Women Migrants' Rights under International Human Rights Law

Author(s): Margaret Satterthwaite

Source: Feminist Review, No. 77, Labour Migrations: Women on the Move (2004), pp. 167-171
Published by: Palgrave Macmillan Journals
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77 women migrants' rights

under international human

rights law

MargaretSatterthwaite

The International Convention on the Protection of the Rights of All Migrant

Workersand Members of Their Families (Migrant Workers'Convention) entered
into force on 1st July 2003. This event was celebrated as a major milestone in
the effort to provide human rights protections to migrant workers all over the
world-including the large number of women who migrate for work. Certainly,
the fact that a binding human rights convention exists that provides explicit
and extensive protections for migrant workers is a singular achievement.

The Migrant Workers'Convention was drafted over a 10-year period, and was
adopted by the UN General Assembly in 1990. The treaty, which is unusually
long and detailed in comparison to the other major human rights conventions,
was developed through a painstaking process of consensus building among
both receiving and sending states (Hune, 1991). The result is a treaty that
includes a wide range of protections that also contain significant claw-back
provisions which give ratifying states the ability to limit the coverage of the
treaty's norms. For example, while article 41 guarantees the right of
documented migrants to vote in their countries of origin, the second clause of
the article provides that this right shall be facilitated and exercised 'in
accordance with [each country's] legislation'. While some host states have
stronger protections than those included in the treaty for documented workers
(Iredale and Piper, 2003), many of those same states' laws may fall below the
standards set out for undocumented workers. This simultaneous under- and
over-protective nature means that many receiving countries may never sign the
treaty.

Indeed, none of the primary receiving countries have ratified the treaty, and
very few are likely to do so in the near future, making the treaty's entry into
force a limited victory. For feminists concerned about the rights of women
migrants around the world, an excessive focus on the Migrant Workers'
Convention could be detrimental-not only because such a focus would siphon
off needed energy more wisely placed elsewhere-but also because it could
serve to allow states to marginalize the obligations they owe to women
migrants under existing human rights law.

feministreview77 2004 167

(167-171) (i 2004 FeministReview.0141-7789/04 S15 www.feminist-review.com

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 This continuing marginalization is especially perverse in relation to women, whose
experience is already frequently marginalized through 'women's human rights'
discourses that focus almost exclusively on the standards set out in the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW),as well
as highlighting violence against women apart from its structural causes -
especial Iy in its sexualized forms- as the paradigmatic forms of human rights
abuse women face (Miller, 2004). In contrast, an intersectional approach to human
rights law offers a way out of this trap by emphasizing processes of discrimination
instead of the characteristics or status of those for whom human rights protections
are invoked. When used in relation to migrant women, intersectionality reveals a
wide range of rights protections that are available now, even in countries that
have not ratified the Migrant Workers'Convention.

Briefly, intersectionality is an approach to combating discrimination in which the

various forms of subordination that individuals face are taken into consideration
as they act together (Romany, 2000; Crooms, 1997; Crenshaw, 1991). Instead of
conceiving of a minority woman, for example, as separately or consecutively
disadvantaged by gender and racial discrimination, intersectionality calls
attention to the ways in which race and gender interact - or intersect - to
create specific forms of discrimination and oppression. An Indonesian woman's
experience of racism in Singapore, for example, will be different than the racism
experienced by an Indonesian man in the same country, and her experience of
gender discrimination will differ from that of a Singaporean woman. These
differences are seen as crucially important by those using intersectional analysis,
since they may require different remedial and preventive actions under human
rights law. Further, by focusing on the dynamics of multiple forms of
discrimination, intersectionality emphasizes society's responses to variously
situated individuals and groups rather than their characteristics (Ontario Human
Rights Commission, 2000) . Intersectionality al lows analysts to move beyond
debates over the ontological 'essence' of the myriad identity categories used by
individuals, communities, and states, enabling analysis of identities instead as
fluid and changeable (Bond, 2003) . This transcendence is especial Iy important
when examining identities that cross borders, since the conditions that construct
and impact on those identities are likely to vary a great deal in different settings.

An intersectional approach requires anctlysts to begin with the lived experiences of

women migrant workers not as members of discrete identity groups, but in relation
to a variety of forms of exploitation and abuse along multiple axes of
discrimination under all of the major human rights treaties. On a practical level,
shifting the focus to the entire range of human rights treaties through
intersectionality also allows advocates to articulate and insist on human rights
protections for women migrants in countries that have not ratified the Migrant
Workers'Convention. While this is especially pertinent to host countries, it is also
important in relation to sending countries. Careful analysis of the more widely

168 fem i n i st review 77 2 0 04 women migrunts' rights

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ratified treaties, including CEDAW(ratified by 174 countries), the International
Covenant on Civil and Political Rights (ratified by 151 countries), the Covenant on
Economic, Social and Cultural Rights (ratified by 148 countries), and the
Convention on the Elimination of All Formsof Racial Discrimination (ratified by 169
countries) reveals a number of robust standards that apply to some of the most
widespread abuses women migrants face. For example, countries that host women
migrant workers must take proactive steps to ensure that women do not suffer
from the disproportionate impact of gender-neutral laws and policies. A crucial
form of discrimination against women migrant workers that is illegal under the
non-discrimination standards of the major treaties (despite being commonly
written in gender-neutral terms) is the pervasive exception to labor laws and
workplace regulations that exists for those engaged in domestic work. Such
exceptions exist in many countries throughout the world. For example, the United
States explicitly exempts domestic workers from coverage under laws guaranteeing
the right to organize, strike, and bargain collectively. Malaysia exempts domestic
workers from regulations concerning rest days, hours of work, and other conditions
of service. Similarly, 'protections' such as restrictions on the rights of women to
travel for work, adopted in sending countries such as Bangladesh and the
Philippines, violate women's rights to freedom of movement, and to equal
protection of the law. An intersectional analysis will also allow advocates to invoke
provisions outlawing discrimination based on race and ethnicity to fight practices
such as the selective non-enforcement of minimum wage guarantees for women of
certain 'unpopular' nationalities-practices that are especially prevalent in the
domestic service sector.

Ultimately, human rights-as discourse and as practice-is limited by its state-

centered nature, which allows countries to pick and choose among the standards
to which they will adhere, and which forces advocates to articulate rights
differently according to the location of individual rights-holders at any given time
(in the host country or in the sending country), as well as according to their status
as documented/ 'regular' or undocumented/ 'irregular'. Still, human rights can be
a much more powerful tool than often assumed: through persistent advocacy,
feminists have successfully established the principle that states are responsible
under human rights law for ending violence against women, even when it occurs in
the 'private' sphere. Througha similar process of engagement with human rights
institutions internationally and individual countries at the national level, norms
are emerging that will bind transnational corporations and potentially even
international financial institutions such as the World Bank. Efforts to articulate
rights applicable to women migrant workers should be even easier, as a legal
matter, than these related struggles.

Since there are no real enforcement mechanisms for human rights internationally,
much will depend on whether-and how-advocates take up the discourse of
rights. Indeed, outside of the various regional human rights commissions and

MargaretSatterthwaite feministreview77 2004 169

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 courts (which have binding authority over states in various forms) human rights
institutions and advocates rely on their power to 'name ctnd shame' as they
monitor countries' compliance with treaties. Despite the international human
rights system's significant limits, it gives us a language and a material practice
through which to engage states. Given the powerful transnational processes at
work in producing conditions of life for migrant women, international human rights
law should be seen as a crucial tool to capture the attention of sending and
receiving countries. What is needed is a skeptical engagement with human rights
institutions and standards aimed at making the state more responsive to the
gendered, racialized, and class-specific impacts of economic globalization and the
increasing privatization of the welfare state. Intersectionality gives us the
methodological tools needed to engage in this process in a way that will ensure
that basic protections against exploitation are not inexorably reduced to
instrumental calculations about the economic impacts of workers' entitlements. To
capture this potential ity, advocates and scholars should welcome the Migrant
Workers' Convention as an interpretive tool and as a potential site for the
development of best practices. They should also, however, turn away from that
treaty to refocus their attention on the entire range of human rights treaties,
insisting that the rights of women migrants are already included in the panoply of
standards set out in those other instruments.

author biography
Margaret Satterthwaite, J.D., is Research Director of the Center for Human Rights
and Global Justice at New york UniversitySchool of Law, where she also co-teaches
the International Human Rights Clinic. Her research focuses on gender, sexuality,
and migration, as well as on evolving strategies for monitoring economic, social
and cultural rights.

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