The teeter-totter of immigrant inclusion.

This was a short response paper I wrote for my Comparative Legal Culture course. I scored well. (Too bad it isn't worth more in the final grade.) Also, the footnotes didn't carry over to the blog so much of this text had citations in the original document. If you need citations for any reason, please post a comment and I will include them.

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In her book, “Immigrants at the Margins,” Kitty Calavita sets forth the problem of immigrant inclusion as a two-headed contradiction between the economic necessity of immigrant labor and the “otherness” required to keep immigrants in a lower status that facilitates their exploitation as laborers. However, I see the contradictions of immigrant inclusion as a three-faceted problem. The first two facets are as Calavita sets forth: the economic necessity of the immigrant labor force, whether legal or illegal; and secondly, the necessary “otherness.” I also propose that there is the contradiction between the internal political requirements of balancing each of the first two forces (immigrant labor and the “otherness”) against the external forces and pressures that measure a liberal democracy (i.e., international law, treaties and supranational organizations.)

Italy’s view of immigration is centered on human rights. Article 43 of the Turco-Napolitano Law of 1998 made it illegal to discriminate, defined as “any activity or attitude that compromises a person’s enjoyment of ‘full human rights and liberties in political, economic, social and cultural contexts.’” Italy enacted several regional laws to give force to Turco-Napolitano, focusing many resources on integrating immigrants into Italian society. At the same time, resources also were directed to courses and programs designed to help immigrants retain their original culture and to provide information about immigrants reinsertion into their homelands.

In the implementation of the regional laws, we can see the tension politicians face. Regions and cities must apply for grants from the national government for the various integration and cultural programs for immigrants. However, in the areas where there is most need, there is also the highest likelihood that politicians will not apply for these funds due to the political backlash from the general population who wish to keep immigrants out. However, the areas most hostile to immigrants are not always the ones that shun funds for immigrant programs. Sometimes, economic realities and the needs of business in the most socially conservative regions intervene to ensure that politicians secure these funds. A comparison of two politically and ideologically different regions in Italy found that their immigration policies were surprisingly similar, even though the rhetoric differs.

Spain’s immigration policies are also built upon a foundation of human rights. Its integration policies specifically mention “the right of (legal) immigrants to access all of the fundamental human rights that Spaniards claim; their access to social services; and the importance of tolerance, ‘respect for cultural diversity,’ and ‘the fight against racism and xenophobia.’” Despite Spain’s rhetoric about “respect for cultural diversity” and the fight against xenophobia, Spain has translated this concern into a focus on protecting domestic culture and languages, like in Catalonia.

Prior to coming to study in Rome, I spent time with a French family that I lived with when I was sixteen years old. I asked them their views of immigration in France. Despite the family’s overall liberal view of immigration, one thing that they mentioned was the need to preserve French culture and language. This is a common theme in France. For example, people will watch the evening news and fault the newscasters for not using proper (i.e., old) French and incorporating any new slang or American terms into their language. So, while some French welcome immigrants, many retain a concern over guarding their own culture and customs.

The United States’ view of immigration has little to do with international human rights, international law or treaties. This is not surprising in a country that has made the very few human rights treaties it has signed non-self-executing, giving their own citizens absolutely no right of redress if the U.S. government fails to fulfill their treaty obligations. Both Italy and Spain’s integration policies specifically mention fundamental human rights, which are extended to immigrants by virtue of their status as human beings. Conversely, there was legislation proposed in Washington State this spring to limit Medicaid benefits to the children of undocumented immigrants. Washington H.B. 1441. This law would actually violate the Convention of the Rights of the Child. Article 24, section 1, states:

States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right to access such health care services.

In addition, Article 2, section 1, states:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Finally, Article 3, section 1, states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added.)

These provisions, read together, would ban legislation that would prevent children from accessing basic healthcare based on their parent’s status as undocumented immigrants. However, the United States, along with Somalia, has not ratified this treaty. One could argue that by virtue of the ratification by all member states, save two, that the rights enshrined in this treaty rise to the level of customary international law. However, like most international human rights law violated by the United States, redress is not readily accessible.

Conversely, Spain and Italy have, at least on the books, laws that enable immigrants to access healthcare, housing and other basic human needs. However, despite having the proper legislation that fulfills their treaty obligations, Calavita demonstrates that both Spain and Italy have serious problems “on the ground” with implementation of these laws at the local level.

In viewing these three countries’ policies broadly, one can see similarities in how Italy, Spain and the United States deal with the tensions between the need for immigrant labor and the need to exclude “others” from their societies. However, there is a stark contrast between how Italy and Spain view their obligations to uphold basic international human rights, and the United States where human rights does not appear to be part of the discourse, either for immigrants or its own citizens.