Soft Authority Against Hard Cases of Racially Discriminating Speech: Why the CERD Committee Needs a Margin of Appreciation Doctrine

Abstract

Faced with an increasing backlash against immigrants in many developed states, this article revisits the practice of the Committee for the Elimination of All Forms of Racial Discrimination (CERD Committee) with respect to racially discriminating speech. Cases like the decision concerning Thilo Sarrazin reveal an impoverished style of reasoning that shows little sensitivity for the actual context of the decision. The CERD Committee seems insufficiently aware of the authority it exercises through its Communications, whose real, albeit not legal, effects resemble those of judgments of international courts. The CERD Committee should therefore consider applying standards of reasoning similar to those of international courts in order to increase the legitimacy and effectiveness of its Communications. They would particularly benefit from a margin of appreciation doctrine that leaves domestic authorities greater leeway in developing context-sensitive strategies to counter the threat of anti-migrant popular sentiment, including, but not limited to, criminal proceedings.