This article is the winner of Feminist Law's first ever essay competition.
Introduction
The Convention Relating to the Status of Refugees, also known as The 1951 Refugee
Convention, is the primary source of legal protection for all Refugees. But where women are
concerned, their specific needs still need to be addressed. The Article 1 definition of a refugee does not include gender as grounds for persecution, despite 50% [1] of the refugee population being women. Furthermore, 1 in 5 refugee women [2] are victims of sexual violence. Yet, there is no mention of this area in the Convention. So how can women fleeing violence inherent to their gender seek protection under The Refugee Convention?
Fortunately, The Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW), exists, providing refugee women a potential recourse to securing their
rights. However, due to its own shortcomings, it can be argued that the CEDAW only offers
protection to an extent.
By focusing on sexual violence, an issue that is common for many women refugees, this
essay will explore the extent to which CEDAW can support women in asserting their rights
and protecting them from gender-based violence. It will be shown that CEDAW,
unfortunately, only provides limited recourse and is repeatedly a victim of its own failure.
This is evidenced by an analysis of The Convention itself, General Recommendation 35, and
The Committee.
Crucially, I argue that the primary reason behind why this is the case is because International
Law treats issues of women as subordinate. Gender-based Violence is used as an example to
show how constant minimisation, and in the context of refugees, negligence to consider the
different experiences of women, leads to policies which fail to protect women adequately.
Convention on the Elimination of All Forms of Discrimination Against Women
At the outset, there are no express provisions governing sexual and gender-based violence
(GBV) in the context of Refugee Women in CEDAW. Perhaps this may be attributed to the
fact that during CEDAW’s formation, GBV remained largely unrecognised [3] in International
Law.
Firstly, the instrument itself is weakly implemented, [4] compared to other Conventions
governing protection. For example, the USA is yet to ratify The Women’s Convention, [5] evidencing the lack of concrete enforcement and commitment to ensuring women’s rights
generally. CEDAW should be more pressing in pushing for the critical recognition and
respect of eliminating discrimination towards women.
Additionally, the failure of other instruments, like The Refugee Convention and The Torture
Convention, to specifically address gender-based violence [6] may stem from the idea that since CEDAW exists, it is preferable to leave such issues for the latter to handle. Whilst this
reflects negatively on International Law for neglecting to recognise more specific issues
relating to women within the sphere of their rules, it also creates more pressure for CEDAW
to be comprehensive in its protection of refugee women against GBV. And yet, it’s not
comprehensive or practical at all.
As previously mentioned, the first pitfall of CEDAW is its failure to address GBV directly in
its text, [7] in turn, failing to protect both women and refugee women at risk of it. Instead, it
provides options for redress by reinterpreting the treaty itself to see such violence as an issue of discrimination, which it is, but only to an extent. This means that GBV remains
unaddressed in all international treaties because other conventions remain silent.
Unfortunately, such a dynamic exists, but ultimately this problem exists primarily because of
CEDAW’s negligence to address gender-based violence to begin with.
Furthermore, CEDAW does little to attack the roots of feminist issues and fails to ‘challenge
structural inequalities and power imbalances’ [8] which perpetuate inequality and in turn, reflect in the discrimination and mistreatment of women. It pays too much focus on equal treatment for example, and fails to dig deeper into how women are subordinated purely because of their gender. [9]
CEDAW has also been repeatedly criticised for observing women’s issues through the male
lenses, [10] naturally leading it to, at times, inappropriately account for the unique and distinct experience of women, and creating ‘gender-neutral’ [11] rules, which disadvantage women. This again forces women to recognise their plights in relation to men, completely ignoring their differing circumstances on account of gender.
Ultimately, the failure of CEDAW to explicitly prescribe rules relating to gender-based
violence, not just for refugee women, but women more broadly, within the text of its treaties,
is a grave omission.
Nevertheless, many of its General Recommendations, and briefings from its Committee have
sought solutions to the problem. [12] The strength of these solutions is minimal, but they reflect a somewhat positive attempt to at the very least address the issue of GBV towards Refugee Women.
General Recommendation 32
General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, is the first to address the plights of refugee women more broadly. It addresses the issue of GBV amongst refugee women; for example, it equates responsibility to all state parties, [13] and evidences more specifically how GBV can manifest through practices like FGM or domestic violence and sexual abuse, [14] and finally it notably calls upon states to be more gender-sensitive in their arrangements. General Recommendation 32 shows a step in the right direction, but it can still be significantly developed.
General Recommendation 35
General recommendation No. 35 (2017) on gender-based violence against women, updating
general recommendation No. 19 (1992), is one of the critical sources of law addressing GBV
for women more broadly. It gives GR 19 a much-needed improvement to ensure it reflects the modern day. This evidences a commitment towards the advancement of women's rights with respect to protection from GBV, additionally providing refugee women with a potential form of recourse.
Firstly, GR 35 builds on GR 19 by containing a more refined term for addressing the causes
of GBV, pinning it as violence specifically to women, [15] creating a distinction from violence
more generally. It also looks at the effect of gender-based violence, to provide a picture of
why protection and intervention from the law are essential.
GR 35 builds on GR 19 by giving best-practice guidance on how women can use the
CEDAW itself to enforce their rights of protection against GBV in the domestic sphere. It
goes in more depth to address how Article 1 [16] [of the convention] inherently has an obligation for protection against such discrimination and theorises how this manifests. This goes beyond merely recognising the issue in advisory comments, and it shows how law can be used for enforcement and to create concrete results.
General Recommendation 35 importantly highlights that ‘gender-based violence against
women is one of the fundamental social, political and economic means by which the
subordinate position of women with respect to men and their stereotyped roles are
perpetuated.’ [17] This subordinate position is the premise upon which CEDAW is built, which can show that in neglecting their obligations to protect women from GBV, states are also neglecting their primary obligations under CEDAW. It does not, however, refer to specific situations where women may be vulnerable to GBV, such as women seeking refuge.
Additionally, GR 35 provides good detail on what it expects states [18] to do regarding their
obligations under CEDAW where GBV is concerned, and it adopts a victim-centred
approach. Such an approach is best suited to dealing with GBV, and produces solutions for
those vulnerable to the problem.
This evidences that, potentially to an extent, General Recommendations 32 and 35 can
provide redress for refugee women who are victims of GBV and can hold states accountable
for increasing their standards of protection.
Unfortunately, the nature of General Recommendations is that they are merely advisory
recommendations. They are seen as soft norms and principles with more of an aspirational
goal because they are not binding. This non-binding nature denotes their worth and limits
their potential to achieve great success in advancing both women's and refugee women’s
rights. Although being a source of Customary International law, they may hold some worth
on the International stage, but again, that too is limited and can easily be overridden by other powers.
Finally, whilst it can be counter argued that many of these recommendations suggest ways to apply the convention itself, this practice holds limited value. The problem of CEDAW’s
failure to mention GBV against both women and refugee women in the letter of its text means that, in practice, it is difficult to ‘indirectly’ apply the Convention. It is difficult to draw the link between such detailed expectations when no express provision governs them.
Ultimately, The Convention on the Elimination of All Forms of Discrimination Against
Women is in desperate need of a provision relating to the protection of women against GBV,
which can in turn, be applied in the refugee context.
The Committee on the Elimination of Discrimination against Women
The Committee on the Elimination of Discrimination against Women was established to
monitor the progress and implementation of CEDAW. It is primarily their meetings and work
that form the previously mentioned General Recommendations and standards expected in
accordance with CEDAW.
It is my view that, in practice, the Committee does a great disservice to the rights of
protection against GBV.
Firstly, in its General Recommendations, the Committee has often been criticised for failing
to expand and provide comments in more depth. [19] This makes it hard to identify specific
obligations and what they would entail, in turn, making it difficult for states to act on this,
and adhere to the expectations of CEDAW. A similar case arises for identifying breaches.
Secondly, Catherine Briddick notes that on multiple occasions, the Committee has afforded
states a large margin of appreciation when deciding the cases of refugee women fleeing
sexual and gender-based violence, in its Individual Communications where it receives
complaints. [20] Her findings were that the Committee often agreed with states ‘without examining whether or not their procedures comply with the standards set in GR 32,’ [21]
revealing an unfortunate inclination to perhaps side with perpetrators and not victims.
How does Feminist Legal Theory explain this Legal Gap?
Women are not afforded their own space in the Refugee Convention, [22] which is one of the
inspirations behind this essay. Whilst the purpose of this paper is to identify the extent to
which CEDAW can instead be used for securing rights, ultimately, the failure of the leading
International Instrument for refugees to account for the specific experiences of women, is
primarily responsible for why other International Laws are not comprehensive in this area.
Amongst the International community, this sets a negative tone, placing women’s rights lower down in the hierarchy of importance, in comparison to other priorities listed in The 1951 Refugee Convention. Or, instead, it groups women's rights with men’s. For example, the Convention is said to be gender-neutral, but it is often written in a way that disadvantages women, by failing to consider how specific rules negatively impact them in comparison to men. [23]
Perhaps Feminist Legal theory can illuminate why this is the case. In International Law,
issues relating to women have consistently found themselves minimised and ignored.
Previously, it was rejected that the feminine voice was needed in International Law, and the
third-world [24] perspective was considered sufficient to represent women. This approach failed to recognise women's issues as being solely based on gender and separate from those of the developing states. Additionally, this approach evidences a view of seeing both women and developing countries as combined weaker and inferior voices in comparison to those of Western males. Such an approach also ignores intersectional feminism [25] ideas and how all women have different experiences of rights because of their differences in backgrounds and races.
Additionally, this reflects the ‘glass-ceiling’ [26] theory in feminism, where women can see, but cannot access their potential. By referring to the glass ceiling, I argue that International Law has recognised the plight of refugee women and their risk of sexual and gender-based
violence, but it has done little to solve the problem. We can see what needs to be done, but
since women themselves remain, arguably, secondary subjects [27] and priorities of International Law, in the face of other, more ‘public’ matters, their needs remain trapped behind a glass ceiling, where significant action must be taken to break through it.
The issues in international law itself relating to the position of women reflect how
International Law serves women. This essay has shown how this manifests to disadvantage,
degrade, and, in turn, endanger women, and thus contributes to why many refugee women
find themselves with little protection or justice from acts of gender-based violence.
Conclusion
In conclusion, this essay has found that CEDAW can only, to a limited extent, act as a source
of recourse for refugee women to secure their rights of protection against sexual and gender-based violence. It makes attempts to recognise barriers for women and failures of states but weakly enforces rules and laws, unfortunately reflecting a lack of commitment to protecting refugee women from GBV. This is reflective of an International attitude to afford less importance to issues relating to women; the underlying purpose of this essay is to show how this manifests in specific situations and emphasise the dire need for development in
International Law to make space for women and the unique experiences and challenges they
face.
[1] Women For Women International, ‘5 facts about what refugee women face’ (Women For Women International, 5 June 2023) <https://womenforwomen.org.uk/blog/5-facts-about-what-refugee-women-face> accessed 5 December 2023.
[2] Ibid.
[3] Ronagh J.A. McQuigg, ‘The cedaw Committee and Gender-Based Violence against Women’ [2017] 6(2) International Human Rights Law Review 263, 264 <https://brill.com/view/journals/hrlr/6/2/articlep263_263.xml> accessed 5 December 2023.
[4] Hilary Charlesworth, Christine Chinkin, Shelley Wright, ‘Feminist Approaches to International Law’ [1991] 85(4) The American Journal of International Law 613, 632 <https://www.jstor.org/stable/2203269?seq=20> accessed 5 December 2023.
[5] Rangita De Silva De Alwis and Ambassador Melanne Verveer, ‘“Time Is A-Wasting”: Making the Case for CEDAW Ratification by the United States’ (Columbia Journal of Transnational Law, 20 December 2021) <https://www.jtl.columbia.edu/volume-60/time-is-a-wasting-making-the-case-for-cedaw-ratification-by-theunited-states> accessed 5 December 2023.
[6] (n4) at p632.
[7] Khadiza Nasrin, ‘The Approach of CEDAW towards Violence against Women: A Feminist Legal Assessment’ [2019] 3 Jahangirnagar University Journal of Law 89,89 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3833843> accessed 5 December 2023.
[8] Ibid at p97.
[9] Ibid.
[10] (n7) at p98.
[11] Catherine Briddick, ‘Unprincipled and unrealised: CEDAW and discrimination experienced in the context of migration control’ [2022] 22(3) International Journal of Discrimination and the Law 224, 227 <https://journals.sagepub.com/doi/full/10.1177/13582291221114082> accessed 5 December 2023.
[12] (n3).
[13] UN Committee on the Elimination of Discrimination Against Women (CEDAW), General Recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, 5 November 2014, CEDAW/C/GC/32, at [para 7] available at https://www.refworld.org/docid/54620fb54.html [accessed 5 December 2023].
[14] Ibid at [para15].
[15] (n3) at p266.
[16] UN Committee on the Elimination of Discrimination Against Women (CEDAW), General Recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19 (1992), 26 July 2017, CEDAW/C/GC/35 at [para 21] available at https://documents-ddsny.un.org/doc/UNDOC/GEN/N17/231/54/PDF/N1723154.pdf?OpenElement [accessed 5 December 2023].
[17] Ibid at [para 10].
[18] Ibid at [para 28].
[19] (n11) at p228.
[20] (n11) at p226.
[21] (n11) at p230.
[22] Catherine Briddick, ‘When Does Migration Law Discriminate Against Women?’ [2021] AJIL Unbound 356, 357 <https://www.cambridge.org/core/journals/american-journal-of-international-law/article/when-doesmigration-law-discriminate-against-women/743ACF142C9D9276C331424A2A466372> accessed 5 December
2023.
[23] Ibid at p359.
[24] (n4) at p616.
[25] Sué González Hauck, ‘Intersectional feminist engagements with international law (Part I)
An interview with Emilia Roig’ (Völkerrechtsblog, 14 January 2020 <https://voelkerrechtsblog.org/intersectional-feminist-engagements-with-internationallaw/#:~:text=An%20intersectional%20approach%20requires%20that,%2C%20institutional%2C%20and%20historical%20level> accessed 5 December 2023.
[26] Mileno Sterio, ‘Where Are the Women? Breaking International Law’s Glass Ceiling’ (INTLAWGRRLS, 14 November 2021) <https://ilg2.org/2021/11/14/where-are-the-women-breaking-international-laws-glass-ceiling/> accessed 5 December 2023.
[27] (n4) at p614.