THE REFUGEE DEFINITION AND BARRIERS TO WOMEN’S CLAIMS: 1951 CONVENTION AND 1967 PROTOCOL UNDER SCRUTINY

Abstract

This thesis examines the insufficiency of the 1951 Convention to take into account the nuanced reality of women's gender-based persecution and the barriers to women's claims. It limits itself to examining the two most frequently evoked Convention grounds, namely "particular social group" and "political opinion." Reviewing the relevant judicial practice from United Kingdom, Australia, New Zealand, Canada, and United States, and by assessing scholarly writings and interpretative guidelines, this thesis seeks to find answers to the question: whether women's claims for asylum can be better incorporated into the refugee discourse by adopting gender-sensitive interpretation or by adding "gender" as an independent ground to the Convention. The introduction provides an overview of some of the feminist critiques arising from scholarly writings forming the basis of the thesis. It continues to examine Article 1A(2) of the Refugee Convention and finds that the barriers to women's claims are threefold. First, the harms suffered by women are often seen as cultural practices or religious norms rather than persecution, which is required to meet the refugee definition. Second, the refugee definition is constructed with State persecution in mind, while in most women's gender-based claims, the persecution is the result of a societal norm or is committed by non-State actors. Third, the refugee definition requires a nexus element between the feared harm or persecution and one of the five grounds (race, nationality, political opinion, or membership in a particular social group). The thesis continues to examine the challenges surrounding the gender-sensitive definition of the term "persecution" and the term "gender-related persecution," establishing that women can be persecuted as women and because they are women. The thesis further examines the perpetrators of harm and establishes that, although persecution is traditionally related to action by the State authorities, persecution may also emanate from non-State actors. The nexus element is examined by a review of the three consistent cases and the evolution of bifurcated nexus analysis. In contrast to harmonized practice, the thesis demonstrates the unpredictable and unequal development of jurisdiction in the United States, placing women asylum seekers in a disadvantaged position compared to asylum seekers in other States. Finally, after examination of the "particular social group" and "political opinion" grounds, the thesis examines whether the gender-sensitive interpretation of the existing grounds or adding gender as the sixth enumerated ground would better incorporate women's experiences into the refugee discourse, concluding the thesis.