CEDAW and the Protection of Women Refugees in Asia

Abstract

This paper considers the relevance of international human rights law as a framework for ensuring greater protection for women refugees in Asia, especially in states not bound by the 1951 Convention relating to the Status of Refugees or its 1967 Protocol (Refugee Convention) (the main instruments that comprise the international refugee protection framework). Most Asian states have not acceded to these instruments and as a result some commentators have lamented the lack of relevant legal standards in a region that hosts approximately one third of the world’s refugees.

Although express refugee norms may not apply, all Asian states have ratified at least two of the core international human rights treaties including the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). CEDAW elaborates the nature of state obligations to eliminate discrimination against women, a concept that includes gender-based violence. Of particular importance for efforts to secure better refugee protection in the region, this paper examines whether CEDAW contains an implicit duty on state parties not to return (refoule) individual women to places where they risk facing gender-related persecution. In the absence of explicit refugee protection obligations, recognition of such a duty would strengthen CEDAW’s capacity as a legal and advocacy tool to protect women refugees. At the same time, the paper identifies possible gaps in any protection regime based solely on international human rights standards and reflects on the continuing value and relevance of the Refugee Convention.