Constitutionalizing Protection for Refugee Women and Girls in South Asia

Abstract

The South Asian region remains an epicentre of forced migration. Women comprise about half the region’s refugee population, and many are traumatized by sexual and gender-based violence (SGBV) experienced in their countries of origin and during flight. The 1951 Refugee Convention is not well ratified in the region and few States have developed domestic asylum laws, relying instead on ad hoc policies, core rule of law principles, and constitutional provisions to facilitate refugees’ access to essential legal protections. Many refugees in South Asia do not have a clear legal status, which can exacerbate rights violations, including SGBV. Over the years, through judicial activism, courts have developed a layered refugee law jurisprudence relying on criminal justice principles, executive orders, corresponding laws, and key international human rights treaties. These efforts have been complemented by the evolution of several formal and informal systems at the grassroots level, such as community-based dispute resolution mechanisms and State-run legal aid services, which have allowed refugee women and girls to access justice systems and seek redress. This article examines the legal strategies adopted by courts in Bangladesh, Pakistan, and India to uphold the rights of refugee women and girls and to protect survivors of SGBV, in particular.