January 2001
WCAR Think Papers
A joint project of Human Rights Documentation Center (HRDC),
International Service for Human Rights (ISHR) and South Asia Human Rights
Documentation Centre (SAHRDC)
The
Rights of Migrant Workers: Keeping the issue on track
The rights of migrant workers is an issue likely to receive significant attention at the World Conference Against Racism. One reason for this special consideration is that the International Convention on the Protection of All Migrant Workers and Members of Their Families finally appears to be nearing the number of ratifications necessary to bring it into force. Another reason is that international initiatives in this arena have recently incorporated a relatively strong gender-perspective and have, accordingly, engaged efforts to resolve burgeoning crises such as trafficking in persons.
A final reason that migrant workers rights will receive special consideration is that several States (“sending countries”) consider it in their self-interest to push for stronger international standards. Nongovernmental organisations can, therefore, count on vocal support from a number of governments. Admittedly, as we discuss below, some governments utilize the migrants workers issue mainly to score political points against ideological opponents (e.g., the Cuba–United States of America rift). Such political manoeuvring, however, distorts the real issues involved. One of the tasks of NGOs and genuinely concerned States will be to direct the discussion towards a principled consideration of the pressing needs of migrant workers and to explain the benefits of stronger international standards for all countries -- sending and receiving alike.
The political position a State will adopt on the issue of migrant workers at the WCAR can be anticipated by whether it is a so-called sending or receiving country. In this regard, recent shifts in international migration should be taken into account. According to the International Labour Organisation (ILO), major new sending countries include Bangladesh, Egypt and Indonesia; while major new receiving countries include Italy, Japan, Malaysia and Venezuela.
The group of States that are willing to support stronger international standards can also be anticipated by examining the status of ratifications of major international instruments. There are three principal international instruments for the protection of migrant workers rights: (1) the International Convention on the Protection of All Migrant Workers and Members of Their Families; (2) the ILO Migration for Employment Convention (Revised) (No. 97); and (3) the ILO Migrant Workers (Supplementary Provisions) Convention (No. 143). As a general rule, the States that have ratified or signed these instruments (See Table) can be expected to offer the greatest support for advancing international standards. The problem is that all three conventions suffer from an exceedingly low number of ratifications, indicating the lack of overall support for the issue.
Consider the numbers. The International Convention on the Protection of All Migrant Workers and Members of Their Families was opened for signature in 1990. The Convention has yet to come into force, even though it requires only 20 ratifications for that to occur. As of 16 October 2000, 15 States had ratified the Convention and 9 had signed it. The ILO Conventions have also received a relatively low number of ratifications. ILO Convention No. 97 has 41 ratifications and ILO Convention No. 143 has a paltry 18. Twelve States have ratified both ILO Conventions, thus reducing even further the number of overall States party. In short, an uphill battle on the issue of migrant workers rights awaits NGOs at the WCAR.
NGOs should also be cognizant of a particular inconsistency in State politics on migrant workers rights: governments that sponsor stronger resolutions, but do not abide the resolution’s basic agreement. For example, at the most recent session of the United Nations Commission on Human Rights, 20 States sponsored the Resolution on the International Convention on Migrant Workers Rights. The Resolution “call[ed] upon all member States to consider the possibility of signing and ratifying or acceding to the Convention as a matter of priority, [and] expresse[d] the hope that this international instrument will enter into force at an early date.”[1] Eight of the States that sponsored the Resolution have neither ratified nor signed the Convention themselves. The group of eight States guilty of this double standard are: Cuba, Ecuador, El Salvador, Haiti, Pakistan, Peru, Portugal and Tunisia. Some of these States specifically made strong statements that would suggest they supported the Convention in practice. For instance, according to the UN’s official summary record:
“[The representative of Cuba”] said that discrimination against migrants was one of the worst forms of contemporary racism. It was regrettable that the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families had still not received the 20 ratifications required for it to enter into force. Of even greater concern was the fact that not one of the developed countries which were hosts to tens of millions of migrant workers had signed the Convention.”[2]
Admittedly, Ecuador and El Salvador stated during the proceedings that they were intending to ratify the Convention.[3] As of 16 October 2000, however, neither has signed, let alone ratified, the Convention.
International Convention on the Protection of All
Migrant Workers and Members of Their Families
Signatures: Bangladesh, Chile, Comoros, Guatemala, Guinea-Bissau,
Paraguay, Sao Tome and Principe, Tajikistan and Turkey
Ratifications: Azerbaijan, Bolivia, Bosnia and Herzegovina, Cape
Verde, Colombia, Egypt, Ghana, Guinea, Mexico, Morocco, Philippines, Senegal,
Seychelles, Sri Lanka, Uganda
ILO Convention concerning Migration for Employment
(Revised) (No. 97)
Algeria, Bahamas, Barbados, Belgium, Belize, Bosnia
and Herzegovina, Brazil, Burkina Faso, Cameroon, Cuba, Cyprus, Dominica,
Ecuador, France, Germany, Grenada, Guatemala, Guyana, Israel, Italy, Jamaica,
Kenya, the former Yugoslav Republic of Macedonia, Malawi, Malaysia, Mauritius,
Netherlands, New Zealand, Nigeria, Norway, Portugal, Saint Lucia, Slovenia,
Spain, Tanzania, Trinidad and Tobago, United Kingdom, Uruguay, Venezuela, the
former Socialist Federal Republic of Yugoslavia and Zambia
ILO Convention concerning Migrant Workers (Supplementary
Provisions) (No. 143)
Benin, Bosnia and Herzegovina, Burkina Faso, Cameroon,
Cyprus, Guinea, Italy, Kenya, the former Yugoslav Republic of Macedonia,
Norway, Portugal, San Marino, Slovenia, Sweden, Togo, Uganda, Venezuela and the
former Socialist Federal Republic of Yugoslavia
The above summary of the political backdrop should already indicate some of the goals for the WCAR and strategic problems in achieving them. We suggest the following be part of the objectives for the conference on the issue of migrant workers rights.
One of the chief aims should be to bring into force the International Convention on the Protection of All Migrant Workers and Members of Their Families. The Office of the High Commissioner for Human Rights (OHCHR) should, as a matter of priority, set itself the goal of being able to announce at the opening of the WCAR that the International Convention has received the requisite 20 ratifications necessary to bring it into force. Notably, the momentum is working in favour of making this possible. The International Covenant has recently experienced a small upsurge of signatures and ratifications: Six of the nine States that have signed the Convention did so in 2000, and five of the States that have ratified the Convention did so in 1999-2000. The OHCHR’s task is made easier by the fact that many States have not ratified the Convention due to lack of knowledge of its value and of its relevance to their situation as either a sending or receiving country.
Education and awareness, while lost causes in many other contexts, may be uniquely effective in the case of obtaining ratification of the International Convention. Various reports have indicated that the low number of ratifications is due to lack of knowledge about the Convention’s existence or misunderstandings about the obligations it imposes. NGOs, concerned States and others should ensure that States understand, for example, that the Convention: applies rules to sending countries (several sending States, for example, have claimed disinterest in the Convention on the specious ground that they do not receive migrant workers); attempts to control illegal immigration to the benefit of receiving countries (See, e.g., Article 68); and is not redundant with the ILO Conventions (for example, the International Convention covers classes of migrants not included in either ILO Convention such as itinerant and self-employed migrant workers).[4]
In seeking to obtain the remaining five ratifications and, beyond that, expanding the number of States parties, NGOs, concerned States and others should place special pressure on the group of eight States that have strongly supported ratification of the Convention in rhetoric but not practice. The representatives of some of these State’s may genuinely need to be reminded of their government’s vocal support for the Commission on Human Rights Resolution and the lack of corresponding action on their part; that is, conceivably this is an area in which some governments might not be matching rhetoric with action due to information gaps. If these States do not resolve this discrepancy, however, the rhetorical positions their representatives adopt in other contexts will likely be distrusted, especially if NGOs and others bring attention to the clear double-standard they have adopted on this issue.
Important aspects of migrant workers rights can benefit considerably from establishing stronger standards and focusing international efforts on tackling the problem of corruption. Particular areas that can stand to benefit include eliminating: trafficking in persons; inhumane treatment by migrant smugglers; and abuses against undocumented migrant workers by employers and officials.
Elsewhere, HRDC and SAHRDC have argued that international efforts to counter trafficking have underestimated how local-level official corruption functions as a crucial variable in the trafficking in persons.[5] Although that discussion specifically concerned trafficking in women and children, the same principle applies to combating inhumane treatment by migrant smugglers. In this regard, States need not wait to abide by the principles of combating corruption enshrined in the two Protocols (on Trafficking and Smuggling) and Articles 8 and 9 of the newly minted United Nations Convention against Transnational Organized Crime.[6] Nor should the effort to combat corruption require a link to organized crime: individual officials responsible for knowingly assisting trafficking or inhumane treatment in smuggling should be stopped regardless.
The WCAR offers a unique opportunity to address lacunae in international standards on migrant workers rights. Three issues that have not received adequate international attention are: (1) the situation of internal migrant workers; (2) the intersection with abuses by multinational companies; and (3) remedies for lack of consular notice in certain legal proceedings. All three issues should receive attention in the text of the WCAR Declaration and Programme of Action.
While the first two are self-explanatory, the third deserves some
elaboration. Notably, at the United States-sponsored June 2000 International
Workshop on Best Practices Related to Migrant Workers and their Families, the
conference’s Final Report reaffirmed that the “1963 Vienna Convention on
Consular Relations obliges States Parties to inform foreigners arrested or
detained that they have the right to notify their consular representatives.”[7]
Such a statement on migrant workers rights does not advance international
standards. It is incontrovertible that the Vienna Convention already imposes
the obligation for consular access and notification. At the WCAR, States should
strive towards articulating stronger standards concerning remedies for
violations of the obligation. For example, NGOs might advocate for specific
language such as calling on States to suspend or reverse legal proceedings
in actions pursued against a foreigner in violation of international
obligations for consular access and notification.
These are obviously only some of the strategies for the WCAR on the issue of migrant workers rights. Other specific issues will be brought to the conference by international and national NGOs. The question is whether unrelated power politics between States will divert attention from the needs of migrant workers or whether the conference will stay the course of genuinely trying to promote racial justice in this arena.
[1] E/CN.4/2000/L.56, Agenda item 14 (a) (14 April 2000). The Resolution was ultimately adopted with this part of the draft text in tact. See E/CN.4/RES/2000/49 (adopted without a vote).
[2] E/CN.4/2000/SR.45, at para. 37 (Summary Record) (emphasis added).
[3] E/CN.4/2000/SR.45.
[4] Two resources for identifying such misunderstandings and effective responses are: (1) The Rights of Non-Citizens, Addendum, E/CN.4/Sub.2/1999/7/Add.1 (Working paper submitted by Mr. David Weissbrodt); and (2) International Labour Conference, Report III (1B), 87th Session, Geneva, June 1999 (General Survey on Migrant Workers) < www.ilo.org/public/english/standards/relm/ilc/ilc87/r3-1b.htm>.
[5] Human Rights Documentation Center & South Asia Human Rights Documentation Center, Combating Trafficking: The U. S. Initiative Well Intentioned -- Bad Design (4 August 2000 - HRF/24/00) <www.hrdc.net/sahrdc/hrfeatures/HRF24.htm>.
[6] Available at <www.uncjin.org/Documents/Conventions/conventions.html>.
[7] Text available at < www.iom.int/defaultmigrationweb.asp>.