Briddick’s discussion was focused on the application of the EU’s common asylum system to women who have experienced, or who are at risk of, gender-based persecution. Relevant to EU law are a range of international legal instruments, including the 1951 Refugee Convention, the Istanbul Convention, and European Convention on Human Rights. Article 78 (1) of the Treaty of the Functioning of the European Union further provides for the development of a common policy on asylum, subsidiary protection and temporary protection. According to Briddick, however, the EU Directive 2011/95/EU excludes EU citizens. The definition of a ‘particular social group’ is also textually narrowed, and grounds for exclusion are expanded.Under EU law, ‘particular social group’, which may refer to women or persons part of the LGBTQ community, needs to satisfy two criteria: (1) members of that group share an innate characteristic and common background that cannot be changed or a belief for which its members cannot be forced to renounce and (2) the group has a distinct identity because it is perceived as such by the surrounding society. These criteria are based on UNHCR guidelines. However, the original definition of ‘particular social group’ in the guidelines requires the satisfaction of the first or the second criterion, not of both at the same time. It is precisely this approach, according to Briddick, that restricts the application of the common asylum policy to women suffering from gender-based violence and effects members of the LGBTQ community.
Briddick further focused on two recent cases before the Court of Justice of the EU. In the first case, the Court argued that a person who is being corruptly persecuted for protecting his material and personal interests may be persecuted for his political opinion. In the second case, the Advocate General maintained that anti-patriarchal views could be political, but only when the state that is suppressing the women based on the views thinks that they are political in nature. Instead, the young women’s commitment to gender equality went to their membership of a particular social group. Therefore, whether or not an opinion is considered political depends on the gendered or racialised body of the person who holds it, according to Briddick.
Haines discussed the lack of a clear guidelines for the protection of human rights at sea. Given the jurisdictional challenges that stem from the flag of the vessel, the nationality of the crew, and the country in which the vessel’s port of call is located, violations of human rights at sea are seldom prosecuted, according to him. He outlined the case of an alleged rape of a British female aged 17, and, therefore, a minor, by an 18 year old Italian male on board a Panamanian registered cruise ship on the high seas in the Western Mediterranean to illustrate the issues at hand. The gravity of the situation and the need for protection of human rights at sea becomes even more significant since at any time there are approximately 30 million people at sea. Haines further contented that most intrnational human rights NGOs are focused on the situations within states and do not focus on the high seas in the same way. The NGO Human Rights at Sea has the specific and deliberate aim of ensuring that human rights violations at sea do get publicity and generate a response.
Together with a group of prominent international law experts, Haines drafted the Geneva Declaration of Human Rights at Sea. The purpose of this document is to provide a comprehensive set of provisions that would help countries to commit to protection of human rights at sea. The document was reviewed during 2020-2021 before being approved in its final version under the auspices of the non-governmental organisation Human Rights at Sea of which Haines is a Trustee. It includes provisions that are based on existing international conventions on labour law, maritime law, human rights law, refugee law, and law on the seas, as well as three annexes: (1) human rights violations; (2) human rights instruments; (3) guidelines to promote compliance with human rights at sea.
The discussion following the two presentations focused on the challenges for getting support for the Geneva Declaration on Human Rights at Sea and those related to the application of EU refugee protection provisions in cases of domestic violence. Responding to the questions, Haines described a rather challenging process to get support for human rights at sea, since it is not on the policy agenda of most governments. He nevertheless emphasised that his purpose was to engage states that are more sympathetic to the idea, as well as international organisations. Briddick explained briefly the contexts in which gender-based violence cases may constitute reasonable grounds to be provided refugee protection, and the implications for European identity of the application of EU common asylum policy.
By Alban Dafa (ESC Research Assistant, St Antony's College, Oxford)
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