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    The Human Rights of Refugees: The Italian Solution Sara Cuko

    Msc Development and International Relations

    The Human Rights of Refugees: the Italian Solution

     ththAalborg University, 10 Semester, 4 January 2010

    1 Sara Cuko Master Thesis - DIR

    The Human Rights of Refugees: The Italian Solution

    Abstract

    This work is an analysis of the refugee protection rights within Italy as a country of asylum. Italy constitutes a controversial case within the European Union as it lacks a comprehensive asylum law. Provisions and norms regulating the asylum regime in Italy are contained, as ad-hoc paragraphs, within migration laws or in decrees that apply European guidelines on minimum provisions and rights to asylum seekers and refugees. Historically, the strategy of the Italian public sector has been in fact to adjust entry and reception policies to what it perceives as ―emergency situations‖, in the event of ―crisis‖ such as the arrivals of large influxes of humanitarian refugees in recent years. Its controversial measures against asylum seekers, like the recent bilateral agreement with Libya to halt the flow of ―illegal migrants‖ setting off from its costs, is well know

    internationally. Conversely, the disadvantaged situation of in-country refugees and beneficiaries of other forms of international protection has not attracted the same attention.

    We start with the assumption that the quest of finding a permanent solution for refugees should lie in human rights principles, to which the international community has committed. We explore the international refugee regime and the international human rights regime. On this background, we use empirical data to document rights abuses that take place within the framework of national law and municipal provisions in Italy. Such measures are denying any aspiration of integration. Refugees remain in a state of subordinate inclusion with reduced access to economic, social and cultural rights such as residency, housing and work.

    With the help of a constructivist approach to International Relations we investigate the link between human well-being and politics, by taking into consideration refugees identity in the Italian society and refugees claim-making processes. We map the discourses of refugees rights enacted by several actors that participate in the debate of refugee protection: refugees, Institutions, NGOs, the UNHCR and the catholic church. By evidencing the values, norms and rules they represent we propose a refugee identity based on humanity and the human rights they should be entitled to, but also based on their ability and will to be empowered to participate in finding permanent solutions for their dignity within the receiving society.

    We identify the importance of the creation of networks which involve all actors nationally, and refugees communities internationally. These could become the platform for the creation of a discourse of refugee integration centred in the inclusion of economic, social and cultural rights as part of States protection obligations towards in-country refugees and beneficiaries of international protection.

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    The Human Rights of Refugees: The Italian Solution

    Table of Contents

    INTRODUCTION ..................................................................................................................................................... 5 PROBLEM FORMULATION ......................................................................................................................................... 7 STRUCTURE OF THE PROJECT .................................................................................................................................... 7 1. REFUGEES AND MIGRANTS IN ITALIAN ECONOMY, POLITICS AND SOCIOLOGY. .........................10 2. CONCEPTUALISING THE REFUGEE IN INTERNATIONAL RELATIONS ...............................................14 3. PRINCIPLES OF THE CURRENT REFUGEE REGIME.................................................................................16 3.1 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS ...........................................................................................17 3.2 THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES .......................................................................18

    3.2.1 The Principle of non-refoulement ..............................................................................................................20

    3.2.2. Economic Social and Cultural Rights .......................................................................................................21 3.3 THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES STATUTE AND MANDATE .......................................22 3.4 HUMAN RIGHTS AND REFUGEES ........................................................................................................................23

    3.4.1 The Universal Declaration of Human Rights as it applies to refugees ........................................................25

    3.4.2. The International Covenant on Civil and Political Rights and the International Covenant on Economic,

    Social and Cultural Rights (1966) .....................................................................................................................25

    3.4.3 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

    Punishment (1984) ............................................................................................................................................27

    3.4.4 A European treaty: the Convention for the Protection of Human Rights and Fundamental Freedoms (1950)

     .........................................................................................................................................................................27 4. EUROPE: TOWARDS A COMMON EUROPEAN ASYLUM SYSTEM..........................................................29 4.1 EUROPEAN DIRECTIVE 2004/83 AND 2005/85 ....................................................................................................30 4.2 THE DUBLIN CONVENTION AND THE DUBLIN REGULATION ................................................................................31 4.3 THE EXTERNALISATION OF REFUGEE PROCESSING AND PROTECTION ...................................................................32 4.4 THE CURRENT EU AGENDA AND EFFECTIVE PROTECTION ....................................................................................33 5. THE ITALIAN ASYLUM SYSTEM ...................................................................................................................35 5.1 LAW 39/1990, ―THE MARTELLI LAW ................................................................................................................36 5.2 LAW 40/1998, ―THE TURCO-NAPOLITANO LAW ...............................................................................................37 5.3 LAW 189/2002, ―BOSSI-FINI ............................................................................................................................37 5.4 INCORPORATION OF EUROPEAN DIRECTIVES .....................................................................................................38 5.5 LEGGE SICUREZZA (SECURITY PACKAGE), 2009.................................................................................................38 5.6 THE AGREEMENT WITH LIBYA ..........................................................................................................................39 5.7 INTEGRATION FACILITIES AND ASSISTANCE TO REFUGEES ..................................................................................40 5. 8 MILAN .............................................................................................................................................................42 5.9 TURIN ..............................................................................................................................................................42 6. THEORETICAL AND METHODOLOGICAL PERSPECTIVES ....................................................................43 6.1 DATA PRESENTATION AND QUALITATIVE ANALYSIS ...........................................................................................46 7. ANALYSIS OF EMPIRICAL DATA ..................................................................................................................47 7.1 URBAN REFUGEES AND ECONOMIC, SOCIAL AND POLITICAL SITUATION IN MILAN ...............................................47 7.2 MILAN: PAULOS AND PIAZZA OBERDAN ............................................................................................................48

    Rights violations ...............................................................................................................................................49

    Political Will: economic interests, racism and fascism .......................................................................................51

    Networks and support........................................................................................................................................53

    Action: refugee agency or political activity ........................................................................................................56 7.3 TURIN MUNICIPALITY: SYNERGIES BETWEEN INSTITUTIONS AND NGOS ..............................................................58 7.4 TURIN: BEST PRACTICE .....................................................................................................................................59

    Strengthening capacities at local level ...............................................................................................................59

    Residency rights and Integration .......................................................................................................................61 7.5 UNHCR ITALY: ECONOMIC AND SOCIAL RIGHTS OF REFUGEES ...........................................................................63 7.6 SUMMARY OF MAJOR FINDINGS .........................................................................................................................65 8. DISCUSSION: THE REFUGEE LABEL AND THE REAL REFUGEE NEEDS .............................................67

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    The Human Rights of Refugees: The Italian Solution

    8.1 THE PHYSICAL GAP IN THE INTERNATIONAL SYSTEM INHABITED BY REFUGEES: BETWEEN BORDERS .....................68 8.2 REFUGEES IN IR: THE IDEATIONAL GAP THEY OCCUPY ........................................................................................69 8.3 REFUGEE RIGHTS ..............................................................................................................................................70 8.4 REFUGEES IDENTITY .........................................................................................................................................73 9. CONCLUSIONS...................................................................................................................................................76 BIBLIOGRAPHY ....................................................................................................................................................78

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    The Human Rights of Refugees: The Italian Solution

    Introduction

    The experience of refugees is a multifaceted life-cycle endurance for those individuals who are forced to migrate from their places of origin, and search protection.

    Since the 1990s the arrival of increasing numbers of asylum seekers has become a visible and contested phenomenon in European countries. The crossing of borders to flee persecutions, feared or suffered, creates links with European countries and blurs geographical, political and cultural borders that exists between states. In this historical moment of globalised liberal economies, regional interests and sovereign prerogatives of States, the link between countries from which people flee and countries in which these people flee to enjoy dignity and peace on the basis of the rights enshrined in international legislation, signed and ratified by Western countries, seem to be another cause of persecution. Governments and political interests in the rich, Western countries, are increasingly depriving the term ―refugee‖ from its core significance of protection based on humanitarian grounds as it becomes intertwined with migration issues.

    Refugees, according to the 1951 UN Refugee Convention are entitled to international protection, and asylum seekers, according to Art. 14 of the UN Declaration of Human Rights (Universal Declaration) have to be considered refugees until the final determination of their status. Most importantly they should not be returned to their country of origin according to the principle of non-

    1refoulement.

    National and Regional politics aimed at reducing access to Europe should therefore only have limited influence onto refugee rights and, surely do not solve the global reality of states failing protecting their people and creating increasing numbers of asylum seekers.

    It is however, not this simple. Being a forced migrant means having to demonstrate to have undergone violence, to flee dramatic situations, not only subjectively the claim has to be

    formulated in a credible way to be believed by the relevant official or judge-, to be a ―decent

    person‖ and not a terrorist.

    This is the beginning of a difficult journey for individuals who tell stories of their complex migration experience. It is not only a matter of statistics, numbers of entry, of rejection and deportation, but also of people, their humanity, their troubled past and unsure future. It is the story of border crossing.

     1 See Chapter 3.2.1

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    The Human Rights of Refugees: The Italian Solution

    The idea of borders is built on different levels: the mere physical, the juridical and political, and the economic, social-cultural level, strictly intertwined and aligning towards restriction of prospect of entry in rich countries.

    The first level, the physical is conditioned by natural barriers, sea or land. The see wrecks with dozens of ―illegal migrants‖ crossing the Mediterranean, which fill the images of the media, are but one of the means migrants resort to in order to reach Europe, paying thousands of dollars to occupy these inhuman spaces.

    But the real difficulty in crossing this natural barriers lies in the political and juridical barriers. In the specific European scenario, it is the laws of the European Union and of the State that separate those who are in, from those who should stay out. These laws mirror political choices, which have

    2historically informed asylum regime from the start of 1950s until now. The United Nations High

    Commissioner for Refugees (UNHCR) has recognised that refugees include those who flee from ―wretched conditions‖ associated with poverty, marginalisation and discrimination (UNHCR 2005).

    But paradoxically, as the economic and political situation in many regions has worsened, so the European countries along with all receiving countries in the West have tightened up their

    definitions of who or who is not entitled to asylum in their countries. A shift of concern from the protection of refugees to the securing of borders is a common feature of European asylum seekers and refugee regimes. For those who manage to make a claim for asylum, the likelihood is that it will

    34be rejected, with few exceptions within Europe.

    The juridical level has to take into account the political one but also the social and cultural spheres. These spheres are of particular interest as it is in these contextualised locations that the refugee can become an agent in trying to challenge the status quo and claiming his rights to dignity. These spheres are difficult to permeate. It is a combinations of stereotypes and unfounded fears amplified by media and politicians (looking for votes, responding to the supposed will of the population, or under the impetus of the rising extreme right wings realities across Europe). This has resulted in widespread negative perceptions of asylum seekers and refugees as fraudulent, and as threatening the economic and political stability of receiving countries. In practice, this rhetoric has made asylum claimants subject of rejection, detention or social marginalisation. As several scholars contend we could argue that there are no such things as bogus ―asylum seekers‖ but only rejected

    asylum seekers who are the result of current restrictive asylum policies (Freedman 2007).

     2 Chapter 3 succinctly presents the recent history of asylum in international law. 3 The European Union now rejects over 90% of asylum claims. Italy in 2008 rejected 75% of asylum claims 4 Germany is an exception to the rule, with over 500,000 refugees on its territory

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    The Human Rights of Refugees: The Italian Solution

    Is there a scope for creating a refugee discourse which includes the human consequences of their forced migration within receiving countries? Is there a scope for transforming such discourse into practice? The creation of a link to human rights and humanitarianism seem to be left to the agency of refugees and those associations articulating their rights, while governments and political interests in the rich, Western countries, are increasingly depriving refugee from the right to have rights.

Problem formulation

    In this work we will explore the contextualised locations in which refugees negotiate their rights, centred on human rights claims, and identity, with the help of a constructivist approach to international relations (IR). We will therefore look at the specific political and social situation of Italy as receiver of refugees. The discourse of refugee which conceals power relations, shaped and internalized domestically, will be central to this work, as the premises of this work is that refugee reality is historically and socially constructed by discourse, primarily shaped by the State and other actors which constrain refugees‘ claim making. Discourse, as described by Michel Foucault (1973),

    is the total of spoke, written language, symbols, and metaphors enacted by a community who has similar thoughts and ideas. Discourses allow us to construct and communicate a coherent interpretation of reality. In addition to rhetoric, discourses determine what entities are constructed, which relationships are considered natural, and who has agency within the discourse. In so doing, discourse creates the pre-debate consensus that will affect how the rest of the debate will proceed. The aim of this work is two folded: on one side we explore the impact of migration politics onto the lives of refugees and their human rights; on the other side we investigate the discoursive and political space left to refugees in Italy. The intention is to evaluate whether it is appropriate to talk about refugee agency within a local socio-political reality of a European country such as Italy, investigating the role of their discursively ascribed identity ―as people with less rights‖ and whether it can be challenged. An identity shift could enable to find a renewed and solid link between refugee rights and human rights, by the hands of refugees themselves.

Structure of the project

    In order to achieve the objective the work will be structured onto two levels.

    The first level will review the Italian domestic protection framework against the corpus of its international, regional, and constitutional legal commitments.

    A review of the main international instruments of the asylum regime will include the norms contained in the three major instruments for refugee protection at supranational level: the Universal

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    The Human Rights of Refugees: The Italian Solution

    Declaration, the Refugee Convention and the UNHCR Statute and mandate. The definition of refugees will be given particular attention.

    The review of regional instruments for refugee protection will follow with an overview of the European legislation aimed at consolidating a common European asylum system.

    The overview of Italian legislation that has emerged from a vacuum in the 1990s will demonstrate that Italy is a particular significant case within Europe. Unlike all European countries it still lacks a comprehensive organic law on asylum. The Italian Government‘s provisions are informed by a

    strategy of emergency and tentative, increasingly restrictive measures to cope with what is perceived as a large influx of illegal migrants and asylum seekers. We will suggest that the policy and practices of the Italian Government result in the exclusion of many potential refugees who never obtain access to the procedure to obtain the status, and also that for in-county refugees there is inadequate social and welfare provision, to the extent that minimum human rights standards are abridged. I will introduce the institutions symbol of the current Government‘s asylum regime,

    namely the Security Package introduced in 2009, the criminalization of illegal migration and the recent agreement with Libya to halt the flows of illegal migrants setting off from its costs. Such

    provisions are not only abridging international standards of human rights but are often impossible to implement and deny the legal presence of refugees, rather than their physical presence. The municipal provisions to refugees and beneficiaries of international protection of two Northern cities, Milan and Turin will also be included.

    Within the international asylum regime, a separate chapter is dedicated to human rights of refugee. Here we include the most relevant human rights treaties that can guarantee refugees protection. According to the UNHCR human rights instruments, both universal and regional, are broader in scope than refugee specific treaties, in terms of the entitlements that refugees and asylum-seekers have under international human rights law in the country of asylum (UNHCR 2009b).

    The second part of this work is based on empirical data. We will look closely at the status-quo of the rights of in-country refugees. The analysis will be two folded: first we explore the opportunities or lack of them, to articulate a discourse of human rights within Italian society. The link between human rights and the responsibility to protect refugees are relevant in this study, in a country that has committed to human rights standards by signing all international and European treaties constituting the overarching refugee protection framework, and in which the moral imperative of assisting those in need is deeply enshrined in the country catholic tradition.

    Secondly, we investigate refugee agency and how refugee provide alternative narratives of their human condition and identity, in processes of claim-making to sustain their rights to dignity in life.

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    The Human Rights of Refugees: The Italian Solution

    The constructivist approach permits to look at the relationship between structure (institutions and laws) and agents (possibly refugees) including the evaluation of the role of identity in enabling refugees‘ agency.

    The conceptual framework for analysis will include the notions of human rights, discourse, identity as tools to evaluate constraints and opportunities on both the political-juridical and social-discoursive levels.

    Through qualitative analysis I will report the experiences of refugees in two Northern cities: Milan and Turin. Empirical data are gathered by means of open ended interviews and observation with representatives of the two groups of refugees and of three privileged observer: the representative of UNHCR in Rome, in Turin and the Refugees Office of Amnesty International Milan. Moreover my observations as participant to the Congress ―Rifugiati, non solo numeri. Real People, Real Needs‖

    th 2009 on the occasion of the International day of the Refugee, will include the held on June 20

    views and discourses of the Turin Municipality, of Caritas Italia and of several NGOs working for refugees assistance and advocacy of their rights.

    The stories of ―Italian‖ refugees reveal the importance of human rights as the centre of their claims to basic rights, namely house, work and residency.

    Their experiences provide valuable examples of perils and problem resolution which we become significant as a contribution to a discourse of refugees rights encompassing human rights. At local level bringing to the surface their stories could represent a link between human well-being and politics.

Chapters Overview

    Context

    Chapter 1. presents the Italian political rhetoric on refugees and the social economic environment refugees inhabit in Italy. It will also briefly present the recent measures enacted by the Berlusconi Government to deter and contain migrations.

The Refugee in International Relations

    Chapter 2. introduces the figure of refugee in IR and reviews the international refugee regime.

Theory and practice

    Chapter 3. ―Principles of the current refugee regime‖, is a selected review of human rights

    instruments that apply to refugees: it includes the Refugee Convention and Human Rights treaties.

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    The Human Rights of Refugees: The Italian Solution

    Chapter 4. examines a selection of measures enacted by the European Union within the Common European Asylum system. Such measures are relevant to refugees in Italy and have been incorporated, to a certain extent into national legislations.

    Chapter 5. reviews the Italian asylum system.

Empirical analysis: theoretical background and methodology

    The second part of this work is based on empirical data, namely open ended interviews to refugees and privileged observers, and ethnographic observations.

    Chapter 6. presents the methodological and theoretical principles on the basis of which the analysis of refugees in Italy is carried out, namely human rights, social constructivism, identity and discourse. Data are presented.

Analysis

    Chapter 7. is dedicated to the analysis of empirical data on the basis of the presented theoretical background. Data will be distilled in thematic issues in order to provide evidence for a concept of

    refugee right, refugee agency and refugee identity. The actors in the discourse of refugee protection are identified.

Discussion and conclusion

    Chapter 8. discusses the findings and relates them to the International human rights regime, the refugee regime and the Italian legislation by proposing elements of an answer to the problem formulation. Chapter 9. outlines the findings that emerged during the analysis and the discussion and summarizes the entire work.

1. Refugees and Migrants in Italian economy, politics and

    sociology.

    In this chapter we introduce some aspects of the Italian economic, political and social background as receiver of migrants and refugees. Here, the discourse of refugees is necessarily linked to the broader discourses on migration, as we will see below. First we present what currently dominates the discourse of protection in Italy, namely the bilateral agreement between Libya and Italy. Secondly, by briefly presenting the historical and social characteristics of the migratory processes

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