Migrant Workers and International Law

1. Migrant Workers andInternational Law Lund 2013

2. A few facts: • International migrants in 2010, estimated at 214 million, represent 3 per cent of the global population. • Women make up almost 50 per cent of international migrants. • Migrant workers (those who migrate for employment) and their families account for about 90 per cent of total international migrants. • Economically active migrant workers number about 105 million in 2010. • Remittances to developing countries was $372 billion in 2011, an increase of 12 per cent compared to 2010.

3. Specific migrant rights standards • ILO C. 97: Migration for Employment Convention (Revised), 1949 (49 ratifications) • ILO C. 143: Migrant Workers (Supplementary Provisions) Convention, 1975 (23 ratifications) • UN: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (47 ratifications, 35 signatories, several reservations) • Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2000 (130 ratifications) • Ratifications as of 6 September 2013

4. Also various policy documents • E.g., ILO: “Conclusions on a fair deal for migrant workers in a global economy”, in Report of the Committee on Migrant Workers, Provisional Record No. 22, International Labour Conference, 92nd Session, Geneva, 2004. • ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration, (Geneva, 2006). • Upcoming High-level Dialogue on International Migration and Development , UN General Assembly October 2013.

5. Changing character of migration • From ILO Governing Body document Nov. 2012. • A shift from state-organized migration to spontaneous or market-driven migration, with the private recruitment industry gaining in importance. The significance of the latter varies by country and region, depending on the skill level of the migrant worker, the permeability of borders and the informality of labour markets at destination. All too often these agencies have been found to engage in unethical practices, such as charging exorbitant fees to workers or providing false information about jobs, which have generated hardship for migrant workers and also distorted labour markets in countries of destination.

6. The “mushrooming” of a range of temporary labour migration schemes that typically place more stringent and less favourable conditions of admission and stay on less-skilled workers relative to better-skilled workers, and feature strong return control mechanisms, often regardless of actual labour market needs. • The rise in irregular migration, which is estimated to range between 10 and 15 per cent of total international migration, has been another issue that has dominated the international migration policy debate in the past two decades.

7. Scope & Definitions • - evolution in concept between 1949 and 1990 • Migrant worker: “a person who migrates from one country to another, with a view of being employed otherwise than on his [or her] own account” (Art. 11, C. 97) • C143: “a person who migrates or who has migrated from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant worker.” (limited to equality of treatment) • UN Convention: “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(1)).

8. Exceptions ILO C97: • (a) frontier workers; • (b) short-term entry of members of the liberal professions and artistes; and • (c) seamen.

9. ILO C143: • (a) frontier workers; • (b) artistes and members of the liberal professions who have entered the country on a short-term basis; • (c) seamen; • (d) persons coming specifically for purposes of training or education; • (e) employees of organisations or undertakings operating within the territory of a country who have been admitted temporarily to that country at the request of their employer to undertake specific duties or assignments, for a limited and defined period of time, and who are required to leave that country on the completion of their duties or assignments.

10. UN Convention: • (a) Persons sent or employed by international organizations and agencies or persons sent or employed by a State outside its territory to perform official functions, whose admission and status are regulated by general international law or by specific international agreements or conventions; • (b) Persons sent or employed by a State or on its behalf outside its territory who participate in development programmes and other co-operation programmes, whose admission and status are regulated by agreement with the State of employment and who, in accordance with that agreement, are not considered migrant workers;

11. (c) Persons taking up residence in a State different from their State of origin as investors; • (d) 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; • (e) Students and trainees; • (f) Seafarers and workers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the State of employment.

12. International migration: Conventions cover only those migrants that cross international borders Both spontaneous and organized migration: Covers migrant workers privately or public recruited and those who migrate on their own to seek employment

13. Convention No. 97 • Historical context: concern to faciliate the movement of « surplus labour » • Aim: protection of workers from discrimination and exploitation while employed in countries other than their own • Focus on migrant workers in a regular situation

14. (C97) • Regulation of conditions in which migration for employment should occur (e.g., exchange of information, cooperation between government services) • General protection provisions, e.g. • Fight misleading propaganda • Facilitate departure, journey and reception • Maintenance of appropriate medical attention • Right of migrants to transfer earnings and savings • Prohibits expulsion of migrant workers admitted on a permanent basis in the event of incapacity of work

15. Convention No. 143 • 1975: shift towardscontrolling migration flows and eliminatingirregular migration, and suppressing the activities of organizers of clandestine movements of migrants. • Two main parts • Part I (Articles 1-9) deals with the problems arising out of clandestine migration and illegal employment of migrants and provides equality of treatment between irregular and regular migrants with respect to certain rights • Part II (Articles 10-14) substantially widens the scope of equality between migrant workers in an regular situation and nationals, in particular extending it to equality of opportunity

16. Part I: Migration in abusive conditions • Respect basic human rights of all migrant workers, whether regular or irregular • Determine and suppress clandestine movement and the illegal employment of migrant workers • Punish the organizers of such migration and procurers of workers in movements, assistance and employers • Protective measures for migrant workers who have lost employment (against irregular status) or who are in an irregular situation

17. UN Convention coverage Article 1 • 1. The present Convention is applicable, except as otherwise provided hereafter, to all migrant workers and members of 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. • 2. The present Convention shall apply during 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.

18. Conventions do not affect the right of eachMember State to refuse entrance or stay and to determine the methods of entry and stay. • They do recallthat: • Even in an irregular situation, migrant workers have basic human rights • Once admitted to the territory for employment, they should be treated on a equal basis with nationals

19. Equality of treatment between migrant workers and nationals as regards laws and administrative practices on • Living and working conditions • Social security (but special provisions may be made) • Employment taxes • Access to justice

20. UN Convention on migrant workers and families • The basic idea is that of non-discrimination and that all migrant workers should enjoy human rights. • Convention provides a broad protection of the rights of migrants, inter alia, fundamental freedoms, access to health care, protection with respect to expulsion, access to education of children of irregular migrants, consequences of migration with respect to political participation and certain rights related to the supervision of the convention.

21. The scope of application is wider than ILO instruments • More detailed convention and does not exclude migrants working for their own account • The family of the migrant worker is at the heart of the Convention and its definition of family takes into account the reality of today. However, it should be noted that the convention only suggests a social approach to migration and does not create a right to family reunification.

22. Beyond the migration Conventions • Migrant workers’ instruments are not widely ratified • But migrant workers have the rights available to all persons under ILO and UN • Inter alia, Universal Declaration, ILO Declaration of Fundamental Principles and Rights • And in most cases are protected by other labour Conventions as well.

23. Special treatment in other ILO standards • Equality of Treatment (Social Security) Convention, 1962 (No. 118) • Private Employment Agencies Convention, 1997 (No. 181) • HIV and AIDS Recommendation, 2009 (No. 200) • Domestic Workers Convention (No. 189) and Recommendation (No. 201), 2011

24. Human Rights/Workers’ rights • Freedom from discrimination: ILO C111, CERD, CEDAW, et al. • Freedom from forced labour: ILO C29, ICCPR, ICESCR + Trafficking • Freedom from child labour: ILO C138, ILO C182, CRC • Freedom of association: ILO C87, ILO C98, ICCPR, ICESCR

25. Other rights • Safe and healthy working environment • Health (e.g., HIV/AIDS) • Social security (Note C118) • Labour inspection • Education and training • and all the others …

26. Gaps between international and national law • Legislation is late • Law is incomplete – partial coverage • Law is inconsistent – account taken in, e.g., labour law but not criminal law or civil law • Gaps in implementation because of decision or because of lack of capacity

27. Supervision findingsby ILO and UN • Declining role of state and increase in private recruitment (emphasize role of C181: Private Recruitment Agencies) • Feminization of migration • Increase in temporary migration • Increase in irregular migration

28. Tensions on equality of treatment and opportunity • Lack of legislative coverage where migrants work: domestic work, agriculture • Control of migration: certain measures to suppress irregular migration violate human rights • Lack of inspection/supervision • Sanctions: in practice taken mostly against irregular migrants rather than organizers and employers

29. Need to favour remittances and reduce their cost – currently cost migrants about 10 per cent on average to transfer earnings home.