Volume: 48

Adapted from keynote remarks delivered at the Columbia Society of International Law Faculty Honors Award Reception at Columbia Law School, on April 20, 2016.

States all over the world are enacting new laws that criminalize insults, and using existing insult laws with renewed vigour. In this article, we examine state practice, treaty provisions, and case law on insulting speech. We conclude that insulting speech is currently insufficiently protected under international law and regulated by confused case law and commentary. We explain that the three principal international treaties that regulate speech provide conflicting guidance on the right to insult in international law, and the treaty provisions have been interpreted in inconsistent ways by international courts and United Nations bodies. We conclude by recommending that international law should recognize a “right to insult” and, drawing on US practice under the First Amendment, we propose eight recommendations to guide consideration of insulting speech in international law. These recommendations would promote coherence in international legal standards and offer greater protection to freedom of speech.

The localization of human rights is still a relatively new phenomenon. Now, however, as we approach the twentieth anniversary of the first human rights city, the time is ripe to take stock of the progress and potential. This volume of essays, edited by Barbara Oomen, Martha F. Davis, and Michele Grigolo, brings together an international and interdisciplinary collection of authors to assess the state of human rights vis-a-vis the city. Through a mix of case studies and thematic essays on the localization of human rights on several continents, this volume provides a window into how human rights are playing out on the ground in local communities. In this Review, I draw on these case studies to consider whether cities are effective sites to enhance the relevance of human rights. In particular, I examine whether efforts to name, claim, and implement rights at the city level can enhance accountability, make human rights relevant and real, and fill the gap left as the power of nation-states wanes. In so doing, I offer a preliminary assessment not only of the state of city level engagement with human rights, but also of broader efforts to make human rights a reality more generally.

This Article argues the Supreme Court’s recognition of differences between youth and adults that make youth less culpable, more vulnerable to harm, and more prone to growth and rehabilitation can reinvigorate due process challenges to the exclusion and transfer of youth from the juvenile justice system to the adult criminal justice system and support the establishment of a substantive right to juvenile treatment for youth in conflict with the law. Although this right has yet to be recognized in the U.S., a substantive right to juvenile treatment is supported by international law and legal systems around the world.

The current refugee crisis demands novel legal solutions, and new ways of summing the political will to implement them. As a matter of national incentives, the goal must be to design mechanisms that discourage countries of origin from creating refugees, and encourage host countries to welcome them. One way to achieve this would be to recognize that persecuted refugee groups have a financial claim against their countries of origin, and that this claim can be traded to host nations in exchange for acceptance. Modifications to the international apparatus would be necessary, but the basic legal elements of this proposal already exist. In short, international law can and should give refugees a legal asset, give host nations incentives to accept them, and give oppressive countries of origin the bill.

Pursuant to our obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The “on account of” prong of the asylum determination is referred to as the nexus requirement. The paradigmatic asylum case features a man fleeing a dictatorial regime that has persecuted or would persecute him on account of his political dissidence or ethnicity. Absent credibility concerns, these cases are routinely granted, and immigration judges do not question whether the nexus requirement has been met.

In other cases, however, for example cases in which a woman is fleeing gender-based violence such as domestic violence, trafficking, or forced marriage, or cases in which a young man is fleeing retribution because he refused recruitment to a gang, the immigration agency has frequently denied relief. Often, even if the applicant has shown that she or he is a member of a cognizable particular social group or has another protected trait, immigration judges have held that the nexus requirement has not been met. Judges have reasoned that “personal” or “criminal” reasons motivated the persecution, as opposed to the protected ground. In the domestic violence context, for example, immigration judges have held that the abuse occurred because the abuser was a “despicable person” or due to his “inherent meanness,” rather than on account of the victim’s gender or social group. Similarly, in the gang context, immigration judges have held that the persecution occurred due to generalized violence or the gang members’ desire for increased power, as opposed to the victim’s gender or social group.

Yet, in the paradigmatic asylum case, immigration judges have not stopped to ask whether the dictator was a “despicable person” or in pursuit of more power. They have implicitly recognized that although these things may of course be true, it is also clear that the persecution occurred due to the victim’s political opinion or ethnicity.

This article attempts to explain that discrepancy. I argue that, unlike the paradigmatic asylum case, where the persecutor’s motives are overt and well-documented, some gender-based cases and cases based on gang violence feature “silent motives.” In cases involving silent motives, it falls upon the immigration judge to fill in the nexus gap left by this silence. Accordingly, unlike in the paradigmatic asylum case, the nexus determination in such cases is susceptible to influence from the immigration judge’s biases.

This article uses theories from cognitive science to posit that when immigration judges analyze silent motives cases, they use heuristics and other mental shortcuts, which often work against finding nexus on account of a protected ground. In two prior articles—The New Nexus and Nexus Redux—I proposed a new standard for evaluating nexus in asylum cases. This article explains why such a standard is necessary.