My surprising finding is that it was the performance of technocratic neutrality, rather than a more explicitly partisan activism, that created a space for this new category of employees to be recognized and for international consensus to be secured on appropriate standards for this group. In other words, the ILO Domestic Workers Convention is an instance in which state interests were constructed and reconfigured by a rights-based framing of migrant rights that operated under the guise of apolitical and technocratic legalism. Technocratic legalism is usually associated with conservative tendencies, embodied in the Weberian ideal of formal and rational legal authority exercised without consideration of how societal resources should be allocated among groups. The progress of the Domestic Workers Convention offers insights into the ways in which the aesthetics of formalism and rationality can potentially propel progressive causes rather than just posing obstacles to their realization.
The paper contributes to recent debates among scholars of migration and citizenship regarding the capacity of human rights norms to transform immigration policies. Internationalist accounts have argued that a new transnational order based on human rights and enforced through international law would allow marginal migrants to claim rights even if they are not citizens. These claims have been subjected to criticism on conceptual grounds, namely that the international system does not require states to surrender their sovereignty, but also on empirical grounds, since national judiciaries have been most receptive to claims based not on substantive rights for marginal migrants but on principles of reasoned decision-making and a commitment to equal protection of the law. Drawing on the case study of the Domestic Workers Convention, I argue that it is too soon to categorically dismiss the potential for international human rights norms to shape the set of rights accorded to marginal migrants. As the Domestic Workers Convention shows, the ideas and institutions associated with international human rights law have become sufficiently formalized and technocratic so as to extend their reach into the domain of migration-related policymaking without arousing appreciable resistance. It is this legalization of the human rights system, I argue, that potentially creates space for the future development and expansion of migrant rights.
