Unprincipled and unrealised: CEDAW and discrimination experienced in the context of migration control

Abstract

This article analyses the CEDAW Committee’s General Recommendations and Views on individual complaints, to evaluate its contribution to the elimination of discrimination against women experienced in the context of migration control. It makes two arguments. First, the Committee’s General Recommendations contain a range of doctrinal and empirical shortcomings. This opacity, and these omissions, considerably reduce the value of the Committee’s statements as a means by which States’ discriminatory migration control practices might be contested. Second, the Committee’s decisions, in communications concerned with discrimination experienced in the context of migration control, are inconsistent with those standards that it has set, and with the decisions it makes in other types of cases. A detailed analysis of the jurisprudence grounds the conclusion that the Committee is, in practice, according States a margin of appreciation that varies according to the subject of the complaint. Particular, representative communications are drawn on to argue that the margin granted in cases concerned with migration control is over-wide, characteristic not of appropriate (quasi) judicial restraint, but unprincipled deference. The article concludes by suggesting how some of the criticisms outlined may be remedied, notably by the Committee adopting its own justification and proportionality assessment.