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AI Automation and Hiring Discrimination: Spain’s Attempt to Resolve the Issue through the Carta Derechos Digitales, or Digital Rights Charter by Michael Cavaliere

I. Introduction

            Without a doubt, artificial intelligence (“AI”) is the future of the workplace. AI has increased productivity and efficiency in nearly every industry.[1] Numerous companies have turned to AI in order to improve their hiring process, which has also been referred to as “AI automation”.[2] Recruiters no longer need to spend countless hours sorting through resumes, calling applicants, and scheduling interviews, as AI is able to instantaneously screen and select applicants that best fit a company’s needs.[3] The use of AI automation in hiring has become even more widely adopted due to the COVID-19 pandemic and employers’ need to rely on virtual job applications and interviews.[4] Employers have never been more reliant on AI technology in the hiring process than they are today.

II. AI Automation and the Impact on Human Rights

            However, with this technological revolution comes many questions and potential issues. AI automation may produce, among other things, gender and racial bias in the delivery of online job postings.[5] Biased data, variables, and decisions of employers are often emulated into the programing of their AI hiring systems, rather than eliminated.[6] A recent report published by the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) provides the example, “if a company uses an AI hiring algorithm trained on historic data sets that favour male, white, middle-aged men, the resulting algorithm will disfavour women, people of colour and younger or older people who would have been equally qualified to fill the vacancy.”[7] While many employers may argue for the benefits of AI automation, especially during a pandemic, the risks of bias and discrimination to potential employees is something that cannot be ignored.

Besides the ethical reasons for preventing these immoral hiring practices, instances of AI automation may prove to be illegal in numerous countries around the globe. In the United States, for example, AI automation can implicate the Title VII of the Civil Rights Act of 1964 (“Title VII”), a federal law that protects employees and applicants against discrimination based on certain specified characteristics such as race, color, national origin, sex, and religion, as well as the Age Discrimination in Employment Act (“ADEA”).[8] Further, the use of AI automation could implicate the Americans with Disabilities Act (“ADA”) if an algorithm discerns an applicant’s physical disability, mental health, or clinical diagnosis, all of which are forbidden inquiries in pre-employment candidate assessments.[9]

III. Spain’s Potential Solution through the Carta Derechos Digitales

            While there is no clear solution to prevent the improper use of AI automation, Spain is one country that has led the way in recognizing this problem and providing a proposal to protect individuals from employer bias and discrimination. On July 14, 2021, Spanish President Pedro Sánchez announced the publication and adoption of the Carta Derechos Digitales, or the Digital Rights Charter (“Charter”).[10] The Charter outlines six fundamental rights for the digital world: (1) the right of freedom; (2) the right of equality; (3) the right of participation and shaping the public space; (4) the right of the working and business environment; (5) digital rights in specific environments: and (6) rights of guarantees and efficiencies.[11] The aim of the Charter is to protect the rights of citizens in this new era of AI where these rights present current and extremely serious vulnerabilities.[12] Beginning on June 15, 2020, the drafting process included, not only, the advice and proposals of a group of digital rights experts but also public citizen’s contribution through an open participatory process.[13] While the Charter is not regulatory in nature, it proposes a framework of reference that can be used by the public in navigating and taking advantage of the new digital world.[14] The “pioneering nature” of this Charter relates to rights related to AI, algorithmic non-discrimination, and for an individual to request human oversight or intervention.[15] These rights are broadly applicable to many areas within the digital environment, yet the rights from an employment law perspective stand out.[16] Specifically, the development and use of AI algorithms in the workplace require a data protection impact assessment.[17] This assessment would need to analyze the risks related to the ethical principles and rights related to AI automation hiring, such as the gender perspective and the prohibition of direct and indirect racial discrimination.[18] The Charter provides clear guidance of how employers can steer clear of impermissible hiring practice while using AI automation.

Following the lead of Spain, countries and unions around the world now acknowledge the problem of AI automation and are working towards possible solutions. In April 2021, the European Commission proposed a regulatory framework on AI as a part of wider overall individual protection package.[19] The proposed regulation identifies certain AI systems and technologies by their level of “risk” and subjects them to certain obligations before being introduced to the public.[20] Employment, workers management, and access to self-employment are considered “high-risk,” and the proposed regulation even provides the example of “CV-sorting software for recruitment procedures”.[21] Being a “high-risk” AI system, these recruitment procedures will be subjected to strict obligations, such as risk assessment, high quality datasets feeding the system to minimize discriminatory outcomes, and appropriate human oversight.[22] These obligations flow almost directly from the Charter that was proposed nearly a year earlier, and there is reason to believe European Commission may have looked to Spain for guidance.

The United States is also following Spain’s lead, by ensuring AI automation will not be improperly used in any employment setting. In September 2021, the Equal Employment Opportunity Commission (“EEOC”) announced that it would be monitoring employers’ use of AI in the workplace to ensure compliance with anti-discrimination laws.[23] The EEOC recognizes the potential of AI automation introducing unlawful bias in candidate sourcing, resume screening, and video interview analysis.[24] While the EEOC has expressed its awareness of these issues, it has not yet issued written guidance on the use of AI automation in employment decisions. The EEOC has even acknowledged that the most relevant document, the 1978 Uniform Guidelines on Employee Selection Procedures, is more than 40 years old.[25] Clearly, the U.S. is in need of updated procedures and formal written guidance in the wake of AI automation.

IV. Conclusion

The possibility of employee bias and discrimination in AI automation is widespread and may only be prevented if action is taken and employers are put on notice. As AI automation and other technologies become more advanced, individuals will need to rely on charters, such as the Carta Derechos Digitales, to guarantee their rights are protected.


[1] Key Ways Artificial Intelligence Can Improve Recruiting In The Hiring Process, Forbes (Aug. 27, 2021, 01:15pm EDT),https://www.forbes.com/sites/forbescoachescouncil/2021/08/27/key-ways-artificial-intelligence-can-improve-recruiting-in-the-hiring-process/?sh=5ffd97b32c52.

[2] Id.

[3] Id.

[4] AI in Hiring, BSR, https://www.bsr.org/en/emerging-issues/ai-in-hiring (last visited Oct. 9, 2021).

[5] Id.

[6] Jenny R. Yang, Three Ways AI can Discriminate in Hiring and Three Ways Forward, Urban Wire (Feb. 12, 2020), https://www.urban.org/urban-wire/three-ways-ai-can-discriminate-hiring-and-three-ways-forward.

[7] The Right to Privacy in the Digital Age: Report (2021), Off. of the U.N. High Comm’r for Hum. Rts. (Sept. 15, 2021), https://www.ohchr.org/EN/Issues/DigitalAge/Pages/cfi-digital-age.aspx.

[8] Gary D. Friedman & Thomas McCarthy, Employment Law Red Flags in the Use of Artificial Intelligence in Hiring, ABA (Oct. 1, 2020), https://www.americanbar.org/groups/business_law/publications/blt/2020/10/ai-in-hiring/. 

[9] Id.

[10] Joshua Nelson, Spain President Proposes Digital Rights Charter, Outlining Fundamental Rights of Individuals Online, JURIST (July 24, 2021 02:31:01 PM), https://www.jurist.org/news/2021/07/spain-president-proposes-digital-rights-charter-outlining-fundamental-rights-of-individuals-online/.

[11] Id.

[12] Sánchez presents the Digital Rights Charter with which “Spain is at the international forefront in protecting citizens’ rights”, La Moncloa (July 14, 2021), https://www.lamoncloa.gob.es/lang/en/presidente/news/Paginas/2021/20210714_digital-rights.aspx.

[13] The Government Starts the Process of Preparing a Digital Rights Charter with the Constitution of a Group of Experts, The Spain J. (June 16, 2020), https://thespainjournal.com/the-government-starts-the-process-of-preparing-a-digital-rights-charter-with-the-constitution-of-a-group-of-experts/.

[14] La Moncloa, supra note 12. 

[15] Deirde Tynan, New Digital Rights Charter to Guarantee Citizens’ Rights, EuroWeekly (July 18, 2021), https://www.euroweeklynews.com/2021/07/18/new-digital-rights-charter-to-guarantee-citizens-rights/.

[16] Carlos Gonzalez, Spain: New Act on Digital Rights (“Carta de Derechos Digitales”), DLA Piper (July 22, 2021), https://knowledge.dlapiper.com/dlapiperknowledge/globalemploymentlatestdevelopments/spain-new-act-on-digital-rights-carta-de-derechos-digitales.

[17] Id.

[18] Id.

[19] Regulatory framework proposal on Artificial Intelligence, European Comm’n, https://digital-strategy.ec.europa.eu/en/policies/regulatory-framework-ai (last updated Aug. 31, 2021).

[20] Id.

[21] Id.

[22] Id.

[23] Daniel J. Butler & Kevin J. White, Employers Beware: The EEOC is Monitoring Use of Artificial Intelligence, Hunton Employment & Labor Perspectives (Sept. 21, 2021), https://www.huntonlaborblog.com/2021/09/articles/eeoc-developments/employers-beware-the-eeoc-is-monitoring-use-of-artificial-intelligence/. 

[24] Id.

[25] Id.

Standardization of Evidence Retrieval from of Mass Grave Sites by Douglas Brady

I. Introduction

Whether discovered in the aftermath of a regime change or when a party takes control over territory during a conflict, mass graves are the culmination of immeasurable harm and human suffering, indicating possible war crimes or crimes against humanity.[1] In 2018, after the Islamic State was driven out of its de facto capital city of Raqqa, Syrian workers found at least nine mass graves in and around the city.[2] As recently as July 2021, the Governor of Turkey’s bordering province announced that officials discovered a mass grave in the nearby Syrian province of Afrin, alleging that YPG Kurdish forces were responsible—although Agence France-Presse, who broke the story, was unable to verify the claims.[3]

The preservation of documentary evidence from mass graves allows for its use during criminal prosecution and brings closure to victims’ families and communities.[4] Currently, there is not a uniform international standard for protecting and investigating mass graves.[5] Although witness testimony is important for the International Criminal Court’s (“ICC”) criminal prosecution stemming from mass graves, documentary evidence can corroborate witness testimony and provide further independent proof of wrongdoing.[6] Additionally, preserving evidence from mass graves helps to identify victims and to provide answers to families.

II. Rome Statute and the Bournemouth Protocol

In July 2002, the Rome Statute established the ICC, which has jurisdiction over the crime of genocide, crimes against humanity, and war crimes.[7] The ICC has jurisdiction only over states which are a Party to the Statute and provides for the prosecution of individual persons who commit, order, aid, or otherwise contribute to the commission of these crimes—regardless of their official capacity.[8] In trials, the ICC presumes innocence, and the burden of proof rests with the prosecutor who must establish guilt beyond a reasonable doubt to convict.[9]

In regard to documentary evidence collected by a State, the ICC will not apply the State’s national law, but will instead follow the Rome Statute and the ICC’s Rules of Procedure and Evidence.[10] Under these Rules, the Pre-Trial Chamber has to authorize the prosecutor to investigate and may take such measures as may be necessary to ensure the efficiency and integrity of the proceedings regarding, among other things, examining, collecting, or testing evidence, “which may not be available subsequently for the purposes of a trial.”[11] However, documenting and ensuring the integrity of mass grave evidence may need to occur before an ICC investigation—ideally upon any mass grave’s discovery.

Recently, Melanie Kinkner and Ellie Smith, professors at Bournemouth University specializing in international law and human rights, created the Bournemouth Protocol on Mass Grave Protection and Investigation (“Protocol”)as a set of common standards and a chronology for the entire process across various disciplines.[12] The Protocol defines mass grave (previously undefined in international law) and provides the international legal basis for their proposals.[13] The authors acknowledge that mass graves are context-specific and accompany many challenges because “mass graves typically occur within highly-charged political and/or cultural context, which may still be ongoing at the time of investigation.”[14] Nevertheless, the Protocol highlights the value of uniform standards for mass grave investigation to create evidential links to perpetrators. The Protocol also warns that judicial investigation and prosecution should not take priority over the totality of mass grave investigation and protection efforts.[15]

III. International, Impartial and Independent Mechanism (“IIIM”) in Syria

In late 2016, the United Nations General Assembly established the first International, Impartial, and Independent Mechanism (“Syrian Mechanism”) to facilitate and expedite in the investigation and prosecution of genocide, crimes against humanity, and war crimes in the Syrian Civil War by collecting, consolidating, preserving and analyzing evidence.[16] However, the Syrian Mechanism complements local NGOs and the Independent International Commission of Inquiry on the Syrian Arab Republic, all of whom are primary sources of evidence gathering.[17] The Syrian regime does not allow the Syrian Mechanism to enter the country.[18] Thus, the Mechanism instead focuses primarily on digital documentation.[19] Short of doing the prosecuting itself, the Syrian Mechanism carries a prosecutorial standard for evidence gathering to service future tribunals.[20]

Ultimately, the evidence collected by an IIIM needs to be admissible in various courts for this new mechanism to prove effective.[21] For example, in the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, prosecutors introduced documentary evidence that helped lead to various convictions.[22] As of this writing, the Syrian Mechanism is still finalizing its Internal Procedures and Methods of Work, highlighting the need for universal standards for evidence collection, especially in event that mass graves are uncovered.[23] The Syrian Mechanism’s most recent report to the U.N. addressed the challenges brought on by the COVID-19 pandemic: “[b]ecause of the sensitivity of the matters at issue and the legitimate security concerns of many sources, not being to conduct in-person meetings and converse directly has had an impact on the pace of the Mechanism’s new engagements and cooperation discussion.”[24]

IV. Conclusion

The uniform use of the above-mentioned mechanisms could standardize the documentation of incidents, including atrocities such as mass graves, to push for accountability during the conflict instead of after a peace agreement.[25] In 2018, the U.N. Human Rights Council established the Independent Investigative Mechanism in Myanmar with a mandate much like that of the Syrian Mechanism.[26] This suggests that comparable mechanisms will be implemented during other current and future conflicts.

Still, challenges concerning evidence collection and protection of mass graves remain. Because these mechanisms often have limited access to the countries experiencing conflict and local resources may have limited capacity and resources, a uniform standard regarding mass graves could maximize the utility of these efforts to achieve future accountability and justice in the ICC or other courts.


[1] See Rome Statute of the International Criminal Court, Preamble, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].

[2] Zeina Karam, Hundreds of Bodies Exhumed from Mass Grave in Syria’s Raqqa, Assoc. Press (Nov. 27, 2018), https://apnews.com/article/01c50935854b425295ef8731cdfc42a4 (“The Panorama mass grave . . . is one of the largest of nine mass graves discovered so far, and is believed to contain around 1,500 bodies.”).

[3] Turkey Says Mass Grave Found in Syria’s Afrin, Al Jazeera (July 15, 2021), https://www.aljazeera.com/news/2021/7/15/turkey-says-mass-grave-found-in-syrian-region.

[4] Melanie Kinkner and Ellie Smith, The Bournemouth Protocol on Mass Grave Protection and Investigation, Int’l Comm’n on Missing Pers. 3 (Dec. 9, 2020), https://issuu.com/bournemouthuniversity/docs/the_bournemouth_protocol_on_mass_grave_protection_ [hereinafter Bournemouth Protocol]; see also Melanie Kinkner and Ellie Smith, Universal Standards for Investigation of Mass Graves, EJIL:Talk! (Apr. 1, 2021), https://www.ejiltalk.org/universal-standards-for-investigation-of-mass-graves/?utm_source=mailpoet&utm_medium=email&utm_campaign=ejil-talk-newsletter-post-title_2.

[5] Id.

[6] Alexa Koenig et al., Access Denied? The International Criminal Court, Transnational Discovery, and the American Servicemembers Protection Act, 36 Berkeley J. Int’l L. 1, 7 (2018).

[7] Rome Statue, supra note 1, at art. 5.

[8] Id. at arts. 12, 13, 15, 25, 27 (explaining that the ICC acts when referred by a state party, the Security Council, or when the Prosecutor seeks approval from the Pre-Trial Chamber).

[9] Id. at art. 66.

[10] Id. at art. 69; see generally Rules of Procedure and Evidence, Int’l Crim. Ct. (2013),https://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf.

[11] Id at art. 56.

[12] Bournemouth Protocol, supra note 3, at 3.

[13] Id. at 4–5.

[14] Id. at 7.

[15] See id. at 16.

[16] G.A. Res. 72/48, ¶ 4 (Dec. 21, 2016).

[17] See U.N. Secretary-General, Implementation of the Resolution Establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic Since March 2011, ¶ 30, U.N. Doc. A/71/755 (Jan. 19, 2017).

[18] Rebecca J. Hamilton, Social Media Platforms in International Criminal Investigations, 52 Case W. Res. J. Int’l L. 213, 217 (2020) (internal citation omitted).

[19] Id.

[20] Ayana A. Bowman, Reframing Sexual and Gender-based Violence: Proposed Practices for an International Criminal Tribunal in Syria,34 Temp. Int’l & Comp. L.J. 161, 165 (2019) (citing Alex Whiting, An Investigation Mechanism for Syria: The General Assembly Steps into the Breach, 15 J. Int’l Crim. Just. 231, 231-32 (2017)).

[21] Natalia Krapiva, The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence Be Admissible in European Courts?, 107 Cal. L. Rev. 1101, 1107, 1118 (2019). Other U.N. investigative teams utilize “the highest possible standards[] to ensure the broadest possible use” consistent with UN policies and best practice. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL, Collect, Store, and Preserve Evidence to the Highest Possible Standards, https://www.unitad.un.org/content/collect-store-and-preserve-evidence-highest-possible-standards.

[22] See Alexa Koenig et al., supra note 6, at 8.

[23] Methods of Work, Int’l, Impartial and Indep. Mechanism, https://iiim.un.org/working-methods/ (last visited Oct. 9, 2021).

[24] U.N. Secretary-General, International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, ¶ 27, U.N. Doc. A/75/743 (Feb. 12, 2021).

[25] Jessica Doumit, Accountability in A Time of War: Universal Jurisdiction and the Strive for Justice in Syria, 52 Geo. J. Int’l L. 263, 283 (2020).

[26] Human Rights Council Res 38/2, U.N. Doc. A/HRC/RES/39/2, at ¶ 22 (Oct. 3, 2018).

Potential Impact of U.S. State and Local Employee Protection of Foreign Au Pairs by Matthew Finegan

I. The Department of State’s Proposed Rule Amending the Exchange Visitor Program

The U.S. Department of State (“State Department”) has recently proposed to amend existing Exchange Visitor Program (“Program”) regulations governing foreign au pairs.[1] If promulgated, this federal regulation would effectively preempt state and local labor protections, forcing foreign au pairs to rely solely on the Program’s guidelines for worker protections.[2] The State Department announced that these proposed amendments serve to “affirm its longstanding view that … state and local laws that are inconsistent with [federal au pair regulations] … pose an obstacle to the achievement of the objectives of the program.”[3] Indeed, this longstanding view was first proposed by the Trump administration, who first began working on a rule that would subject foreign au pairs to uniform conditions regardless of any state laws.[4] Although the Biden and Trump administration have shared a litany of different foreign policy objectives in the past, it is clear that the Biden administration plans to effectively carry-out the Trump administration’s unfinished plans for the Program by effectively shielding foreign au pairs from state and local labor protections.[5]

II. The Au Pair Process in General

Colloquially, an “au pair” is a foreign visitor who travels to the United States to acquire a better understanding of American life and culture, while living with and caring for young American families and children.[6] Currently, au pairs are able to become “live-in childcare workers” by being recruited by an approved “sponsor company” and obtaining a J-1 exchange visitor visa.[7] A J-1 exchange visa is a “nonimmigrant visa” for “individuals approved to participate in exchange visitor programs in the United States.”[8] Upon issuance of J-1 exchange visitor visa by the U.S. Bureau of Consular Affairs, the au pair is then “matched” with an American family through a sponsored company.[9] After paying an agency fee, the American family has the right to employ au pairs and pay them directly for their services.[10] Au pairs are generally required to work and live with their families for a duration of twelve months, with the possibility to extend their employment for up to two years.[11]

III. Federal and State Minimum Wage Requirements Relating to Au Pairs

Although the Fair Labor Standards Act (“FLSA”) requires minimum wage of $7.25 per hour for working persons on the federal level, regulations implemented by the State Department only require families to pay their au pairs $4.35 per hour.[12] This deviation represents the cost of room and board, which is deducted from their federal minimum wage.[13] On top of deductions, the Program only allows au pairs to work up to 45 hours per week; this effectively caps an au pair’s weekly salary at $195.75 with no opportunity for overtime pay.[14] Moreover, many states also have minimum wage laws, which yield higher minimum wage requirements and more worker protections.[15] For example, in New York City, the minimum wage requirement to be paid by “large” and “small” employers is $15.00 per hour.[16] Therefore, an au pair living with and working for an American family domiciled in New York City could theoretically be paid $15.00 per hour, minus deductions for room and board.[17]

However, the Biden administration’s proposed amendment to the Program will inevitably foreclose any opportunity or legal argument for such an entitlement, as the regulations promulgated through the State Department would reign supreme. This proposal comes at an especially distressing time because many labor advocates believed there would be a larger shift towards enhancing current labor protections. Certain states, such as Massachusetts, had begun enacting legislation specifically allowing au pairs to earn minimum wage while working and living within their jurisdiction.[18]

IV. Labor Advocates v. Approved Sponsor Companies

The Biden administration’s position has the full support of the Washington-based Alliance for International Exchange (“WAIE”) which represents all 12 au pair sponsor companies.[19] Ilir Zherka, executive director of WAIE, noted that the Program is a “public diplomacy tool”[20] which gives credence to the idea that the au pair program is simply a “cultural exchange program” rather than a “domestic worker program.”[21] Furthermore, Zherka cited a WAIE-commissioned survey which concluded that just eleven percent of former au pairs were unsatisfied with the Program, implying that the State Department’s oversight and regulations of the Program are adequate to protect their individual and employment interests.[22]

Not convinced about the State Department’s ability to fully protect au pairs are labor advocates and lawyers, such as David Seligman.[23] He stated that the rule is “a really dangerous threat to states and cities that have, over the past several decades, made great, important strides to protect workers.”[24] Adversaries to the proposed rule, including Seligman, call into question not only the obvious foreclosure of state and local protections, but the State Department’s apprehension to delegate the responsibilities of implementing the Program to the U.S. Labor Department, which is arguably a more appropriate and knowledgeable entity on workers’ rights.[25] Au pair advocates have also implied that the State Department’s argument that the educational component, being the ‘essential mechanism’ of the Program, is merely pretextual because the educational component is “minimal” and should not be used to justify employer families from paying the prevailing wage in their cities.[26]

V. Practical Considerations and Concerns

Unfortunately, lost in this battle of regulatory authority is the disparate impact this proposed amendment would have on the young and mostly female workforce.[27] Coupled with the practical and administrative concerns regarding the State Department’s ability to provide adequate oversight of the Program, there has been a long, appalling history of rampant exploitation.[28] Many foreign au pairs have alleged being subjected to threats of deportation and, more heinously, been subjected to physical, sexual, and financial abuse.[29] Although lobbying efforts and public policy considerations ultimately prevail in the political spectrum, it is important to keep in mind that these childcare workers, without adequate protections, are fully reliant on the families they live with and are constrained to their visitor visas for work.[30]

Currently, the proposed amendment has yet to reach the White House’s regulatory review office, meaning it is at least months away from implementation.[31] Regardless, if this proposed rule becomes effective, au pairs will have to solely rely on the U.S. government for further worker protections in the future.


[1] U.S. Dep’t of State, Bureau of Consular Affairs, Exchange Visitor Program – Au Pair Federal Regulation Preemption of State and Local Law, Off. of Info. and Regul. Affs. (July 2020), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=1400-AF12.

[2] Id.

[3] Id. (explaining that from U.S. government’s perspective, the Program is primarily founded on the cultural and educational experience, rather than the employment component).

[4] Blake Harper, Biden’s State Department Will Strip Au Pairs of Labor Rights, Fatherly (July 16, 2021, 1:17 PM), https://www.fatherly.com/news/biden-administration-au-pair-labor-rights/.

[5] Andrew Harris et al., State Department’s Federal Au Pair Oversight Plan Draws Critics, Bloomberg Law (July 16, 2021, 5:41 AM), https://news.bloomberglaw.com/daily-labor-report/state-departments-federal-au-pair-oversight-plan-draws-critics.

[6] Au Pair Program 101, Au Pair Int’l (last visited Sep. 7, 2021), https://www.aupairint.com/au-pair-program-101/.

[7] Harris et al., supra note 5.

[8] Overview of Exchange Visitor Visa Program, U.S. Dep’t of State, https://travel.state.gov/content/travel/en/us-visas/study/exchange.html (last visited Oct. 9, 2021).

[9] Id.

[10] Allyson Downey, Here’s The Plan – How Much an Au Pair Costs, http://herestheplanbook.com/au-pair-cost (last visited Oct. 9, 2021).

[11] Frequently Asked Questions, Au Pair Int’l, https://www.aupairint.com/frequently-asked-questions/ (last visited Oct. 9, 2021). Au Pair International is one of the 12 approved agencies that help govern and place au pairs with participating American families. Regarding the blog post, this agency is used as a general example as some agency procedures and protocols may vary.

[12] Overview of Federal Minimum Wage Requirements, U.S. Dep’t of Labor, https://www.dol.gov/agencies/whd/minimum-wage (last visited Oct. 9, 2021); see 22 C.F.R. § 62.31(j)(1) (2008).

[13] Harris et al., supra note 5.

[14] See 22 C.F.R. §62.31(c)(2) (2008).

[15] U.S. Dep’t of Labor, supra note 12.

[16] N.Y. Lab. Law § 652 (Consol. 2017).

[17] See New York Exempt Employees: What you need to know, BLR, https://www.blr.com/Compensation/Compliance/Exempt-Employees-in-New-York (last visited Oct. 9, 2021).

[18] Harper, supra note 4.

[19] Harris et al., supra note 5.

[20] Id. (explaining that the phrase “public diplomacy tool” has underlying significance because 22 U.S.C. §§ 2561(a)(4) & (b)(3) conjunctively authorize the State Department to promulgate rules and regulations for the implementation of United States public diplomacy polices, which includes cultural exchange programs).

[21] Id.

[22] See id.

[23] Id.

[24] Id.

[25] Id.

[26] Harris et al., supra note 5.

[27] Id.

[28] Harper, supra note 4; Harris et al., supra note 5.

[29] Harper, supra note 4.

[30] Id.

[31] Harper, supra note 4; Harris et al., supra note 5.

The Right of Protest Under International Law by: Stephanie Weaver

As the United States has gone through months of protests surrounding police brutality and racism, the right to protest has been in the forefront of people’s minds. Although this is one of the core protections under the First Amendment in the United States, one might wonder if the right to protest is protected under international law. This post will explore that question, using specific examples of protests happening around the world to illustrate how international law intersects with the fundamental right to protest. 

I. International Law Protecting the Right to Protest

            One of the ways international law is governed is through treaties. The right to protest is recognized by international instruments, including major human rights treaties.[1] One particular treaty that has been ratified by 173 state parties is the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right of peaceful assembly, encapsulated in Article 21.[2] Article 21 states “[t]he right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”[3]

            Although Article 21 protects the right to protest and should therefore extend this right to all ratified parties, this does not necessarily guarantee that the parties will comply.[4] Additionally, the enforceability of human rights treaties in general is a difficult topic. In the United States, the ICCPR holds little weight domestically, because although the Senate ratified it, the treaty is non-self-executing.[5] This has the effect that the ICCPR does not create a cause of action by itself in the United States.[6]

            Another issue with the enforceability of and compliance with Article 21 is that its language is very broad. Recently, the United Nations Human Rights Committee adopted General comment No. 37 on the right of peaceful assembly.[7] General comment No. 37 is the first comment from the Human Rights Committee dealing specifically with Article 21.[8] A few aspects of this comment help clarify what might otherwise be in question regarding the meaning behind the broad language in Article 21. One aspect addressed is the scope of protection for assemblies. The comment makes clear that any peaceful assembly falls within the scope of protection, “peaceful” and “non-violent” are interchangeable, and there is a presumption of peacefulness when considering whether an assembly is peaceful or not.[9] The comment also notes that violent actions by some (whether members of the protest or agents acting on behalf of the authorities) do not taint the entire assembly’s peacefulness.[10] This comment comes at an opportune time, as it seems to directly address the many protests around the globe.

II. Protests in the United States

            The United States has had a long history of using peaceful protest as a Tensions surrounding police brutality and racism in the United States reached a peak this summer, amid fierce protests ignited—at least in part—by the brutal killing of George Floyd by police officers on May 25th, 2020.[11] Protests sparked in at least 140 cities across the United States[12] and lasted throughout the summer, even through the coronavirus pandemic that was silently raging cities all across the United States.[13]

            Although the vast majority of these protests were peaceful, the response by law enforcement was anything but.[14] Law enforcement responded to these protests with exactly what was being protested against: police brutality. This includes both injuries and deaths which have resulted from the use of “tear gas, rubber bullets, and other crowd-controlling tactics” by police.[15] Of particular concern is the fact that since May 26, 2020 (the day after Mr. Floyd’s death), over 400 instances have been reported of police “detaining, assaulting, or otherwise preventing journalists from performing their duties.”[16] The response by police officers in the United States to these protests is in direct contravention with both Article 21 of the ICCPR, general comment No. 37, and international norms regarding the use of less lethal weapons.[17] The United States has been under the microscope for this response, but its non-compliance with international human rights laws and standards is not particularly new or surprising, especially considering the United States’ practice of ratifying treaties as non-self-executing, making it difficult (if not impossible) for the United States to be held liable for not following its terms.[18]

III. Protests in Indonesia

            One example of recent protests in a foreign country involves the political unrest in Indonesia. Indonesian students have been protesting President Joko Widodo and his government, who have supported legislation that was recently passed which would deter the power of the Corruption Eradication Commission (“KPK”), the nation’s anti-corruption apparatus.[19] The KPK was formed to prosecute corrupt government actors in Jakarta, and since its establishment in 2002 has prosecuted hundreds of politicians, businessmen and officials, and is highly respected by the country.[20] However, the new legislation would significantly prevent their ability to carry out that purpose, and fears that this will lead to even more corruption than already exists have caused students and young people throughout the country to protest against the legislative changes.[21]

            Although Indonesia is a member of the United Nations Human Rights Council (which obligates it to uphold “the promotion and protection of civil rights around the globe”) and has ratified the ICCPR (which obligates it to comply with Article 21’s protection of the right to peaceful assembly), the police response to these protests have been violent, in direct contravention of international law. As of September 2019, at least 300 protestors were injured, and one 21 year old student was killed after being shot in the chest.[22] Police have fired tear gas and water cannons at protestors, and videos and images have circulated social media depicting police using excessive force against the protestors.[23] Indonesia has come under scrutiny by human rights groups, with one representative from Amnesty International saying that the actions are “not in accordance with standard procedure” and police “must follow human rights principles while on the job.”[24]

IV. Human Rights Implications 

            The political unrest and subsequent police response in Indonesia and the United States are just two examples in a long line of trending violent responses by police that result in injuring and killing civilians. Mass protests from citizens in Chile, India, Hong Kong, Kenya, South Africa, and many more have taken place over the last year alone.[25] The reasons behind the protests range—from police brutality to COVID-19 responses—but in many of these places the response by the police has be the same: violence.[26] This is problematic not only because of the short term effect on the victims of violence, but the long term human rights implications in using force—especially deadly force—against citizens who are exercising their fundamental right to protest. This has the potential to create a chilling effect on citizens and prevent them from speaking out against injustices for fear that they will be beaten, arrested, or even killed by the very forces that are supposed to protect them. As discussed previously, this fundamental right is protected at the international level, and yet there is a concerning trend of violent responses by police nonetheless. 

            Because of the widespread nature of these incidents, it is very important for the international community to respond in some fashion because many parties are clearly in violation of Article 21 of the ICCPR at a minimum, and if they are not held accountable, it will greatly diminish the effect of treaties on the parties who have ratified them, and allow this conduct to continue unchecked.  


[1] See, e.g.,Universal Declaration of Human Rights, GA res. 217A (III), U.N. Doc A/810 at 71 (1948) [hereinafter UDHR]; International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(d)(ix), G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195 (entered into forceJan. 4, 1969) [hereinafter ICERD]; International Covenant on Economic, Social and Cultural Rights, art. 8, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3 [hereinafter ICESCR]. See also U.N. Human Rights Council, Resolution 15/21, U.N. Doc. A/HRC/RES/15/21 (Oct. 6, 2010) (“everyone has the rights to freedom of peaceful assembly and of association”).

[2] International Covenant on Civil and Political Rights, art. 21, 16 Dec. 1966 [hereinafter ICCPR]; OHCHR Dashboard, Status of Ratification, https://indicators.ohchr.org/.

[3] ICCPR, supra note 2, art. 21.

[4] See, e.g., Eric Posner, The case against human rights, The Guardian(Dec. 4, 2014), https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights.

[5] Kristen D.A. Carpenter, The International Covenant on Civil and Political Rights: A Toothless Tiger?, 26 N.C. J. Int’l L. & Com. Reg.1, 3 (2000). 

[6] Id. at 11.

[7] See ICCPR. General Comment No. 37: Article 21 (Right of Peaceful Assembly), adopted 23 July 2020, UN Doc CCPR/C/GC/37, online: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11 [hereinafter General Comment 37].  

[8] See generally UNHR database, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11.

[9] General Comment 37, supra note 7, at 15, 17.

[10] Id. at 18, 19.

[11] T. Andrew Brown, Peaceful Protests-Not Riots-Bring About Meaningful Change, 92 N.Y. St. B.J.18, 19 (2020).

[12] See Tala Doumani & Jamil Dakwar, Rubber Bullets and the Black Lives Matter Protests, 24 No. 2 Hum. Rts. Brief 77, 77(2020), citing Weiyi Cai et al., Photos From the George Floyd Protests, City By City, N.Y. TIMES (June 1, 2020), https://www.nytimes.com/inter-active/2020/05/30/us/george-floyd-protest-photos.html.

[13] See Brown, supra note 11 at 19.

[14] See Doumani & Dakwar, supra note 12. 

[15] Id. 

[16] Id., citing Laurin-Whitney Gottbrath and Patrick Strickland, Blinded, Arrested: Police Attack Journalists Covering U.S. Protests, AL JAZEERA (June 16, 2020), https://www.aljazeera.com/indepth/features/blinded-arrested-police-attack-journalists-covering-protests-200616023545157.html.

[17] See id. at 79—80; see also ICCPR, supra note 2, art. 21; General Comment 37, supra note 7, at 15, 17.

[18]See Doumani & Dakwar, supra note 12 at 80 (“According to a report published by the International Human Rights Clinic at the University of Chicago Law School, “none of the police use of lethal force policies from the 20 largest U.S. cities during 2017-2018 complied with basic international human rights law and standards.”) (quoting Univ. Chi. L. Sch. Glob. Hum. Rts. Clinic, Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards19 (2020), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1014&context=ihrc);see also Carpenter, supra note 5, at 3, 11. 

[19] Hailey Ferguson, Indonesian Government Proposes Legislation Attacking Anti-Corruption Agency, Brutally Cracks Down on Student Protesters, Hum. Rts. Brief, Spring 2020, at 6, 7.

[20] Febriana Firdaus, What’s driving the latest protests in Indonesia, ALJAZEERA(Sept. 30, 2019), https://www.aljazeera.com/news/2019/09/driving-latest-protests-indonesia-190926090413270.html.

[21] Ferguson, supra note 11.

[22] Febriana Firdaus, What’s driving the latest protests in Indonesia, ALJAZEERA(Sept. 30, 2019), https://www.aljazeera.com/news/2019/09/driving-latest-protests-indonesia-190926090413270.html.

[23] Elisabeth Glory Victory, Reports of Police Brutality Spike in Indonesia… (Jade Poa trans.), VICE(Sept. 16, 2019), https://www.vice.com/en_asia/article/zmjyya/reports-police-brutality-spike-indonesia-570-high-school-students-detained-involvement-protests.

[24] Id.

[25] Thomas Carothers, Global Protests Start to Return, Carnegie Endowment for International Peace, 30 June 2020, https://carnegieendowment.org/2020/06/30/global-protests-start-to-return-pub-82225; Ferguson, supra note 11.

[26] Id. 

National Security and the War on Drugs: Executive Interpretation of the Immigration and Nationality Act by Nicholas J. Orbon

For the past 68 years, the United States has relied on the Immigration and Nationality Act of 1952, also known as the INA, in order to tackle many obstacles including immigration law and matters of national security.[1] The INA provides details regarding removal and detention procedures for aliens, including, those who have been determined by the INA to be members of Foreign Terrorist Organizations (FTOs).[2] Chapter 12 of the INA outlines the parameters of alien classification and specifically provides for definitions of the types of activity that would designate an individual as a “terrorist.”[3]

The provisions of this section of the INA are not only far-reaching but are often politicized. President Trump previously floated the idea of his administration designating many Mexican drug cartels as FTOs.[4] Although the President contemplated this designation, the plan fell through due to the potentially disastrous outcome it would have on diplomatic relations between Mexico and the United States.[5] Today, the Bureau of Counterterrorism in the State Department still maintains a list of all current FTOs.[6]

The Executive Branch’s position on FTO’s, such as the one discussed above, can serve as both a signal an administration’s policy towards tackling potential threats invoking national security and policy in regard to the use and sale of illegal drugs.[7] The Legislative Branch also has, in the past, attempted to amend the INA to designate local gangs within the United States as FTOs.[8] Specifically, legislators have made efforts to amend the INA to apply to local groups such as MS-13 and the Latin Kings.[9] In addressing the previous attempts by Congress to amend the INA to include such provisions, Dan Cadman, author of “In Dealing with the Cartels, Is It Terrorist Designation or Nothing?”details that even with a majority in both houses, bills attempting to expand the INA to reach gangs located within the U.S have never gained significant traction.[10] These efforts raise the question: how much of the drug war can be fought on the federal level through immigration law or policy? The answers to these questions may not lie within the provisions of the INA itself. Instead, they may lie within the history of illegal narcotics in the United States and past attempts to regulate them. 

The “War on Drugs” began in the United States as early as the 1800’s and, at that time, focused on regulating various narcotics such as morphine and opium.[11] Statutes like the Smoking Opium Exclusion act in 1909and the Controlled Substance Act were early examples of Congress and the Executive Branch attempting to thwart the use and sale of these drugs within the U.S through narrowly tailored legislation.[12] Years later, President Nixon continued this trend by officially waging the “War on Drugs,” during his administration.[13] Yet, despite years of litigation, regulation, and campaigning, drug use in the United States is still considerably widespread and takes lives on a regular basis.[14]

Outside of our legislature, the “War on Drugs” is also being fought by state and federal law enforcement through investigations and raids of active cartels located within the U.S.[15] In March of this year, an operation referred to as “Project Python,” led by the Drug Enforcement Administration, yielded 20 kilograms of illegal drugs and $20 million in cash from Jalisco New Generation Cartel, known as CJNG.[16] “Officials say the cartel has hubs in Los Angeles, New York, Houston, Chicago and Atlanta and is a major presence on the Southwest border.”[17] Aside from the amount of drugs and money seized by the government, the investigation also resulted in 600 arrests and over 300 indictments.[18] The Department of Justice commented that the CJNG is still an active presence in many cities across the country.[19] In fact, the CJNG is the most expansive cartel currently in Mexico now has a presence in twenty-four states as opposed to occupying only four in 2010.[20] Decades later, the “War on Drugs” is still being fought and the Trump administration appears to believe that one way to effectuate change is to use the INA, including by designating certain cartels as FTOs.[21]

When addressing the policy considerations underlying the decision to contemplate designating cartels as “terrorist organizations,” it is important to analyze how and why the administration would push for such classification. It is possible that such classification is an effort to use the INA to tackle policy goals under the guise of national security. However, there are many who claim that legislation to fight the pervasive drug culture within the U.S fits into the scope of national security.[22] The amount of illegal drugs smuggled across and between Mexico and the United States annually calls into question our nation’s sovereignty and precedent going forward with the conduct of future administrations.[23] Many Americans might agree that if the federal government feels as though these classifications would be beneficial then they should be able to utilize the INA in this manner going forward. Others might disagree and point to constitutional issues, including, potential due process concerns for individuals who might be labeled under such classification. Although it is difficult to predict how the Biden Administration might attempt to use the INA, it is important to discuss the features of the INA and its role in our political system.


[1] See generallyDepartment of Homeland Security, Immigration and Nationality Acthttps://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act

[2] Immigration and Nationality Act (October 21, 2020) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1189&num=0&edition=prelim

[3] Id. at §1182. 

[4] Bobby Allen, Trump Floating Terrorist Label For Mexican Cartels Brings Fears Of Drone Strikes(November 27, 2019) https://www.npr.org/2019/11/27/783371799/trump-floating-terrorist-label-for-mexican-cartels-brings-fears-of-drone-strikes

[5] Patrick J. McDonnell, Trump suspends plan to classify Mexican cartels as terrorist groups(December 6, 2019) https://www.latimes.com/world-nation/story/2019-12-06/trump-suspends-plan-to-classify-mexican-cartels-as-terror-groups

[6] Supra note 4

[7] See id

[8] Dan Cadman, In Dealing with the Cartels, Is It Terrorist Designation or Nothing?(December 19, 2019) https://cis.org/Cadman/Dealing-Cartels-It-Terrorist-Designation-or-Nothing

[9] Id

[10] Id

[11] History.com Editors, War on Drugs(December 17, 2019) https://www.history.com/topics/crime/the-war-on-drugs

[12] See id.

[13] Id.

[14] Id

[15] See Michael Kosnar, U.S. probe into Mexican drug cartel yields 750 arrests, (March 12, 2020) https://www.nbcnews.com/news/us-news/u-s-probe-mexican-drug-cartel-yields-750-arrests-n1156246

[16] Id.

[17] Id

[18] J. Edward Moreno, Feds arrest over 600 alleged Mexican cartel members(March 11, 2020) https://thehill.com/homenews/administration/487064-feds-arrests-over-600-alleged-mexican-cartel-members

[19] Id.

[20] Id.

[21] Supra note 4.

[22] See id

[23] See id

Ramos v. Wolf: The Recent Ninth Circuit Decision & The Widespread Ramifications by: Torrye Zullo

Understanding the Purpose and Meaning of the Temporary Protected Status Program 

The Temporary Protected Status (TPS) program is “a congressionally created humanitarian program” crafted after the passage of the Immigration Act of 1990.[1] TPS provides temporary relief to nationals of designated foreign countries who cannot safely return in the short term to their home nation as a result of a natural disaster, armed conflict, or other “extraordinary and temporary conditions in the foreign state.”[2] The creation of the TPS program stemmed from concerns with the “extended voluntary departure” (EVD) process, which was the process for how the federal government allowed groups of nationals to remain in the United States for humanitarian reasons prior to TPS.[3] TPS currently protects roughly 317,000 people in the United States from 10 different countries.[4]

The TPS statute authorizes the Secretary of Homeland Security to designate foreign countries for TPS “after consultation with appropriate agencies of the Government” and “only if” the Secretary finds certain criteria met, including (A) “an ongoing armed conflict within the state” where “requiring the return of [nationals of that state] . . . would pose a serious threat to their personal safety; (B) “earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected” where “the foreign state is unable, temporarily, to handle adequately the return [of its nationals] to the state,” and the state “officially has requested [this] designation”; and (C) “extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”[5]

TPS Determinations for Sudan, Haiti, Nicaragua, and El Salvador

In 2017 and 2018, Secretaries of the Department of Homeland Security terminated the TPS designations of four countries: Sudan, Nicaragua, Haiti, and El Salvador.[6]

In 1997, Sudan was designated for TPS because of an ongoing civil war that prevented the safe return of Sudan nationals.[7] In the next 20 years, Sudan was periodically extended or redesignated for TPS fifteen times by prior administrations, based on factors such as forced relocation, human rights abuses, famine, and denial of access to humanitarian agencies.[8] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Sudan.[9] The termination notice concluded that the conflict in Sudan was now “limited to Darfur and the Two Areas (South Kordofan and Blue Nile states) and therefore the designation was no longer necessary.[10]

In 1999, Nicaragua was designated for TPS because of conditions caused by Hurricane Mitch.[11] The designation was then periodically extended or redesignated for TPS thirteen times by prior administrators, based on factors such as “recent droughts as well as flooding from Hurricane Michelle in 2002” and subsequent natural disasters and storms.[12] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Nicaragua.[13] The termination notice concluded, inter alia, that “[r]ecovery efforts relating to Hurricane Mitch ha[d] largely been completed” and the “social and economic conditions affected by Hurricane Mitch ha[d] stabilized” by 2017.[14]

In 2001, El Salvador was designated for TPS because of the devastating effects of three earthquakes.[15] Since then, El Salvador’s designation was extended eleven times by prior administrations, based on factors such as “a subsequent drought” (2002 notice), the effects of Tropical Storm Stan, the eruption of the Santa Ana volcano, subsequent earthquakes, and Hurricane Ida (2010 notice).[16] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for El Salvador.[17] The termination notice concluded, inter alia, that conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.[18]

Lastly, in 2010, Haiti was designated for TPS after a 7.0 magnitude earthquake devastated the country’s population and infrastructure.[19] Since then, Haiti’s TPS designation was extended or redesignated five times, including once by the Trump administration, based on factors such as, “steady rains . . . which led to flooding and contributed to a deadly cholera outbreak.”[20] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Haiti.[21] The termination notice concluded, inter alia, the“extraordinary and temporary conditions relating to the 2010 earthquake that prevented Haitian nationals from returning safely—are no longer met.”[22] 

Ramos v. Wolf

Following the terminations described above, Sudan, Nicaragua, Haiti, and El Salvador (as Plaintiffs) brought suit against acting Secretary of Homeland Security challenging termination of TPS designations for their home countries under Administrative Procedure Act (APA) and Equal Protection Clause alleging that (1) the Secretary’s actions violated the APA by departing from prior practice without an adequate explanation and (2) the decisions were motivated by a discriminatory animus in violation of the Equal Protection Clause.[23]

The Plaintiffs requested the federal district court enjoin the Department of Homeland Security (DHS) “from implementing or enforcing the decisions to terminate the TPS designations for El Salvador, Nicaragua, Haiti, and Sudan.”[24] And in response, the Department of Justice (DOJ) filed a motion to dismiss arguing that Immigration and Nationality Act (INA) Section 244(b)(5) precluded the court from reviewing DHS’s TPS terminations. Subsequently, in October 2018, the court issued a preliminary injunction enjoining DHS from terminating the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador pending the outcome of the litigation.[25]

The district court found,inter alia, that the plaintiffs demonstrated a likelihood of success on the APA claim and equal protection claim.[26] In regard to the APA claim, the plaintiffs claimed the DHS changed the way in which they evaluated the countries, and now only considered whether the original basis for a country’s TPS designation had continued, without examining more recent events in the country that might warrant a TPS designation.[27] In regard to the equal protection claim, the district court found the Plaintiffs provided sufficient evidence to raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations.[28] In particular, Plaintiffs provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.[29]

In its order, the court determined that the plaintiffs would likely suffer irreparable injury absent a preliminary injunction given their established ties to the United States and the potentially unsafe conditions in their home countries, and that a preliminary injunction would serve the public interest.[30]

On appeal by the Government, the Ninth Circuit Court of Appeals reversed the decision of the district court.[31] The Ninth Circuit held (1) plaintiffs’APA claim was not reviewable pursuant to Immigration and Nationality Act’s bar on judicial review of any TPS designation determination, and(2) plaintiffs’ failed to raise a serious question as to the merits of their equal protection claim.[32] In regard to the APA claim, the court addressed the claim as a challenge to the agency’s new and unexplained practice of refusing to consider intervening events in its TPS decisions.[33] The Court found that because “such a claim fundamentally attacks the Secretary’s specific TPS determinations, . . . it is barred from review by section 1254a. Given that Plaintiffs may not raise their APA claim as a matter of law, the claim cannot serve as a basis for the preliminary injunction and we need not consider its likelihood of success on the merits.”[34] Moreover, in regard to the equal protection claim, the court found the plaintiffs failed in their burden of showing a likelihood of success, or even serious questions, on the merits of their claim that racial animus toward “non-white, non-European” populations was a motivating factor in the TPS terminations.[35]  Accordingly, the court vacated the preliminary injunction protected the plaintiffs under TPS.[36]

The Impact of The Ninth’s Circuit Decision            

The Ninth’s Circuits decision impacts thousands. As of 2016, it was estimated by the Pew Research Center that 195,000 individuals from El Salvador have TPS, 46,000 individuals from, 2,550 from Nicaragua and 450 individuals from Sudan.[37] However, many options still exist to protect those who were previously protected under TPS.

Many individuals with TPS may be eligible to remain in the United States because of “their family ties, the length of time they have been in the United States, or the conditions in their home country.”[38] First, TPS holders with close family members who are U.S. citizens or Lawful Permanent Residents (LPRs) may be eligible for adjustment of status under INA § 245.[39] Second, an individual who fears persecution or who would likely be harmed or tortured in his/her home country may apply for asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).[40] Third, a person can apply for cancellation of removal “under INA § 240A(b) if she is in removal proceedings, has been in the United States for 10 years before being served a Notice to Appear (NTA), has had good moral character for the last 10 years, has not been convicted of certain criminal offenses, and has a U.S.-citizen or LPR spouse, parent or child (under 21 years old and unmarried) who would suffer exceptional and extremely unusual hardship if she is removed from the United States.”[41] Fourth, Salvadorans may be eligible for cancellation of removal or suspension of deportation under the Nicaraguan and Central American Relief Act (NACARA).[42]

Other individuals who have lived in the United States with TPS may be eligible for other forms of relief, depending on their personal circumstances. Potential options include a U Visa[43] or  VAWA Cancellation of Removal or Suspension of Deportation[44] for certain abuse victims, a T Visa for victim of human trafficking,[45] and Parole-in-Place (PIP) for close relatives of U.S. military personnel and veterans living in the United States.[46]

TPScan undoubtedly be a vital safeguard for individuals, but in the coming months, it will be important that individuals impacted by the decision in Ramos v. Wolf know of the other vital safeguards that exist for them. 

[1] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020); Pub. L. No. 101-649, 104 Stat. 4978.

[2] 8 U.S.C. § 1254a(b).

[3] See Lynda J. Oswald, Note, Voluntary Departure: Limiting the Attorney General’s Discretion in Immigration Matters, 85 Mich. L. Rev.152, 157–60 (1986).

[4] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).

[5] 8 U.S.C. § 1254a(b).

[6] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).

[7] Designation of Sudan Under Temporary Protected Status, 62 Fed. Reg. 59737-01, 59737 (Nov. 4. 1997). 

[8] See Extension of Designation of Sudan Under Temporary Protected Status Program, 63 Fed. Reg. 59,337-01 (Nov. 3, 1998); 64 Fed. Reg. 61,128-01 (Nov. 9, 1999) (extension and redesignation); 65 Fed. Reg. 67,407-01 (Nov. 9, 2000); 66 Fed. Reg. 46,031-01 (Aug. 31, 2001); 67 Fed. Reg. 55,877-01 (Aug. 30, 2002); 68 Fed. Reg. 52,410-01 (Sept. 3, 2003); 69 Fed. Reg. 60,168-01 (Oct. 7, 2004) (extension and redesignation); 70 Fed. Reg. 52,429-01 (Sept. 2, 2005); 72 Fed. Reg. 10,541-02 (Mar. 8, 2007); 73 Fed. Reg. 47,606-02 (Aug. 14, 2008); 74 Fed. Reg. 69,355-02 (Dec. 31, 2009); 76 Fed. Reg. 63,635-01 (Oct. 13, 2011); 78 Fed. Reg. 1872-01 (Jan. 9, 2013) (extension and redesignation); 79 Fed. Reg. 52,027-01 (Sept. 2, 2014); 81 Fed. Reg. 4045-01 (Jan. 25, 2016).

[9] Termination of the Designation of Sudan for TPS, 82 Fed. Reg. 47,228-02, 47,228 (Oct. 11, 2017). 

[10] Id.

[11] Designation of Nicaragua Under Temporary Protected Status, 64 Fed. Reg. 526-01, 526 (Jan. 5, 1999).

[12] See, e.g., 71 Fed. Reg. at 16,334; 72 Fed. Reg. at 29, 535.

[13] Termination of the Designation of Nicaragua for TPS, 82 Fed. Reg. 59,636-01, 59,637 (Dec. 15, 2017).

[14] Id.

[15] Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14214-01, 14215 (Mar. 9, 2001).

[16] See Extension of the Designation of El Salvador Under the Temporary Protected Status Program, 67 Fed. Reg. 46,000-01 (Jul. 11, 2002); 68 Fed. Reg. 42,071-01 (Jul. 16, 2003); 70 Fed. Reg. 1450-01 (Jan. 7, 2005); 71 Fed. Reg. 34,637-01 (June 15, 2006); 72 Fed. Reg. 46,649-01 (Aug. 21, 2007); 73 Fed. Reg. 57,128-01 (Oct. 1, 2008); 75 Fed. Reg. 39,556-01 (July 9, 2010); 77 Fed. Reg. 1710-02 (Jan. 11, 2012); 78 Fed. Reg. 32,418-01 (May 30, 2013); 80 Fed. Reg. 893-01 (Jan. 7, 2015); 81 Fed. Reg. 44,645-03 (July 8, 2016).

[17] Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654-01, 2654 (Jan. 18, 2018).

[18] Id.

[19] Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476-02, 3477 (Jan. 21, 2010).

[20] See Extension of the Designation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29000-01 (May 19, 2011); 77 Fed. Reg. 59943-01 (Oct. 1, 2012); 79 Fed. Reg. 11,808-01 (Mar. 3, 2014); 80 Fed. Reg. 51,582 (Aug. 25, 2015); 82 Fed. Reg. 23,830-01 (May 24, 2017).

[21] Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648-01, 2650 (Jan. 18, 2018).

[22] Id.

[23] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).

[24]. “Federal District Court Enjoins the Department of Homeland Security from Terminating Temporary Protected Status”, Congressional research service,https://crsreports.congress.gov (Mar. 18, 2019). 

[25] Id.

[26] Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1098 (N.D. Cal. 2018), vacated and remanded sub nom. Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).

[38] “After TPS: Options and Next Steps”, Practice Advisory, immigration legal resource center (June 2018).

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.


Justice Ruth Bader Ginsburg: Going Beyond U.S. Borders by: Sarah Vinci

Justice Ruth Bader Ginsburg has been called many things: a feminist icon, a trailblazer, a brilliant legal mind, a hero and so on. She fought passionately for what she believed in, breaking down barriers and shattering glass ceilings. Her impact went well beyond the United States borders, as she always made it clear that she believed in the Supreme Court’s use of foreign and international law materials to aid in interpreting U.S. law. 

In Justice Ginsburg’s speech “A decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication,Justice Ginsburg said that “The U.S. judicial system will be . . . poorer . . . if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.”[1] She also said that the reason a U.S. court could refer to a foreign and international court decision is because “it bears repetition, not as controlling authorities, but for their indication, in Judge Wald’s words, of “common denominators of basic fairness governing relationships between the governors and the governed.”[2] In this speech, Justice Ginsburg noted all of other commentary that Judges are free to consult; “restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs.”[3] She found that, “If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?”[4]

In 2009, Justice Ginsburg spoke at the Mortiz College of Law at Ohio State University where she said, “I frankly don’t understand all the brouhaha lately from Congress and even some of my colleagues about referring to foreign law.”[5] Justice Ginsburg went on to ask, “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?” and suggested that this “hostility to foreign law references is ‘a passing phase.’”[6]

Not only did Justice Ginsburg discuss the importance of using foreign and international law in constitutional adjudication in her speeches, there is also evidence of her using foreign and international law in Supreme Court decisions. For example, in 2003 Justice Ginsburg joined the majority opinion written by Justice Kennedy in the case of Lawrence v. Texas. In this decision, Justice Kennedy writes about how the European Court of Human rights considered a case with parallels to Bowersand the case at issue.[7] Justice Kennedy discusses an adult male residing in Northern Ireland who desired to engage in consensual homosexual conduct but was forbidden by the laws in Northern Ireland.[8] The Court held that “the laws proscribing the conduct were invalid under the European Convention on Human Rights” and that the decision is “at odds with the premise in Bowersthat the claim put forward was insubstantial in our Western civilization.”[9] Not only was this opinion a landmark decision for LGBTQ individuals, but it also proved to be an important decision in regard to the incorporation of international law into the U.S. jurisprudence. 

Additionally, in 2005, Justice Ginsburg joined the majority opinion written by Justice Kennedy in Roper v. Simmons. There, Justice Kennedy held that “it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. . .”[10] Justice Kennedy also found that “the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”[11] While the case was not decided on an international law basis, Justice Kennedy (as well as Justice Ginsburg who joined the majority opinion) made it clear that international law could (and should) be used as offering persuasive insight.

Furthermore, Justice Ginsburg wrote a concurring opinion in Grutter v. Bollingerwhere she discussed international law. She found that “The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994. . . endorses ‘special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’”[12] Justice Ginsburg reasoned that the majority’s “observation that race-conscious programs ‘must have a logical end point,’ accords with the international understanding of the office of affirmative action.”[13] More specifically, Justice Ginsburg noted the consistency between “the majority’s decision and the principles embraced in international treaties.”[14] This concurrence was powerful for many reasons, one of those reasons being her application of international and comparative law to the interpretation of U.S. law. 

Similarly, in Negusie v. Holder, Justice Ginsburg joined the majority opinion which recognized the role of comparative sources in interpreting the “persecution of others” bar to asylum.[15] The court cites cases from Canada, the United Kingdom, Australia, and New Zealand.[16] A few years later, in the 2015 case Glossip v. Gross,Justice Ginsburg joined Justice Breyer’s dissent regarding the death penalty. Justice Breyer writes that “many nations – indeed, 95 of the 193 members of the United nations—have formally abolished the death penalty and an additional 42 have abolished it in practice.”[17] These are just a few decisions in which Justice Ginsburg either directly or indirectly spoke to the importance of international law. 

There is no question that Justice Ginsburg has been a powerful advocate in legitimatizing the role of foreign and international law materials in deciphering U.S. law. Referencing the Declaration of Independence, Justice Ginsburg has stated that “the U. S. Supreme Court will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility.”[18] She has also quoted Justice O’Connor, who once said that  “other legal systems continue to innovate, to experiment, and to find . . . solutions to the new legal problems that arise each day, [solutions] from which we can learn and benefit.”[19] Justice Ginsburg understood the importance of looking at international law in an increasingly global world, and she helped to open U.S. law to a broader view – one that looks beyond our borders. 

[1] Ruth B. Ginsburg, “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication, 1 FIU L. Rev. 27, 28 (2006).

[2] Id.

[3] Id.at 34.

[4] Id. at 35.

[5] Barbara Peck, Ginsburg Dazzles During Visit to Moritz, The Ohio State University Law School Magazine(2009).

[6] Id.

[7] Lawrence v. Texas, 539 US 558, 560 (2003).

[8] Id. 

[9] Id.  

[10] Roper v. Simmons,543 U.S. 551, 578 (2005).

[11] Id.

[12] Grutter v. Bollinger, 539 U.S. 306, 344 (2003). 

[13] Deborah E. Anker, Grutter v. Bollinger: Justice Ruth Bader Ginsburg’s Legitimization of the Role of Comparative and International Law in U.S. Jurisprudence, in Essays in Honor of Justice Ruth Bader Ginsburg (Feb. 4, 2013) (on file with the Harvard Law School Library);see also Grutter v. Bollinger, 539 U.S. 306 (2003). 

[14] Id.

[15] Negusie v. Holder, 555 U.S. 511, 515 (2009).

[16] Id.seee.g., Canada v. Asghedom, [2001] F.C.T. 972, ¶ 28 (Can.Fed.Ct.); Gurung v. Secretary of State for Home Dept., [2002] UKIAT 4870, ¶¶ 108–110 (U.K.Immigr.App.Trib.); SRYYY v. Minister for Immigration & Multicultural & Indigenous Affairs, [2005] 147 F.C.R. 1, ¶¶ 126–128 (Austl.Fed.Ct.); Refugee Appeal No. 2142/94, pp. 12–14 (N.Z. Refugee Status App. Auth., Mar. 20, 1997).

[17] Glossip v. Gross, 576, U.S. 863, 944 (2015). 

[18] Ruth B. Ginsburg, supra note 1. 

[19] Id. 

COVID-19 Impact on Developed and Developing Nations by: Bridget Sheerin

The COVID 19 pandemic has had lasting effects on the economies of low, middle, and high-income countries. Despite the pandemic being around for less than a year, its impact will last for many years to come. This blog post will examine the background of COVID 19, how COVID has impacted the economies of various countries, and how countries have attempted to rectify economic damage that has resulted from COVID. 

I. Background

COVID 19 began around November of 2019 and is believed to have originated in Wuhan, China.[1]The virus is believed to have been transmitted from an animal source and is now rapidly spreading between humans via airborne droplets.[2] The virus has spread globally since November of 2019 and has infected millions of people.[3] COVID can vary in its intensity, ranging from asymptomatic to severe pneumonia and death.[4] Pertinent statistics relating to the serious of COVID include:

[T]he incidence of respiratory failure in Wuhan was 54% overall; of those patients who died, 98% had respiratory failure compared to 36% of those who survived. All of those who succumbed had sepsis, and 93% had acute respiratory distress syndrome (ARDS), while 42% of survivors had sepsis and 7% had ARDS. Also noted in this Wuhan cohort was a 48% prevalence of comorbidities in those who died, most commonly hypertension, diabetes mellitus, and coronary artery disease. Increasing age was also associated with increased risk of death. Overall, in-hospital mortality rate was 28%, and for those requiring medical ventilation, it was 97%.[5]

II. Impact on Low Income Countries 

Low income developing countries (LIDCs) are in a very difficult position as a result of the COVID 19 pandemic.[6] Without international aid for LIDCs it will be difficult for these countries to prosper in the future.[7] Since the beginning of the COVID 19 pandemic, LIDCs have been impacted by a decrease in exports, lower export prices for many goods most importantly oil, less influx of capital, and a large decrease in tourism.[8] For example, “remittances, for example, that exceeded 5 percent of GDP in 30 (out of 59) LIDCs in 2019. Between April and May, they fell by 18 percent in Bangladesh, and by 39 percent in the Kyrgyz Republic, compared to the previous year.”[9] Such economic repercussions will likely be felt for many years to come. 

One major issue for LIDCs that has resulted from the COVID 19 pandemic is food shortages.[10] According to a recent survey, conducted across 20 African countries, over 70 percent of individuals in these countries are at risk of running out of food if a lockdown were to last more than two weeks.[11]Another large issue that may occur in LIDCs as a result of the COVID pandemic is “scarring” which is “the permanent loss of productive capacity.”[12] Scarring has resulted after previous pandemics and leads to a decrease in health and education, a depression of future earnings, a decrease in production, and economic debt.[13] An example of scarring was shown in Sierra Leone after the 2013 Ebola pandemic when the country did not return to its pre-crisis economic growth path.[14] If scarring results from the COVID pandemic it would result in major setbacks in global Sustainable Development Goals and greater global inequality.[15]

In order to avoid a spike in COVID cases, which would thus lead to a food shortage and scarring, researchers recommend social distancing and contact tracing.[16] “As a broad-based containment becomes difficult to sustain, LIDCs should transition to more targeted measures, including social distancing and contact tracing­– Vietnam and Cambodia are good examples. Policy support should focus on supporting the most vulnerable, including the elderly, and on limiting the health crisis’s long-term fallout.”[17]

III. Impact on High Income Countries

High Income Countries (HICs) have generally responded to COVID 19 with similar tactics.[18] First, HICs entered a suppression phase typically referred to as “flattening the curve.”[19] The goal of phase one is to avoid an overflow of COVID patients in the hospitals, which was seen in Wuhan when the virus began.[20] The next phase commonly followed by HICs is maintaining the initial suppression.[21] Maintenance of the initial flattening of the curve has been done through continued social distancing, identifying cases quickly, and isolating such cases.[22] While these methods of decreasing COVID outbreaks have found success in HICs the next question is whether such methods would be successful LIDCs. 

IV. HIC COVID response in LIDCs

Assistance from the international community will be key to preventing vast COVID outbreaks in LIDCs. Key aspects of support include:

(1) guaranteeing essential health supplies, including cures and vaccines when they are discovered; (2) protecting critical supply chains, especially for food and medicines; (3) avoiding protectionist measures; (4) ensuring developing economies can finance critical spending through grants and concessional financing; (5) ensuring LIDCs’ international liquidity needs are met, which requires international Financial Institutions to be resourced adequately; (6) reprofiling and restructuring debt to resort sustainability where needed, which, in many cases, may require relief beyond G20/Debt Service Suspension Initiative; and (7) keeping sight of the United Nations’ SDGs, including by reassessing needs which the  crisis subsides.[23]

The International Monetary Fund has committed $10 billion interest-free loans for LIDCs fighting COVID.[24] Also, the World Economic Forum has created a COVID action plan in order to engage public and private partnerships in taking action in regards to the pandemic.[25] In addition to financial aid, it is recommended that Nongovernmental organizations (NGOs) contribute with additional support.[26]  For example, “the Lifebox Foundation, partnering with Smile Train and Gradian Health Care, has secured 1650 pulse oximeters for distribution to countries most in need . . . . Massive efforts will be needed to improve oxygen availablility.”[27] In order to ensure against massive fallout for LIDCs as a result of COVID 19 the previously mentioned suggestions should be put in place as soon as possible.

[1] Will the Higher-Income Country Blueprint for COVID-19 Work in Low-and Lower Middle-Income Countries?, GLOBAL HEALTH: SCIENCE AND PRACTICE(Oct. 12, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7326511/

[2] Id. 

[3] Id. 

[4]  Id.

[5] Id. 

[6] COVID-19: Without Help, Low-Income Developing Countries Risk a Lost Decade, IMF BLOG (Oct. 12, 2020), https://blogs.imf.org/2020/08/27/covid-19-without-help-low-income-developing-countries-risk-a-lost-decade/

[7] Id. 

[8] Id. 

[9] Id. 

[10] Id. 

[11] Id. 

[12] Id. 

[13] Id. 

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] The COVID-19 Pandemic: Effects on Low- and Middle-Income Countries, Anesthesia & analgesia(Oct. 12, 2020), https://journals.lww.com/anesthesia-analgesia/Fulltext/2020/07000/The_COVID_19_Pandemic__Effects_on_Low__and.13.aspx

[19] Id. 

[20]Id. 

[21]Id. 

[22] Id. 

[23] IMF Blog, supra note 6. 

[24]GLOBAL HEALTH: SCIENCE AND PRACTICE, supra note 1.

[25] Id. 

26Id. 

27 Id. 


Mexico Investigates Forced Sterilizations in US Detention Centers by: Michelle Artiles

Recent news has pointed to alleged forced hysterectomies of women in US detention centers.[1] Foreign Minister of Mexico, Marcelo Ebrard, is investigating such accusations and is likely to seek recourse on behalf of the victims if the investigation finds credible evidence. There are numerous agencies that focus in an effort to combat forced sterilization, including but not limited to the Office of the High Commissioner of Human Rights, United Nations Agency for Gender Equality and the Empowerment of Women (UN Women), United Nations Children Fund (UNICEF), and the World Health Organization (WHO).[2] These agencies cite a number of treaties and declarations in support of their efforts to put an end to forced, coercive, and otherwise involuntary sterilization. Some of these are the United Nations Declaration on the Rights of Indigenous People, the Convention on the Rights of the Child, and Article 7 of the Rome Statute of the International Criminal Court.[3] Mr. Ebrard is likely to rely on many of these to bring these claims against United States officials. The main issue with a lot of these international documents is that they are not binding, and therefore even if a country has signed on and ratified the agreement, it is very hard to enforce and ultimately seek recourse. Because of this, Mexico is likely to rely on legal precedent to bring claims against the United States. A noteworthy case regarding whether or not Mexico can sue on behalf of their citizens in the United States is Pfizer Inc. v. Government of India.[4] In Pfizer, the Supreme Court held that foreign nations were entitled to sue the United States’ entity Pfizer, despite the fact that respondents were foreign.[5] The case regarded an alleged violation of antitrust laws, and the Court’s rationale affirmed that foreign nations had standing to sue regardless of the fact that they were sovereign.[6] Here, the Sherman and Clayton Acts each provided that the word “person” shall be deemed to include corporations and associations.[7]

In contrast, a United States District Court dismissed a claim because the federalism justifications that might permit states to bring suit parens patriae were absent.[8] In Estados Unidos Mexicanos v. DeCoster, Mexican immigrant workers and the nation of Mexico brought a civil rights action against their employer.[9] The employer, a Maine private entity, was accused of discriminating against and treating its employees unfairly.[10] The court refused to extend the doctrine of parens patriae to a foreign nation absent a clear indication of intent to grant such standing, by the United States Supreme Court or by the other two branches of government.[11] Ultimately, the court held that the plaintiffs in this suit, could find potential relief under the executive branch through the North American Free Trade agreement or other labor agreements.[12]

Parents patriae, or “parent of the nation”, is a common law doctrine that allows a state to protect “quasi-sovereign interests.”[13] The doctrine is a basis for state standing, and allows a state to sue on behalf of its citizens in the interest of the “well-being of its populace.”[14] The interest must be recognized by the Supreme Court.[15] Here, the government of Mexico may be able to sue on behalf of the individuals who were forced to undergo sterilization procedures while in the custody of US officials, under the guise that a recognized interests is a “state’s effort to secure its citizens ‘from the harmful effects of discrimination.’”[16]

The women who suffered the forced sterilizations can bring suit in the United States under the Alien Tort Statute. The Alien Tort Statute, or ATS, is a federal law adopted in 1789 that gives federal courts jurisdiction to hear lawsuits by non-U.S. citizens for torts committed in violation of international law.[17] International law has expanded to include the protection of human rights, and ATS has enabled survivors of egregious human rights abuses to bring suit against the perpetrator in the United States.[18] Although ATS provides standing to sue, a foreign national suing US government officials will likely face significant legal challenges.[19] Courts have often rejected suits against US officials for human rights violations on grounds of political question doctrine or sovereign immunity.[20]

Sexual violence, which includes forced or coercive sterilization, is considered an international crime. The women who have suffered through these procedures, can sue under a number of international agreements, including the Fourth Geneva Convention, or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[21] The Rome Statute of the International Criminal Court delineates that “enforced sterilization refers to forcibly sterilizing an ethnic group as part of a systematic attack against that ethnic group” is a crime against humanity.[22] Ultimately, the women in the detention center have a number of ways to ensure recourse against US officials, but do face significant challenges if suing in United States courts. 

[1]Rachel Treisman, Whistleblower Alleges ‘Medical Neglect,’ Questionable Hysterectomies of ICE Detainees, NPR, Sept. 16, 2020, https://www.npr.org/2020/09/16/913398383/whistleblower-alleges-medical-neglect-questionable-hysterectomies-of-ice-detaine.

[2]International Human Rights Clinic, Forced Sterilization, United Nations, https://lawguides.scu.edu/c.php?g=5744&p=2559362.

[3]Id.

[4]Pfizer, Inc. v. Gov’t of India, 434 U.S. 308 (1978). 

[5]Id.

[6]Id.

[7]Id.

[8]Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000). 

[9]Id.

[10]Id.

[11]Id. 

[12]Id.

[13]Kenneth Juan Figueroa, Immigrants and The Civil Rights Regime: Parents Patriae Standing, Foreign Governments and Protection from Private Discrimination, 102 Colum. L. Rev.408 (2002). 

[14]Id. 

[15]Id. 

[xvi]Id.

[17]The Alien Tort Statute, The Center for Justice and Accountability, https://cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/. 

[18]Id.

[19]Id.

[20]Id.

[21]Sexual Violence as International Crime, Human Rights Watch, https://www.hrw.org/legacy/campaigns/kosovo98/seviolence.shtml#:~:text=The%20statute’s%20definition%20of%20crimes,sexual%20violence%20of%20comparable%20gravity.%22.

[22]Forced Sterilization, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/enforced_sterilization#:~:text=Primary%20tabs,of%20the%20International%20Criminal%20Court.