INTERNATIONAL
ASSOCIATION
OF REFUGEE LAW JUDGES
(IARLJ)
Australia/New
Zealand Chapter Meeting, Sydney, 9 June 2004
THE
INTERSECTION OF HUMAN RIGHTS LAW
AND REFUGEE LAW:
ON OR OFF THE MAP? THE CHALLENGE
OF LOCATING APPELLANT S395/2002
Rodger Haines QC, Deputy
Chair, Refugee Status Appeals Authority
INDEX
INTRODUCTION
TWO DIFFERENT REGIMES
DO THE NORMATIVE AND PALLIATIVE REGIMES
INTERSECT?
Understanding being persecuted
Three broad approaches to being persecuted
Application of the contextualised approach
to interpretation
Identifying core human rights
Three qualifications
VOLUNTARY BUT PROTECTED ACTIONS
APPELLANT S395/2002 REVISITED
CONCLUSION
[1] The majority decision
(McHugh, Kirby, Gummow & Hayne JJ) in Appellant S395/2002 v
Minister for Immigration and Multicultural Affairs (2003) 203
ALR 112
(HCA) is remarkable not because of the striking disagreement with the
minority (Gleeson CJ, Callinan & Heydon JJ) on the issue whether
there was any question to be determined and not because of the largely
correct holding that refugee claimants do not have a duty to avoid
being persecuted. It is remarkable because the question whether
individuals can or should modify their conduct to avoid being
persecuted is a quintessentially human rights issue which falls for
analysis in the “being persecuted” limb of the definition2;
but two of the majority judges (Gummow & Hayne JJ) at [83]
explicitly rejected the relevance of human rights norms, stating that
considering what an individual is entitled to do was of little
assistance and leads to error. In their view the sole issue is
that of risk (ie well-foundedness). The other members of the
majority (McHugh & Kirby JJ) at [45] largely agreed that the
analysis properly belongs to the well-founded element, but (without
elaboration) allowed that international human rights standards could be
relevant in the largely secondary context of determining the proper
bounds of state
action in penalising homosexual conduct.
[2] In the result, having
determined (controversially) that there was a
live issue for determination and having identified that issue as being
whether a refugee claimant ought to modify his or her conduct to reduce
the risk of being persecuted, the majority focussed on the issue of
risk and thereby carried out the analysis in the wrong “box” (the
well-founded element). This paper argues that a more principled
approach would require a court or tribunal, prior to addressing the
issue of risk, to first determine the nature of the “right” asserted by
the claimant. If that right lies within the parameters recognised
by international human rights law, a risk of being persecuted for
exercising that right could properly be regarded as satisfying the
“being persecuted” limb of the definition. If, on the other hand,
the right lies outside those parameters, the risk of being persecuted
is not logically encompassed by the notion of “being persecuted”.
[3] The better view is that the
correct starting point of the inquiry
is the nature of the right sought to be exercised. If the right
is not a core human right, the persecution standard of the Refugee
Convention is simply not engaged. If, however, the right in
question is a fundamental
human right, the next stage of the inquiry is
to determine the metes and bounds of that right. If the proposed
action in the country of origin falls squarely within the ambit of that
right the failure of the state of origin to protect the exercise of
that right coupled with the infliction of serious harm should lead to
the conclusion that the refugee claimant has established a risk of
“being persecuted”. In these circumstances there is no duty to
avoid the anticipated harm by not exercising the right, or by being
“discreet” or “reasonable” as to its exercise.
[4] On this approach a refugee
claimant cannot, in the exercise of his
or her human rights, be expected or required to exercise “discretion”
or to otherwise avoid the predicament of “being persecuted”. This
outcome,
while close to that of the majority, is arrived at by an
entirely different route. The analysis is done in the “being
persecuted” element, not in the well-foundedness assessment. In
short the respectful submission is that the majority arrived at the
right result for the wrong reasons.
[5] On one view the majority
decision has the potential of deflecting
refugee law from employing international human rights standards to
inform the meaning of “being persecuted”. This would be most
unfortunate as Australia appears to be alone among the major common law
refugee jurisdictions (Australia, Canada, New Zealand, UK, USA) in not
expressly adopting a human rights approach to “being persecuted” and is
in danger of isolating itself from truly significant advances in human
rights. In the sexual orientation context, it is striking, to say
the least, that none of the majority judgments draw on recent
international jurisprudence on the rights of homosexuals. The
decision of the Supreme Court of the United States of America in
Lawrence v Texas 123 S. Ct.
2472 (2003) and that of the Constitutional
Court of South Africa in National
Coalition for Gay and Lesbian
Equality v Minister of Justice 1999 (1) SA 6 are of direct
relevance to
the issues of “discretion”, “reasonableness” and “avoidance”. The
decisions of the Human Rights Committee in Toonen v Australia (Comm No
488/1992, UN Doc CCPR/C/50/D/488/ 1992, 4 April 1994) (sodomy laws) and
Joslin v New Zealand (Comm No
902/1999, UN Doc CCPR/C/75/D/902/ 1999,
30 July 2002) (same sex marriage) are of similar relevance as are
a raft of decisions of the European Court of Human Rights, including
Dudgeon v United Kingdom
(1981) 4 EHRR 149 (ECHR) (criminalising
homosexual acts), Lustig-Prean and
Beckett v United Kingdom (2000) 31
EHRR 601 (ECHR) and Smith and Grady
v United Kingdom (1999) 29 EHRR 493
(ECHR) (ban on homosexuals in the military).
[6] Appellant S395/2002 should be seen
as a missed opportunity to apply
international human rights norms to inform the meaning of the “being
persecuted” element of the Refugee Convention.
[7] It is said by Paul Sieghart
in The International Law of Human
Rights (Clarendon Press, Oxford, 1983) xix that international
human
rights law was born after the Second World War. Until then, how a
sovereign State treated its own citizens was, in the consistent
tradition of international law, a matter exclusively for its own
sovereign determination, and beyond the scope of legitimate criticism
by others. That is no longer the case. Such matters are now
the subject of the legitimate concern of all mankind, and capable of
objective assessment and judgment by reference to common standards of
internationally agreed, and legally binding, rules - collectively known
as “international human rights law”, and in effect for many of the
world’s nations, at all events in the form of treaty law.
[8] The international human
rights regime is normative.
Its
function is to judge whether states are fulfilling their duties under
internationally agreed human rights norms and, through monitoring and
publicising, to deter future abuse; or as Deborah E Anker puts it
in “Refugee Law, Gender, and the Human Rights Paradigm” (2002) 15
Harvard Human Rights Journal 133, 134, to change the behaviour of
states.
[9] Human rights norms derive
principally from the International Bill
of Rights, being the Universal Declaration of Human Rights (UDHR), the
International Covenant on Civil and Political Rights, 1966 (ICCPR) and
the International Covenant on Economic, Social and Cultural Rights,
1966 (ICESCR) as well as the more specialised instruments relating to
race (CERD), gender (CEDAW) and children (CRC). The institutions
of this regime are the international monitoring bodies, namely the
Human Rights Committee, the Committee on Economic, Social and Cultural
Rights, the Committee on the Elimination of all Forms of Discrimination
against Women, the Committee on the Elimination of Racial
Discrimination and the Committee on the Rights of the
Child. There are no significant enforcement
mechanisms. The Human Rights Committee, for example, even under
the individual complaints procedure of the First Optional Protocol, can
only express non-binding “views”. While a spirited attempt has
been made to assert that the views “should be considered authoritative”
(see Elizabeth Evatt, “The Impact of International Human Rights on
Domestic Law” in Huscroft & Rishworth (eds), Litigating Rights:
Perspectives from Domestic and International Law (Hart, 2002)
283, 300)
the accepted (and better) view is that “views” are neither
authoritative nor binding. See the rejoinder to Evatt by Paul
Rishworth, “The Rule of International Law?” op cit 267, 275-279 and
Scott Davidson, “Intention and Effect: The Legal Status of the Final
Views of the Human Rights Committee” op cit 305, 314-318.
[10] Refugee law is closely
connected to human rights law but its
function is entirely different. Whereas the human rights regime
identifies the duties undertaken by states parties to “respect and to
ensure” certain civil and political rights (ICCPR Art 2(1)) or to
“achieve progressively the full realisation” of specified economic,
social and cultural rights (ICESCR Art 2(1)), the Refugee Convention
addresses the situation where human rights are abused at a serious
level. It provides protection to those compelled to flee because
human rights are being abused. Its role is palliative.
It
provides what Professor Hathaway has described as the human being’s one
truly autonomous remedy: flight when circumstances become unbearable:
Professor James C Hathaway, “New Directions to Avoid Hard Problems: The
Distortion of the Palliative Role of Refugee Protection” (1995) 8 JRS
288, 293-294.
DO THE NORMATIVE
AND PALLIATIVE REGIMES INTERSECT?
Understanding being persecuted
[11] The Refugee Convention
does not protect against all forms of
harm. At the heart of the definition of the term “refugee” is the
requirement that the individual establish a well-founded fear “of being
persecuted”.
[12] This term is not defined
in the Refugee Convention or in any other
relevant international instrument. The Rome Statute of the
International Criminal Court, 1998 Article 7(2)(g) does provide a
definition of “persecution” in the context of “crime against humanity”:
“Persecution” means the
intentional and severe
deprivation of fundamental rights contrary to international law by
reason of the identity of the group or collectivity.
[13] The requirement of
intention is understandable in the context of a
statute which provides for the prosecution and punishment of serious
crimes. Criminal law concepts such as mens rea and actus reus are
in this context integral to the attribution of criminal
responsibility. The Refugee Convention, however, is not an
instrument of accountability. Its focus is not on the
perpetrator, but on the victim. It even avoids the term
“persecution”. Rather it employs the passive voice “of being
persecuted”. The inclusion clause has as its focus the
predicament
of the refugee claimant. The language draws attention
to the fact of exposure to harm rather than to the act of inflicting
harm. The focus is on the reasons for the refugee claimant’s
predicament rather than on the mindset of the persecutor, a point
recognised in Chen Shi Hai v
Minister for Immigration and Multicultural
Affairs (2000) 201 CLR 293 at [33] (Gleeson CJ, Gaudron, Gummow
&
Hayne JJ) and [65] (Kirby J) (HCA) and see Refugee Appeal No. 72635/01
(6 September 2002); [2003] INLR 629 at [168] (NZRSAA). Even s 91R
of the Migration Act 1958 (Cth), while departing from the Refugee
Convention by employing the term “persecution”, does not require the
intentional infliction of harm. The Rome Statute definition is
therefore of little assistance.
[14] Commentators have stressed
the open-ended nature of the term
“being persecuted” in Article 1A(2) of the Refugee Convention and have
pointed out that the drafters of the Convention intentionally left the
meaning undefined because they realised the impossibility of
enumerating in advance all of the forms of maltreatment which might
legitimately entitle persons to benefit from the protection of a
foreign state: Professor Hathaway, The Law of Refugee Status
(Butterworths, 1991) 102.
[15] Taking as the starting
point of our inquiry the fact that the term
“of being persecuted” was deliberately left undefined and further given
the impossibility of enumerating in advance all forms of maltreatment,
should one even try to arrive at a principled understanding of “being
persecuted”? The only answer possible is that the refugee
definition must be interpreted in a principled manner.
[16] This may be difficult
where the decision-maker is faced not with
the text of the Convention, but with a domestic statute which not only
departs from the text of the Convention, but also seeks to impose a
particular “vision” of what the definition ought to
be. See
generally Alice Edwards, “Tampering with Refugee Protection: The Case
of Australia” (2003) 15 IJRL 192, 202-204; Roz Germov & Francesco
Motta, Refugee Law in Australia
(Oxford, 2003) at 189-192. This
paper will assume, however, that the text of the Convention must
prevail and only the Convention text will be addressed.
Three broad approaches to being persecuted
[17] Three broad approaches to
“being persecuted” can be identified.
[18] First, the application of
the domestic human rights standards of
the country of intended asylum. The disadvantages of a domestic
standard are clear. First, the Refugee Convention is an
international treaty and must be interpreted as such. Second,
there will be no uniformity in the application of the Refugee
Convention. This is inherently undesirable in the context of an
international human rights treaty. Third, a domestic standard
simultaneously allows too easily the intrusion of ideology and also the
implication of censure of the state of origin. More
fundamentally, if in the country of asylum abuses of human rights occur
(even if not approaching the level of “being persecuted”), the refugee
decision-maker may be blind or indifferent to refugee claims based on
similar abuses in the claimant’s country of origin, or may be deterred
from recognising refugee status in case this is seen as a judgment on
the decision-maker’s own country or indeed on his or her personal
political opinions or religious beliefs.
[19] The second approach is to
seek the meaning of “being persecuted”
in dictionaries. But most words have several shades of meaning
and the sense in which a word is used in any treaty or statutory
provision depends on the context and purpose of the treaty or
provision. The need to interpret the terms of a treaty in their
context and in the light of the object and purpose of the treaty
precludes an interpretive approach which, to adapt the description
given by Gaudron & Gummow JJ in Re
Refugee Review Tribunal; Ex
parte Aala (2000) 204 CLR 82 at 25 (HCA) is undertaken with the
text in
one hand and a dictionary in the other - even assuming that both
English and French dictionaries are ambidextrously employed. The
dangers inherent in the use of dictionaries to interpret the Refugee
Convention were explicitly recognised by Kirby J in Minister for
Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
at
[108] (HCA).
[20] The third interpretive
approach is based firmly on accepted
principles of treaty interpretation as mandated by customary
international law, now codified in Article 31 of the Vienna Convention
on the Law of Treaties, 1969 namely:
A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose.
[21] The contextualised
approach to interpreting Article 1A(2) can now
be said to be the dominant common law approach. For Canada see
Canada (Attorney General) v Ward
[1993] 2 SCR 689, 709, 733-734
(SC:Can). For the United
Kingdom see R v Immigration Appeal
Tribunal; Ex parte Shah [1999] 2 AC 629, 638-639, 651, 656, 660
(HL);
Adan v Secretary of State for the
Home Department [1999] 1 AC 293, 305
(HL); Horvath v Secretary of State
for the Home Department [2001] 1 AC
489, 495F (HL) and Sepet v Secretary
of State for the Home Department
[2003] 1 WLR 856; [2003] 3 All ER 304 (HL) at [7] and [38]. In
Australia the Vienna Convention principles were expressly applied in
Applicant A v Minister for
Immigration and Ethnic Affairs (1997) 190
CLR 225, 230 (Brennan CJ), 240 (Dawson J), 252-255 (McHugh), 277
(Gummow J), 292 & 294 (Kirby J).
Application of the
contextualised approach to interpretation
[22] Application of the
interpretive principles codified in the Vienna
Convention on the Law of Treaties has led to the acceptance in the
United Kingdom, Canada and New Zealand of two central propositions:
(a)
That central to the definition of the term
“refugee” is the concept of state protection. The refugee scheme
is surrogate or substitute protection, activated only upon failure of
state protection. See the seminal judgment of the Supreme Court
of Canada in Canada (Attorney
General) v Ward [1993] 2 SCR 689, 709
(SC:Can) delivered by La Forest J:
At the outset, it is
useful to
explore the rationale underlying the international refugee protection
regime, for this permeates the interpretation of the various terms
requiring examination. International refugee law was formulated
to serve as a back-up to the protection one expects from the state of
which an individual is a national. It was meant to come into play
only in situations when that protection is unavailable, and then only
in certain situations. The international community intended that
persecuted individuals be required to approach their home state for
protection before the responsibility of other states becomes
engaged. For this reason, James Hathaway refers to the refugee
scheme as “surrogate or substitute protection”, activated only upon
failure of national protection; see The
Law of Refugee Status (1991),
at p135.
The principle of
surrogacy, long part of the
jurisprudence of the NZRSAA (Refugee
Appeal No. 71427/99 [2000] NZAR
545; [2000] INLR 608 at [49]) was recognised also by the New Zealand
Court of Appeal in Butler v
Attorney-General [1999] NZAR 205, 216-217
(CA) and more recently by the House of Lords in Horvath v Secretary of
State for the Home Department [2001] 1 AC 489, 495E (HL).
(b)
That underlying the Refugee Convention is the
commitment of the international community to the assurance of basic
human rights without discrimination and that persecution is to be
understood as the sustained or systemic denial of core human
rights. See again Ward
at 733:
Underlying the Convention
is the
international community’s commitment to the assurance of basic human
rights without discrimination. This is indicated in the preamble
to the treaty as follows:
Considering
that the Charter of the United Nations and Universal Declarations of
Human Rights approved on 10 December 1948 by the General Assembly have
affirmed the principle that human beings shall enjoy fundamental rights
and freedoms without discrimination.
This theme outlines the
boundaries of the objectives sought to be achieved and consented to by
the delegates. It sets out, in a general fashion, the intention
of the drafters and thereby provides an inherent limit to the cases
embraced by the Convention. Hathaway, supra, at p.108, thus
explains the impact of this general tone of the treaty on refugee law:
The dominant
view, however, is that refugee law ought to concern itself with actions
which deny human dignity in any key way, and that the sustained or
systemic denial of core human rights is the appropriate standard.
This theme sets the
boundaries
for many of the elements of the definition of “Convention
refugee”. “Persecution”, for example, undefined in the Convention
has been ascribed the meaning of “sustained or systemic violation of
basic human rights demonstrative of a failure of state protection”; see
Hathaway, supra, at
pp.104-105”.
[23] This approach was
expressly adopted in Horvath
at 495F (Lord Hope
with whom Lords Browne-Wilkinson and Hobhouse agreed) and in Sepet at
[7] and [38] (Lords Bingham, Steyn, Hoffmann, Hutton &
Rodger). For New Zealand see Refugee
Appeal No. 71427/99 [2000]
NZAR 545; [2000] INLR 608 at [50].
[24] In Australia the picture
appears less clear, at least to this
possibly uninformed observer. In Minister for Immigration and
Multicultural Affairs v Khawar (2002) 210 CLR 1 (HCA), while it
appears
to have been accepted that persecution may be constituted by the
“denial of fundamental rights or freedoms otherwise enjoyed by
nationals of the country concerned” (see [76]) there was nevertheless a
fundamental divergence between Gleeson CJ at [19] - [24] and McHugh
& Gummow JJ at [73] over the question whether the Refugee
Convention is to be understood as providing surrogate protection, as
suggested by Professor Hathaway in The
Law of Refugee Status at 124 and
accepted in Horvath and in Butler v Attorney-General.
Kirby J at
[111], having recognised the dangers in the use of dictionary
definitions of the word “persecuted”, appears to have acknowledged the
force of Professor Hathaway’s formulation of persecution as a violation
of basic human rights demonstrative of a failure of state
protection. More recently in Minister
for Immigration and
Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Gleeson CJ, Hayne & Heydon JJ at [19] - [21] accepted both the
“surrogate protection” understanding of the Refugee Convention and the
need to understand persecution as the violation of fundamental human
rights and freedoms. For his part, McHugh J at [72] - [74]
continued to formulate an understanding of persecution without express
recognition of the utility of employing international human rights
norms other than that of non-discrimination.
Identifying
core human rights
[25] If the human rights
interpretation is to be adopted, it is
necessary to identify the sources of core norms of international human
rights law for the purpose of refugee determination. Customary
international law is of limited assistance primarily due to the
difficulty in establishing the two essential elements, namely State
practice and opinio juris.
As Bruno Simma and Philip Alston
convincingly demonstrate in “The Sources of Human Rights Law: Custom,
Jus Cogens and General Principles” (1992) 12 Australian YBIL 82, this
can be a difficult exercise, fraught with doctrinal controversy.
Given that only a small handful of human rights can be established in
customary international law, there is substantial doubt whether custom
really is an adequate means of identifying fundamental human rights for
the purpose of interpreting the inclusion clause of the Refugee
Convention. In this situation treaty law provides a more solid
and compelling legal foundation.
[26] The Refugee Convention
itself provides guidance as to the human
rights to which reference should be made in the determination of
refugee status. The Preamble makes explicit reference to the
Universal Declaration of Human Rights, 1948 (“UDHR”):
Considering that the Charter of the
United Nations
and the Universal Declaration of Human Rights approved on 10 December
1948 by the General Assembly have affirmed the principle that human
beings shall enjoy fundamental rights and freedoms without
discrimination,
Considering that the United Nations
has, on various
occasions, manifested its profound concern for refugees and endeavoured
to assure refugees the widest possible exercise of these fundamental
rights and freedoms.
[27] The human rights
enunciated in the UDHR were subsequently
translated into binding treaty form by the International Covenant on
Civil and Political Rights, 1966 (“ICCPR”) and the International
Covenant on Economic, Social and Cultural Rights, 1966
(“ICESCR”). The three instruments must be read together. On
accepted principles of treaty interpretation the phrase “being
persecuted” is appropriately to be understood against the background of
these norms. Professor Hathaway in his Law of Refugee Status
(1991) at 106 explains the point in the following terms:
Among the myriad
treaties, declarations, rules and
other standards adopted by states, the International Bill of Rights,
consisting of the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, and the
International Covenant on Economic, Social and Cultural Rights, is
central. More than any other gauge, the International Bill of
Rights is essential to an understanding of the minimum duty owed by a
state to its nationals. Its place derives from the extraordinary
consensus achieved on the soundness of its standards, its regular
invocation by states, and its role as the progenitor for the many more
specific human rights accords. Reference to the International
Bill of Rights in deciding whether or not a state has failed to provide
basic protection in relation to core, universally recognised values is
moreover consistent with the Convention’s own Preamble and General
Assembly Resolution 2399 (XXIII).
[28] Returning to the subject
in “The Relationship Between Human Rights
and Refugee Law: What Refugee Law Judges Can Contribute” in IARLJ, The
Realities of Refugee Determination on the Eve of a New Millennium: The
Role of the Judiciary (1998) 80, 85 Professor Hathaway points
out that
reliance on core norms of international human rights law to define
forms of “serious harm” within the scope of persecution is not only
compelled as a matter of law, but makes good practical sense, for at
least three reasons:
1. One
must look at how
states themselves have
defined unacceptable infringements of human dignity if we want to know
which harms they are truly committed to defining as
impermissible. Human rights law is precisely the means by which
states have undertaken that task.
2.
Refugee decision-makers who use human rights law
to define harms within the scope of “being persecuted” are not
combatting the views of governments, but rather relying on the very
standards which governments have said to be minimum standards.
This is what he calls a dynamic “dialogue of justification”.
3.
International human rights law provides refugee
law judges with an automatic means - within the framework of legal
positivism and continuing accountability - to contextualise and update
standards in order to take new problems into account. Because
international human rights law is constantly being authoritatively
interpreted through a combination of general comments, decisions on
individual petitions, and declarations of UN plenary bodies, there is a
wealth of wisdom upon which refugee decision-makers can draw to keep
the Convention refugee definition alive in changing
circumstances. This flexibility of international human rights law
makes it possible to address new threats to human dignity through
refugee law, but to do so without asserting either subjective or
legally ungrounded perceptions of “what’s right, and what’s wrong”.
[29] Elaborating on the
capacity of international human rights law to
update itself, Professor Hathaway went on to suggest that while his Law
of Refugee Status (1991) restricted itself to the UDHR, the
ICCPR and
the ICESCR, with the benefit of nearly (then) eight years of progress
on human rights law, he acknowledged that one could today interpret
“being persecuted” by reference to an enlarged set of international
human rights instruments. However, he cautioned that one should
not rush to embrace every new Convention on human rights, much less
mere declarations or statements of principle as legally relevant to
defining harms within the scope of “being persecuted”. In
his IARLJ paper at p 86 he said:
If we believe that the
standards relied on should
really be
agreed by states to be authoritative, if we believe in the
importance of genuine accountability through a dialogue of
justification with governments, in short, if we want refugee status
determination to be taken seriously as law-based rather
than as an
exercise in humanitarian “do-goodism”, then we have to exercise some
responsible constraint on the impulse to embrace every new human rights
idea that comes along.
[30] Conceding that drawing the
bright line is not a simple task,
Professor Hathaway made the following suggestions in his address at op
cit 86:
At a minimum, though it
seems to me that a
commitment to legal positivism requires, first, that we focus on legal
standards - primarily treaties - not on so-called “soft law” which
simply doesn’t yet bespeak a sufficient normative consensus.
While we can logically resort to these evolving standards as a means to
contextualize and elaborate the substantive content of genuine legal
standards, they should not, in my view, be treated as authoritative in
and of themselves.
Second, as among
authoritative legal standards, it
is important not to rely on treaties that remain short on serious
support from states. Until and unless we are able honestly to say
that a given treaty enjoys general support, it ought not to be used to
interpret a term in what is meant to be a universal treaty
on refugee
protection. In practical terms, one might reasonably consider
looking for ratification of a given treaty by a respectable
super-majority - for example, two thirds of the United Nations
membership, including some support in all major geo-political groupings.
[31] Applying this test
Professor Hathaway was of the view that one
could today interpret “being persecuted” by reference to not only the
International Bill of Rights, but also by consideration of the
Convention on the Elimination of all Forms of Racial Discrimination,
1966 (“CERD”), the Convention on the Elimination of Discrimination
Against Women, 1979 (“CEDAW”) and the Convention on the Rights of the
Child, 1989 (“CRC”). This approach was adopted by the New Zealand
Refugee Status Appeals Authority in Refugee
Appeal No. 71427/99 [2000]
NZAR 545; [2000] INLR 608 at [51].
[32] In addition to employing
the international human rights
instruments referred to, it is only appropriate that regard be had to
the interpretation of those instruments by the “treaty bodies” set up
under the instruments, particularly the Human Rights Committee, the
Committee on Economic, Social and Cultural Rights, the Committee on the
Elimination of all Forms of Discrimination Against Women, the Committee
on the Elimination of Racial Discrimination and of the Committee on the
Rights of the Child. The binding effect and jurisprudential
quality of the decisions of these bodies may be a matter of controversy
but the decisions are at least of persuasive authority. On
occasion it might also be appropriate to draw on the jurisprudence of
the European Court of Human Rights.
Three
qualifications
[33] Out of an abundance of
caution, three qualifications are noted.
[34] First, in the context of
Article 1A(2) of the Refugee Convention,
the identification of basic human rights is directed to a single,
limited end, namely the illumination of the meaning of the phrase
“being persecuted”. There is no other purpose. The function
of refugee law is palliative.
It does not hold states responsible
for human rights abuses. The determination of refugee status is
no more than an assessment whether, in the event of the refugee
claimant returning to the country of origin, there is a real chance of
that person “being persecuted” for a Convention reason.
[35] Second, only a highly
select group of human rights treaties are to
be the point of reference. This avoids the danger of
over-inclusion. As Philip Alston points out in “Conjuring Up New
Human Rights: A Proposal for Quality Control” (1984) Am. J. Int’l L
613, new “rights” can be claimed with little thought, debate or
agreement. Not everything that may serve to improve the
well-being of individuals can or should be accepted as a human right.
[36] Third, the intention of
the drafters was not to protect persons
against any and all forms of even serious harm, but was rather to
restrict refugee recognition to situations in which there was a risk of
a type of injury that would be inconsistent with the basic duty of
protection owed by a state to its own population. As Professor
Hathaway explains at op cit 103-104:
As a holistic reading of
the refugee definition
demonstrates, the drafters were not concerned to respond to certain
forms of harm per se, but
were rather motivated to intervene only where
the maltreatment anticipated was demonstrative of a breakdown of
national protection. The existence of past or anticipated
suffering alone, therefore, does not make one a refugee, unless the
state has failed in relation to some duty to defend its citizenry
against the particular form of harm anticipated.
[37] In summary the normative
and palliative regimes intersect at the
phrase “of being persecuted” in Article 1A(2) of the Refugee Convention.
VOLUNTARY
BUT PROTECTED ACTIONS
[38] Sometimes an applicant for
refugee status bases his or her claim
on the risk that would accrue in the country of origin if he or she
were to engage in an activity there which should arguably be allowed as
a legitimate exercise of basic, internationally recognised human
rights. These cases have frequently proved troubling and
difficult, and have usually been resolved with no clear articulation of
relevant legal principles.
[39] Understanding the
predicament of “being persecuted” as the
sustained or systemic violation of basic human rights demonstrative of
a failure of state protection means that the refugee definition is to
be approached not from the perspective of what the refugee claimant can
do to avoid being persecuted, but from the perspective of the
fundamental human right in jeopardy and the resulting harm. If
the right proposed to be exercised by the refugee claimant in the
country of origin is at the core of the relevant entitlement and
serious harm is threatened, it would be contrary to the language
context, object and purpose of the Refugee Convention to require the
refugee claimant to forfeit or forego that right and to be denied
refugee status on the basis that he or she could engage in self-denial
or discretion on return to the country of origin; or, to borrow the
words of Sachs J in National
Coalition for Gay and Lesbian Equality v
Minister of Justice 1999 (1) SA 6 at [130], to exist in a state
of
induced self-oppression. By requiring the refugee applicant to
abandon a core right the refugee decision-maker is requiring of the
refugee claimant the same submissive and compliant behaviour, the same
denial of a fundamental human right, which the agent of persecution in
the country of origin seeks to achieve by persecutory conduct.
The potential complicity of the refugee decision-maker in the refugee
claimant’s predicament of “being persecuted” in the country of origin
must be confronted. The issue cannot be evaded by dressing the
problem in the language of well-foundedness, that is, by asserting that
the claim is not a well-founded one because the risk can or will be
avoided.
APPELLANT S395/2002
REVISITED
[40] Approaching the majority
decision from the perspective of a human
rights understanding of “being persecuted”, a number of observations
can be made.
[41] First, the apparent
rejection by Gummow & Hayne JJ at [83] of
the human rights framework for determining what an individual is
entitled to do is, with respect, insupportable. As a matter of
treaty interpretation the well-founded element cannot do the work which
properly belongs to the “being persecuted” element. Failure to
recognise that the issue of voluntary but protected actions falls to be
analysed as a human rights issue within the “being persecuted” element
dangerously distorts the refugee enquiry into an apparently simplistic
examination whether there is a risk of serious harm. The analysis
by Gummow & Hayne JJ at [66] of the term “persecution” is, in the
circumstances, superficial and the discussion of “applicable
principles” at [72] to [77] unfortunately makes no reference to the
principles of treaty interpretation firmly established in the Court’s
own jurisprudence. Consequently when their Honours at [80] state
that a claim for protection cannot be answered by telling the applicant
to hide the fact that he or she holds the political or religious
beliefs in question, they do not explain why.
[42] Second, the decision of
McHugh & Kirby JJ is likewise notable
for the absence of any meaningful discussion of “being
persecuted”. Specifically, while [31] is given the heading
“Persecution”, it only addresses the topic indirectly by stating that
consideration must be given to:
The extent to which the
individual can be expected
to tolerate the harm without leaving or refusing to return to the
country of nationality.
But the question is not what an individual can be expected to
tolerate. Rather the enquiry is into the nature of the right
asserted by the refugee claimant and the limits of that right. In
other words, understanding the predicament of “being persecuted” as the
sustained or systemic violation of basic human rights demonstrative of
a failure of state protection means that the refugee definition is to
be approached not from the perspective of what the refugee claimant can
be expected to tolerate or expected to do to avoid being persecuted,
but from the perspective of the fundamental human right in jeopardy and
the resulting harm. If the right proposed to be exercised by the
refugee claimant in the country of origin is at the core of the
relevant entitlement and serious harm is threatened, it would be
contrary to the language, context, object and purpose of the Refugee
Convention to require the refugee claimant to forfeit or forgo that
right and to be denied refugee status on the basis that he or she could
engage in self-denial or discretion on return to the country of origin.
[43] One would readily agree
with the statement at [41] that it would
undermine the object of the Refugee Convention if the signatory
countries required refugee claimants to modify their beliefs or
opinions or to hide their race, nationality or membership of particular
social groups, before those countries would give them protection under
the Convention. But this is a statement of a conclusion and the
judgment regrettably offers no principled explanation as to why
behaviour should not have to modified or hidden.
[44] Third, such recognition
as McHugh and Kirby JJ at [45] give to
international human rights standards is rather awkwardly expressed:
[45] If a person claims
refugee status on the ground
that the law of the country of his or her nationality penalises
homosexual conduct, two questions always arise. First, is there a
real chance that the applicant will be prosecuted if returned to the
country of nationality? Second, are the prosecution and the
potential penalty appropriate and adapted to achieving a legitimate
object of the country of nationality? In determining whether the
prosecution and penalty can be classified as a legitimate object of
that country, international human rights standards as well as the laws
and culture of the country are relevant matters.
In this commentator’s view, international human rights standards do not
have the secondary importance assigned here. Furthermore, it is
deeply troubling to find that “the laws and culture of the country” are
considered to be relevant matters. One of the strengths of the
human rights approach to “being persecuted” is that it precludes the
intrusion of cultural relativism. In this respect the Toonen
decision is likewise flawed in conceding the possible relevance of the
laws and culture of the country of origin. See further Sarah
Joseph, “Gay Rights under the ICCPR - Commentary on Toonen v Australia”
(1994) 13 University of Tasmania Law Review 392 and Joseph, Schultz
& Castan (eds), The
International Covenant on Civil and Political
Rights: Cases, Materials, and Commentary 2nd ed (Oxford, 2004)
at para
16.38. Indeed it has already been argued that Toonen would be
differently decided by the Human Rights Committee in the case of Muslim
states that apply Islamic law: Mashood A Baderin, International Human
Rights and Islamic Law (Oxford, 2003) 117.
[45] Fourth, the dismissal by
McHugh & Kirby JJ of “reasonableness”
from the refugee enquiry must be treated with caution. This is
because some international human rights are subject to what might
loosely be called a “reasonableness” enquiry.
[46] See for example those
provisions in the ICCPR which contain
clauses subjecting the particular right to (inter alia) “the rights and
freedoms of others”: Article 12(3) (freedom of movement), Article
18(3) (freedom of thought, conscience and religion), Article 19(3)
(right to hold opinions without interference), Article 21 (peaceful
assembly) and Article 22(2) (freedom of association).
[47] Because international
human rights law in some circumstances
imposes an obligation to respect the rights and freedoms of others, it
cannot be said that as a matter of law
the ‘reasonableness’ of the
refugee claimant’s proposed conduct is in all circumstances
irrelevant. Inverted commas are employed here to give recognition
to the fact that the ICCPR does not expressly condition any rights with
the word “reasonable”. It is necessary, however, to signal that
many provisions require competing interests to be balanced. In
this balancing exercise a reasonableness test has been adopted by the
Human Rights Committee. The following passage is from Toonen at
para 8.3:
The prohibition against
private homosexual behaviour
is provided for by law, namely, Sections 122 and 123 of the Tasmanian
Criminal Code. As to whether it may be deemed arbitrary, the
Committee recalls that pursuant to its General Comment 16 on article
17, the “introduction of the concept of arbitrariness is intended to
guarantee that even interference provided for by the law should be in
accordance with the provisions, aims and objectives of the Covenant and
should be, in any event, reasonable in the circumstances”. The
Committee interprets the requirement of reasonableness to imply that
any interference with privacy must be proportional to the end sought
and be necessary in the circumstances of any given case. [citations
omitted]
[48] In a broad sense the
majority decision in Appellant
S395/2002 and
the human rights approach converge on the same point, namely that
refugee status cannot be denied by requiring of the claimant that he or
she avoid being persecuted by forfeiting a fundamental human
right. However, the paths taken to this point of convergence are
quite different. In the human rights approach, the analysis is
located in the “being persecuted” element, not in the evaluation of
risk and not in the Convention ground. In the High Court,
international human rights standards, while routinely acknowledged as
being relevant to the determination of the “being persecuted” element,
do not appear to have been developed to any degree and there are
suggestions in Appellant S395/2002
that in the context of voluntary but
protected actions, the focus is rather on the assessment of risk and
the definition of the particular social group. If this is how the
decision of the High Court is to be correctly understood, then it is
(with respect) wrong. The human rights approach, on the other
hand, places human rights at the centre of the “being persecuted”
analysis in the belief that this provides a principled and disciplined
framework for analysis.
[49] The human rights standard
requires the decision-maker to determine
first, the nature and extent of the right in question and second, the
permissible limitations which may be imposed by the state.
Instead of making intuitive assessments as to what the decision-maker
believes the refugee claimant is entitled to do, ought to do (or
refrain from doing), instead of drawing on dangerously subjective
notions of “rights”, “restraint”, “discretion” and “reasonableness”,
there is a structure for analysis which, even though it may not provide
the answer on every occasion, at least provides a disciplined framework
for the analysis. A framework which is principled, flexible,
politically sanctioned and genuinely international. Under the
human rights approach, where the risk is only that activity at the
margin of a protected interest is prohibited, it is not logically
encompassed by the notion of “being persecuted”. A prohibition is
to be understood to be within the ambit of a risk of “being persecuted”
if it infringes basic standards of international human rights
law. Where, however, the substance of the risk does not amount to
a violation of a right under applicable standards of international law,
it is difficult to understand why it should be recognised as sufficient
to give rise to a risk of “being persecuted”.
1.
This paper is based on the decision of the New Zealand Refugee Status
Appeals Authority in Refugee Appeal
No. 74665/03 (7 July 2004), which although not published at the
time of the Sydney conference, had been prepared in draft. The
full text of the decision is now available at the New Zealand Refugee
Law website (www.refugee.org.nz) and at the website of the Refugee
Status Appeals Authority (www.nzrefugeeappeals.govt.nz).
2. While it is
common in refugee discourse to refer to “the persecution element” of
the refugee definition, the author prefers to use the language of the
Refugee Convention itself, namely “being persecuted”. Not only is
this mandated by principles of treaty interpretation, it also serves to
emphasise the employment of the passive voice and that the inclusion
provisions of Article 1A(2) of the Convention have as their focus the predicament of the refugee
claimant. The Convention defines refugee status not on the basis
of a risk “of persecution” but rather “of being persecuted”. The
language draws attention to the fact of exposure to harm rather than to
the act of inflicting harm.