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Debate: UN Convention on the Rights of Migrant Workers and their Families

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Background and context

This pro/con article was created for the Spring 2011 topic of the The Global Debates: "All states should immediately ratify the UN Convention on the Rights of Migrant Workers and their Families." We've created this article and the broader Global Debates International Migration Portal to help contestants develop their cases. The United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was signed in 1990 and entered into force in 2003.
The Committee on Migrant Workers (CMW) monitors implementation of the convention. The treaty is meant to ensure minimum protections to all migrants, focusing on ensuring freedom from discrimination based on race, national or ethnic origin, sex, religion or any other status, in all aspects of work, including in hiring, conditions of work, and promotion, and in access to housing, health care and basic services. It also ensures freedom from arbitrary expulsion from their country of employment and protection from violence, physical injury, threats and intimidation by public officials or by private individuals, groups or institutions. The treaty recognizes that legal migrants have the legitimacy to claim more rights than undocumented migrants, but it stresses that undocumented migrants must see their fundamental human rights respected. Many nations have signed, but most are countries of origin of migrants. No Western migrant-receiving State has ratified the Convention, even though the majority of migrants live in Europe and North America. Other important receiving countries, such as Australia, Arab states of the Persian Gulf and India have not ratified the Convention either. This means that the treaty is not in effect where the majority of migrants actually live and work. So, one of the main questions in this debate is whether these specific non-signatories should jump on-board and sign. They often contend that the treaty will limit their national immigration control policies. But, supporters argue it will do no such thing. These and other arguments are outlined below.
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Solution? Does the convention help solve a problem, or create problems?

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Pro

  • Massive growth of migration demands greater protections Jason Deparle. "Global Migration: A World Ever More on the Move." New York Times. June 26th, 2010: "One reason migration seems so potent is that it arose unexpectedly. As recently as the 1970s, immigration seemed of such little importance that the United States Census Bureau decided to stop asking people where their parents were born. Now, a quarter of the residents of the United States under 18 are immigrants or immigrants’ children. The United Nations estimates that there are 214 million migrants across the globe, an increase of about 37 percent in two decades. Their ranks grew by 41 percent in Europe and 80 percent in North America. 'There’s more mobility at this moment than at any time in world history,' said Gary P. Freeman, a political scientist at the University of Texas. The most famous source countries in Europe — Ireland, Italy, Greece, Spain — are suddenly migrant destinations, with Ireland electing a Nigerian-born man as its first black mayor in 2007."


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Con

  • Migrant rights treaty can conflict with immigration control policies. While it appears logical to confer more "rights" onto migrants under international law, some of these "rights" can run directly contrary to the national interests of a country. For example, the Migrant Workers Convention highlights family reunification as, essentially, a right that signatories must recognize and facilitate. For some countries that are crowded, and that already have significant immigrant populations, facilitating this provision of the treaty could result in significant "reunifications", greater overpopulation, and the worsening of standards of living for other citizens. So, ultimately, what might be "important" to a migrant worker might be harmful to a host country and its population. This is why countries like the UK resist signing the Migrant Workers Convention on the basis that the UK's policies already strike the “right balance between the need for immigration control and the protection of the interests and rights of migrant workers and their families”.[1]
  • Global migration is a problem; solution: reduce migration Victor Davis Hanson. "The Global Immigration Problem." Real Clear Politics. May 31, 2007: "In Germany, Turkish workers - both legal and illegal - are desperate to find either permanent residence or citizenship. 'Londonstan' is slang for a new London of thousands of unassimilated Pakistani nationals. In France, there were riots in 2005 because many children of North African immigrants are unemployed - and unhappy. Albanians flock to Greece to do farm work, and then are regularly deported for doing so illegally. The list could go on. [...] The lasting solution is not the status quo - or even walls, fines, deportation, amnesty or guest-worker programs. Instead, failed societies in Latin America, Africa and much of the Middle East must encourage family planning and get smarter about using their plentiful natural wealth to keep more of their own people home."


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Social welfare: Should migrants receive equal treatment on social welfare?

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Pro

  • Migrants should have equal rights to social welfare as nationals Article 27 of the United Nations Migrant Workers Convention stipulates: "With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfil the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties."[2]


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Con

  • Welfare systems need protecting from "freeriding" migrants. Immigrants make heavy use of social welfare systems, and often overload public education, while frequently not fully pulling their weight in taxes. Increasing social and economic protections and rights for migrants via the Migrant Workers Convention could increase migration and increase the benefits migrants receive from societies. This could be a burden that a state's welfare system is not capable of handling.
  • Full welfare should be reserved for the citizens of a nation. While it may be acceptable for migrants to receive certain social services while working in a country, much of a nation's social services should be made unavailable to them. Social Security and Medicaid, for example, are based on individuals paying into the system for years, and thus having a legitimate claim to draw from the programs in their time of need. Migrant workers fall outside this equation, so should not have the same rights to these benefits as full citizens.


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Family reunification: Should a right to family reunification exist?

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Pro

  • Migrant Rights Convention aims to facilitate family reunification Article 44.2 of the Migrant Workers Convention stipulates: "States Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children."[3]
  • Migrant Workers Convention protects sovereignty on family reunification UNESCO: "The Migrant Workers Convention in Europe: Obstacles to Ratification." 2007: "Article 79 of the treaty provides that '[n]othing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families'; whereas state’s responsibilities in terms of family reunification under Article 44 are limited to taking such measures 'as they deem appropriate to facilitate the reunification of migrant workers with their spouses… as well with their minor dependent unmarried children.' In language as heavily qualified as this, leaving such a wide discretion open to states, it is difficult to see any obligation of any sort, let alone one that could present a serious obstacle to ratification."[4]


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Con

  • Family reunification right is obstacle to migrant rights treaty. States have leveled as an argument against the Migrant Workers Convention, and against other possible international migrant treaties, concerns about a robust right of family reunification to all migrant workers present in migrant-receiving countries. This could offer family members a right to migrate into the state in question, resulting in large increases in population size. And, there is no doubt that the text of the Migrant Workers Convention aims to create a "right" to family reunification. Even if it provides flexibility on how a nation attempts to facilitate re-unification, it still requires that states reunite families in some way. Under this treaty, therefore, any migrant could sue the state for not allowing their family (and perhaps extended family) to immigrate as well. In overpopulated and strained migrant-receiving countries - particularly in Wester Europe - such a proposition is untenable, which is why so many migrant-receiving nations oppose the treaty. And, even if one goes so far as to call the text of the treaty as merely "aspirational" on family reunification, placing no legally binding obligations on states, such "aspirational" language still provides migrant-receiving nations with reason to pause; why should a nation sign an international agreement that contains "aspirations" not shared by the nation?


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Illegal aliens: Is the convention appropriate in its provisions on illegal immigrants?

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Pro

  • Migrant treaty presses mere compliance with national laws. Rory Mungoven, global advocacy director for Human Rights Watch, said in 2003 when the treaty went into effect: "The Migrant Workers Convention is not soft on illegal immigration. All it asks is that undocumented migrants be treated in full compliance with the law, and not subjected to abuse."[5]
  • Migrant workers treaty gives illegals fewer rights/protections. The treaty recognizes that illegal aliens cannot be treated in the same way as legal migrant workers; that such legal workers have more rights and protections. But, it ensures that these illegal aliens are treated humanely, legally, and responsibly by host governments, whether it be in finding them, arresting them, deporting them, or in integrating them into society with some kind of a path to citizenship. National laws already demand such humane action, so the migrant workers treaty hardly does anything new that Western governments should find objectionable in this regard.


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Con

  • Migrant treaty increases burdens of processing illegal aliens. The treaty requires that countries provide full legal procedures for illegal aliens. This could limit the ability of a nation to quickly process and deport illegal aliens. In some countries, large immigration problems make such lengthy judicial processes untenable. And, it is not the fault of the government that a massive and constant flood of illegal immigrants makes judicially and equitably handling each and every one of them impossible. In such instances of a breach of national and sovereign security, full legal processes for NON-citizens is simply not an option, not is signing a treaty that requires this.
  • "Abusive" treatment of illegals is a matter of interpretation. What constitutes "unfair treatment" or "abuse" in a nation's immigration policy is a subject for interpretation under the Migrant Workers Treaty. In the United States, for example, people can be fined or held legally liable for aiding or employing illegal immigrants. Some consider this abusive. And, the United States has created a wall on its southern border. Is this abusive? These are all matters for interpretation based on US national interests, but the concern is that the UN will deem some of these actions or policies "abusive" or "inhumane", and thereby consider them unlawful under the Migrant Workers Convention.


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Economics: Is the migrant rights treaty good for economies?

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Pro

  • Migrant workers treaty counters abusive temporary worker programs. Claire Courteille, of the International Trade Union Confederation, cited in 2010 a typical temporary worker programme agreed by Canada and Guatemala: "Under this agreement the authorities of the host country keep the passports of migrants, who are not allowed to contact or even approach trade unions. Nor may they look for other work ... they have no rights."[6]
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Con

  • Migrants should not have unfettered right to enter labor unions. Labor unions can have an important role in a society, helping check employers. But should they really be open to migrants, who are not usually permanent members of a society? It seems that this privilege could be reserved for citizens alone. Given how disruptive unions can be, do we really want migrants being able to form unions and voice expansive demands that may be contrary to the broader interests of a country and its companies?
  • Migration can cause damaging "brain drain" in countries of origin. Immigration deprives countries of origin of badly needed skills. This is known as "brain drain". This is one of a number of consequences from migration, and may give pause to efforts to increase protections for migrants in such a way that further incentivizes migration.
  • Compliance with migrant rights treaty could be expensive. In order for governments to comply with the Migrant Rights Treaty, they will have to enforce it within their territories, which requires spending money and directing resources toward creating new laws and/or tweaking old laws in order to ensure compliance with the treaty, and in order to ensure employers and institutions are in compliance. Businesses must spend money to ensure they are in compliance as well. While this alone does not disqualify the treaty, it is important to recognize it as a cost and a con.


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Sovereignty: Is Migrant Rights treaty consistent with national sovereignty?

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Pro

  • Migrant Rights Convention allows for sovereign control of migration Article 79 of The United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provides that “[n]othing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families”.[7] Such a broad statement allows for the robust exercise of sovereign decision-making on the criteria for immigration. Migrant-receiving states should rest assured that they will have the flexibility necessary to adjust their policies to deal with their specific migration issues.


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Con

  • International migration treaty limits sovereign migration policy. The United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families would limit the sovereign rights of states to decide upon who can enter their territory and for how long they can remain. While this might not be a problem for countries of origin of migrants, it is certainly a central concern for migrant-receiving nations like the United States, Australia, in Europe, India, and Indonesia. Every state has its own set of issues to deal with as they relate to migration (ie, overpopulation, crime, deficits, national identity, etc.), and many believe they must have the independent flexibility to tailor their immigration policies to meet these issues. That's why an international treaty is seen as a potential liability to states that feel immigration policy must be fully within their own control.
  • Migration policy should be crafted on a state-by-state basis. Every state has different issues and problems related to migration. It is inappropriate, therefore, to call for all nations to sign a treaty that would homogenize immigration policies. These policies should be approached on a state-by-state basis.


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Diplomacy: Is signing the treaty good for diplomacy?

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Pro


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Con

  • Increasing migrant rights can cause international tensions Stanley Pignal. "EU faces threat to migration principle." Financial Times. September 28 2010: "Viviane Reding, the EU’s justice commissioner, is looking to reprimand a clutch of member states, perhaps as many as a dozen, for failing to implement fully the 2004 European law guaranteeing free movement for citizens, but on technical grounds – such as for failing to ensure full legal rights for migrants – rather than for fundamental breaches. In dealing with this dossier, there are worries that Brussels may open a Pandora’s box as it seeks to enhance the working of the rules in favour of migrants. These are turbulent political waters for the European Commission, which as an unelected supranational body has steered clear of immigration issues, among the most sensitive topics in any of its 27 member states. Indeed, officials worry her actions could spark an adverse reaction from some member states, for example by tying intra-EU migration with the more contentious debate regarding new arrivals from outside the EU. 'If the European Commission pushes too hard on this, and rubs member states the wrong way, you could easily see a politicisation of the internal migration debate, which has so far benefited hugely from not being a political debate at all,' said one national diplomat."
  • Expanding migrant rights can damage national identity Maintaining an original ethnic and cultural structure, government, and overall citizenship is the base argument of many opponents of immigration and expanding migrant rights. This ethno-cultural type of thinking is an accepted practice in many countries that are populated by one ethnic group. Is Israel, for example, wrong to term itself a "Jewish state"? Is there something inherently wrong with its efforts to maintain this identity? Probably not, and it certainly constrains how far migrant rights can be expanded with a treaty that forbids discrimination against migrant workers on the basis of race, religion, etc; sometimes such "discrimination" or selectivity can be legitimate.


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Human rights: Does treaty strengthen migrant human rights?

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Con

  • Migrant rights are already protected under human rights law. If a nation violates existing international human rights law against a migrant, perhaps with exploitative working conditions, wrongful imprisonment, seizure of property, discrimination, or violence, existing international law already adequately protects them. There is no need to expand human rights law to create a separate category and separate protections for migrants.
  • International laws protecting migrants will still lack enforcement. Even if the international community decided it wanted to better protect the human rights of migrants, an international treaty will not necessarily advance that cause, as international law has proven to be very difficult to enforce. This will continue to be a problem into the foreseeable future.
  • Human rights are subject to interpretation under Migrant Workers Treaty. Some people consider access to the Internet to be a "human right". Others consider the ability to cross borders freely as a "human right". The definition of human rights is constantly expanding. It is for this reason that accepting a Migrant Workers Treaty that protects a migrant's "human rights" is risky. It could mean that these migrant's rights are interpreted by some in the UN to be broader and more inclusive than a state thinks they should be, and makes it possible that these rights only expand over time.
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