Article
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 (and beyond)?
Carmelo Danisi
University of Sussex, UK; University of Bologna, Italy
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, sexual orientation
has been identified as a relevant factor for the recognition of refugee status for more than twenty
years. In parallel, 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,
especially via the prohibition of discrimination. Yet, strange as it may seem, this simultaneous
evolution has not always led to a fruitful intersection between IRL and IHRL, even in terms of
interpretation despite what the Law of Treaties requires. Drawing from documentary and quali-
tative data and by taking people fleeing homophobia as example, this article looks at the role that
IHRL may play in complementing and in intersection with IRL. It argues that IHRL may, firstly, raise
obligations to facilitate the access of these claimants to asylum determination procedures and,
secondly, inform the notion of persecution used in IRL more comprehensively than it currently
does in practice.
Keywords
asylum, non-admission, persecution, HRC, ECHR, EU, UNHCR, sexual orientation
Corresponding author:
Carmelo Danisi, University of Sussex, Brighton, UK; University of Bologna, Bologna, Italy.
E-mail: c.danisi@sussex.ac.uk
Netherlands Quarterly of Human Rights
2019, Vol. 37(4) 359–378
ªThe Author(s) 2019
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DOI: 10.1177/0924051919884758
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1. Introduction
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’),
1
sexual orientation
2
has been identified as a relevant factor for the recognition of
refugee status, at least, since 1993.
3
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’).
4
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,
5
resulting in recogni-
tion 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.
6
This
is particularly evident, as this article shows, when this intersection is tested at the interpretation
level. In fact, despite what the rules on the interpretation of treaties require,
7
IHRL has sometimes
played a limited role in defining key terms of the Refugees Convention. 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 homo-
phobia. 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. In this attempt, this contribution goes beyond previous analyses
because it relies not only on research on the European human rights and asylum legal framework
8
1. Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137
(see also the Protocol of 1967 extending the Convention’s scope of application).
2. For the purpose of this article, we refer to sexual orientation as defined by the Yogyakarta Principles <https://yogya
kartaprinciples.org>.
3. Eg Supreme Court of Canada Canada (Attorney General) v Ward (1993) 2 Supreme Court Reports 689; United States
Court of Appeals for the Ninth Circuit Geovanni Hernandez-Montiel v Immigration and Naturalization Service (2000)
225 F.3d 1084; High Court of Australia Appellants S395/2002 and S396/2002 v Minister for Immigration and Multi-
cultural Affairs (2003) HCA 71.
4. This contribution is based on the UNHCR’s definition of PSG: see UNHCR, ‘Guidelines on International Protection:
Membership of a Particular Social Group’ (2002) UN Doc HCR/GIP/02/02, 3.
5. Paul Johnson, Homosexuality and the European Convention on Human Rights (Routledge 2014).
6. Although this article takes the example of persecution based on sexual orientation, many of the issues raised would be
equally true for other sexual minorities, such as people fleeing transphobia given the similar experiences they have to
face in terms of intense social and legal discrimination. See Laurie Berg and Jenni Millbank ‘Developing a
Jurisprudence of Transgender Particular Social Group’ (2013) UTS: Law Research Paper No. 1.
7. Vienna Convention on the Law of the Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS
331, Article 31, paras 1 and 3 (c).
8. These will be referenced where appropriate. For a specific study on the EU framework on SOGI asylum, see Nuno
Ferreira ‘Reforming the Common European Asylum System: Enough Rainbow for Queer Asylum Seekers?’ (2018) (2)
GenIUS 25.
360 Netherlands Quarterly of Human Rights 37(4)
