Protection “of” or “from” Migrants? The Failure of Western Countries to Ratify the UN Convention on Migrant Workers'

Raffaele Cadin

Professore Associato di Diritto internazionale nell’Università “Sapienza” di Roma

 

Admittedly, humans are very intelligent apes. And yet, they were unable to predict the uprising in North Africa, whichuntil the fall of Ben Ali in Tunisiahad been considered entirely unrealistic even by prominent French-speaking Arab intellectuals[1]. Worse (since it involves the mere observation/evaluation of events in progress rather than the prediction of future events) is the low propensity of the human raceor rather, of political leadersto learn from past mistakes and failures. In fact, we are now witnessing the quasi-messianic renewal of policies indiscriminately banning immigration (includingmixed migration) in an attempt to stop the so-calledhuman tsunamiarriving from the southern coast of the Mediterranean. Those who propose such policies forget that, what probably made the social situation in these countries unsustainable in the first place, what made the complex events optimistically called the Arab Springinevitable, was the very barrier (orwatery curtain) erected at all costs between us and them over the last decade[2]. In other words, the current short-sighted attempt to revert to a policy of protection (notofbut)frommigrants through the externalisation and delocalisation of control apparatuses, indicates that awareness of the fact that the restriction of immigration was the cause, rather than the consequence of the revolutions in North Africa, has yet to develop[3].

In this rather dismal context, the issue I have chosen to examinethe sad fate of the UN Convention on Migrants' Rightsmay seem marginal but is, in fact, indicative of the current phase in international relations.

The story goes as follows: on December 18th, 1990, at the end of a long preparatory process which began in the late 1970s, the un General Assembly adopted, by consensus, the Convention on the Protection of the Rights of All Migrant  Workers and Members of their Families[4]. This Convention, soon dubbedthe best-kept secret of the United Nations(and it is not easy to keep a secret in ... a glass tower such as the un Headquarters), entered into force only thirteen years later, on July 1st, 2003 - three months after the twentieth instrument of ratification was deposited with the un Secretary General (as established by art. 87, par. 1 of said Convention)[5].

Despite its far-from-revolutionary legal content, in that it is mainly characterised by the recognition that even irregular migrant workers, being human, are entitled to fundamental human rights[6],  ratification has been proceeding rather slowly, to the point that so far, only 47 states have ratified the Convention. Note that normally, un conventions on human rights easily exceed one hundred ratifications (the number of states that actually respect them is much lower, of course). The record is held by the 1989 un Convention on the Rights of the Child, ratified by as many as 193 states.

Nevertheless, beyond the exceedingly small number of ratifications, what is surprising is the regional distribution of the ratifying countries: eighteen African states, seventeen American, ten Asian, and  only two European states have ratified the Convention (Albania and Bosnia-Herzegovina). The almost complete absence of European countries stands out, and especially the fact that no industrialised Western country has ratified the Convention in question. How is this negative record to be explained?

This fact cannot simply be ascribed to the dialectics between migrants' countries of origin and destination, seeing that the list of states having ratified the Convention includes destination and transit countries on important South-South migration routes such as Argentina, Mexico, Egypt, Syria and Turkey.

Nor can the failure of Western countries to ratify the Convention be explained on the grounds that the text isbiasedin favour of non-industrialised countries. Indeed, the Convention's legal content has been analysed at length and shown to be balanced[7]. Moreover, the decisive contribution made in the 1980's by a group of European countries, including Italy, Sweden, Norway and others, to the final stages of negotiations regarding the text of the Convention should not be forgotten.[8] Furthermore, were it really a biased instrument characterised by provisions that reflect only the interests of non-industrialised countries, why would the General Assembly have adopted it by consensus, that is, in the absence of explicit objections on the part of un member states, Western countries included?

The existence of specific legal obstacles to ratification remains to be considered, deriving, for example, from restrictive immigration laws recently introduced in Italy and in several other European countries. For this purpose, we would like to point out a number of the Convention's basic features:

a)                 while acknowledging a detailed list of fundamental rights enjoyed by irregularmigrants, the Convention explicitly denies any intention of restricting the freedom traditionally afforded individual states in determining their migration policies, including rules governing the entry of migrant workers into state territory (safeguard clause, art. 79 of the Convention)[9];

b)                 on the contrary, the Convention requires all contracting parties to oppose migrant trafficking and to cooperate to this end (art. 68)[10];

c)the rights granted to migrants in this instrumentfundamental rights afforded to all migrants, including irregulars, as well as additional rights granted only to regular migrantsare not an innovation on the international scene. Rather, the document paints a coherent picture of the legal status of migrants based on the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, different international instruments on human rights and International Labour Organisation Conventions 97 (1949) and 143 (1975)[11];

d)                 should a country be unable to accept any of the Convention's specific provisions due to characteristics of its domestic legal system regarding, for example, procedural safeguards in case of expulsion of a migrant, it can, naturally, formulate a reservation upon depositing the instrument of ratification or accession (art. 91, whereas art. 88 limits itself to prohibiting reservations aiming to completely exclude the application of any part of the Convention, or to exclude its application to any particular category of migrants). This prerogative has, by the way, been amply exercised by states that have ratified the Convention[12];

e)                 finally, it can hardly be supposed that Western countries are intimidated by the monitoring system provided for by the Convention, a tool modelled on an analogous device foreseen in the Covenant on Civil and Political Rights: periodic reports to be submitted to the Committee on Migrant Workers (convened for the first time in March of 2004), and optional acceptance (as per art. 76 and 77 of the Convention) of a system of interstate and individual communications (the latter not yet operational, since to date only three of the ten acceptance declarations required for the mechanism of individual communications to become effective have been depositedGuatemala,  Mexico and Uruguay)[13]. 

Ultimately, short of assuming that the Convention was not ratified by Western countries because it was considered to be uselessin that “non aveva un impatto diretto sul sistema migratorio in vigore nel loro Paese”[14],but then, the same could be said of many other international instruments which have met with considerablesuccess” – one would have to conclude that the explanation should be sought in the meta-juridical realm, or rather, in a combination of utilitarian and ideological considerations. The renewed international affirmation of the humanity of migrant workers risks threatening the prevailing conception of these people as mere factors of production cheap and without rights.  Immigrants work in our houses and businesses, and send their children to study in our schools, but they becomeinvisiblewhen it comes to recognising their rights. Similarly, for industrialised Western countries it is as though the Convention on Migrant Workers' rights did not exist. Not only have none of them ratified it; none have even signed it! Western countries like arguing about matters of principle (such as the death penalty, gay marriages, preventive self-defence, etc.), but this is aboutvaluesin the Heideggerian, and thus etymological sense. Abandoning the commonnegationistfront is simply not an option[15].

A classic example of this, is the recent exchange involving Italy on the occasion of its Universal Periodic Review before the un Human Rights Council, an exchange which, among other things, shows to what extent the failure to ratify the Convention on Migrant Workers' Rights is perceived by the Southern nations as the most striking evidence of the Western countries'bad faithwhen it comes to the protection of fundamental rights. Italy rejectedwith two quite unconvincing arguments[16] – a pressing request submitted by several emigration countries, to ratify the instrument in question[17]. The first argument is, frankly, embarrassing. Italy claims that the Convention does not draw any distinctions between regular and irregular migrant workers”.  This is simply false, seeing that the instrument clearly distinguishes between fundamental rights, guaranteed to all migrant workers (regular as well as irregular) listed in the third part, and rights granted only to regular workers, listed in the fourth part. The second argumentthat the issue of immigration is partly the domain of the European Unionalbeit more solid than the first, could technically justify a partial acceptance of the request to ratify the Convention but certainly not an outright rejection, clearly inspired by the meta-juridical  considerations noted above[18].

I thought it appropriate to conclude this article with a reminder of the episode which raised awareness, in the international community, of the need for the Convention in question. In 1972, twenty-eight migrants from Mali died in an accident, sealed in a lorry crossing the tunnel under Mont Blanc. It was forty years ago, during the Cold War, but there was a sense of humanity in the air, and faith in social progress to be achieved through legal means. Today, in the era of neoliberal world order and of the daily tragedies that befall migrants whose dreams are drowned in the indifference of thewatery curtain, this sense of humanity seems almost completely lost.



* Revised  version of a paper entitled “Perchè i Paesi occidentali non ratificano la Convenzione onu sui diritti dei lavoratori migranti? presented at the Conference on “Immigrati: inclusione, cittadinanza e legalità”, held at the Sapienza University of Rome on April 14th, 2011.

[1] To cite one example, on January 9th, 2011, Abdelwahab Meddeb, a Tunisian intellectual residing in Paris,  gave an interview to Corriere della Sera in which he said: “Crisi, rivolte, malcontento, rabbia giovanile per la disoccupazione? Certo, sono tutti fenomeni che disturbano i regimi algerino e tunisino. Come del resto preoccupano presidenti, re, dittatori, emiri e governanti a vario titolo nel mondo arabo. Ma non facciamo la cosa più grande di quanto sia. Non c’è  nessun pericolo vero di rivolta interna. Non c’è rivoluzione in vista. Siete voi giornalisti occidentali che amate rendere più drammatiche le situazioni di quanto non siano in realtà. Bouteflika resterà al suo posto, così il Presidente tunisino Ben Ali, o l’egiziano Mubarak” (p. 9). Only days later, on January 14th, 2011 Tunisian President Ben Ali fled to Saudi Arabia.   

[2] See, inter alia, Rastello's interesting study Rastello,  La frontiera addosso. Così si deportano i diritti umani, Bari, 2010.

[3] We clearly do not deny the profound effect of the combination of factors affecting the senescent, corrupt Arab and Middle Eastern regimescontingent factors (the global economic crisis), structural factors (the continuous demographic increase in North African countries resulting in a growing demand for food, energy and water, and inevitably, in a demand for greater social equality, see Declich, Tunisia, La rivoluzione modello, in Limes, Il Grande Tsunami, n. 1/2011, pp. 283ff., pp. 286-288) and technological factors (new mass communication technologies arousing the young Arab populations' hunger for freedom). On the contrary, we maintain that the European policy of indiscriminately banning migration from North Africa, coupled with support tomoderatedictators guaranteeing respect of the ban on the ground, created a dead-end situation, with neither internal (closed, entrenched political systems offering no hope for change), nor external ways out (emigration, the classic safety valve). Even in Libya, where the socio-economic situation seemed better, it has been  pointed out that “(l)’elevato tasso di disoccupazione, unitamente alle ondate migratorie provenienti dall’Africa subsahariana, ha creato negli ultimi anni forti tensioni sociali, materializzatesi in rivolte e attacchi non solo contro gli immigrati ma anche contro le istituzioni rappresentative del regime” (Mezran, Perché il Colonnello si sentiva al sicuro, in Limes, Il Grande Tsunami, pp. 51ff., p. 53). 

[4] Resolution 45/158. As noted by Baratta, La Convenzione sui diritti dei migranti e la normativa italiana sull’immigrazione, in Studi Emigrazione/Migration Studies, n. 153, 2004, p. 17ff., p. 17: “La Convenzione si è posta nella prospettiva di considerare la tutela dei lavoratori migrante quale questione riguardante la salvaguardia dei diritti dell’uomo piuttosto che la regolamentazione di una particolare categoria di rapporti di lavoro. È probabilmente questo il motivo per cui è stata conclusa in ambito onu e non nel quadro dell’oil” (italics in the original). Concerning the Convention, see also Cellamare, La Convenzione delle Nazioni Unite sulla protezione dei diritti di tutti i lavoratori migranti e dei membri della loro famiglia, in Rivista internazionale dei diritti dell'uomo, 1992, p. 861ff.

[5]  Not surprisingly, on April 15, 2003 the un Human Rights Committee adopted a resolution calling upon states “to consider seriously signing or acceding to the Convention as a matter of priority” (Economic and Social Council, doc. E/CN.4/2003/L.67).

[6] Consequently, under art. 82 of the Convention, in the legal systems of the States Parties, the rights of migrants are unalienable, and thus cannot be waived nor surrendered by contract. Note also that the Convention's subjective sphere of application is not limited to (migrant) citizens of contracting states based on the logic of reciprocity (as is the case for certain related accords promoted by the the ilo). Instead, it extends to include workers migrating from countries that are  Non States Parties.  

[7] Baratta, La Convenzione sui diritti dei migrant, op. cit., p. 39, recognises the existence of a number of differences between the Convention and Italian law pertaining to a few specific points. He points out, however, that such differences can easily be resolved should Italy decide to join the Convention, through a cautious use of  reservations (unless, of course, a targeted reform of Italian law is conceivable), and concludes: “In definitiva, la Convenzione onu non sembra possedere una radicale portata innovativa rispetto al diritto internazionale esistente e al diritto interno in materia di immigrazione”. 

[8]  For an account of the origins of the Convention and the negotiations that led to its adoption, see Battistella, Origini, sviluppo e prospettive della Convenzione internazionale sui diritti dei migranti, in in Studi Emigrazione/Migration Studies, n. 153, 2004, p. 3ff., esp. pp. 7-9, where, acknowledging the key role played  by European, Mediterranean and Scandinavian (mesca) countries in drafting the Convention, concludes, “si potrebbe dire che il testo della Convenzione è fondamentalmente un testo europeo, pur modificato dal lungo processo di negoziazioni” (p. 7).

[9]  Art. 79 of the Convention provides 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”.

[10] This requirement, applicable to migrants' countries of origin as well as to transit countries, could also permit the consensual creation of a binding regulatory system against  illegal migration involving all States Parties which would constitute a viable alternative tocommercialor other kinds of pressure exerted by Western countries toconvinceillegal migrant workers' countries of origin to cooperate on this delicate matter.  

[11] Needless to say, Italy is party to all treaty instruments cited in the text.

[12] Specifically, a number of States Parties excluded, as per art. 92, par. 2, the jurisdiction of the International Court of Justice in the resolution of controversies arising from the interpretation and the application of the instrument in question.

[13] The Committee meets annually at the un Headquarters in Geneva. It comprises 14 independent experts elected by the States Parties to the Convention, for a term of four years renewable only once. Note also, that in 1999 the un Commission on Human Rights (now un Human Rights Council) established the position of Special Rapporteur on the Human Rights of Migrants (in  2011, the Canadian François Crépeau was appointed for a period of three years), with a  mandate covering all un member states, including states that have not ratified the Convention.  

[14] Battistella, Origini, sviluppo e prospettive della Convenzione, op. cit., p. 12, identifies additional possible explanations for the continued sluggishness of the Convention's ratification process, such as the persistent conviction of certain governments that the jurisdiction ratione materiae  to promote this Convention should be attributed to the ilo, and the recurrent concern that the reaffirmation of human rights already recognised in other un instruments could result in conflicting interpretations.

[15] Battistella, Origini, sviluppo e prospettive della Convenzione, op. cit., p. 13,  rightly observes, that the Convention “è anche percepita come uno strumento che finisce con l’incoraggiare l’immigrazione. Infatti, estendere la protezione ai migranti equivale ad accrescere i fattori di attrazione e pertanto la ratifica finisce col diventare un messaggio verso l’incremento della pressione migratoria”.

[16]Recommendation No. 2. Not accepted. The Italian legislation already guarantees most of the rights contained in the un Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. However Italy is not in a position to ratify this instrument because it does not draw any distinctions between regular and irregular migrant workers and the signature and ratification could only be planned jointly with the other European Union partners as many provisions of the Convention fall within the European Union domain” (Human Rights Council, Report of the Working Group on the Universal Periodic Review, Italy. Addendum. Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, a/hrc/14/4/Add.1, 31 May, 2010, p. 1).

[17] “Conclusions and/or recommendations. 2.To consider, possibly within the framework of a desirable re-orientation of European policy, ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, even if initially with reservations (Algeria); to consider ratification of the International Convention (Azerbaijan, Chile, Egypt, Islamic Republic of Iran, Mexico, Philippines)” (Human Rights Council, Report of the Working Group on the Universal Periodic Review, Italy, a/hrc/14/4, 18 March 2010, p. 11).

[18] In this context, Baratta, La Convenzione sui diritti dei migranti, op. cit., p. 40, underlines “la probabilità che la Convenzione onu costituisca una classica ipotesi di accordo ‘misto’, alla cui adesione dovrebbero quindi partecipare insieme Comunità e Stati membri. La circostanza che la Convenzione sia aperta alla firma e alla partecipazione soltanto di entità statuali (art. 86) non costituirebbe comunque un ostacolo insormontabile”. This conclusion is still valid in light of the changes, in the matter of immigration, introduced in the Treaties establishing the European Union following the entering into force of the Treaty of Lisbon.

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