UCLA Undergraduate Law Journal. vol. 3, 2002.
Shange H.S. Petrini
Interests of the
developed world affect the people of the developing nations, both in their
countries and out of it. During the cold
war many lives were shaped by the struggles for power among ideologies while
the corrupt dictatorships that were sustained by first world aid[1]
extorted the resources of their country and the lives of the people for their
personal gain. Most recently these
people have had to sustain intolerable conditions created by the imposition of
the ‘business ventures’ of multinational corporations[2]
and the uprooting structural adjustment programs.[3] But now as these people have tried to seek
refuge or to escape to a better life elsewhere (in the
Many of the
There are great
disputes on figures of illegitimate immigration to
Because of the high degree of clandestine migration to
Before
colonialism there were many migration patterns in
The propensity to
migrate increases as migrant flows persist over time and as the society of the
sending country becomes more accustomed to emigration.[18] This can be seen in
As
It is noteworthy
that the migrant streams within
There are generally two schools as to whether any international law requires a state to admit aliens into its territory: the sovereignty school, and the interdependence school. The sovereignty school basically states that there is no requirement or duty to allow migrants to enter the country while the interdependence school posits that states are interconnected and cannot isolate themselves from each other and therefore there are some duties that would require the state to admit foreigners.[31]
At the turn of the century most scholars of international law argues against restrictive policies also for reasons of security and stability. These same arguments are used contemporarily and are known as the interdependence school. For example, The Institute of International Law stated that “free entrance of aliens into the territory of a civilized State should not be curtailed in a general and permanent manner”[32] and further[33] that “protection of the national labour force does not, by itself, constitute a justification for non-admission of foreigners.” Anzilotti somewhat agreed when he stated that “aujourd’hui, sauf les cas très nombreux où des traités (traits d’établissement, etc.) sont intervenus, il existe pour les états une obligation juridique d’admettre les étrangers sur leur territoire” but he differs in his mentioning of an obligation of the state to admit a traveller. Such language is used by Sibet in his “Traite de droit International Public” of 1951. He there writes that every state has the duty to admit other state’s citizens because of the “present needs of international life, commerce, trade and exigencies of individual freedom of movement.”[34] The reception and expulsion of aliens are matters of domestic jurisdiction for which states must be considered competent. In reality admission is regulated by the national interest of the admitting state.[35] Gentilis and deVittoria both defended the liberty of international travel. Other theorists[36] such as Bruce Ackerman state that applications for citizenship and entry into the country must be considered by the host state. Ackerman says that “the Liberal state is not a private club, but all who are honest have the right to demand citizenship.” According to him the state can only restrict the entry of migrants in the interest of preventing a fascist backlash from the residents.[37] Further, as stated by Plender
as recently as at the end of the nineteenth century there continued to
be support for the view that the power to control the ingress and egress of
aliens was circumscribed by international law.
At the meetings of the
Court decisions and policy statements that have advocated stricter immigration laws have their theoretical roots in the writing of Grotius and deVattel of the sovereignty school. DeVattel gives basic rights of the state to restrict entrance for its own interest, as he goes into detail in his work of the duty of the state to protect itself and to further its own interest, which are “to procure for its citizens the necessities, the comforts, and the pleasures of life, and in general their happiness… and to defend the whole body against all external violence.”[39] Grotius in his work[40] put more weight on sovereignty and stated that “it followed a fortiori that a sovereign might exclude foreigners from his kingdom in defense of the personal or proprietary rights of his people.”[41] It was stated by Q.C. Montague Crackenthorpe in 1892 (UK) that “it can hardly be disputed that every civilized State is entitled to make what regulations it pleases both as to emigration from, and immigration into its territory.”[42] Heilborn agreed with Crackenthorp and “drew a close analogy between the proprietary rights of individuals and the territorial sovereignty of States.”[43] He wrote that “the State might prevent persons who did not belong to it from ‘trespassing’ on its property,” yet he did admit that international law limit in the way could treat the alien after arrived. These opinions of restriction for self preservation have been reinforced contemporarily by such declaration as those by some Latin American theorists who said that the state has the power to exclude or expel if for the defense of the state, social tranquility, individual security and public order.[44]
Professor Chhangani (Legal Status of Aliens in Nigeria (1981) JILI, 271) refutes that Sibet is not correct because of the conflicts of this position with sovereignty. He states that “it de-emphasizes the sovereign right of a State to exclude aliens at will, which is incident of territorial sovereignty.”[45] Also, the state has the right to protect itself or the immigrant from himself and this theory ignores the concept of national interest or the welfare of the admitting state. Grotius generally supported Gentilis and deVittoria in their pro-migration statements, but also brought up the issue of exclusion for purposes of self-preservation.[46]
Contemporarily laws and statements have
become bold in asserting this right of the state (a development to be outlined
in the next section), as can be evidenced in Nishimura Ekiu v.
it is an accepted maxim of international law, that every sovereign
nation has the power, as inherent in sovereignty, and essential to its
self-preservation, to forbid the entrance of foreigners within its domains, or
to admit them only in such cases and upon such conditions as it may see fit to
prescribe.[47]
A parable statement can also be had
in In Re Adam in the
Much of the
justification for the right to restrict migration are to preserve the states
duty to protect its own interests. Many
such clauses can even be found in some of the examples cited above which
support the rights of migrants to enter a state, for example the proposition of
the
This debate
between the interdependence and sovereignty school is unsettled
theoretically. States have preferred to
accept the sovereignty ideology as it serves their interests, and the reasoning
of this school has become de facto and de jure law. It is important to understand the
context of the assumption of these policies as being often rooted in paranoia
caused by perceived outside threats and not assume that such ideas are obvious
or have had a long history. Richard Plender in his work “International
Migration Law” posits that the arguments for restrictive migration policies
talked about in so many of the international law textbooks “does not have an
ancient pedigree.”[52] Although we should be careful in falling prey
to a reverse fallacy of tradition or ancient date, it is useful to outline this
argument and time line so that we can understand the roots of extant policies. Francesco deVittoria stated that “it was
permissible from the beginning of the world, when everything was in common, for
anyone to set forth and travel wheresoever he would.”[53] Many other of the idealist school also
supported the idea of a duty of a state to allow entry to travelers. As states started to impose more restrictive
policies at the end of the 19th century many legal theorists,
scholars and professionals met world wide to oppose this, but their voice was
unheeded.[54] Some of these restrictive policies include
the restrictions in the United States of Chinese in-migration, which has just
been discussed supra.
There is
evidence that freedom of migration was a norm perceived as inherent in
international law and human rights, and that it changed from that status
according to special policies that were intended to be temporary and to address
security concerns of the time. A good
case study of this is provided by Plender in his analysis of developments of
these policies in the
About the time
of the French revolution and the conquests of Napoleon, there arose a sort of
Francophobia in the
Many other
restrictions were passed during times of conflict and were wartime acts. These
acts were intended to be temporary, but restrictive migration policies are not
downward flexible. The 1792 Alien Bill[60]
was allowed to relax for a few years after, but then it was re-enacted in 1815,
1826, 1818, and the crown did not surrender deportation power to the houses
until 1826. Finally in 1848 Aliens
Removal Act was passed. This established
that the Home Secretary or Lord Lieutenant may deport aliens against whom any written
allegations had been made. The Act of
1905 loosened up the system a bit by establishing a system of alien
registration as opposed to restriction yet it still sustained the other
statutes.[61] In 1914 this was renewed, but the bill was a
little more restrictive than the one in 1905, and restrictions continued
throughout the World Wars. Immigrants
were needed for labor in the post-war reconstruction period and many were
actively recruited, but then in 1961 the first statutory control of immigration
in the
States have great interests in demonstrating competence of maintaining the security of the nation from perceived threats, but these threats that supposedly migrants cause which are used to justify the restrictions of rights are perceived and are not empirically established. Yet they dominate policy decisions that have a great effect on the respect for the human rights of the migrant. Generally it has been said that migrants have ill effects on the economies of the recipient nations, but sociological and economic studies of Portes (op. cit.) et alit show that this is not the case. In fact many times when migrants are restricted to a great degree, the economies of the nation suffers because they lose a large body of their cheap labor.[63] Further economic analysis has shown that instead of migrants having negative effects on the sectors where the natives are employed (hence the perception that “they are stealing our jobs”), high levels of immigration only have negative effects on the sectors of employment and the geographic regions where other immigrants are employed and live.[64] Migrants are marginalized to these sectors and communities because the native populations do not what them. More and more migrants are then competing for the same jobs and depressing the demand for labor and wages in those sectors and positions. This only has negative effects for residents of the country who are migrants.
Notwithstanding
the social realities that have been indicated time and again by these studies,
states continue to frame their rhetoric according to popular lore and
assumptions of the effects of migrant populations.
Since
At the beginning of the 1990’s
Parties use immigration as a way to call the other a racist, diverting
their popular appeal. For example, the
left accused Lega Nord of being dangerous racists when they suggested that all
immigrants be fingerprinted, but when one of the left suggested it, it was
accepted with no such protests. The
persistently high levels of illegal immigration is also a way for the
opposition to prove that the government is ineffective. Immigration is not as important of a policy
issue for discussion by parties as it is a point of debate for political
purposes. But this tool is changing
somewhat as politics in
Restrictive immigration policies in
In the past,
The issue of migration has been used for political bantering between the two parties and not as an issue of serious policy debate. It has long been a means for bringing racist and nationalistic perspectives into English politics. Around the turn of the century anti-immigrant opinions were openly racist and anti-Semitic on both sides of the political spectrum, but these views were not supported by the public generally and were not expressed in their campaign rhetoric.[87] During an election in 1906, anti-alien rhetoric was experimented with by the left that eventually lead to rioting that destroyed a great deal of Chinese property.[88] After WWII because of the publication of the Nazi atrocities, “any attempt to limit of prohibit [aliens] entry was open to the charge of being racist.”[89] Contemporarily, Blair has been accused by conservatives of playing the “immigration card” for elections.[90] Tony Blair in his turn has accused the Conservatives of being racist because of their restrictive proposals for immigration policy and because of Hague’s raising of opposition to the government’s asylum laws.[91]
One can see how different the intentions of the party members are during
elections and while in office. Labour
members often run on a restrictive platform that is carefully presented so as
not to sound racist and yet appeals to the restrictive sentiments of the
public, and then will support liberalizing policies when in office, as Straw
has done when he spoke of wanting to stifle illegal immigration and better
coordinate the system.[92] During the election he told of when he worked
on asylum cases in his
Like
William Hague of the Conservative party gave an address a few years ago citing Powell’s Rivers of Blood speech, but afterward when complaints came in he gave a speech to the contrary, saying that racism has no place in the Conservative party and withdrawing all his previous statements.[96] Another conservative, John Townsend, more recently made similarly racist comments, cited Powell and then stated that, “illegal immigrants have got a new ploy. They call themselves asylum seekers. In my view the only way to deal with the problem is to send them back quickly. Many come from violent societies and inevitably crime is already beginning to rise in the areas where they are.”[97] He later withdrew all his statements just as Hague had been compelled to do. The party has stifled these comments while also trying to moderate policy decisions so as to not incite the public against them by seeming racist. The conservatives cry for “a safe haven, not a soft touch, on asylum.”[98] This appeals to the Britons’ memories and ideals of providing humanitarian refuge while also restricting the “immigrant problem.”
After the anti-immigration rhetorical experiments during the elections at the turn of the century, Labour declared itself as the defender of the ideal of brotherhood and of pro-immigration[99]. While Labour controlled the Home Office, it reported that immigrants help the economy by filling labor shortages, decreasing inflation and helping to boost growth. There are labor shortages that government would like to relieve, especially in public sector, therefore, government wants to encourage managed migration.[100] Yet the Labour party has tried to show evidence of its diligence in restricting migration to justify its service in government. For example, while the party declares that asylum applications rose 9% last year, it points out that this is still not as sharp of a rise as some other European countries that experienced a 15 – 65% rise.[101] It has also produced statistics that show that 89% of applications were denied and that the amount of removals has doubled.[102] The party tries to show that it is open to immigration, while appeasing the public by showing its success in regulating immigration.
One of the reasons for restrictive European policies is
because of the perceived threats of migration that exist (not always based on
fact): migration is perceived as a “threat to a country’s territorial
integrity, as a treat to economic prosperity and/or the preservation of core national
values, and as a threat to a well functioning international order.”[105] Vernez has shown that the higher the sense of
national identity and core values in the migrant receiving or host nation, the
more restrictive the policies of that nation tend to be.[106] This could apply only somewhat to the
There are an
incredible number of laws and policies that can be very difficult for the
migrant to discover and it is difficult for the migrant to know all of his or
her rights. Generally in the texts of international instruments there has been less on the protection of migrant workers, and
more on their restriction. One of
the more positive aspects has been the prohibition
of racial discrimination, but in the empirical analysis there has been little
progress made in that area.[107] Equality
of treatment only applies to a “few defined respects” [108]
and the migrant is often precluded from the relief of many human rights
instruments because their ambiguous status as non-citizen compromises their de
jure definition as being ‘human.’ Still,
one of the biggest progresses for migrant rights has been the Draft
United Nations Migrant Workers Convention (MWC), which resulted from UN
investigations of illegal migration from developing countries to
Some of the general issues that arise in instruments that address migrant issues are those of employment, education, housing and health, cultural preservation and the right to life, remittances, visas and migration regulations, the family, fair and equal treatment, political participation and representation, the protection of the interests of the state and legal rights of judicial review. Many of these are a re-emphasis of basic humanitarian documents, trying to push states into proactive measures to assist migrants, while others are very easy to understand and can be assumed, such as the restriction of the right of the non-citizen migrant to participate in elections or run for office.
The Italian and British governments
have made attempts of varying degrees to implement some of these
standards. While the Italian government
has incorporated these into its laws and policies of migrants yet has not
empowered them within the country, the
The
Many Europeans see racism as being
an issue of the
The workings of administrative detentions under the Immigration Act [of 1971] [show] the dangers of injustice and abuse to be found in an executive discretion that can, and does, operate outside and even in contradiction to, the recommendations of the courts. It is a discretion almost totally unfettered by independent scrutiny and which lies beyond the safeguards of liberty found the Bail Act.[112]
According to the National Council for Civil Liberties in 1994 650+ people seeking asylum[113] were held in prisons in intolerable conditions where families were kept separate from even communicating.[114] They had adversarial relations with the Immigration Officers who interpret the law arbitrarily (according to their own understandings of it and not the courts) and denied the applicants the possibility of appeal.[115] Asylum applicants are still treated this way. Some studies have also stated that this decision-making by the Immigration Officers denies the applicants of a trial to which they are entitled by international law.[116]
Another
investigation by the United Kingdom Immigration Advisory Service provided
evidence to the Parlimentary Sub-committee on Race Relations and Immigration
that the IND provided totally inadequate appeal of rights, that they didn’t
disclose the reasons for rejection where no rights of appeal existed, there
were extreme (and deliberate?) delays in application processing and that
migrants that enter the country seeking asylum are treated as criminals.[117] While some state that “it is plain that there
is no general obligation in international law to afford a judicial review of
the merits of a decision to expel an alien”[118]
measures in the UK and Italy have been passed and signed that seek to secure
for the migrant rights to legal counsel,[119]
adequate time for preparation of defense,[120]
hearing of their case in a timely manner,[121]
dignity in proceedings and in detention,[122]
the right to have contact with diplomatic authorities,[123]
etc. There have also been clauses that
seek to protect the migrant from profiling by the police, a huge issue in
It has been made
clear in international instruments and domestic law in the
According to the research and report of the scholar Penny Green[128] a number of asylum applicants in detention suffered from a widespread hunger strike that protested abuse they were subjected to by the security guards. These security guards were poorly trained in relating with minority migrants and had had no background checks on being hired. They are unfamiliar with refugees’ status as being non-criminal and therefore treat the asylum detainees deplorably. Many of the detainees were subjected to racist comments and behavior. The detainees participated in this strike because there was no other way to submit their complaints. This is unfortunately a situation that persists for many asylum applicants.[129]
In trying to process their applications the migrants have to go through great lengths and they are considered criminals at the outset. Students who seek to apply to stay because of dangerous conditions at home are treated as lawbreakers.[130] The Home Office and Immigration Officers is prejudiced against any facts presented, even those which are supported by very compelling evidence or evidence that proves them beyond a shadow of a doubt; it will go to great lengths to research for any possible inconsistencies in the applicant’s story, and then will hold tenaciously to justify further suspicion and detention and ignore all reason that disproves their assertions.[131] The migrants are treated with prejudicial disdain and their applications are arbitrarily denied as a result.
The Refugee
Council produced a critical analysis of the Home Office’s favorable report on
conditions in
The authorities in
Migrants are often the victims of racism not only because of the exploitation of their employers, but also because of public perception that migrants are criminals.[139] As a result migrants tend not to report incidents of racism because of their fear of how they will be treated by prejudiced institutions as a result[140] (the police, the community, the judges, employers, friends, etc).
An example of the
social conditions that migrants have to endure can be had in the CESTIM reports
on the “Occurrences of Racism in
Notwithstanding
the amnesty programs for illegal immigrants granting them documentation and
permission to stay[147],
it is estimated that 30% of migrant workers in
There are also
great levels of racism and discrimination in the housing sectors, as migrants
are restricted to living in areas that are impoverished and intolerable.[149] As a result of poor housing conditions, many
migrants suffer health problems, which has a great effect on the family and
youth. This is in violation of
international instruments signed by Italy which give the migrants the rights to
choose their own area of residence[150]
as well as not to be concentrated in one area that could attract poverty and an
undue pressure on the surrounding native communities to support their needs[151]
(through social programs via taxes, etc).
Indeed there are more homeless immigrants in
It is interesting
to note that in
There were no multilateral instruments regarding migration before those that were initiated by the ILO and the UN in the mid-1980’s. Before then there were some bilateral instruments, mostly among European and between European and South American countries, but these were before the World Wars and were not renewed. There was also the Statute of the Council of Europe in May 1949 which had a humanistic intent to repair some of the damages in response to Nazi atrocities and also in reaction to the communist bloc[156] but this dealt with migrants only indirectly.
Policies and
agreements between
It is difficult
for nations with very different backgrounds to conclude agreements that can be
consistent and reliable. In
The issue of
international law being established by those nations with the political and
economic power to the compromising of the rights of the weaker nations is
demonstrated in this issue of migration policy.
One of the demonstrations of this are the contrary policies of the
‘developed nations’ imposing through conditionality liberalized trade policies
in developing nations[160]
vis-à-vis restrictive immigration policies.[161] While the borders of the ‘developing’ nations
grow looser, those of the ‘developed’ nations grow tighter. This is of course according to the interests
of those with the power. The dependency
and neo-imperialism schools argue that this is in violation of the sovereignty
of those nations. In this case the
Hobbsian ideology dominates international norms (under the contradictory shroud
of ‘liberalism’). This issue is
interesting when one keeps in mind that the migration flows that are being
restricted are those that were established by the European nations.
Developing countries in general have only participated
in the drafting international standards since the 1960’s, but
Although there has been some exposure to western human rights through the colonial legacies and the transference of western legal and administrative structures, there have still been difficulties in the complete implementation of these structures, and many African nations are struggling to identify a system that might take into account their own values and culture. The discussion of rights of nations have excluded measures to prevent interventions of the west in developing countries, the rights to economic development and self determination, and some say that western conceptualizations of international law have promoted intervention through the sustenance of “liberal” ideologies. Because developing and non-western nations have been excluded from international decision-making for so long, many values and interests (such as those Islamic) are excluded altogether.[164] Some of the basic concepts of individualism, citizenship, obligations, and development differ greatly between the African and European nations. One of the obvious and immediate examples of this is the confrontation of western individualism with African communalism. The rights of the group are compromised for the rights of the individual. African nations are struggling in a post-colonial world to regain and assert their unique identity and cultural values, and the recognition of these values is overlooked in inducing these nations to sign instruments drafted by dominant western values. The way that African nations behave with international instruments such as the ECOWAS is different than the norms of the European nations in the EU. There should be efforts made to form relations and instruments that account for and respect these differences.
An example of the communal nature of African society[165]
and the legitimacy of their political structures is the
The great
dominance of western values and conceptualizations of rights and citizenship
has often caused international instruments to be ignored in African countries
as they have proved to be of little relevance to their societies.[169] It has been difficult for nations to
relate to West African countries also because of their unique position socially
and economically which sometimes limits their abilities to participate in
international politics the way that other nations do. Hence, it has also been observed that
“African countries are rather insensitive or unsusceptible to the influence of
the ILO norms” and that “weakness in legislative and administrative matters
continue to impede the majority of African states from implementing the norms.”[170] Although there has been a dominance of
western institutions on the concluding of international instruments, there is
now also evidence of the influence of non-western ideas on western thinking
(e.g. Declaration on the Right to Development).
And in fact Leary states, “It is no longer possible to discern with ease
a common Western approach to human rights which distinguishes that approach
from those of other cultures.”[171] This
is progress, but too slow to empower the dramatic change needed to include
values from this society to be respected in treaty drafting. This continued neglect contributes to the
unequal and unilateral nature of treaties attempted with West African nations.
Bilateral
Agreements
There
has been a surprising lack of international agreements between
Notwithstanding the large amount of international
agreements which try to proliferate the agreements for these purposes,[172]
there are very few if any agreements that have been made with African countries
and Northern countries with the interest of protecting migrant rights (defining
African as is done normally, to the exclusion of
Bilateral treaties
for migration “now constitute a major source of international legal norms in
the protections of the human rights of aliens” and it has also been said by
others that migration is legally effected the most via bilateral international
agreements.[175] But on the list of foreign policy priorities
for the EU,
One of the reasons for the historical paucity of agreements between these
nations is because of the relations that
In the major EU
instruments, such as the Schengen, but more specifically Tempere and
The main multilateral tie that exists between these
nations and
The Lomé convention is the “world’s largest financial and political framework for North-South cooperation.”[183] Lomé wanted to increase “matters of common interest, including human rights, democracy, the rule of law and good governance” and it also established non-reciprocal trade preferences with these nations.[184] This has been a medium for multilateral aid and, as has been the trend of aid instruments in the 1980’s and 1990’s, has been subject to measures that have imposed conditionality on the recipient nations.
Conditionality
has come into use since the structural adjustment programs of the World Bank
and USAID came into effect. It basically
means that aid will be withheld to recipient nations until certain criteria
decided unilaterally by the donor are fulfilled.[185] These criteria have been in areas such as
greater ‘democracy,’ liberalized economic systems, etc.[186] Although Lomé was instituted to provide
economic assistance to the ACP nations, such dialogue “has taken a back seat to
greater conditionality.”[187] Lomé III (1984) was the first EEC cooperation
treaty with a human rights clause opening the door for discussions of these
clauses being satisfied and in 1995 Lomé IV became the first contractual
agreement with a structural adjustment clause.[188] The Art 5 of Lomé IV introduced human rights
and democracy clauses at the request of European nations. These had their root in the Maastricht
Treaty 130U of chapter XVII on development policy.[189]
The EU imposed
conditionality on the treaties and the ACP’s met to protest and produced the
Libreville Declaration in 1997. There
they declared that they support democracy, etc but not conditionality. There was also talk of liberalizing the trade
protections and ACP’s asked for 10 year adjustment period until free trade
would be imposed. They also protested a non-execution clause that says that the
whole Lomé treaty would not be valid if the ACP nation is (unilaterally) judged
to go against principles of good governance (conditionality).[190]
With the revised Lomé IV (IVbis) the “respect for human rights, democratic principles and the rule of law become essential elements of the Convention.”[191] The emphasis of “essential element” means that “any violation could lead to partial or total suspension of development aid by the European Union after prior consultation of other ACP nations and the abusing party.”[192] But after much protest by the ACP’s and some compromises, good governance is now a fundamental element, not an essential one[193] removing the severity of its perceived violation. And although protested, it was decided that the disbursements of aid funds to the ACP would be in installments throughout the year, which basically has meant that “they would be awarded subject to the country achieving the expected/agreed development policy performance,”[194] giving the donor country more power to monitor compliance and distribute according to continual compliance to these conditionalities.
One of the key parts of the conditionality clauses in the last Lomé document was in regards to illegal migration. The measure calls for more rights of migrants, but also contains clauses that seek to further control illegal migrant flows. Lomé Article 13 addresses fair treatment of ACP legal immigrants and even conjectures for the training and other facilitation efforts for the employment of immigrants.[195] It would further “ensure through the legal or administrative measures which they have or will have adopted, that migrant workers, students and other foreign nationals legally within their territory are not subjected to discrimination on the basis of racial, religious, cultural or social difference, notably in respect of housing, education, health care, other social services and employment.”[196] But the illegal immigrant clauses were very controversial. These clauses stated that the ACP’s must accept illegal immigrants back, which is normal, but it also contained a clause that they would accept illegals from any other ACP (stateless or third country nationals). It also stated that this instrument would impose the negotiation of bilateral agreements in these regards at the request of any party (which would obviously be at the request of the EC nations).[197]
The biggest
controversy about this clause was that it was introduced at the last minute
during the drafting and negotiations of the convention so that it would receive
only limited debate and opposition.[198] There is no evidence that suggests but that
they had indeed been well aware that this would come up during the convention
and its introduction was intentionally delayed.[199] The EU states claimed to not be informed of
the measures that had been taken that would necessitate the proposal of the
migration clauses in Lomé, but their participation in
There is also
controversy because one of the instruments that necessitated Art 13’s
introduction (the article that treats illegal migration) was incorporated
contrary to established democratic law.
Title IV Art 63(3)(b) of the
In the end “the ACP were willing to accept readmission of their own citizens, but they rejected the readmission of non-nationals or stateless persons who transit their territory. They held the view that the proposed clause had no basis in international law”[205] and from analysis of international texts and norms, it appears that they were correct. Eventually Art 13 was signed with changes made allowing illegal migrants to be sent back with the administrative support necessary for their return. There is still language of an obligation for the acceptance of their return and the ACP states are to provide the illegal migrants with the necessary documents for this return. Further, they will still accept third party nationals or stateless who arrived in the EU from that country (in transit) and were refused asylum or just expelled for any reason.[206]
In order to assist the developing ACP countries by decreasing the degree of their unfavorable terms of trade, the Lomé conventions contained measures to allow the ACP to trade liberally with the EC while protecting their own markets from EC exports. But despite the opening up of the EU markets to ACPs, ACPs have lost considerable market shares. This could be partially because preferential treatment was only given to certain products in exclusion of more than 60% of ACP exports.[207] These exclusive measures were emplaced by the EU for domestic political reasons. In the EU, corporatism is very strong many nations, and this causes the nations of the EU to support measures that protect primary and secondary sectors, many of which compete with similar industries in the ACP. Although the ineffectiveness of Lomé has been blamed on the poor economic policies of ACPs, these structural adjustment policies have mitigated the benefits intended by the Lomé trade agreements.[208] There policies are not a result of those countries’ decisions, but a result of structural adjustment policies imposed by the western institutions of the IMF/WB. Another interesting issue with liberalized trade in this context is that with the strengthening of trade ties between APC and EU, there are fewer ties among APC and therefore less migration between APC’s,[209] which could relieve migration to the EU.[210]
Conclusion
Amid news of terrorist threats and other international
occurances the realities of the thousands of migrants in
This paper has basically outlined some of the issues
that are prelevant in the problem of migration between these two regions. It is not prima fascia apparent that the EU
has the right to restrict migration if we view the issue in a historical
context. Indeed, many of the reasons for
the restrictive policies of these nations are more politically and socially
determined than legally and logically.
It is often taken for granted that States have the right to restrict
immigrants as they wish and it is assumed that this right has been justly
established by debate and fair litigation with the interests of the all parties
being considered, but this is not the case.
This norm is a modern one. The
right of restriction has become an ideology that drives policy just as liberal
capitalists’ assertions of the supremacy of the market is ideological claim
that drives current world policy. The
philosophical/rhetorical issues of migration restrictions and compromising
migrant rights that have become unquestioned today are still unresolved. Even if these arguments of solidarity and
safety were unchallenged these are not the reasons that drive restrictive
policies anyways, rather these policies are formed according to international
pressures paranoia and domestic political battles. While migration may or may not be a human right,
the fair treatment of travelers is, but migrants in
As countries of the west are struggling to impose
‘minimum standards’[211]
for conceding rights to ‘undesirable’ foreigners, the rest of the world is
struggling for equal rights for their citizens.
The popular voice of the dominant west continues to establish
international norms according to their own interests, which are often defined
by the imagination of the paranoid nationalist or the pragmatic capitalist. Countries in the developing world are
precluded from this capacity due to the unequal terms of treaty
formations. There has been just concern
for the right of migrants since the 9-11 incidents as history has shown that
concerns for national security lead to heavier restrictions on migration. As a result
[1] Because of the cold war.
[2] Which result in the
exploitation of the people and the environment for the good of turning a
profit.
[3] Which have cut government
spending on social programs that support the most vulnerable of the society
such as the children, the old and women. Husain, Ishrat. Adjustment in
[4] Known as “gli anni di
piombo” or the years of lead in
[5] Richard Plender. International
Migration Law. Martinus Nijhoff,
[6] Shange Petrini. West
African Emigration to
[7] See id.
[8] Kosinski, Leszek, John
Clarke. “African Population
Redistribution – Trends, Patterns and Policies.” Redistribution of
Population in
[9] See PETRINI supra note 6.
[10] Although
[11] Commission of the European Communities. Social Europe: Immigration of citizens from third countries into the southern Member States of the European Community, A comparative survey of the situation in Greece, Italy, Spain and Portugal. Supplement 1/91.Comission of the European Communities,1991.page 31
[12] Adepoju, Aderanti.
“International migration in
[13] K.C. Zachariah and Julien
Condé. Migration in
[14] See id at 35, and Adepoju, supra note 12, at 65.
[15] See Zachariah supra note 13.
[16] See Ekanem, Ita I.
“Nigeria.” Handbook
of International Migration.
[17] See Adepoju supra note 12 at page 70.
[18] Alejandro Portes. “Economic
Sociology and the Sociology of Immigration.” In Portes, ed. The Economic
Sociology of Immigration.
[19] See Adepoju supra note 12 at page 43.
[20] See id at page 65.
[21] VanHear, Nicholas. New
Diasporas.
[22] See id at page 74.
[23] See Adepoju supra note 12 at page 43 and VanHear supra note 21 at page 72.
[24] See Adepoju supra note 12 at pages 62 and 77.
[25] See id. at page 66 and VanHear supra note 21 at page 72.
[26] See Adepoju supra note 12 at page 70.
[27] See VanHear supra note 21 at page 76.
[28] See id. at pages 72 and 77.
[29] See id. at page 76.
[30] See id. at page 78.
[31] Exemplified by the Universal
Declaration of Human Rights Art 13(2): “every individual has a right to return
to their home state.” Also supported by
some Latin American theorists (see Plender supra note 3 at page 61).
[32] Art 6 of proposition of 1892.
[33] in article seven of the same proposition as n31.
[34] Martin O.U. Gasiokwu. ECOWAS:
Problems of Citizenship and Free Movement. Mono Expressions,
[35] See id at page 104.
[36] Bruce Ackerman (1980)
“Social Justice in the
[37] See also Baubock, Rainer. Transnational
Citizenship: Membership and Rights in International Migration.
[38] See Plender supra note 5 at page 2.
[39] Book I, Ch. II §14.
[40] De
Jure Belli Ac Pacis, 1702,
Vol II, ch II, para 15.
[41] See Plender supra note 5 at
page 63.
[42] See Plender supra note 5 at
page 71.
[43] See Plender supra note 5 at
page 72.
[44] Example in J. Irazamy
y Puente. Exclusion and Expulsion of Aliens in
[45] op. cit.
[46] which was also discussed by deVattel.
[47] Nishimura Ekiu v.
[48] See Plender supra note 5 at page 1.
[49] Hyde (International Law, 1945), Jessup (A Modern Law of Nations, 1964) and Fenwick (Cases on International Law, 1951).
[50] The Chinese Exclusion Case,
Chae Chan Ping v.
[51] See Plender supra note 5 at page 72.
[52] See id at page 2.
[53] Francisco de Vicotria. de Indis et de Ivre
Belli, Relectiones. Ed. Ernest Nys. William S.
Hein and Co.,
[54] As has been cited supra: the
meetings of the
[55] See id.
[56] See id at page 62.
[57] See id at page 62.
[58] The ancestor of ‘carriers
liability’ also initiated by the
[59] Many of these, such as this
one specifically, are still law.
[60] Mentioned in the previous
paragraph.
[61] Such as deportation for
civil disputes or criminal action, et alit.
But it did away with the capital punishment for refusing to quit.
[62] See Plender supra note 5 at page 84.
[63] Such as in
[64] George Borjas, “The Economics of Immigration.” Journal of Economic Literature. December 1994. see also Mark Ellis. “A Tale of Five Cities? Trends in Immigration and Native-born Wages.” in Waldinger, ed. Strangers at the Gates. Forthcoming. which has an interesting analysis of different sectoral assimilation in different urban contexts according to the economic environment particular to that locality.
[65] In accordance with Schengen for
EU membership qualification.
[66] Minister of the Interior website. http://www.cittadinitalia.it/sezioni/stranieri/pop_up/stran_sogg.html
[67] John W.P. Veugelers. “Recent
Immigration Politics in
[68] See Jenks note 70 supra.
[69] See Veugelers supra note 67 at page 41.
[70] Rosemary E. Jenks, ed. Immigration and Nationality Policies of Leading Migration Nations. Center for Immigration Studies. August, 1992. at page 3.
[71] For the implications of such
a policy, see Shange Petrini. “US Policy and the de-Humanization of Immigrant
Women.” UCLA Undergraduate Law Journal. vol. 2, 2001.
[72] See Jenks supra note 70 at page 4.
[73] See id at page 6.
[74] See Petrini note 71 supra.
[75] Julie Watts. “The
Unconventional Immigration Policy Preferences of Labor Unions in
[76] ILO Natlex Database. http://www.ilo.org/natlex
[77] Unions are generally
pro-immigration. They know that they
can’t stop immigration and ideologically they want to support all workers. Many employers will hire illegal immigrants
in order to avoid paying taxes and higher wages. Therefore, unions generally support laws that
permit the regularization of immigrants which they hope will result in the
workers of the underground being brought to the surface. See
[78] See
[79] They tested some xenophobic
rhetoric during the negotiations of the Martelli immigration law, but
eventually backed off this dangerous issue for awhile. See also Veugelers (op cit.) p 43.
[80] An extremist
nationalist/separatist party of the north of
[81] Karen Wolman. “Right-Wing
Party Gains Support in
[82] There is heightened support
for the rightist Forza Italia, which has the majority in parliament at the
moment. See
article in Zuccolini. “Immigrati, espulsioni più facili.” Corriere della
Sera. In Primo Piano, pg 9. Venerdì 27 Luglio 2001. and Baldinin, Ferraino
e Zuccolini. “Immigrazione, il centrodestra si divide.” Corriere della Sera.
Sabato 28 Luglio 2001. also “Pugno di ferro verso gli immigrati.” L’Arena. 28 Luglio
2001.
[83] Who use the justifications
of protecting the society from the threats of migration.
[84] Tom Rees. “Migration
Policies of an Empire: The
[85] John A. Garrard. The
English and Immigration.
[86] Robert Miles, Diana
Kay. “the Politics of Immigration to
[87] See Rees supra note 84 at page 71.
[88] J.P. May. “Chinese in
[89] See Miles supra note 86 at page 25.
[90]
Lucian Kim. “
[91] The Economist. “Playing the
race card, again.” The Economist.com.
[92] See Kim note 90 supra.
[93] The Economist. “Straws in
the wind.” The Economist.com.
[94] See Garrard note 85 supra at page 71.
[95] See id at page 73.
[96] Operation Black Vote.
[97] The
[98] Conservatives Web Site. http://www.conservatives.com/manifesto_society.cfm.
[99] See Garrard supra note 85 at page 184.
[100] The Economist. “Go away, we
nee you.” The Economist.com.
[101] Robin Cook (
[102] See id.
[103] See Jenks supra note 70 at page 6.
[104] See ‘Law and Policy’
[105] George Vernez. National
Security and Migration: How Strong the Link? P-7983.
[106] See id.
[107] Based on my conversations
with representatives of various organizations for equal rights in
[108] See Plender supra note 5 at page 325.
[109] See id at page 311.
[110] According to the interests
of the EU states and the purpose of Schengen, which is to loosen interior
borders and strengthen those exterior.
[111]
[112] Robin Cohen. Frontiers of
Identity: The British and the others. Longman House,
[113] Normally studies of immigration policy draw a clear distinction between applicants for asylum and other migrants (such as economic migrants) because of the great differences in the procedures, laws and contexts of the situations, but since the UK normally only will accept most migrants from West Africa for long term settlement through the asylum process, it is an appropriate context to include here, as economic migrants have often become asylum applicants.
[114] Panikos Panayi, ed. The
Impact of Immigration: A documentary history of the effects and experiences of
immigrants in
[115] See id.
[116] See Cohen supra note 112 at page 113.
[117] See id at page 113.
[118] See Plender supra note 5 at page 472.
[119] ILCn151 8.4 present case if above rights violated.
[120] MWC (Part III, Art 18.1) right to equity with nationals of the State concerned before the courts and tribunals… fair and public hearing… competent independent and impartial tribunal established by law. (2) presumed innocent until proven guilty according to law. (3.b) adequate time for preparation of their defense (f) interpreter for free. (5) right to appeal (7) not on trial for crimes proved innocent in the past.
[121] MWC (Part III, Art 16) (6) brought promptly before a judge … within a reasonable time. (8) right to take matters to court… without delay… assistance… interpreter.
[122] MWC (Part III, Art 17.1) Migrant workers and members of their families who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity. (2) separated from criminals if held. (5) same rights as nationals to have visitors (8) if a migrant worker or a member of his or her family is detained for the purpose of verifying any infraction of provisions related to migration, he or she shall not bear any costs arising therefrom.
[123] MWC (Part III, Art 16.7).
[124] MWC (Part III, Art 16.3).
[125] European governments have
strengthened the amount of investigation they do in the sending countries to
detect bogus petitions for relief using more detectives that do their work both
in the home communities of the intended migrants as well as in the embassy
offices where they make their petitions.
[126] The Home Office. Statistics
on Race and the Criminal Justice System.
[127] See Cohen supra note 112 at page 108.
[128] Private Sector Involvement
in the Immigration Detention Centres.
[129] Personal interview with
representative of the non-profit Detainees Support and Help Unit,
[130] See Cohen supra note 112 at page 114.
[131] See id at page 120.
[132] Matthew Grenier. Beyond
Belief: The Home Office and
[133] Including Human Rights Watch
and Amnesty International.
[134] For example the
[135] The Foreign and Commonwealth
Office.
[136] From 1985 to 1995 only four
applications out of 10,380 for acceptance as refugees were accepted. 28 were granted an Exceptional Leave to
Remain (Grenier, 1).
[137] See Grenier
supra note 132.
[138] For example, in
[139] See COMMISSIONE PER
L’INTEGRAZIONE note 107 at page 34. Also,
Agenzia per l’Impegno del Veneto, COSES Consorzio per la Ricerca e la
Formazione, ed. “Il Detenuto Extracomunitario nel Carcere Penale di Padova.” Osservatorio
Regionale, Immigrazione Veneto. Quaderni di ricerca 2. Regione del Veneto,
Assessorato Politiche Flussi Migratori, 1997.
[140] See COMMISSIONE PER
L’INTEGRAZIONE note 107 at page 34.
[141] CESTIM. “Episodica del Razzismo
a Verona.” Verona: Centro Studi Immigrazione, 1994.
[142] Michele Sorica. Più di uno
al giorno: Atti di violenze contro gli stranieri nel corso del 1996: analisi di
20 quotidiani italiani. Conferenza del 1997 Anno Europeo Contro il
Razzismo. Roma, 1997.
[143] Exemplis gratis: Il Corriere
della Sera, Il Gazzettino, Il Giorno, Il Mattino, Il Messaggero, Il Piccolo, Il
Resto del Carlino, La Gazzetta del Mezzogiorno, La Nazione, la Repubblica, La
Stampa, et alit.
[144] L’Unione Sarda, La Gazzetta del
Sud, Il Giornale di Sicilia, et alit.
[145] See Sorica
supra note 142 at page 5.
[146] Translation. Originally: “Il
18,2% delle aggressioni finisce con la morte della vittima, il 41,2% si
“risolve” in un esito ospedaliero e c’è persino il 3,2% dei casi she subisce
lesioni permanenti”.
[147] See Martelli
Law discussed in the second paragraph of The Political Context of Restriction
in
[148] Commissione per l’Integrazione.
Primo Rapporto sull’Integrazione degli Immigrati in Italia. Dipartimento
per gli Affari Sociali, Presidenza del Consiglio dei Ministri. Roma, 1999. at page 5.
[149] See id.
[150] MWC (Part III, Art 39).
[151] MWC (Part III, Art 64.2), ILCn151 11, TDCRD (Annex 21).
[152] See COMMISSIONE PER
L’INTEGRAZIONE note 148 supra at page 27.
[153] See PETRINI supra note 6. See also Comfort Udo Ekpo. Nuovi Schiavi.
Associazione Nigerital. Verona, 1995.
[154] See Nunzio Ferrante. Frontiere
si, reticolati no! Immigrati terzomondiali: dal rifiuto alla accoglienza. Caritas Italiana. Roma,
1999.
[155] Most migrants that arrive in
[156] Jacobson, David. Rights
across Borders: Immigration and the Decline of Citizenship.
[157] The Declaration on the Human
Rights of Individuals Who Are Not Nationals of the Country in Which They Live
(1985) (hereafter as DHRINN) GA res 40/144, annex 40 UN GAOR Supp (No 53) at
252, UN Doc A/40/53 (1985); the International Convention on the Rights of All
Migrant Workers and Members of Their Families (1990) (hereafter as MWC) GA res
45/158, annex 45 UN GAOR Supp (No 49A) at 262, UN Doc A/45/49 (1990); the
Declaration on the Rights of Persons Belonging to National or Ethic, Religious
and Linguistic Minorities (1992) (hereafter as DRPBM) GA res 47/135, annex, 47
UN GAOP Supp (No 49) at 210, UN Doc A/47/49 (1993); the World Conference on
Human Rights Vienna Declaration (1993) (hereafter as WCHR93) UN Doc
A/CONF.189/5; the Third Decade to Combat Racism and Racial Discrimination
(1995) (hereafter as TDCRD); International Labour Organisation Constitution
(hereafter as ILOC); the International Labour Conference Convention (no. 143)
Concerning Migrations in Abusive Conditions and the Promotion of Equality of
Opportunity and Treatment of Migrant Workers (hereafter as ILCn143); the
International Labour Conference Recommendation (no.151) Concerning Migrant
Workers (hereafter as ILCn151).
[158] In the analysis of
statements made by Ghanaian and Nigerian officials found in the libraries and
accessible archives of those respective High Commissions in
[159] ECOMOG and UN missions to
[160] For more information, see
Francis, Fitzgerald A. “Structural Adjustment in
[161] Lomé Conventions, discussed
later in this article.
[162] Virginia A. Leary. “The
Effect of Western Perspectives on International Human Rights.” Human Rights
in
[163] See id at page 17.
[164] See id at page 16.
[165] It is a common western
fallacy to view
[166] Shange Petrini. “Traditional
Systems of Communal Management in Sountern
[167]
For more discussion of
[168] But some are a part of the African Charter of Human Rights OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982). For example the responsibility of the individual to the state and the right of economic development.
[169] This is also because of
their paradigm of international law which allows for the implementation of
signed international instruments to be left to the supreme discretion of the
state according to their arbitrary self interests. This can especially be seen in
[170] Sharon Stanton Russell,
Karen Jacobsen, and William Deane Stanley. International Migration and
Development in Sub-Saharan
[171] See Leary supra note 162 at page 29.
[172] MWC (Part III, Art 64.1) Without prejudice to Article 79 of the present Convention, the States Parties concerned shall as appropriate consult and cooperate with a view to promoting sound, equitable and humane conditions in connection with international migration of workers and members of their families; MWC (Part III, Art 68.1) collaborate with view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation; ILCn143 (Art 15) This Convention does not prevent Members from concluding multilateral or bilateral agreements with a view to resolving problems arising from its application.
[173] See Plender supra note 5 at page 357.
[174] See Russell supra note 170 page 109.
[175] See Plender supra note 5 at page 309.
[176] Dieter Frisch. The future
of the Lomé Convention: Initial reflections on
[177] Cox, Simon, Duran Seddon,
Helen Mountfield. Migration and Social Security Handbook. 2nd
ed. Child Poverty Action Group,
[178] Rev. Samuel Johnson. The History of the Yorubas. Routledge and Kegan Paul, 1921. at page 652.
[179] Dipartimento per gli Affari
Sociali. “Stati generali sull’immigrazione: Politiche locali e percorsi di
integrazione.” Rapporto sul Convegno a Vicenza, 12 Gennaio 2001.
Presidenza del Consiglio dei Ministri. Roma, 2001.
[180] Olajide Aluko.
“The Expulsion of Illegal Aliens from
[181] See Vernez supra note 105 at page 6.
[182] See Cox supra note 177.
[183] The European Commission. The
Lomé Convention: The
[184] Clara Mira Salama, Stephen
J.H. Dearden. “The Contonou Agreement.” DSA European Development Policy
Study Group Discussion Paper No. 20, February 2001. http://www.oneoworld.org/euforic/dsa/dp20.htm at page 2.
[185] See Francis supra note 160
for more information.
[186] Are obviously ideologically based.
[187] See Frisch 176 supra note 33.
[188] See id.
[189] See id.
[190] See Salama supra note 184 at page 3.
[191] See European Commission supra note 11.
[192] See id.
[193] See Salama supra note 184 at
page 6.
[194] See Frisch supra note 176.
[195] None of which in
[196] From the convention text. But there has been little effort made on the part of these to implement these things.
[197] See Salama supra note 184 at
page 6.
[198] Such a practice (as the filibuster also) may be well known in western politics, there exists no equivalent in African traditional bodies.
[199] See Frisch supra note 176.
[200] It can be seen in the
Tampere Summit of October that year conclusions 26 and 27 the EU intent in
using readmission clauses in conjunction with conditionality for aid. Also other intents since 1998 with the
Council Migration Working Party and their action plans (Statewatch News
Online).
[201] The Maastricht treaty states
in Art 63(3)(b) of Title IV that the EU can conclude agreements re repatriation
of illegals with third countries and to bring this into the Amsterdam Treaty,
but only after “consulting the European Parliament” according to Art 67.1. This was not done and it became part of
[202] Statewatch News Online. Lomé Convention used to impose repatriation on the world’s poorest countries. http://www.statewatch.org/news/ju100/01lome.htm
[203] See id. The Guardian also stated that they threw the clause in at the last minute.
[204] See id.
[205] See id.
[206] See id.
[207] See Frisch supra note 176.
[208] See Salama supra note 184 at page 10.
[209] Both of which are patterns that have been demonstrated by numerous economic development texts, such as those written by Todaro and Massey, et. alit.
[210] Linus Atarah. WTO Rules
Used to Kill
[211] The International Minimum
Standard was developed by western countries in the 19th-20th
centuries. It is meant to assure
security of persons and property of their citizens who wished to invest
capital, utilize skill or otherwise do business in the less developed parts of
the world. Some of its protagonists
included Borchard, Oppenheim, deVisschuer, Jessup, Schewarseberger, et al. It was explained by E. Root that “The basis of protection of citizens residing
abroad… [is a] standard of justice, very simple, very fundamental and of such
general acceptance by all civilized countries as to form a part of international
law of the world.” This is in contrast
to the Minimum Rights Theory that is popular with developing countries and many
international UN instruments. It
guarantees the necessities that a migrant would need for survival in a host
country. This theory is followed by, and
evidenced in, the Universal Declaration of Human Rights, the African Charter on
Human and People’s Right, the International Covenants on Civil & Political
Rights, etc. See Gasiokwu note 34 supra.