S1E3: Rights at the Border

Episode Summary

The right to seek and enjoy asylum has never been more important than in today’s global landscape. At the same time, countries have never been more committed to finding increasingly creative ways to avoid having to take in refugees. Today on Entitled, we discuss the right to asylum and what our rights are at the border of another country. We know the movement of distressed migrants at sea and nations’ borders is the cause for a lot of human tragedy. Are borders necessary – can we conceive of them in a different way? What duties should nations have to assist these migrants? Joining Professors Claudia Flores and Tom Ginsburg this week are Nina Kerkebane, an Algerian asylee and an entering graduate student at the University of Chicago Harris School of Public Policy; Ayelet Shachar, author of The Birthright Lottery: Citizenship and Global Inequality; Maya Elzinga-Soumah, Senior Legal Associate with the UN High Commissioner for Refugees in Aruba and Curaçao; and Itamar Mann, Director of the Global Legal Action Network and a Senior Lecturer at the University of Haifa Faculty of Law.

Episode Transcription

Claudia Flores:[00:00:00]Nina Kerkebane is an entering Ph.D. student at the University of Chicago School of Public Policy. I know Nina because not long ago, I received this email from her.[00:00:08][8.7]

Nina Kerkebane:[00:00:09]Hello, my name is Nina Kerkebane. I am originally from Algeria, and I was granted asylum here in the U.S. a few years ago. I'm reaching out because Algeria continues to violate human rights and it's getting worse. I was wondering if you had office hours where I can asked some questions about actions that I can take as an expatriate. I want the authorities to be held accountable. Thank you.[00:00:30][21.5]

Claudia Flores:[00:00:31]From time to time, I receive emails from passionate students trying to process the world around them. I don't often, however, receive an email from a student who was the victim of a human rights violation, has escaped it and now wants to do something about it. Since the beginning of a civil war in 1991, Algeria's leadership has imposed repressive tactics on people exercising their right to freedom of expression. Nina left Algeria when she was in university. She just couldn't live under those conditions anymore.[00:01:01][30.0]

Nina Kerkebane:[00:01:02]If there was like a defining moment, it was definitely after I was an exchange student in the United States, I learned that, oh, wait, people have the right to have rights. I never heard of anything like that before because we are very well conditioned where I come from. And so going back to Algeria was very determined. I was like, I will make a change. I will do things to help, but at least with awareness. But I didn't realize that that comes with consequences. And I was sixteen, seventeen. I didn't really realize where I was headed with that. And so I just started stepping out with my words and actions, which made it become very dangerous for me to stay. And that's why I left.[00:01:41][39.0]

Claudia Flores:[00:01:41]So what rights did Nina have when she became an asylum seeker? Where did those rights come from? Who enforces them? These are hotly debated questions. And although we do have some concrete answers When it comes to rights at the border, countries often find ways to slip through every loophole they can find.[00:01:57][16.3]

Tom Ginsburg:[00:02:01]I'm Tom Ginsburg.[00:02:02][0.5]

Claudia Flores:[00:02:02]And I'm Claudia Flores.[00:02:03][0.8]

Tom Ginsburg:[00:02:04]And this is Entitled, a podcast about why rights matter and what's the matter with rights. [00:02:09][5.1]

Claudia Flores:[00:02:10]Today, what are our rights at the border of another country? So, Tom, before we start talking about asylum specifically, let's talk about the umbrella it falls under, migration. There's no right to migrate, is there?[00:02:28][17.8]

Tom Ginsburg:[00:02:28]I mean, there's a right to freedom of movement under the Universal Declaration of Human Rights. And there's also a generally accepted right to leave a country. But there's no right that says that another country has to take you in. Now, there's one big exception, and that's a group of people that we call refugees. These are people who, because of their membership in a particular social group, have what's called a well-founded fear that if they were to return to their country, they'd be at risk of serious harm, like torture or imprisonment.[00:02:56][27.3]

Claudia Flores:[00:02:56]So this category of people that we're talking about is a lot narrower than you might think. It does not, for example, include people who are too poor to survive in their own countries. It doesn't include people who are victims of climate disasters, famines, hurricanes. A country might choose to assist those people and sometimes they do. But there's no requirement they don't have to.[00:03:17][20.6]

Tom Ginsburg:[00:03:17]Most rights relate to the relationship between a government and the citizens of that government or sometimes between people and other people. But the right to seek asylum and the rights of refugees, these are really different because what they really concern is the right of a person in relation to a state that is not their own.[00:03:34][16.9]

Claudia Flores:[00:03:35]Yeah, the dynamic where the state has an obligation to citizens of another state almost always spells trouble because states, by design, are really just responsive to their own people, rarely to people of other states.[00:03:48][12.6]

Tom Ginsburg:[00:03:48]There's a sense that it's the right thing to do to help someone in need who has really no other options. But in practice, the right to seek asylum has never been weaker.

News Clip: For years now, Australia has faced a barrage of criticism over its treatment of refugees and asylum seekers. 

Tom Ginsburg: From 2001 through about 2019, Australia's conservative government set up a detention center for refugees and asylum seekers in Nauru, the small country not too far from Australia. [00:04:18][29.7]

News ClipItamar Mann:[00:04:19] From now on,any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.[00:04:23][4.9]

Tom Ginsburg:[00:04:24]Law is a tricky thing. The idea was to keep the refugees from reaching Australian soil. The simple act of touching the land would actually give them rights under domestic law. But if they never technically touched the country, those rights wouldn't apply.[00:04:39][15.1]

Claudia Flores:[00:04:40]And here in the United States, under our recent administration, the government was doing all kinds of things to reduce the number of refugees able to seek asylum in the United States.[00:04:50][9.7]

Donald Trump:[00:04:51]The United States will not be a migrant camp and it will not be a refugee holding facility. It won't be.[00:05:01][10.4]

Claudia Flores:[00:05:02]Both by actually reducing the numbers of refugees we would take, by creating barriers to applying for refugee status, and also even changing the definition of refugees so that it was narrower. 

News Clip: A policy is meant to deny asylum to anyone who passes through another country to the US. 

Claudia Flores: Negotiating agreements with Central American countries to require asylum seekers traveling through their country to seek protection there first. And then, of course, there was the Remain in Mexico rule. 

News Clip: The Trump administration's immigration crackdown on the southern border is expanding. All asylum seekers are now required to remain in Mexico to await their day in US immigration court.  

Claudia Flores: And then defining what political opinion was as a grounds for seeking asylum extremely narrowly, as well as defining the term persecution in a very narrow way. So there were all sorts of tricks and moves that the U.S. government has been taking to try to reduce our obligations to accept refugees.[00:05:56][54.4]

Tom Ginsburg:[00:05:57]Most recently, a lot of people bristled when Vice President Harris went to Mexico and the Northern Triangle countries and said: 

Kamala Harris: Do not come, do not come.[00:06:07][0.4]

Tom Ginsburg:[00:06:07]I think if folks felt like they had any other choice, they wouldn't.[00:06:10][2.7]

Claudia Flores:[00:06:10]That's right. All this language about people from the outside trying to come in and take our resources, it creates fear. It makes people afraid of immigrants and makes them want to close our borders. 

News Clip: While the debate over Muslim refugees dominates much of the political rhetoric here at home, it pales in comparison to the dark backlash spreading across Europe, tense protests, street brawls, even arson attacks. 

Claudia Flores: This is problematic for so many reasons. But the first question is, is the scope of the problem as it's been represented real? Does it actually match the numbers? So how many actual migrants are there in the world?[00:06:48][37.9]

Ayelet Shachar :[00:06:49]So I whenever I teach or even if I were to do a lecture and I've done this literally on every continent of the world, what's your sense? I'll give you five options. What do you think is the current number of migrants in the world?[00:06:58][9.6]

Tom Ginsburg:[00:06:59]That is one of the world's leading scholars of migration. Ayelet Shachar. She's a professor of law at the University of Toronto, a prolific writer on immigration, and the author of a book called "The Birthright Lottery."[00:07:10][11.3]

Ayelet Shachar :[00:07:11]The first option would be two hundred and fifty million. So the second answer would be five hundred million. Third would be one billion. Fourth would be two billion and the fifth would be two and a half. And we need a drum roll here, but the actual numbers are, and thissurprises many, many people. It's actually the closest to, the latest count we have from twenty nineteen is that there are two hundred and seventy two million migrants in the world. And I should also qualify, because this is the UN's definition, which is you're out of the country for more than a year. So for example, international students who might be studying at your university. So just to give you a sense, it's actually a small number. And if we look at the more contentious group, which is refugees and asylum seekers and displaced persons, it's roughly 80 million people. Now, 80 million for a global population of eight billion. So, first of all, I would want to say this is a problem that's resolvable. And this is a point that Alex Aleinikoff, who, as you might know, is the deputy high commissioner for the refugee agency. He always says it has to be resolvable. Right. It's a drop in the bucket in terms of numbers. So what's going on?[00:08:13][62.1]

Tom Ginsburg:[00:08:14]Ayelet it believes there's a theoretical puzzle at the core of this problem, one that explains why these rights are so much more contentious than many others.[00:08:22][7.9]

Ayelet Shachar :[00:08:22]You know, the basic puzzle for me was the following. The vast, vast, vast majority of the global population requires membership by birth. And, you know, if you come from the theoretical perspective, you would think about citizenship as associated with consent, with the choice of the governed. These are such basic principles in liberal democratic societies and one of the most significant statuses that we have, not just in the sense of form of identity, but opportunities, basic rights protections. The kind of level of security that you can expect as a human being in relationship to your fellow citizens and your government is something that is required in this absolutely arbitrary, fictitious way who, where or to whom you are born. So this is the birthright lottery. That's the puzzle.[00:09:05][43.0]

Claudia Flores:[00:09:06]It really is a lottery. I'm the daughter of Peruvians, but was born in Belgrade because my dad happened to be working in the former Yugoslavia at the time. Under citizenship law in Yugoslavia, you had to have a Yugoslav parent to gain citizenship. Had I been born in the US, on the other hand, where my parents eventually emigrated, I would have automatically been a citizen. So it's completely arbitrary that today I am not a Serbian citizen. If the origin of our right to be citizens of a country is so arbitrary to begin with, maybe the world would be a better place without these sorts of restrictions. No borders, no citizenship.[00:09:43][37.0]

Ayelet Shachar :[00:09:44]I think I would actually want to say until we have a good sense of what kind of protections we would have in this alternative world. I'm not yet willing to give up on the sense of citizenship because we do have to account for the fact that many individuals, if they had not had citizenship, probably would be removed from the countries into which they are born. Especially in our current world I fear that if we don't have political borders or boundaries, you know, we might just have instead just economic boundaries, for example. Right. So it may be that you'll be totally subject to market forces. You know, currently citizenship grants you some protections, especially protection against removals.[00:10:21][37.2]

Tom Ginsburg:[00:10:22]So if this arbitrary lottery doesn't work, but we don't want to totally give up on some mechanism for defining citizenship, what mechanism does Ayelet think would be better? [00:10:31][9.1]

Ayelet Shachar :[00:10:31]In theory, if you wanted to just say how would we think about the world afresh, that is if we were not in a Westphalian system. You know, that's actually a fascinating question. You can think about supranational. You can think about subnational conceptions of membership. You could think about overlapping memberships. One question is, you're already on the territory, how would you acquire membership or citizenship or have a protected status even? I think there I would go for something that I've called elsewhere the "yousnexi". See, so the idea that if you have sufficient links to a particular place that would grant you a sufficient link connection to be recognized by that community. If you think about the DREAM Act, it's the same logic saying these kids actually, true they were not born in the US, but they were raised American. Everything about them, even their civil rights kind of protest is very American. So they should belong. Right. So that would be a good example of that. Or if we want to keep a system of birthright, our initial allocation just make the secondary possibility for movement much greater.[00:11:32][60.9]

Claudia Flores:[00:11:33]Ilet also thinks we need to reconsider who we even define as refugees.[00:11:37][4.3]

Ayelet Shachar :[00:11:38]If this is a system that's a humanitarian human rights system that is designed to address the greatest need or the greatest protection need, then at least in theory, we would want to say we have to define some criteria. Who's most vulnerable? Currently, our solution is just to say, well, the people who have arrived, we'll just assume that their need is the greatest. And we just don't know that. The assumption is that those who move are probably a little bit better off in the sense that they had the know how, they were able to pay the smugglers. So even to begin with, it could be that there's this inequality among the individuals who are seeking protection. But then if we said, why can't another country say, well, we did the screening overseas or where have you, where the person was, where the need arises, or very close to the conflict zone, and now if you're deemed to be a person who deserves protection, you will be protected. And I just want to give you a concrete example, because you asked about how could it be done differently? So I'll go again to the 2015 refugee crisis. Canada, which a commitment was taken for, for a host of political reasons to say we will take in twenty five thousand Syrian refugees. But instead of them coming to us, we, the state, the apparatus of the state of migration, protection or refugee protection here would move to you. There were a good number of officers which were recruited. Many of them came back from retirement because you needed a good number of people who had a great expertise, were sent to the refugee camps in Jordan, in Lebanon in particular. And there the message was actually sent out. This was done through just various cell phones. People said, would you like to apply for protection in Canada? People thought it was, initially that it was some kind of a trick or something. It was real. And then they had to come in and present their case. Their identity had to be verified. So there are lots of things that have to be done on the ground. But it was done extremely quickly. It was within two or three months, actually. Twenty five thousand people came to Canada and once they came in, their status was already protected because they were already deemed to have passed the threshold of being of justifying protection. So when they came in, they came in as permanent residents so they didn't have to go through. Also just there's a whole lottery that happens after you're in the country. So even if you make it say to Europe, people who could stay for two, three, four or five years without knowing whether they'll be able to actually remain. That's also extremely cruel, right, to have five years of your life waiting and then to be told that, sorry, we are not going to be your home. So if states can enforce their powers in terms of restricting mobility globally, really now it's almost without restraint. But why not then have protection begin overseas? I think it's much more stable. It reduces the political tensions around this notion of uncontrolled entry. I think it would be fairer if indeed we would get to the harder cases and those would be the cases that get priority. I think in theory that should be a better solution. It's just that we don't have the political will. So I hear I don't think it's a problem of imagination or even the legal structures there. It's a problem of political will and getting, in a way, convincing leaders and countries and voters that it's in their sovereign interests actually, to do this. It protects you in the long run is as absurd as it may sound.[00:14:48][190.6]

Tom Ginsburg:[00:14:49]One last point from Ayelet. She says that we've applied tech focused innovations to so many problems in our modern world, and yet there doesn't seem to be any tech innovations here.[00:14:59][9.6]

Ayelet Shachar :[00:14:59]Some of my techie friends really like the idea that you can do matching programs, right? So you could say I'm a refugee, I'm seeking protection. The example I've given you earlier of Canada was actually sending immigration officials who did the screening. But what happens if you can just, you know, like an Uber just or just like any kind of sort of app, you can just put your name in and say, you know, this is my expertize I studied engineering in Syria or in Iraq. And I'm now, I speak two languages and I really want to get out of my you know, I'm in a terrible situation. Where can I go? And then you might have an employer who's actually saying, oh, you know, your skill set just fits perfectly. And I'm not saying this is an abstract thing. There's actually one program that I'm familiar with that actually is now tested in both Canada and Australia in terms of doing the matching. And people are testing this algorithm and saying, why not? You know, again, this is what I said, we're in the Stone Age. Why can't we think about such simple solutions? I mean, any person who has to apply to a university has to do this. Can't we, like what kind of rocket science would it take to try and do this? It's not going to solve everything. Some people have no skills and are still in need of protection. I'm not pretending this is a magic bullet, but let's first try out all these alternatives and all of these possibilities and then see what what remains.[00:16:20][80.6]

Tom Ginsburg:[00:16:28]Of course, all this is a separate question as to which countries are really bearing the burden. And maybe the concern about loss of control becomes a little more real in those places. Take, for example, Aruba, a Caribbean island just 15 miles off the coast of Venezuela, which, of course, has become an economic disaster under the regime of Nicolas Maduro. Here's Maya Soumah with the U.N. High Commissioner for Refugees in Aruba.[00:16:51][23.0]

Speaker 3:[00:16:52]Aruba has hosted the world's largest number of civilians displaced abroad relative to its population. So one of the six inhabitants of Aruba is Venezuelan at this point.[00:17:03][10.6]

Claudia Flores:[00:17:03]so you can see in Aruba a situation where a country isn't poor or wealthy but is small, how the refugee crisis, the influx of refugees might lead to a complex social reaction that in the long run actually hurts more refugees.[00:17:16][12.5]

Speaker 3:[00:17:17]What we see is that that has resulted already in tighter borders, closed borders with Venezuela, introducing visa requirements, for example. And while most Venezuelans in the past arrived to Aruba with a visa, with a formal visa or initial permit, many have overstayed them. So now, consequently, they are irregular on the island now and you don't have many opportunities to become regular again. So, yes, we do see is that we have a restrictive policy for people requesting asylum.[00:17:49][32.0]

Tom Ginsburg:[00:17:49]So refugees there now have a 99 percent rejection rate, but they can't go back to Venezuela. And Aruba is not providing them with any path to legalization, to work, to support themselves, or any services at all.[00:18:02][12.4]

Claudia Flores:[00:18:02]This is the kind of crisis the Refugee Convention of 1951 really sought to avoid. A country with now 15, 16 percent of its population as unrecognized, out of status, with no resources and nowhere to call home. On a practical level, if opening up borders leads to political pushback and that leads to stricter clampdowns than before, it's not really going to help asylum seekers anyway.[00:18:27][25.1]

Tom Ginsburg:[00:18:28]Countries that do have the means to assist don't always do so.[00:18:31][3.0]

Claudia Flores:[00:18:31]The US, by the way, is not even in the top 10 countries that accept refugees and we barely make the top 20. This is despite having the third largest population in the world and the highest GDP by far.[00:18:43][11.8]

Tom Ginsburg:[00:18:44]And there isn't really a working mechanism to create the kind of global cooperation that you'd want to see.[00:18:48][4.8]

Claudia Flores:[00:18:49]So let's talk about that system and how we can make it better for the 80 million who need help. That's after the break. If you're getting a lot out of this podcast, there's another University of Chicago podcast network show you should check out. It's called Capital Isn't. Capital Isn't uses the latest economic thinking to zero in on the ways capitalism is and more often isn't working today. JoinVanity Fair contributing editor Bethany McLean and distinguished professor of economics Luigi Zingales as they explain how capitalism can go wrong and what we can do about it. Listen to Capital isn't part of the University of Chicago Podcast Network. So, Tom, we've got the birthright lottery that basically gives you resources by the stroke of luck of where you happened to be born. We have a system that only recognizes the right to leave a country and relocate elsewhere if you can demonstrate a particular kind of persecution. And even that system suffers from a serious lack of state cooperation. So the burden is falling a lot on some countries and not at all on others. Here's Itamar Mann. He's a professor at the University of Haifa, on international law, refugee law and migrants' rights. We asked him how he understands the migrant crisis and what's happening to migrants at the border.[00:20:15][86.3]

Itamar Mann:[00:20:16]I think a good way to understand it is in the post-Cold War moment, migration globally became an enormous phenomenon, oftentimes related to global disparities of wealth, climate crises, protracted security crises or civil wars, and people in many countries around the world at the fault lines between the global north and the global south have used movement in order to make claims about what they deserve in this world. Refugee law became an avenue for many people to make various human rights claims that are not only cabined within really refugee law. So claims that go beyond persecution or torture, which are the traditional areas that are protected under human rights law considering migration.[00:21:05][49.1]

Tom Ginsburg:[00:21:06]I wonder, just sticking with the torture and persecution part for a minute, even now, just with those limited categories, there's a far greater sort of supply of rights than there is supply of places to take those folks. Right. So do you worry a little bit about expanding the categories of potential beneficiaries in a world in which states seem to be very reluctant even to meet their existing obligations?[00:21:30][24.7]

Itamar Mann:[00:21:32]Absolutely. I worry about this in the sense that expanding these rights might also end up backlashing against the people that I want to help. And this is a political process that we have seen obviously in many parts of the world, including in the United States, especially during the Trump era, but not only during the Trump era. But we are kind of beyond a moment when we can really worry about that. Things have become so extreme and so radical that people will be moving regardless of what we really do. The question is whether their movement will be safe. Will they be offered some stability or will it become a certain kind of conflict, a certain kind of conflict that can even take the form of organized crime or really civil unrest in various parts of the world? Having said that, also, I think it's really important to try to intervene in places where you can make a difference and where you can also expect that there's a certain constituency that can provide an environment in which a judgment, if if it's favorable, will be also implemented and accepted more or less. I think the threat of backlash and the threat of global populist movements, as it's often called, is sometimes overemphasized. I think that in the European context, for example, there's a real, very strong grassroots social movement that is constituted by these actions that sees these campaigns for refugees as part of their identity. And it's very important for their understanding of what human rights are and for their basic, most basic commitments. But it's surely important to remain cognizant of these political pressures. That's that I would not deny by any means.[00:23:26][114.4]

Claudia Flores:[00:23:26]I'm curious, this category of refugees, I think most people that think about migration or are paying attention to migration, agree that it's narrow, right. That if you're if you're really concerned with giving groups of people that are migrating under dire straits relief that the category of refugees doesn't quite capture it. What is your sense? Do you think that category was ever fitting to the kind of migration that was taking place globally? Is there something that's changed over time or is that just the justification that states were comfortable with? And it's always been a mismatch to what's actually happening in the world.[00:23:59][33.0]

Itamar Mann:[00:24:00]I oftentimes like to quote in this context, an African person that I worked with. He was a recognized refugee in Greece, and he was also kind of thoughtful about these issues. And we discussed this once. I asked him whether it would be fair to only protect people who are persecuted politically and then forgo everyone who is suffering from dire poverty, disease or environmental crisis. And the answer was very interesting in the sense that he said that if you're persecuted politically, you can always change your political mind. But if you don't have anything to eat, you really have to move, so in a way, it really signals this enormous mismatch between the needs of most people and the way the law is constructed. And this is, of course, unfortunate. I mean, I think it is, as you alluded to in your question, a result of a particular historic moment, a particular set of political circumstances. As a matter of justice, as a normative matter, it's not justified to limit the categories so narrowly and it's also not realistic. So I think the mismatch is really more the case than a kind of partial position that would accommodate this kind of compromise that was made in the mid 20th century.[00:25:19][79.5]

Tom Ginsburg:[00:25:20]And, of course, the elephant in the room in this discussion is whether or not there should be borders at all. I strongly think we do still need borders. I may be a minority these days, but the fact is that we have only historically had good systems of redistribution and protection within the context of nation states. And so you have to have some boundaries, some way of regulating who comes in and out in order for that to be possible.[00:25:48][27.9]

Claudia Flores:[00:25:48]Well, first of all, I think the nation state causes a lot of harm and there is probably alternative systems. But I can imagine a world where we have borders in theory almost, that are really, really porous and where resources are not based on state level governments.[00:26:03][14.7]

Tom Ginsburg:[00:26:04]Well, let's not pretend that there aren't some bads that do cross borders. It's not all helpless refugees. Right. We have drugs. We have gangs. We have guns that cross borders and cause harms in the places that they end up. And the other thing is, I just think that a political community, democracy itself, requires some boundary. And it's a thorny question in political theory about exactly what the boundaries of a democracy should be. But at some point, we have to have some sense of who's in and who's out. And just opening the world up to everybody would undermine the solidarity on which democracy ultimately depends.[00:26:41][37.6]

Itamar Mann:[00:26:42]Yeah. So first, I think that the no border position, I would perhaps not present it as off the wall as you just did.[00:26:49][6.6]

Claudia Flores:[00:26:49]I was about to step in and say, hold on, once second. 

Tom Ginsburg: We disagree.[00:26:53][4.1]

Itamar Mann:[00:26:54]However, I don't happen to be in that camp either. I've been fascinated recently by the idea of democratizing borders. Borders are the non-democratic conditions for democracy to operate. And we we must think about how to democratize them as well.[00:27:09][15.3]

Claudia Flores:[00:27:10]So I like this idea of Itamar's, that borders could be conceived of in a more democratic way. For states to collaborate on border policies that don't just benefit them and their population, but that also take into account the lives and well-being of those wanting to cross the border, those seeking work opportunities, wanting to see their families, wanting to flee from violence.[00:27:32][22.5]

Itamar Mann:[00:27:33]Think of borders that you can consent to from a position in which you don't know on which side of the border you'll end up being. And you can accept it from either side of the border. You can accept it as fair. You can accept it as giving you opportunities for a life worth living. That, I think, is the normative ideal and the kind of regulative ideal of this movement of border justice that I've tried to articulate in some of my work.[00:28:00][27.1]

Claudia Flores:[00:28:00]But the theory of borders gets tricky when you're in a situation with no borders at all. Itamar is one of the founders of the Global Legal Action Network, a human rights advocacy NGO that, among other things, files cases against countries that fail to rescue migrants at sea.[00:28:18][17.9]

Itamar Mann:[00:28:19]So when you start to look at this maritime environment as a more planned infrastructure where boats and ships can decide where to travel and we're not to travel, we see areas that in one paper I call the maritime legal black hole. So there is this famous understanding of the legal black hole in Guantanamo. But there is also this idea that certain seascapes, certain maritime areas can render people de jura rightless. Because if something happens to them there and no one has a duty of rescue towards them because they're not close enough proximity, then really anything can happen to them. And that, I think generating in a kind of planned way these maritime legal black holes is what has caused this enormous, enormous tragedy where tens and thousands of people die systematically in the Mediterranean Sea. So I think IOM numbers show that since twenty fourteen thirty four thousand people have died by drowning in the Mediterranean Sea, where these deaths are preventable, by all means, if the infrastructure and the budget was made to try to concertedly prevent them. But no, I mean, there is a kind of planned withdrawal from these areas. And if we try to think about how these areas can be covered by law or invited into the realm of rights, one interesting place to look is at the action of voluntary rescuers or volunteers that go out to sea to try to rescue these people. And when they do that, they're exercising their own civil and political rights ann their own right to movement. But when they come close to migrants who are in distress, they then have an obligation also to rescue them. And they can invite them into the jurisdiction. They can invite them into territory. And this is what in recent years created this enormous movement towards criminalizing rescue activity.[00:30:21][121.5]

Claudia Flores:[00:30:22]Itamar is trying to curb this practice in a case called Hirsi vs. Italy. In that case, Italy entered into an agreement with Libya to stem the flow of refugees from other African countries and to avoid having them reach Italy at all.[00:30:37][15.2]

Itamar Mann:[00:30:37]So, Hirsi, when it comes out, it's already in some ways an obsolete model from 2012. Italy is already relying on Libyan forces to some degree, but in recent years this has become really much more pronounced. And the premise is that if Italy is relying on Libyan forces, it won't be caught under the test of Hirsi. There won't be de jura or de facto jurisdiction because the Italian boat will not directly gain control over an individual at sea. That they can simply call the Libyans and then the Libyans will rescue and return the person back without directly returning them, which would amount to refoulement or which would amount to a violation of a basic principle of international human rights law, international refugee law. And we're trying to say that by this system that they have put in place, they're controlling the Libyan forces. The Libyan forces become a kind of organ, in effect, of the Italian state. And therefore, jurisdiction has to still follow because it's de facto Italy that's doing the action in the Mediterranean. This is a case that Italy has had to respond to, but we have not yet reached oral argument with.[00:31:55][77.8]

Tom Ginsburg:[00:31:56]OK, so the issue of rights at the border is really a big one, it's about the global distribution of resources, the birthright lottery, nationalism, xenophobia, national identity and global cooperation.[00:32:08][11.0]

Claudia Flores:[00:32:08]Who counts? Who's really in distress? Who gets in? How do we make all of those decisions? As long as we have nations and borders, these are always going to be questions. But there are far better models than what we're doing now. Porous borders, increased mobility, more cooperation and broad categories of humanitarian assistance would at least make things significantly better.[00:32:31][22.6]

Tom Ginsburg:[00:32:32]One thing that's often lost in this discussion is the experience of the migrant herself. The person leaving her home is not doing it because she wants to do but because she feels she has to. The truth is, people everywhere don't want to leave their homes. Their communities, families and cultures.[00:32:47][15.5]

Claudia Flores:[00:32:48]No, they don't. Remember Nina, who we met at the beginning of the episode. Her whole family, her community is back in Algeria. She can't ever go back. Now she has asylum in the U.S. and she has to stay here. This was not an easy decision for her to make.[00:33:03][15.2]

Nina Kerkebane:[00:33:04]Absolutely not. That's one thing that I talk a lot about. I'm sorry, is that asylum is also like a violent act because you're cutting ties, with your family, with your friends, your culture, language, like it's just it's over, and so even though I believe in the rights that I believe that it's the right thing to do, it's also a violent decision that is sad that we're making people make that decision or be in that situation, to make that decision.[00:33:32][28.8]

Tom Ginsburg:[00:33:34]What happens when you finally receive asylum? What was that like?[00:33:38][4.2]

Speaker 3:[00:33:38]That was almost like it's unspeakable. Like you live in this limbo where you don't know what's going to happen to you. The uncertainty. So it's finally that that freedom and that peace of the knowing that there is an entity out there that cares. Because I think one big part of like going through the asylum process is realizing that your own nation has abandoned you. So it's just feeling like there is something out there that still believes that you are worth living, basically. And so it was such a relief. And then, you know, your life could start because then you can start working and studying. And just being part of acommunity again.[00:34:13][34.2]

Tom Ginsburg:[00:34:14]Doesn't seem like a big ask.[00:34:15][1.1]

Claudia Flores:[00:34:16]No, seems pretty basic to me. I'm Claudia Flores,[00:34:29][12.5]

Tom Ginsburg:[00:34:30]and I'm Tom Ginzberg. You've been listening to Entitled, a podcast about why rights matter and what's the matter with rights.[00:34:36][6.4]

Claudia Flores:[00:34:37]On our next episode, The Right to Bear Arms. Is it a right? Entitled is a project of the University of Chicago Law School through the University of Chicago podcast network. This episode was written by us, produced by Alyssa Edes and edited by Matt Hodapp. Chelsea Kehrer, Hannah Abrahams, along with Simone Gewirth contributed to this episode. Thanks for listening and we will catch you next time.[00:34:37][0.0]