With refugee resettlement becoming recognised as a significant and pressing policy issue in the Western world, it is important to consider the complexities of the way that international refugee law is interpreted at a domestic legislative level. Some types of refugee claims may be relatively straightforward in a legal context, such as systematic religious or political persecution, but what do we do when the waters are murkier? Asylum claims made on the basis of transgressing social and cultural norms raise a number of ethical questions.
Sovereign states have the right to create their own legislation, however discriminatory it may seem to another country. It is common sense that a country’s legislation and policies will usually reflect their social norms. Any individual who then deviates from these norms and is subsequently persecuted, could be argued by the cultural relativist as a person who needs to be ‘dealt with’ internally. But what is the role of the international community in such a situation? By granting these people asylum if they reach our shores, are we simply projecting our own societies’ ideas and values onto other societies that are fundamentally foreign to us? Are we somehow implying that our moral frameworks are superior? And does this mean we will accept anyone in a non-Western society who holds libertarian values, is subsequently persecuted, and wishes to live freely in the West? Questions like these are particularly pertinent when considering international policy decisions, such as the US offering preferential resettlement to Christians over Muslim refugees.
These kinds of considerations are not only relevant to current circumstances and the global ‘refugee crisis,’ though. After the Iranian Revolution many Western countries asked these kinds of questions. Did Iranian women fleeing because they violated Islamic norms deserve their protection? Should this qualify them for asylum? Several Western states such as the United States and the United Kingdom initially refused to grant these women asylum on the basis that Western states had no place interfering with non-Western cultural norms, just as they would not want their own norms interfered with by Islamic states. At this time it was believed that these women should simply change their behaviours and comply with the norms so that their persecution would cease.
These issues often play out on a domestic level as international law is applied within a country’s jurisdiction. To what extent will domestic legislation always deviate from the international legislation due to these differing norms? 148 nations are signatories to at least one of the 1951 Refugee Convention and its 1967 Protocol, but each nation applies the same set legislation distinctly. How can these issues be reconciled?
The Refugee Convention allows for some interpretation in applying the legislation by specifying that a person can be persecuted for being a member of a ‘particular social group’. This label is applied with discretion by each signatory state. Whether someone might meet this definition due to being persecuted as a woman, a lesbian woman or a transgender woman differs from one jurisdiction to the next. In Australia, for example, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 does indicate that a person should not have to pretend to be heterosexual and otherwise heteronormative in order to be free from persecution:
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
However on a practical level, if an asylum seeker does not seem ‘gay enough’ to a decision-maker, their claims may be dismissed. The decision-maker’s own cultural understanding of what makes someone ‘appear gay’ is then projected onto all of the people whom they assess. It is becoming more and more difficult to ‘prove’ that you are an LGBTIQ person in order to be granted asylum due to these differing understandings of sexual and gender identity. LGBTIQ asylum seekers who are sent to processing centres in the Pacific also suffer further persecution in those countries. In Papua New Guinea and Nauru for example, homosexual intercourse may be punishable by 14 years of hard labour. The Australian government justifies this because asylum seekers sent to those countries are expected to comply with the norms and the laws of those nations, even though they were not voluntarily sent there.
These intercultural norms often clash and priorities must be reconciled at an international level when we choose what claims to support and what others we will not. International humanitarian actors such as UNHCR have been faced with this quandary for decades. One could argue that we are accepting the supremacy of Western values by declaring what is and is not internationally appropriate by our own normative standards. Do we, as legal representatives, need to be conscious of the projection of our own values onto our clients when we conceptualise their persecution? If we can save the lives of oppressed women, LGBTIQ and other people, should this even matter?
For further reading visit the Rights In Exile Programme online, UC Hastings Gender & Refugee Studies listings of cases involving repressive social norms and Olivia F. Cleaver’s paper “Women Who Defy Social Norms: Female Refugees Who Flee Islamic States and Their Fight to Fit into American Immigration Law”.