Research focus: Regulating International Marriage Migration

By Professor Susan Kneebone

Professor Susan Kneebone

Legal responses to human trafficking often conform to the adage that ‘men migrate, but women are trafficked’.  But in our region, South East Asia, international marriage migration, which involves the movement of women, is emerging as a crucial example of the ‘feminisation’ of intra-regional migration and as a development strategy.  The main destination states for marriage migrants from Cambodia and Vietnam are South Korea, China and Taiwan.  For example, between 1987, when martial law was lifted, and 2008 it is estimated that 386,329 foreign women registered their marriages in Taiwan[1].   In 2005 it was reported that almost 14 percent of marriages in South Korea involved a foreign spouse[2].   Often the legal responses of states to international marriage migration involve conflating the issues with exploitation and human trafficking.  For example in 2008 the Cambodian Government issued a temporary ban on all foreign marriages amid concerns over the increase in number of commercial marriage brokers springing up to facilitate demands in marriage migration to East Asia.  Specifically, the ban followed as a result of findings published in a report issued by an International Organisation that examined vulnerabilities to human trafficking and other forms of exploitation faced by women who engaged or were recruited by commercial marriage agencies for prospective Korean grooms.  The ban was subsequently lifted and then reinstated.  Nevertheless, the number of marriages between Korean nationals and Cambodian brides continued to increase.  These responses and perceptions in turn impact upon how ‘foreign brides’ are received in Australia where there is a tendency to ‘problematise’ these arrangements as ‘forced’ or ‘servile’ marriage.

I am leading a new three-year project at the Law Faculty, Monash University, funded by the Australian Research Council (ARC), which is encapsulated in the title ‘Towards Development of a Legal Framework for Regulation of International Marriage Migration’.  This project is intended to lead to better understandings of, and responses to, the phenomenon of international marriage migration, and of the region, and of the link between this phenomenon and development within Asia.  In particular the project will investigate gaps and inconsistencies in the legal frameworks which apply to the regulation of international marriage migration.  It will compare the laws of ‘origin’ states such as Cambodia and Vietnam, and those of ‘destination’ states (South Korea, China and Taiwan) in relation to key concepts such as the purpose of marriage, the role of ‘the family’, the rights of women and of children born to such unions, and their citizenship and nationality.  For example, under Vietnamese law, the legislation (Marriage and Family Law of Vietnam 2000) is guided by the notion that ‘good families make good society and good society makes better families’ (Preamble).  The language of the Preamble demonstrates that the family unit is an important component of the nation and as such, the State plays a defining role in regulating the private lives of citizens in order to meet ‘collective ends’.  Although marriages between Vietnamese citizens and foreigners are respected and protected by law (Article 2(2)), the Preamble raises the possibility of ‘commodification’ of international marriage unions under Vietnamese law.

The main destination states for marriage migrants from Cambodia and Vietnam have strongly contrasting laws responding to international marriage.  For example, although South Korea has long been an ethnically homogenous society known for its patriarchal kinship and national purity, in response to high levels of international marriage migration, the country is evolving to become more multicultural.  Traditional laws that govern family, marriage and nationality have been adapted to meet modern demands.  The marriage migration movement has been a key factor in effecting this social change.  By contrast, in Taiwan the lack of legal reform in this context is matched by a high level of stigma as the phenomenon of international marriage migration is constructed in the media as ‘commodification’ of marriage between naive nationals and opportunistic foreign women.

This research deals with the rights of women from developing countries, about whom often paternalistic responses are invoked.  The phenomenon of ‘feminisation’ of ‘third world migration’ creates the risk that ‘disadvantaged’ women migrants from Asia are seen from an idealised perspective as passive vulnerable victims (whilst their wealthier counterparts are free to move, and to enter into strategic alliances).  In fact the evidence shows that migrating women are often better educated than their (prospective) overseas spouses and choose to migrate.  Thus international marriage migration can contribute to the development of both the receiving and country of origin (through remittances, and increased social capital).  International marriage migration thus potentially contributes to regional development.

This project follows on the heels of two previous studies under ARC grants in which I investigated issues of human trafficking in South East Asia.  The first project, conducted with colleagues Dr Julie Debeljak and Professor Bernadette McSherry, led to publication of Transnational Crime and Human Rights:  Responses to Human Trafficking in the Greater Mekong Subregion (Routledge, 2012) which contains an analysis of regional anti-trafficking cooperative arrangements and legal responses to human trafficking.  A key finding of that project was that the processes of human trafficking and labour migration / trafficking are intertwined.  The second project, ‘Delivering Effective Protection to Victims and Prevention of Human Trafficking in the Greater Mekong Sub-Region’ involved working with victims of trafficking and is leading to publication of three reports, the first of which has recently been published (with Blue Dragon Children’s Foundation, Child Labour and Migration: From Hue to Sai Gon, Vietnam).

Footnotes:
[1] Cheng, Nian-tzu, The Becoming of Immigrants from Outsider to In-Betweens: The National Identity of Immigrants in Taiwan, presented at 2009 Annual Meeting of American Political Science Organization at Toronto, September 3-6, unpublished, p.1. 
[2] Kim, Andrew Eungi, Global Migration and South Korea: Foreign Workers, Foreign Brides and the Making of a Multicultural Society, 8.