Rethinking migrant rights

In 1990, the General Assembly of the United Nations (UN) adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW). The Convention stipulates a very comprehensive set of civil, political, economic, and social rights for migrants, including those living and/or working abroad illegally. Hailed as a major achievement in the struggle for improving the rights of migrants, the CMW has become a cornerstone of the human rights–based approach to regulating labor immigration advocated by many national and international organizations concerned with the protection of migrant workers.

In practice, ratification of the 1990 convention has been disappointing, both in absolute and relative terms. Although the CMW was introduced more than twenty years ago, so far fewer than fifty countries have ratified it—and the great majority of these countries are predominantly migrant sending rather than migrant receiving. This makes the CMW the least ratified convention among all the major international human rights treaties. It has a quarter of the ratifications of the Convention on the Rights of the Child (passed a year before the CMW) and less than half of the ratifications of the Convention on the Rights of Persons with Disabilities (passed sixteen years after the CMW).

“Migrant rights are human rights” is a common argument made by migrant rights advocates around the world. But nation states, especially major migrant-receiving countries do not see it that way. Despite having signed general human rights treaties, most nation-states, especially major immigration countries, are clearly reluctant to ratify international conventions that limit their discretion and ability to restrict the rights of migrants living and working in their territories.

Why have so few countries ratified the CMW? The existing literature has identified a host of legal issues and complexities as well as a lack of campaigning and awareness of the CMW and other international conventions as key factors (see, for example, the introduction in Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights, edited by P. de Guchteneire, A. Pécoud, and R. Cholewinski, Cambridge University Press, 2009).

I argue in my new book, The Price of Rights: Regulating International Labor Migration, that the primary explanation for the low level of ratifications of international migrant rights treaties lies with the effects of granting or restricting migrant rights on the national interests (however defined) of migrant-receiving countries. This may sound like an obvious point, but the dearth of discussion about the multifaceted costs and benefits of specific migrant rights for receiving countries—and migrants and their countries of origin—suggests that this is an important gap in analysis and debates that needs to be urgently addressed.

Migrant rights as instruments of labour immigration policy

There is a large gap between the rights of migrant workers stipulated in international human rights, law and the rights that migrants working in high-income countries experience in practice. Many UN agencies and other international and national organizations concerned with migrant workers have responded to the widespread restrictions of migrant rights by emphasizing that migrant rights are human rights that are universal, indivisible, and inalienable; they derive from a common humanity and must be protected regardless of citizenship.

A key argument and starting point of my book The Price of Rights is that we need to expand current debates and analyses of migrant rights by complementing conversations about the human rights of migrants with a systematic, dispassionate analysis of the interests and roles of nation-states in granting and restricting the rights of migrant workers. This is because the rights of migrant workers not only have intrinsic value as underscored by human rights approaches but also play an important instrumental role in shaping the effects of international labor migration for receiving countries, migrants, and their countries of origin.

For example, whether or not migrants enjoy the right to free choice of employment and other employment-related rights in the receiving country’s labor market is likely to affect their productivity and earnings, remittances, and competition with local workers. The fiscal effects of immigration critically depend on whether and how migrants’ social rights (including access to public services and welfare benefits) are restricted. Migrants’ incentives and behavior in and beyond the labor market—for instance, the extent to which they acquire language and other skills relevant to employment and life in the host country—will be influenced by whether or not they have—or are on a path to acquiring—the rights to permanent residence and citizenship.

Because rights shape the effects of labor immigration, migrant rights are in practice a core component of nation-states’ labor immigration policies. At its core, the design of labor immigration policy requires simultaneous policy decisions on: how to regulate the number of migrants to be admitted (e.g., through quotas or points-based systems); how to select migrants (e.g., by skill and/or nationality); and what rights to grant migrants after admission (e.g., temporary or permanent residence; access to welfare benefits; and limited or unlimited rights to employment). When receiving countries decide on these three issues, the impacts on the “national interest” (however defined) of the existing residents in the host countries are likely to be of great significance. Policy decisions on the number, selection, and rights of migrant workers can also be influenced by their consequences for the interests of migrants and their countries of origin, whose actions and policies can play an important role in supporting, sustaining, or undermining particular labor immigration policy decisions in migrant-receiving countries.

The important implication of this approach is that migrant rights cannot be studied and debated in isolation of admissions policy, both in terms of positive and normative analysis. To understand why, when, and how countries restrict the rights of migrant workers, and to debate what rights migrant workers should have, we need to consider how particular rights restrictions are related to policies that regulate the admission (i.e., the numbers and selection) of migrant workers.

Trade-offs between “access and rights”

In The Price of Rights, I examine labour immigration policies in over 45 high-income countries, as well as policy drivers in major migrant-receiving and migrant-sending states. A key finding is that there are trade-offs in the policies of high-income countries between openness to admitting migrant workers and some of the rights granted to migrants after admission. Greater equality of rights for new migrant workers tends to be associated with more restrictive admission policies, especially for admitting lower-skilled workers from poorer countries. The tension between “access and rights” applies to a few specific rights that are perceived to create net-costs for the receiving countries including especially the right of lower-skilled migrants to access certain welfare services and benefits.

The trade-off raises a dilemma. From a global justice point of view, both “more migration” and “more rights” for migrant workers are “good things”. The World Bank believes that more international labor migration, especially low-skilled migration which is currently most restricted, is one of the most effective ways of raising the incomes of workers and their families in low-income countries. At the same time, rights based organizations such as the ILO and many activists campaign for greater equality for rights for migrant workers. But the trade-offs between access and rights means that we cannot always have both – more migration and more rights – so a difficult choice needs to be made.

Most low-income countries around the world are acutely aware of the trade-off between access to labour markets in high-income countries and some migrant rights. Few migrant-sending countries are willing to insist on full and equal rights for fear of reduced access to the labour markets of higher-income countries. As I discuss in my book, some migrant-sending countries have explicitly rejected equality of rights for their nationals working abroad on the grounds that it constitutes a restrictive labour immigration policy measure.

International debates about the global governance of migration have almost completely ignored the trade-off between openness and rights. The High-Level Dialogue on Migration and Development in New York and the Global Forum on Migration and Development in Sweden in 2014 should openly debate the desirability or otherwise of restricting specific rights, for how long, under what circumstances, and so on. We need a reasoned debate between organizations that advocate more migration to promote development, such as the World Bank, and those primarily concerned with the protection and equality of rights, such as the ILO.

How to respond to the trade-off between openness and rights is an inherently normative question with no one right answer. I argue that there is a strong case for advocating the liberalization of international labor migration, especially of lower-skilled workers, through temporary migration programs that protect a universal set of core rights and account for the interests of nation-states by restricting a few specific rights that create net costs for receiving countries, and are therefore obstacles to more open admission policies.

The case for a ‘core rights’ approach

We should start discussing the creation of a list of universal ‘core rights’ for migrant workers that would include fewer rights than the 1990 UN Convention of the Rights on Migrant workers with a higher chance of acceptance by a greater number of countries – thus increasing overall protection for migrant workers including in countries that admit large numbers of migrants. Importantly, the list of core rights could complement rather than replace the existing UN conventions for migrant workers.

There is an important precedent within the UN system for a core rights approach, i.e. for stressing the fundamental importance of specific rights from a larger list of rights. In 1998, the International Labor Organization (ILO) passed the Declaration on Fundamental Principles and Rights at Work, commonly known as “core labour standards”. The declaration commits Member States to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions. These categories are: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.

The ILO declaration therefore identified a short list of fundamental rights that are given pre-eminence over other ILO conventions. The core labour standards were adopted in the context of dwindling numbers of ratifications of ILO conventions and a general criticism that the ILO’s labour standards were not effective enough at protecting workers’ rights in a rapidly globalizing world. So there is a direct parallel with the migrant workers conventions.

The adoption of a core rights approach to international migration obviously requires debate about what exactly these core rights should be. There is no one right answer to this question. Different people, organizations and countries will disagree. But it is a debate that is long overdue and that should be at the centre of the upcoming debates about the global governance of international migration.