentina demonstrates that the socialization of human rights norms may lead States not only to adopt and implement international norms, but also to eventually appropriate the human rights discourse and apply it to internal policy not yet regulated on the international scale. I was particularly interested in this question with regards to migration and asylum policy, and sought to understand what factors may influence a State to adopt policy that recognizes the rights of these populations. Some may question the choice of focusing on legislation, as laws often represent a change in rhetoric without prompting a meaningful change in practice. I take the view of Kathryn Sikkink, however, who argues for seriously considering the law, as both a crystallization of state expectations and a vehicle for transforming state understandings and practices (Sikkink 1996, p. 707). Examining pieces of legislation and the discourse therein
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5"Argentina*celebra*bicentenario*con*nueva*ley*de*migraciones*."*Pueblo'en'Linea,*5*April*2010.*Web.*15*Mar.*2012.* http://spanish.peopledaily.com.cn/31614/6972337.html*!
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can allow us to explore how the State frames a certain issues and how the State wishes to project itself. Whats more, legislation and the discourse that drives it creates expectations of State behavior. Although the State may fulfill those obligations to varying degrees, the written law ultimately has the power to transform the way that an issue is understood. Traditional scholarship has viewed the concept of universal human rights as a challenge to state sovereignty, proposing that States adopt human rights discourse largely in response to external international pressures. More recently, however, scholars have explored the question of whether the very notion of sovereignty is changing. A study of the new Migration Law therefore allows us to insert ourselves in that debate and to explore what factors may motivate States to adopt human rights discourse regarding the protection of a minority population, despite the absence of globally accepted human rights norms and treaties in the area. In this light, the Refugee Law serves as a foil, in that international norms do exist with regards to the treatment of asylum seekers and refugees. We might therefore expect that a generous refugee law would be easier to pass than a generous migration law, given the international pressure to respect the rights of refugees. And yet, the Migration Law passed first in Argentina, with the Refugee Law passing two years later. Argentina provides a particularly interesting case through which to study the development of human rights discourse and policy because of the countrys unique history with authoritarianism and transitional justice. From 1976 to 1983, Argentina passed through a brutal military dictatorship. In the notorious dirty wars, the authoritarian governing regime unleashed a reign of terror that featured torture, death and disappearance. Human rights groups now estimate that between 20,000 and 30,000 people disappeared
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during this dictatorship (Brown, pp. 240-241). Following the transition to democracy, Argentina conducted now world famous truth commissions and trials of formal military leaders. In light of Argentinas authoritarian past, I am also interested to see whether political learning; in the post-authoritarian context may have played a specific role in the Argentine case, and how authoritarian legacies influence the role of human rights dialogue in the development of policy in post-authoritarian democracies. Given the polemic nature of processes of transitional justice in post-authoritarian societies, these questions are significant in that they explore whether the effectiveness of transitional justice and the resulting strength and form of authoritarian legacies influence the future codification of human rights-oriented policy. By examining the current state of migration and asylum policy in post-authoritarian Argentina, we may consider the factors that influence State to adopt human rights discourse in legislation and in the norms of the political elite. The investigation that forms the basis of this research consisted of a series of interviews with professionals involve in the fields of migration and human rights in Argentina, including politicians, state bureaucrats, civil society members and academics. Chapter 2 will provide important background to the case, and is divided into two parts: general political and economic background important to understanding processes of policy formation today, and the history of migration and migration policy in Argentina. Chapter 3 will incorporate an in-depth literature review, exploring the current conversation on factors that may influence States to adopt human rights discourse. This chapter will also
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explore the themes of authoritarian legacies and political learning as well as the current state of migrant rights in the field of human rights. Chapter 4 will provide information on the research methods used in the development of this project, which will consist mainly of interviews with policy stakeholders, including politicians, human rights activists, and refugees and asylum seekers themselves. Chapter 5 will outline the findings of the work. Finally, Chapter 6 will provide further analysis, conclusions and suggestions for further research.
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CHAPTER 2: BACKGROUND Several historical and contextual factors are essential to understanding the development and implementation of migration policy in Argentina today. First, because this thesis focuses on policy formation, we must consider the specific context of the Argentine political system and recent Argentine political history. In this regard, we will consider in particular centralization, the power of the executive and the phenomenon of Peronism in the modern Argentine political system. Additionally, with regards to political history, we will consider the history of authoritarian rule in the country. Finally, as this thesis focuses on migration and asylum policy, we will explore the demographic history of migration to Argentina, the impact of this history on the formation of Argentine national identity, and the trajectory of migration policy in the country since Independence. ARGENTINE POLITICAL CONTEXT Argentina is a federalist republic with twenty-three provinces and one autonomous city, the capital of Buenos Aires. The conflict between centralized power concentrated in Buenos Aires and the federalized power of the provinces has been ongoing since Argentina gained independence from Spain in 1816 (CIA 2013). L.S. Rowe argues that, the conflict between federal and unitary principles constitutes one of the most instructive chapters in the history of many South American countries but in no country has this struggle been as deeply significant as in the Argentine republic (Rowe 1921, p. 3). Indeed, Argentina is one of the least centralized countries in the world, and the provinces hold all powers that are not specifically relegated to the government under the Constitution. They also have control over the provision of significant public services such as education and health, and
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are responsible for executing some national level policies, including social welfare programs (Ardanaz, Leiras and Tommasi 2012, p. 2; 6) While migration as a legislative issue is dealt with on a federal level, provincial actors traditionally hold significant sway over the national policy-making process, even with regards to issues that fall under the authority of the federal government. Often, the president will negotiate with provincial actors to gain their support on a legislative issue, using the bargaining chip of fiscal transfers, as the provinces all depend on federal funding. (Ardanaz, Leiras and Tommasi 2012, p. 6). As some provinces are more or less affected by migration than others, it can be expected that legislators from different provinces may support drastically different legislation.
Map'of'Argentina,'divided'into'23'provinces'and'the'Capital'city'of'Buenos'Aires'
From:*http://geografiaHeducmedia.blogspot.com/2012/04/argentinaHdivisionHpolitica.html**
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The Argentine Constitution was signed in 1853, but has been amended and suspended many times since; the most recent amendments were made in 1994, under the Menm administration (Crespo 2009). The Constitution was most recently suspended between 1976 and 1983, during the last military dictatorship, which will be further discussed in this chapter (Encyclopedia of Nations). In addition to the national Constitution, each province has its own constitution (Crespo 2009). The republic operates on a civil law system that is based on Western European legal systems. The president serves as both the Head of Government and the Head of State. The executive branch is complemented by independent judiciary and legislative branches. The seat of the judiciary branch is the seven-member Supreme Court, which is appointed by the president and approved by the legislation. In 2006, the Argentine Congress passed a bill that calls for the number of Supreme Court Justices to be reduced from seven to five. The third branch of government is the legislature, composed of an upper house called the Senate and a lower house called the Chamber of Deputies (CIA 2013). The unit of the province is considered one constituent in all elections for Senators and Deputies. Scholars argue that this basis of the province as a constituency makes the province the locus of party competition and the base of political support for politicians and parties (Ardanaz, Leiras and Tommasi 2012, p. 2; see therein De Luca, Junes and Tula 2002, Benton, 2009). This style of party system lends itself to a tumultuous political system. Martn Ardanaz, Marcelo Leiras, and Mariano Tommasi argue that Argentinas large political parties have been born and have recently developed in such a way that their national governing coalitions are best described as little more than (potentially volatile)
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confederate alliances between larger autonomous and quite powerful leaders of provincial political powers (Ardanaz, Leiras and Tommasi 2012, p. 7). While the Argentine political system includes three distinct and independent branches of government, the office of the presidency holds significant power with this system. The president, who is also the commander-in-chief of all three branches of the military, has the authority to suspend the constitution, write and introduce bills to the legislature, and appoint Cabinet members without congressional approval (Encyclopedia of Nations). This strong presidency has also had an influence over the formation of the political parties in the country. The two most important parties in the country are currently the Partido Justicialista more commonly referred to as the Peronist party and the Unin Cvica Radical (The Argentina Independent). Indeed, both of these parties were born out of a web of bargains between provincial leaders and extremely powerful presidential figures. The UCR was formed around the figure of Hiplito Yriogen, considered the first truly democratically elected president of Argentina because he was the first president elected under full male suffrage. Similarly, the PJ was formed around the figure of Juan Pern, the famous military leader cum populist president who lends his name to the Peronist political tradition (Ardanaz, Leiras, and Tommasi 2012, p. 7). The construction of political parties centered on strong individual figures lends itself to populist governance. Ardanaz, Leiras, and Tommasi explain further how the party system affects politics: When they win the presidency, Argentine national parties function according to independent bilateral agreements between the President and provincial leaders. When they are in opposition, they remain as nominally allied and loosely connected confederations among autonomous provincial organizations (Ardanaz, Leiras, and Tommasi 2012, p. 7).
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AUTHORITARIANISM AND DEMOCRACY IN THE 20TH CENTURY From the 1930s through the 1980s, Argentina oscillated between democratic and dictatorial regimes. In this period, there were no two democratic governments back-toback. This political and economic turmoil escalated particularly in the 1960s and 1970s, as left-wing guerrilla groups in particular, the Montoneros and the ERP battled against a government run by President Isabel Pern wife of former president Juan Pern and her Argentine Anticommunist Alliance, known as the Triple A. (Vanden and Prevost, pp. 402 406; Brown, p. 240). According to Jonathon Brown by early 1976, public opinion clamoredfor a military coup dtat (Brown, p. 240). In 1976, the Argentine military did indeed a coup and took over the government, creating a junta co-directed by the head of the army, navy and air force. (Vanden and Prevost, pp. 402 406). Although Argentina had been alternating between dictatorship and democracy for much of the twentieth century, the military coup of 1976 marked the entrance of a dictatorship that would come to be notorious for the brutality that it wielded against its own citizens. The military takeover was part of a larger trend in Latin America towards the entrance of authoritarian rule. In the Cold War context, a wave of military coups swept the region. National security ideology, with its assumption that authoritarian rule and human rights violations were acceptable in the struggle against insurgencies and communism, reigned. Lutz and Sikkink argue that the international environment provided cover and impetus for the wave of repression in Latin America in the 1970s and 1980s. Many countries had levels of state repression not previously witnessed since the colonial or independence period (Lutz and Sikkink 2001, pp. 280-281).
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Tom Farer notes that even though many Latin American countries had experienced authoritarian rule in varying degrees and with varying frequency since gaining independence, the regimes that rose up in the 1960s and 1970s were distinct in that they did not define themselves as brief interruptions in constitutional government induced by an emergency but rather intended to suspend indefinitely both elected regimes and the frequent companions of such regimes, freedom of speech and freedom of association. Categorized as bureaucratic authoritarian, these regimes were organized, disciplined, and determined, supported by their own arms and key segments of the middle and upper class and were often staffed by a comparatively well-educated generation of officers (Farer 1996, pp. 1-2). Perhaps nowhere did this repression come to be as notorious as Argentina. Comparing this dictatorship to those in neighboring Chile and Brazil, Anthony Pereira argues that the Argentine military junta was the most drastic of all and in institutional termsthe most innovative and the most daring (Pereira 2005, p. 4). Upon taking power in 1976, the military junta unleashed the Process of National Reorganization, known commonly as El Proceso. Promising to combat inflation and eliminate the leftist guerrillas, the junta engaged in what is today referred to as an undeclared war a guerra suciaagainst its own people (Arditti, p. 36). Economic themes were at the forefront of politics; the junta largely justified its use of brutality as necessary measures in a war against the Marxist threat. Referring to this alleged communist threat as a cancer, the military implemented a widespread and far reaching campaign. The militarys mirrored reflected that of military regimes in Paraguay, Uruguay, Brazil and Chile, all of which cooperated in the now-notorious Plan Cndor.
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The Argentine Dirty War has become globally synonymous with cruelty and broadbased human rights violations. The regime implemented a new methodology of repression (Arditti, p. 37) and the use of torture, clandestine detention and rape was widespread and systematic (Brown, p. 243). A new term entered into the quotidian Argentine vocabulary: the desaparecidos, or disappeared, those people captured and killed by the military whose bodies were subsequently disposed of in secret, leaving their families without the closure of knowing the fate of their loved ones (Brown, p. 245). While it is estimated that there were around 2,000 left wing guerillas at the time that the military gained power, human rights groups calculate that between 20,000 and 30,000 people disappeared during the dictatorship (Brown, pp. 240-241). Anthony Pereira provides an important analysis of the use of legality under the military junta. This understanding is significant to the understanding of policy, legislation and the judiciary in that period, which in turn is significant to understanding the legal legacies of the regime. He argues, The Argentine regime, despite the rhetorical mildness of its proclaimed ambition of national reorganization, was revolutionary in its disregard for and violation of preexisting legality. There was more opposition within the Argentine judiciary body towards the military dictatorship than there was in parallel institutions in Chile and Brazil, where the judiciary largely supported and was thereby integrated into the military system. Thus, the Argentine military ultimately surpassed these traditional state institutions instead of working through them; Pereira defines this route as antilegalistic. The use of disappearances, operating on a clandestine nature and evading the judiciary, became a full-scale program and an official policy as the regime dispensed with legal formalities almost entirely (Pereira 2005, pp. 119, 128- 129).
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HISTORICAL FACTORS: NEOLIBERAL REFORM AND ECONOMIC CRISIS Another significant factor to consider in recent Argentine political history is the neoliberal reform period of the 1990s and the 1999-2002 economic crisis. The economic crisis is a defining moment in modern Argentine history, and its impacts were far-reaching and long lasting in Argentine society. Today, many Argentines blame the crisis on neoliberal policies pursued by the presidential administration of Carlos Menm in the 1990s. Miguel Teubal labels the economic a crisis of neoliberalism and particularly of the severe structural adjustments applied in the 1990s and the beginning of the new millennium under the Menem and De la Ra administrations (Teubal 2004, p. 173). To understand where the neoliberal reforms of the 1990s had their roots, one has to understand the economic conditions under which Argentina made the transition to democracy. As we have explored, economic themes were central to the dictatorships rhetoric; the regime largely justified its use of brutality as necessary measures in a war against communism. Less tangibly brutal than the notorious acts of kidnapping, torture and murder conducted by the military, but undoubtedly also repressive was the economic policy of the regime, designed to limit the historically strong workers movement and local industry in favor of international investment (Arditti, pp. 36-37). These policies, part of a regional push towards liberalization under the Washington Consensus (Amann, p. 235), resulted in deindustrialization and debt dependency. While these economic practices resulted in seeming prosperity in the first five years of military control, this growth was propped up by inflation (Arditti, pp. 36-37), and the last three yeas of the regime featured rapid economic collapse, which was further augmented by the Falklands War (Wijnholds 2003, p. 102). By the time the government transitioned to democracy, the economy was
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in a crisis unparalleled in the nations history (Blake 1998, p. 5). The end of the dictatorship in 1983 and the transition to democracy heralded significant change, but the dominant paradigm remained largely consistent. Indeed, in the 1990s, neoliberal policies similar to those pursued by the junta assumed the status of a new orthodoxy. Under the administration of President Ral Alfonsn (elected in 1983), the government attempted to implement a series of stabilization policies (the Austral Plan, the Primavera Plan) but ultimately these changes only led to new cycles of inflation (Wijnholds 2003, p. 103 104; Blake 1998, p. 6). When Carlos Menem was elected Argentinas president 1989, he implemented radical reform with extensive market deregulation and an active courting of foreign, especially U.S., investors (Amann, p. 236). In 1994, Argentina came to an agreement with International Monetary Fund (IMF) that included, as was customary, mandatory Structural Adjustment Programs (SAPs). Despite the difficulties that Argentina had with debt following the transition to democracy, in in this period preceding the large-scale implementation of SAPs, Argentinas economy remained the most prosperous and industrialized economy in Latin America. Perhaps most significant in a region filled with disparate wealth distribution, until the 1990s 80% of Argentines were middle class, and workers and their bosses split the nations income exactly in half (Jeter 2009, pp. 35-36). Despite these positive economic indicators, however, the persistent presence of hyperinflation in 1989 led the government to pursue drastic measures (Sader and Manrique, p. 193) and the adoption of the IMF recommended SAPs. The SAPs promoted extreme privatization, extensive deregularization especially with regards to the labor market and an opening of the country to the world financial markets (Teubal, p. 174).
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In 1991, Argentina implemented the Convertibility Plan, which responded to hyperinflation by pegging the Argentine peso to the U.S. dollar (Teubal, p. 174). This plan was part of a trend of IMF-supported currency stabilization programs in Latin America, including Brazil and Mexico. These programs achieved rapid reductions in inflation; in Argentina; for example, inflation rates went from over 300 per cent in 1989, to nonexistent in 1996. This decrease in inflation meant a large increase in real income, which in turn lead to an increase in domestic demand and economic growth. This economic growth in turn gave investors incentive and confidence to return to Argentine markets and thus allowed the country to eliminate debt by privatizing public assets (Kregel, pp. 3-4). Perhaps due to this perceived success, Argentina maintained its convertibility peg longer than its peers Mexico and Brazil, to the point where the program became an economic drag (Ko, p. 10; Wijnholds 2003, p. 106). And so in the short term, the SAPs lead to growth (Amann 2010, p. 236), and the IMF heralded Argentina as a success story (Kregel, p. 1). In the long term, however, the policies were revealed to be problematic, both economically and normatively. First, the SAPs had severely negative economic outcomes, including a period of euphoric growth that masked significant problems. Ultimately, these problems resulted in economic suffering for a large part of the population, and a pattern of moral hazard and irresponsible economic decisions that eventually lead to the 1999-2002 economic crisis. The argument that the crisis was largely driven by the policies promoted by the SAPs is widely supported by scholars, and the IMF itself has admitted some degree of failure in the economic results of the SAPs and their culpability in creating the crisis (Conway). The growth generated by the SAPs offered immediate, tangible improvements in economic life,
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but covered up structural problems including a continued dependency on debt and uncompetitive domestic industry (Amann 2010, p. 237). Although foreign lenders returned, the government did not achieve fiscal balance. Debt remained a reality of economic life, and strict monetary policies made that debt harder to pay (Kregel, p. 3; Amann 2010, p. 237). To maintain the convertibility peg, Argentina was dependent on both the IMF and private funders, and thus vulnerable to external shocks (Ko, p. 11). Not only did dependency and debt make Argentina susceptible to external events, this form of growth also created challenges for domestic industry. Domestic industry never evolved into a strong competitor for foreign goods; the decrease in inflation rendered Argentine products too expensive to sell abroad, and products shipped into the country artificially cheap(Jeter 2009, p. 27; 45). Indeed, by 1997, the share of imported goods and services in GDP had doubled to around a 12 percent, while the share of exports remained substantially stable around 10 percent. Kregel categorizes this growth as debtled as opposed to export lead growth, and argues that it created a vicious cycle of external financing crises (Kregel, pp. 2-3; 5). In Argentina, these problems in policies promoted by the SAPs led to a series of irresponsible economic decisions that ultimately resulted in a long-term recession and the major economic breakdown of 1999-2002 (Kregel, pp. 2-3). The 1999-2002 crisis was predicated by three years of recession (Wijnholds, p. 110). Leading up to the crisis, the Argentine economy was rocked by a series of both external including the Asian financial crisis, devaluation of Brazils currency and increase of the U.S. dollar and internal - tax hikes changes, leading to a deflationary trap (Amann, p. 328; Ko, p. 11).
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Between the end of 2001 and the beginning of 2002, the country underwent a massive devaluation, a world-historical record sovereign default on $95bn of debt, and a collapse of the financial system (Weisbrot 2011). This crisis was the most profound economic depression Argentina had ever faced. At the worst moments, 24 percent of the population was unemployed and 56 percent was impoverished. Over the twenty years following the implementation of the SAPs, the gap in income between the wealthiest Argentines and the poorestwidened by a factor of 400. Economic collapse led to extreme political uncertainty and a turnover of five presidents in ten days at the end of 2001 (Baer, pp. 44; 47). Furthermore, social indicators pointed to the deeply eroding effects of economic depression. With impoverishment and desperation rampant, crime rates skyrocketed by an estimated 300%, and other indicators of welfare such as marriage rates and teenage pregnancy also worsened (Jeter, pp. 37- 39). The economic breakdown had significant political consequences. The Unin Cvica Radical (UCR), one of the two major political policies, suffered drastic losses in the next election. Indeed, these losses were somewhat ironic as although President de la Ra, the president that notoriously fled the Casa Rosada presidential offices in a helicopter, was a member of the UCR, his predecessor, Carlos Menm, whose had initially implemented many of neoliberal policies was largely considered to have led to the crisis, was a Peronist (The Economist 2008).
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MIGRATION AND MIGRATION POLICY IN ARGENTINA Now we will examine several topics that are more intimately related to the theme of this particular investigation: the demographic and political histories of migration in Argentina. DEMOGRAPHIC HISTORY OF MIGRATION TO ARGENTINA Since the arrival of the Spaniards and the beginning of the Conquest, Argentina has experienced diverse waves of immigration that have formed the demographics of its population. These migratory waves have also been the subjects of significant national myths and have been important factors in the conceptualization of national identity. Statistically, immigrants grew as a proportion of Argentinas total population from the second half of the nineteenth century through World War I. At the peak of immigration in 1914, immigrants represented nearly a third of the total population (Pacecca y Courtis 2008, pp. 9-10) and in 1920 they accounted for nearly half of the population of the city of Buenos Aires (Oteiza and Novick, p. 3). In this period, more than 2.7 million people immigrated to the new nation (Hines 2010, p. 474).
A'mural'entitled'La'Despedida''The'Farewell''that'recalls'Argentinas'historic'migration.'The' painting'adorns'the'front'of'the'Our'Lady'of'Immigrants'Church'in'La'Boca,'Buenos'Aires'(photo' taken'by'author)'

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Since World War I, however, the proportion of immigrants as a proportion of the total population has gradually lowered. As of the 2010 Census, Argentinas estimated total population was 40,117,096, and its foreign-born population was 1,800,000 , representing 4.5% of the total population (INDEC 2010). An astounding 60% of the foreign-born population lives within the metropolitan area of Buenos Aires (CELS 2012, p. 325).
Table'1''
35! 30! 25! 20! 15! 10! 5! 0! 1869! 1895! 1914! 1947! 1960! 1970! 1980! 1991! 2001! 2010!
Table 1: Argentina's Foreign Born Population as a Percentage of Total Population (INDEC) ' In Argentina there is an oft-quoted saying, the Argentines descended from the boats, which suggests that all Argentines are descendants of European migrants. The vast waves of European immigration at the start of the century were unquestionably influential in the formation of modern Argentina. European migrants made up the vast majority of migrants to the country during the greatest waves of immigration at the end of the 19th and early 20th centuries.
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A closer look at the historical statistics of migration to Argentina, however, also reveals that this phrase leaves out other large populations that have immigrated to the country throughout its history. Hidden behind the massive waves of European migrants arriving at the turn of the twentieth century was a comparable small but steady stream of migrants originating from neighbouring countries. In Argentina, migrants originating from countries that border the nation are commonly referred to as migrantes limtrofes. Regional migrants have hovered consistently around 2% of the total population throughout most of Argentinas history. While the population of migrants from neighbouring countries has not altered significantly over time as a proportion of the total population, it has come to represent a much greater proportion of the foreign-born population. In 1914, migrants from neighbouring countries made up only 8.6% of the foreign-born population. In 2010, they constituted 68.9% of the foreign-born population.
Table'2''
80! 70! 60! 50! 40! 30! 20! 10! 0! 1869! 1895! 1914! 1947! 1960! 1970! 1980! 1991! 2001! 2010!
Limtrofe migrants (originating from a country that borders Argentina) as a percentage of the total foreign-born population (INDEC) '
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Census Year 1869 1895 1914 1947 1960 1970 1980 1991 2001 2010
Total Population 1,737,076 3,954,911 7,885,237 15,893,827 20,010,539 23,390,050 27, 947, 446 32,615, 528 36,260,130 40,117,096
ForeignBorn / Total pop. 12.1 25.4 29.9 15.3 13.0 9.5 6.8 5.0 4.2 4.5
Limtrofe Migrants / Total pop. 2.4 2.9 2.6 2.0 2.3 2.3 2.7 2.5 2.5 3.1
Non-limtrofe Migrants / Total Pop. 9.7 22.3 27.3 13.3 10.7 7.2 4.1 2.4 1.6 1.4
Limtrofe Migrants / Total Migrants 19.7 11.5 8.6 12.9 17.9 24.2 39.6 50.2 60.3 68.9
Migration'Statistics'from'the'National'Census,'1869''2010'(INDEC).'
THE HISTORY OF ARGENTINE MIGRATION POLICY 1810 1976 Given that migration has played such as key role in the development of Argentina, perhaps it is not surprising that migratory policy has figured as a central policy of the Argentine State since its independence in 1810. Indeed, migration and asylum policy have been manipulated for political purposes throughout Argentinas political history.
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Traditionally, immigration has been seen as a useful tool in populating the territory of the country and in procuring the manpower necessary to develop it (Hines 2010, p. 474). This openness towards migration is evident in famous statements made by important Argentine statesmen in the nineteenth century. Juan B. Alberdi, whose Bases y puntos de partida para la organizacin poltica de la Repblica Argentina (Basis and Points of Departure for the Political Organization of the Argentine Republic) was the basis for the 1853 Constitution, stated, to govern is to populate. Early Argentine leaders were worried about the sheer expanse of the countrys territory, which they viewed as empty and wild. Domingo Faustino Sarmiento, the seventh president of Argentina, expressed this concern in his essay, Civilization and Barbarity: The problem that afflicts the Argentine Republic is its extension: the desert that surrounds it on all sides the solitude, the under populated areas without a single human inhabitant, are, in general, the unquestionable limits between one province and another. In those areas there is immensity all around: immense planes, immense forests, immense rivers, the horizon always uncertain, getting confused with the earth In the North and the South the savages lie in wait; they wait until moonlit nights to fall, as if a pack of hyenas, on the cattle that graze in the pastures and against populations that cannot defend themselves.
A'memorial'to'Juan'Bautista'Alberdi'and'the'tomb'of'Domingo'Faustino'Sarmiento,'both'in'the' Recoleta'Cemetery.'These'Argentine'founding'fathers'encouraged'migration'from'Europe'as'a' means'of'developing'and'modernizing'the'Argentine'territory'(photos'taken'by'author)'

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Early Argentine politicians such as Alberdi and Sarmiento saw immigration or, more specifically, European immigration as a means to populate and thereby gain control of and develop this vast expense of territory. In keeping with this positive view of the benefits that migration can provide towards development, the Argentine Constitution of 1853 has a notably open view towards migration; the foundational document recognizes the rights of migrants residing in Argentina, and also obliges the government to encourage European migration in particular (Oteiza and Novick, p. 4). One of the most significant sections of the Constitution in this regard is the preamble, which states: We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation. (Argentine National Constitution, available in English at: http://www.senado.gov.ar/web/interes/constitucion/english.php) The section of this preamble that has been particularly significant with regards to migration policy is the designation of rights to ourselvesour posterityand all men of the world who wish to dwell on Argentine soil (Argentine Constitution); this phrase does not specify citizens, but rather all men of the world who wish to dwell on argentine soil. Similarly, sections 14, 18 and 19 outline certain rights to which all the inhabitants of the nation are entitled. Additionally significant is section 20, which proclaims: Foreigners enjoy within the territory of the Nation all the civil rights of citizens; they may exercise their industry, trade and profession; own real property, buy and sell it; navigate the rivers and coasts; practice freely their religion; make wills and marry under the laws. They are not obliged to accept citizenship nor to pay extraordinary compulsory taxes. They may obtain naturalization papers residing
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two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those so requesting it, alleging and proving services rendered to the Republic. (Argentine National Constitution, available in English at: http://www.senado.gov.ar/web/interes/constitucion/english.php) According to Enrique Oteiza and Susana Novick, this relatively generous view of migration in the constitution was consolidate[ed] in subsequent decades, with government decisions that finally opted for a wide opening, marking a clear preference in favor of European immigration (Oteiza and Novick, p. 4). The next significant document to regulate migration policy was the Ley Avellaneda or Avellaneda Law which was sanctioned in 1876. This law remained in place as the main piece of migratory legislation from 1876 through to 1981. Oteiza and Novick argue this law formulated a clear policy of open doors, where the image of the immigrant was associated with progress and civilization (Oteiza and Novick, p. 5). Nevertheless, while migration has generally been seen in a positive light, the twentieth century saw the gradual implementation of a series of laws that contradicted the open sense of the Constitution and Avellaneda Law. Two significant pieces of legislation were the Residence Law in 1902 and the Law of Social Defense in 1910. These laws were largely a response to increasing social unrest and labor movements in the country, and were generated on the assumption that Southern European migrants in particular were bringing concepts of labor unions and agitation into the country. As such, both laws attempt to control and eventually repress and expel those immigrants accused of taking part in movements against the public order. Oteiza and Novick argue that here the image of the immigrant is that of a being that is potentially dangerous. In particular, these laws were
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notable because they allowed the Executive branch to detain and/or deport migrants without any judicial intervention (Oteiza and Novick, p. 5). Ethnic discrimination has also strongly influenced perceptions of migration (Hines 2010, p. 474; Grimson 2005, p. 2); the central embodiment of this discrimination, as noted by Mara Ins Pacecca and Corina Coutis, has been the predominance of an epic reading of ancient European migration and a stigmatizing look at Latin American migration (Pacecca y Coutis 2008, p. 7, authors translation). As we explored above, from the 1930s onward, Argentina entered into an extensive period of political turmoil. The political dynamics of a continuous oscillation between democratic governments and military regimes had a significant impact with regard to migration policy. Oteiza and Novick detail the pattern of migration policy during this period: The excessive legislation sanctioned by military regimes, and the migratory amnesties put forth by all of the constitutional governments ( declared in the following years: 1949, 1951, 1958, 1964, 1974, 1984, 1992) confirm the historical tendency that shows military governments legislating through substantive laws (which continue to in effect after the return to a democratic regime), and the democratic governments forming decrees of exception (amnesties), because they are unable to sanction a new law (Oteiza and Novick, p. 6). Despite efforts to the contrary, therefore, the main piece of migratory legislation for much of Argentine history remained the Avellaneda Law, with executive administrative decrees and amnesties marking the distinct perspectives of different regimes. THE MILITARY JUNTA AND THE VIDELA LAW In 1981, under the 1976 - 1983 military dictatorship, a new and restrictive migration policy, Migration Law 22.439, was passed. This law is now known colloquially
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as the Ley Videla Videla Law - because it was approved under the authoritarian government headed by General Jorge Rafael Videla. The law was intended to provide a single and global text that would legislate all aspects of the migratory phenomenon. This new legislation repealed the Avellaneda Law, thereby formally breaking with the liberalist tradition in Argentine migration policy (Oteiza and Novick, pp. 6-7). Although the liberal precepts of the Constitution and the Avellaneda Law had slowly been eroded by the implementation of laws such as the Residence Law, Law of Social Defense, and the legislation approved by a series of military dictatorships, the Videla Law codified a restrictive policy unlike any previously seen in the country. Under the dictatorship, migration was seen as a national security issue and policing concern to be dealt with by the Minister of the Interior in the executive branch. The regime thereby adopted a hardline approach to dealing with undocumented migrants in the country. Additionally, as the authoritarian regime was highly nationalistic, the construction of certain migrant populations as outsiders assisted in the construction of a narrow conception of national identity, particularly in regards to ethnicity (Novick 2005, p. 7; Ceriani Cernadas and Morales 2011, p. 9; Oteiza and Novick, p. 8). Under this new legislation, there were few legal avenues for immigration, and particularly few options for those immigrants who originated from neighboring countries (Hines 2010, p. 472; 475). The Minister of the Interior had the ultimate power to interpret the categories of admission and to establish entry requirements (Oteiza and Novick pp. 78). The policy thereby resulted in the growth of a large population of undocumented immigrants, whose lack of legal status left them in a state of particular vulnerability (Pacecca y Courtis 2008, p. 42). Building off of legislation passed in the previous military
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dictatorship (1966 to 1970), the Videla Law forbid undocumented foreigners from participating in paid tasks or activities. Whats more, public employees (including the employees of public hospital and the educational system) as well as certain business people (such as the owners of hotels), were actually required to denounce any person they should find to be lacking documentation (Oteiza and Novick, p. 7). The law gave the Minister of the Interior power of deportation in many cases, without judicial oversight particularly for those foreigners who had been found guilty of a crime that had a penalty of more than five years in prison, and those who had been accused of participating in activities that affected social peace, national security, or public order. Those migrants perceived to fall into either of these categories could be deported regardless of their migratory status (Oteiza and Novick, p. 7). One can imagine the significance of these two possibilities for deportation under the Process of National Reorganization. Despite the restrictive policies of the Videla Law, the full name of the law was the General Law of Migration and the Promotion of Immigration, and the legislation did express desire to increase the population by attracting foreigners. Building off of a long history of preference for European migrants, however, the law was particularly interested in attracting migrants of European descent. (Oteiza and Novick, pp. 6-7). 1983 2003: DICTATORIAL NORMS IN DEMOCRACY Perhaps the most surprising aspect of the history of the Videla Law is not its initial passage, but rather its endurance after the return to democracy. Although many laws were changed as a part of the transition following the fall of the junta most significantly with a legislative overhaul in 1994 the Videla Law remained effective until the passage of
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the 2004 Migration Law (Hines 2010, p. 472). The law therefore outlived the authoritarian period and was maintained through re-democratization, taking nearly 20 years to be overturned. In this period, migrants continued to be highly stigmatized and manipulated as the object of a political agenda. In the two decades between 1983 and 2004, subsequent democratic administrations modified the way that the Videla Law was implemented through executive decrees and the use of amnesties. This pattern is similar to that already observed in the period between the 1930s and 1980s, when the alternation of democracy and dictatorship saw new laws implemented by the dictatorships and emergency amnesties passed by democratic regimes. Ral Alfonsn was the first democratically elected president in Argentina after the 1976 1983 military dictatorship. His administration was dominated by many issues other than migration, including the trial of former military leaders, processes of transitional justice and escalating inflation. The year after Alfonsn gained power, his government launched an amnesty. The only law passed during the Alfonsn administration that dealt expressly with migration was the 1988 Law 23.564, which served only to modify the executive regulation of the Videla Law. For example, it adjusted fines for various violations (Oteiza and Novick, pp.4; 8). After Alfonsn, Carlos Menm was elected to the presidency. The Menm years were marked by dual outlooks towards migration. On the one hand, in Menms first term at the beginning of the 1990s, the administration seems to have taken a realist approach to migration issues, declaring an amnesty in 1992. As Menms second term unfolded, however, high-ranking public officials in various offices began to use increasingly
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xenophobic rhetoric. Alejandro Grimson recounts that in the most extreme moments at the close of the twentieth century there was a systematic campaign of migrant detention (Grimson 2005, p. 9). One common interpretation of this rhetoric and practice is that as neoliberal policies implemented by Menms administration began to show signs of failure in what would ultimately become the 1999-2002, migrants were used as a scapegoat to deflect negative attention. Oteiza and Novick analyze the Menm administrations practices with regards to migration in great depth, in their article, Poltica migratoria y derechos humanos en un contexto de ajustes y reformas neoliberales. Argentina: 1989 1999 (Gobierno de Menm). They observe that during the 1990s, Argentina was going through significant social changes. As previously noted, the demographic composition of the foreign-born population had altered. European migration to Argentina was way down as compared to the beginning of the twentieth century, while migration from neighboring countries remained consistent. In addition, other migratory groups, including Peruvians, Chinese, Taiwanese and Koreans, began to have a more significant presence. Finally, emigration from Argentina had increased. What had begun as political emigration under the dictatorship was now becoming an economic emigration (Oteiza and Novick, p.2). The Videla Law remained in power throughout the Menm administration. When the Constitution was reformed in 1994, no changes were made to the articles that related to migration policy. Several international human rights treaties adopted at the time of the constitutional reform. Under Argentine law, these treaties hold constitutional weight. (Oteiza and Novick, pp. 4-5).
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In the notorious height of the economic crisis, when Argentina passed through five presidents in merely a week, migration was hardly a central concern. Indeed, for all that migrants had been a focus as the crisis escalated, when the worst of the crisis hit, this xenophobic rhetoric faded in the face of vast and deep-reaching economic meltdown. THE KIRCHNERS: A NEW PARADIGM IN MIGRATION AND ASYLUM POLICY As we have seen, the replacement of the Ley General de migraciones y Fomento de la Inmigracin No. 22.439 by the Law 25.871, Ley de Migraciones (see Argentine Republic 2004) was only one in a long history of transitions in Argentine migratory policy (Pacecca y Courtis 2008, pp. 41-43; Hines 2010, pp. 479 - 480). Historically, migration policy in Argentina has reflected societal trends and dominant socio-political currents. Compared with the Videla Law, the new Migration Law represents an enormous paradigm shift because of its progressive character. Of utmost importance, it recognizes the right to migrate as a human right (Argentine Republic 2004, art. 4; Novick 2005, p. 15): The right to migrate is essential and inalienable to each individual and the Argentine Republic gaurentees this right on the basiss of the principles of equality and universality (Argentine Republic 2004, art. 4) In its 2012 Annual Report, the Centro de Estudios Legales y Sociales (CELS) a well-respected human rights NGO in Argentina noted that the imposition of the new Migration Law significantly changed the form of regulating the rights of migrants in Argentina. The CELS notes that with the passage of the 2004 Migration Law, Argentina moved from the model of police management with regards to [migration], founded in the doctrine of national security as enshrined in the Videla Law to a model of
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management that recognizes migration as a human right and, whats more, obliges the State to establish mechanisms to regularize migration, guarantees access to the judiciary in all detention or deportation proceedings and eliminates differentiation between nationals and foreigners with regards to access to rights (CELS 2012, p. 326). Whereas under the Videla Law, detention and deportation figured prominently as responses to undocumented migration, under the new law, the focus shifted to regularization, and the use of detention is very restricted. While before were few legal avenues for immigration, access to social services was restricted, and neither the protection of migrants rights nor the prevention of discrimination was mentioned, under the 2004 Migration Law, there are more legal avenues for migration, particularly for migrants from neighboring countries, constitutional rights and human rights are extended to all immigrants in the country, including rights to social services, education, justice, employment social security, and family reunification (Argentine Republic 2004, art. 5; Ceriani Cernadas and Morales 2011, p. 11). Additionally, the law grants all migrants regardless of their legal status the right to education, health and social assistance (Argentine Republic 2004, art. 7-8; Hines 2010, p. 481; Pacecca y Courtis 2008, pp. 44 47; CELS, p. 3). Barbara Hines notes that there was even a semantic transition between the laws, with the rejection of the term illegal in favor of irregular (Hines 2010, p. 490). The fulfillment of the 2004 Migration Law came with the publication of its administrative regulation in the form of an executive in 2010. This decree established more concrete guidelines for the implementation of the law (Ceriani Cernadas y Morales 2011, p. 6; CELS 2010, p. 1) (see Argentine Republic 2010). In 2007, Argentina ratified the International Convention on the Protection of the Rights of All Migrant Workers and
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Their Families, and the National Ombudsman created the Migrant Commission, which provides legal aid (CELS 2012, pp. 327 - 328).
REFUGEE!LAW!!
As a special component of migration policy, the topic of refugee law is of particular relevance to the discussion of authoritarian legacies because many members of society and indeed, many politicians in Argentina were themselves exiles during the authoritarian period. In violation of international norms and despite the fact that the country had ratified the international Refugee Convention in 1951 and its additional protocol in 1967 (Pacecca and Courtis, p. 48), the Argentine military junta along with contemporary dictatorial powers in neighboring states did not respect international asylum practices. The Southern Cone dictatorships during this period were known to return asylum seekers to neighboring regimes as component of the notorious cooperative Operation Condr. The first change in refuge policy came immediately following the return to democracy, as in 1984 the country created the CEPARE, or the Committee of Eligibility for Refugees, the group formally charged with the evaluation asylum cases (Pacecca and Courtis, p. 48). Argentina was part of a greater regional movement towards better protection of refugees and asylum seekers, as exemplified by treaties such as the aforementioned Cartagena Declaration on Refugees (1984) and the Mexico Plan of Action (2004), to both of which Argentina is a party. In 2006, Argentina passed the Ley 26.165, Ley General de Reconocimiento y Proteccin al Refugiado (Law of Recognition and Protection of Refugees). This law came as the culmination of steps taken throughout the re-democratization period to better protect
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the rights of refugees and asylum seekers in Argentina. It formally codifies rights for these populations and legally establishes the process by which asylum cases are evaluated (Pacecca and Courtis, p. 48). The Refugee Law establishes the CONARE, or National Commission for Refugees, which is charged with deciding on asylum cases and made up of five representatives of different government ministries and two members that have a voice but not a vote, UNHCR and a domestic NGO (Pacecca and Courtis, p. 48). The committee uses as a basis for evaluating cases the 1951 Refugee Convention, the 1967 Protocol, and the Cartagena Declaration on Refugees (Pacecca and Courtis, p. 48). As of April 2013, the executive decree providing administrative regulation for the Refugee Law had still not been released. When the National Ombudsman created the Migrant Commission in 2007, they also created the Commission on the Assistance and Protection of Refugees, which gives refugees legal counsel when they interact with the judiciary system (CELS 2012, p. 328). The Commission also has increasingly taken on different areas of social support for the refugee population. The exact nature of this support, however, is one of the sticking issues in the process of forming the executive decree and thus has not yet been formally codified. THE FORMATION OF A LAW In order to fully understand what factors influenced the passages of these two laws, it is important to consider how these laws came to be. In his book, Migration: A Human Right, Senator Gustinianni, the socialist legislator who proposed the new Migration law, explains that the Commission on Population and Human Resources of the Chamber of Deputies began to focus on reforming the migration law as its principal task since he took over its leadership in 2000. Senator Gustinianni remembers, We were conscious that if for
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two decades of democracy the Argentine Parliament had not sanctioned a new migration law it was not because the law was a forgotten question or because the legislature considered it unimportant. He observes that there had been many positive attempts that got stalled along the way because in debates on migration policy outdated, xenophobic, discriminatory and authoritarian tendencies routinely arose. As we have discussed, the question of migration policy had long been a controversial one in Argentina. Part of the reason that historically migration policy has more often been modified through decrees or administrative regulations rather than through new legislation was that the creation of new legislation represented an enormous huge political challenge. (Gustinianni 2004, p. 14). The 2004 Migration Law was passed as a closed legislation without debate in the Congress.
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CHAPTER 3: LITERATURE REVIEW Despite Argentinas long history of migration and tradition of open migration policy, the employment of human rights in migration policy as represented by the Migration Law and the new Refugee Law is a significant development on both the national and international scale. The discourses of these laws and the policies that they give birth to are particularly notable given the highly restrictive nature of the previous Argentine migration law. As we have established in the previous Introduction and Background, these two laws represent a complete paradigm shift from the 1981 Videla Law. In approving these two laws and adjusting policy accordingly, the Argentine State voluntarily switched from viewing and discussing the issues of migration as a question of national security to viewing and discussing the issue in the light of the rights of migrants. Such a change begs the question, why would the Argentine State and political elite voluntarily limit their own powers in the field of migration in order to provide for the rights of migrants, the habitual outsiders in liberal democracy? This question fits into larger theoretical debates as to why State adopt human rights discourse and practices when these discourses and practices are themselves designed to limit the States own sovereignty and/or force new obligations on the State. As we will see, however, this case study provides a novel response to this question. The case of Argentine migration policy presents a particularly interesting study in this area for two reasons: (1) because the case study is located in Argentina, which has a very specific history with regards to human rights and (2) because it deals with migrants rights, one of the last frontiers of the human rights debate.
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HUMAN RIGHTS AND STATE SOVEREIGNTY The question of why Argentine would choose to employ a human rights discourse and establish human rights-based norms fits into broader discussions of why nation-states choose to implement human rights discourse in law and practice, particularly when this implementation forces new obligations on the State or limits its power. The emergence and development of the international human rights regime in the post-World War II context has raised significant questions of the role and duties of the State in the international community. There are two important and related considerations with regards to the incorporation of human rights discourse and practice on the national scale: (1) do human rights limit, change, or not affect at all affect state sovereignty? and (2) what international and domestic forces influence the State in adopting human rights? In her book The Global Struggle for Human Rights, Debra DeLaet argues that there is a fundamental paradox at the core of debates over state sovereignty and human rights. On the one hand, the idea of universal human rights that belong to all human beings regardless of where they live clashes directly with the principle that States have the sole legal authority to determine how they will treat their own citizens and other individuals living within their borders (DeLaet 2006, p. xiv). On the other hand, however, States are the primary actors responsible for promoting and protecting human rights (DeLaet 2006, p. xiv). Human rights norms are designed to be a check on state power, and yet it is States themselves that have ultimately developed and adopted human rights protocols. This paradox that lies at the core of the driving research question behind this thesis. On the one hand, the adoption of the new migration and refugee laws appears to limit the Argentine States power in matters of migration and gave the State new responsibilities
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with regards to migrant populations. On the other hand, however, it was the Argentine State itself that ultimately adopted and now promotes these new laws on an international level. If the notion of universal human rights does indeed challenge state sovereignty, why then would States such as Argentina voluntarily adopt incorporate a human rights discourse in policy, not only in the form of adopting international treaties, but even by altering their own internal structure and legislation? This concept of universal human rights as a challenge to state sovereignty is a theme that has been a topic of increasing interest to scholars. Anne Clunan observes, human rights are seen as a critical challenge to state sovereignty, as they challenge its central premise of the State as the ultimate legal and political authority in world politics (Clunan, p. 7). Sonia Cardenas agrees, noting that, human rights norms have always posed an apparent challenge to traditional notions of Westphalian sovereignty (Cardenas, p. 27). The baseline argument that the concept of universal human rights is fundamentally in tension with state sovereignty envisions human rights as an external normative force that challenges the State as a sovereign entity. This conception of human rights fits with the topdown model, which assumes that human rights norms are generated at the international level and that States then concede for a variety of reasons to subject themselves to these norms. Much of the literature on the incorporation of human rights in national policy has emphasized this top-down conception of the socialization of human rights, assuming that norms are established at the international level and then trickle down to the nation-state. Internal change is therefore often seen as a consequence of the adoption of international treaties and norms (Clunan, p. 13).
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Scholars have questioned which factors could compel States to open themselves up to international scrutiny with regards to human rights, and to the possibility of international enforcement, particularly in the era of universal jurisdiction. There is no question that international influence has played a key role with regards to the spread of human rights, perhaps increasingly so in recent years as human rights and democracy have proliferated in the global sphere (Lutz and Sikkink 2001, p. 283). International human rights norms are erga omnes norms meaning, legally, that they are a form of legislation with acquired commitments that are addressed toward other States, not to their benefit but to the benefit of human beings who become the direct object of international law independently of their nationality (Estvez 2012, pp. 26-27). These commitments contain multiple levels of obligation: not only must States respect human rights in their own policies and practices, they must also protect against denial of rights and guarantee human rights by helping those who have had their rights violated (Estvez 2012, pp. 26-17).Ariadna Estvez argues that the reason that States submit themselves to international human rights norms is because they hope to sustain their legitimacy and not be excluded from the benefits of interdependence (Estvez 2012, pp. 26-17). If concerns of international sphere and being excluded from global interdependence were the sole driving concerns motivating the adoption of human rights based norms, however, than presumably no State would voluntarily choose to submit itself to a human rights discourse or obligation that was not legislated and/or broadly accepted on the international level. This assumption, however, does not always hold true, as States do adopt norms that are more progressive than international agreements or cover issues not yet
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codified on the global level. What additional reasons may compel States to adopt human rights policies and discourses? In recent years this linear top-down reading of the history of human rights that see universal rights as external, international forces that have the potential to threaten state sovereignty and yet to which States conform because of international pressure (Clunan, Sikkink). One counter argument to the top-down model suggests that human rights have not only challenged state sovereignty, they have changed our very notion of what sovereignty is (Clunan, Sikkink). In this way, the gradual erosion of state sovereignty due to the expansion of the international human rights regime may indeed be influencing States to increasingly [subject] themselves to a reduced sphere of exclusive sovereign authority and to greater international accountability (Clunan, p. 21). As Clunan observes: The human rights regime has changed the institution of state sovereignty in two ways. First, because certain human rights are understood to be universal, it has reduced the legitimate scope of all states internal sovereignty, in effect shrinking the exclusive jurisdiction of the state and increasing their accountability in other statesSecond, it has given individual human beings legal personality to confront states (Clunan, p. 9). Kathryn Sikkink similarly purports that human rights policies and practices are contributing to a gradual, significant, and probably irreversible transformation of sovereignty in the modern world (Sikkink, p. 411). A growing consensus agrees that the concept of human rights has altered our conception of statehood and state sovereignty. A changing notion of sovereignty suggests that the factors influencing States to adopt human rights norms and behaviors may be more porous and dynamic than the traditional TopDown model suggests.
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Indeed, States themselves seem to have begun to internalize human rights norms. Sonia Cardenas argues that If the Cold War saw the internationalization of human rights norms, the post-Cold War period gave way to their internalization (Cardenas, p. 27). This view suggests that as human rights norms have become increasingly prevalent and influential in the international realm, nations may have moved beyond simply passively accepting and gradually incorporating human rights norms to actively internalizing them and making them part of the fabric of the State. Under this conception of statehood the State has the potential to move from a passive and/or even reluctant recipient of international human rights norms to an active player in the human rights discussion. In a similar vein, Sikkink outlines a continuum of state sanctions and declarations that move from reinforcing traditional understandings of the scope of sovereignty to revealing a reconceptualized sovereignty in which a State accepts that gross violations of human rights will no longer be an issue solely within its domestic jurisdiction. Sikkink identifies three stages on her continuum of acceptance of international human rights norms: (1) the State denies the legitimacy of international human rights pressures or interventions and refuses to comply with these international standards, (2) that the State pays lip service to these international norms in international forums, ratifies international human rights treaties, and cooperates with international organizations, but does not actually change domestic practice, and (3), the State not only recognizes the legitimacy of these international norms but also implements concrete responses to international pressures that change domestic human rights practices (Sikkink 1996, p. 415). This continuum still identifies international pressure as the initial impetus in the adoption of human rights norms, but it also recognizes the increasing role of the State in the implementation and
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realization of these norms. DeLaet goes one step further in disputing the pure top-down model by pointing out that not only have States accepted and internalized human rights norms, they themselves are at the center of their development. The idea that the incorporation of human rights in domestic policy is not just a challenge but also a reconfiguration of sovereignty suggests that there may be other forces at play in this process than solely external international influences. Ellen Lutz and Kathryn Sikkink note that a variety of both international and domestic forces come into play in the formation, adoption and implementation of human rights norms in nation-states: The puzzle is to understand how international forces interact with domestic political factors to produce particular political outcomes. The impact of international and regional pressure for democracy or human rights is variable and depends on how it complements domestic political process (Lutz and Sikkink 2001, p. 279). This puzzle is key to the central research question of this thesis. What international and /or domestic influences prompted Argentinas change in migration and asylum policy? How did these factors interact? Do these factors confirm or break with established conceptions of State motivation for adopting human rights norms and rhetoric? Why was it about this particular historical moment more than twenty years after the return to democracy, and in the wake of a crippling economic crisis that made these factors were politically viable and allowed such a significant paradigm shift to be codified in law? Sikkink and Lutz build off the work of other scholars, such as Laurence Whitehead, who states, democratization involves interactive processes in which domestic political actors operate simultaneously in an international and domestic political context (Whitehead in Lutz and Sikkink 2001, p. 283). While top-down models tend to focus solely on international pressures and their affects on human rights policy implementation,
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Whitehead, Lutz and Sikkink observe an important interplay between international and domestic factors with regards to human rights policy implementation. What kinds of domestic forces may influence the incorporation of human rights? A very important domestic factor is the role of nonstate actors within the nation-state. Sikkink explores the role of transnational nonstate actors (Sikkink, p. 411) in her article, Human Rights, principled issue-networks and sovereignty in Latin America. She defines the principled issue-network as the combined forces of domestic and international nongovernmental organizations (NGOs) focused on human rights, intergovernmental organizations (IGOs) on both the regional and the international level, and private foundations (Sikkink, p. 411; 415-416). Sikkink groups these organizations because she says that they are driven primarily by shared values or principled ideasrather than shared casual ideas or instrumental goals (Sikkink, p. 412). She argues that these principled issue-networks have been central in the effort to translate the human rights ideals of the [Universal Declaration of Human Rights] and treaties of the postwar period into widely shared understandings and practices, stating that these groups have done so in two ways. First, IOGs have developed formal procedures to discuss and investigate human rights situations in member states. And second, NGOs have worked raise awareness about repressive practices (Sikkink, p. 414). Sikkink argues that NGOs have been critical to spur state action at each stage in the emergence of the human rights regimes (Sikkink, p. 417). Non-state actors may act within or above the national level. They may intentionally bypass the national level in order to prompt the international community to act and force top-down pressure, blurring the line between domestic and international factors. One example of such action was the international indictment of former Chilean dictator Augusto
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Pinochet, which was brought about in large part by the activity of Chileans both inside and outside of Chile and their allies, who made Pinochet an international symbol of flagrant human rights abuse and sought and secured extensive international involvement as a means of pressuring for domestic human rights change (Lutz and Sikkink 2001, p. 279). Sikkink labels the process by which domestic social movements reach out to international allies to gain leverage and bring pressure to bear on their governments from the outside the boomerang effect (Sikkink 2011, p. 77). To consider the question of human rights policy in Argentina, one must consider the history of human rights policy, not only on the global level but also in the specific contexts of the region of Latin America and the country of Argentina. As a region, Latin America has a particular history of human rights and democratization that is relevant to the consideration of the development of human rights policy in Argentina. Whats more, Argentina itself has a unique history of authoritarianism and corresponding human rights movements that remain relevant today. HUMAN RIGHTS IN LATIN AMERICA Human rights have a particular history in the Latin American region. Kathryn Sikkink notes, Latin American legal scholars, policy makers, and activists have long been at the forefront of the struggle for international human rights and democracy. She argues that recent human rights developments in the region are not an unusual break with the past, but rather a resurrection of ideals and concerns present in inter-American debates for many years (Sikkink 1996, pp. 705-706). Edward Cleary similarly argues, there is something special about Latin America and human rights, a zeal-zeitgeist-soul to human
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rights that one does not commonly find in the United States, Canada, or Europe (Cleary 2007, pp. 1-2). Both scholars observe that the Latin American region had an important influence on the development of international human rights law from its beginnings, and was influential in the drafting of the Universal Declaration of Human Rights. Indeed, the Latin American region had already developed its own international declaration of human rights prior to the Universal Declaration of Human Rights: the American Declaration of the Rights and Duties of Man, also known as the Bogot Declaration (Cleary 2007, pp 2-3; Lutz and Sikkink 2001, p. 280). The Bogot Declaration outlined a wide conception of human rights, including not only the first generation civil and political rights but also second generation social and economic rights (Cleary 2007, p. 3). Cleary attributes this tradition of human rights in Latin America to three key influences: the Christian humanism of [Bartolom de] Las Casas and early missionaries, secular influences of the Enlightenment modified by Latin Americans, and the political influence of the United States constitution (Cleary 2007, p. 1). Lutz and Sikkink argue that the influence of international and interregional factors has been significant in the recent spread of democracy and human rights in Latin America. They suggest that given the wave-like nature of the trends in repression in the 1970s and 1980s, and of the return to democracy and improvement in human rights in the 1980s and 1990s, it seems unlikely that domestic factors in each country fully account for the regional trend in democracy and human rights (Lutz and Sikkink 2001, p. 283). Not only international law but also a general normative shift may be at the root of this proliferation of human rights policies:
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International law is one part of [a] broader regional and international trend that has influenced human rights practices in the [Latin American] region. But international law is less important in and of itself, and more important as one manifestation of a broader norm shift that has led to increased regional and international consensus with respect to an interconnected bundle of human rights norms. The popular, political and legal support and legitimacy these norms now possess is reinforced by diverse legal and non-legal practices developed to implement and ensure compliance with themIn the 1980s, Latin America experienced a regional human rights norms cascade a rapid shift towards recognizing the legitimacy of human rights norms, and international and regional action on behalf of these normsthe norms cascade is a source, and an indicator, of political learning at the domestic and international level (Lutz and Sikkink 2001, pp. 283-284). Lutz and Sikkink observe that although many scholars assumed that ongoing democratization in the hemisphere would lessen the impact of international or regional influences, in reality, the influence of international action such as the indictments of war criminals by foreign courts on dictatorship-era officials from countries such as Argentina, Guatemala and Chile demonstrates that international and regional factors still play an important role even after the transition to democracy (Lutz and Sikkink 2001, p. 279). The relationship between democracy and respect for human rights on the national scale in Latin American countries has been debated. Joseph Elridge, former director of the Lawyers Committee on Human Rights, observes, violations of human rights in many countries are just as bad under democracies as under military rule (Joseph Elridge, quoted in Cleary 1997, p. 62). Lutz and Sikkink disagree, however, and maintain, the return to democracy was generally accompanied by improved human rights practices (Lutz and Sikkink 2001, p. 283). While international pressure continues to influence the incorporation of human rights norms in Latin America, the region has also been influential in human rights policy on the global scale; Sikkink notes the role of Latin American activists in encouraging recent developments in human rights policy. In particular, she highlights the
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role of politicians from Argentina, Brazil, Uruguay and especially Chile played in encouraging governments in the United States, Europe, and Latin America to think about human rights (Sikkink 1996, p. 728). Finally, in considering human rights policy in Latin America, it is important to note that while the Latin American region has a long history of activity in the formation of human rights norms and standards, adherence to these international human rights norms has often [fallen] far short of this commitment, especially in the period from 1950 through the mid-1970s (Lutz and Sikkink 2001, p. 280). Indeed, even the recent transition from authoritarian rule to democracy in many Latin American countries and the arrival of the socalled, third-wave democracy did not necessarily correspond with better or ideal human rights practices. Cleary notes, the expansion of nongovernmental human rights organizations shows both the good and the ugly aspects of Latin American democracies (Cleary 1997, p. 62). HUMAN RIGHTS IN ARGENTINA Argentina in particular has been an important player in the international human rights discussion, particularly in the wake of the last military dictatorship that ruled the country from 1976 to 1983. While Argentina transitioned to democracy in 1983, varying manifestations of authoritarian legacies still play an important role in the socio-political climate of the country. Kathryn Sikkink argues, Argentinaillustrates the potential for global human rights protagonism and diffusion of ideas from a country outside the wealthy North (Sikkink 2008, p. 1). This human rights protagonism on the part of a country in the Global
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South seemingly debunks the top-down model. Sikikink explores the question of Argentinas human rights protagonism particularly in regards to innovation in the area of transitional justice after authoritarian rule. In order to understand the political saliency of a human rights discourse in Argentina today, and what factors may have particular weight within the political realm with regards to the adoption of human rights discourse and legislation, it is important to understand the history of both authoritarian rule and transitional justice in the country. Argentinas transition to democracy and subsequent struggle with transitional justice corresponded with the trajectories of other Latin American countries. Between 1978 and 1991, most of the authoritarian regimes in the Latin American region transitioned to democracy. These transitions to democracy were accompanied by the adoption of norms to support democratic rule (Lutz and Sikkink 2001, p. 282), with the understanding that a successful democracy is not characterized solely by the occurrence of elections for a head of state and legislative representatives, but also by the States adherence to certain norms and principles (Farer 1996, p. 3). An important question for Latin American nations emerging from authoritarian rule was that of transitional justice. Argentina has undergone intense transitional justice efforts since the return to democracy (Pereira, p. 165). The first president after the democratic transition, Ral Alfonsn, was himself been a human rights lawyer, and part of his platform was opposition to attempts by the military to prevent transitional justice. Alfonsn established the Comisin Nacional Sobre la Desaparacin de Personas (CONDEP) a transitional truth commission and annulled the militarys self-amnesty shortly after entering office in 1983 (Pereira 2005, p. 166). Top regime leaders and other
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military officers were subsequently tried, leading to the conviction of five of the nine top leaders and the prosecution of hundreds of lower level officers. What is more, the judiciary was purged and reparations were paid to victims of military oppression and their families (Pereira 2005, p. 166). Transitional justice efforts in Argentina, however, were not universally supported. Pressure from the military led Alfonsn to pass the Full Stop and Due Obedience Laws, which ended most prosecutions for human rights abuses under military law (Pereira 2005, p. 167). The election of Carlos Menm in 1989 saw an even more significant shift with regards to transitional justice. Menm pardoned hundreds of military officers that were in trial when he arrived in office, and subsequently pardoned officials that had already been convicted under Alfonsn (Pereira 2005, p. 167). The path to transitional justice was therefore winding, and the pendulum would again swing as the twentieth century drew to a close. In 1998, the Full Stop and Due Obedience laws were repealed, and two years later they were declared unconstitutional by Judge Gabriel Cavallo. This shift cleared the path for significant changes under President Nestr Kirchner, who was elected in 2003 with transitional justice as a significant item of his administrative agenda. As the Full Stop and Due Obedience laws had been repealed, in Kirchners first year alone nearly 100 military personnel were brought up on charges of human rights violations. Additionally, his presidency saw the greatest purge of highranking military personnel since the return to democracy, and the removal of impediments to the extradition of Argentines facing trials abroad (Pereira 2005, p. 167).
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This process of transition to democracy after an authoritarian regime is also significant with regards to the authoritarian legacies that may continue to play a role in Argentina as a post-authoritarian state today. Paola Cesarini and Katherine Hite define authoritarian legacies as: Those rules, procedures, norms, patterns, practices, dispositions, relationships, and memories originating in well-defined authoritarian experiences of the past that, as a result of specific historical configurations and/or political struggles, survive democratic transition and intervene in the quality and practice of postauthoritarian democracies (Cesarini and Hite 2004, p. 4).
Cesarini and Hite outline three ways in which authoritarian legacies may present themselves in a post-authoritarian democracy: (1) As formal structures and institutions inherited from authoritarian regimes; (2) as the lingering power and influence of traditional/conservative groups; and (3) as cultural or psychological manifestations of authoritarianism (i.e. uncertainty, distrust, fear (Cesarini and Hite 2004, p. 2). Importantly, they argue that authoritarian legacies may appear as both continuations of the past and reactions to the past (Cesarini and Hite 2004, p. 3). Continuations of the past, for example, may take the form of laws or state structures that remain in place, the continued power of certain social classes, or societal notions of distrust or fear, particularly in state institutions. In contrast, authoritarian legacies can also take the form of a reaction or rupture to the past; reactions to the past, for example, may take the form of a human rights counter-culture that survives into the democratic period or other reactionary efforts that outlast the transition. Furthermore, Cesarini and Hite also argue these legacies may be either formal including for example identifiable structures and institutions and lived, practiced dispositional manifestations or informal such as societal practices like clientalism [or] caudillismo (Cesarini and Hite 2004, pp. 4-5).
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Authoritarian legacies can influence societies through the process of political learning. Nancy Bermeo defines this concept of political learning as the process of reevaluation of the nature of political regimes, enemies, goals and behavior, and the consequential formulation of a changed conception of political goals and measures (Bermeo in Cesarini and Hite 2004, p. 15). The process of political learning primarily occurs among the political elite, as this group re-evaluates behaviors and goals. Under Cesarini and Hites notion of reactions to the past (Cesarini and Hite 2004, pp. 2-4), the development of a strong network of non-state actors interested in promoting human rights can be considered an authoritarian legacy in Argentina. Before the military dictatorships that began to spread across the regions in 1960s and 1970s, human rights NGOs were virtually unknown in Latin America (Lutz and Sikkink 2001, p. 180; Cleary 1997, p. 66). As organizations began to emerge under the military dictatorships in reaction to gross human rights violations, they were strongly repressed by these regimes. After many Latin American countries transitioned to democracy, hundreds of groups in Latin American have come forward to confront human rights issues (Cleary 1997, p. 62). Argentina was no exception to this trend. Kathrine Hite and Leonardo Morlino note that the legacy of these movements remains controversial but that scholars credit the Argentine human rights movement for inserting an agenda of human rights issues into existing social and political groups They also see human rights groups as the precursors for todays civil society activism around such issues as government transparency and accountability (Hite and Morlino 2004, p. 66).
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Cleary suggests that there are four main reasons for the proliferation in human rights movements in the Latin American region. Two of these factors are the conditions necessitated these movements; first, the persistence of major social breakdowns that have led to human rights violations and the exclusion of the poor, and second, the delay of many governments in the region in responding to these concerns and acting to defend human rights. The second two factors are related to conceptions of human rights in the region: first, changing conceptions of human rights in the eyes of many Latin Americans, particularly in connection to the spread of Catholic liberation theology, and second, the increasing influence of North Atlantic countries in the area of human rights (Cleary 1997, pp. 64-65). Kathryn Sikkink argues that Argentina has played a particularly important role in promoting human rights, both in Latin America and in the global context. She argues that in the post-authoritarian period: Argentine human rights activists were not just passive recipients of [the] justice cascade but instigators of multiple new human rights tactics and transitional justice mechanisms, including the trials of the junta and the 1984 truth commission. The Argentine case illustrates the potential for important global human rights protagonism in the creation of new international norms and practices form a country outside the wealthy global North something not recognized by most of the international relations literature and provides material with which to begin to theorize the conditions under which such protagonism can occur (Sikkink 2008, p. 1). Sikkink suggests that even though previous literature has recognized that groups in the Global South may have agency with regards to acting on human rights, it would not necessarily have led us to expect that a country like Argentina could move in a relatively short time from being the principal target of [global activism to pressure governments to change] to being a global protagonist exporting human rights norms and practices. She
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critiques the predominance of the top-down model, noting that much of the literature assumes that human rights norms and practices are generated by countries within the wealthy global North and therefore would not expect that a country such as Argentina would be a source of innovation in the area of human rights. She argues the Argentine case thereby debunks, an underlying assumption in this literature [policy] diffusion is more likely to flow from wealthier and more powerful countries to less powerful countries. Christian Ochoa and Sarah Green also challenge conventional models that suggest norms move in a set direction from the Global North to the Global South; they observe that new waves of legal discourse are moving across the Global South, often employing the rhetoric of human rights and engaging with relatively novel domestic, regional and international institutions created for the purpose of advancing the law of human rights They further argue that, whether as part of a hegemonic or counterhegemonic project the States that are included in their study of the Global South experience the appropriation of selected elements of the global-homogenous version of human rights and the production of original, often unique hybrids that are shaped by local histories, social structures, and power relations within particular societies and among different social groups (Ochoa and Greene 2011, pp. 1-3). Sikkink further emphasizes the influence that Argentina in partiuclar has had on the international scale as an innovator in the area of human rights: FirstArgentina was the source of an unusually high level of human rights innovation and protagonism. Second, these innovations have been diffused broadly, especially in the Latin American region but also in other parts of the world. Argentina has been an exporter of human rights tactics, ideas and experts. One might say that this is a sad legacy indeed, the inevitable product of the massive repression of the military regime. But other countries experienced repression as
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great as or greater than in Argentina and did not put forth the same vibrant response from both civil society and governmental actors (Sikkin 2008, p. 2). Sikkink focuses her research on the role that Argentina has played specifically in innovating in human rights with regards to responses to authoritarianism and transitional justice. This thesis, however, seeks to explore whether the domestic human rights innovation that Sikkink identifies has spread to other areas of human rights activism in Argentina, specially focusing on the area of migration and refugee policy. David Clearly identifies two stages of movements in human rights activism in the post-authoritarian period in many Latin American countries that can help us consider the transition from transitional justice movements to broader human rights efforts. He identifies a first wave of human rights mobilizations in Latin America that were focused on the issue of dealing for the past (Cleary 2007, pp. xi-xii). Subsequently, he observes the energies generated by reactions to human rights violations during the military era have flowed into a second stream of mobilizations, leading human rights advocacy to expandinto areas beyond death and disappearance (Cleary, p. xii). This second wave of mobilizations moving beyond the question of historical memory and confronting dictatorship era atrocities towards other questions of human rights is relevant to the discussion of human rights rhetoric in migration and asylum policy in Argentina. Do the new Migration Law and Refugee Law represent new innovation in human rights activism on the part of the Argentine nation and society? How did this innovation come to occur, and what factors may have influenced Argentina to innovate in this particular area?
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MIGRANTS RIGHTS AS HUMAN RIGHTS: THE NEXT FRONTIER? In order to explore what innovation in the field of human rights with regards to migration would look like, and to answer the question of what factors may have influenced the Argentine State to adopt a human rights discourse in its migration policy, we must consider the current status of migrants rights within larger discussions of human rights on the global scale. Predominant discussions of human rights have often focused on the duties of States with regards to their citizens. The revolutionary Nuremberg tribunals following World War II, for example, are seen to have transformed individuals from mere objects of the State to subjects having rights they could assert against their own States (Farer 1996, p. 7). This paradigm shift was significant in that it counters previous understandings of individuals as mere symbolic representatives or capital assets of their State (Farer 1996, p. 7). The change, however, focuses on the relationship between citizens and the State to which they belong. This paradigm centered on the nation-citizen relationship is challenged in the face of vast global migration. Estvez argues that human rights treaties are for all people and not only citizens because they are ius cogens instruments. Ius Cogens instruments are norms that are accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be codified only by a subsequent norm of general international law having the same character(Article 53 of the Vienna Convention on the Law of Treaties, in Estvez 2012, p. 27). Under international law, ius cogens principles are so basic that they cannot be violated on the basis of sovereignty
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(Estvez 2012, p. 27). DeLaet notes how this universality presents a challenge to traditional conceptions of sovereignty: The idea of universal human rights that belong to all human beings regardless of where they live clashes directly with the principle that states have the sole legal authority to determine how they will treat their own citizens and other individuals living within their borders (DeLaet 2006, p. xiv). Given these this understanding of international human rights, one would indeed assume that migrants rights would be an integral part of the human rights regime. After all, if human rights are intended for all people and sovereignty is not considered due justification for their violation, it seemingly follows that the basic human rights of migrants residing in a foreign State would be the same as those of citizens of that State. In reality, however, migrants rights have been one of the most difficult subsections of rights to incorporate into the body of international human rights law. The recent appearance of human rights rhetoric in broader discussions of migration regarding not only refugees but also economic migrants and people displaced as a result of environmental disaster, generalized violence, and life-threatening situations has been part of a greater evolution of human rights claims on the global scale. Migration is a particularly interesting issue with which to explore questions of human rights and state sovereignty because in the globalized context migration itself is often considered a challenge to state sovereignty. The States right to determine who enters their borders is considered one of the central acknowledged rights of sovereign states (Money 1999, p. 500). Nevertheless, Farer observes, from its beginning in the seventeenth century, the claim of territorial sovereigns to a plenary, unreviewable discretion collided with the reality of interaction and interdependence as:
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The reduced cost of transportation, the printing press, the spread of literacy and learning, the growing administrative capacity of governments and the consequent spread of public order, the development of markets and banking, the increase in the division of labor all conspired to accelerate the movement of people, property and ideas across borders (Farer 1996, p. 5). Migration has long presented a challenge to traditional understandings of sovereignty, and as such, the concept of human rights in the realm of migration may be imagined to present a double-challenge to traditional conceptions of sovereignty. With time, modern nation-states have generally conceded certain rights even to non-citizens living within their territory. For example, one of the first responses to increasing migration was that States conceded to each other a right of protection over nationals traveling, living or doing business abroad (Farer 1996, p. 6). Overtime, principles have come to limit the traditional understanding of the right to restrict entry, particularly in liberal democracies. Key among these principles have been: The right of an alien to join a citizen family member, of a resident alien to be joined by his or her family (family reunification), the right of an alien to seek asylum from a well founded fear of persecution (non-refoulement) and the (limited) right to not be expelled from the state (expulsion/deportation) (Money 1999, p. 500). Of these principles, that of non-refoulement is particularly important in our comparison of the development of the new Migration Law and Refugee Law in Argentina. Non-refoulement is one of the key principles that underpin the concept of refugee status and asylum. This principle holds that no State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, membership of a particular social group or political opinion (Steiner 2009, pp. 62 63).
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The development of international standards regarding the treatment of refugees has largely paralleled the development of the international human rights regime Niklaus Steiner notes, because of the close connection between human rights and refugee protection, the Universal Declaration of Human Rights explicitly addresses asylum. It states in Article 14 that: Everyone has the right to seek and enjoy in other countries asylum from persecution (Steiner 2009, p. 60). The understanding of a refugee was cemented under the aforementioned 1951 Convention Relating to the Status of Refugees and them further delineated in its 1967 Protocol; most importantly, these documents provide a definition of the term refugee itself, defined as any individual who: Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, is outside the country of his nationality and is unable to, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residenceis unable, or, owing to such fear, is unwilling to return to it (as quoted in Steiner 2009, p. 62). The principles established in the UDHR and the 1951 Refugee Convention are significant because these conventions are widely accepted in the global sphere and therefore the principles enshrined therein can be expected to hold influence in the policymaking process of States that are a party to them. Indeed, Ardiana Estvez argues that once human rights treaties have been accepted by enough countries as to become norms, they can hold significant international sway. Particularly, she notes, States desire to sustain their legitimacy and not be excluded from the benefits of interdependence and thus may be influenced to respect widely accepted international treaties (Estvz 2012, p. 27). While the right to restrict entry has therefore been limited in the past by a variety of principles, the growth of the international human rights regime has further challenged the
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traditional notion of sovereignty. Movements of people in the globalized world are diverse in their motivations for migration, as migrants may be compelled to leave their country of origin as the result of material or moral discontent or suffering, poverty and economic inequality, political persecution, discrimination, natural disasters, war, and more (Estvez 2012, p. 11). As conceptions of human rights have broadened, so too has the notion of migrants rights become a topic of discussion. Debra DeLaet outlines the three-generation categorization by which many scholars have come to understand the evolution of human rights: first generation human rights claims, which are focus[ed] on civil and political rights, second generation human rights claims, which are focused on economic and social rights, and third generation human rights claims, which are based on claims for solidarity rights and focus on collective rather than individual rights (DeLaet 2006, p. 20). This development is also often conceptualized as a movement from negative rights rights that limit state action by preventing the State from doing harm to individuals to positive rights those rights that require state action to proactively address social and economic issues. In keeping with this conception of the development of international human rights, Cardenas observes that after the Cold War, National Human Rights Institutions became more inclusive in calling attention to vulnerable groups, including women, children, internally displaced persons, and the disabled. while the rights of some vulnerable groups had been recognized previously, these rights were eclipsed during the Cold war by more blatantly political rights violations (Cardenas, p. 31). Given this progression of the development of human rights norms, it is understandable that civil and political refugees were the first to have their rights codified,
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as their situation was directly linked to the violations of their rights that were in line with the first generation understanding of human rights the negative rights of protection against government violation of civil and political rights. In contrast, the discussion of the rights of economic migrants whose rights are more closely tied to second generation economic and social rights or to third generation collective rights such as the right to economic development -- continues to be a topic of debate through delay, as do second and third generation rights themselves. Indeed, in many countries of the Global North, the development of the international human rights regime has been paralleled not by increasing respect for migrants rights but rather by increasing securitization and restriction of migration. While calls for the recognition of the rights of migrants have grown in many activist circles, liberal democracies themselves have adopted increasingly restrictive migration policies, creating vast immigration detention infrastructure and harsh deportation policies. The dynamics of globalization, which has lead to unprecedented movements of people (Estvez 2012, p. 11), which in turn has generated concerns over unwanted immigration in the U.K., Western Europe, Australia, and North America since the 1960s and 1970s (Castles, p. 38). Subsequently, in 1980s and 1990s, these concerns over unwanted migration in developed countries led to the intensification of forces of migration control (Castles, p. 39). These same States in the Global North have been resistant to the development of international norms and treaties with regards to migrants rights. For example, these nations have largely resisted signing or ratifying to the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Accordingly, the treaty took over twenty years to enter into force and still has not been ratified by any major migrant-
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receiving country in North America or Europe (For a comparison of the countries that have signed and/or ratified the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol, and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, please see Appendix 1). Still, the issue of migration has not been one of outright restriction but rather one of constant tension and debate for liberal democracies. The concept of migrants rights as human rights has not been broadly established, but receiving countries have continued to accept migrants and in some areas respect for migrant rights seems to be improving. Jeannette Money observes : While public opinion polls demonstrate that large majorities in all these countries would prefer fewer migrantswealthy western countries continue to accept new entrants and have refused to reduce their legally resident foreign populations by any but voluntary means (Money 1998-1999, p. 297). In this thesis, I use the case study of migration and asylum policy in Argentina to explore whether there is evidence that in this case Argentina has appropriated the human rights discourse and begun to innovate in human rights on a national scale in an area beyond transitional justice. The dynamics of the international debate on migration and human rights makes this case study particularly interesting; In the case of Argentine migration policy, the lack of widely accepted international norms with regards to migrants rights raises questions about top-down models that assume human rights practices move from the international to the national. At the same time, in the case of Argentine refugee policy, international norms do exist. The case of migration policy raises the interesting question of what factors would drive a country like Argentina to adopt human rights rhetoric in not only their domestic asylum policy but also their domestic migration policy,
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in the absence of widely accepted or conventionalized international normative standards on the treatment of migrants. In this light, the Refugee Law provides a foil to the study of the Migration Law, allowing us to compare the development of human rights discourse in a law where international human rights standards exist with that in a law where international human rights standards are not yet well established.
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CHAPTER 4: RESEARCH METHODS This study was aimed at exploring the factors that influenced the Argentine State in adopting the human rights discourse that figures so strongly in the Migration Law and Refugee Law. The bulk of the study was constituted by in-person, open-ended interviews with professionals that have been involved with migration issues and the development of the new migration and asylum policy in Argentina. The majority of interviews were conducted in June, July and August of 2012 in the city and province of Buenos Aires. Additional interviews were conducted in December of 2012. Finally, research included attendance at events and presentations focused on migration in Buenos Aires, particularly attendance at the three day seminar at the University of San Martn entitled: 1st Seminar on Migration, Cultural Identity and Human Rights: The Current Situation of Immigrants in Argentina. RESEARCH PARAMETERS LOCATION This investigation focused on the evolution of migration and asylum policy in postauthoritarian Argentina. Argentina provides a unique and important case in the field of migration studies because of the unconventional approach that the country has taken to migration control in recent years. While countries across the globe continue to apply increasingly restrictive migration policies in the face of economic crisis, in the wake of a full-on economic collapse and national bankruptcy in 2001/2002, Argentina repealed its former, restrictive migration policy in favor of a more open migration policy in 2004 and refugee policy in 2006.
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Argentina also provides an interesting case study for several other reasons that have been explored in the background chapter. First, the country has a long history as a traditional destination country for migrants. Coupled with this history, however, is a recent growth in emigration from the country, driven by both political and economic factors. Finally, Argentina presents an important case for examining human rights policy and the role of civil society, because civil society groups that developed during the last military dictatorship have remained a strong force in the country. It is important to note that as this investigation focuses on federal policy both migration and asylum policy are determined at the federal level the majority of interviews were conducted in the capital city of Buenos Aires with professionals that are located in that area. In addition to being the seat of the federal government, Buenos Aires is also home to several of the most important research universities in the country, particularly the University of Buenos Aires. What is more, as a nation, Argentina is extremely centralized; according to the 2010 national census, 38.13% of the countrys total population is located in the province of Buenos Aires, and additional 7.66% of the population is concentrated in the capital city of Buenos Aires alone (the capital of Buenos Aires, while located within the Province of Buenos Aires, is an autonomous city with its own separate government) (INDEC 2011). Furthermore, much of the countrys immigrant population is disproportionately settled in the city of Buenos Aires and the area that is known as Greater Buenos Aires, which includes urban sprawl that extends into the Province of Buenos Aires. For example, while the foreign-born population represents 4.5% of the total population, according to the Government of the City of Buenos Aires and Annual Home Survey (EAH), in the city of
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Buenos Aires, the foreign-born population represents 11% of total population (Novacovsky 2011, p 3).
TIMELINE This study focuses on the evolution of political discourse and attitudes towards migration in the period of 1983 through 2010 in Argentina. The starting date of 1983 was chosen because this year marks the end of the last military regime and the beginning of the first government of the post-authoritarian democratic period under Ral Ricardo Alfonsn. Although the former migration law, Law 22.439, was passed in 1981 under the military junta, this investigation focuses specifically on the attitudes of democratic governments towards migration in the post-authoritarian context. This focus allows the investigation to consider the legitimacy of a dictatorial era norm in the democratic context, while eliminating potential confounding variables that may arise from comparing application of migration and asylum policy under different regime forms. Participants were questioned about their opinions on migration and asylum policy through present day, because the reglamentacin of the Refugee Law is still a pending question. Reglamentacin is a figure of the Argentine legal system as a civil law system, by which certain laws after they are passed must be regulated by the executive branch. The executive releases a decree that further fleshes out the implementation of the law; effectively, the reglamentacin delineates administrative regulations. Although the new Migration Law was passed in 2004 and the new Refugee Law in 2006, the executive decree to accompany the Migration Law was not released until 2010 and that which will
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accompany Refugee Law has yet to be released as of April 2013. Although laws enter into effect after they are passed by the legislature, the ramifications of their implementation are often ambiguous without the accompanying executive degree. The reglamentacin, therefore, is an important step in the implementation of a law and the so debates, discussions and delays about these executive degrees can provide further insight into the attitudes of the executive towards certain issues. STUDY PARTICIPANTS Participants were recruited by email and/or telephone after having been identified through review of literature, newspaper articles, and the websites of relevant civil society organizations and government bodies. A particular effort was made to reach out to those investigators and actors that contributed to the book Migracin: un derecho humano, a collection of commentaries on the new migration law compiled by Senator Rubn Gustiniani, who introduced the law. Some interviewees were also identified through other interviews or through connections made at events focused on migration in the city, particularly the seminar at the University of San Martn. Participants were drawn from three main groups: government officials, representatives of civil society organizations, and academics. These groups were chosen because they represent those most actively involved in creating and implementing the new migration and refugee laws. The most obvious group involved into the development in policy may be legislators and government actors, but many other groups had an important role in this case study. Civil society groups were heavily involved in advocating for a
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change in migration policy throughout the post-authoritarian period, and thereby can offer valuable perspective with regards to the attitude of different governments to migration. Similarly, many of the academics included in this study have not only studied these topics but were consulted by the government in the development of the new migration policy. With regards to civil society organizations, particular emphasis was given to interviewing representatives of those groups that made up the Coalition of Civil Society Organizations in the Defense of Migrant Rights (Mesa de Organizaciones de la Sociedad Civil en la Defensa de los Derechos Humanos). Many of the individuals included in this study have been working with Argentina since well before the passage of the Laws 25.871 and 26.165, and therefore can given a personal perspective with regards to the trajectory of government attitudes towards migrants and asylum seekers. It is important to note that many participants fell into two of if not all three of the categories of interviewers; former civil society leaders who are now academics, government officials who teach and conduct research, etc. For a full list of participansts and the organizations they individudally represented, please see Appendix 3.
INTERVIEW FORMAT Interviewees were offered the choice to conduct the interview in English or Spanish. All interviewees opted to complete the interview in Spanish. Before the interview, I informed the interviewees about the purpose of the study and the format of the interview. I asked the interviewee for their consent to be interviewed and for permission to use their name in future publications. Interviewees were offered the chance to use a pseudonym at this time; the vast majority of interviewees permitted use of their name, while only two
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requested to be identified solely as representatives of their organization (the International Organization of Migration). The interviewee was also asked permission to use an audiorecorder. All interviewees gave permission to use an audio-recorder, and interviews were taped using a Sony Digital Voice Recorder, ICD-UX512.
INTERVIEW QUESTIONS Interviews were generally open-ended and conversational in style, and the content of interviews depended largely on the work and expertise of the interviewee. Nevertheless, many questions remained consistent across interviews. Broadly speaking, the questions had two aims. The first objective was to outline the trajectory of migration policy and government attitudes towards migrants and asylum seekers in post-authoritarian Argentina. In particular, these questions place the changes in law in context. Questions included: In your opinion, how have the distinct executive administrations since the return to democracy discussed migration? What discourses have they employed? Why do you think that it took so long for the migration law to be changed after the return to democracy? The second objective of the questions was to address my central research question: Having established this paradigm shift, I sought to understand what factors led to the adoption of the human rights discourse that predominates in the new migration and asylum laws, and why these factors were politically viable. Questions included:
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Was there strong opposition among some politicians to the Migration Law 25.871 or the Refugee Law 26.165?
Do you think the Economic Crisis of 2001 affect the way that politicians discussed migration? If so, how? And the way that the general public viewed migration?
Was the passage of these two laws a subject of significant public debate? What do you think were the political motivations behind passing these two laws? Were they similar between the two laws or were there differences?
Why do you think that these laws passed in the particular moment that they did?
The question list evolved over the course of the study. One of the greatest challenges in the investigation was determining the most effective way to phrase questions in an effective way, particularly in a foreign language. The phrasing and vocabulary used in the interview questions therefore evolved over the course of the study, as some questions were found to be more effective than others.
ADDITIONAL RESEARCH While in Argentina, I also attended a two day seminar at the Universidad Nacional de San Martn (UnSaM), entitled 1st Seminar on Migration, Cultural Identity and Human Rights: The Current Situation of Immigrants in Argentina. This two-day seminar featured speakers from a variety of universities, civil society groups and government agencies. The panels focused on: 1. Migration and Cultural Identity 2. Migration Policy 3. Migration and Human Rights
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4. The Voice of Migrants I recorded seminar proceedings and comments. Participation in this seminar afforded me access to several important officials; for example, among the slated speakers were the director of the Argentine National Migration Bureau (DNM) and the director of the International Organization for Migration, as well as representatives of nongovernmental organizations and academics. For a full list of presenters, please see Appendix 4. I also attended the presentation of a report by the International Organization for Migration (IOM), The Impact of Migration in Argentina (El Impacto de las Migraciones en Argentina), which featured a panel of speakers including both the Director of the DNM and the Director of the IOM. The opportunity to hear government officials speaking in public at these events also provides a window into current political discourse towards migration, and allowed me to analyze the way in which these officials presented migration issues in the public sphere.
POST-FIELD WORK AND ANALYSIS After fieldwork, the most significant interviews were transcribed in full, while other interviews and tapes from the Conference and Book Presentation were transcribed in part. All quotations included in the findings were translated to English by the author. Information from these interviews was then sorted along the same lines as interview questions. Information as to the forces influencing migration and asylum policy was gathered for the Findings chapter.
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CHAPTER 5: FINDINGS Overwhelmingly, interviewees pointed to three general categories of factors that prompted the incorporation of a human rights discourse into discussions of migration and refugee law in Argentina: 1. Action of Nongovernmental Actors 2. History and Concepts of Identity 3. Timing and Political Context In this section, I will examine what my interviewees said with regards to these three influences. In the conclusion, I will examine how their commentary fits within broader debates on national sovereignty, national identity and the adoption of human rights norms and discourse. Overall, my interviewees indicated that a twenty-year fight on the part of civil society organizations to alter migration and asylum policies was the key impetus in ultimately prompting a change. These groups used themes of history and conceptions of national identity as rhetorical tools in constructing arguments for a change in policy that were salient in the specific Argentine national context. This long-term effort was ultimately successful, however, only because of the particular political climate created by the 2001 economic crisis. Of particular import were the effects that the crisis had in shaking up the political status quo and thereby opening the way for the election of Nestr Kirchner. The election of Kirchner was in turn significant because of his administrations agenda of human rights and Latin American regionalism.
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ACTION AND STRENGTH OF NONGOVERNMENTAL ACTORS The first category, action and strength of nongovernmental factors, refers to the long-term efforts made by civil society organizations to fight for a change in migration and refugee law in Argentina. The vast majority of interviewees pointed to this struggle as a key impetus in bringing about a change in legislature (Perez Vinchich 2012; Mrmora 2012; Terminiello 2012; Willalpando 2012). The new Migration Law was formed by over three years of seminars, debates, and public forums (Gustinianni 2004, p. 15; Perez Vinchich 2012; Pacecca 2012). A diverse range of organizations was involved in this effort, including human rights NGOs, religious groups including both the Catholic and Protestant churches, the CTA union, and academic researchers (Ceriani Cernadas 2012, Perez Vinchich 2012). These organizations formed a collective called, The Round Table of Civil Society Organizations in Defense of the Rights of Migrants6 (for a full listing of these organizations, please see the Appendix 2). This coalition participated actively in advocating the Argentine government for a more humane migration legislation and policy. Many of the organizations that formed this coalition came to form a similar Round Table dedicated specifically to refugee issues after the new Migration Law was passed, and civil society organizations were similarly involved in promoting the adoption of a Refugee Law in conformity with international standards (Sukama 2012). Pablo Ceriani Cernadas, the director of the Human Rights Center at the Universidad de Lans, explained that nongovernmental organizations worked both to dialogue with the
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*In*Spanish,*La*Mesa'de'Organizaciones'de'la'Sociedad'Civil'en'la'Defensa'de'los' Derechos'de'los'Migrantes!
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executive branch and to lobby members of the legislation. He suggested that the great diversity of the groups involved allowed them to pursue an effective effort of strategic lobbying, especially with regards to influencing members of the legislation: There was also a work of strategic dialogue on the part of the organizations, in which they reached out to different parties present in the CongressSo the Catholic Church reached out to members of Congress more sympathetic to the Church, the human rights organizations to those members of Congress more sympathetic to the human rights movement, the CTA to the movement of workers in unions, the academicsto the Congress members more connected to the University of Buenos Aires, for example, to the academic sector. And so there was awork of strategic advocacy in Congress, that later complemented the dialogue with the executive branch. Because of this effort of strategic lobbying, along with the open nature of the deliberations that allowed many legislators in the development of the bill, many congressional representatives felt invested in the new legislation, and thereby defended it within the Congress (Gustinianni 2004, p. 15; Benencia 2012). The preemptive efforts made in connecting with legislative representatives contributed to allowing the new Migration Law to pass unanimously and quickly in both chambers of Congress, and may have helped to prevent the law from becoming an item of significant controversy in the public media (Ceriani Cernadas 2012; Terminiello 2012). Senator Gustinianni, the author of the law, first promoted the law in the Chamber of Deputies in 2003, where it passed unanimously. In the meantime, he had won election in the Senate, and his term began in 2004. Therefore, as the Bill passed from the Chamber of Deputies to the Senate, Gustinianni was able to accompany it and act as a personal advocate in both chambers of Congress (Bogado-Poisson 2012).
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A process of consultation similar to that used to develop the Migration Law was used in the development of the Refugee Law. Senator Gustinianni also played a significant role in the development and passage of the Refugee Law (Terminiello 2012). The only objection to the Refugee Law was over the role that the UNHCR should have in the countrys national eligibility committee (Filardi 2012; Terminiello 2012). Specifically, one representative expressed concerned that the presence of the UNHCR in a government decision-making body, even without a vote, could create a precedent by which international groups may insert themselves into other government decision-making bodies; specifically, concern was expressed that organizations such as the World Bank or IMF may use this precedent to oversee national financial decision-making bodies (Terminiello 2012). Interviewees also noted that the issue of migration had never had the strongly polarized political pull than it has in other places, such as the United States and Europe (Ceriani Cernadas 2012; Mrmora 2012; Pacecca 2012); Ceriani Cernadas observed that the change in law was not something that was heavily discussed in public media, as one could find in the United States, or Spain, or in other countries where the issue of migration is so strongly present in the public agenda that it is inevitable that every bill, or every proposal, has an immediate and very strong repercussion or debate in the media (Ceriani Cernadas 2012). Leilo Mrmora, the former director of the IOM Southern Cone Office, agreed, noting that in general in Latin America, migration policies are not the political flag of any political party, they are the policies of the State, it is not like in Europe or the United States, where the political parties assume positions with regards to migration.they are considered basic principles, almost constitutional (Mrmora 2012).
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Still, despite the fact that the migration law was never an issue of great public debate, changing migration policy in Argentina has not historically been an easy feat, and so the passage of the Migration Law with such little opposition in the legislature is notable. Since the passage of the Avellaneda Lawin 1876, there were many efforts at crafting a new migration law, but none succeeded until the dictatorship forcibly input the Videla Law in 1981. Similarly, there were many attempts in the democratic period following the junta to reform the migration law and revoke the Videla Law, but none were successful until 2004 (Garca 2012). Lucila Nejamkis, a researcher at the University of Buenos Aires, suggested that there was opposition from certain sectors of the legislature, but because the law was passed sur tablas a process by which legislation is passed closed, without debate in the congress it was able to overcome these objections (Nejamkis 2012). Controversy over the openness of the Migration Law arose more explicitly after the law had been passed, during the period in which the executive decree to regulate the law was debated (Garca 2012, Courtis 2012). As noted in the Research Methods chapter, the reglamentacin is a figure of Argentine legal processes by which laws have to pass through the executive branch after being passed by Congress. The executive branch then passes an executive decree to accompany and regulate the law and detail its execution. Lila Garca, a colleague of Lucila Nejamkis at the University of Buenos Aires, explained that the development of the executive decree was a tooth and nail fight, so that the executive decree would not be more restrictive than the law, which is a classic Argentine problem, that the executive decrees delimits what the law provides. Decree 616/2010 to regulate the Migration Law was released in May of 2010, six years after the law was passed and two years after negotiations over the decree began (Garca, 2012). In light of this continued
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opposition, the participation of civil society actors did not end with the passage of the law. The committee that advised on the executive decree included both government representatives from the executive branch and civil society organizations, particularly those that had formed the Round Table (CELS 2012, p. 327; Perez Vinchinch 2012; Benencia 2012). Nejamkis suggested that the controversy that arose during the reglementacin was not so much due to the emergence of opposition that hadnt surfaced in the legislature during the passage of the law, as because of complications arising from the lingering bureaucratic structure of the DNM. Under the Videla Law, she noted, the purpose of the DNM was to repress migrants, to block legalization, to present obstacles rather than to ease the process (Nejamkis 2012). Marcos Filardi, Director of the Commission of Comprehensive Assistance and Protection of Refugees and Asylum Seekers, similarly observed that the institutional culture that had developed in the DNM during the Videla Law was hard to break, despite the radical change in legislation (Filardi 2012). What is more, because of the requirement that public officials such as educators and health workers report anyone they found to be undocumented regardless of professional confidentiality requirements the bureaucratic legacies of the Videla Law reached beyond the DNM itself (Terminiello 2012). Despite the two-year deliberations over the executive decree, however, the document ultimately did expand and clarify the rights in the Migration Law rather than restricting them. The decree: Reduced the margin of administrative discretion to reject the entrance of persons at the border, incorporated and specified certain migratory categories that were not foreseen in the law, in light of the adoption of the Convention on Migrant Workers and their Families; reiterated the need to guarantee that judicial detention of migrants was exceptional in migration proceedings (CELS 2012, p. 327).
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The executive degree for the Refugee Law has taken even longer to be passed. As of April 2013 the executive degree has still not been released. Civil society groups also continued to be active in the implementation of the law (Perez Vinchich 2012; Benencia 2012). Roberto Benencia noted that the NGOs and migrant groups helped to realize the Plan Patria Grande, the large-scale regularization program specifically targeting migrants who were citizens of MERCOSUR countries. He noted that this collaboration between the government and civil society was essential to the success of the regularization program, because those involved knew that they couldnt necessarily hope for the migrants to come to the DNM for so long a feared institution among the migrant population but rather had to go to the people to explain the program to them and work with them to complete the paperwork (Benencia 2012; Labrador 2012). As was explored in the literature review, the strength of Argentine human rights civil society can be considered an authoritarian legacy of the 1976 to 1983 military dictatorship in the sense that it represents an enduring reactive movement to the human rights abuses that took place under the junta. Many of the most influential human rights organizations in the country today came to be as part of either the struggle against authoritarian rule or the efforts for crafting transitional justice and constructing historical memory that came after the transition to democracy. Examples of such organizations that formed in opposition to human rights violations committed by the dictatorship and were also involved in the development of a human rights oriented migration and refugee policy include the CELS, the Permanent Assembly for Human Rights, and the SERPAJ.
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In this way, the organizations that participated in advocating for new migration and asylum policies followed the two-stage trajectory of advocacy suggested by David Cleary as the model for Latin American human rights organizations in the post-authoritarian context: after first focusing on transitional justice and/or historical memory, they then broadened their work towards a second stream of mobilizations that including issues beyond death and disappearance (Cleary, p. xii). Diego Morales, a lawyer who focuses in migration issues at the CELS, explained how his organization made this transition after the return to democracy. The CELS formed in the context of the dictatorship as a direct response to dictatorial abuses, and has come to be one of the most influential human rights NGOs in Argentina. Morales explained that after the transition to democracy, the CELS widened its work, not only to include issues related to the dictatorship but also to include issues related to the violation of human rights in democracy (Morales 2012). He observed that one of the first issues that the CELS began working with was police violence, which was seen as a direct continuation of dictatorial practices an authoritarian legacy. This violence was particularly prevalent in the villas de emergencia literally, emergency villages, also known as villas miserias, or miserable villages which are shantytowns on the edge of the city of Buenos Aires and other major cities in Argentina. Estimates suggest that nearly 70% of the populations of the villas de emergencia around Buenos Aires are foreign-born (Perasso 2009). Morlaes recalled that CELS began to observe a strong correlation between a persons migratory status and their susceptibility to police violence and precarious living conditions. In essence, those who lacked documentation were more likely to be trapped in dangerous living conditions and more vulnerable to police violence. Thus, he explained,
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although the CELS did not begin working with the issue of migration immediately after the return to democracy, they did begin to include migration issues in their annual reports, and they were increasingly aware that the police violence was directed not only to poor populations but to undocumented ones. In the 1990s, Morales noted that the question of migration began to emerge as a more pressing question in the agenda of human rights groups. CELS began to systematically include information about the issue, and manage cases, collect evidence and generate legal analysis on the topic. Beginning in 1996, migrants rights got its own chapter in the CELS Annual Report (Morales 2012). Morales explained that it was in this second half of the 1990s that he feels the debate about migration issues increased in volume and that the concept of a right to migrate began to emerge. He explained that human rights organizations began to use the evidence that they had collected to demonstrate that migration had not affected the country negatively but rather positively (Morales 2012). And so the human rights discourse came in part from the side of civil society organizations, which approached the issue from a human rights paradigm that had framed other areas of their work. The sponsor of the legislation, Rubn Gustianni, was from the socialist party, and part of this human rights discourse also came from his background and the paradigm of his party (Nejamkis 2012). In this way, the human rights discourse emerged both from civil society groups and from some specific arms of the political elite (Nejamkis 2012; Mrmora 2012)
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Morales argues that even in the 1990s, when high-ranking officials were quoted making xenophobic remarks, there was not so much a reaction against migration for migration itself, but rather to poor migration. As such, he stated: Once it was demonstrated that poor migrants also have rights, I think that then it was very easy tointroduce the idea of a right to migrate (Morales 2012). Importantly, it was in the context of discussing the action of civil society groups that interviewees most often mentioned the influence of international factors. In contrast to much of the literature on human rights that heavily emphasizes the role of international systems and treaties in diffusing human rights norms, however, in most cases the international factors were said to be influential as a tool national civil society actors used in order to influence politicians and the State apparatus. The description of the interaction between Argentine civil society groups and international bodies was reflected of the boomerang effect that Kathryn Sikkink proposes. Sikkink says the boomerang effect occurs when domestic social movements reach out to international allies to gain leverage and pressure to bear on their government from the outside (Sikkink 2011, p. 77). Significantly, Argentina had begun to use the boomerang method during the process of transitional justice, particularly with regard to the Inter-American Court of Human Rights (IACHR), and so many of the NGOs that worked to change the Migration and Refugee Law were had experience working through international channels and had established transnational networks (Sikkink 2011, pp. 77, 90). A key example of the use of the boomerang effect by civil society groups in order to change the migration law was the presentation of the case of Juan Carlos de la Torr before the IACHR (Morales 2012, Terminiello 2012, CELS 2008, p. 7). Juan Carlos de la
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Torr is a Uruguayan migrant who was detained and deported without judicial review after twenty-four years of living in Argentina with his Argentine wife and their children (CELS 2008 p. 207). CELS and the Centro por la Justicia y el Derecho Internacional (CEJIL) brought a petition challenging his detention and ultimate deportation before the IACHR (CELS 2008, p. 207; Bogado-Poisson 2012). This case was chosen by these organizations as a leading case to be fought using the method of strategic litigation. The process of strategic litigation is a fundamental tool used by organizations such as the CELS and the CEJIL in their work for the expansion of rights and the influence of human rights policies (CELS 2008, p. 17). Essentially, these organizations select a leading case, or a case that is highly representative of the issues that they wish to challenge. Sometimes these cases may highlight patterns of illegal conduct and/or structures that lead to systematic violations of human rights but they also may be used to challenge state policies that are perceived to be in violation of constitutional or legal standards (CELS 2008, p. 17). The case of Juan Carlos de la Torr was raised as a leading case to challenge the Videla Law, and was an effort that collaborated with the greater campaign against that law that was being brought forth by Argentine civil society (CELS 2008, p. 206). De la Torr presented a habeaus corpus challenge to the actions of the DNM on the day of his deportation, but the action was rejected. The Appeals Chamber supported the decision to deny the motion of habeaus corpus; and de la Torrs deportation was not stalled. A constitutional challenge that de La Torr brought forth was also struck down by the Annulment Chamber and the Supreme Court ultimately rejected an extraordinary appeal on the grounds that the subject of the appeal the liberty of De la Torre had,
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become abstract because de la Torr had already been deported (CELS 2008, p. 208). After all of these domestic recourses had been exhausted, in June 1999 the CELS and the CEJIL moved forward with their action in the IACHR (CELS 2008, p. 208). Morales explained that CELS saw the case of Juan Carlos de la Torr as a good candidate for strategic litigation because the case essentially captured all three of the main challenges that migrants in Argentina were faced with: the lack of documentation, detention, and deportation (Morales 2012). Specifically, the CELS argued that although under law the DNM had the authority to issue the deportation order without judicial review, the agency was not competent to make this decision. Additionally, they argued that in the process de la Torr was deprived of access to simple and timely appeal, because the DNM failed to issue a statement responding to the allegations of human rights violations that de la Torr had raised when they resolved his administrative appeal (CELS 2008, p. 207). The case was presented to the Commission with two angles: first, the detention and deportation as a violation of rights, and second, the overall lack of protection for migrants in the country (Morales 2012). The case lasted two years, during which time the Argenitne government came to understand that its migration legislation had serious problems, and the government conceded in the IACHR that it would attempt to seek an amicable resolution through the modification of the Migration Law (Morales 2012). In this way, the civil society organizations were able to use the boomerang effect in the international forum of the IACHR to gain influence with the Argentine government.
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Fabiana Hermoso of the DNM also recognized that this case had been influential, as it was when the IACHR looked like it would decide in favor de la Torr that the Argentine government moved forward with realizing the facilitation of processes of entry and residency, particularly for MERCOSUR nationals. She stated that to this day the DNM is supportive of Argentine civil society seeking consultation from international actors such as the IACHR in regards to questions of migration policy. Morales also recognized that for Argentina, international agreements in human rights have a certain weight (Morales 2012), not surprising given that these treaties hold constitutional status. Argentina had signed on to several additional human rights treaties with the constitutional reform in 1994, and activists argued that these treaties carried with them a duty to better defend the rights of not only citizens but also migrants (Terminiello 2012; Bogado-Poisson 2012). Additionally, United Nations committees connected to international treaties had pressured Argentina to reform its Migration Law and to adopt a Refugee Law; for example, the Committee for the Elimination of Racial Discrimination had repeatedly emphasized the need for a Refugee Law (Terminiello 2012). Luis BogadoPoisson argued, however, that while these treaties may have had influence, the Migration Law was fundamentally a product of Argentinas national identity. He explained: Argentina comes from a long tradition of reception of immigrants. Its own dynamic that of receiving migrants is what made it adopt this policy the majority of Latin American countries have ratified the conventions, but this is not reflected in their legislation and in their practice (Bogado-Poisson 2012). The international sphere also had influence in the Migration Law insofar as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was used as a model in writing the new legislation. Several
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convention articles were thereby incorporated into the law. At the time that the law was passed, however, Argentina had not yet signed this international convention (BogadoPoisson 2012). So while the Convention was influential as an inspiration, it did not hold influence as a binding force. Leilo Mrmora remarked that this is one of the first cases in the world where a country incorporated into its national legislation elements of an international convention which it still had not signed (Mrmora 2012). Civil society was also active in the process of developing the Refugee Law, and Ceriani Cernadas noted the particular role that the international United Nations High Commissioner for Refugees (UNHCR) played in discussions of the Refugee Law. UNHCR worked to push a model legislation that it had also pushed in other countries in the region (Ceriani Cernadas 2012; Willalpando 2012). Indeed, the entire South American region (including Argentina) had made significant strides with regards to refugee policy in the signing of the 1984 Cartagena Declaration on Refugees, which recognizes a much more broad understanding of what concerns may justify refugee status than does the 1951 Refugee Convention (Willalpando 2012). Notably, the Cartagena Declaration includes generalized violence and issues that have seriously disturbed public order as potential justifications for refugee status. There was less debate and discursive controversy regarding the Refugee Law (Nejamkis 2012). With regards to the saliency of the human rights discourse in debates over refugee policy, Ceriani Cernadas observed that in general there is a: A more humanitarian viewtowards the issue of refugees. To the point of romanticized, of people escaping armed conflict. And in that sense there is. something akin to an umbrella that protects the issue a little more. That makes it less controversial I think this madethe law pass with less difficulties, although
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it took longer. And now, indeed, the reglamentacin is also taking a long timeit still hasnt been approved (Ceriani Cernadas 2012). Indeed, this view is surprising; as explored in the literature review, cases of refuge and asylum have long been considered humanitarian limits to the States right to dictate its migration policy as a sovereign entity. The internationally accepted norm of nonrefoulement limits a sovereign liberal democracys right to expel foreign nationals if and when their return would imply a risk of death. Conceivably, one may therefore expect that the international pressure to change the Refugee Law would be stronger than that to change Migration Law. International norms with regards to refugee protection are much more firmly established than those regarding migrants rights (Willalpando 2012). Indeed, while traditional migration receiving countries across the developed world have generally increased restriction of their migration policies in the last few decades, many have expanded their definition of what may constitute a refugee; a notable example would be the granting of asylum for forced genital mutilation or forced family planning. Nevertheless, interviewees did not make strong distinctions between the influence of international pressure in passing the Migration Law and those to pass the new Refugee Law. Indeed, Nengumbi Sukama suggests that the change was much more significant and tangible with regards to the issue of migration (Sukama 2012). Marcos Filardi commented: There is a correlation between the Migration Law and the Refugee Law in incorporating this paradigm [of human rights] into the law... In this regard I dont think that there is a discursive difference between the two laws (Filardi 2012). Indeed, interviewees most often suggested the Refugee Law passed in the wake of the Migration Law, an issue swept up in the hubbub and seen as the fulfillment of a desire to create a comprehensive and humanitarian migration policy. Marcos Filardi observed that
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the issues of migration policy and refugee policy always go hand in hand, like two sides of the same coin (Filardi 2012). The order in which the two laws were passed is interesting, however, because other countries in the region have passed Refugee Laws before reforming dictatorial Migration Laws, precisely because the passage of Refugee Laws was less controversial than the reform of migration policy (Terminiello 2012). Filardi did suggest that there was discursive difference depending on which social actor was discussing the issue of migration and refugee law. He suggested that while the UNHCR in particular pushed very hard to delineate between the categories of refugee and migrant, other actors have suggested that perhaps this differentiation is not always so simple to make. He explained: Other actors said well, there is a fine line between one and the other, firstly because the concept of refugee status has been broadened and on the other hand also because it has come to be understood that migration is not a voluntary, beautiful process It is a painful process where there is a permanent imaginary bridge between the place of origin and the place of destination it is not easy to immigrate, it isnt that there are voluntary displacements and forced displacements, it is relative. The central concern of human rights is the right to have a dignified standard of livingin the place where one is bornwhere one grows up, where one is attached and accustomed but as soon as that fails, the right to migrate appears, the right to seek new horizons in another place (Filardi 2012). While the Migration Law represented a significant paradigm shift from previous migration policy, however, the Refugee Law represented the formal codification of policies that had been gradually developed since the return to democracy (Terminiello 2012). The Eligibility Committee for Refugees (CEPARE)7 was created by executive decree almost immediately after the return to democracy, and was minimally regulated by law through
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7!in!Spanish,!the!Comit!de!Eligibilidad!para!los!Refugiados!!(CEPARE).!!
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this decree and additional decrees and resolutions (Terminiello 2012). Although the new Refugee Law replaced the CEPARE with the National Commission for Refugees (CONARE)8 the differences between the two committees with regards to practice were minimal (Willlpando 2012). In this way, many of the practices codified by the Refugee Law were already effectively in place. According to Marcos Filardi, one significant change that the law did bring was a change in paradigm with regards to assistance. He suggests: The Refugee Lawis a law of recognition and protection of refugees, which is to say, one of the objectives of the law is to force the State to keep in mind the protection of the human rights of asylum seekers, not only with regards to the right of shelter from non-refoulement to their country of originbut also that while they make their application they have equal access to the exercise of their economic and social rights, due process, access to justice and more (Filardi 2012). For example, he observed that there was a compositional change in the switch from the CEPARE to the CONARE. Whereas before the CEPARE was dominated by a representative of the Minister of Foreign Affairs and a representative of the Minister of the Interior, who were exclusively dedicated to determining eligibility, for refugee status, with the 2006 Refugee Law representatives of both the office of Social Development and a the National Institute Against Discrimination, Xenophobia and Racism were introduced to the CONARE (Filardi 2012; Labrador 2012). With this change, the committee for refugee eligibility became responsible not only for determining eligibility but also for planning and adopting public policies to encourage the integration of refugees (Filardi 2012). Refugees were also now automatically given legal representation throughout their asylum claim (Filardi 2012; Sukama 2012). Nengumbi Sukama, president of the Argentine
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8!In!Spanish,!the!Comisin!Nacional!para!los!Refugiados!(CONARE).!!!
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Institute for Equality, Diversity, and Integration (IArPiDI) suggests that the provision of legal representation is the most significant palpable change brought about by the Refugee Law (Sukama 2012). And so, we have established that the long-term fight on the part of Civil Society was essential to bringing about a change in migration and refugee policy. But how did these organizations make their arguments appealing to politicians and other citizens? The next section will explore two discursive tools used by these organizations. HISTORY AND CONCEPTS OF IDENTITY Interviewees also pointed to legacies of history and their effects on understandings of national identity as influential in allowing for the passage of the Migration Law and Refugee Law. Two themes in particular were repeated throughout the interviews: 1. The history of migration in Argentina 2. Authoritarian legacies and their impact of understandings of human rights. These themes served as tools that civil society groups and politicians sympathetic to the projects could use in constructing a rhetorical and discursive argument for a change in the Migration Law and, subsequently, the Refugee Law. Interviewees consistently referred to the influence of Argentinas historical experience with migration in influencing the passage of the Migration Law. Generally, they indicated that Argentinas long history of migration in which overall migration were traditionally seen as a positive force for developing the country may have led the Argentine political elite to be receptive to a more open migration policy (Willalpando
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2012; Representative of the IOM 2012; Hermoso 2012). A representative of the IOM Southern Cone Office, who requested to remain anonymous, observed: What one has to understand is that, in contrast to other countries, Argentina has always understood itself as a country of immigrants. And so although the country has sometimes been taken a restrictive view towards migration, that restriction has not arisen from contempt for immigration itself. It is true that there were specific waves of migration that were considered undesirable. At a time migrants of Asian origin [were considered undesirable] at another Jewish migrants, in some earlier contexts gypsy migrants regional migrants That is to say, [which group is labeled as undesirable] continues to change, but always within a political conception that above all, migration is good and we need migrants. You always have to keep that idea in mind, because it can appear contradictory. Hermoso also argued that this conception of identity as a country of immigrants may positively affect the reception towards a migration policy centered in the rights of migrants; she suggests that there was little opposition to the Migration Law, despite its being a very liberal migration policy: We never had many conflicts with civil society in order to put more restrictions in the law. Not in any way. What happens is that our own Argentine society is open because all of our grandparents and great-grandparents are immigrants; my own grandparents are French and Spanish. Like the majority of the Argentine population. And so we have a different worldview. Its a different way of thinking. Different to what is happening in other areas of the world (Hermoso 2012). Several interviewees also remarked that the Migration Law represented a return to the roots of Argentine migratory legislation. They argued that it was the previous migration law the Videla law that actually represented a break with the historical spirit of Argentine migratory legislation, and that the 2004 Migration Law, thought seemingly revolutionary in the global context, was actually a return to the principles that had governed migration in Argentina for much of the countrys history. Here we return to the line of the Constitution examined in the Background, which designates that the rights detailed therein
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are intended for all the men of the world that wish to inhabit the Argentine soil (Gustinianni 2004, p. 13; Terminiello 2012). The Constitution had guaranteed extensive rights for all inhabitants of the Argentine territory, as opposed to restricting these rights to citizens, as other constitutions developed around the same time in the region did do. On this basis, the country had also developed limited requirements for obtaining the Argentine nationality (Terminiello 2012). Supreme Court Justice Ral Zaffaroni also noted that Argentine jurisprudence had also traditionally protected some migrants rights; for example, historically it prevented any person from being blocked from their labor rights because of their migratory status. Proponents of the 2004 Migration Law argue that the constitutional principle of openness to migration was eroded over the course of the twentieth century through the implementation of laws such as the Residency Law and the Law of Social Order. Much of this restriction had been framed on the basis that migrants were a threat to social order (Terminiello 2012). They say that this this erosion culminated in the passage of the Videla Law. Gustinianni has stated: The history of Argentine migration policy was marked by the utilization of myths to make migrants into a scapegoat for all social ills. During periods of military dictatorship, they have been linked with the question of national security, and in times of democracy, [they have been linked] with everyday crime and with competing with Argentines for work, even though these accusations are completely false in light of the facts. (Gustinianni 2004, p. 13). Juan Pablo Terminiello, formerly an officer at UNHCR, suggests that practices established by the Videla Law were contrary to what the national Argentine Constitution says, in particular with regards to the practice of detention and deportation; the idea that an administrative authority had the power to detain a person and deprive him or her of her
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physical liberty and expel them to the exterior of the country is understood by many sectors to be contrary to the guarantees of due process and to individual liberty that are recognized in the national Argentine Constitution. Terminiello adds that these sectors also consider the denial of social services such as access to health and education on the basis of migratory status to be unconstitutional (Terminiello 2012). In this way, civil society advocates were able to argue that an open migration policy would be a return to constitutional principles, as opposed to a completely new paradigm (Terminiello 2012). This phenomenon suggests that civil society advocates were able to use Argentinas migration history and migration policy history as a tool in fighting for a more liberal migration policy, but it seems that this history alone would not have led Argentina to develop such a policy. Indeed, Argentinas history of understanding migration has been twofold; one the one hand, a positive view towards migration as the way towards progress, and one the other, the strong preference for Western European migration, and societal discrimination against migrants from other backgrounds. For example, the dictatorial era Videla Law was called the General Law of Migration and Fomentation of Immigration. While restrictive in an overall sense, the Videla Law maintained a positive discourse towards migration of European origin (Gustinianni 2004, p. 13). In addition to migratory history, the other interesting historical question that arose in interviews was that of the role of authoritarian legacies and human rights. Authoritarian legacies seem to have played an interesting role with regards to the way that civil society organizations framed the issue of migration as a human rights issue. As noted in the previous section on civil society action, many of the organizations involved in pushing for
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a change in migration and asylum policy themselves developed around fighting the military dictatorship and/or working on transitional justice processes following re-democratization. Interviewees noted an effort by civil society groups to purposefully fold the migration law into wider human rights movements in the post-authoritarian society. The human rights organizations chose to emphasize the laws formation under the authoritarian regime in order to undermine its legitimacy and demand change. Ceriani Cernadas suggested that the groups implemented a purposeful branding of the law as the Videla Law in order to emphasize the legislations connection to the now-notorious leader of the junta who signed it into effect: I would say until 2001-2002, the law wasnt known as the Videla Law. There is also a strategic use of the fact that the law was signed by Videla, in light of what Videla represents in terms of violations of human rights and the denial of the process of democratic strengthening, to insert the issue into the human rights agendaof the government. As if to say, well, within the agenda of human rights and of debts of the Argentine State, in addition to these processes of truth, of justice, of memorythere are some laws that were passed by the dictatorship and that reflect the doctrine of national security, like the Migration Lawthe media law, and other laws passed in the authoritarian era (Ceriani Cernadas 2012). Many activists chose to frame the need to change migration policy as a debt to democracy, one of many changes necessary to ensure a full democratic transition (Terminiello 2012; Courtis 2012). The Videla Law was presented as a legacy of the dictatorship in two ways. First, as outlined above, activists suggest that the law represented a continuance of the authoritarian doctrine of the national security under which it was formulated (Morales 2012). In addition to arguing that the law carried with it the securityfocused paradigm of the dictatorship, several interviewees also pointed out that the very legality of a the Migration Law in the democratic context was questionable (Figari Costa
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2012, Perez Vinchich 2012, Alfonso 2012). Nicols Figari Costa, a lawyer at the Argentine Secretariat of Human Rights, explained the notion that the legality of the previous migration law was itself an issue; because the law did not undergo all of the formalities that are required to pass legislation under the Constitution, strictly speaking it was a de facto law rather than a de jure law. A representative of the IOM Southern Cone office, who chose to remain anonymous, detailed the irregular practice by which the Videla Law was passed during the military government: A body that was composed of officers of mid-upper rank coronals or captains three from each of the branches [of the armed forces], was responsible for the elaboration of the lawAfter they reached an agreement, the system of approval was very easy: they gave itto the military junta, and the military junta signed it (IOM Representatives 2012). This process highlights an additional way in which activists argued that the Videla Law represented a debt to democracy; not only did they insist that Videla Law represented the continuance of the authoritarian doctrine of national security, but they also questioned its very validity under the constitution because of the manner in which it was passed through irregular legislative practices during the authoritarian regime. Nora Perez Vinchich of the Ministry of Foreign Affairs noted, when democracy arrived what we had was a law that wasnt a law, it was a state decree that had been born of the institutions that pertained to the military dictatorship, and accordingly was not in line with the constitutional mechanisms for the formation and approval of a law (Perez Vinchich 2012). As Perez Vinchich emphasized, however, we have seen that the questionable legality of the law in and of itself was not enough to prompt a change for much of the democratic period. Indeed, the first democratic administrations, instead of doing away with
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the law, re-regulated it, at times putting in measures that were even stricter and more restrictive than those provided in the law itself (Perez Vinchich 2012). The Videla Law therefore began to be seen as a tangible legacy of the dictatorship and a violation of constitutional precepts, legislative practice and jurisprudence tradition. Zaffaroni argues that the implementation of the law through the bureaucratic system was also mired in dictatorial legacies; specifically, he argues that after the return to democracy, the very bureaucratic apparatus of the State was an enduring legacy of the authoritarian regime. We came out of the dictatorship in 1983, withan inherited bureaucracy, a bureaucracy thatcame from the dictatorship, and came from a culture of bureaucracy that was not in the interest of human rights (Zaffaroni 2012). Zaffaroni observed that this bureaucracy evolved to become more modernized in the democratic period, but that the change came slowly. Nejamkis also noted that some elements of the dictatorship among them, the bureaucratic structure remained potent in society even after a transition to democracy, lingering as traces of authoritarian rule that made it very difficult to truly achieve a full paradigm shift (Nejamkis 2012). The need for a Refugee Law was also presented as a debt to democracy (Terminiello 2012). Looking backwards, the institution of asylum also has an interesting and long-standing history in Argentine migration. Marcos Filardi suggests that under todays definitions of a refugee as codified in the 1951 Convention, its additional protocols, and the Cartagena Declaration, many of our grandparents came as refugees, escaping Nazism or escaping other wars (Filardi 2012). Because at the time that many of these forced migrants entered the country i.e. during the World Wars and the Spanish Civil War these declarations did not exist, these populations were incorporated into
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Argentine society under the migration laws of the era in which they came. And so while historically the issue of forced migration is a personal one for many Argentines, the same is not necessarily true for the institution of asylum as a legal entity. Statements made by politicians such as that included in the introduction from former Minister of the Exterior Jorge Taiana: From our experiences of exile, persecution and hardship during the dictatorship, we have learnt to be generous with people in need of protection. Inspired the question of whether its experience of authoritarianism and human rights abuses forcing citizens into exile would prompt Argentina to have a more generous asylum policy following the return to democracy. When prompted, interviewees often confirmed the expectation that Argentinas own recent history with exile and still fresh identity as a country that produced refugees may have influenced its more open refugee policy, particularly as several prominent members of the legislature and other branches of government were themselves exiled or persecuted under the last military dictatorship. Violeta Correa, a representative of the National Institute Against Discrimination, Xenophobia and Racism and a member of the National Committee on Refugees, strongly agreed with this assertion. Herself having been an exile, she felt that the experience of exile of many Argentines during the dictatorship was influential in discussions of refugee policy. She noted that many politicians would tell stories of their own experiences of exile in deliberations over the law, and that for many formerly exiled government officials: If it has fallen on us to work in the public arena, obviously we take up a certain flag; I have been a refugee, and so I take up a certain flag because I also think that my country has an obligation considering all that other countries have done with respect to our leaving [in exile during the dictatorship] (Correa 2012).
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The representative who presented the Refugee Law to Congress employed a human rights discourse, referring the Argentine past and specifically to the experiences of Argentine exiles in other countries (Terminiello 2012). Several interviewees noted the presence of this discourse in the deliberations over the Refugee Law, and suggested that it continues to be present in the implementation of the law, particularly because many government bureaucrats may themselves have been exiled (Filardi 2012; Terminiello 2012). This experience of exile extends up to the top of government agencies; for example, Rafael Bisela and Jorge Taiana, both of whom acted as Minister of Foreign Affairs under Kirchner, were themselves exiles during the last military dictatorship (Terminiello 2012). Filardi did suggest, however, that while this discourse is clearly present, the degree to which it translates to providing adequate care for refugees is debatable. This discourse is also significant in that for many Argentines the first association that they have with the concept of refugee policy is the forced exile of Argentines during the last military dictatorship (Terminiello 2012). Morales noted the signicance of history in debates over refugee policy: Refugee protection has a particular history in ArgentinaArgentina recognizes that the institution of refugee protection was a fundamental institution during the dictatorship. And so in general, there is a different perception of refugeesYou arent going to find, in general, public reactions against refugees (Morales 2012). Ceriani Cernadas recalled in particular the experience that organizations had working in Argentina with the issue of asylum during the dictatorship, and how this history could have affected the receptiveness of politicians to a more open Refugee Law. During the 1970s and 1980s, the authoritarian regimes across the Southern Cone worked together as part of Plan Condr to repatriate exiles and considered the political opposition of neighboring regimes also to be persons of interest if they entered their country. Because the coups dtats in Chile and Uruguay had happened before the 1976 Argentine dictatorship,
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refugees from these countries had already entered into Argentine seeking refuge when the military took control (Terminiello 2012; Willalpando 2012; Labrador 2012). Less numerically significant refugee streams also moved through the region from Brazil, Paraguay and Bolivia (Willalpando 2012). The military government nominally allowed refugees to pass through Argentina, but under the agreement that that UNHCR would resettle them quickly (Willalpando 2012). Even so, during the Proceso de Reorganizacin Nacional, refugees also became targets of the juntas campaign of terror, and refugees from other Southern Cone countries also counted among the population of desaparecidos in Argentina (Terminiello 2012; Willalpando 2012). The work of the UNHCR in this period, therefore, became to resettle refugees arriving from other countries in extra-regional countries. Similarly, they aimed to resettle Argentines who reached neighboring countries outside of the Southern Cone (Terminiello 2012). Civil society groups who worked with refugees often had to do so largely in secret (Labrador 2012). Ceriani Cernadas recalled the challenges that these groups faced: The first organizations that were working with refugees even when they were not formally recognized as refugees in Argentina because there was no process [for recognizing refugees] were Chilean refugees, obviously, in 1973 with the arrival of people who were escaping the Pinochet coupThat situation[and] the disappearance of Chileans and later Uruguayans, Bolivians, who were in Argentina, in part as refugees, or under protection and the fact that Argentina has also had a significant number of exiles and refugees and refugees in Europe, in the United States, in Mexico, VenezuelaCosta Rica, in different countries in the regionIt seems to me that that also could have contributed to an easier acceptance of the issue of refugees and to a simpler understanding of the question of persecution and the necessity of providing protection (Ceriani Cernadas 2012). Proof of the way in which the institution of refugee status was historically manipulated as a political tool can be seen in the way in which the junta handled refugee
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policy. In the 1980s, when the UNHCR was working to resettle refugees from neighboring regimes because they were unsafe in Argentina, the military dictatorship worked to bring in resettled Laotian refugees. As the international campaign denouncing human rights violations in Argentina had gained momentum, the military dictatorship made a series of gestures to display itself as a government that respected human rights. One of these gestures was the resettlement of Laotian refugees living in camps in Thailand and Cambodia coordinated through the UNHCR (Terminiello 2012; Labrador 2012). Ceriani Cernadas did qualify his suggestion that the history of the institution of refugee law in Argentine history was influential by saying that some of the refugee flows that the country sees today are distinct from earlier flows that arrived in the country that were more similar to Argentine refugees. For example, the situation of Peruvians that came to Argentina in the 1990s fleeing political persecution more closely mirrored the situations of political refugees fleeing the Southern Cone in the 1970s than do some modern flows of refugees arriving in Argentina today. He explained: I wouldnt know what to say to you with regards to whether [Argentinas own experience with exile] still has an influence today. Considering the people are who are coming to solicit asylum in Argentinapeople fleeing armed conflict in Colombia, in some cases Haitiansin addition the asylum seekers from Senegal, who they are no longer going to recognize [as refugees]To me it seems that the cases that are arriving today from different countries in Africa, or Asia, or even Latin America perhaps are not so similar to the processes of refugees and exile that occurred under the Latin American military dictatorships in the 1970s and 1980s (Ceriani Cernadas 2012). Correa also noted that the passage of time might lessen the strength of the discourse linked to the history of exile in Argentina. She remarked that as her generation, which
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experienced exile, gets older, and a younger generation moves into positions of power in the government, the question of exile again becomes abstract (Correa 2012). In general, Ceriani Cernadas observed the discussion about the Refugee Law is an issue thattook a lot less workon the part of all the actors, largely because the issue was less controversial (Ceriani Cernadas 2012). In addition to the historical and moral claims that made the issue of the Refugee Law less controversial, another reason that it may have been a topic of less debate is that the refugee population in Argentina is much less significant in terms of size than is the general migrant population (Ceriani Cernadas 2012; Nejamkis 2012; Terminiello 2012). We have seen that the fight on the part of civil society was essential to a change in migration policy, and that these organizations used (a) international contacts, (b) understandings of migration history in Argentine national identity, and (c) the concept of post-authoritarian legacies in making their arguments more appealing in the general social context. But we must still question why this fight took twenty years in the making. The next section will explore what contextual factors allowed this long-term fight to finally be successful. TIMING AND HISTORICAL CONTEXT As we have explored, interviewees pointed to the fight of civil society groups and the use of historical and identity narratives as essential to the changes in Migration Law and Refugee Law. The question remains, however: why did the change not occur for a full twenty years after the return to democracy? Why did it take so for the migration policy -
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which, as explored above, some advocates hold was not even a constitutionally legal in the first place to be changed? Despite a constitutional reform in the year 1994 and legislative reforms in other areas, migration policy remained largely untouched (Terminiello 2012, Nejamkis 2012). There was no direct correlation between the return to democracy and the imposition of a new or more liberal migration policy (Nejamkis 2012). Indeed, the restrictive legislation of the dictatorship was at times applied even more harshly than it had been under the junta. Successive democratic administrations refined the bill through executive decrees sometimes more restrictive than the law itself rather than attempting to encourage new legislation, and in general migration was not a top item on the agenda of the Alfonsn, Menm or de la Ra administrations (Nejamkis 2012, Terminiello 2012). Under these administrations, the restriction of migration was not justified using an identical national security discourse to the dictatorship, but rather with discourses directly linked to economic concerns (Nejamkis 2012, Terminiello 2012). In this way, democratic administrations particular that of Carlos Menm legitimized the continued use of a dictatorial norm in democracy (Terminiello 2012). A representative of the IOM, who chose to remain anonymous, explained how difficult the migration policy was to change after the return to democracy: In 1984after seven to eight years of repression, the Congress decided to repeal different laws that were devised in the era of the military dictatorship. They repealed a nationalization law, amongst other important norms. And they discussed repealing the migration law. And they didnt repeal it they discussed the issueand the progressive forces, so to say, did not manage to repeal it (IOM Representatives 2012).
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Interviewees pointed to two key and connected historical points that may in part explain why the change in policy came at the particular historical moment that it did: the 1999-2002 economic crisis and the arrival of the Kirchnerite presidencies, with the election of Nestr Kirchner in 2003. The suggestion of the 1999-2002 economic crisis as a contributing factor to the change in migration policy towards a more human rights-oriented policy was one of the most interesting factors suggested by interviewees. This suggestion bucked much of conventional expectations of the effects of economic crisis on migration policy. Although interviewees did indicate that as the economic crisis built up in the 1990s, xenophobia also grew - a correlation that is often expected if not assumed in migration theory they also suggested that in the wake of the economic crisis, the memories of the meltdown actually contributed to the generation of a more humane migration and refugee policy. Many interviewees did argue that during the second half of the 1990s, as neoliberal economic policies pursued by Carlos Menm began to a downward economic trajectory that would eventually crash in the 1999-2002 economic crisis, high-ranking politicians commonly used migrant populations as a scapegoat (Ceriani Cernadas 2012; Correa 2012; Halpern 2012; Terminiello). In particular, migrants were blamed for unemployment and insecurity. While refugee populations were not specifically targeted at this time they were often wrapped up in this anti-migrant rhetoric, particularly because their population is statistically small. Ceriani Cernadas outlined that during the years leading up to the economic meltdown that began in 1999: In Argentina there arose a phenomenon, which is sadly repeated and known in countries that are destination countries for migrants, which is the use of the
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immigrant as a scape goat...Both in the agenda of the media and in the political agenda and the agenda of politicians [and] state bureaucrats at the time, there was an implementation of discourses about the relationship between migration and cholera, migration and unemployment, migration and the increase in drug trafficking, migration and the rise in violent crime, the precariousness of employment, under employment and informal employmentBasically, the ills generated by a whole series of erroneous policies are attributed by some media outlets and by some political sectors to the immigrant, with an additional ethnic component, of course, because in general the migration is indigenous or a migrationwith specific skin and features, etc. (Ceriani Cernadas2012). Alejandro Grimson, a sociologist at the Universidad de San Martn, made a similar observation, directing the blame of social problems at Menems neoliberal polices: The two consequences of the neoliberal modelwhich are unemployment and inequality and violence are blamed on or attributed to the massive presence of migrants from neighboring countries. Or rather, to some degree migrants were used as a scapegoatof these consequences (Grimson 2012). Roberto Benencia agreed that the xenophobic discourse had been used as a way of covering up poor political decisions, but that after the crisis the politicians who had been promoting this discourse shut their mouthsbecause the crisis had been so huge (Benencia 2012). He also noted that this xenophobic discourse of the 1990s was not something that came out of nowhere in this moment, but rather reflected a reoccurring form of discrimination in Argentine society. As explored in the Background, this discrimination is based on a form of racial discrimination between white Argentines of European descent and dark argentines of indigenous descent. This discrimination takes place both within the domestic Argentine population particularly between urban populations of cities such as Buenos Aires and rural populations of the north and south of the country that have a higher concentration of persons of indigenous descent and between native Argentines and migrants, particularly those originating from Bolivia, Peru
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and Paraguay. Benecia referred to the use of the discriminatory term cabecitas negras, which was initially referred pejoratively to internal Argentine migrants who moved from the rural north and south to the outskirts of major cities in the mid-twentieth century, and is also now used pejoratively to refer to Latin American migrants (Benencia 2012). Leilo Mrmora, the director of the Institute of International Migration and Asylum Policies and the former director of the International Organization for Migration Southern Cone Office, suggested a different reason for this rise in xenophobic discourse. He argued that the rise in xenophobic discourse among high-ranking politicians was not a method to combat increasing social discontent with regards to increasing social and economic woes brought about by neoliberal economic policies, but rather was connected to a high level deal between the government and the transnational corporation Siemens to reprint national ID cards and to revamp the technology in border crossings. Mrmora indicated that the deal was fraught with corruption (Mrmora 2012); reports have since alleged that company executives paid more than $100 million in bribes to Argentine government officials including officials as significant as two former presidents and the Director of the DNM in order to secure a $1 billion contract for the company (McCool 2011). It was in connection with this contract with Siemens, Mrmora argued, the government put forth a campaign of xenophobic remarks with the ultimate objective of justifying this large government expenditure. Mrmora recalled a similar campaign of xenophobia to that described by Alejandro Grimson, although he suggested different motivations for its initiation. Like Grimson has detailed in his research, Mrmora noted that the Police Chief cited figures calculating that 50% of detained persons were foreigners, but that in reality while 50% of those detained
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were foreigners, only 20% of those charged and 4% of those found guilty and sentenced to prison were foreigners. So essentially, in the end, the proportion of people found guilty and sent to prison that were foreign-born was proportional to the weight of the foreign-born population on the total population (Mrmora 2012). Interviewees were generally in agreement, in noting that during and following the economic crisis there was a significant discursive change in regards to the attitudes of highranking politicians towards migrants. Many interviewees indicated that the 1999-2002 economic crisis had largely discredited the neoliberal policies of the 1990s and the xenophobic political discourses that accompanied these policies. The political right and dominant discourses lost significant legitimacy in the failure of neoliberal economic policies (Terminiello 2012; Halpern 2012). Interviewees who had suggested that the Menm administration attempted to blame economic difficulties on migrant populations additionally suggested that the discrediting of Menm policies therefore largely discredited this xenophobia. Ceriani Cernadas observed that after the peak of the crisis, in the years 2002-2004, the political discourse towards migration because to changeat first subtly. He recognized several reasons for the change, but emphasized: The magnitude of the crisis of December of 2001 the gravity of the crisis and the exponential increase in poverty rates reached so deeply that it made it very difficult for the continued use of a xenophobic discourse in explaining the crisis to be effective What happened in December of 2001 in Argentina the resurgence of social movements and the reaction to the 20th of December, and the resignation of [President] De La Ra generated. social mobilization, social organization, critiques of political actors or economic sectors and their responsibility for the crisis. In a way, this made almost unviable or unacceptable that anyone wouldtry to insert the topic of immigration as responsible for the crisisArgentine society
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could, in general terms identify those who were truly responsible for the crisis, and by process of elimination they could tell that it wasnt immigrants. I think that this helped Although it wasnt something planned, I think this helped to reduce those [xenophobic] discourses (Ceriani Cernadas 2012). Grimson suggested that xenophobic discourse in Argentina had not reached the point that it has reached in its most extreme forms in Europe and the United States, but allowed it may have been headed that was if it were not for the economic crisis. He remarked that in the 1990s: We are not talking about a violent and systematic xenophobia. Rather, about processes that were beginning to develop towards a rejection of immigrants. This did not fully develop because the neoliberal model exploded andit was so severe, it would be like saying that Greece is in crisis because of immigrants Nobody would believe that. Nobody could believe that Argentinas economy failed in 2001 because of immigrants (Grimson 2012). He also emphasized how extreme this rupture was: And so in fact, in 2002 a president comes into office [Duhalde] that had been the governor of the Province of Buenos Aires, [and] that had launched xenophobic campaigns saying that work was only for Argentines. And during his presidential mandate, which lasted a year and a half, he didnt take any xenophobic actions. Because the social structure had changedthe Argentine crisis generated a slightly exceptional situation, in which there is not a xenophobic climate, and an old discussion, which is the replacement of the migration law, became viable (Grimson 2012). Filardi noted that the crisis provoked an alteration in the understanding of the State as an entity. He observed that during the neoliberal period of the 1990s, The State represented itself as a minimum state, that had to guarantee internal and external security and that was it. Because everything else was left to the market. From 2003 forward, the State begins to take on a new role; the State again takes on a greater role in all areas of society (Filardi 2012). Interviewees suggested that the economic crisis altered the discursive space not only because the failure of the neoliberal model by extension rendered unbelievable the
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xenophobic scapegoating of migrants, but also because it subordinated migration to other issues and because it altered immigration-emigration dynamics in the country. First, several interviewees observed that the issue of migration was simply not a priority in the context of extreme crisis. As Morales noted: What is certain is that in the moment of the crisis, Argentine society was not concerned with migration when the crisis began to increase, the migrant was responsible. Once the crisis reached its worst point, migration wasnt of interest anymore (Morales 2012). Grimson suggested that this mentality extended to the point a few years later when the law was passed, noting: One has to place himself in the context of what was going on in Argentina in 2003. Which was a completely catastrophic situation, socially. Half of the population was living in poverty, twenty-something percent was unemployed, plus those who were underemployed[The law] was a decision of the politicians, it didnt generate a great debate. In its moment it didnt generate much public debate (Grimson 2012). Garca suggests that activists took advantage of what they perceived to be an opportunity to legislate an issue that for centuries no one had been able to resolve (Garca, 2012). While Ceriani Cernadas and Grimson emphasized that at the time the law passed migration was still not a top priority because so many social echoes of the economic crisis remained, however, Hermoso suggested that part of the reason the law could go through is because Argentine society was beginning to see an end to the crisis. She suggests, In 2004 we were already more or less organized in the country, so as to be able to pass this law. Because it had been a proposal in the legislation for some time. Additionally, however, interviewees suggested that concern over migration faded because the crisis altered patterns of emigration and immigration. For the first time in
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Argentinas history, the nation became a significant source country for migrants. At the same time, immigrants residing in Argentina returned to their countries and fewer people were pulled to migrate to Argentina. Ceriani Cernadas citied these shifting dynamics: It seems to me that the phenomenon of emigration also helped in the first stage of this change The Argentine crisis generateda process of Argentines emigrating towards the exteriornot only Spain, or the United States, or Italy, perhaps as principal countries, but also to Chile, to Brazil, also to Uruguay, to Mexico There was also some process of return of South American migrants to their country, as a consequence of the crisis. As well as the appearance in the Argentine media of articles and discourses contraryto what they were saying a year before with regards to immigration. there were parallel processes of Argentine emigration and the appearance ofcases of rejectionor even of deportation of Argentine migrantfrom the United States, or rejection in the airport in Madrid From there, the media began to present the situation of undocumented Argentine migrants, rejected in destination countries, and more than enough examples of current situations of xenophobia or mistreatment in other countries. I think that this also indirectlygenerated a certain new awareness in society with regards to the reception or the understanding of the issue of migration After 2002, with the crisis, with Argentine emigration, it was as if a new scene opened in which the levels of xenophobia were at least lowered, at least in the public sphere. One may not dare to say that it lowered in the everydaybut definitely in discussion of the issue in politics and the media (Ceriani Cernadas 2012). One area of disagreement amongst interviewees was whether this increase in emigration had influenced the Argentine State to change its policy because it was seeking a certain moral authority in international negotiations in order to better negotiate on behalf of Argentine emigrants or to seek reciprocity agreements. Several interviewees did suggest that civil society groups were able to use the need to better advocate for emigrants as an additional reason for which the State should alter the migration policy (Courtis 2012; Ceriani Cernadas 2012; Gara 2012). Ceriani Cernadas explained this perspective, saying that the groups were able to suggest that consistency between the States internal migration policy and the treatment that they were requesting for their nationals living
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abroad would generate a certain moral and political legitimacy that would be helpful in international negotiations. He explained: When Latin American and South American governments begin to critique with increasing harshness in international forums the migration policies of the United States and the European Union, above all and to critique the xenophobia, and the reinforcement of the emphasis on security in the post-9/11 contextand to lament the cases of deportation or rejection at the borderwhat we as civil society groups began to increasingly use was just that: the question of consistency. Of howon the one hand it was goodthat the governments of the region were coming out and questioning and in some way defending the rights of their nationals abroad, but that their own migration policies and normswere equal or in many cases more restrictive, or more directly criminalizing of the migration With laws from the military dictatorship, as was the case in Argentina, as is the case in Chile, as is the case in Brazil, as still is the case today in Ecuador, that they are laws from the 1970s, and concrete practices of arbitrary deportation, of detention, or also situations or discourses of xenophobia (Ceriani Cernadas 2012). Lila Garca recalled that this lack of consistency had been a diplomatic roadblock with regards to Argentine migration to Spain during the economic crisis. She also highlighted the appearance of many news reports recounting the issue of Argentines rejected at the Spanish border or being subjected to xenophobia and discrimination. She says one underlying response from the Spanish government was look, you are not treating migrants in your country any better (Garca 2012). Hermoso explained how the process of seeking reciprocity on the international scale looks today from the perspective of the Argentine State: What we have tried to do from the consulatesis to seek reciprocityat the international level. That is: If I give X benefit to your Spanish citizens, what are you doing for my Argentine citizens? So for examplewith regards to entry in Spain, they were asking for many papers and requirements for entry, and our Ministry of Foreign Affairs is the institution that worksand seeks reciprocity for entry requirements (Hermoso 2012).
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Other interviewees disagreed that the concept of potential reciprocity would have been a significant factor or even something that was consciously on the mind of politicians in deliberations over the Migration Law (Nejamkis 2012). Zaffaroni took a middle ground, in agreeing that increased emigration of Argentines may have increased awareness of the issues that migrants face outside of their countries of origin, but he suggested that this change of paradigm probably was subconscious. He noted that the reports that were surfacing from Spain of Argentine migrants being treated in a completely arbitraryalmost grotesque manner made many Argentines at home indignant. He suggested that this emotional response may have subconsciously created a certain awareness of the problem that restrictive migration laws could present (Zaffaroni 2012). Mrmora agreed that the emigration allowed for an increase in awareness. He suggested that, the immigration narcissism of Argentina, which had thought of itself as only a country of immigration, fell apart, and people realized that Argentines could also be emigrants (Mrmora 2012). Finally, Ceriani Cernadas also observes that in retrospect the Argentine government began to cite the migration law as part of an effort to lift the country out of the economic crisis: To try to justify the why of the change not only as a debt to democracy... but also as a measure that the government took I think, in 2003, more without knowing [what they were doing] that the government took as a step in synchwith other steps to get out of the crisis. He said that looking backwards, the government began to emphasize: How a policy that recognizes equalityand access to rights (health, education, for example)or that includes as a central issue the regularization of migrantsare steps that help to lift the country out of the crisis, because they can help with the social integration of immigrants, which in turn can boost access to employment, for
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improvement in living conditions of those families of those migrant families and therefore the improvement of the general conditions of society (Ceriani Cernadas 2012). Ceriani Cernadas explained that this argument is based in part on the understanding that many immigrants have children who are Argentine, because Argentina operates on a jus soli definition of citizenship, whereby all children born on Argentine soil automatically have Argentine citizenship. Therefore, he argues, this argument is almost a common sense assertion that States that restrictive migration policies directly affect the migratory population, but also indirectly affect the entire society, because a large undocumented population generates situations of insecurity, inequality, job instability, health insecurity, educational insecurity (Ceriani Cernadas 2012). Zaffaroni noted that practically, this argument made sense; there are industries that really dependin large measure on migration.Such as construction. Many interviewees also suggested the new Migration Law took a more practical approach to facing up to and dealing with the realities of migration in Argentina. With such a large area of border, they explained, the idea of controlling migration by restricting entry at the border was not realistic (Zaffaroni 2012; Mrmora 2012; Terminiello 2012; Willalpando 2012). Zaffaroni explained: We have 5,000 miles of border. Which is to say, our border is absolutely out of our controlWith regards to the transport of persons you can control other aspects for example, the arrival of planes but the arrival of people is impossible. Mrmora agreed, and noted that in practical terms it is therefore better to have them regularized and with documentation (Mrmora 2012; Terminiello 2012). Zaffaroni further noted that ignoring the reality of the inevitability of migration to Argentina in the
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past by trying to put into place restrictive measures had only led to situations of significant insecurity. Many interviewees argued that the tight regulations of the Videla law only led to the growth of an enormous undocumented population (Zaffaroni 2012, Terminiello 2012). Zaffaroni recognized two major ways in which the growth of this undocumented population raised significant challenges. First, the migrants themselves were, placed them in a position of vulnerability to exploitation of all types. In addition, however, the State was faced with the challenge of reckoning with a population of almost two million people about whom [it] didnt know who they were nor where they were. Which, instead of creating a more secure situation, created a tremendous situation of insecurity (Zaffaroni 2012). Luis Bogado-Poisson also suggests that restrictive migration policy also allows for the growth of organized crime, which profits from the possibility to engage in trafficking and smuggling of persons (Bogado-Poisson 2012). A common discourse amongst politicians and public figures that was also noted by interviewees is the idea that economic migration itself, and in particular undocumented economic migration, is the result of systemic global inequalities and the perceived negative effects of globalization. This discourse also fit with government discourses in the postcrisis period in Argentina. As Ceriani Cernadas notes: It is the position that the government itself assumed that a lack of documentationis a consequence of structural factors and inequalities on the global level, of the deficiencies of globalization, inequities, asymmetries on the global level. And that in the face of this, the appropriate response is not restriction, but rather to recognize migration as a right, to facilitate regularization, access to employment and equality of rights (Ceriani Cernadas 2012). Similarly, Marcos Filardi argued that often a more restrictive migration policy often corresponds not only with an increase in the undocumented population but also with a
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correlated increase in asylum petitions, as asylum is seen as a possible route to legality (Filardi 2012). The underlying critique of global structural inequalities comes out clear in Senator Gustiniannis commentary on the law: In the globalized period in which we live, we find that the great majority of countries, above all the developed countries, are building up walls, are sounding alarms, and are sanctioning restrictive migration laws The technology and communication revolution has resulted in a greater production than ever before imagined, where the gross product on the international scale has multiplied by fifteen. One factor that played a significant role in these profound transformations has been the exploitation of the work of migrants. Ours is a richer world but at the same time, a much more unjust one. Never before has inequality between the rich and the poor grown so muchCapitalist globalization from a financial and a communication perspective has achieved a planet without borders, while people themselves only encounter increasing barriers (Gustinianni 2004). Gustiniannis own discourse is of the utmost importance, as he was the politician who proposed the bill of the new Migration law in both chambers, because he moved from the lower house to the upper house right as the law was moving through between 2003 and 2004. This passage also reflects the discourse of the Socialist Party, of which he is a member. In his book, he outlines the worldview that motivated him to propose this law: When cohabitation amongst humankind makes the statement my nation is humanity concrete, we will rise to a true world without borders. The global village will be of all and for all, with justice, liberty, equality and solidarity (Gustinianni, p. 17). This discourse also effects the perception of asylum seekers. Whereas often the institution of asylum is in many countries critiqued because of claims that it has the potential to be abused a discourse that has also been heard at points in Argentina, including in the 1990s under this world view, a solicitation of asylum by a migrant who has not suffered
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persecution is seen not as an abuse of the system but rather as an indicator that the migratory system has failed. Ceriani Cernadas explains this paradigm: And so, if ultimately we find migrants that are resorting to the asylum, possibly it is because not in all but in many cases there are elements of the migration policy that are not functioning well (Ceriani Cernadas 2012). Another point with regards to the impact of the economic crisis is the profound effects that the economic crisis had on the Argentine political system. Significantly, the rallying cry of protests in the throes of the crisis was, Que se vayan todos! They all must go!. There was an overwhelming discontent with traditional establishment politics. This discontent had a particularly strong effect on the Unin Cvica Radical (UCR), which is one of the oldest political parties in the country. The UCR suffered in the election largely because the worst moment of the crisis came to be associated with the moment that President Fernando de la Ra, a UCR politician whose father was also in the party, resigned the presidency amidst vast protests and fled the Casa Rosada the executive mansion and offices in a helicopter. These shifting dynamics are significant in that in a large way they disposed with many prominent politicians of the 1990s and opened the possibility of the election of President Nstor Kirchner. Nora Perez Vinchich noted the importance of the political shift that happened over the course of two decades. She described the policy of the 90s as, restrictive because it was a policycentered in the market, it was a purely neoliberal policy, and rather savage (Perez Vinchich, 2012). At this time, she said, migrants began to be blamed for social problems such as unemployment. Lila Garca said that during this neoliberal period, the underlying understanding was that the migrant has to serve some purpose, that migration has to be beneficial (Garca, 2012). From 2003 forward, this political paradigm shifted;
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with the neoliberal paradigm broken, there was a resurgence of this other worldview that also had to do with the universalization that was coming to be in the field of human rights (Perez Vinchich, 2012). The xenophobic discourse that had predominated in the end of the 1990s essentially disappeared from the discursive sphere of the political elite in the federal government (Pacecca 2012). Just because the xenophobic discourse and anti-immigration efforts had been removed from the public sphere, however, did not mean that these sentiments had completely disappeared. Indeed, the law was not even necessarily reflective of larger social change, but rather a shift in the paradigm of the political elite. Lila Garca stated, One assumes thatsince a law came to be that consecrated the right to migrate, something not yet seen in the global sphere it is because the society supports it, [but] it wasnt like this. Several interviewees suggested that the law was far left of the general consensus of the population (Garca 2012, Halpern 2012). While the xenophobic discourse had largely disappeared from the public sphere, it had not completely disappeared (Terminiello 2012). Time and again interviewees pointed to one specific incident as a marker of the continuing presence of xenophobic discourse within certain segments of the political elite and the appeal that this discourse could still have in the public eye: the incident of the Parque Indoamericano (Terminiello 2012; Garca 2012; Pacecca 2012; Halpern 2012). The Parque Indoamericano incident occurred in 2010, when a group of residents from some of the villas de emergencia in the south of the city occupied a public park in a protest to demand better housing programs from the city government. Garca observed that
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they were not only migrants, but nevertheless almost immediately the public opinion was led to believe that the incident represented a demand by migrants. Claims that had been commonplace in the public discourse of the 1990s that they are coming to take advantage of our public spacesthat they arent only going to occupy a physical public spacebut are also going to occupy the hospitals, they are coming to occupy our schools arose in response to this incident (Garca, 2012). In particular, the Mayor of the city of Buenos Aires, Mauricio Macr, made public remarks alluding to these old xenophobic discourses. Specifically, he alleged that migrants heightened to unemployment and were involved in drug trafficking. He also criticized the open migration policy adopted by the federal government, saying it promoted uncontrolled migration. Metropolitan police forcibly removed the protestors, resulting in the death of two people (Terminiello 2012). Interestingly, when asked for an example of xenophobic discourse after the passage of the law, this was the only incident that interviewees could point to. Still, they marked it as significant, because as Garca stated, it marked the reappearance of a discourse that one thoughthad been overcome, that because we had the law and we had achieved that, but no, we hadnt achieved anything, those things continue (Garca, 2012). The comments are significant given that Mauricio Macr is considered a probable opposition candidate in the 2015 presidential elections. Corina Courtis suggested that part of the reason for the emergence of this discourse may have been related to the political conflict between Macr and the Kirchners (Courtis 2012). The nations right-leaning newspaper, La Nacin, also continues to publish articles that put migration in the light of a security risk and that critique the policies of Kirchner administration as too open (Garca 2012).
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But while this xenophobic discourse has been shown to reemerge, the norm of what is acceptable to say has clearly shifted. Macrs remarks were met with strong opposition, and they were the first instance of xenophobia that interviewees noted, which is significant given that the incident occurred in 2010. Sukama suggests that although discrimination still exists, the Migration Law eliminated legalized discrimination (Sukama 2012). Politicians have introduced bills to Congress trying to restrict the provisions of the Migration Law, but to date none of these proposals have been successful (Terminiello 2012). Terminiello offered an interesting interpretation of the Parque Interamericano incident. He suggested that this incident was especially connected to the housing crisis in the city of Buenos Aires. First, he noted that it is important to recognize that since the passage of the Migration Law, Argentina has been in a period of continued economic growth. As such, he suggested, under the conventional understanding that xenophobic discourse increases in difficult economic times, it is not entirely surprising that these discourses have not gained notable clout to date. He argues that while there has not been an economic crisis, there is a housing crisis in the city of Buenos Aires. He explained: This we can say was like a mini-crisis, associated in very specific terms, which is the housing deficit. The exponential increase in housing prices. In this mini-crisis, the xenophobic discourse reappears. And so, what one may ask iswhat will happen if Argentina... enters another period of economic recession? Could the xenophobic discourses reappear? I would have to respond that yes, very probably (Terminiello 2012). The political vacuum that was created in the wake of the economic crisis was also significant in that in many ways it opened up the path for the election of Nestr Kirchner to become a reality. The impact that the entrance of the Kirchner administration had on social and political context, and how this contextual change allowed the new Migration Law and Refugee Law to pass, is the next and final factor that we will discuss.
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Morales observed that in order to understand the drastic change in Argentine migration policy, one has to understand not only the actions that were taken by civil society organizations, but also the political trajectory that took place from 1983 to 2004. In the new space created by the Kirchner administration, an opportunity arose for the very discussion of a change in migration policy to take place. This shift was significant both in bringing about a new Migration Law and in establishing for the first time a Refugee Law (Terminiello, 2012). Of particular import was the progressive agenda of the Kirchner administration and the atmosphere that this agenda generated (Terminiello, 2012). Ceriani Cernadas described the change in the socio-political scene and how organizations were able to use this shift: In the new government that had entered at the beginning of May 2003, [the civil society groups] found a certain articulation or dialogue that until that moment had not existed; it wasnt that the Kirchner administration had the issue of migration in its agenda and had in its platform the reformation of the migration law... Rather the organizations of civil societymanaged to insert this issue into the agenda, and insert it as an issue of human rights.There was a strategic use of the theme of human rights bythe network of organizations in that moment, in part because that was the focus with which they had been working, above all in 2001, 2002 and forward.but also because when the Kirchner administration took power in 2003, it took the theme of human rights as.one of its banners... Obviously thinking of human rights in relation to the processes of truth and justicefirst with regards to the crimes of the dictatorship.but then that permitted that there was a more fluid dialogue between the human rights organizations and the State (Ceriani Cernadas, 2012). Many interviewees confirmed this link, noting that the two objectives that had been emphasized during the Kirchner campaign were human rights issues and regional integration, both of which were reflected in the Migration Law (Garca, 2012; Courtis 2012). The agenda of the Kirchner administration is particularly significant because the executive branch was very supported by the legislation at the time that the Migration Law
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was passed (Courtis 2012). Ceriani Cernadas claimed that although migration as a specific issue was not singled out by Kirchner in his campaign or early on in his administration when the law was being formulated - a few years after the passage of the law the Argentine government began to appropriate this linking of the issues of human rights and migration. And so I think thatin 2004, 2005, 2006 there is a process of more conscious appropriation by the government of the focus on human rights that the nongovernmental organizations had been trying to promote in previous years, and so there begins to be a defense of the new model in the regional and international sphere (Ceriani Cernadas 2012). Many interviewees noted that the emphasis that the Kirchner administration placed on human rights was influential in making the new migration law and its classification of migration as a human right more salient (Morales 2012; Bogado-Poisson 2012). They also observed that these two laws are not the only examples of legislation influenced by the human rights agenda of presidents Nestr Kirchner and Christina Fernndez de Kirchner; Bogado-Poisson observed: [The Migration Law] is not an isolated policy. There is a systematic policy of human rights (Bogado-Poisson 2012). Other examples given of laws formed in this human rights paradigm and/or reformed on the basis of their being lasting legislation from the dictatorial period included the Military Justice Code, the Penal Code, the Law of Access to Information in the Buenos Airs Province, the Equal Marriage Law, and the Law of Gender Identity (Morales 2012, Terminiello 2012; Bogado-Poisson 2012). Interviewees also noted that discussions were opened on the rights of the persons with disabilities, the rights of trafficking victims, and the reform of the media law (Morales 2012, Bogado-Poisson 2012). Other political actions taken under the Kirchner administration, such as the historical memory efforts as well as the effort to overturn amnesties and resume trials of leaders of the military junta were also noted as examples of
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this human rights agenda (Bogado-Poisson 2012). In this way, the work of the government and of civil society particularly with regards to human rights groups coincided (Pacecca 2012). Garca agreed that the theme of reparations for the [crimes of] the dictatorship was a central theme of Kirchners administration platform. In this way, the labeling of the previous Migration Law as the Videla Law, was a particularly salient strategy in the context of the Kirchner administration. Garca describes the dominant sentiment: We will finish with the Videla Lawone of the last terrible traces that we have of the dictatorship; if we want to attack with everything, this is an important debt (Garca 2012). Morales argued that the international sphere was influential; he says that while several laws had been reformed on the national scale in the 1990s, in the previous decade many modifications were directly supported by international negotiations (Morales 2012). Zaffaroni also backed up the notion that inserting the issue of migration into the area of human rights was a strategic move in the era of Nestr Kirchers presidency. He joked: With the Kirchner administrationanything that you can put under the umbrella of human rights is for the best [laughs].for whoever is fighting for the issue, no? (Zaffaroni, 2012). Grimson notes that the Kirchner presidency also marked a shift in the way that Argentina viewed itself in relation to the rest of Latin America. By distancing ourselves from the United States and Europe and coming closer to Latin Americathis neutralized a bit the social xenophobias at least their most political and most public expression. This is not to say that there was no rejection of migrants, but rather to say that this rejection is on a micro level, in the private sphere, in the enclosed space rather than in the public sphere.
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Conceptions of Argentinas placement in Latin America are closely connected to the view of migrants from regional countries. The representative from the IOM noted that it is the treatment of migrants from neighboring country that is the best indicator of changes in migration policy, and where discursive changes are most evident (IOM representative, 2012). In this vein, Kirchners dialogue regionalism and the corresponding embrace of migrants from neighboring countries is one of the most significant changes in the Migration Law. The growing discourse of regional unification especially regarding MERCOSUR was also significant in the formation of the Migration Law (Nejamkis 2012; Terminiello 2012). The Migration Law was in this way reflective of the governments policy of Latin Americanization and changing understandings of Argentinas place in international relations, particularly with regards to the countrys relationship with MERCOSUR and the associated countries (Nejamkis 2012, Courtis 2012; Bogado-Poisson 2012). Nejamkis observed, I think it has to dowith the idea of creating a Latin American identity in contrast to a European identity, an idea that she suggests arose at the turn of this century (Nejamkis 2012). In light of the Euro-centric view of Argentine identity and strong historic preference for Argentine migration that we have discussed in the background, this concept of creating a Latin American identity represents a significant paradigm shift. The increasing influence of MERCOSUR, the Common Market of the South, during the Kirchner administration was undoubtedly important and is evident in the way that the law is structured. Residents of MERCOSUR are given a separate and greatly facilitated process of radicalization and nationalization in Argentina. There was a separate regularization program, the Plan Patria Grande and a new special category of
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residency for migrants that were residents of MERCOSUR and associated countries. (Bogado-Poisson 2012). At the time that the Migration Law passed, MERCOSUR was composed of Argentina, Uruguay, Paraguay and Brazil (at present Paraguay is suspended from the economic bloc until the country holds elections in April of 2013, and Venezuela became a full member in July of 2012). The MERCOSUR associated members are Bolivia, Chile, Colombia, Ecuador and Peru (and at the time of the passage of the Migration Law, Venezuela). The development of MERCOSUR has been crucial in the realm of migration. Zaffaroni agreed that, better relations in the area of MERCOSUR also helped to form an atmosphere in which the new Migration Law could pass. He went argued, we could not keep having a law in these conditions with regards to neighboring countriesit was absurd (Zaffaroni 2012). Still, just as the return to democracy alone was not itself enough to prompt a change in law, as is evidenced by the timeline of events, the formation of MERCOSUR did not instantly change the nature of migration and migratory legislation within the region. Argentina s migration law was passed in 2004, 13 years after the bloc was formed, and was the first of the region to do so. This is to say, the formation of the regional bloc alone, as with the transition to the democratic state alone, was not enough to immediately prompt a change in migratory policy. According to Perez Vinchich, the idea of free movement of workers was an issue that arose at the time of MERCORSURs founding, in 1991. With time, however, as the
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neoliberal policies began more potent in the region, this issue disappeared from the agenda and wasnt really raised again until the next decade. In 2002, the question of free movement again begins to come up. From this point, a conception of the policy of MERCOSUR began to advance, notes Perez Vinchich, that was less purely economistic, less business-oriented. The process of integration begins to be thought about as an integrated processsocial integration, integration of labor markets, cultural integration and economic immigration, obviously, which is the basis [of MERCOSUR] (Perez Vinchich 2012). In 2002, the MERCOSUR countries and Associated Countries Bolivia and Chile signed a Residency Agreement that created the idea of creating a special category of residency for their citizens. Mara Ins Pacecca noted that after the agreement was signed, nothing happened but it was a rather surprising agreement given the context, given that it had been extremely difficult to change the Argentine migration policy (Pacecca 2012). Of the countries involved, Argentina was the first to reform its policy to reflect these agreements (Bogado-Poisson 2012). Perez Vinchich argued that regional integration shifted the paradigm with regards to questions of migration, because no you arent talking about foreigners, youre talking about your own, about a population that is the population of an area in which you are integrated, and that you believe at some point will be part of a singular spaceAnd so, it is very different, for example, to an agreement of free trade, in which the only concern is trade in goods, services, etc. Here we are talking about the integration of populations (Perez Vinchich, 2012). Regional context may also have played a role in the adoption of the Refugee Law. Interestingly, the process to develop the Refugee Law, which began after the Migration
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Law had been adopted, also coincided with the twentieth anniversary of the Cartagena Declaration in 2004. In the same year, Argentina joined the rest f the Latin American region in signing the Mexico Plan of Action to strengthen protection for refugees. The Mexico Plan Action specifically called for countries to develop legal frameworks to ensure better refugee protection (Terminiello 2012). In this way, Terminiello argues, the historic moment in Argentine coincided with the historic moment in the region. Between 2006 and 2012, Uruguay, Chile, Paraguay, and Bolivia also adopted new refugee laws. In Argentina, as in other countries in the region, Refugee Laws are separate to Migration Laws, because the status of refugee is not seen as a migratory status but rather as a granting of protective status (Terminiello 2012). He also suggested that the activists who were working to promote the Refugee Law were aware that this was the opportunitythere was a new governmentthat had a human rights discourse, that had a majority in both houses of Congressand this was the moment to pass the law (Terminiello 2012).
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CHAPTER 6: CONCLUSIONS As we have explored in the previous chapter, my research suggests that the Migration Law and Refugee Law came to be primarily through the long-term efforts of civil society groups that effectively used both conceptions of history and national identity and the influence of international channels in order to made a progressive human rights policy appealing to the Argentine political elite. Importantly, however, their efforts were only ultimately successful because of the significant rupture caused by the 1999-2002 economic crisis and the space that this meltdown created in the political sphere for the entrance of President Nestr Kirchner, who brought to his administration an agenda of human rights and Latin American regionalism. In the context of the literature, my findings were surprising in two ways in particular: first, because the strong influence of domestic factors debunks expectation that human rights norms and discourse are formed first at the international level primarily through international organizations at the United Nations with the prompting of the Global North, and then trickle down to the national level, eventually being diffused through the Global South. In that sense, the findings are in line with the work of Kathryn Sikkink, who asserts that Argentina has been the site of significant human rights innovation. Building off of Sikkinks work, however, my research suggests that this human rights innovation has moved beyond the realm of transitional justice and issues specifically related to the dictatorship, and has extended into other areas of human rights and minority rights protection, such as protecting the rights of migrants and asylum seekers.
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With regards to the question of whether international or domestic influences were more influential in influencing the Argentine State to adopt human rights-oriented migration and asylum policies, domestic forces were ultimately the primary force driving the change. This finding contrasted much of the literature that emphasizes the role of international influences in propelling States to adopt human rights discourse and norms. In the opinions of my interviewees, international factors played very little role in influencing the State to adopt the Migration Law and the Refugee Law. Instead, domestic factors such as the work of civil society groups, national history and identity, and national politics and economics were cited as the leading influences in creating change. By contrast, international factors such as international conventions and cases in the IACHR served as tools that internal actors particularly Argentine civil society groups could use in trying to influence the Argentine State through the boomerang effect proposed by Kathryn Sikkink. The second surprising finding was the influence of the economic crisis in the evolution of a discourse towards migrants in particular. Whereas in the late 1990s the discourse followed the traditionally expected trajectory increasingly scapegoating migrants for economic and social woes as the neoliberal policies pursued by the Menm administration began to result in concerns of unemployment and crimewhen the fullblown crisis hit, this discourse seems to have disappeared from the public sphere. My research indicates that the effects of the meltdown were so far-reaching that they rendered implausible the suggestion of migrants as the primary cause of the problems. In the literature review, we considered Katherine Sikkinks assertion that:
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Argentine human rights activists were not just passive recipients of [the] justice cascade but instigators of multiple new human rights tactics and transitional justice mechanisms, including the trials of the junta and the 1984 truth commission. The Argentine case illustrates the potential for important global human rights protagonism in the creation of new international norms and practices form a country outside the wealthy global North something not recognized by most of the international relations literature and provides material with which to begin to theorize the conditions under which such protagonism can occur (Sikkink 2008, p. 1). The case of the 2004 Migration Law and the 2006 Refugee Law suggests another degree of innovation on the part of Argentine civil society actors and the Argentine State. Interestingly, this case moves beyond issues of transitional justice regarding the violations of human rights committed by the last military dictatorship to expand to the issue of human rights in the area of migration, a realm in which human rights norms have not been well established or accepted on the international scale. While transitional justice measures have been controversial in many post-conflict situations, my findings suggest that these measures may lead to a greater respect for a human rights discourse, not only with regards to the specific injustices committed by the previous authoritarian regime but also with regards to other systemic social injustices. Overall, my findings do suggest that Argentina has become so socialized to issues of human rights that the country is not just adopting and implementing international human rights norms but is actually themselves appropriating the human rights discourse and applying the principles of the human rights movement to internal policy not yet regulated on the international scale. These findings debunk the traditional Top-Down model and suggest that nation-states can themselves be significant players in the development of human rights norms and policies.
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The question remains whether this innovation in Argentine migration and refugee policy can turn into a new degree of global human rights protagonism through the exportation of this new standard of a rights-oriented migration policy. The development of a policy based on Argentinas in Uruguay suggests that this exportation is a possibility, as do discussions of a similar change in migration policy in Chile and Brazil. Studying the cases of Uruguay, Chile and Brazil may allow for a comparative study that would generate greater understanding as to the factors explored in this study in Argentina. The cases of Uruguay and Chile in particular, which share relatively similar migration histories to that of Argentina within the context of Latin America and which had comparable experiences of authoritarian rule and transition to democracy, may provide interesting comparative cases by which to further explore how factors of history and identity such as those explored in this thesis may influence the viability of a migration policy based in a discourse of human rights. Moving beyond the Southern Cone, the next step will be to see if this change can be exported outside of the region of South America, and whether it can potentially defy traditional expectations and move from the Global South to the Global North. It seems that the best chance of the possibility of exporting these progressive models of legislation would lie in the ability of the Argentine State to back their claim that bringing undocumented populations out of the shadows has been beneficial in regards to the economy and security of the country. The ten-year anniversary of the Migration Law in 2014 may provide an important opportunity to measure such effects. A final pending question that merits evaluation is the effect of the Migration Law and Refugee Law on migrants and refugees themselves. Are the rights codified in these two
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laws being effectively protected and promoted by the State and government bureaucrats? The incorporation of human rights rhetoric, after all, does not automatically correspond with tangible impact (Hafner-Burton and Ron 2007, p. 379). Pablo Ceriani Cernadas observes how the change in policy may not necessarily correlate with a significant change in the lives of migrants: The change in law is one questionto translate that change to a change in the daily lives of immigrants is another question. Several interviewees noted challenges that still remain for many categories of migrants (Cervantes 2012, Obesa 2012). One group that is commonly mentioned is unskilled migrants of non-MERCOSUR origin. Despite the implication of universality in that declaration of migration as a human right, unskilled migrants of extra-MERCOSUR origin have few opportunities to obtain legal status. This issue has arisen in particular with regards to asylum seekers whose cases are rejected many of whom are of African origin and migrants from other areas in Latin America such as the Dominican Republic and Haiti that are neither member states nor associated states to MERCOSUR (Sukama 2012). Although these populations are small, the very declaration of migration as a human right implies that regulating their status is also of significance. The DNM is looking into the possibility of signing a bilateral agreement with Senegal to legalize the population of Senegalese migrants that cannot obtain legal status, even under the new Migration Law (Sukama 2012). This effort suggests that the DNM is trying to apply the spirit of the law even where the letter of the law does not allow for legalization. Still, while the signing of a bilateral agreement would allow for the legalization of Senegalese migrants, one can imagine that with changes in migration flows, other extra-MERCOSUR migrant populations could grow and encounter problems of regularization.
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Lila Garca also observed that an unexpectedly high proportion of applications submitted through the Patria Grande program that program which provided regularization for MERCOSUR nationals living within Argentina - were not accepted, and that the reasons for their rejection remains unclear. Understanding why these applications were not accepted is also important. Furthermore, Nengumbi Sukama, the president of the IArPidi, recognized that the realization of legal rights has also presented a challenge with regards to refugees (Sukama 2012). In particular, as the administrative regulation has not yet been passed, there is no clear definition of what assistance the government must provide to refugees (Sukama 2012). Finally, Ceriani Cernadas observes that although the Migration Law in particular represents a large step forward towards creating a more accepting society, it does not necessarily mean that xenophobia has been eliminated, and large challenges still remain in confronting xenophobia on the popular and social level. He critiques that while the government has promoted the new migration policy on the international level, there has not been a corresponding campaign to raise awareness about the rights of migrants among the Argentine populace. Furthermore, he suggests that this fight against xenophobia is still relevant and important within Argentina, and that in his opinion it is necessary to continue working so that: This change in some sectors of the government could end up hopefully sparking a change in the societal discourse in general I dont know if at some point this will happen, but it does have to happen; it has to happen so that policy can be consolidated, because otherwise, despite this advance that there was, unfortunately there is nothing that impedes a movement backwards in the future.In the realm of migration there are many examples of advances and steps backwards in different countries. And so, a step forward does not mean that that step forward is won foreverSo there is work that remains in the realm of discourse, of raising
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awareness, in education, in cultural changes, that has to complement the change that there already was in the legislation and in some areas of the policy. And so you see how there is still so much to do (Ceriani Cernadas 2012).
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APPENDICES APPENDIX 1 Countries that have signed and/or ratified the 1951 Convention Relating to the Status of Refugees:
Participant Signature Accession(a), Succession(d), Ratification 30 Aug 2005 a 18 Aug 1992 a 21 Feb 1963 d 23 Jun 1981 a 7 Sep 1995 a 15 Nov 1961 a 6 Jul 1993 a 22 Jan 1954 a 1 Nov 1954 12 Feb 1993 a 15 Sep 1993 a 23 Aug 2001 a 22 Jul 1953 27 Jun 1990 a 4 Apr 1962 d 9 Feb 1982 a 1 Sep 1993 d 6 Jan 1969 a 16 Nov 1960 12 May 1993 a 18 Jun 1980 a 19 Jul 1963 a 15 Oct 1992 a 23 Oct 1961 d 4 Jun 1969 a 4 Sep 1962 d 19 Aug 1981 a 28 Jan 1972 a 24 Sep 1982 a 10 Oct 1961 15 Oct 1962 d 28 Mar 1978 a 8 Dec 1961 d 12 Oct 1992 d 16 May 1963 d 11 May 1993 d 19 Jul 1965 a 4 Dec 1952 9 Aug 1977 d 17 Feb 1994 a
Afghanistan Albania Algeria Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahamas Belarus Belgium Belize Benin Bolivia (Plurinational State of) Bosnia and Herzegovina 2 Botswana Brazil Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Central African Republic Chad Chile China 3 Colombia Congo Costa Rica Cte d'Ivoire Croatia 2 Cyprus Czech Republic 4 Democratic Republic of the Congo Denmark Djibouti Dominica
28 Jul 1951
28 Jul 1951
15 Jul 1952
28 Jul 1951
28 Jul 1951
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Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Estonia Ethiopia Fiji Finland France Gabon Gambia Georgia Germany 5, 6 Ghana Greece Guatemala Guinea Guinea-Bissau Haiti Holy See Honduras Hungary Iceland Iran (Islamic Republic of) Ireland Israel Italy Jamaica Japan Kazakhstan Kenya Kyrgyzstan Latvia Lesotho Liberia Liechtenstein Lithuania Luxembourg Madagascar Malawi Mali Malta Mauritania Mexico Monaco Montenegro Morocco Mozambique Namibia Nauru
11 Sep 1952
19 Nov 1951 10 Apr 1952
21 May 1952
1 Aug 1951 23 Jul 1952
28 Jul 1951 28 Jul 1951
4 Jan 1978 a 17 Aug 1955 a 22 May 1981 a 28 Apr 1983 a 7 Feb 1986 a 10 Apr 1997 a 10 Nov 1969 a 12 Jun 1972 d 10 Oct 1968 a 23 Jun 1954 27 Apr 1964 a 7 Sep 1966 d 9 Aug 1999 a 1 Dec 1953 18 Mar 1963 a 5 Apr 1960 22 Sep 1983 a 28 Dec 1965 d 11 Feb 1976 a 25 Sep 1984 a 15 Mar 1956 23 Mar 1992 a 14 Mar 1989 a 30 Nov 1955 a 28 Jul 1976 a 29 Nov 1956 a 1 Oct 1954 15 Nov 1954 30 Jul 1964 d 3 Oct 1981 a 15 Jan 1999 a 16 May 1966 a 8 Oct 1996 a 31 Jul 1997 a 14 May 1981 a 15 Oct 1964 a 8 Mar 1957 28 Apr 1997 a 23 Jul 1953 18 Dec 1967 a 10 Dec 1987 a 2 Feb 1973 d 17 Jun 1971 a 5 May 1987 a 7 Jun 2000 a 18 May 1954 a 10 Oct 2006 d 7 Nov 1956 d 16 Dec 1983 a 17 Feb 1995 a 28 Jun 2011 a
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Netherlands New Zealand Nicaragua Niger Nigeria Norway Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal 3 Republic of Korea Republic of Moldova Romania Russian Federation Rwanda Samoa Sao Tome and Principe Senegal Serbia 2 Seychelles Sierra Leone Slovakia 4 Slovenia 2 Solomon Islands Somalia South Africa Spain St. Kitts and Nevis St. Vincent and the Grenadines Sudan Suriname 7 Swaziland Sweden Switzerland Tajikistan The former Yugoslav Republic of Macedonia 2 Timor-Leste Togo Trinidad and Tobago Tunisia Turkey Turkmenistan Tuvalu 8 Uganda Ukraine 9 United Kingdom of Great Britain and Northern Ireland United Republic of Tanzania Uruguay
28 Jul 1951
28 Jul 1951
28 Jul 1951 28 Jul 1951
24 Aug 1951
28 Jul 1951
3 May 1956 30 Jun 1960 a 28 Mar 1980 a 25 Aug 1961 d 23 Oct 1967 a 23 Mar 1953 2 Aug 1978 a 17 Jul 1986 a 1 Apr 1970 a 21 Dec 1964 a 22 Jul 1981 a 27 Sep 1991 a 22 Dec 1960 a 3 Dec 1992 a 31 Jan 2002 a 7 Aug 1991 a 2 Feb 1993 a 3 Jan 1980 a 21 Sep 1988 a 1 Feb 1978 a 2 May 1963 d 12 Mar 2001 d 23 Apr 1980 a 22 May 1981 a 4 Feb 1993 d 6 Jul 1992 d 28 Feb 1995 a 10 Oct 1978 a 12 Jan 1996 a 14 Aug 1978 a 1 Feb 2002 a 3 Nov 1993 a 22 Feb 1974 a 29 Nov 1978 d 14 Feb 2000 a 26 Oct 1954 21 Jan 1955 7 Dec 1993 a 18 Jan 1994 d 7 May 2003 a 27 Feb 1962 d 10 Nov 2000 a 24 Oct 1957 d 30 Mar 1962 2 Mar 1998 a 7 Mar 1986 d 27 Sep 1976 a 10 Jun 2002 a 11 Mar 1954 12 May 1964 a 22 Sep 1970 a
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Yemen 10 Zambia Zimbabwe
18 Jan 1980 a 24 Sep 1969 d 25 Aug 1981 a
Countries that have signed and/or ratified the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families:
Participant Signature, Succession to signature(d) Ratification, Accession(a), Succession(d) 5 Jun 2007 a 21 Apr 2005 a 23 Feb 2007 11 Jan 1999 a 24 Aug 2011 14 Nov 2001 a 16 Oct 2000 a 13 Dec 1996 a 26 Nov 2003
Albania Algeria Argentina Azerbaijan Bangladesh Belize Benin Bolivia (Plurinational State of) Bosnia and Herzegovina Burkina Faso Cambodia Cameroon Cape Verde Chad Chile Colombia Comoros Congo Ecuador Egypt El Salvador Gabon Ghana Guatemala Guinea Guinea-Bissau Guyana Honduras Indonesia Jamaica Kyrgyzstan Lesotho Liberia Libya Mali Mauritania Mexico Montenegro 2 Morocco Mozambique Nicaragua
10 Aug 2004 7 Oct 1998 15 Sep 2005
16 Nov 2001 27 Sep 2004 15 Dec 2009 26 Sep 2012 24 Sep 1993 22 Sep 2000 29 Sep 2008
16 Sep 1997 a 21 Mar 2005 24 May 1995 a
13 Sep 2002 15 Dec 2004 7 Sep 2000 7 Sep 2000 12 Sep 2000 15 Sep 2005 22 Sep 2004 25 Sep 2008 24 Sep 2004 22 Sep 2004
5 Feb 2002 a 19 Feb 1993 a 14 Mar 2003 7 Sep 2000 14 Mar 2003 7 Sep 2000 a 7 Jul 2010 9 Aug 2005 a 31 May 2012 25 Sep 2008 29 Sep 2003 a 16 Sep 2005 18 Jun 2004 a 5 Jun 2003 a 22 Jan 2007 a 8 Mar 1999 21 Jun 1993 26 Oct 2005 a
22 May 1991 23 Oct 2006 d 15 Aug 1991 15 Mar 2012
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Niger Nigeria Palau Paraguay Peru Philippines Rwanda Sao Tome and Principe Senegal Serbia Seychelles Sierra Leone Sri Lanka St. Vincent and the Grenadines Syrian Arab Republic Tajikistan Timor-Leste Togo Turkey Uganda Uruguay Venezuela (Bolivarian Republic of)
18 Mar 2009 a 27 Jul 2009 a 20 Sep 2011 13 Sep 2000 22 Sep 2004 15 Nov 1993 6 Sep 2000 9 Jun 1999 a 11 Nov 2004 15 Dec 1994 a 15 Sep 2000 11 Mar 1996 a 29 Oct 2010 a 2 Jun 2005 a 8 Jan 2002 30 Jan 2004 a 27 Sep 2004 14 Nov 1995 a 15 Feb 2001 a 23 Sep 2008 14 Sep 2005 5 Jul 1995 15 Dec 2008 a
7 Sep 2000 15 Nov 2001 13 Jan 1999
4 Oct 2011
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APPENDIX 2 Coalition of Civil Society Organizations in the Defense of Migrant Rights (Mesa de Organizaciones de la Sociedad Civil en la Defensa de los Derechos Humanos) Argentine Foundation for the Catholic Migration Commission (Fundacin Comisin Catlica Argentina de Migraciones Center for Legal and Social Studies (Centro por Estudios Legales y Sociales) Permanent Assembly for Human Rights (Asemblea Permanente de Derechos Humanos) The Department of Migration at the Office of the Archbishop of Buenos Aires for Migration (Departamento de Migraciones del Arzopispado de Buenos Aires). Labor Union for Argentine Workers (Central de Trabajadores Argentinos) Center for the Latin American Migration Studies (Centro de Estudios Migratorios Latinoamericanos) (CEMLA)
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APPENDIX!3!
Full List of Interivewees Interviewee Bernasconi, Alicia Benencia, Roberto Bogado-Poisson, Luis Organization (s) of involvement Centro de Migraciones Latinoamericanos (CEMLA) College of Agriculture, UBA; Researcher at CONICET Academic secretary at El Instituto de Polticas de Migraciones Internacionales y Asilo Member of the Bolivian diaspora; Representative of VillaMundo Director of the Human Rights Center, University of Lans Office of the Archbishop of Buenos Aires INADI and CONARE Anthropologist, CONICET Secretara Nacional de Derechos Humanos; previously, Fundacin Comisin Catlica Argentina de Migraciones Comisin para la Asistencia Integral y Proteccin al Refugiado y Peticionante de Refugio Researcher at Gino Germnai Migration, Working Group on Population, Migration and Development (UBA) Socialigist at the University of San Martn National Migration Bureau (DNM)
Andia, Norma
Pablo Ceriani Cernadas Cervantes, Jos Juan Correa, Violeta Courtis, Corina Figari Costa, Nicols
Filardi, Marcos
Garceia, Lila
Grimson, Alejandro Hermoso, Fabiana
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Labrador, Elba
Fundacin Comisin Catlica Argentina de Migraciones (FCCAM) Centro por Estudios Legales y Sociales (CELS) Director, Instituto de Polticas de Migraciones Internacionales y Asilo; Former Director, IOM Southern Cone regional office; Former President, INDEC Mujeres Peruanas Unidas Migrantes y Refugiadas Central de Trabajadores Argentinos (CTA) Researcher at Gino Germnai Migration, Working Group on Population, Migration and Development (UBA) Anthropologist at the University of Buenos Aires; Association for Civil Rights Minstry of Foreign Affairs Instituto Argentino para la Igualdad, Diversidad e Integracin (IARPIDI) UNHCR Permanent Assembly for Human Rights; formerly worked for UNCHR Argentine Supreme Court Two representatives of the International Organization for Migration
Morales, Digo Leilo Mrmora
Obesa Navidad Ocar, Carolina Nejamkis, Lucila
Pacecca, Mara Ins
Perez Vichich, Nora Sukama, Nengumbi
Terminiello, Juan Pablo Villalpaldo, Waldo
Zaffaroni, Eugenio Ral Annimos
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APPENDIX 4 Agenda: Seminar on Migration, Cultural Identity and Human Rights 1 SEMINARIO SOBRE MIGRACIONES, IDENTIDAD CULTURAL Y DERECHOS HUMANOS LA ACTUALIDAD DE LOS INMIGRANTES EN ARGENTINA
LUGAR: Auditorio Lectura Mundi - Campus Miguelete de la UNSAM. Buenos Aires, Repblica Argentina FECHA: 28 y 29 de Junio de 2012 ORGANIZA: Secretara de Extensin Universitaria. Direccin de Cultura. CONVOCAN: Centro Internacional de Estudios Polticos UNSAM (CIEP), Instituto de Altos Estudios Sociales UNSAM (IDAES) Organizacin Internacional para las Migraciones (OIM). AUSPICIA: Ctedra UNESCO sobre las manifestaciones actuales de la cuestin social. OBJETIVO GENERAL: Analizar desde diferentes pticas el fenmeno migratorio como generador de necesidades y derechos de los grupos migrantes y como estos construyen nuevas identidades culturales. PROGRAMA PROVISORIO
Jueves 28 DE JUNIO de 2012
18:00 HORAS. ACTO DE APERTURA: MESA DE PRESENTACIN: RECTOR UNSAM Carlos Rafael Ruta DIRECTOR OIM Juan Artola DIRECTOR NAC. DE MIGRACIONES Martn Arias Duval DIRECTOR DEL CENTRO INTERNACIONAL DE ESTUDIOS POLTICOS JORGE TAIANA. EMBAJADORES DE BOLIVIA, PARAGUAY Y PER.
Modera: Alexandre Roig.
20:00 HORAS. CCTEL DE BIENVENIDA
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Viernes 29 de junio de 2012
10:00 HORAS: ACREDITACIONES
10:30 HORAS. MIGRACIONES E IDENTIDAD CULTURAL Alejandro Grimson IDAES-UNSAM Enrique Valiente UNTREF/UNLAM Laura Malosetti IDAES-UNSAM Celeste Castiglione. Modera: Al Mustaf
La identidad de un pueblo reconoce y se apropia de la memoria histrica y marca una pertenencia a un determinado grupo o sociedad con la que se comparten valores, creencias, costumbres, rasgos culturales que se recrean y dinamizan con la interaccin de otras. En la comunicacin directa intercultural pueden encontrarse las estrategias desarrolladas por los inmigrantes en su relacin cotidiana con los diversos grupos culturales con los cuales entran en conflicto o negocian sus identidades buscando un lugar en la nueva sociedad. Entonces, los diferentes flujos migratorios remodelan y matizan con sus prcticas esa identidad. De esta manera nos encontramos frente al hbrido cultural dado por la creciente movilidad de individuos y la influencia de las NTIC. Sin embargo, lo cultural conformado por lo histrico territorial que incluye saberes, hbitos y experiencias organizadas, a lo largo de varias pocas en relacin a los diferentes territorios, permanecen sin ser plenamente diluidos. Las culturas nacionales no se han extinguido pero si expresan modificaciones reconstruyndose permanentemente. Duracin de las ponencias: entre 15 y 20 minutos y al final de cada panel habr un espacio para el debate y las preguntas de los participantes.
12:00 HORAS PAUSA CAF
12:15 HORAS. POLTICAS MIGRATORIAS Director Nacional de Migraciones Martn Arias Duval. Director de Asuntos Regionales MRECIYC Ministro Marcelo Valle Fonrouge. Fondo Argentino de Cooperacin Internacional MRECIYC Andrea Vallarino - Senador Nacional Rubn Giustiniani. Modera: Guillermo Prez Sosto.
Los problemas que caracterizan a la migracin son complejos, siendo una de las causas la desigualdad hacia interior de los Estados y las asimetras socioeconmicas entre los pases desarrollados y subdesarrollados. Los desplazamientos de conglomerados humanos buscando mejorar su calidad de vida provocan un impacto cultural, social y econmico-laboral tanto en los pases de origen como en los de destino. En los ltimos aos este tema se reinstal con mayor fuerza en las agendas polticas principalmente de los pases centrales. En EEUU los candidatos presidenciales en 2008 prometieron una reforma migratoria para mejorar la situacin de los inmigrantes ilegales. La Unin Europea con la crisis econmica ha endurecido su poltica
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migratoria, y en Francia la cuestin de los inmigrantes ha sido central en la ltima contienda electoral. Mientras tanto, los pases de la regin suramericana, apoyados en varios documentos y compromisos internacionales, comenzaron a presentar posturas comunes condenando la criminalizacin de los flujos migratorios, y destacando que la libre circulacin de personas es tan importante como la circulacin de bienes y flujos financieros. Duracin de las ponencias: entre 15 y 20 minutos y al final de cada panel habr un espacio para el debate y las preguntas de los participantes.
13:30 HORAS ALMUERZO
15:00 HORAS MIGRACIONES Y DERECHOS HUMANOS Jorge Taiana Centro Internacional de Estudios Polticos CIEP Eduardo Jozami Centro Cultural de la Memoria Haroldo Conti CCMHC Lucila Nejamkis Instituto Gino Germani/UBA Juan Artola Organizacin Internacional para las Migraciones OIM. Modera: Ignacio Hernaiz (Director IIDH)
La poca actual se presenta como un escenario de resurgimiento, extensin y desarrollo de luchas por la defensa de los derechos humanos en distintos sectores sociales de nuestro pas. Esta dinmica ha generado desde avances en las definiciones conceptuales en la materia, hasta prcticas vigorosas de defensa efectiva de ese tipo de derechos. Junto a estos aspectos, otras acciones se han enfocado en la actualizacin de los marcos jurdicos, en la creacin de instituciones de vigilancia y defensora y, sobre todo, en la generacin de espacios y mecanismos de representacin de intereses polticos y culturales. Duracin de las ponencias: entre 15 y 20 minutos y al final de cada panel habr un espacio para el debate y las preguntas de los participantes.
16:30 HORAS PAUSA CAF
16:45 HORAS LA VOZ DE LOS MIGRANTES REPRESENTANTES DE LAS COLECTIVIDADES BOLIVIANA, PARAGUAYA Y PERUANA. Lelio Mrmora (UNTREF) - Sara Martnez (Programa Provincia 25 Ministerio del Interior) - Lucas Luchilo (Centro Redes) Alfredo Ayala (Presidente de Asociacin Civil Federativa Boliviana - ACIFEBOL) Teresita Asilveira (Comisin de Derechos Humanos de los Paraguayos Residentes en Buenos Aires) Modera: Nicols Bontti
Si bien hoy contamos con una importante cantidad de datos estadsticos sobre procesos migratorios desde y hacia Argentina, todava queda mucho por investigar en relacin a cmo ven la inmigracin sus propios protagonistas. Para entender la situacin en la que se encuentran las distintas comunidades de inmigrantes es importante conocer cules son sus prcticas en el mbito de la
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sociedad civil, y cules sus puntos de vista sobre los vnculos que han ido estableciendo con los distintos pases a partir de su llegada. Duracin de las ponencias: entre 15 y 20 minutos y al final de cada panel habr un espacio para el debate y las preguntas de los participantes. 18:00 HORAS CONCLUSIONES: Carlos Rafael Ruta, Alejandro Grimson, Alexandre Roig. 18:30 HORAS CIERRE
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Constructing Migrants' Rights

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Constructing Migrants' Rights

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Centro de Trabajadores Argentinos Center for Argentine Workers

Direccin Nacional de Migraciones Argentine National Migration Bureau

Inter-American Commission on Human Rights Corte Interamericana de Derechos Humanos

International Organization for Migration Organizacin internacional para la migracin (OIM)

Organization of American States Organizacin de Estados Americanos

A'mural'entitled'La'Despedida''The'Farewell''that'recalls'Argentinas'historic'migration.'The' painting'adorns'the'front'of'the'Our'Lady'of'Immigrants'Church'in'La'Boca,'Buenos'Aires'(photo' taken'by'author)'

A'memorial'to'Juan'Bautista'Alberdi'and'the'tomb'of'Domingo'Faustino'Sarmiento,'both'in'the' Recoleta'Cemetery.'These'Argentine'founding'fathers'encouraged'migration'from'Europe'as'a' means'of'developing'and'modernizing'the'Argentine'territory'(photos'taken'by'author)'

19 Nov 1951 10 Apr 1952

1 Aug 1951 23 Jul 1952

28 Jul 1951 28 Jul 1951

28 Jul 1951 28 Jul 1951

Yemen 10 Zambia Zimbabwe

18 Jan 1980 a 24 Sep 1969 d 25 Aug 1981 a

10 Aug 2004 7 Oct 1998 15 Sep 2005

16 Sep 1997 a 21 Mar 2005 24 May 1995 a

22 May 1991 23 Oct 2006 d 15 Aug 1991 15 Mar 2012

7 Sep 2000 15 Nov 2001 13 Jan 1999

Grimson, Alejandro Hermoso, Fabiana

Morales, Digo Leilo Mrmora

Obesa Navidad Ocar, Carolina Nejamkis, Lucila

Pacecca, Mara Ins

Perez Vichich, Nora Sukama, Nengumbi

Terminiello, Juan Pablo Villalpaldo, Waldo

Zaffaroni, Eugenio Ral Annimos

Jueves 28 DE JUNIO de 2012

Modera: Alexandre Roig.

20:00 HORAS. CCTEL DE BIENVENIDA

Viernes 29 de junio de 2012

10:00 HORAS: ACREDITACIONES

12:00 HORAS PAUSA CAF

13:30 HORAS ALMUERZO

16:30 HORAS PAUSA CAF

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