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International Review of Law and Economics 23 (2004) 345364

Cooperation in the shadow of regulatorycompetition: the case of asylum

legislation in Europe

Sgolne Barbou des Places a, Bruno Deffains b,a European University Institute, Florence, Italy, and Facult de droit et Sciences Economiques,

Universit Nancy 2, Franceb CREDES, Facult de Droit et Sciences Economiques, Universit Nancy 2, 13 Place Carnot, c.o. #26,

c.o. 26-13 Place Carnot, Nancy Cedex 54 035, France

Received 15 December 2002; accepted 20 July 2003

Abstract

Traditional analysis considers that the granting of protection to refugees is an international public

good, and thus explains both the heterogeneousness in refugee protection in Europe and the spiral that

has hardened the EU Member States asylum legislation from the mid-1980s onwards as the result of

free riding in the provision of the good. In contrast, the paper considers that the heterogeneousness

in refugee distribution is best explained by the joint product model and that the spiral of restriction

is best explained by the common pool resource model and regulatory competition theory. The paper

explains, and gives empirical evidence of the emergence and development of a competitive game

among the EU Member States, and shows the result and the consequence of this upon cooperative

attempts among States.

2003 Elsevier Inc. All rights reserved.

JEL classification: K3

Keywords: Asylum; Refugees; Regulatory competition; Joint product; Common pool resource

1. Introduction

The current establishment of a European common asylum policy raises two main ques-

tions. The first question is: How can an equitable distribution of asylum seekers among EU

Corresponding author. Tel.:+33-3-83-19-26-52; fax: +33-3-83-19-25-33.

E-mail addresses: [email protected] (S.B. des Places), [email protected] (B. Deffains).

0144-8188/$ see front matter 2003 Elsevier Inc. All rights reserved.

doi:10.1016/j.irle.2003.07.001


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346 S.B. des Places, B. Deffains / International Review of Law and Economics 23 (2004) 345364

Member States be ensured? It is the burden sharing objective. The second question is: How

can a European legislation that is fair to asylum seekers and refugees be enacted, i.e. that

provides protection in accordance with the standards of the 1951 Geneva Convention on

refugees? More generally, the issue at stake is the organisation of cooperation among Statesthat, for many decades, have unilaterally decided and implemented their national asylum

policy.

To encompass all these issues, it is necessary to have a complete view of the asylum

policies in the EU before the Treaty of Amsterdam 1997, i.e. before the EU Member States

established a European asylum regime. In particular, two striking phenomena must be

explained. First, the unevenness in refugee distribution and protection among EU Member

States. It is crucial to determine the causes of the heterogeneousness in asylum policy and

to evaluate whether, when it leads to a situation of unequal distribution in Europe, it is

problematic or compatible with the development of a European asylum policy. Second,

we must explain the causes, and evaluate the result and effects, of the spiral of restriction

that characterises the evolution of Member States asylum legislation from the mid-1980s

onwards. All of the EU Member States have introduced a wide range of procedures relating

to the arrival, admission and entitlements of people wishing to claim refugee status in their

territory. They have enacted restrictive legislation, preventing asylum seekers from entering

into national territory and modified the procedural guarantees for the asylum application

examination in order to restrict them. In addition, they have withdrawn social welfare and

legal aid entitlements, limited the right to work and to education for asylum seekers and

their families. Finally they have developed measures to encourage the return or repatriation

of asylum seekers to their country of origin.While this evolution has been well documented in legal literature (Bouteiller-Paquet,

2001; Crpeau, 1995; Jeannin, Meneghini, Pauti, & Poupet, 1999; Joly, 1999; Noll, 2000),

there is a dearth of analysis using a law and economics approach. The rare economic anal-

ysis that study the asylum issue, generally in an international perspective, assume that the

provision of refugee protection is an international public good (see in particular Suhrke,

1998), and thus implicitly admit that both the heterogeneousness of asylum seekers dis-

tribution in Europe and the spiral of restriction in asylum legislation are the result of free

riding in the provision of the good. Yet empirical evidence does not confirm such theoreti-

cal expectations deriving from the public good characterisation. For this reason this paper

mobilises the joint product and the common pool resource models, together with regulatorycompetition theory, in order to explain the heterogeneousness in refugee provision and the

spiral of restriction. The paper deliberately proposes a law and economics perspective, and

thus stresses the consequences of legislative amendments on the choice of rational actors

via their impact on the costs and benefits of decisions.

The paper builds upon the chronological evolution of the EU Member States asylum

policy. Section 1 shows that after the Second World War, European States had generous

asylum policies and welcoming legislation, and the heterogeneousness in the reception

towards refugees among Member States was not considered problematic. This situation can

only be explained if we consider that the good, which is to provide protection to asylum

seekers and refugees, is not an international public good but a joint product, i.e. States couldexpect private benefits from hosting and protecting asylum seekers and refugees. In addition,

the joint product model permits an understanding of the formation of an alliance. But, as


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S.B. des Places, B. Deffains / International Review of Law and Economics 23 (2004) 345364 347

Section 2 explains, by the mid-1980s, the number of asylum applications dramatically

increased and there was a shift in asylum policies. States started competing to prevent

asylum seekers from accessing their territory and claiming refugee status. As benefits have

decreased and costs increased, States have started competing for a new good: to grant as littleprotection as possible. The previous alliance was thus replaced by a process of regulatory

competition that can be interpreted using the common pool resource model. We therefore

explain the spiral of restriction, and show the excessive efforts by the EU Member States,

in accordance with the common pool resource model. We then compare the theoretical

explanation with empirical evidence and show how competition was started and developed.

In Section 3 we evaluate the result of the competitive game and conclude that it is negative.

In Section 4 we discuss the possible forms of cooperation among the EU Member States

likely to replace or limit the negative competitive process. We show that the many attempts

to set out cooperative schemes between the EU Member States have failed in the shadow of

competition. Then we turn to the current development of the (post-Amsterdam) European

asylum policy and evaluate what the conditions for efficient cooperation in the field of

asylum could be. Finally, we reach some general conclusions with regards to our central

questions: What is the optimal asylum policy both for asylum seekers and Member States

in the EU and how should such an optimal policy be established?

2. Heterogeneousness in the provision of refugee protection: an explanation using

the joint product model

There have always been important differences among the EU Member States in the

accommodation and protection of asylum seekers and refugees. Many factors explain this

unevenness in refugee distribution. Geographic proximity to the region in crisis, the asylum

seekers perception of the States goals, ethnic or family ties (see Bocker & Havinga, 1998).

The differences in asylum legislation also influence the distribution of refugees and create

differences in burden. However, the majority of refugee law specialists explain the uneven

distribution of refugees in Europe by free riding strategies, thus assuming that the provision

of protection to refugees is an international public good. In contrast, we deem that the

inequitable distribution is the result of differences in legislation that come, as the joint

product model explains, from the existence of private benefits in providing protection torefugees.

2.1. Benefits of providing protection to asylum seekers and refugees

Throughout the 20th century, and more specifically since the end of the Second World

War, States have devoted a considerable amount of effort and resources to the task of

providing refugees with international protection. Their purpose has been twofold: first, to

safeguard the lives and liberty of people whose basic rights have been threatened in their

country of origin; and second to safeguard their own interests by ensuring that large-scale

population movements are managed in a predictable manner and in accordance with agreedprinciples (UNHCR, 1997). This description can help understand the goals of States which

provide refugee protection. Such provision, whether it takes the form of directly granting


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asylum or the form of voluntary contributions to refugee agencies, can be conceptualised

as producing two kinds of benefits for States: security and altruistic benefits.

Security benefits can be expected because once displaced beyond their national borders,

asylum seekers and refugees may constitute a potential threat to other States. According toAcharya and Dewitt (1997), security comes from the ability to control entry and exit so

that the core values, institutions and processes of that system are not threatened. Increased

security can be regarded as the principal benefit of managing the population of asylum

seekers and granting asylum, because the accommodation of refugees potentially reduces

the risk of refugees spreading the very conflict from which they are fleeing.

Together with direct security benefits,1 States can also expect altruistic benefits. It is

generally acknowledged that altruistic externality arises when the donor derives utility

from knowing that less fortunate people are better off (Sudgen, 1982). In the field of

asylum, such altruistic benefits result mainly from the incidence of provision for refugees

on the reputation of the country. The image of a State that is protective of human rights

is one of the major benefits that a State can expect when it develops a generous asylum

policy. Germany is a significant example, where the right to asylum was incorporated into

the Constitution in order to compensate for the shame of the Second World War acts. Suhrke

(1998) also explains Western countries involvement in resettlement plans in the aftermath

of the Second World War by their willingness to gain a good reputation.

The analysis of the benefits of regulating and granting asylum permits the discussion of

the nature of the good (i.e. providing protection to asylum seekers and refugees). As they

consider that security and altruistic benefits are non-excludable and non-rival, the majority

of specialists argue in favour of an international public good. According to Suhrke (1998),if one State admitted refugees, the others would benefit from the greater international order

that ensued regardless of their own admissions, so refugees provision is an international

public good from which all States benefit, irrespective of which country receives refugees.

The consequences of this interpretation are important. Firstly, according to public good

theory, cooperation produces positive-sum benefits which in turn create the will to share the

burden among actors as the benefits of the contribution exceed the costs of the contributors.

At an international level, cooperation should produce a level of provision of a valued public

good which individual States cannot attain on their own. Public goods theory thus suggests

that we should expect a significant under-provision of international public goods in the

absence of central taxation and enforcement authorities. The problem exists because it isin the interest of an individual member to free ride on the efforts of others. Such arguments

have been applied in the NATO context to explain not only the motives for cooperation on

national defence but also to demonstrate that the members of an alliance have an incentive to

cheat by free riding on the common security provided by other members. Interestingly, most

studies adopt a similar vision for asylum and consider that by improving the well-being of

those in need, provision for refugees yields non-excludable and non-rival benefits for the

1

Of course these benefits have to be balanced with indirect security burden as defined by Milner (2000) thatconcern the impact of refugees on distributive justice and political opportunity within a given State. Refugees

may threaten governments and social harmony because they create serious financial and social burdens on the

receiving nations.


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community of nations. Free riding is logically expected because States rely on the payments

of others by withholding some or all of their estimated expenses.

Secondly, another consequence can be anticipated according to the exploitation

hypothesis given by Olson and Zeckhauser (1966). According to their argument, it isceteris paribus the larger States whose action will make more of a difference to the total

common effort than the action of small States. As a result, larger States will have an incen-

tive to contribute a disproportionate share to the overall effort. We will therefore observe

a systematic tendency for exploitation of the big by the small.2 In the case of refugees, it

can be anticipated that rich nations shoulder a disproportionate burden of the good for poor

nations in terms of the share of the GDP allotted to provision for refugees.

Last, public good theory predicts sub-optimal public good reimbursements because a

contributor will not account for the spill-over benefits that its contribution confers on others.

2.2. From public good theory to joint product model

We now have to assess these theoretical expectations in light of empirical evidence. Is

the international provision of protection for refugees a public good?

The rare contributions that use the OlsonZeckhausertest show that the granting of asylum

fails to conform to the pure public good model. They indicate that if one ranks the number

of annual asylum applications in proportion to the size of a Member States population or

GDP, one finds that the top positions, i.e. the highest burdens, are predominantly taken by

smaller States (Thielemann, 2002). Using a Spearman rank-correlation test, Betts (2002)

sought to ascertain whether the GDP is rank correlated with the level of burden borne. Theidea is that if there is a positive and significant correlation between the GDP and the asylum

provision as a proportion of the GDP amongst the EU Member States, there is exploitation

of the big by the small such that the EU asylum provision is an international public good.3

But in the 1990s, there was no empirical support for the exploitation hypothesis. Statistical

insignificance suggests that the level of free riding by poorer States on wealthier States is

limited and that provision for refugees cannot be described as a pure public good. The pure

public good benefits thus fail to explain why some of the EU Member States unilaterally

provide a disproportionately higher level of asylum provision than others, despite being

smaller in terms of their GDP. Far from free riding, several economically smaller States

such as The Netherlands and Denmark provide proportionally high levels of asylum, whilesome larger States, such as Italy and France, bear far less of the burden (Betts, 2002).

How can such a situation be explained? The most convincing argument is that the pro-

vision of protection is more likely to yield some private benefits (reputation of a major

promoter of human rights and/or security benefits when the contributor is near the re-

gion of instability). In light of the assessment of private benefits it makes sense to use

the joint product theory developed by Sandler and Hartley (2001) whereby activities are

2 In an effort to confirm this hypothesis, a number of studies have analysed the correlation of defence spending

and GDP in the NATO context. They have shown that the United States, as NATOs largest State, has contributeda disproportionate share of the burden for common defence.3 The author assumes that the EU asylum provision is a normal good, for which the will to provide increases

with the GDP.


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characterised as yielding both pure public good benefits for the community as well as con-

tributor specific benefits. This theory helps explain why the collective action implications, as

regards the provision of protection for asylum seekers and refugees, differ from those result-

ing from the pure public goods scenario. Disproportionate burden sharing need not occur,so the burden cannot simply be correlated with an income measurement. If a poorer State

receives a large amount of nation specific benefits, such as status enhancement, then it may

carry a relatively heavy burden. Furthermore, sub-optimality will be attenuated as the share

of nation specific benefits increases. If, for example, all derived benefits are nation specific,

then an efficient allocation will be achieved since the benefits will match marginal costs. 4

If we decide to apply the joint product model to the asylum issue, we may therefore

expect an inequitable distribution of refugees in the European Union as the private benefits

differ from State to State. We may also understand that the country closest to a particular

conflict from which refugees emanate has the greatest interest in stabilising the crisis through

the accommodation of refugees (e.g. the case of Austria during the Balkan crisis). There

is also substantive evidence for the claim that a countrys willingness to host refugees is

positively related to its more general commitment to norms such as human rights protection

and solidarity (Thielemann, 2002). This is well evidenced by the fact that the Scandinavian

States and The Netherlands have, for many years, provided disproportionately high levels

of refugee protection.

Thus, we deem that the heterogeneousness of provision of refugee protection among

Member States and the correlative uneven distribution of refugees among them is the result

of the difference in specific benefits rather than the result of free riding. The joint product

approach also explains why, in the decades following the Second World War, the gamewas an alliance: Member States were spontaneously contributing to the general aim of

providing protection.

Yet the joint product model does not offer an analytical framework that is capable of

explaining the substantial changes that took place in the mid-1980: a spiral of restrictions

in refugee legislation appeared. We propose to use the literature on common pool problem

to explain this phenomenon.

3. The spiral of restriction in refugee protection: a common pool problem

The content of legislation not only influences the differences in the burden among the

EU Member States but also impacts on the nature of the game. As the conditions for

refugees reception and protection are not identical in the Member States, asylum seekers

may choose their destination State on the basis of a preference for the country that provides

better treatment: this is the asylum shopping strategy. We now propose to provide evidence

4 It is important to note that the portion of the public ingredient found in joint products depends on the ratio of

excludable benefits (i.e. State specific benefits) to the total benefits. In addition, joint products may give rise to a

coordination game in which one of the Nash equilibria has all players contributing to the collective action. If the

portion of jointly produced private benefits is considerable enough with regard to the total outputs, contributing tothe activity may even become the dominant strategy. This has implications for the forming of alliances if alliance

design allows potential allies to take advantage of ally specific benefits as well as excludable public benefits. For

example, NATO burden sharing behaviour is generally considered optimal if nation specific benefits are integrated.


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and explain the development of a process of regulatory competition among the EU Member

States asylum legislation.

3.1. The origins of regulatory competition

The first question is: Why did a process of competition start among Member States and

lead to a spiral of restriction in refugee protection? As the costs and benefits are central to

our analysis, we argue that the change in asylum policies comes from the change in costs and

benefits of providing protection. First, benefits have significantly decreased. After the fall of

the Iron Curtain, altruistic benefits and reputation effects have decreased. The instrumental

use of the right to asylum granted to people fleeing persecution from communist countries

before the fall of the Iron Curtain turned out to be meaningless. In addition, all the EU

Member States have faced economic difficulties, recession and unemployment and the

benefits of hosting immigrants have dropped. Secondly, costs have increased because of

changes in migration trends. Asylum seekers who were traditionally European and skilled

migrants have been replaced by less skilled asylum seekers coming from other regions of

the world and of different ethnic origin. The costs of integration have thus increased.

But most of all, the costs have grown with the number of refugees within the territory.

The 1990s witnessed an eruption of conflicts that led to mass refugee movements, including

some within Europe itself (ex-Yugoslavia). Table 1 highlights this major change in asylum

seekers trends and the massive increase of asylum seekers in Europe. The number of asylum

applications in the European Union increased six-fold from the early 1980s to the early

1990s. However, this increase has affected Member States differently. From an EU total of5.7 million asylum applications in the period 19802000, Germany took 2.7 million alone,

Austria, Belgium, France, The Netherlands, Sweden and the United Kingdom accounted for

another 2.5 million while the other eight Member States dealt only with a million asylum

applications. Therefore, as every examination of an asylum application implies financial,

administrative and social costs, the opportunity cost for host countries became very high

(and probably superior to perceived benefits) during the 1990s.5 In addition, the budgets of

the government offices in charge of asylum procedures dramatically increased. In France,

for example, it increased from FF 52.9 million in 1988 to FF 142.9 million in 1990, and in

Germany from DM 143.5 million in 1992 to DM 486 million in 1993. According to Velling

and Woydt (1993), the average annual cost of an asylum seeker in Germany was DM 12,000to DM 15,000 at the beginning of the 1990s, 50% of which may be accounted for by way of

welfare benefits and 50% by way of the costs of accommodation and administration. If we

add the social and political costs that States bear when the number of refugees increases,

the marginal cost of asylum policy is certainly growing. Moreover, refugees have an impact

on distributive justice and they create serious financial and social burdens on the EU States.

As a consequence, the increase of costs has generated a change in behaviour. At this stage

a change appeared in the game played by the States due to the emergence of a new good.

The previous cooperative game has been replaced by a competition in legal procedure.

5 Following Jandl (1995) and Betts (2002), we consider that the actual number of asylum seekers is a more

accurate representation of the burden borne by a given State than any attempted estimates of expenditure levels

that could be derived from the available data.


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Table 1

Asylum applications in EU Member States 19802001 (UNHCR, 1999)

Austria Belgium Denmark Finland France Germany Greece Ireland Italy Luxembourg The

Netherlands

1980 9,260 2,730 70 n.a. 19,910 107,820 1,790 n.a. 2,130 n.a. 1,350

1981 34,560 2,290 120 20 19,860 49,390 2,240 n.a. 3,640 n.a. 1,590

1982 6,310 2,910 300 10 22,510 37,420 1,190 n.a. 3,140 n.a. 1,210

1983 5,900 2,910 800 20 22,350 19,740 450 n.a. 3,040 n.a. 2,020

1984 7,210 3,650 4,310 30 21,710 35,280 760 n.a. 4,560 n.a. 2,600

1985 6,720 5,300 8,700 20 28,930 73,830 1,400 n.a. 5,420 n.a. 5,640

1986 8,640 7,640 9,300 20 26,290 99,650 4,230 n.a. 6,480 n.a. 5,870

1987 11,410 5,980 7,590 50 27,670 57,380 6,930 n.a. 11,030 n.a. 13,460

1988 15,790 5,080 11,310 60 34,350 103,080 8,420 n.a. 1,240 n.a. 74,902

1989 21,880 8,110 5,280 180 61,420 121,320 3,000 n.a. 2,120 n.a. 13,900

1990 22,790 12,960 18,990 2,740 54,810 193,060 6,170 n.a. 4,830 n.a. 21,210

1991 27,310 15,170 12,910 2,130 47,380 256,110 2,670 30 26,470 n.a. 21,620

1992 16,240 17,650 20,070 3,630 28,870 438,190 1,850 40 6,040 n.a. 20,350

1993 4,750 26,880 16,480 2,020 27,560 322,610 810 90 1,650 n.a. 35,400

1994 5,080 14,350 7,990 840 25,960 127,210 1,300 360 1,790 n.a 52,570

1995 5,920 11,420 10,050 850 20,170 127,940 1,310 420 1,730 390 29,260

1996 6,990 12,430 7,390 710 17,410 116,370 1,640 1,180 680 260 22,170

1997 6,720 11,790 5,570 970 21,400 104,350 4,380 3,880 1,860 430 34,440

1998 13,810 21,970 6,080 1,270 22,380 98,640 2,950 4,630 11,120 1,710 45,220

1999 20,100 35,780 6,950 3,110 30,910 95,110 1,530 11,090 33,360 2,910 39,300

2000 18,280 42,690 10,350 3,170 38,590 117,650 3,080 14,800 14,000 630 43,900

2001 30,135 24,549 12,403 1,651 47,263 88,363 4,650 10,324 9,620 689 32,579


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3.2. A new good and a new game

Let us consider that there is a fixed number of asylum seekers and that asylum seekers

are costly for asylum countries.6 In that case, there is a good for which the EU MemberStates compete through the designing of asylum rules: to provide as little protection as

possible. It is important to note that this good is both rival and non-excludable. It is rival

because lowering the number of asylum seekers enjoying protection in one country tends

to increase the number of persons claiming protection in the other countries. The good

is non-excludable because no State can be excluded from enacting legislation that lowers

the level of protection granted, thus reducing the number of persons enjoying protection.

This implies that each country is able to influence the number of asylum applications

by changing its asylum legislation: by becoming more restrictive a country deters future

applicants. Therefore the identified good is an international common pool resource so that

the fundamental condition for regulatory competition is satisfied (Klliker, 2003).

We deem that this theoretical expectation is met in practice. In the mid-1980s, States

were responsive to asylum seekers preferences. They were convinced that asylum seekers

were comparing the legal protection offered throughout Europe and selecting the country

with the most generous asylum policy as a destination State. Yet, there are many obstacles

in the way of asylum shopping and not all asylum seekers choose a destination State on

the basis of the expected legal treatment (see Bocker & Havinga, 1998). But, if the reality

of the arbitrage among legal norms might be a weaker factor than expected, pressure on

law suppliers has clearly taken the form of fear of the arbitrage (Barbou des Places, 2003).

Analyses of public opinion, together with political declarations provide evidence of theconviction that protective legislation is an attractive policy. As a consequence, the real or

perceived threat of huge flows of migrants entering their territories gave Member States an

incentive to adapt their legislation following the example of their direct competitors.

The result was the emergence of a competitive game. We are not hypothesising perfect

competition but the process of regulatory competition in its dynamic sense, as rivalry among

jurisdictions (Deffains, 2001). The observation of the law suppliers actions shows evidence

of the States reaction function. Taking the example of France and Germany, Rotte, Vogler,

and Zimmermann (1996) first looked at national legal measures for asylum migration and

their actual effects on the partner countries. They wanted to find empirical evidence for

existing interdependence between asylum migration to France and Germany, respectively,which may be influenced by legal actions. They estimated two ordinary fixed-effects panel

models, the number of asylum seekers in each country being the endogenous variable. The

vector of exogenous variables included several indicators for socio-economic and political

positions. Potential spill-over caused by national legislation was modelled by including the

legal procedures of a country in the equation for the other one. As noted by the authors,

the most important finding is that the French law reforms in 1991 resulted in an increase

of asylum seekers coming to Germany instead. Despite its isolated nature, the study shows

6

This proposition is not incompatible with the fact that immigration of workers in principle increases the welfareof economies, due to the greater availability of a production factor, thereby shifting the supply curve to the right.

In fact, with high unemployment and structural strains on social budgets in Europe, we simply assume that the

costs could exceed the benefits of the reception of refugees.


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that there is considerable interdependence of asylum policies in the EU. National legislation

aimed at a further reduction in asylum migration contains a potential for devaluation races

in asylum laws among Member States using a beggar-thy-neighbour effect in this field.

This devaluation race was in fact Europe-wide. Unilaterally, each Member State triedto develop mechanisms aimed at dissuading asylum seekers from selecting it as their fu-

ture host country and thus at redirecting the flows of asylum seekers to their neighbours.

Member States deliberately used national regulations as a strategic weapon in international

competition in which gains in one country were at the expense of costs imposed on others.

Several factors provide evidence for this beggar-thy-neighbour attitude. First, the si-

multaneity of law amendments (Jeannin et al., 1999), that tends to reveal the interdependence

among national legislation. Second, there are striking examples of convergence within the

content of the legislation. Three sets of techniques, invented in one country and then copied

by the others, are particularly significant. The first took the form of sanctions imposed on

carriers transporting improperly documented passengers (Cruz, 1995). The second example

concerns the creation of international or transit zones in ports and airports. A third conver-

gent evolution in Member States legislation was their incorporation of two complementary

concepts: safe third country (Achermann & Gattiker, 1995; ECRE, 1995) and manifestly

unfounded application, measures that permit the limitation of the access to the status of

refugee, that justify the curtailing of the examination procedure, and that limit procedural

rights and guarantees. All Member States have imported the three techniques into their

national legal order. This is significant because all these measures clearly had the effect

of redirecting asylum seekers towards the competitors and/or other States. Member States

have designed diversion policies, and created a general market of deflection (Landgren,1999; Noll, 2000) as a result of their containment strategy. This effect is empirically

observable: when one State implements a measure that, for instance, establishes carriers

liability or enhances the safe third country technique, one, or several, other Member States

become the receptacle of the asylum seekers who change destination. Therefrom the chain

amendments can be observed during the 1980s, and 1990s (Barbou des Places, 2003;

Rotte et al., 1996).

4. The devaluation race as a consequence of regulatory competition

Following the common pool resource model, the race should produce a sub-optimal

outcome, and should lead to a tragedy in Hardins words. The competitive game in the

field of asylum conforms with the model and we propose, first to capture the dilemma by a

two-countries game in deterrence, then to provide empirical evidence of the negative result

of competition among Member States asylum legislation.

4.1. A two-countries game in deterrence

Let us consider States which have the competence and the ability to deter asylum seekers

by increasing the volume of administrative procedures, designated by a (i.e. norms regu-lating access to the national territory, rules organising the access to legal protection and

legal rights and subsidies conferred upon asylum seekers and refugees). We assume that


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the greater the a the higher the bureaucratic costs to manage the system of reception and

protection of refugees. Restrictive and non-liberal asylum policies imply costs related to

border controls and strict asylum application examination. Note that a restrictive asylum

policy is more costly than a liberal one. As a consequence, if a State prefers more a, it willbe less attractive to asylum seekers but the costs per asylum seeker will be higher. Suppose

moreover that asylum seekers have to find refuge in one of the competing States: when a

country chooses a, it does not take into account the fact that its policy imposes costs on

other States. In other words, an increase in a imposes a negative external cost on the other

States. The consequence is that each country will opt for a too restrictive asylum policy and

supra-national coordination may be justified.

To demonstrate this phenomenon, imagine a world divided into two countries, 1 and 2.

For the reasons presented above, the countries spend resources on legal procedures in order

to process asylum applications.7 Denote aj A as the level of legal procedures chosen by

country j, where A denotes the set of possible legislations. a can also be interpreted as the

costs of legal procedures. Suppose that the welfare (of citizens) of countries 1 and 2 can be

represented by V1(a1, a2) and V2(a1, a2), respectively. Thus, the level of procedures chosen

by country 2 has an impact on the welfare of country 1 (and vice versa). Following Marceau

(1997), we suppose that Vj(aj, ak) is strictly concave in aj and that (Vj/ak) < 0, j= k.

This implies that the legal procedures chosen by the States are perfect substitutes. For this

reason, we can observe in Fig. 1 that an indifference curve for country 1 (2) is necessarily

concave to the horizontal (vertical) axis. Moreover, the fact that procedures taking place in

country kaffect negatively the welfare of jurisdiction j can be rationalised by the following

argument: a more restrictive legislation in kcan hurt (in terms of direct or indirect securityburden) j because refugees find it relatively more profitable to settle in j.

The problem of country 1 is maxa1 V1(a1, a2). The first- and second-order conditions

of this maximisation problem are V1(a1, a2)/a1 = 0 and 2V1(a1, a2)/

2a1 < 0, re-

spectively. This defines a reaction function for country 1: a1 = f1(a2). For country 2, the

analogue to the problem of country 1 leads to a reaction function a2 = f2(a1). A Nash

equilibrium is then a pair (aN1 , aN2 ) such that a

N1 = f1(a

N2 ) and a

N2 = f2(a

N1 ). This is

depicted in Fig. 1 in the (a1, a2) space where the reaction curves are negatively sloped. The

Nash equilibrium pair (aN1 , aN2 ) lies at the intersection of the two reaction curves and is

denoted by N.

This simple case shows that the Nash equilibrium level of the actions is higher thanthe Pareto efficient level. In the context of asylum legislation, this means that the Nash

equilibrium level of legal procedures could be higher than the Pareto efficient one. This can

be seen in Fig. 1, where the countries indifference curves through the Nash equilibrium

are depicted (denoted by u1 and u2, respectively). Taking into account the shape of the

indifference curves, it is possible to observe that all the points in the hatched area to the

southwest ofNwould improve the situations of both countries. Hence, the Nash equilibrium

is not Pareto efficient: it entails legislation that is too restrictive.

7 The costs of legal procedures have to be distinguished from the costs of accommodation of refugees. These

last costs could be high but they concern only accepted refugees in a Member State. As we are interested in asylum

seekers we focus on the administrative costs of considering the applications.


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Fig. 1. Nash equilibrium.

The argument behind the result of legislation which is too restrictive is that a State, when

choosing its level of procedures, trades off its own benefits (reduced number of refugees and

increased indirect security) and costs (forgone resources, perhaps reduced direct security),

but does not take into account the fact that this has a negative impact on the welfare of the

other States. There are costs to other countries that are not internalised. Finally, according

to the model, the countries, in the absence of global regulation (or collective action) earn

less than they potentially could if resources were properly managed.

4.2. Evidence of a race to the bottom

Legal scholars have dwelt on the constant and convergent restriction of legal rights con-

ferred upon asylum seekers in the EU Member States. They have described a new asylum

regime that reflects the emergence of a new paradigm, from a regime implementing a

selective but integrative policy of access and full status recognition paired with full social

rights, to one which maximises exclusion, undermines status and rights and emphasises

short-term stay for refugees (Joly, 1999). This description indicates the existence of a race

to the bottom. First, the actions developed by Member States have jeopardised the security

of potential and actual asylum seekers (UNHCR, 1997). Through the use of the safe third

country and manifestly unfounded application techniques, asylum seekers are bounced backand forth between countries until one finally accepts to host them. Lengthy procedures are

also problematic because before their asylum application is examined and a status granted


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or refused, asylum seekers are left in a legal limbo, sometimes without subsidies. This

situation creates difficulties for asylum seekers and for the host State.

Second, in comparing States goal (to provide as little protection as possible) with the

instruments used to achieve it (restrictive procedures), one discovers that the result issub-optimal. Although the array of restrictive measures may have slowed the inflow of

asylum seekers, it has certainly failed to stop it. Moreover, in attempting to limit the num-

ber of asylum seekers arriving and remaining on their territory, these States have actually

damaged their own interests (UNHCR, 1997). The costs of bureaucracy have proven con-

siderable and States, by putting the emphasis on migration control and border protection,

have used a very high quantity of human resources (customs, police, civil servants in charge

of asylum application examination). The systems developed to reduce costs have in fact

generated new costs. In addition, during the competitive process, States have frequently

amended their legislation, sometimes every year. We must underline the costs of modifying

legislation (costs of legislative procedure, time spent by Members of Parliament and civil

servants involved, costs of implementation of the new law, etc.).

A third, and problematic, aspect of regulatory competition is the (non) compliance of

certain legislation with international obligations. All Member States are bound by the pro-

visions of the Geneva Convention, the 1967 New York Protocol and the European Conven-

tion on Human Rights (see Bouteiller-Paquet, 2001). In order to redirect asylum seekers

towards other countries, States have enacted measures which are not arguably in full con-

formity with international norms (Crpeau, 1997). These potential encroachments upon the

spirit of the international provisions are costly for States international reputations because

part of their international image and benefits gained from hosting refugees is to be able totout themselves as protectors of human rights. In addition, when low-income countries close

their borders to refugees, they tend to justify their actions by referring to the precedents set

by the more affluent States. Last, the settings of containment measures can be challenged

before national courts and important case-law indicates that States face internal criticism.

Finally, the procedures set out by States have created side effects. The restrictive asy-

lum practices introduced by many of the industrialised States have converted what was a

relatively visible and quantifiable flow of asylum seekers into a covert movement of irreg-

ular migrants that is even more difficult for States to count and control (UNHCR, 1997).

There is also widespread agreement that in many cases, keeping asylum seekers out has

had the side effect of allowing for the development of networks of migrant smugglers (seeGhosh, 1998; Salt & Hogarth, 2000). As a result, States are obliged to reinforce proce-

dures and to allocate more human resources in order to fight against smuggling networks,

and abuses of their asylum systems, which constitute significant, indirect, bureaucratic

costs.

5. European cooperation and efficiency at solving the race to the bottom problem

The game is not static and institutional solutions generally emerge to solve the collective

action problem. More precisely when the interaction among the users of a common poolresource is indefinitely repeated, the outcome does not have to be a tragedy but might be

optimal as demonstrated by the folk theorem (Gibbons, 1992). When transaction costs are


14/20


low, such self-emerging institutions imply community building, information gathering or

sanctioning devices.

In practice, different forms of cooperation have emerged in the field of asylum legislation

but the many obstacles that are met can explain the recently increasing role of action at theEuropean level. We propose to first explain the development and result of the spontaneous

cooperation of the early 1990s. Then we evaluate the post-Amsterdam evolution and the

progressive establishment of a centralised cooperation.

5.1. Failed cooperation in the shadow of competition

Numerous norms enacted in the early 1990s show evidence of a spontaneous and decen-

tralised cooperation among the EU Member States. They reflect a common will to achieve

two entangled goals: to limit the asylum shopping phenomenon that generates regulatory

competition and to substitute burden sharing mechanisms (i.e. collective action) for unilat-

eral strategic behaviours.

The Schengen Implementation Convention (SIC) and the 1990 Dublin Convention that

determined the state responsible for examining the asylum applications lodged in one of the

Member States of the European Community were the first moves towards limiting the com-

petitive process. The goal of the SIC and Dublin Convention was to establish mechanisms

which would replace the asylum seekers opportunity to choose his/her destination country

with a legal, State-oriented determination. To this aim, the Dublin Convention laid down

criteria that determined which contracting party would be held responsible for processing

the asylum application. By restricting a refugees ability to choose a destination State, Statesaimed at suppressing asylum shopping and thus the fuel for competition among legal norms.

During the same period, Member States started negotiating and discussing burden shar-

ing mechanisms (see Barbou des Places, 2002; Noll, 2000). Since 1992, they have adopted

various measures, pushed by active and overburdened States (mainly Germany and Swe-

den) that try to establish procedures or mechanisms favouring an equitable distribution of

asylum seekers. It is clear that the burden-sharing objective can be understood as a strategy

supported by over-burdened States in order to rid themselves of an excessively large number

of protection seekers, but it can also be viewed, instead, as a means to maintain and restore

the States admission capacity in the long term (Hailbronner, 2000; Harvey, 1998). Burden

sharing plans, particularly in the field of asylum, were praised because they are an insurancemechanism (Suhrke, 1998) that can help States increase or maintain the protection granted

to asylum seekers.

The evaluation of these cooperation schemes is not easy. Some scholars stress the fact

that Member States have used common norms to legitimise the shift towards restrictive

asylum legislation. Referring to the two-level game metaphor, Vink (2001) concludes that

governments have pursued restrictive policies that are perhaps not very different from those

that they would have pursued in the absence of European cooperation. Although they could

avoid accusation more easily by strategically profiting from the European playing field,

especially by shifting the blame onto Europe for the tightening of their asylum policies. By

acting at an international level, States have avoided certain national judicial constraints andhave got around opposition from parliamentarians and NGOs supporting migrants rights

(Guiraudon, 2000). Thus, in terms of costs and benefits (mainly the costs induced by the


15/20


loss of a good reputation and tensions within constituencies), collective action can appear

to be slightly positive.

Yet, our analysis is that cooperation failed because the expected results were not met. The

Dublin Convention has not suppressed asylum shopping and faces fierce criticism: lengthyprocedures for determining which State is responsible for processing the asylum claim,

unclear criteria, and long periods of uncertainty, all appear to be problems endemic to the

system. From the point of view of costs, the Dublin system of responsibility allocation and

transfer of asylum seekers was costly because it has increased human and technical resources

requirements. Moreover, indirect costs of clandestinity have increased since asylum seekers

prefer to disappear rather than be transferred from one country to another. Finally the Dublin

system has not curtailed asylum shopping.

Concerning the burden sharing aim, the results are not positive either. States never agreed

on a common binding rule concerning uniform admission, return, or rights granted to dis-

placed persons. While the early 1990s proposals were ambitious and suggested systems

of people sharing, i.e. mandatory distribution of asylum seekers among Member States,

the measures that were finally adopted have abandoned the system of allocation of people.

They establish a very light and non-binding system. Logically, the unevenness in the burden

borne by Member States did not diminish during the 1990s. In fact, the Dublin mechanism

does not provide Member States with any more protection against inequitable distribu-

tion. Hailbronner (2000) rightly concludes that the Schengen and Dublin Conventions have

established a special type of burden shifting rather than burden sharing (see Lavenex, 1999).

After more than a decade of cooperative attempts, it is impossible to attest that a shift

from costly and inefficient asylum policies to a coordinated and satisfactory collective ac-tion has occurred. This result has several explanations. First, there is a problem of collective

action insofar as cooperation benefits are endangered by the remainder of competition

opportunities. Indeed, Member States face a paradox. On the one hand, they have incentives

to organise burden sharing schemes at the European level because it flows from their be-

longing to the EU (and progressive loss of competence with regard to border controls) that

they progressively lose possibilities to insulate themselves against inflows of asylum seek-

ers entering their territory. At the same time, they are losing capacity to compete because

each time a common norm is enacted another part of asylum law is pacified and removed

from the ambit of interstate competition (Noll, 2000). In other words, unilateral actions and

competing strategies become more and more costly as they have an impact on other fields ofEuropean integration (Barbou des Places, 2002). On the other hand, Member States have not

transferred all competence to the EC. To a certain extent, they retain the capacity to insulate

themselves and/or to successfully compete. In the absence of a harmonisation process, they

may compete with their neighbours by maintaining different degrees of legal protection.

Countries that receive few asylum seekersgenerally countries offering the lowest level

of protectionmight be dissuaded from participating in cooperation if they believe that

unilateral action is less costly than mandatory burden sharing schemes.

Secondly, States have disagreed about how to deal with the collective action problem.

The intersection of collective action problems and problems of heterogeneous interests is

difficult because both call for solution strategies that are partly contradictory. In order tosolve a problem of collective action, it is useful to extend the range of cooperators so that

fewer and fewer actors can potentially free ride. In contrast, in order to solve problems of


16/20


interest heterogeneousness, it is useful to limit the range of cooperators. Heterogeneousness

canbe contained through the exclusion of dissenters. In fact, the best combination is achieved

by a viable balance between inclusiveness and exclusiveness. Cooperation is relatively

difficult to realise if the minimum sized coalition is fairly large and if cooperation makesnon-cooperation more attractive to outsiders (Schelling, 1978). If all States prefer all other

States to cooperate but each State individually prefers to defect, non-cooperation is the

dominant strategy and the collective equilibrium outcome conforms to the prediction of the

regulatory competition game.

Unsurprisingly, as spontaneous and decentralised cooperation proved to be inefficient,

States have favoured centralised action to organise cooperation. The Treaty of Amsterdam

1997, demonstrates the Member States intention to establish real and sustainable cooper-

ation.

5.2. Towards centralised action in the post-Amsterdam era

In the Treaty of Amsterdam, States have transferred important competence to the Euro-

pean Union level on several matters concerning asylum and refugee law. Since 1999, the

European institutions have a very important legislative activity and they enact numerous

measures in the field of asylum. Although the process of setting the European asylum pol-

icy is still very young and in progress, we interpret the current legal developments as clues

of a new tendency, whereby Member States try to set out a soft but institutionalised and

centralised cooperation aiming at replacing the previous regulatory competition.

One of the lessons taught by the 1990s cooperative schemes is that cooperation can beefficient only if it tries simultaneously to tackle the causes of regulatory competition and to

organise centralised burden sharing. On the first point, an evolution is already perceptible.

The European institutions have enacted or proposed important norms (directives) that all lay

down minimum standards. They deal with the reception of the applicants for asylum in the

Member States, with the asylum procedures, with the qualification and status of refugees

and with temporary protection granted to displaced persons. These norms all purport to

approximate the national legislation with the explicit aim to suppress or reduce the asylum

shopping strategy. Harmonisation corresponds thus to a first step of cooperation, that Noll

calls norm sharing (Noll, 2000). In addition, by accepting harmonisation and laying down

minimum standards, Member States agree on a limitation to their competitive and strategicde-regulation capacities. By approximating their legislation and recognising equivalent

rights to asylum seekers, they pacify the harmonised areas from the ambit of regulatory

competition.

The European cooperation differs from the 1990s system for a second reason. It aims at

establishing centralised burden sharing. In the frame of the Freedom, Security and Justice

Area developments, the Council has received competence to enact measures promoting a

balance of efforts between Member States in receiving refugees and displaced persons. Since

2000, two important norms have been enacted. The first one is the creation of a European

Refugee Fund in September 20008 and the second if the Directive of 20 July 2001 on

minimum standards for giving temporary protection in the event of mass influx of displaced

8 Decision 2000/56 of September 18, 2000, OJ 6/10/2000.


17/20


persons and on minimum measures promoting a balance of efforts between Members States

in receiving such persons.9 The European Refugee Fund Decision favours a fiscal burden

sharing system by creating mechanisms of financial compensation to burdened States. The

Fund will finance actions relating to conditions for reception, integration of the personsin the host society and repatriation. Progressively, the subsidies will be allocated to the

State bearing the major costs of hosting protection seekers. Despite its limited budget, the

Fund represents a substantive change insofar as States have agreed to institutional financial

solidarity. As for the Temporary Protection Directive, it is an attempt to set out a people

sharing mechanism under the Councils supervision. Both norms represent a significant

attempt to deal collectively and comprehensively with the asylum dilemma by acting on the

causes of regulatory competition (minimum standards), and by promoting complementary

measures of centralised burden sharing, both for people sharing and for fiscal burden sharing.

A third difference with the 1990s cooperation is the role of European institutions. In

particular, the Commission plays a central role, as it proposes and promotes the development

of new European legal instruments (harmonisation directives in particular). In addition,

it plays a significant role in comparing national legal asylum systems, identifying and

promoting the adoption at the European level of what it considers to be the best practices

with regards to providing protection to asylum seekers and refugees.

Clearly, the current setting of a European asylum policy has important limitations. Har-

monisation is limited to the adoption of minimum standards leaving space for competition

among States. In addition, while the Treaty calls for the adoption of burden sharing instru-

ments, there is no time limit for the adoption of these measures, which is another flaw in

the system.Yet, despite the limitations, the current legal developments demonstrate the States will

to cooperate. Regulatory competition is unlikely to disappear but it might be progressively

framed by the action of the European institutions and could be absorbed by a political

competition for best norms inside the European political debate. In particular, we must note

the enactment by the Commission of a communication that promotes the use of the Open

Method of Coordination (OMC) in the field of asylum.10 This new governance method is

interesting insofar as it may complement the legislative works. If the OMC is put in practice,

States will have to agree on common objectives and guidelines, establish quantitative and

qualitative indicators and benchmarks. Then European guidelines will have to be translated

into national policies and States will have to organise periodic monitoring, evaluation andpeer review. The Commission will play an important role in the OMC mechanism as it

will be able to stimulate open and public debate on the national asylum policies, select and

promote best practices and oblige States to justify their individual actions. The Commission

will be able to make extensive use of the shame leverage in order to dissuade States from

implementing externalising measures that shift the asylum burden onto the other Member

States. We can thus observe that, progressively, a European asylum policy is taking shape,

that may substitute organised, institutionalised and centralised cooperation, for negative

regulatory competition.

9 Directive 2001/55, OJ 7/8/2001.10 Communication from the Commission to the Council and the European Parliament on the common asylum

policy, introducing an open coordination method, COM (2001) 710 final.


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6. Conclusion

The law and economics perspective adopted in this paper permits an understanding of

the very intense legislative activity in the field of asylum in Europe from the mid-1980sonwards, and the generalised shift from generous national asylum policies to restrictive

and deterrent asylum legislation. It also explains the difficulties met by the EU Mem-

ber States in setting out efficient cooperative schemes in the 1990s. The paper finally

raises the issue of the efficiency of the European asylum policy as it is currently set

out.

To analyse these questions, we have focused on the nature of the good and departed

from traditional analysis that characterises the provision of protection to asylum seekers

and refugees as an international public good. We first showed that the provision of pro-

tection after the Second World War presented the characteristics of a joint product. As

States expected private i.e. nation specific benefits (both security and altruistic benefits),

the provision of protection was both spontaneous and heterogeneous in Europe. Then, by

the mid-1980s, as the costs of asylum seekers reception dramatically increased, the nature

of the good changed and States started competing for a common pool resource that was:

to provide as little protection as possible. We theoretically explained and gave empirical

evidence of the emergence of a competitive regulatory game that took the form of a spiral

of restrictions in the EU Member States asylum legislation. Positive analysis confirmed

that the result is a race to the bottom.

The issue now at stake is the organisation of cooperation among the EU Member States.

The risk of a race to the bottom is generally seen as a reason which may justify centraliseddecision making, including measures of harmonisation. So, can we expect that the current

establishment of the European asylum policy will lead to an efficient result and is it likely to

solve the destructive competition problem? We showed that the spontaneous cooperation of

the 1990s failed to limit negative regulatory competition. That is why the EU Member States

have chosen a first option to solve the problem: centralised cooperation. They transferred

important competence to the European institutions in the Amsterdam treaty and since that

time, European institutions have set out various mechanisms that aim to limit and frame

competition.

However, another option to deal with the race to the bottom problem merits further

exploration. After having considered the paper, it may be interesting to focus on the natureof the good. While current centralised cooperation organised by States aims to control the

result of the game, a normative proposal argues instead in favour of changing the nature

of the game. The idea would be to identify conditions that would allow for regulatory

competition to produce a positive result. We build upon the American debate on Delaware

and regulatory competition in the field of corporate law. Pro-competition scholars such as

Romano (1985, 1987, 1993) show that competition does not necessarily lead to a race to

the bottom and can instead produce a climb to the top. As for the EU, it seems interesting to

take into consideration Reichs view (1992) that a competition for better rules is possible,

i.e. competition that does not fall below a certain level. In the field of asylum, such a

change is difficult to operate, but we deem that reflection is worthwhile, that would evaluatehow the perception of the good by the actors could be modified in order to change the

game.


19/20


Acknowledgements

Valuable comments by two anonymous referees are gratefully acknowledged.

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