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.