Introduction Introduction Chapter 5 Chapter 5
Chapter 1 Chapter 1 Notes for Indicators Notes
Chapter 2 Chapter 2 Noties for quotations Notes for quotations
Chapter 3 Chapter 3 Notes for boxes Notes for boxes
Chapter 4 Chapter 4 Indicators Indicators
CHAPTER 5 Printer Friendly printer friendly version
Chapter 1 Safeguarding Human Rights,
Embracing Cultural Diversity

Protecting the Human Rights of Migrants

Engendering the Management of Migration

Embracing Diversity, And Easing Cultural Differences

Despite considerable promise, international migration also poses some major dilemmas—whether arising out of security, economic, demographic, patriotic, social, cultural or human rights concerns. Nonetheless, international migration is here to stay: There is no indication that humankind—on the move since its early history—will refrain from seizing the opportunities that an increasingly interconnected world of expanding prospects has to offer. Migration will endure for at least as long as poverty and inequality affect a huge swath of humanity. The real challenge is how best to expand the positive contributions of international migration—especially when it comes to poverty reduction and development—while mitigating the risks for all involved.(1)

At the dawn of the 21st century, the global community has come a long way towards understanding how such tensions can be managed—and that is through international collaboration and the respect and promotion of human rights. One of the major achievements of the 20th century(2) is the development of an international human rights system that champions human dignity and the basic needs to which all human beings are entitled—regardless of their national origins. The birth of this legacy stems from the very founding of the United Nations, which today encompasses a community of 191 nations entrusted with seeking dignified solutions to the challenges of living in a globalized world.

The effective management of international migration requires global, regional and bilateral cooperation. In recent years, inter-governmental dialogue has intensified.(3) Building on the momentum of recent high-level commitments, the year 2006 is a significant one for international migration and global policy-making, which will culminate at the High-Level Dialogue on International Migration and Development. This is where the challenge lies: Will governments, parliamentarians, employers and civil society fulfil the promise of human rights made to the world's nearly 200 million international migrants? The world will be watching.

Protecting the Human Rights of Migrants

At the global level, governments have consistently reaffirmed the human rights of migrants and their families. World leaders at both historic summits—the 2000 UN Millennium Summit and the 2005 World Summit—recognized that the management of international migration will play a significant role in the achievement of the Millennium Development Goals (MDGs).(4) Governments also specifically called attention to the needs and rights of women migrants and refugees in the plans of action adopted at the UN conferences of the 1990s. These included the International Conference on Population and Development (ICPD) and the Beijing Fourth World Conference on Women.

A rights-based and gender-sensitive approach is the minimum standard to which any immigration policy should be held. However, explicitly applying human rights protections to international migrants and addressing the specific rights concerns of women have been slow at the global level.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was adopted in 1990. But it took thirteen years for it to come into force in 2003—after the minimum number of countries ratified it.(5) As of January 2006, only 34 out of 191 countries had ratified the Convention. Not one of the top ten immigrant-receiving countries in the world—who as a group are home to half of all the world's migrants—features in this listing.(6) Concerned with the need to step up rights protections for migrants, partners that include leading international NGOs and UN organizations have launched the "Global Campaign for Ratification of the Convention".(7)

Many internationally recognized human rights are applicable to citizens and non-citizens alike within the territory of a State. Rights to liberty, to freedom from torture and inhumane treatment, to education and health, to equal treatment in employment, to join unions and to enjoy rest days,(8) for example, are human rights that, under international law, every State is obliged to make at least minimal efforts to respect, protect and fulfil—regardless of an individual's legal status. In practice, countries limit some human rights to citizens only, and make distinctions between documented and undocumented migrants.(9) This is within their sovereign rights. International Labour Organization (ILO) conventions also establish guidelines and recommendations on what constitutes decent work, forced labour and minimal work standards, including two devoted to migrants.(10) These instruments are especially relevant for the millions of workers—including migrant workers—whose labour facilitates the high quality of life to which many host nations have become accustomed. These migrants often take on grueling and underpaid work in farms, garbage collection or cleaning that helps to keep households and cities supplied, organized and tidy. While most immigrant workers have been, and continue to be, prepared for a trade-off—low pay and socio-economic challenges in exchange for the opportunity to earn higher wages and live peacefully abroad—sending and receiving countries have not always fulfilled their end of the tacit bargain when it comes to human rights.

By and large, labour laws still do not effectively protect most of the world's working migrant women—even when they have legal status. The problem is compounded by the fact that many migrants lack access to information about their rights or how to claim them. This is aggravated by a dearth of adequate data on which to base effective policy responses and the tendency to underreport human rights violations owing to the underground nature of much migrant labour.(11) One important goal is to regulate the currently unregulated sectors under which many migrant women are employed. This includes strengthening monitoring systems that hold employers to account—something that will go a long way towards preventing and ending abuses which, in their most extreme form, constitute modern day slavery. Encouraging and binding employers (including public agencies and multinational corporations) to laws and codes of conduct can further protect the human rights of migrant workers. Various incipient initiatives are under way that are designed to establish corporate responsibility—including a number launched by the UN and other entities.(12)

Rights to education and to health are especially critical, not only for the migrant individuals and families in question, but in the interests of receiving countries. A child's right to receive an education is fundamental to his or her development as a citizen of the world, regardless of the legal status of child and parent. Health is not only a core right established by the International Covenant on Economic, Social and Cultural Rights—a UN treaty ratified or signed by more than 150 nations(13)—but is also necessary for a productive life. In some receiving countries, the immigrant workforce represents a substantial share of the total labour force, and, consequently, the health status of migrants can have a significant impact on national economic output. Furthering reproductive health and rights is especially necessary to safeguard both the health and empowerment of migrant women. Failure to promote education and health-care access for immigrants and their families also carries implications for their integration. Poor educational and health status feed discrimination against migrants, and contribute to socio-economic marginalization from mainstream society.

Various countries recognize their responsibilities under international law—responsibilities that are often enshrined in their own constitutions—and affirm the basic rights of all persons within their territories, regardless of legal status. In several instances, countries make allowances for all migrants to access health care—although, for undocumented migrants these are often limited to medical emergencies. In September 2005, the Government of Mexico announced it was extending health care to all Mexican migrants and their families that travel from the United States. The "popular insurance" scheme is slated to extend coverage to 1 million people on a range of health issues, including cancer, leukemia, HIV/AIDS, cataracts and kidney-related illnesses.(14) The European Union-funded initiative on Migrant-Friendly Hospitals has been implemented in 12 Member States to assess how best to strengthen the role of hospitals in order to promote culturally sensitive health care for migrants and ethnic minorities.(15)

But progress is still inconsistent when it comes to protecting the rights of migrants, and especially those who are undocumented. Even where laws exist, undocumented migrants face hurdles, risks and fears of being reported and deported, as well as limitations on the entitlements granted. The right to health is a case in point, as governments struggle with rising immigration, budgetary priorities, increased security concerns and public opinion. In the case of the United Kingdom, though prior to 2004 there was no explicit legislation governing the right of undocumented migrants to health care, access was still largely available to them. After that date, revised National Health System regulations explicitly refer to "illegal immigrants", establish procedures for reporting them to the authorities and require migrants to provide proof of legal residence.(16)

While most immigrant workers have been, and continue to be, prepared for a trade-off—low pay and socio-economic challenges in exchange for the opportunity to earn higher wages and live peacefully abroad—sending and receiving countries have not always fulfilled their end of the tacit bargain when it comes to human rights.

Similarly, in 2002, France passed a law requiring undocumented migrants to pay part of their medical treatment. Those unable to prove they had been in the country for more than three months could not seek state medical assistance except in the event of an emergency or for treatment of a life-threatening condition. In response, the International Federation for Human Rights lodged a complaint with the Committee on Social Rights of the Council of Europe. In 2004, the Committee ruled that "legislation or practice that denies entitlement to medical assistance to foreign nationals, within the territory of a State Party, even if they are there illegally, is contrary to the Charter".(17)

In Berlin, the Büro für medizinische Flüchtlingshilfe was established in 1996 as an anti-racist, non-governmental resource providing free and anonymous medical treatment twice a week for undocumented migrants and refugees. There are now offices throughout Germany that are all loosely connected under the "No One Is Illegal" campaign. In addition, some charity and church organizations are extending medical aid to include undocumented migrants. Under the "Protection Against Infection Act" (2000), public health offices offer access to anonymous and free diagnosis and treatment, including for tubercu¬losis and some sexually transmitted infections (STIs). Hospitals, emergency units and general practitioners are also legally obligated to provide medical treatment regardless of health insurance or residency status.(18) However, as in other countries, translating policy into practice is no straightforward task. Undocumented migrants may be unaware of their legal entitlements, and they and their health providers may be unsure of the overall implications of new laws and procedures.

A sustained effort to protect the human rights of migrants is unlikely to take hold until policymakers, and the public at large, recognize that the relationship between immigrants and their host society is mutually beneficial. This also includes the understanding that, in many contexts, immigration is also a necessity—something that a number of governments are increasingly acknowledging. Although migrants play a vital role in the social and economic sphere, their contribution is not always valued. A major—though often unspoken—obstacle to acceptance into the host society is xenophobia, as well as the gender, ethnic, class and other forms of discrimination that only add to the challenges that immigrants face.