译者|王一宇 北京大学国际法学院J.D. & J.M.
一审|LYJ 中国政法大学经济法硕士
二审|王子安 香港城市大学JD
编辑|陈一昕 中国政法大学法本
责编|陈逸漩 中国人民大学法本
Refugee Status Determination: The Contents of Refugee Definition (Excerpt)
难民身份界定:难民的定义(节选)
By Jahid Hossain Bhuiyan
Outside the Country of Nationality or Habitual Residence
A person can only qualify as a refugee if he is outside his country of nationality, or for those who are stateless, their country of habitual residence. Hence, “nationality” denotes “citizenship”. When a person is a national or a citizen of a country, it means he has a special kind of relationship with that country which a stateless person does not possess. For persons who officially have nationalities but are in a similar situation as stateless persons, their status is often termed as de facto statelessness. There is, however, no definition of this term which is recognized worldwide.
It is not necessary under the 1951 Refugee Convention that the applicant was a refugee at the time when he left his country of origin or habitual residence. He does not also need to demonstrate that he left that country because of a well-founded fear of persecution. Grounds for persecution as a refugee may arise when the individual concerned in such situations is already outside of the country, the person may become a refugee while being in the receiving country.
处于国籍国或经常居住地所在国之外
一个人只有在其国籍国以外(无国籍者在其经常居住地所在国以外),才有资格成为难民。因此,“国籍”(nationality)意味着“公民身份”(citizenship)。当一个人是一国国民或公民时,则他与该国有特殊联系,不为无国籍者所具备。而有些人正式拥有国籍,却与无国籍人处境相似,他们的身份则通常被称为事实上的无国籍状态(de facto statelessness)。然而,该术语尚无全世界公认的定义。
根据1951年《难民公约》(Refugee Convention),在离开原籍国或经常居住地所在国时,申请人不需要是难民。他也不需要证明其离国系出于充分理由担心受到迫害。如果在这种情况下,有关个人已经在国外,可能会产生作为难民受到迫害的理由,其可能在接收国成为难民。
Well-Founded Fear
The UNHCR Handbook states that, since fear is subjective, the definition of refugee involves a subjective element in the person applying for being recognized as a refugee. Therefore, in the determination of a person’s status as a refugee, judgment on his application for recognition as a refugee must be based on an evaluation of his statements and not just on what is happening in his country of origin. That is the primary reason the term ‘well-founded’ is added as a qualification to the element of fear; a state of mind and a subjective condition. This implies that determination of refugee status requires not only the frame of mind of the person concerned but also this frame of mind must be supported by an objective situation. Therefore, the term ‘well-founded fear’ comprises a subjective and objective element. Both elements must be considered in determining the existence of well-founded fear. The applicant, as per the objective element, is required to demonstrate a significant, actual risk of being persecuted. The applicant, as per the subjective element, is required to demonstrate an emotional state of fear in regard to that risk.
To determine that the fear (in the sense of forward-looking expectation of risk) claimed by an applicant for refugee status is well-founded or not will require, according to Hathaway and Hicks, the presentation of evidence. It means that the state party evaluating the application should be able to determine whether there is a significant risk of persecution of the applicant. As the mere chance or remote possibility of being persecuted is not sufficient to establish a well-founded fear, the applicant in such a case needs to demonstrate only a ‘real chance’ or ‘reasonable possibility’ of being persecuted. He does not, however, need to demonstrate that there is a ‘clear probability’ that he will be persecuted.
有充分理由的恐惧
《难民署手册》(UNHCR Handbook)指出,由于恐惧是主观的,难民的定义涉及申请人的主观因素。因此,在界定难民身份时,必须基于对申请人陈述的评估,而不仅仅是根据其原籍国所发生的情况。这是“有充分理由”(well-founded)修饰恐惧的主要原因,限定一种精神状态和主观状态。因此,评估不仅需要主观依据,而且这种主观心理必须得到客观情况的证明。因此,“有充分理由的恐惧”一词包括主观和客观因素。在确定存在有充分理由的恐惧时,必须考虑这两个因素。根据客观因素,申请人必须证明存在遭受迫害的重大实际风险。根据主观因素,申请人需要在客观上证明与该风险有关的的恐惧情绪。
根据Hathaway和Hicks的观点,考虑难民身份申请人所声称的恐惧(在前瞻性风险预期的意义上)是否有充分的理由,需要其提供证据。这意味着,评估申请的缔约国,应当确定申请人是否存在遭受迫害的重大风险。若迫害可能性较低,则不足以建立有充分理由的恐惧。申请人需要证明被迫害存在“真实可能性”(real chance)或“合理可能性”(reasonable possibility)。然而,他不需要证明他会受到迫害的“明显可能性”(clear probability)。
Persecution
In regard to refugees, the concept of persecution was never used in any of the international agreements before World War II as it appeared for the first time only in the draft Constitution of the International Refugee Organization (IRO). It was never clarified why the concept was used by the IRO but subsequent definitions of refugee status by the Statute of the UNHCR and the 1951 Refugee Convention adopted the term. The definition of the term ‘persecution’ is not contained in the 1951 Refugee Convention, even for the purpose of determining refugee status. It is the feeling of Grahl-Madsen that the omission of the definition was intentional. It was probably the intention of the drafters to just introduce a concept that was flexible enough to be applicable and interpretable as circumstances might arise in the future. It was as if the drafters were deferring to the creativity of people to think up methods of persecution. An inference from Article 33 of the 1951 Refugee Convention indicates that any threat to human life or personal freedom for reasons of race, religion, nationality, membership of a particular social group or political opinion is always deemed as persecution. Other forms of persecution include serious violations of non-derogable human rights such as the right to life, the right to be free from being tortured or cruel, inhuman or degrading treatment or punishment, the right to be free from slavery of servitude, the right not be subjected to retroactive criminal penalties, the right to be recognised before the law, the right to freedom of thought, conscience and religion.
迫害
第二次世界大战之前的国际协定,都未使用迫害的概念来限定难民的定义,因为迫害概念首次出现于国际难民组织(IRO)的章程草案中。虽然国际难民组织未阐明为何使用该概念,但随后《难民署规约》(Statute of the UNHCR)和1951年《难民公约》对难民地位的定义都采用了这一术语。1951年《难民公约》虽然希望界定难民地位,也没有包含“迫害”(persecution)的定义。Grahl-Madsen认为,省略定义系故意为之,起草者可能只是想引入一个足够灵活的概念,以便在未来灵活适用和解释。起草者好像在顺应那些想出迫害方法的人们的创造力。1951年《难民公约》第33条的推论表明,任何因种族、宗教、国籍、特定社会群体成员身份或政治观点,而对人的生命或人身自由构成的威胁,都一定会被视为迫害。其他形式的迫害包括严重侵犯根本人权,如生命权,免受酷刑、残忍虐待、有辱人格的处罚的权利,免受奴役的权利,刑事处罚不溯及既往的权利,(人格)受法律承认的权利,思想、信仰、宗教自由的权利。
(图片来源于网络)
Membership of a Particular Social Group
The vaguest ground mentioned in the Convention is membership of a particular social group. The ambiguity of the term has caused a number of variations in the way it is understood. Justice McHugh in Applicant A Anor v MIEA & Anor notes that courts as well as jurists have interpreted the term ‘membership of a particular social group’ in various different ways, resulting in the courts and tribunals rendering decisions which are irreconcilable.
Grahl-Madsen argues that the five bases of persecution according to the 1951 Refugee Convention are divided into two groups; one in which those individuals have qualities that are not under their own control and the other group has control over those quali- ties. He categorizes the first one on the basis of the membership in a par- ticular social group, along with race, nationality, and religious heritage and the second one on the basis of political opinion and religious observance.
Goodwin-Gill and McAdam argue, contrary to the view of Grahl- Madsen, that one important element in describing a social group is in the way matters of choice may be combined with other matters over which members of the group do not have control. Thus, in determining if a particular group constitutes a ‘social group’, reference should be made to the linkages and uniting factors like ethnicity, culture, linguistics origin, education, family or other background, economic activity, shared values, outlook, and aspirations.
In the UNHCR Handbook, it is stated that a ‘particular social group’ is normally comprised of persons of the same background, habits or social status.
In the UNHCR Guidelines, it is stated that a ‘particular social group’ is a group of persons who exhibit a common characteristic outside of their risk of persecution and who are perceived by society as a group. Such a characteristic should be innate, unchangeable, or otherwise basic to their identity, conscience or the exercise of their human rights.
The definition mentioned above integrates the two dominant approaches relative to membership of a particular social group. The first, the ‘protected characteristics’ approach, which is sometimes called the ‘immutability’ approach or ‘ejusdem generis’ approach, analyses whether or not a group is held together by an immutable characteristic or attribute or one that is so basic to a person’s dignity that he should not be forced to forsake. The second approach, known as the ‘social perception approach’, examines whether a group shares a common characteristic that makes them a cognizable group or sets them separate from society at large.
特定社会群体的成员资格
公约中定义最模糊的要件是“特定社会群体的成员资格”。该术语的模糊性导致其法律解释存在许多变化。McHugh法官在Applicant A Anor v MIEA & Anor案中指出,法院和学者对“特定社会群体的成员资格”(membership of a particular social group)一词的解释方式不同,导致不同法院作出了无法自洽的判决。
Grahl-Madsen认为,根据1951年《难民公约》,迫害的五个基础分为两类:一类特性不受意志转移,另一特性可控。前者的分类基于特定社会群体的成员身份、种族、国籍和宗教遗产,后者根据政治观点和宗教信仰。
Goodwin-Gill和McAdam与Grahl-Madsen的观点相反,他们认为,描述一个社会群体的重要因素之一,是采用可控事项与不可控事项相结合的方式。因此,在确定是否构成“社会群体”(social group)时,应参考种族、文化、语言渊源、教育、家庭或其他背景、经济活动、共同价值观、前景和愿望等联系和连结因素。
《难民署手册》指出,“特定社会群体”(particular social group)通常由具有相同背景、习惯或社会地位的人组成。
《难民署指南》(UNHCR Guidelines)指出,“特定社会群体”(particular social group)是指在遭受迫害的风险以外表现出一种共性,同时被社会视为同一群体的一类人。这种共性应该是与生俱来、不可改变的,或者是关于身份、信仰或行使人权的根本特征。
上述定义综合了与特定社会群体成员资格相关的两种主要方法。第一种是“受保护的特征”(protected characteristics)方法,有时被称为“不变性”(immutability)方法或“同类规则”(ejusdem generis)方法,它分析一个群体是否由一个不变的特征或属性,或与根本尊严联系在一起,不应被强制放弃该属性或根本特征。第二种方法被称为“社会感知方法”(social perception approach),它考察一个群体是否具有成为可识别的群体或使其与整个社会区分的共同特征。
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