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176 - "Gender and Human Rights in Refugee Status Determination: Between Hyperreality and Ghettoisation"
Abstract This paper interrogates the concept of progress in international refugee law, particularly as it relates to gender-based claims. It argues that contrary to mainstream depictions, the human rights paradigm has been an impediment to their successful recognition rather than the catalyst for further enfranchisement.
Since the analytical turn to human rights law, key successes in landmark gender-based persecution cases have helped to sustain an emerging narrative of growth. Orthodox texts posit these cases as the critical junctures that gesture towards the universalisation and emancipatory potential of refugee law. Departing from this reasoning, it is argued that the influence of human rights has served to ghettoise claims. The idiosyncrasies of this process flatten out and generalise individual circumstances at all stages of her claim. This deprives the asylum seeker of her autonomy and facilitates rejection far more frequently than acceptance.
While gender was a conspicuous absence as a qualifying ground in the 1951 Refugee Convention, Part I recounts the creative ways in which human rights law has helped to respond to this oversight. It examines the surpassing of distinct challenges, such as non-state actors and the public/private divide, and draws on a supporting framework of cases from common law jurisdictions alongside exultant academic commentaries. Part II illustrates the endemic theoretical flaws within the human rights paradigm and its historical development that work against gender-based claims. Part III illustrates that despite some positive outcomes, these structural deficits persist and are widespread in case law. Part IV compares and contrasts the insights from previous sections in order to suggest ways in which the current model might be more equitably reoriented.