Ensuring migrant rights: an essential element to make migration work for development

Joanne Irvine
English

To mark International Human Rights day, 10th December, this blog is a reflection on the importance of migrants’ rights in the human rights and development agenda.

Since the creation of the Universal Declaration on Human rights in 1948, the international human rights protection system has come a long way and improved human rights for many. It is now generally understood that human rights are universal, indivisible and inalienable i.e. apply to all, everywhere, in equal measure and must be ensured. However, the extension of ‘special’ rights for the more vulnerable has always been a difficult process and still remains incomplete. This is especially the case when it comes to migrants’ rights.

Indeed, many migrants are exposed to human rights abuses, especially those in an irregular situation and can face discrimination, exclusion, exploitation in their jobs and abuse at all stages of the migration process. At times even the most basic labour protection and healthcare rights they can be denied and which can lead to cases of enslavement, rape or even murder. Indeed, human trafficking is now the third most lucrative business at global level and as increasingly restricted immigration policies and laws are being implemented across most developed countries, this only perpetuates irregular migration and the space for such violations.

 

Although all UN member countries have ratified at least one of the nine core international human rights treaties, with approximately 80% having ratified four or more, all developed countries have not ratified, for example, the International Convention for the Protection of Migrant Workers’ Rights and many continue to defend their borders with stricter immigration and asylum procedures.

This is, in part, due to the fact that general international law affirms the authority of states to regulate the movement of persons across their borders since states possess primary authority over their territory and population. An IOM report affirms this and describes state power over immigration as “generally stated in broad terms; that is, states are deemed to have wide discretion in crafting admission, residence, expulsion and naturalisation policies for non-citizens”. In this sense, the human rights of individuals, including immigrants, are frequently conceptualised as rights that challenge the sovereignty of states. However, this fails to recognise that such rights are protected within state sovereignty, particularly through the many existing international human rights agreements and conventions. This is especially the case when national security grounds arise in international law as exceptions to rights secured under human rights conventions, these take the form of limitations on rights or “clawbacks” or as grounds for derogating rights protected in any particular convention.

For example, with the International Covenant on Civil and Political Rights (ICCPR), it is provided that freedom of movement within the state territory and the right to leave a state “shall not be subject to any restrictions except those which are provided by the law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant”. This essentially allows immigrants to be expulsed on grounds of national security.

Rights protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR) – such as the right to work, to an adequate standard of living, to health, and to education are generally guaranteed to all persons within a state. This covenant also states that such rights “will be exercised without discrimination of any kind”. However, even the ICESCR includes a provision authorising a particular kind of discrimination against non-citizens: developing states are permitted to determine “to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals”. Indeed, the IOM affirms that state practice demonstrates widespread limitations on economic and social rights for example, through restricting the right to work and participation in social welfare programmes for various classes of immigrants.

So why are migrants’ rights so important for the migration and development agenda? Migrants’ rights are an essential first step to ensuring migrants´ contribution to a development agenda. Migrants’ cannot reach their full potential without having the right to vote, participate in public life, be fully integrated into society on the whole. Often, however, the successful integration of migrants is considered to be primarily of benefit to the individuals concerned. Yet both countries of origin and destination can benefit from the successful integration of immigrants. Indeed, a stable and supportive host environment where rights are ensured is likely to benefit the ability of migrants to contribute to development processes both in their communities of residence and of origin. This approach to integration is becoming an increasingly critical aspect of effective migration management. It compels countries of origin and destination to cooperate with each other in order to adopt integrated policy approaches that link migration to labour mobility, development cooperation, trade and investment. This has become especially the case with the realization that migrant communities are now more transnational than ever, relating to both their societies of destination and origin and therefore can act as actors to promote inclusion and integration of new comers as facilitators of investments in countries of origin.

In other words, in the same way that being marginalized impedes migrants from becoming development actors, denying migrants’ their rights impedes them from being able to fully integrate into society which in turn means that they cannot contribute to their host community or the development of their home regions. Protecting migrants’ right both pre-departure and on arrival is indeed an essential element to making sure that migrants are regular, have access to health and education and can therefore greatly contribute to the societies that host them. Indeed, for migrants to truly become development agents, they must be fully aware of and be able to claim their rights.

Migration is an increasingly controversial topic, but when you look at how far the developed world has come in terms of protection of human rights, failing to protect the human rights of everyone regardless of nationality, is discriminatory and socially unjust and, let’s face it, just a little bit hypocritical. This is especially the case when international development aid to developing countries comes conditional upon improving democracy, governance and human rights in receiving countries. Furthermore, in the midst of an economic crisis, and particularly the Eurozone crisis, with increasing irregular migration and increasingly negative views of migration on the whole, governments are overwhelmed with pulling themselves out of economic turmoil and combating unemployment and easing social tensions rather than ensuring migrants’ rights or integration in host countries, which, paradoxically can lead to improved social cohesion and economic development.

By now, we know how migration can benefit development in both countries of origin and countries of destination, but this particular argument hasn’t seemed to work in bringing about much change, has it? Neither has 60 years of flying the flag of democracy, human rights and equality for all. So let’s bring the debate down to what, unfortunately, seems to be all that matters at the moment:  money. Because the thing is, IOM has highlighted that given the current global market, labour and demographic trends, migration has become essential for economic growth, development and competitiveness. With decreasing populations and an ageing population in the North, the UN has predicted that if the EU wanted to maintain a constant ‘support ratio’ (the number of working people for each person older than 65) to uphold the economy as it is, the EU would have to achieve net annual immigration of 13 million. In 2008, according to the EU’s Eurostat information, net immigration to the EU was 3.8 million and had decreased from 4 million in 2007. In the developed world in 2050 then, we will essentially be begging for migrants to come fill major labour gaps and ensure that we can compete with entrepreneurship and innovation in all fields at the international level. This will not be possible if improvements in the international migration law system are not carried out and if migrants’ rights are not fully ensured to enable them to reach their full potential as development actors for both home and host countries.