In the past
50 years the international community has adopted several legal instruments that
recognize and promote a group of legal rights that are relevant to, and in some
cases specially targeted at, the people involved in international migration
movements. Even so, it is interesting to note that practically until the 1970s
the political rights of immigrants in their country of origin, and in
particular the rights of migrant workers, and the exercise of those rights had
no place and were given no priority either in the scholarly literature or on
the international political agenda. Up to that time no initiatives or concrete
state policies were aimed at migrant workers.
The first
important change came in the late 1970s as a result of the debate over an
initiative that arose from a renewed interest within the Council of Europe
member countries. In 1977 the member countries subscribed to the European
Convention on the Legal Status of Migrant Workers, which was the first
international legal instrument specifically to recognize the political rights
of migrant workers and their right to vote and to stand for election in their
country of origin. These rules were restricted to citizens of the Council of
Europe member countries and were conditional on the principle of reciprocity
being maintained. The convention came into force in 1983 and was to motivate
some of the countries in the region to start recognizing the political rights
of certain foreigners or migrants. Above all, the question of the political
rights of migrants began to take on more importance and become more visible on
the international political agenda and in the corresponding debate.
The
greatest achievement in this area was the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families,
adopted in December 1990 by the United Nations General Assembly. This
convention, which entered into force in July 2003, constitutes a more rigorous
effort to create an international legal instrument that is expressly directed
at migrant workers and their families and respect for their human rights.
However, it is important to underline two issues. First, the convention states
that a group of civil, economic, social and cultural rights of non-documented
migrant workers must be recognized at an international level, although the
right to vote and to stand for election is not included. Second, on the other
hand, it recognizes a series of additional rights only for migrant workers and
their families ‘who are documented or in a regular situation in the State of
employment’ (articles 35 and 41). Among these rights are those which concern
the right to participate in public matters in the country of origin, including
the right to vote and stand for election in the country of origin, but also to
exercise political rights in the country of employment if that country grants
them this right in the exercise of its sovereignty.
From the
perspective of international law and from the point of view of some host countries,
it may be relevant and even necessary to distinguish between documented or
legal migrant workers and those who do not have the proper documentation, or
illegal migrants. However, from the point of view of countries which are
interested in promoting external voting initiatives in order to benefit all
those of their citizens who are living abroad, this distinction should not
govern the conception and formal design of the external voting mechanism.
It is
important to keep in mind that these international legal instruments are aimed
at promoting the political rights of migrant workers on two qualitatively
different and even contradictory levels. They are advocating at one and the
same time the recognition of political rights by the host countries (which
is clearly not related to external voting as defined for the purpose of this
Handbook) and by the countries of origin (which clearly places the
debate in the field of external voting). While one trend aims to promote and
facilitate the process of integration of migrant workers into their new
political community, the other seeks to restore their ties with the political
community of origin. However, this dual aspect only emphasizes the ambiguity
that underlies the current issue of migrant workers’ political rights and the
vulnerability of those rights, which sometimes are neither recognized by the
host country nor protected by the country of origin.
