[This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.] We are proud to partner once again with Opinio Juris to present an online symposium discussing a thought-provoking issue of international significance. This year, we highlight Professor Rachel Lopez’s The...
This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below. We would like to once again extend our deepest gratitude to Opinio Juris for providing us with such a wonderful forum to host this symposium. Thank you to all of the scholars who...
This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below. We are excited to collaborate again this week with Opinio Juris for an online symposium. The symposium will be a discussion of Jenia Iontcheva Turner's article Policing International Prosecutors published in our Volume 45, No. 1...
"To counteract some of these concerns, [Hathaway & Pobjoy] place great faith in international human rights and anti-discrimination law pertaining to LGBT rights to constrain decision-makers’ reliance on their own subjectimve understandings of sexuality. However, it is unclear that international law can bear such a weight in this particular context." Goodman, 44 N.Y.U. J. Int'l. L. & Pol. 407, at 441 (2012):Thank you again to Opinio Juris for its critical support on this important issue, and also to all of the authors. Below are four new contributions to the dialogue by:
Panel 3 of the NYU JILP Vol. 44:2 Online Symposium
Thomas Spijkerboer is professor of migration law at VU University Amsterdam. His publications in English include Gender and Refugee Status (Ashgate, 2000), Women and Immigration Law (Routledge, 2007, edited volume with Sarah van Walsum), and Fleeing Homophobia (VU University Amsterdam/COC Nederland, 2011, with Sabine Jansen). A couple of weeks ago, a friend of mine who works for the Dutch asylum authorities told me an example of why he feels uneasy about the Dutch asylum policy towards gay Iraqi asylum seekers. The short version, which is sufficient for our purposes, is that a man was badly beaten because he was (correctly) thought to be gay because he wore very tight jeans. Even from this short summary, it is clear that this man was subjected to persecution on account of his being gay. Such past persecution as a result of membership of a particular social group gives rise to a presumption of a well-founded fear of being persecuted in the future; state practice to this effect has been codified in Article 4(4) of EU Directive 2004/83. The Hathaway/Pobjoy article gives ample arguments to deny this claim, allowing this man to return to a situation in which he has a well-founded fear of being persecuted on account of being gay. The reason why they argue that this claim has to be denied is because “[w]here risk accrues only by virtue of an applicant having engaged in an activity no more than peripherally associated with sexual identity – including where risk arises from an imputation of sexual identity derived solely from having engaged in such activity – it cannot be reasonably said to be a risk that arises “ ‘for reasons of’ sexual orientation.” Without any doubt, dressing in tight jeans is in the same category as the examples taken from Lord Rodgers’ statement which apparently so turns on Hathaway and Pobjoy: attending Kylie concerts, drinking exotically colored drinks, and doing boy talk. The Hathaway/Pobjoy argument leads to denial of a refugee claim, which clearly should not be denied. Something is fundamentally wrong with their argument. I posit that their article has two problems. The first is an incorrect application of refugee law doctrine – surprising, because Hathaway’s 1991 book is such an impressive doctrinal analysis. The second consists of the fantasy (current among legal scholars, therefore less surprising) that law and politics can be meaningfully separated.Panel 3 of the NYU JILP Vol. 44:2 Online Symposium
Jenni Millbank is Professor of Law at University of Technology Sydney. She has pioneered work addressing the claims of lesbian, gay, bisexual and transgender asylum seekers and interrogating how their claims are understood (and misunderstood) in the refugee adjudication process. With Catherine Dauvergne, Professor Millbank has undertaken a series of research projects involving long term comparative analysis of sexuality and gender claims from Australia, the UK, Canada, New Zealand and the USA, which they are currently extending to include several European jurisdictions."[T]he Convention offers protection to gay and lesbian people—and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour—because they are entitled to have the same freedom from fear of persecution as their straight counterparts. No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable."
Panel 3 of the NYU JILP Vol. 44:2 Online Symposium
S. Chelvan is a Barrister at No5 Chambers, London; a PhD candidate in law at King’s College London; and a UK Country Expert and External Expert to the Advisory Board for the Fleeing Homophobia project. He is known as "a doyen of immigration cases involving issues of sexual identity.” (Chambers UK 2012).“An Englishman, Irishman and a Scotsman walk into a bar. The barman asks the Scotsman . . . .”
“To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.”What is the similarity, and then the difference, between the two passages above? The similarity is that most readers would accept that they each illustrate an example of British humour. The difference? Some observers read the second reference, taken from § 78 of Lord Rodger’s reasoning in the U.K. Supreme Court case of HJ, not to be illustrative of anything linked to humour, but rather a blatant attack on fundamental principles underlying refugee law. I align myself to the first scenario and aim in this short note to analyse why concentrating on excluding certain categories of conduct from protection misses the point. Kendall (2003 citing Mahoney J.A. in Thavakaran), rejects an approach where the “onus for removing the fear of persecution [is] on the victim, rather than the perpetrator” (see also Johnson, 2007: 107 fn. 30). What is at the core of the reasoning of the U.K. Supreme Court is not a right to what some observers may describe as “peripheral conduct”, but a right not to be persecuted, for reasons of sexual identity. Verdirame’s limitation on the conduct of a gay man, which went “beyond” what a straight man can exercise in the public sphere, is echoed in an earlier 2005 UK Asylum and Immigration Tribunal decision of AT (Homosexuals: need for discretion?) Iran [2005] UKAIT 00119. The AIT held, at § 28, in one of its most controversial determinations that resulted in complaints from the U.K. NGO’s UKLGIG and Stonewall, that:
"Whether there is or is not a ‘core right’ for persons of any sexual orientation to conduct themselves with discretion in their public sexual practices is not something we need in our view decide, though we should have thought that such discretion was part of the ordinary consensus of civilized mankind (and still more so of a number of races considered ‘uncivilized,’ so far as they still exist). The reason is that this appellant on our findings of fact, and his own expressed intentions for the future, has never shown the slightest wish to engage in homosexual conduct in any way in the face of the public or the authorities, such as might expose him to any real risk, on the background evidence, on return to Iran. Whether he has or does not have a ‘core right’ to go in for that sort of thing, his return will not expose him either to Convention persecution or ill-treatment."There are only three examples I can call upon to illustrate a rare and clearly ignorant approach to the exercise of public sex, being centrally connected with a refugee claim in the U.K. In XY (Iran) (2008), counsel for the appellant argued to the England and Wales Court of Appeal not to remove his gay client because he would be returned to a life of sex in the public bath houses and he would not be able to have sex in the family home [§ 14]. Secondly, the stance of the U.K. Home Office for many years with respect to the alleged existence of cruising in a Tehran park, where men were able to pick up other men for sex, was that this indicated an ability to be gay in Iran, and therefore gay men were not refugees. The third, and final example, is in the case of Hylton [2003] EWHC 1992 (Admin), where Counsel for the U.K. Home Office submitted that the risk group in Jamaica was limited to “a homosexual prostitute or homosexuals who cruise in particular areas” [§ 11] (position reversed in DW (2005) (AIT)).
Panel 2 of the NYU JILP Vol. 44:2 Online Symposium
Dr. Hugo Storey[1] is a Senior Judge of the U.K. Upper Tribunal Immigration and Asylum Chamber In the limited time and space, may I offer to following observations for Panel 2: (1) The S395 and HJ (Iran) cases are truly landmark cases. Hathaway and Pobjoy’s (H and P) article is equally a truly landmark article. And the high-quality response pieces sparked by their article are extremely important, not just for the issue of the proper approach to LGBTI claims, but for refugee jurisprudence as a whole, in particular its approach to the issue of behaviour modification. (2) Framing matters this way helps perhaps remind ourselves that in general terms it would seem desirable if claims involving the different kinds of protected characteristics could be dealt with in pari materiae – so that what is said about sexual orientation cases also holds true for religious orientation and political orientation etc. cases. It may be that in some limited respects each type of case is sui generis, indeed, both H and P (p.110) and Jenni Millbank (p.119) emphasise this and I briefly allude to it below. But in general terms the meaning of “being persecuted” etc. cannot vary from subject-matter to subject-matter. (3) This point should alert us to the fact that we had best not assume that S395 and HJ (Iran) are the last word. Quite soon the Court of Justice of the European Union (CJEU) will give its judgment on a preliminary reference from the Bundesverwaltungsgericht (Germany) in Federal Republic of Germany v. Y (Case C-71/11). The CJEU was originally seized of another German case which directly concerned the gay concealment issues, but this fell way (as noted by H and P, n.33). But Case C-71/11 has just now had an oral hearing and it raises the concealment/discretion/abstinence issue in the (arguably analogous) context of a religious persecution case involving two Ahmadis from Pakistan. The first question the CJEU is asked is whether a violation of religious freedom sufficiently severe to give rise to persecution “arises only if the core area of that religious freedom is adversely affected”? One further question asked is whether there can be acts of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC (which defines persecution) “ in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice?” A final question asks whether persecution arises if it is established that the applicant will carry out certain religious practices –other than those falling within the core area – after returning to the country of origin, even though these will give rise to a risk to body, life or physical freedom, “or is the applicant to be expected to abstain from engaging in such religious practices in the future?” The answers of the CJEU will, of course, be legally binding throughout the 29 Member States of the EU - including on the UK Supreme Court. Immediately it can be seen that several of the issues that animate the current debate, that of the use of “binaries” such as “core/periphery” and the employment of some kind of “reasonable expectation” test in particular - may very likely be tackled by the CJEU.[2]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?