Population Watch

HUMAN RIGHTS APPROACH TO MIGRATION

Migration & Human Rights: Some Basic Facts:

1. Immigrants, Refugees should not be seen as a burden.--UN SG Kofi Annan f
2. Migration is the manifestation of the very natural desire of people to exercise freedom of movement--Jan Kavan, President of the UN General Assembly
3. No Western migrant-receiving country has ratified the Convention, even though the majority of migrant workers (nearly 100 million out of a total of 175) live in Europe and North America. Other important receiving countries, such as India, Japan, Australia and the Gulf States, have not ratified the Convention either.
4. The countries that have ratified the Convention are home to some 4.5 million migrants, who will enjoy the protection offered by the Convention from 1st July 2003. However, they represent only 2.6 per cent of the world total migrant population, which is approximately 175 million.
5. Being in one way or another perceived as ‘different’, they often encounter hostility: they are sometimes used as scapegoats and may face racism and xenophobic violence. The Convention constitutes an answer to this vulnerability.

Vulnerabilities

• Migrants all share a common characteristic: they live and work in a country of which they are not citizens.
• They face the challenge of adapting to a society that is not their own and that may reject them.
• As non-citizens, they usually have fewer rights than the native population.
• They suffer directly from the widespread idea that migrants are not entitled to the full protection of human rights laws: this is a fundamentally misguided idea from a human rights perspective which contributes to migrants’ difficult access to social protection and welfare.
• Migrants do not always enjoy the protection provided by specific institutions or legal provisions. Workers’ rights that are defended by unions, do not always include migrant workers in their activities.
  

Racism and Xenophobia

• Xenophobia increasingly occurs against people of identical physical characteristics, even of shared ancestry, when such people arrive, return or migrate to States or areas where occupants consider them outsiders.
• Racism generally implies distinction based on difference in physical characteristics, such as skin coloration, hair type, facial features, etc, xenophobia denotes behavior specifically based on the perception that the other is foreign to or originates from outside the community or nation.
• Xenophobia is as the intense dislike or fear of strangers or people from other countries. Xenophobia is as an attitudinal orientation of hostility against non-natives in a given population.
• Xenophobia describes attitudes, prejudices and behavior that reject, exclude and often vilify persons, based on the perception that they are outsiders or foreigners to the community, society or national identity.

Criminalization

• Frequent news reports attribute both particular incidences and general rising crime rates to foreigners or immigrants
• Immigration control put in the same category as crime, arms and drug control, and the generalized use of the terminology of illegal migrant or illegal alien.
• Often denial of the right to due process resulting in arbitrary expulsion and voluntary return
• Illegal and clandestine migration: Halting the traffic flow means diverting thru illegal channels
   

Exploitation

• Migrant labour fills the three-D jobs, dirty, dangerous and difficult. Migrant labour has long been utilized in developed and under-developed economies as a low cost means to sustain economic enterprises.
• Migrant labour continues to be used in many countries to ensure low cost provision of agricultural produce, to provide domestic service, to ensure low cost construction labour, and to provide services in the sex industry.
• Migrants without authorization for entry and or employment, are usually at the margin of protection by workplace safety, health, minimum wage and other standards;
•  They often are employed in sectors where such standards are non-existent, non-applicable or simply not respected or enforced.
• Organizing migrants and immigrants into unions or organizations to defend their interests and rights is often extremely difficult.
• Easily intimidated and disrupted by the threat or actual practice of deportation.
• Irregular migrants are removable from the host country when domestic unemployment rises and/or when rising political tensions prompt the targeting of scapegoats.

Visible Discrimination

• Targets of suspicion or hostility in the communities where they live and work. 
• Different standards are often applied to nationals, on the one hand, and migrants, on the other, as regards job tenure, and contracts may deprive migrants of certain advantages.  
• Living conditions for migrant workers are often unsatisfactory. Low incomes, high rents, housing shortages, the size of migrants' families, and local prejudice against foreign elements
• Although migrant workers contribute to social security schemes, they and their families do not always enjoy the same benefits and access to social services as nationals of the host State.  
• A solitary existence handicaps the development of normal contacts with the community in which the migrant lives and affects his or her well-being leading to loss of cultural identity
• International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

The Convention: Human Rights Components

1. Migrant workers are viewed as more than laborers or economic entities. They are social entities with families and accordingly have rights, including that of family reunification.
2. The Convention recognizes that migrant workers and members of their families, being non nationals residing in states of employment or in transit, are unprotected. Their rights are often not addressed by the national legislation of receiving states or by their own states of origin.
3. It provides, for the first time, an international definition of migrant worker, categories of migrant workers, and members of their families. It also establishes international standards of treatment through the elaboration of the particular human rights of migrant workers and members of their families.
4. Fundamental human rights are extended to all migrant workers, both documented and undocumented, with additional rights being recognized for documented migrant workers and their families, notably equality of treatment with nationals of states of employment in a number of legal, political, economic, social and cultural areas.
5. The Convention seeks to play a role in preventing and eliminating the exploitation of all migrants, including an end to their illegal or clandestine movements and to irregular or undocumented situations.
6. It attempts to establish minimum standards of protection for migrant workers and members of their families that are universally acknowledged.
7. Implementation of its provisions would provide a significant measure of protection for the basic rights of nearly all other migrants in vulnerable situations, notably those who are in irregular situations.

Salient Features of the Convention

• prevents inhumane living and working conditions, physical and sexual abuse and degrading treatments (articles 10-11, 25, 54)
• guarantees migrants’ rights to freedom of thought, expression and religion (articles 12-13),
• guarantees migrants’ access to information on their rights (articles 33, 37)
• ensures their right to legal equality, which implies that migrant workers are subject to correct procedures, have access to interpreting services and are not sentenced to disproportionate penalties such as expulsion (articles 16-20, 22)
• guarantees migrants’ equal access to educational and social services (articles 27-28, 30, 43-45, 54),
• ensuring that migrants have the right to participate in trade unions (articles 26, 40)
• ensures that migrants can return to their country of origin if they wish to and that they are allowed to pay occasional visits and are encouraged to maintain cultural links (articles 8, 31, 38)
• guarantees migrants’ political participation in the country of origin (articles 41-42)
  ensures migrants’ right to transfer their earnings to their home country (articles 32, 46-48).

ILO Conventions

1. Migration for Employment Convention (Revised) (No. 97) of 1949
2. Migrant Workers (Suppl Provisions) Convention (No. 143) of 1975.
    

• Convention 97 calls upon ratifying States to provide relevant information to other ILO member States & to the organization, to take steps against misleading propaganda, & to facilitate the departure, journey & reception of migrants.
• Requires ratifying States to put migrants lawfully within their territory on the same footing as their own nationals in applying a wide range of laws and regulations relating to their working life, without discrimination
• Convention 143 provides that States must respect the basic human rights of all migrant workers, prevent clandestine migration for employment and stop manpower trafficking activities. States must declare and pursue a policy to secure equality of treatment in respect of matters in employment and occupation, social security, and trade union and cultural rights.

Other International Protection Systems:

• The United Nations High Commissioner for Human Rights (UNHCHR) has a Special Rapporteur dealing with the human rights of migrants;
• The United Nations Educational, Scientific and Cultural Organization (UNESCO) is concerned with migrants’ human rights and with the promotion of migrants’ social integration, as well as with the protection of cultural diversity.
• The International Organization for Migration (IOM), a member of the Steering Committee is a leading international organization in the field of migration. It is an intergovernmental agency outside the UN system with some 100 members. It seeks to advance the understanding of migration issues and to promote the orderly management of migration to the benefit of both migrants and societies.

Special Rapporteur on VAW

Preliminary report, 1994 (E/CN.4/1995/42, para. 233), calls on sending and receiving States:

• To act affirmatively to regulate private recruitment agencies for women migrant workers;
• To establish outreach programmes for migrant women, providing legal, social and educational assistance;
• To ensure that police stations have trained female officers charged with helping migrant women to report cases of abuse;
• To ensure that migrant women are not excluded from the protection of national minimum labour standards, and actively to prosecute employers for violation of those standards.

Human Rights and Migrant Workers

Include the following universal, indivisible, interconnected and interdependent human rights:

• The human right to work and receive wages that contribute to an adequate standard of living.
• The human right to freedom from discrimination based on race, national or ethnic origin, sex, religion or any other status, in all aspects of work, including in hiring, conditions of work, and promotion, and in access to housing, health care and basic services.
• The human right to equality before the law and equal protection of the law, particularly in regard to human rights and labor legislation, regardless of a migrant's legal status.
• The human right to equal pay for equal work.
• The human right to freedom from forced labor.
• The human right to protection against arbitrary expulsion from the State of employment. The human right to return home if the migrant wishes.
  The human right to a standard of living adequate for the health and well-being of the migrant worker and his or her family.
• The human right to safe working conditions and a clean and safe working environment.
• The human right to reasonable limitation of working hours, rest and leisure.
• The human right to freedom of association and to join a trade union.
• The human right to freedom from sexual harassment in the workplace.
• The human right to protection during pregnancy from work proven to be harmful.
• The human right to protection for the child from economic exploitation and from any work that may be hazardous to his or her well-being and development.
• The human right of children of migrant workers to education.
• The human right of migrants and their families to reunification.

Provisions of Human Rights Law

A) "States Parties undertake ... to respect and to ensure to all migrant workers and ... their families within their territory ... rights ... without distinction of any kind such as sex, race, colour, language, religion..., national, ethnic or social origin, nationality ... or other status.... Migrant workers and members of their families shall be free to leave any State, including their State of origin...; ... shall have the right at any time to enter and remain in their State of origin.... No migrant worker or member of his or her family shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.... No migrant worker ... shall be held in slavery or servitude...; ... shall be required to perform forced or compulsory labour.... Migrant workers and members of their families shall have the right to freedom of thought, conscience and religion...; ... shall have the right to equality with nationals of the State concerned before the courts and tribunals...; shall not be subject to measures of collective expulsion....

B) Every migrant worker and every member of his or her family shall have the right to recognition everywhere as a person before the law...; ... shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration ... overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship ... minimum age of employment.... States Parties recognize the right of migrant workers ... To take part in meetings and activities of trade unions.... With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfill the requirements provided for by .. applicable legislation.... Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned.... Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality...; ... shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned...."

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Articles 7, 8, 10, 11, 12, 18, 22, 24, 25, 26, 27, 28, 29, and 30

"Each Member ... undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters: ... remuneration, ... hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons; ... membership of trade unions and enjoyment of the benefits of collective bargaining; ... accommodation; ... social security (... legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment....)"

Migration for Employment Convention (Revised) (No. 97), Article 6

"Each Member ... undertakes to respect the basic human rights of all migrant workers.... Each Member ... undertakes to ... pursue a ... policy designed to promote and to guarantee ... equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory.... Each Member shall ... formulate and apply a social policy ... which enables migrant workers and their families to share in advantages enjoyed by its nationals while taking account, without adversely affecting the principle of equality of opportunity and treatment, of such special needs as they may have until they are adapted to the society of the country of employment; ... take all steps to assist and encourage the efforts of migrant workers and their families to preserve their national and ethnic identity and their cultural ties with their country of origin, including the possibility for children to be given some knowledge of their mother tongue; ... A Member may take all necessary measures ... and collaborate with other Members to facilitate the reunification of the families of all migrant workers legally residing in its territory...."

Migrant Workers (Supplementary Provisions) Convention (No. 143), Articles 1, 10, 12, and 13

"No one shall be held in slavery or servitude.... Everyone has the right to freedom of peaceful assembly and association.... Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Everyone, without any discrimination, has the right to equal pay for equal work. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form and to join trade unions for the protection of his interests. Everyone has the right to rest and leisure, including reasonable limitation of working hours.... Everyone has the right to a standard of living adequate for the health and well-being of himself and his family ... and the right to security in the event of unemployment, sickness, disability ... or other lack of livelihood ...."

Universal Declaration of Human Rights, Articles 4, 20, 23, 24, and 25

"The States Parties ... recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.... The States Parties ... recognize the right of everyone to ... just and favourable conditions of work which ensure ... fair wages and equal remuneration for work of equal value without distinction of any kind...; a decent living ...; safe and healthy working conditions; equal opportunity for everyone to be promoted ...; rest, leisure, and reasonable limitation of working hours .... the right of everyone to form trade unions and join the trade union of his choice ... for the promotion and protection of his economic and social interests...; the right to strike... the right ... to social security.... Children and young persons should be protected from economic ... exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law.... States Parties ... recognize the right of everyone to an adequate standard of living for himself and his family...."

International Covenant on Economic, Social and Cultural Rights, Articles 6, 7, 8, 9, 10, 11

"No one shall be held in slavery .... No one shall be required to perform forced or compulsory labour.... An alien lawfully in the territory of a State Party ... may be expelled ... only ...in accordance with law.... All persons shall be equal before the courts and tribunals.... The right of peaceful assembly shall be recognized.... Everyone shall have the right to freedom of association ..., including the right to form and join trade unions.... All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.... In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language...."

International Covenant on Civil and Political Rights, Articles 8, 13, 14, 21, 22, 26, & 27

"States Parties shall take all appropriate measures ... to ensure, on a basis of equality of men and women, ... the right to work as an inalienable right of all human beings; the right to the same employment opportunities...; the right to free choice of profession and employment, the right to promotion, job security and ... training; the right to equal remuneration ... and to equal treatment in respect of work of equal value...; the right to social security...; the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction....."

Convention on the Elimination of All Forms of Discrimination Against Women, Article 11

"States Parties undertake to prohibit and to eliminate racial discrimination ... and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law ... in the enjoyment of ... the right to freedom of peaceful assembly and association...; the rights to work, to free choice of employment, to just and favourable conditions of work, ...to equal pay for equal work, to just and favourable remuneration; the right to form and join trade unions...."

Convention on the Elimination of All Forms of Racial Discrimination, Article 5

A) "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality.... States Parties shall ensure that a child shall not be separated from his or her parents against their will.... [A]pplications by a child or his or her parents to enter or leave a State party for the purpose of family reunification shall be dealt with ... in a positive, humane and expeditious manner.... States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country.... States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.... the right ... to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.... the right of the child to education, and ... shall ... make primary education compulsory and available free to all....

B) States Parties agree that the education of the child shall be directed to ... the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living [and] the country from which he or she may originate.... In those States in which ethnic, religious or linguistic minorities ... exist, a child belonging to such a minority ... shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.... States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.... States Parties shall ... provide for a minimum age ... for admissions to employment...; provide for appropriate regulation of the hours and conditions of employment...."

Convention on the Rights of the Child, Articles 7, 9, 10, 15, 27, 28, 29, 30, and 32

"Each Member... undertakes to suppress the use of forced or compulsory labour in all its forms...."

ILO Forced Labour Convention (No. 29), Article 1

"Workers and employers, without distinction whatsoever, shall have the right to establish and ... to join organizations of their own choosing...."

ILO Freedom of Association and Protection of the Right to Organize Convention (No. 87), Article 2

"Each Member shall ... ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value."

ILO Equal Remuneration Convention (No. 100), Article 2

"Each Member ... undertakes to declare and pursue a ... policy ... to promote ... equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination...."

ILO Discrimination (Employment and Occupation) Convention (No. 111), Article 2


"Each Member... undertakes to pursue a ... policy ... to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.... The minimum age ... shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.... The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons shall not be less than 18 years...." 

ILO Minimum Age Convention (No. 38), Articles 1, 2, & 3

Governments' Commitments

"Great importance must be given to the promotion and protection of the human rights of persons belonging to groups which have been rendered vulnerable, including migrant workers, the elimination of all forms of discrimination against them.... The World Conference on Human Rights urges all State to guarantee the protection of the human rights of all migrant workers and their families. The World Conference ... considers that the creation of conditions to foster greater harmony and tolerance between migrant workers and the rest of the society of the State in which they reside is of particular importance...."

Vienna Declaration, Part II, paras. 24, 33 and 34

"Countries receiving documented migrants should provide proper treatment and adequate social welfare services for them and their families, and should ensure their physical safety and security .... Countries should guarantee to all migrants all basic human rights as included in the Universal Declaration of Human Rights.... Objectives ...: To ensure the social and economic integration of documented migrants ... and their equal treatment before the law; ... To eliminate discriminatory practices against documented migrants, especially women, children and the elderly; ... To ensure protection against racism, ethnocentrism and xenophobia; ... To promote the welfare of documented migrants and members of their families.... Special efforts should be made to enhance the integration of the children of long-term migrants by providing them with educational and training opportunities equal to those of nationals.... Governments, particularly those of receiving countries, must recognize the vital importance of family reunification and promote its integration into their national legislation in order to ensure the protection of the unity of the families of documented migrants.... Objectives ... To address the root causes of undocumented migration;... to prevent the exploitation of undocumented migrants and to ensure that their basic human rights are protected...."

Cairo Programme of Action, Principle 12 and paras. 10.10, 10.12, and 10.16


"We will ... ensure that migrant workers benefit from the protections provided by relevant national and international instruments, take concrete and effective measures against the exploitation of migrant workers, and encourage all countries to consider the ratification and full implementation of the relevant international instruments on migrant workers.... We commit ourselves to promoting social integration by fostering societies that ... are based on ... non-discrimination, tolerance, respect for diversity, equality of opportunity, ... and participation of all people.... To this end ... we will ... Formulate or strengthen measures 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. "

Copenhagen Declaration, Commitments 3 and 4

"The Platform for Action recognizes that women face barriers to full equality and advancement because of such factors as their race, ... language, ethnicity, culture ... or because of other status.... Additional barriers also exist for ... displaced ... immigrant ... and migrant women, including women migrant workers.... Actions to be taken: ... Ensure the full realization of the human rights of all women migrants, including women migrant workers, and their protection against violence and exploitation; introduce measures for the empowerment of documented women migrants...; facilitate the productive employment of documented migrant women through greater recognition of their skills, foreign education and credentials, and facilitate their full integration into the labour force.... Ensure that internally displaced women have full access to economic opportunities and that the qualifications and skills of immigrant and refugee women are recognized.... Establish linguistically and culturally accessible services for migrant women and girls, including women migrant workers, who are victims of gender-based violence. Recognize the vulnerability to violence and other forms of abuse of ... women migrant workers, whose legal status in the host country depends on employers who may exploit their situation...."

Beijing Platform for Action, paras.58(k)and(l), & 125(b)& (c).