Refugee Law, Gender and The Concept of Personhood

International Journal of Refugee Law Vol. 25 No. 3 pp.
470501
The Author (2013). Published by Oxford University Press. All rights reserved.
For Permissions please email: journals.permissions@oup.com
doi:10.1093/ijrl/eet034
Refugee Law, Gender and the Concept of

Personhood
GEORGINAFIRTH & BARBARAMAUTHE*
Abstract
Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

This article recognises that the notion of refugee is a politically and legally contested space
and does not wish to undermine the theoretical and practical gains that have been made
by critical approaches to refugees. Nevertheless, it argues that it is time for a new approach
that avoids essentialising female refugees in terms of their gender and culture, and that cre-
ates a space for a more complex dialogue between the person seeking refugee status, those
representing her, and those making decisions. The argument builds on recent critiques that
suggest that existing practices risk appropriating a refugee womans experiences in a way
that subverts her self-understanding by abstracting her gender and fragmenting her iden-
tity in order to define her as a victim of persecution. The concept of personhood is used
to encourage decision makers to consider a more complex construction of the realities of
refugee womens myriad experiences
The right to asylum is a void, the concept of a refugee is a judicially undefined

notion, and the whole area is left open to political interpretations.1
1.Introduction
The concept of asylum is deeply rooted in the traditions and narratives of
Western states and, whilst many states have adopted a variety of measures
to make it more difficult to file an asylum claim in the last two decades,
none have suggested abandoning asylum altogether or even narrowing the
criteria substantially.2 At the same time, refugee lawyers have succeeded
in winning important court victories that have widened the scope of asy-
lum and taken into account some of the concerns expressed by critics of
refugee law. For example, courts have stretched their interpretations of the
term persecution in order to encompass domestic violence, female genital
mutilation and other harms inflicted by non-state actors.3 In this respect,
legal developments have marked a major departure from the traditional
focus of asylum on protecting people subjected to persecution carried out
* Lecturers in Law, Lancaster University. The authors would like to thank Dr Sara Fovargue for her
very helpful comments on earlier drafts of this article.
1
J Valluy, La fiction juridique de lasile (2004) 63 Plein Droit, translated in J Freedman, Gendering the
International Asylum and Refugee Debate (Palgrave Macmillan, 2007), 74.
2
M Price, Rethinking Asylum: History, Purpose and Limits (CUP, 2009).
3
Eg, see R v Immigration Appeal Tribunal and another ex parte Shah [1999] 2 AC 629, and K and Fornah v
SSHD [2006] UKHL 46.
Refugee Law, Gender and the Concept of Personhood 471
by agents of the state and this has led Anker to claim that International
refugee law is coming of age.4
However, the question of who should benefit from asylum policies
remains a matter of continual debate amongst those concerned for female
refugees, and it is the goal of this article to focus exclusively on her sit-
uation.5 While much progress has been made in fitting the concerns of
refugee women into the 1951 UN Convention Relating to the Status of
Refugees (the Convention), gender,6 as an issue per se, is still considered
to be relevant only to a particular set of cases, rather than as a pervasive

aspect of refugee law.7 Furthermore, the human rights approach, upon
which much Western asylum law jurisprudence is now based, has proved
to be arbitrary in its application and unsatisfactory in protecting women
refugees. Traditionally, asylum was understood to protect those who have
a well-founded fear of being persecuted by state agents for reasons of race,
religion, nationality, or membership of a particular social group or politi-
cal opinion.8 Indeed, the Convention and its 1967 protocol, which form
the basis of most of the existing asylum regimes in the world, reflect the
situation at the time the Convention was drafted, when those who sought
refuge typically fled from totalitarian states. However, many who claim
asylum today are fleeing violence committed by guerrilla armies, criminal
gangs, family members and clans, as well as government security forces.9
Other modern reasons for migration flows include state breakdown, fam-
ine, poverty and natural disasters. These realities have put pressure on the
traditional focus of asylum and have led to an increasing need to con-
sider asylum in humanitarian terms; a position that has now been reflected
in international law. For example, in 1994, the United Nations High
Commissioner for Refugees (UNHCR) explicitly endorsed the protection
of human security as its guiding principle.10 This was an important shift as
it is no longer the quality of refugee that entitles a person to protection; it
is the need for protection that entitles a person to treatment as a refugee.11
4
D Anker, Refugee Law, Gender and the Human Rights Paradigm (2002) 15 Harvard Human
Rights Journal 133.
5
Practical considerations, in particular the need to keep to a word limit, inhibit exploration of
related issues, such as sexual orientation and gender identity.
6
Although related issues, such as gender identity and sexual orientation, have now begun to receive
serious consideration within international human rights law. See specifically OHCHR, Report of the
Human Rights Commission for Human Rights on Discriminatory laws and practices and acts of
violence against individuals based on their sexual orientation and gender identity, A/HRC/19/41 (17
Nov 2011).
7
A Macklin, Refugee Women and the Imperative of Categories (1995) 17 HRQ 21377; N
Oswin Rights Spaces: An Exploration of Feminist Approaches to Refugee Law (2001) 3 International
Feminist Journal of Politics 34764; T Spijkerboer, Gender and Refugee Status (Ashgate, 2000).
8
Refugee Convention, art 1A (2).
9
Price, above n 2,5.
10
UNHCR, The State of the Worlds Refugees 19978: A Humanitarian Agenda (OUP NY, 1997);
UNHCR, Note on International Protection A/AC/96/830, 7 Sept 1994.
11
Price, above n 2,5.
472 Georgina Firth and Barbara Mauthe
This change in emphasis, coupled with pressure from activists, has led to
a change in the national laws of some Western states who have broadened
their interpretations of persecution in order to make asylum available to
many groups who were traditionally excluded, including women fearing
domestic violence.12 In part, this has come about through national courts
linking refugee law to human rights law and interpreting persecution as
the sustained or systematic violation of human rights demonstrative of a
failure of state protection.13 Whilst this has had significance for female ref-
ugees, as it has broadened eligibility for asylum to include claimants who

have been victimised by private parties, it has only indirectly addressed the
particular problems faced by female refugees.
The system of international laws and conventions that have developed
in relation to the protection of refugees supposedly operates on a gender
neutral basis. However, over the past thirty years, some critics have argued
that this is not the case and that the laws, as they have been interpreted, fail
to sufficiently recognise and protect female refugees. This is because the
rather vague refugee definition was drafted with the situation of male refu-
gees in mind, and its application has been further undermined by deeply
gendered practices within states that fail to offer protection to women
because their persecution is not recognised.14 The appearance of gender
as an issue in general refugee law discourses has largely been the result of
engagement, since the 1980s, by non-governmental organisations (NGOs),
activists and academics who recognised and critiqued the gender blind-
ness of refugee law. These engagements with dominant discourses have
had some success as they have led to increased sensitivity at the interna-
tional level to the concerns of refugee women,15 and to a re-interpretation
of the Convention category of particular social group to include gender
based persecution. Thus, refugee women now at least have a place to stand
in the law. However, it has been suggested that whilst these approaches
have been valuable they have, to a large extent, sacrificed context spe-
cific, accurate representations of refugee womens diverse experiences to
accommodate liberal rights structures.16 After all, the traditional view of
the refugee is of a mobile, autonomous, rights bearing individual whose
12
Eg, see R v Immigration Appeal Tribunal and another ex parte Shah [1999] 2 AC 629. The UK and
Canada have also amended the persecution requirement by granting certain non-persecuted refugees
the same legal status as those who are persecuted. In the UK, humanitarian protection is available to
those who face a real risk of torture, inhuman and degrading treatment or a serious and individual
threat to a persons life or person by reason of indiscriminate violence in situations of international
or internal armed conflict, <http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyand-
law/asylumpolicyinstructions/apunotices/hpanddl.pdf ?view=Binary>.
13
Price, above n2.
14
Freedman, above n1.
15
Eg, UNHCR, Guidelines on the Protection of Refugee Women 1991; UNHCR, Women at Risk
programme.
16
Oswin, above n7.
rights are violated by the state in the public sphere. In contrast, engage-
17
ments with refugee law have clearly shown that this traditional view reflects
a male paradigm that privileges male dominated public activities over
the activities of women, which, it is said, take place largely in the private
sphere and have therefore largely gone unrecognised. Attempts by critics
to disrupt that male paradigm, by focusing on female activities in the pri-
vate realm, and by seeking to insert the person of the refugee woman into
inadequate legal structures, have been limited, and have tended to repro-
duce the same binary structures that they sought to undermine by treating

gender as something separate from the mainstream refugee categories. In
part, this is due to the difficulty of translating theoretical gains into effec-
tive practical strategies that can be utilised by practitioners to translate
the female refugees narrative into a claim that will appeal to the world
view of the decision makers. It is perhaps not surprising that in a system
that relies heavily on interpreters and lawyers as cultural intermediaries,
the complexities of the claimants self-understanding can get lost in the
process and her identity may become fragmented in order to present a
successfulcase.
This article recognises that the notion of refugee is a politically and
legally contested space and does not wish to undermine the theoretical
and practical gains that have been made by critical approaches to refugees.
Nevertheless, it argues that it is time for a new approach that avoids essen-
tialising female refugees in terms of their gender and culture, and that
creates a space for a more complex dialogue between the person seeking
refugee status, those representing her, and those making decisions. As the
concept of refugee is not a stable category, there is room for disruption,
contestation and continual reconstruction. In the modern asylum process,
refugees have had little or no power to influence the manner in which
decisions are made about them. The constructions that they must live with
have been created by lawyers, judges, academics, activists and government
officials. This places a heavy burden on those working in the asylum field
to be conscious of the potential effects of those constructions and to reflect
on whether the identities that are created are habitable by the people they
are created for.18 The argument builds on recent critiques that suggest that
existing practices risk appropriating a refugee womans experiences in a
way that subverts her self-understanding by abstracting her gender and
fragmenting her identity in order to define her as a victim of persecu-
tion. The concept of personhood is used to encourage decision makers to
consider a more complex construction of the realities of refugee womens
myriad experiences, because to do otherwise sends an alienating message
17
A Rao, Home-Word Bound: Womens Place in the Family of International Human Rights
(1996) 2 Global Governance 45497.
18
Spijkerboer, above n 7,6.
that pits gender against other cultural aspects of her personality such as
race, nationality and religious identity.19
2. The Refugee Convention

The Convention, and its 1967 protocol, is the only universal conven-
tion that provides for the protection of refugees. It is thus the basis for
many refugee and asylum regimes and laws. Although it is considered
the gold standard20 for refugee protection, it has been criticised as nar-
row and partisan.21 In many ways, the Convention is a child of its time;

the outcome of international debates and discourses that emerged at
the end of the Second World War and in the context of the start of the
Cold War. It was negotiated primarily by the United States and its allies
and, as a result, was limited to dealing with those arriving in the West
from Soviet Bloc countries.22 The classical refugee is therefore perceived
by the Convention as an individual persecuted for her political views or
activism by a totalitarian regime. Large groups of people fleeing from
international conflicts or civil wars were not envisaged at the time that
the Convention was drafted. This limitation continues to have impor-
tant implications today for many excluded groups, including women,
especially as Western refugee receiving countries are seeking to more
restrictively control migration on humanitarian grounds.23 Furthermore,
during the negotiations and drafting of the Convention, the situations
and interests of women were largely ignored and the relevance of gender
was discussed only once with the idea of inclusion quickly rejected and
considered to be a matter for nation states to determine within domestic
legislation.24 As a result, the dominant definition of human rights and
the mechanisms to enforce them in the world today are ones that pertain
primarily to the types of violations that the men who first articulated the
concept most feared.25
Article 1A(2) of the Convention defines a refugee as a person who,
owing to a well-founded fear of persecution for reasons of race, religion,
nationality, membership of a particular social group or political opinion,
is outside his/her country of nationality and is unable or, owing to such
fear, unwilling to avail himself of the protection of that country. Acts of
persecution or feared persecution for a Convention reason must be com-
mitted by the state or by groups of individuals that the state cannot or will
19
Macklin, above n 7, 255.
20
N Steiner, Arguing about Asylum: The Complexity of Refugee Debates in Europe (St Martins Press, 2000).
21
P Marfleet, Refugees in a Global Era (Palgrave Macmillan, 2006), 146.
22
Steiner, above n 20.
23
Oswin, above n 7; Freedman, above n1.
24
Spijkerboer, above n 7,1.
25
C Bunch, Transforming Human Rights from a Feminist Perspective in J Peter and AWolper
(eds), Womens Rights, Human Rights: International Feminist Perspectives (Routledge, 1995), 13.
not control. Whilst the definition appears to make no distinction between
26
male and female refugees, it is an individualistic and limited definition

that excludes many who have fled their homes for reasons not mentioned
in the Convention.27 Even for those who might be included, the defini-
tion is vague and leaves much to the interpretation of states.28 This has
been particularly important in relation to the desire to make visible the
female refugee as there is no explicit reference to fear of persecution on
the grounds of gender, and so strategies to prevent the marginalisation of
womens activities and oppression within the existing grounds have had to

be pursued.
3. Some critiques of refugeelaw

Over the past thirty years, engagements with refugee law have focused on
whether the Convention should be amended to include gender as a specific
ground of persecution or whether the existing laws should be exploited to
develop the category of women as a particular social group. The argu-
ments have revolved around the issue of how exactly to define gender
related persecution and how to make sure that it is considered seriously
without setting up a separate category that pushes this type of persecution
into a position of exclusion from international law frameworks. In recent
years, the most pressing issues for critiques have been to consider how to
include gender related persecution without ghettoising or essentialising
womens experiences as fundamentally different from mens, and how to
resolve the tensions between theory and practice so that theoretical gains
have a real impact on the experiences of female refugees claiming asylum.29
3.1 The structural approach

Some of the earliest criticisms of international refugee law focused on
attacking the structural mechanisms of the law and sought to place the issue
of gender and refugee status firmly on the international agenda.30 Afemi-
nisation of refugee law was sought to sensitise the international mecha-
nisms to the specific needs of female refugees and to eliminate the male
bias in the law.31 Akey contention in this debate was that the experiences
of female asylum applicants were different from those of men and that
26
J Hathaway, The Law of Refugee Status (Butterworths, 1991); G Goodwin-Gill, The Refugee in
International Law (Clarendon Press, 1983); IA Macdonald & R Toal, Macdonalds Immigration Law and
Practice (8th edn, 2010), Lexis Nexis.
27
28
Interpretative assistance with Convention definitions can be found in the UNHCR Handbook
and, in Europe, in the EU Qualification Directive (Dir 2004/83/EC).
29
See, eg, Freedman, above n 1; H Crawley, Refugees and Gender: Law and Process (Jordans, 2001);
Oswin, above n7.
30
See D Indra, Gender: AKey Dimension of the Refugee Experience (1987) 7 Refuge3.
31
Freedman, above n 1; Crawley, above n 29.
refugee legal practice needed to acknowledge this.32 Critics thus argued that
refugee law did not address the specific experiences of women as the over-
all discourse, practice and research concerning refugees remains primarily
a male paradigm, even if in a superficial way it appears to be a universal
and general one.33 The challenges to existing refugee definitions focused on
the gendered construction of dichotomies and the, often taken for granted,
binary categories that arise from them. The aim of such critique was to flip
the binary34 and disrupt the dominant male categories by making womens
experiences of persecution in the private sphere visible. It was argued that

the distinctions drawn in refugee law between the public and private realms
were significant in undermining the experiences of women within the asy-
lum system due to the interaction between international refugee law and
gender based domestic laws and social structures which relegated women
and men into separate spheres of existence.35
In domestic law, theorists have long deprecated the private/public dis-
tinction, pointing out that the refusal of the state to intervene in the pri-
vate sphere of the home only insulates abuse of pre-existing patriarchal
power within the private sphere, perpetuating and justifying the patriar-
chal organisation of the public sphere.36 At the international level, the pub-
lic/private dichotomy replicates itself and, because international human
rights law only binds states, liability can only exist if states can be held
accountable for their failure to protect women. Gender oppression and
sexual violence are thus seen in traditional international law discourses as
personal and unconnected to political opinion.
Structural critiques of the Convention focused on identifying the speci-
ficity of refugee womens experiences and on the assumption that men
and women have totally different experiences of problems in their country
of origin. This assumption was challenged for two main reasons. First,
the specificity of female experience was said to be due to a different rela-
tionship to the state and the public sphere, with women living and act-
ing primarily in the private sphere.37 Secondly, the law should recognise
that women might be oppressed simply because they are women; because
they infringe, and so fail, the moral and ethical values of the society in
which they live, and fail in their functions as wife or mother, or because
they are politically active.38 Attention was thus focused on demonstrating
32
See, eg, the Australian Department of Immigration and Multicultural Affairs 1996, para 2.15;
Spijkerboer, above n7.
33
N Kelly, Gender-related persecution: assessing the asylum claims of women (1993) 26 Cornell
International Law Journal 62574, at 674.
34
Oswin, above n7.
35
H Charlesworth etal, Feminist Approaches to international law (1991) 85 American Journal of
International Law 61364.
36
37
Indra, above n 30.
38
Spijkerboer, above n 7; Freedman, above n 1; Crawley, above n 29; Oswin, above n7.
how the continuing assumption at the level of international law that there
was a public/private divide undermined the alleged gender neutrality of
refugee law and practice by creating situations in which womens experi-
ences of political activity or persecution were not seen as relevant to the
law. For example, issues such as female genital mutilation (FGM) or forced
marriage were considered to be due to cultural differences or the normal
order of things and, as such, were not considered seriously as grounds for
granting asylum.39 Additionally, forms of persecution relating to womens
private behaviour, such as refusing to conform to dress codes or to vio-

lence which takes place within the private sphere of the family, were not
recognised as grounds for granting refugee status.40 Far from a politically
neutral concept, critics such as Indra, argued that the image of the refugee
was, in fact, deeply political in that female experiences were marginalised
and private sphere activities, which are characterised as womens activities,
were denied the quality of political.41
In order to counter these assumptions, the proponents of the structural
approach had two key aims. First, that womens political activities in the
private sphere should be recognised as political and, secondly, in order to
cover the oppression of women, gender should be added as a ground of
persecution to the Convention. The key argument was that women are
different to men and therefore need to be considered differently through
the insertion into the Convention of a category of gender. This would be
largely symbolic as including such a category would underline the impor-
tance of naming what is done to women as gender persecution and not
mask it with some other label. Additionally, not naming gender persecu-
tion as such trivialised it and perpetuated the invisibility of those who suf-
fered in this way.42 However, it was quickly recognised that this approach
was not without its practical, political and theoretical difficulties as, for
example, re-opening the Convention for revision at a time when there was
escalating hostility towards refugees would be dangerous and self-defeat-
ing.43 The current global trend appears to be towards austere neo-liberal
economic policies, which have had an impact on asylum flows by both
seeking to dissuade inflows of asylum seekers and by making the task of
successfully claiming asylum even more difficult than it has previously
been.44 Furthermore, the suggestion that adding gender to the Convention
would resolve the difficulties faced by female refugees in having their situ-
ation recognised as persecution oversimplifies the situation. As Macklin
argues, if all persecution of women is framed as persecution because of
39
Indra, above n 30.
40
Spijkerboer, above n 7; Freedman, above n 1; Crawley, above n 29; Oswin, above n7.
41
Indra, above n 30.
42
Macklin, above n7.
43
J Hathaway, cited in Macklin, above n 7, 256; Hathaway, above n 26.
44
Oswin, above n 7, 354.
gender, this may exclude some of the reasons why women flee persecution
and so lead to greater exclusion for some female asylum seekers.45
3.2 The human rights approach46

Other refugee scholars have considered asylum policy and international
human rights law as inextricably linked, so that a violation of any of
the human rights listed in international human rights instruments could
constitute persecution. This human rights approach was pioneered by
Hathaway and has been embraced by many academics and activists and

endorsed by courts in many Western countries.47 The rationale behind it
is that the human rights listed in the Universal Declaration of Human
Rights48 and the International Covenants49 represent the minimum duty
owed by a state to its nationals which all states are bound to respect as
a minimum condition of legitimacy.50 Thus, when a state ignores or is
unable to respond to legitimate expectations as defined in international
human rights law then the citizens of that state should have the prospect
of legitimate disengagement from that community in favour of surrogate
protection elsewhere.51 In the light of this, Hathaway concludes that, per-
secution may be defined as the sustained or systematic violation of human
rights demonstrative of a failure of state protection.52 Courts adopting
the human rights approach have emphasised that eligibility for asylum is
limited to applicants who can show a well-founded fear of serious harm
in addition to a violation of human rights.53 Persecution therefore includes
two elements; the risk of serious harm and the failure of state protection
of human rights. As persecution is not otherwise clearly defined either in
the Convention or in documents such as the UNHCR Handbook54 which
supplements it, human rights are used to provide what is assumed to be a
universal understanding of theterm.
Greatbatch and Anker have utilised this method and sought to work
with liberal human rights discourses that, rather than just focus on gender
as a category, seek to encourage recognition of the cultural and ideological
norms and practices that contribute to the oppression of women as human
rights violations and grounds of persecution.55 Indeed, human rights based
45
46
Spijkerboer, above n 7, 165.
47
Hathaway, above n 26.
48
<http://www.un.org/en/documents/udhr/>.
49
<http://www.un.org/millennium/law/iv-4.htm>.
50
ibid, 106.
51
J Hathaway, Reconceiving Refugee Law as Human Rights Protection (1991) 4 JRS 123.
52
Hathaway, above n 26, 1045.
53
Macdonald & Toal, above n 26.
54
<http://www.unhcr.org/3d58e13b4.html>.
55
J Greatbatch, The Gender Difference: Feminist Critiques of Refugee Discourse (1989) 1 IJRL
518527; D Anker, Refugee Law, Gender and the Human Rights Paradigm (2002) 15 Harvard
Human Rights Journal 133.
approaches focus on the importance of human rights discourses in the
dominant representation of the refugee and seek to introduce analyses of
human rights which recognise the specific contexts from which women
refugees come. Additionally, Greatbatch criticised the structural approach
and suggested that, rather than seeking to introduce gender into the
Convention, it was preferable to achieve change by exploiting the internal
flexibility of the existing legal rules and concepts.56 Thus, as legal reason-
ing is flexible it can accommodate more than one dominant view of gen-
der.57 As noted in the introduction, the refugee has largely been constructed

according to the concept of a rights bearing mobile individual. While
structural critiques had importantly and critically revealed the effects of
the private/public distinction, and uncovered the dominant male power
structures at work, the resulting discourses tended to essentialise womens
experiences and failed to locate them within their cultural context. In con-
trast, human rights critiques of refugee law attempted to depoliticise the
gender issue. They argued that the problems of refugee women could be
legally resolved by focusing on developments in human rights discourses
and the legal concept of equality. Refugee womens problems stem not only
from their position as women, but also from their cultural background.58
Thus, women suffer from tradition or a lack of progress and modernity,59
and this can be resolved through focusing on emancipation, modernity
and human rights.
In order to address these problems, the types of violations suffered by
women have been exposed in order to develop a specific list of womens
flight motives. These have been incorporated into gender guidelines and
have informed the development of the Convention category of particular
social group, thereby recognising the oppression suffered by women as
specific human rights violations to be taken into consideration by decision
makers when interpreting the Convention. Within these guidelines, the
rights violations suffered by women are divided into three main areas. The
first relates to women who face persecution on the same grounds as men,
and such claims are assumed to be gender neutral and so can be dealt with
under the traditional theories of asylum law. The second area is women
who flee gender specific human rights abuses; the type of persecution that
is specific to women as women, such as sexual violence. The final group
includes women fleeing persecution on account of their gender; those
who transgress social mores or suffer sex discrimination, discrimination
within the family or abuse by non-governmental agents.60 Women in the
56
Greatbatch, ibid.
57
ibid.
58
L Cipriani, Gender and persecution: protecting women under international law (1993) 7
Georgetown Immigration Law Journal 51148.
59
Spijkerboer, above n 7, 166.
60
Kelly, above n 33; N Kelly, Guidelines for Womens Asylum Claims (1994) 6 IJRL 51734.
latter two groups face two problems when trying to fit themselves into the
Convention. First, case law seems to indicate that gender specific forms
of persecution are typically ascribed to the personal motivations of the
persecutor by those determining claims.61 Secondly, gender is not tradi-
tionally recognised in the dominant discourses as the basis for constituting
a social group.62 The source of the problem is that developments in human
rights law have not been sufficiently incorporated into refugee law prac-
tice.63 The solution, therefore, to this latter group of cases is the adoption
of a gender sensitive human rights paradigm; a reconceptualization of the

presentation of womens cases, including an examination of the political
nature of seemingly private acts and the ways in which many states fail
to accord protection to their female populations.64 Sexual violence, for
example, should be considered persecution when the country of origin
fails to provide protection and redress to victims, and this, and all other
categories of gender based persecution, can be addressed by considering
categories of women as a particular social group within the Convention
definition.
One of the main problems with this strand of analysis is that it does
not address why particular social group, rather than political opinion or
religious opinion, is the appropriate category for consideration of many
of the claims made by refugee women.65 Indeed, and as some of the
later guidelines have suggested, it might be more appropriate to frame
womens claims in terms of political opinion when women, for example,
refuse to conform to social norms.66 The preference for using the social
group category appears to be because, echoing the basis of the struc-
tural approach, womens claims are distinct from mens and so need to
be considered in a distinct category. In contrast to the structural critics,
who viewed the law as the problem, the human rights analysis argues
that the solution has to come through the law and focus on adopting
concrete rules, such as gender guidelines and the appropriate use and
development of the particular social group category. However, by con-
centrating on developing the existing liberal rights discourses and not
challenging them, the essentialism that has characterised refugee legal
discourse on the issues of gender and ethnicity is adopted; sexism [is
thus fought] with racism.67
61
Crawley, above n 29.
62
ibid.
63
Kelly, above n 33; Kelly, above n 60.
64
Kelly, above n 33, 642.
65
66
Eg, see the guidelines developed by the Refugee Womens Legal Group in the UK (1998), as
discussed in Crawley, above n 29.
67
S Razack, Domestic Violence as Gender Persecution: Policing the Borders of Nation, Race and
Gender (1995) 8 Canadian Journal of Women and the Law 72.
3.3 The current position
Attempts to add gender to the specific categories within the Convention
have not yet been successful, but the strategies employed to politicise this
issue and develop categories of persecution have led to the rights of women
refugees receiving international attention. For example, the UNHCRs
Guidelines on the Protection of Refugee Women, adopted in 1991,
acknowledge that gender based persecution exists and encourages states to
recognise it as a basis for asylum.68 Following on from this, gender guide-
lines were also adopted in some European states, as well as in Canada, the

US, and Australia.69 Although these guidelines do not alter the statutory
definition of refugee, they provide those engaged in the process of asylum
claims with a means of interpreting the existing Convention definition in a
way that recognises the interplay between gender and persecution. Thus,
they appear to integrate key feminist insights into refugee discourses.70
Having said that, the tensions between the competing aims of refugee and
gender discourses have meant that the guidelines have not created the sig-
nificant change to the law in practice that was hopedfor.
The structural and human rights based approaches to refugee law have
been criticised on various bases;71 including their reliance on stereotypes
relating to both gender and culture. With regards to the former, earlier
analyses tended to use the term gender synonymously with biological sex
as something that was innate, static and equated simply to women. In con-
trast, others have argued that when talking about gender we should be
looking at the social constructions of power relations between women and
men and the implication of those for womens (and mens) identity, status
and roles.72 To do otherwise simply replicates and reinforces the margin-
alisation of womens experiences and leads to a tendency to generalise
women asylum seekers experiences. In relation to culture, gender oppres-
sion tended to be located in the cultures of the Third World, and Western
countries were represented as emancipated. Space was thus limited within
the legal discourses for womens individual experiences and any notion of
their agency erased. Analyses of jurisprudence following the introduction
of gender guidelines at international and domestic levels have shown that
womens claims are most likely to succeed when they present themselves
as victims of dysfunctional, exceptionally patriarchal cultures, and when
the applicant is cast as the cultural other.73 One consequence of womens
oppression being reduced to cultural stereotypes is that it feeds back into
68
<http://www.unhcr.org/3d4f915e4.html>.
69
Macklin, above n 7; S Kneebone, Women within the Refugee Construct: Exclusionary
Inclusion in Policy and Practice the Australian Experience (2005) 17 IJRL 742.
70
Macklin, ibid, 217.
71
Crawley, above n 29; Oswin, above n 7; Spijkerboer, above n 7; Macklin, above n7.
72
Crawley, ibid, 7; Spijkerboer, above n7.
73
Razack, above n 67.
the previously devised private/public dichotomy and means that states are
able to dismiss suggestions that they should provide asylum on the basis
that culture is private to sovereign states and does not fall within the remit
of international human rights or refugee law.74 Furthermore, framing
womens asylum claims in this way fails to disrupt the binary notions of
refugee producing and refugee receiving states.75 In practical terms, this
dichotomy may have been maintained because refugee status is an abso-
lute concept and if refugee receiving countries cannot guarantee the safety
of those to whom they grant asylum then asylum cannot be justified.76

Nevertheless, the focus on the private realities of refugee women ignores
the ways in which the public and private spheres are interconnected and
contributes to the maintenance of the gender hierarchies and power rela-
tions that underpin many of the problems faced by women (and men) on
the domestic and international stage.77
In addition, the use of membership of a particular social group as a
persecution ground has also been criticised. The framing of any and all
persecution of women as persecution because of gender has reinforced the
image of men as the only real refugees, and has also marginalised women
by implying that only men have political or religious opinions, racial sta-
tus, etc.78 As with creating a separate category of gender, focusing on the
particular social group category creates and sustains the stereotype that
men own the categories of oppression that do not explicitly include gen-
der. This simply reinforces existing patterns of decision making and leads
to exclusionary inclusion.79 Furthermore, the use of liberal human rights
structures requires specific subjects rather than fluid ones;80 thus, develop-
ing a hierarchy of womens human rights violations that can be included
within the particular social group category has led to gender differences
being essentialised. Women have to conform to a particular cultural ste-
reotype in order to succeed in their asylum claims and there is little space
within the dominant discourses for context specific, accurate representa-
tions of refugee womens diverse experiences or agency. Whilst the intro-
duction of gender guidelines has changed the law on paper, this change
does not appear to have greatly interrupted decision making practices and,
more importantly, the traditional lens through which refugees are viewed.81
Undoubtedly engagements with refugee discourses have led to an
important debate on female refugees at the international level and to
the adoption of gender guidelines in some Western states to inform the
74
Crawley, above n 29, 11.
75
76
ibid.
77
78
Macklin, above n7.
79
Kneebone, above n 69.
80
81
Macklin, above n 7; Freedman, above n1.
decision making process. The consequences of this work can be seen in
recent national and international case law which now more widely recog-
nises some forms of persecution, such as FGM.82 However, even a cursory
examination of the jurisprudence indicates that the consideration of gen-
der related claims is still a fairly arbitrary matter. Women asylum seekers
remain constructed in specific gendered ways which may mean that their
claims are not considered seriously. This would seem to be partly because
particular social group is a legal construction in the hands of the deci-
sion maker in the refugee claim,83 and not a naturally occurring phenom-

enon. It is thus dependent on the discourses used by those representing
the female refugee and on those making a decision on her case. Both the
addition of gender and the human rights approach fail to tackle the way
in which refugee law operates in practice and, as a consequence, they do
not address the use of discretionary power. Such power is often exercised
through gendered lenses, and can reduce women to stereotypes through
reliance on binary categories to understand and represent the experiences
of the female refugee. The tendency in practice to overuse the particular
social group category, rather than to try to integrate womens gendered
experiences into the other existing categories, has had some success in indi-
vidual cases, but the danger is that it overlooks the ways in which mens and
womens experiences of persecution overlap and are multiply determined
by gender, race, class, sexuality, etc. It also ignores the ways in which the
public and private spheres are interconnected, so that the social, political
and economic structures and practices that contribute to the maintenance
of gender hierarchies have been left intact and unexplored.84
Some of these problems can be overcome by using the broad concept
of personhood, which is already recognised in other areas of law. There
are strong substantive, jurisprudential and pragmatic grounds for the use
of personhood as an overarching concept that can be read in conjunc-
tion with the term person within the refugee definition, and these will be
explored below. However, before considering such arguments, it is neces-
sary to first offer a definition of the concept of personhood in order to
provide the reader with a basic understanding from which the relevancy of
the concept can be developed and applied in relation to the female refugee.
4. Defining the concept of personhood

Personhood essentially relates to a person yet the notion as to what consti-
tutes a person is indeterminate. Personhood is a concept that can be used to
82
For a full review of the development of the case law in the UK, see B Kelly, What is a particular
social group? Areview of the development of the Refugee Convention in England (2010) 24 Journal
of Immigration, Asylum and Nationality Law 928.
83
G Clayton, Immigration and Asylum Law (OUP, 2010), 488.
84
define the attributes of a person and to distinguish between a thing and
a person. It is a concept that is not unknown within UK legal discourse.
For example, within company law there is the debate as to whether rights
accorded to natural persons should also be made available to legally con-
structed entities, such as limited companies.85 There is also a debate within
international law as to whether a state can possess personhood.86 Such anal-
ysis focuses on clarifying the benefits and burdens of according legal per-
sonality to abstract entities. The concept has been judicially explored in the
area of health care law, in cases such as Re B (Consent to Treatment: Capacity),87

Pretty v United Kingdom88 and R (on the application of T) v Calderdale MBC.89
In Re B, Ms B was a tetraplegic and wished to withdraw consent to the
artificial ventilation system that was keeping her alive. As a competent adult
it was held that her right to refuse treatment had to be respected. Dame
Butler-Sloss commented that Ms B was a very impressive witness who was
extremely well-informed about her condition and who possessed insight as
to the effect of her decision on others, in particular the nursing and clinical
staff. In Pretty v United Kingdom, Dianne Pretty was terminally ill with motor
neurone disease, over time her physical condition would deteriorate making
it impossible for her to move or communicate effectively, although her ratio-
nality and mental acuity would remain unaffected. Pretty sought a commit-
ment that her husband would not be prosecuted if he assisted her suicide. She
stated I want to have a quick death without suffering, at home surrounded
by my family so that Ican say good-bye to them.90 The House of Lords
rejected her application and the appeal to the European Court of Human
Rights was also unsuccessful. R (on the application of T) v Calderdale MBC con-
cerned the continuation of special care and education for Louise Twomey,
who would shortly cease to be a minor. Although the case concerned the
placing of Twomey in a suitable residential placement, her needs, in par-
ticular those relating to the development of a notion of herself and relations
to others, was discussed in some depth by the High Court within the frame-
work of the Children Act 1989. Part of the evidence included material relat-
ing to her conditions, in particular, PDAS, Pathological Demand Avoidance
Syndrome. The report by the child psychologist stated that children with
PDAS often have difficulty in understanding the personhood of the other
and parents are reported to doubt how important they are to their child.91
85
Generally, see M Wolff, On the nature of legal persons (1938) 54 LQR 494.
86
See J Kustermans, The state as citizen: state personhood and ideology (2011) 14 Journal of
International Relations and Development 127.
87
Re B (Consent to Treatment:Capacity) [2002] EWHC 429 (Fam); [2002] 2 All ER 449 (Fam Div).
88
(2346/02); (2002) 35 EHRR 1; [2002] All ER (D) 286; [2002] 2 FLR 45 (ECHR).
89
R (on the application of T) v Calderdale MBC [2004] EWHC 1998 (Admin); (2005) 8 CCL Rep 101;
[2005] ACD2.
90
<http://news.bbc.co.uk/1/hi/health/1983941.stm> last visited 2 Dec 2011.
91
At para1.
The courts agreed that both Diane Pretty and Ms B possessed person-
hood because they had an awareness of themselves, their conditions and
the impact of their choices on others. In contrast, Louise Twomey did
not and therefore did not possess personhood. In these cases personhood
was perceived as relating to the exercise of autonomy and the selection of
choices, acceptable and unacceptable, creating what is termed the per-
sonhood paradox.92 The paradox relates to the contradictions inherent
in exercising choice, such as balancing the need for protection against the
claim for non-intervention, or the self-regulation of choice. There is also

the facet of the circularity of what is deemed to be a rational choice in
that some choices that an adult of sound mind may wish to make may be
deemed by others to be irrational.93 As Ford argues, rationality is a frag-
ile status which, should it produce an unwelcome or unpopular choice,
may be instantly be revoked, the undesirability of the choice in question
weighing as evidence that rationality was absent in the first place.94
These cases indicate that not only is the concept of personhood unde-
veloped within the substantive law of the UK, but also that the interpreta-
tion currently adopted by the courts is restrictive and therefore would be
ineffective in the context of the female refugee. The female refugee does
ordinarily possess autonomy and capacity (although there may be occa-
sions when she does not) but more importantly these are not the facets
that she wishes the courts to address. She is not asking for her capacity to
make rational life choices to be examined. Instead, it is her self-determined
identity and the notion of difference that this identity represents in the
context of the refugee law that she wishes the court to consider. This might
indicate that the argument favouring the substantive use of the concept of
personhood in relation to the female refugee is futile. However, case law
from the European Court of Human Rights and from jurisdictions outside
the UK indicates otherwise, and it suggests that personhood is a flexible
concept able to traverse contexts and adapt its content or meaning accord-
ingly. As such, it could be of use to the female refugee.
5. Developing the substantive dimension of the concept

of personhood for the female refugee
Hirst v United Kingdom95 concerned a challenge to the European Court of
Human Rights regarding restrictions on the right to vote placed by UK
law on prisoners.96 Hirst sought to challenge this restriction by invoking
92
See M Ford, The personhood paradox and the right to life (2005) 13 Medical Law Review
80101, at 95.
93
ibid, at 96.
94
ibid.
95
[2005] ECHR 681; [2005] All ER (D) 59 (Oct).
96
Representations of the People Act 1983 s 3(1), and Representations of the Peoples Act 2000.
Article 3 of Protocol No 197 and Articles 1498 and 1099 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, as incorporated by the Human Rights Act 1998. Part of the
evidence placed before the European Court included case law from other
non-European countries, and of particular interest here is the South
African case of August and another v Electoral Commission and Others,100 where
the Constitutional Court considered the application by prisoners that they
should be able to register and vote while in prison.101 The Constitutional
Court determined that under the South African Constitution the right of

every adult to vote was set out in unqualified terms. Justice Sachs stated
that universal adult suffrage was one of the foundational values of our
entire constitutional order102 and that the vote of each and every citizen is
a badge of dignity and personhood.103 Furthermore, quite literally, it says
that everybody counts and whether rich or poor, exalted or disgraced, we
all belong to the same democratic South African nation and our identities
are intertwined in a single interactive polity.104
Like the cases of Pretty, Ms B or Calderdale, Hirst was arguing for the facil-
ity to make choices, whether to participate in the democratic process, an
option that had been purposefully removed. Levels of autonomy and the
capacity to make choices or the rationality of the choices made were not
at issue. Hirst is concerned with the denial of personhood, or the badge of
dignity, within the context of a democratic society. In this sense, Hirst is
relevant to the situation of the female refugee. The problem for the female
refugee is that her personhood is also denied, not overtly and directly as
an exercise of power by others, but it is an invisible denial; a failure of the
system of refugee law to recognise and accommodate the particularities
of her existence. Hirst demonstrates that the context in which the concept
of personhood can be deployed is not fixed but is capable of flexibility.
Personhood can be used in situations where it has been denied, such as
the realm of public law, just as readily as in situations where it is deemed
to exist but its character or nature is subject to debate, such as health care
law and company law. Furthermore, Hirst indicates that the content of the
concept of personhood is also not fixed. It can be premised on facets other
97
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret
ballot, under conditions which will ensure the free expression of the opinion of the people in the choice
of the legislature.
98
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.
99
Freedom of Expression.
100
Case CCT8/99; [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363; 2011 (7) BCLR 651 (CC);
BCLR 446 (CC) (1 Apr 1999).
101
ibid.
102
Case CCT 8/99, at para 17.
103
ibid.
104
ibid.
than those of autonomy, dignity, and rationality, and can include facets
such as identity, even legally constructed identities, for example, that of a
prisoner.
This alternative interpretation of the concept of personhood can be
found in case law in other jurisdictions, such as South Africa. For example,
in Jordan and others v State105 the appellants sought to challenge the constitu-
tionality of convictions relating to prostitution under the Sexual Offences
Act 1957. It was argued that there had been breaches of the provisions
relating to equality (section 8 of the interim constitution), human dignity

(section 10), freedom of persons (section 11), privacy (section 13)and eco-
nomic activity (section 26). Although the Constitutional Court upheld the
constitutionality of the prostitution provisions and re-instated the sentences
imposed by the Magistrates Court, the dissenting arguments presented by
ORegan and Sachs JJ are of particular interest here. The majority deci-
sion reasoned that the statutory provisions were gender neutral and not
discriminatory because there was a qualitative difference in terms of the
punishments between the conduct of the dealer and the customer. Gender
discrimination also did not exist simply because there were more female
than male prostitutes, and the stigma attached to prostitutes was not a con-
sequence of gender but by virtue of the conduct they engaged in. In con-
trast, ORegan and Sachs JJ offered a more contextual analysis based on
a substantive understanding of gender inequality; although the difference
may on its face appear to be a difference of form, it is in our view a differ-
ence of substance, that stems from and perpetuates gender stereotypes in
a manner which causes discrimination.106 They thus found that the pro-
visions amounted to unfair gender discrimination because they reflected
the differing standards applied to the sexuality of men and women, a dis-
tinction that has for years been espoused both as a matter of law and
social practice.107 The distinction is based on archetypical presuppositions
about male and female behaviour, thereby fostering gender inequality,108
and the inference is that the primary cause of the problem is not the man
who creates the demand but the women who responds to it: she is fallen,
he is at best virile, at worst weak. Such discrimination, therefore, has the
potential to impair the fundamental human dignity and the personhood
of women.109
Jordan is significant for the female refugee because, first, there is the
dichotomy of contexts faced by the judges. On the one hand, there is
the criminal law framework relating to prostitution and, on the other, the
constitutional framework relating to fundamental values such as equality,
105
Case CCT 31/01 (2002); [2003] 3 LRC 135.
106
[2003] 3 LRC 135 at 160.
107
ibid, at 161.
108
ibid.
109
ibid.
dignity, freedom and privacy. Ultimately, the majority of judges opted for
the criminal law framework highlighting the gender neutral characteristics
of the law concerned. This was chosen because the written constitution
means that South Africa possesses a system of fundamental law when
contrasted with the ordinary law system of the UK. If facets of per-
sonhood exist within the realm of constitutional law they must also exist
within the criminal law. The minority decision of ORegan and Sachs JJ
was premised on the overt identification and direct application of funda-
mental values such as equality, dignity, freedom and privacy, whilst the

majority decision was premised on the indirect existence and application of
these same values, also in the context of the law relating to prostitution.
The gender neutrality of the law is represented as an indirect expression of
these values. Had the Constitutional Court favoured the minority decision
there would have been constitutional implications for the criminal justice
system, as it would have inferred that the system, in the context of the
law of prostitution, had failed to draw upon fundamental values, thereby
casting doubt on the validity and merit of its decision making. Jordan is
significant for the female refugee because it affirms that the concept of
personhood possesses contextual diversity. Personhood traverses across
all areas of law regardless of whether it is expressed overtly or covertly,
directly or indirectly. Hirst also recognised this, although it is a decision that
relates to a system of ordinary law. Secondly, the approach adopted by
the dissenting opinions of ORegan and Sachs JJ takes into consideration
the particularities and problems of prostitution. In doing so, they demon-
strate that substantively the concept of personhood possesses flexibility in
terms of its content and meaning. For the female refugee this means that
the particularities and problems that she has encountered merit consider-
ation by a judge in a court oflaw.
This flexible nature of the concept of personhood, in both context and con-
tent, is affirmed in another South African case, that of Minister of Home Affairs
and another v Fourie and another; Lesbian and Gay Equality Project and others v Minister
for Home Affairs and others.110 Here, two females who lived together in a long-term
relationship wished to be married. They challenged the constitutionality of the
provisions of the Marriage Act, in particular section 31, which contemplated
marriage between a male and a female. The Constitutional Court of South
Africa held that there was an unjustifiable violation of their right to equal pro-
tection, and to not be discriminated against unfairly in terms of the constitu-
tion. In reaching this decision the Court constructed a notion of personhood
linked to identity.111 Sachs J stated that personhood operated at many levels
and, in terms of the notion of the family, the constitution recognised differ-
ent ways and legal conceptions of the family and what constitutes family life
110
Cases CCT 60/04 and 10/05; (2005) 20 BHRC 368.
111
Cases CCT 60/04 and 10/05; (2005) 20 BHRC 368, at 376.
should change as social practices and traditions change. Furthermore, the 112
capacity to choose to get married enhances the liberty, the autonomy and the
dignity of a couple committed for life to each other.113 Fourie is significant for
the female refugee and the substantive viability of the concept of personhood
because it relates to the area of family law, thereby affirming the contextual
diversity identified in Hirst and affirmed in Jordan. Secondly, Fourie expands
upon flexibility of the content of the concept of personhood as it is able to
accommodate changes in social practices. It is a flexibility argued by ORegan
and Sachs JJ in Jordan and in Fourie there is the addition of a spatial dimension.

For the female refugee this spatial dimension has special significance, accom-
modating differences in social values and traditions within and across cultures,
but also changes over time. It can also allow for divisions of space, such as the
public/private dichotomy that has been so problematic for the female refugee,
in particular the failure to recognise the interconnectedness of their public
and private lives, such as that of the female refugee who fails to conform to
dress codes, or who is a victim of domestic violence.114 The concept of person-
hood can thus not only accommodate breadth of context, be it medical law,
constitutional law or even refugee law, but it also possesses the potential to
accommodate depth and breadth within each context.
The context and content of the concept of personhood has been fur-
ther refined in a number of subsequent cases, including the Indian case
of Naz Foundation v Delhi and Others.115 Naz concerned the constitutionality
of section 377 of the Indian Penal Code, which criminalised [w]hoever
voluntarily has carnal intercourse against the order of nature with any
man, [or] woman. The Naz foundation was a non-governmental organ-
isation working in the field of HIV/AIDS intervention and prevention.
It argued that section 377 criminalised private, consensual same-sex con-
duct and represented a violation of Article 14 (equality before the law),
Article 15 (prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth) and Article 21 (protection of life and per-
sonal liberty) of the Constitution of the Republic of India 1950. As part
of its decision, the court defined the attributes of personhood as identity
in the context of the right to privacy, along with the notions of dignity
and autonomy. In doing this, the court drew on case law from India,116
America117 and South Africa118 along with academic articles.119 Essentially,
112
Cases CCT 60/04 and 10/05; (2005) 20 BHRC 368, at 377.
113
ibid.
114
See below.
115
[2009] 4 LRC 838.
116
District Registrar and Collector Hyderabad v Canara Bank (2005) ISCC 496.
117
Bernstein v Bester NO [1996] 4 LRC 528; Thornburgh v American College of Obstetricians and Gynaecologists
(1986) 476 US 747.
118
National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] 3 LRC 648.
119
GL Bostwick, A Taxonomy of Privacy: Repose, Sanctuary and Intimate Decision (1976) 64
California Law Review 144783.
it was acknowledged that the scope of privacy is closely related with the
notion of identity. Privacy was defined as relating to individuals and not
places, privacy embodies the moral fact that a person belongs to him-
self and not to others nor to society as a whole.120 Identity related to the
gender and sexual orientation of the person [which] are so embedded
in the individual that the individual carries this aspect of his/her identity
wherever he/she goes.121 Indeed, a person cannot leave behind his sense
of gender or sexual orientation at home122 and it is privacy which enables
a person to develop human relations without interference from the outside

community or from the state.123 Furthermore, the constitution does not
presuppose that the holder of rights is an isolated, lonely and abstract fig-
ure possessing a disembodied and socially disconnected self rather people
live in their bodies, their communities, their cultures, their places and their
times.124 Autonomy enables an individual to attain fulfilment, grow in
self-esteem, build relationships and fulfil legitimate goals.125 Ultimately,
section 337denies a persons dignity and criminalises their core identity
by virtue of their sexuality.126 In other words, it denies a gay person a
right to full personhood which is implicit in the notion of life under art 21
of the Constitution.127
Naz is significant for the female refugee because it firmly situates
the concept of personhood within the substantive realm of public law.
Constitutional fundamentals, such as privacy, autonomy and dignity, are
expressly identified as the substantive basis for the representation of the
concept of personhood as identity. Whilst Jordan allowed for particularities
of identity, and Fourie for its spatial dimension, Naz facilitates the inclusion
of values. These values of autonomy and dignity are found in Pretty, Re B
and Calderdale, but Naz indicates that these values can be in interpreted and
applied in alternative contexts. In other words, choice and rationality are
just two facets of the concept of personhood that are of particular relevance
in the context of health care law. This flexibility of content is also affirmed
in the cases of Ponoo v Attorney General128 and Sanatan Dharma Maha Sabha of
Trinidad and Tobago Inc and others v Attorney General of Trinidad and Tobago.129
Ponoo v Attorney General,130 a case from the Seychelles, concerned a peti-
tioner who was sentenced to five years imprisonment for breaking and
120
Naz Foundation v Delhi and Others [2009] 4 LRC 838, at para 47.
121
ibid.
122
ibid.
123
ibid, at para 48.
124
ibid, at para 47.
125
ibid, at para 48.
126
ibid.
127
ibid.
128
[2010] SCCC 4; [2011] 3 LRC 323.
129
(2009) 76 WIR 378; [2009] UKPC 17.
130
Above n 128.
entering a building. As it was his first conviction, Ponoo sought to challenge
the constitutionality of the Penal Code of the Seychelles, which imposed a
mandatory minimum five-year sentence for the offence. Justice Dodin pre-
sented a view of personhood that was closely linked with the notion of dig-
nity, human dignity is something that is inherently a persons God-given
inalienable right that deserves to be protected and promoted by the govern-
ment and the community.131 Furthermore, dignity is in itself enshrined as
the cornerstone of society and all social institutions, governments, states,
laws human rights and respect for persons originate in the dignity of man

or his personhood.132 Justice Dodin did not distinguish between person-
hood and dignity, and whilst he did not offer a definition of personhood
he did offer a definition of dignity. First, he references legal sources, in
particular Article 16 of the Seychelles constitution,133 which embodies the
spirit of Articles 1 and 5 of the Universal Declaration of Human Rights.
He then referred to a dictionary definition which describes dignity as
the quality of being worthy of self-respect, self-regard and self-worth.134
This perception of personhood differs from that identified in the cases of
Pretty, Re B and Calderdale. By linking personhood with dignity, facets such
as capacity and rationality are supplemented with facets relating to iden-
tity. Personhood becomes a concept incorporating consideration of how
one views oneself, ones self esteem and self value. These are facets of self
identity that the female refugee can draw upon. It is also a perception of
personhood that can be found elsewhere. Harr, for example, represents
personhood as being about how Iam to myself, how Iam to you/them/it
and how you/them/it are to me.135
Finally, the case of Sanatan Dharma Maha Sabha of Trinidad and Tobago
Inc and others v Attorney General of Trinidad and Tobago136 offers an alternative
description of the content of the concept of personhood. Sanatan concerns
a Privy Council decision relating to the constitutionality of the Trinity
Cross, which was the highest national award in Trinidad and Tobago. The
appellants represented a Hindu organisation and argued that the award
breached fundamental rights within the Constitution, in particular, the
equality provisions and the religious beliefs and observance provisions.
Hindus and Muslims, by virtue of their religious beliefs and experiences,
were unfairly encumbered in their capacity to nominate for, or be nomi-
nated for, or accept The Trinity Cross, because of its clear and overt recog-
nition and representation of Christian symbolism, theology and values. In
131
[2011] 3 LRC 323, at 334.
132
ibid.
133
Every person has the right to be treated with dignity worthy of a human being and not to be
subjected to torture, cruel, inhuman or degrading treatment.
134
Above n 131, at 333
135
R Harr, The Singular Self (Sage Publications, 1998), 69.
136
(2009) 76 WIR 378; [2009] UKPC 17.
the High Court Justice Jamadar in the High Court stated that there are five
personal characteristics of the individual: race, origin, colour, religion and
sex. All of these are immutable except for religion. These characteristics
go to the core identity of a person and describe who and what a person
is, rather than how a person acts or what a person does.137 This repre-
sents a construction of personhood and Justice Jamadar said a court was
entitled to consider granting constitutional relief where the claim is that a
person has been discriminated against by reason of a condition which is
inherent and integral to his/her identity and personhood.138 This defini-

tion of personhood is particularly interesting in the context of the female
refugee since the characteristics of the individual bear some resemblance
to the categories identified in the Refugee Convention. However, whereas
in the Convention the categories are treated as singular and exclusive, in
this decision, they are overlapping and the components of personhood are
represented as tangible not intangible, affirming the flexible nature of the
content of the concept.
All these cases indicate that there are strong substantive bases from
which to develop and apply the concept of personhood to the interna-
tional concept of refugee as found in the Refugee Convention.
6. The jurisprudential argument for the use of the concept

of personhood
In addition to the substantive basis there are also strong jurisprudential
arguments favouring the usage of the concept. These arguments relate
to how the concept is able to overcome the failings of current theoretical
arguments relating to rights discourse and multiple discrimination, such as
intersectionality.
6.1 The failings of human rights discourse

Theorists, such as Nedelsky139 and Cornell,140 are critical of how rights argu-
ments fail to accommodate gender identity. Their solution is to construct
alternative frameworks. Cornell, for example, constructs a subtle theory of
137
(2009) 76 WIR 378, at 427.
138
ibid.
139
J Nedelsky: Reconceiving Autonomy: Thoughts and Possibilities (1989) 1 Yale Journal of Law
and Feminism 736; Law, Boundaries and the Bounded Self (1990) 30 (Spring) Representations 162
89; The Practical Possibilities of Feminist Theory (19923) 87 Northwestern University Law Review
1286301; Reconceiving Rights as Relationship (19934) 1 Review of Constitutional Studies/Revue
detudes constiutionnel 126.
140
See D Cornell: The Philosophy of the Limit: Systems Theory and Feminist Legal Reform in
D Cornell, M Rosenfeld and DG Carlson (eds), Deconstruction and the Possibility of Justice (Routledge,
1992), 6891; Gender, Sex and Equivalent Rights in J Butler and JW Scott (eds), Feminists Theorize
the Political (Routledge, 1992), 28096; Beyond Accommodation: Ethical Feminism, Deconstruction and the Law
(Routledge, 1999).
equivalent rights that seeks to validate and accommodate womens expe-
riences, and draws upon a wide range of materials, including Luhman,
Derrida, Rawls, Irigaray and Lacan. The result is an intellectually strik-
ing theory that does provide an alternative theoretical basis from which
to accommodate the experiences of women, but it lacks practical appli-
cability by virtue of its jurisprudentially based methodology. Accordingly,
the abstractness and alternativeness, which makes the theory appealing to
academics, is unlikely to attract judges involved in actual decision making.
In contrast, Nedelsky offers a more pragmatic theory, rights as relation-

ship.141 Relationships, such as parents, teachers, friends, loved ones, even the
relationship between the citizen and the state, are inherent within society.
These relationships help to foster autonomy but the nature of autonomy
is that of a barrier, inhibiting intrusion by other; Nedelsky suggests that
autonomy is about self-governance and participation in the collective, giv-
ing persons a sense of their selfhood. Nedelskys theory avoids the abstract
methodological problems identified in respect of Cornell. It is also a theory
that has been successfully applied by Oswin142 in the context of female refu-
gees in Canada. However, Oswin admits that her analysis is speculative and
partial and that fundamentally the approach is metaphorical.143 More sig-
nificantly, this application of Nedelsky is by another academic and, whilst
this may indicate that the approach is more grounded when contrasted
with Cornell, there remains the issue of pragmatic attractiveness. Nedelsky
is just as unlikely to appeal to judges involved in actual decision making.
Ultimately, both Cornell and Nedelsky offer theoretical solutions that are, as
yet, unproved and untested in a practical setting and their works fall into the
human rights model criticised above. In contrast, the concept of personhood
can offer an alternative more functional and practical solution as it would
draw upon the notions of personhood identified in the cases above. Although
issues of right and wrong may not be directly addressed within these cases
they do provide a tested, practical and functional basis from which to begin
to address the rights and wrongs of the situation of the female refugee.
6.2 Multiple discrimination - intersectionality and the

position of the female refugee
The theory of intersectionality was developed by Kimberl Crenshaw in
her work on employment and black women in the US as a method for
addressing multiple discrimination.144 Crenshaw argued that dominant
141
Nedelsky, Reconceiving Rights, above n 139.
142
Oswin, above n7.
143
ibid, at 362.
144
See K Crenshaw: Demarginalizing the Intersection of Race and Sex: ABlack Feminist Critique
of Antidiscrimination Doctrine, Feminist Theory and Antiracists Politics (1989) University of Chicago
Legal Forum 13967; Mapping the Margins: Intersectionality, Identity Politics, and Violence Against
Women of Color (1991) 43 Stanford Law Review 124199.
conceptions of discrimination conditioned people to think of subordi-
nation as disadvantage occurring along a single categorical axis.145 This
approach privileged some groups but marginalised others, in particular,
black women. It was therefore necessary to identify an alternative frame-
work for the experiences of black women and her solution was the anal-
ogy of traffic at an intersection.146 Discrimination, like traffic through an
intersection, may flow in one direction, it may flow in another, but there
is always traffic coming and going in all four directions.147 If an accident
happens, it can be caused by cars travelling from any one of a number of

directions and sometimes from all of them.148 If a black woman is harmed
it is because she is in the intersection, her injury could result from sex dis-
crimination or race discrimination.149 Crenshaw further refined the notion
of intersectionality arguing that for black women there is a multitude of
oppressions, not just colonialism or patriarchy, which all link together to
make a double, a triple, a many layered blanket of oppression.150
As a theory, intersectionality has some merit in its application to the situ-
ation of the female refugee, especially as there exists legal premise for its
application. Within international law, there are numerous agreements and
declarations affirming the multiple forms of discrimination that women
experience.151 Within EU law there are a number of provisions prohibit-
ing discrimination.152 However, whilst these directives specifically call for
the recognition of multiple discrimination, none offer a definition of the
term. Amore recent directive proposed by the Commission also failed to
offer a definition,153 although the Commission did fund a cross-national
research project on intersectionality.154 In the UK intersectionality has
been raised in a number of cases. For example, Lewis v Tabard Gardens155
145
Crenshaw, Demarginalizing the Intersection of Race and Sex, ibid, 140.
146
ibid, 149.
147
ibid.
148
ibid.
149
ibid.
150
Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against
Women of Color, paper presented at the 2001 World Conference Against Racism, cited in N Yuval-
Davis, Intersectionality and Feminist Politics (2006) 13 European Journal of Womens Studies 193
209, at 196.
151
Eg, the UN Human Rights Committees General Comment 28 on Equality of Rights between
Men and Women. Also, see UN Commission on Human Rights, Resolution on the Integration of the
Human Rights of Women and the Gender Perspective, UN doc E/CN.4/2002/L.59 (16 Apr 2002);
UN Committee on the Elimination of Racial Discrimination, General Recommendation XXV,
Gender Related Dimensions of Racial Discrimination, UN doc A/55/18 (20 Mar 2000).
152
Such as art 13 of the Treaty of Rome, and two directives; Directive 2000/43 and Directive
2000/78.
153
Proposal for a Council Directive on Implementing the Principle of Equal Treatment Between
Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation at <http//:www.
equalrightstrust.org/ertdocumentbank/europa%20directive.pdf> last visited 2 Dec 2011.
154
See <http://genderace.ulb.ac.be/rapports/GENDERACE%20FINAL%20REPORT%20
sent.pdf> last visited 2 Dec 2011.
155
Lewis v Tabard Gardens TMC Ltd [2005] ET/2303327/04.
concerned performance issues, where a managers treatment of a black
female employee was found to be influenced by her sex and race. In Mackie
v G & N Car Sales,156 a woman of Indian origin was discriminated against
on grounds of sex and race when dismissed by her employer. In both of
these cases the theory was raised and successfully applied, but not in the
case of Bahl v Law Society.157 Bahl was the first women of colour to occupy
a post in the senior management of the Law Society and complained that
she had been subjected to detrimental treatment during her employment
because she was a black woman. The Employment Tribunal158 found

for Bahl but the decision was overturned at the Employment Appeal
Tribunal,159 and this decision was affirmed in the Court of Appeal.160
Whilst the Employment Tribunal was willing to recognise the intersec-
tional nature of the discrimination which Bahl claimed she had been sub-
ject to, the Employment Appeals Tribunal and the Court of Appeal were
not. The limited number of cases, along with the lack of success, par-
ticularly beyond the lower courts, indicates an unwillingness by the judi-
ciary to accept the theory of intersectionality. It is a failure that has been
argued as not being particular to that of the judiciary, but also a failure
by Parliament.161 Nonetheless, it has not been suggested that this theory
should be abandoned but rather that it should be reconfigured and clari-
fied, so that the courts can both understand and apply it.162
The application of the theory of intersectionality to the context of the
female refugee possesses advantages and disadvantages. The advantage is
that the theory avoids essentialism, that a person must be characterized by
one particular feature.163 The theory allows for diversity and the complex-
ity of identity, a facet of particular relevance to the female refugee. It is
also recognised within international law, thereby according it normative
value in the context of national law should it be desired. However, the
disadvantages of using the theory of intersectionality in the context of the
female refugee overwhelm the advantages. International law does not have
direct effect on UK national law. Whilst EU directives do have direct effect
on UK law, given the absence of definitions of multiple discrimination
or the specific mention of intersectionality, there is, again, no legal basis
for the courts to draw upon. There is also the unwillingness of the courts
156
Mackie v G & N Car Sales Ltd t/a Britannia Motor Co [2004] ET/1806128/03.
157
Bahl v Law Society [2004] IRLR 799, [2004] EWCA Civ 1070 (Bahl).
158
4 July 2001.
159
The Law Society, Robert Sayer and Jane Betts v Bahl [2003] IRLR 640.
160
Above n 157.
161
S Hannett, Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple
Discrimination (2003) 23 OJLS 6586.
162
See ISolanke, Putting Race and Gender Together: ANew Approach to Intersectionality (2009)
72 MLR 72349.
163
See T Grillo, Anti-Essentialism and Intersectionality (1995) Berkeley Womens Law Journal
1630.
to adopt and apply the theory. Given the uniqueness of the concept of
personhood in the context of the female refugee it is likely that it too may
be shunned by the higher courts. There is also a strong indication that the
asylum tribunals will also not accept the concept. Policy and politics are
never far removed in the realm of asylum tribunals, as compared with
employment tribunals, and therefore they may be less receptive to judicial
innovation.164 However, there are also stronger arguments for the courts
to favour the notion of personhood over the theory of intersectionality.
Intersectionality deals with categories, such as race, gender and class, but

does so against the wider social, economic and political framework.165 The
theory does not look to the individual, which means that there is still the
potential for essentialism. The theory of intersectionality could therefore
replicate many of the problems identified in the first part of this article,
thus making it unsuitable for the female refugee. Conversely, the concept of
personhood avoids the use of categories and the tendency to pigeonhole,
making it a more subtle, appropriate and practical concept for the female
refugee. More significantly, there are potential constitutional consequences
attached to the application of the theory in the context of the female refu-
gee, in particular, the possibility of conflict between the executive and the
judiciary. Given that intersectionality deals with categories, such as race,
gender and classin terms of social, economic and political framework,166
successful application of the theory could represent judicial scrutiny of
executive policy in the realm of asylum law, thereby raising the spectre of
constitutional conflict. Whilst this consideration was not openly acknowl-
edged in Bahl, it is argued that the fundamental constitutional principle of
the separation of powers underpinned the decisions of the Employment
Appeals Tribunal and the Court of Appeal. The decisions were funda-
mentally correct, in terms of the wider constitutional arrangements of the
UK, but flawed in terms of the protection of fundamental constitutional
values, such as justice, equality and fairness. In the absence of a written
constitution, preservation of the constitutional structure must and will
always prevail for, without the structure, the values, however strong, weak,
real or unreal are nothing. The concept of personhood avoids the possibil-
ity of such constitutional dilemmas as it will be premised on a strong body
of case law, established within a constitutional context, rather than the
norms contained within a non-constitutional theory that is unrecognised
by Parliament, such as intersectionality.
164
See R Thomas, Administrative Justice and Asylum Appeals: A Study in Tribunal Adjudication (Hart
Publishing, 2011).
165
BT Dill, SM Nettles and L Weber, What Do We Mean by Intersections (Spring
2001)Connections: Newsletter of Consortium for Research on Race, Gender and Ethnicity4.
166
ibid.
7. Pragmatic considerations and the application of the
concept of personhood to the female refugee
The discussion above indicates that there are strong substantive and jur-
isprudential grounds for the application of the concept of personhood to
the female refugee. However, there are also a number of pragmatic argu-
ments to consider in order for the concept to represent a viable premise.
7.1 The indeterminate nature of concepts

It could be argued that the concept of personhood is vague and lacks sub-
stance. It is an essentially contested concept167 with no specific or complete
definition. This abstractness may be attributable to the diverse contexts
in which the concept is found, ranging from medical law, company law,
family law, criminal law to public law, and there is also the diversity of
content, ranging from intangible notions (dignity and autonomy) to the
tangible (race, gender and origin) to the contextual (prostitution, prisoners
and marriage). There is also literature which supports this view that con-
cepts are, by nature, indeterminate.168 This would suggest that deploying
an uncertain and potentially flawed concept in the problematic area of
refugee law is foolhardy. Conversely, there is literature which argues that
this openness, indeterminacy and flexibility is not a flaw, but an inherent
feature of concepts and ultimately a source of analytical strength.169 This
approach argues that concepts are representations. They can represent the
tangible, such as a cat or a tree, or the speculative, such as a black hole, or
the intangible, such as marriage, rights, sovereignty, gravity, even person-
hood. Akey feature is that the definition or knowledge attributed to a par-
ticular concept, whatever its nature or origins, exists. It is not to be found,
presumed or proven, it exists, it is. This can be contrasted with theories
where knowledge is to be found or proved. In other words, understanding
or knowledge in terms of a concept exists a priori when contrasted with the
a posterior nature of knowledge and understandings expressed by a theory.
For example, just stating the term Siamese cat to someone will immedi-
ately conjure a representation of a Siamese cat with its distinctive feature
of blue eyes. Such is the nature of concepts.
Within law, the use of concepts is well established and their open-
textured nature is well recognised and deployed, even if it is done so
unknowingly; consider, for example, concepts such as rights, marriage,
intestacy or legitimacy. Indeed, the concept of the refugee can also be
considered to be open textured and hence the struggle to incorporate the
167
WB Gallie, Essentially Contested Concepts in M Black (ed), The Importance of Language (Prentice-
Hall, 1962).
168
See M Weitz, Theories of Concepts: AHistory of the Major Philosophical Traditions (Routledge, 1988).
169
See F Jackson, From Metaphysics to Ethics: ADefence of Conceptual Analysis (Clarendon Press, 1998).
female dimension into the debate. Similarly, the substance of the concepts
of dignity and autonomy are also essentially contested, yet this has not
inhibited their use and development within European and International
law. Rather, it is recognised that such concepts are still subject to on-going
debate and definition.170 Accordingly, analysis which is concept based can
take two forms; the search for the content of the concept and/or the appli-
cation of the concept. Pretty, Re B and Calderdale analysis was of the latter
type, the application of the concept. Inherent within these cases was some
agreed, although unproven, understanding as to the meaning attributed to

the concept of personhood. The issue before the courts was whether the
individuals concerned fulfilled or met those criteria. In respect of the female
refugee, the task is more onerous, requiring a demonstration as to merit
and applicability of the concept and the content or meaning to be attrib-
uted to it. In the light of this task the novelty and open-textured nature of
the concept of personhood may benefit the female refugee, as there is no
established premise or foundation from which to exclude or essentialise her
features or characteristics. For the female refugee, this could allow for the
inclusion of norms, values and the processes of gendered power relations;
facets which current established concepts and processes find difficult to
accommodate. Abrief contextual example of this is the female immigrant
to the UK who is also a victim of domestic violence. In this situation, there
exists two distinct legislative and policy frameworks; one relating to immi-
gration law and the other to domestic violence. Each framework constructs
and essentialises the characteristics of the persons they seek to protect. For
example, the legislative framework relating to domestic violence does not
recognise a structural division in terms of protection, such as the division
between the domain of the public and private. The law offers protection
regardless of context. Conversely, within immigration law there is a struc-
tural division between those that merit protection, refugees, and those that
merit less protection, immigrants. Even within the realm of refugee law
further structural differences can be identified, such as accepted forms
of torture and political, social and economic exclusion. Such divergent
interpretations of exclusion can result in a conflict of characteristics, in
particular that of nationality, race and violence.171 In this situation, the
courts are forced to select a primary identity and always opt for that of
immigrant. Whilst race, ethnicity and nationality may possess meaning
to the womans perception of herself, at this particular point in her life
it may not be the factor by which she wishes to define herself in rela-
tion to the rest of the world. The concept of personhood should be able
170
See, eg, D Feldman, Human Dignity as a Legal Value (1999) Public Law 622; C McCrudden,
Human dignity and judicial interpretation of human rights (2008) 19 EJIL 655724.
171
A Gill and S Kaveri, UK: Domestic Violence and Marriage Migration in S van Walsum and T
Spijkerboer (eds), Women and Immigration Law (Routledge-Cavendish, 2007), 182203.
to address such situations as it would enable the female refugee to assert
which of her characteristics matter at that time, a facet which the theo-
ries discussed above were unable to achieve. The concept also provides
the courts with a flexibility to accommodate such assertions. The case law
discussed above provides the judiciary with a legitimate substantive basis
to achieve this. For example, Hirst and Jordan allow for the inclusion of
context, Fourie the spatial dimension, Naz and Ponoo values, and Santaan the
tangible. Collectively the cases provide judges with a strong substantive
premise from which to construct a concept of personhood applicable to

that of the female refugee.
7.2 The potential for subjectivity

It is recognised that, as a consequence of the indeterminate nature of con-
cepts as a whole, it could be argued that the concept of personhood is
subjective in nature and dependent upon the view that an individual has
of their self, rather than the view of another. Pragmatically, this could
indicate that the concept has the potential to allow for the subjective views
of the female refugee to overwhelm the established and recognised case
law relating to refugees in general. It is suggested that this problem can
be countered in two ways; first, by developing criteria for personhood.
Dennett, for example, has identified six themes of personhood (rationality,
intentionality, attributes or stances towards the person, reciprocation, ver-
bal communication and consciousness) and offers a definition that deter-
mines what makes a human being human.172 Whilst some of the criteria
are applicable to the female refugee, overall the definition is not, because
of its orientation towards the metaphysical; the humanness of a human
being. This approach possesses merit in the some contexts, particularly
health care law, where questions such as whether personhood exists when
someone is in a persistent vegetative state are considered.173 This is not the
situation of the female refugee. For the female refugee, Dennets approach
represents a limitation rather than a facilitation of personhood. On the
other hand, the representations as to the variations on the concept of per-
sonhood identified in the case law can be drawn upon, thereby providing
the judiciary with an objectively determined basis for their decision mak-
ing. There is, for example, the contextual constructions offered in Hirst,
Jordan and Naz, the spatial dimension offered in Fourie and ultimately the
differences in content offered in Ponoo and Santaan. Such diversity, not just
in terms of jurisdictions but in context and content, should negate any
assertions as to the subjectivity of the concept of personhood in relation to
172
D Dennett, Conditions of Personhood in AO Rorty (ed), The Identities of Persons (University of
California Press, 1976), 17596.
173
I Kennedy, The Unmasking of Medicine (George Allen and Unwin, 1981); J Harris, The Value of Life
(Routledge, 1985).
the female refugee, once again providing practical, substantive flexibility
for the judge.
7.3 The concept of personhood is unnecessary

Finally, it could be argued that it is unnecessary to draw upon the concept
of personhood as it represents a re-iteration of the concepts of autonomy
and dignity that already exist within the international human rights sys-
tem. However, these concepts on their own have not helped the situation
of the female refugee, as explained in the first part of this article. Indeed,

such concepts are themselves gendered, as it is the very system that cre-
ated them that has failed to allow for the situation of the female refugee.
This may suggest that concepts such as dignity and autonomy should be
abandoned, but this would be impracticable and unrealistic. Instead, the
concept of personhood offers the potential to abrogate the gendered fac-
ets of dignity and autonomy by allowing the female refugee to give her
own expression to them and provides the judiciary with a supplementary
conceptual tool. Consider again Harrs definition of personhood - that
of how Iam to myself (selfhood), how Iam to you (autonomy) and how
you are to me (dignity).174 All these facets could be incorporated into the
narrative that the female refugee presents to the court. Nevertheless, the
concept of personhood could be viewed as amoral, as it fails to take into
consideration what is right or wrong. There is an absence of principles
and standards and it lacks restraints. There is some merit in this argument
but this failure to consider the difference between right and wrong is a
consequence of existing predefined notions of what represents right and
wrong. For the female refugee, the wrong that she is trying to assert is a
wrong is one that the current framework fails to recognise. If such a flaw
exists in one aspect of the legal framework, the absence of a recognition
of the wrong, the existing criteria that represents right is also flawed. The
amorality thus lies not with the concept of personhood but with the exist-
ing legal framework. Ultimately, the concept enables judges to address the
structural problems encountered by the female refugee.
8.Conclusions
[R]efugee determination is a process in which the subjects agency is sub-
ordinated to the definitional powers of others. In exercising this power to
confer the label refugee on a woman we are forced to confront categori-
sation as a political choice.175
Whilst approaches to date have raised the visibility of female asylum
seekers, they have failed to create a nuanced space in legal reasoning and
174
Harr, above n 135.
175
practice that can incorporate individual, context specific experiences of
refugee women. In common with the post-structural critics, the authors
recognise that female asylum seekers are constructed by the law. Central to
that construction to date has been distinctions between normal as against
womens cases, and the West against the Rest.176 Attempts to disrupt the
dominant male discourses have led to a position where the law has simply
incorporated a one-dimensional concept of gender and culture detrimen-
tal to female asylum applicants. However, this is not a reason not to seek
further reform. The law is not monolithic or patriarchal in itself and legal

reasoning is not conclusive.177 What is required is a way to undermine the
essentialist concepts of gender and ethnicity on which current decision
making, case law and legal doctrine rest and to add some complexity to the
way in which refugee women are constructed within the discourses.
The construction of the female applicant is inherently an unstable one.
This instability of the dominant discourse is important, as it opens up
the possibility of resistance. Rather than stressing difference and creating
closed categories, the concept of personhood could be developed in the
legal context to encourage a more complex analysis of womens asylum
claims. Personhood would not require the female asylum seeker to split off
aspects of her identity in order to succeed, but would encourage an indi-
vidual assessment of her claim across the Convention categories of race,
religion, political opinion and nationality. This should not be particularly
controversial or difficult to incorporate in practice since decision makers
in the asylum context are used to working with a variety of subjective
and objective sources to create a narrative of the individual asylum claim.
What is suggested is a reconceptualization of the law, not as an instru-
ment to produce particular results, but as a site for the articulation of ideas
in opposition to traditional decision making practices. The real issues at
stake concern the ideas about gender and ethnicity that are communicated
through legal reasoning and it is at this level that the concept of person-
hood can have value. Incorporating personhood into the law could work
with the manner in which immigration decisions are made, and allow the
refugee domain to be seen as a space of possibility and a space to reimag-
ine. The advantages of personhood outweigh the disadvantages, but the
real test will lie with the courts.
176
177
ibid.

Refugee Law, Gender and The Concept of Personhood

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Refugee Law, Gender and The Concept of Personhood

Încărcat de

Drepturi de autor:

Formate disponibile

International Journal of Refugee Law Vol. 25 No. 3 pp.

Refugee Law, Gender and the Concept of

GEORGINAFIRTH & BARBARAMAUTHE*

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

The right to asylum is a void, the concept of a refugee is a judicially undefined

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

2. The Refugee Convention

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

male and female refugees, it is an individualistic and limited definition

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

3. Some critiques of refugeelaw

3.1 The structural approach

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

3.2 The human rights approach46

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

4. Defining the concept of personhood

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

5. Developing the substantive dimension of the concept

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

6. The jurisprudential argument for the use of the concept

6.1 The failings of human rights discourse

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

6.2 Multiple discrimination - intersectionality and the

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

7.1 The indeterminate nature of concepts

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

7.2 The potential for subjectivity

7.3 The concept of personhood is unnecessary

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

Downloaded from http://ijrl.oxfordjournals.org/ at University of Birmingham on September 16, 2015

S-ar putea să vă placă și