The Price of Rights
The Price of Rights
What Next for Human Rights–Based Approaches to International Labor Migration?
Abstract and Keywords
This chapter examines the implications of the analysis in this book for human rights debates and the rights-based approaches to migration advocated by many international organizations and nongovernmental organizations concerned with protecting and promoting the interests of migrant workers. It highlights the danger of a blind spot in human rights–based approaches to migration, which are often focused on protecting and promoting migrant rights without taking into account the consequences for nation-states' policies for admitting new migrant workers. The trade-off between openness and some specific migrant rights in high-income countries' labor immigration policies means that insisting on equality of rights for migrant workers can come at the price of more restrictive admission policies and, therefore, discourage the further liberalization of international labor migration.
In most high-income countries, the majority of migrant workers are admitted and employed under TMPs that in one way or another restrict migrants’ rights. The rights of migrant workers that are most frequently restricted include the right to free choice of employment, social rights (i.e., equal access to public services and welfare benefits), the right to permanent residence and citizenship, and the right to family reunion. In countries that are not liberal democracies, such as the GCC countries and Singapore, some migrant workers employed under temporary labor immigration programs are also denied some basic civil and political rights.
This book explores the characteristics and drivers of these rights restrictions in practice. The analytic starting point and key theme developed in the book is that in addition to their intrinsic value as human rights, the rights of migrant workers play an important instrumental role in shaping the effects of international labor migration for receiving countries along with migrants and their countries of origin. Different types of restrictions on the rights of migrant workers can be associated with different costs and benefits for all parties. This is why any analysis of the characteristics and determinants of restrictions on migrant rights must look at the relationship between these restrictions and the national interests of migrant-receiving and migrant-sending-countries as well as the interests of migrants themselves.
Because rights shape the effects of labor immigration, migrant rights are in practice a core component of nation-states’ labor immigration policies. The design of any labor immigration policy involves simultaneous policy decisions on how to regulate the number and skills of migrant workers to be admitted as well as the rights to be granted to migrants after admission. Consequently, migrant rights cannot be studied in isolation of admission policies. To understand how, when, and why nation-states restrict the rights of migrant workers—and discuss what rights migrant workers should have—we need to examine how particular rights restrictions are related to policies that regulate the admission (i.e., numbers and selection) of migrant workers.
My empirical analysis of these issues and interrelationships in high-income countries shows that labor immigration programs that target the admission of higher-skilled workers are more open and grant migrants more rights than programs targeting lower-skilled workers. There is also evidence that labor immigration programs can be characterized by trade-offs (p.188) between openness and some migrant rights—that is, programs that are more open to admitting migrant workers are also more restrictive with regard to specific rights. It is crucial to emphasize that the trade-off between openness and rights affects only a few specific rights rather than all rights, and that they most commonly include selected social and economic rights as well as rights relating to residency and family reunion. My empirical analysis suggests that trade-offs between openness and migrant rights can be found in policies that target a range of skills, but are generally not present in labor immigration programs specifically designed for admitting the most highly skilled workers for whom there is intense international competition.
In principle, the empirical findings of this book may be compatible with a range of different explanations and conceptualizations of policymaking processes. My approach conceptualized the design of labor immigration policy in high-income countries as a process of choice under constraints. Nation-states decide how to regulate the number, selection, and rights of migrant workers admitted in order to achieve a common set of potential national policy objectives (economic efficiency; distribution; social cohesion and national identity; and national security and public order) given a common set of potential constraints and institutional factors that limit and mediate the ways in which these policy objectives are translated into actual policies. The constraints are domestic and international legal constraints as well as a limited capacity to control immigration, while institutional factors include the prevailing political system, welfare state, and labor market structures.
If migrant rights are instruments and the result of a policy choice, it is plausible to expect high-income countries to selectively and strategically restrict some of the rights of migrant workers to maximize their net benefits for the receiving country. All rights—for migrants and nonmigrants—create multifaceted costs and benefits that vary across different types of rights, between the short and long run, and—critically –between workers with different skills. For most rights, high-income countries can be expected to perceive equality of rights with citizens as best for the national interest. The equality of labor rights, for example, can play an important role in ensuring that migrant workers are not preferred to domestic workers because they can be employed at a lower cost due to reduced rights. Some other rights, however, can create net costs for the receiving country, at least in the short run. For instance, granting low-skilled migrants in low-paid jobs equal access to the welfare state may create net fiscal costs for the receiving country that may not be offset by other types of benefits that employing low-skilled migrants may create. Where rights create net costs for the receiving country, openness to labor immigration can be expected to critically depend on the extent to which costly rights can be restricted and hence the trade-off between openness and rights. These are not just theoretical hypotheses but instead key considerations that have clearly influenced policy decisions in practice. As my discussion of the drivers of labor immigration policies has shown, the costs that specific (p.189) rights are perceived to create are typically the primary explanation for many of the rights restrictions that we observe in practice.
Migrant workers and their countries of origin are acutely aware of and engaging with the trade-off between admission and rights in practice. Large numbers of migrant workers have migrated to countries where their rights are (sometimes severely) restricted, and few low-income migrant-sending countries are willing to insist on full and equal rights for their nationals working abroad for fear of reduced access to the labor markets of higher-income countries. This is not surprising as international labor migration can generate large human development gains for migrants and create significant benefits for migrants’ countries of origin. The presence of large numbers of migrant workers in countries that severely restrict migrants’ rights does not mean that these countries’ labor immigration policies are morally acceptable. Yet the agency, choices, and interests of migrants and their countries of origin should, in my view, be a crucial part of any normative conversation about the desirability of tolerating restrictions on specific migrant rights in order to facilitate more international labor migration.
In the remainder of this concluding chapter, I return to a discussion of the human rights of migrants. The book’s analysis of the roles and interests of nation-states in restricting migrant rights was in part motivated by the reluctance of most high-income countries to sign international migrant workers conventions by the United Nations and ILO. What are the implications of this book’s conclusions for human rights debates along with the rights-based approaches to migration advocated by many international organizations and NGOs concerned with protecting as well as promoting the interests of migrant workers?
Blind Spots and Unintended Consequences of Human Rights
Many UN agencies and migration NGOs call for more countries to “respect the human rights of migrants” by ratifying and implementing the rights stipulated in the CMW and other international legal instruments. As discussed in chapter 2, the CMW stipulates a wide range of rights for migrant workers including equal access to most economic and social rights. Although fewer than fifty countries have ratified the CMW since it was adopted in 1990, the convention has become a common reference point in arguments for a human rights–based approach to migration, which the OHCHR has recently defined as follows:
The human rights–based approach:
Is based on the international framework of human rights law as provided in the international bill of rights and the core human rights instruments
Focuses on vulnerability, marginalisation and exclusion
Emphasises participation and empowerment
A human rights–based approach emphasises that human rights are interdependent and inalienable, and that there is no hierarchy between different sets of rights.1
As noted earlier, the analysis in this book highlights the danger of a blind spot in this type of human rights–based approach to migration (as I will argue in the next section, not all human rights approaches are inherently characterized by this blind spot). Human rights–based arguments are often focused on protecting and promoting the rights of existing migrants without considering the consequences for the admission of new migrant workers—that is, without considering the interests of the large number of potential future migrants who are still in their countries of origin and seeking to access the labor markets of higher-income countries. The trade-off between openness and specific migrant rights in high-income countries’ labor immigration policies means that insisting on equality of rights for migrant workers can come at the price of more restrictive admission policies and, therefore, discourage the further liberalization of international labor migration, especially for lower-skilled workers whose international movement is currently most restricted, and where more migration could lead to large income and human development gains.
Put differently, from a global justice point of view, more migration and more rights for migrants are both “good things.”2 Yet the trade-off between openness and rights in high-income countries’ labor immigration policies means that for some specific rights and some groups of migrants, it is not possible to have more of both, so a choice needs to be made. Human rights approaches to migration that demand all the rights stipulated in the existing international labor standards run the danger of doing good in one area (i.e., in promoting the rights of existing migrants) while doing harm in another (i.e., by making it more difficult to increase opportunities for workers to migrate and legally work in higher-income countries).
It is of course possible to argue that rights should always trump access—that it can never be morally justified to restrict the rights of migrant workers in order to encourage/facilitate more migration. This is, implicitly or explicitly, the normative view underlying arguments for equality of rights within many human rights–based approaches to migration. It is not a perspective that I share. As mentioned in chapter 7, a strong normative case can be made for the selective and temporary restriction of a few specific rights of migrant workers admitted under TMPs in order to give (p.191) more workers in low-income countries the opportunities to migrate legally and take up employment in higher-income countries. Under my normative approach, the temporary rights restrictions that I would find acceptable in exchange for more open admission policies relate to the right to free choice of employment, equal access to selected social rights, the right to family reunion, and the right to permanent residence and citizenship. In other words, I endorse a pragmatic approach that includes a temporary, limited, and evidence-based trade-off between the two goods of more migration and more rights to promote the interests of both current and potential future migrants.
UN Agencies’ Reluctant Engagement with the Price of Rights
Halfway through writing this book—when I had published a few articles and working papers that began to develop my theoretical approach and arguments—I was invited to speak about my research concerning the rights of migrant workers at an international conference organized by the OHCHR in Geneva.3 The purpose of this conference was to prepare for high-level discussions about the human rights of migrant workers at the annual meeting of the Global Forum on Migration and Development (GFMD) in 2009 in Athens. The GFMD is an “initiative of the United Nations Member States to address the migration and development interconnections in practical and action-oriented ways.”4 The rights of migrant workers were a key theme of the GFMD conference in Athens.
I considered the invitation to speak at the OHCHR with mixed feelings. I was keen to engage the United Nations’ major human rights agency in a dialogue about the idea that some rights for migrant workers can create net costs for receiving countries, at least in the short term, which may lead to a trade-off between openness and rights in labor immigration policy. At the same time, I was aware that this argument might be misinterpreted to imply a rejection of all human rights–based approaches to migration (it does not, as I discuss in the final section below). After some reflection, plus a phone call with an OHCHR official who sounded increasingly alarmed as I explained what I wanted to say in my fifteen minutes, but who in the end did not “dis-invite” me, I accepted the invitation.
A few minutes before the start of the panel I was on, the panel chair, a senior official at the OHCHR, asked me to confirm the title of my presentation. I told him that the title of my talk was “The Costs and Benefits of Migrant Rights.” He raised an eyebrow and made a note. A few minutes later, he introduced me: “We are very pleased to welcome Dr. Martin Ruhs from Oxford University. He will talk about the benefits of migrant (p.192) rights.” I gave my talk as planned, looking at the potential benefits and costs of migrant rights. It turned out to be an interesting session. An OHCHR staffer presented a paper from their agency that explored the benefits of migrant rights for the development of migrant-sending countries (with no mention of any potential costs).5 As I left and was saying good-bye to the two OHCHR officials organizing the conference, I commented, “Well, that was a good session. I think I got away with talking about the costs of rights and the potential trade-off with openness in high-income countries’ admission policies.” They smiled nervously and responded: “Just about, just about.”
I am recalling this anecdote because it reflects a general reluctance of many (but not all) UN agencies and other international and national organizations concerned with migration and human rights to explicitly consider and engage in a debate about the costs and benefits of rights along with the consequent potential for a policy trade-off between some rights and countries’ openness to admitting migrant workers. While some UN and other international organizations simply refuse to talk about the issue, others have dismissed it as a “nonissue” (i.e., as something that is not real outside academic debates), while still others recognize the potential policy trade-off, but without—at least so far—explicitly engaging with it.
For example, the Global Migration Group (2008, 59)—an interagency group bringing together the heads of over fifteen UN agencies plus the International Organization for Migration (IOM, a UN-affiliated organization, but not formally part of the United Nations) and the World Bank to discuss migration—recently published a report on international migration and human rights that made it clear that all TMPs should strictly adhere to all the international human rights instruments:
The proliferation of temporary migration schemes should not lead to the curtailment of the rights of migrant workers in the work place, especially regarding the principles of equality of treatment with national workers and non-discrimination. The view that such programmes necessarily involve a trade-off of migrant numbers with their rights undermines the framework of migrant protection and rights elaborated in international instruments. . . . It is extremely important that those programmes [of temporary and circular migration] are in strict compliance with the relevant international human rights instruments, in particular to ensure non-discrimination with regard to remuneration and other conditions of work.
The ILO—the UN agency responsible for drawing up and overseeing international labor standards—also explicitly rejects the “discourse” of a trade-off between openness and migrant rights. Its 2010 position paper (p.193) on a rights-based approach to migration argues that “the current promotion of temporary migration programmes is often associated with a misplaced discourse of trading off rights in exchange for increased access to job opportunities in destination countries.” At the same time, however, the organization argues that there are acceptable restrictions of the rights of migrant workers under TMPs.
Special efforts should be made to prevent temporary migration schemes from resulting in limitations on equal access to labour and human rights for migrant workers vis-à-vis native workers. This relates in particular to the principles of equality of opportunity and treatment and non-discrimination, including the right to equal pay for equal work, to decent and safe conditions of work, and to the right of association. Of particular concern is the all-too-common practice of employers withholding migrant workers’ passports in complete breach of internationally recognized human rights standards. Some limitations on the enjoyment of rights may be reasonable, at least for a limited period of time, such as the right to family reunification and the immediate enjoyment of social security and social protection benefits. However, there are others that should never be compromised, such as the fundamental labour rights of freedom of association and collective bargaining.6
In 2006, the ILO published a multilateral framework on labor migration. The ILO describes the framework as a “comprehensive collection of principles, guidelines and best practises on labour migration policy, derived from relevant international instruments and a global review of labour migration policies and practices of ILO constituents.”7 It highlights that the framework “takes account of national labour market needs,” and more generally, constitutes a “non-binding framework which clearly recognises the sovereign right of all nations to determine their own migration policies.”8
Although the ILO’s multilateral framework gives no sense of a hierarchy of rights for migrant workers, or a potential trade-off between some rights and migrant worker admission policies, the framework has in practice been used by some other organizations to promote a rights-based approach, but without at the same time calling on nation-states to ratify the CMW or other international legal instruments.
For example, the final report of the Global Commission on International Migration (2005)—a body encouraged by Kofi Annan in 2003, with a mandate to “provide the framework for the formulation of a coherent, comprehensive and global response to the issue of international migration” (ibid., vii)—advocates a liberalization of international labor (p.194) migration through more TMPs.9 It also supports a rights-based approach to migration with reference to the ILO multilateral framework, but the commission report does not explicitly call for ratification of the CMW. It notes that “given the decision of many states not to ratify the 1990 Convention, the Commission considers that there is a particular need for complementary approaches to the issue of migrant rights” (ibid., 57).
This particular wording can be interpreted to suggest an underlying recognition of the potential tension between calling for more migration through TMPs, on the one hand, and ratification of the CMW, on the other.
Ambiguity about the relationship between promoting more migration and better protection of the rights of migrant workers is also a feature of the work and official policy documents of the IOM. Unlike UN agencies, the IOM is primarily an agency that serves the interests of its member states without a specific normative mandate on protecting human rights. Traditionally, the IOM has primarily been a service agency whose work facilitates and promotes migration (the IOM’s tagline is “Migration for the benefit of all”). More recently, the IOM has begun to formally express views on human rights. These views are not particularly specific, yet they make it clear that human rights are considered alongside and in the context of efforts to facilitate and promote migration as well as help countries manage their borders. In its 2009 position paper on the human rights of migrants, the IOM does not explicitly call on states to ratify the CMW or other human rights treaties. It also does not mention the ILO’s multilateral framework. The IOM’s (2009, 5) paper concludes that
a prime objective of the Organisation is to enhance the humane and orderly management of migration and the effective respect for the human rights of migrants in accordance with international law. Traditionally providing migration assistance, IOM is now taking measures and implementing projects to actively promote respect for the human rights of migrants. The Organisation has assumed a more dynamic role in this realm without transforming itself into a supervisory or monitoring agency in terms of the application of international norms. Respect for the human rights of migrants is essential to ensure their dignity and well-being, an objective that is central to the spirit and philosophy of IOM.10
Among the UN agencies, the UNDP has gone the furthest to identify a core set of basic rights for migrant workers that must never be violated. The UNDP’s Human Development Report 2009 dedicated to international migration and human development, concluded that migration can create large benefits for human development. It called on high-income (p.195) countries to open their doors to more migrant workers (especially those with low skills) to maximize the benefits of migration for human development. With regard to the rights of migrant workers, the UNDP (ibid., 101) report did not call for the ratification of the CMW but instead referred to the ILO’s multilateral framework as a “ ’soft law’ type of approach [that] accommodates the inherent differences between states and allows for gradual implementation,” and offered the following recommendations concerning migrant workers’ rights:
Even if there is no appetite to sign up to formal conventions, there is no sound reason for any government to deny such basic migrant rights as the right to:
• Equal remuneration for equal work, decent working conditions and protection of health and safety;
• Organize and bargain collectively;
• Not be subject to arbitrary detention, and be subject to due process in the event of deportation;
• Not be subject to cruel, inhumane or degrading treatment; and
• Return to countries of origin.
These should exist alongside basic human rights of liberty, security of person, freedom of belief and protection against forced labor and trafficking.
The UNDP report explicitly rejects the desirability of a trade-off between more migration and restriction of these basic rights, but remains silent on the desirability of any policy trade-offs that involve selective restrictions of other rights such as equal access to social rights.11 Given its focus on promoting development and recommendation for more migration, it is perhaps not surprising that it is UNDP rather than the OHCHR or ILO that has gone the furthest in distinguishing between basic rights and other rights for migrant workers, and in analyzing potential trade-offs between access to high-income countries and rights after admission.
Clearly, all official policy documents and statements need to be read and interpreted with caution, as they do not necessarily always reflect the more nuanced conversations and analyses that may be happening behind the scenes and/or within specific units of these large international organizations. The statements explored above do not necessarily reflect the unitary views of these organizations as well as all the officials and analysts working for them. Nevertheless, taken as a whole, the speeches, position (p.196) papers, and policy documents on the rights of migrant workers do make it clear that there has, with few exceptions, been a great reluctance among the major UN agencies to explicitly consider and engage with the relationships between migrant rights, national interests, and nation-states’ policies for admitting migrant workers.
One could argue that the reluctance to engage with the trade-off between openness and rights is not surprising, and indeed is “required” of standard-setting organizations with the primary aim of advocating and promoting the better protection of human rights, such as the OHCHR and ILO. If the only goal were to encourage policies that lead to more respect for human rights in the long run, an exclusive focus on rights could be justified on the grounds that arguments about trade-offs arising from interests of nation-states can be made by other organizations that are concerned with international labor migration more broadly, not just rights. In practice, however, the ILO and to a lesser extent the OHCHR are not only concerned with rights but also aspire to influence countries’ policies toward admitting migrant workers “here and now.” For example, the ILO is routinely engaged in technical cooperation projects that provide advice to national governments about how to regulate labor immigration and migrant rights. But if informing debates and policymaking on labor immigration is indeed a major objective for the ILO and other right-based organizations (and I agree that it should be), there is a strong case for the need to more actively engage with the kinds of issues analyzed in this book—that is, the costs that some rights create for receiving countries as well as the consequent policy trade-offs between admitting more migrant workers and extending more rights to them. Such an engagement does not need to reject human rights altogether. Yet it does need to involve a reframing of the human rights–based approach to migration as currently advocated by most UN agencies.
Reframing the Human Rights–Based Approach to Migration
I conclude that there is a strong case for advocating a rights-based approach to international labor migration that is premised on the protection of a universal set of core rights, and that takes the interests of nation-states into account by explicitly tolerating temporary restrictions of a few specific rights that can be shown to create net costs for receiving countries, and that are, as a consequence, part of a policy trade-off between openness and rights. Allowing such rights to be restricted should encourage the further liberalization of international labor migration.
The decision about how to distinguish between core and other rights needs to be based on analysis and discussion of the two questions addressed in this book. Which rights create net costs for the receiving country and therefore are part of a potential policy trade-off with openness to admitting migrant workers? And from a normative point of view, which (p.197) rights must never be restricted regardless of the consequences for nation-states’ admission policies?
In response to the first question (analyzed theoretically and empirically in chapters 3–6), I found that the specific rights that have been implicated in trade-offs in high-income countries’ labor immigration policies are selected social rights, the right to free choice of employment, the right to permanent residence and citizenship, rights relating to family reunion, and in countries that are not liberal democracies, some civil and political rights. My response to the second question (analyzed in chapter 7) is that the core rights that must never be violated should include all civil and political rights (except for the right to vote in national elections), and that restrictions should be temporary and limited to the right to free choice of employment, equal access to means-tested public benefits, the right to family reunion, and the right to permanent residence and citizenship.12 I have looked at a number of supporting policies, such as the transparency of policies and the effective protection of opportunities for migrant workers to exit TMPs, which are required to make these restrictions acceptable from a moral point of view. This means that I advocate a rights-based approach to migration that includes as core rights most of the rights enshrined in UN and ILO conventions.
For the sake of clarity, it is important to underscore that I do not reject human rights. The approach that I advocate can be interpreted as a reframing of the human rights–based approach as currently advocated by most UN agencies. Identifying core rights that must never be violated regardless of the consequences, and having more explicit debate about the desirability of temporary restrictions on other migrant rights can be consistent with human rights. First, at a conceptual level, as Amy Gutmann (2001) and many other human rights scholars have pointed out, there can be multiple foundations of human rights. The approach I advocate puts more emphasis on the importance of individuals’ agency rather than on using human rights to insist on automatic equal treatment between citizens and migrant workers.
Second, it can be argued that the approach I propose could—under some interpretations—be consistent with human rights jurisprudence in practice. International human rights jurisprudence generally distinguishes between rights that are absolute, in the sense that there can be no justification for restricting them. Examples include the right to life, and the right not to be tortured or treated in an inhuman or degrading way. Most human rights are not absolute, which means that they can be limited and restricted under certain conditions. Most nonabsolute rights can be restricted based on the proportionality principle, which requires that the aim of the restriction is legitimate (e.g., to protect the rights of others or wider society), and that the restriction is reasonable and proportionate.13 (p.198) This was recently emphasized, for instance, in a 2011 speech on migration by the director of the Human Rights Council and Special Procedures Division at the OHCHR: “Where differential treatment is contemplated, between citizens and non-citizens or between different groups of non-citizens, this must be undertaken for a legitimate objective, and the course of action taken to achieve this objective must be proportionate and reasonable.”14
Within the human rights framework, the approach I advocate thus can be interpreted as a call for more explicit debate about legitimate objectives, reasonableness, and the proportionality of restricting migrant rights in order to increase nation-states’ openness to admitting migrant workers, and about the implications for the core rights that should be included in a reframed rights-based approach to international labor migration.15
Finally, there is a precedent within the UN system for stressing the fundamental importance of specific rights from a larger list of rights. In 1998, the ILO passed the Declaration on Fundamental Principles and Rights at Work, commonly known as core labor standards.16 The declaration “commits Member States to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions. These categories are: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.”17
The ILO declaration therefore identified a short list of fundamental rights that are given preeminence over other ILO conventions. Its rationale was partly to “reconcile the globalisation of the economy and the defence of workers’ fundamental rights.”18 The core labor standards were adopted in the context of dwindling numbers of ratifications of ILO conventions and a general criticism that the ILO’s labor standards were not effective enough at protecting workers’ rights in a rapidly globalizing economy. According to Jan Martin Witte (2008, 17),
Under the circumstances, business as usual was not a viable option for the ILO. A bold move was needed for the organization to regain its relevance and credibility; new instruments were required to demonstrate that the organization and its stakeholders were serious about addressing the issue of labor standards in the globalized (p.199) economy. The Declaration on Fundamental Principles and Rights at Work, passed in 1998, was part of these efforts to reposition the ILO. Rather than taking the approach to promoting the ILO’s entire body of labor standards, the Declaration focuses on a number of essential conventions, labelled “core labour standards.”
The adoption of the core labor standards naturally generated significant debate. Some critics voiced concerns that the standards would detract from the importance of the wider set of ILO conventions, and that it was a mistake to separate out and concentrate on a small set of core rights.19 Others, though, praised the core labor standards as a critical and “pragmatic” step toward more effective protection of workers’ rights in the global economy.20
This book contributes to an underresearched and underdebated set of issues in international labor migration. As such, my empirical findings and normative arguments cannot and should not settle the positive and normative questions raised. The measurement and analysis of the effects of different type of rights for different groups is in its infancy, and much more research is needed to advance our understanding of the multifaceted costs and benefits of different rights as well as the existence and dynamics of trade-offs between specific rights and admission policies.
Equally crucial, there needs to be much more open debate about which rights restrictions, if any, should be tolerated given the interests, politics, and policy trade-offs made by migrant-receiving countries in practice. A key potential pitfall of many of the existing human rights–based approaches to migration is that they exclude or minimize the space for politics about issues that are fundamentally and inherently conflictual, and therefore require open debate. As Michael Ignatieff (2001a, 20) has contended: “When political demands are turned into rights claims, there is a real risk that the issue at stake will become irreconcilable, since to call a claim a right is to call it non-negotiable, at least in popular parlance.”
The rights-based approach to international labor migration that I propose would be based on Ignatieff’s (2001b, 95) argument that “we need to stop thinking of human rights as trumps and begin thinking of them as a language that creates the basis for deliberation.” Bringing the state and politics back into right-based approaches to international labor migration would open up a space for legitimate and important debates and deliberation about the desirability or otherwise of restricting specific rights, for how long, under what circumstances, and so on. This would enable a reasoned debate between organizations that advocate more migration, (p.200) such as the World Bank and the UNDP, and those primarily concerned with the protection and equality of rights, such as the OHCHR and the ILO. Rather than shying away from these issues (as has sometimes been the case), UN agencies and other international organizations should, in my view, play a leading role in promoting this type of research and debate.
(9) The Global Commission on International Migration (2005, 16) recommended that “states and the private sector should consider the option of introducing carefully designed temporary migration programmes as a means of addressing the economic needs of both countries of origin and destination.”
(11) The UNDP report also contains empirical analysis that, the report argues, provides evidence that there is no trade-off between openness and rights (see also Cummins and Rodriguez 2010). As I have explained in detail elsewhere (see Ruhs 2010b), the UNDP’s analysis is limited in many ways. Most important, it does not analyze the relationship between policy openness to labor immigration and the rights of migrant workers under TMPs (as discussed in this book; Ruhs 2010a; Ruhs and Martin 2008) but rather the relationship between the number of all migrants in high-income countries and selected indicators of integration.
(12) The right to permanent residence and citizenship is not a right enshrined in international legal instruments but rather a right frequently discussed in public debates about migration and the rights of migrant workers.
(13) The application of the proportionality principle in human rights adjudication necessarily raises complex and contested issues, including the “balancing” of things that are hard to balance. For a recent discussion of the challenges and pathologies of proportionality reasoning, see Endicott 2012.
(15) Different human rights experts are likely to disagree about whether restrictions of rights in order to allow more labor immigration can ever be justified based on the proportionality principle. It is, to the best of my knowledge, an untested case. For a recent discussion of the challenges related to applying the proportionality principle, including a number of incommensurabilities and pathologies, see Endicott 2012.
(17) http://www.ilo.org/declaration/thedeclaration/lang--en/index.htm (accessed March 12, 2012).