Definition of Refugee in International Law: Challenges of the Present Times

AuthorCatrinel Brumar
Pages250-258

Catrinel Brumar. Lecturer, Ph.D. candidate, Law Faculty, “Nicolae Titulescu”, Bucharest (e-mail: catrinelbrumar@yahoo.com).

Page 250

Introduction

Traditionally, the refugee is defined, both in the United Nations High Commissioner for Refugees (UNHCR) Statute and in the 1951 Convention relating to the Status of Refugees (here after the “1951 Convention”) as a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

Through practice and competent bodies guidelines, this definition, was interpreted in a broad manner, in order to permit a larger number of beneficiaries. However, the definition relies on a complex of subjective and objective factors and has an individualist approach. In real life, the large number of persons crossing an international border and founding themselves denied or without the protection of the country of origin made it difficult to verify the fulfilment of the conventional standards in order to recognise the quality of refugee or, even more painful, made this demarch useless, as the primary need for protection prevailed over other standards.

Page 251

The traditional definition of refugee

The doctrine and case-law explained and interpreted this definition, in order to identify the criteria to be fulfilled by a person in order to be granted the refugee status. It appears from this analysis that four conditions must be verified:

  1. the person must have crossed an international frontier, as the 1951 Convention talks about a person who is “outside his or her country of origin”

  2. the person must invoke a well-founded fear of persecution

  3. the invoked ground for persecution must enter into one of the five reasons identified by the 1951 Convention:race, nationality, religion, membership of a particular social group or political opinion.

  4. the person is without the protection of his or her country of origin.

1. The crossing of an international frontier

The crossing of an international frontier is a fundamental condition in order to discuss the applicability of the refugee definition, as only a person who has fled his or her country on origin can be considered as a refugee. This condition is not to be linked with the other requisites of the refugee definition, as it is not necessary that the person leaves his or her country of origin by reason of persecution1. It is possible that a person becomes a refugee after leaving the country of origin and that the crossing of the international frontier has no connection with any fear of persecution, but it is an intrinsic part of the refugee definition this position of the person finding him or herself outside the country of origin.

2. Well-founded fear of persecution

The person aiming at obtaining the recognition of the refugee status must invoke a well-founded fear of persecution.

As the fear is concerned, every feeling is intrinsically subjective and consequently could not be quantified or expressed in precise components. The fear must however derive from conditions of general or individual character that locate the individual in a social and political context and permit to establish if the person, considering his or her particular situation, is well founded in the sentiment of fear, as he or she it is facing the risk of persecution2. This sentiment makes the connection between the past – past acts of persecution, past events contributing to the picture of the general and personal situation – and the future – the risk or serious possibility of future persecution, as it is not necessary that such an act could have already taken place.

The persecution concept, not defined in the 1951 Convention, is linked by this very instrument to the violation of individual fundamental rights and freedoms, such as the right to life, the right to freedom and safety, the interdiction of torture or ill-treatment.

In states’ practice and case-law, the persecution was perceived as “severe violation of basic human rights”, “systematic and discriminatory conduct”; if general acts of persecution are perpetrated because their authors see or perceive something about their victims or attributed to their victims, only the persecution for reasons of one of the five grounds identified in the Convention qualifies a person to obtain the refugee recognition.

The author of persecution was traditionally evoked as a “agent of persecution”, or the term of agent usually describes a person acting on behalf of another, so that the “agent of persecution”Page 252 was traditionally considered to be the agent of the state; in this way, the only persecution acts taken into consideration were the acts of state agents or, more generally, of state3.

This narrow interpretation is partially sustained by the relation the 1951 Convention establishes between the persecution and the lack of protection, as the definitions stated that the person “is unable or unwilling to avail himself or herself of the protection” of the state. However, if it is undisputed that only a state could offer protection, the developments show (as it will be detailed bellow) that the authors of persecution are not only state agents but also non-state actors.

3. Reasons for persecution

The 1951 Convention identifies five grounds of persecution, grounds that in many situations represent also grounds for discriminatory treatment of the individual. The five reasons are: race, religion, nationality, membership of a particular social group and political opinion.

  1. Race

    The race is defined in the Convention on the Elimination of All Forms of Racial Discrimination as “race, colour, descent, or national or ethnic origin” in the context of the racial discrimination definition. If at origins the 1951 Convention gave to this ground a narrow interpretation, the development in the world justify the reference to the Convention on elimination of Racial Discrimination, extending the notion to “ethnic origin” or to “national origin”, although the basic sense of race does not cover these aspects of a person’s identity.

  2. Religion

    The introduction of this ground in the text of the 1951 Convention testifies not only the will of nations to learn from the past’s lessons, but also their conviction as to the fundamental character of the freedom of thought, conscience and religion. In fact, the definition of the refugee has as premise the freedom of everyone to have, adopt and manifest a religion or belief of his or her own choice.

    However, the concept of religion evolved during the last 50 years and the discussion challenges the traditional concept in order to permit the access of other beliefs that qualify as religious and philosophical convictions, determining individuals to manifest these beliefs in religious groups or associations.

  3. Nationality

    The notion is rather ambiguously used, as it is not to be understood as an expression of the link between the individual and the state of origin but rather as to include origins or membership to ethic, religious, cultural, linguistic communities; this interpretation should not be reduced to minorities, although the situation of minorities in often much more sensitive. However, it is possible that a link to a majority community constitutes a ground of persecution.

  4. Membership to a particular social group

    A social group can be defined as people in a certain...

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