Many lesbian and gay persons live in societies that subject them to severe and gruesome forms of state--sanctioned violence--torture,(1) paramilitary death squads,(2) involuntary "medical" electroshock treatment,(3) police gang rapes,(4) and capital punishment.(5) Not surprisingly, a number of these people have sought refuge in the handful of countries now offering them asylum.(6) In June 1994, the United States officially joined this group of nations through an administrative decision designating sexual orientation as an eligible social group category under U.S. asylum law.(7)
Despite the policy change, lesbian and gay refugees bound for the United States are far from assured of gaining admission. According to U.S. immigration statutes, an asylum applicant must (1) demonstrate past persecution or a well-founded fear of future persecution (2) on account of his or her race, religion, nationality, membership in a particular social group, or political opinion.(8) As a result of the new administrative decision, lesbian and gay refugees can now more assuredly satisfy the second prong's requirement. However, they may still face a difficult legal battle under the first prong's required showing of persecution.(9) Due to a void in precedential guidance and a legal grant of discretion, immigration judges and asylum officers may well consider the claimed injuries too insubstantial to constitute persecution.(10) Two recent immigration court decisions,(11) for instance, held that forced "medical" treatment designed to alter sexual orientation did not rise to the level of persecution.(12)
This Note takes the position that the incorporation of international human rights standards into asylum claims gives needed shape to this currently amorphous standard by focusing on one of the greatest threats facing lesbian and gay refugees: involuntary "medical" intervention.(13) Although current asylum law accepts the use of international human rights instruments in establishing persecution, practitioners rarely invoke them in proceedings. Drawing on the example of involuntary "medical" treatment, I hope to demonstrate how international human rights standards can be employed effectively, and thus to encourage their expanded use in this part of the adjudicatory process.
Part I of this Note traces the doctrinal history of incorporating international human rights principles into asylum determinations of persecution. It details the judicial and legislative acceptance of this method and the possibilities for future extension. Part II argues that subjecting lesbian and gay persons to involuntary "medical" intervention violates the Nuremberg Code's international human rights standards. Part III argues that human rights standards under the Helsinki Accord independently proscribe forced "medical" sexual orientation interventions. In future cases, if sexual orientation asylum applicants establish that the treatment they fear is a violation of international human rights standards, the second prong's persecution requirement should be considered fulfilled and asylum granted.
INCORPORATION OF INTERNATIONAL HUMAN RIGHTS STANDARDS INTO U.S. ASYLUM LAW
Current asylum law accepts the legitimacy of incorporating international human rights standards in resolving determinations of persecution.(14) This acceptance grew, in part, out of the historical context in which the international agreements for the protection of refugees originated. With the Holocaust and other Nazi denials of fundamental freedoms vividly in mind, the United Nations (U.N.) member states designated the promotion of universal human rights as a central goal of their newly established organization.(15) Accordingly, the U.N. General Assembly established the Human Rights Commission, drafted the 1948 Universal Declaration of Human Rights,(16) and enacted a series of other international human rights instruments.(17)
During this period of heightened concern, the U.N. created an international system for the protection of refugees under the 1951 Convention Relating to the Status of Refugees.(18) The Convention allowed its signatories to limit their obligations to those refugee flows resulting from "events occurring in Europe before January 1, 1951,"(19) but the subsequent 1967 Protocol Relating to the Status of Refugees removed all temporal and geographic limitations.(20) Both the Convention and Protocol became binding U.S. law through initial ratification in 1968 and further congressional enactments in 1980.(21)
The Convention's framers declined to codify a definition of the "persecution" from which refugees should be offered asylum. Yet there are two strong indications that international human rights standards were intended to help fill this interpretive void. First, the Convention's preamble introduced the agreement as a measure to protect individuals from violations of the Universal Declaration of Human Rights.(22) Second, the United Nations High Commissioner for Refugees (UNHCR), the organization responsible for supervising and assisting the implementation of the Convention and Protocol, prescribed international human rights standards as a suggested yardstick for determining whether a foreign state practice constitutes "persecution." The UNHCR's advice is found in its main publication, the Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Handbook).(23) The Handbook states that "recourse may usefully be had to the principles set out in various international instruments relating to human rights, in particular the International Covenants on Human Rights, which contain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded."(24)
In asylum cases, U.S. courts often rely on the Handbook for guidance,(25) a practice endorsed by the U.S. Supreme Court in INS v. Cardoza-Fonseca.(26) The Cardoza-Fonseca Court acknowledged that "in interpreting the Protocol's definition of 'refugee' we are further guided by the analysis set forth in the ... [Handbook]."(27) The Court determined that, although the Handbook is not legally binding, it "provides significant guidance in construing the Protocol" and has "been widely considered useful in giving content to the obligations that the Protocol establishes."(28) The persuasive authority of the Handbook and its recommendation that international human rights standards be used to evaluate claims of persecution provide foundational support to the developing judicial and administrative practice of incorporation.(29)
Congressional pronouncements have also evinced support for incorporating international human rights principles into this aspect of asylum law. Such approval appears, for example, in the legislative history of the Holtzman Amendment,(30) which removed the loophole in immigration law that had previously allowed the legal entry of past agents of Nazi persecution.(31) The legislative history demonstrates strong support for the unfolding case law's incorporation of international norms into interpretations of "persecution":
In applying the "persecution" provisions of this bill, it is the intention
of the committee that determinations be made on a case-by-case basis
in accordance with the case law that has developed under the INA
sections heretofore cited, as well as international material on the
subject such as the opinions of the Nuremberg tribunals.(32)
The evolving doctrine of international incorporation, now endorsed by legislative sanction, has found further judicial expression in a succession of asylum decisions. These cases rely on human rights standards set forth in the Nuremberg tribunals,(33) the Universal Declaration of Human Rights,(34) and congressional legislation.(35) INS offices have also embraced the use of international human rights principles in their determinations of persecution.31
Given the willingness of the legal system to incorporate international human rights principles in this area, future sexual orientation claims might be strengthened through the use of such international standards. In the recent case of In re Pitcherskaia, the court denied asylum to a Russian lesbian refugee facing persecution in the form of "medical" interventions--institutionalization, electroshock treatment, and mind-altering drugs.(37) It is a productive exercise to consider whether the initial outcome of In re Pitcherskaia would have been different if this Note's approach had been taken, and we will therefore revisit this question at several points in the Note.(38) The following two parts take up two international human rights instruments, the Nuremberg Code and the Helsinki Accord, respectively, and apply their standards to cases of involuntary "medical" intervention. My selection of these human rights instruments and this form of persecution is meant to be illustrative rather than exhaustive.(39)
HISTORICAL UNDERPINNINGS OF THE REFUGEE CONVENTION AND THE NUREMBERG CODE
Nazi Germany's use of involuntary "medical" practices as a form of persecution is highly relevant to the present asylum claims of many lesbian and gay refugees. First, these practices, as part and parcel of "the events occurring in Europe before 1 January 1951,"(40) helped produce and hence were covered under the 1951 Refugee Convention. Second, these practices received extensive review by the Nuremberg Tribunal. As such, the discussion of these practices constituted a relatively major section of the Nuremberg Code, establishing new human rights norms for "medical" procedures perpetrated on unwilling subjects. Consequently, two separate foundations exist for considering involuntary "medical" procedures as a form of persecution under asylum law: (1) correlations between historical conditions underpinning the 1951 Refugee Convention and current forms of persecution; and (2) applicable provisions of the...