In association with the International Commission of Jurists

Symposia

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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25 Jan

[Carlos Vázquez, Professor of Law, Georgetown Law Center responds to David Sloss, Executing Foster v. Neilson:The Two-Step Approach to Analyzing Self-Executing Treaties. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. I agree with much of it, as I agree with much of Professor Sloss’ other writing on treaties. In particular, I agree that the two-step approach to treaty enforcement that he proposes is generally the right approach, and I agree that the “intent-based” approach to the self-execution issue that he criticizes is highly problematic. But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson. Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster. I shall address our differences on this point below. First, however, I shall explain my general agreement with the two-step approach to treaty enforcement that Professor Sloss defends. The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation. Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do. This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation. This, Professor Sloss argues, is entirely a matter of U.S domestic law, not a matter of treaty interpretation. Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent. Professor Sloss notes that treaties seldom address the question of which domestic officials – legislative, executive, or judicial – are responsible for enforcing the treaty. Instead, treaty parties almost always leave that question to the domestic law of the states-parties.
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25 Jan

[ David Sloss, Professor of Law and Director of the Center for Global Law and Policy, Santa Clara University School of Law, describes his recently published article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts. Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create.
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24 Jan

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] My thanks to Darryl Robinson and Carsten Stahn for their kind words about my Article. They are leading scholars in the area of complementarity, so I appreciate them taking the time to respond. Both have written longer, more formal responses to the Article for the Harvard International Law Journal, which interested readers should check out when they become available. In this post, I will limit myself to responding to their comments for Opinio Juris.
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