text:
II. Refugees And Internally Displaced Persons: Do We Need To Make A Distinction?
V. Is Sovereignty A Constraint In Protecting IDP’S?
VI.Why Do The Internally Displaced Need International Legal Protection?
saw a (hu)man in me and not an alien.
Millions all over the world are currently internally displaced as a result of various causes including forcible movements to inhospitable areas, civil wars in which villages have been destroyed and ethnic persecution through government policies. Yet the plight of internally displaced persons is a problem that is not directly addressed by any international instrument, thereby contributing to the ad hoc nature of the international community’s response to such crises. The failure of the international community to address this problem may result in a threat to the internal stability of states, since those persons who are not assisted and protected in their own country often seek such assistance and protection as refugees in other countries. In doing so, they join the already swollen ranks of the approximately 17 million refugees. Given the recent heightened awareness of the suffering endured by internally displaced persons, it is time for the international community to address this problem from a legal standpoint.
The phenomenon of internal displacement has gradually become an internationalised one, and the reason behind this trend is not far to seek. The presence of internally displaced persons within national territory means that their own government bears primary responsibility for meeting their protection and assistance needs. The irony of this is glaring, since more often than not, it is these very governments that cause or, to a lesser level of fault, tolerate such internal displacement. Therefore, in most cases, they are either unwilling or unable to guarantee the basic rights and minimum needs of their internally displaced persons. This has led to the international community, inter-governmental and non- governmental organisations taking up the cause of these hapless people. It is this issue which has controversially forced itself onto the agenda of international refugee law that is the focus of analysis in the present paper. The present article raises the fundamental issues in the discourse focussing on the development of a regime for the protection of IDP’s. It must be clarified at the very outset that this paper is based on the premise that IDP’s in most cases would not include cases of development- induced displacement, for reasons explained in a subsequent section of the present paper. Therefore, a critique of development- induced displacement (possibly focussing on the Narmada decision in the Indian context) is outside the scope of detailed analysis in this paper.
It is often impossible and nearly always counter-productive and nearsighted to care only for the refugees, while ignoring their nearby compatriots who were internally displaced for many of the same reasons. A comprehensive approach to the global refugee problem must, for both pragmatic and ethical reasons, also address the situation of internally displaced people.
Many of the world’s internally displaced have been forced to abandon their homes for precisely the same reasons as refugees. External and internal population displacements often take place within and from the same country at the same time. And in some situations, they involve the same people. While remarkably little is known about the dynamics of forced migration, it is clear that many people whose lives and liberty are at risk initially seek sanctuary within their own country, and only go into exile as a last resort. In other situations, moreover, internally displaced populations include sizeable numbers of former refugees who have been uprooted for a second time after returning to their homeland.
The first element of Convention refugee status is that the claimant must be outside his or her country of origin. Their plight may be every bit as serious as that of individuals who cross borders, yet the Convention definition of refugee status excludes internal displaced persons from the scope of global protection. This strict insistence on the territorial criterion has prompted concern that there is a mismatch between the definition and the human suffering consequent to involuntary migration. In one sense, the exclusion of internal refugees is clearly unfair: It does not recognise the existence of social, legal, and economic barriers which make it impossible for all to escape to international protection. The Convention definition of refugee status therefore responds in a less than even- handed way to the protection needs of persons similarly at risk of persecution.
James Hathaway reviews the historical and practical reasons which led to alienage being prescribed as a criteria for determining refugee status. According to him, there is a threefold historical rationale for the requirement that only persons outside their State be eligible for Convention refugee status.
First, the Convention was drafted with a specific purpose in the context of limited international resources. Its intent was not to relieve the suffering of all involuntary migrants, but rather to deal only with the problem of legal protection and status. Its goal was to assist a sub- set of involuntary migrants composed of persons who were “outside their own countries [and] who lacked the protection of a government”, and who consequently required short- term surrogate international rights until they acquired new or renewed national protection. Internal refugee displacements, while of humanitarian note, “were separate problems of a different character”, the alleviation of which would demand a more sustained commitment of resources than was available to the international community.
Second, there was a very practical concern that the inclusion of internal refugees in the international protection regime might prompt States to attempt to shift responsibility for the well- being of large parts of their own population to the world community. The obligations of States under the Convention would thereby be increased, as a result of which fewer States would be likely to participate in the Convention regime.
Third, and most fundamental, there was an anxiety that any attempt to respond to the needs of internal refugees would constitute an infringement of the national sovereignty of the State within which the refugee resided. Refugee law, as part of international human rights law, constitute a recent and carefully constrained exception to the long- standing rule of exclusive jurisdiction of States over their inhabitants. While it was increasingly accepted in the early 1950’s that the world community had a legitimate right to set standards and scrutinise the human rights record of the various countries, it was unthinkable that refugee law would intervene in the territory of a State to protect citizens from their own government. The best that could be achieved within the context of the accepted rules of international law was the sheltering of such persons as were able to liberate themselves from the territorial jurisdiction of a persecutory State.
None of the three factors which dictated the exclusion of internal refugees- limited resources, concern about State participation, or respect for sovereignty- was so much a matter of conceptual principle, as it was a reflection of the limited reach of international law. The territorial dimension of the Convention definition of refugee status, then, was dictated by the extant authority of international law.
There are diverse computations of the actual number of internally displaced people in the world today. However, there is a broad international consensus that the global population of internally displaced people stands somewhere in the region of 25 to 30 million: up to 16 million in Africa, six or seven million in Asia, around five million in Europeand up to three million in the Americas.
It is not easy to ascertain the number and location of the world’s internally displaced people. This is attributable not only to the problems in defining ‘internally displaced persons’, but also because of several institutional, political and operational obstacles. Unlike the collection of refugee statistics, a task undertaken by UNHCR, no single UN agency has assumed responsibility for the collection of figures on internally displaced populations.
The question of internal displacement is also a politically sensitive one for sovereign states. Governments are often unwilling to admit to the presence of such populations on their territory, since they are indicative of the state’s failure to protect its citizens. Further, internally displaced people may themselves be reluctant to report to or register with the local authorities.
Finally, there are some very obvious obstacles to the collection of data in areas affected by ongoing armed conflicts. In the combat zones of Liberia, Somalia and Zaire, for example, the international presence is minimal or non-existent, making it extremely difficult even to provide rough estimates of the number of people who have been displaced. Thus in Sierra Leone, the statistics have been based on food aid beneficiary lists, and probably reflect only a fraction of the displaced population. In other situations, such as Chechnya, internally displaced people are highly mobile, again making it very difficult to determine their exact numbers at any moment in time.
Regardless of the figure used, the magnitude of the number becomes even more apparent when it is contrasted with the smaller figure of 17 million refugees worldwide. The number of internally displaced persons is still more unsettling given that refugees are covered by a fairly extensive system of international protection, whereas internally displaced persons have no such system of protection.
Any attempt at defining the term ‘internally displaced persons’ throws up a number of complex, inter- related issues. One of the principal difficulties encountered in establishing a more systematic approach to the plight of internally displaced people is the debatable nature of the concept itself. If there is to be a special legal regime for IDP’s, then its beneficiaries would have to be clearly identified. Prof. Chimni comments that any definition would have to avoid the twin pitfalls of being overly broad or narrow. In the former place, practically anyone would qualify as an IDP. Some analysts limit the term to people who have left their usual place of residence in the context of large-scale movements, and in circumstances similar to those which create refugees. Others, however, tend to employ the concept in relation to all those people who have moved within their own country for reasons that are not entirely voluntary. This includes, for example, changes of residence induced by environmental and industrial disasters, as well as the forcible relocation and population distribution programmes which governments often employ to counter security threats and to implement large-scale development projects.
Should all categories of IDP’s, irrespective of their cause of displacement, be beneficiaries of a separate legal framework or only those who are the victims of human rights violations? On the other hand, if the definition were overly narrow it may leave too many people outside the protection net. In that case, the very purpose of having a separate legal regime would be lost. A special regime would also need to address the question as to when an individual ceases to be a displaced person.
There are many who question the advisability of creating a distinct legal category of ‘internally displaced persons’. Even assuming that a definition of the concept can be agreed upon, it would undoubtedly be difficult to apply in practice. A large proportion of the world’s internally displaced people, for example, are to be found in urban areas, where their situation is virtually indistinguishable from other rural-to-urban migrants.
The definition of internal displacement generally excludes from its scope those situations in which people are obliged to move as a result of environmental disasters, development projects and infrastructural schemes. For although such people often suffer from material and psychological hardship, they may also continue to benefit from the protection of the state, and may even receive some form of compensation from it.
In general, there is a strong case to be made for the argument that internally displaced people do not necessarily have to return to their original place of residence in order to find a solution to their plight, as long as they benefit from the protection of the state and are able to enjoy a satisfactory degree of physical, material and legal security in the location where they have settled. In South Africa, for example, the number of internally displaced people is said by some sources to be in the region of four million, although this total includes those who have been uprooted or relocated over a period of 30 years, many of whom are now fully settled and integrated in their place of residence. The concept of internally displaced people – which is problematic enough in any case – clearly loses even more of its value when used in this indiscriminate manner. Therefore, not all problems of the internally displaced are homogenous, and there is a need for their definite prioritisation with maximum attention being devoted to the most serious problems.
This definition has been described as both too broad and too narrow. Including victims of natural disasters is said to make it unduly broad. Persons fleeing armed conflict, internal strife, and systematic violations of human rights would, if they were able to cross a border, qualify as refugees both under the Organisation of African Unity (OAU) Convention and the Cartagena Declaration, and, arguably, in many cases, under the narrower definition of the Refugee Convention as well. But persons uprooted by natural disasters would not: they generally are not in need of international protection of their human rights. Moreover, their governments and the international community are usually willing- if not always able- to provide them with assistance. The argument for retaining them in the definition is based essentially on cases where governments respond to natural disasters by persecuting certain groups on political or ethnic grounds or by violating their human rights in other ways. For example, when drought and famine ravaged Ethiopia in the mid- 1980’s, the government forcibly relocated hundreds of thousands of Tigereans it regarded as political opponents, under the pretext of responding to a natural disaster. In other countries, persons have also been displaced because of a combination of natural causes and racial, social or political reasons. Maintaining natural disasters in the text, it is argued, would assure protection for such persons.
A better solution, however, might be to qualify the term so that it covers cases involving human right violations and persecution but not all victims of natural disasters.
The same reasoning would apply to man- made disasters, for example, ecological or nuclear disasters. Whereas displaced populations in many of these cases should readily receive assistance from their governments and/ or from the international community, other cases may be complicated by persecution and systematic violations of human rights or the need for international protection. It is the latter cases that should be covered by the definition. The same would be true for development projects that cause displacement.
The quantitative and time qualifiers in the definition, on the other hand, make it unduly narrow. Restricting the internally displaced to those forced to leave ‘suddenly or unexpectedly in large numbers’ would exclude serious cases of internal displacement- such as in Colombia, where the displaced often flee in large numbers, making them less conspicuous; or in Iraq, where the government organised the uprooting of Kurds over a period of years in the late 1970’s, 1980s and early 1990s.
The term ‘forced to flee’ is also narrow. Countless numbers in Burma, Iraq and Ethiopia have been forcibly moved by their governments on political and ethnic grounds: they did not flee. Nor did Bosnian Muslims forcibly expelled from their homes in Banja Luka and other areas of Bosnia on ethnic and religious grounds. Such persons should explicitly be included as internally displaced.
The definition essentially should help identify persons who should be of concern to the international community because they are basically in refugee- like situations within their own countries, and their own governments are unwilling or unable to protect and assist them. Some development agencies have proposed expanding the definition to encompass those who migrate because of poverty or other economic causes. But this would add millions of persons to the definition who have not fled or been forced out from their homes and whose needs are best addressed by development programmes generated by national and international agencies.
The internally displaced should be defined as persons or groups of persons who have been forced to flee, or leave, their homes or places of habitual residence as a result of armed conflict, internal strife and systematic violations of human rights, as well as natural or man- made disasters involving one or more of these elements, and who have not crossed an internationally recognised State border. What should make internally displaced persons of concern to the international community should be the coercion that impels their movement, their subjection to human rights abuse as a result of this uprootedness, and the lack of protection available within their own countries.
When an internally displaced person ceases to be displaced also needs clarification. Conventional wisdom would have it that the voluntary return of the displaced to their homes or their re- integration elsewhere marks the end of internal displacement. But if protection is largely lacking in these areas and their land and homes are occupied by others, can internal displacement be said to be over? In Angola, for example, groups of internally displaced persons voluntarily transported back to their home areas found that they could not remain there because all infrastructure had been destroyed and they had no means of sustaining themselves. The mere act of return therefore did not end their internal displacement. Determining when internal displacements is ended should go beyond merely registering whether return or relocation has taken place. It should include whether the returns or relocations are reasonably viable and whether basic security and survival are assured.
One of the fundamental purposes of the United Nations is to promote and encourage “respect for human rights and fundamental freedoms,” Yet at the same time, its Charter prohibits it from “interven[ing] in matters which are essentially within the domestic jurisdiction of any State.” International human rights law exists in tension between the opposing tendencies of “State-centred” guarantees of sovereign equality and non- intervention, and the “individual-centred” commitment to human rights. By their own acceptance of international conventions guaranteeing human rights, many States have consented to international scrutiny of some aspects of their treatment of their own citizens within their own borders. A more difficult theoretical and practical problem arises, however, when States violate these binding norms. How then can the U.N. reconcile its mission of promoting human rights with its commitment to state sovereignty?
The United Nations High Commissioner for Refugees (UNHCR) has been at the forefront of U.N. efforts on behalf of IDPs. Although the UNHCR’s mandate expressly furnishes it with authority to provide international assistance to refugees outside their home countries, the UNHCR has acted pursuant to its flexible, extra-statutory “good offices” powers to bring IDPs within its area of concern.
On a more normative and theoretical level, moreover, to protect the human rights of refugees because they have crossed an international border, while ignoring the plight of IDPs because they have not, violates the fundamental principle that human rights are inherent in the individual and should not depend on the accident of location.
The international community’s failure to honour its commitment to share the burdens of caring for refugees has only exacerbated the problem. Refugee-receiving States have therefore greeted the humanitarian concern for IDP protection with enthusiasm. Protecting potential refugees while still within their country of origin is far less permanent and costly than granting them asylum abroad.
Provided that the displaced do not cross into any one State, moreover, their protection can arguably be described as purely an international obligation. For example, when Turkey refused to admit Kurds fleeing Iraqi repression at the end of the Gulf War, the international community established safe havens within Iraq as a substitute for asylum. Although the UNHCR insists that such preventive protection must not be used to undermine the right to seek refuge abroad, in practice it has been asserted both as a justification for the Croatian refusal to receive Bosnian refugees and the Thai expulsion of Cambodians.
Is sovereignty a constraint in protecting IDP’s? Member states still invoke Article 2(7) as a defence against United Nations discussion of their human rights record. Further, even if all states accepted the principle that human rights are a fit subject of international concern and therefore not essentially within a state’s domestic jurisdiction, they still would need to answer the question of how the international community can lawfully express that concern. As the International Law Commission has pointed out, the fact of an international obligation is a distinct legal issue from the consequences of its breach. Article 2(7) has been invoked as a barrier to almost any form of U.N. action in this area.
In any armed conflict, and particularly those with ethnic or religious underpinnings, the humanitarian needs are immense - and the means to satisfy those needs within the conflict area are severely limited. Internally displaced civilian populations move from one place to another, seeking safety and protection inside their own country. Forced population movements resulting in mass exoduses constitute by their very nature infringements of international human rights and humanitarian law. In his compilation and analysis of legal norms pertaining to internally displaced persons, the Representative of the SecretaryGeneral identified a number of human rights norms that are violated when forced displacement occurs. In particular, the fundamental right to freedom of movement and to choose one’s own residence, as well as the right to housing are jeopardised. Forced displacement is also prohibited by international humanitarian law, in particular articles 49 and 147 of the Fourth Geneva Convention, article 17 of Protocol II Additional to the Geneva Conventions, entitled “Prohibition of forced movement of civilians”, and articles 51 (7) and 85 (4) (a) of Additional Protocol I.
Sometimes internally displaced persons find a degree of security, but the price they invariably pay is that of being completely uprooted - of losing their homes, their jobs and their livelihoods. More often than not for these people, interior exile leads only to more suffering, insecurity, harassment and persecution. Increasingly, the displacement of civilian populations - under the guise of “ethnic cleansing” or some other pretext - is no longer a by-product of war, but the very goal thereof. And all too often, displaced persons are suspected of allegiance to an enemy clan or political group. Almost always they are caught in the crossfire and become pawns in a sordid bargaining game. They are forced by one side to give military service, and accused by the other of treason. In general, it is virtually impossible for these displaced persons to maintain any sort of “neutrality.” They are caught in a no-win situation.
Internally displaced people can also be exposed to more direct physical threats. In a number of countries, camps and settlements for displaced persons have been the target of attacks by the warring parties – a particular problem in situations where those camps are believed to accommodate military elements. One of the most tragic instances of this type occurred at the Kibeho camp in Rwanda in April 1995, when thousands of internally displaced people (the exact number has not been established) were killed during a military operation designed to close down the camp and send its residents back to their places of origin. Armed attacks on camps, settlements and so-called ‘safe areas’ accommodating the internally displaced have also occurred in countries such as Bosnia, Burundi, Chechnya, Lebanon, Liberia, Sudan and Sri Lanka, resulting in thousands of deaths and forcing many other people to flee for a second time.
When refugees, returnees and internally displaced persons are hosted in the same area, conflicts sometimes erupt between them. This has been the case for example in north Burundi, where Burundian Tutsi internally displaced persons and Rwandan Hutu refugees are housed in camps that are next to each other and are frequently competing for access to the same scarce resources.
Refugees and displaced persons are often subjected to forced recruitment. According to the Special Rapporteur on the former Yugoslavia, thousands of Serb refugees from Croatia and the Krajina region have been allegedly forcibly conscripted and for that purpose expelled to Serbcontrolled territories in Croatia and Bosnia and Herzegovina.
Scholarly opinion is divided on the need for evolving a specific legal framework to meet the assistance and protection needs of IDP’s. One school of thought contends that the existing regime of international human rights and humanitarian laws offer a firm basis to enforce the accountability of states. Indeed, it argues that any attempt to produce a separate legal regime for IDP’s could undercut the extensive legal framework which already exists. The other school of thought believes that there is a need for a definitive legal statement of the principles and norms applicable to the IDP’s.
(iii)	those who call for a more radical and comprehensive legal framework, covering all forms of forced displacement.
Then, why is there a need to develop a new and separate legal regime for the protection of IDP’s. It is essentially to redress the three important perceived weaknesses of the existing framework of legal protection.
First, given its primary concern to regulate the behaviour of states and government institutions, international law is limited in its application to actors such as rebel groups or warlords.
Second, it is sadly the case that some states have not ratified the key human rights treaties, nor the Geneva Conventions and their Protocols.
Third, many provisions of international human rights law can in any case be suspended when a national emergency has been declared – precisely the circumstances which generate the largest movements of internally displaced people.
principles relating to return or resettlement and integration.
Although internally displaced persons have departed from their homes, unlike refugees they have not left the country of which they are citizens. As such, they remain entitled to enjoy the full range of human rights as well as those guarantees of international humanitarian law which are applicable in a given situation.
Internally displaced persons experience a very special factual situation, and therefore, have specific needs. Like other vulnerable groups such as children, or the wounded and the sick for whom special provisions are made in international humanitarian law and refugee law, internally displaced persons do not constitute a distinct legal category. However, they have many special needs and the point of departure for the Guiding Principles has been the identification of these specific needs.
It is necessary to restate in more detail those legal provisions which respond to the needs of the internally displaced persons and to spell them out in order to facilitate their application in situations of internal displacement. Present international law contains sufficient protection for the specific needs of internally displaced persons in specific areas, but there are many grey areas where clarification is necessary.
(iii)	in situations of inter-state armed conflict, the detailed provisions of international humanitarian law become primarily operative although many important human rights guarantees become applicable.
Given the application of such diverse sets of laws in different situations, it is often difficult, in practice to determine as to which norms apply to a particular situation. The Guiding Principles which cover all three situations attempt to facilitate the invocation and application of relevant legal norms. While they identify those specific guarantees which have to observed in all situations, at the same time, they differentiate between these situations where necessary.
There are certain areas in contemporary international law where a general norm exists but a specific norm that would ensure implementation of the general norm has not yet been articulated. Many Guiding Principles try to specify in a more detailed manner the meaning of general norms for the special situation of displacement. Principle 12, for instance, first states that ‘every human being has the right to liberty and security of person’- a principle that is stated in a host of international human rights instruments. It then goes on to say that ‘in order to give effect to this right for internally displaced persons, they shall not be interned or confined to a camp...”.
Finally, the Guiding Principles attempt to progressively develop certain general principles of human rights law where existing treaties and conventions may contain some gaps. One example is the prohibition of return to situations of imminent danger. Such a prohibition can be deduced from the prohibition of inhuman treatment, as it has been recognised by international monitoring bodies that it is inhuman to send a person to a country where he or she will face torture, death or similar human right violations. However, case law on this aspect focuses on return across international borders, a prohibition of inhuman return of internally displaced persons to dangerous areas within their own country needs to be specifically articulated. Therefore, Principle 15 states that the right of internally displaced persons ‘to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/ or health would be at risk.’ Such a principle, although yet to be stated in an authoritative international law instrument, is in line with the spirit of existing international law and reflects its underlying principles. Thus, the Guiding Principles aim to clarify some grey areas of international law by adapting them to suit the requirements of protecting internally displaced populations.
With respect to the actual significance of these principles, it is primarily intended to provide guidance to the Representative in implementing his mandate, in particular in his dialogue with states; to states facing situations of internal displacement; to all other authorities, groups and persons in their relations with internally displaced persons; and to inter- governmental and non- governmental organisations when addressing internal displacement. It is also a highly persuasive compilation and consolidation of the existing international regime on the subject. Thus, it constitutes an important tool for addressing the protection and assistance needs of internally displaced persons as well as contributing to the prevention of internal displacement in the future.
With respect to their legal character, the Guiding Principles are neither a draft declaration on the rights of the internally displaced persons nor do they constitute, as such, a binding instrument. However, they ‘reflect and are consistent with international human rights law and international humanitarian law.’ They aim to provide practical guidance to all those dealing with internally displaced persons. They will guide the Representative of the Secretary- General in carrying out his mandate and provide him with a means for assessing specific situations of displacement. They should also guide States faced with problems of internal displacement, as well as other authorities, groups and persons. It also promises to be of use to inter- governmental and non- governmental organisations in fulfilling their mandates.
If one day, these principles get some authority, it is authority drawn from the underlying hard law which they reflect, as well as the fact that they help to improve the often tragic fate affecting the internally displaced all over the world.
People have been uprooted by persecution, famine and conflict all round the world. There does exist an international regime to safeguard the interests of a certain category of this group- of those coming within the definition of the term ‘refugee’. James Hathaway is right in stating that refugee law serves fewer and fewer people, less and less well, as time goes on. Internally displaced persons form another category of this group which while being in a position that is worse than that in which refugees are situated, do not come under the protectoral umbrella of any international human rights regime.
Although refugees have received far more international attention and aid in recent years, the number of internally displaced persons far outweighs the number of those who have achieved refugee status. In fact, the numbers suggest that there are up to twice as many internally displaced persons as recognized refugees. Impossibilities and impracticabilities in granting assistance, organizing support, and maintaining missions are some of the reasons this large group garners insufficient attention.
It may reasonably be predicted that the problem of internally displaced persons, for a number of different reasons, will increase even further in the future. Therefore, a comprehensive approach to the global refugee problem must, for both pragmatic and ethical reasons, also address the situation of internally displaced people.
The problem of protecting the internally displaced will continue to haunt the international community as long as effective human rights protection for all of the world’s population cannot be assured. The plight of the internally displaced is often due to their own government’s actions or tacit acquiescence. The problem therefore cannot be resolved without considering the question of how far sovereignty continues to restrain international humanitarian efforts. The resolution of this dilemma would be the key imperative for forging a meaningful solution to the problem of internally displaced persons.
Further, inter- agency co- operation is a pre- requisite for forging an effective institutional framework for the protection of the internally displaced. The UN High Commissioner for Human Rights, UNHCR, the Emergency Relief Co- ordinator (ERC), the Office for the Co- ordination of Humanitarian Affairs (OCHA), the United Nations Development Programme (UNDP), UNICEF, WFP, WHO, IOM, ICRC and other related development and assistance organisations must collaborate and develop ‘frameworks of co- operation’ to promote protection, assistance and development for internally displaced persons, among others, by appointing focal points within their organisations for these matters. Inter- agency co- ordination would be preferable to the establishment of a new agency, for which there is no political will, or to the assumption of such a mandate by an existing agency, which is simply not viable.
	Final Year, B.A. LL.B. (Hons.), National Law School of India University. The author is grateful to Prof. V. Vijayakumar, who supervised the writing of the present paper, for his insightful comments and suggestions.
	R. Elhanan B. Abraham Helin, Poem Written on the Expulsion of the Jews of Frankfurt, Germany (1692), reprinted in 6 Encyclopedia Judaica 1071 (1971).
	Ravinder Gidda, Poem Written on Occupancy of the Detention Camp for Refugees in Tubingen, Germany (1982), reprinted in Lager Und Menschliche Wurde, 116-17 (1982).
	Report on Refugees, Displaced Persons and Returnees, Prepared by Mr. Jacques Cuenod, Consultant, U.N. ESCOR, 2d Sess., Annex, Provisional Agenda Item 12, U.N.Doc. E/109/Add.1 (1991).
	The mandate of the Representative of the Secretary- General on Internally Displaced Persons, Mr. Francis Deng, and his work on behalf of the UN Commission on Human Rights is an instance of the increasing international concern in this regard.
	But above and beyond the strict legal definitions, the ability of international organisations like UNHCR to intervene is very much determined by the presence or not of a frontier between the displaced persons and the authorities of their home country. Sovereign states are often unwilling to allow the international community to intervene in problems affecting their own citizens within their national boundaries. The argument of these States is that these are essentially matters of its domestic jurisdiction, and that any intervention within this sovereign sphere would amount an unlawful intervention which constitutes a violation of international law.
	Andrew Shacknove, “Who is a Refugee?” 95 Ethics 274, 277 (1985).
	See James Hathaway, The Law of Refugee Status pp. 29- 33 (1991).
	Statement of Mr. Henkin of the USA, UN Doc.E/ AC.7/SR.161, at page 7, I8 August, 1950.
	Statement of Mrs. Roosevelt of the United States of America, 5 UNGAOR at p.473, 2 December 1949.
	As Andrew Shacknove has observed, “alienage is an unnecessary condition for establishing refugee status. It ... is a subject of a broader category: the physical access of the international community to the unprotected person.” Andrew Shacknove, “Who is a Refugee?” 95 Ethics 274, 277 (1985).
In other words, the physical presence of the unprotected person outside his or her country of origin is not a constitutive element of his or her refugeehood, but is rather a practical condition precedent to placing her within the effective scope of international protection.
	Predominantly in the former Yugoslavia and the Caucasus region.
	F. Deng, ‘Internally displaced persons: report of the Representative of the Secretary-General’, 1995, UN Document UN/E/CN.4/1995/50, para. 11.
	Indeed, there is evidence to suggest that a large proportion of the world’s internally displaced people live not in highly visible camps, but mingled with family members and friends, often in urban areas where they can enjoy a higher degree of anonymity.
	See Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150.
	Exceptions to this rule, however, are not very difficult to find. During the mid-1980s, for example, the Ethiopian government moved many thousands of people from the northern highlands to the south-west of the country, employing varying degrees of coercion and inducement. Ostensibly introduced to remove people from an area afflicted by chronic problems of drought, famine and land degradation, this organised resettlement programme also served the purpose of depopulating an area inhabited by supporters of an armed opposition movement, the Tigray People’s Liberation Front.
	See, for example, US Committee for Refugees, World Refugee Survey 1992, Washington DC, 1995, p. 44.
	R. Cohen, ‘Protecting the internally displaced’, World Refugee Survey 1996, US Committee for Refugees, Washington DC, 1996.
	Analytical Report of the Secretary- General on Internally Displaced Persons, E/CN.4/1992/23, 14 February 1992 para 17.
	Broadly defined as in the OAU Convention and the Cartagena Declaration as well as in the Refugee Convention.
	U.N. Charter Art. 1, para. 3; see also Art. 55 (stating that the U.N. ‘shall promote ... universal respect for, and observance of, human rights and fundamental freedoms”; Art. 56 (committing Members “to take joint and separate action in co- operation” with the U.N. to promote the objectives of Article 2, Paragraph 7).
	See Bartram S. Brown, “The Protection of Human Rights in Disintegrating States: A New Challenge”, 68 Chi.-Kent L. Rev. 203, 204 (1992).
	Although the Charter technically prohibits non interference with State sovereignty but interference and intervention in “matters which are essentially within the domestic jurisdiction of any state,” U.N. Charter Art. 2, para. 7, this Chapter applies the prevailing terms of discussion by using “sovereignty” as a shorthand for exclusive control over domestic jurisdiction.
	Javier Perez de Cuellar, Report of the Secretary-General on the Work of the Organization, 1991 U.N.Y.B. 3, 8.
	Roberta Cohen & Jacques Cuenod, Improving Institutional Arrangements for the Internally Displaced 20, 26 (1995).
	Statute of the UNHCR, G.A. Res. 428, U.N. GAOR, 5th Sess. P 6, U.N. Doc. A/RES/428 (1950) (stating that the UNHCR’s competence extends to refugees as defined in the Refugee Convention).
	Statute of the UNHCR, G.A. Res. 428, (describing the High Commissioner’s good offices powers); see, e.g., G.A. Res. 50/152, U.N. GAOR, 50th Sess. P 8, U.N. Doc. A/RES/50/152 (reaffirming support for the UNHCR’s actions on behalf of IDPs “on the basis of a specific request from the Secretary-General or the competent principal organs of the United Nations”).
	See Luke T. Lee, “Legal Status of Internally Displaced Persons”, 86 Am. Soc’y Int’l L. Proc. 630, 631 (1992).
	See, e.g., G.A. Res. 48/116, U.N. GAOR, 48th Sess. PP 9, 23, U.N. Doc. A/RES/48/116 (1993) (stressing the importance of burden-sharing).
	See Joan Fitzpatrick, “Flight from Asylum: Trends Towards Temporary “Refuge” and Local Responses to Forced Migrations,” 35 Va. J. Int’l L. 13, 30 (1994).
	Bill Frelick, “Preventive Protection and the Right to Seek Asylum: A Preliminary Look at Bosnia and Croatia”, 4 Int’l J. Refugee L. 439, 441 (1992).
	David Petrasek, “New Standards for the Protection of Internally Displaced Persons: A Proposal for a Comprehensive Approach”, Refugee Surv. Q., Spring/Summer 1995, at 285, 286.
	Frelick, op cit at 449-53.
	Fitzpatrick, op cit at 23.
	Abram, op cit at 69.
	Report of the International Law Commission on the Work of Its Thirty-Second Session, U.N. Doc. A/25/10 (stating that “it is one thing to state a rule and the content of the obligation it imposes, and another to determine ... what the consequences of ... [its] breach must be”), reprinted in 1980 Y.B. Int’l. L. Comm’n 2(2), P 24.
	For a full analysis of the Kibeho incident, see S. Kleine-Ahlbrandt, The Protection Gap: The International Protection of Internally Displaced People: The Case of Rwanda (1996).
	(A/50/727, annex). Similar concerns have also been raised in the case of the Rwandan refugees, including children in Zaire, who have not yet been demobilised (E/CN.4/1996/68).
	“The ICRC and internally displaced persons”, International Review of the Red Cross, no. 305, 1995, p. 185. See also P. Lavoyer, “Refugees and internally displaced persons: international humanitarian law and the role of the ICRC”, Int’l Review of the Red Cross, no. 305 170 (1995).
	These principles are based on the Compilation and Analysis of Legal Norms pertaining to internally displaced persons submitted by Dr. Deng to the Commission on Human Rights in 1996. See, UN Doc. E/CN.4/1996/52/Add. 2.
The Commission requested the Representative to develop a normative framework to enhance the protection of internally displaced persons. The Guiding Principles, submitted in 1998 are a response to that request. Subsequent to the submission of the Principles, the Commission on Human Rights, in its Resolution 1998/ 50 took note of ‘the stated intention of the representative of the Secretary- General to make use of the Guiding Principles in his dialogue with Governments and inter-governmental and non- governmental organizations’, and requested him to report to the Commission, ‘on the views expressed to him’. See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 558(1998).
	See, Simon Bagshaw, “Internally Displaced Persons at the Fifty- Fourth Session of the United Nations Commission on Human Rights”, 10 International Journal of Refugee Law 548, 549 (1998).
	This definition was first used in the Secretary- General’s 1992 analytical report on internally displaced persons: See UN Doc. E/CN.4/1992/23 (1992) (para 17).
	UN Doc. E/CN.4/1998/53/ Add.2, para 2.
	See R. Cohen and F. M. Deng, Masses in Flight: The Global Crisis of Internal Displacement 16- 19 (1998).
	Such instances have taken place in Myanmar, Iraq, Ethiopia and the erstwhile Yugoslavia. See R. Cohen and F. M. Deng, Masses in Flight: The Global Crisis of Internal Displacement 16- 19 (1998).
	See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 557, 559- 560(1998).
	Thus, for example, principle 7 on the modalities of displacement carefully distinguishes between the emergency stages of armed conflicts, and disasters where, realistically, only very minimal guarantees can be observed by authorities, and other situations where procedural safeguards are possible. Another example is principle 10 setting out in paragraph 1, the right to life in general, and specifying in paragraph 2 the guarantees which are relevant in situations of armed conflict only.
	Principle 17 similarly, states the general right to respect of family and then highlights particular aspects of this right which are of special importance to internally displaced persons (for example, the right of internally displaced families to remain together when relocated or interned in camps).
	A similar example is Principle 6 on ‘the right to be protected against being arbitrarily displaced’. No existing international law document explicitly enumerates such a right. However, humanitarian law prohibits displacement in some specific and limited situations and human rights law, in a more general sense, guarantees not only the freedom of movement but also the right to choose one’s own residence, and thus, a right to remain. A right not to be displaced is also found in international law documents pertaining to the rights of indigenous populations. From this, it can be inferred that a right not to be arbitrarily displaced is already implicit in international law. See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 557, 561(1998).
	As stated in para 3 of the Introduction to the Principles.
	See, Walter Kalin, The Guiding Principles on Internal Displacement- Introduction, 10 International Journal of Refugee Law 558, 562 (1998).
	James C. Hathaway, Can International Refugee Law Be Made Relevant Again?, World Refugee Survey 14, 19 (1996).
	Formerly called the Department for Humanitarian Affairs.
	These organisations can also focus on the problems of internally displaced persons through the establishment of a comprehensive and coherent data collection system. In fact, such a project has been ‘outsourced’ to the Norwegian Refugee Council and its Global IDP Survey aims to compile a database of country and regional information on internally displaced persons. The Global IDP Survey can be found on the internet at: http://web.sol.no/nrc-no/idp.htm.

matches:
V.
V.
Art. 1
Art. 55
Art. 56
Art. 2


CLARK ET UX. v. RAMEKER, TRUSTEE, ET AL.
When petitioners filed for Chapter 7 bankruptcy, they sought to exclude roughly $300,000 in an inherited individual retirement account (IRA) from the bankruptcy estate using the "retirement funds" exemption. See 11 U. S. C. §522(b)(3)(C). The Bankruptcy Court concluded that an inherited IRA does not share the same characteristics as a traditional IRA and disallowed the exemption. The District Court reversed, explaining that the exemption covers any account in which the funds were originally accumulated for retirement purposes. The Seventh Circuit disagreed and reversed the District Court.
Held: Funds held in inherited IRAs are not "retirement funds" within the meaning of §522(b)(3)(C). Pp. 4-11.
(a) The ordinary meaning of "retirement funds" is properly understood to be sums of money set aside for the day an individual stops working. Three legal characteristics of inherited IRAs provide objective evidence that they do not contain such funds. First, the holder of an inherited IRA may never invest additional money in the account. 26 U. S. C. §219(d)(4). Second, holders of inherited IRAs are required to withdraw money from the accounts, no matter how far they are from retirement. §§408(a)(6), 401(a)(9)(B). Finally, the holder of an inherited IRA may withdraw the entire balance of the account at any time--and use it for any purpose--without penalty. Pp. 4-6.
(b) This reading is consistent with the purpose of the Bankruptcy Code's exemption provisions, which effectuate a careful balance between the creditor's interest in recovering assets and the debtor's interest in protecting essential needs. Allowing debtors to protect funds in traditional and Roth IRAs ensures that debtors will be able to meet their basic needs during their retirement years. By contrast, nothing about an inherited IRA's legal characteristics prevent or discourage an individual from using the entire balance immediately after bankruptcy for purposes of current consumption. The "retirement funds" exemption should not be read in a manner that would convert the bankruptcy objective of protecting debtors' basic needs into a "free pass," Schwab v. Reilly, 560 U. S. 770, 791. Pp. 6-7.
(c) Petitioners' counterarguments do not overcome the statute's text and purpose. Their claim that funds in an inherited IRA are retirement funds because, at some point, they were set aside for retirement, conflicts with ordinary usage and would render the term "retirement funds," as used in §522(b)(3)(C), superfluous. Congress could have achieved the exact same result without specifying the funds as "retirement funds." And the absence of the phrase "debtor's interest," which appears in many other §522 exemptions, does not indicate that §522(b)(3)(C) covers funds intended for someone else's retirement. Where used, that phrase works to limit the value of the asset that the debtor may exempt from her estate, not to distinguish between a debtor's assets and the assets of another. Also unpersuasive is petitioners' argument that §522(b)(3)(C)'s sentence structure--i.e., a broad category, here, "retirement funds," followed by limiting language, here, "to the extent that"--prevents the broad category from performing any independent limiting work. This is not the only way in which the phrase "to the extent that" may be read, and this argument reintroduces the problem that makes the term "retirement funds" superfluous. Finally, the possibility that an account holder can leave an inherited IRA intact until retirement and take only the required minimum distributions does not mean that an inherited IRA bears the legal characteristics of retirement funds. Pp. 8-11.
714 F. 3d 559, affirmed.
BRANDON C. CLARK et ux., PETITIONERS v.
When an individual files for bankruptcy, she may exempt particular categories of assets from the bankruptcy estate. One such category includes certain "retirement funds." 11 U. S. C. §522(b)(3)(C). The question presented is whether funds contained in an inherited individual retirement account (IRA) qualify as "retirement funds" within the meaning of this bankruptcy exemption. We hold that they do not.
When an individual debtor files a bankruptcy petition, her "legal or equitable interests . . . in property" become part of the bankruptcy estate. §541(a)(1). "To help the debtor obtain a fresh start," however, the Bankruptcy Code allows debtors to exempt from the estate limited interests in certain kinds of property. Rousey v. Jacoway, 544 U. S. 320, 325 (2005). The exemption at issue in this case allows debtors to protect "retirement funds to the extent those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code." §§522(b)(3)(C), (d)(12).1 The enumerated sections of the Internal Revenue Code cover many types of accounts, three of which are relevant here.
The first two are traditional and Roth IRAs, which are created by 26 U. S. C. §408 and §408A, respectively. Both types of accounts offer tax advantages to encourage individuals to save for retirement. Qualified contributions to traditional IRAs, for example, are tax-deductible. §219(a). Roth IRAs offer the opposite benefit: Although contributions are not tax-deductible, qualified distributions are tax-free. §§408A(c)(1), (d)(1). To ensure that both types of IRAs are used for retirement purposes and not as general tax-advantaged savings vehicles, Congress made certain withdrawals from both types of accounts subject to a 10 percent penalty if taken before an accountholder reaches the age of 59½. See §§72(t)(1)-(2); see also n. 4, infra.
The third type of account relevant here is an inherited IRA. An inherited IRA is a traditional or Roth IRA that has been inherited after its owner's death. See §§408(d)(3)(C)(ii), 408A(a). If the heir is the owner's spouse, as is often the case, the spouse has a choice: He or she may "roll over" the IRA funds into his or her own IRA, or he or she may keep the IRA as an inherited IRA (subject to the rules discussed below). See Internal Revenue Service, Publication 590: Individual Retirement Arrangements (IRAs), p. 18 (Jan. 5, 2014). When anyone other than the owner's spouse inherits the IRA, he or she may not roll over the funds; the only option is to hold the IRA as an inherited account.
Inherited IRAs do not operate like ordinary IRAs. Unlike with a traditional or Roth IRA, an individual may withdraw funds from an inherited IRA at any time, without paying a tax penalty. §72(t)(2)(A)(ii). Indeed, the owner of an inherited IRA not only may but must withdraw its funds: The owner must either withdraw the entire balance in the account within five years of the original owner's death or take minimum distributions on an annual basis. See §§408(a)(6), 401(a)(9)(B); 26 CFR §1.408-8 (2013) (Q-1 and A-1(a) incorporating §1.401(a)(9)-3 (Q-1 and A-1(a))); see generally D. Cartano, Taxation of Individual Retirement Accounts §32.02[A] (2013). And unlike with a traditional or Roth IRA, the owner of an inherited IRA may never make contributions to the account. 26 U. S. C. §219(d)(4).
In 2000, Ruth Heffron established a traditional IRA and named her daughter, Heidi Heffron-Clark, as the sole beneficiary of the account. When Ms. Heffron died in 2001, her IRA--which was then worth just over $450,000--passed to her daughter and became an inherited IRA. Ms. Heffron-Clark elected to take monthly distributions from the account.
In October 2010, Ms. Heffron-Clark and her husband, petitioners in this Court, filed a Chapter 7 bankruptcy petition. They identified the inherited IRA, by then worth roughly $300,000, as exempt from the bankruptcy estate under 11 U. S. C. §522(b)(3)(C). Respondents, the bankruptcy trustee and unsecured creditors of the estate, objected to the claimed exemption on the ground that the funds in the inherited IRA were not "retirement funds" within the meaning of the statute.
The Bankruptcy Court agreed, disallowing the exemption. In re Clark, 450 B. R. 858, 866 (WD Wisc. 2011). Relying on the "plain language of §522(b)(3)(C)," the court concluded that an inherited IRA "does not contain anyone's 'retirement funds,' " because unlike with a traditional IRA, the funds are not "segregated to meet the needs of, nor distributed on the occasion of, any person's retirement." Id., at 863.2 The District Court reversed, explaining that the exemption covers any account containing funds "originally" "accumulated for retirement purposes." In re Clark, 466 B. R. 135, 139 (WD Wisc. 2012). The Seventh Circuit reversed the District Court's judgment. In re Clark, 714 F. 3d 559 (2013). Pointing to the "[d]ifferent rules govern[ing] inherited" and noninherited IRAs, the court concluded that "inherited IRAs represent an opportunity for current consumption, not a fund of retirement savings." Id., at 560, 562.
We granted certiorari to resolve a conflict between the Seventh Circuit's ruling and the Fifth Circuit's decision in In re Chilton, 674 F. 3d 486 (2012). 571 U. S. ___ (2013). We now affirm.
The text and purpose of the Bankruptcy Code make clear that funds held in inherited IRAs are not "retirement funds" within the meaning of §522(b)(3)(C)'s bankruptcy exemption.
The Bankruptcy Code does not define "retirement funds," so we give the term its ordinary meaning. See Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U. S. ___, ___ (2014) (slip op., at 7). The ordinary meaning of "fund[s]" is "sum[s] of money . . . set aside for a specific purpose." American Heritage Dictionary 712 (4th ed. 2000). And "retirement" means "[w]ithdrawal from one's occupation, business, or office." Id., at 1489. Section 522(b)(3)(C)'s reference to "retirement funds" is therefore properly understood to mean sums of money set aside for the day an individual stops working.
The parties agree that, in deciding whether a given set of funds falls within this definition, the inquiry must be an objective one, not one that "turns on the debtor's subjective purpose." Brief for Petitioners 43-44; see also Brief for Respondents 26. In other words, to determine whether funds in an account qualify as "retirement funds," courts should not engage in a case-by-case, fact-intensive examination into whether the debtor actually planned to use the funds for retirement purposes as opposed to current consumption. Instead, we look to the legal characteristics of the account in which the funds are held, asking whether, as an objective matter, the account is one set aside for the day when an individual stops working. Cf. Rousey, 544 U. S., at 332 (holding that traditional IRAs are included within §522(d)(10)(E)'s exemption for "a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of . . . age" based on the legal characteristics of traditional IRAs).
Three legal characteristics of inherited IRAs lead us to conclude that funds held in such accounts are not objectively set aside for the purpose of retirement. First, the holder of an inherited IRA may never invest additional money in the account. 26 U. S. C. §219(d)(4). Inherited IRAs are thus unlike traditional and Roth IRAs, both of which are quintessential "retirement funds." For where inherited IRAs categorically prohibit contributions, the entire purpose of traditional and Roth IRAs is to provide tax incentives for accountholders to contribute regularly and over time to their retirement savings.
Second, holders of inherited IRAs are required to withdraw money from such accounts, no matter how many years they may be from retirement. Under the Tax Code, the beneficiary of an inherited IRA must either withdraw all of the funds in the IRA within five years after the year of the owner's death or take minimum annual distributions every year. See §408(a)(6); §401(a)(9)(B); 26 CFR §1.408-8 (Q-1 and A-1(a) incorporating §1.401(a)(9)-3 (Q-1 and A-1(a))). Here, for example, petitioners elected to take yearly distributions from the inherited IRA; as a result, the account decreased in value from roughly $450,000 to less than $300,000 within 10 years. That the tax rules governing inherited IRAs routinely lead to their diminution over time, regardless of their holders' proximity to retirement, is hardly a feature one would expect of an account set aside for retirement.
Finally, the holder of an inherited IRA may withdraw the entire balance of the account at any time--and for any purpose--without penalty. Whereas a withdrawal from a traditional or Roth IRA prior to the age of 59½ triggers a 10 percent tax penalty subject to narrow exceptions, see n. 4, infra--a rule that encourages individuals to leave such funds untouched until retirement age--there is no similar limit on the holder of an inherited IRA. Funds held in inherited IRAs accordingly constitute "a pot of money that can be freely used for current consumption," 714 F. 3d., at 561, not funds objectively set aside for one's retirement.
Allowing debtors to protect funds held in traditional and Roth IRAs comports with this purpose by helping to ensure that debtors will be able to meet their basic needs during their retirement years. At the same time, the legal limitations on traditional and Roth IRAs ensure that debtors who hold such accounts (but who have not yet reached retirement age) do not enjoy a cash windfall by virtue of the exemption--such debtors are instead required to wait until age 59½ before they may withdraw the funds penalty-free.
The same cannot be said of an inherited IRA. For if an individual is allowed to exempt an inherited IRA from her bankruptcy estate, nothing about the inherited IRA's legal characteristics would prevent (or even discourage) the individual from using the entire balance of the account on a vacation home or sports car immediately after her bankruptcy proceedings are complete. Allowing that kind of exemption would convert the Bankruptcy Code's purposes of preserving debtors' ability to meet their basic needs and ensuring that they have a "fresh start," Rousey, 544 U. S., at 325, into a "free pass," Schwab, 560 U. S., at 791. We decline to read the retirement funds provision in that manner.
Although petitioners' counterarguments are not without force, they do not overcome the statute's text and purpose.
Petitioners' primary argument is that funds in an inherited IRA are retirement funds because--regardless of whether they currently sit in an account bearing the legal characteristics of a fund set aside for retirement--they did so at an earlier moment in time. After all, petitioners point out, "the initial owner" of the account "set aside the funds in question for retirement by depositing them in a" traditional or Roth IRA. Brief for Petitioners 21. And "[t]he [initial] owner's death does not in any way affect the funds in the account." Ibid.
We disagree. In ordinary usage, to speak of a person's "retirement funds" implies that the funds are currently in an account set aside for retirement, not that they were set aside for that purpose at some prior date by an entirely different person. Under petitioners' contrary logic, if an individual withdraws money from a traditional IRA and gives it to a friend who then deposits it into a checking account, that money should be forever deemed "retirement funds" because it was originally set aside for retirement. That is plainly incorrect.
More fundamentally, the backward-looking inquiry urged by petitioners would render a substantial portion of 11 U. S. C. §522(b)(3)(C)'s text superfluous. The funds contained in every individual-held account exempt from taxation under the Tax Code provisions enumerated in §522(b)(3)(C) have been, at some point in time, "retirement funds." So on petitioners' view, rather than defining the exemption to cover "retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under [the enumerated sections] of the Internal Revenue Code," Congress could have achieved the exact same result through a provision covering any "fund or account that is exempt from taxation under [the enumerated sections]." In other words, §522(b)(3)(C) requires that funds satisfy not one but two conditions in order to be exempt: the funds must be "retirement funds," and they must be held in a covered account. Petitioners' reading would write out of the statute the first element. It therefore flouts the rule that " 'a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.' " Corley v. United States, 556 U. S. 303, 314 (2009).
Petitioners respond that many of §522's other exemptions refer to the "debtor's interest" in various kinds of property. See, e.g., §522(d)(2) (exempting "[t]he debtor's interest, not to exceed [$3,675] in value, in one motor vehicle"). Section 522(b)(3)(C)'s retirement funds exemption, by contrast, includes no such reference. As a result, petitioners surmise, Congress must have meant the provision to cover funds that were at one time retirement accounts, even if they were for someone else's retirement. Brief for Petitioners 33-34. But Congress used the phrase "debtor's interest" in the other exemptions in a different manner--not to distinguish between a debtor's assets and the assets of another person but to set a limit on the value of the particular asset that a debtor may exempt. For example, the statute allows a debtor to protect "[t]he debtor's aggregate interest, not to exceed [$1,550] in value, in jewelry." §522(d)(4). The phrase "[t]he debtor's aggregate interest" in this provision is just a means of introducing the $1,550 limit; it is not a means of preventing debtors from exempting other persons' jewelry from their own bankruptcy proceedings (an interpretation that would serve little apparent purpose). And Congress had no need to use the same "debtor's interest" formulation in §522(b)(3)(C) for the simple reason that it imposed a value limitation on the amount of exemptible retirement funds in a separate provision, §522(n).
Petitioners next contend that even if their interpretation of " 'retirement funds' does not independently exclude anything from the scope of the statute," that poses no problem because Congress actually intended that result. Reply Brief 5-6. In particular, petitioners suggest that when a sentence is structured as §522(b)(3)(C) is--starting with a broad category ("retirement funds"), then winnowing it down through limiting language ("to the extent that" the funds are held in a particular type of account)--it is often the case that the broad category does no independent limiting work. As counsel for petitioners noted at oral argument, if a tax were to apply to "sports teams to the extent that they are members of the major professional sports leagues," the phrase "sports teams" would not provide any additional limitation on the covered entities. Tr. of Oral Arg. 15.
There are two problems with this argument. First, while it is possible to conceive of sentences that use §522(b)(3)(C)'s "to the extent that" construction in a manner where the initial broad category serves no exclusionary purpose, that is not the only way in which the phrase may be used. For example, a tax break that applies to "nonprofit organizations to the extent that they are medical or scientific" would not apply to a for-profit pharmaceutical company because the initial broad category ("nonprofit organizations") provides its own limitation. Just so here; in order to qualify for bankruptcy protection under §522(b)(3)(C), funds must be both "retirement funds" and in an account exempt from taxation under one of the enumerated Tax Code sections.
Second, to accept petitioners' argument would reintroduce the surplusage problem already discussed. Supra, at 8-9. And although petitioners are correct that "the only effect of respondents' interpretation of 'retirement funds' would seemingly be to deny bankruptcy exemption to inherited IRAs," Reply Brief 2, as between one interpretation that would render statutory text superfluous and another that would render it meaningful yet limited, we think the latter more faithful to the statute Congress wrote.
For the foregoing reasons, the judgment of the United States Court of Appeals for the Seventh Circuit is affirmed.
Under §522, debtors may elect to claim exemptions either under federal law, see §522(b)(2), or state law, see §522(b)(3). Both tracks permit debtors to exempt "retirement funds." See §522(b)(3)(C) (retirement funds exemption for debtors proceeding under state law); §522(d)(12) (identical exemption for debtors proceeding under federal law). Petitioners elected to proceed under state law, so we refer to §522(b)(3)(C) throughout.
The Bankruptcy Court also concluded in the alternative that, even if funds in an inherited IRA qualify as retirement funds within the meaning of §522(b)(3)(C), an inherited IRA is not exempt from taxation under any of the Internal Revenue Code sections listed in the provision. See 450 B. R., at 865. Because we hold that inherited IRAs are not retirement funds to begin with, we have no occasion to pass on the Bankruptcy Court's alternative ground for disallowing petitioners' exemption.
As the House Judiciary Committee explained in the process of enacting §522, "[t]he historical purpose" of bankruptcy exemptions has been to provide a debtor "with the basic necessities of life" so that she "will not be left destitute and a public charge." H. R. Rep. No. 95-595, p. 126 (1977).
Petitioners also argue that inherited IRAs are similar enough to Roth IRAs to qualify as retirement funds because "the owner of a Roth IRA may withdraw his contributions . . . without penalty." Brief for Petitioners 44. But that argument fails to recognize that withdrawals of contributions to a Roth IRA are not subject to the 10 percent tax penalty for the unique reason that the contributions have already been taxed. By contrast, all capital gains and investment income in a Roth IRA are subject to the pre-59½ withdrawal penalty (with narrow exceptions for, for example, medical expenses), which incentivizes use of those funds only in one's retirement years.


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A federal district court in Massachusetts upholds indemnification clause in a release.
All prior decisions have found that indemnification clauses in releases are not effective because it creates a conflict of interest within a family.
I cannot determine if this case is over, however, the ruling is quite interesting and worth the risk in having to reverse this post.
The deceased joined the USA Triathlon (USAT) and in doing so signed a Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement. The deceased signed the document electronically. The deceased registered online for the National Age Group Championship in Vermont and again signed an “indemnity agreement” electronically. The two releases were identical.
The deceased died during the triathlon during the swim portion of the event. The deceased wife and personal representative of his estate brought this lawsuit in Federal District Court of Massachusetts.
The defendant USAT filed a motion for summary judgment, and this review is of the court’s ruling on that motion.
The motion for Summary Judgment was a partial motion on the counterclaim of the defendant based on the indemnity provisions in the two releases.
The court refers to the releases as “the indemnity agreements” which create a lot of confusion when reading the decision. The court first examined Massachusetts law relating to releases.
And then Massachusetts law on indemnity agreements.
Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate.
…clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation in the Event.” Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous.
The court then looked at how the release affected the specific claims of the plaintiff. The first count in the complaint was based on wrongful death, and the third was for wrongful death because of gross negligence of the defendant and included a claim for punitive damages.
The court looked at the damages that might be recoverable under these two theories because how the money was identified would determine if the money could be recovered on the indemnification claim.
That means the indemnification claim is against the person who signed the release or in this case their estate. The deceased could not pledge his wife’s assets to the indemnification because he could not sign for her, only his assets. “The decedent, while having authority to bind his estate, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby.” The wrongful-death claim money is not an asset of the state; it is held by the personal representative on behalf of the heirs to the estate. So any money recovered under the wrongful-death statute or claim would not be subject to indemnification.
Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate.
Then the court looked to see if the release would stop gross negligence claims. The court found no “controlling authority” on this issue, but held that it would not stop a claim for gross negligence based on the law of appellate decisions in the state.
In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence.
So the court found the release would stop the negligence claims and dismissed count one of the complaints and found that the release would not stop a claim for gross negligence and allowed count three to proceed.
However, the court also stated the motion was denied if the indemnification provision in the release attempted to be satisfied from the wrongful-death proceeds. Alternatively, the indemnification clause would apply to any money’s received for any successful claim other than wrongful death.
Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.
The fourth count was for Negligent Infliction of Emotional Distress, which was inflicted on the wife of the decedent who was present at the race. The original complaint was only brought in the name of the personal representative, not her name individually. Consequently, the court agreed to allow the plaintiff to amend her complaint to bring this claim.
However, the court also found that any money received by the plaintiff on her claim for negligent infliction of emotional distress would also be subject to the indemnification claims of the defendant.
The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim.
However, the indemnification claim was only applicable to any money paid on this claim to the decedent, not the decedent’s wife. Again, the decedent could not pledge his wife’s assets by his signature.
The court looked at the defendants claim that the defense costs of the action should be paid based on the indemnification clause. The court agreed with the defendant’s argument for the costs to.
The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs, which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim, which is subject to indemnification.
So any money the lawsuit received that was payable to the estate was subject to the indemnification clause in the release, and that money could be received based on money paid or the cost of defending the lawsuit and recovering the money. Money held in trust, based on a wrongful-death claim was not subject to indemnification.
The release blocked all claims of the decedent and any claims of the wife that were derivative of the decedent’s claims.
Effectively, the case is over because there is no way to get any money, that would not be subject to indemnification. Then any other asset of the estate would be subject to the indemnification due to the cost of defending the lawsuit.
The reasoning for the motion for summary judgment is simple. If the defendant is able to act on the indemnification, any money received by the plaintiff will just turn around and go back to the defendant. Consequently, the damages are reduced to about zero and the chances of settling sky rocket.
However, the importance of the motion is the court upheld the indemnification clause! Normally courts through these out as being a violation of the doctrine or parental immunity, or because they create a conflict of interest between members of a family.
I have never seen an indemnification clause upheld in a recreational release.
See Indemnification agreements? What are you signing?
Cheryl Angelo, Personal Representative of the Estate of Richard Angelo, Plaintiff, v. USA Triathlon, Defendant.
COUNSEL: [*1] For Cheryl Angelo, Plaintiff: Alan L. Cantor, LEAD ATTORNEY, Joseph A. Swartz, Peter J. Towne, Swartz & Swartz, Boston, MA.
For USA TRIATHLON, Defendant: Douglas L. Fox, Shumway, Giguere, Fox PC, Worcester, MA.
JUDGES: Leo T. Sorokin, United States District Judge.
This action arises from a tragic set of facts in which Richard Angelo died while participating in the swim portion of a triathlon organized by the defendant, USA Triathlon (“USAT”). Plaintiff Cheryl Angelo (“the plaintiff”), as personal representative of Richard Angelo (“Angelo” or “the decedent”), has brought claims of wrongful death, conscious pain and suffering, and negligent infliction of emotional distress. USAT has counterclaimed for indemnity against any liability and legal costs associated with this action pursuant to indemnity agreements executed by the decedent prior to his participation in the triathlon. USAT has now moved for partial summary judgment on its claim for indemnity. Doc. No. 18. The plaintiff has opposed the Motion. Doc. No. 19. For the reasons stated below, USAT’s Motion is ALLOWED IN PART and DENIED IN PART.
4. I hereby Release, Waive and Covenant Not to Sue, and further agree to Indemnify, Defend and Hold Harmless the following parties: USAT, the Event Organizers and Promoters, Race Directors, Sponsors, Advertisers, Host Cities, Local Organizing Committees, Venues and Property Owners upon which the Event takes place, Law Enforcement Agencies and other Public Entities providing support for the Event, and each of their respective parent, subsidiary and affiliated companies, officers, directors, partners, shareholders, members, agents, employees [*3] and volunteers (Individually and Collectively, the “Released Parties” or “Event Organizers”), with respect to any liability, claim(s), demand(s), cause(s) of action, damage(s), loss or expense (including court costs and reasonable attorneys [sic] fees) of any kind or nature (“Liability”) which may arise out of, result from, or relate to my participation in the Event, including claims for Liability caused in whole or in part by the negligence of the Released Parties. I further agree that if, despite this Agreement, I, or anyone on my behalf, makes a claim for Liability against any of the Released Parties, I will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.
USAT arranged to hold its National Age Group Championship on August 18, 2012, in Burlington, Vermont. Id. at 2 ¶ 5. On February 17, 2012, Angelo registered for the championship and, as part of his registration, electronically signed an indemnity agreement identical to the one excerpted above. Id. at 2 ¶ 6. As with the prior agreement, only Angelo as the participant was required to, and in fact did, sign the form. Doc. Nos. 18-1 at 33-34, 19-2 [*4] at 3. Angelo competed in that triathlon and died during his participation in the swim portion of that event or shortly thereafter. Doc. No. 18-2 at 11-12.
The plaintiff, the decedent’s wife and the personal representative of his estate, then brought this action in Essex Superior Court, alleging wrongful death, conscious pain and suffering by the decedent, gross negligence resulting in the decedent’s death, and negligent infliction of emotional distress suffered by the plaintiff, who was present at the site of the race. Doc. No. 6 at 12-16. USAT subsequently removed the action to this Court. Doc. No. 1.
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once a party “has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The Court is “obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences [*5] in the nonmoving party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
USAT has moved for partial summary judgment on their counterclaim for indemnity.1 USAT asserts that the decedent’s execution of the two release and indemnity agreements (“the indemnity agreements”) released or indemnified, or both, all claims that arise from his participation in the National Age Group Championship, including all claims brought by the plaintiff in this action. The plaintiff counters that the indemnity agreements could not function to release her claims for wrongful death or negligent infliction of emotional distress, and that an indemnity agreement is not enforceable insofar as it exempts the indemnitee from liability for its own grossly negligent conduct.
1 The Court understands this motion for summary judgment to be limited to the scope of the release and indemnity agreement [*6] and its application to the plaintiff’s claims as raised in the Complaint and as amplified in the motion papers. Despite USAT’s argument to the contrary, the Court does not believe this motion to be an appropriate vehicle to address the substantive merits of the plaintiff’s pleadings or claims.
Under Massachusetts law,2 “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.” Post v. Belmont Country Club, Inc., 60 Mass. App. Ct. 645, 805 N.E.2d 63, 69 (Mass. App. Ct. 2004) (quoting Shea v. Bay State Gas Co., 383 Mass. 218, 418 N.E.2d 597, 600 (Mass. 1981)). Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Id. at 70. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate. Id. at 71.
2 The parties do not contend that the law of any other state applies.
Here, the language in the indemnity provision is broad. The plaintiff argues, briefly, that the indemnity agreements are ambiguous as to who is bound by the agreements. The Court disagrees. The agreement clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation [*7] in the Event.” Doc. No. 18-1 at 4. By the plain language of the provision, the signatory of the agreement agreed to indemnify USAT for any losses arising from his participation in the triathlon, including losses and damages associated with lawsuits arising from his participation. See Post, 805 N.E.2d at 70. Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous. A close examination is required, however, to ascertain the applicability of the provision to the specific claims raised and the sources available to satisfy the indemnity.
The first count in the plaintiff’s Complaint alleges wrongful death due to USAT’s negligence. The third count alleges wrongful death due to USAT’s gross negligence and seeks punitive damages. Under Massachusetts law, an action for wrongful death is “brought by a personal representative on behalf of the designated categories of beneficiaries” set forth by statute. Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (Mass. 1972); see Mass. Gen. Laws ch. 229, §§ 1, 2. “The money recovered upon a wrongful death claim is not a general asset of the probate estate, but constitutes a statutory trust fund, held by the administratrix as trustee for distribution to the statutory beneficiaries.”3 Marco v. Green, 415 Mass. 732, 615 N.E.2d 928, 932 (Mass. 1993) (quoting Sullivan v. Goulette, 344 Mass. 307, 182 N.E.2d 519, 523 (Mass. 1962)). These [*8] aspects of Massachusetts law have led another judge of this Court to the conclusion that “[w]rongful death is not, in any traditional sense, a claim of the decedent.” Chung v. StudentCity.com, Inc., Civ. A. 10-10943-RWZ, 2011 U.S. Dist. LEXIS 102370, 2011 WL 4074297, at *2 (D. Mass. Sept. 9, 2011).
3 The Massachusetts Legislature has created limited statutory exceptions whereby the recovery on a wrongful death claim may be reached to pay certain specified expenses. Mass. Gen. Laws ch. 229, § 6A. None of those exceptions are implicated by the present Motion. See id.
4 In Estate of Bogomolsky, a recent decision of another session of this Court, Judge Saylor came to the same conclusion, finding that a judgment creditor of a decedent’s estate would not be able to restrain the proceeds of an insurance policy distributed pursuant to the wrongful death statute, as the proceeds of the policy were held in trust for the decedent’s next of kin and did not belong to the decedent’s estate. Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2.
5 While the plaintiff notes that the Massachusetts Appeals Court has reserved the question of whether an indemnification provision would be [*10] enforced to effectively release the claims of people who were not signatories of such an agreement, see Post, 805 N.E.2d at 70-71, this case, as in Post, does not present that circumstance, as the indemnity agreements in this case do not purport to extinguish the plaintiff’s right to bring her claims nor her right to recover on those claims.
Count three of the plaintiff’s Complaint, alleging that the decedent’s death was a result of USAT’s gross negligence, raises the issue of whether Massachusetts courts would enforce an indemnity contract to the extent it functioned to indemnify a party’s own gross negligence. The Court has uncovered no controlling authority from the Supreme Judicial Court of Massachusetts on this issue, nor any case of the Massachusetts Appeals Court on point. In such a case, “[w]here the state’s highest court has not definitively weighed in, a federal court applying state law ‘may consider analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.'” Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 164 (1st Cir. 2009) (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38 (1st Cir. 2001)).
In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, [*11] a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997). The Supreme Judicial Court, although not adopting that holding, has noted that public policy reasons exist for treating ordinary negligence differently from gross negligence when enforcing releases. Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 748 n.12 (Mass. 2002). Finally, Judge Saylor of this Court, examining this caselaw, has concluded that the Supreme Judicial Court would not enforce an indemnity agreement to the extent it provided for indemnification of a party’s own gross negligence. CSX Transp., Inc. v. Mass. Bay Transp. Auth., 697 F. Supp. 2d 213, 227 (D. Mass. 2010).
6 This conclusion would gain significance if the plaintiff were to be awarded punitive damages owing to USAT’s alleged gross negligence. Punitive damages [*12] awarded under the wrongful death statute, unlike compensatory damages under that statute, are considered general assets of the decedent’s estate. Burt v. Meyer, 400 Mass. 185, 508 N.E.2d 598, 601-02 (Mass. 1987). Any punitive damages, however, could not be reached in satisfaction of the indemnity obligation because gross negligence or more culpable conduct is the predicate upon which an award of punitive damages is based under the statute. See Mass. Gen. Laws ch. 229, § 2.
Accordingly, USAT’s Motion for Summary Judgment as to the plaintiff’s claims of wrongful death is ALLOWED insofar as it seeks indemnity from the decedent’s estate for USAT’s allegedly negligent conduct. The Motion is DENIED insofar as it seeks to satisfy the indemnity obligation from any amounts recovered on the wrongful death claim and insofar as the agreement would require the decedent’s estate to indemnify liability arising from USAT’s grossly negligent conduct.
The second count of the plaintiff’s Complaint alleges that USAT’s negligence caused the decedent’s conscious pain and suffering. Under Massachusetts law, a claim for conscious pain and suffering is a claim of the decedent, which may be brought on the decedent’s behalf by his or her personal representative. [*13] Gaudette, 284 N.E.2d at 224-25; see Mass. Gen. Laws ch. 229, § 6. Any recovery on such a claim is held as an asset of the decedent’s estate. Mass. Gen. Laws ch. 229, § 6. By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim. Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. See Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.
In response to this argument, however, the plaintiff has stated her intent to proceed on the conscious suffering count only on a theory of gross negligence, and not to proceed upon ordinary negligence. As noted above, both the release and the indemnity provisions of the agreements are unenforceable to exempt USAT from liability for their own grossly negligent conduct. See CSX, 697 F. Supp. 2d at 227; Zavras, 687 N.E.2d at 1265. Thus, insofar as the plaintiff chooses to proceed on the conscious pain and suffering count only on a theory of gross negligence, USAT’s Motion for Summary [*14] Judgment is DENIED. If she chooses to so proceed, the plaintiff shall amend her Complaint accordingly.
The fourth and final count of the plaintiff’s Complaint alleges USAT’s negligent infliction of emotional distress on the plaintiff, who was present at the race venue. As an initial matter, the plaintiff, as currently denominated in the Complaint, only brings claims as personal representative of the estate of the decedent. Negligent infliction of emotional distress, however, alleges a harm directly against the plaintiff in her individual capacity, see Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920, 927 (Mass. 1982), and thus cannot be brought in a representative capacity.
In response, the plaintiff has indicated her intent to amend her Complaint to bring this claim in her individual capacity. The Court will allow the amendment, as it is not futile in light of the Court’s rulings on the indemnity agreements. The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim. As conceded by [*15] USAT, however, any recovery on the emotional distress claim would belong to the plaintiff individually, and thus USAT would not be able to use that recovery to satisfy the indemnity and may look only to the estate of the decedent. Doc. No. 20 at 11-12. Accordingly, the plaintiff may so amend her Complaint to perfect her claim of negligent infliction of emotional distress.
USAT also claims an entitlement to defense costs arising from the provisions in the indemnity agreements obligating the signatory to defend and hold harmless USAT. The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim which is subject to indemnification.7 See Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir. 1997) (“[U]nder Massachusetts law, if an insurer has a duty to defend one count of a complaint, it must defend them all.” (citing Aetna Cas. & Surety Co. v. Continental Cas. Co., 413 Mass. 730, 604 N.E.2d 30, 32 n.1 (Mass. 1992)).
7 Should the plaintiff decide to proceed only on those claims that, following the reasoning of this Order, are not subject to the [*16] indemnity obligation, the parties may request leave to brief the issue of USAT’s entitlement to prospective defense costs at that time.
In conclusion, USAT’s Motion for Summary Judgment, Doc. No. 18, is ALLOWED as set forth above insofar as USAT seeks to establish the release of the conscious pain and suffering claim and indemnity from the decedent’s estate for the claims wrongful death, conscious pain and suffering, and negligent infliction of emotional distress caused by USAT’s ordinary negligence. USAT’s Motion is DENIED, however, insofar as it argues for release of or indemnity on any claims caused by their own gross negligence and insofar as it seeks satisfaction of the indemnity obligation from any recovery on the wrongful death or emotional distress claims. The plaintiff shall amend the Complaint within seven days to more clearly specify the capacity in which each claim is brought and add the allegations of gross negligence, both as described in the plaintiff’s papers. The defendant shall respond to the Amended Complaint within seven days of its filing. The Court will hold a Rule 16 conference on October 21, 2014 at 1 p.m.

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