The UN Migrant Workers Convention and Other Key International Instruments Promoting the Rights of Mi

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• The UN Migrant Workers Convention and Other Key
  International Instruments Promoting the Rights
  of Migrant Workers
• Migrant Forum in Asia
• Workshop on Migration, Globalisation and
  Development
• Organised by RMMRU
• Dhaka, Bangladesh
• 26 November 2005

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Migration as a fundamental right

• The Right to move was recognized over a half
  century ago and enshrined in the Universal
  Declaration of Human Rights
• Article 13 Everyone has the right to freedom of
  movement and residence within borders of each
  state. and Everyone has the right to leave any
  country, including his own, and to return to his
  country.
• It is time to take a more comprehensive look at
  the various dimensions of the migration issue,
  which now involves hundreds of millions of people
  and affects countries of origin, transit and
  destination. We need to understand better the
  causes of international flows of people and their
  complex interrelationship with development. UN
  Secretary General Kofi Annan from his report on
  strengthening the organization, 09/11/2002

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Migration Flows

• Current global estimates of migrant persons is
  around 175 million or 3 percent of the world
  population.
• Nearly 100 million out of the 175 million live in
  either Europe or North America.
• Push factors for migration include poverty, war,
  civil strife, insecurity or persecution arising
  from discrimination.
• One human being in 35 today is an international
  migrant

• Pull factors for migration include belief in
  better prospects abroad, active recruitment of
  foreign workers, bilateral agreements between
  states.
• According to IOM projections it is expected to be
  around 230 million or 2.6 percent of the total
  world population in 2050. Migration has a life of
  its own and is now a firmly established feature
  of modern life. In an increasingly integrated
  international labour market and economy,
  migration has now become an integral part of the
  phenomenon commonly referred to as globalization
  (IOM World Migration 2003).

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Development of national regulations on migration

• Worldwide the number of national laws and
  regulations increased significantly in the 90s.
• Based on the entries in the NATLEX database
  maintained by the ILO, over 100 countries enacted
  legislation or significant agreements that were
  related to migration. Reflects an increasing need
  to regulate labour migration.

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Concerns from a Rights Based Perspective

• In the process of labour migration many migrants
  have found themselves in exploitative situations
  in their host countries and even in their
  countries of origin.
• Recruitment fraud and abuse, trafficking and
  forced labour, exploitative wages, poor working
  conditions, social exclusion, and ethnic and
  racial discrimination are prevalent and continue
  to persist in the different phases of the
  migration cycle.
• Migrant workers are also likely to be vulnerable
  to issues that seriously endanger their health,
  e.g. HIV/AIDS, the outbreak of SARS, and Bird
  Flu.
• Practices such as two-week rule in HK MOU
  between Thailand and Lao PDR which implies
  automatic loss of work permit upon termination of
  employment.

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Why do we need international human rights
standards?

• Rampant state of exploitation faced by MWs
  worldwide points to the failure of governments in
  managing migration and ensuring that workers
  migrate through safe and protected channels and
  w/ their rights.
• Natl. laws/legislation often do not provide
  minimum stds of treatment to MWs, or if they do,
  they are not properly enforced monitored.
• In the current race to the bottom, govts prefer
  to export workers w/ fewer rights for fear of
  losing out in the intl. migrant trade.

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Why international standards?

• Urgent need for govts to feel pressured by a
  rights-based standard that is higher than their
  own sovereign laws.
• International standards, at the most, can force
  governments to change national laws/ regulations
  to include human rights protections, especially
  important for vulnerable populations, e.g. MWs.
• At the least, they can be used to shame govts.
  and as a tool for national and local advocacy.

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International Instruments Protecting the Rights
of Migrant Workers

• Sec.8 of the ILO Code of Practice on HIV/AIDS
  and the world of work provides as a principle
• -HIV testing should not be required at the time
  of recruitment or as a condition of continued
  employment.
• The Maternity Protection Convention 2000 (No.
  183) and C 111
• -Pregnancy testing in as much as it imposes a
  condition on women workers in the sphere of
  employment and occupation which it does impose
  upon male workers and in as much as it does not
  relate to an inherent requirement of the job,
  constitutes discrimination on the basis of sex.
• Compromising womens job opportunity/security in
  this way is highly discriminatory and puts family
  responsibility for reproduction squarely on the
  shoulders of women, instead of society as a
  whole.

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Background to the ILO System

• The 1951 Convention on Refugees which tried to
  improve the fate of refugees and establish the
  global management of this issue.
• 1919 Treaty of Versailles which laid the basis
  for the ILO in the preamble to the ILO
  Constitution states
• The standard set by law in each country
  with respect to the conditions of labour should
  have due regard to the equitable economic
  treatment of all workers lawfully resident
  therein.

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International Labour System

• The Declaration of Philadelphia concerning the
  aims and purposes of ILO adopted in 1944 (para
  III c)
• ..adequate guarantees for all concerned, of
  facilities for training and the transfer of
  labour including migration for employment and
  settlement
• The 1998 ILO Declaration on Fundamental
  Principles and Rights at Work and its Follow-up
  in the preambles states
• give special attention to the problems of
  persons with special social needs, particularly
  the unemployed and migrant workers, and mobilize
  and encourage international, regional and
  national efforts aimed at resolving their
  problems, and promote effective policies aimed at
  job creation.

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ILO Migration Conventions

• The ILO Migration for Employment Convention
  (Revised) (No. 97) and Recommendation (Revised)
  (No.86),1949.
• - 42 Countries (among which are some receiving
  countries e.g. Belgium, Brazil, France, Germany,
  Israel, Italy, Netherlands, Norway, Spain, United
  Kingdom) have ratified ILO Convention 97.
• - In As Pac. New Zealand, Sabah (Malaysia) and
  is applicable in HK SAR China.

• The Migrant Workers (Supplementary Provisions)
  Convention, (No.143) and Recommendation (No.151),
  1975.
• - ILO Convention 143 has seen only 18
  ratifications.
• - None of the 27 AsPac member states have
  ratified.

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ILO Conventions 97143

• Purpose
• To regulate the conditions in which the
  migration process takes place
• To provide specific protection for a very
  vulnerable category of workers.
• C97 aims to (deals with regular MWs)
• Protect migrant workers from discrimination and
  exploitation in 3 types of provisions
• Regulation of conditions in which migration for
  employment must occur (e.g. info. Exchange, coop.
  between employment services)

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ILO Convention 97 (cont.)

• 2) General protection provisions, (e.g.
• - the maintenance of appropriate medical
• services, art.5
• - permission for migrants for employment to
• transfer their earnings and savings, art.9
  
• - prohibits expulsion of migrant workers
• admitted on a permanent basis in the event
• of incapacity for work.
• 3) Equality of treatment MWs and nationals as
  regards laws and administrative practices on
• - living and working conditions
• - social security
• - employment taxes
• - access to justice

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ILO Convention 143 (1)

• C 143 no longer addressed the question of
  facilitating the movement of surplus labour, but
  of bringing migration flows under control, and
  hence eliminating illegal migration and
  suppressing the activities of organizers of
  clandestine movements of migrants.
• - Two parts
• 1) Articles 1-9 deals with the problems arising
  out of clandestine migration and illegal
  employment of migrants
• 2) Articles 10-14 widens the scope of equality
  between MWs and nationals from treatment to
  opportunity.

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ILO Convention 143 (2)

• The two ILO Conventions provide a basic
  framework for
• National legislation and practice on labour
  migration.
• Stipulate that States actively facilitate fair
  recruitment practices, and transparent
  consultation with their social partners.
• Reaffirm non-discrimination, establish a
  principle of equality of treatment between
  nationals and regular migrant workers in access
  to social security, conditions of work,
  remuneration and trade union membership (Patrick
  Taran Vulnerable Groups Migrant Workers 2003).

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Development of ILOs Multilateral Framework on
Migration

• March 2002 ILO Governing Body decided to place
  the question of migrant workers on the agenda of
  the 92nd Session (2004) of the ILC in the general
  discussion based on an integrated approach
  organized along 3 main themes
• 1) International labour migration in the era of
• globalization 2) policies and structures for
  more orderly migration for employment
• 3) improving migrant workers protection.
• Forced the ILO its social partners to confront
  address the current context of labour
  migration.
• Resolution to carry out an action plan on MWs.
• (ILO GB Doc. No.GB 283/2/1 283 Session Gen.,
  27/03/03)

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Development of ILOs Multilateral Framework on
Migration

• Since ILC 2004, creation of a Draft Non-Binding
  Multilateral Framework on Labour Migration.
• Recognises the need to protect all MWs,
  regardless of their status (includes undocumented
  workers and other vulnerable groups, e.g.
  domestic workers).
• Need for ILO its social partners to consult w/
  civil society migrants associations on labour
  migration policy. Crucial achievement added
  pressure on govts national TU centres to
  recognise, consult w/, provide services to MWs.

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UN Migrant Workers Convention (MWC)

• International Convention on the Protection of
  the Rights of All Migrant Workers and Members of
  their Families
• Adopted by UN Gen. Assembly on 18 December 1990.
• One of 7 core UN human rights instruments.
• The first debates and studies began in the 1970s,
  led by Mexico, Algeria, Egypt, Morocco and the
  former Yugoslavia (leaders of the G77 non-aligned
  states)
• Mediterranean and Scandinavian countries played a
  decisive role including Finland, Greece, Italy,
  Norway, Spain and Sweden.
• Other Western European States, advocating for
  zero immigration policies, provided little
  support.

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The MWC At A Glance (1)

• 93 articles divided into 9 parts and a preamble
• - Part I Scope and definitions (Art.1-6).
• - Part II Non discrimination with respect to
  rights (Art. 7).
• -Part III Human rights of all migrant workers
  and members of their families (Arts. 8-35).
• -Part IV Other rights of migrant workers and
  members of their families, who are documented or
  in a regular situation (Arts. 36-56).

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The MWC At A Glance (2)

• - Part V Provisions applicable to particular
  categories of migrants workers and members of
  their families (Arts. 57-63).
• -Part VI Promotion of sound, equitable, humane
  and lawful conditions in connection with
  international migration of workers and members of
  their families (Arts.64-71).
• -Part VII Application of the Convention (Arts.
  72-78).
• -Part VIII General Provisions (Arts. 79-84).
• - Parts XI Final Provisions (Arts. 85-93).

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Migration Context Leading up to the creation of
the MWC

• Illegal trafficking in labour was the issue which
  brought the question of migrant workers rights
  in the debate of the UN at the beginnings of the
  1970s.

• ECOSOC expressed alarm in 1972 at the illegal
  transportation to some European states organized
  by criminal elements, and at the exploitation of
  workers from some African States in conditions
  akin to slavery and forced labour (res.1706
  (LIII), preamble).

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Background to the MWC (1)

• On the 1st of July 2003 the MWC entered into
  force as International law.
• 23 long years, from the time a working group was
  first created in 1980 chaired by Mexico to the
  time it was adopted by Resolution 45/1581 of
  December 1990 at the 45th session of the General
  Assembly on 18 December 1990 and until it finally
  entered into force.
• 20 ratifications were needed for the MWC to come
  into force.
• 35 out of the 191 UN Member states have to date
  ratified the MWC, with 15 Signatories Nicaragua
  was the last to ratify.
• UN General Assembly first proclaimed 18 December
  as International Migrants day on 4th December
  2000.

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Background to the MWC (2)

• The Treaty Body has elected 10 members (14 when
  41 ratifications have been registered) to the
  Committee of experts which was formally
  instituted on the 11th of December 2003. Have
  been receiving reports since December 2004 for
  States concerned and thereafter every 5 years.
• 63 States have ratified one or more of the above
  3 international instruments.

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Special Rap on Migrant Workers

• The CHR appointed a Special Rapporteur on
  Migration Ms Gabriella Rodriguez (Costa Rica) in
  1999 for a three year term extended for another 3
  years in 2002.
• New SR from Mexico appointed for 3 year term in
  2005.

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Key features of MWC (1)

• The term migrant worker refers to a person who
  is to be engaged, is engaged, or has been engaged
  in a remunerated activity in a State of which he
  or she is not a national (Art. 2).

• Other protected categories of migrant workers
  are frontier workers seafarers, seasonal
  workers project-tied workers workers on
  offshore installations itinerant workers
  specified-employment workers and
  self-employed workers (Art. 2).

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Key features and importance of MWC (2)

• Excluded categories are Diplomats and
  international civil servants investors, refugees
  and stateless persons (unless such application is
  provided for in the relevant national legislation
  of, or international instruments in force, for
  the State party concerned) students and
  trainees seafarers and offshore workers who have
  not been able to take up a residence and engaged
  in a remunerated activity in the state of
  employment (Art. 3).

• Members of the families of migrant workers are
  persons married to migrant workers or having a
  relationship that, according to applicable law,
  produces effects equivalent to marriage, as well
  as their dependent children and other dependent
  persons who are recognized as members of the
  family by applicable legislation or applicable
  bilateral or multilateral agreements between
  states concerned (Art. 4).

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Key features and importance of MWC (3)

• Migrant workers are considered as documented or
  in a regular situation if they are authorized to
  enter, stay and to engage in a remunerated
  activity in the State of employment pursuant to
  the law of that State and to international
  agreements to which that State is a party (Art.
  5).

• Migrant workers are considered as non-documented
  or in an irregular situation if they do not
  comply with the conditions provided for in
  subparagraph (a) of the present article (Art. 5).

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Key features and importance of MWC (4)

• Puts migration in a human rights context
  provides broad human rights framework migrants
  rights are human rights.
• Sets minimum common standards for fair and humane
  treatment of migrants and their families.
• Covers civil/political/labour, and economic
  rights.
• Recognizes and affirms the basic rights of
  migrants as workers, including to fair treatment,
  right to organize /unionize and seek redress for
  grievances.
• Affirms right of undocumented migrant workers to
  be protected from abuse, and seek redress.

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Key features and importance of MWC (5)

• Affirms state responsibility in protecting
  migrant workers and their families without
  distinction of any kind such as sex, race,
  colour, language, religion or conviction,
  political or other opinion, national, ethnic or
  social origin, nationality, age, economic
  position, property, marital status, birth or
  other status (Art. I).
• Establishes principle of equality and
  non-discrimination towards migrants.
• Provides legal basis and standard for national
  law.
• Can be used to hold governments accountable,
  legally or politically.
• Helps to promote MHR at local, national, regional
  and international advocacy work if local
  national channels fail, we can appeal to the
  international community.
• The MWC is a crucial addition to existing
  international human rights instruments protecting
  migrants rights.

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Key features and importance of MWC (6)

• The scope of the MWC covers the entire migration
  process of migrant workers and members of their
  families, which comprises preparation for
  migration, departure, transit and the entire
  period of stay and remunerated activity in the
  State of employment as well as return to the
  State of origin or the State of habitual
  residence (Art.1).

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Status of Ratification

• Today, there are 35 ratifications, including only
  2 Asian governments Sri Lanka and the
  Phillippines. The latest ratifn was deposited by
  Nicaragua on 26 Oct 05.
• 15 states have signed, including only 4 Asian
  govts Bangladesh (Sept 05), Cambodia (Sept. 04),
  and Indonesia (Sept 04).

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Continuing Need For Universal Ratification

• It is significant to note that note that no
  Western or Asian migrant receiving country has
  ratified the MWC.
• The migrant population of the ratifying countries
  is estimated to be around 4.5 million,
  representing only 2.6 percent of the world total
  migrant population (as of April 2003)
• Effectively 97.4 percent migrants are deprived of
  the necessary protection that the MWC has to
  offer. Crucial for NGOs and civil society to
  continue to pressure governments (state parties)
  to comply by convention submit shadow reports.
• In other countries, urgent need to continue
  advocacy on the need to ratify the MWC, awareness
  raising on the situation of MWs, their positive
  economic social contributions to home and host
  countries, and why they urgently need more
  protective regulations.

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The Committee on the Protection of the Rights of
all MWs Members of Their Families (Committee of
Experts)

• Establishment of a 10-member experts committee,
  elected on 11 Dec.2003 from nominees put forward
  by ratifying countries.
• The experts are persons having a high moral
  standing, impartiality, and recognized competence
  in the field covered by the Convention ( MWC
  art. 72 part 1).
• Experts have a term of 4 years, with the term of
  five of the members chosen by lot to expire at
  the end of 2 years.
• 2 Asian mbrs Mr. Jose Serrano Brillantes
  (Phils-Govt) Mr. Prasad Kariyawasam (Sri
  Lanka-Govt).
• MWC provisions equips committee members to
  receive and review reports, forward
  recommendations and observations with regard to
  implementation, and formulate guidelines and
  procedures for State reporting.

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The Committee on the Protection of the Rights of
all MWs Members of Their Families (Committee of
Experts)

• Mali submitted recently its initial report under
  Article 73 of the Convention.
• It will be reviewed during the third formal
  session of the Committee that is scheduled in
  December 2005.
• NGOs are encouraged to contribute their views and
  comments to the Committee, can attend Committee
  sessions and even invited to present as experts
  do not need to be accredited to the UN to attend.
• Need to maximise this space!

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WCAR-Durban September 2001

• The Declaration and Programme of Action adopted
  at the World Conference Against Racism and
  Xenophobia (WCAR) in Durban a few days before 11
  September 2001.
• 40 paragraphs emphasizing non-discriminatory
  treatment of migrant workers, refugees and other
  non-nationals, drawing up a comprehensive and
  viable programme of action to combat xenophobia
  and discrimination against migrants.
• Caution Witnessing new measures that restrict
  the mobility of people across borders being drawn
  up by nations, in the name of national security
  in the current phase of the war against terror.
• Since Durban (2001), very poor political
  commitment by govts to follow through on the
  process 3 working groups functioning now govts
  focus on racism in general terms, and they are
  discussing less on specific groups of victims of
  racial discrimination.
• NGOs and civil society need to really step up
  advocacy, including research, documentation,
  lobbying, to revive the Durban process.

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Other Key Summits Relating to Migration

• UN World Conference To Combat Racism and Racial
  Discrimination Geneva 1978.
• UN World Conference To Combat Racism and Racial
  Discrimination Geneva 1983 (785).
• UN World Conference On Environment and
  Development (Earth Summit) Rio 1992.
• UN World Conference on Human Rights Vienna
  1993.
• UN International Conference on Population and
  Development Cairo 1994.
• UN World Summit for Social Development
  Copenhagen 1995.
• UN World Conference on Women Beijing 1995.
• UN Habitat II Istanbul 1996.

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Thank you very much!

• Sajida Ally, sajida_at_asian-migrants.org
• Executive Committee Member, MFA
• Programme Coordinator, Asian Migrant Centre
• Migrant Forum in Asia Regional Coordinator
• William Gois, mfa_at_pacific.net.hk