In this chapter I contemplate the future directions of feminist engagement with refugee law. Unlike other areas of international law where feminist analysis is minimal or entirely absent, refugee law has attracted considerable attention from feminist scholars and practitioners. This has led to claims that issues of gender and sexuality in refugee law have transitioned from ‘the margins to the centre’. In contrast to this view, I assert that feminist engagement with refugee law remains on periphery of the field due to the fact that gender analyses of refugee law and policy are siloed within issues that have obvious gender dimensions. I argue that the feminist agenda must include feminist examinations of all areas of refugee law and policy – not just topics where gender issues are immediately evident. I use two seemingly gender-neutral topics (the exclusion clause and the concept of surrogate state protection) to demonstrate the ways in which feminist analysis can unmask previously ignored gender concerns, interrogate and destabilise core assumptions in current policy and provide fresh and alternate insights on primary legal texts.
The chapter investigates new issues that have arisen in relation to article 1D of the Convention relating to the Status of Refugees (Refugee Convention), resulting from decisions by the Court of Justice of the European Union (CJEU) and New Zealand Immigration and Protection Tribunal (NZIPT). These judgments break away from earlier article 1D jurisprudence but there has been little analysis of the alternative approaches adopted. The chapter seeks to initiate discussion of these new directions in article 1D jurisprudence through a critical examination of the CJEU’s and NZIPT’s decisions. It is argued that in theory these precedents provide greater opportunities for Palestinian refugees to obtain the benefits of the Refugee Convention but in fact threaten the principle of continuity of international protection for Palestinian refugees. This is because the judgments adopt a skewed and narrow understanding of the meaning of ‘protection or assistance’ in article 1D and impose an evidentiary paradox by necessitating that Palestinian refugees prove that their decision to flee was involuntary.
Edited by Susan Harris Rimmer and Kate Ogg
Kate Ogg and Susan Harris Rimmer
For feminist international law scholars, practitioners and advocates, the first two decades of the new Millennium have produced moments of elation and disenchantment. It has been the best and worst of times, in the truly Dickensian sense. With respect to international law victories for women, there have been successful campaigns to further entrench women’s rights in international and regional instruments. For example, in 2002 the Rome Statute came into force, which includes sexual violence in the definition of a crime against humanity. The Maputo Protocol on the Rights of Women in Africa and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence came into force in 2003 and 2014 respectively. Women’s achievements in the international sphere have been recognised and celebrated: since the turn of this century, seven women have been awarded the Nobel Peace Prize for work relating to peace-building, democracy and human rights. International institutions have demonstrated greater awareness of and commitment to women’s rights and empowerment. This is perhaps best demonstrated by the United Nation’s (UN) eight resolutions on women, peace and security adopted between 2000 and 2015. Another institutional highlight was the creation of UN Women in 2010 – an organisation dedicated to gender equality and the empowerment of women. In some quarters of the academic community, there has been optimism about feminist international legal scholarship’s growth and potential for influence. Yet alongside these and other successes, the first two decades of the new millennium have also provided reasons for despair.