What and Ethics of Discourse and Recognition Can Contribute to a Critical Theory of Refugee Claim Adjudication: Reclaiming Epistemic Justice for Gender-Based Asylum Cases

Abstract: Using examples drawn from gender-based asylum cases, this chapter examines how far recognition theory (RT) and discourse theory (DT) can guide social criticism of the judicial processing of women’s applications for protection under the Geneva Convention Relating to the Status of Refugees (1951) and subsequent protocols and guidelines put forward by the United Nations High Commissioner for Refugees (UNHCR). I argue that these theories can guide social criticism only when combined with other ethical approaches. In addition to humanitarian and human rights law, these theories must rely upon ideas drawn from distributive, compensatory, and epistemic justice. Drawing from recent literature on epistemic injustice, this chapter shows how DT and RT illuminate the failure of asylum courts to respect the credibility of women’s testimony and understand their trauma. I argue that the institutional privileges accorded to asylum boards and the interpretative frameworks available within immigration law impose a burden of proof on women asylum applicants that they cannot meet. I maintain that this burden of proof is unjust because it violates the implicit discursive procedures of argumentative fairness and, in addition, disrespects women as privileged witnesses to their own criminal victimization. I conclude that this injustice need not reflect an irremediable tension between competing epistemic and hermeneutical standpoints