General

Jenni Millbank Reflects on Panel 3 and Responds to Guglielmo Verdirame

  In Part III of their article in this special issue, Hathaway and Pobjoy claim that S395 and HJ and HT, in articulating a right to live freely and openly, have taken an “all-embracing formulation” to “action-based risks” associated with sexual orientation.  The judgments, they say, “seem to assume that risk following from any ‘gay’ form of behavior gives rise to refugee status.”  The authors argue to the contrary that refugee law should “draw a line” so as to only protect actions deemed integral to sexual orientation and not those that are deemed peripheral, trivial or stereotypical.  I contend that Hathaway and Pobjoy’s argument is both wrong in principle and dangerous in practice. Reasoning premised on assumptions about the ease, naturalness, and legal correctness of concealing lesbian, gay, and bisexual identity, is one of, if not the, most significant and resilient barrier to the fair adjudication of sexual orientation based refugee claims worldwide to date.  In 2010, it appeared that perhaps the tide had truly turned against discretion reasoning with the decision of the Supreme Court of the United Kingdom in HJ and HT.  The joined cases of HJ from Iran and HT from Cameroon were a culmination of ten years of litigation by HJ and four by HT, encompassing no less than thirteen separate determinations by seventeen decision makers.  The Supreme Court largely approved the majority approach taken in the High Court of Australia decision in S395 (2003) but condemned discretion reasoning in even stronger terms, and more explicitly grounded its decisions in equality rights.  Lord Hope stated that “[gay people] are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.”  While Lord Rodger held that

"[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."

Discretion in the Netherlands: Sabine Jansen Responds to Jenni Millbank & Guglielmo Verdirame

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium

  Sabine Jansen is a lawyer and co-author of the research report Fleeing Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, COC Netherlands/VU University Amsterdam, September 2011.   In their article Hathaway and Pobjoy propose to draw a line between protected and unprotected “gay” activities in refugee claims.  Although they acknowledge that there can be no single, universally acceptable definition of such activities, they conclude that there are some activities, loosely associated with sexual identity that are not reasonably required to reveal or express an individual’s sexual identity. I do not think such a distinction in different types of “gay” activities is a good idea, and I will illustrate my point with two recent examples of Dutch legal practice. Since May 2007, the Dutch Aliens Circular states: “People with a homosexual preference are not required to hide this preference upon return in the country of origin” (Vc C2/2.10.2). The Secretary of State added later that this means that in the assessment of an asylum claim, the possibility to conceal one’s sexual orientation should play no role. (Letter of the Secretary of State Albayrak to COC Netherlands, 12 February 2009) However, during the Fleeing Homophobia research, we found that in legal practice, “discretion reasoning” still occurs, and thus Dutch practice is contrary to Dutch policy.

David Landau Responds to Mark Tushnet

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium]. I would like to thank Mark Tushnet for his thoughtful reply to my article. As he notes, it is a deeply positive development that we have moved from talking about whether constitutions should include social rights to how they should do so. The debate about means is a particularly difficult theoretical and empirical problem, one that is likely to be one of the central debates in the field of comparative constitutional law for a long time. And the question of the effect of social rights on the poor ought to be perhaps the central question in evaluating these various means. In this light, we ought to consider the question of whether all four of the remedial methods I discuss can be improved upon. There seems to be little debate on the question of whether individual enforcement of social rights and enforcement of these rights via “negative injunction” are useful poverty reduction tools. Neither seems effective as currently constructed, but it is important to think about whether either device could be improved. For example, the individual enforcement model might be creatively engineered to have more of a system-wide effect, perhaps via a liberal use of contempt-like sanctions. Similarly, some of the recent South African jurisprudence may have demonstrated that even the “negative injunction” or status-quo-protecting model can benefit the poor in important ways, if cleverly deployed. The South African courts have refused to evict residents (thus freezing the status quo) in order to push the government to upgrade existing settlements rather than razing them and undertaking wholesale renewal. And in one case, a court refused to allow private property owners to evict impoverished squatters but allowed those private property owners to seek damages against the state – this may be an effective way to incentivize the bureaucracy to solve the problem. The main disagreement between Professor Tushnet and my piece is on the other two types of remedies; in other words, on the question of softer, dialogue-based remedies versus harder, structural injunctions. Professor Tushnet tends to favor the former and I tend to favor the latter. I admit that this is a difficult choice, especially since courts are constrained by various features of their political environments – very hard remedies might well be infeasible in a one-party state like South Africa, for example. And as I note in the paper, structural injunctions are sometimes effective, but have considerable capacity costs on courts and often do not achieve much. So the choice of remedies seems to me to be one between highly imperfect options. Also, I see the issue of hardness or softness in system-wide remedies as basically lying on a continuum – these are differences in degree rather than in kind. That is, as Professor Tushnet points out, both structural injunctions and softer remedies like Grootboom are dialogical in nature, but there are important differences in whether the court or the legislature leads the dialogue.

Dr. Hugo Storey Responds to John Tobin

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]

John Tobin Reflects on Panel 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?