CHAPTER 1

Establishing a Transgressive Transnational Legal Order

If they don’t give you a seat at the table, bring a folding chair.
—Shirley Chisholm, quoted in Vanessa Williams, “ ‘Unbought and Unbossed’ ”
On the historic night of November 4, 2008, when Senator Barack Obama was elected president of the United States, I made a conscious decision to miss the celebrations. Instead, I put my joy and hope for change into a transnational justice initiative. After months of research, I confined myself to a hotel room for a week in an intensive effort to finish writing the bulk of the International Labour Office’s Report IV:1 on Decent Work for Domestic Workers (referred to as the Law and Practice Report) on decent work for domestic workers.1
Uppermost in my own mind throughout was the conviction that domestic workers had to remain central actors in the process, and they did. They mobilized and organized in support of the implementation of the Domestic Workers Convention and the Domestic Workers Recommendation, were involved in negotiating the terms, and have since ensured that the convention is ratified and both instruments are implemented. A complex dynamic has been set into motion, one that reflects the interplay between a new social movement from below and an old international organization uncertain about transnational change but certain that social justice must be front and center. I believe that negotiating decent work for domestic workers changed the International Labour Organization (ILO) and has helped increase certainty that international labor law has a transnational future.

Laying the Groundwork for New Labor Standards

The document that became the ILO’s Law and Practice Report, including the detailed questionnaire, needed to make the case that decent work for domestic workers was feasible, now. The report had to explain the past but also convince constituents that it was possible to break with that past. It needed to show how domestic workers were denied rights but also make the case that they had rights that needed to be recognized specifically and in context. It had to be technically sound, and it had to persuade. The questionnaire asked ILO members what specific provisions they would be prepared to accept in a convention and recommenation, in part on the basis of what they had learned and what had resonated with their experiences in the Law and Practice Report.
The first matter of business was to clarify any misconceptions about the ILO. It was necessary for the Law and Practice Report to be crystal clear about the fact that domestic workers were not starting from ground zero in terms of international labor standard setting. The report wound up emphasizing a pivotal starting principle: unless one of the hundreds of existing conventions or recommendations of a general nature expressly excluded domestic workers, those workers are included in each international instrument’s scope and are supposed to enjoy its protections.2 Domestic workers were covered under most international labor standards, including those that the ILO considered to be fundamental: those dealing with freedom of association and equality, the prohibition of forced labor and child labor.3 The ILO’s supervisory bodies, including the Committee of Experts on the Application of Conventions and Recommendations and the Freedom of Association Committee, had for decades interpreted international labor standards to make sure domestic workers’ rights were not overlooked. The supervisory bodies emphasized that domestic workers should have the freedom of association, and the Committee of Experts called for equal pay for work of equal value to valorize the skill involved in domestic work, condemned very specific conditions of racialized slavery in domestic work and forced labor conditions in migrant domestic work, and underscored the fact that domestic work was a prevalent (and often the worst) form of child labor.4
The Law and Practice Report documented a familiar international treaty-making practice: ILO members often spent a lot of time negotiating flexibility devices such as exception clauses into international labor conventions.5 Yet there was a paradox: “Although ILO members have expended considerable efforts in the drafting of flexibility clauses, few have resorted to them in practice.”6 It was clear that even governments that might exclude domestic workers from the scope of their legislation were seeking guidance on how to do things differently. New international labor standards were a way to start.
Traditionally, domestic work was considered to be something other than work. The Law and Practice Report emphasized that the specificity of domestic work—the fact that it takes place in households, is care work central to our humanity, and is vital to enabling and sustaining work outside of the household—made it all the more important but still did not make it something other than work. The report particularly acknowledged the taken-for-granted skill and effort that goes into carrying out domestic work, to make it visible as work.
I started to frame the specific regulation of domestic work with a deliberate juxtaposition: “work like any other” and “work like no other.”7 The juxtaposition of these two ideas was widely cited and debated in the academic community, as some scholars sought to choose one or the other.8 My position has consistently been that both are necessary. It is not enough to say that domestic work is work like any other and delete the words in an international labor convention or a national law that lists domestic workers among the exclusions. I argued that “the challenge here is to move beyond the formal—but largely invisible—inclusion of domestic workers in labor legislation and toward the specific regulation of their employment and their real visibility.”9
History helped some people to see this point. Domestic work is primarily done by women, as it is gendered. But who were the specific women and men who did domestic work in other people’s households? Asking that question brought difficult, unsettling histories to the fore, especially histories of slavery and colonialism.10 Their legacies still affect who does the work: racialized or Indigenous people were expected to do it, on the basis of some supposedly innate predisposition to domestic servitude. I kept reinforcing the point that to make any real change, it was important to focus on the specific ways in which domestic workers faced not just typical employer control, but vestiges of servitude in the work that they did. It was important to see this, name it, and find a way to change it. The “it” was a form of law that I called the law of the household workplace. That law kept domestic workers in positions of exploitation and actual exclusion, even when they were technically included in labor laws and ratified international labor conventions.11 The Law and Practice Report concluded that “mere tinkering with informal rules in formal legislation is not enough.… A complementary mix of carrots and sticks—capacity building for domestic workers, implementation incentives for employers and robust enforcement by governments—is needed” to achieve decent work for domestic workers.12
It helped a great deal that through the Law and Practice Report, it was possible to point to the many examples of creative experimentation related to domestic work that were under way worldwide. The ILO could support the case that “well-crafted regulatory mechanisms with a suitable enforcement machinery make an important difference in the everyday lives of domestic workers—and they convey the message that domestic workers are indeed workers who deserve both rights and respect.”13 One researcher has subsequently referred to the report as an “exhaustive” document on the specificity of domestic work in the contemporary economy, which included a detailed survey of national and international law that “set the stage for discussions on international standards.” She added that “the comprehensive nature of this report aided governments in responding to the closing questionnaire.”14 The questionnaire apparently received a higher response rate than any such document in the previous fifteen years, which may have been why it played such a large role in the committee’s discussions.

Who Was in the Room? Reinvigorating the International Labour Conference

With a copy of the Law and Practice Report and the draft conclusions in delegates’ hands, the 99th International Labour Conference (ILC) Committee on Decent Work for Domestic Workers began its work. Geneva’s flora was in full bloom in June 2010, but one of the most peaceful places on earth was also filled with urgency. Domestic workers had come from around the world, united in their pursuit of a long overdue act of social justice: international recognition as workers.
The committee met not in the gray concrete building that houses the ILO, but rather in the monumental Palais des Nations of the United Nations (UN). The room was packed, and because so many domestic workers were present, it was not filled just with the usual suspects. Even the way the space was organized spoke volumes: In addition to the front podium, where the representative of the secretary-general of the International Labour Conference (that is, the director-general of the International Labour Office), the chairperson, and the experts and technical staff members were seated, and the middle ground floor, where the interpreters sat, there were three large areas for the ILO’s tripartite constituents. Government officials from countries as diverse as the United States, Uruguay, and the United Arab Emirates occupied the large space in the middle of the meeting room, loosely arranged in alphabetical order according to their country’s name, flanked by representatives of the main employers’ federations on the right. On the left was the workers’ delegation. Some domestic workers were scattered among the habitual attendees of the workers’ group, who had worked hard to build as representative a group as possible. Just behind the workers and farther off to the side were all other people considered to be observers—which included most domestic workers (figure 3).
FIGURE 3. The Committee on Decent Work for Domestic Workers. Credit: ILO.
The international organization predates the UN system—it was initially part of the League of Nations, founded as part of the Treaty of Versailles in 1919. The ILO’s tripartism means that nonstate actors make international law, which sets it apart from other treaty-based international organizations.15 The negotiation process for the Domestic Workers Convention and the Domestic Workers Recommendation with domestic workers present in the room offered an unparalleled opportunity to address some of the criticism of the ILO’s tripartite structure and begin to imagine reinvigorated deliberation on the ILO’s future.16

Domestic Workers’ Labor Rights as Human Rights: Shifting the Frame

Creating the proposed Domestic Workers Convention and Domestic Workers Recommendation was a tall order, and the challenges involved could easily have scared away the faint of heart. Yet the claim in the proposed international labor standards was, at its heart, a simple claim, and it resonated with domestic workers’ social movements as well as those who took the time to understand why this work was so important. Groups like the National Domestic Workers Alliance lost no opportunity to underscore the fundamental humanity of care work as well as its economic importance in the home as the part of the “central dignity and humanity of caring for others.”17 Domestic workers had a substantive equality right to be meaningfully included in labor law.
I wanted the ILO’s standard-setting process to be part of a rethinking of labor law’s boundaries. The biggest challenge was to ensure that domestic workers have the right to be included in labor law.18 This was significant because the Domestic Workers Convention and the Domestic Workers Recommendation were not intended to be symbolic instruments or even an abstract charter of rights. They were detailed and comprehensive. They were meant to give broad meaning to the notion of decent work that the ILO had been championing since 1999. Under the convention and recommendation, decent work would come to include decent working conditions and much more. It would come to mean recognizing domestic workers’ rights to equality and the freedom of association and providing protection against forced labor and child labor. It would come to include access to social protection such as maternity leave, occupational safety and health, and social security protections—even though there is some recognition of the need to improve some protections progressively. But there was still more in the documents. A premium was placed on making sure that mechanisms for inspection and dispute resolution were available. Decent work would also mean that special attention was needed to the nature and terms of contemporary labor migration, at the very least to rein in exploitative practices.

Deliberation through Definition: How Standards Solidify

After exchanging congratulatory words in their introductory statements, delegates got down to business. Soon they were deliberating over the definition of “domestic work” in article 1. They poured over potential carve outs for “babysitters” and even “au pairs,” despite the care taken in the Law and Practice Rep...