Recent estimates suggest that, as of 2000, there were around 175
million people living temporarily or permanently outside their home
countries, which is about 3 percent of the world population and more
than double the number in 1970. Sixty percent of the world's
migrants currently reside in the more developed regions (including 56
million in Europe and 41 million in North America), where almost one in
every ten persons is a migrant.1
With
the number of refugees and asylum seekers in 2000 standing at about 12
million and 1 million, respectively,
2 the vast majority of the world's migrants are
migrant workers and their families.
While these estimates remain controversial (especially because of the
difficulties associated with estimating the number of illegal
migrants), it is clear that virtually all countries host at least some
noncitizen residents. There is also evidence suggesting that the number
of countries significantly affected by immigration has risen over the
past three decades. According to United Nations (UN) estimates, in 1965
the forty-four countries with the largest number of international
migrants accounted for 90 percent of the global stock of migrants.3
By 2000, the number of countries accounting for
that share had increased to fifty-nine.
Consequently, immigration policy—in addition to remaining
important in countries with a relatively long history of hosting
noncitizens—has recently also become important in many countries
that used to be net emigration countries and had little immigration in
the past (such as Ireland, Italy, and Spain). Much-publicized examples
of ongoing debates on labor immigration include the current discussions
about proposals for a new guest worker program for Mexican farm labor
in the United States, the recent discussions in the European Union (EU)
about when to grant citizens of the ten Accession Countries freedom of
employment within the enlarged EU, recent proposals to radically reform
Germany's policies for both permanent and temporary immigration,
and the controversies surrounding the admission and employment of
high-technology workers in practically all high-income countries.
Despite (or perhaps because of) the rising number of journalistic as
well as academic contributions, labor immigration debates remain
particularly heated, muddled, and confused. Why is this?
The most important source of this problem, we argue, is the distinct
nature of international labor migration, which, in contrast to
international trade and capital flows, involves the cross-border
movement of people, who lay claim to certain rights vis-à-vis
the host state and their fellow residents. This means that labor
immigration policymakers need to decide not only on the number and type
of noncitizens to be admitted, but also on the rights that noncitizens
are to be granted after admission. Despite the important and distinct
role of rights as a policy parameter, there is a general reluctance and
apparent inability among the participants in the debate to explicitly
state, justify, and critically discuss the ethical points of view
underlying their arguments. This inability makes it impossible to
conduct a comprehensive and balanced debate.
Given this state of affairs, the primary objective of this article is
to examine the key ethical issues in the design of labor immigration
programs and thereby provide a framework for the comprehensive
discussion of such programs. A secondary objective is to explore the
implications of this analysis of the ethical issues in labor
immigration policy for the design of labor immigration programs in
practice.
It should be noted that the present article specifically focuses on
labor immigration policy, as opposed to “humanitarian”
immigration policies that are concerned with refugees and asylum
seekers. Of course, we need to add that the very distinction between
these two categories is itself a key policy issue—as evidenced by
the frequently heard argument that we need to sort out “bogus
asylum seekers” or “disguised economic migrants” from
“genuine refugees.”
The article is divided into five main sections, which are as follows.
First, we establish the important role of migrant workers' rights
as a key policy parameter in the design of labor immigration programs.
We then discuss the consequences of international labor migration for
the migrant-receiving country, the migrant-sending country, and
migrants themselves. The third section proposes a two-dimensional
matrix of ethical space, which isolates a number of different ethical
frameworks on the basis of the degree of consequentialism they allow
and the moral standing they accord to noncitizens. Next, we explore the
implications of some of these frameworks for the design of labor
immigration policy. Finally, we discuss the implications of our
analysis for the ethical considerations necessary in the design of
labor immigration programs in practice.
In addition to providing a framework for discussing labor immigration
policies in a structured and informed manner, our article argues for
the rejection of extreme ethical frameworks and proposes criteria that
should guide national policymakers in their choice and application of a
framework within the ethical subspace of moderate consequentialism and
moderate moral standing for noncitizens. To translate these
“ethical guidelines” for the design of labor immigration
programs into policy practice, we advocate new types of temporary
foreign worker programs. In contrast to many existing and past guest
worker policies, the programs we propose would more actively promote
the interests of migrant workers and sending countries by more clearly
defining, and more effectively enforcing, certain core rights of
migrant workers.
Migrants' Bundles of Rights as a
Policy Parameter
The first step toward a sensible discourse on any policy is to
clearly and fully identify all its policy parameters. Although this
seems like an obvious statement, the existing discussion of labor
immigration policy has often been hampered by a conspicuous absence of
the acknowledgment, definition, and consideration of all relevant
policy parameters.
The great majority of contributions to the economic analysis of labor
immigration assume that the cross-border movement of labor may be
analyzed in the same way in which one analyzes the flow of capital or
goods. Policy recommendations are accordingly formulated in terms of
the quantity and the type (mainly the skill level) of foreign workers,
as determined by their perceived impact on economic efficiency and
equity in the host country. While analytically convenient, such
analysis of labor immigration misses the critical point that
cross-border movements of people are accompanied by the granting of
rights (however minimal) to the new entrants. Therefore, labor
immigration policymakers need to decide not only on the number and type
of noncitizens to be admitted, but also on the “bundles of
rights” that noncitizens are to be granted after admission.
Even the most cursory review of citizens' and noncitizens'
rights around the world suggests that the various legal categories of
each country's residents—such as illegal alien residents,
short-term alien residents, long-term alien residents, and
citizens—are entitled to distinct bundles of rights, which differ
in the number and scope of rights that they contain. For example, an
illegal migrant worker's bundle of rights usually includes only
very minimal rights, such as the most basic human rights to life and
emergency medical care. Most countries do not include the right to free
movement within the national labor market in a temporary worker's
bundle of rights, while permanent residents usually do not face such
restriction. Permanent residents generally do not have the right to
vote, which is usually reserved for citizens only. And so on.
Importantly, available bundles of rights do not only differ between
various groups of residents within countries, but also between similar
groups across countries. This is especially true for temporary foreign
workers. For example, unskilled temporary foreign workers in
Switzerland and the United States enjoy the (conditional) right to
change their status to permanent residents, while guest workers in
Kuwait and Singapore do not. To give another example, in Singapore,
unskilled temporary migrant workers (so-called nonresident foreigners)
do not have the right to marry, or cohabit with, a Singaporean citizen
or permanent resident. Female nonresident workers are also required to
undergo mandatory pregnancy tests every six months, with the threat of
immediate deportation in the case of a positive test result. These
restrictions do not apply to, say, unskilled temporary workers in
Ireland and the United States, where the birth of a child to an alien
resident (including illegal residents) gives the child the right to
citizenship.
The examples could go on, but the point we make here should be clear:
migrants' bundles of rights differ both within and across
countries and thus constitute an empirically relevant policy parameter.
Any analysis or discussion that fails to explicitly consider
migrants' bundles of rights thus fails to address a core component
of labor immigration policy. There are at least two more reasons for
explicitly including rights in the analysis of labor
immigration—the potential conflict between migrants' rights
and natives' rights, on the one hand, and the issue of national
identity on the other.
The impact of immigration on the conventional outcome parameters in
economic analysis, namely economic efficiency and equity, critically
depends on the bundles of rights which migrant workers hold. For
example, whether or not noncitizen residents hold such rights as the
right against discriminatory taxation, the right to free access to
public services (such as public hospitals and schools), the right to
unemployment benefits, and the right to free movement in the labor
market, is likely to significantly influence the impact of immigration
on national income, the fiscal balance, wage and employment outcomes
for citizen workers, and income distribution. Any analysis of the
impact of immigration on efficiency and distribution in the host
economy that fails to take migrant workers' bundles of rights into
account is, therefore, at best ambiguous and at worst misleading.
One may take the argument a step further and suggest that a
comprehensive impact analysis should also consider the effects of
extending rights to migrant workers on the rights of citizens. In other
words, citizens' bundles of rights become an additional outcome
parameter for labor immigration policymakers. There are, in principle,
three different ways in which the extension of rights to noncitizens
may affect citizens' rights.
First, conferring certain rights on noncitizens may simply infringe
upon the existing rights of citizens. For example, granting noncitizens
the right to free movement within the labor market eliminates a
citizen's right to preferential access to the national labor
market.4
Second, extending certain rights to noncitizens may (positively or
negatively) affect the value of the (corresponding or other) rights of
citizens.5
For example, it could be argued that granting
noncitizens the right to vote reduces the value of the corresponding
right of a citizen, whose vote now makes less of a difference.
Similarly, granting noncitizens the right to own certain types of
property, such as land, may adversely affect the corresponding right of
a citizen, who then needs to compete with noncitizens in the market for
land and is thus likely to have to pay a higher price. For yet another
example, extending the right to certain social security benefits, such
as free public health care, to noncitizens may adversely affect the
corresponding right of a citizen, who may then have to wait longer
before receiving medical treatment unless the capacity of the medical
system is increased. On the other hand, it has been argued that when
effective control of the border is economically and politically too
costly, legalizing illegal foreign workers is in the interest of the
citizens, because migrant workers with more rights are less likely to
undercut citizens in terms of wages and working conditions. Trade
unions in Italy, Spain, and France have thus recently undergone a
turnaround in their approach to illegal immigration and are now arguing
in favor of, rather than against, giving already-resident illegal
foreign workers more rights.
6 For a recent
discussion of this issue, see Watts
2000.
Finally, other rights, such as the right to silent prayer or the
right to privacy, may not have such features; that is, an increase in
the number of people with that right does not affect the value of, or
infringe upon, the corresponding right of citizens.7
One may argue, however, that increasing the number of
holders of the right to privacy may adversely affect another right,
namely, the right to safety. This issue has become especially relevant
since the 2001 terrorist attacks in the United States.
The second reason to explicitly incorporate rights into our analysis
of labor immigration policy is that such policy is not only driven by
considerations of economic efficiency and distribution, but also by a
concern for what may be loosely called “national identity,”
which is understood as the shared set of beliefs and values of a
country's residents.8
It also needs
to be added that considerations of national identity are often
conflated with issues of public order and national security more
generally. Again, the latter have gained in importance since the 2001
terrorist attacks.
While the importance of national identity
as a determinant of immigration policy varies from one country to
another, there are a number of countries (such as Japan and Korea) in
which the preservation of national identity (or more specifically,
cultural homogeneity) has been explicitly mentioned as a major factor
determining immigration policy. Before World War II, the United States
preferred northern European Protestants to other groups for the same
reason. Before 1972, Australia had the White Australia policy.
As we will discuss later in this article, the impact of immigration
on national identity is likely to be time- and country-specific. It is
clear, however, that the determinants of this impact include not only
the number and type of foreign workers, but also their potential for
economic, social, cultural, and political integration or assimilation.
The latter is critically influenced by the bundles of rights that
migrant workers hold. Migrant bundles that are similar to citizen
bundles may enable foreign workers (and their dependants) to integrate
more easily into the community of resident citizens. At the same time,
however, such bundles may also empower foreigners to more strongly
influence and change the nature and structure of the citizen
community.
The degree to which such integration and empowerment of resident
foreigners are desirable depends on how citizens “see
themselves,” that is, how citizens define and value the
preservation of their present collective national identity. For
example, national communities with strong cultural (including
religious) unity may view foreigners with different cultural
backgrounds as a threat to their cultural homogeneity. Similarly,
national communities with a strong preference for emphasis on
individual autonomy and freedom may consider the presence of foreigners
with less tolerant attitudes a threat to these ideals, which in their
view define their identity. Countries that strive to become more
cosmopolitan or culturally diverse, however, may well view immigration
as a means of achieving such a change of national identity (as far as
the immigrants accept such diversity).
In any case, whatever the conception of national identity, it is
clear that it is an important and empirically relevant outcome variable
in immigration policy, and that it is critically influenced by the
specific rights that migrant workers hold.
In this section, we have shown why it is necessary to take explicit
account of rights in the analysis of labor immigration. Labor
immigration programs may thus be classified according to their
mechanisms for regulating (1) the number of migrant workers admitted,
(2) the selection of migrant workers, and (3) the bundles of rights
extended to migrant workers after admission. Formulating a desirable
labor immigration policy, then, essentially involves finding desirable
values for these three policy parameters.9
Of course, the three policy parameters may, in some cases,
be interdependent. For example, some countries may find the large-scale
employment of foreign workers in their interest only if the rights of
the admitted foreign workers can be severely restricted. The employment
of foreign workers in the oil-rich Persian Gulf states is a good case
in point.
It should be noted that the underlying assumption of this perspective
is that countries are capable of controlling immigration and thus
deciding on these parameters.10
For
persuasive rebuttals of the popular argument that Western host
countries are losing control over immigration, see Freeman 1995; and Joppke
1998.
We thus assume that the presence of illegal
migrants indicates that the host country has, at least to a certain
extent, chosen to tolerate their presence.
What Are the Consequences of International
Labor Migration?
In order to identify desirable values for the three policy parameters
discussed in the previous section, labor immigration policymakers must
first assess the impacts of various (combinations of such) parameter
values on a suitably defined social objective function.
One immediate problem is that there has been no agreement on how
exactly the various outcome parameters should enter a society's
social objective function. The existing literature on the consequences
of international labor migration has thus evolved into a patchwork of
contributions on particular issues, using various methodologies, rather
than a coherent literature within a uniform framework of analysis. To
organize and discuss some of the more important contributions, it is
useful to distinguish between studies that are concerned with the
consequences of migration for nonimmigrants in the receiving country,
nonemigrants in the sending country, and migrants themselves. Table 1 lists the relevant
outcome parameters for each group, and will inform the way we organize
our discussion in the rest of the section.11
Note that, at this point, we are not concerned, and do not
make any assumption, about the receiving country's social
objective function, which may include any subset of the ten parameters
in Table 1. The weighing of parameters is
discussed in the following section.
Outcome parameters in the analysis of the consequences of
international labor migration
Consequences for the Receiving Country
Despite the recent mushrooming of studies of labor immigration, the
current understanding of the actual effects of immigration on economic
efficiency, distribution, national identity, and citizens' bundles
of rights remains rather limited.
In terms of welfare analysis, studies based on the standard,
partial-equilibrium welfare model suggest that immigration increases,
and significantly redistributes, national income from citizen workers
to capital owners. Borjas's back-of-the-envelope calculations of the
welfare effects of immigration on the U.S. economy as a whole (assuming
a one-region aggregate labor market) suggest that in the mid-1990s, the
prevailing level of immigration increased gross domestic product (GDP)
by 0.1 percent, raised capital income by 2 percent of GDP, and lowered
labor income by 1.9 percent of GDP.12
Borjas 1995. In a more recent paper, however,
Borjas argues that the efficiency gains from immigration are magnified
when estimated in the context of an economy with regional differences
in marginal product, rather than in the context of a one-region
aggregate labor market. See Borjas
2001.
On the other hand, analysis with general
equilibrium models suggests that the impact of immigration (on its
current scale) on citizen welfare and its distribution may be rather
small.
13 The general picture that emerges from empirical labor market studies
is that the impact of immigration on the labor market outcomes for
citizens is only minor, given the present scale of immigration.14
It has
been recently pointed out, however, that there is a general tendency in
these empirical studies to treat particular labor markets as closed and
to ignore the potential immigration-induced out-migration of citizens,
which would increase labor supply (and thus affect the labor market
outcomes for nonmigrants) in other regions. The immigration-migration
nexus may therefore transmit the effects of immigration away from the
immigrant destination to the final destinations of citizen
out-migrants.
15 Existing empirical studies of this nexus
have been relatively recent, have been confined to the United States,
and show conflicting results.
16 The findings of studies of the effects of immigration on the welfare
state are equally mixed. For example, according to a study by Fix and
Passel, immigrants in America pay more taxes and generate more
government revenue than they create costs.17
In
contrast, Espenshade and King provide evidence that the positive fiscal
effects of immigration may be reversed at the local government
level.
18 In their surveys of the relevant
literature, Stalker
19 and Weber and Straubhaar
20 conclude that no coherent picture emerges.
Despite (or perhaps because of) this state of the literature, there
appears to be somewhat of a “consensus” that the economic
impact of immigration is, in all likelihood, only marginal, and most
likely marginally positive.
To us, this conclusion is premature and unwarranted, given what we
know about the methodological limitations and empirical gaps in the
existing literature. For example, the critical relationship between
immigration and technical change (that is, whether the supply of cheap
immigrant labor retards labor-saving technological progress) has so
far, to the best of our knowledge, not been the subject of empirical
study and thus remains obscure. Also, there is no reason to expect that
the assumptions of general equilibrium models are met in the real
world, not even in the long run. Similarly, as illustrated by the
recent “discovery” of the potential transmission of local
labor market impacts to the national labor market, there is also no
reason to assume that existing studies have accounted for all, or even
the most important, channels of impact.21
For another good example, a recent study by Davis and
Weinstein considers the terms of trade effects between the United
States and the rest of the world (which had hitherto been largely
excluded from the analysis of labor immigration) within a Ricardian
framework to estimate that, in 1998, the combination of labor
immigration and net capital inflows cost the US $27 billion, or 0.8
percent of GDP. See Davis and Weinstein
2002.
We maintain that it would be surprising indeed if labor immigration
had only a marginal impact on the receiving economy. Instead, provided
that the number and share of foreign workers in the national labor
force are significant, the economic consequences of immigration are
more likely to be rather significant, especially when the economy is
clearly at a disequilibrium point. For example, it is clear that
foreign workers played a major role in fueling Europe's
post–World War II economic growth by holding down wages and
maintaining high rates of profit, investment, and growth.22
On the other hand,
there may also be circumstances under which immigration, in one way or
another, has significant adverse economic impacts on (at least certain
local economies of) the receiving country. For example, where migration
is “fiscally” induced by differences in social entitlement
programs, mass immigration may have severely negative effects on the
welfare recipients in the receiving country.
23 The consequences of immigration for national identity may be complex
and dependent on how citizens define their “imagined”24
On the notion of nations as “imagined
communities,” see Anderson
1983.
collective identity. Jordens discusses how, after
it had abandoned the “White Australia” policy, the increase
in non-European immigration has been a main factor in Australia's
transformation from a society that saw itself as essentially British in
culture and ethnicity to one that is beginning to define itself by its
cultural and ethnic diversity.
25 In contrast, French scholars
continue to debate why and how national cultural norms have suppressed
the emergence of diverse immigrant cultures, despite the significant
inflow of foreigners, especially from Northern Africa.
26 Finally, in light of the fact that there are very few empirical
studies on this matter, it is difficult to say anything concrete on the
impact of immigration on citizens' bundles of rights, but we
conjecture that it is likely to be much more significant than what the
meagre existing empirical research on this issue suggests.
Consequences for the Sending Country
Although research on the consequences of international labor
migration for sending countries began earlier than that on consequences
for receiving countries, the literature on sending countries is now
much smaller than that on receiving countries. Studies of the economic
effects of emigration generally focus on the production and employment
effects of emigration, the effects of remittances, and the impact on
the fiscal balance.
The empirical evidence on the output and employment effects of
emigration is mixed. Nayyar concludes that, mainly because of the small
share of emigrants in India's total labor force, the output and
employment effects of both permanent and temporary emigration from
India have been negligible.27
However, India is a special
case, as it has an oversupply of highly skilled, specialist
workers.
28 In 1987, India turned out
220,700 graduates and postgraduates in science, engineering, medicine,
and agricultural sciences, at a time when 1.2 million of its 3.8
million pool of scientifically trained people were out of work. See
Stalker 1994.
The emigration of
skilled workers (“brain drain”) from other countries with a
limited supply of such workers can have serious adverse production
impacts on the sending countries (that invested in their training and
skill). For example, between 1960 and 1987, Sub-Saharan Africa alone is
estimated to have lost about 30 percent of its highly skilled manpower,
mainly to the European Community (EC).
29 The effects of remittances have been found to be mixed—both in
theory and practice. Remittances may benefit the sending country
through, inter alia, an easing in foreign exchange constraints
and through their role as a source of capital formation. However, they
tend to be unpredictable and may be spent on luxury consumer goods,
which can increase demand, increase inflation, and push up wage
levels.30
The majority of empirical
studies find that most remittances are spent on imported consumer items and
conspicuous consumption in general.
31 A more recent review by
Taylor, however, paints a somewhat more positive picture, citing a study
which found that, because of national multiplier effects on income,
employment, and production, for every dollar sent or brought into Mexico by
migrants working abroad, Mexico's gross national product (GNP) increased
by about $2.69 to $3.17, depending on which household groups in Mexico
received the remittances.
32 Emigration also impacts the fiscal balance of the sending country, by
reducing its tax revenues. A recent study of the fiscal impact of
Indian emigration to the United States found that the net fiscal loss
associated with the U.S. Indian-born resident population ranged from
0.24 percent to 0.58 percent of Indian GDP in 2001.33
The overall economic effects of emigration on the sending country
thus appear to be ambiguous, although the evidence may be interpreted
to suggest that the emigration of unskilled labor is likely to be
beneficial (as production and fiscal effects are likely to be minor and
the benefits from remittances may be significant) while that of skilled
labor is often not. This conclusion is also supported by many sending
countries' continued efforts to convince receiving countries to
open their borders to more unskilled workers. The best examples may be
Mexican President Vincente Fox's efforts to significantly
liberalize migration flows from Mexico to the United States and the
developing countries' efforts to include the issue of
international labor migration in the agenda of the World Trade
Organization (WTO)—in particular the General Agreement on Trade
in Services (GATS).
Finally, there is little doubt that large-scale emigration (such as
that from Mexico and the Philippines) has an impact on national
identity in sending countries, mainly through imported consumer goods
purchased with remittances and through the return of emigrants who have
acquired some of the receiving country's values and habits. In
some cases, emigrants may also exert considerable influence on national
politics in their countries of origin, as suggested by the fact that
Los Angeles was an official stop during President Fox's
presidential campaign.34
It is easy to imagine that the political
influence of emigrants abroad may also affect the bundles of rights of
nonemigrants in the sending countries, although this has, to the best
of our knowledge, never been explicitly studied.
Consequences for Migrants
By revealed preference, the consequences of voluntary migration are
likely to be positive for most labor migrants. Rational and fully
informed migrants would not migrate (or would return home), if there
were no (more) net gains from moving to (or staying in) the receiving
country. The problem, of course, is that imperfect information about
employment and living conditions in the receiving countries is the
norm, rather than the exception.
It is well known that international labor migration frequently takes
place within an environment of exploitation and what is widely seen as
the violation of migrant workers' basic human rights.35
Many migrant workers,
especially unskilled workers, are accorded rights by the receiving
country that are fewer and much more narrowly defined than the rights
they enjoyed in their home countries.
It thus appears as though many migrant workers face a trade-off
between economic betterment and restrictions of their rights. The
latter often contribute to what are likely to be substantial
psychological costs of migration, associated with leaving one's
home and possibly also (temporarily) separating from one's
family.
What Consequences Should Policymakers Care
About, and for Whom?
Having discussed the consequences of international labor migration,
the multitude of outcome parameters in each group (nonimmigrants,
nonemigrants, migrants) demands that one find a way to weigh the
various parameters in the policymaker's social objective
function.36
One could argue that the
process of assigning weights to the various outcome parameters in Table 1 defines the “national
interest.” This framework for defining the national interest
would be in line with Nye, who suggests that “global interests
can be incorporated into a broad and far-sighted concept of the
national interest.” See Nye 2002,
236.
To identify and disentangle the key ethical issues in
this inherently normative exercise,
37 For
an overview of contemporary theories of political philosophy, see, for
example, Kymlicka 2002.
it is useful
to think of the assignment of weights to the outcome parameters in
Table 1 as a process that involves two steps.
For the first step, the policymaker needs to decide on the weights
assigned to the outcome parameters relevant to his/her own
(receiving) country (that is, the outcome parameters listed in the
receiving country's column in
Table 1).
To discuss the ethical bases for making this decision, it is necessary
to address the more general (and much discussed) question of what
degree of “consequentialism” should be employed in the
evaluation of alternative policy designs.
As the second step, the policymaker needs to assign weights to
outcome parameters pertaining to the sending country and the migrants
themselves (as listed in the respective columns in Table 1). The underlying ethical question concerns
the “moral standing” to be accorded to noncitizens. By
considering this second ethical question, we firmly situate ourselves
among those who allow for the possibility that ethics matter in a
country's dealings with foreigners, and in the study of
international relations more generally.38
For a discussion of the role of ethics in international
relations, see, for example, Nye 2000; and
Cohen 1984.
What Degree of Consequentialism?
An action (including policy) may be described by its
consequences (or outcomes) and by the means (or
processes) by which the consequences are generated. Accordingly, the
ethical evaluation of an action may concern itself with either
consequences or processes, or with both.
Different ethical theories disagree on the extent to which
assessments of consequences and processes should enter the overall
ethical evaluation of an action. As suggested by Figure 1, the underlying “degree of
consequentialism,” that is, the degree to which the ethical
evaluation is made in terms of outcomes (ends) rather than processes
(means), may be used to locate moral theories along a spectrum that is
bound by a minimally consequentialist position at the lower end,39
This implies that we assume that even those
arguments commonly known as “rights-based” have some
minimal concern for consequences. For a discussion of this point, see
Chang and Rowthorn 1995.
and a
strictly consequentialist position at the upper end.
40 Note that the terms “rights-based” and
“consequentialist” in this section, and the terms
“nationalism” and “cosmopolitanism” in the
following section, are simply used for linguistic convenience,
indicating the underlying degree of consequentialism (rights-based
versus consequentialist) and moral standing extended to noncitizens
(nationalism versus cosmopolitanism). Our usage of these terms does not
necessarily reflect or correspond with the meaning given to these
concepts in the broader literature.
Spectrum of consequentialism in moral theories
The theory that probably comes closest to being “minimally
consequentialist” is Robert Nozick's version of
libertarianism.41
In Nozick's world,
rights are simply “side constraints” on the actions of
individuals who may otherwise do as they wish.
42 Ibid. The idea of rights as side constraints holds that
the rights of others determine the constraints upon an
individual's actions. In Nozick's theory, an
individual's rights must not be violated for the sake of
protecting someone else's rights or some greater social
good.
The policy imperative for the “minimal
state” that Nozick advocates is thus to protect individuals'
rights by protecting all its citizens against violence, theft, and
fraud, and to ensure the enforcement of contracts.
43 It follows that policies are to be
evaluated only in terms of their consequences for individuals'
rights,
44 To avoid confusion, it is worth
spelling out that a minimally consequentialist position is
concerned with consequences, but only with consequences for
individuals' rights (as means of actions), and not so much with
consequences for the outcomes (or ends) for individuals or
communities.
with little or no regard for their consequences
for individuals' well-being or for individuals' collective
interest as a community. The main difficulty with this approach is that
there is no universal hierarchy among conflicting rights, such that the
policymaker needs to decide which rights should be given priority.
45 At the other end of the spectrum, strict consequentialism is defined
as the extreme proposition that an action is to be evaluated in terms
of its consequences alone, and therefore, that an action is permissible
if there is no alternative with “better” consequences,
however measured.46
Compare Hausman and McPherson 1993. Of course, the
operationalization of this principle requires that consequences be
defined and, if there are potentially competing objectives (such as, in
some cases, economic efficiency and income distribution), suitably
weighted.
Classical utilitarianism is an example of a strictly
consequentialist position, in which the objective of a just society is to
achieve the greatest net balance of satisfaction summed over all its
members.
47 It is implied that the
consequences justify the means of private action and public policy.
To be sure, if all ethical theories were to be situated along a
one-dimensional spectrum of consequentialism, most of them would be
found somewhere in between the two extremes. For example, it may be
plausibly argued that of the two Rawlsian principles of justice, the
“priority of liberty principle” is a nonconsequentialist
principle, while the “difference principle” is
consequentialist in nature (as it makes the consequence for the
distribution of welfare an ethically permissible standard for policy
evaluation).48
Rawls's concept of
“justice as fairness” is encapsulated in his two famous
principles of justice: (1) Each person has an equal right to a fully
adequate scheme of equal basic rights and liberties, which scheme is
compatible with a similar scheme for all (“Priority of Liberty
Principle”); and (2) Social and economic inequalities are to
satisfy two conditions: first, they must be attached to offices and
positions open to all under conditions of fair equality of opportunity;
and, second, they must be to the greatest benefit of the least
advantaged members of society (“Difference Principle”). See
Rawls 1985, 227.
Similarly, by
considering freedom as the end and primary means of development,
Amartya Sen advocates a partly consequentialist theory that “can
take note of,
inter alia, utilitarianism's interest in
human well-being, libertarianism's involvement with processes of
choice and the freedom to act and Rawlsian theory's focus on
individual liberty and on the resources needed for substantive
freedoms.”
49 The desirable degree of consequentialism in the ethical evaluation of
public policies (or moral judgment of private action) has, of course,
been a much-debated problem in moral philosophy.50
It is not our intention to take a position in this
debate, or to critically discuss some of the arguments in favor of or against
any particular degree of consequentialism. We merely want to point out that
the design of labor immigration policy, or more generally any argument on
labor immigration, is necessarily based—either explicitly or, as has
been the case more often, implicitly—on an underlying ethical
framework that is characterized by a specific degree of
consequentialism, as derived from a particular stance in the rights
versus consequences debate. The implications of the various degrees of
consequentialism for the design of labor immigration policy are
discussed in the fourth section of this article. However, we must first
discuss the second and equally important notion of “moral
standing.”
What Moral Standing for Noncitizens?
Having decided on the degree to which consequences should inform the
design of a labor immigration program, the policymaker needs to decide
for whom consequences should be taken into account. In other words,
should the policymaker only consider the consequences of immigration
for citizens, or should he or she also consider the consequences for
migrants and the nonemigrant citizens of the sending country?
Furthermore, if the policymaker takes into account the consequences for
noncitizens, should the consequences for citizens and noncitizens be
given equal weights? If not, what should determine the degree to which
the policymaker lets the consequences for noncitizens influence the
design of the labor immigration program?
The answers to these questions depend on the degree of “moral
standing” that the national policymaker accords to noncitizens.
Most discussions of immigration policy, and indeed most contributions
to moral philosophy, tacitly assume that the national policymaker
accords full moral standing to citizens only. Discussions of the moral
standing of noncitizens are scarce and frequently avoided. We argue,
however, that a comprehensive assessment of how consequences should
affect labor immigration policy must include an explicit discussion of
the moral standing of noncitizens.
As a first step in that direction, it is necessary to acknowledge
that, as with degrees of consequentialism in moral theories, there is a
spectrum of degrees of moral standing that the national policymaker may
extend to noncitizens. This spectrum is bound by small but positive
epsilon at the lower end, and 1 − ε at the upper end, as
suggested by Figure 2.
Spectrum of moral standing of noncitizens
We exclude the cases of no (or zero) moral standing and full moral
standing for noncitizens as unrealistic and untenable positions. The
former would imply that the country does not treat noncitizens as human
beings, while the second makes the concept of citizenship
meaningless.
Advocates of a minimal moral standing for noncitizens frequently
employ what Caney calls the “negative arguments from
anarchy.”51
This argument comes in
three versions, suggesting that due to (1) the absence of an
international community that defines and enforces rights and duties, or
(2) the lack of significant cooperation among nation-states, or (3) the
lack of international cooperation motivated by cosmopolitan ideals,
nation-states are under no obligation to include ethical considerations
in their dealings with foreigners. A more positive argument for
according a low moral standing to noncitizens suggests that it is a
moral duty for a nation to follow the “national interest”
(narrowly understood as the promotion of the interests of citizens
only) in its dealings with other nations.
52 In contrast, those who believe in maximal (almost full) moral
standing for noncitizens believe that there is a set of (very
comprehensive) universal rights to which everyone is entitled,
regardless of his or her citizenship status. One of the most prominent
examples of this “ethical cosmopolitanism” is the Universal
Declaration of Human Rights. It stipulates that human rights are
universal (that is, they apply everywhere), indivisible (that is,
political and civil rights cannot be separated from social and cultural
rights), and inalienable (that is, they cannot be denied to any human
being and should not be transferable or saleable).
Advocates of ethical standpoints that lie between the described
extremes of “nationalism” and “cosmopolitanism”
argue that just because certain moral principles are not completely
enforceable at the international level, or are not embraced by other
countries, a state cannot deny all ethical duties toward noncitizens.
They argue that a strict ethical cosmopolitanism (for example, the
Universal Declaration of Human Rights) is equally problematic because
it clashes with anticosmopolitan institutions, such as states, in the
real world.53
In other words, where
nation- states are the guarantors of cosmopolitan rights, there is a
natural tendency toward friction and conflict between the rights of
citizens and noncitizens. For these and many more reasons, few people
subscribe to any of the two extreme views (just as few people advocate
a strictly consequentialist or minimally consequentialist position),
but support a position of what may be called “moderate
cosmopolitanism,” which incorporates elements of both nationalism
and cosmopolitanism. For example, Beitz suggests that a moderately
strong cosmopolitan view would include the duty to pursue cosmopolitan
goals with an upper boundary on the associated cost, with the upper
boundary defining the degree of priority that a government accords to
the interests of its citizens.
54 Just as it is difficult to identify and ethically justify the
appropriate degree of consequentialism, it is no easy task to justify a
specific degree of moral standing for noncitizens.55
Again, we do not want to argue in favor of a
particular moral standing, but want to point out that the way in which
consequentialism should influence the design of a labor immigration
program critically depends on what degree of moral standing the
policymaker extends to noncitizens.
We conclude this section by summarizing the main arguments with the
help of Figure 3.56
To avoid confusion between Table
1 and Figure 3, it is worth recalling
that an ethical framework serves to assign weights to the various
outcome parameters in Table 1. There is,
however, no direct correspondence between the dimensions of Table 1 and Figure 3, as
the axes in Table 1 are not meant to capture
a spectrum of a single dimension (as in Figure
3), but are simply used to organize the list of outcome
parameters.
The figure makes clear that the role of
consequences in the design of labor immigration policy depends on the
degree of consequentialism and the degree of moral standing extended to
noncitizens. Together, they constitute an “ethical
framework” for the evaluation of labor immigration policy.
Examples of ethical frameworks (“ethical space”)
What Are the Implications for the Design of
Labor Immigration Programs?
This section discusses the implications of the four “most
extreme” ethical standpoints shown in Figure
3 (rights-based nationalism, consequentialist nationalism,
rights-based cosmopolitanism, and consequentialist cosmopolitanism) for
the design of labor immigration policy. The three key policy parameters
to consider in this exercise are the number of migrant workers to be
admitted, the selection of migrant workers, and the bundle of rights
extended to the admitted workers.
Consequentialist Nationalism
Consequentialist nationalism suggests that the desirable values of
the three policy parameters be primarily determined by an assessment of
their impact on (suitably weighted) economic efficiency, distribution,
and national identity in the receiving country.
This means that the number of foreign workers admitted is essentially
a centrally planned variable, determined by solving a maximization
problem—a procedure widely known as “manpower
planning.” The inherent problem in manpower planning is, of
course, the almost inevitable controversies and debates surrounding the
policymaker's impact studies. For example, some have suggested
that, in many cases, the alleged “need” for foreign workers
is really only a reflection of employers' preferences for cheap
labor.
With regard to the mechanism for the selection of foreign workers,
countries whose national identity is based on an ethnic concept of
nationhood (such as Germany and Israel) or that assign great importance
to cultural homogeneity (such as Japan and Korea) will choose a
selection mechanism that favors foreign workers who share some ethnic
or cultural characteristics with the citizen population (hence the
“laws of return” operative in Germany and Israel). On the
other hand, where economic efficiency and distribution are given
significant weights, selection is likely to be based on criteria such
as skill and, more generally, on the potential for making a positive
contribution to the receiving country's economy without causing
too many costs for citizen workers. In practice, most countries select
foreign workers based on a number of criteria, using—either
explicitly or implicitly—a “points” system. For
example, Canada admits “skilled migrants” who score at
least 70 out of 100 points on a test that awards points based on age,
occupation (to be carried out in Canada), education/training,
arranged employment, work experience, language ability, a demographic
factor (as set by the Canadian government), and the existence (or
otherwise) of close relatives in Canada.
Turning to the rights extended to the admitted foreign workers, an
extreme argument based on consequentialist nationalism would be that
because noncitizens are accorded only a minimal degree of moral
standing, the receiving country has no duty or mandate to recognize
even their most basic rights. In practice, such arrangements are not as
uncommon as one may think (or hope), especially in the case of foreign
workers in domestic services (maids, cooks, gardeners, and so on). For
example, in Kuwait, foreign domestic workers are not subject to any
labor law and therefore enjoy little legal protection. Another group of
migrant workers with generally small bundles of rights is illegal
migrant workers. Importantly, public opinion often demands even fewer
rights for these workers than policymakers are willing to offer.57
For example, in November 1994, Californian
voters passed Proposition 187 (also known as the “Save our State
Initiative”), which would have made undocumented immigrants
ineligible for public social services, public health services (except
for events defined as emergencies under federal law), and public
education at elementary, secondary, and postsecondary levels. In 1998,
a federal judge ruled that most aspects of Proposition 187 were
unconstitutional and it thus never came into effect.
The most difficult labor immigration policy questions based on
consequentialist nationalism concern the assignment of weights to (the
often negatively correlated) economic efficiency, distribution, and
national identity. Indeed, many countries' national immigration
debates have evolved around the perceived negative correlation between
economic efficiency (commonly articulated as the “economic need
for migrant workers”) and income distribution (commonly expressed
as the “adverse impact of immigration on competing native
workers”). It is important to recall that while an ethical
framework of consequentialist nationalism requires policies to be
derived from an analysis of the impact of labor immigration on economic
efficiency, distribution, and national identity, it is silent on the
actual distribution of weights among these three outcome parameters.
Rights-Based Nationalism
As discussed earlier in this article, the main challenge of any
rights-based approach is to decide which and whose rights should be
given priority. Thus, one may identify at least two different kinds of
rights-based nationalism, depending on whether priority is given to
native workers' rights to preferential access to the national
labor market (“worker-rights-based nationalism”) or to
native employers' rights to freedom of contract with the employees
(both citizen and noncitizen) of their choice
(“employer-rights-based nationalism”).
Under worker-rights-based nationalism, the number of foreign workers
admitted is likely to be smaller than that under consequentialist
nationalism, as the employment of foreign workers will be largely
independent of economic efficiency and will only be tolerated if and
only if it does not adversely affect the economic security of
individual native workers. Similarly, to minimize competition with
native workers, the type (for example, the skill levels) of the
admitted foreign workers will be complementary, and the
employment-related rights (such as the right to minimum wage) accorded
to them will be similar to those of native workers.
Under employer-rights-based nationalism, the number, type, and rights
accorded to foreign workers are essentially determined by native
employers. In this case, the number of admitted foreign workers is
likely to be greater than those admitted under both worker-rights-based
nationalism and consequentialist nationalism. The primary reason is
that employer-rights-based nationalism entitles native employers, in
their employment decisions, to pay only limited attention to the
consequences for the rights of individual native workers, and to
largely ignore the externalities or unintended consequences of their
actions for the community as a whole.
It may be argued that a policy that protects citizen employers'
rights to employ as many noncitizen workers as they want to is akin to
surrendering the state's sovereignty of border control to the
employers. On the face of it, one may expect this to happen very rarely
in practice. However, the widely observed policy of “benign
neglect” over the issue of illegal immigration is, in effect,
based on an ethical framework of employer-rights-based nationalism. A
much-discussed example of such “benign indifference” is
U.S. policy toward undocumented workers in agriculture, where internal
and border enforcement efforts have been systematically relaxed during
periods of high labor demand.58
Consequentialist Cosmopolitanism
Consequentialist cosmopolitanism requires labor immigration policies
to be informed by the outcomes for (rather than the rights of) migrants
and nonemigrant citizens (of both sending and receiving countries). If
these outcomes are positive (for example, providing significant income
gains for migrants, remittances for the sending country, and so on) and
outweigh the potentially reduced net benefits for citizens, the number
of admitted foreign workers under a cosmopolitan position is likely to
be higher than that under a position with a low degree of moral
standing for noncitizens. In fact, it could be argued that if economic
efficiency and distribution were the only outcome parameters,
consequentialist cosmopolitanism would require open borders, as the
free flow of labor increases world welfare and decreases global
inequality (among workers and among capital owners). Hamilton and
Whalley calculate the magnitude of the global efficiency gain from free
international labor migration and conclude that, depending on the
prevailing elasticities of substitution, the potential gain exceeds
worldwide GNP in most cases.59
Global
efficiency gains also constitute one of the main arguments used in
Carens's well-known statement of the case for open borders.
60 Regarding the selection of foreign workers under consequentialist
cosmopolitanism, one could imagine a points system that, in contrast to
the system implied by consequentialist nationalism, includes criteria
ensuring that the interests of both migrants and nonemigrants are taken
account of. For example, migrants could be selected based on
“need,” that is, among all those satisfying all other
criteria, only the poorest applicants are admitted. Alternatively, in
countries that assign a lot of weight to ethnic diversity or
distribution and equality of opportunity among noncitizen applicants,
the selection mechanism may involve a lottery, as in the American
“Diversity Immigrant Visa Lottery Program.”
Turning to the desirable bundle of rights for migrant workers,
consequentialist cosmopolitanism requires that the bundle benefits
citizens of the receiving country and sending country alike, as well as
migrant workers themselves. In this context, one of the trickiest but
arguably most important (as well as sensitive) questions is: What
bundle of rights is in the best interest of migrant workers?
Consequentialist cosmopolitanism draws attention to the important, but
frequently overlooked, insight that more rights may not always be
associated with “better” outcomes for migrant workers.
Consider, for example, the case of migrant workers who do not enjoy
the same employment-related rights as citizens in the receiving
country. Suppose that the migrant workers' wage is lower than what
the citizens doing the same job receive, but is much higher than what
they would earn in their country of origin. Further suppose that the
migrant workers would not be employed if the native employer were
somehow compelled to pay everyone equal pay for equal work. In contrast
to rights-based cosmopolitanism (see below), consequentialist
cosmopolitanism would tolerate (or even recommend) the described
arrangement, if the improvement in the migrant workers' welfare
from their employment under the condition of “unequal
rights” is larger than that from a reduction of the “rights
differential” between citizens and migrant workers (at the cost
of reducing the chance of employment for the migrants). Within this
normative framework, insisting on granting certain rights to migrant
workers (for example, equal pay for equal work) would be unethical, as
it makes migrant workers “worse off” in terms of their
economic situation (and, possibly, also in terms of their bundle of
rights).61
Of course, a migrant worker
with fewer rights than his or her native coworker may still enjoy more
rights than in his or her country of origin!
Rights-Based Cosmopolitanism
Under rights-based cosmopolitanism, the policy imperative is to
protect the individual rights of citizens, noncitizens, and migrants.
Again, as in the case of rights-based nationalism, the two critical
questions concern, first, the hierarchy between potentially conflicting
rights, and second, the number and the scope of rights to be recognized
and protected by the state. However, because the right to freedom of
contract is likely to be included in any system of rights (even in what
Nozick calls a “minimal state”), one may expect
rights-based cosmopolitanism to result in a greater number of admitted
foreign workers than consequentialist cosmopolitanism. In fact, Carens
argues—drawing on Nozick's theory (which, when applied
globally, qualifies as rights-based cosmopolitanism)—that
restrictions on people's movement are only ethically permissible
if contractually agreed upon.62
Similarly, with regard to the desirable selection mechanism, much
depends on the number and priority of certain rights. For example,
rights-based cosmopolitanism can suggest that citizen employers be
allowed to employ foreign workers who possess the qualities that they
prefer, and that foreign as well as native workers be given the
opportunity to compete for jobs on a “level playing field.”
The freedom of movement and employment within the EU may be cited as a
case in point.
As interpreted and advocated by most nongovernmental organizations
(NGOs) and international organizations concerned with workers'
rights, such as the International Labour Organization (ILO),
rights-based cosmopolitanism can be seen to imply that any arrangement
allowing for discrimination in bundles of basic rights across
individuals is morally wrong. This common interpretation of
rights-based cosmopolitanism overlooks, however, the fact that
protecting migrant workers' rights also implies respecting their
right to self-ownership and freedom of contract (and thus their right
to waive/transfer/sell their rights). In other words,
rights-based cosmopolitanism not only requires that migrant workers be
given as many rights as the receiving country could possibly tolerate,
but also that migrant workers be given the right to determine their own
fate (in an environment of full information). It thus appears as though
rights-based cosmopolitanism pits the argument for protection against
the argument for self-ownership and alienability of rights. This,
unfortunately, is rarely acknowledged.
What Ethical Guidelines for the Design of
Labor Immigration Policies?
The discussion in the previous section should be seen as a first
attempt to apply and work out the implications of some of the major
ethical frameworks for the design of labor immigration policy. While
some may not agree with the particular way in which we have drawn
implications for labor immigration policy from each ethical framework,
we hope that our discussion has at least shown that different
frameworks can lead to sometimes radically different policy
implications. But given the large set of different ethical frameworks
in Figure 3, what does our discussion of the
ethical issues tell us about the most desirable design of labor
immigration policy?
Our approach to answering this question involves three steps. First,
we make the case for the adoption of a combination of
“realistic” and “idealistic” approaches to the
ethics of labor immigration policy. We argue that this, in turn,
implies the adoption of an ethical framework within the ethical
subspace of moderate consequentialism and moderate moral standing for
noncitizens (where “moderate” indicates the rejection of
extreme positions along the border of the “ethical space”
in Figure 3, rather than a specification of
the ethical framework located in the perfect center of Figure 3). Second, we propose criteria that should
guide national policymakers in their choice and application of a
framework within that space. Finally, we briefly discuss some of the
implications of the identified “ethical guidelines” for the
design of labor immigration programs in practice.
The Need for Moderate Consequentialism and Moderate
Moral Standing for Noncitizens
Our argument begins with the distinction between what Carens calls
the “realistic” and “idealistic” approaches to
morality.63
The “realistic approach” is firmly
based on existing realities and stresses the importance of avoiding too
big of discrepancies between the “ought” and the
“can.” On the other hand, the “idealistic
approach” is less constrained by considerations of practicality
and focuses only on what “ought to be,” regardless of
whether or not the implied policies are currently feasible. As Carens
suggests, there is no single most “correct” starting point
for theoretical reflection in the ethical discourse on immigration.
64 However, if the objective of
the ethical discourse is to yield practical policy implications (as it
is in this article), there is a strong argument to be made for adopting
a combination of both approaches. On the one hand, idealistic
considerations are needed to “break new ground” in thinking
about ethics and public policies. On the other hand, if the discussion
is to yield any practical policy implications, there must be a
significant realistic component. King makes the eminently sensible
point along this line that “to ask people to accept policies
which threaten to lower their own well-being sharply in the name of
some abstract moral principle is clearly impracticable.”
65 A realistic approach suggests that a desirable ethical framework for
labor immigration policy needs to be much less cosmopolitan, and
significantly more consequentialist than currently suggested by the
highly rights-based and cosmopolitan ethical framework advocated by
most international organizations and NGOs (see, for example, the
principles manifested in the ILO Migrant Worker Conventions or in the
UN Treaty on Migrant Workers).
This approach starts from the recognition that, with very few
exceptions (such as the EU, whose member-states have collectively
decided to grant each other's citizens freedom of movement within
the EU), labor immigration policy is being made at the national
level.66
Note that, while there have been
bilateral migration agreements—such as the Bracero program
between the United States and Mexico (1942–64) and the
Gastarbeiter programs between Germany and Italy, Greece,
Spain, Turkey, and the former Yugoslavia (1955–73)—the most
important decisions in the design and operation of these guest worker
programs were still made by national policymakers in the receiving
countries. Furthermore, the currently existing regional consultative
processes on international labor migration are all informal and
nonbinding. See Klekowski 2001.
If
one accepts that citizenship is a meaningful concept in a world of
sovereign and self-determining nation-states, it follows that one needs
to also accept that one cannot place unrealistic demands on national
policymakers, such as equal treatment of citizens and noncitizens
(where “unrealistic” is understood in the sense of being
unachievable).
Furthermore, although we have not discussed the ethical framework
underlying any particular country's labor immigration programs in
any detail (something that is beyond the scope of this article), it
may, nevertheless, be argued that many of the existing national labor
immigration programs are based on an ethical framework that comes close
to consequentialist nationalism—that is, a relatively low moral
standing for noncitizens and relatively high weights assigned to
economic efficiency, distribution, and national identity (rather than
citizens' rights) as policy outcome parameters.
This preference of national policymakers—for a high degree of
consequentialism and a relatively low degree of moral standing for
noncitizens—is reflected in, and the major explanation for, the
low numbers of ratification of the two ILO conventions and the UN
treaty on migrant workers, all of which are based on an ethical
framework of rights-based cosmopolitanism. As shown in Tables 2 and 3, the numbers of
ratification of these international legal instruments have been
disappointing—both in absolute terms (that is, considering the
total number of ILO and UN member-states) and in relative terms (that
is, compared to the number of ratifications of other major ILO
conventions and UN human rights treaties). Importantly, the few
countries that have ratified international migrant worker conventions
are predominantly migrant-sending, rather than migrant-receiving,
countries.67
As of May 2003, the
UN's International Convention on the Protection of All Migrant
Workers and Members of Their Families has been ratified by Azerbaijan
(1999), Belize (2001), Bolivia (2000), Bosnia and Herzegovina (1996),
Cape Verde (1997), Colombia (1995), Ecuador (2002), Egypt (1993), El
Salvador (2003), Ghana (2000), Guatemala (2003), Guinea (2000), Mexico
(1999), Morocco (1993), the Philippines (1995), Senegal (1999),
Seychelles (1994), Sri Lanka (1996), Tajikistan (2002), Uganda (1995),
and Uruguay (2001).
Ratifications of ILO fundamental conventions and migrant worker conventions
(as of May 2003)
Ratifications of principal international human rights treaties (as of May
2003)
In addition to being more realistic than the highly rights-based
approach behind the above-mentioned conventions, a more than minimally
consequentialist ethical framework would also be necessary to
facilitate the promotion of the overall interest of migrant workers,
which comprises both their rights and their economic welfare (see Table 1). Given that the promotion of migrant
workers' rights and economic betterment may be negatively
correlated, an extreme rights-based ethical framework would imply that
no level of improvement of foreign workers' welfare would justify
the restriction of some of their rights. Considering that many migrant
workers migrate for economic reasons, the assignment of an only minimal
weight to their economic welfare seems unlikely to be in their overall
interest. At the same time, it is equally obvious that policies based
on too high a degree of consequentialism, with little or no regard for
even the most basic human rights of migrant workers (such as the right
to bodily integrity), would be equally objectionable within an ethical
framework that purports to be concerned with the overall interest of
migrant workers.
A realistic approach suggests at least two further reasons for
national policymakers to protect and promote the interests of migrant
workers in their countries. First, migrants who achieve better overall
outcomes (in terms of both their economic welfare and rights) are less
likely to be associated with crime and other “bad
consequences” for the native population of the receiving country.
Second, most, if not all, countries are both receivers and senders of
migrant workers. Clearly, the effective protection and promotion of
their citizens abroad will only be possible if receiving countries
themselves offer a degree of protection to noncitizen migrant workers
that is similar (at least in relative terms) to that which they expect
to be accorded to their citizens abroad.
In addition to the above-mentioned reasons for protecting the
interest of migrant workers based on a realistic approach, an
idealistic approach requires national policymakers to give more than
the minimum consideration in their policy decisions to the interests of
noncitizens, based on the recognition that the employment of foreign
workers is by its nature a national and international issue. This stems
from the fact that, unlike the case of international trade and capital
flows, the process of international labor migration creates a distinct
group of individuals— namely, the migrant workers—who face
an inherent risk of enjoying fewer rights and a lower degree of
protection of their interests more generally than the rest of the
world's population. This is because the sending country generally
does not have any legal jurisdiction outside its territory, while the
host country is often reluctant to assume full responsibility unless
migrant workers are permanent residents or become citizens.
We therefore conclude that, given the need to adopt a combination of
realistic and idealistic approaches to promote new policy ideas that
have a chance of success in real life, the ethical space for the
desirable design of labor immigration policy is limited to those
ethical frameworks characterized by moderate degrees of
consequentialism and moderate degrees of moral standing for noncitizens
(see Figure 3). This implies that there are
no “easy choices” in labor immigration policy: whatever the
substance of the policy, national policymakers need to balance the
consequences of the employment of foreign workers for the
broadly-defined interests of citizens with those for the interests of
migrant workers and the sending country.
Consistency Criteria for the Desirable Design of Labor
Immigration Policy
Having eliminated the extreme ethical frameworks in Figure 3, we are still left with a large (in fact
infinitely large) set of potentially desirable ethical frameworks
(within the space of moderate consequentialism and moderate moral
standing for noncitizens). This section explores whether we can say
anything more concrete about the desirable design of labor immigration
policy.
We begin by recognizing the significant contextual differences that
exist between different countries. These differences are manifested,
for example, in differences in the level of economic development,
culture, international relations with the migrant-sending countries and
the world community as a whole, the role and power of the judiciary,
and, perhaps most importantly, the actual capacity of the state to act
and implement certain policies.68
For a
discussion of the ethical obligations of weak states, see, for example,
O'Neill 2000 and 2002.
Given the sovereignty and self-determination of nation-states, these
contextual differences suggest that there is unlikely to be a single
ethical framework and corresponding labor immigration policy that can
be identified as the most desirable one for all countries. This implies
that, rather than looking for a “one-size-fits-all” ethical
framework and labor immigration policy, we can only aim to formulate
criteria that guide national policymakers in the choice of an ethical
framework and in the application of the chosen framework in formulating
labor immigration policy.
The criteria that we propose are based on the idea that a desirable
labor immigration policy needs to be logically derived (criterion of
“consistency in application”) from an internally consistent
ethical framework (criterion of “internal consistency”).
The criterion of consistency in application requires three
things. First, there needs to be a comprehensive discussion of the
consequences of international labor migration for all parties
concerned. These discussions would need to go significantly beyond
existing debates in most countries (especially outside the United
States and the EU, where most of the research has been carried out).
Much more research and discussion would be particularly required in
areas that have so far received only little attention (see the
discussion above in the second section).
Second, a country's labor immigration policies must be logically
derived from the underlying ethical framework. For example, if the
country's chosen ethical framework was highly cosmopolitan and
egalitarian, a policy of giving migrant workers with certain
nationalities preferential treatment over workers with other
nationalities would be inconsistent with the underlying ethical
framework and thus inadmissible.
Third, at any given point in time, the decisions on the three policy
parameters (number, selection, and rights of migrant workers) need to
be consistently based on one and the same ethical standpoint. This
excludes, for example, a policy combination of severely restricting the
rights of migrant workers based on an ethical framework that is highly
consequentialist and nationalistic on the one hand, while at the same
time allowing a relatively free inflow and employment of foreign
workers justified by an underlying ethical framework that is highly
consequentialist and cosmopolitan, on the other hand.69
It is important to note, however, that such
a combination of policy parameters is not necessarily an ethically
impermissible or undesirable policy. But it is certainly so, if the
decisions on the two parameters (number and rights of migrant workers)
are based on two different ethical frameworks.
The criterion of internal consistency of the chosen ethical
framework requires that the reasons for deciding on a certain degree of
consequentialism must not be in conflict with the reasons for deciding
on the degree of moral standing accorded to noncitizens.
For example, decisions on the degrees of consequentialism and moral
standing for noncitizens may be based on a specific stance in the now
long-standing debate between “individualists” and
“communitarians.”70
An
individualistic standpoint— that is, a belief in the priority of
the rights of an individual over the “common good” of the
community—generally implies a minimally consequentialist
position, while a communitarian view would suggest a high degree of
consequentialism. At the same time, individualism has been interpreted
to suggest that ethical principles are universally generalizable
(“ethical universalism”)—that is, that they are
independent of the community of which the individual is a part. In
contrast, a communitarian point of view may be interpreted as
advocating “ethical relativism,” which implies that
morality critically depends on, and varies with, the community under
consideration. It may thus be argued that an individualistic standpoint
would suggest a relatively low degree of consequentialism and a high
degree of moral standing for noncitizens, while a communitarian view
may be interpreted to imply a higher degree of consequentialism with a
lower degree of moral standing for individuals outside the community.
Deciding on other combinations of consequentialism and moral standing
for noncitizens—for example, the combination of a high degree of
consequentialism and a high degree of moral standing for
noncitizens—would violate the criterion of internal consistency
(if the reasons for making these decisions stem from a stance in the
individualism versus communitarianism debate).
Policy Implications
In order to translate the ethical guidelines for labor immigration
policy identified in the previous two subsections into policy practice,
we propose to design new types of temporary foreign worker programs
that differ in at least two major ways from most of the major past and
existing temporary foreign worker programs,71
For discussions of the potential problems and alleged
“failure” of past programs, see, for example, Martin and Teitelbaum 2001; and Martin 2000. For the counterargument and a
preliminary attempt to formulate basic principles for making temporary
foreign worker programs work, see Ruhs
2003.
and from the policies implied by some of the
existing international migrant worker conventions.
First, rather than primarily benefiting a relatively small group of
citizens (that is, employers of foreign workers) within the
migrant-receiving country (as has been the case with many past and
existing temporary foreign worker programs), the programs that we
propose are designed to more actively promote the interests of migrants
and sending countries, as well as those of all citizens of the
receiving country. Second, rather than insisting on a very
comprehensive set of rights for migrant workers (as does the UN Treaty
on Migrant Workers), the programs that we have in mind would focus on a
list of core rights for migrant workers, which are transparent,
monitored, and effectively enforced. A related point is that, as long
as the underlying ethical framework remains within the ethical subspace
of moderate consequentialism and moderate moral standing for
noncitizens, the detailed design of such programs could be highly
country-specific.
For example, the necessary safeguards against the potential
exploitation of foreign workers must include policies that avoid a
situation where migrant workers are tied and thus effectively sold to
employers who assume almost full control over their purchased
“property.” This may be achieved by giving foreign workers
at least some freedom of employment within specific sectors or
occupations of the host country's labor market (which are likely
to vary by country and time period). Similarly, foreign workers need to
be offered protection with regard to employment conditions, especially
those pertaining to working hours and safety at work. This would also
ensure that foreign workers do not compete with native workers in terms
of non–wage-related employment conditions, such as accepting
overtime without pay and lower safety standards at work.
One particular area of concern to national policymakers should be to
ensure that foreign workers join temporary foreign worker programs
based on a well-informed assessment of the consequences of this
decision for their welfare and rights. Among other things, this
necessitates transparency in the operation of the program and
“truth in advertising,” which entails strict enforcement
against employers or recruitment agents who recruit and employ foreign
workers based on the provision of misleading information about
employment and living conditions in the receiving country.
It should also be recognized at the stage of policy design that some
admitted foreign workers may seek permission to remain in the host
country on a permanent basis and to bring their families into their
country of employment (if that right has not already been granted under
the temporary foreign worker program). This means that the
implementation of any temporary foreign worker program must also
include mechanisms and rules for transfer into different and
“better” programs that grant foreign workers permanent
residence status (and possibly citizenship) and the right to family
reunion. Possibly depending on, inter alia, the share of
foreign workers in the total population, these rules for transfer are
likely to differ both between different countries and across time
periods within a single country.
At the same time, temporary foreign worker programs that are based on
an ethical framework characterized by moderate degrees of
consequentialism and moral standing for noncitizens would need to deny
migrant workers some of the rights that are generally granted to
citizens and permanent residents of the host country.
Examples of migrant workers' rights that would need to be
restricted include the right to free choice of employment in the host
country's labor market and, more obviously, the right to remain
employed in the host country following the expiration of the work
permit. The restriction of these rights is necessary to make the
program beneficial to the host country in the first place by, for
example, protecting the employment of citizens in certain sectors, and
by facilitating the voluntary or forced return home of foreign workers
whose work permits have expired and who have failed to upgrade into
different, more permanent immigration programs.
Some restrictions of the rights of foreign workers may also be
necessary to make sure that the sending country benefits from such
programs. For example, to avoid the effective permanence of what is
supposed to be temporary emigration (and the associated potential decay
of remittances), and to facilitate the transfer of the skills
potentially acquired by migrant workers in the host country back to the
sending country, it may be necessary to issue work permits/visas
that are strictly limited in time and that may not be renewed an
unlimited number of times (unless the status of the migrant worker is
upgraded into higher categories such as permanent residency or
citizenship). The restriction of foreign workers' maximum period
of employment abroad is also likely to benefit workers who still work
in their home countries but seek to migrate and work abroad, as longer
stays of the workers currently abroad naturally make it more difficult
for outsiders to gain access to a given foreign labor market.
If implemented successfully, temporary foreign worker programs that
are designed along the lines described above would generate more
tangible and sustainable benefits for migrant workers and sending
countries than current and past programs have done. At the same time,
they would offer host countries considerable room for maximizing the
positive consequences of labor immigration (such as the alleviation of
labor shortages in times of rapid economic growth and tight labor
markets) and for protecting the interests and rights of all of their
citizens (such as a citizen worker's rights to preferential access
to the national labor market and the right to share in the economic
benefits created by the program). One may therefore reasonably expect
that the advocacy and implementation of such programs may significantly
raise the global number of international migrant workers. Given that
the current degree of international labor market integration is
significantly lower than that of the integration of international
markets for capital and commodities, the potential economic benefits
from liberalizing international labor flows (through, as we suggest,
new and expanded temporary foreign worker programs) significantly
exceed those from further liberalizing international trade and capital
flows.72
Conclusion
Because of the general reluctance and apparent inability among the
participants in labor immigration debates to explicitly state, justify,
and critically discuss the ethical underpinnings of their arguments,
labor immigration debates have been largely carried out in a very
confused way. As a result, people frequently talk at cross-purposes
without any hope of appreciating and critically discussing competing
points of view.
In an effort to help better organize the general discussion on
international labor migration, this article has tried to identify and
disentangle the fundamental ethical questions relevant to the
evaluation and design of labor immigration policy.
We suggest that participants in labor immigration debates need to
first acknowledge the role of migrant workers' rights as a key
policy parameter in international labor migration and then engage in
three distinct and separate discussions about: (1) the consequences of
international labor migration for the receiving country, sending
country, and migrants; (2) the degree of consequentialism employed in
policy design and the moral standing accorded to noncitizens; and (3)
the implications of the resulting “ethical framework” for
the design of labor immigration policy.
Our discussion of the potential ethical guidelines for the design of
labor immigration policy concludes that, if one accepts the need for
adopting a combination of realistic and idealistic approaches to
advance new policy ideas that have a chance of success, there is a case
to be made for the rejection of extreme ethical frameworks within the
ethical space of consequentialism and moral standing for
noncitizens.
We further argue that the sovereignty and significant contextual
differences that exist between different nation-states suggest that
there is unlikely to be a “one-size-fits-all” ethical
framework and labor immigration policy. We thus propose criteria that
should guide national policymakers in the process of choosing and
applying a framework within the ethical subspace of moderate
consequentialism and moderate moral standing for noncitizens. The
criteria that we propose are based on the idea that a desirable labor
immigration policy needs to be logically derived (criterion of
“consistency in application”) from an internally consistent
ethical framework (criterion of “internal consistency”).
Finally, based on the “ethical guidelines” for the design
of labor immigration programs identified in our analysis, we make the
“ethical case” for new types of temporary foreign worker
programs that are designed to more actively promote the interests of
migrant workers and sending countries than most current and past guest
worker policies have done. We argue that such new programs need to more
clearly define, and more effectively enforce, certain core rights of
migrant workers.
To be sure, the ethical questions that we ask in this article are
exceedingly difficult to answer. These questions are politically
sensitive and, perhaps more importantly, require the participants in
labor immigration debates to question the (sometimes very personal)
ethical values and convictions underlying their arguments. However,
without a more honest discussion that does not shy away from ethical
questions, the issue of international labor migration will remain the
“soft underbelly” of globalization.
