Expert Group Meeting Human Trafficking & Global Supply Chain Normative Framework

1. Expert Group Meeting Human Trafficking & Global Supply Chain Normative Framework Ankara, 12-13th November 2012

2. Objectives International Legal Framework Regional Legal Frameworks Supplementary ways of protecting rights of migrants

3. InternationalLegalFramework • ILO International Labour Standards • International Human Rights Law • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990

4. International Legal FrameworkILO International Labour Standards • ILO Constitution espouses principles of social justice protecting persons in their working environment including those “in a country other than their own” • International labour law comprises numerous Conventions and Recommendations, which in principle are applicable to all workers irrespective of nationality and immigration status • ILO Declaration on Fundamental Principles and Rights at Work 1998 • Member States must adhere to principles in the 8 core ILO Conventions (which address forced labour, elimination of child labour, trade union rights, and non-discrimination) even when they have not ratified the instrument/s in question • Specific instruments protecting migrant workers

5. International Legal FrameworkILO International Labour Standards ILO Convention No. 97 (1949) ILO Convention No. 143 (1975) 49 States parties Only applicable to lawfully resident migrant workers Recruitment and orderly migration of foreign workers Equal treatment with nationals in respect of wages and working conditions, trade union rights, social security, accommodation, access to courts 23 States parties Protects basic human rights of all migrant workers, including irregular migrants Specifically, the rights of irregular migrants arising out of past employment (unpaid wages, social security) are safeguarded Principle of equal treatment of regular migrants with nationals

6. International Legal FrameworkHuman Rights Instruments • Nine international human rights treaties currently in force • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965 • International Covenant on Civil and Political Rights (ICCPR) 1966 • International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984 • Convention on Rights of the Child (CRC) 1989 • International Convention on the Protection of the Rights of All Migrant Workers and Members of the Their Families (ICRMW) 1990 • Convention on the Rights of Persons with Disabilities (CRPD) 2006 • International Convention for the Protection of All Persons from Enforced Disappearance (CPED) 2006

7. International Legal FrameworkNon Discrimination and Key Rights • Universal principle of non-discrimination • Human rights applicable to nationals and non-nationals alike with few exceptions (e.g. political rights) • Some rights of particular relevance to migrant workers and their families, for example: • Right to leave one’s own country and enter/ return to that 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

8. Important role of human rights treaty bodies • Monitor the application of human rights treaties in States parties by considering periodic reports • Inter-State and individual complaints mechanisms • Issue General Comments/ General Recommendations on interpretation of instruments, e.g. • HRC General Comment 15 on the position of aliens under the ICCPR (1986) • CERD General Recommendation 30 on discrimination against non-citizens (2004) • CRC General Comment 6 on unaccompanied minors and separated children outside their country of origin (2005) • CEDAW General Recommendation 26 on women migrant workers (2008) • CESCR General Comment 20 on non-discrimination in economic, social and cultural rights (art. 2, para. 2) (2009) • CMW General Comment 1 on migrant domestic workers (2010)

9. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families • Adopted by UN General Assembly – 18 December 1990 • Entrered into force – 1 July 2003 • 45 States parties to date: • Albania, Algeria, Argentina, Azerbaijan, Bangladesh, Belize, Bolivia, Bosnia-Herzegovina, Burkina Faso, Cape Verde, Chile, Colombia, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea, Guyana, Honduras, Jamaica, Kyrgyzstan, Lesotho, Libyan Arab Jamahiriya, Mali, Mauritania, Mexico, Morocco, Nicaragua, Niger, Nigeria, Paraguay, Peru, Philippines, Rwanda, Saint Vincent and the Grenadines, Senegal, Seychelles, Sri Lanka, Syrian Arab Republic, Tajikistan, Timor-Leste, Turkey, Uganda and Uruguay • 17 States that have signed (but not yet ratified) to date: • Benin, Cambodia, Cameroon, Comoros, Congo, Gabon, Guinea-Bissau, Indonesia, Liberia, Montenegro, Mozambique, Sao Tome and Principe, Serbia, Sierra Leone and Togo

10. 1990 Convention General features • Comprehensive instrument applicable to the whole migration process and regulating the legal status of migrant workers and their families • Protects the basic rights of all migrant workers and their families (lawfully resident and irregular migrants) on the basis of equality with nationals (Part III) • Grants regular migrants a number of additional rights on the basis of equality with nationals (Part IV)

11. Convention structure • Part I – Scope and definitions • Part II – Non-discrimination with respect to rights • Part III – Human rights of all migrant workers • Part IV – Other rights of regular migrants • Part V – Rights of particular categories of migrant workers • Part VI – State cooperation/ obligations in promoting sound, equitable, humane and lawful migration conditions • Part VII – Application of Convention • Part VIII – General Provisions • Part IX – Final Provisions

12. Groups of migrants covered • Migrant workers and members of their families • Family members defined to include common law spouses, dependent children and other dependent persons • Persons to be engaged or who have been engaged in employment • Lawfully resident and irregular migrants • Specific groups of (temporary) migrant workers • e.g. seasonal workers/ project-tied workers • But not certain categories of foreigners • e.g. diplomats, international organization officials, students or trainees, refugees, investors

13. Rights covered: Civil and Political Rights • Civil and political rights • E.g. freedom from cruel, inhuman or degrading treatment, slavery, forced labour - Arts 10-11 • Procedural protection against individual expulsion applicable to all migrant workers – Art. 22 • Employment rights • Rights to equal work/ employment conditions with nationals – Art. 25 • Trade union rights (freedom of association) • to join existing trade unions - Part III, Art. 26 • to form own trade unions and associations for promotion and protection of their interests - Part IV, Art. 40 • Rights arising out of past employment • Remuneration (past wages) – Art. 25(3) • Social security – Art. 27

14. Economic, social and cultural rights • All migrant workers and their families (including irregular migrants) • Emergency medical care – Art. 28 • Equal access with nationals to education – Art. 30 • Primary education not to be refused to children of irregular migrants • Respect for cultural identity – Art. 31 • Lawfully resident migrant workers and families only • Equal access with nationals to housing - Art 43(1)(d) • Equal access to social and health services - Art 43(1)(e) • Family reunification – Art. 44 • Access to employment – Arts 52, 53

15. Migrant-specific rights • Effective protection by the State against violence, physical injury, threats and intimidation – Art. 16(2) • Prohibition on confiscation and destruction of identity and travel documents (e.g. passports) – Art. 21 • Recourse to protection and assistance of consular/ diplomatic authorities of State of origin – Art. 23 • Transfer of earnings and savings (i.e. remittances) – Art. 32 • Free provision of information on Convention rights and conditions of admission and, as far as possible, in a language migrants can understand – Art. 33

16. Inter-statecooperation (Part VI) • States have obligations to • consult and cooperate to promote sound, equitable and humane migration conditions – Art. 64(1) • collaborate to prevent and eliminate irregular migration – Art. 68 • punish traffickers, smugglers and those who exploit migrant workers (e.g. employers) – Art. 68(1)-(2) • see also ILO Convention No. 143 (1975) and the Trafficking and Smuggling Protocols supplementing the UN Convention against Transnational Organized Crime 2000 (Palermo Convention)

17. “State sovereignty” clause(Part VIII, Art 79) “Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families. Concerning other matters related to their legal situation and treatment as migrant workers and members of their families, States Parties shall be subject to the limitations set forth in the present Convention.”

18. Application of Convention (Part VII) • Migrant Workers Committee http://www2.ohchr.org/english/bodies/cmw/ • 16 sessions held to date, commencing in March 2004 • States parties are required to submit initial reports (after one year) and then periodic reports (after 5 years) on application / implementation of Convention • Committee issues Concluding Observations on a number of reports • Committee adopted General Comment No. 1 on Migrant Domestic Workers • Optional individual and inter-State complaint mechanisms • Guatemala and Mexico have made the declaration under Article 77 recognizing the competence of the Committee to receive and consider individual complaints (but this mechanism can only come into force when 10 states parties have made such a declaration)

19. Obstacles to its ratification • Practical/ Administrative • Inadequate knowledge of the Convention • Implementation • Length and complexity of instrument • Requires resources and coordination between different government departments • Legal/ Political • Explicit safeguards for irregular migrant workers • Argument that migrant workers’ rights are adequately protected by other human rights instruments • Relevance – i.e. changes to labour migration landscape in the era of globalization • General lack of political will

20. 12 Reasons to Ratify To put in place the legal foundation essential for national migration policy to regulate labour migration and ensure social cohesion To uphold and strengthen the rule of law by ensuring that legal norms define the basis of labour migration policy, its implementation, and its supervision To contribute to ensuring that legal parameters define treatment of all persons on the territory of a country by setting the extent and limits of human rights of migrant workers and members of their families To signal that origin countries demand respect for the human rights of their nationals abroad and are accountable for the same standards as destination countries To reinforce the sovereign exercise of a State’s prerogative to determine labour migration policy by affirming conformity with universal legal and ethical norms To obtain public support for and compliance with labour migration policy and practice by demonstrating legal soundness and conformity with internationally accepted principles of social justice and human rights

21. 12 Reasons to Ratify (cont.) 7.To strengthen social cohesion by establishing that all persons must be treated with respect by virtue of legal recognition and protection of their rights 8. To explicitly discourage the ‘commodification’ and consequent abuse of migrant workers by legally asserting their human rights 9. To reduce irregular migration by eliminating incentives for labour exploitation, work in abusive conditions and unauthorised employment that fuel trafficking in persons and smuggling of migrants 10. To facilitate the establishment of effective national policy by calling on advisory services as well as good practice examples provided by the relevant standards-based international organisations 11. To obtain clear guidance for bilateral and multilateral cooperation for lawful, humane, and equitable labour migration 12. To obtain international guidance on implementation of legal norms through the reporting obligations and periodic review by independent expert bodies Guide on Ratification, Steering Committee, 2009

22. 20th Anniversary Ratification Campaign Website www.migrantsrights.org

23. RegionalLegal Frameworks • Africa • African Charter on Human and Peoples’ Rights 1981 • Free movement regimes (e.g. ECOWAS, 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 Declaration on the Protection and Promotion of the Rights of Migrant Workers (13 January 2007) • Europe • Council of Europe standards • European Union • Free movement of EU workers regime • Developing EU law and policy on asylum and migration from third countries

24. Regional Legal Framework • European Convention on the Legal Status of Migrant Workers 1977 • Only applicable to lawfully resident migrant workers from other Contracting parties (Art. 1) • Equal treatment with nationals in defined areas • Housing, education, conditions of work, social security, social and medical assistance, access to courts and administrative authorities, right to organize • Other safeguards relating to • Work and residence permits, information, reception conditions, family reunion, re-employment, return • Ratified by 11 States parties • Albania, France, Italy, Moldova, Netherlands, Norway, Portugal, Spain, Sweden, Turkey, Ukraine • Only Albania, Moldova, Turkey and Ukraine are not EU/EEA countries

25. Supplementary Ways of Protecting Migrants’ Rights • UN Special Rapporteur on the human rights of migrants • Non binding global and regional consultative processes • ILO Multilateral Framework on Labour Migration • Global Forum on Migration and Development (GFMD) • Colombo Process • Protection through national provisions in countries of origin • E.g. regulation and close supervision of private recruitment • By emphasizing legal status of migrant workers in bilateral agreements / arrangements • Equitable standard employment contracts before departure • Equal work and employment conditions with nationals

26. Supplementary Ways Special Rapporteur on the human rights of migrants • Thematic rapporteurship set up in 1999 (and renewed twice) by Commission on Human Rights (and now Human Rights Council) with following functions • To request and receive information from all relevant sources on violations of rights of migrants • To formulate recommendations to prevent/ remedy violations • To promote effective application of relevant norms/ standards • To take account of gender perspective and to give special attention to occurrences of multiple discrimination and violence against migrant women • To give particular emphasis to recommendations on practical solutions (e.g. identifying best practices) • To date, 9 general reports issued and 19 country visits conducted – most examine situation of migrant workers and make recommendations regarding 1990 Convention on the Rights of Migrant Workers

27. Supplementary Ways ILO Multilateral Framework on Labour Migration • Plan of Action for migrant workers adopted by International Labour Conference in June 2004 • To be implemented by ILO and its constituents in partnership with other international governmental organizations • Objective: to develop “a non-binding multilateral framework for a rights-based approach to labour migration, which takes account of labour market needs” • Framework adopted by Tripartite Meeting of Experts in December 2005 and ILO Governing Body approved its publication and dissemination in March 2006 • Comprises international principles and guidelines on best practices in a broad range of areas • Available from ILO website • http://www.ilo.org/public/english/protection/migrant/download/multilat_fwk_en.pdf

28. Highlighting • Importance of regional legal frameworks • Global and regional consultative processes are increasingly devoting attention to the protection of the human rights of migrants, in particular migrant workers

29. INTERNATIONAL LEGAL FRAMEWORK The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons: “Trafficking in Persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, )

30. The UN Protocol defines Children: The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ”trafficking in persons” even if this does not involve any of the means set forth in the definition of trafficking in persons.

31. Exploitation • The Protocol makes reference to some specific forms of exploitation; however the list is not exhaustive and it may include other forms as well. The choice made was to extend as much as possible the definition of trafficking in persons to include any possible ––known or still unknown ––form of exploitation

32. UN Protocol • The Protocol does not define any of the mentioned forms of exploitation related to forced labour. But a definition for each of them can be found in the relevant international convention. • Article 2, paragraph 1 of ILO Forced Labour Convention, 1930 (No. 29) defines forced labour as ““all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarilyoffered voluntarily””

33. Trafficking violates the most basic rights of any person in relation to a work situation ––the freedom from coercion at work, the freedom to set up associations and bargain collectively, and the freedom from discrimination at work. Further trafficking of children has been defined by the ILO as one of the worst forms of child labour, which seriously harms the development of the child.

34. Slavery and servitude • The 1957 Supplementary Convention on the Elimination of Slavery, Slave Trade, and Institutions and Practice Similar to Slavery defines Slavery as ““the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised””

35. Sexual exploitation • In 1949 the Convention for the Suppression of the Trafficking in Persons and the Exploitation of the Prostitution of Others was adopted.

36. OTHER UN TREATIES • UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS THERETO • The purpose of this Convention is to promote cooperation to prevent and combat transnational organized crime more effectively.

37. OTHER UN TREATIES • The 1948 Universal Declaration of Human Rights acknowledges the equality, liberty, security and freedom, also from slavery or servitude, of all human beings: • Art. 3: Everyone has the right to life, liberty and security of person. • Art. 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. • Art. 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. • The Universal Declaration of Human Rights was adopted by the UN General Assembly on 10 December 1948 and provides human rights standards accepted by all Member States. Though it is not a binding treaty, it provides a normative basis for international human rights standards.

38. OTHER UN TREATIES • International Covenant on Civil and Political Rights • Convention on the Elimination of all forms of Discrimination against Women • Convention of the Rights of the Child • Economic and Social Council Recommended Principles and Guidelines on Human Rights and Human Trafficking • ILO 29, 105, 182

39. ILO Convention No. 29 concerning Forced or Compulsory Labour (1930)-Entry into Force 01.05.1932 • More than 160 Member States have ratified the ILO Forced Labour Convention No. 29 of 1930. It provides a basic definition of forced labour, which is still applicable to such present-day international instruments as the UN Trafficking Protocol. • Under the ILO Convention No. 29, the term forced or compulsory labour shall mean (art. 2) “all work or service which is exacted from any person under the menace of any penalty, and for which the said person has not offered himself voluntarily”.

40. The concept of forced labour as defined by ILO Convention 29 comprises three basic elements: a. the activity exacted must be in the form of work or service; b. the menace of penalty c. it is undertaken involuntarily by the victim Article 4-The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations.

41. OTHER UN TREATIES-ILO ILO Convention No. 105 concerning the Abolition of Forced Labour (1957)-Entry into Force 17.01.1959 At a time when there had been growing use of forced labour for political purposes, ILO adopted an additional instrument on the subject: its Abolition of Forced Labour Convention (No. 105 of 1957), which calls for the suppression of forced labour as a means of political coercion, labour discipline or racial, social, national or religious discrimination; as a method of mobilizing and using labour for purposes of economic development; and as punishment for having participated in strikes.

42. ILO • ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination on the Worst Forms of Child Labour (1999)-174 ratifications-Entry into Force 19.11.2000 • The ILO Convention on the Worst Forms of Child Labour (No.182) adopted in 1999 includes the sale and trafficking of children as one of the worst forms of child labour that must be tackled urgently. In the ILO Convention No.182 "children" are, in line with the UN Convention on the Rights of the Child and the UN Trafficking Protocol, defined as persons under the age of 18. While the UN Convention against Transnational Organized Crime and its Trafficking Protocol tackle trafficking in human beings from the angle of transnational organized crime, the ILO Convention No.182 declares the sale and trafficking of girls and boys under 18 years of age one of the worst forms of child labour and calls for immediate measures, including prevention, withdrawal and rehabilitation. Convention No.182 further sets out the framework for action • against child trafficking and other worst forms of child labour.

43. ILO 182 Article 3 defines worst forms of child labour as • (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; • (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; • (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; • (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

44. ILO continued • C081 Labour Inspection Convention Entry into force: 07 April 1950 • Domestic Workers

45. UNHCHR • The United Nations High Commissioner for Human Rights has developed Recommended Principles and Guidelines on Human Rights and Human Trafficking (E/2002/68/Add.1), which provide an important framework guiding the criminalization of trafficking in persons and the development of a legislative framework.

46. UN Global Compact • The UN Global Compact asks companies to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards, the environment and anti-corruption:

47. UN Global Compact Human Rights • Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and • Principle 2: make sure that they are not complicit in human rights abuses.   • Labour • Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining; • Principle 4: the elimination of all forms of forced and compulsory labour; • Principle 5: the effective abolition of child labour; and • Principle 6: the elimination of discrimination in respect of employment and occupation • Environment • Principle 7: Businesses should support a precautionary approach to environmental challenges; • Principle 8: undertake initiatives to promote greater environmental responsibility; and • Principle 9: encourage the development and diffusion of environmentally friendly technologies.    • Anti-Corruption • Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery. 

48. INTERNATIONAL LEGAL FRAMEWORK • Council of Europe • EU Instruments • Others

49. LEGAL DEFINITIONS Council of Europe Convention on Action against Trafficking in Human Beings Warsaw, 16.V.2005

50. CoE • Legally binding instrument • Not restricted to CoE members only