Hobbes on Law

Vol. 16 No.1 (January 2006), pp.71-75

MOBILE PEOPLE, MOBILE LAW: EXPANDING LEGAL RELATIONS IN A CONTRACTING WORLD, by Franz von Benda-Beckmann, Keebet von Benda-Beckmann and Anne Griffiths (eds). Burlington, VT: Ashgate Publishing Company, 2005. 344pp. Hardback. $114.95/£60.00. ISBN: 0-7546-2386-6.

THE CONSOLIDATED ASYLUM AND MIGRATION ACQUIS: THE EU DIRECTIVES IN AN EXPANDED EUROPE, by Peter J. van Krieken. The Hague: T.M.C. Asser Press, 2005. 345pp. Paperback. $65.00/£38.00. ISBN: 90-6704-180-7.

MIGRATION AND REFUGEE LAW: PRINCIPLES AND PRACTICE IN AUSTRALIA, by John Vrachnas, Kim Boyd, Mirko Bagaric, Penny Dimopoulos. Melbourne: Cambridge University Press, 2005. 362pp. Paperback. US$95.00/£45.00/AU$79.95. ISBN: 0521618088. Adobe eBook. US$76.00. ISBN: 0511111673.

Reviewed by Samuel S. Stanton, Jr. Visiting Assistant Professor, Department of Political Science, University of Wisconsin-Stevens Point, sstanton@uwsp.edu

These three books address an important area of growing concern for scholars and students of both international law and human security—the international movement of people across borders and within states. These works consider the movement of people both of free choice as migrants (legal and illegal) and by necessity (refugees).

In MOBILE PEOPLE, MOBILE LAW (edited by Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Anne Griffiths), the reader receives an anthropological view of how mobility affects and is affected by law, and how the mobility of legal ideals affects people in areas of the world where those ideas did not originate. The introduction to the collection, written by the editors, lists the focus as two-fold (in keeping with the title). One is mobility of the law based on globalization forces. The question is what happens when norms of globalization, which in the parlance of most of the authors means Western ideas, laws, and values, encounters national and local law and is applied to specific situations (p.2). The second focus is on the mobility of people and organizations as actors in the process of making law mobile.

For some political science and legal scholars there will be a degree of linguistic confusion due to the fact that this work is a compilation of essays by scholars who are primarily anthropologists. For instance, what the authors refer to as customary law is generally referred to in political science as social practices, religious practices, or social traditions. The point remains the same—religious organizations, societal groupings (such as ethnic groups and tribes) create practices to which members adhere, and these practices often clash with modernization and with the political laws of the state.

While the focus is commendable, what primarily occurs in this work is little [*72] more than use of individual stories to throw darts at the influence of globalization on individuals and groups of people in developing countries. While many of the essays lend themselves more to sociological study, two essays stand out for application to political science and international law. One is Chapter 7, by Melanie Wiber, assessing the effectiveness of epistemic communities versus local innovation in the creation of law regulating access and economic gain from natural resources. The second is Chapter 11, by Sally E. Merry, looking at how international agreements are generated.

Wiber’s essay considers how the Canadian government adopted the notion of epistemic communities, best understood through the ideas expressed by Haas (1992), to the issue of fishery management in Nova Scotia. Wiber’s assessment is that the epistemic community that was created was narrowly focused on two issues: economics and quotas. Wiber also faults the creation of policy based on recommendations of the epistemic community, because the community did not include participation of the fishermen. What Wiber’s essay does is give us pause to consider the negative ramifications when an epistemic community format is applied to policy development, particularly when the epistemic community is not well defined.

Merry presents a quite lucid account of how international agreements are arrived at by consensus of diplomats and represent a disjuncture from what most states (and many individuals) would actually prefer to see created. She refers to this as “wordsmithing . . . to produce a single document despite these gaping disparities in views” (p.221). I would recommend this essay highly to any students of international organizations, and particularly to those who engage in interactive diplomacy simulations, such as Model United Nations or Model Arab League.

One other essay of note is Marie-Claire Foblet’s examination of dual citizenship and freedom of movement in Europe and their affect on judicial decision-making (Chapter 15). Foblet’s essay considers the problems of definition and terminology and their role in perfecting “choice-of-law” techniques in family law and their application to the legal position of migrant Muslim females.

Overall, the essays are well-written and represent the results of extensive field research. Unfortunately, it seemed at times as if the researchers crossed the line of objective observation and became too sympathetic to the subjects of their observation. As noted in the preceding paragraphs several of the essays should be utilized in studies of globalization and international law, but many lack strong objectivity and diminish the overall quality of the volume.

THE CONSOLIDATED ASYLUM AND MIGRATION ACQUIS is Peter J. van Krieken’s attempt to create a user manual regarding migration and refugee law in the European Union. As such, this book should be standard reading for migration and refugee law students who intend to practice in the EU, as well as for judges and agents of government in [*73] the EU who deal in any way with these issues. Elegant in its simplicity, this book looks at each of the major EU Council documents that set standards of practice. Included are the criteria and the detailed rules and an explanatory section for each.

The book is divided into three parts. The first part addresses refugees (asylum seekers). The Dublin Criteria and Dublin Rules are considered, as are standards for reception of asylum seekers, for granting and withdrawing refugee status, for qualification of individuals as refugees, and for giving temporary protection to individuals. A legal definition of refugee in the EU is understood according to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

The second part of the work focuses on migration. Individual sections look at long-term residency, pursuit of economic activities, students, volunteer service workers, victims of trafficking, and family reunification. Also considered are the provision of social security for migrants and the mutual recognition of decisions to expel migrants by other members of the EU. Finally, part three looks at legislative and communications issues within the EU, with particular emphasis on how these issues create definitions and stem from the 2004 EU Constitution.

Particularly useful to non-legal scholars who may use this book is the discussion of the Schengen visa and Schengen Information System produced by the Schengen Agreement (1985) and Schengen Convention (1990) and incorporated into the EU by the Amerstdam Treaty in 1999 (pp.11-15). For those unfamiliar with the idea of the Schengen Agreement and Convention, it represents the abolition of internal border controls and creation of a single external border for the control of transnational travel. A single visa with common rules was adopted to allow free movement of persons within the signatory states (p.11).

van Krieken also addresses some arguments made in favor of and against allowance of immigration to Europe. Visions for the future, the ageing of Europe, population size, availability of jobs, agricultural issues, manufacturing, remittances, the need for high-skilled labor, and trust within the society, are among the issues addressed. However, these topics are only briefly touched upon in the introduction and are not fully developed. Nonetheless, if one looks at the development of criteria and rules regarding migration and refugee status in the EU, it is not a great stretch to see the interplay of different opinions about these issues.

Overall, van Krieken has made a very informative and user-friendly contribution. He does not attempt to make argumentative examination of the rules, only to trace the rules, and explain their genesis. The work is thorough and provides a reference tool that should be welcome on the shelves of students, academics, practitioners of the law, and agents of government who work with migration and refugee issues in the EU. [*74]

John Vrachnas, Kim Boyd, Mirko Bagaric, and Penny Dimopoulos provide an informative and practical guide to migration and refugee law in Australia in MIGRATION AND REFUGEE LAW: PRINCIPLES AND PRACTICE IN AUSTRALIA. The organizational style is, for the American reader, more like that of a technical manual than a scholarly work. However, I assure readers that the work is quite scholarly. In keeping with the sub-title, in each section the authors address the statutes and related case law. The writing is clear, and explanations of statutes and cases are well constructed.

The authors of MIGRATION AND REFUGEE LAW trace the historical origins of migration laws and explain the relevance of this history to the modern immigration debate. They convey an understanding of current migration law by explaining the statutes and assessing the influence of case decisions on the process of granting immigration visas and differentiating various classifications of migration and refugee status.

This first half of the book will be useful to students of law and to academic study of court decisions. I believe this book will be a welcome addition to the readings for a wide variety of courses on Australian law and on migration law in general.

For students of human security issues, the second half of MIGRATION AND REFUGEE LAW will be of great interest. Here the authors define current international law (the 1951 Convention and 1967 Protocol) regarding refugees, and assess the Australian statutes that enable this law. Then in a break with the pattern created earlier in the book, they argue for a “fundamental re-think” in determining qualifications for refugee status.

The 1951 Convention and 1967 Protocol basically qualify individuals for refugee status if they are at risk of persecution by the government of their country of origin for political opinions, religious beliefs, nationality, race, or membership in a particular social group. The belief that one is at risk of persecution has to be well-founded. In short, the authors argue that this definition is based on Cold War calculus and should be reconsidered.

The authors propose that a person be categorized as a refugee based on basic concerns of human life (food, water, shelter) and on whether a person has well-founded fear of a violation of physical integrity or personal liberty (p.317). This definition is based a deontological versus consequentialist approach to understanding universal moral standards. This results in the development of a hierarchical understanding of human interests which places greater importance on the necessities of life and human liberty than on politics, religion and social classifications. The presentation is logically organized and provides a framework for developing arguments in ongoing studies in human security.

MIGRATION AND REFUGEE LAW might seem on the surface to be targeted primarily at legal students and Australian constitutional scholars, but [*75] the last half of the book has universal appeal. I would recommend at least this part as an addition to any course focusing on human rights, particularly refugee issues.

A common stream of thought runs through these three divergent books. In her essay in MOBILE PEOPLE, MOBILE LAW, Merry discusses the creation of international agreements as consensus that does not meet the desires of most countries. The documents on asylum and migration in the EU, organized by van Krieken, exemplify the international agreement that results from this process. As pointed out in MIGRATION AND REFUGEE LAW, several leaders in the EU expressed desires in the late 1990s and early 2000s for revamping the asylum rules to be more in line with modern realities than were the rules under the 1951 Convention and the 1967 Protocol (p.175). However, if one reads the documents as passed by the EU Council, asylum is still based broadly on the 1951 Convention and 1967 Protocol, rather than on the greater concern for human needs expressed in Chapter 18 of the Vrachnas, Boyd, Bagaric, and Dimopoulos book.

Collectively these works develop an informed statement about the history, process of development, implementation and application of migration and refugee law. Considering them separately, however, two of the works are clearly more important to legal and political science study of these issues.

REFERENCES:

Haas, Peter M. 1992. “Introduction: Epistemic Communities and International Policy Coordination.” 46 INTERNATIONAL ORGANIZATIONS 1-35.

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