Autonomy and vulnerability in migration, through an intersectional and human rights-based approach
Padova – 5, 12, 18, 19 April 2023
Maria Grazia Giammarinaro
Lesson 1 – Women in migration. Intersectional vulnerability and agency
Women are around half of the migrant populations worldwide. The concept of “feminisation of migration” is not accurate. Between 1960 and 2005 the total number of migrants doubled worldwide, but the percentage of women was rather stable, and only slightly increased from 46,7% to 49,6%. What has significantly changed over the past decades, is the feature of female migration. There has been a gradual increase of women migrating alone or as heads of households, and not – as it was mainly in the past – with their husbands and families, or because of family reunification.
Most of women’s migration is successful migration. Their jobs, although often implying exploitation, enable women to achieve economic independence and realize their life and migration projects.
However, women’s migration always implies a certain degree of vulnerability, due to the lack of basic social protection usually offered by the family and social environment, and the lack of knowledge of language and social norms in the receiving country.
Vulnerability is a difficult concept from a feminist point of view. Traditionally, it has been used to designate a sort of inherent weakness of women. On the contrary, vulnerability is a human condition linked with exposure to wound, illness and losses (Butler), as opposite to “situational vulnerability”, deriving from inequalities, discrimination, and from the subordinated position of women in patriarchal societies.
Such a situational vulnerability must be assessed based on an intersectional approach, which takes into consideration (not every single discrimination factor but) the way a combination of different factors impacts the lives of women. Typically, in the context of the critical race theory, Kimberlé Crenshaw analyzed the intersection of color, gender and class. The same methodology is useful to analyze multiple elements affecting the lives of migrant women and contributing to shape their vulnerabilities and competences.
The Courts are not always aware of the intersectional nature of migrant women’s vulnerabilities. The European Court of Human Rights (ECtHR) has traditionally based its judgement on individual discrimination factors. Lately, although the Court did not use the term “intersecional discrimination” but the most traditional language of “vulnerability”, the ECtHR highlighted the existence of various vulnerability factors. In the case Chowdury and others v. Greece – however not involving women – the Court stated that a group of irregular workers from Bangladesh were employed in agriculture in the area of Nea Manolada in conditions amounting to forced labour and trafficking, which was considered a violation of article 4 of the European Convention on Human Rights (ECHR). The legal qualification of the case was based on an analysis of workers’ vulnerabilities, including their situation of destitution and irregularity. As a result, they were dependent on their employer regarding their survival; moreover, their irregular status implied risks of being deported and losing their unpaid salaries. In addition, they did not have any possibility to move freely or to leave the country, being undocumented. The Court assessed that, although the workers consented to exploitation, they did not have any real alternative and therefore their work performance could not be considered voluntary. On the contrary, it was exacted by their employer by abusing their position of vulnerability.
Significantly, the ECtHR used the intersectionality language in a case in which the Court recognized the violation (not of article 4 but) of article 3 of ECHR. In such a case, a woman of color was selling sexual services in Spain. She was beaten by the police, obliged to leave the place and called “black whore”, while other women did not bear the same treatment. In this case, directly related to elements traditionally pertaining to the gender and race intersectional discourse, the Court recognized the existence of an intersectional discrimination.
Equally, in 2020, the Constitutional Court of South Africa, in an innovative judgement, used the language of intersectionality in a case of a woman domestic worker, who drowned in the swimming pool of their employer, and whose daughter was denied compensation, on the basis of a legislation not recognizing this right to domestic workers and their families. The Court declared that such a law was in contradiction with the Constitution of South Africa, by recalling the subordinate position of women of color who performed domestic work during the apartheid. The Court concluded that the multiple intersecting forms of discrimination indicate that the indignity of domestic workers endure.
An intersectional approach enables scholars to understand that a combination of elements such as gender including LGBTQI+, color, class, ethnic or national origin, and others, not only contributes to cause discrimination, but also to strengthen agency, which can be identified in terms of resilience competence, or ability to embrace radical changes.
Taking into consideration such agency, the same distinction between forced and voluntary migration could be problematized. Except for extreme cases, there is always a decision at the beginning of a migration process. In fact, such a distinction has been instrumentally used by some governments to distinguish between deserving and undeserving migrants. Only migrants escaping situations of conflict and asylum seekers should qualify for social protection measures, as opposite to economic migrants. By problematizing that distinction, agency should be seen as a potential pertaining to all migrants, and to all migrant women, and should not be used as an excuse to deny social protection.
In other words, women should be seen as agents of their migration projects, not because their vulnerabilities should be overlooked, but because their vulnerabilities and their competences are inextricably linked.
Lesson 2 – Women’s works and their exploitation
Although no international instruments defined exploitation, a few national laws tried to formulate a definition, among them article 603-bis of the Italian Penal Code. While other legislations defined exploitation as work performed in conditions contrary to human dignity, the Italian legislator used a different technique, and included “indications” of trafficking.
Historically, women have been mostly employed in works shaped on traditional mansions women used to perform at home for free. Migrant women share the same situations, being – for example – more than 70% of all domestic workers in Italy. Domestic work is of course the paradigm of jobs in which most migrant women are employed, but also cleaning and lower mansions in the touristic industry and restoration share the same characters.
These jobs are considered as pertaining to the social reproduction sphere, which means that they are not considered productive works, or not even “real” works. The dichotomy between production and social reproduction have been criticized by many feminists, for it leads to undermine the social value of works performed in their vast majority by wome and underestimate their contribution to the general development of societies.
As a matter of fact, such a dichotomy, which establishes a hierarchy between productive and reproductive work, and places the latter at the bottom of social recognition, is one of the intersectional vulnerability factors leading to women’s exploitation.
An additional consequence is a double invisibility of women’s exploitation. In the so-called social reproduction sphere, exploitation is not only tolerated but even legalized by legislations not recognizing domestic work as a real work and depriving domestic and care workers of many rights which, on the contrary, are fully recognized to other workers. This was the case examined by the South African Constitutional Court (Lesson 1). However, the technique consisting of subtracting several rights from waged domestic and care work, compared to other employments, is widespread in national legislations.
On the other hand, women’s exploitation in the productive sphere is equally invisible, simply because women themselves are made invisible by a common sense according to which in such works only men are employed. This is the reason why women’s work in the agricultural sector has not been analyzed till very recently. As in other “productive” sectors such as textile, in agriculture precariousness and irregularity prevail, for example through the declaration of hours lower than real working time.
What is the reason why so many migrant women accept to work in situations of exploitation, and even severe exploitation? In fact, exploitation is accepted when a job, even in unfair conditions, enables women to realize, even partially, their migration projects. What we have called women’s agency shows its power, in terms of resilience, when women achieve a result, even when it is unsatisfactory.
Intersectional vulnerability factors include women’s exposure to violence in connection with their exploitation. Women workers can be blackmailed to be recruited in exchange of sexual services. The same can happen when they must receive their salaries. Women workers are exposed to sexual harassment and abuse when they are dependent on their employers, especially when they live in the same household, or in accommodation provided by the employer. Some women have a background of domestic violence. Some others are subject to double exploitation, sexual and labour exploitation, or transit from one to another.
Legislation does not provide for any kind of assistance or remedy for women – and workers in general – subjected to exploitation, although not so severe to be qualified as a crime, be it slavery, trafficking, or exploitation when it is punished by penal law.
On the contrary, exploitation per se should be a ground for compensation or other kind of remedy, including the pay back of previous salaries, according to ILO Convention n. 143, recognizing this right to all workers including irregular migrant workers.
For social purposes, an operational definition of exploitation should be formulated, enabling social services to identify situations of exploitation, and tailored solutions aimed to social inclusion of migrant women. Such an operational definition should include not only indicators relevant for criminal law purposes, but further indicators including those emerging from migrant women’s experiences including sexual harassment and dependance deriving from exclusive family responsibilities.
Exploitation does not exclude agency. For example, women have constantly built networks aimed at protecting themselves and other women from abuse and sexual violence. Care responsibilities are often a vulnerability factor, but also a motivation for resilience or change. Women’s networks have been instrumental to conciliation of work and family responsibilities. In some cases, exploited women have undertaken entrepreneurship pathways, even in extreme situations such as in the so called “ghettos”.
Lesson 3 – Trafficking in women
Although the Palermo Protocol, the first international instrument on trafficking in persons especially women and children, indicated among its objectives the protection of victims, governments’ actions against trafficking have primarily aimed to repression of criminality linked with trafficking, while victims’ rights have been vastly overlooked.
The primacy of the repressive side of anti-trafficking action, coupled with governments’ political orientations against migration, has led to a public discourse aimed at instrumentally justifying restrictive migration policies in the name of the “fight against traffickers”.
Furthermore, a widespread approach to trafficking has been used to reinforce a victimizing discourse on people concerned. In fact, they are considered as persons – mostly women – lacking agency or negotiating powers. One of the reasons of such a narrow understanding of trafficking is the legal (but rather theoretical) distinction between smuggling and trafficking, the first based on an agreement between the migrant and the smuggler, the second based on victimization of the person concerned. Such a clear-cut distinction does not take into consideration that illicit means listed in the definition of trafficking include means other than coercion, such as deception and abuse of a position of vulnerability. As a matter of fact, the distinction between smuggling and trafficking is not easy in practice, as a smuggling situation can become a trafficking one, when an illicit means has been used during the process.
Two “Issue Papers” produced by UNODC, the UN Agency for drugs and crime prevention based in Vienna, have contributed to clarify two notions that in the definition of trafficking are intertwined: abuse of a position of vulnerability and consent. According to the legal definition, the consent of the person is not valid when any of the illicit means have been used. Bearing in mind the need of a balanced interpretation, the notion of abuse of a position of vulnerability (APOV) should comprise situations in which the person has been persuaded that accepting the conditions imposed by traffickers or exploiters is the best possible alternative for her/him. However, interpretation should not be too broad because this would nullify migrants’ agency. On the other hand, a narrow interpretation of APOV would deprive of protection many people who have been subjected to trafficking because of their “situational vulnerabilities”, due to economic and social reasons. The criteria to assess APOV have been explained by all relevant international instruments including the EU Directive 36/2011, with respect to circumstances in which a victim has no real and (or) acceptable alternative but to submit to the abuse involved.
In the field of labour exploitation, it is largely recognized that workers can (and actually do) accept exploitative situations, provided that their jobs enable them to realize their life projects, even partially. On the contrary, in the area of sexual exploitation, mostly involving women and LGBTQI+ persons, agency is often denied. The so called “Nordic Model”, deriving from the Swedish legislation, is particularly popular and has been adopted by a number of countries including France and Ireland. Such a model is based on the idea that prostitution per se is a form of violence, and that buyers of sexual services must be punished.
Such an approach implies a pervasive concept of violence. Consequently, there is a complete conflation between trafficking and prostitution, and regarding trafficking, there is no possibility to distinguish coercive from abusive forms of trafficking.
Several national reports published in countries in which laws based on the Nordic Model have been passed, show that criminalization of clients has led to further stigmatization of people, mostly women selling sexual services. In addition, when the entire area of behaviors linked with prostitution are made illegal and go underground, the conditions of sex workers and in more general terms of people prostituting themselves deteriorate, and their dependance from exploiters increase.
Unfortunately, the European Commission has recently presented to the EU parliament a proposal for a revision of Directive 2011/36 on trafficking, that would make binding the existing non-binding provision on criminalization of users. Moreover, the proposal is a lost opportunity to improve the Directive concerning victims’ rights such as pay-back of previous salaries and compensation.
One of the best ways to value trafficking victims’ agency, is to establish support measures, which are accessible and respectful of people’s rights. In Italy, article 18 of the Law on Immigration (286/1998) has been for many years the most important provision enabling not only victims of trafficking in the legal sense, but all people subjected to violence and exploitation, in danger for their attempts to escape from traffickers, to participate in a program of social integration, run by NGOs or territorial social services.
Such programs, financed by the Department of Equal Opportunities, have been coupled by projects financed by the Ministry of Interior and more recently by the Ministry of Labour under the Plan against “caporalato” (illicit intermediation) and exploitation in agriculture. Another provision (Art. 22 co. 12-quater) specifically deals with victims of labour exploitation. However, in recent times humanitarian protection, now abolished and replaced by “special protection” has been an important channel to achieve regularization of residency and basic social protection by trafficking victims and exploited people not easily falling in specific categorizations. Provisions on special protection have been recently revised by the Parliament, following a right-wing government bill aimed at undermining the potential of such provisions establishing pathways for regularisation and social inclusion.
On the other hand, important developments regarding trafficking victims’ rights have been encouraged or confirmed by the European Court of Human Rights (ECtHR) jurisprudence.
While in the first case of trafficking before the Court – Siliadin v. France – which was a case of domestic servitude, the Court recognized a violation of Article 4 of the European Convention on Human Rights (ECHR), but limited a State’s obligations to the establishment of an effective criminal legislation, in a more recent case – Rantsev v. Cyprus and Russia – the Court developed a broader reasoning leading to the expansion of States’ obligations related to prevention and victims’ protection.
Lesson 4 – The right of asylum
The right of asylum is one of the fields in which soft law and jurisprudence have made decisive steps forward regarding the interpretation of the grounds provided for by the Geneva Convention of 1951. Importantly, such an innovative approach was linked with gender issues.
Firstly, a gender approach has contributed to a revision of an out-of-date notion of human rights, implying that human rights violations can be perpetrated only by State agents. Considering that violations of women’s rights – such as sexual violence or domestic violence or trafficking – are mostly committed by private individuals, a gender approach has led to consider as a human rights violation the failure of a State to comply with positive obligations linked with protection of vulnerable persons from violations perpetrated by private individuals. Therefore, not only has the list of human rights but also the area of beneficiaries been enlarged.
Secondly, the grounds of asylum and subsidiary protection have been interpreted in a way which is consistent with the feminist deconstruction of the dichotomy between public and private sphere. Consequently, violation of women’s rights traditionally considered as relating to the private sphere have been included among the situations that can be taken into consideration for the recognition of the refugee status.
Article 1 para (2) of the 1951 Geneva Refugee Convention defines a refugee as a person who, “as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
According to Article 2 (e) of the EU 2011/95 “Qualification Directive”,
“Person eligible for subsidiary protection” means a third country national or stateless person who does not qualify as refugee, but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in case of a stateless person, to his or her country of former habitual residence, would face a risk of suffering serious harm as defined in Article 37 (Article 15 of the directive), and to whom Article 39(1) and (2) (Article 17(1) and (2) of the directive) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.
According to Article 37 of the Asylum Act serious harm consists of:
(a)death penalty or execution; or
(b)torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c)serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
The purpose of the Act was to create, in the light of the common European asylum system, a legal obligation to grant subsidiary protection to those at risk of serious harm for reasons and in circumstances not necessarily covered by the Geneva convention.
Grounds for asylum and subsidiary protection were shaped on men’s experiences of persecution, mostly relating to the public sphere. Women’s experiences of rape, domestic violence, female genital mutilations, trafficking, sexual exploitation and slavery in domestic servitude – just to mention a few examples – were overlooked.
In this respect, it is appropriate to recall that until the ‘80s rape was considered a form of private violence, even when it was perpetrated for political reasons, as it happened in Salvador by the Death Squads (Rigo). Innovation started in the ‘90s, when US and Canadian Courts started to consider rape as a form of torture, and therefore included it among the grounds for international protection (D. Anker).
In 2002, the UNHCR Guidelines for the first time included women in the notion of a “social group” for the purpose of the application of the Refugee Convention. In this approach, gender is considered a category which is socially constructed, not as something pertaining to the essentialist concept of sex.
The idea of women as a social group is of course questionable, as women are half of humanity. However, such a construction – for the purpose of the application of the Convention – has allowed interpreters to ensure international protection based on women’s experience of violence, and various forms of coercion.
UNHCR Guidelines of 2012, aimed to include persecution of LGBTQI+ persons among grounds for asylum, did not explicitly reiterate the notion of women as a social group. Such an omission has constantly given place to discussions about supposedly change of orientation. However, according to relevant jurisprudence, a gender approach based on the inclusion of women as a social group among the grounds for asylum must be considered an “acquis”, and cannot be called into question.
The above-mentioned “Qualification Directive” 2011/95 contains a formulation that potentially includes women’s issues. Several national laws introduced explicit reference to some of the widespread women’s rights violations. For example, the Italian law transposing the Qualification Directive (D. Leg. 251/2007) states, at Article 7 co. 2 lett. a), that acts of persecution that qualify for the purpose of the refugee status, include acts of physical or psychological violence including sexual violence. In addition, Article 7 co. 2 lett. f) refers to acts directed against a sexual gender or against childhood (non-official translation).
Recent Italian jurisprudence has confirmed such an approach. In particular, the refugee status was recognized to a woman refusing to marry with the brother of her defunct husband, according to the Istanbul Convention and the Refugee Convention, by considering women as a social group (Cass. Civ. n. 28152/2017). The subsidiary protection has been recognized in a case in which domestic violence bore at home by the applicant was considered a situation of serious danger in case of repatriation (Cass. Civ. n. 12333/2017).
Other situations qualifying for the refugee status or the subsidiary protection from a gender approach, according to the relevant jurisprudence, have been sexual orientation, female genital mutilations, forced marriage, sexual violence, and trafficking. Such an approach has been recently reconfirmed by the Court of Cassation in a case of trafficking for the purpose of sexual exploitation, acknowledging that women must be considered a social group for the purpose of the Geneva Convention (Cass. Civ. n. 676/2022).
In the Italian legislation a third form of protection existed, the humanitarian protection, lately replaced by the so called “special protection”. Importantly, the jurisprudence acknowledged that the three forms of protection (refugee status, subsidiary and humanitarian protection) contributed to the effectiveness of the right to asylum enshrined in the Article 10 of the Italian Constitution. This judicial interpretation legitimates doubts of constitutionality of the new law, significantly weakening the provisions on special protection, and therefore the entire asylum system.
No matter whether the law will be challenged before the Constitutional Court, judges must formulate a comparative assessment of the situation of the person in case of repatriation, and of the level of social integration achieved in Italy, according to the Constitution and international instruments, to deal with situations that cannot easily fall within other forms of typical protection.
From a gender approach, migrant women’s lives should be understood as affected by intersectional vulnerabilities, and simultaneously as showing agency. Even in extreme situations of subjugation and exploitation, women are capable of resilience and negotiation even when the range of opportunities is restricted, and are ready to promote radical change when their migration project has been completely disrupted.
As Enrica Rigo has been highlighting, the right of asylum offers the opportunity to elaborate a critic approach from a feminist point of view concerning the neutrality of the law, and simultaneously to use the law as a tool for the advancement of women’s rights.
According to this approach, the supposedly neutral regulation on international protection has been re-interpreted by the relevant jurisprudence in a way which is more consistent with women’s lives and rights.
Law is a powerful tool to achieve women’s empowerment and effectiveness of their rights. In the process of evolutive interpretation of international instruments and national legislation, the notion of intersectional vulnerability is instrumental to ensure protection, while the notion of agency values women’s self-determination and empowerment.
It is a balance not easy to achieve in practice. However, the need for a due consideration of both is the main pathway towards an appropriate approach to migrant women’s lives and rights.
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