When to be silent is to speak

Stephen Meili examines the contrasting UK and US treatment of people who refuse to declare a political allegiance.

The right to hold political opinions – axiomatic in western liberal democracies – is enshrined in instruments ranging from the American Bill of Rights to the European Convention on Human Rights. But what about the right not to hold a political opinion? In most situations people can choose to be agnostic on the issues of the day with few repercussions. Elsewhere, however, political neutrality can be a reason to imprison those who refuse to swear allegiance to a political regime or other powerful entity. The question is, should asylum be available to those threatened with such persecution?

The UK Supreme Court was confronted with this issue in the case of RT Zimbabwe v Secretary of State for the Home Department. The case, decided in July 2012, involved several apolitical Zimbabweans who sought asylum in the UK on the grounds that they might face murder, rape or other forms of violence if they refused to swear allegiance to the Mugabe regime upon returning to that country.  The Home Secretary argued that the applicants were not entitled to asylum because their political neutrality was a matter of indifference rather than commitment.

The Supreme Court disagreed, ruling that the 1951 Convention relating to the Status of Refugees and the European Convention on Human Rights protect the right not to hold an opinion just as strongly as the right to hold one.  The court also rejected the distinction between “a person who is a conscientious or committed political neutral and a person who has given no thought to political matters because the subject simply is of no interest to him.”

RT Zimbabwe stands in stark contrast to the 1991 US Supreme Court decision in INS v Elias- Zacarias.  Elias-Zacarias fled Guatemala for America in 1987 after guerillas unsuccessfully attempted to recruit him, using thinly veiled threats to his life in the process. He supported neither side in the conflict, but felt the guerillas would retaliate for his refusal to join them. The US Supreme Court, in an opinion by Justice Scalia, held that Elias-Zacarias had not presented sufficient evidence to demonstrate that the guerillas would persecute him upon his return to Guatemala because of his political beliefs.

While the decision has been roundly criticised over the years for requiring such a high level of proof, it is also notable for refusing to recognise that an asylum claim can be based on a fear of persecution for the lack of a political opinion. Justice Scalia rejected Elias-Zacarias’ contention that not taking sides with a political faction is itself the affirmative expression of a political opinion, holding that such conduct is ordinarily indistinguishable from “indifference, indecisiveness, and risk averseness.” Justice Scalia’s opinion thus mirrors the Secretary of State’s argument in RT Zimbabwe.

Justice Scalia’s reasoning here is particularly suspect, given the well-entrenched principle in US law guaranteeing the right to refrain from expressing allegiance to the government. For example, in the landmark decision in West Virginia Board of Education v. Barnette (1933), the Supreme Court had held that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force”.  Indeed, in an ironic twist, the UK Supreme Court cited this very passage in granting asylum to the applicants in RT Zimbabwe.

Comparison between RT Zimbabwe and Elias Zacarias is more than a mere academic exercise. It demonstrates the manner in which human rights treaties can make the difference between life and death: the decision in RT Zimbabwe was based, in part, on the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which have been interpreted to include the right to refrain from expressing thoughts.

Given the aversion to international law expressed by many members of the US Supreme Court (Justice Scalia once characterised international human rights law as the new “brooding omnipresence in the sky”), it is not surprising that the Elias-Zacarias court failed to rely on international instruments like the ICCPR, which has been ratified but never incorporated into American domestic law. International human rights law, including the ICCPR, suggests that “political opinion” includes the lack of a political opinion. The UK Supreme Court’s reliance on this area of law helped the applicants in RT Zimbabwe receive asylum. The US Supreme Court’s failure to reference international law contributed to Elias-Zacarias’ unfortunate fate.

Stephen Meili is a Supervising Attorney and Professor at the University of Minnesota Law School.

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Comments (1)

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  1. The Cruel Reality

    My fellow writer and I were very interested in your topic and your argument, We come from a small town called Wassenaar in The Netherlands and attend the American School of the Hague. We were both interested on political asylum policies in the US, UK and our home country, the Netherlands. We found some intriguing facts about our own country and hope to enlighten you with them.
    In your article, you stated that the UK Supreme Court accepted political asylum to the UK in grounds that there wasn’t substantial evidence on the grounds that the RT Zimbabwean was claiming. The US Supreme Court dealt with the Elias-Zacarias and felt that there wasn’t substantial evidence.
    Unlike how the US responded to a similar case, I agree with UK’s response. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty can prescribe what shall be orthodox in politics,nationalism, religion, or the matters of opinion or force”. This is the reason why the US Supreme Court denied asylum to Elias-Zacarias, contrary, this is the reason why the UK Supreme Court allowed asylum to applicants in RT Zimbabwe. For the applicants to refrain from having a political opinion in Zimbabwe seems logical if there is no right choice. According to Article 5 of the European Convention of Human rights, people have the right to freedom of expression, allowing you to say and write what you think. If a life hangs in the balance of the simple notion of accepting a refugee, it should be a quick choice of what to do. If you deny access to your country, they will die. I completely agree with the reasoning behind the UK Supreme Court’s decision. The UK’s decision was based on the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).
    I think that the lack of reference to the international law shows the ignorance of the US supreme court in the case of Zacharias and was the key difference between life and death.
    We believe more in the right to have political asylum and following the human rights which the ICCPR and the UN declaration of human rights suggest. The fact is that Zacharias chose not to take a side, and we take a stance that this is a political opinion and the US had no right to believe otherwise. Throughout the years, the Netherlands has become stricter with its asylum laws. Recently with the issues of homosexuals in Russia, the Dutch Foreign Minister made a statement saying that the Netherlands will not be offering asylum to the homosexuals, as they are not being prosecuted. We were curious about how political asylum worked in the Netherlands and after researching it, we couldn’t find if the Netherlands Immigration had a policy saying: if a refugee does not pledge allegiance the country he/she will not be granted asylum to the country. We found that on the Immigration website, there was no condition saying that without pledging allegiance, you would be denied access, so can we assume that this does not apply to the Netherlands?
    With the US not even taking into account the ICCPR and the UN declaration of human rights, we prefer the policies both in the Netherlands and the UK. It is true that countries do not have to allow asylum on the basis that you have turned on your home country’s government. However, if the matter is life and death, we believe that countries should take a more in depth consideration towards the people seeking political refuge, taking this into account we think that the lack of reference to the international law shows the ignorance of the US supreme court in the case of Zacharias and was the key difference between life and death.

    In conclusion, the UK’s ability to reference the UN declaration of human rights and the granting asylum to the applicants in Zimbabwe, shows great contrast towards the US supreme court’s motive to not accept Zacharias into the US under the lack of evidence and political opinion. However, the US’ failure to reference the international law shows a key difference between the UK and US supreme court and shows that the US must become more involved with the several human rights laws including the ICCPR and the UN declaration of human rights, and should be implemented into the American domestic law. Does the absence of mentioning the pledging of allegiance to the Netherlands mean that it is not a crucial point in the granting of political asylum?

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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