Children, Human Rights and Temporary Labour Migration

Protecting the Child-Parent Relationship

Rasika Ramburuth Jayasuriya

• Editore: Routledge
• Anno: 2021
• ISBN:
  9781000418743
• Edizione: 1
• Argomento: Business
• Categoria: Diritto societario

This book focuses on the neglected yet critical issue of how the global migration of millions of parents as low-waged migrant workers impacts the rights of their children under international human rights law.

The work provides a systematic analysis and critique of how the restrictive features of policies governing temporary labour migration interfere with provisions of the Convention on the Rights of the Child that protect the child-parent relationship and parental role in children's lives. Combining social and legal research, it identifies both potential harms to children's well-being caused by prolonged child-parent separation and State duties to protect this relationship, which is deliberately disrupted by temporary labour migration policies. The book boldly argues that States benefitting from the labour of migrant workers share responsibility under international human rights law to mitigate harms to the children of these workers, including by supporting effective measures to maintain transnational child-parent relationships. It identifies measures to incorporate children's best interests into temporary labour migration policies, offering ways to reduce interferences with children's family rights.

This book fills a gap that emerges at the intersection of child rights studies, migration research and existing literature on the purported nexus between labour migration and international development. It will be a valuable resource for academics, researchers and policymakers working in these areas.

The Open Access version of this book, available at http://www.taylorfrancis.com/books/e/9781003028000, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license

Part B

DOI: 10.4324/9781003028000-6

4 Article 27

Is TLM an appropriate form of assistance to parents to meet their children’s development needs?

DOI: 10.4324/9781003028000-7

Article 27

1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4.1 Introduction

Article 27 is the first CRC article identified in the normative and conceptual framework outlined in Part A. Its immediate relevance to TLM is twofold. First, it protects children’s right to a standard of living that is adequate not only for their physical development, but also for their mental, spiritual, moral and social development.¹ (For the purposes of brevity, these non-physical aspects will be referred to hereafter as a child’s psychosocial development.) Second, it entitles parents to appropriate measures of assistance from States to meet their primary responsibility to secure the necessary living conditions to fulfil this right of children.² This chapter examines these separate but connected prongs of Art 27 in light of both labour-sending and labour-receiving States encouraging parental migration as a measure to enable parents to provide for their children’s development needs.

The chapter argues that the promotion of parental migration for employment by States has two consequences. The first is that it inappropriately shifts the entire burden of providing for children’s material needs to parents who have limited alternatives to migration in the face of poverty and un- or under-employment. This is despite the duty of labour-sending States to assist parents in need (subject to available national means) to provide for children’s basic material requirements.³ The second is that TLM completely ignores the potential impact of prolonged parental absence on children’s psychosocial development and well-being. This is despite labour-sending States having the duty to assist parents to secure the living conditions necessary for their children’s psychosocial development needs as well as their material needs; and labour-receiving States having a duty to not cause harm to children outside their jurisdiction in line with the principle of international cooperation.⁴ These arguments comprise the first two parts of this chapter. Together, they demonstrate that it is misleading to conceive of TLM in its current forms as an ‘appropriate’ measure of assistance to parents by States in fulfilment of their obligations under Art 27(3). The notion of ‘appropriate’ assistance is defined in Section 4.2.1.

On the contrary, while TLM may create an opportunity for parents to provide for their children economically, this chapter demonstrates that the provision of parental assistance is by no means an intended purpose of TLM. Rather, is shows that findings as to whether TLM improves children’s education, health and material outcomes are mixed and there are considerable concerns about the impact of TLM on children’s psychosocial development and well-being. The latter is largely attributed to the disruption that TLM causes to the child-parent relationship. It highlights the heightened risks to children when their relationship with their primary caregiver is disrupted at the time of migration, which is increasingly so with the feminisation of migration for care and domestic work.⁵ The chapter argues that such disruption to the child-parent relationship, which is protected in the CRC, reflects the inappropriateness of TLM as a measure of assistance to parents to provide for their children.

The final part of this chapter considers the significance of a child’s age and capacity in relation to understanding their development needs and how they may be impacted by parental migration. It argues that appropriate measures of assistance to parents cannot be determined without due consideration of the age of their children at the time of separation. It emphasises that if TLM is to genuinely assist parents to provide for their children’s development needs, then it must incorporate measures that actively support children and parents to sustain their relationship in the event of migration. To be effective, these measures must be age-appropriate and respond to children’s changing development needs. Moreover, their implementation must be supported by both labour-sending and labour-receiving countries. This is because children’s capacity to enjoy and benefit from their relationship with their parents in the context of TLM is determined by transnational arrangements between States.

1 CRC art 27(1).

2 CRC art 27(3).

3 CRC art 27(3).

4 The principle of international cooperation is discussed in Chapter 3 (see Section 3.3).

5 The feminisation of migration is discussed in Section 4.3.2(i) below.

4.2 The framing of TLM as a form of assistance to parents to provide for their children’s needs

4.2.1 Defining appropriate measures of assistance

The CRC Committee has explained that when States ratify the Convention, they assume ‘obligations under international law to implement it’.⁶ Furthermore, Art 4 of the CRC obliges States to ‘undertake all appropriate legislative, administrative, and other measures’ necessary for the implementation of all CRC rights. The CRC does not define what these appropriate measures are in either the general measures of implementation identified in Art 4 or in relation to parental assistance in Art 27. Rather, States maintain discretion in deciding those measures they deem appropriate to ensure the realisation of CRC rights.⁷ This approach is reflected in the ICRMW, which also affords States significant discretion in determining what measures they deem appropriate to facilitate the unity of migrant workers and their families.⁸ However, as Tobin explains:

[T]he ordinary meaning of the word ‘appropriate’ demands that there must be a nexus between the measures undertaken and the end sought, namely, the effective implementation of the right in question.⁹

Hence, State discretion is limited by the need for measures to ‘actually contribute to the realisation of children’s rights’, as well as for their implementation to be consistent with all other CRC articles.¹⁰ Respectively, these reflect ‘the principle of effectiveness’ and ‘the consistency principle’,¹¹ which assist in understanding whether a measure can be considered appropriate.

6 General Comment No 5, UN Doc CRC/GC/2003/5, para 1.

7 John Tobin, ‘Article 4. A State’s General Obligation of Implementation’ in J Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (OUP, 2019) 108, 111–12; Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (ETO Consortium, January 2013) [8].

8 ICRMW art 44.

9 Tobin, above n 7, 112.

10 Ibid 111.

11 Ibid.

i Measures must be effective

The requirement for measures to be effective requires States to develop measures that are evidence-based rather than based on assumptions about their likely effect.¹² This presents a significant challenge to arguments in favour of parental migration as a form of assistance to parents given that the evidence about the impacts of TLM on children’s development outcomes are heavily mixed. Examples of this mixed evidence are presented in Sections 4.2.5 and 4.3. Furthermore, when sufficient evidence is not available, then States must ensure that any measures that they do adopt are properly monitored, reviewed and evaluated to determine if they are effective.¹³ This is necessary because States carry the burden of demonstrating the appropriateness of the measures that they adopt to implem...