| Introduction |
|
1 | (9) |
|
1.1 Background and context of thesis |
|
|
1 | (2) |
|
|
|
3 | (4) |
|
Sources used and scope of the research |
|
|
4 | (2) |
|
Line of argumentation of the research |
|
|
6 | (1) |
|
|
|
7 | (3) |
|
1 The notion of persecution, historical background and interpretive challenges in the 21st century |
|
|
10 | (25) |
|
1.1 The emergence of the notion ofpersecution in international refugee law |
|
|
11 | (9) |
|
1.1.1 Legal developments and the progressive conceptualization of who is a refugee in international law |
|
|
11 | (4) |
|
1.1.2 The emergence of the notion of persecution as a pivotal concept in the refugee definition |
|
|
15 | (3) |
|
1.1.3 Universalisation of the 1951 Convention |
|
|
18 | (2) |
|
1.2 A changing geopolitical context |
|
|
20 | (6) |
|
1.2.1 Interpreting the notion of persecution during the cold war polarity: a political understanding of the refugee definition |
|
|
20 | (2) |
|
1.2.2 Emerging trends of displacements in the 20th century |
|
|
22 | (4) |
|
1.3 Interpretive challenges |
|
|
26 | (8) |
|
1.3.1 The notion of persecution: a malleable notion? |
|
|
26 | (3) |
|
1.3.2 A need for consistent interpretations of the notion of persecution? |
|
|
29 | (1) |
|
1.3.3 Basis of definition |
|
|
30 | (1) |
|
i Persecution akin to the non-refoulementprinciple? |
|
|
30 | (2) |
|
ii The definition of persecution in international criminal law |
|
|
32 | (2) |
|
|
|
34 | (1) |
|
2 Developing an interpretive framework for interpreting the notion of persecution: an assessment of the basic human rights interpretive model |
|
|
35 | (32) |
|
2.1 Legal and theoretical justifications for referring to human rights as interpretive benchmarks |
|
|
35 | (8) |
|
2.1.1 Teleological approach to refugee law: the 1951 Convention as a human rights instrument? |
|
|
36 | (3) |
|
2.1.2 International refugee law as a self-contained regime? |
|
|
39 | (2) |
|
2.1.3 The compromise: human rights as the orthodoxy? |
|
|
41 | (1) |
|
|
|
42 | (1) |
|
2.2 The quantitative and qualitative aspects of persecution |
|
|
43 | (12) |
|
2.2.1 Qualitative aspect of persecution: basic human rights used as interpretive benchmarks |
|
|
43 | (1) |
|
Serious harm: which human rights should be used as benchmarks'? |
|
|
43 | (2) |
|
Basic human rights approach: a framework that is too broad? |
|
|
45 | (2) |
|
Basic human rights: vague notions? |
|
|
47 | (1) |
|
(A) Shirting the interpretive exercise to an equally vague `discursive terrain' |
|
|
47 | (2) |
|
(B) Human rights jurisprudence: a solution to precise interpretive guidance? |
|
|
49 | (2) |
|
Basic human rights approach: a restrictive framework? |
|
|
51 | (2) |
|
2.2.2 Quantitative aspect of persecution |
|
|
53 | (1) |
|
Sustained and systemic approach: a restrictive threshold? |
|
|
53 | (2) |
|
The basic human rights approach: a formalist and uniform threshold |
|
|
55 | (1) |
|
2.3 The surrogacy principle as part of the persecution test? |
|
|
55 | (4) |
|
2.3.1 The notion of state protection wrongly equated with the test of persecution? |
|
|
56 | (1) |
|
2.3.2 Persecution: a bifurcated approach to the Internal Flight Alternative (IFA) test? |
|
|
57 | (2) |
|
2.4 Inconsistent applications of the basic human rights framework in national jurisdictions |
|
|
59 | (6) |
|
|
|
65 | (2) |
|
3 Alternative proposals to the basic human rights approach for interpreting the notion of persecution |
|
|
67 | (37) |
|
3.1 A severe violation approach: an expanded basic human rights model? |
|
|
67 | (18) |
|
3.1.1 The Qualification Directive of the European Union: first treaty to provide a definition of persecution in refugee law |
|
|
68 | (1) |
|
A severe violation approach |
|
|
68 | (5) |
|
The restrictive guidance of the CJEU on the notion of persecution |
|
|
73 | (5) |
|
Inconsistent practices in Europe after the adoption of the QD |
|
|
78 | (5) |
|
3.1.2 The Qualification Directive: a `template for a universal working definition' of persecution? |
|
|
83 | (2) |
|
3.2 Departing from a human rights narrative: alternative approaches for interpreting the notion of persecution |
|
|
85 | (16) |
|
3.2.1 Persecution, identity, dignity and the concept of personhood |
|
|
85 | (2) |
|
3.2.2 Persecution and the core concept of discrimination |
|
|
87 | (1) |
|
Persecution as an act based on the five Convention grounds: the pivotal role of the Convention nexus in defining persecution |
|
|
88 | (2) |
|
Discrimination versus persecution? |
|
|
90 | (3) |
|
3.2.3 The UNHCR's model for interpreting persecution |
|
|
93 | (1) |
|
The human rights and circumstantial approaches |
|
|
93 | (3) |
|
A framework leading to inconsistent interpretations? |
|
|
96 | (3) |
|
Practical benefits of the circumstantial approach |
|
|
99 | (2) |
|
|
|
101 | (3) |
|
4 Interpreting persecution in the context of harm faced by refugee women |
|
|
104 | (2) |
|
4.1 Gender-based violence and interpretive challenges |
|
|
106 | (1) |
|
4.1.1 The influence of human rights law on the growing recognition of genderbased violence as a form of persecution |
|
|
106 | (1) |
|
4.1.2 Human rights: a male-centric paradigm? |
|
|
106 | (1) |
|
4.2 The notion of persecution and jurisprudential approaches to gender-based violence |
|
|
106 | (32) |
|
4.2.1 The practice of FGM and its persecutory dimension |
|
|
114 | (1) |
|
|
|
114 | (1) |
|
FGM as a physical harm: an act of persecution? |
|
|
115 | (3) |
|
Peripheral aspects of the harms surrounding the act of FGM |
|
|
118 | (3) |
|
|
|
121 | (1) |
|
|
|
122 | (1) |
|
General overview of the notion of domestic violence in asylum cases |
|
|
122 | (1) |
|
Conceptual confusion regarding the degree of harm in cases of domestic violence in common-law jurisdictions |
|
|
123 | (4) |
|
Domestic violence in the jurisprudence of European countries: inconsistent interpretations of the threshold and nature of harm |
|
|
127 | (3) |
|
|
|
130 | (1) |
|
4.2.3 Trafficking in persons and the conceptualisation of persecution |
|
|
130 | (1) |
|
Definition and legal framework |
|
|
130 | (3) |
|
The risk of (re) trafficking as a form of persecution |
|
|
133 | (2) |
|
Inconsistent approaches regarding the peripheral harms surrounding the trafficking experience |
|
|
135 | (3) |
|
|
|
138 | (1) |
|
|
|
138 | (2) |
| Conclusion |
|
140 | (4) |
| Index |
|
144 | |
