Persecution, International Refugee Law and Refugees

A Feminist Approach

Mathilde Crépin

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000097429
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the ambit of the notion of persecution in international law and its relevance in the current geopolitical context, more specifically for refugee women.

The work analyses different models for interpreting the notion of persecution in international refugee law through a comparative lens. In particular, a feminist approach to refugee law is adopted to determine to what extent the notion of persecution can apply to gender related forms of violence and what are the challenges in doing so. It proposes an interpretive model that would encourage decision makers to interpret the notion of persecution in a manner that is sufficiently protective and relevant to the profiles of refugees in the 21st century, most particularly to refugee women.

The book will be of interest to academics and students in the field of public international law, international human rights law, international humanitarian law, immigration law, European law, and refugee law as well as those working in the areas of international relations.

1 The notion of persecution, historical background and interpretive challenges in the 21^st century

The international definition of a refugee was developed in 1951 in Europe in order to determine who was eligible for asylum in the aftermath of World War II. However, to define who is a ‘refugee’ is to restrict the number of people entitled to protection and to exclude those who do not meet the criteria of the Convention. In this sense, the development of a generic definition sets clear ‘boundaries or limits’¹ to the category of people who could receive assistance in Europe. In particular, authors pointed out that the plenipotentiaries ‘privilege(d) particular concepts’² more than others to define the contours of the states’ international engagements. One might therefore wonder how refugeehood was conceptualised in this period and for which reasons. In fact, as noted by Juss, the fundamental question should not be ‘who is a refugee’ but ‘whose refugee’³ are we talking about and ‘why do we define [refugees] the way we do?’⁴

Understanding how the refugee definition was elaborated will shed light on the scope of the 1951 Convention as well as the meaning of some pivotal concepts such as the notion of persecution. The first part of this chapter will provide an overview of the historical context in which the 1951 Convention was drafted in an attempt to explain the reasons why the plenipotentiaries chose the current eligibility criteria to develop the refugee definition, and more particularly, why the notion of persecution was introduced as an essential concept in refugee law. The second part of this chapter will analyse the current geopolitical situation to highlight the changing context of the interpretation of the Convention and in particular the major role of women in global displacement patterns. Lastly, the third part will assess the challenges that arise from these changing circumstances in order to better evaluate the scope of this notion and its relevance in the 21st century. It will be argued that in spite of some uncertainty surrounding the exact intention of the plenipotentiaries, it can generally be agreed that they wanted to introduce a concept that could adapt to the different profiles of refugees, including the claims brought forward by refugee women. Additionally, it will be contended that the mere existence of international standards suggests that some level of consistency is needed in the interpretation of the definition of a refugee to ensure that the 1951 Convention is implemented in a manner that does not disadvantage some host countries over others and does not encourage asylum shopping. This chapter will thus conclude that a global principled interpretive approach is needed to ensure an effective implementation of the international asylum system and more adequate protection for women forced to leave their country.

1 Jean-Francois Durieux, ‘Three Asylum Paradigms’ [2013] 20 International Journal on Minority and Group Rights 147, 150. DOI: https://doi.org/10.1163/15718115-02002002.

2 Sara E. Davies, ‘Redundant or Essential? How Politics Shaped the Outcome of the 1967 Protocol’ [2007] 19 International Journal of Refugee Law 703, 705. DOI: https://doi.org/10.1093/ijrl/eem068.

3 S. S. Juss, International Migration and Global Justice (Ashgate, Aldershot, 2006), Chapter 6, 198.

4 Ibid. 199–200.

1.1 The emergence of the notion of persecution in international refugee law

1.1.1 Legal developments and the progressive conceptualisation of who is a refugee in international law

The concept of asylum is an old concept, dating back to antiquity⁵ and consisting in the right of a state to grant asylum to individuals at risk of political or religious oppression. This right was for a long time the prerogative of recipient states and merely constituted an individual and political choice of the host country.⁶ As a result, no coordinated plan of action existed at a regional or international level to address the plight of displaced individuals. It should be noted that prior to the 20^th century, the ambit of displacements and migration was relatively modest, with a limited global impact. As such, there were very few incentives for states to develop a common system of protection. One of the first and largest displacements of population across nation states only occurred in 1685 when the French King Louis XIV made the practice of protestant faith illegal in France. As a result, protestant Huguenots fled in masse to neighbouring countries, seeking shelter in today’s Germany, the Netherlands, Switzerland and other European states.⁷ At that time, it was estimated that over 200 000 individuals were displaced in the space of two decades⁸ and the protection responses provided by European states were based on the discretionary decisions of the reigning powers.

During World War I, much larger movements of population took place on the European continent.⁹ Given the high risk of destabilisation in the region, European countries decided for the first time to adopt a number of common agreements in order to better organise the delivery of aid. New instruments were developed under the auspices of the League of Nations, to determine who was eligible for refugee status by referring to specific categories of people. For instance, a number of bilateral and multilateral treaties were created to protect individuals who had fled the consequences of the Russian revolution in 1917 and the problems arising out of the dissolution of the Ottoman Empire.¹⁰ Some other treaties covered different groups such as ‘Latvian refugees (…) in the territory of Ukrainian Socialist Soviet Republic’,¹¹ ‘Greek refugees’,¹² ‘refugees in Bulgaria’,¹³ ‘refugees coming from Germany’.¹⁴ In these instruments, refugee law was understood as a response to the plight of certain categories of people fleeing repressive state policies. It can be observed that, in this period, the notion of persecution was not mentioned in any of the League of Nations’ documents because refugees were categorised as specific groups of individuals depending on their origins. Some authors such as Zarjevski highlighted the fact that this approach was quite restrictive because it was limited ‘to precisely describe already existing categories of people’¹⁵ and did not rely on a generic definition.

5 Gy Haraszti, ‘The Right of Asylum’ [1960] 2 Acta Juridica 359, 361.

6 Ibid. 363: ‘In the first place, let us point out that the right of asylum is the right of the State to grant asylum to persons prosecuted for political reasons. This right resulting from state sovereignty is recognized by international customary law and is a constituent of several international agreements as well.’

7 See analysis of Owen Stanwood, ‘Between Eden and Empire: Huguenot Refugees and the Promise of New Worlds’ [2013] 118 The American Historical Review 1319. DOI: 10.1093/ahr/118.5.1319

8 Ibid. 1319.

9 Up to 9.5 millions in Peter Gatrell, ‘World Wars and Population Displacement in the Twentieth Century’ [2007] 16 Contemporary European History 415, 418. DOI: https://doi.org/10.1017/S0960777307004092.

10 Inter alia, ‘Arrangement with respect to the issue of certificates of identity to Russian Refugees’, signed at Geneva, 5 July 1922 League of Nations Treaty Series (LNTS) [1922], vol 13, 237–257; ‘Arrangement concerning the Extension to other Categories of Refugees of certain Measures taken in favour of Russian and Armenian Refugees’, signed at Geneva, 30 June 1928, League of Nations Treaty Series (LNTS) [1929], vol 89, 47–52.

11 ‘Agreement regarding the repatriation of Latvian refugees who are at present in the territory of Ukrainian Socialist Soviet Republic’, signed at Moscow, 3 August 1921 League of Nations Treaty Series (LNTS) [1923], vol 17, 306–315

12 Inter alia, ‘Declaration relating to the settlement of Refugees in Greece and the creation for this purpose of a Refugees Settlement Commission’ signed in Geneva, 29 September 1923 League of Nations Treaty Series (LNTS) [1923], vol 20,41–43; ‘Protocol relating to the settlement of Refugees in Greece and the creation for this purpose of a Refugees Settlement Commission’, signed in Geneva, 29 September 1923 League of Nations Treaty Series (LNTS) [1923], vol 20, pp. 29–39; ‘Additional Act to the Protocol of September 29, 1923, relating to the Settlement of Greek Refugees’.

13 ‘Protocol concerning the Settlement of Refugees in Bulgaria’ signed in Geneva, 8 September 1926 [1926], League of Nations Treaty Series (LNTS), vol 58, 245–257.

14 Inter alia, ‘Provisional Arrangement concerning the Status of Refugees coming from Germany, and Annex’, signed in Geneva, 4 July 1936 League of Nations Treaty Series (LNTS) [1936], vol 171, 75–87; ‘Convention concerning the Status of Refugees coming from Germany, with Annex’, signed in Geneva, 10 February 1938 League of Nations Treaty Series (LNTS), vol 192, 59–81.

15 Delphine Zarjevski, A Future Preserved, International Assistance to Refugees (Pergamon Press 1988) 12.

The League of Nations was eventually dissolved at the outset of World War II and, as new groups of refugees appeared, the old refugee treaties became obsolete. Just before the beginning of World War II and in the aftermath of the Allies’ victory, the international community successively created the Intergovernmental Committee on Refugees (ICR) in 1938, the United Nations Relief and Rehabilitation Administration (UNRRA) in 1943 and the International Refugee Organisation (IRO) in 1946 in order to provide assistance to refugees. These entities adopted new approaches to international aid. The first organisation, the ICR, was in charge of facilitating the emigration of victims of the Nazi regime from Germany and Austria and considered that only individuals from these countries were entitled to receive international protection.¹⁶ This new approach was rather inn...