The Right Not To Hold a Political Opinion: Implications for Asylum in the United States and the United Kingdom

This Article analyzes the vastly different approaches taken by the United States Supreme Court and the Supreme Court of the United Kingdom toward asylum claims based on political neutrality. In the recent case of RT (Zimbabwe) v. Secretary of State for the Home Department (UKSC 38 (2012)), the U.K. Supreme Court ruled in favor of several apolitical Zimbabweans who sought asylum in the United Kingdom on the grounds that they would be tortured if they refused to swear allegiance to the Mugabe regime if deported. This case stands in stark contrast to the U.S. Supreme Court decision in INS v. EliasZacarias (502 U.S. 478 (1992)), which denied asylum to an apolitical Guatemalan man who fled to the United States after resisting the recruitment efforts of guerillas fighting a civil war against the government. This Article uses these two seminal cases to illustrate the wide gulf between U.S. and U.K. jurisprudence in their reliance on * University of Minnesota Law School. Many thanks to University of Minnesota Foreign, Comparative & International Law Librarian Mary Rumsey for her numerous insights and suggestions, as well as to University of Minnesota Law School students Anu Jaswal (’15) and Eleanor Lewis (’14) for their excellent research assistance. I received helpful comments on earlier versions of this article from Alex Aleinikoff, June Carbone, Ben Casper, Carol Chomsky, Jessica Clarke, Katherine Evans, Timothy Garton-Ash, Jennie Green, James Hathaway, Neha Jain, Elizabeth Keyes, Meghan Heesch, Claire Hill, Fatma Marouf, Bill McGeveran, Fred Morrison, Karen Musalo, Michele Pistone, Chris Roberts, Daniel Schwartz, Francis Shen, Laura Thomas, Diane Uchimiya, and David Wippman. Finally, I am indebted to my Administrative Assistant Jean Wells for her indefatigable logistical support. 2 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.3:1 international human rights norms and foreign law. In RT (Zimbabwe), the U.K. Supreme Court referenced numerous human rights treaties, as well as the jurisprudence of several common law countries (including the United States) in holding that those who choose not to express a political opinion—for whatever reason—are entitled to the same protection from persecution that extends to the politically active and vocal. In Elias-Zacarias, on the other hand, the U.S. Supreme Court did not cite any international or foreign law. Its decision was based entirely on statutory interpretation of the U.S. law governing asylum. This Article contributes to the literature on the human rights approach to asylum law, which argues that domestic courts considering asylum claims should be guided by the norms promoted in human rights treaties. RT (Zimbabwe) embraces this approach; EliasZacarias ignores it. This contrast begs the question that this article interrogates: does the human rights approach to asylum law make a difference to asylum-seekers? It approaches this question through a counterfactual analysis: would Mr. Elias-Zacarias have obtained asylum before the U.K. Supreme Court, and how would the claimants in RT (Zimbabwe) have fared before the U.S. Supreme Court? In addition, this Article suggests how U.S. courts might rely on the rulings of their sister signatories to the 1951 Convention relating to the Status of Refugees in ways that would promote a uniform interpretation of that treaty across national borders. It also suggests ways that lawyers representing refugees in the United States might utilize a human rights-based approach to refugee law to benefit clients. And finally, it considers whether one of the factors contributing to the effectiveness of human rights treaties is the adoption of the human rights approach to asylum law by the domestic courts of a ratifying country.