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«LL.M International Law Thesis “An Analysis of Refugee Law Pertaining to the Validity of Women Constituting ‘a Particular Social Group’; With ...»

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An Analysis of Refugee Law Pertaining to the Validity of Women Constituting ‘a Particular Social Group’; With Specific

Reference to Female Genital Mutilation as Grounds for Determining Refugee Status

LL.M International Law

Thesis

“An Analysis of Refugee Law Pertaining to the Validity

of Women Constituting ‘a Particular Social Group’; With

Specific Reference to Female Genital Mutilation as

Grounds for Determining Refugee Status.”

Submitted in part fulfilment of the Degree of LL.M International Law at the University of Glasgow 29th August 2008 Nicola Manison LL.B (Hons.)     0306657 Page 1 Nicola Manison LL.B (Hons.)    An Analysis of Refugee Law Pertaining to the Validity of Women Constituting ‘a Particular Social Group’; With Specific Reference to Female Genital Mutilation as Grounds for Determining Refugee Status Abstract This dissertation primarily examines a contentious issue of recent times, that of, women attaining refugee status on the basis of ‘membership of a particular social group’, as enumerated in article 1 of the 1951 Refugee Convention, and it attempts to reconcile disparate concerns held by the international community regarding such claims. Following a brief introduction to refugee issues, a general overview of refugee law will be given in chapters two and three. The fourth chapter sets in motion the main body of the dissertation which focuses on women who have suffered gender- based persecution and their claims for asylum. In the fifth chapter, the crux of the dissertation, specific reference is made to the widespread practice of female genital mutilation as grounds for refugee status. The sixth chapter embodies an analysis of the topic and considers human rights, interpretation and criticisms of the 1951 Convention and enforcement measures. Proposals for reform are dealt with in the seventh chapter: they include an interpretation revamp of the 1951 Convention, suggestions for enforcement mechanisms, the possibility of including a sixth ground, and the need for social change. Many sources were used in the course of this critique including: case law, international law documents, domestic legislation, texts, journals, electronic sources and other media. Fundamentally, this dissertation challenges the argument that women do not fall within the ambit of the 1951 Convention and that persecution may only be executed by a State. Thus, it is argued that persecution may be commissioned by non-State actors for the purposes of inflicting harm on women and that certain groups of women, who have a well-founded fear of gender-based persecution including female genital mutilation indeed, represent ‘a particular social group’ and may also have a claim under political opinion. It is acknowledged that

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procedural, interpretation and application obstacles have often impeded women’s access to the protection that the 1951 Convention affords to them. In order to facilitate women’s access to refugee protection, interpretation of the 1951 Convention and social perceptions ought to adjust which, in turn, will provide women with absolute protection of the 1951 Convention: protection which, at present, seems to be lingering in the shadows behind many deep rooted stereotypes.

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The 21st Century has witnessed different forms of migration and new refugee situations all facilitated by globalisation.1The rights of refugees are of growing concern as the international community strives to maintain international peace and security which is the prime objective or raison d’être of the United Nations.2 Mass exoduses of people can pose a threat to international peace3, therefore the organ charged with presiding over refugee matters is the Office of the United Nations High Commissioner for Refugees. Many complexities surround refugee law and the issues involving refugees continue to grow in magnitude and convolution.4 Essentially, refugee law is premised on the concept that refugees are entitled to claim the benefit of a premeditated and coherent system of rights.5 This body of law seeks to alleviate the suffering of victims of persecution and acts as a surrogate form of protection in the absence of national protection,6 thus conferring refugee status upon an individual on a temporary basis and has as its main goal voluntary repatriation.

Human rights have developed at a rapid pace over the past sixty years impacting profoundly on the renovation of International Law.7 Refugee Law may be regarded as 1 Kneebone, S. (Ed.), The Refugees Convention 50 Years On, Globalisation and International Law, 2003, Ashgate Publishing, p. 5 (henceforth Kneebone, The Refugees Convention 50 Years On) 2 Article 1, Charter of the United Nations, 892 UNTS 119, 26 June, 1945 3 Resolution 841 (1993) on Haiti 4 Gowlland-Debbas, Vera (Ed.), The Problem of Refugees in the Light of Contemporary International Law Issues, 1996, Martinus Nijhoff Publishers, 3, (henceforth Gowlland-Debbas, The Problem of Refugees) 5 Hathaway, J.C., The Rights of Refugees under International Law, 2005, Cambridge University Press, p. 4, (henceforth Hathaway, The Rights of Refugees) 6 Attorney General v Ward [1990] 2 FC 667, 67 DLR (4th) 1.

7 Agius, E. et al, Future Generations & International Law, Law and Sustainable Development Series, 1998, Earthscan Publications Ltd, p. 40

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that the rights of the individual, although not protected by their State of nationality, are protected elsewhere in the international community. In essence, it is a vehicle which provides surrogate protection for individuals and tries to guarantee their enjoyment of fundamental rights and freedoms. Female genital mutilation and domestic abuse, for example, are not considered punishable in many States therefore, International Law allows for the victims to seek refuge in other States.9 International Law is focused on intercourse between States, whereas Human Rights Law is concerned with the rights of individuals. Traditionally, Refugee Law existed independently of Human Rights Law and was primarily focused on State territorial jurisdiction and the crossing of borders. However, in recent years Humanitarian Law and human rights have penetrated the Refugee Law field and currently, Refugee Law exists between these two areas veering more towards the human rights sphere. It is important that such conditions are taken into account however, while Refugee Law is expanding this must not impinge on the existing established principles of Refugee Law as it stands.10 The fear always exists in the international realm that in broadening a definition one would place greater responsibilities upon States and further reduce their sovereignty and autonomy in international affairs. It seems that States are becoming more restrictive in their definitions of what criteria an individual must satisfy in order to be recognised as a Convention refugee.11 Governments’ concerns seem to be at odds 8 Hathaway, J.C., The Rights of Refugees under International Law, 2005, Cambridge University Press, p. 5 9 Ibid., x 10 Gowlland-Debbas, The Problem of Refugees, x 11 Goodwin-Gill, Guy, S., McAdam, J., The Refugee in International Law, Third Edition, 2007, Clarendon Press, p. 15 (henceforth Goodwin-Gill, The Refugee in International Law)

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with one another, wishing to maintain a reputation of respect for human rights while trying to shed the ‘burden’ of the refugee ‘problem’. A narrow definition does not adequately safeguard those who are in need of the protection of a host State. As modern International Law is premised on the maintenance of international peace and security and the protection of fundamental human rights, States should not continue to monopolise the international legal system. Therefore, a balance must be struck between the two interests in order to maximize protection for potential refugees whilst upholding fundamental principles of International Law such as State equality and sovereignty.

This paper will commence by giving a brief overview of Refugee Law and genderbased persecution as a backdrop for the main body of the thesis which will examine the validity of the claim that women, who have undergone or have a well-founded fear of being subjected to gender-based persecution namely female genital mutilation, constitute ‘a particular social group’ for the purposes of claiming asylum under the 1951 Refugee Convention. Furthermore, the critique will reflect on other forms of gender-related persecution such as domestic abuse and rape as well as examining human rights issues and political opinion relative to women, which all correlate to the analysis of female genital mutilation and shed necessary light on the subject in relation to asylum claims. The marginalisation of women in the context of Refugee Law and asylum systems will also be evaluated and I intend explore the current safeguards in place to protect those seeking asylum. Refugees travel by air, sea and foot to reach safety, often having lost everything they once possessed, to find that their greatest obstacle is convincing immigration authorities that they are in fact

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entitled to claim asylum and assume refugee status.12 For this reason I have also considered procedural reform and the need to foster a non-stereotypical interpretation of current legislation.

For some, classing women as a social group, effectively half the world’s population, would open the flood gates for incessant, unquantifiable claims. However, by accepting that women may represent a social group, under certain circumstances, does not mean to say that every woman will automatically meet the criteria simply by being a woman per se:13 other criteria must still be fulfilled.

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Despite the existence of legislation in respect of refugees and a myriad of NGO’s dedicated to defending their rights, much confusion remains, with many not being able to distinguish between refugees, asylum seeker’s and internally displaced persons.

A refugee is someone who is physically outside their country of origin and has a wellfounded fear of persecution if he or she were to return to the country of origin. The individual must cross an international border and an indication that they are fleeing persecution should be evident, that is, the person must have a ‘well-founded’ fear of persecution based on any one of five grounds: race, nationality, religion, membership 12 Hathaway, The Rights of Refugees, 1 13 Haines, R., ‘Gender-related persecution’, in, Feller, E. et al (Ed.), Refugee Protection in International Law, UNHCR’s Global Consultations on International Protection, 2003, Cambridge University Press, p. 327, (henceforth Haines, ‘Gender-related persecution’)

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of a particular social group, political opinion.14 Additionally, there should be an absence of protection on the part of their State of origin in the form of inability or unwillingness.

Asylum seekers are those who have not yet been granted refugee status but are in the process of applying. Internally displaced persons are those who have been forced to flee their homes in fear of persecution and to relocate within the same territory. In recent years it has become increasingly difficult to distinguish between refugees and IDP’s as the number of IDP’s has surpassed that of refugees.15 The word ‘refugee’ is one we hear more and more frequently. It is a word, which for many, has negative connotations or evokes feelings of pity. Throughout history the world has, on numerous occasions, witnessed mass migrations of people for various reasons. Many refugees have gone on to contribute greatly to their host countries, for instance, the UK boasts a number of success stories in the form of refugees making noteworthy contributions in cultural, social and economic aspects which have now become engrained in British culture.16 Well known refugees include Sigmund Freud (psychoanalyst), Sir Montague Burton (founder of Burtons), Michael Marks (founder of Marks & Spencer), Albert Einstein (Physicist), Karl Marx (Philosopher) and Mika 14 The UNHCR, Preamble, Convention Relating to the Status of Refugees, 189 UNTS 137, 28 July 1951 (henceforth 1951 Convention) 15 United Nations Publication, Department of Public Information, Basic Facts about the United Nations, 1998, United Nations Publication, p. 253, (henceforth UN Publication, Basic Facts about the United Nations) 16 For example, 18 Nobel Peace Prize winners, 16 Knights, 71 Fellows of the Royal Society, Scottish Refugee Council, Press Release, ‘Refugee Week Scotland ‘08’, Press Release, June 2008 www.scottishrefugeecouncil.org.uk/press/RedRoadReplicasPR (henceforth Refugee Week Scotland, Press Release)

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(musician).17 In spite of this, for many, the word ‘refugee’ continues to generate unconstructive connotations, implying that ‘refugees’ are a burden and State liability.18 People leave their homeland for many reasons including: war, totalitarian governments, human rights abuses and other forms of persecution. At the end of 2006 it was estimated that there were 9.9 million refugees in the world with the UK providing refugee protection for a miniscule fraction of that number.19 The vast majority of refugees flee to developing countries or neighbouring countries. Pakistan receives most refugees in the international community.20 Ergo, contrary to popular belief most of the receiving states are, in reality, developing countries and not, in fact, the United Kingdom. This places a greater burden on the already limited resources of developing countries.

The United Nations’ body which governs matters relating to refugees is the Office of the UN High Commissioner for Refugees (UNHCR). It was established in 1951 by the UN General Assembly,21 carries out humanitarian work and has three main functions: to provide protection for refugees, seek out solutions to refugee dilemmas and to provide them with support.22 17 The Scottish Refugee Council, Refugee Week Fact Pack 2008, http://www.scottishrefugeecouncil.co.uk, (henceforth Scottish Refugee Council Fact Pack 2008) 18 Van Selm, Joanne et al, The Refugee Convention at Fifty, A View from Forced Migration Studies, 2003, Lexington Books, p. 66 19 The UK hosts roughly 3% of the world’s refugees which is around 302,000 people, The Scottish Refugee Council Fact Pack 2008 20 Ibid.



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