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  • Cited by 2
  • Print publication year: 2014
  • Online publication date: July 2014

3 - Serious harm


Although the requirement to show a well-founded fear of “being persecuted” is at the heart of the refugee definition, the Refugee Convention does not define or elucidate the meaning to be given to this concept. Indeed, it is generally acknowledged that the drafters of the Convention intentionally declined to define “being persecuted” because they recognized the impossibility of enumerating in advance all of the forms of maltreatment that might legitimately entitle persons to benefit from international protection. The need for a flexible approach to “being persecuted” is especially important today given the duty under the 1967 Protocol to apply the refugee definition in a manner that ensures its relevance to “new refugee situations.”

Yet the importance of interpretive flexibility must be balanced against the imperatives of the rule of law, militating against any approach that “abandon[s] the quest for standards” in interpreting what is perhaps the key term of the treaty. Rather, as Lord Justice Laws explained in Sepet:

However wide the canvas facing the judge’s brush, the image he makes has to be firmly based on some conception of objective principle which is recognized as a legitimate source of law.

The challenge, then, is to adopt an approach to interpretation of “being persecuted” that is flexible, yet which provides guidance based on objective principle. The goal must be to understand the core construct of “being persecuted” as “a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form.”

Grahl-Madsen, A., The Status of Refugees in International Law (Vol. I, 1966), at 193
Weis, P., “The Concept of the Refugee in International Law,” (1960)
Shacknove, A., “Who Is a Refugee?” (1985) 95 Ethics274
Goodwin-Gill, G. S., “Non-Refoulement and the New Asylum Seekers,” (1986) 26(4) Virginia J. Intl. L. 897, at 901. See infra Ch. 4.2
Patrnogic, J., “Refugees – A Continuing Challenge,” (1982) Annuaire de droit international medical 73, at 75
Hathaway, J. C., The Law of Refugee Status (1991)
Storey, H., “Armed Conflict in Asylum Law: The ‘War-Flaw’,” (2012) 31(2)
Zimmermann, A. and Mahler, C., “Article 1A, para. 2 (Definition of the Term ‘Refugee’),” in Zimmermann, A. (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (2011), at 345
McHugh, J. See also Minister for Immigration and Multicultural and Indigenous Affairs v. Kord, (2002) 125 FCR 68 (Aus. FFC, Mar. 28, 2002), at 80 [35], per Marshall and Dowsett JJ.
Marcus, J., concurring. In Mei Fun Wong v. Holder, (2011)
McHugh, and Kirby, JJ. have said “it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it”: Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs, (2003)
Geldbach, E., “Is there a Minimum of Religious Existence?” in A. Kilp and A. Saumets (eds.), Religion and Politics in Multicultural Europe: Perspectives and Challenges (2009), at 247
Clayton, G., Textbook on Immigration and Asylum Law Practice (2010), at 457
Carlier, J.-Y., “The Geneva Definition and the Theory of the Three Scales,” in Nicholson, F. and Twomey, P. (eds.), Refugee Rights and Realities (1999)
Edwards, A. and Hurwitz, A., “Introductory Note to the Arusha Summary Conclusions on Complementarities between International Refugee Law, International Criminal Law, and International Human Rights Law,” (2011)
Werle, G. et al., Principles of International Criminal Law (2nd edn., 2009)
Boas, G., Bischoff, J. L., and Reid, N. L., Elements of Crimes Under International Law (Vol. II, 2009)
Jastram, K. and Cavalieri, S., “Human Rights in Refugee Tribunals,” (2005)
Arakaki, O., Refugee Law and Practice in Japan (2008)
Hailbronner, K., EU Immigration and Asylum Law: Commentary on EU Regulations and Directives (2010)
Battjes, H., European Asylum Law and International Law (2006)
Aleinikoff, T. A., “The Meaning of Persecution in United States Asylum Law,” (1991)
Adelman, H. (ed.), Refugee Policy: Canada and the United States (1991)
Simeon, J. C. (ed.), Critical Issues in Refugee Status Determination (2010)
Feller, E., Türk, V., and Nicholson, F. (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003)
Gibney, M., International Human Rights Law: Returning to Universal Principles (2008)
Pobjoy, J. M., “A Child Rights Framework for Assessing the Status of Refugee Children,” in Juss, S. S. and Harvey, C. (eds.), Contemporary Issues in Refugee Law (2013) 91, at 121–29
Seiderman, I. D., Hierarchy in International Law: The Human Rights Dimension (2001), at 67–89
McGoldrick, D., “The Interface between Public Emergency Powers and International Law,” (2004)
Brownlie, I., Principles of Public International Law (6th edn., 2003)
Meron, T., “On a Hierarchy of International Human Rights,” (1986)
Megret, F., “Nature of Obligations,” in Moeckli, D., Shah, S., and Sivakumaran, S. (eds.), International Human Rights Law (2010), at 141
Keller, H. and Grover, L., “General Comments of the Human Rights Committee and Their Legitimacy,” in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (2012)
Alston, P., “The Historical Origins of the Concept of ‘General Comments’ in Human Rights Law,” in Boisson de Chazournes, L. and Gowland Debbas, V. (eds.), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (2001), at 763–76
Nowak, M., UN Convention on Civil and Political Rights: CCPR Commentary (2nd rev. edn., 2005)
Joseph, S., Schultz, J., and Castan, M., The ICCPR: Cases, Materials and Commentary (2005)
Kalin, W. and Kunzli, J., The Law of International Human Rights Protection (2009), at 271
De Schutter, O., International Human Rights Law (2010)
Griffin, J., On Human Rights (2008)
Greenwood, C., “Scope of Application of Humanitarian Law,” in Fleck, D. (ed.), The Handbook of International Humanitarian Law (2nd edn., 2008)
Gill, T. D. and Fleck, D. (eds.), The Handbook of the International Law of Military Operations (2010)
Nowak, M., Article 6: The Right to Life, Survival and Development (A Commentary on the United Nations Convention on the Rights of the Child) (2005)
Foster, M., “Non-Refoulement on the Basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law,” (2009)
Handmaker, J., La Hunt, L. De, and Klaaren, J. (eds.), Advancing Refugee Protection in South Africa (2008), at 221–22
Bales, K., Disposable People: New Slavery in the Global Economy (1999)
Dauvergne, C. and Millbank, J., “Forced Marriage as a Harm in Domestic and International Law,” (2010)
Shahinian, G., Thematic Report on Servile Marriage, UN Doc. A/HRC/21/41 (2012)
Harvey, C., Seeking Asylum in the UK: Problems and Prospects (2000)
Anker, D., “Refugee Law, Gender and Human Rights Paradigm,” (2002)
Dowd, R., “Dissecting Discrimination in Refugee Law: An Analysis of its Meaning and its Cumulative Effect,” (2011)
Ghanea, N., “Repressing Minorities and Getting Away with It? A Consideration of Economic, Social and Cultural Rights,” in Ghanea, N. and Xanthaki, A. (eds.), Minorities, Peoples and Self Determination (2004)
Ramcharan, B. G., Judicial Protection of Economic, Social and Cultural Rights: Cases and Materials (2005)
Sepulveda, M. M., The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003)
Dankwa, E. V. O., “Working Paper on Article 2(3) of the International Covenant on Economic, Social and Cultural Rights,” (1987)
Musalo, K., Moore, J. M., and Boswell, R. A., Refugee Law and Policy (3rd edn., 2007)
Buxton, L.J., see also authorities cited in Symes, M. and Jorro, P., Asylum Law and Practice (2nd edn., 2010)
Musalo, K., “Claims for Protection Based on Religion or Belief,” (2004)
Juss, S. S. and Harvey, C. (eds.), Contemporary Issues in Refugee Law (2013)