Migration, Gender, and the Limits of Rights
in Ruth Rubio-Marín (Ed), Human Rights and Immigration, Pp. 145-176. (Oxford University Press, 2014)
32 Pages Posted: 7 Mar 2015
Date Written: July 5, 2014
This chapter examines the significance of gender in three areas of law relating to migration: human trafficking, migrant domestic workers, and gender related asylum law. It starts from the premise that human rights norms, properly interpreted, may challenge the exclusion, exploitation, and abuses experienced by many migrant women. It argues that human rights norms have the potential to address and respond to overlapping axes of discrimination and disadvantage, including ‘race’, ethnicity, migration status, and gender. It recognizes, however, that the permeability of human rights law is not without limits, particularly in the context of migration where sovereign prerogatives continue to resist human rights claims. It also matters who is promoting the gender equality agenda and to what end. In the context of migration, migrant women’s rights claims have been instrumentalized by states so as to legitimize the expansion of criminal laws (in the context of human trafficking and irregular migration) and to restrict pathways to safe and secure migration. Migrant women are frequently positioned by law as vulnerable to abuse and in need of protection. This constructed vulnerability, in turn, is presumed to justify the coercive interventions of the state. As we shall see, the normative re-emergence of protective categories does little to enhance women’s autonomy, agency, or equality, as the ‘sexed subject’ of human rights law continues to position migrant women at its limits. To the extent that women’s autonomy is recognized, such autonomy is viewed as threatening, potentially destabilizing to the certainties required for neo-liberal models of migration management, and further evidence that the protections afforded by law may be unnecessary (or undeserved). This duality is reflected in the law’s responses to migrant women. The resulting tensions, as we shall see, limit the transformative potential of human rights norms and projects of law reform, both domestically and internationally.
Keywords: Migration; Gender; Trafficking; Domestic Workers; Migrant Workers; Asylum
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