7.3. MIGRANTS’ RIGHTS AND NATIONAL INTEREST
Manolo I. Abella1
International Labour Office
Observing that globalization and rapid technological change are combining to
increase migration propensities while making many jobs in developed countries more
precarious, this paper argues that the space for building an international regime on
migrants’ rights is narrowing. There is a need to widen that space by placing the ethical
basis of migrants’ rights on enlightened self-interest of nation states. This requires a better
understanding of the consequences of immigration on the host populations and economies,
for which more information and research are essential.
1. The progress made by the international community in defining the rights of workers to
decent work and fair treatment has never followed a straight historical trajectory but has
twisted and turned with political changes and popular perceptions, with major
breakthroughs tending to occur at junctures of favourable economic developments. The
ILO’ s landmark Convention 97 (Migration for Employment Convention) which
defined for the first time the basic right of migrant workers to equal treatment in
employment and to protection during the various stages of recruitment and deployment
came into force in 1949, during the post-war recovery, when many countries were
experiencing severe shortages of labour on account of the losses of their most able
young men and women.
2. The ILO’s Migrant Workers’ Convention (C.143) which for the first time called on
Member States to take concrete measures to suppress clandestine migration, was
adopted in 1975, at the onset of the economic recession triggered by the oil crisis and
which led to the termination of the guest worker programmes adopted during the 1950s
and 1960s by many western industrialized countries. The preamble to the Convention
spoke of the need “…to avoid excessive and uncontrolled or unassisted increase of
migratory movements…” which clearly reflected the worries over immigration
pressures.
3. Our concern in this paper is how to assess the present environment for advancing the
migrants’ rights agenda. Do we now have an environment, a conjuncture of favourable
economic and political developments, which would make it easy to promote the rights
of migrant workers? Given the mounting problems of treatment of migrant workers,
what strategies could be expected to work in pushing for new norms?
4. The space for generating international support for new norms and standards is being
shaped in an important way by three significant developments. One is the increasing
precariousness of traditional forms of employment due to heightened intensity of global
competition in trade. The progressive integration of the world economy with the
dismantling of barriers to the free flows of capital and goods has ushered in a period of
1
Chief of the International Migration Branch, ILO Geneva (abella@ilo.org)
7.3.1
more rapid economic growth globally but greater instability of jobs, especially for those
employed in sectors where the developed regions have lost their comparative
advantage.2 Many more jobs than ever before are now being transferred to low-wage
countries through foreign direct investments or the so-called “de-localization”.3
5. In addition to heightened competition, another factor contributing to the precariousness
of jobs is the increased vulnerability of economies to external shocks. During the last
decade this had already manifested itself in two major financial crises, the one in
Mexico and the other in Southeast Asia. Both crises had reverberated throughout the
world’s capital markets, causing severe downturns in the levels of economic activity in
countries that have heretofore been very resilient like the Republic of Korea or
Argentina.
6. A second important development is accelerating pace of technological change. We are,
by most accounts, only at the threshold of technological changes that are creating a new
economy. It is without precedence in history in the speed with which it is transforming
the world of work. Services, which have long ago displaced manufacturing as the
biggest provider of new jobs in the industrialized regions of the world, are expanding
into areas and directions never foreseen before. The internet and e-commerce are
revolutionizing how, when, and where the goods we daily consume are produced ,
transported and sold. These changes have inevitably led to changing the comparative
advantages of nations in international trade, dislocating some industries, forcing
agglomeration and restructuring of firms, reshaping jobs, and making many traditional
skills obsolete.
7. A third important development is the growing apprehension about migration pressures,
partly on account of the growth of illegal migration (recently estimated at some 30
million persons worldwide), but more so on account of the tendency of rightist political
groups to use xenophobia effectively in building political support. This is most notable
in Europe where the stock of immigrants has been rising at the rate of 2.6 percent
yearly. The last decade did see a rise in the rate of migration most notably in Central
America and West Asia.
8. In my view, these developments are hostile to building a stronger support among states
for the advancement of migrants’ rights. Immigration and economic policies associated
with globalization are, as Tapinos and Delauney have recently noted, paradoxically
aimed at reducing mobility while the market mechanisms they try to re-establish are
just as likely to increase rather than reduce migration flows.4 The frequently reported
incidents of human smuggling have not helped advance the migrants’ rights agenda in
many destination countries, but has instead focused the debate on more effective means
of defending borders. Newspapers have seized on the growing anti-immigrant
2
For a review of the evidence on the impact of globalization on migration, see Stalker, Peter(2000) Workers
without Frontiers, International Labour Office (Geneva) and Lynn Reinner, Boulder.
3
In the United States total economy-wide employment has risen impressively over the past decade but there
have been heavy job losses in some industries.
4
Tapinos, G. and Delauney, D. (2000) Can one really talk of the globalization of migration flows? in
Globalization, Migration and Development, OECD Paris.
7.3.2
sentiments in many countries to pay greater attention to the growth of clandestine
migration and trafficking and the seeming loss by many states of control over their
borders. The dislocation of people due to political conflict in the Balkans has not helped
dispel the worries in western Europe, in particular, that tidal waves of immigrants
would descend upon them with the slightest loosening of controls over their borders.
9. Although labour immigration has historically been associated with the opening of new
land frontiers, the growth of industries, and development, the new perception is that
today’s migration generates undesirable social consequences and thus not compatible
with national interest5. Migrants are increasingly being seen as threats to natives’ job
security, a burden on social services, and as harbingers of crime. These have led to
narrowing the space for securing greater support for migrants’ rights. Arguments for
migrants’ rights on grounds of basic individual human rights are not winning the day
against those who cite the negative consequences of immigration.
10. This is well illustrated in the difficulties faced over the last ten years in getting twenty
ratifications for the 1990 UN Convention on the Rights of Migrant Workers and
Members of their Families. The ethical principles that underpin the basic rights of
migrant workers under the UN Convention are those drawn from the Universal
Declaration of Human Rights, the International Covenants, one on civic and political
rights and the other on economic, social and cultural rights, the Convention and
Protocol on Refugees, and the ILO Conventions (Nos. 97 and 143) and
Recommendations. (Nos. 86 and 151). Since over 90 states are now signatories to the
Covenant on Civil and Political Rights, over 100 to the 1951 Convention on Refugees,
and over 40 have ratified ILO Convention 97, there should be, in principle, no reason
why not more states are ratifying the UN Migrant Workers’ Convention.
11. The reason is probably on account of changes in the perception of the consequences of
immigration on the host countries. During periods when the consequences expected
were favourable (i.e.faster income growth with immigration) state policies on migration
were accommodating of greater rights for the migrants. When perceptions shifted
towards a more negative view of the consequences of immigration there is much greater
resistance to new rights initiatives.
12. The basic rights of migrants elaborated in the 1990 UN Convention are largely based on
a philosophical argument that the rights of individuals precede those of the “good” of
the community or the state. It places on States the moral responsibility to protect
migrant workers because it is a matter of the latter’s basic rights as individuals, and
not because it is in the former’s national interest to do so.
13. The international standards regarding migrant workers that are today already in force
are those of the ILO, specifically Conventions 97 and 143. Convention 97 set forth the
rights of migrants in the areas of remuneration, social security, taxation, access to trade
unions, litigation, transfer of personal belongings and access to longer periods of
See Williamson, J. (1995) “The Evolution of Global Labour Markets Since 1830:Background Evidence and
Hypotheses” Explorations in Economic History 32.
5
7.3.3
residence. Convention 143 established the rights of migrants in an irregular situation
and further specified the right of migrants to equal treatment and opportunity as with
nationals, particularly with respect to geographical and occupational mobility,
vocational training, recognition of qualifications acquired in the country of origin, and
preservation of the culture of origin.
14. There are also the so-called “soft standards” or the ILO Recommendations which have
accompanied these Conventions. One is Recommendation 86 of 1949 which already
established the right to family reunification, continued residence in the host country in
case of loss of employment, and legal guarantees in the event of involuntary return. It
also contains a model agreement between countries reflecting and enumerating the
principles laid out in the main provisions of the standards. Recommendation 100 of
1955 dealt with protection of migrant workers in underdeveloped countries. It
established their rights as employees regarding wages, housing, access to more skilled
jobs, trade union activities, the supply of consumer goods, social security, occupational
health and safety, links with the country of origin, and material, intellectual and moral
welfare.
15. These standards have been developed over the past 50 years and inspired national
legislation, bilateral and multilateral treaties and Conventions including the 1990 UN
Convention.6 However formal ratifications, which proceeded satisfactorily in until the
end of the 1960’s, started to slowdown thereafter. Because of concern over this
declining ratification rate, the ILO Governing Body in 1996 asked the Office to
undertake a “General Survey” of the Migrants Conventions (Nos. 97 and 143) and
Recommendations. Not all Member States responded to the General Survey but it is
already instructive in identifying those principles in these Conventions that Member
States have found difficulty in accepting and have been cited as the reason for nonratification.7
16. In both Conventions the most important principle is that a state should give migrant
workers “treatment no less favourable than that which it applies to its own nationals”
(C.97 Art 6; and Art. 10 of C.143). In these two ILO Conventions it is clear that the
equality of opportunity and treatment applies only to migrant workers and members of
their families lawfully within the territory. It is only once the worker has been admitted
to a country of immigration for purposes of employment that he or she will become
entitled to the protection provided for in the Conventions. The implication is that the
rights of States to admit or refuse to admit a foreigner to its territory is not affected.
17. National legislation may also limit the application of the principle of equal treatment in
some Member States. The Survey showed that limitation is often because national
social security legislation would not allow perfectly equal treatment of non-nationals
(particularly in the matter of pension rights), or because membership in trade unions is
6
See Cholewinski, Ryszard (1997) Migrant Workers in International Human Rights Law Their Protection in
Countries of Employment Clarendon Press Oxford.
7
ILO, Migrant Workers,(1999) Report to the 87th Session of the International Labour Conference, ILO
Geneva.
7.3.4
limited to nationals, or because priority is given to nationals in matters of employment.
It is noteworthy that the principle of equal remuneration appears to be universally
accepted in principle although not always honoured in practice.
18. The ILO Conventions allows restrictions on the equality of treatment principle as
regards free choice of employment. Restrictions may be imposed during a prescribed
period which may not exceed two years (Art.14 of C.143), or permanently with respect
to access of non-nationals to limited categories of employment where this is necessary
in the interest of the State.
19. ILO’s experience with standard setting suggests that building an international regime
on the rights of migrant workers cannot rest solely or even heavily on the acceptance of
individual rights as opposed to communitarian or state rights. A compromise has to be
stricken between them which usually hangs on showing that there are positive
consequences of immigration for the host society.
20. How compatible are some basic rights of migrant workers with the national interest of
host states? In attempting to answer this question one runs against the problem of
defining what is the “national interest”. Admittedly, “national interest” has many
dimensions including national security, preservation of democracy, peace and justice,
preservation and enrichment of culture and social values, health, and material welfare.
The degree of disagreement on immigration policy in many countries reflects the
complexity of defining national interest even within the context of one country, let
alone defining if for a general case.
21. There is considerable ambiguity even in some of these definitions. For example, in
Japan those opposed to more immigration argue that it is a threat to the cultural
homogeneity of the nation, considered by many as the source of their social order and
strength. However, countries like Canada and Australia have achieved consensus on the
value of multiculturalism to their societies and adapted their immigration policies
accordingly.
22. There is less ambiguity, though not necessarily more agreement, where the benefits
expected to ensue from a policy is some economic variable like national income. One
could, for example ask the question: “Would granting such and such right for migrant
workers and members of their families add to or reduce national income?” Since the
typical case is one where there are gainers as well as losers the question is usually
reduced to the question as to whether the former can bribe the latter to accept the
negative consequences of a policy. In practice this often means that the winners from a
more liberal regime of admitting unskilled foreign labour (usually the owners of capital)
are taxed by the Government, which in turn passes the returns on to the losers (usually
the unskilled labour). Unfortunately, research that allow quantification of such benefits
7.3.5
and costs is not yet available in many countries, with a few notable exceptions like the
United States.8
23. In the following we lay out some of the main considerations needed in examining the
economic consequences of granting some of the more important “rights” to migrant
workers such as the right to equal remuneration, free choice of employment, right to
organize and to bargain collectively, right to family reunification, and equal treatment
with respect to social security and health services.

Equal remuneration: Employing migrant workers at wages lower than those of
nationals would undermine existing collective agreements and encourage substitution of
foreign for national workers, hence it is clearly not in the interest of the latter. It is
however another question whether or not the host economy as a whole gains in the
process. In principle, as long as the employment of foreign workers does not displace
nationals, there should be an increase in national income, hence the national interest
will be served. An income redistribution is however bound to result. The employers’
share of the bigger national income would rise if average wages fall for all workers,
national and foreigners alike.

Free choice of employment : An economy-driven labour immigration policy usually
involves restrictions on free choice of employment. The effects of such restrictions on
gains in national income as a result of importing foreign labour is probably negligible.
However, by adding to the segmentation of labour markets, restrictions on free choice
of employment would contribute to downward pressures on wages and could have a
significant impact on income distribution. Moreover, the segmentation of the labour
market has long-term social consequences such as creating negative attitudes towards
certain occupations (for example, the 3-D jobs in Japan) and reducing labour market
flexibility.

Right to join trade unions and to bargain collectively : The argument for this right is
again based on income distribution effects. Excluding migrant workers from union
membership and from collective bargaining will probably lead to a decline in real
wages. It can only weaken their ability to maintain their share of the larger national
income that results from employing migrant labour.

Equal treatment in access to social and health services: Health directly impacts on
productivity and has strong externalities. There would be costs in terms of potential
output foregone if the migrants are not given access to necessary social and health
services. Also, the host community should have an interest in insuring that illnesses are
diagnosed and treated to lessen the chances of spreading diseases. It is interesting to
note that the provision of health care has not been a contentious issue in the
For the most recent survey of the issues in the US see Borjas, G. Heaven’s Door : Immigration Policy and
the American Economy , Princeton University Press, 1999. Borjas found that the economic impact of
immigration is essentially a distributional impact.
8
7.3.6
immigration debate in many countries, unlike public services such as education and
welfare benefits such as unemployment insurance and food stamps.

Family reunification : The national interest in the matter of giving rights to family
reunification is one of the most difficult to determine and quantify. Proponents argue
that permitting family reunification minimizes the social problems that usually attends
family separation such as prostitution, alcoholism, and gambling. Opponents argue on
the other hand that the burden of providing social services for whole families is much
heavier than the cost of allowing such consequences of a restrictive policy.
24. Given contemporary misgivings about the value of more liberal policies on
immigration, it is very important that more facts are established on the consequences of
immigration on the national interest of receiving states. Efforts to advance the
migrants’ rights agenda have floundered probably because these have not been
adequately supported by solid research into the economic and social consequences of
immigration and emigration on the receiving and sending states. This paper was only
meant to call attention to the need to link national interests with the advancement of
migrant workers’ rights if one is to succeed in generating international consensus on the
many sensitive issues raised by migration. It is evident that scholars of migration can
play a major yeoman’s role in this sphere.
7.3.7