By Katie VloetApril 20, 2015
The 1951 Refugee Convention defines a refugee as someone who has a well-founded fear of being persecuted based on one of five factors, including his or her political opinion. But what constitutes a political opinion?
A high-profile group of judges and academics gathered at the University of Michigan Law School recently to develop guidelines for this unsettled area of refugee law.
"It sounds pretty straightforward, but it really gets messy when you think about the kinds of cases that get argued," said James C. Hathaway, the James E. and Sarah A. Degan Professor of Law at Michigan and director of the Program in Refugee and Asylum Law, which hosted the Colloquium on Challenges in International Refugee Law.
(The 2015 Michigan Guidelines on Risk for Reasons of Political Opinion.)
For example, if a woman says to an abusive husband, "I won’t let you hit me anymore," is she implicitly expressing a political opinion that women are deserving of equal respect? Does opposition to China’s one-child policy constitute political opinion? Should whistleblowers be given refugee status? "Those are complicated questions, and the answer will vary depending upon the cultural filter through which the person’s situation is viewed," said Hathaway.
Now, Colloquium participants and Michigan Law students are drafting and revising the political opinion installment of what are known as the Michigan Guidelines on the International Protection of Refugees. The six previous Colloquia each produced a unanimously agreed-upon set of recommendations related to asylum and refugee law. The Guidelines, which are published in English, French, Russian, and Arabic, are frequently cited by courts around the world and help shape the way judges, lawyers, and other decision-makers look at a refugee issue.
"It’s an excellent process, particularly due to the inclusion of judges as well as academics. As a result, the Michigan Guidelines have become quite influential," said Judge Hugo Storey, an Upper Tribunal Judge, Immigration and Asylum Chamber, in the United Kingdom, and president of the European Chapter of the International Association of Refugee Law Judges. Storey, a participant in this year’s Colloquium, said that over the years UK courts and tribunals had discussed and debated the Michigan Guidelines numerous times.
Participants this year discussed many issues during their three days of in-person meetings in Ann Arbor. Among them: Should traditional definitions of the political that focus on the state be expanded to cover other groups, such as guerillas or the mafia, that can have as much influence as the established government? How should the line be drawn between people who are clearly at risk because of, say, warring factions, versus those who are at risk specifically because of their political opinion?
“We are hoping to create a new, common starting point that will provide some clarity and a platform from which decisionmakers and judiciaries can work,” said Colloquium participant Thomas Gammeltoft-Hansen, research director of the Danish Institute for Human Rights and a member of the Danish Refugee Appeals Board.
The definition that the Michigan Guidelines is developing will, out of necessity, seek to define a finite beneficiary class, Hathaway said. "The point of refugee law isn’t to give every person who might be harmed a safe place to live. I wish it were," he said. "But becoming a refugee is a hugely special status, and we don’t want to erode what we can give to refugees by expanding the definition beyond what is reasonable."
University of Melbourne Faculty of Law Professorial Fellow Susan Kneebone, a Colloquium participant, said that any exploration of how to define "political opinion" relies upon making judgments. "At the end of the day, we’re talking about people judging other people," said Kneebone, the author or editor of several books about refugee law and related topics. “It’s also about making judgments about the politics of a state, which is something we all approach so differently."
That’s why, Hathaway said, it is so important to come up with uniform guidelines. "We want to make the Michigan Guidelines very accessible and easy for, say, a busy judge to refer to without difficulty," he said.
If the widespread usage of the previous six sets of Michigan Guidelines serves as a model, that’s exactly what will happen. And that’s the appeal of being part of the Colloquium, participants say: the rapid creation of an influential and groundbreaking blueprint for refugee cases all over the world.
"I’ve always appreciated that the Michigan Guidelines are not just some ivory-tower product," said Gammeltoft-Hansen. "It’s a unique and fruitful opportunity to be a part of something that lives far beyond the walls of an academic institution."
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