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Política migratoria en las islas Canarias: violaciones de derechos humanos durante la pandemia
(Pontificia Universidad Católica del Perú, 2022-11-24) Rodríguez Salinas, Roberto
Irregular migration is a complex phenomenon that defies the sole concepts of movement restriction and lockdown introduced by the pandemic. Accordingly, 2020 was a particularly tense year for migratory fluxes from Africa to Europe. The Canary islands route saw a reactivation after almost a decade of low activity, with 23,023 registered arrivals in 2020. Similarly to other European islands, such as Lesbos or Lampedusa, the Canary islands have limited state assistance resources for immigrants. The pandemic is, thus, a cause of the massive emigration in the Maghreb and Sub-Saharan Africa, but is also a decisive factor for the human rights violations before, during and after the immigrants’ arrival at the islands. Under these circumstances, Spain is obliged to comply with international, European, and national law regarding migrants’ fundamental rights. This paper argues that Spain must always guarantee the health protection of refugees and asylum seekers during the legal procedures of intervention, assistance and detention. Furthermore, the enforcement of sanitary measures is not a valid cause for omitting certain guarantees such as the right to legal assistance, the freedom of movement within national territory, the compliance with detention times, and the use of clean and safe reception centers.
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Politizar la violencia: migración, violencia sexo-genérica y cuidados comunitarios
(Pontificia Universidad Católica del Perú, 2022-11-24) Stang, María Fernanda; Stefoni, Carolina
This article deals with gender-sex violence as a significant expression of the structural nature of gender and sexuality in migratory processes. From the biographical approach, expressions of the multiple forms that this violence acquires (direct, structural, cultural) are addressed in the narratives of ten cis and trans migrant women of Latin American origin who reside in the cities of Antofagasta and Santiago, located in the north and central Chile, respectively, and who have an active participation in social organizations that carry out community care tasks, although these labours are not part of the purposes and main actions of these organizations. The approach is carried out around the idea of politicization in two senses: first, from the proposal to politicize sex-gender violence that is, to make visible the power relations that make it possible and the historical processes that have led to the construction of “violent” bodies and lives from the framework that intersects gender and sexuality with foreignness, ethnicity, “race” and class, among other dimensions; and, second, from the analysis of experiences of politicization of some of these migrant women in which this sex-gender violence is re-signified as the engine of their social participation, a re-signification crossed by the tensions and contradictions that this channeling of participatory action in tasks characterized by sex-gender inequality such as care implies. Although it is concluded that the scope of these experiences in the transformation of this sex-gender violence is fundamentally limited to the individual scale of intradomestic violence, it is proposed that these organizational experiences, in their daily actions and practices, silently and in the long run term undermine the liminality of the foreigner in relation to the recognition of rights by the State of residence, which harbors transformative potentialities of the idea of citizenship, at least from that practical dimension.
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Estrasburgo y la detención de inmigrantes: ¿nueva línea jurisprudencial?
(Pontificia Universidad Católica del Perú, 2022-11-24) Claro Quintáns, Irene
This article begins with the mention to the concept of “crimmigration”. This notion describes the increasing relationship between migration law and criminal law. The governmental authorities consider that detention can be a useful tool to control the irregular entry and stay in their countries. Moreover, International Human Rights Law allows the detention of migrant to prevent unauthorized entry or to effect deportation. However, from the European perspective, the European Convention on Human Rights has established two limits to the detention: the right to liberty (article 5) and the prohibition of torture or to inhuman or degrading treatment or punishment (article 3). This article provides an overview of the jurisprudence of the European Court of Human Rights regarding both articles, taking into consideration the situation of migrant children in particular.
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Tráfico de migrantes en las fronteras del norte de Chile: irregularización migratoria y sus resistencias
(Pontificia Universidad Católica del Perú, 2022-11-24) Liberona Concha, Nanette; Romero Quezada, Mileska; Salinas, Sius-geng; Veloso, Karen
This article seeks to account for the link between Chilean migration policies and the production of migrant smuggling on the country’s northern borders, in a context of global migration regime. Likewise, it reflects on the consequences of migratory illegalization caused by migrant smuggling and by the elaboration and legitimization of categories such as illicit, crime and irregular. To this end, a review of the literature referring to illegalized migration is made, taking some elements of the autonomy of migrations. It is evident that citizenship is exercised if social rights are assured, which is not the case with this population, that experiences a hyper vulnerability of its life, but that at the same time puts into practice a series of clandestine and public, individual and collective resistance that allows them to exercise a migrant citizenship. Methodologically, an ethnography of migrant smuggling was carried out at the border crossing to Chile between 2018 and 2021, which was complemented with a press review through the categorization of news from 2016 to 2021; and interviews with institutional informants were also conducted. It is concluded that migrant smuggling plays an important role in the illegalization of the migrant population, however, the conditions in which it occurs should be considered in judicial processes, since it would be aggravated trafficking. Considering it this way, it should lead to the regularization of migrants; nevertheless, they are criminalized instead, treated as “illegal” and have been subject to collective expulsions that, paradoxically, were analyzed as illegal.
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Autoría mediata por aparatos organizados de poder y coautoría en el ámbito empresarial: ¿solución frente a las limitaciones del derecho chileno para castigar como autores a los órganos directivos de las empresas?
(Pontificia Universidad Católica del Perú, 2022-11-24) Contreras Chaimovich, Lautaro Camilo; Castro Morales, Álvaro
In Chilean law, difficulties arise when it comes to ascribing criminal responsibility to corporate management bodies that give orders to their subordinates to commit intentional crimes of domination, which is explained by a variety of reasons, both dogmatic and of positive law. According to the “individual ascription of legal responsibility model”, the direct perpetrator of a crime is the person who carries out both the actus rea and means rea of an offence, without grounds for justificatory or excusatory defenses of guilt. Due to the existing division between making decisions and taking action in the corporate sphere, management bodies do not typically carry out the respective criminal conduct and, consequently, cannot be perceived as principal perpetrators. Moreover, they will often avoid making co-perpetration contributions, as described in article 15, Nos 1 and 3 of the Chilean Criminal Code. On the other hand, it is uncommon for them to use instruments that are not fully responsible for the perpetration of a crime, and thus cannot be considered as principal perpetrators by proxy. Therefore, corporate management bodies may only be held liable as instigators. Furthermore, the approach of German jurisprudence, according to which it is possible to extend the concept of organizational control to the corporate field, and thus punish the superior bodies that issue unlawful instructions as perpetrators by proxy, cannot be accepted in Chilean law; nor can the doctrinal proposal to make managers who order their subordinates to commit crimes liable as co-perpetrators be accepted.
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Ruptura entre promesas, voluntad y autonomía: ¿qué justifica la fuerza obligatoria del contrato?
(Pontificia Universidad Católica del Perú, 2022-11-24) Pereira Fredes, Esteban Antonio
This paper aims to show that the binding force of the contract is justified in respect for the personal autonomy of the contracting parties. To do this, a contrast is made between the notions of will, promises and autonomy that have led the efforts to justify the binding effect of the contract in dogmatic and philosophical studies of contract law. Finally, some advantages of personal autonomy over other competing parameters are indicated, reinforcing its relevance to support the principle pacta sunt servanda.
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Mujeres latinoamericanas inmigrantes en España: experiencias de racismo y asimilación
(Pontificia Universidad Católica del Perú, 2022-11-24) Hernández Martínez, Camila; Vilanova Becker, Patricia
From the fields of gender studies and anthropology, this interdisciplinary study analyzes the racist experiences lived by immigrant Latin American women in Spain, which influence the adherence of the subjects to cultural assimilation techniques. Assimilation is an acculturation strategy where individuals reject the culture of origin in an attempt to fully incorporate themselves into the culture of the host society. Rejecting the Latin American culture through practices and discourses is a way of protecting oneself against the systematic racism experienced in the European territory, as well as a way of getting closer to the white privilege of natives. The methodology used has been qualitative through an intersectional analysis with a gender perspective of semi-structured individual interviews carried out with ten Latin American women immigrants in Spain. In conclusion, on one hand, it is verified that the integration discourses produced by the European institutions have been incorporated by the immigrant subjects, often being interpreted as a duty of assimilation or adaptation that would imply the rejection of the culture of origin. On the other hand, it is also recognized that, simultaneously, women put into action multiple processes of agency and empowerment during their migration journeys.
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La impugnación administrativa en la nueva ley migratoria chilena
(Pontificia Universidad Católica del Perú, 2022-11-24) Harris Moya, Pedro
The entry into force of the Law No. 21325 in Chile in 2021 has not only reformed judicial review in matters of migration and foreigners, it has also introduced significant modifications to administrative appeal, under the application of basic administrative laws. Apparently, this law has increased the effectiveness of such claims if they are exercised against nonexpulsive acts (having established their compatibility with other appeals and, likewise, the suspension of the effects of the contested acts) and excluded the application of administrative appeals against an expulsion measure. However, this first interpretation can admit other interpretations. The administrative appeal against non-expulsive acts may impose restrictions on the rights of the claimant, in line with certain interpretative criteria developed by the case law in Chile. Likewise, the ineffectiveness of such claims against expulsive acts may be corrected, in accordance with the constitutional guarantees regarding the exercise of these mechanisms.
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Notas sociojurídicas sobre el alcance del voto migrante en la ciudad de Buenos Aires
(Pontificia Universidad Católica del Perú, 2022-11-24) Penchaszadeh, Ana Paula; Arlettaz, Fernando
Since 1987, migrants residing in the city of Buenos Aires have had the right to participate in local elections. The city’s Electoral Code, approved in 2018 and applied for the first time in the 2021 local elections, changed the regime of voluntary registration in the electoral register to one of automatic registration. This change not only increased the number of foreigners authorized to cast the vote, but it was also accompanied by a significant growth in migrant electoral participation. This article projects an analysis at three different levels. Firstly, it addresses the historically determined relationship between nationality, residence and access to the political community, with special emphasis on the exercise of political rights by migrants in the Argentine context. Afterwards, it considers the legislative and institutional transformations that, since the entry into force of the new Electoral Code, have entailed a transformation of the political-electoral role of the migrant group in the city of Buenos Aires. Finally, it analyzes some of the effects of automatic registration on the electoral behavior of the migrant group, trying not to lose sight of the composition and internal dynamics of this population as possible explanatory patterns of its electoral behavior
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Limitación en Chile de la emigración de las madres custodias junto a sus hijos y/o hijas: ¿una exigencia del principio del interés superior?
(Pontificia Universidad Católica del Perú, 2022-11-24) Mondaca, Alexis Alberto
The purpose of this article is to study the limitation that is observed in Chile concerning the possibility of custodial mothers to emigrate. The above, in the cases referring to requests for judicial authorizations about emigration abroad of the referred mothers, which are planned to be carried out in the company of their children and/or daughters. It is stated that such emigratory movements may be the source of a series of benefits from the point of view of the principle of the best interest of the child or adolescent. In addition, it is also stated that the restriction of the aforementioned emigration may cause a violation of the principle of the free development of personality of the custodial mothers. Finally, the possibility of establishing a communication regime with the non-custodial parent which contemplates the use of modern forms of communication is analyzed.

Derecho PUCP. Núm. 89 (2022)

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