Craving Climate Carveouts

Craving Climate Carveouts

Feb 19, 2024 | HILJ-HIALSA International Arbitration Collaboration, Online Scholarship

Ariq Hatibie*

Introduction

The international system of investor-state dispute settlement (“ISDS”) is increasingly scrutinized for the challenges it poses to climate change mitigation efforts. Policies such as carbon taxes, fossil fuel bans, and nationalization are vulnerable to expropriation claims by investors, raising the costs and risks of the energy transition. I evaluate a proposed solution to make ISDS greener: the climate carveout. This treaty provision preserves regulatory capacity by stating that certain investments are not protected or that states can lawfully take specific measures based on the purpose of protecting the environment.

I argue that the literature overestimates the benefits of this reform. Even if states can include such carveouts in their international investment agreements (“IIAs”), investors possess procedural and substantive doctrinal tools to circumvent them. First, tribunals have used interpretive doctrines to hold that, while the measure is not per se illegal, states must still compensate the investor. Second, investors can exploit most-favored-nation (“MFN”) clauses to import more favorable treatment from other treaties to diminish the carveout’s effect. Finally, investors can forum shop to leverage other more favorable IIAs. The doctrinal and systemic features of ISDS combine to stymie the benefits of climate carveouts.

I. Introducing Climate Carveouts: Two Types

Climate carveouts come in two forms. First, they could exclude investments (e.g., in fossil fuels) from protection. Past examples in tobacco control include provisions that say, “[n]o claim may be brought under [this section] in respect of a tobacco control measure of a Party.” Hence, an investment-based carveout excises the investments from a tribunal’s jurisdiction ratione materiae. In contrast, a purpose-based carveout preserves a state’s right to take certain measures that protect the environment, enabling a merits-based defense. Such a provision could affirm the “right to regulate … to achieve legitimate policy objectives, such as the protection of … the environment …”

Climate carveouts have seen some success. Al-Tamimi v. Oman concerned revoking a mining company’s license for failing to get operational permits and other environmental violations. The U.S.-Oman Free Trade Agreement contained a clause the tribunal interpreted to “reserve a significant margin of discretion to themselves in the application and enforcement of their respective environmental laws.” Not only did the provision articulate the “right” to enforce environmental laws, but Article 17.2.1(a) provided that “neither party shall fail to enforce its environmental laws” (emphasis added), indicating a duty to protect the environment despite the agreement’s focus on free trade. The tribunal used this provision to interpret whether Oman had violated the treaty obligation to accord investors a minimum standard of treatment. Using Article 17.2.1 to inform its reading, the tribunal acknowledged that it must be “guided by the forceful defence of environmental regulation and protection provided in the express language of the treaty.” Al Tamimi demonstrates that inserting environmental clauses in IIAs can empower greener regulations.

II. Critiquing Climate Carveouts: An Optimistic Over-Estimation

Despite the above success, three features of the ISDS system mitigate the impact of climate carveouts: [A] interpretive clear statement rules that enshrine a duty to compensate, [B] MFN provisions that allow investors to import stronger investor protection provisions from other investment treaties, and [C] leveraging the flexibility of the global investment system to forum shop.

A. Circumventing the Carveout through Clear Statement Rules

One challenge to carveouts is articulating clear statement rules, as exemplified by Eco Oro v. Colombia. There, Colombia deprived an investor’s mining rights by declaring the relevant area an environmental zone. The Canada-Colombia IIA provided a carveout saying, “nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing … environmental measures necessary to protect human, animal or plant life and health,” and “the conservation of living or non-living exhaustible natural resources.” Although both Colombia and Canada confirmed that this carveout intended to protect environmental measures, and although the language stated that “nothing” would prevent a party from regulating to protect the environment, the tribunal nevertheless stated that “there is no provision in Article 2201(3) permitting such action to be taken without the payment of compensation.” (emphases added). The investors prevailed because the treaty failed to explicitly deny the investor compensation: states can regulate to protect the environment—they just have to pay for it. In other words, the tribunal elucidated a clear statement rule, a presumption of the duty to compensate. As commentators have noted, tribunals “are well capable of creating interpretive deadlocks by convenient or erroneous readings of relevant provisions.” The tribunal’s clear statement rule imposes negotiating costs on states. Indeed, the judgment itself will likely place similarly worded agreements in investor crosshairs, and given that such language is common in, e.g., all of Canada’s newer trade agreements, one wonders whether negotiating those carveouts was worth the trouble.

Given that international investment law, and international law generally, does not contain rules of binding precedent, investors can try their luck even if precedents like Al-Tamimi v. Oman exist. Investors will likely take the risk because of the gargantuan monetary awards available. In Eco Oro, the investors sought a USD $350 million judgment, although the tribunal postponed actual quantification for a later date.  Even if investor success is unlikely, the enormous potential reward renders the expected payoff worth it. This risk of arbitration continues to deter states from enacting environmental protections.

B. Using MFN Provisions to Import Looser Environmental Protections

Eco Oro demonstrates a circumvention method internal to the IIA. Another move is to use an MFN clause, which enables the investor to import more favorable treatment from other treaties into the one currently being applied (known as the “basic” treaty). A clause could read, “[n]either Contracting State shall subject investments in its territory … to treatment less favourable than it accords … to investments of investors of any third State.” MFN clauses are justified on the basis that investors from one country should not receive worse treatment than those of other countries. Using an MFN clause involves identifying another treaty with weaker environmental provisions and importing them to the present dispute. So far, investors have failed to use MFN to expand jurisdiction over the types of protected investments within a treaty. Hence, investment-based carveouts that remove fossil fuels from investment protection will likely not be affected. Rather, MFN clauses apply to the substantive treatment accorded to investments, which may affect carveouts that preserve the right to impose environmental regulations.

Indeed, investors have invoked MFN clauses to bypass carveouts in other subject areas. In CMS v. Argentina, the investors sought to avoid a clause providing that “[t]his Treaty shall not preclude the application … of measures necessary for …  the protection of its own essential security interests,” under Article IX of the Treaty. They argued that because other treaties do not contain a similar “essential security interests” clause, the tribunal should treat the immediate Treaty as also lacking a clause. The tribunal rejected this reasoning, but only because an absence of carveouts in other treaties does not trigger the applicability of the MFN. If a similar clause does exist but with better treatment, the tribunal was open to considering its importation.

Consider a carveout in Treaty A, modeled on CETA, that preserves “right to regulate … to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals . . . ,” including a clarification specifically protecting the withdrawal of subsidies. Treaty B contains a similar “legitimate policy objectives” provision for public health and morals but without the environment. An investor could argue that both clauses deal with the same question: what counts as a “legitimate policy objective”? The absence of “environment” in Treaty B’s clause would suggest that for some nationals, the environment is not a legitimate objective, but for the other nationals affected by Treaty A, the environment is. Arguably, investors in similar circumstances are treated differently simply by virtue of a different nationality, potentially violating the MFN principle.

MFN clauses can account for more precise variations in protection: another treaty may specify that some environmental measures (e.g., withdrawal of subsidies) are protected but not others (e.g., expropriation of fuel investments). Another treaty might emphasize the duty to compensate. When negotiating carveouts, states may have to re-negotiate MFN clauses or pay attention to their entire inventory of treaties to minimize the importation of investment-protective clauses.

C. Finding Favorable Forums

Another investor strategy is exploiting the ISDS regime’s slipperiness to shop for a forum with more favorable protections. The tobacco carveouts provide a salient example. During negotiations of multilateral agreements, civil society organizations pressed governments to include carveouts for tobacco control, such as in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. However, states still belonged to other bilateral agreements, all of which could be used to forum shop. For example, while an Australian investor in Vietnam could not exploit the multilateral treaty to take Vietnam to arbitration, a bilateral treaty could still give them a cause of action. Pendas and Mathison observe that tobacco investors could use forty other investment agreements between the states parties to keep the arbitration door open.

In addition, investors can use an IIA with another country as long as they fulfill the personal jurisdiction requirements. If the corporation has a subsidiary or co-shareholder with a different nationality, it can launch a parallel claim to get another shot at the goal. If it cannot find another IIA, it can even restructure to find a country with more favorable investment protections, such as when the investor in Pac Rim v. El Salvador changed their seat of incorporation from the Cayman Islands to the United States to avail themselves of the Central American Free Trade Agreement. In practice, the “abuse of process” doctrine limits egregious instances of this forum shopping, particularly when the company restructures immediately before a foreseeable regulatory change. However, the strategic pathways for movement make corporations, especially transnational ones, difficult to tame. Thus, investors can forum shop in three ways: moving from the multilateral to the bilateral (or vice versa), across treaties, and across jurisdictions. The suppleness of the ISDS regime mitigates the impact of climate carveouts.

Conclusion

Despite the attraction of bolstering the treaty language to defend against arbitration claims, the above features diminish the effect of climate carveouts. First, investors can persuade the tribunal to interpret the treaty text through clear statement rules, as Eco Oro v. Colombia demonstrates. Second, investors can exploit MFN provisions to import more favorable rules from other treaties. Finally, investors can shop for the ideal forum by moving from the multilateral to the bilateral plane or restructuring to take advantage of other IIAs. Even if states can renegotiate treaty provisions to buttress against doctrinal moves, systematic features of the ISDS system will continue to grant protection. If investors can slip and slide through that system, the effect of carveouts, or the cost of making them effective, is not so rosy.

*Ariq Hatibie is a 3L at Harvard Law School broadly interested in public international law, including investment law and human rights. He holds an M.Sc. in Global Governance and Diplomacy from the University of Oxford and a B.A. in Global Affairs from Yale University.

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The Butterfly Effect in Investment Arbitration: How Russia’s and Norway’s Actions Concerning Snow Crab Fishing May Open an Avenue for Foreign Investors to Bring an Action Against Spain

The Butterfly Effect in Investment Arbitration: How Russia’s and Norway’s Actions Concerning Snow Crab Fishing May Open an Avenue for Foreign Investors to Bring an Action Against Spain

Jan 29, 2024 | HILJ-HIALSA International Arbitration Collaboration, Online Scholarship

Danilo Ruggero Di Bella*

Introduction

This piece traces the possible ramifications of third-party states’ actions in the context of investment arbitration. It explains how a third state’s action may have a “butterfly effect”: the third state’s action can prompt foreign investors to initiate investment arbitrations against host states different from the third-party state that carried out the action in the first place. Although to a certain degree, this is not a new phenomenon (multiple investment arbitrations have been triggered by the E.U. Commission urging the repeal of various state aids), it is certainly a rarer occurrence outside of an international organization. Within an international organization, it is relatively easier for the institutional governing body to direct its member states to commit a breach of their international obligations. For example, in Micula v. Romania, the host state breached its obligations towards foreign investors by repealing incentives that could have constituted illegal state aid in the eyes of the E.U. Commission.

Indeed, sometimes, third-party states’ or international organizations’ actions may prompt foreign investors to initiate arbitrations against their host state for a measure that the host state took in response to the initial third-party’s action. At times, unfortunately for the host state, this measure translates into a breach of an obligation the host state owed towards its foreign investors. Hence, a sort of butterfly effect takes shape.

The critical actions that will be discussed are Russia’s characterization of snow crabs as a sedentary species and Norway’s conflicting interpretation of a multilateral treaty, the 1920 Svalbard Treaty (originally known as ‘Spitsbergen Treaty’ after the name given by the Dutch explorer Willem Barentsz to the archipelago). These actions may have triggered a chain reaction of events bearing legal implications for Spain, due to Spain’s violations of its international obligations towards its foreign investors catching snow crabs around the Svalbard archipelago based on Spanish fishing permits.

First, this piece will provide a brief overview of the snow crab industry and its origins. Second, it will discuss Russia and Norway’s controversial stance on the snow crabs. Third, it will explain the inconsistency of Norway’s isolated view of the 1920 treaty regulating the status of Svalbard. Finally, it will illustrate the potential investment arbitrations that can be filed against Spain for revoking the snow crab-catching permits for Svalbard from its foreign investors.

I. The E.U. Snow Crab Fleet

In 2012, E.U. trawlers began harvesting snow crabs, a relatively new species in Europe’s waters. This novel activity is a highly profitable business (reportedly, each snow-crab trawler yields one million euros per month on average), and arguably an environmentally friendly practice. Indeed, snow crabs are infesting Europe’s waters, since they are a non-indigenous species (p.6) migrating from the Russian coast where they were artificially introduced in the 1960s. Being an alien species prone to overbreeding, they end up harming the ecosystem if they are not regularly caught.

The European Commission has been authorizing a few member states—specifically, Spain (ANNEX IB p. 99), Estonia, Lithuania, Latvia, and Poland (ANNEX III p. 149)—to issue permits to catch snow crabs. A trawler flying the Spanish flag—the Adexe Primero—pioneered the catch of snow crabs in Europe in 2012. The Spanish vessel focused its activities in the “Loophole” area, a small portion of international waters between Norway and Russia in the Barents Sea, and the waters surrounding the Svalbard archipelago. This vessel carried out its activities on the ground of the fishing permits issued by Spain, specifically, a Northeast Atlantic Fisheries Commission (“NEAFC”) zone permit for the Loophole area and a Svalbard Zone permit for Svalbard waters.

Vessels of the contracting parties to the NEAFC can get a permit from their flag state to freely catch unregulated stocks—such as snow crabs—in international waters (like in the Loophole area). Similarly, vessels of the signatories to the 1920 Svalbard Treaty can get a permit from their respective flag States to fish around Svalbard on the same footing as Norwegians. Both of Adexe Primero’s fishing grounds proved to be so profitable that other E.U. and Norwegian vessels followed suit.

II. Crimea Sanctions and Russia’s View on Snow Crabs

Following EU sanctions on Russia for the 2014 annexation of Crimea, Russia retaliated by obstructing E.U. vessels fishing in the Barents Sea. For instance, on 16 July 2015, the Adexe Primero was seized by a Russian patrol boat while fishing in international waters in the Barents Sea (as proved by the satellite-based vessel monitoring system onboard). The seizure was prompted by the detection of fishing pots with foreign signs in Russia’s Exclusive Economic Zone (“EEZ”). The pots belonged to the Adexe Primero and to a Norwegian vessel (the Northeastern H-27-AV). It turned out that the pots had drifted on the current into Russia’s EEZ. The Spanish vessel was then released after posting a bond.

In July 2015, Russia’s retaliations built up to a declaration that defined snow crabs—usually fished by E.U. vessels in the international waters of the Loophole—as a sedentary species living on the continental shelf (p. 339). As such, the exploitation of this valuable resource should be up to the coastal states, i.e., Russia and Norway, the latter of which joined Russia’s declaration.

The Loophole in the Barents Sea is located in international waters, as Russia’s and Norway’s EEZ cannot extend further than 200 nautical miles out to the sea (the Loophole is squeezed between the two EEZs).  However, the continental shelf can extend up to 350 nautical miles as per Article 76 UNCLOS, thus engulfing the seabed underneath the Loophole. Therefore, the continental shelf below the water column in the Loophole can be subject to Russia’s and Norway’s jurisdiction, despite the water column above being on international waters. By defining the snow crab as a resource of the continental shelf (instead of a high-seas fishery resource), the coastal states (Russia and Norway) gain otherwise nonexistent jurisdiction over this precious resource and the right to exploit it exclusively, while simultaneously eroding one of the freedoms of the high seas, the freedom of fishing under Articles 87 and 116 UNCLOS.

Interestingly, the characterization of crabs as a sedentary species is not univocal and is rather arbitrary, often driven by national economic interests. Japan (a traditionally distant-water fishing country) considers crabs as a high seas fishery resource. Arguably, crabs’ ability to migrate defies their sedentary feature. Other states—mostly, coastal states (such as Canada (p.14))—hold that this crustacean is a sedentary species. It remains unclear whether crabs are sedentary or high-seas species. For example, Brazil considers lobsters sedentary, whereas the UK does not (p. 9).  Accordingly, the classification of crustaceans is often a contentious issue.

Following Russia and Norway’s joint declaration, in August 2015, the E.U. recommended that its member states suspend the permits to catch snow crabs in the Loophole. Accordingly, Spain suspended Adexe Primero’s permit to fish in the NEAFC zone. According to the accounts of the E.U. shipowners and captains involved, other E.U. member states instead disregarded the E.U.’s recommendation and allowed their trawlers to keep fishing in the Loophole. Finally, in September 2015, Spain followed the example of the other member states and lifted the suspension of Adexe Primero’s permit for the NEAFC zone. Spain then renewed Adexe Primero’s permit for 2016. However, in March 2016, Spain suspended the permit for the NEAFC zone once again and eventually stopped issuing it altogether, apparently out of deference to Russia’s stance.

III. Norway’s Breaches of International Legal Obligations

The 1920 Svalbard Treaty governs the international status of the Svalbard archipelago. Just a year earlier, in 1919, the geographer and explorer Robert Neal Rudmose-Brown described the archipelago as a no man’s land whose natural resources have been explored and exploited by a variety of states since its discovery. In the aftermath of World War I, the need to establish some sort of local authority to administer the international community living on the archipelago and to avoid the archipelago’s militarization led to the negotiations of the Svalbard Treaty.

The contracting parties to the Svalbard Treaty gave Norway sovereignty over Svalbard but allowed the joint and peaceful exploitation of the archipelago’s natural resources by a variety of nations. The Treaty accords to the nationals of each contracting state the right of economic activity on an entirely equal footing (p. 128) with Norwegian nationals, thus preserving (p.2) the terra nullius status of the region (specifically based on Articles 2, 3, 6, and 7). By virtue of this Treaty, Svalbard became the only land state territory of common use (p.IV) in modern international law.

However, over time, Norway has discriminatorily restricted the commercial access of the other signatories’ citizens based on nationality requirements. Meanwhile, Norway has disavowed the Svalbard Treaty by depriving its provisions of their original meaning: to constrain Norway’s sovereignty over the archipelago in favor of the international community’s acquired rights. Norway has also relied on the Treaty to extend unrestrained sovereignty on the waters surrounding Svalbard up to 200 nautical miles and, accordingly, to expand its maritime boundaries bordering Greenland.

Thus, Norway inconsistently interprets the geographical scope of the Treaty: on the one hand, Norway holds that the Svalbard Treaty applies only up to 12 nautical miles off the archipelago; on the other hand, Norway stretches its maritime boundaries with Greenland up to 200 nautical miles off Svalbard by relying on the same treaty notwithstanding the fact that, according to Norway’s own interpretation of the Treaty, Norway’s sovereignty over Svalbard should be constrained to 12 nautical miles around the archipelago.

Russia and the EU object to Norway’s interpretation of the Treaty (as every other contracting party does), since if it was not for the Svalbard Treaty, Norway could not set its border at 200 nautical miles off Svalbard. Hence, either the Svalbard Treaty applies up to 200 nautical miles off Svalbard and Norway retains its current maritime border with Greenland, or the Treaty applies up to 12 nautical miles and Norway’s maritime borders (as well as its territorial jurisdiction) should be downsized accordingly.

Should the territorial scope of application of the Treaty be up to 12 nautical miles off Svalbard’s baseline, the portion of water between its outer edge and Greenland’s EEZ would be considered high seas. Should Svalbard’s continental shelf stretch further than 12 nautical miles into the high seas, the Svalbard Treaty would apply to that zone anyway, since the continental shelf is a prolongation of Svalbard’s land territory.

Therefore, regardless of the geographical scope of the Svalbard Treaty (either up to 12 or 200 nautical miles), this instrument should apply to the activity of snow crab fishing around Svalbard, because such activities occur on its continental shelf. Norway indeed considered snow crabs as a resource of the continental shelf in its 2015 joint declaration with Russia. Accordingly, the nationals of all contracting parties to the Svalbard Treaty should be allowed to catch snow crabs on Svalbard’s continental shelf just as Norwegians do.

Norway’s 2015 joint declaration with Russia concerning the sedentary nature of snow crabs might have seemed beneficial at the time to gain jurisdiction over this natural resource on the continental shelf underneath the Loophole. However, the same declaration backfires with respect to Norway’s interests in Svalbard. Indeed, the declaration indirectly obligates Norway to accord equal commercial rights to foreign snow crab trawlers on Svalbard’s continental shelf which, being a prolongation of Svalbard’s land territory, is covered by the application of the Svalbard Treaty. In other words, under Norway’s own interpretation of the Svalbard Treaty, E.U. trawlers should be able to harvest snow crabs on Svalbard’s continental shelf for the same reason they cannot catch them in the Loophole area. Of course, this is an unintended consequence of Norway’s policies on the two bodies of water (the Loophole and the Svalbard waters). The common denominator of the two policies is that they are both driven by national interest: both seek to let only Norwegians exploit snow crabs.

In June 2013, the Adexe Primero began fishing in Svalbard waters thanks to a permit granted by Spain based on the Svalbard Treaty. However, following Norway’s arrest of a couple of E.U. trawlers, in January 2017, Spain suspended the permit indefinitely, despite the EU’s recommendation to disregard Norway’s prohibition to catch snow crabs around Svalbard. Spain was indeed the only E.U. member state to adopt such a suspension (unlike Estonia, Lithuania, Latvia, and Poland). Initially, Span’s suspension was meant to be only temporally. However, it became a de facto revocation of the permit, as the suspension was never lifted.

Norway’s discriminatory actions have already led to investment arbitrations concerning the catching of snow crabs in Svalbard waters. Could Norway’s flawed interpretation of the Svalbard Treaty lead to similar repercussions for other states?

IV. Are Investment Arbitrations Drifting Towards Spain?

As noted, the E.U. member states who were granted snow crab catching permits by the E.U. reacted in different ways to Russia and Norway. On one hand, Estonia, Lithuania, Latvia, and Poland stood firm on their position and kept allowing their vessels to catch snow crabs in the Loophole and around Svalbard. On the other hand, Spain had repeatedly suspended Adexe Primero’s permits and, eventually, stopped issuing them altogether out of fear of Russia and Norway. Thus, Russia’s erosion of the freedom of fishing in the high seas (by defining snow crabs as a resource of the continental shelf) and Norway’s violation of the Svalbard Treaty may have led Spain to breach in turn its international obligations towards its foreign investors.

Spain’s repeated suspensions of the snow crab catching permits and their ultimate revocation have disrupted the activity of the Adexe Primero and its shipowner, Mariscos Polar SL, a company registered in Spain for the purpose of fishing snow crabs in arctic waters and whose shareholders hold Moldovan and Russian nationalities.[1] These Russian and Moldavian investors may invoke respectively the Spain-Russia Bilateral Investment Treaty (“BIT”) and the Spain-Moldova BIT to bring an expropriation claim against Spain. Spain directly expropriated the snow crab-catching permits and indirectly expropriated the foreign investors’ company operating thanks to those permits. Furthermore, the cumulative effects of the continual suspensions of the permits—culminating with their revocation—may well amount to a creeping expropriation.

Spain’s consequential expropriation of Mariscos Polar is worsened by the fact that the actions leading to this taking were not proportional. First, there was a lack of proportionality since Spain did not provide alternative fishing grounds to avoid the total disruption of Mariscos Polar’s business.[2] Second, the absence of proportionality is highlighted by the fact that Spain was the only E.U. member state to adopt such a harsh measure. Hence, even if Spain’s drastic actions may have been taken because of Russia and Norway, their lack of proportionality and compensation does not exempt Spain from its international obligations towards its foreign investors. Importantly, Article 6 of the Spain-Russia BIT and Article 5 of the Spain-Moldova BIT cover not only direct expropriations but also “any other measures with similar effects.” Hence, the applicable BITs allow for indirect and creeping expropriation claims.

Since fisheries are governed by an E.U. Common Policy, the treatment Spain accorded to Mariscos Polar should be contrasted against the treatment that other E.U. member states in the same position as Spain accorded to enterprises operating in the same sector as Mariscos Polar. If such treatment is more favorable than the one accorded by Spain, then Spain failed to accord Mariscos Polar the most favorable treatment it could have possibly accorded. Since the other E.U. Member-States did not suspend their snow crab permits, Spain breached the most favored nation (“MFN”) clause in Article 5(2) of the Spain-Russia BIT and Article 4 of the Spain-Moldova BIT.

Further, a Russian investor bringing a claim under the Spain-Russia BIT could also rely on the MFN clause to broaden the scope of the dispute resolution clause. This way, the investor may bring fair and equitable treatment (“FET”) and full protection and security (“FPS”) claims. For example, the investor may import the more favorable treatment accorded by the Spain-Lebanon BIT, whose dispute resolution clause extends also to violations other than unlawful expropriations. Whereas the Moldovan investor would not need to invoke the MFN clause for this purpose, since the dispute resolution provision of the Spain-Moldova BIT is not limited to expropriation claims.

Spain breached the FET standard towards its foreign investors insofar as it failed to protect their legitimate expectations concerning their investment, by generating an uncertain legal framework for catching snow crabs. Notably, the investors’ legitimate expectations were also backed up by the E.U.’s recommendation to ignore Norway’s prohibition of fishing in Svalbard.

Moreover, Spain failed to accord adequate legal protection against Norway’s subsequent claims to the fishing rights that Spain granted to its investors in the first place. Spain could have protected such rights by resorting to an international arbitration against Norway based on the 1929 Spain-Norway Treaty on Conciliation, Judicial Settlement and Arbitration. Not only did Spain fail to accord appropriate legal protection to her foreign investors to ensure the normal ability of their business to function, but it also deprived the investors of the title (viz. the fishing permit) to advance a possible investment claim against Norway (by invoking the Russia-Norway BIT).

Accordingly, the foreign investors may claim from Spain compensation for the damages suffered, the restitutio in integrum of the revoked permits, and their adequate legal protection through an international legal proceeding between Spain and Norway.

Conclusion

The snow crab affair illustrates how third-state actions may have a butterfly effect on the host state in international investment law. This is especially likely where the initial actions were ill-grounded and driven purely by national interests and the host state’s response did not take into proper consideration its international obligations towards its foreign investors. Crucially, should Spain disregard the interests of its foreign investors concerning the fishing of snow crabs in Svalbard waters, Spain would implicitly waive its international rights stemming from the 1920 Svalbard Treaty. Those rights include all maritime, industrial, mining, and commercial rights over the natural resources of the Svalbard archipelago. Thus, in the future, Norway may validly rely on Spain’s acquiescence to relinquish such rights—as per article 31(3)(b) of the VCLT—to prevent Spain from benefitting of Svalbard natural resources on an equal footing.

*Danilo Ruggero Di Bella is an attorney-at-law – member of the Madrid Bar and the Canadian Institute for International Law Expertise (CIFILE) – leading the law firm Bottega DI BELLA (www.bottegadibella.com). He holds a Master in Lawyering from Alicante University and an LLM in Investment Treaty Arbitration from Uppsala University. Danilo graduated in Law from Florence University with a specialization in public international law from Radboud University Nijmegen. He can be reached at: danilo.dibella@bottegadibella.com.

[1] Author interview with owners of Mariscos Polar SL.

[2] Author interview with owners of Mariscos Polar SL.

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International Investment Law Enables the Use of Frozen Russian Assets to Compensate for War Damage in Ukraine

International Investment Law Enables the Use of Frozen Russian Assets to Compensate for War Damage in Ukraine

Nov 15, 2023 | HILJ-HIALSA International Arbitration Collaboration, Online Scholarship, Ukraine

Csongor István Nagy*

Editor’s Note: This piece is part of a special collaboration with the Harvard International Law Students Association on international arbitration.

I. Introduction

In February 2022, Russia launched a full-scale war against Ukraine. The overwhelming majority of the international community condemned this as a gross violation of international law. Although the U.N. Security Council did not adopt sanctions, several countries introduced unilateral measures freezing Russian assets. It has been argued that countries should go beyond asset freezes and use these assets for the indemnification of Ukrainian war damages. Confiscation would, however, be unprecedented and raise serious international legal concerns. While states have, with good reason, been reluctant to react to one wrongful act with another,[1] this question has given rise to intensive debate. Recently, the EU set up a working group to inquire if and how Russian assets could be used to reconstruct Ukraine.

In this paper, I argue that instead of frontal approaches involving direct seizure, “maneuver lawfare” and international investment law provide a solution. Under international law, sovereign immunity rules out confiscation both as a countermeasure and a compensatory measure responding to acta jure imperii, such as military operations. Nonetheless, sovereign immunity does not extend to commercial matters, where judgments and awards can be enforced against state assets. International investment law, notably the Russia-Ukraine BIT (“RUBIT”), “commercializes” acta jure imperii. It converts public law violations into quasi-commercial claims “immune from sovereign immunity.” Although not the norm, mass claims are not unknown in investment arbitration. This implies that a substantial part of Ukrainian war damages can be submitted to arbitration and that their incorporation into an arbitral award offers a solid legal basis for enforcement against Russian assets. Although the proposed approach promises no one-click solution and has not yet undergone baptism by fire, it is legally capable of producing substantial practical results.

II. Confiscating Foreign State Assets Under International Law

The wholesale freezing and confiscation of foreign state assets is generally prohibited under customary international law (Art 9 of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Countries in Which They Live). There are, however, exceptions, most notably countermeasures. These are illegal acts whose wrongfulness is precluded by the fact that they react to a pre-existing wrongful act (see e.g. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ¶¶ 82-87; Air Services Agreement Case (France v. United States), ¶ 83), provided they are reversible and aim to compel compliance with international law (Article 22, 49(1) and 49(3) of the 2001 Draft UN Treaty on the Responsibility of States for Internationally Wrongful Acts (“TRSIWA”). Although generally countermeasures can be imposed only by injured countries, this limitation does not apply to the violation of erga omnes obligations. “Any State (. . .) is entitled to invoke the responsibility of another State (…) if (…) the obligation breached is owed to the international community as a whole” (Article 48(1) of TRSIWA). Russian aggression in Ukraine clearly violates the erga omnes prohibition on use-of-force in international relations (Article 2(4) of the U.N. Charter) and, hence, authorizes countermeasures. However, countermeasures are expected to preserve assets so they can be returned once their legal basis ceases (the perpetrator terminates the wrongful act and provides reparations (Article 48(3) of TRSIWA) or the countermeasure is revoked. This requirement implies that countermeasures may not go beyond asset-freezing and that the assets of the foreign state cannot be confiscated via countermeasures (Bederman, p. 824; Elegab, p. 196; Zoller, p. 15).

The confiscation of frozen Russian assets may also be described as a garnishment assisting the enforcement of Ukrainian international law-based claims to compensation. Undoubtedly, Russia is “under an obligation to make full reparation for the injury caused by the internationally wrongful act” (Article 31 of TRSIWA). Simultaneously, notwithstanding this substantive obligation, Russia has sovereign immunity in these matters. “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State” (Article 5 of 2004 UN Convention on Jurisdictional Immunities of States and Their Property (“CJISP”)). Although exceptions apply, the war is an actum jure imperii and all war-related claims may come under the general rule of sovereign immunity (Jurisdictional Immunities of the State (Germany v. Italy), ¶¶ 60, 77, 92-97, 134-35, 140-42).

While the confiscation of frozen Russian assets, both as countermeasure and garnishment, raises serious international law concerns, commercial matters (Article 10 of CJISP), as well as state consent (Article 7(1) of CJISP), are exceptions to sovereign immunity. This applies a fortiori to arbitration, which is, by definition, less intrusive in state sovereignty than proceedings by the courts of another sovereign. Section II demonstrates how investor-state arbitration embedded in BITs enables the use of this exception to claim compensation for war damages.

III. Investment Awards Create a Legal Title for Enforcement Against Frozen Russian Assets

International investment law, and specifically the RUBIT, converts claims emerging from acta jure imperii into private law, providing a basis of arbitral proceedings that rest on the consent of Russia. This makes the resulting arbitral award immune from sovereign immunity.

Investment arbitration is the only mechanism that authorizes compensatory claims by individuals for breaches of public international law.[2] While claims emerging from acta jure imperii are suppressed by sovereign immunity, investment arbitral awards are not. BITs have a dual nature and, by blending public international law with private law, they vest claims emerging from public law violations with a commercial law character. They convert public law disputes into private law controversies with a quasi-commercial character, where states lack immunity.

This commercial character manifests itself in both scholarship and practice (Moses, pp. 243-45; Sweet & Grisel, pp. 72-73). Some even argue that investment arbitration is “international commercial arbitration.” (Gaillard & Savage, pp. 42-43). This thinking is also reflected in a wealth of case law that applies the New York Convention’s rules on recognition and enforcement to investment awards (Van Harten, p. 378). U.S. courts take a similar approach (Argentina v. BG Group, pp. 117-19; Chevron v. Ecuador, pp. 207-08; Gold Reserve v. Venezuela; Crystallex v. Venezuela).

International law limitations apply to “non-commercial” assets, such as military or central bank holdings, which are immune from enforcement even if the award or judgement was rendered in a commercial matter (Article 21 of CJISP). Nonetheless, sovereign direct investments, airplanes, ships and the assets of persons attributable to the state can, however, be used to satisfy enforcement creditors.

IV. Do War Damages Fall Under RUBIT’s Scope?

The case law on BITs’ application to illegally occupied territories is scant. It is limited to a few cases concerning Crimea, where arbitral tribunals held that effective control is sufficient for the RUBIT to apply ratione loci (Ukrnafta; Stabil; Everest; Belbek; Privatbank and Finilon; Naftogaz; Oschadbank; Lugzor). The issue has attracted more attention and produced some scholarship on BITs’ application in times of war (Zrilic; Schatz; Fach Gómez; Ryk-Lakhman; Ackermann & Wuschka; Ackermann; Schreuer) and civil disorder (Greenman), but this has predominantly focused on interpretation of substantive provisions, such as rules on expropriation and treatment. Interpretive questions concerning BITs’ scope and their application to illegally occupied territories have remained largely unsettled.[3]

BITs apply to investments by citizens of one Contracting Party situated on the territory of another. They provide for protection against direct and indirect expropriation without compensation and set out various treatment standards for foreign investors. Translating this to the current question, the RUBIT applies to investments of Ukrainian nationals and legal entities within Russian territory. Article 12 of the RUBIT provides for its application to “investments carried out (…) as of January 1, 1992.” Accordingly, the RUBIT may apply to war damages caused by Russia in Ukraine, if the damages are done to an investment by a Ukrainian national made after January 1, 1992, within territory that could be considered Russian under the RUBIT.

Although the application of a BIT to seek compensation for war damages is uncharted territory, the real question of first impression is clearly the construction of territorial scope under the RUBIT and whether the territories of Ukraine illegally occupied or claimed by Russia can be regarded as Russian for purposes of the RUBIT. The other elements of scope have relatively settled meaning in international arbitral and state practice (Brown) and interpretation of these elements in the context of war damages raises no unprecedented issues.

Article 1(4) of the RUBIT defines the treaty’s territorial scope as “the territory of the Russian Federation or the territory of the Ukraine and also their respective exclusive economic zone and the continental shelf as defined in conformity with the international law.” Areas that legally belong to and are effectively controlled by a state are unquestionably that state’s territory. Nonetheless, what if the area legally belongs to but is not effectively controlled by a state or is effectively controlled by but does not legally belong to the state? Does it matter if a state frivolously claims the area it controls? What if a state makes continuous efforts to occupy an area it frivolously claims but momentarily does not control?

The possible scenarios can be presented in a three-dimensional coordinate system, whose axes are “legal title,” “effective control” (occupation) and “unilateral claim.” An additional question is if an area can, under the RUBIT, simultaneously belong to both Russia and Ukraine. Can Crimea qualify as Ukrainian territory via legal title and as the territory of Russia via effective control?

Based on the above factors, the following matrix emerges:

  1. Ukrainian territory controlled by Ukraine and neither claimed, nor controlled, by Russia;
  2. Ukrainian territory controlled by Ukraine and claimed by Russia (unoccupied parts of the Luhansk, Donetsk, Kherson, and Zaporizhzhia oblasts);
  3. Line of contact on Ukrainian territory claimed by Russia (the line of contact in the above four oblasts);
  4. Line of contact on Ukrainian territory not claimed by Russia (the line of contact during the offensive towards Kyiv);
  5. Ukrainian territory controlled but not claimed by Russia (e.g. the areas captured during the offensive towards Kyiv);
  6. Ukrainian territory controlled and claimed by Russia (e.g. Crimea, occupied parts of the aforementioned oblasts).

The starting point of the interpretation of the term “territory” is that this is strictly a question of treaty interpretation and not one of state territory and international recognition. This is how the arbitral practice approaches the applicability of the RUBIT.[4] Put differently, it is a contractual dispute, not a title dispute. The relevant question is how to interpret the term “territory” in the application of the RUBIT and not whether a given region legally forms part of a country or not (although the two issues certainly overlap, and one may argue that they should coincide). This implies that the RUBIT’s provisions on territorial scope must be construed in accordance with the 1969 Vienna Convention on the Law of Treaties (“VCLT”), customary international law, and arbitral and state practice.

Arbitral and state practice confirms that effective control constitutes territory in the application of BITs. Russia has been the defendant of several arbitral proceedings under the RUBIT. In these cases, listed above, the tribunals consistently concluded that, due to Russia’s effective control, its territory includes Crimea, notwithstanding its occupation’s illegality. These tribunals held that the term “territory” must be interpreted broadly and that de facto territory is the term’s “ordinary” meaning, detaching it from questions of legal title.

The most difficult territorial question is the status of illegally claimed but uncontrolled areas. On September 30, 2022, Russia annexed four Ukrainian provinces (Luhansk, Donetsk, Kherson, and Zaporizhzhia), without controlling substantial parts of each.

Arbitral practice concerning Crimea suggests that the territorial scope of BITs is not a question of control but of international obligations. Effective control is, however, not the only case where a state assumes international obligations over a territory. Although arbitral tribunals have applied the RUBIT based on Russia’s effective control over the area, their reasoning suggests that Russia’s unilateral and unlawful annexation played an important role in this assessment and that its unilateral illegal claim was a crucial consideration in addition to occupation. In Stabil v. Russia, the tribunal noted (¶ 190) that “Russia [had] assumed obligations over Ukrainian investment in Crimea.” It found (¶ 175) that the RUBIT “became opposable to Russia (. . .) upon Russia’s incorporation of Crimea in its territory no later than 21 March 2014 when Russia ratified the Incorporation Treaty and passed the Crimean Integration Law which formally incorporated Crimea as a subject of the Russian Federation.” In Belbek, the tribunal held (¶ 175) that “the term ‘territory’ (…) has a wider meaning capable of encompassing territory for which a State has assumed the responsibility for international relations.” These statements suggest that a state’s unilateral position regarding its own territory may have an important role in assessing this question.

The question of “territory” may also be grasped using the interlinked concepts of good faith, acquiescence and estoppel. The 1969 VCLT does not rule out the use of the principles of interpretation based on customary international law (Linderfalk; Fitzmaurice & Merkouris; Lo; Dörr & Schmalenbach).

By pronouncing the incorporation of the occupied oblasts, irrespective of whether it has gained effective control over their entire territory or not, Russia assumed legal responsibilities related to these territories. This implies that it claimed the right to represent these areas internationally, made their inhabitants Russian citizens, and made Russian law applicable. The question is whether Russia also assumed duties under the RUBIT in relation to these areas and whether Russia can contradict itself and argue that the areas which it declared to be Russian are, in fact, not its territory? Some argue, in the context of Crimea, that, due to the principle of estoppel, the unilateral annexation prevents Russia from raising the objection that the annexed area is not part of its territory.

Good faith is an elusive legal principle. It serves as the root of both estoppel (Crawford, p. 420) and acquiescence (Reinhold, p. 53-56). In international investment law, estoppel can be understood as responding to inconsistent behaviour (Grenada Private Power, ¶ 208; Karkey Karadeniz v. Pakistan, ¶ 628; Border Timbers v. Zimbabwe, ¶ 411) and can have a narrower and a broader meaning (MacGibbon; Tran Thang Long; Kulick). Under the narrow definition, the principle of estoppel becomes relevant if the other party relied on a  representation to its detriment (Amco v. Indonesia, ¶¶ 42-49). According to the broad definition, it suffices if the state acts contrary to its own facts. Although the former is the prevailing position (Besserglik, ¶¶ 423-424; Bolivia v. Chile (Access to the Pacific Ocean), ¶ 158; Bay of Bengal, ¶ 124; Province of East Kalimantan v. Kaltim Prima Coal, ¶¶ 211-12; Duke Energy, ¶ 231; Gruslin v. Malaysia (II), ¶ 20.2; Pope & Talbot v. Canada, ¶ 111), the broader approach also appears in arbitral practice (Rumeli v. Kazakhstan, ¶ 335; Dissenting Opinion of Mr. Bernardo M. Cremades in Fraport v. Philippines (I), ¶ 28), turning into another recognized principle of international law: tacit acceptance. According to the 2006 U.N. Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, “[d]eclarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith.” It would be reasonable to view the unilateral annexation of Ukrainian territory as implying the assumption of international legal obligations related to sovereignty over these areas, including the protection of BITs. Consequently, whether this implied assumption estops Russia from reneging on international obligations it assumed or if this amounts to acquiescence to these international obligations is a question of semantics.

Arbitral tribunals have also noted that it would violate good faith if Russia could evade the RUBIT notwithstanding its annexation. In Stabil, the tribunal noted, while discussing the principle of good faith, that “Russia cannot at the same time claim that Crimea forms part of its territory and deny the application of a Treaty that it has concluded to protect investments made on its territory, without incurring an inconsistency contrary to good faith and (. . .)  consistency” (¶ 170). “Russia (…) has clearly manifested its will to consider Crimea as part of its territory, whilst taking no action to terminate or suspend the Treaty” (¶ 172). “[A] good faith interpretation of the Treaty mandates that Russia’s declaration that Crimea is part of its territory cannot remain without legal consequence to Russia’s Treaty obligations vis-à-vis Ukrainian investors in Crimea” (¶ 174).

The tribunal reached a similar conclusion in Belbek. It found (¶ 265) that “a conclusion that the Treaty no longer applies to conduct occurring in the Crimean Peninsula would . . . relieve the Contracting Parties of their obligation to perform the Treaty in good faith, contrary to the cardinal principle of pacta sunt servanda. It would be to create a legal void . . . that was never contemplated and should not be countenanced.”

V. Mass Claims and Investment Arbitration

Investment arbitration is thought of as being individualistic. Indeed, most investment disputes emerge from individual investor claims. Nonetheless, mass claims are absolutely not unprecedented. They were first recognized in three Argentine bondholder cases (Abaclat v Argentina; Ambiente Ufficio v. Argentina; Alemanni v. Argentina) and subsequently confirmed in Adamakopoulos v. Cyprus. In Abaclat, 180,000 Italian bondholders sued Argentina before the ICSID (the number was later reduced to 60,000). In Ambiente Ufficio, proceedings were launched by 119 claimants. In Alemanni, the claimants were 183 Italian individuals and legal entities. In Adamakopoulos, 956 Greek and Luxembourgish claimants, holders of certain financial instruments and bank deposits, sued Cyprus for financial restructuring measures adopted after the 2009 financial crisis.

These cases confirmed that the collective nature of mass claims is not a hurdle to arbitral proceedings. Although the ICSID Convention and Arbitration Rules are silent on this issue, there is nothing preventing arbitral tribunals from accommodating the special needs of mass actions with applicable rules of procedure, especially because Article 44 of the ICSID Convention authorizes tribunals to decide unsettled procedural questions (Ambiente, ¶ 146).  Arbitral practice highlights two important propositions. First, if a tribunal has jurisdiction over individual claims, it may also have jurisdiction over their aggregation. There is no requirement of specific consent: states are not required to specifically consent to jurisdiction over mass claims, as long as they consented to jurisdiction over individual claims (Abaclat, ¶ 490; Ambiente, ¶ 146; Alemanni, ¶¶ 284, 286-87; Adamakopoulos, ¶¶ 269-270). Second, there needs to be a substantial link between the aggregated claims (Abaclat, ¶¶ 540-41; Alemanni, ¶¶ 287-88, 292; Adamakopoulos, ¶¶ 210-21). Third, although mass claims may raise issues of manageability, and unmanageable aggregations may be inadmissible, tribunals usually find mass claims manageable (Adamakopoulos, ¶¶ 224, 259).

For the purposes of the present analysis, it is sufficient to conclude that mass claims are admissible and feasible and that investment tribunals have a practice of entertaining them. Ukrainian war victims can meet the requirements of interconnectedness and manageability by creating “pockets” of claims and submitting them in separate collective proceedings. For instance, residents expelled from a specific occupied area can claim compensation for lost property. Similarly, the residents of a town damaged by shelling could jointly claim compensation for the indirect expropriation of their homes. They may establish an entity (a company or association) and assign their claims to this entity or establish a joinder of parties and sue jointly.

The above matters were entertained by ICSID tribunals, while the RUBIT, in investor-state arbitration matters, stipulates the jurisdiction of the Arbitration Institute of the Chamber of Commerce in Stockholm or ad-hoc arbitration under UNCITRAL rules. This is an irrelevant distinction. Neither the ICSID Convention nor ICSID Arbitration Rules, address mass claims and arbitral tribunals have dealt with them under this “regulatory silence.” There is no reason to doubt that the same approach could be adapted to the rules of the Stockholm Arbitration Institute or UNCITRAL.

Conclusion

International investment law is not susceptible to providing a quick, comprehensive vehicle to use frozen Russian assets to compensate Ukrainian victims. Instead, it can be used mainly to claim compensation for damages to tangible and intangible property, excluding personal injury, pain and suffering, and death. Nonetheless, investment arbitration could be a powerful tool that opens a path to remuneration. BITs are not a vehicle of compensating war damages but a mechanism for protecting foreign investments. Simultaneously, the existence of war crimes does not rule out or even limit the application of BITs, which partially overlap with compensation for war damages.  This overlap can be used to achieve compensation.

The magic of international investment law can turn immune sovereign acts into non-immune commercial matters. Once the magic of an arbitral award occurs, the claim becomes enforceable against frozen Russian assets, which are, under international law, otherwise untouchable. To accomplish this, victims need to walk an arduous path to turn their claims into an arbitral award. The proposed enforcement strategy is a jig-saw puzzle made up of myriads of pockets of congenial claims. However, a meticulously constructed jig-saw puzzle still provides a fuller picture.

*Csongor István Nagy is a professor of law at the University of Szeged and a research professor at the Center for Social Sciences of the Hungarian Research Network. He is a recurrent visiting professor at the Central European University (Budapest/New York/Vienna) and the Sapientia University of Transylvania (Romania), and an associate member at the Center for Private International Law at the University of Aberdeen, Scotland. Currently, he is a CICL visiting fellow at the University of Michigan.

[1] An exception is Canada, which opened the way to the confiscation (forfeiture) of frozen Russian assets and the use of the proceeds for the reconstruction of Ukraine, the restoration of international peace and security and the compensation of victims. Sections 5.4 and 5.6 of 1992 Special Economic Measures Act. The provision on confiscation was introduced by Section 439 of the 2022 Budget Implementation Act.

[2] An exception is the European Convention on Human Rights, which, however, does not enable large-scale claims. Furthermore, Russia withdrew from the Convention as from 16 September 2022. The European Court of Human Rights remains, however, competent to entertain cases concerning actions (or omissions) that occurred up until this date.

[3] For an exception, see e.g. Mayorga.

[4] See also Happ & Wuschka. Ackermann, p. 80. For a criticism of the approach of the arbitral tribunals, see Dumberry, Krumbiegel.

Cover image credit

Finding Hope for the Hopeless: Detention, Statelessness and International Criminal Law

Finding Hope for the Hopeless: Detention, Statelessness and International Criminal Law

Jun 18, 2023 | Content, Online Features, Online Scholarship, The Impact of International Law on Refugees and Migration

Kushagr Bakshi*

In August 2019, as directed by the Supreme Court,[1] the Government of India published its National Register of Citizens for the state of Assam.[2] In one fell swoop, around 1.9 million people, many of whom had generational roots in Assam were declared foreign.[3] Given the migration arising from the Bangladesh Liberation War of 1971 and notoriously porous borders between India and Bangladesh,[4] they were presumed to be of Bangladeshi origin. However, Bangladesh refused to acknowledge them as citizens, thereby ensuring that, these people, declared ‘foreign’, were also made stateless.[5]

These individuals were then given a one-hundred-and-twenty-day period to file challenges or appeals to this register at tribunals set up specially for this purpose, the Foreigner Tribunals.[6] In the meantime, the central government passed the Citizenship Amendment Act, 2019,[7] declaring all individuals of specific religious identities who migrated into India from specific neighboring countries prior to 2014 to be residents of India, irrespective of their immigration status and simplifying their route to citizenship.[8] Therefore, all individuals who had been excluded from the register but belonged to any of these religions were exempt from pleading their cases and made citizens. Perhaps unsurprisingly, a substantial chunk of the people not included, and therefore still ‘stateless’, are Muslims. Foreseeing (causing) the precarious situation of the ‘foreigners’ who lost the appeal at the Foreigners Tribunals, the state considered its options, namely deportation, detention or the presence of foreign inhabitants. With deportation being unviable (for where would you deport stateless people to?) and since these laws stigmatize the continued presence of ‘foreign inhabitants’,[9] the state started construction on separate detention centers. Now while India may have renamed these centers for delicate sensibilities,[10] the central government has admitted that as of 2020, there were six operational centers in Assam with over three thousand individuals imprisoned, many having been imprisoned for more than three years.[11]

Article 15 of the Universal Declaration of Human Rights prohibits the arbitrary denial of nationality.[12] Further, The Refugee Convention of 1951 prevents member states from detaining, expelling or returning immigrants even if they have entered sans permission.[13] However, India is not a party to the Convention and there are limited enforcement actions under the Declaration.[14] Therefore, this paper proposes a novel approach, that is to investigate whether the imprisonment of people, declared foreign, can be prosecuted under international criminal law as a crime against humanity. We begin by examining the development of the concept of crimes against humanity in international criminal law. Then we investigate the situation of these imprisoned people to determine whether the actions of the Indian government qualify as a crime against humanity. Finally, we conclude by considering the International Criminal Court as a possible venue of recourse, the jurisdictional challenges involved, and the expressive value that a shift to an international criminal law lens might serve.

I. From War to Peace: The Development of Crimes Against Humanity

The classical Westphalian approach to international criminal law favours a conception of criminal justice as a crucial building block of the collective security regime, which is to say that the purpose of international criminal law is the prevention and prosecution of war crimes.[15] Consider for instance that the first reference to crimes against humanity,[16] can be found in a declaration issued by France to Turkey during World War I.[17] The First World War also led to attempts to set up a tribunal to prosecute ‘crimes against humanity’, which was halted by a Memorandum of Reservations submitted by the United State of America.[18] It was the horrors of the Holocaust during the Second World War which led to the codification of standards and definitions of crimes against humanity.[19] The London Charter of the International Military Tribunal first defined crimes against humanity,[20] and Allied laws established in Germany after occupation included imprisonment within the definition of crimes against humanity.[21] Given the obvious context of concentration camps, the Allies never found it necessary to include any detailed definition of imprisonment. Further development of the jurisprudence regarding imprisonment as a crime against humanity has mostly come from ad hoc international tribunals set up to adjudicate conflict situations.

The statutes for the ad hoc international criminal tribunals set up to adjudicate the atrocities in Yugoslavia and Rwanda recognized imprisonment as a crime against humanity.[22] The statute for the International Criminal Tribunal for Rwanda offered a qualified definition, where imprisonment would only constitute a crime against humanity when committed against a civilian population on the grounds of a shared group identity such as religion, nationality, ethnicity et al. The judgement of the International Criminal Tribunal for the former Yugoslavia in the Kordic and Cerkez case helped further illuminate the key constitutive elements of the definition.[23] Finding the defendants guilty, the Trial Chamber held that Bosnian Muslims had been systematically subjected to arbitrary imprisonment without justification. In addition to emphasizing the group identity of the victims, the Chamber’s decision highlights the lack of due process leading to the imprisonment as being a constitutive element in defining imprisonment as a crime against humanity.

This test for defining imprisonment was further elaborated upon by the Cambodian Tribunal. Set up as a hybrid tribunal under an international agreement, having a broad legal basis including Cambodian penal law, international humanitarian law and custom as well as the conventions entered into by Cambodia,[24] the trial chamber adopted a principled test for deciding when imprisonment becomes a crime against humanity.[25] The three prongs of the test enumerated by the court were: (i) a legal basis to justify the imprisonment which must be consistent with international law; (ii) the legal basis must continue to exist for the entire duration of imprisonment; and (iii) knowledge or intent of the perpetrator. Here, the court distanced itself away from the requirement of a group identity for those who were imprisoned. Further, recognizing how domestic legal systems often provide a formal guarantee of due process, the court added a substantive due process norm, requiring the domestic process of law to be compliant with international standards. Finally, stressing the gravity of crimes against humanity, the court upheld a mens rea standard, evidenced by intent of systematic or widespread practices, as required by customary international law.[26]

As of late, the focus of contemporary international criminal law has shifted from war crimes to ‘atrocity crimes’.[27] Philosophically considered, this evolution is linked to the changing notion of international peace and security as justice, which is to say that the modern justice-oriented peace and security ethos has resulted in a shift from the interstate dimension of crimes to look at individual human rights and harm.[28] The shift from humanitarian law towards the protection of human rights outside of interstate conflict,[29] does not however mean that the statutes and principles adopted previously have to be viewed in a confined manner or abandoned.[30] In fact, international bodies and scholars now look at codified war statutes and the human rights regime, for an amalgamated principled standard to apply to current situations. The key declarations and covenants of the human rights regime provide these broader principled notions, specifically regarding the liberty of people and they have been interpreted and applied by various international bodies in a manner consistent with the principles developed in the above cases.[31] The Human Rights Council adopted a comment which read the liberty guarantee of Article 9 of the 1966 International Covenant on Civil and Political Rights, as applicable to all deprivations of liberty, including cases of immigration control, emphasizing a notion of court protected substantive due process as a fundamental component of that right.[32] The U.N. General Assembly, in resolutions on religious tolerance[33] and protection of human rights and fundamental freedoms,[34] voiced opposition to detention outside the ambit of the law and urged States to respect international legal standards, including human rights and humanitarian law. Finally, the Rome Statute also recognizes imprisonment and other forms of severe deprivation of physical liberty as a crime against humanity.[35] The elements of crimes addendum, adopted at Kampala, lists criteria which draws substantially from the human rights framework.[36] Thus, international criminal law, removed from the specter of armed conflict, has developed an understanding of imprisonment as a crime against humanity which is not tied to group identity or particular standard of atrocity. The legal standard that can be distilled from a composite understanding of the decisions and principles above is: (i) Whether the imprisonment is in accordance with due process of law, where any such domestic law must comply with the standards of international human rights law (including affording the opportunity of adequate legal recourse to the prisoner); and (ii) the intent on the part of perpetrator, demonstrable by showing that the acts follow a systematic practice.

II. Between Scylla and Charybdis: Detention and Statelessness in India

Detailing the history of migration into Assam and understanding the various motivations undergirding the actions of those who oppose the settlement of migrants is well beyond the scope of this article.[37] Suffice it to say that the sociological notion of closure[38] vis-à-vis retaining a particular ethnic and religious composition of the polity coupled with the notion of economic protectionism[39] are insidious factors driving the opposition to migrants. But it is crucial to understand the legal framework through which this opposition is expressed, that is the National Register of Citizens and the Foreigner Tribunals.

During independence and partition in 1947, Assam saw a huge surge of migrants from Bangladesh (then East Pakistan) into India which was religiously driven. This migration led to the establishment of the National Register of Citizens in 1951, specifically to map the migration into the state of Assam.[40] The regularization of these immigrants was governed by the Foreigners Act, 1946 and special administrative tribunals (Foreigners Tribunals) were created under this Act to aid the process of regularization.[41] The aim was for the register and the tribunals to regularize the immigrants to enable them to participate in the transformative project of the Indian Constitution. However, in 1971 with the war in Bangladesh, a second wave of immigration began. Unlike 1947, there was fierce opposition to these immigrants with the local political parties of Assam organizing protests and demonstrations which resulted in waves of violence and what is now called the Nellie massacre.[42] The crucial difference, religion. While the immigrants in 1947 had mostly been Hindu’s escaping into India to avoid the sectarian violence of partition, the immigrants of 1971 were Muslim, albeit they too were escaping into India for fear of violence engulfing Bangladesh.[43] The protests and violence finally stopped with the Assam Accords and the setting up of new tribunals, which unlike the Foreigner Tribunals were intended to identify illegal immigrants for the purpose of deportation.[44] However, in 2005, the Supreme Court of India held the act setting up these new tribunals to be unconstitutional thereby shifting the burden back to the Foreigner Tribunals.[45] This was followed by the process described initially, namely that of updating the Register, appeals at the Foreigner Tribunals, followed by imprisoning those excluded.[46]

The process of updating the Register itself was filled with irregularities which eventually led to the exclusion of individuals who had enjoyed the full privileges and immunities of citizenship such as, serving in the armed forces and even being elected to the state legislative assembly.[47] However, such irregularities would be under the ambit of refugee law as this process leads to statelessness and refugee status. Instead, in this article I intend to focus on the functioning of foreigner tribunals and the imprisonment that follows. As established in the previous section, for any imprisonment to qualify as a crime against humanity, two crucial elements ought to be fulfilled, namely, that the imprisonment be without due process of law and that the perpetrator show intent through systematic practice.

A. The Due Process of Law

The due process standard has evolved considerably in international law. The ICCPR and UDHR lay down the standard for due process which includes, a fair public hearing and an independent and impartial tribunal which determines the rights and obligations of the accused and any criminal charges against the accused.[48] Additional international instruments,[49] resolutions[50] and decisions of international tribunals have led to an interpretation of the due process requirements which emphasize time given for defence,[51] fairness to both parties[52] and the right to appeal.[53] The customarily accepted definition of the due process of law, consists of two components: (a) the right to a fair trial which includes a determination of the quality of administration of justice based on the principles of independence, impartiality and competence; a determination of the quality of protection of rights of the parties based on the principles of a fair hearing, the equality of arms,[54] assumption of innocence and public hearings, and finally, the efficiency of administration based on completion of hearings within reasonable time; and (b) the right to an effective remedy, including the effectiveness of administration of justice, a qualitative determination of the standard of the remedy which includes appeals processes and scope of appeals and finally, the supervision afforded to ensure no miscarriage of justice. This international due process requirement has to be read in conjunction with the domestic standard. Indian constitutional jurisprudence lays down a three-pronged approach for evaluating the due process of law in cases of detention, including a test of reasonableness, substantive notions of fairness in the procedure and a balancing exercise.[55]

In this respect, the foreigner tribunals display a fundamental flaw, namely shifting the burden of proving innocence. Substantive notions of due process and a fair trial require that individuals be presumed innocent until proven guilty.[56] While the Foreigners Tribunals are not adjudicating crimes per se, the method of punishment, that is imprisonment, is usually a criminal consequence. Therefore, the process of imprisonment and shifting the burden upon individuals to prove their citizenship (innocence) is a violation of this fundamental tenet.[57] The second major due process violation in Foreigners Tribunals arises from the method of appointment of the judges. The Central Government is given executive fiat when it comes to appointment of the judges.[58] While government notifications prescribe certain qualifications for the prospective judges, the final appointment orders show that only two of the appointees hold the prescribed qualifications.[59] Additionally, in 2017, upon an evaluation of the tenure of the appointed individuals, the government declined to renew the contracts of nineteen appointees. An evaluation of the renewals shows that judges who, on an average declared individuals to be foreigners in less than ten percent of their disposed cases were deemed to perform in an unsatisfactory manner, and thus terminated.[60]  Domestic and international legal jurisprudence on due process has highlighted the importance of an independent judiciary.[61] The role of the executive then, in the composition of these quasi-judicial tribunals and the chilling effect of non-renewal of contracts meant as an inducement towards particular types of verdicts ensures that the trials are not impartial and therefore not following the due process standard.

Further, the tribunals are allowed discretion to determine the procedural rules which govern their functioning.[62] The courts have also held that these tribunals, being quasi-judicial in nature are not even required to apply the standards prescribed for other civil courts in India.[63] Additionally, the common law principle of res judicata, intended to protect an individual from double jeopardy is not applicable to decisions made by the Foreigner Tribunals.[64] Finally, due to the discretion afforded, different tribunals have adopted different procedural codes which deny litigants any chance of equality or predictability in their trials. The combined effect of these procedural lapses is immense. As per the central government itself, the tribunals have issued ex parte orders in around sixty-four thousand cases, rendering people stateless without giving them a chance to be heard.[65] The differing evidentiary standards adopted have also had a particularly discriminatory gendered impact with many women and children not being able to produce the evidence required to prove citizenship.[66]

Finally, an important element of the due process standard is the right to appeal. In context of citizenship proceedings, states are obligated to ensure that adequate substantive and procedural safeguards guaranteeing judicial review exist.[67] Unlike the standard court system in India, Foreigner Tribunals exercise original jurisdiction in matters of nationality due to which the only appeal process available is to High Courts or the Supreme Court.[68] However, the appellate courts have themselves severely limited their scope of review. The courts have deemed fact finding errors beyond the scope of their jurisdiction, limiting review only to cases of jurisdictional error or facial violations of justice.[69] Further, the courts have also given the executive wide fiat by upholding their power to summarily inquire into the citizenship of any person, without following a due process standard in the investigation.[70] On two fronts then, the limited forums of appeal and the limited standards of review, the courts in India have failed to uphold a substantive right of appeal or remedy.[71]

B. Systematic Intent of State

Recently, scholars have noticed the global rise of detention as a method of preventing immigration.[72] For some time now, Australia has been transferring ‘illegal’ immigrants to offshore detention centres in the Nauru and the Manus islands and detaining them there in inhuman conditions. Taking note of the rising incidents, Andrew Wilkie, an independent member of the Australian Parliament, wrote to the Office of the Prosecutor of the International Criminal Court alleging that by imprisoning these individuals the Australian Government had been committing a ‘crime against humanity’.[73] In their response, the Office of the Prosecutor found substantial evidence to indicate that the nature of the imprisonment satisfied the contextual requirements of the definition of crimes against humanity in the Rome Statute. However, the office could not establish concerted state action or evidence of systematic intent and hence declined to prosecute.[74] The key distinction the office noted was that while the policy of imprisonment was aimed at immigration detention, the elements of cruel, inhuman and degrading treatment were not a specific aim of this policy.

This standard that the office imposed is well outside the confines of international law. For decades, comparative and international jurisprudence has found that if the effects of a policy are discriminatory and inhuman, the state is responsible irrespective of whether that was a direct intent or not.[75] But even if we are to hold to the Prosecutor’s standard, the detention camps in Assam fit the bill. Essentially there are two elements which evidence the systematic intent. First, the denial of citizenship, combined with the rhetoric of ‘us’ versus ‘them’ is utilized to dehumanize the ‘foreigners’ and then legal norms and detention practices are utilized to impose indefinite imprisonment upon the ‘foreigners’. The specific construction and legal framework regulating these camps displays the systematic intent of the government to indefinitely detain people. Consider also the conditions of the camps which show the cruel, inhuman and degrading treatment that the ‘foreigners’ are subjected to. Detainees are neither provided with beds nor pillows. Medical facilities available are inadequate and the food is barely edible. Only family members are allowed to visit and the detainees are not allowed to leave, even in case of a death in the family.[76] All of this has led to various reports of detainees suffering from mental health issues,[77] physical sicknesses[78] and very often death.[79] It is therefore evident that the cruel, inhuman and degrading treatment meted out to the ‘foreigners’ is in fact what the state intends and has ensured such treatment through systematic design.[80]

III. Coda: Jurisdiction and the International Criminal Court

While I have argued above that the standards of international criminal jurisprudence have evolved to include imprisonment as a crime against humanity, I suspect opposition to this notion derives from the rhetoric surrounding crimes against humanity as radically evil acts.[81] Instead, borrowing from Hannah Arendt, I believe that acts of banal evil do lead to the infliction of terrible violence.[82] Therefore I have made a concerted effort to not highlight stories of pain and suffering in the narrative above, as it is important to realise how seemingly harmless laws and bureaucratic actions can lead to horrific situations. From the analysis above, it should be evident that the functioning of Foreigner Tribunals and the subsequent imprisonment of ‘foreigners’ is a crime against humanity.[83] Further, given that the situation does not entail the prevention of entry but rather active state acts intended to expel settled families and peoples, it’s important to evaluate what recourse, if any, the International Criminal Court can provide.

India is not a State Party to the Rome Statute and is unlikely to accept jurisdiction of the court for this matter.[84] While Bangladesh is a State Party to the Statute, the individuals who are incarcerated are ‘stateless’ under international law and if Bangladesh were to claim them to be Bangladeshi nationals for the purposes of filing a referral or granting the Court jurisdiction, they would be obligated under international refugee law to accept the individuals who would undoubtedly be deported by the Indian state. Further, any Bangladeshi referral would only grant the court jurisdiction if the crimes were committed by Bangladeshi nationals, which is not the case. Hence, it is unlikely that a Bangladeshi referral can serve as a route to conferring the Court jurisdiction. Therefore, the only way in which the Court can exercise jurisdiction over the matter is a Security Council referral.[85]

And this is not unheard of. The Security Council has previously referred situations to the Court, most notably the situation in Sudan which led to the investigation against Omar al-Bashir of Sudan.[86] Despite the political controversy surrounding the case, legally, scholars have argued that the binding nature of Security Council resolutions could also translate into obligations upon states to co-operate with investigations of the Prosecutor.[87] Theoretically then, it is possible that a resolution by the Security Council could trigger the Court’s jurisdiction over this situation. There has been sufficient criticism over the extent of the Security Council’s powers and the situation in Sudan, and it is not my intent to rehash that here.[88]  Instead, I wish to focus on the political nature of Security Council Referrals. Crucially, immigration detention is not a method solely employed by India. In fact, the situation has become a prevalent response to immigration, employed by the United States and various European countries.[89] Given that the language and politics of mass incarceration[90] are being increasingly deployed against immigrants by many nations (including permanent members of the Security Council), it is unlikely that such nations would encourage a Security Council resolution as a test case against detention centres in India, being aware of the hypocrisy and potential of such a referral being used against them in the future.[91]

What then is the purpose of this paper in classifying this detention as a crime against humanity? It is the moral expressivism that such a classification brings to the fore. The role of international criminal norms is not mere punishment but an attempt by the global community to disavow particular forms of conduct thereby symbolically indicating their refusal to acquiesce to crimes which shock our shared norms of morality.[92] And this norm expression also engenders accountability through the various relationships and interactions in the international criminal process. Through thematic investigations, prosecutions and legal practice, international criminal legal agents can use rhetorical techniques, performance and representation to enamour new audiences and reformulate relationships between the legal practice and society, thereby also reformulating the premise of underlying bodies of law.[93] Essentially, norm expression can sometimes lead to norm entrepreneurship.

Previously I argued that these norms must look beyond ‘atrocities’ to recognize the banal nature of evil. Hence, it’s important to understand how these facially harmless laws have led to terrible conditions in these detention camps. Generally, Indian prisons are rife with evidence of widespread torture, custodial rape, overcrowding and massively underfunded health and medical care.[94] Harsh Mander, the special monitor for the National Human Rights Commission, found that the detention camps in Assam were filled with grave and extensive human distress and suffering.[95] Since these detention centres are created as sub-parts of normal jails, the incarcerated ‘foreigners’ are treated differently (and worse) that the ‘civilian prisoners’. Given that there are no guidelines or laws which regulate the rights of the incarcerated, they are subject to arbitrary conditions decided by the wardens and authorities in charge of each centre. Most are not allowed work, denied any recreational activities or visits from family or parole. Additionally, children above the age of six are separated from their families.[96] It is precisely because of the lack legal protections highlighted previously, that their situation can now be characterized as cruel and inhuman.

In the face of this cruelty, moral expressivism can help kindle alternative means of recourse. The value of this expressivism is that it focuses attention on the evaluation of state action vis-à-vis shared international human rights norms. Consider that growing human rights violations and the moral outrage surrounding them led to the United Nations High Commissioner for Refugees concluding that detention did not deter irregular migration, or discourage persons from seeking asylum.[97] Further, the growing focus and outrage regarding such situations has led to a shift in the underlying notions of immigration with growing recognition of the wrong of imposing criminal liability upon individuals moving ‘irregularly’.[98] Therefore, the expressive impact of this classification can lead to international advocacy and resolutions, which condemn immigration detention in a general sense and the Indian situation specifically. Further, such expressivism should lead to national and international efforts aimed at encouraging immediate solutions such as bail bonds, community release and better reporting conditions amongst others. For, if the Modi government can undo six decades in six years,[99] surely, we can put some of it back.

[*] S.J.D Student, University of Michigan Law School. I’m grateful to Amb. (retd) Susan D. Page, Prof. Steven Ratner, Bojan Perovic, Jayee Malwankar as well as the participants in the seminar on African Countries and the International Criminal Court conducted at the University of Michigan Law School in 2022 for their feedback. All errors are, of course, my own.

[1] Assam Public Works v. Union of India, (2018) 9 SCC 231.

[2] NRC Final List, IndiaToday (Aug. 31, 2019) https://www.indiatoday.in/india/story/nrc-final-list-how-and-where-to-check-your-name-on-assam-national-register-of-citizens-1593695-2019-08-31.

[3] Salah Punathil, Precarious Citizenship: Detection, Detention and Deportability in India, 26 Citizenship Studies 55 (2022).

[4] See generally, Gary Bass, The Blood Telegram (2013).

[5] Nayanima Basu, Bangladesh wants ‘written’ assurance from India that it won’t send immigrants after CAA, ThePrint (Dec. 30, 2019 5:10PM) https://theprint.in/diplomacy/bangladesh-wants-written-assurance-from-india-that-it-wont-send-immigrants-after-caa/342579/.

[6] Talha Abdul Rahman, Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam, 2 Statelessness and Citizenship Rev. (2020).

[7] Citizenship (Amendment) Act, 2019.

[8] Under the act, Buddhists, Christians, Hindus, Jains, Parsis, and Sikhs who have migrated from Afghanistan, Bangladesh, or Pakistan to India prior to 2014 are no longer considered illegal immigrants and can more readily achieve citizenship. Left out of the six religions granted special privileges are Jews and Muslims, thereby making official a discriminatory policy against Islam and Judaism in India. See, Anupama Roy, The Citizenship (Amendment) Bill and the Aporia of Citizenship, 54 Econ. Pol. Weekly 49 (2019).

[9] There’s an interesting anthropological and historical comparison to be made. Consider how the United States has used various laws over the course of history to designate ‘undesirables’ as foreign, both at local and federal levels. As such the aim of the Indian Government here is not a depoliticized move to restrict illegal immigration (as depoliticized as that can ever be), but rather changes designed specifically to exclude Muslims from the polity and more importantly the electorate. See, Kunal Parker, Making Foreigners: Immigration and Citizenship Law in America, 1600-200 (2015); Anupama Roy, Citizenship in India (2017).

[10] It’s reported that these centers are now called transit camps, in an attempt to humanize the camps. Assam’s Detention Centre’s for ‘Foreigners’ to now be called Transit Camps, Scroll (Aug. 19, 2021). https://scroll.in/latest/1003251/assams-detention-centres-for-foreigners-to-now-be-called-transit-camps.

[11] The government has admitted that there is no centrally maintained database and hence exact numbers are impossible to come by. See, Six detention centres in Assam with capacity of 3,331 persons: Home Ministry tells Lok Sabha, TheIndianExpress (March 17, 2020 6:23PM).

[12] U.N. General Assembly, Universal Declaration of Human Rights, A/RES/217(III) (Dec. 10, 1948).

[13] U.N. General Assembly, Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (entered into force April 22, 1954).

[14] Dipankar De Sarkar, Why India Won’t Sign Refugee Treaty, Mint (Sept. 11, 2012 01:12AM) https://www.livemint.com/Opinion/bePZQScFIq1wEWv9Tqt4QO/Why-India-wont-sign-Refugee-Treaty.html; Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L 287 (1996).

[15] Consider how Kelsen distinguished between international and internal peace and reminded his readers that the former is the ‘purpose’ of the United Nations. Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems with Supplement 1964 19 (1950).

[16] U.S. Dept of State, Telegram to U.S. Embassy in Constantinople (May 29, 1915) https://www.armenian-genocide.org/popup/affirmation_window.html?Affirmation=160 (Due to the genocide of the Armenian population in Armenia by the Kurdish and Turkish population of Armenia with the connivance and authority of the Ottoman Empire, the French, British and Soviet governments issued a joint communique delivered by the Americans to the Turkish. Outlining the murders and offenses, the Allied governments announced to the Sublime Porte, that they would hold all members of the Ottoman Government and their agents, personally responsible for any participation in these crimes, setting off the notion of individual criminal responsibility. Its perhaps curious to note the religious origins though. The initial draft of the declaration by the Allied Powers read ‘crimes against Christianity’. However, the then French Foreign Minister Theophile Delcasse thought the usage of Christianity would antagonize the Muslim populations of the colonies of France and Britain and hence the word humanity was used.) See, Christopher Andrew, Theophile Delcasse and the Making of the Entente Cordiale (1968). See also, Michelle Tusan, “Crimes Against Humanity”: Human Rights, The British Empire, and the Origins of the Response to the Armenian Genocide, 119 Am. Hist. Rev. 47 (2014).

[17] However, some scholars think the concept predates World War I. They point to the usage of term (similar in intent) in declarations and letters in the late 1800s and early 1900s in context of slavery born from the European colonization of Africa, specifically George Washington Williams’ open letter to King Leopold II of Belgium, protesting the atrocities of colonization in the then Independent State of Congo. See, George Washington Williams, Open Letter to King Leopold on the Congo (1890), Blackpast (Aug. 20, 2009) https://www.blackpast.org/global-african-history/primary-documents-global-african-history/george-washington-williams-open-letter-king-leopold-congo-1890/. See also, Hunt Hawkins, Conrad and Congolese Exploitation, 13 Conradiana 94 (1981); Robin Kelley, “But a Local Phase of a World Problem”: Black History’s Global Vision, 1883-1950, 86 J Am. His. 1045 (1999).

[18] Antonio Cassese, International Criminal Law 81 (2003). See also, Article 227, Treaty of Versailles (July 28, 1919) https://avalon.law.yale.edu/imt/partvii.asp.

[19] Kevin Jon Heller, The Nuremburg Military Tribunals and the Origins of International Criminal Law (2011).

[20] Article 6, U.N., Charter of the International Military Tribunal- Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, Aug. 8, 1945, 58 Stat. 1544, 82 U.N.T.S. 280.

[21] Article II (1)(c), Control Council Law No. 10 on the Punishment of Persons Guilty of War Crimes, Crimes against Peace and Crimes against Humanity, Dec. 20, 1945. https://avalon.law.yale.edu/imt/imt10.asp.

[22] Article 5, U.N. Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on May 17, 2002), May 25, 1993; Article 3, Statute of the International Criminal Tribunal for Rwanda (as amended on Oct. 13, 2006), Nov. 08, 1994.

[23] Prosecutor v. Dario Kordic and Mario Cerkez, Case No.  IT-95-14/2-T ¶ 800 (Feb. 26, 2001).

[24] John Ciorciari & Anna Heindel, Hybrid Justice: The Extraordinary Chambers in the Court of Cambodia 14, 69 (2014).

[25] Prosecutor v. Kaing Guek Avi (Duch), Case No. 001/18-07-2007-ECCC/SC ¶ 347-350 (Feb. 3, 2012). The trial chamber was looking at the confinement of Cambodians in S-21 (Tuol Sleng). Having recently visited Cambodia, I was able to meet Chum Mey, one of the seven adults to have survived the prison. While he described to me the horrors of the prison, my mind turned to the various photographs displayed in the prison museum, specifically the grinning, defiant faces of individuals (who I can only identify as a female prisoner bearing the number 381 and the date 21/3/78 and a male prisoner bearing the number 399) and the words inscribed there, “May this be a symbol to the world of what happens to humanity when it is overcome by hate.”

[26] Antonio Cassese, International Criminal Law 81 (2003).

[27] This is not to say that atrocity crimes were not included or considered within international criminal law, previously. Instead, this is to signal a change in the underlying premise of the raison d’être of international criminal law, from a focus on the prevention of war through humanitarian law to human rights protection. See, Theodor Meron, The Humanization of Humanitarian Law, 94 Am. J. Int’l L. 239 (2000).

[28] Jeff McMahan, The Morality of War and the Law of War, in Just and Unjust Warriors: The Moral and Legal Status of Soldiers 19 (D. Rodin and H. Shue eds., 2008).

[29]Andrew Clapham, Human Rights and International Criminal Law in The Cambridge Companion to International Criminal Law (William Schabas eds., 2016).

[30] There’s an interesting interpretative methodology to this process. Ronald Dworkin explained it best when he envisioned the development of domestic legal systems as various authors adding chapters to a chain novel. The new author here has to be constrained by the previous chapters, which is the pre-existing material, therefore having to articulate the new law/chapter such that it best fits the political morality of the previous materials. International law can be read in the same form. The Hague Conventions dealing with the law of conflict and war refer to broader notions of laws being based in collective principles of humanity or an ius gentium. Recognizing the possibility of future developments and moving beyond the war and peace dichotomy, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, categorize crimes against humanity into both war and peace times. This is all to say that this shift and the ensuing refashioning of exiting statues and doctrine is not unfounded or a mere attempt to manipulate existing material to best fit the current problems. See, Ronald Dworkin, Taking Rights Seriously 229 (1978). See also, Robert Miller, The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 65 Am. J. Int’l L. 476 (1971); Theodor Meron, The Geneva Conventions as Customary Law, 81 Am. J. Int’l L. 348 (1987).

[31] International Convention on Civil and Political Rights, Dec. 16, 1988, 999 U.N.T.S 171 (hereinafter ICCPR); Universal Declaration of Human Rights, Dec. 8, 1948, U.N.G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948) (hereinafter UDHR).

[32] UN Human Rights Committee, CCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons), 30 June 1982, No. 8, https://www.refworld.org/docid/4538840110.html.

[33] UN General Assembly, Elimination of all forms of intolerance and discrimination based on religion or belief, Dec. 19, 2006, A/RES/61/16.

[34] UN General Assembly, Protection of Human Rights and Fundamental Freedoms when countering terrorism, Dec. 18, 2007, A/RES/62/159.

[35] Article 7(1)(e), Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 U.N.T.S. 3.

[36] International Criminal Court, Elements of Crimes 5 (2011).

[37] See, Komol Singha, Migration, Ethnicity-based Movements and State’s Response: A Study of Assam, 55 Int’l Stud. 41 (2018); Udayon Mishra, Immigration and Identity Transformation in Assam, 34 Econ. Pol. Weekly 1264 (1999); Sanjib Baruah, India Against Itself: Assam and the Politics of Nationality (1999).

[38] Closure is defined as social collectives seeking to maximize rewards by restricting accesses to resources and opportunity to a limited circle of the eligible. This is easily identifiable in the political rhetoric of ‘loss of culture’, which is essentially the reduction of cultural and social capital of the privileged by the arrival of an often-industrious new worker class which has different tastes and tendencies than them. This tends to develop tones of distinction based on the identity of the migrants, most often race and religion. See, Frank Parkin, Strategies of Social Closure in Class Formation in The Social Analysis of Class Structure 1, 18 (Frank Parkin ed., 1974).

[39] Protectionism here is evidenced by a global tendency to move towards protection of domestic labour, which is identifiable through the political rhetoric of keeping jobs at home. I suspect these two factors drive opposition towards immigrants globally. You will notice that rhetorical arguments against immigrants are based in two essential constructs, the theft of jobs and the destruction of culture. See, Jagdish Bhagwati, A Stream of Windows: Unsettling Reflections on Trade, Immigration and Democracy (1998).

[40] Anil Roychoudhury, National Register of Citizens, 1951, 16 Econ. Pol. Weekly 267 (1981).

[41] Foreigners (Tribunal) Order, 1964.

[42] See, Makiko Kimura, The Nellie Massacre of 1983: Agency of Rioters (2013); Myron Weiner, The Political Demography of Assam’s Anti-Immigration Movement, 9 Population & Dev. Rev. 279 (1983).

[43] Rudabeh Shahid & Joe Turner, Deprivation of Citizenship as Colonial Violence: Deracination and Dispossession in Assam, 1 Int’l Pol. Soc. 1 (2022).

[44] Assam Accord, 1985; Illegal Migrants (Determination by Tribunals) Act, 1985.

[45] Sarbananda Sonorwal v. Union of India, AIR 2005 SC 2920. This is a particularly pernicious judgement of the Court as they also thought that illegal immigration was akin to external aggression against the state. There were various arguments regarding the constitutionality of the new tribunals, including their discriminatory nature since the act authorising these tribunals limited jurisdiction to Assam, while the Foreigner Tribunals technically had jurisdiction over India, as a whole. But primarily, the act authorising the new tribunals required the state to prove that the charged individual was not a citizen of India, whereas Section 9 of the Foreigner’s Act, 1946 (which authorises the Foreigners Tribunals) places the burden on the charged individual. The Court, agreeing that the new tribunals made the process of chaffing out ‘illegal immigrants’ arduous, held them to be unconstitutional.

[46] The Supreme Court of India has previously held that foreigners ought to be detained pending their deportation/repatriation. The government of Assam declared their intention to detain such foreigners and the Gauhati High Court required the state to set up detention centers for those declared foreigners in Assam. However, since their presumed state of origin, Bangladesh, maintains that they are not its nationals, there is no real option of deportation. This detention has, therefore, become indefinite. Bhim Singh v. Union of India, (2012) 13 SCC 471; Santanu Borthakar v. Union of India and Ors., W.P.  (Crl) 2/2020 Gau H.C. See also, Government of Assam, White Paper on Foreigners’ Issue (2012). See generally, Centre for Public Interest Law, Securing Citizenship 98 (2020).

[47] Monish Bhatia, State Violence in India: From Border Killings to the National Register of Citizens and the Citizenship Amendment Act in Stealing Time: Migration, Temporalities and State Violence 171 (Victoria Canning & Monish Bhatia eds. 2021).

[48] Art 9, 14, 15, ICCPR; Art. 8, 9, 10 UDHR. Supra note 31.

[49] See, Art. 8, American Convention on Human Rights “Pact of San Jose, Costa Rica”, Nov. 22, 1969, 1144 U.N.T.S. 123; Art.7, 26, African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217. Art. 6, Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol No. 11) Rome, 4.Xi. 1950.

[50] U.N. General Assembly, Human Rights in the Administration of Justice, Dec. 13, 1985, A/RES/40/146; U.N. General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Nov. 29, 1985, A/RES/40/34; U.N. General Assembly, Basic Principles on the Role of Lawyers and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Dec. 16, 2005, A/RES/60/147.

[51] Lawrence Chan v. Guyana, Communication No. 913/2000, U.N. Doc. CCPR/C/85/D/913/2000 (2006).

[52] Dudko v. Australia, Communication No. 1347/2005, U.N. Doc. CCPR/C/90/D/1347/2005 (2005).

[53] Terron v Spain, Communication No. 1073/2002, U.N. Doc. CCPR/C/82/D/1073/2002 (2002).

[54] Stefania Negri, The Principle of ‘Equality of Arms’ and the Evolving Law of International Criminal Procedure, 5 Int’l Crim. L. Rev. 513 (2005).

[55] Initially, the Supreme Court interpreted the Constitution to not require courts to impose a due process of law standard. A.K. Gopalan v. State of Madras, AIR 1950 SC 27. However, this decision was overruled in favour of the three-pronged approach in Maneka Gandhi v. Union of India, AIR 1978 SC 597 and R.C. Cooper v Union of India, AIR 1970 SC 564.

[56] Kenneth Pennington, Innocent Until Proven Guilty: The Origins of a Legal Maxim, 63 Jurist 106 (2003).

[57] Amnesty International, Designed to Exclude: How India’s Courts are Allowing Foreigners Tribunals To Render People Stateless in Assam (2019).

[58] Rule 2(2), Foreigners (Tribunals) Order, 1964 (allows the government to determine the specific qualifications and criteria they deem fit and appoint judges based on that criteria. As a matter of practice, the government issues notifications through the Gauhati High Court for recruitment which contain the qualification criteria).

[59] Government of Assam, Order by the Governor, No. PLB.143/2014/210 (July 29, 2015). To understand how severely underqualified the judges being appointed are, consider this statement by Sanjay Hegde, a Senior Advocate of the Supreme Court of India: “If the conditions for hiring the Foreigner Tribunal members were applied for example to the Debt Recovery Tribunal, people would have yelled that injustice was being done to them. Clearly, we seem to place a lesser premium on human citizenship than on human debt.”  Supra note 64.

[60] Supra note 64 at 5.

[61] U.N. Special Rapporteur on the Independence of Judges and Lawyers, Report on the essential role that the Basic Principles on the Independence of the Judiciary have played as guarantors of judicial independence, A/74/176 (July 16, 2020).

[62] Rule 2(2), Foreigners (Tribunals) Order, 1964.

[63] Shariful Islam v. Union of India, (2019) 8 Gau. LR 322.

[64] Amina Khatun v. Union of India, (2018) 4 Gau. LR 643.

[65] Unstarred Question No. 1724, Answered on 2 July 2019, Government of India, Ministry of Home Affairs, http://164.100.24.220/loksabhaquestions/annex/171/AU1724.pdf. Analysing the situation of these people, Amnesty found that despite selling their meagre possessions, most individuals are unable to appear in the Tribunals after the first or second hearing due to the financial constraints leading to the rise in orders passed ex-parte. This is despite the requirement for the state providing legal counsel. Supra note 64.

[66] Most tribunals are asking for documentary evidence of land ownership as a mark of proving citizenship. Given the class and gender hierarchies prevalent in India which prevent women, children and financially disadvantaged people from owning land, they have no method of proving citizenship. Additionally, some tribunals use stringent evidentiary standards including not permitting minor variations in spellings and ages in identity documents. In the Indian subcontinent, with English not being the first language and with various dialects leading to variations in spelling, such a standard has led to a considerable number of people being declared foreigners on flimsy grounds. Abdur Rahim v. Union of India, (1992) 1 Gau. LR 29. See, Sagar, Case Closed: How Assam’s Foreigners Tribunals, aided by the high court, function like kangaroo courts and persecute its minorities, Caravan (Nov. 5, 2019) https://caravanmagazine.in/law/assam-foreigners-tribunals-function-like-kangaroo-courts-persecute-minorities.

[67] Report of the Secretary General, Human Rights and Arbitrary Deprivation of Nationality, A/HRC/25/28 (Dec. 19, 2013).

[68] Writ or appellate jurisdiction of the High Courts and Supreme Court. Art. 32 & 226, Constitution of India, 1950.

[69] State of Assam v. Moslem Mandal & Ors., 2013 (1) GLT 809.

[70] The Supreme Court held that the Border Police Force had the powers to summarily inquire into the citizenship of any individual and then the burden of proof shifts upon the individual to prove citizenship in the Foreigners Tribunal. Idrish Ali v. Union of India, SC: WP(C)/7349/2021. It is illuminating to compare the foreigner’s tribunals to other quasi-judicial tribunals in India. Consider the Securities and Exchange Board of India, where inquiries or fact-finding missions are conducted by an officer or member of the board and then by an Appellate Authority before it reaches the final stage of adjudication, the Securities Appellate Tribunal. Alternatively, even the income tax authorities use a multi-tiered system, where inquiries are first conducted by an Income Tax Officer and the Appellate Authority before it reaches the Income Tax Appellate Tribunal. While, notionally the tribunals remain the first judicial authority in these cases, effectively a two-tiered review is conducted before the matter reaches the tribunal. Contrastingly, the Border Police Force is not required to assess citizenship, merely file references with evidence (adequate or inadequate) before the Foreigners Tribunals. Thus, the first adjudication is conducted by the Tribunal, where the burden of proof is shifted upon the defendant. Then, restricting the re-evaluation of evidence on appeal severely limits the remedies available to the defendants.

[71] There is a remarkable degree of similarity between the Foreigner’s Tribunals and immigration courts in the U.S system which reside within the executive branch, and have similar problems in terms of political control, lack of stability for judges and tenuous standards of review. See, Judge Mimi Tsankov, Human Rights at Risk: The Immigration Courts are in Need of an Overhaul, 61(1) Judges’ J. 19 (2022); Catherine Kim & Amy Semet, An Empirical Study of Political Control over Immigration Adjudication, 108 Geo. L. J. 579 (2020); Asad L. Asad, Deportation Decisions: Judicial Decision-Making in an American Immigration Court, 63(9) Am. Behav. Sci. 1221 (2019). See generally, Banks Miller, Linda Keith & Jennifer Holmes, Immigration Judges and U.S. Asylum Policy (2015).

[72] Smita Ghosh, Border Games, 1 Mich. J. L. Soc. 113 (2022).

[73] Letter to the Office of Andrew Wilkie MP, Office of the Prosecutor (Feb. 12, 2020) OTP-CR-322/14/001.

[74] Kevin Jon Heller, The OTP lets Australia off the Hook, OpinioJuris (Feb. 17, 2020) http://opiniojuris.org/2020/02/17/the-otp-lets-australia-off-the-hook/.

[75] Look no further than the indirect effects test in anti-discrimination law. See, Mark Tushnet, The Issue of State Action/Horizontal Effect in Comparative Constitutional Law, 1 Int’l J. Con. L. 79 (2003); Stephen Gardbaum, The Horizontal Effect of Constitutional Rights, 102 Mich. L. Rev.387 (2003); Austen Parrish, The Effects Test: Extraterritoriality’s Fifth Business, 61 Vand. L. Rev. 1455 (2008).

[76] Angana Chatterjee, Mihir Desai, Harsh Mander and Abdul Kalam Azad, Detention, Criminalisation and Statelessness: The Aftermath of Assam’s Statelessness, The Wire https://thewire.in/rights/detention-criminalisation-statelessness-the-aftermath-of-assams-nrc.

[77] Dulap Chandra Paul’s mental health deteriorated after having been imprisoned since 2017 and he finally passed in 2019. Nazimuddin Siddique, India’s Assam Detention Camps, 55 Econ. Pol. Weekly (2020).

[78] Ratan Chandra Biswas, who spent two and a half years in a detention camp, fell seriously ill in the camp and was admitted to the Goalpara hospital, where he remained handcuffed to a hospital bed despite his health. Id.

[79] As of 2020, there are at least thirty documented cases where the detainees have died. Sadqi Naqvi, 50-yr-old Man Lodged in Assam Detention Centre Dies, 29th Death in 3 Years, Hindustan Times (Jan. 5, 2020).

[80] Gregory Stanton, Genocide Watch for Assam India-Renewed, Genocide Watch (Aug. 18, 2019) https://www.genocidewatch.com/single-post/2019/08/18/genocide-watch-for-assam-india-renewed.

[81] Sharon Anderson-Gold, Kant, radical evil and crimes against humanity in Kant’s Anatomy of Evil 195 (Sharon Anderson-Gold & Pablo Muchik eds., 2010).

[82] See generally, Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963).

[83] Supra note 35.

[84] Usha Ramanathan, India and the ICC, 3 J. Int’l Crim. Just. 627 (2005).

[85] Shabtai Rosenne, The Jurisdiction of the International Criminal Court, 2 Yearbook of Int’l Humanitarian L. 119 (1999). Eva La Haye, The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising its Jurisdiction, 46 Netherlands Int’l L. Rev. 1 (1999).

[86] U.N. Security Council, Resolution on Sudan Referral, S/RES/1593/2005.

[87] Zhu Wenqi, On Co-operation by States not Party to the International Criminal Court, 88 Int’l Rev. Red Cross 87 (2006).

[88] See generally, Alexandre Skander Galand, UN Security Council Referrals to the International Criminal Court: Legal Nature, Effects and Limits (2018); Tom Dannenbaum, Legitimacy in War and Punishment: The Security Council and the ICC in The Oxford Handbook of International Criminal Law 130 (Frederic Merget et al eds., 2020); Frederick Cowell, Inherent Imperialism: Understanding the Legal Roots of Anti-imperialist Criticism of the International Criminal Court, 15 J. Int’l Crim. Just. 667 (2018).

[89] See generally, Beyond Detention, A Global Strategy to support Governments to end the detention of asylum seekers and refugees, UNHCR (2014); A Last Resort? National Inquiry into Children in Immigration Detention, Australian Human Rights and Equal Opportunity Commission113 (2004); Judith Greene, Bethany Carson & Andrea Black, Indefensible: A Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border, Grassroots Leadership 45 (2016).

[90] Ruth Sangree, The Language of Mass Incarceration is being deployed against Immigrants, Brennan Center for Justice (Nov. 2, 2018) https://www.brennancenter.org/our-work/analysis-opinion/language-mass-incarceration-being-deployed-against-immigrants.

[91] As international criminal prosecutions target individuals responsible for crimes against humanity, an interesting final question to consider would be, whom should the law attribute responsibility upon, within the Indian government, for these crimes against humanity? Would it be the Prime Minister as representative of the executive branch, or bureaucrats facilitating this imprisonment, or individuals working in the Border Police Force or as guards at these camps? The impossibility of a Security Council referral and therefore any prosecution before the International Criminal Court is why this essay does not consider individual accountability, and therefore does not take up this question. See, Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, 5(4) J. Int’l Crim. Just. 953 (2007); Nina Jorgenson, The Responsibility of States for International Crimes139 (2000).

[92] See, Robert D Sloane, The Expressive Capacity of International Punishment, (2007) Stanford J. of Int’l L. 39(2007); Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397 (1965).

[93] Carsen Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice 396 (2020). See, Barrie Sander, The Expressive Turn of International Criminal Justice: A Field in Search of Meaning, 32(4) Leiden J. Int’l L. 851 (2019).

[94] Human Rights Watch, Prison Conditions in India (1991).

[95] Harsh Mander, The dark side of humanity and legality: A glimpse inside Assam’s detention centres for ‘foreigners’, Scroll (Jun. 26, 2018 06:30AM) https://scroll.in/article/883936/assam-citizens-register-detention-centres-for-foreigners-offer-a-glimpse-of-the-looming-tragedy.

[96] Supra note 64.

[97] U.N. High Commissioner for Refugees, Global Roundtable on Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and Stateless Persons (July 2011).

[98] Another example of the effect of expressivism was international outrage and the end of apartheid. See, Louise Bethlehem, Cultural Solidarities: Itineraries of Anti-Apartheid Expressive Culture, 20 J. of South African & American Stud. 143 (2020). For a generic argument of the expressive effect of the ICC, see, Errol Mendes, Peace and Justice at the International Criminal Court 170 (2010).

[99] Amit Shah, Undoing Six Decades in Six Years, NarendraModi.in (May 30, 2020, 03:11PM) https://www.narendramodi.in/ma/undoing-6-decades-in-6-years-modi-has-turned-india-into-a-self-reliant-country-brimming-with-self-confidence-551895.

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Due Process Denied: A Case Study on the Failures of U.S. Affirmative Asylum

Due Process Denied: A Case Study on the Failures of U.S. Affirmative Asylum

Jun 1, 2023 | Content, Online Features, Online Scholarship, The Impact of International Law on Refugees and Migration

Anna R. Welch and Sara P. Cressey*

With this new [asylum] program in place, we will be better equipped to carry out the spirit and intent of the Refugee Act of 1980 by applying the uniform standard of asylum eligibility, regardless of an applicant’s place of origin. We can thus implement the law based on a fair and consistent national policy and streamline what has sometimes been a long and redundant process.[1]

Gene McNary, Commissioner of the Immigration and Naturalization Service, in remarks given weeks before opening of first asylum offices.

***

Amelia fled her home country in central Africa after the country’s repressive ruling regime singled her out based on her perceived political affiliations, subjected her to severe physical and sexual violence, murdered her sibling, and kidnapped and likely killed one of her children.[2] After arriving in the United States, she found an attorney who assisted her in preparing and submitting her affirmative asylum application along with extensive supporting documentation, including expert medical reports documenting the ongoing physical and psychological effects of her trauma. A year after submitting her application, Amelia had her asylum interview with a hostile asylum officer who spent several hours interrogating her as she recounted the harrowing persecution she had suffered. Another year of waiting passed before Amelia received a request for additional evidence and a notice that she would need to attend a second interview at the asylum office. Amelia complied with both notices but was nevertheless referred to immigration court, where she spent another five years awaiting a merits hearing. She was finally granted asylum by an immigration judge eight years after her original asylum application was filed.

Introduction

America’s promise of safe haven to those fleeing from persecution, an obligation enshrined in both international and domestic law,[3] too often remains unfulfilled, particularly for racial minorities and other marginalized groups. Indeed, the right to seek asylum at the southern border has been virtually nonexistent since Title 42 was implemented in the early days of the COVID-19 pandemic.[4] Meanwhile, those who do manage to make it into the United States to lodge an asylum claim face a Byzantine administrative process plagued by “monumental” backlogs, leading to years-long (or even decades-long) wait times.[5] This Article focuses on one particular aspect of the asylum system, reporting on the first ever comprehensive study into the inner workings of an asylum office in the United States.[6] The findings of the study, set forth in the full report “Lives in Limbo: How the Boston Asylum Office Fails Asylum Seekers,” reveal larger systemic failures within the broader affirmative asylum system.[7]

The investigation into the Boston Asylum Office, spearheaded by lead investigator Anna Welch, involved both qualitative and quantitative research methods. Researchers analyzed documents and data produced by U.S. Citizenship and Immigration Services (USCIS) in response to litigation brought to compel compliance with a Freedom of Information Act (FOIA) request, as well as USCIS Quarterly Stakeholder Reports. In addition, researchers conducted more than one hundred interviews with former supervisory asylum officers, former asylum officers, immigration attorneys, asylum seekers, and asylees. The research was completed in January 2022, and the report was released to the public on March 23, 2022. This Article reproduces the findings of the  report,  presented  as  a  resource  for practitioners, scholars, and policymakers. The report’s major conclusion is that the Boston Asylum Office maintains an asylum grant rate well below that of the national average.[8]

The Refugee Act of 1980 formalized the right to seek asylum in the United States, but “the law itself did little to define or prescribe the mechanics of obtaining this status.”[9] During the 1980s, the adjudication of affirmative asylum applications was governed by a set of interim regulations[10] under which immigration officers within Immigration and Naturalization Service (INS) District Offices would adjudicate asylum claims.[11] During that period, criticism of the INS abounded as “unspecialized, under-paid, and over-worked” INS officers[12]struggled to apply the complex refugee definition.[13] On July 27, 1990, the INS issued a final rule establishing procedures to be used in determining asylum claims and mandating the creation of “a corps of professional Asylum Officers” who would receive specialized training in international law and conduct asylum interviews in a nonadversarial setting.[14] The INS then established – for the first time – seven asylum offices, with the goal of creating a fairer and uniform affirmative asylum process.[15]

Federal regulations still require that asylum officers receive “special training in international human rights law” and “nonadversarial interview techniques.”[16] USCIS training materials for asylum officers emphasize the importance of the nonadversarial interview:

It is not the role of the interviewer to oppose the principal interviewee’s request or application. Because the process is non-adversarial, it is inappropriate for you to interrogate or argue with any interviewee. You are a neutral decision- maker, not an advocate for either side. In this role you must effectively elicit information from the interviewee in a non- adversarial manner, to determine whether he or she qualifies for the benefit. . . . The non-adversarial nature of the interview allows the applicant to present a claim in an unrestricted manner, within the inherent constraints of an interview before a government official.[17]

Unfortunately, the affirmative asylum system remains plagued by many of the issues that the 1990 final rule was intended to solve. As discussed in detail below, the process for adjudicating affirmative asylum claims remains long and difficult and too often leads to inconsistent outcomes based on the applicant’s country of origin. The more informal, non-adjudicative framework for adjudicating asylum claims in the asylum offices lacks transparency and creates an opportunity for hostility and bias to permeate the decision-making process.

I. Summary of Major Findings

The Boston Asylum Office maintains an asylum grant rate well below that of the national average. Examining the average nationwide grant rate of asylum offices between 2015 and late 2020, we found that the Boston Asylum Office granted a little over 15 percent of its cases as compared to the national average grant rate of 28 percent. Examining monthly grant rates, we found that the Boston Asylum Office’s grant rates dropped into the single digits on multiple occasions. While the Boston Asylum Office maintains the second lowest grant rate in the country, several asylum offices around the country also maintain grant rates below that of the national average.

Indeed, many of the problems identified in this study are likely not isolated problems but rather are reflective of larger systemic failures pervasive in other asylum ffices around the country. As part of this study, we interviewed former asylum officers and supervisory asylum officers from asylum offices around the country. Many noted the prevalence of biased decision-making, the outsized role of upper management and/or supervisory asylum officers, and insufficient time to complete their job functions. Yet their functions are critical to ensuring U.S. compliance with international and domestic asylum protections.

We ultimately find that the Boston Asylum Office is failing asylum applicants in violation of international obligations and U.S. domestic law. The Boston Asylum Office’s biased and combative asylum interview process, asylum backlog, and years-long wait for adjudication has had devastating impacts on applicants and their families. If an asylum officer does not grant a case, the case is typically referred to immigration court, an intentionally adversarial setting.[18] Although the Boston Immigration Court has a significantly higher asylum grant rate than the Boston Asylum Office,[19] asylum applicants face even lengthier backlogs before being heard by an immigration judge, leading to further delay.[20] As a result, asylum seekers face years of legal limbo, rendering many individuals ineligible for social services and contributing to significant instability. The years-long wait to be granted asylum causes lengthy separation from family members (many of whom remain in life-threatening danger) and deterioration of the applicant’s mental health.[21]

Specific Findings:

First, the Boston Asylum Office exhibits bias against applicants from certain countries as well as a bias against non-English speakers, as displayed in Table 2 below.

The Boston Asylum Office does not maintain a nationality-neutral determination process, as mandated by international and domestic law. Notably, applicants from certain countries – including Angola, Democratic Republic of Congo (DRC), Rwanda, and Burundi – experience lower grant rates in the Boston Asylum Office than in the Newark Asylum Office.[22] From 2015 to 2020, the Boston Asylum Office granted asylum to just four percent of asylum applicants from the DRC despite extensive documentation of human rights abuses in the DRC. Indeed, the U.S. Department of State has acknowledged year after year that “significant human rights” abuses occur in the DRC, including that DRC security forces commit “unlawful and arbitrary killings . . . forced disappearances, [and] torture” against citizens.[23]

Interviews with asylum attorneys confirmed the prevalence of biased decision-making among adjudicators in the Boston Asylum Office. One asylum attorney noted, “the belief of the Boston Asylum Office is that [clients from certain African countries] are not telling the truth . . . We have taken a number of cases that have been referred from the Boston Asylum Office and then we have won them in court without a problem and there has been no suspicion about negative credibility.”[24]

Moreover, data collected from our FOIA request revealed that English speakers are much more likely to be granted asylum in Boston than non-English speakers, even though speaking English is irrelevant to an individual’s eligibility for asylum.

As demonstrated in Figure 2 above, English-speaking asylum seekers are nearly twice as likely to be granted asylum as compared to non-English speakers. Conversely, non-English speakers are referred to immigration courts 80 percent of the time, while English speakers are referred to immigration court only 58 percent of the time.[25]

Second, the Boston Asylum Office’s low grant rate is likely driven by the oversized role for supervisory asylum officers. Although the Affirmative Asylum Procedures Manual requires that asylum officers be given “substantial deference” in deciding whether to grant a case,[26] we found that supervisory asylum officers exercise a high degree of influence over decisions made by asylum officers.

One supervisory asylum officer familiar with the Boston Asylum Office observed that the asylum officers and supervisory asylum officers hired in Boston generally trended against granting asylum.[27] Every decision rendered by an asylum officer must go through supervisory review. When a supervisory asylum officer returns an application to an asylum officer for further review or reconsideration, this creates additional work for the asylum officer. The officer may be forced to conduct additional investigation or even re-interview the asylum seeker to support their original decision. This additional work can lead to negative performance reviews because supervisory asylum officers can give asylum officers negative performance reviews if their decisions require reconsideration. Additionally, asylum officers are evaluated, in part, on the number of decisions they issue during a given timeframe. In light of these negative impacts, asylum officers are incentivized to write decisions their supervisor agrees with, regardless of whether they think a given applicant meets the requirements for asylum.

Third, asylum officers face time constraints and high caseloads that incentivize them to cut corners. By the end of 2021, the Boston Asylum Office’s backlog of asylum cases had grown to over 20,000 pending applications.[28] To ensure that asylum seekers fleeing persecution receive adequate due process, asylum officers are responsible for a lengthy list of job duties. These include conducting interviews with asylum applicants and engaging in a thorough review of an asylum applicant’s oral testimony and written documentation. Asylum officers must also remain abreast of ever-changing asylum laws and policies and country conditions. Several former asylum officers and supervisory asylum officers stated that they simply lacked the time to complete their required jobs. They reported feeling that they needed to rush through their review of asylum applications and decision drafting, even going as far as to recycle old decisions.[29]

Fourth, we found that compassion fatigue and burnout lead to lower grant rates. Former asylum officers and supervisory asylum officers observed that after time they became desensitized to the traumatic stories that accompany most asylum applications. One former asylum officer stated that asylum applicants’ traumatic stories became so “mundane as to lose salience.”[30] Troublingly, this skepticism is apparent to those appearing before the asylum officers. Asylum applicants and their attorneys noted that asylum officers were often dismissive of the asylum applicant’s trauma and were sometimes even combative with applicants. As discussed above, U.S. regulations require that asylum interviews be non-adversarial, meaning that an asylum officer must not argue with or interrogate an asylum applicant.[31] However, many asylum attorneys commented that asylum officers took an adversarial and combative approach with applicants, in direct violation of U.S. law.[32]

Finally, we found that asylum officers disproportionately focus on an asylum applicant’s credibility and small, peripheral details to find “inconsistencies” rather than the salient facts of an applicant’s case.[33] Their search for “inconsistencies” fails to recognize that many asylum seekers have experienced trauma and may suffer PTSD-induced memory loss. Moreover, given the massive asylum backlogs across the country,[34] it is very common for years to go by between the asylum applicant’s traumatic experience in their country and their asylum interview. Those years of waiting can lead to faded memories, particularly with respect to details about specific dates, times and smaller events.

II. Recommendations

We now turn to several recommendations to help address failures in U.S. compliance with international and domestic asylum protections.

First, the Boston Asylum Office must develop enhanced transparency and accountability. We call for a U.S. Government Accountability Office investigation into the Boston Asylum Office and recommend replacing asylum officers and supervisory asylum officers who demonstrate bias and/or a lack of cultural literacy. We also call for a system to mitigate the outsized role that supervisory asylum officers play in swaying the decisions of asylum officers.

Second, we recommend that all asylum interviews be recorded and that those recordings be made available to asylum applicants and their attorneys, where applicable. Currently, asylum interviews at all asylum offices around the country take place behind closed doors with no recordings or written transcripts. The only written record of what took place during an asylum interview is the asylum officer’s notes. Such notes are often not reflective of what happened during the interview, incomplete, riddled with errors. Absent an accurate recording or transcript, asylum officers may employ improper practices, such as adversarial, insensitive and biased interview techniques, with impunity. This is especially true if the asylum applicant does not have an attorney to bear witness to what occurred during the interview. Importantly, the creation and preservation of accurate records of asylum interviews is critical to ensuring that asylum seekers’ due process rights are realized in immigration court. The asylum officer’s notes and assessments are often used to impeach asylum applicants in immigration court even if they are not reflective of what was said during the interview.

Third, we call for more support and resources for asylum offices. We recommend limiting officers to one interview per day, instituting more rigorous hiring standards, support structures, and mentorship, and improving asylum officer training, with a focus on mitigating bias and racism. We also recommend developing more asylum officer trainings on trauma, compassion fatigue, and cultural literacy.

Fourth, we recommend a paper-based adjudications process that would take the place of the asylum interview when it is clear asylum should be granted based on the evidence submitted. This would help address the backlog and preserve resources by limiting asylum interviews to cases where the outcome is less certain, or where credibility or national security are relevant concerns.

Finally, we recommend ending the “last-in, first-out” (LIFO) policy that prioritizes the adjudication of cases most recently filed.[35] The LIFO policy extends wait times for hundreds of thousands of asylum applicants whose cases have already been pending for years.36

Conclusion

Since this study was released in March 2022, several members of Congress from Massachusetts and Maine called on the Department of Homeland Security Office of Inspector General to investigate the Boston Asylum Office to hold the office accountable.37 To date, an investigation has not yet been granted, and the issues brought to light by this study remain pressing.

The Boston Asylum Office has instituted several changes that we hope will bring it into better compliance with its legal obligations. These changes include increasing the number of asylum officers and overhauling supervisory staff. The office has also added a “section chief” who is tasked with ensuring that asylum officers make legally correct decisions, rather than decisions that respond to pressures from supervisory asylum officers.

While these developments are certainly encouraging, the troubling fact remains that practices at the Boston Asylum Office have diverged significantly from the requirements of U.S. and international asylum protections. To ensure that asylum seekers in New England receive the protection to which they are entitled, monitoring data and practices of the Boston Asylum Office remains necessary. As it stands, stories like Amelia’s who, as mentioned at the outset, was forced to wait over eight years for her asylum case to be finally adjudicated are far too common, leading asylum seekers with meritorious claims to remain in limbo for years, unable to petition for family members who may still be living in danger.

Our sincere hope is that other advocates will use this first-of-its’s-kind case study as a model. Although the study focused on one asylum office, the issues we uncovered reveal larger systemic patterns likely pervasive throughout the United States affirmative asylum system. Given the life-or-death stakes in asylum cases, additional investigation remains imperative to ensure due process is realized for asylum seekers.

* * *

[*] Clinical Professor Anna Welch is the founding director of the University of Maine School of Law’s Refugee and Human Rights Clinic. Sara Cressey is the Staff Attorney for the Refugee and Human Rights Clinic. The authors express our sinceregratitude to the current and former Refugee and Human Rights Clinic student attorneys who devoted countless hours topreparing and writing the report entitled Lives in Limbo: How the Boston Asylum Office Fails Asylum Seekers, upon which thisArticle is based, including Emily Gorrivan (’22), Grady Hogan (’22), Camrin Rivera (’22), Jamie Nohr (’23), and Aisha Simon (’23). The report was also made possible by volunteers Adam Fisher and Alex Beach, who conducted valuable analysis of data collected from U.S. Citizenship and Immigration Services. Finally, the authors are indebted to the Clinic’s collaborators who co-authored the report: the Immigrant Legal Advocacy Project (ILAP), American Civil Liberties Union ofMaine (ACLU of Maine), and Basileus Zeno, Ph.D. The report received the Clinical Legal Education Association’s 2022 Award for Excellence in a Public Interest Case or Project. An extended version of this piece is forthcoming in early 2024 in Volume 57, Issue 1 of the Loyola of L.A. Law Review.

[1] Gene McNary, INS Response to Immigration Reform, 14 IN DEFENSE OF THE ALIEN 3, 6 (1991).

[2] This story is drawn from the stories of multiple clients of the Refugee and Human Rights Clinic. Names and details have been changed to protect the privacy of those clients and preserve confidentiality.

[3] Congress enacted the Refugee Act of 1980 to bring the United States into conformity with international standards for the protection of refugees established by the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status ofRefugees. See S. REP. No. 96-256, at 4 (1980), as reprinted in 1980 U.S.C.C.A.N. 141, 144.

[4] Between March 2020 and April 2022, Border Patrol expelled 1.8 million migrants under Title 42, the vast majority of whom came from Mexico, Guatemala, Honduras, and El Salvador. John Gramlich, Key Facts About Title 42, the Pandemic Policy That Has Reshaped Immigration Enforcement at U.S.-Mexico Border, PEW RESEARCH CENTER (Apr. 27, 2022), https://www.pewresearch.org/fact-tank/2022/04/27/key-facts-about-title-42-the- pandemic-policy-that-has-reshaped-immigration-enforcement-at-u-s-mexico-border/; see also Human Rights Watch, US: Treatment of Haitian Migrants Discriminatory (Sept. 21, 2021), https://www.hrw.org/news/2021/09/21/us-treatment-haitian-migrants-discriminatory (“Title 42 . . . singles out asylum seekers crossing into the United States at land borders – particularly from Central America, Africa, and Haiti who aredisproportionately Black, Indigenous, and Latino – for expulsion.”). Those expelled under Title 42 have faced life- threatening violence either in Mexico or in the countries from which they originally fled. See, e.g., Julia Neusner, A Year After Del Rio,Haitian Asylum Seekers Expelled Under Title 42 Are Still Suffering, HUMAN RIGHTS FIRST (Sept. 22, 2022), https://humanrightsfirst.org/library/a-year-after-del-rio-haitian-asylum-seekers-expelled-under-title-42-are-still-suffering/; Kathryn Hampton, Michele Heisler, Cynthia Pompa, & Alana Slavin, Neither Safety Nor Health: How Title 42 Expulsions HarmHealth and Violate Rights, Physicians for Human Rights (July 2021), available at https://phr.org/our-work/resources/neither-safety-nor-health/.

[5] Transactional Records Access Clearinghouse (TRAC), A Mounting Asylum Backlog and Growing Wait Times (Dec. 22,2021), https://trac.syr.edu/immigration/reports/672/; see also Transactional Record Access Clearinghouse (TRAC), Immigration Court Asylum Backlogs (Oct. 2022), https://trac.syr.edu/phptools/immigration/asylumbl/.

[6] U.S. Citizenship and Immigration Services operates ten asylum offices within the United States. See U.S. Citizenship and Immigration Services, Fiscal Year 2021 Report to Congress: Backlog Reduction of Pending Affirmative Asylum Cases, at 4 (Oct. 20, 2021), available at https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf. The asylum offices are responsible for adjudicating affirmative asylum applications filed by asylum seekers who are not otherwise in removal or deportationproceedings. See 8 C.F.R. § 208.2(a)-(b).

[7] University of Maine School of Law, American Civil Liberties Union of Maine, and Immigrant Legal Advocacy Project, “Livesin Limbo: How the Boston Asylum Office Fails Asylum Seekers” (March       2022), available at https://mainelaw.maine.edu/wp-content/uploads/sites/1/Lives-in-Limbo-How-the-Boston-Asylum-Office-Fails-Asylum-Seekers-FINAL-1.pdf (hereinafter “Lives in Limbo”).

[8] See id. at 3-4. The report’s authors analyzed data pertaining to asylum applications adjudicated by the Boston and Newark Asylum Offices between 2015 and 2020. Unfortunately, available data for decisions made since the end of 2020 suggests that the trends at the Boston Asylum Office have remained consistent. In the first quarter of 2022, the office’s approval rate remained at eleven percent. See U.S. Citizenship & Immigration Servs., I-589 Asylum Summary Overview, at 10, available at https://www.uscis.gov/sites/default/files/document/data/Asylum_Division_Quarterly_Statistics_Report_FY22_Q1_V4.pdf.

[9] Gregg A. Beyer, Establishing the United States Asylum Officer Corps: A First Report, 4 INT’L J. REFUGEE L. 455, 458 (1992).

[10] See Aliens and Nationality; Refugee and Asylum Procedures, 45 Fed. Reg. 37392, 37392 (June 2, 1980); Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 52 Fed. Reg. 32552-01, 32552 (Aug. 28, 1987); Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 53 Fed. Reg. 11300-01, 11300 (Apr. 6, 1988); Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg. 30674-01, 30675 (July 27, 1990).

[11] Id. at 459.

[12] Gregg A. Beyer, Affirmative Asylum Adjudication in the United States, 6 GEO. IMMIGR. L.J. 253, 274 (1992).

[13] Id. at 268-69.

[14] See Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg. 30674-01, 30680, 30682 (July 27, 1990) (to be codified at 8 C.F.R. pt. 208).

[15] Beyer, supra note 6, at 470.

[16] 8 C.F.R. § 208.1(b).

[17] U.S. CITIZENSHIP & IMMIGR. SERVS.: REFUGEE, ASYLUM, & INT’L OPERATIONS DIRECTORATE OFFICER TRAINING, INTERVIEWING – INTRODUCTION TO THE NON- ADVERSARIAL   INTERVIEW,   at   15-16   (Dec.   20,   2019),   available   at https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Intro_to_the_NonAdversarial_Interview_LP_RAIO.pdf.

[18] 8 U.S.C. § 1229a(b)(1) (“The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.”).

[19] Compare Exec. Off. for Immigr. Review, Adjudication Statistics: FY 2022 ASYLUM GRANT  RATES BY COURT, available at https://www.justice.gov/eoir/page/file/1160866/download (showing an asylum grant rate of nearly 30% for the Boston Immigration Court in Fiscal Year 2022), with U.S. CITIZENSHIP & IMMIGR. SERVS., I-589 AFFIRMATIVE ASYLUM SUMMARYOVERVIEW FY 2022 Q1 (OCT 1, 2021 – DEC 31, 2021), at 10, https://www.uscis.gov/sites/default/files/document/data/Asylum_Division_Quarterly_Statistics_Report_FY22_Q1_V4.pdf (showing an asylum grant rate of approximately 11% for the Boston Asylum Office in the first quarter of Fiscal Year 2022). Many asylum offices have approval rates below that of the immigration courts. In fact, the most recent data reported by the Transactional Record Access Clearinghouse revealed that over three quarters of the asylum cases referred to the immigration courts by the asylum offices are granted. See Transactional Record Access Clearinghouse (TRAC), “Speeding Up the Asylum Process Leads to Mixed Results,” (Nov. 29, 2022), https://trac.syr.edu/reports/703/ (“Over three- quarters (76%) of cases USCIS asylum officers had rejected were granted asylum on rehearing by Immigration Judges.”).

[20] See Jasmine Aguilera, A Record-Breaking 1.6 Million People are now Mired in U.S. Immigration Court Backlogs, TIME, https://time.com/6140280/immigration-court- backlog/; TRAC Immigration, Immigration Court Backlog Now Growing Faster Than Ever, Burying Judges in an Avalanche of cases (Jan. 18, 2022), https://trac.syr.edu/immigration/reports/675/;Transactional Record Access Clearinghouse (TRAC), Immigration Court Asylum Backlogs (October 2022), https://trac.syr.edu/phptools/immigration/asylumbl/.

[21] Interview with asylum attorney (November 2021) (“[My client is] having severe depression. This has derailed his life . . . I’ve never seen an individual on the brink of a nervous breakdown. I don’t know if he’ll survive this or overcome this.”).

[22] Data from the Newark Asylum Office provides a useful comparison because prior to the creation of the Boston Asylum Office, the Newark Asylum Office adjudicated affirmative asylum cases for the Boston region with a higher average grant rate than the Boston Asylum Office.

[23] U.S. Dep’t of State, Democratic Republic of Congo 2020 Human Rights REPORT (Mar. 30, 2021),https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/democratic-republic-of-the-congo/.

[24] Interview with asylum attorney (January 2022). See Interview with asylum attorney (August 2021) (“From my experiences with clients in the Boston Asylum Office, there seem to be people at the Boston Asylum Office who set the mindset against certain ethnic groups or nationalities. . . it’s like they default to ‘everybody’s a liar.’”); Interview with asylum attorney (November 2021) (stating that when he appeared in the Boston Immigration Court, some judges have asked why certain cases were referred from the asylum office, expressing exasperation that these cases are adding to the court’s backlog where they were clearly approvable at the affirmative level).

[25] This, in turn, leaves asylum seekers in legal limbo and drains government resources.

[26] Affirmative Asylum Procedures Manual, U.S. CITIZENSHIP AND IMMIGR. SERVS., RAIO, Asylum Division, 27 (May 17, 2016), https://www.uscis.gov/sites/default/files/document/guides/AAPM-2016.pdf (“It is not the role of the SAO to ensure that the AO decided the case as he or she would have decided it. AOs must be given substantial deference once it has been established that the analysis is legally sufficient.”).

[27] Interview with former supervisory asylum officer familiar with the Boston Asylum Office (November 2021) (explaining that the asylum officers and supervisory asylum officers initially hired at the Boston Asylum Office “tended to be people who did not grant [asylum] that much,” and noted that supervisory asylum officers are given “a lot of leeway” in refusing to give the asylum seeker the “benefit of the doubt.”).

[28] U.S. CITIZENSHIP & IMMIGR. SERVS., I-589 AFFIRMATIVE ASYLUM SUMMARY OVERVIEW  FY2022  Q1  (OCT  1,  2021–DEC 31, 2021), at 12, https://www.uscis.gov/sites/default/files/document/data/Asylum_Division_Quarterly_Statistics_Report_FY22_Q1_V4.pdf (listing the Boston Asylum Office’s affirmative asylum caseload as 20,900 as of December 31, 2021). Backlogs in asylum cases are not unique to the Boston Asylum Office. Nationally, the backlog reached a “historic high” during the Trump Administration, with over 386,000 pending applications by the end of fiscal year 2020. HUM. RTS. FIRST, PROTECTION POSTPONED: ASYLUM OFFICE BACKLOGS CAUSE SUFFERING, SEPARATE FAMILIES, AND UNDERMINE INTEGRATION 1-4 (Apr. 9, 2021), https://www.humanrightsfirst.org/sites/default/files/ProtectionPostponed.pdf.

[29] Interview with former supervisory asylum officer (November 2021) (“The abuse or temptation to short circuit and not do a full-fledged asylum interview is great for officers who have a tremendous backlog.”); Interview with former asylum officer (December 2021) (“There is a perverse incentive to rush through cases. Asylum officers have a stack of cases and they must turn them around quickly . . . We interview so many applicants with similar claims and many of us ended up recycling decisions, plugging in new facts and doing similar credibility assessments.”).

[30] Interview with former asylum officer (December 2021) (“This response is absolutely part of the trauma asylum officers hold from doing this work . . . Asylum officers are just exhausted. We are hearing stories of torture and abuse, often involving children, and it’s really exhausting and there’s no real support or even acknowledgement of the impact on us.”).

[31] 8 C.F.R. § 208.1(b); see also U.S. CITIZENSHIP & IMMIGR. SERVS.: REFUGEE, ASYLUM, & INT’L OPERATIONS DIRECTORATE OFFICER TRAINING, INTERVIEWING – INTRODUCTION TO THE NON-ADVERSARIAL INTERVIEW, at 15-16 (Dec. 20, 2019), available at https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Intro_to_the_NonAdversarial_Interview_LP_RAIO.pdf (instructing that AOs are “neutral decision-maker[s]” and thus must maintain a “neutral and professional demeanor even when confronted with . . . a difficult or challenging [asylum seeker] or representative, or an [asylum seeker] whom [the AO] suspect[s] is being evasive or untruthful”).

[32] Former asylum attorney interview (November 2021) (“The client was a survivor of torture and [the officer] laughed multiple times throughout the client telling her story . . . She checked her test messages during the interview . . . The [applicant] was pouring his heart out to this person and she’s laughing . . . and yet when she is engaged, she’s cross examining him up and down.”).

[33] Interview with asylum attorney (January 2022) (“Questions seemed to be a direct way to suggest that the client was not credible . . . it was completely unnecessary and not relevant and really insensitive to the fact that [the client] was super traumatized and trying to recount horrific details about violence they experienced.”).

[34] See U.S. CITIZENSHIP & IMMIGR. SERVS., I-589 AFFIRMATIVE ASYLUM SUMMARY OVERVIEW  FY2022  Q1  (OCT  1,  2021  –  DEC  31,  2021),  at  12, https://www.uscis.gov/sites/default/files/document/data/Asylum_Division_Quarterly_Statistics_Report_FY22_Q1_V4.pdf (listing number of pending asylum cases in each asylum office as of December 31, 2021).

[35] See Archive of Press Release, U.S. Citizenship & Immigr. Servs., USCIS to Take Action to Address Asylum Backlog (Jan. 31, 2018), available at https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog. The LIFO policy was implemented by the Trump administration, “to deter those who might try to use the existing [asylum] backlog as a means to obtain employment authorization,” id., and remains in effect today. See U.S. Citizenship & Immigr. Servs., Affirmative Asylum.
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Somewhere Over a Green Rainbow?—The Overlooked Intersection between the Climate Crisis and LGBTQ Refugees

Somewhere Over a Green Rainbow?—The Overlooked Intersection between the Climate Crisis and LGBTQ Refugees

May 29, 2023 | Online Features, The Impact of International Law on Refugees and Migration

Eoin Jackson*

The international community drafted the UN Refugee Convention (hereinafter ‘The Convention’) with the horrors of the Second World War still fresh in its mind. At the time, LGBTQ people were illegal in most countries and climate change was the stuff of scientific fantasy.[1] Despite this historical context, activists have sought to use the Convention to protect LGBTQ refugees, and now seek to achieve similar success with recognizing climate refugees.

This article analyzes the intersection between recognition of LGBTQ people as refugees and the potential recognition of climate refugees. It intends to briefly sketch out how the climate crisis might exacerbate issues faced by LGBTQ people such that their circumstances may escalate to the point where formal recognition under the Convention would be justified. It also examines how a queer lens could help advance efforts to formally recognize climate refugees under the constraints of the contemporary approach. Part I of this article analyzes the impacts of the climate crisis on LGBTQ refugees. Part II criticizes the recent Human Rights Committee decision in Teitiota v. New Zealand (2020)[2] for failing to consider the differentiated impact of climate change on vulnerable communities. Part III outlines suggestions for future efforts to recognize LGBTQ refugees and intersects these suggestions with the broader movement to recognize climate refugees.

Part I: The LGBTQ Community and the Climate Crisis

LGBTQ people are generally recognized as refugees using the ‘protected social group’ element of the Convention.[3] Most asylum officers will focus on whether there is a nexus between the sexuality/gender identity and persecution of the applicant.[4] Typically, this analysis involves an examination of home countries’ laws, attitudes, and policing of homosexuality/gender identity. Persecution of LGBTQ refugees includes considering how these laws and attitudes impact the capacity of the LGBTQ person to freely express their sexuality/gender identity.[5]

Importantly, many LGBTQ refugees are from the same countries where climate change is likely to have the most immediate impacts. These countries are found in regions of Northern Africa, Southeast Asia, and the Middle East.[6] In other words, countries’ existing poor track records on LGBTQ issues will now face additional social and economic challenges because of climate change.[7] Resources which could have been used to address social progress will need to be diverted to climate mitigation and adaptation measures.[8] This phenomenon most starkly exists in Pakistan, where large government resources will need to be devoted to addressing the impact of devastating floods.[9] However, as tensions increase in countries experiencing extreme weather changes and natural disasters, so does the possibility of groups who deviate from norms being blamed for the crisis. During the Covid-19 pandemic, for instance, LGBTQ people were blamed for the outbreak by leaders in Nigeria, Liberia, and Zimbabwe, among others.[10] Violence and state repression against LGBTQ people also increased during Covid-19, with many LGBTQ centers shut down and people arrested.[11] Should this pattern repeat itself, LGBTQ people will increasingly face demonization under the pretense of being the ‘cause’ of the relevant climate disaster. This demonization may also happen in countries which, at least on paper, have LGBTQ protections or have legalized homosexuality. The instability caused by climate change means that old political norms may break down by extremist forces.[12] Thus, there can be no guarantee that LGBTQ people retain their protected social standing, which may, in turn, complicate efforts to recognize their refugee status when they are from what were previously considered ‘safe’ countries.[13]

The climate crisis exacerbates these issues by inflaming political controversy through the loss of dwindling resources. If LGBTQ people reside on the margins of society, it increases the chance that they will be denied access to these resources. Many LGBTQ communities report a higher rate of homelessness and poverty worldwide.[14] This trend particularly affects the transgender community, who often experience higher rates of hatred and violence, and may struggle to access jobs and affordable housing.[15] As countries experience a loss of wealth, LGBTQ people may be forced to flee to find better economic opportunities.[16] In particular, the violence they experience when accessing resources in an ever-diminishing market may trigger a need to leave what could have been a previously stable country. However, the framework of the Convention does not generally include economic migrants, and it is already difficult to prove that an LGBTQ person merits asylum when there is no direct evidence of political persecution.[17] The climate crisis may therefore raise barriers for LGBTQ people both economically and in terms of being able to adequately convey their need for asylum to officers.

This persecution is also intersectional. Climate change has a worse impact on females, with women being at higher risk of domestic violence and forced migration as the effects of climate change worsen.[18] Similarly, people of color are more likely to reside in areas facing a high rate of pollution or be at greater risk from health problems as a result of climate change.[19] LGBTQ people who exist within this spectrum therefore face multiple hurdles as they tackle the additional challenges posed by intersecting identities. From a refugee law perspective, it also makes it harder to have the LGBTQ aspect of their identity vindicated during the asylum process, as they may seek to confine themselves within the limited scope of the Convention. Gender, for example, is not automatically included under the definition of a refugee but is, like membership of the LGBTQ community, included under the ‘protected social group’ category.[20] This intersectionality means that an LGBTQ woman fleeing climate change focuses on the female aspect of her identity without being able to demonstrate how or why being LGBTQ also exacerbates these effects.[21]

Climate change could therefore heighten the nexus between persecution and identity, such that an LGBTQ person could partially rely on the climate crisis to obtain protection. It could also trigger persecution and a need to flee where none previously existed. However, as noted by Professors Goodwin-Gill and McAdam, it may prove difficult to tie the effects of climate change into persecution while maintaining the nexus between these effects and membership of a protected social group.[22] It is not that the political and economic repression of LGBTQ people would go unrecognized. Instead, there is a theoretical problem that fails to appreciate how these issues were caused by or worsened by the climate crisis.[23] If the cause of the persecution is not viewed holistically, then it is difficult for an asylum system to wholly encapsulate the individuality of the refugee, or the reasoning for justifying an asylum claim. This could, in turn, impact the capacity of the LGBTQ person to communicate how their identity worsened the impact of the instability generated by climate change. If climate change is only viewed in a ‘traditional’ manner (i.e., a focus on physical effects such as increased flooding), there is a risk that the unique difficulties experienced by LGBTQ people will go under-valued. Given how overlooked LGBTQ people often are in the grander scheme of refugee law,[24] climate change may render the compounding of their problems invisible amidst the wider deluge.

Part II: Teitiota v. New Zealand

The UN Human Rights Committee’s recent decision in Teitiota v. New Zealand[25] further indicates the difficulty of incorporating an intersectional perspective on LGBTQ refugees into the climate discourse. In Teitiota, the applicant attempted to halt his deportation back to Kiribati on the basis that the effects of climate change on the island posed a serious threat to life. This argument could have allowed the applicant to reside in New Zealand due to the Convention’s non-refoulement clause. The Human Rights Committee advised that, while it was possible for climate change-based displacement to trigger the non-refoulement clause, the applicant failed in his argument because there was no immediate threat to life.[26]

Of particular interest for this article is the emphasis the Human Rights Committee placed on the requirement that the risk posed by climate change ‘must be personal, that it cannot derive merely from the general conditions in the receiving state, except in the most extreme case.’[27] This requirement is problematic in the LGBTQ context when the decision of the New Zealand High Court (which the Superior Courts and the Human Rights Committee upheld) is examined.[28] Here, the High Court noted that the alleged persecution from climate change was ‘indiscriminate,’[29] and, as a consequence, could not fall within one of the five Convention grounds. In doing so, the Court did not acknowledge the particular vulnerabilities that marginalized people experience because of climate change. Professor Chhaya Bhardwaj correctly views this analysis as ‘surprising,’ given that refusal to allow the applicant to remain in New Zealand also affected his children,[30] whose generation is, per the Inter-Governmental Panel on Climate Change, more likely to be adversely affected by climate change.[31]

The emphasis on human agency when considering persecution under the Convention also complicates LGBTQ climate refugee protection under the existing regime. The Committee asserted that, because the state still had the capacity to engage in ‘intervening acts’ before climate change devastated the island, the threat to life was not imminent.[32] Professor Simon Berhman points out that this ruling leaves states in a dilemma.[33] On the one hand, the state could act to mitigate climate change. However, this intervention is likely to be ineffective considering the limited resources possessed by an individual state, particularly those who struggle with poverty and inequality. In doing so, the state condemns its population to a rejection of refugee claims under the Convention. On the other hand, the state could refuse to act to prevent the worst effects of climate change. This non-intervention results in the eventual decimation of the state’s resources but raises the chance that its population can obtain refugee status. In either scenario, LGBTQ people and, in particular, female members of the LGBTQ community are among the most disadvantaged.[34] They are either likely to bear the brunt of the loss of resources as the state diverts its attention to climate change, or, as Balsari notes, experience the worst effects of the instability arising as a nation falls victim to environmental degradation.[35] These impacts are also gender sensitive, due to the traditional tendency for women to be more dependent on the natural resources of the land, as a result of the lack of broader economic opportunities within oppressive systems.[36] It can also be attributed to the wider trend within political systems in which women are one of the first groups to experience additional discrimination when there are social and cultural tensions caused by a loss of resources.[37]

The intersectional consequences of the Teitiota approach to climate refugees are more apparent when examined in the context of the high threshold set by the Human Rights Committee to demonstrate that there was a serious threat to life. The applicant was obliged to demonstrate that ‘the supply of fresh water [was] inaccessible, insufficient or unsafe’ and that he would be exposed to a ‘situation of indigence, deprivation of food, and extreme precarity’ to make a successful claim.[38] However, as Professor McAdam argues, this threshold is too high where a range of rights are impacted by environmental degradation.[39] In both the queer and female context, insufficient access to food and water could, as documented by Marina Andrijevic, contribute to a rise in domestic violence, or increase the likelihood of falling into poverty as patriarchal structures react to environmental challenges by removing economic opportunities from women and trans communities.[40] Gay men may also experience this backlash and be forced to conform with patriarchal standards by staying in the closet to avoid the backlash experienced by their more visibly vulnerable counterparts. Thus, not only is there a serious threat to life, but broader rights to equality, dignity, and liberty are also impeded.[41] The gender-blind attitude taken in Teitiota will make it difficult for courts to interpret similar cases in a manner that could account for these cumulative violations. If courts view climate change as affecting everyone equally, it is more difficult to justify why LGBTQ people are uniquely vulnerable to its effects. This perspective has consequences for any minority seeking to have their experiences incorporated within modern refugee frameworks.

While Justice Max Barrett correctly praises the Teitiota decision for not precluding a future claim based on the effects of climate change,[42] it does little to ameliorate concerns that the refugee framework ignores intersectional difficulties experienced by people who may be or will be fleeing the effects of climate change.

Part III: The Path Forward for LGBTQ Refugees and Climate Change

Our understanding of the intersection between the climate crisis and its impact on LGBTQ people is in its infancy. While climate refugees remain an unrecognized concept, there are several avenues asylum officers could take to ensure adequate protection of LGBTQ people caught up in the wider stream of migration.

Firstly, a broader interpretation of persecution will assist the general recognition of a climate refugee.[43] Climate inaction will be the central cause of worsening effects of climate change. These increased effects, in turn, will perpetuate social and economic inequity that is consistent with the oppression of LGBTQ people. It will either increase their likelihood of facing a backlash or decrease their ability to advance equality as the state devotes its time and resources to managing climate change-related chaos. Recognizing how and why the effects of climate change are human-oriented, and therefore in line with our perception of persecution, will be an important marker in vindicating climate refugees.[44] There will be a need for this broad lens as more climate refugees flee their homelands in search of safer territory.[45] This should eventually lead to a reckoning in terms of reforming the wider Convention, but for the moment, the broader scope of persecution proposed here may be a useful stop gap.

Secondly, there should be a rejection of the view that climate change is indiscriminate. It is evident, from both a science and policy perspective, that climate change will have a worse impact on women, LGBTQ people, and other marginalized groups. One way in which to reject this view is to adopt the suggestion of Professor McAdam that a ‘range’ of potential rights violations be examined when considering the impact of climate change.[46] A cumulative approach, as opposed to a strict threshold, would also assist LGBTQ  refugees in meeting the harm element to the alleged threat posed by climate change.[47] This approach could draw on the broader cultural and social dynamics that contribute to the disadvantage experienced by LGBTQ people in society. This would mean that LGBTQ people at risk of climate change-driven persecution could have this persecution recognized through citing a range of particular rights they feel have been threatened by the increased effort to challenge their existence.[48] While this solution is imperfect, it is perhaps the most feasible method of recognizing intersectional concerns within the limited framework of the Convention, due to the avoidance of a political battle for wholescale reform.[49] It would also ensure some form of queer lens is present in climate refugee interpretation. Claimants would not only be focusing on the physical effects of climate change, but the resulting social pressure on them to conform with the norms of the devastated vulnerable community. 

Conclusion:

The battle to recognize climate refugees will begin in earnest this decade as the effects of climate inaction come to roost. Those pursuing this goal must ensure that marginalized social groups can see their persecution understood and vindicated through protection. The effects of the climate crisis on the LGBTQ community have thus far been under-researched and under-appreciated. This article intends to shed some light on the future dangers to the LGBTQ community and demonstrate how these dangers could align with Convention interpretations. The Teitiota decision is clearly a pyrrhic victory for climate activists, but it should be built upon. The hope is that any foundation will prioritize feminist and queer lenses to create a nuanced perspective on the climate refugee.

* LL.M. Candidate at Harvard Law School.

[1] Edwin O. Abuya, Ulrike Krause, Lucy Mayblin, The Neglected Colonial Legacy of the 1951 Refugee Convention, 59 J. Int’l Migration 4 (2021).

[2] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

[3] United Nations Refugee Agency, LGBTQI Persons, https://www.unhcr.org/en-us/lgbtiq-persons.html; Volker Türk, Ensuring Protection to LGBTI Persons of Concern, 25 Int’l J. Refugee 1 (2013).

[4] Annamari Vitikainen, LGBT Rights and Refugees: a Case for Prioritizing LGBT Status in Refugee Admissions, 13 Ethics & Glob. Pol. 1, 64 -78 (2020).

[5] Id.

[6] World Meteorological Organization, State of the Climate in Africa 2020 (WMO-No. 1275) (2021); IPCC, Sixth Assessment Report (2022); OECD, Poverty and Climate Change (2015); NW Arnell et al., The Global and Regional Impacts of Climate Change Under Representative Concentration Pathway Forcings and Shared Socioeconomic Pathway Socioeconomic Scenarios, 14 Env’t Rsch. Letters 8 (2019).

[7] S Nazrul Islam, Climate Change and Social Inequality, DESA Working Paper No. 152 (2017).

[8] Id.

[9] Suranjana Tewari, Pakistan Floods Put Pressure on Faltering Economy, BBC News (19th September 2022), https://www.bbc.com/news/world-asia-62830771.

[10] Grame Reid, Global Trends in LGBT Rights During the Covid-19 Pandemic, Hum. Rts. Watch (2021); Graeme Reid, LGBTQ Inequality and Vulnerability in the Pandemic (2020); Hugo Greenhalgh, Religious Figures Blame LGBT+ People for Coronavirus, Reuters (2020).

[11] Id.

[12] Sellers S, Ebi KL, Hess J., Climate Change, Human Health, and Social Stability: Addressing Interlinkages, Environ Health Perspective; Von Uexkull, N., and Buhaug, H., Security Implications of Climate Change: A Decade of Scientific Progress, J. Peace Rsch., 58(1), 162–185, (2021).

[13] See The Williams Institute, LGBTQI+ Refugees and Asylum Seekers: A Review of Research and Data Needs (2022).

[14] The Williams Institute, LGBT People and Housing Affordability, Discrimination, and Homelessness (2020).

[15] United Nations Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, The Impact of the Covid-19 Pandemic on the Human Rights of LGBT Persons (2021).

[16] Johannes Lukas Gartne, (In)credibly Queer: Sexuality-based Asylum in the European Union, Transatl. Persp. on Dipl. and Diversity (2015).

[17] Id.

[18] Phudoma Lama, Gendered Dimensions of Migration in Relation to Climate Change, Journal of Climate and Development (2021);  Chindarkar, Gender and Climate Change-Induced Migration: Proposing a Framework for Analysis, Env’t Rsch. Letters (2012); Brockhaus, Is Adaptation to Climate Change Gender Neutral? Lessons from Communities Dependent on Livestock and Forests in Northern Mali, Int’l Forestry Rev. (2011).

[19] JD Kaufman, Confronting Environmental Racism, Env’t Health Persp. (2021).

[20] Alice Edwards, Transitioning Gender: Feminist Engagement with International Refugee Law and Policy 1950–2010, Refugee Surv. Q. (2010).

[21]Phudoma Lama, Gendered Dimensions of Migration in Relation to Climate Change, J. Climate and Dev. (2021).

[22] Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 4th Edition, Oxford University Press, 2021, 644.

[23] Conor Cory, The LGBTQ Asylum Seeker: Particular Social Groups and Authentic Queer Identities, Geo. J. Gender l. (2019).

[24] Id.

[25] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

[26] For a full overview of the case see Bhardwaj, C. (2021). Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee, 7 January 2020. Env’t L. Rev., 23(3), 263–271.

[27]  Teitiota v. New Zealand, UN Human Rights Committee, (2020).

[28] Teitiota v. The Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125.

[29] Id.

[30] Bhardwaj, C. (2021). Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), 7 January 2020. Env’t L. Rev., 23(3), 263–271.

[31] PCC, Sixth Assessment Report (2022).

[32]  Teitiota v. New Zealand, UN Human Rights Committee, (2020).

[33] Simon Berhman, The Teitiota Case and the Limitations of the Human Rights Framework, Questions of Int’l l. (2020).

[34] Id.

[35] Satchit Balsari, Climate Change, Migration, and Civil Strife, Current Env’t Health Rep. (2020).

[36] UN Environment Program, Women and Natural Resources Unlocking the Peacebuilding Potential (2013).

[37] Id.

[38] Teitiota v. New Zealand, UN Human Rights Committee, (2020).

[39] Jane McAdam, Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement, Am. J. Int’l L. (2020).

[40] Marina Andrijevic, Overcoming Gender Inequality for Climate Resilient Development, Nature Commc’n (2020).

[41] Christel Querton, Gender and the Boundaries of International Refugee Law: Beyond the Category of ‘Gender-Related Asylum Claims’,Netherlands Q. Hum. Rts. (2019).

[42] Justice Max Barrett, Climate Change Migration and the Views in Teitiota, Irish Jud. Stud. (2021).

[43] Jenny Han, Climate Change and International Law: A Case for Expanding the Definition of “Refugees” to Accommodate Climate Migrants, Ford. Undergraduate L. Rev. (2019).

[44] Joanna Apap, The Concept of ‘Climate Refugee’ Towards a Possible Definition, European Parliament Briefing (2019).

[45] Id.; UN High Commissioner for Refugees (UNHCR), Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters, 1 October 2020, https://www.refworld.org/docid/5f75f2734.html.

[46] Jane McAdam, Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement, Am. J. Int’l L. (2020).

[47] Id.

[48] Olajumoke Haliso, Intersectionality and Durable Solutions for Refugee Women in Africa, J. Peacebuilding and Dev. (2016).

[49] Brienna Bagaric, Reforming the Approach to Political Opinion in The Refugee Convention, Ford. Int’l L. J. (2020).

Image Credit: Lauri Kosonen, CC BY-SA 3.0, https://creativecommons.org/licenses/by-sa/3.0/deed.en.