Embodied rights: Gender persecution, state sovereignty, and refugees

Public Culture

Volumn 9, Issue 1, 1996, Pages 3-32

  Bhabha, Jacqueline ^a  

^a NONE

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EID: 0030300214     PISSN: 08992363     EISSN: None     Source Type: Journal    
DOI: 10.1215/08992363-9-1-3     Document Type: Article

References (133)

1. Both these principles are abstractions, subject to historical evolution and renegotiation in any given context, see J. Elshtain, "Sovereign God, Sovereign State, Sovereign Self," 66 Notre Dame L.R. (1991) 1355. Nevertheless they frame the sphere of intervention of refugee law, see J. Fitzpatrick, "Flight from Asylum: Trends towards Temporary and Local Responses to Forced Migration," 35 Virginia J. Intl. L. (1995) 13, 21. Indeed it is argued that refugees are an inevitable consequence of the modern division of the globe into nation states, see A. Zolberg, A. Suhrke and S. Aguayo, Escape from Violence (Oxford University Press, 1989).
2. Both these principles are abstractions, subject to historical evolution and renegotiation in any given context, see J. Elshtain, "Sovereign God, Sovereign State, Sovereign Self," 66 Notre Dame L.R. (1991) 1355. Nevertheless they frame the sphere of intervention of refugee law, see J. Fitzpatrick, "Flight from Asylum: Trends towards Temporary and Local Responses to Forced Migration," 35 Virginia J. Intl. L. (1995) 13, 21. Indeed it is argued that refugees are an inevitable consequence of the modern division of the globe into nation states, see A. Zolberg, A. Suhrke and S. Aguayo, Escape from Violence (Oxford University Press, 1989).
3. Both these principles are abstractions, subject to historical evolution and renegotiation in any given context, see J. Elshtain, "Sovereign God, Sovereign State, Sovereign Self," 66 Notre Dame L.R. (1991) 1355. Nevertheless they frame the sphere of intervention of refugee law, see J. Fitzpatrick, "Flight from Asylum: Trends towards Temporary and Local Responses to Forced Migration," 35 Virginia J. Intl. L. (1995) 13, 21. Indeed it is argued that refugees are an inevitable consequence of the modern division of the globe into nation states, see A. Zolberg, A. Suhrke and S. Aguayo, Escape from Violence (Oxford University Press, 1989).
4. Recent estimates suggest that there are about 20 million refugees worldwide and at least the same number of people internally displaced. In a world population of 5.5 billion, this means roughly one in every 130 people have been forced into flight, see United Nations High Commissioner for Refugees, The State of the World's Refugees: The Challenge of Protection (Penguin, 1993, p. 1).
5. For descriptions of the increasingly restrictive approach to refugee admissions into Europe and North America see T. A. Aleinikoff, "State Centered Refugee Law: From Resettlement to Containment," 14 Michigan J. Intl L. (1992) 120; D. Joly et al., Refugees: Asylum in Europe? (Minority Rights Publication, 1992); J. Hathaway, "Harmonization for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration," 26 Cornell Intl L. J. (1993) 719; A. Shacknove, "From Asylum to Containment," 5 Intl J. Refugee L. (1993) 516; J. Bhabha and S. Shutter, Women's Movement: Women Under Immigration, Nationality and Refugee Law (Trentham Books, 1994, ch. 8).
6. For descriptions of the increasingly restrictive approach to refugee admissions into Europe and North America see T. A. Aleinikoff, "State Centered Refugee Law: From Resettlement to Containment," 14 Michigan J. Intl L. (1992) 120; D. Joly et al., Refugees: Asylum in Europe? (Minority Rights Publication, 1992); J. Hathaway, "Harmonization for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration," 26 Cornell Intl L. J. (1993) 719; A. Shacknove, "From Asylum to Containment," 5 Intl J. Refugee L. (1993) 516; J. Bhabha and S. Shutter, Women's Movement: Women Under Immigration, Nationality and Refugee Law (Trentham Books, 1994, ch. 8).
7. For descriptions of the increasingly restrictive approach to refugee admissions into Europe and North America see T. A. Aleinikoff, "State Centered Refugee Law: From Resettlement to Containment," 14 Michigan J. Intl L. (1992) 120; D. Joly et al., Refugees: Asylum in Europe? (Minority Rights Publication, 1992); J. Hathaway, "Harmonization for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration," 26 Cornell Intl L. J. (1993) 719; A. Shacknove, "From Asylum to Containment," 5 Intl J. Refugee L. (1993) 516; J. Bhabha and S. Shutter, Women's Movement: Women Under Immigration, Nationality and Refugee Law (Trentham Books, 1994, ch. 8).
8. For descriptions of the increasingly restrictive approach to refugee admissions into Europe and North America see T. A. Aleinikoff, "State Centered Refugee Law: From Resettlement to Containment," 14 Michigan J. Intl L. (1992) 120; D. Joly et al., Refugees: Asylum in Europe? (Minority Rights Publication, 1992); J. Hathaway, "Harmonization for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration," 26 Cornell Intl L. J. (1993) 719; A. Shacknove, "From Asylum to Containment," 5 Intl J. Refugee L. (1993) 516; J. Bhabha and S. Shutter, Women's Movement: Women Under Immigration, Nationality and Refugee Law (Trentham Books, 1994, ch. 8).
9. For descriptions of the increasingly restrictive approach to refugee admissions into Europe and North America see T. A. Aleinikoff, "State Centered Refugee Law: From Resettlement to Containment," 14 Michigan J. Intl L. (1992) 120; D. Joly et al., Refugees: Asylum in Europe? (Minority Rights Publication, 1992); J. Hathaway, "Harmonization for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration," 26 Cornell Intl L. J. (1993) 719; A. Shacknove, "From Asylum to Containment," 5 Intl J. Refugee L. (1993) 516; J. Bhabha and S. Shutter, Women's Movement: Women Under Immigration, Nationality and Refugee Law (Trentham Books, 1994, ch. 8).
10. I am grateful to Lauren Berlant and Katie Trumpener for suggestions incorporated into this part of the argument.
11. S. Huntington, "The Clash of Civilizations?" 72 Foreign Affairs (1993) 22; A. Shacknove, "From Asylum to Containment," see note 3, p. 530.
12. S. Huntington, "The Clash of Civilizations?" 72 Foreign Affairs (1993) 22; A. Shacknove, "From Asylum to Containment," see note 3, p. 530.
13. A. Shacknove, "From Asylum to Containment," see note 3, p. 531.
14. Universal Declaration of Human Rights, U.N.G.A. Res. 217 A(III) of December 10, 1948, Preamble.
15. The doctrine of internal sovereignty was qualified even before the end of the Second World War, but no important legal doctrine challenged the supremacy of the state's absolute authority within its territory.
16. D. Held, "Democracy: From City-states to a Cosmopolitan World Order?" 40 Political Studies (1992) 10, 11.
17. A 1945 State Department report estimated 20 to 30 million people uprooted during the war, see G. Loescher, Beyond Charity - International Cooperation and the Global Refugee Crisis (Oxford University Press, 1993, p. 46).
18. "No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
19. Sale v Haitian Centers Council, 113 S.Ct. 2549. For a persuasive critique of this judgement see H. H. Koh, "Reflections on Refoulement and Haitian Centers Council," 35 Harvard Intl L. J. (1994) 1.
20. J. Hathaway, The Law of Refuse Status (Butterworth, 1991, pp. 7-8). The debate over the relative importance of first and second generation rights is also addressed in terms of the opposition between human rights and human needs, or the merits of singling out some rights as fundamental within a hierarchically ordered set. See M. B. Oliviero, "Human Rights and Human Needs: Which are more fundamental?" 40 Emory Law Journal (1991) 911; T. Meron, "On a Hierarchy of International Human Rights," Am J. Intl L. (1986) 1.
21. J. Hathaway, The Law of Refuse Status (Butterworth, 1991, pp. 7-8). The debate over the relative importance of first and second generation rights is also addressed in terms of the opposition between human rights and human needs, or the merits of singling out some rights as fundamental within a hierarchically ordered set. See M. B. Oliviero, "Human Rights and Human Needs: Which are more fundamental?" 40 Emory Law Journal (1991) 911; T. Meron, "On a Hierarchy of International Human Rights," Am J. Intl L. (1986) 1.
22. J. Hathaway, The Law of Refuse Status (Butterworth, 1991, pp. 7-8). The debate over the relative importance of first and second generation rights is also addressed in terms of the opposition between human rights and human needs, or the merits of singling out some rights as fundamental within a hierarchically ordered set. See M. B. Oliviero, "Human Rights and Human Needs: Which are more fundamental?" 40 Emory Law Journal (1991) 911; T. Meron, "On a Hierarchy of International Human Rights," Am J. Intl L. (1986) 1.
23. N. L. Zucker and N. F. Zucker, "The 1980 Refugee Act: A 1990 Perspective," in Refugee Policy: Canada and the United States, edited by H. Adelman (York Lanes Press, 1991, p. 235); D. Joly et al., Refugees: Asylum in Europe, see note 3, p. 33.
24. N. L. Zucker and N. F. Zucker, "The 1980 Refugee Act: A 1990 Perspective," in Refugee Policy: Canada and the United States, edited by H. Adelman (York Lanes Press, 1991, p. 235); D. Joly et al., Refugees: Asylum in Europe, see note 3, p. 33.
25. See references in note 3.
26. "House Approves Immigration Bill after Removing Legal Immigration Restrictions," 73 Interpreter Releases (1996) 350.
27. D. Anker, "Determining Asylum Claims in the United States: An Empirical Case Study: The Implementation of Legal Norms in an Unstructured Adjudicatory Environment," 19 N.Y.U. Rev. of Law and Soc. Change (1992).
28. 1951 United Nations Convention Relating to the Status of Refugees Art. 1 A (2).
29. Various U.S. courts have produced working definitions of persecution. Some emphasize the difference in viewpoint between the persecutor and the persecuted: "Persecution occurs only when there is a difference between the persecutor's view or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate," Hernandez Ortiz v INS, 777 F.2d 509, 516 (9th Cir, 1985); others stress the division between "civilized" or "legitimate" government behavior and its opposite: "[persecution is] the infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive . . . in a manner condemned by civilized governments" (emphasis added), Schellong v INS, 805 F.2d 655 (7th Cir. 1986); or "Persecution means, in immigration law, punishment for political, religious or other reasons that our country does not recognize as legitimate" (emphasis added), Osaghae v INS, 942 F.2d 1160, 1163 (7th Cir. 1991).
30. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
31. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
32. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
33. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
34. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
35. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
36. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
37. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
38. See J. Donnelly, "Cultural Relativism and Universal Human Rights," 6 Hum. R. Q. (1984) 400 (defending the fundamental universality of human rights tempered by limited cultural variation as required); for the assertion of a need for cultural dialogue between Western and non-Western philosophies to identify appropriate equivalents to Western human rights notions see A. An-Na'im, "Towards a Cross-Cultural approach to defining International Standards of Human Rights - The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment," in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, edited by A. An-Na'im (University of Pennsylvania Press, 1992, p. 19); for a critique of notions of universality in human rights see A. Pollis and P. Schwab, "Human Rights: A Western Construct with Limited Applicability" in Human Rights, Cultural and Ideological Perspectives, edited by A. Pollis and P. Schwab (Praeger Publishers, 1979, p. 1). There is a refinement of this theory, critiquing the policies of non-Western states in relation to their own traditional notions of rights and obligations, in A. Pollis, "Cultural Relativism Revisited: Through a State Prism," 18 Hum. R. Q. (1996) 316. For a discussion of this debate within feminist discourse see N. Kim, "Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," 25 Colum. Hum. Rts. L. Rev. (1993) 49; for interesting applications of these concerns to specific situations see, with references to female genital mutilation, K. Brennan, "The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study," 7 Minn. J.L. and Inequality (1991) 367; I. Gunning, "Arrogant Perception, World-travelling and Multicultural Feminism: The Case of Female Genital Surgeries," 23 Colum. Hum. Rts. L. Rev. (1992) 189; with reference to Ugandan inheritance law, C. Harries, "Daughters of Our Peoples: International Feminism Meets Ugandan Law and Custom," 25 Colum. Hum. Rts. L Rev. (1994) 493; and in relation to China's policies towards women, S. Hom, "Female Infanticide in China: The Human Rights Specter and Thoughts towards (An)other Vision," 23 Colum. Hum. Rts. L. Rev. (1992) 249.
39. As with many other areas of international law, the duties of states in respect of the public and private vulnerabilities of women were until recently discounted in refugee law, see generally Human Rights of Women: National and International Perspectives, edited by R. J. Cook (University of Pennsylvania Press, 1994); C. Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights," 12 Hum. R.Q. (1990) 486; H. Charlesworth, C. Chinkin, S. Wright, "Feminist Approaches to International Law," 85 Am. J. Intl. L. (1991) 613. Since the 1980s, however, there has been growing attention to the particular legal problems of women asylum applicants, see N. Kelly, "Gender-related Persecution: Assessing the Asylum Claims of Women," 26 Cornell Intl L. J. (1993) 625; for a survey of gender persecution in various non-Western societies in relation to the definition of a refugee in international law see L. Cipriani, "Gender and Persecution: Protecting Women under International Refugee Law," 7 Georgetown Immigration L. J. (1993) 511; E. Love "Equality in Political Asylum Law: For a Legislative Recognition of Gender-based Persecution," 17 Harv. Women's L. J. (1994) 133.
40. As with many other areas of international law, the duties of states in respect of the public and private vulnerabilities of women were until recently discounted in refugee law, see generally Human Rights of Women: National and International Perspectives, edited by R. J. Cook (University of Pennsylvania Press, 1994); C. Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights," 12 Hum. R.Q. (1990) 486; H. Charlesworth, C. Chinkin, S. Wright, "Feminist Approaches to International Law," 85 Am. J. Intl. L. (1991) 613. Since the 1980s, however, there has been growing attention to the particular legal problems of women asylum applicants, see N. Kelly, "Gender-related Persecution: Assessing the Asylum Claims of Women," 26 Cornell Intl L. J. (1993) 625; for a survey of gender persecution in various non-Western societies in relation to the definition of a refugee in international law see L. Cipriani, "Gender and Persecution: Protecting Women under International Refugee Law," 7 Georgetown Immigration L. J. (1993) 511; E. Love "Equality in Political Asylum Law: For a Legislative Recognition of Gender-based Persecution," 17 Harv. Women's L. J. (1994) 133.
41. As with many other areas of international law, the duties of states in respect of the public and private vulnerabilities of women were until recently discounted in refugee law, see generally Human Rights of Women: National and International Perspectives, edited by R. J. Cook (University of Pennsylvania Press, 1994); C. Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights," 12 Hum. R.Q. (1990) 486; H. Charlesworth, C. Chinkin, S. Wright, "Feminist Approaches to International Law," 85 Am. J. Intl. L. (1991) 613. Since the 1980s, however, there has been growing attention to the particular legal problems of women asylum applicants, see N. Kelly, "Gender-related Persecution: Assessing the Asylum Claims of Women," 26 Cornell Intl L. J. (1993) 625; for a survey of gender persecution in various non-Western societies in relation to the definition of a refugee in international law see L. Cipriani, "Gender and Persecution: Protecting Women under International Refugee Law," 7 Georgetown Immigration L. J. (1993) 511; E. Love "Equality in Political Asylum Law: For a Legislative Recognition of Gender-based Persecution," 17 Harv. Women's L. J. (1994) 133.
42. As with many other areas of international law, the duties of states in respect of the public and private vulnerabilities of women were until recently discounted in refugee law, see generally Human Rights of Women: National and International Perspectives, edited by R. J. Cook (University of Pennsylvania Press, 1994); C. Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights," 12 Hum. R.Q. (1990) 486; H. Charlesworth, C. Chinkin, S. Wright, "Feminist Approaches to International Law," 85 Am. J. Intl. L. (1991) 613. Since the 1980s, however, there has been growing attention to the particular legal problems of women asylum applicants, see N. Kelly, "Gender-related Persecution: Assessing the Asylum Claims of Women," 26 Cornell Intl L. J. (1993) 625; for a survey of gender persecution in various non-Western societies in relation to the definition of a refugee in international law see L. Cipriani, "Gender and Persecution: Protecting Women under International Refugee Law," 7 Georgetown Immigration L. J. (1993) 511; E. Love "Equality in Political Asylum Law: For a Legislative Recognition of Gender-based Persecution," 17 Harv. Women's L. J. (1994) 133.
43. As with many other areas of international law, the duties of states in respect of the public and private vulnerabilities of women were until recently discounted in refugee law, see generally Human Rights of Women: National and International Perspectives, edited by R. J. Cook (University of Pennsylvania Press, 1994); C. Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights," 12 Hum. R.Q. (1990) 486; H. Charlesworth, C. Chinkin, S. Wright, "Feminist Approaches to International Law," 85 Am. J. Intl. L. (1991) 613. Since the 1980s, however, there has been growing attention to the particular legal problems of women asylum applicants, see N. Kelly, "Gender-related Persecution: Assessing the Asylum Claims of Women," 26 Cornell Intl L. J. (1993) 625; for a survey of gender persecution in various non-Western societies in relation to the definition of a refugee in international law see L. Cipriani, "Gender and Persecution: Protecting Women under International Refugee Law," 7 Georgetown Immigration L. J. (1993) 511; E. Love "Equality in Political Asylum Law: For a Legislative Recognition of Gender-based Persecution," 17 Harv. Women's L. J. (1994) 133.
44. As with many other areas of international law, the duties of states in respect of the public and private vulnerabilities of women were until recently discounted in refugee law, see generally Human Rights of Women: National and International Perspectives, edited by R. J. Cook (University of Pennsylvania Press, 1994); C. Bunch, "Women's Rights as Human Rights: Towards a Re-Vision of Human Rights," 12 Hum. R.Q. (1990) 486; H. Charlesworth, C. Chinkin, S. Wright, "Feminist Approaches to International Law," 85 Am. J. Intl. L. (1991) 613. Since the 1980s, however, there has been growing attention to the particular legal problems of women asylum applicants, see N. Kelly, "Gender-related Persecution: Assessing the Asylum Claims of Women," 26 Cornell Intl L. J. (1993) 625; for a survey of gender persecution in various non-Western societies in relation to the definition of a refugee in international law see L. Cipriani, "Gender and Persecution: Protecting Women under International Refugee Law," 7 Georgetown Immigration L. J. (1993) 511; E. Love "Equality in Political Asylum Law: For a Legislative Recognition of Gender-based Persecution," 17 Harv. Women's L. J. (1994) 133.
45. Some refugee advocates have suggested that the refugee definition should be amended to include gender specifically, see Cipriani, note 21, p. 513; Kelly, note 21, p. 627. In practice, in terms of access to refugee status, the definitional deficiency has not presented a problem for women fleeing persecution as traditionally conceived of, political activists, members of persecuted ethnic or religious minorities - torture and imprisonment ground the asylum claims of women refugees in these situations as effectively as they do those of their male counterparts. But women fleeing fundamental human rights violations not generally included in this traditional "political" category have found it difficult to bring themselves within the scope of international refugee protection, see J. Bhabha and S. Shutter, note 3, p. 229.
46. Some refugee advocates have suggested that the refugee definition should be amended to include gender specifically, see Cipriani, note 21, p. 513; Kelly, note 21, p. 627. In practice, in terms of access to refugee status, the definitional deficiency has not presented a problem for women fleeing persecution as traditionally conceived of, political activists, members of persecuted ethnic or religious minorities - torture and imprisonment ground the asylum claims of women refugees in these situations as effectively as they do those of their male counterparts. But women fleeing fundamental human rights violations not generally included in this traditional "political" category have found it difficult to bring themselves within the scope of international refugee protection, see J. Bhabha and S. Shutter, note 3, p. 229.
47. Some refugee advocates have suggested that the refugee definition should be amended to include gender specifically, see Cipriani, note 21, p. 513; Kelly, note 21, p. 627. In practice, in terms of access to refugee status, the definitional deficiency has not presented a problem for women fleeing persecution as traditionally conceived of, political activists, members of persecuted ethnic or religious minorities - torture and imprisonment ground the asylum claims of women refugees in these situations as effectively as they do those of their male counterparts. But women fleeing fundamental human rights violations not generally included in this traditional "political" category have found it difficult to bring themselves within the scope of international refugee protection, see J. Bhabha and S. Shutter, note 3, p. 229.
48. Gilani v Secretary of State for the Home Department, Immigration Appeal Tribunal (1987) TH/9515/85(5216), 3. The distinction between "personal" or "private" harm on the one hand and "public" oppression on the other has reproduced the dichotomy between the domestic, traditionally female sphere and the societal, male public arena. Persecution arising out of harm in the personal sphere has traditionally been held to fall outside the scope of the Refugee Convention. A classic instance of this approach is the case of Campos-Guardado v INS, 809 F.2d 285 (5th Cir. 1987), where a Salvadoran woman, raped by government vigilantes after being forced to watch her anti-government uncle and cousins being hacked to death, was denied asylum on the basis that the attackers' reprisals against her were merely "personally motivated." For a contrasting Salvadoran case, where a woman sexually abused by a sergeant in the armed forces was granted asylum on the basis of "political opinion" see Law-Majano v INS, 813 F.2d 1432 (9th Cir. 1987). See also UNHCR Catalogue Ref. CAS/DEU/95, German Federal Republic, Bayer Verwaltungsgericht Ansbach AN 17 K91. 44245 (Feb. 19, 1992) where a German court held a Romanian woman sexually abused by the mayor of her town to have a well-founded fear. Over the last few years, several jurisdictions, most notably the Canadian and more recently the U.S., have adopted a more sympathetic approach to women's asylum claims, see Immigration and Refugee Board, Women Refugee Claimants: Fearing Gender-Related Persecution, Guidelines issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act (Ottawa, Canada, March 9, 1993); N. Kelly, "Guidelines for Women's Asylum Claims," 71 Interpreter Releases (1994) 813.
49. Gilani v Secretary of State for the Home Department, Immigration Appeal Tribunal (1987) TH/9515/85(5216), 3. The distinction between "personal" or "private" harm on the one hand and "public" oppression on the other has reproduced the dichotomy between the domestic, traditionally female sphere and the societal, male public arena. Persecution arising out of harm in the personal sphere has traditionally been held to fall outside the scope of the Refugee Convention. A classic instance of this approach is the case of Campos-Guardado v INS, 809 F.2d 285 (5th Cir. 1987), where a Salvadoran woman, raped by government vigilantes after being forced to watch her anti-government uncle and cousins being hacked to death, was denied asylum on the basis that the attackers' reprisals against her were merely "personally motivated." For a contrasting Salvadoran case, where a woman sexually abused by a sergeant in the armed forces was granted asylum on the basis of "political opinion" see Law-Majano v INS, 813 F.2d 1432 (9th Cir. 1987). See also UNHCR Catalogue Ref. CAS/DEU/95, German Federal Republic, Bayer Verwaltungsgericht Ansbach AN 17 K91. 44245 (Feb. 19, 1992) where a German court held a Romanian woman sexually abused by the mayor of her town to have a well-founded fear. Over the last few years, several jurisdictions, most notably the Canadian and more recently the U.S., have adopted a more sympathetic approach to women's asylum claims, see Immigration and Refugee Board, Women Refugee Claimants: Fearing Gender-Related Persecution, Guidelines issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act (Ottawa, Canada, March 9, 1993); N. Kelly, "Guidelines for Women's Asylum Claims," 71 Interpreter Releases (1994) 813.
50. Gilani v Secretary of State for the Home Department, Immigration Appeal Tribunal (1987) TH/9515/85(5216), 3. The distinction between "personal" or "private" harm on the one hand and "public" oppression on the other has reproduced the dichotomy between the domestic, traditionally female sphere and the societal, male public arena. Persecution arising out of harm in the personal sphere has traditionally been held to fall outside the scope of the Refugee Convention. A classic instance of this approach is the case of Campos-Guardado v INS, 809 F.2d 285 (5th Cir. 1987), where a Salvadoran woman, raped by government vigilantes after being forced to watch her anti-government uncle and cousins being hacked to death, was denied asylum on the basis that the attackers' reprisals against her were merely "personally motivated." For a contrasting Salvadoran case, where a woman sexually abused by a sergeant in the armed forces was granted asylum on the basis of "political opinion" see Law-Majano v INS, 813 F.2d 1432 (9th Cir. 1987). See also UNHCR Catalogue Ref. CAS/DEU/95, German Federal Republic, Bayer Verwaltungsgericht Ansbach AN 17 K91. 44245 (Feb. 19, 1992) where a German court held a Romanian woman sexually abused by the mayor of her town to have a well-founded fear. Over the last few years, several jurisdictions, most notably the Canadian and more recently the U.S., have adopted a more sympathetic approach to women's asylum claims, see Immigration and Refugee Board, Women Refugee Claimants: Fearing Gender-Related Persecution, Guidelines issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act (Ottawa, Canada, March 9, 1993); N. Kelly, "Guidelines for Women's Asylum Claims," 71 Interpreter Releases (1994) 813.
51. Gilani v Secretary of State for the Home Department, Immigration Appeal Tribunal (1987) TH/9515/85(5216), 3. The distinction between "personal" or "private" harm on the one hand and "public" oppression on the other has reproduced the dichotomy between the domestic, traditionally female sphere and the societal, male public arena. Persecution arising out of harm in the personal sphere has traditionally been held to fall outside the scope of the Refugee Convention. A classic instance of this approach is the case of Campos-Guardado v INS, 809 F.2d 285 (5th Cir. 1987), where a Salvadoran woman, raped by government vigilantes after being forced to watch her anti-government uncle and cousins being hacked to death, was denied asylum on the basis that the attackers' reprisals against her were merely "personally motivated." For a contrasting Salvadoran case, where a woman sexually abused by a sergeant in the armed forces was granted asylum on the basis of "political opinion" see Law-Majano v INS, 813 F.2d 1432 (9th Cir. 1987). See also UNHCR Catalogue Ref. CAS/DEU/95, German Federal Republic, Bayer Verwaltungsgericht Ansbach AN 17 K91. 44245 (Feb. 19, 1992) where a German court held a Romanian woman sexually abused by the mayor of her town to have a well-founded fear. Over the last few years, several jurisdictions, most notably the Canadian and more recently the U.S., have adopted a more sympathetic approach to women's asylum claims, see Immigration and Refugee Board, Women Refugee Claimants: Fearing Gender-Related Persecution, Guidelines issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act (Ottawa, Canada, March 9, 1993); N. Kelly, "Guidelines for Women's Asylum Claims," 71 Interpreter Releases (1994) 813.
52. Widely divergent views are held by Iranian feminists about the merits of the veil; for contrasting opinions see H. Afshar, "Women and Reproduction in Iran," in Woman-Nation-State, edited by N. Yuval-Davis and F. Anthias (MacMillan, 1989, p. 110); M. Poya, "Double Exile: Iranian Women and Islamic Fundamentalism," in Refusing Holy Orders: Women and Fundamentalism in Britain, edited by G. Sahgal and N. Yuval-Davis (Virago, 1992, p. 141); L. Odeh, "Post-Colonial Feminism and the Veil: Thinking the Difference," 43 Feminist Review (1993) 26.
53. Widely divergent views are held by Iranian feminists about the merits of the veil; for contrasting opinions see H. Afshar, "Women and Reproduction in Iran," in Woman-Nation-State, edited by N. Yuval-Davis and F. Anthias (MacMillan, 1989, p. 110); M. Poya, "Double Exile: Iranian Women and Islamic Fundamentalism," in Refusing Holy Orders: Women and Fundamentalism in Britain, edited by G. Sahgal and N. Yuval-Davis (Virago, 1992, p. 141); L. Odeh, "Post-Colonial Feminism and the Veil: Thinking the Difference," 43 Feminist Review (1993) 26.
54. Widely divergent views are held by Iranian feminists about the merits of the veil; for contrasting opinions see H. Afshar, "Women and Reproduction in Iran," in Woman-Nation-State, edited by N. Yuval-Davis and F. Anthias (MacMillan, 1989, p. 110); M. Poya, "Double Exile: Iranian Women and Islamic Fundamentalism," in Refusing Holy Orders: Women and Fundamentalism in Britain, edited by G. Sahgal and N. Yuval-Davis (Virago, 1992, p. 141); L. Odeh, "Post-Colonial Feminism and the Veil: Thinking the Difference," 43 Feminist Review (1993) 26.
55. For a description of the Iranian regime's interpretation of Islamic law with respect to women see D. Neal, "Women as a Social Group: Recognizing Sex-Based Persecution as Grounds for Asylum," 20 Colum. Hum. Rts. L. Rev. (1988) 203. See also N. Entessar, "Criminal Law and the Legal System in Revolutionary Iran," 8 Boston College Third World L. J. (1988) 91. Years after the Iranian revolution there are signs of greater liberalisation in the treatment of women, see The Guardian, 28 June 1994, p. 8.
56. For a description of the Iranian regime's interpretation of Islamic law with respect to women see D. Neal, "Women as a Social Group: Recognizing Sex-Based Persecution as Grounds for Asylum," 20 Colum. Hum. Rts. L. Rev. (1988) 203. See also N. Entessar, "Criminal Law and the Legal System in Revolutionary Iran," 8 Boston College Third World L. J. (1988) 91. Years after the Iranian revolution there are signs of greater liberalisation in the treatment of women, see The Guardian, 28 June 1994, p. 8.
57. For a description of the Iranian regime's interpretation of Islamic law with respect to women see D. Neal, "Women as a Social Group: Recognizing Sex-Based Persecution as Grounds for Asylum," 20 Colum. Hum. Rts. L. Rev. (1988) 203. See also N. Entessar, "Criminal Law and the Legal System in Revolutionary Iran," 8 Boston College Third World L. J. (1988) 91. Years after the Iranian revolution there are signs of greater liberalisation in the treatment of women, see The Guardian, 28 June 1994, p. 8.
58. Gilani v Secretary of State, 12.
59. For one of many challenges to the notion that women are "reducible to our origins, skin colour, or material locations," see C. Sylvester, "African and Western Feminisms: World Traveling and the Tendencies and Possibilities," 20 Signs (1995) 941, 956.
60. Iranians were the first group of asylum seekers to the U.K. to have visas imposed on them, in 1980, in an effort to stem the refugee flow. Once asylum applicants reach the territory, however, their applications have to be considered. Following the Gilani case, another female Iranian asylum applicant challenged and successfully overturned the British government's refusal of asylum, Dina Djahanara Tadayon v Secretary of State for the Home Department, IAT Sept 25, 1987, TH/15675/86 (5379); though the evidence of persecution was similar (fright but no physical torture or imprisonment) this applicant had been a close associate of Empress Farah, the Shah's wife. Presumably the limited impact of this case on future numbers, given the facts, influenced the decision. For another similar British case which followed Gilani see Rozita Jala Pour v Secretary of State for the Home Department, IAT Feb. 9, 1988, TH/13876/86 (5619).
61. Fatin v INS, 12 F.3d 1233 (3rd Cir. 1993) 1237.
62. Before this forum Fatin's advocates defined her social group membership as consisting of "Iranian women who refuse to conform to the Government's gender-specific laws and social norms." The Court set out its understanding of the scope of this definition: "It does not include all Iranian women who hold feminist views. Nor does it include all Iranian women who find the Iranian government's "gender-specific laws and repressive social norms" objectionable or offensive. Instead it is limited to those Iranian women who find those laws so abhorrent that they "refuse to conform" - even though, according to the petitioner's brief, "the routine penalty" for noncompliance is "74 lashes, a year's imprisonment, and in many cases brutal rapes and death." Having set the stakes at this level, the court then proceeded to determine that Fatin did not fall within the social group identified because she had not proven that she would indeed refuse to conform. Her testimony had been that she "would try to avoid wearing the chador as much as she could." The court accepted that the punishments outlined would constitute persecution. But it set explicitly stated willingness to incur those punishments as the threshold for establishing a claim to refugee protection. Refugee protection, thus conceived, is a reward for heroism, martyrdom or exceptional bravery - by these standards most refugees fleeing Communist regimes would have been ineligible for asylum. It becomes an extremely scarce commodity (not an unintended consequence) signalling a degree of international abstentionism inconsistent with the founding premises of the Refugee Convention. The Fatin judgement was followed in another Iranian woman's case, Safaie v INS, 25 F.3d (8th Cir. 1994) 636.
63. From June 1983 to September 1986, INS district directors received 10,728 cases filed by Iranians seeking asylum, 7005 of which were granted. Refugee Reports (1986), Dec 12, 14.
64. Fisher v INS 61 F.3d 1366 (9th Cir. 1995) 1369.
65. Fisher v INS, see supra note 32, 1374. The case was eventually reheard by the 9th Circuit Court of Appeal en banc and the applicant's appeal against the BIA refusal of asylum was denied. A majority of the full court decided that the applicant had failed to demonstrate persecution on account of her religious or political beliefs: "The mere existence of a law permitting the detention, arrest, or even imprisonment of a woman who does not wear the chador in Iran does not constitute persecution any more than it would if the same law existed in the United States. Persecution requires the government actor to inflict suffering on account of the individual's religious or political beliefs, race, nationality or membership in a particular social group . . . . It does not include mere discrimination, as offensive as it may be." Fisher v INS (1996, 9th Cir.) Lexis 6097,16. This view is sharply criticised by dissenting judge Noonan, who characterises it thus: "It is this particular majority which has the view that if in the United States a law imposed a religiously-inspired dress code on all women under penalty of imprisonment the law would not be evidence of persecution of a particular social group. If only there is a law, if only the law is general enough, half of the population may be subjected to discrimination and subject to incarceration for disobedience to the discriminatory regulation. We are not very far from the Handmaid's Tale when seven judges of this court are capable of expressing such a view" (p. 37).
66. In the matter of A and Z [1994] A 72-190-893,A 72-793-219.
67. It is accepted that domestic violence can amount to persecution by the state in cases where the state is unwilling or unable to prevent it. See K. Bower, "Recognizing Violence Against Women as Persecution on the Basis of Membership in a Particular Social Group," 7 Georgetown Immig. L. J. (1993) 173; P. Goldberg, "Anyplace but Home: Asylum in the United States for Women Fleeing Intimate Violence," 26 Cornell Intl. L. J. (1993) 565. Canadian courts have granted asylum on this basis in numerous cases, see for example Mayers v MEI (1992) F.C.A. No.A-544-92. Both the Canadian (Canadian Women Refugee Guidelines, see note 23, p. 7) and the U.S. guidelines (INS, "Considerations for Asylum Officers Adjudicating Asylum Claims from Women" [1995] 9) recognize domestic violence as a form of persecution.
68. It is accepted that domestic violence can amount to persecution by the state in cases where the state is unwilling or unable to prevent it. See K. Bower, "Recognizing Violence Against Women as Persecution on the Basis of Membership in a Particular Social Group," 7 Georgetown Immig. L. J. (1993) 173; P. Goldberg, "Anyplace but Home: Asylum in the United States for Women Fleeing Intimate Violence," 26 Cornell Intl. L. J. (1993) 565. Canadian courts have granted asylum on this basis in numerous cases, see for example Mayers v MEI (1992) F.C.A. No.A-544-92. Both the Canadian (Canadian Women Refugee Guidelines, see note 23, p. 7) and the U.S. guidelines (INS, "Considerations for Asylum Officers Adjudicating Asylum Claims from Women" [1995] 9) recognize domestic violence as a form of persecution.
69. It is accepted that domestic violence can amount to persecution by the state in cases where the state is unwilling or unable to prevent it. See K. Bower, "Recognizing Violence Against Women as Persecution on the Basis of Membership in a Particular Social Group," 7 Georgetown Immig. L. J. (1993) 173; P. Goldberg, "Anyplace but Home: Asylum in the United States for Women Fleeing Intimate Violence," 26 Cornell Intl. L. J. (1993) 565. Canadian courts have granted asylum on this basis in numerous cases, see for example Mayers v MEI (1992) F.C.A. No.A-544-92. Both the Canadian (Canadian Women Refugee Guidelines, see note 23, p. 7) and the U.S. guidelines (INS, "Considerations for Asylum Officers Adjudicating Asylum Claims from Women" [1995] 9) recognize domestic violence as a form of persecution.
70. In the Matter of A and Z, p. 15, 16 (emphasis added). There is a clear parallel between the reasoning in this case and in the well-known case of Lazo-Majano v INS 813 F.2d (9th Cir. 1987) 1432, where a Salvadoran woman sexually abused by a sergeant in the armed forces was granted asylum on the basis of "political opinion." In both cases a woman's flight from sexual violence is taken as evidence of a feminist political opinion without such an opinion having been explicitly articulated.
71. For example, he suggests that domestic violence is defended in Jordan and prevented in the West, a manifestly false suggestion.
72. It is important to recall that the overwhelming majority of refugee decisions are dealt with purely administratively; they never come before the courts or are documented in detail as a consequence.
73. In a 1989 Dutch case, for example, an Iranian woman who had been imprisoned twice (albeit briefly) for not wearing prescribed clothing, who had demonstrated against the regime and who was dismissed from her job because of her political/religious opinions was denied refugee status on the basis that her political activities were too slight (Dutch Refugee Council, Female Asylum Seekers: A Comparative Study Concerning Policy and Jurisprudence in the Netherlands, Germany, France, the United Kingdom [1994] hereafter Dutch Report, Case 3.8,32); but some years later several women in similar situations were recognized as refugees (Dutch Report, Cases 3.12 and 3.13,35). In 1987, an Iranian woman claiming asylum in Germany on the basis of her fears of persecution by the Iranian authorities was refused asylum. According to a report of this case, the tribunal's reasoning was that women from Islamic countries are hampered in their personal development. This does not constitute treatment defying human dignity. This is not different if the woman's innermost feelings do not agree with the restrictions imposed on her" (Dutch Report, Case 4.3,51. In another 1987 case an Iranian woman refusing to comply with dress regulations was granted asylum, but she was the daughter of a well-known opponent of the regime and the decision was in part based on the dangers she faced as a relative). In subsequent years, however, the German courts have accorded refugee status to several Iranian women opposed to the regime, accepting both that their disagreement with the dress regulations and the subordinate role of women constitute a political opinion (Dutch Report, Case 4.10,55 and 4.12,56) and that as a social group they are subject to persecution by the regime (Dutch Report, Case 4.11,56). In France an Iranian woman of Armenian origin applied for asylum in 1987; she based her claim on the persecution she had been subjected to in the past and feared in the future because of her failure to observe the dress code and because of her Christian religion and Armenian origin. Her application was rejected in part because the French Refugee Board (OFPRA) did not accept that persecution arising out of noncompliance with a dress code could fall within the scope of the Refugee Convention (UNHCR, REFCAS, CAS/FRA/94 66191, 1987). But in a 1989 case, another Iranian woman of Christian Armenian background, who had been punished for not wearing the chador and refusing to convert to Islam was granted refugee status in France (Dutch Report, Case 5.8,69).
74. The first international recognition of the need to consider gender-based persecution was a European Parliament resolution in April 1984 calling for women facing persecution for violating the "social mores of the country" to be considered as falling within the "social group" ground of the 1951 Convention, Official Journal (C 127) 1984, 137. A year later UNHCR recognised the problem, but left it up to individual states to decide whether such women fell within the social group category, Report of the 36th Session of the Executive Committee of the High Commissioner's Program U.N.DOC. A/AC.96/673 (1985). In 1991 UNHCR issued Guidelines on the Protection of Refugee Women which sought to promote improved understanding of the basis for granting women's asylum claims, UNHCR, Geneva (1991). Since then both the Canadian and the U.S. authorities have issued guidelines for processing gender-based asylum claims, see notes 23 and 35.
75. The first international recognition of the need to consider gender-based persecution was a European Parliament resolution in April 1984 calling for women facing persecution for violating the "social mores of the country" to be considered as falling within the "social group" ground of the 1951 Convention, Official Journal (C 127) 1984, 137. A year later UNHCR recognised the problem, but left it up to individual states to decide whether such women fell within the social group category, Report of the 36th Session of the Executive Committee of the High Commissioner's Program U.N.DOC. A/AC.96/673 (1985). In 1991 UNHCR issued Guidelines on the Protection of Refugee Women which sought to promote improved understanding of the basis for granting women's asylum claims, UNHCR, Geneva (1991). Since then both the Canadian and the U.S. authorities have issued guidelines for processing gender-based asylum claims, see notes 23 and 35.
76. The first international recognition of the need to consider gender-based persecution was a European Parliament resolution in April 1984 calling for women facing persecution for violating the "social mores of the country" to be considered as falling within the "social group" ground of the 1951 Convention, Official Journal (C 127) 1984, 137. A year later UNHCR recognised the problem, but left it up to individual states to decide whether such women fell within the social group category, Report of the 36th Session of the Executive Committee of the High Commissioner's Program U.N.DOC. A/AC.96/673 (1985). In 1991 UNHCR issued Guidelines on the Protection of Refugee Women which sought to promote improved understanding of the basis for granting women's asylum claims, UNHCR, Geneva (1991). Since then both the Canadian and the U.S. authorities have issued guidelines for processing gender-based asylum claims, see notes 23 and 35.
77. For a description of this process see "The Red Menace Is Gone. But Here's Islam," New York Times, 21 January 1996, Section 4, p. 1. I am grateful to Carol A. Breckenridge for drawing my attention to this article.
78. One can contrast the improved attitude to refugee women fleeing oppressive Islamic norms with the increasing hostility to women seeking to maintain those norms as immigrants in the West. Several French schools have expelled Muslim girls for wearing Islamic head scarves, Migration News Sheet (1994) January, p. 11; a Swiss Chief of Police for Foreigners refused to renew residency permits of Muslim women who wore the hijab for passport photographs, defending his position thus: "The only exception is for nuns. If we had to bend over for all sorts of particularities, we would have to tolerate passport pictures with a sack covering a face," 5 Institute of Race Relations European Race Audit (October 1993) 12.
79. One can contrast the improved attitude to refugee women fleeing oppressive Islamic norms with the increasing hostility to women seeking to maintain those norms as immigrants in the West. Several French schools have expelled Muslim girls for wearing Islamic head scarves, Migration News Sheet (1994) January, p. 11; a Swiss Chief of Police for Foreigners refused to renew residency permits of Muslim women who wore the hijab for passport photographs, defending his position thus: "The only exception is for nuns. If we had to bend over for all sorts of particularities, we would have to tolerate passport pictures with a sack covering a face," 5 Institute of Race Relations European Race Audit (October 1993) 12.
80. The policy was first introduced in 1979 in Sichuan province. Inaccurately termed China's "one child policy" - there is considerable regional variation, especially in the rural and minority areas - it allegedly resulted in "a fertility drop of almost 25%" according to the minister in charge of China's state birth planning commission, see S. Greenhalgh, Zhu Chuzhu and Li Nan, "Restraining Population Growth in Three Chinese Villages, 1988-93," 20 Population and Development Review (June 1994) 365. There are however divergent views on the relationship between population growth and economic development, and on the effect of the state's policy on population growth, see Zhang Lei and Yang Xiaobing, "China's Population Policy," Beijing Review (April 13-19, 1992) 17; B, Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control and Contraceptive Choice (Harper and Row, 1987, p. 12); J. Aird, Slaughter of the Innocents (AEI Press, 1990); D. Gale Johnson, "Notes on China's Population Policy: Is It Necessary?" unpublished manuscript delivered to Workshop on East Asia, University of Chicago, April 30, 1996.
81. The policy was first introduced in 1979 in Sichuan province. Inaccurately termed China's "one child policy" - there is considerable regional variation, especially in the rural and minority areas - it allegedly resulted in "a fertility drop of almost 25%" according to the minister in charge of China's state birth planning commission, see S. Greenhalgh, Zhu Chuzhu and Li Nan, "Restraining Population Growth in Three Chinese Villages, 1988-93," 20 Population and Development Review (June 1994) 365. There are however divergent views on the relationship between population growth and economic development, and on the effect of the state's policy on population growth, see Zhang Lei and Yang Xiaobing, "China's Population Policy," Beijing Review (April 13-19, 1992) 17; B, Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control and Contraceptive Choice (Harper and Row, 1987, p. 12); J. Aird, Slaughter of the Innocents (AEI Press, 1990); D. Gale Johnson, "Notes on China's Population Policy: Is It Necessary?" unpublished manuscript delivered to Workshop on East Asia, University of Chicago, April 30, 1996.
82. The policy was first introduced in 1979 in Sichuan province. Inaccurately termed China's "one child policy" - there is considerable regional variation, especially in the rural and minority areas - it allegedly resulted in "a fertility drop of almost 25%" according to the minister in charge of China's state birth planning commission, see S. Greenhalgh, Zhu Chuzhu and Li Nan, "Restraining Population Growth in Three Chinese Villages, 1988-93," 20 Population and Development Review (June 1994) 365. There are however divergent views on the relationship between population growth and economic development, and on the effect of the state's policy on population growth, see Zhang Lei and Yang Xiaobing, "China's Population Policy," Beijing Review (April 13-19, 1992) 17; B, Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control and Contraceptive Choice (Harper and Row, 1987, p. 12); J. Aird, Slaughter of the Innocents (AEI Press, 1990); D. Gale Johnson, "Notes on China's Population Policy: Is It Necessary?" unpublished manuscript delivered to Workshop on East Asia, University of Chicago, April 30, 1996.
83. The policy was first introduced in 1979 in Sichuan province. Inaccurately termed China's "one child policy" - there is considerable regional variation, especially in the rural and minority areas - it allegedly resulted in "a fertility drop of almost 25%" according to the minister in charge of China's state birth planning commission, see S. Greenhalgh, Zhu Chuzhu and Li Nan, "Restraining Population Growth in Three Chinese Villages, 1988-93," 20 Population and Development Review (June 1994) 365. There are however divergent views on the relationship between population growth and economic development, and on the effect of the state's policy on population growth, see Zhang Lei and Yang Xiaobing, "China's Population Policy," Beijing Review (April 13-19, 1992) 17; B, Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control and Contraceptive Choice (Harper and Row, 1987, p. 12); J. Aird, Slaughter of the Innocents (AEI Press, 1990); D. Gale Johnson, "Notes on China's Population Policy: Is It Necessary?" unpublished manuscript delivered to Workshop on East Asia, University of Chicago, April 30, 1996.
84. The policy was first introduced in 1979 in Sichuan province. Inaccurately termed China's "one child policy" - there is considerable regional variation, especially in the rural and minority areas - it allegedly resulted in "a fertility drop of almost 25%" according to the minister in charge of China's state birth planning commission, see S. Greenhalgh, Zhu Chuzhu and Li Nan, "Restraining Population Growth in Three Chinese Villages, 1988-93," 20 Population and Development Review (June 1994) 365. There are however divergent views on the relationship between population growth and economic development, and on the effect of the state's policy on population growth, see Zhang Lei and Yang Xiaobing, "China's Population Policy," Beijing Review (April 13-19, 1992) 17; B, Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control and Contraceptive Choice (Harper and Row, 1987, p. 12); J. Aird, Slaughter of the Innocents (AEI Press, 1990); D. Gale Johnson, "Notes on China's Population Policy: Is It Necessary?" unpublished manuscript delivered to Workshop on East Asia, University of Chicago, April 30, 1996.
85. J. Aird, Slaughter of the Innocents, note 43, p. 1.
86. J. Aird, Slaughter of the Innocents, note 43, p. 17.
87. M. Weisskopf, "China's Birth Control Policy Drives Some to Kill Baby Girls," Washington Post, 8 January 1985, A-1, quoted in S. Hom, note 20, p. 256, note 28. According to the U.S. Department Country Report for 1984, there were 35 million female and 19 million male sterilizations in China between 1971 and 1982, quoted in S. Hom, note 20, p. 267, note 63.
88. Such practices violate the UN Declaration of Human Rights, Art. 3: "Everyone has the right to life, liberty and security of person"; Art. 5: "No-one shall be subjected to torture or to cruel, in-human or degrading treatment"; see also Skinner v Oklahoma 316 US 535, 86L.Ed. 1655, 62 S.St.1110 (1942) establishing that the right to bear children is "one of the basic civil rights of man" and that involuntary sterilization constitutes an egregious infringement of that fundamental right to procreate.
89. Cheung v Canada (Minister of Employment and Immigration) Federal Court of Appeals, 102 D.L.R. (1993) 4th 214.
90. Though different in many respects, Chinese methods for penalising women whose reproductive choices are at odds with state policy have some points in common with recent U.S. policies attacking the rights and entitlements of "welfare mothers" to choose the number of children, see New York Times, 19 March 1995, A-1.
91. The Court also upheld the claim to refugee status of the daughter; the severe discriminatory treatment that she faced and would encounter if returned "as a black market person" amounted to persecution, Cheung v Canada, note 48.
92. This concept is developed in C. Sunstein, "Incommensurability and Valuation in Law," 92 Michigan L. R. (1994) 779.
93. A later Canadian decision reached the opposite conclusion, ruling that violations of basic human rights resulting from implementation of legitimate state laws did not amount to persecution, Chan v Canada (1993) 3 F. C. 675. For an interesting discussion of the relationship between population policies and human rights see R. Boland, "Civil and Political Rights and the Right to Nondiscrimination: Population Policies, Human Rights, and Legal Change," 44 Amer. U. L. Rev. (1995) 1257.
94. Matter of G, BIA Interim Decision 3215, No. A-72761974 (1993) December 8.
95. U.S. law provides two separate procedures for refugees seeking to resist exclusion from the territory, asylum and withholding of deportation. For a description and explanation of the differences see A. Aleinikoff, D. Martin and H. Motomura, Immigration Process and Policy (West Publishers, 1995, p. 770).
96. The case contains a graphic description of the final stage in the multimillion dollar Golden Venture smuggling operation, and the tragic denouement for the passengers, many of whom had paid fees of over $20,000 or agreed to be indentured servants in the U.S. in exchange for the passage.
97. BIA Interim Decision 3107 (1989) May 12.
98. See notes 23 and 33 above.
99. Chai v Carroll (4th Cir. 1995) Lexis 4338.
100. Zheng v INS 44 F. 3d 379; (5th Cir. 1995) Lexis 2899.
101. Shon Oi Lan v Waters 869 F.Supp. 1483 (US Distr. 1994) Lexis 16474.
102. Chang failed to mention opposition to the PRC's population policies in his initial asylum petition; instead he based his application on his anti-Communist views, indicating that neither he nor his family had been mistreated. His first references to opposition to the population policies were made at his deportation hearing, by which time his credibility was undermined.
103. For a concise summary see C. Gordon, S. Mailman and S. Yale-Loehr, Immigration Law and Procedure (Bender, 1996, rev. ed., pp. 33-39).
104. Guo Chun Di v Carroll, 842 F.Supp. 858 (US Distr. 1994) Lexis 394.
105. Xin-Chang v Slattery 859 F.Supp. 708, 711-13 (S.D.N.Y.); Zhang v Slattery No. 94 Civ. 2119 (S.D.N.Y. 1994); Guo 842 F.Supp. 865-70.
106. Guo Chun Di v Carroll, note 62, p. 42.
107. The self-righteous tone of much Western criticism of female genital mutilation (FGM) has provoked critical responses, such as the following comment of the Egpytian Minister of Health, in a letter to an American anti-FGM activist: "Let me assure you Mr. Boehmer, we positively comprehend and totally share your profound repudiable [sic] attitude vis-a-vis this deeply rooted "Mal" practice. . . . Lastly but not least, you must agree with me Mr. Boehmer, that anywhere in this world deeply rooted customs specifically of harmful pattern on human beings, didn't and perhaps couldn't be easily and promptly eradicated as we might figure it out. Even in the United States, let me respectfully remind you, still exists traditions of the different sects like Mormons, the Amish, and specifically those refusing the life-saving act of blood transfusion, and we hardly heard them in such crucial humanitarians [sic] conditions obeying up to this moment to banning decrees, if ever present." Letter from Dr. Ali Abdel Fattah to Mr. Boehmer, June 12, 1995, reproduced in "Equality Now," Egypt: Government Efforts to Medicalize Female Genital Mutilation (1995) Update 8.2.
108. I. Gunning, note 20, p. 193. For descriptions of the different types of female genital mutilation performed, their incidence and consequences see F. Hosken, "Female Genital Mutilation in the World Today: A Global Review," 11 Intl J. Health Service (1981) 45; E. Dorkenoo and S. Elsworthy, Female Genital Mutilation: Proposals for Change (Minority Rights Press, 1992); O. Koso-Thomas, The Circumcision of Women: A Strategy for Eradication (Zed Books, 1992).
109. I. Gunning, note 20, p. 193. For descriptions of the different types of female genital mutilation performed, their incidence and consequences see F. Hosken, "Female Genital Mutilation in the World Today: A Global Review," 11 Intl J. Health Service (1981) 45; E. Dorkenoo and S. Elsworthy, Female Genital Mutilation: Proposals for Change (Minority Rights Press, 1992); O. Koso-Thomas, The Circumcision of Women: A Strategy for Eradication (Zed Books, 1992).
110. I. Gunning, note 20, p. 193. For descriptions of the different types of female genital mutilation performed, their incidence and consequences see F. Hosken, "Female Genital Mutilation in the World Today: A Global Review," 11 Intl J. Health Service (1981) 45; E. Dorkenoo and S. Elsworthy, Female Genital Mutilation: Proposals for Change (Minority Rights Press, 1992); O. Koso-Thomas, The Circumcision of Women: A Strategy for Eradication (Zed Books, 1992).
111. I. Gunning, note 20, p. 193. For descriptions of the different types of female genital mutilation performed, their incidence and consequences see F. Hosken, "Female Genital Mutilation in the World Today: A Global Review," 11 Intl J. Health Service (1981) 45; E. Dorkenoo and S. Elsworthy, Female Genital Mutilation: Proposals for Change (Minority Rights Press, 1992); O. Koso-Thomas, The Circumcision of Women: A Strategy for Eradication (Zed Books, 1992).
112. In fact the first examination of FGM by a UN body took place in 1952, when the Commission on Human Rights addressed the issue. Since then the Commission has explicitly criticised the practices as not only dangerous but a serious attack on the dignity of women, Commission on Human Rights, Report on the Second United Nations Regional Seminar on Traditional Practices Affecting the Health of Women and Children (1994) E/CN.4/Sub.2/1994/10,42; the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities has resolved that the practice constitutes a human rights violation, U.N. Doc. E/CN.4/Sub.2/1988/45; whereas the Working Group in Traditional Practices Affecting the Health of Women and Children established by the Sub-Commission adopted a more cautious approach, weighing the cultural significance of the practices against their harmful health consequences, and concluding that the traditional justifications for the practices were being eroded over time, see UN Doc. E/CN.4/1986/42 and K. Brennan, note 20, p. 390. For a useful analysis of the debate over FGM in feminist and judicial circles see B. Winter, "Women, the Law and Cultural Relativism in France: The Case of Excisions," 19 Signs (1994) 939.
113. In fact the first examination of FGM by a UN body took place in 1952, when the Commission on Human Rights addressed the issue. Since then the Commission has explicitly criticised the practices as not only dangerous but a serious attack on the dignity of women, Commission on Human Rights, Report on the Second United Nations Regional Seminar on Traditional Practices Affecting the Health of Women and Children (1994) E/CN.4/Sub.2/1994/10,42; the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities has resolved that the practice constitutes a human rights violation, U.N. Doc. E/CN.4/Sub.2/1988/45; whereas the Working Group in Traditional Practices Affecting the Health of Women and Children established by the Sub-Commission adopted a more cautious approach, weighing the cultural significance of the practices against their harmful health consequences, and concluding that the traditional justifications for the practices were being eroded over time, see UN Doc. E/CN.4/1986/42 and K. Brennan, note 20, p. 390. For a useful analysis of the debate over FGM in feminist and judicial circles see B. Winter, "Women, the Law and Cultural Relativism in France: The Case of Excisions," 19 Signs (1994) 939.
114. In fact the first examination of FGM by a UN body took place in 1952, when the Commission on Human Rights addressed the issue. Since then the Commission has explicitly criticised the practices as not only dangerous but a serious attack on the dignity of women, Commission on Human Rights, Report on the Second United Nations Regional Seminar on Traditional Practices Affecting the Health of Women and Children (1994) E/CN.4/Sub.2/1994/10,42; the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities has resolved that the practice constitutes a human rights violation, U.N. Doc. E/CN.4/Sub.2/1988/45; whereas the Working Group in Traditional Practices Affecting the Health of Women and Children established by the Sub-Commission adopted a more cautious approach, weighing the cultural significance of the practices against their harmful health consequences, and concluding that the traditional justifications for the practices were being eroded over time, see UN Doc. E/CN.4/1986/42 and K. Brennan, note 20, p. 390. For a useful analysis of the debate over FGM in feminist and judicial circles see B. Winter, "Women, the Law and Cultural Relativism in France: The Case of Excisions," 19 Signs (1994) 939.
115. While few African countries (notably Sudan and Egypt) have passed legislation prohibiting or limiting FGM, see Brennan, note 20, p. 375, several Western states have criminalized the practice, either by passing specific anti-FGM legislation (these include Switzerland, Sweden, the U.K. and, if current legislative proposals are enacted, the U.S.) or by invoking existing criminal laws against bodily mutilation (France and Canada).
116. Estimates of the numbers of women and girls subjected to FGM range from 80 million to over 114 million, see B. Ras-Work, "Traditional Practices that Inflict Disability," in Women and Disability, edited by Boylan (1991), p. 23; Commission on Human Rights, Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, Its Causes and Consequences, E/CN4/ 1995/42, Para 146.
117. Estimates of the numbers of women and girls subjected to FGM range from 80 million to over 114 million, see B. Ras-Work, "Traditional Practices that Inflict Disability," in Women and Disability, edited by Boylan (1991), p. 23; Commission on Human Rights, Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, Its Causes and Consequences, E/CN4/ 1995/42, Para 146.
118. Both customs were also traditionally performed by women on their daughters in order to improve or guarantee their social prospects; footbinding has been eradicated as a result of the mass mobilization of Chinese women; for an account of the activism of prominent feminists as well as over a million and a half rural women in leagues to fight for the abolition of footbinding in China in the late nineteenth and early twentieth centuries see D. Davin, Woman-Work: Women and the Party in Revolutionary China (Clarendon Press, 1976, pp. 11-15); E. Croll, Feminism and Socialism in China (Routledge, 1978, pp. 18-20). Sati or widow immolation, while much less prevalent than formerly, still occurs in India; the recent case of the sati of a teenage widow sparked off a furious debate over the proper relationship between modern, secular and traditional, religious society; for opposing points of view see A. Nandy, "The Human Factor," The Illustrated Weekly of India, 17 January 1988, p. 20 (arguing that sati represents a valid if darker side of traditional and now threatened Indian culture); contrast with P. Philipose and T. Setalvad, "Demystifying Sati," The Illustrated Weekly of India, 13 March 1988, p. 40; K. Sangari, "Perpetuating the Myth," 342 Seminar (1988) 24 (criticizing the nativist anti-colonialism of the defenders of sati). I am grateful to Tejaswini Niranjana for these references.
119. Both customs were also traditionally performed by women on their daughters in order to improve or guarantee their social prospects; footbinding has been eradicated as a result of the mass mobilization of Chinese women; for an account of the activism of prominent feminists as well as over a million and a half rural women in leagues to fight for the abolition of footbinding in China in the late nineteenth and early twentieth centuries see D. Davin, Woman-Work: Women and the Party in Revolutionary China (Clarendon Press, 1976, pp. 11-15); E. Croll, Feminism and Socialism in China (Routledge, 1978, pp. 18-20). Sati or widow immolation, while much less prevalent than formerly, still occurs in India; the recent case of the sati of a teenage widow sparked off a furious debate over the proper relationship between modern, secular and traditional, religious society; for opposing points of view see A. Nandy, "The Human Factor," The Illustrated Weekly of India, 17 January 1988, p. 20 (arguing that sati represents a valid if darker side of traditional and now threatened Indian culture); contrast with P. Philipose and T. Setalvad, "Demystifying Sati," The Illustrated Weekly of India, 13 March 1988, p. 40; K. Sangari, "Perpetuating the Myth," 342 Seminar (1988) 24 (criticizing the nativist anti-colonialism of the defenders of sati). I am grateful to Tejaswini Niranjana for these references.
120. Both customs were also traditionally performed by women on their daughters in order to improve or guarantee their social prospects; footbinding has been eradicated as a result of the mass mobilization of Chinese women; for an account of the activism of prominent feminists as well as over a million and a half rural women in leagues to fight for the abolition of footbinding in China in the late nineteenth and early twentieth centuries see D. Davin, Woman-Work: Women and the Party in Revolutionary China (Clarendon Press, 1976, pp. 11-15); E. Croll, Feminism and Socialism in China (Routledge, 1978, pp. 18-20). Sati or widow immolation, while much less prevalent than formerly, still occurs in India; the recent case of the sati of a teenage widow sparked off a furious debate over the proper relationship between modern, secular and traditional, religious society; for opposing points of view see A. Nandy, "The Human Factor," The Illustrated Weekly of India, 17 January 1988, p. 20 (arguing that sati represents a valid if darker side of traditional and now threatened Indian culture); contrast with P. Philipose and T. Setalvad, "Demystifying Sati," The Illustrated Weekly of India, 13 March 1988, p. 40; K. Sangari, "Perpetuating the Myth," 342 Seminar (1988) 24 (criticizing the nativist anti-colonialism of the defenders of sati). I am grateful to Tejaswini Niranjana for these references.
121. Both customs were also traditionally performed by women on their daughters in order to improve or guarantee their social prospects; footbinding has been eradicated as a result of the mass mobilization of Chinese women; for an account of the activism of prominent feminists as well as over a million and a half rural women in leagues to fight for the abolition of footbinding in China in the late nineteenth and early twentieth centuries see D. Davin, Woman-Work: Women and the Party in Revolutionary China (Clarendon Press, 1976, pp. 11-15); E. Croll, Feminism and Socialism in China (Routledge, 1978, pp. 18-20). Sati or widow immolation, while much less prevalent than formerly, still occurs in India; the recent case of the sati of a teenage widow sparked off a furious debate over the proper relationship between modern, secular and traditional, religious society; for opposing points of view see A. Nandy, "The Human Factor," The Illustrated Weekly of India, 17 January 1988, p. 20 (arguing that sati represents a valid if darker side of traditional and now threatened Indian culture); contrast with P. Philipose and T. Setalvad, "Demystifying Sati," The Illustrated Weekly of India, 13 March 1988, p. 40; K. Sangari, "Perpetuating the Myth," 342 Seminar (1988) 24 (criticizing the nativist anti-colonialism of the defenders of sati). I am grateful to Tejaswini Niranjana for these references.
122. Both customs were also traditionally performed by women on their daughters in order to improve or guarantee their social prospects; footbinding has been eradicated as a result of the mass mobilization of Chinese women; for an account of the activism of prominent feminists as well as over a million and a half rural women in leagues to fight for the abolition of footbinding in China in the late nineteenth and early twentieth centuries see D. Davin, Woman-Work: Women and the Party in Revolutionary China (Clarendon Press, 1976, pp. 11-15); E. Croll, Feminism and Socialism in China (Routledge, 1978, pp. 18-20). Sati or widow immolation, while much less prevalent than formerly, still occurs in India; the recent case of the sati of a teenage widow sparked off a furious debate over the proper relationship between modern, secular and traditional, religious society; for opposing points of view see A. Nandy, "The Human Factor," The Illustrated Weekly of India, 17 January 1988, p. 20 (arguing that sati represents a valid if darker side of traditional and now threatened Indian culture); contrast with P. Philipose and T. Setalvad, "Demystifying Sati," The Illustrated Weekly of India, 13 March 1988, p. 40; K. Sangari, "Perpetuating the Myth," 342 Seminar (1988) 24 (criticizing the nativist anti-colonialism of the defenders of sati). I am grateful to Tejaswini Niranjana for these references.
123. Matter of J. (1995) No. A72 370 565 (IJ, Baltimore, April 28) reported in 72 Interpreter Releases (1995) 1375.
124. See note 29.
125. See note 72.
126. The first FGM asylum case to come to Western attention was that concerning a Malian woman, Aminata Diop, who sought asylum in France in 1991. Though the French asylum adjudication body (OFPRA) refused her asylum application on the basis that she had not effectively exhausted the domestic remedies available to resist mutilation, it did decide that FGM was a form of persecution and that the threat of it could found an asylum claim, UNHCR REFCAS Directory (1991) Case No. 164078, September 18. The negative decision by OFPRA in this case created such an outcry that Diop was eventually granted permission to reside in France permanently.
127. Canada had already made female genital mutilation a possible grounds for asylum in the 1993 Guidelines on Gender Persecution, see note 23. In response to a question about the impact of this policy on refugee admission numbers the Canadian Immigration and Refugee Board spokesman said: "We referred to it here as the floodgates argument; it just did not happen." C. W. Dugger, "U.S. Hearing to Decide Rights of Women Who Flee Genital Mutilation," New York Times, 2 May 1996.
128. This case can be contrasted in this respect with an earlier U.S. case, Matter of Oluloro (1994) A72-147-491, IJ Portland, Ore., March 23, where the court granted a suspension of deportation to a Nigerian woman and her two young U.S. citizen daughters, on the basis that the likely imposition of FGM on the daughters created an extreme hardship justifying such relief. In this case FGM is described as "a brutal, gruesome ritual that violates the most fundamental notions of decency and civilization at the heart of this Republic," quoted in I. Gunning, "Female Genital Surgeries and Multicultural Feminism: The Ties that Bind, the Differences that Distance," unpublished manuscript on file with author, p. 34; this manuscript contains a detailed critique of the Ololuru judgement and its "civilized-barbaric oppositional imagery." Whilst the "racialised binary oppositional representation" adopted in the judgement is unacceptable and regrettably typical of much Western judicial comment in this field, the successful outcome of the case, the first suspension of deportation based on fear of FGM, is to be applauded, representing as it does a recognition of forms of hardship not previously considered within Western-centric U.S. judicial discourse. Moreover the judgement alludes, albeit weakly, to the difficulties involved in the critique of FGM: "Although [the Court] attempts to respect the traditions and cultures of other societies, as to this practice the Court concludes that it is cruel and serves no known medical purpose" (p. 3).
129. Matter of M.K. (1995) A72-374-558, IJ Arlington, Va., August 9, 18. The applicant's claim to asylum was upheld not only because of fear of persecution based on FGM, but also because of her resistance to physical spousal abuse and her political activism, all of which were held likely to result in further persecutory acts if she was returned to Sierra Leone.
130. C. W. Dugger, "Woman's Plea for Asylum Puts Tribal Ritual on Trial," New York Times, 15 April 1996, A-1.
131. In the Matter of X, Government's Brief in Response to Applicant's Appeal From Decision of Immigration Judge, on file with author, 14.
132. Note 79, p. 17. The government's brief then qualifies this vague and subjective test by explicitly excluding the following situations as not reaching the "shock the conscience threshold": "relatively minor actions such as bodily scarring . . . or male circumcision"; bodily invasions inflicted on consenting or nonresisting individuals, so that "persons who were subjected to FGM in the past, at a time when they consented or at least acquiesced (as in the case of FGM practiced when the woman was a small child) have not experienced persecution"; and situations where the applicant would be able to escape the feared persecution even if she would be subjected to social ostracism or economic pressure (such as receiving reduced wages) as a result. This solution has the merit of ensuring that refugee numbers will not be noticeably affected because very few asylum applications based on "objectionable cultural practices" will succeed: ostracised teenagers, traumatized survivors, and the vast majority of FGM victims - young "acquiescing" girls under sixteen - would all be excluded.
133. C. W. Dugger, "U.S. Grants Asylum to Woman Fleeing Genital Mutilation Rite," New York Times, 14 June 1996, A-1.