Born into Statelessness: Unintended Consequences of the End of Birthright Citizenship

In October 2018, in response to growing Central and South American migrant population fleeing violence and approaching the United States, President Trump made a drastic statement that he would seek to end jus soli, or birthright citizenship, through an Executive Order. Lindsey Graham, a Republican Senator from South Carolina, lauded the President’s statement, and indicated that he intended to introduce legislation to the same effect. If successful, this new citizenship law could have a devastating impact on children born in the United States to Central and South American individuals, leaving thousands of them stateless.

As a matter of international law, states are free to determine who is or is not a national of their country without interference from the international community or international law, except in the case of stateless persons. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the two primary international instruments guiding the rights of individuals and the actions of states with regard to nationality. Many international instruments affirm the right an individual has to nationality. Specifically, the 1954 Convention defines a stateless person as someone “who is not considered as a national by any State under operation of its law.” The 1961 Convention requires that states grant nationality to those born on their territory who otherwise would be stateless, and prohibits states from withdrawing nationality from an individual when that individual would then be rendered stateless. Accordingly, under international law, the United States government is free to end, or further restrict, birthright citizenship but only in accordance with the provisions in the 1961 Convention.

Issues arise in practice when the domestic laws of nations conflict, leaving individuals in situations of de facto statelessness. According to the Pew Research Center, about 250,000 children were born in the United States to non-citizen immigrant parents in 2014, with many born to parents who lacked legal status. Because of the domestic laws of the countries from which these immigrants originate, children born to immigrant parents in the United States may lack citizenship of their state of origin. They would therefore be rendered stateless if the United States were to curtail birthright citizenship, in contravention of the 1961 Convention.

For example, the law of Brazil stipulates that individuals born abroad to a Brazilian parent are eligible to acquire citizenship after becoming an adult only if their parent registered their birth with the Brazilian authorities or if they returned to live in Brazil as a child. If the individual is not registered or does not reside in Brazil before the age of majority, he or she is not entitled to Brazilian citizenship, regardless of the nationality of his or her parents. As of 2014, there were approximately 336,000 Brazilian immigrants in the United States.

There are several issues with these requirements of affirmative action on the part of the parents or child. First, to register a child with the authorities of their own birth country, parents must first demonstrate their own citizenship, which may prove problematic. Parents could do this by showing a passport, birth certificate, or identity card. However, these individuals may have fled their homes quickly without such documents, and would therefore risk being unable to register their children even if they desired to do so.

Second, even if the child of Brazilian parents wished to acquire Brazilian citizenship, the decision is entirely in the hands of his or her parents. His or her parents must be the ones to register the child’s birth with the relevant authorities; no other adult is eligible to do this and the child himself cannot make himself known to authorities later in order to qualify for citizenship. If this is not done, the child must return to reside Brazil before the age of majority. For most children, this is a decision entirely out of their control.

Therefore, should the U.S. end birthright citizenship, children born in the U.S. of Brazilian parents would be at risk of de facto statelessness by no fault of their own. This example is meant to be illustrative, though not exhaustive. Many groups of immigrants in the United States would be forced into similarly precarious positions. The domestic laws of many Central and South American countries require parents located out of the country to register their children’s births with the national authorities in order for them to be eligible for citizenship. There are many reasons why parents fleeing violence, persecution, and economic crises may not wish to register the birth of their children. Whatever the reason, innocent children without a choice would suffer as a result of this change of law. Without careful consideration of the potential impact of this change to US birthright law, many children residing in the United States would be rendered de facto stateless and vulnerable as a result.  

John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

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US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US will “ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

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Applying the death penalty to drug dealers is never ‘appropriate’. It violates international law.

On Wednesday, March 21, Attorney General Jeff Sessions issued a memo implementing President Trump’s plan to “get tough” on the opioid epidemic: the death penalty for drug dealers. Session’s memo “strongly encourage[s]” prosecutors to seek the death penalty in drug cases “when appropriate.” While this strategy comes as no surprise from a president who has lauded Philippine President Duterte’s approach to drug policy, it’s not “appropriate”. And it violates international law.

Lots of ink has been spilled arguing that Trump’s proposal will violate the Constitution, drive drug use underground, benefit large-scale drug dealers, and grind the federal judicial system to a halt. Less has been said about the international legal implications of the proposal.

Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, limits the application of capital punishment to the “most serious crimes.” The UN Human Rights Committee emphasizes that this category must be “read restrictively,” and the Economic and Social Council of the UN cautions that its “scope should not go beyond intentional crimes with lethal or extremely grave consequences.” Further clarifying the category, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions explained that the death penalty can only be imposed when “there was an intention to kill which resulted in the loss of life.”

According to Harm Reduction International (HRI), 33 of the 55 states that retain the death penalty apply it to drug-related offenses. These statistics, it might surprise you, already count the United States as one of those 33 countries. Though the United States has never executed anyone under the provision, 18 U.S.C. §3591(b) authorizes the death penalty for trafficking in large quantities of drugs and remains in force according to the Cornell Center on the Death Penalty Worldwide.

This might be less surprising when one realizes that the United States reserved the right “to impose capital punishment on any person [. . .] duly convicted under existing or future laws” when it joined the ICCPR. This reservation does not give the U.S. the right or ability, however, to opt out of existing customary international law. And that is precisely how international human rights lawyers and scholars increasingly view the abolition of the death penalty, particularly for drug-related offenses. Giving credence to this view, of the 33 countries that retain the death penalty for drug offenses, 17 of them have never executed anyone pursuant to those laws.

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Working women and evolving labor standards in U.S. and Canadian free trade agreements

My forthcoming article in the Comparative Labor Law & Policy Journal discusses and compares the evolution of labor standards in U.S. and Canadian free trade agreements (FTAs) since 2000.  It then assesses their usefulness as tools to improve IMG_0646working women’s rights.

With few exceptions, all U.S. and Canadian free trade agreements have included labor provisions since 1994.  They also contain procedures for members of the public to file petitions that trading partners have not met their labor obligations under FTAs.

After 2000, the governments of Canada and the U.S. both incorporated the 1998 ILO Declaration on Fundamental Principles and Rights at Work as the guiding standard for labor rights in free trade agreements.  The four core labor standards in the ILO Declaration are (1) abolition of child labor; (2) elimination of discrimination in the workplace and occupation; (3) elimination of all forms of forced or compulsory labor; and (4) freedom of association and the effective recognition of the right to collective bargaining.

My article examines the outcomes of a number of recent cases filed under the labor provisions of U.S. FTAs, including the U.S.-Bahrain FTA, U.S.-Peru FTA and the U.S.-Central America-Dominican Republic FTA (CAFTA-DR).   The article also compares civil society advocacy efforts in Canada and the U.S. related to the negotiation of free trade with Colombia and discusses the implementation of a Labor Rights Action Plan (LAP) between the U.S. and Colombia as a pre-condition for Colombia’s entrance into the U.S.-Colombia FTA.

A definite evolution is observed in the investigative methods, problem-solving techniques and types of remedies adopted in reports issued by the U.S. Department of Labor (USDOL) in response to public petitions filed under FTA labor provisions during the Obama Administration (2009-2016).  In addition to making fulfillment of certain labor standards commitments a pre-condition to formal entry of trade relations between U.S. and Colombia, USDOL (a) called on one trading partner to pass legislation prohibiting discrimination in the workplace (Bahrain); (b) worked with another trading partner to develop a method for denying export permits to companies that did not comply with labor court orders (Guatemala); and (c) timed the issuance of labor administration and/or elimination of child labor grants with the issuance of reports (Honduras, Dominican Republic).  USDOL also increased its capacity for addressing threats of violence against trade unionists in the territory of U.S. trade partners (Colombia).

Despite evidence of improvement in USDOL’s administration of labor petitions under FTAs since it first started receiving petitions in 1994, definitional shortcomings in U.S. FTA labor provisions weaken their utility as advocacy tools for workers as a whole and women in particular.

One problem is that only 75% of the ILO Declaration is incorporated into the definitions sections of the U.S.-Jordan FTA and CAFTA-DR.  Both agreements fail to specifically include equal pay for equal work for women and men and the elimination of workplace discrimination in the Definitions section for purposes of international dispute resolution.  This leads to textual uncertainty as to whether discrimination on the basis of sex or other grounds is covered.  As a result, gender-related claims in an omnibus petition filed about labor law and administration in Honduras were ignored in a 2015 USDOL report under the CAFTA-DR.  Ironically, comparison of the 2012 Honduras CAFTA-DR case with the 1997 Pregnancy Testing in Mexico case shows that the NAFTA has been a better advocacy tool for working women that the more modern CAFTA-DR.

Definitional shortcomings in post-NAFTA U.S. FTAs are not limited to incomplete incorporation of the 1998 ILO Declaration.  After 2000, U.S. FTA labor provisions limit the definition of “labor law” as applied to the United States to laws passed by the U.S. Congress.  This definition excludes all U.S. state labor laws, which cover compensation for workplace injuries, govern the time and manner of payment of wages, and guarantee trade union rights to state and local government employees.  My article shows how two 2012 reports released by the Government of Mexico about U.S. failure to comply with NAFTA labor obligations may have played a role in the U.S. decision to narrow the scope of the definition of U.S. labor law in FTAs.

In contrast, there is no such textual or definitional uncertainty in the labor provisions in post-NAFTA Canadian FTAs, which explicitly cover workplace discrimination and equal pay for women and men – as well as compensation for workplace injuries.  Canada currently has FTAs with labor provisions with Chile, Costa Rica, Peru, Colombia, Jordan, Panama, Honduras, South Korea and the European Union.  Canada also has Labor Cooperation MOUs with Brazil, Argentina and China.

The article shows how women’s rights advocates have creatively utilized FTA labor provisions as advocacy tools with mixed results  The most successful gender petitions focus solely on gender discrimination rather than burying gender claims in broader petitions.  Because of definitional shortcomings in U.S. FTAs, however, women’s rights advocates should consider filing labor petitions under Canadian FTAs in addition to or rather than U.S. FTAs.  Not only are the definitional provisions stronger, the petition procedures are very similar and Canada has stronger Equal Pay laws and culture.

Recently, Canada established itself as a leader on women’s issues by advocating for a gender chapter in the 2017 re-negotiation of NAFTA.  Mexico expressed support for the idea of a gender chapter, but observers opine that the U.S. would never agree to binding gender-related provisions in a renegotiated NAFTA – despite the fact that a non-binding 2012 U.S.-Mexico Memorandum of Understanding on Women’s Economic Empowerment is already in place.

As Mark Aspinwall rightfully pointed out in his August 2017 Forbes Op Ed, effective application of FTA labor and environmental provisions is heavily dependent on political will.  Even with strong political will backed by critical human and financial resources, the Obama administration’s free trade and labor agenda had some mis-steps and imperfect outcomes.  There is much work to be done to maintain the gains and momentum achieved.  Unfortunately, the current administration is already off to a bad start.  Congress has already called upon the Trump administration to ensure that U.S. trade partners Colombia, Dominican Republic, Guatemala, Honduras and Peru fulfill their commitments under ongoing labor action plans related to petitions filed under FTA labor provisions.  In addition to a lack of political will to address labor violations among trading partners, the current administration has not allocated sufficient human and financial resources to USDOL’s Bureau of International Labor Affairs to properly perform its duties.  In their September 19, 2017 letter to Trump adminstration officials, ranking Democratic members of the House and Senate called on USTR, USDOL and USDoS to fill five positions key to enforcement of FTA labor provisions.  Lack of political will and inadequate resource allocation risks slowing or stopping the evolution made by the last administration in the enforcement and application of labor provisions in free trade agreements.

On the Job! [Helton Fellowship]

On the Job! compiles interesting vacancy notices, as follows:
ASIL

 Applications are welcome from recent or current law graduates for the position of Helton Fellow.  The holder of this position receives funded contributions from ASIL members, interest groups, and private foundations to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas. Deadline is Monday, January 15, 2018; details here https://www.asil.org/about/helton-fellowship-program.

U.S. Government Sued Over Illegally Turning Away Asylum Seekers

Today several groups filed suit against the U.S. government’s Department of Homeland Security and the Customs and Border Protection (CBP) agency for turning away asylum seekers, contrary to domestic and international law.

Along the U.S.-Mexico border, asylum seekers arrived from all over the world to present themselves to CBP to ask for protection. The right to seek asylum is enshrined in Article 33 of the United Nations Convention on the Status of Refugees, which came into being in 1951 and was expanded by the 1967 Protocol. The United States signed the Protocol in 1968, enacting domestic law to implement the international agreement in 1980.  The U.S. is thus bound by the terms of the Protocol and the Convention itself, including, critically, the principle of non-refoulement — non-return of individuals to a place where they would  face persecution on account of one of the five protected grounds.

In recent years, however, CBP has been routinely turning away vulnerable asylum seekers, forcing them to return to Mexico without allowing them to pursue their right to claim asylum.  This illegal practice has worsened as CBP officers became emboldened following the election and inauguration of Donald Trump as U.S. President. Indeed, in January 2017, several groups filed a complaint with the Department of Homeland Security’s Offices of Civil Rights and Civil Liberties and Inspector General, alleging systemic abuses at the border. In March, the U.S. government failed to even show up to defend their practices before the Inter-American Commission for Human Rights, a session which included testimony from multiple groups on the illegal turning away of asylum seekers at the border.

To challenge the unlawful practice of turning away asylum seekers, today the American Immigration Council, the Center for Constitutional Rights, and Latham & Watkins LLP filed suit in federal court in California’s Central District. The plaintiffs are Al Otro Lado, a “national, direct legal services organization serving indigent deportees, migrants, and refugees in Tijuana, Mexico” and six of their clients. The lawsuit alleges that DHS and CBP have violated asylum seeker’s rights to seek protection, along with their due process rights under the Fifth Amendment to the U.S. Constitution, and violations of international law.

The plaintiffs’ stories are all too familiar to asylum lawyers based in the U.S. Personally, I Co-Direct the Immigration and Human Rights Clinic at the University of the District of Columbia’s David A. Clarke School of Law. Our current clients include several mothers fleeing violence in Central America who eventually made it into the U.S. after being illegally turned away. We work with survivors of extreme domestic violence and persecution at the hands of transnational criminal organizations, known as “maras,” were turned away at the border by officials with statements such as “There’s no asylum for people from Honduras…” or “You can’t get asylum because you’re scared of your husband.” These statements are patently false, of course, and the precedential Board of Immigration Appeals decision, Matter of A-R-C-G-made clear that individuals fleeing domestic abuse can meet the asylum definition.

As Karolina Walters of the American Immigration Council summarizes from the Complaint today, on their blog, “[o]ther examples of the tactics used by CBP officers against asylum seekers, include:

  • Misrepresenting that visas are required to cross at a POE or that asylum seekers must obtain a “ticket” from a Mexican government agency before they will be allowed to enter the United States to seek asylum;
  • Yelling profanities at an asylum-seeking mother and her 5-year-old son, throwing her to the ground, and forcefully pressing her cheek into the pavement; and
  • Coercing asylum seekers into recanting their fear on video and into withdrawing their applications for admission to the United States.”

The Washington Post quotes legal fellow, Katie Shepherd, also with the American Immigration Council  “‘[CBP officers are] getting very creative; we keep hearing new ways they’re turning people away. . . ‘If a single asylum seeker is denied in a day, that’s one too many.’”

It is, of course, a sad state of affairs that a lawsuit to protect the rights of asylum seekers is necessary. We can only hope that the Court will hold the government to account and the government will honor their legal obligations to protect refugees.

 

A Double Standard for White Terrorists

Almost immediately after it emerged that a white supremacist had stabbed three men who were trying to prevent him from attacking Muslim women in a Portland train, killing two of them, efforts at mitigation began.

“We don’t know if he’s got mental health issues,” Sgt. Pete Simpson said in the first public statement about the May 26 incident. Added the perpetrator’s childhood friend, “All I have to say is I hope this brings attention to the need for mental health facilities and more outreach.” His mother struck a similarly apologetic note: “He’s always been spouting anti-establishment stuff but he’s a nice person.”

Inevitably, those close to the perpetrator tried to explain away the hate that drove this crime. Yet what this individual did was fundamentally a political act, and in a country where politicians are increasingly wary of condemning racially motivated violence. In his trial for the Charleston shooting, another white racist, Dylann Roof, made clear the real motives for his crime: “I don’t want anybody to think I did it because I have some kind of mental problem. I wanted to increase racial tension.”

An act of terror by a self-identifying Muslim would never have been treated as apologetically as have the Portland stabbings and the Charleston massacre. Compare these reactions to those following the Boston Marathon bombing and the San Bernardino massacre. Why the double standard? Why do we excuse the racist hate that led the Portland stabbings and the Charleston shootings?

Among the most frightening aspects of the Portland stabbings is that the perpetrator, Jeremy Joseph Christian, 35, was long known to police and others as someone who endorsed murderous acts. To his Facebook followers, Christian’s willingness to kill innocent people should come as no surprise. But the authorities turned a blind eye to the threats that fill Christian’s public posts.

As his Facebook posts demonstrate, Christian made numerous appearances at white supremacist rallies in recent months. He was a well-known member of the Portland community, not an outsider, an alien, or an immigrant. He delighted in his own notoriety, noting in one post how a local reporter called him “the Lizard King.”

On May 9, Christian wrote on his Facebook page (still online as of this writing): “I want a job in Norway cutting off the heads of people that Circumcize [sic] Babies….Like if you agree!!!” More than two dozen of Christian’s Facebook followers signified their approval. One vowed to set up a fund to support “Americas newest hero Jeremy Joseph Christian.”

Christian began verbally attacking two women on a train, one of whom was wearing a hijab. Police said he “began yelling various remarks that would best be characterized as hate speech toward a variety of ethnicities and religions.” When three men tried to intervene, he stabbed them. Two of them—Ricky John Best of Happy Valley, Oregon, 53, and Taliesin Myrddin Namkai Meche of Southeast Portland, 23—died from their injuries.

At a court appearance this week, Christian was defiant, saying, “You call it terrorism, I call it patriotism!”


Had Christian been deploying the rhetoric of ISIS on Facebook, he would have been under FBI surveillance. Why, then, are white supremacists allowed to threaten violence against innocents while authorities look the other way? Why are people still willing to make excuses when expressions of racist hate turn into racist action?

In stark contrast, Egyptian-American Tarek Mehanna was sentenced to seventeen years in prison exclusively on the basis of his association with jihadist ideology, and not for any specific act of violence. But whereas Mehanna was immediately incarcerated for his support of violence, Christian’s threats have been ignored, or tolerated, by the authorities. Like many white supremacists, the perpetrator of the Portland stabbings was regarded prior to his murders as merely a nuisance by authorities.

Like Christian, Mehanna supported an ideology that is associated with violence. Both ideologies must be condemned. Yet the point here is that Mehanna was imprisoned for his views, while white supremacists like Christian are all too often tolerated until blood is spilled.

The fight against racism is a battle that cannot be abdicated to others. It has poisoned this country and will continue to do so until white racism is taken as seriously as the terror that clothes itself in Islamic rhetoric.

I passed much of my adolescence on Portland’s streets. I attended poetry readings in Portland cafes and volunteered in soup kitchens, and hanging out in Powell’s, the country’s biggest bookstore. The violence of the past few days does not represent the Portland I know. However, it does represent a plausible future for a country increasingly driven by an ideology that must be actively resisted rather than silently condoned.

 

Cross-posted from The Progressive