The Second Sex - A Feminist Analysis of International and Swedish Refugee Law

Abstract: This thesis is written from a feminist perspective examining female asylum-seekers in international and Swedish refugee law. The question for this thesis is whether the refugee instruments are gender-sensitive and give women and men equal access to protection. The axiom of feminism is that women are subordinate to men in society and that this relationship has to be changed. The aim of feminism is to create legal equality between men and women. There are different approaches to legal equality: equal treatment, special treatment and the newer approaches which reject the preoccupation of similarities and differences between men and women. Feminists use a feminist method which includes asking questions, the woman question. The woman question examines how the law fails to take into account the experiences and values of women and how existing legal standards and concept might disadvantage women. It is the 1951 Convention relating to the Status of Refugees and the Swedish Aliens Act which are under examination in this thesis. To be granted refugee status the asylum-seeker must fulfil five prerequisites, namely: be outside her country of origin, have a well-founded fear of persecution, establish a failure of State protection and be able to link her fear of persecution to a Convention ground. This thesis identifies three problems where legislation has failed to take into account the experiences of women. First, women's fear of persecution goes unrecognised because of the interpretation of persecution. The concept of persecution does not include all methods of persecution that women are commonly subjected to. The most common violence against women that differ from violence against men may be sexual violence. Rape has often been seen as a sexual act rather than an act of violence. Even though many human rights instruments are declaring rape as torture, decision-makers in refugee law often evaluate rape as insufficient serious harm to constitute persecution. Likewise, institutionalised discrimination against women is not viewed as severe enough to constitute persecution. Second, women face problems when establishing failure of State protection in particular when they fear persecution in the private sphere. The level of meaningful protection required is very low. Moreover, it seems like refugee-receiving States distinguish between intercultural persecution, such as domestic violence and sexual violence and persecution which is more common in certain cultures than others, putting a much higher level of protection required to the latter. Third, women face difficulties with linking their fear of persecution to a Convention ground. Political opinion has been interpreted very narrowly, excluding political activities which are less formal than that of men. Moreover, decision-makers have rejected to view gender-based persecution as persecution for reason of political opinion. Even membership of a particular social group have been interpreted narrowly and Sweden has until now denied that gender may form the base for a social group. However, Sweden has developed its definition and the provision which will be applicable from March 31, 2006, explicitly states that gender may be a ground for persecution. The conclusion of this thesis is therefore that women and men do not have equal access to protection in refugee law. Much of the problem derives from that the instruments do not enter the private sphere sufficiently.