Journal articles on the topic 'Migration tribunals'

This article unpacks the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ats). The ats allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations. While diverse, citations to international cases and materials in ats adjudication cluster around three areas: (1) aiding and abetting as a mode of liability; (2) substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. The limited capacity of international criminal courts and tribunals portends that domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of us courts of general jurisdiction as receivers of international criminal law instruct upon broader patterns of transnational legal migration and reveal an unanticipated extracurricular legacy of international criminal courts and tribunals.

AbstractThis article explores the inequality inhering to low-wage migrant labour and critically evaluates the current capacity of human rights law to account for and address this inequality. This article uses two recent human rights tribunal decisions as case studies through which to conduct this examination:PN v FR, 2015 BCHRT 60, andOPT v Presteve Foods Ltd, 2015 HRTO 675. While these cases establish the positive role of human rights law in accounting for the wider context in which inequality impacts on migrant labour, this role is also inherently limited by the purpose, scope, and function of the Tribunals. This article will identify and discuss issues illustrated in the cases that are reflective of deeper systemic and structural inequalities attending low-wage migrant labour, including: the underlying reasons motivating low-wage labour migration; the legal regulations governing migrant workers’ status and employment conditions; and, the racialization of migrant workers.

RésuméÀ travers la migration d'une institution juridique spécifique—le Mahr (une forme de dot), cet article s'intéresse à la manière dont le mariage musulman voyage vers le Canada, les États-Unis, la France et l'Allemagne, offrant une panoplie d'images, de contradictions et de considérations distributives dans le transit du droit de la famille musulman au processus adjudicatif occidental. J'insiste sur l'importance d'orienter le débat sur les conséquences judiciaires distributives telles que vécues par les femmes musulmanes plutôt que sur la théorie de la reconnaissance. Cet article présente une contribution méthodologique importante relativement au rôle de la politique identitaire et de l'(im)possibilité des transferts juridiques en droit comparé. Par sa fenêtre ouverte et intime sur l'interaction entre le droit islamique et le droit occidental, la présente étude jurisprudentielle révèle que le Mahr ne peut voyager en terre occidentale sans transplanter une interaction hautement complexe entre des parties dont les intérêts sont souvent opposés quant à sa reconnaissance. Une analyse distributive empruntant au réalisme juridique s'impose en la matière, en raison du fait que le Mahr est d'ordinaire utilisé par les parties comme outil de négociation relativement à leurs obligations contractuelles familiales. De plus, le droit islamique se déplace avec une multiplicité de voix et c'est cette hybridité complexe qui sera reçue et interprétée par les tribunaux occidentaux.

LABURPENA: Egoera irregularreko etorkinak zaurgarritasun handiko egoeretan egoten dira, eta benetako aukera gutxi dute justiziaz eraginkorki baliatzeko. Horren ondorioz, auzitegietan gutxitan kontuan hartu dira haien aurka egindako giza eskubideen urraketak. Horregatik, garrantzitsua da jakitea Giza Eskubideetarako Inter-amerikar Auzitegiak Nadege Dorzema eta beste batzuk kasuan emandako epaiaren norainokoa eta zer-nolakoa, auzitegi horren auzietako jurisprudentzia-historiaren 25 urteetan gai hori aztertu duen bigarren kasua izan baita. Horiek horrela, artikulu honetan labur aztertzen da migratzaileekin zerikusia duen inter-amerikar jurisprudentzia, eta Nadege kasuan emandako epaiaren edukia oinarri hartuta, migrazio irregularraren azterketa Amerikako giza eskubideen auzitegian gaur egun zer egoeratan dagoen zehazten da. RESUMEN: Las personas migrantes en situación irregular suelen encontrarse en condiciones de alta vulnerabilidad y con pocas opciones reales para acceder de manera efectiva a la justicia. Ello ha generado que sean pocos los casos en los cuales los tribunales han conocido de violaciones de derechos humanos cometidas en contra de éstas. De ahí, la importancia de conocer el alcance y sentido de la sentencia de la Corte Interamericana de Derechos Humanos en el caso Nadege Dorzema y otros, al ser apenas el segundo caso en 25 años de historia jurisprudencial contenciosa de ese tribunal en el que se ocupa de dicho tema. Así las cosas, en este artículo se hace un breve repaso a la jurisprudencia interamericana relacionada con personas migrantes, para determinar a partir del contenido de la sentencia del caso Nadege, el estado actual que guarda el análisis de la migración irregular en el tribunal de derechos humanos de América. ABSTRACT: Irregular migrant persons usually find themselves in highly vulnerable conditions and with few real options to effectively gain access to justice. That has caused almost no cases where courts get to know human rights violations committed against them. That is why it is so important to know the scope and significance of the Inter-American Court of Human Rights judgment in case Nadege Dorzeman and others due to the fact that is only the second case in 25 years of contentious case law history of that court where it deals with such an issue. That being said, this article reviews the Inter-American case law related to migrant persons in order to establish according to the ruling in Nadege the current state regarding the analysis of irregular migration in the American court of Human Rights.

AbstractThe present article revisits international criminal law as a tool for sanctioning the most patent abuses against migrants. Although deportation is traditionally considered as an attribute of the state inherent to its territorial sovereignty, this prerogative may degenerate into an international crime. The prohibition of deportation has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War. This prohibition has been further refined over the past 15 years by an extensive jurisprudence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.Against such a background, this article demonstrates that, in some circumstances, deportation may amount to a war crime, a crime against humanity or even a crime of genocide, depending on the factual elements of the case and the specific requirements of the relevant crime. This article accordingly reviews the constitutive elements of each crime and transposes them into the context of migration control. It highlights in turn that, although its potential has been neglected by scholars and practitioners, international criminal law has an important role to play for domesticating the state's prerogative of deportation and infusing the rule of law into the field of migration. The article concludes that there are reasonable grounds for asserting that a crime against humanity would have been committed in the Dominican Republic and Australia with regard to their deportation policy.

Under the new Turkish Law on Foreigners and International Protection (Article 54) represents a rapid deterrent approach as the consequences of fraud are implemented within 30 days. In contrast to the Turkish approach, Public Interest Criteria 4020 used in Australian law implies a lengthy process that may take up to two years. A quantitative analysis of retrospective data (2010-2014) of the Australian Migration Review Tribunal substantiated the notion that in contrast to the Turkish model, the Australian model is used as a procrastinating tool to the advantage of unintended economic migrants to remain in Australia.

La République dominicaine et Haïti, depuis leur naissance, d’abord en tant que colonies de deux puissances coloniales antagoniques (l’Espagne et la France), puis en tant que républiques libérées du colonialisme et de l’esclavagisme brutal au début du XIXe siècle, vivent dans une tension constante. L’histoire de ces deux petits pays partageant la même île et qui ensemble ne mesurent que quelque 77 000 kilomètres carrés, rapporte que cette tension irrésolue et liée principalement à la question de la migration des Haïtiens vers la partie est de l’île fait partie inhérente de la politique économique depuis l’occupation américaine de 1915-1934. Elle est maintenue et nourrie par les élites économiques et politiques des deux pays au service du capital multinational. Elle est utilisée pour camoufler les enjeux économiques, pour contrôler la mobilité des travailleurs esclaves et légitimer les accrocs aux respects des droits humains sur l’île. Le massacre des Haïtiens et des Dominicains noirs en 1937 et l’arrêt du Tribunal constitutionnel dominicain en 2013 enlevant leur nationalité à des milliers de Dominicains d’origine haïtienne doivent être interprétés à partir d’une même logique économique : se débarrasser du surplus de population jugée indésirable sous la couverture de la souveraineté politique et ethnique. Mais cette notion archaïque de souveraineté est démasquée, car la résistance est sortie de sa peur paralysante, et l’exploité se découvre sujet de droits et réclame sa place légitime.

La migration irrégulière est perçue par la communauté internationale comme un enjeu sécuritaire. La criminalisation de l’immigration devient alors un outil de contrôle migratoire et de sécurisation des frontières. Au cours des dernières années, le Canada a adopté une approche punitive et un recours plus important à la criminalisation de l’immigration irrégulière, avec des peines pouvant atteindre l’emprisonnement à vie. Paradoxalement, malgré un renforcement normatif, dont l’adoption de peines minimales obligatoires et l’augmentation des peines maximales, les tribunaux canadiens imposent aux passeurs des peines d’emprisonnement de courte durée et généralement des peines d’emprisonnement avec sursis à purger dans la collectivité. Le présent article présente les résultats des analyses législatives et jurisprudentielles relatives au trafic de migrants au Canada. Les résultats démontrent que les peines octroyées par les tribunaux ne sont pas proportionnelles aux discours politiques et médiatiques alarmistes à l’égard de la menace que représente l’organisation de l’entrée illégale.

This article theorizes the dynamics that emerge from the intimate relationship between contemporary African migration, liquid borders, and law around the channel of Sicily, between Italy and Libya. There, in the same waters where Ulysses and Aeneas roamed for years, whose epic journeys are considered foundational within the European identity narrative, today the trajectories that migrants boats traverse are disrupting and shuffling the European geographical limits. As a response, states are enacting a policy of containment that renders African migrants’ presence at sea invisible, while criminalizing human solidarity enacted by private organizations as well as individuals. Making use of a legal discourse analysis I will dig the premises behind the antinomic concept of criminal solidarity that emerges today in Europe as a somehow coherent system of thought, shaped by laws, codes of conduct, rules, and rulings. Specifically, by analyzing the rulings of one tribunal in Sicily, I will make an attempt to expose how rigid conceptions of borders naturalize state’s efforts to define the limits of national territory, while conversely, I will consider how the micropolitics of justice are capable of shaping the contours of discourses on current migration.

AbstractIn all the applications before the ECtHR concerning migration at sea, a preliminary, yet seminal, question is whether the applicants were within the jurisdiction of the respondent State, in terms of Article 1 of the European Convention on Human Rights (ECHR). This question becomes even more apposite in contemporary situations of remote interception or search and rescue operations. In addressing the matter of jurisdiction in such cases, the law of the sea becomes of significant importance. This Article argues that as the International Tribunal of the Law of the Sea (ITLOS) has often taken into account human rights considerations, similarly, the European Court of Human Rights should read into the term “jurisdiction” under Article 1 of ECHR law of the sea considerations. Far from resurrecting Banković and the strict “general international law” notion of jurisdiction under ECHR, this Article only intends to shed some light on when a State would be considered as exercising such “authority and control over persons” in the maritime domain. In so doing, this Article will focus only on the potential application of the ECHR to the most common practices of States vis-à-vis migration on the high seas, namely interception and rescue operations.

This paper proposes a critical analysis of the innovative jurisprudential approaches taken by the Inter-American Court of Human Rights in integrating the content and scope of protection of the human rights of children, in the context of migration processes. How might one provide an effective protection to unaccompanied children that enter irregularly into the territory of a given country, when the safeguards guaranteed at the national level are elusive or inefficient? By focusing on the pioneering jurisprudence developed by the Inter-American Court of Human Rights in recent years, this paper intends to unveil how a systemic integration of children’s rights, under the light of the current international law developments, could provide an effective protection for the rights of children in the context of migration processes. In fact, as a result of an evolutive, dynamic and effective interpretation, the regional tribunal has expanded the scope of protection of the American Convention on Human Rights, by taking into consideration and making known, references to instruments and provisions enshrined within the corpus juris of international human rights law, such as the UN Convention of the Rights of the Child, and—consequently—improving the level of protection of millions of children in the Americas.

The underpinning essence of being part of a regional organisation such as the Southern African Development Community (SADC) is to achieve development through integration. Regional integration thus becomes the bedrock from which the treaties governing SADC and its member states are to be interpreted. The SADC Treaty and its various protocols articulate that members should eliminate obstacles to the free movement of people, goods and services. This should include the progressive reduction of immigration formalities in order to facilitate the freer movement of students and staff for the specific purposes of study, teaching, research and any other pursuits relating to education and training. Relying on international law principles such as pacta sunt servanda, this article establishes that though South Africa has made much progress in meeting most of the SADC obligations relating to migration and education, there are still grey policy areas that fall short of SADC standards and regional commitments. It also appraises the role of the SADC Council of Ministers, the Parliamentary Forum, the Tribunal and the National Committees in addressing these areas.

The people of Cambodia were subjected to widespread forced migration and labor, disease, starvation, torture, murder, and indeed, genocide over a period of four years during the control of the country by Pol Pot and the Khmer Rouge in the 1970s. While the country awaits some form of justice from the hybrid tribunal hearing cases against a few of the perpetrators of these crimes, it has undertaken to memorialize the dead in visible monuments in order that the people remember and never allow it to happen again. This paper outlines the few forensic investigations which have been undertaken on the remains of the deceased from this period in Cambodia's history. The current status of the legal proceedings and the current death investigation system in Cambodia are also presented. There is a wealth of objective forensic information that can be gathered from analyzing the remains that have been disturbed and placed in monuments (stupas), and also in the undisturbed graves across the country. This information cannot only assist in any legal proceedings, but can aide in training medicolegal experts in Cambodia for the future good of the country and its rule of law.

L’article explore le lien entre la politique européenne d’asile, l’impact de la lutte contre la migration irrégulière sur la criminalisation des demandeurs d’asile et les atteintes au droit d’accès à l’asile. Il étudie le processus sécuritaire de transformation du demandeur d’asile en un migrant irrégulier. L’européanisation du système d’asile est examinée à travers une analyse critique du dispositif Dublin relatif à la détermination de l’État responsable d’étudier une demande d’asile au sein de l’Union. En premier lieu, l’article explique comment l’européanisation permet aux États membres de l’Union européenne d’atteindre leur but de limiter les demandeurs d’asile sur leur sol. Deuxièmement, il souligne le rôle que jouent les tribunaux nationaux et européens dans l’imposition de limites au pouvoir discrétionnaire des États dans ce domaine. À cette fin, les modalités d’application du dispositif Dublin et ses conséquences sur la protection des réfugiés sont analysées de manière comparative sur le plan de l’Union européenne et dans deux États membres de l’UE, la France et le Royaume-Uni. Il est soutenu qu’en l’absence d’une politique d’asile harmonisée sur le plan européen et vu les différences considérables entre les procédures nationales de détermination du statut de réfugié, la mise en oeuvre du dispositif Dublin, même une fois réformée, représente des défis majeurs pour l’accès à l’asile.

Resumen: Las expulsiones colectivas de extranjeros, aun estando prohibidas por el derecho internacional, son una práctica que sistemáticamente se ha aplicado en el ámbito del control de los flujos migratorios. En el caso de España, en su frontera sur terrestre, se han generalizado las denominadas “devoluciones en caliente”. Las vulneraciones de derechos que conllevan estas medidas son incompatibles con el Convenio Europeo para la Protección de los Derechos Humanos y de las Libertades Fundamentales, del que derivan obligaciones concretas para los Estados parte. Este trabajo, propone un análisis crítico de la jurisprudencia del Tribunal Europeo de Derechos Humanos para delimitar cuándo se produce una expulsión colectiva. Con ello se pretende evitar la aparente normalización de una medida que es ilegal e insistir en los mecanismos garantistas de los derechos de los extranjeros. Abstract: The collective expulsion of foreigners, although prohibited by International Law, is a practice that has been systematically applied in the field of control of migration flows. In the case of Spain, on its southern land border, the so-called police "push-backs" have become widespread. The violations of rights entailed by these measures are incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, from which obligations derive for the States Parties. This paper proposes a critical analysis of the jurisprudence of the European Court of Human Rights to delimit when a collective expulsion occurs. This is intended to avoid the apparent normalization of a measure that is illegal and to insist on mechanisms that guarantee the rights of foreigners.

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution

L’analyse du déroulement des carrières des magistrats exerçant dans les colonies entre les années 1830 et la fin de l’Empire souligne l’originalité de la magistrature coloniale, comparaison faite avec les magistrats de métropole. Pour l’essentiel natifs de métropole, ces magistrats font toute leur carrière dans les colonies, sauf dans la courte période de mise en place des tribunaux qui fait appel à des magistrats extérieurs et expérimentés. Le recrutement se fait peu au sein des élites locales, sauf dans les colonies les plus anciennes. Abstraction faite de la question de l’intérim, la mobilité de ces magistrats est un peu plus élevée qu’en métropole, résultant d’une carrière plus courte (âge de la retraite plus précoce), des conditions de vie difficiles (forte mortalité) et des échecs de début de carrière. Les échanges entre les deux magistratures sont limités, les migrations se faisant principalement des anciennes vers les nouvelles colonies, ce qui renforce le constat, valable jusqu’au milieu du xxe siècle, d’une magistrature coloniale autonome, achevant le plus souvent sa carrière dans l’Empire.

One of the most distinct places the politics of affect have played out in Australia of late has been in the struggles around the mandatory detention of undocumented migrants; specifically, in arguments about the amount of compassion border control practices should or do entail. Indeed, in 1990 the newly established Joint Standing Committee on Migration (JSCM) published its first report, Illegal Entrants in Australia: Balancing Control and Compassion. Contemporaneous, thought not specifically concerned, with the establishment of mandatory detention for asylum seekers, this report helped shape the context in which detention policy developed. As the Bureau of Immigration and Population Research put it in their summary of the report, “the Committee endorsed a tough stance regarding all future illegal entrants but a more compassionate stance regarding those now in Australia” (24). It would be easy now to frame this report in a narrative of decline. Under a Labor government the JSCM had at least some compassion to offer; since the 1996 conservative Coalition victory any such compassion has been in increasingly short supply, if not an outright political liability. This is a popular narrative for those clinging to the belief that Labor is still, in some residual sense, a social-democratic party. I am more interested in the ways the report’s subtitle effectively predicted the framework in which debates about detention have since been constructed: control vs. compassion, with balance as the appropriate mediating term. Control and compassion are presented as the poles of a single governmental project insofar as they can be properly calibrated; but at the same time, compassion is presented as an external balance to the governmental project (control), an extra-political restriction of the political sphere. This is a very formal way to put it, but it reflects a simple, vernacular theory that circulates widely among refugee activists. It is expressed with concision in Peter Mares’ groundbreaking book on detention centres, Borderlines, in the chapter title “Compassion as a vice”. Compassion remains one of the major themes and demands of Australian refugee advocates. They thematise compassion not only for the obvious reasons that mandatory detention involves a devastating lack thereof, and that its critics are frequently driven by intense emotional connections both to particular detainees and TPV holders and, more generally, to all who suffer the effects of Australian border control. There is also a historical or conjunctural element: as Ghassan Hage has written, for the last ten years or so many forms of political opposition in Australia have organised their criticisms in terms of “things like compassion or hospitality rather than in the name of a left/right political divide” (7). This tendency is not limited to any one group; it ranges across the spectrum from Liberal Party wets to anarchist collectives, via dozens of organised groups and individuals varying greatly in their political beliefs and intentions. In this context, it would be tendentious to offer any particular example(s) of compassionate activism, so let me instead cite a complaint. In November 2002, the conservative journal Quadrant worried that morality and compassion “have been appropriated as if by right by those who are opposed to the government’s policies” on border protection (“False Refugees” 2). Thus, the right was forced to begin to speak the language of compassion as well. The Department of Immigration, often considered the epitome of the lack of compassion in Australian politics, use the phrase “Australia is a compassionate country, but…” so often they might as well inscribe it on their letterhead. Of course this is hypocritical, but it is not enough to say the right are deforming the true meaning of the term. The point is that compassion is a contested term in Australian political discourse; its meanings are not fixed, but constructed and struggled over by competing political interests. This should not be particularly surprising. Stuart Hall, following Ernesto Laclau and others, famously argued that no political term has an intrinsic meaning. Meanings are produced – articulated, and de- or re-articulated – through a dynamic and partisan “suturing together of elements that have no necessary or eternal belongingness” (10). Compassion has many possible political meanings; it can be articulated to diverse social (and antisocial) ends. If I was writing on the politics of compassion in the US, for example, I would be talking about George W. Bush’s slogan of “compassionate conservatism”, and whatever Hannah Arendt meant when she argued that “the passion of compassion has haunted and driven the best men [sic] of all revolutions” (65), I think she meant something very different by the term than do, say, Rural Australians for Refugees. As Lauren Berlant has written, “politicized feeling is a kind of thinking that too often assumes the obviousness of the thought it has” (48). Hage has also opened this assumed obviousness to question, writing that “small-‘l’ liberals often translate the social conditions that allow them to hold certain superior ethical views into a kind of innate moral superiority. They see ethics as a matter of will” (8-9). These social conditions are complex – it isn’t just that, as some on the right like to assert, compassion is a product of middle class comfort. The actual relations are more dynamic and open. Connections between class and occupational categories on the one hand, and social attitudes and values on the other, are not given but constructed, articulated and struggled over. As Hall put it, the way class functions in the distribution of ideologies is “not as the permanent class-colonization of a discourse, but as the work entailed in articulating these discourses to different political class practices” (139). The point here is to emphasise that the politics of compassion are not straightforward, and that we can recognise and affirm feelings of compassion while questioning the politics that seem to emanate from those feelings. For example, a politics that takes compassion as its basis seems ill-suited to think through issues it can’t put a human face to – that is, the systematic and structural conditions for mandatory detention and border control. Compassion’s political investments accrue to specifiable individuals and groups, and to the harms done to them. This is not, as such, a bad thing, particularly if you happen to be a specifiable individual to whom a substantive harm has been done. But compassion, going one by one, group by group, doesn’t cope well with situations where the form of the one, or the form of the disadvantaged minority, constitutes not only a basis for aid or emancipation, but also violently imposes particular ideas of modern western subjectivity. How does this violence work? I want to answer by way of the story of an Iranian man who applied for asylum in Australia in 2004. In the available documents he is referred to as “the Applicant”. The Applicant claimed asylum based on his homosexuality, and his fear of persecution should he return to Iran. His asylum application was rejected by the Refugee Review Tribunal because the Tribunal did not believe he was really gay. In their decision they write that “the Tribunal was surprised to observe such a comprehensive inability on the Applicant’s part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him”. The phenomena the Tribunal suggest might have been emotion-stirring for a gay Iranian include Oscar Wilde, Alexander the Great, Andre Gide, Greco-Roman wrestling, Bette Midler, and Madonna. I can personally think of much worse bases for immigration decisions than Madonna fandom, but there is obviously something more at stake here. (All quotes from the hearing are taken from the High Court transcript “WAAG v MIMIA”. I have been unable to locate a transcript of the original RRT decision, and so far as I know it remains unavailable. Thanks to Mark Pendleton for drawing my attention to this case, and for help with references.) Justice Kirby, one of the presiding Justices at the Applicant’s High Court appeal, responded to this with the obvious point, “Madonna, Bette Midler and so on are phenomena of the Western culture. In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind”. Indeed, the High Court is repeatedly critical and even scornful of the Tribunal decision. When Mr Bennett, who is appearing for the Minister for Immigration in the appeal begins his case, he says, “your Honour, the primary attack which seems to be made on the decision of the –”, he is cut off by Justice Gummow, who says, “Well, in lay terms, the primary attack is that it was botched in the Tribunal, Mr Solicitor”. But Mr Bennett replies by saying no, “it was not botched. If one reads the whole of the Tribunal judgement, one sees a consistent line of reasoning and a conclusion being reached”. In a sense this is true; the deep tragicomic weirdness of the Tribunal decision is based very much in the unfolding of a particular form of homophobic rationality specific to border control and refugee determination. There have been hundreds of applications for protection specifically from homophobic persecution since 1994, when the first such application was made in Australia. As of 2002, only 22% of those applications had been successful, with the odds stacked heavily against lesbians – only 7% of lesbian applicants were successful, against a shocking enough 26% of gay men (Millbank, Imagining Otherness 148). There are a number of reasons for this. The Tribunal has routinely decided that even if persecution had occurred on the basis of homosexuality, the Applicant would be able to avoid such persecution if she or he acted ‘discreetly’, that is, hid their sexuality. The High Court ruled out this argument in 2003, but the Tribunal maintains an array of effective techniques of homophobic exclusion. For example, the Tribunal often uses the Spartacus International Gay Guide to find out about local conditions of lesbian and gay life even though it is a tourist guide book aimed at Western gay men with plenty of disposable income (Dauvergne and Millbank 178-9). And even in cases which have found in favour of particular lesbian and gay asylum seekers, the Tribunal has often gone out of its way to assert that lesbians and gay men are, nevertheless, not the subjects of human rights. States, that is, violate no rights when they legislate against lesbian and gay identities and practices, and the victims of such legislation have no rights to protection (Millbank, Fear 252-3). To go back to Madonna. Bennett’s basic point with respect to the references to the Material Girl et al is that the Tribunal specifically rules them as irrelevant. Mr Bennett: The criticism which is being made concerns a question which the Tribunal asked and what is very much treated in the Tribunal’s judgement as a passing reference. If one looks, for example, at page 34 – Kirby J: This is where Oscar, Alexander and Bette as well as Madonna turn up? Mr Bennett: Yes. The very paragraph my learned friend relies on, if one reads the sentence, what the Tribunal is saying is, “I am not looking for these things”. Gummow J: Well, why mention it? What sort of training do these people get in decision making before they are appointed to this body, Mr Solicitor? Mr Bennett: I cannot assist your Honour on that. Gummow J: No. Well, whatever it is, what happened here does not speak highly of the results of it. To gloss this, Bennett argues that the High Court are making too much of an irrelevant minor point in the decision. Mr Bennett: One would think [based on the High Court’s questions] that the only things in this judgement were the throwaway references saying, “I wasn’t looking for an understanding of Oscar Wilde”, et cetera. That is simply, when one reads the judgement as a whole, not something which goes to the centre at all… There is a small part of the judgement which could be criticized and which is put, in the judgement itself, as a subsidiary element and prefaced with the word “not”. Kirby J: But the “not” is a bit undone by what follows when I think Marilyn [Monroe] is thrown in. Mr Bennett: Well, your Honour, I am not sure why she is thrown in. Kirby J: Well, that is exactly the point. Mr Bennett holds that, as per Wayne’s World, the word “not” negates any clause to which it is attached. Justice Kirby, on the other hand, feels that this “not” comes undone, and that this undoing – and the uncertainty that accrues to it – is exactly the point. But the Tribunal won’t be tied down on this, and makes use of its “not” to hold gay stereotypes at arm’s length – which is still, of course, to hold them, at a remove that will insulate homophobia against its own illegitimacy. The Tribunal defends itself against accusations of homophobia by announcing specifically and repeatedly, in terms that consciously evoke culturally specific gay stereotypes, that it is not interested in those stereotypes. This unconvincing alibi works to prevent any inconvenient accusations of bias from butting in on the routine business of heteronormativity. Paul Morrison has noted that not many people will refuse to believe you’re gay: “Claims to normativity are characteristically met with scepticism. Only parents doubt confessions of deviance” (5). In this case, it is not a parent but a paternalistic state apparatus. The reasons the Tribunal did not believe the applicant [were] (a) because of “inconsistencies about the first sexual experience”, (b) “the uniformity of relationships”, (c) the “absence of a “gay” circle of friends”, (d) “lack of contact with the “gay” underground” and [(e)] “lack of other forms of identification”. Of these the most telling, I think, are the last three: a lack of gay friends, of contact with the gay underground, or of unspecified other forms of identification. What we can see here is that even if the Tribunal isn’t looking for the stereotypical icons of Western gay culture, it is looking for the characteristic forms of Western gay identity which, as we know, are far from universal. The assumptions about the continuities between sex acts and identities that we codify with names like lesbian, gay, homosexual and so on, often very poorly translate the ways in which non-Western populations understand and describe themselves, if they translate them at all. Gayatri Gopinath, for example, uses the term “queer diaspor[a]... in contradistinction to the globalization of “gay” identity that replicates a colonial narrative of development and progress that judges all other sexual cultures, communities, and practices against a model of Euro-American sexual identity” (11). I can’t assess the accuracy of the Tribunal’s claims regarding the Applicant’s social life, although I am inclined to scepticism. But if the Applicant in this case indeed had no gay friends, no contact with the gay underground and no other forms of identification with the big bad world of gaydom, he may obviously, nevertheless, have been a Man Who Has Sex With Men, as they sometimes say in AIDS prevention work. But this would not, either in the terms of Australian law or the UN Convention, qualify him as a refugee. You can only achieve refugee status under the terms of the Convention based on membership of a ‘specific social group’. Lesbians and gay men are held to constitute such groups, but what this means is that there’s a certain forcing of Western identity norms onto the identity and onto the body of the sexual other. This shouldn’t read simply as a moral point about how we should respect diversity. There’s a real sense that our own lives as political and sexual beings are radically impoverished to the extent we fail to foster and affirm non-Western non-heterosexualities. There’s a sustaining enrichment that we miss out on, of course, in addition to the much more serious forms of violence others will be subject to. And these are kinds of violence as well as forms of enrichment that compassionate politics, organised around the good refugee, just does not apprehend. In an essay on “The politics of bad feeling”, Sara Ahmed makes a related argument about national shame and mourning. “Words cannot be separated from bodies, or other signs of life. So the word ‘mourns’ might get attached to some subjects (some more than others represent the nation in mourning), and it might get attached to some objects (some losses more than others may count as losses for this nation)” (73). At one level, these points are often made with regard to compassion, especially as it is racialised in Australian politics; for example, that there would be a public outcry were we to detain hypothetical white boat people. But Ahmed’s point stretches further – in the necessary relation between words and bodies, she asks not only which bodies do the describing and which are described, but which are permitted a relation to language at all? If “words cannot be separated from bodies”, what happens to those bodies words fail? The queer diasporic body, so reductively captured in that phrase, is a case in point. How do we honour its singularity, as well as its sociality? How do we understand the systematicity of the forces that degrade and subjugate it? What do the politics of compassion have to offer here? It’s easy for the critic or the cynic to sneer at such politics – so liberal, so sentimental, so wet – or to deconstruct them, expose “the violence of sentimentality” (Berlant 62), show “how compassion towards the other’s suffering might sustain the violence of appropriation” (Ahmed 74). These are not moves I want to make. A guiding assumption of this essay is that there is never a unilinear trajectory between feelings and politics. Any particular affect or set of affects may be progressive, reactionary, apolitical, or a combination thereof, in a given situation; compassionate politics are no more necessarily bad than they are necessarily good. On the other hand, “not necessarily bad” is a weak basis for a political movement, especially one that needs to understand and negotiate the ways the enclosures and borders of late capitalism mass-produce bodies we can’t put names to, people outside familiar and recognisable forms of identity and subjectivity. As Etienne Balibar has put it, “in utter disregard of certain borders – or, in certain cases, under covers of such borders – indefinable and impossible identities emerge in various places, identities which are, as a consequence, regarded as non-identities. However, their existence is, none the less, a life-and-death question for large numbers of human beings” (77). Any answer to that question starts with our compassion – and our rage – at an unacceptable situation. But it doesn’t end there. References Ahmed, Sara. “The Politics of Bad Feeling.” Australian Critical Race and Whiteness Studies Association Journal 1.1 (2005): 72-85. Arendt, Hannah. On Revolution. Harmondsworth: Penguin, 1973. Balibar, Etienne. We, the People of Europe? Reflections on Transnational Citizenship. Trans. James Swenson. Princeton: Princeton UP, 2004. Berlant, Lauren. “The Subject of True Feeling: Pain, Privacy and Politics.” Cultural Studies and Political Theory. Ed. Jodi Dean. Ithaca and Cornell: Cornell UP, 2000. 42-62. Bureau of Immigration and Population Research. Illegal Entrants in Australia: An Annotated Bibliography. Canberra: Australian Government Publishing Service, 1994. Dauvergne, Catherine and Jenni Millbank. “Cruisingforsex.com: An Empirical Critique of the Evidentiary Practices of the Australian Refugee Review Tribunal.” Alternative Law Journal 28 (2003): 176-81. “False Refugees and Misplaced Compassion” Editorial. Quadrant 390 (2002): 2-4. Hage, Ghassan. Against Paranoid Nationalism: Searching for Hope in a Shrinking Society. Annandale: Pluto, 2003. Hall, Stuart. The Hard Road to Renewal: Thatcherism and the Crisis of the Left. London: Verso, 1988. Joint Standing Committee on Migration. Illegal Entrants in Australia: Balancing Control and Compassion. Canberra: The Committee, 1990. Mares, Peter. Borderline: Australia’s Treatment of Refugees and Asylum Seekers. Sydney: UNSW Press, 2001. Millbank, Jenni. “Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia.” Melbourne University Law Review 26 (2002): 144-77. ———. “Fear of Persecution or Just a Queer Feeling? Refugee Status and Sexual orientation in Australia.” Alternative Law Journal 20 (1995): 261-65, 299. Morrison, Paul. The Explanation for Everything: Essays on Sexual Subjectivity. New York: New York UP, 2001. Pendleton, Mark. “Borderline.” Bite 2 (2004): 3-4. “WAAG v MIMIA [2004]. HCATrans 475 (19 Nov. 2004)” High Court of Australia Transcripts. 2005. 17 Oct. 2005 http://www.austlii.edu.au/au/other/HCATrans/2004/475.html>. Citation reference for this article MLA Style McGrath, Shane. "Compassionate Refugee Politics?." M/C Journal 8.6 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0512/02-mcgrath.php>. APA Style McGrath, S. (Dec. 2005) "Compassionate Refugee Politics?," M/C Journal, 8(6). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0512/02-mcgrath.php>.

Trata-se da análise jurídica da crise migratória do mediterrâneo do ano de 2015 que levou milhares de migrantes a cruzarem o mar mediterrâneo para buscarem asilo na União Europeia, através da Itália e Grécia, que suscitou e ainda suscita diversas questões complexas a se resolverem. O presente trabalho visa uma análise jurídica de um princípio ainda pouco explorado no Direito da União Europeia, e tem como suporte os Acórdãos C-643/15 e C-647/15 (apensos) do Tribunal de Justiça da União Europeia (TJUE). O referido caso versa sobre o princípio jurídico da solidariedade e divisão equitativa de responsabilidades entre Estados-Membros em caso de necessária recolocação de migrantes de países terceiros. No caso em questão os Estados-Membros foram chamados a acudir os Estados originários de chegada dos migrantes, e assim dividir responsabilidades, e efetivar o princípio jurídico da solidariedade. Este trabalho se aterá a explorar aspectos comuns em crises migratórias como a em questão, investigando mais detalhadamente a aplicação do princípio jurídico da solidariedade no direito migratório, tendo como base o caso da crise migratória do mediterrâneo ocorrida no ano de 2015. Para tanto, se valerá do método dedutivo, do procedimento monográfico e da técnica de pesquisa bibliográfica.

El aumento de los flujos migratorios en las últimas décadas ha hecho que conociéramos en nuestro país y en los de nuestro entorno la mutilación genital femenina, práctica perteneciente a las tradición cultural de algunos grupos de inmigrantes, que constituye una manifestación de violencia de género, un atentado a los derechos humanos de las mujeres y que lesiona bienes jurídicos fundamentales recogidos en la Constitución. La tolerancia y el respeto a la identidad cultural de los inmigrantes tiene como límite el respeto de los derechos fundamentales, por lo que no se pueden admitir como lícitas en nuestro país la mutilación de las mujeres inmigrantes, que en la mayoría de los casos son menores de edad. Desde hace tiempo a nivel mundial se lucha para eliminar estas prácticas. Nuestro país se ha unido a esta lucha y siguiendo las recomendaciones internacionales, ha incluido el delito de mutilación genital en el Código penal y en el principio de justicia universal, en virtud de mismo, los Tribunales españoles serán competentes para juzgar las mutilaciones genitales realizadas fuera de nuestro territorio si los responsables se encuentran en España.Increased migration in recent decades has made us to know in our country and in our environment female genital mutilation, a practice belonging to the cultural tradition of some immigrant groups, which are a manifestation of gender violence, a attack on the human rights of women and injured fundamental legal rights enshrined in the Constitution. Tolerance and respect for the cultural identity of immigrants is limited to the respect of fundamental rights and therefore can not be permitted in our country as lawful mutilation of immigrant women, who in most cases are lower of age. It has long worldwide are struggling to eliminate these practices. Our country has joined this struggle and following international recommendations, included the crime of female genital mutilation in the Criminal Code and the principle of universal justice, under it, the Spanish courts are competent to judge genital mutilation carried out our territory if those responsible are in Spain.

Australia in Maps is a compilation of cartography taken from the collection of over 600,000 maps held at the Australian National Library. Included in this collection are military maps, coastal maps and modern-day maps for tourists. The map of the eastern coast of ‘New Holland’ drawn by James Cook when he ‘discovered’ Australia in 1770 is included. Also published is Eddie Koiki Mabo’s map drawn on a hole-punched piece of paper showing traditional land holdings in the Murray Islands in the Torres Strait. This map became a key document in Eddie Mabo’s fight for native title recognition, a fight which became the precursor to native title rights as they are known today. The inclusion of these two drawings in a collection of maps defining Australia as a country illustrates the dichotomies and contradictions which exist in a colonial nation. It is now fifteen years since the Native Title Act 1994 (Commonwealth) was developed in response to the Mabo cases in order to recognise Indigenous customary law and traditional relationships to the land over certain (restricted) parts of Australia. It is 220 years since the First Fleet arrived and Indigenous land was (and remains) illegally possessed through the process of colonisation (Moreton-Robinson Australia). Questions surrounding ‘country’ – who owns it, has rights to use it, to live on it, to develop or protect it – are still contested and contentious today. In part, this contention arises out of the radically different conceptions of ‘country’ held by, in its simplest sense, Indigenous nations and colonisers. For Indigenous Australians the land has a spiritual significance that I, as a non-Indigenous person, cannot properly understand as a result of the different ways in which relationships to land are made available. The ways of understanding the world through which my identity as a non-Indigenous person are made intelligible, by contrast, see ‘country’ as there to be ‘developed’ and exploited. Within colonial logic, discourses of development and the productive use of resources function as what Wetherell and Potter term “rhetorically self-sufficient” in that they are principles which are considered to be beyond question (177). As Vincent Tucker states; “The myth of development is elevated to the status of natural law, objective reality and evolutionary necessity. In the process all other world views are devalued and dismissed as ‘primitive’, ‘backward’, ‘irrational’ or ‘naïve’” (1). It was this precise way of thinking which was able to justify colonisation in the first place. Australia was seen as terra nullius; an empty and un-developed land not recognized as inhabited. Indigenous people were incorrectly perceived as individuals who did not use the land in an efficient manner, rather than as individual nations who engaged with the land in ways that were not intelligible to the colonial eye. This paper considers the tensions inherent in definitions of ‘country’ and the way these tensions are played out through native title claims as white, colonial Australia attempts to recognise (and limit) Indigenous rights to land. It examines such tensions as they appear in the media as an example of how native title issues are made intelligible to the non-Indigenous general public who may otherwise have little knowledge or experience of native title issues. It has been well-documented that the news media play an important role in further disseminating those discourses which dominate in a society, and therefore frequently supports the interests of those in positions of power (Fowler; Hall et. al.). As Stuart Hall argues, this means that the media often reproduces a conservative status quo which in many cases is simply reflective of the positions held by other powerful institutions in society, in this case government, and mining and other commercial interests. This has been found to be the case in past analysis of media coverage of native title, such as work completed by Meadows (which found that media coverage of native title issues focused largely on non-Indigenous perspectives) and Hartley and McKee (who found that media coverage of native title negotiations frequently focused on bureaucratic issues rather than the rights of Indigenous peoples to oppose ‘developments’ on their land). This paper aims to build on this work, and to map the way in which native title, an ongoing issue for many Indigenous groups, figures in a mainstream newspaper at a time when there has not been much mainstream public interest in the process. In order to do this, this paper considered articles which appeared in Australia’s only national newspaper – The Australian – over the six months preceding the start of July 2008. Several main themes ran through these articles, examples of which are provided in the relevant sections. These included: economic interests in native title issues, discourses of white ownership and control of the land, and rhetorical devices which reinforced the battle-like nature of native title negotiations rather than emphasised the rights of Indigenous Australians to their lands. Native Title: Some Definitions and Some Problems The concept of native title itself can be a difficult one to grasp and therefore a brief definition is called for here. According to the National Native Title Tribunal (NNTT) website (www.nntt.gov.au), native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs. The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. Native title is therefore recognised as existing on the basis of certain laws and customs which have been maintained over an area of land despite the disruption caused by colonisation. As such, if native title is to be recognised over an area of country, Indigenous communities have to argue that their cultures and connection with the land have survived colonisation. As the Maori Land Court Chief Judge Joe Williams argues: In Australia the surviving title approach […] requires the Indigenous community to prove in a court or tribunal that colonisation caused them no material injury. This is necessary because, the greater the injury, the smaller the surviving bundle of rights. Communities who were forced off their land lose it. Those whose traditions and languages were beaten out of them at state sponsored mission schools lose all of the resources owned within the matrix of that language and those traditions. This is a perverse result. In reality, of course, colonisation was the greatest calamity in the history of these people on this land. Surviving title asks aboriginal people to pretend that it was not. To prove in court that colonisation caused them no material injury. Communities who were forced off their land are the same communities who are more likely to lose it. As found in previous research (Meadows), these inherent difficulties of the native title process were widely overlooked in recent media reports of native title issues published in The Australian. Due to recent suggestions made by Indigenous Affairs Minister Jenny Macklin for changes to be made to the native title system, The Australian did include reports on the need to ensure that traditional owners share the economic profits of the mining boom. This was seen in an article by Karvelas and Murphy entitled “Labor to Overhaul Native Title Law”. The article states that: Fifteen years after the passage of the historic Mabo legislation, the Rudd Government has flagged sweeping changes to native title to ensure the benefits of the mining boom flow to Aboriginal communities and are not locked up in trusts or frittered away. Indigenous Affairs Minister Jenny Macklin, delivering the third annual Eddie Mabo Lecture in Townsville, said yesterday that native title legislation was too complex and had failed to deliver money to remote Aboriginal communities, despite lucrative agreements with mining companies. (1) Whilst this passage appears supportive of Indigenous Australians in that it argues for their right to share in economic gains made through ‘developments’ on their country, the use of phrases such as ‘frittered away’ imply that Indigenous Australians have made poor use of their ‘lucrative agreements’, and therefore require further intervention in their lives in order to better manage their financial situations. Such an argument further implies that the fact that many remote Indigenous communities continue to live in poverty is the fault of Indigenous Australians’ mismanagement of funds from native title agreements rather than from governmental neglect, thereby locating the blame once more in the hands of Indigenous people rather than in a colonial system of dispossession and regulation. Whilst the extract does continue to state that native title legislation is too complex and has ‘failed to deliver money to remote Aboriginal communities’, the article does not go on to consider other areas in which native title is failing Indigenous people, such as reporting the protection of sacred and ceremonial sites, and provisions for Indigenous peoples to be consulted about developments on their land to which they may be opposed. Whilst native title agreements with companies may contain provisions for these issues, it is rare that there is any regulation for whether or not these provisions are met after an agreement is made (Faircheallaigh). These issues almost never appeared in the media which instead focused on the economic benefits (or lack thereof) stemming from the land rather than the sovereign rights of traditional owners to their country. There are many other difficulties inherent in the native title legislation for Indigenous peoples. It is worth discussing some of these difficulties as they provide an image of the ways in which ‘country’ is conceived of at the intersection of a Western legal system attempting to encompass Indigenous relations to land. The first of these difficulties relates to the way in which Indigenous people are required to delineate the boundaries of the country which they are claiming. Applications for native title over an area of land require strict outlining of boundaries for land under consideration, in accordance with a Western system of mapping country. The creation of such boundaries requires Indigenous peoples to define their country in Western terms rather than Indigenous ones, and in many cases proves quite difficult as areas of traditional lands may be unavailable to claim (Neate). Such differences in understandings of country mean that “for Indigenous peoples, the recognition of their indigenous title, should it be afforded, may bear little resemblance to, or reflect minimally on, their own conceptualisation of their relations to country” (Glaskin 67). Instead, existing as it does within a Western legal system and subject to Western determinations, native title forces Indigenous people to define themselves and their land within white conceptions of country (Moreton-Robinson Possessive). In fact, the entire concept of native title has been criticized by many Indigenous commentators as a denial of Indigenous sovereignty over the land, with the result of the Mabo case meaning that “Indigenous people did not lose their native title rights but were stripped of their sovereign rights to manage their own affairs, to live according to their own laws, and to own and control the resources on their lands” (Falk and Martin 38). As such, Falk and Martin argue that The Native Title Act amounts to a complete denial of Aboriginal sovereignty so that Indigenous people are forced to live under a colonial regime which is able to control and regulate their lives and access to country. This is commented upon by Aileen Moreton-Robinson, who writes that: What Indigenous people have been given, by way of white benevolence, is a white-constructed from of ‘Indigenous’ proprietary rights that are not epistemologically and ontologically grounded in Indigenous conceptions of sovereignty. Indigenous land ownership, under these legislative regimes, amounts to little more than a mode of land tenure that enables a circumscribed form of autonomy and governance with minimum control and ownership of resources, on or below the ground, thus entrenching economic dependence on the nation state. (Moreton-Robinson Sovereign Subjects 4) The native title laws in place in Australia restrict Indigenous peoples to existing within white frameworks of knowledge. Within the space of The Native Title Act there is no room for recognition of Indigenous sovereignty whereby Indigenous peoples can make decisions for themselves and control their own lands (Falk and Martin). These tensions within definitions of ‘country’ and sovereignty over land were reflected in the media articles examined, primarily in terms of the way in which ‘country’ was related to and used. This was evident in an article entitled “An Economic Vision” with a tag-line “Native Title Reforms offer Communities a Fresh Start”: Central to such a success story is the determination of indigenous people to help themselves. Such a business-like, forward-thinking approach is also evident in Kimberley Land Council executive director Wayne Bergmann's negotiations with some of the world's biggest resource companies […] With at least 45 per cent of Kimberley land subject to native title, Mr Bergmann, a qualified lawyer, is acutely aware of the royalties and employment potential. Communities are also benefitting from the largesse of Australia’s richest man, miner Andrew “Twiggy” Forrest, whose job training courses and other initiatives are designed to help the local people, in his words, become “wonderful participating Australians.” (15) Again, this article focuses on the economic benefits to be made from native title agreements with mining companies rather than other concerns with the use of Indigenous areas of country. The use of the quote from Forrest serves to imply that Indigenous peoples are not “wonderful participating Australians” unless they are able to contribute in an economic sense, and overlooks many contributions made by Indigenous peoples in other areas such as environmental protection. Such definitions also measure ‘success’ in Western terms rather than Indigenous ones and force Indigenous peoples into a relationship to country based on Western notions of resource extraction and profit rather than Indigenous notions of custodianship and sustainability. This construction of Indigenous economic involvement as only rendered valid on particular terms echoes findings from previous work on constructions of Indigenous people in the media, such as that by LeCouteur, Rapley and Augoustinos. Theorising ‘Country’ The examples provided above illustrate the fact that the rhetoric and dichotomies of ‘country’ are at the very heart of the native title process. The process of recognising Indigenous rights to land through native title invites the question of how ‘country’ is conceived in the first place. Goodall writes that there are tensions within definitions of ‘country’ which indicate the ongoing presence of Indigenous people’s connections to their land despite colonisation. She writes that the word ‘country’: may seem a self-evident description of rural economy and society, with associations of middle-class gentility as well as being the antonym of the city. Yet in Australia there is another dimension altogether. Aboriginal land-owners traditionally identify themselves by the name of the land for which they were the custodians. These lands are often called, in today’s Aboriginal English, their ‘country’. This gives the word a tense and resonating echo each time it is used to describe rural-settler society and land. (162) Yet the distinctions usually drawn between those defined as ‘country’ people or ‘locals’ and the traditional Indigenous people of the area suggest that, as Schlunke states, in many cases Indigenous people are “too local to be ‘local’” (43). In other words, if white belonging and rights to an area of country are to be normalised, the prior claims of traditional owners are not able to be considered. As such, Indigenous belonging becomes too confronting as it disrupts the ways in which other ‘country’ people relate to their land as legitimately theirs. In the media, constructions of ‘country’ frequently fell within a colonial definition of country which overlooked Indigenous peoples. In many of these articles land was normatively constructed as belonging to the crown or the state. This was evidenced in phrases such as, “The proceedings [of the Noongar native title claim over the South Western corner of Australia] have been watched closely by other states in the expectation they might encounter similar claims over their capital cities” (Buckley-Carr 2). Use of the word their implies that the states (which are divisions of land created by colonisation) have prior claim to ‘their’ capital cities and that they rightfully belong to the government rather than to traditional owners. Such definitions of ‘country’ reflect European rather than Indigenous notions of boundaries and possession. This is also reflected in media reports of native title in the widespread use of European names for areas of land and landmarks as opposed to their traditional Indigenous names. When the media reported on a native title claim over an area of land the European name for the country was used rather than, for example, the Indigenous name followed by a geographical description of where that land is situated. Customs such as this reflect a country which is still bound up in European definitions of land rather than Indigenous ones (Goodall 167; Schlunke 47-48), and also indicate that the media is reporting for a white audience rather than for an Indigenous one whom it would affect the most. Native title debates have also “shown the depth of belief within much of rural and regional Australia that rural space is most rightfully agricultural space” (Lockie 27). This construction of rural Australia is reflective of the broader national imagining of the country as a nation (Anderson), in which Australia is considered rich in resources from which to derive profit. Within these discourses the future of the nation is seen as lying in the ‘development’ of natural resources. As such, native title agreements with industry have often been depicted in the media as obstacles to be overcome by companies rather than a way of allowing Indigenous people control over their own lands. This often appears in the media in the form of metaphors of ‘war’ for agreements for use of Indigenous land, such as development being “frustrated” by native title (Bromby) and companies being “embattled” by native title issues (Wilson). Such metaphors illustrate the adversarial nature of native title claims both for recognition of the land in the first place and often in subsequent dealings with resource companies. This was also seen in reports of company progress which would include native title claims in a list of other factors affecting stock prices (such as weak drilling results and the price of metals), as if Indigenous claims to land were just another hurdle to profit-making (“Pilbara Lures”). Conclusion As far as the native title process is concerned, the answers to the questions considered at the start of this paper remain within Western definitions. Native title exists firmly within a Western system of law which requires Indigenous people to define and depict their land within non-Indigenous definitions and understandings of ‘country’. These debates are also frequently played out in the media in ways which reflect colonial values of using and harvesting country rather than Indigenous ones of protecting it. The media rarely consider the complexities of a system which requires Indigenous peoples to conceive of their land through boundaries and definitions not congruent with their own understandings. The issues surrounding native title draw attention to the need for alternative definitions of ‘country’ to enter the mainstream Australian consciousness. These need to encompass Indigenous understandings of ‘country’ and to acknowledge the violence of Australia’s colonial history. Similarly, the concept of native title needs to reflect Indigenous notions of country and allow traditional owners to define their land for themselves. In order to achieve these goals and overcome some of the obstacles to recognising Indigenous sovereignty over Australia the media needs to play a part in reorienting concepts of country from only those definitions which fit within a white framework of experiencing the world and prioritise Indigenous relations and experiences of country. If discourses of resource extraction were replaced with discourses of sustainability, if discourses of economic gains were replaced with respect for the land, and if discourses of white control over Indigenous lives in the form of native title reform were replaced with discourses of Indigenous sovereignty, then perhaps some ground could be made to creating an Australia which is not still in the process of colonising and denying the rights of its First Nations peoples. The tensions which exist in definitions and understandings of ‘country’ echo the tensions which exist in Australia’s historical narratives and memories. The denied knowledge of the violence of colonisation and the rights of Indigenous peoples to remain on their land all haunt a native title system which requires Indigenous Australians to minimise the effect this violence had on their lives, their families and communities and their values and customs. As Katrina Schlunke writes when she confronts the realisation that her family’s land could be the same land on which Indigenous people were massacred: “The irony of fears of losing one’s backyard to a Native Title claim are achingly rich. Isn’t something already lost to the idea of ‘Freehold Title’ when you live over unremembered graves? What is free? What are you to hold?” (151). If the rights of Indigenous Australians to their country are truly to be recognised, mainstream Australia needs to seriously consider such questions and whether or not the concept of ‘native title’ as it exists today is able to answer them. Acknowledgments I would like to thank Damien Riggs and Andrew Gorman-Murray for all their help and support with this paper, and Braden Schiller for his encouragement and help with proof-reading. I would also like to thank the anonymous referees for their insightful comments. References Anderson, Benedict. Imagined Communities. 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