Addressing the Plight of Migrant Workers in the United States and Asia: Opportunities and Challenges in Applying Human Rights Standards

Human Rights Dialogue 1.11 (Summer 1998) "Toward a "Social Foreign Policy" with Asia"

June 5, 1998

I want to consider a proposition that came out of our breakout group on foreign workers: that in order to protect international migrant workers in the midst of the tumultuous and erratic markets in which they seek employment and labor, nongovernmental organizations and states should apply international human rights standards. I will point to some of the difficulties and complications in applying human rights to foreign workers. While I do not have prescriptions for resolving these issues, to the extent that we see this as a possible arena for cooperation among American and Asian NGOs, it may be useful to identify the unexpected difficulties that a human rights framework imposes on international migrant workers.

To summarize, the group identified the global economy as the context in which numerous problems confronting migrant laborers and their families are formed and need to be addressed. The major problem we focused on is that foreign worker migration is increasingly treated as a migration of labor, not as a migration of human beings—that people have become commodified as factors of production that are transferred across boundaries by the unmitigated winds of supply and demand in the same way as capital investment and commodities are. This is where economic, social, and cultural rights, as well as political and civil rights, become important: the marketplace is too cruel in some ways to migrant workers, and they need protection of the aspects of their lives outside of the wage contract.

Our discussion identified significant differences between the plight of migrant workers in Asia and in the United States, suggesting that international human rights standards would need to be applied in different ways to these populations. For example, unlike their counterparts in the United States, foreign workers migrating within South and East Asia tend to travel alone. For the most part they see their overseas employment as temporary, lasting only until they return to their homes and fuller lives. And while the movement of workers to and within the United States is mediated primarily by family networks, the travel of Asian workers across borders is often arranged by professional labor contractors and agents, sometimes operating legally and sometimes illegally.

Whether it be single workers immigrating for a short period of time or family members seeking to join them, the global context means that often the interests of states are pitted against the interests of migrants. In times of economic fluctuation—particularly with contractions, such as the sudden collapse of financial institutions in Asia—countries like Malaysia that not long ago welcomed foreign workers try to find ways to send them home. Deportation is damaging to the political, social, cultural, and economic human rights of migrant laborers.

Perhaps in the very long term international institutions and relations among nations can guide market forces so as to promote economic development that will equalize the differences in productivity and living standards that motivate the labor migration. But for the time being, such migration seems to be motivated as much by necessity as by opportunity. Nowhere is this more evident than in the large and swelling flows of undocumented immigrants who are driven to join the international labor force despite their inability to obtain recognition of their right to do so.

In this situation, there need to be rules of fairness so that the vulnerability of workers does not become the basis upon which they are employed, abused, and exploited as employers seek their own advantages in competitive international markets. International labor migration can be viewed as a cotillion between employers and workers. The increasing tempo and instability of the dance causes unwarranted suffering, with the commodified status of foreign workers becoming all too apparent as employers rush to find more compliant partners. Once abandoned, workers are often forced off the floor entirely.

In such a labor market, international human rights might provide standards of conduct under which workers can seek protections; members of our discussion group believe that working out such protections should be adopted as a major goal by nongovernmental organizations and recognized as a major responsibility of governments. Further, respect for human rights can empower workers to play a role in establishing equitable terms of both immigration and employment. Establishing such equity will necessarily involve three sets of actors: the workers and their families, nongovernmental organizations that seek to help them, and governments.

Our discussion group recommended that the U.S. government take more seriously the international human rights framework and that it finally ratify the International Covenant on Economic, Social, and Cultural Rights. But there is also a Covenant on the Rights of All Migrant Workers and Their Families that deserves attention. This particular covenant has been passed by the General Assembly of the United Nations, but is not yet part of international law because it has not been ratified by 20 nations. While some NGOs see this covenant as providing a full range of human rights protections specific to the circumstances of migrant workers and they are advocating for its adoption as a key component of an international protective strategy, I see some potential problems for national governments, for NGOs, and for workers with regard to this particular covenant because it discriminates among workers according to their legal status.

Work on the migrant workers covenant began in 1975 when the Economic and Social Council of the United Nations received a report on the exploitation of labor through illicit and clandestine trafficking. The conditions reported were severe enough to lead the General Assembly in 1979 to appoint a working group that would draft a convention to increase the protections for international migrant workers. The proposed covenant was approved by the General Assembly in 1991, and since then, nine nations have become signatories. Eleven more signatories are needed before it becomes international law.

The advances contained in this law include the following:

  • The law defines who is an international migrant worker and delineates a full range of the various types of workers for whom rights are established. Thus, a migrant worker is a person who will be engaged, is engaged, or has been engaged in remunerative activity in a state of which he or she is not a national. A major advance is that families of migrant workers are included within these definitions of migrant workers, and family members are accorded the same rights that attach to migrant workers. That, perhaps, is an initial step toward recognizing and protecting the familial networks and social lives of migrant workers and in reducing what the breakout group called their “commodification.”
  • It recognizes women as well as men as migrant workers.
  • It establishes equality between migrant workers and nationals in their host countries on many levels of political rights and access to governmental services including health and education.

However, one of the peculiar things in this covenant as an international human rights document is that it distinguishes between two levels of rights: in Section 3 are the “human rights” of workers; and in Section 4 are other rights that are not labeled as human rights, but that attach only to workers who are “regular” in their legal status. As I read it, the covenant is intended to establish a minimum level of rights that attach to all workers—even those who are of undocumented legal status; but it also establishes a higher set of rights for those workers who have migrated with legal approval of the states involved. I find this distinction troubling in a human rights document, for it imbues states with the power to determine which workers deserve greater and lesser levels of human rights protection. If human rights are those that a person possesses by virtue of being human, then as a human rights document this covenant is introducing a precedent that allows states to distinguish between different types of human beings and accord them different entitlements and levels of rights—a discriminatory power that could undermine the notion of human rights as applying to all human beings.

Let me summarize how these two levels of rights are distinguished and the threats that this distinction poses for migrant workers and their families. With regard to work, the covenant provides that all migrant workers, regardless of legal status, have a right to equal pay for equal hours and equal protection from home work. But “regular” workers also have the right of protection from unfair dismissal, the right to unemployment benefits, and access to public employment, just like nationals. With regard to culture, undocumented immigrants have a right to preserve their cultural identity—but their rights stop there. Legal immigrants, on the other hand, have a right to bilingual and bicultural education, rights to vocational guidance, social and health services, and participation in the host nation’s cultural life. These rights are not extended as fully to undocumented workers and their families. With regard to the empowerment of workers, undocumented workers have a right to participate in unions but, in direct contradiction to the Universal Declaration of Human Rights, only regular workers have the additional right to form unions.

These are the most disparate and troubling provisions in the covenant, to which NGOs and states ought to give some thought before promoting its ratification. I am concerned that these differences in levels of protection will lead to the institutionalization of dual labor markets and social levels in which the benefits accorded some workers become dependent upon the relative exploitation of others, undocumented immigration becomes the norm, and illegal migrants are deprived of the full political, social, and cultural lives to which they are entitled as human beings.

Today’s international labor markets accommodate illegal migration and promote iniquitous treatment of such workers, treatment that would not be acceptable for legal immigrants or nationals. Rather than contribute to the “decommodification” of workers by helping to equalize the conditions of labor confronting different classes of workers around the world, this covenant could conceivably legally institutionalize and maintain such inequalities. Rather than expand the rights of all workers, it would rationalize the deprivation of rights endured by many. Under such conditions, undocumented immigration and continued abuses of migrant workers are perpetuated.

I have one last concern regarding the relative status and strength of the nongovernment sectors within Asia and the United States and their different abilities to work autonomously upon such difficult issues as the protection of international workers. In its laws, the United States has a very unusual set of tax exemptions that encourages the public to contribute tax dollars to private philanthropic foundations that support NGOs, and directly to NGOs themselves, provided they do not use those exempted tax dollars to engage in electoral politics or lobbying for specific legislation. The phenomenon of tax-exempt organizations, which greatly strengthens the power of nongovernment groups in the United States, does not exist in most other countries.

This difference creates what might be seen as a priority or opportunity for U.S. government aid to developing as well as developed nations: through its aid programs the United States can support nongovernment agencies in Asia that could play a key role in advancing the protection of workers in cases where state governments do not adequately do so. But too often U.S. government policies and civil sector development initiatives are not in sync with one another, and such opportunities are unrecognized or rejected.

U.S. nongovernmental organizations have an opportunity and often the resources to collaborate with their Asian counterparts, and international human rights law can provide universal standards and goals of protection toward which they can jointly aspire. While it is to be hoped that a sharing of resources between nongovernmental organizations and government agencies would strengthen the contributions that NGOs can make to the protection of migrant workers, care must be given to assure that all classes of migrant workers buffeted from country to country by swirling market forces—including migrants and family members who are legally undocumented by states—receive those protections with the full and equal recognition of their humanity and rights. While I fully endorse a human rights approach to establishing equity within tumultuous global markets, civil society groups need to pay careful and critical attention to the implications of using particular international human rights standards to reach that goal.