Introducing our new student editors: Fernanda Canessa, Kendall Coniaris, and Prerna Tara

The IntLawGrrls editorial team is delighted to welcome three new student editors to the blog: Fernanda Canessa, Kendall Coniaris, and Prerna Tara.

Screen Shot 2020-08-13 at 2.12.45 PM

 

Fernanda Canessa is a second-year law student at Benjamin N. Cardozo School of Law in New York City. Prior to attending Cardozo, she received her MA in International Economics and International Studies at the Johns Hopkins School of Advanced International Studies (SAIS), where she spent her first year in Bologna, Italy. She plans on pursuing a career in international human rights.

 

Screen Shot 2020-08-13 at 2.13.15 PM

 

Kendall Coniaris is a second-year law student at Benjamin N. Cardozo School of Law. Prior to law school, she received her B.A. in International Affairs with a concentration in international Environmental Studies and B.A. Dance from George Washington University. After graduation, Kendall worked with environmental organizations and farm-to-table restaurants for several years. Her environmental interests led her to attend law school, with the hope of contributing to the constantly evolving intersection of environmentalism and international human rights.

Screen Shot 2020-08-13 at 2.13.54 PM

 

Prerna Tara is a Master’s student in Public International Law at Leiden Law School. She holds her undergraduate degree in Law from College of Legal Studies, University of Petroleum and Energy Studies, India. She is presently working on her Master’s Thesis which is based on the ICC’s reparation system for victims of conflict related sexual violence. She is also working as a researcher for The Leiden Advocacy Project on Plastics where her work deals with researching on legislative regulations related to plastic pellets. She is also a member of The Leiden Public International Law Society and has helped organize workshops like “Is ICL the Best Tool for Combating Systematic Use of Sexual Violence?” and various other events.

She practiced in the High Court of Punjab and Haryana, India before starting her Masters. She has assisted in pro- bono cases such as researching on implementation methods to lessen noise pollution in Punjab and Haryana for the Amicus Curie of the case, being one of the examples. She has interned at some of the best legal firms in India which has brought her face to face with the legal complexities in areas of corporate law, white collar crimes etc. She has also worked as a legal intern under Honourable Justice Surya Kant in 2016, who is presently serving as a Judge of the Supreme Court of India.

Heartfelt welcome!

The Quest For Gender Based Asylum: Exploring ‘Women’ as a Particular Social Group

The United Nations Convention Concerning the Status of Refugees, 1951(‘Convention’) is the centerpiece of international refugee protection that provides protection to individuals who are forced to flee their homes due to a well-founded fear of persecution. The United States of America (‘US’), one of the treaty’s signatories, has adopted Article 1(A) of the Convention without any substantial reservation, understanding or declaration (‘RUDs’). Section 101(a)(42) of the Immigration and Nationality Act, 1952(‘INA’) grants asylum if an alien is unable or unwilling to return to his/her country of origin because s/he has suffered past persecution or has a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ 

Notably, both the Convention and the INA leave out ‘gender’ as a ground for persecution. However, this has not stopped women from making claims of asylum on the basis of their gender. In fact, the US records a 30-year-long quest in establishing gender as a protected category in asylum law. In the recent decision of Jaceyls Miguelina de Pena-Paniagua v. William P. Barr (‘De Pena’) the US Court of Appeals for the First Circuit recognized gender as a legal basis for granting asylum, allowing the US to finally become a safe haven for women fleeing domestic violence. The Harvard Immigration and Refugee clinic that represented the asylee, a Dominican woman escaping domestic and sexual violence, expressed that the Judge saw domestic violence for what it was–persecution for her gender, and that the decision has finally put gender on par with other grounds for asylum. 

Persecution of Women 

In order to obtain asylum, an asylum-seeker must prove past persecution or a well-founded fear of future persecution. The term ‘persecution’ has not been defined in the INA or Convention. There is no universally accepted definition of persecution, however most acts of bodily violence have been recognised as such. The Board of Immigration Appeals (‘BIA’) has defined persecution as a ‘threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.’[i]

While considering the case for women, instances of persecution can be split into two categories:

  1. The firstkind occurs within private spheres, where the persecutor is generally an individual who shares an intimate relationship with the woman, such as a romantic partner or relative. This include acts of sexual/domestic violence, economic/emotional abuse, or regressive cultural practices such as female genital mutilation, honour killings, etc. 
  2. The secondkind is where the persecution is carried out or condoned by a public or private, non-state actor, such as Governments, or militant groupswho specifically subject women of an  ethnicity to sexual violence or subjugation. This category encompasses forced population control strategies, penalties that restrict women’s reproductive freedoms, sexual assault, rape, trafficking, forced marriages, etc. 

Evidently, in both categories, women are persecuted because of their gender and their particular societal status as women.  If persecution is studied as a means of exerting control over a race, religion or particular social group, it is clear that women fit this bill.

Additionally, the asylum-seeker must also prove that she is unable or unwilling to return to, or is unable to avail protection from persecution in, her home country. Interestingly, in most cases of persecution of women, the government and the law enforcement are unresponsive to domestic violence or sexual violence, and in some cases, are even responsible for it. 

Women as a Particular Social Group 

Defining a PSG is extremely important because, depending on how narrowly or broadly it is construed, it can result in vast differences in who is granted asylum. The UNHCR Executive Committee in 1985 recognised that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society may be considered as a PSG. In 1991, the UNHCR issued guidelines on the protection of refugee women in which it reiterated the same principle. The US BIA also has provided some guidance on the matter. In the Matter of Acosta, the BIA recognised that a PSG should share a common, immutable characteristic, such as sex. It is relevant to note that sex and gender are conflated in refugee law. However one can argue that gender is also an ‘immutable characteristic’, as it fundamental to an individual’s identity or conscience. Later, ‘social visibility’ and ‘particularity’ were identified as additional factors for PSGs. 

The issue that women face while claiming membership to a PSG is that they have to prove the group’s constitution, characteristics and then establish that they fit the set criteria. This double liability makes it harder for women to seek asylum. While certain women have been successful in making a claim for asylum in the US – women who refuse to undergo the process of female genital mutilation, and victims of domestic violence, there are still gaps that can only be filled by classifying ‘women’ as an independent PSG. 

Case for the wider group of ‘women’

The decision of the First Circuit in De Pena makes an effort to classify women as a PSG. While the asylee only made a case of belonging to the PSG of Dominican women who were unable to leave or escape a domestic relationship, the court positively considered and advocated for the wider category of ‘women’ to be classified as a PSG.

The main objection in construing ‘women’ as a PSG, is that it encompasses a large number of people and this will open floodgates to a large number of women seeking asylum.[ii]But in De Pena, the court acknowledged the view of Perdomo v. Holder that if race, religion and nationality refer to large classes of persons, PSGs may do as well as they are equally based on innate characteristics. Therefore a PSG cannot be rejected because it represents too large a portion of the population as this would misunderstand the function of the protected categories. Gender, like all other grounds, only functions to recognise the reason an individual is persecuted and does not imply anything larger.[iii]

While US asylum law only recently has recognized gender as a protected status, other countries set a good example for the way forward. In 1993, the Immigration and Refugee board of Canada released guidelines for gender-related persecution. Interestingly, this has not led to an explosion of claims. Further, in 2006, the House of Lords recognized that gender alone may fall within the definition of a PSG. Such definitive cases and specific guidelines aid the cause of women asylum seekers, and go a long way in recognizing the case for women as a particular social group. 


[i]Hernandez- Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985); Guevara-Flores v. INS, 786 F.2d 1242 (5th Cir. 1986).

[ii]Andrea Binder, Gender and the Membership in a Particular Social Group Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001), p 191.

[iii]Andrea Binder, Gender and the Membership in a Particular Social Group Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001), p 191.

Introducing Shreenandini Mukhopadhyay

Shreenandini Mukhopadhyay

It is our great pleasure to introduce our new IntLawGrrls contributor Shreenandini Mukhopadhyay. Shreenandini is a third-year student at National Law University, Mumbai. She is one of the founding members of the Gender & Sexuality Forum at her University and has been instrumental in organizing speaker events & discussion groups. Previously, she has worked in areas of prison reform and is currently researching women’s contributions to India’s constitution-making process. She is interested in studying the cross-sections of political theory, law, and feminism; and takes a keen interest in writing about women’s rights in international law. She believes in effecting change through community care and runs a Mumbai- based Resource Directory. She aspires to write about feminist jurisprudence and practice at the Bombay High Court.

Heartfelt welcome!

Introducing Shebani Bhargava

Shebani BhargavaIt is our great pleasure to introduce our new IntLawGrrls contributor, Shebani Bhargava. Shebani is a final year student at the Maharashtra National Law University Mumbai, India. She has worked as a Research Assistant with Child Rights and You, a NGO that works towards upliftment of underprivileged children and has also interned at the Society for Nutrition, Education and Health Action, a NGO that focuses on prevention of violence against women. She has also been part of the Research Committee at the Centre for Research in Criminal Justice at MNLU Mumbai. Apart from this, Shebani has interned at various top tier firms in the country. She is currently the Managing Editor of the Arbitration and Corporate Law Review.

Shebani’s areas of interest include corporate law, commercial dispute resolution, human rights law and public international law.

Heartfelt welcome!

On Hiroshima and Nagasaki and the World at 75 years by Nobel Peace Prize Laureate Adolfo Pérez Esquivel (in Spanish)

Hiroshima y Nagasaki

Y el mundo a 75 años

El avión sobrevoló la ciudad de Hiroshima, los pilotos a cumplir su rutina  de  guerra, arrojar las bombas sobre territorio enemigo y regresar a la base. Ese día las instrucciones de sus jefes fue que llevaban un arma especial,   arrojar la bomba en el objetivo asignado y alejarse lo más rápido posible del blanco. El día 6 de agosto el cielo  estaba sin nubosidad y el comandante feliz  porque habían puesto el nombre de su madre Enola Gay al avión.

 Cuando arrojaron la bomba atómica sobre la ciudad de Hiroshima algo se quebró en su interior y el piloto gritó -¡Dios mío,… Dios mío… que hemos hecho!…..en ese minuto el mundo cambió. El presidente Truman de los EEUU dio la orden de arrojar la bomba sobre Hiroshima, una ciudad civil sin bases militares,  la bomba atómica  desato  el horror, la destrucción y muerte se sobre  la  humanidad.

Los pilotos regresaron con la muerte en el alma, ya nada sería igual. El gobierno de Truman buscó todo tipo de justificación para justificar lo injustificable,  Japón ya estaba vencido antes de las bombas. La crueldad humana no tiene límites, como no la tuvo el nazismo en los campos de concentración  contra los judíos.

El presidente Truman  impartió la orden de  arrojar la segunda bomba atómica el día 9 de agosto de 1945 sobre la ciudad de Nagasaki.  El “éxito de las masacres” fue total, necesitaba  mostrar el poderío de los EEUU al mundo y en especial a la Unión Soviética, su aliado circunstancial en la guerra.

Una madre víctima de la bomba en Nagasaki deja una carta a su hija de dos años que sobrevive, es de una ternura infinita  donde le dice como cambió la vida, que su amor permanece más allá de la muerte y  que la recuerde.

En mis viajes a Japón en varias oportunidades estuve en  Hiroshima, me reuní con  mujeres – Ibakushas,-  sobrevivientes de la bomba;  son  testigos del horror y nos  acompañaron  recorriendo los túmulos y lugares dónde estallo la bomba y donde se encuentran  las víctimas; decían que  tienen la responsabilidad de trasmitir la memoria  de lo vivido cuando eran niñas a tres kilómetros de la ciudad en la escuela y ese día perdieron su familia, después de los bombardeos hasta el presente sufren las radiaciones, el cáncer y la contaminación que mató a miles de japoneses/as  no combatientes.

La humanidad frente al dolor y tragedia  de dos guerras en el siglo XX  buscó encontrar caminos de entendimiento y respeto entre los pueblos y dio nacimiento a  las Naciones Unidas y la Declaración Universal de los Derechos Humanos, un paso fundamental en para lograr superar el horror  y sanar las heridas y tratar de encontrar nuevos horizontes de vida  para que nunca más vuelva a desatarse  la tragedia de todas las guerras. Si bien los organismos internacionales cumplen una función necesaria  en el mundo, la carrera armamentista, las guerras, los conflictos bélicos, de alta y baja intensidad, y la explotación de los bienes y recursos de la Madre Tierra  no terminaron. Continúa la ambición del poder dominación acumulando arsenales nucleares entre las grandes potencias y generando más pobreza, marginalidad y hambre en el mundo

 Hoy nuestra Casa Común sufre la Pandemia del Coronavirus,  tragedia que  afecta a toda la humanidad con miles de muertos y millones de infestados y sin encontrar hasta el momento vacunas o antídotos para superar la tragedia global.

El Covid 19 es consecuencia del maltrato del ser humano contra la Madre Tierra, la destrucción de la floresta, los agro-tóxicos, las quemas intencionales que provocan la perdida de la biodiversidad,  la muerte de los animales y la violencia contra las comunidades indígenas;  devastación y crueldad que ha roto el equilibrio entre el ser humano y la Madre Tierra, es urgente llamar a la conciencia de los gobiernos que privilegian el capital financiero sobre la vida de los pueblos.

Llamar a la conciencia de  empresas que en su afán de lucro no respetan los derechos de la Naturaleza, es urgente convocar a un “Nuevo contrato Social”  para encontrar nuevos caminos de convivencia, caso contrario las pandemias se agudizarán cobrando más vidas y la destrucción de  bienes y recursos naturales.

Los centros de investigación científica están cerca de alcanzar una vacuna para el Covid 19, es necesario que la misma sea gratuita para toda la humanidad, sin exclusiones de los países más pobres.

Es necesario hacer memoria, no para quedarse en el pasado, la memoria nos ilumina el presente y nos llama a reflexionar, a 75 años de Hiroshima tenemos que ver el caminar de la humanidad,  sus avances y retrocesos, no se trata de recordar únicamente la tragedia y a las víctimas, debemos honrar la memoria de las víctimas de las guerras y mirar el camino a recorrer de la humanidad.

No olvidar  el momento que el mundo cambia cuando el avión por orden del presidente de los EEUU Truman lanza su carga mortífera sobre poblaciones civiles.

El pueblo japonés sobreponiéndose al dolor y destrucción ha logrado grandes avances en la reconstrucción de ciudades devastadas como Hiroshima y Nagasaki, pero preserva la memoria de los días  6 y 9 de agosto de 1945 en que el mundo cambio.

 La humanidad necesita desarmar la “razón armada”, hacer  realidad lo que en el Foro Social Mundial – FSM- proclamamos que “Otro mundo es posible”, transformar las armas en arados  como  dice el profeta Isaias,  a fin de alcanzar la Paz y unidad en la diversidad entre las personas y los pueblos del mundo.

Adolfo Pérez Esquivel

Buenos Aires, 1 de agosto del 2020

 

VP Biden’s Ambitious Agenda for Women

The presumptive U.S. Democratic presidential candidate, former Vice President Joe Biden, has released his “Agenda for Women.”  It’s a tour de force of dozens of key policy priorities, both domestic and international, focused on advancing women’s rights at home and abroad.  Some key takeaways in the national security and human rights space are outlined below along with some areas where additional attention would be welcome:

ERA YesOne Biden’s his core pledges is to advocate for Congress to recognize that the necessary ¾ of the states have ratified the Equal Rights Amendment (the ERA). First introduced in 1923, approved by Congress in 1972, and then sent out to the states for ratification with a deadline of 1979 (later extended to 1982), the ERA received its 38th ratification in January 2020 when Virginia finalized its ratification. Litigation over whether the time limits placed on ratification by Congress are constitutional has been proceeding in several courts (with one suit filed by Equal Means Equal being dismissed  earlier this month for lack of standing). The House passed a resolution that eliminates the putative deadline; so far, there has been no comparable action in the Senate. The Alice Paul Institute—named for the Quaker suffragist who authored the ERA after being instrumental in gaining passage of the 19th Amendment giving women the vote—offers a history of the amendment here. Prof. Julie Suk’s take on why it failed before and how it can succeed is here. Biden co-sponsored the ERA nine times while in Congress. President Donald J. Trump, on the other hand, has opposed the lawsuits, including one  brought by three states attorneys general (Virginia, Nevada, and Illinois) to add the ERA to the U.S. Constitution.

On the multilateral plane, Biden will seek ratification of the Convention on the Elimination of Discrimination Against Women (CEDAW), a treaty dedicated to global women’s rights. Nearly all U.N members have ratified this treaty (in holding out, the United States enjoys the company of Iran, Somalia, and Sudan and a couple of small island nations—see map below). The Senate Foreign Relations Committee has debated the treaty several times, but so far the full Senate has refused to give its advice and consent to ratification, in part due to unfounded fears the treaty will be cited to promote abortions and prostitution and will undermine U.S. sovereignty. Several U.S. cities and municipalities, including San Francisco, have adopted ordinances and policies in keeping with the treaty and the “human rights cities” movement. 1200px-CEDAW_Participation.svg

When it comes to reproductive rights, Biden calls for the repeal of the 1976 Hyde Amendment, which bans U.S. federal funds (mainly Medicaid) from paying for abortions (except in cases in which the pregnancy results from rape or incest or if the woman’s life is endangered by the pregnancy). The Amendment disproportionately impacts low-income women and women of color. This marks a welcome reversal from Biden’s stance at an early Democratic debate during the primary race.  A bill to repeal the Amendment, known as the EACH Woman Act, is working its way through Congress.

Biden would also rescind the so-called “Mexico City Policy” (a.k.a. the global gag rule) that President Trump reinstated but in a more far-reaching form. Withdrawing this ruleGlobal Gag Rule would enable the federal government to support civil society organizations engaged in global health efforts around the world, even if recipients provide information on safe and legal abortion services as part of their public health work. Remarkably, as one of his first moves as President, Trump, flanked by a phalanx of beaming white men, dramatically expanded the policy. Heralding the vindictiveness that has so characterized this administration, this move followed on the heels of hundreds of Women’s Marches that drew millions around the world into the streets (my dispatch is here) and a campaign that repeatedly revealed his deep-seated misogyny. Reversing the global gag rule should be an urgent priority: research has shown that the policy dramatically undermines women’s health and, paradoxically, leads to increased abortion rates in developing countries. Although this move can be accomplished by executive action, the Global Health, Empowerment, and Rights (HER) Act (currently in the Committees on Foreign Relations and Affairs) would prevent future Republican presidents from reinstating it again.

Furthermore, as part of his broader immigration platform, Biden promises to dedicate himself to immigration reform and undo the Trump administration’s harshly punitive policies. This includes: reopening the United States to refugee resettlement (raising the admissions cap to 125,000), re-establishing a humane and expeditious asylum process for people fleeing persecution, and reinstating asylum protections for people who are escaping domestic and sexual violence. The latter requires the reversal of a decision by then-Attorney General Jeff Sessions to invoke a rarely used power and overturn a Board of Immigration Appeals decision that had allowed such survivors to demonstrate persecution on the basis of their membership in a “particular social group”—one basis for receiving refugee status. Biden will also increase the number of visas for survivors of domestic violence under the Violence against Women Act (VAWA) and for victims of crime (so-called U-visas), and expedite the process for granting these and related immigration benefits, including T visas for victims of human trafficking. It will not be enough, however, to simply dismantle these cruel Trump policies; rather, Biden should develop ways to repair the harm done, including through providing psycho-social rehabilitation to children and families traumatically torn asunder and placed in inhumane detention conditions. Biden should also explore the implementation of restitutionary immigration benefits, such as expedited pathways to asylum and family reunification.

In addition to issuing a whole plan devoted to ending violence against women, Biden has endorsed passage of the International Violence Against Women Act (IVAWA), which would make ending the epidemic of violence against women worldwide a key foreign policy priority. The proposed legislation recognizes that

“Rape and sexual assault against women and girls are used to torture, intimidate, and terrorize communities. Rape and sexual assault are used as tools of war in conflict zones, including the Democratic Republic of the Congo, Iraq, Syria, Afghanistan, El Salvador, and South Sudan.”

If enacted, the IVAWA would commit the United States to helping women and girls who are victims of violence to gain access to justice. The timing of this will be crucial; women everywhere are experiencing higher levels of domestic violence while suffering from reduced access to protective services due to the Covid-19 pandemic. These commitments reflect the fact that Biden co-authored the U.S. Violence Against Women Act in 1994 (one of the legislative achievements of which he is most proud) and helped pass the William Wilberforce Trafficking Victims Protection Reauthorization Act, which strengthened the United States’ anti-trafficking framework.  Biden released a statement on the World Day against Trafficking in Persons, July 30th, setting forth his anti-trafficking priorities.

This focus on ending VAW globally is part of Biden’s larger Women, Peace & Security (WPS) plank that will focus on supporting women’s leadership globally. This includes full implementation of the Women, Peace, and Security Act, passed by Congress in 2017, which is premised on research that including women in conflict prevention efforts, peace building processes, and post-conflict governance helps to reduce conflict and instantiate stability. The Act mandates a government-wide strategy to increase the participation of women in peace and security operations and to support transitional justice and accountability mechanisms that reflect the experiences of women and girls. 1_Qz_BwcroQlTViHAMkaJswgThe Act responds to a suite of resolutions emanating from the U.N. Security Council to the same end (starting with Resolution 1325) and builds on the United States’ National Action Plan on WPS, which was released in 2011 and then strengthened in 2016. Both plans call for effective measures to investigate sexual and gender-based violence and to bring those responsible to justice. The Trump Administration has only haltingly implemented the WPS Act, while taking a number of concrete steps in the opposite direction, as demonstrated by Ambassador Don Steinberg, who once led USAID.

Biden’s Agenda for Woman contains a whole slate of economic pledges, underscoring a recognition that economic security is a women’s issue just as much as reproductive rights or the imperative to end gender discrimination. These include support for a number of pieces of draft legislation, including:

Biden has also drawn attention to the need to better support caregivers, particularly in the Covid-19 era. The Agenda announces a whole array of measures in the health, education, and economic sectors for LGBTQI+ individuals (indeed, the list of policies to be reversed vis-à-vis this community is regrettably a long one), as well as disabled, incarcerated, native, immigrant, and veteran women and women of color.

Finally, consistent with an Obama-era Executive Order, Biden has also pledged to ensure his political appointees, and the entire federal workforce, reflect the diversity that is America. Besides his intention to choose a woman Vice President and an African American women for the Supreme Court, he also committed to work for gender parity as he builds his foreign policy and national security teams, a campaign launched by the Leadership Council for Women in National Security (LCWINS) at the start of the election season. The commitment—which other Democratic candidates also adopted—is based not only on legitimate concerns for gender equity but also on consistent research that diverse teams are stronger, more effective, and more creative. This imperative is echoed by organizations such as Women of Color Advancing Peace, Security & Conflict Transformation (WCAPS), the Athena Leadership Project, and Women in Defense (WID).

All this may explain why polls have VP Biden up 25 points over Donald Trump with women as a whole—an historic margin. This is notwithstanding Trump’s pandering to “The Suburban Housewives of America,” perhaps because Biden’s numbers are also higher in suburban polls. To be sure, gender has always been—and likely will be—an issue on the campaign trail, but the disparity between the two candidates could not be more stark.

 

The Right to Seek and Enjoy Asylum During COVID-19

GYx7Wd6YzUI

A Syrian boy poses for a picture during an awareness workshop on Coronavirus (COVID-19) held by Doctor Ali Ghazal at a camp for displaced people in Atme town in Syria’s northwestern Idlib province, near the border with Turkey, on March 14, 2020. (Photo by AAREF WATAD / AFP)

In the words of the UN High Commissioner for Refugees, Filippo Grandi, “[i]f ever we needed reminding that we live in an interconnected world, the novel coronavirus has brought that home.” Though it is a problem common to all of us, the suffering is disproportionately more for the world’s most vulnerable groups, including refugees and asylum-seekers. These vulnerabilities are exacerbated by State practices limiting asylum as a response to the pandemic. Though public health emergencies allow States to impose certain limitations, this must be done in compliance with States’ relevant obligations under international law. This post provides a short overview of the most basic but key protections afforded to asylum-seekers and refugees under international law.

Though there is no internationally agreed upon legal definition of asylum, the UNHCR defines it as a process starting with safe admission into a territory and concluding with durable solutions, i.e., voluntary return in safety and dignity, local integration, or resettlement to another location or country. “Asylum-seeker” refers to individuals who are seeking international protection and have not yet been granted asylum by the receiving State. “Refugee” refers to someone who has left their country of origin and is unable or unwilling to return because of a serious threat to their life or freedom on the grounds listed under Article 1A(2) of the 1951 Refugee Convention, i.e., race, religion, nationality, membership of a particular social group, or political opinion. Other regional instruments may provide different definitions to include other grounds for refugee status, such as a “massive violation of human rights” (e.g., the Cartagena Declaration on Refugees). Not every asylum-seeker will ultimately be recognized as a refugee, but every refugee is initially an asylum-seeker. In that regard, at the international level, refugee status entitles those who satisfy that criteria to a specific set of protective regimes laid out in the 1951 Convention and its 1967 Protocol. However, asylum-seekers are still entitled to certain protections in compliance with the receiving State’s obligations under international law, regardless of being recognized as a refugee.

The right to seek and enjoy asylum is enshrined in various international and regional instruments including the Universal Declaration of Human Rights, African Charter on Human and Peoples’ Rights, and Charter of Fundamental Rights of the European Union. The UNHCR interprets the right to asylum to include respect for the principle of non-refoulement, admission to the territories of States, and being treated in compliance with the respective human rights and refugee law standards. Individuals seeking international protection would benefit from the human rights obligations that a State owes to its citizens without any discrimination.

But what are the main parameters of such protection during a pandemic?

The recently issued Human Mobility and Human Rights in the COVID-19 Pandemic: Principles of Protection for Migrants, Refugees, and Other Displaced Persons developed by a committee of established experts and practitioners, and endorsed by a 1,000 international experts, lays out 14 key principles applicable to all persons, irrespective of their immigration status. These principles are developed to elucidate the scope of relevant human rights obligations during emergencies as States and other relevant stakeholders navigate the pandemic response.

In the same vein, the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (adopted by the UN Economic and Social Council and UN Human Rights Committee general comments on states of emergency and freedom of movement), provide complimentary guidance as they are critical in implementing the scope of limitations to human rights in public health and national emergency situations. The Siracusa Principles highlight that such limitation must be based on one of the grounds recognized by the relevant article; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim (Principle 10). Any derogation measure must be “strictly necessary to deal with the threat and proportionate to its nature and extent” (Principle 39). Additionally, certain rights are non-derogable even in the events of public emergency, including the right to life and freedom from torture, cruel, inhuman, or degrading treatment, or punishment among others.

In light of the above, key principles pertaining to States’ treatment of asylum-seekers and refugees in a pandemic can be listed as follows:

Non-refoulement

The prohibition of return (to a real risk of persecution, arbitrary deprivation of life, torture, or other cruel, inhuman, or degrading treatment) cannot be derogated from, even during a public health emergency. The cornerstone principle guaranteeing the right to seek and enjoy asylum is the principle of non-refoulement set forth under Article 33 of the 1951 Convention, which prohibits States from expelling or returning refugees “in any manner . . . where his life or freedom would be threatened.” The principle applies not only to removal, but also to refusal of entry. It applies to all refugees – even if their status has not been officially determined. The prohibition has attained the status of customary international law and is considered a jus cogens norm.

As the UNHCR clarified in its recent guidance on COVID-19 responses, imposing blanket measures to prevent refugees or asylum-seekers from admission or discriminating against certain nationals without demonstrating relevant evidence of a health risk or putting in place measures to protect against refoulement would violate the prohibition. However, in the US, the Department of Health and Human Services has implemented an order to suspend the introduction of persons into the US from certain countries and requiring their immediate repatriation. Belgium and the Netherlands have also suspended the right to asylum for newly arriving asylum-seekers due to COVID-19 despite the guidance from the European Commission stating that even though national authorities may take necessary measures to contain further spread of the pandemic, such measures should be implemented in a non-discriminatory way taking into account the principle of non-refoulement and obligations under international law. Closing borders altogether in these manners violates the principle of non-refoulement affecting the right to seek and enjoy asylum.

Measures on asylum-seekers upon entry

In all cases, non-discrimination, human rights, and dignity of all travelers must be respected. Relevant WHO regulations are given particular weight in the context of a limitation imposed on the ground of public health (Siracusa Principles, Principle 26). As defined by the WHO’s International Health Regulations, countries may impose relevant measures during pandemics as long as they are non-arbitrary, non-discriminatory, and proportionate. Similarly, medical examinations and other measures may be implemented for “travelers” (“a natural person undertaking an international voyage”) at ports of entry, but these measures cannot be “invasive.” Similarly, Article 13 of the EU Reception Conditions Directive lays out that EU Member States may proceed to a medical screening of applicants for international protection on public health grounds while such medical screening must comply with fundamental rights and the principle of proportionality, necessity, and non-discrimination. Furthermore, Article 19 of the Directive requires that applicants receive “the necessary health care, which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders.” The European Commission specified that such health care would also include relevant treatment for COVID-19.

Non-discrimination

Lack of effective realization of non-discrimination undermines the right to asylum. Core international human rights treaties prohibit “discrimination of any kind” viz. refugees and asylum-seekers. In practice, however, migrants are less likely to benefit from relevant health and financial services due to lack of legal status and access to services. Moreover, migrants are often stigmatized and blamed for spreading viruses. In other cases, COVID-19 measures are applied in discriminatory manners as seen in Lebanon, where curfews have been applied more stringently towards Syrian refugees.

Equal treatment and non-discrimination with regards to the right to health are especially crucial in the context of COVID-19. As part of the right to health, States must provide access to food, water, sanitation, and shelter to all persons (UDHR Art. 25 and ICESCR Art. 12 in particular). States must refrain from practices reinforcing stigma and xenophobia and implement public health responses inclusive of all marginalized groups (see, in particular, the International Convention on the Elimination of All Forms of Racial Discrimination Arts. 1.1, 2, 4; CERD Committee General Recommendation No. 30; and 1951 Refugee Convention, Art. 3).

Detention

Detention is a practical impediment to the implementation of the right to asylum. The UNHCR guidelines on the issue establish that a period of confinement may be imposed legitimately as a preventive measure in the event of a pandemic but that such confinement should be limited to its purpose and cease as soon as the necessary testing or treatment is complete. Detention must always be an exceptional measure of last resort and conducted in accordance with the principles of legality, necessity, and proportionality. Alternatives to detention should be considered, including regular reporting requirements, particularly when vulnerable groups are concerned. Human Rights Watch recently reported the arbitrary detention of nearly 2,000 migrants and asylum-seekers in Greece – including vulnerable groups like children, persons with disabilities, and pregnant women.

Detention constitutes a significant risk factor for contagious spread during a pandemic. Such detained people are highly vulnerable to the spread of COVID-19 mostly due to the inadequacy of detention conditions, overcrowding, limited supplies for personal cleaning, limited personal protective equipment such as masks and gloves, and poor access to health care. Detention of displaced persons is not permissible when such detentions pose serious threats to their health and life due to COVID-19. In addition to the adverse risks and impacts to the right to life and health, COVID-19 causes risk of indefinite detention as these people are neither admitted nor provided the option to return due to border closures.

Conclusion

Amidst a global pandemic, adhering to basic principles of international law vis-à-vis asylum seekers and refugees is vital. States cannot impose blanket measures banning asylum seekers and refugees from seeking and enjoying international protection and relevant considerations pertaining to immigration detention that are altogether key to the reinforcement of the right to seek and enjoy asylum. These principles impose clear obligations on States that they cannot simply choose to ignore during health emergencies – even global pandemics.

*This article reflects the personal views of the author and should not be attributed to the World Bank.

Introducing Duygu Çiçek

IMG-20180406-WA0039It is our great pleasure to introduce our new IntLawGrrls contributor Duygu Çiçek. Duygu Çiçek is a Turkish lawyer and currently works as a legal consultant at the Environment & International Law Practice Group in the World Bank Legal Vice-Presidency. As part of her current role, she provides legal advice and operational support to address environmental, social, and international law issues in World Bank projects. Her areas of focus include climate change, displacement, labor and work conditions, gender and non-discrimination, and human rights law in general. Previously, she worked with Advocates Abroad as a volunteer attorney and provided legal advice to persons seeking asylum in Europe. She also worked with the American Bar Association Rule of Law Initiative on rule of law and displacement-related issues, UN High Commissioner for Refugees Istanbul Field Office, and Office of the Commissioner for Human Rights at the Council of Europe primarily focusing on human rights violations occurring in member states and contributed to the recommendation reports issued by the Commissioner’s office.

She has completed a B.A. in Law from Koç University (2015). She also completed an LL.M. in Human Rights from the University of Edinburgh (2016) where she focused on international human rights law and human rights law in Europe, and an LL.M. in International and Comparative Law from the George Washington University Law School (2018) where she focused on refugee law, forced displacement, and climate change.

Heartfelt welcome Duygu!

Write On! Practising Reflexivity in International Law

This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to the Law Department of the European University Institute for a two-day Doctoral Forum on International Law as follows:

Screen Shot 2020-08-03 at 1.11.15 PM The Law Department of the European University Institute is hosting Practising Reflexivity in International Law, to be held November 23-24, 2020 at the Department of Law, Villa Salviati, in Florence, Italy with the help of the European Society of International Law. The theme is addressing the challenges international lawyers face today, including the rise of populism, growing economic inequality, climate change, and unraveling global cooperation. In addressing these challenges, the situation of international lawyers–e.g., their race, gender, or position in the field–and its influence on how they think and address these challenges has been seldom considered overtly. Building on this reflexive attitude, long productively discussed in the social sciences, this Forum invites contributors to explore practicing reflexivity in their own work and in the field of international law.

The practice of reflexivity takes the international lawyer as an object of research, examining their situation and how it influences what they do or think, and it can also extend to an examination of the field itself and the scholarly endeavour. In particular, this Forum seeks to investigate how the practice of reflexivity could uncover disciplinary routines and create possibilities for new or alternative interventions in response to the field’s most pressing challenges. Abstracts of around 500 words are due by September 13, 2020 to DFIL@eui.eu. For more information, please click here.

Read On! “The Palgrave Handbook of Critical Menstruation Studies”

Instagram GraphicThis open access handbook is the first of its kind, and provides a comprehensive and carefully curated multidisciplinary view of the state of the field of Critical Menstruation Studies, opening up new directions in research and advocacy. Through empirical research, personal narratives, practice notes, conceptual essays, OpEds, visual art and transnational dialogues, this collection responds to the question “what new lines of inquiry are possible when we center our attention on menstrual health and politics across the life course?”

Written by 134 contributors from more than 30 countries, the chapters collectively establish Critical Menstruation Studies as a potent lens that reveals, complicates, and unpacks inequalities across biological, social, cultural, and historical dimensions. This handbook is an unmatched resource for researchers, policy makers, practitioners, and activists new to and already familiar with the field as it rapidly develops and expands. Access the handbook here.