[151] Political offenders are singled out for special protection in the law of extradition for both pragmatic and humanitarian reasons. Their preemptive exclusion from the purview of extradition obligations is viewed as a necessary element of non-intervention in the internal conflicts of other states. Fortuitously, non-extradition of political offenders also serves to prevent the surrender of a person to a jurisdiction where her fair trial may be prejudiced by political considerations.

[152] Refugee law deals with political offenders more obliquely. Prior to the 1951 Convention, international instruments and organisations were cognizant of the need to exclude extraditable persons from refugee status, but the International Refugee Organisation (IRO) was the only body explicitly to consider the position of political offenders. However, unlike earlier instruments, the 1951 Convention was intended to define the legal obligations of states and this strongly coloured its drafting. Consequently, the Convention allows substantial state discretion in determining who is a refugee, including the question of whether political offenders meet the definition.

[153] The exercise of this discretion has changed in the almost fifty years since the Convention was drafted. First, refugee status determination in the West has become increasingly judicialized. It is no longer premised on largely unfettered state discretion, but is now primarily a matter of individual entitlement within a domestic legal system, albeit predicated upon falling within an 'international' definition. Second, the end of the Cold War has made the refugee regime's role in stigmatizing 'enemy' states somewhat obsolete.⁽³⁴⁸⁾ It is likely, however, that state reluctance to recognize refugees from allied states, trading partners, et cetera will endure.

[154] Refugee determination systems are a means of legitimating the continued presence (or forced removal) of persons who are evidence of the imperfect ability of receiving states to seal their borders.⁽³⁴⁹⁾ Like extradition law, refugee law also has a humanitarian role: to protect individuals differentially at risk of serious violation of their core human rights. This thesis seeks to demonstrate that persons whose actions are analogous to those of political offenders as defined by extradition law are likely to fall within this class of at-risk persons. However, because refugee law and the law of extradition do not play identical roles in international law, and because non-extradition and a grant of refugee status are not identical remedies, this analogy is not perfect. I argue that it should be curtailed in adjudicating certain refugee claims, and be extended in relation to others.

[155] For example, Chapter three concludes that absolute political offenders should not be granted refugee status unless they meet the test mandated for relative political offenders. Extradition law requires that the actions of a relative political offender by proportional to her aims. Absolute political offenders, however, automatically are excepted from the obligation to extradite because their recognition is related closely to the non-intervention rationale of extradition law. In contrast, the refugee jurisprudence begins from the premise that a state's legitimate right to prosecute treason-like activities is predicated on it allowing normal avenues of achieving political change. It follows that refugee protection can only be premised upon political violence where other means of attempting change are not available. Thus, the case of absolute political offenders illustrates that the commission of a political offense, as defined in extradition law, is not always determinative of eligibility for refugee status.

[156] Chapter Four argues that certain claimants, whose actions may not be considered criminal in the host stage, should nevertheless be recognised as analogous to political offenders, and consequently may be eligible for refugee status. Extending the political offender analogy in this way is premised on both principled and pragmatic concerns. The discussion in Chapter Four demonstrates that the analogy between political offenses and violation of the Iranian dress code or the Chinese one child family policy, for example, is apt because of the role these restrictions play within their respective states and the extent to which they are intimately related to state authority. However, the refugee case law reveals that decision-makers often fail to explore fully the context of a claimant's actions.⁽³⁵⁰⁾ Insisting that decision-makers consider whether a claimant is analogous to a political offender is a pragmatic means of ensuring that this essential exploration of context occurs.

[157] The decisions examined in both Chapters Three and Four contain meagre analysis of the appropriate relationship between commission of a political offense and the requirement that persecution be for a Convention reason. Extradition law principles have proven valuable in determining whether a claimant's actions were political or criminal, but the consequences of this determination have not been wholly thought through by adjudicators.

[158] In considering the Convention reason requirement, decision-makers tend to rely on the subjective motivation of the claimant in committing the offense, and of the state in punishing her. For example, did the claimant intend her breach of the dress code to be a political statement; did the Chinese state intend to persecute the claimant or merely enforce the law limiting the number of children a couple may bear? This 'intent to persecute' approach is likely a result of the West's use of refugee protection to stigmatize communist states during the Cold War.⁽³⁵¹⁾ Similarly, consideration of the claimant's motivation was a means of ensuring that she was politically compatible with the potential host state.

[159] Questions of this nature involving subjective intent are enormously difficult to adjudicate. More importantly, they are not determinative because refugee protection should be about protecting differentially at-risk individuals (whether the risks they face result from a conscious choice or inadvertent transgression), not about punishing wicked states.⁽³⁵²⁾ This thesis attempts to persuade the reader that, as a general rule, an individual whose claim is based on actions analogous to the commission of a political offense meets the Convention reason requirements.

[160] Refugee status entitles the holder to membership rights in a new community (be they temporary or permanent). The 1951 Convention refugee definition recognizes that serious harm because of an unchangeable characteristic (ie, race, gender) or protected characteristic (ie, religion, political opinion), excludes an individual from meaningful participation in her community, making membership of a new community an appropriate remedy. Criminal prosecution is a very formidable way of effecting this exclusion.

[161] In Quinn, an extradition case discussed in Chapter Two, the court asserted that:⁽³⁵³⁾

"... it is not our place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries in contexts and circumstances that we have not experienced, and with which we can identify with only the greatest difficulty."

348. Rogers, R, and Copeland, E, Forced Migration: Policy Issues in the Post-Cold War (1993) at 98:

"Typically states have used a more generous interpretation when refugees have come from countries that were foreign policy adversaries or when the flows were small, and a stricter interpretation when refugees have originated from friendly countries or when host countries fear being overwhelmed by a flow."

350. Decision-makers reticence is perhaps explained in part by the fact that this exploration of context necessarily involves assessing the political legitimacy of foreign governments. However, as Blum observes:

"Normative political judgments are being made in the asylum determination process. What seems essential is that these judgments should be rooted in sound political theory, in a full evaluation of the relevant facts regarding the political regime being assessed, and in the proper application of legal norms to those facts. This process should be conducted openly, as an explicit part of the adjudication process."

351. See, Hathaway, (1991), at 100-101.

352. See, von Sternberg's advocacy of an objective standard in refugee claims involving internal armed conflict. Von Sternberg, MR, "Political Asylum and the Law of Internal Armed Conflict: Refugee Status, Human Rights and Humanitarian Law Concerns" (1993) 5(2) International Journal of Refugee Law 153 at 157:

"Rather than narrowing the inquiry to the subjective intent of the parties, an objective standard is proposed which rests on grounds of public policy. In a sense, although the 'intent to persecute' is certainly relevant, it hardly constitutes the exclusive consideration for granting relief. Equally, if not more important, are the democratic values which have now been brought to bear on asylum jurisprudence and the governing statue's underlying policy of human rights and humanitarian concerns. And it is the promotion of these normative values as public policy that asylum jurisprudence should serve through the adjudicatory process, rather than fastening exclusively onto the subjective intent of the victim and the persecutor."