migration, mental health, and human rights

International Journal of Law and Psychiatry 27 (2004) 587–607

The madness of migration: Disquiet in the international

law relating to refugees

Fleur E. Johns*

Lecturer, Faculty of Law, University of Sydney, Australia

1. Introduction

Teachings about the importance to health of avoiding extremes and containing pathology have

long nourished practices of governance and theories of legal order. Policies of noncriminal detention

and segregation implemented by legal means have, in particular, often been justified by reference to

the language of healing, harmony and hygiene.1 In the late modern period, the maxim beverything in

moderationQ continues to animate popular and professional attitudes about health, including ideas about

the supposed importance to States’ economic, social and political health of containing or repelling

asylum-seekers. At the same time, a notion has prospered among refugee lawyers that international law

relating to refugees tends to operate as a restorative, tempering or disciplinary influence upon

immoderate State action (or inaction) in this context.

Among targeted instances of States’ immoderation, national policies marginalizing or

subjugating asylum-seekers, refugees and immigrants have been the focus of particular, critical

attention in both the legal and medical literature, as evidenced by other contributions to this

volume. International refugee law often features in these accounts as an actual or potential deus

ex machina. It is invoked as a check upon the failures or excesses of national sovereignty, in

opposition to States’ apparent indifference towards those who fall into politico-territorial cracks

0160-2527/$ -

doi:10.1016/j.i

* Tel.: +61

E-mail add1David Gen

Penny Roberts, E

Pol. and Hist.

Civilisation:

documented the

Metaphors, 4

see front matter D 2004 Elsevier Inc. All rights reserved.

jlp.2004.08.003

2 9351 0387; fax: +61 2 9351 0200.

ress: [email protected].

tilcore, The Fear of Disease and the Disease of Fear, in Fear in EarlyModern Society, 184–208 (William G. Naphy and

ds., 1997); Alison Bashford and Carolyn Strange, Asylum-Seekers and National Histories of Detention 48(4) Australian J.

509 (2002); Michel Foucault, Folie et deraison: Histoire de la folie (rev. ed., 1972), translated as Madness and

A History of Insanity in the Age of Reason (Alan Sheridan trans., Vintage, 1988) (1965). Susan Sontag has

historical prevalence of a link between bimagining disease and imagining foreignnessQ. See Susan Sontag, Aids and its

7 (1989). See also Susan Sontag, Illness as Metaphor (1978) and William H. McNeill, Plagues and Peoples (1989).

F.E. Johns / International Journal of Law and Psychiatry 27 (2004) 587–607588

between nations.2 In this article, however, I will work against this redemptive characterization of

international refugee law in relation to action (or inaction) on the part of States. Instead, I will explore an

intuition that international refugee law tends to foster a sense that multivalent allegiance and migratory

diffusion are deviant, unnatural impulses. International refugee law is, I will argue, as much a producer

of instincts associating migration with pathology, as it is their ostensible therapy.

One of the authoritative texts to which specialists in international refugee law frequently have

recourse is the 1951 United Nations Convention relating to the Status of Refugees (the bRefugeeConventionQ).3 The Refugee Convention classifies refugees as bproblem[s]Q and bcause[s] of tensionQand works towards resolving these bproblem[s]Q and btension[s]Q by various means discussed below. Yet

where, this article asks, lies the bproblemQ to be cured by recourse to international refugee law and

lawyers? Does it reside in the wars, famines and political conflicts that are reported to drive people from

their countries of nationality? Does it reside in the trauma of border-transgression to which refugees are

subject and/or the troubles traceable to that trauma? Does it reside in the callousness of national

governments and judges, or the xenophobia of the constituencies that support them? Does it rest as

much, as this article will suggest, with international refugee law’s disciplinary paranoia: its stylistic (one

might say grammatical) tendency to insist upon the normality of stable and enduring national

attachments; its innate preference for limited, fear-laden divergences there from?

In short, the argument of this article is that international refugee lawyers might focus at least some

critical attention away from the work of national governments and other bpersecutorsQ (and those

decisive bpushQ and bpullQ forces that they supposedly generate). Instead, international refugee lawyers

might take a moment to question the pre-eminence of the therapeutic mode in their professional work

and its role in sustaining a prescriptive normality that tends to diagnose the refugee as flawed and

requiring correction. Might our instruments and strategies of cure be tainted by the very drives against

which we supposedly labor in the international refugee law field? Might insistence that international

refugee law has or should have therapeutic, corrective effects comprise part of the problem towards

which it ostensibly directs those curative efforts?4 If so, does international refugee law offer a cure for

this ill, and is it a bcureQ that we should be seeking?

2See, e.g., Andrew N. Langham, Comment: The Erosion of Refugee Rights in Australia: Two Proposed Amendments to the Migration Act,

8 Pac. Rim L. and Pol’y J. 651, 653–654 (1999) (bIn the aftermath of World War II, a genuine resolve emerged among the international

community to provide legal mechanisms to help refugees. . .Currently, 136 countries are party to one or both of the [the Refugee Convention and

its 1967 Protocol] and, in the interest of safeguarding the rights and well-being of the world’s 12 million refugees, have accepted a duty to

compromise state sovereignty in the immigration context. . .Protective standards and procedures have been incorporated into municipal law as

an increasing number of states have become parties to these agreementsQ.). See also Maryellen Fullerton, Failing the Test: Germany Leads

Europe in Dismantling Refugee Protection, 36 Tex. Int’l L.J. 231, 274 (2001) (bInternational law requires [that immigrants detained pending

deportation] receive treatment appropriate to their unconvicted status. The German detention system does not provide appropriate treatment. The

growing use of detention pending the deportation of rejected asylum-seekers, particularly the practice of housing them in prisons holding

convicted criminals, is a growing violation of international lawQ.).3Convention Relating to the Status of Refugees, 28 July 1951, T.I.A.S. No. 6577, 189 U.N.T.S. 150, 152 (entered into force 22 April 1954),

as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force 4 October

1967) [hereinafter Refugee Convention].4In arguing that international refugee law’s therapeutic posture is itself potentially problematic, this article stands apart from that body of

literature which, under the rubric of btherapeutic jurisprudenceQ seeks to maximize law’s therapeutic effects towards the emotional and

psychological wellbeing of persons affected by the law. See, e.g., David B. Wexler, The Development of Therapeutic Jurisprudence: From

Theory to Practice, 68 Revista Juridica 691 (1999); David B. Wexler and Bruce J. Winick (eds), The Law in a Therapeutic Key:

Developments in Therapeutic Jurisprudence (1996). In contrast, this article seeks to show that notions of bwellbeingQ predicatedupon stability, continuity and wholeness, and therapeutic efforts directed towards such ends, exert normative force that some, including those for

whom these are neither aspirations nor necessities, might be better off resisting.

F.E. Johns / International Journal of Law and Psychiatry 27 (2004) 587–607 589

This article poses these questions from a political stance of solidarity with the claims and entitlements

of asylum-seekers and immigrants and opposition to regulatory initiatives designed to curtail those

claims and entitlements. These may seem hazardous inquiries to undertake from such a position, in a

climate that already seems hostile to asylum-seekers’ claims and ill disposed to international refugee

lawyers’ endeavors. Yet it is precisely this climate that calls for the troubling of pure/impure, rational/

irrational, pious/profane, healing/damaging, normal/abnormal classifications, including with respect to

international refugee law itself.

Following this introduction, Section 2 of this article will contend that writings in international refugee

law tend to exhibit a characteristic disciplinary bearing towards the refugee. This sees the refugee cast as

an anomaly disrupting the otherwise stable grid of nationalities—a source of tension and friction

demanding international refugee law’s therapeutic intervention. At the same time, migratory flight from

one nationality to another tends to be portrayed as a form of madness requiring rational correction.

Section 3 examines three instances in which international refugee law has been deployed in the face of

this bmadnessQ in national courts (decisions from Australia, Canada and the United States, respectively).

These case-readings probe further the intuition that international refugee law participates in the

production of the ill that it purports to cure: that it pathologises refugee behavior in the process of

rendering it comprehensible and remediable in legal terms. Section 4 then considers some possible

ramifications of these contentions. Section 5 is a brief conclusion.

2. Law’s pathology: foreign bodies in international refugee law

International refugee law is a heterogeneous and diffuse field of imprecise dimensions and divergent

affiliations. In recognizing the range of institutions and personages caught up in the work of

binternational refugee lawQ, one might also note distinctions of status, style, limitations and capabilities

among those operating in this field.5 These distinctions are frequently worked out along the following

axes: refugee protection vs. grant of asylum;6 economic migrants vs. political refugees;7 pragmatic

6See Kennedy, supra note 5, for discussion of the institutional practice of differentiating between doctrines of basylumQ and doctrines of

brefugee-protectionQ.

5For a range of insights on the field, see David Kennedy, International Refugee Protection, (1986) 8 Hum. Rts. Q. 1; Barbara E. Harrell-

Bond, Imposing Aid: Emergency Assistance to Refugees (1986); Margaret H. Taylor, Promoting Legal Representation For Detained

Aliens: Litigation and Administrative Reform, 29 Conn. L. Rev. 1647 (1997); Saskia Sassen, Immigration Policy in a Global Economy, 17(2)

SAIS Rev. 1 (1997); Michael Alexander, Refugee Status Determination Conducted by UNHCR, 11 Int’l J. Refugee L. 252 (1999); David

Weissbrodt, Mayra Gomez, and Bret Thiele, An Analysis of the Fifty-first Session of the United Nations Sub-Commission on the Promotion and

Protection of Human Rights, 22(3) Hum. Rts. Q. 788, 809–811 (2000); Stephan Anagnost, The Challenge Of Providing High Quality, Low

Cost Legal Aid For Asylum Seekers And Refugees 12 Int’l J. Refugee L. 577 (2000); Gil Loescher, The UNHCR and World Politics:

A Perilous Path (2001); Marie A. Taylor, Immigration Enforcement Post-September 11: Safeguarding the Civil Rights of Middle Eastern-

American and Immigrant Communities 17 Geo. Immig. L.J. 63 (2002). See also http://www.asylumlaw.org (a web site maintained by agencies

dedicated to helping asylum seekers in Australia, Canada, the United States, and several countries in Europe, which includes contact details for

refugee lawyers and advocates and a variety of other legal btoolsQ) (last visited January 12, 2003).

7See, e.g., Office of the United Nations High Commissioner for Refugees (hereinafter UNHCR), Handbook on Procedures and Criteria for

Determining Refugee Status, para. 62 (2001) (bA migrant is a person who, for reasons other than those contained in the definition, voluntarily

leaves his country in order to take up residence elsewhere. He may be moved by the desire for change or adventure, or by family or other

reasons of a personal nature. If he is moved exclusively by economic considerations, he is an economic migrant and not a refugeeQ). ThisHandbook is accessible at http://www.hrea.org/learn/tutorials/refugees/Handbook (last visited December 16 2003).

http://www.asylumlaw.org

http://www.hrea.org/learn/tutorials/refugees/Handbook

http://www.asylumlaw.org

http://www.hrea.org/learn/tutorials/refugees/Handbook


exigencies vs. universal principles;8 public law vs. private law;9 needs-oriented vs. rights-oriented;10

national vs. international;11 political vs. legal;12 and human rights-focused vs. State interest-focused.13

Here the asylum-seeker is a need-heavy exile requiring emergency assistance from international

organizations; there the refugee is a right-wielding claimant invoking the authority of the judiciary in a

particular State. Here circumstances sanction a bpragmaticQ solution cobbled together on the spot by

political field-workers; there, conditions mandate the skilled shaping of legal principle, and measured

allocation of entitlements, for enduring effect. The role in which the refugee or asylum-seeker is cast

tends to shift, along with the authority of the pertinent agents and agencies, across the spectrum of

these jurisdictional articulations. As has been noted elsewhere, the dividing lines intersecting this

spectrum (between, for example, the economic migrant and the political refugee) are bindistinct anddifficultQ to draw, notwithstanding the onerous ramifications of their drawing.14

Throughout, however, the refugee remains a persistently troublesome figure: part victim; part hero;

part enigma. We know this already from the teachings of the Refugee Convention, which states in its

Preamble b[t]he wish that all States, recognizing the social and humanitarian nature of the problem

of refugees will do everything within their power to prevent this problem from becoming a cause of

tension between StatesQ. Across international refugee law (even aside from the problems of refugee-

identification), the refugee is dubbed a bproblemQ for States.15 It is a problem with which the Refugee

Convention must struggle in order to quell btensionQ and facilitate bcooperationQ. To this end, Article 1F

of the Refugee Convention works to eliminate from the sphere of the Convention’s operation those

persons among these bproblem[atic]Q figures who are understood to pose greatest danger to the prospect

of binternational cooperationQ between States. Those so eliminated are persons who, by their actions, are

8See, e.g., Michael J. Parrish, Note, Redefining the Refugee: The Universal Declaration of Human Rights as a Basis for Refugee

Protection, 22 Cardozo L. Rev. 223, 248–249 (2000) (b[T]here is a real danger that the definition [of a refugee] is becoming a pliable tool in

the hands of asylum adjudicators to be used to implement pragmatic immigration policies without regard to the underlying purposes of

international refugee law or the fair and just treatment of asylum-seekersQ).9See, e.g., Harold Hongju Koh, The Globalization of Freedom, 26 Yale J. Int’l L. 305, 305 (2001) (bAround the world, public law

concepts are emerging, rooted in shared national norms and emerging international norms, that have similar or identical meaning in every

national system: for example,. . .the concept of dthe internally displacedT in refugee and immigration lawQ).10

See, e.g., James C. Hathaway and Anne K. Cusick, Refugee Rights are Not Negotiable, 14 Geo. Immig. L.J. 481, 539 (2000) (b[T]heUnited States may validly devise whatever policies it views as best able to reconcile the needs of refugees to the legitimate interests of the

American communities that will receive them. But refugee rights are not negotiableQ); Deborah E. Anker, Boundaries in the Field of Human

Rights: Refugee Law, Gender, and the Human Rights Paradigm 15 Harv. Hum. Rts. J. 133, 133 (2002) (b[R]efugee law increasingly refers to,

and more explicitly acknowledges its foundation in, an international human rights paradigm. . .Despite this growing synchronicity and

longstanding, close connections between the two fields, international human rights law continues to distance itself from refugee lawQ).11

See, e.g., UNHCR, International Solidarity and Burden-Sharing in All Its Aspects: National, Regional and International Responsibilities

for Refugees, U.N. Doc. A/AC.96/904, paras. 3–6 (1998).12

See Kennedy, supra note 5, at 14.13

See, e.g., Kjaerum Morten, Refugee Protection Between State Interests and Human Rights: Where is Europe Heading?, 24 Hum. Rts.

Q. 513 (2002).14

David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247, 1275 (1990). See

also Mary Crock, A Sanctuary under Review: Where to from Here for Australia’s Refugee and Humanitarian Program? 23 U.N.S.W.L.J. 246,

251–252 (2000).15

On the acknowledged difficulty and arbitrariness of distinguishing bgenuineQ or bbona fideQ refugees from beconomic immigrantsQ andbasylum-seekersQ, thereby conferring popular legitimacy and legal entitlement on the former and not the latter, see ibid and Sabine Weidlich,

First Instance Asylum Proceedings in Europe: Do Bona Fide Refugees find Protection? 14 Geo. Immig. L.J. 643 (2000). This difficulty is not

one on which this article is principally focused, except as a further instance of the undecidedness of international refugee law.


understood to have defied (or defiled) the integrity of the bsystemQ enshrined in the Charter of the UnitedNations.16

Furthermore, under Article 1C, continued access to the entitlements afforded by the Refugee

Convention is made contingent on a number of additional gate-keeping factors. Where a putative refugee

has bvoluntarily re-availedQ herself of bthe protection of the country of [her] nationalityQ, bvoluntarily re-

acquiredQ a nationality formerly lost, bvoluntarily re-established [her]self in the country which [s]he left oroutside of which [s]he remainedQ or has persisted in unjustified refusal bto avail [her]self of the protectionof the country of [her] nationalityQ, then the Refugee Convention bshall cease to applyQ to such a person.17

The act of willing submission to nationality (whether by bacqui[sition]Q or bhabitual residenceQ) is,according to Article 1C of the Refugee Convention, the consummate expression of legal capacity and

political potential. International refugee law’s role is cast as that of restoring bvoluntaryQ allegiance to a

singular, fixed point on the grid of States’ territories. Those identified with a particular country are

beyond the corrective competence of the Refugee Convention. The attribution or acquisition of

nationality completes them politically and legally. Moreover, the bond of nationality is to surpass all

associations with brace, religion or country of originQ, according to the nondiscrimination requirement in

Article 3 of the Refugee Convention.18

The implications so generated by the Refugee Convention are readily apparent. The refugee’s

incomplete, undecided or supplementary status to nationhood amounts to an intolerable breach—a

bproblemQ. By failing to live up to the expectation (the obligation?) of bvoluntaryQ steadfastness and insteadliving out a jurisdictional ambivalence, the refugee poses an impossible question. The refugee’s physical

externality to, or estrangement from, the ideology of nationality brings to the fore the contingency, fragility

and belligerence of any belonging—whether national or otherwise. By definition, the refugee is boutsidethe country of his nationalityQ and bunwilling to avail himself of the protection of that countryQ. The passiveinexorability of national belonging must be affirmed, in response to this challenge, by explaining the

refugee’s actions as involuntary. The refugee’s ambivalence is, and can only be, bowing to. . .fearQ ofpersecution bfor reasons of race, religion, nationality, membership of a particular social group or political

opinionQ.19 The refugee’s plight is accounted for as a temporary failure of compulsory nationhood to

complete itself, to rid itself of btensionQ and to supersede subordinate, corruptive allegiances.20

The tendentiousness of refugees’ unresolved relationship to nationality is underscored by refugees’

implied association, in the Refugee Convention, with criminality and disorder.21 Refugees’ exile seems

to evince that violent, implacable drive for distinction that belonging frequently entails, but which

nationality strives to erase from memory. The associated sense of menace spills over into a generalized

air of peril, seemingly emanating from the refugee. Allusions to refugees’ supposed dangerousness are

16U.N. Charter art. 4, para. 1: bMembership in the United Nations is open to all peace-loving states. . .Q See infra note 25 and related

text.17

Refugee Convention, supra note 3, art. 1C.18

Id., art. 3.19

Id., art. 1A(2).20

Id., art. 3. See Crock, supra note 14, at 252.21

Cf. Sharryn J. Aiken, Of Gods and Monsters: National Security and Canadian Refugee Policy, 14 Rev. Quebecoise de Droit Int’l

7, 9 (2001) (countering that b[n]umerous studies confirm that the overall impact of refugee flows on the crime rate and internal security of

receiving countries tends to be misjudged and overestimatedQ); Bill Ong Hing, The Immigrant as Criminal: Punishing Dreamers, 9 Hastings

Women’s L.J. 79, 79 (1998) (bBeing a boat person is a crime. . .We punish people for this crime. We capture them, imprison them, hold them

without bail in many cases; we relocate them to places inaccessible to volunteer attorneys, charge them with a misdemeanor, exclude and deport

themQ).


amplified in the accounts of those concerned to stem or taper immigration flows, yet these are discernible

too in the most benevolent of international legal protection efforts. Hence the effort, in Article 1F, to

eliminate from the Refugee Convention’s ambit any putative refugee with respect to whom:

22

23

24

25

26

27

(1996)

[T]here are serious reasons for considering that:

(a) [H]e has committed a crime against peace, a war crime, or a crime against humanity. . .;(b) he has committed a serious non-political crime outside the country of refuge prior to his admission

to that country as a refugee; [or]

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.22

Article 2 follows this with an admonitory reminder: bEvery refugee has duties to the country in which

[s]he finds h[er]self, which requires in particular that [s]he conform to its laws and regulations as well as

to measures taken for the maintenance of public orderQ.23

The Refugee Convention declares itself, in its Preamble, a document expressive of bprofound concernfor refugeesQ.24 Yet it turns immediately, in its first two articles, to concern about refugees and the

prospect of their bthrowing back on to the world the disorder of which [jurisdictional] being is

composedQ.25 Against this disorder, the Refugee Convention works, in a curative mode, to facilitate the

acquisition of indicia of permanence within a bhostQ or brefugeQ State. So Articles 12 through 30 of the

Refugee Convention focus on refugees’ acquisition of property rights and their absorption into the

bureaucratic and juridical body of the State.26 The bhealingQ that the Refugee Convention administers is

that of graft and temperance. The refugee is to be tutored in the indispensability of national bpublicorderQ to the refugee’s safety and completion. International refugee law’s therapeutic counsel in this

respect has an insistent timbre, aligned with the disciplinary posture of psychiatry as characterized by

sociologist Nikolas Rose:

Professionals become tutors—sometimes gentle, sometimes harsh—in the arts of self-management:

keep your appointments, take your medicine, do not get drunk or violent—or you will lose your

place in this project. The will to cure becomes little more than the inculcation of a particular type of

relation to the self—prudent self management, making contracts and abiding by them, setting

reasonable targets, and achieving them, learning skills of management of everyday life.27

3. Law’s prescription: some late modern readings of the 1951 refugee convention

The observation that the Refugee Convention affirms faith in a world order comprised partially yet

decisively of States is not, in itself, particularly incisive. In the Supreme Court of Canada in 1993, for

Refugee Convention, supra note 3, art. 1F.

Id., art. 2.

Id., preamble para.2.

Jacques Lacan, Ecrits: A Selection, 22 (Alan Sheridan trans., Routledge, 1989) (1977).

Refugee Convention, supra note 3, arts. 12–30.

Nikolas Rose, Psychiatry as a Political Science: Advanced Liberalism and the Administration of Risk, 9 Hist. Hum. Sci. 1, 14–15

. See generally Nikolas Rose, Governing the Soul: The Shaping of the Private Self (2nd ed. 1999).


example, La Forest J made a similar observation when he remarked: bInternational refugee law was

formulated to serve as a back-up to the protection one expects from the state of which an individual is a

nationalQ.28

Less frequently noted, however, is the extent to which the affirmation of an order premised on

singular national allegiances depends upon the association of those who depart from this pattern with

irrationality, deficiency, and duplicity—even criminality.29 In this sense, the Refugee Convention’s

bcureQ for refugees’ alienation may be read as at least partially productive of or acquiescent in that

alienation. This might, in turn, be read as an effort to deflect, onto the refugee and the

bparticular. . .groupQ of which she is a part, the vulnerability of nationality made apparent by her claim.

As a vehicle for the consummation of sociopolitical possibility, the deficiency of the nation is

highlighted by the refugee’s flight. By attributing this flight, instead, to bpersecutionQ emanating from a

particular subnational bgroupQ, the Refugee Convention strives to avert an effusion of the turmoil of

which nationality is made.

Are such associations and strategies manifest in judicial treatment of particular refugees’ claims?

If so, what are their ramifications? To explore these questions, I have focused on three leading

cases in which the Refugee Convention has been invoked in bhostQ or brefugeQ jurisdictions:

Australia, Canada and the United States. Two of these cases are noteworthy as instances of an

asylum-seeker claimant bwinningQ in appellate legal argument revolving around the Refugee

Convention. The third case, from the U.S., represented a devastating loss to refugee advocates. Yet

it nonetheless yielded a forceful dissent upon which such advocates have frequently seized to

oppose U.S. refugee and immigration policy. To this extent, these cases might be regarded as

instances of the successful deployment of international refugee law’s remedial force and, as such,

might be regarded as vehicles for faith in that force. In addition, two of these three cases recount

stories of flight from or via the bOld WorldQ (or its former colonial holdings) to the bNew WorldQ.These narratives articulate confidence in, and respect for, efforts of self-renewal familiar from the

myriad foundation myths of the New World.30 They also express, however, that characteristically New

World desire for reconnection with the brootsQ, and reorientation within the order, of the Old World—an

anxiety compulsively resistant to declassification and diffusion, including that associated with the figure

of the refugee.31

3.1. Minister for immigration and multicultural affairs vs. Khawar

In 2001, the High Court of Australia heard an application from the Minister for Immigration and

Multicultural Affairs concerning the case of Ms. Naima Khawar, a citizen of Pakistan, and her three

28Attorney-General of Canada vs. Ward (1993) 103 DLR 1, 12.

29Cf. Patricia Tuitt, False Images: The Law’s Construction of the Refugee (1996). Cf also Richard C. Keller, Madness and

Colonization: Psychiatry in the British and French Empires, 1800–1962, 35 J. Soc. Hist. 295 (2001) and sources cited therein.30

See generally Eric J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (2nd ed., 1992);

Jeffrey K. Olick (Ed), States of memory: Continuities, Conflicts, and Transformations in National Retrospection

(2003).31

Cf. Ashis Nandy, The Intimate Enemy: Loss and Recovery of Self under Colonialism (1983); John R. Campbell and

Alan Rew (Eds.), Identity and Affect: Experiences of Identity in a Globalising World (1999). Contra Dan Danielsen and

Karen Engle (Eds.), After Identity: A Reader in Law and Culture (1995).


children.32 Ms. Khawar had sought to bring herself and her children within the definition of Article

1A(2) of the Refugee Convention (as incorporated into Australian law by section 36(2) of the Migration

Act 1958). This definition is as follows:

32

Knight

Revisit

794–7933

34

35

36

37

38

39

For the purposes of the present Convention, the term brefugeeQ shall apply to any person who:

. . .owing to a well-founded fear of being persecuted for reasons of race, religion, nationality,

membership of a particular social group or political opinion, is outside the country of his

nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of

that country; or who, not having a nationality and being outside the country of his former habitual

residence, is unable or, owing to such fear, is unwilling to return to it.33

Ms. Khawar maintained that her and her children’s bwell-founded of being persecutedQ arose from her

subjection to bserious and prolonged domestic violence on the part of her husband and members of his

familyQ.34 In an earlier decision of the Full Court of the Federal Court, Lindgren J. gave a synopsis of theevidence that Ms. Khawar had submitted in support of this claim.35 This recounted approximately 12

years of recurrent violence against Ms. Khawar, including beatings, threats and verbal abuse, and one

incident in which her husband and his brother had doused Ms. Khawar with petrol. Four complaints

made by Ms. Khawar to the Pakistani police had reportedly been to no avail. Ms. Khawar argued that

bthe police in Pakistan refused to enforce the lawQ against this violence, which refusal comprised bpart of[a program of] systematic discrimination against women. . .both tolerated and sanctioned by the stateQ.36

Ms. Khawar’s application for protection visas on the foregoing grounds was refused by a delegate of

the Minister for Immigration and Multicultural Affairs (the bMinisterQ), which refusal was affirmed by

Australia’s Refugee Review Tribunal. On appeal, Branson J. of the Federal Court of Australia concluded

that the Refugee Review Tribunal had erred in law in its interpretation of the Refugee Convention and its

failure to make certain findings on issues of fact.37 The Minister appealed to the Full Court of the Federal

Court of Australia, which appeal was dismissed by a majority of two to one.38 The Minister appealed

against that dismissal to the High Court of Australia, focusing the attention of that Court on two issues.

The first of these issues was bwhether the failure of a country to provide protection against domestic

violence to women, in circumstances where the motivation of the perpetrators is private, can result in

persecution of the kind referred to in Art[icle] 1A(2) of the [Refugee] ConventionQ. The second issue in

contention was bwhether women (or, for the present purposes, women in Pakistan) may constitute a

particular social group within the meaning of the [Refugee] ConventionQ.39

In other words, the question that the High Court was called to answer was whether Ms. Khawar’s

experiences were such as to render unavoidable her defiance of the presumed priority and sufficiency of

Minister for Immigration and Multicultural Affairs vs. Khawar (2002) 187 ALR 574. For other discussions of this case, see Stephen M.

, Reflections on Khawar: Recognizing the Refugee from Family Violence, 14 Hastings Women’s L.J. 27 (2003); Karen Musalo,

ing Social Group and Nexus in Gender Asylum Claims: A Unifying Rationale for Evolving Jurisprudence, 52 DePaul L. Rev. 777,

8 (2003).

Refugee Convention, supra note 3, art. 1A(2).

Minister for Immigration and Multicultural Affairs vs. Khawar 187 A.L.R. 574, 576 (2002).

Minister for Immigration and Multicultural Affairs vs. Khawar 101 F.C.R. 501, 524–527 (2000).

Minister for Immigration and Multicultural Affairs vs. Khawar 187 A.L.R. 574, 576–577 (2002).

Khawar vs. Minister for Immigration and Multicultural Affairs 168 A.L.R. 190 (1999).

Minister for Immigration and Multicultural Affairs vs. Khawar 101 F.C.R. 501 (2000).

Minister for Immigration and Multicultural Affairs vs. Khawar 187 A.L.R. 574, 577 (2002) (per Gleeson C.J.).


national citizenship (not to mention membership of her matrimonial family). Only if her flight could be

rationalized as an instance of involuntary behavior referable to a bparticular social groupQ would Ms.

Khawar and her children be afforded the restorative entitlements meted out by the Refugee Convention

(and, by extension, Australia’s Migration Act). If their flight-from-the-national could not be so

pathologised—if it were found to be calculated, opportunistic or commonplace—Ms. Khawar and her

children would be reoriented by the Refugee Convention back towards the Pakistani nation as the only

appropriate vehicle through which to enact their ambitions for renewal. Preferring the former outcome,

the High Court, by a majority of four to one, found in favor of Ms. Khawar. In three separate judgments,

members of the majority ruled that the appeal of the Minister should be dismissed and the matter referred

back to the Refugee Review Tribunal for further findings.

Notwithstanding this bfavorableQ result, there is something discomforting about the register in which

the decisions in the Khawar case were written. Ms. Khawar’s experiences were characterized in

hyperbolic and anomalous terms. Reference was made to the Pakistani State’s bfailureQ, bbreakdownQand binabilityQ to function—failure beyond explanation as a matter of bentrenched cultural attitudesQ,bmer[e]. . .local. . .corrupt[ion], or inefficien[cy] or laz[iness]Q. Even as the High Court depicted the

blocalQ domain of Pakistani governance as a scene of routine dysfunction, Ms. Khawar’s experience was

dubbed bexceptionalQ. Emphasis was placed upon the bhopeless[ness]Q and bintolerab[ility]Q of Ms.

Khawar’s circumstances. Indeed, it was crucial to the legal success of Ms. Khawar’s appeal that her

experiences and actions be so excised from the sphere of the bnormalQ. The judgment of the sole member

of the High Court to find against Ms. Khawar (Callinan J.) rested, in contrast, upon the normalization of

her experience—it was, Callinan J. maintained, an instance of bviolent family discordQ that bsadly occursfrom time to time everywhereQ.40

The sense of alarm engendered by the High Court majority’s sensational description of Ms. Khawar’s

life was compounded by recurrent allusions to deception on the part of Ms. Khawar. Lindgren J., in the

Federal Court, remarked that Ms. Khawar’s initial application for a visa was made under false pretences,

bstating that she wished to visit her pregnant sister-in-law in AustraliaQ. Her brother-in-law was reported

to have accompanied her to an interview at the Australian High Commission bpretending to be her

husbandQ.41 In the High Court, oblique and inconclusive remarks were made, by Gleeson C.J. and (in

their joint judgment) McHugh and Gummow J.J., referring to two anonymous letters received by the

Refugee Review Tribunal. These reportedly suggested that Ms. Khawar’s claim to be a victim of

domestic violence was bbogusQ and bby implicationQ that bshe and her husband were colludingQ. TheHigh Court found it unnecessary to deal with these allegations in light of the Refugee Review Tribunal’s

contention that her claim to refugee status was, in any event, bfundamentally flawedQ as a matter of law.

McHugh and Gummow J.J. cautioned expressly that bnothing said here forecloses the tribunal from

making a finding upon. . .the question whether Mrs. Khawar’s case has been fabricatedQ. Accordingly,these allegations and bimplication[s]Q were left hanging redolently in the air—unproven yet undisputed.

The High Court did not make any reference to efforts of Ms. Khawar to refute these insinuations before

the Refugee Review Tribunal, beyond noting that Ms. Khawar bdenied these allegations, but the

Tribunal did not express any conclusion on the matterQ.42

40Id., at 580–581, 601–603, 610.

41Minister for Immigration and Multicultural Affairs vs. Khawar 101 F.C.R. 501, 527 (2000).

42Minister for Immigration and Multicultural Affairs vs. Khawar 187 A.L.R. 574, 577 (per Gleeson C.J.); 586, 595 (per McHugh and

Gummow JJ.) (2002).


Between the view of the majority and that of Callinan J., readers of this case are thus presented

with an unenviable choice. One could endorse—as this writer is inclined to do—the majority’s

(favorable) account of Ms. Khawar’s situation in order to assure her asylum in Australia. Yet in

doing so, one is compelled to acquiesce in the majority’s tacit relegation of Ms. Khawar’s

predicament to the realm of strangeness—strangeness demanding special correction under the rubric

of the Refugee Convention (or bthe exceptional involvement of international lawQ).43 Alternatively,

one could accede to Callinan J.’s dissenting contention that violence against women is a lamentable, yet

entirely unremarkable feature of the familial and national everyday—something that happens

everywhere, not only in Pakistan, and was accordingly not worthy of international refugee law’s

remark. In the context of the Refugee Convention, Callinan J. concluded that the experience of State-

tolerated, gendered violence should not be expected to excite any collective bactivity, belief, interest orgoalQ meriting legal note.44

On one hand, Ms. Khawar’s experience was cast as too extreme to challenge the exhaustiveness and

safety of nationality (in relation to the brefugeQ State). On the other hand, Ms. Khawar’s experience was

cast as too mundane to trigger any such disruption (in relation to the bhomeQ State). Even as the majority

judgment in Khawar should—I submit—be lauded for its willingness to afford protection visas to those

fleeing domestic violence, there is cause to be vigilant with respect to its insistence upon the

improbability of Ms. Khawar’s circumstances. The majority judgment remains adamant as to the

peaceable normality of singular national (and familial) allegiances: its medicine retains an acid sting for

those who would defy this cure.

3.2. Pushpanathan vs. Canada (Minister for Citizenship and Immigration)

Under Article 1F(c) of the Refugee Convention, an asylum-seeker may be refused protection under

the Convention regardless of his or her satisfaction of the requirements of Article 1A(2) discussed in the

Khawar case. As noted above, the rationales for a putative refugee’s exclusion under Article 1F(c) range

from his or her commission of ba crime against peace, a war crime, or a crime against humanityQ to his orher engagement in bacts contrary to the principles and purposes of the United NationsQ. The 1998 case ofPushpanathan vs. Canada (Minister for Citizenship and Immigration) was occasion for the Supreme

Court of Canada to consider this aspect of the Refugee Convention.45 Before the Court in this case was

the question whether Canadian authorities’ exclusion from refugee status of an individual convicted of a

serious narcotic offence amounted to an error of law.

43Id., at 601 (per Kirby J.).

44Id., at 610 (per Callinan J.). Cf. Hill J.’s dissenting judgment in the decision of the Full Court of the Federal Court, remarking that while

bMs. Khawar has undoubtedly been ill-treatedQ, it would be ban incorrect use of the word dpersecutionT to apply to a failure or lack of interest bythe police. . .There is, and it is not a matter of which we can be proud, a lack of enthusiasm in the authorities in Australia to come to the aid of

women who are victims of domestic violence, but it would not be suggested that the state is. . .persecuting those women in AustraliaQ. Minister

for Immigration and Multicultural Affairs vs. Khawar 101 F.C.R. 501, 504 (2000).45

Pushpanathan vs. Canada (Minister for Citizenship and Immigration) [1998] 1 S.C.R. 982 (Can.). For other discussion of this case, see

James C. Hathaway and Colin J. Harvey, Framing Refugee Protection in the New World Disorder 34 Cornell Int’l L.J. 257, 287–288

(2001); Akbar Rasulov, Criminals as Refugees: The bBalancing ExerciseQ and Article 1F(B) of the Refugee Convention, 16 Geo. Immig. L.J.

815, 830 (2002). For other jurisprudence on Article 1F of the Refugee Convention, see Geoff Gilbert, Current Issues in the Application of the

Exclusion Clauses, in Refugee Protection in International Law: UNHCR’s Global Consultations on International

Protection, 425–478 (Erika Feller, Volker Tqrk and Frances Nicholson Eds., 2003).


The appellant in this case, Mr. Veluppillai Pushpanathan, had bleft his native Sri Lanka in 1983 and

spent time in India and France before arriving in Canada, via Italy, on March 21, 1985Q.46 In Canada, theappellant claimed refugee status on the basis of his prior detention by Sri Lankan authorities on account

of his political activities, and the likelihood of his being similarly persecuted upon return to Sri Lanka.

This claim of refugee status was, however, never adjudicated as the appellant was granted permanent

resident status in May 1987 under what was described by the Court as an badministrative programQ. InDecember 1987, the appellant was arrested and convicted in Canada of conspiracy to traffic in a narcotic

(heroin), for which he was sentenced to 8 years in prison. In September 1991, while on parole, the

appellant renewed his application for protection under the Refugee Convention, as implemented by the

Canadian Immigration Act.47

The proceedings before the Supreme Court in Pushpanathan arose from a 1992 order for Mr.

Pushpanathan’s deportation, issued under a legislative provision providing for the deportation of any

permanent resident found guilty of an offence for which a sentence of more than 6 months’

imprisonment has been imposed. Thereafter, Employment and Immigration Canada (bEICQ) requestedthat the Convention Refugee Determination Division of the Canadian Immigration and Refugee Board

(bIRBQ) determine whether Mr. Pushpanathan was a refugee—a negative response to this question being

a condition precedent to his lawful deportation. The IRB ruled that the appellant was not a refugee under

the Refugee Convention in view of the effect of Article 1F(c) of the Refugee Convention (such that the

EIC could deport him).48 The Canadian Federal Court (Trial Division) and the Federal Court of Appeal

affirmed this IRB ruling. However, a majority of the Supreme Court allowed Mr. Pushpanathan’s 1998

appeal against the Federal Court of Appeal’s ruling (by a majority of four to two).

A hearing de novo before the IRB nevertheless resulted in Mr. Pushpanathan again being excluded

from protection under the Refugee Convention (under the same Article 1F(c) of the Refugee

Convention). This decision was taken on grounds of his having engaged in crimes against humanity and

terrorist activities associated with the Liberation Tigers of Tamil Eelam (bLTTEQ). The Federal Court

dismissed an application for judicial review of the IRB’s decision in this second instance in 2002.49 For

purposes of this article, however, attention will be focused on the bfavorableQ decision of the Canadian

Supreme Court in 1998.

Writing for the majority in the Supreme Court, Bastarache J. endorsed the view of refugee law

specialist Professor James Hathaway that the bevidentiary and contextual concernsQ arising in refugee

cases made bdeparture from traditional modes of adjudication imperativeQ. Rather than btechnocraticjusticeQ, Hathaway argued, such cases demand bexpert, engaged, activist decision-makers who will

pursue substantive fairnessQ. This mode of decision-making, Bastarache J. reasoned, merited a bhighlevel of [judicial] deferenceQ to decision-makers with relevant expertise and experience. The IRB,

however, did not boast specific expertise and experience in human rights protection such as to merit this

deference, in the view of Bastarache J. Nor did it enjoy responsibility for policy evolution beyond

46Pushpanathan vs. Canada (Minister for Citrizenship and Immigration) [1998] 1 S.C.R. 982, b 2 (Can.).

47Id., at b 2–4.

48Id., at b 2–4. Earlier decisions of the Federal Court of Canada held that there is no need to consider whether a refugee claimant falls

within Article 1A(2) of the Refugee Convention once it is determined that she or he falls within Article 1F of the same. See Ramirez vs. Canada

(Minister of Employment and Immigration) [1992] 2 F.C. 306 (Can. C.A.); Sivakumar vs. Canada (Minister of Employment and Immigration)

[1994] 1 F.C. 433 (Can. C.A.).49

Pushpanathan vs. Canada (Minister for Citizenship and Immigration) [2002] F.C. 867 (F.C., Can.).


bvindicat[ing]. . .a set of relatively static human rightsQ. Far from the sort of bexpert, engaged, activistdecision-makersQ envisaged by Hathaway, the IRB members were—in Bastarache’s depiction—

badministrative decision-maker[s]Q enjoying mere bfactual expertiseQ.50

If the IRB’s experience did not vest it with bany added insight into the meaning or desirable future

development of [Article 1F(c) of the Refugee Convention]Q, then by implication, this broad-ranging,

corrective insight was to be afforded by Bastarache J. and his colleagues on the Supreme Court.

International refugee law, in their hands, was to rectify the prejudicial short-sightedness of the IRB’s

badministrative decision-mak[ing]Q. bWe must not view refugee claimants as opponents or threatsQ,Bastarache J. cautioned, quoting Hathaway, bbut rather as persons seeking to invoke a right derived frominternational lawQ.51

In meting out this salve, Bastarache J. presumed at the outset that Mr. Pushpanathan was needy of,

and entitled to, protection under the Refugee Convention in view of its boverarching and clear human

rights object and purposeQ. Against this background, Bastarache J. sought to determine whether the

bdrastic exceptionQ created by Article 1F(c) of the Refugee Convention was applicable to Mr.

Pushpanathan’s case. The invocation of such a bdrastic exceptionQ could only be justified, Bastarache J.

reasoned, when the exclusion of a particular individual would further the rights-protecting objectives of

the Refugee Convention. Only when an individual was found to have committed acts amounting to basufficiently serious and sustained violation of fundamental human rightsQ should that individual be

bdeprived of the essential protections contained in the [Refugee] ConventionQ.52

Bastarache J. conceded, in the course of this decision, that binternational trafficking in drugs is an

extremely serious problemQ. Bastarache J. suggested, further, that individuals engaging in such activities

might present a threat to Canadian society. Nevertheless, other provisions of the Refugee Convention

permitted the btaking [of] appropriate measures to ensure the safety of CanadiansQ, Bastarache J.

reasoned. Article 33(2) of the Refugee Convention, for example, would prevent a refugee from invoking

the Convention’s prohibition upon expulsion or refoulement if bthere are reasonable grounds for

regarding [the refugee] as a danger to the security of the country [of refuge]Q. Accordingly, Canadians’safety did not depend upon the capacity to preclude all individuals who bpresent a threat to Canadian

societyQ from enjoying refugee status. Canada could, in principle, extend a welcoming hand while

keeping a protective, proscriptive hand in reserve.53

Bastarache J.’s version of bexpert, engaged, activist decision-mak[ing]. . .[in] pursu[it] [of] substantivefairnessQ thus depended upon at least four steps: (1) the presumption of Mr. Pushpanathan’s international

legal entitlement by virtue of his claim of refugee status; (2) the reading of the Refugee Convention’s

definitional clauses without apparent regard to the security of the country of refuge or the safety of its

community, except to the extent that a threat to security or safety is perceived as bpersecution [of the

kind] which creates refugeesQ; (3) the singular focus on human rights treaties as exhaustively descriptive,

in the negative, of bpersecution [of the kind] which creates refugeesQ; and (4) the clawing back, by

recourse to Article 33(2) of the Refugee Convention, of broad capacity to bensure the safety of

CanadiansQ without that clawback being perceived as undermining the charitable, protective stance

assumed in relation to the definition of brefugeesQ.

50Pushpanathan vs. Canada (Minister for Citizenship and Immigration) [1998] 1 S.C.R. 982, b 41 (Can.).

51Id., at bb 41, 47.

52Id., at bb 57, 65, 74, 75.

53Id., at bb 8, 58, 75.


In these four steps, Bastarache J.’s judgment effected a deft double move—a gesture of munificent

enclosure and a gesture of mistrust. Mr. Pushpanathan’s wandering from his bnativeQ Sri Lanka throughIndia, France and Italy to Canada was explained and justified (and thus rationally bcorrectedQ) by

reference to the concepts of involuntariness and persecution. So too was Canada’s record cleansed as

regards its disavowal of persecution, its adherence to boverarching and clear human rights object[s] and

purpose[s]Q, and its openness and adaptiveness to bthe changing international contextQ viewed through

the lens of those bobject[s] and purpose[s]Q. At the same time, however, Mr. Pushpanathan’s intimated

association with danger was retained, and the capacity of Canadian authorities to bdeal with-

. . .individuals who present a threat to Canadian societyQ was affirmed. The peripatetic Mr. Pushpanathan

was taken within the benevolent embrace of the Canadian nation (enjoying protection under Article 1 of

the Refugee Convention). At the same time, he was marked for attention as a potential threat to that

nation (at risk of expulsion—and, indeed, ultimately expelled—under Article 33(2) of the same).54

The sense of threat that shadowed the majority opinion loomed even larger and more ominously in the

dissenting judgment of Cory and Major J.J., delivered by the former. Cory J. went to considerable

lengths to elevate Mr. Pushpanathan from the grimy, mundane arena of day-to-day narcotics peddling to

the grandiose realm of international crime, cutting to the very heart of bworld orderQ. Mr. Pushpanathan’s

drug trafficking should, Cory J. argued, be brecognized, both legally and practically, as an activity that

not only is a domestic criminal offence, but occasions very serious and significant harm in the

international communityQ. As well as bincreas[ing] the rate of criminality generallyQ and exacting

bsignificant, if not staggeringQ social and economic costs within Canada, illicit drug trafficking was

associated by Cory J. with devastating worldwide impacts on health, education, the environment, law

enforcement, political and economic stability and bworld orderQ. The actions in which Mr. Pushpanathan

engaged were, Cory J. maintained, matters of bgrave concern [to] the international communityQ. Theirperilousness was compounded, in Cory J.’s description, by blinks between organized crime, terrorist

organizations, arms dealing and drug traffickingQ. bDrug traffickingQ, Cory J. held, baffects the

sovereignty of some states, the right of self-determination and democratic government, economic, social

and political stability and the enjoyment of human rightsQ. Mr. Pushpanathan had, it seemed, come a long

way from selling bbrown heroinQ to undercover law enforcement officers on the street; he had ascended

from street level to the level of an international pariah. That which merited 8 years in prison under

Canadian criminal law warranted indefinite exile under international refugee law: bThere is no reasonQ,Cory J. concluded, bwhy Canadians should be burdened with his continued presenceQ.55

As in Khawar, the asylum-seeker in the Pushpanathan case was weighted with danger in the Court’s

reading—the bdanger of persecution upon refoulementQ was compounded, in Mr. Pushpanathan’s case,

by the danger of criminality. In both instances, the asylum-seeker was expected to be able to shed this

danger upon the grant of asylum, whereupon its weight would slide off the protective carapace of the

nation state.56 Only where the applicant threatened to puncture that carapace, reasoned Bastarache J.,

should the largesse of nationality be suspended. Where the weight of particularity might not be so

dispersed the asylum-seeker became, according to Cory J., a bburdenQ threatening to anchor the nation inthe undecided instant of open-armed closure—poised between being and becoming. This was an instant

in which neither the majority nor the minority in Pushpanathan were willing to linger.

54Id., at bb 57, 62, 75.

55Id., at bb 3, 87, 89, 91, 105, 106, 138, 154.

56Id., at b 73.


3.3. Sale vs. Haitian Centers Council

Once an asylum-seeker is accepted into the allegedly restorative embrace of brefugeeQ status

under the Refugee Convention, as was the case in both Khawar and Pushpanathan, certain legal

entitlements are deemed to attach under that Convention. Among the most important of these (as

mentioned above) is that of protection against refoulement by a State of refuge that is a party to

the Refugee Convention.57 In 1993, in Sale vs. Haitian Centers Council,58 the U.S. Supreme Court

considered the scope of the obligation of non-refoulement under Article 33(1) of the Refugee

Convention and its U.S. law correlate: Section 243(h) of the Immigration and Nationality Act of 1952

(the bINAQ).59

In Sale, the U.S. Supreme Court heard an appeal from a decision of the U.S. Court of Appeals for

the Second Circuit that a 1992 Executive Order providing for the interdiction of undocumented aliens

fleeing Haiti for the U.S. was contrary to section 243(h) of the INA. Also, the U.S. Supreme Court

reviewed the Court of Appeals’ ancillary conclusion that Article 33(1) of the Refugee Convention was

binding upon States Parties (including the U.S.) with respect to all refugees, regardless of location.

The Executive Order in question in Sale directed the U.S. Coast Guard to benforce the suspension of

the entry of undocumented aliens by seaQ by intercepting vessels transporting undocumented aliens and

returning them to their point of origin. Such action was to be taken without any provision for the interim

lodging or consideration of petitions for asylum under the Refugee Convention, except that the Attorney

General retained, bin his unreviewable discretionQ, power to decide that ba person who is a refugee will

not be returned without his consentQ.60 A press release issued contemporaneously with this Executive

Order’s promulgation advised Haitians fearing persecution to avail themselves of the refugee processing

service at the U.S. Embassy in Port-au-Prince.61

In a judgment delivered by Stevens J., a majority of the U.S. Supreme Court upheld the validity of this

Executive Order and affirmed the lawfulness of actions taken pursuant thereto by the U.S. Coast Guard,

with Blackmun J. dissenting. The majority did so on the basis of their ruling that neither section 243(h)

of the INA nor Article 33 of the Refugee Convention applied to action taken on the high seas (i.e.,

beyond the territorial waters of the U.S.). The gathering of bfleeing refugees and [their] return. . .to the

one country from which they had desperately sought to escapeQ might, Stevens J. observed, bviolate thespirit of Article 33Q. Nevertheless, he concluded, ba treaty cannot impose obligations on those who ratify

it through no more than its general humanitarian intentQ. Accordingly, because bthe text of Article 33

cannot reasonably be read to say anything at all about a nation’s actions toward aliens outside its own

territory, it does not prohibit such actionsQ.62

57See supra note 53 and related text.

58Sale vs. Haitian Centers Council, 509 U.S. 155 (1993).

598 U.S.C. § 1253(h) (1988 ed. and Supp. IV) provides that b[t]he Attorney General shall not deport or return any alien (other than an alien

described in section 1251(a)(4)(D) of this title [i.e., where dthere are reasonable grounds for regarding the alien as a danger to the security of the

United StatesT]) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account

of race, religion, nationality, membership in a particular social group, or political opinionQ). As the respondents highlighted in Sale vs. Haitian

Centers Council, a 1980 amendment to this provision had removed from it the words bin the United StatesQ. See ibid at 170–171.60

Executive Order No. 12807, 57 Fed. Reg. 21133 (1992). This Executive Order was signed into effect by President George Bush and left

in place unmodified by President Bill Clinton.61

See generally Sale vs. Haitian Centers Council, supra note 58 at 158–166.62

Id., at 183.


Despite retaining judicial favor, the majority judgment in Sale has been criticized vociferously by

commentators.63 Consistent with the approach outlined above, however, the attention of this article will

not be devoted to the bdamageQ wreaked by the majority in this case.64 Rather, the focus of this article

will be on that component of the decision that has afforded affirmative inspiration for refugee

advocates—namely, the dissenting judgment of Blackmun J.65

In what will, by now, strike the reader as a familiar strategy of abjuring the nonrational, Blackmun J.

began his judgment by depicting his learned colleagues in the majority as having journeyed into a world

beyond the looking glass—a world where rational order had been turned on its head:

63

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Today’s majority. . .decides that the forced repatriation of Haitian refugees is perfectly legal,

because the word breturnQ does not mean return. . .because the opposite of bwithin the United

StatesQ is not outside the United States. . .and because the official charged with controlling

immigration has no role in enforcing an order to control immigration. . .

From the outset, Blackmun J. thus aligned himself with clarity and decisiveness. Into the tumultuous

scene presented in Sale—that of asylum-seekers quite literally at sea in the Atlantic Ocean and the Straits

of Florida, aboard bunseaworthy, overcrowded and unsafeQ vessels—Blackmun J. cast a line of

exactitude.66 It was, moreover, exactitude that was seen to derive from the law itself: bThe terms are

unambiguous. Vulnerable refugees shall not be returned. The language is clear, and the command is

straightforward; that should be the end of the inquiryQ.67

The majority in Sale likewise cast their decision in terms of imperatives (through frequent use of the

mandatory bwe mustQ) and involuntariness: bWe . . . find ourselves [faced with]. . .da painfully common

situation. . .Although the human crisis is compelling, there is no solution to be found in a judicial

remedyTQ.68 In Blackmun J.’s account, however, the majority judgment was very much the outcome of

This case was followed in Hughes Aircraft vs. United States, 29 Fed. Cl. 197 (1993); Cuban Am. Bar Ass’n vs. Christopher, 43 F.3d

11th Cir. 1995). Nevertheless, scholarly legal commentary on the case has been characterized as buniformly criticalQ. See Martin A

, Interpretation of International Agreements by Domestic Courts and the Politics of International Treaty Relations: Reflections on Some

Decisions of the United States Supreme Court 11 Am. U.J. Int’l L. and Pol’y 559, 560 (1996). See, e.g., Joan Fitzpatrick, The

tional Dimension of U.S. Refugee Law 15 Berkeley J. Int’l L. 1, 10 (1997) (arguing that bSale had an immediate negative impact on

s and safety of many Haitian asylum-seekers subjected to refoulement without screening. Further, Sale is an open invitation to other

-weary states to avoid their international obligations through extraterritorial interception or push-backs of seaborne refugees. . .Finally,

mmunicates an attitude of calculated cynicism toward international obligation, which in the long run may prove its most destructive

). See also Detlev F. Vagts, Taking Treaties Less Seriously 92 A.J.I.L. 458, 460 (1998) (b[T]he Supreme Court’s reading of the United

Protocol on the Status of Refugees and the associated portions of our immigration legislation strained the text to free the United States

cept Haitian refugees on the high seas. The Court found support for that conclusion very largely in negotiating history consisting of

nts by the Swiss delegation that, one infers, were trying both to justify Switzerland’s exclusion of Jews fleeing the Holocaust in 1942 and

future exclusions of dmass migrationsTQ).Fitzpatrick, ibid.

Acclaim for Blackmun J.’s dissenting judgment has been articulated by a series of commentators. See, e.g., Keith Highet and George

III and Thomas David Jones, Decision: Sale vs. Haitian Centers Council. 88 A.J.I.L. 114, 125 (1994) (bNo better rebuttal of [the

y’s] statements can be presented than that of the dissenter, Justice BlackmunQ); Maria E. Sartori, The Cuban Migration Dilemma: An

ation of the United States’ Policy of Temporary Protection in Offshore Safe Havens, 15 Geo. Immig. L.J. 319, 340 (characterizing

Blackmun’s dissent as bpowerfulQ); Harold Hongju Koh, Justice Blackmun and the bWorld Out ThereQ 104 Yale L.J. 23, 31 (1994)

ding that the dissent in Sale and other Blackmun opinions bsketch a compelling dcountervisionT of law’s role in an interdependent global

.

Sale vs. Haitian Centers Council, supra note 58 at 164 (at which Justice Stevens notes the Coast Guard’s interception of 127 vessels

g 10,497 undocumented aliens in the first 3 weeks of May 1992 and describes the conditions under which those vessels were traveling).

Id., at 190.

Id., at 187–188 (quoting from Haitian Refugee Center vs. Gracey 809 F.2d 794, 841 (1987)).


active, btorturedQ69 reading: insistence;70 declaration;71 and failure.72 Each of the majority and the

minority thus sought to edge their reading closer to the shore of compulsory rationality; working to

anchor their account to the command of logic, in lieu of any interpretive fiat.

These contending claims to the mandates of logic were bolstered, moreover, by appeal to international

refugee law. The majority maintained: bboth the text and negotiating history of Article 33 [of the

Refugee Convention] affirmatively indicate that it was not intended to have extraterritorial effectQ.73

Blackmun J. responded in equally unqualified terms: b[t]he text of Article 33.1 is clear and. . .itprohibits the Government’s actionsQ; b[l]ike the treaty whose dictates its embodies, § 243(h) of the [INA]

is unambiguousQ.74 Just as international refugee law was invoked in the Khawar and Pushpanathan

cases as a corrective to the indecision and duplicity that was seen to emanate from the person and

predicament of the asylum-seeker, so it was crucial to the argument of Blackmun J. in Sale that

negotiation and irresolution be banished by international refugee law’s ground-clearing intercession: bthefragments of negotiating history upon which the majority relies are not entitled to deferenceQ; b[t]heAttorney General may not decline to follow the command of § 243(h). If she encounters a refugee, she

must not return him to persecutionQ.75 Here the brefugeeQ was branded as such so that—amid the swell,

the spray, and the darkness, aboard an unseaworthy boat—the bcommandQ of international refugee law

might alight upon her shoulder.76

In this sense, it seemed important, in both the majority’s and Blackmun J.’s decisions, that the

members of the Court be seen to have their hands tied in terms of their assessment of the credibility or

merit of the respondents’ claims.77 So too it seemed critical to Blackmun J.’s decision that the

respondents be immobilized, politically and physically, before, during and after their flight. Only in the

face of compulsion and passivity could the respondents’ flight from Haiti and setting out for the U.S. be

accommodated under the Refugee Convention (and, by extension, the INA). In Sale, the Refugee

Convention’s bfear of persecutionQ requirement for qualification as a brefugeeQ was read to signify

persecution more in the nature of irrational victimization than punishment for robust articulation of

controversial views.78 Accordingly, counsel for the respondents, Mr. Harold Koh, described the

experience of his clients as follows:

69

70

71

72

73

74

75

76

77

de Sie78

pursuin

with a

being v

Oxfor

Their boats were destroyed by the Coast Guard. They were taken to Guantanamo, where they were

held behind barbed wire in U.S. captivity for months. And then, when they asked for lawyers,

before they had an asylum hearing, they were forced back onto the boats and returned to

Id., at 191 (bI find [the majority’s] tortured reading unsupported and unnecessaryQ).Id., at 192 (b[T]he majority insists that what has occurred is not, in fact drefoulementT. It reaches this conclusion in a peculiar fashionQ).Id., at 192 (b[T]he majority, without elaboration, declares. . .Q).Id., at 200 (bThe majority fails to point out. . .Q).Id., at 179.

Id., at 192-3, 199.

Id., at 198, 201.

Id., at 178–179, 192–193, 198–199, 201.

On the judicial experience of feeling bound by law, and its ramifications, see Duncan Kennedy, A Critique of Adjudication (Fin

cle), 157–179 (1997).

Refugee Convention, supra note 3, art. 1A(2). The Oxford English Dictionary defines bpersecutionQ as: bThe action of persecuting or

g with enmity and malignity; esp. the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such,

view to the repression or extirpation of itQ. An alternative definition given for the same term is the following: bThe irrational sense of

ictimized by malign forces which features in many forms of mental disorder and is now commonly considered paranoidQ. See 11 The

d English Dictionary 592 (J.A. Simpson and E.S.C. Weiner Eds., 2nd ed., 1989).

79

80

81

Haitian82

hardly

desire t83

84

HaitiT;politica

lacking

safety a85

Milita

Ameri

Geogra

Haiti,

Imagin

1935 (

Haiti

Episod

Unite

Negro


Haiti. . .Mr. Bertrand [, one of these clients,] was driven off the boat with fire hoses. He was

fingerprinted, identified by the Haitian military. . .he was. . .taken from his bed, beaten, his left arm

was fractured, and he fled into hiding.79

How far this reliance upon broad presumptions of necessity and incapacity seems from the bexpert,engaged, activist decision-mak[ing]. . .[in] pursu[it] [of] substantive fairnessQ envisaged by Bastarache J.

in Pushpanathan.80 In Blackmun J.’s account in Sale, the refugee’s only role was to be b[v]ulnerableQand, by implication, to desire bsafety and freedomQ.81 Persistent concerns surrounding the potential

criminality of such persons were, Blackmun J. suggested, bunderstandableQ yet irrelevant to the case at

hand, in which their agency was so diminished.82 These asylum-seekers did not question or argue; they

were, in Blackmun J.’s depiction, compliant, humble and needy:

The refugees attempting to escape from Haiti do not claim a right of admission to this country.

They do not even argue that the Government has no right to intercept their boats. They demand

only that the United States, land of refugees and guardian of freedom, cease forcibly driving them

back to detention, abuse and death.83

Scope for engagement between U.S. bnationalsQ and baliensQ on issues surrounding the case—

questions of violence, distinction and responsibility—was thus restricted in Sale to the relatively narrow

scenario of bprocessingQ at sea of those known to be refugees.84 Historical intersections between the U.S.and Haiti and the contemporary entanglement of these places and peoples were cast into the background,

in both the majority’s account and that of Blackmun J., by the bstraightforwardQ drama of bhuman crisisQand the dramatis personae of guardian and pilgrim.85

The humanitarianism supposedly injected from a bhigherQ place by international refugee law into

the Sale case thus played a crucial role in both the majority’s and Blackmun J.’s decisions. The

Transcript of Oral Argument, Sale vs. Haitian Centers Council, supra note 58, 1993 U.S. TRANS LEXIS 174, at 38 (March 2, 1993).

See supra note 50 and related text.

Sale vs. Haitian Centers Council, supra note 58 at 190 (bVulnerable refugees shall not be returnedQ) and at 166–167 (the respondent

asylum-seekers were characterized as bin search of safety and freedomQ).Id., at 193–194 (bThe signatories’ understandable decision to allow nations to deport criminal aliens who have entered their territory

suggests an intent to permit the apprehension and return of noncriminal aliens who have not entered their territory, and who may have no

o enter itQ).Id., at 208.

Id., at 166–167 (b[The respondents] alleged that the September 1991 coup had dtriggered a continuing widely publicized reign of terror inthat over 1,500 Haitians were believed to dhave been killed or subjected to violence and destruction of their property because of their

l beliefs and affiliations; and that thousands of Haitian refugees dhave set out on small boats that are often overloaded, unseaworthy,

basic safety equipment, and operated by inexperienced persons, braving the hazards of a prolonged journey over high seas in search of

nd freedomTQ).Id., at 188, 190. On historical and enduring entanglements between Haiti and the United States, see Mary A. Renda, Taking Haiti:

ry Occupation and the Culture of U.S. Imperialism, 1915–1940 (2001); Leon D. Pamphile, Haitians and African

cans: A Heritage of Tragedy and Hope (2001); John Lowney, Haiti and Black Transnationalism: Remapping the Migrant

phy of Home to Harlem 34(3) African American Review 413 (2000); Charles T. Williamson, The U.S. Naval Mission to

1959–1963 (1999); J. Michael Dash, Haiti and the United States: National Stereotypes and the Literary

ation (2nd ed., 1997); Magdaline W. Shannon, Jean Price-Mars, the Haitian Elite and the American Occupation, 1915–

1996); Tim Matthewson, Jefferson and Haiti, 61(2) The Journal of Southern History 209 (1995); Brenda Gayle Plummer,

and the United States: The Psychological Moment (1992); James D. Lockett, Abraham Lincoln and Colonization: An

e That Ends in Tragedy at L’Ile a Vache, Haiti, 1863–1864 21(4) Journal of Black Studies 428 (1991); Hans Schmidt, The

d States’ Occupation of Haiti, 1915–1934 (1971); George W. Brown, Haiti and the United States 8(2) The Journal of

History 134 (1923).

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https://www.researchgate.net/publication/269583396_The_United_States_Occupation_of_Haiti_1915-1934?el=1_x_8&enrichId=rgreq-c43cb6fae3d11677b4bb4960af06cdf9-XXX&enrichSource=Y292ZXJQYWdlOzgxNjYyMjI7QVM6OTkxMzM5MTg1NDc5ODJAMTQwMDY0Njc3NjcwMw==

https://www.researchgate.net/publication/274058248_Haiti_and_the_United_States_National_Stereotypes_and_the_Literary_Imagination?el=1_x_8&enrichId=rgreq-c43cb6fae3d11677b4bb4960af06cdf9-XXX&enrichSource=Y292ZXJQYWdlOzgxNjYyMjI7QVM6OTkxMzM5MTg1NDc5ODJAMTQwMDY0Njc3NjcwMw==

https://www.researchgate.net/publication/274058248_Haiti_and_the_United_States_National_Stereotypes_and_the_Literary_Imagination?el=1_x_8&enrichId=rgreq-c43cb6fae3d11677b4bb4960af06cdf9-XXX&enrichSource=Y292ZXJQYWdlOzgxNjYyMjI7QVM6OTkxMzM5MTg1NDc5ODJAMTQwMDY0Njc3NjcwMw==

https://www.researchgate.net/publication/249211844_Haiti_and_the_United_States_The_Psychological_Moment?el=1_x_8&enrichId=rgreq-c43cb6fae3d11677b4bb4960af06cdf9-XXX&enrichSource=Y292ZXJQYWdlOzgxNjYyMjI7QVM6OTkxMzM5MTg1NDc5ODJAMTQwMDY0Njc3NjcwMw==

https://www.researchgate.net/publication/249211844_Haiti_and_the_United_States_The_Psychological_Moment?el=1_x_8&enrichId=rgreq-c43cb6fae3d11677b4bb4960af06cdf9-XXX&enrichSource=Y292ZXJQYWdlOzgxNjYyMjI7QVM6OTkxMzM5MTg1NDc5ODJAMTQwMDY0Njc3NjcwMw==


bhigher purpose of . . . the [Refugee Convention]Q and the bmoral weightQ that it brought to bear

were, the majority insisted, forces by which they bmust, of course, be guidedQ.86 That same

instrument that was the site of difficult negotiations and intricate distinctions in Khawar and

Pushpanathan was suddenly placed on a bhigherQ plane. It was, in Blackmun J.’s words, bthebackdropQ.87 There it could at once be venerated, carry authoritative force and yet be kept clear (thus

helping to keep the U.S. Supreme Court clear) of the messiness of governmental policy-making: of

bha[ving] to chooseQ.88

Whereas refugee advocates have tended to read the majority judgment in Sale as lacking in

internationalist humanitarianism, they might rather have cause to entertain doubts about the human-

itarian posture that Blackmun J. would have them adopt. International refugee law’s humanitarianism, in

the mode of Blackmun J.’s decision in Sale, entails in part the disabling of its target. Through the

combination of the hobbled half-human and the aspiring humanitarian, a sense of consummate humanity

is to be achieved. The asylum-seeker, rendered deficient through de-territorialization and wanting

through persecution, is to complete the self-sufficiency—the knowing virtue—of those who come to her

aid, whether that be a refuge nation or an advocate bheroQ operating under the rubric of international

refugee law.89 Yet this bcureQ itself is problematic to the extent that it is contingent upon the mandatory

repetition, on the part of the asylum-seeker, of often harrowing experiences of loss and recovery; of

lacking and being completed; of persecution and shelter.

4. Resistance to cure

Judicial treatments of each of the Haitian boat peoples’, Mr. Pushpanathan’s and Ms. Khawar’s

pleas for asylum might thus be interpolated by reference to disciplinary anxiety afflicting

international refugee law. More robustly, by way of interpellation, the deviant status that each such

applicant is required to assume in these cases might be read as an instance of international refugee

law (re)instantiating the persecution from which it purports to liberate refugees, thereby making

possible its own disciplinary heroism. Yet there seems, in turn, something predictable about such a

charge.

86Sale vs. Haitian Centers Council, supra note 58 at 179, 187.

87Id., at 189. The shifts of scale and dimension evidenced by the differing roles played, and effects produced by, international refugee law

in these cases comprise, as Annelise Riles has observed, part of ba fundamental, if unremarked, aspect of the disciplinary projectQ of

international law. Writing of the international legal project of the colonial era, Riles remarks: b[F]or the international lawyer, to be situated

daboveT, and to loom larger than local events was also to view the world below and to understand his view as a unique, particular vantage point.

The unique aspect of this global perspective that made the world a subject of viewing, however, was precisely the fact that it was a perspective

from no point in particular. One finds in these debates a hope for world order through reason effectuated in this detached view from aboveQ[footnote omitted]. See Annelise Riles, The View from the International Plane: Perspective and Scale in the Architecture of Colonial

International Law 5 Law and Critique 39, 40, 48 (1995).88

Sale vs. Haitian Centers Council, supra note 58 at 164–165 (b[T]he Government could no longer both protect our borders and offer the

Haitians an even modified screening process. It had to choose. . .The wisdom of the policy choices made by Presidents Reagan, Bush, and

Clinton is not a matter for our considerationQ).89

As historian Karen Haltunnen’s work has shown, bhumanitarianismQ as we know it draws from a bcult of sensibility [that] took for its

hero the dman of feelingT whose tender-hearted susceptibility to the torments of others was the mark of his deeply virtuous natureQ. See Karen

Haltunnen, Humanitarianism and the Pornography of Pain in Anglo-American Culture 100(2) American Historical Review 303, 303

(1995).


Just as the Haitians’ disablement seemed crucial to Blackmun J.’s acceptance of their claims, so it

seems to have been vital to the ongoing bdevelopmentQ of international law (including international

refugee law) that allegations of disciplinary bondage along these lines continue to be made. If only

(so it is repeatedly written) contemporary international refugee law might be released from the

strictures of the 20th century imagination, its promise—of both concordance with, and freedom from,

contemporary reality—might be realized. So international refugee law texts continue to be written;

professionals continue to be recruited to the field; and so on and so forth. The refugee wronged by

international refugee law might be less the discipline’s nemesis than its raison d’etre (or rather its

raison de devenir).90

The bias interpolated by the foregoing section, however, might provoke a variety of responses other

than diagnostic, therapeutic ones oriented towards international refugee law’s progressive correction.

The observation that international refugee law texts pathologise those whom they purport to heal need

not necessarily trigger an insistence upon those texts being cured of such predilection. Do the foregoing

accounts not corrode certainty about the rectitude of these corrective endeavors as well? Consider, for

example, the possible ramifications of reading the Khawar case as a text exacerbating and legitimizing,

rather than remedying, Ms. Khawar’s bexperiences of neglect, indifference and inactionQ.91 The

preceding section suggested that the High Court’s judgment could be read in such terms, in so far as it

affirmed a sense that Ms. Khawar’s uprootedness was ill-befitting to the healthy, harmonious wholes of

nationhood—whether Pakistani or Australian—and as such required immediate resolution. Does the

voicing of doubts along these lines necessarily play into neo-conservative hands—the very hands with

which Ms. Khawar had to wrestle to be allowed to stay in Australia in the first place? What is the

strategic cost of raising such doubts about the rightness of international refugee law as against curtailing

or avoiding them? These questions remain alive and, it seems to me, difficult to answer in any abstract or

enduring sense. Moreover, they may be beside the point to the extent that pungent uncertainties already

inhabit many international refugee lawyers’ protestations of faith.92 Where, precisely, does the heresy

begin?

One remedial response to such a reading might be to posit Ms. Khawar’s, Mr. Pushpanathan’s

and the Haitians’ expression of knotty, undecided, divided allegiance as an experience much

closer to the norm than that of stable, uncontested nationality—to displace a nationalized

90Cf. David Kennedy, When Renewal Repeats: Thinking Against the Box, 32 N.Y.U. J. Int’l L. and Pol. 2 (2000); David Kennedy, A

New World Order: Yesterday, Today and Tomorrow, 4 Transnat’l L. and Contemp. Probs. 330 (1995).91

Minister for Immigration and Multicultural Affairs vs. Khawar 187 A.L.R. 574, 598 (2002).92

See, e.g., James A. R. Nafziger, The General Admission of Aliens Under International Law 77 A.J.I.L. 804, 805 (1983):

(observing that bthe state practice of admitting some aliens has not succeeded in dispelling widespread uncertainty about standards of

international solidarity, mutual aid or cooperation, and burden sharingQ in international law). See also T. David Parish, Note,

Membership in a Particular Social Group Under the Refugee Act of 1980: Social Identity and the Legal Concept of the Refugee, 92

Colum. L. Rev. 923, 926–927 (1992) (discussing the bseemingly intentional ambiguityQ of the definition of brefugeeQ under the

Refugee Convention and noting that bno authoritative source has articulated concrete standards for identifying social groups under the

[1967] Protocol [to the Refugee Convention]Q.) It is interesting to note, in this regard, that scholarship in international refugee law

tends to identify uncertainty with suffering. See, e.g., Davor Sopf, Temporary Protection in Europe After 1990: The bRight to RemainQof Genuine Convention Refugees 6 Wash. U. J.L. and Pol’y 109, 151 (2001); Joan Fitzpatrick, Temporary Protection of Refugees:

Elements of a Formalized Regime 94 A.J.I.L. 279, 302 (2000). Cf. Kennedy, supra note 77, at 337 (discussing the argument that bifdweT lose our faith in rights, we will be disarmed in dealing with our opponentsQ and observing that b[i]f you have already lost your

faith in rights, the argument has the sound of that in favor of religious faith for the masses, no matter how delusive, on the ground of

its beneficial consequencesQ).


normality in favor of a denationalized, depolarized one.93 Certain provisions of the Refugee

Convention seem to incline in this direction, towards the recognition of multiple allegiances. Consider

Article 12(2):

93

(2003)

denatio

Future

princip

project

Citizen

locate

that gr

celebra94

95

bhuma96

the log

transla

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Bose.

Basic

(1967)

Rights previously acquired by a refugee and dependent on personal status, more particularly

rights attaching to marriage, shall be respected by a Contracting State, subject to compliance,

if this be necessary, with the formalities required by the law of that State, provided that the

right in question is one which would have been recognized by the law of that State had he

not become a refugee.

Such a response, however, tends to affirm the imperative of a curative impulse. If only we could just

get the law to match the multivalence of lived experience, if only we could get the law to be more

humanitarian, post-national, or open-ended (or something or rather), then all would be well. A priority is

again placed, by such responses, on virtue, wellness and certainty (albeit a more multicultural version

thereof) such that those who do not attest to such qualities are made to appear suboptimal and requiring

of expert intervention. Decentered pluralism may offer a better way of thinking about jurisdictional

connections than centered monism (I happen to think that in many cases it does).94 Yet it does not

necessarily follow that international refugee law may and should be put right through its internalization

thereof. Indeed, the very project of international refugee law seeking progressively to help, to heal, or to

bput rightQ might be part of the problem.95

Another possible response would be to relax the expectation that international refugee law

should be capable of cure or otherwise in the right, whether descriptively or programmatically, any

more than it will always prove inept or in the wrong. In other words, one might try recurrently to

challenge one’s fidelity to the priority of any normality: national, international or otherwise. Such a

response would, for example, indulge one’s straddling of the following two contrapuntal ideas—

ideas which the author of this article happens to hold.96 First, it was laudable under the circumstances

that Ms. Khawar and Mr. Pushpanathan were able to pursue their claims to asylum through the courts

under the rubric of international refugee law (and its Australian and Canadian law incarnations). The

See, e.g., Saskia Sassen, The Participation of States and Citizens in Global Governance, 10(1) Ind. J. Global Legal Stud. 5, 7

(bMy particular argument is that we are seeing the incipient formation of a type of authority and state practice that entails a partial

nalizing of what historically has been constructed as nationalQ). Cf. Kim Rubenstein and Daniel Adler, International Citizenship: The

of Nationality in a Globalized World 7 Indiana J. Global Leg. Stud. 519, 530–546 (2000) (tracking alterations in the legal

les of nationality signalling, the authors contend, bthe continued growth of citizenship as a flexible conceptQ and a bprogressiveQ and, commensurately, the bmore flexible. . .[legal] use of nationalityQ). See generally Linda Bosniak, Denationationalized

ship 7 Indiana J. Global Leg. Stud. 447 (2000) (surveying and assessing brecent efforts in political and social thought to

citizenship beyond the nation-stateQ, contending that the claim of increasing denationalization is ban aspirational claimQ and arguing

eater attention should be devoted to the question bwhether citizenship’s denationalization ought, indeed, to be fostered and

tedQ).Cf. Gerald Frug, Decentering Decentralization, 60 U. Chi. L. Rev. 253 (1993).

Contra Catherine Dauvergne, The Dilemma of Rights Discourses for Refugees 23(3) U.N.S.W.L.J. 56, 58 (2000) (arguing that

nitarianism is a superior, if impoverished, strategic choice for refugees and their advocatesQ in relation to the discourse of rights).

Such a response derives its tempo more from the irregular cadence of memory, intuition, writing and tactical manoeuvre than from

ic of consistency, progress or cure. On btempoQ, see Friedrich Nietzsche, Die Frfhliche Wissenschaft (2nd ed., 1887),

ted as The Gay Science: with a Prelude in German Rhymes and an Appendix of Songs, 36 (Bernard Williams Ed.,

e Nauckhoff and Adrian Del Caro, trans., Cambridge University Press, 2001) (1887); Friedrich Nietzsche, Jenseits von Gut und

Vorspiel einer Philosophie der Zukunft (1886), translated as Beyond Good and Evil: Prelude to a Philosophy of the Future, in

Writings of Nietzsche, 179–435, 229–231, 306, 372–374, 386–388, 401 (Walter Kaufmann trans., Random House, 2000)

.

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courts’ entertainment of their claims should be supported and, to the extent possible, expanded upon in

each of these jurisdictions. Second, those who work in, with and through contemporary international

refugee law serve, nonetheless, as rhetorical vehicles for the popularization of humanist fantasies of

redemption, with divergent and sometimes adverse implications that merit circumspection. One may

heed the calling to critique—to trouble international refugee law’s humanist righteousness and the

compromised, clement subjectivities that it engenders—irrespective of the former sentiment, or because

of it.

5. Conclusion

International refugee law works at once to engender and eliminate (or at least temper) the

pejorative association of refugees with deviance, or so this article has argued. Those who would be

embraced by the Refugee Convention must announce themselves as aberrations and work to shed

that designation thereafter. Such was the predicament confronted by the applicants for asylum in

the Khawar, Pushpanathan and Sale cases discussed above. One might be inclined to counter this

bias—like other attested instances of immoderation—in a therapeutic mode, having internalized the

notion that international refugee law’s primary role is a corrective one, including in relation to its

own ills. Yet this very mode, this article has suggested, merits our vigilance. Those who would

cure tend to designate a discrete (manageable) domain of ills in which to profess and practice their

curative (managerial) expertise. So too, international refugee lawyers, assuming the role of a curer,

work to pathologise and isolate the very refugees that they (we) would aid under the rubric of

saving them.

This article has sought to break with the habit of international refugee law texts to attribute

dissonance and uncertainty to asylum-seekers and decisive authority (discriminatory or redemptive)

to nations and nationals, all cast as properties to be expunged through the intercession of

international legal expertise. This article has instead sought to trouble classifications of normality

and abnormality along these lines, and to wreak some small havoc among those whose powers of

diagnosis, domination and detention rely upon such categories. Asylum-seekers’ allegiances were

characterized in the international refugee law texts read above as intolerably unresolved—their

journeying as some dangerous form of madness. Yet, this article contends, these texts likewise

exhibit irresolution and multiplicity. Their indecision seems all the more frenzied for their

insistence to the contrary; these texts’ haste to do and to know; their eagerness to complete and

correct. In the harried ambivalence of international refugee law’s curative impulses, we catch a

glimpse of that law’s own madness: vital and devastating; forever in flight from itself; seeking

refuge in reason.

Acknowledgments

Thanks to Dr. Mary Crock, Professor James Hathaway and Ms. Kim Rubenstein for helpful comments

on earlier drafts of this article. Thanks are also due to Damien Freeman for exemplary research assistance

and to the Faculty of Law at the University of Sydney for a Legal Scholarship Support Fund grant in

support of the research for this article.

migration, mental health, and human rights

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