Humanitarian Protection in International Refugee Law, Sexism and Exclusion: Case for Human Rights Assessment

The overall purpose of the 1951 Convention Relating to the Status of Refugee (Refugee Convention) and its 1967 Protocol is to protect refugees fleeing persecution and threat to life. Established in the aftermath of World War II (WW II), Article 1. A(1) of the Refugee Convention centered the meaning and criteria for refugee protection on the circumstances of the War. Thus, the status of a refugee is framed from persecution feared or suffered “on account of” race, religion, nationality, political opinion, and membership in a particular social group. More than seven decades after WW II, the scope of the definition has subsisted, despite the changing paradigm in the circumstances and responses to involuntary migration. This is not without consequences. With compelling demands in forced migration, the international community has developed different approaches towards the refugee crisis, yet with minimal solutions.\nDespite the massive outcry to address the complex challenges of refugees, hostile attitudes to protection seekers remained daunting and overly pervasive in the international arena. Humanitarian protection of refugees is one of the most crucial yet mismanaged obligations of international law. With increasing demands for humanitarian protection, many destination countries perceive refugees as symbols of conflict, economic burden, and insecurity. This results in rejection, denials, pushback, detention, and refoulement, as well as a clash between political interests and international obligations to protect. Even where host states may exercise discretion to protect, such commitment is subject to the eligibility requirements of Article 1. A(1) and subject to excludability. Because the state functions as an operational instrument for international refugee law (IRL), the limitations of IRL are replicated in domestic laws with detrimental consequences on “unCovention” refugees. Women are the most disadvantaged given that sex is excluded from the status of refugees and grounds of protection. This gives cause to interrogate the nondiscriminatory principle of the Refugee Convention and its 1967 Protocol, and conformity with the norms of international human rights law.\nThis dissertation explores sexism in IRL and the exclusion of women’s experience from the framework of humanitarian protection. It traces the problems of nexus generated from the limitations of refugee inclusion and their intersectionality with gender exclusion and the framing of laws of excludability. The analysis of state practice stresses the interconnection between law, policy, and practice. Centering on the United States jurisprudence, the study investigates the irregularities in the construction of the refugee inclusion and exclusion laws and the associated interpretative barriers that affect the application. The findings are contextualized with lessons from other jurisdictions of selected common law countries—Australia, Canada, and the United Kingdom (UK). Law and human needs are dynamic. Therefore, this study examined the effects of inflexibility and lack of diversity in a seventy-two-year Refugee Convention and the prospects of change for a sustainable inclusive refugee regime. In view of these, this study makes recommendations including re-conceptualizing the criteria of refugee eligibility that reflect human realities in contemporary society and taking cognizance of the human rights principles of IRL under the Convention Against Torture (CAT).

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