International Review of Law and Economics 23 (2004) 345–364

Cooperation in the shadow of regulatory competition: the case of asylum legislation in Europe
Ségolène Barbou des Places a , Bruno Deffains b,∗

European University Institute, Florence, Italy, and Faculté de droit et Sciences Economiques, Université Nancy 2, France CREDES, Faculté de Droit et Sciences Economiques, Université Nancy 2, 13 Place Carnot, c.o. #26, c.o. 26-13 Place Carnot, Nancy Cedex 54 035, France Received 15 December 2002; accepted 20 July 2003


Abstract Traditional analysis considers that the granting of protection to refugees is an international public good, and thus explains both the heterogeneousness in refugee protection in Europe and the spiral that has hardened the EU Member States’ asylum legislation from the mid-1980s onwards as the result of free riding in the provision of the good. In contrast, the paper considers that the heterogeneousness in refugee distribution is best explained by the joint product model and that the spiral of restriction is best explained by the common pool resource model and regulatory competition theory. The paper explains, and gives empirical evidence of the emergence and development of a competitive game among the EU Member States, and shows the result and the consequence of this upon cooperative attempts among States. © 2003 Elsevier Inc. All rights reserved.
JEL classification: K3 Keywords: Asylum; Refugees; Regulatory competition; Joint product; Common pool resource

1. Introduction The current establishment of a European common asylum policy raises two main questions. The first question is: How can an equitable distribution of asylum seekers among EU

Corresponding author. Tel.: +33-3-83-19-26-52; fax: +33-3-83-19-25-33. E-mail addresses: (S.B. des Places), (B. Deffains).

0144-8188/$ – see front matter © 2003 Elsevier Inc. All rights reserved. doi:10.1016/j.irle.2003.07.001


S.B. des Places, B. Deffains / International Review of Law and Economics 23 (2004) 345–364

Member States be ensured? It is the burden sharing objective. The second question is: How can a European legislation that is fair to asylum seekers and refugees be enacted, i.e. that provides protection in accordance with the standards of the 1951 Geneva Convention on refugees? More generally, the issue at stake is the organisation of cooperation among States that, for many decades, have unilaterally decided and implemented their national asylum policy. To encompass all these issues, it is necessary to have a complete view of the asylum policies in the EU before the Treaty of Amsterdam 1997, i.e. before the EU Member States established a European asylum regime. In particular, two striking phenomena must be explained. First, the unevenness in refugee distribution and protection among EU Member States. It is crucial to determine the causes of the heterogeneousness in asylum policy and to evaluate whether, when it leads to a situation of unequal distribution in Europe, it is problematic or compatible with the development of a European asylum policy. Second, we must explain the causes, and evaluate the result and effects, of the spiral of restriction that characterises the evolution of Member States’ asylum legislation from the mid-1980s onwards. All of the EU Member States have introduced a wide range of procedures relating to the arrival, admission and entitlements of people wishing to claim refugee status in their territory. They have enacted restrictive legislation, preventing asylum seekers from entering into national territory and modified the procedural guarantees for the asylum application examination in order to restrict them. In addition, they have withdrawn social welfare and legal aid entitlements, limited the right to work and to education for asylum seekers and their families. Finally they have developed measures to encourage the return or repatriation of asylum seekers to their country of origin. While this evolution has been well documented in legal literature (Bouteiller-Paquet, 2001; Crépeau, 1995; Jeannin, Meneghini, Pauti, & Poupet, 1999; Joly, 1999; Noll, 2000), there is a dearth of analysis using a law and economics approach. The rare economic analysis that study the asylum issue, generally in an international perspective, assume that the provision of refugee protection is an international public good (see in particular Suhrke, 1998), and thus implicitly admit that both the heterogeneousness of asylum seekers distribution in Europe and the spiral of restriction in asylum legislation are the result of free riding in the provision of the good. Yet empirical evidence does not confirm such theoretical expectations deriving from the public good characterisation. For this reason this paper mobilises the joint product and the common pool resource models, together with regulatory competition theory, in order to explain the heterogeneousness in refugee provision and the spiral of restriction. The paper deliberately proposes a law and economics perspective, and thus stresses the consequences of legislative amendments on the choice of rational actors via their impact on the costs and benefits of decisions. The paper builds upon the chronological evolution of the EU Member States’ asylum policy. Section 1 shows that after the Second World War, European States had generous asylum policies and welcoming legislation, and the heterogeneousness in the reception towards refugees among Member States was not considered problematic. This situation can only be explained if we consider that the good, which is to provide protection to asylum seekers and refugees, is not an international public good but a joint product, i.e. States could expect private benefits from hosting and protecting asylum seekers and refugees. In addition, the joint product model permits an understanding of the formation of an alliance. But, as

and show the excessive efforts by the EU Member States. we reach some general conclusions with regards to our central questions: What is the optimal asylum policy both for asylum seekers and Member States in the EU and how should such an optimal policy be established? 2.B. The differences in asylum legislation also influence the distribution of refugees and create differences in “burden”. 2. by the mid-1980s. As benefits have decreased and costs increased. We then compare the theoretical explanation with empirical evidence and show how competition was started and developed. we deem that the inequitable distribution is the result of differences in legislation that come. the number of asylum applications dramatically increased and there was a shift in asylum policies. 1998). Then we turn to the current development of the (post-Amsterdam) European asylum policy and evaluate what the conditions for efficient cooperation in the field of asylum could be. to safeguard the lives and liberty of people whose basic rights have been threatened in their country of origin. in accordance with the common pool resource model. ethnic or family ties (see Bocker & Havinga. States have started competing for a new good: to grant as little protection as possible. Deffains / International Review of Law and Economics 23 (2004) 345–364 347 Section 2 explains. Finally. B. and more specifically since the end of the Second World War.S. the asylum seekers’ perception of the States’ goals. States have devoted a considerable amount of effort and resources to the task of providing refugees with international protection.1. In Section 3 we evaluate the result of the competitive game and conclude that it is negative. States started competing to prevent asylum seekers from accessing their territory and claiming refugee status. from the existence of private benefits in providing protection to refugees. Their purpose has been twofold: first. We show that the many attempts to set out cooperative schemes between the EU Member States have failed “in the shadow of competition”. However. The previous alliance was thus replaced by a process of regulatory competition that can be interpreted using the common pool resource model. In Section 4 we discuss the possible forms of cooperation among the EU Member States likely to replace or limit the negative competitive process. Such provision. In contrast. the majority of refugee law specialists explain the uneven distribution of refugees in Europe by free riding strategies. as the joint product model explains. des Places. Geographic proximity to the region in crisis. Benefits of providing protection to asylum seekers and refugees “Throughout the 20th century. We therefore explain the spiral of restriction. and second to safeguard their own interests by ensuring that large-scale population movements are managed in a predictable manner and in accordance with agreed principles” (UNHCR. 1997). Many factors explain this unevenness in refugee distribution. whether it takes the form of directly granting . This description can help understand the goals of States which provide refugee protection. Heterogeneousness in the provision of refugee protection: an explanation using the joint product model There have always been important differences among the EU Member States in the accommodation and protection of asylum seekers and refugees. thus assuming that the provision of protection to refugees is an international public good.

des Places. institutions and processes of that system are not threatened”. the majority of specialists argue in favour of an international public good. Such arguments have been applied in the NATO context to explain not only the motives for cooperation on national defence but also to demonstrate that the members of an alliance have an incentive to cheat by free riding on the common security provided by other members. irrespective of which country receives refugees”. 1982). Deffains / International Review of Law and Economics 23 (2004) 345–364 asylum or the form of voluntary contributions to refugee agencies. Germany is a significant example.1 States can also expect altruistic benefits. cooperation produces positive-sum benefits which in turn create the will to share the burden among actors as the benefits of the contribution exceed the costs of the contributors. According to Acharya and Dewitt (1997).348 S. According to Suhrke (1998). Together with direct security benefits. such altruistic benefits result mainly from the incidence of provision for refugees on the reputation of the country. Refugees may ‘threaten’ governments and social harmony because they create serious financial and social burdens on the receiving nations. Increased security can be regarded as the principal benefit of managing the population of asylum seekers and granting asylum. Security benefits can be expected because once displaced beyond their national borders. provision for refugees yields non-excludable and non-rival benefits for the 1 Of course these benefits have to be balanced with indirect security burden as defined by Milner (2000) that concern the impact of refugees on distributive justice and political opportunity within a given State. Firstly. according to public good theory.B. cooperation should produce a level of provision of a valued public good which individual States cannot attain on their own. Suhrke (1998) also explains Western countries’ involvement in resettlement plans in the aftermath of the Second World War by their willingness to gain a “good reputation”. providing protection to asylum seekers and refugees). “if one State admitted refugees. .e. can be conceptualised as producing two kinds of benefits for States: security and altruistic benefits. because the accommodation of refugees potentially reduces the risk of refugees spreading the very conflict from which they are fleeing. It is generally acknowledged that altruistic externality arises when “the donor derives utility from knowing that less fortunate people are better off” (Sudgen. The consequences of this interpretation are important. B. The image of a State that is protective of human rights is one of the major benefits that a State can expect when it develops a generous asylum policy. As they consider that security and altruistic benefits are non-excludable and non-rival. Interestingly. The analysis of the benefits of regulating and granting asylum permits the discussion of the nature of the good (i. the others would benefit from the greater international order that ensued regardless of their own admissions. most studies adopt a similar vision for asylum and consider that by improving the well-being of those in need. security comes from “the ability to control entry and exit so that the core values. asylum seekers and refugees may constitute a potential threat to other States. so refugees provision is an international public good from which all States benefit. The problem exists because it is in the interest of an individual member to free ride on the efforts of others. In the field of asylum. where the right to asylum was incorporated into the Constitution in order to compensate for the shame of the Second World War acts. Public goods theory thus suggests that we should expect a significant under-provision of international public goods in the absence of central taxation and enforcement authorities. At an international level.

Far from free riding. How can such a situation be explained? The most convincing argument is that the provision of protection is more likely to yield some private benefits (reputation of a major promoter of human rights and/or security benefits when the contributor is near the region of instability).2 In the case of refugees. despite being smaller in terms of their GDP.3 But in the 1990s. for which the will to provide increases with the GDP. another consequence can be anticipated according to the “exploitation hypothesis” given by Olson and Zeckhauser (1966). Using a Spearman rank-correlation test. In light of the assessment of private benefits it makes sense to use the “joint product” theory developed by Sandler and Hartley (2001) whereby activities are 2 In an effort to confirm this hypothesis.2. one finds that the top positions. as NATO’s largest State.S. 2002). The idea is that if there is a positive and significant correlation between the GDP and the asylum provision as a proportion of the GDP amongst the EU Member States. . there is “exploitation of the big by the small” such that the EU asylum provision is an international public good. According to their argument. We will therefore observe a systematic tendency for exploitation of the big by the small.B. larger States will have an incentive to contribute a disproportionate share to the overall effort. Last. B. des Places. From public good theory to joint product model We now have to assess these theoretical expectations in light of empirical evidence. the highest burdens. As a result. public good theory predicts sub-optimal public good reimbursements because a contributor will not account for the spill-over benefits that its contribution confers on others. They have shown that the United States. there was no empirical support for the exploitation hypothesis. Betts (2002) sought to ascertain whether the GDP is rank correlated with the level of burden borne. a number of studies have analysed the correlation of defence spending and GDP in the NATO context. They indicate that if one ranks the number of annual asylum applications in proportion to the size of a Member State’s population or GDP. has contributed a disproportionate share of the burden for common defence. are predominantly taken by smaller States (Thielemann. several economically smaller States such as The Netherlands and Denmark provide proportionally high levels of asylum. bear far less of the burden (Betts. it can be anticipated that rich nations shoulder a disproportionate burden of the good for poor nations in terms of the share of the GDP allotted to provision for refugees. i. Free riding is logically expected because States rely on the payments of others by withholding some or all of their estimated expenses. while some larger States. 3 The author assumes that the EU asylum provision is a normal good.e. Is the international provision of protection for refugees a public good? The rare contributions that use the Olson–Zeckhauser test show that the granting of asylum fails to conform to the pure public good model. 2002). it is ceteris paribus the larger States whose action will make more of a difference to the total common effort than the action of small States. such as Italy and France. Secondly. Statistical insignificance suggests that the level of free riding by poorer States on wealthier States is limited and that provision for refugees cannot be described as a pure public good. The pure public good benefits thus fail to explain why some of the EU Member States unilaterally provide a disproportionately higher level of asylum provision than others. 2. Deffains / International Review of Law and Economics 23 (2004) 345–364 349 community of nations.

Furthermore. We now propose to provide evidence 4 It is important to note that the portion of the public ingredient found in joint products depends on the ratio of excludable benefits (i. for many years. sub-optimality will be attenuated as the share of nation specific benefits increases. As the conditions for refugees’ reception and protection are not identical in the Member States. The spiral of restriction in refugee protection: a common pool problem The content of legislation not only influences the differences in the burden among the EU Member States but also impacts on the nature of the game. then it may carry a relatively heavy burden. State specific benefits) to the total benefits. The joint product approach also explains why. we deem that the heterogeneousness of provision of refugee protection among Member States and the correlative uneven distribution of refugees among them is the result of the difference in specific benefits rather than the result of free riding. If the portion of jointly produced private benefits is considerable enough with regard to the total outputs. If a poorer State receives a large amount of nation specific benefits. B. In addition. NATO burden sharing behaviour is generally considered optimal if nation specific benefits are integrated. We may also understand that the country “closest” to a particular conflict from which refugees emanate has the greatest interest in stabilising the crisis through the accommodation of refugees (e. 2002). in the decades following the Second World War. Thus.g. asylum seekers may choose their destination State on the basis of a preference for the country that provides better treatment: this is the “asylum shopping” strategy. If. This has implications for the forming of alliances if alliance design allows potential allies to take advantage of ally specific benefits as well as excludable public benefits. as regards the provision of protection for asylum seekers and refugees. Deffains / International Review of Law and Economics 23 (2004) 345–364 characterised as yielding both pure public good benefits for the community as well as contributor specific benefits. contributing to the activity may even become the dominant strategy. Yet the joint product model does not offer an analytical framework that is capable of explaining the substantial changes that took place in the mid-1980: a spiral of restrictions in refugee legislation appeared. we may therefore expect an inequitable distribution of refugees in the European Union as the private benefits differ from State to State.4 If we decide to apply the joint product model to the asylum issue. 3. for example.350 S. the game was an alliance: Member States were “spontaneously” contributing to the general aim of providing protection.e. provided disproportionately high levels of refugee protection. Disproportionate burden sharing need not occur. such as status enhancement. This theory helps explain why the collective action implications. . For example.B. then an efficient allocation will be achieved since the benefits will match marginal costs. There is also substantive evidence for the claim that a country’s willingness to host refugees is positively related to its more general commitment to norms such as human rights protection and solidarity (Thielemann. so the burden cannot simply be correlated with an income measurement. all derived benefits are nation specific. We propose to use the literature on common pool problem to explain this phenomenon. joint products may give rise to a coordination game in which one of the Nash equilibria has all players contributing to the collective action. the case of Austria during the Balkan crisis). This is well evidenced by the fact that the Scandinavian States and The Netherlands have. differ from those resulting from the pure public goods scenario. des Places.

B. According to Velling and Woydt (1993). First. The previous cooperative game has been replaced by a competition in legal procedure. The costs of integration have thus increased. we argue that the change in asylum policies comes from the change in costs and benefits of providing protection. The number of asylum applications in the European Union increased six-fold from the early 1980s to the early 1990s. Therefore.000 at the beginning of the 1990s. . the increase of costs has generated a change in behaviour. Table 1 highlights this major change in asylum seekers trends and the massive increase of asylum seekers in Europe. it increased from FF 52. administrative and social costs. In addition. However. After the fall of the Iron Curtain. The origins of regulatory competition The first question is: Why did a process of competition start among Member States and lead to a spiral of restriction in refugee protection? As the costs and benefits are central to our analysis. for example.B. 3.1. Austria.000 to DM 15. At this stage a change appeared in the game played by the States due to the emergence of a “new” good. In France. we consider that the actual number of asylum seekers is a more accurate representation of the burden borne by a given State than any attempted estimates of expenditure levels that could be derived from the available data.7 million alone. But most of all. benefits have significantly decreased. Germany took 2. The instrumental use of the right to asylum granted to people fleeing persecution from communist countries before the fall of the Iron Curtain turned out to be meaningless. Secondly.5 million while the other eight Member States dealt “only” with a million asylum applications. including some within Europe itself (ex-Yugoslavia). altruistic benefits and reputation effects have decreased. recession and unemployment and the benefits of hosting immigrants have dropped. The 1990s witnessed an eruption of conflicts that led to mass refugee movements. des Places. the marginal cost of asylum policy is certainly growing. the costs have grown with the number of refugees within the territory. as every examination of an asylum application implies financial. From an EU total of 5. 5 Following Jandl (1995) and Betts (2002).S. France. refugees have an impact on distributive justice and they create serious financial and social burdens on the EU States. the opportunity cost for host countries became very high (and probably superior to perceived benefits) during the 1990s. Sweden and the United Kingdom accounted for another 2. Deffains / International Review of Law and Economics 23 (2004) 345–364 351 and explain the development of a process of regulatory competition among the EU Member States’ asylum legislation. Belgium.5 million in 1992 to DM 486 million in 1993. If we add the social and political costs that States bear when the number of refugees increases.5 In addition.9 million in 1990. As a consequence. costs have increased because of changes in migration trends.9 million in 1988 to FF 142. this increase has affected Member States differently. Asylum seekers who were traditionally European and skilled migrants have been replaced by less skilled asylum seekers coming from other regions of the world and of different ethnic origin. 50% of which may be accounted for by way of welfare benefits and 50% by way of the costs of accommodation and administration. The Netherlands. and in Germany from DM 143. the budgets of the government offices in charge of asylum procedures dramatically increased. the average annual cost of an asylum seeker in Germany was DM 12.7 million asylum applications in the period 1980–2000. all the EU Member States have faced economic difficulties. Moreover.

230 16.860 22.640 95.549 Denmark 70 120 300 800 4.040 4.650 5.500 46.350 1.690 24.280 2.640 600 1.730 2.660 12. n.100 18.a.000 11.a. n.140 11.930 26.370 32.870 27.730 4.a.980 6.830 43.820 49.a.080 5.400 22.240 4.220 39.050 12. n.640 9. Deffains / International Review of Law and Economics 23 (2004) 345–364 Table 1 Asylum applications in EU Member States 1980–2001 (UNHCR.350 98.120 610 380 70 280 440 330 160 80 260 690 2. B.640 26. n.560 6.020 37.110 3.910 38.370 104.a.a. 1999) Austria 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 9. 20 10 20 30 20 20 50 60 180 2. 30 40 90 360 420 1.970 35.420 19.420 12.340 29. n.363 Greece 1.020 71.130 3.640 4. n.420 3.020 840 850 710 970 1.290 2.400 52.410 21.900 32.390 37.300 43.170 34.651 France 19.230 7.380 30.650 1.620 11.180 2.320 193.560 5.910 4.280 73.300 7.110 438.080 4.380 2.210 44.710 28.790 1.420 27.740 35.350 21. 12.080 121.a.940 116.510 22.840 24.210 21.430 11.a.420 6.650 Ireland n.910 19.240 1.620 Luxembourg n.170 17.000 9. n. n. n.080 8.350 35.B.080 6.a.830 99.403 Finland n.640 3. des Places.870 13.910 2. n.135 Belgium 2.a.040 1.420 1.a.120 33.190 450 760 1.270 4.380 28.520 4.810 47.070 16.360 2.a.470 6.000 14.650 26.170 1.650 57.352 S.650 88.513 United Kingdom 2.579 Portugal 1.390 5.995 .300 23.560 25.720 13.310 16.990 5.730 680 1.910 20.990 6.350 61.900 21.430 4.610 22.630 11.a.670 34.120 4.880 14.400 4.a.900 7.410 15.790 21.310 8.110 12.000 6.850 810 1.680 70.960 20. n.950 10.080 8.090 14.990 10.910 630 689 The Netherlands 1.a.350 2.219 Sweden n.960 15.800 10.950 1. n.610 127.460 74.150 75.050 7.650 10.990 12.a.210 127.140 3.090 770 450 270 300 370 310 200 192 Spain n.280 30.650 6.270 3.980 5.840 11.260 34.260 22. n.920 6. n.290 27.350 84.a.640 11.480 11.740 2.110 117.020 2.410 7.a.670 1.220 4.780 42.420 54. n.210 2. n.580 18.590 11.060 256. 330 2.a.790 2.590 1.300 7.970 29.902 13.a.790 27.600 18.620 20.280 18.750 9.910 3.260 4.720 8.a.460 1. n.640 5.110 19.a.300 1.930 8.650 8.a 390 260 430 1.a.790 21.500 14.810 20. n.170 2.570 6.170 17.480 7.930 9. n.180 3.680 4.600 5.360 14.263 Germany 107.310 1. n.880 4.880 22.324 Italy 2.230 6. n.750 5.640 5.830 26.380 103.710 2.210 6. n.300 2.030 1.350 11.310 5.860 11.700 9. n.a.480 4.240 2.640 32.390 4.310 5.630 2.a.a.190 322.440 45.570 29.600 30.530 3.050 5.130 3.710 12.a.a. n.350 12.590 47.

there are many obstacles in the way of asylum shopping and not all asylum seekers choose a destination State on the basis of the expected legal treatment (see Bocker & Havinga.B. In fact. As noted by the authors. A “new” good and a “new” game Let us consider that there is a fixed number of asylum seekers and that asylum seekers are costly for asylum countries. des Places.S. 2003).6 In that case. thus reducing the number of persons enjoying protection. 2003). if the reality of the arbitrage among legal norms might be a weaker factor than expected. The vector of exogenous variables included several indicators for socio-economic and political positions. The result was the emergence of a competitive game. respectively. Taking the example of France and Germany. Despite its isolated nature. and Zimmermann (1996) first looked at national legal measures for asylum migration and their actual effects on the partner countries. It is rival because lowering the number of asylum seekers enjoying protection in one country tends to increase the number of persons claiming protection in the other countries. We deem that this theoretical expectation is met in practice. . together with political declarations provide evidence of the conviction that protective legislation is an attractive policy. But. In the mid-1980s. As a consequence. the study shows 6 This proposition is not incompatible with the fact that immigration of workers in principle increases the welfare of economies. there is a “good” for which the EU Member States compete through the designing of asylum rules: “to provide as little protection as possible”. Deffains / International Review of Law and Economics 23 (2004) 345–364 353 3. due to the greater availability of a production factor. 1998). Yet. we simply assume that the costs could exceed the benefits of the reception of refugees. This implies that each country is able to influence the number of asylum applications by changing its asylum legislation: by becoming more restrictive a country deters future applicants. They wanted to find empirical evidence for existing interdependence between asylum migration to France and Germany. Analyses of public opinion. The observation of the law suppliers’ actions shows evidence of the States’ reaction function. as rivalry among jurisdictions (Deffains. Potential spill-over caused by national legislation was modelled by including the legal procedures of a country in the equation for the other one. States were responsive to asylum seekers’ preferences. Vogler. The good is non-excludable because no State can be excluded from enacting legislation that lowers the level of protection granted. with high unemployment and structural strains on social budgets in Europe. the real or perceived threat of huge flows of migrants entering their territories gave Member States an incentive to adapt their legislation following the example of their direct competitors. Therefore the identified good is an international common pool resource so that the fundamental condition for regulatory competition is satisfied (Kölliker. 2001). “the most important finding is that the French law reforms in 1991 resulted in an increase of asylum seekers coming to Germany instead”. They were convinced that asylum seekers were comparing the legal protection offered throughout Europe and selecting the country with the most generous asylum policy as a destination State. They estimated two ordinary fixed-effects panel models. B. We are not hypothesising perfect competition but the process of regulatory competition in its dynamic sense. thereby shifting the supply curve to the right. It is important to note that this good is both rival and non-excludable. the number of asylum seekers in each country being the endogenous variable. pressure on law suppliers has clearly taken the form of fear of the arbitrage (Barbou des Places. which may be influenced by legal actions. Rotte.2.

or several. All Member States have imported the three techniques into their national legal order. 1995). 1995. and 1990s (Barbou des Places. Several factors provide evidence for this “beggar-thy-neighbour” attitude. National legislation aimed at a further reduction in asylum migration contains a potential for “devaluation races” in asylum laws among Member States using a ‘beggar-thy-neighbour’ effect in this field. B. A third convergent evolution in Member States’ legislation was their incorporation of two complementary concepts: “safe third country” (Achermann & Gattiker. 2000) as a result of their “containment strategy”. Member States have designed diversion policies. other Member States become the receptacle of the asylum seekers who change destination. Member States deliberately used national regulations as a strategic weapon in international competition in which gains in one country were at the expense of costs imposed on others. Rotte et al.354 S. Deffains / International Review of Law and Economics 23 (2004) 345–364 that there is considerable interdependence of asylum policies in the EU.1. The first took the form of sanctions imposed on carriers transporting improperly documented passengers (Cruz. there are striking examples of convergence within the content of the legislation. and that limit procedural rights and guarantees. 1996). A two-countries game in deterrence Let us consider States which have the competence and the ability to deter asylum seekers by increasing the volume of administrative procedures. des Places. 1999). measures that permit the limitation of the access to the status of refugee. first to capture the dilemma by a two-countries game in deterrence.. Noll. The competitive game in the field of asylum conforms with the model and we propose. 1995) and “manifestly unfounded application”. This devaluation race was in fact Europe-wide. that justify the curtailing of the examination procedure. We assume that .e. The second example concerns the creation of international or transit zones in ports and airports.B. The “devaluation race” as a consequence of regulatory competition Following the common pool resource model. 2003. the simultaneity of law amendments (Jeannin et al. This effect is empirically observable: when one State implements a measure that. that tends to reveal the interdependence among national legislation. one. and created a general “market of deflection” (Landgren. First. designated by a (i. Therefrom the chain amendments can be observed during the 1980s. 4. the race should produce a sub-optimal outcome.. then to provide empirical evidence of the negative result of competition among Member States’ asylum legislation. rules organising the access to legal protection and legal rights and subsidies conferred upon asylum seekers and refugees). 4. establishes carriers’ liability or enhances the safe third country technique. 1999. Second. for instance. and should lead to a “tragedy” in Hardin’s words. ECRE. norms regulating access to the national territory. are particularly significant. each Member State tried to develop mechanisms aimed at dissuading asylum seekers from selecting it as their future host country and thus at redirecting the flows of asylum seekers to their neighbours. invented in one country and then copied by the others. This is significant because all these measures clearly had the effect of redirecting asylum seekers towards the competitors and/or other States. Three sets of techniques. Unilaterally.

Restrictive and non-liberal asylum policies imply costs related to border controls and strict asylum application examination. This simple case shows that the Nash equilibrium level of the actions is higher than the Pareto efficient level. a2 ). the analogue to the problem of country 1 leads to a reaction function a2 = f2 (a1 ). 1. The consequence is that each country will opt for a too restrictive asylum policy and supra-national coordination may be justified.B. Suppose moreover that asylum seekers have to find refuge in one of the competing States: when a country chooses a. where the countries’ indifference curves through the Nash equilibrium are depicted (denoted by u1 and u2 .and second-order conditions of this maximisation problem are ∂V1 (a1 . a2 )/∂2 a1 < 0. an increase in a imposes a negative external cost on the other States. imagine a world divided into two countries. Note that a restrictive asylum policy is more costly than a liberal one. a can also be interpreted as the costs of legal procedures. Deffains / International Review of Law and Economics 23 (2004) 345–364 355 the greater the a the higher the bureaucratic costs to manage the system of reception and protection of refugees. B. a2 )/∂a1 = 0 and ∂2 V1 (a1 . This defines a reaction function for country 1: a1 = f1 (a2 ). j = k. the Nash equilibrium is not Pareto efficient: it entails legislation that is too restrictive. Suppose that the welfare (of citizens) of countries 1 and 2 can be represented by V1 (a1 . .S. where A denotes the set of possible legislations. A Nash N N N N N N equilibrium is then a pair (a1 . respectively. if a State prefers more a. 1 that an indifference curve for country 1 (2) is necessarily concave to the horizontal (vertical) axis. Taking into account the shape of the indifference curves. To demonstrate this phenomenon. a2 ) such that a1 = f1 (a2 ) and a2 = f2 (a1 ).7 Denote aj ∈ A as the level of legal procedures chosen by country j. This implies that the legal procedures chosen by the States are perfect substitutes. Thus. it is possible to observe that all the points in the hatched area to the southwest of N would improve the situations of both countries. we suppose that Vj (aj . the level of procedures chosen by country 2 has an impact on the welfare of country 1 (and vice versa). a2 ) and V2 (a1 . The first. In the context of asylum legislation. Moreover. This is depicted in Fig. we can observe in Fig. ak ) is strictly concave in aj and that (∂Vj /∂ak ) < 0. The problem of country 1 is maxa1 V1 (a1 . it does not take into account the fact that its policy imposes costs on other States. a2 ) lies at the intersection of the two reaction curves and is denoted by N. As we are interested in asylum seekers we focus on the administrative costs of considering the applications. this means that the Nash equilibrium level of legal procedures could be higher than the Pareto efficient one. Following Marceau (1997). In other words. a2 ). 1 in the (a1 . respectively. These last costs could be high but they concern only accepted refugees in a Member State. Hence. This can be seen in Fig. a2 ) space where the reaction curves are negatively sloped. For this reason. respectively). 7 The costs of legal procedures have to be distinguished from the costs of accommodation of refugees. The N N Nash equilibrium pair (a1 . For country 2. des Places. the countries spend resources on legal procedures in order to process asylum applications. it will be less attractive to asylum seekers but the costs per asylum seeker will be higher. 1 and 2. As a consequence. For the reasons presented above. the fact that procedures taking place in country k affect negatively the welfare of jurisdiction j can be rationalised by the following argument: a more restrictive legislation in k can “hurt” (in terms of direct or indirect security burden) j because refugees find it relatively more profitable to settle in j.

the actions developed by Member States have jeopardised the security of potential and actual asylum seekers (UNHCR. asylum seekers are bounced back and forth between countries until one finally accepts to host them. They have described a “new asylum regime” that reflects the emergence of a new paradigm. 4. 1. Lengthy procedures are also problematic because before their asylum application is examined and a status granted . from a regime implementing a selective but integrative policy of access and full status recognition paired with full social rights. but does not take into account the fact that this has a negative impact on the welfare of the other States. B. in the absence of global regulation (or collective action) earn less than they potentially could if resources were properly managed.B. 1999). Nash equilibrium. 1997). Evidence of a “race to the bottom” Legal scholars have dwelt on the constant and convergent restriction of legal rights conferred upon asylum seekers in the EU Member States. First. when choosing its level of procedures. trades off its own benefits (reduced number of refugees and increased indirect security) and costs (forgone resources.2. Finally. perhaps reduced direct security). Deffains / International Review of Law and Economics 23 (2004) 345–364 Fig. to one which maximises exclusion. There are costs to other countries that are not internalised. the countries.356 S. The argument behind the result of legislation which is too restrictive is that a State. according to the model. des Places. undermines status and rights and emphasises short-term stay for refugees (Joly. Through the use of the safe third country and manifestly unfounded application techniques. This description indicates the existence of a race to the bottom.

When transaction costs are . There is also widespread agreement that in many cases. civil servants in charge of asylum application examination). The systems developed to reduce costs have in fact generated new costs. 5. police. the 1967 New York Protocol and the European Convention on Human Rights (see Bouteiller-Paquet. des Places. A third. costs of implementation of the new law. We must underline the costs of modifying legislation (costs of legislative procedure. All Member States are bound by the provisions of the Geneva Convention. during the competitive process.S. sometimes without subsidies. etc. the settings of containment measures can be challenged before national courts and important case-law indicates that States face internal criticism. States have enacted measures which are not arguably in full conformity with international norms (Crépeau. States have frequently amended their legislation. these States have actually damaged their own interests” (UNHCR. one discovers that the result is sub-optimal. 1997). have used a very high quantity of human resources (customs. Last. indirect. Moreover. In addition. which constitute significant. Finally. In addition. when low-income countries close their borders to refugees. they tend to justify their actions by referring to the precedents set by the more affluent States. bureaucratic costs.B. Salt & Hogarth.). Deffains / International Review of Law and Economics 23 (2004) 345–364 357 or refused. in comparing States’ goal (to provide as little protection as possible) with the instruments used to achieve it (restrictive procedures). The “restrictive asylum practices introduced by many of the industrialised States have converted what was a relatively visible and quantifiable flow of asylum seekers into a covert movement of irregular migrants that is even more difficult for States to count and control” (UNHCR. Second. Although the array of restrictive measures may have slowed the inflow of asylum seekers. 2001). States are obliged to reinforce procedures and to allocate more human resources in order to fight against smuggling networks. As a result. sometimes every year. 1997). 1997). 1992). time spent by Members of Parliament and civil servants involved. it has certainly failed to stop it. keeping asylum seekers out has had the side effect of allowing for the development of networks of migrant smugglers (see Ghosh. the procedures set out by States have created side effects. 2000). “in attempting to limit the number of asylum seekers arriving and remaining on their territory. 1998. More precisely when the interaction among the users of a common pool resource is indefinitely repeated. European cooperation and efficiency at solving the race to the bottom problem The game is not static and institutional solutions generally emerge to solve the collective action problem. This situation creates difficulties for asylum seekers and for the host State. aspect of regulatory competition is the (non) compliance of certain legislation with international obligations. and abuses of their asylum systems. the outcome does not have to be a ‘tragedy’ but might be optimal as demonstrated by the folk theorem (Gibbons. These potential encroachments upon the spirit of the international provisions are costly for States’ international reputations because part of their international image and benefits gained from hosting refugees is to be able to tout themselves as protectors of human rights. by putting the emphasis on migration control and border protection. and problematic. The costs of bureaucracy have proven considerable and States. B. asylum seekers are left in a legal limbo. In order to redirect asylum seekers towards other countries.

they have adopted various measures. different forms of cooperation have emerged in the field of asylum legislation but the many obstacles that are met can explain the recently increasing role of action at the European level. Member States started negotiating and discussing burden sharing mechanisms (see Barbou des Places. the Dublin Convention laid down criteria that determined which contracting party would be held responsible for processing the asylum application. 2002. as a means to maintain and restore the States’ admission capacity in the long term (Hailbronner. information gathering or sanctioning devices. 2000). The goal of the SIC and Dublin Convention was to establish mechanisms which would replace the asylum seekers’ opportunity to choose his/her destination country with a legal. Some scholars stress the fact that Member States have used common norms to legitimise the shift towards restrictive asylum legislation. They reflect a common will to achieve two entangled goals: to limit the asylum shopping phenomenon that generates regulatory competition and to substitute burden sharing mechanisms (i. Vink (2001) concludes that governments have pursued restrictive policies that are perhaps not very different from those that they would have pursued in the absence of European cooperation. such self-emerging institutions imply community building. By acting at an international level. States have avoided certain national judicial constraints and have got around opposition from parliamentarians and NGO’s supporting migrants’ rights (Guiraudon. pushed by active and overburdened States (mainly Germany and Sweden) that try to establish procedures or mechanisms favouring an equitable distribution of asylum seekers. B. The Schengen Implementation Convention (SIC) and the 1990 Dublin Convention that determined the state responsible for examining the asylum applications lodged in one of the Member States of the European Community were the first moves towards limiting the competitive process. Since 1992. Although they could avoid accusation more easily by strategically profiting from the European playing field. 5. Harvey. Referring to the two-level game metaphor. 2000. The evaluation of these cooperation schemes is not easy. During the same period. instead. In practice. Then we evaluate the post-Amsterdam evolution and the progressive establishment of a centralised cooperation. 2000). particularly in the field of asylum. collective action) for unilateral strategic behaviours. Deffains / International Review of Law and Economics 23 (2004) 345–364 low. des Places. in terms of costs and benefits (mainly the costs induced by the .B. especially by shifting the blame onto Europe for the tightening of their asylum policies. To this aim. States aimed at suppressing asylum shopping and thus the fuel for competition among legal norms. Failed cooperation in the shadow of competition Numerous norms enacted in the early 1990s show evidence of a spontaneous and decentralised cooperation among the EU Member States. 1998) that can help States increase or maintain the protection granted to asylum seekers. but it can also be viewed. Burden sharing plans.e.1. 1998). It is clear that the burden-sharing objective can be understood as a strategy supported by over-burdened States in order to rid themselves of an excessively large number of protection seekers. By restricting a refugee’s ability to choose a destination State. Thus. We propose to first explain the development and result of the spontaneous cooperation of the early 1990s. were praised because they are an insurance mechanism (Suhrke. State-oriented determination. Noll.358 S.

the measures that were finally adopted have abandoned the system of allocation of people. they have incentives to organise burden sharing schemes at the European level because it flows from their belonging to the EU (and progressive loss of competence with regard to border controls) that they progressively lose possibilities to insulate themselves against inflows of asylum seekers entering their territory. des Places. Logically. Finally the Dublin system has not curtailed asylum shopping. 2002). To a certain extent. In fact. 1999). Member States have not transferred all competence to the EC. the results are not positive either. or rights granted to displaced persons. i. collective action can appear to be slightly positive. In contrast. B. and long periods of uncertainty. the Dublin mechanism does not provide Member States with any more protection against inequitable distribution. States never agreed on a common binding rule concerning uniform admission. They establish a very light and non-binding system. unclear criteria.S. the unevenness in the burden borne by Member States did not diminish during the 1990s. mandatory distribution of asylum seekers among Member States. it is useful to extend the range of cooperators so that fewer and fewer actors can potentially free ride. the Dublin system of responsibility allocation and transfer of asylum seekers was costly because it has increased human and technical resources requirements. Deffains / International Review of Law and Economics 23 (2004) 345–364 359 loss of a good reputation and tensions within constituencies). The Dublin Convention has not suppressed asylum shopping and faces fierce criticism: lengthy procedures for determining which State is responsible for processing the asylum claim. On the one hand. On the other hand. return. The intersection of collective action problems and problems of heterogeneous interests is difficult because both call for solution strategies that are partly contradictory. indirect costs of clandestinity have increased since asylum seekers prefer to disappear rather than be transferred from one country to another. After more than a decade of cooperative attempts. Countries that receive few asylum seekers—generally countries offering the lowest level of protection—might be dissuaded from participating in cooperation if they believe that unilateral action is less costly than mandatory burden sharing schemes. they retain the capacity to insulate themselves and/or to successfully compete. they may compete with their neighbours by maintaining different degrees of legal protection. Member States face a paradox. 2000). While the early 1990s proposals were ambitious and suggested systems of people sharing. Moreover. unilateral actions and competing strategies become more and more costly as they have an impact on other fields of European integration (Barbou des Places. In order to solve a problem of collective action. all appear to be problems endemic to the system. our analysis is that cooperation failed because the expected results were not met. there is a problem of collective action insofar as cooperation benefits are “endangered” by the remainder of competition opportunities. they are losing capacity to compete because each time a common norm is enacted another part of asylum law is pacified and removed from the ambit of interstate competition (Noll. At the same time.B. Concerning the burden sharing aim. States have disagreed about how to deal with the collective action problem.e. This result has several explanations. in order to solve problems of . First. Secondly. Yet. it is impossible to attest that a shift from costly and inefficient asylum policies to a coordinated and satisfactory collective action has occurred. Hailbronner (2000) rightly concludes that the Schengen and Dublin Conventions have established a special type of burden shifting rather than burden sharing (see Lavenex. In other words. Indeed. In the absence of a harmonisation process. From the point of view of costs.

Deffains / International Review of Law and Economics 23 (2004) 345–364 interest heterogeneousness. Security and Justice Area developments. 2000. Since 1999. two important norms have been enacted. They deal with the reception of the applicants for asylum in the Member States. In fact. by accepting harmonisation and laying down minimum standards. If all States prefer all other States to cooperate but each State individually prefers to defect.360 S. with the asylum procedures. Member States agree on a limitation to their competitive and strategic de-regulation capacities. It aims at establishing centralised burden sharing. Since 2000. demonstrates the Member States’ intention to establish real and sustainable cooperation. 1978). On the first point. the best combination is achieved by a viable balance between inclusiveness and exclusiveness. In addition. an evolution is already perceptible. One of the lessons taught by the 1990s cooperative schemes is that cooperation can be efficient only if it tries simultaneously to tackle the causes of regulatory competition and to organise centralised burden sharing. The Treaty of Amsterdam 1997. The European cooperation differs from the 1990s system for a second reason. Although the process of setting the European asylum policy is still very young and in progress. Cooperation is relatively difficult to realise if the minimum sized coalition is fairly large and if cooperation makes non-cooperation more attractive to outsiders (Schelling. States have favoured centralised action to organise cooperation. 5. des Places.B. . By approximating their legislation and recognising equivalent rights to asylum seekers. the Council has received competence to enact measures promoting a balance of efforts between Member States in receiving refugees and displaced persons.2. B. non-cooperation is the dominant strategy and the collective equilibrium outcome conforms to the prediction of the regulatory competition game. with the qualification and status of refugees and with temporary protection granted to displaced persons. OJ 6/10/2000. These norms all purport to approximate the national legislation with the explicit aim to suppress or reduce the asylum shopping strategy. The European institutions have enacted or proposed important norms (directives) that all lay down minimum standards. The first one is the creation of a European Refugee Fund in September 20008 and the second if the Directive of 20 July 2001 on minimum standards for giving temporary protection in the event of mass influx of displaced 8 Decision 2000/56 of September 18. Heterogeneousness can be contained through the exclusion of dissenters. Harmonisation corresponds thus to a first step of cooperation. 2000). we interpret the current legal developments as clues of a new tendency. that Noll calls “norm sharing” (Noll. States have transferred important competence to the European Union level on several matters concerning asylum and refugee law. Towards centralised action in the post-Amsterdam era In the Treaty of Amsterdam. as spontaneous and decentralised cooperation proved to be inefficient. they pacify the harmonised areas from the ambit of regulatory competition. Unsurprisingly. the European institutions have a very important legislative activity and they enact numerous measures in the field of asylum. it is useful to limit the range of cooperators. In the frame of the Freedom. whereby Member States try to set out a soft but institutionalised and centralised cooperation aiming at replacing the previous regulatory competition.

S. as it proposes and promotes the development of new European legal instruments (harmonisation directives in particular). We can thus observe that. In addition. In particular. the subsidies will be allocated to the State bearing the major costs of hosting protection seekers. A third difference with the 1990s cooperation is the role of European institutions. In particular. Deffains / International Review of Law and Economics 23 (2004) 345–364 361 persons and on minimum measures promoting a balance of efforts between Members States in receiving such persons. 10 9 .B. evaluation and peer review. Harmonisation is limited to the adoption of minimum standards leaving space for competition among States. identifying and promoting the adoption at the European level of what it considers to be the best practices with regards to providing protection to asylum seekers and refugees. The Commission will be able to make extensive use of the “shame” leverage in order to dissuade States from implementing externalising measures that shift the asylum burden onto the other Member States. which is another flaw in the system. there is no time limit for the adoption of these measures. In addition. integration of the persons in the host society and repatriation. States will have to agree on common objectives and guidelines. it is an attempt to set out a people sharing mechanism under the Council’s supervision. the Commission plays a central role. we must note the enactment by the Commission of a communication that promotes the use of the “Open Method of Coordination” (OMC) in the field of asylum. B. the Fund represents a substantive change insofar as States have agreed to institutional financial solidarity. despite the limitations. for negative regulatory competition. the current legal developments demonstrate the States’ will to cooperate. The Commission will play an important role in the OMC mechanism as it will be able to stimulate open and public debate on the national asylum policies. OJ 7/8/2001. establish quantitative and qualitative indicators and benchmarks. both for people sharing and for fiscal burden sharing. Directive 2001/55. If the OMC is put in practice. a European asylum policy is taking shape. Both norms represent a significant attempt to deal collectively and comprehensively with the asylum dilemma by acting on the causes of regulatory competition (minimum standards). Yet. that may substitute organised. institutionalised and centralised cooperation. select and promote best practices and oblige States to justify their individual actions. Clearly. and by promoting complementary measures of centralised burden sharing. Regulatory competition is unlikely to disappear but it might be progressively framed by the action of the European institutions and could be absorbed by a political competition for best norms inside the European political debate.10 This new governance method is interesting insofar as it may complement the legislative works. Despite its limited budget.9 The European Refugee Fund Decision favours a fiscal burden sharing system by creating mechanisms of financial compensation to burdened States. des Places. the current setting of a European asylum policy has important limitations. Then European guidelines will have to be translated into national policies and States will have to organise periodic monitoring. Communication from the Commission to the Council and the European Parliament on the common asylum policy. The Fund will finance actions relating to conditions for reception. As for the Temporary Protection Directive. introducing an open coordination method. while the Treaty calls for the adoption of burden sharing instruments. COM (2001) 710 final. progressively. Progressively. it plays a significant role in comparing national legal asylum systems.

des Places.362 S. Then. it may be interesting to focus on the nature of the good. the nature of the good changed and States started competing for a common pool resource that was: “to provide as little protection as possible”.e. We theoretically explained and gave empirical evidence of the emergence of a competitive regulatory game that took the form of a spiral of restrictions in the EU Member States’ asylum legislation. can we expect that the current establishment of the European asylum policy will lead to an efficient result and is it likely to solve the destructive competition problem? We showed that the spontaneous cooperation of the 1990s failed to limit negative regulatory competition. as the costs of asylum seekers’ reception dramatically increased. a normative proposal argues instead in favour of changing the nature of the game. such a change is difficult to operate.B. Conclusion The law and economics perspective adopted in this paper permits an understanding of the very intense legislative activity in the field of asylum in Europe from the mid-1980s onwards. and the generalised shift from generous national asylum policies to restrictive and deterrent asylum legislation. The risk of a race to the bottom is generally seen as a reason which may justify centralised decision making. but we deem that reflection is worthwhile. B. The issue now at stake is the organisation of cooperation among the EU Member States. competition that does not fall below a certain level. European institutions have set out various mechanisms that aim to limit and frame competition. the provision of protection was both spontaneous and heterogeneous in Europe. The idea would be to identify conditions that would allow for regulatory competition to produce a positive result. After having considered the paper. including measures of harmonisation. That is why the EU Member States have chosen a first option to solve the problem: centralised cooperation. we have focused on the nature of the good and departed from traditional analysis that characterises the provision of protection to asylum seekers and refugees as an international public good. They transferred important competence to the European institutions in the Amsterdam treaty and since that time. it seems interesting to take into consideration Reich’s view (1992) that a competition for better rules is possible.e. As States expected private i. It also explains the difficulties met by the EU Member States in setting out efficient cooperative schemes in the 1990s. While current centralised cooperation organised by States aims to control the result of the game. 1993) show that competition does not necessarily lead to a race to the bottom and can instead produce a climb to the top. Pro-competition scholars such as Romano (1985. However. another option to deal with the race to the bottom problem merits further exploration. To analyse these questions. We build upon the American debate on Delaware and regulatory competition in the field of corporate law. Deffains / International Review of Law and Economics 23 (2004) 345–364 6. In the field of asylum. The paper finally raises the issue of the efficiency of the European asylum policy as it is currently set out. nation specific benefits (both security and altruistic benefits). 1987. So. As for the EU. Positive analysis confirmed that the result is a race to the bottom. We first showed that the provision of protection after the Second World War presented the characteristics of a joint product. that would evaluate how the perception of the good by the actors could be modified in order to change the game. . by the mid-1980s. i.

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