UCLA Journal of International Law and Foreign Affairs

Members of sexual orientation and gender identity (SOGI) minorities escaping persecution may apply for asylum or bring up their SOGI in asylum procedures later than expected by authorities for a variety of reasons, including fear, shame, and ignorance. Using a Foucauldian lens—in particular the notions of power and confession—this Article assesses how such instances of so-called late disclosure are regulated and treated by statutes, policy guidance, and case law, with a focus on the European context. The Article also considers in detail claimants’ experiences with late disclosures, and the views of both claimants and several other actors in the asylum system on this matter. The analysis concentrates on an extensive body of secondary data (including international, European, and domestic case law, policy documents, NGO reports, case files, etc.) as well as of primary data collected in Germany, Italy, and the United Kingdom (UK) at European Union (EU) and Council of Europe levels. The primary data was collected through semi-structured interviews and online surveys with a range of stakeholders, focus groups with SOGI asylum claimants and refugees, observations of asylum appeals, and Freedom of Information requests. The Article thus offers an empirically and theoretically informed critique of late disclosures in SOGI asylum claims in Europe and puts forward recommendations to ameliorate the fear and injustice experienced by SOGI refugees while navigating an asylum system that is stacked against them in so many respects.

Over the past few years, Greece has been fighting to keep migrants from entering the country, accusing them of treating it as a gateway to the rest of Europe. Especially since the Taliban took control of Afghanistan, Greek officials have been adamant that they will not permit a repeat of the 2015 refugee crisis, in which the number of migrants seeking asylum in Europe surged from less than 600,000 in 2014 to over 1.3 million in 2015 and where over 3500 migrants and refugees diedtrying to cross the Mediterranean Sea. This Article analyzes whether Greece’s migration policies and practices—specifically, its operation of refugee camps and its alleged practice of pushbacks—violate international law. It analyzes: (1) whether Greek actors are violating the Rome Statute by committing crimes against humanity of murder, deportation, and torture; and (2) whether Greece is violating its obligations from the 1951 Convention of the Status of Refugees (Refugee Convention), in particular Articles 21, 26, 31, 32, and 33 regarding housing, freedom of movement for lawful refugees, freedom of movement for unlawful refugees, expulsion, and refoulement respectively.

The international community is currently in the process of establishing multiple frameworks for protecting the traditional knowledge (TK) of indigenous peoples including through initiatives such as the Nagoya Protocol (under the Convention on Biological Diversity (CBD)), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGCIPGRTKF) under the World Intellectual Property Rights Organizations (WIPO). However, this Article conceptualizes alternate pathways to recognize and protect the right to TK within customary international law (CIL). As a starting point of analysis, the Article uses Third World Approaches to International Law (TWAIL) to investigate the reasons for the inadequate protection of indigenous peoples’ traditional knowledge. Specifically, it explores how postcolonial states, often at the behest of the First World, have perpetuated colonial epistemologies that have contributed to the creation of deficient standards of protection for indigenous and tribal communities. As a rule, CIL is ascertained through the inclusion of traditional knowledge within its scope. To explore the legal basis of these norm developments in international law, this Article will delve into their pronouncements in international treaties such as the International Covenant on Civil and Political Rights (ICCPR) the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Indigenous and Tribal Peoples Convention (ILO-169), as well as relevant holdings by international courts that help clarify the customary character of the norms in question. inductive reasoning. That is, to establish the existence of a novel customary rule, it is necessary to show that there is widespread, representative, and uniform state practice, coupled with the belief that the rule constitutes a legal obligation. However, this Article explores whether a deductively implied propositional rule derived from the relationship between two interrelated customary norms ought to be deemed a novel precept of CIL in the context of human rights protections for indigenous peoples. In doing so, this Article will investigate the two related norms: the right to culture for indigenous communities, and the inclusion of traditional knowledge within its scope. To explore the legal basis of these norm developments in international law, this Article will delve into their pronouncements in international treaties such as the International Covenant on Civil and Political Rights (ICCPR) the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Indigenous and Tribal Peoples Convention (ILO-169), as well as relevant holdings by international courts that help clarify the customary character of the norms in question.