This is the second part to our series of blogposts from our engagements at #CPD51. Read the first part here.
As members of the 51st Commission of Population and Development (CPD) negotiate towards a strong and progressive outcome document for the theme Sustainable cities, human mobility and international migration, an issue that remains a thorn in the flesh is that of ‘sovereignty’. It is safe to say that – within this CPD space and many others – raging disagreements have surfaced before, revolving around the often-conflicting rights of migrants and sovereignty of states. Many countries have used the ‘sovereignty’ argument rather liberally to justify their reluctance to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)[1]. The ICRMW was formulated with the status of migrant workers in mind – as a group who has become the most vulnerable to abuse and exploitation and the urgent need to bring about international protection of their rights.
The universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. 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. The protection of fundamental human rights and freedoms should not depend on where one is in the world.
Contrary to the line of argument by many countries, state sovereignty is not undermined when states develop migration laws and practices that protect the rights of regular and irregular migrants within their territory. Instead, such rights-based migrant management law can effectively strengthen sovereignty by helping to preserve national security and to maintain public order, both of which are considered among the core elements of sovereignty.
It is important to note that by ratifying the ICRMW, a country would not in any way undermine its sovereignty, because the ICRMW, like any other international human rights norms, set up a general standard for the states’ human rights obligations when managing matters related to migrant workers. It remains a sovereign right of each state to enforce and implement the human rights standard under the ICRMW in the given human rights condition of migrant workers in its territory.
Article 79 of the ICRMW recognized the sovereignty rights of states in term of establishing “the criteria governing admission of migrant workers.” However, Article 79 also insisted that the states’ right concerning matters related to legal situation and treatment of migrant workers “shall be subject to the limitations” by the state’s duty to protect rights of migrant workers set forth in the ICRMW. In other words, the states’ sovereignty rights concerning treatment of migrant workers are not unlimited. This duty requires states to implement its sovereignty rights in such a way that respect human rights of all people within its jurisdiction and territory.[2]
Traditional practices of managing migration exacerbate the vulnerability and violate the rights of migrants; this is especially true of their sexual and reproductive rights. In our region, sexual and reproductive rights of women migrant workers are often subject to regulation by both countries of origin and destination that takes away their autonomy and bodily integrity. Once women workers are in the country of employment, labour and immigration policies further curtail their right. They experience restrictions in their freedom of movement, especially when employers confiscate their passports and identity documents.
The politicised nature of migration and the conflicts arising from immigration policies, public health and human rights, present real challenges. The imposition of mandatory HIV and pregnancy testing, for instance, is seen universally as violative of a person’s right to privacy and bodily integrity. However, immigration policies impose this requirement for workers behind the guise of public health. The mandatory testing for various diseases, especially for HIV, AIDS and STls, in most receiving countries in Asia is discriminatory. It reinforces stigmatisation, causes alienation and jeopardises the migrant’s job. Low-skilled migrant workers undergo a dehumanisation process as ‘migrant stock,’ wherein they are disallowed to manifest their sexual and reproductive needs and enjoy their sexual and reproductive rights. Despite repeated calls from health and migrants’ rights organisations, many countries have not acted to concretely address the disharmony and incoherence of such policies.[3] The prohibition of marriage, pregnancy and childbirth takes away the agency of migrant women to make choices on their sexuality.
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. Protecting and respecting the rights of all migrants most certainly does not mean infringing upon the state’s sovereign right to determine migration policies. 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. States need to move away from the narrow understanding of sovereignty that excludes the upholding of human rights. It’s high time for states to stop using the sovereignty argument as an excuse and a shield for human rights unfriendly policies on dealing with migrants.
[1] The United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) is the most comprehensive international treaty in the field of migration and human rights. It is an instrument of international law meant to protect one of the most vulnerable group of people – migrant workers, whether in a regular or irregular situation. Adopted in 1990 by the UN General Assembly, it sets a worldwide standard in terms of migrants’ access to fundamental human rights, whether on the labour market, in the education and health systems or in the courts.
[2] https://unchronicle.un.org/article/protection-migrants-rights-and-state-sovereignty
[3] https://arrow.org.my/wp-content/uploads/2015/04/AFC-Vol.19-No.1-2013_Migrants.pdf
