CEDAW and Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker and Root Causes of Abuse

Abstract

The first part of this article sets out CEDAW’s transformative approach to rights and its implications for MDWs and state actors such as courts. It then juxtaposes this approach to the tendency of state officials in destination countries to condemn the abuse of vulnerable MDWs by errant employers without recognizing the impact of official laws and policies on MDWs’ vulnerabilities. The second part of this article examines judicial discussions of MDWs’ vulnerabilities in Hong Kong, Singapore, and Malaysia. Judges in these countries have primarily drawn attention to the isolation of MDWs in their employers’ homes, the dependence of MDWs on their employers for their basic needs, and their lack of financial resources. While such judicial developments are important, the third part of this article argues that these courts need to go beyond discussing specific MDW’s vulnerabilities and their individual criminal cases by identifying and critiquing the root causes of MDWs’ vulnerabilities. It analyzes cases where courts have advanced or overlooked CEDAW’s transformative objectives to argue that criminal law courts can and should advance CEDAW’s goals by naming and contesting the laws, policies, and prejudices enabling MDW rights violations. Such a systemic or transformative approach to adjudication that pinpoints the root causes of MDW abuse can catalyze change at both the legal and policy levels, leading to a more rights-centered approach to MDWs that is consistent with CEDAW requirements.