Embodied Rights: Gender Persecution, State Sovereignty, and Refugees

Abstract

This article explores the conflict and interaction between human rights and state sovereignty in asylum cases based on gender persecution. International refugees theoretically can invoke their universal human rights to gain asylum from the oppressive or restrictive behavior of sovereign states. If however such claims are met by relativization of the content of protected rights in line with practices prevailing in different states the asylum system is undermined and individual protection diminished. In areas of gender persecution therefore state control of intimate behavior becomes legitimized. After an introductory section the essay considers modern international refugee protections in light of the post-World War II compromise between individual and state rights. The next section looks at the legacy of the cold war and the influence of foreign policy on the refugee system. This is followed by a consideration of the relevance of national sovereignty in terms of legal standards and ethical judgements. The essay continues by reviewing court decisions in which persecution was legitimated through asylum denials and discussing whether these cases represented a respect for sovereignty or a desire to restrict the numbers of refugees. During the next stage analyzed that precipitated by the Islamic threat to feminism the courts moved from denials of asylum to greater sensitivity in treatment of asylum-seekers who were expressing dissidence over gendered norms. The final discussion reviews decisions regarding the intimate types of violence over womens bodies represented by forced sterilizations in China and female genital mutilation in other settings. It is concluded that rights are instruments that facilitate political and social intervention and that the context in which rights are invoked is crucial to their potential effect.