UN Treaty Bodies Clarify State Obligations Regarding Detention, Harmful Practices, and Refugee Women

children, discrimination, immigration & asylum, liberty & security of person, UN treaty bodies, women's rights
The Human Rights Committee during its 112th SessionCredit: UN Treaty Body Webcast
The Human Rights Committee during its 112th Session
Credit: UN Treaty Body Webcast

Three United Nations (UN) human rights treaty bodies have released new interpretations concerning the rights to liberty and security of the person; harmful practices impacting women and girls; and the effect of gender on the refugee status, asylum, nationality, and statelessness of women. These general comments and general recommendation flesh out States parties’ obligations under three UN human rights treaties.

The Human Rights Committee released General Comment No. 35, which addresses Article 9 (right to liberty and security of the person) of the International Covenant on Civil and Political Rights (ICCPR). The Committee on the Elimination of Discrimination against Women (CEDAW Committee) published General Recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality, and statelessness of women. And for the first time ever, two committees of human rights experts – the CEDAW Committee and the Committee on the Rights of the Child (CRC) – have collaborated in drafting a joint general recommendation and general comment discussing the impact of harmful practices on women and girls. Nine of the ten human rights treaty bodies established pursuant to United Nations human rights treaties are authorized to issue general comments, or general recommendations, interpreting the scope of those treaties’ provisions and guiding States in their implementation.

Human Rights Committee’s General Comment No. 35 on Article 9 of the ICCPR

With General Comment No. 35, the Human Rights Committee has replaced General Comment No. 8, which was adopted in 1982. Human Rights Committee, General Comment No. 35 (Article 9: Liberty and security of person) (advance unedited version), para. 1.

General Comment No. 35 provides the Committee’s contemporary understanding on a range of broad topics relating to the right to liberty and security, including:

  • arbitrary detention and unlawful detention;
  • notice of reasons for arrest and any criminal charges;
  • judicial control of detention in connection with criminal charges;
  • the right to take proceedings for release from unlawful or arbitrary detention;
  • the right to compensation for unlawful or arbitrary arrest or detention; and
  • the relationship between Article 9 and the other articles of the ICCPR.

Id. at Sections II-VII.

The General Comment gives substance to a series of particularly relevant and timely issues. It affirms, for instance, States’ unambiguous duty to take measures to protect individuals from having their liberty taken away by third parties, indicating that “States parties must protect individuals against abduction or detention by individual criminals or irregular groups, including armed or terrorist groups, operating within their territory.” Id. at para. 7.

It also addresses the issue of detention for the purpose of controlling immigration. According to the General Comment, detention for the purpose of immigration control is not arbitrary per se, but must be “reasonable, necessary and proportionate in light of the circumstances, and reassessed as it extends in time.” Thus, State officials should take into account the effect detention has on detainees’ physical and mental health, and should detain children only “as a measure of last resort and for the shortest appropriate period of time.” Id. at para. 18.

The Human Rights Committee adopted General Comment No. 35 at the end of its 112th Session, held from October 7 to 31, 2014 in Geneva, Switzerland. During its 112th Session, the Committee also reviewed the initial and periodic reports of Sri Lanka, Burundi, Haiti, Malta, Montenegro, and Israel concerning their implementation of the ICCPR. The Committee’s concluding observations and recommendations on the six reports are available on the Committee’s 112th Session webpage.

CEDAW Committee’s General Recommendation No. 32 on Women Refugees and Asylum Seekers

The CEDAW Commmittee is responsible for monitoring the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In General Recommendation No. 32, the Committee considered the challenges women face when they are in situations of displacement and statelessness, and particularly how those challenges compound existing obstacles to eliminating discrimination against women. [OHCHR: Rights and plight of women]

General Recommendation No. 32 guides States parties on how to meet their obligations to “respect, protect and fulfil the rights of refugee, asylum-seeking and stateless women to non-discrimination and substantive equality.” CEDAW Committee, General Recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness, UN Doc. CEDAW/C/GC/32, 5 November 2014, para. 4. Within this broad objective, the General Recommendation addresses the questions of:

  • the relationship between the Convention, international human rights law, and international refugee law;
  • the application of non-discrimination and gender equality to international refugee law; and
  • the application of non-discrimination and gender equality to nationality determination processes and statelessness.

Id. at Sections III-V.

One specific issue addressed by the General Recommendation is the persistence of “other forms of exploitation” that coincide with displacement, such as human trafficking for the purpose of slavery, servitude, or sexual or labor exploitation. Similarly, violence against women is a major form of persecution experienced by women in situations of displacement or statelessness. The danger of treating women’s claims “through the lens of male experiences,” consequently, is that their refugee or asylum status may be assessed improperly or rejected entirely. For that reason, the CEDAW Committee posits that gender sensitivity is required to fully take into account the needs of women and girls who are particularly vulnerable or who have experienced sexual abuse or exploitation, trauma, torture, or ill-treatment. Id. at paras. 14-16, 34.

In addition to encouraging the adoption of a gender-sensitive approach to refugee and asylum procedures, the Committee recommends that States provide “supportive interview environment[s],” amend nationality laws that indirectly discriminate against women, recognize gender-based violence and persecution as “legitimate grounds for international protection,” and work cooperatively with the Office of the UN High Commissioner for Refugees (UNHCR) to improve the systems and procedures for handling claims of asylum and refugee status. Id. at paras. 15, 41, 50(e), 54.

The CEDAW Committee adopted General Recommendation No. 32 at the end of its 59th Session, held from October 20 to November 7, 2014 in Geneva, Switzerland. During its 59th Session, the Committee also reviewed the reports of Venezuela, Poland, China, Ghana, Belgium, Brunei Darussalam, Guinea, and the Solomon Islands concerning their implementation of CEDAW. The CEDAW Committee’s concluding observations and recommendations on the reports of the eight States are available on its 59th Session webpage.

CEDAW Committee and CRC’s Joint General Recommendation/General Comment Nos. 31 & 18 on Harmful Practices for Women and Girls

Joint General Recommendation/General Comment Nos. 31 & 18 addresses States parties’ obligations under the Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination against Women, two of the most widely ratified human rights agreements, with 194 and 188 States parties, respectively.

Together, the CEDAW Committee and the CRC drafted this interpretation to provide guidance on “legislative, policy, and other appropriate measures that must be taken to ensure full compliance with their obligations under the two Conventions to eliminate harmful practices” impacting women and girls. CEDAW Committee & CRC, Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices, UN Doc. CEDAW/C/GC/31-CRC/C/GC/18, 4 November 2014, para. 1.

Joint General Recommendation/General Comment Nos. 31 & 18 offers criteria for identifying harmful practices; provides a holistic framework for addressing harmful practices; recommends steps States should take to ensure compliance with their obligations under the two conventions; and explains the causes, forms, and manifestations of harmful practices. Id. at Sections 5-7, para. 80. Among the harmful practices specifically addressed in the document are female genital mutilation, child marriage, forced marriage, polygamy, and honor crimes. Id. at paras. 18-19, 24, 28.

The CEDAW Committee and CRC adopted the joint document at the end of their 59th and 67th Sessions, respectively. The CRC held its 67th Session September 1-19, 2014 in Geneva, Switzerland. During its 67th Session, the CRC also reviewed the reports of Croatia, Fiji, Hungary, Morocco, Singapore, and Venezuela concerning their implementation of the Convention on the Rights of the Child and its Optional Protocols. The CRC’s concluding observations and recommendations on the reports of the six States are available on its 67th Session webpage. CEDAW’s other 59th Session activities are detailed in the section above.

Additional Information on UN Human Rights Treaty Bodies

For more information on the Human Rights Committee, the Committee on the Elimination of Discrimination against Women, and the Committee on the Rights of the Child, visit IJRC’s Online Resource Hub.