Gender and the boundaries of international refugee law: Beyond the category of ‘gender-related asylum claims’
| Author | Christel Querton |
| DOI | 10.1177/0924051919884764 |
| Date | 01 December 2019 |
| Published date | 01 December 2019 |
| Subject Matter | Articles |
Article
Gender and the boundaries
of international refugee law:
Beyond the category
of ‘gender-related asylum claims’
Christel Querton
University of the West of England, UK
Abstract
The adoption of gender guidelines aiming to ensure consistency in gender-sensitive inter-
pretation of the UN Refugee Convention definition demonstrates a general acceptance that
gender is relevant to the question of who is a refugee. However, there is evidence that States
have failed to adequately undertake the process of gender-sensitive interpretation and imple-
ment these guidelines comprehensively. Accordingly, this article argues that the general rule of
treaty interpretation in international law enables the identification of a legal obligation of State
Parties to the Refugee Convention to take gender into account when interpreting the refugee
definition. The precise scope and nature of the duty of States to take gender into account is
identified through a dynamic approach to interpretation by reference to international human
rights norms. Overall, this article claims that the conceptualisation of a legal obligation in
international law to interpret the refugee definition in a way that takes gender into account is
inhibited by the development of a distinct category of ‘gender-related asylum claims’ within
gender and refugee law scholarship. Consequently, this article presents a challenge to the
borders implicit in the category of ‘gender-related asylum claims’ by revisiting the boundaries of
international refugee law.
Keywords
refugee law, asylum, gender, human rights, borders, categories, treaty interpretation
1. Introduction
There are growing calls in the field of international refugee law to adopt a gender-sensitive
interpretation of the refugee definition contained in the United Nations Refugee
Corresponding author:
Christel Querton, Lecturer in Law, Bristol Law School, University of the West of England, Bristol, UK.
E-mail: Christel.Querton@uwe.ac.uk
Netherlands Quarterly of Human Rights
2019, Vol. 37(4) 379–397
ªThe Author(s) 2019
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DOI: 10.1177/0924051919884764
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Convention (‘Refugee Convention’).
1
A refugee is defined in the Refugee Convention as a
person who,
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that country.
2
However, there has been no authoritative international adjudication on the source and scope of a
gender-sensitive interpretation because the jurisdiction of the International Court of Justice to
determine any dispute regarding the interpretation of the Refugee Convention has never been
invoked.
3
In practice therefore, the act of interpreting the refugee definition has been undertaken
by national administrative
4
and judicial authorities which has led to inconsistent practice. In this
context and with the aim to ensure consistency in gender-sensitive interpretation of the refugee
definition, guidelines have been issued by the United Nations High Commissioner for Refugees
(‘UNHCR’)
5
and States alike.
6
Although the adoption of gender guidelines demonstrates a general acceptance that gender is
relevant to the question of who is a refugee, there is evidence that States have failed to adequately
undertake the process of gender-sensitive interpretation.
7
The impact of failing to implement
1. Executive Committee UN High Commissioner for Refugees (‘ExCom’), General Conclusion No. 73 (XLIV) – 1993
Refugee Protection and Sexual Violence, para (d) and (j); ExCom General Conclusion on International Protection No.
77 (XLVI) – 1995, para (g); ExCom General Conclusion on International Protection No. 79 (XLVII) – 1996, para (o);
ExCom General Conclusion on International Protection No. 81 (XLVIII) – 1997, para (t); ExCom General Conclusion
on International Protection No. 87 (L) – 1999, para (n); Alice Edwards, ‘Transitioning Gender: Feminist Engagement
with International Refugee Law and Policy 1950-2010’ (2010) 29 Refugee Survey Quarterly 21; Jane Freedman,
‘Mainstreaming Gender in Refugee Protection’ (2010) 23 Cambridge Review of International Affairs 589.
2. Article 1A(2) Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954)
189 UNTS 137 (‘Refugee Convention’) (hereinafter the ‘refugee definition’).
3. Article 38 Refugee Convention; although regional courts and international human rights monitoring bodies increas-
ingly determine non-refoulement cases under their respective Treaty provisions and thus play an indirect role in the
development of international refugee law, none have the jurisdiction to interpret the Refugee Convention, see Mar´ıa-
Teresa Gil-Bazo, ‘Refugee Protection under International Human Rights Law: From Non-Refoulement to Residence
and Citizenship’ (2015) 34 Refugee Survey Quarterly 11. The Court of Justice of the European Union is the regional
Court most likely to provide direct guidance on the interpretation of the refugee definition because the definition of a
refugee in EU Law is almost identical.
4. Although the UN High Commissioner for Refugees (‘UNHCR’) conducts refugee status determination in some
countries, States have the primary responsibility to conduct refugee status determination; the UNHCR is the UN agency
whose duty it is to supervise the application of the provisions of the Refugee Convention by providing interpretative
guidance in accordance with the Statute of the Office of the UNHCR adopted by the UNGA Res 428 (V) (14 December
1950) UN Doc A/RES/428(V) in conjunction with Article 35 Refugee Convention.
5. UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution within the Context of Article
1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01, 2002)
(‘Gender Guidelines’).
6. See for example Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants
Fearing Gender-Related Persecution 1996; US Guidelines, Office of International Affairs, Immigration and Natur-
alization Service, regarding adjudicating asylum cases on the basis of gender 26 May 1996; UK Visas and Immigration,
Gender Issues in the Asylum Claim 2010.
7. Valerie L. Oosterveld, ‘The Canadian Guidelines on Gender-Related Persecution: An Evaluation’ (1996) 8 Interna-
tional Journal of Refugee Law 569, 582-583; Heaven Crawley and Trine Lester, Comparative Analysis of Gender-
Related Persecution in National Asylum Legislation and Practice in Europe (EPAU/2004/05 May 2004); Hana Cheikh
380 Netherlands Quarterly of Human Rights 37(4)
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