Feministische Herausforderungen an das Flüchtlingsrecht: von der zweiten zur dritten Welle

Der Beitrag wirft einen feministischen Blick auf das Flüchtlingsrecht. Der zunächst für den klassischen politischen - und männlichen - Dissidenten entworfene Flüchtlingsbegriff hat in den vergangenen Jahren eine tiefgreifende Transformation erfahren, die sich gut mit der zentralen These der zweiten Welle des Feminismus greifen lässt: Das Private ist politisch. Die Aufweichung zwischen öffentlichem und privatem Bereich führte zu einem grundlegenden Wandel, der es ermöglichte, dass bestimmte geschlechtsspezifische Verfolgungssituationen ebenfalls von der Definition erfasst werden können. Nach diesem großen Erfolg hat das feministische Engagement mit dem Flüchtlingsrecht aber stark nachgelassen. Der Beitrag arbeitet fortbestehende Herausforderungen heraus und zeigt auf, dass auch die dritte Welle des Feminismus wichtige Lehren zur Weiterentwicklung des Flüchtlingsrechts bereithält.The article takes a feminist look at refugee law. The refugee concept, which was originally designed for classic political - and male - dissidents, has undergone a profound transformation in recent years. These changes are neatly reflected in the central claim of second-wave feminism: the personal is political. The closing of the public/private di- vide has led to a fundamental change, such that the definition of "refugee" is now understood to cover gender-related persecution. Following this great success, however, feminist engagement with refugee law diminished considerably. The article elaborates on remaining challenges and shows that thirdwave feminism also has some important lessons for the further development of refugee law

The concealment controversy : sexual orientation, 'discretion' reasoning and the scope of refugee protection

University of Technology Sydney. Faculty of Law.The study explores the concealment controversy in refugee law. Though repeatedly discarded both by courts and refugee law scholars, the idea that a claim for international protection can be rejected on the basis that the claimant behave ‘discreetly’ (‘discretion’ reasoning) in their country of origin, has been haunting asylum claims based on sexual orientation, and to a lesser extent other grounds of claim, for a long time. The central puzzle that the study addresses is the resilience of this phenomenon. Employing a mixed methods approach, the study critically examines the phenomenon of ‘discretion reasoning’ on different levels and from different angles. The theoretical framework is drawn from queer theory and discourse analysis. Building on Michel Foucault, Eve Kosofsky Sedgwick and Janet Halley, an act/identity dichotomy serves as the lens through which the doctrinal construction of ‘discretion’ reasoning is scrutinised. This approach is capable of reaching beyond sexuality-based claims to encompass claims based on religion and political opinion, because the persecutory environment is understood to create a situation analogous to the closet, in which ‘discretion’ and disclosure become highly sensitive. Based on these theoretical underpinnings, the thesis proceeds in two parts. Part I is dedicated to a detailed analysis of sexuality-based asylum claims from the European civil law jurisdictions Germany, France and Spain, both before and after three European high-level judgments rejected the ‘discretion’ requirement. Part II turns the analysis around: Rather than looking for instances of ‘discretion’ reasoning, it undertakes a doctrinal analysis of the ways in which ‘discretion’ logics emerge from the different approaches to conceptualising the Convention grounds, both in the jurisdictions under review and in the common law jurisdictions, as well as in international refugee law doctrine more broadly. The thesis reveals that ‘discretion’ reasoning is not limited to any particular jurisdictions or doctrinal framework, but emerges in all jurisdictions under study, hidden in all types of reasoning that operate on the assumption that the claimant is able to manage and avoid persecution by refraining from expressing the protected characteristic. The thesis concludes that ‘discretion’ reasoning is the site where the scope of refugee protection is negotiated. This scope is caught in the paradox that is created by two widely held but competing principles of refugee law: Firstly the notion that claimants cannot be required to hide the characteristic they are persecuted for, and secondly the principle that the purpose of refugee protection is to protect from serious harm, not to provide full human rights protection. ‘Discretion’ is the response to this tension – it simultaneously stabilises and destablises refugee protection

Reviewing the reviews: the Global Compacts' added value in access to asylum procedures and immigration detention

The Global Compact for Migration and the Global Compact on Refugees are based on binding international law instruments whose provisions they complement with “best practice” standards related to the treatment of refugees and other migrants. Although the Compacts are non-binding, they provide for review mechanisms to promote compliance with Compact standards. Such oversight is important to achieve progress in implementing the Compacts' commitments. Yet, the current top-down and State-led review process does not offer an efficient platform for identifying cases of non-adherence to Compact standards. This article uses a case study approach to highlight instances of non-compliance with Compact standards in Canada, South Africa, and the European Union. We use a functionalist method of comparison to analyze State practice in these three regions in relation to (i) use of immigration detention and (ii) access to the asylum procedure, with access to healthcare as a cross-cutting issue. The article discusses how the Compacts' review mechanisms could be improved and their added value in terms of their impact on domestic migration policies. It argues that both Compact review and implementation can be improved through increased civil society participation.Peer Reviewe

Reviewing the reviews: the Global Compacts' added value in access to asylum procedures and immigration detention

The Global Compact for Migration and the Global Compact on Refugees are based on binding international law instruments whose provisions they complement with “best practice” standards related to the treatment of refugees and other migrants. Although the Compacts are non-binding, they provide for review mechanisms to promote compliance with Compact standards. Such oversight is important to achieve progress in implementing the Compacts' commitments. Yet, the current top-down and State-led review process does not offer an efficient platform for identifying cases of non-adherence to Compact standards. This article uses a case study approach to highlight instances of non-compliance with Compact standards in Canada, South Africa, and the European Union. We use a functionalist method of comparison to analyze State practice in these three regions in relation to (i) use of immigration detention and (ii) access to the asylum procedure, with access to healthcare as a cross-cutting issue. The article discusses how the Compacts' review mechanisms could be improved and their added value in terms of their impact on domestic migration policies. It argues that both Compact review and implementation can be improved through increased civil society participation

Search for dark matter produced in association with bottom or top quarks in √s = 13 TeV pp collisions with the ATLAS detector

A search for weakly interacting massive particle dark matter produced in association with bottom or top quarks is presented. Final states containing third-generation quarks and miss- ing transverse momentum are considered. The analysis uses 36.1 fb−1 of proton–proton collision data recorded by the ATLAS experiment at √s = 13 TeV in 2015 and 2016. No significant excess of events above the estimated backgrounds is observed. The results are in- terpreted in the framework of simplified models of spin-0 dark-matter mediators. For colour- neutral spin-0 mediators produced in association with top quarks and decaying into a pair of dark-matter particles, mediator masses below 50 GeV are excluded assuming a dark-matter candidate mass of 1 GeV and unitary couplings. For scalar and pseudoscalar mediators produced in association with bottom quarks, the search sets limits on the production cross- section of 300 times the predicted rate for mediators with masses between 10 and 50 GeV and assuming a dark-matter mass of 1 GeV and unitary coupling. Constraints on colour- charged scalar simplified models are also presented. Assuming a dark-matter particle mass of 35 GeV, mediator particles with mass below 1.1 TeV are excluded for couplings yielding a dark-matter relic density consistent with measurements