87th Session
Geneva, June 1999
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Report III (1B) |
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Migrant Workers |
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Review of standards and activities relating
to the
protection of migrant workers
Section
I. ILO activities relating to the
protection of migrant workers
A. Standard-setting activities of the ILO
32. The protection of workers employed in a country other than their country of origin has always had an important place among the activities of the ILO, since more than any other workers they are liable to exploitation, particularly if they are in an irregular situation and victims of manpower trafficking. It is a telling fact that when the ILO was founded in 1919, the situation of workers employed abroad was addressed both by the Treaty of Versailles(1) and in the Preamble to the Constitution of the ILO.(2) This concern of the ILO with the situation of migrant workers was reflected in the adoption, at the First Session of the International Labour Conference in 1919, of a Recommendation(3) which already sketched out the two aims of the ILO in this domain -- equality of treatment between nationals and migrant workers and coordination on migration policies between States, and between governments and employers' and workers' organizations, and in the adoption of several other instruments. It is also to be noted that the Declaration concerning the aims and purposes of the International Labour Organization or the Declaration of Philadelphia (adopted in 1944) singles out the problems of migrant workers for special attention.(4) The Committee notes that this concern remains highly relevant today and observes that the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference on 18 June 1998, in the fourth paragraph of the Preamble, reaffirms the need for the Organization to pay special attention to this category of workers.(5) Finally, the Committee recalls that in the Special Survey of 1996 on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), it recommended examining the possibility of adopting a Protocol supplementing the Convention, consisting of two points: (a) the adoption of supplementary grounds upon which discrimination would be forbidden under the Convention, in order to take account of changes which have taken place, as national legislation has done, and to include grounds which already appear elsewhere in ILO Conventions, and in particular, nationality;(6) and (b) the possibility given to countries to reverse the burden of proof, under certain circumstances, in discrimination cases.
1. Specific standards relating to migrant workers
33. As pointed out above, the International Labour Conference had a twofold aim in view when it adopted the instruments on migrant workers. The intention was to regulate the conditions in which the migration process takes place, on the one hand, and, on the other, to provide specific protection for a very vulnerable category of workers. To achieve this, the standard-setting activities of the ILO in this area have been concentrated in two main directions.
34. First, the Conference has endeavoured to establish the right to equality of treatment between nationals and non-nationals in the field of social security and at the same time to institute an international system for the maintenance of acquired rights and rights in the course of acquisition for workers who transfer their residence from one country to another. It has accordingly adopted four Conventions and two Recommendations: the Equality of Treatment (Accident Compensation) Convention (No. 19), and Recommendation (No. 25), 1925; the Maintenance of Migrants' Pension Rights Convention, 1935 (No. 48); the Equality of Treatment (Social Security) Convention, 1962 (No. 118); and the Maintenance of Social Security Rights Convention, 1982 (No. 157), and Recommendation (No. 167), 1983. The main objective of the Conference in adopting these standards has been to limit progressively the scope of certain restrictive clauses based on the method of financing social security, and to mitigate the effects of reciprocity clauses for developing countries.
35. Second, the Conference has endeavoured to find comprehensive solutions to the problems facing migrant workers and has adopted a number of instruments to this end (including those containing only a few provisions relating to migrant workers). In 1926 it adopted the Inspection of Emigrants Convention (No. 21), and the Migration (Protection of Females at Sea) Recommendation (No. 26); in 1939 the Migration for Employment Convention (No. 66), and Recommendation (No. 61), and the Migration for Employment (Co-operation between States) Recommendation (No. 62); and in 1947 the Social Policy (Non-Metropolitan Territories) Convention (No. 82). Convention No. 66 never entered into force due to lack of ratifications; it was accordingly decided to revise it in 1949, when the Migration for Employment Convention (Revised) (No. 97) and Recommendation (Revised) (No. 86) were adopted. In 1955, the Conference adopted the Protection of Migrant Workers (Underdeveloped Countries) Recommendation (No. 100); in 1958, the Plantations Convention (No. 110) and Recommendation (No. 110); and in 1962, the Social Policy (Basic Aims and Standards) Convention (No. 117). Finally, in 1975, the Conference supplemented the 1949 instruments by adopting the Migrant Workers (Supplementary Provisions) Convention (No. 143) and the Migrant Workers Recommendation (No. 151).
36. It should be noted that the Working Party on Policy regarding the Revision of Standards has proposed that Conventions Nos. 21 and 48 be denounced and the more recent Conventions be ratified instead (Nos. 97 and 157); other instruments have been shelved with immediate effect (No. 66) pending either their withdrawal by the 88th Session (in the year 2000) of the International Labour Conference(7) or the outcome of consultations with the States parties by the ILO (No. 82). As regards Convention No. 19, the Governing Body has encouraged States to examine the possibility of ratifying the more recent Convention No. 118. It also recommended ratification of Convention No. 110 and decided that there was no need to envisage the revision of Convention No. 117 for the time being.
2. Other relevant ILO standards
37. It should first be recalled that, with the exception of the instruments relating to migrant workers, and other special categories, the Conventions and Recommendations adopted by the International Labour Conference are of general application, that is, they cover all workers, irrespective of citizenship, even though since the Organization's inception there has been an awareness of the need to adopt instruments specifically protecting migrant workers.
38. Therefore, although they do not contain provisions dealing specifically with migrant workers, the following instruments either contain provisions relating to them, or the Committee has referred to the situation of migrant workers in supervising their application in recent years: the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26); the Forced Labour Convention, 1930 (No. 29); the Labour Inspection Convention, 1947 (No. 81); the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Employment Service Convention, 1948 (No. 88); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); the Equal Remuneration Convention, 1951 (No. 100); the Maternity Protection Convention (Revised), 1952 (No. 103); the Abolition of Forced Labour Convention, 1957 (No. 105); the Indigenous and Tribal Populations Convention, 1957 (No. 107); the Discrimination (Employment and Occupation) Convention, 1958 (No. 111);(8) the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111),(9) the Workers' Housing Recommendation, 1961 (No. 115);(10) the Employment Policy Convention, 1964 (No. 122); the Human Resources Development Recommendation, 1975 (No. 150);(11) the Occupational Safety and Health Recommendation, 1981 (No. 164);(12) the Termination of Employment Convention, 1982 (No. 158); the Employment Policy (Supplementary Provisions) Recommendation, 1984 (No. 169);(13) the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168);(14) the Indigenous and Tribal Peoples Convention, 1989 (No. 169);(15) and the Private Employment Agencies Convention (No. 181)(16) and Recommendation (No. 188),(17) 1997. This list is by no means exhaustive. Mention should also be made of the numerous observations formulated by the Committee during its supervision of the application of the maritime Conventions.
B. Other ILO activities in the field of migration
39. In addition to the adoption and supervision of standards, the ILO has, in recent years, undertaken a number of activities in the field of migration aimed at improving the situation of millions of migrant workers across the globe. The following information is not intended to be exhaustive, but to serve as an indication of the extent and variety of programmes initiated by the Office.
40. In April 1997, the ILO held a Tripartite Meeting of Experts to consider the future activities of the ILO in the field of migration. The outcome of this Meeting was the adoption by the Governing Body of two sets of guidelines(18) for member States, aimed at preventing the abuse of particularly vulnerable migrant workers. The first set of guidelines dealt with special protective measures for migrant workers in time-bound activities and focused upon such issues as family reunification, provision of accommodation, wages and other terms of employment, freedom of association, social security and conditions of return of short-term migrant workers. The second set of guidelines related to special protective measures for migrant workers recruited by private agencies, and focused on the limitations which should be placed on the activities of private agents in relation to confiscation of travel documents, advertising and soliciting applications for positions that, in reality, do not exist, provision of false information to prospective migrants, and other such malpractices.
41. The Tripartite Meeting also provided the occasion to develop a new mechanism in the field of international labour migration, known as pattern and practice studies. These studies, which are independent of, but complementary to the provisions of the ILO instruments, result from the ILO being requested to investigate allegations of persistent and widespread exploitation of migrant workers in States. Allegations may originate with workers' and employers' organizations, but the procedure can also be triggered by a government seeking the Office's advice on incidents occurring in their territory with respect to migrant workers. The conclusions of such a study are intended to be submitted to an informal meeting bringing together representatives of the government, and of workers' and employers' organizations for discussion of the findings. The principal advantage of this new development is its low-key approach, by which the ILO can actively help constituents to improve the daily working conditions of migrants. Its important and novel aspect is its informality: through this mechanism, ILO constituents are given the opportunity to seek the Office's expertise on issues of concern, without initiating formal and highly public Convention-based procedures. As at 11 December 1998, the new procedure has not been used.
42. Also in 1997, the Governing Body of the ILO supported the creation of what is to be known as the International Labour Migration Database. This interactive tool will contain information, both quantitative and qualitative, on the numbers and flows, as well as living and working conditions of migrant workers in sending and receiving countries throughout the world. The database aims at filling a gap in information provision to labour ministries, workers' and employers' organizations, immigration authorities, academics, researchers and NGOs on the nature and extent of international labour migration and its consequences. A limited version of the database is scheduled to appear in the course of 1999.
43. The ILO continues to undertake research in a number of regions of the world, and regularly publishes books and working papers. Most notable in recent years was the development of two manuals aiming to serve policy-makers and administrators involved in the management of migration.(19)
2. Technical cooperation and technical advisory services
44. The major part of ILO's activities in the field of migration consists of providing assistance to countries of emigration and immigration in the formulation of migration policies and legislation, and in managing migratory flows more effectively, in line with the provisions of the ILO instruments. For migrant-receiving countries, this assistance involves developing and strengthening institutions, procedures and national regulations covering the recruitment, employment and return of foreign labour, as well as putting mechanisms in place to encourage the integration of long-term migrant workers and to regulate the activities of private recruitment agencies. For migrant-sending countries, assistance relates to the protection of nationals abroad, facilitating both the departure and return of migrants, monitoring remittance flows, and again, regulating the activities of private recruitment agencies. Assistance is provided to both sending and receiving countries to develop and strengthen measures to combat irregular migration and employment, and to protect the basic human rights of workers.
45. In recent years, ILO assistance in the field of migration has usually taken the form of policy analysis and guidance to constituents having queries on implementing or improving national, bilateral and/or regional migration policies, as well as assistance to workers' and employers' organizations. Recent examples include a workers' seminar in Tunisia which brought together representatives from eight North and West African trade unions and international specialists in late 1992; assistance to the Ministry of Labour and Social Policy of Poland in the preparation and holding of a regional conference on labour migration in Central and Eastern Europe; and missions to Costa Rica and Nicaragua in late 1995 to advise on irregular migration flows between the two countries. Requests for similar types of assistance have been received from countries in Central and Eastern Europe, the countries of the Commonwealth of Independent States (CIS), as well as countries in the Caribbean and African regions.
46. In recent years, one of the most significant projects to be undertaken by the Office was a regional programme entitled Informal network on foreign labour in Central and Eastern Europe which brought together policy-makers and legislators from countries of the region in an informal setting to develop and improve bilateral and multilateral migration policies. A second project was the 1994-95 Interdepartmental Project on Migrant Workers, which resulted in a number of studies and publications on a variety of subjects pertinent to the international migration debate as well as the provision of technical advisory services to Kuwait following the Gulf War and the consequences it had upon foreigners working in the country and the development of a legislative database on migrant workers' questions.
Box 1.1 In the early 1990s, the Office launched a project entitled "Combating discrimination against (im)migrant workers and ethnic minorities in the world of work". The aim of the project was to reduce discrimination against migrant workers and ethnic minorities by informing policy-makers, legislators, employers, workers, NGOs and persons engaged in anti-discrimination training on how legislative measures and training activities could be rendered more effective, based on an international cross-comparison of the efficacy of such measures and activities. In the course of the project, ILO researchers uncovered high levels of labour-market discrimination against non-nationals and those perceived to be non-nationals across industrialized, migrant-receiving countries. Through an analysis of the legal and training measures which have been developed in these countries, the ILO drew up a series of conclusions and suggestions for action as to how protection against labour-market discrimination could be more effectively guaranteed for regular-entry and legally resident migrants. This project demonstrated that legal provisions outlawing labour-market discrimination on the grounds of nationality are most effective when enacted through comprehensive civil legislation, backed up by an enforcement body with wide-ranging powers and functions. Complementary measures such as positive action schemes, labour-force surveying, contract compliance and workplace training were also shown to be essential to ensure effective protection of these workers. To consult the findings of this project, see ILO: Draft manual on achieving equality for migrant and ethnic minority workers , Geneva, ILO, 1998. |
47. Another project of note stemmed from the joint ILO/UNHCR (United Nations High Commissioner for Refugees) regional meeting in 1992 and consisted of an initiative to bring three northern African countries -- Algeria, Morocco and Tunisia -- together with interested European countries -- Belgium, France, Germany, Italy and Spain -- as well as a number of international organizations -- the United Nations Development Programme (UNDP), the European Community and the World Bank -- to consider jointly what kinds of programmes and which form of international support would be most promising in an institutionalized effort to reduce the need of Maghrebians to leave their countries for employment abroad. The project resulted in seed-money being made available to develop micro-enterprises in Morocco and Tunisia, and the issue was subsequently put on the agenda of the European Commission in the course of its development work in the region.(20)
48. In sum, the ILO has developed a comprehensive and wide-ranging set of programmes dealing with the causes and consequences of international labour migration which build upon the provisions of the ILO instruments, and support their increased ratification and implementation through a variety of informal means.
Section II. Other standards and activities
in the field of migration
A. United Nations instruments and activities
49. The Universal Declaration of Human Rights, adopted by the United Nations organization 50 years ago, specifies that all individuals, irrespective of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, are born free and equal in dignity and rights. The formulation of rights and freedoms stipulated in the Universal Declaration of Human Rights apply equally to migrants as to any other individual, as do the provisions of instruments which have subsequently been developed. Since 1948 however the singular vulnerability of workers employed outside their countries of origin has been the subject of increasing concern throughout the United Nations system. In a recent statement, the Secretary-General of the United Nations stated that:
[...] there is a need to formulate and strengthen measures at the national level to ensure respect for, and protection of the human rights of migrants, migrant workers and their families, to eliminate the increasing acts of racism and xenophobia in sectors of many societies, and to promote greater harmony and tolerance in all societies. (21)
1. Relevant United Nations instruments
50. Following a lengthy drafting process, to which the ILO contributed actively, on 18 December 1990, the General Assembly of the United Nations adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. It recognized and built upon the provisions contained in existing ILO Conventions,(22) and in many ways went beyond them. It extended to migrant workers who enter or reside in the host country illegally (and members of their families) rights which were previously limited to individuals involved in regular migration for employment, going beyond those elaborated in Part I of ILO Convention No. 143. While the long-term objective of the United Nations Convention is to discourage and finally eliminate irregular migration, at the same time it aims to protect the fundamental rights of migrants caught up in such migratory flows taking account of their vulnerable position. Other significant aspects of the Convention include the fact that ratifying States are not permitted to exclude any category of migrant worker from its application, the "indivisibility" of the instrument, and the fact that it includes every type of migrant worker, including those which are excluded from existing ILO instruments.(23)
51. This new Convention has, however, received but a lukewarm welcome from States. While 20 ratifications are required for the Convention to come into force, as of 11 December 1998, only nine States had ratified or acceded to it.(24) Further, as is the case with the ILO instruments, the majority of States parties to this Convention are, on the whole, migrant-sending States which, while extremely important in terms of protection of migrants prior to departure and after return, hold little influence over the daily living and working conditions of the majority of migrant workers. A Global Campaign for Ratification of the Convention on Rights of Migrants was launched in Geneva in 1998. Pending its entry into force, other United Nations instruments are of more immediate relevance to the protection of migrant workers.
52. The 1990 Convention is the only United Nations instrument of direct relevance to migrant workers, but the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is also relevant, although to a lesser degree. The ICERD, currently one of the most widely ratified of the United Nations human rights conventions,(25) binds States parties to outlaw discrimination on the grounds of race, colour, descent, or national or ethnic origin against all individuals within the jurisdiction of the State and to enact sanctions for activities based upon such discrimination. However, the Convention does not apply to "distinctions, exclusions, restrictions or preferences made by a State party [...] between citizens and non-citizens",(26) a point which has been reiterated on a number of occasions by members of the committee set up to monitor application of the ICERD.(27) That is to say, discrimination on the grounds of nationality, a type of discrimination to which migrants by definition are extremely vulnerable, is not outlawed by the Convention.
53. Several other United Nations instruments, while having no direct relevance to migrant workers, are of potential importance in terms of protecting them from discrimination and exploitation on grounds other than their non-national status. These include the Convention on the Elimination of All Forms of Discrimination against Women (1979); the International Covenant on Economic, Social and Cultural Rights (1966); the International Covenant on Civil and Political Rights (1966); the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); and the International Convention on the Rights of the Child (1989).
2. United Nations activities in the field of migration
54. The United Nations has also engaged in a number of other activities in the field of migration. At each of a number of recent international conferences, notably the World Conference on Human Rights in Vienna in 1993,(28) the International Conference on Population and Development in Cairo in 1994,(29) the World Summit for Social Development in Copenhagen in 1995,(30) and the Fourth World Conference on Women in Beijing in 1995,(31) considerable time was devoted to the issue of international migration, and the international community has taken advantage of these occasions to recognize the need for more complete legal protection of migrant workers.
55. The United Nations General Assembly has placed the protection of migrant workers on its agenda on several occasions, and has adopted a number of resolutions covering such issues as trafficking of female migrants and children; violence against female migrants; and contemporary forms of racial discrimination against migrant workers.(32)
56. The Economic and Social Council (ECOSOC) has adopted a number of resolutions and decisions on this point and has decided to hold a World Conference against Racism, Racial Discrimination, Xenophobia and Other Related Intolerance, taking into account the specific problems of migrants and discrimination, to be held no later than the year 2001, within the framework of the Third Decade to Combat Racism and Racial Discrimination.(33) Among the other activities of ECOSOC, the creation of the Administrative Committee on Coordination Task Force on Basic Social Services for All, and its Working Group on International Migration, of which the ILO was the lead agency, is notable.(34) One of the most important decisions taken by this Working Group was to convene an international technical symposium in the Hague in 1998 covering issues relating to international migration and refugees. At the regional level, the economic commissions of ECOSOC contribute to the migration debate through numerous regional initiatives and studies. Regional meetings such as the Expert Group Meeting on Violence Against Migrant Women Workers, which took place in Manila in 1996, also fall under the ECOSOC.
57. In recent years, the United Nations Commission on Human Rights has devoted considerable time to the issue of migration and the problems migrants face, notably through the adoption of resolutions but also through the creation in 1997 of the working group of intergovernmental experts on the human rights of migrants which has, to date, met three times. The ILO has played an active role in the meetings of this working group. Through the Commission on Human Rights, a Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance was also appointed, who addresses issues of relevance to migrant workers and to whose reports the ILO has provided substantial input.(35)
58. A resolution on the situation of migrant workers and members of their families was adopted unanimously by the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, in 1998. The resolution appealed to governments to ratify the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, as well as ILO Conventions Nos. 97 and 143.(36)
59. The work of the United Nations High Commissioner for Refugees (UNHCR), with its focus upon migration in the form of refugee movements, complements the work done on economically induced labour migration by the ILO.
60. The United Nations Development Programme (UNDP) concentrates its migration activities in preventing large-scale forced migration movements as well as undertaking research and planning to help individual countries manage voluntary migration flows more successfully. Regional bureaux of UNDP in Africa and the Arab States also carry out initiatives to address problems resulting from forced migrations and displacement. The United Nations Population Fund (UNFPA) has undertaken several significant projects in the field of migration, including the organization of regional and subregional meetings of migration policy-makers. National data-collection programmes also feature highly in the migration agenda of UNFPA, and the Fund continues to provide support for many ILO activities in the field of migration.
3. United Nations specialized agencies
61. The other specialized agencies of the United Nations system also bring their specific expertise to the migration field. The United Nations Educational, Scientific and Cultural Organization (UNESCO) addresses the problems of migration through information provision and promotional activities as well as regional projects dealing with such aspects of the migration process as cultural integration and identity. UNESCO also developed the Asia-Pacific Migration Research Network; this is a major social science policy-research programme which studies national and international consequences of migratory movements in the region. The World Health Organization (WHO), while undertaking no specific projects in relation to migrants' health issues, tackles the causes and consequences of diseases which are likely to have disproportionate effect on individuals involved in migratory movements because many migrants end up performing dirty and dangerous jobs, often under degrading working and living conditions which are more likely to give rise to ill health. Similarly, the United Nations International Drug Control Programme does not explicitly tackle the issue of migration, but does target programmes specifically at those who are most vulnerable in terms of drug trafficking and abuse, including refugees, returnees and young migrants. The Food and Agriculture Organization (FAO) attaches great importance to the link between international migration issues and food security. Its Rural Development Division undertook a study on international migration and rural development in West Africa and Mexico and the Special Relief Operations Service provides aid to migrants and refugees caught in emergency situations.(37)
B. Regional instruments and intergovernmental activities
62. The management of international migratory flows has also in recent years featured highly on the agendas of a number of regional and subregional bodies. Agreements and institutions with the aim of regulating the entry, stay, treatment and departure of non-national workers have become well established in most regions of the world. While the variety of instruments and activities operating at the regional or subregional level is too wide to be analysed in much detail in this survey, some of the most prominent initiatives merit attention.
1. Regional migration instruments
63. In Europe, the Council of Europe's instruments in the field of labour migration are the most advanced, covering general human rights as well as more specific agreements relating to migrants and migrant workers. Of the former, the European Convention on the Protection of Human Rights and Fundamental Freedoms (1950), and the European Social Charter (1961) and its Additional Protocol (1988), include a number of provisions relating to individuals living and working in countries of which they are not nationals, covering the rights to privacy, family life, the right to engage in a gainful occupation in another member's territory, provision of information to migrant workers, facilitation of the migration process, equality of treatment of nationals and non-nationals in employment, the right to family reunification, and guarantees against expulsion, etc.(38) These instruments, however, as with all Council of Europe instruments, are relevant only to migrants who are citizens of Council of Europe Member States, and their application is conditional on reciprocity.
64. Council of Europe instruments dealing specifically with migrants and migrant workers include the European Convention on the Legal Status of Migrant Workers (1977) which applies to nationals of a Contracting Party who have been authorized by another Contracting Party to reside in its territory in order to take up paid employment. This Convention includes provisions relating to the main aspects of the legal status of migrant workers, and especially to recruitment, medical examinations and vocational tests, travel, residence and work permits, family reunion, housing, conditions of work, transfer of savings, social security, social and medical assistance, expiry of the contract of employment, dismissal and re-employment, and preparation for return to the country of origin. Other instruments dealing with different aspects of the life and work of migrants include the Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality (1963) and the Convention on the Participation of Foreigners in Public Life at Local Level (1992).(39)
65. The Commission of the European Communities (EC) has also developed a significant body of regional norms with the aim of regulating intraregional migratory flows and treatment of non-national workers. In this regard, the focus of the EC has been primarily upon economic aspects of migration and integration internal to the region, although it has increasingly devoted attention to more social aspects. Among the most important regulations are: (a) Regulation No. 1612/68/EEC, dealing principally with equality of treatment in respect of access to employment, working conditions, social and tax advantages, trade union rights, vocational training and education, it also lays down guidelines for family reunification; and (b) Regulation No. 1408/71/EEC relating to the application of social security regimes to employed persons and the self-employed and to members of their families who move within the Community (modified by Regulation No. 1606/98/EC, 29 June 1998). The basic document determining in more detail the treatment of non-nationals within the region is the Community Charter of the Fundamental Social Rights of Workers (1989). While not legally binding in itself, this document lays down guiding principles for the treatment of Community nationals in the field of employment. Directives emanating from the EC cover such issues as freedom of movement and residence, right to remain in the territory of another Member State after employment has been terminated, education of children of migrant workers, issues of health and safety of migrant workers, and the right to vote and stand in elections of other Member States. While the applicability of these instruments is limited in that they deal solely with migration internal to the region, it has been argued that the recent enlargement of the European Union, the number of countries still wishing to enter the region and the development of other comparable trade zones worldwide has served to increase their significance beyond the geographic boundaries of the region.(40)
66. In Africa, again the regional standards can be divided into those which deal with human rights in general, and those which have specific relevance to migrant workers. Of the former, the African Charter on Human and Peoples' Rights (1981), is the most significant. It protects individuals from discrimination based upon a number of grounds, and prohibits the mass expulsion of non-nationals. Of the instruments relating to labour migration, it should be pointed out that, as with the EC, most standards are focused primarily upon economic integration, touching on social and cultural aspects of migration as secondary issues.
67. On the subregional level there are a number of instruments, often little known and utilized, which tackle the problems specifically related to intraregional migration. Of these, in 1975 the Economic Community of West African States (ECOWA) adopted the Treaty of Lagos, which guarantees freedom of movement and residence, as well as equality of treatment in relation to cultural, religious, economic, professional and social activities between nationals of all ratifying States. The 1979 Protocol to this Treaty entitled all citizens of the ECOWA to enter, reside and settle in the territory of Member States. The Central African Customs and Economic Union adopted an agreement in 1973 which recognizes the principle of non-discrimination on the grounds of nationality in employment, remuneration and other working conditions, on the condition that individuals migrating for employment are already in possession of a job offer. This agreement was supplemented in 1985 with a social security convention on migrant workers. In 1978 the Economic Community of the Great Lakes' Countries adopted a convention on social security concerning Community nationals who have worked in another member country and, in 1985, a convention on the free movement of people, which is specified as a process to be achieved over a period of up to 15 years.
68. In the Arab region, the fundamental document relating to human rights, the Cairo Declaration on Human Rights in Islam, was adopted by the Organization of the Islamic Conference in 1990. It guarantees for all individuals freedom from discrimination based on various grounds. Specifically in the field of migration, the Agreement of the Council of Arab Economic Unity (1965) provides for freedom of movement, employment and residence and abolishes certain restrictions upon movement within the region. In 1968, the Arab Labour Organization developed the Arab Labour Agreement, intended to facilitate labour movement in the region, and giving priority within the region to Arab workers. These same provisions were reiterated in the 1970s with the strengthening of measures to retain jobs for Arab workers and to deport non-Arab workers from the region. This focus on reducing the participation of external migrants from the Arab labour market is apparent throughout the 1980s, with the adoption of the Strategy for Joint Arab Economic Action and the Charter of National Economic Action. The former determines that "Arab manpower must be resorted to increasingly to reduce dependence on foreign labour", while the latter breaks down legal barriers between nationals and migrants from other Arab States, providing for freedom of movement and equality of treatment. The Arab Declaration of Principles on the Movement of Manpower (1984) stressed once more the need to give preference to Arab nationals before nationals of third countries, calling simultaneously for the strengthening of regional bodies and intraregional cooperation.
69. The countries of Asia and the Pacific have not yet established any regional agreements or institutions dealing specifically with either human rights or migrants' rights, though the subject has been broached in discussions of the Asian Pacific Economic Cooperation Forum (APEC).
70. In the Americas the regional standards in the field of human rights in general are the Organization of American States' (OAS) American Declaration on the Rights and Duties of Man (1948) and the 1969 American Convention on Human Rights both guarantee freedom from discrimination. In Latin America, the Southern Common Market (MERCOSUR) Pact of 1995 is expected to formalize the current informal flow of workers across the internal borders of the region, while signatories to the Cartegena Agreement or Andean Pact(41) approved in 1977 the creation of the Andean Migration for Employment Instrument (decision 116) and in 1996 the creation of the "Andean Migration Card" which aims to facilitate migration flows in the subregion (decision 397). The North American Free Trade Agreement (NAFTA) deals only marginally with migration issues through the North American Agreement on Labor Cooperation and also in the body of NAFTA itself, which permits the entrance of a certain quota of investors, highly qualified personnel and executives of multinational corporations between signatory States.
2. Intergovernmental activities
71. Beyond standard setting, on the regional level, a number of intergovernmental institutions are active and contribute much to the study of cross-border migration. Of primary importance is the work of the International Organization for Migration (IOM), an organization which organizes its activities according to four broad categories: (a) humanitarian migration, (b) migration for development, (c) technical cooperation, and (d) migration debate, research and information provision. IOM has been promoting strategic planning on the management of orderly migration, basing itself on ILO standards as far as the rights of migrant workers are concerned. It operates a wide variety of programmes and cooperates with the United Nations organizations and specialized agencies on a number of migration projects. The organization also maintains a close and fruitful collaboration with the ILO. The Organisation for Economic Co-operation and Development (OECD) publishes an annual report on contemporary trends in migration within member States.(42)
72. In Europe, the activities of the Commission of the European Communities (EC) have contributed to combating discrimination, inter alia against migrant workers, in the form of the declaration of 1997 as the European Year Against Racism and Xenophobia. One of the most prominent events of that year was the insertion of a specific anti-discrimination clause in the Treaty of Amsterdam which outlawed discrimination on the grounds of, inter alia, racial or ethnic origin. The second significant event of the year was the creation of the European Monitoring Centre on Racism and Xenophobia which aims to collect and disseminate data on the occurrence of racism, xenophobia and anti-Semitism throughout the European Union. Activities of the Council of Europe also deal with various aspects of the migration process in Europe, above and beyond the development of regional norms described above. Supporting activities include the establishment of the European Committee on Migration (CDMG) and the Specialist Group on Integration and Community Relations, both of which meet regularly to discuss issues of common concern and to initiate research projects. In 1993 the Council of Europe created the European Commission against Racism and Intolerance (ECRI).
73. In Africa the most significant regional activities in the field of migration have been undertaken by the Central African Customs and Economic Union, the Common African and Mauritian Organization and the African, Caribbean and Pacific Group of States (ACP). The latter regularly organizes seminars and conferences on the subject of migration from the region to the industrialized countries of Europe and North America.
74. In the Americas, one event of significance is the Regional Conference on Migration, which held its first session in 1996 on the initiative of the Mexican Government. During this Conference, the governments of Central American countries, Canada, Mexico and the United States undertook to increase public awareness of the human rights of migrants as a means of promoting respect for migrants' dignity, combating anti-immigrant attitudes and eradicating illegal acts against migrants. At the second session of this Conference, held in 1997, a Plan of Action was drawn up comprising specific activities to be undertaken by the participating governments, including the distribution of information material to foreign diplomatic and consular missions, to competent governmental authorities, and to the public on the human rights of migrants, with the aim of heightening public awareness. At the Second International Meeting of Ombudsmen, entitled "Building the rule of law, peace, development and human rights" held in 1996 in El Salvador, the representatives of the various national institutions for the promotion of human rights signed a declaration urging governments of the region to respect the fundamental rights of migrants, regardless of whether or not they hold regular or irregular status in the host country.
75. Information on intergovernmental activities in Asia, the Pacific and the Arab regions is sparse and it can be concluded that such activities are few. However, the extent of bilateral negotiations appears to have gradually increased over recent decades.
76. Increasingly, many States are turning to bilateral agreements to regulate the most significant emigration and immigration flows.(43) The advantages of such agreements are that they can be adapted to the particularities of specific groups of migrants, and that both the sending and the receiving State can share the burden of ensuring adequate living and working conditions as well as monitoring, and more actively managing, the pre- and post-migration processes. The use of bilateral instruments as a means of regulating migration was first developed in the 1960s when the countries of Western Europe concluded a series of bilateral agreements with countries which were keen to provide a source of temporary manpower. Belgium, France, the then Federal Republic of Germany, Netherlands and Switzerland at one time or another all concluded agreements with one or more labour-supplying countries along the Mediterranean rim. In the 1970s the Middle East emerged as a new migrant-receiving region, and attempts were made to secure similar agreements between for example, Bangladesh, and the Islamic Republic of Iran, Iraq, Libyan Arab Jamahiriya and Oman; and Pakistan with Jordan; and the Philippines with Gabon, Islamic Republic of Iran, Iraq and Jordan.(44) Since then, bilateral agreements regulating migration have developed throughout the world. Of the regions, Asia appears to have had the least success in the regulation of migration flows through bilateral agreements, and notwithstanding the agreements concluded between the Philippines and some Member States of the European Union, no bilateral agreements have been located between Asian sending countries and receiving countries in other regions, despite their efforts, to the Committee's knowledge.(45)
77. The ILO has consistently recommended the formulation of bilateral instruments as a means of managing migration flows more effectively. The annex to Recommendation No. 86 provides an elaborate model of a bilateral agreement, and several provisions of the two relevant Conventions stress the role of bilateral cooperation in the field of migration.(46)
D.
Employers' and workers' organizations
and non-occupational NGOs
78. Employers' and workers' organizations have the greatest potential among NGOs in the field of migration. Workers' organizations have developed a variety of programmes relating to the consequences of migratory movements. At the international level, the International Confederation of Free Trade Unions (ICFTU) and Public Services International (PSI), monitor the migration debate and participate in a number of international activities in the field. For example, in 1994, the Asian and Pacific Regional Organization of the ICFTU organized a conference entitled "The role of trade unions in the protection of migrant workers", to discuss the ways in which trade unions can contribute to the protection of labour migrants, through such means as information provision, counselling services, regulation of employment agencies, cooperation with governments, integration assistance and building networking capacity. Of particular importance, it concluded that States should be encouraged to ratify and respect ILO standards on migrant workers. PSI has also carried out a number of activities in relation to the role of trade unions in protecting migrant workers, including the creation of a Migrant Workers' Working Group which first met in 1995 with the aim of developing a strategy for PSI's future activities in the field of migration, to which the ILO provided substantial input.(47)
79. On the regional and national levels, a number of federations of trade unions have been active in promoting human rights of migrants. These activities are most comprehensively documented in European States, although parallel initiatives can be found in other regions of the world. Of the European initiatives, one of the most significant actions taken by both employers' and workers' organizations was the development and signature in 1995 of the Joint Declaration on the prevention of racial discrimination and xenophobia and promotion of equal treatment at the workplace, proposing guidelines for the social partners in relation to equality of treatment of ethnic minorities and migrant workers. One of the follow-up activities to this Declaration was the compilation of a Compendium of Good Practice.(48) On the national level, to take one example of the numerous activities taking place, in Asia the All Pakistan Federation of Trade Unions has organized activities in the field, establishing a separate section for the welfare of migrant workers, and running a seminar in 1997 dealing with the promotion of welfare facilities for migrant workers and their families.
80. On the local level, both employers' and workers' organizations have clearly much to contribute to the protection of workers, and a host of local level initiatives can be identified. It can be argued, however, that the social partners have not been as active as they could have been in terms of promoting equality of opportunity and treatment of non-nationals in the workforce, though particular organizations can of course be singled out as having provided model initiatives in this area. It should be noted that, in the course of preparing this survey, very few of these organizations took the opportunity to communicate their comments to the Committee. The Committee can only emphasize the vital importance for workers' organizations in particular of action to protect migrant workers and to ensure their correct treatment. Not only are migrant workers in a legal situation potential members of trade unions in most countries, the possibility that the treatment given to illegal migrant workers will undercut the conditions of all workers is a constant danger.
81. Other non-governmental action in the field of migration tends to focus on regional or subregional projects, often offering "grass-roots" assistance to migrants facing problems in areas where intergovernmental organizations' action is limited. Predictably, the most vulnerable migrants, that is, undocumented or irregular migrants, are often reluctant to approach governmental bodies when faced with discrimination, violence and exploitation, and it is here that non-governmental action is crucial. Non-governmental organizations also play a pivotal role in acting as a liaison between migrants and the State and disseminating information to migrants on their rights under law. Finally, NGOs can act as a lobbying mechanism in encouraging States to ratify or more actively implement the provisions of international instruments for the protection of migrant workers. The ILO maintains contact with those who operate in the field of human rights in general and migrants' rights in particular.
82. The scope and variety of both migration flows and measures taken by States, intergovernmental organizations, non-governmental organizations and employers' and workers' organizations to manage these flows, have increased dramatically in recent years. It is hoped that this increasing attention paid to the causes, consequences and conditions of international migration will continue and will have a positive effect upon the ability and interest of all actors to improve the situation of workers employed outside their own countries, as well as the situation of members of their families. The ILO instruments which form the basis of this study are at the heart of this growing debate.
1. Art. 427 of the Treaty of Versailles: "The standard set by law in each country with respect to the conditions of labour should have due regard to the equitable economic treatment of all workers lawfully resident therein."
2. The Preamble to the Constitution lays down the obligation for the ILO to improve "protection of the interests of workers when employed in countries other than their own".
3. The Reciprocity of Treatment Recommendation, 1919 (No. 2).
4. Para. III(c): "The Conference recognizes the solemn obligation of the International Labour Organization to further among the nations of the world programmes which will achieve: [...]
(c) the provision, as a means to the attainment of this end and under adequate guarantees for all concerned, of facilities for training and the transfer of labour, including migration for employment and settlement."
5. "Whereas the ILO should give special attention to the problems of persons with special social needs, particularly [...] migrant workers, and mobilize and encourage international, regional and national efforts aimed at resolving their problems, and promote effective policies aimed at job creation."
6. The other grounds of discrimination which the Committee suggested including in a supplementary Protocol were age, civil status, disability, family responsibilities, financial status, language, sexual orientation, state of health and trade union membership.
7. GB.271/4/2, para. 11.
8. For example, Antigua and Barbuda, Argentina, Australia, Belarus, Belgium, Bulgaria, Cameroon, Denmark, Dominican Republic, Ethiopia, France, Ghana, Greece, Hungary, Kuwait, Mauritania, Mongolia, Nepal, Netherlands, New Zealand, Norway, Panama, Poland, Romania, Russian Federation, Saint Lucia, Slovakia, Spain, Tajikistan, Ukraine, the former USSR.
9. Para. 8.
10. Para. 5 of the part entitled "Suggestions concerning methods of application".
11. Part IX, entitled "Migrant workers" (paras. 57-60).
12. Para. 4(d) of Part III, entitled "Action at the national level".
13. Preamble, para. 15 and Part X, entitled "International migration and employment" (paras. 39-44).
14. Arts. 8 and 26(1)(i).
15. Art. 20(3)(a).
16. Preamble and Art. 8(2).
17. Para. 8(b).
18. Guidelines are adopted by ILO technical meetings to provide indications of best practice on conditions of work in particular sectors. They do not have the legal force of Conventions and Recommendations, but are useful when such instruments have not yet been adopted on a given subject.
19. W.R. Böhning: Employing foreign workers: A manual on policies and procedures of special interest to middle- and low-income countries (Geneva, ILO, 1996); M.I. Abella: Sending workers abroad: A manual for low- and middle-income countries (Geneva, ILO, 1997).
20. For further information see ILO "International migration and migrant workers", report to the Committee on Employment and Social Policy, GB.265/ESP/2, Mar. 1996, para. 44.
21. Agenda for Development, Ch. E: Population, development and international migration, para. 140.
22. The Preamble to the Convention refers specifically in its fifth paragraph to the work of the ILO in the field of international labour migration.
23. The Convention defines a "migrant worker" in Art. 2(1) as "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". Cholewinski analyses the significance of the term "to be engaged" in relation to the drafting procedure; see R. Cholewinski.: Migrant workers in international human rights law (Oxford, Clarendon Press, 1997), pp. 150-151.
24. Bosnia and Herzegovina, Cape Verde, Colombia, Egypt, Morocco, Philippines, Seychelles, Sri Lanka and Uganda. Two other States, Chile and Mexico, have signed the Convention, the first step towards ratification.
25. 151 ratifications as at 11 Dec. 1998.
26. ICERD, Art. 1.2.
27. See, inter alia, HRI/GEN/1/Rev.2 (1993) and CERD/C/304/Add.35 (1997).
28. "The World Conference on Human Rights urges all States to guarantee the protection of the human rights of all migrant workers and their families." See s. 2 of the Vienna Declaration and Programme of Action, A/CONF.157/24, UNO 1993.
29. "Countries should guarantee to all migrants all basic human rights as included in the Universal Declaration of Human Rights." See Ch. X of the Report of the International Conference on Population and Development, A/CONF.171/13, UNO 1994.
30. States should "formulate or strengthen measures to ensure respect for and protection of the human rights of migrants, migrant workers and their families". See Ch. 1, resolution 1, Annex 1/2 of the Report of the World Summit for Social Development, A/CONF.166/9, UNO 1995.
31. "Governments must ensure the full realization of the human rights of all women migrants, including women migrant workers, and their protection against violence and exploitation." See Ch. 1, resolution 1, Annex II of the Report of the Fourth World Conference on Women, A/CONF.177/20, UNO 1995.
32. For General Assembly documents, see, inter alia, A/RES/52/109; A/RES/52/98; A/RES/52/97; A/RES/51/85; A/RES/51/81; A/RES/51/80; A/RES/51/79; A/RES/51/66; A/RES/51/65, A/RES/50/135; A/RES/49/147.
33. For ECOSOC resolutions, see, inter alia, 1997/2; 1993/8; 1991/35; 1990/78; 1990/46. For ECOSOC decisions, see, inter alia, 1995/294.
34. In Feb. 1996, the Working Group published and disseminated widely a report in the form of final guidance notes, entitled Issues in International Migration and Development, updated in Sep. 1996.
35. For examples of Commission resolutions, see, inter alia, 1997/73; 1996/21; 1995/12. The working group takes its legislative authority from the Commission on Human Rights resolution 1997/15. See E/CN.4/1998/L.27; E/CN.4/1998/L.28; E/CN.4/1998/L.30. The mandate of the Special Rapporteur is contained in the Commission on Human Rights resolutions 1993/20 and 1994/64 and the Economic and Social Council decision 1994/307.
36. Sub-Commission resolution 1998/10.
37. See E/CN.9/1997/4.
38. Other general instruments of some relevance to migrant workers include the European Convention on Social Security and its Protocol, and a series of recommendations of the Council's Committee of Ministers. See Council of Europe: Activities of the Council of Europe in the migration field, Strasbourg, 1996.
39. The Council of Europe has also adopted a number of instruments relating to the protection of national minorities and religious and ethnic minorities. While these may overlap with the protection of migrant workers, as is the case with the ICERD, they are not of relevance to migrant workers per se. In 1997, a new Convention, the European Convention on Nationality, was opened for signature, and may prove to be of relevance to migrants intending to reside permanently in a State of which they are currently not nationals. The activities in relation to national minorities of the Organization for Security and Cooperation in Europe (OSCE) should also be noted in this regard, in particular the work of the High Commissioner on National Minorities.
40. See Cholewinski, op. cit., pp. 324-325.
41. In 1966, the States of the subregion concluded the subregional integration agreement which created the Andean Community.
42. For example, Trends in international migration, OECD Annual Report, 1997 (published 1998).
43. The conclusion of bilateral agreements relating to international migration of course does not only concern the regulation of migration flows but also the social consequences of migration, notably in the field of social security.
44. It has been argued that the outcome of these attempts were not bilateral labour migration agreements as such, but rather "more like framework agreements or statements of mutual cooperation regarding the recruitment and protection of foreign workers", Abella, op. cit., p. 64.
45. See footnote 57 (Ch. 4).
46. For more details on the development of bilateral migration agreements and the role of the ILO, see Abella, op. cit., pp. 63-67, and Böhning, op. cit, pp. 29-32.
47. In 1996 the Working Group produced a policy paper. See Public Services International: Going out to work: Trade unions and migrant workers (PSI 1996).
48. See European compendium of good practice for the prevention of racism at the workplace (European Foundation for the Improvement of Living and Working Conditions, 1997).
Updated by HK. Approved by RH. Last update: 26 January 2000.