Forced Marriage as a Harm in Domestic and International Law
| Author | Catherine Dauvergne,Jenni Millbank |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00784.x |
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
Forced Marriage as a Harm in Domestic and
International Law
Catherine Dauvergne
n
and Jenni Millbank
nn
This article reports on our analysis of120 refugee cases from Australia,Canada, and Britain where
an actual or threatened forced marriage was part of the claim for protection.Wefound that forced
marriage was rarely considered by refugee decision makers to be a harm in and of itself. This
¢nding contributes to understanding how gender and sexuality are analysed within refugee
law, because the harm of forcedmarriage is experie nceddi ¡erentlyby lesbians, gaymen a ndhet-
erosexual women.We contrast our ¢ndings in the refugee case law with domestic initiatives in
Europe aimed at protectingnationals from forced marriages both within Europe and elsewhere.
We pay particular attention to British initiatives because they are in many ways the most far-
reaching and innovative, and thus the contrast with the response of British refugee law is all the
more stark.
INTRODUCTION
This article explores the disjuncture between domestic legal and political
responses to forced marriages faced by nationals of Western states and the
response of refugee law to forced marriages occurringelsewhere.The framework
of internation al human rights suggests that forced marriage shoul d be aparadigm
example of ‘persecution’, the central criterion for any refugee claim.Yet our ana-
lysis of refugee decisions in Australia, Canada, and the UnitedKi ngdom revealed
a profound and on-going reluctanceto accept that forced marriage was,i n and of
itself, a persecutory harm.
The issue of forced marriage emerged in Europe in the mid 1990s as a locus of
considerable public and political concern. Attention focused on young women
from ¢rst or second generation immigrant backgrounds forced or pressured to
marry men from their parents’ country of origin. Although paternalistically
framed, and arguably informedby racist tropes ofcultural ‘tradition’, family ‘hon-
our’ and immigration ‘convenience’ or fraud, some of these domestic initiatives
were alsomotivated by feminist and migrant women’s groups and involvedactive
and on-goingcommitment to ensuring young women’s sexual and social agency.
These domestic initiatives are starkly at oddswith how forced marriageappears in
refugee law, where a threatened or actual forced marriage is rarely held to trigger
protection obligations.
The article opens with an examination of forced marriage in international
human rights law, and examines how European states have adjusted domestic
n
Canada Research Chair in MigrationLaw, UBC, Canada.
nn
Professor of Law, UTS, Australia. This research was supported by a grant from the Australian
ResearchCouncil. Thanks to Katherine Fallah, Marianna Leishman and Anthea Vogl for their research
assistance.
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(1) 57^88
immigration, criminal and family law provisions in recent years in response to a
surge in public and political mobilisation.We then turn to the centrepiece of our
analysis,the case set of 120 refugee decisions involving a claim of forced marriage
as persecution.This case set includes all available decisionsi n Englishover the past
¢fteen years from the United Kingdom, Canada and Australia. (Because of
marked di¡erences in US asylum law, policy and procedure, our analysis of the
available US cases is published separately.
1
) Our analysis considers how these cases
address the key areas of refugee jurisprudence in forced marriage claims: persecu-
tion, nexus, credibilityand membership in aparticular socialgroup.The ¢nal sec-
tion of the paper is an examinationof the work of Britain’s ForcedMarriage Unit.
The Forced Marriage Unit is a unique government entity, providing a range of
assistance, including extraterritorial assistance, in response to individual requests
for stateprotection in avoiding andescaping forced marriage.Yet, strikingly, Brit-
ish refugee jurisprudence has evinced a deep and on-going resistance to forced
marriage claims in comparison with Canada and Australia, where forced mar-
riage has not yet emerged as a major domestic policy issue.
We conclude that forced marriage provides a key site for understanding and
explaining the persistent failure of refugee law to fully embrace human rights
norms, especially as they relate to gender and sexuality. This failure is caused by
the structureof refugee law, which is erected on a foundation of ‘othering’ and is
sustained by a recurrent division between ‘us’ and ‘them’. This dichotomy means
that refugee law endlessly replicates a division between the prosperous, benevo-
lent, liberal and rights respecting West, and the impoverished and encultured
others who threatento overwhelm‘us’if the £oodgates are not kept tightly closed.
While we acknowledge that there are many valid criticisms to be made of inter-
national hu man rights dis course generally and domestic ini tiatives on forced mar-
riage speci¢cally, our analysis in this article re£ects our belief that meaningful
consent to marriage is nevertheless an issue of vital importance.We proceed from
the premise that the state has a role, indeed a duty, in protecting consent to mar-
riage that extends to responding to claimsfor assistance from citizens and, in some
circumstances, non-citizens.
2
FORCEDMARRIAGE CLAIMS IN INTERNATIONAL LAW
The choice of whether, and whom, to marry is so intimately connected to self-
determination that it has been acknowledged in several key international
instruments as a fundamental human right. The requirement that marriage be
undertakenonly with the ‘free and full consent’ of both partieswas ¢rst enshrined
in Article 16(2) of the 1948 Universal Declaration of Human Rights (UDHR)
and wassoon after reiterated in several instruments whichcan directly bind states:
1 See C. Dauvergneand J. Millbank,‘Forced Marriage and the Exoticisationof G endered Harms in
US Asylum Law’(2010) 19ColumbiaJournalof Gendera ndLaw, forthcoming.
2 The discussion in this article focuses mai nly upon the context of refugee law, however we are
aware that requests for state assistance in responding to forced marriage are far broader, and
include for exampledomestic violence protection orders, nullityof marriage applications, sexual
assault complaints, wardship proceedings and claims for emergency housing.
Forced Marriage as a Harm in Domestic and International Law
58 r2010The Authors. Journal Compilation r2010The Modern Law Review Limited.
(2010) 73(1) 57^88
Article 23(3) of the International Covenant on Civil and Political Rights
(ICCPR) in 1966 and Article 1(1) of the Convention on Consent to Marriage in
1962. The International Covenant on Economic, Social and Cultural Rights
(ICESCR) in 1966 used the more limited language of ‘free consent’ in Article
10(1). In 1979 the Convention on the Elimination of all Forms of Discrimination
againstWomen (CEDAW) addressed marriage rights in greater detail (includi ng
equality of status withi n marriage, rights over property and rights with regard to
children) in recognition of the factthat historicallymarriage has been a keysite of
women’s inferior legal status and social subordination. CEDAWArticle 16(1)(b)
expanded the language of consent to include,‘The same right freely to choose a
spouse and to enter into marriage only with their free and full consent’.
Given how marriage has been understood in human rights law, one would
expect that the issue of forced marriage would ¢nd a direct ¢t in the framework
of refugeelaw. Our studyof forced marriageinstead demonstratesa stark disjunc-
ture between refugee jurisprudence and human rights jurisprudence. At interna-
tional law, a refugee is someone who:
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or politicalopi nion, is outside
the country of his nationality and is unable, orowing to such a fear, is unwilling to
avail himself of the protectionof that country; or who, nothaving a nationality and
being outside the country of his formerhabitual residence as a result of such events,
is unable or, owing to such fear, is unwilling to return to it.
3
On the basis of this de¢nition, international refugee law provides‘surrogate’ pro-
tection for individuals whose country of nationality cannot or will not protect
them from certain types of harm. It is clear in the jurisprudence that states will
not be held to the standard of protecting their citizens from every breach of an
international human rights standard: some breaches constitute being persecuted
and others do not.While the protection o¡ered by refugee law is not identical to
that o¡ered by international human right law, it should be related to, and intelli-
gible through, international human rights standards.
4
In his in£uential 1991 book James Hathaway argued that,‘persecution is most
appropriately de¢ned as the sustained or systematic failure of state protection in
relation to one of the core entitlements which has been recognised by the inter-
national community’.
5
In de¢ning core entitlements Hathaway proposed a four-
tiered human right s approach to persecution, organising human rights statements
according to the degree of obligation they place on states. First and second tier
rights are those enunciated in the UDHR and made binding by their inclusion
in the ICCPR and the ICESCR. The ¢rst tier comprises non-derogable rights
such as freedom from arbitrary deprivation of life, protection from torture and
3 Article 1(a)(2) of the 1951 Convention Relating to the Status of Refugees 189 UNTS 150, as
amended by the 1967ProtocolRelating tothe Status of Refugees606 UNTS 267.
4 See eg D. Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harvard
Human RightsJournal133; K.Daley and N. Kelly, ‘ParticularSocial Group: A HumanRights Based
Approach in Canadian Jurisprudence’ (2000) 12 InternationalJournalof Human Rights Law14 8 .
5 James Hathaway,The Law of Refugee Status (Toronto: Butterworths,1991) 112.
Catherine Dauvergne and Jenni Millbank
59
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
(2010)73(1) 57^88
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