The following is an edited version of Madeline Gleeson’s remarks at the Refugee Law Initiative’s 7th Annual Conference, ‘Inequality and Fairness in Refugee Protection’, on 22 June 2023.
It is a pleasure to be here today to present the findings of my research into the asylum jurisprudence of the Committee on the Elimination of Discrimination against Women (‘Committee’).
I came to this topic by accident as part of my other work on jurisdiction and the extraterritorial scope of human rights treaty obligations in the migration context. As part of that work, I came across some Views of the Committee which needed to be put in context, but after a quick search of the usual texts and literature, I found little scholarship on the Committee’s Views under its individual complaints mechanism with respect to women seeking asylum.
Like all of us, I was well aware of the shortcomings of international refugee and human rights law in meeting the needs of and achieving equality for displaced women. So, I was surprised at how little academic engagement there had been with the asylum jurisprudence of this Committee, given it is the UN treaty body tasked with overseeing respect for women’s rights at the international level under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
With the notable exception of Dr Catherine Briddick, and some smaller interventions from other scholars, the potential normative significance of these cases has been overlooked. And so, I embarked on a study of the published Views of the Committee in cases involving asylum seeker women.
The results are both remarkable and important.
I started with a broad search of the Office of the High Commissioner for Human Rights’ jurisprudence database, which produced around 140 cases decided by the Committee since 2006. I then supplemented these findings with additional targeted searches online, using the chronological numbering of individual complaints to fill in some of the gaps in the jurisprudence database.
After excluding any cases which were discontinued, my searches produced a set of 36 Views involving women seeking asylum, all of which were closely analysed.
As you can see from the chart below, more than 80% of these communications were ruled inadmissible, and only 5% – or two cases – succeeded on the merits. But all of these Views were analysed and were valuable in gaining a holistic view of the full corpus of the Committee’s asylum jurisprudence.
Almost all the complaints involved Denmark as the respondent State, with smaller numbers of complaints communicated against Canada, Switzerland, the Netherlands and the UK.
There was a recent peak in asylum decision making between 2016 and 2018, after which there has been a bit of a drop-off. But the Committee’s pending case list does indicate that a number of asylum cases are due to be decided in coming sessions.
The most striking finding was that there has been a shift in the Committee’s approach to asylum cases depending on when they were decided.
Overall, two broad ‘phases’ can be identified. The first comprises 13 cases decided by the Committee between 2007 and 2015, while the second comprises 23 asylum cases decided between 2016 and 2022.
‘Phase one’ of the Committee’s asylum jurisprudence
The Committee’s jurisprudence in the first phase of its asylum work is not completely immune to criticism, and it is worth nothing that only one of thirteen cases succeeded on its merits. However, overall, the Committee in this phase sought to engage in progressive and principled normative development of CEDAW obligations.
Crucially, in M.N.N. v Denmark, in July 2013, it read an implied non-refoulement obligation into Article 2(d) of CEDAW, which requires States parties ‘to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions … act in conformity with this obligation’.
According to the Committee, this positive duty prevents States from returning women to ‘a real, personal and foreseeable risk of serious forms of gender-based violence’, and provides that ‘if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention’ (para. 8.10).
This finding is particularly significant for the States which are parties to CEDAW but not to other treaties such as the 1951 Refugee Convention and its Protocol, the International Covenant on Civil and Political Rights, and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
But it is also significant for all CEDAW States parties, as it potentially extends the scope of a State’s duty of non-return beyond the traditional grounds for non-refoulement, in a way which centres the specific types of harm which disproportionately affect women.
Unsurprisingly, perhaps, the respondent States – Denmark and Canada in particular – resisted the expansion of their non-refoulement obligations beyond the ‘exceptional circumstances’ of arbitrary deprivation of life, and torture or ill-treatment, removal to which was already prohibited by other human rights instruments.
But in subsequent cases and in General Recommendation No. 32, in 2014, the Committee pushed back.
It insisted that CEDAW establishes an independent obligation not to remove women to real, personal and foreseeable risks of serious forms of discrimination against women, and specifically that (according to UN Committee on the Elimination of Discrimination Against Women, General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women (UN Doc. CEDAW/C/GC/32, 5 November 2014) para. 23):
States parties have an obligation to ensure that no woman will be expelled or returned to another State where her life, physical integrity, liberty and security of person would be threatened, or where she would risk suffering serious forms of discrimination, including serious forms of gender-based persecution or gender-based violence.
The precise contours of the CEDAW non-refoulement obligation were yet to be settled at this stage, and continue to be underexplored to this day. However, the reading of this obligation into the Convention was a significant normative development, and the Committee did seek to clarify its scope by affirming that it extends to return to harm by non-State actors, and that women do not always need to show that they tried to seek State protection before fleeing.
Also in this phase, the Committee affirmed that a ‘gender-sensitive approach’ must be adopted at all stages of the asylum process, and it began to elaborate on what such an approach requires.
‘Phase two’ of the Committee’s asylum jurisprudence
Phase two of the Committee’s asylum work was radically different. From 2016 onwards, the Committee’s Views evidence an excessive deference to national asylum decision-making.
Critically, the Committee failed to identify or clarify apparent discrimination in credibility assessments being conducted by national asylum authorities. The cases in this phase contain examples of women’s accounts of gender-based violence (GBV) being deemed not credible because of:
• a failure to disclose GBV immediately upon arrival in the host State;
• some aspect of their manner or demeanour while disclosing GBV;
• assumptions about how women would or should act after experiencing GBV; and
• assumptions about how male perpetrators of GBV would act.
There are also cases in which women were deemed not credible due to minor, tangential or explicable inconsistencies in their evidence, even when their testimony of abuse was otherwise consistent and credible.
In this phase, the Committee also failed to identify or clarify possible misapplications or misinterpretations of CEDAW, including in relation to:
• the assessment of women’s asylum claims through the lens of male experiences;
• the placing of an evidentiary burden on women to prove the identity and motivations of their abusers; and
• conclusions that State and/or non-State protection against GBV would be available in another country.
Comparing the cases of R.S.A.A. and K.I.A.
One case does stand out from the others in the second phase of the Committee’s asylum work as an example of good practice, and that is the case of R.S.A.A. v Denmark, which was decided in July 2019.
To illustrate the incongruity of this case with others, and to demonstrate some of the deficiencies in Committee reasoning in other cases, it is helpful to compare R.S.A.A. alongside K.I.A. v Denmark, which was decided just four months later in November 2019.
The facts and law in these cases were comparable.
The author in K.I.A. was a Palestinian refugee and Jordanian national living in Jordan who had been forced as a child into a marriage with a 47-year-old man ‘as an honour-related sanction for not following traditional family norms’, and claimed to be a victim of serious domestic violence by her husband against her and her children, describing her marriage as ‘characterized by repeated domestic violence, rape and controlling and degrading treatment’. She lied to her husband about her reasons for travelling to Denmark with their children and once there she sought asylum, claiming she would be subject to domestic abuse, degrading treatment and risk losing custody of her children if returned to Jordan.
R.S.A.A., the only case in the second phase of the Committee’s asylum work in which it found a violation of CEDAW, involved broadly the same facts, with the author in that case claiming that she and her daughters had been exposed to threats, violence, abuse and degrading treatment by her husband, which had escalated after she opposed the forced marriage of one of her daughters to an older man, to the point where she was ‘beaten up and tortured’ by her husband.
Both women emphasized their particular vulnerability as Palestinian women in Jordan, and challenged Denmark’s claims that they were ‘entitled … to the same protection as all Jordanians’ and could ‘rely on the same rights as other Jordanian nationals’ with respect to protection against domestic violence by the Jordanian authorities.
Denmark made adverse credibility findings against both women. It ruled that K.I.A.’s ‘statements on the intensity and scope of the violence and sexual abuse in her marriage could not be considered as facts’ because they ‘appeared to be inconsistent and increasingly elaborate on a number of essential points’. Denmark also ruled R.S.A.A.’s domestic violence testimony ‘inconsistent’, ‘non-credible’ and ‘fabricated for the occasion’, noting that she had omitted important information at various stages of the proceedings both in Denmark and before the Committee.
Having determined that the authors’ domestic violence testimonies were not credible, Denmark found it unnecessary to assess whether the Jordanian authorities would offer the authors or their children protection upon return. Both asylum claims were rejected
Despite the similarities between these two cases, the Committee’s findings in each were conspicuously different. The Committee ruled K.I.A. inadmissible without providing any substantive reasons beyond that the author had failed to substantiate that the processing of her asylum claim had resulted in gender-based discrimination or been affected by procedural defect or arbitrariness. By contrast, the Committee ruled R.S.A.A. admissible and then proceeded to find that Denmark had ‘failed to give sufficient consideration to the real, personal and foreseeable risk of serious forms of gender-based violence faced by the author and her daughters should they be returned to Jordan’, and thus that return to Jordan would violate CEDAW.
As a result of the findings from my research, I recommend that the Committee evolve into a third phase of its asylum work. In order to do so, and to realise CEDAW’s full transformative potential, the Committee needs to:
• improve the quality of its asylum decision-making;
• rethink its level of deference to national asylum outcomes;
• take a more proactive approach to credibility issues; and
• recognise the unique challenges of the refugee context which distinguish decision-making in this space from other areas of State action.
I also make recommendations for States, including to provide adequate support to the Committee and engage in good faith with its guidance on CEDAW.
Finally, for scholars, advocates and jurists, I recommend engagement with CEDAW and the Committee’s jurisprudence, especially in relation to the implied non-refoulement obligation. It has not yet realized its potential as a protection mechanism for displaced women, and a good part of that is the fact that it remains relatively underexplored and underutilised.
Cite as: Madeline Gleeson, ‘CEDAW Committee: Champion of Refugee Women’s Rights or Maintaining the Status Quo?’ (Conference Paper, Refugee Law Initiative Conference, 22 June 2023).