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Susan Martin – Georgetown University

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Susan Martin – Georgetown University

Promoting the Rights of International Migrants
The legal and normative framework on international migration includes binding international law as well as non-legally binding best practices and principles. Certain international instruments affecting management of migration have been widely ratified (for example, 145 States have ratified the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees). Others have entered into force with relatively few parties (for example, only 27 States, all principally source countries of migration, have ratified the UN Convention on the Protection of All Migrant Workers and Members of Their Families).
Existing international law provides useful contributions to a normative and legal framework regarding:

  • The powers and responsibilities of individual States to manage movements of people across their borders,

  • The rights and responsibilities of international migrants, and

  • State cooperation in managing international movements of people.

Nevertheless, the gaps in international law and norms remain, particularly related to migration for family and economic reasons.

States possess broad authority to regulate the movement of foreign nationals across their borders. Although these authorities are not absolute, States exercise their sovereign powers to determine who will be admitted and for what period. In support of these powers, States enact law and regulations to govern issuance passports, admissions, exclusion and removal of aliens, and border security. States vary in the types of laws and regulations adopted, with some being more restrictive than others are, but all States adopt rules that govern entry into and exit from their territories.
The authority of States is limited by certain rights accorded foreign nationals in international law. Non-nationals enjoy all of the unalienable rights applicable in international law. The International Covenant on Civil and Political Rights (ICCPR) defines such basic rights of all persons as: the right to life, liberty and security; the right not to be held in slavery or servitude; the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; the right not to be subjected to arbitrary arrest, detention or exile; the right to marry and to found a family. Additional rights are conveyed by the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child (CRC).
More specifically related to movements of people across international borders are provisions granting rights in the Convention Regarding the Status of Refugees, the Convention against Torture, the Convention on the Rights of All Migrant Workers and Members of their Families, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, both of which supplement the United Nations Convention against Transnational Organized Crime.
In the Americas, the American Convention on Human Rights provides a right to human treatment (Article 5), a right to seek and be granted asylum (Article 22), a right to equal protection (Article 24), and a right to judicial protection (Article 25) that applies to non-nationals. The Inter-American Commission on Human Rights and the Inter-American Court on Human Rights were established pursuant to the American Convention on Human Rights. The Inter-American Commission on Human Rights (IACHR) monitors the status of the human rights of migrants through its own Special Rapporteur on Migrant Workers and their Families.
Most of the international conventions and protocols have been ratified by a wide range of States, but the Migrant Rights Convention has been ratified by only 34 States. No major destination country of international migrants is among its State parties although such States as Mexico, which is source, transit and destination country, have become parties to the Convention. The obstacles are both practical and political.
On the practical side, the MWC is extensive and complex, raising technical questions as well as financial obligations on State parties.8 For example, Article 65 of the Convention requires States Parties “to maintain appropriate services to deal with questions concerning international migration of workers and members of their families. Their functions shall include, inter alia:
(a) The formulation and implementation of policies regarding such migration;

(b) An exchange of information, consultation and co-operation with the competent authorities of other States Parties involved in such migration;

(c) The provision of appropriate information, particularly to employers, workers and their organizations on policies, laws and regulations relating to migration and employment, on agreements concluded with other States concerning migration and on other relevant matters;
(d) The provision of information and appropriate assistance to migrant workers and members of their families regarding requisite authorizations and formalities and arrangements for departure, travel, arrival, stay, remunerated activities, exit and return, as well as on conditions of work and life in the State of employment and on customs, currency, tax and other relevant laws and regulations.
Further, although almost all States have some emigration and immigration, States with relatively low levels of migration may see no particular reasons to ratify the Convention.
On the political level, the Convention raises basic questions about State sovereignty, particularly regarding the capacity of States to deter irregular migration. Even though the Convention requires States Parties to cooperate in curbing irregular migration and returning those without authorization to remain in a destination State, many receiving countries are concerned that the rights granted to irregular migrants will hinder their ability to control such movements. Some States are concerned that specifying the rights of irregular migrants will serve as a magnet, drawing them to their territory. A Dutch government paper on the Convention explains the reluctance of the Netherlands to ratify: “The granting of certain social and economic rights on the part of the state is considered to be more of an encouragement for illegal residence and employment than a deterrent.”9
Even with regard to documented migrants, “the Convention’s central concept of non-discrimination interferes with explorations of other forms of temporary immigration in which this principle would not be fully abided by.”10 In effect, States often see a trade-off between the number of migrants admitted and the generosity of rights bestowed upon them. Providing rights equivalent to nationals, particularly when such rights entail financial obligations on the part of receiving States, may severely limit the number of migrants to be admitted. Otherwise, States fear, there will be a public backlash against migrants who are perceived as being costly to taxpayers. Even when there is little factual basis to such charges, and migrants can be seen to be contributing to the economy, publics may perceive migrants to be competitors for limited jobs and resources.
Some States see no need to ratify the Convention, arguing that other human rights instruments already provide protection of the most fundamental rights outlined in the Migrant Rights Convention. Or, they argue, national laws provide adequate protection. Other States, however, see the MRC as promoting rights not specified elsewhere and not necessarily in their national interest. The Dutch paper discussed above holds that the MRC “contains a number of new provisions that were not previously included in broadly ratified treaties.11 In particular, the Dutch paper argues, the Convention grants a right to family reunification not only to legally resident migrants but also to illegally resident ones.12
Advocacy at the national and local levels appears to be the most likely inducement to State ratification or, in its absence, greater protections for migrant rights. To the extent that there is a vocal and well-organised constituency in support of migrant rights, States are more likely to overcome their concerns about the Convention. States may also re-think ratification if the provisions in the Convention relating to inter-state cooperation in combating irregular migration can be operationalized into concrete actions. States may be more willing to extend rights to migrants if they believe they are able to effectively control who and how many persons migrate.
Policies and programs at the national level can be effective ways to protect the rights of migrants. The better-informed workers are prior to migrating, the better able they are to assert their rights. Access to language training courses in destination countries will also help migrant workers to learn of and assert their rights when employers or family members violate them. Monitoring recruitment agencies and employers is essential to the protection of migrant workers. When abuses occur, legal representation for migrant workers can help them fight against discrimination, sexual harassment, lost wages and other violations of their labour rights. Programmes that provide shelter and social services to migrant workers who have experienced abuse are essential to protecting their rights. Migrant workers who decide to return home after escaping abusive conditions may also need assistance in repatriation and reintegration. Consular protection can play an important role in ensuring that migrant workers do not face abusive situations. Consular officers can monitor the security of migrant workers in potentially vulnerable positions, using their diplomatic positions to engage the host country in interceding in favour of the migrant worker.
A weak but growing body of international law and effective practices focus on international cooperation in managing international migration, including protection of migrant rights. The Trafficking and Smuggling Protocols set out specific areas in which State Parties agree to cooperate with each other. The protocols emphasize information exchange, training, public information and other joint efforts to prevent smuggling and trafficking. Implicit in this model is the recognition that unilateral actions on the parts of States will be ineffective in addressing transnational problems that affect all countries.
The 1951 UN Refugee Convention and regional agreements on refugees promote international cooperation as a way to share responsibility for assisting, protecting and finding solutions for persons who cannot rely on their own governments. Again, implicit in this approach is the need for international cooperation to address a phenomenon that is beyond the capacity of any one country. The forms of international cooperation include the sharing of financial resources and the potential movement of refugees and others in need of protection from one country to another. A key role is assigned to the United Nations, particularly the UNHCR, not only in protecting the rights of the refugees but also promoting cooperation among States.
Weak institutional arrangements make international cooperation in promoting the rights of migrants all the more difficult to achieve and retard the development of effective legal and normative frameworks. To date, much of the consensus building has taken place through ad hoc, informal mechanisms such as the Berne Initiative, at the international level, and the various consultative mechanisms established at the regional level, including the Regional Migration Conference in the Americas.

Moving from the current arrangements to a more robust international regime may be premature, however. While there has been progress in setting out common understandings, there continue to be fundamental disagreements among States as to causes and consequences of international migration and the extent to which it is in the interests of States to liberalize or restrict flows of migrants. This situation contrasts sharply with the general consensus that governs movements of goods, capital and services—that it is in the ultimate interest of all States to lessen barriers to the movements of these factors.

Yet, there is growing consensus that a well-regulated and more comprehensive framework for managing international migration would be in the best interest of both States and migrants. There is no inherent conflict between policies that protect State interests and security and those that protect the rights of migrants. In fact, to be sustainable, international migration laws and policies must address a wide range of issues, including but not limited to the following:

  • Legal channels for migration of persons seeking work opportunities in other countries;

  • Protection of the rights of migrants and their families, including persons who have been smuggled or trafficked;

  • Protection of refugees and durable solutions to refugee problems;

  • Prevention of human smuggling and human trafficking and protection of survivors; and

  • Return, readmission and reintegration of persons who do not have, or no longer have, authorization to remain in a destination country.

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