Call for Papers on “Managing Mixed Migration”

The Yale Journal of International Law is pleased to announce the call for papers for the Volume 47 Symposium on “Managing Mixed Migration.”

The phrase “mixed migration” is typically used to describe regional patterns of cross-border movement of people who are prima facie refugees and people who move for economic reasons. Globally, migration is always mixed: people move for work or education, people move for humanitarian reasons, people are moved by governments, and people move for family. We’re interested in essays that explore how the categories of migration drawn by governments interact with international trade law, international environmental law, international human rights law, and international refugee law. We’re also interested in comparative and theoretical accounts of the distinctions that governments create between categories of migrants when faced with changing patterns of migration or changing needs in receiving countries.

We will select essays on the basis of abstracts of up to 500 words. Alternatively, you may submit a complete essay. Final essays should be between 3,000 and 5,000 words. Selected essays will be published in the Features section of the Yale Journal of International Law’s website, and may also be featured in a special print edition of the Yale Journal of International Law. Authors may have the opportunity to participate in individual or panel presentations about their work.

Submissions are due August 31 at 11:59 p.m. ET. Please send submissions as Microsoft Word or PDF files by email to yjil@yale.edu, using the subject line “2021_symposium.” For accepted submissions sent in abstract form, complete drafts will be due on November 15.

Forum: Disaster Risk Governance and COVID-19 – Accountability, Transparency, and Corruption

Written by Hugo Cahueñas*

With devastating effects across the globe, the COVID-19 pandemic constitutes a “slow-onset disaster” [1] and warrants analysis through a disaster risk reduction framework. [2]  Several countries, including Ecuador, have already recognized the need to use a disaster risk reduction lens, having responded to the pandemic through their disaster risk management systems. [3] To reduce the risk of disasters, the United Nations General Assembly has adopted the Sendai Framework, which lists among its priorities “strengthen[ing] disaster risk governance to manage disaster risk,” [4] thus reducing vulnerabilities and underdevelopment. [5]

Governance is also used here in a broad sense, comprising all formal governmental institutions and all stakeholders, including networks and markets.[6] Disaster governance under the Sendai Framework includes three main components: a) authority; b) decision-making; and c) accountability.[7] Accountability refers to the idea of calling someone to account for their actions.[8] Moreover, corruption and a lack of transparency reduce people’s trust in a government, which consequently inhibits effective disaster governance.[9] This piece will discuss these three related elements of disaster risk governance: accountability, transparency, and corruption. I will also provide examples of disaster risk governance in response to COVID-19 that illustrate these themes. Recent research focused on the response to the COVID-19 pandemic in Nigeria, for instance, has found that the absence of accountability and transparency measures creates a trust issue between the governed and the government. [10] Citizens will be more trusting of a government with improved disclosure and impact reporting, and any effective anti-corruption strategy needs to enforce sanctions against government institutions that do not report.[11] Ultimately, the handling of the COVID-19 pandemic demonstrates the need for updating the accountability and transparency standards for Disaster Risk Reduction (DRR), with a particular emphasis on the health-systems approach to preparedness and response.

Accountability

While hazards are unpredictable and uncontrollable, government actions and responsibilities are not. [12] It is crucial to enhance accountability for disasters by establishing institutional and technical mechanisms to address risk. [13] To reinforce disaster risk governance at the global and regional levels, the Sendai Framework recommends strengthening international voluntary mechanisms to monitor and assess disaster risks, including mechanisms that promote the exchange of non-sensitive information to the relevant national governing bodies and stakeholders in the interest of sustainable social and economic development. [14]

Regretfully, the Sendai Framework is a soft law instrument, thus its “focus is on voluntary, rather than compulsory mechanisms coupled with sanctions.” [15] Consequently, consensus and broad incentives are the pathways available for improving governance accountability for DRR globally. [16]

Accountability requires “[…] the definition of roles and responsibilities, the granting of adequate powers to discharge such responsibilities, the existence of adequate means and resources and, finally, relevant mechanisms which can bring people and institutions to account.” [17] Such mechanisms can be judicial, quasi-judicial, administrative, political or social and may perform both prescriptive—focusing on the internalization of norms and adjustment of conduct through continual dialogue and policy—and retrospective—assessing conduct after the fact to obtain reparations—functions. [18]

The Sendai Framework acknowledges the need for enhanced accountability for reducing existing risks and preventing new ones.[19] This framework, however, only refers to accountability, but does not intend to guarantee accountability. [20] Therefore, implementation of the Sendai requires taking meaningful actions to ensure accountability. [21] As such, it is necessary to look beyond the Sendai to see what actions have been taken to hold states responsible for disaster risk management (DRM.) In a few disaster-related cases, for instance, the European Court of Human Rights (ECtHR), held that states which did not undertake preventive measures in DRM were accountable for violating rights recognized in the European Convention on Human Rights (ECHR), a legally binding treaty. [22]

States also need to take steps to enhance individual accountability by government officials in disasters. [23] At the national level, criminal and civil courts have already resolved cases relating to individual negligence linked to disasters. In one case in Italy, seven scientists were held criminally liable for erroneously downplaying the risks related to the seismic developments in a town just days before the 2009 L’Aquila earthquake. [24] Similarly, in Chile, four government officials stand accused of failing to issue a timely tsunami alert following the country’s 2010 earthquake. [25]

Disaster risk governance requires new accountability structures and frameworks, including explicit measures  that contemplate and redefine questions about “to whom” accountability is owed and “from whom” accountability stems. [26] Redefining these questions is necessary in order to properly evaluate the performance and effectiveness of those laws, regulations, and procedures. Critical to this reconceptualization is holding all stakeholders accountable, not only governmental entities, [27] which can be achieved through clear institutional rules and demarcation of roles. [28]

The COVID-19 pandemic has had implications for this understanding of accountability in DRM, ” underscor[ing] the need for governments to improve their outbreak preparedness and response by incorporating a health-systems approach.” [29] For instance, following recommendations from the WHO’s health systems framework and other national and international public-health guidance, every country should:

  1. Improve public health communication and health literacy.
  2. Facilitate robust surveillance and reporting.
  3. Develop pandemic preparedness, with an emphasis on maintaining sufficient qualified healthcare workers and medical equipment.
  4. Strengthen health systems through widespread funding increases.
  5. Ensure health and social equity.
  6. Ensure that strategies to restrict people’s movement take into account health and socioeconomic effects. [30]

In Ecuador, the Constitutional Court has stated that the National Assembly must assume a proactive role in this health crisis by adopting special regulations based on technical criteria coordinated with health and risk institutions. [31] The delay in taking these essential measures to tackle the pandemic and its economic consequences exemplifies that public authorities are “not exercising, with adequate seriousness, their duty to coordinate actions to fulfill their purposes and to make effective the exercise of constitutional rights that are being threatened[…].” [32]  Consequently, the lack of an institutional response “is not attributable only to the harmful and unpredictable consequences of the pandemic caused by COVID-19, but also is direct responsibility of the State […].” [33]  Under DRR standards, this lack of an adequate response at the different levels of Ecuadorian government would need to be addressed through accountability mechanisms. As Ecuador’s case shows, the demarcation of roles and responsibilities in government actions is fundamental to risk reduction. Moreover, DRR accountability requires effective mechanisms and compulsory rules applicable to all stakeholders.

Transparency

Transparency plays a vital role in promoting accountability by allowing actors to employ markets, discourses, and norms against various global institutions, including states, international organizations, and transnational corporations. [34] In order to ensure a transparent assignment of tasks and make policy action predictable, a disaster risk governance approach would take into account the broader framework of public policymaking, which encompasses the executive branch of government at the national and local levels, the interface of the public and the private sector, and the actors who may be directly or indirectly affected by disasters. [35] Disaster risk governance requires improving “relevant mechanisms and initiatives for disaster risk transparency, which may include […among others…] reporting requirements and legal and administrative measures.” [36]

In the context of the COVID-19 pandemic, Transparency International has called on “governments to act with greater transparency to improve the procurement of lifesaving medicines and vaccines, promote open and transparent contracts, prevent price gouging of drugs and medical supplies[…].” [37] The Ecuadorian Constitutional Court has expressed a similar idea in its recent rulings, noting that  “authorities in charge of public procurement must guarantee transparency, render accounts, inform, promote, publicize the entire cycle of public procurement, and inform the State Comptroller General about the anomalies found.” [38] Transparency in government actions during the pandemic is crucial to reducing disaster risk.

Corruption

Besides accountability and transparency, corruption is also a challenge for effective disaster risk governance. [39] Regretfully, the Sendai Framework does not meaningfully confront the problem of corruption. In discussing the aftermath of a disaster and the “Build Back Better” [40] approach during the phases of recovery, rehabilitation and reconstruction, however, Sendai’s Priority 4 mentions that the “construction industry […]  is one of the sectors most susceptible to corruption.” [41] Corruption exacerbates disaster vulnerability, [42] thus it is a crucial part of disaster risk governance that should no longer be ignored. [43] The aftermath of the 2008 Sichuan earthquake in China illustrates the centrality of corruption to a disaster risk governance analysis. School buildings in the affected area were severely impacted by the earthquake because these constructions did not meet regulatory standards as a result of the mismanagement of public funds. [44] Similarly, the Turkish earthquake disasters of 1999 and 2003 that claimed over 40,000 lives and destroyed over 300,000 homes can be “attributed in large part to government and industry corruption, gross negligence and state links to organized crime, [including corruption] in the form of privileged access to public procurement, unwarranted loans and bribes for politicians.” [45] Finally, research on the transfers from Bulgaria’s central government to municipalities intended to aid reconstruction following torrential rain in 2004 and 2005 concluded that “increased disaster aid led to more corrupt spending by local governments.” [46]

This risk of corruption has increased during the COVID-19 pandemic. In Colombia, a study [47] concluded that “the pandemic increased the incidence and the value of discretionary contracts, especially in places that have traditionally had low levels of state capacity and high levels of corruption.” [48] The simplification of procurement rules “increases the discretion of public officials, [which] may create corruption opportunities that could offset the full potential benefits of the policies aimed at promoting short-term relief spending in the face of large negative shocks.” [49]

In Ecuador, the Constitutional Court has highlighted every citizen’s constitutional duty to denounce and combat acts of corruption. The Ecuadorian Attorney General’s Office is tasked with investigating alleged corruption, while judges and courts must do their part by sanctioning those who commit corruption-related offenses. [50] The Attorney General’s Office has created a “task force” specifically aimed at fighting against corruption during the pandemic. [51] As of September 2020, this office has already investigated 95 corruption cases . [52] Similarly, in Bulgaria, the Prosecutor General has set up a organization for combatting crime during the state of emergency that was imposed in response to COVID‑19.[53] Corruption undermines all institutions, thereby increasing the risk of disasters.

Conclusion

The COVID-19 pandemic has highlighted the need for updating the accountability and transparency standards for DRR, with a particular emphasis on a health-systems approach to preparedness and response. DRR accountability and transparency mechanisms should be mandatory, not only voluntary. Moreover, DRR standards need to hold all stakeholders accountable, not only governmental entities. In Ecuador’s case, an effective accountability mechanism would identify the different levels of government—both national and local—and the various branches of government—particularly the National Assembly—that are responsible for the country’s inadequate response to the COVID-19 pandemic.

In response to crises and disasters, transparency in the management of public resources facilitates accountability and inhibits corruption. Thus, public procurement systems must include regulations that guarantee transparency and establish authorities in charge of investigating any anomalies.  Corruption underscores existing vulnerabilities and the risk of corruption during disasters. Consequently, individuals and public authorities must combat and denounce corruption as part of a response to COVID-19.

As the Ecuadorian Constitutional Court has indicated, it is necessary to assume a proactive role in the COVID-19 public health emergency. Based on technical criteria developed in coordination with health and risk institutions, public authorities must adopt special regulations to control the spread of COVID-19 and protect human rights that are threatened by the pandemic and other crises. In Ecuador’s case, this means adopting a disaster risk management law that not only anticipates this kind of event but also accounts for the phases after a disaster; namely recovery, rehabilitation and reconstruction.

*Law Professor, Universidad San Francisco de Quito, Ecuador (USFQ); Ph.D. Candidate, World Trade Institute, University of Bern. My gratitude to Felipe Idrovo, student at the USFQ, for his permanent support as research assistant.

[1] A slow-onset disaster emerges gradually over time and could be associated with drought, desertification, sea-level rise, epidemic disease. See U.N. General Assembly, Report of the Open-Ended Intergovernmental Expert Working Group on Indicators and Terminology Relating to Disaster Risk Reduction, United Nations (2016) at 13,  https://www.preventionweb.net/files/50683_oiewgreportenglish.pdf.

[2] Id. (“Disaster is “[a] serious disruption of the functioning of a community or a society at any scale due to hazardous events interacting with conditions of exposure, vulnerability, and capacity, leading to one or more of the following: human, material, economic and environmental losses and impacts”)

[3] Hugo Cahueñas, Gobernanza Del Riesgo de Desastres Frente al COVID-19 En Ecuador, in Derecho de Los Desastres: Covid-19 (Lima, Perú: Pontificia Universidad Católica del Perú, 2020).

[4] Sendai Framework for Disaster Risk Reduction 2015-2030, UNDRR, (March 2015), Priority 2 at para. 20,  https://www.preventionweb.net/files/43291_sendaiframeworkfordrren.pdf.

[5] Joachim Ahrens and Patrick M Rudolph, The Importance of Governance in Risk Reduction and Disaster Management, 14 Journal of Contingencies and Crisis Management 212 (2006).

[6] B Guy Peters and Jon Pierre, Governance, Government and the State, The State: Theories and Issues 210 (2006). See Ahrens and Rudolph, supra note 7, at 212 (discussing many informal governance structures and mechanisms).

[7] Emmanuel Raju and Karen da Costa, Governance in the Sendai: A Way Ahead?, Disaster Prevention and Management: An International Journal 280 (2018).

[8] Ahrens and Rudolph,  supra note 7.

[9] Melanie Gall, Susan L Cutter, and K Nguyen, Governance in Disaster Risk Management (IRDR AIRDR Publication No. 3),  Beijing: Integrated Research on Disaster Risk 9 (2014).

[10] Nkechi Cordelia Ojiagu et al., Accountability and Transparency in Nation Building: A Covid-19 Experience in Sub-Saharan Africa, 7 International Journal of Public Policy and Administration Research 31 (2020).

[11] Id.

[12] Kristian Cedervall Lauta, New Fault Lines: On Responsibility and Disasters, 5 European Journal of Risk Regulation (EJRR) 142 (2014).

[13] Raju and da Costa, supra note 9 at 284.

[14] Sendai Framework for Disaster Risk Reduction, supra note 6,  at para. 28 (f).

[15] Raju and da Costa, supra note 9, at 280.

[16] Id.

[17] UNISDR, Reading the Sendai Framework for Disaster Risk Reduction 2015 – 2030, (2015) at para. 81, https://www.preventionweb.net/files/46694_readingsendaiframeworkfordisasterri.pdf.

[18] Dug Cubie and Marlies Hesselman, Accountability for the Human Rights Implications of Natural Disasters: A Proposal for Systemic International Oversight, 33 Netherlands Quarterly of Human Rights 22 (March 1, 2015), https://doi.org/10.1177/016934411503300103.

[19] Raju and da Costa, supra note 9, at 281 (referencing UNISDR, 2015a, p.1).

[20] Raju and da Costa, supra note 9, at 282.

[21] Id.

[22] “The explosion claimed 39 human lives (ECtHR, 2004, Case of Oneryildiz v. Turkey). Another case refers to mudslides, known to occur in a small Russian village recurrently, and which in a particular year claimed eight lives (ECtHR, 2008. Budayeva v. Russia),” Raju and da Costa, supra note 9, at 282.

[23] Raju and da Costa, supra note 9, at 285.

[24]. “This court believes that not enough was done to avoid the catastrophic results” of the quake, Judge Ponciano Sallés said. “Any reasonable analysis would conclude that the risk was greater by not evacuating the population than by doing so,” he said, adding that “information was concealed.”

See Pascale Bonnefoy, Chilean Judge Upholds Manslaughter Charges Linked to 2010 Tsunami, The New York Times, (May 16, 2016), http://www.nytimes.com/2013/05/17/world/ americas/chilean-judge-upholds-manslaughter-charges-against -officials-over-tsunami-alert.html.

[25] See Lauta, supra note 14, at145; Raju and da Costa, supra note 9, at 283.

[26] Gall, Cutter, and Nguyen, supra note 11, at 12,16.

[27] Gall, Cutter, and Nguyen, supra note 11, at 16.

[28] Ahrens and Rudolph, supra note 7, at 212.

[29] Jeffrey V Lazarus et al., Keeping Governments Accountable: The COVID-19 Assessment Scorecard (COVID-SCORE), Nature Medicine 1005 (2020).

[30] Id. at 1005–1007.

[31] Corte Constitucional de Ecuador, Case No. 5-20-EE, at para.100.

[32] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.50.

[33] Corte Constitucional de Ecuador, Case No. 5-20-EE, at para.33.

[34] Thomas N. Hale, Transparency, Accountability, and Global Governance, 14 Global Governance 91 (2008).

[35] Ahrens and Rudolph, supra note 7, at 212.

[36]  Sendai Framework for Disaster Risk Reduction, supra note 6, at para. 27(a)(iii).

[37] Corruption and the Coronavirus, Transparency International, (Mar. 18, 2020), https://www.transparency.org/en/news/corruption-and-the-coronavirus.

[38] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.129.

[39] Raju and da Costa, supra note 9, at 285.

[40] “Build Back Better (BBB): The use of the recovery, rehabilitation and reconstruction phases after a disaster to increase the resilience of nations and communities through integrating disaster risk reduction measures into the restoration of physical infrastructure and societal systems, and into the revitalization of livelihoods, economies, and the environment.” United Nations General Assembly, Report of the Open-Ended Intergovernmental Expert Working Group on Indicators and Terminology Relating to Disaster Risk Reduction, (2016), Seventy-First Session, Item 19(c), A/71/644.

[41] Raju and da Costa, supra note 9, at 285.

[42] Kathleen Tierney, Disaster Governance: Social, Political, and Economic Dimensions, 37 Annual Review of Environment and Resources 347 (2012), https://doi.org/10.1146/annurev-environ-020911-095618.

[43] Raju and da Costa supra note 9, at 287.

[44] Id. at 285.

[45] Penny Green, Disaster by Design: Corruption, Construction and Catastrophe, 45 The British Journal of Criminology 1-2 (July 1, 2005) https://doi.org/10.1093/bjc/azi036.

[46] Elena Nikolova and Nikolay Marinov, Do Public Fund Windfalls Increase Corruption? Evidence from a Natural Disaster, 50 Comparative Political Studies 1481 (2017).

[47] The research analyzed administrative data for almost 360,000 contracts procured around the first confirmed COVID-19 case in March 2020.

[48] Jorge A Gallego, Mounu Prem, and Juan F Vargas, Corruption in the Times of Pandemia, (July 25, 2020), Available at SSRN: https://ssrn.com/abstract=3600572 or http://dx.doi.org/10.2139/ssrn.3600572 at 2.

[49] Id. at 1-2.

[50] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.52.

[51] La Fiscalía de Ecuador crea una fuerza para combatir la corrupción bajo el COVID-19, (Jun. 1, 2020), El Diario, https://www.eldiario.es/politica/fiscalia-ecuador-combatir-corrupcion-covid-19_1_6033423.html.

[52] Fernando Medina and Diego Puente, 95 expedientes por corrupción durante la pandemia, El Comercio, (Sep. 21, 2020), https://www.elcomercio.com/actualidad/expedientes-corrupcion-pandemia-coronavirus-emergencia.html.

[53] Venelin Terziev and Marin Georgiev, Increasing the Risk of Corruption Activities during a COVID-19 Pandemic, Available at SSRN: https://ssrn.com/abstract=3674427 or http://dx.doi.org/10.2139/ssrn.3674427 (August 12, 2020), at 58.

COVID-19: Towards a Digital Fragmentation of the Right to Education?

Written by Kristin Bergtora Sandvik* and Ingunn Ikdahl**

Introduction

COVID-19 lockdowns have had momentous impact on children’s lives worldwide and in particular on the right to education. Save the Children reports that more than 1.6 billion learners globally have faced school closures due to the pandemic, resulting in at least 10 million children not returning to school.[1] Among key international stakeholders, there appears to be a consensus that the problem is lack of access to remote education.

In the context of COVID-19, academics, policymakers and activists have given significant attention to digital learning and to the right to education.[2] However, the interlinkages between the two have been subject to little critical scrutiny. In this commentary, we interrogate how the problem of lockdowns as a barrier to education—and the proposed solutions to overcome this barrier—are defined, and the consequences for children’s right to education. Our argument is that a framing of remote learning, connectivity, and access to hardware as the solutions to lockdown unduly privileges certain understandings of how children’s right to education are violated.

We argue that the trend towards digital learning entails a platformization of education, engendering new problems, with respect to discrimination, data protection, the freedom of speech and of thought, and the right to culture. In combination, these digital platforms represent a fragmentation of the right to education. In contrast to the comprehensive and holistic understandings of the right to education developed by the UN treaty bodies, the fragmentation entails splitting the right into components, with “equal access” taking center stage. In the following piece, we consider the right to education in international law; explore the framing of the COVID-19 education challenge; and discuss how the focus on reachability and platformization—i.e. digital access—may adversely affect children’s rights. We hope that this analysis can also provide pointers for a post-COVID-19 research agenda on the right to education.

1.    The right to education in international law

The right to education is articulated in several international human rights documents, most prominently the Universal Declaration on Human Rights article 26,[3] the Convention on the Rights of the Child (CRC) articles 28 and 29,[4] and the Covenant on Economic, Social and Cultural Rights (CESCR) articles 13 and 14. [5] Setting out to clarifying the scope and content of the right, the UN CESCR Committee adopted a “General Comment” in 1999. The Committee relied on its standard 4A-criteria: Availability, accessibility, acceptability and adaptability.[6] Functioning institutions and programs must be available in the state, but also physically and economically accessible for all—without discrimination in law or in fact. Acceptability requires that its form and substance, including curricula and teaching methods, is relevant, of high quality and culturally appropriate. Adaptable education is flexible enough to meet changing needs of societies, communities and students. The Committee emphasized that these four were “interrelated and essential features” for all forms of education.[7]

Rights discourses were not the only factors shaping global policies around education. A long-term staple of development programming, education has been increasingly included in humanitarian response.[8] In 2000, UNESCO, UNICEF, UNHCR and the International Rescue Committee co-founded the Interagency Network for Education in Emergencies.[9] These efforts to fit education into the humanitarian agenda emphasized urgency and humanitarianism, rather than rights, and framed education as “a service that could be packaged” like other forms of packaged emergency aid. The focus on service delivery distanced education from politics, and rhetorically, access was prioritized over quality.[10] The “Education Cannot Wait” fund, launched at the World Humanitarian Summit in 2016, also emphasized the need for convergence of humanitarian and development approaches to education in emergencies and protracted crises. While human rights occupied no prominent place in the founding documents, it was central in the UN’s recently adopted Social Development Goal 4 on “inclusive and equitable quality education … for all.”[11]

A convergence between humanitarian discourses on education in emergencies and human rights-based approaches to education initially surfaced in 2008. The then UN Special Rapporteur on the Right to Education devoted his annual report to the topic of “Right to education in emergency situations,”[12] retaining the 4A-criteria and critiquing both donors and large sectors of the international communities for formally committing to the right to education while failing it in practice (paras 69-81). The same year, the CRC committee similarly emphasized the need for a broad rights-based approach to education in emergencies—integrating the four general principles of the CRC: “the right to non-discrimination (article 2); best interests of the child (article 3); the right to life, survival and development (article 6); and the right to be heard (article 12).”[13]

Digital learning only made intermittent appearances in these early soft law documents on the right to education. One example is the CESCR Committee’s brief suggestion that physical accessibility to education could be achieved not only by attendance at a neighborhood school, but also via “modern technology.”[14] A sustained discussion of digitization and children’s rights only emerged around 2014, as the CRC organized a Day of General Discussion on “Digital media and children’s rights.”[15] A draft general comment from CRC on “Children’s rights in relation to the digital environment” is still under development.[16] The current draft, from August 2020, underlines the importance of quality and privacy concerns in digital education.[17]  However, the Committee also suggests the potential of digital educational technologies for “children not physically present in school or living in remote areas or in disadvantage or vulnerable situations.”[18] This point echoes the Committee’s earlier statements on the role of digital media as a possible alternative to formal schooling for specific groups of children.[19] Thus, the Committee states, “At times of, for instance, public emergency or humanitarian situations, access to health services and information through digital technology may become the only option.”[20]

Hence, the relationship between the right to education and the global turn to technology-enabled distance learning is both in transition—and in need of further unpacking.

2. Framing the problem: Education during COVID-19 in international law and policy instruments

From the outset of the pandemic, a range of global actors has been involved in providing policy advice.[21] A rapidly growing body of fact-sheets,[22] reports,[23] and compilations of online resources [24] have contributed to framing the problems of education during COVID-19. The absence or immaturity of digital transformation of education has been a key element.[25] In this section, we map out key understandings in current policy discourse on violations of children’s rights. In Section 3, we identify a set of issues critical to children’s rights to education missing from this conversation.

In the specific logistical context of lockdown, limited and unequal access to internet and hardware (“reachability”), as well as inadequate digital transformation of education more generally (including a lack of policies on digital learning) are the key features of the problem. UN Agencies and INGOs have repeatedly pointed out that the access to connectivity that exists is highly unequal and divided along a range of dimensions: between high- and low-income countries,[26] between poor and wealthy inside countries,[27] between rural and urban areas, and affecting girls in particular.[28]

Specific solutions emerge from this problem-framing. Actors such as the World Bank and OECD present remote learning as central, and technology as “one of the most critical tools.”[29] This framing reflects broader trends concerning intersections of technology with the human rights field, as well as the emergency education field.[30]Technological solutionism is premised on a view of technological progress as inevitable, apolitical, and able to mitigate political, economic, social, and cultural forms of human suffering. Self-responsibilization through technology involves an increasing emphasis on individuals actively taking responsibility—though technology—for their own welfare, health, education etc. An integral part of the framing is the opportunity to learn and experiment with educational technology.[31] The framing of tech solutions also distracts from the deficiencies that led to an inadequate “pandemic responses in the first place, such as broken public systems, lack of trust, or social inequalities.”[32]

While a prominent component of the global discourse on education and development, rights-based approaches have been remarkably absent from the COVID-19 statements on education by international actors. Where rights-based arguments are made, such as in the recommendations by UNESCO and the International Commission on the Futures of Education[33] and the UN Secretary General’s policy brief on “Education during COVID-19 and beyond,”[34] it is for the definition of the right to education to be expanded to also include “connectivity entitlements.”[35]

Statements from human rights institutions appear to make a similar shift: away from a comprehensive and holistic understanding of the right to education, towards a narrower focus on access. In March, all the human rights treaty bodies emphasized the equality in access in a joint statement on COVID-19.[36] Echoing this approach, the COVID-19 statement from the CRC (para 3) emphasizes inequalities in access, foregrounding online learning as the main tool, and alternative solutions as safety nets for those without tech tools and internet connectivity.[37] While the CRC Committee’s draft General Comment on “Children’s rights in relation to the digital environment” mentioned above encompasses a nuanced approach to technology,[38] the COVID-19 statement thus perpetuates an ‘access first’ focus with respect to emergencies. The CESCR Committee’s COVID-19 statement takes a similar approach.[39]

A notable exception is the Special Rapporteur on the right to education, who in the annual report for 2020 gave attention to problematic dimensions of digitalization of teaching. Going beyond issues of connectivity and access, the report points out “the patent global lack of preparedness for a crisis of this magnitude,” as well as the risks involved if temporary measures, such as reliance on distance learning and private actors, become permanent.[40]

2.    Privatization, platformization, and children’s rights

As education has become an emergency matter, educational technologies have been positioned as a frontline emergency service. Edtech actors are “treating COVID-19 as a business opportunity to prove its benefits, extend its reach and grow market share,” with the dual aim of providing “a short-term response to the pandemic and a long-term ambition for whole education systems.”[41] The Special Rapporteur emphasizes that “the massive arrival of private actors through digital technology should be considered as a major danger for education systems and the right to education for all in the long term.”[42] To contribute to a future research agenda, here we identify three critical knock-on impacts on children’s rights.[43]

The first issue concerns how discrimination is exacerbated in the education context through two interlinked trends: platformization and privatization. The rise of corporate and state-controlled platform ecosystems[44] has caused concern about how the ‘platformization of schooling’ reinforces traditional exclusions, by leaving out students without access to digital gadgets or connectivity.[45] COVID-19 can also facilitate long-term privatization of education,[46] as an alternative business model is emerging: selling Edtech to students and parents in a new direct-to-consumer model of education.[47] According to critics—with whom we sympathize—thinking around digital inequalities must move beyond issues of access, and focus on supporting, regulating and designing “an inclusive digital future for us all.”[48]

The second issue relates to data protection and privacy. From a commercial—and governmental—point of view, digital education is not only about delivering educational content to children, but also about improving learning management systems and monitoring tools to track student learning.[49] Thus, in practice, digital education . The scale and depth of intrusive data collection and the involvement of additional actors raises questions about protection of children’s rights to privacy and data protection[50] and whether due diligence is undertaken to maintain the integrity of children’s digital bodies. Children’s digital bodies are constituted through the images, information, biometrics, and other data stored in digital space. [51]

The final issue arises with reference to freedoms of thought, of speech, and of access to the cultural life of the community. The values of public education, and the integrity of national or minority and indigenous education systems are affected if platformization and stated goals of ‘transforming cultures’ of education through technology[52]restructure the content of education. Technology is not neutral. An increase in personalized adaptive learning systems can undermine or reshape curricular values or flatten contextually driven approaches to education: technology platforms orient teachers to see student data as interchangeable with students, which we believe highlights the need for greater scrutiny of technology platforms’ role in the classroom.[53] We propose that while private sector actors play a crucial role in delivering education, the question of democratic process and democratic control is becoming increasingly acute—as noted by commentators, “The risk is that curricular values that have hitherto beendemocratically processed and negotiated may be replaced by de facto curricular values co-created by commercial interests and algorithmic powers.”[54]

Concluding thoughts

This commentary—which can hopefully also serve as a future research agenda—argues that the digital transformation of education through Edtech and remote learning, and the normative emphasis on access to hardware and software, fragments the right to education in ways that are precarious to the best interest of the child. As noted above, the notion of ‘building back better’ signal the experimental tenor of Edtech in emergencies. This echoes observations that emergency remote teaching has been positioned in ‘experimental’ terms with respect to what schools, the idea of education, and learning looks like.[55] At present, many policy decisions can be construed as experimental. Yet, in the context of emergency education, there are experimental attributes that go beyond the pedagogic politics of the pandemic, to serve the political and economic interests of Edtech itself. Beyond the questionable ethics underlying this type of experimentalism,[56] what is problematic here is the apparent abandonment of a holistic and multi-dimensional approach to the right to education in favor of an emphasis on digital access. At the beginning of 2021, the CRC Committee is finalizing its general comment on children and the digital environment. This document can be enormously important in putting the right to education in emergencies back on a rights track.

*Professor, Department of Criminology and Sociology of Law, Faculty of Law, University of Oslo

**Professor, Department of Public and International Law, Faculty of Law, University of Oslo

Notes

[1] Jess Edwards, Protect a Generation, Save the Children (2020), https://resourcecentre.savethechildren.net/node/18218/pdf/vr59-01_protect_a_generation_report_en_0.pdf.

[2] Netta Iivari, Sumita Sharma & Leena Ventä-Olkkonen. Digital Transformation of Everyday Life—How COVID-19 Pandemic Transformed the Basic Education of the Young Generation and Why Information Management Research Should Care?, 55 Int’l J. Info. Mgmt. (2020); Ellen Kollender & Maissam Nimer, Long-term Exclusionary Effects of Covid-19 for Refugee Children in the German and Turkish Education Systems: A Comparative Perspective, IPC-Mercator Policy Brief (2020), https://ipc.sabanciuniv.edu/Content/Images/CKeditorImages/20200717-00071708.pdf; Shanti Raman et al., Where Do We Go From Here? A Child Rights-Based Response to COVID-19, 4 BMJ Paediatrics Open 1 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7299026; Titus Corlatean, Risks, Discrimination and Opportunities for Education During the Times of COVID-19 Pandemic, Proceedings of the 17th Research Association for Interdisciplinary Studies Conference (June 1-2 2020), http://rais.education/wp-content/uploads/2020/06/004TC.pdf.

[3] G.A. Res. 217 (III) A, Universal Declaration of Human Right (Dec. 10, 1948).

[4] Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.

[5] International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 999 U.N.T.S. 171.

[6] With small variations, these criteria have been used by the Committee to clarify the normative content of various rights, including housing (General comment no. 4, 1991), food (General comment no. 12, 1999), education (General comment no. 13, 1999), health (General comment no. 14, 2000, and General comment no. 22, 2016), water (General comment no. 15, 2002), social security (General comment no. 19, 2008), participation in cultural life (General comment no. 21, 2009) and scientific progress and research (General comment no. 25, 2020). They now appear as a framework of general applicability for economic, social and cultural rights.

[7] Committee on Economic, Social and Cultural Rights, General Comment no. 13 (1999), The Right to Education (Article 13 of the Covenant), para. 6, U.N. Doc. E/CN.12/1999/10 [hereinafter Gen. Comm. 13].

[8] World Education Forum, Thematic Studies: Education in Situation of Emergency and Crisis: Challenges for the New Century, UNESCO(2001), https://inee.org/system/files/resources/UNESCO_Education_in_Situations_of_Emergency_and_Crisis_2000_en.pdf; see also Dana Burde, Amy Kapit, Rachel L. Wahl, Ozen Guven, & Margot Igland Skarpeteig, Education in Emergencies: A Review of Theory and Research, 87 Rev. Educ. Res. 619 (2017); Fumiyo Kagawa, Emergency Education: A Critical Review of the Field, 41 Comp. Educ. 487 (2005); World Education Program, The Dakar Framework for Action: Education for All: Meeting Our Collective Commitment, UNESCO (2000).

[9] INEE, Minimum Standards for Education in Emergencies, Chronic Crises and Early Reconstruction, UNESCO (2004), https://www.refworld.org/pdfid/41f627494.pdf.

[10] Burde et. al, supra note 10, at 623.

[11] Susan Nicolai et. al., Education Cannot Wait: Proposing a Fund For Education in Emergencies, Overseas Dev. Inst. (May 2016), https://www.odi.org/sites/odi.org.uk/files/resource-documents/10497.pdf.

[12] Vernor Muñoz (Special Rapporteur on the Right to Education), Right to Education in Emergency Situations, U.N. Doc. A/HRC/8/10 (20 May 2008), https://www.ohchr.org/en/issues/education/sreducation/pages/annualreports.aspx.

[13] The recommendations were drafted following a CRC Day of General Discussion on “The right of the child to education in emergency situations,” where presentations were made by the INEE, UNESCO, UNICEF and the Special Rapporteur on the Right to Education. Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, Comm. on the Rights of the Child, 3 October 2008,

https://www.ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations2008.doc.

[14] Gen. Conm. 13, supra note 13, para. 6.b.

[15] CRC, Day of General Discussion 2014: Digital Media and Children’s Rights, OHCHR (12 September 2014),

https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2014.aspx.

[16] The draft General Comment on Children’s Rights in Relation to the Digital Environment is available on the Committee’s webpage, alongside submissions and comments. See CRC, Submissions on Concept of GC digital Environment, OCHCR https://www.ohchr.org/EN/HRBodies/CRC/Pages/Submissions_Concept_GC_Digital_Environment.aspx; see also  CRC, Draft General Comment No. 25 (202x): Children’s Rights in Relation to the Digital Environment, U.N. Doc CRC/C/GC/, 14 August 2020, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/GC/25&Lang=en  [hereinafter Draft Gen. Comm. Digital Environment].

[17] Id. at paras. 111-112.

[18]  Id. at para 110.

[19] Such statements have included out-of-school girls (see CRC & CEDAW, Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination Against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, CEDAW/C/GC/31-CRC/C/GC/18, para. 64, 14 November 2014); children in street situations (see CRC, General Comment No. 21 (2017) on Children in Street Situations, CRC/C/GC/21, para. 54-55); and indigenous children (CRC, General Comment 11, Indigenous Children and Their Rights Under the Convention, CRC/C/GC/11, para. 61).

[20] Draft Gen. Comm. Digital Environment, supra note 18, para. 101.

[21] See, for example, the cooperation between the Harvard Global Education Innovation Initiative, HundrED, the OECD Directorate for Education and Skills, and the World Bank Group Education Global Practice. Lessons For Education During the COVID-19 Crisis, World Bank(22 June 2020), https://www.worldbank.org/en/topic/edutech/brief/lessons-for-education-during-covid-19-crisis [hereinafter Lessons for Education].

[22] COVID-19: At Least a Third of the World’s Schoolchildren Unable to Access Remote Learning During School Closures, New Report Says, World Bank (26 August 2020),

https://www.unicef.org/press-releases/covid-19-least-third-worlds-schoolchildren-unable-access-remote-learning-during; COVID-19: Are Children Able to Continue Learning During School Closures?, World Bank (August 2020), https://data.unicef.org/resources/remote-learning-reachability-factsheet.

[23] Fernando M. Reimers & Andreas Schleicher, A Framework to Guide an Education Response to the Covid-19 Pandemic of 2020, OECD (2020), https://read.oecd-ilibrary.org/view/?ref=126_126988-t63lxosohs&title=A-framework-to-guide-an-education-response-to-the-Covid-19-Pandemic-of-2020; Emma Wagner & Hollie Warren,  Save Our Education: Protect Every Child’s Right to Learn in the COVID-19 Response and Recovery, Save the Children (July 13, 2020), https://www.savethechildren.net/save-our-education-report.

[24] See Fernando Reimers et. al, Supporting the Continuation of Teaching and Learning During the COVID-19 Pandemic, OECD (2020),

https://www.oecd.org/education/Supporting-the-continuation-of-teaching-and-learning-during-the-COVID-19-pandemic.pdf; Remote Learning, Distance Education and Online Learning During the COVID19 Pandemic : A Resource List by the World Bank’s Edtech Team, World Bank (26 March 2020), https://documents.worldbank.org/en/publication/documents-reports/documentdetail/964121585254860581/remote-learning-distance-education-and-online-learning-during-the-covid19-pandemic-a-resource-list-by-the-world-banks-edtech-team.

[25] As early as March, the World Bank’s “multi-sectoral task force,” anticipating a global wave of school closures, identified the unequal access to technological devices and high bandwidth internet as a key issue to be addressed in the preparative phase. Kalipe Azzi-Huck & Tigran Shmis, Managing the Impact of COVID-19 on Education Systems Around the World: How Countries Are Preparing, Coping, and Planning for Recovery, World Bank Blogs (March 18, 2020),

https://blogs.worldbank.org/education/managing-impact-covid-19-education-systems-around-world-how-countries-are-preparing.

[26] Wagner & Warren, supra note 25.

[27] Edwards, supra note 1.

[28] Building Back Equal: Addressing the Gender Dimensions of COVID-19 School Closures Through Technology, UNESCO (September 10, 2020),

https://en.unesco.org/news/building-back-equal-addressing-gender-dimensions-covid-19-school-closures-through-technology; see also Bridging the Gender Digital Divide, Plan Int’l, https://plan-international.org/education/bridging-the-digital-divide; Phumzile Mlambo-Ngcuka & Anne-Birgitte Albrectsen, We Cannot Allow COVID-19 to Reinforce the Digital Gender Divide, Devex (4 May 2020), https://www.devex.com/news/opinion-we-cannot-allow-covid-19-to-reinforce-the-digital-gender-divide-97118.

[29] Lessons for Education, supra note 31.

[30] Research Handbook on Human Rights and Digital Technology: Global Politics, Law and International Relations (Ben Wagner, Matthias C. Kettemann & Kilian Vieth, eds., 2019); Kristin Bergtora Sandvik, Wearables for Something Good: Aid, Dataveillance and the Production of Children’s Digital Bodies, 23 Info., Comm. & Soc’y 2014 (2020); Karen Yeung, Algorithmic regulation: A Critical Interrogation. 12 Reg. & Governance 505 (2018).

[31] See, e.g., Lessons for Education, supra note 31 (“The COVID-19 crisis is an opportunity for policy makers to learn from each other and co-operate to mitigate the effects of the pandemic and maybe even ‘build back better.’”); David Edwards & Guy Ryder, see also Reimagine Education to Achieve Quality Learning for All, UN and Partners Urge, UN News (5 October 2020),

https://news.un.org/en/story/2020/10/1074652; Teachers: Leading in Crisis, Reimagining the Future, UNICEF (5 October 2020), https://www.unicef.org/press-releases/teachers-leading-crisis-reimagining-future.

[32] Antoine de Bengy Puyvallée, Book Review: Data Justice and COVID-19. Global Perspectives, Security & Dialogue (Nov. 4, 2020),

Book review: Data Justice and COVID-19. Global Perspectives

[33] International Commission on the Futures of Education, Education in a Post COVID-19 World: Nine Ideas for Action, UNESCO (2020), https://unesdoc.unesco.org/ark:/48223/pf0000373717/PDF/373717eng.pdf.multi.

[34] Policy Brief: Education During COVID-19 and Beyond, United Nations (August 2020), https://www.un.org/sites/un2.un.org/files/sg_policy_brief_covid-19_and_education_august_2020.pdf [hereinafter Policy Brief].

[35] Bono & Mark Zuckerberg, To Unite the Earth, Connect It, N.Y. Times (Sept. 26, 2015), https://www.nytimes.com/2015/09/27/opinion/sunday/to-unite-the-earth-connect-it.html (citing SDG target 9.c).

[36] UN Human Rights Treaty Bodies Call for Human Rights Approach in Fighting COVID-19 (24 March 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25742&LangID=E.

[37] The Committee on the Rights of the Child Warns of the Grave Physical, Emotional and Psychological Effect of the COVID-19 Pandemic on Children and Calls on States to Protect the Rights of Children (8 April 2020), https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CRC/STA/9095&Lang=en.

[38] See Draft Gen. Comm. Digital Environment, supra note 17, discussing among others impact and regulation of the business sector (paras. 36-39) and the right to privacy (paras. 69-79).

[39] CESCR Committee, Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights, U.N. Doc. E/C.12/2020/1 (17 April 2020), https://undocs.org/E/C.12/2020/1.

[40] U.N. Special Rapporteur on the Right to Education, Right to Education: Impact of the Coronavirus Disease Crisis on the Right to Education—Concerns, Challenges and Opportunities, U.N. Doc. A/HRC/44/39 (15 June – 3 July 2020), https://undocs.org/A/HRC/44/39 [hereinafter Rapporteur Right to Education].

[41] Ben Williamson, Rebecca Eynon & John Potter, Pandemic Politics, Pedagogies and Practices: Digital Technologies and Distance Education During the Coronavirus Emergency, 45 Learning, Media & Tech. 107 (2020), https://www.tandfonline.com/doi/full/10.1080/17439884.2020.1761641.

[42]  Rapporteur Right to Education, supra note 42.

[43] In particular CRC articles 13, 15, 16 and 17. For an interesting discussion see Carly Nyst, Amaya Gorostiaga & Patrick Geary, Children’s Online Privacy and Freedom of Expression, UNICEF (May 2018), https://www.unicef.org/csr/files/UNICEF_Childrens_Online_Privacy_and_Freedom_of_Expression(1).pdf.

[44] José Van Dijck, Seeing the forest for the trees: Visualizing platformization and its governance, New Media & Soc’y (2020), https://journals.sagepub.com/doi/full/10.1177/1461444820940293.

[45] Concept Note for a Digital New Deal, IT for Change (2020) https://itforchange.net/digital-new-deal.

[46] Ben Williamson & Anna Hogan, The Edtech Pandemic Shock (7 October 2020), https://www.worldsofeducation.org/en/woe_homepage/woe_detail/16856/the-edtech-pandemic-shock-by-ben-williamson-anna-hogan.

[47] Williamson, Eynon and Potter, supra note 41.

[48] Id.

[49] The push for data collection can be illustrated by the UN Secretary General policy brief, which recommends comprehensive data collection at multiple levels. Policy Brief, supra note 34, at 24.

[50] See Draft Gen. Comm. Digital Environment, supra note 18, para. 18 (children’s right to be heard), 70 (data collection for educational purposes), 112 (dangers of commercial exploitation in the context of digital educational technologies).

[51] Kristin Bergtora Sandvik, Protecting Children’s Digital Bodies Through Rights, Open Rights Global (30 October 2019), https://www.openglobalrights.org/protecting-childrens-digital-bodies-through-rights.

[52] Gerhard Fischer, Johan Lundin & J. Ola J. Lindberg, Rethinking and Reinventing Learning, Education and Collaboration in the Digital Age—From Creating Technologies to Transforming Cultures, 37 Int’l J. Info. & Learning Tech. 241 (2020), https://www.emerald.com/insight/content/doi/10.1108/IJILT-04-2020-0051/full/html.

[53] Priya C. Kumar et al., The Platformization of the Classroom: Teachers as Surveillant Consumers, 17 Surveillance & Soc’y 145 (2019), https://ojs.library.queensu.ca/index.php/surveillance-and-society/article/view/12926/8488.

[54] Thomas Hillman, Annika Bergviken Rensfeldt & Jonas Ivarsson. Brave New Platforms: A Possible Platform Future for Highly Decentralised Schooling, 45 Learning, Media & Tech. 7 (2020). The special rapporteur has been particularly vocal in this regard: “Distance learning tools must make use of high-quality content that is adapted to local contexts and, in particular, local languages, and must be introduced together with effective and ongoing training for teachers and learners. They should permit teachers and learners to provide their input, allow for pedagogical differentiation depending on the level and the capacities of learners and should also allow academic freedom and creativity.” U.N. Special Rapporteur on the Right to Education, supra note 40, para 48. And: “The likely expansion of public-private partnerships in the post-crisis period risks increasing educational inequalities, with limited citizen engagement or accountability.” Para 77.

[55] Williamson, Enyon and Potter, supra note 23.

[56] Kristin Bergtora Sandvik, Humanitarian Wearables: Digital Bodies, Experimentation and Ethicsin Ethics of Medical Innovation, Experimentation, and Enhancement in Military and Humanitarian Contexts 87-104 (2020); Kristin Bergtora Sandvik, Katja Lindskov Jacobsen & Sean Martin McDonald, Do No Harm: A Taxonomy of the Challenges of Humanitarian Experimentation, 904 Int’l Rev. Red Cross 319 (2017).

The Trump administration, asylum law, and private-actor persecution

Written by Rachael Stryer*

Over the past three and a half years, the Trump administration has sought to radically restrict access to asylum in the United States through administrative decision-making and rulemaking. Two recent circuit court decisions grapple with the administration’s attempts to limit the eligibility of asylum applicants fleeing persecution from non-state actors — while the Second Circuit upheld the U.S. Attorney General’s newly-stringent requirements, the D.C. Circuit found them arbitrary and capricious. The new system would, in practice, bar a woman seeking protection from domestic violence or murder witnesses fleeing gang retribution from gaining asylum, even where their states of origin struggled to stem or were blind to this violence. These changes affect the core tenants of asylum law and contradict tentative global trends towards the recognition of private-actor persecution.

The Global Asylum System

The contemporary global asylum regime was established by the 1951 Refugee Convention[1] and the subsequent 1967 Refugee Protocol.[2] The Convention sets out the rights of refugees and defines the responsibility of signatory states towards refugees. Article 1 defines refugees as individuals who have a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion” and who are “unable or, owing to such fear, [] unwilling to avail [them]self of the protection of” their country of nationality. The Convention’s focus on government responsibility reflects a Euro- and state-centered worldview, responding to episodes of state renunciation of segments of its population, notable the Armenian Genocide and the Holocaust. With the emergence of the Cold War, the refugee system effectively adjusted to an individualized model of state persecution. However, the Convention excluded non-Europeans from refugee status until 1967, ignoring parallel mass refugee situations created by, for example, the Chinese Communist Revolution, the Korean War, the Arab-Israeli War, and the partition of India and Pakistan.[3] Further, the asylum regime failed to address the status of victims felling private persecution. Rather, the Convention required applicants to prove that, where the state was not the persecutor, the state was unable or unwilling to provide protection.

Signatories have interpreted this state-centered requirement differently, creating two diverging systems. In the majority of Convention and Protocol signatories, including the United Kingdom, most of Western Europe, Canada, New Zealand, Australia, and the United States,[4] judicial inquiry has focused on whether the home state could and would protect the asylum seeker. Applicants were eligible for asylum relief where a state was averse to providing real protection to the individual or where the state was incapable of doing so. In contrast, civil law states, in particular Germany, Switzerland, Italy, and France, retained a state-centered concept of persecution which focused on state responsibility for the persecution in question. Under the protection regime, asylum applicants needed to prove a failure of state protection separately from the persecution at hand; under the accountability regime applicants needed to show that the state failure was directly responsible for or that the state supported, encouraged, or tolerated the persecution by third parties.[5]

Increasing Global Recognition of Non-State Persecution

This protection-accountability dichotomy has shifted over time in reaction to changes in international dynamics and law.[6] The 1990s witnessed increasing internal conflict and state decline. As a result, “popular repression by an all-powerful state is no longer the primary context or metaphor for human rights abuses.”[7] Two new paradigms, while by no means new, have become increasingly prominent. First, in areas where states lack control, non-state actors such as FARC in Colombia and Mara Salvatrucha in El Salvador have adopted state-like functions.[8] Second, where states retain control, their unwillingness to use their authority to protect minorities and women, such as the cases of Rohingya refugees in Bangladesh or unpatrolled Palestinian refugee camps in Lebanon, have emerged as central features of asylum debates.

States’ implementation of asylum obligations have developed in response to paradigms of state incapacity and indifference. Protection-focused countries increasingly recognize gender-based claims when states are unwilling to provide protection against gender-based violence. A landmark 1999 British decision, Ex Parte Shah, recognized the petitions of two Pakistani women seeking asylum from their abusive husbands based on their particular social group “Pakistani women.” Although gang-based claims remain controversial, states have increasingly recognized these types of claims through a focus on the ineptness of states to counter the groups. For example, a 2009 Australian case granted asylum to a man claiming persecution as a bus driver targeted by MS-13 in El Salvador and a 2008 Canadian casegranted asylum to a Mexican journalist who had investigated gang violence.

Likewise, accountability-centered countries have shifted towards protection-based models. In response to a 2004 European Union directive, Germany, France, and Italy broadened their definitions of persecution to include non-state actors.[9] Since then, Germany, which has traditionally had the most stringent accountability system, has recognized criminals, mafias, religious extremists, and terrorists as non-state agents of persecution and recognized gender-based attacks such as forced marriage as forms of persecution.[10] These decisions increasingly consider the ability and willingness of the state to provide protections, recognizing state ineffectiveness and indifference beyond failed or incompetent states. For example, a 2006 Swiss decision granted asylum to a woman fleeing gender-based violence, finding Ethiopia unable to provide protection despite recent improvements in the Ethiopian legal system. Thus, while these systems continue to struggle to adapt to contemporary realities and to address historical blind spots, they have shown increasing flexibility with regards to the types of persecution they recognize.[11]

Regression in American Asylum Law

American jurisprudence historically has developed in parallel with other protection-based regimes. Immigration courts require applicants seeking asylum in the United States to show past persecution or a well-founded fear of future persecution on the basis of their membership in a protected group “inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”[12]

This standard has allowed applicants fleeing gender- and gang-based violence to gain asylum in the United States, albeit inconsistently. In Matter of Kasinga, the United States recognized gender-based persecution in the case of a woman fleeing forced marriage and female genital mutilation in Togo, finding that Togo was unwilling to protect her. And, a number of circuit court decisions have granted asylum to those facing threats from gangs. For example, in 2011, the Third Circuit in Garcia v. Attorney General granted protection to a woman who had assisted law enforcement against violent gangs in Guatemala, finding that the government was unable to protect the applicant even if it was willing and even had attempted to do so. In contrast, where these gang-based claims have failed, they have typically done so because the court found their group membership incognizable, rather than because of the nature of the persecuting actor.

In 2018, however, the Attorney General held in Matter of A-B- that the “unable and unwilling” standard requires asylum seekers to demonstrate the government “condoned the private actions or ‘at least demonstrated a complete helplessness to protect the victims.’[13] In particular, the Attorney General rejected the use of country condition reports, requiring applicants to prove these standards based on individual circumstances rather than broader social dynamics. This new standard would be nearly impossible for applicants to meet.[14] While Matter of A-B- has received significant attention for rolling back broad recognition of the cognizability of gender-based particular social groups, its repercussions extend beyond asylees fleeing domestic violence to the viability of broad-reaching private-actor claims.

In the past year, two circuit courts have grappled with these repercussions, coming to diverging conclusions. In the Second Circuit, Scarlett v. Barr broke with circuit precedent to uphold the heightened “complete helplessness” standard, denying asylum to a Jamaican constable facing threats from a gang.[15] Upon asking for protection, the applicant’s superiors transferred him to a station four miles away from his original station, where he continued to receive threats. The police did nothing further to protect the applicant.[16] The court found that the superiors’ initial response was enough to show that the state was not tolerant of the applicant’s persecution.

The Second Circuit held that the applicant did not meet the “condoned” or “complete helplessness” standard. “Condoned” suggests active approval of persecution far beyond an unwillingness, while “completely helpless” connotes a state that is totally impotent, significantly more extreme than “unable.” Despite the clearly heightened standard, Scarlett deferred to the government’s position that the complete helplessness standard was not a change from the traditional “unable or unwilling test.”[17]

In contrast, the D.C. Circuit ruled for twelve asylum applicants fleeing gender- and gang-based violence in Grace v. Barr, finding that the AG’s “condoned-or-completely-helpless” standard broke with established Board practice.[18]  While it rejected the authority of the United Nations High Commissioner for Refugees Handbook,[19] the Circuit found this change arbitrary and capricious. The court establish that “[a] government that ‘condones’ or is ‘completely helpless’ in the face of persecution is obviously more culpable, or more incompetent, than one that is simply ‘unwilling or unable’ to protect its citizens,” drawing on a recent First Circuit decision which found the Mexican state unable to provide protection to an applicant whose son was murdered.[20] Although police had responded to the murder of the applicant’s son by visiting the scene of the murder, taking statements, and performing an autopsy, the general corruption, low trust, and high homicide rates in the region were sufficient evidence to demonstrate that the state was incapable of adequate guarantees.[21] Grace argued that, under the condoned or completely helpless standard, the claim would almost certainly fail (because the government had responded to the murder), thereby creating two differing standards.[22]

As Grace v. Barr demonstrates, replacing a “unwilling or unable to protect” model with “condoned or complete helplessness” fundamentally shifts the American asylum system. While other signatories move to recognize non-state persecution (albeit unevenly and with gaping failures of their own), the United States recedes from a protection-based model towards the increasingly antiquated accountability-based model. This decision signals a regression in American asylum protection and moves the United States out of step with both global realities and international asylum developments.

*J.D. candidate, Yale Law School; Features Editor, Yale Journal of International Law

[1] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137.

[2] UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267.

[3] Lucy Mayblin, Asylum After Empire: Colonial Legacies in the Politics of Asylum Seekers 22-23 (2017).

[4] The United States is only party to the Protocol, which it ratified in 1968. Congress incorporated the definition into immigration law through the Refugee Act of 1980.

[5] Catherine Phuong, Persecution by Third Parties and European Harmonization of Asylum Policies, 16 Geo. Immigr. L.J. 81, 83 (2001).

[6] See Mayblin, supra note 3, for a critique of the narrative of “new” refugees as constructed through the systematic historic exclusion of non-European refugees.

[7] Jennifer Moore, From Nation State to Failed State: International Protection from Human Rights Abuses by Non-State Agents, 31 Columb. H.R. L. Rev. 81, 85 (1999).

[8] Id.

[9] Id. at 104.

[10] Id. at 105.

[11] Elizabeth Keyes, Unconventional Refugees, 67 Am. U. L. Rev. 89 (2017); Shoenholtz, supra note 6.

[12] Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

[13] 27 I&N Dec. 316, 337 (AG 2018).

[14] Id. at 340.

[15] 957 F.3d 316 (2d Cir. 2019).

[16] Id. at 323.

[17] Id. at 333.

[18] 965 F.3d 883, 898 (D.C. Cir. 2020).

[19] Id. at. 897.

[20] Id. at 888-89.

[21] Id. at *10.

[22] See Steve Y. Koh, Nonacquiescence in Immigration Decisions of the U.S. Courts of Appeals, 9 Yale L. & Pol’y Rev. 430 (1991) for an explanation of why Matter of A-B- still applies despite an appellate court’s rejection of the standard.

Virtual Symposium: China and the International Legal Order

China and International Legal Order
Virtual Symposium
HILJ-YJIL-Oxford | October 15, 2020 

To register, please click the link and provide your name, email address, affiliation, and job title (including student)​: ​https://harvard.zoom.us/webinar/register/WN_RCxnlKkiQMujwaF1UdyTPg​.

 

As deglobalization deepens in centers of capitalism in the North and the COVID-19 pandemic exacerbates tensions between the U.S. and China, China continues to promote its version of economic globalization, particularly through emergent markets in much of the South. Chinese globalization consists of trade and global value chains, investment and development finance, and hard and soft infrastructure—including digital infrastructures—promoted by Chinese and multilateral development banks, SOEs and privately-owned companies, and internationalizing professional services like law firms. China is providing much-needed capital, health aid, and expertise to many regions of the world. At the same time, scholars suggest that “state capital,” which differs from private capital, catalyzes this form of globalization, meaning that outbound capital flows are aligned with the interests of the party-state. Along these lines, China is increasing active not only in existing multilateral legal organizations and financial institutions, such as the WTO, WHO, UN, ISO, but is also establishing its own parallel platforms including the Shanghai Cooperation Organization, Asian Infrastructure Investment Bank, eWTP, World Internet Conference, and the Belt and Road Initiative. Chinese development banks have, in recent years, provided more overseas lending than the World Bank and the IMF combined. China’s technology companies are the largest in the world and providing e-commerce and telecommunications facilities, including 5G, through the “Digital Silk Road.” These developments have significant consequences for global health governance, supply chains, labor and environmental rights, privacy, security, and freedom of speech. State response to the coronavirus pandemic has done little to create consensus around these issues and the interstate system appears to be shifting around two emergent spheres of influence—that of China and the U.S. It is at this current turning point that we convene this symposium to examine how a globalizing China is shaping or otherwise influencing the international legal order, one that has been allegedly designed by and for private capital from the global North, and conversely, how existing international legal institutions, Western states, and “Belt and Road” partner states are responding to an ascendant China.

This symposium, a unique collaboration between ​Harvard International Law Journal​, Yale Journal of International Law,​ and the “China, Law and Development” project and the Commercial Law Centre, both at the University of Oxford, features scholars from not only the U.S. and China but also Hong Kong, Singapore, the U.K., and Brazil. The symposium highlights the scholarship of not just established scholars, but also junior scholars, and law students, as well, including one panel devoted to law students. The symposium is aimed at opening up intellectual exchange about China’s relationship to the changing international legal order, including, centrally, the U.S.-China relationship, and also additional states that have strong economic, legal, and security ties with China.

 

5:00 PM – 5:30 PM

Opening Remarks

Matthew S. Erie, Associate Professor of Modern Chinese Studies and Principal Investigator of the CLD Initiative, Oxford University

William P. Alford, Jerome A. and Joan L. Cohen Professor of Law, Director of East Asian Legal Studies Program, Harvard Law School

Wang Chenguang, Professor of Law and Former Dean, Tsinghua University Law School 

Welcome from the Hosts

Roberta T. Mayerle and Steven Wang, Editors-in-Chief of the Harvard International Law Journal

Ann Manov and Omar Shehabi, Co-Editor-in-Chief and Executive Editor for Features of the Yale Journal of International Law

5:30 PM – 6:50 PM
Panel 1: China and the World

PRESENTERS

Tom Ginsburg, Leo Spitz Professor of International Law and Professor of Political Science, University of Chicago Law School
“The BRI, Non-interference, and Democracy”

Wang Guiguo, President of Zhejiang University Academy of International Strategy and Law, Zhejiang University Guanghua Law School
“The Belt and Road in the Changing International Legal Order”

Steven Wang, J.D. Candidate and Co-Editor-in-Chief of the Harvard International Law Journal, Harvard Law School
“Indigenous Constitutionalism and Global Legitimacy: Uncovering Roots of Constitutionalism in the Chinese Past”

DISCUSSANTS

Taisu Zhang, Professor of Law, Yale Law School

Kristin van Zwieten, Clifford Chance Associate Professor of Law and Finance, and Director of the Commercial Law Centre of Harris Manchester College, Oxford University

MODERATOR

Lara Markey, Features Editor, Yale Journal of International Law

 

Panel 2: Facilitators of China Law

PRESENTERS

Matthew S. Erie and Sida Liu, Associate Professor of Sociology and Law, University of Toronto
“The Architects of China’s International Legal Order”

Weixia Gu, Associate Professor of Law, University of Hong Kong
“China’s Law And Development: A Case Study Of The China International Commercial Court”

Ji Li, John & Marilyn Long Professor of US-China Business and Law, University of California, Irvine School of Law
“Meeting Law’s Demand Chinese Multinationals as Consumers of US Legal Services”

DISCUSSANTS

William P. Alford

Linda Mulcahy, Professor of Socio-Legal Studies and Director of the Centre for Socio-Legal Studies, Oxford University

MODERATOR

Eric Holmberg, Line Editor, Harvard International Law Journal

 

Panel 3: Trade and Investment

PRESENTERS

Henry Gao, Associate Professor of Law, Singapore Management University
“Across the Great Wall: E-Commerce Joint Statement Initiative Negotiation and China”

Fabio Costa Morosini, Associate Professor, Federal University of Rio Grande do Sul School of Law, and Michelle Ratton Sanchez Badin, Associate Professor, Law School of Getulio Vargas Foundation
“Constituting China’s International Legal Ordering: Ideas And Practices Around Chinese Investments In The Brazilian Energy Sector”

Gregory Shaffer, Chancellor’s Professor of Law and Director of Center on Globalization, Law, and Society, University of California, Irvine School of Law
“Governing the Interface of China-US Trade Relations”

Xia King, Assistant Professor, The University of Hong Kong, Department of Law
“Unpacking China, Inc. In Africa: State-market Relations In China’s Outward Investment”

DISCUSSANTS

Mark Wu, Harvard Law School, Henry L. Stimson Professor of Law, Vice Dean for the Graduate Program and International Legal Studies, Harvard Law School

Kathleen Clausen, Associate Professor of Law, University of Miami School of Law

MODERATOR

Prakhar Bhardwaj, Article Editor, Harvard Law School

 

6:50 PM – 7:20 PM
Young Scholars Workshop 

7:20 PM – 7:35 PM
Closing Remarks

Mark Wu

Robert Williams, Executive Director of Paul Tsai China Center, Yale Law School

Matthew S. Erie

Call for Submissions: China and the International Legal Order

Call for Submissions for “China and the International Legal Order” Virtual Symposium

Due: Friday, October 2nd by 11:59 AM

The Harvard International Law Journal and the Yale Journal of International Law are pleased to invite student submissions for the ‘China and International Legal Order’ Virtual Symposium, to be held on October 15th, 2020. The Journals welcome unpublished papers, paper drafts, and case notes that engage with current topics on China and international law broadly understood, including China’s participation in and influence on public and private international law, international legal organizations, and the legal and regulatory systems of China’s trading partners, particularly emerging economies. The authors of selected papers will have the opportunity to present their pieces at the Symposium and receive feedback from acclaimed scholars in the field. It would be an invaluable experience for young scholars in the field of international law to showcase their work and build professional connections.

The Journals may select among the pieces presented for publishing in a special volume. Pieces should be between 8,000 and 10,000 words, including footnote citations. Only current law students or graduates one year out (JDs, LLMs, and JSDs/SJDs all welcome) are eligible for the opportunity.

To submit, send a Word version of your paper draft and a resume to submission.cilo@gmail.com with the subject line “Student Writing Submission” by October 2nd.

Symposium Conference: International Trade in the Trump Era

On February 22, 2019, YJIL successfully hosted a one-day conference at Yale Law School entitled “International Trade in the Trump Era.” The conference corresponds to the series of Features Essays published as a part of our most recent Features Symposium on the same topic.

In addition to the Features Symposium contributors, we welcomed the following participants, who took part in a lively discussion before an engaged audience of Yale students:

  • The Honorable Timothy C. Stanceu, Chief Judge, U.S. Court of International Trade
  • The Honorable Gary S. Katzmann, Judge, U.S. Court of International Trade
  • Brian Bombassaro, International Trade Counsel, U.S. Senate Committee on Finance
  • Kelly Ann Shaw, Special Assistance to the President and Senior Director for International Trade, Investment and Development

Professors Gregory Shaffer and Chantal Thomas participated by video conference. We wish to thank all of the conference attendees for their participation. We are also grateful to the Yale Law School staff and the Oscar M. Ruebhausen Fund for generously sponsoring the event.

Please find the conference agenda attached.

Features Symposium: International Trade in the Trump Era

The international trade order is in crisis. Since the election of President Donald J. Trump, the United States has initiated—and escalated—a trade war with China, forced the renegotiation of the North American Free Trade Agreement (NAFTA), and threatened to upend the World Trade Organization (WTO) by blocking appointments (and re-appointments) to its Appellate Body. Protectionism is on the rise: reversing a longstanding political consensus, tariffs have once again emerged as a central issue in U.S. international trade policy.

What does this all mean? Where does it lead? Is the established order of international trade—underpinned by the WTO and multilateral trade agreements—on the verge of collapse? Or is it, as John Gerard Ruggie said of the “new protectionism” that arose in the 1970s, simply an indication that the existing order is adapting to new circumstances? The authors in this Features Symposium grapple with these difficult, and consequential, questions.

The Features Symposium is a new venture by YJIL Online. Its publication will be accompanied by an in-person event, to be held at Yale Law School, on February 22, 2019.

* Note: Some of these essays have been previously published on this page in unofficial, non-consecutively paginated form. Please use the official versions provided below.

Introduction
Kathleen Claussen & David Singh Grewal

The Trump Administration and the Future of the WTO
Rachel Brewster

Trade, Redistribution, and Imperial Presidency
Timothy Meyer

A World Trade Organization for Workers?
Joel P. Trachtman

A Tragedy in the Making? The Decline of Law and the Return of Power in International Trade Relations
Gregory Shaffer

Protectionism’s Many Faces
Andrew Lang

Old Wine in New Bottles? The Trade Rule of Law
Kathleen Claussen

A Research Agenda for Trade Policy Under the Trump Administration
David Singh Grewal

Trade and Development in an Era of Multipolarity and Reterritorialization
Chantal Thomas

The Vital Role of the WTO Appellate Body in Promoting the Rule of Law and International Cooperation: A Case Study
Padideh Ala’i

Epilogue
Trump Change: Unilateralism and the “Disruption Myth” in International Trade
Harold Hongju Koh


* Cover photo by Gage Skidmore. Source: Wikimedia Commons.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Forum: The ICC and Afghanistan – Time to End Impunity?

Written by Mehdi J. Hakimi*

Following the Taliban’s announcement of their annual spring offensive, violence has ratcheted up across Afghanistan. According to the UN Assistance Mission in Afghanistan (UNAMA), the Afghan conflict resulted in more than 10,000 civilian casualties in 2017 alone. The mounting atrocities in Afghanistan have finally prompted the International Criminal Court (“ICC” or the “Court”) to consider launching a formal investigation.

On November 20, 2017, Fatou Bensouda, the chief prosecutor of the ICC, requested judicial authorization to commence a formal investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 1, 2003. The 181-page request (not including annexes) was submitted by Bensouda’s Office of the Prosecutor (OTP) to a three-judge panel in the ICC’s Pre-Trial Chamber (PTC). In its request, the OTP sought authorization to investigate alleged crimes committed by the Taliban and their affiliates, the Afghan National Security Forces (ANSF), and the U.S. military and the CIA. This essay surveys the OTP’s charges against these actors and provides preliminary reflections on the task before the Court.

The Taliban and Haqqani Network

The OTP attributes the bulk of the atrocities to the Taliban and their affiliated Haqqani Network, alleging that these two groups have committed the following crimes against humanity: murder; imprisonment or other severe deprivation of physical liberty; and persecution against any identifiable group or collectivity on political and gender grounds.[1] In addition, both groups are alleged to have committed the following war crimes: murder; intentionally directing attacks against the civilian population, humanitarian personnel, and protected objects; enlisting children under fifteen or using them in hostilities; and killing or wounding treacherously a combatant adversary.[2]

In its request, the OTP did not consider the conduct of other terrorist groups operating in Afghanistan, such as Daesh/Islamic State Khorasan Province (Daesh/ISKP). This is mainly due to the OTP’s limited powers during preliminary examination, the lower evidentiary threshold at the pre-investigative stage, and the ambiguous relationship between the Taliban and other terrorist groups.[3] For example, Daesh/ISKP claimed a recent attack in Kabul, but the U.S. military believed that the Taliban were the true authors of the attack. Similarly, the Taliban and Daesh seem to have acted in concert in the massacre of ethnic Hazara civilians in the Mirza Olang village of Sari Pul province in August 2017. As the OTP acknowledged, once the investigation is authorized, it will be necessary (and more feasible) to closely examine the violence perpetrated by these other groups and their links with the Taliban.

Perhaps the biggest omission in the OTP’s request is the crime against humanity of persecution against any identifiable group or collectivity on ethnic and religious grounds. In particular, the widespread and systematic attacks against the ethnic Hazara population, of largely Shia denomination, are conspicuously missing in the submission. Adding to their historical persecution, the Taliban and Daesh affiliated groups have launched an onslaught of attacks against Hazaras in both Afghanistan and Pakistan in recent years. Yet the OTP only cites one such attack—the killing of 11 people in the Khas Uruzgan district on June 24, 2010[4]—in charging the Taliban and affiliated armed groups with the crime against humanity of murder, not persecution on ethnic and religious grounds.

The absence of the additional charge from the OTP’s request, at least at this preliminary stage, may be due to the perceived politically sensitive nature of the issue. The Afghan government has not exactly taken a kind stance toward Hazaras. For instance, against the recommendation of an independent German engineering firm tasked with evaluating potential routes,  the government recently scrapped a plan to implement a major electricity project through the Hazara-populated regions. The government’s decision prompted a public outcry and protests in Kabul. The protests were attacked by terrorists reportedly affiliated with Daesh, resulting in approximately 500 civilian casualties, almost all of whom were Hazara. Despite the potential sensitivity of the issue, the omission of this charge from the OTP’s request does not preclude its examination once the PTC authorizes a formal investigation.[5] Given the preliminary nature of the pre-investigative stage, a formal investigation could—and should—be expanded to examine other potential crimes, including ethnicity and religion-based persecution.

Afghan National Security Forces

The OTP is also scrutinizing the role of the Afghan government in the conflict. The OTP alleges that the Afghan National Security Forces (ANSF) committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and sexual violence against conflict-related detainees.[6] The OTP accuses members of the National Directorate for Security (NDS) and the Afghan National Police (ANP) of perpetrating these Article 8 crimes on a large scale.

For these charges to continue, the Court must have jurisdiction over the case, and the case must be admissible. As a State Party to the Rome Statute, Afghanistan is subject to the Court’s jurisdiction for all crimes committed within its territory since May 1, 2003. With regard to admissibility, Article 17 of the Rome Statute stipulates that for a case to be admissible, (1) the State that would normally have jurisdiction must be “unwilling or unable genuinely to carry out the investigation or prosecution”; (2) any decision not to prosecute by the State must have “resulted from the unwillingness or inability of the State genuinely to prosecute”; (3) the defendant must not have been tried before; and (4) the case must be sufficiently grave.[7] The first three factors are sometimes referred to as the “complementarity” component of the admissibility test, while the fourth element forms the “gravity” component. The OTP argues that the case here satisfies all of the above criteria. It found that no national investigations or prosecutions have been conducted or are ongoing against those most responsible for the alleged crimes,[8] and that the gravity of the alleged conduct warrants prosecution.[9]

One obstacle to the Court’s exercise of authority is Afghanistan’s 2007 amnesty law, which pardons perpetrators of war crimes and crimes against humanity. [9] In its request, the OTP rightly criticizes the law of contributing to a culture of impunity within the country.[10] For example, the Afghan government invoked the amnesty law in its peace deal with Hezb-e-Islami, a previously terrorist-designated group led by the notorious warlord Gulbuddin Hekmatyar. After the government pardoned him, Hekmatyar was taken off the UN sanctions list, and his fighters have been released from prison—only to join the Taliban and resume fighting. Since returning to Kabul, Hekmatyar has sowed discord and even endorsed suicide attacks.

The ongoing peace process with the Taliban will further complicate the task of investigating the alleged crimes. Buoyed by the Hekmatyar deal, President Ghani has continued Karzai’s policy of wooing the Taliban, the group responsible for most of the alleged crimes. Ghani’s recent unilateral ceasefire with the Taliban resulted in thousands of insurgents pouring into major cities and even occupying areas in Kabul. Such “peace” deals with the Taliban—in which key stakeholders such as victim representatives and human rights groups are not given a voice—will inevitably pose major challenges to the OTP’s proposed investigations of the atrocities.

U.S. Armed Forces and the CIA

In addition to the Taliban and Afghan officials, in an unprecedented move, the OTP has proposed investigation of alleged war crimes by U.S. authorities. In particular, the PTC must decide whether to authorize investigation of the following alleged Article 8 crimes by the U.S. armed forces and the CIA: torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence.[11] The alleged crimes include those committed in Afghanistan, as well as those committed in other States Parties that have a nexus to the Afghan conflict: Poland, Romania, and Lithuania. These alleged acts were committed against suspected Taliban and Al Qaeda detainees, primarily during the period from 2003 to 2004. Having deemed the alleged crimes sufficiently grave, the OTP has further contended that domestic investigations and proceedings by the United States have focused on the rank-and-file rather than those most responsible for the alleged crimes.[12]

So far, the U.S. government has argued that the ICC lacks jurisdiction over American nationals because the United States is not a party to the Rome Statute. However, pursuant to Article 12(2), the Court has jurisdiction over any crimes committed on the territory of Afghanistan since May 1, 2003, regardless of nationality. According to the former chief prosecutor of the ICC, a better argument might be based on the Status of Forces Agreement (SOFA) between the United States and Afghanistan, which could preclude the ICC from exercising jurisdiction over American nationals. But SOFA-based arguments, like the one raised by Michael Newton,[13] are also susceptible to challenges. This is because of at least four reasons:

First, such arguments typically fail to distinguish between the existence of jurisdiction and its exercise.[14] Broadly speaking, jurisdiction entails two distinct aspects: jurisdiction to prescribe and jurisdiction to enforce. Prescriptive jurisdiction, also known as legislative jurisdiction, refers to the state’s authority to assert the applicability of its laws to given conduct. Meanwhile, enforcement jurisdiction, also called executive jurisdiction, is the state’s right to enforce its laws through its investigative and coercive powers. Unlike enforcement jurisdiction, prescriptive jurisdiction can be extraterritorial.

Under Article 98(2) of the Rome Statute, certain international agreements, like the SOFA, may constrain the exercise of domestic enforcement jurisdiction by a State Party. However, such agreements do not extinguish a State Party’s plenary prescriptive jurisdiction.[15] Prescriptive jurisdiction is an inherent attribute of a state’s sovereignty—that is, the “exclusive competence of the State in regard to its own territory”[16]—and, as such, cannot be contracted out through the SOFA.

Second, the Rome Statute’s structure suggests that the Court’s jurisdiction is not precluded by bilateral agreements like the SOFA. Article 98, on which Newton’s argument rests,[17] is located within Part XI of the Rome Statute, which addresses international cooperation, rather than Part II, which addresses jurisdiction.

Third, a distinction should be made between the ICC’s jurisdiction over the crime of aggression on the one hand, and the Court’s jurisdiction over war crimes and crimes against humanity on the other. While Article 15 bis (5) expressly excludes the Court’s jurisdiction over the crime of aggression committed by nationals of non-States Parties, the Rome Statute provides no such exclusion in respect of war crimes and crimes against humanity.[18]

Finally, other major international conventions provide similar criminal jurisdiction over nationals of non-States Parties. Examples include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention against Transnational Organized Crime.[19] For these reasons, the Court should not be in want of legal ammunition as it considers asserting jurisdiction over the United States.

Besides the substantive legal points, however, the OTP’s proposed investigation into U.S. conduct in Afghanistan also raises significant political and prudential questions. The Trump administration, known for its hostility toward international agreements and institutions, seems poised to adopt a particularly combative stance toward the ICC. Last year, now-National Security Advisor John Bolton condemned the OTP’s plan in this case, arguing that “the Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy.” Indeed, Bolton suggested, “[e]ven merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.” Recently, the United States also boycotted an informal UN Security Council meeting marking the Rome Statute’s twentieth anniversary. Such a decision is rare for a permanent member of the Council, and reflects the Trump administration’s particular disdain for the Court.

The Trump administration’s stance towards the Court represents a marked shift from the policy of strategic collaboration that prevailed during the second half of the Bush administration and under President Obama. It harkens back to—and builds upon—the United States’ historical antagonism with the Court. Back in 2002, when the Court was founded, Congress passed the American Service-Members’ Protection Act (ASMPA), a bill designed to limit cooperation with the Court. Meanwhile, the Bush administration tried to isolate the Court and prevent it from acquiring further legitimacy by not only “unsigning” the Rome Statute, but also entering into more than one hundred bilateral immunity accords with States Parties. These “Article 98 agreements” were designed to exempt Americans from ICC jurisdiction. (The SOFA with Afghanistan is one such agreement.)

This history and recent actions by the Trump administration suggest that the OTP will likely encounter significant resistance from U.S. authorities in its investigation (assuming that it is approved by the PTC).

Conclusion

Afghans anxiously await the ICC’s (likely affirmative) decision to authorize a formal investigation. Despite the difficulties the OTP encountered in reaching out to victims, the victim representations it received overwhelmingly support the investigation into war crimes and crimes against humanity in Afghanistan. Taking advantage of an increasingly feckless, and at times conniving, Afghan government, the Taliban and their affiliates continue to inflict bloodshed and suffering on the Afghan people. A formal investigation into the atrocities in Afghanistan is long overdue, and will be an uphill battle. But justice demands an emphatic answer to those who’ve grown accustomed to, and profited from, impunity—no more.

 


* Mehdi J. Hakimi is the executive director of the Rule of Law Program and lecturer-in-law at Stanford Law School. Mr. Hakimi was the former chair of the law department at the American University of Afghanistan.

[1] Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, Request for Authorisation of an Investigation Pursuant to Article 15, ¶ 72 (Nov. 20, 2017), at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF [hereinafter “OTP Request”]; Rome Statute of the International Criminal Court arts. 7(1)(a), (e), (h), opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter “Rome Statute”].

[2] OTP Request, supra note 1, at ¶ 123; Rome Statute art. 8.

[3] See OTP Request, supra note 1, at ¶¶ 37, 62-63.

[4] Id. at ¶ 100.

[5] See, e.g., Situation in the Republic of Kenya, No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶¶ 74-75 (Mar. 31, 2010), at https://www.legal-tools.org/doc/f0caaf/pdf/ (“The Chamber also underlines that in the development of the proceedings the Prosecutor is neither bound by his submissions with regard to the different acts constituting crimes against humanity, nor by the incidents and persons identified in the annexes appended to the Prosecutor’s Response. . . .”).

[6] OTP Request, supra note 1, at ¶ 161.

[7] Rome Statute art. 17(1).

[8] OTP Request, supra note 1, at ¶¶ 269, 276.

[9] See id. at ¶¶ 337, 344.

[10] Id. at ¶ 5.

[11] Id. at ¶ 187.

[12] See id. at ¶¶ 299-300.

[13] See Michael A. Newton, How the International Criminal Court Threatens Treaty Norms, 49 Vand. J. Transnat’l L. 371, 405 (2016) (arguing that the SOFA between the United States and Afghanistan obviated the latter’s ability to delegate jurisdiction over U.S. nationals for crimes committed in its territory to the ICC).

[14] For analysis of the differences between the various aspects of state jurisdiction, see generally Roger O’Keefe, Response: “Quid,” Not “Quantum”: A Comment on “How the International Criminal Court Threatens Treaty Norms”, 49 Vand. J. Transnat’l L. 433, 435 (2016); Carsten Stahn, Response: The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine—A Reply to Michael Newton, 49 Vand. J. Transnat’l L. 443, 450 (2016). See also Roger O’Keefe, Universal Jurisdiction—Clarifying the Basic Concept, 2 J. Int’l Crim. Just. 735, 736-37 (2004).

[15] A state’s “title to exercise jurisdiction rests in its sovereignty.” SS Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 19.

[16] Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).

[17] See Newton, supra note 13, at 391 (discussing the intent of Article 98).

[18] In full, Article 15 bis (5) states: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Rome Statute art. 15 bis.

[19] See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 5, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention against Transnational Organized Crime art. 15, Nov. 16, 2000, 2225 U.N.T.S. 209.