Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year,

I.D. No. 2215, N.U.J.S.

GENDER-BASED PERSECUTION: CRITIQUING INTERNATIONAL REFUGEE LAW FROM A GENDER & HUMAN RIGHTS PERSPECTIVE

Introduction Underlying the [Refugee] Convention is the international communitys commitment to the assurance of basic human rights without discrimination . . . . Persecution, for example, undefined in the Convention, has been ascribed the meaning of sustained or systemic violation of basic human rights demonstrative of a failure of state protection 1 Refugee movements are not simply a problem of advancing social justice through the promotion of human rights, but one of recognising deeply rooted structural inequalities and contextualising them within strategies of reform. The human rights of refugees require advocacy from this perspective. As conflicts undergo contextual and thematic change, so do the nature of refugee movements, thus illustrating the importance of relativity and situational specificity and the fact that there is no text book solution to human rights violations and population displacements. The UN High Commissioner for Refugees (UNHCR) not only recognizes refugee movements as a variable that needs constant, adaptive responses, but has also streamlined and geared its policies towards prevention, often times coming up with innovative and constantly adaptive responses to the influxes that take place. In dealing with the changing nature of complex emergencies, however, UNHCR being the lead agency, has not adequately addressed structural factors that are responsible for these displacements. For example, grounds of displacement may be deeply tied to economic factors, where severe macroeconomic inequities may result in political/ civil instability and a consequent breakdown of state machinery, Somalia being a case in point. Often enough the core issue of

]. Canada v. Ward, [1993] 2 S.C.R. 689, 733

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. redefining refugee law, which is a glaring product of structural inequities and realpolitik, is skirted. Thus hindered by an outdated Refugee Convention, UNHCR can only enhance its response capacity in limited ways. Women Claimants under Present International Refugee Law Refugee relief and rehabilitation agencies acknowledge the fact that the impact of refugee movements affects women fleeing persecution differently and therefore necessitates the need for a gender specific approach to emergency programming and community rehabilitation. The primary area of concern for women refugees is protection, which falls into three broad categories. The first is at the level of refugee status determination and the insufficiency afforded to women by the current refugee definition under international law. The second issue is that of physical insecurity surrounding women refugees not enjoying permanent settlement and the third is at the level of programming, where the basic insensitivity of officials during operations inhibits fair distribution of food distribution, access to healthcare, education, and employment.2 Of the three, the easiest to rectify, appears to be the third and some aspects of the second category of protection, which is the main thrust of UNHCR Guidelines3. The issues of legal protection and durable physical protection, which directly ties in with the former, are not easily resolved or tackled. These are deeply routed in legal discourse; functioning and response capacity of the state/administrative machinery; and actions of private actors that are either dismissed or implicitly accepted by various states.

Despite the recognition and attempts made by UNHCR in this regard, there continues to be a neglect of any such formalised approach and acceptance of existing discriminatory policies by the international community of states in dealing with women refugees. The foremost
2

Abdullahi An-Naim, Toward a Cross-Cultural Approach to Defining International Standards of Human

Rights: The Meaning of Cruel, Inhuman or Degrading Treatment of Punishment, in Human Rights in Cross-Cultural Perspective: A Quest for Consensus (1992), pp. 19-43, p. 20.
3

Kelley, Ninnette., Report on the International Consultation on Refugee Women Geneva, 15-19

November 1988, with particular reference to protection problems, International Journal of Refugee Law, vol.1(1989), p.237.

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. deficiency lies within the definition of Refugee itself as laid out by the 1951 Convention Relating to the Status of Refugees (1951 Convention) and its 1967 Protocol. The 1951 Convention as confirmed by the 1967 Protocol, defines a refugee as a person who, owing to 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.4 Although persecution is not defined by the Refugee Convention, the grounds of such persecution are listed as race, religion, nationality, membership of a particular social group or political opinion. This definition of what constitutes a refugee has been highly debated given its perception of being a cold war instrument, narrowly defined to contain future refugee flows within the South and its failure to address and recognise present day refugee movements that may be a result of economic disasters, break down of state machinery, and persecution on account of gender. In the words of Goodwin-Gill, the Convention is, ...founded upon a laudable, if highly individualistic conception of persecution, premised upon admission and integration, the Conventions capacity for narrow or restrictive interpretation in the highly structured environments of case by case adjudication leaves thousands outside or beyond protection. They become objects of ad hoc, discretionary and extra-legal policies that finally benefit no one. Individuals are commonly denied even basic rights, or any opportunity to contribute to their own solution. Administrations in turn, appear incompetent to combine humanitarian policy with effective management of their borders.5

The 1951 Convention in its narrowly defined approach, covers civil and political rights, and ignores economic, social and cultural rights. This goes against the founding tenets of human rights, which perceive human rights as interdependent and indivisible. The 1951 Convention was followed by the Organisation for African Unity Convention Governing the Specific Aspects of Refugees Problems in Africa (OAU), a regional instrument, which exerted an expansionary effect on this definition of refugee in the areas of non-refoulement and the voluntariness of
4

Art 1 (A)(2), 1951 Convention Relating to the Status of Refugees. (hereinafter Convention)

Goodwin-Gill, Guy, S., Asylum: The Law and Politics of Change, International Journal of Refugee Law vol.7 (1995), p.8.
5

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. repatriation, burden-sharing, and temporary asylum. The OAU Convention, however, also presented problems by not addressing the rights of women refugees, particularly those fleeing persecution on account of their gender.6

Although women refugees do flee persecution on grounds of persecution of civil and political rights, there are times where the root causes of their flight are flagrantly rooted in violations of their economic and social rights (often times within the vicinity of homes or closed communities) that may actually undermine their right to life. They are victims of repeated sexual abuse, rape and torture committed by private and public actors alike that may have social sanction in certain situations (female genital mutilation being an example of social acceptance in many countries), who may also be subjected to such torture by state agencies on account of their gender. If a woman chooses to transgress such a social norm, she may be subjected to life threatening persecution. Further, women may flee a country when they are kept from engaging in basic life-sustaining economic activities primarily on account of their gender and not only on account of their race, religion, nationality, political opinion or membership of a particular social group.

Non-recognition of gender as grounds for persecution then specifically leads to an interpretive problem and consequent denial of refugee status or asylum, particularly in terms of third country resettlement, to those genuinely deserving such status. States may easily dismiss people, especially women whose economic, cultural and social rights are violated as economic migrants in the absence of a well-founded fear of persecution under the five prevailing categories. Oloka-Onyango attempts to reformulate the approach to refugee status determination by critically stating the following: paradoxically, if we take the elements in the UNHCRs definition of an economic migrant, namely that their departure must be voluntary and for exclusively economic considerations as a reference point, then it is clear that a person who flees a country on account of the deprivation of her
6

Oloka-Onyango, The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of

Refugee and Internally Displaced Women in Africa, Denver Journal of International Law and Policy, vol.24 (1996), p.375.

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. economic, social and cultural rights is not an economic migrant. Such a person who has been made to suffer in this way is logically entitled to protection.7 Clearly then a deficiency exists within the existing international legal framework concerning the status of refugees, since it fails to address these issues.

It is paradoxical that at one level of analysis, under a general human rights framework international law is expansionary and womens rights are increasingly being addressed and yet at another level, under a refugee-specific framework, womens rights are either not addressed or subsumed under broader categories of persecution. Documents such as the UN Charter and the Universal Declaration on Human Rights (UDHR) may not explicitly address violence against women, nevertheless they do demand a change in existing patterns of discrimination, gender roles, and inequality constructed on the idea of sexual inferiority. Violence against women when seen under the light of these instruments can clearly be interpreted as a tenet of the Convention.

Specific instruments such as the Convention on the Elimination of Discrimination Against Women (CEDAW) call for equality between sexes by imposing obligations on states to modify or abolish discriminatory laws in areas of politics, education, work environment, marriage and legal representation. The protection capabilities of CEDAW, however, are curtailed due to heavy reservations by governments, particularly states using the Sharia as their legal code of governance. Further development on women specific legislation in international humanitarian law can be seen in the Statute of the Criminal Tribunal on Yugoslavia, where rape has been incorporated as a crime against humanity, recognising that women are the primary victims of this crime, however the exact assertion of it being a crime against gender still needs to be established. On a general level, womens human rights are being enhanced through investigation, documentation and advocacy such as the United Nations Special

Ibid., at p.365

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. Rapporteurs Report on Violence Against Women8. The report lays out a legal framework under which sexual slavery and slavery-like practices can be prosecuted as customary violations of jus cogens, in addition to being prosecuted under torture and inhumane acts. A number of rights are also provided for under other international instruments such as the Convention Against Torture (CAT), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESR) and General Assembly recommendations and declarations.

The above instruments clearly advocate the need for recognising and protecting the human rights of women within peaceful society, armed conflicts, or any situation of displacement. Yet the legal framework governing refugees fails to grant asylum or refugee status to women who are specifically fleeing such systemic violations by either public or private actors and where the state is either overtly involved or complicitous in such acts.

This restrictive legal framework is readily evidenced in case law and the state asylum adjudication process. One such case involved the rejection of the asylum claim of Sofia Campos-Guardado, a native of El Salvador who entered the United States illegally, by the U.S. Board of Immigration Appeals, which used a highly restrictive definition of persecution under political grounds and disregarded the particular social group interpretation.9 Sofia Campos, while visiting her uncle, was dragged to the edge of the farms waste pit along with her uncle, a male cousin and three female cousins. The attackers skinned the bodies of the men and shot them, while the women watched. They proceeded to rape the women, including Sofia Campos, while the female attacker shouted political slogans. She was hospitalized for fifteen days following which she moved to work in San Salvador and decided not to return to her parents for fear of being confronted by the same people there.
8

Integration of the Human Rights of Women and the Gender Perspective.

Report of the Special

Rapporteur on Violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1997/44. U.N. Doc. E/CN.4/1999/68 Add. 2.
9

Campos-Guardado vs. Immigration & Naturalization Service, 809 F.2nd 285, 287 (5th Cir. 1987),

certificate denied, 484 U.S. 826 (1987).

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. When she did finally visit home her mother introduced her to one of her cousins, whom Sofia Campos recognized as being one of the rapists. This cousin threatened her with death if she revealed his identity to anyone. Sofia Campos illegally fled to the United States after guerrillas burnt down the factory she worked at in San Salvador. Sofia Campos originally argued that she had been persecuted in San Salvador on her political opinion and membership in a particular social group knowing well that no other interpretation would be considered by the Board of Immigration Appeals. The Board of Immigration Appeals acknowledged her suffering but stated that Sofia Campos had not shown that the attackers harmed her in order to overcome any of her own political opinions. The Board concluded that the attackers may have been involved by their own political goals the record does not establish that [Ms. Campos] was persecuted on account of any political opinion she possessed or was believed by the attackers to possess.10 Sofia Campos appealed the Boards decision by contending that the Board failed to consider all relevant evidence. She argued that being in her uncles home automatically led to attributing her uncles views on her by the aggressors. She believed it was unreasonable for the Board to assume that the persecutors reasons for victimising her were different from their political motivation behind torture, execution and rape of her family members. She also argued that as an eyewitness to these assassinations, she would be permanently targeted for persecution.

The case of Sofia Campos goes to show the highly restrictive application of the refugee definition where she was not granted asylum even on grounds of political persecution. The Board of Immigration would not have considered her case had it been appealed on account of her gender. Had this been the case of refugee status determination under UNHCR, it is likely that she would have been accepted on grounds of political persecution, and in the present day determination process, on account of her membership of a particular social group. UNHCR, however, does not always have the ability to assess claims, which leaves states open to extremely abusive and restrictive interpretations without being held accountable. UNHCR Guidelines on Women note that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who, for example, face particularly severe gender-based discrimination may be considered as a particular social group within the meaning of the 1951
10

Ibid., at 288

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. Conventions refugee definition11 The above referenced case illustrates precisely why this guideline presents a serious problem for women facing persecution.

Another important case that highlights the problem with the social group theory, is the case of Gomez vs. INS, where the Second Circuit relied on an earlier decision Sanchez-Trujillo to deny the Salvadorian woman refugee status. In the Sanchez-Trujillo case, the court stated: The phrase particular social group implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.12 In the case of Gomez, the Second Circuit relied on this definition to deny her refugee status, even though she sought asylum on the contention that she was repeatedly raped and battered throughout her youth by Salvadorian guerrillas. Gomez claimed that such attacks led her to be identified as a member of a particular social group, which consequently led to her persecution. The Court, however, stated that she failed to produce evidence of women previously abused by guerrillas sharing the same characteristics of gender and youth, which would lead the guerrillas to identify them as part of a particular group. Furthermore, the Court believed that there was no evidence that she would be persecuted on account of these grounds in the future. The interpretation of the particular social group theory as illustrated in the abovementioned cases illustrates the need for reconceiving and broadening the refugee definition to include gender. This method of interpreting the definition under the 1951 Convention to process asylum claims is plagued with problems since the term social group has not been defined. Some believe that it is intended to have specific application, while others believe that it is an all-inclusive category. Although the ambiguity in the social group category of

11 12

Para 17, Note on Refugee Women and International Protection , U.N. Doc. EC/SCP/59, 1990 Quoted in Cipriani, Linda., Gender and Persecution: Protecting Women Under International Refugee Law, Georgetown Immigration Law Journal, vol.7 (1993),p.537.

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. UNHCRs Handbook13 was retained to protect any group singled out by a foreign government for victimisation, it can be narrowly interpreted, thus excluding certain asylum claims. This inconsistent usage of the social group theory often times, leads to ad hoc policies and decisions, thus preventing an institutionalized or systematic response to asylum cases. Of course, it is essential for every case to be assessed on its own individual merit; however, individual assessment through ad hocism can easily lead to abuse.

Lacunae in the UNHCRs Guidelines on the Protection of Refugee Women(1991) Due credit must be given to the fact that there is a trend towards granting asylum for victims fleeing gender related persecution by assessing their well founded fear of persecution under the category of membership of a particular social group. UNHCR, in its Guidelines on the Protection of Refugee Women, asserts that states and agencies should, Promote acceptance in the asylum adjudication process of the principle that women fearing persecution or severe discrimination on the basis of their gender should be considered as member of a social group for the purposes of determining refugee status. Others may be seen as having made a religious or political statement transgressing the social norms of their society. Promote recognition that there may be a basis for granting refugee status where a government cannot or will not protect women who are subject to abuse for transgressing social standards. The government need not itself have been the instigator of the abuse.14 Although these guidelines do not clearly implicate the full array of economic, social, cultural, civil and political rights set forth in the Womens Convention, the Economic Covenant, the Civil and Political Covenant, and regional conventions, they do address abuses suffered by refugee women. The main thrust, however, remains a needs-based approach on assessment of needs and consequent provision of services. Paras 54, 59 and 62 of the Guidelines do deal with the inequities behind granting refugee status and the protection concerns of women, but in an open-ended and non-conclusive manner.

13

Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and

the 1967 Protocol Relating to the Status of Refugees (1979). (Hereinafter Handbook)
14

Para 71.

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. Para 54 simply encourages states to consider women persecuted on account of transgressing social mores as part of a social group but it is left to the discretion of countries to follow this recommendation. These guidelines recognise the difficulties associated with women claiming refugee status. Inequities are often times characterised by the male receiving refugee status, while spouses and children that follow the male at a subsequent date often do not receive such a status automatically. The Guidelines also recognise that family reunification is not a right conferred by the 1951 Convention and should it break up, the wife may be without protection and face forcible return despite her own claim. Despite this recognition and assessment, the Guidelines do not recommend a reconception of the refugee definition and relegate their focus to increasing protection through needsassessment. Gender and the Pervasiveness of Cultural Relativism in International Refugee Law It is important to note that reconceptualising refugee law by the inclusion of a gender-related clause, should fall within the broader debate of reconceptualising refugee law in general, which is unable to satisfactorily address present day refugee problems. The primary reason for this being the inherently discriminatory system of refugee protection, which presents a double disadvantage for those seeking to ensure and broaden the protection of refugee women. The policies of many countries, particularly the Western and developed ones have become highly restrictive in a number of ways. Firstly there is systematic obstruction by governments through their non-entre regimes characterised by visa restrictions, carrier sanctions, extraterritorial processing of claims, re-admission agreements with states of origin and application of principles of safe third country and safe country of origin. Secondly there is a shifting of responsibility and burden from the North to the South. Current practices of encouraging safe havens such as those in Rwanda and Bosnia, and increased emphasis on voluntary repatriation, are all methods of containing movements within the South under the banner of durable solutions. Voluntary repatriation is undergoing a conceptual change, where the deciding factor for repatriation in current day refugee discourse is not the totality of refugee rights in and of themselves, but whether one form of action is better than 10

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. another. Safeguards have been relaxed often times leading to unsafe return (e.g. the return of Rohingya Muslims to Burma from Bangladesh). Developed countries emphasis on addressing in-country protection and reintegration discourages the right to seek asylum and people are compelled to remain in territories where their life and liberty are completely threatened. Such political pressure often enough brings about a conflict of interests for UNHCR. Western states, as witnessed over the last five decades, have undermined the obligations set forth under the present Refugee Convention, which has led to so much controversy behind the definition itself. The definition excludes those fleeing non-state agents women refugees and victims of generalised violence within states where the machinery has broken down. It is argued that refugee law is not designed to address structural inequities, however, refugee movements and international policy responses are deeply entrenched in these inequities. The treatment of asylum seekers such as US interdiction of Haitian refugees at sea, while countries such as India and Pakistan play host to a sizeable number of refugees despite being non-signatories to the 1951 Convention are ready examples of this unequal global treatment. Leading scholars such as Hathaway argue for reinvigorating refugee law through a theory of solution-oriented temporary protection and burden sharing through common but differentiated responsibility. They believe that the institution of international protection must be retooled, but do not address the problems associated with the current definition of what constitutes a refugee. Moreover, how can one convince governments of temporary protection in practical terms? The norm in refugee protection has generally been one of permanent recognition. The issue of temporary protection will continue to evoke security concerns for countries of the South and complicate the immigration politics of countries in the North. Furthermore, what would be the time frame of this temporary protection period? Would fixing the time period not entail a host of problems with states determining the right time to 11

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. repatriate refugees and even emphasize mandated repatriation? This method of

reinvigorating refugee policy and the institutions that govern it will not necessarily lead to a less restrictive definition of refugee. It does not solve the problem of making refugee law more relevant to refugee movements within poorer nations, including the asylum claims of women.

Purpose This paper attempts to provide a critique, from a gender perspective, of the doctrines and practices regarding gender- based persecution in the field of international refugee law. The author makes out a case for mainstreaming gender issues in the corpus of the law, so that it is able to fulfill its true purposes. Method The author has used the critical and postmodern feminist methods of reification, that is, problematising an established and prevalent legal structure from the perspective of gender. The focus, therefore, is taking adequate concern of issues which are peculiar to women- and arise because of women and their status, identity, and experiences in their respective societies in particular, and the world in general. Delimitations The author has limited the scope of this paper to cases arising out of women seeking asylum status because of domestic violence, and persecution by societal norms and practices. Issues such as Female Genital mutilation, or persecution because of womens sexual identities and practices- such as lesbianism- have been omitted in order to stay on the right side of the word and page limits. Also, due to the aforementioned restrictions, cases and judicial decisions from only the United States, the United Kingdom, Australia and New Zealand have been dealt with. Disposition The present article is divided into two parts. The first part demonstrates why, and how, a human rights paradigm should be incorporated into the international refugee law framework, 12

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. and how to mainstream issues of gender into the same- thus making out a case for the conceptualization and implementation of gender asylum law. The second part is a critical examination of recent cases and developments in international and domestic refugee law in the contest of state responsibility for domestic violence, and therein the author argues how the existing laws and judicial opinions need to reconceptualize and broaden the perspectives with reference to gender issues and concerns. Part I. Integrating a Human Rights Paradigm in the International Refugee Law Regime. As the Supreme Court of Canada signalled in Ward, refugee law increasingly refers to, and more explicitly acknowledges its foundation in, an international human rights paradigm. The refugee regime is generating a serious body of law that elaborates basic human rights norms and has important implications inand beyondthe refugee context. Despite this growing synchronicity and long-standing, close connections between the two fields, international human rights law continues to distance itself from refugee law. Refugee law is often treated like a poor cousin, as many human rights activists remain wary of engagement with refugee advocacy, especially individual claims to refugee status. The tension is due, in part, to unfamiliarity (among human rights academics and practitioners) with the ways in which refugee law has been evolving as international human rights law. The function of the international human rights regime is to judge whether states are fulfilling their duties under internationally agreed upon human rights norms15 and, through monitoring and publicizing, to deter future abuse: in short, to change the behaviour of states. The norms derive from the International Bill of Rightsthe Universal Declaration of Human Rights16 the International Covenant on Civil and Political Rights (ICCPR)17 and the
15

The general applicability of these human rights norms is also supported by natural law, universalist

theories. See, e.g., Katherine Brennan, Note, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 Law & Ineq. J. 367, 37172
16

Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., Supp. No. 16, U.N.

Doc. A/810 (1948) [hereinafter UDHR].

13

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. International Covenant on Economic, Social and Cultural Rights18as well as the more specialized instruments related to race19, gender20, and children.21 The regimes institutions are international monitoring bodies and it has no significant enforcement mechanisms. Refugee law provides surrogate national protection to individuals when their states have failed to fulfil fundamental obligations, and when that failure has a specified discriminatory impact. As several jurisdictions now recognize in defining the concept of persecution, the nature of those obligations is determined by international human rights standards. But refugee law is not aimed at holding states responsible; its function is remedial22. To paint with a broad brush, the international community created two regimes to address human rights abuses: one, the human rights regime, to monitor and deter abuse, and the other, the refugee regime, to provide surrogate state protection to some of those who are able to cross borders.23

17

International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, G.A. Res.

2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 51, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR].
18

International Covenant on Economic, Social, and Cultural Rights, opened for signature Dec. 16, 1966,

G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc A/6316 (1966), 999 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR].
19

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature

Dec. 21, 1965, G.A. Res. 2106A (XX), U.N. GAOR, 660 U.N.T.S. 195 [hereinafter Race Convention or CERD].
20

Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature

Dec. 18, 1979, G.A. Res. 34/180, 34 U.N. GAOR, Supp. No. 46, U.N. Doc. A/34/46 (1979), 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981) [hereinafter Womens Convention or CEDAW].
21

Convention on the Rights of the Child, opened for signature Nov. 20, 1990, G.A. Res. 44/25, 44 U.N.

GAOR, Supp. No. 49, at 166, U.N. Doc. A/44/25 (1989) (entered into force Sept. 2, 1990) [hereinafter Childrens Convention or CRC]
22

James C. Hathaway, New Directions to Avoid Hard Problems: The Distortion of the Palliative Role of The Conventions various articles define a range of rights that a State Party must grant to a refugee, over

Refugee Protection, 8 J. Refugee Stud. 289 (1995).

23

whom it has de facto authority, including protection from return and basic civil and political rights, such as freedom of association and access to the courts. Some of these rights attach because a person fulfils the

14

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S.

Human rights lawyers and scholars have viewed refugee law as too embedded in domestic immigration law and institutions. The great innovation of the international human rights movement of the past half-century was to bring human rights out of the confines of domestic legal systems and into the realm of international law and institutions. Under the Refugee Convention, the responsibility to provide international protectiona surrogate to the ruptured, national protectionis placed on states that are parties to the Convention. Thus, refugee law is implemented by states and, to the extent possible, through domestic legal systems. In many other respects, the refugee regime seems different from the international human rights regime. For example, there is no regularized monitoring of states compliance with their obligation to provide surrogate protection, although the United Nations High Commissioner for Refugees (UNHCR) serves an important supervisory function. No refugee-specific, international institutions hear inter-state complaints or individual communications. Yet refugee law is international law, grounded in an international treaty. Over the past decade especially, refugee law has been claiming its international human rights roots and evolving across national borders. As refugee law matures, judicial bodies, including states highest courts, are reviewing more refugee cases. There is also growing sophistication within some administrative systems. The work of scholars and the UNHCR, which issues non-binding legal interpretations, have become particularly salient24.

criteria of Article 1 and is under the authority of the state. Others attach only if a refugee is formally recognized and granted status by the State Party.
24

One example is the UNHCRs major role in the development of the law related to the protection of

women refugees. See Nancy Kelly, Gender-related Persecution, 26 Cornell Intl L.J. 626, 633 (1993); Hlne Lambert, Seeking Asylum on Gender Grounds, 1 Intl J. Discrim. & L. 153, 16265 (1995); Audrey Macklin, Cross-Border Shopping for Ideas: A Critical Review of United States, Canadian, and Australian Approaches to Gender-Related Asylum Claims, 13 Geo. Immigr. L.J. 25, 2830 (1998) (all discussing, inter alia, the effect of UNHCRs pronouncements on this emerging body of law).. For a general discussion of current challenges facing the UNHCR and the refugee regime, see Joan Fitzpatrick, Taking Stock: The Refugee Convention at 50, in 2001 World Refugee Survey 22 (U.S. Committee for Refugees 2001).

15

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. NGOs have played a significant role in articulating legal principles. For example, governments have relied on NGO analyses and cited them in major judicial opinions. Furthermore, several states administrative bodies and courts engage in productive dialog with one another: by borrowing, adapting, and building on each others jurisprudence and instruments such as national guidelines, they are beginning to create a complex and rich body of transnationalized international law.25 The human rights paradigm has been critical to these developments. Not only are states interpreting key criteria of the refugee definition in light of human rights principles, but international human rights law is providing the unifying theory binding different bodies of national jurisprudence. For example, following the decision in Ward, some commentators and jurisdictions have embraced the Canadian Supreme Courts concept of persecution as serious human rights abuses, injuries reflecting systemic conduct, demonstrative of a failure of state protection.26 Most recently, the House of Lords in Shah solidified an analysis of persecution constituted by two distinct elements: serious harm and a failure of state protection.27 Gender Asylum Law and the Human Rights Paradigm The development of gender asylum law28 has required a human rights framework. Gender asylum law has also been a catalytic force in itself, a major vehicle for the articulation and

25

One of the best examples of such transnationalization is the interpretation of particular social group to

include sex and gender. See Deborah Anker, Refugee Status and Violence Against Women in the Domestic Sphere, 15 Geo. Immigr. L.J. 391, 39192 (2001).
26

Canada v. Ward, [1993] 2 S.C.R. 689, 733.

The New Zealand authorities, for example, have held that, [c]ore norms of international human rights law may be relied on to define forms of serious harm within the scope of persecution. Refugee Appeal No. 71427/99, [2000] N.Z.A.R 545, 564 (para. 51) (New Zealand Refugee Status Appeals Authority).
27 28

Regina v. Immigration Appeal Tribunal, ex parte Shah, [1999] 2 All ER 545 (H.L.) (U.K.) Gender refers to the socially contingent division of roles between men and women, socially constructed

notions of feminity and masculinity, and resulting power disparities that implicate womens identities and status in society. Therefore, gender must be differentiated from sex- the latter term being dependant on biological determinism, and is not a social construct.

16

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. acceptance of the human rights paradigm. For example, the 1993 landmark decision in Ward (which, while not a gender case, elaborated the human rights paradigm) was issued at the same time as the landmark Canadian Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.29 Additionally, the UNHCR, practitioners, scholars and activists consciously have constructed gender asylum law on the edifice of international womens human rights law and the work of the international womens human rights movement. For reasons as much strategic as principled, they have argued that, in order to respond to womens experiences, refugee law needs to evolve, to transform in interpretation, rather than be amended. The bars to womens eligibility for refugee status lie not in the legal categories per se (i.e., the non-inclusion of gender or sex as one of the five grounds) but in the incomplete and gendered interpretation of refugee law, the failure of decision-makers to acknowledge and respond to the gendering of politics and of womens relationship to the state.30 Simply adding gender or sex to the enumerated grounds of persecution would not solve this problem, nor would it address cases such as those discussed below where the harm feared (an element of persecution) was unique to or disproportionately affected women. Part II State Responsibility and Family Violence The discussion below only briefly touches upon the complicated question of state responsibility in the case of non-state actors, which is a central concern for women in human
29

Canadian Immigration and Refugee Board, Guidelines Issued by the Chairperson Pursuant to Section

65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution (Mar. 9, 1993) [hereinafter Canadian Gender Guidelines]. Australia, the U.K., and the United States, among others, have also issued national gender guidelines. See Department of Immigration and Multicultural Affairs, Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers (July 1996) [hereinafter Australian Gender Guidelines]; Nathalia Berkowitz & Catriona Jarvis, Immigration Appellate Authority: Asylum Gender Guidelines (2000) [hereinafter U.K. Appellate Gender Guidelines], available at http://www.iaa.gov.uk/GenInfo/Gender.pdf; (last visited 10 August, 2006)
30

Jacqueline Greatbatch, The Gender Difference: Feminist Critiques of Refugee Discourse, 1 Intl J.

Refugee L. 518, 526 (1989) (evaluating feminist critiques of refugee law and suggesting a human rights approach which, inter alia, addresses the refugees relationship to her state); Doreen Indra, Gender: A Key Dimension of the Refugee Experience, 6(3) Refuge 3 (1987);

17

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. rights. In gender asylum law, the question is addressed in some of the most significant and most recent case law. Much of refugee lawand especially gender asylum lawprobes difficult problems of state responsibility. As a matter of doctrine, both human rights law and refugee law recognize state responsibility for human rights violations by non-state actors (although there is a dissenting, minority position in refugee law)31. Developments in human rights law have supported long-standing trends in refugee law, which grapples with fundamental questions of whether the failure of state protection arm of persecution requires direct or indirector anystate complicity, and how to locate responsibility in collapsing states or at times when there is no functioning centralized authority. Although the refugee regime is not concerned with state accountability per se, both refugee and human rights law struggle with similar questions. For example, what should be the standard for assessing the adequacy of state protection (the due diligence standard in human rights law)? Should the state be required to provide some actual reduction in the level of risk (a question that must be addressed in refugee determinations where an individual makes a claim for protection, based on concrete, specific circumstances)? Or should formal or reasonablehowever ineffectiveactions of the state suffice?32

31

Jennifer Moore, From Nation State to Failed State: International Protection From Human Rights Abuses

by Non-State Agents, 31 Colum. Hum. Rts. L. Rev. 81 (1999) (discussing non-state actor doctrine in refugee and human rights law).
32

Compare Refugee Appeal No. 71427/99 [2000] N.Z.A.R 545, 568 (para. 62) (New Zealand Refugee

Status Appeals Authority) (holding that the standard for assessing state protection requires the risk of serious harm to be below that of a well-founded fear), with Horvath v. Secretary of State for the Home Department [2001] 1 AC 489, [2000] 3 WLR 379 (U.K.) (suggesting that the refugee standard may be met when a state has a formal system of protection in place, irrespective of the applicants well-founded fear). There is some indication that the U.K. authorities may be moving away from a stricter reading of Horvath. See Secretary of State for the Home Department v. Klodiana Kacaj [2001] INLR 354 (U.K.) (suggesting that the existence of state protection mechanisms, although presumptively adequate, may not be sufficient if the refugee claimant can show that they are practically ineffective and have not eliminated the reality of risk).

18

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. As noted, one of the most visible (and prolific) emerging bodies of refugee case law concerns family violence, which remains at the margins of human rights law although it is the most pervasive form of violence against women.33 In cases of violence by husbands and male domestic partners, the question of state protection is especially complex due to different levels of interweaving responsibility and enabling of the private harm by the State. This complexity is paradigmatic of gender-specific violence, committed by private actors. For most women, indirect subjection to the state will almost always be mediated through direct subjection to individual men or groups of men.34 In Shah, the House of Lords considered how broader patterns of discriminatory treatment structurally enabled the specific violence the applicants feared from their husbands as well as the husbands threatened use of anti-adultery laws.[ In Refugee Appeal No. 71427/99, the New Zealand authorities analyzed in detail state patterns that condone family violence and discriminate against women, even where the state constitution does not formally relegate women to second-class status. It evaluated the cumulative effect of various laws including legal provisions regarding marriage, divorce, custody, and provisions of the criminal code. In Minister for Immigration and Multicultural Affairs v. Khawar35, the Federal Court of Australia found evidence of state acquiescence in discriminatory enforcement of the lawthe deliberate failures of the police to respond to a womans complaints of her husbands violence. These are some of the issues of structural discrimination that feminist critics of

33

See Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences,

Commn Hum. Rts., U.N. GAOR, 52d Sess., Provisional Agenda Item 9(a) 36, 38, 39, U.N. Doc. E/CN.4/1996/53 (1996) (describing family violence as a human rights abuse); Rhonda Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 Colum. Hum. Rts. L. Rev. 291 (1994) (both discussing the pervasiveness of family violence as a human rights abuse against women and the failure of human rights law to address it seriously). See also Pamela Goldberg, Any Place but Home: Asylum in the United States for Women Fleeing Domestic Violence, 26 Cornell Intl L.J. 565 (1993) (discussing family violence basis for asylum claim
34

Wright, Shelley., Economic Rights and Social Justice: A Feminist Analysis of Some International Minister for Immigration and Multicultural Affairs v. Khawar [2000] F.C.A. 1130, 19193 (Austl.),

Human Rights Conventions, 12 Austl. Y.B. Intl L. 241, 249 (1992).

35

available at http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1130.html (last visited 10 August, 2006)

19

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. international law have identified as essential to an analysis of state responsibility that includes the experiences of women.36 Conclusion Patriarchal nationalist ideologies and institutional misogyny in international refugee law marginalizes women and depoliticises their experiences of persecution. The vast majority of gender based research in forced migration studies provides conclusive evidence that every phase in the refugee experience is importantly gendered. Gender, as a cultural construction, defines male and female roles in society and shapes our experiences and our perceptions. Therefore it is reasonable to conclude that every phase in the refugee experience is also importantly gendered. This analysis indicates a need for both international and domestic policy makers to work against the institutional misogyny inherent in refugee law and the human rights discourse to develop a more gender sensitive approach in dealing with issues of gender-based persecution. This article only suggests some of the international womens rights issues that refugee law is now addressing. There is a growing body of refugee case law considering other forms of violence against womenincluding forced marriage, forced sterilization, forced abortion, forced prostitution, bride burning, and honour killingsand in gender, as well as other contexts, discriminatory denials of education, employment and health care. The refugee
36

Violence against women is caused by the structural relationships of power, domination and

privilege between men and women in society. Violence against women plays a central role in maintaining those political relations at home, at work and in all public spheres. The maintenance of a legal and social system in which violence or discrimination against women are endemic and where such actions are trivialized or discounted should engage state responsibility to exercise due diligence to ensure the protection of women. See Rebecca Cook, State Responsibility for Violations of Womens Human Rights, 7 Harv. Human Rts. J. 125, (1994)

20

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. status inquiry is deeply and necessarily contextualized. The case law, UNHCR interpretations, and governmental guidelines all emphasize the intensely factual nature of any refugee determination. In the discrimination context, for example, the violations often must be cumulative and of an extreme nature. In all cases, the violation must be sustained or systemic. To require a state to provide surrogate protection, the normal relationship between the state of origin and the citizen or resident must be ruptured. The refugee is fundamentally marginalized, unable to enjoy basic rights or vindicate them through change or restructuring from within her society. The nextor currentstage in refugee law may increasingly implicate economic and social rights37. As refugee law continues to mature, it may raise new state responsibility questions and interact more closely with other human rights instruments, including not only the Convention against Torture (CAT), but other conventions as well. Trafficking cases and refugee cases under the CAT, as well as refugee claims based on the right to health, hold some promise of shifting the focus away from practices in the sending countries of the South and shining the spotlight on receiving countries of the North.38 With respect to some human rights issues, refugee law has been innovative. Of course, refugee law will only continue to contribute to the elaboration of human rights norms to the extent that it develops within a human rights framework. Explicit and structured application
37

See, e.g., Chen Shi Hai v. Minister for Immigration and Multicultural Affairs [2000] HCA 19, para. 29

(Austl.) (recognizing that denial of access to food, shelter, medical treatment as well as education for children involve such a significant departure from the standards of the civilized world as to constitute persecution), available at http://www.austlii.edu.au/au/cases/cth/high_ct/2000/19.html (last visited 10 August, 2006)
38

In asylum claims based on trafficking, some of the harm the claimant fears may be from traffickers

located in the country of refuge. Similarly, the country that returns a person to face substantial health risks may be the more significant agent of harm, as the country of origin cannot provide the needed care. For example, the European Court of Human Rights back to his home country and depriving him of the treatment he was receiving constituted inhuman or degrading treatment or punishment under the European Human Rights Convention. See D. v. United Kingdom, 24 Eur. H.R. Rep. 423, 49 (1997) (Eur. Ct. H.R.).

21

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. of a human rights paradigm in refugee law is new and limited. Indeed, all the developments described in this article are nascent, contingent, and fragile. Commentators have worried that harmonization in Europe may narrow the interpretation of refugee doctrine to that of the most restrictive member state and even result in the shaping of refugee law by intra-state bodies accountable to human rights institutions.[101] The solidification of non-entre regimes has been contemporaneous with progressive evolutions in doctrine. There are many limitations to refugee law, and its being embedded in domestic immigration law and structures has been one of the most salient. Refugee law is especially vulnerable to political backlash. At times, refugee law and policy has been highly politicized, especially during certain ideologically charged eras such as the Cold War39. We may be entering another such era, and it will be interesting to see how much of a buffer the new refugee law, which came of age during the interim years, will provide. Civil society has been an important force in the refugee field. The case of Haitian women in the United States, discussed above, is one example where broad political activism has contributed to the advancement of more inclusive and internationalized interpretations of the law. The Canadian gender guidelines were the direct product of the work of NGOs and women in the government.[104] The U.S. Guidelines, inspired by the Canadian model, were the product of a continuing political and legal movement for refugee rights that began (at least) twenty years ago. Those efforts resulted in protection and status for tens of thousands both within and outside the formal terms of the Refugee Convention.[105] The Refugee Womens Legal Group, an NGO founded in part by refugee women living in the United Kingdom, wrote gender guidelines that became the basis for those of the UK Immigration Appeals Authority.[106] Critical to all of the political/legal refugee rights movements has been the human rights conceptualization of refugee law, including the call for States Parties to meet their international obligations under the Refugee Convention.

39

James C. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, 31 Harv. Intl L.J.

129 (1990) (arguing that the interests of Western states dominated in shaping the Refugee Convention).

22

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. The human rights and refugee rights movements are intrinsically connected. Increasingly, contact between the two regimesand especially between human rights and refugee practitionersis becoming unavoidable. Refugee lawyers and adjudicators are making extensive use of human rights reports. Human rights monitors are being called upon to give expert testimony and affidavits in refugee cases. Human rights NGOs are focusing more on states compliance with their obligations under the Refugee Convention, such as the treatment and protection of refugees, especially in countries of the North.40 Nevertheless, tensions continue to exist between the refugee and human rights movements. The Western media have, at times, used refugee cases to sensationalize practices such as female genital mutilation. In family violence cases, caricatured stories have been told of women at war with their cultures. Refugee lawyers can advocate for their clients with awareness of the larger human rights context, and try to guard against cultural judgments. Refugee and human rights activists can work together on issues such as trafficking, which implicate polices in the North as well as in the South. The problem of cultural relativism may lie at the heart of these conflicts between the two regimes. While refugee law may be formally non-intrusive and non-judgmental, it does make a determination of a states willingness and ability to protect a particular citizen or resident, and in so doing lays claim to an international human rights standard. When the legalized refugee regime consists almost exclusively of states in the North determining refugee claims from the South, these purportedly international human rights-based judgments seem onesided, patronizing, and hypocritical. This discrepancy is especially pronounced in gender persecution cases since violence against women (including intra-family violence) is prevalent

40

See, e.g., Press Release, Human Rights Watch, Refugee Summit: States Must Reaffirm Commitments

(Dec.11,2001),available at http://www.hrw.org/press/2001/12/refcon1211.htm; Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (1998), available at http://www.hrw.org/reports98/us-immig. See also Amnesty International, Lost in the Labyrinth: Detention of Asylum Seekers (1999), available at http://www.rightsforall-usa.org/; Lawyers Committee for Human Rights, The Denial of Due Process to Asylum Seekers in the United States (2000), available at http://www.lchr.org/refugee/is_this_america_toc.htm.

23

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. throughout the world. As Audrey Macklin has commented, Western countries may be unwilling to believe that their own mechanisms of protection are inadequate, as the phenomenon of gender persecution challenges the self-understanding of so-called nonrefugee producers.41 In a similar vein, refugee laws human rights claim may send a destructive message to womens rights communities in the South by making judgments that lack nuance and even stereotype under cover of an international standard. But in this respect, refugee law is not unique. Like all legal regimes, it makes a particularized assessment that tends towards bounded categorizations and incomplete portrayals of individuals and societies circumstances. While refugee law uses limited, legal categories, its factual scope is necessarily broad and complexmore so perhaps than many other areas of the law. [Refugee laws] adjudication is not a conventional lawyers . . . exercise of applying a legal litmus test to ascertained facts; it is a global appraisal of an individuals past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose.42 Refugee law does embrace some of this complexity; it recognizes, for example, that identities may be socially constructed and multifaceted. The refugee definition does not fix a refugee claimants individual or group identity. Rather, it emphasizes the persecutors perception of the refugee claimants social status or opinion. Furthermore, it does not force a choice of one particular ground of persecution, as claims can be based on any combination of the five grounds. Refugee law reflects the human rights communitys own analyses of human rights conditions in various countries. It also reflects the human rights communitys own tensions and dilemmas.

41 42

Audrey Macklin, Refugee Women and the Imperative of Categories, 17(2) Hum. Rts. Q. 214, 264 (1995). Regina v. Immigration Appeal Tribunal, ex parte Shah, [1999] 2 All E.R. 545, 561 (H.L.) (U.K.) (Lord

Hoffman quoting Judge Sedley in an earlier decision, Ex Parte Shah, [1997] Imm. AR 145).

24

Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. Refugee law offers a particular structuring that confronts the human rights questions, but less contentiously than under the human rights regimes more ambitious framework. Refugee law does not seek to reform states and does not address root causes. Its role is palliative; it represents the interests of the individual in dissociating herself from her community and her State. This is not to deny that the broader goals of the human rights community are important or that refugee law may at times make an indirect contribution to them. Refugee law may also complicate the work of human rights lawyers and activists, especially when its purposes are misunderstood. Moving forward will require greater clarity about the differences, as well as the similarities, between the two regimes.

Refrences 1. Abdulrahim, D. (1993) Defining Gender in Second Exile: Palestinian Women in West Berlin. In Buijs, G. (Ed.) Migrant Women. Oxford. Berghahn Books. 2. Crawley, H. (1999) Women and Refugee Status. Beyond the Public/Private Dichotomy in U.K Asylum Policy. In Buijs, G. (Ed.) Migrant Women. Oxford. Berghahn Books. 3. Gilad, L. (1999) The Problem of Gender Related Persecution. In Buijs, G. (Ed.) Migrant Women. Oxford. Berghahn Books. 4. Krulfeld, R.M. (1994) Changing Concepts of Gender Roles and Identities in Refugee Communities. In Camino, L. & Krulfeld, R.M. (eds.) Reconsrtucting Lives, Recapturing Meaning. Gordon & Breach. 5. McSpadden, L.A. & Moussa, H. (1993) I Have a Name: The Gender Dynamics in Asylum and Resettlement of Ethiopian and Eritrean Refugees in North America. In Buijs, G. (Ed.) Migrant Women. Oxford. Berghahn Books.

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Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S. 6. Macklin,Audrey., Refugee Women and the Imperative of Categories, 17(2) Hum. Rts. Q. 214, 264 (1995). 7. Rebecca Cook, State Responsibility for Violations of Womens Human Rights, 7 Harv. Human Rts. J. 125, (1994) 8. James C. Hathaway, New Directions to Avoid Hard Problems: The Distortion of the Palliative Role of Refugee Protection, 8 J. Refugee Stud. 289 (1995). 9. Katherine Brennan, Note, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 Law & Ineq. J. 367, 37172 10. Oloka-Onyango, The Plight of the Larger Half: Human Rights, Gender Violence and the Legal Status of Refugee and Internally Displaced Women in Africa, Denver Journal of International Law and Policy, vol.24 (1996) 11. Goodwin-Gill, Guy, S., Asylum: The Law and Politics of Change, International Journal of Refugee Law vol.7 (1995), p.8. 12. Integration of the Human Rights of Women and the Gender Perspective. Report of the Special Rapporteur on Violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1997/44. U.N. Doc. E/CN.4/1999/68 Add. 2.

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Optional Paper on International Refugee and Humanitarian Law; Final Project Submitted by: Saurav Datta, 5th Year, I.D. No. 2215, N.U.J.S.

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