Le critere d'appartenance a un certain groupe social dans la Convention Relative au Statut des Refugies de 1951

Abstract

The need for a clear definition of the concept of a "refugee" arose with compelling urgency in the wake of the marked intensification in the flow of refugees that followed the Second World War. The 1951 Convention relating to the Status of Refugees responded to this exigency: providing criteria which make it possible to identify those individuals who could be classified as refugees. The Convention limits the recognition of refugee status to those individuals who "have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." Unlike the other criteria, the meaning of "membership of a particular social group" remains obscure. Since 1951, court judgements and scholarly publications have supplied various interpretations of this criterion: manifesting the need to have a clear definition so as to avoid weakening the very notion of a refugee. In this article Benbernou addresses the need to define this criterion 121 by analysing: (a) the historical evolution of the concept; (b) various theoretical interpretations; and (c) court judgements. Thus the author constructs a clear definition of this concept that highlights its progressive function, since it is the only criterion that can accommodate new situations that were not envisaged by the drafters of the Convention. The ejusdem generis theory is seen as providing the best interpretation of this criterion that satisfies scientific rigour as well as humanitarian exigencies. There is persecution motivated by "membership of a particular social group" when what are threatened are characteristics that are innate, immutable or such an intrinsic aspect of group identity, that forcing members to renounce to them would constitute a violation of their fundamental human rights.