Rights%20of%20Migrant%20Workers

1
Rights of Migrant Workers

• OAS, Washington, 6 March 2008
• Armand F. Pereira
• and Piyasiri Wickramasekara,
• in collaboration with
• Kaat Landuyt, Riszard Cholewinski Ibrahim Awad
  and Patrick Karan et al.

2
Structure of presentation

• UN and ILO roles and instruments
• Definitions
• Instruments specific to migrant workers
• UN and ILO labour standards
• Core labour standards
• Migrant worker standards
• Other applicable standards
• Elements for a policy agenda beyond standards
• Gaps and remedies
• ILC 2004 Resolution
• ILO Multilateral framework on labour migration
• Key messages
• Way forward

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Structure/contents of ILO paper

• General context
• Protection central to the agendas of OAS
• Historical developments regarding rights of
  migrant workers
• Three major international instruments
• Key aspects of the three major Conventions
• Principle of non-discrimination in application of
  human and labor rights
• Elements for a policy agenda
• Conclusions
• Annex 1 ILOs International Labor Standards
  concerning migrant workers (lists of standards
• and an annotated summary of ILO Conventions 97
  and 143 and related Recommendations 86 and 151.
• Annex 2 UN Standards related to migrant workers
• Annex 3 Ratifications of international
  instruments on migration / migrant workers
  rights
• Annex 4 ILOs International Labor Migration
  Program (MIGRANT)

4
Different levels of International, regional and
national instruments

• International labour law
• International human rights law
• International criminal law
• Regional standards
• National law

5
ILOs role

• ILO Constitution (principles of social justice
  protecting persons in their working environment,
  including those in a country other than their
  own)
• Art. 427 of Treaty of Versailles, 1919
• Preamble of ILO Constitution, 1919
• Recommendation No. 2, 1919
• Declaration of Philadelphia, 1944
• Declaration on Fundamental Principles and Rights
  at work, 1998
• Fundamental Conventions (a subset of Fund. HR)
• Other conventions
• Complaints based Supervisory Bodies (CFA, CEACR)

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UNs Role

• International human rights law
• International Bill of Human Rights
• Universal Declaration of HR 1948
• Covenant on CivilPolitical Rights 1966
• Covenant on Economic, Social and Cultural Rights
  1966

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IHR law key principles

• Universal human rights instruments apply to all
  persons irrespective of nationality and legal
  status e.g. UDHR, ICCPR, ICESCR. Few exceptions
• _ Political rights
• _ Free movement within a country limited to
  lawfully resident migrants
• _ Limited procedural safeguards for irregular
  migrants in the expulsion
• process (contrast Article 13 ICCPR with Article
  22 ICRMW)
• _ ICESCR applies to non-nationals, including
  irregular migrants

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ILO Fundamental Conventions

• ILO Declaration on fundamental principles and
  rights at work and its follow-up (1998)
• Freedom of Association and the Protection
• of the Right to Organize Convention, 1948 (No.
  87)
• Right to Organize and Collective Bargaining
• Convention, 1949 (No. 98)
• Forced Labour Convention, 1930 (No. 29)
• Abolition of Forced Labour Convention, 1957 (No.
  105)
• Minimum Age Convention, 1973 (No. 138)
• Worst Forms of Child Labour Convention, 1999 (No.
  182)
• Equal Remuneration Convention, 1951 (No.100)
• Discrimination (Employment and Occupation)
  Convention, 1958 (No.111)
• There are frequent violations of these standards
  even for workers in regular status.

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Supervisory machinery and complaints procedures
of ILO vs. UN Conventions

• ILOs 8 Fundamental HR Conventions (Treaties)
• all Member States regardless of ratification have
  obligations to make progress in application.
• All ILO Conventions are legally binding upon
  ratification.
• Two supervisory bodies receive complaints from
  Constituents (Govts, Employers orgs,
  Workersorgs) and other organizations.
  Individual complaints are receivable if backed by
  ILO constituents.
• UNs 9 International HR Conventions (Treaties)
• Only 7 of the 9 Convs have monitoring bodies.
• Only 4 of these bodies (CCPR, CERD, CAT, CEDAW)
  can receive individual complaints (other bodies
  can handle state-to-state complaints).
• The MW Convention has a provision for individual
  complaints but it is not yet operative.

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MW UN Definition

• UN MW Convention 1990
• For the purposes of the present Convention,
  migrant workers and members of their families
• a. Are considered as documented or in a regular
  situation if they are authorized to enter, to
  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
• b. 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.

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MW ILO definition

• E)Migrant worker in regular or lawful status a
  person who
• (a)    has been granted the requisite
  authorizations in respect of departure from his
  or her State of nationality or habitual residence
  and in respect of employment in another State
  where such authorizations are required, and
• (b)    who complies with the procedural and
  substantive conditions to which his or her
  departure and employment in another State are
  subject.
• (Im)Migrant worker in irregular or unlawful
  status
• a person who
• (a)   has not been granted an authorization of
  the State on whose territory he or she is present
  that is required by law in respect of entry, stay
  or employment, or
• (b)   who has failed to comply with the
  conditions to which his or her entry, stay or
  employment is subject.
•  
• Source ILO Conventions 97 and 143 ILO paper,
  Symposium on Undocumented/Irregular Migration,
  Bangkok, 1999, etc.

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Why migrant workers need special protection

• International status employed in countries other
  than their own .
• Increasing mobility (28-29 million MW in OAS
  region by 2010
• Social justice considerations
• Migrants among particularly vulnerable groups of
  workers (identified as such in the ILO
  Constitution, the UN HR instruments, the 1998
  ILO Declaration, etc.
•  Decent Work   for all workers including
  migrants IV Summit of the Americas (2005) ICLM
  (2004), ILOs Regional Conf. (2006) ECOSOC
  (2006-07).

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International protection regime

• Migrant-specific instruments
• International charter on labour migration
• the UN International Convention on the Protection
  of Rights of All Migrant Workers and Members of
  Their Families, 1990.
• the ILO Migrant Workers (Supplementary
  Provisions) Convention, 1975 (No. 143)
• the ILO Migration for Employment Convention of
  1949 (No. 97).
• Instruments related and/or applicable to migrants
• UN Convention against Transnational Organized
  Crime, 2000
• Protocol to prevent, suppress and punish
  trafficking in persons,
• especially women and children
• Protocol against the smuggling of migrants by
  land, sea and air
• Fundamental conventions of the ILO
• Other relevant ILO Conventions
• Other UN general human rights instruments

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Migrant-Specific ILO instruments

• Migration for Employment Convention (Revised),
  1949 (No. 97) - Migration for Employment
  Recommendation (Revised), 1949 (No. 86)
• Migrant Workers (Supplementary Provisions)
  Convention, 1975 (No. 143) - Migrant Workers
  Recommendation, 1975 (No. 151)

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ILO Conventions on migrant workers

• C97 applies only to those regularly admitted
  (excludes frontier workers, seafarers, short term
  liberal professionals)- responding to post-war
  realities ensuring adequate migration and
  employment policies adequate information .
• C143- Deals with issue of bringing migration
  flows under control and hence eliminating
  irregular migration and suppressing activities of
  organizers of clandestine movements of migrants
• - 2 parts States can opt to ratify Part I or
  Part II or both.
• Part I (Articles 1-9) deals with problems arising
  out of clandestine migration / illegal employment
  of migrants
• Part II (Articles 10-14) substantially widens the
  scope of equality between migrant workers in a
  regular situation and nationals, in particular by
  extending it to equality of opportunity.

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Ratifications of international instruments on
migration / migrant workers rights (31 Oct 2007)

• ILO Migration for Employment Convention No. 97 of
  1949.
• ILO Migrant Workers (Supplementary Provisions)
  Convention No. 143 of 1975.
• UN Convention on the Protection of the Rights of
  All Migrant Workers and Members of Their Families
  of 1990.
• Status (ratifications, signatories)
• ILO Convention 97 Ratif. 47 Americas 15
• ILO Convention 143 Ratif. 23 Americas 1
  (Venezuela)
• UN Convention, 1990 State Parties 37
  (Non-ratified signatories 14) (Americas
  13)
• Summary 54 States have ratified one or both of
  the ILO conventions.
• 78 States have ratified one or more of these
  three instruments.
• Argentina, Belize, Bolivia, Chile, Colombia,
  Ecuador, El Salvador, Guatemala, Honduras,
  Mexico, Nicaragua, Peru and Uruguay

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Conv. 143 - Part I Provisions

• Respect basic human rights of all migrant workers
  Article 1.
• To determine and suppress clandestine movement
  and the illegal employment of migrant workers
• To punish the employers of such workers,
  organizers of such movements and those assisting-
  administrative, civil and penal sanctions
  including imprisonment
• Protective measures for migrant workers who have
  lost employment (against irregular status) or who
  are in an irregular situation

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C 143 Part II - Equality of Oport treatment

• Equality of treatment for rights arising from
  past employment regarding remuneration, social
  security other benefits. Art.9 (1)
• Right to due process in respect of disputes
• Cost of expulsion not to be borne by the worker.
• States are free to regularize such workers.

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UN Migrant Workers Convention

• Part III on the human rights of all migrant
  workers and
• members of their families
• Reiterates that fundamental civil and political
  rights and economic and
• social rights apply to all migrants
• All migrant workers and their families to have
  equal treatment with
• nationals regarding following economic and social
  rights
• _ Conditions of work /terms of employment
  (Article 25)
• _ Trade unions rights (Article 26) but no express
  right to form trade unions
• _ Social security (Article 27)
• _ But linked to national legislation applicable
  bilateral /multilateral treaties
• _ Emergency medical treatment (Article 28) cannot
  be refused because of irregularity of stay
  /employment
• _ Access to education for migrant children
  (Article 30) cannot be refused because of
  irregularity of stay /employment
• Part III is also seen as a means of preventing
  irregular migration

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UN Migrant Workers Convention

• Part III is also seen as a means of preventing
  irregular migration
• Part VI promotion of sound, equitable, humane
  and lawful conditions regarding international
  labour migration
• State obligation to consult /cooperate to ensure
  labour migration takes place in humane and sound
  conditions
• Provisions for sanctions against smugglers,
  traffickers and employers
• Protection of the human rights of irregular
  migrants

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Principle of non-discrimination in the
application of human and labor rights standards

• UN HR and ILO standards are applicable to ALL
  workers regardless of status unless otherwise
  specifed.

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Other ILO Conventions especially relevant to
migrant workers

• Safety and Health in Agriculture Convention, 2001
  (No. 184).
• Private Employment Agencies Convention, 1997
  (No. 181)
• Protection of Wages Convention, 1949 (No. 95)
• Working Conditions (Hotels Rest) Conv, 1991,
  (No. 172)
• Labour Inspection Convention, 1947 (No. 81),
• Plantations Convention, 1958 (No. 110)
• Equality of Treatment (Social Security) Conv,
  1962 (No. 118)
• Maintenance of Social Security Rights Conv, 1982
  (No. 157)
• Employment Policy Convention, 1964 (No. 122).
• Minimum Wage Fixing Convention, 1970 (No. 131)
• Occupational Safety and Health Convention, 1981
  (No. 155),
• Occupational Health Services Convention, 1985
  (No. 161),
• Safety and Health in Construction Conv, 1988
  (No. 167)
• (see ILO paper, ref ILO Multilateral Framework)

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Resolution on a fair deal for migrant workers in
a global economyILO International Labour
Conference 2004

• providing due consideration to the particular
  problems faced by migrant workers in irregular
  status and the vulnerability of such workers to
  abuse
• ensuring that the their human rights and
  fundamental labour rights are effectively
  protected, and that they are not exploited or
  treated arbitrarily
• following best practice guidelines on preventing
  and combating irregular labour migration
  including amnesties and regularisations to be
  developed.

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ILO Multilateral framework on Labour Migration

• Objectives Better management of migration,
  protection of workers, and promoting
  migration-development linkages
• A framework of nonbinding guidelines and
  principles for policies based on best practices
  and international standards.
• Rights-based approach
• in accordance with international norms and
  principles, while recognizing sovereignty of
  States to determine their migration policies.
• 15 broad principles and corresponding guidelines
  compilation of best practices (132 )
• A tool kit for guiding migration policies in
  countries.
• Framework adopted by Meeting of Experts in
  November 2005 ( ILO Governing Body to approve it
  this month)

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Multilateral Framework-Principles relevant to
irregular migration

• 8. The human rights of all migrant workers,
  regardless of their status, should be promoted
  and protected. In particular, all migrant workers
  should benefit from the principles and rights in
  the 1998 ILO Declaration on Fundamental
  Principles and Rights at Work and its Follow-up,
  which are reflected in the eight fundamental ILO
  Conventions, and the relevant United Nations
  human rights Conventions.
• 9. (a) All international labour standards apply
  to migrant workers, unless otherwise stated.
  National laws and regulations concerning labour
  migration and the protection of migrant workers
  should be guided by international labour
  standards and other relevant international and
  regional instruments.
• 10. The rights of all migrant workers which are
  referred to in principles 8 and 9 of this
  Framework should be protected by the effective
  application and enforcement of national laws and
  regulations in accordance with international
  labour standards and applicable regional
  instruments.
• 11. Governments should formulate and implement,
  in consultation with the social partners,
  measures to prevent abusive practices, migrant
  smuggling and trafficking in persons they should
  also work towards preventing irregular labour
  migration.

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Specific guidelines- MFW

• 4.4. implementing policies that ensure that
  specific vulnerabilities faced by certain groups
  of migrant workers, including workers in an
  irregular situation, are addressed.
• 8.1. governments should ensure that national laws
  and practice that promote and protect human
  rights apply to all migrant workers and that they
  are respected by all concerned
• 8.4.2. protect migrant workers from conditions of
  forced labour, including debt bondage and
  trafficking, particularly migrant workers in an
  irregular situation or other groups of migrant
  workers who are particularly vulnerable to such
  conditions
• 9.2. adopting measures to ensure that all migrant
  workers benefit from the provisions of all
  relevant international labour standards in
  accordance with principles 8 and 9 of this
  framework
• 9.5. adopting measures to ensure that all migrant
  workers, including those in an irregular
  situation, who leave the country of employment
  are entitled to any outstanding remuneration and
  benefits which may be due in respect of
  employment and as applicable are given a
  reasonable period of time to remain in the
  country to seek a remedy for unpaid wages
• 9.9. entering into bilateral, regional or
  multilateral agreements to provide social
  security coverage and benefits, as well as
  portability of social security entitlements, to
  regular migrant workers and, as appropriate, to
  migrant workers in an irregular situation

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MFW guidelines - continued

• 10.5. providing for effective remedies to all
  migrant workers for violation of their rights,
  and creating effective and accessible channels
  for all migrant workers to lodge complaints and
  seek remedy without discrimination, intimidation
  or retaliation
• 11.1. adopting and implementing legislation and
  policies to prevent irregular labour migration
  and eliminate abusive migration conditions,
  including the trafficking of men and women
  migrant workers
• 11.3. implementing effective and accessible
  remedies for workers whose rights have been
  violated, regardless of their migration status,
  including remedies for breach of employment
  contracts, such as financial compensation
• 11.4. imposing sanctions and penalties against
  individuals and entities responsible for abusive
  practices against migrant workers
• 14.4. establishing policies and mechanisms to
  allow migrant workers to improve their legal
  status 14.4. given the particular problems faced
  by irregular migrant workers or other vulnerable
  migrant workers as a result of their status,
  considering the implementation of policy options
  referred to in Convention No. 143 and its
  accompanying Recommendation No. 151

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Key Messages

• Irregular migration cannot be discussed
  independently of regular migration, and should be
  treated as part a broader labour market issue and
  not only as a legal and security issue.
• Migration under irregular conditions exposes
  workers to worst forms of abuse and exploitation,
  and such migration should be minimised.
• All of the ILOs instruments (Conventions,
  Recommendations, codes of practice) apply to
  both nationals and all migrant workers.
• Basic human rights and core labour rights of all
  migrant workers including those in irregular
  status should be respected. ILO C143 and the ILO
  Declaration.
• Standards are not enough effective enforcement
  and access to redress mechanisms are imperative.
• All stakeholders source and receiving country
  govts., social partners, civil society, and
  migrants - need to cooperate in reducing
  irregular migration and ensuring protection of
  their rights.

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Way forward

• Rights-based ILO Multilateral framework is
  non-binding How to promote application of its
  principles and guidelines, especially in
  receiving countries?
• Strengthening cooperation between NGOs and trade
  union movement in addressing problems of workers
  in irregular status.
• Improving access to justice and redress
  mechanisms essential.
• Addressing root causes Reduce migration
  pressures in sending countries through creation
  of decent work address irregular employment and
  undeclared work in receiving countries.