Crossing borders, claiming rights: using human rights law to empower women migrant workers.

• Author: Satterthwaite, Margaret L.

This Article considers the impact of the Migrant Workers Convention on the human rights of women migrants. While the adoption of a convention targeting abuses against migrant workers is a significant development in international human rights law, the author cautions that its specialized nature might be perceived as a limitation on the obligations that states owe to women migrants. The author warns against traditional, single-variable, compartmentalization of human rights treaties that would make the Migrant Workers Convention the only applicable human rights tool to women migrants, and, instead, advocates an intersectional approach. Using intersectionality, the author shows that many of the major human rights treaties can be invoked on behalf of the empowerment of migrant workers. While 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 refocus their attention on the entire range of human rights treaties, and consider the ways in which the rights of women migrants are already included in the panoply of standards set out in those instruments.

1. INTRODUCTION

   The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers' Convention or MWC) entered into force on July 1, 2003. (1) 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 existence of a binding human rights convention that provides explicit and extensive protections for migrant workers is a singular achievement. However, given that none of the primary receiving--"host"--countries have ratified the treaty, (2) and that few are likely to do so in the near future, (3) this victory is a limited one, even for human rights advocates accustomed to celebrating small achievements. For those concerned about the rights of women migrants, a dominant focus on the Migrant Workers' Convention could be detrimental, not only because such a focus would siphon off energy more wisely placed elsewhere, but also because it would allow states to minimize the obligations they owe to women migrants under existing human rights law regardless of their decision to sign, ratify, or ignore this new treaty.

   The temptation to counter-productive compartmentalization is by no means new or unique to advocates for migrants' rights: it is instead the product of the traditional single-variable human rights analysis still prevalent among human rights practitioners, U.N. experts, and those charged with implementing treaty norms at the national level. By focusing on a single aspect of experience--that of being a member of a racial minority, or a woman, for instance--and on the standards that seem most obviously to apply to those variables, human rights professionals often fail to examine and articulate the ways in which rights standards can be enlisted to provide strong protections for individuals whose experience crosses the pre-set institutional lines. Through the lens of such single-variable analysis, the MWC appears to be the only relevant standard for those who are migrant workers, since the treaty explicitly responds to the status "migrant." Viewed through the framework of intersectionality, on the other hand, all of the other major treaties have significant contributions to make to the empowerment of migrant workers.

   In this Article I will argue that applying the methodology of intersectionality to human rights treaty law allows us to identify and articulate a set of robust standards relating to women migrant workers that can be applied to states--now--by shifting the focus from the single variable of "migration status" to the multiple variables relevant to women who migrate for work--including gender, race or ethnicity, and occupation. Other scholars have demonstrated the ways in which the failure to use an intersectional approach leads to misapprehensions about individuals' varied experiences of discrimination and subordination. (4) Shifting the focus, I will argue here--more affirmatively--that intersectionality can also be applied to existing rights standards to produce a wide variety of empowering norms that advocates can use right away. (5)

   Since there are no real enforcement mechanisms for human rights internationally, much depends on whether--and how--advocates take up the discourse of rights. Indeed, outside of the various regional human rights bodies, which have binding authority over states in various forms, human rights institutions and advocates largely rely on their power to "name and shame" as they monitor countries' compliance with treaties. Despite the international human rights system's significant limits, it provides advocates with a language and a 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 both sending and receiving countries. What is needed is a skeptical engagement with human rights institutions and standards aimed at making states more responsive to the gendered, racialized, and class-specific impacts of economic globalization on women who cross borders to find work.

   Through the lens of intersectionality, it is clear that treaty law prohibits governments from reducing policy decisions concerning the treatment of migrant workers to instrumental calculations about the economic impact of upholding entitlements. While 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 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 instruments.

   My argument will unfold as follows: in Section II, I situate the experience of women migrant workers by describing the major forces combining to create gendered labor migration flows. In Section III, I present the concept of intersectionality, consider the issue of women's vulnerability, and comment on the way in which human rights law can be used to reach private, non-state conduct. In Section IV, I apply intersectionality to several of the major issues that have been identified by rights advocates as especially pressing for women migrant workers. In relation to each of these forms of violation, I examine the ways in which human rights law can be invoked to require remedial steps and an end to abusive practices. The bulk of the analysis focuses on the experience of women in household service, since domestic work is the most prevalent occupation for women migrants around the world. (6) The analysis draws on the five most relevant major human rights conventions: (7) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); (8) the International Covenant on Social, Economic and Cultural Rights (ICESCR); (9) the International Covenant on Civil and Political Rights (ICCPR); (10) the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); (11) and the Migrant Workers Convention (MWC). (12) Since this Article focuses on treaty law, it does not include an analysis of the wide range of documents on migration produced by U.N. bodies in recent years, such as the reports produced by the U.N. Special Rapporteur on the Rights of Migrants (13) and the Secretary-General, (14) resolutions of the U.N. General Assembly (15) and the Commission on Human Rights, (16) documents relating to the International Commission on Migration, (17) or the outcome documents from the various world conferences of recent years, though they were consulted as background. Further, important work being done at the regional level--including the recent advisory opinion of the Inter-American Court of Human Rights affirming the rights of all migrant workers--is not examined in this Article. (18)

   In the concluding section, I emphasize the need both to insist on enforcement of existing protections, and to remain attentive to emerging claims. Such emerging claims may require scholars and advocates to push the current boundaries of human rights frameworks to accommodate claims made by workers who are crossing borders at increasingly rapid rates.

   This Article is intended to contribute to the efforts of advocates to use existing protections now, rather than waiting until more states have ratified the MWC, or until the U.N. human rights treaty bodies are effectively working in close coordination. It is also aimed at advancing scholarly consideration of human rights by demonstrating that careful doctrinal work can help close the gap between rules and reality by providing the normative clarity that is a prerequisite to effective rights enforcement.

2. FEMINIZED LABOR MIGRATION IN THE CONTEXT OF GLOBALIZATION

   The world is witnessing an increasing feminizaton of migration, (19) resulting from a number of worldwide forces in which gender roles and sex discrimination are intertwined with globalization. Trends contributing to this include: the growing demand for labor in fields dominated by women (especially the service sector); the lower cost of production when labor-intensive tasks are shifted to women migrant workers; (20) and the sex-stereotyping of large business enterprises and governments that may see women as cheap, temporary, or supplemental laborers whose "docile" nature makes them easily exploitable. (21)

   Other forces are more regional. Women's widespread participation in the wage labor market in the North, when combined with global income disparities in the South and persisting demands for Northern women to retain responsibility for...