Protecting the Human Rights of people living with HIV/AIDS: A European approach?

HIV/AIDS is a medical matter as well as a human rights issue. Recent developments in the interpretation of the European Convention on Human Rights (ECHR) have contributed to better define the level of protection that people living with HIV/AIDS may currently derive from it. Thanks to the recognition of the condition of vulnerability suffered by this group, the European Court of Human Rights (ECtHR) has been able to apply the non-discrimination complementary provision (Article 14) to contrast the social stigma and prejudice associated with HIV/AIDS in Europe and, in some situations, to develop positive obligations. A different restrictive approach has been adopted towards a specific part of the ECHR, that is the prohibition of refoulement. While this approach can be reassessed, taking into account the interpretation of the ECHR as a \u2018living instrument\u2019 and the necessity to read the ECHR as a coherent whole, recently the European Court of Justice has expressly referred to it to define the level of protection provided by European Union (EU) law to people living with HIV/AIDS in the field of migration. As a result, it reinforced the emerging divide between substantial guarantees and procedural obligations, which grant a wide protection pending expulsion and are defined in light of the special needs of people living with the infection, as required by a vulnerability approach. If a common \u2018European approach\u2019 to the issue of HIV/AIDS and human rights is thus emerging, until now it seems to have been guided by conflicting views. At the same time, in relation to some issues, the mutual influence between ECHR and EU law has served to narrow the protection to people living with HIV/AIDS instead of setting higher standards through an inclusive interpretation of human rights. This article explores a human rights-based approach to HIV/AIDS and whether the emerging European attitude matches it or not. While it calls for enhancing the role of vulnerability in the interpretation of the fundamental rights catalogue taken as a whole, it investigates the possible evolution within the two European systems of protection when the needs of this specific group are at stake, especially in the fields of non-discrimination and migration. The result does not provide given solutions but suggests a methodology for a consistent and genuine \u2018European approach\u2019 which, in turn, may positively influence the evolution of the international response to HIV/AIDS

Promoting human rights through the EU external action: an empty “vessel” for sexual minorities?

Sexual minorities’ rights are increasingly included in the EU internal as well as external agenda. While the EU normative framework and its internal developments seem to be dominated by the value of equality, doubts arise on the rationale underlying the EU external action. All institutions are indeed involved in this field. While the Commission is called to monitor issues relating to sexual orientation and gender identity in accession countries, the Council has issued specific Guidelines and the EU Parliament has in turn raised specific concerns in its dialogue with African partners. Although these attempts are welcomed for stressing the need to protect a ‘vulnerable’ group in countries where they have no guarantees, a ‘selective’ non-discrimination approach seems to emerge in most actions having an external dimension. This approach contradicts the EU internal developments and may eventually risk being ineffective and counterproductive for targeted people. Considering the international trend in human rights law towards the recognition of the full spectrum of human rights irrespective of one’s sexual orientation or gender identity, this article posits the need for a significant change in the EU external approach in this field

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)?

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 qualitative 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

Preventing torture and controlling irregular immigration - The role of the European Committee for the Prevention of Torture and its activity in Italy

The measures adopted by many European States to control migratory flows do not always conform to international law. The European Committee for the Prevention of Torture and inhuman or degrading treatment or punishment (CPT) has paid special attention to the treatment of migrants, as demonstrated by the composition of a number of standards with which States Parties to the European Convention for the Prevention of Torture must comply. Effective action in this context is indispensable for the prevention of torture in view of the warnings international institutions have issued to Italy regarding management of immigration. In addition to the often precarious conditions of the centres in which immigrants are held, in recent months there has been an additional problem in the form of rejection in the Sicilian Channel: right of asylum and refugee status are, in effect, being denied to people who meet the conditions of the 1951 Geneva Convention on Refugees. Others are being sent back to places where there is a real risk that they will be tortured, in violation of the non-refoulement principle. The CPT’s extensive experience puts it in strong position to promote even more incisive action aimed at preventing the torture of immigrants and affording them additional protections that prevent them from being deprived of their liberty in conditions that amount to ill-treatment

State secrets, impunity and human rights violations: prosecution restricted in the Abu Omar case

On 17 February 2011, political refugee Abu Omar was abducted from Italian territory and transferred to Egypt where he remained in detention until 2007. During Abu Omar\u2018s trial, the Italian Government invoked the State secrets privilege to suppress information regarding Abu Omar\u2018s abduction and rendition. The Abu Omar case demonstrates the risks inherent in the potential for abuse of the invocation of State secrets and underscores the need to impose limitations on the scope of its application. There is reason to think that, as a general matter in times of crisis, we will overestimate our security needs and discount the value of liberty\u2018. The State secrets privilege must not be used as a mechanism for escaping accountability for failing to meet international human rights standards in relation to accused persons. This article explores how this principle is reflected in a judgment regarding the US extraordinary rendition programme issued by an Italian judge who prosecuted several of the liable agents and provides recommendations on improving accountability and transparency when State secrets are at issue in future cases

What 'Safe Harbours' are there for sexual orientation and gender identity asylum claims? A human rights reading of international law of the sea and refugee law

In the context of the current Mediterranean ‘crisis’, which led to closed harbours to migrants headed to Europe, this paper analyses what a ‘safe harbour’ really means for people claiming asylum on SOGI grounds. To this purpose, it carries out a human rights reading of relevant rules of the international law of the sea and of refugee law, looking also at the extraterritorial application of human rights obligations. Trying to fill a gap in the literature in these fields, it argues that, in light of their migratory experience, granting a ‘safe harbour’ to SOGI claimants requires a more comprehensive reading of the connected notion of ‘place of safety’, at least in terms of routes, destinations and receptions. In particular, if implemented in an effective way and with due diligence, the relevant negative and positive obligations biding EU Member States and the EU may ensure an immediate improvement for this group of claimants' experience during their travel to, and arrival in, Europe

Brexit, sexual orientation and gender identity: what about the people? The UK in a Changing Europe [Weblog article, 20 November 2018]

Slowly, but surely, awareness is increasing about the possible impact of Brexit on individuals who identify, or are identified as, members of minorities based on their sexual orientation or gender identity (SOGI). After explorations of this theme by Wintemute and by us, Cooper, Cooper et al., and the Trade Union Congress all alerted people to the potentially detrimental effect that Brexit may have on SOGI minorities. It is critical to note that these SOGI minorities are far from monolithic, and any potential impact of Brexit for them will be different at a sub-group and even at an individual level. Broad-brush, abstract policy analyses on this theme – as on any other theme – fail to capture the essentially individual nature of the relationship between SOGI minorities and Brexit, as one of the most divisive and hotly contested topics in British society for many decades. In this short piece, we wish to delve into that individuality, bringing to the fore just some of the voices within the ‘SOGI minorities’ umbrella and listening to their concerns, fears and hopes in relation to Brexit – both specifically related to their identity and more generally about life after Brexit

Legal violence and (in)visible families: how law shapes and erases family life in SOGI asylum in Europe

Studies on the Refugee Convention have paid very limited attention to the notion of family and family rights of asylum claimants in connection with asylum claims based on sexual orientation and gender identity (SOGI). Drawing on the notion of ‘legal violence’, this article demonstrates the injurious cumulative effect that a heteronormative, homonormative and Western-centered formulation and implementation of asylum and refugee law has on SOGI claimants when it comes to intimate and family relationships. By relying on a solid body of primary and secondary data, it explores the invisibility of SOGI claimants and refugees’ families and how that invisibility is normalized by European legal frameworks, such as the Dublin (III) Regulation and Family Reunification Directive. To end this ‘legal violence’ and reconnect asylum systems with the lived experiences of SOGI claimants, a principled approach based on human rights and specifically the right to respect for family life is suggested

The reform of the Common European Asylum System: fifteen recommendations from a sexual orientation and gender identity perspective

Since the 1990s, the European Union (EU) has slowly developed an increasingly sophisticated body of asylum law and policy, known as the Common European Asylum System (CEAS). This framework – both in the shape of legislative instruments and case law – has inevitably also affected those asylum seekers who claim asylum on the basis of sexual orientation and/or gender identity (SOGI). This has been vividly demonstrated by particular norms in EU asylum instruments and judgments of the Court of Justice of EU (CJEU). The current CEAS can be said to have several shortcomings in relation to SOGI claims, including in relation to: country of origin information; the notion of ‘safe country of origin’; the burden of proof and the principle of benefit of the doubt; the concept of a ‘particular social group’; and the definition of persecution. A new set of proposals for reform of the CEAS was put forward in 2016 by the European Commission, and these also affect SOGI asylum claims in precise and acute ways. This policy brief scrutinises these proposals of reform, and assesses the extent to which these proposals and different institutional positions address, ignore or aggravate the issues that currently affect asylum seekers who identify as LGBTI (lesbian, gay, bisexual, trans and intersex). The policy brief makes fifteen recommendations for European policymakers in regards to the reform of the CEAS, in order to ensure that the needs of LGBTI asylum seekers and refugees are effectively addressed and their rights are respected. Academics from the University of Sussex working on the Sexual Orientation and Gender Identity Claims of Asylum (SOGICA) project, funded by the European Research Council, are calling for policymakers to implement these recommendations in order to render the CEAS fairer for SOGI asylum seekers

Anche i rifugiati transgender hanno diritto al cambio del nome: un passo avanti nel riconoscimento dei bisogni dei richiedenti e rifugiati SOGI in ambito CEDU

Con la sua prima decisione riguardante il trattamento di coloro che hanno ottenuto lo status di rifugiato, ai sensi dell’art. 1(2) della Convenzione di Ginevra del 1951, in ragione della loro identità di genere, la Corte europea dei diritti umani (Corte EDU) ha adottato una posizione chiara a loro tutela. L’esame del caso Rana c. Ungheria (16 luglio 2020, no. 40888/17) risulta infatti fortemente ispirato tanto dal principio di eguaglianza e non discriminazione quanto dalla necessità che gli Stati europei garantiscano una protezione effettiva dei diritti sanciti nella Cedu e non illusori. L’azione dinanzi la Corte europea è stata avviata da un cittadino iraniano che, seppur nata donna, si era da sempre riconosciuto e comportato come uomo in Iran. Giunto in Europa, otteneva lo status di rifugiato in Ungheria proprio per la persecuzione temuta in base alla sua identità di genere. Poco dopo, il sig. Rana richiedeva alle autorità ungheresi competenti in materia di immigrazione di poter modificare il suo nome e il suo genere nei documenti di identità in maniera che potessero corrispondere alla sua reale identità di genere. Stabilendo che solo lo Stato di origine dei rifugiati poteva essere competente in materia di atti di nascita, le autorità ungheresi rigettavano tale richiesta. Tuttavia, chiamata a esprimersi sul caso, la Corte costituzionale ungherese intimava il legislatore di quel Paese a modificare il quadro giuridico esistente in modo da non escludere dalla procedura di modifica del nome coloro che, pur non essendo nati in Ungheria, vi risiedono. A suo avviso, tale riforma appariva necessaria per poter garantire un diritto fondamentale – quello al nome – che, specie ove segue l’affermazione di genere, ha un impatto diretto sull’identità e la dignità personale. Del resto, come aveva argomentato il sig. Rana dinanzi la Corte Edu, la mancata registrazione della nascita in Ungheria non poteva ritenersi un ostacolo insormontabile non potendo ragionevolmente essergli richiesto di rivolgersi per ottenere nuovi documenti alle stesse autorità iraniane dalle quali era fuggito