INFORMATION
UN Security Council Resolution 1325 (2000) on women, peace and security calls upon ‘all parties to armed conflict to respect the civilian and humanitarian character of refugee camps and settlements, and to consider the particular needs of women and girls, including in their design.’ However, in determining the gendered needs of women and girls, it is important that those within refugee camps are not treated as lacking agency.
Meaningful participation is a pillar of WPS; it should continue to be applicable within such camps. Accordingly, refugee women must be accorded participation and representation in the decision-making processes leading to the design and implementation of all camp policies, including those relating to the delivery and distribution of services and measures for prevention of and protection against violence.
As with all other persons, refugees are entitled to an adequate standard of living. This includes adequate food and housing, as well as physical and mental health. Refugees who have fled conflict frequently arrive in the host country traumatized and in need of medical treatment. Women and children have particular health and security needs and may suffer gender-specific, adverse health consequences if these are not addressed. They are also very vulnerable to exploitation and violence whilst living in refugee camps.
The life of a refugee is typically characterized by dependency ‘on others for such basic needs as food, clothing and shelter’. Refugees’ confinement to camps may, in itself, have implications for their socio-economic rights (ESC rights). For example, where camps are located in remote and/or poor areas of the country of refuge, access to wage earning employment may be limited. Worse still are situations in which refugees’ rights of free movement to and from the camp are restricted, as is the case for inhabitants of the Dadaab camp in Kenya. Refugee women, in particular, have few economic opportunities to build their livelihoods; their earning options are often limited to low-paid and low-skilled informal work, whilst they also bear the responsibility for unpaid family labour. This dire socio-economic context increases the risk that refugee women might engage in transactional sex to support themselves and their families. Lack of security or social restrictions on the movement of unaccompanied women may cause refugee women to confine themselves to their tents.
International legal instruments
Prima facie, the 1951 Refugee Convention is limited in protecting the ESC rights of refugees. First, the Convention only applies to those countries which are States Parties (either to the 1951 Convention or the 1967 Protocol). Secondly, it does not refer to certain ESC rights, such as an adequate standard of living or physical and mental health. Lastly, refugees may only be able to access entitlements under the Convention when the domestic authorities have formally recognised them as refugees.
International human rights law provides a more comprehensive protection regime for all people in refugee camps, encompassing civil, political and ESC rights. In particular, some of the core rights enumerated in the ICESCR (including, for example, the right to water, food, shelter and health) take on added significance for those who have been forcibly displaced. These rights are particularly pertinent to refugee women, who usually take on additional obligations of providing for other vulnerable family members, including the young and the elderly. The core of a rights-based approach to refugee assistance is the ‘identification of a certain standard of treatment to which an individual refugee is entitled’.
Before elaborating on the relevant standards pertaining to ESC rights of non-citizen refugee women and girls, two preliminary clarifications are made regarding the general principles of ICESCR interpretation. The first relates to the concept of “progressive realization”; the second to the concept of a “minimum core” of obligations.
Concept of progressive realization
Progressive realization should be interpreted such that it captures a “pattern of improvement” which obliges States to ensure a broader enjoyment of ESC rights over time. The ESCR Committee has emphasized that steps taken by States to fully realize ESC rights ‘should be deliberate, concrete and targeted as clearly as possible’ towards meeting their obligations to respect, protect and fulfill the rights set out in the ICESCR. While States enjoy a margin of discretion in selecting the means that are available for implementing their obligations, the burden remains on the State to demonstrate that measurable progress is being made towards the full realization of rights. In addition, States cannot deliberately pursue retrogressive measures.
In addition, the concept of progressive realization mandates that a States Party also comply with certain obligations which are independent of the level of resources available to it. These obligations include non-discrimination and equality in the delivery of social services (reaffirmed in Article 3 of the CEDAW) and the efficient use of available resources. Concretely, the international prohibition on discrimination requires States to ‘improve the de facto position of women through concrete and effective policies and programmes’, including in the context of the refugee camp.
Minimum core obligations
The concept of a “minimum core” of obligations is a doctrinal advance on the ICESCR. It may be distinguished from progressive realization by the higher standards to which States are held. The minimum core is the baseline of the obligation to progressively realize rights: the identification of certain essential obligations helps to ensure that States provide people with the basic conditions under which they can live with dignity. This, in turn, provides a “bottom line” for State responsibility.
The primary international sources for the doctrine of minimum core obligations are the General Recommendations and Comments issued by various treaty bodies, such as the ESCR Committee. Such Recommendations and Comments, whilst not legally binding, are highly persuasive. According to the ESCR Committee, the minimum core of the main economic, social, and cultural rights has become customary international law and is therefore binding on all States, regardless of whether they have signed or ratified treaties protecting those rights.
