The US welcomes refugees from Afghanistan but turns away Haitians. Why? Debating how best to share responsibilities for refugees, UCLA professor Tendayi Achiume argues that empires owe special duties to former colonies; Temple Professor Jaya Ramji-Nogales explains the special rules following the US occupation of Iraq and Afghanistan; while Berkeley professor Seth Davis contrasts how different US states, notably Texas and California, respond.
We discussed Title 42 – a controversial public health tool used to close the Southern border, and discussed how climate change calls for a new response to mass migration, as a new White House report emphasizes. We also compared regional solutions, including solutions that can be fairly called responsibility sharing, and others that resemble responsibility dumping.
For more details, stay tuned for a special spring 2022 symposium issue of the California Law Review featuring many perspectives on refugee responsibility sharing.
About:
Borderlines from Berkeley Law is a podcast about global problems in a world fragmented by national borders. Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law. In each episode of Borderlines, Professor Linos invites three experts to discuss cutting edge issues in international law.
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Episode Transcript
Katerina Linos:
In the last two weeks of August 2021, the US government coordinated a massive evacuation of over 100,000 Afghans, mostly refugees. In a rare moment of progressive bipartisan consensus, tens of thousands were brought to the US and many will benefit from the opportunity to get short-term economic support as well as a path to US citizenship. And yet just a month later, in September 2021, thousands of Haitians seeking asylum on the US border with Mexico were turned away before they could even apply for protection. The Biden Administration said it was not the US that was responsible for protecting them, but rather Mexico or their failing home state of Haiti. This time too we had bipartisanship, but of the very conservative type in which a Democratic Administration continue to implement harsh and contested measures introduced by the Trump Administration.
Katerina Linos:
I’m Katerina Linos, Tragen Professor of International and Comparative Law at UC Berkeley, Co-Director of the Miller Center for Global Challenges and the Law, and host of Borderlines. With me today are three experts to discuss who we welcome, who we turn away, and what our legal and moral responsibilities are to protect refugees and other displaced persons. With me here are Tendayi Achiume, Alicia Miñana Chair in Law at UCLA and US Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination and Xenophobia. Seth Davis, Professor of Law at the University of California, Berkeley School of Law, and Jaya Ramji-Nogales, Associate Dean for Research and Herman Stern Research Professor at Temple University, Beasley School of Law.
Katerina Linos:
Jaya, let me start by asking you about the sudden US withdrawal from Afghanistan. It created an urgent need for humanitarian protection and the bipartisan consensus that the US owes special duties to refugees from Afghanistan and others fleeing their home state. You’ve written previously about the duties the US owes to Iraqis fleeing the home state following the US occupation of Iraq. Could you get us started? Could you introduce us to the refugee law regime, who qualifies as refugee, what other forms of protections are available, and what programs the US has put in place to protect Iraqis and then Afghans?
Jaya Ramji-Nogales:
Absolutely. So thank you so much, Katerina, for hosting us, and I’m really looking forward to this conversation. Thank you for teeing it up with that, I think very important tension between Afghans and Haitians and refugees and asylum seekers and how we’re treating them currently in the US. So the definition of a refugee comes originally from the 1951 UN Convention Relating to the Status of Refugees, which tells us that we cannot return someone who faces a well-founded fear on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The US has signed on to the convention through the 1967 Protocol.
Jaya Ramji-Nogales:
Those protections are also extended under the UN Convention Against Torture, which provides a similar protection that no party shall refoul, send back someone to a state where there are substantial grounds of believing that she would be in danger of being subjected to torture. And then we have other forms of protection in international human rights instruments and regional human rights law. But really, when it comes to resettlement and responsibility sharing, there are a lot of gaps, and so let me start with the Afghan situation that you’ve teed up and comparing it to Iraq, thinking about situations of occupation.
Jaya Ramji-Nogales:
So the Refugee Convention, first of all, let me start by saying, doesn’t discuss resettlement or resettlement obligations. Let me explain also for the audience what I mean when I talk about resettlement. So resettlement is the process by which an individual who meets the refugee definition is brought to a third country where they will find protection. Historically, the United States has hosted the largest number of resettled refugees. We’ve been the number one country by far for many, many years. That of course, changed under the last administration but hopefully under this administration we’ll see it ramp up again, but refugees can also be resettled to Canada, Europe, Australia, other countries.
Jaya Ramji-Nogales:
Asylum seekers are individuals who show up at a border and seek protection, and similar to refugees, they can’t be returned to the country from whence they came. They should be given access to the asylum process which happens on US soil, so their determination process happens in the US. And then if they meet the definition of a refugee or they meet this definition under the Convention Against Torture, they should be protected here. So the Refugee Convention really doesn’t say much about how countries should share the responsibility of refugee protection. In Afghanistan, of course we have, and I will confess, I’m not an expert in international humanitarian law, but right there are arguments that this is at least an occupation-like situation, at least until the point where the US hands over responsibility to the Afghan government. And certainly the US occupation has placed people in danger. The US military presence there has placed Afghans in danger.
Jaya Ramji-Nogales:
International humanitarian law doesn’t really conceive of resettlement protection, so–movement to a third country, right? It talks about the occupiers’ responsibility within the occupied territory itself, so it’s not thinking about external forms of protection. And again, international human rights law provides some protections but it doesn’t provide any information about resettlement and the obligations around resettlement. So these gaps in international law, I also just want to make the point that they benefit powerful states, because if we don’t have international law obligations around resettlement, it means that states can opt really to do what they want with little constraints.
Jaya Ramji-Nogales:
The other point I want to make is about responsibility for protection against harm. And so one thing we see that’s in this situation with Afghans, and perhaps this is why we see the outcomes that you mentioned in the beginning, is we see pretty close and clear causal connection for responsibility for the harm that’s happened to these folks in Afghanistan or the risks that they face. So who we’re talking about is people who’ve worked with the US military in Afghanistan. We’re talking about translators, we’re talking about other people who have supported the US military, who are now at serious risk. And those are many of the people who are coming over. So we can think about the occupation causing harm, past military intervention causing harm, where we have a close causal connection. And I know that Tendayi and Seth will talk about other situations where that link is less direct–at climate change, creation and return of gang members, even appetite for drugs in the US market–being a causal chain to migration, but not being recognized as clearly.
Jaya Ramji-Nogales:
So what we do see, though, in the Afghanistan situation and in Iraq is the creation of the Special Immigrant Visas, and these were first created in 2006 for Afghans and for Iraqis, and the first pathway was just for interpreters and translators, and it was only 50 visas a year at that point so it was really not protecting a lot of people. And then that was expanded in 2009 to include all Afghans who supported the US government or allied forces for at least two years, and there is a cap of 26,500 visas there. So that’s a larger number of visas, but still when the UNHCR is predicting we may see half a million people fleeing Afghanistan this year in the worst case scenario, you can see that that’s really just a drop in the bucket.
Jaya Ramji-Nogales:
We did see, as you said Katerina, bipartisan action. There’s a vote in July to increase the number of visas by 8,000, and we’ve seen nearly 77,000 Afghans using these visas to date. But we still have about 20,000 plus 50,000 . . . there are family members stuck in a backlog, both due to the extensive security clearances that have to happen, of course the shutdown of interviews during the pandemic, which has restarted again, but this is a very long process. But we do see this bipartisanship, which is very interesting, and part of it is–and I think this actually could relate to broader questions about public attitude towards immigrants more generally–we see these close relationships with US military, because the military say, “This is the person who helped me, who saved me over and over again, and we have an obligation to save them now.” And you see the military really getting involved. You saw this with Iraq, you see this with Afghanistan, and so that’s where we start to see this bipartisan consensus and we see something that looks really reminiscent of the Indochinese resettlement in the late 1970s. And we see this sense of obligation and the US acting domestically through domestic policy to bring people through. So I think I’ll stop there, because I’m much more excited to hear what Tendayi and Seth have to say, but hopefully, that’s at least a starting point for the conversation.
Katerina Linos:
Thank you, Jaya, that’s a great starting point. Let me turn to you Tendayi because you’ve written recently about asylum seekers from Central America and policies that are very different from those Jaya just described with both the Trump and now the Biden Administration not recognizing obligations and putting in place policies that might be inconsistent with our international law obligations. Could you discuss why turning away asylum seekers from states like Nicaragua or Haiti are inconsistent with our moral obligations and our legal obligations? Perhaps both from the perspective of distributive justice, and also from the perspectives of theories you’ve developed including imperial domination and imperial intervention. How do we think about this as a policy problem, as a moral problem, and as a legal one?
Tendayi Achiume:
Thank you so much for inviting me to this conversation, Katerina. And Seth and Jaya, I’m are really excited to be in conversation with you as well. I should start off by saying that I’m joining you in my nonofficial capacities, and none of the things that I’m saying should be attributed to my mandate, obviously, but of course, I’m happy to reflect on some of the ways in which the issues that we’re dealing with intersect with issues to do with racism, xenophobia and related intolerance. So your question, I think, is a really interesting one, and I want to start off as Jaya has really nicely laid out a number of things that are helpful for me. She’s laid out some of the mechanisms that are in place for Afghans, mechanisms that I should say, I think are insufficient. I think it’s wonderful that people who’ve assisted the US during the occupation are being given preferential treatment, but arguments can be made for other Afghans that they should also be receiving asylum and other such protections, and I’ll talk a little bit about why I think that is the case.
Tendayi Achiume:
When you look at the case of Haitians and Central American migrants right now at the border, they are receiving treatment that is very different from the treatment that Afghans are receiving. And so recently, people may be aware of media reports and even public analysis, including a really powerful piece by Jaya and Just Security, analyzing the use of the Biden Administration of this Title 42, which is being used to summarily deport the Haitians and Central Americans from the southern border of the United States. So you’re seeing these mass expulsions of migrants and refugees that violate the US’s international human rights obligations. So there’s this difference in treatment. When we think about some of the issues that Jaya raised–the issues of refugee responsibility sharing, who bears the burden, or who should be held to account when people are displaced–because international law offers no real powerful solution, we have a scholarship within international refugee law that makes different kinds of arguments about how we might think about solving that problem. So many have argued that countries that have greater capacity, for example, should be taking in more refugees. When we think about Afghan refugees, when we think about Haitians, or Central Americans as arguments made–that because of the US capacity we should be doing more on that front.
Tendayi Achiume:
In my academic work, I’ve been arguing for what I call an empire-centric approach to thinking about both asylum and refugee responsibility sharing. And here the sensibilities are that when you think about the way that international law is created and when you think about the kinds of justifications that are used to advocate for shifts and policies, they typically do not destabilize the legitimacy of the borders in place. So we see humanitarian arguments being made, we see consent-based arguments being made for why people should be admitted, and in many of those debates vanishing into the background is the very deep interconnection that binds many of the countries that people are fleeing from, and even the nations that they are fleeing to that are refusing to take them in, so think about Central Americans and think about Haitians.
Tendayi Achiume:
When we think about both of those two categories, they’re typically characterized as political strangers. These are people outside of our political community who are seeking refuge, and we have various standards for determining who we’re going to grant exceptions for. The idea of centering empire is to say, if you look at the nature of US intervention–US imperial intervention and US imperial domination into Central America, into Haiti–it should shift the political theory and even the kind of moral and ethical sensibilities that we bring to bear on who has obligations. So you think about the history of military intervention, the history of occupation in Central America, the ways in which the United States has essentially transformed the economic systems of Central America and also been complicit in doing similar things in Haiti. I argue in my work that that binds Haitians and Central Americans to the United States in ways that mean that the US has no right to exclude them, and we should have laws that recognized the role of imperial domination in that context.
Tendayi Achiume:
One of the reasons why I think this could be helpful is because it might shift the ways in which we advocate or think about the obligations that we have towards migrants and refugees. So last year, and I would say even now, one of the most powerful mechanisms, I think, for seeing shifts and policy have proved to be social movements. We see this with the transnational racial justice uprisings, I think you’re seeing this in the climate change context, where you’re seeing transnational mobilizations against structures of subordination that I think might be relevant in the border context. I was listening to a radio episode that was talking about Vietnamese refugees who are right now advocating and taking steps to assist Afghan refugees who are coming because of their own experiences as refugees and from conflicts that the US was involved in as well. You see a kind of solidarity there that I think is based on recognizing deeper interconnection between places like the US and places like whether it’s Vietnam in the past, or Afghanistan now, or Central America, and Haiti. So rather than then branding these groups as economic migrants or even as refugees, I think we should be shifting the ways in which we enforce separations, including through international law, to really challenge ourselves to rethink the frames.
Katerina Linos:
Thank you very much, Tendayi. On this discussion on what the border means, Seth has a lot to contribute. Because Seth, in your work, you think of the southern border, but think not about international responsibility sharing as most scholars and UN conversations have focused, but on responsibility sharing within border, sharing refugee responsibilities from different US states. Could you discuss this concept? How are refugees resettled across US communities? How did Germany allocate over one million Syrians? What principles matter most within states as we think of those borders?
Seth Davis:
Thank you, Katerina. I really appreciate the opportunity to be part of this conversation today. There’s a lot of really interesting threads that have already been laid down, and let me just see if I can take up a few in response to your question. So my work has looked at responsibility sharing within the borders of states, so rather than responsibility sharing across the borders of states on the international plane. Why is it important to take a look at responsibility sharing within states? I think there’s several reasons, but I think one follows from one of the lessons that I’ve learned from Jaya’s work and Tendayi’s work. Because both of them have shown in various ways how international law-related human mobility, related to migration, related to refugees and so on. It doesn’t just respond to crises, it doesn’t just respond to lack of political will. It can construct crises, okay?
Seth Davis:
So law can contribute to xenophobic backlash to refugees and asylum seekers, for instance. International law can construct the crisis itself as Jaya has pointed out in her work. And I think that same sort of lesson is relevant when we think about law within states with respect to the allocation of responsibility for refugees and asylum seekers. So you asked about the US and Germany. These are two different systems for the allocation of responsibility, two different systems for determining where and how refugees and asylum seekers will be settled within the borders of these states. Just briefly–within the United States, as with a lot of administrative programs within the US, it’s a cooperative arrangement that involves the federal government and federal funding and then private organizations and states and localities, and crucial to determining where refugees will be resettled in the US. So these are individuals coming from other countries to be resettled in the United States.
Seth Davis:
Central there is the work of the VOLAGs. These are nine voluntary agencies who work to determine where refugees will be resettled within the US in consultation with states and localities based upon information they receive from the State Department’s resettlement support centers overseas. Germany, it’s a very different system. The German system, the principle that it’s based upon dates back to the Basic Law of 1949, and its creation of the Königstein key. This was an idea originally developed in the context of science policy, that the 16 federal states in Germany will share responsibility for paying the costs of certain science policies and expanded since then, such that we now have quotas, weighted shares among the 16 states in Germany for determining where refugees will settle across Germany, and those weighted shares are based upon tax revenues and population counts.
Seth Davis:
And just to close the thread here, the German example is really interesting, and I think highlights the importance of thinking about responsibly sharing within borders, because as Christina Boswell has explored, that system that I just described–the quota system–it has real costs for refugees, and it also at least in particular cases seems to have contributed to xenophobic backlash to the presence of refugees. So if we’re concerned about refugee flourishing, we’re concerned about the ways in which law can construct crises and contribute to a xenophobic backlash against refugees presence, then I think we need to think about responsibility sharing within borders not just across them, and that’s what I’ve been exploring recently.
Katerina Linos:
Thank you, Seth. I’m really intrigued by the ideas of cooperative agreements and quotas within states. I think their second-best solutions–of distributive justice that improved dramatically over the type of bargaining, and give and take, and irresponsibility we see at the international level–and in some of my work with Elena Chachko–we argue that there’s a silver lining to the European refugee crisis involving Syria, that somehow as an emergency measure, the Europeans passed formulas and quotas about how they would allocate responsibility for asylum seeker claims, and that this systematization has major advantages over an alternative in which neighboring states to the crisis, which are often just as poor and a little more stable than the state from which refugees are fleeing, bear the brunt of the responsibility. Jaya, can I turn to you? Because I think there is a lot of lessons that we can draw from regional groupings. I know you’ve written a little bit about Mercosur and other efforts in the Americas.
Jaya Ramji-Nogales:
Yeah, yeah, absolutely. So I think Mercosur is just such an interesting example in relating back to what Tendayi said. If we can shift the frame and think about these questions really differently, I think Mercosur is an example of how that can be done. What we see in the Mercosur region is really a different frame. It’s a different vocabulary, it’s a different rhetoric that talks about the right to migrate, that talks about non-criminalization, that talks about the rights of migrants. And this did, of course, arise amidst economic expansion in the early 2000s. But we also see a situation where detention and expulsion are not major issues–a brief introduction to the Mercosur Residence Agreement, which really facilitates mobility throughout the region. So it’s not limited just to Mercosur members, it’s been ratified by all the countries in South America, except Venezuela, Suriname and Guyana, and it’s been in place since 2009.
Jaya Ramji-Nogales:
So what it does is it just enables mobility and access to rights to live and work plus other rights within the region for two years, and then if you can show a means of support, you can become a permanent resident. So this is really a completely different way of thinking about borders, right? And within the region, often what we see is rather than criminalization as a tool to manage undocumented migration, regularization is the response. So regularization measures beyond the Mercosur Agreement is the approach. So I don’t want to pretend that Mercosur is perfect, there are still securitization trends, there’s still contestation, but the pro-migrant voice is much more powerful, and it has enabled a very different way of thinking about how to approach responsibility sharing. And of course, we’re talking here really about responsibility for asylum seekers but we’re also talking about people who don’t actually even need to become asylum seekers, because they have the right to move. So they can move freely when they want to, when it makes sense for them.
Jaya Ramji-Nogales:
So Venezuela, of course, has really, really tested the limits of this. Of course, Venezuela wasn’t party to the agreement to start with, but interestingly, the norms of the Mercosur Agreement still apply, so even though Venezuela wasn’t part of the agreement, we saw in the early days, Argentina, Brazil, Ecuador, Uruguay extending free movement to Venezuelans. And then we saw regularization processes in Bolivia, Chile, Ecuador, Peru. So we see at the beginning of the movement of Venezuelans in 2015, we see people being welcomed and let in with residence rights, with the right to work. And then we also see separately recognition under the Cartagena Declaration, which provides a broader refugee definition. We see some special temporary residence permits, but then we see, coming closer to more recent years as we see the economic declines and the rise of right-wing politics, visa introductions; so Chile, Ecuador, Peru, in response to the Venezuelans, introduced visa requirements against Venezuelans. And of course, the pandemic has contributed to border militarization limiting access to asylum. But it is a different story, and that’s really what I want to raise, is there are very different ways, very different approaches, and this is a model that all of the regional systems could really learn from I think.
Katerina Linos:
Thank you, Jaya. Let me turn to you, Tendayi, because you said in introducing yourself that you’ll speak in your personal capacity but are happy to take on some of the challenges that stem from your experience working within the UN system as a Special Rapporteur. Can you tell us a little bit more about what progress, if any, has been made recently on these issues? Whether the Global Compact on Refugees or the Global Compact on Migration represents steps forward? Whether there are efforts to raise funds that are sufficient or higher than we might otherwise expect to share responsibility for refugees, and whether you expect any concrete gains through the UN system in the near future?
Tendayi Achiume:
Thanks. In terms of the UN system, and the different initiatives that we’ve had in the last few years to think about issues of responsibility sharing, and Katerina, you mentioned the Global Compact on Refugees and the Global Compact on Migration. And a Global Compact on Migration, for example, was adopted in 2018 and actually, both of these compacts were motivated to a great extent by the so-called Syrian refugee crisis reaching European shores. So prior to 2015, countries in the Syrian region were really doing and continue to do most of the work of providing refuge to Syrian refugees, and in 2015, as Syrian refugees moved out of the region and moved to Europe and other places, many of the powerful countries within the UN mobilized for a rethink of the ways in which we think about responsibility sharing.
Tendayi Achiume:
Now, the Global Compacts and their trajectory, I think were definitely undercut by the rise of nationalist populism around the same time, politically, in many of the regions that are the most influential within the UN system. I have to say that I am not especially hopeful of either regime, the Global Compact on Migration or the Global Compact on Refugees, for a number of reasons. And before I go into my pessimism, I do want to highlight a few things that I do think have been positive that I’ve witnessed at least through my work with the UN. I think, especially from the perspective of migrants, the conversation around the human rights of migrants and the international governance of mobility for migrants, there has been stagnation within the UN system. So you have the Convention for the human rights of migrant workers, which remains unratified by many of the countries in the Global North on migrant-receiving countries, so the capacity of instrument to transform migration governance has been undercut. And the Global Compact on Migration [GCM], people describe it as the first global pact on migration governance.
Tendayi Achiume:
If you open that instrument up and you look at it, it begins with the usual preambles, there’s a recognition of human rights, and I highlight human rights because at the international level, the human rights framework at least for migrants who are not refugees, is where we go to see the strongest protections for them. And so you see an articulation of the importance of international human rights and all of this sort of thing, but the very first objective is connected to data collection. So in terms of assessing the priorities that are embedded in that regime, I think it is telling that the starting of place is data collection, which you actually see, I think, a fair amount of that happening under the GCM. I highlight that because I worry that even as the GCM process, and even as the Global Compact on Refugees processes are proceeding, they are proceeding side by side with a doubling down on border closures by the most powerful countries in the system, and by the countries that are doing the least both to responsibility share, and then also both to be accountable for the economic systems that result in people moving in the different directions that they go.
Tendayi Achiume:
So to me, it’s difficult to be hopeful about what can be achieved through the Global Compact on Migration, and even the Global Compact on Refugees in any meaningful way if the underground signals we’re seeing from the countries that are the most recalcitrant actually sends a very different story. And when I think about refugee responsibility sharing, I remember when I was studying this in law school, there was a way of framing the problem as one that all countries are equally recalcitrant or are equally shirking their responsibilities or are equally refusing to do their part to protect refugees. What you find is that’s not the case–I think, Jaya, you mentioned this in your remarks and Katerina, you did as well–that what we have now is a system that nations that are proximate to conflict are the ones that end up hosting refugees. And those nations are by no means the nations that are the most responsible for the displacement. Oftentimes, you have nations as far away as the US with respect to Afghanistan, for example, that are deeply implicated in the displacement but get to shirk their responsibility. So coming back to the GCM, I think it’ll be interesting to see the ways in which those regimes can interrupt the bordering policies of the most powerful countries which right now I think, are nowhere near what we would want them to be.
Katerina Linos:
Thank you, Tendayi. The theme of deep pessimism is one that comes up in some of your writings, Jaya, as well. You write about climate change justice and how slow-onset, multi-causal events are a particularly poor fit for the mobility regime that focuses on sudden crises of political origin. Since you wrote that, do you have any reason to think that climate change conversations are finally taking human mobility possibilities more seriously? Or are you not optimistic at all?
Jaya Ramji-Nogales:
So I think here unfortunately, I’m going to join Tendayi in the pessimists boat. I have to say I was really more optimistic about the Biden Administration and what might be done under Biden. You know Biden as a Vice President visited Central America many, many times. He was very familiar with Central America, had good things to say, so maybe that is still to come. Had good things to say about helping with climate adaptation and mitigation and putting in place some good policies. So we’ll see if we get there, but right now this Title 42 Policy, that Tendayi spoke about before, that’s in place keeping out both the Haitians–who many of whom are moving for political reasons, because of the overthrow of the president, because of the killing of the president–but also there are real climate change reasons to be leaving Haiti because of the hurricanes, and so that’s really kind of a US point of view.
Jaya Ramji-Nogales:
But looking at the international level–and Tendayi, please chime in if you know more on this level from your vantage than I do–I see conversations happening within the UN High Commissioner for Refugees, maybe the High Commissioner for Human Rights, around climate and migration, but I think in the UN climate space I see less talk. There is some talk of migration, but just not as much focus as we would hope for. And one thing that I would really hope for in the climate space is actually a step away from mobility bias and understanding that many people would rather stay where they are that need help. There needs to be a lot more thought put into climate migration because it’s coming. It’s in many ways already here, when we see Central Americans who were maybe fleeing drought, maybe fleeing hurricanes, might have gone to the cities in their countries, but those are–particularly the poor areas of those cities–are controlled by gangs, and so then that pushes them to come to the US.
Jaya Ramji-Nogales:
The other thing that I would love to see more thinking about is safe transit and thinking about the dangerousness of the migrant journeys, if we want to contrast the way the Afghans are getting here to the way the Haitians and the Central Americans are getting here. We’re just going to see more deaths. So thinking about that, and really taking that seriously, and then of course, thinking about responsibilities. So it’s clear that Philip Alston found this in his work as UN Special Rapporteur: the world’s richest nations really bear the bulk of responsibility here. The richest 10% cause 50% of carbon emissions, the poorest 50% cause 10% of carbon emissions. So thinking about how to make that causal link that Tendayi talks about in her scholarship and bringing that around to some form of solidarity, some form of responsibility. So that’s where I would hope that we would be able to get but I’m pretty pessimistic based on what we see currently both in the US and on the global stage.
Katerina Linos:
I’m going to look hard for some optimism, so Seth, I’ll turn to you. I think I see some optimism in your writings. You discuss German Chancellor Angela Merkel’s decision to accept one million Syrians, Turkey’s president Tayyip Erdoğan’s decision to take in 3.6 million Syrians. We could add to this, Colombia President Iván Duque’s decision to regularize two million Venezuelans. These seem important decisions to protect people on a large scale. Could they be models for others? Do we see similar initiatives? Generous initiatives? Initiatives worthy of imitation at the sub-national level? Do we see governors or mayors acting in ways that give us reason for optimism?
Seth Davis:
So I was interested recently to read an op-ed in Newsweek by Erias Lukwago and Marvin Rees, who are the mayors of Kampala, Uganda and Bristol, UK, respectively. They’re some of the founders of the Mayors Migration Council, and the gist of their op-ed was essentially, “Cities want to welcome refugees, national governments need to allow us to do so.” So if I’m being asked to put on the optimist hat in this conversation for a moment, and to look inside the nation state to cities that’s one thing I would cite: the efforts of city leaders, Mayors Migration Council, others, to cooperate, to provide technical assistance, to share knowledge during COVID 19 pandemic, to create funds, to provide technical assistance to particularly cities in low- and middle-income countries with that funding being focused in part upon the particular risks that migrants–refugees in particular–faced from COVID, given that they’ve been uprooted and they’re trying to rebuild lives in new places.
Seth Davis:
So there are certainly some indications among the leaders of some cities, that at least when it comes to leaders of urban areas, there’s some understanding of an important part of the conversation that we haven’t touched on yet which is just the many ways in which refugees benefit and contribute to the communities that they resettle in. There’s a way in which the responsibility sharing frame can often obscure that, and I think looking to the cities helps us. If we’re trying to understand the politics of that op-ed, for instance, I think we have to look to just the empirically measurable and measured fact of refugee contribution, say to economies, to tax revenues and so on. So there’s one note of optimism, but I can’t avoid just adding a note of pessimism as well, or at least an observation of contrasts that I think is really striking.
Seth Davis:
So you asked about Iván Duque and Colombia’s decision to regularize the presence of roughly half, so about one million of the two million Venezuelans that have resettled in Colombia. It is a policy that was celebrated by a number of folks across the world, including the Biden Administration. While at the same time, or not the same time, but within the same year, the Biden Administration is invoking the legally dubious ground of Title 42, which does not anywhere in that provision say that the federal government is authorized to expel individuals. It talks about preventing the introduction of people and goods, not expelling individuals. Invoking that legally dubious ground to, among other things, expel 7,500 Haitians who were there in that camp in Del Rio–now, what are the causes of that? There’s many causes of the politics of that, but I think one of them does get back to this question of how law shapes discussions of responsibility within states.
Seth Davis:
Go look at the New York Times’ coverage of Haitians living there under the bridge in Del Rio. There’s an article of September 20th of this year. It sounds in the language of responsibility. There’s quotations to residents of Del Rio essentially saying we don’t have the resources, this is unfair that we are shouldering this much of the responsibility. Look at the way that the Texas Tribune has reported on even the city of San Antonio, which I know very well because I have family there, having to open a migrant resource center in an old Quiznos downtown where the queue is still above the center, and the reporting there is all about how strained resources, crisis of resources, responsibility not being shared fairly. And so I think there’s an interaction between those domestic regimes of law, and the international regimes in ways that contribute to some of this pessimism. So Katerina, there’s reasons to be optimistic when you look within the nation state, but we have to acknowledge that there are reasons to be pessimistic too when you take that vantage.
Katerina Linos:
Thank you so much, Seth, thank you so much, Tendayi, thank you so much, Jaya. I’m amazed at how much I learned in this conversation. So let me just open the things up and just say, thank you so much, I’m learning so much, and I’m sure others will learn a lot. But what else should we talk about? What do you want to talk about?
Tendayi Achiume:
So two things, one that is I do think this question of siloing of international law regimes is a really big one. So Jaya, you were mentioning in the climate change context how this, I agree with you, have been a serious neglect of the migration-related dimensions of climate change. But if you think about the way we study international migration, or even international refugee law, the silo and I think does a lot of work. You can imagine a world where as you study international trade law, you study the migration consequences of trade, you study the conflict consequences of trade, and you think about international lawmaking that is integrated in that way, so that when there’s advocacy around a trade regime, there is explicit consideration of the outcomes in ways that might allow for a holistic approach. To speak to Seth’s point about the work that international law does or that law does to construct these crises, the siloing is a huge part of it. And I think this is a challenge not just for international refugee scholars or international migration scholars, but for public international law scholars, and then also the people who study the private aspects of it. I really think the challenges we’re discussing on this podcast, part of why we continue to discuss them, is because they’re siloed within these regimes.
Tendayi Achiume:
And then in terms of pessimism and optimism, it’s true that I tend to be fairly pessimistic about the ways that international law frames the challenges that we’re confronting with borders, But Seth’s comment about newspaper coverage, I think is a really interesting one, and I’ve been more heartened at the kind of coverage that we’re seeing. There’s been a number of news pieces, analysis that is trying to do more than say, “There’s many people coming, there is a crisis,” and is trying to dig deeper to say, “What are these people fleeing from? How is the United States as a powerful country historically, and in the present, implicated in generating the displacement?”
Tendayi Achiume:
All of this is to say, I think that to the extent that there is pressure internationally, domestically, to really think about the way that the US has presence abroad or powerful countries’ presence abroad, shape the context that then results in displacement, I think we might be moving towards a different kind of politics, which I think is then the precursor to a different type of law around legal regimes. So to the extent that there’s law students who are listening to this podcast, I think part of the work is the reimagining work and not just the work of how we tinker with temporary protection or how we tinker with other kinds of categories.
Jaya Ramji-Nogales:
Great, and I might jump in and say, I absolutely agree about the silos. We see that in occupation as well, of course. Because what if we learned about war and occupation and learned about how it impacts people’s lives or how it impacts the lives of people in the occupied territories, and what the implications that should be? But there’s no connection drawn between safety, potential need for protection, potential migration in the way that is taught. So again, really trying to integrate migration into the conversation and around climate change as well, I agree.
Jaya Ramji-Nogales:
I was still ruminating around the safe transit question, because I think it is a really big difference between refugees and asylum seekers. We could imagine something different, where Haitians and Central Americans maybe are given the opportunity to come to the US and have their asylum claim processed. You know the Biden Administration has talked about creating ways to do that regionally, which I think is an idea that holds a lot of promise in theory, but has never really played out very well in practice so I do have reservations about that. But you can imagine my co-author Andy Schoenholtz talks about an asylum visa where someone could come in. And then we see–also this relates to the point Seth is making–we see people distributed around the US in different places, rather than all along the southern border. And where we see border communities, many of whom have just been incredible in terms of their generosity on both sides of the border in the US and Mexico, but instead, we see asylum seekers going to states where they can help.
Jaya Ramji-Nogales:
You know, we see a lot of conversation today about the difficulty in hiring workers, that employers are having a very difficult time, but we never see that conversation connected with the tens of thousands of people we’re keeping out at the southern border. Is that a possibility that we can think about? And these are not perfect jobs that we’re talking about, these are low wage jobs and an economy that’s not well structured for low wage workers. So those are questions we want to think about, but it would at least be worth starting to have that conversation. And then finally, maybe I’ll end on an optimistic note, taking a page from Seth’s book and really thinking about, I think, the possibilities of the cities.
Seth Davis:
I wonder if I can just take up the threads, Jaya that you just laid down and try to talk about one way in which they’re conducted. The UNHCR’s hashtag #WithRefugees campaign, which various city leaders signed on to–it’s a statement of solidarity, it’s a statement that also recognizes the responsibility and the important role that local authorities play. But in that connection between the local and the International, particularly in federal states, there’s this real complication of both national governments and then if we’re taking the US is an example of a federal state, the state level governments, right? The law concerning federalism, and states’ rights are all really important here. So in the US, again, we think of federalism in terms of the rights of states, including the rights of states to say “no” as opposed to the responsibilities of states to one another and to human beings. And so I would say there are some really interesting ways both through official channels like the UNHCR, but then also through social movements where the International and the local can get connected in terms of reframing, in terms of solidarity, but then there are also the sort of barriers, including some of those constructed by law, and the law of federalism as well.
Jaya Ramji-Nogales:
I think that’s absolutely right. What can progressive cities do, and solidarity movements? So how can we think about these transnational connections? We see Haitian communities here. . . there was an article in the Times about Haitian communities here in Philadelphia and what they’re doing for Haitians who are coming in and what they can do politically. So it’s both about providing humanitarian assistance, but it’s also really about raising your political voice. It was heartening for me to see the stories about Vietnamese Americans supporting the Afghans because the most–I was so saddened to see how many of them in the last election voted for Trump. It was hard to see people from an immigrant population voting for such a vocally anti-immigrant individual, but maybe there’s a way that we can kind of bring those conversations together and move towards a place of solidarity, and maybe those political voices can be exercised more effectively. And what’s so powerful about the Vietnamese American story is: that was me, and that could be any of us. That could have been any of us and remembering the obligations that we owe each other as human beings, the solidarity obligations that we owe, perhaps especially when we, as in Afghanistan, as in Haiti, as in Central America, as when the US bears a lot of responsibility for the instability, but I think even more broadly, as humans thinking about the obligations we owe one another.
Katerina Linos:
Thank you for listening to this episode of Borderlines. Some themes I will hold on to include the idea that responsibility for refugees still falls primarily on developing states, states right next to the conflict, states that are least able to bear this responsibility. At the same time, there are also reasons for optimism. Bipartisan support for refugees from Afghanistan suggests that Americans accept responsibility when our immediate involvement is evident. And there’s also some space for regional solutions, both the European Union and Mercosur provide important rights of free movement for nationals and important sharing of asylum responsibilities. If you’d like to find out more, check out the Borderlines show notes. There, you’ll find links to a special issue of the California Law Review on this issue, into a new White House report on the impact of climate change on migration. The next episode of Borderlines examines how giant multinational corporations set up subsidiaries and supply chains to avoid different countries’ rules. Do leave us a review as Borderlines is a brand-new podcast.
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