Tokenizing and Articulating Protection of Women in Migration Law: Strategies of Exclusion in Contemporary Europe and the Nineteenth-Century USA
| Author | Nicole Stybnarova |
| Published date | 01 April 2022 |
| DOI | 10.1177/09646639211023857 |
| Date | 01 April 2022 |
| Subject Matter | Articles |
Article
Tokenizing and
Articulating Protection of
Women in Migration Law:
Strategies of Exclusion in
Contemporary Europe
and the Nineteenth-
Century USA
Nicole Stybnarova
University of Helsinki, Finland
Abstract
This article investigates continuities in migration law-making that claims to aim at pro-
tecting women butin effect is a tokenist strategy excluding non-Western female migrants.
It shows that despite developments in the legal recognition of women’s equality, present
restrictions on family reunification in Western Europe, illustrated through the EU and
Danish migration laws, echo law-making in the late 19th-century US, exemplified in the
process of adoptingthe Page Act, which also introducedstricter rules for female migrants
under the statedobjective of protectingwomen. Using the social theoryof articulation, the
article demonstrates how legislators continuously articulateand rearticulate the wellbeing
of migrant women to legitimize discriminatory migration rules regardless of how highly
women’s rights are respected in law and society. The article contributes to previous
feminist scholarship in migration law by showing the continuity and intentionality of the
articulative practices in law-making directed at migrant women.
Keywords
Articulation, exclusion, family reunification, human rights, migration law, women’s rights
Corresponding author:
Nicole Stybnarova, Erik Castr´
en Institute, University of Helsinki, Yliopistonkatu 3, P.O. Box 4, Helsinki 00014,
Finland.
Email: nicole.stybnarova@helsinki.fi
Social & Legal Studies
ªThe Author(s) 2021
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DOI: 10.1177/09646639211023857
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2022, Vol. 31(2) 309–331
Introduction
Contemporary family reunification rules in Western Europe, exemplified in this article
through the EU and Danish migration laws, might seem to have little in common with the
US Page Act adopted in the late 19h century, which was notorious for excluding Chinese
women from immigrating to the United States. Yet, as this article argues, this juxtaposi-
tion reveals a historical continuity between the current and historical cases of adopting
laws that seek to prevent the victimization of migrant women and thereby promote their
equality; and in practice function as a tokenist legislation excluding from migrating the
very women that they claim to protect. The contemporary European and 19th-century US
contexts have obvious differences, such as the open racism and sexism of the US
legislators and the economic incentives driving US efforts to attract foreign labour. Yet,
the article demonstrates many striking similarities in the mechanisms of work behind the
legislation adopted in both cases. These similarities in law-making pertain to both the
explicitly good intentions, the discriminatory and harmful effects and the processes of
mystifying this discrepancy. The US legislation targeting Chinese immigrants is an apt
choice for comparison with current European migration law-making. Firstly, because
general scholarship of migration law emphasizes the continuity between late
19th-century US laws (and the subsequent case law of the US Supreme Court) and the
modern, sovereignty-centred conception of migration law in traditional Western immi-
gration states (Chetail, 2019: 46–48; Opeskin et al., 2012: 2; Plender, 1972: 51). Sub-
sequent to the stand American lawmakers adopted toward Chinese migrants, migration
control of non-emergent migrants in other Western immigration states was eventually
established doctrinally (Fourlanos, 1986: 55; Jennings and Watts, 1992: 897–898) and
through international and national case law (Chetail, 2016: 902) as part of ‘essentially
domestic jurisdiction’ (Charter of the United Nations, Art. 2(7)) with only fragmental
limits imposed by international law. Secondly, the Page Act is understood as one of the
first instances of conflating control of migration with control of women’s bodies (Andri-
jasevic, 2009: 390; Calavita, 2006: 115) – a conflation reappearing in the current family
reunification policies in the EU and Denmark.
In Denmark and other Western European states today, as well as on the EU level, a
variety of rules limit the applicability of certain family relationships for family reunifi-
cations: disqualifying polygamous marriage as a ground for family reunification; raising
the minimum age for spousal reunification above the national age for legal marriage;
creating a legal presumption of forced marriage in certain relationship constellations.
Preparatory and other policy documents suggest that the legislators intended to help
combat forced marriages and thereby promote equality of the sexes by protecting
women’s ability to consent. Feminist studies in migration law however point out the
limits of migration law tools to do this (Conradsen and Kronborg, 2007; Kofman et al.,
2013: 86). Limiting options for family reunification with the given measures in effect
curtails the immigration of ce rtain classes of migrants, partic ularly Muslims (Shah,
2003), but above all the women whose equality was of concern to the legislators
(Case Study 1). Moreover, the measures adopted do not result in meaningful consent
(Stybnarova, 2020; Naqvi, 2017).
310 Social & Legal Studies 31(2)
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