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Constructing+Migrants+Rights++++++++++++++++Shifting(Paradigms(and(Human(Rights(Innovations(in(Argentine(Migration(and(Refugee(

Legislation+

Undergraduate*Honors*Thesis,*Global*Studies**

University*of*North*Carolina*at*Chapel*Hill*Author:+Kelsey+Jost6Creegan++

+

Abstract:+This+thesis+examines+the+passage+of+Migration+Law+25.871+&+Refugee+Law+2.15+in+Argentina.+The

laws+marked+a+ sharp+paradigm+shift+ in+Argentinas+migration+ policy,+moving+away+ from+a+ policy+ crafted+in+th

paradigm+ of+ national+ security+ under+ the+ 197+ + 1983+ dictatorship+ towards+ one+ centered+ on+ a+ human+ righ

discourse.+This+project+aimed+to+identify+the+international+and+domestic+factors+that+influenced+this+incorporatio

of+a+human+rights+discourse,+and+to+determine+if+the+socialization+of+human+rights+norms+may+lead+states+not+only+t

adopt+international+norms,+but+also+to+appropriate+the+human+rights+discourse+and+apply+it+to+internal+policy+not+ye

regulated+on+the+international+scale.+In+light+of+Argentinas+authoritarian+past,+the+research+also+examined+whether

political+learning;+may+have+played+a+specific+role+in+this+case.+

+

The+ investigation+consisted+of+ interviews+ with+ government+representatives,+ civil+ society+members+ &+academic

Findings+ indicate+ that+ domestic+ factors+ were+ more+ significant+ than+ international+ factors,+ debunking+ top6dow

models+of+the+diffusion+of+human+rights+discourse.+The+research+reveals+that+a+twenty6year+fight+on+the+part+of+ci

society+organizations+was+the+key+impetus+in+ultimately+provoking+a+change+in+law.+These+groups+used+themes+o

history+and+conceptions+of+national+identity+as+rhetorical+tools+in+constructing+arguments+for+a+change.+This+long

term+effort+was+ultimately+successful,+however,+only+because+of+the+particular+political+climate+created+by+the+2001

economic+crisis.+Of+particular+ import+were+the+effects+that+the+crisis+ had+in+ shaking+up+the+political+status+quo+

thereby+opening+the+way+for+the+election+of+Nestr+Kirchner,+whose+administration+brought+an+agenda+of+huma

rights+and+Latin+American+regionalism.+

+

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Kelsey Jost-CreeganSenior Honors ThesisCurriculum in Global Studies, UNC-Chapel Hill

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TABLE OF CONTENTS

ACKNOWLEDGEMENTS!....................................................................................................................!2!

ABBREVIATIONS!..................................................................................................................................!4!

CHAPTER 1: INTRODUCTION!.........................................................................................................!5!

CHAPTER 2: BACKGROUND!.........................................................................................................!14!ARGENTINE POLITICAL CONTEXT!......... ......... .......... .......... ......... .......... ......... .......... .......... ......... .......... .......!14!

AUTHORITARIANISM AND DEMOCRACY IN THE 20THCENTURY!..............................................................!18 !

HISTORICAL FACTORS:NEOLIBERAL REFORM AND ECONOMIC CRISIS!......................................!21!MIGRATION AND MIGRATION POLICY IN ARGENTINA!.........................................................................!26 !REFUGEE!LAW!..........................................................................................................................................................!40 !

THE FORMATION OF ALAW!...............................................................................................................................!41 !

CHAPTER 3: LITERATURE REVIEW!..........................................................................................!43!

HUMAN RIGHTS AND STATE SOVEREIGNTY!.................................................................................................!44 !HUMAN RIGHTS IN LATIN AMERICA!................................................................................................................!51 !

HUMAN RIGHTS IN ARGENTINA!........................................................................................................................!54 !

MIGRANTS RIGHTS AS HUMAN RIGHTS:THENEXT FRONTIER?!............................................................!62 !

CHAPTER 4: RESEARCH METHODS!..........................................................................................!70!RESEARCH PARAMETERS!.................................................................................................................................!70 !

Location!....................................................................................................................................................................!70!

Timeline!....................................................................................................................................................................!72 !

STUDY!.......................................................................................................................................................................!73 !Participants!.............................................................................................................................................................!73 !

Interview format!....................................... ........................................ ......................................... .............................!74!Interview Questions!..............................................................................................................................................!75!

Additional Research!.............................................................................................................................................!76!

Post-Field Work and Analysis!..........................................................................................................................!77!

CHAPTER 5: FINDINGS!....................................................................................................................!78!ACTION AND STRENGTH OF NONGOVERNMENTAL ACTORS!.......... .......... ......... .......... ......... .......... .......... ..!79!

HISTORY AND CONCEPTS OF IDENTITY!..........................................................................................................!95 !

TIMING AND HISTORICAL CONTEXT!..............................................................................................................!106 !

CHAPTER 6: CONCLUSIONS!.......................................................................................................!131!

APPENDICES!......................................................................................................................................!138!APPENDIX 1!.........................................................................................................................................................!138!APPENDIX 2!.........................................................................................................................................................!143!APPENDIX!3!..........................................................................................................................................................!144!

APPENDIX 4!.........................................................................................................................................................!146!

BIBLIOGRAPHY!...............................................................................................................................!150!


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ACKNOWLEDGEMENTS

This project would not have been possible without the help of so many people, to whom Iam truly grateful. The process of investigating, writing, and editing this thesis has trulybeen a culmination and a highlight of my undergraduate career at UNC-Chapel Hill, and I

am forever indebted to those who made this wonderful experience possible.

Firstly, I quite simply cannot express the depth of my gratitude to my advisor, Dr. NiklausSteiner, and to my second reader, Dr. Martin Sueldo. In the way that Dr. Steinerapproaches thesis advising is evident his love and dedication to teaching and, particularly,to the teaching of undergraduates. I am so grateful for the gift of his time, for his patiencewith my procrastination and his thoughtful listening to my many rambling thoughts, as Istruggled to articulate ideas that were of yet mere seedlings. I am so grateful for the help ofDr. Sueldo in designing and implementing my research; without his insight and assistancein making sure that my project was linguistically and culturally attuned to the specific site

of Argentina, I am positive that my interviews would not have been nearly as successful,and his insight in analyzing my results was extremely helpful. I also thank Dr. MichalOsterweil for her dedicated instruction of the Global Studies thesis seminar. Her kindguidance was instrumental to the development of all of our projects. Her patience andunderstanding of the challenges that this process can present made it much lessoverwhelming.

I am also grateful to the comments and critiques of my peers in Global Studies, as theirthoughtful reading of my drafts molded the project into what it is today. I owe a particulardebt to my thesis buddy, Lindsay Rosenfeld, and to Elizabeth Willis: for hours spent

working in solidarity, for all the times that they listened to my babble, for their trueinvestment in my work and their genuine excitement when I came across something Ithought was of value to the project, even when I could not yet articulate why. Whats more,for their laughter, hugs and smiles, all of which got me through the rough spots and stress. Iam also grateful to Cora Went, who as my roommate in Buenos Aires served as a friend,confidante, travel buddy, and email-editor.

I am so grateful to all of my interviewees, who generously donated their time and theirknowledge to this project. I was overwhelmed by peoples willingness to take the time tocontribute to my research. I owe a particular gratitude to the staff and former staff of theFundacin Comisin Catlitca Argentina de Migraciones, as it was my internship at thisorganization that sparked the idea for this project.

I must also thank the staff of the Global Detention Project, who taught me research skillsthat were integral to my work. I am grateful to the staff of The Argentina Independent, whoallowed me to explore my research while working as a journalism intern with their paper. Iam also forever indebted to the numerous teachers and professors who have touched my


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life in a variety of ways. In addition those mentioned above, numerous professors played anintegral role in helping this project to develop. I am grateful to Dr. Hannah Gill, as throughethnographic research in her class on Latino migrant perspectives I discovered mymethodology for the research in this project. I am also grateful to many professors of theUNC Spanish department, who have helped me to develop Spanish skills and greater

appreciation and understanding for the cultures of Latin America.

I am so thankful for the support of the Morehead-Cain Foundation, through which I havestudied at Carolina, completed internships with the FCCAM, GDP and The ArgentinaIndependent, and returned to Argentina in the winter of 2012 to finish interviews. It goeswithout saying that the support of the Morehead-Cain has opened doors that never wouldhave been available to me otherwise, but it is more than that: the unfailing faith and trust ofthe staff and incredible support in projects I proposed gave me the permission to dream of and then realize - adventures that I wouldnt have otherwise believed possible.

At the core of these thanks lies the deepest thanks of all, that to my incredible family. Tomy parents, who have selflessly worked to provide me with a never-ending range ofopportunities and experiences. Mom and dad, I will never find the words to express myimmense gratitude for everything you have given me. A foundation of love, kindness andtrust that made me believe no dream was ever too big. A childhood, adolescence, andyoung adulthood splitting at the seams with incredible educational opportunities andunimaginable travel experiences. And this year, a kind ear whenever I most needed it.These gifts you have given me will stay with me forever. To my brother, Nick; I am solucky to have a sibling I can call a best friend. The three of you have supported methroughout this project, listened to my breakdowns, discoveries and excitement, and

believed that I could do it even when I was sure I could not. I am also grateful to mygrandparents, whose sacrifices paved the way to the opportunities and gifts I have today.Mueti and Atti, your house full of books and incredible wealth of knowledge have inspiredin me an unquenchable thirst to continue studying, in the hopes that someday I will be ableto claim a sliver of the knowledge that you both have accumulated over a lifetime ofconstant curiosity. And to the rest of my family, who has always supported me and in thisproject has patiently listened to my confusing recounts of how my research was forming:you have all played a role in this project, and for that I am so grateful.

Thanks'to'the'many'cafs'that'allowed'me'to'sit'for'hours'with'a'caf'con'leche'and'

medalunas!''(photo'taken'by'author)'


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ABBREVIATIONS

Abbreviation Full Name (English and Spanish)

CELS Centro de Estudios Legales y Sociales

Center for Legal and Social Studies

CEJIL Centro por Justicia y Derecho Internacional

Center for Justice and International Law

CTA Centro de Trabajadores Argentinos

Center for Argentine Workers

DNM Direccin Nacional de Migraciones

Argentine National Migration Bureau

FCCAM Fundacin Comisin Catlica Argentina deMigraciones

Fundation of the Argentine Catholic Comission

for Migration

IACHR Inter-American Commission on Human Rights

Corte Interamericana de Derechos Humanos

IOM International Organization for Migration

Organizacin internacional para la migracin

(OIM)

OAS Organization of American States

Organizacin de Estados Americanos

UNHCR United Nations High Commissioner forRefugees

Alto Comisionado de Las Nacionaes Unidas

para Refugiados (ACNUR)


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CHAPTER 1: INTRODUCTION

The development of migrants rights is one of the last frontiers in the evolution of

international human rights standards. Since the end of World War Two, the international

human rights regime has gradually grown to encompass a broader understanding of human

rights and to better delineate the distinct needs of different populations. The notion of

universality in the international human rights regime would appear to transcend national

boundaries and questions of citizenship. Because human rights norms evolved within the

nationalistic context, however, they were initially crafted in the paradigm of the nation-

citizen relationship. Increasing migration flows, through which citizens are displaced from

their nation of belonging, have thereby presented one of the greatest challenges to a truly

global realization of human rights standards. As Javier de Lucas suggests:

Tackling the question [of migration and human rights] forces us to undertake a sort

of test about the consistency of our conception of human rights and the political

(and social) will to take those rights seriously, speaking of this penultimate

theoretical and practical human rights frontier that is the question of migrants

rights (de Lucas, p. 219).1

Ironically, the very states that have been central to the formation and promotion of

the international human rights regime often present some of the most restrictive migration

policies. As globalization has eased both communication and transportation, global

disparities have become more evident and potential migrants have greater mobility. In

response to growing waves of migration, however, many liberal democracies have

implemented increasingly restrictive migration policies that frame the issue of migration as

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1 All translations of Spanish sources, unless otherwise noted, are the work of the autor.


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a national security concern. Migration detention and deportation - often without judicial

review and/or sentencing limits and limited or barred access to public services have

become the hallmarks of the migration policies of modern liberal democracies in the Global

North. These increasingly restrictive migration policies have not stopped the flow of

migrants, and have instead resulted in the growth of large populations of undocumented

migrants in many migrant-receiving countries.

Migrants particularly those lacking documentation and asylum seekers have

come to be some of the most vulnerable populations in the global community2. At the

international level, the issue of migrants rights remains largely unresolved. The

Convention on the Rights of All Migrant Workers and Members of Their Families took

over twenty years to accumulate the number of ratifications necessary for it to enter into

force, the longest amount of time of any international human rights treaty to date. And even

now, the vast majority of countries party to the convention are migrant source countries,

with most significant migrant destination countries refusing to subject themselves to the

treaty norms. Increasing concerns over the treatment of migrants in destination countries

have provoked strong responses from source countries. The North-South dichotomy of

many migration patterns with countries in the Global North serving as destination

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2 For the purpose of this thesis, Undocumented migrants refers to both those migrants who initiallyentered the country with authorization but whose authorization has since expired, and those who enter thecountry without authorization. Asylum seekers refers to those migrants who are physically present withinthe state territory either with or without state authorization and who request authorization to remain inthe country for humanitarian reasons, on the basis that they meet the definition of a refugee as laid out bythe 1951 Refugee Convention. Refugees refers to those asylum seekers whose applications have beenaccepted and have been granted refugee status by the destination country.


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countries and those in the Global South acting as source countries3 has created further

controversy, as source countries argue that migration concerns cannot be separated from

those of global economic disparities.

The situation is further complicated by the reality that in an increasingly global

world, a growing number of countries can no longer be classified as either a destination

country or a source country. Instead, these nations lie at the crossroads of migration,

serving as both a destination often for regional migrants and a source often for

intercontinental migrants. Within the global discussion of migration, these nations have an

interesting role to play, as they are affected both by nationalistic questions of sovereignty

regarding the migration arriving at their shores and by normative concerns of the treatment

of migrants as it affects their citizens abroad. One country that lies at such an intersection is

Argentina.

For much of the twentieth century, Argentina was a significant destination country

for migration, initially originating from Europe and later increasingly from other Latin

American countries. A steady stream of regional migrants continues to enter the country

today. Since the 1970s, however, the country has become a source country for migration, as

Argentines first fled the military dictatorship of the 1970s and 1980s, and then the

economic difficulties of the post-authoritarian period that culminated in the economic crisis

of 1999-2002.

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3 In this thesis I will use the term Global North to refer to the advanced industrial economics, such asEurope and the United States, while Global South will refer to developing countries, including Argentina.


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Until 2004, migration policy in Argentina was defined by the Law 22.439, passed

under the 1976-1983 military dictatorship. This law known colloquially as the Videla

Law for General Jorge Rafael Videla, leader of the military dictatorship at the time the law

was passed was notoriously restrictive in nature. In this way, the legislation reflected

many of the restrictive policies of modern liberal democracies that are source countries for

migration: access to residency was extremely limited for unskilled workers, and detention

and deportation often without judicial review were employed as responses to steady

undocumented regional migration. Under this policy, a large and vulnerable population of

undocumented migrants developed.

The Videla Law continued in effect for over twenty years after Argentina returned

to democracy in 1983, and at times was applied even more harshly than it had been under

the authoritarian regime. In the second half of the 1990s, as Argentina spiraled towards the

economic meltdown that would come to be the 1999-2002 economic crisis which at its

worst moments saw 24% of the population unemployed and 56% of the population living

in poverty (Baer, pp. 44) high-ranking public officials increasingly used migrants as

scapegoats for social and economic woes. Throughout this period, there was no legislation

governing the provision of refugee status, which instead continued to be dictated by

executive decree.

Then, two years after the economic crisis, when the country was still feeling the

echoes of deep social unrest and uncertainty, a new migration law was passed that

completely altered the paradigm under which migration was regulated. The 2004 Migration

Law 25.871 not only revoked the Videla Law, but also goes above and beyond the

legislation of any traditional migrant receiving country to date: the law declares the right to


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migrate a human right, and grants migrants a wide range of rights and protections

regardless of their migratory status. Two years later, in 2006, the country adopted the

Refugee Law 26.165, which also employed a strong human rights discourse and surpassed

international standards in the area of refugee protection. As the majority of migrant

destination countries applied increasingly restrictive norms to the governance of migration,

Argentina codified the rights of migrants and asylum seekers in two laws4 that far exceeded

international human rights standards.

Whats more, this change in law was accompanied by significant alterations in

discourse and policy. The xenophobic discourses of decades passed virtually disappeared

from the public sphere. The discursive space of the political elite shifted, as politicians and

bureaucrats adopted the human rights discourse of the new Migration Law. A statement by

Argentine President Cristina Fernndez de Kirchner outlines this newly dominant political

paradigm:

We are all children or grandchildren of an immigrant. We have to echo our ownhistory and the identity of our country. We have to integrate immigrant populations

instead of discriminate against them. We must oppose the cultural subordination

that calls for laws against immigrants In times of economic crisis, xenophobic

attacks always arise that try to place the blame for the problem with immigrants. It

is part of the human condition to look for a scape goat, and this practice is

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4 In this thesis, the terms Migration Law, 2004 Migration Law and Law 25.871 will refer to theMigration Law 25.871 passed in 2004. The terms Refugee Law, 2006 Refugee Law and Law 26.165will refer to the Refugee Law 26.165 passed in 2006. The terms Law 22.439, 1981 Migration Law andVidela Law will refer to the 1981 Migration Law passed in 1981 under the 1976 1983 militarydictatorship.


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dangerous because it has given rise to political movements that consecrate

atrocious violations of human rights.5

The Migration Law and Refugee Law have also been accompanied by institutional change

that demonstrates that the change in legislation both prompted and was indicative of a

wider policy shift.

The extreme paradigm shift in discourse and policy in Argentina that was marked

by the adoption of the 2004 Migration Law and the 2006 Refugee Law provokes the central

research question of this thesis. Ultimately, the goal of this thesis was establish the

international and domestic factors that influenced the incorporation of a human rights

discourse into these two laws, and thereby explore whether the case of these two laws in

Argentina demonstrates that the socialization of human rights norms may lead States not

only to adopt and implement international norms, but also to eventually appropriate the

human rights discourse and apply it to internal policy not yet regulated on the international

scale. I was particularly interested in this question with regards to migration and asylum

policy, and sought to understand what factors may influence a State to adopt policy that

recognizes the rights of these populations.

Some may question the choice of focusing on legislation, as laws often represent a

change in rhetoric without prompting a meaningful change in practice. I take the view of

Kathryn Sikkink, however, who argues for seriously considering the law, as both a

crystallization of state expectations and a vehicle for transforming state understandings and

practices (Sikkink 1996, p. 707). Examining pieces of legislation and the discourse therein

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5"Argentina*celebra*bicentenario*con*nueva*ley*de*migraciones*."*Pueblo'en'Linea,*5*April*2010.*Web.*15*Mar.*2012.*

http://spanish.peopledaily.com.cn/31614/6972337.html*!


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

project itself. Whats more, legislation and the discourse that drives it creates

expectations of State behavior. Although the State may fulfill those obligations to varying

degrees, the written law ultimately has the power to transform the way that an issue is

understood.

Traditional scholarship has viewed the concept of universal human rights as a

challenge to state sovereignty, proposing that States adopt human rights discourse largely

in response to external international pressures. More recently, however, scholars have

explored the question of whether the very notion of sovereignty is changing. A study of the

new Migration Law therefore allows us to insert ourselves in that debate and to explore

what factors may motivate States to adopt human rights discourse regarding the protection

of a minority population, despite the absence of globally accepted human rights norms and

treaties in the area. In this light, the Refugee Law serves as a foil, in that international

norms do exist with regards to the treatment of asylum seekers and refugees. We might

therefore expect that a generous refugee law would be easier to pass than a generous

migration law, given the international pressure to respect the rights of refugees. And yet,

the Migration Law passed first in Argentina, with the Refugee Law passing two years later.

Argentina provides a particularly interesting case through which to study the

development of human rights discourse and policy because of the countrys unique history

with authoritarianism and transitional justice. From 1976 to 1983, Argentina passed

through a brutal military dictatorship. In the notorious dirty wars, the authoritarian

governing regime unleashed a reign of terror that featured torture, death and disappearance.

Human rights groups now estimate that between 20,000 and 30,000 people disappeared


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during this dictatorship (Brown, pp. 240-241). Following the transition to democracy,

Argentina conducted now world famous truth commissions and trials of formal military

leaders.

In light of Argentinas authoritarian past, I am also interested to see whether

political learning; in the post-authoritarian context may have played a specific role in the

Argentine case, and how authoritarian legacies influence the role of human rights dialogue

in the development of policy in post-authoritarian democracies. Given the polemic nature

of processes of transitional justice in post-authoritarian societies, these questions are

significant in that they explore whether the effectiveness of transitional justice and the

resulting strength and form of authoritarian legacies influence the future codification of

human rights-oriented policy.

By examining the current state of migration and asylum policy in post-authoritarian

Argentina, we may consider the factors that influence State to adopt human rights discourse

in legislation and in the norms of the political elite. The investigation that forms the basis of

this research consisted of a series of interviews with professionals involve in the fields of

migration and human rights in Argentina, including politicians, state bureaucrats, civil

society members and academics.

Chapter 2 will provide important background to the case, and is divided into two

parts: general political and economic background important to understanding processes ofpolicy formation today, and the history of migration and migration policy in Argentina.

Chapter 3 will incorporate an in-depth literature review, exploring the current conversation

on factors that may influence States to adopt human rights discourse. This chapter will also


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explore the themes of authoritarian legacies and political learning as well as the current

state of migrant rights in the field of human rights. Chapter 4 will provide information on

the research methods used in the development of this project, which will consist mainly of

interviews with policy stakeholders, including politicians, human rights activists, and

refugees and asylum seekers themselves. Chapter 5 will outline the findings of the work.

Finally, Chapter 6 will provide further analysis, conclusions and suggestions for further

research.


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CHAPTER 2: BACKGROUND

Several historical and contextual factors are essential to understanding the

development and implementation of migration policy in Argentina today. First, because

this thesis focuses on policy formation, we must consider the specific context of the

Argentine political system and recent Argentine political history. In this regard, we will

consider in particular centralization, the power of the executive and the phenomenon of

Peronism in the modern Argentine political system. Additionally, with regards to political

history, we will consider the history of authoritarian rule in the country. Finally, as this

thesis focuses on migration and asylum policy, we will explore the demographic history of

migration to Argentina, the impact of this history on the formation of Argentine national

identity, and the trajectory of migration policy in the country since Independence.

ARGENTINE POLITICAL CONTEXT

Argentina is a federalist republic with twenty-three provinces and one autonomous

city, the capital of Buenos Aires. The conflict between centralized power concentrated in

Buenos Aires and the federalized power of the provinces has been ongoing since Argentina

gained independence from Spain in 1816 (CIA 2013). L.S. Rowe argues that, the conflict

between federal and unitary principles constitutes one of the most instructive chapters in

the history of many South American countries but in no country has this struggle been as

deeply significant as in the Argentine republic (Rowe 1921, p. 3). Indeed, Argentina is

one of the least centralized countries in the world, and the provinces hold all powers that

are not specifically relegated to the government under the Constitution. They also have

control over the provision of significant public services such as education and health, and


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are responsible for executing some national level policies, including social welfare

programs (Ardanaz, Leiras and Tommasi 2012, p. 2; 6)

While migration as a legislative issue is dealt with on a federal level, provincial

actors traditionally hold significant sway over the national policy-making process, even

with regards to issues that fall under the authority of the federal government. Often, the

president will negotiate with provincial actors to gain their support on a legislative issue,

using the bargaining chip of fiscal transfers, as the provinces all depend on federal funding.

(Ardanaz, Leiras and Tommasi 2012, p. 6). As some provinces are more or less affected by

migration than others, it can be expected that legislators from different provinces maysupport drastically different legislation.

Map'of'Argentina,'divided'into'23'provinces'and'the'Capital'city'of'Buenos'Aires'

From:*http://geografiaHeducmedia.blogspot.com/2012/04/argentinaHdivisionHpolitica.html**

'


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The Argentine Constitution was signed in 1853, but has been amended and

suspended many times since; the most recent amendments were made in 1994, under the

Menm administration (Crespo 2009). The Constitution was most recently suspended

between 1976 and 1983, during the last military dictatorship, which will be further

discussed in this chapter (Encyclopedia of Nations).

In addition to the national Constitution, each province has its own constitution

(Crespo 2009). The republic operates on a civil law system that is based on Western

European legal systems. The president serves as both the Head of Government and the

Head of State. The executive branch is complemented by independent judiciary andlegislative branches. The seat of the judiciary branch is the seven-member Supreme Court,

which is appointed by the president and approved by the legislation. In 2006, the Argentine

Congress passed a bill that calls for the number of Supreme Court Justices to be reduced

from seven to five. The third branch of government is the legislature, composed of an upper

house called the Senate and a lower house called the Chamber of Deputies (CIA 2013).

The unit of the province is considered one constituent in all elections for Senators

and Deputies. Scholars argue that this basis of the province as a constituency makes the

province the locus of party competition and the base of political support for politicians and

parties (Ardanaz, Leiras and Tommasi 2012, p. 2; see therein De Luca, Junes and Tula

2002, Benton, 2009). This style of party system lends itself to a tumultuous political

system. Martn Ardanaz, Marcelo Leiras, and Mariano Tommasi argue that Argentinas

large political parties have been born and have recently developed in such a way that their

national governing coalitions are best described as little more than (potentially volatile)


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AUTHORITARIANISM AND DEMOCRACY IN THE 20TH CENTURY

From the 1930s through the 1980s, Argentina oscillated between democratic and

dictatorial regimes. In this period, there were no two democratic governments back-to-

back. This political and economic turmoil escalated particularly in the 1960s and 1970s, as

left-wing guerrilla groups in particular, the Montoneros and the ERP battled against a

government run by President Isabel Pern wife of former president Juan Pern and her

Argentine Anticommunist Alliance, known as the Triple A. (Vanden and Prevost, pp. 402

406; Brown, p. 240). According to Jonathon Brown by early 1976, public opinion

clamoredfor a military coup dtat (Brown, p. 240).

In 1976, the Argentine military did indeed a coup and took over the government,

creating ajunta co-directed by the head of the army, navy and air force. (Vanden and

Prevost, pp. 402 406). Although Argentina had been alternating between dictatorship and

democracy for much of the twentieth century, the military coup of 1976 marked the

entrance of a dictatorship that would come to be notorious for the brutality that it wieldedagainst its own citizens.

The military takeover was part of a larger trend in Latin America towards the

entrance of authoritarian rule. In the Cold War context, a wave of military coups swept the

region. National security ideology, with its assumption that authoritarian rule and human

rights violations were acceptable in the struggle against insurgencies and communism,

reigned. Lutz and Sikkink argue that the international environment provided cover and

impetus for the wave of repression in Latin America in the 1970s and 1980s. Many

countries had levels of state repression not previously witnessed since the colonial or

independence period (Lutz and Sikkink 2001, pp. 280-281).


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Tom Farer notes that even though many Latin American countries had experienced

authoritarian rule in varying degrees and with varying frequency since gaining

independence, the regimes that rose up in the 1960s and 1970s were distinct in that they did

not define themselves as brief interruptions in constitutional government induced by an

emergency but rather intended to suspend indefinitely both elected regimes and the

frequent companions of such regimes, freedom of speech and freedom of association.

Categorized as bureaucratic authoritarian, these regimes were organized, disciplined,

and determined, supported by their own arms and key segments of the middle and upper

class and were often staffed by a comparatively well-educated generation of officers(Farer 1996, pp. 1-2).

Perhaps nowhere did this repression come to be as notorious as Argentina.

Comparing this dictatorship to those in neighboring Chile and Brazil, Anthony Pereira

argues that the Argentine military junta was the most drastic of all and in institutional

termsthe most innovative and the most daring (Pereira 2005, p. 4). Upon taking power

in 1976, the military junta unleashed the Process of National Reorganization, known

commonly as El Proceso. Promising to combat inflation and eliminate the leftist

guerrillas, thejunta engaged in what is today referred to as an undeclared war a guerra

suciaagainst its own people (Arditti, p. 36). Economic themes were at the forefront of

politics; the junta largely justified its use of brutality as necessary measures in a war against

the Marxist threat. Referring to this alleged communist threat as a cancer, the military

implemented a widespread and far reaching campaign. The militarys mirrored reflected

that of military regimes in Paraguay, Uruguay, Brazil and Chile, all of which cooperated in

the now-notorious Plan Cndor.


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The Argentine Dirty War has become globally synonymous with cruelty and broad-

based human rights violations. The regime implemented a new methodology of

repression (Arditti, p. 37) and the use of torture, clandestine detention and rape was

widespread and systematic (Brown, p. 243). A new term entered into the quotidian

Argentine vocabulary: the desaparecidos, or disappeared, those people captured and

killed by the military whose bodies were subsequently disposed of in secret, leaving their

families without the closure of knowing the fate of their loved ones (Brown, p. 245). While

it is estimated that there were around 2,000 left wing guerillas at the time that the military

gained power, human rights groups calculate that between 20,000 and 30,000 peopledisappeared during the dictatorship (Brown, pp. 240-241).

Anthony Pereira provides an important analysis of the use of legality under the

military junta. This understanding is significant to the understanding of policy, legislation

and the judiciary in that period, which in turn is significant to understanding the legal

legacies of the regime. He argues, The Argentine regime, despite the rhetorical mildness

of its proclaimed ambition of national reorganization, was revolutionary in its disregard

for and violation of preexisting legality. There was more opposition within the Argentine

judiciary body towards the military dictatorship than there was in parallel institutions in

Chile and Brazil, where the judiciary largely supported and was thereby integrated into the

military system. Thus, the Argentine military ultimately surpassed these traditional state

institutions instead of working through them; Pereira defines this route as antilegalistic.

The use of disappearances, operating on a clandestine nature and evading the judiciary,

became a full-scale program and an official policy as the regime dispensed with legal

formalities almost entirely (Pereira 2005, pp. 119, 128- 129).


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HISTORICAL FACTORS: NEOLIBERAL REFORM AND ECONOMIC CRISIS

Another significant factor to consider in recent Argentine political history is the

neoliberal reform period of the 1990s and the 1999-2002 economic crisis. The economic

crisis is a defining moment in modern Argentine history, and its impacts were far-reaching

and long lasting in Argentine society. Today, many Argentines blame the crisis on

neoliberal policies pursued by the presidential administration of Carlos Menm in the

1990s. Miguel Teubal labels the economic a crisis of neoliberalism and particularly of

the severe structural adjustments applied in the 1990s and the beginning of the new

millennium under the Menem and De la Ra administrations (Teubal 2004, p. 173).

To understand where the neoliberal reforms of the 1990s had their roots, one has to

understand the economic conditions under which Argentina made the transition to

democracy. As we have explored, economic themes were central to the dictatorships

rhetoric; the regime largely justified its use of brutality as necessary measures in a war

against communism. Less tangibly brutal than the notorious acts of kidnapping, torture andmurder conducted by the military, but undoubtedly also repressive was the economic policy

of the regime, designed to limit the historically strong workers movement and local

industry in favor of international investment (Arditti, pp. 36-37). These policies, part of a

regional push towards liberalization under the Washington Consensus (Amann, p. 235),

resulted in deindustrialization and debt dependency. While these economic practices

resulted in seeming prosperity in the first five years of military control, this growth was

propped up by inflation (Arditti, pp. 36-37), and the last three yeas of the regime featured

rapid economic collapse, which was further augmented by the Falklands War (Wijnholds

2003, p. 102). By the time the government transitioned to democracy, the economy was


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in a crisis unparalleled in the nations history (Blake 1998, p. 5).

The end of the dictatorship in 1983 and the transition to democracy heralded

significant change, but the dominant paradigm remained largely consistent. Indeed, in the

1990s, neoliberal policies similar to those pursued by thejunta assumed the status of a

new orthodoxy. Under the administration of President Ral Alfonsn (elected in 1983), the

government attempted to implement a series of stabilization policies (the Austral Plan, the

Primavera Plan) but ultimately these changes only led to new cycles of inflation (Wijnholds

2003, p. 103 104; Blake 1998, p. 6). When Carlos Menem was elected Argentinas

president 1989, he implemented radical reform with extensive market deregulation and

an active courting of foreign, especially U.S., investors (Amann, p. 236). In 1994,

Argentina came to an agreement with International Monetary Fund (IMF) that included, as

was customary, mandatory Structural Adjustment Programs (SAPs).

Despite the difficulties that Argentina had with debt following the transition to

democracy, in in this period preceding the large-scale implementation of SAPs, Argentinas

economy remained the most prosperous and industrialized economy in Latin America.

Perhaps most significant in a region filled with disparate wealth distribution, until the

1990s 80% of Argentines were middle class, and workers and their bosses split the

nations income exactly in half (Jeter 2009, pp. 35-36). Despite these positive economic

indicators, however, the persistent presence of hyperinflation in 1989 led the government to

pursue drastic measures (Sader and Manrique, p. 193) and the adoption of the IMF

recommended SAPs. The SAPs promoted extreme privatization, extensive de-

regularization especially with regards to the labor market and an opening of the

country to the world financial markets(Teubal, p. 174).


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In 1991, Argentina implemented the Convertibility Plan, which responded to

hyperinflation by pegging the Argentine peso to the U.S. dollar (Teubal, p. 174). This plan

was part of a trend of IMF-supported currency stabilization programs in Latin America,

including Brazil and Mexico. These programs achieved rapid reductions in inflation; in

Argentina; for example, inflation rates went from over 300 per cent in 1989, to nonexistent

in 1996. This decrease in inflation meant a large increase in real income, which in turn lead

to an increase in domestic demand and economic growth. This economic growth in turn

gave investors incentive and confidence to return to Argentine markets and thus allowed

the country to eliminate debt by privatizing public assets (Kregel, pp. 3-4). Perhaps due tothis perceived success, Argentina maintained its convertibility peg longer than its peers

Mexico and Brazil, to the point where the program became an economic drag (Ko, p. 10;

Wijnholds 2003, p. 106).

And so in the short term, the SAPs lead to growth (Amann 2010, p. 236), and the

IMF heralded Argentina as a success story (Kregel, p. 1). In the long term, however, the

policies were revealed to be problematic, both economically and normatively.

First, the SAPs had severely negative economic outcomes, including a period of

euphoric growth that masked significant problems. Ultimately, these problems resulted in

economic suffering for a large part of the population, and a pattern of moral hazard and

irresponsible economic decisions that eventually lead to the 1999-2002 economic crisis.

The argument that the crisis was largely driven by the policies promoted by the SAPs is

widely supported by scholars, and the IMF itself has admitted some degree of failure in the

economic results of the SAPs and their culpability in creating the crisis (Conway). The

growth generated by the SAPs offered immediate, tangible improvements in economic life,


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but covered up structural problems including a continued dependency on debt and

uncompetitive domestic industry (Amann 2010, p. 237). Although foreign lenders returned,

the government did not achieve fiscal balance. Debt remained a reality of economic life,

and strict monetary policies made that debt harder to pay (Kregel, p. 3; Amann 2010, p.

237). To maintain the convertibility peg, Argentina was dependent on both the IMF and

private funders, and thus vulnerable to external shocks (Ko, p. 11).

Not only did dependency and debt make Argentina susceptible to external events,

this form of growth also created challenges for domestic industry. Domestic industry never

evolved into a strong competitor for foreign goods; the decrease in inflation rendered

Argentine products too expensive to sell abroad, and products shipped into the country

artificially cheap(Jeter 2009, p. 27; 45). Indeed, by 1997, the share of imported goods

and services in GDP had doubled to around a 12 percent, while the share of exports

remained substantially stable around 10 percent. Kregel categorizes this growth as debt-

led as opposed to export lead growth, and argues that it created a vicious cycle of

external financing crises (Kregel, pp. 2-3; 5).

In Argentina, these problems in policies promoted by the SAPs led to a series of

irresponsible economic decisions that ultimately resulted in a long-term recession and the

major economic breakdown of 1999-2002 (Kregel, pp. 2-3). The 1999-2002 crisis was

predicated by three years of recession (Wijnholds, p. 110). Leading up to the crisis, the

Argentine economy was rocked by a series of both external including the Asian financial

crisis, devaluation of Brazils currency and increase of the U.S. dollar and internal - tax

hikes changes, leading to a deflationary trap (Amann, p. 328; Ko, p. 11).


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Between the end of 2001 and the beginning of 2002, the country underwent a

massive devaluation, a world-historical record sovereign default on $95bn of debt, and a

collapse of the financial system (Weisbrot 2011). This crisis was the most profound

economic depression Argentina had ever faced. At the worst moments, 24 percent of the

population was unemployed and 56 percent was impoverished. Over the twenty years

following the implementation of the SAPs, the gap in income between the wealthiest

Argentines and the poorestwidened by a factor of 400. Economic collapse led to

extreme political uncertainty and a turnover of five presidents in ten days at the end of 2001

(Baer, pp. 44; 47). Furthermore, social indicators pointed to the deeply eroding effects ofeconomic depression. With impoverishment and desperation rampant, crime rates

skyrocketed by an estimated 300%, and other indicators of welfare such as marriage rates

and teenage pregnancy also worsened (Jeter, pp. 37- 39).

The economic breakdown had significant political consequences. The Unin Cvica

Radical (UCR), one of the two major political policies, suffered drastic losses in the next

election. Indeed, these losses were somewhat ironic as although President de la Ra, the

president that notoriously fled the Casa Rosada presidential offices in a helicopter, was a

member of the UCR, his predecessor, Carlos Menm, whose had initially implemented

many of neoliberal policies was largely considered to have led to the crisis, was a Peronist

(The Economist 2008).


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MIGRATION AND MIGRATION POLICY IN ARGENTINA

Now we will examine several topics that are more intimately related to the theme of

this particular investigation: the demographic and political histories of migration in

Argentina.

DEMOGRAPHIC HISTORY OF MIGRATION TO ARGENTINA

Since the arrival of the Spaniards and the beginning of the Conquest, Argentina has

experienced diverse waves of immigration that have formed the demographics of its

population. These migratory waves have also been the subjects of significant national

myths and have been important factors in the conceptualization of national identity.

Statistically, immigrants grew as a proportion of Argentinas total population from

the second half of the nineteenth century through World War I. At the peak of immigration

in 1914, immigrants represented nearly a third of the total population (Pacecca y Courtis

2008, pp. 9-10) and in 1920 they accounted for nearly half of the population of the city of

Buenos Aires (Oteiza and Novick, p. 3). In this period, more than 2.7 million people

immigrated to the new nation (Hines 2010, p. 474).

A'mural'entitled'La'Despedida''The'Farewell''that'recalls'Argentinas'historic'migration.'The'

painting'adorns'the'front'of'the'Our'Lady'of'Immigrants'Church'in'La'Boca,'Buenos'Aires'(photo'

taken'by'author)'


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Since World War I, however, the proportion of immigrants as a proportion of the

total population has gradually lowered. As of the 2010 Census, Argentinas estimated total

population was 40,117,096, and its foreign-born population was 1,800,000 , representing

4.5% of the total population (INDEC 2010). An astounding 60% of the foreign-born

population lives within the metropolitan area of Buenos Aires (CELS 2012, p. 325).

In Argentina there is an oft-quoted saying, the Argentines descended from the

boats, which suggests that all Argentines are descendants of European migrants. The vast

waves of European immigration at the start of the century were unquestionably influential

in the formation of modern Argentina. European migrants made up the vast majority of

migrants to the country during the greatest waves of immigration at the end of the 19th and

early 20th centuries.

0!

5!

10!

15!

20!

25!

30!

35!

1869! 1895! 1914! 1947! 1960! 1970! 1980! 1991! 2001! 2010!

Table'1''

Table 1: Argentina's Foreign Born Population as a Percentage of TotalPopulation (INDEC)

'


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A closer look at the historical statistics of migration to Argentina, however, also

reveals that this phrase leaves out other large populations that have immigrated to the

country throughout its history. Hidden behind the massive waves of European migrants

arriving at the turn of the twentieth century was a comparable small but steady stream of

migrants originating from neighbouring countries. In Argentina, migrants originating from

countries that border the nation are commonly referred to as migrantes limtrofes.

Regional migrants have hovered consistently around 2% of the total population throughout

most of Argentinas history. While the population of migrants from neighbouring countries

has not altered significantly over time as a proportion of the total population, it has come torepresent a much greater proportion of the foreign-born population. In 1914, migrants from

neighbouring countries made up only 8.6% of the foreign-born population. In 2010, they

constituted 68.9% of the foreign-born population.

0!

10!

20!

30!

40!

50!

60!

70!

80!

1869! 1895! 1914! 1947! 1960! 1970! 1980! 1991! 2001! 2010!

Table'2''

Limtrofe migrants (originating from a country that borders Argentina) as apercentage of the total foreign-born population (INDEC)

'


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CensusYear

TotalPopulation

Foreign-Born /

Total pop.

LimtrofeMigrants /Total pop.

Non-limtrofeMigrants /Total Pop.

LimtrofeMigrants /

Total Migrants

1869 1,737,076 12.1 2.4 9.7 19.7

1895 3,954,911 25.4 2.9 22.3 11.5

1914 7,885,237 29.9 2.6 27.3 8.6

1947 15,893,827 15.3 2.0 13.3 12.9

1960 20,010,539 13.0 2.3 10.7 17.9

1970 23,390,050 9.5 2.3 7.2 24.2

1980 27, 947, 446 6.8 2.7 4.1 39.6

1991 32,615, 528 5.0 2.5 2.4 50.2

2001 36,260,130 4.2 2.5 1.6 60.3

2010 40,117,096 4.5 3.1 1.4 68.9

THE HISTORY OF ARGENTINE MIGRATION POLICY

1810 1976

Given that migration has played such as key role in the development of Argentina,

perhaps it is not surprising that migratory policy has figured as a central policy of the

Argentine State since its independence in 1810. Indeed, migration and asylum policy have

been manipulated for political purposes throughout Argentinas political history.

Migration'Statistics'from'the'National'Census,'1869''2010'(INDEC).'


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Traditionally, immigration has been seen as a useful tool in populating the territory

of the country and in procuring the manpower necessary to develop it (Hines 2010, p. 474).

This openness towards migration is evident in famous statements made by important

Argentine statesmen in the nineteenth century. Juan B. Alberdi, whoseBases y puntos de

partida para la organizacin poltica de la Repblica Argentina (Basis and Points of

Departure for the Political Organization of the Argentine Republic) was the basis for the

1853 Constitution, stated, to govern is to populate. Early Argentine leaders were worried

about the sheer expanse of the countrys territory, which they viewed as empty and

wild. Domingo Faustino Sarmiento, the seventh president of Argentina, expressed thisconcern in his essay, Civilization and Barbarity:

The problem that afflicts the Argentine Republic is its extension: the desert thatsurrounds it on all sides the solitude, the under populated areas without a single

human inhabitant, are, in general, the unquestionable limits between one provinceand another. In those areas there is immensity all around: immense planes,

immense forests, immense rivers, the horizon always uncertain, getting confusedwith the earth In the North and the South the savages lie in wait; they wait until

moonlit nights to fall, as if a pack of hyenas, on the cattle that graze in the pasturesand against populations that cannot defend themselves.

A'memorial'to'Juan'Bautista'Alberdi'and'the'tomb'of'Domingo'Faustino'Sarmiento,'both'in'the'

Recoleta'Cemetery.'These'Argentine'founding'fathers'encouraged'migration'from'Europe'as'a'

means'of'developing'and'modernizing'the'Argentine'territory'(photos'taken'by'author)'


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Early Argentine politicians such as Alberdi and Sarmiento saw immigration or,

more specifically, European immigration as a means to populate and thereby gain control

of and develop this vast expense of territory.

In keeping with this positive view of the benefits that migration can provide

towards development, the Argentine Constitution of 1853 has a notably open view towards

migration; the foundational document recognizes the rights of migrants residing in

Argentina, and also obliges the government to encourage European migration in particular

(Oteiza and Novick, p. 4). One of the most significant sections of the Constitution in this

regard is the preamble, which states:

We, the representatives of the people of the Argentine Nation, gathered in GeneralConstituent Assembly by the will and election of the Provinces which compose it, in

fulfillment of pre-existing pacts, in order to form a national union, guaranteejustice, secure domestic peace, provide for the common defense, promote the

general welfare and secure the blessings of liberty to ourselves, to our posterity,and to all men of the world who wish to dwell on argentine soil: invoking the

protection of God, source of all reason and justice: do ordain, decree, and establishthis Constitution for the Argentine Nation. (Argentine National Constitution,available in English at:

http://www.senado.gov.ar/web/interes/constitucion/english.php )

The section of this preamble that has been particularly significant with regards to migration

policy is the designation of rights to ourselvesour posterityand all men of the world

who wish to dwell on Argentine soil (Argentine Constitution); this phrase does not specify

citizens, but rather all men of the world who wish to dwell on argentine soil. Similarly,

sections 14, 18 and 19 outline certain rights to which all the inhabitants of the nation are

entitled. Additionally significant is section 20, which proclaims:

Foreigners enjoy within the territory of the Nation all the civil rights of citizens;they may exercise their industry, trade and profession; own real property, buy and

sell it; navigate the rivers and coasts; practice freely their religion; make wills andmarry under the laws. They are not obliged to accept citizenship nor to pay

extraordinary compulsory taxes. They may obtain naturalization papers residing


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two uninterrupted years in the Nation; but the authorities may shorten this term infavor of those so requesting it, alleging and proving services rendered to the

Republic. (Argentine National Constitution, available in English at:http://www.senado.gov.ar/web/interes/constitucion/english.php)

According to Enrique Oteiza and Susana Novick, this relatively generous view of

migration in the constitution was consolidate[ed] in subsequent decades, with government

decisions that finally opted for a wide opening, marking a clear preference in favor of

European immigration (Oteiza and Novick, p. 4).

The next significant document to regulate migration policy was the Ley

Avellaneda or Avellaneda Law which was sanctioned in 1876. This law remained in

place as the main piece of migratory legislation from 1876 through to 1981. Oteiza and

Novick argue this law formulated a clear policy of open doors, where the image of the

immigrant was associated with progress and civilization (Oteiza and Novick, p. 5).

Nevertheless, while migration has generally been seen in a positive light, the

twentieth century saw the gradual implementation of a series of laws that contradicted the

open sense of the Constitution and Avellaneda Law. Two significant pieces of legislation

were the Residence Law in 1902 and the Law of Social Defense in 1910. These laws were

largely a response to increasing social unrest and labor movements in the country, and were

generated on the assumption that Southern European migrants in particular were bringing

concepts of labor unions and agitation into the country. As such, both laws attempt to

control and eventually repress and expel those immigrants accused of taking part in

movements against the public order. Oteiza and Novick argue that here the image of the

immigrant is that of a being that is potentially dangerous. In particular, these laws were


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notable because they allowed the Executive branch to detain and/or deport migrants

without any judicial intervention (Oteiza and Novick, p. 5).

Ethnic discrimination has also strongly influenced perceptions of migration (Hines

2010, p. 474; Grimson 2005, p. 2); the central embodiment of this discrimination, as noted

by Mara Ins Pacecca and Corina Coutis, has been the predominance of an epic reading

of ancient European migration and a stigmatizing look at Latin American migration

(Pacecca y Coutis 2008, p. 7, authors translation).

As we explored above, from the 1930s onward, Argentina entered into an extensive

period of political turmoil. The political dynamics of a continuous oscillation between

democratic governments and military regimes had a significant impact with regard to

migration policy. Oteiza and Novick detail the pattern of migration policy during this

period:

The excessive legislation sanctioned by military regimes, and the migratory

amnesties put forth by all of the constitutional governments ( declared in thefollowing years: 1949, 1951, 1958, 1964, 1974, 1984, 1992) confirm the historicaltendency that shows military governments legislating through substantive laws

(which continue to in effect after the return to a democratic regime), and thedemocratic governments forming decrees of exception (amnesties), because they

are unable to sanction a new law (Oteiza and Novick, p. 6).

Despite efforts to the contrary, therefore, the main piece of migratory legislation for

much of Argentine history remained the Avellaneda Law, with executive administrative

decrees and amnesties marking the distinct perspectives of different regimes.

THE MILITARY JUNTA AND THE VIDELA LAW

In 1981, under the 1976 - 1983 military dictatorship, a new and restrictive

migration policy, Migration Law 22.439, was passed. This law is now known colloquially


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as the Ley Videla Videla Law - because it was approved under the authoritarian

government headed by General Jorge Rafael Videla. The law was intended to provide a

single and global text that would legislate all aspects of the migratory phenomenon. This

new legislation repealed the Avellaneda Law, thereby formally breaking with the

liberalist tradition in Argentine migration policy (Oteiza and Novick, pp. 6-7). Although

the liberal precepts of the Constitution and the Avellaneda Law had slowly been eroded by

the implementation of laws such as the Residence Law, Law of Social Defense, and the

legislation approved by a series of military dictatorships, the Videla Law codified a

restrictive policy unlike any previously seen in the country.

Under the dictatorship, migration was seen as a national security issue and policing

concern to be dealt with by the Minister of the Interior in the executive branch. The regime

thereby adopted a hardline approach to dealing with undocumented migrants in the country.

Additionally, as the authoritarian regime was highly nationalistic, the construction of

certain migrant populations as outsiders assisted in the construction of a narrow

conception of national identity, particularly in regards to ethnicity (Novick 2005, p. 7;

Ceriani Cernadas and Morales 2011, p. 9; Oteiza and Novick, p. 8).

Under this new legislation, there were few legal avenues for immigration, and

particularly few options for those immigrants who originated from neighboring countries

(Hines 2010, p. 472; 475). The Minister of the Interior had the ultimate power to interpret

the categories of admission and to establish entry requirements (Oteiza and Novick pp. 7-

8). The policy thereby resulted in the growth of a large population of undocumented

immigrants, whose lack of legal status left them in a state of particular vulnerability

(Pacecca y Courtis 2008, p. 42). Building off of legislation passed in the previous military


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dictatorship (1966 to 1970), the Videla Law forbid undocumented foreigners from

participating in paid tasks or activities. Whats more, public employees (including the

employees of public hospital and the educational system) as well as certain business people

(such as the owners of hotels), were actually required to denounce any person they should

find to be lacking documentation (Oteiza and Novick, p. 7).

The law gave the Minister of the Interior power of deportation in many cases,

without judicial oversight particularly for those foreigners who had been found guilty of a

crime that had a penalty of more than five years in prison, and those who had been accused

of participating in activities that affected social peace, national security, or public order.

Those migrants perceived to fall into either of these categories could be deported regardless

of their migratory status (Oteiza and Novick, p. 7). One can imagine the significance of

these two possibilities for deportation under the Process of National Reorganization.

Despite the restrictive policies of the Videla Law, the full name of the law was the

General Law of Migration and the Promotion of Immigration, and the legislation did

express desire to increase the population by attracting foreigners. Building off of a long

history of preference for European migrants, however, the law was particularly interested in

attracting migrants of European descent. (Oteiza and Novick, pp. 6-7).

1983 2003: DICTATORIAL NORMS IN DEMOCRACY

Perhaps the most surprising aspect of the history of the Videla Law is not its

initial passage, but rather its endurance after the return to democracy. Although many laws

were changed as a part of the transition following the fall of the junta most significantly

with a legislative overhaul in 1994 the Videla Law remained effective until the passage of


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the 2004 Migration Law (Hines 2010, p. 472). The law therefore outlived the authoritarian

period and was maintained through re-democratization, taking nearly 20 years to be

overturned. In this period, migrants continued to be highly stigmatized and manipulated as

the object of a political agenda.

In the two decades between 1983 and 2004, subsequent democratic administrations

modified the way that the Videla Law was implemented through executive decrees and the

use of amnesties. This pattern is similar to that already observed in the period between the

1930s and 1980s, when the alternation of democracy and dictatorship saw new laws

implemented by the dictatorships and emergency amnesties passed by democratic regimes.

Ral Alfonsn was the first democratically elected president in Argentina after the

1976 1983 military dictatorship. His administration was dominated by many issues other

than migration, including the trial of former military leaders, processes of transitional

justice and escalating inflation. The year after Alfonsn gained power, his government

launched an amnesty. The only law passed during the Alfonsn administration that dealt

expressly with migration was the 1988 Law 23.564, which served only to modify the

executive regulation of the Videla Law. For example, it adjusted fines for various

violations (Oteiza and Novick, pp.4; 8).

After Alfonsn, Carlos Menm was elected to the presidency. The Menm years

were marked by dual outlooks towards migration. On the one hand, in Menms first termat the beginning of the 1990s, the administration seems to have taken a realist approach to

migration issues, declaring an amnesty in 1992. As Menms second term unfolded,

however, high-ranking public officials in various offices began to use increasingly


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xenophobic rhetoric. Alejandro Grimson recounts that in the most extreme moments at the

close of the twentieth century there was a systematic campaign of migrant detention

(Grimson 2005, p. 9). One common interpretation of this rhetoric and practice is that as

neoliberal policies implemented by Menms administration began to show signs of failure

in what would ultimately become the 1999-2002, migrants were used as a scapegoat to

deflect negative attention.

Oteiza and Novick analyze the Menm administrations practices with regards to

migration in great depth, in their article, Poltica migratoria y derechos humanos en un

contexto de ajustes y reformas neoliberales. Argentina: 1989 1999 (Gobierno de

Menm). They observe that during the 1990s, Argentina was going through significant

social changes. As previously noted, the demographic composition of the foreign-born

population had altered. European migration to Argentina was way down as compared to the

beginning of the twentieth century, while migration from neighboring countries remained

consistent. In addition, other migratory groups, including Peruvians, Chinese, Taiwanese

and Koreans, began to have a more significant presence. Finally, emigration from

Argentina had increased. What had begun as political emigration under the dictatorship was

now becoming an economic emigration (Oteiza and Novick, p.2).

The Videla Law remained in power throughout the Menm administration. When

the Constitution was reformed in 1994, no changes were made to the articles that related to

migration policy. Several international human rights treaties adopted at the time of the

constitutional reform. Under Argentine law, these treaties hold constitutional weight.

(Oteiza and Novick, pp. 4-5).


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In the notorious height of the economic crisis, when Argentina passed through five

presidents in merely a week, migration was hardly a central concern. Indeed, for all that

migrants had been a focus as the crisis escalated, when the worst of the crisis hit, this

xenophobic rhetoric faded in the face of vast and deep-reaching economic meltdown.

THE KIRCHNERS: A NEW PARADIGM IN MIGRATION AND ASYLUM POLICY

As we have seen, the replacement of theLey General de migraciones y Fomento de

la Inmigracin No. 22.439by the Law 25.871,Ley de Migraciones(see Argentine Republic

2004) was only one in a long history of transitions in Argentine migratory policy (Pacecca

y Courtis 2008, pp. 41-43; Hines 2010, pp. 479 - 480). Historically, migration policy in

Argentina has reflected societal trends and dominant socio-political currents.

Compared with the Videla Law, the new Migration Law represents an enormous

paradigm shift because of its progressive character. Of utmost importance, it recognizes the

right to migrate as a human right (Argentine Republic 2004, art. 4; Novick 2005, p. 15):

The right to migrate is essential and inalienable to each individual and the

Argentine Republic gaurentees this right on the basiss of the principles of equality

and universality (Argentine Republic 2004, art. 4)

In its 2012 Annual Report, the Centro de Estudios Legales y Sociales (CELS) a

well-respected human rights NGO in Argentina noted that the imposition of the new

Migration Law significantly changed the form of regulating the rights of migrants in

Argentina. The CELS notes that with the passage of the 2004 Migration Law, Argentina

moved from the model of police management with regards to [migration], founded in the

doctrine of national security as enshrined in the Videla Law to a model of


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management that recognizes migration as a human right and, whats more, obliges the State

to establish mechanisms to regularize migration, guarantees access to the judiciary in all

detention or deportation proceedings and eliminates differentiation between nationals and

foreigners with regards to access to rights (CELS 2012, p. 326).

Whereas under the Videla Law, detention and deportation figured prominently as

responses to undocumented migration, under the new law, the focus shifted to

regularization, and the use of detention is very restricted. While before were few legal

avenues for immigration, access to social services was restricted, and neither the protection

of migrants rights nor the prevention of discrimination was mentioned, under the 2004

Migration Law, there are more legal avenues for migration, particularly for migrants from

neighboring countries, constitutional rights and human rights are extended to all

immigrants in the country, including rights to social services, education, justice,

employment social security, and family reunification (Argentine Republic 2004, art. 5;

Ceriani Cernadas and Morales 2011, p. 11). Additionally, the law grants all migrants

regardless of their legal status the right to education, health and social assistance

(Argentine Republic 2004, art. 7-8; Hines 2010, p. 481; Pacecca y Courtis 2008, pp. 44

47; CELS, p. 3). Barbara Hines notes that there was even a semantic transition between the

laws, with the rejection of the term illegal in favor of irregular (Hines 2010, p. 490).

The fulfillment of the 2004 Migration Law came with the publication of its

administrative regulation in the form of an executive in 2010. This decree established more

concrete guidelines for the implementation of the law (Ceriani Cernadas y Morales 2011, p.

6; CELS 2010, p. 1) (see Argentine Republic 2010). In 2007, Argentina ratified the

International Convention on the Protection of the Rights of All Migrant Workers and


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Their Families, and the National Ombudsman created the Migrant Commission, which

provides legal aid (CELS 2012, pp. 327 - 328).

REFUGEE!LAW!!

As a special component of migration policy, the topic of refugee law is of particular

relevance to the discussion of authoritarian legacies because many members of society

and indeed, many politicians in Argentina were themselves exiles during the authoritarian

period. In violation of international norms and despite the fact that the country had ratified

the international Refugee Convention in 1951 and its additional protocol in 1967 (Pacecca

and Courtis, p. 48), the Argentine military junta along with contemporary dictatorial

powers in neighboring states did not respect international asylum practices. The

Southern Cone dictatorships during this period were known to return asylum seekers to

neighboring regimes as component of the notorious cooperative Operation Condr.

The first change in refuge policy came immediately following the return to

democracy, as in 1984 the country created the CEPARE, or the Committee of Eligibility

for Refugees, the group formally charged with the evaluation asylum cases (Pacecca and

Courtis, p. 48). Argentina was part of a greater regional movement towards better

protection of refugees and asylum seekers, as exemplified by treaties such as the

aforementioned Cartagena Declaration on Refugees (1984) and the Mexico Plan of Action

(2004), to both of which Argentina is a party.

In 2006, Argentina passed the Ley 26.165,Ley General de Reconocimiento y

Proteccin al Refugiado (Law of Recognition and Protection of Refugees). This law came

as the culmination of steps taken throughout the re-democratization period to better protect


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the rights of refugees and asylum seekers in Argentina. It formally codifies rights for these

populations and legally establishes the process by which asylum cases are evaluated

(Pacecca and Courtis, p. 48). The Refugee Law establishes the CONARE, or National

Commission for Refugees, which is charged with deciding on asylum cases and made up of

five representatives of different government ministries and two members that have a voice

but not a vote, UNHCR and a domestic NGO (Pacecca and Courtis, p. 48). The committee

uses as a basis for evaluating cases the 1951 Refugee Convention, the 1967 Protocol, and

the Cartagena Declaration on Refugees (Pacecca and Courtis, p. 48).

As of April 2013, the executive decree providing administrative regulation for the

Refugee Law had still not been released. When the National Ombudsman created the

Migrant Commission in 2007, they also created the Commission on the Assistance and

Protection of Refugees, which gives refugees legal counsel when they interact with the

judiciary system (CELS 2012, p. 328). The Commission also has increasingly taken on

different areas of social support for the refugee population. The exact nature of this support,

however, is one of the sticking issues in the process of forming the executive decree and

thus has not yet been formally codified.

THE FORMATION OF A LAW

In order to fully understand what factors influenced the passages of these two laws,

it is important to consider how these laws came to be. In his book, Migration: A Human

Right, Senator Gustinianni, the socialist legislator who proposed the new Migration law,

explains that the Commission on Population and Human Resources of the Chamber of

Deputies began to focus on reforming the migration law as its principal task since he took

over its leadership in 2000. Senator Gustinianni remembers, We were conscious that if for


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two decades of democracy the Argentine Parliament had not sanctioned a new migration

law it was not because the law was a forgotten question or because the legislature

considered it unimportant. He observes that there had been many positive attempts that

got stalled along the way because in debates on migration policy outdated, xenophobic,

discriminatory and authoritarian tendencies routinely arose. As we have discussed, the

question of migration policy had long been a controversial one in Argentina. Part of the

reason that historically migration policy has more often been modified through decrees or

administrative regulations rather than through new legislation was that the creation of new

legislation represented an enormous huge political challenge. (Gustinianni 2004, p. 14).The 2004 Migration Law was passed as a closed legislation without debate in the Congress.


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CHAPTER 3: LITERATURE REVIEW

Despite Argentinas long history of migr

Documents

Constructing Migrants’ Rights