To Protect Millions of “Climate Change Refugees,” All We Need is One Judge to Think Outside the International Law Box

Small Island States: the Maldives

If drastic action is not taken soon, many small island states may not be around in the next 50 years. The governments of Small Island States have been sounding the alarm for decades, but no progress has been made on cutting global emissions. The government of the Maldives even held a cabinet meeting underwater to galvanize international attention, but to no avail. The truth is, small island states are, well, small and have little clout in the international arena.

Maldives cabinet meeting

What can be done to put pressure on rich countries? One thing you will frequently read in magazines and newspaper articles is that those displaced by climate change are not “refugees” because they haven’t been persecuted. Because the victims of climate change are not refugees, they have no right to seek protection abroad, but must remain inside their own countries and make do as best they can.

This approach is pushed ad nauseam by UNHCR and many international organizations. Because of the relentless dogma on the topic of climate change refugees, to date, no judge has ruled that those displaced only by climate change, and not as a result of war or some compounding factor, are eligible for asylum. Some countries have created ad hoc approaches,granting limited visas or asylum under narrow humanitarian circumstances,but a blanket approach that would cover everyone who needs help?…not so much. As a result, the victims of climate change have no legal recourse. If they receive help, it is as charity, not by right.

Granting Refugee Status to the Victims of Climate Change Would Put a Lot of Pressure on Rich Countries

What we need is for a court following the common law system in a big, wealthy country to find in favor of a blanket application of the 1951 Refugee Convention to persons fleeing climate change. This would set a precedent, allowing other courts to do the same. Currently, there is no incentive for rich countries to do anything about climate change because most rich countries assume they can weather the coming storm, if you’ll pardon the pun.

If you’re hearing more about climate change these days, it’s because people in rich countries are finally getting the message that they may not be able to buy their way out of this one. Granting the automatic right to apply for asylum to the worst-hit victims of climate change in poor countries might also help to drive home the message that rich countries can’t insulate themselves from the effects of climate change. Or it might bring the whole asylum system crashing down. We won’t know unless we try.

But I Thought Climate Change Wasn’t Persecution?

But as a practical matter, there appears to be an enormous legal barrier to “climate change refugees”: the requirement that refugees provepersecution. The refugee regime was created in the wake of World War II and the beginning of the Cold War. It was very much focused on political, racial and religious persecution, the idea that your government had ceased to protect you, but was, instead, out to get you. Climate change, like poverty, is caused by humans, but not, in most cases, with the express purpose of getting you, personally. It’s more of an accidental byproduct of greed, stupidity and ignorance. But this lack of intent on the part of governments doesn’t make climate change any less deadly — far from it.

But as I explain in an academic paper, the requirement of persecution was only included in the 1951 Refugee Convention, the central legal document defining refugee status, for people with a nationality. For those left stateless by World War II or the Cold War, without any country of their own, perhaps because their country had ceased to exist as a political entity, persecution is not necessary. All that is necessary for stateless people to qualify as refugees is to show that you are unable to return to your country.

Take the example of Mr. A, who used to live in Country X. While living abroad for his job in Country Y, Country X goes through a civil war and divides into two new countries, Country L and Country M. But there is no embassy for Country X where Mr. A is working. He is unable to convert his Country X passport into a Country L or Country M passport. Instead, he is stuck with his now useless Country X passport. When Mr. A’s job comes to an end, he looses his visa and is required to return home. But he cannot, because he doesn’t have a valid passport. He goes to the newly opened consulates of Country L and Country M, but neither will issue him with a passport. The police of Country Y arrest Mr. A for overstaying his visa and try to deport him, but to where? No country will accept Mr. A.

Most refugee lawyers would read the above story and tell you that, sadly, there is no hope for Mr. A. He does not qualify for refugee status and, unless he can somehow apply for a special exception for his case in Country Y or figure out a way to be deported, he is stuck in stateless limbo, possibly for the rest of his life. What I am saying in my paper is that this interpretation of refugee law is wrong and that Mr. A is a refugee. And one of the nice things about refugee law is that reasonable fear of future bad events can also be grounds for asylum, even if those bad events have not yet come to pass.

But Most Climate Change Refugees Aren’t Stateless, Are They?

True! Today, most of the people fleeing climate change to another country will not be stateless. Their country will continue to exist and in most cases, the best solution for them will likely be assistance inside their own country. But this will certainly not be true in the case of Small Island States. If a country entirely disappears, its former citizens will be stateless. While not all experts agree on this conclusion, and many governments of small island states resist it, I think most ordinary people would agree that it’s pretty logical. And if the former citizens of small island states are stateless, they don’t have to show persecution to automatically qualify as refugees in, say, Australia, all they have to do is show that they can’t return to their homes, because the land mass on which they used to live is either underwater, or uninhabitable due to a lack of fresh water, or subject to frequent, debilitating storms. Or these threats could be in the future — as asylum law has always been based on reasonable forward-looking fears, the fear that one’s state is likely to be uninhabitable in 10–30 years would be perfectly consistent with the law.

I leave it to the judges to work out the nuances — that’s their job under the common law system. Right now, all we need is one judge to lead the charge and say that a citizen of a small island state that may not exist in 10–20 years is at high risk of being stateless and unable to return to their country. Perhaps in the future, the precedent could be extended to the inhabitants of states threatened by desertification or deforestation? One court case would set a precedent that other judges in other countries could follow, potentially bringing a cascade of cases, and some real changes to the way we all think about risk and responsibility during a global catastrophe.

Jared’s Immigration Reform Proposal Might Open the Door to a Real Negotiation

A few days ago, the Migration Policy Institute released a summary analysis of Jared’s proposed immigration reform. While the plan itself has not yet been released, and may never be, it sounds like Jared is pushing for a shift from a family-based system to a point-based system used by many other rich countries like Canada and Australia. The employment-focused system would neither reduce the overall numbers of immigrants nor threaten vulnerable union jobs in rust-belt states.

The plan has some pretty obvious negatives. The focus on “high-skill” workers would favor wealthy immigrants over poor ones. By prioritizing college graduates, it would probably worsen the brain-drain from poor countries to rich countries. And it would eliminate the visa lottery, which brings in a diversity of people from countries who usually don’t immigrate to the US. Otherwise, the proposal is actually pretty…modest and reasonable.

It’s important to avoid a knee-jerk reaction to the switch from a family points-based system to a points-based system. There is no morally defensible reason, outside of humanitarian concerns, why one immigrant should be granted a visa while another is denied a visa. Unfortunately, governments will always limit visas, creating a system by which some people get a visa at the expense of others. Immigration systems are, by their very nature, arbitrary and unfair. As long as their are borders between rich countries and poor countries, between stable countries and war-torn ones, every immigration system will always be centered on injustice.

If this is a serious proposal at immigration reform, Democrats and pro-immigrant groups should at least consider it. The plan could be the grounds for a genuine deal, particularly if it added protections for Dreamers and TPS holders, increased the refugee resettlement quota, gave more money for immigration judges, restructured ICE, closed private detention facilities and the decriminalized border crossings. These are a few of the things I would bargain for.

The chance at genuine, bipartisan immigration reform that can pass Congress only comes once every ten years or so. The most likely outcome of this plan is that it will end up on in the dustbin of history, where so many attempts at immigration reform have ended. Currently, the US government is unable to pass an infrastructure bill, something that almost every single person in the US wants. But just because something seems impossible doesn’t mean that it actually is impossible. As Donald Rumsfeld once said, you reform immigration with the government you have, not the government you might want or wish to have at a later time. And it’s important not to let dislike of Trump stand in the way of a chance to actually get something done for immigrants.

Unfortunately for Trump, Regional Organizations Like the EU are Best at Deterring Migration

A refugee camp near the Turkish border

Last week, the Trump administration supposedly signed a “deal” with Mexico to stem migration from central American countries to the United States. Many commentators have noted that Trump prefers bilateral deals to regional cooperation. But, unfortunately for Trump, experience has shown that regional organizations, including the hated EU and, dare I say it, the UN, are best at managing and limiting migration.

First, I should say that as a human being on planet Earth, I reject utterly that immigration to the United States is anything but good for the country as a whole, thought like all changes, it can produce ill effects if not managed properly. This post, however, will accept as a given that many American voters are unhappy with current levels of immigration and would like to see them reduced. The question then becomes, how can this be done?

Wait…You Want Me To Do My Job???

Idea #1: Congress

US law has developed over the years to be quite friendly towards immigration, recognizing it as a strength for the economy. Though the GOP is now pretending otherwise, it has been fairly immigration-friendly in the past as long as immigration is controlled, while Democrats, and particularly unions, have often been more moderate than they now appear, particularly when it comes to immigration schemes that encourage low-wage and temporary workers. As a result, we have a system of laws that everyone agrees is Byzantine and nonsensical, but is actually quite moderate, with a heavy focus on border control, family unity, workers, and a pathway to citizenship. I say the law is pro-immigration, however, not pro-immigrant, as it is designed mainly to boost the overall US economy and provide businesses with workers, not to uphold human rights. The law treats immigrants as cogs in the economic machine, not as people, but that said, it allows for a pretty significant inflow of immigrants each year, though much lower than at many points in the past. As a result, much could be done to make the laws more restrictive if voters are willing to pay the economic costs.

The most obvious way for Trump to limit immigration to the US is to pass a comprehensive immigration reform bill that limits either the categories and overall number of green cards and visas to the US. Limiting temporary visas, like student visas, would also do much to reduce visa-overstays, a major source of undocumented immigrant to the US. The Heritage Foundation has actually outlined many of these changes in a recent report. Some of them might even receive bi-partisan support, like eliminating the visa lottery and country quotas while increasing other visa categories. Large reductions in immigration could be accomplished via immigration reform without running afoul of the US Constitution. The fact that Trump did not immediately push for this after his election when Republicans controlled both houses of Congress is perhaps the greatest tragedy of his presidency from the perspective of many Trump voters. Instead, he allowed the GOP to focus on their main priority, a tax cut for rich people.

Idea #2: Diplomacy

Since we now have a divided Congress, Comprehensive Immigration Reform is once again out of reach. What else can Trump do to stem immigration that doesn’t require changing the law? This brings us to the second way to reduce migration: diplomacy. International diplomacy is one area where Trump has a pretty free hand. One big thing he could do is sign a Safe Third Country Agreement with more countries, particularly Mexico. This would allow the US to return asylum-seekers without having to adjudicate their claims. There has been a significant amount of media coverage of Trump’s quest to get this agreement signed, but at the end of the day, there is only so much that Mexico will likely be willing to do on its own. And if you don’t believe me, take a look at how things are going for Germany with the implementation of the 2016 Turkey-EU agreement to decrease migration. Closing off the pathway through Turkey has decreased the number of people entering Europe, but it has also led to the creation of massive and likely unsustainable camps along the border and the rerouting of migration via the Mediterranean. Diplomacy has also been an important part of getting sending countries to identify and accept back their nationals.

The laser focus on Mexico and a Safe Third Country Agreement obscures the regional, and increasingly global, nature of immigration and the rapidity by which the system will simply circumvent barriers and find a new way to bring people into the US. Part of this is down to the increased globalization and efficiency of the gangs who run people smuggling. Today, immigration is not run by individual smugglers and coyotes, but by massive, international mafia organizations. Human trafficking and people smuggling are big business, increasingly run by professional criminal networks and bringing in a low estimate of at least $32 billion. The Trump administration has paid little attention to cracking down on these networks, focusing instead on the victims, the immigrants, which is akin to targeting Bubbles while ignoring Walter White. While the administration has made some stabs towards combating human trafficking as an isolated issue, it’s not clear how much real effect these initiatives will have, given that human trafficking is a trans-national problem that requires a trans-national response and part of the larger problem of supply and demand in the world of international migration.

But there are other tools in Trump’s toolbox that he is simply ignoring, possibly because he actually has no interest in “solving” the migration “crisis,” but maybe because he doesn’t want to hear that the solution requires creating and supporting regional and international organizations, things Trump hates. Unfortunately, Trump’s approach to international and regional organizations has created a huge missed opportunity to develop an effective border control strategy. If you didn’t hear much about Nielsen’s “regional compact” on migration, it’s because not only was it not clear how the compact would work, but Nielsen was fired right after she signed it. Something that has had some success in other parts of the world would be to create a regional border protection agency along the lines of FRONTEX in the EU. In particular, a regional border monitoring agency could off-shore a lot of the US’s border patrol functions, as FRONTEX has done in Africa, working closely with international organizations, like the International Organization for Migration and with governments likeNiger. Note that I am not writing these sentences from the perspective of a human rights lawyer, I am simply pointing out that regional measures to crack down on migration are working, somewhat. There is emerging evidence, however, that the unholy alliance between Niger and the EU is starting to produce unintended and potentially catastrophic affects on the local economy. In the future, the EU’s experiment of outsourcing border control in Niger may look more like a disaster in the making if it ends up destabilizing yet another Sahel country. And this brings us to the only true solution to the “problem” of immigration: ending inequality, instability and climate change.

The biggest driver of migration in the future? Climate Change

Idea #3: End Inequality, Instability and Climate Change

Many people think that migration is caused by extreme poverty. This is actually not true, as extremely poor people lack the means to travel and are trapped in place by their poverty. In fact, migration usually occurs because better off people are looking for jobs and stability. Once people have accumulated some resources and education, they have the means and the tools they need to better their lives. The explosion of the global middle classhas led to a sharp increase in the number of people who can afford to migrate. And for many people who have accumulated some wealth and education, but lack opportunities in their home countries, the natural response is to look for a better future elsewhere. Much attention is focused on income inequality within countries, but the real driver of immigration is income inequality between countries. The standard of living is simply much, much higher for the average American than it is for middle-class people in most other countries, but the cost of living for the urban middle-class in many parts of the world has sharply increased. But perhaps most importantly, middle class people everywhere want and need political stability in order to thrive: stable educational and social services, cheap transportation, plentiful work opportunities, land and home ownership and peaceful elections. A country that can’t or won’t provide these things will see its middle class start to leave.

Increasingly, climate change is causing exactly the type of instability and loss of livable land that fuels migration. We can look to climate change to drive people to migrate not only within countries, but between them. Already, Vancouver rates highly for immigrants due to its climate and the promise of long-term political stability that perhaps only the Canadian government can provide.

Unfortunately, it will not be easy for Trump or any other American president to solve these entrenched problems without signing on to the very types of humanitarian, peace-building, environmental and economic policies his administration seems to hate the most. In a world where problems are increasingly global, nationalist policies simply won’t cut it anymore.

Stop Calling People “Migrants”

Get Out of the Road!

The term “migrant” is inherently dehumanizing and journalists should stop using it.

Pedestrians. Everyone hates them. They stride out into the road, not looking where they’re going because they’re too busy looking at their phones. Pedestrians are always crossing the street. It’s like their entire reason d’etre or something. And they get hit by cars so often, you’d think getting hit by a car was their job. God, they’re annoying.

Thing is, there is no such thing as a “pedestrian.” In fact, there are only people, some of whom happen to be crossing the street at this particular moment. We have all entered that transitory state of “being a pedestrian” at some point in our lives.

These days, it’s become very common to read countless stories about “migrants,” who are usually presented to us by the media as a sort of sub-human category of creatures constantly engaged in the act of coming from where they live to where we, the readers, live. Even well-meaning storiesuse the term “migrant” almost exclusively. It’s quite common to read an entire article about “migrants” without once reading them referred to as “a person.”

According to most media stories, migrants are never people, they are always migrants, always the other. The use of the term “migrant” in place of the term “person” forever separates the reader from the subject of the story. Like polar bears or bees, migrants are placed outside of our frame of empathy, creatures whose lives are undoubtedly sad and about whom we should feel guilty, but not people with whom we should empathize.

It is this exercise in dehumanizing semantics that allows most people from rich countries to believe that it is their God-given right to visit any country the want, while simultaneously believing that “migrants” do not have the right, ever, to set foot in another country. And most people from rich countries would never, ever use the term “migrant” to describe themselves. When rich people move abroad, they are ex-pats, not migrants. To be an ex-pat is to be desirable and special, to bless the county receiving you with your wisdom and knowledge.

I am not the first person to note the difference between the use of the term “ex-pat” and “migrant.” Other terms used for people from rich countries might be backpacker, traveler or even “global nomad.” All of these terms have slightly different meanings, but they all have one important thing in common — they are not “migrants.”

Likewise, many Americans are “descended from immigrants.” Immigrants are associated with being scrappy boot-strappers who came to America a long time ago and helped make it great. “Immigrants” are family members and ancestors. They are part of our common heritage. Even the hated term “tourist” is one which we have all embraced at some point in our lives, even as we insist that we are not “that kind of tourist.” The idea that there should be limits on tourism, that not everyone who wants to should be allowed to climb Machu Picchu, is often received with horror. How dare you tell me I don’t have the right to climb Machu Picchu! I am a human being!

For this reason, the term “migrant” is not like the term “pedestrian,” “expat,” “tourist,” or even “immigrant.” Though these terms may have pejorative overtones or uses, they are not intrinsically dehumanizing, because we all spend time as pedestrians or tourists, or know people who have been expats, or have ancestors who were immigrants. Expats, immigrants, tourists and pedestrians are part of the human family. Just like teenagers, who may be annoying, but who are nevertheless only human like the rest of us.

But the term “migrant” is different. Migrants are always the other. No person from a rich country would ever describe themselves as a migrant, nor would they ever be described as such. Once, at a party, while living in Australia (and taking a job away from an Australian, by the way,) I described myself as a “migrant.” The person I was speaking to looked extremely confused. After all, how could I be a migrant when I was clearly an American?

The term “migrant” is inherently dehumanizing. So journalists should stop using it. The word “migrant” constructs a wall between the reader of the article and the subject of the article. It transforms a transitory state of being, that of moving from one country to another, into a permanent state of being, that of being the other. And if you’re wondering what word to use instead, try “person.” Nothing is more humanizing that being called a person.

Journalists Can Change the Narrative on Asylum

Today I opened the Washington Post to see an article by Nick Miroff where he repeats Trump calling the asylum process a "scam." Reporters regularly include charming little Trump quotes like this in their reporting. I get it; these are the official statements of the US President. These are the justifications for sweeping changes to our asylum process. What are reporters supposed to do, not quote him?

Yes.

The rules of press engagement under Trump have been endlessly debated at this point, but usually this argument has centered around to what extent reporters should call out Trump's lies. Less attention has been paid to the negativity created by Trump's trolling, even when his statements are then carefully debunked. Just repeating the words "scam" and "criminal" over and over again in reference to asylum-seekers and migrants make it hard to think of anything else. Trump knows this; it's why he does it.

So far, most newspapers like WaPo have limited themselves to publishing Trump's statements and then publishing fact checks debunking these statements. This isn't working because (1) Trump is the President so his words carry more weight than anyone else's and (2) most people read the nasty Trump headline but not the careful fact check.  As a result, the toxic lie resonates while the truth gets buried.

If journalists want to keep quoting Trump because it drives story-clicks, adding context about Trump's motives and veracity might help. This a high level of cognitive dissonance in newspapers these days, where headlines quoting Trump calling other people criminals without any evidence often sit side by side with articles detailing 400 page reports on Trump's own criminal behavior. It would be nice if newspapers could combine some of this reported, such as by saying, "President Trump, who has been accused by the former FBI director of criminal obstruction of justice, calls asylum system a 'scam'."

I know this breaks with current journalism practice, but what is the point of a system that is no longer helping ordinary readers obtain the information they need?

“Superhero” Immigrants Bring Hope to Small Town America. But Can They Save This Dying Town? By DoBetterNews

Robust Immigration Ensures American Prosperity for Years to Come, but Will It Work Everywhere?

Pete Buttigieg was worried. His construction business in Skinkton, Illinois needed to hire a couple of welders for a big new job. A tech bro from Chicago had recently bought the old Dairy Queen. The tech bro, who grew up in Skinkton and came home to visit about twice a year, wanted to transform the Dairy Queen into a rock climbing gym for his visits. Buttigeig won the contract to build the gym, but he needed to find additional workers, stat.

“I was starting to panic,” Buttigieg told DoBetterNews. “Skinkton is a small town and getting smaller. There just aren’t enough welders to be had.”

Then Buttigieg heard that the government was helping a few hundred immigrant families relocate to Skinkton from the border as part of the government’s “Superheros For America” program. Turns out, a couple of the new arrivals had welding experience. One had even worked for a major construction company in Honduras, before gang violence had forced him to flee.

“I couldn’t believe it,” Buttigieg said. “It was like the answer to my prayers. I called Mayor Bernie immediately to get their contact info. I want to give them a call as soon as they arrive. I don’t want to miss my chance.”

Buttigieg wasn’t the only one thrilled by the news that new families were moving to Skinkton.

“As far as I see it, their loss is our gain,” said Elizabeth Warren, the manager of the Dilly Dolly Diner off Route 231, speaking of Central American countries. “If they don’t want workers, we’ll take ’em. My worry is social security. How are my kids going to get their checks if their ain’t enough people paying into the system? I figure the immigrants are the solution.”

I asked Warren if she was afraid that the immigrants would take jobs away from locals.

“I ain’t never heard of anyone being fired so their boss could hire a newcomer who don’t even speak English. Besides, I don’t even serve tacos, so if they want to open a restaurant, I say, why not? It’s not like they’re going to outdo my meatloaf. No way, no how.”

“Besides,” she went on, taking an apple pie out of the oven behind her and placing it to cool on the windowsill, “they gotta eat, right? I figure once they taste my meatloaf, they’ll be regulars here. Say, do you know how to say ‘meatloaf’ in Spanish?”

Across the town, the reaction is pretty much the same. Since the typewriter plant closed down ten years ago, many young people had chosen to move away, traveling to Chicago, or even further, to find better paying jobs. Many of the storefronts on Main Street were now boarded up and there was the sense that the town was destined to die out if some new people didn’t move in soon.

But what American family would choose to relocate to Skinkton? Enter the “Superheros for America” program, which offered immigrant families financial assistance to relocate to small, American towns. But the “Superhero” program has not been without controversy. After the bidding system allowed big cities like Chicago to scoop up all the families, the government began a nation-wide fraud investigation that led to 20 convictions of city mayors nation-wide.

“Them city folks already got so many people,” Warren says, anger in her voice, “why they gotta take our immigrants too?”

The fairness of the “Superhero” program is proving to be a major re-election issue for the President, who ran on a platform of “Small Towns First.” Now, the government is piloting a new lottery system to make sure even small towns like Skinkton get a shot at hosting a few families. But the government can only do so much. After the families arrive, it’s up to Skinkton to make it worth their while to stay.

Mayor Bernie Sanders sees the “Superheros” program as his last resort. It follows a long series of failed attempts to get American families to move to Skinkton. A few years ago, the Mayor had offered non-resident families $10,000 if they would relocate to Skinkton and put the money towards Bitcoin mining. A few families have taken him up on the offer, but since the collapse of the value of Bitcoin, the Mayor figured it would only be a matter of time before they left again.

“Thing is, there’s really nothing unique about Skinkton, except maybe for the smell. But most folks don’t see that as a positive. I don’t know, maybe the rock climbing place will make a difference?”

I asked him about the new “Superhero” families who would be moving in.

“I couldn’t be more thrilled, frankly. I just hope they’ll decide to stay here. This might be the break we need, but I don’t want to get hopes up too much around town. We’ve been let down so many times before…the Ladies Gardening Society is planning a parade and everything. I just hope it works out.”

He pulled thoughtfully at the end of his long, grey beard, which spilled down his chest, partially covering his grey, Harley Davidson tee shirt. I got the impression that Bernie was exhausted by the effort to keep Skinkton going, when he’d clearly rather be on the open road on his famous Harley, riding without a care in the world. Instead, he was in Skinkton’s tiny Mayor’s office behind the shuttered Walmart, pondering the first ray of hope to come to Skinkton in years.

“Do you think they’ll open one of those burrito joints?” he went on, thoughtfully. “Between that and the rock climbing place, Skinkton might almost feel like San Francisco. Maybe that will attract some more people.”

After my meeting with Mayor Benrie, I took a walk down Main Street. It was a beautiful spring afternoon and a group of women were hanging streamers from lamp posts, getting ready for the parade for the arriving families. By breathing through my mouth to avoid the smell, and by ignoring the boarded up Bargain Shopper Discount Store to my left, I could almost picture a bright future for Skinkton. If only they can convince the immigrant families to stay.

Downtown Skinkton