Securing Social Security for Migrant Workers: Orthodox Approaches or an Alternative (Regional/Political) Path for Southern Africa?

Abstract

The South African Constitutional Court decision in Khosa has rightly been acclaimed for recognising a human right to welfare for certain ‘settled’ but noncitizen immigrant workers. Likewise, the extensive rights for immigrant workers under the 1990 Convention on the Rights of All Migrants and their Families read as a ‘gold standard’ international treaty. Social and economic rights of migrant workers are endorsed by an array of International Labour Organisation (ILO) instruments and in the recent General Comment on Social Security (November 2007) of the UN Committee on Economic, Social and Cultural Rights, which elaborates the meaning of the right to welfare in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). So why is there so little to show for these pronouncements? Are such measures largely doomed to failure, and why might a radically new regional or political approach be needed? The explanation for the lack of practical impact, it will be suggested, lies in the understandable political entrenchment of a ‘national’ concept of citizenship rights, coupled with the magnitude of the forces involved in global movements of finance, trade and migratory labour. The first will be shown to explain why noncitizens are denied welfare when living and working in another country, and even expatriate citizens from wealthy countries like Australia are denied portability of previously accrued rights when not living in their home country; as well as explaining why the only domestic legislative response to Khosa was not an alteration to migrant welfare rights but parity of age pension ages for citizens. The second will be shown to explain why neither major receiving nor major sending countries