Women's Human Rights and Migration. Sital Kalantry
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the opportunity to do this that is exchanged when women are bought and sold for sex… [L]iberty for men … includes liberal access to women, including prostituted ones. So, while for men, liberty entails that women be prostituted, for women prostitution entails loss of all that liberty means.84
On the other end of the spectrum are the individualists who believe that sex workers frequently exercise choice in choosing to perform sex work. They therefore believe that not all sex work is trafficking. The individualists disfavor a definition of trafficking that fails to recognize that some sex work is undertaken by choice and thus is not trafficking.85 Another, less vocal, camp framed sex work as simply the right to work, a form of wage labor.86 The view pushed by the Clinton administration “conceptualized prostitution and trafficking as distinct; envisioned the possibility of non-coerced prostitution; it also emphasized the centrality of human rights.”87 This liberal framework emphasized autonomy.88 Ultimately, Thomas notes that both the liberal and structuralist feminist views prevailed in the treaty language that was eventually adopted.89
MacKinnon’s view is that prostitution is detrimental to women’s equality and should be outlawed everywhere. I argue against this universal approach to women’s equality and rights. In some countries like India, many sex workers would not be able to provide the basic necessities like food and shelter for themselves and their children if they were not able to undertake sex work. There are few alternative jobs available to sex workers, particularly in a place like India, where sex workers are shunned by society. While there certainly are sex workers in the United States who engage in sex work just to have enough money to eat, most do not operate at that level.
While the harms of sex work might be the same across countries (dignity harms, greater risk of violence, etc.), the costs of a ban will not be. A ban in a place like India could result in the inability of many women to support themselves. In other countries, a woman is more likely to avoid costs like ostracism and may be able to find other paid work. Like Shamir, I believe that in weighing competing rights at stake in banning sex work, the legal outcome could be different in a country like the United States than a place like India.
Governance feminism seems to push for policy solutions developed in one country context to other country contexts. Typically, it pushes a more developed country’s policies onto a less developed country. This harkens back to the law and development work undertaken in the early 1960s and 1970s, where Western lawyers and advocates embarked on reforming and strengthening regimes in emerging economies.90 The problem was that the model laws they proposed were developed in Western countries and they neglected to tailor the laws to the specific context of the destination country, and in many cases the transplanted laws did not work to accomplish their goals.91
Sex-selective abortion bans are in a way a reverse transplantation of laws—from a less economically developed country to a more developed country. Advocates for the bans in the United States often argue that because India and China ban sex selection, the United States should also do so. This reverse transplantation is problematic for many of the same reasons that the law and development movement has been criticized.
Context in Karima Bennoune’s Work
Professor Karima Bennoune’s groundbreaking work more explicitly foregrounds context in evaluating bans on practices that are thought to be harmful in one context, but then emerge in other country contexts largely through human migration. She examines veil bans and argues that whether or not they are appropriate depends on the context. As she notes, her proposal provides “an innovative contextual approach to assessing the legality of bans in public schools on ‘modest’ garments claimed to be required by religious beliefs of Muslim women.”92
She elaborates that a contextual analysis of bans on modest dress of Muslim women would involve examining a number of factors, including:
[T]he impact of the garments on other women (or girls) in the same environment; coercion of women in the context, including activities of religious extremist organizations; gender discrimination; related violence against women in the location; the motivation of those imposing the restriction; Islamophobia, if relevant, or religious discrimination in the context; the alternatives to restrictions; the possible consequences for human rights both of restrictions and a lack thereof; and whether or not there has been consultation with impacted constituencies (both those impacted by restrictions and by a lack of restrictions on such garments), and, if so, what their views are.93
She examines two court decisions—the European Court of Human Rights (ECHR) judgment in Sahin v. Turkey (2004)94 and the British House of Lords judgment in Begum v. Headteacher. In Sahin, the ECHR found that Turkey’s ban on the headscarf in universities did not violate the European Convention on the Proection Human Rights’ Convention guarantee of religious expression. On the other hand, in Begum, the House of Lords upheld a school’s ban on the jilbab, which is a long cloak covering everything but the head, hands, and feet.95 While she appears to be open to the possibility that veil bans are permissible in some countries but not in others, Bennoune finds the bans to be justified in Turkey and the United Kingdom.96
In Sahin, the issue before the ECHR was whether the Turkish ban violated a women’s right to free expression under the Convention.97 Under the Convention, this right can be limited in order to protect the rights of others.98 Bennoune believes that the Turkish ban was appropriate because “[e]ven to the extent that for some women, the choice to wear a headscarf is their own, and is for them an expression of religious belief, this limitation on that choice is necessary in context to protect the rights of others.”99
She also concludes that in Begum the ban in the United Kingdom on the more restrictive clothing was appropriate in a situation where a less restrictive headscarf was still available and where there was evidence that some girls would have felt coerced into wearing the restrictive dress if it were not banned.100 Bennoune points out that her conclusion that the bans were appropriate in both the Turkey and United Kingdom cases hinges upon the fact that they were in public educational institutions, which shape the identities of future generations and forge the public consensus about gender roles and equality.101
On the other hand, she argues that while bans in Turkey and the United Kingdom were appropriate, it would be inappropriate to ban it in the American law school where she teaches because so few women wear them.102 The magnitude of the practice in the context in which it occurs appears to be an important consideration in determining whether to ban it. Even though she believes bans in both Turkey and the United Kingdom were appropriate, her contextual approach to evaluate bans leaves open the possibility that in some contexts, veil bans may not be appropriate. I build on this idea in developing the methodology I describe in the next section.
Bennoune also briefly discusses France’s 2004 law restricting religious dress in schools, but does not draw any conclusions about its legitimacy. She notes that the “the French law perches in between as a truly hard case.”103 In Chapter 7, I discuss France’s full-face veil ban adopted in 2010, three years after the publication of Bennoune’s article.
Context in International Human Rights Law:
Universality vs. Cultural Relativism
The debate about whether international human rights should apply universally across cultures and countries or whether they should vary based on culture is age-old.104 A “strong” cultural relativist would “assert that culture is the sole or primary source of the validity of a practice or claim to a moral right.”105 The supporters of universalism often draw upon natural law and reason and argue that there are objective standards by which to judge human conduct and to create law. Universalism “assumes that there is law that is so basic, so ‘natural,’ that it exists in all communities.”106
In the early 1990s, this binary frame for human rights also elicited much debate about women’s rights. What Western feminists might consider oppressive, Western relativists consider cultural preservation.107 Take, for example, the practice that some call female