Replacing the Persecution Condition for Refugeehood

Abstract

In this article, earlier versions of which were presented at the IVR World Congress in 2019 and in graduate student workshops at the University of Pennsylvania, the author offers a critical look at the existing definition of a refugee in international law, in particular, in the 1951 Convention relating to the Status of Refugees. The Convention recognizes a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion as a condition for a person to be granted refugee status. However, this leaves significant gaps in the protection of persons fleeing indiscriminate or generalized violence or harm, although such people today constitute a significant proportion of those forced to move from their country of nationality. The author emphasizes that within some regions and countries there are legal instruments capable of bridging these gaps (the 1969 Organization of African Unity Convention on the Specific Aspects of Refugee Problems in Africa, the 1984 Cartagena Declaration on Refugees, as well as temporary protection in the EU and the US), but the UN Convention continues to be deficient in this regard. The author proposes to correct these shortcomings by applying the “needs-first” approach, which understands refugees as all displaced persons fleeing sufficiently serious threats. The author presents her own definition of a refugee as “any person with a well-founded fear that their fundamental human rights are urgently threatened; who would have no recourse to their home government, even if appropriate international assistance were available; and whose interests can only or best satisfied by means of refugee – that is, by means of protection from a political authority that is not their own, usually in the form of asylum within the territory of that country.” The author acknowledges that her proposed “needs-first” approach is not without its drawbacks, and the main challenge in its implementation is to avoid becoming a purely humanitarian measure and to preserve the political identity of the individuals who are fleeing the threat to countries not of their nationality.