John Tobin Reflects on Panel 2

by NYU Journal of International Law and Politics

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium


John Tobin is an Associate Professor at Melbourne Law School where he teaches and researches in the area of human rights. In 2011 he was a Senior Scholar in Residence at the NYU Center for Human Rights and Global Justice. His book, The Right to Health in International Law, has just been released by Oxford University Press.


Using human rights in refugee law – The need to proceed with caution

A well-founded fear of being persecuted is a core requirement for a finding of refugee status under the Refugee Convention.[1] Although the Refugee Convention does not define persecution and there is no universally accepted definition,[2] most definitions tend to stress the need for serious harm and link persecution in some way to a violation of human rights.  For example, according to the UNHCR Guidebook a threat to life or freedom or ‘other serious violations of human rights’ would constitute persecution.[3] The EC Council Directive 2004/83/EC provides that acts of persecution must be ‘sufficiently serious by their nature or repetition so as to constitute a severe violation of basic human rights’.[4] And for Hathaway and Pobjoy, who affirm the test originally developed by Hathaway in 1991, and which has been widely cited with approval since, it is ‘necessary to show the “sustained or systemic violation of basic or core human rights entitlements demonstrative of a failure of state protection.”[5]

The theme common to each of these approaches is the idea of a serious or severe violation of a basic or core human right.   Although this idea has become axiomatic within refugee law, it is problematic when viewed from the prism of a human rights jurist.  For example, in human rights law, a violation will occur where there has been a failure of state protection.[6] Thus, it makes no sense to speak of a human rights violation and a failure of state protection.[7] And even if a human rights violation is taken to be demonstrative of a failure of state protection (which is true in human rights discourse), the Refugee Convention speaks of a state’s inability or unwillingness to protect an applicant.  But the inability of a State to protect a human right is not necessarily a violation of a human right.[8] It will depend on the reasonableness of a state’s actions in responding to an interference with a right. So does this mean that the Refugee Convention demands surrogate protection for an applicant in circumstances where the state of origin has not actually violated a human right?   If so, this would mean that refugee status would be possible in the absence of a human rights violation by a state.[9]

But if human rights remain central to an understanding of persecution, what constitutes a serious or severe violation of a human right?  Is not every violation of a human right serious?  And what is a basic, fundamental or core human right?  Are not all human rights recognized in international treaties said to be fundamental and are not all human rights interdependent and indivisible?[10] And to which human rights do the various tests for persecution refer – all those recognized under international treaties and customary international law or only certain kinds of rights? And how is the meaning of each right to be assessed?  Are developments in regional and domestic human rights systems relevant to the interpretation of international human rights and if so to what extent?


A manifestation of the dilemma

A persuasive interpretation of a treaty provision is one that must still pursue what I have called external system coherence, that is, coherence or harmonization, to the extent possible, with the system of international law.[11] This means that the resolution of any ambiguity within the Refugee Convention should be informed by, among other things, an attempt to achieve coherence or harmonization with the provisions of international human rights treaties.  The efforts by Hathaway and Pobjoy to draw on international human rights law to inform the definition of persecution and set limits on the activities to be protected for a GLBTI refugee applicant reflect an awareness of the value of system coherence.

This position contrasts with the way in which members of the UK Supreme Court use international human rights law.  For example, Lord Hope draws attention to the inclusion of the UDHR in the preamble to the Refugee Convention and proclaims that ‘[t]he guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention.’[12] He even relies on the inclusion of the UDHR in the preamble of the Refugee Convention as evidence that ‘[protection against non] discrimination was a fundamental purpose of the Convention’ (emphasis added).[13] He then goes on to affirm the right of a gay man to freedom of association and to freedom of self-expression.

But this foray into human rights standards is brought to an abrupt halt when he proclaims that discrimination against members of a particular social group is not enough to warrant refugee protection.  The logic of this analysis is problematic from a human rights perspective.  In the space of three consecutive paragraphs Lord Hope states that persecution involves a violation of a core entitlement under international law, he then identifies non-discrimination as a fundamental purpose of the Refugee Convention but subsequently declares that discrimination against members of a particular social group is not sufficient to establish refugee status.   But he offers no explanation as to why a violation of a fundamental purpose of the Refugee Convention would not involve a violation of a core entitlement under international law.

A further source of concern stems from his decision to protect a gay applicant, who could avoid physical harm by concealing his sexual orientation, on the basis of what he describes as the fundamental right of gay men ‘to be what they are’ – a right that is not actually expressly enumerated within international human rights law.[14] I want to say something more about this ‘right’ later.  But the point to stress here is that Lord Hope did not engage in any systemic or sophisticated inquiry as to how the meaning of persecution under the Refugee Convention should be informed by international human rights standards.

Lord Roger, with whom Lord Walker and Lord Collins agreed, was also content to ground his understanding of persecution in a right that does expressly exist within international human rights law.   He affirmed the position taken in New Zealand and Australia that ‘refugee status cannot be denied by requiring of the claimant that he or she avoid being persecuted by forfeiting a fundamental human right’ (emphasis added).[15] But rather than examine human rights treaties to identify the actual nature and scope of the right that would be denied, he simply invented his own – ‘the right to live openly without fear of persecution which the Convention exists to protect.’[16]

In contrast, John Dyson SC, was at least conscious of the need to ensure that the Refugee Convention was interpreted in light of the principles in its preamble, which includes the requirement that all human beings, including refugees, should enjoy fundamental rights and freedoms.  Moreover, he took the view that to impose on gay applicants a duty to be discreet “would deny them enjoyment of their fundamental rights and freedoms without discrimination.”[17] But like his brother judges, he too was content to ground a finding of persecution in a right that is (perhaps surprisingly) not actually expressed in human rights treaties, namely ‘the right to dignity, which he said “underpins the protection accorded by the Refugee Convention.”[18]

The haphazard nature of this judicial reasoning is the cause of angst for Hathaway and Pobjoy.  If persecution is to be considered a serious human rights violation, or a violation of a core human right, then there was a need for the members of the Supreme Court to ground their finding of persecution in an internationally recognized human right.   But in which right should persecution be grounded for a GLBTI applicant in circumstances where there is no real risk of any exogenous threat materializing because the applicant will be able to avoid such harm by concealing their sexual orientation?


Grounding persecution in privacy

The New Zealand Refugee Status Appeals Authority (‘RSAA’) in Refugee Appeal No 74665/03, held that a gay man from Iran who would be forced to ‘exist in a state of induced self-oppression’ because of his sexual orientation if returned to Iran, would be denied his right to privacy and thus satisfied the requirement of being persecuted under the Refugee Convention.[19] However, Hathaway and Pobjoy remain deeply skeptical about the legitimacy of using the right to privacy to establish persecution in such circumstances for several reasons.  Their most basic concern is that the right to privacy under article 17 of the ICCPR – which cannot be subject to arbitrary and unlawful interference – may be restricted to a negative non interference right rather than an affirmative right to ‘respect’ for private life as appears under the ECHR.[20] They also echo the concern often raised in cases concerning sexual orientation, that protection for GLBTI persons on the basis of their right to privacy only serves to confine their sexual orientation to private spaces.[21]

But this approach tends to overlook four considerations. First, article 17 of the ICCPR must be read in conjunction with article 2 of the ICCPR which provides that a State party undertakes to ‘respect and to ensure’ the rights under the Covenant without discrimination.[22] Thus, there is a positive obligation on States to take reasonable measures to ensure the effective protection of the right to privacy.[23] Second, the protection against arbitrary and unlawful interferences with the right to privacy demands that any measures to restrict this right must be reasonable.  In summary, this requires a State to establish on the basis of objective evidence that any interference with the right to privacy is for a legitimate aim and the measures used to achieve this aim are proportionate.[24] Third, implicit in the critique of the right to privacy by Hathaway and Pobjoy is an assumption that the scope of this right is confined to activities undertaken in private spaces.[25] This assumption is mistaken.

Although space does not permit a detailed examination of the scope of the right to privacy, it is important to stress that this right is not confined to the protection of activities that occur within the confines of a person’s home (the physical private sphere).  It extends to protection against arbitrary and unlawful interference in relation to all those activities that are within the personal autonomy of an individual, including sexual relationships, whether they occur in public or private and ‘covers the physical, moral and psychological integrity of a person… [and] can sometimes embrace aspects of an individual’s physical and social identify.’[26] It is for this reason that the right to privacy has been said to constitute a right to individual self determination.[27] Although this may be stretching the scope of the right too far, the European Court of Human Rights has certainly endorsed the idea that ‘the notion of personal autonomy is an important principle’ underlying this right.[28] This contrasts with the literature on sexual orientation and human rights, which has tended to conceive of the right to privacy as a private space hidden away from the public glare when in fact personal behavior within public spaces, such as a display of affection, is well within the scope of the right to privacy.  It is therefore premature to suggest, as Hathaway and Pobjoy do, that reliance on a violation of the right to privacy to establish persecution in cases where GLBTI applicants conceal their identify, ‘hangs by a thin thread.’[29]

It is at this point in the analysis that the flirtation of the UK Supreme Court with human rights discourse also becomes relevant. All members of the Court were determined to extend protection for GLBTI applicants beyond activities that occur within the private physical sphere.  They variously appealed to a ‘right to be who you are’, a ‘right to live life freely without persecution’ and a ‘right to dignity’ to justify their decision that being forced to conceal one’s sexual orientation to avoid exogenous harm was still persecution.  But they did not make the connection between the values that underlie these ideas and the scope of the right to privacy with its emphasis on personal autonomy.

From a moral perspective the exhortations of the judges are quite defensible. Indeed, the rights to which they referred are all underpinned by ideas about autonomy, dignity and freedom and echo much of literature on the philosophical justification for human rights.[30] But judges must also be cognizant of the legal regime within which they decide cases and it would have been preferable for the members of the UK Supreme Court to justify their decision on the basis of recognized international human rights rather than an ‘autonomous style’ of reasoning that led to their own rights creations.[31] The right to privacy is one such internationally recognized right that they failed to consider despite the fact that its normative content, with its emphasis on personal autonomy, is consistent with the very concerns that informed their decision.


1 Refugee Convention.
2 UNHCR Guidebook 1951 ¶ 51.
3 Ibid
4 Council Directive 2004/83/EC of 29 April 2004 Official Journal of the European Union L 304/16-17 30.9.2004, art. 9.
5 Hathaway and Pobjoy, at note 19.
6 In international law, a human right is an entitlement of an individual to a particular interest that gives rise to a duty or obligation on the State to respect, protect and fulfill that entitlement: John Tobin, The Right to Health in International Law (Oxford University Press 2011)  50-15. Thus when determining whether there has been a violation of a human right there are two fundamental questions (1) was there an interference, limitation or engagement with the scope of the right and (2) if so, can the interference be justified (which is invariably reduced to a test of reasonableness): id. at 181-82.
7 See e.g. Hathaway and Pobjoy, at 29 (explain that ‘such harms will often amount to the violation of core internationally recognized human rights, they are, if coupled with the home state’s failure to counter the precipitating risk, appropriately recognized … as persecutory’. Although they avoid the use of the phrase state protection they still treat separately a human rights violation and the actions of the home state.)
8 At one point Hathaway and Pobjoy explain that ‘the requirement that there be a failure of state protection will be readily established by the failure of the state to provide a meaningful response to the precipitating cause of the serious harm’: Hathaway and Pobjoy above n (text at note 149). Such a test is unknown to human rights law and it not used to assess whether there has been a violation of a human right.
9 Such a scenario could arise for example where the threat of serious harm to the applicant came from non-state actors but the state, due to a lack of resources and effective control of its territory, was simply unable to protect the applicant against this threat. In such circumstances, there would be an interference with the human rights of the applicant but there may not be a violation of the state’s obligations because they were taking reasonable measures in light of available resources and operational constraints to protect against the harm. See Osman v. United Kingdom (1999) 29 EHRR 245 (outlines the qualified nature of a state’s obligations with respect to threats to the right to life that emanate from non state actors). It is also worth noting that if this proposition is correct, namely that refugee status can be granted in the absence of a human rights violation, it may be more appropriate to talk of persecution in terms of a serious interference with a human right as opposed to a violation of a human right in circumstances where a state is unable or unwilling to protect against this interference.
10 For example the preamble to the UDHR refers to fundamental human rights and the preamble to the Refugee Convention refers to the UDHR, which ‘affirmed the principle that all human beings shall enjoy fundamental human rights and freedoms without discrimination’. See also Gunnar Beck Legitimation Crisis, Reifying Human Rights and the Norm Creating Power of the Factual: Reply to “Reifying Law”: Let them be Lions’ (2008) 26 Penn State International Law Review 565, 568 (noting that the terms human rights and fundamental rights are often used interchangeably). With respect to the principle of interdependence and indivisibility see eg: Vienna Declaration on Human Rights adopted at the World Conference on Human Rights 12 July 1993 A/CONF.157/23 para 5; Report of the Human Rights Council Report of the Third Committee HRC UPR A/62/434 Annex Human Rights Periodic Review Mechanism ¶ 3(1).)
11 Id. at 33-37.
12 HJ and HT v SSHD, ¶ 15
13 Id. at ¶ 14.
14 Id. at ¶ 11
15 Id. at ¶ 72.
16 Id. at ¶ 67.
17 Id. at ¶ 113
18 Id.
19 Refugee Status Appeals Authority (‘RSAA’) Refugee Appeal No 74665/03 ¶ 114.
20 Hathaway and Pobjoy.
21 Id.  See also Jenni Millbank ‘A Preoccupation with Perversion: The British Response to Refugee Claims on the Basis of Sexual Orientation 1989-2003’ (above ) 116. See also: Wayne Morgan ‘Identifying Evil for What it is: Tasmania, Sexual Perversity and the United Nations’ (1994) 19 Melbourne University Law Review 741, 753-756.
22 See Human Rights Committee General Comment No 31 The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ CCPR/C/21/Rev.1/Add. 13 26 May 2004 para 5. See also: John Tobin ‘Seeking to Persuade: A Constructive Approach to Treaty Interpretation’ (above xx ) 37-39 (describes this requirement as internal system coherence which is identified as a key feature of a persuasive treaty interpretation).
23 See Human Rights Committee General Comment No 31 The Nature of the General Legal Obligation Imposed on States Parties to the Covenant CCPR/C/21/Rev.1/Add.13, 26 May 2004 para 6. On the idea of positive duties under international human rights law and the shift from a focus on non intervention by a state to enhancing or facilitating an individual’s ability to fulfill their choices see Sandy Fredman Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press 2008), Chapter 1.
24 Human Rights Committee General Comment No 31 (above ) para 6. See Commission on Human Rights Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights UN Doc E/CN.4/1985/4 (28 September 1984).
25 Hathaway and Pobjoy, (surely there is a conceptual incongruity in relying on the right to privacy as the means by which to recognize the serious harm.
26 Pretty v United Kingdom 2346/02 [2002] ECHR 427 (29 April 2002) ¶ 61. See also the more recent decision of Georgel and Georgeta Stoicescu V Romania (Application no. 9718/03) ¶¶ 48-49.
27 Pretty v. United Kingdom, ¶ 23 (this argument was raised by counsel for the applicant)
28 Pretty v United Kingdom 2346/02 [2002] ECHR 427 (29 April 2002) ¶ 61 (emphasis added).
29 Hathaway and Poboy.
30 See James Griffin On Human Rights (Oxford University Press 2008) (argues that the moral justification for human rights must be grounded in their capacity to advance the normative agency of an individual); Amartya Sen ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 315 (links human rights to his capabilities approach and his conception of freedom as not merely the absence of interference but as agency and the ability to exercise freedom); Chris McCrudden ‘Human Dignity and the Judicial Interpretation of Human Rights (2008) 19 EJIL 655 (examines the idea of a dignity as the foundation of human rights).
31 Jeremy Waldron ‘Judges as Moral Reasoners’ (2009) 7 Int J Constitutional Law 2, 6 (warns of the dangers of judges adopting an autonomous style of reasoning); Ronald Dworkin, Law’s Empire (Harvard University Press 1986) 211 (warning that a judge is not free ‘to plant the flag of his [or her own moral] convictions over as large a domain of power or rules as possible’.

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