ODR and A2J for The “Invisibles”

by Daniel Rainey

“Brain Waste” is a term of art among refugee populations that refers to an all too common phenomenon involving the loss of credentials among those who have been forced to move from homelands to “safe” havens in host countries.  
A glaring example is the brain waste involving health care professionals who are forced into refugee status.  Doctors with well established credentials and years of practice find themselves without credentials recognized by the host country, unable to find work in the fields in which they were trained.  As one health professional observed, “The brain waste is appalling. These are individuals who could be taking care of children with asthma and instead are working at a car wash.”[1]
But in one sense, these displaced doctors, nurses, and health professionals are lucky.  They have at least found a haven, and they have new identities in their host countries that allow them to make a living doing something, and they are officially recognized by the host country as human beings.
For Syrian refugees in camps around the world, or for Rohingya refugees in Bangladesh, or for any number of other refugee populations living in tents or makeshift shelters, isolated from local populations and largely un-welcomed by host countries, merely having professional credentials stripped away would seem a luxury.  Refugees who land in the camps have generally lost all of the documentation that allowed them to claim a place in society - they have become, for practical purposes, invisible.
Much of the work that has been done for refugees can be grouped under the general umbrella of “Access-to-Justice” (A2J).  But, as I have argued elsewhere, A2J has traditionally been defined as access to the courts, an approach that, at best, provides tangential benefits for refugees. For even the most accessible justice systems in the world, one must exist - be a person recognized as having standing in that court’s area of control - in order to benefit.

What does this have to do with ODR?  

Online tools are being harnessed around the world in a variety of attempts to create digital identities (DIDs) that are portable and manageable.  Most of the projects currently underway focus on digital identity for citizenship, international movement, and access to social services in specific countries.  A few are designed at a more basic level and seek to simply create or recreate identities for refugees who have become invisible.

At the 2019 World Justice Forum, IBO and its partners will introduce a white paper designed to promote discussion and development of standards, ideally with the input and imprimatur of the ISO and UN.  An element of that white paper will deal with the need to establish online dispute resolution programs to handle the disputes and questions that will undoubtedly be generated by the attempt to create or recreate useable identities.

The issues involved with ODR for DID projects are not dissimilar to the issues generally faced by any ODR program:  security, access, integration of AI, use of third parties, the integrity of the process, etc.

Creating or recreating identities will offer the first steps toward access to opportunity, mobility, etc., and it may be that for those with newly minted DIDs the first instance of access to justice in a more traditional sense will be offered by ODR programs that parallel the DID programs.

[1]Dr. Jose Ramon Fernandez-Pena, in Michael Nederman, “Why Refugee Doctors Become Taxi Drivers,” CNN Health, August 9, 2017, at https://www.cnn.com/2017/08/09/health/refugee-doctors-medical-training/index.html

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