The protection of migrant women subjected to domestic violence under the framework of the Council of Europe. A feminist approach

Abstract: Migrant women facing domestic violence in the Council of Europe have been traditionally characterised, except in some national countries, as not having any legal possibility to leave the situation with proper resources, or being able to guarantee their stay in the country they are living. Since the approval of the Council of Europe Convention on preventing and combating violence against women and domestic violence, on May 2011, there is an option for those migrant women with dependent residence status to escape from the spiral of violence and get an independent residence status. However, the article containing this provision, Article 59, is susceptible to reservation. Thus undocumented migrant women may be left outside the scope of the Convention. This paper provides an analysis of the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence. It goes on to examine the problems faced by undocumented migrant women and those whose residence status is dependents upon their spouses. In addition it will present the common problems of the two groups. It also explores different feminists’ theories in order to deal with the patriarchal problem that is domestic violence. In conclusion, the paper will present the author’s opinion of the most reasonable and useful model in the fight against domestic violence suffered by migrant women under the framework of the Council of Europe. The paper also examines concepts of public international law, such as the rules on reservations and the principle of non-discrimination. Finally the Spanish experience will be taken as an example, as the protection offered by this State is seen to extend further than that offered by the Convention offering. By using this example, of options provided by the State to undocumented migrant women, I manage to criticise the Spanish project from both the practical application of measures and the results achieved. The aim of these three analyses is, on the one hand, to use public international law, to argue that from a human rights perspective, Article 59 of the Convention, should not be open to reservation, and, furthermore, to assert that a minimum core of provisions should be contained regulating the situation of undocumented migrant women suffering this violent situation. Using the feminists’ theories and the Spanish experience, I conclude by suggesting some improvements for fighting against domestic violence suffered by migrant women. The first one is an effective application of the due diligence principle by the State. Keeping in mind the political factors influencing the debate, I offer what I consider to be improvements to the current Convention as an effort to effectively fight against domestic violence suffered by migrant women, both undocumented and those with a dependent residence status, being aware of the role that politics has in all the process.