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Affirmative Exclusion? Sex, Gender, Persecution and the Reformed Swedish Aliens Act

Folkelius, Kristina and Noll, Gregor LU (1998) In International Journal of Refugee Law 10(4). p.607-636
Abstract
The revised version of the Swedish Aliens Act contains a specific category providing protection for persons who fear persecution on account of their sex. Benefits afforded under this category, however, fall short of those under the 1951 Convention relating to the Status of Refugees or article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In order to evaluate this novelty, the following article explores the conceptual differences between sex and gender as well as the ensuing consequences for a discussion of legal protection. Closer analysis reveals that the newly introduced category suffers from a linguistic ambiguity as well as a systematic fallacy. Cases involving sex-related methods of... (More)
The revised version of the Swedish Aliens Act contains a specific category providing protection for persons who fear persecution on account of their sex. Benefits afforded under this category, however, fall short of those under the 1951 Convention relating to the Status of Refugees or article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In order to evaluate this novelty, the following article explores the conceptual differences between sex and gender as well as the ensuing consequences for a discussion of legal protection. Closer analysis reveals that the newly introduced category suffers from a linguistic ambiguity as well as a systematic fallacy. Cases involving sex-related methods of persecution could be regularly brought in under the 1951 Convention or prominent human rights instruments. As the 1951 Convention, on the one hand, and ECHR50 and CAT84, on the other, are mirrored in two Swedish protection categories, an additional provision simply serves no constructive purpose and must be regarded as superfluous. Finally, the authors explore whether the Swedish solution takes due account of legal norms proscribing discrimination. They conclude that equal enjoyment of asylum and protection is impaired by the inferior protection offered under the newly introduced category, when compared to other, more favourable categories. As the effects of the new category fall under the definition in article 1 CEDW79, its introduction in 1997 is to be interpreted as a breach of Sweden's obligations under article 2(a) CEDW79, namely, with respect to its duty to ensure through law the practical realisation of the principle of equality of men and women. It follows that Sweden is required to change the Aliens Act in an appropriate manner under article 2(f) CEDW79, providing for the modification or abolition of discriminatory legislation. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
human rights, refugee law, mänskliga rättigheter, flyktingrätt
in
International Journal of Refugee Law
volume
10
issue
4
pages
607 - 636
publisher
OUP
external identifiers
  • Scopus:0347669079
ISSN
0953-8186
language
English
LU publication?
yes
id
58a70d71-3b86-4aa6-abf5-908bf329a074
date added to LUP
2016-06-07 15:48:46
date last changed
2016-12-04 04:52:07
@misc{58a70d71-3b86-4aa6-abf5-908bf329a074,
  abstract     = {The revised version of the Swedish Aliens Act contains a specific category providing protection for persons who fear persecution on account of their sex. Benefits afforded under this category, however, fall short of those under the 1951 Convention relating to the Status of Refugees or article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In order to evaluate this novelty, the following article explores the conceptual differences between sex and gender as well as the ensuing consequences for a discussion of legal protection. Closer analysis reveals that the newly introduced category suffers from a linguistic ambiguity as well as a systematic fallacy. Cases involving sex-related methods of persecution could be regularly brought in under the 1951 Convention or prominent human rights instruments. As the 1951 Convention, on the one hand, and ECHR50 and CAT84, on the other, are mirrored in two Swedish protection categories, an additional provision simply serves no constructive purpose and must be regarded as superfluous. Finally, the authors explore whether the Swedish solution takes due account of legal norms proscribing discrimination. They conclude that equal enjoyment of asylum and protection is impaired by the inferior protection offered under the newly introduced category, when compared to other, more favourable categories. As the effects of the new category fall under the definition in article 1 CEDW79, its introduction in 1997 is to be interpreted as a breach of Sweden's obligations under article 2(a) CEDW79, namely, with respect to its duty to ensure through law the practical realisation of the principle of equality of men and women. It follows that Sweden is required to change the Aliens Act in an appropriate manner under article 2(f) CEDW79, providing for the modification or abolition of discriminatory legislation.},
  author       = {Folkelius, Kristina and Noll, Gregor},
  issn         = {0953-8186},
  keyword      = {human rights,refugee law,mänskliga rättigheter,flyktingrätt},
  language     = {eng},
  number       = {4},
  pages        = {607--636},
  publisher    = {ARRAY(0x996b350)},
  series       = {International Journal of Refugee Law},
  title        = {Affirmative Exclusion? Sex, Gender, Persecution and the Reformed Swedish Aliens Act},
  volume       = {10},
  year         = {1998},
}