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.  

Not-marchers on the march

nobloodforoilSo, I don’t march.

I stayed home when millions protested the invasion of Saddam Hussein’s Iraq. Stayed home for “No Blood for Oil” too (though I did have the T-shirt, at left). Avoided the streets of my Paris sabbatical home on May Day 2002, when half a million marched to the chants of “Là-Bas Le Pen.”

Pretty much avoided all public demonstrations since childhood, never having really seen the point of taking to the streets instead of concrete action – that is, instead of litigating/teaching/reasoning/writing/policymaking toward lasting solutions.

So why march today?

► Because the promise of the election of Barack Obama – hands down, the best President of my lifetime – so soon was dashed by never-believed yet oft-repeated undercuttings of his citizenship. The spurious claims and the events that ensued sunk the hope that had lifted many of us in 2007 and 2008. Fell particularly hard on those of us who are immigrants, or who count immigrants among our loved ones.

aliceroom3Because in the last years we’ve been forced to swallow bile: cruel falsehoods about the 1st woman to be nominated by a major U.S. political party; harsh slaps against everyone who has endured sexual assault; soulless insults about every disadvantaged group imaginable.

► Because Looking-Glass intrigue belongs to the fantasy world of Lewis Carroll, not to the real world in which we all must live.

Because aspirations to human dignity, equality, liberty, and justice, without borders, will not withstand anti-“globalist” attack unless those of us who hold these values dear come to their defense.

Because if we fail to object, we fail our children.

To quote other ‘Grrls:

“It seems like a day when numbers matter.”

“I couldn’t not go.”

And so even we not-marchers march, in D.C., in Philadelphia, and, at last count, in nearly 700 other places around the world.

march

Read On! ‘Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability’

I am thrilled to post for the first time in IntLawGrrls and to share the publication of my book Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability (Hart Publishing, 2016).

This book considers the potential of human security as a protective tool within the international law of human rights. Indeed, it seems surprising given the centrality of human security to the human experience, that its connection with human rights had not yet been explored in a truly systematic way. The book attempts to address that gap in the literature and sustains that the human rights of persons, particularly those facing structural vulnerability, can be addressed more adequately if studied through the complementary lens of human security and not under human rights law alone. It takes both a legal and interdisciplinary approach, recognizing that human security and its relationship with human rights cuts across disciplinary boundaries.

Human security with its axis of freedom from fear, from want and from indignity, can more integrally encompass the inter-connected risks faced by individuals and groups in vulnerable conditions. At the same time, human rights law provides the normative legal grounding usually lacking in human security. International human rights norms, individualistic in nature and firstly enacted more than sixty years ago, present limits which translate into lack of protection for people globally. As a result, the collective and contextual conditions undergone by persons can be better met through the broader and more recent notion of human security, which emphasizes ‘critical (severe) and pervasive (widespread) threats’, and accentuates socioeconomic vulnerabilities as authentic security concerns. Indeed, as signaled by Sadako Ogata, human security is ‘the emerging paradigm for understanding global vulnerabilities’.

The analysis follows a two-part approach. Firstly, it evaluates convergences between human security and all human rights – civil, political, economic, social and cultural –and constructs a general framework for thought and action, the ‘human security – human rights synergy’. Secondly, it goes on to explore the practical application of this framework in the law and case-law of UN, European, Inter-American and African human rights bodies in the thematic cores of 1) violence against women and girls (VAW); 2) undocumented migrants and other non-citizens such as asylum-seekers and refugees; converging in 3) a particular examination of the conditions of female undocumented migrants. In the last chapter, the book systematizes this evidence to reveal and propose added values of human security to human rights law; and inversely, it indicates how human rights standards/indicators can deliver a needed more precise, normatively grounded and operational conception of human security.

These ‘interpretative synergies’ offer promise for shifting the boundaries of international human rights law: in constructing integrative approaches to fill legal gaps, better prevention and addressing protectively collective threats, and –in the spirit of the Universal Declaration of Human Rights- creating an ‘enabling environment’ to fulfil all human rights, especially for those not only confronting isolated moments of risk or individual human rights violations, but rather conditions of structural vulnerability affecting their everyday lives. Continue reading

The “Rights of Aliens” in Brazil – Beyond the use of a Mistaken Term

The “rights of aliens” in Brazil – beyond the use of a mistaken term

As it is widely known, the settlement of people in Brazil mainly occurred through immigration of the Portuguese, as well as of the people being brought from Africa (because of the Atlantic slave trade). Now, however, Brazil receives people from many different nations. These newcomers glimpse in Brazil the opportunity to undertake their businesses, complete or start their studies, or even escape from dire situations in their home countries.

According to Brazil’s last census, there were 431,319 foreigners living in Brazil in 2010.[1] In comparison to the census of 2000 (510,067 foreigners), the number of foreigners in the country has decreased. [2] However, the last census did not include either the massive inflow of Haitians Brazil has been receiving since the end of 2010, nor the current global refugee crisis, which Brazil, in a smaller proportion, is also experiencing.[3]

Foreigners in Brazil have their rights guaranteed by the Brazilian Foreigners’ Statute, which regulates the entrance, permanence, and compulsory departure of a foreigner in the Brazilian territory.[4] This Statute is, together with some specific refugees’ protection instruments as well as with the Brazilian Constitution, the most important legal instrument for the protection of all foreigners in Brazil.

The Brazilian Constitution was brought to life after the Foreigners’ Statute and it grants an equal treatment of both Brazilians and foreigners. Article 5 of the Constitution states that all people are equal before the law, i.e., all Brazilians and foreigners residing in Brazil are entitled to the inviolability of the right to life, freedom, equality, security and property: the so-called fundamental rights.[5] From the literal interpretation of Article 5, it could be understood that only the foreigners residing in Brazil have their fundamental rights guaranteed. However, the doctrinal interpretation[6] and the courts[7]  understand that the text of this article takes into account all immigrants, including the nonresidents in Brazil.

Further, according to Article 95 of the Brazilian Foreigners’ Statute, foreigners living in Brazil are entitled to the same legal treatment as Brazilian citizens.

In April 2016, however, some of the fundamental rights of foreigners living in Brazil were jeopardized. The National Association of Federal Police Officers (FANAPEF) has issued a polemic press release on its website. That press release recalled that, in the territory of Brazil, foreigners are prohibited from not only supporting any political position, but also from taking part in any demonstration or from organizing and taking part on reunions of any nature.

Less than one month after this press release, for example, an Italian citizen who works as a professor for a Federal University in the State of Minas Gerais was under formal police investigation for being active inside political parties, taking some political actions and taking part in demonstrations.[8]

FANAPEF has supported its press release on Article 107 of Brazilian Foreigners’ Statute, which states (among other points) that foreigners cannot exercise political activities in Brazilian territory, and cannot (directly or indirectly) interject into Brazil´s public issues. In this sense, the same article prohibits foreigners from maintaining any political society, group or entity or from organizing demonstrations that aims at discussing either Brazilian internal issues, or political issues of their home countries.

Continue reading

Call for Papers: Critical Approaches to Irregular Migration Facilitation: Grounding the Theory and Praxis of Human Smuggling

The facilitation of irregular migration – labelled by the state as migrant, people or human smuggling – has been primarily articulated as a violent, exploitative practice under the control of transnational crime. It has also been tied to often problematic articulations of class, race, gender, informal forms of labour and sex work. Furthermore, the language of crisis, crime, violence and humanitarianism often associated with references to smuggling has reified specific geographic locations and their people as inherently dangerous and in need of surveillance and control. Amid this context, the explosive militarization of border control practices and stricter immigration criminalization policies have been articulated as the only effective measures to fight the alleged spread of smuggling, depicted as a global security threat under the control of networks of vast, dark reach. The migratory flows in the Mediterranean, the Horn and the North of Africa, the Pacific, the Middle East, the US Mexico Border and Central and South America; the punitive efforts to control human mobility and the narratives pertaining to transits and their facilitation are clear examples of this approach. More often than not unintended outcomes have ultimately outweighed national security and border protection policy. The vast border and immigration enforcement systems have prompted spiralling financial costs. Attempts to block or contain migration routes have only redirected unauthorized migration flows into more dangerous and remote routes, leading to the injury, death and disappearance of thousands of people on the move. Furthermore, border enforcement has played a role in the very reliance of migrants and refugees on often dubious facilitators of migration services or criminally-organized entities that engage in specific forms of violence.

Amid the panic caused by the overly-simplistic, fear-driven narratives of smuggling and those behind their facilitation, the social, economic, cultural, moral and affective significance of smuggling to and from the perspective of its actors (facilitators, clients, their families and communities) has remained vastly unexplored. To this date, narratives of tragedy, death, graphic violence, and transnational crime have continued to obscure the basic realization that the facilitation of irregular migration is ultimately a response to the lack of channels for legal entry and transit to which so many yet specific few are subjected.

Building on the experience at the European University Institute in Florence in the Spring of 2016, this second edition of the Smuggling Workshop seeks to continue the conversation towards empirically grounded smuggling research, a field often silenced by the onslaught of anecdotal evidence or technocratic-legalistic perspectives concerning the facilitation of irregular migration. This time around the workshop will have a particular focus on collectively building the theory and documenting the praxis of human smuggling, relying on the empirically documented perspectives of its actors. This workshop is a collective effort to comprehend the ways in which migrants, refugees, their families and communities along with those facilitating their transits perceive, talk about, and partake in the phenomenon. The workshop takes place at a critical time in migration studies, when despite the vast abundance of scholarship on the lives of migrants and refugees, grounded empirical work on the processes involving their journeys and the effects and affects in them interwoven is still scant and scattered across the disciplines.

A gathering of innovative and critical voices in smuggling from academic and policy circles, the workshop seeks to consolidate the creation of an interdisciplinary and global collective of professionals engaged in the empirical study of migration facilitation that integrates perspectives from the global north and south. With this goal in mind, we invite abstracts on the theme of irregular migration/human mobility facilitation for an international workshop to be held on April 6, 7 and 8, 2017 at the University of Texas at El Paso. We seek to bring together critical, empirical engagements on the facilitation and brokerage of irregular migration as witnessed locally, regionally and comparatively.

Some themes to consider include theoretical and empirical engagements with:

  1. The political economy of human smuggling/facilitation of irregular migration
  2. Trans-Local/trans-regional/global smuggling practices
  3. Comparative and historical perspectives on smuggling
  4. The converge of migration facilitation with other criminal/ized markets and/or practices
  5. Smuggling, trafficking and “modern day slavery”
  6. Etiology of violence and victimization in smuggling
  7. Philosophical, ethical and moral dimensions of smuggling
  8. Race, class and gender as manifested in smuggling practices and smuggling research
  9. Theory and methods in smuggling research and their implications and critiques
  10. Anti-smuggling law enforcement and prevention campaigns (risks, side-effects and consequences)
  11. Role of stakeholders in anti-people smuggling operations (IOM, UNODC, Frontex, CBP, ICE, etc.)
  12. Global migration governance and domestic law initiatives on anti-people smuggling measures

OUTCOMES

Building on the experience of the first workshop, selected contributions will be part of a series of proposals for special issues and/or edited collections on the facilitation of irregular migration. We look forward to receiving and considering submissions that encompass the complexity of migration facilitation across and within regions, regimes and time periods, and for selected participants to be engaged in the publication process.

SUBMISSIONS

Preference will be given to work that draws on ethnographic research. Please submit a 250-300 word abstract to smugglingworkshop@gmail.com by November 15th, 2016. Participants will be notified of their acceptance by December 1st, 2016. Organizers will provide verification letters for participants requiring visas. Workshop papers are due by March 15th, 2016. Please be advised that as a condition of your acceptance, and given the working, creative and intensively collaborative nature of this second edition of the workshop, all participants must commit to submit their work by the deadline.

FURTHER INFORMATION

The workshop will be held at the University of Texas in El Paso, Texas (USA) from April 6-April 8, 2017.

Questions can be addressed to the organizers, Luigi Achilli at the European University Institute (Luigi.Achilli@eui.edu), Antje Missbach at Monash University (antje.missbach@monash.edu) and Gabriella Sanchez at the University of Texas at El Paso (gesanchez4@utep.edu).

Will a UN summit on migration change anything?

On September 19, the UN Secretary-General will convene a summit meeting at the UN General Assembly in New York to address current “large movements of refugees and migrants.” Its goal is to ensure a re-commitment to the core principles of refugee protection and discuss new frameworks to respond to the increasing number of people on the move.

Without wanting to pour cold water over a meeting that is, in and of itself, a positive move – after all, lack of coordination is often a key stumbling block to protection – the process is unfortunately fundamentally flawed. The summit brings together States, and therefore will be strongly influenced by government agendas. And those governments that are driven by the political need to limit mobility (keep people out), and by the imperative to contain and ghettoize them if they do get in, are among the loudest and most powerful.

On paper, restricting the movement of people might seem like a good way to reduce the global migration crisis. It is certainly politically expedient, and by limiting the number of people on the move eventually it might stop looking like a crisis. In practice, of course, this is almost impossible to achieve. And if it did happen, it would be at an unbearable cost to those for whom staying behind is simply not an option. People will still move, but they will do so without protection and below the official radar, which benefits no-one.

So why this fear of movement? After all, the movement of people is as old as humanity itself and rather than being made illegal, it needs to be accepted as the norm. Movement is one of the key coping strategies for people caught up in situations where violence and threat compels them to seek safety and livelihoods elsewhere. Yet mobility (forced or otherwise), rather than being seen as an important coping strategy for individuals, continues to be seen as a challenge to state sovereignty. As a result, it fails in fulfilling its potential to contribute to protection with policy structures, securitised narratives around refugees and migrants, and broader issues of xenophobia limiting its implementation. People are moving all the time. But they are often doing so despite the policy context, not because of it; and often in extremely dangerous circumstances as a result.

Of course, on paper the summit meeting is seeking to do exactly this – to regularise and monitor the movement of people. However, for as long as good intentions continue to be blocked by political priorities, in practice they will remain just that – good intentions.

At the same time, the containment and ghettoization of those who do manage to gain access to wealthier states continue to push refugees and migrants to the margins of societies, thereby emphasising and maintaining their exclusion.

That is not to say that refugees and migrants do not show extraordinary resourcefulness in finding spaces for inclusion. Indeed, many forge local forms of belonging, not least through seeking out economic and social resources despite broader political exclusion. However, the precariousness of their situation remains a dominant feature of their lives, and the parameters for discussion need to be broadened. In particular, there needs to be a far more robust focus on creating spaces for belonging that draw people in from the margins.

Indeed, it is interesting to speculate that if post-9/11 US foreign policy had not been driven by the idea of a “war on terror” but rather by a war on marginalisation, the current contours of displacement around the world, particularly in the Middle East, would likely be significantly different. The extent to which the war on terror has sustained and exacerbated marginalisation by creating foot soldiers living on the edges of society who can all too easily be deployed by those intent on generating violent extremism, has been a foreign policy disaster. At the same time, the extent to which this same “war on terror” has validated the growing securitisation of foreign policy has further entrenched the divide between insiders and outsiders.

Migrants – both forced and otherwise – have been particular victims of this approach. In a global context in which there is shrinking asylum space, and where increasingly refugees and migrants are being associated, however falsely, with violent extremism, it has become increasingly difficult for asylum seekers, migrants and refugees – regardless of categorisation – to access places of safety.

Of course, this is not the whole story. Many respond to the arrival of strangers with empathy and a determination to help. And equally, it is important not to characterise refugees and migrants merely as victims of these circumstances.

So will the meeting in New York change anything? Probably not. The fundamental problems facing refugees do not lie in the substance and structures of protection – after all, the principles of integration and safe movement are all there in the 1951 Refugee Convention. They lie in the political will to implement these ideas. Without addressing the realpolitik that continues to drive practice, therefore, any new ideas – or the repacking of old ideas – will continue to be palliative.

Instead, far more needs to be done to persuade governments of the benefits in ensuring that policies pull people into the centre rather than polarise and exclude them; and draw on, rather than negate, the creativity that refugees and migrants demonstrate in their quest to forge spaces of belonging.

In the meantime, refugees and migrants will continue to challenge the parameters of policy and practice, and will continue to test our political imaginations. And long may they do so. Rather than sitting around waiting for the world’s leaders to sign onto agreements, against the odds thousands of refugees and migrants are sending their children to school, generating livelihoods and negotiating their way through exile and through journeys, however precarious. But it should never be this hard.

Go On! TODAY: IntLawGrrls present panel on int’l human rights, family detention at California Bar Annual Meeting

Last minute announcement! Today, October 9th at 1:30 p.m., IntLawGrrls Deepali Lugani and Mary Hansel will moderate a panel on the international human rights implications of the recent U.S. detention of migrant families at the border.  The panel is in conjunction with The State Bar of California’s Annual Meeting in Anaheim, CA, and features distinguished panelists Peter Schey (lead counsel for the Flores litigation regarding family detention in Dilley, TX), Brian Hoffman (lead attorney for the CARA Pro Bono Project in Dilley, TX) and IntLawGrrl Shana Tabak (Assistant Professor at Georgia State University with a focus on the intersection of family detention and international law).  Please stop by if you are attending the Annual Meeting.