Abstract
This article launches a frame to investigate the inequalities underlying the human rights violations migrant women may experience. Drawing on intersectionality theory and on Ratna Kapur’s concept of ‘normative boundaries of belonging’, the article puts forward the notion of ‘intersecting borders of inequality’. The notion interrogates three types of borders that may construe migrant women as outsiders or lesser members in society: formal, normative and practical borders. The article demonstrates that scrutinising the ways in which these borders intersect illuminates some of the structures disadvantaging migrant women and invites imagining wider responses to tackle these disadvantages. To illustrate these arguments, the article uses examples of the European Court of Human Rights’ case law.
Introduction
In producing or reinforcing ‘relations of dependency and power’ through immigration controls, 1 States may disadvantage migrant women in enjoying human rights and engender conditions ripe for human rights abuses. Think of immigration norms that make domestic workers – who in practice are often women – dependent on their employers for legal status. 2 Employers may take advantage of the dependent or precarious status produced by immigration norms to control and exploit domestic workers. 3
Recent human rights scholarship has investigated whether, to what extent, and how international human rights law may tackle the inequalities underlying this kind of human rights abuses. Human rights scholars have discussed the role of immigration norms and practice in creating or aggravating these inequalities as well as the (in)capacity of international human rights law to challenge these norms and practice. 4 Importantly, some of these scholars have exposed the gendered nature of immigration norms regulating migrant women’s relations in different spheres, including work and family relations. 5
Building on these scholarly efforts, this article interrogates how the borders sustained by immigration controls intersect with other borders to disadvantage migrant women in their enjoyment of human rights. In particular, it scrutinises the borders that formally, normatively, and practically construe migrant women as outsiders or lesser members in society. In making these arguments, the article borrows Ratna Kapur’s notion of ‘normative boundaries of belonging’. 6 These boundaries are sustained by dominant societal assumptions about sexuality, family and culture that inform law’s responses to migrants. 7 The arguments further draw on intersectionality theory, 8 understood as interacting structures of inequality (for example, sexism, racism, immigration norms) rather than as interacting categories of identity (for example, sex, race, migration status). 9 It is therefore ‘structural intersectionality’ 10 that informs the arguments in this article.
The article demonstrates that the notion of intersecting borders of inequality has the ability to put disadvantaging structures front and centre in the analysis of migrant women’s human rights claims. The notion does not only illuminate the State’s role in creating, reproducing and reinforcing these structures. It additionally widens the set of responses to tackle the State’s contributory role to disadvantage. To illustrate how intersecting borders of inequality may work in practice, the article uses cases of the European Court of Human Rights (the ECtHR or the Court) as examples.
‘Intersecting borders of inequality’
This part introduces the notion of ‘intersecting borders of inequality’ as a lens to see and challenge the disadvantages underlying the violations of migrant women’s human rights. The notion does not take identity categories such as sex, race, and migration status as the starting point in the human rights analysis. Rather, it turns the disadvantaging structures themselves into points of departure. 11 For example, the focus is not sex but sexism, not migration status but immigration norms. Through the lens of intersecting borders, the analytical gaze thus starts moving outwards-inwards: from the disadvantaging structures to the individual. Only then does it move inwards-outwards and may continue moving back and forth. The individual, therefore, does not disappear from the scene but is viewed in context.
Locating the analytical point of departure in the structures themselves offers several benefits. It ensures that the human rights analysis does not focus exclusively on individual attributes, identity or group characteristics. In so doing, it encourages interrogating what may be wrong in society and its institutions rather than what may be ‘wrong’ with the group or individual. 12 The approach thus facilitates scrutinising something feminists like Martha Fineman advocate for interrogating: the role of the State in (re)producing vulnerability and disadvantage. 13 It additionally escapes falling into stigmatising views of vulnerability and disadvantage. 14 In making structures the starting point of the inquiry, the proposed lens shows how vulnerability and disadvantage are societally shaped and not natural attributes of certain individuals or fixed identity dimensions of certain groups. As migration scholars put it, ‘migrants are not naturally vulnerable; rather the state is deeply implicated in constructing vulnerability through immigration controls and practices’. 15
To see these disadvantaging structures, the notion of borders is analytically useful because it suggests something that lies outside the individual or group and thereby directs the gaze outwards. Moreover, borders evoke in their most basic sense lines and divisions through which ‘[h]ierarchies of belonging and of exclusion’ 16 may be created, reproduced or reinforced. Borders are not here understood as territorially fixed lines. 17 They are understood as shifting and as following and surrounding people inside State territory. 18 The language of borders, moreover, has a strong symbolic appeal in the sphere of migration. After all, border control seems to be the core business of immigration norms and practice.
The borders that may most obviously disadvantage migrant women are formal borders, which are here understood as State norms and practices establishing the conditions of entry and stay 19 as well as the requirements of formal citizenship. These borders do not operate only at the territorial edges of a State. 20 They operate beyond these edges, both outside and inside State territory. 21 They follow people inside, 22 as they try to access employment, health care, education and justice. 23 Formal borders thus create, police, and enforce people’s migration statuses. Migration status, in turn, delineates not just entry and residence rights but also rights in family, work, political and economic spheres. 24
Borders in this formal sense, however, are not the only ones that may limit human rights enjoyment for migrant women. In fact, formal borders may not always come into play. Immigration norms or practice may authorise a woman to enter, reside, and work in another State territory temporarily or permanently. Yet the limited advantages that these formal borders allow 25 will not necessarily shield her from the disadvantages other borders may cause. 26 Formal borders may intersect with other borders, including practical ones. Practical borders, for present purposes, are those that arise from the factual reality of migrating. Examples include lack of (or limited) social networks in the receiving State and language skills different from those of the majority in this State.
Formal borders may also intersect with subtle borders that are difficult to spot. Kapur’s notion of ‘normative boundaries of belonging’ offers an insightful lens to recognise some of these subtle borders. According to Kapur, conformity or non-conformity with dominant societal assumptions about sexuality, family, and culture draws the lines between ‘belonging and non-belonging’ and renders some people non- or lesser members of society. 27 To use one of her examples: normative sexuality may be ‘heterosexual, marital, monogamous, reproductive, and non-commercial’. 28 Those whose sexuality deviates from these normative expectations are more likely to be denied the rights and benefits linked to citizenship. 29
The next parts illustrate the ways in which attention to these intersecting borders – formal, practical and normative - facilitates recognising the inequalities underlying the human rights violations migrant women complain of. ECtHR cases are used for illustrative purposes. In nearly all these cases, the ECtHR finds in the applicants’ favour. In some of these cases, it acknowledges some structural barriers (especially formal borders). Despite recognising some of the barriers underlying the violations, the recognition is rather ad hoc and tends to miss the practical and normative borders as well as the intersections between them.
This article does not, however, aim to make generalisable descriptive claims or to critique the Court’s approach in its case law concerning migrant women. Nor does it intend to offer a comprehensive analysis of this area of the ECtHR’s case law. The aim, rather, is to use these cases to illustrate the normative benefits of applying an intersecting borders frame in human rights analysis. As the examples below demonstrate, the frame gives a fuller and more systematic picture of the intersecting disadvantages migrant women may experience and of the State’s role in creating, reproducing or reinforcing these disadvantages. The examples further show that, as a result, intersecting borders may help to identify additional human rights violations, to develop State obligations with transformative potential or to refine the content and scope of existing obligations.
The borders behind individual ‘choice’ and ‘failure’
The cases discussed below show how, viewed through the lens of intersecting borders, migrant women’s (in)abilities are not merely the result of their personal choices or failures. Their individual (in)abilities, rather, are shaped by different inequality structures sometimes created, reproduced or reinforced by the State.
3.1. Beyond personal choice
Inattention to the role of intersecting borders may lead to blaming the migrant woman entirely for the disadvantage she experiences while deflecting the blame from the State. Haydarie and Others v. the Netherlands illustrates how blindness to these borders serves to construe the applicant’s disadvantage as her choice. 30 The case involved an Afghan woman legally residing in the Netherlands with one of her children and with her disabled sister. 31 The Dutch authorities rejected her request to reunite with three of her other children because she lacked the independent income required by immigration rules to support her children (she relied on welfare benefits). 32 The domestic authorities would have not maintained the income requirement in her case had she made ‘serious efforts’ to secure a job during a period of three years since she became entitled to work. 33 At Strasbourg, one of the applicant’s claims was that, in assessing her situation, the Dutch authorities had not given weight to her ‘unpaid care labour’ for her sister. 34 In declaring her Article 8 ECHR claim inadmissible, the ECtHR noted that the applicant had not applied for any jobs and instead ‘preferred to care for her wheel-chair bound sister at home’. 35 The Court added that she could have entrusted ‘the care of her sister to an agency’. 36
In assessing whether the applicant had made ‘serious efforts’ to find a job, both the domestic authorities and the ECtHR reproduce a normative border and ignore a practical one. They reproduce the normative border that assumes that unpaid care work is inactive and unproductive. As feminist scholarship has shown, these borders are gendered given that caretaking continues to be largely performed by women. 37 Fulvia Staiano insightfully explains the assumptions at play in Haydarie: ‘Unpaid care work…was considered by the national authorities not only as synonymous with inactivity and passiveness, but also as mere choice to personally carry out tasks which could well be outsourced to aid-providing bodies’. 38 Under these assumptions, care work is therefore viewed as ‘a free choice not to perform actual work.’ 39 Carers, in turn, are viewed as ‘willingly inactive individuals […] unworthy of accessing rights and entitlements reserved to those devoted to “actual” work’. 40
Recognising the State’s role in reproducing these normative borders will probably not lead to border-dismantling demands on States. A supranational human rights court, in particular, may understand that it is for States to determine what counts as work for migration purposes. Yet awareness of the State’s role in reproducing such gendered borders may encourage imagining alternative, less intrusive demands. States, for example, may be asked to justify the application of these borders in the particular case. 41 If unjustified, they may be requested to mitigate the disparate consequences on the individual caretaker. States may be further demanded a procedural obligation: to consider the effects of not regarding care as proper work on the individual (female) caretaker/job seeker. In fact, an objective and complete assessment of Haydarie-like circumstances cannot ignore these effects. As Fineman argues, ‘[c]aretaking labor interferes with the pursuit and development of wage labor options. Caretaking labor saps energy and efforts from investment in career or market activities, those things that produce economic rewards’. 42
The other border operating to condition Haydarie’s efforts to find a job is the practical border of language. The State tacitly reinforces this practical border by ignoring its disadvantageous impact on an individual’s job search efforts. The active attitude that the State expected from the applicant assumes that she already speaks the language. The ‘serious efforts’ required from her included actively looking for work, registering at employment agencies, responding to vacancy openings, writing job applications, and carrying out ‘labour-market oriented studies’. 43 The State further reinforces the practical border by ignoring the applicant’s language efforts in order ‘to improve her chances on the labour market’. 44 Four months after Haydarie became entitled to work, she had passed a first Dutch exam and nine months later another one. 45 In becoming aware of the operation of this type of border, supranational human rights adjudicators may demand procedural State obligations. States may be asked to assess whether language barriers condition the individual’s job-search attitude and whether individual efforts to overcome language barriers count towards ‘serious efforts’ to find a job.
3.2. Beyond personal failure
Inattention to the intersecting borders at work may also lead to understanding migrant women’s disadvantages as the result of their personal failure. In the first two cases now discussed – Moser v. Austria 46 and Soares de Melo v. Portugal 47 – the States cast the women as responsible for the inadequate material conditions that endangered their children’s welfare. In these two cases, the States create and enforce formal borders. In turn, these formal borders interact with practical borders reinforced by the Austrian State and with normative borders reproduced by the Portuguese State. The interacting borders serve to justify drastic State intervention: removal of the children from their mothers. In the third case examined under this sub-heading, Zhou v. Italy, 48 formal borders are not work. However, practical borders are reinforced and normative borders reproduced by the State. The interaction of these borders serves to construe the woman as parentally incapable and to justify similar radical interference with her right to family life.
The applicant in Soares de Melo was a national of Cape Verde. 49 She was unemployed and virtually the sole caretaker of ten children, as the father was often absent from the household. 50 Following her failure to comply with an agreement reached with the Children and Youth Protection Commission, 51 seven of her youngest children were placed in different institutions for adoption. 52 The agreement included obligations to look for a job, to improve her children’s housing conditions and send them to school, to regularise her status in Portugal and to undergo sterilisation. 53 The applicant in Moser, in turn, was a Serbian national authorised to live and work in Austria until 1997. 54 In 1999, however, a five-year residence prohibition was issued against her for illegal employment. 55 Later on the same year, she married an Austrian national and, around six months later, gave birth to a child who was separated from her and whose biological father was allegedly not her husband. 56 The child’s custody was transferred to a welfare institution and his care entrusted to foster parents 57 because the applicant lacked adequate accommodation, financial means and a clear residence status. 58
In both Soares de Melo and Moser, the ECtHR found in favour of the applicants’ Article 8 ECHR right to respect for family life. The lack of response by social services to Soares de Melo’s material distress and the introduction of sterilization as a condition to keep her parental rights influenced the Court’s decision against Portugal. 59 The ruling against Austria followed the Court’s finding of several failings at the domestic level. The Austrian authorities failed to consider all possible alternatives to custody transferring; to ensure regular contact between the applicant and her son following their separation; and to sufficiently involve the applicant in the decision-making process. 60
In the two cases, formal borders work in a similar way. The Austrian authorities understood that Moser’s ‘unstable’ situation ‘was not enhanced by her unlawful residence in Austria [that] did not entitle her to financial aid’. 61 The Portuguese authorities noted that the irregular status of some members of the Soares de Melo family was a barrier to social benefits. 62 Both the Austrian and Portuguese authorities regarded irregular migration statuses as the source of ineligibility for State-sponsored benefits. Thinking of what is going on in Soares de Melo and Moser from the perspective of formal borders reveals that the real source of ineligibility is not the applicants’ statuses. The real source is migration law that construes certain categories of migrants as irregular and that does not entitle them to certain State-sponsored benefits. From this perspective, the role of the State in reinforcing the applicants’ precarious material conditions becomes visible. In rendering them ineligible for State support, the Austrian and Portuguese States denied them access to resources that might have enabled them to improve these conditions for the children.
Now, recognising the State’s role in disadvantaging some individuals through formal borders may not lead international human rights law to demand States to reconsider, let alone dismantle, these borders. Having ‘long been a key site of national assertions’, 63 migration is a sphere in which States resist human rights demands 64 and in which international human rights law tends to defer to States. 65 States are often reluctant to acknowledge their contributory role especially in the context of irregular migration. 66 Yet illuminating the State’s role is an important step towards envisaging demands that may help alleviate disadvantage. States, for example, may be required to justify these borders 67 and, if unjustified, asked to mitigate their disadvantageous impact under certain individual circumstances.
The latter is what the ECtHR actually does in Soares de Melo and Moser. In Soares de Melo, the Court implicitly expected the Portuguese State to have substantively addressed the disadvantageous impact of formal borders on the applicant. The Portuguese authorities, the Court stated, had not tried to ‘fill in’ (‘combler’) the applicant’s material deficiencies by means of additional financial assistance aimed at covering the family primary needs and child day care. 68 In Moser, the Court tackled the negative impact procedurally: the Austrian authorities had failed to take measures such as ‘clarifying the applicant’s residence status’. 69 The demands made by the Court in the two cases illustrate ways in which a supranational human rights court may ask States to mitigate the disadvantages created by formal borders without asking reconsideration of these borders altogether.
The formal border in Moser interacts with a practical one: the applicant’s scarce family and social support networks. The option of placing the applicant’s child with relatives or other persons close to him was not in practice available in her case. 70 The State had not itself put in place this practical border. However, and like in Haydarie, it tacitly reinforced the disadvantage created by the lack of social support by ignoring its detrimental implications for the individual. States may be required to take into account the impact of this practical border on the individual’s capacity to offer adequate accommodation to their children. An objective and complete assessment of the individual’s circumstances cannot actually ignore this impact. Moreover, Sates may be asked to fully assess all possible alternatives before separating the child from the parent. In fact, the ECtHR expected the Austrian State to have explored all the possibilities that would have enabled the applicant and her son to remain together. 71 It turned out that placement in a mother-child centre was an option legally available to them. 72
The formal border in Soares de Melo intersects with two normative ones: coupled motherhood and nuclear family. These borders construe the applicant’s forms of family and mothering as ‘deviant’ and therefore as the ‘wrong’ types of arrangements to raise children. According to the Lisbon Court of Appeal, the fact that the applicant was separated from the children’s father was ‘enough to show moral negligence’. 73 The applicant is here negatively judged because she no longer had a relationship with the children’s father. The Supreme Court further holds her single-parent household to the ‘norm’ of the heterosexual nuclear family: ‘[t]here is a particularly dangerous situation when the biological family is unstructured, the father is absent from the daily life of the children and the mother shows great emotional and professional instability’. 74 The statement suggests that, without a father, the family is unstructured and that, without his support, the mother is unstable. The reasoning of the domestic courts shows that, despite longstanding feminist critiques, 75 the societal aspiration ‘to complete the “family” by the addition of a man’ 76 remains alive. Susan Boyd has shown how women may be penalised in child custody assessments for failing to live up to normative motherhood: ‘a “good” mother will do so in the context of a heterosexual, nuclear family model’. 77
Similar borders associated with normative motherhood play out in the last case examined in this part: Zhou v. Italy. This time, the expectation is that a woman will be ‘selflessly available to her children, taking primary care of them’. 78 Zhou exemplifies how, though formal borders may be absent, other borders may still work to the detriment of migrant women. The applicant was a Chinese national and single parent living and working full time in Italy. 79 It is unclear from the facts of the case whether she was living there legally. After day-care arrangements made by social services had failed, the applicant entrusted the care of her son to a couple in the neighbourhood while she was at work. 80 Social services disagreed with her choice of this couple and, without exploring further arrangements, reported the situation to the public prosecutor who in turn requested the opening of adoption proceedings. 81 Her son was placed for adoption, following an expert opinion declaring her incapable of exercising parental role. 82 The expert concluded that the applicant’s parental inability was due to a health condition developed during her child’s delivery and to her lack of time to care for him. 83
In finding a violation of her right to family life, the Court condemned the Italian authorities for not having made adequate and sufficient efforts to respect the applicant’s right to live with her child. 84 The State, according to the Court, should have taken measures to preserve the family link. 85 The Court accepted that the applicant was incapable of caring for her son and that her care inability was partly due to her health condition. 86 It noted, however, that the Italian courts should have helped her overcome the difficulties by means of adequate social assistance 87 and that the experts should have examined the possibility of improving her childcare ability. 88 Framed in these terms, the applicant’s parental inability is narrowly understood as arising exclusively from personal difficulties and the demands on the State as demands to ‘fix’ an individual inability.
Looking at Zhou through the lens of intersecting borders allows seeing that the applicant’s care inability was more broadly shaped by structural factors to which the State had contributed. The factors include practical borders inherent in the lack of family to count on for childcare and, as stated above, normative expectations about women’s role in the family. The two borders interact to construe the applicant as incapable of exercising her parental role and therefore as unfit to raise her child. There are several indications in the case that Zhou had no one to leave the child with. 89 In assessing the applicant’s situation, the domestic authorities ignored the impact of the lack of social or family support on her childcare capacity. In so doing, and like in Haydarie and Moser, the authorities implicitly reinforced the disadvantage created by these borders for the individual. As noted before, a complete and objective evaluation of the individual circumstances should consider the negative implications of this practical border. In addition, and as argued in Moser, States may be asked another procedural obligation: to evaluate all available support measures before radically breaking up the family.
While the practical border is ignored in the domestic assessment of Zhou’s situation, the normative border is enforced. The expert conclusions, on which the Italian courts relied to place the child for adoption, signal gendered expectations about women’s place and role in society. Zhou, according to the expert, was not capable of caring for her child in part because she ‘had no time to look after the child because of her work’ (‘elle n’avait pas le temps de s’occuper de l’enfant a' cause de son travail’). 90 Informing this conclusion is the gendered division of labour that expects women to stay home and undertake the primary role of childcare. Zhou is thus punished (her child is taken away from her) for transgressing normative motherhood: she is a ‘bad’ mother for placing work above childcare. Feminist critiques of child custody decisions in other jurisdictions have shown how ‘the ideal mother stereotype continues to play a role in favouring the “home-sphere” mother, which forces a woman to either adhere to the stereotype or risk losing her child’. 91
Both in Zhou and in Soares de Melo, the normative borders enforced by the domestic decisions implicitly consist of gender stereotypes that express and reinforce women’s inferiority in relation to men. Women are respectively considered as belonging in the home-sphere and as morally suspect without a male partner. Moreover, the stereotypes informing the domestic assessments of the applicants’ parental role are not innocuous. They serve to cast the applicants’ relationship with their children as deficient and to justify the drastic removal of their children. International human rights law has already recognised that subordinating stereotypes cannot justify interference with human rights. 92 Allowing States to rely on these stereotypes would imply accepting that discrimination is a legitimate objective for States to pursue. 93 Evidence of harmful stereotypes in domestic assessments of parental capacity may lead to additional violations of non-discrimination. States may not only be required to refrain from harmfully stereotyping in the individual case. They may be additionally demanded positive obligations to eradicate stereotypes in domestic decision-making. 94 The latter type of demand, especially, holds a transformative potential because it requires working towards dismantling discriminatory normative borders. 95
Normative borders, however, may not always consist of stereotypes that (re)produce the subordinate status of certain groups in society. Think of the above-discussed borders of nuclear family as proper family in Soares de Melo or paid work as ‘real’ work in Haydarie. They do not reflect discriminatory attitudes in and of themselves and may not necessarily be illegitimate to maintain. Yet these borders are not neutral: they reflect dominant cultural expectations that may have disparate consequences on those who fall short of such expectations. As seen earlier, then, States may be asked to either justify reproducing this kind of normative borders or to mitigate their disparate impact on some individuals and groups.
The borders behind individual abuse and individual vulnerability
This part discusses two high-profile cases to illustrate how, viewed through the lens of intersecting borders, abuse and exploitation of migrant women are not seen as the mere result of individual abusive behaviour. Nor are they seen as the exclusive product of the individual victim’s vulnerabilities. Instead, abuse and exploitation are understood as shaped by the complex interaction of structures that the State may create, reproduce or reinforce.
4.1. Beyond the evil employer
The first case, Siliadin v. France, 96 offers an opportunity to reflect on how formal and practical borders may engender exploitation conditions and on how normative borders may negate State protection against exploitation. Siwa-Akofa Siliadin, a Togolese woman, arrived in France with a tourist visa when she was fifteen years old to work at a couple’s home until her plane ticket had been repaid and her migration status regularised. 97 In reality, however, she became an unpaid domestic worker. 98 The couple ‘lent’ her to another couple, for whom she carried out home care and childcare tasks for several years without payment, without identity documents, without a day off, and in poor living conditions. 99
The Court ruled that the French law had not offered her effective protection due to the lack of provisions specifically criminalising forced labour and servitude,
100
both of them prohibited by Article 4 ECHR. The Court looked at the applicant’s age and migration status to assess whether her situation amounted to forced labour. In establishing whether she worked under ‘the menace of penalty’ – one of the features characterising forced labour in international labour law
101
– the Court concluded that her situation was equivalent: She was an adolescent girl in a foreign land, unlawfully present on French territory and in fear of arrest by the police…Mr and Mrs B. nurtured that fear and led her to believe that her status would be regularised.
102
The Court’s reasoning in Siliadin further signals the operation of a practical border: minimal social networks to count on for support.
110
In determining whether the applicant’s services amounted to servitude, the Court says: As a minor, she had no resources and was vulnerable and isolated, and had no means of living elsewhere than in the home of Mr and Mrs B.…She was entirely at Mr and Mrs B.’s mercy, since her papers had been confiscated and she had been promised that her immigration status would be regularised, which had never occurred.
111
A third border operating in Siliadin is ‘the normative assumption that women’s primary work is in the home’. 113 Lurking behind the low value given to domestic work in many societies 114 are perceptions that this work flows ‘naturally from women’s genetic endowments rather than knowledge and skills acquired through education’. 115 From the information available in the Siliadin judgment, it is hard to tell whether domestic work enjoyed such a low societal value and legal protection in France. Yet the reasoning of one of the domestic courts reveals that these gendered views of domestic work played out in the particular case. The Versailles Court of Appeal concluded that the applicant had not worked in conditions incompatible with human dignity because ‘carrying out household tasks and looking after children [is] the lot of many mothers’. 116 Implicit in this statement is, like in Zhou, the kind of normative border that naturalises ‘women’s roles within the reproductive sphere as housekeepers, maids, and caregivers’. 117
Siliadin, however, was not threatening but upholding this normative border. Contrary to Zhou, she was carrying out ‘women’s work’. Her conformity to normative borders serves to naturalise her alleged exploitation and to undermine her access to justice. The Versailles Court of Appeal does not see the exploitative conditions in which Siliadin worked because it assumes that her tasks are in any event the kind of tasks women carry out in their houses. The assumption that carrying out housework and child care is, or ought to be, women’s role in the family blinds the French court to the fact that Siliadin was performing these tasks for someone else’s children without payment. The normative border implicitly works to close off any investigation into her actual work conditions and, ultimately, to legitimise her work as free and exploitable. As discussed in Zhou and Soares de Melo, normative borders consisting of stereotypes such as this should be considered illegitimate reasons to restrict human rights and lead to analysing the case as one of discrimination. Additionally, recognising these borders and their role in undermining women’s equal access to justice may lead to demanding States preventive obligations such as judicial training to combat harmful stereotypes. 118
4.2. Beyond the evil trafficker 119
The last case discussed in this article, Rantsev v. Cyprus and Russia, 120 exemplifies how normative and formal borders may intersect to reflect and reinforce power imbalances between (female) migrant workers and their (male) employers. Combined, these borders sustain the inequalities that may give rise to exploitation and other abuses. 121 The case, moreover, shows how formal borders may create regular routes to enter, reside, and work within a State territory albeit precariously and unsafely.
Rantsev concerned the death, under suspicious circumstances, of Oxana Rantseva, 122 a Russian woman admitted to Cyprus to work in a cabaret on an artiste visa. 123 Following Cypriot immigration policy requiring prospective employers to procure the visa for artistes, 124 the owner of the cabaret where Oxana Rantseva was going to work obtained an artiste visa on her behalf. 125 A few days after she started working, she tried to escape but was tracked down by her employer who took her to the police and requested her detention and deportation for being ‘illegal’. 126 The police established that she was not ‘illegal’ and asked her employer, who was considered ‘responsible for her’, to pick her up. 127 Cypriot immigration policy required cabaret managers to report to the migration authorities if artistes did not show up for work or breached the contract otherwise. 128
The Court found, among other human rights violations, that Cyprus had breached Article 4 ECHR, which it read as prohibiting human trafficking. 129 It critiqued the artiste visa scheme for not offering ‘practical and effective protection’ against trafficking and exploitation. 130 It also reproached the Cypriot authorities for failing to take measures to protect Oxana Rantseva despite ‘a credible suspicion’ that she might have been trafficked or exploited. 131 The Court’s Article 4 ECHR reasoning turns full attention to the role of formal borders in encouraging abusive employment relationships for female migrant artistes. The Court finds unacceptable measures encouraging cabaret owners ‘to track down missing artistes or in some other way to take personal responsibility for the conduct of artistes’. 132 Moreover, it considers that one of the main police failures was asking the employer to collect Oxana Rantseva instead of releasing her. 133 In interrogating formal borders, this kind of reasoning thus spotlights one of the mechanisms encouraging trafficking and exploitation in Cyprus: strong dependency of artistes on their employers. 134 The reasoning illuminates how formal borders may structure migrant women’s employment relations unequally and precariously. 135
Sustaining the formal border in Rantsev are normative borders. Contrary to the previously examined cases – where the domestic authorities’ language signals the normative borders at work – in Rantsev these borders are more difficult to recognise. 136 Feminist scholars, however, have thrown light on these borders by applying an anti-stereotyping approach, 137 an approach that may help identify many but not all normative borders. Informing both the requirement that the agent procured the artiste visa, and the police understanding that the artiste was under the agent’s custody was the gender stereotype of women as ‘the (sexual) property of their employers’. 138 The immigration requirement and the police attitude suggest that ‘the agents in this system are the (male) cabaret owners and not the women themselves’. 139 The immigration rules requiring cabaret owners to deposit money in a bank to cover artistes’ possible repatriation expenses 140 further reinforce the view that the former ‘owned’ the latter. 141
Unlike in most of the cases examined up until now – in which normative borders inform domestic authorities’ decisions – in Rantsev normative borders underlie immigration policy itself. Moreover, the normative borders are practically enforced through the police attitudes discussed above. Looking at Rantsev through the intersection of formal and normative borders reveals the State’s contributory role to the exploitation of migrant artistes in two ways: by formally establishing a strong dependency on their employers and by normatively reproducing their commodification (women as objects managers can dispose of).
One important implication flowing from seeing Rantsev through the intersecting borders lens is that the problem is not framed as one of an individual abusive employer or trafficker. The problem, instead, is understood as partly shaped by immigration policy and cultural attitudes that render more than one woman vulnerable to trafficking and exploitation. 142 Framing the problem more broadly allows for envisioning responses beyond criminal punishment of individual perpetrators. In fact, in Rantsev, the ECtHR frames positive obligations quite broadly. These obligations are aimed not just at punishing traffickers and protecting victims but also at preventing trafficking. 143 One of the obligations asked by the Court actually interferes with State immigration control prerogatives. State immigration rules, the Court notes, ‘must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking’. 144 This kind of demand may push States towards transforming those formal borders at the root of vulnerability to trafficking. 145 Formulated in such broad terms, the demand in principle leaves States a margin to decide how to address these concerns. In circumstances like those of Rantsev this could mean amending the artiste visa scheme so as to unwind artistes’ dependency on their employers. 146
Conclusion
In launching the notion of intersecting borders of inequality, this article has sought to draw attention to three types of borders that may disadvantage migrant women in enjoying human rights: formal, normative and practical borders. Rather than claiming that these are the sole disadvantaging barriers migrant women may face, the article hopes to invite reflection on other borders.
Through the lens of intersecting borders of inequality the bad things that happen to many migrant women are no longer viewed as the mere result of individual choice, vulnerability, failure, abuse, or misfortune. These bad things are understood as shaped by constraining practical realities, by normative expectations about family, parenthood and sexuality, and by immigration norms that produce unequal power relations. In essence, the notion of intersecting borders facilitates understanding that the disadvantages migrant women may face are not simply individual but structural.
Focusing on the borders that cross us rather than on who crosses these borders 147 may further help recognising the inequalities that other individuals or groups standing at similar intersections may experience. One can perfectly imagine a migrant man trapped in the kind of circumstances Siliadin was trapped because of formal and practical borders: dependence on an employer for regularising his migration status and absence of family networks to turn to for support. Imagining a non-migrant woman in the same circumstances as Zhou is not hard either. An Italian single mother who moves to another part of the country may find herself without family to count on for day care support and be expected by the authorities to give up her work to take care of her child.
Emphasising the borders that burden some but not others also encourages imagining responses that may go beyond ‘fixing’ the individual. Some of these responses may hold a transformative potential. Think of State obligations to work towards eradicating harmful stereotypes from domestic decision-making by, for example, training decision-makers. Think also of the kind of State obligation articulated by the ECtHR in Rantsev: address immigration norms that encourage, facilitate or tolerate trafficking. Other State obligations may more modestly seek to prevent or mitigate – substantively or procedurally – the detrimental implications of borders for certain individuals. Mitigating obligations come to mind specially to address the disadvantages caused by practical borders that States have not directly contributed to or by normative borders that States may legitimately sustain. Haydarie, for instance, offers an occasion to reflect on how States may be demanded a procedural duty to address these borders: to take into account the limitations caused by language barriers and unpaid care work on an individual’s job-seeking efforts.
Dismantling borders of inequality may not always be possible. States do not necessarily create practical borders such as those arising from insufficient family or social networks. Normative borders, in turn, are deeply ingrained and normalised in society. They are therefore difficult to recognise, let alone change. At times, normative borders operate discreetly, even silently, and certainly diffusively across the kind of domestic decisions that tend to escape attention: those of administrative bodies and lower courts. Even those normative borders that may be easier to spot given the use of discriminatory language (for example, the coupled motherhood border used to question Soares de Melo’s morality) cannot be dismantled overnight. Demolishing these borders requires deep changes in dominant cultural attitudes. Transforming formal borders comes with a different set of challenges, as immigration control is considered ‘a central substantive aspect of sovereignty’. 148 The tensions between international human rights law and State sovereignty take on a particular dimension in the context of migration. 149 In this area, human rights do not only challenge ‘States’ relative jurisdictional independence from international authority [but also] States’ plenary territorial powers’. 150
The role of supranational human rights courts like the ECtHR in addressing the borders of inequality is actually limited, if not marginal. In fact, as Haydarie exemplifies, a supranational human rights court may reproduce and reinforce these borders. It is thus vital to ‘remain realistic and somewhat skeptical about the importance of any law, national or international, in achieving social change’. 151 Scepticism, however, does not mean that attention to formal, normative and practical borders is futile. Attention to these borders may not just discourage (international human rights) law from reproducing and reinforcing disadvantage. It may encourage (international human rights) law to remain alert to its potential to fix these borders and to seize opportunities to comprehensively tackle disadvantage within this potential.
Footnotes
Acknowledgements
Lecturer in Human Rights, The Helena Kennedy Centre for International Justice, Sheffield Hallam University and Associate Postdoctoral Research Fellow, Human Rights Centre, Ghent University. I would like to thank Eva Brems, Valeska David, Ellen Desmet, Vladislava Stoyanova and three anonymous reviewers for their generous comments on earlier versions of this article. I wrote this article while I was a visiting scholar at Melbourne Law School.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
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