Since the turn of the century, South American governments and regional organisations have adopted the world's most open discourse on migration and citizenship. At a time when restrictive choices were becoming increasingly predominant around the world, South American policymakers presented their discourse as being both an innovative and exceptional 'new paradigm' and part of a morally superior, avant-garde path in policymaking. This book provides a critical examination of the South American legal framework through a historical and comparative analysis. Diego Acosta uses this analysis to assess whether the laws are truly innovative and exceptional, as well as evaluating their feasibility, strengths and weaknesses. By analysing the legal construction of the national and the foreigner in ten South American countries during the last two centuries, he demonstrates how different citizenship and migration laws have functioned, as well as showing why states have opted for certain regulation choices, and the consequence of these choices for state- and nation-building in the continent. An invaluable insight for anyone interested in global migration and citizenship discussions.
**
Law
Social & Cultural Studies
Nonfiction
Reference & Language
International
Political Science
Cover 1
Half-title 3
Series information 5
Title page 9
Copyright information 10
Table of contents 11
Preface 13
List of acronyms 17
Political map of South America 19
1 South America’s Central Role in Migration and Citizenship Law 21
Introduction 21
Contribution to Academic Debates 27
Migration Flows in South America 30
Immigration in South America 30
Regional mobility 32
Emigration from South America 33
Returnees and New Immigrants, 2005– 2015 36
Actors in South America 37
The International Level 38
The Regional Level 39
The Domestic Level in South America 41
Debates in South America 43
Organisation of the Book 45
Part I: The Nineteenth and Twentieth Centuries 49
2 Open Borders in the Nineteenth Century: Constructing the National, the Citizen and the Foreigner 51
Introduction 51
Birthright Citizenship in South America 53
The Influence of the 1812 Cádiz Constitution 54
Ius Soli in the Constitutions of the New Republics and Brazil 56
Nationals and Citizens in the New Order 59
The Influence of the 1812 Cádiz Constitution 60
Nationals and Citizens in the Constitutions of the New Republics and Brazil 61
Naturalisation of Foreigners 62
The Influence of the 1812 Cádiz Constitution 63
Naturalisation of Foreigners in the Constitutions of the New Republics and Brazil 64
The Rights of Foreigners 70
The Influence of the 1812 Cádiz Constitution 71
The Rights of Foreigners in the Constitutions of the New Republics and Brazil 72
Discussion 74
Diffusion in South America’s Construction of the Foreigner and the National 75
Path Dependency in South America’s Legal Construction of the Foreigner and the National 77
Conclusion 78
3 The Construction of the Hispano-American Legal Figure in the Nineteenth Century 80
Introduction 80
The Regional Hispano-American as a Multilateral Concern 83
The Construction of a Regional Hispano-American in the First Bilateral Agreements (1822–1826) 84
The Construction of the Hispano-American in Multilateral Agreements (1826–1865) 86
The Hispano-American as a Bilateral Concern 90
Sharing Nationals and Citizens as a Bilateral Practice 90
Providing Equal Civil Rights and Other Prerogatives as a Bilateral Practice 92
Agreements Developing a Particular Aspect of Citizenship 92
Classical Navigation and Commerce Agreements with Further Rights 93
The Hispano-American as a Constitutional Concern 94
Discussion 99
Explaining the Construction of the Hispano-American 100
Implementation in Practice 101
Influence Today 103
Conclusion 104
4 The Legal Construction of the Foreigner as Undesirable in Twentieth-Century South America 106
Introduction 106
From the 1889 Pan-American Conference to the 1929 Economic Crash 111
Exclusion Based on Race and Ethnicity 111
Exclusion Based on Political Ideology 115
Exclusion Based on Morals and Other ‘Inadequacies’ 117
The 1929 Economic Crisis 119
Military Dictatorships and the Doctrine of National Security in the 1970s and 80s 121
Discussion 124
Explaining Discrimination 125
The Position of Hispano(Latin)-American Citizens 127
Conclusion 130
Part II: Consolidation and Transition into the Twenty-first Century 133
5 The Construction of the Irregular Immigrant: The Principle of Non-Criminalisation of Undocumented Migration 140
Introduction 140
Criminalising Irregular Migration 143
Criminalisation before Entry into the Territory 144
Visa Policy 145
Carrier Sanctions 146
Criminalisation during the Stay 146
Criminalisation towards Removal 150
Regularisation of Migrants in South America 151
Regularisation as a Unilateral Concern 152
Regularisation as a Bilateral Concern 154
Regularisation as a Multilateral Concern 155
Regularisation as an Individual Subjective Right 155
Family Life 155
An Individual Right to Attempt Regularisation 157
Discussion 158
Legal Explanations 158
The International Legal Framework 158
Discretion 161
Political Explanations 162
The Politics of Humiliation 162
The Politics of Reciprocity 163
Domestic Politics 164
Social Factors on the Ground 164
Conclusion 165
6 The Right to Migrate as a Fundamental Right? The Construction of the Foreigner through Equal Treatment 168
Introduction 168
A Right of Entry in South America? 172
Family Reunification 172
Dual Citizens 175
The Right to Migrate: Equal Treatment while Resident? 178
Access to the Labour Market and Quotas 179
Economic and Social Rights 180
Political Rights 181
Security of Residence, Access to Citizenship and Expulsion 182
Expulsion and Deportation 183
Access to Citizenship 185
Discussion 189
Conclusion 192
7 Open Borders and the Construction of a South American Citizen 193
Introduction 193
The Free Movement of People in South America 195
The Free Movement of People and the CAN 195
The Free Movement of People and MERCOSUR 199
The Free Movement of People, UNASUR and the Pacific Alliance 202
Incongruity, Implementation and Adjudication 203
Incongruity 203
Implementation 205
Adjudication 206
Interpreting through Dialogue between Governments 206
Interpreting through an External Committee 207
Interpreting through National Courts 208
Interpreting through a Supranational Tribunal: The CAN Case 209
Discussion 210
A Right of Entry for South Americans? 211
Towards a New Market Citizenship in South America? 212
Towards a South American Apartheid? 213
Irregular Migrants or South American Citizens? Towards a Regional Temporary Mobility Regime? 214
Conclusion 216
8 Conclusion: Constructing and Deconstructing the Foreigner – An Innovative and Exceptional Approach? 219
Introduction 219
Migration and Citizenship Law in the Nineteenth and Twentieth Centuries 221
Migration and Citizenship Law Today 224
Open Questions in the Literature 226
Nationals and Foreigners 226
The Demise of Citizenship 228
South America as a Global Influential Model? 232
Afterword 235
Bibliography 237
Newspaper Articles 257
Legislation: South American Countries 259
Argentina 259
Bolivia 261
Brazil 261
Chile 263
Colombia 264
Ecuador 266
Paraguay 267
Peru 267
Uruguay 269
Venezuela 269
Legislation: Countries in Latin America outside South America 272
Costa Rica 272
Dominican Republic 272
El Salvador 273
Guatemala 273
Honduras 274
Mexico 274
Nicaragua 275
Panama 275
Republic of Central America 275
Legislation: Countries outside Latin America 276
France 276
Portugal 276
Spain 276
USA 276
Bilateral Agreements 277
Regional Organisations of the Americas 282
Andean Community (CAN) 282
CELAC 283
MERCOSUR 283
Organisation of American States 284
Pacific Alliance 284
South American Conference on Migration 285
UNASUR 285
Agreements, Pan-American Conferences 286
Other Regional Agreements in the Americas 287
United Nations Instruments 289
Other International Instruments 290
Committee Against Torture (CAT) 290
Committee on Migrant Workers 290
Council of Europe 290
European Union Law 291
International Labour Organization 291
Case Law 292
International/Regional 292
Andean Court of Justice 292
European Commission of Human Rights 292
European Court of Human Rights 292
European Court of Justice 292
Inter-American Commission 293
Inter-American Court of Human Rights 293
International Court of Justice 293
National 294
Argentina 294
Brazil 294
Canada 294
Colombia 294
United Kingdom 294
USA 294
Index 295

upload/motw_shc_2025_10/shc/The National Versus the Foreign - Diego Acosta.pdf

motw/The National Versus the Foreign - Diego Acosta.pdf

Acosta, Diego

Cambridge Library Collection

Law in context, Cambridge United Kingdom ; New York NY, 2018

United Kingdom and Ireland, United Kingdom

Jun 15, 2018

producers:
Adobe PDF Library 15.0

Memory of the World Librarian: Calamitous Annunciation

Source title: The National versus the Foreigner in South America: 200 Years of Migration and Citizenship Law (Law in Context)

Since 1970 The Law In Context Series Has Been At The Forefront Of The Movement To Broaden The Study Of Law. It Has Been A Vehicle For The Publication Of Innovative Scholarly Books That Treat Law And Legal Phenomena Critically In Their Social, Political And Economic Contexts From A Variety Of Perspectives. The Series Particularly Aims To Publish Scholarly Legal Writing That Brings Fresh Perspectives To Bear On New And Existing Areas Of Law Taught In Universities. A Contextual Approach Involves Treating Legal Subjects Broadly, Using Materials From Other Social Sciences, And From Any Other Discipline That Helps To Explain The Operation In Practice Of The Subject Under Discussion. It Is Hoped That This Orientation Is At Once More Stimulating And More Realistic Than The Bare Exposition Of Legal Rules. The Series Includes Original Books That Have A Different Emphasis From Traditional Legal Textbooks, While Maintaining The Same High Standards Of Scholarship. They Are Written Primarily For Undergraduate And Graduate Students Of Law And Of Other Disciplines, But Will Also Appeal To A Wider Readership. In The Past, Most Books In The Series Have Focused On English Law, But Recent Publications Include Books On European Law, Globalisation, Transnational Legal Processes, And Comparative Law-- South America's Central Role In Migration And Citizenship Law -- Open Borders In The Nineteenth Century : Constructing The National, The Citizen And The Foreigner -- The Construction Of The Hispano-american Legal Figure In The Nineteenth Century -- The Legal Construction Of The Foreigner As Undesirable In Twentieth Century South America -- The Construction Of The Irregular Immigrant : The Principle Of Non-criminalisation Of Undocumented Migration -- The Right To Migrate As A Fundamental Right? : The Construction Of The Foreigner Through Equal Treatment -- Open Borders And The Construction Of A South American Citizen -- Conclusion : Constructing And Deconstructing The Foreigner : An Innovative And Exceptional Approach? Diego Acosta. Includes Bibliographical References (pages 217-238) And Index.

"Since 1970 the Law in Context series has been at the forefront of the movement to broaden the study of law. It has been a vehicle for the publication of innovative scholarly books that treat law and legal phenomena critically in their social, political and economic contexts from a variety of perspectives. The series particularly aims to publish scholarly legal writing that brings fresh perspectives to bear on new and existing areas of law taught in universities. A contextual approach involves treating legal subjects broadly, using materials from other social sciences, and from any other discipline that helps to explain the operation in practice of the subject under discussion. It is hoped that this orientation is at once more stimulating and more realistic than the bare exposition of legal rules. The series includes original books that have a different emphasis from traditional legal textbooks, while maintaining the same high standards of scholarship. They are written primarily for undergraduate and graduate students of law and of other disciplines, but will also appeal to a wider readership. In the past, most books in the series have focused on English law, but recent publications include books on European law, globalisation, transnational legal processes, and comparative law"-- Provided by publisher

2025-10-27