Jaqueline Bhabha Embodied Rights - Gender Persecution, State Sovereignty, and Refugees

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Embodied Rights:
Gender Persecution,
State Sovereignty,
and Refugees
Jacqueline Bhabha
i;l
efugees crystallize the conflict between two founding principles of modern

society: the belief in universal human rights which inhere in all individuals by virtue of their common human dignity, and the sovereignty of nation
states. Legal systems -both national and international-address this conflict
in their refugee provisions and decision makers confront it in judgements on
individual cases. A janus-like focus, one eye on the global, the universal, the
international, the other on the particular, the specific, the national, is required
of both. As numbers of refugees escalate2 and the post-war international commitment to refugee protection in the West is superseded by a preoccupation with
I would like to thank Arjun Appadurai, Lauren Berlant and Katie Trumpener for their helpful
comments, John Woods and Rashid Khalidi for their computer wizardry and Homi Bhabha for his
many rays of light.
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. Zntl. 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. 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 Worldk Refugees: The Challenge of Protection (Penguin, 1993, p. 1).
Public Culture 1996, 9: 3-32
0 1996 by The University of Chicago. All rights reserved.
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Published by Duke University Press
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immigration restriction and border f~rtification,~

that focus shifts revealing the
ethical limits of the international order, The common dignity supposedly inherent
in all human beings is, it emerges, differentially coded throughout the refugee
adjudication system.
This double focus is particularly evident where refugees flee gender persecution-oppression related to intimate norms of one sort or another. For in this
context prevalent notions of individual privacy and human rights, in matters of
sexuality or reproductive choice for example, clash with equally established conceptions of legitimate state interest in questions of public morals and demography. In the modern state, the duty to produce future citizens inheres in the same
subject as the right to sexual privacy; but equally, from the vantage point of international law, the sovereign states obligation to respect citizens fundamental
human rights is paralleled by its right to address questions of population size.
This essay explores the conflict and interaction between notions of inherent
human rights and state sovereignty as they emerge in asylum cases based on
gender persecution. The conflict is clear: human rights arguments are supposed
to trump sovereign states justifications for oppressive or restrictionist behavior
and the international refugee system is a mechanism for translating this theory
into practice; however, if in the process of this translation, the content of protected rights is relativised in line with practices prevailing in different states, the
system is undermined and the protection accorded individuals diminished. Intimate behavior then becomes a legitimated site of state control.
Culturalist arguments offer a particularly persuasive means of justifying a
denial of individual protection because they may not entail contradiction of the
general principle: though human beings have a common inviolable dignity, a
given society may impose certain norms of behavior because it considers them
consistent with that human dignity. Norms about quotidian life, the various instances of private behavior such as dress codes, personal relationships, sexual
conduct and initiation are most amenable to these arguments because within international law generally and human rights law in particular, they have traditionally
been disregarded as relatively trivial and frivolous, in contrast to the classic
3. 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. Refigee L. (1993) 516; J. Bhabha and S . Shutter, Womens
Movement: Women Under Immigration, Nationality and Refigee Law (Trentham Books, 1994, ch. 8).
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grounds of persecution -public political activism and discrimination based on unchangeable physical or social characteristics. Gender persecution cases, where
private choices clash with public expectations of gendered identity, reveal the unresolved tension between individual and state interests in the control of sexuality,
and thus provide a fertile arena for investigating arguments qualifying the scope
of universal human rights intervention and denying refugee pr~tection.~
Moreover, in the post-Cold War era, when foreign policy (mirroring electoral
advantage) is increasingly invoked to mandate restricting access rather than supporting protection, there are clearly forceful political reasons why the potential
trumping effect of human rights-based arguments is vulnerable at the outset. But
this is also the era when the West is championing one of its prize exports, respect
for universal human rights, as part of its new assault on the rest and in tandem
with its foreign policy strategy of good g~vernance.~
To what extent can these
same human rights-based arguments be turned inwards to challenge Western practices? Cases where the very human rights violations, invoked to criticize nonWestern governments, are imported into the domestic arena through asylum applications and presented as a basis for seeking protection, reveal how refugees
become limit cases for the ethics of a given state.6 A historical sketch of the evolution of modern international refugee law precedes that inquiry.
Modern International Refugee Protection-The
between Individual and State Rights
Post-War Compromise
The events of the Second World War, and in particular the evidence of mass extermination and unprecedented barbarity of governments against their own citizens, led to the emergence of an international consensus on the importance of
recognising and promoting the inherent dignity and . . . the equal and inalienable
rights of all members of the human family7 (emphasis added). It was accepted
that states could no longer be regarded as the sole arbiters of the needs and entitlements of their citizens8 and that these might become a legitimate concern of
4. I am grateful to Lauren Berlant and Katie Trumpener for suggestions incorporated into this
part of the argument.
5. S. Huntington, The Clash of Civilizations? 72 Foreign Affuirs (1993) 22; A. Shacknove,
From Asylum to Containment, see note 3, p. 530.
6. A. Shacknove, From Asylum to Containment, see note 3, p. 531.
7. Universal Declaration of Human Rights, U.N.G.A. Res. 217 A(II1) of December 10, 1948,
Preamble.
8. 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 states absolute authority within
its territory.
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international law, that national democracies require[d] international democracy

. . . to be sustained and developed.g The commitment to universalism in the recognition of fundamental human rights was thus inextricably linked from the start
with a challenge to doctrines of strong, national, territorially based sovereignty.
To erect the contemporary edifice of human rights and refugee protection, it was
necessary to weaken the exclusive access of the individual state to its citizens,
or conversely the complete dependence of citizens on their own government. This
was problematic in two respects.
First, since the international order had been based on recognition of sovereign
states, with sole rights to jurisdiction over their particular territory and population, irrespective of their representativeness, there had been no question of or
mechanisms for states being subjected to international moral requirements. The
efficacy of international law depended crucially on the extent to which states had
an interest in the new scheme and therefore agreed to implement their obligations.
Curtailments of sovereignty could not be wrenched from states, they had to be
ceded willingly.
Second, loosening the reliance on the territorial states protection could only
increase human rights implementation if alternative protectors were available.
In a world of nation states this presupposed another challenge to state sovereignty,
a requirement that states accept some form of responsibility for individuals or
populations originating from outside their territory. But control over which noncitizens can have access to the territory is a defining characteristic of the modern
state, and states in the twentieth century have guarded their borders with increasing jealousy.
Recognition of these two major constraints, the need for state acquiescence
for effective curtailments of sovereignty, and the centrality of immigration control
to state power, affected the content of the post-war human rights instruments and
the specific provision made for refugees. At the same time, in the aftermath of
the Holocaust and confronted by huge refugee populations in Europe,O there
was substantial support for some international instrument affording protection
for refugees. This is reflected in the 1948 Universal Declaration of Human Rights.
Article 14 states: Everyone has the right to seek and to enjoy in other countries
asylum from persecution (emphasis added). This article describes a right to seek
9. D. Held, Democracy: From City-states to a Cosmopolitan World Order? 40 Political Studies
(1992) 10, 11.
10. 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 Rehgee Crisis (Oxford
University Press, 1993, p. 46).
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asylum and a right to enjoy it if it is granted, but no right for any individual to
demand or obtain asylum. Both rights if realised concretize the separation of
individual human rights from national sovereignty.
Though it crystallised the new post-war thinking on human rights, the Universal Declaration on its own lacked binding force. And while most of its rights
were later articulated in binding conventions, no right to asylum was included
in the 1951 Convention relating to the Status of Refugees, the legal instrument
central to modern refugee protection, or in any other international instrument.
Thus the well-known prohibition on refoulement contained in Article 33 of the
1951 Conventionll contains no obligation on a particular state to offer permanent
asylum; it merely injuncts a state from sending a refugee back to a persecuting
country. This obligation can be met by sending the refugee to another, safe country or by keeping the refugee in a temporary status until the risk of persecution
ceases. According to the United States Supreme Court, considering the interdiction of Haitian refugees by the U.S. Coast Guard, it can even be met by forcibly
preventing access to the host countrys territory, so that no question of expulsion
arises. l2 So the encroachment on territorial sovereignty required by the Refugee
Convention is limited. Moreover in the absence of any international judicial machinery to adjudicate between asylum seekers and host countries, national authorities have been final arbiters in the implementation of their responsibilities. They
have preserved considerable leeway to adjust their humanitarian obligations as
their political interests require. Indeed the politically partisan nature of the commitment to refugee protection was an important aspect from the outset.
The Cold War Legacy: The Influence of Foreign Policy
on the Refugee System
At the time when the Refugee Convention was being drafted, between 1948 and
1951, the Cold War was in full swing: the states participating in the process were
sharply polarised, a crucial historical determinant of the shape of contemporary
international refugee law. Socialist states typically accorded central importance
to socio-economic rights (also known as second generation rights), the protection
1 1 . 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.
12. Sale v Haitian Centers Council, 113 SCt. 2549. For a persuasive critique of this judgement
see H. H. Koh, Reflections on Refoulement and Haitian Centers Council, 35 Hurvurd Zntl L. J.
(1994) 1.
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of a basic standard of living for all citizens, the access to essential resources such
as housing, medical services, food, employment; in their view, however, international protection was not to be afforded to those fleeing their country because
of ideological disagreement. Western states on the other hand were concerned
that protection by the international community should be afforded precisely to
those fleeing for ideological reasons, those whose civil and political (first generation) rights were under attack. In the event the Western bloc successfully
asserted its greater power: the definition of a refugee incorporated into the Convention reflected liberal political values of nondiscrimination, individual autonomy and rationality and excluded socialist socio-economic concerns. The refugee
par excellence was someone heroically seeking to assert his (typically male) individuality against an oppressive state. The apparently neutral formulation of the
refugee ensured that Soviet dissidents would qualify for international protection
while Western vulnerability in the area of social and economic rights was excluded from scrutiny by the refugee regime. Western claims to the protection of
universal human rights must be assessed critically in the light of this fundamental, liberal individualistic bias. l3
Scoring ideological successes against the Soviet bloc during the Cold War certainly provided a justification for the limited encroachment on state sovereignty
that the refugee system required (decisions about which and how many refugees
to accept were always taken by individual states, never imposed by the international organizations). This policy of privileging refugees from Communism is
most clearly evidenced by U.S. refugee policy and practice of the period but the
effect of foreign policy on refugee admissions is evident in other jurisdictions
too. l4 The change in world politics following the end of the Cold War disrupted
this direct causal link between foreign policy concerns and refugee policy. Instead
of a means for scoring ideological successes against the Soviet bloc, refugees
were increasingly perceived as a loophole in immigration control procedures,
a cost of the post-war human rights era with no countervailing benefit. Moreover, as the absolute numbers of asylum applicants in the West escalated from
13. J. Hathaway, The Law of Refugee 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. Zntl L. (1986) 1.
14. 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.
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the 1980s onwards and as the proportion from destitute developing countries relative to industrialized ones increased, policies of deterrence and exclusion became
political assets. Refugees were increasingly viewed as an undifferentiated part of
foreigners, illegal immigrants, outsiders, rather than as vehicles for condemnation of enemy regimes. Domestic factors, particularly recessionary tendencies, the widespread resurgence of popular racism and mass unemployment, have
combined with the changed foreign policy agenda, setting the stage for a growing
divergence between human rights and refugee law. l5
legal Standards and Ethical Judgements-The
Relevance of National Sovereignty
Immigration judges and asylum adjudicators deciding refugee applications have

to confront and manage this divergence. Though formally separated from the
executive branch of government explicitly charged with implementing restrictionist immigration policies, these decision makers are at the very least subject to
the prevailing climate of opinion, well captured by the comments of members of
the U.S. House of Representatives debating a far-reaching immigration bill in
March 1996: the bill was probably the most important bill that we will consider
this year; stopping illegal immigration represented the most important federal
law and order issue in generations.I6Often their institutional position makes immigration judges particularly prone to conservative or anti-immigrant positions. They are also likely to share the foreign policy assumptions and priorities of their government. They apply a legal standard informed by an ethical
judgement about the merits of each individual case. The legal standard is set forth
in the 1951 United Nations Convention relating to the Status of Refugees. A
refugee is a person who
owing to a well-foundedfear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
political opinion, is outside the country of his [sic] nationality and is
unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being
15. See references in note 3.

16. House Approves Immigration Bill after Removing Legal Immigration Restrictions,73 Znterprefer Releases (1996) 350.
17. 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.EU. Rev. of
Law and Soc. Change (1992).
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outside the country of his former habitual residence . , . is unable or,

owing to such fear, is unwilling to return to it* (emphasis added).
The crucial terms of the refugee definition, well-founded fear and persecution, are not defined in the Geneva Convention or in any national legislation.i9
The ethical judgement that decision makers exercise when determining whether
a particular asylum seeker meets the Convention test is a product of the complex
interplay between concepts of universal rights and concepts of state sovereignty:
does this behavior constitute persecution in this culture? Is this individual being
persecuted for belonging to a particular social group in that society? Could this
behavior give rise to a well-founded fear of persecution in a person coming from
this country?
All decisions about the relationship between personal identity and national or
ethnic origin confront asylum adjudicators with the central paradox of refugee
protection: it undermines the ideal of sovereign nation states (by providing nonnational protection) whilst reinforcing the division of the globe into nation states
as a whole (by insisting on the necessity of state protection). The refugee is
defined by the very fact of being outside yet from his or her country. Where issues
of intimate behavior, rather than chosen political opposition and its attendant
heroic acts, give rise to asylum claims, the asylum judge is drawn into a highstakes comparison and objective evaluation of opposing normative and ethical
systems where a sovereign states internal cultural norms and policies may be
judged persecutory. This is fertile soil for claims and counterclaims about universalism, cultural relativism and cultural imperialism.** The issue is further
18. 1951 United Nations Convention Relating to the Status of Refusees Art. 1 A (2).
19. 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 persecutors 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 E2d 509, 516 (9th Cir, 1985); others stress the division between civilized or legitimategovernment 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 E2d 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 E2d 1160, 1163 (7th Cir. 1991).
20. 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-Naim,
Towards a Cross-Cultural approach to defining International Standards of Human Rights -The Mean-
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complicated in the asylum context because restrictionist immigration pressures

and partisan foreign policy agendas have a clear bearing on the decision-making
process. Thus decisions upholding an asylum applicants claim of persecution
may contain culturally arrogant, even racist descriptions of the state of origins
policies; conversely judgements that dismiss the asylum application may adopt
the language of cultural sensitivity or respect for state sovereignty as a device
for limiting refugee admission numbers.
legitimating Persecution: Respecting Sovereignty or Restricting Refugee Numbers?
Contemporary debates about abortion, gay rights and welfare mothers illustrate
the extent to which sexual/reproductive rights uncomfortably straddle the
publidprivate domain within western political discourse. The same contradictory
positioning is evident where noncitizens rights are at issue. Can a woman successfully claim asylum when her society of origin denies her (and women in general) freedoms considered fundamental according to international human rights
norms? Conversely, can an insistence that she conform to norms prevailing in her
country of origin amount to persecution?**
~
~~
ing of Cruel, Inhuman or Degrading Treatment or Punishment, in Human Rights in Cross-Cultural

Perspectives: A Quest for Consensus, edited by A. An-Naim (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. Rfs. 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 Chinas policies towards women, S. Hom, Female Infanticide in China: The Human
Rights Specter and Thoughts towards (An)other Vision, 23 Colum. Hum. Rfs. L. Rev. (1992) 249.
2 1. 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, Womens 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
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The cases analysed below exemplify the invocation of state sovereignty to

define ethical and ideological boundaries for international protection. Asylum
adjudicators have tended to use simplistic notions of identity when analysing
female applicants complex multilayered sets of identifications, and to think of
political opposition related to gender difference solely in terms of differences between nations rather than in terms of differences within nations, even within
ethnic, religious or kinship groupings. By using nationality as a homogenizing,
essentializing category these decision makers have erased difference and domination within the national group, particularly as they are inscribed in gendered
norms.
A clear example of this process is an early case decided in Great Britain. In
1984 Mashid Mahmoudi Gilani, the finance manager of a chemical company, fled
the Islamic revolution which had overthrown the Shah of Iran and applied for
asylum in Britain. She based her asylum application on her fear of persecution
arising out of her fundamental opposition to the regimes policies for women as
they had impacted on her personally. The 1951 Refugee Convention does not include gender as one of the grounds of persecution.22 She therefore based her
claim of her fear of persecution on her membership of a particular social group,
that group being either women in general or Westernized middle-class Islamic
women. In the alternative she argued that her well-founded fear of persecution
was for reasons of political opinion or religion.23 As evidence in her appeal
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 IntZ L. 1. (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. f. (1993) 511; E. Love, Equality in Political Asylum Law: For a Legislative Recognition of Gender-based Persecution, 17 Haw. WomensL. J.
(1994) 133.
22. 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.
23. GiZani 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
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against refusal of asylum she described incidents where she had been
reprimanded for her mode of dress by the regimes revolutionary guards. On one
occasion she had been threatened with imprisonment for not wearing a veil and
clothing which covered her whole body.24
As a result of these incidents she had suffered a nervous breakdown leading
to a skin disease. When asked by the immigration adjudicator what would happen
if she went back to Iran she replied: I think my nervous breakdown would get
worse. . . . I wont be able to have a social and private life. I will just be stuck
in my own room or in a hospital. I need a new life- somewhere I can stay without
fearing. . . . I need somewhere to stay to find myself. Gilanis testimony was
supported by an expert on the position of women in Iran at the time who gave
details of severe punishments inflicted on those who did not conform to the strict
dress
As a result of this evidence, the immigration adjudicator decided:
as a matter of common knowledge that women of the Islamic faith are regarded
to coin a phrase as second class citizens. . . . Further that the regime in Iran is
regarded with abhorrence in the West and has been roundly condemned by the
United Nations. . . . I fully accept . . . women in particular in many instances
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 Lazo-Majano v INS, 813 F.2d 1432 (9th Cir. 1987). See also UNHCR Catalogue Re$
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 womens 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 Womens Asylum Claims, 71 Interpreter Releases
(1994) 813.
24. 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.
25. For a description of the Iranian regimes 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.
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[have] suffered horrendous treatment . Turning to the particular circumstances

of the asylum applicant:
the appellant, from a middle-class background who has tasted the relative freedom allowed in Iran during the regime of the Shah and the
equality afforded to women in the Western world, does not wish to
return to Iran, where it is quite clear women in general are seriously
underprivileged. . . . However this is something that applies to all
women in Iran . . . it is clear that a very large number of women in
Iran do not agree with the emancipation of women. It seems to me one
is on dangerous ground if you attempt to interfere with a persons
customs or religious beliefs and on even more dangerous ground. if you
do so on a national or world wide scale (emphasis added).
Yet interference with the applicants beliefs by the Iranian government was precisely the basis of the asylum application. At a subsequent, higher level appeal
against refusal of asylum, refugee status was denied again, this time on the following grounds:
there is no evidence that the appellants objections to these practices
stem from any difference in political opinion rooted anywhere other
than in the practices themselves . . . . If the liability to persecution
flows from the inability to exercise basic human rights, then this could
amount to persecution because of being a woman. It is a matter of
degree and in assessing the matter, we bear in mind that many women
in Iran seem content with their lot, and that in Islam, men and women
are not treated equally6 (emphasis added).
To make prevalence a qualifying factor in calculating access to rights is to depoliticize majoritarian dominance. By conflating the applicants customs and
beliefs with those of the Iranian government, establishing a binary opposition between Westernized and Iranian worlds, and using a personalized appeal to national sovereignty as a trump, this case maps the Iranian state directly onto the
womans body, and eliminates precisely that space for the articulation of difference within the category of woman, and of individual autonomy that the refugee
regime was designed to protect. Significantly, this case also eliminated an escape
26. Gilani v Secretary of State, 12.
27. 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.
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route for a potentially sizeable group of westernized Iranian women fleeing the
excesses of the Khomeini revolution, at precisely the time when the danger of
mass asylum requests in Britain from Iranians loomed large.28 Justifying the
denial of individual protection by relying on state sovereignty thus served the dual
purpose of homogenizing all Iranians (including Iranian feminists) into a unitary,
non-Westernized classification and limiting the numbers of potential Iranian
entrants to Britain.
Five years later very similar issues were addressed in an American case concerning an Iranian woman appealing the refusal of asylum. Prior to fleeing Iran,
Parastoo Fatin had belonged to a pro-Shah student group opposed to Ayatollah
Khomeini, to a womens rights group associated with the Shahs sister and had
refused to wear a veil. Like Gilani, she testified that if forced to return to Iran
she would have to practice the Muslim religion, including wearing the veil, or
be punished in public or be jailed. She also testified to considering herself a
feminist. Her claim for asylum was rejected by the immigration judge on the
basis that her fear of return to Iran while indeed understandable is based upon
uncertainty and the unknown.29Appealing this decision Fatin argued that her
fear of persecution was on account of her membership in the particular social
group of the upper class of Iranian women who supported the Shah of Iran, a
group of educated Westernized free-thinking individuals. The Board of Immigration Appeals (BIA) rejected her appeal on the basis that she would merely be
subjected to the same restrictions and requirements as the rest of the population.
This is a version of the sovereignty argument analysed in the Gilani case above;
even if state-imposed practices go against the applicants fundamental beliefs and
result in a fear of persecution, it is up to an individual member of the society
to conform because of her nationality (emphasis added). Fatins further appeal
to the Court of Appeals was similarly unsuccessful.30
28. 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 governments refusal of asylum, Dina
Djahanara Tadayon v Secretaly 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 Shahs 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).
29. Fatin v INS, 12 F.3d 1233 (3rd Cir. 1993) 1237.
30. Before this forum Fatins advocates defined her social group membership as consisting of
Iranian women who refuse to conform to the Governments gender-specific laws and social norms.
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The Next Stage: Feminism and the Islamic Threat
In the post-war era, the Iranian Revolution was the first major precipitator of refugees from Islamic fundamentalism to the West. Though initially fuelled by
strong pressure to homogenize the evil new empire and to exclude would-be refugees from Iran as the above cases
the reaction of western asylum adjudicators to the Islamic revolution has evolved over time. As the perceived threat
of Islamic fundamentalism spread beyond Iran, a more complex agenda has intervened, creating space to validate dissidents from within the regimes and problematizing the legitimacy of some states claims to sovereignty.
One example of this differentiating approach is the case of Saideh Fisher, also
concerning an Iranian woman fleeing the Ayatollahs fundamentalist regime. In
this case a three-judge panel of the U.S. Court of Appeals for the 9th Circuit
vacated the BIA decision refusing asylum by relying on the applicants distinction
between different forms of Islam -the Iranian regimes ultraconservative rules
on the one hand and her own deeply held Muslim religious convictions, at odds
with those espoused by the Khomeini regime.32 The Court accepted the
applicants contention that the moral codes are persecutory because they represent a conception of Islam that [the applicant] finds abhorrent and because the
regime is attempting to suppress her beliefs through sanctioning her for noncompliance with the moral
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 governments 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 petitioners brief, the routine penalty for noncompliance is 74 lashes,
a years 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 womans case, Sufuie v INS, 25 E3d (8th Cir. 1994) 636.
3 1. 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.
32. Fisher v INS 61 F.3d 1366 (9th Cir. 1995) 1369.
33. Fisher v INS, see supra note 32, 1374. The case was eventually reheard by the 9th Circuit
Court of Appeal en banc and the applicants appeal against the BIA refusal of asylum was denied.
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Another example concerns a U.S. immigration judges decision about a Jordanian Muslim asylum seeker fleeing domestic violence. 34 The asylum seeker
based her claim on the persecution to which she had been subjected by her husband and the unwillingness or inability of the Jordanian state to protect her from
it.35She established that her powerful and wealthy husband was well-connected
to the Royal family; had subjected her to severe physical abuse over a thirty-year
period; and her attempts to resort to legal remedies for protection had been unsuccessful because of the husbands prominence. The immigration judge found
that the wife had established a well-founded fear of persecution based on her having continued to express her belief in Western values through her actions; that
she had challengedthe society and government of Jordan and had been punished
because her actions collide[d] with the societal and religious norms in Jordan.
. . . Leaving Jordan . . . was . . . the respondents latest attempt to challenge
her husband, his society, and his government. In deciding to grant the woman
asylum, the judge concluded: the respondent is among the group of women who
are challenging the traditions of Jordanian society and government. The
respondents challenge of these traditions is threatening the core of Jordanian society, and because of this, the respondent is beaten to achieve her submission into
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 individuals 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 ZNS (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 Handmaids Tale when seven judges of this court are capable of expressing
such a view (p. 37).
34. In the matter of A and Z [1994] A 72-190-893,A 72-793-219.
35. 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 Zmmig. L. J.
(1993) 173; P. Goldberg, Anyplace but Home: Asylum in the United States for Women Fleeing Intimate Violence, 26 Cornell Zntl. L. J. (1993) 565. Canadian courts have granted asylum on this basis
in numerous cases, see for example Muyers v MEZ (1992) F.C.A. N0.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.
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the societys mores. The respondent should not be required to dispose of her
beliefs36 (emphasis added). The applicant is accorded an autonomous space
from which to dissent and challenge; unlike in the earlier cases, there is no invocation of nationality to circumscribe her private expectations or beliefs, though
by characterising her dissent as western the court perpetuates the earlier essentialized dichotomy that elides social and political complexities in Jordan and the
West .37
In the aftermath of the Iranian Revolution many Western jurisdictions considered whether Iranian women fleeing their societys Islamic norms qualified for
a grant of asylum. The general pattern of decision making has reflected the shift
outlined above: courts3*tended to deny asylum in early cases but show greater
sensitivity to the reality of dissidence over gendered norms in later decisions.39
36. In the Matter o f 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 E2d (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 womans flight from sexual violence is taken
as evidence of a feminist political opinion without such an opinion having been explicitly articulated.
37. For example, he suggests that domestic violence is defended in Jordan and prevented in the
West, a manifestly false suggestion.
38. 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.
39. 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 politicalheligious 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 Repon, 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 tribunals 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 womans 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
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This reflects a gradual but growing judicial acceptance of gender persecution as

a valid ground for the grant of refugee status.40 But it also mirrors more farreaching geopolitical changes. This body of case law has emerged since the second half of the 1980s. It has therefore coincided with the fall of Communism as
the prime target of Western foreign policy, and the rise of Islamic fundamentalism as a movement of increasing concern to Western go~ernments.~~
The latter
development may be associated with a decreasing deference to the state sovereignty of Islamic regimes and may contribute to a climate of opinion in refugee
decision making where feminist arguments concerning womens rights are used
(and at times abused) to defend an undifferentiated concept of Western values,
to attack a simplistic, homogenized notion of Islam and therefore to serve a new
foreign policy-inspired agenda. More complex understandings of the intricate,
often nonlinear interactions between racial, cultural, class and other social differentiations have yet to find their way into judicial thinking. Meanwhile nonWestern women may now have increasing scope, at least in the refugee adjudication context,42for defending their decisions to break away from certain socially and culturally imposed behavioral norms. Whether this will significantly
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).
40. 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, W c i a l 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 Commissioners 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 womens 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.
41. For a description of this process see The Red Menace Is Gone. But Heres 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.
42. 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.
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affect their overall prospect of success in gaining refugee status is not clear, given
the continuing decline in access to refugee procedures and the increasing hostility
to non-Western immigration generally.
Intimate Violence: The Territory of Womens Bodies
The incommensurable claims of individual human rights on the one hand and
policy-motivated considerations regarding state sovereignty on the other have surfaced in another group of gender-related asylum cases. These concern womens
rights to control their own bodies, more specifically their reproductive or genital
organs, in opposition to prevailing social or legal norms. Whereas Western preoccupations with Islamic fundamentalism may coincide with a more receptive
climate towards refugees challenging Islamic norms (much as a hardening of
attitudes during the Cold War gave anticommunists relatively easy access to the
West), conflicting views on the relative importance of non-interference with
state norms (and its correlative impact on keeping refugee numbers down) as
against human rights interventionism have fuelled a complex and contradictory
body of refugee case law. Human rights-based arguments have been used vociferously to condemn barbaric or primitive practices occurring in non-Western
states, but less consistently to protect victims of those practices seeking refuge
in the West. A double standard is often apparent.
A substantial part of this body of law arises out of Chinas recent population
control program. Its consistencies may, it is suggested, mirror the Western, particularly American, complex policy towards China as a valued trade partner
though human rights violator. International endorsement of the achievements of
the Chinese population control program43has been coupled with sustained criticism of the attendant human rights abuses. According to one expert, Chinas
43. The policy was first introduced in 1979 in Sichuan province. Inaccurately termed Chinas 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 Chinas
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 states policy on population growth, see Zhang Lei and Yang
Xiaobing, Chinas 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 Chinas Population Policy: Is It Necessary? unpublished manuscript delivered to Workshop on East Asia, University of Chicago, April 30, 1996.
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birth control program has earned a worldwide reputation as the most draconian
since King Herods slaughter of the innocents.44Since the late 1970s substantial
evidence of coercion has indeed accumulated; penalties have included mass
mobilizations for sterilizations, and abortion from which women often flee
from their homes and go into hiding because once caught up . . . they have little
chance of refusing what the cadres demand,45loss of employment for urban
families and revocation of land rights for rural dwellers. Female infanticide, common in China before the Revolution but virtually eradicated in the early 1950s,
returned on a significant scale. According to one American reporter, there were
close to 300,000 cases of female infanticide in China during 1982 and 345,000
in 1983.46
Evidence of enforced abortions and sterilization of women has featured prominently in the asylum litigation and has been the locus of the opposition outlined
above. The arena of conflict is clear: Chinas right and need to control its population has been endorsed by many policy makers and refugee adjudicators. At the
same time there is widespread international agreement that involuntary sterilization and coerced abortion constitute basic human rights violation^.^^ In 1993
both the Canadian Federal Court of Appeals and the U.S. Board of Immigration
Appeals reviewed cases challenging the refusal of refugee status to Chinese applicants fleeing their countrys coercive population policies. The cases had opposite
outcomes.
The Canadian case concerns Ting Ting Cheung and her daughter Karen
Lee.48In 1984 Cheung gave birth to a son, following which she used an intrauterine device, in compliance with the one child policy, as a method of birth
control. Medical complications caused by the device forced her to abandon its
use, and over the next two years Cheung had three abortions. She refused sterilization urged upon her by her doctor, apparently because of her husbands oppo44. J. Aird, Slaughter of the Innocents, note 43, p. 1.
45. J. Aird, Slaughter of the Innocents, note 43, p. 17.
46. M. Weisskopf, Chinas 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.
47. 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, inhuman or degrading treatment; see also Skinner Y 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.
48. Cheung v Canada (Minister of Employment and Immigration) Federal Court of Appeals, 102
D.L. R. (1993) 4th 214.
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sition to that procedure. In 1986 she became pregnant again and, having decided
against another abortion, moved away from her home to her parents-in-law, who
lived in a different area, in order to avoid the authorities and a coerced abortion.
After giving birth to Karen Lee, Cheung returned to her home but was compelled
to leave her daughter with the grandparents.
The evidence presented was that this child was ineligible for normal medical
attention and food subsidies,49and might not be registrable for school. Shortly
after her return home, Cheung was forcibly taken by the Family Planning Bureau
to be sterilized. Because she was suffering from an infection at the time, the
operation was postponed for six months. During that period Cheung fled to her
in-laws to avoid compulsory sterilization. While there she became pregnant and
had another abortion. Over the next three years Cheung returned to her home
periodically to visit her son who was living with her parents. In the course of
these visits in 1989 she participated in three pro-democracy movement demonstrations. Shortly afterwards, the Public Security Bureau visited her parents
home on several occasions. Sometime thereafter she fled to Canada with her
daughter.
The asylum applications of mother and daughter were first considered by the
Refugee Appeals Board who dismissed them, though the Board accepted that
Cheung would be sterilized if forced to return to China. According to the Board
the evidence indicated simply a desperate desire [on the part of the Chinese
authorities] to come to terms with the situation that poses a major threat to its
modernization plans. It is not a policy born out of caprice, but out of economic
logic. . . . The possibility of coercion in the implementation of the policy is not
sufficient . . . to make it one of persecution. I do not feel it is my purpose to tell
the Chinese government how to run its economic affairs (emphasis added).
Reasoning that a sovereign state can legitimately resort to such measures as compulsory sterilization, if there are nonarbitrary reasons for so doing, the Board
defined its responsibilities to individual asylum applicants by a variable standard,
determined by the individuals nationality. The individual womans body was considered a legitimate site of state control in China even though such control would
be considered unlawful in Canada.
The Federal Court of Appeals reversed the Boards decision: Under certain
circumstances, the operation of a law of general application can constitute per49. 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 Zmes, 19 March 1995, A-1.
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secution. . . . If the punishment or treatment under a law of general application

is so Draconian as to be completely disproportionate to the objective of the law,
it may be viewed as persecutory. This is so regardless of whether the intent of
the punishment or treatment is persecution. Cloaking persecution with a veneer
of legality does not render it less persecutory. Brutality in firtherunce of a
legitimate end is still brutality (emphasis added). The Court concluded that
forced sterilization of women was a fundamental human rights violation and that
Cheung had a well-founded fear within the scope of the Refugee C o n ~ e n t i o n . ~ ~
Confronted with the unhappy state of radical incommen~urability~~
between
Chinas demographic goals and individual human rights implementation, the
Canadian appeals court adopted an interventionist stance privileging private
choice.52
Contrast this decision with the following U.S. case.53It concerned a twentynine-year-old married Chinese man, G., one of approximately 300 passengers
aboard the cargo freighter Golden k?nture that ran aground off the coast of New
York on June 6, 1993 after a three-month voyage from China with all the passengers hidden in the ships cargo hold. Seven of the passengers died attempting
to swim to land; G. managed to reach the shore, where he was eventually arrested
and subsequently imprisoned. He was placed in exclusion proceedings, refused
asylum and withholding of d e p ~ r t a t i o nby
~ ~the immigration judge who first
heard the case; he then appealed against the refusals to the Board of Immigration
Appeals (BIA) .55
In support of his asylum application, G. claimed that his problems with the
50. 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.
51. This concept is developed in C. Sunstein, Incommensurability and Valuation in Law, 92
Michigan L. R. (1994) 779.
52. 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,
Chn 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. Ll L. Rev. (1995) 1257.
53. Matter of G , BIA Interim Decision 3215, No. A-72761974 (1993) December 8.
54. 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).
5 5 . 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.
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Chinese authorities started in 1990 when his wife was fitted with an intrauterine
device after the birth of their first child, a son. The authorities monitored the
couples use of contraception by monthly physical examinations. In 1992 G.s wife
became pregnant with their second child; to conceal this the couple left home
and moved to another part of the city. The authorities appropriated their possessions and interrogated G.s parents; when they feigned ignorance of the couples
whereabouts the authorities threatened the parents with imprisonment and destroyed their home, forcing them to flee the city. G. fled China fearing retribution
for having had more than one child. A letter from G.s wife in China after his
departure describes how the authorities had imposed a fine on him, were requiring her to undergo mandatory sterilization and were preventing registration of
the second childs birth until these measures were complied with. The BIA rejected G.s appeal. Relying on an earlier decision, in Matter of Chang,56and in
contrast to the Canadian case discussed above, the Board held that the Chinese
Governments implementation of its family planning policies was not on its face
persecutive, even to the extent that involuntary sterilization m y occur (emphasis added). According to the Board, it is not enough for the applicant to show
that such acts may have occurred or that there is a reasonable possibility that they
would occur upon his return to China. To prevail on a claim premised on Chinas
one couple, one child policy, it is incumbent upon the applicant to come forward
with facts that establish that the policy was being selectively applied against him
(emphasis added). According to this judgement, mass application prevents a state
policy that violates human rights from being grounds for asylum; as in the Gilani
case above (and in the Fisher en banc decisions7), a national norm is invoked to
delimit the space for international protection.
This reasoning has been applied in numerous Chinese asylum cases decided
in the U.S. since the precedent-setting decision in Matter of Chang. These have
included cases where the applicants pregnant wife was arrested and forced to
undergo an abortion while the applicant was fined approximately twelve times
the familys annual income and forcibly s t e r i l i ~ e d where
; ~ ~ the applicants wife
was subjected to forcible sterilization, the couples furniture was confiscated and
their home partially destroyed for nonpayment of onerous birth control fines;59
where the applicants wife had a forced abortion following an IUD failure, and
56.
57.
58.
59.
BIA Interim Decision 3107 (1989) May 12.

See notes 23 and 33 above.
Chai v Carroll (4th Cir. 1995) Lexis 4338.
Uleng v INS 44 F. 3d 379; (5th Cir. 1995) Lexis 2899.
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the applicant was threatened with having his entire business confiscated if he did
not submit to sterilization.60
These decisions apply Matter of Chang as controlling precedent. Yet, it has
been suggested persuasively that the facts in Matter of Chung were considerably
weaker than in many subsequent cases.61Moreover, over the past eight years,
there have been at least nine inconsistent U.S. administrative pronouncements regarding the effect of opposition to coercive population control policies on asylum
eligibility. Almost a year before the Chang decision the Department of Justice
had issued policy guidelines to the Immigration and Naturalization Service (INS)
to facilitate the granting of asylum to applicants fleeing Chinas coercive abortion
and sterilization programs. The INS did not implement those guidelines. Mutter
of Chang was decided a month before the Tiananmen Square massacre of June
1989; soon after efforts were made in Congress to overturn the decision. There
followed a four-year period of conflicting, contradictory and inconclusive administrative moves in relation to this issue, which have resulted in a stalemate.62
An immigration judge reviewing the administrative pronouncements characterized them thus: they amount to an administrative cacophony, undeserving of
judicial deference. To hold otherwise would be judicial abdication, not principled
judicial deferen~e.~~
The political indecision and the ambivalent foreign policy stance towards
China are reflected in inconsistent judicial decision making. Though the overwhelming majority of U.S. asylum decisions have followed Chang and deferred
to the Chinese governments population policies, several cases64have been decided the other way. In one case, a district judge held that the right to make procreational decisions was a basic right analogous to other basic rights such as freedom of religion or speech, so that the asylum applicants opposition to forced
sterilization and abortion clearly amounted to a political opinion; considering the
Chinese governments confiscation of the applicants personal property and destruction of his living quarters, the judge commented: It simply defies logic to
60. Shon Oi Lan v Waters 869 ESupp. 1483 (US Distr. 1994) Lexis 16474.
61. Chang failed to mention opposition to the PRCs 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.
62. For a concise summary see C. Gordon, S. Mailman and S. Yale-Loehr, Zmmigration Law
and Procedure (Bender, 1996, rev. ed.,pp. 33-39).
63. Guo Chun Di v Carroll, 842 ESupp. 858 (US Distr. 1994) Lexis 394.
64. Xin-Chang v Slattery 859 ESupp. 708, 711-13 (S.D.N.Y.); Zhang v Slattery No. 94 Civ. 2119
(S.D.N.Y. 1994); GUO842 ESupp. 865-70.
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contend that these governmental actions do not amount to per~ecution.~~

The
judge denied he was infringing the foreign policy territory of the political
branches, or using his decision-making power as a vehicle for foreign policy
debates in the courts. But the choice between deference to laws of foreign states
and enforcement of international human rights norms, when the two are in
conflict, is inescapably political. Judicial reticence does not alter this.
The double standard referred to earlier, where Western states unselfcritically66term certain gendered norms imposed on women barbaric or primitive, and yet fail to accord protection to individuals seeking to challenge and flee
these norms, is also evident in the recently developing jurisprudence on female
genital mutilation (FGM) as a basis for asylum. This culturally challenging
a traditional norm that concretizes - even epitomizes -gender inpra~tice,~
equality, has been the subject of considerable critical attention from within the
societies affected and the wider international community since the late 1 9 7 0 ~ . ~ ~
65. Guo Chun Di v Carroll, note 62, p. 42.
66. The self-righteous tone of much Western criticism of female genital mutilation (FGM) has
provoked critical responses, such as the following comment of the Egyptian 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, didnt and perhaps couldnt
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 Eforts to Medicalize Female Genital Mutilation (1995) Update 8.2.
67. 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 Zntl J. Health Service (1981) 45; E. Dorkenoo and S. Elsworthy, Female
Genital Mutilation: Proposals for Change (Minority Rights Press, 1992); 0. Koso-Thomas, The Circumcision of Women: A Strategy for Eradication (Zed Books, 1992).
68. 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 Afecting
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.
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Human rights and feminist activists and health professionals have stressed the
irrefutable and dramatic health hazards associated with FGM, its short and long
term painfulness and its place in a gendered system of oppression and domination; opponents of homogenizing normativity on the other hand, critical of the
cultural myopia, arrogance and racism through which the critique of FGM is
often articulated, have emphasized the practices embeddedness within a complex
web of social and political structures, the vulnerability of communities practising
FGM, particularly as immigrants in Western countries, and the need to evolve
a nonpunitive, culturally sensitive and consensual approach to modification from
within the affected group. Certainly extensive ~ondemnation~~
of the various
forms of the practice stands in sharp contrast to its widespread prevalence to this
day,70unlike other traditional customs which are in some respects analogous
such as footbinding or satL71
FGM is increasingly entering the legal arena in the West as an alleged persecutory practice grounding an asylum claim. As with the Chinese cases, judicial attitudes have been characterised by an overall inconsistency; some adjudicators,
mindful of the immigration risks in opening a potential floodgate to a large group
of would-be refugees, have refused refugee status, on occasion conveniently de69. 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).
70. 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, ElCN.41
1995/42, Para 146.
7 1 . 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 Parry 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.
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fending this gate-keeping in the language of cultural relativism despite the

applicants explicit rejection of the cultural norm; in other cases an affirmation
of universal human rights norms has been coupled with an arrogant, even racist
willingness to critique the local custom and justify international normative interference. The task of defining a just, humanitarian standard for the grant of refugee
status in such cases is complex and urgent, as the brief discussion that follows
illustrates. As in earlier sections, two contrasting judgements are briefly
considered.
A thirty-seven-year-old woman from Sierra Leone, who had overstayed her
period of lawful residence in the U.S., claimed asylum, inter alia, because of
her fears relating to female genital mutilation for herself and her three minor
daughters; she feared imposition of the custom on her daughters and retribution
against herself for having publicly criticized her own, earlier m ~ t i l a t i o n The
.~~
immigration judge, relying on an argument about the nature of political opinion
similar to that outlined in the Fatin case above,73found the applicants fears unfounded and refused asylum: Her greatest fear is of the tribes back in Sierra
Leone. She disagrees with FGM, refuses to submit her children to it and fears
retribution and isolation from her tribe because of her differing views. The Court
does not find this to be an adequate showing of fear of political persecution.
. . . In this situation, respondent cannot change the fact that she is female, but
she can change her mind with regards to her position towards the FGM practices.
It is not beyond the respondents control to acquiesce to the tribal position on
FGi74(emphasis added). This statement should act as a warning to dogmatic
cultural relativists of the dangers of uncritical, opportunistic relativism .75
An opposite conclusion was reached in another U.S. decision regarding an asylum applicant from Sierra Leone, the first U.S. case in which FGM has been held
to constitute persecution for purposes of asylum.76 Here the applicant had
72. Mutter ofJ. (1995) No. A72 370 565 (IJ, Baltimore, April 28) reported in 72 Interpreter
Releases (1995) 1375.
73. See note 29.
74. See note 72.
75. 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.
76. 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
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been forcibly subjected to FGM despite vigorous resistance on her part, and was
found to be suffering from long term health problems as a result of the procedure.
In a careful and detailed judgement which avoided arrogant outrage at or dismissal of the custom,77the immigration judge found the applicants claim to fear
persecution well-founded on the basis of her political opinion opposed to the practice, and as a member of a particular social group consisting of Sierra Leone
women who are forced to undergo female genital mutilation and . . . of women
who have been punished with physical spousal abuse for attempting to assert their
individual autonomy.78By contextualizing the applicant within her society of
origin and exploring her individual political activism the judge avoided the
imposition of extraneous moralism or uncritical relativist deference.
Since these cases were decided, the issue of FGM as a basis for claiming
asylum has been catapulted from the tragic obscurity of immigration courts and
detention centers to the headlines of national newspaper^^^: the case of Fauziya
Kasinga, the nineteen-year-old woman from Togo, detained in oppressive conditions by the U.S. immigration authorities for over a year and a half pending
an appeal against refusal by an immigration judge in August 1995 of her FGMpolicy 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 Emes, 2 May 1996.
77. This case can be contrasted in this respect with an earlier U.S. case, Mutter 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: Xlthough [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).
78. Mutter of M. K. (1995) A72-374-558, IJ Arlington, Va., August 9, 18. The applicants 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.
79. C. W. Dugger, Womans Plea for Asylum Puts Tribal Ritual on Trial, New York Times, 15
April 1996, A-1.
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based asylum application, created a political outcry that reached the White
House. The compelling facts of her case, including her horror of the practice and
her escape from oppressive family pressures, became the subject of television
talk shows and web discussion pages. Shamed by the publicity, the INS promptly
released her and detailed its senior general counsel to argue the governments case
at a May 2, 1996 hearing before the precedent-setting Board of Immigration
Appeals.
The case was presented as a balancing act in which the government allegedly
attempted to provide real protection for those seriously jeopardized if returned
to their home countries and at the same time attempted to avoid damaging U.S.
sovereignty in the form of the broad fabric of governmental immigration control.*O Its proposed solution however belied the first part of this claim: it was
to limit cases where FGM or other objectionable cultural practices would
amount to persecution to those rare situations where the practice, visited upon
a resisting recipient, is so extreme as to shock the conscience of the societyfrom
which asylum is sought,,,where it is inflicted ina manner condemned by civilized
(emphasis added). Framing the test in this manner instead of regovernments7981
ferring to established international human rights norms as a basis for delimiting
persecution, replicates the tendency that has underwritten Western refugee adjudication, to homogenize gendered and other differences within groups, and to erect
an emotive dichotomy between civilized and other governments or societies.
On June 13, 1996, the Board of Immigration Appeals, in a narrow ruling, decided
that genital mutilation, as practiced by Kasingas tribe, constituted persecution
and awarded her asylum.82
80. in the Matter of X, Governments Brief in Response to Applicants Appeal From Decision
of Immigration Judge, on file with author, 14.
8 1. Note 79, p. 17. The governments 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.
82. C. W. Dugger, U.S.Grants Asylum to Woman Fleeing Genital Mutilation Rite, New York
iirnes, 14 June 1996, A-1.
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Western decision makers adjudicating asylum applications based on opposition to oppressive cultural, social or legal norms face the conflict between notions
of fundamental rights and of state sovereignty in terms of the choice of an appropriate human rights standard applicable to noncitizens. The unresolved tension between private choice and public control over matters of sexuality or reproductive rights carries over into an inconsistent, contradictory body of case
law. Moreover, the ethical stance associated with a commitment to refugee protection and membership of the international community may collide with domestic and foreign policy concerns relating to immigration control or international diplomacy. Iranian and Chinese refugees are clearly caught up in this
process. In this context the debate about the competing merits of universalist as
opposed to relativist conceptions of human rights takes on a very particular set
of implications.
Critics of the Western universalist conception of human rights must bear in
mind that in the asylum context, the application of a uniform standard informed
by human rights norms can provide the basis for a defense of the right to differ
and a critique of persecutory practices imposed on individuals which a relativist
perspective may preclude. It can also provide the consistency in the application
of basic international protection that undermines narrowly nationalistic, antiimmigrant, even racist standards for public and foreign policy. In the current,
post-Cold War world, the relation between particular conceptions and applications of human rights and Western foreign policy goals is complex. As the analysis of the gender persecution asylum cases above shows, feminist arguments resulting in a more gender-inclusive human rights climate can become allied with
the articulation of clearly anti-Islamic Western values.
Relativist conceptions of human rights, while anti-imperialist in intent and
rhetoric and sensitive to the need to contextualize social and cultural norms, can
in the context of asylum easily become vehicles for discriminatory hierarchization of human rights protection and an uncritical reinforcement of exclusionary
state practices. Deference to the sovereign powers of state governments can
parallel anti-imperialist claims to regional autonomy but readily translate into a
justification for exclusionary policies that effectively withdraw human rights protection from unwanted new migrants. Rights are not ends in themselves. They
are instruments to facilitate interventions in the political and social arena. The
context in which they are invoked crucially determines their potential effect; pragmatic considerations about context and goal should therefore influence decisions
and Refugees
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about the particular articulation of rights. Paradoxically, protection of individual

asylum seekers rights to differ, of their right to challenge the norm, is best served
by articulating and upholding notions of human rights which do not accommodate
to the particular.
Jacqueline Bhabha, formerly a practicing human rights lawyer, is now Associate Director of the Center for International Studies at the University of Chicago.
She co-authored with Sue Shutter Womens Movement: Women Under Immigration, Nationality and ReJigee Law (Trentham Books, 1994). Her current research is on the relationship between human rights and refugee law and on the
notion of citizenship in the European Union and its impact on noncitizens.

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efugees crystallize the conflict between two founding principles of modern

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immigration restriction and border f~rtification,~

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international law, that national democracies require[d] international democracy

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Relevance of National Sovereignty

Immigration judges and asylum adjudicators deciding refugee applications have

15. See references in note 3.

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outside the country of his former habitual residence . , . is unable or,

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complicated in the asylum context because restrictionist immigration pressures

ing of Cruel, Inhuman or Degrading Treatment or Punishment, in Human Rights in Cross-Cultural

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The cases analysed below exemplify the invocation of state sovereignty to

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[have] suffered horrendous treatment . Turning to the particular circumstances

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The Next Stage: Feminism and the Islamic Threat

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This reflects a gradual but growing judicial acceptance of gender persecution as

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secution. . . . If the punishment or treatment under a law of general application

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BIA Interim Decision 3107 (1989) May 12.

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contend that these governmental actions do not amount to per~ecution.~~

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fending this gate-keeping in the language of cultural relativism despite the

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about the particular articulation of rights. Paradoxically, protection of individual

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