The Convention to Protect All Migrant Workers and Members of their Families has been heralded as a significant international achievement in the protection of migrant workers. Antoine Pecoud and Paul de Guchteneire assert that it represents “the most comprehensive international treaty protecting migrants’ rights and is therefore a crucial element in fostering respect for migrants’ human rights throughout the world” (2004:2). Increasingly numerous among international migrant workers are women, migrating independently in search of economic opportunity as part of livelihood strategies. Many women migrants from developing countries pursue economic opportunity in the sex industry, either by choice or necessity. Just as commodities move around the world in the age of economic globalization, sex and the women who sell it are also becoming globalized. While they may indeed succeed in earning much-needed income, many migrant sex workers (MSWs) may sacrifice their human rights entitlements based on citizenship, understood as membership in a nation-state. They often find themselves in a “citizenship gap” (Brysk & Shafir 2004), adequately protected by neither their country of origin nor that of destination. In response to this and other situations of vulnerability, and also an aspect of globalization, international human rights law has proliferated, based in the idea of universal human rights, entitlement to which does not require membership in a nation-state. In recognition of their specific vulnerabilities, migrant workers are the focus of the United Nations Migrant Workers Convention (hereafter the Convention or ICRMW). While respecting state sovereignty, this international treaty recognizes the universal human rights of migrant workers, irrespective of citizenship or migration status. As the vulnerabilities of MSWs to exploitation and abuse is an acknowledged possibility in prominent migrant-receiving countries like Canada, the Convention has the potential to provide much-needed protections to these women. Canada, however, has not signed or ratified the agreement. This paper investigates reasons for Canada’s apparent lack of interest and analyzes the protection the Convention would provide MSWs if Canada did ratify it.

I argue that while the Migrant Workers Convention represents a substantial international achievement in the acknowledgement of migrants’ human rights, its potential to protect in practice the rights of migrant sex workers in a citizenship gap in Canada is seriously undermined by Canada’s non-ratification of the treaty founded on various security considerations, and with ratification would be further undermined by the particular vulnerabilities of migrant sex workers and complications in accessing and exercising their rights.

This paper begins by laying some groundwork for the discussion. The scope and make-up of women’s migration and participation in the global and Canadian sex industries are outlined. Next, the citizenship gap is explained, and the rise of international human rights law and the Migrant Convention is elucidated. The investigation then turns to the first of two substantive topics addressed by the paper. Reasons for non-ratification are analyzed, including concerns about national, economic, social, and governmental security. Canada’s position on its non-ratification is explained, with reference to both politically-motivated and practical concerns. Considering Canada’s image-based interest in signing the Convention, and mention of the Convention in case law, the following second substantive section presents an analysis of the hypothetical protection of migrant sex workers if Canada were to sign and ratify the document. Here the potential efficacy of the Convention is questioned because of its failure to address the particular vulnerabilities of MSWs as racialized women and their ability to exercise rights owing to their often-times undocumented status and the quasi-regulated nature of the Canadian sex industry. The paper concludes by acknowledging the doubt as to the potential of the ICRMW to translate into meaningful protection of migrant sex workers’ rights and considers other present and potential initiatives at regional and local levels, highlighting those led by non-state actors.

WOMEN AS INTERNATIONAL MIGRANTS AND SEX WORKERS

The number of women in international migration streams is steadily growing, and today women account for just short of half of the international migrant stock. In 2000, women accounted for 49 percent of 174.9 million international migrants (Piper 2005: 3). While many women continue to migrate alongside male partners or participate in transborder family reunification schemes, the world is witnessing the entry of women into migration streams that used to be dominated by men, namely those of independent economic migrants and main income earners of the family. In short, more and more women are migrating in search of work and migration has come to be deemed “feminized”, aligned to a parallel trend in poverty (ibid.). Reasons for women’s independent migration are diverse, and include economic, political, and socio-cultural rationales. Women’s negotiation of a combination of push factors in countries of origin and pull factors in potential countries of destination compel them to migrate (Hill Maher 2004).

While comprising nearly half the official migrant stock is significant, the reality is that women migrants could well outnumber men. Women’s numbers in economic migration streams may be underestimated because they tend to suffer more than men from invisibility in terms of their migration status and the nature of their work. They are more likely to be, or become, undocumented at destination. They also tend to be concentrated in sectors that are “private”, informal, and/or involve some degree of illegality, mainly domestic work and “entertainment” or sex work. Principle causes of women’s concentration in these sectors include the undervaluing of women’s labour, their tendency to be “unskilled”, restrictions on their right to work, and labour market discrimination (Piper 2005; Hill Maher 2004). These circumstances relegate them to work in the undervalued sectors at the so-called bottoms rungs of occupational stratification.

Global and Canadian Sex Industry

Paola Monzini (2005) and Victor Malarek (2003) provide useful insight into the growth of the global sex industry. Both authors show how supply and demand figure as interdependent variables in the growth of sex work as well as its increasing transnational character. Gender-related factors have fuelled both supply and demand, such as the liberalization of sexual mores, changes to gender relations that have left men feeling the need to reaffirm, however temporarily, their control over women, and the feminization of poverty. Alongside these trends is the growth of the global market economy, which can commodify just about anything. As such, the transnational sex market has ascended with the rise of economic globalization. And in so far as it involves illicit activities, the global sex industry is an aspect of “criminal globalization”, the emergence of global networks of sex trades, drug trafficking, and terrorism (LCC, 2006).

The sex industry in Canada consists of a variety of activities, from dancing, stripping and massaging in formal establishments to selling sex in informal settings, better known as prostitution. The industry is a thriving one, supported in large part by demand for and supply of exoticized migrant women. Relatively few studies have been done on migrant women’s engagement in the sex industry in Canada (McDonald et al. 2000; CIC 2000; LACEV 2002), but the information that is available suggests that the number of migrant women involved is in the tens of thousands. They come primarily from Southeast Asia, Central and Eastern Europe, and Latin America and tend to concentrate in major cities such as Vancouver and Toronto. The population of migrants in Canada’s sex industry was bolstered by a government program in operation from 1998 to 2005 that allowed entry to women from less-developed countries to work as exotic dancers because of a purported shortage of such entertainers in Canada; in short, Canada actively recruited foreign women to work in its sex industry.

There is no one profile of a migrant sex worker in Canada. These women arrive, enter, work and live under varying conditions, involving greater or lesser degrees of choice, freedom, and prosperity. They may arrive independently or accompanied, and enter legally or not. Those who enter legally tend to do so with a visitor or temporary work visa, which they often over-stay (McDonald et al. 2000). Some may have been trafficked or smuggled to Canada, some having an idea of the work they would do upon arrival and others no. Macklin (1999) argues that a loophole in the exotic dancer program stipulations spawned a racket in the importing of foreign women, resulting in abuse, extortion, and forced prostitution. And with the cessation of this program in 2005, would-be female migrants to Canada have been diverted to illegal entry, making them extra vulnerable to abuse and exploitation. Some women come to Canada planning to engage in other work, in either unskilled or skilled sectors, but finding employment difficult to secure, they enter sex work out of necessity.

In terms of locations, conditions, and terms of work, research suggests that these vary, too. Women may work in more or less formal establishments, such as strip clubs or massage parlours, or may work the streets, often with pimps. Some work and live relatively independent of control or coercion whereas others may find themselves in situations of indentured labour, with a sizeable debt to repay to those who facilitated their migration (McDonald et al. 2000).

It should be noted that not all migrant sex workers are victims of deception, exploitation and abuse. While McDonald et al. (ibid.) estimated that about half of the migrant sex workers they interviewed for their study were trafficked by definition, it is all but impossible to say with any accuracy how many migrant sex workers come to Canada and work in this profession by choice. A reality for many of them, however, is a “citizenship gap”.

THE CITIZENSHIP GAP

“The opportunities available through migration are counterbalanced by losses in rights and citizenship” (Hill Maher 2004: 131).

Brysk and Shafir assert that globalization has created a “citizenship gap”, which has put non-citizens and “second-class” citizens at risk (2004). This gap is explained by the state-based citizenship system in which individuals are granted rights by virtue of their membership - not only presence in - nation-states. Hypothetically, migrants have three bases for rights claims: countries of origin, countries of destination, and international human rights instruments. Migrants often encounter some degree of limitations with all three of these (Hill Maher 2004).

While countries with a strong presence in the world, such as the United States, are able to offer substantial protection to their nationals abroad, many more countries, especially less developed ones, are not empowered (and often not motivated) to do so (ibid.). And a growing number of migrants worldwide live and work in nation-states as non-citizens, making them ineligible for citizenship rights provided by countries of destination. A different group of migrants are better described as second-class citizens, those who enjoy fewer membership rights, either by entitlement or access, than full citizens (ibid.). Which situation migrants find themselves in depends primarily on their terms of entry - whether they are permanent residents, have temporary permits, or are undocumented. These three categories are accompanied by diminishing formal rights (Hill Maher 2004).

A lack of protection from states of origin and lack of eligibility for rights protection in countries of destination together constitute the citizenship gap. In short, the citizenship gap signals that citizenship rights are complicated by migration (ibid.) and many migrants fall between the cracks of the rights protection system (Brysk & Shafir 2004). Whether human rights instruments can protect migrant workers in these situations is a question that this paper addresses.

Migrant sex workers in Canada may well find themselves in the citizenship gap. The by and large less-developed countries they come from are generally not able and/or willing to protect the rights of their nationals living abroad. With respect to their status and entitlement to rights in Canada, some may be here legally, perhaps under a temporary work permit. For many more, however, citizenship rights are often limited or non-existent, perhaps due to having been trafficked or smuggled into the country, and therefore being either undocumented or falsely documented. Others come in under visitor’s visas while others overstay their work permits (McDonald et al. 2000). Migrant sex workers enter and work under a variety of conditions, but suffice to say at this point that the citizenship gap is a lived reality for thousands of migrant sex workers in Canada.

INTERNATIONAL HUMAN RIGHTS DISCOURSE AND THE MIGRANT WORKERS CONVENTION

Potential solutions to “rightslessness” in the citizenship gap may lie in the universalization of human rights, that is “the endowment of individuals with rights by virtue of their common humanity” apart from their bonds to a state (Brysk & Shafir 2004: 4). Traditionally, it has been citizenship - generally described as formal membership in a bounded political community (Shafir 2004) - that has entitled individuals to rights. Citizenship-based rights regimes, however, have created inequalities in protection both within and between nation-states. The universalization of human rights aims to make rights access more equal (ibid.).

Although the idea of universal human rights is based in natural law, the historical trajectory of these developments is relatively recent. Before the Second World War, the protection of rights remained largely within the domain of domestic jurisdiction and national law. In the post-War period, international human rights law proliferated, with the rise of international law more generally in recognition of the fact that certain issues increasingly could not be dealt with by single states (LCC 2006). Since the “globalization decade” of the 1990s, in particular, universalized human rights doctrines have been gaining on citizenship as the main purveyors of rights (Shafir 2004). This fits with a general trend of “legal globalization”, which includes the harmonization of national laws and the proliferation of international law (LCC 2006).

Ironically then, the same globalizing forces that have been driving the citizenship gap also constitute the impetus behind a system of rights protection that may help to close that gap: “globalization also creates new opportunities and multiple venues in which to claim rights in other states and global institutions” (Brysk & Shafir 2004: 7). In this realm of universality, rights are proposed without the membership or responsibility provided by citizenship; they are based in an idea of justice (LCC 2006).

The tangible results of this shift in thinking about rights entitlement and protection are dozens of international human rights customary laws and treaties (ibid.) introduced and adopted by the United Nations (UN), the International Labour Organization (ILO), and other international and regional bodies such as the European Union (EU). The most well-known human rights customary law is the UN Declaration of Human Rights, adopted in 1948 (ibid.). Treaties developed since then have narrowed the focus to particular types of people, categories of rights, and situations of rights violations. Examples of each type of focus include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979), International Covenant on Economic, Social and Cultural Rights (1966), and the Convention on the Rights of All Migrant Workers and Members of their Families (1990), the topic of the present discussion.

A transition in thought about where rights derive from is occurring, albeit in a contested and partial manner. The institutional framework for universal rights is emerging at the global level in the form of signed documents, and international law is assuming a greater role in determining state behaviour as individual rights are gaining currency vis à vis international order as the ruling principle of the international system (Spiro 2004). However, the sovereign nation-state remains the primary institution that administers and enforces rights, including those deemed to be universally held. The international and regional organizations adopting the rights instruments have no independent rights enforcement mechanisms and so are restricted to monitoring roles. If states formally accept international human rights laws, they must incorporate these into domestic law, and because of the primacy of national interests in policy-making, the enforcement of universal human rights has been partial at best (Shafir 2004). Herein lies the fundamental paradox of modern citizenship: since states continue to be the enforcer of human rights, and entitlement to rights protection within a nation-state is based on membership therein, individuals generally do not in fact enjoy rights by virtue of their humanity but by virtue of their membership in a territorially based nation-state (ibid.). Some international human rights documents such as the Migrant Workers Convention have sought to address this paradox by explicitly demanding rights protection for non-citizens.

While international human rights discourse may be proliferating, migrants’ rights have tended to remain on the margins of the international human rights agenda.¹ It has been increasingly acknowledged, however, that migrants are particularly vulnerable to rights abuses and have not historically received adequate protection (Pecoud & de Guchteneire 2004). Their vulnerability stems from their unfamiliarity with legal systems and administrations, lack of awareness of their rights, racism, xenophobia, discrimination, and participation in less favourable types of income-earning activities. And being in the citizenship gap, their access to rights protection is problematic. It is because of these vulnerabilities that a movement to identify and codify the unique positioning of the rights of migrant workers was launched.

The Convention

“[The Convention] represents the most direct attempt to elevate the plight of migrant workers from a matter of foreign relations between individual states to the domain of the international community” (Macklin 1999: 4)

The Migrant Workers Convention has been heralded as a great international achievement in its recognition of the universal human rights and particular vulnerabilities of migrant workers. In targeting this population, this Convention provides protection to one of the most vulnerable groups of people, complementing Conventions on children, women, and victims of torture or discrimination (Pecoud & de Guchteneire 2004).

The origins of the Convention lie in the work of the ILO, which has historically been the organization in charge of the protection of migrants since its creation in 1919 (ibid.). Two ILO conventions related to migrant workers - numbers 97 and 143 - were adopted in 1949 and 1975 respectively, but government distrust developed thereafter with respect to the ILO’s partiality toward unions, so the Migrant Worker Convention was put in the hands of United Nations to develop and adopt. A working group was established in 1979, and on December 18, 1990, after 10 years of consensus-based development, the Convention was adopted by the UN General Assembly (ibid; Hune 1991).

The ICRMW is an example of “soft” international law in that it is not legally binding (LCC 2006) but it carries significant substantive and moral weight. The Convention is an attempt to ensure that migrants have their fundamental human rights protected, and makes the applicability to non-nationals explicit, in contrast to other conventions. It makes reference to the particular vulnerability of undocumented or otherwise irregular labour migrants, the first time this has been done in international law (Bosniak, 1991). It provides the first international definition of “migrant worker”: a person who is to be engaged, is engaged or has engaged in a remunerated activity in a State of which he or she is not a national (UN, 1990). The Convention is composed of nine parts. Most importantly, Part III lists the rights that all migrants should enjoy, and Parts VI and VIII detail the obligations and responsibilities of states toward migrant workers.

Things to which all migrant workers have a right, as detailed in Part III, include: life, security of the person and property (including immigration-related papers), freedom from slavery and cruel treatment, fairness in arrest, detention, and punishment and expulsion from the country, equality before the law, same treatment under labour law as nationals, health care, consular or diplomatic help, and information on their rights. As outlined in Part VI, states have the obligation to: provide information and services to migrant workers, cooperate with other states in returning migrants to their home countries as required, and to combat irregular and clandestine migration. Part VIII adds that states must ensure the provision of the rights outlined and that violations are remedied appropriately, and create or change domestic law as necessary to adhere to the requirements of the Convention (ibid.).

The ICRMW seems to reflect an acknowledged and growing concern for individual human rights, and those of migrants more specifically. It remains to be seen, however, whether this international achievement is more a matter of paying mere lip service to the protection of migrant rights than it is of actual concern and intent to protect. It took 13 years for the Convention to garner the 25 ratifications necessary to put the document into effect in 2003 (Pecoud & de Guchteneire 2004), and to date only 34 countries have ratified it (OHCHR 2006), most of which are migrant-sending countries. No major migrant-receiving state has ratified the Convention, including Canada. There are some positive signs with both the European Parliament and the Organization of American States recently supporting ratification, but whether member countries will comply remains to be seen (Pecoud & de Guchteneire 2004).

While the Convention “has the very merit of existing” (ibid: 22), this low level of ratification seriously calls into question the extent to which this document can protect the rights of migrant workers, and provokes the question, why have not more countries signed on?

ANALYSIS OF LOW RATIFICATION OF THE CONVENTION

Piper points out that conventions specific to migrant workers (ILO Conventions numbers 97 and 143, and the ICRMW) have extremely low ratification rates when compared to other women-specific and migration-related treaties, such as CEDAW and those concerning refugees, trafficking, and smuggling (Piper 2005). Considerable evidence suggests that reasons behind this boil down to lack of political will, caused by a number of factors, not the least of which is concern with national security and state sovereignty.

Antoine Pecoud and Paul de Guchteneire provide insight into the low ratification rates of the ICRMW by examining the results of UNESCO’s research on the issue. The research shows that lack of interest can be attributed to the Convention being a relatively marginal one as far as international issues are concerned, and to being too detailed and ambitious for states to accept. What makes the Convention too ambitious for dominant countries of immigration like Canada? The answer seems to lie in its perceived threat to security (national, economic, social, and governmental), and administrative efficacy.

First, in the post 9/11 era in particular, national security is perhaps the foremost concern of states, and anything that would impede the state’s ability to control its borders it generally seen as a threat. The UNESCO research suggests that there is belief among states that the Convention encourages undocumented migration, and restricts state freedom to make migration policies as they see fit. The latter is a key element of state sovereignty, a state’s “competence to prescribe and apply law to persons, things, and events within its territorial domain to the exclusion of other states” (Bosniak 1991: 743). This includes the legitimate right to determine entrance into a territory and membership of a political community (Pecoud & de Guchteneire 2004; Bosniak 1991). Hune (1991) alleges that a tension between providing individual human rights to migrant workers and preserving state sovereignty pervaded the Convention’s drafting process, consistent with the tendency of international agreements to be seen as constraining a state’s freedom to choose a given policy path (LCC 2006), and therefore of state sovereignty considerations to shape international action. While we see the idea of individual rights gaining currency as a principle governing the international system, there remains widespread adherence to principle of state sovereignty (Spiro 2004).

Both of these fears - over undocumented migration and state sovereignty - are unfounded and based on an incorrect reading of the document (Pecoud & de Guchteneire 2004). International migration law more or less uncritically accepts the state’s right to restrict entry of non-citizens (Macklin 1999), and the ICRMW is no exception. Article 68 encourages states to combat irregular migration and illegal or clandestine employment, and Article 79 states that “Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families” (UN, 1990). The prerogative remains with states to set immigration rules. As such, while the Convention is a “ringing declaration of individual rights”, it is also a “staunch manifesto in support of state territorial sovereignty” (Bosniak 1991: 742).

With respect to economic security, an argument has been made that the measures required by the Convention would be too costly. Governments say they are already spending sizeable sums on combating irregular immigration and ensuring protections for legal migrants. Additional costs would be associated with the need to establish additional services for migrant workers, and to equip the government administration with the necessary tools and knowledge to put the Convention into effect, both in law and practice. With the ethos of the administrative efficiency and cost-cutting that permeates many Western states today, the Convention simply appears to be too costly to address the administrative barriers and provide services to migrant workers (Pecoud & de Guchteneire 2004).

In addition, undocumented migrants in particular play a particularly important economic role as they provide cheap flexible labour (ibid; Hune 1991). Audrey Macklin argues that the Canadian economy needs migrants to do “3D” work - dirty, dangerous, and degrading - that Canadians would rather not do, and employers can pay them less than they would Canadians (Macklin 1999). In short, countries harness the cheap labour of migrants as it serves domestic interests. Women migrants, in their roles as sex workers, domestic workers and mail-order brides are a bargain for Canadian johns, parents, and single men, Macklin says. From this perspective, granting rights to migrants is understood as economically counter-productive (Pecoud & de Guchteneire 2004). Macklin asserts that the real reason behind Canada’s lack of interest in the ICRMW is that “its fundamental premises - that migrant workers should not be exploited, and that exploitation can be prevented by entitling migrant workers to the same legal protection as nationals - misses the whole point of migrant labour” (1999:1) and that “any instrument which fails to grasp this essential nature of migrant labour arrangements is doomed to irrelevance” (4).

While it is important that the state be able on a practical level to implement the Convention, Pecoud and de Guchteneire argue that financial infeasibility is not an acceptable excuse for non-ratification, given that other potentially costly UN conventions have been widely ratified, even in the absence of adequate financial resources for their implementation immediately at hand. If there exists a political will to ratify the Convention, they argue, financial obstacles can be surmounted.

Related to the issue of economic cost in the neo-liberal era is the extent of the state’s willingness to provide social security. The point here is that the state is only willing to provide so much in the way of social security provisions, and favour will be given to citizens. Hill Maher argues that “neoliberal and ‘trickle down’ reforms in Western democracies have eroded state responsibility for providing social rights in places with a strong tradition of social services, such as Canada” (2004: 144). Nicola Piper adds to this line of argument: “The disengagement of many governments from the provision of social benefits has been accompanied to some extent by diminished entitlements available to all residents” (Piper 2005: 2). In short, citizens are getting less in terms of social security provision from the state, so non-citizens should expect even less.

Fourthly, related to national, economic, and social security is the security of the government of the day. In short, if the citizenry deems the state’s management of public affairs as negligent, it has the means, by way of the ballot, to oust that government in favour of another willing to act in the perceived public interest. Hill Maher and Pecoud & de Guchteneire argue that many Western democracies have experienced a resurgence of nationalist sentiment and mobilization, much of it targeting migrants; public opinion on migration is increasingly negative. This is in part due to public concerns about national, economic, and social security. For example, there is a belief among Western populations that the provision of social services to non-citizens puts too much of a strain on the public purse, that granting additional rights in this regard is too generous. Partially as a result of public sentiment and pressure, right-wing parties with anti-immigration platforms have gained strength in many Western democracies, including the United States, and arguably to a lesser extent, Canada. In short, “these kinds of political and cultural trends toward reinforcing rights based on nation-state identity or membership make rights claims based on universal personhood seem less feasible” (Hill Maher 2004: 138).

Finally, some countries have said that they simply do not have the administrative capacity to implement the Convention, and furthermore are confused as to how to integrate the ICRMW with other international documents they have committed themselves to. Difficulties may arise in coordinating efforts within the state to adapt the standards of the Convention to different sectors and existing laws, and bureaucrats do not have sufficient time to figure out how to do this. Furthermore, many states have signed on to other bilateral, regional and international agreements, and how the requirements of these relate to those of the ICRMW is not always clear. With the proliferation of treaties, states have no single text to follow on migration or human rights issues and therefore do not feel inclined to adopt any others that might only add to the confusion (Pecoud & de Guchteneire 2004).

Canada’s Position

What has Canada said with respect to its reasons for not ratifying the Convention? While Canada was not included in UNESCO’s research, the Government of Canada has responded to questions about its non-ratification. Its response, as posted on its website, is as follows [italics added]:

“Canada does not have a class of Migrant Workers per se. Any non-Canadian who is authorized to work in Canada is protected by the same employment standards legislation as Canadian workers, and has the same access to government programs and services for workers. As such, we have no immigration policies in this regard that are inconsistent with international human rights instruments and have no discriminatory policies and practices against migrants in our laws for us to remove.” (Canadian Heritage 2003)

Note that the situation of undocumented migrants is not acknowledged. It will perhaps come as little surprise that Canada was one of the countries that fervently argued for the inclusion of Article 79, which reinforces states’ right to control admission to their territories (Bosniak 1991). Furthermore, immigration policies that offer protections and services to documented migrants are indeed inconsistent with international human rights instruments, namely the ICRMW itself that requires that undocumented migrants be protected!

In a letter in 2001 to the Migrant Workers Committee, the organization charged with overseeing the implementation of the Convention, the government elaborated on its position (OHCHR 2006). As regards temporary workers without permanent residency status, the governments finds it inappropriate under existing Canadian laws to “provide these people with rights such as the right to educational, housing and unemployment benefits.” Furthermore, the government finds serious flaws in the Convention’s drafting, namely extra-territorial obligations that states cannot validly fulfill existing international law, but is not specific as to what these are.

In short, the individuals to whom the Canadian government wishes to grant rights are already protected by existing legislation and commitment to other international treaties, and reservations about certain parts of the Convention have further swayed the government against ratifying it. The former reasoning fits with the arguably unjust but commonly-held idea that those who are not party to the social contract that binds the national community are owed nothing more than minimal human rights protection (Bosniak 1991). The latter reasoning is problematic. While Article 88 prohibits states from excluding any Part of the Convention in its application, Article 90 allows states to request revisions to the document and Article 91 contains provisions for the registering of reservations about the Convention (UN, 1990). In short, if Canada does not like certain parts of the Convention, it can raise issue and seek revisions. Dissatisfaction with parts of the agreement does not justify Canada’s dismissal of it in its entirety.

Overall, one gets the general impression that Canada’s reasons behind not signing or ratifying the Convention lie in the consideration of national interests, lack of political will to cooperate internationally, and discrimination against undocumented migrants. Piper argues that we could benefit from much more thorough analysis of political will, including investigation into the processes through which international norms are made part of domestic legal and political systems to see why so much resistance plagues documents such as the ICRMW (Piper 2005). The Law Commission of Canada (LCC), in its recent report entitled Crossing Borders: Law in a Globalized World provides some insight here. The report examines globalization as it affects the effectiveness and legitimacy of the Canadian legal system. It presents some reasons why, strictly considering the challenges inherent in the relationship between domestic and international law, Canada may be reluctant to sign the treaty.

A “democratic deficit” is a salient feature of the negotiation of international treaties and subsequent changes to domestic law. The LCC describes this as a “sidelining of the Parliament fuelled by the expansion of executive government [the cabinet]” (2006: 7). Negotiations of agreements such as the ICRMW are typically held behind closed doors, without any real public process, and the executive, rather than democratically elected legislative branches, bind countries to the agreements. Key actors in Canada’s negotiating team are officials from federal departments, not ministers, with Foreign Affairs Canada acting in a coordinating capacity.

If Canada signs and ratifies the Convention, it would have to ensure that domestic policies are in adherence with the Convention’s articles, and the courts would then have to apply the new laws. Canada is a “dualist” jurisdiction, meaning that an international treaty has no direct effect on domestic law until domestic legislation is passed to “transform” it into Canadian law (ibid: 26). This is a response to the “democratic deficit” argument in that it puts the legislative body of government back into the law-making process. However, the policy changes that international treaties compel Canadian law-makers to make generally cannot be carefully scrutinized by Parliaments and citizens. And this lack of citizen participation is potentially multi-leveled; laws in line with the agreement must be passed at the federal, provincial, and even municipal levels, depending on which has jurisdiction over the legal matters in question. So the “democratic deficit” applies to both the negotiation of the treaty and its application in domestic law. And this deficit, combined with citizens’ other concerns with national and social security, combined with an anti-migration sentiment, could spell political suicide for the Canadian government that signs and ratifies the Convention.

On a more practical level, complicating this process is the lack of clear rules on how to “transform” or “implement” a treaty into Canadian law, nor benchmarks to indicate when this has been successfully done. The LCC points out that the process of international law-making and globalization is imperfect, resulting in a “confusing patchwork of both transnationalized and domestic law and justice, a legal system that is quasi-globalized” (ibid:11). This can make matters confusing for the courts, but also gives the judiciary some leeway to pick and choose among available laws.

This relationship between international and domestic law is clearly no easy matter. However, the fact that Canada has signed, ratified and implemented several other international treaties weakens lines of argumentation related to the (im)practicalities of signing the ICRMW. Canada has, several times before, more or less successfully negotiated this processes of implementing international law. It would see that Canada reluctance has much more to do with politically-driven considerations than practical ones.

While the executive and legislative branches may be obstinate toward the Convention, hope for the document in Canada may lie with the judiciary. Canadian courts are increasingly prepared to view international human rights instruments, even unimplemented ones, as inspiration and aids in deciding cases (ibid..). To date, the ICRMW has been mentioned once in Canadian case law, in Fraser v. Canada (Attorney General) (2005). A case was made by the director of the United Food and Commercial Workers Union against the requirement that migrant workers participating in the Seasonal Agricultural Workers Program (SAWP) pay employment insurance premiums without possibility of receiving regular benefits, alleging that this amounted to discrimination under s. 15 of the Canadian Charter of Rights and Freedoms.

In trying to determine whether the status of migrant agricultural worker should be considered a ground of discrimination, Justice J. Ducharme said that the status as migrant worker more generally had gained prominence with the entry into force of the ICRMW. He drew lines of similarity between Charter and the Convention with respect to principles of equality and non-discrimination. And although the Convention has no direct application in Canadian law, he said it can serve as a valuable aid in interpreting the Charter. He noted the decision of Justice L’Heureux-Dubé from a previous case not involving the ICRMW in particular. She said that the values and principles enshrined in international law constitute a part of the legal context in which legislation is read, and that international human rights law is “a critical influence on the interpretation of the scope of the rights included in the Charter.” Justice Ducharme continues: The ICRMW “can be said to be evidence of an emerging global consensus. The inclusion of the foreign migrant worker as a subject of international human rights law could be said to support its inclusion as an analogous ground of discrimination.” While the case was dismissed, the dismissal had to do with the particularities of the Employment Insurance Act and the SAWP, not ostensibly with any inappropriateness of applying the ICRMW to this case of discrimination. So it would seem that case law has established a precedent of sorts with respect to the application of the Convention to domestic law.

Will Canada Sign?

Despite the mounting reasons for not signing the ICRMW, Canada may one day sign and ratify the Convention. Even though the principles of “soft” international law like the ICRMW are not legally binding, they can have “enormous moral force” (LCC 2006: 24). States looking to avoid embarrassment and retain credibility have good reason to sign. Macklin (1999) argues that Canada has an interest in signing, in so far as the Convention is meant to embody minimum standards of decent and fair treatment for migrant workers. This type of compulsion for Canada may well be dependent on other major migrant-receiving nations signing first, however. There is regional pressure, though; as mentioned above, the Organization of American States (OAS) has urged its member states to sign. And perhaps most importantly, a precedent has been established in Canadian case law. If the Convention gains more prominence in court decisions, especially those decided in favour of migrant worker appellants, perhaps the legislature will have to sign, ratify, and implement the Convention, as legislative action often follows case law.

Thinking optimistically about the odds of Canada’s ratification, it would be a useful exercise to consider whether migrant workers in Canada would be protected by the Convention and its implementation in domestic law. As arguably the most exploited group of migrant workers - sex workers - theoretically would have much to gain from the Convention. In the following section the Convention’s potential efficacy in protecting migrant sex workers will be analyzed.

WOULD THE CONVENTION PROTECT SEX WORKERS?

Convention’s Potential Application to Sex Workers

Part III of the ICRMW which outlines the rights to which all migrant workers are entitled, has the potential - on paper at least - to improve the status and situation of migrant sex workers. As mentioned above, these women enter by a variety of means and work under varying conditions and circumstances. At least some Articles of the Convention can be brought to bear on migrant sex workers, many more if we consider those women who are coerced, exploited or abused.

Most basically, all but the most exploited migrant sex workers seem to fit into the Convention’s definition of “migrant worker”: a person who engaged in a remunerated activity in a State of which he or she is not a national (UN 1990). Admittedly, there is a small minority of women who are not paid for their work at all; their “earnings” are confiscated by their pimps and traffickers. While the extent to which this happens is unknown, even a few such cases are certainly troubling and cannot be addressed in the scope of this paper. The majority of women, however, earn at least some money for their services. Furthermore, a fairly extensive set of rights applies to both documented and undocumented migrants (Article 5).

Some specific potential protections for migrant sex workers are as follows.

• Article 10 protects against torture and cruel and inhumane treatment while Article 11 prohibits slavery, servitude, or forced labour. Some extremely exploited and isolated women may experience such conditions.
• Under Article 15, it would not be permissible to deprive a sex worker of her property, and she would have to be fairly compensated if assets are illegitimately appropriated.
• Article 16 grants migrant workers the right to liberty and security of the person, and the right to be protected by the State in fulfillment of this right. This would apply to sex workers whose freedom of movement is restricted and who experience abuse.
• Should a migrant worker be arrested - which migrant sex workers do experience, for violation of either prostitution- or immigration-related offenses - she is also entitled under Article 16 to due process and information in a familiar language.
• Articles 17 and 18 would protect sex workers against discriminatory treatment in criminal proceedings; migrant workers are to be treated equally to nationals, including being presumed innocent until proven guilty and to have legal assistance provided.
• Articles 20 and 21 state that migrant workers cannot have their work- or immigration-related papers taken from them, which “trafficked” women may experience.
• If they are found to be in Canada illegally, migrant sex workers are usually deported. Article 22 provides stipulations for just treatment in this process, including informing the migrant of their rights in a familiar language.
• With respect to labour conditions specifically, Article 25 states the migrant workers “shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and…other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, [and] termination of the employment relationship”. Although not all women work in such regulated environments, many do work in establishments alongside Canadian sex workers and therefore should be treated equally in these stipulated regards.
• Article 28 provides the right to medical care, albeit that urgently required for the preservation of their life or avoidance of irreparable harm to their health. But this may, too, apply to migrant sex workers, who may experience physical or sexual violence, and are often at risk of contracting sexually transmitted diseases such as HIV/AIDS (Piper 2005).

So on the surface, many sex workers would be protected by several of the Articles of the ICRMW. However, what exists on paper often does not necessarily exist in reality. If Canada did ratify the ICRMW and translate its standards into domestic labour law, the efficacy of these laws in adequately protecting migrant sex workers must be questioned. For rights to protect migrant workers, they must recognize particular vulnerabilities and be accessible and exercisable. The potential for the Convention’s failure to adequately protect its target population lies in four distinctions among migrant workers that the Convention fails to adequately consider: gender, race/ethnicity, migration status, and occupational sector. Being a woman and of a distinguishable race or ethnicity makes a migrant sex worker more vulnerable, while being undocumented and working in a quasi-regulated sector hinders access to rights. Migrant sex workers are quadruply disadvantaged, and as such are both specifically vulnerable and less able to claim migrant rights as outlined in the Convention.

More Vulnerable: Gender, Race and Ethnicity Considerations

Migration is a gendered phenomenon, meaning that reasons for, experiences in, and outcomes of migration differ between women and men, based on their relative positions and roles. Little systemic and critical analysis has been done on the emerging international human rights laws, including the ICRMW, with respect to their impact on advancing human rights with special attention to gender differences in the experience of migration (Piper 2005). In short, a thorough gender analysis of the ICRMW is lacking.

If one were to attempt such a task, the first step might be to recognize that while the ICRMW includes women in its language, it lacks specific gender clauses and does not address gender-specific needs in any way (Macklin 1999; Hill Maher 2004). For example, the Convention contains no references to female migrants being prone to sexual exploitation. The document does use gender-specific language, such as male and female forms of personal and possessive pronouns (e.g. he/she). Furthermore, Article 1 states that the Convention applies to all migrant workers without distinction of any kind, including sex, and Article 2 is explicit in the equal treatment of males and females in the definition of migrant workers. However, including women in the language does not equate with addressing gender-specific concerns. Shirley Hune (1991), in her analysis of how the Convention relates to female migrants, points out that the failure of international migration law to address women’s concerns is a historical trend. While Piper (2005), Macklin (1999), and Hune (1991) point out that the Convention’s gender shortcomings do not limit the its applicability to women as the provisions can be interpreted in a gender-sensitive manner, there is reason to remain skeptical, in the least because the invisibility of gender-specific human rights violations may be reinforced (Piper 2005).

There would be no reason to worry if there were no gender-specific concerns about migration, but this is not the case. Migrant women are often positioned in strongly gendered ways in receiving countries, which can both make them more vulnerable to rights violations (Hill Maher 2004). Piper (2005) outlines seven forms of discrimination and abuse that migrants may experience differently according to their gender, and specifically that women may experience more often than men. These include: exploitative terms of work; restrictions on freedom of movement; labour market discrimination; dangerous and degrading work conditions; gender-based violence at work; gendered forms of racism and xenophobia; and restrictions on the ability to organize for rights protection (ibid; Hune 1991).

In short, while the Convention has the potential to improve how women migrant workers are treated, a narrow, gender-blind interpretation of the Convention’s protections may leave many migrant sex workers - the vast majority of whom are women - unprotected (Hune 1991).

In addition to its scant attention to gender-specific concerns, the ICRMW does not address the ways in which sex workers are potentially doubly disadvantaged or discriminated against. In addition to being women, they are often members of a racial or ethnic minority. The race, ethnicity, and culture of migrant sex workers are sexualized to construct a “super-feminine” version of women (Macklin 1999). It is often because of this multi-layered disadvantaged status - coupled with their low skill levels - that women are more likely than men to be over-represented in marginal, unregulated, and poorly paid jobs. Similar to its short-comings with respect to gender-specific concerns, the Convention does mention specific vulnerabilities owing to migrants’ race and ethnicity.

By focusing on a single aspect of experience - being a migrant worker - the ICRMW fails to adequately address women’s multi-layered disadvantaged status and intersecting vulnerabilities to rights abuses; in short, it does not acknowledge that racialized women perhaps need special protections. It has been suggested that a methodology of intersectionality be applied to human rights law in order to create a better set of standards for women migrant workers (Piper 2005).

(Un)Access To Rights: Migration Status and Sector Of Work

Many migrant sex workers arrive as, or become, irregular migrants. “Irregularity” of status means having arrived in a state without authorization, been employed there without permission, or having entered with permission and remaining after the expiration of a visa; in short, irregular migrants represent either a breach or failure of state borders, based in the idea of territorial sovereignty (Bosniak 1991: 742). Many human rights advocates, and some states that were party to the drafting of the Convention, contend that the legal and social status of irregular migrant workers in the countries in which they work makes the extension of substantial human rights protections to them especially urgent (ibid.).

While the Convention literally documents such contentions, there are two aspects of the document that immediately cast doubt on international commitment to seeing undocumented migrant workers as worthy of rights and protection. First, it contains an additional section (Part IV) that outlines additional rights that migrants in a “regular situation” enjoy. Second, as mentioned above, it contains an article requiring that states continue to combat irregular and clandestine migration.

Beyond this though, actually being undocumented, as many sex workers are, puts them in positions of heightened powerlessness with respect to claiming their rights. In short, being undocumented means that they are less able to access the rights that the Convention grants them. This owes to two factors: lack of knowledge and risk of deportation.

Being un- or falsely documented, and therefore not being a subject of accurate knowledge or protection by the state, many women migrants are unaware of the rights they do have. They are strangers to the destination society, and often unfamiliar with national language, laws, and practice, and so less able than others to know, and therefore, assert their rights (Piper 2005).

Increased awareness on the part of sex workers of their rights under the Convention would not necessarily mean they could claim them, however. Being undocumented means to constantly live with the risk of deportation if this migration status is discovered (Simic 2004). This is where the principle of state territorial sovereignty, reinforced by the Convention, comes back to haunt undocumented migrants. The state sees them as both “a violation of [its] sovereign exclusionary powers and as a rupture of the social contract which binds the nation” (Bosniak 1991: 755). Because states have the right to determine who can access their territory and is allowed membership, they have the right to expel those that are in the country illegally according to the laws they have created. They retain the ability to punish with expulsion those who broke the rules and escaped state control in the manner that they entered. It is thus in the situation of undocumented status that the debate between individual rights and state sovereignty undisputedly tips in favour of the latter.

This ever-present danger deters undocumented women from seeking assistance from state authorities (Macklin 1999). Picking up this line of argument, Bosniak argues that the real problem with the Convention “and one which seriously limits its efficacy as a human rights instrument” is that “its provisions protecting states’ sovereign prerogatives to control immigration will often effectively undermine or defeat the rights it provides to those migrants” because “efforts to exercise those rights…may well expose the migrants to expulsion and punishment for immigration-related violations” (1991: 759). She goes on to point out that there is nothing in the Convention to prevent such a result: “there is no provision that provides that undocumented migrants may not be prosecuted for immigration violations” notwithstanding any human rights not related to immigration that the Convention provides (760).

The same considerations apply to work-related human rights violations as well. If a sex worker goes to her employer to complain about her treatment, the employer can report her to state authorities for immigration-related violations. Although the employer has allegedly violated labour rights, the prioritization of state interests means that the state will be far more likely to pursue the enactment of immigration law than labour law; in short, the undocumented sex worker is more likely to be the object of state prosecution than her employer (ibid.).

Undocumented migrants’ ability to avail themselves of their rights is thus severely constrained. Because of the fear of exercising rights, they are not effectively available: the ICRMW “effectively threatens to take away with one hand what it has offered by the other” (ibid: 762).

In addition to being undocumented, many migrant sex workers work in a sector whose particularities complicate access to rights. There is a need to consider labour market sectors that are not only prone to exploitative practices but where labour standards do not exist or lack enforcement and monitoring (Piper 2005). Macklin points out the problem with the right to equality with nationals in rights entitlements when it comes to certain sectors: it is an empty promise when the occupation in question is excluded from employment and labour protection (1999). This is often the case for female migrants as they are more likely than men to work “off the books” in “private” settings (Hune 1991).

In writing on the applicability of labour rights to domestic workers, Nicola Piper points out that there are differences across countries with respect to whether domestic work is considered an area of legitimate employment. Hill Maher (2004) adds that domestic work occurs in private settings from which rights claims are difficult to carry out. Both of theses considerations apply in part to sex work as well. The sex industry is legal and regulated in some countries but not in others, and many activities in the industry occur in “private” or otherwise invisible and unregulated settings.

In Canada, some areas of the sex industry are legal and regulated with others are not, and certain activities are in fact illegal. In short, labour laws, that would ostensibly incorporate the Convention’s principles, do not apply to all manner of work in the sex industry. Massage parlours and strip clubs, for example, fall under provincial labour law and municipal bi-laws. Meanwhile, independent sex work, as performed by “street-walkers” for instance, is not regulated, and is in fact criminalized. While selling sex for money is not illegal per se, certain activities often involved therein are criminal offences, including running a bawdy house, procuring and living off the avails of prostitution, and communicating for the purposes of prostitution, as outlined in Sections 210 & 211, 212, and 213 respectively of the Criminal Code of Canada (Federal/Provincial/Territorial Working Group on Prostitution 1998).

The quasi-regulated nature of the Canadian sex industry owes to a few factors. First, while the government seeks to maintain public peace and safety, it sees a limited role in regulating what happens between two supposedly consenting adults in private settings. In short, sexual activity that is not bothering anyone else should not be regulated; the government does not belong in the bedrooms of the nation, as Pierre Trudeau famously said.

Second, considerable debate persists, especially in the feminist community, as to whether sex work is a legitimate type of work. Some make sex workers out to be victims while others see them as economic agents. On the opposing side are those who refer to the women as prostitutes or “prostituted women” and see women’s selling of sex as an exploitative interaction that reinforces women’s role as sex objects and men’s role as consumers of such. They point to lack of real “choice” among women to participate (and therefore the act is akin to sexual assault), the potential for physical and sexual violence, and damage to women’s integrity and self-esteem. This focus on women as victims can be particularly acute when some Western feminists’ aligned to this view concern themselves with the “Third World prostitute” in an effort to justify their interventions (Doezema 2001). At the other end of the spectrum are those who use the language of “sex work” and see the selling of sex as a legitimate economic activity that women generally voluntarily participate in to earn their livelihoods and one that they may well prefer to do over other ways of earning money (Lacsamana 2004). It would seem that the Canadian government, by regulating only some activities of the sex industry, falls somewhere in the middle, not willing to judge whether selling sex is morally acceptable or not, and remains focused on its role as public, not private, arbiter.

So while migrant sex workers would by definition be migrant workers according to the Convention, this definition does not fit with how sex work is regulated in Canada. In order to access their Convention rights, sex workers would have to fall under the domestic laws that would put the Convention into effect in Canada. This is not the case for all migrant sex workers, and probably less likely for them than for Canadian sex workers because if migrants are undocumented, they often work in “underground” areas of the industry that largely escape the reach of the law.

To sum up, owing to being women of racial or ethnic minorities, and often being undocumented and working in unregulated sectors, migrant sex workers are both more vulnerable to rights violations and less able to access their rights to which the ICRMW entitles them. It does not seem that the Convention would adequately protect most MSWs. As a way forward, Piper (2005) suggests that comprehensive studies on the employment of male and female migrants are needed to determine whether problems in protecting women’s human rights as migrant workers lie in their migration status, gender, or occupational sector. Regulation of labour migration should be compared with regulation of sector of employment to see which type of regulation is more effective. In this way, it could be determined whether the government is unwilling or more unable to regulate. I would argue that in the case of migrant sex workers, all three factors, with the addition of race/ethnicity, affect their human rights situation, and that regulation that focuses alone on one of women, race/ethnicity, undocumented status, or occupational sector will not adequately address their needs.

PRESENT AND FUTURE RIGHTS PROTECTION STRATEGIES FOR MSWs

Suggestions for ways forward focus on further ratification of the Convention, regional cooperation, other international instruments, and/or local-level initiatives.

Despite the problems with the Migrant Worker Convention, Pecoud and de Guchteneire argue that it “remains one of the most crucial tools in improving migrants’ rights throughout the world” (2004: 22). In this vein, and in hopes of it realizing its potential, they make recommendations for fostering further ratifications of the ICRMW (ibid.).² Many of these, however, will likely continue to be plagued by allegiance to political self-interest.

For states such as Canada concerned with sovereignty, regional agreements on migration may seem less threatening. While there are migration considerations in NAFTA, perhaps the most progressive example of regional cooperation on migrant rights is the Inter-American Human Rights System, which has created its own Rapporteurship on migrant workers (Piper 2005). A recent ruling by the Inter-American Court of Human Rights clarifies that all migrants - documented and undocumented - are covered by the principles of non-discrimination, equality and equal protection in countries of destination, and must not be excluded from the protection of labour laws on the basis of their migration status (ibid.).

However, while the Convention may better protect other migrant workers, it is not clear, based on the preceding analysis, that a Canadian ratification of the Convention would adequately protect migrant sex workers. Such concern could be extended to regional agreements that do not adequately consider the particular vulnerabilities of MSWs. More research is needed into regional initiatives to examine their efficacy in protecting migrant workers and addressing gender concerns specifically (ibid.).

What else is being done? What more can be done? Research suggests a focus on other international instruments targeting women in particular, and local-level rights protection and advocacy, led by NGOs and labour unions in particular.

In order to address women’s vulnerabilities that the Convention’s does not adequately address, women-specific instruments could be applied, such as CEDAW (the Convention to Eliminate All Forms of Discrimination Against Women), as a recent position paper by Margaret Satterthwaite (2004) has suggested. In fact, Satterthwaite argues that the dominant focus on the ICRMW as the way forward for migrant rights protection may be detrimental for women because this potentially allows ratifying states to marginalize their obligations to women migrants under existing human rights treaties. Rights of women migrants are already included in a number of standards in such documents, so Satterthwaite argues that it would make more sense to focus attention and resources on the enforcement of these rather than the ICRMW.

With respect to local-level initiatives by non-state actors, the shift in recent years to treat migrant workers first and foremost as workers, regardless of their legal status, has been driven mainly by trade unions and NGOs (Piper 2005). Many authors suggest that NGOs have an important political advocacy role to play in protecting sex workers’ rights. Some NGOs are in place, especially in major cities, to provide services to sex workers - migrants included - and advocate for their rights based in labour law. Progress in this area has been hindered by the ongoing debate between feminists on the nature of sex work and human rights violations and entitlements therein, as outlined above. Piper asserts that human rights protection in the sex industry could be approached from the viewpoint of a short- or medium-term versus long-term solution in which minimum work standards could be advocated for to provide some level of immediate protection. This would also constitute a measure of regulation necessary for sex workers and NGO advocates to focus their efforts on (ibid.).

Trade unions, for their part, have been largely unwilling to engage with the protection of migrant workers’ rights. In addition to their national orientation, they tend to regard migrant workers as better off relative to nationals and therefore in no need of political attention, and they think it difficult or impossible to organize workers that labour in informal, irregular, or illegal sectors (ibid.). While the United Food and Commercial Workers Union has advocated on behalf of seasonal farm workers in Canada (UFCW 2005), migrant domestic workers and sex workers lack such a labour organization voice. Migrant sex workers may benefit from labour union involvement in the sex industry in terms of advocating for sex work to fall under labour law.

CONCLUSION

While the ICRMW “makes tremendous headway in advancing new normative standards of entitlement and protection for undocumented migrant workers” (Bosniak 1991: 765), this paper has demonstrated that its efficacy in providing rights protection to migrant sex workers in Canada is questionable. First, Canada has not signed or ratified the document, which offers little assurance that the Convention protects migrant workers of any type in Canada, let alone migrant sex workers in particular. As we have seen, reasons for non-ratification relate primarily to lack of political will, based on considerations of sovereignty and security. However, as signing the document would reflect favourably on Canada’s image and because the Convention has been mentioned in case law, I have asserted that Canada may eventually take interest in the document. Therefore, an investigation into how well it would work in the interests of the group of migrant workers arguably most vulnerable to exploitation and abuse - migrant sex workers - is warranted. This paper has attempted such a project. On paper, the Convention has the potential to prevent and/or address many kinds of rights violations that MSWs may experience. However, it fails to adequately consider the particular vulnerabilities of MSWs, owing to being primarily racialized women, and their potentially limited access to rights, given that they are often undocumented and work in a quasi-regulated sector.

It is difficult to make generalizations from the preceding analysis. This paper has focused on a particular set of migrant workers and among them, a sub-set that are most vulnerable (undocumented and unregulated). Those that need rights protection most, however, constitute an important benchmark against which to measure the potential effectiveness of international treaties. The Convention may fail against this benchmark. This is not to say that Canada should not sign, nor that the value of international human rights law in general should be doubted. Given the rights that the ICRMW lays out indiscriminately, it could serve many migrant workers in Canada who are here legally and working in regulated sectors. And international human rights law recognizes and upholds important principles that we should not back away from. While state sovereignty continues to be a salient, and perhaps the dominant, feature of the world system, nation-states, setting aside their political self-interest, have increasingly worked together to acknowledge and enshrine these universal principles. What this paper does suggest is that more work and de-politicized commitment will be needed for the most vulnerable groups of migrant workers to find adequate rights protection in the citizenship gap. This should be a focus of further research and advocacy.

 

REFERENCES

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Hune, Shirley. (1991). “Migrant Women in the Context of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.” International Migration Review 25(4): 800-17.

Latin American Coalition to End Violence Against Children (LACEV). (2002). Coming to Dance, Striving to Survive: A Study on Latin American Migrant Exotic Dancers. Toronto: Mujer.

Lacsamana, Anne. (2004). “Sex Worker or Prostituted Woman? An Examination of the Sex Work Debates in Western Feminist Theory.” In Aguilar, D. and A. Lacsamana (eds.) Women and Globalization. New York: Humanity Books, 387-402.

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Hill Maher, Kristen. (2004). “Globalized Social Reproduction: Women Migrants and the Citizenship Gap.” In Brysk, A. and G. Shafir (eds.) People Out of Place: Globalization, Human Rights and the Citizenship Gap. New York: Routledge, 131-51.

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Notes:

1. Reasons for this include lack of information about rights violations, gaps between different institutional mandates of international organizations such as the United Nations, parallel systems of protecting employment rights and human rights, relatively little reporting by human rights NGOs, and the dominance in human rights discourse of refugee protection (Piper 2005). In principle, migrants already enjoy the protection of international human rights law - such as the International Conventions on Civil and Political Rights, and Economic and Cultural rights (1966) - given that rights protection based on these instruments is not supposed to differentiate on the basis of status. [↩]
2. These include: promotion of better understandings of the Convention; campaigns in favour of rights for migrants, with an emphasis on the undocumented; capacity-building in migration policies and training local experts; involving civil society actors concerned with migration; more regional cooperation on migrant worker rights issues; encouraging Western states in particular to ratify to serve as an example for others to follow; and further assistance to countries in implementing the Convention. [↩]

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