Unprincipled and unrealised: CEDAW and discrimination experienced in the context of migration control
| Author | Catherine Briddick |
| DOI | http://doi.org/10.1177/13582291221114082 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(3) 224–243
© The Author(s) 2022
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DOI: 10.1177/13582291221114082
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Unprincipled and unrealised:
CEDAW and discrimination
experienced in the context of
migration control
Catherine Briddick
Abstract
This article analyses the CEDAW Committee’s General Recommendations and Views on
individual complaints, to evaluate its contribution to the elimination of discrim ination
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 commu-
nications 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 tha t 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.
Keywords
Migration control, CEDAW, non-refoulement, standard of review, margin of
appreciation, gender-based violence, indirect discrimination, discrimination against
women
Refugee Studies Centre, University of Oxford, UK
Corresponding author:
Catherine Briddick, Refugee Studies Centre, University of Oxford, 3 Mansfield Road, Oxford OX1 3TB, UK.
Email: catherine.briddick@qeh.ox.ac.uk
Introduction
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) is one of nine core international human rights instruments. Adopted in 1979, it
has, at the time of writing, 189 States parties. The Convention is monitored by the
Committee on the Elimination of Discrimination against Women (the Committee).
Committee members are ‘experts of high moral standing and competence in the field
covered by the Convention’, who serve in their personal capacities.
1
The Committee
reviews States’reports on the ‘legislative, judicial, administrative or other measures’they
have adopted to give effect to the Convention.
2
It also issues General Recommendations
and, following the adoption of an Optional Protocol, hears communications from in-
dividuals who believe that their CEDAW-protected rights have been violated.
3
As will be apparent from its title, CEDAW’s protection from discrimination on the
grounds of sex/gender is asymmetrical.
4
By defining and prohibiting discrimination
against women, guaranteeing women’s political participation and reproductive autonomy,
and securing women’s rights in law, education, employment, cultural and family life, the
Convention seeks to ensure women’s‘exercise and enjoyment of human rights and
fundamental freedoms…’.
5
That CEDAW does not protect all people from discrimination
on the grounds of sex/gender, does not mean that it cannot, or should not, protect a
significant proportion of them.
6
Principled and pragmatic reliance on a legal regime which
ensures that women’s rights are human rights does not preclude, or undermine, the
adoption and use of a range of instruments to remedy other, and all forms of gendered
inequality.
7
Feminist and legal reliance on the ‘non-monolithic’category of ‘woman’
8
remains a ‘necessary, strategic and non-dangerous form of weak essentialism’
9
which
‘serves to underscore that worldwide human beings experience privation at a dispro-
portionate rate because they are women.’
10
The Convention, and key terms within it, may
be interpreted purposively, contributing to the development of a more ‘liberatory and
inclusive conception of gender in international (and domestic) law.’
11
This, and the
Convention’s mobilisation in conjunction with discrimination prohibitions that encom-
pass multiple, and intersecting grounds, ensure that the Convention remains a vital, but by
no means the only, response to sexed/gendered discrimination.
12
In this article, I analyse the Committee’s General Recommendations and Views on
individual complaints, to evaluate its contribution to the elimination of discrimination
against women in a particular legal context - migration control. In Part I, I review all the
Committee’s General Recommendations in order to identify doctrinal and empirical
shortcomings and omissions in the Committee’s reasoning on when, and why, certain
widespread migration control practices are discriminatory. My starting point is the po-
sition, in international law, that while the Committee’s interpretation of CEDAW is
authoritative,
13
it is only correct when in accordance with the ordinary meaning of
relevant terms in their context, and in light of the Convention’s object and purpose.
14
In Part II, I examine the Committee’s application of those obligations it has delineated
to States, reviewing individual complaints brought under the Convention’s Optional
Protocol over a 9-year period. This analysis reveals two disparities, or inconsistencies.
The first is between how the Committee approaches migrant women’s rights in abstract,
Briddick 225
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