Beyond Trafficking and Slavery

The UN Convention on Migrant Workers’ Rights at 25

The UN Convention on Migrant Workers' Rights has not yet been ratified by a single western migrant-receiving state, despite being one of the UN's core human rights instruments.

Antoine Pécoud
18 December 2015

Machar Colony near Karachi, Pakistan on 3 Nov. 2009. Balazs Gardi/Flickr. Creative Commons.

Twenty-five years ago, on 18 December 1990, the United Nations General Assembly adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This is the most ambitious international law instrument ever designed to protect migrants’ fundamental rights. But it is also one of the most unpopular treaties: only a small number of states have ratified it and no western migrant-receiving country has done so.

The Migrant Rights Convention belongs to the nine ‘core international human rights instruments’ adopted by the UN but, with just 48 state-parties, it is the least ratified. 189 states have ratified the Convention on the Elimination of All Forms of Discrimination against Women; 196 have done so with the Convention on the Rights of the Child. Even the most recent of these conventions, the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, has superseded the Migrant Rights Convention with 51 ratifications.

To make matters worse, the Migrant Rights Convention is resisted by precisely those countries that host most migrants, even though these are otherwise ‘human-rights friendly’ countries. Western European nations have ratified most human rights conventions, but not the one on migrants. The same applies to Canada, Australia or the United States. The Migrant Rights Convention is much less ratified than the Convention relating to the Status of Refugees (or Geneva Convention), which has 145 states parties. It is also less popular than the so-called Palermo Protocols against smuggling and trafficking, which have been ratified by 142 and 169 states respectively.   

In principle, the Universal Declaration of Human Rights applies to ‘all human beings’ and this includes foreigners, refugees or migrants. But in practice, not all people enjoy the same access to human rights, which explains why ‘extra’ targeted treaties have been designed and adopted. These treaties are not unique to migrants: women and children, for example, have also been recognised as particularly discriminated against, and thus in need of their own targeted protection instruments.

Like other instruments, the Migrant Rights Convention does not contain any new rights, but provides a more detailed interpretation of how existing human rights should apply to migrant people. This is politically important: irregular migrants, for instance, often themselves in a grey zone when it comes to labour standards, social protection or the right to unionise. The Convention is the only treaty that explicitly details their rights, thereby making it easier for irregular migrants and their advocates to claim them and have them implemented.

Similarly, like all conventions of this kind, it creates a monitoring system to check the extent to which states comply with their obligations—transforming migrants’ rights into an issue for multilateral discussion, in a way that challenges state sovereignty. Might this be why governments are so reluctant to sign up? Even when those governments that possess otherwise ‘good human rights records’?

Ultimately, the reasons behind the Convention’s low ratification rate are political and economic. In basic terms, if we analytically apply supply-and-demand logic, we see that receiving states have no real incentive to guarantee most migrants their rights. States such as the UK can access a virtually unlimited pool of foreign workers prepared to do the dirty jobs, no matter the legal protection on offer. By contrast, when it comes to more highly socially valued work and thus to more ‘skilled’ migrants, states like the UK need to accord more generous rights provisions in order to be attractive. It follows that in practice migrants’ rights are not a matter of universal standards, but rather of a state’s economic goals as pursued in its immigration policy. In this regard, the Convention would basically be incompatible with existing labour migration politics because it would grant rights to all migrants, no matter their skills or market value.

Beyond economics, migrant-receiving countries also have few political incentives to ratify the Convention. First, because migrants are foreigners, they do not vote and thus cannot put governments under electoral pressure. Second, because in a context of widespread anti-immigration sentiment, national electorates are unlikely to express solidarity with migrants by calling upon governments to grant them their rights. Third, because receiving states’ perceive a lack of ‘reciprocity’ at the international level: migration flows tend to be unidirectional, from ‘south’ to ‘north’. As such, northern states are reluctant to grant rights to migrants from sending states, knowing that those states have no need to grant the same to northern emigrants in reverse.

Although human rights are sometimes characterised by their being depoliticised (in that everybody at least formally agrees that they’re important), this is not the case with migrant rights. Contrary to other similar treaties, the Migrant Rights Convention remains contested—as if migrants were somehow less deserving than nationals when it came to human rights. This could not be more incorrect: the very idea behind human rights is precisely to go beyond the distribution of rights on the basis of nationality, wealth, or power. Today, migration flows are largely governed by a brutal market logic. The Convention runs against this logic: this explains why it is unpopular, but also why it has the potential to change the politics of migration, in at least three ways.

First, the Convention can contribute to a greater concern with migrants’ rights and protection, thereby establishing standards and principles in one of the most deregulated areas of globalisation. Second, by making these rights the object of international scrutiny, the Convention can foster a more genuinely global and balanced perspective on migration, thus counterbalancing the security-focused patterns of international cooperation that are fast developing. And lastly, the Convention challenges today’s immigration politics by placing labour and workers’ interests at the centre of the stage: the word workers in its title is indeed important, because it envisages the convergence of both national and migrant workers’ interests—precisely what the ILO rightly anticipated more than a century ago. This stands in sharp contrast with current managerial arguments surrounding the costs and benefits of migration, which assumes a neat distinction between a national community and foreigners, and which conditions the presence of the latter to the former’s interests. The universal logic of human rights is particularly relevant to challenging this ‘us and them’ divide, and for all these reasons, twenty-five years after it was adopted, the Migrant Rights Convention remains worth supporting.

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