Rights of Migrant Workers

1. Rights of Migrant Workers OAS, Washington, 6 March 2008 Armand F. Pereira and Piyasiri Wickramasekara, in collaboration with Kaat Landuyt, Riszard CholewinskiIbrahim 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

3. 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: ILO’s 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: ILO’s 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. ILO’s 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)

6. UN’s Role • International human rights law • International Bill of Human Rights • Universal Declaration of HR 1948 • Covenant on Civil+Political Rights 1966 • Covenant on Economic, Social and Cultural Rights 1966

7. 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

8. 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.

9. Supervisory machinery and complaints procedures of ILO vs. UN Conventions • ILO’s 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 (Govt’s, Employers’ org’s, Workers’org’s) and other organizations. Individual complaints are receivable if backed by ILO constituents. • UN’s 9 International HR Conventions (Treaties) • Only 7 of the 9 Conv’s 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.

10. 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.”

11. 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.

12. 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), ILO’s Regional Conf. (2006); ECOSOC (2006-07).

13. 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

14. 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)

15. 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.

16. 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

17. 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

18. 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.

19. 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

20. 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

21. 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. • UN HR Charter • ILO jurisprudence (CEACR) • ILC • Inter-American court of HR, 17 Sep 2003

22. 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)

23. 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.

24. 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)

25. 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.

26. 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

27. 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;

28. 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 ILO’s 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.

29. 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.