Throughout the ages, people have been leaving their homelands in search of work. Mobility of labour has been the foundation for economic development in many societies and has contributed to growth and prosperity in both host and source countries. Migrant workers play a vital role in the global economy, and in 2010 the International Organization on Migration estimated the number of the migrants worldwide at 214 million, i.e., 3,1% of the world’s population. Unfortunately, the growing number of migrants due to the increased mobility of people from poorer areas to those better off is a cause of rising tension, particularly in the receiving countries. One problem is the perception of migrant workers as temporary guests, who will eventually go back ‘home’, when in reality they settle and become permanent members of society, entitled to rights as other citizens.
Traditionally, poverty and the inability to earn a decent living are major reasons behind migration from one country to another, as well as war, civil strife, insecurity and persecution arising from discrimination. But migrant workers and their families frequently find themselves in situations of vulnerability in their host countries, in part due to their living and working outside of their state of origin. They are aliens and may, because of that status alone, be targets of suspicion and hostility and, as they are frequently poor, they share the economic, social and cultural handicaps of marginalised groups in the host country. Migrant workers often face discrimination in terms of employment: exclusion from certain jobs, difficulty in access to vocational training and contracts that are inferior to those of nationals. Migrant workers are also known to have been subject to inferior working conditions, they have been denied the right to participate in trade unions and they are often assigned jobs that nationals do not want. Migrant workers are exceptionally vulnerable when they are recruited and employed illegally, often with criminal elements involved. Illegal migrants are more often than not targets of exploitation. They are at the mercy of their employers, forced to accept abhorrent conditions, in the worst cases amounting to modern day slavery or forced labour, incapable of seeking justice for fear of expulsion from the host country. Furthermore, children of migrants often need special measures to help them adapt to a foreign language and customs, especially when it comes to education in a new language.
Many receiving countries are conflicted as regards migration; on the one hand, considerations for the protection of human rights and humanitarian issues come into play, while, on the other, influences of increasing nationalism, racism and xenophobia weigh heavily. Unfortunately, the trend in policy of many receiving countries is gradually veering away from human rights protection towards the protection of borders.
A. Standards
Historically, the rights of migrant workers have fallen under general diplomatic protection, based on the international law governing the treatment of non-nationals. This system has gradually given way to specific standards and norms, articulated in international and national instruments, and today there is a large body of instruments that deal directly or indirectly with the rights of migrant workers.
In 1990, the UNGA adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) (see II??1.C.1). The main thrust of the Convention is that persons who qualify as migrant workers under its provisions are entitled to enjoy their human rights regardless of their legal status. The Convention does not create new rights for migrants, but aims at guaranteeing equality of treatment and the same working conditions for migrants and nationals, as well as guaranteeing the rights of migrants to maintain ties to their countries of origin. The Convention aims at:
? Preventing inhumane living and working conditions, physical and sexual abuse and degrading treatment (Articles 10, 11, 25, 54).
? Guaranteeing migrants’ rights to freedom of thought, expression and religion (Articles 12, 13).
?Guaranteeing migrants’ access to information on their rights (Articles 33, 37).
?Ensuring their right to legal equality. This 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).
?Guaranteeing migrants’ equal access to educational and social services (Articles 27–8, 30, 43–5, 54).
?Ensuring that migrants have the right to participate in trade unions (Articles 26, 40).
?Ensuring that migrants can return to their country of origin if they wish to, that they are allowed to pay occasional visits, and that they are encouraged to maintain cultural links (Articles 8, 31, 38).
?Guaranteeing migrants’ political participation in the country of origin (Articles 41, 42).
?Ensuring migrants’ right to transfer their earnings to their home country (Articles 32, 46–8).
Furthermore, the Convention establishes rules for recruitment of migrant workers, and for their return to their states of origin, it details the steps to be taken to combat illegal or clandestine migration and it imposes a series of obligations on parties in the interest of promoting ‘sound, equitable, humane and lawful conditions’ for the international migration of workers and members of their families. Although the Convention has entered into force, only a few states (26 as of July 2004) have become party to it, most of them countries that primarily send migrants abroad. For the time being, it looks as though several migrant-receiving countries are not willing to be bound by the Convention as many find the formulation of the rights unacceptable.
The ILO has been at the forefront in seeking solutions to problems facing migrant workers and their families. The two major ILO Conventions concerning migrant workers are ILO 97 Migration for Employment Convention (revised) and ILO 143 Migrant Workers Convention. These Conventions contain provisions dealing with all aspects of the working life of aliens, including access to information, recruitment, medical attention, family reunification, maintenance of their own culture and expulsion. Both Conventions aim at non-discrimination and equal treatment of migrant workers and nationals.
The ECHR does not contain special provisions addressing the rights of migrant workers, but applications have been based on Article 3 (prohibition of inhuman and degrading treatment) and Articles 5 and 6 (liberty and right to a fair and public hearing). Article 8 ECHR is important for migrants in cases where the right to family life is violated; it stipulates that ‘everyone has the right to respect for his private and family life, his home and his correspondence’ and it has led the former European Commission to observe that ‘in certain circumstances, refusals to give certain persons access to, or allow them to take up residence in, a particular country, might result in the separation of such persons from the close members of their family which could raise serious problems under Article 8 of the Convention’. Applications alleging violations of the rights of migrant workers have also been brought under Article 12 (right to marry) and Article 14 (non-discrimination).
Article 19 ESC guarantees the rights of migrant workers and their families to protection and assistance. Another important instrument is the European Convention on the Legal Status of Migrant Workers (1977) setting out, for instance, the right to family reunion (Article 12).
Within the EU, emphasis has also been placed on the rights of migrant workers. Relevant resolutions are, for instance, the Council Resolution of 21 January 1974 concerning a Social Action Programme, and the Council Resolution of 9 February 1976 on an Action Programme for Migrant Workers and Members of their Families. Also important is EEC Regulation 1408/71 (as amended) of the Council of 14 June 1971 on the Application of Social Security Schemes to Employed Persons and Their Families Moving within the Community.
Furthermore, the importance the EU places on migration issues is reflected in the Treaty of Maastricht and the Treaty of Amsterdam. The Treaty of Maastricht offers possibilities for the development of policies relating to immigration and asylum. Title VI (Justice and Home Affairs) of the treaty incorporates, in a binding provision, the member states’ obligation to co-operate in a number of areas of identified ‘common interest’, particularly asylum and immigration. The EU Commission has published a paper that identifies the need for a coordinated continent wide-strategy to harmonise national policy. The ‘Green Paper on an EU approach to managing economic migration’ (Com (2004) 811 final) noted that there was a need to create a common framework whereby information is shared between countries of origin, transit and destination. As Western European countries tend to be popular destinations for migrants, it is a major failure that the Green Paper makes no mention of the fact that not one of these countries has as of yet ratified the CMW.
With regard to migrants who are working in a host country illegally, there is an indication of the future policies of the EU to be found in the ‘Council Directive providing for sanctions against employers of illegally staying third country nationals’ (2007/0094 (COD)). This Directive, approved by the European Parliament, recommends that punitive measures be used to deter employers from knowingly employing illegal migrants. The punishments range from fines, temporary or permanent closure of the undertaking, and in the most serious case of repeat offenders, up to two years imprisonment. The Directive, which still has to be approved formally the European Council, has been criticised by some migrant groups as it could potentially pushing illegal workers further underground, subjecting them to an even greater risk of exploitation.
The Inter-American system has no legal instrument specific to migrant workers, nor do the current instruments include provisions on migrants. Migrant workers and their families are, however, entitled to the general protection guaranteed by the ACHR; particularly relevant is Article 22(9) which prohibits the collective expulsion of aliens. A major step in determining the content and scope of the rights of migrant workers was the Inter-American Court’s Advisory Opinion 18 on the ‘Juridical Condition and Rights of the Undocumented Migrants’.
In 2005 the Organisation of American States launched the Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families. This initiative, through the exchange of best practices and with the co-operation of countries of origin, transit and destination, seeks to protect the most vulnerable of migrants, while educating the citizens and government officials of receiving states on human rights. The programme assigns activities to organs, agencies and entities of the OAS and works with multilateral organisations such as the ILO and the UNCHR. The programme calls for activities of individual states, notably promoting the ratification and adherence to international standards on migrant rights. It also advocates the review of all pertinent national legislation to ensure their compatibility with such standards. The programme seeks to preserve the cultural identity of all migrants, whilst also encouraging the assimilation and political participation of migrants in their host countries. The creation of individual and collective methods for the detection and criminal prosecution of traffickers and smugglers is also targeted. The program further recommends bilateral agreements to ensure that social security contributions made in one state may be transferred to the migrant’s current residence.
B. Supervision
At the World Summit for Social Development in 1995, states committed themselves to ensure that migrant workers benefit from the protection provided by relevant national and international instruments. They pledged to take concrete and effective measures against the exploitation of migrant workers, and to encourage all states to consider ratifying and fully implementing international instruments relating to migrant workers.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) provides for the establishment of a Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. A state party can make a declaration that it recognises the competence of the Committee to receive and consider individual communications on behalf of persons who claim that their rights under the Convention have been violated. The effectiveness of this mechanism remains to be seen as its power depends on whether states will accept the Committee’s optional complaints procedure (see II§1.C). Of the existing mechanisms that deal with violations of the rights of migrant workers, the ILO procedures are currently considered to be the most effective.
In 1997, the UN Commission on Human Rights established the Working Group of Intergovernmental Experts on the Human Rights of Migrants with a mandate to gather all relevant information on the obstacles existing to the effective and full protection of the human rights of migrants, and to elaborate recommendations to strengthen the promotion, protection and implementation of the human rights of migrants. Furthermore, in 1999 the Commission appointed a Special Rapporteur on the Human Rights of Migrants, to examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of migrants, including obstacles and difficulties for the return of migrants who are non-documented or in an irregular situation. The Rapporteur’s mandate is to receive information on violations and make recommendations and promote effective application of human rights standards and norms. The Rapporteur has expressed concern that measures aimed at stopping irregular migration frequently undermine migrants’ basic rights, including the right to seek asylum and minimum guarantees against arbitrary deprivation of liberty.
Like the UN, the OAS has created the post of a Special Rapporteur on Migrant Workers and Members of their Families. The Rapporteur meets with international and domestic organisations involved in the area of migrant workers and conducts on-site visits, in addition to participating in various international migration and migrant rights events. Furthermore, though no specific provisions relating to migrant workers are included in the Inter-American instruments, migrant workers are protected under the general provisions of the American Convention, generating the development of certain principles in the ‘jurisprudence’ of the Inter-American Commission and Court, for instance: a) children born of undocumented migrants have the right to the nationality of the state where they are born; b) states must ensure the protection of families and children they have to avoid expelling children without their parents and vice versa; c) the collective expulsion of aliens is prohibited; and d) all aliens, legal or illegal, have a right to a fair trial and judicial protection, including access to translation, to consular representatives, and to effective judicial recourse for the determination of their rights to remain in the country (see, e.g., Inter-American Commission discussion on Haitian migrant workers in the Dominican Republic, Country Report 1999 and The Yean and Bosica Children v. The Dominican Republic). In addition, the Inter-American Court has issued Advisory Opinion No. 18 on the Juridical Condition and Rights of the Undocumented Migrants.
The Committee of Independent Experts of the ESC (now the European Committee of Social Rights) has dealt with issues relating to migrant workers. The Committee has noted that national reports examined did not show that contracting parties complied with the ESC in practice. The Committee has said that the equal treatment set out in the ESC was not always ensured between migrants and the rest of the population and that most countries covered by the Charter had an age limit of 18 years for family reunions, while the Appendix to the Charter set the limit at 21 years. Finally, the Committee stressed that in some countries covered by the Charter migrant workers do not have a right of appeal before an independent body against a deportation order.
Other European institutions relevant to the rights of migrant workers are the European Commission Against Racism and Intolerance (ECRI) and the European Committee on Migration. The European Committee on Migration aims at developing European co-operation on migration, on the situation and social integration of populations of migrant origin and refugees. Unfortunately, to date, the supervision of this Committee has been rather weak.
The European Platform for Migrant Workers Rights (EPMWR) is a lobby organisation comprised of NGOs such as Amnesty International and national migrant bodies. The Platform monitors migrant welfare, and lobbies for ratification by European countries of the CMW.
The African Commission has recently established the position of Special Rapporteur on Refugees, Asylum Seekers, Migrants and IDPs in Africa. The mandate of the Rapporteur is to study and create awareness of the plight of migrants, to engage state parties in protecting migrants from exploitation and to develop strategies to reduce such exploitation through recommendations made to the Commission.
Finally a leading international organisation in the field of migration is the International Organisation for Migration (IOM). The IOM 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. A leading NGO promoting the rights of migrants is wMigrant Rights International, an independent monitoring body aiming to promote recognition and respect for the rights of all migrants and to advocate for ratification of the CMW. Migrant Workers 339