As border restrictions pop up all over the world to contain the Coronavirus, governmentscontinue to deport people from pandemic countries to poor, at-risk countries, many of which currently have very few cases. Reports are emerging that
governments are deporting sick, coughing and potentially positive
people from facilitates located at the center of an outbreak to poor
countries that, to date, have far fewer cases. In other words, countries
are negligently and knowingly spreading the pandemic to some of the
world’s poorest countries by failing to take the simple and sensible
measure of halting deportations.
The Biological Weapons Convention
prohibits the spread of biological agents, including viruses, as
weapons. But what about the negligent spread of a dangerous virus? The
CDC in the United States has classified many
dangerous viruses as banned biological weapons. Presumably, the
coronavirus will be added to this list. The World Health Organization
helped to enact the International Health Regulations
in 2005 to bind countries to collective action during a pandemic. The
regulations include guidelines to limit the international spread of the
virus.
During the AIDS epidemic,
countries regularly deported infected persons in violation of
international law. But coronavirus is so contagious, deporting a single
infected person can create an outbreak, putting thousands at risk. It
might finally be the catalyst for action against this biological crime.
If there is an outbreak in a country that can be traced to a willful
deportation by another country, a lawsuit can and should be brought by
the injured country before the International Court of Justice. Such an
action might make countries think twice during the next pandemic before
they willfully spread the virus through deportations.
Every stage of the refugee journey is risky during a pandemic
The
most common part of the refugee experience is crowds. Overcrowding, a
shortage of medicine, crowded boats, trains, cars, long flights, long
lines, long waits. These things are all part of daily life for refugees.
Social distancing is not possible when you are being warehoused in a
camp or a jail.
Predictably,
media coverage of the COVID-19 coronavirus emergency has focused on the
disruption and danger to the lives of wealthy Americans, Asians and
Europeans. A few have noted the dangers for poorer countries in the
Americas and sub-Saharan Africa. I even saw a smattering of articles on
the homeless.
But
the poorest country of them all, the vast, unrecognized state inhabited
by over 60 million people in limbo, who have next to no health care, no
right of movement and who spend most of their days packed into tents,
small rooms, crowded boats and trains, these people are going to be most
at risk of infection and least able to see a doctor. Yet their fate, so
often discussed in the media when it was politically expedient, is now
totally invisible.
The
coronavirus will flatten all lies. It has already destroyed the lie
that borders will make us safe. It has already destroyed the lie that
immigrants are the biggest threat. It will now rip a giant hole right
through the lie that refugee camps are good public policy, or, indeed,
that they are anything other than a monstrous crime.
Go
back to 2016 and what do you remember? A global panic over migration.
Panic! Be Afraid! Old dudes are shouting at you! Politicians all over
the world were pounding their lecterns, warning of the danger of
immigrants. But 2016 was only the crescendo of an old trend. For decades
now, we’ve been told, over and over again, that the only way to stay
safe is to have strong borders. Fearmongering about immigration has been
constant, intense and universal. It seems to be the #1 weapon of choice
in elections around the world.
So
powerful is this message that even left-leaning politicians in many
countries embrace draconian immigration restrictions. Often, such
restrictions are justified by supposed threats to jobs (even though
immigration creates jobs) or that immigrants use public services (even though most immigrants, including undocumented immigrants, pay taxes), alongside the looming possibility of crime and terrorism (even though many countries produce far more home grown crime and terrorism).
Yet there has always been a third rationale for immigration restrictions — public health.
Without borders, we are told, diseases could travel quickly across the
world. Borders, we are told, will keep us safe by allowing governments
to quickly screen travelers for dangerous illnesses, curbing their
spread. Borders stop pandemics!
Well, so much for that argument.
Was this the real threat all along?
As
we watch with horror the rapid spread of the novel Coronavirus, we can
see, in real time, that borders and immigration controls do little to stop the spread of infectious disease. Why? Because borders aren’t designed to stop travel, they’re designed to stop immigration. And travel is
what causes diseases to spread. In fact, our entire, global system of
commerce is designed to encourage temporary, short-term travel, for
tourism, conferences, study or family visits, particularly for people
from the Global North. By the time a government moves to close borders,
as Trump threatened to do yesterday, it’s already too late. The virus is already inside the gates.
Yet,
still, even during this actual, real live crisis, many politicians like
Trump continue to claim that we need immigration restrictions to
protect our countries. Trump keeps talking about Mexico, a country that
actually has fever cases than the United States. Politicians in Italy
are claiming
that the virus was brought by refugees, even though this is completely
false. Some blame the EU, yet while many countries in the EU have
cases…so do European countries who are not in the EU.
As
the virus spreads, politicians seem ever more desperate to tie that
spread not to wealthy, upper class people taking cruises or attending
conferences, but to refugees and undocumented immigrants.
Somehow, we’ve managed to get through this entire election cycle without
a single candidate for president even mentioning the real and present
danger of cruise ship travel. Why wasn’t I told? Where is the
leadership?
Next Time a Politician Tells You to Fear Immigrants, Ask Their Opinion on Cruise Ships
Governments
keep telling us that the supposed threats posed by foreigners are so
severe that they require urgent and damaging action. Meanwhile, real
emergencies, like climate change and the emergence of new pandemics, go
unaddressed due to lack of funding. Programs that may actually help save
lives, like infectious disease research and carbon capture, go unfunded
and ignored, barely mentioned even by liberal politicians.
Years
of screaming about the danger of migration, billions of dollars wasted
and entire nations ripped apart in fruitless arguments over imagined
dangers, fearmongering and hate. Yet, when an actual emergency finally
arrives, all our leaders can bother to do is pass around some hand sanitizer and admonish us for creating a global shortage of face masks, because
apparently it was our job to keep track of how many face masks are
available and make sure to avoid a shortage. The government’s job was to
build a huge, expensive wall that has done nothing to make us safer.
But providing enough face masks in case of a global pandemic? Well,
turns out that was your job, dear reader! Didn’t you know? Yours and
yours alone.
The government’s job is to build walls, not make face masks.
UNHCR calls it “the first country to end statelessnes.” The US calls it “banned”.
In 2019, Kyrgyzstan was feted around the world for reaching a historic landmark — the end of statelessness.
Stateless people have no legal nationality in any country. Like many
former Soviet countries, millions in Kyrgyzstan had been left without
passports or a nationality at the end of the Cold War. Without a
nationality, they could not vote, travel or access many of their rights.
The lawyer who spearheaded the government push to end statelessness in Kyrgyzstan, Azizbek Ashurov, won this year’s prestigious Nansen award,
given out each year to a human rights advocate working with refugees,
stateless persons or displaced persons. (The award is named for Fridtjof
Nansen,
a Norwegian explorer and refugee advocate who invented the “Nansen
passport” which helped millions of refugees following World War One, for
which he was awarded the Nobel Peace Prize.)
It’s worth noting that a recent report estimates that the United States may have as many as 200,000 stateless persons
about which it is doing nothing. Yet the US government has determined
that Kyrgyz people, including the human rights lawyers who worked so
hard and spent many long hours on horseback to make sure people inside
their own country can enjoy their rights, pose such a threat to
Americans that they must be banned.
Also
on the ban is Nigeria, one of Africa’s largest and most dynamic
countries and home to award-winning author Chimamanda Ngozi Adichie, who
wrote a book about the Nigerian-American experience. Why Nigeria? The US government has vaguely hinted that there may be “nefarious actors” in Nigeria, but each day they ignore the nefarious actor in the White House.
Also on the ban, Tanzania, home to some of the top travel destinations in the world, including Mt. Kilimanjaro. Apparently, the government of Tanzania was not informed in
advance that it was being added to the ban, nor has the Trump
administration made it clear why Tanzania was added to the list, or what
can be done to get off the list. In this, Tanzania’s experience is not
unlike that of James Comey, the former FBI director who found out he was
fired on TV.
Notably, while many Americans are calling this an “update” to the “Muslim ban,” most Tanzanians are not Muslims,
only adding to the frightening arbitrariness of the new list. Over the
next months and years, millions around the world will be wondering, “why Nigeria?” “why Kyrgyzstan?”
and, perhaps, “why not my country?” or, “is my country next?” Chad
somehow got itself removed from the list, making me wonder if the Kempinski hotel, once owned by Gaddafi, will soon be renamed the “Trump N’djamena Hotel.”
In
a few days, the Senate will vote to acquit Trump of his crimes, not
because he’s not guilty, but because Trump can do whatever he wants. And
what he wants is to get re-elected. So expect more travel restrictions
in the months to come.
The Right to Freedom of Movement Between US States
**Note — I urge constitutional law scholars to write more on this question.
Recently, a number of articles have come out in the media discussing which states will be most and least affected by climate change and which cities, by consequence, will see an influx of Americans fleeing
climate change. These articles rest on a common assumption held by many
Americans about their basic right to move anywhere within the United
States. But do we have such a right, really? And if tens of thousands of
Californians or Texans need to move to the mid-West, will they be
allowed to do so?
We
all know that borders stop the freedom to move from one country to
another. But the United States also has an internal system of
borders…between sovereign states. Internationally, while goods and money
can travel wherever they want in the world, people need passports and
visas. Within your own country, though, you have the right, in
principle, to go wherever you want. Or do you?
The right to Freedom of Movement inside your own country is enshrined in numerous places in international law. The right to move around within your own country is a founding principle
of the Universal Declaration of Human Rights. But what about our own
Constitution? Is there a right to Freedom of Movement under US law?
Is Freedom of Movement Protected Enough by the US Constitution? I’m Not Sure, and You Shouldn’t Be Either
Most
Americans don’t think about the right to freedom of movement very much
because, for the most part, US states haven’t restricted it very much.
If you live in California, you can move to Texas at any time, either to
visit, or to live. But in the past, there have been cases where states
like California have placed restrictions on immigrants from other
states. During the 1940s, California passed “anti-Okie” laws
to discourage unemployed people from dust-bowl states from moving to
California. These laws were swiftly declared unconstitutional. Problem
solved, right?
Not
really. The truth is that our Constitution doesn’t protect freedom of
movement between states as much as it should. You probably can’t
remember reading the words “freedom of movement” in the US Constitution
because it isn’t written there. It’s inferred, which means that the US
Supreme Court has kinda, sorta, made it up. If this doesn’t sound good
to you, it shouldn’t.
According to the U.S. Supreme Court, freedom of movement within the United States is inferred under the privileges and immunities clause of the Constitution,
which states, “the citizens of each state shall be entitled to all
privileges and immunities of citizens in the several states” and under
the Commerce Clause, which gives Congress the power to “regulate
commerce…among the several states.” If that sounds a little…indirect and
unclear to you, it’s because it is.
In fact, there’s been a lot of debate,
however, about exactly what the Privileges and Immunities clause means
and how broad the commerce clause should be. Without plunging into a
detailed discussion of the jurisprudence, let me just tell you that I
wouldn’t say with 100% certainty that the U.S. Constitution protects our
rights as Americans to move from one state to another. As the Legal
Information Institute at Cornell Law School so charmingly puts it, the right to freedom of movement in the US is, “venerable for its longevity, but still lacking a clear doctrinal basis.” Ouch.
The US Supreme Court Will Be Critical in Protecting the Rights of Americans Displaced by Climate Change
It’s not hard to imagine unaffected states receiving thousands of displaced Americans following an Australia-style climate event.
And it’s not that hard to imagine the residents of those states feeling
overwhelmed and hostile to the new-comers, particularly if it seems
likely many of those newcomers won’t be able to go back. While we’d all
like to think Americans would pull together and support each other, we
know that’s not going to happen, particularly if coastal and urban
populations are forced to move into red-state areas. It’s not hard to
imagine similar laws being passed to those used to restrict the movement
of victims of the dust bowl in the 1930s. It’s not encouraging that the
current “right” to move is based, at least partly, on the dreaded Commerce Clause, which reduces your individual rights to a commercial transaction between states.
If a flood comes to your town,
your rights as an American to move across a state line will ultimately
come down to the US Supreme Court. And it’s not hard to see the current
Court coming to a different conclusion than Courts of the past. So
next time you’re talking to a Presidential candidate about climate
change, ask them about the US Supreme Court and your right to freedom of
movement.
While we focus on one dumb tweet, the global push to obtain and share the personal data of millions of refugees without their consent continues unabated and unchallenged.
While we focus on tweets, private companies and government are using the UN to collect biometric data such as eye scans and fingerprints from refugees.
Apparently, Melissa Fleming accidentally shared the personal details of a refugee girl in a promotional tweet for UNHCR. Personally, I was rather surprised at the blowback, because UNHCR collects and shares sensitive personal data about refugees with both private companies and governments all the time with near impunity and with only a passing gesture towards ethics. I was surprised to see experts complaining about a breach of refugee privacy and confidentiality because in today’s data-hungry world, refugees have no privacy. Take, for example, UNHCR and WFP’s program to retinal scan refugees in Jordan in exchange for food rations. To read glowing media accounts of this program, you would think that refugee privacy is a non-issue, like pollution from the poop of flying pegasus unicorns.
To hear aid agencies and donor governments tell it, there’s nothing wrong with non-voluntary retinal scans and one would be foolish to even question the wisdom of creating a global database of refugee eye scans. Forget about the fact that none of the agencies has ever demonstrated that it is capable of keeping such information secure, there is no proper set of terms and conditions as to how this information is used and shared. Collecting sensitive personal data from refugees is often painted as a technical tool that will help streamline aid; discussion of problems with collecting biometrics is usually limited to the technological challenges, or the possibility for “mistakes.” Rarely discussed is the fact that the personal data of millions of people are being collected, stored and shared by unaccountable international agencies, often working with private tech companies, at the behest of donor governments with murky agendas. For example, why might the EU be interested in a database of fingerprints of people from various West African countries? Might that not help identify people for deportation?
Living Under the Techno-Humanitarian Super-State
While many of us are concerned about data privacy, most of us have control over enough aspects of our lives that we can, if we wish, take measures to protect ourselves. It’s not possible to prevent the government from collecting your personal data — we all gave up that right to privacy long ago. Yet many of use can influence how the government uses our data, at least in theory, through voting. As for non-governmental data collection, its still possible to opt out. For example, it’s possible to go off Facebook or limit the data collected by our mobile phone carriers. But refugees have no power to limit the power of aid agencies and others to collect their data. Refugees have no choice but to exchange their retinal scans for food. The aid agency or UN serves in a quasi-governmental role, but without the same level of accountability. After the retinal scan is collected by the UN, for example, refugees have zero say over how it is used and who it is shared with. In many cases biometric data is collected by external vendors, sometimes even private companies. What happens to the data then? Who knows?
We are all used to our data being collected, stored and used by our own governments, but increasingly, the data of millions who have had contact with an international organization is being collected, stored and used by other governments and by these agencies without any agreed upon rules or standards. At least Facebook is required to release information on its data-collection policies to the public and, if you don’t like it, you don’t have to use Facebook any more. Refugees are being forced to give up their personal information in exchange for food.
A lack of transparency pervades this entire system of data management by humanitarian agencies. It’s become clear that some data is being shared across borders and given to governments that ordinarily would not have access to it. Imagine if you were sitting in London and your fingerprints were being shared with the government of Australia, a country to which you had no ties and had never been. Yet there is some evidence that this is precisely what’s happening, not only to refugees, but to millions of “migrants” and, even, potential “migrants.” Meanwhile, to pass through the gates of a refugee camp anywhere in the world is now to consign yourself to being labelled a “refugee” everywhere and forever, as increasingly the data collected by humanitarian organizations and the UN is shared, preserved and duplicated worldwide. This problem, its sweeping breath and depth, its rapid expansion with almost no pushback from anyone, makes a mockery of a debate over concerns over sharing the personal details of one person via Twitter.
Welcome to the global humanitarian surveillance state.
By
making xenophobia the cornerstone of his administration, Trump has
placed himself in a weakened position of needing other countries to help
him deliver his signature campaign promise.The out-sourcing of US immigration hands enormous power to Mexico.
How Do You Say “Blackmail” in Spanish?
Since
the Trump Administration appears to have given up on signing a Safe
Third Country agreement with Mexico, this post will focus on the two
most important changes happening in the US, Remain in Mexico and the
Safe Country of First Asylum Policies, and how they are likely to affect
long-term Mexico-US relations. The short answer: it’s not good.
**Update: The administration just announced
it signed a “memo” with El Salvador. It’s not clear, at all, under US
law that a “memo” can substitute for a Safe Third Country Agreement.
Also, the administration has pledged to build El Salvador’s capacity to
adjudicate asylum cases (refugee status determination.) While El
Salvador has ratified the relevant laws and treaties, as of 2018, there were only 48 registered refugees in El Salvador. That means that only 48 people had gone through a UNHCR/government asylum procedure and received a status. This
number raises serious questions about the capacity of the El
Salvadorian government to process asylum cases without massive US/UNHCR
support. The administration has said, and I quote from Vox, “The
core of this agreement is … recognizing El Salvador’s development of
its own asylum system and a commitment to help them build that
capacity…” To this I say, “capacity??? What capacity???” Someone in the media should ask the administration about this. Hint Hint.
Remain in Mexico — Trump Might Not Know Much, But He Knows How To Get Himself Blackmailed.
“Remain
in Mexico,” or the Ministry of Truth named “Migrant Protection
Protocals (MPP)” is basically the Trump Administration’s attempts to
implement a somewhat successful policy put into place between the EU and
Turkey a few years ago. Under the agreement, refugees that reach the EU
from Turkey are sent back to Turkey, where their asylum claims are
processed. Those who are granted asylum are then transferred back to the
EU. In exchange, the EU has promised Turkey a boatload of money. Unfortunately, there has been continued fighting over the money, with Erdogan threatening to “release” more migrants into the EU if he doesn’t get more cash. Like
the politician who pays up to keep the pee tape out of the newspapers,
putting Mexico in charge of US asylum policy is giving Mexico a lot of
leverage over the US government in the future.
Today, there are camps of asylum-seekers at the border, waiting for their cases to be heard in special tent-courts.
It’s an entire, tent-based system of government. The 9th circuit has
allowed the program to go forward, despite concerns expressed by some
judges over the possibility of refoulement,
or that some asylum-seekers would face death or torture in Mexico. As
well, the Court had to go through a convoluted exercise in reasoning to
make the original statute make sense. Basically, if a person is clearly
not eligible for asylum, they are subjected to expedited removal and
sent back, as usual. Now, under the MPP, if the government thinks they
might have a case for asylum, they are….also sent back. According to the
Court, this will make processing of cases easier. What the 9th circuit are essentially saying is that it will be easier for judges to process asylum cases in tent courts than in regular courts. If any of this makes sense to you, than good for you.
As far as I’m concerned, the rule is illegal on its face. The administration is relying on an obscure clause
in the immigration law saying that people refused entry to the US from
Mexico may wait in Mexico to be deported to their home country. This
clause was clearly not meant to apply to asylum-seekers and, even if it
were, it would create unconstitutional discrimination between
people applying for asylum after arriving in the US by air and people
applying for asylum after arriving in the US by land.
Furthermore,
it’s ridiculous to argue that Mexican border camps are “safe” for
anyone. What’s the point of keeping people in Mexico if they likely have
valid asylum claims? And how is it making anything easier or smoother
for judges to force them to adjudicate cases in a tent? We all know that
Trump’s been packing the 9th Circuit with friendly judges, but this ruling is disappointing simply as an exercise in basic logic.
Of
course, as well all know, what’s really going on is that both the Trump
administration and, apparently, the revamped 9th circuit, think that if
people are made to wait in Mexico for asylum, they will eventually give
up and claim asylum in Mexico instead, which seems to be happening, to a limited extent. This raises the existential question of whether or not the US actually wants to grant asylum anymore. We either believe, as a country, in the right to asylum, or we don’t anymore.
Another
problem, of course, is that this policy is once again is making Mexico
the linchpin in US immigration policy. Because there is no formal
agreement between the US and Mexico, Mexico can stop complying with
these policies at any time, to whatever extent it wants. Let’s say, for
example, Mexico is in trade negotiations with the US. Maybe it needs
leverage. Well, now it has all the leverage it could possibly want or
need.
By
making xenophobia the cornerstone of his administration and painting
immigrants as a clear and present danger to the United States, which
they are not, Trump has placed himself in a weakened position of needing
other countries to help him deliver his signature campaign promise. Meanwhile,
the crises in Central America will continue for the foreseeable future,
meaning that there will continue to be plenty of human leverage for
Mexico and plenty of headaches for the Trump Administration.
Safe Country of First Asylum
Yesterday, a judge enjoined the
Trump Administration’s latest, and most draconian, anti-asylum policy
that would have required asylum-seekers who transited through Mexico to
claim asylum in Mexico. Basically, this policy was an attempt to get
around the legal requirement for a Safe Third Country as is very likely illegal. I
can’t predict what judges will decide, but the idea that you could get
around a clearly written federal law by pretending it doesn’t exist is a
disturbing precedent that I like to think would give any judge pause.
***Update:
The Supreme Court has quashed the injunction, a bad sign that it might
uphold this illegal Trump administration policy. If you don’t believe me
that it’s illegal, just read the law for yourself.
It clearly states that the US government needs to sign an agreement
before it can send asylum-seekers to a third country. You don’t need a
law degree to understand this.
The policy is before the US Supreme Court.
The government has made multiple claims that there is a “crisis” and,
therefore, they need to upend the regular order of business and ignore
the law. It’s not clear how the Supreme Court will view this attempt to
circumvent the law based on appeals to a dubious crisis, but we shall
see.
Once again, this is a policy the Trump Administration is trying to adapt from Europe, with its repeated attempts to “burden share” via the Dublin Regulations.
The problem for the Trump administration is that Dublin is predicated
on their being an organization, the European Union, that can regulate,
control and share information on asylum applications between the various
countries. In order for the “safe first country” policy to actually
work, the US government would have to set up a way to verify that people
had (1) transited through Mexico or Guatemala and (2) applied for
asylum there.
The
point of an official Safe Third Country agreement is to regulate all of
this and make it all work properly, which is why we have a Safe Third Country agreement with Canada.
It is a mystery to me why anyone would think it reasonable for the US
government to fail to obtain a Safe Third Country agreement with Mexico,
but then go ahead and unilaterally try to implement such an agreement
anyway. Once again, this makes no logical sense. But we will see what
the Supreme Court thinks.
If
the Court allows the Trump administration to implement this bizarre
policy of working with Mexico without an agreement, it is again going to
create a pressure point between the US and Mexico. Without formal
operating procedures, it’s unclear why Mexico would cooperate unless
they were getting something in return. Looming over all of this is the
fact that Mexico’s asylum system is very small and underfunded.
At this point, it is propped up by support from UNHCR and unable to
really function on its own. Any budget cuts to UNHCR regional programs
would likely trigger a collapse in Mexico’s capacity to process asylum
claims, meaning that UNHCR funding is increasingly becoming a critical
pressure point for US immigration policy.
All
of this outsources of US immigration policy means just one thing — less
control over immigration by the US government and more control by other
countries, particularly Mexico. It’s a strange place for a country obsessed with nationalism to be.
