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Why Human Rights Fail to Protect Undocumented Migrants


Academic year: 2023

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On the basis of the Convention on the Rights of the Child, I try to explain why these problems are difficult to solve with formalistic legal strategies (Section 2). I come to the rather counterintuitive conclusion that international human rights law, in combination with the political thinking that shapes contemporary understanding, actually contributes to the subjugation of the undocumented migrant (Section 7). The Convention on the Rights of the Child (hereafter CRC)9 is one of the most successful human rights treaties in terms of the large number of states that are party to it (193 states out of 203 states worldwide).

This suggests that there must be an authority before the obligations accepted upon ratification of the Convention. This would logically allow for a referral of the undocumented migrant to the enjoyment of human rights in another country after she has left or been removed from the host country. Overall, this position seems to endorse a liberal image of the undocumented migrant as a rational actor.

Much of the discursive power available to the concept of jurisdiction derives from its association with territory. Thus, Anna cannot point to her body and the map of Stockholm without simultaneously pointing to the border of the kingdom. It is the International Convention on the Protection of the Rights of All Migrant Workers and Their Families from 199040 (hereinafter the Convention on Migrant Workers, abbreviated CMW).

The Migrant Workers Convention obliges States Parties to provide legal remedies against possible violations of the rights listed therein (Article 83 CMW). However, any such complaint may alert enforcement authorities to the complainant's undocumented status, leading to detention and removal. Any solution may come at the price of deportation, which makes CMW Part III rights virtually untenable for undocumented migrants.

In the following, therefore, I must be attentive to the interaction of state and private agents, of the host country and the employer in articulating how the situation of the undocumented migrant worker is structured. However, they do not detract from the point that the inferior political capacity of the undocumented migrant will persist even among polite trade unionists. The line taken by the drafters of the CMW is that labor law safeguards are a barrier to the employment of undocumented migrant workers.

In the oikos, the status of an undocumented migrant as a productive worker is legally guaranteed. 68.

A Covenant on Servitude?

Unlike documented workers, the undocumented migrant worker cannot contract herself out of her predicament, and is therefore determined entirely by her status, in the oikos as much as in the polis. In tracing this heritage, I am not interested in indicting undocumented migrant labour, international law or human rights through association with the emotionally and historically resonant term of slavery.76 Yet I wonder whether the withdrawal of voting rights in the Migrant Workers Convention and in the reservations to the Convention on the Rights of the Child is produced – or reproduced – by a probably Hobbesian conception of sovereignty in general.77. Nyquist's analysis, which I will let guide the following presentation of Hobbes's thought, emphasizes that the productive elements in his doctrine of war slavery are the "irresistible power" of the victor and the fear of the vanquished prisoner.

However, in Hobbes's account, the subjugation and enslavement of the vanquished does not come automatically because of this power imbalance. 74) “In every estate and household, whether or not there are slaves [servants], what free citizens and family children have more than slaves is that they perform more honorable offices in the estate and family and enjoy more luxuries . ". Scarpa's monograph is just one example of the widespread use of the term slavery as a blatant metaphor in the context of human trafficking.

She seems to be characterized by the opposite, i.e. avoiding any contact with representatives of the police. There is a mutual security in this indulgence, as in the case of the war-slavery pact, where the victor spares the captive's life, if only for the moment, and the vanquished accepts a form of servitude so depleted of all autonomy as to eliminate renewed risks for the victor. This is precisely the net result of the double submission to polis and oikos carried out by the undocumented migrant worker.

The parallel I want to draw presupposes a fantasy of power and violence about the "irresistible power" of the conqueror's military force threatening the conquered. As already mentioned, Hobbes saw the covenant of war slavery as opening a way out of the state of nature on the battlefield.85. Council of the European Union, Stockholm Program - An open and secure Europe that serves and protects citizens, Doc.

State Obligations and the Public-Private Divide

It therefore follows that being an undocumented migrant worker is a choice; a choice characterized by the same rationality that inspires the vanquished to prefer slavery to death.88. migrant that the polis as the prototypical space for the implementation of human rights is by definition inaccessible to her?. I describe this exclusion as a form of privacy in relation to the public sphere of the state polis. Doing so allows me to argue that any behavior that "gives" human rights to undocumented migrants in hiding must overcome this boundary between public and private.

The private sphere would potentially require the human rights obligation to be positive, that is, an obligation that requires the state not only to refrain from certain behavior in the public sphere, but also to actively pursue a policy that gives effect to a right. To argue that a state has an obligation to invade the private sphere of the oikos and "bring" human rights to undocumented migrant workers, I would have to show that relevant human rights obligations a) involve positive obligations, and b) that these positive obligations include obligations about the strength required to break this particular public-private divide. This helps me to understand why human rights for undocumented migrant workers are so severely restricted in the Migrant Workers Convention.

I interpret this to mean that only the emergency health component of the right to health has the requisite force to positively oblige states parties to provide urgent and life-saving treatment to undocumented migrant workers. More demanding is the case of undocumented migrants who do not work or belong to the family of an undocumented migrant worker. Since human rights violations are a matter of legitimate international concern, such intervention also extends to the aforementioned field of the "international".

Which is exactly what a state that wants to actively extend human rights protections to undocumented migrants must do. There is no indication in international human rights treaty law or in state practice that obligations arising therefrom are endowed with the necessary additional strength to make humanitarian interventions or interventions linked to the responsibility to protect mandatory. States remain free to intervene where the preconditions are met, but have no duty to do so.89 Given the structural analogy between the case of humanitarian intervention and the case of undocumented migrants, it follows from a rights-theoretic approach that states continue to is free to "bring" human rights to undocumented migrants, but lacks a duty to do so.

Christianity, Privacy and the Undocumented Anti-Man of Rights

It culminates in the image of the surrender contract, which applies as much to the war slave as to the undocumented migrant. So far, all I know is that human rights are tied to the polis and oikos in a way that makes the failure of their universality always appear as a result of individual choice. Human rights not only invite us to think of their protective scope in an exaggerated way, they also tempt us to locate the responsibility for the lack of protection on the individual undocumented migrant rather than on the state.

Based on Werner Hamacher90 I would like to argue that this can be traced back to the gulf between the political man and the social man, which is already reflected in Tertullian's statement Nobis nulla magis res aliena quam publica (nothing is more alien to Christians than public state affairs). 91 Christianity manifested itself in its claim to the universality of human interiority and internal sociality, acquired at the cost of its separation from the political. The Protestant Reformation initiated the democratic revolutions of the sixteenth and eighteenth centuries, continues Hamacher, and Reformed Christianity "supplied its principle of universal equality of individuals (that is, of the direct relationship of the individual with God and the community ) implemented. and took the form of modern democracy – a form we still inhabit today.”92 For Hamacher, the modern state is therefore structurally Christian. Marx suggests that the "political form of democracy is Christian, because in it man—and not just one man, but every man—is regarded as the sovereign and supreme being."

Marx goes on to argue that man in his "unsocial aspect, his accidental existence, since he is under the rule of inhuman conditions and elements - this man is, in a word, man who is not yet a true being of the species." In this, I can easily recognize an undocumented migrant who, in her contingent existence, is "not yet" a person of human rights. Once she is regulated or removed, she will be, but as an undocumented migrant, she can no longer be "subject to inhumane conditions and elements".

However, this does not explain why this separation poses no problem for an avowedly egalitarian and, to speak with Hamacher, "structurally Christian" state. The decisive historical move in Hamacher's reading of Marx is that the modern state "confesses itself as a state" and thereby constitutes "a state that abstracts".


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