Counterbalancing the Legislative Precariousness of Domestic Carework in Switzerland through Civil Rights – Potentials & Limitations of the Human Rights-Centred Approach in the Swiss Context

Seminar with Gabriela Medici, PhD Candidate, University of Zurich; Graduate Research Trainee at the Labour Law and Development Research Laboratory, McGill University Faculty of Law. Part of the Labour, Migration and Development Seminar Series, presented by the Hans & Tamar Oppenheimer Chair in Public International Law and the Labour Law & Development Research Laboratory.

Abstract

The European Union’s extension of free movement to Switzerland has led to an increasing number of Eastern European women providing care for the elderly in private Swiss households. These migrant care workers operate in an informal or “semi-legal” setting often associated with precarious working and living conditions.

This presentation will relate the growing international discourse on the impact of human rights on labour law to the current Swiss constitutional and labour regulatory framework for domestic workers. Over the past years, the discourse has begun to recognise core labour rights in the form of positive state obligations to regulate and implement traditional civil rights guarantees (such as the right of privacy and family life, personal and economic freedom, the prohibition of servitude and forced labour) as well as procedural guarantees and the prohibition of discrimination. Unlike social and economic human rights guarantees, these rights are firmly enshrined in the Swiss constitution and in justiciable international human rights instruments – especially in the ECHR.

I argue that this development contributes towards understanding and counterbalancing the current legislative precariousness of migrant caregivers in Swiss households. I also discuss the limitations of using this approach to advance their protection and empowerment, as it can only address some very fundamental issues and could lead to further victimization of domestic caregivers.

Gabriela Medici is a doctoral candidate, under the supervision of Professor Regina Kiener, at the Faculty of Law, University of Zurich in Switzerland. She is currently a Graduate Research Trainee at the Labour Law and Development Research Laboratory, McGill University Faculty of Law, under the supervision of Professor Adelle Blackett, funded through a Mobility Fellowship of the Swiss National Science Foundation.