Fundamental rights

Migration in ACP Countries :
Promoting Development and Enhancing Protection

• Why do migrant workers need protection?
• The need for a normative framework
• ILO and International Labour Standards
• The broader normative context
 International human rights instruments
 International Convention on Migrant Workers
• Regional frameworks
• Multilateral Framework on Labour Migration


Why specific protection and policies?
Violations of migrant workers’ rights
At risk of exploitation in recruitment process

• Non-citizens and rarely benefit from full equal treatment

• Often low-skilled precarious employment
 Agriculture, domestic work, construction

• Multiple discriminations, especially women MW

• Particular risks for migrants
 Example: rates of occupational injury and death double for
foreign workers than citizens where data obtained

• More at risk if in an irregular situation

The need for a normative framework

Human beings as workers and family members are at the
heart of international labour migration
• It has long been recognized that market mechanisms alone do not
assure respect for and protection of migrants human and labour
rights
• Absence of recognition of migrants rights and lack of their
enforcement continues to entail high costs in abuse, exploitation and
violation of migrants rights and dignity, including in the workplace.
• Anti-foreigner xenophobic violence is reported on the rise in many
places around the world.


Normative Framework

• A set of international legal standards formulated over a
century recognize rights of migrants, provide for their
protection, and ground and guide formulation of labour
migration policies

• Implementation and monitoring of standards is essential to
ensure compliance and improve national law and policy

• International labour standards --agreed by ILO tripartite
constituents – are key to protecting migrants


Normative Framework

Standards on protection of migrants and governance of
migration set in five branches of international law:
• International Human Rights law, notably the nine fundamental human
rights instruments.
• International Labour Standards, all of them, except where – rarely –
foreign workers are exempted.
• Refugee and asylum law, the 1951 Convention and the 1967 Protocol
on the Status of Refugees.
• Consular Relations, namely the Vienna Convention.
• International Criminal Law, namely the Protocols on Trafficking in
persons and smuggling of migrants (of the (International Convention on
Transnational Organized Crime)


Normative Framework

Three fundamental principles in international law:
1. Core universal human rights apply to all migrants, regardless of
legal status.

2. Equality of treatment between regular migrant/immigrant
workers and nationals.

3. The broad array of International Labour Standards providing
protection in treatment and conditions at work –safety, health,
maximum hours, minimum remuneration, non-discrimination,
freedom of association, maternity, etc.―apply to all workers.


ILO Mandate and
International Labour Standards
• ILO Constitution, 1919 – principles of social justice
protecting all including “…workers when employed in
countries other than their own”

• International Labour Standards (ILS)

• ILO Declaration on Fundamental Principles and Rights at
Work, 1998

• ILO Declaration on Social Justice for a Fair Globalization,
2008


ILO Mandate and

• International labour standards generally

• Fundamental standards

• Governance standards

• Standards specifically on protection of MW


ILO supervisory system and protection
of migrant workers’ rights

• Regular supervisory system
 CEACR
 Observations and direct requests
 1999 General survey and other GS
 ILC Committee on the Application of Standards

• Representations and Complaints (Governing Body)

• Committee on Freedom of Association (GB)


ILO Mandate and

In principle, ILS cover all
workers irrespective of
nationality and immigration
status unless otherwise stated

State prerogative to regulate access to
territory and labour market


Applicable International Labour Standards

ILO Fundamental Conventions (widely ratified)
Freedom of Association and Protection of the Right to
C87 1948
Organise Convention
C98 Right to Organise and Collective Bargaining Convention 1949

C29 Forced Labour Convention 1930

C105 Abolition of Forced Labour Convention 1957

C138 Minimum Age Convention 1973

C182 Worst Forms of Child Labour Convention 1999

C100 Equal Remuneration Convention 1951

C111 Discrimination (Employment and Occupation) Convention 1958



ILO Governance standards (examples)
C81 Labour Inspection Convention 1947

C122 Employment Policy Convention 1949

ILO Conventions particularly applicable to migrant
workers
C19 Equality of Treatment (Accident Compensation) Conv'n 1925

C102 Social Security (Minimum Standards) Convention 1952

C118 Equality of Treatment (Social Security) Convention 1962

C157 Maintenance of Social Security Rights Convention 1982

C181 Private Employment Agencies Convention 1997



ILO Instruments of general application particularly
relevant to migrant workers

C95 Protection of Wages Convention 1949

C131 Minimum Wage Fixing 1970

C183 Maternity Protection Convention 2000

C121 Employment Injury Benefits Convention 1964

C169 Indigenous and Tribal Peoples Convention 1989

R200 HIV and AIDS Recommendation 2010

C189 Domestic Workers Convention (&R201) 2011



Instruments on labour migration and protection of
migrant workers

C97 Migration for Employment Convention (Revised) 1949
Migrant Workers (Supplementary Provisions)
C143 1975
Convention
R86 Migration for Employment Recommendation (Revised) 1949
R151 Migrant Workers Recommendation 1975


Migration for Employment Convention
(Revised), 1949 (No. 97)

• Historical context
 Facilitate the movement of surplus labour
• Purpose
 Protect migrant workers from exploitation and
discrimination
• Scope
 Migrant workers and their families regularly
admitted to the country of employment
• Categories of workers excluded
 Frontier workers, seafarers, members of liberal
professions and artists entering on a short-term
basis

Convention No. 97: Structure
• Regulation of conditions in which labour
migration takes place
• General protection provisions
• Non-discrimination and equality of treatment
between migrants and nationals
 Wages/ working conditions
 Trade union rights
 Accommodation
 Social security
 Employment taxes
 Access to courts

C 97: Cooperation

• Whenever necessary or desirable, conclusion
of agreements to regulate migration for
employment in cases where numbers of
migrants are sufficiently large

• Recommendation No. 86 (Annex): model
bilateral labour migration agreement


Migrant Workers (Supplementary Provisions)
Convention, 1975 (No. 143)

• Historical context

• Aims
 Facilitate and regulate labour migration flows
 Suppress activities of organizers of clandestine movements
of migrant workers
 Provide minimum protection to all migrant workers

• Structure: Flexible instrument
 Part I – Migrations in abusive conditions (Articles 1-9)
 Part II – Equality of opportunity and treatment (Articles 10-14)


C143 – Part I: Migration in abusive
conditions – Minimum standards
• Basic human rights of all MW

• Protects regular status of MW when loss of
employment
 But distinguished from “a right to stay”

• Migrants in an irregular situation :
 Equal treatment in respect of rights arising out of past
employment (e.g. remuneration, social security)
 Access to legal proceedings
 No costs on expulsion
 Possibility of regularization


C143 – Part II: National policy on equality
of opportunity and treatment

• Employment and occupation (some limitations)
• Social security (some limitations)
• Trade union rights
• Cultural rights
• Individual and collective freedoms
Excluded categories from Part II: frontier workers; artists
and members of the liberal professions entering on a short-
term basis, seafarers, trainees, persons on specific
temporary duty assignments


Consultation with social partners

• Recommendation No. 86, Para. 4(2):
 Consultation on all general questions
concerning migration for employment

• Convention No. 143, Art. 7:
 Consultation on laws and regulations and
other measures designed to prevent and
eliminate migration abuses


Ratifications
ILO migrant workers’ instruments
Convention No. 97 (1949) Convention No. 143 (1975)
50 Ratifications 23 Ratifications
Algeria, Burkina Faso, Cameroon, Kenya, Madagascar,
Malawi, Mauritius, Nigeria, Tanzania (Zanzibar), Benin, Burkina Faso, Cameroon, Guinea, Kenya,
Africa Africa
Zambia Togo, Uganda

Belize, Bahamas, Barbados, Brazil, Cuba, Dominica,
Americas and Venezuela
Ecuador, Grenada, Guatemala, Guyana, Jamaica, Saint Americas and Caribbean
Caribbean
Lucia, Trinidad and Tobago, Uruguay, Venezuela

Hong Kong (China SAR), Kyrgyzstan, Malaysia (Sabah), Philippines, Tajikistan
Asia and Pacific Asia and Pacific
New Zealand, Philippines, Tajikistan

Albania, Armenia, Belgium, Bosnia and Herzegovina,
Albania, Armenia, Bosnia and Herzegovina,
Cyprus, France, Germany, Israel Italy, The former
Cyprus, Italy, The former Yugoslav Republic of
Europe Yugoslav Republic of Macedonia, Moldova, Europe
Macedonia, Montenegro, Norway, Portugal, San
Montenegro, Netherlands, Norway, Portugal, Serbia,
Marino, Serbia, Slovenia, Sweden
Slovenia, Spain, United Kingdom


C 97 and C 143
Key features
• Do not affect the prerogative of States to determine
admission for employment
• Relevant for both countries of destination and origin
• Taken together, C97 and C143 recognize that
 Migrant workers, including those in an irregular situation, have
basic human and labour rights
 Once admitted to employment, regular migrant workers should
enjoy equal treatment with nationals
 The social consequences need to be addressed
E.g. facilitation of family reunification (C143 and R151)
 The labour migration process needs to be regulated within a
rights-based rule of law framework


International Human Rights System

International
human
rights system

UN Charter-
Treaty-based
based

Human Rights
Treaty bodies
Council

Special
Procedures

Universal
Periodic
Review (UPR)


International human rights law / system

• Nine core human rights treaties

• Important work of human rights treaty bodies
 Opinions on application of rights to migrant workers
 Landmark general comments / recommendations
High Refugees Council (HRC) – CESCR – CERD – CMW

• Special Procedures mandates
 UN Special Rapporteur on human rights of migrants

• Universal Periodic Review (UPR)


International Legal Framework
International Human Rights instruments
• Universal Declaration of Human Rights (UDHR) 1948
Nine core international human rights treaties
International Covenant on the Elimination of Racism and
 ICERD 1965
Discrimination
 ICCPR International Covenant on Civic and Political Rights 1966
International Covenant on Economic, Social and Cultural
 ICESCR 1966
Rights
Committee on the Elimination of Discrimination Against
 CEDWA 1976
Women
 CAT Convention Against Torture 1984

 CRC Convention on the Rights of Children 1989

International Convention on the Protection of the Rights
 ICRMW 1990
of All Migrant Workers and Members of Their Families

 CRPD Convention on the Rights of Persons with Disabilities 2006


Non-discrimination and key rights
• Universal principle of non-discrimination
 Nationals and non-nationals alike with few exceptions

• Some rights of particular relevance to MW and
their families:
 Right to leave/enter/return to one’s own country -
ICCPR
 Rights to freedom of assembly and association- ICCPR
and ICESCR
 Rights to equal work and employment conditions-
ICESCR
 Rights to education and health – ICESCR
 Right to family life – ICCPR and ICESCR

Human rights treaty bodies

• Monitor application of human rights treaties in
States parties

• Adopt General Comments / Recommendations
on interpretation of instruments

• Some bodies hear individual (and inter-state)
complaints


1990 Convention on Migrant Workers
Key features
• Comprehensive instrument
• Does not affect right of State Party to establish criteria governing
admission of MW and members of their families (Part VII, Art. 79)
• Protects basic rights of all MW and their families on the basis of
equality with nationals (Part III)
• Grants regular migrants additional rights on the basis of equality
with nationals (Part IV)
• States must cooperate in promoting sound equitable, humane and
lawful migration conditions (Part VI)
• Monitoring mechanism – Committee on Migrant Workers (Part VII)


UN Convention on Migrant Workers, 1990
Application – Committee on Migrant Workers

• 16 sessions since March 2004

• States parties to submit initial (after 1 year) and periodic
reports (after 5 years)
 Concluding Observations (22 so far)
 Optional individual and inter-State complaint mechanisms
 Individual complaints (art 77) not yet in force

• General Comments
 General Comment No. 1 on Migrant Domestic Workers (February 2011)
 Second General Comment on the rights of migrant workers and their
families in an irregular situation in process

http://www2.ohchr.org/english/bodies/cmw/

UN Convention on Migrant Workers, 1990
Ratifications
Ratifications Signatories
43 State Parties 14 State Parties
Algeria, Burkina Faso, Cape Verde,
Egypt, Ghana, Guinea, Lesotho, Libya,
Benin, Cameroon, Comoros, Congo,
Africa Mali, Mauritania, Morocco, Niger, Africa
Gabon, Guinea-Bissau, Liberia, Sao
Nigeria, Rwanda, Senegal, Seychelles,
Tome and Principe, Sierra Leone, Togo
Uganda
Argentina, Belize, Bolivia, Chile,
Colombia, Ecuador, El Salvador,
Americas and
Americas and Guatemala, Guyana, Honduras, -
Caribbean
Caribbean Jamaica, Mexico, Nicaragua, Paraguay,
Peru, St. Vincent and the Grenadines,
Uruguay
Bangladesh, Kyrgyzstan, Indonesia, Asia and Pacific Cambodia, Indonesia
Asia and Pacific Philippines, Sri Lanka, Tajikistan,
Timor-Leste

Europe Montenegro, Serbia
Albania, Azerbaijan, Bosnia and
Europe
Herzegovina, Turkey

Middle East -
Middle East Syria


Regional frameworks:
Binding and non-binding instruments
• Africa
 African Charter on Human and Peoples’ Rights 1981
 Regional integration regimes
e.g. Economic Community Of West African States (ECOWAS), South African
Development Community (SADC)
 AU Migration Policy Framework for Africa 2006
• Americas – American Convention on Human Rights 1969
• Middle East – Arab Charter on Human Rights 2004
• Asia – ASEAN - Association of Southeast Asian Nations Declaration on the Protection
and Promotion of the Rights of Migrant Workers, 2007
• Europe
 Council of Europe instruments - European Convention on Human Rights (ECHR), European
Securities Committee (ESC), European Convention on the Legal Status of Migrant Workers
(ECLSMW)
 Regional integration - European Union
Free movement of EU workers / citizens
EU law and policy on asylum and (labour) migration from third countries


The Case for a Multilateral Framework on
Labour Migration*
• Need for new tools and clear rules for governance of
labour migration in light of expansion and increasing
complexity of international migration
• Some countries reluctant to ratify legally binding
Conventions
• Risk of lowering existing standards
• New developments
 Greater role of private sector and private employment services
 Feminization of labour migration
 Growth of irregular migration
 Proliferation of temporary labour migration schemes
 Emphasis on relationship between migration and development


ILO Multilateral Framework on
Labour Migration (2006)
• Identified in Plan of Action for migrant workers
adopted by ILC, June 2004

• Objective in PoA: develop “a non-binding multilateral
framework for a rights-based approach to labour
migration, which takes account of labour market
needs”

• Framework drawn up by Tripartite Meeting of Experts
and approved by ILO GB in March 2006
 international principles and guidelines illustrated by 132 “best
practices” in 9 areas
 http://www.ilo.org/public/english/protection/migrant/download
/multilat_fwk_en.pdf


ILO Multilateral Framework on Labour Migration
Follow-up
• Framework translated, widely circulated and publicized

• Efforts mobilized to support PoA and Framework

• The Framework has been used as guide for developing national
labour migration policies in Bangladesh, Kenya, Nepal, Nigeria, Sri
Lanka, Zimbabwe and other countries

• Principles and guidelines incorporated into ILO DWCPs and TC
projects

• Work with trade unions, employers and civil society to promote
Framework implementation

• The MLF offers a comprehensive, relevant and useful guide for
elaboration of law and policy in PNG


Conclusions

• Greater awareness of application of human rights
to all migrant workers and their families
 “Migrants’ rights are human rights”
 Enhanced work of Human rights treaty bodies and the ILO
supervisory bodies
 UN Special Rapporteur
 Focus of Trade union concern
 CSO and NGO action
 Migrant organizing
• Steady progress in acceptance of international
standards on Migrant Workers
• Importance of regional legal frameworks and case
law


Fundamental rights

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