Refugee status at international law requires more than demonstration of a risk of being persecuted. Unless the risk faced by an applicant is causally connected to one of five specified attributes – his or her race, religion, nationality, membership of a particular social group, or political opinion – the claim to be a refugee must fail. Because the drafters of the Refugee Convention believed that the world’s asylum capacity was insufficient to accommodate all those at risk of being persecuted, they opted to confine the class of refugees to persons whose predicament stems from who they are, or what they believe – the very sorts of values enshrined in non-discrimination law. To be sure, it is of course always wrong to persecute anyone, for any reason. But given the determination of states not to recognize as refugees all persons at risk of persecution, grounding the delimitation clause in the foundational principle of non-discrimination – the cornerstone of the international human rights system – was arguably a “least bad option.”
James C. Hathaway,
Special Feature Seventh Colloquium on Challenges in International Refugee Law,
Mich. J. Int'l L.
Available at: http://repository.law.umich.edu/mjil/vol37/iss2/1