The boundaries of universality - migrant women and domestic violence before the Strasbourg Court
| Published date | 01 December 2019 |
| DOI | 10.1177/0924051919884757 |
| Date | 01 December 2019 |
| Author | Janna Wessels |
| Subject Matter | Articles |
Article
The boundaries of
universality - migrant
women and domestic
violence before
the Strasbourg Court
Janna Wessels
Justus Liebig University Giessen, Germany
Abstract
This article explores the boundaries encountered by women fleeing domestic violence in countries
located outside the Council of Europe (‘CoE’) when claiming non-refoulement before the Strasbourg
Court. The main argument is that these boundaries are embedded in the different standards the
Court applies in its Article 3 ECHR case law. To develop this argument, the article conducts an
exemplary critical analysis of A.A. and Others v. Sweden in comparison with,firstly, Opuz v. Turkey and
secondly, Othmanv. UK. The first comparison exposes a territorial bias in the case law. It showsthat
the risk assessmentis much more lenient in cases of women seeking international protection in CoE
Member States,than in cases of women who suffer domesticviolence within their CoE home States.
The second comparison reveals a gender bias in the jurisprudence of different types of non-refou-
lement cases.The assessment of available protection from an establishedrisk is separately assessedin
cases of men fleeingharm from State actors, but not in cases of womenescaping ‘private’ harm. As a
result, migrant women’s rights are limited by twointersecting and mutually reinforcinginequalities –
both as migrants and as women. Taken together, these biases make the purportedly absolute
prohibition of torture as laid down in Article 3 ECHR malleable in respect of migrant women. In
order to respond to these dissonances, the article suggests a reformulation of the real risk
assessment in migrant women’s cases: It should consist in a two-step assessment, establishing first
the risk and then the available protection, and be guided by due diligence standards.
Keywords
assessment, public/private divide
Corresponding author:
Janna Wessels, Postdoctoral researcher, Research Group Migration & Human Rights, Justus Liebig University Giessen,
Giessen, Germany.
E-mail: janna.wessels@recht.uni-giessen.de
Netherlands Quarterly of Human Rights
2019, Vol. 37(4) 336–358
ªThe Author(s) 2019
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DOI: 10.1177/0924051919884757
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1. Introduction
One of the defining characteristics of human rights is that anyone is entitled to them by
virtue of being human. Yet in spite of their inherent universal promise, the rights and
interests of migrants are no ‘classic’ issue in human rights discourse. This discourse has
traditionally been based on the fictitious model of an immobile society with borders
controlled by sovereign States. The European Convention of Human Rights (‘ECHR’ or
‘Convention’) reflects the traditional ‘sedentary bias’
1
of human rights, as it was designed
with the protection of European citizens from totalitarian governments in mind.
2
Yet since
the 1990s, migrants increasingly challenged this notion by appealing to the universal
promise of human rights before the European Court of Human Rights (‘ECtHR’ or
‘Court’). The Court has since become a central forum for jurisgenerative deliberations
3
regarding the human rights of migrants in Europe. Important judgments have decisively
affirmed the rights of migrants.
4
However, recent studies have also criticised this jurispru-
dence, in particular for endorsing the notion that States have a sovereign right to exclude
non-nationals.
5
In its case law concerning migrant cases, the ECtHR has thus established
itself as a ‘Laodicean Court’: neither cold nor hot.
6
On the one hand, it has taken the
universalistic claim seriously and extended protection to migrants. On the other hand, the
Court has undermined this universalistic potential and maintained distinctions between ‘us’
and ‘them’.
7
This article builds on this line of research and suggests that the tension in the Court’s approach
to migration is exacerbated in cases involving gendered claims. Migrant women’s rights are
limited by two intersecting and mutually reinforcing inequalities – both as migrants and as women.
This article argues that the jurisprudence is fraught with both a territorial and a gender bias. The
territorial bias engenders distinctions between ‘external cases’, i.e. cases of women seeking inter-
national protection in Council of Europe (‘CoE’) Member States, and ‘internal cases’ of women
within their CoE home States. The gender bias, in turn, produces inequalities between different
types of external cases, disadvantaging ‘gendered’ migrant claims vis-`a-vis other migrant cases.
In extrapolating these biases, the ambition of this article is both descriptive and normative.
An exemplary critical comparative analysis of three cases, notably, Opuz v. Turkey,A.A. and
1. Daniel Thym, ‘Migrationsfolgenrecht’ (2017) 76 Vero¨ffentlichungen der Vereinigung Deutscher Staatsrechtslehrer 169,
170.
2. Marie-B´en´edicte Dembour, When Humans Become Migrants. Study of the European Court of Human Rights with an
Inter-American Counterpoint (Oxford University Press 2015) 36.
3. Seyla Benhabib, The Rights of Others. Aliens, Residents, Citizens (Cambridge University Press 2004).
4. Landmark judgments include: Berrehab v the Netherlands App no 10730/84 (ECtHR, 21 June 1988); Gaygusuz v
Austria App no 17371/90 (ECtHR, 16 September 1996); Chahal v UK App no 22414/93 (ECtHR, (GC), 15 November
1996); Saadi v Italy App no 37201/06 (ECtHR, (GC), 28 February 2008); M.S.S. v Belgium and Greece App no 30696/09
(ECtHR, (GC), 21 January 2011); Hirsi Jamaa and Others v Italy App no 27765/09 (ECtHR, (GC), 23 February 2012).
5. This notion was captured by the term ‘statist assumption’ by Cathryn Costello and ‘Strasbourg reversal’ by Marie
Dembour. See Cathryn Costello, The Human Rights of Migrants and Refugees in European Law (Oxford University
Press 2016) 10-11; Cathryn Costello, ‘Human Rights and the Elusive Universal Subject: Immigration Detention Under
International Human Rights and EU Law’ (2012) 19(1) Indiana Journal of Global Legal Studies 257, 261; and Dembour
(n 2) 1-6.
6. Revelation 3:14-22, and see Ju
¨rgen Bast and Janna Wessels, The Human Rights of Migrants in the Jurisprudence of the
ECtHR: Activating and Defusing the Revolutionary Potential of Universalism (draft on file with author).
7. See Bridget Anderson, Us and Them? The Dangerous Politics of Immigration Control (Oxford University Press 2013).
Wessels 337
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