Published online by Cambridge University Press: 19 July 2021
Chapter 9 argues that a new layer of complication was added with the so-called human rights–based approach to refugee law. The challenge is that refugee protection is lesser in scope than human rights protection. That ‘lesser’ protection is usually located in the persecution element: while reference to human rights has opened up refugee law to a wider range of harms, not every human rights violation reaches the threshold of persecution. The chapter shows that one consequence of the human rights–based approach is the risk of conceptually merging Convention ground and persecution. According to the human rights approach, a violation of the freedom of religion or the freedom of thought can amount to persecution. In other words, prohibitions on the expression of the Convention grounds in themselves can be considered persecutory. The chapter reveals that this has led to the invention of an alternative or additional kind of harm that stands next to the harm that is inflicted in case the claimant does express the Convention ground – or is discovered in another way. This approach builds on and reinforces ‘discretion’ reasoning, because it distinguishes on the basis of the claimant’s future behaviour and requires ‘discretion’ under certain circumstances.