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PROTECTION “OF” OR “FROM” MIGRANTS? THE

FAILURE OF WESTERN COUNTRIES TO RATIFY

THE UN CONVENTION ON MIGRANT WORKERS'

RIGHTS*

Raffaele Cadin

Professore Associato di Diritto internazionale nell’Università “Sapienza” di Roma

ABSTRACT: The Convention on Migrant Workers’ Rights, adopted by consensus in 1990 by the

General Assembly, has been called the best-kept secret of the United Nations: so far, it has been

ratified by only 47 states, and none of them belongs to Western countries. The article questions the

existence of legal reasons that can explain this indifference comparable to a real boycott and comes to

the conclusion that, on the contrary, the explanation must be sought in extra-juridical grounds that

demonstrate once again the Western countries’ bad faith in the promotion of human rights

PAROLE CHIAVE: Convention on Migrant Workers Rights, United Nations, Human Rights

Admittedly, humans are very intelligent apes. And yet, they were unable to predict the

uprising in North Africa, which – until the fall of Ben Ali in Tunisia – had been considered

entirely unrealistic even by prominent French-speaking Arab intellectuals1. Worse (since it

involves the mere observation/evaluation of events in progress rather than the prediction of

future events) is the low propensity of the human race – or rather, of political leaders – to

learn from past mistakes and failures. In fact, we are now witnessing the quasi-messianic

renewal of policies indiscriminately banning immigration (including “mixed migration”) in an

attempt to stop the so-called “human tsunami” arriving from the southern coast of the

Mediterranean. Those who propose such policies forget that, what probably made the social

* Revised version of a paper entitled “Perchè i Paesi occidentali non ratificano la Convenzione ONU sui diritti

dei lavoratori migranti?” presented at the Conference on “Immigrati: inclusione, cittadinanza e legalità”, held at

the Sapienza University of Rome on April 14th, 2011. 1 To cite one example, on January 9th, 2011, Abdelwahab Meddeb, a Tunisian intellectual residing in Paris, gave

an interview to Corriere della Sera in which he said: “Crisi, rivolte, malcontento, rabbia giovanile per la

disoccupazione? Certo, sono tutti fenomeni che disturbano i regimi algerino e tunisino. Come del resto

preoccupano presidenti, re, dittatori, emiri e governanti a vario titolo nel mondo arabo. Ma non facciamo la cosa

più grande di quanto sia. Non c’è nessun pericolo vero di rivolta interna. Non c’è rivoluzione in vista. Siete voi

giornalisti occidentali che amate rendere più drammatiche le situazioni di quanto non siano in realtà. Bouteflika

resterà al suo posto, così il Presidente tunisino Ben Ali, o l’egiziano Mubarak” (p. 9). Only days later, on January

14th, 2011 Tunisian President Ben Ali fled to Saudi Arabia.

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situation in these countries unsustainable in the first place, what made the complex events

optimistically called the “Arab Spring” inevitable, was the very barrier (or “watery curtain”)

erected at all costs between us and them over the last decade2. In other words, the current

short-sighted attempt to revert to a policy of protection (not “of” but) “from” migrants

through the externalisation and delocalisation of control apparatuses, indicates that awareness

of the fact that the restriction of immigration was the cause, rather than the consequence of the

revolutions in North Africa, has yet to develop3.

In this rather dismal context, the issue I have chosen to examine – the sad fate of the UN

Convention on Migrants' Rights – may seem marginal but is, in fact, indicative of the current

phase in international relations.

The story goes as follows: on December 18th, 1990, at the end of a long preparatory

process which began in the late 1970s, the UN General Assembly adopted, by consensus, the

Convention on the Protection of the Rights of All Migrant Workers and Members of their

Families4. This Convention, soon dubbed “the best-kept secret of the United Nations” (and it

2 See, inter alia, Rastello's interesting study RASTELLO, La frontiera addosso. Così si deportano i diritti umani,

Bari, 2010. 3 We clearly do not deny the profound effect of the combination of factors affecting the senescent, corrupt Arab

and Middle Eastern regimes – contingent factors (the global economic crisis), structural factors (the continuous

demographic increase in North African countries resulting in a growing demand for food, energy and water, and

inevitably, in a demand for greater social equality, see DECLICH, Tunisia, La rivoluzione modello, in Limes, Il

Grande Tsunami, n. 1/2011, pp. 283ff., pp. 286-288) and technological factors (new mass communication

technologies arousing the young Arab populations' hunger for freedom). On the contrary, we maintain that the

European policy of indiscriminately banning migration from North Africa, coupled with support to “moderate”

dictators guaranteeing respect of the ban on the ground, created a dead-end situation, with neither internal

(closed, entrenched political systems offering no hope for change), nor external ways out (emigration, the classic

safety valve). Even in Libya, where the socio-economic situation seemed better, it has been pointed out that

“(l)’elevato tasso di disoccupazione, unitamente alle ondate migratorie provenienti dall’Africa subsahariana, ha

creato negli ultimi anni forti tensioni sociali, materializzatesi in rivolte e attacchi non solo contro gli immigrati

ma anche contro le istituzioni rappresentative del regime” (MEZRAN, Perché il Colonnello si sentiva al sicuro, in

Limes, Il Grande Tsunami, pp. 51ff., p. 53). 4 Resolution 45/158. As noted by BARATTA, La Convenzione sui diritti dei migranti e la normativa italiana

sull’immigrazione, in Studi Emigrazione/Migration Studies, n. 153, 2004, p. 17ff., p. 17: “La Convenzione si è

posta nella prospettiva di considerare la tutela dei lavoratori migrante quale questione riguardante la

salvaguardia dei diritti dell’uomo piuttosto che la regolamentazione di una particolare categoria di rapporti di

lavoro. È probabilmente questo il motivo per cui è stata conclusa in ambito ONU e non nel quadro dell’oil”

(italics in the original). Concerning the Convention, see also CELLAMARE, La Convenzione delle Nazioni Unite

sulla protezione dei diritti di tutti i lavoratori migranti e dei membri della loro famiglia, in Rivista internazionale

dei diritti dell'uomo, 1992, p. 861ff.

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is not easy to keep a secret in ... a glass tower such as the UN Headquarters), entered into force

only thirteen years later, on July 1st, 2003 - three months after the twentieth instrument of

ratification was deposited with the UN Secretary General (as established by art. 87, par. 1 of

said Convention)5.

Despite its far-from-revolutionary legal content, in that it is mainly characterised by the

recognition that even irregular migrant workers, being human, are entitled to fundamental

human rights6, ratification has been proceeding rather slowly, to the point that so far, only 47

states have ratified the Convention. Note that normally, UN conventions on human rights

easily exceed one hundred ratifications (the number of states that actually respect them is

much lower, of course). The record is held by the 1989 UN Convention on the Rights of the

Child, ratified by as many as 193 states.

Nevertheless, beyond the exceedingly small number of ratifications, what is surprising

is the regional distribution of the ratifying countries: eighteen African states, seventeen

American, ten Asian, and only two European states have ratified the Convention (Albania

and Bosnia-Herzegovina). The almost complete absence of European countries stands out,

and especially the fact that no industrialised Western country has ratified the Convention in

question. How is this negative record to be explained?

This fact cannot simply be ascribed to the dialectics between migrants' countries of

origin and destination, seeing that the list of states having ratified the Convention includes

destination and transit countries on important South-South migration routes such as

Argentina, Mexico, Egypt, Syria and Turkey.

Nor can the failure of Western countries to ratify the Convention be explained on the

grounds that the text is “biased” in favour of non-industrialised countries. Indeed, the

5 Not surprisingly, on April 15, 2003 the UN Human Rights Committee adopted a resolution calling upon states

“to consider seriously signing or acceding to the Convention as a matter of priority” (Economic and Social

Council, doc. E/CN.4/2003/L.67). 6 Consequently, under art. 82 of the Convention, in the legal systems of the States Parties, the rights of migrants

are unalienable, and thus cannot be waived nor surrendered by contract. Note also that the Convention's

subjective sphere of application is not limited to (“migrant”) citizens of contracting states based on the logic of

reciprocity (as is the case for certain related accords promoted by the the ILO). Instead, it extends to include

workers migrating from countries that are Non States Parties.

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Convention's legal content has been analysed at length and shown to be balanced7. Moreover,

the decisive contribution made in the 1980's by a group of European countries, including Italy,

Sweden, Norway and others, to the final stages of negotiations regarding the text of the

Convention should not be forgotten.8 Furthermore, were it really a biased instrument

characterised by provisions that reflect only the interests of non-industrialised countries, why

would the General Assembly have adopted it by consensus, that is, in the absence of explicit

objections on the part of UN member states, Western countries included?

The existence of specific legal obstacles to ratification remains to be considered,

deriving, for example, from restrictive immigration laws recently introduced in Italy and in

several other European countries. For this purpose, we would like to point out a number of the

Convention's basic features:

a) while acknowledging a detailed list of fundamental rights enjoyed by

“irregular” migrants, the Convention explicitly denies any intention of restricting the freedom

traditionally afforded individual states in determining their migration policies, including rules

governing the entry of migrant workers into state territory (safeguard clause, art. 79 of the

Convention)9;

b) on the contrary, the Convention requires all contracting parties to oppose

migrant trafficking and to cooperate to this end (art. 68)10;

7 BARATTA, La Convenzione sui diritti dei migrant, op. cit., p. 39, recognises the existence of a number of

differences between the Convention and Italian law pertaining to a few specific points. He points out, however,

that such differences can easily be resolved should Italy decide to join the Convention, through a cautious use of

reservations (unless, of course, a targeted reform of Italian law is conceivable), and concludes: “In definitiva, la

Convenzione ONU non sembra possedere una radicale portata innovativa rispetto al diritto internazionale

esistente e al diritto interno in materia di immigrazione”. 8 For an account of the origins of the Convention and the negotiations that led to its adoption, see BATTISTELLA,

Origini, sviluppo e prospettive della Convenzione internazionale sui diritti dei migranti, in in Studi

Emigrazione/Migration Studies, n. 153, 2004, p. 3ff., esp. pp. 7-9, where, acknowledging the key role played by

European, Mediterranean and Scandinavian (MESCA) countries in drafting the Convention, concludes, “si

potrebbe dire che il testo della Convenzione è fondamentalmente un testo europeo, pur modificato dal lungo

processo di negoziazioni” (p. 7). 9 Art. 79 of the Convention provides that: “Nothing in the present Convention shall affect the right of each State

Party to establish the criteria governing admission of migrant workers and members of their families”. 10 This requirement, applicable to migrants' countries of origin as well as to transit countries, could also permit

the consensual creation of a binding regulatory system against illegal migration involving all States Parties

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c) the rights granted to migrants in this instrument – fundamental rights afforded

to all migrants, including irregulars, as well as additional rights granted only to regular

migrants – are not an innovation on the international scene. Rather, the document paints a

coherent picture of the legal status of migrants based on the 1948 Universal Declaration of

Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights,

different international instruments on human rights and International Labour Organisation

Conventions 97 (1949) and 143 (1975)11;

d) should a country be unable to accept any of the Convention's specific

provisions due to characteristics of its domestic legal system regarding, for example,

procedural safeguards in case of expulsion of a migrant, it can, naturally, formulate a

reservation upon depositing the instrument of ratification or accession (art. 91, whereas art. 88

limits itself to prohibiting reservations aiming to completely exclude the application of any

part of the Convention, or to exclude its application to any particular category of migrants).

This prerogative has, by the way, been amply exercised by states that have ratified the

Convention12;

e) finally, it can hardly be supposed that Western countries are intimidated by the

monitoring system provided for by the Convention, a tool modelled on an analogous device

foreseen in the Covenant on Civil and Political Rights: periodic reports to be submitted to the

Committee on Migrant Workers (convened for the first time in March of 2004), and optional

acceptance (as per art. 76 and 77 of the Convention) of a system of interstate and individual

communications (the latter not yet operational, since to date only three of the ten acceptance

declarations required for the mechanism of individual communications to become effective

have been deposited – Guatemala, Mexico and Uruguay)13.

which would constitute a viable alternative to “commercial” or other kinds of pressure exerted by Western

countries to “convince” illegal migrant workers' countries of origin to cooperate on this delicate matter. 11 Needless to say, Italy is party to all treaty instruments cited in the text. 12 Specifically, a number of States Parties excluded, as per art. 92, par. 2, the jurisdiction of the International

Court of Justice in the resolution of controversies arising from the interpretation and the application of the

instrument in question. 13 The Committee meets annually at the UN Headquarters in Geneva. It comprises 14 independent experts elected

by the States Parties to the Convention, for a term of four years renewable only once. Note also, that in 1999 the

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Ultimately, short of assuming that the Convention was not ratified by Western countries

because it was considered to be “useless” in that “non aveva un impatto diretto sul sistema

migratorio in vigore nel loro Paese”14, – but then, the same could be said of many other

international instruments which have met with considerable “success” – one would have to

conclude that the explanation should be sought in the meta-juridical realm, or rather, in a

combination of utilitarian and ideological considerations. The renewed international

affirmation of the humanity of migrant workers risks threatening the prevailing conception of

these people as mere factors of production – cheap and without rights. Immigrants work in

our houses and businesses, and send their children to study in our schools, but they become

“invisible” when it comes to recognising their rights. Similarly, for industrialised Western

countries it is as though the Convention on Migrant Workers' rights did not exist. Not only

have none of them ratified it; none have even signed it! Western countries like arguing about

matters of principle (such as the death penalty, gay marriages, preventive self-defence, etc.),

but this is about “values” in the Heideggerian, and thus etymological sense. Abandoning the

common “negationist” front is simply not an option15.

A classic example of this, is the recent exchange involving Italy on the occasion of its

Universal Periodic Review before the UN Human Rights Council, an exchange which, among

other things, shows to what extent the failure to ratify the Convention on Migrant Workers'

Rights is perceived by the Southern nations as the most striking evidence of the Western

countries' “bad faith” when it comes to the protection of fundamental rights. Italy rejected –

UN Commission on Human Rights (now UN Human Rights Council) established the position of Special

Rapporteur on the Human Rights of Migrants (in 2011, the Canadian François Crépeau was appointed for a

period of three years), with a mandate covering all UN member states, including states that have not ratified the

Convention. 14 BATTISTELLA, Origini, sviluppo e prospettive della Convenzione, op. cit., p. 12, identifies additional possible

explanations for the continued sluggishness of the Convention's ratification process, such as the persistent

conviction of certain governments that the jurisdiction ratione materiae to promote this Convention should be

attributed to the ILO, and the recurrent concern that the reaffirmation of human rights already recognised in other

UN instruments could result in conflicting interpretations. 15 BATTISTELLA, Origini, sviluppo e prospettive della Convenzione, op. cit., p. 13, rightly observes, that the

Convention “è anche percepita come uno strumento che finisce con l’incoraggiare l’immigrazione. Infatti,

estendere la protezione ai migranti equivale ad accrescere i fattori di attrazione e pertanto la ratifica finisce col

diventare un messaggio verso l’incremento della pressione migratoria”.

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with two quite unconvincing arguments16 – a pressing request submitted by several

emigration countries, to ratify the instrument in question17. The first argument is, frankly,

embarrassing. Italy claims that the Convention “does not draw any distinctions between

regular and irregular migrant workers”. This is simply false, seeing that the instrument

clearly distinguishes between fundamental rights, guaranteed to all migrant workers (regular

as well as irregular) listed in the third part, and rights granted only to regular workers, listed in

the fourth part. The second argument – that the issue of immigration is partly the domain of

the European Union – albeit more solid than the first, could technically justify a partial

acceptance of the request to ratify the Convention but certainly not an outright rejection,

clearly inspired by the meta-juridical considerations noted above18.

I thought it appropriate to conclude this article with a reminder of the episode which

raised awareness, in the international community, of the need for the Convention in question.

In 1972, twenty-eight migrants from Mali died in an accident, sealed in a lorry crossing the

tunnel under Mont Blanc. It was forty years ago, during the Cold War, but there was a sense

of humanity in the air, and faith in social progress to be achieved through legal means. Today,

in the era of neoliberal world order and of the daily tragedies that befall migrants whose

16 “Recommendation No. 2. Not accepted. The Italian legislation already guarantees most of the rights contained

in the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

However Italy is not in a position to ratify this instrument because it does not draw any distinctions between

regular and irregular migrant workers and the signature and ratification could only be planned jointly with the

other European Union partners as many provisions of the Convention fall within the European Union domain”

(Human Rights Council, Report of the Working Group on the Universal Periodic Review, Italy. Addendum.

Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under

review, A/HRC/14/4/Add.1, 31 May, 2010, p. 1). 17 “Conclusions and/or recommendations. 2.To consider, possibly within the framework of a desirable re-

orientation of European policy, ratifying the International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families, even if initially with reservations (Algeria); to consider

ratification of the International Convention (Azerbaijan, Chile, Egypt, Islamic Republic of Iran, Mexico,

Philippines)” (Human Rights Council, Report of the Working Group on the Universal Periodic Review, Italy,

A/HRC/14/4, 18 March 2010, p. 11). 18 In this context, BARATTA, La Convenzione sui diritti dei migranti, op. cit., p. 40, underlines “la probabilità che

la Convenzione ONU costituisca una classica ipotesi di accordo ‘misto’, alla cui adesione dovrebbero quindi

partecipare insieme Comunità e Stati membri. La circostanza che la Convenzione sia aperta alla firma e alla

partecipazione soltanto di entità statuali (art. 86) non costituirebbe comunque un ostacolo insormontabile”. This

conclusion is still valid in light of the changes, in the matter of immigration, introduced in the Treaties

establishing the European Union following the entering into force of the Treaty of Lisbon.

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dreams are drowned in the indifference of the “watery curtain”, this sense of humanity seems

almost completely lost.