Women’s Gender-Based Violence as Grounds for Asylum Under the 1951 Refugee Convention and 1967 Protocol
Fehrmann, Tiia (2021)
Fehrmann, Tiia
2021
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Julkaisun pysyvä osoite on
https://urn.fi/URN:NBN:fi-fe2021051730132
https://urn.fi/URN:NBN:fi-fe2021051730132
Tiivistelmä
The exclusion of women’s experiences from the refugee discourse is inherent in the 1951 Convention refugee definition. As the language itself does not speak of gender there has been unnecessary conceptual barriers to women’s claims. However, today, seventy years after establishing the 1951 Convention it is generally accepted that the Convention refugee definition as a whole should be interpreted with an awareness of possible gender dimensions and that it is essential to define and distinguish between the terms “gender” and “sex”. The evolution of the notion of gender-related violence has had a positive impact on breaking the barriers to women’s gender-related asylum claims. It has been recognised that gender (rather than sex) may have an impact in the form of persecution, while the reasons for persecution may arise from the construction of gender in the society.
This thesis provides a gender-sensitive overview of the existing refugee discourse and examines the barriers to women’s claims for asylum under the 1951 Convention and its 1967 Protocol grounds “particular social group” and “political opinion”. Furthermore, it examines scholarly writings and interpretative guidelines to find answers to the question of, whether women’s claims for asylum will be better incorporated to the refugee discourse by adopting gender-sensitive interpretation or by adding “gender” as independent ground to the Convention. In doing so, it has analysed the 1951 Convention refugee definition elements that have deemed most problematic in gender-related cases: definition and understanding of the term “persecution”, non-state actors of persecution, and “nexus” between persecution and one of the enumerated Convention grounds. Furthermore, the thesis assesses a trilogy of cases from common law countries that have contributed to the evolutionary reading of the refugee definition for better inclusion of women’s gender-related claims to the discourse.
The drafters of the 1951 Convention left the indispensable element of flexibility on the concept of persecution on purpose to ensure that it can be applied to circumstances as they might arise. The indeterminacy has allowed the concept to evolve to the “changing nature of persecution” and include forms of harm, that may not have been relevant to the drafters 70 years ago, such as FGM or domestic violence.
Were gender to be added as a sixth enumerated ground, there would still be a need to adjudicate women’s claims to refugee on a case-by-case basis, in order to ensure their protection under international law. Adding gender as a sixth enumerated ground could, however, provide a platform for women’s experiences of persecution in the refugee discourse, in situations where women are being persecuted as women or because they are women. However, gender-sensitive interpretation of the existing grounds and the gender inclusive evolution of the State jurisprudence may provide a timelier redress to the challenge’s women face in the refugee discourse.
This thesis provides a gender-sensitive overview of the existing refugee discourse and examines the barriers to women’s claims for asylum under the 1951 Convention and its 1967 Protocol grounds “particular social group” and “political opinion”. Furthermore, it examines scholarly writings and interpretative guidelines to find answers to the question of, whether women’s claims for asylum will be better incorporated to the refugee discourse by adopting gender-sensitive interpretation or by adding “gender” as independent ground to the Convention. In doing so, it has analysed the 1951 Convention refugee definition elements that have deemed most problematic in gender-related cases: definition and understanding of the term “persecution”, non-state actors of persecution, and “nexus” between persecution and one of the enumerated Convention grounds. Furthermore, the thesis assesses a trilogy of cases from common law countries that have contributed to the evolutionary reading of the refugee definition for better inclusion of women’s gender-related claims to the discourse.
The drafters of the 1951 Convention left the indispensable element of flexibility on the concept of persecution on purpose to ensure that it can be applied to circumstances as they might arise. The indeterminacy has allowed the concept to evolve to the “changing nature of persecution” and include forms of harm, that may not have been relevant to the drafters 70 years ago, such as FGM or domestic violence.
Were gender to be added as a sixth enumerated ground, there would still be a need to adjudicate women’s claims to refugee on a case-by-case basis, in order to ensure their protection under international law. Adding gender as a sixth enumerated ground could, however, provide a platform for women’s experiences of persecution in the refugee discourse, in situations where women are being persecuted as women or because they are women. However, gender-sensitive interpretation of the existing grounds and the gender inclusive evolution of the State jurisprudence may provide a timelier redress to the challenge’s women face in the refugee discourse.
Kokoelmat
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