Amidst the COVID-19 crisis, Kolkata witnessed something novel during the Durga Puja Celebrations of 2020. One of the Pandals’ showcased a migrant woman with a child in her arms instead of the traditional Durga idol. This thoughtful and creative portrayal of the migrant woman succinctly brought to fore the numerous challenges and problems they face. It paid a befitting tribute to them as it acknowledged the struggles faced by migrant women, especially during the pandemic.
Several issues and challenges are associated with migration in general, and the concerns over migrant rights are manifold. The realisation of the basic human rights for migrants is a crucial challenge. Certain categories of migrants, however, are more vulnerable to exploitation and susceptible to atrocities than others. Migrant women are one such category. This article addresses the particular challenges faced by migrant women.
MIGRATION AND WOMEN
People have been on the move for long, right from the earliest of times, in search of better living conditions and environment, livelihood opportunities or as a means to escape from conflicts or persecution. Currently, the issue of migrants and the phenomenon of migration has been at the forefront of various political and social discourses. The present ongoing COVID-19 pandemic has created another level of concern over migrant rights. The pandemic has significantly impacted migration due to restrictions on mobility and has also exacerbated pre-existing migrant vulnerabilities.
Migration takes place irrespective of gender and age. It may be internal or across borders. The reasons for migration are attributed fundamentally to economic, political and social factors. Migration and migrants have also been classified in numerous ways. The classification may revolve around the reasons for migrating or over the voluntary or involuntary nature of migration. With border controls in place, migration can be termed as internal or international as well.
In 2019, almost 48 per cent of the 272 million international migrants were female. Women migrate for a variety of reasons. For example, to seek better job opportunities, because of marriage or to flee persecution or conflict. Migrant women, however, tend to be placed in vulnerable positions and are comparatively more susceptible to abuse and exploitation. Some of the prominent areas of vulnerability for migrant women are in the field of labour, access to health, trafficking and sexual and gender-based violence. Motherhood also poses solemn responsibilities on their shoulders.
CHALLENGES THAT CONFRONT MIGRANT WOMEN
The overwhelming focus by policy and legal experts on security, economics and sustainable development in connection with migration, tends to overshadow, the particular needs and problems faced by migrant women.
Though people migrate irrespective of gender, migration literature has been woefully negligent concerning themselves with the importance of gender in its discourses. In most cases, women’s voices are absent from public platforms, and their needs and problems go unnoticed. In 1984, Mirjana Morokvasic highlighted the relationship between migration and women and discussed how migration concerned women as much as it did the men. Therefore, it has been relatively recent that gender as an essential facet of migration has come to be examined and analysed. The focus on the concept of gender in migration literature, however, remains in its nascent stage.
The pre-existing gender inequities in society plays a significant role in the issues and challenges faced by migrant women. They exacerbate the problems already in place for them. Migrant women are vulnerable as they fall in a position of “dual discrimination”. Dual discrimination means that migrant women face discrimination both as migrants as well as for being women. In certain situations, they may also face further discrimination based on their ethnicity, nationality or age. Such discrimination precludes women from the enjoyment of their human rights.
Unlike yesteryears, when women mostly migrated to unite with families, they are now migrating independently or even as head of households and entering the labour market.
The International Labour Organisation (ILO) a United Nations agency recognises that the number of migrant women has risen over the years and that they are more likely to migrate for work purposes with many becoming employed as domestic workers. The difficulties faced by such migrants are that domestic work fails to gain recognition as an economic activity, creating avenues for the exploitation of migrant women, especially those with irregular statuses. Most governments often overlook women migrant labour leading to their exploitation by employers. It may be noted that the ILO Convention on Domestic Workers that seeks to protect domestic workers including migrant domestic workers, of which many are women has as yet received only 31 ratifications. During the recent COVID-19 crisis, this vulnerability of domestic migrant women workers was highlighted.
Another specific issue for migrant women is that they are at a risk of sexual and gender-based violence and trafficking. The UN High Commissioner for Refugees (UNHCR) describes gender-based violence as ‘harmful acts directed at an individual based on their gender.’ Women face a higher vulnerability of encountering sexual and gender-based violence in comparison to men. The United Nations Office on Drugs and Crime in a report in the year 2016 stated that 79 per cent of detected trafficking victims happen to be women and children.
Several migrant women journeying for a better life encounter unspeakable violence during transit and even after reaching their destinations. The threat of sexual exploitation is heightened for women during irregular migration. Many cases show migrant women suffering from sexual violence at the hands of smugglers during transit and are forced into prostitution. Such horrific incidents are a manifestation of pre-existing gender inequality and unequal power balance prevalent in society at large.
The means of accessing health care, particularly in reproductive health, poses another critical challenge for migrant women. There are increased chances of discrimination, verbal and physical violence, and health staff’s insensitivity during the consultation. In Europe, for example, there are many barriers to accessing health care by migrant women, especially if they are undocumented. These existing inequalities in health care for migrant women have and continue to pose a serious problem during the present pandemic.
LEGAL PROTECTION FOR MIGRANT WOMEN
In international law, there is no universally accepted definition of a migrant. However, certain specific categories of migrants have been accorded with protection. These categories include migrant workers, refugee, smuggled and trafficked migrants.
Migrant women who are migrant workers or refugees can thus seek the realisation or protection of their rights under international treaties like the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (ICRMW); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 2000 or the Convention Relating to the Status of Refugees. Several ILO conventions also deal with the rights of migrant workers like the Migrant Workers (Supplementary Provisions) Convention, 1975 and the Convention on Domestic Workers.
Among these legal instruments, the ICRMW is the most comprehensive international treaty geared towards protecting migrant workers’ rights. The Convention envisages protection for the entirety of the migration process. Theoretically this Convention is a hallmark for the realisation of migrant workers’ rights. In practice, though as of now this convention has only 56 parties.
Apart from the treaties as mentioned above the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which enshrine the basic rights of all human beings may also be invoked. The most important provision regarding migrant women is the principle of non-discrimination enshrined in Article 2(1) and Article 2(2) of the ICCPR and ICESCR, respectively. The ICCPR also envisages in Article 3 the “equal right of men and women to the enjoyment of all civil and political rights”. The ICESCR in Article 7 envisages equal remuneration for work, particularly in women’s case that they are guaranteed “conditions of work not inferior to those enjoyed by men”.
The Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW) is another significant legal instrument which is specifically envisaged towards upholding the rights of all women. Also, unlike the ICRMW, the CEDAW has over 180 parties. CEDAW under Article 2 condemns the discrimination against women in “all its forms”. Under Article 3, it places obligations on States party to the Convention to take appropriate measures “to ensure the full development and advancement of women”.
Amongst the recent development the New York Declaration recognised that women have “particular vulnerabilities” that include a risk to sexual violence and trafficking. The Declaration also recognised a need to address the particular situations of migrant women and incorporate a gender perspective into migration policies. Another landmark initiative has been the United Nations Global Compact for Safe, Orderly and Regular Migration (Migration Compact) which has made great strides by agreeing to be “gender-responsive”. The Migration Compact definitively recognises gender in migration and has agreed to ensure, “that the human rights of women, men, girls and boys are respected at all stages of migration, that their specific needs are properly understood and addressed and that they are empowered as agents of change.” Also the United Nations Sustainable Development Goals in Goal 3.7 targets to “ensure universal access to sexual and reproductive health-care services”. This goal can be conducive towards helping lower barriers for accessing healthcare services by migrant women.
In the Indian context, India has international commitments to respect and realise women’s rights as it is a party to several International Human Rights treaties that include the ICCPR, ICESCR and CEDAW. Domestically and recently as a response to the high distress migrant situation as a consequence of the pandemic, the National Commission for Women has made the initiation to have more women-focused legislation. A move has been made to review domestic legislation like the Migrant Workmen Act, 1979 to meet the necessities of migrant women. Also, a need for segregated data for women workers has been emphasised.
The number of women migrating has been increasing. The gender-specific roles are being demolished, and many women today are migrating independently and setting out further ashore for various reasons. There are increasing households who have become dependent on women as their breadwinners and as head of the house.
Though nearly half the number of migrants are women, migration for women is not devoid of risks and problems. There are several international conventions and declarations which have provisions for ensuring robust protection of women’s rights. Nevertheless, migrant women continue to face challenges. These challenges persist because though laws have envisaged gender equality, society remains culturally and socially unequal with women at the disadvantaged end. There is also a lack of women voices at public and political platforms where most decision-making occurs. Such an absence has hampered the move towards ascertaining the full benefits and opportunities to migrating women.
At the international legal arena, it is only recently that the awareness of migrant women having special and particular needs have come to be acknowledged. Even migration data, to a large extent, is gender blind. With a lack of adequate sex-disaggregated data, the entire picture of the situation of migrant women becomes difficult to ascertain. Even in India, it has been the pandemic that has woken people to the need for disaggregated data for women workers. It is a tragedy to see that it is a pandemic that has brought forth the awareness of the myriad of problems associated with migrants in general and migrant women. The best way towards the realisation of the rights of migrant women is to begin by having quality representation from women from various walks of life in legal and policy discussions. It is also important to direct focus on the concept of gender in migration studies.
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Mirjana Morokvasic, Birds of Passage Are Also Women, 18 Int’l Migration Rev., 886, (1984).
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 Manny Fernandez, ‘You Have to Pay With Your Body’: The Hidden Nightmare of Sexual Violence on the Border, N.Y TIMES (Mar. 3, 2019), https://www.nytimes.com/2019/03/03/us/border-rapes-migrant-women.html.
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International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Dec. 18, 1990, 2220 UNTS 3.
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Nov. 15, 2000, 2237 UNTS 319.
Convention Relating to the Status of Refugees, Jul. 28, 1951, 189 UNTS 137.
 Migrant Workers (Supplementary Provisions) Convention (No. 143), Jun. 24, 1975, C143.
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International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3.
Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 UNTS 13.
 New York Declaration for Refugees and Migrants: resolution / adopted by the General Assembly,Oct. 3, 2016, UNGA Resolution A/RES/71/1.
 Ibid at para. 29.
 Ibid at para. 60.
 Global Compact for Safe, Orderly and Regular Migration, Dec. 19, 2018, UN Doc. A/RES/73/195.
 Ibid at para 15 (g).
 Transforming our world: the 2030 Agenda for Sustainable Development (2015), UNGA A/RES/70/1.
 Ambika Pandit, NCW sets off review of laws related to migrant women workers, TOI (May 14, 2020, 22:48), https://timesofindia.indiatimes.com/india/ncw-sets-off-review-of-laws-related-to-migrant-women-workers/articleshow/75745050.cms.
 The Inter-State Migrant Workmen (Regulation Of Employment And Conditions Of Service) Act, 1979, No. 30, Acts of Parliament, 1979 (India),
 Supra Note 29.
 Supra Note 29.