She Is Not Just a Victim. an Intersectional Feminist Labour Law
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She is not just a victim. An intersectional feminist labour law approach to human trafficking into the sex industry Inga Kristina Thiemann University College London, Faculty of Laws Submitted for the award of PhD ! ! ! 1! Declaration I, Inga Kristina Thiemann, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. ____________________ 2! ! Abstract Existing legislation and policy has mostly considered human trafficking as a criminal law problem. When the needs of trafficked persons have been taken into account, this has been on a victim protection basis, rather than by focussing on their rights as workers, migrants and women. This thesis conceptualises human trafficking into the sex industry as an intersectional issue of gendered labour law, gendered migration law and policy, and patriarchal concepts of appropriate female sexuality and resulting views on prostitution. By exploring existing human trafficking narratives and legislation from this intersectional perspective, this thesis exposes the idealised victim category in human trafficking discourse. Further, an analysis of international and domestic human trafficking legislation demonstrates that this victim category persists at UN and EU level, as well as in the domestic legislation of England and Wales and Germany. Whereas the international level includes the problematic legacy of historic counter-trafficking legislation, the analysis of the domestic implementation is enriched with on-the-ground experiences of non-governmental organisations work with and on behalf of actual trafficked women and migrant sex workers. Finally, this thesis introduces an intersectional feminist reproductive labour law approach, which is based on the acknowledgment of the intersectional vulnerability of migrant women sex workers. This approach combines existing work, which reframes human trafficking within labour exploitation with a feminist critique of existing labour law. Taking into account migration as an additional layer of vulnerability for women reproductive workers, this approach reframes reproductive labour, including sex work, as commodifiable work. This re- conceptualisation creates the foundation for the extension of labour protections to all workers, including trafficked persons. By doing so, it also creates the possibility to oppose the existing trafficking narrative. ! 3! Acknowledgments I would like to thank to my PhD supervisors, Professor Alison Diduck and Dr Virginia Mantouvalou, for supporting me through my thesis. Their different outlook proved the perfect combination for stimulating debate on my research. I am grateful for the numerous ways in which they encouraged me to forge my own path. I was truly lucky to be ‘over-supervised’ with these two primary supervisors (a fact that was often – rightly – the source of mild envy in the UCL Laws PhD community). They both offered not only support with my research, but had an open ear for all other concerns – and, for the time they still had real offices with doors at Bentham House – an always open door. Virginia and Alison, thank you for your support, for all the opportunities you have given me over the last few years, for all your kind words and for all the good laughs. I would also like to thank my secondary supervisor, Dr Nigel Balmer for his advice on conducting empirical research and his insightful discussions and suggestions and for making the whole process significantly less daunting. I am also thankful for the support from the Modern Law Review, who made finishing this thesis possible by awarding me their scholarship for the last two years. I want to thank the great PhD community at UCL Laws, for the stimulating debates in the PhD work in progress seminars, especially for lovely and helpful comments from Eleni, Lea and Alex on various presentations of my work. More than anything I am grateful for the friendships that have grown out of this research process, for the endless chats over coffee, for the evenings spent drinking, laughing and sometimes commiserating together. I could not have done it without you. A big thank you to my friends outside the research community, for all the times you dragged me away from my desk, for all the walks in the park, for all the calls and postcards and all the words of encouragement. Especially for not forgetting about me when I dropped off the face of the earth for weeks at a time to produce another draft. A special thanks goes out to Namitha for proofreading the final draft of this thesis - 300 pages of legal discussion was probably not what you signed up for. Last, but by no means least, I would like to thank my family for all their love and encouragement. To my mum for tirelessly proofreading draft chapters (in her second language, no less) and my parents and my brother for the constant phone support and for always cheering me on. 4! ! ! Table of Contents Declaration ................................................................................................. 2 Abstract ...................................................................................................... 3 Acknowledgments .................................................................................... 4 Introduction & Methodology .................................................................. 10 1) Context of the Thesis ................................................................................ 10 2) Key Terminology ....................................................................................... 13 3) Themes ....................................................................................................... 18 4) My Approach and Original Contribution ................................................. 21 4.1) Original Contributions ........................................................................... 23 5) Chapter Overview & Methodology ........................................................... 24 5.1) Part I - Theoretical Foundations ........................................................... 25 5.2) Part II - Analysis of the Criminal Law Approach to Human Trafficking in International Treaties and Domestic Legislation .......................................... 26 5.3 Critique and Conclusion ........................................................................ 28 5.4) Why England & Wales and Germany? ................................................. 28 6) Methodology for the Empirical Part ........................................................ 29 6.1) The Interviews ...................................................................................... 29 7) Scope & Exclusions .................................................................................. 33 PART I – Theoretical Foundations ......................................................... 35 1) Introduction ............................................................................................... 35 Chapter 1: The Gendered Dimensions of Labour Law ........................ 38 1.1) Introduction ............................................................................................ 38 1.2) The Standard Employment Contract – An Exclusive Category ......... 39 1.1.1) Early Labour Protections for Women and the Development of Gendered Labour Norms ............................................................................. 40 1.1.2) The Standard Employment Contract – a Male Norm ........................ 46 1.2) The Standard Employment Contract Today – a Norm For All or a Disappearing Norm? ..................................................................................... 49 1.2.1) Work Outside the Standard Employment Contract ........................... 51 1.2.2) Feminised Labour and the Decline of the Standard Employment Contract ....................................................................................................... 53 1.2.3) Labour Law’s Role in Creating and Maintaining Precarious Employment ................................................................................................. 56 1.3) ‘Not a real job’ – Highly Precarious Work, Women’s Work and Exclusion from Labour Rights ..................................................................... 57 1.4) Conclusion .............................................................................................. 58 ! 5! Chapter 2: Migration, Gender and Precariousness ............................. 61 2.1) Introduction ............................................................................................. 61 2.2) Gendered Assumptions about Migration ............................................. 62 2.2.1) Women’s Reasons to Migrate ........................................................... 64 2.2.2) Effect of Gender on Migration Policies .............................................. 66 2.3) Gendered Job Opportunities and Related Risks ................................. 67 2.3.1) Migration into ‘Women’s Work’ .......................................................... 68 2.4) Gender, Nationality and the Restrictions on Female Migration ......... 70 2.4.1) Discrimination in Emigration Policy ................................................... 73 2.4.2) Discrimination through Restrictive Immigration Policies .................... 75 2.5) Citizenship and ‘Alien’- Status as Factors of Precariousness ........... 78 2.6) Migration, Human Smuggling or Human Trafficking? ........................ 80 2.6.1) Links Between Trafficking and ‘Normal’