Does anyone care about migrant rights? An analysis of why countries enter the convention on the rights of migrant workers and their families

Abstract

Although the Convention on the Rights of Migrant Workers (CRMW) is a 'core' human rights treaty, it is poorly ratified. Previous studies have elucidated the barriers to ratification; in this article we focus on the factors that generate incentives to ratify. We argue that states that ratify this treaty desire to strengthen their relationships with their own emigrants and their citizens at home who advocate for emigrant protections, not to protect the rights of immigrants residing in their own country. The political incentives to strengthen this relationship depend on the costs and benefits that inward migration and outward migration bring to the state. The benefits of emigration are captured by the size of remittance flows, the net immigration position of the country, and by the ratio of unskilled to skilled emigrants, whereas the costs are reflected in the size of the immigrant stock. When the benefits of migration are substantial and the costs of potentially providing rights are small, states will be more likely to ratify this agreement. These determinants are distinctive from the explanations proffered for other human rights treaties. Our statistical analysis is consistent with the theoretical arguments that we make. Only one 'core' United Nations human rights treaty explicitly focuses on non-nationals: the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CRMW). 1 The protections provided by the CRMW affirm the rights found in many other human rights agreements (the right to life, freedom from torture, etc.), but importantly this treaty also specifies rights that are particularly relevant for immigrants, such as access to the judicial system (Article 26), due process in deportation proceedings (Article 22), the right of appeal (Article 22), the prohibition of mass deportations (Article 22), and the right to take part in trade unions (Article 26). The agreement also requires equal treatment of nationals and immigrants regarding employment (Article 49) and social benefits (Article 43). Furthermore, it guarantees documented immigrants' choice of employer and occupation, and free movement within the immigrant-receiving state. While states may protect some of these rights through domestic legislation, immigrant rights are commonly limited in comparison to the rights of nationals, especially the right to work (Morris 2003). Importantly, most rights are provided by the CRMW without regard to legal status in the country; ratifying states are thus required to protect the rights of individuals who are present without authorisation whom the state might actively be seeking to remove. 2 Although the CRMW's ratification rate is low compared to most other human rights treaties, it entered into force in 2003, and as of the end of 2018 fifty-four states have ratified it. Given both the salience of migration and migrant rights and renewed efforts within the United Nations to protect migrant rights, despite more than a century of failure, this treaty deserves

Bargaining Power at the Negotiation Table and Beyond

“…Yet the case studies reveal that the enforcement stage can be heavily discounted at times, which suggests new reasons that states create treaties. One reason that may be plausible is that treaties benefit a domestic constituency (Western et al, 2019). Yet another reason may be that creating a treaty is an end in and of itself and that treaties provide symbolic victories for states that want to change the international order to reflect their views but lack the power to influence more powerful states.…”

“…Elsig and Milewiscz (2017), for instance, find that states that participate in the treaty negotiation process are more likely to sign international agreements; thus, in some ways, the negotiation process binds negotiators to the agreements they help to create. Western et al (2019) find that factors highlighted in the negotiation help to explain ratification.…”

“…Rather, it argues that small states will make rules in international law, but that others will likely not accept those rules. Such agreements, however, can still have valuable political effects for small states (Western et al 2019). Additionally, this account places part of the explanation for widely ratified agreements on small states because when they have demands that are closer to the status quo, they can ensure that the agreement will have their support.…”

“…Yet these treaties are relatively rare, as many treaties are sparsely ratified (von Stein 2018). This selection bias is problematic for understanding ratification more broadly because the reasons these treaties are ratified may not be applicable to less well-ratified treaties (Western et al 2019). One critical reason why states ratify treaties is because 2 Song and Whittington (2004) do note that there are problems with this definition of success as treaties may be created, but do not fundamentally resolve the problem.…”

“…Second, want to change the status quo and do not foresee that others will ratify can have incentives to push an agreement through the treaty creation process. In doing so, they intend to use their work at the international level to bolster their support domestically (Western et al 2019). Thus, it is possible that some actors negotiate without foreseeing their own ratification.…”