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Whistleblowing and International Refugee Law

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Anna Maria

on 20 May 2014

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Transcript of Whistleblowing and International Refugee Law

Whistleblowing
and
International Refugee Law

Refugee Status
Asylum
Universal Declaration of Human Rights
Article 14:
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
Non-Refoulement
ICJ
:
"normal exercise
of the territorial
sovereignty"
European Charter of Fundamental Rights
Article 18:
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28
July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.
^
State Parties to the 1951 Convention
Article 1: definition of the term “refugee”
A.
For the purposes of the present Convention, the term “refugee”
shall apply to any person who:

(2)
[As a result of events occurring before 1 January 1951

and]
owing to
well- founded fear of being persecuted
for
reasons of race, religion, nationality, membership of a particular social group or political opinion
, is
outside the country of his nationality
and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that country
; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
“(e) Membership of a particular social group”
element of choice + innate quality

similar background, habits or social status
political outlook, antecedents or economic activity
obstacle to the Government's policies
“(f) Political opinion”
political

activity
implicit in the concept of
freedom to hold opinions

motivation? personal gain?
“a well-founded fear of persecution”
=/= criminal prosecution:

persecutory application of a law
excessive or arbitrary punishment
prosecution for Convention reason
law in conformity with human rights standards?
national legislation as yardstick

"Where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution on account of political opinion."
Grava v INS
Article 1:
F. The provisions of this Convention
shall not apply to

any person with respect to whom there are serious reasons for considering that:

(a) he has committed a
crime against peace, a war crime,
or a crime against humanity
, as defined in the inter-national instruments drawn up to make provision in
respect of such crimes;
(b) he has committed a
serious non-political crime
outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of
acts contrary to the purposes
and principles of the United Nations
.

1951 Convention
Article 33: Prohibititon of Expulsion or Return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a
refugee
in
any manner whatsoever
to the frontiers of territories where
his life or freedom would be threatened
on account of his
race,
religion, nationality, membership of a particular social group or political opinion.

Complementary Protection
Convention against Torture, Article 3:
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Customary International Law
state practice + opinio juris


the lengths to which States have gone to characterise their actions as something ‘other’ than refoulement

now largely accepted
the principle that no refugee should be returned to any country where they are likely to face persecution, other ill-treatment, or torture.
International Covenant on Civil and Political Rights, Article 7:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical
or scientific experimentation.
European Convention on Human Rights, Article 3 [+ Art 2]:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
EU Charter of Fundamental Rights, Article 19:
2. No one may be removed, expelled or extradited to a State where there is a serious risk
that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
1951 Geneva Convention Relating to the Status of Refugees
Full transcript