1. THE ASYLUM REGIME AFTER WORLD WAR II
An analysis of asylum regimes as they are formulated today must necessarily be considered within the context of continuity and change in their historical development. In the post World War II era an asylum regime was elaborated which mostly addressed European refugees and was governed by the 1951 Geneva Convention; it soon evolved into a liberal regime of entry coupled with generous conditions of long-term stay in most industrialised countries. Although the Geneva Convention became a universal instrument (with the removal of the geographical and historical limitations), other regions of the world developed their own sub-regimes. In Africa, the Organisation of African Unity prepared its own Convention in 1969, which met the conditions pertaining to the end of colonisation, the problems deriving from it and the establishment of newly independent states. This regime was one of reciprocity and sharing with much broader defining criteria than those of the Geneva Convention. This was characterised by the acceptance of mass influxes, short or long-term temporary protection and repatriation when possible (Suhrke 1993). Asia demonstrated a kind of regional refugee regime with an internal practice of sharing (Suhrke and Hans 1995) particularly in South Asia, while in South East Asia a massive outflow from Indochina in the wake of the US defeat resulted in some granting of temporary protection in neighbouring states combined with the global co-ordination of mass resettlement outside the region into industrialised states. In Latin America a strong tradition of asylum was somewhat frozen up by the successive military dictatorships which took over the Southern cone in the early 70s and fanned refugees all over the world whereas in Central America the 1984 Cartagena Declaration facilitated the reception of refugees across a variety of states. One central feature of that period appears to be the generally favourable ethos vis-a-vis refugees albeit through regionally determined differentiated formulas. Central and Eastern Europe remained outside the regime as those countries did not adhere to the Geneva Convention, but they nonetheless received a number of refugees from right-wing military dictatorships (such as Chile in 1973).

The UNHCR defined that period as ‘reactive, exile-oriented and refugee specific’ (quoted in Joly and Suhrke 1997) and this is corroborated by a number of scholars who stress the exile bias of the regime (Chimmi 1998). The underpinnings to this focus in the Western world were those of a world divided into two blocks poised against each other, wherein refugees acquired an inherent ideological value for the Western block in the discrediting of the communist model and where the emphasis on human rights and solidarity served to legitimate the liberal world. The guilt generated by the atrocities concomitant with nazism and World War II also played a part. According to Chimmi, (1998) this led to a positivist tradition and a depoliticised discourse in refugee studies (mostly occupied by lawyers) positing international law as an abstract system of rules which could be identified, objectively interpreted and enforced, i.e. a neutral language opposed to the politicised language of the Soviet Union. It was also a period of relative economic prosperity and expansion in the industrialised world and of hope for better prospects in the decolonised part of the world. Altogether this conjuncture made way for a relatively favourable approach to asylum on the part of governments.

At the end of the Second World War, the presence of millions of refugees in Europe brought the question of asylum onto the political agenda of the international community. During that period, what I refer to here as the 'old regime' began to come into existence (see Table 16.1). The historical circumstances which presided over its formulation are twofold: the Second World War and the Cold War. Events leading up to World War II and the war itself generated widespread guilt throughout Europe, as a result of the atrocities carried out on millions of victims of fascism and Nazism, many of whom were refused permission to enter and obtain asylum in other European countries. As a consequence the notion of refugee was influenced by the social realities of the time; those categories who had suffered persecution under nazi and other fascist regimes (Hathaway 1984). In addition, the beginning of the Cold War was sealed by the political supremacy of the United States in the Western World, poised against the Warsaw Pact countries (Saloman 1991).

The 1951 Geneva Convention on refugees arose from this conjuncture, awarding a special treatment to 'political refugees' and stressing the individual rather than the group, through a universal definition. It was thus designed to cater also for refugees from communist states. However international laws on refugees reflect not only 'the conscience of the world' at a particular point in history but also the global balance of power and the political climate of the times. A measure of consensus had to be attained taking on board the different national interests, but also the social forces at work including the labour and communist movements; hence not only notions of individual liberty but also those of social rights and standards of treatment are enshrined in the Geneva Convention. The question of asylum was not formulated only in terms of entry but also of status and protection. Moreover, this period coincided with an economic boom and a liberal migration policy into Europe to meet labour shortages. The 1951 Convention had gradually been ratified by European states; 16 ratified it before 1960; they then proceeded to ratify the 1967 Protocol. In the 1970s, the trend in asylum law was a liberal one, (Jaeger 1992) incorporating the principles of the Convention and Protocol (Jaeger 1992). By 1995 there were 127 states signatory of the 1951 Convention and 1967 Protocol world-wide. (Joly with Kelly and Nettleton 1997).

The regime that developed in the wake of the Second World War in Europe prevailed until approximately the end of the seventies. It is difficult to give it more precise historical limits as it neither was born nor ceased overnight. We are dealing with a regime being constructed and thereafter dismantled over time; the main characteristics which are defined here are in a sense those of a type and do not dwell on the many variations in its implementation by different countries.

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