Gendered Borders Conference

Opening comments and welcome to Jacqueline Bhabha,
by Sarah van Walsum

De Balie, September 30 2004.

Goeden avond dames en heren, en welkom op deze bijzondere bijeenkomst. Zoals velen van jullie al weten, maar sommigen wellicht nog niet, is vanavond niet alleen sprake van een discussie avond in de Balie, maar ook van de start bijeenkomst van een congres dat georganiseerd wordt vanuit de sectie migratierecht van de rechtenfaculteit van de Vrije Universiteit Amsterdam: Gendered Borders: een internationaal congres over vrouwen en vreemdelingenrecht in Europa. Omdat wij als organisatoren van dit congres vonden dat dit een onderwerp was die de aandacht verdiende van meer dan de 100 uitgenodigde congresgangers, hebben we met de Balie geregeld dat onze key-note speaker, Professor Jacqueline Bhabha, hier, voor een breder publiek, zou kunnen optreden. En omdat veel van de hier aanwezigen geen Nederlands verstaan, ga ik nu met uw welvinden over in het Engels.

Ladies and gentlemen, welcome to this opening session of the Gendered Borders Conference. My name is Sarah van Walsum, and together with my colleague Thomas Spijkerboer at the Vrije Universiteit in Amsterdam, we have organised this conference. Before giving the floor to our invited key note speaker, Professor Jacqueline Bhabha, I would like to say a little on the topic of the conference, to explain why we, at the Vrije Universiteit, felt it was important to direct attention to women in immigration law. These comments will serve, at the same time, to introduce Professor Bhabha to you.

Women and immigration law in Europe. Why devote an international conference to this topic? First of all, most political discussions and most academic writings on immigration law tend to focus on the regulation of male migration, while women in fact account for at least 50% of international migration worldwide. This is one of the major reasons why the UN has chosen international migration as the focus for its coming five-yearly report on women and development, which will be appearing in December of this year.

But there are other, to my mind more fundamental, reasons why we should pay serious attention to women and immigration law. Since the Dutch government is chairing the EU this half year, and since our premier, Jan-Pieter Balkenende, has, in this capacity, been promoting traditional European values, I shall support my comments with illustrations taken from the good old European cultural tradition.

The first point I would like to make is that, when we talk about immigration law, what we are really talking about is the struggle to define the demographic limits of a specific territory. Who do we let in, and who do we keep out. Lawyers translate this struggle into legal terms and technicalities, but in the day to day lives of the people involved, we are talking about a struggle that is often dramatic and sometimes even violent. The stakes, after all, are high. Just to give you an idea: according to statistics quoted in Le Monde Diplomatique of March of this year, more than 3,000 dead bodies were recuperated from the Straights of Gibraltar between 1997 and 2001.

Presently, the main struggle that we are involved with here, in Europe, is the struggle to define the demographic limits of Europe – often referred to as Fortress Europe. But the struggle to define demographic limits as such is far older. In fact, we can trace it back to European mythology – a mythology that not only reflects the violent nation of this struggle; it also reveals its gendered nature. Let us consider, for example, the story of the Romans and the Sabines.
This story has it that the city of Rome was founded by Romulus and Remus, two orphan boys who were brought up by a she-wolf. When they had grown up and decided to found a city of their own, they went into the hills of Rome and sought together a band of shepherds to help them in their venture. But they had a problem. All the founding members of Rome were men. If they wanted their new city to thrive and last, they would need some women. So they decided on the following plan. They invited men from a neighbouring tribe, the Sabines, to join them in a feast to celebrate the founding of their new city. And they encouraged the Sabines to bring along their women folk: “it’s going to be a great party. Bring your wives, your sisters and your daughters!” And the Sabines did. And everyone had a great time, until all of a sudden, the Romans moved in with swords drawn. They violently abducted the Sabine women, and chased away the men.

This story of the rape of the Sabine women has formed the inspiration for numerous works of art. Here we see a rendition by Girolamo del Pacchia, that dates from around 1520. I like this version since it clearly depicts a divide between the two populations: on one side, Romans who have succeeded in co-opting most of the Sabine women; on the other side a few more Roman soldiers struggling to drag the remaining women over the line; and largely forced out of the picture: the Sabine men. Clearly, the process of defining a population can affect women differently from men.

Immigration lawyers with an eye for gender relations are confronted with this fact regularly. Refugee lawyers are all too familiar with the role that sexual violence plays in ethnic, racial and nationalist conflicts to this day. In the regulation of labour migration we see the distinctions made between migrant labour in the intimate sphere – largely women’s work – and the more manly jobs in construction, manufacturing or ITC. Whether they work as child-minder, domestic, prostitute or nurse, migrant women are seldom enjoy the same rights, as workers, as migrant men. In fact, their work may not be recognized as work at all – think of the euphemistic term “au pair” for migrant women working in the home. As for family migration: until quite recently, nationality laws easily absorbed foreign wives into the nation, but excluded foreign husbands.
Del Pacchia’s panel by the way originally served as part of a marriage chest, containing a bride’s household linens. This fact alone suggests some intriguing parallels between traditional European marriage values, and the gendered nature of immigration law…
But let’s get back to the Romans and the Sabines – for their story doesn’t end here. Years passed, and the Sabine women settled down to their new lives as Roman wives. They set up house, bore and raised children. In the meantime, their Sabine fathers, brothers and former lovers licked their wounds and regrouped. Finally, they decided they were well enough prepared to take their revenge. They made their way back into the city of Rome, drew their swords, and set about recapturing their wives.
The Sabine women however wouldn’t stand for this. Faced with the prospect of having their husbands slaughtered at the hands of their fathers, or the other way around; of having to desert their husbands and children in order to be reunited with their parents or, alternatively, having to betray their parents in order to remain with their spouses, they intervened. They convinced the warring men to settle their differences, and in the end, the Romans and Sabines joined forces, and the city of Rome became a joint venture.

This is how the French painter Jacques Louis David depicted this scene in the 1790’s. Where Romulus played a leading role – somewhat behind the scenes – in orchestrating the forced separation, as shown in Del Pacchia’s panel, it is now Romulus’ wife Hersilia, daughter of Tatius, the leader of the Sabines, who takes centre stage in initiating a reconciliation.
Again, the mythical representation evokes themes that are relevant for our topic at hand. We see that the struggle to define demographic limits not only affects men and women differently, but that women’s perspective on that process can deviate from the dominant male perspective. Where the Roman and Sabine men were preoccupied with defining the populations under their respective rule, on their respectively controlled territories – a political definition if you will – the Sabine women, the Roman wives, were preoccupied by the family bonds that transgressed the political divide. Obviously, I run the danger of essentialising men and women here. I would be the last to claim that men have no eye for family bonds, or that women are not interested in politics. The point I’m trying to make is that, in any type of social relation, women generally occupy different positions than men, be it in the family, on the labour market, in politics or wherever. As a result, social relations tend to look different, seen from women’s perspective. And women will have their own specific point of view on the impact that borders have on social relations. Even in these emancipated times, women’s perspectives still tend to be sub-dominant, while the dominant perspective still tends to be largely male. What seems logical from that dominant perspective, is more readily challenged from a sub-dominant perspective. Things that are taken for granted are put to question. By taking gender into account, we can open up new perspectives on immigration law and borders.
Finally, the story of the Sabine women shows that it is too simple to depict women as hapless victims of man-made borders and border conflicts. Moved by their own interests, and following their own point of view, women can and do intervene in specific ways in the struggle to define demographic borders. So policy makers involved with immigration law, beware. If you ignore the women involved, you do so at your peril.
Living proof of this last claim is our invited key-note speaker, Professor Jacqueline Bhabha, a modern Hersilia, as it were. Professor Bhabha’s involvement with women and immigration law goes back a good many years. In fact, she was one of the lawyers instrumental in bringing the Abdulaziz, Balcandali and Cabales case before the European Court of Human Rights in Strasbourg in 1985. This Abdulaziz case, or the ABC case as it is also referred to, was in many respects a landmark case. And it serves as a modern illustration of the themes I’ve referred to here, in my discussion of the Sabine women.
First of all, the Abdulaziz case was all about how immigration law impacts women differently from men. What was the problem? At the time, any man with British nationality could settle in Great Britain with a foreign wife. The same however, did not apply to all women with British nationality – to put it bluntly, only white women could settle in Great Britain with a foreign husband. British women with colonial roots were expected to follow exotic husbands abroad. Like the Romans, the British were happy enough to bring in foreign wives, but preferred to keep foreign men out.
Like the Sabine women, the women affected by these policies didn’t take things lying down. They organised, campaigned and lobbied, and they appealed to the European Court of Human Rights. Although they didn’t win their case on all points, they did bring about a fundamental shift in perspective on immigration law. In its decision on this case, the European Court determined that European states, in enacting and applying immigration law, must take fundamental human rights and freedoms into account – in particular the right to respect for family life. Since then, immigration law in Europe is no longer just about sovereign states defining their demographic borders. It is also about the human rights of the men and women who run up against those borders.
So here again, we not only see how women are affected by immigration law in specific ways, but also how they can open up specific perspectives on immigration law, and in their own right influence how immigration law defines demographic limits.
Although Professor Bhabha has long since left legal practice behind her, these observations still hold true for her work. An academic now, teaching international human rights law at Harvard University, and acting as executive director of the University Committee on Human Rights Studies, also at Harvard University, she continues to focus on the specific implications of immigration and refugee law for women; on the new perspectives that these open; and the opportunities those perspectives can offer. In fact, she has broadened the scope of her enquiry even further, by including the aspect of age, next to that of gender. For children too, experience immigration and refugee law in specific ways, view borders from a different perspective, and address their own problems in their own way.
So all in all, we are truly very honoured and pleased to be able to welcome you, Professor Bhabha, as the key-note speaker to our Gendered Borders conference on women and immigration law in Europe.