Wednesday, September 2, 2020
U.S. President Trump announced sanctions today against the Prosecutor at the International Criminal Court (ICC), Fatou Bensouda. She earned the United States' disapproval because she is investigating allegations of possible war crimes committed by U.S. soldiers in Afghanistan. The Prosecutor has been placed on the U.S. Specially Designated Nationals (SDN) list and, as a result, is subject to having any assets in the U.S. frozen among other restrictions.
Human rights groups have condemned US sanctions on ICC personnel saying it undermines respect for the international rule of law. The United Nations also has expressed concern and said it is monitoring the situation.
The United States is not a party to the Rome Statute of the ICC and maintains that the Court does not have jurisdiction over the US troops. It is important to remember, however, that the matter is only at an investigative stage. If the United States believes its soldiers have not committed war crimes, it would show much more respect for the rule of law and serve as a positive example by cooperating with the ICC and providing evidence proving their innocence rather than unilaterally imposing sanctions.
Participants are invited to author an essay in English between 2000-3000 words (excluding footnotes and references) examining the impact and usefulness of UNIDROIT instruments either during the COVID-19 pandemic, or in the post COVID-19 economy.
The focus of this essay should be any relevant UNIDROIT instrument such as the UNIDROIT Principles on International Commercial Contracts, the Convention on International Interests in Mobile Equipment and its Protocols, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, the UNIDROIT-FAO-IFAD Legal Guides on Contract Farming, and/or Agricultural Land Investment Contracts, among others.
The top five essay received will be rewarded in the following manner:
- 1st Position: 2,500 € + Publication opportunities
- 2nd Position: 1,500 € + Publication opportunities
- 3rd Position: 500 € + Publication opportunities
- 4th and 5th Position: Publication opportunities
The deadline for submission is 7 September 2020 (CET).
Friday, August 14, 2020
The Law Library of Congress -- the world's largest law library -- will hold a Foreign and Comparative Law Webinar on August 27 on legal developments regarding the use of Artificial Intelligence in the European Union and its Member States, with an emphasis on the role of A.I. in the interactions between citizens and governments. Topics discussed will include predictive policing, facial recognition, and the use of A.I. in administering welfare benefits.
Click here for more information about this free webinar on "Hot Topics in Global AI Regulation." The webinar will be held at 2pm EDT on Thursday, August 27, 2020.
Thursday, August 13, 2020
Monday, August 10, 2020
Special Tribunal for Lebanon -- Postponement of Verdict in HARIRI ASSASSINATION CASE to 18 August 2020
In February 2005, the then-former Prime Minister of Lebanon Rafiq Hariri was assassinated in Beirut in a suicide truck bombing that also claimed the lives of 21 others and injured approximately 220 more.
For the past six-plus years, four alleged members of Hezbollah have been on trial in absentia before the Special Tribunal for Lebanon ("STL"), being prosecuted for their alleged roles in the 2005 bombing.
Originally scheduled for issuance in May 2020, the verdict was deferred due to the COVID-19 pandemic, and was to be handed down last Friday. But because of the devastation wreaked by the massive explosions at the Port of Beirut last Tuesday, the STL postponed issuance of its verdict until Tuesday, 18 August 2020.
The Special Tribunal, which sits in The Hague, was established in 2009 based on a U.N. Security Council resolution. The STL has been described as the world's "first tribunal of international character to prosecute terrorist crimes." The court has also faced criticism of its work and its cost.
Hat tip to Lisa Ridgway
Thursday, August 6, 2020
More good news in the fight against child labor: all 187 member countries of the International Labor Organization (ILO) have ratified Convention No. 182 which bans the worst forms of child labor, such as slavery, sexual exploitation, and use of children in armed conflict. The Convention achieved this milestone in less than two decades, making it the most rapidly ratified treaty in United Nations history. The UN estimates that a shameful 152 million children are involved in child labor worldwide.
For more information, visit this UN news story.
Thursday, July 30, 2020
The U.S. Department of Labor’s Bureau of International Labor Affairs (ILAB) today announced its intent to award up to $8 million in grant funding for up to two technical assistance projects to improve downstream tracing of goods made by child labor or forced labor. The grant will support the recipient’s development of tested supply-chain methodologies, piloted tools for supply-chain tracing, and disseminating supply-chain tracing tools and methodologies to stakeholders.
ILAB’s mission is to promote a fair global playing field for workers in the U.S. and around the world by enforcing trade commitments, strengthening labor standards, and combating international child labor, forced labor, and human trafficking.
Adapted from DOL Release Number: 20-1458-NAT
Monday, July 27, 2020
Given the risks posed by COVID-19, and considering feedback gathered from faculty and deans across the United States, the Association of American Law Schools announced today that it will hold the 2021 AALS Annual Meeting in a virtual format rather than holding the in-person meeting in San Francisco.
Monday, July 20, 2020
The Singapore Convention on the enforcement of mediated settlement agreements will enter into force on December 9, 2020. As Houston Putnam Lowrey puts it, "the initial list of contracting states is modest":
The Convention will also enter into force for Belarus on January 15, 2021.
The United States is among the countries that have signed but not yet ratified the Singapore Convention. The full list of the 46 or so other signatory states can be found on the UNCITRAL website by clicking here.
The text of the convention can be found by clicking here.
Hat tip to Houston Putnam Lowry at Polivy, Lowry & Clayton, LLC in Hartford, Connecticut.
Sunday, July 12, 2020
Friday, July 10, 2020
Fight for Elephant Rights Continues in New York
The NhRP expects to argue its appeal this fall.
New York, NY, July 10, 2020 (GLOBE NEWSWIRE) -- Today the Nonhuman Rights Project (NhRP) filed its appeal in its habeas corpus case on behalf of Happy, a 49-year-old wild-born Asian elephant the NhRP maintains is unlawfully imprisoned in a Bronx Zoo exhibit.
The NhRP is asking the New York Supreme Court, Appellate Division, First Department to recognize Happy’s common law right to bodily liberty, reverse the Bronx Supreme Court’s dismissal of Happy’s habeas petition, and remand the case with instructions to order Happy’s release to The Elephant Sanctuary in Tennessee: “This Court has the duty to safeguard and uphold the fundamental common law liberty interest of autonomous beings,” writes the NhRP in its appellate brief. “As Happy is an autonomous being, this Court must recognize her right to bodily liberty protected by habeas corpus and order her freed.”
In February of 2020, Bronx Supreme Court Justice Alison Y. Tuitt issued a decision in Happy’s case after over 13 hours of oral argument, writing that the Court “agrees [with the NhRP] that Happy is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty … the arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo to an elephant sanctuary.”
However, Justice Tuitt dismissed Happy’s habeas petition because “regrettably … this Court is bound by the legal precedent set by the Appellate Division when it held that animals are not ‘persons’ entitled to rights and protections afforded by the writ of habeas corpus.”
In 2018, as favorably cited to by Justice Tuitt, New York Court of Appeals Justice Eugene M. Fahey issued a concurring opinion in which he urged his fellow judges to treat the question of nonhuman animals’ rightlessness as “a deep dilemma of ethics and policy that demands our attention … The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it.” Justice Fahey also criticized the Appellate Division decisions in the NhRP’s chimpanzee rights cases, making clear they were wrongly decided on the grounds that the NhRP’s clients aren’t members of the human species and cannot bear legal duties.
“The First Department has the opportunity to do the right thing by correcting these serious errors of law and giving Happy a chance to experience the freedom, peace, and dignity of a sanctuary where formerly imprisoned elephants, including those traumatized by solitary confinement in zoos and circuses, have been able to heal and thrive,” said Elizabeth Stein, an attorney with the NhRP and Happy’s local counsel.
In 2005, Happy made history as the first elephant to demonstrate self-awareness via the mirror test. In 2018, she made history again as the first elephant to have a habeas corpus hearing after the NhRP initiated her case, which draws on centuries of common law precedent and robust scientific evidence of elephants’ cognitive, emotional, and social complexity. Five of the world’s most respected elephant experts, including Dr. Joyce Poole and Dr. Cynthia Moss, have submitted unrebutted affidavits in support of Happy’s case.
In May of this year, the Chief Justice of the Islamabad High Court in Pakistan described Happy as an “inmate” at the Bronx Zoo. Relying in part on Justice Tuitt’s decision and Justice Fahey’s opinion, Chief Justice Athar Minallah affirmed “without any hesitation” the rights of nonhuman animals and ordered the release of an elephant from a zoo to a sanctuary.
The Wildlife Conservation Society continues to claim Happy doesn’t get along with other elephants despite abundant evidence to the contrary, including her relationship with an elephant named Grumpy who was euthanized after two other elephants held in the exhibit fatally attacked her.
Alongside the NhRP’s litigation, its grassroots advocacy campaign on behalf of Happy has gained significant momentum and drawn the support of such influential public figures as Queen guitarist Brian May, New York City Council Speaker Corey Johnson, and animal advocates in New York and around the world. Meanwhile, a Change.org petition calling for Happy’s release from solitary confinement has over a million signatures and continues to grow.
The NhRP expects to argue its appeal this fall. The Wildlife Conservation Society has until August 12th to file its reply brief.
CASE NO./NAME: THE NONHUMAN RIGHTS PROJECT, INC. on behalf of HAPPY, Petitioner, v. JAMES J. BREHENY, in his official capacity as Executive Vice President and General Director of Zoos and Aquariums of the Wildlife Conservation Society and Director of the Bronx Zoo, and WILDLIFE CONSERVATION SOCIETY (Appellate Case No. 2020-02581)
Hat tip to Lauren Choplin of the Nonhuman Rights Project. The Nonhuman Rights Project is the only civil rights organization in the United States working through litigation, legislation, and education to secure fundamental rights for nonhuman animals.
Thursday, July 2, 2020
Position: Westerfield Fellow, Loyola University New Orleans College of Law; start date: August 2020
Description: This position is designed for individuals pursuing a career in law teaching and seeking to gain law teaching experience, while being afforded time to devote to scholarly writing and publication. Applicants should have strong academic credentials, writing experience in a judicial clerkship, law practice, or both, and excellent written and oral communication skills. The Fellow will be responsible for teaching legal reasoning, legal research, legal writing, and oral advocacy skills to two sections of first-year law students in a three-credit hour class each semester. The Fellow will teach his or her own classes, but will have the benefit of working under the guidance of an experienced director and with experienced professors in a program in which the director and the professors teaching the courses coordinate the content and pace of the courses. The Fellow will also have student teaching assistants to aid with courses. The Fellow will have a faculty mentor in addition to the other professors teaching in the program. One-year contracts may be renewed. Salary is competitive with fellowships of a similar nature. Westerfield Fellows have been successful in obtaining tenure track positions at a number of ABA accredited law schools.
About the School: The College of Law is located in a largely residential area of New Orleans, one of the most culturally diverse cities in the United States, with unique cuisine, numerous museums and historical sites, and a flourishing arts community. New Orleans is also the seat of the United States Fifth Circuit Court of Appeals, the Federal District Court for the Eastern District of Louisiana, the Louisiana Supreme Court, and the Louisiana Fourth Circuit Court of Appeals, as well as other lower courts. The College of Law has a student population of approximately 500 students, over forty faculty members, active clinics that have spearheaded numerous social justice reform efforts, and summer programs in Europe and Central America. Its location in Louisiana, one of the world’s best known “mixed jurisdictions,” provides unique opportunities for comparative and international law scholarship.
Loyola University New Orleans is an educational institution dedicated to fostering intellectual achievement, personal development, and social responsibility, and it is committed to the human dignity and worth of every person. Loyola University New Orleans strives to create and maintain a working and learning environment in which individuals are treated with dignity, decency, and respect. The University acknowledges and values individual differences, including, but not limited to, the dimensions of race; color; sex; national origin; age; religion; gender identity; transgender status; sexual orientation; ethnicity; disability status; and marital status and citizenship status. We recognize that diversity enriches our social interactions and intellectual lives, and we strongly encourage applications from individuals who will bring diversity to the College of Law.
Dean Louis Westerfield was the first African American dean of the College of Law. He is remembered for promoting diversity and excellence in legal education.
Review of applications will continue until the position is filled. Applications should be emailed to email@example.com.
Hat tip to Mary Garvey Algero.
Sunday, June 28, 2020
Thursday, June 18, 2020
June 20 is World Refugee Day. Sadly, the number of persons who are forcibly displaced from their homes and who seek refuge in another country continues to grow to record levels. The UN High Commissioner for Refugees (UNHCR) estimates the number of forcibly displaced persons to be almost 8o million - twice the number just a decade ago. New regional and international solutions are desperately needed for this growing crisis. For more information, go to the UNCHR website.
Photo of Rohingya refugees from NYT.
Monday, June 1, 2020
Earlier today, the U.S. Supreme Court decided a case involving the Convention Against Torture, Nasrallah v Barr.
Nasrallah is a citizen of Lebanon who became at lawful permanent resident of the U.S. in 2006 at age 18. In 2011, he pled guilty to two counts of receiving stolen property in interstate commerce. The government sought to deport him based on his convictions. The Immigration Judge (IJ) determined that one of his convictions constituted a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1227a(2)(A)(1) and a particularly serious crime. However, the IJ also determined that Nasrallah had established a clear probability that he would be persecuted and tortured if returned to Lebanon because of his Druze religion and Western ties, so the IJ granted him deferral of removal under the Convention Against Torture (CAT). On appeal, the Board of Immigration Appeals held that the IJ erred in granting Nasrallah a deferral and ordered his removal. Nasrallah appealed to the U.S. Court of Appeals for the Eleventh Circuit, arguing that the IJ acted with prejudicial bias and that the BIA erred in finding his crime to be a CIMT as well as a particularly serious crime and in overturning his deferral of removal. The Eleventh Circuit denied the appeal on the ground that the court lacks jurisdiction to review factual findings underlying the removal order under pursuant to 8 U.S.C. § 1252(a)(2).
On appeal, the Supreme Court agreed with Nasrallah that federal courts have jurisdiction to review factual findings underlying an agency’s denial of deferral of removal under CAT. However, the review is the highly deferential substantial evidence standard. As a result, Nasrallah will have another opportunity to seek relief from removal to Lebanon.
Thursday, May 28, 2020
May 29 is the International Day of United Nations Peacekeepers and this year's theme is Women in Peacekeeping: A Key to Peace. This year is the 20th anniversary of UN Security Resolution 1325 on Women, Peace, and Security, which calls for the expansion of the role and contribution of women in UN peacekeeping operations. Since the first UN peacekeeping operation in 1948, over 1 million men and women have participated in 72 UN peacekeeping missions. For more information about the essential role of women peacekeepers, go here.
Wednesday, May 27, 2020
Reminder: Webinar with New ECHR President Judge Róbert Ragnar Spanó: The Principle of Judicial Independence and the Democratic Virtues of Human Rights Law
Here's a reminder that Judge Róbert Ragnar Spanó, the new President of the European Court of Human Rights, will speak on Friday, May 29, 2020, about "The Principle of Judicial Independence and the Democratic Virtues of Human Rights Law." He took office as President of the ECHR on May 18, 2020.
The talk will be followed by questions from the online audience, chaired by iCourts Director, Professor Mikael Rask Madsen.
Judge Spanó is an Icelandic-Italian jurist who was previously Parliamentary Ombudsman of Iceland and Dean of the University of Iceland Faculty of Law.
The live stream will be freely accessible (no registration required) on the iCourts website and will take place May 29th at 14:00 CET (which we calculate to be 7:00 a.m. Central Time for our blog readers in the United States).
iCourts is the Danish National Research Foundation's Centre of Excellence for International Courts. It is a research centre dedicated to the study of international courts, their role in a globalizing legal order and their impact on politics and society. Click here to learn more about iCourts.
Hat tip to Sofie Meinicke at iCourts.
Tuesday, May 26, 2020
We are pleased to share the following guest blog post, authored by Amin R. Yacoub and Mohamed S. El-Zomor
The COVID-19 pandemic has created a turbulence in the international legal order. Most nations have paused their international legal obligations in order to preserve their national legal order. The pandemic has forced many developing countries to halt their bilateral Foreign Direct Investments to preserve their essential national utilities. While the short-term legal impact of the pandemic on globalization seems to be devastating on many levels, we argue that – on the long term – the pandemic might have a positive impact on the international legal order and globalization. Indeed, the observable short-term legal impact of the pandemic seems to give credit to Marti Koskenniemi’s skepticism on global governance, yet we argue that the sudden reversal of the globalization movement during the pandemic does not render humanity’s progression towards globalization undesirable. In other words, countries only adopted nationalistic measures during the pandemic to preserve their national orders not to adopt nationalization as an aim per se – an innate need for globalization still exists among nations.
Short-Term Political and Legal Impact of COVID-19
On the short term, the political and legal impact of COVID-19 seems devastating. Most national courts all over the world have been closed alongside key judicial mechanisms for the protection of human rights, such as the European Court of Human Rights and the immigration courts of the US .
Many international treaties are currently put on hold – presumably under the international law’s state of necessity or force majeure – in order to pursue protective nationalist measures to preserve public health against the pandemic. For instance, despite Canada’s latest ratification of USMCA (NAFTA’s substitution), COVID-19 has disrupted the USMCA implementation in accordance with the agreed timeline.
First, most countries have closed their borders to maintain public health: a protective step that might be interpreted as a tendency towards nationalism. By the same token, some of these restrictions may constitute a breach to international law, leading to a fragmentation of the international community.
Second, the recently updated NAFTA (“USMCA”) – although currently valid on paper – is on pause as the US and Canada have closed their borders, except only for medical supplies. Further, the US intends to place military troops near the border as part of the efforts to stop the spread of COVID-19.
Third, the Foreign Direct Investment (“FDI”) has been drastically impacted by COVID-19. As countries had taken major protective steps to avoid the privatization of essential governmental sectors, foreign investments have been faced with restrictive screening in the EU countries. Moreover, Italy and France have adopted a protective nationalistic approach against foreign capital to preserve public order.
Finally, most nations have unwillingly breached their Bilateral Investment Treaties (“BITs”) as part of their necessity measures against the spread of COVID-19. For instance, Italy had more than 70 bilateral investment treaties in force that might have been simultaneously breached. BITs damage claims might be brought by foreign investors against Italy once the pandemic crisis is over. The damage claims could be rooted on several breaches of BITs’ obligations such as Fair and Equitable Treatment (“FET”), Full Protection and Security (“FPS”), direct and indirect expropriation, and national treatment. However, such claims would likely be defended on a state of necessity ground of International Law, especially that the World Health Organization (“WHO”) has considered the current pandemic a state of necessity.
Marti Koskenniemi has long been a skeptic of the effectiveness of global governance. In his article Global Governance and Public International Law, Koskenniemi stated that: “[n]ational governments govern at home, the commission governs in Europe, and the UN administers a world society – “the international community”… perhaps the thickness of government diminishes as we proceed from the domestic to the global.” The pandemic had revealed that global governance also diminishes as we proceed from the global (e.g., World Health Organization “WHO”) to the domestic (e.g., “US”) especially in times of uncertainty. Put simply, preserving and promoting national interests take priority over complying with global governance when faced with existential threats. The current nationalistic wave against globalization - as a reaction to the pandemic - gives some credit to Koskenniemi’s argument against the effectiveness of global governance, at least for the short term. Lastly, globalization is directly reliant on global governance: it needs global governance as a tool to grow and have an impact on the international playground. Since global governance seems to be seriously threatened by the pandemic, humanity’s progress towards globalization has been jeopardized temporarily.
Long-Term Political and Legal Impact
The long-term political and legal impact of COVID-19 cannot be easily predicted. However, we can speculate what the international legal order would be like in the aftermath of the pandemic.
First, nations would re-open their borders right after the pandemic returning the international legal order to its pre-existing condition. The EU would re-validate the free movements of goods and workers among its member-states. The recently renewed NAFTA would kick-start trade between the US and Canada. The international legal order would be reinstated as soon as the pandemic is over.
Second, most countries would witness a rise in the foreign direct investment on the long run. This is an inevitable result of the currently wrecked economy that resulted from the pandemic. In order to compensate the huge economic losses, countries would have more tendency to encourage foreign direct investments – especially developing countries that do not have enough economic means to drag their own economies out of the pandemic wreckage.
Third, International Investment Tribunals would develop more understanding of other important international law obligations: human rights obligations, the margin of appreciation of States, the public policy argument of States, force majeure, full protection and security, and state of necessity. The reason behind this lies in the humanitarian lens the pandemic had forced into the Arbitral Tribunals’ table and the investor’s world. Adopting such humanitarian lens would likely influence Arbitral Tribunals to create the desired balance in the ISDS system, which is sometimes criticized as a business focused Alternative Dispute Resolution system.
Theoretically, we argue that the world will witness a long-term rise in globalization. As Immanuel Kant had contemplated in his Perpetual Peace: “[e]ven if it were found that the human race as a whole had been moving forward and progressing for an indefinitely long time, no-one could guarantee that its era of decline was not beginning at that very moment… For we are dealing with freely acting beings to whom one can dictate in advance what they ought to do, but of whom one cannot predict what they actually will do . . .” We agree with Robert Howse and Ruti Teitel’s interpretation of Kant’s work. What Kant suggests – according to Howse and Tietel – is that even the greatest reversals of progress do not render it impossible to restart progress towards globalization and cosmopolitanism as a crucial means to advance perpetual peace. By way of analogy, we argue that the reversal of the globalization progress during the pandemic does not render it impossible for nations to renew such progress on the long run. Perhaps, it would not be a luxury, but a necessity to renew the globalization progress in the aftermath of the pandemic’s economic, legal, and social wreckage.
The language of the UN Secretary General on COVID-19 reveals that the world would likely renew its globalization progress after the pandemic. He stipulated that: “[w]ith the right actions, the COVID-19 pandemic can mark the beginning of a new type of global and societal cooperation.” Indeed, we predict that the pandemic might influence the conclusion of new international treaties to deal with unexpected world catastrophes and pandemics in order to guard the international legal order in the future.
In conclusion, notwithstanding the short-term legal impact of the pandemic on nations that had forced them to adopt nationalistic measures against globalization, a new atmosphere of cooperation among nations would arise from the current pandemic. Consequently, countries would have more tendency towards globalization after the pandemic through concluding new international agreements and treaties on the long run as that might be the first step towards healing socially, legally, and economically.
Amin R. Yacoub and Mohamed S. El-Zomor
The Association of American Law Schools' Sections on European Law and Defamation and Privacy Law are convening a jointly organized panel session for the 2021 AALS Annual Meeting entitled, “Comparing Data Protection Structures in the European Union and the United States,” which will be held in San Francisco in January 2021. One or two speakers will be selected for the program from the CFP submissions.
Data privacy, consumers rights, and the integrity of various political, financial and health systems are pressing contemporary issues. With the explosion of social media, data breaches, surveillance, and unauthorized sharing of information between devices occur on a daily basis and raise troubling questions about the security of consumer information and legal protections. This session explores data protection structures in different jurisdictions. The panelists will offer comparative perspectives on approaches adopted in Europe and the United States concerning data collection and privacy. It has been two years since the EU implemented the General Data Protection Regulation. Now, is the perfect time to reflect on the GDPR, its goals, accomplishments, and limitations. In contrast to the EU, the U.S. follows a sectoral approach, deploying a variety of laws and regulatory bodies, at the federal and state levels, to address consumer privacy and data security. The Federal Privacy Act of 1974, The Federal Trade Commission, and the California Consumer Privacy Act of 2018 (CCPA) are examples of U.S. institutions and laws designed to deal with these issues.
The panel will explore questions, including, but not limited to: Do these regulatory regimes function effectively to protect the personal data and privacy of individuals? Has the absence of a general consumer data privacy law at the federal level in the U.S. hindered its ability to adequately protect consumers? How is consent treated under both the EU and U.S. regimes? What constitutional or other legal issues are present in data privacy debates? Are human rights addressed adequately?
Submission Details and Due Date
One or two papers will be selected from the submissions for presentation at the joint program in January. Abstracts of no more than one page in length should be emailed by July 15, 2020 to: Kristen Barnes at firstname.lastname@example.org. In the subject line please write: Submission for AALS Main Panel 2021. Authors selected will be notified no later than September 25, 2020. As is usual with the AALS meeting, authors of selected papers will be responsible for paying their registration, hotel, and travel expenses associated with participation in the AALS meeting.
Hat tip to Randolph Robinson II
Wednesday, May 20, 2020
Human Rights Watch and Refugees International have raised serious concerns that the United States-Guatemala Asylum Cooperative Agreement (ACA) denies asylum seekers the opportunity to apply for asylum in violation of international law. In a joint report, “Deportation with a Layover: Failure of Protection under the US-Guatemala Asylum Cooperative Agreement,” they allege that the ACA allows the United States to send non-Guatemalan asylum seekers, such as those from Honduras and El Salvador, to Guatemala without the opportunity to apply for asylum in the United States. The report further alleges that Guatemala does not qualify as a safe third country because it is unable to provide a full and fair procedure for these persons to apply for asylum or similar protection. According to the report, the United States transferred 939 persons to Guatemala between November 2019 and March 2020, when the agreement was suspended due to COVID-19.
Under Article 33 of the 1951 Refugee Convention, to which both the United States and Guatemala belong, parties are prohibited from returning a person to a territory where his or her life or freedom would be threatened on account of race, religion, nationality, political opinion, or membership in a particular social group (non-refoulement). To comply with this obligation, states must have a process to determine whether a person is a refugee before expelling that person or returning the person to another country.