Challenges of Implementation of the United Nations Convention on Migrant Workers Right - Term Paper Example

 Challenges of Implementation of the United Nations Convention on Migrant Workers’ Right Introduction Migration has intensified recently, raising concerns about whether existing laws and policies give adequate protection to the rights of migrant workers. The United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families attempts to address the abovementioned issue. The basis for analysis of such problems is this Convention. It establishes fundamental rights, guaranteeing greater rights for legal migrant workers and their families and fewer rights for irregular or ‘undocumented’ migrants (Bogusz, 2004). However, the Convention is facing major challenges, particularly with regard to its ratification. This paper tries to examine The Reasons For The Extremely Low Rate Of Ratifications Of The International Convention For The Protection Of Migrant Workers’ Rights. The main reason for the low rate of ratifications and low success of international legal instruments for the protection of migrant workers’ rights is associated with the actual and/or believed implications of extending rights to migrant workers for the national security of nation-states. This paper discusses five major challenges to the implementation of the Convention, namely, political and legal barriers, insufficient resources and weak capacity, human trafficking, irregular migration, and lack of awareness and confusions. Overview The tendency of workers to relocate to various parts of the world looking for employment is not new. However, migration in the period of globalization has substantially heightened thus creating new human rights issues. Such issues mostly relate to access to social services, education, equal pay, non-exploitation, and discrimination in the host country. Another underlying reason for the creation of the Convention is discouraging ‘undocumented’ and illegal migration, which facilitates human trafficking and worsens the predicaments of migrant workers and the host countries (Bayefsky, Fitzpatrick, & Helton, 2006). Still, state involvement in this Convention is extremely low. Most of the UN member states are yet to join the Convention, and progressive regional democracies like South Korea, South Africa, Israel, India, and Brazil have not yet ratified or approved the Convention (Glassner, 1998). The main apprehension of the migrant receiving countries is that the Convention would weaken the states’ sovereign power to control or regulate migration into their territory. Another apprehension relates to the understanding of the Convention, which numerous states think would make them unsuccessful in regulating the entrance of migrant workers and the duration of their stay (Ruhs, 2012). Moreover, major political problems that reveal themselves through anti-migrant opinions have resulted in refusal to ratify this Convention in most of the progressive democracies. Numerous states view the Convention as unnecessary and it provides no further assistance because national policies in the European Union (EU) already provide important securities or guarantees to the migrant workers and their families (Ruhs, 2012). Barriers to the Implementation of the Convention Investigations of the refusal of states to approve the Convention suggest that the major hindrances to ratification are politically based—an assumption that the rights of migrant workers are already protected; worries about further burdening the social service system; and assumptions about the effect on the procedures and policies of states in the area of migration. Indeed, there are five major obstacles to the ratification and implementation of the international convention for the protection of migrant workers’ rights: political and legal barriers, insufficient resources and weak capacity, human trafficking, irregular migration, and lack of awareness and confusions. Legal barriers talk about circumstances wherein national policies would conflict with the requirements of the Convention and would thus have to be amended in case of ratification. In certain instances, legal barriers are many and evident. For instance, Nicola Piper (2013) reports that in some migrant receiving nations in Asia the rights given to migrant workers are anything but harmonious to the provisions of the Convention; hence ratification would mean significant reforms or adjustments in these nations, which makes it improbable. On the contrary, in Western nations with an advanced human rights practice, the discrepancy between the Convention and national policies seems quite negligible. For example, the national law of Belgium is well-matched with the Convention’s requirements. On the other hand, the Convention’s article 31, which stipulates the migrants’ cultural identity, is in conflict with France’s principle of national unity (Cholewinski & Pecoud, 2009, p. 29). Bernard Ryan identifies a number of legal barriers in the United Kingdom, concerning the lawfulness of irregular migrant workers, their right to access social services, and their right to stay after the end of their work contract (Cholewinski & Pecoud, 2009, p. 29). It should be mentioned that the compatibility of national policies with the provisions of the Convention is possibly made possible by its comparative flexibility. In fact, the Convention allows and moderates the obligations of states, either through the use of statements like ‘if states deem appropriate’ or ‘states may…’, or by citing national jurisdiction—‘in accordance with national laws’ (Cholewinski & Pecoud, 2009, p. 19). This grants states the power to decide and lessens the potential conflicts between their legislation and the Convention. It is hence very challenging to give undue importance to legal barriers in wealthy nations; although they are present, some of them arise from overly rigid understanding of the Convention, whilst others may simply be resolved through slight changes (Guchteneire, 2009). In the meantime, the major governmental duties of implementation would require a broad array of state institutions and put a strain to the countries’ resources. Even advanced nations with strong governmental capacities have difficulties fulfilling current needs of their immigration sector, as demonstrated by the increasing setbacks in application processing in the UK and the US, for instance (Taksa & Groutsis, 2010). Several nations, like the US, have argued that the rights included in the Convention are exceeded or matched by current national policies. In these instances, the obligation to make regular reports is viewed as a further strain on resources without added value for migrant workers (Gallagher, 2010). Evaluating the intersecting aspects of migration law, the Convention is a complicated agreement addressing separate areas of states’ obligations—legal processes, education, labour laws, and access to social services, especially health care. For states, ratification thus means coordinated attempts to put into practice the Convention’s provisions in these separate policy sectors (Becker, 2008). Cholewinski (1997) had previously argued that “technical questions alone… may prevent many states from speedily accepting [the ICRMW’s] provisions” (p. 201). Previous studies revealed that this is especially challenging in non-Western countries—some of them have inadequate familiarity or exposure in migration legislation; they do not have qualified legislators to adjust and match the Convention to current legal provisions, assess the potential effect of ratification and develop the groundwork for political actions; and several states do not have a strong political policy for migration, a condition aggravated by the rivalry and tensions that at times describe the relationships between involved governments (Satterthwaite, 2005). Political preferences hence change often, whilst ratification of the Convention demands continuing political dedication. In Europe, some researchers, such as Cholewinski and MacDonald, explain that Norway and Poland do not have adequate experience with the field of immigration policymaking, and hence do not have the institutional foundation and system that the Convention presumes; the governments of these nations would have difficulties dealing with the integration of the Convention’s requirements into their administrative system (Cholewinski & Pecoud, 2009, p. 16). Even in major migrant receiving countries like Germany, political discourses on broad migration legislation are quite new, because immigration was, in the past, viewed as momentary. On the contrary, in France, administrative knowledge on migration policymaking is advanced and cannot be regarded as a huge barrier (Cholewinski & Pecoud, 2009, p. 16). It is stated that South African government deals with migration either as an issue of brain-drain or regulation, hence having poor interest in and insufficient experience with its human rights domain (Cholewinski & Pecoud, 2009, pp. 16-17). The government worries that it would fail to implement the Convention’s requirements—it already endures problems in putting into practice the existing labour policy due to inadequate resources and, since it would be obliged to implement in case of ratification, it aims to prevent a condition wherein its weaknesses would be openly emphasised. Basically speaking, even without content-based oppositions to the (Becker, 2008; Cholewinski & Pecoud, 2009) Convention, its single-minded attribute could encourage hesitancy. Ultimately, economic resources are at times cited as a difficulty. Nicola Piper (2013) reports that sending countries in Asia would have problems financing the expensive procedures arising from their duties stated in the Convention; such financial dilemma is also named in numerous developing nations, particularly when the Convention obliges states to deal with migrant workers in a manner that is too costly for these countries. Nevertheless, the scale of these financial and administrative barriers must be reconsidered—numerous other international conventions have in fact been broadly approved in spite of insufficient resources to implement them (Piper, 2013; n.a., 2009). If a political eagerness to ratify exists, these barriers are barely considered. Another issue is fighting human trafficking, which has developed into a major goal for international organisations. The recent decades have seen growing anxieties over new types of migration typified by exploitation, oppression and the participation of migration experts usually connected to organised crime (Berg, 2007). Particularly, women’s migratory patterns, recruited by organised criminal groups and pushed into illegal activities, like prostitution, have provoked intense political responses and public outcry. Theoretically, trafficked migrants are considered victims instead of criminals and must consequently receive protection. However, such concepts are usually problematic in reality, as the difference between ‘irregular’ or ‘trafficked’ migrants could be questionable (Satterthwaite, 2005; Grugel & Piper, 2011). The Convention openly awards rights to undocumented or irregular migrants, a classification usually overlooked by earlier treaties. This is considered as one of the most questionable and problematic aspects, which has been seen by the critics of the Convention as promoting irregular migration—migrant workers would be encouraged to relocate without permission to countries wherein they believe they will acquire certain protections and rights regardless of their standing (Berg, 2007). It has been argued that the Convention’s focus on the rights of irregular migrants reveals influence of G-77 sending nations in the drafting procedure, which encourage destination countries to oppose ratification (Cholewinski & Pecoud, 2009, p. 22). Such is in fact a controversial matter. The truth is that the Convention does not promote irregular migrants; however, it does demand nations to deal with irregular migration, through discouraging it and stopping the increase in the number of irregular migrants. This could be considered as a duty to either regularise or deport irregular migrants (Bayefsky et al., 2006). It is important to mention that the Convention prohibits reservations that would set aside irregular migrants. This is a huge hindrance to the Convention. The Global Commission on International Migration’s (GCIM) statement emphasised that “a number of countries have stated that they are unwilling to ratify the 1990 Convention because it provides migrants (especially those who have moved in an irregular manner) with rights that are not to be found in other treaties, and because it generally disallows differentiation between migrants who have moved in a regular or irregular manner” (Cholewinski & Pecoud, 2009, p. 23). The Convention’s extension of rights to irregular workers has been a huge barrier to ratification for migrant receiving states. The debate over the rights of irregular migrants is, for instance, shown by Van Krieken (2007) (as cited in Cholewinski & Pecoud, 2009, p. 23); he opposes the rights given to them, which, according to him, negatively affects regular migrants, since the benefit of living and working legally in a country would be weakened by the premise that undocumented workers are also granted rights. He further argues that, if countries are committed and fruitful in their attempts to discourage irregular migration and to appropriately incorporate regular migrants, they must not allow being receivers of irregular migrants and thus would not have to oblige themselves to grant them rights (Cholewinski & Pecoud, 2009, pp. 23-24). In fact, the Convention may seem quite conflicting, because it demands prohibiting irregular migration but also demanding the granting of rights to irregular migrants. Another continuing barrier to ratification is the poor understanding of the Convention. It has been reported that in Germany and South Africa understanding of the Convention is poor (Becker, 2008). In Italy, doubts about ratification weaken awareness of the Convention. The UN itself has at times failed to endorse the Convention. Up until 1996, it was tough to obtain the Convention’s manuscript; and a major publication like the UN Development Programme’s (UNDP) Human Development Report failed to include the Convention in its presentation of the standing of key human rights agendas (Cholewinski & Pecoud, 2009, p. 15). A primary effect of this poor awareness is the formation of misinterpretations of the Convention. Specifically, it is generally assumed that ratification means a loss of domestic control on migration legislation, and that ratification would force governments to award major family reintegration opportunities for migrant workers. These assumptions are openly disproven by article 79, stating that “Nothing 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” (Leckie & Gallagher, 2011, p. 120). The Convention proposes family reintegration, yet in a manner that grants states significant decision-making power. This kind of misinterpretation has negatively affected the Convention’s approval. Although such patterns continue, there are proofs that circumstances are changing. For instance, in France and the UK, there have been major attempts to endorse the Convention, thus properly informing legislators, civil society organisations, and unions about the Convention (Grugel & Piper, 2011). Likewise, in Canada, although common understanding of the Convention is poor among politicians, several political parties have supported it (Guchteneire, 2009). Hence it is assumed that the stronger the participation of the civil society for the Convention, the greater the awareness and the political actions related to it. Theoretical Perspectives Basically, there are three major forces that determine contemporary perceptions and, consequently, acceptance of international legal instruments for the protection of migrant workers’ rights: national security, sovereignty, and market dynamics. Current sentiment about migration is greatly affected by various aspects that can be generally classified as related to national security issues. Migration concerns are usually dealt with as an issue of law and order, which is obvious in the focus on trafficking, irregular migration, or admission policies. Although migration is mostly about employment, it is most frequently supervised by home affairs or interior agencies, and this crime-based perspective of migration is expressed by most of the involved (Sarnoff, 1997). This is strengthened by the increasing apprehensions over terrorist activities that, since the 9/11 attack in the US, have forced governments to create new policies, laws, and procedures to determine individuals possibly affiliated with terrorist groups, who usually are migrants or outsiders. The admission of migrants is still a core aspect of national sovereignty, and governments are determined to keep their power over their migration policy, especially in an environment that views globalising forces weaken their sovereignty in a number of other policy sectors. The premise that the field of migration is an issue of national sovereignty is, for instance, evident in South Africa and Canada (Becker, 2008). Indeed, international migration law respects such sovereign discretion. However, opposite to prevailing thought, the power of states is not uncontrolled or limitless—migrants are safeguarded by different international human rights conventions. The conflict between the rights of migrants and states is more obvious when governments exercise aggressive methods to regulate migration, like deportation, imprisonment of irregular migrants, or denial of entry (Gallagher, 2010). In fact, there are indications that these measures are essentially tough to put into practice in the absolute respect of the rights of migrant workers and that, in actual fact, they really result in human rights abuses. Sovereignty is seriously challenged by irregular migration. In principle, irregular migrants live in a receiving country without its permission; but they possess rights that must be protected. Sovereignty also concerns answerability. Even though governments find out that their sovereignty is not breached by ratification, they might be hesitant to involve themselves globally and to subject their human rights practices with regard to migration to the scrutiny of the entire world (Ruhs, 2012). In certain instances, according to Sarnoff (1997), this is aggravated by the presence of apprehension or even misgivings about the UN, since some governments are hesitant to witness the UN exert effort on a matter like migration. The significance of market dynamics is hard to overemphasize and obvious, for instance, in the assumed economic value of irregular migrants devoid of rights or in the rivalry between national governments in the international labour market. Market dynamics strongly put into question the rights-based framework of the Convention—they result in a ‘vertical’ positioning of migrants based on their economic worth, whilst the Convention favours a ‘horizontal’ allocation of nominal rights to migrants, regardless of their standing and economic value (Cholewinski & Pecoud, 2009, p. 30). The difference between skilled and less-skilled migrant workers demonstrates this: skilled workers are few and are thus sought after by receiving countries, which go against one another to draw the interest of the highly skilled and most talented; this condition unavoidably prefers professional and highly trained migrant workers, who will enjoy high working and living standards (Cholewinski & Pecoud, 2009, p. 30). On the contrary, the availability of less-skilled labourers is practically limitless, and receiving nations will not have to offer them attractive working and living standards to encourage them to work in these countries. Even though provided few legal and economic protections, less-skilled migrant workers are likely to vie with one another in acquiring less favourable working conditions, such as indefinite or irregular employment (Berg, 2007). Market dynamics prefer migrant workers possessing bargaining power, like experts or highly trained professionals, who can demand protection of their rights on the countries they are going to, whilst less-skilled migrant workers are not likely to effectively demand such right. In essence, rights are not rooted in universal principles such as the Convention, but instead from the supply-and-demand system that assigns worth of migrant workers (Satterthwaite, 2005; Cholewinski & Pecoud, 2009). In addition, for receiving countries as well, rights imply costs. The rights of migrant workers to access social services, for instance, make their residence in destination countries costlier. This is a major cause of irregular migration, as irregular migrants offer the most inexpensive source of labour, and states, reluctant to admit them with authorisation, allow them to stay for the benefit of the labour market (Bogusz, 2004; Gallagher, 2010). A rights-based framework strongly opposes these overriding economic motives. Conclusions Even though the rights granted to migrant workers under the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families have raised oppositions and doubts since its formation, some believe that the existing political and economic conditions are contributing to the low ratification rate or poor acceptance of the Convention. In a number of destination countries, opposition to migration has grown. Furthermore, the Convention has ambiguous and ‘soft’ requirements for facilitating state accountability. Even though it demands certain state responsibilities, ratifying states are not obliged to comply with some of the provisions. Nevertheless, the UN Convention on Migrant Workers’ Rights is trying to bridge the gap between universal human rights and national interests. 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