Tag Archives: arbitrariness

Open borders: the solution to conflict in the Middle East

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Anne-Marie Slaughter, a respected US academic and former bureaucrat in the field of international studies, recently authored an interesting piece highlighting an unconventional 2-state solution for Israel and Palestine:

“Two-state condominialism” is as visionary as the name is clunky. The core idea is that Israelis and Palestinians would be citizens of two separate states and thus would identify with two separate political authorities. Palestine would be defined as a state of the Palestinian people, and Israel as a Jewish state. Under “condominialism,” however, both Palestinians and Jews “would be granted the right to settle anywhere within the territory of either of the two states, the two states thus forming a single, binational settlement community.”

…Palestinians “would have the right to settle anywhere within Israel just as Jews would have the right to settle anywhere within the territory of the Palestinian state. Regardless of which of the two states they lived in, all Palestinians would be citizens of the Palestinian state, all Jews citizens of Israel.” Each state would have the authority and the obligation to provide for the economic, cultural, religious, and welfare needs of its citizens living in the other state’s territory.

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Condominialism recognizes the reality of the deep interconnectedness of Israeli settlers in the West Bank with the rest of Israel – through roads, water supplies, electricity grids, administrative structures, and economic relationships (just as Israeli and Palestinian parts of Jerusalem are interdependent). Instead of trying to separate and recreate all of these structures and relationships, it makes far more sense to build on them in ways that benefit both states’ peoples and economies. And, in a world in which many citizens spend an increasing proportion of their time in virtual space, de facto condominialism is already happening.

As ideas go, I’ve seen worse. I like this a lot. In fact, I like this enough to the point that I would like to know: what’s keeping the rest of the world from trying this out? In many parts of the world, the forms of “deep interconnectedness” Slaughter describes already exist in total defiance of arbitrary, human-defined borders. In fact, I am a bit surprised she almost seems to gloss over the human relationships and communities that constitute the most important interconnectedness here.

To take an example I’m familiar with, it matters little to a Malaysian living in East Malaysia on the island of Borneo where the technical border is. Not when he and his family have been living and moving across the land long before any international border sprung up separating Malaysia and Indonesia. Across the South China Sea in West Malaysia, Malaysians who live in the north are permitted to cross our border with Thailand without passports or visas, a governmental nod to our deep interconnectedness. Stories like these can be found across the world, including in the southern US, where people still recall how, before paranoia post-9/11 set in, communities divided by a border paid it no heed, their lives bonded together by social and economic ties that matter far more than arbitrary lines drawn on a map.

And to her credit, Slaughter closes by obliquely pointing to the relevance of open borders outside the Middle East:

In the 1950’s, after four decades of war across Europe, the idea of a European Union in which member states’ citizens could live and work freely across national borders while retaining their political allegiance and cultural identity seemed equally far-fetched. (Indeed, the name of the political process by which the EU was to be constructed, “neo-functionalism,” was every bit as abstract and cumbersome as “two-state condominialism.”) Yet French and German statesmen summoned the vision and the will to launch a bold experiment, one that has evolved into a single economy of 500 million people.

The EU has proven that on a fairly large scale, open borders work. (I am not too sure about the feasibility of a single currency, though.) To the extent that open borders in the EU have been detrimental, they have been addressable by keyhole solutions (such as transparent, clearly-defined temporary restrictions on immigrant flows to allow societal adjustment). And to the extent that they have been harmful in spite of keyhole solutions, it is absolutely clear that most, if not all, predictions of catastrophe have not come to pass.

Borders may be arbitrary, but we don’t need to abolish them to have open borders. Indeed, Slaughter says: “To make this work, the borders of each state would first have to be defined – presumably on the basis of the 1967 borders, with mutually agreed territorial swaps.” Borders define the area of a state’s sovereign jurisdiction. But they don’t define the human relationships that form the warp and weave of everyday life. Fundamental morality and economics agree: we need open borders.

Heightening the contradictions

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I hope this becomes law and all…

Report: Senate immigration plan sets deportation timeframe

The bipartisan Senate immigration plan would deport immigrants who illegally entered the U.S. after 2011, a Senate aide told Reuters on Friday.

The plan would give most of the approximately 11 million unauthorized immigrants a way to stay in the U.S. and eventually seek citizenship — but those who entered the country since the beginning of 2012 would have to leave, according to the staffer.

“People need to have been in the country long enough to have put down some roots. If you just got here and are illegal, then you can’t stay,” the aide said.

The bipartisan “Gang of Eight” senators is working out the final details of a broad-ranging immigration reform bill, with hopes to unveil it on Tuesday so the Judiciary Committee can begin to examine it on Wednesday. Sources say major policy differences have been ironed out.

“I don’t see, looking forward the next few days, any major barrier in the way,” Sen. Charles Schumer (D-N.Y.), who has led the immigration talks, said earlier this week.

Negotiators had hoped to unveil the legislation this week, but it slipped down the Senate agenda following Wednesday’s announcement of a deal on gun violence legislation.

The bill would increase border security, give unauthorized citizens permanent legal status and offer some a pathway to citizenship after 13 years, increase the number of high-skilled visas and create a guest-worker program for low-skilled immigrants. Both business and labor coalitions have been involved in the negotiations and are still on board.

… but it still leaves large, seemingly unanswerable questions about implementation and justice. First, the 2011 date is clearly arbitrary. No one could claim it was OK to immigrate with documents before 2011 but wrong thereafter. Second, how do you check whether people arrived in 2011 and after? Of course, everyone will have a strong incentive to say they arrived sooner. Third, the same compelling reasons of humanity and commonsense which motivate this amnesty will obviously still be around to motivate future amnesties. Indeed, an amnesty now (sorry for the politically incorrect terminology) will only further undermine the strange 20th-century national socialist notion that it’s somehow morally acceptable to seize by force a person who has done no one any harm, rip them out of their family and community, and ship them off to some country they don’t want to go to just because they happen to have been born there and weren’t issue some document by a consular official with whom none of the parties concerned (friends, relatives, landlords, etc.) are even acquainted. Fourth, because this amnesty will surely create greater expectations of future amnesties, it will increase the incentives for more people to come in anticipation of future amnesties. I’m all in favor of that. I support the amnesty as a means of incentivizing the next wave of undocumented immigration, as much as out of humanity and decent hospitality towards those who have arrived already. But at the end of the day, the norms and values and behaviors and assumptions of a decent society just cannot be reconciled with the practical aspect of migration restrictionism, and amnesty won’t solve the problem, but will only heighten the contradictions.

A DREAM Act for Singapore? Or, the arbitrariness of nationality-based residence laws

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There is a 19-year-old Filipino citizen who has literally lived her entire life in Singapore who, as of this writing, risks being kicked out of the only country she has ever called home:

Nadirah was born out of wedlock in Singapore and given a Filipino citizenship, as her mother was a Filipino. Along with her five siblings, two other siblings are also non-citizens while the other three siblings were given citizenship as her parents got officially married in Philippine before they were born.

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As Nadirah graduates from ITE, she will soon be asked to return to Philippine once her student visa expires in a month’s time. To be relying on relatives whom she never spoken to for years and a country where she has no memory of, the situation looks utmost depressing for this young lady with a uncertain future.

Nadirah’s situation reminds me all too much of the “DREAMers” of the US –young people who are present in the US without lawful immigration status who have spent most, if not all, of their lives as law-abiding members of US society. The immigration laws of Singapore ought to give people like her relief: there’s an argument to be made that even if she doesn’t deserve citizenship, she certainly ought to be able to reside in the only country she’s ever called home.

But we ought to look beyond the specific issue of young people whose paper nationality does not match the nationality written on their hearts. There are plenty of older people who, whether or not they feel a sense of national belonging to another country, are productive and harmonious members of that country’s society.

My mother may provide a useful illustration: she is a Filipino citizen who resided in Malaysia with our family for several years on a renewable 1-year “social visit pass”: the Malaysian immigration authorities maintained this legal fiction that she was making a “social visit” to my father for an extended period of time. While this is certainly more favourable than how other immigration legal regimes treat families, it also meant my mother had no legal standing to work in the country (despite possessing a post-graduate degree in a STEM field) and risked deportation or being barred entry for fairly arbitrary reasons.

A real risk my family faced was that if my father died, there would be no legal fiction for her to remain on a “social visit” and force her to return to the Philippines (where she has not lived for decades). Moreover, the restrictions of the pass forced my parents to spend multiple working days every year processing the necessary red tape to renew my mother’s visa (a luxury which many less-educated, working-class families probably can’t afford), and deterred my mother from leaving the country (on one occasion, a bureaucratic error in her visa meant that she risked being unable to re-enter the country if she left, even for a brief visit — so she simply did not visit any friends or family in neighbouring Southeast Asian countries until the next year, when her visa was renewed and the error corrected).

In principle, my family could have obtained permanent residency for my mother. In practice, the immigration bureaucracy seemed content not to bother itself with her application. It’s going on 15 years since her application was first filed, and every single time we’ve checked on its status, we’ve been told: “Wait for a letter from us.” The last time my father visited a Malaysian immigration office to discuss this, he saw a white woman berating a civil servant. She had apparently married a Malaysian who had since died, which is probably why she was there at the office that day. She was shouting at the government clerk in fluent, well-accented Malay: “I have been living in this country for longer than you have been alive!”

(Of course, there’s always a story that can top any story you think of. If we are speaking of immigrants’ pulling rank based on seniority, I can only imagine what a Mr. Padilla, who had lived in the US for over 4 decades and fought for it in the Vietnam War, had to say when he received his deportation order.)

The way we think about immigration law assumes citizens must, more or less, live in the country of their nationality. If they live or develop ties elsewhere, they need to prioritise their loyalties and naturalise as necessary. The permanent residency systems of most countries assume that those holding permanent residency will eventually naturalise: I have heard of one Malaysian holding permanent residency in the UK who calls both the UK and Malaysia home being frustrated at the UK border when its immigration officers demand to know why she wants to come in (“because it’s my home!”).

Yet there is no reason to bind citizenship and residency together: even in the status quo we can simply define citizenship as membership in a polity, and residency as the right to reside there and submit to that polity’s laws. Perhaps Nadirah wouldn’t be satisfied without citizenship — she might have grounds for this, since it sounds like she has always thought of herself as a Singaporean. But she and her Singaporean friends and family would still find this arrangement a whole lot more palatable than the alternative, which is to expel her as a non-resident to a country that is just as foreign to her as it is to Lee Kuan Yew.

The very fact that some of Nadirah’s siblings are Singaporean citizens and some are not speaks volumes about the arbitrariness and ridiculousness of how immigration law treats human beings: the entire lives of people, and the communities they are embedded in, hinge on some pieces of paper. Whether it’s a birth certificate (God bless those lucky people whose foreign parents were rich enough to give birth to them in the US and entitle them to American citizenship) or a marriage certificate (which gave some of Nadirah’s siblings the legal imprimatur that she lacks), it serves as an entirely arbitrary division between people who, for all other intents and purposes, are identical.

If immigration policy prevents people who call a place their home — a home that their community recognises as theirs — from actually living in that home, then as a moral matter, immigration policy is wrong. Plain and simple. We recognise the moral truth of platitudes like “Home is where the heart is.” We may sing paeans to the importance of community and how that defines the space we call home. But when home is on the line for members of our communities who, by an accident of birth, don’t have the legal right to live in their own home, do we have the moral courage to change the laws which make a mockery of the concepts of home, family, and community?

Imaginary lines: the borders of Southeast Asia and the Nusantara

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As I write, a stand-off has been ongoing in East Malaysia for almost a month: the Sultan of Sulu, who in reality is a private Filipino citizen with no sovereignty in his own right, ordered his paramilitary forces to press his historic claim to the territory of Sabah, which has been a state of Malaysia since 1963. Already dozens have died in the conflict. The conflict is a sad reminder of the generally arbitrary and somewhat accidental nature of many borders: it’s purely an accident of history that the main territory of Sulu passed to the Philippines instead of Malaysia, and that its hereditary Sultan is today a Filipino instead of a Malaysian.

Farish Noor, a respected Malaysian scholar who currently teaches in Singapore, recently authored an excellent piece on the subject. Even if you are otherwise completely uninterested in the region, I think it makes for fascinating reading. Farish is by training a historian, and he does a fantastic job of illustrating how the modern nation-state maps rather awkwardly to the way people historically have led their lives, and even awkwardly to the way people live today. A snippet:

Sabahans have never had a problem with other communities settling there, and that is why we still see large numbers of Suluks, Bajaos, Malays and Chinese across the state, settling into mixed families or into smaller settlements. Furthermore Sabahans are attuned to the reality of living in a fluid archipelago, which is why its coastal settlements have always been transit points where people from abroad come in and out with ease.

Just before the Lahad Datu incident I was informed that a large number of Suluks had arrived for a wedding, and they came in without passports and visas, and left peacefully afterwards.

It has been like that in Sabah since my childhood. But my fear is that culture of openness and fluidity came to an untimely and graceless end when some of the followers of the Sultan of Sulu landed with guns and rocket-launchers.

Historian Benedict Anderson chose Indonesia as the classic example of an “imagined community” for a reason: most Southeast Asian states have no real reason to follow the boundaries they do today. The Nusantara (the Malay name for the Malay archipelago, which today maps more or less to Indonesia, Malaysia, the Philippines, Brunei, Timor Leste, and possibly some other states/territories I’ve neglected to name) has historically been, as Farish says, “a fluid space.” The nation-state is an extremely blunt instrument that maps poorly to the multitude of identities — many of which are blended and melded in the same person or household — forming the cultural patchwork of Southeast Asia. The divisions on this map below map more to the arbitrary carving up of the Nusantara by colonial powers in the 19th century than they do to any meaningful differences between their peoples, then or now:

CIA-Malaysia-map[1]

Does this mean we should abolish the nation-state? Work towards no borders, instead of open borders? Not necessarily so, and again Farish is incredibly insightful on this point — so insightful that it’s difficult not to quote him almost in full:

Gone are the days when a Malaysian, Filipino or Singaporean would be born in his country, study in the same country, work and die in the same country. In the near future, we may well live to see the birth of the first ASEAN [Southeast Asian equivalent of the European Union] generation who are born in one country, study in another, work in another and die in another, all the while feeling that he or she is still at home, in Southeast Asia.

But for this to happen, we cannot bypass the nation-state entirely; for we need the nation-state in order to transcend the nation-state. We need the nation-state to evolve where it may one day accept the reality that its citizens have multiple origins, multiple destinies, multiple and combined loyalties.

We need to work towards an ASEAN future where our governments may come to accept our complex, confounding hyphenated identities as something normal, and not an anomaly; when someone who is Javanese-Dutch-Indian-Arab like me can claim to come from Indonesia, be born in Malaysia, work in Singapore and love the Philippines.

Ironically, this is the impasse we are at today: To revive our collective memory of a shared Southeast Asian past, we need to work with and through the nation-state as the dominant paradigm that governs international relations.

Like Farish, I see no necessity for the abolition of the nation-state. The nation-state is a tool of governance; it is not a suicide pact. Where the nation-state furthers our lives by protecting us from harm and pursuing the common interest, all is well. But we should not ramshackle the nation to the state and the state to the nation.

I am the global version of Farish’s ASEAN citizen: I am of Chinese-Filipino descent, born in Japan, raised in Singapore and Malaysia, studied in the US and the UK, and now working in the US. I have multiple affiliations, loyalties, identities. These are just as arbitrary as the accidents of fate that determine which sports team you root for, and yet no less meaningful. We have learned to live and let live in our sporting affiliations (for the most part, the occasional European football or Canadian hockey riot notwithstanding), recognising their arbitariness but reveling in their significance. We can do the same with the nation-state and its borders.

Borders serve a purpose: they delineate the laws and institutions which govern a territory. To the extent that our legal institutions need to track comings and goings of people, just as they do with goods or services, they can erect border checkpoints and controls. To the extent that they need to maintain order and forestall invasion, they can forcibly keep people out at these checkpoints. But that is all. We need not make a fetish out of these borders: they are significant but arbitrary boundary markers. There is no reason beyond prejudice to arbitrarily keep some people out, and arbitrarily let others in. When we keep people from seeking gainful employment, when we keep friends and families apart, we need a good reason to do so.

The nation-state once was an instrument for oppression: initially oppression of domestic subjects by the sovereign, later the oppression of foreigners in distant lands. Over time, we have discarded the oppressive aspects of the nation-state, and embraced the state’s furtherance where it seems beneficial. And so as Farish says, the clarion call for open borders is not to abolish the nation-state: it is to take the nation-state toward the next step in its evolution.

True stories from immigration law: US citizens have no right to be with their spouses

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The US legal doctrine of consular nonreviewability leads to over a million people being refused visas every year, with no legal avenue to challenge the consular officer’s decision, no matter how arbitrary, prejudiced, or groundless it may be. But beyond affecting these foreigners’ lives, there are real effects on US citizens too. One effect of racial segregation which social justice discussions often gloss over is how unjust laws oppressed not just the visible immediate victims, but also others, ostensibly privileged, who wished to engage with the oppressed. Such is the case with immigration laws around the world today. US legal precedent is especially enlightening here.

Filipino-Hawaiian lawyer Emmanuel Samonte Tipon last year blogged a useful overview of relevant cases touching on when someone might have legal standing to sue for judicial review of a visa application. Let’s go over them one by one.

  1. Sabataityte v. Powell: Sabataityte was denied a visa because the Warsaw consulate believed she had been previously unlawfully present in the US. She challenged this determination. The courts ruled that regardless of the merits, she had no right to mount such a challenge.
  2. Saavedra Bruno v. Albright: Saavedra was denied a visa, and had another visa revoked, because the US government believed he had previously illicitly trafficked drugs (based on a hit when they searched his name in a database). This was news to Saavedra and his American employer, both of whom sued the government to present the evidence so they could challenge the determination that he was a drug trafficker. The courts ruled that both Saavedra and his American employer had no legal basis to confront the claims against him or challenge the visa refusal.
  3. Hermina Sague v. United States: Sague, a citizen, married Berger, a Frenchman, and applied to permit him to enter the US so they could live together as a family. The government denied Berger a visa, and Sague sued, insisting she had a right as a citizen to live with her husband in the US. The courts ruled that it was impossible to challenge the consular refusal and moreover, based on legal precedent, “there is no constitutional right of a citizen spouse … to have her alien spouse enter the United States.” Perhaps even more perversely, “once an alien has entered our jurisdiction, even illegally, he may only be expelled after proceedings conforming to the traditional standards of fairness encompassed in due process of law. However … ‘an alien on the threshold of initial entry stands on a different footing.'” In other words, if you want due process, you need to enter the US illegally.
  4. Centeno v. Shultz: Centeno, a Filipino citizen, applied for a visa to visit his American family, and was denied. He and Coane, his American brother-in-law, sued to appeal this decision, arguing that the decision was arbitrary and violated Coane’s first amendment rights to engage in discussion with his brother-in-law. (You laugh, but violation of citizens’ first amendment rights is one of the few grounds citizens have to challenge consular officers’ decisions.) The US Court of Appeal essentially laughed Centeno and Coane out of court in a one-page decision.
  5. Patel v. Reno: Patel, a US citizen, applied for visas for his non-citizen wife and children. The government, suspecting Patel had obtained citizenship by fraudulent means, instructed the consulate in Mumbai to place Patel’s application in limbo, where it laid for 8 years. The courts ruled that since no final decision had been made, this visa application was subject to judicial review. Since the application had been in suspended state for 8 years, the courts ordered the consulate to make a final decision on whether to grant the application within 30 days. At the same time, the courts affirmed that not even the Secretary of State had the power to overturn the visa decision once it had been made.
  6. Kleindienst v. Mandel: A seminal case in US immigration law. Mandel was a Belgian Marxist who had travelled to the US many times to speak. In 1969 he applied for a visa and was refused on grounds of his politics. He and the citizens who had invited him to speak sued, citing amongst other factors, the government’s denial of the citizens’ first amendment rights to freedom of speech. The Supreme Court eventually ruled that an infringement of first amendment rights could be grounds for judicial review; broadly, the consular decision on a visa application must have “a facially legitimate and bona fide reason”. Immigration lawyers regard this as a landmark case for immigrant rights, but in reality, the Supreme Court went on to say that allowing Mandel his visa on first amendment grounds risked destroying the doctrine of consular nonreviewability, since by definition virtually all immigration restrictions infringe on citizens’ first amendment rights. The court then held that Mandel was not entitled to judicial review of the consular decision.
  7. Udugampola v. Jacobs: Udugampola, a US citizen, applied for an immigrant visa for her non-citizen father. The government initially approved the petition, but at the consular interview, the officer there denied the visa because he suspected her father of terrorism. Udugampola and her mother (also a legal immigrant to the US) sued the government. The courts ruled that neither Udugampola’s rights as a daughter nor her mother’s rights as a wife were constitutionally-protected in this case, and they had no basis to challenge the consular decision.

A common thread runs through all these: no matter whose interest are at stake, there is virtually no right to question a consular decision, even if it is based on flimsy evidence or is egregiously wrong. Even if it splits up a marriage, the government has absolute totalitarian power. And these are just the cases which get as far as prominent courts in the US. How many thousands of families must there be, lives ruined by immigration law, around the world? How can any self-respecting person in this day and age reconcile the outright disdain immigration law has for our families and communities with modern ideals of liberty and human rights?

The photograph featured at the top of this post is of Mario Chavez embracing his wife Lizeth through the US-Mexico border fence at Playas de Tijuana. The original photograph is copyright David Maung, and was published by Human Rights Watch; a higher-resolution version is available at their website.