Asylum is a legal remedy available to those seeking protection from persecution in their nation of origin and its practice is a large part of the functioning of many states. The central instruments governing the obligations of nations to the standards of international law are the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, which stipulate in their definition of 'refuge' the five grounds upon which a claim to asylum may be made: race, religion, nationality, membership of a particular social group, and political opinion. This thesis is solely concerned with the category of 'social group.' The question of persecution on the basis of sexual orientation and the consideration of homosexuals as a 'social group' have been addressed in many asylum destinations, including the United States and the European Union. The United States stands today as a top choice for persecuted homosexuals and has practiced sexual orientation-based asylum since the early 1990s, effectively establishing it as a legally-recognized claim with the domain of asylum law. Contrastingly, in the European Union, the formation of the Common European Asylum System (CEAS) has not directly addressed the question of permitting sexual orientation to be included as a covered ground for safety under the 'social group' category. At present, sexual orientation is considered a potentially valid claim to asylum and it is in no way legitimized by the varied practices of the Member States. The nations of the EU have been reluctant to cede their sovereignty for the advancement of the harmonization project, which has continued to be founded on minimal standards, and restrictive applications of the CEAS legislation hinder persecuted homosexuals from receiving protection. This thesis will posit that the European Union needs to apply statutory settings to social groups, such as homosexuals, as has been done in the U.S. Providing a more conceivable chance of protection for persecuted homosexuals in the EU can be accomplished through the modification of existing CEAS legislation and, more poignantly, through the buildup of much-needed case law which would force beneficial change. The European Union can take as an example the asylum history of the United States, which demonstrates the effective manner in which the court system and legal circuits were used to provide a proper, open reading of the Convention and to allow for the accrual of an essential and large body of jurisprudence on the matter of sexual orientation-based asylum.
|School:||The American University of Paris (France)|
|Source:||MAI 56/02M(E), Masters Abstracts International|
|Subjects:||LGBTQ studies, International law|
|Keywords:||Asylum, European Union, Sexual orientation, United States|
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