[Robert Howse is the Lloyd C. Nelson Professor of International Law at NYU School of Law] When International Law Works is a wide-ranging work with many important and original claims and arguments. Particularly congenial is the approach that the real world effects of international law be examined not through narrow studies of rule "compliance" but in a manner that takes into...
Professor Wilde’s comments are, as always, most thoughtful. If I understand the thrust of his post correctly, Professor Wilde is concerned that if I am to present a theory built on universal values, then I should examine carefully if the values I identify are indeed universal and if other important values are left out. In particular, Professor Wilde...
I am glad that there is very little distance between me and Professor Ku. We both agree that legal theory does not have to be predictive to be successful. In this regard, Professor Ku finds my theory compelling “as a matter of politics and policy.” Professor Ku implies, however, that may have set too low a bar in attempting...
[Ralph Wilde is a Reader at the Law Faculty at University College London, University of London] It is a great pleasure to participate in the debate about this important and ambitious book. Tai-Heng Cheng deserves our attention for his impressive attempt to grapple with the fundamentals of international legal theory, and to do so as so few others seem willing...
I agree with Professor Cheng that legal theory does not have to be predictive to be successful. But I wonder if he sets the bar a bit too low. In his previous post, he writes: Providing a framework of analysis to address international problems, to guide but not control, is perhaps the best that can be done. It may also be...
Professor Ku’s review of When International Law Works is most insightful. I thank him for it. His “short bloggish description” of its thesis is as clear a summary of my book as I’ve been able to muster in two sentences. I confess I will probably appropriate it when I present the book at Temple Law School later this week. Professor...
Americans are furious. Officials are out of touch with the rest of us. If we thought about it, we should be angry that officials do not take international law more seriously. That is just another way that the people we send to Washington do not understand what we really need. American workers whose retirement funds hold GM stock should want to...
Opinio Juris is very pleased to host a Roundtable this week on Professor Tai-Heng Cheng’s recent book, When International Law Works: Realistic Idealism After 9/11 and the Global Recession (Oxford University Press). The Roundtable will proceed throughout the week and feature a fascinating and diverse group of discussants. Professor Cheng and I will kick off the discussion today, followed later...
Panel 3 of the NYU JILP Vol. 44:2 Online Symposium
Thomas Spijkerboer is professor of migration law at VU University Amsterdam. His publications in English include Gender and Refugee Status (Ashgate, 2000), Women and Immigration Law (Routledge, 2007, edited volume with Sarah van Walsum), and Fleeing Homophobia (VU University Amsterdam/COC Nederland, 2011, with Sabine Jansen). A couple of weeks ago, a friend of mine who works for the Dutch asylum authorities told me an example of why he feels uneasy about the Dutch asylum policy towards gay Iraqi asylum seekers. The short version, which is sufficient for our purposes, is that a man was badly beaten because he was (correctly) thought to be gay because he wore very tight jeans. Even from this short summary, it is clear that this man was subjected to persecution on account of his being gay. Such past persecution as a result of membership of a particular social group gives rise to a presumption of a well-founded fear of being persecuted in the future; state practice to this effect has been codified in Article 4(4) of EU Directive 2004/83. The Hathaway/Pobjoy article gives ample arguments to deny this claim, allowing this man to return to a situation in which he has a well-founded fear of being persecuted on account of being gay. The reason why they argue that this claim has to be denied is because “[w]here risk accrues only by virtue of an applicant having engaged in an activity no more than peripherally associated with sexual identity – including where risk arises from an imputation of sexual identity derived solely from having engaged in such activity – it cannot be reasonably said to be a risk that arises “ ‘for reasons of’ sexual orientation.” Without any doubt, dressing in tight jeans is in the same category as the examples taken from Lord Rodgers’ statement which apparently so turns on Hathaway and Pobjoy: attending Kylie concerts, drinking exotically colored drinks, and doing boy talk. The Hathaway/Pobjoy argument leads to denial of a refugee claim, which clearly should not be denied. Something is fundamentally wrong with their argument. I posit that their article has two problems. The first is an incorrect application of refugee law doctrine – surprising, because Hathaway’s 1991 book is such an impressive doctrinal analysis. The second consists of the fantasy (current among legal scholars, therefore less surprising) that law and politics can be meaningfully separated.Panel 3 of the NYU JILP Vol. 44:2 Online Symposium
Jenni Millbank is Professor of Law at University of Technology Sydney. She has pioneered work addressing the claims of lesbian, gay, bisexual and transgender asylum seekers and interrogating how their claims are understood (and misunderstood) in the refugee adjudication process. With Catherine Dauvergne, Professor Millbank has undertaken a series of research projects involving long term comparative analysis of sexuality and gender claims from Australia, the UK, Canada, New Zealand and the USA, which they are currently extending to include several European jurisdictions."[T]he Convention offers protection to gay and lesbian people—and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour—because they are entitled to have the same freedom from fear of persecution as their straight counterparts. No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable."
Panel 3 of the NYU JILP Vol. 44:2 Online Symposium
S. Chelvan is a Barrister at No5 Chambers, London; a PhD candidate in law at King’s College London; and a UK Country Expert and External Expert to the Advisory Board for the Fleeing Homophobia project. He is known as "a doyen of immigration cases involving issues of sexual identity.” (Chambers UK 2012).“An Englishman, Irishman and a Scotsman walk into a bar. The barman asks the Scotsman . . . .”
“To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.”What is the similarity, and then the difference, between the two passages above? The similarity is that most readers would accept that they each illustrate an example of British humour. The difference? Some observers read the second reference, taken from § 78 of Lord Rodger’s reasoning in the U.K. Supreme Court case of HJ, not to be illustrative of anything linked to humour, but rather a blatant attack on fundamental principles underlying refugee law. I align myself to the first scenario and aim in this short note to analyse why concentrating on excluding certain categories of conduct from protection misses the point. Kendall (2003 citing Mahoney J.A. in Thavakaran), rejects an approach where the “onus for removing the fear of persecution [is] on the victim, rather than the perpetrator” (see also Johnson, 2007: 107 fn. 30). What is at the core of the reasoning of the U.K. Supreme Court is not a right to what some observers may describe as “peripheral conduct”, but a right not to be persecuted, for reasons of sexual identity. Verdirame’s limitation on the conduct of a gay man, which went “beyond” what a straight man can exercise in the public sphere, is echoed in an earlier 2005 UK Asylum and Immigration Tribunal decision of AT (Homosexuals: need for discretion?) Iran [2005] UKAIT 00119. The AIT held, at § 28, in one of its most controversial determinations that resulted in complaints from the U.K. NGO’s UKLGIG and Stonewall, that:
"Whether there is or is not a ‘core right’ for persons of any sexual orientation to conduct themselves with discretion in their public sexual practices is not something we need in our view decide, though we should have thought that such discretion was part of the ordinary consensus of civilized mankind (and still more so of a number of races considered ‘uncivilized,’ so far as they still exist). The reason is that this appellant on our findings of fact, and his own expressed intentions for the future, has never shown the slightest wish to engage in homosexual conduct in any way in the face of the public or the authorities, such as might expose him to any real risk, on the background evidence, on return to Iran. Whether he has or does not have a ‘core right’ to go in for that sort of thing, his return will not expose him either to Convention persecution or ill-treatment."There are only three examples I can call upon to illustrate a rare and clearly ignorant approach to the exercise of public sex, being centrally connected with a refugee claim in the U.K. In XY (Iran) (2008), counsel for the appellant argued to the England and Wales Court of Appeal not to remove his gay client because he would be returned to a life of sex in the public bath houses and he would not be able to have sex in the family home [§ 14]. Secondly, the stance of the U.K. Home Office for many years with respect to the alleged existence of cruising in a Tehran park, where men were able to pick up other men for sex, was that this indicated an ability to be gay in Iran, and therefore gay men were not refugees. The third, and final example, is in the case of Hylton [2003] EWHC 1992 (Admin), where Counsel for the U.K. Home Office submitted that the risk group in Jamaica was limited to “a homosexual prostitute or homosexuals who cruise in particular areas” [§ 11] (position reversed in DW (2005) (AIT)).
