In association with the International Commission of Jurists

Symposia

08 Mar

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

  Dr. Hugo Storey[1] is a Senior Judge of the U.K. Upper Tribunal Immigration and Asylum Chamber   In the limited time and space, may I offer to following observations for Panel 2: (1) The S395 and HJ (Iran) cases are truly landmark cases. Hathaway and Pobjoy’s (H and P) article is equally a truly landmark article.  And the high-quality response pieces sparked by their article are extremely important, not just for the issue of the proper approach to LGBTI claims, but for refugee jurisprudence as a whole, in particular its approach to the issue of behaviour modification. (2) Framing matters this way helps perhaps remind ourselves that in general terms it would seem desirable if claims involving the different kinds of protected characteristics could be dealt with in pari materiae – so that what is said about sexual orientation cases also holds true for religious orientation and political orientation etc. cases.  It may be that in some limited respects each type of case is sui generis, indeed, both H and P (p.110)  and Jenni Millbank (p.119) emphasise this and I briefly allude to it below. But in general terms the meaning of “being persecuted” etc. cannot vary from subject-matter to subject-matter. (3) This point should alert us to the fact that we had best not assume that S395 and HJ (Iran) are the last word. Quite soon the Court of Justice of the European Union (CJEU) will give its judgment on a preliminary reference from the Bundesverwaltungsgericht (Germany) in Federal Republic of Germany v. Y (Case C-71/11). The CJEU was originally seized of another German case which directly concerned the gay concealment issues, but this fell way (as noted by H and P, n.33). But Case C-71/11 has just now had an oral hearing and it raises the concealment/discretion/abstinence issue in the (arguably analogous) context of a religious persecution case involving two Ahmadis from Pakistan. The first question the CJEU is asked is whether a violation of religious freedom sufficiently severe to give rise to persecution “arises only if the core area of that religious freedom is adversely affected”?  One further question asked is whether there can be acts of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC (which defines persecution) “ in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice?” A final question asks whether persecution arises if it is established that the applicant will carry out certain religious practices –other than those falling within the core area – after returning to the country of origin, even though these will give rise to a risk to body, life or physical freedom, “or is the applicant to be expected to abstain from engaging in such religious practices in the future?” The answers of the CJEU will, of course, be legally binding throughout the 29 Member States of the EU - including on the UK Supreme Court.  Immediately it can be seen that several of the issues that animate the current debate, that of the use of  “binaries” such as “core/periphery” and the employment of some kind of “reasonable expectation” test in particular - may very likely be tackled by the CJEU.[2]
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08 Mar

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

  John Tobin is an Associate Professor at Melbourne Law School where he teaches and researches in the area of human rights. In 2011 he was a Senior Scholar in Residence at the NYU Center for Human Rights and Global Justice. His book, The Right to Health in International Law, has just been released by Oxford University Press.   Using human rights in refugee law - The need to proceed with caution A well-founded fear of being persecuted is a core requirement for a finding of refugee status under the Refugee Convention.[1] Although the Refugee Convention does not define persecution and there is no universally accepted definition,[2] most definitions tend to stress the need for serious harm and link persecution in some way to a violation of human rights.  For example, according to the UNHCR Guidebook a threat to life or freedom or ‘other serious violations of human rights’ would constitute persecution.[3] The EC Council Directive 2004/83/EC provides that acts of persecution must be ‘sufficiently serious by their nature or repetition so as to constitute a severe violation of basic human rights’.[4] And for Hathaway and Pobjoy, who affirm the test originally developed by Hathaway in 1991, and which has been widely cited with approval since, it is ‘necessary to show the “sustained or systemic violation of basic or core human rights entitlements demonstrative of a failure of state protection.”[5] The theme common to each of these approaches is the idea of a serious or severe violation of a basic or core human right.   Although this idea has become axiomatic within refugee law, it is problematic when viewed from the prism of a human rights jurist.  For example, in human rights law, a violation will occur where there has been a failure of state protection.[6] Thus, it makes no sense to speak of a human rights violation and a failure of state protection.[7] And even if a human rights violation is taken to be demonstrative of a failure of state protection (which is true in human rights discourse), the Refugee Convention speaks of a state’s inability or unwillingness to protect an applicant.  But the inability of a State to protect a human right is not necessarily a violation of a human right.[8] It will depend on the reasonableness of a state’s actions in responding to an interference with a right. So does this mean that the Refugee Convention demands surrogate protection for an applicant in circumstances where the state of origin has not actually violated a human right?   If so, this would mean that refugee status would be possible in the absence of a human rights violation by a state.[9] But if human rights remain central to an understanding of persecution, what constitutes a serious or severe violation of a human right?  Is not every violation of a human right serious?  And what is a basic, fundamental or core human right?  Are not all human rights recognized in international treaties said to be fundamental and are not all human rights interdependent and indivisible?[10] And to which human rights do the various tests for persecution refer – all those recognized under international treaties and customary international law or only certain kinds of rights? And how is the meaning of each right to be assessed?  Are developments in regional and domestic human rights systems relevant to the interpretation of international human rights and if so to what extent?
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08 Mar

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

  Bojana Asanovic is a barrister at Lamb Building, Chambers of Ami Feder in London. She specialises in immigration, asylum and human rights law.   This note examines the way in which asylum claims based on sexual identity are determined as a flagrant breach of Article 8 ECHR after HJ and HT, UKSC (2010).  I will take the case of DBN v the United Kingdom, (26550/10) ECHR 192 (2011) as its starting point, and follow with a brief look at potential consequences of an evidentiary approach that places importance on the need for asylum seekers to prove psychological harm in Article 8 cases. On January 27, 2011, the European Court of Human Rights (‘ECtHR’) communicated the case of DBN v. the United Kingdom, which concerned a lesbian from Zimbabwe who claimed violations of Articles 3 and 8 of the European Convention on Human Rights.[1] This case post-dated HJ and HT in the Supreme Court.  In D.B.N., the question to the parties in relation to Article 8 was phrased thus:
“Is there a real risk that the applicant’s removal to Zimbabwe would amount to a flagrant breach of the applicant’s rights to private life under Article 8 of the Convention (EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008))?”[2]
The applicant argued that in the context of systematic, virulent, state-sponsored homophobic propaganda with evidence of discrimination and harassment by the police, it was not possible to enjoy a protected right to privacy because she would be forced to live in fear and secrecy as a result of her sexual identity.
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08 Mar

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

Lucy Yeatman is a lecturer in law at the University of Greenwich, teaching Family Law and Human Rights Law. Her research focuses on same-sex parents and the law, and LGBTI asylum seekers and refugees. Hathaway and Pobjoy argue that the decisions in S395 and HJ and HT achieved the right result for the asylum seekers involved, but for the wrong reasons.  They go on to argue that there were two ways in which the reasoning in both cases was flawed: first, in the reliance on the threat of exogenous harm which could not be objectively established and in consequence not giving due consideration to the threat of endogenous harm caused by enforced concealment; and second, in the failure to place any kind of limitation on the type of behaviour associated with sexual orientation that might give rise to protection under the Refugee Convention.  As John Tobin quite rightly concludes, “credit is due to Hathaway and Pobjoy for seeking to develop a stronger jurisprudential foundation on which to base claims for refugee status of GLBTI applicants” and he welcomes the emphasis they place on psychological harm as an important contribution to a “shift in the narrative of persecution.”  This paper will however object to the approach taken by Hathaway and Pobjoy for five reasons. First, a distinction is drawn between requiring someone to return home and conceal their sexual orientation, and finding that if returned home, they will “for seclusion.”  They accept that there can be no basis in refugee law for requiring concealment, but argue that in both S395 and HJ and HT the appellants were not being required to conceal their sexual orientation but were opting to do so.  The UKSC quite rightly rejected this distinction,[1] as the asylum seeker is not choosing to conceal their identity.  In fact, by virtue of having sought asylum in a country that recognises the rights of lesbian and gay people to live free from discrimination, the claimant is quite clearly opting not to conceal their identity.  If their asylum claim fails and they are returned home then this is not a choice. Second, Hathaway and Pobjoy go on to argue, that where a person opts for concealment, it is not possible to identify a risk of persecutory harm.   The UKSC directly addressed this point by requiring examination of the reasons for concealment.  Lord Rodger was satisfied that if a claimant would conceal the fact he is gay in order to avoid persecution, then this is prima facie an indication that there is a threat of persecution.[2] Hathaway and Pobjoy describe this approach as “riding roughshod over their responsibility to identify the risk of persecutory harm” because refugee law requires an objective analysis of a risk of harm.   Yet at no point does the UKSC suggest that this is a purely subjective test, the judgments of their Lordships clearly require evidence that if the claimant were “out” they would risk persecution.  The objective test is there.  Yet Hathaway and Pobjoy’s approach suggests that concealing your sexual orientation is a simple process that involves easily made modification of behaviour; otherwise they would surely recognise that a life of concealment always carries with it the risk of discovery.   In fact the story of HT is a good example of this.  He managed to live discreetly for many years, before a lack of extreme caution exposed him to his neighbours and to a viscous attack that left him hospitalised and vulnerable to further violence.v If a person is hiding their true identity due to a fear of persecution, if that fear is well-founded, then they are always at risk of exposure and persecution.
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08 Mar

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

  Connie Oxford is Assistant Professor of Gender and Women's Studies at the State University of New York, Plattsburgh. Her publications include Queer Asylum: U.S. Policies and Responses to Sexual Orientation and Transgendered Persecution in Shifting Control: Gender and Migration Policy, 1917-2010. Marlou Schrover and Deidre Moloney (eds.) Amsterdam, Netherlands: Amsterdam University Press.   In Queer Cases Make Bad Law, James C. Hathaway and Jason Pobjoy criticize decisions of the High Court of Australia and the Supreme Court of the United Kingdom regarding two queer asylum cases, respectively, S395[1] and HJ and HT.[2] They argue that while in each case, the applicants were rightfully granted asylum, each Court erred in its legal logic, and therefore, strayed from “accepted refugee doctrine."  Their critique rests on a model of persecution that differentiates the physical realm of harm (exogenous) from psychological harm (endogenous).  They conclude that the two gay Bangladeshi men granted asylum in Australia and the gay Iranian and Cameroonian men granted asylum in the UK had “no well-founded fear of exogenous harms” even though this was the basis of the Courts’ favorable judgments.  Conversely, the Courts were silent on the claimants’ experiences of “severe psychological harm” that instead, according to Hathaway and Pobjoy, should have formed the logic of these decisions.  In this brief response, I address the idea that gay men who “opt for seclusion” face only a well-founded fear of endogenous harm and not one of exogenous harm. The lynchpin of Hathaway and Pobjoy’s argument is a dichotomous classification of persecution for gay men.[3] They designate outward bodily harm, such as “prosecution or beatings” as exogenous and inward psychological harm that “follow[s] from self-repression (anxiety, paranoia, disassociation, or worse)” as endogenous.  Although they do not state explicitly that all forms of persecution are necessarily one or the other, the examples offered imply that the harm itself is mutually exclusive to the body or mind in their taxonomy of persecution.  Nor do they suggest whether the exogenous/endogenous binary is specific to queer cases or applicable to claims of persecution based on other grounds such as religion or political opinion that they compare to social group.  I take issue with two implications of the exogenous/endogenous model. First, I find problematic the binary logic embedded in the exogenous/endogenous framework for ascertaining harm.  This is not to say that persecution cannot be solely physical or psychological at times, but rather it is not always exogenous or endogenous.  Whether Hathaway and Pobjoy are advancing the notion that harm must always be one or the other is not clear, and if this is their argument, then it certainly does not stand in the face of empirical examples of torture.  For example, studies of torture survivors show that psychological trauma, such as Post Traumatic Stress Disorder (PTSD), is routinely constitutive of (rather than merely a result of) physical harm.[4] The second implication of their argument that I want to address is the ways in which the exogenous/endogenous binary is applied to queer cases.
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08 Mar

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

Victoria Neilson is the Legal Director of Immigration Equality and an adjunct professor at New York University School of Law.   Reading Queer Cases Make Bad Law, by James C. Hathaway and Jason Pobjoy,  (hereinafter  “Hathaway/Pobjoy article”) my first reaction is to feel fortunate that I practice asylum law in the United States and not in Australia, the U.K., or other European countries that have imposed a duty of so-called “discretion” on asylum seekers to avoid harm.  U.S. courts have rejected the notion that a gay man should be saddled “with the Hobson’s choice of. . . either (1) facing persecution for engaging in future homosexual acts or (2) living a life of celibacy.  Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005).  And in the recently released United States Citizenship and Immigration Services Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims, USCIS instructs asylum and refugee officers that:
Being compelled to abandon or conceal one's sexual orientation or gender identity, where this is instigated or condoned by the state, may amount to persecution.  LGBTI persons who live in fear of being publicly identified often conceal their sexual orientation in order to avoid the severe consequences of such exposure -- including the risk of incurring harsh criminal penalties, arbitrary arrests, physical and sexual violence, dismissal from employment, and societal disapproval.   (LGBTI module at 20-21).
While asylum law in the United States is by no means perfect, I think that the subjects of the Hathaway/Pobjoy article, HJ and HT, could have won asylum here under the existing legal framework.  Thus, rather than re-envision asylum and refugee law as the article suggests, to focus on the “endogenous” harm that comes from leading a forced life of secrecy and suppression, I suggest that European countries look to the United States as a model for analyzing these types of cases. Under U.S. asylum law, applicants are most likely to be successful if they can prove past persecution.  Doing so creates a presumption of future persecution, shifting the burden to the government to prove that the applicant will not face further persecution.  As a practical matter, the government rarely argues against granting asylum where past persecution has been established. In situations where the applicant has not suffered persecution in the past, the inquiry is entirely forward-looking.  Does the applicant have a well-founded fear of future persecution?  It is then incumbent upon the applicant to demonstrate either that he or she will be singled out for future persecution or that there is a pattern and practice of persecution of those that share the applicant’s protected characteristic. 8 C.F.R. 208.13(b)(2). Cases based on a pattern and practice argument are decided almost entirely on country conditions documentation.  U.S. courts have been reluctant to grant “pattern and practice” cases, probably because of the obvious “floodgates” concern that if one applicant with a particular protected characteristic can win asylum based solely on pattern and practice, then presumably all applicants who share that characteristic could also win.  Thus, gay applicants have lost “pattern and practice” claims where evidence of treatment of LGBT people is mixed, such as claims from Peru (Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005)), Zimbabwe, (Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005)), and Mexico (Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011)).
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08 Mar

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium David John Frank is Professor of Sociology and, by courtesy, Education at the University of California, Irvine. He is interested in the cultural infrastructure of world society, especially as it changes over time and varies across national contexts. It makes some sense to justify LGBT asylum claims in terms of the traumatic...

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07 Mar

The NYU Journal of International Law and Politics is partnering once again with Opinio Juris for an online symposium.  The symposium will correspond with the simultaneous release this week of our Vol. 44, No. 2 issue, featuring a ground-breaking piece by Professor James Hathaway, a world-renowned leader in refugee studies and director of Michigan's refugee law program, and Jason Pobjoy, a Ph.D. candidate in Law at Gonville and Caius College, University of Cambridge and a visiting doctoral researcher at NYU.  The article, Queer Cases Make Bad Law, serves as a point of departure for contributions by other leading scholars, who examine and expand on issues raised by the piece.  Here is a short summary of the article and an introduction by Editor-in-Chief Jeff Stein. On Thursday and Friday, several of the print contributors as well as other international experts will engage on various topics intersecting with LGBT asylum and refugee law raised by Professor Hathaway's article here at Opinio Juris.  Rather than taking a traditional Q&A approach, we felt that it would be more productive to actually use direct quotes from the Hathaway/Pobjoy article and responses to ignite conversation. The first two panels focus on the definition of "being persecuted", while the second panel focuses on the issue of "nexus".  The following is the schedule and roster of participants:   Panel 1: Thursday, March 8th, 8am - 12pm James C. Hathaway and Jason Pobjoy, Queer Cases Make Bad Law, 44 N.Y.U. J. Int'l L. & Pol. 315, 388 (2012):
"No, there is no well-founded fear of exogenous harms, such as prosecution or beatings, where a gay man would in fact opt for seclusion to escape such threats. But, given the traumatic effects that normally follow from self-repression (anxiety, paranoia, disassociation, or worse) there is an alternative and solid basis, grounded in the traditional link between persecution and risk to core norms of human rights law, to affirm refugee status. Because the risk of severe psychological harm has been authoritatively interpreted to contravene the right to protection against cruel, inhuman or degrading treatment, this is the persecutory risk that is most likely to be well-founded in such cases."
Participants:  
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26 Jan

[Scott Kennedy, associate professor of Political Science and East Asian Languages & Cultures and director of the Research Center for Chinese Politics & Business at Indiana University, responds to Mark Wu, Antidumping in Asia’s Emerging Giants. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Antidumping: Less Change than Meets the Eye Mark Wu’s article, “Antidumping in Asia’s Emerging Giants,” is an impressive piece of scholarship and deserves widespread attention. He analyzes how an already controversial element of the trading system, the antidumping regime, has become more problematic because of the growing use this tool by India and China. And he does so by assembling a comprehensive data set of antidumping cases at the national, industry, and product level for both countries. Wu is clearly a strong critic of antidumping no matter who uses it. He shows how the standards for initiating and proving antidumping have declined over time, and that rather than ensuring fair trade, antidumping is essentially an illegitimate protectionist tool of those who want to avoid foreign competition. Wu argues that the antidumping regime is becoming a more widely abused tool because India and China have joined traditional users in wielding this weapon. If antidumping reforms are not enacted, the likely consequence will be an explosion of cases by India and China, further distorting international trade patterns and leading to welfare losses. Hence, he encourages the United States and European Union to alter their stance in the Doha Round and embrace reforms before the system they created turns decisively against them.
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26 Jan

[Mark Wu, Assistant Professor of Law at Harvard Law School, describes his recently published article, Antidumping in Asia’s Emerging Giants. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Over the past decade, China and India have rapidly increased their use of antidumping laws, the world’s most dominant form of trade protectionism, against their trading partners. Yet,...

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25 Jan

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] I appreciate Professor Vázquez’s thoughtful response to my article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. Professor Vázquez is a brilliant scholar whose many writings on self-executing treaties have made a valuable and enduring contribution to the literature. As he acknowledges, he and I agree on many issues related to the self-execution debate. In this brief reply, I will focus on one area of disagreement: the correct interpretation of Chief Justice Marshall’s opinion in Foster v. Neilson, decided in 1829. Marshall stated clearly in Foster that Article 8 of the 1819 treaty with Spain (the “Florida treaty”) required legislative implementation. What was the rationale supporting that conclusion? Professor Vázquez contends that Marshall applied the “intent-based approach” in Foster. Under that approach, the distinction between self-executing and non-self-executing treaties turns entirely on a treaty interpretation analysis. In contrast, I contend that Marshall applied the “two-step approach” in Foster. Marshall’s conclusion rested partly on a treaty interpretation analysis (step one), and partly on an unarticulated assumption about the constitutional allocation of authority to dispose of property belonging to the United States (step two).
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