The boundaries of universality - migrant women and domestic violence before the Strasbourg Court

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, Othman v. UK. The first comparison exposes a territorial bias in the case law. It shows that the risk assessment is much more lenient in cases of women seeking international protection in CoE Member States, than in cases of women who suffer domestic violence within their CoE home States. The second comparison reveals a gender bias in the jurisprudence of different types of non-refoulement cases. The assessment of available protection from an established risk is separately assessed in cases of men fleeing harm from State actors, but not in cases of women escaping ‘private’ harm. As a result, migrant women’s rights are limited by two intersecting and mutually reinforcing inequalities – 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.