Programs in International Justice and Society

This month’s feature is contributed by LCJ Hub member Hillary Mellinger, an Assistant Professorof Criminal Justice and Criminology at Washington State University. Hillary’s research focuses on language access within the U.S. immigration and criminal justice systems, the challenges that asylum applicants and attorneys encounter at the U.S. Asylum Office, and the criminalization of migration.  Prior to earning her doctorate, she worked as a Board of Immigration Appeals (BIA) Accredited Representative at the Tahirih Justice Center, a national nonprofit organization that supports immigrant women and girls fleeing gender-based violence through a combination of legal representation, social services and public policy. 

In a recently published, open-access article, I describe the challenges that asylum applicants and attorneys encounter regarding interpretation at the Asylum Office.  Whereas U.S. immigration courts are required to provide interpreters pursuant to the Court Interpreters Act of 1978 (28 U.S.C. § 1827), the Asylum Office is beholden to a different legal statute, one that requires asylum applicants to procure their own interpreters at no expense to the government (8 C.R.F. § 208.9(g), barring exceptions for sign language, unaccompanied children, or other exceptional circumstances (see, e.g., the Affirmative Asylum Procedures Manual of 2016 and the 2019 Language Access Plan of the U.S. Department of Homeland Security).  In 2000, President Bill Clinton signed Executive Order 13166, which required federal agencies to provide language services to individuals with limited English proficiency. 

In my article, I describe how the Asylum Office balances the competing mandates of federal regulations (which require asylum applicants to provide their own interpreters, with only a few exceptions) with EO 13166 (which requires the Asylum Office to provide language services).  I focus on three research questions: When do asylum officers exercise their discretion to provide interpreters? Is this discretion exercised in a uniform way? Does the presence of an interpreter affect the dynamics of the asylum interview, and if so, how?

To answer these questions, I analyzed empirical, qualitative data that I collected from 28 interviews with U.S. immigration attorneys who represented asylum applicants before two of the eight regional U.S. Asylum Offices: the Arlington Asylum Office and the Houston Asylum Office.  I selected these offices because they were associated with relatively high asylum grants rates and comparatively low asylum grant rates, respectively.  As I explain in my article, the U.S. Asylum Office does not collect data on its provision of language services, thereby rendering it impossible to conduct a mixed-methods or solely quantitative study.

My research had four findings. First, interviewees stated that unaccompanied children were more likely than adults to be provided with interpreters. Second, interviewees reported that adults were only provided with interpreters in rare, “extraordinary circumstances.” Third, interviewees related that bilingual asylum officers would sometimes offer to conduct asylum interviews in a language other than English, although asylum applicants were not provided with advance notice of this possibility.  Fourth, 17 interviewees expressed concern that interpreters negatively affected the dynamics of asylum interviews by exacerbating language barriers.

I situate these findings within sociolegal literature on the “law-on-the-books” versus the “law-in-action”, which refers to the disparate ways in which the written, black-and-white text of the law is implemented in everyday life.  I also place my findings within the broader scholarship on intersectionality, language access within the U.S. immigration system, and the possible unintended consequences of interpretation on asylum case outcomes.

Importantly, my study was conducted prior to the COVID-19 pandemic.  However, since September 23, 2020, the Asylum Office has operated under a temporary rule in which it provides telephonic interpreters for 47 languages. Asylum applicants who do not speak one of these 47 languages, or who prefer to speak another language, must provide their own interpreters.  This temporary rule is set to expire on March 16, 2023. Since my study analyzes data collected prior to this temporary rule, my findings cannot speak to how the pandemic has changed the nature of language access at the Asylum Office.

A towering figure in international law, Hersch Lauterpacht, is soon to be recognized by English Heritage, a charitable organization that manages over 400 historic monuments, buildings and places in England. Born in 1897 near Lviv, in western Ukraine. Sir Hersch Lauterpacht QC devised the concept of crimes against humanity. In 1945, while a professor of international law at Cambridge University, he played a key role in the first trial of Nazi war criminals at Nuremberg. From 1955 to 1960, the year Lauterpacht died, he served as a judge at the International Court of Justice. English Heritage will soon place one of their iconic blue historical plaques at Lauterpacht’s longtime residence in northwest London. 

The International Bar Association (IBA) and Ukrainian Bar Association recently collaborated on a seminar aimed at Ukrainian lawyers tasked with defending Russian war crime defendants. According to the IBA, the online event provided “an overview of the basic tenets of international criminal defence work in Ukrainian courts, notably relating to the representation of individuals accused of war crimes and other international criminal law violations.” The seminar further covered “the key differences between the prosecution of domestic and international crimes; the role of the defence lawyer; advocating for a client’s innocence in the face of national opposition; ensuring a fair trial; and grounds for excluding criminal responsibility.” High profile international lawyers Peter Robinson and David Hooper were among the participants. Watch the online event on YouTube.

A recent ruling of the High Court of Justice of the Eastern Caribbean Supreme Court has held that colonial-era laws in Antigua and Barbuda criminalizing sexual activity among LGBTI persons are unconstitutional. The Inter-American Commission of Human Rights notes that this historic decision – which used a human rights approach analyzing international jurisprudence, including Inter-American standards – finds that offences known as “buggery” and “serious indecency” are unconstitutional as they violate the rights of persons with legal capacity to consent to sexual activity. In particular, “the Court found violations to the rights to liberty, protection of the law, freedom of expression, protection of personal privacy and protection for discrimination on the basis of sex.” A number of Caribbean nations still retain these outdated laws although the list of those abolishing them is growing. Read more about the decision from Global Voices. 

The United Nations General Assembly has declared that access to a clean, healthy and sustainable environment is a universal human right. An overwhelming majority of member states voted in favor of this resolution, which was first put forward by the UN Human Rights Council in 2021. No states countered the resolution, although eight countries abstained from voting , arguing that such a right can only be recognized as legally enforceable through international treaties. UN Secretary-General, António Guterres noted that the historic decision is critical in “the collective fight against the triple planetary crisis of climate change, biodiversity loss and pollution.” The global organization Greenpeace also welcomed the resolution but observed that it was a long time in coming, following “more than a decade of activism and advocacy by professionals, communities and environmental justice movements all over the world.” Greenpeace believes ongoing environmental litigation in diverse regions of the world may benefit from this new resolution.

A convention that recently entered into force strengthens the protections surrounding cultural property. The Council of Europe Convention on Offences relating to Cultural Property, otherwise known as the “Nicosia Convention”, is the only international treaty specifically dealing with the criminalization of the illicit trafficking of cultural property. As explained in an ASIL Insight, “[w]hile there are numerous international instruments for the protection of cultural property, the Nicosia Convention is the first treaty open to any country that specifically treats common cultural heritage of humanity through a criminal law perspective, bridging the gaps in the existing international legal framework. The protection of cultural property is accomplished through criminalization of the unauthorized taking and sale of cultural property (Articles 3-11), the identification of proportionate, effective, and dissuasive sanctions when criminal offenses are committed (Article 14), as well as cooperation between national authorities to facilitate the consultation and exchange of information pertaining to cultural property that has been subject to an offence (Articles 19 and 21).” Read the full convention, which includes a description of what counts as cultural property.

After years of struggles, successes and subsequent setbacks, the Ogiek people of Kenya have been granted a decisive victory – a ruling that the Kenyan government must compensate them for being evicted from their ancestral Mau Forest. In 2017, the African Court of Human and Peoples’ Rights (ACtHPR) issued a judgment detailing how the Kenyan government had violated Ogiek rights to life, property, natural resources, development, religion and culture, and calling on the authorities to recognize Ogiek access to and control over their forest. After failing to comply meaningfully with this ruling, the Kenyan government has now been directed by the ACtHPR, in a June 2022 judgment, to pay reparations to the Ogiek population of 157,850,000 Kenyan shillings, the equivalent of $1.33 million U.S. dollars, as compensation for material and moral losses. While many feel that this sum is not nearly enough, others believe that it represents an important step toward justice. Read more from the American Jewish World Service, an organization that has assisted the Ogiek people in their fight for recognition and justice.

The International Court of Justice (ICJ) recently rejected Myanmar’s preliminary objections to the case brought against it by The Gambia under the international Genocide Convention. The Gambia v. Myanmar case concerns Myanmar’s alleged genocide against the ethnic Rohingya population in Rakhine State, with a focus on military operations launched in October 2016 and August 2017. Since that time, further crimes against humanity against the Rohingya have been documented and the country has also undergone a coup d’etat with a subsequent return to military rule. 

In the preliminary objections phase of the case, Myanmar argued that The Gambia lacked standing to bring the case and that the ICJ lacked jurisdiction over the matter for several different reasons. ICJ judges rejected three of the preliminary objections raised by Myanmar unanimously and the remaining one garnered only a single dissent. The case can now proceed to the merits phase. Read more about the judgment in a commentary by international lawyer Priya Pillai in Opinio Juris.

Islands and their status under international law are the focus of a new book-length study. In Islands and International Law (Bloomsbury 2022), scholar Donald R. Rothwell (Australian National University, Canberra) explores in depth issues such as artificial islands, archipelagos, sovereignty, territorial rights, maritime entitlements, and governance.