Crossing borders between international refugee law and international human rights law in the European context: can human rights enhance protection against persecution based on sexual orientation?

Danisi, Carmelo (2019) Crossing borders between international refugee law and international human rights law in the European context: can human rights enhance protection against persecution based on sexual orientation? Netherlands Quarterly of Human Rights. ISSN 09240519 (Accepted)

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Abstract

In the last decades, international refugee law (IRL) and international human rights law (IHRL) have increasingly taken into account sexual minorities’ needs. Despite not being one of the grounds of persecution under the 1951 Geneva Convention on the Status of Refugees (Refugees Convention), sexual orientation has been identified as a relevant factor for the recognition of refugee status. In the intervening period, people persecuted for a sexual minority identity have been able to find protection under IRL due to the evolving interpretation of the Refugees Convention’s five grounds, in particular that of ‘membership of a particular social group’ (PSG). In turn, IHRL has evolved to a point where sexual minorities are more fully included within the scope of rights and freedoms set forth in universal and regional human rights treaties, in particular via the prohibition of discrimination. This evolution gave rise to a sort of ‘humanisation’ of lesbian, gay, bisexual and transgender (LGBT) people, resulting in recognition of the need to specifically address their socially disadvantageous position. Yet, strange as it may seem, this simultaneous development has not always led to a mutual or fruitful intersection between IRL and IHRL when people fleeing homophobia are involved. In light of the potentially beneficial effect for all people claiming asylum, this article explores from two different angles what role IHRL may play in enhancing the protection provided by IRL to people fleeing homophobia. It argues that IHRL may, firstly, complement IRL in facilitating their access to asylum determination procedures in those States that are bound by the Refugee Convention and human rights treaties. Secondly, IHRL may expand the notion of persecution used in IRL when sexual orientation is the ground of one’s well-founded fear of persecution, at least more comprehensively than it currently does in practice.

Item Type: Article
Keywords: International refugee law; International human rights law; People fleeing homophobia; Asylum; Persecution; Humanitarian visas; Vienna Convention on the Law of the Treaties
Schools and Departments: School of Law, Politics and Sociology > Law
Research Centres and Groups: Sussex Centre for Human Rights Research
Subjects: K Law
K Law > KJ Europe
K Law > KZ Law of Nations
Depositing User: Carmelo Danisi
Date Deposited: 22 Aug 2019 16:16
Last Modified: 28 Aug 2019 10:45
URI: http://sro.sussex.ac.uk/id/eprint/85594

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Project NameSussex Project NumberFunderFunder Ref
Sexual Orientation and Gender Identity Claims of Asylum: A European human rights challengeG1968EUROPEAN UNION677693