Defining a Particular Social Group Based on the Meaning of Non-Discrimination in International Human Rights Law: Utilizing the Definition in Deciding Refugee Claims Based on Sexual Orientation
10 Pages Posted: 4 May 2015
Date Written: April 23, 2015
In his article titled: "Divorcing sexual orientation from religion and politics: Utilizing the Convention grounds of religion and political opinion in same-sex oriented asylum claims", Braimah argues that of the two approaches in interpreting membership of a particular social group, the ejusdem generis interpretation appears to be more suitable than the social perception approach. This is because; the latter is based on the principles of non-discrimination, which is in line with the object and purpose of the Convention. Nonetheless, while the US courts in Matter of Acosta got it right that the interpretation of a particular social group should be anchored to non-discrimination, what they got wrong is what non-discrimination was translated into. The US courts, by translating non-discrimination into innateness/fundamental to identity, deviated from the actual meaning of nondiscrimination in international law. It is against this backdrop that this article focuses on researching the meaning of nondiscrimination in international law to define a particular social group. The contribution of this article to the field of international refugee law is of two folds.
Keywords: Sexual orientation, refugee, same-sex oriented refugee, Matter of Acosta, discrimination
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