Citation

Heyman MG. Int. J. Refug. Law 2005; 17(4): 729-748.

Copyright

(Copyright © 2005, Oxford University Press)

DOI

10.1093/ijrl/eei029

PMID

unavailable

Abstract

While the 1951 Convention is no longer limited geographically and its definition of a refugee is not linked to any particular crisis or place, the source of persecution and the role of the state with respect thereto has proved problematic. Domestic violence claims have suffered particularly because of these shortcomings, as these cases have been uneasy fits within doctrine. Though the Convention definition ordinarily envisions the state as persecutor, domestic violence follows a different course. Almost inevitably, its victims are persecuted by their husbands. As 'non-state actors', they have frequently and wrongly eluded the Convention norms, revealing a tragic protection gap in the Convention. An asylum seeker must prove that she has a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group or political opinion. Despite the seriousness of the claim, if the reason for the threat does not lie in one of those five sources, a proper asylum claim has not been made. Worse, however, the source of the persecution, a non-state actor, often blocks Convention protection. This paper will analyze these stumbling blocks to asylum seekers. It will posit the notion that legitimate asylum seekers have been marginalized by their home countries, rendered virtual non-citizens. Whether through complicity, neglect or sheer indifference or incompetence, these home countries are 'failed states', failures in not having provided full rights of citizenship throughout their populations. In conjunction with that, it will examine the standards for determining when the non-state actor is a persecutor within the Convention sense. Finally, it will set out factors to be used to test the failed state for litigation purposes.

Language: en