CEDAW and Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker and Root Causes of Abuse

Abstract

Like most migrant domestic workers (“MDWs”), Piang lived in a “hyper-precarious” world marked by depressed wages, coercive and insecure work conditions, and the risk of mental and physical harm. These MDWs, who are predominantly female, are protected under the widely ratified Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). This article argues that CEDAW’s transformative provisions, which require states to address root causes of injustice and discrimination, can be made more effective not only through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop the content and implementation of transformative judicial obligations under CEDAW through a comparative study of judicial decisions dealing with the abuse of female MDWs in three key MDW destinations that are party to CEDAW—Hong Kong, Singapore, and Malaysia. By engaging with scholarship on CEDAW’s positive obligations, transformative equality, and theories of adjudication, this article argues that criminal law courts should not only ensure the accountability and punishment of perpetrators of MDW abuse, but should also ascertain and critique the laws, policies, and practices enabling such abuse in judicial decisions.

Keywords: CEDAW, human rights, migrant domestic workers