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Managed Rights, Managed Migration

The Case of the European Union and Implications for Japanese Immigration

By Midori Okabe | January 26, 2010

The right to move should be one of the fundamental rights guaranteed to every individual. As most participants agreed at the "Right to Move" symposium held at Sophia University, Tokyo, on December 12–13, 2009, people should not be denied the option to move, just as people have the right to get married: Here the right to marry exactly means the right to have freedom of choice, and it is desirable if such a notion is a common understanding shared by all actors within national and international political discourse.

But the real world is far from ideal. It is not a space where people move and live across borders purely as a result of free choice. Why is it so? Are the acts of states limiting migration always to be judged as unethical and migrants always judged as victims? Should we be satisfied simply by labeling a country as "mishandling" migration, and is this really the best and most effective way for us to achieve the right to move, as we would hope?

I would suggest that we need to focus more on the political arena to see how migration becomes a very difficult problem with its relevance to human rights and ethics.

Borrowing from Stephen Krasner's conception of power, states, and sovereignty, we need makers, not breakers and takers, for the existence of an international regime. [Makers being those powers able to institute the system; Takers being second-tier powers that accept the system and hopefully benefit from it; Breakers being parties that see advantage in breaking the rules. These categories are not always mutually exclusive.] An international human rights regime functions best when there is an absolute sense of ethical value and an agreed standard of good and evil. Such a clear-cut and unified consensus rarely comes along, except in cases of grave catastrophe. For instance, Nazi acts of genocide were the perfect opportunity for the establishment of an international human rights regime, because in the aftermath of the war there were more than enough makers and takers, and no potential breakers, for the idea of establishing a right not to be the victim of genocide, for any reason.

In contrast, the legitimacy of an international "right to move" is much more difficult to establish because the outcomes of such a rights regime would not always be seen as beneficial to all concerned. We notice that the number of international regimes on human rights is striking but we must admit that some of them are established through arbitrary formation by those who are powerful enough, often in order for them to enable a relative gain from it.

In particular, international migration is yet to be seen as an international public good, and the preference is very much varied among the actors (or "makers") and the takers of the international regime: The idea of "controlling" the international movement of people often conflicts with several aspects of an individual right to move. Some believe the human right to move should be universally accepted, others support the right "not to move" (or a right to settle), often even outside their country of nationality. Under these circumstances, will the international regime for orderly movement of people ever become an international norm comparable to the Universal Declaration of Human Rights? Will international organizations and agencies that work on programs with regard to migration be equivalent to the UN human rights commission, not only in terms of its mechanism but also its impact on national legislative or judicial institutions?

For now, the answer is negative, however lamentable that may be. The current international approach on migration control—mostly UN initiatives—has yet to reach a consensus on how to define rights with regard to migration. Such an inability to agree on basic uniform ideas makes it difficult to create international institutions that can function at a global level.

Nevertheless, it does not mean that there is no development of international norms on migration in any form. In fact, we can find a number of international institutions (and regimes) on migration without any crystallization of a definition of human rights with regard to migration. The creation of these rights agreements may be welcomed as a potential resolution to international political problems on migration, but they also may result in international conflict, in the process of incorporating ethical values of human rights into the practice of policymaking. The common asylum and migration policy formation observed in the European Union is a good example.

The Case of the European Union

We can witness the remarkable progress of "migration diplomacy" initiated by the European Union vis-à-vis migrant-sending countries outside the union as part of its foreign (external) policy agenda. Negotiation takes place in order to reduce the migration pressure viewed from the EU's standpoint. The accumulation of international agreements of this kind between migrant-sending countries and receiving countries creates a normative space of European governance that is distinct from current refugee-protection regimes and provisions for migrants at the global level.

This embryonic regime of international migration is linked with development aid (and possibly conflict resolution) offered to the potential sending states, and has been brought about by the unique political development of the European Union. The European integration in the field of migration control (the Schengen regime) has made the idea of external aid in place of migration indispensable. It is the result of political will not to extend the "free movement of people" model to EU outsiders but to limit it to EU member states, in order to seek further deeper integration within the EU.

In the light of human rights protection for migrants, the following observations can be made. First, the right to move (or settle) for the people in the non-EU world becomes "negotiable." No one can prove that a particular non-EU national worker as a skilled immigrant is not needed in his or her home country, possibly with the argument that the home country will suffer from brain-drain. The migrant's right might thus become contingent upon international dialogue between the two countries concerned.

Second, the advocacy of the rights of an EU citizen is guaranteed at the expense of non-EU citizens, because international immigration policymaking is inextricably linked with EU statecraft, specifically integration. Viewed from outside, EU migration policy may well be regarded as a quasi-state-building process, however firmly some members reject the idea of the EU as a single state. The question of whether human rights are impartially enjoyed by the EU citizen and non-EU citizen alike has become a focus of discussion.

Implications for Japanese Immigration Policy

The immigration policy of Japan is often described as fairly underdeveloped. Most critics tend to depict the problem as both one of quantity and of quality in accepting foreigners. I agree with claims that Japan needs to accept a larger foreign population. Moreover, immigration policy requires addressing the integration issue in a more direct way, but perhaps on different grounds from most of the general criticism.

One of the biggest drawbacks of Japanese immigration policy is its failure to present the open society that has already been achieved by accepting foreign people for more than three decades. The fact is that there are more than 2 million foreign residents in Japan at present—skilled and unskilled workers, legal and through "side-door" or "back-door" channels. Also, business associations and the public sector agencies involved in economic affairs support larger-scale labor migration, as do demographic planning institutions.

The major problem of Japanese immigration policy is not that Japan does not accept foreign workers, but that the government has long kept such a low profile in the policymaking process. It has never demonstrated an ambitious level of engagement in identifying the status of de facto immigrants. All that has been accomplished is the development of precise legal entry regulations, with a poor institutional capability to cooperate with other divisions that could handle matters related to immigration, like the Ministry of Economy, Trade and Industry, the Ministries of Health, Labor, Education, and so forth. This governmental position has created the impression that Japanese society is indifferent to the plight of foreigners, or simply not an open society. This impression persists despite government tolerance for unskilled foreign workers' coming to Japan, and also the fact that the ordinary native citizen is much friendlier to foreigners than is believed by advocates for immigrants and asylum seekers.

A well-defined and realistic policy is desperately needed for Japanese society, not an ad hoc compromise on a piecemeal basis that could be viewed as a result of external pressure (gaiatsu) in the diplomatic arena. What is needed is a self-governing and comprehensive political scheme where the government can assuredly define the rights of nationals and non-nationals through a transparent democratic process. Without even a blueprint put forward, little can be expected from political developments. Nor can we examine whether or not the ethical values are incorporated or even harmed by the political practice at this stage.

Some movement toward a policy to encourage skilled immigrants and restrict the non-skilled can be found in the current political atmosphere, but it does not seem that any crucial action will be taken for the moment, mostly due to the lack of a comprehensive strategy. Without a comprehensive strategy of migration control, Japan fails to receive enough highly skilled immigrants to meet the labor demand on a stable basis. Not only that, a piecemeal policy fails to fully prepare the political basis of support within Japanese society.

What are required are, for instance, international agreements on policing and criminal prosecution, as well as other legal cooperation with migrant-sending countries, much as the European Union has approached it. The current lack of a comprehensive immigration policy by the Japanese government could confuse residents of other nationalities as well as the native population, seeking to live peacefully and quietly in a multicultural society, which is yearned for by many but not yet actualized in a real sense in Japan. What is to be promoted is not the enlightenment of the ordinary Japanese citizen, since they are already very well enlightened. The priority should be on the side of politics.

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Read More: Democracy, Globalization, Governance, Human Rights, Migration, Japan, Asia, Europe

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