Parrhēsia and Credibility: The Sovereign of Refugee Status Determination
| Date | 01 December 2009 |
| Author | Gregor Noll,Jennifer Beard |
| Published date | 01 December 2009 |
| DOI | 10.1177/0964663909345094 |
| Subject Matter | Articles |
PARRHE¯SIA AND CREDIBILITY:
THE SOVEREIGN OF REFUGEE
STATUS DETERMINATION
JENNIFER BEARD AND GREGOR NOLL
University of Melbourne, Australia, and Lund University, Sweden
ABSTRACT
This article is concerned with the correlation between credibility and the concept of
sovereignty in international law and their relationship to truth. Empirically, the
authors focus on the credibility assessment informing the refugee determination
procedure operated by the Office of the UN High Commissioner for Refugees. The
authors do not provide a rationalized explanation of credibility assessment in terms
of a legal procedure turning on probative models of evidence. Instead, the authors
attempt to draw out a concurrent phenomenon of credibility assessment, which tests
the truth of what it means to be human. This is a political question that requires a
consideration of the tension between personal sovereignty and territorial sovereignty
and the process of political subjectivization that conditions that tension.
KEY WORDS
credibility; international law; parrhe
¯sia; refugee status determination; sovereignty; truth
1. INTRODUCTION
THIS ARTICLE is concerned with the correlation between credibility and
the concept of sovereignty in international law and their relationship to
truth. Empirically, we have chosen to focus on the procedure of refugee
status determination (RSD), which remains bound to produce outcomes
respectful to the obligation of non-refoulement (see Art. 33.1 of the Con-
vention relating to the Status of Refugees, 28 July 1951 [hereinafter 1951
Convention] as modified by the Protocol relating to the Status of Refugees,
31 January 1967). Apart from Council Directive 2005/85/EC of 1 December
SOCIAL &LEGAL STUDIES © The Author(s), 2009
Reprints and Permissions: http://www.sagepub.co.uk/journalsPermissions.nav
0964 6639, Vol. 18(4), 455–477
DOI: 10.1177/0964663909345094
2005, on minimum standards on procedures in Member States for granting
and withdrawing refugee status, and Article 4 of Council Directive 2004/83/
EC of 29 April 2004, on minimum standards for the qualification and status
of third-country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the protection
granted (EU Qualification Directive), which largely replicates the UNHCR
Handbook, there is no body of international legal norms directly and exhaust-
ively regulating RSD (Noll, 2006). Generally, however, RSD procedures do
result in the testing of the applicant’s credibility, whether those procedures
are undertaken by a member state of the 1951 Convention Relating to the
Status of Refugees or the Office of the United Nations High Commissioner
for Refugees (UNHCR) established on 14 December 1950. It is no exagger-
ation to state that credibility may have crucial importance for a refugee’s life
or freedom.
While refugee lawyers and doctrinal writers perceive an over-emphasis on
or abuse of credibility assessment (Popovic, 2005; Vedsted-Hansen, 2005;
Zahle, 2005), refugee law doctrine offers no systematic account of credibil-
ity in asylum adjudication. Likewise, contemporary theorizing of the law of
evidence is interested in reasoning based on probative probabilities rather
than in truth, generally taking standard civil litigation or criminal trials as
models (Redmayne, 2006). We believe that a theoretical investigation of
credibility assessments in asylum adjudication is a necessary supplement to
evidentiary theorizing, and that the relationship between probative reasoning
and credibility (or probability) will become clear, once we fully appreciate the
system of truth production of which credibility assessments form part. We
do not seek to research any possible improvement of credibility assessment
in asylum adjudication, or to relegate such assessment to its ‘proper place’ in
a theory of evidence (Byrne, 2007). Rather, we want to explore credibility
assessment as a phenomenon concurrent with the far-reaching rationalization
of legal procedures, that is, by probative models of evidence. In the present
article, we argue that credibility forms part of a larger body of concurrent
norms governing the ways in which the truth may be embodied and told.
The conundrums of asylum adjudication attain plausibility, once that con-
current body of norms is also explored and understood. In doing so, we also
explore how the administration of credibility assessment gives form and struc-
ture to political spaces such as state sovereignty, and thus silences to various
degrees other forms of political speech.
Here is our hypothesis: RSD is the assessment of the applicant’s conver-
sion from self-possessed truth to the redeeming truth of the nation-state,
whose sovereign possesses governance over her through the juridical rights
attaching to recognition and resettlement. Rather than looking into state
RSD only, which amalgamates different stages of truth production into one,
we shall consider the significance of UNHCR RSD separately. We do so
because UNHCR RSD sheds light on the stage at which the applicant, as we
shall explain, embodies the truth before her metamorphosis into the truth of
the state sovereign. Or, translated into the terminology of refugee law, the
456 SOCIAL & LEGAL STUDIES 18(4)
To continue reading
Request your trial