Tag Archive | "immigration"

Source: Farm Futures

NAFTA’s failure could create an immigration crisis in the United States

Source: Farm Futures

Source: Farm Futures

Although the controversy surrounding the North Atlantic Free Trade Agreement (NAFTA) typically revolves around jobs and trade, NAFTA impacts more than just trade relations; it also has a major influence on immigration patterns in the United States. President Trump threatened to include immigration control as part of NAFTA re-negotiations when he recently tweeted “[t]hey must stop the big drug and people flows, or I will stop their cash cow, NAFTA.”[1] Although Trump’s statements on NAFTA and immigration are making headlines, relying on Mexico to help curb immigration flow is nothing new. Mexico has been assisting the United States’ for decades and assistance only increased after NAFTA entered into force in 1994. In the past, the U.S. often seemed to have the upper hand in its immigration agreements with Mexico, however, with the recent developments over NAFTA, this may be changing.

Though its effectiveness is hotly debated, NAFTA did improve the economies of the United States, Canada, and Mexico; Mexico’s economy was particularly boosted.[2] From this arose a relationship of mutual reliance on the part of both Mexico and the United States. Mexico’s economic reliance on the United States put it in a position where it is often expected to alter its immigration laws and border policies at the request of the United States. In turn, as the United States has continued to ask for Mexico’s cooperation; it has become increasingly reliant on Mexico to assist in reducing the number of migrants coming to the United States’ southern border. In particular, the recent mass migration of Central American migrants exemplifies how the United States’ role as the dominant economic power in the region impacts Mexico’s immigration laws and policies.

Past Mexico – United States relations

The passage of NAFTA liberalized Mexico’s trade with the United States and Canada, and provided a significant boost to its economy.[3] In addition to opening its borders to trade, Mexico began cooperating with the United States more on border security.[4] For example, in 1997, in exchange for economic aid, Mexico worked with the United States to warn migrants of the dangers of smuggling and border crossing in Operation Gatekeeper III.[5] In 2007, another joint operation, La Merída, focused efforts on drug trafficking rather than on human smuggling.[6]

In 2014, the number of unaccompanied minors and families arriving at the United States’ southern border surged, the majority of whom were from El Salvador, Guatemala, and Honduras.[7] Fleeing extreme poverty or gang violence, the number of unaccompanied minors increased by 77% with 38,759 arrivals in 2013 compared to 68,541 in 2014.[8] For families, the number surged 361%, with 14,855 apprehended in 2013 to 68,445 in 2014.[9] For the most part, those arriving were fleeing from extreme poverty or gang violence.[10] President Barack Obama described the event as a humanitarian crisis.[11]

In response to this crisis, President Obama negotiated a deal with the Mexican government to help strengthen its border in an attempt to prevent migrants from reaching the United States. The result was the implementation of Programa Fontera Sur (Southern Border Program), which is in part financed by the United States.[12] Prior to the program’s implementation, security was uneven along Mexico’s southern border.[13] Along some parts of the border there was a high tolerance for those crossing into Mexico, both temporary visitors, but also for those passing through on their way to the United States; other sections, however, were significantly more secure.[14] With the implementation of Programa Frontera Sur, Mexico’s southern border security radically changed. Mexico became an immigration “enforcer” for the United States, stepping up detentions and deportations significantly.[15] For example, Mexico increased its deportation of migrants by 35% from 2013 to 2014.[16] This included 18,169 children in 2014, a 117% increase from the number of children deported in 2013.[17] Meanwhile, the number of apprehensions and deportations at the United States’ border substantially decreased.[18]

The program is unpopular in Mexico and has been condemned internationally. Mexican scholar and activist Sergio Aguayo, told NPR that “We are now the servants of the U.S. in this role.”[19] Mexico’s significant increase in deportations is also criticized as being hypocritical.[20] Further, the program has also been criticized for human rights abuses, as well as the criminalization of migrants.[21]

Outsourcing border control is not uncommon and developed countries are increasingly relying on less developed, transit states for border control.[22] However, the relationship between the United States and Mexico is distrustful, and should not be equated to similar a structure within the European Union, which has moved beyond using merely economic interests.[23]

Power dynamics and the liberal paradox

But why is Mexico helping the United States given the controversy and criticism? The answer is multifaceted. First, the United States has been the dominant power in the region, if not the world, for years.[24] As such, it typically enjoys a fairly high level of power over other states, as is the case with Mexico. Part of the United States’ strength is its stability, predictability, and involvement in multilateral agreements.[25] The United States’ stability and reliability as the dominant power, combined with the economic growth that Mexico enjoyed under NAFTA meant that it was in Mexico’s best interest to the United States “dirty work.”[26]

Further, Mexico’s economic reliance on its more powerful neighbor makes Mexico more likely to cooperate, even when it is not in full agreement. Of particular importance is the improvement in Mexico’s economy due to NAFTA as well as Mexico’s heavy reliance on remittances. Nearly 12 million Mexican immigrants were living in the United States in 2014.[27] That year, remittances from the United States brought in 24 billion USD, 2% percent of Mexico’s GDP.[28] James Hollifield points out that developing states are reluctant to “provoke a conflict with a receiving state . . . for fear of losing remittances.”[29] Not cooperating with the United States could risk not only Mexico’s economic ties with the United States, but also the ability of Mexico’s citizens to stay in the United States and send back remittances.

This economic reliance requires that Mexico cooperate due to the existence of a “liberal paradox” within the United States.  Hollifield describes the liberal paradox: “the economic logic of liberalism is one of openness, but the political and legal logic is one of closure.”[30] In part, this is because migration poses a risk to a state’s sovereignty.[31] Thus, a migration state, caught in this liberal paradox, is one that opens or closes its borders for the benefit of the state, rather than to benefit the migrant.[32]

This fear over loss of sovereignty was readily apparent during the 2014 migrant crisis, and continues to exist today. The rhetoric since 2014 has been largely anti-immigrant with fears that migrants will accompany job loss or an increase in crime.[33] Therefore, when the number of migrants arriving overwhelmed the United States border, the US looked to Mexico and Mexico was in little position to object.

United States – Mexico Relations Today

The ability of the United States to rely on Mexico for its border security needs may be changing. The election of President Trump has called into question the predictability of the United States. As President Trump has implied on multiple occasions, Mexico can no longer definitively rely on the United States to uphold NAFTA.[34] Additionally, the new administration, rather than offering economic aid to Mexico for southern border security, has called for Mexico to pay for a wall to be built along the United States – Mexico border.[35] Unsurprisingly, Mexico objected to this.[36] The United States has also increased the deportation of immigrants living in the interior of the country, which will likely affect the amount of remittances sent back to Mexico.[37]

This is a sign that the United States may be losing influence and control over the region. Although President Trump has threatened to make NAFTA contingent on Mexico’s immigration enforcement,[38] the United States likely needs NAFTA to remain dominant. Without the stability, predictability, and participation in multilateral agreements such as NAFTA, its less likely the United States can insist that Mexico continue to protect its southern border for the United States. Without the assurance of an economic benefit, Mexico is rethinking its interest in continuing to cooperate with the United States on border security and has begun using migration as a tool.[39] As Mexico’s economic minister stated, without NAFTA “[t]here would be no incentive to continue collaborating on important issues for North American security such as migration issues.”[40]

For now, NAFTA and Mexico’s border security program remain in place. NAFTA may be re-negotiated, which would give the United States the chance to once again solidify its place as the region. However, the continual shifts in the United States’ support for NATO, NAFTA, and the Worth Trade Organization, as well as the generally decreasing stability and predictability of the current administration, demonstrates that the United States can no longer be counted on as the dominant power. One part of ensuring stability is the ability to properly regulate migration.[41] That is, the United States’ stability relies in part on its ability to regulate migration. For Mexico, that means that a somewhat unstable United States is in greater need of regulating migration, which is clear based on President Trump’s call to include immigration in NAFTA. This gives Mexico an opportunity to impact United States’ policy through the creation of a migration state, where it opens or closes its borders based on the how Mexico will benefit from a decrease in power of the United States.

Alison Sheets is a Staff Editor with the Denver Journal of International Law & Policy, and a 1L at the Sturm College of Law.


[1] Trump Says May Tie Mexican Immigration Control to NAFTA, Reuters (last visited April 23, 2018), https://www.reuters.com/article/us-trade-nafta-trump/trump-says-may-tie-mexican-immigration-control-to-nafta-idUSKBN1HU1ZE.

[2] Lorenzo Caliendo and Fernando Parro, Estimates of the Trade and Welfare Effects of NAFTA, 1 The Review of Economic Studies 3 (2015).

[3] Id.

[4] Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies 12 (Univ. of San Diego Ctr. for Iberian and Latin American Studies and Ctr. for Comparative Immigration Studies Working Paper No. 150, 2007),  https://ccis.ucsd.edu/_files/wp150.pdf.

[5] The Wall Around the West: State Borders and Immigration Controls in North America and Europe 62 (Peter Andreas and Timothy Synder, eds., 2000).

[6] Raquel Aldana, Won Kidane, Beth Lyon, and Karla McKanders, Global Issues in Migration Law 103 (2013).

[7]  U.S. Customs and Border Protection, Southwest Border Unaccompanied Alien Children FY 2014 (2015).

[8]  Id.

[9] Id.

[10] Tom Dart, Child migrants at Texas border: an immigration crisis that’s hardly new, The Guardian (July 9, 2014), https://www.theguardian.com/world/2014/jul/09/us-immigration-undocumented-children-texas.

[11] Id.

[12] Aaron Korthuis, Outsourcing Refoulement: The United States and the Central American Refugee Crisis, Yale Journal of International Law (2016).

[13] Mexico’s Other Border Security, Migration, and the Humanitarian Crisis at the Line with Central America, The Washington Office on Latin America (2014).

[14] Id.

[15] Border Statistics Update: Mexico’s Increased Enforcement Matches U.S. Border Efforts, The Washington Office on Latin America (May 20, 2015), https://www.wola.org/2(015/05/border-statistics-update-mexicos-increased-enforcement-matches-us-border-efforts/.

[16] Clay Boggs, Mexico’s Southern Border Plan: More Deportations and Widespread Human Rights Violations, The Washington Office on Latin America (Mar. 19, 2015).

[17] Id.

[18] Carrie Kahn, Mexican Crackdown Slows Central American Immigration To U.S., NPR (Sept. 12, 2014), https://www.npr.org/sections/parallels/2014/09/12/347747148/mexican-crackdown-slows-central-american-immigration-to-u-s.

[19] Id.

[20] John Holman, Mexico’s ‘invisible wall’, a Migrant Double Standard, Aljazeera (Feb. 16, 2107), https://www.aljazeera.com/indepth/features/2017/02/mexico-invisible-wall-migrant-double-standard-170214213612822.html.

[21] Boggs, supra note 16.

[22] The Wall Around the West: State Borders and Immigration Controls in North America and Europe 63 (Peter Andreas and Timothy Synder, eds. 2000).

[23] Id.

[24] G. John Ikenberry, Getting hegemony right, The National Interest 18 (2001).

[25] Id. at 20-21.

[26] Kahn, supra note 19.

[27]Jie Zong and Jeanna Batalova, Jeanna, Mexican Immigrants in the United States, Migration Policy Institute (Mar. 17, 2016), https://www.migrationpolicy.org/article/mexican-immigrants-united-states.

[28] Id.

[29] James F. Hollifield, The Emerging Migration State, 38 The International Migration

Review 885, 893 (2004).

[30] Id. at 887.

[31] Id.

[32] See Id. at 893.

[33] Emily Stewart, Trump campaign ad says Democrats are “complicit” in murders committed by undocumented immigrants, Vox (Jan. 21, 2018), https://www.vox.com/platform/amp/policy-and-politics/2018/1/21/16916480/trump-complicit-ad.

[34] Jessica Trisko Darden, A NAFTA renegotiation may have some unexpected consequences on US immigration and border security, Business Insider (May 5, 2017), http://www.businessinsider.com/nafta-renegotiation-trump-mexico-implications-2017-5?r=UK&IR=T.

[35] Donald Trump’s Mexico wall: Who is going to pay for it?, BBC News (Feb. 6, 2017), http://www.bbc.com/news/world-us-canada-37243269.

[36] Mexican opposition candidates slam Trump wall ahead of campaign, Reuters (Feb. 18, 2018), https://www.reuters.com/article/us-mexico-election/mexican-opposition-candidates-slam-trump-wall-ahead-of-campaign-idUSKCN1G2061.

[37] Miriam Valverde, Have deportations increased under Donald Trump? Here’s what the data shows, Politifact (Dec. 19, 2017), http://www.politifact.com/truth-o-meter/article/2017/dec/19/have-deportations-increased-under-donald-trump-her/.

[38] Trump Says May Tie Mexican Immigration Control to NAFTA, Reuters (last visited April 23, 2018), https://www.reuters.com/article/us-trade-nafta-trump/trump-says-may-tie-mexican-immigration-control-to-nafta-idUSKBN1HU1ZE

[39] Darden, supra note 35.

[40] Julian Borger and David Argen, Mexico will not accept Trump’s immigration plans, says foreign minister, The Guardian (Feb. 22, 2017), https://www.theguardian.com/world/2017/feb/22/mexico-trump-immigration-foreign-minister-luis-videgaray.

[41] Hollifield, supra note 30 at 903.

Posted in Alison Sheets, DJILP Online, DJILP Staff, Featured ArticlesComments (0)

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

Mistaken as Terrorists: How innocent Syrian refugees are prevented from resettling in the US

The Syrian refugee crisis is one of the most horrific this generation has ever seen.

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

The United States, which has a long history of welcoming refugees into its borders and giving protection to those fleeing from persecution, has yet to put a significant resettlement initiative for Syrian refugees into motion. The United States has resettled 546 Syrian refugees since the crisis began.  UNHCR, on the other hand, hopes to resettle 50,000 Syrian refugees in 2015, and another 50,000 Syrian refugees in 2016 in permanent resettlement placements around the world.  The lack of action on the part of the United States is due, in part, to its strict immigration laws in regards to terrorism.  The Terrorism Related Inadmissibility Grounds (“TRIG”) sweep broadly over many individuals who are not dangerous in any way.  The TRIG statutory language, codified in the Immigration and Nationality Act (“INA”) prevents many innocent Syrians from finding a stable and safe living situation.

There are two areas of the INA that stand as a significant obstacle for many Syrian refugees wanting to resettle in the United States. First is the definition of “terrorist activity,” defined in INA §212(a)(3)(B)(iii) as “any activity that is unlawful under the laws of the place where it is committed.” Because the law defines any military action against a regime as “terrorist activity,” individuals who were once seen as friends of the Untied States are now labeled as terrorists. For Syrians, opposition fighters are labeled as terrorists and are excluded from entering the United States, even though the United States government supports them. In contrast, those who were in Assad’s army, which the United States opposes for its violations of international law, would still be admissible, because the statute only applies to non-state actors.

Second, many Syrians may be found inadmissible due to their insignificant material support to a Tier I or Tier II terrorist organization (designated terrorist organizations by the Secretary of State and Attorney General, respectively). In INA §212(a)(3)(B)(iv)(VI), the giving of material support to a terrorist organization labeled as “terrorist activity.”  DHS, in past oral arguments before the BIA, has stated that they would consider even the most minimal support given to a terrorist organization, like a glass of water or five cents, as material support.  Syrians deemed inadmissible due to their material support of a terrorist organization include a family that sheltered an opposition fighter in their home when their town was being bombed, a young boy who joined the opposition fighters for a short time when his father was killed, eventually leaving the war to join his mother and siblings, and even the man who sold falafel sandwiches to opposition fighters in a war-zone.

In order for the United States to continue its longstanding tradition of welcoming people fleeing from persecution, the TRIG laws need to be changed.  DHS needs to use its discretionary authority and expand the available TRIG waivers. Civilians living in Syria were subject to innocent contact with Tier I and Tier II terrorist organizations on a regular basis; this is the nature of living in a conflict zone.  The armed group that took control over the territory they lived in became their customers in their stores—innocent, insignificant material support is unavoidable.  Additionally, exceptions should be given on a case-by-case basis to former combatants who pass a security background check and are not barred for any other statutory reason, including those who were children at the time they were combatants, or to individuals who did not participate in targeting civilians.

Kitty Robinson is a 2L at the University of Denver and is the incoming Candidacy Editor for the Denver Journal of International Law and Policy  

Posted in DJILP Online, DJILP Staff, Featured Articles, Kitty RobinsonComments (0)

Julia Preston reporting on the immigration crisis at the U.S. border with Mexico.

Critical Analysis: Mexican and Central American Children Seeking Refuge in U.S.

November 1, 2014

The United States has caught more than 68,000 children crossing the United States border—primarily via the Rio Grande Valley into Texas—in the past year, doubling last year’s number.
  The majority of children are coming from Honduras, Guatemala, and El Salvador.  In fact, less than a quarter of the children caught are from Mexico.  The increase of children from these Central American countries began in 2012.  Violence, family reunification, and poverty are the main reason for this surge.  For those children from Honduras, there is an especially strong correlation between the increase in children caught at the border with an increase in homicides.

Due to the William Wilberforce Trafficking Victims Protection Act of 2008 (“TVPRA”), children from Central America have a longer before their deportation hearing than those children from contiguous countries (i.e. Canada and Mexico).  Unlike children from Mexico, a Border Patrol officer does not have the authority to make an on the spot determination as to whether a Central American child can stay in the country.

Julia Preston reporting on the immigration crisis at the U.S. border with Mexico.

Julia Preston has been reporting on the immigration crisis at the United States’ border with Mexico where Central American migrants are crossing. Photo and Caption Credit: Todd Heisler/The New York Times, http://www.nytimes.com/times-insider/2014/08/01/witnessing-the-border-crisis/?_r=1

The unequal treatment of children from Mexico versus children from Central America has draw criticism from both sides of the political isle leading to the President to take a strong stance on combatting this influx. In July, the President Obama White House urged an increase in funds—to the tune of just over $2 billion—to strengthen border security, expedite immigration case resolution, and deal directly with the humanitarian issues occurring in the countries of origin.  As with just about every policy and budgetary recommendation this White House has made, this recommendation was met with hostility both on the part of liberals and conservatives.

Liberals, on one hand, believe that the White House’s proposal upsets due process leaving thousands of children vulnerable.  Conservatives, on the other hand, believe this planned action is too little too late.  Regardless of your political stance on the issue, the larger underlying challenge is the United States’ role in this crisis and the potential responsibility it owes to mitigating its effect.

Honduras’s President Juan Orlando Hernandez has been quite vocal as to the United States’ hand in the immigration crisis.  The demand for drugs stemming from the United States has lead to an increase in violence and a decrease in roads for opportunity.  The illicit demand for drugs in the United States, no matter how frowned upon by the government and many citizens, has, in the opinion of many, has created a duty to address the humanitarian impacts.

The United States has the unique challenge of striking a balance between providing appropriate due process to those children who have made the journey to the United States, working with the immigrant’s countries of origin to address the underlying humanitarian issues, and corresponding the rate of deportation with the progress made in addressing humanitarian issues.  Perhaps easier said than done.

Alicia Guber is a 3L at the University of Denver Sturm College of Law and the Editor in Chief of the Denver Journal of International Law and Policy.

Posted in Alicia Guber, DJILP Online, DJILP Staff, Featured ArticlesComments (0)

Graph of Unaccompanied Alien Children by Location of Origin 2014

Critical Analysis: The U.S. Immigration “Humanitarian Crisis” at Its Source

Here in the United States, there has been a recent uptick in news about the “humanitarian crisis” stemming from children migrating across Central America and coming across the United States southern border. The news reports are less frequent now than they were a few months ago, but over the summer months headlines of the “humanitarian crisis” flooded news services. On June 30, 2014, President Obama released a statement recognizing the “humanitarian crisis” that was stemming from the danger and violence in Central America resulting in the influx of children and individuals crossing the border. But what exactly is causing this humanitarian crisis? The current crisis is more than the current influx in border crossings, decades old problems facing youth in Central America is making the international issues of Central America feel very real here at home. See Maria Baldini-Potermin, A Step Forward and Back: The Border Crisis and Possible Solutions Focused on Fundamental Fairness and Basic Human Rights, 91 Interpreter Releases 1401, 1401-02 (2014).

In June 2014, Vice President Joseph Biden traveled to Guatemala to speak with leaders from Guatemala, El Salvador, Honduras, and Mexico to discuss the shared responsibility of the region. Vice President Biden was also trying to reiterate the current administration’s stance on the futility of trying to obtain legal status without a proper visa. Minors from Guatemala, El Salvador, and Honduras make up three quarters of the total numbers of migrants coming into the United States. Between last October and August, 63,000 undocumented children were detained at the southern border. Guatemala, El Salvador, Honduras, and Mexico, while addressing the situations within their own nations have also pushed back on the United State’s policy, seeking better conditions for the detained children in the United States and criticizing American drug consumption, which makes their nations the staging grounds for trafficking.

Graph of Unaccompanied Alien Children by Location of Origin 2014

Unaccompanied Alien Children (UACs) by Location of Origin for CY 2014: Honduras, El Salvador, and Guatemala
Image Source: pewresearch.org

How does the United States’ deportation policy play into the “shared responsibility” idea? According to the home nations, it does not play out well. Children who are deported back to their home nation face the same violence they were fleeing and if they were trying to escape gang activity, it is often futile. The cycle of violence continues. The Americas have the highest rates of homicides of the UN regional breakdowns, with Central America having the highest rate within the region. There are two points of concentration that generate this violence: gangs and organized crime.

According to a study that Elizabeth Kennedy, a Fulbright Scholar, is conducting in El Salvador, children are migrating to the United States because of fear of gang violence. Currently, over 600 children have been interviewed for the study; these interviews are comprised of basic questions, questions about the child’s neighborhood and gang presence, and finally, why the child wants to go to the United States. Sixty percent of the children have listed gangs or violence as the reason that they want to migrate. After gang violence, the next highest-ranking reason for wanting to migrate to the United States is family reunification. Family reunification makes up 35 percent of the children interviewed, which is interesting because of how low that number is when considering that over 90 percent of these children have a family member in the United States, and over half have a parent in the United States. The numbers that Ms. Kennedy has uncovered around gang violence are particularly striking: 145 of 322 children live in a neighborhood with a gang present, 109 have been directly threatened, 14 have had a family member murdered by the gang, and 32 are so afraid they never leave their homes day or night.

There are common features between Guatemala, El Salvador, and Honduras that are pushing children, despite the danger, to attempt to migrate across Mexico to the United States. These reasons include poverty, institutional challenges (particularly in crime control), political instability, migration, and destruction of the social fabric. In El Salvador, there has been an active attempt to mitigate the gang violence and two years ago, there was truce designed to protect police and civilians. While initial results of the truce dropped murder rates by 40 percent, killings have since doubled. However, recently five gangs have approached the government wanting to reopen negotiations, but the President is hesitant to follow the gangs’ program. Mexico, meanwhile, has aggressively begun to sweep migrants off “La Bestia,” creating roadway checkpoints, and raiding safe houses along the voyage north. And not surprisingly, Honduras is facing monumental challenges in addresses migration problems when statistics show that 64.5 percent of Hondurans lived in poverty, economic growth is 2.2 percent and San Pedro Sula, is the world’s “murder capital.

Commentators suggest that the real way to solve the humanitarian crisis is to focus on the poverty, violence, and suppression that are preventing the people in these countries from maintaining a healthy livelihood, and to make humanitarian visas to the United States more accessible. It certainly does seem that just trying to stop transport via “La Bestia” is not going to change migration trends or protect the lives of those who are constantly under threat of gang violence. The only way to solve this humanitarian crisis is going to the source.

Alison Haugen is a 2L law student at the University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.



Posted in Alison Haugen, DJILP Online, DJILP Staff, Featured ArticlesComments (0)


Critical Analysis: Accusations Against Australia’s Border Protection Policies

Over the past month, Australian navy and customs officers have been accused of towing or turning back boats carrying Indonesian asylum-seekers. Australian Prime Minister, Tony Abbott, has reported little about Australia’s asylum-seeker policies, fearing that exposing such information may create a tactical advantage in a wartime scenario. The United Nations High Commissioner for Refugees (UNHCR) has previously expressed concerns over how Australian policies of border protection might violate international responsibilities.  These new reports of towing and turning back Indonesian asylum-seekers now raises questions surrounding Australia’s adherence to international conventions and laws protecting refugees.

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Prime Minister Tony Abbott fails to open up about the border protection policies in Australia. Image Source: Getty Images/AFP

Australia is just one of 144 states to have ratified the 1951 Convention relating to the Status of Refugees (Convention) and the 1967 Protocol amendment. In January of 1951, the United Nations General Assembly created the Office of the UNHCR to provide “international protection” to refugees.  The Convention became effective in 1954 and played an important role in the UNHCR’s international refugee policies and protections.

The Convention establishes several obligations that signatory countries must follow in order to provide appropriate protection and potential solutions for refugees. One such obligation is “non-refoulement,” a concept stating that “no refugee should be returned in any manner whatsoever to any country where he or she would be at risk of persecution.” Under this principle, countries party to this Convention should not return refugees to any country where they may face persecution, whether it is their home country or not.  Furthermore, the Convention provides refugees an exemption from penalties for illegal immigration and provides them with protection from expulsion from the country.

While Australian government officials have remained quiet on border protection policies, these reports and accusations of towing and turning back boats questions whether the Australian government is adhering to its obligations under the Convention.  Prime Minister Abbott and his staff maintain silence surrounding the details and/or accuracies of these accusations.  In response to questions surrounding the nation’s border control policies, Abbott stated “I’m pleased to say it is now several weeks since we’ve had a boat, and the less we talk about operational details on the water the better when it comes to stopping the boats.”

In addition to reports of towing and turning back boats, the Australian government has also been accused of purchasing lifeboats to be used in ushering asylum-seekers back to Indonesia.  Australian Operation Sovereign Borders commander Angus Campbell has admitted to the purchase of lifeboats, but mimicking Prime Minister Abbott’s policy of secrecy over government operations, has not stated the intended purpose for the devices.

Even Indonesian officials are angered by Prime Minister Abbott’s failure to open up about the specifics of the country’s border protection policies. Although Abbott has denied some of these allegations, he has failed to make reports on the details of the Australian immigration control policies.  Mark Dreyfus, active immigration spokesman for the Australian Labor Party, stated, “I’m not going to speculate because it’s for the government to explain the circumstances. It’s for the government to reassure Australians that everything that’s been done does comply with international law, that everything that’s been done complies with our obligations under the refugees convention.” Until the Australian government reveals the truth about their border protection operations, the rest of the world will continue to question the legality of their actions. 

Stacy Harper is a 3L at Denver Law and Marketing Editor for the Denver Journal of International Law and Policy.

Posted in DJILP Online, DJILP Staff, Featured Articles, Stacy HarperComments (0)


Critical Analysis: Dominican Republic’s Constitutional Ruling and Status of Immigrants

On September 23, the Dominican Republic Constitutional Court made an interpretative ruling that shook the Hispaniola Island. A child born on Dominican soil without one parent of Dominican blood or foreign parents with legal residency is not a Dominican citizen. In 2004, the court held that “in transit” includes all persons without legal residency. Thus, parents considered “in transit” or illegal immigrants are not Dominican citizens, and the children born from these parents, dating back to 1929, cannot have Dominican citizenship.


Haitians in a market in the Dominican capital Santo Domingo (Melanie Stetson Freeman/Getty Images)

The ruling effects all immigrants in the Dominican Republic, not just Haitians. However, at least eighty percent of Dominican immigrants are Haitian. It is no secret that Haitians are the predominate immigrants in the Dominican, which leads many spectators to believe the Dominican court targeted Haitians: a flashback to 1937, when Dictator Rafael Trujillo attempted to eliminate Haitians from the Dominican. Several reporters cite over 200,000 Haitians are stateless due to the ruling. Conversely, based on the numbers provided by the United States Dominican Embassy via the national civil registry, less than 20,000 Haitians are effected by the ruling; furthermore, they will not be stateless. A person is only stateless if no country will recognize and grant citizenship. Haiti’s constitution has been interpreted to grant citizenship to those of Haitian blood regardless of where the person was born. Thus, Haitian immigrants will not be stateless.

Even though the ruling cannot be appealed, the Dominican government plans to establish a naturalization law. Moreover, Dominican President Danilo Medina announced a humanitarian approach will be applied, allowing eighteen months for all undocumented foreigners to register and prove eligibility for residency to avoid deportation.

Was the Dominican court wrong in its Constitutional ruling? Perhaps the ruling was more extreme than necessary, but a step to control immigration is necessary.

Rarely is birth on any country’s soil alone enough to gain citizenship. The Dominican is no different. If an immigrant does not speak Spanish, work, own property or a home, the Dominican is less likely to grant citizenship to the immigrant. Citizenship is business. No business wants to employ or have clients that do not benefit the business. When a country has a say, the country wants the immigrants that benefit the country. A country, small like the Dominican, cannot progress if illegal immigrants that do not contribute to the economy are allowed citizenship.

Is it right to ostracize a third-world country for a ruling, which if ruled by a leading country, would receive little backlash? Perhaps, this is how the world’s checks and balances function: never let a lower country make a move reserved for higher countries.

Due to the inaccuracies in information and range of predictions, it is clear that the Dominican government needs to release a statement—to explain the court’s ruling and its effects. More likely than not the government is at a loss itself and cannot offer clarity. However, this is a time for the government to stand strong and make executive decisions. Is the ruling stripping immigrants of citizenship, if the immigrant was granted citizenship prior to the ruling? Is the ruling only effecting those who are not and have never been citizens—regardless of the individuals assumed citizenship? What actions can an immigrant take to gain citizenship or avoid deportation? Will a naturalization law be implemented before deportation occurs? The Dominican government cannot afford to remain silent much longer, it needs to stand up.

Cheyenne Moore is a 1L at the University of Denver and a Staff Editor on the Denver Journal of International Law and Policy. 

Posted in Cheyenne Moore, DJILP Online, DJILP Staff, Featured ArticlesComments (0)


The U.S. Budget Gridlock: An International Perspective

The congressional gridlock over U.S. government funding and the debt limit during the month of October has left the rest of the world both bewildered and alarmed, particularly in Europe where the Euro countries have yet to fully recover from the their own financial crisis triggered by the confluence of the lingering consequences of the U.S. financial collapse of 2007-2008, and the chickens of their own profligate deficit spending over past decades finally coming home to roost. Most alarming to these countries is not so much the gridlock itself—most assume that the deadlock will be resolved—but rather the spectacle of political brinksmanship in which congressional parties seek to gain political gain by threatening each other with financial Armageddon, not just in the U.S., but worldwide,  if the other side doesn’t back down.

Thus, conservatives, after giving up proposals to defund Obamacare, have been blamed for demanding, as a price of passing a government funding bill, that individuals be given the same one year grace period under the Obamacare mandate that Big Business has already received, and demanding that members of Congress be required to live by the same Obamacare rules as those imposed on the rest of the country.  Meanwhile, those on the left, particular those who control the U.S. Senate, have been blamed for denouncing all such proposals as “blackmail”, an attempt to hold the country “hostage”, and so outrageous as to prompt the President both to refuse to negotiate and to predict a stock market meltdown and economic catastrophe if the government is not fully funded and the debt not raised because of such demands.

the fed

The Federal Reserve Bank

While the stock market has mostly shrugged off the government shutdown—especially after the overhyped predictions of catastrophe under the “sequester”, which resulted in only a rather modest decline in the increase in government spending—the threat of default of U.S. government debt does carry significant economic risks. Indeed, the very threat of such a default has already caused the cost of insuring U.S. debt to rise dramatically. More alarmingly, the use of U.S. debt around the world as collateral for international obligations means that a default, especially if extended, could indeed threaten international economic collapse.

In order to take this risk out of the equation and deprive any party of using it as a threat in the game of economic brinksmanship, the U.S. House last passed the McClintock—Toomey bill, which would have guaranteed U.S. debt by requiring that U.S. debt be paid from incoming tax revenues even during a period of shutdown. This proposal, which would have greatly alleviated international concerns over the possibility of U.S. default, was subsequently denounced in the Senate Majority leader as the “Pay China First” bill, where it subsequently died. (This despite the fact that China hold only about 7% of U.S. debt, while Americans hold about two thirds).

So, how, might an ignorant but intelligent man from Mars might ask, did we ever get to this point?

The answer may be traced back in large measure to the Great American Housing Bubble and subsequent collapse in 2007-2008.*  In 2008 alone, American consumers suffered a catastrophic loss of sixteen trillion dollars in purchasing power. Much of that loss came in the form of six trillion dollars in lost home equity when the housing bubble collapsed. In the name of expanding home ownership, the bubble had been created by a deliberate government policy of encouraging banks to lend money to unqualified buyers with low or no money down and low interest rates. Banks were only too eager to comply since they could unload most of their loans on taxpayers via Freddie and Fannie, or on hapless investors through the government promoted vehicle of “securitization”, by which loans are sliced and diced and sold to unsuspecting investors worldwide.

At the height of the bubble, consumers became accustomed to using the equity in their homes as personal piggy banks, creating an illusion of wealth that could be used to buy vacations, cars, second homes, and other consumer goods. Thus when that equity was destroyed, it had much the same effect as bank failures had in the depths of the Great Depression. The loss of such purchasing power reduced the demand for goods and services, resulting in unemployment, bankruptcies, stock market collapse, and extreme financial distress.

The first chapters of Econ 101 explain that there are two ways to replenish such catastrophic losses in purchasing power caused by either bank failures or the collapse of a housing or stock market bubble.  The first is through monetary policy by the simple act of printing more money. The second is through fiscal policy, reducing taxes and thereby increasing the take home pay of consumers and leaving them with increased purchasing power to demand goods and services and thereby put people to work.


Large, expensive piggy banks

The latter policy is the much preferred method of replenishing purchasing power because its application can be spread more broadly across the entire economy, whereas monetary policy tends to have a disproportionate effect on more narrow sectors of the economy such as housing or the stock market in ways that risk the creation of yet another bubble cycle in those sectors. Indeed, the current extreme application of monetary policy by the Fed—reducing short term interest rates to absolute zero and printing money to buy long term securities—is already showing signs of creating yet another such bubble cycle in the housing and stock market.

Unfortunately, the reality of America’s political system is such that fiscal policy can rarely be employed as a method of replenishing lost purchasing power. Over the past several decades, politicians have won votes by relieving almost half of all Americans of the duty of paying any federal income taxes at all. This had resulted in an economy in 2013 in which the top 20% of Americans now pay 71.8% of all taxes, and the 1% pays almost one third of all U.S. federal income taxes. This in turn has created a voter population in which 47% of all Americans have no stake in their government other than that of receiving government benefits. Like the populace of ancient Rome, whose support could be won by the promise of bread and circuses without any concomitant duty to contribute, many U.S. voters today see no benefit to themselves if taxes are reduced, and thus have no reason to vote for politicians who propose to reduce taxes as a means of replenishing purchasing power in the economy as a whole.

Thus any proposal to reduce income taxes is likely to be denounced as “tax breaks for the rich”—the” rich” apparently being defined as anyone among the hapless 53% of Americans who are asked to bear the entire federal income tax burden.

But while politicians are reluctant to reduce the tax contributions imposed on those who pay taxes, they are often much more enthusiastic about employing the second prong of classic Keynesian fiscal policy—namely spending, which has the political advantage of catering to those who either pay no taxes or who receive more in government benefits than they pay in taxes. The politicians who endorse such spending, rather than tax-reduction policies, often claim that they are only employing tried and true “Keynesian” policies of replenishing purchasing power by financing vast  government programs, thereby introducing money into the economy in the same way as if they had reduced taxes. They conveniently forget that Keynes recognized that purchasing power could be replenished by either increasing spending or reducing taxes.

The question therefore is which of the two prongs of fiscal policy—reducing taxes or increasing spending—is more likely to revive a moribund or unemployed economy.

Reducing taxes allows taxpayers to keep more of their earnings, and spend it on such consumer items as food, lodging, gas, and refrigerators. Those who provide such goods and services are soon employed. Increased spending, on the other hand, as if so often does when politicians get to spend other people’s money, is more likely to be spent on more speculative ventures that most people, when spending their own money, would never dream of spending it on—think SolyndraFisker, bailing out inefficient companies or cities being strangled and bankrupted by unrealistic defined contribution pension plans, unsustainable  entitlement programs which blithely ignore the demographic changes of an aging population,  or even fancy cars for millionaires.

mitt romney and solyndra

Presidential Candidate Mitt Romney publicized Solyndra which was funded under a program during the Bush administration (Justin Sullivan/Getty Images)

Not surprisingly, such spending has had far less effect on reducing unemployment than its sponsors hoped for. Indeed, since the government launched its most extravagant spending programs in the aftermath of the housing collapse in 2007-2008, the labor participation rate has actually decreased from 64% to 55.8%, as millions give up hopes of ever finding a job—a disastrous result only exacerbated by government policies of drastically reducing the wages of poverty-stricken minorities and legal immigrants by–at the instigation of Big Business seeking higher profits– the import of cheap foreign labor encouraged by lax immigration law enforcement.

With the option of sound fiscal policy off the table, or used counter-productively, virtually the entire burden for replenishing purchasing power has fallen on the unelected Federal Reserve and reliance on its vast monetary powers. Taking a cue from Chapter One of Econ 101, the Fed has flooded the economy with newly printed money in a process known as “quantitative easing” (i.e. buying long term government bonds that no one else in their right mind would even consider buying) in hopes of reducing interest rates to such a low level that businesses will want to borrow money cheaply and use it to expand and hire more workers. Not surprisingly, the billions so created out of thin air have thus far had a depressingly modest effect on employment, though it has greatly benefitted the rich who own the biggest houses (and thus get the biggest tax deductions), and own the most stocks and bonds, not to mention inducing the government to go even deeper in debt since it need pay almost nothing on the money it borrows in the short term, and very little in the long term. (If one wonders who really believes that long term interest rates will not increase in the next thirty years and is thus willing to risk substantial principle by buying a 30 year bond, the answer is that virtually no rational investor is willing to do that except the government itself in the form of the Fed).

The reason for the lack of success of quantitative easing can be found in the later chapters of Econ 101 which describe Keynes’s “liquidity trap”, and also explains why low long term interest rates may not spur business expansion, and may even slow it and exacerbate unemployment: investors who buy a company’s long term bonds risk a catastrophic losses of principle when super-low long term interest rates inevitably rise. They are far more likely to wait until long term rates do rise before buying these long-term bonds, thus depriving those companies of capital when they are most needed—namely now, when the economy is struggling, and employment participation rates are at historic lows.

In the aftermath of the housing bubble collapse in 2007-2008, and the subsequent destruction of six trillion dollars in consumer purchasing power, the government had a once in a lifetime opportunity to replenish the money supply by reducing taxes without risking inflation, and putting new purchasing power into the hands of consumers to buy consumer goods and thus stimulate employment.  Instead it has squandered that opportunity by instead printing money by the trillions, and reducing interest rates to the point where potential investors risk catastrophic loss of capital when they invest in business expansion. The tragedy is that the longer the present addictive low interest policies are pursued, the more investors will, out of desperation, risk that catastrophic loss and contribute to yet another cycle of stock market and housing bubble and burst.

We tolerate politicians whose time horizons do not extend beyond the next election, because we understand the realities of politics, elections, and demagoguery. It is also tempting to tolerate members of the Fed, upon whom has been cast virtually the entire burden of saving the economy in the absence of sound fiscal policy by the politicians. The pressures of that burden no doubt accounts for such catastrophic decisions as the one made by Fed Chairman Alan Greenspan to fuel the housing bubble with artificially low interest rates, and Chairman Bernanke’s later failure to discern the dangers of such a bubble as when he said, on May 17, 2007:” (W)e believe the effect of the troubles in the subprime market will be limited…Importantly, we see no serious broader spillover to bank or thrift institutions from the problems in the subprime markets”.)

But without resisting these temptations, the lesson of the final chapter of Econ 101 is that we have yet another cycle of bubble, burst and economic catastrophe to look forward to, including another round of international economic distress.


Robert Hardaway is Professor of Law at the University Of Denver College Of Law, and the author of twenty two published books on law and public policy, including “The Great American Housing Bubble” (ABC-CLIO Publishers, 2012)



See Hardaway, The Great American Housing Bubble: The Road to Collapse (2012).

Posted in DJILP Online, Featured Articles, Robert HardawayComments (3)

Coping with climate change will be one of the most significant challenges the global community will face in the coming years. (The ICJ Project)

Critical Analysis: Environmental Threats to Human Security and International Law’s Response

Coping with climate change will be one of the most significant challenges the global community will face in the coming years. (The ICJ Project)

Coping with climate change will be one of the most significant challenges the global community will face in the coming years. (The ICJ Project)

International Law Weekend-West was held the weekend of February 2nd at the University of Denver Sturm College of Law.  The conference addressed a number of issues that should be on the forefront of the minds of all international lawyers who seek to address threats to human security.  The first panel’s topic (“Environmental Threats to Human Security and International Law’s Response”) dealt with a contentious issue not often associated with threats to human security: climate change.  This panel had three speakers; two focused specifically on the effect deforestation will have on human security, and the third speaker broadened the perspective to address how climate change will impact society as a whole.

The first speaker, Professor Richard Finkmoore of California Western School of Law, explained that deforestation must be stopped because (1) it will exponentially increase the effect of total climate change on the human race through increased greenhouse gas (GHG) emissions, and (2) it will reduce the world’s capability to compensate for the increase in the GHG emissions.  Deforestation not only affects the globe through an increase in the amount of carbon released through burning, but also because forests are among the world’s best carbon sinks and carbon reservoirs.  According to Professor Finkmoore, forests absorb one-third of all GHG emissions that come from the fossil fuel sector; it is estimated that the forests store twice as much GHG as is currently in the atmosphere.  Therefore, if the forests are burned not only will the globe be less able to absorb the carbon, but a vast amount of additional carbon emissions will occur, thereby accelerating the rate of climate change.  Consequently, Professor Finkmoore argues, the focus should shift from reducing the world’s dependence on fossil fuels to ensuring that the forests all over the world are not burned down.

Given the strong effect deforestation will have on climate change, the next logical question is what the international legal community is doing to address the issue.  The second panelist, Professor Annecoos Wiersema of the University of Denver, addressed one of the legal initiatives proposed to address deforestation.  This international initiative is called RED+, or the  Reducing Emission from Deforestation and Degradation and the Role of Conservation Sustainable Management of Forests and Enhancement of Forest Carbon Sinks.  RED+ resulted from discussions that began when Costa Rica and Papua New Guinea raised the idea as a suggestion to reduce climate change and protect their forests.  However, despite the promising name of RED+ there is still much to be done before it can actually be implemented.  The primary drawback to RED+ is that it is a very comprehensive and technical initiative, which means development is difficult and implementation will take a long time.  Current RED+ discussions are focused on how RED+ should actually be implemented, with the two primary options being either through an international regulatory framework or through national volunteer efforts.  Consequently, the legal framework to address deforestation and the implementation of RED+ is still in the beginning stages.

Given the uncertainty of RED+ implementation, the last speaker, Dr. Anita Halvorssen of the University of Denver, broadened the scope of the issue to address the impacts climate change will have on human security, specifically focusing on human security risks due to migration from fast and slow onset climate changes.  Under current refugee laws, people who immigrate are not granted refugee status unless they fled their home countries in response to specific fears of persecution.  Immigration as a result of climate change is not sufficient to receive refugee status.  Consequently no legal framework exists to address the issue of human security and the consequences of migration as a result of climate change.  Therefore, Dr. Halvorssen argued, the laws need to be modified or a new legal framework must be developed to address this emerging group of migrants who lack legal protection.

The panel discussion stressed the need for greater understanding of the relationship between human security and climate change.  These fields of law are becoming ever more important as the climate continues to change, and international lawyers would be wise to take an increased interest in these issues and the means to address them.

Katelin Knox is a 2L and a staff editor on the Denver Journal of International Law and Policy.

Posted in DJILP Online, DJILP Staff, Featured Articles, Katelin KnoxComments (1)

University of Denver Sturm College of Law