New Immigration Articles from SSRN

Here are some new immigration articles from the Social Scioence Research Network (www.ssrn.com):

“Human Trafficking Violates Anti-Slavery Provision: Introductory Note to Rantsev v. Cyprus and Russia – European Court of Human Rights” International Legal Materials, Vol. 49, 2010 Vermont Law School Research Paper No. 10-36 STEPHANIE FARRIOR, Vermont Law School.  ABSTRACT:  In a landmark judgment, the European Court of Human Rights ruled unanimously in Rantsev v. Cyprus and Russia that human trafficking violates Article 4 (prohibition of slavery, servitude and forced labor) of the European Convention on Human Rights. Although the Court had held in an earlier case that trafficking of a child domestic worker fell within the scope of Article 4, this is the first case in which it has addressed sex trafficking under that provision. This Introductory Note, which will appear in Volume 49 of International Legal Materials, provides an overview of the case and comments on the significance of the judgment.

 “Constraint Through Delegation: The Case of Executive Control Over Immigration Policy” Duke Law Journal, Vol. 59, p. 1787, 2010 NYU School of Law, Public Law Research Paper, Forthcoming Migration & Immigration: Trends & Critical Policy Issues Paper CRISTINA RODRIGUEZ, New York University – School of Law.  ABSTRACT:  This Article proposes recalibrating the separation of powers between the political branches in the context of their regulation of immigration law’s core questions: how many and what types of immigrants to admit to the United States. Whereas Congress holds a virtual monopoly over formal decisionmaking, the executive branch makes de facto admissions decisions using its discretionary enforcement power. As a result of this structure, stasis and excessive prosecutorial discretion characterize the regime, particularly with respect to labor migration. Both of these features exacerbate pathologies associated with illegal immigration and call for a structural response. This Article contends that Congress should create an executive branch agency, marked by indicia of independence, to set labor visa policy – an avenue increasingly contemplated by reformers. Though it may seem counterintuitive, delegation of greater authority can help constrain executive power by substituting a transparent process, subject to monitoring, for decisionmaking that occurs hidden from view. Delegation can also help overcome limitations in the legislative process that contribute to the current regime’s limitations, making immigration policy more efficient and effective. The Refugee Act of 1980 provides a parallel helpful to thinking through what it would mean to delegate ex ante admissions power to the executive.

“Reclaiming the Immigration Constitution of the Early Republic” Virginia Law Review, Vol. 96, No. 1, 2010 Northwestern Public Law Research Paper No. 10-13 JAMES E. PFANDER, Northwestern University School of Law.  THERESA WARDON, affiliation not provided to SSRN.  ABSTRACT:  In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to individuals who have already arrived in this country. The paper also argues against Congress’s practice of adopting private legislation. These contentions, in turn, provide the foundation for a criticism of the so-called public rights doctrine and its use to justify restrictions on the judicial role.

“Development Actors and Protracted Refugee Situations: Progress, Challenges, Opportunities” in PROTRACTED REFUGEE SITUATIONS: POLITICAL, HUMAN RIGHTS AND SECURITY IMPLICATIONS, G. Loescher, J. Milner, E. Newman, G. Troeller, eds., New York: United Nations University Press, 2009 MARK MATTNER, McGill University – Department of Political Science.  ABSTRACT:  This paper discusses the reception of “relief to development” approaches among development actors, and the headway those actors have made in addressing the socioeconomic, security and political dimensions of conflict. The paper’s main argument is that the role of development actors in conflict situations goes far beyond forging operational partnerships with relief actors. While efforts to strengthen linkages between relief and development support should be further strengthened, such partnerships offer only a starting point in efforts to bring development assistance to bear in achieving genuinely durable solutions. The role of development actors encompasses supporting overall efforts at conflict prevention, mitigation and post-conflict reconstruction. With reference to protracted refugee situations, this translates into ensuring that the specific needs of refugees are met and that they have access to the range of resources made available to local populations across development portfolios. The paper is structured as follows: First, it offers a review of approaches to development assistance in transition environments. Second, discusses the involvement of development actors in security, human rights and peace support activities. Third, it considers institutional barriers that impede effective interventions. Finally, it submits a set of policy suggestions.

“Speaking Across Borders: The Limits and Potential of Transnational Dialogue on Refugee Law in Ireland” TRANSNATIONAL JUDICIAL DIALOGUE IN REFUGEE LAW, Guy Goodwin-Gill, Helene Lambert, eds., Cambridge University Press: 2010 SIOBHAN MULLALLY, University College Cork.  ABSTRACT:  Refugee Law in Ireland has developed rapidly over the last decade. This chapter highlights the extent to which lawyers, judges and policy-makers at the forefront of developing Irish law in this field have benefited from the greater availability of comparative and international law in recent years. As the cases explored in this chapter highlight, refugee law in Ireland is marked by significant transnational judicial dialogue. The adoption of the ECHR Act 2003 has further expanded the scope of this dialogue allowing for increasing reference to the practice of the Strasbourg Court and the UK Courts in matters of fundamental rights. However, it is also clear that the scope of this dialogue, and its potential to contribute to a European consensus on key concepts of refugee law, is limited. Constraining further harmonization of refugee law across EU member states is a common law / civil law divide that has limited the scope of transnational judicial dialogue in Ireland, and in other Member States. This is further compounded by a strict dualist approach to international law adopted by Irish courts. This chapter explores a series of rational and cultural factors that underpin the nature of judicial dialogue on refugee law in Ireland, drawing on selected cases from the superior courts and the published decisions of the Refugee Appeals Tribunal.

 “International Refugee Law” in THE LIBRARY OF ESSAYS IN INTERNATIOINAL LAW, Ashgate, Forthcoming HELENE LAMBERT, University of Westminster – School of Law.  ABSTRACT:  The essays selected and reproduced in this volume explore how international refugee law is dynamic and constantly evolving. From an instrument designed to protect mostly those civilians fleeing the worse excesses of World War II, the 1951 Refugee Convention has developed into a set of principles, customary rules, and values that are now firmly embedded in the human rights framework, and are applicable to a far broader range of refugees. In addition, international refugee law has been affected by international humanitarian law and international criminal law (and vice versa). Thus, there is a reinforcing dynamic in the development of these complementary areas of law. At the same time, in recent decades states have shown a renewed interest in managing migration, thereby raising issues of how to reconcile such interests with refugee protection principles. In addition, the emergence of concepts of participation and responsibility to protect promise to have an impact on international refugee law.

KJ