UN
Chronicle | Protection of
Migrants’ Rights and State Sovereignty
Posted
September 2013
Article Vol. L No.
3 2013
September 2013
 |
| Migrants arriving in Spain |
Paradoxical as it seems, protecting migrants’ rights may be the
best way to enhance state sovereignty in a globalized world. The protection of
fundamental human rights and freedoms should not depend on where one is in the
world. However, it is the state’s responsibility to uphold human rights through
its laws and enforcement.
Migrants are vulnerable to human rights violations because they
are not citizens of receiving states and, due to their status, often live in
precarious situations. Women migrants have to deal with additional challenges
as they face human rights violations based on their migrant status as well as
based on their sex. Whether migrants enter states “with authorization or they
are undocumented, migrants will generally find their rights diminished in
comparison with the citizens of their country of residence.”1 While
human rights are inalienable and should not be granted on the basis of
citizenship, as part of the notion of state sovereignty, states possess
extensive authority to protect their borders and determine their own laws. For
example, states have the power to determine the admission of non-nationals into
their country, detention of migrants and removal or expulsion of non-nationals.2 However,
although states have the power to manage migration flows into, through and from
their territory, they are obligated by international law to do so in such a way
that upholds the rights of individuals within their territory and under their
jurisdiction.
There is a fear that protecting human rights and placing the
individual at the forefront of migration issues undermines state sovereignty or
that putting migration governance firmly within the existing international
legal framework may, in some way, be detrimental to state sovereignty. It is,
however, important to underline that existing international law does not impose
upon states how to govern their migration flows nor does it dictate how to
formulate migration policies. In fact, the existing international legal
framework actually creates a sustainable basis for having long-term migration
governance with respect for the individual, as well as recognizing the states’
competence to govern access and stay of non-nationals (with the notable
exception of non-refoulement3cases).
It needs to be more widely understood that state sovereignty is
not undermined when states develop migration management laws and practices that
protect the rights of both regular and irregular migrants within their
territory. In fact, the reverse is the case as illustrated in the examples
below.
Migration management laws that protect the human rights of
migrants can effectively work to enhance state sovereignty by protecting
national security and public order. For instance, by developing laws and
practices that protect the human rights of irregular migrants, such as victims
of trafficking and smuggling, states can better address issues of corruption4 and
transnational organized crime5 which
are often associated with trafficking or smuggling in persons. These laws
promote the protection of national security and public order. Furthermore,
instituting anti-human trafficking legislation that requires states to protect
victims of trafficking from exploitation and assist victims to rehabilitate by
providing them with appropriate housing, counselling and medical, psychological
and material assistance, does not challenge state sovereignty, and does not
infringe upon the right of the state to protect its borders and those within
them.6
Migrant workers offer another example of how upholding the rights
and freedoms of both documented and undocumented migrant workers does not
undermine state sovereignty but strengthens states. The Core Human Rights
Conventions—including the Convention for the Protection of the Rights of all
Migrant Workers and Members of their Families—recognizes that all migrant
workers are entitled to legal protection within the international human rights
regime. The Convention accords both documented and undocumented migrants with
civil, social and labour rights.7 Regarding
irregular migrants, the Convention recognizes that workers who are
non-documented or in an irregular situation frequently are employed under less
favourable working conditions than other workers.8
Managing the migration of workers is fundamental to ensure
stability and development of the state, especially in a globalized world where
labour mobility, or the movement of people across state borders for employment,
is a key feature. This is because migrant workers contribute to the economic
and human development of the countries in which they work and where they fill
gaps in the labour market and provide essential skills. In the case of migrant
care and domestic workers—where women are heavily present—their often invisible
and silent work effectively contributes to containing the ‘care crisis’ faced
by many developed countries. In addition, migrant workers contribute to their
home countries through remittances which contribute to development and poverty
reduction.9 However, the ability of migrant workers to be economically
productive and contribute to the development of both their countries of origin
and residence is conditioned by the extent of their integration, as well as by
the living and working conditions in the country of settlement.10 By
upholding the rights of migrant workers, states can manage migration in such a
way that fosters a stable environment for migrants to live and work so that
migration becomes leverage for the development of the state. By effectively
protecting migrants (regardless of status), and enabling them to earn decent
pay and enjoy decent working conditions, their productivity will contribute to
the host country’s economy and to that of the country of origin where a
considerable portion of the earnings are likely to be sent.
The question of protection and of guaranteeing rights of migrant
workers (regular as well as irregular) is not just a migration governance
question. It encompasses labour legislation, labour inspection, health and
general human rights. Traditional practices of managing migration exacerbate
the vulnerability of migrants. Take the selective application of labour laws in
certain sectors, such as agriculture, construction, or domestic service.
Migrant workers run a gauntlet in crossing borders to work in labour intensive
sectors for wages well below legal or industry minimum standards often to be
denied even these by unscrupulous employers who, instead, conspire to arrange
their deportation when they are no longer needed. This is a problem of
exploitation, and yet the victims of these scenarios, the migrants, are
generally more likely to be penalized for their minor role than are employers
who profit from illegal cheap or even free labour. Protecting migrants from
such exploitation and abuse is not only a question of protecting the individual
for the individual’s sake, or of taking the moral high ground. It is an
international legal obligation. Having sectors of the labour market that deny
employers’ labour rights or violate labour codes (at times even criminal codes)
encourages criminal behavior by employers, undermines the rule of law and
creates unfair competition for the national labour force. Developing effective
laws that manage migration in such a way that upholds the rights of migrants
benefits both the migrant and society as a whole. Respect for the international
legal framework thus leads to enhanced respect for the individual as well as
for national legislation and institutions.
The examples above illustrate that state sovereignty is not
undermined when states develop migration management laws and practices that
protect the rights of particular kinds of migrants, such as victims of
trafficking, smuggled migrants and migrant workers. State sovereignty is also
not challenged when states uphold particular human rights of all migrants
within their territories. For example, international human rights instruments
clearly articulate the “right of everyone to the enjoyment of the highest
attainable standard of physical and mental health,”11 and,
in particular, require states to take steps to ensure the healthy development
of the child, treat diseases, and create conditions that would assure that
medical services would be provided to everyone in their territory in the event
of sickness.12
To comply with international human rights law, states must
provide health services to migrants as well as their own nationals. In
practice, states often strain to fully realize the right to health of migrants,
particularly those in irregular situations, by excluding migrants from national
health systems, limiting access to emergency health care or selectively
providing medical assistance to migrants.13 Many
believe that requiring states to provide basic health care to non-nationals and
extending health care to migrants (especially undocumented or irregular
migrants) will place an extraordinary burden on limited state resources and
undermines the sovereign interest of states by ‘dictating’ where to allocate
state resources and requiring states to take positive action to ensure that
non-nationals have access to these resources. However, the benefits of
extending the right to health care to all migrants greatly outweigh the costs
to states.
The World Health Organization (WHO) has found that inclusive
approaches to the right to health care and addressing the health needs of
migrants can “improve their health status, avoids stigma and long-term health
and social costs, protects global public health, facilitates integration and
contributes to social and economic development.”14 Most
migrants are healthy young people who become increasingly vulnerable to ill
health due to the conditions surrounding the migration process.15 Although
this is particularly true for migrants who leave their country of origin
involuntarily and for irregular migrants, WHO lists other risk factors that
contribute to ill health including poverty, discrimination, language, cultural
differences, administrative hurdles and legal status, which affect the health
of all migrants.16
By ensuring migrants’ access to adequate health care, states can
facilitate the integration of migrants into their state and ensure that they
remain healthy contributing members of society. Inadequate access to health
services can exacerbate health conditions and increase risks to public health,
which generates greater health care costs for the state in the future.
Proactive public health policies and legislation that provide access to already
existing health care services to migrants, “particularly in terms of health
promotion and disease prevention can reduce both the future demands for health
care and also subsequent expenditures.”17
Protecting
and respecting the rights of all individuals, including migrant women and men,
most certainly does not mean infringing upon the state’s sovereign right to
determine migration policies. Having a rights based approach does not only
benefit the individuals concerned, but promotes respect for the rule of law for
existing institutions and thus benefits both states and individuals.
