Essay on The notion of persecution
Another cornerstone notion in refugee law is the “persecution”. In fact, the persecution based standard remains probably the most disputable point in the entire system of refuge protection system. The persecution standard evolved from the legitimate concern first stated in 1938 Convention about the Status of Refugees coming from Germany to exclude from protection those persons who were leaving their countries for reasons of “purely personal convenience”. Officially, analyzed term takes its roots from already noted Geneva Convention of 1951. Herewith, this Act of international law did not give the comprehensive and absolute definition what generates problems with term’s interpretation. In general, Convention of 1951 just addressed the definition guiding lines with the help of next indicators – a person’s life or freedom “was” or “would be” threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion (Plender and Mole, p.76). Over the years, the issue of notion’s indeterminacy was sharpened significantly, considering significant changes happened in political, social and economic spheres. While it is true that persecution based standard is permitted the identification of the victims of Nazilism, it also spoke to ideology-charged atmosphere which dominated the thinking of Western states that prepared the Convention. The malleable persecution-based standard could be interpreted to embrace most of the immigrant dissidents from adversary states in the East Block, and would those promote the immigration of Eastern European to Western states that experiencing acute manpower shortages. Moreover, because a finding that a refugee claimant faces the possibility of persecution implies censure of the state of origin, each recognition of refugee status would stimultaneously support efforts to stigmatize injurious the political systems in the Communist countries of origin. Continued reliance on persecution-based standard in an age when refugee states of origin and destination are frequently politically compatible has compromised the ability of refugee law to afford broadly based protection. In contrast to the cold war assumption of valid reasons to departure, refugee recognition today may be defined as for reasons of foreign policy or at least be conditioned by any unspoken view to that an allied state is unlikely to act in persecutory way. In this regard, the contemporary challenge is to recast the notion of “persecution” in a manner which is consonant with modern political realities, and which genuinely enables governments to conceive of refugee protection as a humanitarian act which ought not to a cause of tension between states (Hataway, p.100).
Talking about the principal problems connected to persecution notion application, the most significant point is the difficulties of interpretation. In this aspect, it should be remembered that Geneva Convention is not intended to establish the control and repressing towards any manifestation of persecution. In difference to criminal law, the requirement of “notions’ accuracy” was not involved in it. Moreover, indeterminacy was used as an effective tool in purpose of evolutionary, context-sensitive application of the term to the widest range of persecution cases. Being very flexible notion, the definition of analyzed term has raised several disputable issues. Fransesco Maiani provides rather thoughtful ideas – “But at the same time, the open-endedness of the refugee definition on this crucial point makes it vulnerable to restrictive interpretations, or even to manipulation. We should not lose sight of the fact that refugee status is a trump card on migration control. The readiness of industrialized states to afford an exemption from migration control has dwindled considerably with the end of the Cold War and with the concomitant, steep rise of migration pressure. The repercussions on the way in which the term “persecution” is interpreted and applied have been significant” (Maiani, p.3). In other words, the principal problems about persecution notion in refugee law are dictated by the fear of “immigrant numbers” exposed by economically prosperous states. The abuses of such states are mostly expressed through to strict interpretation of the notion’s meaning. In this order, we should remind extreme example from 1980-1990, when the concept of individualized persecution was integrated. According to this interpretation of persecution meaning, the asylum seeker was obliged to provide the evidences of being singled-out for persecution, or of being more at risk than similarly placed persons from the same area.
The inconsistency of interpretations across the states is another principal problem connected to the notion of definition. In this part, we should not forget the experience of European Union. Existing differences in term’s interpretation gave the birth to two different theories about its meaning (UNHCR Note on the Principle of Non-Refoulement, p.2). The “accountability theory” establishes that the sense of persecution should be restricted to harm provided or freely tolerated by certain state. On the other hand, some other countries of European Union, as well as UNCHR, stand for more liberal “protection theory”. It states that harm to asylum seeker also can be generated from the private parties, and in danger person is qualified as refugee so long as stated is unable or unwilling to provide necessary level of protection to such person. Majority of specialists emphasize that existing inconsistence of the persecution notion interfere the implementation of the initial intention – to generate the uniformity of approach to the issue. As the eventual outcome, the definitions of persecution are mainly established on regional level. For example, the precedents of U.S. law system have defined the persecution as “the infliction of harm upon those who differ in a way regarded as offensive”, and “punishment that rises above the level of mere harassment”. However, even such definitions are unable to resolve the problem. In this aspect, the main issue to be addressed is the comprehensive meaning of the “harm” term. Such flexibility again appears as the background to subjective decision making and probable abuses as the outcome.
From the point of refugees’ protection advocates, the problem of mentioned principal should be found with the unification of terms definition. In addition, such definition should be maximally liberal, as it promoted by “protection theory” of European Union for example. In fact, appropriate intentions were realized partially with the help of Article 9 of the EU Qualification Directive which establishes that acts of persecution within the meaning of article 1 A of the Geneva Convention must: be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention of Human Rights; or be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). Probably, wider acceptance of such approach among different jurisdictions would be effective measure to strengthen the positions of asylum seekers.
