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Jason Dzubow on Political Asylum

The Obscure Swedish Diplomat Who Gave Us “Particular Social Group”

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Odds are, you’ve never heard of Sture Petrén. But if you are a refugee who has escaped persecution on account of female genital mutilation, domestic violence or sexual orientation, you may owe him your life.



If you've received asylum based on PSG, you should send your thank yous to Sture Petrén.


Sture Petrén—full name: Bror Arvid Sture Petrén—was born in Stockholm, Sweden on October 3, 1908. He studied law and philosophy at Lund University, and then served in various law courts in his home country from 1933 to 1943, when he was appointed as an appellate judge. In 1949, he was recruited by the Ministry of Foreign Affairs, where he served as the Director of the Legal Department for the next 15 years. More significantly from the point of view of history, Judge Petrén was appointed to the Swedish delegation to the United Nations General Assembly, where he served from 1948-61. He went on to other prestigious posts domestically and internationally. He was a member--and eventually President--of the European Commission of Human Rights, he was a member of the International Court of Justice, and he served as a judge on the European Court of Human Rights. In 1972, Judge Petrén was knighted by the Swedish king. He died in Geneva on December 13, 1976.


For all his accomplishments, it seems that Judge Petrén's most notable achievement is probably one that he himself did not think much about at the time: In November 1951, he added the phrase "particular social group" to Articles 1 and 33 of the United Nations Refugee Convention.


In the fall of 1951, the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons held a series of meetings to hash out the Convention on the Status of Refugees. The original Convention listed four protected categories: race, religion, nationality, and political opinion. The Swedish delegation, led by the good Judge, introduced an amendment to Article 1 adding the phrase "particular social group" or PSG. Judge Petrén offered little in the way of explanation for the addition. In the transcript from November 26, he says only that the other protected categories suggest the inclusion of a "reference to persons who might be persecuted owing to their membership of a particular social group." "Such cases existed," said the Judge, "and it would be as well to mention them explicitly." Without further discussion, the amendment was adopted that same day. Fourteen members voted in favor of the amendment, none opposed, and eight abstained (though history apparently does not record how each country voted).


A week later, Judge Petrén introduced the same amendment to Article 33 (non-refoulment), so it would be in conformity with Article 1 (modern-day U.S. immigration law derives the asylum/refugee definition from Article 1 of the Convention; the Withholding of Removal definition comes from Article 33).


So does the origin of the phrase PSG shed any light on the term’s meaning today? What—if anything—can we learn from the historic record?

First, it seems that Judge Petrén's addition to the Convention was based on the draft of a planned law in Sweden called the National Alien Act, which went into effect in 1954. The National Alien Act was, in turn, based on the existing Swedish practice of protecting aliens who were members of a PSG, though Swedish law from the 1950s apparently does not define PSG. To the extent that the modern-day Swedish Alien Act is instructive, it seems clear that sexual orientation and gender were not consider particular social groups. The modern law offers protection to people in a PSG, homosexuals, and people who face persecution on account of gender. As one commentator observed, it would be superfluous to separately list PSG, sexual orientation, and gender, if sexual orientation and gender were considered PSGs.

I could not find a copy of the old Swedish law (upon which the Convention definition of PSG was purportedly based), but it would be very surprising—even for a forward-thinking country like Sweden—if the 1950s law separately protected people based on gender and (especially) sexual orientation. My guess is that the Swedish law listed PSG as a protected category, but left the term undefined. Of course, this does not mean that PSG was meant to encompass sexual minorities and women under Swedish law or under the Convention definition. The Dead White Men who created the Convention may have been progressive for their time (though there are arguments that they were not), but it seems more than unlikely that the idea of specifically protecting gays and women was even on their radar. At least I could find no evidence in the historic record to support such a notion.


A second question is what Judge Petrén understood the term PSG to mean. I am not sure whether his understanding is relevant to anything other than historical curiosity, but it seems almost certain that he had no intention of dramatically (or even modestly) expanding the protected categories. Rather, PSG was meant as a safety net to catch people who did not easily fit into the other categories--people like aristocrats and linguistic minorities, to name a few. Indeed, Judge Petrén's comments indicate a realist, as well as an idealist. After noting that Sweden was a country of asylum in the past, he states, “but the fact must be taken into account that its capacity for absorbing large numbers [of refugees] was limited and that, particularly in the present serious state of world affairs [post-WWII], considerations of national security must play a certain part.” This does not necessarily sound like someone who wanted to greatly expand the classes of people covered by the refugee definition.


To a large degree, of course, all this is academic. The goings-on in 1951 are a long way from our reality today. Perhaps an Originalist—like a Justice Scalia—might parse Judge Petrén’s words and look back to post-War Swedish law to suss out some meaning that informs our definition of PSG today. However, given that the Convention and mid-20th Century Swedish law are pretty removed from currently U.S. asylum law, the Originalist inquiry seems like a stretch.


Moreover, laws and norms change over time. The vagaries of the past are fodder for debate today. To me, such debates are healthy and—hopefully—lead us in the direction of Justice. Although Judge Petrén probably had no intention of altering the refugee definition so dramatically, he certainly planted the seed that led to protection for many thousands of people. Intended or not, that is his extraordinary legacy.


Special thanks to Ali and Behnam for their help with this article.

Originally posted on the Asylumist: www.Asylumist.com.

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Comments

  1. ILWlurker's Avatar
    I suspect the historical context explains what is meant by "membership of a particular social group." Under the original provision, the Jews, the largest group of those persecuted by the Nazis and their allies, would not have been covered. Race? There are Black African Jews, Asian Jews. Religion? But Jews who were atheist, or Christians with Jewish ancestors, were also targeted. Nationality? Being German was no protection.
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