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Migrant Domestic Workers and Continuums of Exploitation: Beyond the Limits of Antitrafficking Laws

  • Siobhán Mullally (a1)
Extract

Recent years have witnessed the expansion of human rights standards relating to migrant domestic workers. This includes, in particular, the adoption of the 2011 International Labour Organization (ILO) Convention on Decent Work for Domestic Workers (no. 189), General Comments from UN human rights treaty bodies, and an expanding body of case law in domestic and regional courts. Migrant domestic workers have played central roles in these cases, engaging in the public sphere to advocate for law reform, and, in doing so, gradually expanding the field of global migration law. This essay describes the emerging recognition evident in the approaches of UN human rights treaty bodies that axes of discrimination intersect and, in particular, that migration status and gender can be significant to the enjoyment of rights. This integrated approach is evident in the case law of international human rights bodies adjudicating the rights claims advanced by migrant domestic workers. The case law on Article 4 of the European Convention on Human Rights (ECHR) shows the potential for such integrated approaches to move beyond the usual fragmentation of human rights, labor, and migration laws, but that potential remains limited.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 International Labour Organization, Convention Concerning Decent Work for Domestic Workers, C189, June 16, 2011.

2 On the evolving definition of Global Migration Law, see Jaya Ramji-Nogales & Peter J. Spiro, Introduction to Symposium on Framing Global Migration Law, 111 AJIL Unbound 1 (2017).

3 On “dejuridification,” see Seyla Benhabib, Dignity in Adversity: Human Rights in Troubled Times (2011).

5 International Labour Organization, Decent Work for Domestic Workers 13, International Labour Conference, 99th Sess., Report IV(1) (2010).

6 Id.

8 Jacques Rancière, Disagreement: Politics and Philosophy (1999).

9 Audrey Macklin, Dancing Across Borders: “Exotic Dancers,” Trafficking, and Canadian Immigration, 37 Int'l Migration Rev. 464 (2003).

10 New York Declaration for Refugees and Migrants, para 8 (l), UN Doc. A/71/L.1, Annex II, (Sept. 13, 2016).

11 See Global Compact for Migration, International Organization for Migration.

13 Id.

14 International Labour Organization, Convention Concerning Decent Work for Domestic Workers art. 2, C189, June 16, 2011.

15 Committee on the Elimination of Racial Discrimination, Concluding Observations, Qatar para. 13, UN Doc. CERD/C/QAT/CO/13-16 (Mar. 9, 2012); Committee on the Elimination of Racial Discrimination, Concluding Observations, Kuwait para. 16, UN Doc. CERD/C/KWT/CO/15-20 (Mar. 9, 2012). See generally Committee on the Elimination of Racial Discrimination, UN Office of the High Commissioner for Human Rights.

16 Committee on the Protection of the Rights of all Migrant Workers and Members of their Families, General Comment No. 1 on Migrant Domestic Workers, UN Doc. CMW/C/GC/1 (Feb. 23, 2001).

17 Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 26 on Women Migrant Workers para. 26(b), UN Doc. CEDAW/C/2009/WP.1/R (Dec. 5, 2008).

18 Committee on Economic, Social and Cultural Rights, General Comment No. 20 on Non-Discrimination in Economic, Social and Cultural Rights (Article 2, Para. 2 of the International Covenant on Economic, Social and Cultural Rights) para. 30, UN Doc. E/C.12/GC/20 (July 2, 2009). The Committee notes, however, that this requirement is “without prejudice to the application of art. 2, para. 3, of the Covenant, which states: ‘Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.’”

19 Committee on Economic, Social and Cultural Rights, General Comment No. 19 on the Right to Social Security (Article 9 of the International Convenant on Economic, Social and Cultural Rights) para. 36, UN Doc. E/C.12/GC/19 (Feb. 4, 2008).

20 See Committee on Economic, Social and Cultural Rights, Duties of States Towards Refugees and Migrants Under the International Covenant on Economic, Social and Cultural Rights paras. 5-6, UN Doc. E/C.12/2017/1 (Mar. 13, 2017).

21 Committee on Economic, Social and Cultural Rights, General Comment No. 23 on the Right to Just and Favourable Conditions of Work (Article 7 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/23 (Apr. 27, 2016).

22 Id. at para. 47(f).

23 Committee on Economic, Social and Cultural Rights, supra note 20, at para. 13.

25 See “Human Rights Are for All, Even for Migrants”—Rights Experts Remind Participants to Upcoming UN Summit, Office of the High Commissioner for Human Rights (Sept. 16, 2016).

26 See Status of Ratification Interactive Dashboard, Office of the High Commissioner for Human Rights.

27 Siliadin v. Fr., App. No. 73316/01, (Eur. Ct. H.R., July 26, 2005).

29 More recently, in the case of L.E. v. Greece, App. No. 71545/12 (Eur. Ct. H.R., Jan. 21, 2016), the Court found failings by Greece of its positive obligations under Article 4, specifically with regard to the delays endured (nine months) in granting the legal status of victim of trafficking, and further inadequacies in the preliminary inquiry and subsequent investigation of the case.

30 Rantsev v. Cyprus and Russ., App. No. 25965/04 (Eur. Ct. H.R., Jan. 7, 2010).

31 Id. at para. 284.

32 C.N. v. U.K., App. No. 4239/08, para. 80 (Eur. Ct. H.R., Nov. 13, 2012).

33 C.N. v. Fr., App. No. 67724/09, paras. 77–79 (Eur. Ct. H.R., Oct. 11, 2012).

34 Chowdhury v. Greece, App. No. 21884/15, (Eur. Ct. H.R., Mar. 30, 2017).

35 Id. at para. 100.

36 Patricia J. Williams, The Alchemy of Race and Rights 424 (1992).

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