taking the human rights of migrants seriously: towards a decolonised global justice

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Taking the human rights of migrantsseriously: towards a decolonised globaljusticeAriadna Estévez López aa Center for Research on North America, National AutonomousUniversity of MexicoPublished online: 16 Aug 2010.

To cite this article: Ariadna Estévez López (2010) Taking the human rights of migrants seriously:towards a decolonised global justice, The International Journal of Human Rights, 14:5, 658-677,DOI: 10.1080/13642980903155695

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Taking the human rights of migrants seriously:towards a decolonised global justice

Ariadna Estevez Lopez�

Center for Research on North America, National Autonomous University of Mexico

This article proposes an epistemological decolonisation of liberal ideas of global justicewhich shifts emphasis from abstract morals to specific material aspects of individual andgroup human rights. In order to respond to the empirical needs of the contemporarySouth a decolonised global justice focuses on the human rights of a specific, ratherthan a generic, type of individual – the international migrant. More specifically, thisproposal of a decolonised global justice bases the responsibility of nations towardsdocumented and undocumented migrants on the universal material principle of ethicsand the obligations of states with respect to the life of all people in every way inaccordance with the general principles of the right to development. In order toestablish the nature of this responsibility, the article also reinterprets the rights tomovement, asylum, work and a dignified life for the formulation of rights to mobility.

Keywords: global justice; human rights; migration; epistemological decolonisation;universal material principle of ethics

Introduction

According to Mexican-Argentine philosopher Enrique Dussel many concepts have beenmonopolised by Eurocentric scholarship. In order for the perspectives of peripheralcountries to be included in this vision it is necessary for intellectuals from these countriesto dedicate themselves to the ‘decolonisation’ of epistemologies used to construct such con-cepts.1 I contend that this should be the case of liberal theories of global justice. Liberalsplace an epistemological emphasis on the abstract aspects of the universal human rightsof a generic individual and may or may not include foreign countries and their citizens.In order to comply with the international community’s obligations towards universalhuman rights, liberals prescribe international aid and the scope of this aid marks the differ-ence between diverse liberal approaches to global justice. As a scholar based in the periph-ery, in a major migrant-sending country, I propose an epistemological decolonisation ofliberal ideas of global justice which shifts the emphasis from abstract morals to specificmaterial aspects of individual and group human rights. Furthermore, in order to respondto the empirical needs of the contemporary South a decolonised global justice must alsofocus on the human rights of a specific, rather than a generic, type of individual – the inter-national migrant in general and the undocumented migrant in particular.

The emphasis on international migration is justified by the empirical centrality of thephenomenon in the South, which in the first instance results from the unbalanced

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The International Journal of Human RightsVol. 14, No. 5, September 2010, 658–677

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relationship between North and South, which nevertheless generates economic, social,political and cultural processes that involve both sending and receiving countries. Theintensification and interpenetration of the economic and social practices of globalisationhave led to increased international migration, since the transnationalisation of productionand free trade controlled by the North demands cheap labour form the South. As part ofthis process the South’s increasing internal inequalities force its own citizens to seekbetter opportunities abroad as a low-priced and disposable labour force.

Statistics demonstrate the importance of Southern migration to the North: in 2005, 34%of the 200 million migrants of the world were living in Europe; 23% in North America; 28%in Asia; 9% in Africa; just 3% in Latin America and another 3% in Oceania. Almost half ofthese migrants were women. The money sent home by these migrant workers increasedfrom US$102 billion in 1995 to US$232 billion in 2005, a third of these remittancesbeing sent to just four countries: India, China, Mexico and France.2 Although millions ofmigrants work with documents, there are also 30 to 40 million people working withoutdocuments in foreign countries.3 In the US alone there are almost 12 million undocumentedmigrants,4 and three million in Europe5. The international undocumented migrant is themost vulnerable of the different types of contemporary migrant, since they cannot enjoythe rights accompanying a regular job.

In addition, the activities of these migrants have an impact on their countries of origin,especially as the result of so-called transnational activities – those performed by migrants inorder to maintain links with their communities of origin, which are frequently supportedand promoted by governments in those countries of origin.6 Transnational activities canbe economic as well as political, social and cultural. First, economic activities in theplace of origin can take the form of financial remittances or remittances in kind, philanthro-pic donations, taxes, government actions or participation in government programmes; whilein the destination country these activities may also take the form of philanthropic donationsas well as community organisation. Remittances in particular represent one of the economicactivities that generate far-reaching transnational political and economic actions, in somecases remittances are so important for the country of origin that governments encouragebanks to give their customers the chance to open accounts in dollars.7

Second, political activities in the country of origin may be broad in their scope andinclude participation in elections, party membership and the financing of political organ-isations, social movements and civil society organisations. In the receiving country theactivities may include participation in protests and peaceful collective mobilisationsto demand the rights of the migrants or to create consciousness in the receiving societyconcerning what is happening in their countries of origin, together with political lobbyingto influence the government of the receiving country in its stance regarding the immi-grants’ country of origin.8

Third, social activities in the country of origin include visits to family or friends,social contacts, contributions to national newspapers, migrant organisations in receivingcountries send money or aid to their home towns in cases of natural disasters or in orderto fund local development NGOs. While in the destination country these activitiesinclude the membership of clubs, attendance of social events, links with other organis-ations, contributions to newspapers and participation in discussion groups.9 Finally, par-ticipation in the cultural activities of the country of origin includes the promotion ofcultural events while in the destination country migrants may promote their cultureof origin.10

As these data and information show, for the South international migration is not simplyan example of the ‘collateral damage’ of economic globalisation which needs to be dealt

The International Journal of Human Rights 659

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with through economic aid; it is an extensive ontological realm ranging from transnationalfamily relations and political activities to economic and social development projects in localcommunities. From a Southern point of view, therefore, international migration is a majorfeature of globalisation with material consequences for individuals and social groups inboth North and South.

A decolonised theory of justice would have to address both the material needs of docu-mented and undocumented migrants in receiving countries and the unequal North–Southand West–East relations that generate the poverty, war and environmental damage thatare at the root of international migration. However, it would have to shift its focus fromaid, since approaches emphasising aid fail to address the power issues within the North–South and West–East relationship. Not only that, aid has been used, given the inequalityof power relations, as a means to enforce migration controls within origin countrieswithout addressing the socioeconomic and political causes of migration and the situationof people who have already become migrants, particularly undocumented migrants.

The European Union’s migration policy offers a perfect illustration of this point. TheTampere Convention, issued by the European Council in 1999, introduced a ‘migrationconstraint’ in relations between the EU and third countries which was further defined ina series of initiatives. In particular, in 2002 the EU agreed to systematically evaluatelinks with countries failing to cooperate in the control of ‘illegal migration’, conditioningaid to third countries on their acceptance of such activities as the interception of vesselstransporting undocumented migrants and the readmission of undocumented immigrants.In 2004, the Hague Programme (the policy follow-up to the Tampere Convention)defined the ‘external dimension of asylum and migration’ and suggested specific policiesfor establishing partnerships with third countries, regions generating migration, andcountries and regions serving as transit for migrants, as well as agreements for theirreturn and repatriation.

The Hague Programme indicated that partnerships should be based on assistance, theuse of community funds, the management of migration flows, the protection of refugees,the prevention and combating of illegal migration, information concerning legal channelsof migration, the resolution of situations involving refugees, the building of capacitiesfor border control, the strengthening of security for migration documents and a focus onthe problem of deportation and repatriation.11 It also calls for the establishment of policieslinking migration to cooperation for development, as these policies address the ‘roots’ ofmigration by dealing with poverty. Partenariats linked to cooperation for development,and which serve as the basis for so-called ‘co-development’, are in reality ‘an instrumentfor applying delocalization and for transferring to countries of origin migration policiesfocused on the fight against illegal migration. Or in fact cooperation programmes . . . forestablishing complementary and specific assistance with third countries in order tosupport their efforts to improve the control of migration flows.’12

International migration and the human rights of people who are already migrants, ratherthan aid programmes designed to prevent migration, will therefore be central to the notionof decolonised global justice developed in this article. I will consequently first offer acritical discussion of liberal ideas of global justice, especially those taking into accountinternational migration, in order to establish the ideas informing a decolonised notion ofglobal justice as well as its principal differences from competing liberal theories. Next, Iwill discuss how Dussel’s universal material principle of ethics and the general principlesof the right to development contribute to the argument developed here. Finally, I willpresent an examination of those rights that should be considered an entitlement in adecolonised global justice, including the rights of mobility.

660 A. Estevez Lopez

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Liberal theories of global justice: a critical discussion

Liberal approaches to global justice can be divided into three groups: cosmopolitanproposals, nationalist liberal proposals and neo-Kantian proposals concerned with ethnicminorities, including foreign immigrants.

In the first place, cosmopolitan proposals are based on the idea that all human beingsbelong to the same collectivity and should be treated as equals independently of theirnationality, language or religion.13 This is explained by the fact that, according to the cos-mopolitan vision of justice, all individuals belong to the some moral collective and thisgenerates obligations. At the international level contemporary cosmopolitanism does notnecessarily advocate the elimination of nationalisms and the creation of a world state14

as older versions of cosmopolitism did, but it does call for global governance. Thedistinctive characteristics of cosmopolitanism are individualism, universal equality, andthe generality of application.15 The first characteristic means that for cosmopolitans it isindividuals, rather than collectives, who are the fundamental moral concern; collectivesmay be the object of indirect concern insofar as their members are, in the final analysis,individuals.16 Universal equality essentially means that all individuals should receive thesame treatment. As regards the third characteristic, people in general, and not only compa-triots and those sharing a similar form of membership, should be the object of moralconcern.17

There are two basic forms of cosmopolitanism: the moral and the politico-legal.18 Onthe one hand, moral cosmopolitanism establishes that all people form moral relationshipsand demands that every individual respect the moral condition of others. According toPogge this moral concern can adopt many forms, such as concerns with subjective goodand evil (human happiness, the satisfaction of desires, preferences or the avoidance ofpain) or for a more objective good (abilities, opportunities, resources or the meeting ofhuman needs).19 M. Nussbaum, who is classified as a moral cosmopolitan, proposes acosmopolitan education that would help people in the United States form a collectivemore aware of the needs of the rest of the world.20

On the other hand, politico-legal cosmopolitanism is interested in the universal appli-cation of international human rights legislation – in the words of Beitz, human rights areuniversal due to their form of application and because they can be claimed by anyone.21

There are two types of politico-legal cosmopolitism: interactional cosmopolitism and insti-tutional cosmopolitism. Interactional cosmopolitanism advocates the creation of linksbetween human collectives by means of a league of nations.22 Pogge claims that this inter-actional cosmopolitanism proposes certain fundamental ‘ethical principles’ that, just likebasic institutional norms, are first-order principles in the sense that they apply directly tothe conduct of persons and groups.23 In the work of Beitz, interactional cosmopolitanismconsiders human rights an appropriate doctrine for contemporary international practiceand identifies three fundamental roles these rights should play. The first is to restrict thenational constitutions of states and the fundamental regulations of organisations and inter-national regimes. The second is to establish goals for social development. The third is toestablish the basis for a political criticism that can be appealed to at global politicalforums. In this sense the doctrine of human rights is ‘significantly teleological’.24

Institutional cosmopolitanism, on the other hand, of which Pogge is an exponent,locates the moral responsibility towards individuals in institutional schema. With respectto human rights, this version of cosmopolitanism suggests that the global moral force ofthese rights can be activated only by the emergence of a global institutional order thatcan generate the obligation to promote any feasible reforms to this order and thereby


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improve the degree of compliance with human rights. Given that there exist a plurality ofindependent cultures the responsibility for not respecting human rights extends beyond theborders of each culture. Furthermore, since globalisation presents us with a single globalinstitutional order informed by the territorial state, a legal system and international diplo-macy as well as a global economic system of property rights and markets for capital andgoods and services, the universal human rights doctrine is the responsibility of all.25

Both Beitz and Pogge propose, unlike nationalist liberals, that the responsibility ofwealthy nations to poorer nations should move beyond the duty of assistance proposedby Rawls in The Law of Peoples.26 Pogge argues that there are three causes of economicinjustice at the global level: the effects of shared social institutions, exclusion from theuse of natural resources without compensation, and the cumulative effects of exploitationoriginating from the process of colonisation. This situation obliges wealthy nations notto reverse inequality but to establish a Global Resources Dividend, which is not a callfor a global state but a way to institutionalise the international community’s commitmentto share a part of the value of any resources they exploit as a consequence of such inequal-ity. This dividend would be used to guarantee that all human beings satisfy their basic needswith dignity.27

I agree with Benhabib that such a form of distributive justice is unviable. AlthoughBenhabib shares the cosmopolitan ideals of Beitz and Pogge, in addition to criticisingtheir failure to take into account the limitations imposed on cosmopolitanism by the protec-tion of national borders in the face of foreign immigration, she differs with them on the ideaof distributive justice, for three reasons. The first is that, in a similar vein to the oppositionof Rawls to any responsibility beyond the duty to assist, it is impossible to determinethe degree to which each nation should contribute to this common fund. The second isthe undesirability, or impossibility, of establishing global standards. Proponents of thisapproach suggest the set up of an institutional framework in change of administratingglobal resources. A major critique of this approach is that such a framework would notbe democratic.28

While sharing Benhabib’s concerns, I would add that such a form of distributive justiceis farcical, since in a way it justifies the continuation of an exploitative system throughfailing to demand changes in the world status quo. Furthermore, it is limited to suggestionsof addressing examples of world economic inequality through a fund that could be used totransfer the migration controls of wealthy countries to countries of origin, in much the sameway as aid for cooperation has been used. Nevertheless, unlike nationalist liberalism, cos-mopolitanism establishes the basic requirements to justify the need for a theory or vision ofglobal justice that overcomes the limits of sovereignty and the differences in responsibilitiestowards individuals established by such sovereignty.

In the second place, in response to the ‘pragmatic’ proposal of a cosmopolitan utopia wefind nationalist liberal proposals. These are the most conservative in terms of the scope andgenerosity of global justice and have been developed by Rawls in The Law of Peoples andby followers such as Mandle.29 According to Beitz, this work by Rawls represents the mostsuccessful attempt to devise an international theory since social liberalism and the mostcomplete international approach Rawls has offered thus far.30 In The Law of Peoples,Rawls speaks of peoples in order to avoid speaking of states and consequently the realistconnotation that the concept ‘state’ obviously implies. In a more detailed way he speaksof peoples in order not to commit the sovereign state of realism to respect for internationalhuman rights obligations. Similarly, when speaking of peoples Rawls establishes that theunit of analysis is not the individual, as is the case for cosmopolitans, but society as awhole (a people). The fundamental idea expressed in the book is that the law of peoples


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is what should determine the foreign policy of liberal nations and decent peoples, that is,those nations that, without being liberal, share similar values to liberal nations such asthe idea of justice related to the common good and a commitment to non-aggression.Liberal peoples are governed by a constitution and enjoy a number of freedoms andbasic rights that are not necessarily the commitments made by a decent people.31

The law of peoples is based on eight basic principles: the freedom and independence ofpeoples, non-intervention, respect for international treaties, equality in binding agreements,the right to self-defence but not to aggression, respect for human rights, adherence to restric-tions in states of war, and the duty to assist less-wealthy peoples that aspire to have liberalregimes.32 Beitz maintains that the principle of respect for human rights and the duty toassist others are new themes in Rawls’ internationalist discussion and bring him closer tothe cosmopolitan moralism of basing global justice on human rights and duty towardsothers.33 However, Rawls’ proposal clearly establishes that in the law of peoples eachpeople is free to privilege their own members, and their duty towards other peoples doesnot have to involve anything more than the offering of assistance. The basis of this is theidea, contrary to cosmopolitan visions, that it is not possible to establish a global govern-ment, since individuals identify with and obey laws according to their national membershipand loyalty. The response to this vision of global justice is the building of decent peoplesfrom within on the basis of these loyalties in order to establish a community of liberal anddecent peoples. Those that have already achieved this status are duty bound to help othersbut not to cooperate with a global fund, as this would impose an unfair burden on peoples.34

Mandle shares the nationalist vision of Rawls but bases his ideas on a cosmopolitan mor-alism of duty towards justice. Mandle maintains that a series of human rights exist that areuniversal in the cosmopolitan sense, that is, everyone is entitled to enjoy these rights andwe all have a duty to respect them.35 Human rights generate obligations that are universallyapplicable but with their relative force dependant on the people involved. The emphasis hereis placed on the political institutions required to enforce these human rights universally andon the differentiation these rights should establish between citizens and foreigners. In thissense Mandle’s proposal departs from those of cosmopolitans and moves closer to that ofRawls, as it recognises that justice demands different things for these two types of subjects.36

It is therefore clear that liberal nationalism has serious limitations for a theory of globaljustice that takes into account migration, for although it avoids a commitment to realist cat-egories it does obey the logic of nationalist sovereignty with respect to the scope of globaljustice. Worse still, says Benhabib, the insistence on using a closed society as a point ofdeparture for formulating global justice proposals means that migration does not representan essential element of these visions. Rawls makes this point explicit when stating that inthe law of peoples each people is free to privilege their own members (which excludesundocumented migrants and by implication foreign residents). Rawls argues that the inter-national community’s duty towards less wealthy countries cannot go beyond voluntary aid.I contend that this kind of assistance is not enough, and does not help to stop economicmigration because wealthy countries demand that this aid goes to border control and notnecessarily to development.

It should be added that while these kinds of liberal approach are influential due to theiroffering a supposedly more realistic political option than the utopian ideals of cosmopoli-tanism, they are pragmatic in relation to the politically possible, that is, they are essentiallyconservative, since they fail to establish a normative horizon that would regulate two realand existing situations. Firstly, there is the irreversibility of international migration forseveral reasons, including unjust regulations imposed by the global political economywhich cannot exclusively be corrected ‘from within’. And, secondly, the exclusion of


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immigrant populations is leading to conflictive scenarios that can place at risk the stabilityof the ‘society of peoples’.37

In the third place, there are less general approaches to the problem that demonstratemore concern for migration and/or culture as an object of global justice, such as neo-Kantian approaches. To date the most complete and therefore influential of these hasbeen that offered by Benhabib, who uses Immanuel Kant’s right to hospitality as thebasis for proposing an idea of global justice that makes migration a fundamental elementthat is not subsumed by an excessively broad conceptualisation.38 Benhabib reintroducesthe idea of hospitality developed in the Third Definitive Article on the Conditions for Per-petual Peace, in particular ‘The Rights of Man as a World Citizen in a Cosmopolitan Systemthat Restricts the Conditions for Universal Hospitality’. In this text Kant maintains that allmen (sic) enjoy the right to not be treated as an enemy when they visit a foreign land. To theextent that they behave peacefully they should not be met with hostility, as all men have theright to visit other places due to their ‘joint possession of the face of the Earth’.39

Benhabib correctly asserts that Kant’s right to hospitality occupies the middle groundbetween human rights and civil rights, as it regulates relations between individuals belong-ing to a specific civic entity and those from another entity. A vision such as this can there-fore help in the building of notions of political membership that are sufficient for a theory ofglobal justice that explicitly, rather than tacitly, includes immigrants. In her view the reasonwhy international migration should be central to any theory of global justice is that relatedmatters of law and public policy have become central to relations between states.40

Benhabib insists that any idea for the building of a post-Westphalian system is con-demned to failure if international migration controls are not questioned. From a philosophi-cal perspective, she says, this phenomenon highlights the constitutional dilemma at theheart of liberal democracies, which is the protection of sovereignty while respecting univer-sal human rights. Unlike Pogge and Beitz, but with less conservatism than Rawls andMandle, Benhabib proposes an approach targeting domestic or national institutionsrather than international global ones. That is, Benhabib does not propose a system ofglobal justice or world citizenship, since she believes it is important to respect civic tra-ditions while striving to meet the objectives of cosmopolitan justice. For this reason empha-sis should not be placed on fair distribution and the assigning of rights but on the question ofpolitical membership and democracy in a specific civic entity.41

For Benhabib a political membership that resolves the dilemma between sovereigntyand the enjoyment of human rights in theories of global justice should propose a fairmembership that recognises the moral demand of refugees for immediate admission andthe right of all individuals to enjoy rights because they are legal persons independentlyof their citizenship, since being a foreigner should not deprive anyone of their fundamentalrights. Inspired by the cosmopolitan moralism of Kant, Benhabib theoretically resolves theproblem of fair membership as the basis for global justice with the theory of communicativeaction and the ethics of discourse discussed by Habermas.42

Based on the understanding that only those normative frameworks discussed and agreedupon are valid, Benhabib develops the idea of ‘democratic iterations’ to demonstrate howthe commitments of international legislation can be mediated by the will of democraticmajorities. Democratic iterations are complex processes of deliberation and public discus-sion whereby universal human rights are contextualised and debated as part of democraticdeliberations. The proposed political membership consists of the internal legitimation ofuniversal rights through internal democratic deliberation.43

Although Benhabib trusts the ethics of discourse to guarantee the participation of thedifferent parties involved in the discussion on the right of migrants to enjoy rights, a


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vision such as this assumes that spaces exist for the political representation of these parties,whereas in many cases the rights agenda is designed precisely to create such spaces. As therealities of both documented and undocumented migrants in the United States show, lack ofpolitical representation and access to political rights prevents them from includingtheir interests in the larger political agenda. Furthermore, empirical studies show that aconsiderable percentage of migrants are undocumented or have no access to citizenshipand consequently cannot participate in institutional democratic processes.44 Consequently,Benhabib’s moral abstraction excludes a considerable proportion of contemporarymigrants.

Furthermore, the abstraction of Kantian moralism in Benhabib’s proposal, emphasisedby her trust in Habermas’ ideal deliberation, does not fully take into account the materialityof subjects and the structural conditions governing the way this previously identified con-stitutive relationship is formed. It is also necessary for a theory of global justice to establishpolitical-legal obligations – and not only the moral obligations described by cosmopolitans –for states, both internally and externally, in relation to the material conditions of immigrantsand the conditions that potentialise their agency to negotiate their well-being and theirpolitical, civil, cultural, social and economic situation.

To sum up briefly, of all existing liberal theories of global justice liberal nationalism isthe least appropriate in this context given its nationalistic view of the individual whichessentially excludes many of the features of contemporary migration. For their part, cosmo-politan visions offer an appropriate starting point for discussions of a decolonised idea ofglobal justice due to their concern for the individual, in particular the vision of Benhabibwho focuses on migrants as the most appropriate class of subject for establishing an ideaof justice that transcends borders. I agree with Benhabib, Pogge and Beitz that it is necess-ary for human rights to be universally demandable – not arbitrarily applicable and even lessby means of force – but like Benhabib I believe it is necessary to consider the internaldimension.

Nevertheless, my view departs from cosmopolitism and neo-Kantian approaches whenit comes to the role played by moral abstraction and economic aid as means to addresseconomic equality in general and the causes of migration in particular. A decolonisedview of global justice has to move beyond abstract moralism and take into account thematerial features of contemporary migrants while considering the inequality of powerrelations between receiving wealthy countries and less wealthy countries of origin byemploying a more material-oriented view of ethics and the political concerns of the rightto development.

Towards a decolonised global justice: the universal material principle of ethics andthe right to development

The abstract, and at times essentially moral, character of cosmopolitanism does not offer anadequate ethical principal for the justification of a global justice proposal privileging themigrant as a social subject – migrants have interests and adopt different political identities,unlike the autonomous individual of liberalism – and potentialising their agency. Eventhough they are crucially concerned with poverty and deprivation, cosmopolitans focuson international aid, which not only fails to address the power issues within the North–South and West–East relationship but also fails to address the specific material experiencesof the excluded, particularly those of international migrants. Therefore, for the establish-ment of a global justice project that does not reject the cosmopolitan principle and includes


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a significant margin of contextual materiality and specificity the best option is to adoptDussel’s ‘universal material principle of ethics’.45

Dussel maintains that Western ethics are committed to a disembodied and metaphysicalhumanity even though human life is not composed of simple metaphysical satisfiers such asdignity. Modern thought established a ‘disembodied’ subjectivity ‘without drives’ and‘without materiality’ and these should be reinstated by taking into account not only ‘phys-ical subjectivity’ but also ‘carnal subjectivity as a being . . .’, that is, beyond survival interms of ‘human life’, which is more than an ontological horizon, as it serves as a criterionof practical truth to the extent that it is a source of cultural, religious, mystical, etc. construc-tion and is developed concretely in every culture.46 Dussel consequently develops a critiqueof Western ethics by departing from the abstract modern moralism of Kant and Habermas.

Dussel points out that human life is multidimensional, since it is composed of culturalvalues, biological factors, material factors, etc., and each of these implies diverse obli-gations, from the economic to the cultural. Whoever acts ethically must satisfy theseneeds and consider the materiality of human life, taking into account such things aswork and housing, but also the agency of people to administrate their own well-beingwhether in the material dimension or the cultural or political dimensions. He maintainsthat an ethics that attempts to deal with evidently factual matters such as misery and theconditions of those excluded from the global order necessarily requires the primacy of amaterial order.

In this way Dussel formulates a ‘universal material principle of ethics’ which is the‘principle of corporality as “sensitivity” that includes drives and the valorative culturalorder (hermeneutic–symbolic), all norms, structural microphysical acts, institutions orethical systems derived from the criterion of human life in general’.47 This principle isexpressed in the following way:

Those who act ethically should (as an obligation) produce, reproduce and develop, in a self-responsible way, the concrete life of every human subject in a community of life which is inevi-tably a ‘good life’ in cultural and historical terms (their means of conceiving happiness, withcertain references to values and a fundamental way of understanding being as reason-for-being,and for this reason with the pretension to rectitude as well), which can be shared in terms ofdrives and solidarity using all humanity as the final point of reference, that is, it is a normativedeclaration with a pretension to practical truth and, furthermore, with a pretension touniversality.48

Dussel admits that this universal material ethical principle could be accused of being basedon modern naturalism, but he clarifies that while this is a formal grounding the other is apractical-material grounding which is the need to live.49 The above essentially arguesthat a universal material ethical principle is applicable to all individuals independently oftheir nationality in order to satisfy the need of all people to have a ‘human life’ beyondsimple survival. In a theory of decolonised global justice, and in the specific case of inter-national migrants, the universal material principle of ethics forces recognition of the validityof the demands of migrants as subjects whose lives have been negated.

However, the universal material principle of ethics is insufficient to justify the under-mining of state sovereignty resulting from the imposition of such a critique at theinternational level, since, independently of the ethics, practical international principlescontinue to operate. For this reason international human rights normativity is essential.In particular, a ‘structural focus of human rights’ could mediate between moral formalityand the immateriality of cosmopolitanism and the lack of justification of the applicationof the principle of universal materiality, above that of state sovereignty, which allows


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states to decide who they should be concerned about and who not. The structural focus ofhuman rights seeks politico-legal and socioeconomic human rights arguments to obligeresponsibility towards the other even when this other is in their own territory. This isbased on soft law (legal principles) and does not seek to establish global institutions butrecognises the legitimacy of existing institutions to demand that nations comply with theprinciples of general rights.50

These general principles are derived from jurisprudence or comparative legal analysis (aprinciple that is so fundamental that it appears in almost all legal systems). General prin-ciples permit a court to move beyond the generally accepted regulations of internationallaw and this represents a break with legal positivism. A general legal principle differsfrom a right in that it clearly establishes rights and obligations as opposed to being formu-lated as a broad axiom. This has value because international law is seen as a normativesystem linked to compliance with common values.51

The general principles used to justify the universal material principle of ethics abovesovereignty is the human right to development, which is defined as an inalienable humanright by which every person and all peoples have the right to participate, contribute toand enjoy economic, social, cultural and political development in which all human rightsand basic freedoms are fully realised. For these purposes development is understood tobe a comprehensive economic, social, cultural and political process designed to constantlyimprove the well-being of the population and individuals on the basis of their active, freeand significant participation in the development and fair distribution of the benefits result-ing from this process.52

The Declaration on Social Progress and Development, the Universal Declaration on theEradication of Hunger and Malnutrition, the Declaration on the Right to Development andthe Millennium Declaration not only establish international cooperation; they also establishthe shared responsibility of states to guarantee the development of countries, and, in particu-lar, poor countries. This international responsibility includes but is not limited to economicassistance; more importantly, contrary to cosmopolitan approaches, it implies the establish-ment of a world economic order that guarantees human rights, peace and conservation ofthe environment and eliminates poverty and the risk of war. These responsibilities specifi-cally mention the establishment of a fair international trade regime and the control of statesover their economic and social policies without foreign intervention.53 In contrast to cosmo-politan and liberal nationalist solutions to international economic inequality – assistanceand aid – the right to development is also concerned with the inequality of power relationswithin the world system. The right to development demands more than funds to tacklepoverty; it demands that economic exchange be carried out in such a way that lesswealthy countries have the opportunity to generate a level of wealth that permits every indi-vidual’s enjoyment of individual and collective rights.

In general terms the right to development means that hegemonic powers are obliged tomaintain a minimum level of well-being, that is, to ensure that the basic requisites for sub-sistence exist in such a way that each person has the opportunity to participate fully andfreely in the system. This establishes the basis for an initial evaluation of how legal andmoral standards are defined and to evaluate the degree to which these new precepts areaccepted by states and non-state actors. The right to development, Felice asserts, isneither a simple appeal for charity nor a moral obligation to help your neighbour; it israther a call to provide every person with the same opportunity to fully participate in asystem that could prove unjust and exploitative if adequate measures are not taken. Theright to development requires those state and private actors enjoying power over othersto prevent the suffering caused by the system.54


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The right to development is becoming recognised as a general legal principle as nationallegal systems consistently affirm the principles of promoting equal opportunities andcooperation for the common good, principles that form the basis of the right to develop-ment. The obligations corresponding to this principle are consistent with their fundamentalbasis, which is the need to satisfy basic human needs, not of survival but of life in the way itis explained by Dussel. This could mean that if the global political economy prevents indi-viduals and social groups from enjoying their human rights in their homelands, othernations have a duty to provide the means for the enjoyment of human rights elsewhere.In other words, the implication of the general principle of the right to development forthe application of the universal material principle of ethics in a form of global justicethat considers migrants to be social subjects is that nations acquire obligations to peopleat both the structural and the subjective levels. Furthermore, to the extent that these inter-national obligations are not met, the universal material principle of ethics obliges nations toattend to the needs of those who are forced to leave their countries.

To sum up briefly, through applying the universal material principle of ethics as part ofinternational obligations generated by the general principles of the right to development, adecolonised global justice establishes that states have the obligation to take measures toprevent the socioeconomic, political and environmental conditions that force people toleave their home countries, not only in terms of global economic policy (e.g. free tradeand production) but also in relation to the migrants themselves, independently of theirmigratory status, since the right to development is becoming recognised as a generallegal principle that generates macroeconomic obligations. These countries have the obli-gation to assist those deprived of their human rights – especially if this is the result oftrade policy and its collateral effects – not by providing intergovernmental assistance,but by committing to people’s decision to seek better opportunities in wealthy states ifthey see fit. To the extent that people cannot satisfy their needs in specific territories forreasons related to development, the family of nations has the obligation to extend member-ship to them. This extension implies extending the protection of universally recognisedhuman rights to them. The scope of this protection will be discussed in the following section.

Rights that should be supervised in a decolonised global justice: the pertinenceof the right to mobility

A fundamental debate in theories of global or international justice is that rights should besupervised universally, that is, through the intervention of the international community.This debate is evidently crossed by the discussion of cultural relativism,55 but for thesake of the article’s focus no attempt is made here to establish which rights are culturallyacceptable according to each political tradition but rather which can be universallyclaimed by individuals or collectivities, which in this case means international migrantsfrom any culture using a normative horizon built on the basis of the universal materialprinciple, ethics and international and contemporary human rights doctrine.

The basis of the discussion concerning universally applicable rights has in some waybeen established by Henry Shue in his seminal book Basic Rights.56 Shue establishesthat a right forms the rational basis for a justified demand of social guarantees against poss-ible threats. Basic rights generate obligations to create or preserve institutions that guaranteethe enjoyment of rights and it is these institutions and not the rights themselves that shouldbe considered universal. However, there must be a standard, a bottom line below whichnobody should be allowed to fall because such a situation would be contrary to humandignity. These are basic rights, those that provide the weakest with the opportunity to


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defend themselves from the forces that could cause them greatest harm. Basic rights are therights to safety and the rights to subsistence and they guarantee that physical safety does notinterfere in the enjoyment of other rights, which include the rights not to be killed, tortured,raped or subjected to any form of aggression. The second group provides minimumeconomic security and includes the rights to water and a clean environment; adequatefood, shelter and clothing; and a minimum of preventative medicine. These rights automati-cally lead to obligations on the part of states and Shue classifies these in three groups: theobligation to avoid deprivation; the obligation to protect people from the deprivation oftheir rights; and the obligation to assist those who have been deprived of their rights.57

Of equal weight is the proposal offered by Rawls, who has spoken of human rightsproper as those established in liberal democracies but not only in these democracies,since they are also present in decent peoples. Rawls defines these rights – from whichhe excludes liberal freedoms – as those that when violated justify the intervention ofliberal peoples.58 These are: the right to life, which includes measures to guarantee subsis-tence and safety; the right to freedom, which establishes freedom of conscience andfreedom from slavery and forced occupation; the right to own personal property; theright to formal equality (before the law); and the right to consultation.

For his part, Talbott believes that the definition offered by Rawls is limited and makeshis own list after defining universal rights as those guarantees necessary for individualautonomy given that the fundamental idea behind the notion of human rights is that theyguarantee access to all that is necessary for decision-making within a specific normativeframework. The universal human rights on Talbott’s list are the rights to: physical safetyand subsistence, education, freedom (of thought, expression, association and the press),autonomy from paternalistic interference, and political freedom (democratic and legal).59

From a cosmopolitan perspective there are those who have criticised these visions of theuniversality of minimum rights, whether in relation to obligations60 or to their scope.61

Pogge, for example, criticises the idea that human rights do not generate an obligationbeyond providing assistance given that wealthy nations are responsible for the institutionalagreements that generate and maintain a status quo.62 He believes that this generates theobligation to establish funds for a distributive justice. For his part Beitz believes it isunnecessary to draw up a list of minimum rights when a much longer and more completelist already exists, legitimated in international law, that also establishes institutions andobligations.63

I agree with Beitz that it is unnecessary to draw up a list of minimum rights or a reducedlist of universally claimable human rights when this list has already been drawn up on thebasis of the normative work of the United Nations. At the same time, I agree with Pogge thatobligations with respect to rights should extend beyond simple assistance. As discussed inthe previous section, international human rights legislation establishes general principlesthat demand more than simply providing help and also more than the application of adistributive justice via global funds; these rights should also establish the terms of theglobal political economy. As previously mentioned, international legislation obliges theinternational community to establish regulations for a fairer economic policy and tothe extent that this does not happen they are forced to extend universal human rights toindividuals who have had to abandon their countries and establish themselves in wealthiernations due to the operation of unjust economic regulations that lead to poverty, wars andnatural disasters.

But this is not all, for in order to deal with these problems it is necessary to positivise theprocesses used by social subjects to demand human rights on the basis of their struggles ininternational legislation. In the particular case of migrants their needs should be recognised


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by obeying the historical logic of the legitimation of new rights in the way proposed byDussel.64 Reflecting on human rights, and using the limits of the nation state as hisbasis, Dussel states that within the political system of a given country the ‘current legalsystem’ serves the specific purpose of establishing the formal reference or institutionalisa-tion of duties and rights that should be respected by all members of a political communityinsofar as this is sovereign.65 The problem arises when certain citizens are excluded,although not necessarily intentionally, from the exercising of new rights that the currentlegal system does not yet include:

These citizens who are conscious of being the subjects of new laws see themselves as victims,inevitably suffering the negative effects of the body of law or political actions that are not inten-tional in the best of cases . . . The victims of a ‘current legal system’ are those ‘without rights’(or those who are yet to enjoy institutionalized, recognized and legally valid rights). This istherefore the dialectic of a political community with a ‘rule of law’ for many emerginggroups without rights, victims of the current economic, cultural, military, etc., systems.66

For this reason, for Dussel there can be no list of rights a priori in the way proposed in nat-uralist doctrine; for him it is evident that the way the legal system and individuals interact ishistorical and there can be no rights that exist prior to someone demanding respect for acertain right in a specific and previously non-existent context, ‘material negativity(misery, pain, humiliation, violence suffered, etc.) appears to the person “without rights”as a “black hole” within the “legal system”’.67 In the strictest sense the:

‘rule of law’ is a historical condition and the . . . evolutionary medium of history, which is man-ifested as the growing global legal tradition of a political community that enjoys the macro-institutionality of the State. Those ‘without-rights-yet’, when they struggle for the recognitionof a new right, represent the creator–historical moment, the innovators of the body of thehuman right. In this way we avoid falling into the trap of the dogmatism of natural rights (anow unacceptable metaphysical foundationalist solution), but neither do we resort to relativism(all rights are valid for having been imposed by the force of a specific period), or mere contin-gency (there are no universal principles), but use a non-functionalist universalism that demon-strates that the ‘new’ rights are those demanded universally (whether by a culture or allhumanity according to the corresponding degree of historical consciousness) of the politicalcommunity in its current state of evolution and historical growth.68

This reflection on those ‘without rights’, on victims of the ‘current rule of law’ in a specificnational system, can be applied to the discussion concerning the relevance of extendinghuman rights to international migrants at the national level within a system of globaljustice, since these are people ‘without rights’ as a result of the still inconclusive constitu-tive relationship between globalisation and migration; that is to say, there has yet to be atransformation of the way in which the current legal system is conceived, whether at thelocal or the regional and global levels, and this system has yet to include contemporarysocial phenomena such as international migration. The human rights that should be recog-nised for international migrants from a perspective of decolonised global justice are thoserelated to the mobility of people in globalisation, such as the right to emigrate and immi-grate in search of a dignified life and the right to work, with the accompanying socialbenefits.

The idea of mobility rights is hardly new. Building on a ‘migration without bordersscenario’, Pecoud and De Gutchteneire draw attention to the human costs of migration con-trols and suggest a reinterpretation of the Universal Declaration of Human Rights (UDHR)in order to formulate a right to mobility.69 They point out that Article 13 of the UDHR


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establishes everyone’s right to leave and return to one’s own country’ (right to emigrate),and Article 14 establishes everyone’s right to seek refuge and asylum (right to immigratein case of political persecution). The authors claim that both rights were recognised andinterpreted at that time in the light of the political aftermath of the Second World Warwhich was marked by the Holocaust and the Cold War. Today, they continue, theserights would have to be reinterpreted in the light of the socioeconomic, economic, environ-mental and political consequences of globalisation. This reinterpretation would necessarilylead to the formulation of a right to mobility. In that sense, reinterpretation of the right tomigrate is based on the universal validity of labour rights, including the right to choose ajob and the right to a decent standard of living, all of them established in the InternationalBill of Rights (Articles 23 and 25 of the UDHR; and 6, 7, 8 and 11 of the InternationalCovenant of Economic, Social and Cultural Rights).70

Building on this idea, I argue that an interpretation of these articles calls for the recog-nition of several (not only one) rights of mobility. Having the right to emigrate and immi-grate today also demands recognition of adjacent rights acknowledging transnationalactivity, encouraging the agency of migrants, guaranteeing the basic conditions for adecent life and nurturing respectful multiculturalism in the receiving country. Cosmopoli-tan, liberal nationalist and neo-Kantian views of global justice may endorse these rights formigrants, but only for documented migrants – those who are working with a permit, arelong-time residents or whose parents are long-time residents. It is clear in these views –especially in Rawlsian and Kantian approaches – that undocumented migrants are notentitled to rights beyond humanitarian concerns, such as emergency health and personalsafety. It is fundamental in a theory of decolonised global justice that undocumentedmigrants are recognised as having rights beyond a humanitarian level, since millions ofundocumented migrants are systematically abused in receiving countries and are preventedfrom enjoying the benefits that justify their transnational lifestyle in the first place (remit-tances and the search of better opportunities for their families).

The numerous cases of the abuse experienced by migrants who lack valid papers indi-cate which rights are crucial for their own protection. In Europe, for example, undocumen-ted workers work long hours in dangerous and unhealthy conditions and many of them aredenied wages or are paid less than the agreed rate. They can be sacked without notice and incase of an accident they are unable to claim medical insurance because they cannot provideofficial proof of their job. Also, if they are suddenly deported they cannot claim their wages.Undocumented migrants rarely complain about these situations because they need the jobdesperately and fear being sacked. In some European countries undocumented migrantshave all the labour rights of citizens, but ‘illegality’ still prevents them from claimingtheir rights. Evidently it is the universal validity of the right to work itself which shouldbe recognised in the first place.71

Undocumented workers also need social rights related to work, as the case of 33-year-old Bolivian migrant Franns Rilles Melgar shows. Melgar lost his left arm in May 2009while operating a machine in a bakery in Real de Gandia, Valencia, Spain. The employeradvised him not to tell medical staff that he lost the limb in a work-related accidentbecause the employer did not provide insurance. Furthermore, the employer, who paidundocumented workers E23 for a 12-hour shift, threw the worker’s arm in a bin so thathe, the employer, could not be connected to the accident, thus leaving the young Bolivianunable to have the limb surgically reattached.

Another crucial issue for undocumented migrants is the right to have their savings andremittances protected. For instance, in 2007 the state government of Arizona in the UnitedStates seized the remittances of Mexican migrants sent through the firm Western Union,


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arguing that this money was used in Mexico to pay smugglers. Western Union appealed thedecision but the migrants could do little to recover their money, and money is the principalmotive for their abandonment of their countries of origin.

Housing is another sphere of abuse for undocumented migrants. For example, in 2005,the police department of the town of Farmingville, Long Island, in the United States, startedto expel undocumented migrants living in overcrowded homes, claiming it was for reasonsof health and safety. Up to this point the authorities had evicted people from at least sixhomes, leaving more than 100 men homeless. Defenders of immigrants say these peoplewere evicted without prior notice and that some of them consider the actions to be anexample of ‘ethnic cleansing’. It was estimated there were 150 houses in the area thatprovided shelter for hundreds of alleged undocumented workers, although some hadbeen evicted by landlords who feared fines for providing them with housing.

The human rights of children are another crucial area. In Europe, for example, the chil-dren of undocumented migrants are frequently forced to declare their parents’ legal status orare segregated in highly deprived or special needs schools. If they are detained together withtheir parents in temporary detention centres, children have no access to education at all.72

Protection against racism and xenophobia is also fundamental given the recurrent attackson migrants. For instance, in December 2005, in Cronulla (Sydney, Australia), a group of5000 people staged a protest against the allegedly criminal conduct of young people fromthe Middle East living in Sydney suburbs. The group was protesting against the murder oftwo white lifeguards by Lebanese youths. The violence began when protestors chased aman of ‘Arabic appearance’ before cornering him in a hotel while two youths of similarappearance were beaten on a train. More recently, in June 2009, a group of Romanian migrantshad to hide in a church in Belfast, Northern Ireland, because locals attacked their homes.

Recognition of mobility rights for undocumented migrants, based on universal humanrights doctrine, should prevent situations such as those described above, in particular rec-ognition of the right to work and rights linked to the right to work (health, social security,access to decent housing, etc.), general economic rights (savings, money transfer, property,etc.), family rights (reunification, children’s rights, etc.) and freedom and protection fromdiscrimination and racism. Mobility rights could be analytically separated (all humanrights are interdependent and inseparable) into four categories as shown in Table 1.

Mobility rights do not necessarily mean national citizenship rights – for instance,voting in federal elections or immediate unemployment benefits could be excluded. Mobi-lity rights should include rights accompanying the universal validity of the right to workand the right to leave one’s own country in order to guarantee the universal material prin-ciple of ethics as well as migrants’ advocacy of their social and cultural rights, and those oftheir families, in a receiving country. These rights are enshrined in the International Bill ofRights (UDHR, and the International Covenants on Economic, Social and Cultural Rights,and Civil and Political Rights) and the United Nations’ Core Covenants: the InternationalConvention on the Elimination of All Forms of Racial Discrimination, the Convention onthe Elimination of All Forms of Discrimination Against Women, the Convention AgainstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Conventionon the Rights of the Child, and the International Convention on the Protection of the Rightsof All Migrant Workers and Members of Their Families.

While it is partly true that these mobility rights are summarised in the Migrants Conven-tion,73 it has to be pointed out that this Covenant is restrictive of the rights of mobility in thesense suggested by Pecoud and De Guchteneire, since it points out that by recognising thehuman rights of undocumented immigrants the UN is suggesting neither a right to migratenor a state’s duty to regularise the migration status of undocumented migrants (Article 35).


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Table 1. Mobility rights.

Rights for transnational activity Basic rights for a decent life Rights for respectful multiculturalismRights encouraging migrants’ political

agency

Right to migrate/immigrate Basic social rights for humandevelopment (food, education, health)

To preserve one’s mother tongue andculture

Freedom of peaceful association andreunion

Universal validity of the right to work Labour rights (to be protected fromexploitation, slavery, arbitrarydismissal, to join trade unions andstrike, work-related social securityi.e. retirement, work-relatedaccidents, etc.

Freedom of belief and conscience Freedom of expression as long as longas peace and respect for the libertiesand rights of others are guaranteed

Children’s rights to a family and tolive free of violence

Right to individual and collectiveproperty

Freedom of choice concerning theteaching of children one’s mothertongue and religion

Right to participation and consultationin economic, social and localpolitical organizations

Rights to a fair trial and to legalequality (interpreters and equality inrelation to national citizens)

Right to decent housing Freedom of peaceful association forreligious purposes (as long as itdoes not lead to violence or hate)

Right to vote for local authorities

Right to life, liberty and personalsecurity and not to be subjected totorture or other cruel treatment

Right to development Right to have an interpreter in publicservices and to use one’s mothertongue

Right to vote in country of origin

Right not to be evicted on ethnic,racial, religious or national grounds.

Right no to be discriminated againston grounds of race, nationality andethnic background; and to beprotected against discriminationand xenophobia

Right to a nationality and to changenationality

Consular rights

Economic rights (savings, moneytransference)

The

InternationalJournal

ofH

uman

Rights

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In contrast, based on the open borders scenario suggested by Pecoud and DeGutchteneire,74 I contend that as part of a decolonised global justice all migrants shouldhave mobility rights, including the right to keep and transfer one’s earnings, the right tofamily and the right to preserve one’s own culture regardless of migration status. Apartfrom the fact that none of the major receiving countries has signed it, the Migrants Conven-tion recognises these rights only in the case of documented migrants.75 Consequently,mobility rights are not those included in the Migrants Convention but an interpretationof the universal validity of the International Bill of Rights and the UN’s Core Covenantsfrom a perspective determined by the centrality of migration in the social, economic,political and cultural life of individuals in the South.

Conclusions

The theory of decolonised global justice proposed here is based on the responsibility ofnations towards documented and undocumented migrants and a critique of Westernethics and the obligations of states with respect to the life of all people in every aspect inaccordance with the general principles of the right to development. The responsibility ofstates towards migrants should not be altruistic but a responsibility that considers migrantsa constitutive part of globalisation and consequently as social agents who participate instructural transformations that also determine their lifestyles. In order to establish thenature of this responsibility it is necessary to reinterpret the rights to movement, asylum,work and a dignified life for the formulation of rights to mobility.

AcknowledgementsThe author would like to thank Tim Havard for translating this article.

Notes1. Enrique Dussel, Etica De La Liberacion En La Edad De La Globalizacion Y La Exclusion, 3rd

edn (Madrid: Trotta, 2006), 2; idem, ‘La Originalidad De La Filosofıa Latinoamericana’, paperpresented at La originalidad de la filosofıa latinoamericana, Facultad de Filosofıa y Letras, 8March 2007, Mexico City.

2. United Nations, ‘International Migration Facts and Figures. Fact Sheet’, http://www.un.org/esa/population/migration/hld/Text/Migration_factsheet.pdf (accessed January 19, 2009).

3. Centro Internacional de Apoyo y Recursos sobre Derechos Humanos de los TrabajadoresMigrantes, ‘Undocumented Migrants: Without Papers but Not without Rights’, 18 December,http://www.radio18-12.net/files/Undocumented%20Migrants.pdf (accessed January 28,2008).

4. Aaron Terrazas and Jeanne Batalova, ‘The Most up-to-Date Frequently Requested Statistics onImmigrants in the United States ’, MPI, http://www.migrationinformation.org/USFocus/display.cfm?ID¼714#top (accessed June 22, 2009).

5. Andres Fabregas Puig, ‘Las Migraciones Y La Interculturalidad En La Actualidad’, in LosNuevos Rostros De La Migracion, ed. Carlos Miranda Videgaray, Ernesto Rodrıguez Chavezand Juan Artola (Mexico City: Gobierno de Chiapas-OIM-INM, 2006).

6. Steven Vertovec, ‘The Political Importance of Diasporas’, Migration Policy Institute, http://www.migrationinformation.org/Feature/display.cfm?ID¼313 (accessed January 23, 2009),9; K. Koser, ’Refugees, Transnationalism and the State’, Journal of Ethnic and MigrationStudies 33 (2007): 233–54.

7. Vertovec, ‘The Political Importance of Diasporas’, 9; Koser, ‘Refugees, Transnationalism andthe State’.



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http://www.un.org/esa/population/migration/hld/Text/Migration_factsheet.pdf



http://www.radio18-12.net/files/Undocumented&percnt;20Migrants.pdf

http://www.radio18-12.net/files/Undocumented&percnt;20Migrants.pdf

http://www.migrationinformation.org/USFocus/display.cfm?ID=714&num;top





http://www.migrationinformation.org/Feature/display.cfm?ID=313






10. Koser, ‘Refugees, Transnationalism and the State’.11. ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’,

in JAI 559, European Council, (2004).12. Armando Garcıa Garcıa, ‘Migracion E Inclusion Social: Un Tema Pendiente’, in Mexico-Union

Europea. Asociacion Estrategica Para La Gobernabilidad Y La Inclusion Social, ed. RobertoPena Guerrero (Mexico City: UNAM-Plaza y Valdes, 2008).

13. Jon Mandle, Global Justice, Key Concepts (Cambridge, UK/Malden, MA: Polity Press, 2006),13; Ferran Requejo, ‘Justicia Cosmopolita Y Minorıas Nacionales’, Claves de Razon Practica,April 2007, 34–44.

14. Requejo, ‘Justicia Cosmopolita Y Minorıas Nacionales’.15. Thomas Pogge, La Pobreza En El Mundo Y Los Derechos Humanos, Paidos Estado Y Sociedad

96 (Barcelona: Paidos, 2005).16. Ibid., 15; Charles Beitz, ‘Human Rights as a Common Concern’, American Political Science

Review 95, no. 2 (2001): 269–82.17. Pogge, La Pobreza En El Mundo Y Los Derechos Humanos.18. Requejo. ‘Justicia Cosmopolita Y Minorıas Nacionales’; Pogge, La Pobreza En El Mundo Y Los

Derechos Humanos.19. Pogge, La Pobreza En El Mundo Y Los Derechos Humanos.20. Martha Nussbaum, ‘Patriotism and Cosmopolitanism’, Boston Review 19, no. 5 (1994), at http://

www.bostonreview.net/BR19.5/nussbaum.html (accessed July 28, 2010).21. Beitz, ‘Human Rights as a Common Concern’.22. Requejo, ‘Justicia Cosmopolita Y Minorıas Nacionales’.23. Pogge, La Pobreza En El Mundo Y Los Derechos Humanos.24. Beitz, ‘Human Rights as a Common Concern’.25. Pogge, La Pobreza En El Mundo Y Los Derechos Humanos.26. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999).27. Pogge, La Pobreza En El Mundo Y Los Derechos Humanos.28. Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge, UK: Cam-

bridge University Press, 2004).29. Jon Mandle, Global Justice, Key Concepts (Cambridge, UK/Malden, MA: Polity Press, 2006).30. Charles Beitz, ‘Rawls’s Law of Peoples’, Ethics 4, no. 110 (2000): 669–96.31. Rawls, The Law of Peoples.32. Ibid.33. Beitz, ‘Rawls’s Law of Peoples’.34. Ibid.35. Mandle, Global Justice.36. Ibid.37. Ariadna Estevez, ‘La Relacion De Estructuracion Entre La Globalizacion Y La Migracion:

Implicaciones Para Una Ciudadanıa Universal’, Foro Internacional 49, no. 3 (2009 mimeo):559–91.

38. Benhabib, The Rights of Others, 21; idem, ‘Response to Bhiku Parekh, “Finding a Proper Placefor Human Rights”’, in Displacement, Asylum, Migration: The Oxford Amnesty Lectures 2004,ed. Kate E. Tunstall (Oxford/New York: Oxford University Press, 2006).

39. Immanuel Kant, On Perpetual Peace: A Philosophical Essay (1795) The Online Library ofLiberty (accessed June 12, 2007).

40. Benhabib, ‘Response to Bhiku Parekh’.41. Benhabib, The Rights of Others.42. Habermas has himself reflected on the question of foreign immigration in Germany from the

perspective of communicative action, but his analysis remains in the area of mere reflectionwithout demonstrating the intention to theorize on the question of global justice based on thedoctrine of human rights, which he criticizes on the basis of the incompatibility betweenAsians and Westerners with respect to their ontological and epistemological bases – Asiansprefer a communitarian vision with obligations. For global justice see Jurgen Habermas ‘OnLegitimation through Human Rights’, in Global Justice and Transnational Politics: Essayson the Moral and Political Challenges of Globalization, ed. Pablo de Greiff and CiaranCronin (Cambridge, MA: MIT Press, 2002), 197–214.


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http://www.bostonreview.net/BR19.5/nussbaum.html

http://www.bostonreview.net/BR19.5/nussbaum.html

43. Benhabib, The Rights of Others.44. Xochitl Bada and Konathan Fox, eds, Invisible No More (Washington: Woodrow Wilson Inter-

national Center for Scholars, 2006).45. Dussel, Etica De La Liberacion En La Edad De La Globalizacion Y La Exclusion, 24; idem and

Juan Antonio Senent de Frutos, Hacia Una Filosofıa Polıtica Crıtica, Palimpsesto (Bilbao:Desclee de Brouwer, 2001).

46. Dussel, Etica De La Liberacion En La Edad De La Globalizacion Y La Exclusion.47. Ibid.48. Ibid.49. Dussel and Senent de Frutos, Hacia Una Filosofıa Polıtica Crıtica.50. William Felice, Taking Suffering Seriously: The Importance of Collective Human Rights

(Albany: State University of New York Press, 1996).51. Ibid.52. Office of the High Commissioner for Human Rights, ‘Declaration on the Right to Develop-

ment’, in Human Rights: A Compilation of International Instruments, vol. 1 (First Part). Uni-versal Instruments (New York/Geneva: United Nations, 2002).

53. Ibid.54. Felice, Taking Suffering Seriously.55. Relativistic visions of human rights are principally concerned with the arbitrariness of the

imposition of individualistic and secular values in countries with non-liberal political traditions,principally Muslim countries. There is extensive literature on the debate concerning culturalrelativism and human rights, and it is unnecessary to include it here given that this researchdoes not propose an analysis of which rights are culturally appropriate for migrants. Further-more, here the discussion deals with which rights currently exist and which could be claimedor revindicated for inclusion by liberal nations that already accept the doctrine of humanrights. For discussions of cultural relativism and human rights see Jack Donnelly InternationalHuman Rights, 3rd ed. (Boulder, CO: Westview, 2007).

56. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd edn (Princeton,NJ: Princeton University Press, 1996).

57. Ibid.58. Rawls, The Law of Peoples.59. W. J. Talbott, Which Rights Should Be Universal? (Oxford: Oxford University Press, 2005).60. Pogge, La Pobreza En El Mundo Y Los Derechos Humanos.61. Beitz, ‘Human Rights as a Common Concern’.62. Pogge, La Pobreza En El Mundo Y Los Derechos Humanos.63. Beitz, ‘Human Rights as a Common Concern’.64. Dussel and Senent de Frutos, Hacia Una Filosofıa Polıtica Crıtica.65. Ibid.66. Ibid.67. Ibid.68. Ibid.69. Antoine Pecoud and Paul De Guchteneire, Migration without Borders: Essays on the Free

Movement of People (Paris: UNESCO, 2007).70. Ibid.71. Platform for International Cooperation on Undocumented Migrants, ‘Joint Declaration:

Employers’ Sanctions Directive: Migrant Workers, Not Employers, Will Pay the Price ofTheir Exploitation’ (Brussels: PICUM, ENAR, SOLIDAR, EWL, 2009).

72. European Union Agency for Fundamental Rights, ‘Trends and Developments 1997–2005.Combating Ethnic and Racial Discrimination and Promoting Equality in the EuropeanUnion’ (Brussels: European Union, 2007).

73. The Convention includes many of the rights enshrined in the core instruments, particularly thefollowing rights: to life, not to be tortured, to be free from slavery and forced labour, to freedomof expression, belief and opinion (as long as one does not stir up racial, national or religioushatred or start a war), to decide on the religion of one’s children, to privacy, not to haveone’s belongings taken, to personal freedom and security, to fair and equal access to justicein a language that one understands, not to be arbitrarily detained or incarcerated, to decent treat-ment if in prison, not to be expelled for not complying with a labour contract, not to have one’smigration papers destroyed or arbitrarily confiscated, not to be subjected to group expulsion, to


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consular protection, to labour and linked labour rights (i.e. fair wages, non-discrimination,access to trade unions, social security), to emergency health services, to education and a nation-ality for one’s children, and to preserve one’s culture. See Organizacion de las Naciones Unidas,‘Convencion Internacional Sobrel la Proteccion de los Derechos de Todos los TrabajadoresMigratorios y de sus Familiares’, Oficina del Alto Comisionado de las Naciones Unidas paralos Derechos Humanos, 1990.

74. Pecoud and De Guchteneire, Migration without Borders.75. In Section IV, the Migrants Convention establishes rights that are exclusive for documented

migrants, such as the right to vote and to form community, labour and political organisations.It also recognizes the right of documented migrants to enjoy access to social security, includingequal access to housing, employment and education programmes, as well as to social and healthservices. It also recognises the rights of documented migrants to participate in the cultural life ofthe receiving country, to family protection and reunion, to the education of their children in theirmother tongue, to income transference and savings, not to be expelled if a job contract finishesas long as the visa has not expired, and to unemployment benefits (Organizacion de las NacionesUnidas ‘Convencion Internacional’).

Notes on contributorAriadna Estevez Lopez has a PhD in human rights (University of Sussex, UK), an MA in politicalsociology (City University, UK), and a first degree in journalism and mass media (National Auton-omous University of Mexico [UNAM]). Currently she works as a full-time researcher at the Centrefor Research on North America, UNAM, and tutor on the MA course in human rights and democracyat the Latin American Faculty of Social Sciences (FLACSO). Her current research interests are humanrights discourses as the basis for a universal citizenship, in the context of international migration, andthe construction of a sociopolitical theory of human rights. Recent publications: ‘La relacion deestructuracion entre la globalizacion y la migracion: implicaciones para una ciudadanıa universal’,Foro Internacional 49, no. 3 (2009); ‘A Latin American Sociopolitical Conceptualization ofHuman Rights’, Journal of Human Rights, 7 (2008); Human Rights and Free Trade in Mexico: ASociopolitical and Discursive Perspective (New York: Palgrave Macmillan, 2008).


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taking the human rights of migrants seriously: towards a decolonised global justice

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