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Constructing Migrants’ Rights

Constructing Migrants’ Rights

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Published by Kelsey Jost-Creegan
Constructing Migrants’ Rights: Shifting Paradigms and Human Rights Innovations in Argentine Migration and Refugee Legislation

Undergraduate Honors Thesis in Global Studies
University of North Carolina at Chapel Hill
Author: Kelsey Jost-Creegan


This thesis examines the passage of Migration Law 25.871 (2004) and Refugee Law 26.165 (2006) in Argentina. These laws marked a sharp paradigm shift in Argentina’s migration policy, moving away from a migration law crafted in the paradigm of national security under the 1976 – 1983 dictatorship towards these new laws centered on a human rights discourse. The 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 Argentina’s authoritarian past, the research also examined whether ‘political learning;’ may have played a specific role in this case.

The investigation consisted of interviews with politicians, state bureaucrats, civil society members and academics. Findings indicate that domestic factors were more significant than international factors, debunking top-down models of the diffusion of human rights discourse. The research reveals that a twenty-year fight on the part of civil society organizations was the key impetus in ultimately 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 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 Nestór Kirchner, whose administration brought an agenda of human rights and Latin American regionalism.
Constructing Migrants’ Rights: Shifting Paradigms and Human Rights Innovations in Argentine Migration and Refugee Legislation

Undergraduate Honors Thesis in Global Studies
University of North Carolina at Chapel Hill
Author: Kelsey Jost-Creegan


This thesis examines the passage of Migration Law 25.871 (2004) and Refugee Law 26.165 (2006) in Argentina. These laws marked a sharp paradigm shift in Argentina’s migration policy, moving away from a migration law crafted in the paradigm of national security under the 1976 – 1983 dictatorship towards these new laws centered on a human rights discourse. The 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 Argentina’s authoritarian past, the research also examined whether ‘political learning;’ may have played a specific role in this case.

The investigation consisted of interviews with politicians, state bureaucrats, civil society members and academics. Findings indicate that domestic factors were more significant than international factors, debunking top-down models of the diffusion of human rights discourse. The research reveals that a twenty-year fight on the part of civil society organizations was the key impetus in ultimately 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 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 Nestór Kirchner, whose administration brought an agenda of human rights and Latin American regionalism.

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05/14/2014

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 nation-

citizen 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.

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

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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.

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

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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.

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

!

8!

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

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

!

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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.

What’s 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 Fernández 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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4

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.

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

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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*!

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

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can allow us to explore how the State frames a certain issues and how the State wishes to

project itself. What’s 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 country’s 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

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

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12!

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 Argentina’s 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

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

!

13!

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.

Kelsey Jost-Creegan
Senior Honors Thesis
Curriculum in Global Studies, UNC-Chapel Hill

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14!

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