Tag Archive | "Human Rights"

Understanding the Syrian Refugee Crisis and How Refugees Receive Asylum in the United States: Part 3

Photo Credit: AP Photo/David Zalubowski

This third installment focusing on Syrian refugees will address what a refugee goes through when he or she finally makes it to the United States and what we, especially those of us in Colorado, can do to help.

Once a refugee has passed the security clearance screening, they then fly to one of five designated airports in the United States. Border Protection checks their documents and conducts additional security checks. Then, the refugee is assigned to a refugee relocation services program. In Colorado, the Colorado Department of Human Services oversees the refugee relocation programs conducted by the Lutheran Family Services and the African Community Center.

These two programs help refugees find a place to live, work, and study. They also help them learn English, find medical care, and provide lawyers who can help with their legal questions. In 2013, the last year for which statistics have been released, 1,708 refugees arrived in Colorado. They live in several towns and cities throughout the state, but mostly along the front-range, with the majority living in Denver. In 2016, nearly 50 Syrian refugees arrived in Colorado. Again, it bears repeating, in order for a refugee from Syria to enter the United States, that person must go through 18-24 months of extreme vetting. That vetting determines if the person poses any potential risks to the country. If a risk is discovered, they are not allowed in.

Once a refugee is settled and integrated into a community, that refugee creates an economic benefit to the community. A recent study showed that for every $120-$126 of aid given to a refugee in Rwanda, that same refugee created an annual real income benefit of $205-$253 to the community. Utica, New York, a town that once saw dwindling numbers of residents and sustained economic decline, has now seen a turnaround because it has welcomed so many refugees.

Economist Jeffrey Sachs points out that while there are some negative consequences to hosting refugees in a community (they pay fewer taxes and generally rely on social services until they can become established), they also add economic benefits by bringing added skills to the workforce and earning less than what they could contribute to society as a whole.

Other cities, like Cleveland, have seen massive economic benefits in welcoming refugees. The city initially invested $4.8 million in resettling refugees. The economic benefit to the community resulted in $48 million, a 1000% return on investment. This is partly because refugees are often entrepreneurs who disproportionally create jobs and stimulate demands for new products and services in their local communities.

Having established that Syrian refugees are extremely vetted, are moving to Colorado, and, if they are like other refugees, will create an economic benefit to the community, the question then becomes, how can we help them? Both Lutheran Family Services and the African Community Center need volunteers that will meet refugees at airports and then drive them to their new homes. They need volunteers who can furnish their apartments, teach them English, and act as a local guide to help them become acquainted with their new homes.

 

David Coats is a staff editor on the Denver Journal of International Law & Policy.

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Understanding the Syrian Refugee Crisis and How Refugees Receive Asylum in the United States: Part 2

Image Credit: UNHCR

The first part of this three-part series explained what the causes of the Syrian Refugee Crisis are and where the crisis stands now. The second portion of this series will explore the process a Syrian refugee must go through to receive asylum in the United States. This is important information for all of us to know because of the confusion, lack of information, and fear associated with allowing refugees from this war-torn area into our countries. The intent of this article is to give a clear and unbiased overview of what a Syrian refugee must go through to receive asylum in the United States. This information could also be informative when discussing how, if, and why we should welcome refugees into our communities.

How do they apply?

All refugees apply for asylum through the United Nations High Commission for Refugees (UNHCR). The UNHCR is an international organization under the United Nations that protects and assists refugees. Under UNHCR guidelines, an applicant may qualify for resettlement in another country if: (1) a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group or political opinion can be demonstrated; (2) the applicant is outside of his or her country of nationality; and (3) the applicant is unable or unwilling to avail himself of the protection of that country. If such a person does qualify for asylum under the UNHCR’s standards, then that person will be referred to a third country for resettlement.

If that third country is the United States, the refugee must apply with the federal Resettlement Support Center and go through a rigorous 18-24 month screening process. During the rigorous screening process, officials investigate refugees to ensure the refugee’s story is legitimate and that the refugee will not pose a threat to the health or safety of the United States. The screening involves the participation of the U.S. State Department, the Department of Homeland Security (DHS), the Defense Department, the National Counterterrorism Center, and the FBI. These agencies double-check the refugee’s personal biographical statement and use biometric information to ensure the person’s story and identity are legitimate. Moreover, these agencies check for connections to known bad actors, outstanding warrants, and other information related to whether the person is a potential security risk. Refugees are also interviewed by DHS agents and medically tested for communicable diseases. In sum, seeking asylum is the most difficult and stringent way for a person to enter the United States.

What is different about the process for Syrian refugees?

For Syrian refugees the process goes one step further by requiring them to go through the Syrian Enhanced Review process where the refugee applicant’s file is further scrutinized for accuracy and veracity. The U.S. government added this extra step especially for Syrian refugees “due to the circumstances in Syria.” These circumstances obviously include the war, but also the fact that ISIS operatives are fighting in Syria. As many have observed, the biggest fear in allowing Syrian refugees into the country is the fear that an ISIS operative might pose as a refugee and sneak through the system and commit an act of terrorism in the United States. To prevent that possibility, the U.S. government created the Syrian Enhanced Review. Today, Syrian refugees are subject to the highest level of security checks of any category of traveler to the United States. If there is any doubt about the veracity of an applicant’s story, the applicant will not be admitted.

What next?

For the first several years of the Syrian Civil War the United States accepted a very small number of refugees. Up until last year, the United States received approximately 2,200 Syrian refugees while over 1 million fled to Lebanon. Last year, President Obama promised to increase the number of refugees to 10,000 by the end of the fiscal year (September 2016). That goal was reached in August 2016.

The United States is in a difficult situation. In a post 9/11 society, where fears of domestic and international terrorism abound, we must weigh the concern for safety with our duty to welcome and care for refugees. Indeed, welcoming refugees is a large part of the legacy of the United States. Given the dire circumstances and the difficulty in passing the test compared to the likelihood of a terrorist sneaking through, one must wonder if the screening process is too stringent? The high standards do screen out threats to public safety while nearly guaranteeing that any Syrian refugee that makes its way to the United States is not a threat. When Syrian refugees do pass the high standards set before them, what happens to them next and how can we be a part of it? That question will be answered in the next and final post, addressing what a refugee goes through when he or she finally makes it to the United States and what we, especially those of us in Colorado, can do to help.

 

David Coats is a staff editor on the Denver Journal of International Law & Policy.

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Understanding the Syrian Refugee Crisis and How Refugees Receive Asylum in the United States: Part 1

Photo Credit: EPA

The Syrian Refugee Crisis is not only a problem for residents in Europe and the Middle East; it is a problem for all members of the global community. The Syrian Refugee Crisis has become an issue in Europe and the Middle East because the war has created a massive influx of refugees who need food, shelter, and medical help. The crisis is a problem for the broader global community because all people have a duty to take care of each other, while also ensuring the health and safety of our communities. What are we to do when some nation-states/countries want to welcome a refugee and others are fearful the refugee might be a wolf in sheep’s clothing? This three-part series will explain the cause of the Refugee Crisis, the current stance on the situation, the process for Syrian Refugees seeking asylum in the United States, and finally, what we can do to welcome refugees while also ensuring our local health and safety.

What is causing it?

As with any crisis, there are several contributing factors to the Syrian Refugee Crisis. First and foremost is the civil war that has been raging on in the country since 2011. In the past five years, 11 million Syrians (roughly half of the Syrian population) have been killed or displaced because of the civil war. Currently, there are 4.8 million Syrian refugees in the world. While most of those fleeing the country have sought sanctuary in Lebanon, others have fled to neighboring countries like Jordan or Turkey. Other contributing factors to the crisis include Germany’s promise to accept asylum seekers, Syrian President Bashar Al-Assad’s conscription of practically all men under 30, and the underfunded international effort to address the situation.

What is the current status?

Currently, the EU has taken steps to quell the Refugee Crisis by making a relocation deal with Turkey. The EU and Turkey reached an agreement where Turkey will take many of the refugees in Europe and secure its western border in return for $7 billion from the EU. The EU started a pilot program where it will give Syrian refugees pre-paid Visa debit cards worth $30 a month. The hope for this program is that it will help fuel the local economy and meet some of the needs of refugees both in and outside of established refugee camps. It remains to be seen if and how this pilot program will be successful.

Where are the refugees going?

The vast majority of Syrian refugees remain in the Middle East. They are in Turkey, Lebanon, Jordan, Iraq, and Egypt, while roughly 10 percent have fled to Europe and far fewer have made their way to the United States and Canada. For those in the Middle-East, many live in refugee camps with worsening conditions, but many others live discreetly in urban centers, working odd jobs and trying desperately to make ends meet. With no end in sight for the Syrian civil war, the refugee crisis will only get worse before it gets better. The temporary solutions the surrounding communities pieced together to address the emergency influx are becoming unbearable permanent situations. The global community must find a solution addressing both the symptoms and the causes of the refugee crisis.

Whether living in a camp or in a city, many Syrian refugees are applying for asylum in Europe and North America. However, only a select few are chosen to resettle in the United States. How are they chosen, what screening processes do they go through and what happens to them when they arrive in the U.S.? These questions will be explored in the next two articles.

 

David Coats is a staff editor on the Denver Journal of International Law & Policy.

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Time to Rethink the Continuing State of Emergency in Turkey

Photo Credit: Daily Sabah

Photo Credit: Daily Sabah

After a failed military coup in Turkey on July 15, 2016, the Turkish government decided to declare a state of emergency to take required measures in the fight against the putschists, and return to normalcy as soon as possible. Considering the extension of the state of emergency to six months, and all measures taken in this period, this post brings up the controversial question of the legality of the continuing state of emergency and continuing accusations across the country.

 

Background and the Growing Process

On July 15, 2016, a group in Turkey’s armed forces attempted a military coup to seize control of the government. On July 21, 2016, after the coup failed, Turkish government declared a state of emergency for a period of ninety days pursuant to Article 120 of the Turkish Constitution of 1982, which provides:

“In the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months”.

Following the failed coup, President Recep Tayyip Erdogan clarified that, “the state of emergency had been declared in Turkey … for a duration of [three] months with an aim to totally and swiftly eliminate the FETÖ/PDY (Gulenist Terrorist Organization/Parallel State Structure) terrorist organization, which attempted a coup, and all of its elements”. On October 19, 2016, Turkey’s parliament ratified a planned extension of the state of emergency for three additional months to crack down on everyone suspected to be followers of the putschists. On January 19 2017, the state of emergency was extended second time, and most recently extended a third time scheduled to end on July 19, 2017. According to Article 121 of the Constitution 1982:

“The [Grand National] Assembly [of Turkey] may alter the duration of the state of emergency, may extend the period for a maximum of four months each time at the request of the Council of Ministers, or may lift the state of emergency”.

With an emphasis on the necessity of a determinative and quick reaction to any acts of violence aimed at threatening or abolishing democracy in states, the contentious counter-measures taken by Turkish authorities after the failed coup require a discussion in the context of human rights considerations.

 

Assessing under the International Covenant on Civil and Political Rights (ICCPR)

After the failed military coup, the government started to arrest, imprison, and fire anyone connected with the putschists. However, detentions and firing of thousands of journalists and academics as a massive political purge under the state of emergency gave a different dimension to the government’s unbounded counter-measures.

Nonetheless, it’s incontrovertible that all enforcements of slander laws to members of opposing groups and critics, attacks on the independence of the judiciary, using media and other state resources in favor of the government, and censoring the internet websites, are employed as policies against putschists to return normalcy to the country cannot be conceded as justifications for fighting against putschists contrary to the international human rights considerations.

Relevantly, on September 23, 2003, Turkey ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) as an attempt to ensure the protection of civil and political rights. With regard to the state of emergency, the ICCPR reads in Article 4(1):

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.

Clearly, a state of emergency is an extraordinary situation in which human rights and freedoms could be suspended temporarily. During the state of emergency, governments have the right to detain and hold suspects without charge. Nonetheless, there are some other fundamental rights and freedoms stated in Article 4(2) of the ICCPR which could not be suspended under any conditions including the right to freedom of thought, freedom from arbitrarily being deprived of liberties, and freedom from torture and inhuman treatment or punishment. From this point of view, holding a large population of the Turkish society, including pro-Kurdish and main opposition Republican People’s Party members of parliament, academics, journalists, and ordinary citizens just because of opposing and criticizing the government’s policies –especially, its quest for constitutional amendments that will be voted on in the referendum on April 2017 on switching to a presidential system– and also infringing media freedom in the country could be considered as violation of Article 4(2) of the ICCPR and that could not be justified under any condition even if done as counter-coup measures. Furthermore, using the failed coup attempt as a cover-up to eliminate and a crackdown on any government opponents and critics regardless of the scope and objective of the coup leaders is a violation of freedom of expression and thought which cannot be derogated under any distressed situations such as the state of emergency. During the continuing state of emergency in Turkey, dismissing about 7,316 academics by the first half of January 2017 from their professions who criticized the government’s national policies or signed peace declaration criticizing curfews declared in Turkey’s predominantly Kurdish Southeastern districts in 2015 cannot be justified under any circumstances. In this sense, the mentioned counter-measures taken by the Turkish government against the society is clearly refusing the rule of law and fundamental rules of the ICCPR on a large scale.

 

Accusations Through the Broad Definition of Terrorism

According to the European Court of Human Rights, more than 5,000 cases were filed by Turkish nationals against Turkey relating to the post-coup purge. In the wake of the failed military coup in Turkey, the government launched a purge against alleged supporters of the coup leader Fethullah Gulen, including military officers, academics, and journalists.

As stated by Jonathan Cooper in his manual prepared for the Organization for Security and Co-operation in Europe (OSCE), “[A]n overly broad definition of terrorism can be used [only] to shut down non-violent dissent and undermine democratic society”. There is a similar tendency in Turkey. The counter-measures taken by Turkish authorities in the fight against putschists coup leaders, connected alleged suspects through a broad definition of terrorism.

The overly-broad definition of terrorism, and measures taken to fight against it, are very dangerous because it will impact a large layer of the society, especially ethnic and religious minority groups, peaceful critics, and opponents, by sabotaging their fundamental human rights and liberties, including the right to freedom of expression. Although the Turkish President has said that the main objective of the state of emergency is the total elimination of the “Gulenist Terrorist Organization” and its elements that attempted a military coup. thousands of Turkish scholars were arrested during the state of emergency on a charge related to supporting the terrorist organization, including statements that do not clearly provoke or incite any act of violence. Relevantly, interpretation and application of laws by sabotaging non-derogable fundamental human rights including freedom of expression, freedom of thought, and freedom from being arbitrarily deprived of liberties are all the steps taken to broaden the scope of terrorism.

To be clear, Turkish authorities do not consciously separate terrorist actions from general criticism, or political and ethnic dissents in the country. Therefore all measures were taken under the state of emergency, and within the limits of the international obligations have prepared the grounds to suppress the right to freedom of thought and expression in violation of the rule of law. In simple words, in order to prevent legitimate exercise of the fundamental and non-suspendable human rights, Turkish authorities criminalize not only the acts that are properly accepted as terrorist actions in nature, but also any lawful statements, criticism, demonstrations, meetings, and any other attitudes that do not fall within the scope of terrorism under any circumstances.

It is very clear that Turkish authorities, by defining “criticizing the government’s policies” and “clarification of the opposing views” as terrorist actions have moved away from the main objective of the continuing state of emergency in Turkey. By contrast, all of these attitudes of Turkish authorities towards a large number of the society, mainly academics and journalists, are the significant steps in the direction of restricting democracy and freedom of expression and thought.

 

Saeed Bagheri is a faculty member at Akdeniz University in Turkey with a Ph. D in Public law and a Master’s of Human Rights Law.

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The European Refugee Crisis: Unaccompanied Refugee and Migrant Children

Photo Credit: Getty Images

Photo Credit: Getty Images

The refugee and migrant influx into Europe continues. Since January 2015 approximately 1.2 million people have journeyed across the Mediterranean in an attempt to reach Europe. The majority arrive in Europe by sea, while almost 34,900 refugees and migrants arrived by land. These individuals are fleeing economic and social breakdown such as conflict, violence, and poverty, with the largest numbers leaving Syria, Afghanistan, and Iraq.

The crisis has had a substantial impact on children. UNICEF’s advocacy brief on the refugee and migrant crisis in Europe describes this crisis as a “children’s crisis.” By the end of December 2015, 1 in 3 refugees and migrants in Europe were children. And, based on arrivals in Europe since January 1, 2016, 27% were children.

Especially vulnerable are unaccompanied children. Children are among the most at risk of refugees and migrants – at risk of trafficking, exploitation, abuse, death, rape, and detention, among others. Unaccompanied children are those under the age of 18 years old and travelling alone. In 2015, approximately 25% of child asylum claims were made by unaccompanied and separated minors. However, it is difficult to gather accurate numbers of unaccompanied children because either they are not registering at borders or the country does not allow for their identification in formal registration procedures.

So, what is global community’s responsibility in addressing the issue of unaccompanied refugee and migrant children? According to the Convention on the Rights of the Child, the protection of unaccompanied children is a state obligation. One response to the problem of unaccompanied refugee and migrant children arriving in Europe was that of the United Kingdom, which passed the Immigration Act 2016, Section 67. The Act specifies that the “Secretary of State must… make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.” It further specifies that the number of children to be resettled will be determined by the government in consultation with local authorities. The Act does not specify a fixed number on arrivals in order to assess the local governments capacity and ability to help. The purpose is to resettle unaccompanied refugee children who have fled conflict in the Middle East and whom it is in their best interest to be transferred to the UK.

Although there are real considerations as to capacity and ability of countries to help unaccompanied refugee children, a greater effort should be made by the global community in collaboration with one another and individually to assist this especially vulnerable population as well as the refugee and migrant population as a whole.

Hannah Mitchell is a 2L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

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ICC Convicts Former President Bemba for Atrocities in Central Africa

Photo Credit: Witness.org

Photo Credit: Witness.org

On Monday March 21, 2016 the International Criminal Court (ICC) convicted former Congolese vice-president Jean-Pierre Bemba of war crimes and crimes against humanity committed during the 2002-2003 situation in the Central African Republic (CAR). Bemba was convicted by the ICC of two counts of crimes against humanity, for murder and rape, and three counts of war crimes, for murder, rape and pillaging. Most importantly though, this is the first trial at the ICC to focus on the use of sexual violence as a weapon of war, and the first time a defendant has been convicted for command responsibility for failing to take action to stop crimes he knows are being committed by his troops. More than 5000 victims participated in the hearings, the highest number in ICC history.

In 2002 Bemba was commander-in-chief of the Movement for the Liberation of Congo (MLC) when then president of the CAR, Ange-Felix Patasse, requested his assistance in putting down a coup waged by a group of soldiers loyal to former CAR president Kolingba. In coordination with Colonel Qaddafi of Lybia, Bemba sent 1,500 MLC troops to the CAR, who were accused of committing more than 1,000 rapes, in addition to widespread murder and pillaging.

Article 7 of the Rome Statute, which provides for the establishment and administration of the ICC, defines crimes against humanity as “acts when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(g) identifies “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as acts which may be invoked to constitute the actus reas of a crime against humanity. Article 8 defines war crimes as grave breaches of the Geneva Convention, including acts against persons or property, when committed as part of a plan or policy or as a part of a large-scale commission of such crimes. Under this definition, the over 1,000 rapes committed by the MLC troops, rises to the level required by the statute in a non-international conflict, and the actus reas of rape is expressly included in 8(2)(e)(vi). 8(2)(f) does limit the situations in which rape or sexual violence can be considered ample actus reas to convict of war crimes to those where there is a protracted armed conflict, hence why this application has never previously been appropriate. In this case, however, the widespread use of rape as a weapon was in evidence from the over 5,000 victim participants.

Commentators have been especially impressed with prosecutors use of Article 28(a) of the Rome statute which allows for a military commander to be held criminally responsible for crimes committed by forced under their control when the military commander knew or should have know that the forcer were committing those crimes, and when that commander failed to take all ‘necessary and reasonable measures within his or her power’ to prevent the commission or to submit the matter to authorities for investigation. Under this Article, the ICC tribunal convicted Bemba as a result of acts committed by his troops which he did not personally commit. This precedent has been heralded by a host of human rights organizations including Amnesty International who said that this verdict, and the principles it espouses, represent a “historic moment in the battle for justice for victims of violence in CAR and around the World.”

This verdict has assured justice for thousands of victims of sexual violence perpetrated as a weapon of war, and the ICC, a beleaguered institution, can now proudly claim to hold commanders responsible for the actions of their troops. However, this investigation began nearly ten years ago, the trial took four years, and the verdict came almost two years after close of arguments. The ICC handles cases which are complex and sensitive, often taking a long time to go through evidence and allow for victim participation. Critics of the court cite its long lag-times, exorbitant costs, and lack of international participation as reasons why it has been a failure at bringing perpetrators, especially those outside of Africa, to justice. Hopefully those critics concerns are at least partially dissuaded by the conviction of Jean-Pierre Bemba, because this verdict is more than just another conviction of a despised African war-lord. By convicting Bebma of rape as a result of command responsibility under Article 28, it is a huge step forward towards strengthening the enforcement of the principles that lay at the foundation of the ICC.

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The Hidden Cost of Shrimp: Forced Labor in Thailand’s Fishing Industry

1 Photo
A Thai fishing boat along Koh Samet, an island in the country’s eastern seaboard. Source: Mongabay, Lies, Deceit And Abduction Staff Thailand’s Fishing Industry. Photographer: Philippe Gabriel.

Imagine a pirate boat, surrounded by miles of unending water. Exhausted, scared people trapped aboard that floating prison, forced to work up to twenty-four hours nonstop for little or often no pay. They are living in inhumane conditions only on rice, parts of fish that no one else would touch, and unclean, unhealthy water. They are held in a cages, regularly beaten, forced to take methamphetamines to keep them working long hours, and sometimes killed for working not fast enough or for trying to escape. These execution-style killings are done in a variety of horrifying ways including electrocuting or tying the slave “by his limbs to the bows of four vessels, so that the ocean waves [will] tear the worker’s body apart.” Having no glimpse of hope to be ever free, they are desperate because even risky escapes are rarely successful: corrupt law enforcement officials often return fleeing slaves back to the ships for a fee. Imagine the dark and chilling refrigeration area on this pirate ship where caught fish are stored along with the corpses of killed slaves. Now imagine a shrimp farm in Thailand, where the farmers raise shrimp feeding them slave-caught fish that pirate ship supplied. Once the shrimp grow, they are exported to food manufacturers and retailers around the world, including the United States’ major food chain distributors such as Santa Monica Seafood, Stavis Seafoods, Thai Union and end up in supermarkets such as Costco, Wal-Mart, Kroger, Safeway, and Albertsons. Did you buy shrimp lately? The price for that “plate of seafood” on your table costs more than the dollar value you paid for it. The price is horror, the desperation of forced laborers, the tears of their mothers and children. As Hlaing Min, a runaway slave, one of a few who have successfully fled from a pirate boat, expressed: when Americans are eating seafood, “they should remember” the slaves, the slaves whose bones could easily form a mountain – “an island, it’s that many” – of bones of forced laborers that are under the sea.

It is not a fictional horror story. It is a reality, the reality of modern-form slavery in Thailand. Thailand, one of the world’s major seafood exporters and a key seafood supplier of United States, is remarkable in its forced labor practices. Human rights abuses in the Thai fishing sector are not a new phenomenon; deeply embedded in a commercial global supply chain, these abuses did not receive required attention up until recently. Unsurprisingly, Thailand is the only country in the world that voted against a U.N. international treaty intended to stop forced labor. Thailand’s current fishery laws, including the Fisheries Act, B.E. 2490 (1947); the Act Governing the Right to Fish in Thai Waters, B.E. 2482 (1939); and the Thai Vessel Act, B.E. 2481 (1938) are all woefully outdated.

Despite the Thai government’s numerous assurances to the international community to clean up its fishing industry from human rights abuses and its boosted legislative efforts in regards to protection of workers employed within the fishing industry (including Thai Anti-Trafficking in Persons Act, B.E. 2551 (2008); Labor Protection Act, B.E. 2541 (1998); the Recruitment and Job-Seekers Protection Act, B.E. 2528 (1985); the establishment of more strict labor regulations on fishing vessels; the requirement of national registry for illegal migrant workers; and the establishment of shelter facilities for victims of human trafficking), uninterrupted exploitation of forced laborers is still present in the fishing sector. “The reality is [that] the Thai government’s high-sounding rhetoric to stop human trafficking and clean up the fishing fleets still largely stops at the water’s edge,” Phil Robertson, deputy director of Human Rights Watch’s Asia division explained.

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Former slaves on Thai-run ships wait processing after being rescued. Source: Mongabay. Photo courtesy of the Labour Rights Promotion Network.

Corruption that remains among government and law enforcement officials creates an environment of impunity, especially around human rights abuses of migrant laborers, discouraging the rare surviving victims from pursuing charges against their abusers. Due to virtually inexistent legal protection for undocumented workers and fear of arrest or deportation, most migrant fishers choose to be abused rather than seek out protection from the Thai authorities. Making human rights abuse even worse, there is a history of political and cultural conflict between Thailand and its neighboring countries and, as a result, people in Thailand have little or no concern for the lives of migrants; some of them even “see the abuse as justified.” The exploitation of laborers in the Thailand fishing industry already is “one of the worst examples of human rights abuse in the world today.” Yet the International Labor Organization stressed in its 2015 Report that countless cases of human trafficking and forced labor that were already uncovered are only “the tip of the iceberg in terms of the real prevalence of such abuses” in Thailand.

Abusive practices of overfishing have ravaged the marine ecosystems of Thailand, depleting fish stocks, and pushing fishing boats to move farther offshore, traveling as far as Eastern Indonesia and East Africa in search of a profitable fish catch. They often stay at sea for months or even years at a time. Not many Thai residents want to take these low-paid, dangerous jobs as fishermen; legal labor migration is limited through Thailand’s government policies, and it is not even economically viable for fishing companies to use a paid workforce. Yet Thailand seafood exports generate near $7 billion in annual earnings and to meet this demand a network of human traffickers and brokers has emerged. These brokers regularly recruit men and sometimes even children from poor neighboring countries, coercing, tricking and often drugging and kidnapping people to work in the fishing-related industry. When forced laborers become unable to work, die, or escape from sea slavery, the brokers can easily replace them with new recruits. Each slave, who is bought and sold like an animal, costs around $1,000, in some cases even less than $400 and is often subjected to forms of debt bondage, told to work off the “debt.”

As the U.S. State Department noted in its annual Trafficking in Persons Report (TIP), there are approximately three to four million migrant laborers in Thailand, most of them from Burma, Cambodia, Laos, Vietnam, India, China, and Uzbekistan. According to the Environmental Justice Foundation, more than ninety percent of people working in Thai fishing industry are migrant workers. Yet the total population of fishermen is unknown because most migrants do not go through a registration system. In its 2014 report, the U.S. Bureau of International Labor Affairs has reported that shrimp in Thailand is produced by both child and forced labor. TIP puts Thailand at Tier 3, the lowest level of its report, meaning that Thailand does not comply with the Trafficking Victims Protection Act’s minimum standards and is not making substantial efforts to comply.

Even though U.S. companies have become increasingly aware of slavery and human trafficking in the Thailand supply chain, as of 2015, United States shrimp demand has increased its production in Thailand by twenty percent from the last year, expecting to import at least 250,000 metric tons of shrimp. Though the United States has a large domestic shrimp industry in the Gulf of Mexico, U.S. shrimp are more expensive than the shrimp from Thailand. Thus, driven by the goal of keeping their prices for shrimp low and so to obtain more profits, U.S. retailers import shrimp. In fact, ninety four percent of the shrimp consumed in U.S. is imported farmed shrimp.

Some advocates of ending human rights abuses suggest that retailers should simply boycott suppliers who engage in slavery practices. Yet corporations have pointed out that this would not solve the problem because less-ethical buyers would line up to take their place or pointed to a lack of alternative sustainable seafood. Furthermore, because of the complicated nature of the global seafood chain, the use of trafficked labor is easily hidden in the process. As Huw Thomas, head of seafood procurement at Wm Morrison Supermarkets explains, tracking the source of seafood products is very difficult because the seafood industry is incredibly complicated and it may sometimes require tracing more than ten steps that separate the corporation, which bought the farmed seafood products, from the origins of fishmeal that go into the shrimp. Still some human rights organizations have already simplified that tracking for corporations: “[i]f you buy prawns or shrimp from Thailand, you will be buying the produce of slave labour,” Aidan McQuade, director of Anti-Slavery International, explains.

Only a few resources and programs currently exist that help to identify links in the seafood supply chain where slavery occurs. Humanity United (HU), a San Francisco-based foundation, recently designed a campaign to combat slavery and human trafficking. The campaign includes four aspects: (1) focusing on targeting a single industry in a single country (HU chose Thailand fishing industry as a target); (2) chartering a coordinated strategy by cultivating a network of partners (HU encourages its partners to engage in work and not just simply sign checks to the organization); (3) interacting with the corporate business interests (HU confronts human rights abuses and helps companies to improve labor conditions of Thai workers); and (4) monitoring and confirming whether labor conditions in the seafood industry are actually improving (HU plans to pursue certification platforms and incorporate its assessments of work conditions into the certification process).

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On Costco shelves as of August 18, 2015. Source: Case3:15-cv-03783.

Everyone in Thailand and every corporation doing business with Thailand is keenly aware of slavery and human trafficking issues in the seafood industry supply chain. Indeed, all leading retailers “have factored these issues into their social responsibility approaches.” For example, in 2014, several corporations, including Costco and Tesco, announced publicly that they do not tolerate human trafficking and slavery and promised to scrutinize their supply chains, avoiding suppliers that engage in human rights abuses. Yet, violating its own public statements and its Supply Chain Disclosure, Costco continued to sell slavery-tainted shrimp to consumers until fall of 2015. Frozen shrimp and shrimp in wonton soup that Costco was selling were supplied to Costco by Thailand company Charoen Pokphand Foods Public Company Limited (Charoen Pokphand Foods) or C.P. Food Products, Inc. (C.P. Foods). Those Thailand-based companies, as Guardian reported in June, 2014 after its six-month investigation, bought processed fish from suppliers that operated or, in turn, bought from pirate fishing vessels manned with slaves; C.P. Foods fed that processed fish to the shrimp it farmed prior to selling it to Costco. Furthermore, in 2014, Bob Miller, C.P. Foods’ UK managing director, already admitted that the company knew “there’s issues with regard to the [raw] material that comes in [to port].” However, Costco’s corporate practice of dealing with bad actors remained intact.

While activists alone cannot eradicate human rights abuses in the seafood industry, when the local Thai authorities fail to rein them in and U.S. corporations remain passive in cleaning up or monitoring their supply chains, U.S. consumers, who are unwilling to support slave labor practices, can help. On August 19, 2015, Monica Sud, one of Costco’s customers, commenced a California consumers’ class action against Costco and its Thai shrimp suppliers. Sud filed three claims for relief. The first claim is against Costco, Charoen Pokphand Foods, and C.P. Foods for unlawful business acts and practices. In regards to Costco, the lawsuit alleges that Costco for several years knowingly sold shrimp from Thai suppliers that farmed those shrimp on fish obtained from slave laborers and Costco was aware that the shrimp were directly derived from a supply chain that depended upon human trafficking and slavery. The second claim is against Costco for misleading and deceptive advertising practices, such as despite Costco’s knowledge of human rights abuses in its supply chain, Costco did not advise its customers that its farmed shrimp was tainted by the use of forced labor. The third claim is against Costco for violation of the Consumer Legal Remedies Act, seeking an injunction to bar Costco from selling forced labor produced products, requiring Costco to disclose products in its supply chain that have been tainted by slave labor, and alleging that Costco’s use of forced labor is inconsistent with its California Transparency in Supply Chains Act disclosure. The lawsuit also seeks to compensate shrimp products’ purchasers. The complaint does not allege Costco’s corporate liability for complicity in human rights violations, yet it does so against C.P. Foods, stating that the corporation is directly complicit in the use of forced labor practices and has profited from those practices.

After the commencement of Sud lawsuit, Richard Galanti, a spokesman for Costco, responded that Costco is doing all it can “to address the issues that have surfaced,” working with the Thai retailers, the fishing industry, and the Thai government. Acknowledging the existence of slave labor in Thailand’s fishing industry, Galanti noted that unsatisfied customers “can return [Costco]’s item for a full refund.” As of November 15, 2015, Costco removed all seafood products made in Thailand from its Colorado stores and its website. Anne Marie Murphy of Cotchett, Pitre & McCarthy, LLP, one of the attorneys representing Sud, stated that the lawsuit pursues goals of corporate reform and publicity; it is aimed to raise consumers’ awareness as to the issue of slavery; and hopefully will influence U.S. corporations’ practices, bringing long needed “change through the marketplace.”

Sud is the first consumer class action alleging inadequate disclosures and it set an example, started a new wave of class action litigation against other corporate defendants that have similar issues with forced labor produced products. Class actions already have been filed against Hershey, Iams, Mars, and Nestle. It is also expected that the attorney general, who has authority to enforce the California’s Transparency in Supply Chains Act, will begin filing civil suits against corporations, forcing them to fix their disclosures in compliance with the Act. Furthermore, keeping up with this movement, the Business Supply Chain Transparency on Trafficking and Slavery Act of 2015 was recently introduced into the U.S. House of Representatives and the Senate. The new law will require large corporations nationwide to report any measures they have taken to identify and address human rights abuses within their supply chains.

While according to Satasap Viriyanantawani, general manager for the Thai business of Siam Canadian Foods, shrimp buyers in United States can even dictate the price they want to pay to suppliers, giant purchasers, such as Costco, can challenge the system of human rights abuses, forcing change by dictating terms to its suppliers and ensuring the products they buy are not derived from or otherwise created through the use of slavery or human trafficking. However, instead of using its market power to stop slavery in its supply chain, Costco had facilitated it, fueling the cycle of human trafficking and slavery through its purchases of tainted shrimp. If Costco, a corporation with total revenues of $116,199,000 for 2015, does not have the resources to monitor and control its suppliers, then who does?

Eliminating human trafficking and slavery from the global seafood supply chain is not an easy task. Yet it is well possible if everyone – including international and national communities, the private sector, and consumers – gets involved and presses for change. As a long-term solution for making a real impact, getting corporations to change their policies and combatting slavery in their supply chains, the international community should create an enforcement mechanism of one model standard to monitor, audit, and certify the integrity of global supply chains. All information regarding each individual country should be required to be shared with the international community. Given the fact that U.S. corporations have “dominant market share” in the world, the corporations should use their position to influence and pressure their suppliers to join an “accountability revolution,” meaning to uphold standards of the international community, enforcing norm-conforming conduct, performing audits of their supply chains, and preventing the cycle of human trafficking and forced labor. It is in the best interest of everyone in the international and national communities to ensure that the price for a “plate of seafood” is the monetary amount and not its current real cost of the desperation and horror of people who were lured into a life of slavery until they meet their watery grave.

Ilona Starchak is a 3L law student at the University of Denver Sturm College of Law and the Staff Editor on the Denver Journal of International Law & Policy and the Denver Criminal Law Review.

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Legalization in Mexico: Ending pot prohibition on human rights grounds

“A prohibition law strikes a blow at the very principles upon which our government was founded.” – Abraham Lincoln

The concept of prohibition, while historically was associated with alcohol, is a main talking point in today’s culture when it comes to the topic of marijuana. In recent years, the global community has grabbled with prohibition of marijuana. While many countries have allowed for the legal use of medical marijuana and of possession of small quantities for personal use, and one country has gone so far to legalize the drug outright, no country has considered whether the use of marijuana is a human right; until now.qsfTEKW

On November 4, 2015, Mexico’s Supreme Court made a historical ruling that personal use of marijuana is a “fundamental human right.” The eighty-eight-page opinion based its opinion on the concept that people have the right to engage in “recreation activities that do not harm others.” While Mexico’s ruling does not legalize the sale of the drug, the ruling has caused a ripple effect across Mexico as well as the global community. The global community now has to determine whether the drug treaties from the 1960s and 1970s hold weight in today’s changing view on marijuana. Specifically, the global community will need to address marijuana at the Special Session of the United Nations General Assembly on the World Drug Problem, as the current treaties call “for international co-operation” in the prohibiting and criminalizing the use, sale, distribution, and production of marijuana. With more countries leaning towards the legalization of marijuana, the treaties and their purposes may become obsolete.

Although Mexico’s ruling has a global impact on the debate prohibition of marijuana, Mexico’s ruling has two other global impacts. The first is how human rights are viewed. Mexico’s ruling was grounded in the “right to the free development of one’s personality.” The “right to the free development of one’s personality” arises from Article 22 of the United Nations Universal Declaration of Human Rights, which states:

“Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”

Mexico’s interpretation of the right to development of one’s personality is the right to dignity, which should allow a person to make decisions about one’s life. Mexico equated the choice to consume marijuana to the choice of obtaining a divorce arguing that these choices are in the “sphere of personal autonomy” that should not be interfered with, especially by a government. Mexico went further and explained that “mental experiences” that one has while under the influence of marijuana is “among the most personal and intimate that anyone can experience,” which bolsters the argument using marijuana is within sphere of personal autonomy.

One could use Mexico’s interpretation of the right to development of one’s personality to look at the United States’ right to privacy, which is embedded through out the United States’ Constitution, to make the argument that United States’ federal government should not have the ability to prohibit the personal use of a substance. The United States at the moment does not control what a person chooses to ingest for meals, pain medicine, alcohol, etc. So why should the United States prohibit the personal ingestion of marijuana, which as Mexico points out causes a “personal and intimate” experience?

The counter-argument is that it is the right to development of one’s personality is too broad and includes “anything the individual might wish to do” that causes a “personal and intimate” experience. By allowing a person to do what they want to develop their personality the door to what people can do will open wide open. Granted this is a slippery slope argument, but the argument may find traction in governments that want to keep drugs and other questionable activities to a minimum.

The second impact is on how the global community views international treaties. By legalizing the personal use of marijuana, Mexico goes against United Nations treaties on drugs. While each country has the right to determine what happens within the country and the right to not have the international community interfere with internal policies, countries must adhere to treaties that the country signs. If a country does not adhere to the treaties it signs, why even have international treaties that cannot be enforced? Mexico’s ruling shows the weakness in international law because there is no real mechanism to enforce the drug treaties. Even if the International Court of Justice wanted to bring suit against Mexico or any other country currently violating the treaties on drugs, those countries would have to consent, which is very unlikely.

Regardless of how one feels about the effects of Mexico’s ruling and the ever changing debate on marijuana, the global community will soon have to determine whether or not to continue the prohibition of marijuana.

Teresa Milligan is a 3L law student at the University of Denver – Sturm College of Law and the Editor-in-Chief for the Denver Journal of International Law and Policy.

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No remedy for Nicaraguan victims of kidney disease

La Isla de Las Viudas (“the Island of the Widows”) surrounds Ingenio San Antonio (ISA), Nicaragua’s oldest and largest sugar mill. As the exclusive source of employment in town, the operation has employed nearly all of the local residents since its inception, and many say has been slowly and silently killing themImage_5_Sugar Cane_diego-rivera

Throughout the past two decades, over 20,000 sugarcane workers in El Salvador and Western Nicaragua have died prematurely after contracting Chronic Kidney Disease (CKD). According to the World Health Organization, it’s difficult to determine which country has the highest rate worldwide because data on the disease is so limited. But the Pan American Health Organization claims that the Nicaraguan CKD death rate – 6 out of 10 sugarcane workers – is the highest in Latin America. Given the extreme poverty in Nicaragua, conventional remedies, like kidney transplants and dialysis, are not accessible to the victims. In Nicaragua, a CKD diagnosis is a death sentence. While the official cause of CKD is yet to be determined, the overwhelming evidence points to occupational and environmental hazards.

ASOCHIVIDA (The Association of Chichigalpinos for Life) is a local group comprised of 2,000 former sugarcane workers and family members affected by the disease. In 2008, ASOCHIVIDA filed a complaint with the Compliance Advisor/Ombudsman (CAO), the independent recourse mechanism of the International Finance Corporation (IFC), the private sector lending arm of the World Bank. The CAO handles complaints from project-affected communities with the goal of enhancing social and environmental outcomes on the ground.

The ASOCHIVIDA complaint alleged that the World Bank violated its lending standards by failing to acknowledge the prevalence of CKD in its appraisals of operations at ISA before approving a $55 million loan to ISA in October 2006.

While working for the Center for International Environmental Law, attorney Kristen Genovese (now with the Center for Research on Multinational Corporations) assisted ASOCHIVIDA with filing the CAO complaint. At the time, Genevose pointed out that the Nicaraguan government also failed to protect the sugarcane workers.

In the wake of the CAO complaint, ASCHOIVIDA and Nicaragua Sugar Estates Ltd. (NSEL) requested a formal public health investigation. (NSEL owns ISA, and Grupo Pellas has majority ownership in NSEL. U.K.-based, multinational, agribusiness, Tate & Lyle, is also a minority owner.) Although the IFC maintains that it complied with its strict social and environmental due diligence standards, the World Bank sponsored an ongoing CKD investigation. The investigation included three foundation studies, which were all led by Boston University in partnership with the Center for Disease Control and Prevention.

In addition to the World Bank’s massive sponsorship, other powerful, corporate interests also backed the investigation. The Sugar Producers of the Central American Isthmus contributed $1.05 million to the occupational part of the investigation, and the National Committee of Sugar Producers of Nicaragua contributed $675,000 to the adolescent component of the investigation. Although the CDC maintains that numerous measures were in place to protect the research from the undue influence of the sugarcane industry, many suspect the investigation may harbor an overwhelming bias in favor of the sugarcane industry.

Bias or not, the BU investigative team published a preliminary report in 2012 finding that the specific cause(s) remained unknown. The preliminary report provided no scientific link from industry to disease. However, in the most recent investigative report, the group concluded that a number of variables including a decline in kidney function during the harvest and variances in the severity of CKD trending with different job categories as well as duration of employment all provide evidence that one or more risk factors of CKD are occupational. Their current hypothesis is that the CKD epidemic is caused by a deadly cocktail of many variables including, but not limited occupational hazards, poor labor practices, chronic dehydration, slash-and-burn harvesting technique employed by sugarcane workers, and toxins found in pesticides and heavy metals.

In 2012, NSEL and ASOCHIVIDA reached a final agreement outlining provisions related to medical care, economic development and continued support for the ongoing research by Boston University. After this agreement was reached, the CAO continued to monitor its implementation. In 2015, the CAO issued a detailed Conclusion report, closed the case, and stepped down from its role as mediator.

The chichigalpinos, and the small, international community aware of the situation, can simply wait for the investigative teams to continue their long-term studies. As the dire situation has gained more international attention, other public health professionals have started their own independent studies. Catharina Wesseling, a researcher at the Universidad Nacional in Heredia, Costa Rica and the Karolinska Institute in Stockholm is currently studying the disease. According to Wesseling, “This epidemic is an occupational disease with possibly one or more yet unknown environmental components interacting with occupational dehydration. The unknown factor(s) may be a pesticide, arsenic, an infectious agent, use of nephrotoxic drugs, or other environmental pollutants. But there is no room for much doubt that chronic dehydration is one major factor.” La Isla Foundation (LIF), a León-based international research and policy NGO continues its CKD work at the intersection of public health and human rights.

The causality link between both labor practices and environmental conditions and CKD will be a crucial finding for everyone involved. Any future litigation will turn on the victims’ ability to provide this nexus.

In the meantime, victims and human rights advocates have a number of remedies they might explore.

In 2011, Dominican sugarcane workers lodged a complaint with the US Department of Labor’s Office of Trade and Labor Affairs (OTLA) alleging that the Government of the Dominican Republic had failed to enforce labor laws as required by the U.S. Dominican Republic-Central America Free Trade Agreement (CAFTA-DR). As a party to this multilateral agreement, Nicaraguan’s could, as the Dominican sugarcane workers have, request that OTLA launch an immediate investigation into the conditions in Chichigalpa.

Another possible avenue for legal remedy lies within another US agency, the Environmental Protection Agency. In 2008, the US funded conferences in both Nicaragua and El Salvador to promote sugarcane biofuel production. In embassy cables released by WikiLeaks, ambassadors lauded ISA’s embrace of bioethanol production after pressuring both countries to expand into biofuels. A subsequently, leaked cable revealed that the U.S. State Department had designated Nicaragua as a “high-priority” bioethanol producer. On February 3, 2015, the EPA designated sugarcane ethanol as an advanced renewable fuel as part of its Renewable Fuel Standard (RFS2) Program. Before participating in the RFS program, all companies are required to register with the EPA.  Nicaragua Sugar Estates Ltd. is listed on the EPA’s Fuel Programs Registered Company/Facility ID List with RIN: 5897. Assuming a bioethanol producer endorsed by the EPA must comply with certain labor and environmental standards, sugarcane workers may be able to seek a remedy through this branch of the US government.

Still another avenue might be for American sugar consumers to bring a consumer protection class action as Costco customers have in California who don’t want to serve “slave-shrimp” for dinner.

Proceeding upon the assumption that if and when a multinational corporation’s operations damage a local community that community ought to have recourse to justice somewhere, human rights attorneys will need to get creative in seeking legal remedies for the injured parties. For now, maybe a spoonful of sugar will help the human rights abuses go down.

Ty Nagamatsu is a 3L at the University of Denver – Sturm College of Law and Staff Editor on the Denver Journal of International Law and Policy.

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The Migrant Crisis: A Test of European Coherence?

By Alexandra Esmel

Europe is facing one of its largest refugee crisis since the end of the Second Word War. Violent conflicts in the Middle East (mostly from Syria, Iraq, Afghanistan) and in Sub-Saharan Africa (mostly from Eritrea, Somalia) have generated the flight of thousands of men, women and children from war zones, persecutions and/or extreme poverty. The impact of these conflicts is ever increasing on the civilian’s side hence, the large number of displaced (forced or voluntary) civilians into foreign countries. The wealth of Europe where most members have ratified the 1951 Refugee Convention have made it an attractive choice for these persons looking for a safe place to stay. Whether legal or illegal, for economic or humanitarian reasons, migration towards the EU is nothing new, however the numbers of migrants reaching the EU or dying trying is now too high not to make the news.hhh

The right of free movement of the persons within the Schengen is a sacrosanct element of the European Union and raise the crisis to a supranational level. However, as the crisis escalated, the EU has lacked of steadfastness in comparison with its individual members which in turn led to important disparities in the way the crisis is handled.

Italy was the first member of the EU to respond to the humanitarian crisis of migrants with the Operation Mare Nostrum in 2013. Italy carried out its own rescue and search missions from its borders all the way to the coast of Libya.  The operation was unfortunately discontinued after the Italian request for additional funds to other EU Member States remained unsuccessful. Operation Mare Nostrum was then replaced by the EU Frontex mission which contrary to its predecessor only aims at securing the European borders. In 2015 alone, more than 300, 000 persons in distress illegally reached Europe via the Mediterranean Sea in hope of safer and better lives.

Up north, the Western Balkans route (via Turkey; Greece then Macedonia, Serbia, Hungary, Slovenia, etc…) is also one the busiest routes to the EU. More importantly, many refugees and economic migrants call upon the services of unscrupulous smugglers who charge them thousands of dollars for a life-threatening trip to their final destination by sea and/or land.

They embark on a very long and very dangerous journey to reach Europe by sea and land, risking everything they have: their lives and that of their families coming along. In August 2015, Austrian authorities made the macabre discovery on a highway of 71 dead corpses of migrants (assumed to be from sub-Saharan Africa) locked in an abandoned truck.  Before that, in 2013, a boat carrying more or less than 500 African migrants sank by the coast of Italy by Lampedusa. An outraging number of 360 persons died and 155 were rescued by the Italian navy. At the time of writing of this article, the humanitarian crisis is intensifying, the UNCHR has called on governments to strengthen rescue operations, provide swift access to asylum procedures for those in need of protection, and offer legal alternatives to dangerous sea crossings. The UN Agency also estimated that 3,500 persons died in 2014 as a result of the crisis.

As it has been demonstrated with Operation Mare Nostrum, leaving one country to deal with the influx of migrants in the hope that it will fade away is a mistake (Italy and now Hungary). By law, every non-EU country person must register in the first European country they set foot in to initiate the appropriate immigration status procedure, may it be that of an asylum seeker or of an economic migrant. Hence, the clogging of small countries of entry to the EU such as Slovenia (2 million inhabitants) or Hungary (10 million inhabitants).

Hungary, the first state in the Schengen zone for migrants traveling via the Western Balkans route, just built a fence on its border with Serbia (not in the Schengen zone) to prevent the arrival of migrants into Hungary and thereby the Schengen zone.

Finally, the Hungarian government unilaterally decided in October 2015 to close its border with Croatia (a candidate to the Schengen area) to migrants albeit “just” being countries of transit for migrants who generally wish to settle further west in Germany or France. On the measure, the Hungarian government’s spokesman stated that “The Hungarian government has taken the steps […] to protect the internal European freedoms and the security of the citizens of Hungary and Europe”.

More alarming, Austria which is a member of the Schengen has now moved to erect a physical border with another member of the Schengen zone: Slovenia. Certainly, it is for the purpose of deterring illegal entry into its territory but inherently it interferes with the EU principle of free movement in the Schengen area. The impossibility to reach Hungary will deviate migrants from Hungary to Slovenia and other neighboring states, the same goes with Austria and Slovenia. Changing the route will not solve the challenge that Europe is facing as a political and economic union. 

In April 2015, the European Parliament adopted a resolution to impose mandatory migrants’ quotas on its Members in order to distribute equally the responsibility inherent with the arrival of migrants. The European Commission stated itself that the migration crisis is not an Austrian crisis. This is not an Italian, French, German or a Greek or a Hungarian crisis. This is a European crisis and it requires a collective European response. France and Germany are in favor of the scheme while others oppose it vigorously. Several Balkans states have denoted their opposition to binding quotas, Slovakia is even considering challenging the decision before the Court of Justice of the European Union.

In May 2015, the European Parliament announced the establishment of an emergency mechanism for relocating migrants, a resettlement scheme to take in migrants from countries outside the EU and more funds for securing borders.  Finally, the Balkan summit of 25th October 2015 resulted in a 17-point plan agreement between Europe and the Balkans states. The plan includes a “deal” still under negotiation with Turkey to help with the flux of migrants in exchange of visa-free travel for Turkish citizens and financial support. The implementation of the plan will be monitored by the European Commission on a weekly basis notably regarding the management of borders and of the flow of migrant (exchange of information; coordination with Frontex etc…).

Looking at the future, it is important to realize that this debate should also focus on “immigrants-to-be”: persons wishing to establish their residence in the EU for at least 12 months. The bottom line is that many economic migrants and asylum seekers, legal or illegal, are not simply in transit and actually intend to work, put their children to school and/or to stay in the host country for some time. Once they have reached Europe, they still have to fulfill the conditions for residence or work in the host country.

The arrival of migrants coincides not only with important economic difficulties in the EU but also with the recent rise of far-right parties across the continent. As much as the Grexit drama was an important test for Europe as a financial union, the migrants’ crisis might as well be the test for the defined idea of a European solidarity, identity and union.

ddd

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University of Denver Sturm College of Law

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