Table Of ContentThe Refugee Status of Persons with Disabilities
International Refugee Law
Series
Editor-i n- Chief
Professor David James Cantor
Editorial Board
Professor Deborah Anker
Professor Bhupinder Chimni
Professor Geoff Gilbert
Professor Guy S. Goodwin- Gill
Professor Liliana Jubilut
Professor Susan Kneebone
Professor Hélène Lambert
Professor Bonaventure Rutinwa
Dr. Volker Türk
volume 19
The titles published in this series are listed at brill.com/i rls
The Refugee Status of
Persons with Disabilities
By
Stephanie A. Motz
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
Names: Motz, Stephanie A, author.
Title: The refugee status of persons with disabilities / by Stephanie A. Motz.
Description: Leiden, The Netherlands : Koninklijke Brill NV, [2021] |
Series: International refugee law series, 2213-3836 ; volume 19 |
Includes bibliographical references and index. | Summary: “In many countries
around the world persons with disabilities still suffer torture, ill-treatment and
severe discrimination. Sometimes they are persecuted directly by the state,
but frequently it is their family members, society or religious institutions that
expose them to serious harm, while the state turns a blind eye to it. Persons
with disabilities make up approximately 15% of the world population and an
estimated 20% of the population of refugees and internally displaced persons.
This book examines when persons with disabilities, who are being persecuted
for reasons of their disability, are refugees and thus entitled to the protection of
the 1951 Refugee Convention and the 1967 Protocol”– Provided by publisher.
Identifiers: LCCN 2020030420 | ISBN 9789004427297 (hardback) |
ISBN 9789004427303 (ebook)
Subjects: LCSH: Refugees–Legal status, laws, etc. | People with disabilities–Legal
status, laws, etc. | Convention Relating to the Status of Refugees (1951 July 28) |
Convention Relating to the Status of Refugees (1951 July 28). Protocols, etc.
(1967 January 31)
Classification: LCC K3230.R45 M68 2021 | DDC 342.08/3–dc23
LC record available at https://lccn.loc.gov/2020030420
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/b rill- typeface.
issn 2213- 3836
isbn 978- 90- 04- 42729- 7 (hardback)
isbn 978- 90- 04- 42730- 3 (e- book)
Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi,
Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission from the publisher. Requests for re- use and/ or translations must be
addressed to Koninklijke Brill NV via brill.com or copyright.com.
This book is printed on acid- free paper and produced in a sustainable manner.
Contents
Acknowledgment ix
Abbreviations and Acronyms xi
Table of Cases xii
Table of Legislation xxvii
I Introduction 1
ii A Disability- Sensitive Interpretation of the Refugee Definition 17
A Introduction 17
B The Nature of the Refugee Definition and Its Interpretation 19
1 The Flexibility of the Refugee Definition 19
2 Competent Authorities for the Interpretation of the Refugee
Convention 22
3 Static and Evolutionary Approach to Interpretation 26
C Interpretation of the Refugee Definition according to the vclt 28
1 Applicability of the vclt (Art. 4 vclt) 28
2 One Rule of Interpretation and Good Faith (Art. 31(1) vclt) 29
3 Ordinary Meaning (Art. 31(1) vclt) 31
4 Context (Art. 31(1) vclt) 33
5 Object and Purpose (Art. 31(1) vclt) 36
6 Contemporaneous Context (Art. 31(2) vclt) 39
7 Subsequent Agreement (Art. 31(3)(a) vclt) 40
8 Subsequent Practice (Art. 31(3)(b) vclt) 43
9 Relevant Rules of International Law Applicable between the
Parties (Art. 31(3)(c) vclt) 51
10 Supplementary Means of Interpretation (Art. 32 vclt) 56
11 Treaty Authenticated in Two or More Languages (Art. 33
vclt) 60
12 Conclusion 62
D An Evolutionary and Human Rights Approach to the Refugee
Definition 63
1 An Evolutionary Interpretation of the Refugee Convention 63
2 The Human Rights Approach to the Refugee Definition 67
3 The Relevance of the crpd under the Human Rights
Approach 76
vi Contents
iii Serious Harm – ‘Being Persecuted’ 80
A Introduction 80
B Disability- Specific Forms of Serious Harm 84
1 Introduction 84
2 Extrajudicial Killings and Ritual Murders 84
3 Forced Institutionalisation and Forced Treatment 88
4 Threats to the Physical and Moral Integrity and Security 93
5 Denial of Medical Treatment and Health Care 98
6 Denial of Work, an Adequate Standard of Living and
Accessibility 107
7 Denial of Inclusive Education 115
8 Situations of War 119
9 Denial of Legal Capacity 120
10 Conclusion 121
C Disability- Specific Approach to Serious Harm in Light of the
vclt 122
1 Introduction 122
2 Interpretation according to Art. 31 vclt and Art. 32 vclt
(Drafting History) 122
3 The Relevance of Human Rights to Persecution: Different Theories
of the Human Rights Approach 128
4 Interpretation according to Art. 32 vclt (unhcr Practice and
State Practice) 137
5 Interpretation according to Art. 32 vclt (International Human
Rights Standards) 148
5.1 Introduction 148
5.2 Extrajudicial Killings and Ritual Murders 150
5.3 Forced Institutionalisation and Forced Treatment 150
5.4 Threats to the Physical and Moral Integrity and
Security 163
5.5 Right to Health Care and Medical Treatment 168
5.6 Right to Work and to an Adequate Standard of Living and
Accessibility 171
5.7 Right to Inclusive Education and Children’s Rights 176
5.8 Situations of War 178
5.9 Denials of Legal Capacity 180
6 Conclusion 182
D Conclusion on Serious Harm 182
Contents vii
iv Failure of State Protection 189
A Introduction 189
B The Level of State Protection 191
1 Introduction 191
2 The Level of State Protection in Cases with Disabilities 192
3 The Level of State Protection and a Disability- Specific
Approach 201
3.1 Introduction 201
3.2 Interpretation according to Arts. 31 and 32 vclt
(Drafting History) 202
3.3 Interpretation according to Art. 32 vclt (unhcr
Practice and State Practice) 207
3.4 Interpretation according to Art. 32 vclt (International
Human Rights Law) 216
3.5 Conclusion on Disability- Specific Interpretation 230
4 Conclusion on Sufficiency of State Protection 230
C Internal Protection Alternative 232
1 Introduction 232
2 Reasonableness of an Internal Protection Alternative for Persons
with Disabilities 234
3 Conclusion on Internal Protection Alternative 237
D Conclusion on the Level of State Protection 237
v Causal Nexus – ‘for Reasons of’ 240
A Introduction 240
B Causal Nexus and Persecutory Intent 243
1 Introduction 243
2 Persecutory Intent Approach in Cases with Disabilities 244
3 Persecutory Intent and a Disability- Specific Approach 252
4 Conclusion on Persecutory Intent 262
C Causal Nexus, Persecutory Effect and Omissions 263
1 Introduction 263
2 The Bifurcated Approach 263
3 Inability to Fulfil, Omissions and Discriminatory Effect in Cases of
Persons with Disabilities 266
4 Inability to Fulfil, Omissions, Discriminatory Effect and a
Disability- Specific Approach 277
5 Conclusion on Omissions and Discriminatory Effect 288
viii Contents
D Mixed Causes 290
1 Introduction 290
2 Mixed Causes in Cases of Persons with Disabilities 291
3 Mixed Causes and a Disability- Specific Approach 294
4 Conclusion on Mixed Causes 301
E Conclusion on Causal Link 302
vi Convention Ground – ‘Particular Social Group’ 304
A Introduction 304
B Persons with Disabilities and Membership of a ‘Particular Social
Group’ 305
1 Introduction 305
2 ‘Particular Social Group’ in Cases with Disabilities 306
3 ‘Particular Social Group’ and a Disability- Specific Approach 316
C Conclusion on Persons with Disabilities as a ‘Particular Social
Group’ 326
vii Conclusion 328
A Summary 328
B Outlook 334
Bibliography 339
Index 361
Acknowledgment
First and foremost I would like to thank Professor Martina Caroni who has
given me her full support and critical guidance throughout this Ph.D. Above
all, I thank her for giving me both the desired intellectual space and freedom,
as well as valuable advice and the eventually welcome time pressure, while at
the same time shielding me off from professional distractions when serenity
was vital.
I would also like to thank Professor Michelle Foster for providing me with
the initial spark for this thesis on the refugee status of persons with disabili-
ties. I am further grateful to the Swiss National Science Foundation for their
generous financial support, which enabled my doc.mobility research stays at
the Universities of Michigan and Oxford. The University of Michigan provid-
ed me with an exceptionally inspiring academic environment and I especially
thank Professor Jim Hathaway for his generous time and critical comments in
discussions about the fundamentals of this thesis. I would also like to thank
Professors Marshall Goldberg and Sherman Clark for inspiring me with their
fresh approaches to storytelling in legal writing and the ethical role of lawyers
and the law, which enriched my drafting of this thesis. I further thank the Ref-
ugee Studies Centre at the University of Oxford for providing me with a stimu-
lating inter- disciplinary environment in a picturesque setting and particularly
Professors Cathryn Costello and Guy Goodwin- Gill for their time and critical
inputs in discussions about this thesis.
I am eternally grateful to the disability rights trainers Abner Manlapaz and
Zara Todd for inspiring me with their unabated optimism regarding the dis-
ability rights movement and for bringing disability rights to life. They are living
proof that this world can be a better place for everyone, irrespective of abilities
and impairments. Their attitude of respect for the dignity and human rights of
every person has accompanied me ever since.
I especially thank Nesa Zimmermann for being the best dissta (dissertation
sister) imaginable, with infinite patience for boundless discussions of theoret-
ical concepts, structural disasters, identity crises and general doctoral qualms.
Very special thanks also go to Angela Hefti for implementing with me the pos-
sibly most rewarding Ph.D. plan ever and for her relentlessly critical review of
parts of this thesis. I further thank Chantal Staehelin for her expedient eagle
eyed- lecture of this script and Nina Fargahi for her unwavering friendship also
during the most isolated periods of this journey. I would also like to thank Sar-
arard Arquint and Olivier Peter for holding my position during my law firm
absences. I thank my friends on the island of Lesvos for the social distraction
x Acknowledgment
during my otherwise solitary Ph.D. retreats, and Andri Hinnen for being there
and for braving the cold Lesvos winter with me for the first time. Finally, I am
grateful to the atmosphere of the woods of the Zurich hills, which provided the
necessary calm during the intense final stretch of this journey.
