Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Come on Over: Uganda Opens Doors for Southern Sudanese Refugees While the Rest of East Africa Sleeps

 

J. Michal Forbes

 

Tucked away south of South Sudan and north of Tanzania lies Uganda, the Pearl of Africa.[i]  Located on the north shores of Lake Victoria, Uganda is known for its delicious fresh fruit and its vast number of gorillas.[ii]

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In a mere six months, the Ugandan government built the Bidi Bidi settlement, which is one of the largest refugee settlements in the world.[iii] There are currently more than 600,000 South Sudanese living in Uganda and thousands more cross the border every day.[iv] The UN estimates there will be an additional 300,000 entering Uganda in 2017, with 86% of refugees being women.[v] 

South Sudan, despite being one of the newest nations in the word, is on the brink of an ethnic civil war.[vi] Hostilities between the Dinka, the largest ethnic group in the country, and the Nuer have led to the death of over 300,000 people. Despite outside attempts to initiate peace agreements and a ceasefire, the violence still continues in Juba, the capital.[vii] As a result, thousands of South Sudanese people are fleeing, typically by foot, to Uganda, in hopes of escaping the violence.

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A sign welcoming visitors to South Sudan

Uganda is not without its own problems, however. In recent years, Uganda has made headlines for its corrupt political practices, criminalizing homosexuality and soaring poverty rates.[viii] Yet, Uganda has a surprisingly  unusual open policy that allows refugees to own land, receive an education, and work.[ix] In fact, Uganda is the third largest refugee-hosting country in Africa after Ethiopia and Kenya. [x]  The country’s approach to refugees focuses on community integration, in hopes that the burden will be less on the economy because of the integration.[xi]

Considering that Uganda has a significant over-population problem that strains its government’s finances, it is surprising that they have opened their borders to South Sudanese refugees. According to the World Bank, Uganda’s population grew from less than 9 million in 1969 to over 41 million in 2014.[xii]  Additionally, Uganda has the fifth highest total fertility rate in the world with almost 6 children born per woman.[xiii] Uganda remains one of the poorest countries in the world, with most people living off of US $1.90 a day.[xiv]

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A South Sudanese baby being immunized[xv]

Unfortunately, in December Bidi Bidi had to stop allowing in new refugees, except for those uniting with family. Reports have said that Bidi Bidi is transforming from a refugee camp to an actual community. Uganda is getting outside financial assistance from UNHCR and Medical Teams International who work with the refugee population to bring them much needed resources. However, the refugees still need a lot more help than what Uganda can give. It will take help from outside international organizations in order to ensure that the refugees get the proper schools, homes and educational opportunities they need in order to fully integrate into the Ugandan community.

The question arises, if Uganda, a country that is economically strained and does not has limited resources is able to accept over half a million people from the South Sudan, when will the rest of the world pitch in and help? The whole premise of Africans helping Africans is inspiring, however the impact of the South Sudan civil war can cripple East Africa’s regional economy and security.[xvi]

In order for the crisis in South Sudan to not to severely cripple East Africa’s region, it is vital that the East African Community as a whole adopts similar policies as Uganda. The East African Community, or EAC, is comprised of Burundi, Kenya, Rwanda, South Sudan, Tanzania and Uganda. The EAC is focused more on economic and trade development in the region and less with humanitarian aid.

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The East African Community Logo[xvii]

It would be beneficial if the EAC would borrow from the Economic Community of West African States (ECOWAS) by adopting a policy of “community citizens”, in which all citizens of the 16 states that comprise ECOWAS can reside in community member states. The treaty establishing the EAC does mention that “’partner states undertake to establish common mechanisms for the management of refugees’”, but no action has ever been taken.[xviii] Considering that South Sudan is a member state of the EAC, the other states should accept refugees similarly to Uganda.

If not, Uganda will be only country in East Africa that South Sudanese refugees can enter, live in and prosper. The semi-stability that EAC has enjoyed over the last few years could be adversely impacted. Once the dominoes start to fall in the region, it will be hard to pick them back up again.

J. Michal Forbes is a proud native of Prince George’s County, Maryland, Ms. Forbes has a fiery passion for international law, travel and frozen yogurt. After receiving her B.A. in Political Science from the University of Maryland, Baltimore she taught ESOL in the Washington, D.C. Metropolitan area before joining the US Peace Corps in 2011. Ms. Forbes served in the Peace Corps in Ukraine from 2011 to 2013, in a small town between the Red Sea and the Black Sea in Crimea. Fluent in Russian, Ms. Forbes soon caught the travel bug and traveled/worked extensively throughout Eastern Europe during her 27 month commitment. Currently a 3L, Ms. Forbes is a member of the International Law Society, Immigration Law Society, Black Law Student Association and the Women Lawyers as Leaders Initiative. She has worked for Maryland Legal Aid and the NAACP’s Office of the Attorney General. She was recently awarded the honor of being named Article Editor with the University of Baltimore Law Forum, a scholarly legal journal focused on rising issues in Maryland. It is her dream to work for the U.S. government assisting with asylum seekers and refugee.  In her free time, Ms. Forbes enjoys eating frozen yogurt with her husband and learning Arabic.

 

[i] Uganda, Global Interlink, http://www.global-interlink.org/id2.html    

[ii] 21 Interesting Facts About Uganda You’ve Never Heard Before, BuzzKenya, http://buzzkenya.com/facts-about-uganda/

[iii] Uganda’s sprawling haven for 270,000 of South Sudan’s refugees, The Guardian, https://www.theguardian.com/global-development/2017/jan/24/uganda-sprawling-haven-for-270000-of-south-sudans-refugees

[iv] South Sudan Region Refugee Response Plan: January – December 2017, UNHCR, available at http://www.unhcr.org/578f2da07.pdf

[v] Id.

[vi] UN: South Sudan on brink of ethnic civil war, Al Jazeera, http://www.aljazeera.com/news/2016/12/south-sudan-brink-ethnic-civil-war-161214104548897.html

[vii] Violence, fear and looting grip South Sudan’s capital Juba, The Guardian, https://www.theguardian.com/global-development/2016/jul/19/south-sudan-violence-fear-looting-juba

[viii] Uganda’s Deteriorating Human Rights Record up for Review, Human Rights Watch, https://www.hrw.org/news/2016/11/02/ugandas-deteriorating-human-rights-record-review

[ix] Is Uganda the best place to be a refugee?, The Guardian, https://www.theguardian.com/global-development-professionals-network/2016/aug/20/is-uganda-the-best-place-to-be-a-refugee

[x] id.

[xi] Uganda’s sprawling haven for 270,000 of South Sudan’s refugees, The Guardian, https://www.theguardian.com/global-development/2017/jan/24/uganda-sprawling-haven-for-270000-of-south-sudans-refugees

[xii] Uganda Populations, worldometers, http://www.worldometers.info/world-population/uganda-population/

[xiii] Uganda: The World Factbook, Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/ug.html

[xiv] Poverty headcount ratio at $1.90 a day (2011 PPP) (% of population), http://data.worldbank.org/indicator/SI.POV.DDAY

[xv] South Sudanese Refugees are Flowing into Uganda at an Unprecedented Rate, The World Post, http://www.huffingtonpost.com/entry/south-sudanese-refugees-uganda_us_582dbecae4b099512f810c15

[xvi] South Sudan civil war: What it means for East Africa, Blasting News, http://us.blastingnews.com/world/2016/07/south-sudan-civil-war-what-it-means-for-east-africa-001011003.html

[xvii] Taken from the East African Community Website, http://www.eac.int/

[xviii] The East African Community and the Refugee Question, The Society for International Development, http://www.sidint.net/content/east-african-community-and-refugee-question


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“They Who Shall Not Be Named”: The Unspoken Situation in Myanmar

Kia Roberts-Warren

On September 14, 2016, State Counsellor, Aun San Suu Kyi, came to visit the United States hoping to get the rest of the U.S. imposed sanctions lifted. The United States announced that it planned to lift the rest of the sanctions and reinstate trade benefits after a meeting between Suu Kyi and President Obama. In May, President Obama had lifted some sanctions due to the political reforms in Myanmar that began five years ago.[1] This announcement has been seen as another great victory for Myanmar. First, Myanmar has successfully transitioned from a military regime to a democracy. Second, the country’s de facto leader is a 71-year-old, a Nobel Peace Prize winner woman.[2]

The country has really transformed and improving for the better, right!? Well, this isn’t entirely true. Myanmar has a dark horrifying situation that has been going on for decades,  serious human rights violations that could amount to crimes against humanity against: the Rohingya.

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WHO ARE THE ROHINGYA?

Myanmar has recognized 135 minority groups within its country. However, it refuses to accept its 136th: the Rohingya. The Rohingya, are a Muslim group located in the Rakhine State of Myanmar and make up one third of Rakhine’s population.[3] While, Myanmar is a predominately Buddhist country and the Rakhine State is the poorest and least developed state in Myanmar.The poverty and religious differences are part of the conflict between the Buddhists and the Rohingya. However, the Buddhist population claim that due to the belief that the Rohingya are descendants of Bengali migrants that were used as laborers and later fighters during British  Occupation.[4] However, the Rohingya claim they are indigenous to the Rakhine State.[5]

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“THE MOST PERSECUTED REFUGEES IN THE WORLD”

Since the 1960s, the Rohingya had to flee to Bangladesh to escape the human rights abuses they suffered at the hands of the army and government. In 1982, the Myanmar government passed a law denying the Rohingya citizenship. The Rohingya have suffered torture, cruel, inhuman, and degrading treatment and punishment, extra-judicial killing and summary execution, arbitrary arrest and detention, rape, destruction on homes, forced labor, forced relocation and eviction, confiscation of land and property.[6] Since the 1980s, many mosques and religious schools have been demolished and repairs to any mosque are often prohibited. Also, Muslim cemeteries, monuments, places and historical sites are often appropriated by the government or destroyed. In the 1990s, the State, Peace, and Development Council policies have been using discriminatory practices aimed at reducing the Rohingya in the Rakhine State.[7] Since 2001, traveling restrictions have been placed on the Rohingya. They are required to have a traveling pass to travel within the townships and outside of the Rakhine State.[8]

In 2012, tension turned into violence. A Rakhine State Buddhist woman was raped and murdered, allegedly by a group of Rohingya men. Buddhists nationalists burned Rohingya homes and killed more than 280 people and tens of thousands of Rohingya were displaced. Currently, more than 120,000 Muslims are being housed in forty internment camps.[9]  The Ma Ba Tha, a group of radical Buddhists, have since been on a campaign of ethnic cleansing. They will target anyone offering a different opinion or speaking for non-discrimination, although their attacks and threats are primarily directed against the Rohingya[10]

“NOBODY KNOWS THE TROUBLE I’VE SEEN”

In 2012, 86,000 Rohingya fled to neighboring countries. The Rohingya have been denied resettlement in Indonesia, Thailand, Bangladesh, Malaysia, and Australia.[11] The Rohingya are, essentially, stateless. They are denied basic rights-freedom of movement, access to education and services, employment, property, and healthcare. Since they are not considered citizens of Myanmar, they lack the proper identification documents needed to become a citizen anywhere else. On March 31 2015, all temporary registration cards, the main identification document held by Rohingya expired. In June, the Government announced that those who had submitted their card by the deadline (approximately 469,000 people) were eligible to apply for new identity cards.[12] However, many Rohingya do not trust the government and therefore have not gotten new cards. The only identification some Rohingya have managed to have is a household registration card. The situation became dire between January 2014 and May 2015 when more than 88,000 Rohinya fled to the Bay of Bengal. This resulted in thousands being abandoned and stranded at sea.

Migration

In May 2015, due to international pressures over the migration crisis Bangladesh, Malaysia, Thailand, and Indonesia have been playing a game of Maritime ping pong.[13]

  • Bangladesh: more than 32,000 Rohingya have been registered refugees and it is believed that more than 200,000 additional unregistered Rohingya refugees are there but the refugee camps are horrific which caused many to flee to the Bay of Bengal.
  • Malaysia: In June 2016, Malaysia reported 150,700 registered refugees; 90% are Rohingya but have no legal status and therefore unable to work and denied the same rights
  • Indonesia: the numbers are relatively low and under international pressure admitted 1,000 Rohingya with emergency assistance and protection.

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“CHANGE’S A COMING??”robertswarren_blog1_photo1

In August, one month before her visit to the United States, Suu Kyi announced the establishment of a nine-person committee, led by former UN Secretary-General Kofi Annan, to provide options and suggestions to the government for resolving the ethnic conflict in the Rakhine State.[14] The final report of the committee is due at the end of August 2017.[15]

   While this represents a step forward, there are no Rohingya on the committee and the Rakhine State is one of the most xenophobic areas in the world. This could cause a problem for Mr. Annan as the new Myanmar government has not taken an active role in taking a stance for the Rohingya. In fact, Suu Kyi instructed the new U.S. ambassador not to use the term Rohingya and she herself has never addressed the Rohingya as Rohingya.[16] Furthermore, in the past Suu Kyi stated that “she didn’t know if the Rohingya could be considered citizens” and recently “that everyone who was entitled to citizenship should get it.”[17] However, her feelings are not just targeted at the Rohingya, but have more of an anti-Muslim sentiment, in general.[18] It will be interesting to see if this committee will be effective at all in assessing and resolving the situation.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program.  

[1] http://www.usnews.com/news/politics/articles/2016-09-14/sanctions-relief-on-agenda-as-myanmars-suu-kyi-meets-obama

[2] http://www.independent.co.uk/news/people/un-general-assembly-speech-aung-san-suu-kyi-pledges-to-uphold-minority-rights-in-un-speech-but-a7322051.html

[3] http://www.cfr.org/burmamyanmar/rohingya-migrant-crisis/p36651

[4] https://thinkprogress.org/us-myanmar-rohingya-898dbe242c0e#.di5fy9qx0

[5] https://thinkprogress.org/us-myanmar-rohingya-898dbe242c0e#.di5fy9qx0

[6] http://www.cfr.org/burmamyanmar/rohingya-migrant-crisis/p36651

[7] http://minorityrights.org/minorities/muslims-and-rohingya/

[8] http://minorityrights.org/minorities/muslims-and-rohingya/

[9] http://www.cfr.org/burmamyanmar/rohingya-migrant-crisis/p36651

[10] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/055/13/PDF/G1605513.pdf?OpenElement

[11] http://www.amnesty.org.au/refugees/comments/35290/

[12] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/055/13/PDF/G1605513.pdf?OpenElement

[13] http://www.cfr.org/burmamyanmar/rohingya-migrant-crisis/p36651

[14] http://www.cfr.org/burmamyanmar/rohingya-migrant-crisis/p36651

[15] http://www.cfr.org/burmamyanmar/rohingya-migrant-crisis/p36651

[16] https://thinkprogress.org/us-myanmar-rohingya-898dbe242c0e#.di5fy9qx0

[17] https://thinkprogress.org/us-myanmar-rohingya-898dbe242c0e#.di5fy9qx0

[18] https://thinkprogress.org/us-myanmar-rohingya-898dbe242c0e#.di5fy9qx0


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Nowhere to Call Home: The sad state of the Island of Hispaniola

Carolyn Mills

Many know it as a beautiful vacation paradise, the Dominican Republic wrought with its lush greenery and beaches, perfect beach getaways and Groupon vacation packages. This summer a disturbing, and not very publicized trend, was happening—the Dominican Republic deported nearly 130,000 Haitians (with whom it shares the island). Why? The answer may alarm you.

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What’s happening?

Since May 2015, nearly 106,000 Haitians were deported or left the Dominican Republic. [1] In 2013, a Dominican court ruling said that, anyone born in the Dominican Republic to “parents without legal residency would no longer be considered Dominican.” [2] As a result of this ruling, nearly 250,000 people became stateless. Those affected were offered a one year, temporary residency card even though they had been born and spent their entire lives in the Dominican Republic. [3] Unfortunately, many of those stripped of their Dominican citizenship are not citizens of Haiti either. [4]

After the court ruling, the legislature made a lackluster effort to ameliorate the devastation caused by enacting Law 169-14. The law placed the burden on the victims, demanding they provide record of their birth in the Dominican Republic.  [5] This, seemingly, good faith measure to assist those disenfranchised Dominicans is hardly altruistic, as many Haitians were denied the ability to register the births of their children simply because they were of Haitian descent. [6] When the registration deadline expired under Law 169-14, many were forced flee to Haiti, or were rounded up by police and forcibly deported. [7] These laws closely mirror that of The Nuremburg Laws of 1935, which essentially stripped the Jews living in Germany of their German citizenship.   It is alarming that a court decision in 2013 can be so reminiscent of such days.  If left unchecked, it’s unimaginable what the ramifications could be. 

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Further, the court ruling is a direct violation of the Universal Declaration of Human Rights. Article 15 states, “Everyone has the right to a nationality, and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” [8]  Additionally, the United Nations in 1954 Convention Relating to the Statelessness of Persons and defined statelessness and established a minimum number of rights for these individuals including: education, employment and housing—all of which have been deprived from those of Haitian descent who are being forced to leave their homes and communities. In 1961, the Convention on the Reduction of Statelessness went on stress the importance of states establishing measures in which to avoid stateless persons; establishing the right to nationality.

Origins

Called the Dominican Republic’s “most serious human rights problem,” [9] discrimination against Haitians and those of Haitian descent finds its roots in history.[10] The two nations maintained a close relationship, with many Haitians supporting the growing Dominican economy by providing labor for sugar plantations, and development of infrastructure. There was a history of disdain for Haitians in the Dominican and in 1937 it came to an ugly head when, the government conducted a mass genocide of nearly 30,000 Haitian immigrants and their Dominican children, known as the Parsley Massacre. [11]  The massacre was spearheaded by former dictator Rafael Trujillo who was a staunch xenophobe. During the massacre, military officials were instructed to ‘test’ those suspected of being Haitian by holding up a sprig of parsley and asking them what it was. If the person did not roll the ‘r’ in the word, (“perejil”) they were killed.

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This ethnic cleansing, while no longer of genocidal proportions, has become a form of institutionalized racism.  The sad part is, there has been little to no oversight. With a country as poor as Haiti, there is little that can be done to remedy the damage that has been caused. Most recently the Dominican Foreign minister stressed importance, “for each state to exercise its sovereign right to determine whose admitted to its territory…” [12] reinforcing their stance on this issue.

What needs to be done?

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The Inter-American Court of Human Rights has decried the Dominican’s practice.[13] The Dominican Republic has also faced pressure from the United States Department of State and such prominent NGOs as Amnesty International and Human Rights Watch. Amnesty has characterized the mass deportations as, “catastrophic” as there is no real capacity for Haiti to provide protection to the vulnerable masses. [14] This harm, left without remedy, will allow impunity for government leaders and leave a generation in limbo. One route for displaced Haitians to take is to launch a complaint with the Human Rights Council, an organ of the United Nations. This organ comprised on 47 member states is responsible for the strengthening, promotion and protection of human rights and allows for individual complaints. [15] Additionally, both the UN High Commission for Human Rights and the UN High Commission for Refugees have been vocal about the Dominican court ruling, but with little effect. [16] Without the intervention of the international community, there may be no foreseeable solution to the centuries of strife between the two nations.

Carolyn Mills is a 3L at the University of Baltimore School of Law. Carolyn is a graduate of Bowie State University with a degree in Political Science. Carolyn was previously  2L representative for the International Law Society. She is currently the President of the Immigration Law Society. Her interests and focus areas are on Central America and West Africa. Last semester, Carolyn was a law clerk for the Department of Homeland Security’s Human Rights Law Section.This past summer she studied abroad in Ghana at the Ghana Institute of Management and Public Affairs (GIMPA) in conjunction with Fordham’s Law School. Additionally Carolyn is a Rule 19 Student Attorney for the Immigrant Rights Clinic. Her interest in international law is international human rights law and its application abroad.  

[1] http://timesofindia.indiatimes.com/world/rest-of-world/130000-Haitians-face-deportation-from-Dominican-Republic/articleshow/52844684.cms

[2] Id.

[3] Id.

[4] http://www.truth-out.org/news/item/35519-the-dominican-republic-is-deporting-its-haitian-residents

[5] Id.

[6] Id.

[7] http://pulitzercenter.org/reporting/deported-their-own-country

[8] http://www.un.org/en/universal-declaration-human-rights/index.html

[9] http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper

[10] http://pulitzercenter.org/reporting/deported-their-own-country

[11] Id.

[12] http://www.dominicantoday.com/dr/local/2016/9/20/60646/Dominican-Republic-stresses-its-right-on-immigration

[13] http://www.statelessness.eu/blog/inter-american-court-condemns-unprecedented-situation-statelessness-dominican-republic

[14] https://www.amnesty.org/en/latest/news/2016/06/haiti-dominican-republic-reckless-deportations-leaving-thousands-in-limbo/

[15] http://www.ohchr.org /EN/HRBodies/HRC/Pages/AboutCouncil.aspx http://www.democracynow.org/2015/6/17/the_dominican_republics_ethnic_purging_edwidge

[16] http://www.un.org/apps/news/story.asp?NewsID=49285#.V-64FogrLcs; http://www.un.org/apps/news/story.asp?NewsID=51198#.V-61aYgrLcs; http://www.unhcr.org/558417759.html


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No Country for Palestinians: The Deportation Paradox

Alison Aminzadeh

Hisham Shaban Galia traveled ten thousand miles to reach the United States, where he sought asylum.[1] Shaban was escaping the violence that plagued his home in the Gaza Strip, facing violence from both Hamas and Israel.[2] His asylum claim was denied because he failed to meet his evidentiary burden of producing documents to support his claim; he had represented himself pro se.[3] For the past sixteen months, Shaban has been held at an immigration detention facility in Arizona.[4] While Immigration and Customs Enforcement (ICE) has determined that Shaban cannot stay in the country, the fact that his home – Palestine – is no longer considered a state poses a problem: how can the U.S. deport someone to a state that, under the eyes of U.S. law, does not exist?[5]  Shaban has since obtained counsel from the non-profit, the Council on American-Islamic relations.[6] His counsel, Liban Yousef, filed a habeas corpus petition for supervised release; if granted, this would allow Shaban to have the opportunity to work.[7] While the petition is still being reviewed, ICE released a “Decision to Continue Detention.”[8] Shaban fears that he will spend his life in the limbo of the detention center, having already spent over five hundred days there.[9] While his case appears unusual, the war-torn Gaza Strip is likely to produce more asylum seekers with similar backgrounds who will be difficult to deport under U.S. law.

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Palestine and Israel territory over the past 70 years

The Universal Declaration of Human Rights states in Article 15 that everyone has the right to a nationality.[10] The history of Palestine is an interesting one: formerly seen as a “home for stateless Jews” in 1947, Palestine now finds itself in the reverse position: Israel has attained statehood, and Palestine has lost its status.[11]

There are four requirements for statehood.[12] First, there must be a population; this means that the alleged state must have people there.[13] Second, a state must have territory, meaning it must be based on some land.[14] Third, the state must have some government; in other words, there has to be some entity making the laws.[15] Finally, a state must have the capacity to enter into international relations.[16] This last requirement acts as a less-objective test and a safeguard for when the international community does not want to recognize a state. By not engaging with that would-be state, the international community can reinforce the idea that the entity is not a state.

There are about fifteen million stateless people worldwide, and the number is growing.[17] Based on the estimates provided by the United Nations High Commissioner for Refugees, Palestinians make up one-third of the stateless people worldwide.[18] Vicent Chetail writes that the Refugee laws for Palestinians are very strict.[19] While Shaban entered the U.S. for the legal purpose of requesting asylum, most Palestinian refugees are only able to enter other countries through illegal means.[20] In the United States, there are about 1,087 asylum seekers reported; however, given their lack of rights and access to resources, the number of asylum seekers in the U.S. is likely significantly greater.[21]

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Shaban is not the first – nor will he be the last – Palestinian that the U.S. holds for deportation. When ICE was questioned on how Palestinians have been deported in the past, it asserted that it has coordinated with Israel, Egypt, and Jordan.[22] However, Shaban’s deportation officer gave him the option of being deported to Pakistan, Afghanistan, Malaysia, or Iraq.[23] Shaban has never been to any of these countries, and considered that this might be a threat; even so, he said he would go anywhere as long as he was no longer in detention.[24]

In addition to the practical conundrum that follows the attempt to deport a stateless person, there are also considerable legal concerns surrounding the international rights of people like Shaban. Article 31 of the UN Refugee Convention (1951) clearly states that no signatory shall impose penalties on refugees because of their illegal status, given the dire situations these refugees are fleeing.[25] The U.S., however, did not sign the Convention, but did sign the 1967 Protocol.[26] The Protocol appeared to retain the substantive portions of the 1951 Convention, and only removed the temporal and geographic restrictions, which focused mainly on events occurring in Europe.[27] Still, Chetail explained that the international community’s application of this Convention is problematic, as deportation should be used as a last resort and not a deterrent.[28] Shaban’s lawyer also alleges that the detention is unconstitutional, as it violates his client’s right to due process.[29] While statelessness is not a crime – in contrast, it is a mark of vulnerability – Shaban has remained in detention after being deemed inadmissible to the United States.[30]

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Campaign to support the release of Hisham and Mounis Hammouda, also in detention

U.S. domestic law is not silent on the issue, either. The facts of Shaban’s case, as well as the cases of those like him, run directly contrary to the spirit of Zadvydas v. Davis.[31] The U.S. Supreme Court heard the facts pertaining to Kestutis Zadvydas’s detention. Zadvydas was born to Lithuanian parents in a German camp for displaced persons.[32] Neither Germany nor Lithuania would accept him upon deportation.[33] He was ordered to be deported due to his criminal record.[34] The removal period for aliens held in custody was ninety days.[35] After the ninety days passed, Zadvydas filed a writ of habeas corpus.[36] Justice Breyer, writing for the majority, expressed concerns over the constitutionality of a statute that would allow indefinite detention, writing that it is inconsistent with the Due Process Clause.[37] If one is to rely on stare decisis, it is evident that U.S. law does not permit holding Palestinians like Shaban indefinitely. Furthermore, during oral arguments, Justice Scalia had asserted that the burden of finding a country to be deported to lies with the petitioner.[38] Even if this is the standard for petitioners to meet, Shaban has already met it by wishing to be deported to his state of Palestine.[39] The conundrum lies in the refusal of the U.S. to recognize Palestine as a state, and its refusal to employ any alternative that would release Palestinian asylum seekers from indefinite detention.

To send a letter to Phoenix ICE Field Director Thomas Giles; ICE Director Sarah Saldaña, ICE Public Advocate Andrew Lorenzen-Strait, visit this website.

Alison Aminzadeh is a third year law student at the University of Baltimore. She is currently a Rule 16 attorney working on the Human Trafficking Project as a part of the Civil Advocacy Clinic. She is also a Senior Staff Editor for the Journal of International Law, and the former President of the Students Supporting the Women’s Law Center. 

[1] John Washington, The US wants to deport this Palestinian – but first it would have to recognize Palestine, The Nation (Mar. 28, 2016), available at http://www.thenation.com/article/can-you-be-deported-if-you-are-stateless/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id., citing Universal Declaration of Human Rights , art. 15, Dec. 10, 1948.

[11] Washington, supra note 1.

[12] Motevideo Convention on the Rights and Duties of States, art. I (Dec. 26, 1933).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Washington, supra note 1.

[18] Id.

[19] Chetail is a professor of International Law at the Graduate Institute of International and Development Studies in Geneva. Id.

[20] Id.

[21]  Id., citing United Nations High Commissioner, Citizens of Nowhere: Solutions for the Stateless in the U.S., Refugees and Open Society Justice Initiative (Dec. 2012), available at http://www.rcusa.org/uploads/pdfs/UNHCR_OSJI_STATELESSNESS_REPORT.pdf.

[22] Washington, supra note 1.

[23] Id.

[24] Id.

[25] Id.

[26] Convention Relating to the Status of Refugees, 606 U.N.T.S. 267 (1951, 1967); States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, UN High Commissioner on for Refugees (last accessed Apr. 10, 2016), available at http://www.unhcr.org/3b73b0d63.html.

[27] Haya Madanat, 1951 Refugee Convention and the 1967 Protocol, Hopes for Women in Education (Nov. 15, 2012), available at https://blog.hopesforwomen.org/2012/11/15/1951-refugee-convention-and-the-1967-protocol-by-haya-madanat/; Convention Relating to the Status of Refugees, supra note 26.

[28] Washington, supra note 1.

[29] Id.

[30] Id.

[31] Id., citing Zadvydas v. Davis, 533 U.S. 678 (2001).

[32] Zadvydas v. Davis, 553 U.S. at 682.

[33] Zadvydas v. Davis, 553 U.S. at 682.

[34] Zadvydas v. Davis, 553 U.S. at 682.

[35] Zadvydas v. Davis, 553 U.S. at 682.

[36] Zadvydas v. Davis, 553 U.S. at 682; 28 USCS § 2241.

[37] Zadvydas v. Davis, 553 U.S. at 690; Washington, supra note 1.

[38] Washington, supra note 1.

[39] Id.


4 Comments

Restricting Schengen – Keeping out Refugees

Raiven Taylor 

Recently, European countries have come up with plans to keep migrants out. In June of 2015, the EU had an emergency meeting and came up with a “10-point plan” to “capture and destroy” boats used to smuggle in migrants.[i] Not long after this plan hatched, Hungary and other European countries erected wire fences to keep migrants out. [ii] Germany, Denmark, Austria and a few other countries suspended their willingness to adhere to the Schengen rules and reintroduce border controls.[iii] The Schengen treaty allows for open travel in the 26-nation bloc known as the Schengen area.[iv] This area, created in 1995 and originally consisting of 26 EU nations, abolished passport controls at common borders.[v] The recent suspension of this was thought to shock the rest of EU when it came to border controls to deal with the migration crisis. Because Germany borders nine other countries, without its participation, Schengen fails.[vi] This led other countries to begin closing their borders, criminalizing most new arrivals as illegal immigrants.[vii] With all of the changes, it has been difficult for migrants to find a country that will allow them to enter. This also makes it difficult for those countries that CAN take these immigrants into their territory because resources are tight. As of September 2015, 63,000 asylum seekers from Hungary and Austria entered Bavaria, which is more than the total of asylum seekers for the enter year of 2014.[viii]

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The EU proposed a deal with Turkey, promising $3.3 billion for it to close down its borders.[ix] Denmark has also passed a law allowing it to seize valuables from asylum seekers in order to pay for their upkeep.[x] All of this is leads to bigger problems because even though countries are locking down their borders, migrants are finding other, often very dangerous ways, to get in anyway. On February 12, 2016 the UN High Commission for Refugees (UNHCR) expressed its concern for the increasing restrictive measures on the part of EU states, stressing that something must be done to protect the fundamental human rights of the people trying to reach Europe.

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Spokesperson for the Office of the UN High Commissioner for Refugees (UNCHR) stated that more than 80,000 migrants arrived in Europe by boat in the first 6 weeks of 2016, with 400 dying in their attempt. Statistics show that 58 percent of migrants coming to Europe are women and children. One in 3 people arriving in Greece are children, compared to the 1 in 10 in September 2015.[xi] It has also been reported that two children drown every day, on average, since September 2015 as their families attempt to cross the Mediterranean Sea, totaling more than 340 children.[xii] UNCHR and the UN Children’s Fund (UNICEF) urge countries to cooperate and make dangerous journeys like this safer for children.[xiii]

A UN Special Rapporteur on Human Rights of Migrants, François Crépeau, stated that although “Europe has always been a strong advocate of human rights in Europe and elsewhere… its struggle to maintain control of its borders however…is being tested…[and by]stripping away the rights of asylum-seekers and migrants, Europe is creating a scary new ‘normal.’”[xiv] Over-reliance and securitization of borders will not work to keep migrants out because they will find another way in order to survive, allowing smugglers to continue to adapt, prosper, and exploit migrants.[xv] In order to combat smuggling, states must provide regular, safe and cheap mobility solutions, including both identity and security checks.[xvi]

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The European public, predominantly, has the view that Europe needs stricter controls, bigger fences, and more military control.[xvii] Although the public might favor these stricter policies, politicians view them as an immoral and an unworkable approach.[xviii] The question is how will European countries pursue this issue and in what ways will immigration be affected long term? Will countries continue keeping its borders open? Will countries continue with daily limits on migrants? I believe countries should find a less dangerous way for migrants to travel while also coming up with a way to stem the tide of migration. It is somewhat understandable for countries to not want to be overpopulated and have an extra burden on state-run agencies. However, risking the lives of migrants is not the way to overcome this problem. Many organizations are attempting to convince the politicians to work this issue out as peacefully as possible and in a way that lessens the dangers for migrants. Something needs to be done – sooner, rather than later!

[i] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[ii] Id.

[iii] Id.

[iv] http://www.theguardian.com/world/2015/sep/13/germany-border-crackdown-deals-blow-to-schengen-system

[v] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[vi] http://www.theguardian.com/world/2015/sep/13/germany-border-crackdown-deals-blow-to-schengen-system

[vii] Id.

[viii] Id.

[ix] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[x] Id.

[xi] http://www.un.org/apps/news/story.asp?NewsID=53217#.VsxxWMfiQtg

[xii] http://www.un.org/apps/news/story.asp?NewsID=53272#.VsxxYsfiQtg

[xiii] Id.

[xiv] http://www.un.org/apps/news/story.asp?NewsID=53217#.VsxxWMfiQtg

[xv] id.

[xvi] Id.

[xvii] http://www.theguardian.com/commentisfree/2016/jan/31/europe-bind-act-morally-on-immigrants-heed-its-citizens

[xviii] Id.