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Article by Annabelle Wilmott, DNA testing can provide a reliable way of revealing a person’s identity for immigration purposes. Although immigration authorities still accept traditional forms of identification, DNA tests have become the “gold standard” of identification methods. They can be a useful tool for individuals wishing to establish a biological link for family reunification but who have no other forms to prove their relationship. However, genetic testing can reveal sensitive information about health and ancestry. If the genetic information falls into the wrong hands, it can be used to calculate the cost of healthcare or to discriminate against people for life or disability insurance if they are deemed to be too high-risk. Not only can DNA testing reveal sensitive information about the individual, but it puts in jeopardy the privacy of one’s relatives and future generations. This article describes how DNA testing is used for immigration in the European Union (EU) and the United States (US). It examines the use of DNA testing for the purposes of both family reunification and surveillance, and examines how DNA testing can infringe on human rights, including the rights to privacy and family life. It concludes by proposing ethical guidelines for DNA testing in immigration contexts. DNA testing for family reunification The right to family reunification derives from the right to family life in the Universal Declaration of Human Rights. In Europe, family reunification is also protected by the European Convention on Human Rights and the Charter of the Fundamental Rights of the European Union. Family reunification is one of the most important forms of immigration to Europe, accounting for nearly a third of all arrivals of third-country nationals. Seventeen countries in the EU include DNA testing in their family reunification processes to confirm a biological link between the applicant and sponsor. According to a 2014 European Commission Communication, DNA testing is only supposed to be used as a “last resort” and should not be used “if there are other suitable and less restrictive means to establish the existence of a family relationship.” However, it is not hard to imagine it becoming a mandatory element for family reunification. Germany has begun to normalize DNA testing in its administrative decision-making procedures. As the burden of proof is on the applicant, immigrants may be forced to comply to genetic tests to become eligible for family reunification. The US also recognizes the right to family reunification, the process of which is governed by the Immigration and Nationality Act. Traditionally, when DNA testing has been used for family reunification in the US, it has not been compulsory. Rather, petitioners can opt-in if they have no other documents available to establish their biological relationship. Although immigration officers can suggest that petitioners submit DNA, under the current law, United States Citizenship and Immigration Services (USCIS) cannot require genetic testing even when other forms of evidence for establishing family ties are insufficient. Recent US policies have sounded the alarm bell on the use of genetic verification in immigration. Following the implementation of the Trump administration’s “zero-tolerance” policy last year, wherein families were separated when adult relatives were charged with unlawful entry, a court ordered the reunification of all migrant families separated at the border. In response, in July 2018, the United States Department of Health & Human Services (HHS) announced that it would begin using DNA tests before matching children with their parents, claiming that it would take too long to verify parental claims through documentation. HHS maintained that such testing would be used only to verify familial relationships and that DNA documentation would be destroyed after verification. Nonetheless, privacy advocates expressed serious concern about the policy’s broader implications, warning that this could be a move towards building a centralized government DNA database. Moreover, as part of a summer 2019 pilot program on Rapid DNA testing, Immigration Customs Enforcement (ICE) agents were positioned at the southwestern border to conduct DNA tests on migrants to identify fraudulent families: adults using children who are not related to them to exploit special protections. Although the government claims that tests are consensual, the Department of Homeland Security (DHS) states that “failure to submit to Rapid DNA testing may be taken into account as one factor in ICE’s assessment of the validity of the claimed parent-child relationship.” DHS has indicated that DNA samples collected by ICE will not be stored and that the data and samples themselves will be destroyed. Child rights advocates have expressed concern that families traveling with adopted children or with relatives outside their immediate family will be separated by the policy. The use of a DNA database The concern that governments will obtain people’s DNA without consent and store it in a database is not merely a dystopian fiction. For example, in China, authorities have collected the genetic material of the Uyghur minority population in order to “chase down” those who do not conform to the government's “re-education” campaign. This is also happening in the world’s beacons of democracy. In Germany, immigrants that voluntarily submit their DNA profiles do not have the right to decide what happens to the information. Following the Prüm Convention, individuals’ genetic information can be stored in a DNA database and shared with other countries in the EU. While German citizens are given the right to informational self-determination, immigrants are not. In the United States, the Justice Department recently proposed to begin collecting DNA samples from migrants crossing the border to store in an FBI database to help fight crime. Currently, DNA information can be collected from criminal suspects under federal law and in nearly thirty states. The proposal would dramatically expand the previous policy to allow the government to collect DNA evidence of those who have not been charged with or convicted of crimes. It would not apply to legal permanent residents, anyone entering the country legally, or children under fourteen. Conclusion Although countries have the sovereign right to control immigration and secure their borders, the United States and the EU Member States, as signatories of the Universal Declaration of Human Rights, are also obliged to protect the rights to privacy, family life, and to seek asylum. These countries should continue to utilize traditional means for establishing familial relationships for family reunification rather than over-relying on DNA tests. Moreover, they should obtain informed consent whenever they use DNA tests and destroy biological samples after use. The shift in the use of DNA databases from storing profiles of criminals and suspects to retaining the information of non-criminal immigrants is deeply worrying. Requiring immigrants to submit DNA tests in exchange for being allowed to stay in the country could open the floodgates to massive DNA testing and storing. It is time for these countries to step up and ensure that the rights to family reunification and to seek asylum do not come at the cost of privacy rights.

Article by Helena Von Nagy, Established consciously as an entity informed by international human rights, humanitarian, and criminal law but operating within a domestic context, Colombia’s new transitional justice court presents a fascinating nexus of international human rights law and domestic statutes. It helpfully instantiates how international law can be incorporated into domestic courts. In trying sexual violence cases, the court balances domestic statutes and international law, using the latter as a “reference legal framework” to inform its reading of domestic statutes. Under the watchful eye of international law, the court attempts to balance its primary purpose of reconciliation with the specific government mandate that not all crimes deserve amnesty. The challenge of balancing amnesty, punishment, and domestic and international requirements is especially evident in the court’s treatment of sexual violence cases. Background In November 2016, the Colombian government succeeded in negotiating an end to a five-decade civil conflict that inflicted deep wounds on Colombian politics and society. In 1962, in reaction to extreme polarization, violent repression and protest, an undemocratic power-sharing accord, failures of agrarian reform, and political control by elites in Colombia, a group of primarily university students formed the Ejército de Liberación Nacional (ELN, National Liberation Army). The Fuerzas Armadas Revolucionarias de Colombia (FARC), the guerilla group that came to define the conflict, soon emerged as well. For more than fifty-four years, Colombian civilians lived in fear of kidnappings, bombings, military raids, forced displacement, sexual violence, and other war crimes. Not only members of the guerilla groups, but also the members of the right-wing paramilitaries and the state armed forces perpetrated these crimes. By the time of the peace accord, over 260,000 Colombians had died—over 80% of whom had been civilians—and 7.5 million had been displaced. Due to the violence, chaos, and factionalism wrought by the conflict, the Colombian people rejected the government’s proposal to negotiate with the FARC in a plebiscite in October 2016. The government nonetheless approved the agreement in the name of restoring civil, social, and political stability to Colombia. Addressing sexual violence against women—or ‘crimes against sexual liberty and autonomy—became an important focus of the negotiators. Women comprise over half of the 8.8 million people – a fifth of the total population – recognized as victims of the prolonged Colombian conflict. As of October 1 of this year, 28,767 victims of sexual violence perpetrated in connection to the armed conflict had reported claims to the Victims’ Office (Unidad para la Atención y la Reparación Integral a las Víctimas ) since 1985. The most frequent offenders were members of the paramilitary, followed by the guerillas, and then the state armed forces. Framework In an attempt to resolve the tensions of the conflict quickly and justly, the Peace Accord offered amnesty for certain crimes, and most significantly, established a special tribunal, the Jurisdición especial para la paz (JEP, Special Jurisdiction for the Peace) to try war crimes committed by guerillas and state actors, including sexual violence. The JEP, and the Accord overall, balances international laws governing human rights, humanitarian actions, and war crimes with domestic laws to structure what it will hear and how it will decide cases. The framers clarified, “the parties, always and at every stage, have upheld the spirit and scope of the rules of the National Constitution, the principles of international law, international human rights law, international humanitarian law (its conventions and protocols), the stipulations of the Rome Statute (international criminal law), the decisions of the Inter-American Court of Human Rights concerning conflicts and conflict termination, and other resolutions of universally recognized jurisdictions and authoritative pronouncements relating to the subject matters agreed upon….” As suggested, the Agreement balances international law with domestic law; it encourages the JEP to employ international law as a “reference legal framework” in its attempts to apply the “most favorable law,” though it does not clarify to whom the law should be most favorable. The balance comes through clearly in relation to sexual violence claims. In practice, the court seems to prefer domestic statutes informed by general principles of international law. The Agreement placed a special emphasis on sexual violence, and included 100 provisions on women’s human rights, several of which address conflict-related sexual violence. The domestic statutes further refine the JEP’s interpretation of sexual violence. For example, Ley 1820 of 2016, § 23(a) specified that sexual violence would not be governed by the amnesty policy of the JEP (see here for implementation example). Most significantly, it counts sexual violence with other “serious war crimes,” which includes “any violation of international humanitarian law committed as part of a systematic attack—hostage taking or other serious deprivations of freedom, torture, extrajudicial executions, forced disappearances, rape and other forms of sexual violence, child abduction, forced displacement and the recruitment of minors.” All of these offenses are specifically ineligible for amnesty or pardon, “as established in the Rome Statute.” Thus, the Agreement establish a wide array of crimes in which the interest of protecting the victims and punishing the violators overrides the strong emphasis on restorative justice for military actors. Colombia also has a wide range of statutes that establish sexual violence as a crime. Ley 1448 of 2011 ("Law on victims and land restitution”) recognized crimes against sexual liberty and autonomy in armed conflict and created a national coordinate system for attention to victims’ needs in such settings. It also established victims’ rights offices, including the Office of Victims’ Psychosocial and Physical Health (PAPSVI), the National System for Victim’s Attention and Reparation (SNARIV), and “Victim’s Tables,” or local, regional, and national support systems that bring local issues to the national attention. Ley 1719 (2014), a municipal law in Bogotá, established the normative base for the protection of sexual liberty and autonomy in armed conflict. It also included provisions for access to justice, especially for victims of crimes associated with armed conflict. Finally, Report 009 (2015) of the Constitutional Court established that crimes against sexual liberty and autonomy would be prioritized in considerations of damages (“reparación administrativa”). The JEP actively incorporates domestic statutes in its decision making and frequently cites and relies on them in verdicts. Implementation Although the court officially affirmed that amnesty will not be available for sexual crimes, it has struggled to properly delineate how it will treat sexual crimes committed by actors who violated other international laws related to war. It has yet to formalize its policy on amnesty for sexual crimes. Recent decisions suggest the court may distinguish between sexual crimes committed in connection with the conflict (whatever that may mean) and sexual crimes in the context of the conflict: “Not all sexual and gender crimes, though they took place during the conflict, are connected to it.” The court refused to grant a lesser sentence to Orlando Guerrero Ortega, a FARC soldier, after convicting him of sexual assault because Ortega’s crime was not connected to the training he received as a soldier. In the dissent, however, Magistrate Mauricio García Cadena argued that the court’s opinion misrepresented the connection between sexual violence and the conflict. He also proposed a framework for analyzing how the conflict influenced sexual violence going forward, establishing three types of sexual violence: violence as part of the official strategy of armed groups; violence that is not ordered, but tolerated by commanders; and, opportunistic individual violence (like Ortega’s case). Other activists, however, have resisted the efforts to formalize a rule. Nonetheless, sexual crimes have received amnesty. Some organizations are reluctant to bring sexual violence cases before the JEP because of the amnesty mandate. For example, Salvatore Mancuso, the ex-second-in-command of the United Self-Defense Forces of Colombia (AUC) paramilitary group is currently serving 15 years and ten months in US prison on drug trafficking charges. The Superior Court in Bogotá convicted him in absentia to 40 years in prison for war crimes committed against women. He opted instead for a trial with the JEP to resolve his other war crimes, which has sentenced him to 8 years, served after he returns from the US, plus “rehabilitation” activities in the name of reconciliation. Thus, they disregarded his sexual crimes in order to address other wrongs. Furthermore, the Corporación Rosa Blanca, which represents female members of the FARC who were victims of sexual assault, has publicly decried the amnesty policy of the JEP. They have decided to bring their 26 public cases to the ICC instead of the JEP to avoid the possibility of amnesty for the perpetrators. Despite Ley 1820 (exempting sexual violence from amnesty), the JEP has signaled its intent to prioritize offering amnesty for political crimes in order to aid the reconstruction process, and disregard punitive punishments for sexual violence. Thus, the interest in restorative justice and amnesty may frustrate the punishment of sexual violence, despite the strong domestic laws and promises of the court. Conclusion Though the process remains flawed, the JEP is a promising example of integrating international human rights and humanitarian law into domestic courts. The biggest challenge to the court is balancing sexual violence, other war crimes, and the interests of restorative justice in a way that systematically acknowledges survivor’s right of restitution. Whatever balance the court strikes, however, will specifically acknowledge the goals and requirements of international law, establishing a promising precedent in the Americas for future trials.

Article by Tyler Takemoto, Announced last month, the US withdrawal from Northern Syria raises a complex set of issues implicating the United States’ obligations to its military allies abroad. In the context of executive power and due process, the decision to withdraw military forces will likely reignite the legal debate about due process rights of US and European citizens in military detention and the scope of the 2001 and 2002 Authorizations to Use Military Force (AUMFs). The US partnered extensively with the Kurdish Syrian Democratic Forces to enact its military offensive against the Islamic State. As part of this partnership, the Syrian Democratic Forces (SDF) have maintained several wartime detention sites that currently hold about 11,000 people designated as ISIS fighters. Roughly 2,000 of the people detained are foreign nationals, including European and potentially US citizens. A legal approach to administering justice for the people detained remains unclear. With waning US support for the Kurdish forces in Syria that maintain the detention sites and increasing likelihood that those detained will face transfer to different parties, the question of US and European states’ obligation to uphold their citizens’ due process rights becomes increasingly urgent. Due process requires that alleged members of Islamic State are afforded fair and rigorous trials through proper legal channels. Observers including Human Rights Watch have expressed concern that detainees transferred from Syria to face prosecution in Iraq have lacked access to fair trials and have experienced serious mistreatment, including torture and summary execution. Nevertheless, European states have proved reluctant to repatriate alleged Islamic State combatants and try them in domestic courts. French officials, for example, recently requested Iraq take on the responsibility of detaining and trying the approximately 60 French nationals currently held in Syria. The UK government revoked citizenship of two British nationals in SDF custody, and for over a year opposed their repatriation for trial. Last month, the SDF transferred them to US military custody where they currently face potential prosecution in the UK or the US in the Eastern District of Virginia. In the US, military detention of citizens allegedly involved with the Islamic State implicate fundamental questions of executive power and constitutional rights. Doe v. Mattis, a habeas case filed on behalf of a US citizen in military custody and concluded in October 2018 upon his release to Bahrain, explored the issue of due process for military detainees in the conflict against ISIS. However, the D.C. District and Circuit courts adjudicating the case avoided broader questions about executive authority. In particular, the courts did not resolve whether the 2001 and 2002 AUMFs apply to ISIS or whether the US can de facto expatriate citizens for alleged involvement with terrorist groups. Withdrawal from Northern Syria will likely force these questions back to the forefront as an influx of transferred European and possibly US nationals enter United States military custody. In determining how to respond, courts have an opportunity to reaffirm due process rights for people in military detention. More broadly, they can invite Congress to affirmatively assert its role in ensuring the administration’s military action accords with international humanitarian law, the Constitution, and collective values of dignity and justice.

Article by Martin Neira, As mentioned in my previous article, there has been a surge in international HR and environmental litigation in front of national courts from well-developed legal systems. Accompanying this has also been growing interest in litigating climate change in international fora, including the International Court of Justice (ICJ). The ICJ has decided a number of environmental disputes in the past, including the Whaling in the Antarctic Case, in which Australia successfully challenged the legality of Japan’s whaling program in the Southern Ocean. Other environmental cases in the ICJ have not been as successful, such as the Nuclear Tests Cases brought by Australia and New Zealand against France in the 1970s. In a landmark claim submitted in May at the United Nations, the governments of Vanuatu and other Pacific Islands have been exploring how to request an ICJ advisory opinion on climate change. These governments argue that Australia, by failing to take adequate steps to reduce carbon emissions, has violated Indigenous Australians fundamental human rights, including the right to maintain their culture in the low-lying islands in the Torres Strait. The action is part of a burgeoning movement in which litigants, including a group of 21 young people in the United States, have made the novel argument that governments face a fundamental duty to ensure a livable environment. But this is the first time an argument is brought to seek the weight of the United Nations behind such a climate claim, and it could set a precedent for how the populations most vulnerable to the effects of global warming can seek redress under international law. If successful, the case “would really break new ground internationally,” said John Knox, a professor of international law at Wake Forest University and a former special rapporteur on human rights and the environment to the United Nations. While the United Nations cannot force Australia to take action, those leading the case say they hope it will apply pressure on governments around the world to protect the rights of marginalized citizens whose culture is tethered to a particular place.

Article by Ramita Sareen, The Burqa ban has proliferated in Western Europe at an alarming rate and around 14 countries have banned and implemented some kind of ban on face-coverings in public areas, with the Netherlands being the most recent. France and Belgium were the first countries to deal with this adherence to the burqa. A few of them have introduced general bans that extend to all public places while others have introduced regional bans in public spaces like schools and government buildings. The new legislation is largely viewed as targeting Muslim women who wear veils such as niqab and burqa, and thus, violating their basic human rights. This became clear in 2010, when France passed a law outlawing the wearing of any face-covering clothing items in public areas and subsequently in 2012, 2 Muslim women were fined when they wore the niqab publicly. Sas. v. France. The proponents of the ban argued that the dress symbolizes oppression of women, offends sexual equality, and poses a risk to public security as the person cannot be easily identified and could easily hide explosives or weapons and it prevented the people in France from “living together”.This is turn concealed the identity of the wearer which posed a security threat. The primary focus of this Article is how compatible burqa bans are with international human rights law and how does International law view this legislative ban. Statistics show that there are only marginal numbers of women who wear burqas or niqabs in Europe. Despite that this has become a major issue and is still an ongoing issue in the continent. In addition to dealing and assessing this question of compatibility, this Article will focus on freedom of religion of Muslim women, how their right is violated, and assuming that this fundamental right is the one that is most invaded by this new illicit legislation. This article will also argue that a general ban on face veils especially in France cannot be justified. THE INTERNATIONAL LAW PERSPECTIVE There are several international and regional instruments under international human rights law that cover and protect the rights of individuals. These rights are the right to freedom of expression, freedom to profess any religion, prohibition against discrimination and other fundamental rights. These documents include the Universal Declaration of Human Rights(UDHR), International Covenant on Civil and Political Rights(ICCPR), Elimination on all forms of Discrimination against Women and the European Court of Human Rights. To understand the compatibility of the legislation with this law one must understand what does right to freedom of religion and expression cover and how does International law view this. Article 18 of the ICCPR states that “everyone shall have the right to freedom of thought, conscience, and religion.” The United Nations Human Rights Committee also states that this Article is not limited in its application to traditional religions or religions and beliefs with institutional characteristics and thus, has to interpreted broadly. This issue is also covered by the European Convention on Human Rights (ECHR). Article 9 of the European Convention on Human Rights explicitly states that everyone has the right to freedom of thought, conscience, and religion. In Europe, Muslim women can rely on these human rights protections to defend themselves. GENERAL BAN IN FRANCE France has set a precedent for the rest of the countries in the EU, who have tried to implement some form of face veil ban. France’s general ban has said to violate all the conventions mentioned above. The “Living together” ruling of the European Court of Human Rights has been incompatible with all the conventions and the court has been in continuous violation of the various freedoms awarded to the Muslim women through these. Further, it is not articulated as a permissible reason to limit the rights guaranteed under Article 9. However, the Court stated that this was a valid ground to limit their freedoms and rights under various conventions. The decision of the United Nations Human Rights Committee was opposite to that of the European Court of Human Rights. It ruled out that France’s ban on face coverings in public violates the rights of women who wear full veils even though France contends that their motive and concern is public security and that the idea to promote gender equality. Further, it also found that France’s general ban has inevitably harmed the rights of Muslim women to manifest their religious beliefs and is not convinced with Franc’s claim that such a ban was necessary to attain the goal of “living together” in society. ADMISSIBILITY France which has ratified various UN human rights treaties has failed to comply with the provisions of the conventions, especially Article 18 and 26 that define freedom of religion and right to non-discrimination respectively. Herein, France argued that this ban was a permissible limitation to the right of religion. The permissible limit as imposed by France does not pursue any legislative aim concerning any rights or reputations of others, the protection of national security, and the maintenance of public health or order or morals. For a restriction to be permissible it needs to respect the principle of equality and should be non-discriminatory. This satisfies that France had not complied under its obligations by violating the rights of Muslim women. France has failed to prove and identify that a threat to public safety could only be achieved by banning face veils and that most of the public threat and terrorism is caused by women who wear burqas or any other kind of face coverings. It has further failed to explain why was it necessary. A mere justification of public safety and the “living together” principle does not satisfy this big huge step and requires more explanation. CONCLUSION A general ban on the burqa is discriminatory and incompatible with both International law and human rights standards. Even though discrimination has been carefully crafted to include all kinds of face veils, it has mostly targeted the small population of Muslim women. The ban has divided the country and has failed to attain the goal of “living together” society. France has interfered with the religious freedom of Muslim women. A general nation-wide ban cannot be justified and requires more substance and clarity. The legislative ban is likely to be ineffective as there are women who have been encouraged to wear full veils in range and anger. Partial bans can, however, be justified in response to a particular situation or an emergency. Thus, I would discourage such interpretation of the laws and believe that France’s argument on public security, safety and order needs to be more coherent and transparent.

Article by Rudi-Ann Miller, Several countries have turned to emerging technologies to attempt to solve the intractable issues of security and efficiency associated with the influx of migrants. These governments have integrated advanced digital technologies—many of which were previously used in military capacities—into their border security efforts. This technology toolbox often includes instruments such as drones, satellite surveillance, biometric readers and scanners, and artificial intelligence (AI). AI, in particular, has been touted as a fast and effective solution to reduce the backlog on permanent residency and asylum requests. But while the implications of the use of these technologies in this context are far-reaching, this technology proliferation is occurring virtually unchecked. These technologies have the potential to threaten the fundamental freedoms of extremely vulnerable populations, yet they remain unbridled by any rigorous scrutiny, ethical safeguards, or compliance mechanisms. Should AI be used in making decisions that have life-or-death consequences? Can we trust that the creators of these technologies will have all human interests at heart? Can AI truly improve human decision-making and remove bias from the immigration process? This article, which draws mostly from the research presented in Petra Molnar and Liz Gill’s 2018 report, illustrates how AI, in particular, has been introduced into the immigration decision-making processes in the United States (US), Canada, and the European Union (EU). It examines how AI infringes on human rights including the rights to life, non-discrimination, security, and due process. It proposes that, in addition to efficiency, AI is a tool used to validate the protectionist immigration policies of the developed world. I. AI, by virtue of how it learns to process information, often produces biased output AI refers to the group of technologies that use methods such as machine learning and predictive analytics to aid or replace human judgment. AI systems operate by processing large amounts of data using intelligent algorithms to generate an output. This allows the system to learn from patterns or features in the data. To begin this learning process, a human AI programmer feeds the AI system a basic set of “training data,” which could include, for instance, past decisions on immigration applications, photographs, or statistics. The AI system then learns how to generate correct versus incorrect outputs based on how this data is classified and/or interpreted by the human programmer. As it improves its accuracy, the AI system is exposed to greater amounts of data. But, AI is only as good as the training data it receives. AI systems learn by adopting the programmer’s interpretations of the data. Therefore, if the training data is itself biased, AI propagates these biases. For example, most AI systems used in facial recognition software were fed training data that usually reflected the identities of their programmers—white and male. As a result, most facial recognition software are incapable of accurately identifying people of color. The human “values, assumptions, biases, shortcomings, and blind spots involved in the selection or substantive content of training data—as well as the types of input data deemed ‘relevant’ to an automated system’s decision-making process—impact outputs.” However, unlike a human where biased outcomes may not be definite in every situation, an AI system trained on biased data will be substantially certain to yield the biased output every time it is used. Therefore, the assumption that technology is inherently unbiased has led to unchecked use and abuse when, in fact, the very processes by which these machines learn to make decisions can only be biased. II. The United States, Canada, and the European Union use AI in immigration decision-making processes Despite the significant probability of bias, AI has increasingly been used to augment or replace human decision-making in immigration. At the US-Mexico border, AI is used by Immigration and Customs Enforcement (ICE) officials to determine whether or not a migrant should be placed into immigration detention. Since 2013, ICE’s Risk Classification Assessment (RCA) tool has used statistics to determine whether a migrant poses a flight risk or a danger to society. Previously, the RCA would review a migrant’s record and interview transcripts to recommend either that ICE “detain” or “release” an individual. In 2017, however, in response to US President Donald Trump’s executive order on border security, ICE removed the “release” option. Now, the RCA automatically detains all persons subjected to its analysis. As a result of this change, the number of migrants placed in detention tripled to more than 43,000 in 2017 from the year prior. Similarly, Canada has experimented with the use of AI technologies in immigration since at least 2014. As Petra Molnar and Liz Gill explain, the Canadian government has been developing an AI system to automate the work of immigration officials in reviewing immigration applications. These AI systems make decisions on the truthfulness or accuracy of a migrant’s application such as the authenticity of their marriage to a Canadian citizen or whether an applicant should be identified as a risk. Canada’s use of AI is especially concerning because they have applied the AI system to the review of the Humanitarian and Compassionate Applications and Pre-Removal Risk Assessments, which are used by migrants fleeing war and violence. To use a flawed technology in such a context could have life-or-death ramifications because the principle of non-refoulment may not be upheld. Rejected applications could send migrants back into the dangerous environments from which they are fleeing. The EU has also begun testing AI technology. In 2018, IBORDERCTRL, an AI lie detector, went into effect in Hungary, Latvia, and Greece at those countries’ borders with non-EU nations. IBORDERCTRL functions as a virtual border guard that asks people questions about their previous movement and discerns the truth of their statements. Immigration candidates answer these questions while facing a webcam. The system then analyzes and rates dozens of facial micro-gestures. If IBORDERCTRL determines that the person is telling the truth, they are granted entry. If the system suspects a person is lying, they are transferred to a human border agent who reviews the information and makes an assessment. Systems such as IBORDERCTRL have high error rates and often make faulty assumptions about what constitutes credible information. The system may not be cognizant of differences in cross-cultural communication, such as how head-nodding may mean “yes” in some cultures, but “no” in orders. The system also may not know how trauma impacts memory. III. AI could have an extraordinary impact on the human rights of migrant populations Without proper safeguards, the use of discriminatory and biased AI systems may severely affect the human rights enshrined in international treaties such as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Relating to the Status of Refugees. Migrant communities are particularly vulnerable to human rights abuses because of their race, national origin, and legal and economic status. AI could entrench discrimination by consistently making decisions that adversely impact specific groups of people. AI also affects due process because, in using a machine instead of a human, migrants may not get a proper individual assessment. AI may also change our fundamental understanding of the legal system as human decision-makers are augmented or replaced with automated decision-makers. For example, should one pursue a legal challenge to an immigration decision made by AI, to whom do you make your formal complaint? The algorithm itself, the immigration officer who could have overruled the AI system’s output, or the AI system’s creator—where does the responsibility lie? Should the AI system have an independent legal personality that can be taken to court? Judges will have to start thinking about these basic questions of responsibilities and redress. IV. Recommendations Technology has begun to redefine global migration and human rights law. However, before governments further adopt and normalize the use of AI in immigration decision-making, we must more critically examine its use. Decisions to augment or replace human decision-making with AI must be more transparent. Cost-benefit analyses of immigration technologies must give greater import to human rights rather than bureaucratic efficiency or protectionism. Government officials must be held accountable for outcomes. Lastly, interdisciplinary groups of scholars and human rights activists must work together to illuminate the issues and potential impacts. The US, Canada, and EU each have a duty as first-movers in this area to set an example by regulating the use of these technologies in accordance with human rights doctrines.

Article by Aaron J. Cheung, The Kincade fire in Sonoma County has already spread to over 10,000 acres amid high winds. This fire followed an earlier blaze near Los Angeles and PG&E’s public safety shutoff as a preventive measure to prevent fires. A large number of catastrophic fires forces us to wonder why these fires have flared up. A recent study found that California’s fire problem is likely driven by human-induced warming, resulting in increases in atmospheric aridity, leading to dry fuels in California. These dry fuels make large and disastrous fires much more likely. These Californian fires should be a wakeup call, and it should do more than make us wonder what other challenges we face and how to address climate change better, but also the disproportionate impact of climate change in other parts of the world. The U.S., one of the early adopters of carbon-producing industry, has had an outsized impact on climate. The implications of climate change can be disastrous for many. For example, island nations may disappear completely, and those near the costs may be displaced. One study estimates between 72 and 187 million people may be displaced due to rising sea levels by 2100. Economic losses to coastal cities, which must respond to rising sea levels and flooding, would amount to $1 trillion each year by 2050. In places that are becoming increasingly warmer or colder, materials used for infrastructure are no longer adequate. For example, in some areas, heated roads fail to hold up, and, in others, streets have melted. The U.S. previously pledged to cut emissions to 28% below 2005 levels by 2025 as part of the agreement. On October 23, 2019, President Donald Trump began to officially withdraw the U.S. from the Paris Climate Accord, which Trump called a “one-sided climate accord.” The accord is “one-sided,” just not in a way that makes it unfair to the U.S. When you consider how much of an impact the U.S. has had on climate change and the disastrous effects it has on other countries, and the global ramifications, the U.S. must do more to address these current problems. In some cases, states are individually looking to create policies that might affect national production. For example, California, currently suffering from climate change-induced wildfires, recognizes its commitment and is fighting several legal battles over its emissions policies.

Article by Shreya Jha and Vivek Sharma, I. Introduction The International Court of Justice [‘ICJ’] in the Jadhav case (India v. Pakistan) held that espionage is not an exception under the Vienna Convention on Consular Relations, 1963 [‘VCCR’]. This judgement reaffirms the protection of innocent nationals of the sending state who could potentially be targeted by the receiving state, had espionage been made an exception. This is because the receiving state is the one who gets to decide who is a spy. However, the receiving state is at a great disadvantage as it has to comply with the established principle of giving consular access to spies which may in turn lead to leaking of sensitive information to the sending state. This information can be used against the receiving state which may result in hampering its sovereignty. Thus, it is unsettling that the receiving state is required to give consular access at the behest of transmitting sensitive information to the sending state. According to Article 38(2) of the ICJ Statute, the Court can decide a case ex aqua et bono. Therefore, the authors believe, the ICJ could have adopted an approach to strike a harmonious balance between the interests of a state to protect its sovereignty vis-à-vis the right of the spy to consular access. This article elucidates the concerns of the receiving state and provides for a remedy to strike a harmonious balance between conflicting interests of both the parties. II. Legal Framework A. Consular access to spies under VCCR According to Article 36 of the VCCR, consular rights include right of a consular officer of the sending state to visit its national who is in prison, custody or detention in the receiving state, to ‘converse and correspond with him’ and ‘arrange for his legal representation’. Further, the receiving state shall inform the sending state, without delay, with regards to arrest, detention or trial of its national. B. Interpretation of Article 36 Article 36 of the VCCR grants a “personal benefit to the individuals”. The ICJ while determining the scope of Article 36 interpreted that the term national is broad enough to include spies and would not discriminate against certain categories of persons such as those alleged of espionage. III. Limiting the Right to Consular Access The VCCR does not create any exception of providing consular access to a spy. However, it is desirable that the receiving state may limit consular access in situations of threat to its sovereignty. By limitation, it is proposed that there should be a filtering mechanism. During consular access, a neutral third party should filter out information which it believes is sensitive in nature and imperils the interest of a receiving state. A neutral party can be a state, judges of ICJ or any other party which the states believe would be neutral in its dealings. In the following situations the receiving state may limit the right to consular access of spies: A. Public Emergency Public emergency is defined as a situation threatening the life of the nation.The need for limiting consular access might arise in such situations. This can be drawn from various instances where derogations from human rights treaties have been allowed in cases of public emergency. Thus, as VCCR is also a human rights treaty guaranteeing fair trial to nationals of the sending state, such derogations an be allowed. Such derogations from various other human rights treaties have been made by states in situations of public emergencies and have been approved by the Courts in consonance with the principle laid down in the case of Aksoy v. Turkey, where the European Court of Human Rights [‘ECHR’] decided that the state is the best judge by reason of its direct and continuous contact with the pressing needs of the moment. An example of such a derogation is the case of Lawless v. Ireland where the existence of a secret army carrying unconstitutional acts and operating within the territory of Ireland constituted existence of an emergency threatening the life of a nation. Thus, in those circumstances the ECHR held that detention without bringing terrorist suspects before a judge, could be regarded as a measure strictly confined to the exigencies of the situation. In other words, a measure required by the circumstances. Further, the right to consular access under Article 36 of the VCCR, is a procedural right and derogations from procedural guarantees is allowed under customary international law in times of public emergency. B. Anticipatory Self-Defense Every nation, regardless of treaty provisions, is free to defend its territory. It alone is competent enough to decide the circumstances under which it may be necessary for it to do so. Moreover, an anticipatory action under customary international law is permitted. There is no specific form to act under anticipatory self-defense. Thus, consular access can be limited by the states in cases of threat to its sovereignty, to exercise anticipatory self-defense. However, this limitation should meet two essentials of anticipatory self-defense i.e. necessity and proportionality. i. Necessity Article 25 of ILC’s Articles on State Responsibility defines “necessity” as a situation in which the state can safeguard an essential interest from a grave or imminent peril. It is a set principle that necessity knows no law. Moreover, whenever a threat to self-preservation occurs, it becomes necessary to protect one’s existence. The risk of transmitting sensitive information is sufficient to constitute necessity. ii. Proportionality The requirement of proportionality concerns the relationship between an action and its purpose. The granting of consular access to spies would lead to communication with the consular officer of the sending state and might lead to transfer of sensitive information thereby hampering national security of the receiving state. An absolute denial of consular access to spies would be unjustified under the requirement of proportionality. Therefore the authors suggest only limitation and not absolute denial of consular access to spies. Thus, if consular access is limited in response to meeting a legitimate aim of achieving national security, the proportionality requirement shall be met. IV. Conclusion The ICJ in not making espionage an exception has met the objective of VCCR. However, in the same vein by not duly addressing the legitimate concern of a receiving state the ICJ has imperilled the receiving state’s interest. To remedy this situation and strike a harmonious balance, it has been proposed that the state can curtail the transfer of sensitive information which is beyond the scope of consular access. This form of mediation would be successful when both states appreciate each other’s concern. It also ensures that the objective of VCCR is met which is to give consular access and safeguards the receiving state from any sensitive information being leaked during the process.

Article by Shauree Gaikwad, The Companies (Amendment) Act, 2013 introduced the concept of mandatory Corporate Social Responsibility (“CSR”) in India. India is the first Asian country to have come up with a legislation to implement mandatory Corporate Social Responsibility activities and the second country in the world to do so after the United Kingdom. According to CRISIL, in the last fiscal year 2018-19, the amount spent by companies on CSR activities was Rupees 9,977 crore, a Rupees 1,612 Crore jump from Rupees 8,365 crore spent in the fiscal year 2017-18. Even with this drastic increase in companies’ contribution to CSR activities, was introducing a stricter CSR regime as well as serious consequences for not complying the need of the hour? Laws related to Corporate Social Responsibility under the Companies (Amendment) Act, 2019 Under the Companies Act, 2013, Section 135 deals with Corporate Social Responsibility. Section 135 makes it mandatory for every company having a net worth of more than Rupees five-hundred crore or more or having a net profit of more than Rupees five crore in a financial year to constitute a board as well as a policy to carry out CSR activities. Furthermore, Section 135 makes it mandatory for these companies to spend at least 2% of their net profits on CSR activities. The Companies (Amendment) Act, 2019 amended Section 135 as well as, added 4 more sections to the existing sub-section and sections of Section 135. They are: · Section 5(ii) and Section 6 classifies between unspent CSR fund related to ongoing projects and unrelated to ongoing projects respectively and has different ways to deal with the same. · Section 7 charges a hefty fine ranging from Rupees fifty hound to Rupees Five Lakhs and/or imprisonment for a term extended up to three years. · Section 8 empowers the Central Government to issue directions for the compliance of CSR norms as given under Section 135 of the Companies Act, and the companies need to comply with the same. In addition to Section 135, Schedule VII defines activities which can be carried out as CSR activities and which mostly include eradication of poverty, hunger, gender inequality, along with improving employment rate, child mortality, environment and maternal health etc. The Irrationality of Tightening of Section 135 by the Companies (Amendment) Act, 2019 The concept of mandatory corporate social responsibility aims to direct companies to fulfil their economic, social and environmental needs towards the country and its people, but is it their corporate social responsibility to do so in the first place? It can be argued that the only social responsibility that any public company has, is to give dividends to the shareholders by generating profits. When profits have been successfully generated and dividends have been given to the shareholders, a company’s corporate social responsibility is essentially, put to an end. This ideology has also been supported by the economist Milton Friedman, who believed that a company has fulfilled its responsibility towards the society when it generates profit. CSR activities kept aside, a company already spends on research activities to develop technology and either improve or come up with new production techniques, which is not only enough to generate them profits but it's also good for humanity as a whole as it helps us to progress scientifically and technologically. The corporate executives who run the companies are meant to come up with business strategies that grow their business and generate profits, not come up with CSR policies that save them from imprisonment and hefty fines. A company’s will to work towards and provide for social welfare of the people should not be a result of the fear of strict penalties in case of non-compliance of the same. Tightening the CSR norms which already mandatory in nature, thus making it have serious consequences such as jail time, is definitely not the way ahead to go in order to ensure companies fulfil their social responsibility towards the State and its people. A better way to ensure that companies actively fulfil their corporate social responsibility would be to provide attractive tax incentives which vary according to the type of activity carried out. The company executives should not be coerced to find a way to improve the social conditions of the State with the threat of facing serious penal consequences as policy making and resource allocation is the Government’s job. Instead, the Government should increase the corporate tax or impose a CSR tax for the companies making profits of more than five crore rupees and later it should come up with schemes and ways to spend the tax revenue generated. The only newly added subsection that is in consonance with the above mentioned view of increasing corporate tax or imposing a CSR tax is sub-section 6 which necessitates transfer of unused CSR funds to the Prime Minister's National Relief Fund or any other fund set up by the Central Government. Rest of the additions made to Section 135 with the hope of it making companies increase their CSR activities as well as increasing the number of companies which carryout CSR activities, are innately flawed in its philosophy and a misunderstanding of capitalism. And therefore, in my view the CSR reforms brought by the Companies (Amendment) Act, 2019 are more of a bane than a boon. Acknowledging the Irrationality Soon after the Companies (Amendment) Act, 2019 was passed, the newly passed CSR law was highly debated on various news channels and well as newspapers. Soon after the Finance Minister Nirmala Sitharaman promised corporate entities to look into the matter. As a result, a High Level Committee on CSR gave its recommendations. They are: · Non-compliance with CSR norms be made a civil offence and moved to a penalty regime. · Make CSR expenditure as tax-deductible in order to provide a tax incentive for the companies who spend on CSR and allow companies to carry forward the unspent balance for a period of 3-5 years. · Develop a CSR exchange portal to connect contributors, beneficiaries and agencies, promoting social impact companies. · Conduct third-party assessment of major CSR projects. Along with the above-mentioned recommendations made by the High Level Committee, they also said CSR should not be treated as a resource gap funding for existing government schemes. Instead, a special designated fund should be created for the transfer of unspent CSR money beyond three to five years. Conclusion The recommendations given by the High Level Committee on CSR was a drastic change from the CSR law put forth by the Companies (Amendment) Act, 2019. This move was appreciated and found to be a huge relief by the corporate entities. Also, by giving these recommendations, the High Level Committee acknowledged that the new CSR law was a bane than a boon and set forth to correct the new CSR law by suggesting ways to improve and incentivise it.

Article by Shrutika Pandey and Rongeet Poddar, The Global Compact on Refugees, adopted by the UN General Assembly recently recognized that ‘climate, environmental degradation with natural disasters increasingly interact with the drivers of refugee movements’. The most alarming manifestation can possibly be witnessed in the environmental crisis unfolding in South Asia. Heavy leading to displacement and loss of life, worsening water scarcity and an alarming rise in the seal-levels are some of the most pressing issues before India today. A recent report by UNICEF recognises climate change as a significant push factor, displacing families and making livelihoods unsustainable on the cyclone-prone India-Bangladesh coast. The influx of Rohingya refugees from Myanmar and the spurt in makeshift refugee camps have accelerated environmental degradation due to the consequential pressure on resources. Cross-border migrants live under a constant threat of deportation with governments for the lack of temporary policy intervention, for instance humanitarian visas. The situation worsens with a hastily drafted National Register for Citizens seeking to expel ‘illegal’ immigrants from the north-eastern state of Assam, with the country’s eastern frontier being highly porous for climate-induced migration. One fall-back for this aggravated situation could be Nansen Conference on Climate Change and Displacement. In 2011, under the aegis of the United Nations High Commissioner for Refugees (“UNHCR”), the Nansen Conference had initiated the first major inter-governmental dialogue on the climatically displaced. There is limited precedent where an unstable ecosystem singularly displaced a population. However, the unique scenario in South Asia today calls for a further context-based evaluation of this pressing problem. Locating protection in the existing International Law framework: The international legal regime has failed to offer concrete protection to the climatically displaced. In response to this problem, New Zealand's Court of Appeal has observed the lack of protection under the 1951 Refugee Convention. The lack of protection under the Refugee Convention of 1951 attracts the classic definitional crisis for these displaced and a restrictive definition of ‘refugees’. The more serious concern which remains unaddressed presently is the sheer lack of political will globally. The climatically displaced do not qualify for protection under the international refugee law regime because of the difficulty in isolating climate as a singular marker of forced migration. While it is likely that climate change can exacerbate the existing markers of persecution under the Refugee Convention, it creates a major gap to address the modern-day problems arising due to climate change in the archaic model of the instrument. For the exclusivity of the convention, it is often argued that the individualistic nature of the instrument would be a misfit to address the collective rights of the climatically displaced. Moreover, opening a valve for inclusion would devalue the current protection for refugees and make access to asylum programs even more difficult. Turning to the international human rights law regime, the challenge is to identify a violator, in the strict legal sense. Climate change itself cannot be said to be human rights violation perpetrator. As far as affixing responsibility is concerned, the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) has remarked that it is impossible to ascribe responsibility to certain member-states for the deterioration of human rights in an area affected by climate change. There are arguments on both ends to explore the relatively small body of international environment law to locate protection for the climatically displaced. Exploring the possibility of an expansive analysis of Article 2 of the United Nations Framework Convention on Climate Change (hereinafter “UNFCCC”) gives a logically plausible solution to address climate-induced displacement. Employing present strategies to address the issue will not only enhance the framework’s adaptation but also attribute it to a broader idea of development. The Paris Agreement, 2015 acknowledges the legal quandary of the climatically displaced. The first use of the word ‘migrant’ in relation to climate change, lies in the preamble itself. An express acknowledgement of the problem can be found in UNFCCC’s 2010 agenda where it incorporated climate-induced migration under Article 14(f) of the Cancun Adaptation Framework. The way forward New Zealand’s proposal of introducing a humanitarian visa for the climatically displaced in the Pacific Islands could be a possible cue for the South Asian countries. However, national level responses in isolation are probable to fall short of tackling the plaguing crisis of climate-induced displacement in the region. The soft-law approach under the international environmental law regime remains the most flexible route to address climate-induced migration by employing the principle of common but differentiated responsibilities. This mechanism can serve as an effective vehicle to channel financial, technical and other requisite support to developing countries, particularly vulnerable to the onset of slow and sudden climatic factors leading to displacement. Being the worst affected, it is time for South Asian states to forge a regional alliance to engage in collective bargaining with the developed countries. As a major destination country, the onus is on India to take the lead to find region-wide solutions which could include equitable quotas for sharing the burden of climate migrant inflows that take due cognizance of the emerging climate-induced migration patterns and respective capabilities of the SAARC countries. The UNFCCC negotiations explored the possibility of adopting an organized migration and relocation framework under the aegis of the Climate Change Displacement Coordinate Facility. It envisaged the provision of emergency relief, compensatory measures and planned relocation. With the detrimental impact on the geophysical and socio-economic conditions in South Asia, there is a growing clamour for reconsidering the proposal. The impending Climate Change Conference at Santiago offers an ideal platform for adopting a holistic resettlement programme for the climatically displaced. With the lack of comprehensive data on climate-induced displacement, experts predict significant population movement around the world. Piecemeal mitigation approaches such as the creation of a Migration, Environment and Climate Change Division seems exiguous in the long term to combat the expected adversity. In the given circumstances, the international community must commence multilateral dialogue for considering the viability of an independent international treaty with the active collaboration of destination and affected countries. A stand-alone convention under the international environmental law regime with a comprehensive definition of ‘climatically displaced’ with binding guarantees of non-refoulement, assistance and shared responsibility should be the way forward.

Article by Afzal Mohhamad and Jahnvi Singh. According to the 2011 Population Census, the Indian population living in slums is close to 65 million. These slum dwellers have been subjected to unannounced evictions and denial of basic human rights under the garb of urbanization. In a 2015 petition, before the Delhi HC with respect to the forced eviction of Jhuggi Jhopri Basti (“JJ slums”) dwellers, the Court has ordered that forced and unannounced eviction of pavement dwellers without conducting a detailed survey and drawing up a rehabilitation plan in consultation of the dwellers and ensuring immediate rehabilitation, shall be contrary to the law, thus recognizing Right to the City (RTTC) in International Law as an integral part of right to adequate housing. In the said judgment, the court has recognized the RTTC and its increasing recognition in the international sphere. The court opined that it is an individual as well as a collective common right to call for changes in ourselves by changing our living spaces. “It is a right to struggle for maintaining critical solidarities.” The RTTC finds its roots in the Istanbul Declaration on Human Settlements, 1996 (“Habitat II”) which endorsed “the universal goal ensuring adequate shelter for all and making human settlements safer, healthier and more reliable, equitable, sustainable and productive” and recognized, with urgency, the deteriorating conditions of human settlements. With its major themes “Adequate Shelter For All” and “sustainable human settlement development in an urbanising unit”, the declaration committed to working towards the betterment of the standards of living and right to adequate housing. Furthermore, the policy paper of the New Urban Agenda, a Habitat III Policy Unit ‘Right to the City, and Cities for All’ has defined the right as’ “the right of all inhabitants present and future, to occupy, use and produce just, inclusive and sustainable cities, defined as a common good essential to the quality of life. The right to the city further implies responsibilities on governments and people to claim, defend, and promote this right.” As per RTTC, the contributions of JJ dwellers to the social and economic life must be acknowledged and for a state committed to social welfare, it shall be imperative to prioritise the housing needs of these dwellers. According to the Committee on Economic Social and Cultural Rights, a national housing strategy should be adopted after ensuring consultation with and participation by all the homeless, inadequately housed and others affected and their representatives. It also emphasizes on the coordination between various ministries and authorities to reconcile the remedies including legal remedies preventing illegal eviction and procedure seeking compensation. In line with the above, in the case of Sudama Singh v. Government of Delhi, the court held that a mandatory survey has to be conducted, ensuring its productivity by repeated visits with prior notice. Crucial document, like the proof of residence, must be preserved by the involved agency. In addition, the basic civic amenities consistent with the right to life and dignity shall also be made available. Even though the right to housing hasn’t been specifically spelt out, it has been recognized in several provisions. The Preamble to the Constitution of India, for instance, guarantees to all its citizens the right to social justice and individual dignity. The Right to Life read with Right to Equality, Right to Freedom of Movement, Right to reside and settle in any part of India, freedom to carry on trade and profession ensures that the State takes up measures to grant these basic survival rights to its underprivileged citizens. Although, the Directive Principles of State Policy, while talking of the right to work, education, just and humane conditions of work etc., do not expressly provide the right to shelter. Francis Coralie Mullin v The Administrator has broadened the ambit of right to life to include the basic necessities of life such as adequate nutrition, clothing and shelter and all that goes along with the right to live with dignity. In the case of K. Chandru v. State of Tamil Nadu, it was held that “the right to life under 21 indicates the right to livelihood and since the right to life and the right to work being integrated and interdependent, the eviction of a person from a slum or a pavement puts his very right to life in jeopardy and is thus violative of Article 21 and 19(1)(e) of the constitution.” In a PIL filed by pavement and basti dwellers in Olga Tellis v Bombay Municipal Corporation, it was further observed that the right to life is inclusive of the right to livelihood, and other integral components like everything which makes life livable. The court also observed that since the rural population migrates to the city in search of livelihood, the means of livelihood and life have nexus between them. Further, since these workers have small jobs they have nowhere else to live other than the slums in the vicinity of their workplaces and thus if these dwellers lose the slum it will lead to them losing their jobs. In this way, deprivation of livelihood will then lead to deprivation of life. The two conclusions which arose were that the right to life includes right to livelihood and eviction of slum and pavement dwellers will cost them their livelihood. In observing that the right to shelter and livelihood is inextricably interlinked to the right to life in the present case, the court acknowledged that poverty can become a barrier to the realization of fundamental rights and it is necessarily required that the dignity of these people who migrate to cities and live in squalor just to earn livelihood is protected. This issue was discussed again in Chameli Singh v State of UP where the apex court discussed the United Nations General Assembly Resolution “Adoption of the International Year of Shelter for the Homeless”, Universal Declaration of Human Rights and ICESR. Universal Declaration of Human Rights under Article 25 recognises the right to housing as part of the right to an adequate standard of living and states: “Everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family, including food, clothing, housing and medical care and necessary social services” Also, the International Covenant on Economic, Social and Cultural Rights (ICESCR) under Article 11(1) guarantees the right to housing as part of the right to an adequate standard of living as well. With the notion that the right to housing of the inhabitants of the slums is not limited to a bare shelter, but extends to livelihood, health, clean drinking water, sewerage, education, food and transport facilities were strongly affirmed by the Court, the major challenge which now stands is its practical application. The agencies view the inhabitants as illegal encroachers and thus there exists an underlying prejudice while determining if they are eligible for rehabilitation. There needs to be an overhaul of the decision-making framework to include the interests and visions of different stakeholders. Further, projects need to be continuously monitored to ameliorate existing programmes and innovate new projects.

Article by Martin Neira, As a result of globalization, multinational corporations (MNCs) increasingly engage in cross- border activities and generally organize themselves as a group structure with a parent company (generally headquartered in the global north), controlling directly or indirectly one or more other companies; and subsidiaries (often operating in the global south), companies whose decisions depend directly on their parent company. According to recent estimations, there exist about 60.000 MNCs and approximately 500.000 foreign subsidiaries spread all over the world. At the same time, those concerned with the role and impact of corporations in society have increasingly considered the law an integral instrument in furthering the Corporate Social Responsibility (CSR) agenda and the implementation of its priorities. However, the extreme complexity of corporate organizations can make it hard or even impossible to assign liability to one of its specific entities. Thus, the question of under which circumstances a parent company may be held liable for alleged human rights violations and environmental damage committed by one of its subsidiaries abroad has intrigued - and still does - many practitioners around the world. This short article is not meant to be exhaustive on this topic but is rather explorative and mainly intended to foster interest in this area of law amongst the blog’s readers. I. The Doctrine of Limited Liability & The “Piercing of the Corporate Veil” As a general rule, the doctrine of limited liability holds that a company’s shareholders cannot be held liable for debts beyond the sum they have invested. This doctrine, also applicable to protect the distinctness of legal personalities between a parent company and each of its subsidiaries’, is the reason so many conglomerates are structured as a hierarchy of parent and subsidiary corporations. Pursuant to this rule, neither share ownership nor the mere ability to control a subsidiary’s activities is typically enough to make the parent company accountable for its subsidiary’s acts. What is more, the doctrine of limited liability usually applies regardless of the gravity of the damage or the economic profit the parent company is receiving from the subsidiary’s operation. Viewed cynically, this creates a compelling incentive for companies to organize their corporate structure in a way that minimizes risk and exposure, with a particular view to forum and applicable law shopping, while maximizing their profits. Limited liability was initially set up to protect the natural persons behind the company. This ratio thus has inferior relevance in a company group where only companies, and no natural persons, are behind a subsidiary. Rather, it is likely that, in a corporate group, the interest of the subsidiaries will be subordinate to the well-being of the whole group. Then, and especially when the subsidiary’s activities are wholly owned by the parent company, it is not per se logical to respect the separateness of the legal persons. Against this background, in exceptional cases, the veil of limited liability is “pierced”, and a corporation’s debts are attributed to the shareholder, which may be a parent company. In this context, “piercing the corporate veil” occurs when the liability protection afforded by a limited liability entity as well as the separation of its constitutive entities are disregarded, and the parent company is held liable for the subsidiaries’ actions as if it were its own. In this case, we refer to “indirect liability” of the parent company because the liability is established through a debt of its subsidiary. II. Jurisdictional and Applicable Law Hurdles When addressing matters involving the potential liability of a parent company for the acts of its subsidiaries abroad, the two main concerns that arise are whether or not the local courts at the place of the parent company have jurisdiction, and if so, what law(s), national or international, should apply. In April 2019, the UK’s highest Court ruled that thousands of Zambian villagers were allowed to bring a legal challenge in front of English Courts against the mining company Vedanta over alleged pollution in Zambia. Shortly after, BHP, the world’s biggest mining company, was faced with a $5bn damages claim in the UK over a 2015 dam burst that resulted in Brazil’s worst environmental disaster. These cases can found themselves part of global significant trend; parties seek to bring corporations to account by bringing actions in front of national courts from well-developed legal systems, and the courts allow those actions to proceed. But this trend is not developing uniformly around the world. In the US for example, the Supreme Court has placed, in a series of decisions, significant limitations on the ability to pursue claims under the Alien Tort Statute (ATS). The ATS is an American statute from 1789, which laid dormant for about 200 years and then evolved to be a prominent vehicle for foreign nationals to seek redress in front of U.S. courts for injuries caused by HR offenses and other tort violations “committed in violation of the law of nations or a treaty of the United States”. Particularly relevant to our discussion is Jesner v. Arab Bank, Plc, in which a narrowly divided Supreme Court essentially held that the statute did not apply to overseas companies. In any case, although getting the right to sue at the place of the parent company is important, it is only the first step in a likely very cumbersome litigation process. If the court finds jurisdiction, a rather complicated conflict of laws question arises. When the court is faced with a case in which it seems justified to pierce the corporate veil, applicable law should be determined on the basis of the underlying claim, which will usually be based on contract or on tort. Because of two possibilities to either characterize the case in view of the claim against the subsidiary or in view of the veil piercing issue, “dépeçage”—the application of the laws of different states to different issues in the same case—could be allowed. In practice, however, courts have most often negated this puzzling question and applied the “lex fori”—the law of the country where the case is tried—to the entire case. Accordingly, when approaching the issue of the piercing of the corporate veil, one is left with no choice but to compare how similar cases are dealt with in every national jurisdiction in order to avoid clashes and loopholes between the national conflict rules. And here, again, the way in which this issue is dealt with is far from being uniformly shared around the world. What is common in most jurisdictions, however, is that the use of the piercing the corporate veil doctrine by courts is seen as an ultimum remedium which is only used in clear-cut cases of abuse of limited liability. III. Conclusion – Food for Thought In consideration of the foregoing, it may seem clear that it is very unlikely that the corporate veil will be pierced when one deals with an MNC that has a good-working administration and at least theoretically clear division between its legal entities. But, establishing the liability of the parent company itself (direct liability), without using the subsidiary as an intermediary, could yield more chances. In this sense, the holding of the United States Supreme Court’s decision United States v. Best foods perhaps provides the best roadmap for bringing these types of claims successfully moving forward. In this case, the United States had brought an action for the costs of cleaning up industrial waste generated by a chemical plant, and the issue in front of the Court was whether the parent corporation that had actively participated in and exercised control over the operations of its subsidiary may be held liable as an operator of a polluting facility owned or operated by the subsidiary. The Court answered no, unless the corporate veil of the company may be pierced. The Court then added that a corporate parent that actively participated in and exercised control over the operations of the facility itself may nonetheless be held directly liable, in its own right, as an operator of the facility. Even though this case was about a national subsidiary of a corporation, this decision may provide great insight for the road practitioners should take in the in the future when trying to hold MNCs accountable for the acts of their subsidiaries abroad. May this be an invitation for a greater methodology in approaching the issue of Corporate Social Responsibility and international private law in the future, as its importance will only keep rising.