Emory International Law Review

Establishing a Positive Right to Migrate as a Solution to Food Scarcity
Douglas Stephens Notes & Comments Editor, Emory International Law Review; J.D. Candidate, Emory University School of Law (2015); B.A., University of Colorado Boulder (2007). The author wishes to thank Dr. Abdullahi An-Na'im, Dori Cohen, and Eli Burton for their assistance in the course of writing this paper.

Abstract

Using the lenses of refugee and human rights law, this Comment examines whether food scarcity creates a positive right to migrate, and if so, what its relationship is with states’ “largely unfettered domain of territorial sovereignty.” If there is a right to life under human rights law, then access to food is a corollary right of equal value and any hindrance to food access is a violation of that right, regardless of whether the cause is political, civil, economic, or social. Case studies from Paraguay and Somalia illustrate how neither current refugee law nor a traditional conception of human rights remedies the situation for populations migrating due to food scarcity. Instead, this Comment proposes that where an individual’s or a group’s rights are being violated due to food scarcity, and where the food scarcity cannot be readily remedied in situ, then that person or group has the right to migrate internationally in order to become food secure. However, the utility of casting a positive right to migrate in the human rights mold depends on a shift to a people-centric human rights approach that transcends national borders and runs counter to the Westphalian system of state sovereignty.

Introduction

Between 2011 and 2013, a total of 842 million people in developing regions suffered from chronic hunger. 1See Food and Agriculture Organization of the United Nations, Hunger Map 2013, [hereinafter Hunger Map] available at http://www.fao.org/hunger/en/. Chronic hunger, also referred to as “undernourishment,” is defined by the Food and Agriculture Organization of the United Nations as “a state, lasting for at least one year, of inability to acquire enough food, defined as a level of food intake insufficient to meet dietary energy requirements.” Food and Agriculture Organization of the United Nations, Hunger Portal, http://www.fao.org/hunger/en/. In 16 countries, the Food and Agriculture Organization found that food security had either not progressed at all or had deteriorated since 1990. 2Hunger Map, supra note 1. International conventions such as the Universal Declaration of Human Rights (“UDHR”) establish that everyone has a right to life and is entitled to a standard of living that provides for adequate health and wellbeing, including the right to food. 3Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) art. 25 (Dec. 10, 1948) [hereinafter UDHR]. Access to food is a corollary right of equal value to the right to life, and any hindrance to food access is a violation of that right, regardless of whether the cause is political, civil, economic, or social. 4Ajamu Baraka, “People-Centered” Human Rights as a Framework for Social Transformation, A Voice From the Margins (Dec. 10, 2013), www.ajamubaraka.com/the-human-rights-project-determined-by-the-needs-of-the-powerful/. In addition, the UDHR, as well as other human rights conventions like the Convention on Migrant Workers, establishes that everyone is entitled to freedom of movement within one’s own country and freedom to leave any country. 5UDHR, supra note 3, art. 13; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, U.N. Doc. A/RES/45/158, art. 8 (Dec. 18, 1990) [hereinafter Migrant Workers Convention]. The question then arises, what happens when these rights are in tension with fundamental principles of state sovereignty? If one cannot achieve an “adequate standard of living,” does one have the right to seek out that standard of living elsewhere, even if it is outside of one’s country of origin? Freedom to move within one’s country, or freedom to leave any foreign country, is not the same as a positive right 6A positive right is “[a] right entitling a person to have another do some act for the benefit of the person entitled.” Black’s Law Dictionary (9th ed. 2009). In other words, a positive right is ‘the freedom to do,’ as opposed to a negative right, which is ‘the freedom from.’ Id. to international migration.

Using the lenses of refugee and human rights law, this Comment examines whether food scarcity creates a positive right to migrate, and if so, what its relationship is with states’ “largely unfettered domain of territorial sovereignty.” 7Linda S. Bosniak, State Sovereignty, Human Right, and the New UN Migrant Workers Convention, in Widespread Migration: The Role of International Law and Institutions 86 Am. Soc’y. Int’l L. Proc. 623, 634 (1992). Arguably, closed borders for communities facing food scarcity can cause human rights violations by the migrants’ home state. In the absence of available local remedies, closed borders may prevent the vulnerable population from achieving the most basic minimum living standards recognized under customary international law 8See, e.g., UDHR, supra note 3, art. 25. and guaranteed by binding human rights conventions. 9International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]; see infra Part I.B. Conversely, migration without legal recognition or international protection leaves the vulnerable population susceptible to return to their country of origin and to the same violations that prompted migration in the first place. 10 See infra Part I.A. Migrants without legal recognition or refugee status are not subject to the principles of non-refoulment. See Int’l Org. for Migration, International Migration Law: Glossary on Migration, 44–45 (2004). Currently, the right to migrate is granted in response to severe human rights violations in the form of refugee law. 11Convention Relating to the Status of Refugees art. 1, 28 July 1951, 189 U.N.T.S. 137 [hereinafter Refugee Convention]. Refugees, however, are a narrowly defined category. 12A refugee is an individual who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Id. Additionally, there are persuasive arguments regarding the right to not be displaced and a new and growing body of legal and political thought on environmental refugees. 13See Maria Stavropoulou, The Right Not to Be Displaced, 9 Am. U. J. Int’l L. & Pol’y 689 (1994).

While refugee law addresses sudden, violent, or extreme deprivations, it does little to account for slow degradation of the environment or social, political, or economic changes that drive subsistence farmers from their lands and lead to international migrations. For example, in Paraguay, small family farms have slowly been taken over by large mono-crop operations run by transnational corporations. 14Int’l Org. Migration, Perfil Migratorio de Paraguay [Paraguay Migration Profile] 5 (Hugo Addone ed., 2011). [hereinafter Paraguay Migration Profile]. The result has been a loss of land for small farmers and an inability to produce enough subsistence crops or to compete in the marketplace, first leading to migration to internal cities and then to migration to international destinations like Buenos Aires. 15Id. at 19, 35. In contrast to the slow push in Paraguay, Somalis faced regional drought and famine in 2011. 16IOM Appeals for US$ 26 Million to Assist Victims of Famine and Drought in the Horn of Africa, Int’l Org. Migration (Aug. 5, 2011), http://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/iom-appeals-for-us-26-million-to-assist.html [hereinafter I.O.M. Appeals for US$ 26 Million]. As a result, more than 100,000 Somalis fled to Ethiopia and Kenya in a single year. 17Int’l Org. Migration, Migration Mapping Service between Somalia and Dadaab in Kenya Highlights Need for Better Protection of Drought and Famine Victims (Nov. 22, 2011), http://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/migration-mapping-service-between-somali.html. Neither the Paraguayan nor the Somali migrants qualified as refugees under international law. 18See infra Part II.

This Comment argues that neither current refugee law nor a traditional conception of human rights remedies the situation for populations migrating due to food scarcity. 19See ingra Part III. Instead, it proposes that where an individual’s rights or a group’s rights are being violated due to food scarcity, and where the food scarcity cannot be readily remedied in situ, 20In situ refers to actions or remedies available at the location where the food scarcity or infraction occurs. Determining when in situ remedies are not available is a fact specific inquiry, critical to determining which food shortages give rise to the right to migrate. See, e.g., infra Part II. then that individual or group has the right to migrate internationally in order to become food secure. Establishing a positive right to migrate in the face of food scarcity may solve the problem, but it also runs the risk of leading the international community to declare victory without substantive action or security for migrants fleeing food scarcity (“food migrants”). The utility of casting a positive right to migrate in the human rights mold depends on a shift to a people-centric—as opposed to a state-centric—approach. This is because the current human rights framework is ill-equipped to handle solutions that transcend national borders and run counter to the Westphalian system of state sovereignty and nonintervention. 21Claudio Grossman & Daniel D. Bradlow, Are We Being Propelled Towards A People-Centered Transnational Legal Order?, 9 Am. U. J. Int’l L. & Pol’y 1, 1 (1994). The Peace of Westphalia in 1648 ended both the Eighty Years’ War and Thirty Years’ War and established the concept of Westphalian Sovereignty: that nation-states have complete sovereignty over their territory with no role for outside actors to influence domestic affairs. Peace of Westphalia, Encyclopedia Britannica, http://www.britannica.com/EBchecked/topic/641170/Peace-of-Westphalia (last visited Jan. 22, 2014). Further, a people-centric approach to human rights would accept non-state actors and regional actors, such as individuals, community groups, religious organizations and non-governmental organizations, as bound entities within the human rights framework and empower those entities to protect and facilitate freedom of movement for food migrants. 22Within the current human rights framework—where rights, like political power, is treated as zero-sum—a positive right to migrate due to food scarcity could create a conflict of rights between the rights of the migrants and the rights of the already-present, domestic population. A full analysis of this conflict of rights is beyond the scope of this Comment. However, holding all human rights as equal would naturally limit the rights of the migrants at the point in which their migration infringes upon the rights of the local population. Additionally, a people-centric approach to human rights eliminates the top-down nature of human rights and may limit or completely remove the zero-sum conflict. See infra Part I.C.

Part I discusses the current state of refugee law and human rights law as the lens through which to assess the plight of food migrants. Part II examines the Paraguayan migration to Argentina and the Somali migration to Kenya following the 2011 famine. Both case studies are used to delineate the existence and limits of the right to migrate. Part III synthesizes the law and the case studies, and concludes that neither refugee nor human rights law, as they currently stand, provide protection for food migrants. However, establishing a positive right to migrate for communities facing food scarcity, in conjunction with a reconceptualization of the human rights framework, provides a remedy.

I. International Law, Migration, and Human Rights

Many bodies of law relate to and govern international migration, including domestic law, 23See, e.g., 8 U.S.C. § 1101. conventions on refugees, 24See, e.g., Refugee Convention, supra note 11. conventions on labor and migrant workers, 25See, e.g,, Migrant Workers Convention, supra note 5. regional conventions, 26See, e.g., American Convention on Human Rights, 22 Nov. 1969, 1144 U.N.T.S 123 (1979) [hereinafter ACHR]. and human rights conventions. 27See, e.g., UDHR, supra note 3. In order to evaluate the feasibility and implications of a positive right to migrate due to food scarcity, one must have a general understanding of the international conventions governing the principles of migration. Casting a positive right to migrate as a remedy to food scarcity raises the question: what type of right? Though many nations have domestic Bills of Rights, 28See, e.g., art. 18 Constitución Nacional [Const. Nac.] (Arg.). these only provide rights to citizens and legal residents of that state, and since the problem at hand is of a global nature, an international solution is needed. Both refugee law and human rights law provide potential international frameworks for a positive right to migrate. Refugee law governs the international migration of specific vulnerable populations. 29See, e.g., Refugee Convention, supra note 12. Human rights law guarantees a particular relationship between the state and all people within its jurisdiction—a relationship that is violated if the people face malnutrition. 30International Covenant on Civil and Political Rights, art. 4, 11, 16 Dec. 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

Part I explores the legal frameworks currently in existence, under which a positive right to migrate may be evaluated. First, Part I.A. lays the groundwork, discussing international conventions that establish a limited right to freedom of movement. Part I.B. discusses refugee law and efforts to expand the definition of refugees founded in the “right to not be displaced” and the concept of “environmental refugees.” Part I.C. addresses key internal conflicts of human rights law, as well as arguments that reconceiving the human rights discourse remedies those conflicts.

A. International Law and Migration

Numerous international conventions, both regional and global, contemplate a fluid global population. Indeed, freedom of movement is firmly established by international law and norms. 31UDHR, supra note 3, art. 13. For example, in the UDHR, the United Nations affirmed “[e]veryone has the right to freedom of movement and residence within the borders of each State.” 32Id. The UDHR further provides: “[e]veryone has the right to leave any country, including his own, and to return to his country” but it does not provide a right to move into any other country. 33Id. The elevation of a limited freedom of movement to a human right has been affirmed in numerous other international conventions. 34See, e.g., ICCPR supra note 30, art. 12. Twenty-eight years after the General Assembly adopted the UDHR, the International Covenant on Civil and Political Rights (ICCPR) reaffirmed the freedom of movement, stating: “everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” 35Id.

Unlike the UDHR, the ICCPR is an international treaty that is binding on those countries that ratify it, but its guarantee of freedom of movement is restricted only to those individuals lawfully present in the country. 36Id. Further, the extent to which the freedom of movement is binding international law or that international actors obey the mandates, is debatable. For example, the United States never ratified the regional human rights convention for the Americas but did ratify the ICCPR over twenty years after it was adopted by the United Nations. 37Jimmy Carter, U.S. Finally Ratifies Human Rights Convention, The Carter Center (June 29, 1992), http://www.cartercenter.org/news/documents/doc1369.html. The U.S. is among many countries where treaties are not self-executing. 38Id. That is, a presidential signature on a treaty does not create a legally binding obligation unless the Senate ratifies the treaty. 39U.S. Const. art. II, § 2. In the case of the ICCPR, as with many human rights treaties, the Senate ratified with numerous reservation, abrogating the bulk of the treaty obligations. 40See Carter, supra note 37.

Regional conventions have also explicitly promoted the freedom of movement. Under the American Convention on Human Rights (ACHR), article 22, titled “Freedom of Movement and Residence,” provides for freedom of movement as well as the ability to seek asylum status, but does not guarantee receiving it. 41ACHR, supra note 26. The grant of asylum is legal recognition of refugee status, awarded only when the applicant demonstrates “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion.” See Refugee Convention, supra note 11, art. 1.

Noticeably absent from these documents is an affirmation of a positive right to migrate. While the conventions contemplate a freedom of movement, they are careful to set aside exceptions allowing for state sovereignty over entrants. 42See, e.g., ACHR, supra note 26. For example, the ICCPR states “the [rights to freedom of movement] shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others. . . .” 43ICCPR, supra note 30, art. 12(3). The ACHR has a nearly identically worded provision. 44ACHR, supra note 26, art. 22. These broadly worded provisions allow states to shirk the rights provided in the binding human right conventions, as illustrated by the U.S.’s 22 year ban on HIV-positive immigrants. 45Julia Preston, Obama Lifts a Ban on Entry into the U.S. by H.I.V.-Positive People, N.Y. Times, Oct. 31, 2009, at A9.

Despite reservations by actors like the U.S., 46See Carter, supra note 37; see also text accompanying note 37. the international community has continually assumed a propensity for international movement and migration, as demonstrated by incorporating the right to freedom of movement into human rights and labor conventions such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (“Convention on Migrant Workers”). 47See UDHR, supra note 3; Migrant Workers Convention, supra note 5; ICCPR, supra note 30; ACHR, supra note 26. The Convention on Migrant Workers took eleven years to draft 48Bosniak, supra note 7, at 635. and concerns the protection of migrants once they leave their home country. 49The Migrant Workers Convention went into force in 2003, and by January 2014, 47 states had become parties by ratification or accession. Migrant Workers Convention, supra note 5. Like the UDHR, the Convention on Migrant Workers explicitly provides for the limited rights to leave any state, including the migrants’ state of origin, and to return to their state of origin. However, neither the UDHR nor the Convention on Migrant Workers expressly provides a right to enter a state. 50Id. art. 8. Nevertheless, the Convention on Migrant Workers implies a much larger right to free movement by providing human rights protections for both regular and irregular 51“Regular immigrant” refers to those immigrants in a country with legal documentation and permission. “Irregular immigrants” is used instead of the pejorative “illegal immigrant” to describe migrants who have not had their status regularized by the host state. See id. art. 5. migrants. 52Migrant Workers Convention, supra note 5. That is, despite potential violations of domestic law and state sovereignty, migrant workers are guaranteed protections regardless of their means of entry. 53Migrant Workers Convention, supra note 5, art. 5, 7. The Convention on Migrant Workers is distinct from previous International Labor Organization (ILO) conventions in that it extends protections beyond the migrant workers to their families 54Bosniak, supra note 7, at 635. and it includes “the entire panoply of civil, social, economic and cultural rights.” 55Id. at 636.

Early analysts recognized that the definition of terms like “migrant worker” and “family member” would determine the real effect of the instrument and its impact on irregular migrants. 56Id. Despite the name and nominally limited purpose, the convention protects a vast majority of people residing regularly or irregularly in countries where they are not legal residents because it covers everyone in the country in which they reside, so long as they have worked at any point in that country. 57Id. These political, social, economic, cultural, and educational rights, as well as treatment equal with that of citizens, 58Migrant Workers Convention, supra note 5, arts. 14, 16–19, 22, 23, 25, 26, 28, 30, 70. are granted regardless of whether employment was the purpose of their migration. 59Bosniak, supra note 7, at 636. However, like earlier international instruments, the convention attempts to side step the fundamental tension in international law by explicitly retaining for States their sovereign power to control the admission of migrants. 60Migrant Workers Convention, supra note 5, art. 79. Article 79 reaffirms states’ authority to maintain control over immigration and admission policies. 61Id. Other articles require states to take measures to end clandestine migration and stop the employment of irregular migrants. 62Bosniak, supra note 7, at 637. The convention also makes it clear that states are not obligated to regularize the migrants’ status, 63Status in the immigration context refers to the legal basis on which an immigrant is present in a country. Regularization of status refers to the legal procedures and processes of switching from irregular (i.e. illegal) status to a legally recognized status such as temporary worker or legal permanent resident. See e.g., Am. Immigr. Law. Ass’n, Navigating the Fundamentals of Immigration law: Guidance and tips for Successful Practice, 411–14 (Jill Marie Bussey et al. eds., 2014). even while guaranteeing the rights previously mentioned. 64Migrant Workers Convention, supra note 5, art. 35. The internal tension of the Convention on Migrant Workers is clear. Irregular aliens are symbols of violated state sovereignty. 65Bosniak, supra note 7, at 637. Nevertheless the Convention on Migrant Workers requires states to provide extensive labor, civil, and cultural rights to irregular immigrants “while purporting to acknowledge the states’ vital interests in territorial integrity.” 66Id.

As the Convention on Migrant Workers and similar instruments struggle with the tension between state sovereignty and extending human rights to all migrants, they create a strange position for a migrant. On the one hand, a migrant is free to leave their country of origin, but on the other, the migrant’s ability to enter a different country may happen only at the permission of the receiving state. A more accurate term granted by these international instruments may be “freedom of departure” as opposed to freedom of movement, since the legal movement of migrants is fundamentally constrained by the willingness of states to receive the migrants. 67See e.g. Migrant Workers Convention, supra note 5, art. 79. Further, the freedom of movement is not directly tied to the cause of migration but to the domestic and international legal framework, though the reasons for migration may have serious impacts on the obligation of receiving states. 68See e.g. Refugee Convention, supra note 11, art. 26. For instance, countries that have ratified the Convention Relating to the Status of Refugees (“Refugee Convention”) have assumed an obligation with the United Nations High Commissioner for Refugees (UNHCR) to receive refugees in accordance with the Refugee Convention and their domestic laws 69Id., art. 35. but have assumed no obligation for individuals that fall outside the scope of the convention, regardless of those individuals’ humanitarian need. 70See Refugee Consortium, infra note 232 and accompanying text at 34 (discussing humanitarian imperative of assisting Somali migrants during the 2011 famine).

B. Refugee Law

Refugee law provides protections for certain migrant populations that face persecution. 71See Refugee Convention, supra note 11, art. 1. The Convention Relating to the Status of Refugees (“Refugee Convention”) defines who qualifies as a refugee:

[A]ny person who . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. 72Refugee Convention, supra note 11, art. 1. The concept of refugee was originally introduced to handle the displaced populations resulting from World War II, and restricted refugee status to populations displaced prior to January 1, 1951. The definition was later expanded to include all internationally displace individuals who met the persecution requirements. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (entered into force 4 Oct. 1967).

The definition does not account for “mere victims” of violence or natural disasters 73See Thomas Alexander Aleinikoff, et al., Immigration and Citizenship: Process and Policy, 798 (7th ed. 2012). and, as a result, has spawned efforts to expand the scope of protection to include anyone who has lost the prerequisites for sustaining life 74Aristide R. Zolberg, Astri Suhrke, & Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (1989) in Thomas Alexander Aleinikoff, Davi A Martin, et al., Immigration and Citizenship: Process and Policy 797 (7th ed. 2012). including expansions to provide the “right to not be displaced” 75Stavropoulou, supra note 13, at 689. and “environmental refugees.” 76See Sumudu Atapattu, Climate Change, Human Rights, and Forced Migration: Implications for International Law, 27 Wis. Int’l L.J. 607 (2009); Gil Marvel P. Tabucanon, Pacific Environmental Migration in a Warming World: Is There an Obligation Beyond State Borders?, 14 Vt. J. Envtl. L. 549 (2013). Current refugee law does not provide protection for food migrants because they do not meet the persecution requirement. 77Refugee Convention, supra note 11, at 28. Expansions geared toward the “right to not be displaced” focus on in situ remedies, such as preventing governments from displacing parts of their population for development projects, 78Stavropoulou, supra note 13, at 701. but in situ remedies do not help in situations where there is no accountable actor controlling the drivers of migration 79See infra Part I.B.ii. and is, therefore, an inadequate focus for food migrants. Expanding the concept of refugees to include environmental refugees helps in some but not all situations leading to food migration. 80See Atapattu, supra note 76, at 631 (noting that the environmental refugee category would exclude groups where a causal link between climate change and environmental degradation cannot be shown); see also Environment and Heritage: Soil Degradation, New S. Wales Gov’t (Sept. 26, 2013), http://www.environment.nsw.gov.au/soildegradation/; Sara J Scherr & Satya Yadav, Land Degradation in the Developing World: Implications for Food, Agriculture, and the Environment to 2020, Int’l Food Pol’y Res. Inst. (1997) (recognizing land degradation as one cause of food scarcity). Part I.B.i addresses current refugee law and the “right to not be displaced” while Part I.B.ii explores possible expansions of the refugee definition to include environmental refugees.

1. The Refugee Law and “The Right To Not Be Displaced”

The line between refugees and the broader class of international migrants is notoriously difficult to draw. 81Bosniak, supra note 7, at 634. The definition of refugees has both objective and subjective elements: the fear of persecution is a subjective measure of the individual experience, but actual persecution must exist objectively. 82Nicole Angeline Cudiamat, Displacement Disparity: Filling the Gap of Protection for the Environmentally Displaced Person, 46 Val. U. L. Rev. 891, 922, 924 (2012). A migrant’s ability to qualify as a refugee, and to receive the legal protections that refugee status affords, is significantly constrained by the five categories of persecution. 83See Refugee Convention, supra note 11, art. 4. Problematically, the common perception of refugees—individuals fleeing famine or a war zone—often do not qualify for legal refugee status because they do not have an objective fear of personal persecution under one of the five categories. 84See Aleinikoff, supra note 73, at 798. For example, in 1984, 40% of Malians migrated out of Mali. However, because drought spurred the migration and the Malians did not have fear of being persecuted for reasons of race, religion, nationality, social group, or political opinion, they did not qualify as refugees under the traditional definition. 85Diana Cartier, Mali Crisis: A Migration Perspective, Int’l Org. Migration 6 (2013). Similarly, Malians that fled the country in 2012–2013 due to fighting between the Tuareg secessionists and government forces did not qualify as refugees unless they could demonstrate a credible fear of persecution due to political opinion, religion, or other protected grounds. 86Id. at 11. Fleeing due to fear of generalized violence does not establish grounds for refugee status under the Refugee Convention. 87See Aleinikoff, supra note 73, at 798. In other words, the Refugee Convention regime does not account for “mere victims.” 88Zolberg et al, supra note 74, at 797.

Beyond individuals fleeing from general violence, situations in which “economic prerequisites for sustaining life have suddenly been removed equally constitute life-threatening violence” and, some argue, should also be considered as refugee generating conditions. 89See id. This would include victims of structural violence that causes starvation or victims of drought or famine, regardless of whether compounding effects of war are present. 90See id. A close reading of international instruments seems to favor the interpretation that states have an obligation to assist in these situations. Article 2 of the ICESCR requires states to “take steps, individually and through international assistance and co-operation . . . to the maximum of [their] available resources . . . including particularly the adoption of legislative measures.” Combined with article 11, which recognizes a right to an adequate standard of living including access to food, one could argue that states have a moral and arguably legal obligation to provide assistance to “mere victims”. ICESCR, supra note 9, arts. 2, 11. Recognizing these deficiencies, some regional conventions have further expanded the breadth of refugee law. 91O.A.U. Convention Governing the Specific Aspects of Refugee Problems in Africa, art. I, Sept. 10, 1969, 1001 U.N.T.S. 46 [hereinafter O.A.U. Refugee Convention]. For example, the African Union grants the status of refugee to internationally displaced people resulting from external aggression or “events seriously disturbing public order in either part of the whole of his country of origin or nationality.” 92Id. The Organization of American States similarly expanded its definition of refugee to people who fled their country because they were threatened by “generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” 93Cartagena Declaration on Refugees, Nov. 22, 1984, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1, art. 3 (1984–1985), 17 Apr. 1998.

The counter argument against such a broad expansion of refugee law is that asylum and refugee status is a scarce political resource within the receiving country, which should be preserved for victims of persecution. 94The Refugee Convention is about the status and treatment of refugees that a state has chosen to treat as lawfully present and does not provide an individual right to asylum. Refugee status does not guarantee a right to permanent residence or a range of other rights guaranteed to asylum recipients but in practice the nonrefoulment obligation (not expel or return a refugee to territories where his life or freedom would be threatened on account of the five protected categories) creates a de facto asylum status with all the entitlements enumerated in the Refugee Convention. The concern is over states losing control over admission and permanent residence. David A. Martin, The Refugee Concept: on Definitions, Politics, and the Careful Use of a Scarce Resource (1991) in Thomas Alexander Aleinikoff, David A. Martin, et al., Immigration and Citizenship: Process and Policy 804–06 (7th ed. 2012); Refugee Convention, supra note 11, art. 33. Under this theory, drivers of migration other than persecution are best remedied in situ and should not be grounds for refugee status. 95Martin, supra note 94, at 804–06. In a similar vein, Maria Stavropoulou, noted immigration and refugee scholar, argues that there exists a qualified human right not to be displaced. 96Stavropoulou, supra note 13, at 89. Displacement in this context is defined as forced, involuntary movement of people from their home or habitual residence. 97Id.; Refugees and Development 15 (Ernst Boesch et al. eds., 1983). Stavropoulou argues that the right not to be displaced fulfills seven key requirements necessary to be considered a human right, including being a fundamentally important social value, relevancy throughout the world, and consistency of existing law without repetition. 98The other requirements are (1) eligibility for recognition as an interpretation of the U.N. Charter, reflection of customary law, or declaration of general principles of law; (2) cable of achieving a high degree of international consensus; (3) compatibility with the general practice of states; and (4) is precise enough to give identifiable rights and obligations. Stavropoulou, supra note 13, at 694; Philip Alston, Conjuring Up New Human Rights: A Proposal for Quality Control, 78 Am. J. Int'l L. 607, 615 (1984). While this right addresses a significantly broader population than the Refugee Convention, it narrowly focuses on the countries of origin. The problem with maintaining narrow grounds for refugee status by arguing for in situ remedies and the right not to be displaced is that events that cause displacement are often beyond the control of the home state or any accountable political entity. 99See infra Part I.B.2. Even if the right not to be displaced can be defined clearly enough to be applied, it does not provide a remedy for the millions who are displaced but do not qualify as refugees. As such, an alternative approach is needed to provide a remedy for non-refugee displaced persons. One possibility is to expand the definition of refugee to include environmental refugees.

2. Environmental Refugees As An Emerging Category

Environmental refugee refers to a group whose right not to be displaced has been violated due to an environmental cause. 100Atapattu, supra note 76, at 608. Long-term environmental degradation caused by growing populations, overuse of land, and poor farming is “becoming the most pervasive and problematic form of forced migration to occur.” 101Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Enwrl. L.J. 480, 484 (1998); Brooke Havard, Seeking Protection: Recognition of Environmentally Displaced Persons Under International Human Rights Law, 18 Vill. Envt’l L.J. 65, 69–70 (2007). Scientists now estimate that millions of people will be displaced from their homes because of climate change in the coming century. 102Atapattu, supra note 76, at 636. As many as 25 million displaced people will result from environmental degradation alone. 103Cooper, supra note 100, at 484; Havard, supra note 101, at 70. Indeed, large numbers of people around the world have already been displaced for environmental reasons, including the Yanomani in Brazil, Ogoni in Nigeria, and Bhopal in India. 104Atapattu, supra note 76, at 623; Dana Zartner, Falstrom, Stemming the Flow of Environmental Displacement: Creating a Convention to Protect Persons and Preserve the Environment, 13 Colo. J. Int'l Envtl. L. & Pol'y 1, 3 (2001). However, despite the growing recognition of the environment’s role in forced migrations, there is minimal to no legal protection for people displaced because of environmental damage, mostly because of the difficulty in defining and prohibiting the actions that cause environmental displacement. 105Stavropoulou, supra note 13, at 690. Consider the daunting task of defining and prohibiting all of the global factors that contribute to climate change and the subsequent rising sea levels; see Pauline Kleingeld, Kant’s Cosmopolitan Law: World Citizenship for a Global Order, 2 Kantian Rev. 72, 84 (1998). See generally Tabucanon, supra note 76.

Typically, environmental refugees arise from three situations: desertification, 106Desertification refers to the slow but relentless encroachment of the deserts into previously arable land due to climate change and human-caused environmental degradation. Richard Black, Environmental Refugees: Myth or Reality? 4 (UNHCR, Working Paper No. 34, 2011). rising sea levels, 107Rising sea levels will make coastal and low lying islands uninhabitable and displace populations currently living in these regions. Tabucanon, supra note 76, at 564. and environmental conflict. 108Environmental conflict “is the notion that environmental degradation is increasingly at the root of conflicts that feed back into refugee movements.” Black, supra note 106, at 8. The idea of environmental refugees has been gaining traction. In 1992, the International Organization for Migration (IOM) drew distinctions between different categories of environmental refugees, contrasting emergency situations from slow onset situations; between temporary, extended, and permanent departure from homelands; and between internal and international refugees. 109Id. at 2. Subsequently, there have been numerous proposals to adopt a new Protocol on the Recognition, Protection, and Resettlement of Environmental Refugees. 110Frank Biermann & Ingrid Boas, Preparing for a Warmer World: Towards a Global GovernanceSystem to Protect Climate Refugees, 10 Global Envtl. Pols. 60, 79 (2010).

Critics of the environmental refugee category note that it would exclude a large number of victims of environmental degradation where the causal link between degradation and climate change cannot be shown. 111Id. at 631. These critics argue that the legal vacuum regarding environmental refugees should be addressed generally, but it is not advisable to create an entirely new and separate legal regime. 112Id. at 636. Others contest the general idea of environmental refugees as an unhelpful and intellectually unsound category. 113See generally Black, supra note 106, at 1. By definition refugee status requires persecution and therefore a prosecutor; the implication is that if Environmentally Displace Persons or Famine victims were to qualify as refugees the environment would have to be recognized as the persecuting agent. See Cudiamat, supra note 82, at 925. They view the academic case as weak because there are various explanations for migration and most significant studies have failed to demonstrate a linkage between environmental degradation and migration. 114See Black, supra note 106, at 2–3.

Richard Black—a noted Geographer, who is head of the School of Global Studies at the University of Sussex and Co-Chair of the Sussex Centre for Migration Research—ddisputes the premise of desertification as a cause of environmental refugees. 115Id. at 5. Black looks to two frequently cited regions, the central Mexico and the Sahel. Id. He argues that, in Mexico, statistics do not show a correlation between emigration and aridity (desertification), and that there is no study showing that arid areas are necessarily degraded. Id. As for the Sahel, Black argues that “[f]actors such as the decline of markets for traditional cash crops . . . the development of Senegal’s groundnut basin, and subsequent mechanization of agriculture in the delta provide additional and more recent motivations to move out of the middle and upper parts of the Senegal River Valley. Moreover, such conclusions are not limited to the western Sahel, but can be extended across the continent.” Id. Black also disputes the idea of environmental conflict by noting that most recent wars, like Iraq and the Congo, are more about controlling rich resources than about resource degradation. 116See id. at 8–9. He does concede, however, that in some instances, such as Somalia, a case can be made that environmental degradation is one of the root causes of the conflict. 117“[I]n some cases, and particularly in the ‘complex political emergencies’ of the Great Lakes, Sierra Leone/Liberia, and Somalia, environmental issues can be seen to have some relevance in the development of hostilities, and a case can be made that environmental degradation forms an important root cause of the conflict.” Id. at 9. Black views the idea of environmental refugee as a “seductive” creation of Northern policy makers who want to “restrict asylum laws and thus invented [the term environmental refugee] at least in part to depoliticize the causes of displacement, so enabling states to derogate their obligation to provide asylum.” 118Id. at 10–11. This analysis, however, ignores the fact that the literature mostly argues for an extension of asylum to environmentally displaced persons. 119Id. at 11. Black’s refutations are useful in demonstrating the difficulties presented by an effort to expand the definition of refugee. However, they are unpersuasive because they do not account for the fact that environmental degradation and climate change have undoubtedly resulted in displaced populations, 120Atapattu, supra note 76, at 607. despite the difficulty of isolating environmental changes as a driver for migration in many circumstances. 121Id. at 630–31.

The discussion of environmental refugees is enlightening for two reasons. One, it illustrates one attempt at expanding the refugee concept from strict persecution of individuals to a broader relief for “mere victims” of rising sea levels, environmental degradation, and environmental conflict. 122See Black, supra note 106, at 8. The subtle underlying discourse involves the tension of the individual’s freedom of movement and the sovereign state’s prerogative to close its borders. 123Martin, supra note 94, at 804–06. Assigning refugee status to a group creates a moral and legal imperative to admit the migrant. 124Id. Second, environmental degradation is one cause of food scarcity 125New South Wales Government, Environment and Heritage: Soil Degradation (Sept. 26, 2013), . Land degradation—such as desertification—results from improper agriculture, pastoral, or industrial use and is often exacerbated by climate change. Id. Land degradation results in reduced yields and, if left un-remedied, will lead to abandonment of the degraded land. See generally Sara J Scherr & Satya Yadav, supra note 80. and the resulting migration. These migrants have been forced from their homes and, therefore, represent an obligation by states to receive migrants who’s right not to be displaced has been violated. 126See e.g., ICCPR, supra note 30, art. 6.

C. Human Rights

Vulnerable populations facing food scarcity are unable to achieve the most basic human rights, such as the right to life and the right to adequate food. 127See infra Part II. Creating a new human right—such as the positive right to migrate—may offer a limited solution because it establishes both a moral foundation and international legal standard to guide international behavior. 128Andrews, International Protection of Human Rights 6 (1987) (describing how human rights law translates moral-laden natural law into prescriptive statutory law). However, human rights have a complex history fraught with internal tension and cultural dissonance. 129See Makau Matua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 (2001) [hereinafter Savages, Victims, and Saviors]. The viability of a human rights solution hinges on reframing the dialogue from a state-centric to a people-centric approach. That is, it should move away from an explicit focus on constraining state actions, to an approach that focuses on the general population to establish, enforce, and obey, human rights obligations. 130See Baraka, supra note 4, at 204; Makau Matua, The Transformation of Africa. A Critique of the Rights Discourse, in International Human Rights Law in a Global Context (Felipe Gomez Isa & Koen de Feyter, eds., 2009) [hereinafter The Transformation of Africa].

1. Evolving Concepts of Human Rights Law

Human rights are, tautologically, rights that every human is entitled to enjoy as a function of his or her humanity. 131Abdullah Ahmed An-Na’im, Introduction: Expanding Legal Protection of Human Rights in African Contexts, in Human Rights Under African Constitutions: Realizing the Promise for Ourselves 3 (Abdullah Ahmed An-Na’im ed., 2003). Most law can be described as functioning on two congruent levels: prescriptive rules of conduct and procedural rules. 132Andrews, supra note 128, at 5. Similarly, rights exist on two corresponding levels. 133See id. The correlative of prescriptive procedural rules and duties are statutes and case law. 134Id. The prescriptive laws stem from underlying positive rights—divine, natural, or ideological in origin. 135Id. For instance, the law “you shall not kill” is both a prescription on the act of killing and the grant of a positive right to not be killed. The second level is the higher moral founding of these prescriptive laws. Id. The general concept of human rights comes from this second, higher level of natural law. 136See Savages, Victims, and Saviors, supra note 129, at 202. To take two examples from the UDHR: Article 1 establishes that “[a]ll human beings are born free and equal” and Article 21 states that everyone “has thethethesthethe right to take part in the government of his country.” UDHR, supra note 3, arts. 1, 21. The equality of human beings or the superiority of democratic government are clear examples of rights do not have their origins in codified prescriptive laws but in moral value judgments. However, the effectiveness of protection depends directly on the liberties established in the relevant prescriptive law. 137Andrews, supra note 128, at 6. In the United States, the equality of human beings was not achieved until prescriptive laws—namely the 13 and 14 amendments and civil rights legislation—afforded protection to that right. See id.

Though not formulated as “human rights” until the creation of the UDHR in 1948, there have been multiple historical stages of development of human rights. 138 Id. at 8; see e.g., John Locke, Two Treatises of Government 76 (Thomas J. Cook ed., 1947) (proposing a social contract between the state and citizens). Beginning in the Enlightenment, European philosophy was focused on economic and political rights. 139Andrews, supra note 128, at 8. These first generation rights were mostly negative obligations for the government not to interfere with individual liberties. 140Id. They eventually expanded to include standards of justice, freedom of trade, and expression. 141Id. Second generation human rights focused on rights of working class, including rights of assembly, suffrage, antidiscrimination and the extension of rights to members of various classes, races, and genders. 142Id. These rights rose out of the industrial revolution and social unrest of the late 19th and early 20th century. These second generation rights created a positive duty on governments to act in order to ensure the realization of these rights. 143Id. The third generation of human rights development is the ongoing inclusion of socio-economic rights, such as protection for the elderly, unemployed, destitute, and infirm, and the obligation of providing education, and healthcare. 144Id. However, many countries have “balked at enshrining these as fundamental human rights.” 145Id. These third generation rights place an emphasis on solidarity and are most closely associated with collectives, as opposed to the individual emphasis of first generation Western rights. 146Id.

Within the category of third generation rights, human rights law establishes that everyone is entitled to an adequate standard of living. 147ICESCR supra note 9, art. 11. The UDHR states that it is the right of everyone to obtain a standard of living “adequate for the health and well-being of himself and of his family, including food.” 148UDHR, supra note 3, art. 25. It is important to note that the UDHR is a General Assembly resolution and is not a legally binding instrument: “[i]t includes rights which have only limited legal substance in international law . . . and it is more a statement of principle than a treaty.” 149Andrews, supra note 128, at 11. Nevertheless, in identical language, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which is a binding agreement, affirms the rights to health and food. 150ICESCR supra note 9, arts. 11, 12. The ICESCR goes further to state that it is “the fundamental right of everyone to be free from hunger,” and calls for international cooperation in order to improve production, conservation, and distribution of food and to educate on nutrition, as well as reforming agrarian systems to utilize efficiently and develop natural resources. 151Id. art. 11.2(a). The ICESCR also calls for international cooperation to balance food import and export to “ensure and equitable distribution of world food.” 152 Id. art. 11.2(b). This seems to recognize the fact that food scarcity, including famines, is a preventable man-made occurrence resulting from poor distribution and not from natural disasters. 153 See infra Part II.A; Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation 2 (1981) (Arguing that famines result from people not having enough food to eat due to changing entitlements, not due to actual food scarcity in the market). The ICESCR also implies that each state has a duty to monitor food supplies and preventing scarcity, a duty clearly articulated in later conventions. 154See Food Assistance Convention, arts. 2, 4, C.N.215.2012.TREATIES-XIX.48 (May 9, 2012); see also infra Part III.

The human rights discourse emphasizes the conflict of political philosophies and pits the first and second generational rights of the individuals against the third generational principle of collective solidarity. 155Andrews, supra note 128, at 23. Nevertheless, there appears to be general agreement on a few core human rights. 156Id. at 26. These accepted human rights include the rights to life, liberty, freedom from slavery, freedom from torture, due process, freedom of thought, freedom of speech, and freedom of assembly. 157Id. The right to life is arguably the most fundamental and universally accepted of all human rights. 158Id.; see e.g., Convention on the Prevention and Punishment of the Crime of Genocide (New York, 9 Dec. 1948) 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) (144 states are parties to the convention). What remains disputed is the universality of human rights—to what extent there should be a “margin of appreciation” that allows treatment of even these core human rights to vary between different communities 159Andrews, supra note 128, at 24. —and if human rights can be validated through a state-centric approach. 160See Baraka, supra note 4.

2. The Movement Toward People-Centric Human Rights

The value of international human rights standards, aside from helping establish customary international law, is that they are legally binding and universally valid on all states that have ratified the relevant treaty. 161An-Na’im, supra note 131, at 1. Human rights law is state-centric, focusing on constraining state action and relying on states to self-regulate and enforce the international doctrine. 162Id.; see also Savages, Victims, and Saviors, supra note 129, at 211 (noting that the UDHR represented “the first time [that] the major powers drew a line demarcating impermissible conduct by states toward their own people and created the concept of collective responsibility for human rights”). The law affords fundamental rights and freedoms to all persons subject to the jurisdiction of the state, making human rights “a matter of state responsibility, [which] means that an injury or harm is not a human rights violation unless the state is implicated in its happening.” 163An-Na’im, supra note 131, at 1. Human rights law is composed of binding treaties that are negotiated by states that intend to respect the rights set forth. 164Savages, Victims, and Saviors, supra note 129, at n.76. For example, the ICCPR sets forth the rights of the individual and then declares the intent to bind the parties, stating: “[e]ach State Party. . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Id. (quoting ICCPR, supra note 30, art. 2).

The state-centric structure of human rights is cogent since all of international law is organized around the fundamental concept of state sovereignty. 165Claudio Grossman & Daniel D. Bradlow, supra note 21, at 1 (1994). Sovereignty is defined as the principle that each state is the master of its own territory except where limited by treaties or international law. Id. However, a state-centric approach is ill-equipped to handle human rights for two reasons. First, socio-economic interdependence and political interactions now regularly transcend national borders. 166See id. at 1–2. Since the enshrinement of human rights in the UDHR, there has been a marked growth of international activities—like global climate change and refugees—that cannot be regulated by a single state. 167Id. at 6. Additionally, there has been a staggering growth in international actors, such as international non-governmental organizations, and transnational corporations, which are not recognized by the state-centric international human rights law. 168Id. at 7. Second, human rights should represent the rights of all humans, but the formalization of human rights in the state-centric system resulted in a few powerful states bequeathing their rights framework to the rest of the world, 169See Austen L. Parrish, Rehabilitating Territoriality in Human Rights, 32 Cardozo L. Rev. 1099, 1109 (2011). as opposed to the bulk of humanity declaring these (or other) rights for themselves. 170See Baraka, supra note 4. The result is a lack of universal acceptance that threatens to cripple the human rights system. 171The Transformation of Africa, supra note 130, at 899.

Because the foundation of human rights lies in a moral grounding, and because there are few rules that have received universal moral acceptance, there is no universal agreement on the exact content of Human Rights. 172Andrews, supra note 128, at 6; Savages, Victims, and Saviors, supra note 129, at 206 (“What, for example, are fundamental human rights, and how are they determined? Do such rights have cultural, religious, ethical, moral, political, or other biases?”). Nevertheless, for most of the human rights establishment the universality of human rights—including the assumptions, values, and legal framework—is seen as “a natural evolution of progressive global relations” and is uncontested. 173Baraka, supra note 4. In many ways this is a gross mischaracterization that ignores the influences of power, race, and ideology. 174Id. The body of human rights law is fundamentally Eurocentric and stems from a time when Western, white supremacist, colonial, capitalist, and patriarchal states dominated the international community. 175Id.; Savages, Victims, and Saviors, supra note 129, at 204.

As noted human rights scholar Makau Mutua points out, it is “[p]recisely because of this cultural and historical context, [that] the human rights movement’s basic claim of universality is undermined.” 176Savages, Victims, and Saviors, supra note 129, at 204–05. For example, only “individuals who have suffered specific abuses arising from the state’s transgression of internationally recognized human rights [such as] an individual subjected to torture by a state are treated as victims, “whereas a person who dies of starvation due to famine or suffers malnutrition for lack of a balanced diet is not regarded as a human rights victim.” 177Id. at n.11. Matua highlights an important element of the current human rights regime that drives at the heart of violations faced by food migrants: the system first defines who is a victim of human rights abuses and then seeks to reconstruct societies to reduce the number of victims only of the type that it recognizes. 178Id. at 203. This narrow definition of victim highlights the second-class status of economic and social rights within the human rights discourse. 179Id. at n.11.

The Western traditions emphasize political and civil liberties of the individual, as well as the right to life and property. 180Andrews, supra note 128, at 7. However, for people lacking a fundamental means of survival, traditional Western rights pale in significance to rights that guarantee the basic necessities. 181Id. at 8. Therefore, it may be “morally repugnant” to place the Western rights above economic or social rights. 182Id. at 7. This distinction shows the sharp divide between the West, or global North, and the global South on the content of human rights. 183 Id.

Legitimization of the human rights regime requires a participatory, bottom-up process that is driven by the experiences of the afflicted. 184Baraka, supra note 4. Further, collectives and communities are integral to the functioning of many societies around the world. 185The Transformation of Africa, supra note 130, at 899. If human rights are going to enjoy universal legitimacy, the Western individualist focus must be “tempered with communalist or group oriented approaches” 186Id. that provide for third generation human rights. The current system fails to wrestle with the underlying economic and political philosophy and indirectly sanctions political democracy and free market capitalism. 187Id. at 922. Critically, the current system wrongly equates achieving human dignity with containing despotism and therefore seeks a society that avoids political tyranny but makes no effort to remedy economic tyranny. 188Id. Economic powerlessness must be addressed. 189Id.

This again emphasizes a startling dichotomy. Countries may recognize the right to life but not recognize economic rights. Yet economic and social rights are necessary for one to earn enough, or grow enough food, to survive. Is access to food the equivalent of a right to life or, because it is removed by the necessity of work (either by subsistence agriculture or earning enough money to buy food), is it “merely” an economic right? 190See infra Part II. If access to food is an economic right that is not valued by the West, then the fundamental right to life is a misnomer. It is not a positive right to life, but rather freedom from a state arbitrarily taking one’s life. However, if the former is true, and access to food stands on par with a right to life, secondary questions are raised: is the right to migrate due to food scarcity an individual right, a collective right, a political right, an economic right, or some combination thereof and how does this influence the ability to migrate between states and the obligation of receiving states?

Since food scarcity has social, economic, political, and environmental causes, 191Id. this Comment argues that the right to migrate due to food scarcity is a complex amalgamation of these human rights categories. However, trying to categorize this proposed right into the old generational distinctions is like trying to force a square peg into a round hole. Much of the confusion is due to the state-centered treaty process that creates a “top-down and conservative understanding of available human rights.” 192Baraka, supra note 4. There is no problem translating the global ideals to local realities if the structural process is inverted. 193Id. Reversing the perspective, it is easy to see that if there is a right to life, then access to food is a corollary right of equal importance and any hindrance to food access is a violation of that right, regardless of whether the cause is political, civil, economic, or social.

To analyze the right to migrate based on food scarcity, the right must be removed from the theoretical and placed in the actual. An examination of famine situations and economic-driven food scarcity provide a means to delineate the scope of the right to migrate based on food scarcity.

II. Examining Global Situations of Food Scarcity: Famines and the Displacement of Small Farmers.

Famines present a particularly stark and mortal form of food scarcity. 194 Sen, supra note 153, at 40. It is estimated that 260,000 Somalis died from the 2011 famine, half of them under the age of six. Associated Press, Somalia: Famine Toll in 2011 Was Larger Than Previously Reported, N.Y. Times (Apr. 29, 2013), http://www.nytimes.com/2013/04/30/world/africa/somalia-famine-toll-in-2011-was-larger-than-previously-reported.html. However, famines have significant economic underpinnings, and it is not always easy to draw the line between famine and less extreme forms of food scarcity. 195 Sen, supra note 153, at 162. Part II examines the general causes of famine-type food scarcity, two situations of food migration, and the reactions of the primary receiving state. Section A discusses Somalia, a country that faced a famine in 2011, in which more than a 150,000 people migrated to Kenya. 196I.O.M. Appeals for US $26 Million, supra note 16. Section B focuses on Paraguay and the complex relationship with its neighboring states that has created food scarcity for small farmers and driven many to migrate to Argentina. 197See infra Part II.B.i. The drivers of Paraguayan rural migration are examined, followed by a brief look of the liberalization of Argentine immigration laws.

A. Famine Situations and the Case of the 2011 Somali Famine

Famines present an extreme food scarcity situation where the right to life is unambiguously threatened. Despite the clear humanitarian threat presented by famines, their causes are not solely political, environmental or economic, which makes addressing famines particularly difficult within the current refugee or human rights regimes. Part II.A.i explores the intricacies of the causes of famines. Part II.A.ii addresses the Somali Famine of 2011 and the Kenyan response, showing that the displaced populations occupy an ambiguous status somewhere between economic migrants and environmental refugees.

1. Understanding Famines

To the mind of most Westerners, the word famine conjures images of dry fields and starving subsistence farmers. However, famine is often a man-made, and therefore avoidable, phenomenon. 198See Cudiamat, supra note 82, at 922; Andrew E. Shacknove, Who is a Refugee?, 95 Ethics 274, 279–80 (Jan. 1995). While a full examination of the causes of famine exceeds the scope of this Comment, a secondary effect of famine is the tendency for communities to migrate away from the affected areas. 199 See generally Sen, supra note 153, at 56, 87–88, 119. During the Great Bengal Famine of 1942–43 there was mass peasant immigration to Calcutta; at the peak of the Ethiopian Famine of 1972–74, 60,000 people had migrated to Addis Ababa and were living refugee camps; the famines which plagued the Sahel in 1972–1973 drove the pastoral population to camps in the South. Id. Therefore, a general understanding of the factors that cause famine-related migration assists in understanding how famine victims fit within the international migration framework.

Famine is a widespread, extreme, and protracted shortage of food that often results in starvation. 200 Id. at n.2 (reporting that various scholars define famine as: (1) “food shortage [that] is either widespread or extreme if not both, and that the degree of extremity is best measured by human mortality from starvation;” (2) “[a]n extreme and protracted shortage of food resulting in widespread and persistent hunger, evidenced by loss of body weight and emaciation and increase in the death rate caused either by starvation or disease resulting from the weakened condition of the population;” and (3) “an economic and social phenomenon characterized by the widespread lack of food resources which, in the absence of outside aid, leads to death of those affected.”). A lack in the actual quantity of food is only one possible cause of famines. 201 Id. at 162. Professor Amartya Sen views famines as economic disasters, not just food crisis, 202 Id. noting that starvation results from people not having enough food to eat, which does not necessarily equate with there not being enough to eat. 203 Id. at 1. But see Peter Bowbrick, The Causes of Famine: A refutation of Professor Sen’s Theory, Food Policy, 105 (May 1986) (using the Bengali Famine to contest Sen’s “demand side analysis”). The extent to which food supply influences famine and starvation is dependent upon entitlement relations 204Exchange entitlement is the bundle of commodities that an individual can acquire in exchange for what he owns. Exchange occurs either through trading, production, or a combination of the two. Exchange entitlements are determined by (1) if an individual can find employment, at what wage and for how long; (2) what he can earn by selling non-labor assets; (3) what he can produce on his own; (4) the cost of purchasing resources and the value of the products he can sell; and (5) social security benefits and entitlements and the cost of taxes. Sen, supra note 153, at 3–4. that determine the distribution of food between different parts of the community. 205I.O.M. Appeals for US$ 26 Million, supra note 16. The mismanagement of food distribution can create famine. 206Shacknove, supra note 198, at 922. The ECESCR, which calls for governments to cooperate in the equal distribution of food, apparently recognizes this reality. 207ICESCR, supra note 9, art. 11.2(b).

Famine-driven migrants are not always permanent “refugees,” even in the broad sense of the word. 208Black, supra note 106. In fact they do not qualify for any refugee status because they are not the victims of persecution. See supra Part I.B. Many Ethiopians in the 1970s avoided institutionally distributed relief and “feeding points” that would have potentially resulted in large numbers of permanent internally displaced persons or “refugees,” and returned to their homelands when the crisis passed. 209Black, supra note 106, at 6. Similarly, the people that migrated south during the Sahel droughts and famines of the 1970s returned north afterwards. 210 Sen, supra note 153, at 124. As Professor Sen notes, the problem for the Sahel is one of fluctuating economic circumstance between wet and dry years, as opposed to a complete collapse of economic potential in the North. 211Id. In both cases, the vulnerable populations did not suffer from persecution as defined in the Refugee Convention and, therefore, did not qualify as refugees under international law. 212See Refugee Convention, supra note 11. Nevertheless, in most situations, the government’s inability to support famine victims directly enhances the vulnerability of environmental and economic refugees that are forced to relocate because of a shortage of food. 213Cudiamat, supra note 82, at 922.

In Africa, food shortages have traditionally been attributed to four factors: inadequate education of African farmers, low consumer prices for agricultural products, unstable political climate, and growing population. 214Joy A Weber, Famine Aid to Africa: An International Legal Obligation, 15 Brook. J. Int’l L. 369, 373 (1989). Both the first and fourth factors address farmers’ actual ability to produce sufficient food for the population, but in most famines it is the distribution, not the food quantity, which is the underlying culprit for shortages. 215See Cudiamat, supra note 82, at 922. African governments have historically been criticized for implementing self-defeating policies that promote low consumer prices for food, which provides “little incentive for the primary producers, the small African farmers, to contribute to agricultural output even when weather conditions are favorable, since their crops will not yield profits.” 216Weber, supra note 214, at 374–75. Yet the food price crisis of 2008 217The economic down turn of 2008 caused global food prices to rise by 25%, with the price of corn doubling from the price in 2006 and wheat prices reaching a 28-year high. The World Food Crisis, N.Y. Times (Apr. 10, 2008) available at, http://www.nytimes.com/2008/04/10/opinion/10thu1.html. was not beneficial to rural households because, despite also being producers, many rural households are net purchasers of staple food. 218Paul Harvey, Karen Proudlock, Edward Clay, Barry Riley, & Susanne Jaspars, Food Aid and Food Assistance in Emergency and Transitional Contexts: A Review of Current Thinking, 7 (Humanitarian Policy Group, June 2010). In fact, pastoralists, small farmers, ranked among the most adversely affected populations. 219Other significantly affected populations were the rural landless, displaced persons, and urban poor. Id. This leaves the third factor, which most significantly implicates the obligation of governments to ensure access to food.

2. The 2011 Somali Famine and Kenya’s Response

In the summer of 2011, famine was declared in five parts of southern Somalia. 220I.O.M. Appeals for US$ 26 Million, supra note 16. The famine was partially the result of a severe regional drought that also affected parts of Kenya, Ethiopia, and Djibouti, 221Id. increased food prices, 222Horn of Africa Famine, UNICEF http://www.unicefusa.org/work/emergencies/horn-of-africa/ (last visited Feb. 12, 2014). and al-Shabaab militants preventing food deliveries. 223Associated Press, Somalia: Famine Toll in 2011 Was Larger Than Previously Reported, New York Times (Apr. 29, 2013) http://www.nytimes.com/2013/04/30/world/africa/somalia-famine-toll-in-2011-was-larger-than-previously-reported.html. Ongoing fighting between Somali militias and the Transitional Federal Government since May 2009 had resulted in increasing levels of displacement and made humanitarian assistance difficult. 224Somalia Country Profile, Int’l Org. Migration (Aug. 2014) www.iom.int/cms/en/sites/iom/home/where-we-work/africa-and-the-middle-east/east-africa/somalia-1/somalia-country-profile.html. As a result, many Somalis sought refuge and relief in Kenya and Ethiopia. 225I.O.M. Appeals for US$ 26 Million, supra note 16. At the peak of the migration, approximately 1,400 Somalis arrived in Kenya each day. 226Thirty Thousand Somalis Given Shelter as IOM Pitches Last Tents at Camp in Kenya, Int’l Org. Migration (Dec. 16, 2011), https://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/thirty-thousand-somalis-given-shelter-as.html. The IOM and its partners transported 100,000 dehydrated and starved Somalis from the border to camps in Kenya and Ethiopia. 227100,000 Displaced Somalis Assisted By IOM To Reach Camps In Kenya And Ethiopia Since The Influx, Int’l Org. Migration (Jan. 31, 2012), http://appablog.wordpress.com/2012/01/31/100000-displaced-somalis-assisted-by-iom-to-reach-camps-in-kenya-and-ethiopia-since-the-influx/.

Somalia presents an interesting and difficult case study because it is, in effect, a failed state. 228See Mary Harper, Getting Somalia Wrong?: Faith, War, and Hope in a Shattered State 105–06 (2012) (defining failed state as one “that can no longer perform its basic security and development functions and that has no effective control over its territory and borders.”). While there is a preference in the international community for in situ solutions for food crises, 229See Int’l Org. Migration, Migrants in Times of Crisis: An Emerging Protection Challenge, International Dialogue on Migration 4 (2012) (“First, States bear the primary responsibility to protect and assist crisis-affected persons residing on their territory.”) [hereinafter Migrants in Times of Crisis]. it is clear that no such remedies are available in Somalia. 230See Harper, supra note 228, at 104–06. However, the famine provides an opportunity to examine the international response to famine “refugees.” Around 152,000 Somalis fled to the Dadaab refugee camp in eastern Kenya. 231Int’l Org. Migration, Migration Mapping Service between Somalia and Dadaab in Kenya Highlights Need for Better Protection of Drought and Famine Victims, ReleifWeb (Nov. 22, 2011), http://reliefweb.int/report/kenya/migration-mapping-service-between-somalia-and-dadaab-kenya-highlights-need-better [hereinafter Migration Mapping Service]. Kenya has been providing asylum to regional refugees for decades and Dadaab—the world’s largest refugee camp—houses the largest Somali population outside of Somalia. 232Refugee Consortium of Kenya, Asylum Under Threat: Assessing the Protection of Somali Refugees in Dadaab Refugee Camps and Along the Migration Corridor 9 (2012). Kenya’s legal obligations to refugees are clear: Kenya ratified both the 1951 Refugee convention and the 1969 OAU convention without reservations. 233Id. at 7. In addition, the Kenyan constitution integrates the “general rules of international law” as part of Kenyan law 234Constitution, art. 2, §5 (2010) (Kenya). and the constitution’s Bill of Rights provide civil, political, economic, cultural, and group rights to all persons. 235See constitution, art. 26–51 (2010) (Kenya).

Prior to 2006, Kenya had no refugee-specific laws. 236Refugee Consortium of Kenya, supra note 232, at 20. In 1992, on the invitation of the Kenyan government, the UNHCR assumed responsibility for refugee protection in Kenya, including determinations of status. 237Id. The UNHCR recognized two classes of refugees: (1) mandate refugees, who constituted all refugees that had undergone some form of individual status determination; and (2) prima facie refugees based on regions suffering from generalized conflict, notably Somalia and Sudan. 238Id. When Kenya passed the 2006 Refugee Act and assumed responsibility for refugee administration, it maintained the mandate and prima facie distinctions. 239The Mandate’s refugee definition was expanded beyond the Refugee Convention to include sex as a ground for persecution. The Prima Facie definition was changed to the language in the expanded OAU Convention definition that includes “events seriously disturbing public order” Refugee Consortium of Kenya, supra note 232, at 21. Historically, most Somali refugees have cited conflict as their motivation for fleeing, but a survey of the newly arrived Somali “refugees” found that 43% had come to the camp predominately as a result of the drought and famine, 240Id. at 42. which does not comport with the legal requirements of the Refugee Convention. 241See supra Part I. There is concern that these new “refugees” may undermine the prima facie refugee status of Somali immigrants. 242Refugee Consortium of Kenya, supra note 232, at 10.

Despite their ambiguous status, “[o]ther rights - housing, health, food, safe and adequate drinking water–[were] provided as part of the humanitarian assistance for refugees” though they were not always sufficient. 243Id. at 30. Due to the regional conflict, Kenya closed its border with Somalia in 2007 and maintained the closure throughout the 2011 crisis. 244Id. at 34. Yet Kenya made no effort to stop famine refugees from crossing in 2011, which some view as “a tacit recognition of the overwhelming humanitarian imperative of the famine.” 245Id. at 34. However, knowledge of the border closure led many Somalis to use unofficial crossing points because they believed that Kenyan officials would refuse them entry. 246This lengthened the trip for many Somalis and contributed to excess mortality from the famine. IOM Finds Life Threatening Conditions on the Road to Dadaab; Responds to Emergency in Ethiopia’s Refugee Camps, Int’l Org. Migration (Jul. 29, 2011), https://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/iom-finds-life-threatening-conditions-on.html. See also Refugee Consortium of Kenya, supra note 232, at 88 (“In the context of the 2011 famine and refugee crisis, the continued refusal by the Government of Kenya to open the border, lack of access to nutrition, health, water and transport facilities at Liboi was an egregious protection failure, contributing for several months to excess mortality in the first days of arrival in the camps.”).

The Somali example shows that, while famines present a clear need for humanitarian aid, the displaced populations occupy an ambiguous status somewhere between economic migrants and environmental refugees. Additionally, Somalia clearly demonstrates a situation where in situ remedies to food scarcity are simply not available. The international community and Kenya sought to protect the Somalis basic human rights, in accordance with international law. 247Migrants in Times of Crisis, supra note 226, at 5 (“all migrants, irrespective of their status, are entitled to the full protection of their human rights by the mere virtue of their humanity.”). However, with no legal recognition of their status, the famine refugees face possible refoulement to Somalia at any time. 248Refugee Consortium of Kenya, supra note 232, at 88.

B. The Positive Right to Migrate: The Case of Paraguay and Argentina

Paraguay is a small country in the heart of South America and has a large agrarian society. 249See The World Fact Book: Paraguay, C.I.A., https://www.cia.gov/library/publications/the-world-factbook/geos/pa.html (last visited Jan. 23, 2014). It is one of only 16 countries in the world where the level of malnutrition since 1990 has not declined. 250Hunger Map, supra note 1. According to the Food and Agriculture Organization of the United Nations, 26–33% of the population suffers from undernourishment. 251The level of undernourishment rises to 33%, the second highest level in Latin America, if calculated based the actual caloric expenditures due to average daily physical activity. Food Security Indicators, Food & Agric. Org. U.N. (Dec. 2013), http://www.fao.org/economic/ess/ess-fs/ess-fadata/en/#.UuMmEWQo41I; Paraguay, FAOStat http://faostat.fao.org/CountryProfiles/Country_Profile/Direct.aspx?lang=en&area=169 (last visited Jan. 24, 2014). Facing food insecurity and a breakdown of the traditional agrarian society—due in large part to Brazilian immigration into Paraguay—many Paraguayans are migrating to Argentina. 252See generally Paraguay Migration Profile, supra note 14, at 3. Part II.B.i provides an overview of the factors that create structural poverty among rural Paraguayans and drive their migration to Argentina. Part II.B.ii discusses the Argentine response to Paraguayan migration as a model for a positive right to migrate.

1. Paraguayan History and Migration

To understand regional migration and the relationship between Paraguay, Argentina, and Brazil, one must begin with the Triple Alliance War of the 1860s. 253The origins of the war are beyond the scope of this paper but it was the bloodiest war in South American history and occurred between Paraguay and a triple alliance of Brazil, Argentina, Uruguay, ending in 1870. War of the Triple Alliance, Encyclopedia Britannica, http://www.britannica.com/EBchecked/topic/442711/War-of-the-Triple-Alliance (last visited Jan. 23, 2014). The war decimated the Paraguayan population and led the post-war government to pursue a policy of agricultural colonization by immigrants with the purpose of repopulating the country; 254Paraguay Migration Profile, supra note 14, at 3. the promotion of agrarian immigration continued through the twentieth century. 255Id. Beginning in the 1960s, there was a large influx of Brazilian immigrants into Paraguay. 256Id. at 11. Like the Green Revolution occurring elsewhere in the world, the Brazilians consolidated a model of agricultural and livestock production that depended on a high level of technological inputs and low demand for manual laborers. 257Id. In 1996, Paraguay updated its immigration law but made no reference to the problems of Brazilian immigration. 258Ley No. 978/1996 De Migraciones [Law No. 978/1996 Of Migrations], Art. 2(b), (c) (Para.). Instead, the new law continued with the centuries-old policy, explicitly stating that its goal was to encourage (1) the immigration of foreigners with capital to establish small and medium businesses, and (2) immigration of farmers to colonize parts of the country, to diversify agricultural production, and to incorporate new technologies. 259Id.

The immigration law resulted in extensive monoculture and market domination by mostly Brazilian transnational corporations. 260Paraguay Migration Profile, supra note 14, at 12. The profit and the production of Paraguayan agriculture increased without increasing labor demands. 261Id. The result was the displacement of small and medium Paraguayan farmers who rely on subsistence agriculture, supplemented by some small market sales. 262Paraguay Migration Profile, supra note 14, at 36. These farmers had fewer resources than the multinationals and were unable to compete, contributing to the increase of internal and international emigration. 263Id. at 3.

Additionally, the emphasis by Brazilian and multinational owned agribusiness in Paraguay (often termed “Braziguayos”) on exportable commodities was a substantial change in the model of production of the country and occurred at a high environmental cost. 264Agronegocios, Acaparamiento de Tierras y Transgénicos Detrás del Golpe de Estado en Paraguay [Agribusiness, Land Grabbing and Transgenics behind the Coup in Paraguay], Centro de Documentación y Estudios [Ctr. for Documentation and Res.] (Jun 25, 2012) http://www.cde.org.py/web/index.phpnoticias/72-agronegocios-acaparamiento-de-tierras-y-transgenicos-detras-del-golpe-de-estado-en-paraguay. The new emphasis on large mono-crops resulted in massive deforestation, increased air pollution, and destruction of watersheds due to agrochemicals. 265Id. In some instances, entire communities were poisoned and displaced due to aggressive spraying of agro-toxins. 266See Michael Antoniou, et al., GM Soy: Sustainable? Responsible?, 25 (2010), http://gmwatch.eu/images/pdf/gm_full_eng_v15.pdf (finding about 9,000 rural families are evicted by soy production each year, by armed eviction or aerial spraying of toxic pesticides close to homes.); see also Stephanie Williamson, Rural Communities in Paraguay Endangered by Soya Pesticides, Pesticide Action Network – UK (Sept. 2008), http://www.pan-uk.org/pestnews/Issue/pn81/pn81_p12-15.pdf. In eight communities studied, 78% of families suffered from pesticide-related illnesses and 60% were displaced from their land do to agrochemical contamination of water sources. Id. In addition to displacement and emigration, the influx of Brazilians and Argentines has spurred a relatively large social justice movement, which operates outside of the government and attempts to create in situ remedies by addressing land use, continuing displacement of Paraguayan rural farmers, and environmental degradation. 267See e.g., Movimiento Campesino Paraguayo [Paraguayan Peasant Movement], http://www.okaraygua-paraguai.org/es/; Coordinadora Nacional de Organizaciones de Mujeres Trabajadores Rurales e Indiginas (Conamuri) [National Coordinator of Organizations of Working Rural and Indigenous Women], http://conamuri.org.py/index.html.

Nevertheless, the century-and-a-half of promoted agriculture colonization has generated the most unequal land distribution in the world. 268Conamuri, Paraguay: Golpe de Estado y Asesinatos. Multinacionales del Agronegocio y Resistencia Campesina [Paraguay: Coup and Murders, Multinational Agribusiness and Peasant Resistance] (Jan. 2013), http://www.grain.org/fr/article/entries/4642-paraguay-golpe-de-estado-y-asesinatos-multinacionales-del-agronegocio-y-resistencia-campesina. Recent surveys place approximately 85% of the total land in Paraguay in the hands of 2% of the landowners. 269Centro De Documentación y Estudios, supra note 264. The factors that create structural poverty in Paraguay are causes for migration. 270Paulo Lopez, El éxodo paraguayo: sus causas y consecuencias [The Paraguayan Exodus: Its Causes and Consequences], E’a (Mar. 7, 2012), ea.com.py/el-exodo-paraguayo-sus-causas-y-consecuencias/. Economic production in Paraguay is fundamentally based on agricultural activity and exports. 271Agriculture made up 34.3% of the labor employment in the country in 2002 and 29.5% in 2009. Id.; Agriculture made up 34.3% of the labor employment in the country in 2002 and 29.5% in 2013. Paraguay Migration Profile, supra note 14, at 20. In 2009, the rate of underemployment hovered around 25% of the population, and 22% in rural areas. 272Id. at 22. Paraguay was ranked as the 13th highest inequality of income in the world, with a GINI coefficient of 53.2 in 2009, 273A GINI coefficient measures the extent to which household income and consumption deviates from perfectly equal distribution, where 0 signifies perfect equality and 100 signifies perfect inequality. Of the 136 countries with available data, South Africa is the most unequal with a coefficient of 63.1 (2005), Sweden is the most equal with 23.0 (2005), and the U.S. ranks 46 with a coefficient of 45.0 (2007). GINI index, The World Bank, http://data.worldbank.org/indicator/SI.POV.GINI (last visited Jan. 23, 2014); C.I.A., supra note 249. and has the lowest per capita income in the region. 274Paraguay Migration Profile, supra note 14, at 14.

The issue of land distribution and territorial control by Brazilian immigrants are clear engines of Paraguayan migration. 275See Lopez, supra note 270 (noting how land sales and the establishment of foreign farms in the 1970s post-war period provoked the emigration of an evicted Paraguayan population); see also Paraguay Migration Profile, supra note 14, at 12 (stating that subsequent to the opening of the “agriculture frontier,” immigrants were predominately Brazilian). The advance of agribusiness occurs at the expense of adaptive farming models by rural Paraguayans, resulting in an expulsion from their land. 276Paraguay Migration Profile, supra note 14, at 19; Resoluciones del 10 Congreso del MCP [Resolutions of the 10th Congress of the Paraguayan Peasant Movement], MCP (Oct. 26, 2010), www.okaraygua-paraguai.org/news/es_ES/2010/10/26/0001/resoluciones-del-10o-congreso-del-mcp. Some of the migrations are to internal urban centers, but those areas are already saturated, impoverished, lacking even the minimum sanitation in parts. 277Paraguay Migration Profile, supra note 14, at 19. Furthermore, it is almost impossible for an uneducated farmer to find adequate and dignified work 278Id. so many displaced Paraguayans turn their sights abroad. Estimates from 2010 indicate that around 777,000 Paraguayans, about 12% of the total population, have emigrated. 279Id. at 4. Of that, almost 73% have migrated to Argentina. 280Id. at 35. The origin of the migrants is telling—about half of the Paraguayan immigrants came from rural areas, and around 25% come from just two of the departments that received a large number of Braziguayo immigrants. 281Id. at 36.

The chain of Paraguayan migration is complex. A centuries-old national policy opened the country up to outside colonization, mechanized agriculture, and an export-based economy resulting in displacement of small to medium Paraguayan farmers who substantially rely on subsistence agriculture. 282Id. at 11, 36. Displacement results not only in a loss of home but a loss of access to food. Not only can these displaced individuals no longer support themselves through subsistence agriculture but also, in many cases, they are unable to find employment sufficient to feed themselves and their families. 283Id. at 19. The result is a large migratory population seeking employment abroad. 284Id. at 4. While this clearly represents a crisis in food access, the displaced Paraguayans do not fall neatly into the refugee framework. 285See supra Part I.B. Some have been displaced because their land was surrounded and eventually purchased by multinational corporations. Others were physically forced off their land, while others faced economic dislocation because of their inability to compete in the new market. 286See Antoniou, supra note 266; Paraguay Migration Profile, supra note 14, at 3; Williamson, supra note 266. The failure of in situ remedies and the unavailability of remedies within the current refugee framework indicate that a new approach is needed to provide protection to Paraguayan immigrants and others similarly situated. Establishing a positive right to migrate provides a potential alternative and the Argentine response to Paraguayan migrants illustrates how a positive right to migrate may look.

2. Argentina’s Immigrants and Immigration Law

Like most countries in South America, Argentina was subject to a military dictatorship during the 1960s, 1970s and into the 1980s. 287Janet Kovin Levit, The Constitutionalization of Human Rights in Argentina: Problem or Promise?, 37 Colum. J. Transnat’l L. 281, 288 (1999). During the dictatorship, the Argentinians suffered severe human rights abuses and many people were tortured and later “disappeared.” 288Id. at 288–89. As a result of this oppressive history, the democratic Argentina that emerged in the 1980s and 1990s incorporated international law into the bedrock of the Argentine legal system. 289Id. at 283, 288. Notably, the new constitution held that all international treaties are superior to domestic laws and elevated several human rights treaties to constitutional status. 290Id.

In accordance with this incorporation of international human rights into Argentine domestic law, Argentina revised its immigration law and passed Law 25.871 in 2004. 291Barbara Hines, The Right to Migrate as a Human Right: The Current Argentine Immigration Law, 43 Cornell Int’l L.J. 471, 472 (2010). This was the first time the immigration law had been revised since the military dictatorship and represented a major step in increasing immigrant rights. 292See id. While the law improved the status of immigrants generally, the most significant change was to establish migration as a fundamental right. 293Id. Under the title “Rights and Freedoms of Foreigners,” Article 4 reads: “[t]he right of migration is an essential and inalienable individual right and the Republic of Argentina guarantees this right based in the principles of equality and universality.” 294Law No. 25.871, art. 4, Dec. 17, 2003, [30322] B.O. 2 (Arg.).

The incorporation of the right to migrate, as opposed to a limited freedom of movement, is not found in immigration laws of other large immigrant-receiving countries or explicitly in any human rights conventions. 295Hines, supra note 291, at 472; cf. Part I.A. This concept has found traction elsewhere in the region as well. 296Int’l Org. Migration, supra note 16, at 62–63. The First Forum of Migrants in Paraguay in 2009 coincided with the Third Forum on Migration and American Platense Civil Rights Community. The Forum discussed immigration, immigrant labor rights, discrimination, and xenophobia and ratified a resolution declaring the right to migrate was a human right that must be respected by nation-states. Id. The Argentine immigration law blends the fundamental concepts of human rights with immigration. Not only does the law establish open borders and the right to migrate, but also grants rights to healthcare access and private and public education, regardless of immigration status. 297Law No. 25.871, art. 7, 8, Dec. 17, 2003, [30322] B.O. 2 (Arg.). The law also gives migrants a right of family reunion, providing for the immigration of children, spouses, and parents of migrants already present in the country. 298Id. art. 10.

In 2006, Argentina launched a national program called “Patria Grande” designed to regularize immigrant status for irregular immigrants who were citizens of a country belonging to the Common Market of the South (“MERCOSUR”) or associated states. 299Argentina, Int’l Org. Migration (Nov. 22, 2013), http://www.iom.int/cms/en/sites/iom/home/where-we-work/americas/south-america/argentina.html. The program allows for regularization of all immigrants from Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay and Venezuela who arrived in Argentina before April 17, 2006 and relaxed the requirements and facilitated the process to achieve residency for persons arriving after that date. 300Ministerio de Relaciones Exteriores y Culto [Ministry of Foreign Relations and Worship], Programa Patria Grande [Great Homeland Program], Gov’t Arg., http://cpays.cancilleria.gov.ar/en/node/10066 (last visited Feb. 12, 2014). The program regularized almost half a million people in its first three years, nearly 60% of which were Paraguayan. 301Ministerio del Interior [Ministry of the Interior], Patria Grande: Programa de Normalización Documentaria Migratoria, Informe Estadistico [Great Homeland: Program for Standardization of Migration Documentary, Statistical Report], 5, 25 (Aug. 2010), available at http://www.migraciones.gov.ar/pdf_varios/estadisticas/Patria_Grande.pdf.

Though the country receives a high volume of immigrants, many of whom are irregular, Argentina still recognizes a universal right to migrate. 302Law No. 25.871, art. 4, Dec. 17, 2003, [30322] B.O. 2 (Arg.). Despite these progressive changes, there are still xenophobic and anti-immigrant sentiments. 303Eduardo E. Demenoch, La “Nueva Política Migratoria” en la Argentina: Las Paradojas del Programa “Patria Grande” [The “New Migration Policy” in Argentina: the Paradoxes of the “Great Homeland” Program] in Migraciones Internacionales Contemporáneas: Estudios Para el Debate [Contemporary International Migrations: Studies for Debate] 123 (Cyntia Pizarro, Ed. 2011). The country has also had problems creating regulations to implement the laws. 304See Hines, supra note 291, at 472–73, 509. Nevertheless, Argentina represents a unique approach to addressing food scarcity and a positive right to migrate, that casts away many of the restrictions in other countries and allows for migrants to enter the country on nearly equal footing with citizens. Though broader than a positive right to migrate due to food scarcity, the Argentine Law 25.871 and Patria Grande program provides a model of a broad right to migrate that emphasizes the moral imperatives underlying human rights, and migration. The Argentine system reflects the humanitarian and economic need of migrants on a regional scale and is an example of how shifting away from an exclusively state-centric approach can provide remedies for individuals that fall outside of the current legal regime.

III. Establishing a Positive Right to Migrate as a Solution to Food Scarcity

There is customary international law establishing the right to adequate food. Though it is not legally binding, the UDHR has been reaffirmed numerous times and no state has denounced the declaration. 305Weber, supra note 214, at 384–85. Additionally, there is an affirmative practice of providing aid and food to least developed countries. 306 See e.g., Food Assistance Convention, May 8, 2012, C.N.215.2012.TREATIES-XIX.48. The 1996 World Food Summit declared the intention of 182 states to reduce by half the number of chronically undernourished people by 2015. 307Monitoring Progress Since the World Food Summit, World Food Summit, available at http://www.fao.org/wfs/index_en.htm [hereinafter Declaration of the World Summit]. Reaffirmed multiple times, the most recent World Food Summit on Food Security declared “the right of everyone to have access to safe, sufficient, and nutritious food.” 308World Summit on Food Security, Declaration of the World Summit on Food Security, art. 16 (Nov. 16–18, 2009). Finally, the second iteration of the Food Assistance Convention (FAC) established principles of food assistance to low and middle-income countries and acknowledged the commitments of the World Food Summit to achieve food security in all countries as part of the elimination of poverty. 309Food Assistance Convention, supra note 306, art. 2. From these conventions, universal affirmation of the UDHR, and the actions of the international community in famine situations—such as those taken by Kenya and the IOM to provide aid to Somali famine victims—one may conclude that that there is customary international law for those provisions of the UDHR that refer to economic rights and the right to food. 310See Weber, supra note 214, at 387. This customary international law imposes an obligation on states regardless of whether the country ratified a binding treaty such as the ICESCR. Interestingly, all fourteen signatories to the FAC are “developed” nations and only four—Australia, Canada, Japan, and the United States—are not European. 311The other signatories are: Austria, Bulgaria, Denmark, The European Union, Finland, France, Greece, Luxembourg, Portugal, and Switzerland. Food Assistance Convention, supra note 306. In contrast, any country listed on the OECD’s Development Assistant Committee’s list of Official Development Assistance Recipients, a list comprised predominantly of African, Latin American, and South Asian countries, is eligible to receive assistance. 312Food Assistance Convention, supra note 306, art. 4. “The DAC List of ODA Recipients shows all countries and territories eligible to receive official development assistance (ODA). These consist of all low and middle income countries based on gross national income (GNI) per capita as published by the World Bank, with the exception of G8 members, EU members, and countries with a firm date for entry into the EU. The list also includes all of the Least Developed Countries (LDCs) as defined by the United Nations (UN).” DAC List of ODA Recipients, OECD, http://www.oecd.org/dac/stats/daclistofodarecipients.htm (last visited Jan. 11, 2014).

Despite the clear global agreement on reducing hunger, 313See World Summit on Food Security, supra note 307. the relationship found in the FAC carries echoes of colonialism and mirrors the global division in the human rights regime. 314See supra Part II.C.2. The FAC states that the purchase of food locally or regionally is an important principle in the effectiveness of food assistance, 315Food Assistance Convention, supra note 306, art. 2. which reflects the current realities of global food aid. 316There are three significant trends in food aid: (1) Emergency relief is an increasingly large percentage of overall aid, with a decline in food aid for development purposes; (2) There is a movement toward procuring food aid from local and regional sources; (3) Non OECD-DAC governments are becoming increasingly important funders but major food donors remains mostly unchanged: the US provides around half of all food aid, followed by EU, Canada, and Japan while the top five recipients of food aid in 2008 were Ethiopia, Sudan, Somalia, Zimbabwe, and Afghanistan. Harvey, supra note 218, at 2. The document itself places a strong emphasis on in situ remedies, declaring in the preamble that states have the primary responsibility for their national food security and encouraging states to address the root causes of food insecurity. 317Food Assistance Convention, supra note 306. Regardless of the preference for in situ remedies by all parties involved—sending states, receiving states, and food migrants themselves—local remedies are often unavailable due to lack of state capacity or lack of will. 318See generally Hunger Map, supra note 1. In situations where in situ options are unavailable or impractical—such as Somalia where the governing body is simply incapable of providing adequate protections, 319See Harper, supra note 228 at 105–06 (acknowledging that the government of Somalia cannot perform basic security or development functions). or in Paraguay where national policy has resulted in food scarcity for marginalized populations 320Cf. Law No. 978/1996, supra note 258, art. 20. —what remedies are available?

It appears that there are no remedies available within the current legal regime, which leads to two possibilities. First the international community does nothing to help victims of food scarcity. Not only is this position morally untenable, it contradicts the stated intent to assist victims of food scarcity that has been affirmed by various countries such as . 321See Declaration of the World Summit, supra note 307. A second option is to maintain the current system as it is and continue to recognize the moral imperative to help famine refugees without granting them any immigration status. 322See discussion infra Part II.A. However, the current system creates a false bright line distinction between famines and other food scarcity situation and fails to address the legal status of food migrants. 323Id. If no remedies exist, but there is a strong political will and moral impetus, the system could be modified to allow for remedies. Modification of the legal system to assist victims of food scarcity where in situ remedies are unavailable could be accomplished by modifying domestic laws, international refugee law or by adding to the body of international human rights to establish a positive right to migrate for these vulnerable populations. Solely relying on domestic laws is unfavorable for the same reasons that the legal community established refugee law, namely the universality of the problem and the unpredictability of where victims may arise in the future. Part III.A discusses why changing refugee law would be an ineffective solution and Part III.B examines establishing a positive right to migrate and the need of switching to a people-centered human right approach.

A. A Positive Right to Migrate: Rejecting a Remedy Through Refugee Law

Using refugee law to establish a right to migrate due to food scarcity should not be prohibited by the fact that many famine refugees do not seek permanent resettlement. 324Black, supra note 106, at 6. Though there is a de facto presumption of asylum and permanent resettlement for refugees, 325 See Martin, supra note 94, at 804–06. refugee status is not always permanent, and if the persecution ceases, a refugee may be returned to their home country without violating refoulement. 326See Immigration and Naturalization Act, 8 U.S.C. § 1158(c)(2) (2009). Nevertheless, food migrants fleeing food scarcity do not qualify as refugees under the traditional definition because they are not being persecuted based on one of the five protected categories. 327See Refugee Convention, supra note 11, at 152–54. Shoehorning victims of famine or food scarcity into the definition of refugee would require either claiming that they are being persecuted, perhaps by the famine itself, or substantially reformulating refugee law to remove the persecution requirement. An examination of the latter exceeds the scope of this Comment, while the former appears to be little more than an exercise in semantics. Though some who argue for the creation of environmental refugee status use this semantic argument, 328See e.g., Cudiamat, supra note 82, at 925 (arguing that for environmental refugees, the environment is the persecuting agent). it is inappropriate while other solutions to the famine refugee are available.

At first blush, expanding refugee law to include environmental refugees appears to be a promising strategy. It directly wrestles with a “mere victim’s” right to movement and the sovereign state’s interest in territorial integrity. 329Martin, supra note 94, at 804–06. However, environmental factors are only one potential cause of food migrants. In the case of Somalia, regional drought clearly played a role in causing the 2011 famine. 330IOM Appeals for US $26 Million, supra note 16. However, parts of pastoral Kenya suffered from the same drought but did not experience famines. 331Id. This is a clear indication that, as Professor Sen argues, more than simple environmental factors cause famines. 332See id. In the case of Paraguay, food scarcity and migration is not driven by traditional environmental factors like drought or desertification. 333Paraguay Migration Profile, supra note 14, at 5–6. While large mono-cropping and modern agriculture may destroy the landand aerial spraying of agrochemicals on communities could conceivably fall within the category of environmental conflict, 334See Antoniou, supra note 266; Williamson, supra note 266, at 5. However, the forced removals and aerial spraying seem best remedied by human rights or domestic civil and criminal law. the drivers of the food scarcity and migration in Paraguay are substantially socio-economic. 335Paraguay Migration Profile, supra note 14, at 3.

Augmenting the refugee law to establish a right not to be displaced also has limited effectiveness because it assumes a local actor that can be held accountable for failure to provide an in situ remedy. In the case of Somalia, there is no actor to hold accountable for the displacement. 336See generally Harper, supra note 228, at 105 –06. In the case of Paraguay, there are clearly actors responsible for the displaced communities. 337Paraguay Migration Profile, supra note 14, at 5–6. Both government actions and the actions of private entities have led to displacement and food scarcity in Paraguay. 338See Ley No. 978/1996 De Migraciones [Law No. 978/1996 Of Migrations], Art. 20 (Para.); Paraguay Migration Profile, supra note 14, at 5–6. However, establishing a right not to be displaced does not protect the individuals already displaced but focuses instead on the actors causing the displacement. While this is certainly an important objective, it is not clear how enforcement of such a right would differ substantially from domestic tort or criminal law. For all of these reasons, refugee law does not present itself as a body of law that can provide security to food migrants or in which to incorporate a positive right to migrate.

B. Human Rights Law and the Incorporation of a Positive Right to Migrate

A positive right to migrate due to food scarcity closely aligns with the humanitarian aims of the human rights regime. 339See Refugee Consortium of Kenya, supra note 232, at 30. Viewing the right to migrate due to food scarcity through the lens of human rights law highlights the underlying right to adequate food. Since food scarcity has social, economic, political, and environmental causes, 340See supra Part II. the right to migrate due to food scarcity is a complex amalgamation of human rights law categories. Establishing a positive right to migrate due to food scarcity does not create a whole new human right, rather it blends existing human rights to allow for legal status and recognition of recurring migratory populations. In famine situations similar to Somalia, countless lives could be saved if food migrants avoid dangerous and furtive border crossings because they know the receiving state will accept and help them. In a situation such as Paraguay, where there is no famine to establish immigrants as prima facie food migrants, implementation of the right could ease of entry for populations suffering from food scarcity, perhaps through an expedited border crossing system. Finally, establishing a positive right to migrate would help protect the full panoply of human rights by giving legal status to food migrants and empowering them to challenge violations of other rights. 341See Refugee Consortium of Kenya, supra note 232, at 23–26 (noting how Somali refugees in Dadaab are often denied guaranteed rights including right to engage in wage-earning employment, right to own property, right to practice a profession, right to self-employment, access to housing and right to choose place of residence). Part III.B.i discusses why a state-centric approach to human rights is not the best forum to establish a positive right to migrate. Part III.B.I examines the benefits of switching to a people-centric approach.

1. Deficiencies in a State-Centric Approach to Human Rights

A traditional human rights approach fails to address adequately the problem of food scarcity because human rights law focuses only on the relationships between States and the populous. 342See Ahmed An-Na’im, supra note 131, at 1. Therefore, the right to adequate food is invoked only if the state is somehow implicated in creating the food scarcity. 343 See id. at 1–2. If the right to life and the corresponding right to sufficient food—with all of its economic implications—have equal status under the law, the establishment of a right to food as a human right creates a positive obligation to act on the part of the State and calls for an entitlement system. This is not inherently bad, but it does cut against the domestic norms of the U.S. and other liberal democracies that have, wittingly or not, promulgated human rights as a means to fight political tyranny but have not concerned themselves with economic tyranny. 344The Transformation of Africa, supra note 130, at 922. Not only is an entitlement solution untenable to some political actors in the West, but it presumes a state run in situ remedy, failing to address situations in which states are powerless to meet their obligations (Somalia), or where state complicity is only one of many intertwining political, economic and social factors that lead to violations (Paraguay). 345See discussion infra Part II. The right to food highlights the near impossibility to impose affirmative duties upon states. 346Weber, supra note 214, at 386–87 (it is much easier to persuade states to abstain from certain activities).

A positive right to migrate in the human rights framework raises the additional issue of state sovereignty. The human rights regime was born into a Westphalian world and it is ill-equipped to handle the socio-economic interdependence that transcends national borders. 347See generally Grossman, supra note 165, at 1–2. Nowhere is this more evident than in a positive right to migrate, which would effectively declare an exception to territorial integrity: where an individual’s or group’s rights are being violated due to food scarcity, and where the food scarcity cannot be readily remedied in situ, then that individual or group has the right to migrate internationally in order to become food secure. State sovereignty does not come into play in this definition; in fact, the definition operates in derogation of the exclusion principle of state sovereignty. 348See Parrish, supra note 169, at 1100–01. Nor does the proposed right establish an obligation from the state to the individual, 349See Ahmed An-Na’im, supra note 131, at 1; see also Savages, Victims, and Saviors, supra note 129, at 202–03. except to oblige the state to disregard, in particular circumstances of food scarcity, a fundamental element of the state’s own sovereignty. While this may appear radical, it is, in fact, what occurred for both Paraguayan and Somali migrants. 350See discussion infra Part II. Paraguayans migrating to Argentina, especially those arriving after 2004, were met with an open door policy and legal efforts to secure their rights and residency regardless of their migration status. 351See Law No. 25.871, art. 4, Dec. 17, 2003, [30322] B.O. 2 (Arg); Ministerio de Relaciones Exteriores y Culto [Ministry of Foreign Relations and Worship], Programa Patria Grande [Great Homeland Program], Gov’t Arg., http://cpays.cancilleria.gov.ar/en/node/10066 (last visited Feb. 12, 2014). For Somalis, Kenya has allowed international aid agencies to shuttle migrants from the border to refugee camps in Kenya. 352100,000 Displaced Somalis, supra note 227.

2. Shifting to a People-Centric Approach to Human Rights

The proposal of the right to migrate due to food scarcity by a Western academic poses a clear danger of perpetuating a Western and Eurocentric perspective, the exact opposite of what a change to people-centric framework hopes to achieve. 353See e.g. Baraka, supra note 4; Savages, Victims, and Saviors, supra note 129, at 204. However, the positive right to migrate due to food scarcity finds its origin, not in political negotiations of powerful Western states, but in the economic realities and habitual actions of vulnerable populations. 354See discussion infra Part II. Establishing a right from the manifest need of vulnerable populations embodies the shift from a state-centric to people-centric approach to human rights. 355See Baraka, supra note 4; see generally Savages, Victims, and Saviors, supra note 129. As shown in the case of Paraguayan and Somali migrants, 356See discussion infra Parts II.A, II.B. as well as the traditional migratory patterns of Malian and other pastoralists, 357Cartier, supra note 85, at 8 (traditional circular migration patterns of pastoralist and nomadic groups is used to gain access to better pasture, land, and water and is viewed as a positive adaptation for insecure climates). vulnerable populations facing food scarcity regularly engage in international migrations. The legal foundations in terms of the right to life, 358See, e.g., UDHR, supra note 3, art. 25. the right to adequate food, 359Id. and the limited right to freedom of movement 360See e.g., id. art. 13; Migrant Workers Convention, supra note 5, art. 8. already exist. Therefore, establishing a positive right to migrate due to food scarcity does not create a new human right wholesale, so much as weave together existing rights to establish legal status for certain recurring migratory populations.

Since the right to migrate due to food scarcity represents a legal elevation of societal behavior that runs counter to a fundamental principle of state sovereignty, 361See Parrish, supra note 169, at 1100–01 (territoriality has been the cornerstone of an international system that, for centuries, has operated on the Westphalian principles of state sovereignty and nonintervention). a positive right to migrate will most likely not find a foothold in a state-centric approach to human rights. Expanding to people-centric human rights from a unilateral, state-to-citizen relationship allows economic, cultural, and social rights to operate on multiple levels that invoke state, individual, and community participation and responsibility. 362See, e.g., The Transformation of Africa, supra note 130, at 899. Such an expansion would not only temper the individualist focus of the current human rights regime 363Id. but would recognize the growing and critical roles of non-state actors in the international community 364See e.g., infra Part II.A.ii (discussing the role of NGOs in assisting Somali refugees). as bound entities within the human rights framework. 365The belief that there is a “clear distinction between domestic and international legal issues is fundamentally flawed” and international law needs to recognized and incorporate all international actors into its jurisdiction. Grossman, supra note 165, at 22–23. However, the exact means of creating this new regime should be the product of collaboration between diverse international actors that exceeds the scope of this Comment. The change would enable those entities to protect and facilitate freedom of movement for food migrants. In the case of the Food Assistance Convention, creating obligations for regional entities comports with the goal of securing food aid from local sources and could remove the colonial undertones of the current food aid system. 366Food Assistance Convention, supra note 306, art. 2; see infra Part I.C. Instead of Western states providing assistance to former colonies, the paradigm could shift to local and regional communities and organizations providing support to local and regional communities in need.

Nevertheless, switching to a people-centric approach to human rights does not require a complete removal of state sovereignty or negate the value of state actors. 367But cf. Parrish, supra note 169, at 1136 (recognizing and arguing against the new discourse that places the person at the center of the international legal system and favors non-territorial models). In many situations the human rights community relies on strong states to act on their behalf. 368Id. While there are still significant questions of what implementation of the new right might look like, Argentina’s immigration laws provide a clear example of how a positive right to migrate due to food scarcity could operate within the State-dominated international system. 369See infra Part II.B.ii (discussing Argentine Law No. 25.871 and Patria Grande).

Conclusion

Current human rights conventions guarantee a right to adequate food. This Comment proposes that where an individual’s or group’s right rights are being violated due to food scarcity, and where the food scarcity cannot be readily remedied in situ, then that individual or group has the right to migrate internationally in order to become food secure. This positive right to migrate due to food scarcity does not comfortably fit within the confines of refugee law or the current human rights system. Nevertheless, the right fits closely with the humanitarian aims of the human rights regime and may be appropriately cast in the human rights framework if that framework is modified beyond its current state-centric approach.

The establishment of a positive right to migrate due to food scarcity and the shift to a people-centric human rights framework does not necessitate a complete removal of state sovereignty or negate the importance of state actors. In many situations the human rights community relies on strong states to act on their behalf. 370See Parrish, supra note 169, at 1136. However, the system needs to recognize the importance and obligations of non-state actors, communal perspectives, and socio-economic rights that can only be actualized outside the boundaries of the traditional Westphalian system. The utility of casting a positive right to migrate in the human rights mold depends on shifting to a people-centric as opposed to a state-centric approach in order to accept non-state actors and regional actors as bound entities within the human rights framework and empower those entities to protect and facilitate freedom of movement for food migrants.

Footnotes

1See Food and Agriculture Organization of the United Nations, Hunger Map 2013, [hereinafter Hunger Map] available at http://www.fao.org/hunger/en/. Chronic hunger, also referred to as “undernourishment,” is defined by the Food and Agriculture Organization of the United Nations as “a state, lasting for at least one year, of inability to acquire enough food, defined as a level of food intake insufficient to meet dietary energy requirements.” Food and Agriculture Organization of the United Nations, Hunger Portal, http://www.fao.org/hunger/en/.

2Hunger Map, supra note 1.

3Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) art. 25 (Dec. 10, 1948) [hereinafter UDHR].

4Ajamu Baraka, “People-Centered” Human Rights as a Framework for Social Transformation, A Voice From the Margins (Dec. 10, 2013), www.ajamubaraka.com/the-human-rights-project-determined-by-the-needs-of-the-powerful/.

5UDHR, supra note 3, art. 13; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, U.N. Doc. A/RES/45/158, art. 8 (Dec. 18, 1990) [hereinafter Migrant Workers Convention].

6A positive right is “[a] right entitling a person to have another do some act for the benefit of the person entitled.” Black’s Law Dictionary (9th ed. 2009). In other words, a positive right is ‘the freedom to do,’ as opposed to a negative right, which is ‘the freedom from.’ Id.

7Linda S. Bosniak, State Sovereignty, Human Right, and the New UN Migrant Workers Convention, in Widespread Migration: The Role of International Law and Institutions 86 Am. Soc’y. Int’l L. Proc. 623, 634 (1992).

8See, e.g., UDHR, supra note 3, art. 25.

9International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]; see infra Part I.B.

10 See infra Part I.A. Migrants without legal recognition or refugee status are not subject to the principles of non-refoulment. See Int’l Org. for Migration, International Migration Law: Glossary on Migration, 44–45 (2004).

11Convention Relating to the Status of Refugees art. 1, 28 July 1951, 189 U.N.T.S. 137 [hereinafter Refugee Convention].

12A refugee is an individual who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Id.

13See Maria Stavropoulou, The Right Not to Be Displaced, 9 Am. U. J. Int’l L. & Pol’y 689 (1994).

14Int’l Org. Migration, Perfil Migratorio de Paraguay [Paraguay Migration Profile] 5 (Hugo Addone ed., 2011). [hereinafter Paraguay Migration Profile].

15Id. at 19, 35.

16IOM Appeals for US$ 26 Million to Assist Victims of Famine and Drought in the Horn of Africa, Int’l Org. Migration (Aug. 5, 2011), http://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/iom-appeals-for-us-26-million-to-assist.html [hereinafter I.O.M. Appeals for US$ 26 Million].

17Int’l Org. Migration, Migration Mapping Service between Somalia and Dadaab in Kenya Highlights Need for Better Protection of Drought and Famine Victims (Nov. 22, 2011), http://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/migration-mapping-service-between-somali.html.

18See infra Part II.

19See ingra Part III.

20In situ refers to actions or remedies available at the location where the food scarcity or infraction occurs. Determining when in situ remedies are not available is a fact specific inquiry, critical to determining which food shortages give rise to the right to migrate. See, e.g., infra Part II.

21Claudio Grossman & Daniel D. Bradlow, Are We Being Propelled Towards A People-Centered Transnational Legal Order?, 9 Am. U. J. Int’l L. & Pol’y 1, 1 (1994). The Peace of Westphalia in 1648 ended both the Eighty Years’ War and Thirty Years’ War and established the concept of Westphalian Sovereignty: that nation-states have complete sovereignty over their territory with no role for outside actors to influence domestic affairs. Peace of Westphalia, Encyclopedia Britannica, http://www.britannica.com/EBchecked/topic/641170/Peace-of-Westphalia (last visited Jan. 22, 2014).

22Within the current human rights framework—where rights, like political power, is treated as zero-sum—a positive right to migrate due to food scarcity could create a conflict of rights between the rights of the migrants and the rights of the already-present, domestic population. A full analysis of this conflict of rights is beyond the scope of this Comment. However, holding all human rights as equal would naturally limit the rights of the migrants at the point in which their migration infringes upon the rights of the local population. Additionally, a people-centric approach to human rights eliminates the top-down nature of human rights and may limit or completely remove the zero-sum conflict. See infra Part I.C.

23See, e.g., 8 U.S.C. § 1101.

24See, e.g., Refugee Convention, supra note 11.

25See, e.g,, Migrant Workers Convention, supra note 5.

26See, e.g., American Convention on Human Rights, 22 Nov. 1969, 1144 U.N.T.S 123 (1979) [hereinafter ACHR].

27See, e.g., UDHR, supra note 3.

28See, e.g., art. 18 Constitución Nacional [Const. Nac.] (Arg.).

29See, e.g., Refugee Convention, supra note 12.

30International Covenant on Civil and Political Rights, art. 4, 11, 16 Dec. 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

31UDHR, supra note 3, art. 13.

32Id.

33Id.

34See, e.g., ICCPR supra note 30, art. 12.

35Id.

36Id.

37Jimmy Carter, U.S. Finally Ratifies Human Rights Convention, The Carter Center (June 29, 1992), http://www.cartercenter.org/news/documents/doc1369.html.

38Id.

39U.S. Const. art. II, § 2.

40See Carter, supra note 37.

41ACHR, supra note 26. The grant of asylum is legal recognition of refugee status, awarded only when the applicant demonstrates “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion.” See Refugee Convention, supra note 11, art. 1.

42See, e.g., ACHR, supra note 26.

43ICCPR, supra note 30, art. 12(3).

44ACHR, supra note 26, art. 22.

45Julia Preston, Obama Lifts a Ban on Entry into the U.S. by H.I.V.-Positive People, N.Y. Times, Oct. 31, 2009, at A9.

46See Carter, supra note 37; see also text accompanying note 37.

47See UDHR, supra note 3; Migrant Workers Convention, supra note 5; ICCPR, supra note 30; ACHR, supra note 26.

48Bosniak, supra note 7, at 635.

49The Migrant Workers Convention went into force in 2003, and by January 2014, 47 states had become parties by ratification or accession. Migrant Workers Convention, supra note 5.

50Id. art. 8.

51“Regular immigrant” refers to those immigrants in a country with legal documentation and permission. “Irregular immigrants” is used instead of the pejorative “illegal immigrant” to describe migrants who have not had their status regularized by the host state. See id. art. 5.

52Migrant Workers Convention, supra note 5.

53Migrant Workers Convention, supra note 5, art. 5, 7.

54Bosniak, supra note 7, at 635.

55Id. at 636.

56Id.

57Id.

58Migrant Workers Convention, supra note 5, arts. 14, 16–19, 22, 23, 25, 26, 28, 30, 70.

59Bosniak, supra note 7, at 636.

60Migrant Workers Convention, supra note 5, art. 79.

61Id.

62Bosniak, supra note 7, at 637.

63Status in the immigration context refers to the legal basis on which an immigrant is present in a country. Regularization of status refers to the legal procedures and processes of switching from irregular (i.e. illegal) status to a legally recognized status such as temporary worker or legal permanent resident. See e.g., Am. Immigr. Law. Ass’n, Navigating the Fundamentals of Immigration law: Guidance and tips for Successful Practice, 411–14 (Jill Marie Bussey et al. eds., 2014).

64Migrant Workers Convention, supra note 5, art. 35.

65Bosniak, supra note 7, at 637.

66Id.

67See e.g. Migrant Workers Convention, supra note 5, art. 79.

68See e.g. Refugee Convention, supra note 11, art. 26.

69Id., art. 35.

70See Refugee Consortium, infra note 232 and accompanying text at 34 (discussing humanitarian imperative of assisting Somali migrants during the 2011 famine).

71See Refugee Convention, supra note 11, art. 1.

72Refugee Convention, supra note 11, art. 1. The concept of refugee was originally introduced to handle the displaced populations resulting from World War II, and restricted refugee status to populations displaced prior to January 1, 1951. The definition was later expanded to include all internationally displace individuals who met the persecution requirements. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (entered into force 4 Oct. 1967).

73See Thomas Alexander Aleinikoff, et al., Immigration and Citizenship: Process and Policy, 798 (7th ed. 2012).

74Aristide R. Zolberg, Astri Suhrke, & Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (1989) in Thomas Alexander Aleinikoff, Davi A Martin, et al., Immigration and Citizenship: Process and Policy 797 (7th ed. 2012).

75Stavropoulou, supra note 13, at 689.

76See Sumudu Atapattu, Climate Change, Human Rights, and Forced Migration: Implications for International Law, 27 Wis. Int’l L.J. 607 (2009); Gil Marvel P. Tabucanon, Pacific Environmental Migration in a Warming World: Is There an Obligation Beyond State Borders?, 14 Vt. J. Envtl. L. 549 (2013).

77Refugee Convention, supra note 11, at 28.

78Stavropoulou, supra note 13, at 701.

79See infra Part I.B.ii.

80See Atapattu, supra note 76, at 631 (noting that the environmental refugee category would exclude groups where a causal link between climate change and environmental degradation cannot be shown); see also Environment and Heritage: Soil Degradation, New S. Wales Gov’t (Sept. 26, 2013), http://www.environment.nsw.gov.au/soildegradation/; Sara J Scherr & Satya Yadav, Land Degradation in the Developing World: Implications for Food, Agriculture, and the Environment to 2020, Int’l Food Pol’y Res. Inst. (1997) (recognizing land degradation as one cause of food scarcity).

81Bosniak, supra note 7, at 634.

82Nicole Angeline Cudiamat, Displacement Disparity: Filling the Gap of Protection for the Environmentally Displaced Person, 46 Val. U. L. Rev. 891, 922, 924 (2012).

83See Refugee Convention, supra note 11, art. 4.

84See Aleinikoff, supra note 73, at 798.

85Diana Cartier, Mali Crisis: A Migration Perspective, Int’l Org. Migration 6 (2013).

86Id. at 11.

87See Aleinikoff, supra note 73, at 798.

88Zolberg et al, supra note 74, at 797.

89See id.

90See id. A close reading of international instruments seems to favor the interpretation that states have an obligation to assist in these situations. Article 2 of the ICESCR requires states to “take steps, individually and through international assistance and co-operation . . . to the maximum of [their] available resources . . . including particularly the adoption of legislative measures.” Combined with article 11, which recognizes a right to an adequate standard of living including access to food, one could argue that states have a moral and arguably legal obligation to provide assistance to “mere victims”. ICESCR, supra note 9, arts. 2, 11.

91O.A.U. Convention Governing the Specific Aspects of Refugee Problems in Africa, art. I, Sept. 10, 1969, 1001 U.N.T.S. 46 [hereinafter O.A.U. Refugee Convention].

92Id.

93Cartagena Declaration on Refugees, Nov. 22, 1984, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1, art. 3 (1984–1985), 17 Apr. 1998.

94The Refugee Convention is about the status and treatment of refugees that a state has chosen to treat as lawfully present and does not provide an individual right to asylum. Refugee status does not guarantee a right to permanent residence or a range of other rights guaranteed to asylum recipients but in practice the nonrefoulment obligation (not expel or return a refugee to territories where his life or freedom would be threatened on account of the five protected categories) creates a de facto asylum status with all the entitlements enumerated in the Refugee Convention. The concern is over states losing control over admission and permanent residence. David A. Martin, The Refugee Concept: on Definitions, Politics, and the Careful Use of a Scarce Resource (1991) in Thomas Alexander Aleinikoff, David A. Martin, et al., Immigration and Citizenship: Process and Policy 804–06 (7th ed. 2012); Refugee Convention, supra note 11, art. 33.

95Martin, supra note 94, at 804–06.

96Stavropoulou, supra note 13, at 89.

97Id.; Refugees and Development 15 (Ernst Boesch et al. eds., 1983).

98The other requirements are (1) eligibility for recognition as an interpretation of the U.N. Charter, reflection of customary law, or declaration of general principles of law; (2) cable of achieving a high degree of international consensus; (3) compatibility with the general practice of states; and (4) is precise enough to give identifiable rights and obligations. Stavropoulou, supra note 13, at 694; Philip Alston, Conjuring Up New Human Rights: A Proposal for Quality Control, 78 Am. J. Int'l L. 607, 615 (1984).

99See infra Part I.B.2.

100Atapattu, supra note 76, at 608.

101Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Enwrl. L.J. 480, 484 (1998); Brooke Havard, Seeking Protection: Recognition of Environmentally Displaced Persons Under International Human Rights Law, 18 Vill. Envt’l L.J. 65, 69–70 (2007).

102Atapattu, supra note 76, at 636.

103Cooper, supra note 100, at 484; Havard, supra note 101, at 70.

104Atapattu, supra note 76, at 623; Dana Zartner, Falstrom, Stemming the Flow of Environmental Displacement: Creating a Convention to Protect Persons and Preserve the Environment, 13 Colo. J. Int'l Envtl. L. & Pol'y 1, 3 (2001).

105Stavropoulou, supra note 13, at 690. Consider the daunting task of defining and prohibiting all of the global factors that contribute to climate change and the subsequent rising sea levels; see Pauline Kleingeld, Kant’s Cosmopolitan Law: World Citizenship for a Global Order, 2 Kantian Rev. 72, 84 (1998). See generally Tabucanon, supra note 76.

106Desertification refers to the slow but relentless encroachment of the deserts into previously arable land due to climate change and human-caused environmental degradation. Richard Black, Environmental Refugees: Myth or Reality? 4 (UNHCR, Working Paper No. 34, 2011).

107Rising sea levels will make coastal and low lying islands uninhabitable and displace populations currently living in these regions. Tabucanon, supra note 76, at 564.

108Environmental conflict “is the notion that environmental degradation is increasingly at the root of conflicts that feed back into refugee movements.” Black, supra note 106, at 8.

109Id. at 2.

110Frank Biermann & Ingrid Boas, Preparing for a Warmer World: Towards a Global GovernanceSystem to Protect Climate Refugees, 10 Global Envtl. Pols. 60, 79 (2010).

111Id. at 631.

112Id. at 636.

113See generally Black, supra note 106, at 1. By definition refugee status requires persecution and therefore a prosecutor; the implication is that if Environmentally Displace Persons or Famine victims were to qualify as refugees the environment would have to be recognized as the persecuting agent. See Cudiamat, supra note 82, at 925.

114See Black, supra note 106, at 2–3.

115Id. at 5. Black looks to two frequently cited regions, the central Mexico and the Sahel. Id. He argues that, in Mexico, statistics do not show a correlation between emigration and aridity (desertification), and that there is no study showing that arid areas are necessarily degraded. Id. As for the Sahel, Black argues that “[f]actors such as the decline of markets for traditional cash crops . . . the development of Senegal’s groundnut basin, and subsequent mechanization of agriculture in the delta provide additional and more recent motivations to move out of the middle and upper parts of the Senegal River Valley. Moreover, such conclusions are not limited to the western Sahel, but can be extended across the continent.” Id.

116See id. at 8–9.

117“[I]n some cases, and particularly in the ‘complex political emergencies’ of the Great Lakes, Sierra Leone/Liberia, and Somalia, environmental issues can be seen to have some relevance in the development of hostilities, and a case can be made that environmental degradation forms an important root cause of the conflict.” Id. at 9.

118Id. at 10–11.

119Id. at 11.

120Atapattu, supra note 76, at 607.

121Id. at 630–31.

122See Black, supra note 106, at 8.

123Martin, supra note 94, at 804–06.

124Id.

125New South Wales Government, Environment and Heritage: Soil Degradation (Sept. 26, 2013), . Land degradation—such as desertification—results from improper agriculture, pastoral, or industrial use and is often exacerbated by climate change. Id. Land degradation results in reduced yields and, if left un-remedied, will lead to abandonment of the degraded land. See generally Sara J Scherr & Satya Yadav, supra note 80.

126See e.g., ICCPR, supra note 30, art. 6.

127See infra Part II.

128Andrews, International Protection of Human Rights 6 (1987) (describing how human rights law translates moral-laden natural law into prescriptive statutory law).

129See Makau Matua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 (2001) [hereinafter Savages, Victims, and Saviors].

130See Baraka, supra note 4, at 204; Makau Matua, The Transformation of Africa. A Critique of the Rights Discourse, in International Human Rights Law in a Global Context (Felipe Gomez Isa & Koen de Feyter, eds., 2009) [hereinafter The Transformation of Africa].

131Abdullah Ahmed An-Na’im, Introduction: Expanding Legal Protection of Human Rights in African Contexts, in Human Rights Under African Constitutions: Realizing the Promise for Ourselves 3 (Abdullah Ahmed An-Na’im ed., 2003).

132Andrews, supra note 128, at 5.

133See id.

134Id.

135Id. For instance, the law “you shall not kill” is both a prescription on the act of killing and the grant of a positive right to not be killed. The second level is the higher moral founding of these prescriptive laws. Id.

136See Savages, Victims, and Saviors, supra note 129, at 202. To take two examples from the UDHR: Article 1 establishes that “[a]ll human beings are born free and equal” and Article 21 states that everyone “has thethethesthethe right to take part in the government of his country.” UDHR, supra note 3, arts. 1, 21. The equality of human beings or the superiority of democratic government are clear examples of rights do not have their origins in codified prescriptive laws but in moral value judgments.

137Andrews, supra note 128, at 6. In the United States, the equality of human beings was not achieved until prescriptive laws—namely the 13 and 14 amendments and civil rights legislation—afforded protection to that right. See id.

138 Id. at 8; see e.g., John Locke, Two Treatises of Government 76 (Thomas J. Cook ed., 1947) (proposing a social contract between the state and citizens).

139Andrews, supra note 128, at 8.

140Id.

141Id.

142Id. These rights rose out of the industrial revolution and social unrest of the late 19th and early 20th century.

143Id.

144Id.

145Id.

146Id.

147ICESCR supra note 9, art. 11.

148UDHR, supra note 3, art. 25.

149Andrews, supra note 128, at 11.

150ICESCR supra note 9, arts. 11, 12.

151Id. art. 11.2(a).

152 Id. art. 11.2(b).

153 See infra Part II.A; Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation 2 (1981) (Arguing that famines result from people not having enough food to eat due to changing entitlements, not due to actual food scarcity in the market).

154See Food Assistance Convention, arts. 2, 4, C.N.215.2012.TREATIES-XIX.48 (May 9, 2012); see also infra Part III.

155Andrews, supra note 128, at 23.

156Id. at 26.

157Id.

158Id.; see e.g., Convention on the Prevention and Punishment of the Crime of Genocide (New York, 9 Dec. 1948) 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) (144 states are parties to the convention).

159Andrews, supra note 128, at 24.

160See Baraka, supra note 4.

161An-Na’im, supra note 131, at 1.

162Id.; see also Savages, Victims, and Saviors, supra note 129, at 211 (noting that the UDHR represented “the first time [that] the major powers drew a line demarcating impermissible conduct by states toward their own people and created the concept of collective responsibility for human rights”).

163An-Na’im, supra note 131, at 1.

164Savages, Victims, and Saviors, supra note 129, at n.76. For example, the ICCPR sets forth the rights of the individual and then declares the intent to bind the parties, stating: “[e]ach State Party. . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Id. (quoting ICCPR, supra note 30, art. 2).

165Claudio Grossman & Daniel D. Bradlow, supra note 21, at 1 (1994). Sovereignty is defined as the principle that each state is the master of its own territory except where limited by treaties or international law. Id.

166See id. at 1–2.

167Id. at 6.

168Id. at 7.

169See Austen L. Parrish, Rehabilitating Territoriality in Human Rights, 32 Cardozo L. Rev. 1099, 1109 (2011).

170See Baraka, supra note 4.

171The Transformation of Africa, supra note 130, at 899.

172Andrews, supra note 128, at 6; Savages, Victims, and Saviors, supra note 129, at 206 (“What, for example, are fundamental human rights, and how are they determined? Do such rights have cultural, religious, ethical, moral, political, or other biases?”).

173Baraka, supra note 4.

174Id.

175Id.; Savages, Victims, and Saviors, supra note 129, at 204.

176Savages, Victims, and Saviors, supra note 129, at 204–05.

177Id. at n.11.

178Id. at 203.

179Id. at n.11.

180Andrews, supra note 128, at 7.

181Id. at 8.

182Id. at 7.

183 Id.

184Baraka, supra note 4.

185The Transformation of Africa, supra note 130, at 899.

186Id.

187Id. at 922.

188Id.

189Id.

190See infra Part II.

191Id.

192Baraka, supra note 4.

193Id.

194 Sen, supra note 153, at 40. It is estimated that 260,000 Somalis died from the 2011 famine, half of them under the age of six. Associated Press, Somalia: Famine Toll in 2011 Was Larger Than Previously Reported, N.Y. Times (Apr. 29, 2013), http://www.nytimes.com/2013/04/30/world/africa/somalia-famine-toll-in-2011-was-larger-than-previously-reported.html.

195 Sen, supra note 153, at 162.

196I.O.M. Appeals for US $26 Million, supra note 16.

197See infra Part II.B.i.

198See Cudiamat, supra note 82, at 922; Andrew E. Shacknove, Who is a Refugee?, 95 Ethics 274, 279–80 (Jan. 1995).

199 See generally Sen, supra note 153, at 56, 87–88, 119. During the Great Bengal Famine of 1942–43 there was mass peasant immigration to Calcutta; at the peak of the Ethiopian Famine of 1972–74, 60,000 people had migrated to Addis Ababa and were living refugee camps; the famines which plagued the Sahel in 1972–1973 drove the pastoral population to camps in the South. Id.

200 Id. at n.2 (reporting that various scholars define famine as: (1) “food shortage [that] is either widespread or extreme if not both, and that the degree of extremity is best measured by human mortality from starvation;” (2) “[a]n extreme and protracted shortage of food resulting in widespread and persistent hunger, evidenced by loss of body weight and emaciation and increase in the death rate caused either by starvation or disease resulting from the weakened condition of the population;” and (3) “an economic and social phenomenon characterized by the widespread lack of food resources which, in the absence of outside aid, leads to death of those affected.”).

201 Id. at 162.

202 Id.

203 Id. at 1. But see Peter Bowbrick, The Causes of Famine: A refutation of Professor Sen’s Theory, Food Policy, 105 (May 1986) (using the Bengali Famine to contest Sen’s “demand side analysis”).

204Exchange entitlement is the bundle of commodities that an individual can acquire in exchange for what he owns. Exchange occurs either through trading, production, or a combination of the two. Exchange entitlements are determined by (1) if an individual can find employment, at what wage and for how long; (2) what he can earn by selling non-labor assets; (3) what he can produce on his own; (4) the cost of purchasing resources and the value of the products he can sell; and (5) social security benefits and entitlements and the cost of taxes. Sen, supra note 153, at 3–4.

205I.O.M. Appeals for US$ 26 Million, supra note 16.

206Shacknove, supra note 198, at 922.

207ICESCR, supra note 9, art. 11.2(b).

208Black, supra note 106. In fact they do not qualify for any refugee status because they are not the victims of persecution. See supra Part I.B.

209Black, supra note 106, at 6.

210 Sen, supra note 153, at 124.

211Id.

212See Refugee Convention, supra note 11.

213Cudiamat, supra note 82, at 922.

214Joy A Weber, Famine Aid to Africa: An International Legal Obligation, 15 Brook. J. Int’l L. 369, 373 (1989).

215See Cudiamat, supra note 82, at 922.

216Weber, supra note 214, at 374–75.

217The economic down turn of 2008 caused global food prices to rise by 25%, with the price of corn doubling from the price in 2006 and wheat prices reaching a 28-year high. The World Food Crisis, N.Y. Times (Apr. 10, 2008) available at, http://www.nytimes.com/2008/04/10/opinion/10thu1.html.

218Paul Harvey, Karen Proudlock, Edward Clay, Barry Riley, & Susanne Jaspars, Food Aid and Food Assistance in Emergency and Transitional Contexts: A Review of Current Thinking, 7 (Humanitarian Policy Group, June 2010).

219Other significantly affected populations were the rural landless, displaced persons, and urban poor. Id.

220I.O.M. Appeals for US$ 26 Million, supra note 16.

221Id.

222Horn of Africa Famine, UNICEF http://www.unicefusa.org/work/emergencies/horn-of-africa/ (last visited Feb. 12, 2014).

223Associated Press, Somalia: Famine Toll in 2011 Was Larger Than Previously Reported, New York Times (Apr. 29, 2013) http://www.nytimes.com/2013/04/30/world/africa/somalia-famine-toll-in-2011-was-larger-than-previously-reported.html.

224Somalia Country Profile, Int’l Org. Migration (Aug. 2014) www.iom.int/cms/en/sites/iom/home/where-we-work/africa-and-the-middle-east/east-africa/somalia-1/somalia-country-profile.html.

225I.O.M. Appeals for US$ 26 Million, supra note 16.

226Thirty Thousand Somalis Given Shelter as IOM Pitches Last Tents at Camp in Kenya, Int’l Org. Migration (Dec. 16, 2011), https://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/thirty-thousand-somalis-given-shelter-as.html.

227100,000 Displaced Somalis Assisted By IOM To Reach Camps In Kenya And Ethiopia Since The Influx, Int’l Org. Migration (Jan. 31, 2012), http://appablog.wordpress.com/2012/01/31/100000-displaced-somalis-assisted-by-iom-to-reach-camps-in-kenya-and-ethiopia-since-the-influx/.

228See Mary Harper, Getting Somalia Wrong?: Faith, War, and Hope in a Shattered State 105–06 (2012) (defining failed state as one “that can no longer perform its basic security and development functions and that has no effective control over its territory and borders.”).

229See Int’l Org. Migration, Migrants in Times of Crisis: An Emerging Protection Challenge, International Dialogue on Migration 4 (2012) (“First, States bear the primary responsibility to protect and assist crisis-affected persons residing on their territory.”) [hereinafter Migrants in Times of Crisis].

230See Harper, supra note 228, at 104–06.

231Int’l Org. Migration, Migration Mapping Service between Somalia and Dadaab in Kenya Highlights Need for Better Protection of Drought and Famine Victims, ReleifWeb (Nov. 22, 2011), http://reliefweb.int/report/kenya/migration-mapping-service-between-somalia-and-dadaab-kenya-highlights-need-better [hereinafter Migration Mapping Service].

232Refugee Consortium of Kenya, Asylum Under Threat: Assessing the Protection of Somali Refugees in Dadaab Refugee Camps and Along the Migration Corridor 9 (2012).

233Id. at 7.

234Constitution, art. 2, §5 (2010) (Kenya).

235See constitution, art. 26–51 (2010) (Kenya).

236Refugee Consortium of Kenya, supra note 232, at 20.

237Id.

238Id.

239The Mandate’s refugee definition was expanded beyond the Refugee Convention to include sex as a ground for persecution. The Prima Facie definition was changed to the language in the expanded OAU Convention definition that includes “events seriously disturbing public order” Refugee Consortium of Kenya, supra note 232, at 21.

240Id. at 42.

241See supra Part I.

242Refugee Consortium of Kenya, supra note 232, at 10.

243Id. at 30.

244Id. at 34.

245Id. at 34.

246This lengthened the trip for many Somalis and contributed to excess mortality from the famine. IOM Finds Life Threatening Conditions on the Road to Dadaab; Responds to Emergency in Ethiopia’s Refugee Camps, Int’l Org. Migration (Jul. 29, 2011), https://www.iom.int/cms/en/sites/iom/home/news-and-views/press-briefing-notes/pbn-2011/pbn-listing/iom-finds-life-threatening-conditions-on.html. See also Refugee Consortium of Kenya, supra note 232, at 88 (“In the context of the 2011 famine and refugee crisis, the continued refusal by the Government of Kenya to open the border, lack of access to nutrition, health, water and transport facilities at Liboi was an egregious protection failure, contributing for several months to excess mortality in the first days of arrival in the camps.”).

247Migrants in Times of Crisis, supra note 226, at 5 (“all migrants, irrespective of their status, are entitled to the full protection of their human rights by the mere virtue of their humanity.”).

248Refugee Consortium of Kenya, supra note 232, at 88.

249See The World Fact Book: Paraguay, C.I.A., https://www.cia.gov/library/publications/the-world-factbook/geos/pa.html (last visited Jan. 23, 2014).

250Hunger Map, supra note 1.

251The level of undernourishment rises to 33%, the second highest level in Latin America, if calculated based the actual caloric expenditures due to average daily physical activity. Food Security Indicators, Food & Agric. Org. U.N. (Dec. 2013), http://www.fao.org/economic/ess/ess-fs/ess-fadata/en/#.UuMmEWQo41I; Paraguay, FAOStat http://faostat.fao.org/CountryProfiles/Country_Profile/Direct.aspx?lang=en&area=169 (last visited Jan. 24, 2014).

252See generally Paraguay Migration Profile, supra note 14, at 3.

253The origins of the war are beyond the scope of this paper but it was the bloodiest war in South American history and occurred between Paraguay and a triple alliance of Brazil, Argentina, Uruguay, ending in 1870. War of the Triple Alliance, Encyclopedia Britannica, http://www.britannica.com/EBchecked/topic/442711/War-of-the-Triple-Alliance (last visited Jan. 23, 2014).

254Paraguay Migration Profile, supra note 14, at 3.

255Id.

256Id. at 11.

257Id.

258Ley No. 978/1996 De Migraciones [Law No. 978/1996 Of Migrations], Art. 2(b), (c) (Para.).

259Id.

260Paraguay Migration Profile, supra note 14, at 12.

261Id.

262Paraguay Migration Profile, supra note 14, at 36.

263Id. at 3.

264Agronegocios, Acaparamiento de Tierras y Transgénicos Detrás del Golpe de Estado en Paraguay [Agribusiness, Land Grabbing and Transgenics behind the Coup in Paraguay], Centro de Documentación y Estudios [Ctr. for Documentation and Res.] (Jun 25, 2012) http://www.cde.org.py/web/index.phpnoticias/72-agronegocios-acaparamiento-de-tierras-y-transgenicos-detras-del-golpe-de-estado-en-paraguay.

265Id.

266See Michael Antoniou, et al., GM Soy: Sustainable? Responsible?, 25 (2010), http://gmwatch.eu/images/pdf/gm_full_eng_v15.pdf (finding about 9,000 rural families are evicted by soy production each year, by armed eviction or aerial spraying of toxic pesticides close to homes.); see also Stephanie Williamson, Rural Communities in Paraguay Endangered by Soya Pesticides, Pesticide Action Network – UK (Sept. 2008), http://www.pan-uk.org/pestnews/Issue/pn81/pn81_p12-15.pdf. In eight communities studied, 78% of families suffered from pesticide-related illnesses and 60% were displaced from their land do to agrochemical contamination of water sources. Id.

267See e.g., Movimiento Campesino Paraguayo [Paraguayan Peasant Movement], http://www.okaraygua-paraguai.org/es/; Coordinadora Nacional de Organizaciones de Mujeres Trabajadores Rurales e Indiginas (Conamuri) [National Coordinator of Organizations of Working Rural and Indigenous Women], http://conamuri.org.py/index.html.

268Conamuri, Paraguay: Golpe de Estado y Asesinatos. Multinacionales del Agronegocio y Resistencia Campesina [Paraguay: Coup and Murders, Multinational Agribusiness and Peasant Resistance] (Jan. 2013), http://www.grain.org/fr/article/entries/4642-paraguay-golpe-de-estado-y-asesinatos-multinacionales-del-agronegocio-y-resistencia-campesina.

269Centro De Documentación y Estudios, supra note 264.

270Paulo Lopez, El éxodo paraguayo: sus causas y consecuencias [The Paraguayan Exodus: Its Causes and Consequences], E’a (Mar. 7, 2012), ea.com.py/el-exodo-paraguayo-sus-causas-y-consecuencias/.

271Agriculture made up 34.3% of the labor employment in the country in 2002 and 29.5% in 2009. Id.; Agriculture made up 34.3% of the labor employment in the country in 2002 and 29.5% in 2013. Paraguay Migration Profile, supra note 14, at 20.

272Id. at 22.

273A GINI coefficient measures the extent to which household income and consumption deviates from perfectly equal distribution, where 0 signifies perfect equality and 100 signifies perfect inequality. Of the 136 countries with available data, South Africa is the most unequal with a coefficient of 63.1 (2005), Sweden is the most equal with 23.0 (2005), and the U.S. ranks 46 with a coefficient of 45.0 (2007). GINI index, The World Bank, http://data.worldbank.org/indicator/SI.POV.GINI (last visited Jan. 23, 2014); C.I.A., supra note 249.

274Paraguay Migration Profile, supra note 14, at 14.

275See Lopez, supra note 270 (noting how land sales and the establishment of foreign farms in the 1970s post-war period provoked the emigration of an evicted Paraguayan population); see also Paraguay Migration Profile, supra note 14, at 12 (stating that subsequent to the opening of the “agriculture frontier,” immigrants were predominately Brazilian).

276Paraguay Migration Profile, supra note 14, at 19; Resoluciones del 10 Congreso del MCP [Resolutions of the 10th Congress of the Paraguayan Peasant Movement], MCP (Oct. 26, 2010), www.okaraygua-paraguai.org/news/es_ES/2010/10/26/0001/resoluciones-del-10o-congreso-del-mcp.

277Paraguay Migration Profile, supra note 14, at 19.

278Id.

279Id. at 4.

280Id. at 35.

281Id. at 36.

282Id. at 11, 36.

283Id. at 19.

284Id. at 4.

285See supra Part I.B.

286See Antoniou, supra note 266; Paraguay Migration Profile, supra note 14, at 3; Williamson, supra note 266.

287Janet Kovin Levit, The Constitutionalization of Human Rights in Argentina: Problem or Promise?, 37 Colum. J. Transnat’l L. 281, 288 (1999).

288Id. at 288–89.

289Id. at 283, 288.

290Id.

291Barbara Hines, The Right to Migrate as a Human Right: The Current Argentine Immigration Law, 43 Cornell Int’l L.J. 471, 472 (2010).

292See id.

293Id.

294Law No. 25.871, art. 4, Dec. 17, 2003, [30322] B.O. 2 (Arg.).

295Hines, supra note 291, at 472; cf. Part I.A.

296Int’l Org. Migration, supra note 16, at 62–63. The First Forum of Migrants in Paraguay in 2009 coincided with the Third Forum on Migration and American Platense Civil Rights Community. The Forum discussed immigration, immigrant labor rights, discrimination, and xenophobia and ratified a resolution declaring the right to migrate was a human right that must be respected by nation-states. Id.

297Law No. 25.871, art. 7, 8, Dec. 17, 2003, [30322] B.O. 2 (Arg.).

298Id. art. 10.

299Argentina, Int’l Org. Migration (Nov. 22, 2013), http://www.iom.int/cms/en/sites/iom/home/where-we-work/americas/south-america/argentina.html.

300Ministerio de Relaciones Exteriores y Culto [Ministry of Foreign Relations and Worship], Programa Patria Grande [Great Homeland Program], Gov’t Arg., http://cpays.cancilleria.gov.ar/en/node/10066 (last visited Feb. 12, 2014).

301Ministerio del Interior [Ministry of the Interior], Patria Grande: Programa de Normalización Documentaria Migratoria, Informe Estadistico [Great Homeland: Program for Standardization of Migration Documentary, Statistical Report], 5, 25 (Aug. 2010), available at http://www.migraciones.gov.ar/pdf_varios/estadisticas/Patria_Grande.pdf.

302Law No. 25.871, art. 4, Dec. 17, 2003, [30322] B.O. 2 (Arg.).

303Eduardo E. Demenoch, La “Nueva Política Migratoria” en la Argentina: Las Paradojas del Programa “Patria Grande” [The “New Migration Policy” in Argentina: the Paradoxes of the “Great Homeland” Program] in Migraciones Internacionales Contemporáneas: Estudios Para el Debate [Contemporary International Migrations: Studies for Debate] 123 (Cyntia Pizarro, Ed. 2011).

304See Hines, supra note 291, at 472–73, 509.

305Weber, supra note 214, at 384–85.

306 See e.g., Food Assistance Convention, May 8, 2012, C.N.215.2012.TREATIES-XIX.48.

307Monitoring Progress Since the World Food Summit, World Food Summit, available at http://www.fao.org/wfs/index_en.htm [hereinafter Declaration of the World Summit].

308World Summit on Food Security, Declaration of the World Summit on Food Security, art. 16 (Nov. 16–18, 2009).

309Food Assistance Convention, supra note 306, art. 2.

310See Weber, supra note 214, at 387.

311The other signatories are: Austria, Bulgaria, Denmark, The European Union, Finland, France, Greece, Luxembourg, Portugal, and Switzerland. Food Assistance Convention, supra note 306.

312Food Assistance Convention, supra note 306, art. 4. “The DAC List of ODA Recipients shows all countries and territories eligible to receive official development assistance (ODA). These consist of all low and middle income countries based on gross national income (GNI) per capita as published by the World Bank, with the exception of G8 members, EU members, and countries with a firm date for entry into the EU. The list also includes all of the Least Developed Countries (LDCs) as defined by the United Nations (UN).” DAC List of ODA Recipients, OECD, http://www.oecd.org/dac/stats/daclistofodarecipients.htm (last visited Jan. 11, 2014).

313See World Summit on Food Security, supra note 307.

314See supra Part II.C.2.

315Food Assistance Convention, supra note 306, art. 2.

316There are three significant trends in food aid: (1) Emergency relief is an increasingly large percentage of overall aid, with a decline in food aid for development purposes; (2) There is a movement toward procuring food aid from local and regional sources; (3) Non OECD-DAC governments are becoming increasingly important funders but major food donors remains mostly unchanged: the US provides around half of all food aid, followed by EU, Canada, and Japan while the top five recipients of food aid in 2008 were Ethiopia, Sudan, Somalia, Zimbabwe, and Afghanistan. Harvey, supra note 218, at 2.

317Food Assistance Convention, supra note 306.

318See generally Hunger Map, supra note 1.

319See Harper, supra note 228 at 105–06 (acknowledging that the government of Somalia cannot perform basic security or development functions).

320Cf. Law No. 978/1996, supra note 258, art. 20.

321See Declaration of the World Summit, supra note 307.

322See discussion infra Part II.A.

323Id.

324Black, supra note 106, at 6.

325 See Martin, supra note 94, at 804–06.

326See Immigration and Naturalization Act, 8 U.S.C. § 1158(c)(2) (2009).

327See Refugee Convention, supra note 11, at 152–54.

328See e.g., Cudiamat, supra note 82, at 925 (arguing that for environmental refugees, the environment is the persecuting agent).

329Martin, supra note 94, at 804–06.

330IOM Appeals for US $26 Million, supra note 16.

331Id.

332See id.

333Paraguay Migration Profile, supra note 14, at 5–6.

334See Antoniou, supra note 266; Williamson, supra note 266, at 5. However, the forced removals and aerial spraying seem best remedied by human rights or domestic civil and criminal law.

335Paraguay Migration Profile, supra note 14, at 3.

336See generally Harper, supra note 228, at 105 –06.

337Paraguay Migration Profile, supra note 14, at 5–6.

338See Ley No. 978/1996 De Migraciones [Law No. 978/1996 Of Migrations], Art. 20 (Para.); Paraguay Migration Profile, supra note 14, at 5–6.

339See Refugee Consortium of Kenya, supra note 232, at 30.

340See supra Part II.

341See Refugee Consortium of Kenya, supra note 232, at 23–26 (noting how Somali refugees in Dadaab are often denied guaranteed rights including right to engage in wage-earning employment, right to own property, right to practice a profession, right to self-employment, access to housing and right to choose place of residence).

342See Ahmed An-Na’im, supra note 131, at 1.

343 See id. at 1–2.

344The Transformation of Africa, supra note 130, at 922.

345See discussion infra Part II.

346Weber, supra note 214, at 386–87 (it is much easier to persuade states to abstain from certain activities).

347See generally Grossman, supra note 165, at 1–2.

348See Parrish, supra note 169, at 1100–01.

349See Ahmed An-Na’im, supra note 131, at 1; see also Savages, Victims, and Saviors, supra note 129, at 202–03.

350See discussion infra Part II.

351See Law No. 25.871, art. 4, Dec. 17, 2003, [30322] B.O. 2 (Arg); Ministerio de Relaciones Exteriores y Culto [Ministry of Foreign Relations and Worship], Programa Patria Grande [Great Homeland Program], Gov’t Arg., http://cpays.cancilleria.gov.ar/en/node/10066 (last visited Feb. 12, 2014).

352100,000 Displaced Somalis, supra note 227.

353See e.g. Baraka, supra note 4; Savages, Victims, and Saviors, supra note 129, at 204.

354See discussion infra Part II.

355See Baraka, supra note 4; see generally Savages, Victims, and Saviors, supra note 129.

356See discussion infra Parts II.A, II.B.

357Cartier, supra note 85, at 8 (traditional circular migration patterns of pastoralist and nomadic groups is used to gain access to better pasture, land, and water and is viewed as a positive adaptation for insecure climates).

358See, e.g., UDHR, supra note 3, art. 25.

359Id.

360See e.g., id. art. 13; Migrant Workers Convention, supra note 5, art. 8.

361See Parrish, supra note 169, at 1100–01 (territoriality has been the cornerstone of an international system that, for centuries, has operated on the Westphalian principles of state sovereignty and nonintervention).

362See, e.g., The Transformation of Africa, supra note 130, at 899.

363Id.

364See e.g., infra Part II.A.ii (discussing the role of NGOs in assisting Somali refugees).

365The belief that there is a “clear distinction between domestic and international legal issues is fundamentally flawed” and international law needs to recognized and incorporate all international actors into its jurisdiction. Grossman, supra note 165, at 22–23. However, the exact means of creating this new regime should be the product of collaboration between diverse international actors that exceeds the scope of this Comment.

366Food Assistance Convention, supra note 306, art. 2; see infra Part I.C.

367But cf. Parrish, supra note 169, at 1136 (recognizing and arguing against the new discourse that places the person at the center of the international legal system and favors non-territorial models).

368Id.

369See infra Part II.B.ii (discussing Argentine Law No. 25.871 and Patria Grande).

370See Parrish, supra note 169, at 1136.

Notes & Comments Editor, Emory International Law Review; J.D. Candidate, Emory University School of Law (2015); B.A., University of Colorado Boulder (2007). The author wishes to thank Dr. Abdullahi An-Na'im, Dori Cohen, and Eli Burton for their assistance in the course of writing this paper.