Making claims for migrant workers: human rights and citizenship

Abstract

Migrant workers claims for greater protection in a globalized world are typically expressed either in the idiom of international human rights or citizenship. Instead of contrasting these two normative frames, the paper explores the extent to which human rights and citizenship discourses intersect when it comes to claims by migrant workers. An analysis of the international human and labour rights instruments that are specifically designed for migrant workers reveals how neither discourse questions the assumption of territorial state sovereignty. Drawing upon sociological and political approaches to human rights claims, I evaluate the Arendtian-inspired critique of international human rights, which is that they ignore the very basis ‘right to have rights’. In doing so, I discuss the different dimensions of citizenship and conclude that international rights can be used by migrant workers to assert right claims that reinforce a conception of citizenship that, although different from national citizenship, has the potential to address their distinctive social location.

Keywords::

• migrant
• human rights
• citizenship
• employment
• international law

Notes

^1. I am using the term ‘migrant worker’ to refer to workers employed in Canada who hold temporary visas but who do have Canadian citizenship or permanent residency (landed immigrant status).

^2. Low-skilled work refers to work performed by workers whose skills and qualifications are not recognized by the host or receiving country.

^3. In many countries (like Canada), low-skilled workers are not entitled to the same rights as high-skilled workers.

^4. I appreciate that this focus excludes undocumented or irregular migrant workers, that regular status can become irregular and that what may initially be temporary residence may become more permanent.

^5. For a discussion of irregular workers, see Krause (2008) and Frank (2011).

^6. Not all concepts are so neatly categorized; for example, democracy is likely to a momentum concept, whereas liberalism, because of the commitment to property rights, is not (Hoffman 2004, 12).

^7. Benhabib (2007) recognizes that cosmopolitan conceptions of citizenship have more purchase in some regions than in other, contrasting the increasing cosmopolitanism of the EU with the ‘unilateral reassertion of sovereignty of the US’.

^8. There is a limited obligation on states to permit migrants to enter a state's territory if it is necessary for purposes of family reunification. Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (July 28, 19510 (the Refugee Convention)).

^9. The Human Rights Committee, which monitors the International Covenant of Civil and Political Rights, recognizes the rights of States' parties to decide in principle who enters their borders, but requires that this right should not be exercised in a discriminatory manner.

^10. See Article 11 in each convention.

^11. See Article 11(2) (b) in both conventions.

^12. General Assembly Resolution 45/158 of 18 December 1990. The Convention came into effect on 1 July 2003. It took 13 years to receive the 20 ratifications required to bring the Convention into force.

^13. As of 9 June 2012, 49 countries had ratified Convention 97, while only 23 had ratified Convention 143. At the same time, there were only 34 signatories to the ICRMW, of which only two (Mexico and Turkey) were members of the OECD.

^14. There are several different interpretations of how to deal with the Arengt's paradox of the right to have rights. Benhabib (2004) stresses the distinction between a moral and a legal right. Some commentators try to minimize the Aristotelian foundations of Arendt in order to provide a reading of the practice of human rights that is compatible with Rancière. For a discussion of these nuances, see Kesby (2011, 120–121), Schaap (2012) and Ingram (2008). Following Schaap, I keep the contrast between Rancière and Arendt stark.

^15. There is a growing and rich literature on Arendt's right to have rights, and I have been selective in my reference to it. See Kesby (2012), Schaap (2011), Babour (2012), Bohman (2012) and Besson (2012) for references and discussions.

^16. Dissensus is the activity of highlighting the disagreement between the common sense world where equality and rights are denied with the claim, by the excluded, that they are equal and have rights, see Kesby (2012, 125) and Rancière (2004, 305–306).