Another theoretical lens that informs how social justice advocates understand cross-border practices is international human rights law. There is a growing movement in the United States to use international human rights norms and accountability mechanisms to push for social change.118 Nongovernmental organizations increasingly participate in UN institutions by writing shadow reports, hosting panels and speakers alongside major UN conferences, and writing reports that utilize international human rights laws and norms. In other countries like France, which I discuss in Chapter 7, regional human rights conventions provide an even stronger basis for individuals to challenge domestic laws.
While American feminist legal theory would focus on the context where a regulation is being considered, in evaluating cross-border practices through the lens of international human rights law, one might be tempted to focus on the context of the country of origin of the migrant. The universal perspective of rights suggests that once it is determined that a practice violates human rights in one context, it will be a rights violation (since rights are constant across geographies) when it emerges in another context. Indeed, the UN’s major policies on sex-selective abortion address it only in contexts where it first emerged like China and India and not in the United Kingdom or the United States where migrants from Asia are thought to practice it.119 The international human rights perspective does not necessarily encourage scholars and policymakers to deeply examine the migrant-receiving country context in evaluating regulations on cross-border practices.
On the other hand, the insights of the field of transnational law can be used to draw attention to the importance of both the migrant-receiving and migrant-sending context in evaluating whether a regulation on immigrant women’s behavior will promote equality or contravene it.120 Since Philip Jessup conceptualized “transnational law” in 1956, a vast literature within that field has emerged.121 Harold Koh’s insightful article explains that transnational legal process is the interaction of domestic norms with international norms.122 Carrie Menkel-Meadow describes “transnational law” as the study of legal phenomena, including lawmaking processes, rules, and legal institutions, that affect or have the power to affect behaviors beyond a single state border.123 The concept encompasses a growing web of global connections. Transnational law, however it is defined, is certainly distinct from international law, which governs the relationships between states/countries.
In a way it may be fruitless to attempt to define the substance of transnational law. Professor Zumbansen’s recent work describes transnational law more as a methodology. He notes:
Going beyond early work in international legal theory and partly drawing on the insights from transnational commercial law, we can begin to understand transnational law primarily as a methodological approach and less as a distinctly demarcated legal field, such as contract or administrative law. Transnational law, from this perspective, emerges foremost as a methodological lens through which we can study the particular transformation of legal institutions in the context of an evolving complex society.124
Drawing on this understanding of transnational law, I propose a transnational feminist legal methodology. This methodology provides a way to sort through questions about women’s equality on a global scale. It proposes a global framework that can be utilized to provide local solutions. Professors Knop, Michaels, and Riles’s proposal was also to develop a feminist methodology to resolve the debate they describe as one between equality and multiculturalism. Although I frame the debate differently than they do, like them I do not come up with a resolution to the debate but rather develop a methodology for evaluating what equality means in relation to cross-border practices.125 I call it a feminist methodology because it focuses on women in evaluating the competing rights that are often in question in bans on immigrant women’s behavior.
When people, practices, and knowledge move across borders fluidly and quickly, we need to consider multiple contexts to design appropriate regulations to these cross-border practices. As noted above, American feminist legal theory might point to one context (the country of destination of the immigrant) while international human rights law may suggest another (the country of origin of the immigrant). A transnational legal methodology, because of its emphasis both on the international and the domestic/local,—encourages us to focus on multiple contexts in evaluating a ban in one country. Transnational law highlights the interactions of domestic laws and contexts in the increasingly global web of connections among people, corporations as well as goods, services, and knowledge.
To evaluate whether or not a practice is discriminatory or oppressive to women in the migrant-receiving country, we must examine that context. Social institutions, historic subjugation and inequality, and other factors give meaning to the practice as discriminatory to women. Researchers should investigate why the practice is considered to be discriminatory or repressive to women. Is it because the practice is widespread or is it because of unequal social institutions? What are the social institutions that reflect gender inequality? In addition, the scope and magnitude of the practice should be determined.
In order to properly understand the human rights consequences of a practice as it emerges in a new country, I suggest also studying the practice in the context where it first emerged. How widespread is the practice migrant-sending country? What are the individual motives of the women who undertake it? What societal institutions contribute to the practice? As I have noted, perceptions about cross-border practices are informed by knowledge often channeled through the sound bites of media rather than by in-depth studies in the country of destination of the migrant.
After understanding the practices in the two contexts (the migrant-receiving country and migrant-sending country), I propose a comparative study of these contexts. Do women undertake the practice at the same rate in both countries? Do the same social institutions give rise to the practice in the country of origin of the migrant exist in the country of destination? What (if any) societal factors present in the migrant-receiving country that give rise to the practice are absent in the migrant-sending country? Are there different factors in the migrant-receiving country that explain the reasons for the practice? Through this comparative study, we can better determine the human rights impact of the cross-border in the migrant-receiving countries.
Both quantitative and qualitative approaches are necessary to understand the practice in context. Even though traditionally feminist scholars had rejected quantitative methodologies,126 I embrace them and structure my own research in a way that takes into account the criticisms of the critical race scholars in regard to quantitative empirical study. Ascertaining the scope of the practice (i.e., how many migrants actually undertake the act) can best be done by quantitative methodologies. On the other hand, qualitative methods help understand the reasons why people engage in an act. The intent behind a person’s behavior is relevant to determine whether or not their behavior is discriminatory or violates human rights. To the extent that we can get honest responses, the best way to ascertain motives for behavior is by asking the people who undertake the behavior. This can be done through individual interview-based methods or through surveys of people that are representative of the entire group. Researchers may fail to undertake this survey-based research if they believe that the motives of immigrants in undertaking cross-border practices are the same as the motives for people who undertake similar practices in the country of origin of the immigrant.
Looking at the practice across multiple contexts helps to ascertain its human rights implications and also makes it possible to develop a legal test that can be used to evaluate bans across borders. The legal test should be transnational in its applicability, but must also be able to be used locally to implement solutions suitable to the context. Unlike universalist approaches, a transnational feminist legal approach is open to this possibility that a practice that appears to be harmful or discriminatory to women in one country context may not have that impact in another country context.