Migration has always been a hotly contested global topic and it will remain one, as long as there are inequalities in the world which render some areas more dangerous and impoverished than others. Although international migration policies have become increasingly liberal, national migration policies appear to be getting stricter and anti-foreigner sentiment seems to be on the rise. Why is this the case? The UN’s International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW, adopted in 1990) is the most significant international instrument that specifically addresses the rights of migrant workers, and it is very clear about the rights that migrants should enjoy in host countries. Under the CMW, all legally admitted migrants should be afforded the same rights and protections as national workers.
The CMW also grants significant rights to undocumented migrants in host countries. However, none of the major migrant-receiving countries have signed the CMW. Consequently, there has been no systematic approach by all states to the protection of migrant rights, and national initiatives have been implemented in an ad hoc manner. At the time of writing, only 51 countries have ratified the CMW, with 16 countries merely signing the treaty. A whopping 131 countries, including South Africa, have taken no action with regards to the CMW (UNHCR, 2017).
It has been 28 years since the treaty was established, and the response by nation-states has disappointed supporters of the CMW. Not only that, but globally nation-states have generally been moving towards more restrictive immigration policies despite the more liberal international policies. What impact does this have on migrants at the ground level? It means that migrants will have fewer rights to access in their host countries, and also that migrants will have trouble claiming the rights that they do have access to.
Why have the most powerful governments refused to ratify the CMW?
The CMW is perceived to take control away from the state, in that legally admitted migrants are afforded the same rights and protections as national workers. The CMW also makes the unauthorised confiscation of passports and identity documents a criminal offense. This effectively limits the ability of states to deport and police migrants and borders, which threatens states’ national sovereignty. There is also lack of understanding about the CMW, with many nation-states assuming that it will significantly limit their ability to regulate the admission of migrants. Add to this that ratification is a long and arduous process, necessitating significant changes in domestic laws and legislation, and one can understand why some nations are reluctant to ratify the convention. There is also the notion that granting more rights to irregular migrants will only attract more migrants.
The CMW is perceived to give too many rights to undocumented migrants, granting many of the same rights to temporary migrants and undocumented workers that citizens have access to. Therefore, the CMW threatens the distinction between citizens and migrants and their relation to the state, giving governments less control over their populations. The overall picture that one gets from nations adopting stricter immigration policies, is that national interests are always at the forefront of the politics of ratifying the CMW rather than concerns about the protection of migrants’ human rights. It is also important to note that Western states still set the agenda and control what is popular/best practice.
Therefore, regardless of how liberal international law is towards migrants, as long as the major high-income, migrant-receiving countries maintain restrictive immigration policies, the rest of the world is likely to follow. This is likely another major reason why there are so few migrant-receiving countries who have ratified the CMW. The CMW is supposed to serve as a tool to encourage those states lacking national standards to bring their legislation in line with recognised international standards. Irrespective of this, the CMW is still severely under-ratified because it is perceived as a threat to the sovereignty of nation-states.
Why has the refocusing on sovereignty led to an increase in anti-foreigner sentiment?
Immigration policy has become linked to national and regional security in terms of combatting human and drug trafficking, as well as terrorism. The securitisation of immigration has, in fact, led to increased national efforts to reinforce and redefine the borders of the sovereign nation-state. After 9/11, the focus on security became an excuse to increase national border security and to enforce more restrictive immigration policies. Concerns about national security also began to be linked to ideas of national culture, and how immigration was creating changes to the national identity. The presence of different ethnic groups in communities that have long been racially or tribally homogenous, has also contributed to the perception that the national identity is being challenged. Consequently, national culture and identity is also seen as needing to be protected from migrants.
In the case of South Africa, building a new national identity was crucial to developing unity in the post-Apartheid era. So much so, that it created a common identity; while simultaneously creating a boundary between South African citizens (us) and anyone else living in the country (them). Consequently, if states were to provide ‘them’ with rights equivalent to ‘us’, especially when those rights imply a financial obligation on the part of the receiving state, it may lead to citizens wanting to limit the number of migrants who should be admitted as well as to public backlash against governments and migrants. This leads to the notion that immigrants have become a financial and cultural threat. Even when there is little evidence for this, often the general public perceives migrants to be costly to taxpayers or as competitors for limited jobs and resources.
In many countries, migration has also consistently been framed in the context of combating crime, where migrants are portrayed as criminals and ‘illegal’, furthering the process of ‘othering’ of migrants. Is it any wonder then that there is such strong xenophobic sentiment in countries where there is a strong national identity? Where ideas of ‘I belong to this great nation’ are inevitably followed by ideas of ‘You don’t belong here’, leading to anger towards perceived outsiders and foreigners? Maintaining the ideas of national identity, culture and security thus only leads to stricter immigration policies, and violent antagonism towards migrants. In order to create safer spaces for migrants in our countries we need to stop isolating ourselves from the rest of the world by adhering to ‘national identity first’ politics and admit that borders will not stop the tides of globalisation.