Janelle Diller
Senior Research Associate
Global Governance Centre, IHEID
janelle.diller@graduateinstitute.ch
Synopsis: Migration vulnerability stems from onerous terms of entry, stay, work and life based on migration status defined by law. While affirming broad state discretion, international law requires states to ensure human rights, which involves legal reform, business due diligence, and labour market coordination.
Keywords: labour market, migration, vulnerability, international law, human rights, due diligence
The chaotic and desperate scenes of migrants and asylum seekers who die in transit on land or at sea – or even in the air – or are collectively pushed back into harm’s way fill the news pages. For many people fleeing poverty or conflict, a globally ordered system for the safe and humane movement of people across borders is far from the reality they encounter. Yet in one step closer to a proposed “safe, orderly and humane” migration, the US Biden Administration recently released a Collaborative Migration Management Strategy that aims to expand legal immigration, address root causes of migration including joblessness, and reunify families separated by the former “zero tolerance” policy applied mainly to migrants from Central America. A critical plank of the new strategy aims to coordinate labour market needs in all countries involved with better recruitment practices and worker protection. According to international experts, similar practices to reduce migration in irregular situations while preserving migrants’ human and labour rights are feasible and effective for all concerned.
Despite its potential to resolve cross-border labour shortages and increase social security among other contributions, the labour market historically remains the “least developed part of globalization”. In contrast to the cross-border movement of goods and capital including along global value chains, states still cling to a predominantly national approach to migration. Control over the movement of people has been called the “last bastion of sovereignty”. By regulating passports, visas, residence and labour qualifications, national migration law affirms the continued importance of the nation-state and the concept of nationality. Prejudiced claims that migrants threaten national security and host cultures breed a climate of hostility to migrants’ rights. Government authorities along with paramilitary and other non-state actors thus continue life-threatening and inhumane practices against migrants with seeming impunity, such as pushbacks along most migration routes as reported recently by the UN Special Rapporteur on Migrants.
Many of the estimated 169 million migrant workers that make up nearly 70 percent of the world’s migrant population of working age (15 years and over) confront vulnerable and precarious working and living situations, particularly lower-skilled migrant workers. They suffer from insufficient access to decent jobs and freedom of association, limited or no social entitlements such as basic health care, and impediments to participation in host societies. People in situations of irregular migration living under the threat of detention and/or deportation are even more likely to face such deprivations but the extent of their plight is difficult to detect due to the clandestine nature of their status. Cautious estimates based largely on indirect methods and proxies reported 58 million migrants in irregular situations globally in 2017, many in regions of developing countries.
Social exclusion, detention, and constant struggle for survival are not automatic and necessary outcomes of cross-border migration for work.
In a forthcoming publication I explain that social exclusion, detention, and constant struggle for survival are not automatic and necessary outcomes of cross-border migration for work. In many countries, the vulnerability of lower-skilled and other migrant workers is a deliberate result of admissions policies and practices designed by government and corporate decision-makers at national levels that adversely discriminate against migrant workers on the grounds of migration status. Decisions to create restrictive conditions of entry, stay and/or work produce social vulnerability and precarious employment when applied. For example, visas that are tied to a single employer or single sector of work grant disproportionate power to the employer or industry which can threaten dismissal with possible deportation if workers claim their employment rights, such as the right to back pay. Other restrictions on migrants’ social entitlements and public services, such as limits on access to health care, unemployment insurance or basic income security, employment injury coverage and social assistance, produce “institutionalized insecurity“.
From this perspective, migration vulnerability is a constructed phenomenon, shaped by national political and economic regulation of labour import markets. Onerous conditions of entry, stay, work and social and economic entitlements are deliberately designed as abusive systems that serves public and private sector interests to maintain control over human beings in the workforce and society. The governance of the restrictive rules by enforcement agencies and even courts further legitimizes and contributes to the precariousness and vulnerability.
The effects of migrant worker vulnerability are felt not only by migrants but also by local workers and communities. The lower wages and working hours of lower-skilled or irregular status migrant workers may undercut established wages and hours of local workers. Hazards in the workplace that migrant workers fear to report may endanger local workers as well. And restricted access to health care for migrant workers can pose health risks to co-workers and even to the general public, including vulnerable local groups who also suffer discrimination in access to health care.
The regulation of labour market demands for internationally recruited workers has shifted over time from state-dominated definitions to sectoral industry priorities. Experts maintain that this shift is part of a broader re-balancing of employment relations toward greater employer control of lower-wage workers in general. The shift has profoundly affected traditional labour law’s aim to protect all workers, irrespective of their migration status. In response, global union federations advocate for workers’ rights across transnational sectors of industry yet confront difficulties in access to all migrant workers, especially those in remote locations, in domestic work, or under constraints like forced labour.
International law and policy have essentially legitimated the discriminatory impact of state regulation of migration status that leads to vulnerability and precarious conditions. As the forthcoming publication details, the tension between territorial sovereignty on the one hand, and human and workers’ rights on the other hand, is built into the international legal system, even the Universal Declaration of Human Rights. The Declaration recognizes, for example, the human right to leave any country, including one’s own, but not the right to enter any other country, thus leaving entry of non-nationals for any reason dependent on each country’s laws. Similarly, everyone has the right to a nationality but not of the country of one’s own choosing. And the right to freedom of movement and residence are recognized only within the limits of the borders of each state. However, under authoritative scholarly principles on extraterritorial obligations of states, such sovereign claims on rights and freedoms do not limit the state’s duty to ensure human rights to all within the scope of its jurisdiction to the extent that the state’s acts or omissions affect those rights.
On close examination, however, state discretion over immigration is broad but not unlimited under international law. Scholarly commentary emphasizes the centuries-long customary law responsibility of states to admit, protect, and respect aliens, despite a more recent and persistent misinterpretation that the state has absolute sovereignty over migration. States also have an obligation to prevent harm or deprivation, regardless of nationality, whether directly or by third party action within their jurisdiction. As part of this obligation, states should identify and eliminate factors in migration policies and operations that contribute to vulnerability and precarious working or living conditions, and ensure that migration law and policy respect the principles of human dignity and the universality of human rights and decent work that underlie the International Bill of Rights and ILO Declaration on Social Justice for a Fair Globalization, respectively. And states should ensure that business actors also exercise due diligence to assess the human rights impact of their contributions to the regulation of labour market supply from abroad.
In a partial step forward, the 2018 Global Compact for Safe, Orderly and Regular Migration commits UN Member States to respect, promote and fulfil the human rights of all migrants regardless of their migration status in accordance with international law, and to reduce the risks and vulnerability that migration entails. Integrating human and labour rights principles into migration law and policy is a first step. At national level, ministries involved in migration, employment and social services can work together with the private sector to promote legal migration for work by documenting local labour market needs, creating jobs in the formal economy, raising public revenues from migrant workforce contributions, and enhancing conditions of life and work for migrant and local workers alike. In the global context of migration, states can best live up to the responsibility that comes with sovereignty by coordinating efforts for orderly, safe and humane migration within and between countries and regions. In the face of increasing challenges, the roll-out of the US strategy for “Collaborative Migration Management” is worth watching now more than ever.
Janelle Diller has served as legal counsel since 1998 for the International Labour Organization where she was appointed Deputy Legal Adviser in 2008. She has contributed to the development of international labour standards, soft law principles on business responsibility, and multi-stakeholder initiatives. She was closely involved in the Rana Plaza Arrangement to compensate several thousand worker victims of a factory collapse in Bangladesh. Her expertise includes international organizations, human and labour rights, international law, and governance related to transnational business.
Janelle M. Diller’s latest publication is ‘Protecting the Vulnerable: Migration, Work and Human Rights Due Diligence’ in the Handbook on Globalization and Labour Standards (Kimberly Ann Elliott, ed., Elgar).
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