CONFERENCE REPORT

The following is a highly personal and impressionistic synopsis of discussions that took place during the Gendered Borders Conference, held at the Vrije Universiteit, Amsterdam, September 30 to October 2 2004. Since the talks presented at the conference and a selection of workshop papers are to be published, this report focuses on the discussions that took place in the workshops and in the plenary sessions. It is based on my own notes taken during discussions, and on the reports brought back to me by the workshop moderators, each of whom had been asked to name two major points of discussion that had emerged in her workshop.

At the heart of many discussions were points of debate that Jackie Bhabha had already put forward in her key-note speech at the start of the conference:

- The economic, political and ideological tensions that exist between North and South; East and West; particularly the pitfalls of oriëntalism in western feminist legal discourse concerning women fleeing Third World countries

- Immigration lawyers’ reluctance to address the issue of state responsibility in curbing threats to women’s autonomy in

o exploitative transnational labour relations

o repressive transnational family relations

At the core of all these questions lies the issue of how to define the problems at hand and, subsequently, the related issue of state intervention: should the state intervene? If so, how, and what are the implications for immigration law and policies?

While the discussions at the conference were highly theoretical, touching on such fundamental themes as the legal subject, sovereignty and jurisdiction, they also generated topics for further discussion and concrete suggestions that could be worked out in a following meeting. These are listed at the end of this report.

Issues of definition

Definitions formed a central issue in the combined workshops 2 and 5 on migrant women, trafficking and transnational labour relations. Two paradigms emerged. Should undocumented women working in Europe be defined in terms of slavery – focussing attention on the conditions surrounding the most extreme forms of exploitation and raising the question as to how to combat such exploitation – or should these women be defined as legal subjects – focussing on the limited repertory of rights that they can appeal to and raising the question as to how this repertory can be extended and made more effective. In workshop 7, on immigration law as gendered violence, definitions and representations also formed a focus of debate, particularly in reference to the term “victim”. What do we mean when we describe women as victims? These discussions touch on a point raised by Ratna Kapur in her talk, namely if we shouldn’t start thinking about immigration law less in terms of national security and more in terms of transnational labour.

Although the issue of differing paradigms was not resolved, one point was agreed on in both workshops 2/5 and 7 – and in workshop 6 on migrant domestic workers as well – : if any improvement is to be reached in the condition of migrant women workers, it is essential that they first acquire legal status. Without legal status, migrant women are severely limited in their agency and cannot mobilize any legal remedies against an exploitative situation.

However, legal status is in and of itself not enough to resolve all the issues surrounding women on the transnational labour market. In workshop 6 on migrant domestic workers the point was raised that the division of labour in the reproductive sphere is shifting from being a primarily gender issue towards becoming more of a (racialised) class issue. One of the results has been that attention has been deflected from feminist debates concerning the social value of care labour, the pressures it places on women’s time, its relevance for the quality of life, and the role that state and/or market could and should play in collectivizing respectively commodifying care. These issues remain highly relevant, and still must be addressed, albeit in a new transnational and racialised context. Similarly, in the combined workshops 2 and 5 on migrant women, trafficking and transnational labour relations, the point was raised that sex, like care, is traditionally associated with the unpaid private sphere, but that it too has become increasingly commodified. The commodification of both care and sex work has generated transnational service industries that operate largely beyond the reach of national labour regulation. These developments must be addressed if one wishes to advance proposals for state intervention in the interests of the women involved.

Women’s autonomy within family relations was the dominant theme in the three remaining workshops: number 1 on gendered violence and refugee law; number 3 on gender, culture and immigration law and number 4 on family bonds and immigration law.

In workshop nr. 1 on gendered violence and refugee law, a major point of discussion centred around the way in which women are defined as refugees. Often this is done in terms of culture and tradition. In doing so however, we run the risk of reinforcing prejudices concerning the backward “rest” vis à vis the supposedly more progressive “West”. Moreover, such discourse, by defining certain social practices as tradition, precludes the possibility that these practices may in fact be contested, and masks the agency of those engaged in resisting them. Could we avoid these pitfalls by redefining women refugees as, for example, actively involved in struggles to challenge power relations within the private sphere? By applying to them the old feminist adage: the private is political?

The discussion in workshop 4 on family bonds and immigration law related to a point raised by both Betty de Hart and Annie Phizacklea in their talks, namely that in discourse surrounding both family and labour migration, women tend to be defined as extensions of a family unit, and not as independent persons with autonomous needs and desires.

This point raises the familiar feminist issue of how to relate women’s involvement in interdependent family relations to the discourse of citizenship. In the past, a man’s claim to citizenship was not solely individual, but included him as someone engaged in family responsibilities towards a partner and children. Women’s claims to citizenship at the time were strongly related to those of their fathers or husbands. As women gained access to citizenship in their own right, the modes of inclusion shifted. Now, paid labour in the male-dominated productive sphere seems to have become the primary social vector to citizenship, particularly in its emancipatory sense as a mode of belonging. More than in the 1950’s and 1960’s, men and women are included in the concept of citizenship as economically productive individuals, not as social beings involved in family obligations – an issue that was raised in both Betty de Hart’s and Linda Bosniak’s talks.

How can and should women engage with the current discourse of citizenship? To what extent for example should an individual’s moral involvement with family members be related to this discourse?

Discussions surrounding the tension between women’s autonomous rights and their rights as family members, and concerning the pro’s and cons of regulating labours of love – be they paid or unpaid – address the fact that women are individuals but, at the same time, deeply involved in normative structures of interdependency and belonging. These morally defined structures intersect in specific ways with politically defined structures of belonging – not in the least with the concept of national citizenship. Can a discourse of citizenship be truly inclusive if it ignores the involvement of individuals in reproductive social relations? And: as both the commercial and morally founded variants of reproductive social relations become increasingly transnational in scope, can a nationalist concept of citizenship suffice?

A related question raised by Ratna Kapur in her talk was that of normative assimilation. To the extent that family norms do play a role in regulating access to residence status and, in the end, citizenship, this also implies exclusion on normative grounds. To what extent do the underlying morals of immigration law also explain the reluctance to include commercialized care and sex work as vectors to residence status and, eventually, citizenship? Put in more general terms: which types of labour relations and which types of interdependent, care and sex relations are implicitly accepted within the normative sphere of the nation, and which are not, and how do these distinctions affect women involved in transnational social relations?

Issues of implementation

Questions of national belonging and citizenship are closely linked to the issue of jurisdiction. Which normative systems regulate which women’s agency in specific transnational contexts? Where is national law applied and where is it withheld; where is regulation explicitly delegated to non-state actors and when does national regulation bow to international norms? To what extent are such distinctions gendered, and, to the extent that they are, what are the implications for women? In her talk, Judith Resnik made clear that determining jurisdiction is a highly political process. Many of the more practical discussions that took place during the Gendered Borders conference had to do with influencing that process.

Broadening the repertory of migrant women’s rights as workers was an important point of discussion in workshop 6 on migrant domestic workers. The point was made that the UN migrant workers’ convention offers important rights to both documented and undocumented migrant workers, and that ratification of this Convention is one point that can be acted on. Another point that was raised, was the possibility of mobilizing state representatives from migrant women’s countries of origin to apply pressure upon the national governments of their countries of destination. Annie Phizacklea’s account of migrant domestic workers’ struggle for regularisation provided some more concrete examples of how transnational regulation of migrant women’s labour might translate into practice – and also of the tensions and contradictions this implies: a national trade union that supports undocumented domestic workers; a transnational organisation of domestic workers campaigning for changes in national laws; national politicians who agree to open up the national labour market (a little) to migrant domestic workers the same day they decide to close down national benefits systems for asylum seekers.

Although much work done by women is not legally recognized as labour, and even when it is, implementation of protective measures can raise problems, state protection of workers’ rights per se is grounded in international law and has been implemented to a greater or lesser extent in all European legal systems. Similar legal protection of individuals within family relations however is still highly controversial.

In both workshop 4 on transnational family bonds and immigration law and workshop 1 on gendered violence and refugee law, discussions focussed on the issue of women’s autonomy within two closely related normative spheres that each claims immunity from state intervention: the family and cultural tradition. In the sphere of international law, CEDAW is probably the only instrument that explicitly addresses women’s individual rights within the private sphere. Other instruments of (international) law could however be interpreted in such a way as to provide similar protection. An example discussed in workshop 1 was the possibility of interpreting and applying the UN Convention Against Torture such as to include the issue of domestic violence. In workshop 4 discussion revolved around the way rules regulating family migration tend to treat the family as a discrete entity, offering little or no autonomy to foreign family members with dependent status. Can we think of forms of state intervention that would provide migrant women direct access to education, jobs and public services, independent of their sponsor?

Some national regulations have already been introduced to protect women’s individual rights – for example via gender guidelines for evaluating refugee claims, or via special provisions to grant migrant wives independent status in the event of domestic violence. However, implementation often proves to be a problem. Officials are either insufficiently aware of these rules, or reluctant to apply them. Questions of proof or rules of procedure can provide formidable barriers for the women involved. Lawyers and judges too do not always provide the measure of control that is needed. This was a point of discussion in workshop 3 on gender, culture and immigration law. In the combined workshops 2 and 5 on migrant women, trafficking and transnational labour relations, the point was made that measures that have been ostensibly introduced to protect women against exploitative situations, have on the whole proven been ineffective, due to the fact that in practice they have been applied primarily in the interest of facilitating prosecution, and not in the interest of the individual women involved.

Another point that was raised in a number of workshops was the flip-side to regulation. Legalization can act as a double edged sword. Where some will be included, through legalization, others may become even more emphatically excluded than they already were. Laws can empower individual women, but they also provide the state with instruments of control. For example: while state interference in family relations within the purely national context has become increasingly taboo, rules regulating family migration have proven to be an effective vector for growing state involvement in transnational family relations.

Like the concepts of law and citizenship, the concept of jurisdiction has two sides to it: that of creating mutually shared norms; and that of excluding external norms. Both processes can be enabling or inhibiting, depending on how the norms that are generated or excluded affect an individual’s agency. The process by which norms are generated or suppressed; included or excluded is highly political, and the politics involved are clearly gendered. In struggling to affect the way international migration is regulated, women will have to come to grips with these gendered politics on all levels: national, international and local.

Topics for further discussion

- To what extent can and should conflicts between individual women and “tradition” be defined in political rather than cultural terms?

- To what extent can and should the relationship between family and state be reconceived in such a way that national or international law can be more effectively mobilized to protect the autonomy of individual family members within family relations? To what extent does this imply responsibility, on the part of the nation-state, for individual family members who are not citizens of that state?

- To what extent should dominant notions of citizenship be redefined such as to include an expression of morally structured interdependency – in particular with family members – next to or in apposition to paid labour obligations and economic independence? That is, should the concept of citizenship include the right to hold domicile, to settle, within one’s country of nationality? How should such a right relate to transnational family bonds?

- What are the implications of the current redistribution of care and sex work, in terms of gender, race and class relations? What issues does this raises concerning the quality of life within contemporary societies on either side of the West/rest divide? How is this reflected in the ways in which the societies on either side of this divide define themselves? How does it affect the way in which these societies relate to each other? What role, if any, can immigration law play in addressing these issues?

Suggestions for concrete action

- To critically evaluate existing instruments of national, EU and international refugee law. Where possible and appropriate, to campaign for more gender sensitive interpretation and application of existing instruments – for example of the UN Convention Against Torture. Where necessary, to campaign for more gender sensitive regulation – for example more gender sensitive rules than provided for in the current EU guidelines on asylum procedure.

- To campaign on the national and the EU level for regulation providing for (better) access to legal status for migrant women on their individual merits, independent of family sponsor, employer or public prosecutor.

- To monitor existing national and EU regulations designed to improve the position of women refugees and migrants and, where necessary, to campaign for more effective implementation and/or more active control on the part of lawyers and judges.

- To campaign for implementation of the UN migrant workers’ convention as a means to expand the repertory of rights for both documented and undocumented migrant women working in Europe.

- To explore the possibilities that the optional protocol by CEDAW offers to mobilize this convention more effectively via individual complaints – for example to protect refugee and migrant women’s individual rights within their family relations, or to challenge the exclusion of migrant women’s work from the protection of national labour laws.

- To explore the possibility of decentralized implementation of human rights conventions – by municipalities for example, or trade unions – in the event national governments prove lax in doing so.

- On the other end of the jurisdictional spectrum, to further explore the possibilities the EU Court of Justice, the European Court of Human Rights and the UN Human Rights Committee in Geneva can offer women trying to challenge national rules of immigration law.

- To explore the role that the national governments of migrant women’s countries of origin might play in influencing the national laws of their countries of destination.