Should she be
granted asylum? Examining the justifiability of the
persecution criterion and nexus clause in asylum law
Noa Wirth Nogradi 1
School of Politics and International Studies, University
of Leeds, N.W.Nogradi@leeds.ac.uk
The current international asylum regime recognizes only
persecuted persons as rightful asylum applicants. The
Geneva Convention and Protocol enumerate specific
grounds upon which persecution is recognized. Claimants
who cannot demonstrate a real risk of persecution based
on one of the recognized grounds are unlikely to be
granted asylum. This paper aims to relate real-world
practices to normative theories, asking whether the
Convention’s restricted preference towards persecuted
persons is normatively justified. I intend to show that
the justifications of the persecution criterion also
apply to grounds currently lacking recognition. My main
concern will be persecution on the grounds of gender.
The first section introduces
the dominant standpoints in theories of asylum, which
give different answers to the question of who should be
granted asylum, based on different normative
considerations. Humanitarian theories base their claims
on the factual neediness of asylum-seekers, holding that
whoever is in grave danger of harm or deprivation should
be granted asylum. Political theories base their
justifications on conceptions of legitimacy and
membership, holding that whoever has been denied
membership in their original state should be granted
asylum. Under political theories, Matthew Price’s theory
will be discussed, which provides a normative
justification of the currently recognized persecution
criterion. The second section provides a descriptive
definition of persecution based on Kuosmanen (2014), and
evaluates the normative relevance of the different
elements of this definition based on the theories
presented previously. The third section is devoted to
the examination of the normative justifiability of the
nexus clause’s exclusive list of the bases (grounds)
upon which persons might be persecuted. The section
argues that while the clause does not recognize that
persecution might be based on gender, in fact many women
experience harms based on gender that fulfil all the
normatively relevant definitive conditions constituting
persecution. The conclusion shows that although the
current law’s preferences towards the persecuted are
justifiable, the nexus clause’s limiting enumeration of
grounds is not. This applies especially to the exclusion
of gender as grounds for granting asylum.
Keywords: global justice, cosmopolitanism,
compatriot partiality, nationalism, democracy
Introduction
The current international asylum
regime, outlined in the Geneva Convention and
Protocol established by the UNHCR in 1951 and 1967,
reads:
The term ‘refugee’ shall apply to any
person who: […] owing to a well-founded fear of
being persecuted for reasons of race, religion,
nationality, membership of a particular social
group or political opinion, is outside the country
of his nationality and is unable, or owing to such
fear, is unwilling to avail himself of the
protection of that country (Article 1/A/2);
No Contracting State shall expel or
return (‘refouler’) a refugee in any manner
whatsoever to the frontiers of territories where
his life or freedom would be threatened on account
of his race, religion, nationality, membership of
a particular social group or political opinion
(Article 33/1).2
Granting asylum is understood as
granting entry to a seeker in, or at the borders of
a state other than her original state, and granting
indefinite permission of residence there. According
to the Convention, receiving states have a duty of
admission only towards persecuted persons. In the
so-called “nexus clause”, the Convention enumerates
specific grounds—ethnicity, nationality, religion,
political opinion, or social group membership—upon
which persecution is recognized. If harm is
inflicted on persons for other causes, or on the
basis of other characteristics—such as gender—there
is no binding text that commands states to recognize
the asylum applicant. It is not impossible for
states to grant asylum to seekers based on other
grounds not listed in the nexus clause: depending on
the receiving state’s individual assessment, gender
may be interpreted under the social group or on the
political opinion ground. And even though the UNHCR
encourages such interpretations (UNHCR 2002), in the
saturated situation of massive migration flows,
states are looking to limit eligibility as much as
possible, sticking with the strictly binding,
ratified text, rather than expanding their
understandings of eligibility.
This paper investigates the normative justifiability
of the Convention’s persecution criterion and nexus
clause,3
and argues that while the persecution criterion is
justifiable, the nexus clause’s exclusion of gender
as a ground is not. I intend to show that the
available justification of the persecution criterion
also justifies the recognition of other grounds,
currently not listed in the nexus clause. In
particular, I argue that the normative relevance of
persecution, which makes it the proper condition to
be remedied by asylum, is demonstrated in the case
of women victims of gender-based violence and
discrimination.4
So far, the theoretical debate has paid little
attention to the issue of gender in terms of asylum.5
This paper shows that gender cannot be ignored even
in a restrictive theoretical approach, which instead
of deducing entitlement to asylum from the existence
of unmet needs, justifies the persecution criterion.
It shows that the same circumstances that make
persecution normatively relevant also make
gender-based harm and discrimination normatively
relevant: in other words, that gender-based harm and
discrimination could constitute persecution, and
that consequently, gender should be explicitly
recognized as a ground in the nexus clause.
In the first section, I introduce the
dominant standpoints in theories of asylum, which
give different answers to the question of who should
be granted asylum, based on different normative
considerations. Theories are divided into
humanitarian and political approaches, based on
their central concerns.6
Humanitarian theories base their claims on the
factual neediness of asylum-seekers, holding that
whoever is in grave danger of harm or deprivation
should be granted asylum. What I will refer to as
“political” (in contrast with humanitarian) theories
base their justifications on conceptions of
legitimacy and membership, holding that whoever
suffers harm as result of her state’s legitimacy
failure, or has been denied membership in their
original state, should be granted asylum. Under
political theories, Andrew Shacknove’s theory will
be discussed, which tries to interpret humanitarian
concerns through a political conception. Matthew
Price’s theory will be discussed as a political
approach that provides a normative justification of
the currently recognized persecution criterion.
Consequently, the first section will show that the
persecution criterion is
justifiable, i.e. that there is a justification for
the claim that asylum should be granted to
persecuted people, and therefore the criterion for
the current law is acceptable.
The second section explains Kuosmanen’s
(2014) descriptive definition of the term
“persecution” and evaluates the normative relevance
of the different elements of this definition based
on the theories presented previously. Kuosmanen
analyses the term’s meaning, drawing on common
assumptions and historical cases. He identifies a
set of conditions, which, when all are
fulfilled—when harm occurs in a context in which all
these circumstances are present—qualifies the
situation as persecution. The section goes on to
explore the normative relevance of these conditions,
constitutive of persecution’s definition, according
to humanitarian and political approaches, and
Shacknove’s and Price’s claims in particular.
The third section is devoted to the examination of
the normative justifiability of the nexus clause’s
exclusive list of the bases (grounds) upon which
persons might be persecuted, and the complexities of
the corresponding element (“unjust, discriminatory
targeting”) of persecution’s descriptive definition.
In this section, elements of the definition of
persecution that one may find hard to establish in
the case of gender-based harms are discussed. The
section argues that while the nexus clause does not
recognize that persecution might be based on gender,
in fact many women experience harms based on gender
that demonstrate all the normatively relevant
definitive conditions constituting persecution.
The conclusion shows that although the
current law’s preferences towards the persecuted are
justifiable, the nexus clause’s limiting enumeration
of grounds is not. This applies especially to the
exclusion of gender as a ground for granting asylum
I. Who should be granted
asylum?
Is
it justifiable
that victims or
prospective
victims of harm,
in order to be
admitted, have to
suffer harm as a
result of
“persecution”, and
have to
demonstrate that
this persecution
is based on
certain attributes
specified in the
nexus clause? This
section will give
an overview of
dominant normative
positions, and
will show that the
persecution
criterion is
justifiable, if
one does not
subscribe to a
humanitarian
theory of asylum.
In the discourse
of asylum theory,
two approaches can
be distinguished:
humanitarian
and political
conceptions of
asylum.
Humanitarian
theories claim
that the duty to
grant asylum is
invoked by the
factual neediness
of claimants,
while political
theories point to
political
concepts, such as
membership and
legitimacy, to
ground the duty of
granting asylum.
While humanitarian
approaches are not
promising in terms
of justifying the
persecution
criterion, a brief
introduction to
humanitarian
reasoning is
useful to position
this inquiry in
the disciplinary
context, and to
see the contrast
between the
dominant normative
approaches.
Understanding the
humanitarian
approach is
essential in order
to grasp the
significance of
arguments in
political
conceptions, which
object to deriving
the duty to grant
asylum from
humanitarian
reasons.
Humanitarian
approaches in
asylum theory
identify certain
“basic goods” to
be provided to all
human beings qua human
beings as a
primary matter of
moral duty.
Philosophers
representing this
approach usually
formulate the
requirement of
this provision as
“all individuals
have a right
to X”. Under
humanitarian
conceptions, the
core of the claim
to gain entry is
neediness,
and the
probable
consequences of
not having needs
met, such as
starvation and
death, for
instance.7
The argument
justifying
entrants’ claims,
invoking the duty
to grant asylum,
proceeds as
follows:
Theories vary with respect to
identifying X,
from including
basic goods of
subsistence such
as food and water
to including means
to provide for
oneself and
develop
capabilities, such
as education and
work. Meeting the
specified “basic
needs” or “rights”
for deprived
persons takes
priority over less
fundamental claims
of citizens—the
duty stands as
long as no
similarly strong
claim can be made
by citizens of the
receiving state.
Approaches
emphasizing basic
goods of
subsistence seem
intuitively
strong, focusing
on immediate
situations where
access to goods is
a matter of life
and death.
Humanitarian
theories hold that
the processes
leading to
deprivation or
harm are
irrelevant to
justifying the
duty of admission.
As Carens puts it:
“From a moral
perspective, what
should matter the
most is the
seriousness of the
danger and the
extent of the
risk, not the
source of the
threat or the
motivation behind
it” (Carens 2003:
103).
Consequently, (P3)
states should
prioritize
granting entry to
prospective
victims of famine
or drought over
claims of persons
persecuted based
on systemic
discriminatory
targeting but with
provisional harms
less grave than
starvation, for
instance. The
moral duty to
prioritize
assistance to
those in grave and
urgent need might
seem intuitively
compelling but
however noble, it
does not account
for two important
considerations.
First,
and most
importantly, there
is no reasonable
link between the
imperative of
assisting those in
need and the
proposed tool for
that assistance
(i.e. inclusive
asylum policies).
“Basic right”
goods of
subsistence are
generally mobile
goods: we need not
abandon the duty
of securing access
to X, even if we
do not agree that
the most urgent
need is the
weightiest claim to asylum.
We should simply
look for other
ways to realize
this humanitarian
duty.8
Deriving the
reason to grant
asylum from the
existence of needs
misses justifying
the pairing of the
need to the
proposed tool of
remedy (Gibney
2004: 84).
Second, there is
no consideration
of efficiency. In
this approach, the
duty of admission
is based on the
claim that “(P1)
All human beings
have a basic right
to X”. We can thus
assume that the
aim is to provide
for the basic
needs of all those
entitled (all
humans), or for as
many as possible.
Therefore,
efficiency should
arguably be a
priority.
Humanitarian help
and protection
could be provided
in other, more
efficient and
cost-effective
ways than asylum,
which means more
persons could be
saved (Barry
1992).
Political
theories of
asylum find the
lack of
“legitimate
political
membership” to be
decisive in
determining to
whom asylum should
be granted. They
derive claims not
from the mere
existence of
certain needs, or
the gravity of
threats, but from
the reasons
why the seeker is
in need of help or
protection, and
the implications
of these needs
with regard to
their and their
states’ political
status. Clearly,
this approach is
more promising in
terms of
justifying the
persecution
criterion.
According to
political
theories, the
claim for entry is
strongest if the
causes of
suffering, or the
risk of harm,
indicate a
“legitimacy
failure” (i.e.
involved official
actors’ failure to
attend to certain
duties). This
failure is what
invokes the
obligation of
other states to
take over the duty
to protect, and to
take as recognized
members (citizens)
those whom their
origin state
failed. Asylum, on
this approach, is
the granting of a
“non-exportable”
(Walzer 1983: 48),
“special,
political good”
(Price 2006: 431):
membership in a
legitimate state.
In
what follows, I
will introduce two
definitions of
state failure,
designed to
justify the shift
of duties from the
origin state to
(potential)
receiving state(s)
or the
international
community.
According to
Andrew Shacknove,
it is the failure
of providing for
the minimal needs
of citizens,
thereby “severing
the bond” between
state and citizen
(Shacknove 1985),
while in Matthew
Price’s account,
it is the failure
to recognize
citizens as
right-bearing
members of the
political
community (Price
2006: 2009).
Invoking the
Hobbesian
conception of
social contract,
Shacknove derives
his theory from
what he considers
to be states’
minimal
requirements,
duties that, if
fulfilled, provide
legitimacy: to
protect citizens
from harm. The
state, to stay
legitimate (to
actually remain a
state), has to
guard the “bond”
consisting of
mutual duties and
responsibilities
with its citizens,
by preventing harm
stemming from
human activity. Otherwise, Shacknove argues,
the social
contract, the
establishment of
state authority,
makes no sense—we
are back in the
State of Nature,
the “negation of
society”
(Shacknove 1985:
277). Harm can be
inflicted by human
agents or by
non-human
(natural) events.
Shacknove asserts,
however, that most
harm (including
deprivation) is in
fact the result of
human malice or
incapability. For
him, natural
disasters can
serve as grounds
for asylum, if the
state fails to
adequately handle
the situation.9
Harm can be
inflicted by state
or non-state
actors. In the
first case, the
state obviously
negates its duties
and turns against
its own citizens,
resulting in a
loss of “bond” and
therefore,
legitimacy. In the
second, the state
(willingly or
unwillingly) fails
to attend to the
duties it was by
definition created
for, the
guardianship of
social order and
the protection of
citizens. States
unable to
accomplish their
duties can
acknowledge their
failure and ask
for help from the
international
community. In this
case, the
international
community shall
assist, but shall
equally accept
refugees from the
state, as even the
state itself
acknowledged that
it has failed.
But why does it
follow that other
states have a duty
to assist in the
form of asylum? In
Shacknove’s
argumentation,
when “society
ceases to exist”,
individuals are in
dire need of membership
in another
society. This
means, (as the
international
legal framework
also recognizes),10
that every human
individual is
entitled to
citizenship,
understood as
politically
recognized
membership in an
“existing”
(legitimate)
state.
Shacknove’s
argumentative
framework presents
a dilemma. Does
the duty actually
follow from
individuals’
entitlement to
“basic goods”, as
in humanitarian
theories? Or is
the entitlement to
membership in a
legitimate society
the basic
requirement of a
just and
sustainable moral
order? If it is
the first,
belonging to a
legitimate society
is a mere tool:
“all individuals
are entitled to
citizenship” is
synonymous with
the
above-mentioned
“all individuals
have a right to
X”, where X is
understood as a
set of goods to
fulfil human
needs. In this
case, Shacknove’s
theory is not
really political,
but humanitarian,
claiming that
everyone is
entitled to
provision of basic
needs and
protection, and
therefore those
who do not have
this, should be
granted asylum in
a state where they
can have this. The
only “political”
insight
Shacknove’s
approach adds is
that if
we subscribe to
his reading of the
Hobbesian social
contract, states
are established
precisely for the
reason of securing
these goods and
provision of
security. Thus, in
this reading,
those whose basic
needs are unmet
shall be granted
membership (by
Shacknove,
equivalent to
citizenship) in
other, legitimate
societies (states)
as a tool of
protection and
provision of basic
needs. This
addition might
address the
objection
concerning the
justified pairing
of needs to
remedies raised by
humanitarian
theories, if one
interprets the
requirements of
legitimacy in such
a generous way.
On the other horn
of the dilemma, if
the entitlement to
citizenship in a
legitimate state
is a basic
requirement of a
just and
sustainable moral
order, not as a
tool for
satisfying needs
but in
itself, we
have yet to see
what justifies
this entitlement,
and why permitting
some to lack
citizenship would
be wrong.
Price offers a
justification for
this second
approach.
Price’s account is
rather strict,
aiming
specifically to
address the
persecution
criterion. His
justification is
based on a
combination of
Rawls’s Law of
Peoples, Arendt’s
(and Benhabib’s)
conception of
“rightless
persons”, and a
number of
empirical and
efficiency-orientated
arguments, some of
which were already
raised as
objections to
humanitarian
theories. For
Price, the
emphasis is not on
protection of
basic rights
(understood with
or without also
covering satisfied
basic needs), but
on membership.
The essential
question is
whether the state
is culpable for
the harm suffered
by the citizen. If
it is, harm’s
occurrence is
demonstrative of
the victim’s loss
of membership in
her society.
Based on Rawls,
Price
distinguishes
outlaw states,
inflicting
illegitimate
harm on
citizens (as
opposed to
legitimate harm,
such as
deprivation of
freedom as
punishment for a
criminal act), and
burdened, but
“good-faith”
states, lacking
resources to
prevent harm being
inflicted on their
citizens. Persons
suffering because
of their state’s
incapability, and
burdened societies
in general, can
and should be
helped in ways
other than asylum
(such as in situ
aid, temporary
protection,
resettlement
programmes, or
military
intervention). The
duty to grant
asylum is upheld
for those who have
lost membership in their society. This is
understood in
Arendtian terms:
not a temporary or
arbitrary loss of
certain rights,
and certainly not
the existence of
unmet needs, but a
status of
“rightlessness”. For Price, asylum is the
“granting of a
special political
good”—membership. Moreover,
membership is of
critical
importance because
it is a
precondition for
having rights at all. This can only be
secured—the right
to have rights can
only be
guaranteed—by
membership in a
political
community.
Underlying Price’s
theory is the
principle that no
individual shall
become
“rightless”, that
persons are
entitled to the right to have
rights.
Asylum is the
remedy to these
persons because
they, per
definition, cannot
be
assisted in
the state that
denied their
membership, unlike
other deprived or
harmed persons.
However, there is
a problematic
point
(acknowledged by
Price): the
possibility of
losing membership
by the state’s
failure to protect
citizens from
non-state
persecution. The
loss of
membership, and of
the “right to have
rights”, can also
occur when those
harmed by
non-state actors
receive no
protection from
the state. It
fails by not
providing
protection and
prosecution by
official agents,
not by inflicting
harm directly by
official agents.
For instance, when
the police
repeatedly refuse
to assist a
battered woman,
considering
domestic violence
a private matter,
whereas they
intervene in and
prosecute violent
assaults carried
out in non-private
spaces, the state
fails to recognize
the domestic
violence victim as
a rights-bearer in
failing to protect
her from a fellow
citizen. Thus, a
state’s failure to
recognize a
citizen (or
certain types of
citizens) as
rights-bearers and
full members of
that state can be
demonstrated by
ways other than
“outright” state
persecution.11
II. What does
the term
“persecution”
mean?
We have seen
that the
persecution
criterion is
normatively
justifiable
through a
political
conception of
asylum, which
derives the
duty to grant
asylum from
persons’
entitlement to
membership,
understood as
“the right to
have rights”,
and holds that
persecuted
persons are
the
appropriate
recipients of
asylum because
they were
denied
membership in
these terms.
Before
examining
whether the
nexus clause’s
enumeration of
grounds, and
the exclusion
of gender as a
recognized
ground for
persecution is
justifiable,
it is useful
to identify
the core descriptive
features of
what we
understand to
be
persecution:
what makes
some harms
demonstrative
of
persecution,
what
differentiates
this term from
“any” harm?
Surprisingly,
defining
persecution
and its moral
implications
(i.e. “what
makes it
wrong”) has
not received
much attention
from political
philosophers,
but was mostly
assumed to be
common
knowledge
(Kuosmanen
2014: 131).
Jaakko
Kuosmanen
(2014) has
established a
definition of
persecution by
unpacking
common
assumptions
based on
historical
cases.
According to
him, in order
for harm to be
considered
persecution,
there are
three
necessary, but
alone
insufficient,
conditions to
be
established:
(1)
asymmetrical
and systemic
threat; (2)
severe and
sustained
harm; and (3)
unjust
discriminatory
targeting.
(1/a)
“Asymmetrical
threat” refers
to uneven
power
relations and
capacities
between the
persecutor
(the
perpetrator of
harm) and the
persecuted
(the harmed).
According to
Kuosmanen,
this is what
distinguishes
persecution
from
inter-state
wars—traditionally
understood—where
the sides are
relatively
even, each
posing a
threat to one
another, and
each in
recognized
positions of
power. This
first
criterion is
rather
self-explanatory:
if it were not
this way, the
perpetrators
simply could
not realize
all the other
constituting
elements of
persecution.
(2) “Severe
and sustained
harm” is also
a fairly clear
condition.
Severity
distinguishes
persecution
from
discrimination,
and the
sustained
condition is
necessary to
establish that
we are not
talking about
an isolated
incident, but
one similar to
discrimination
in that abuses
are likely to
re-occur,
foreclosing
the long-term
possibility of
living a
decent life
free from
abuses. We
have seen that
in the
humanitarian
approach, the
only truly
important
nature of harm
is that it is
severe and
sustained. The
normative
relevance of
these
conditions is
in fact so
high,
according to a
humanitarian
conception,
that they
cancel the
importance of
any other
circumstance.
Kuosmanen’s
description of
(1/b)
“systemic
threat” can be
divided into
two main
sub-conditions.
One
sub-condition
concerns the widespread occurrence of harms of
a similar
nature,
distinguishing
“personal
vendettas or
small family
feuds” from
persecution
(Kuosmanen
2014: 132).
The other
sub-condition
concerns what
could be
called the
origin state’s
agency in
inflicting
harm,
including
indirect
infliction of
harm,
demonstrated
by the state’s
failure to
protect from
and/or
prosecute
intentionally
caused harm
against some
citizens. The
conception of
“systemic”
harm as
involving
state agency,
i.e. finding
the state
“culpable”,
denotes a
political
dimension of
condemnation
towards the
origin state.
The criterion
of (1/b)
“systemic
threat” is
closely
related to the
third
criterion of
Kuosmanen’s
descriptive
definition of
persecution,
(3) “unjust
discriminatory
targeting”:
one does not
exist without
the other.
This criterion
establishes
that we do not
call it
persecution
when there are
random harms
against
persons
without a
discriminatory
basis to them,
even if harms
are severe,
re-occurring
(“sustained”)
and
widespread.
The typical
case for this
would be an
unstable
state’s
inability to
enforce its
monopoly on
violence,
resulting in
high crime
rates. Unjust
discriminatory
targeting of
persons cannot
exist without
state agency
being implied,
i.e. without
the state
perpetrating
or condoning
harm against
certain
citizens.
Conversely,
the state is
unlikely to
exercise
agency in
persecution by
posing threats
or not
eliminating
threats
(establishing
the “systemic”
criterion),
without having
some
discriminatory
basis to this.
We will return
to a more
complex
examination of
the “systemic”
and “unjust
discriminatory
targeting”
conditions,
evaluating
their
normative
importance and
implications
to gender, in
the next
section.
As we have
seen in the
previous
section,
standpoints
regarding
state
culpability
set apart
humanitarian
and political
conceptions of
asylum:
according to
humanitarian
conceptions,
this condition
does not carry
normative
implications,
while under
political
conceptions,
it is
precisely this
culpability
that invokes
the duty to
grant asylum.
Political
theories draw
largely on the
normative
relevance of
“systemic”
threat,
understood as
threat
involving
state agency.
Shacknove’s
argument
emphasizes the
element of
“severity and
sustained-ness”
as carrying
normative
importance, as
well as the
harm’s
“systemic”
nature, in
that he claims
that state
agency can be
established in
virtually any
circumstance.
Within his
framework, a
state failed
by its
weakness in
ability to
protect and
provide might
not be
condemned per se, but it is declared
“inexistent”.
In this
perspective,
“asymmetric”
power
relations do
not
necessarily
have to be
demonstrated,
since the
absence of
power on part
of the state,
and the
absence of a
clearly
identifiable
persecutor,
can also
result in
rightful
asylum
applicants. In
Shacknove’s
approach, the
importance of
harm’s
“systemic”
nature
understood as
the harm being
widespread is
not justified
(“bonds”
severed with
one or a few
citizens are
bonds severed
nonetheless),
and neither is
the importance
of unjust
discriminatory
targeting.
In contrast,
Price’s
justification
addresses all
the elements
constituting
the definition
of
persecution,
putting the
emphasis on
the “systemic”
as involving
state agency
and
condemnation.
Unlike
humanitarian
theories and
Shacknove’s
quasi-humanitarian
political
conception,
Price focuses
less on
severity, as
illegitimate
harm by the
state could be
demonstrated
even in the
case of less
“severe”
harms.
Meanwhile, we
must not
forget the
distinction
between losing
a
right and
losing the
right to
have rights,
i.e. losing
membership,
which is
arguably a
rather severe
“harm” (or at
least, might
give rise to
extremely
severe harms),
and which also
justifies the
normative
relevance of
the
“sustained”
element. Price
contends that
the nexus
clause,
captured in
the element of
“unjust
discriminatory
targeting”, is
only a factual
statement. He
contends that
those who are
victims of
harms in his
conception,
i.e. those who
suffer harms
demonstrative
of all the
other
conditions
establishing
persecution,
always get
into this
position
because they
are targeted
on some
identifiable
basis.
Otherwise, we
are talking
about a
burdened
state, to be
assisted in
other ways.
Kuosmanen’s
definition is
a descriptive,
not normative,
analysis of
the issue at
hand. He
defines
persecution by
unpacking
common
assumptions in
what we refer
to when we say
“persecution”
into these
elements:
(1/a)
asymmetrical
and (1/b)
systemic
threat, i.e.
threat that is
widespread and
involves state
agency; (2)
severe and
sustained
harm; and (3)
unjust
discriminatory
targeting. If
all these
conditions are
present in a
case, then the
case is
considered to
constitute
persecution.
This
definition in
itself would
not mean that
persecution is
a normatively
justified
criterion for
granting
asylum, and
those who can
establish they
are
persecuted,
and only
those, should
have a right
to asylum.
However, based
on this
definition,
paired with
Price’s
normative
justification
of persecution
as the
appropriate
ground for
asylum, which
addresses each
constitutive
element of the
term, we can
proceed to a
more complex
examination.
The next
section will
consider
whether the
normative
concerns that
make
persecution a
justified
ground for
asylum also
apply to
gender, a case
not listed in
the nexus
clause; and
whether the
descriptive-definitive
elements that,
according to
Kuosmanen,
qualify some
harms as
persecution,
could apply to
gender-based
harms.
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