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Managing Mixed Migration

The term “mixed migration” is typically used to describe the cross-border movements of people who are prima facie refugees and people who move for economic reasons. But the term also characterizes many individual migrants’ mixed rationales for leaving home: It is possible to migrate both to escape persecution and to seek opportunity, and, indeed, vast numbers of people have done just that. In recent years, governments around the world have seized upon migration’s mixed character to justify restrictive responses to new arrivals, to appeal to domestic constituencies, and to incentivize cooperation with foreign partners.

There is no shortage of contemporary examples. The displacement of Ukrainians to the rest of Europe in 2022; the reported instrumentalization of Iraqi migrants by Belarus in 2021; and the repeated “caravans” of migrants leaving Central America for the United States in 2018 are just a few of the mobility events that have defined the contemporary era. Taken together, these events have demonstrated the wide range of public and governmental perceptions of migration’s mixed character.

The essays collected in this Symposium survey the law, politics, and history of mixed migration. They reveal how states have interpreted the term and showcase the promise and perils of migrant categorization. Above all, they tell a story about how governments rely on the mixed character of migrant flows and the mixed motives of people on the move to draw categories, force emigration, and constrain immigration.

The Symposium begins with two essays that grapple with the economic rights of asylum seekers and refugees, exploring how the categories of “refugee” and “economic migrant” have complicated asylum seekers’ right to work. In Refugees as Workers, Jaya Ramji-Nogales argues that several provisions of the 1951 Convention Relating to the Status of Refugees conceptualize refugees as laborers, in contrast to the prevailing consensus. In Impoverishing Asylum, Zachary Manfredi explores how a recent U.S. regulatory regime restricts asylum seekers’ access to work authorization, departing from international law’s recognition of asylum-seekers as bearers of social and economic rights.

Two subsequent essays address the strategies that states use to externalize migration control and, when asylum seekers reach state territory, the measures that governments take to avoid categorizing noncitizens as refugees. As Craig Damian Smith argues in Visa Policies, Migration Controls, and Mobility Aspirations, recent “global regimes of closure” have foreclosed regular migration, frustrated people’s mobility aspirations, and encouraged “new mixed flows.” When noncitizens arrive on a state’s territory, the state is left to distinguish between those deemed deserving of entry and those deemed outside the categories that confer protection. As Martijn Stronks contends in Locked in Temporality, states have adopted mechanisms that perpetuate precarity among new arrivals while those all-important status determinations are being made.

When noncitizens fall beyond the existing categories used to label migrants, the consequences can include prolonged restrictions on their movement. In Margins of Empire, Timothy Webster traces the long-term effects of Japan’s forcible relocation of Koreans during World War II, along with the efforts to redress the legacy of that policy. In When Do “Closed Camps” Become Prisons by Another Name?, Mara Revkin adds to the longstanding discourse regarding constraints on freedom of movement in camp settings by examining the exceptional circumstances presented by the containment of Syrian, Iraqi, and third-country nationals in Al-Hol, a camp in northeastern Syria.

The Symposium’s final essays detail innovative responses to the shortcomings of the current migration regime. Stefano Angeleri and María Teresa Palacios Sanabria, in A Rights-based Assessment of the Temporary Protection Statute for Venezuelans in Colombia, offer a rare academic analysis of the recently implemented regularization mechanism for Venezuelan migrants in Colombia. Pooja R. Dadhania, meanwhile, imagines a new manner of categorizing migrants based on responsibility for transnational wrongful acts in Reimagining Sovereignty to Protect Migrants.

Diverse in examples and themes, these essays reveal some of the many questions that mixed migration raises both for states and for international law.

Introduction

Refugees as Workers
Jaya Ramji-Nogales

Impoverishing Asylum
Zachary Manfredi

Visa Policies, Migration Controls, and Mobility Aspirations
Craig Damian Smith

Locked in Temporality
Martijn Stronks

Margins of Empire
Timothy Webster 

When Do “Closed Camps” Become Prisons by Another Name?
Mara Revkin

A Rights-based Assessment of the Temporary Protection Statute for Venezuelans in Colombia
Stefano Angeleri and María Teresa Palacios Sanabria

Reimagining Sovereignty to Protect Migrants
Pooja R. Dadhania

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 Ethics, in 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).

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.

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

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 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.

Written by Hendrick Townley & Asaf Lubin

“It was noon on an ordinary sunny spring day in May, but the scene was not as it should have been outside the Islamic Da’wah Center in downtown Houston, Texas. On one side of the street stood approximately ten protestors. . . .”

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.