Table of Contents

Research Handbook on International Law and Migration

Research Handbook on International Law and Migration

Research Handbooks in International Law series

Edited by Vincent Chetail and Céline Bauloz

Migration is a complex and multifaceted issue, and the current legal framework suffers from considerable ambiguity and lack of cohesive focus. This Handbook offers a comprehensive take on the intersection of law and migration studies and provides strategies for better understanding the potential of international legal norms in regulating migration. Authoritative analyses by the most renowned and knowledgeable experts in the field focus on important migration issues and challenge the current normative framework with new ways of thinking about the topic.

Chapter 19: Persecution: Towards a working definition

Hugo Storey

Subjects: development studies, migration, law - academic, human rights, public international law, politics and public policy, human rights, social policy and sociology, migration, urban and regional studies, migration

Extract

It is time we abandon the notion that persecution cannot be defined and recognize that in fact much of the work to achieve such a definition has already been done. It is oft said that the drafters of the 1951 Geneva Convention Relating to the Status of Refugees and the 1967 Protocol did not try to define persecution because everyone knew what it meant. The term's first appearances in treaty provisions - in the 1946 International Refugee Organization Constitution, the 1948 London Charter of the International Military Tribunal, and in Article 45(4) of the 1949 Geneva Convention Relating to the Protection of Civilian Persons in Time of War - would appear to bear that out. But when the concept of persecution (or more precisely, 'being persecuted') eventually took its place in the text of Article 1A(2) of the 1951 Convention, the reason for not defining it was not seemingly this but was rather because of the fear that to define it would be to restrict the scope of something intrinsically protean. In the oft quoted words of Grahl-Madsen, '… [the drafters] capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men'. That fear, and the generally minimalist provisions of Article 1A(2) as a whole, leaving indeed all its key terms undefined, proved a mixed blessing. On the one hand, it meant that what had begun as a shorthand for statist and (enumerated) group-based iniquities already inflicted could over time broaden out to encompass non-state and individualised iniquities yet to be inflicted.

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