Part II: Interpreting the Convention: Human Rights,State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention

Abstract

Pursuant to the international legal principle of territorial sovereignty, states possess extensive authority to control the ingress of foreigners into their territory, but the presence of tens of millions of irregular migrants around the world reveals that states often fail to exercise such control in practice. As a result, international society is faced with the need to establish standards of appropriate treatment for irregular migrants who are present within the territory of receiving states. In view of the precarious social condition of these individuals, the need for human rights protections in this context is particularly urgent, but the interests of states in territorial sovereignty are also at stake. The International Convention seeks to accommodate these competing concerns by providing human rights protections to undocumented migrants which are substantial but less extensive than those provided to documented migrants, and through ensuring states’ continuing authority in the spheres of immigration control and national “membership policy.” The article concludes that, despite the unmistakable normative value of many of the Convention's protective provisions, the Convention's ability to substantially ameliorate the human rights situation of irregular migrants is significantly constrained by its overriding commitment to the norms and structures of sovereign statehood.

[W]hile the international legal protection afforded to aliens is on [the] one hand an inchoate expression of human similarities which cannot be denied, it is simultaneously an expression of national differences which are equally beyond question. (Morgan, 1988:142)