Intersectional Interpretation and the Refugee Convention
Climate change has been identified by the United Nations High Commissioner for Human Rights (UNHCR) as being one of the most likely causes of forced migration in the coming decades.1 It has also been recognised by researchers Phudoma Lama, Namrata Chindarkar and Djoudi Brockhaus, among others, that climate change has a particularly gendered impact when it comes to forced migration.2 The UN Convention relating to the Status of Refugees 1951 (hereinafter referred to as ‘the Convention’) has long struggled to address both climate migration and gender-based persecution. This article will submit that the failure to adopt a suitably individualised and intersectional approach to gender demonstrates that contemporary interpretations of the Convention are inadequate to address issues that arise as a result of women fleeing the effects of climate change.
The article will be divided into 3 parts. Part I will criticise the current depiction of female refugees as victims, which exacerbates the Convention’s failings in the context of female climate refugees. Part II will discuss the recent decision in the Teitiota case to demonstrate how the determination compounds existing difficulties with adopting an intersectional approach to female climate refugees.3 Part III will suggest reforms to current interpretations of the Convention that would allow for an individualised, intersectional approach to be adopted in the context of female climate refugees.
The current interpretation of gender-based persecution under the Convention hinders the ability for refugee authorities to adopt an individualised and intersectional understanding of the difficulties experienced by female refugees. Gender-based claims under the Convention are primarily covered under the ‘protected social group’ element to the definition of a refugee. However, as noted by Dr Alice Edwards, this can often lead to an understanding of the female refugee that removes the potential political element to their claim in favour of a focus on social and cultural norms.4 For example, in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Another, ex parte Shah,5 two Pakistani women fleeing domestic violence and false allegations of adultery were recognised as refugees under the Convention through the identification of women in Pakistan as a protected social group.6 While this could be recognised as a progressive step forward in gender-based Convention jurisprudence, it also, as Professor Nora Honkala points out, did not consider the women to have expressed a political opinion in challenging social norms within the home.7 It is submitted that this ignores the intersection between local individualised resistance to political frameworks and gender-based persecution. If women are largely confined to the domestic sphere by a country's societal expectations, then it is difficult to interpret them as possessing a political opinion in the traditional sense of the definition utilised by the Convention.8
It is argued that UN Gender-Based Violence Officer Megan Smith is correct to recognise this interpretation as ‘painting a monolithic picture of women as passive, dependent, vulnerable victims and thus peripheral to international politics and without agency’.9 Constructions of the female refugee rely on narrow anti-individualistic depictions of victimhood, often grounded in an assumption that the female refugee will be a maternal figure. This is evident from the research of Dr Heather Johnson, who has identified that the phrase ‘women and children’ is used so often in refugee law discourse as to collapse the distinction between the two.10 Indeed, as late as 2002, the UNHCR’s Agenda for Protection included the goal ‘to [meet] the protection needs of refugee women and refugee children’,11 without demarcating any form of separation between the two categories of refugees. Some progress has been made in recent years, through for example, the focus in the New Zealand case of Refugee Appeal No. 71427/99 on the ‘cumulative’ effect of harm on the woman to establish a refugee claim.12 However, while this represents a more nuanced approach to gender-based claims, it cannot escape the ‘nexus’ requirement of the Convention that leads, as attorney Tanya Bosi points out, to ‘narrow and artificially contrived’ categories of particular social groups.13 Women are still forced to position themselves within male-centric perceptions of protected social groups, without any opportunity to enjoy the same inherent assumptions surrounding agency that exist in the context of male refugees.14
Consequently, it is more difficult for female individuality (and its subsequent persecution) to be recognised within the Convention’s refugee definition, in comparison to the more nuanced interpretation of male refugee status. Intersectional issues such as a women's race, class, and sexuality need to first circumvent this narrow perception of the female refugee in order to allow for these barriers to be utilised to establish a successful refugee claim.15 Female refugees need to first define themselves through a patriarchal lens, due to the aforementioned failure to conceptualise how women might express political opinions within a patriarchy, which in turns strips them of the ability to engage with broader persecution that may arise from the above structural inequalities.16 The Convention has been argued by Dr Annick Pijnenburg to be ill-equipped to address economic and cultural barriers across a spectrum of refugee claims.17 This exacerbates the intersectional difficulties experienced by women, who are, per researcher Humera Sultana, more likely to bear the brunt of persecutory economic and cultural dynamics.18
This anti-intersectional understanding of the female refugee will make it difficult for the Convention to be applied to allow for adequate recognition of women who flee the effects of climate change.19 This is due to these barriers exacerbating the existing problems with recognising climate refugees under the Convention, which have been identified by Professors Guy Goodwin-Gill and Jane McAdam: ‘even if the impacts of climate change were alone accepted as constituting persecution it would be difficult to establish a link with one or more of the five Convention grounds’.20 In other words, the nexus requirement under the Convention makes it virtually impossible to establish a refugee claim based solely on the effects of climate change. This difficulty is in turn compounded by the quasi-requirement under existing Convention interpretations for a female refugee to confine themselves into a strictly defined category to meet the ‘protected social group’ element of the Convention. When female refugees need to establish a link to Convention grounds created primarily with the male experience in mind–and climate change appears, at least on the face of it, to equally affect men and women21–it is difficult to establish that persecution has occurred. While it is true that climate change does in fact disproportionately affect women, the reasoning behind why current interpretations of the climate crisis view its effects as equal shall be explored further in part II. Given that gender is not one of the Convention grounds, there is an additional environmental gap in the nexus requirement that is likely to preclude future attempts for women to frame any form of gender-based persecution through the lens of climate change.22
The recent decision of the UN Human Rights Committee in Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment acts as a further indication that it will be difficult for female refugees to establish a claim based on climate change.23 In Teitiota, the applicant attempted to halt his deportation back to Kiribati on the basis that the effects of climate change on the island posed a serious threat to life. This could have allowed the applicant to reside in New Zealand due to the non-refoulement clause embedded within the Convention.24 The Human Rights Committee advised that, while it was possible for climate change-based displacement to trigger the non-refoulement clause, the applicant could not succeed in his argument as there was no immediate threat to life.
Of particular interest for this article is the emphasis the Committee placed on the requirement that the risk posed by climate change ‘must be personal, that it cannot derive merely from the general conditions in the receiving State, except in the most extreme case’.25 This becomes problematic in the female context when the decision of the New Zealand High Court (which was upheld by the Superior Courts and the Human Rights Committee) is examined. Here, the High Court noted that the alleged persecution that would be experienced as a result of climate change was ‘indiscriminate’,26 and as a consequence, could not fall within one of the five Convention grounds. In doing so, the Court did not acknowledge the particular vulnerabilities that marginalised people can experience as a result of climate change. Professor Chhaya Bhardwaj is correct to view this as ‘surprising’, given that refusal to allow the applicant to remain in New Zealand also affected his children,27 whose generation are, per the InterGovernmental Panel on Climate Change, more likely to be adversely affected by climate change.28
The problem with viewing climate change as indiscriminate is that it ignores the gender-sensitive nature of its impacts. Rising sea levels and depleting resources may appear to have disastrous consequences for all facets of society. However, for women, who are already at greater risk of persecution, it increases the likelihood of discriminatory factors being exacerbated. This can be seen in the work of the UNHCR, which has identified that women face a greater likelihood of sexual and gender-based violence in times of crisis and displacement.29 Similarly, there are racial dynamics at play within climate change, due to racial minorities experiencing what Dr Joel Kaufman calls ‘the inequity that drives health disparities in communities of colour’.30 These dynamics once again also have a disproportionate effect on women due to their own existing disadvantages based on gender.31 Hardy is correct to view this racial element to the climate response to be a product of ‘colourblind’ adaptation to the future effects of climate change.32 By ignoring structural inequalities and existing injustice, even the best state efforts to protect against climate change will do little to migrate the difficulties faced by marginalised communities. In the absence of an intersectional approach to the female refugee, it is difficult to see how it will be possible to illustrate the discriminatory element to climate change, when the UN Committee appears to regard it as a ‘general’ issue of harm.
The emphasis on human agency when considering persecution under the Convention also makes it difficult to ascertain how female climate refugees can be appropriately protected under the existing regime. The Committee asserted that, given the State still had the capacity to engage in ‘intervening acts’ before climate change devastated the island, it could not be concluded that the threat to life was imminent.33 Professor Simon Berhman points out that this leaves states in a dilemma.34 On the one hand, the State could act to mitigate climate change. However, this is likely to be broadly ineffective in light of the limited resources possessed by an individual state, particularly those who are already struggling with wider issues such as poverty and inequality. In doing so, the state condemns its population to a rejection of refugee claims under the Convention. On the other hand, the state could refuse to act to prevent the worst effects of climate change. This results in the eventual decimation of the state's resources, but raises the chances that its population can obtain refugee status. In either scenario, female members of the state are left the most disadvantaged.35 They are either likely to bear the brunt of the loss of resources as the state diverts its attention to climate change, or, as Balsari notes, experience the worst effects of the instability arising as a nation falls victim to environmental degradation.36 This is due to the traditional tendency for women to be more dependent on the natural resources of the land, due to the lack of broader economic opportunities within oppressive systems.37 It can also be attributed to the wider trend within political systems that leads women to be one of the first groups to experience additional discrimination when there is social and culutral tensions caused by a loss of resources.38
The intersectional consequences of the Teitiota approach to future climate refugees become even more apparent when they are examined in the context of the high threshold set by the Committee in order to demonstrate that there was a serious threat to life. For example, the applicant was obliged to demonstrate that ’the supply of fresh water [was] inaccessible, insufficient or unsafe’ and that he would be exposed to a ‘situation of indigence, deprivation of food, and extreme precarity’ in order to make a successful claim.39 However, as Professor McAdam argues, this threshold is too high where a range of rights are impacted by environmental degradation.40 In the female context, insufficient access to food and water could, as documented by researcher Marina Andrijevic, contribute to a rise in domestic violence due to the resulting tensions, or increase the likelihood of falling into poverty as patriarchal structures react to environmental challenges by removing economic opportunities from women.41 Thus, not only is there a serious threat to life, but broader rights to equality and liberty are also likely to be affected. However, the gender-blind attitude taken in Teitiota would make it difficult for courts to interpret similar cases in a manner that could account for these cumulative violations. This is particularly illustrated through the previous discussion in part I of how women are expected to paint themselves as male-centric victims in order to meet the requirements of the Convention.42 If the male applicant in Teitiota could not achieve a lowered threshold, it is unlikely that a woman would have better success, even if their rights are more likely to be more negatively affected by climate change.43
It is conceded that Justice Max Barrett is correct to praise the Teitiota decision for not precluding a future claim based on the effects of climate change.44 However, from a feminist perspective, the decison does little to ameliorate concerns that the Convention ignores intersectional attempts to understand female refugees.
Thus far, it has been identified that the Convention contributes to an anti-intersectional approach to the climate crisis that will render it virtually impossible to recognise the unique vulnerabilities experienced by female climate refugees. It must be acknowledged that ideal reforms, such as the inclusion of gender as a Convention ground and formal recognition of climate refugees would be impossible to achieve unless there is a significant shift in political willpower.45
One method of achieving more appropriate results for female climate refugees would be to broaden the interpretation of what can be construed as a political opinion. For example, Dr Honkala, argues that ‘women’s resistance to their gendered oppression should be recognized as evidencing women’s political agency in order to avoid depoliticizing their claim’.46 This would help to recognise female individuality as well as the broader intersection of oppression experienced by women. As a result, women who experience a rise in gender-based violence, due to political tensions caused by climate change would be more likely to meet the Convention nexus. More broadly, it would assist with an understanding of female individuality and how such individuality could be construed as ‘persecuted’, through the violation of rights that could occur as a result of climate change.
Secondly, it is important that the foundation built in Teitiota be expanded upon to recognise that climate change does not in fact act in an ‘indiscriminate’ manner. It would be helpful to adopt the suggestion of Professor McAdam that a ‘range’ of potential rights violations be examined when considering the impact of climate change.47 A cumulative approach, as opposed to the setting of a strict threshold, would also assist female refugees in meeting the harm element to the alleged threat posed by climate change. This approach could draw on the broader cultural and social dynamics that contribute to the disadvantage experienced by women in society. Thus, as Dr Olajumoke Haliso argues, women who are at particular risk of environmentally driven persecution, such as women of colour, could have this intersection recognised, albeit in a roundabout way, through this method of interpretation.48 While this solution is not perfect, it is perhaps the most feasible method of recognising intersectional concerns within the limited framework of the Convention, due to the avoidance of a political battle for wholescale reform.49
In conclusion, the Conventions failures in relation to gender are exacerbated by the inability to incorporate climate change into existing interpretations of female refugees. While the Teitiota decision contains some progressive elements, they are insufficient to create an intersectional, individualised approach to the Convention that would allow for adequate recognition of female climate refugees. It has thus been recommended that the political opinion ground of the Convention be interpreted in a manner that recognises the capacity for female individuality through their resistance to domestic norms. It has also been suggested that acknowledging that climate change is not indiscriminate when it comes to forced displacement is a necessary step forward to reforming the otherwise obsolete approach of the Convention. These reforms will not address all difficulties with forced environmental migration, but they are essential to a remodulation of the Convention for an intersectional and individualistic conception of the female climate refugee.
References
1 UNHCR, The Environment and Climate Change (2015).
2 Lama, ‘Gendered Dimensions Of Migration In Relation To Climate Change’ (2021) Journal of Climate and Development; Chindarkar, ‘Gender And Climate Change-Induced Migration: Proposing A Framework For Analysis’ (2012) Environmental Research Letters and Brockhaus, Is adaptation to climate change gender neutral? Lessons From Communities Dependent On Livestock And Forests In Northern Mali’ (2011) International Forestry Review.
3 Teitiota v New Zealand (2020) UN Human Rights Committee.
4 Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy 1950–2010’ (2010) Refugee Survey Quarterly.
5 [1999] UKHL 20.
6 Conneely, 'Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal and Another ex Parte Shah - Somewhere to Run to - Gender Persecution and Refugee Status' (1999) 11 Child & Fam L Q 321.
7 Honkala, ‘She, of Course, Holds No Political Opinions’: Gendered Political Opinion Ground in Women’s Forced Marriage Asylum Claims’ (2017) Social and Legal Studies.
8 Harvey, ‘Engendering Asylum Law: Feminism, Process and Practise’ in Whittle, Feminist Perspectives on Public Law (Cavendish 1999).
9 Smith, ‘Rethinking Gender In The International Refugee Regime’ (2016) Forced Migration Review.
10 Johnson, ‘Click To Donate: Visual Images, Constructing Victims And Imagining The Female Refugee’ (2011) Third World Quarterly.
11 Tvedt, ‘Accounting For Gender In International Refugee Law: A Close Reading Of The Unhcr Gender Guidelines And The Discursive Construction Of Gender As An Identity’ (MA Thesis University of San Francisco 2013).
12 New Zealand: Refugee Appeal No. 71427/99 Para 78.
13 Bosi, ‘Yadegar-Sargis v. INS: Unveiling the Discriminatory World of U.S. Asylum Laws: The Necessity to Recognize A Gender Category’ (2004) New York Law School Review.
14 Greatbatch, ‘The Gender Difference: Feminist Critiques of Refugee Discourse’ (1989) International Journal of Refugee Law.
15 Chan, ‘Everything in Moderation: Why Any Gender Nexus Under U.S. Asylum Law Must Be Strictly Limited in Scope’ (2011) Boston University International Law Journal.
16 Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics; (1989) University of Chicago Legal Forum.
17 Pijnenburg, ‘Moving Beyond Refugees And Migrants: Reconceptualising The Rights Of People On The Move’ (2021) International Journal of Postcolonial Studies.
18 Sultana, ‘Factors Influencing Migration Of Female Workers: A Case Of Bangladesh’ (2012) IZA Journal of Development and Migration.
19 Fehermann, ‘Women’s Gender-Based Violence as Grounds for Asylum Under the 1951 Refugee Convention and 1967 Protocol’ (MA Thesis Abo Akademi University 2021).
20 Goodwin-Gill and McAdam, The Refugee in International Law (4th Edn, Oxford University Press 2021) 644.
21 Desai, ‘Prevalence of Sexual Violence in Migrants, Applicants for International Protection, and Refugees in Europe: A Critical Interpretive Synthesis of the Evidence’ (2021) Environmental Policy and Law.
22 Lokot, ‘The Space Between Us: Feminist Values And Humanitarian Power Dynamics In Research With Refugees’ (2019) Gender and Development..
23 Teitiota v New Zealand (2020) UN Human Rights Committee.
24 ibid.
25 ibid 9.3.
26 Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125.
27 Bhardwaj, ‘Ioane Teitiota v New Zealand’ (2021) Environmental Law Review.
28 IPCC, Sixth Assessment Report (2022).
29 UNHCR, Sexual and Gender-Based Violence against Refugees, Returnees, and Internally Displaced Persons: Guidance for Prevention and Response (2003)
30 Kaufman, ‘Confronting Environmental Racism’ (2021) Environmental Health Perspective.
31 Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics; (1989) University of Chicago Legal Forum.
32 Hardy, ‘Racial coastal formation: The environmental injustice of colorblind adaptation planning for sea-level rise’ (2017) Geoforum.
33 Teitiota v New Zealand (2020) UN Human Rights Committee 9.12.
34 Berhman, ‘The Teitiota Case and the limitations of the human rights framework’ (2020) Questions of International Law.
35 ibid.
36 Balsari, ‘Climate Change, Migration, and Civil Strife’ (2020) Current Environmental Health Reports.
37 UN Environment Program, Women and Natural Resources Unlocking the Peacebuilding Potential (2013).
38 Blanton, Robert, Shannon Blanton, and Dursun Peksen. “The Gendered Consequences of Financial Crises: A Cross-National Analysis.” Politics & Gender 15, no. 4 (2019): 941–70.
39 Teitiota v New Zealand (2020) UN Human Rights Committee.
40 McAdam, ‘Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement’ (2020) American Journal of International Law.
41 Andrijevic, ‘Overcoming Gender Inequality For Climate Resilient Development’ (2020) Nature Communications.
42 Querton, ‘Gender And The Boundaries Of International Refugee Law: Beyond The Category Of ‘gender-Related Asylum Claims’’ (2019) Netherlands Quarterly of Human Rights.
43 Djoudi, ‘Beyond Dichotomies: Gender And Intersecting Inequalities In Climate Change Studies’ (2016) Ambio.
44 Barrett, ‘Climate Change Migration And The Views In Teitiota’ (2021) Irish Judicial Studies.
45 Zamore, ‘The Arc of Protection: Reforming the International Refugee Regime’ (2019) International Journal of Refugee Law.
46 Honkala, ‘She, of Course, Holds No Political Opinions’: Gendered Political Opinion Ground in Women’s Forced Marriage Asylum Claims’ (2017) Social and Legal Studies.
47 McAdam, ‘Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement’ (2020) American Journal of International Law.
48 Haliso, ‘Intersectionality and Durable Solutions for Refugee Women in Africa’ (2016) Journal of Peacebuilding and Development.
49 Bagaric, ‘Reforming The Approach To Political Opinion In The Refugees Convention’ (2020) Fordham International Law Journal.