1. Migration in ACP Countries :Promoting Development and Enhancing Protection

2. Why do migrant workers need protection? The need for a normative framework ILO and International Labour Standards The broader normative context International human rights instruments International Convention on Migrant Workers Regional frameworks Multilateral Framework on Labour Migration Migration in ACP Countries : Promoting Development and Enhancing Protection 3. Why specific protection and policies?Violations of migrant workers rights At risk of exploitation in recruitment process Non-citizens and rarely benefit from full equal treatment Often low-skilled precarious employment Agriculture, domestic work, construction Multiple discriminations, especially women MW Particular risks for migrants Example: rates of occupational injury and death double for foreign workers than citizens where data obtained More at risk if in an irregular situationMigration in ACP Countries :Promoting Development and Enhancing Protection 4. The need for a normative frameworkHuman beings as workers and family members are at the heart of international labour migration It has long been recognized that market mechanisms alone do notassure respect for and protection of migrants human and labourrights Absence of recognition of migrants rights and lack of theirenforcement continues to entail high costs in abuse, exploitation andviolation of migrants rights and dignity, including in the workplace. Anti-foreigner xenophobic violence is reported on the rise in manyplaces around the world.Migration in ACP Countries :Promoting Development and Enhancing Protection 5. Normative Framework A set of international legal standards formulated over acentury recognize rights of migrants, provide for theirprotection, and ground and guide formulation of labourmigration policies Implementation and monitoring of standards is essential toensure compliance and improve national law and policy International labour standards --agreed by ILO tripartiteconstituents are key to protecting migrantsMigration in ACP Countries :Promoting Development and Enhancing Protection 6. Normative Framework Standards on protection of migrants and governance of migration set in five branches of international law: International Human Rights law, notably the nine fundamental humanrights instruments. International Labour Standards, all of them, except where rarely foreign workers are exempted. Refugee and asylum law, the 1951 Convention and the 1967 Protocolon the Status of Refugees. Consular Relations, namely the Vienna Convention. International Criminal Law, namely the Protocols on Trafficking inpersons and smuggling of migrants (of the (International Convention onTransnational Organized Crime) Migration in ACP Countries : Promoting Development and Enhancing Protection 7. Normative FrameworkThree fundamental principles in international law:1. Core universal human rights apply to all migrants, regardless of legal status.2. Equality of treatment between regular migrant/immigrant workers and nationals.3. The broad array of International Labour Standards providing protection in treatment and conditions at work safety, health, maximum hours, minimum remuneration, non-discrimination, freedom of association, maternity, etc.apply to all workers. Migration in ACP Countries : Promoting Development and Enhancing Protection 8. ILO Mandate and International Labour Standards ILO Constitution, 1919 principles of social justiceprotecting all including workers when employed incountries other than their own International Labour Standards (ILS) ILO Declaration on Fundamental Principles and Rights atWork, 1998 ILO Declaration on Social Justice for a Fair Globalization,2008 Migration in ACP Countries : Promoting Development and Enhancing Protection 9. ILO Mandate and International Labour Standards International labour standards generally Fundamental standards Governance standards Standards specifically on protection of MW Migration in ACP Countries : Promoting Development and Enhancing Protection 10. ILO supervisory system and protectionof migrant workers rights Regular supervisory system CEACR Observations and direct requests 1999 General survey and other GS ILC Committee on the Application of Standards Representations and Complaints (Governing Body) Committee on Freedom of Association (GB) Migration in ACP Countries : Promoting Development and Enhancing Protection 11. ILO Mandate and International Labour Standards In principle, ILS cover all workers irrespective ofnationality and immigration status unless otherwise statedState prerogative to regulate access toterritory and labour marketMigration in ACP Countries :Promoting Development and Enhancing Protection 12. Applicable International Labour StandardsILO Fundamental Conventions (widely ratified)Freedom of Association and Protection of the Right to C87 1948 Organise Convention C98Right to Organise and Collective Bargaining Convention 1949 C29Forced Labour Convention 1930C105Abolition of Forced Labour Convention1957C138 Minimum Age Convention1973C182 Worst Forms of Child Labour Convention1999C100 Equal Remuneration Convention 1951C111 Discrimination (Employment and Occupation) Convention 1958Migration in ACP Countries :Promoting Development and Enhancing Protection 13. Applicable International Labour StandardsILO Governance standards (examples) C81 Labour Inspection Convention1947 C122Employment Policy Convention1949ILO Conventions particularly applicable to migrantworkers C19 Equality of Treatment (Accident Compensation) Convn1925 C102 Social Security (Minimum Standards) Convention 1952 C118Equality of Treatment (Social Security) Convention1962 C157Maintenance of Social Security Rights Convention1982 C181Private Employment Agencies Convention1997Migration in ACP Countries :Promoting Development and Enhancing Protection 14. Applicable International Labour StandardsILO Instruments of general application particularly relevant to migrant workers C95 Protection of Wages Convention1949C131 Minimum Wage Fixing 1970C183 Maternity Protection Convention 2000C121Employment Injury Benefits Convention1964C169 Indigenous and Tribal Peoples Convention1989R200HIV and AIDS Recommendation2010C189Domestic Workers Convention (&R201)2011Migration in ACP Countries :Promoting Development and Enhancing Protection 15. Applicable International Labour StandardsInstruments on labour migration and protection ofmigrant workers C97 Migration for Employment Convention (Revised)1949 Migrant Workers (Supplementary Provisions) C143 1975Convention R86Migration for Employment Recommendation (Revised) 1949 R151 Migrant Workers Recommendation1975 Migration in ACP Countries : Promoting Development and Enhancing Protection 16. Migration for Employment Convention(Revised), 1949 (No. 97) Historical context Facilitate the movement of surplus labour Purpose Protect migrant workers from exploitation anddiscrimination Scope Migrant workers and their families regularlyadmitted to the country of employment Categories of workers excluded Frontier workers, seafarers, members of liberalprofessions and artists entering on a short-termbasis Migration in ACP Countries : Promoting Development and Enhancing Protection 17. Convention No. 97: Structure Regulation of conditions in which labourmigration takes place General protection provisions Non-discrimination and equality of treatmentbetween migrants and nationals Wages/ working conditions Trade union rights Accommodation Social security Employment taxes Access to courtsMigration in ACP Countries :Promoting Development and Enhancing Protection 18. C 97: Cooperation Whenever necessary or desirable, conclusionof agreements to regulate migration foremployment in cases where numbers ofmigrants are sufficiently large Recommendation No. 86 (Annex): modelbilateral labour migration agreement Migration in ACP Countries : Promoting Development and Enhancing Protection 19. Migrant Workers (Supplementary Provisions)Convention, 1975 (No. 143)Historical contextAims Facilitate and regulate labour migration flows Suppress activities of organizers of clandestine movements of migrant workers Provide minimum protection to all migrant workersStructure: Flexible instrument Part I Migrations in abusive conditions (Articles 1-9) Part II Equality of opportunity and treatment (Articles 10-14)Migration in ACP Countries :Promoting Development and Enhancing Protection 20. C143 Part I: Migration in abusiveconditions Minimum standards Basic human rights of all MW Protects regular status of MW when loss ofemployment But distinguished from a right to stay Migrants in an irregular situation : Equal treatment in respect of rights arising out of pastemployment (e.g. remuneration, social security) Access to legal proceedings No costs on expulsion Possibility of regularizationMigration in ACP Countries :Promoting Development and Enhancing Protection 21. C143 Part II: National policy on equality of opportunity and treatmentEmployment and occupation (some limitations)Social security (some limitations)Trade union rightsCultural rightsIndividual and collective freedomsExcluded categories from Part II: frontier workers; artistsand members of the liberal professions entering on a short-term basis, seafarers, trainees, persons on specifictemporary duty assignments Migration in ACP Countries : Promoting Development and Enhancing Protection 22. Consultation with social partners Recommendation No. 86, Para. 4(2): Consultation on all general questionsconcerning migration for employment Convention No. 143, Art. 7: Consultation on laws and regulations andother measures designed to prevent andeliminate migration abusesMigration in ACP Countries :Promoting Development and Enhancing Protection 23. Ratifications ILO migrant workers instrumentsConvention No. 97 (1949)Convention No. 143 (1975)50 Ratifications 23 Ratifications Algeria, Burkina Faso, Cameroon, Kenya, Madagascar,Malawi, Mauritius, Nigeria, Tanzania (Zanzibar),Benin, Burkina Faso, Cameroon, Guinea, Kenya,AfricaAfrica ZambiaTogo, UgandaBelize, Bahamas, Barbados, Brazil, Cuba, Dominica, Americas and Venezuela Ecuador, Grenada, Guatemala, Guyana, Jamaica, Saint Americas and CaribbeanCaribbeanLucia, Trinidad and Tobago, Uruguay, Venezuela Hong Kong (China SAR), Kyrgyzstan, Malaysia (Sabah),Philippines, TajikistanAsia and PacificAsia and PacificNew Zealand, Philippines, Tajikistan Albania, Armenia, Belgium, Bosnia and Herzegovina,Albania, Armenia, Bosnia and Herzegovina,Cyprus, France, Germany, Israel Italy, The former Cyprus, Italy, The former Yugoslav Republic ofEurope Yugoslav Republic of Macedonia, Moldova, EuropeMacedonia, Montenegro, Norway, Portugal, San Montenegro, Netherlands, Norway, Portugal, Serbia,Marino, Serbia, Slovenia, Sweden Slovenia, Spain, United Kingdom Migration in ACP Countries : Promoting Development and Enhancing Protection 24. C 97 and C 143Key features Do not affect the prerogative of States to determineadmission for employment Relevant for both countries of destination and origin Taken together, C97 and C143 recognize that Migrant workers, including those in an irregular situation, havebasic human and labour rights Once admitted to employment, regular migrant workers shouldenjoy equal treatment with nationals The social consequences need to be addressed E.g. facilitation of family reunification (C143 and R151) The labour migration process needs to be regulated within arights-based rule of law frameworkMigration in ACP Countries :Promoting Development and Enhancing Protection 25. International Human Rights SystemInternational humanrights system UN Charter-Treaty-based based Human RightsTreaty bodies Council Special Procedures UniversalPeriodicReview (UPR) Migration in ACP Countries : Promoting Development and Enhancing Protection 26. International human rights law / system Nine core human rights treaties Important work of human rights treaty bodies Opinions on application of rights to migrant workers Landmark general comments / recommendations High Refugees Council (HRC) CESCR CERD CMW Special Procedures mandates UN Special Rapporteur on human rights of migrants Universal Periodic Review (UPR)Migration in ACP Countries :Promoting Development and Enhancing Protection 27. International Legal FrameworkInternational Human Rights instruments Universal Declaration of Human Rights (UDHR) 1948Nine core international human rights treaties International Covenant on the Elimination of Racism and ICERD1965 Discrimination ICCPR International Covenant on Civic and Political Rights 1966International Covenant on Economic, Social and Cultural ICESCR 1966RightsCommittee on the Elimination of Discrimination Against CEDWA1976Women CATConvention Against Torture1984 CRCConvention on the Rights of Children1989 International Convention on the Protection of the Rights ICRMW1990of All Migrant Workers and Members of Their Families CRPD Convention on the Rights of Persons with Disabilities 2006Migration in ACP Countries :Promoting Development and Enhancing Protection 28. International Legal Framework Non-discrimination and key rights Universal principle of non-discrimination Nationals and non-nationals alike with few exceptions Some rights of particular relevance to MW andtheir families: Right to leave/enter/return to ones own country -ICCPR Rights to freedom of assembly and association- ICCPRand ICESCR Rights to equal work and employment conditions-ICESCR Rights to education and health ICESCR Right to family life ICCPR and ICESCR Migration in ACP Countries : Promoting Development and Enhancing Protection 29. International Legal Framework Human rights treaty bodies Monitor application of human rights treaties inStates parties Adopt General Comments / Recommendationson interpretation of instruments Some bodies hear individual (and inter-state)complaints Migration in ACP Countries : Promoting Development and Enhancing Protection 30. 1990 Convention on Migrant Workers Key features Comprehensive instrument Does not affect right of State Party to establish criteria governingadmission of MW and members of their families (Part VII, Art. 79) Protects basic rights of all MW and their families on the basis ofequality with nationals (Part III) Grants regular migrants additional rights on the basis of equalitywith nationals (Part IV) States must cooperate in promoting sound equitable, humane andlawful migration conditions (Part VI) Monitoring mechanism Committee on Migrant Workers (Part VII) Migration in ACP Countries : Promoting Development and Enhancing Protection 31. UN Convention on Migrant Workers, 1990 Application Committee on Migrant Workers 16 sessions since March 2004 States parties to submit initial (after 1 year) and periodicreports (after 5 years) Concluding Observations (22 so far) Optional individual and inter-State complaint mechanisms Individual complaints (art 77) not yet in force General Comments General Comment No. 1 on Migrant Domestic Workers (February 2011) Second General Comment on the rights of migrant workers and their families in an irregular situation in processhttp://www2.ohchr.org/english/bodies/cmw/ Migration in ACP Countries : Promoting Development and Enhancing Protection 32. UN Convention on Migrant Workers, 1990RatificationsRatifications Signatories 43 State Parties 14 State PartiesAlgeria, Burkina Faso, Cape Verde,Egypt, Ghana, Guinea, Lesotho, Libya,Benin, Cameroon, Comoros, Congo,Africa Mali, Mauritania, Morocco, Niger, Africa Gabon, Guinea-Bissau, Liberia, Sao Nigeria, Rwanda, Senegal, Seychelles, Tome and Principe, Sierra Leone, TogoUganda Argentina, Belize, Bolivia, Chile, Colombia, Ecuador, El Salvador,Americas and Americas and Guatemala, Guyana, Honduras, - CaribbeanCaribbean Jamaica, Mexico, Nicaragua, Paraguay,Peru, St. Vincent and the Grenadines, Uruguay Bangladesh, Kyrgyzstan, Indonesia,Asia and PacificCambodia, IndonesiaAsia and PacificPhilippines, Sri Lanka, Tajikistan, Timor-Leste Europe Montenegro, Serbia Albania, Azerbaijan, Bosnia andEuropeHerzegovina, Turkey Middle East -Middle East SyriaMigration in ACP Countries :Promoting Development and Enhancing Protection 33. Regional frameworks:Binding and non-binding instruments AfricaAfrican Charter on Human and Peoples Rights 1981Regional integration regimes e.g. Economic Community Of West African States (ECOWAS), SouthAfricanDevelopment Community (SADC) AU Migration Policy Framework for Africa 2006 Americas American Convention on Human Rights 1969 Middle East Arab Charter on Human Rights 2004 Asia ASEAN - Association of Southeast Asian Nations Declaration on the Protection and Promotion of the Rights of Migrant Workers, 2007 Europe Council of Europe instruments - European Convention on Human Rights (ECHR), EuropeanSecurities Committee (ESC), European Convention on the Legal Status of Migrant Workers(ECLSMW) Regional integration - European UnionFree movement of EU workers / citizensEU law and policy on asylum and (labour) migration from third countriesMigration in ACP Countries :Promoting Development and Enhancing Protection 34. The Case for a Multilateral Framework on Labour Migration* Need for new tools and clear rules for governance oflabour migration in light of expansion and increasingcomplexity of international migration Some countries reluctant to ratify legally bindingConventions Risk of lowering existing standards New developments Greater role of private sector and private employment services Feminization of labour migration Growth of irregular migration Proliferation of temporary labour migration schemes Emphasis on relationship between migration and development Migration in ACP Countries : Promoting Development and Enhancing Protection 35. ILO Multilateral Framework onLabour Migration (2006) Identified in Plan of Action for migrant workersadopted by ILC, June 2004 Objective in PoA: develop a non-binding multilateralframework for a rights-based approach to labourmigration, which takes account of labour marketneeds Framework drawn up by Tripartite Meeting of Expertsand approved by ILO GB in March 2006 international principles and guidelines illustrated by 132 bestpractices in 9 areas http://www.ilo.org/public/english/protection/migrant/download/multilat_fwk_en.pdfMigration in ACP Countries :Promoting Development and Enhancing Protection 36. ILO Multilateral Framework on Labour MigrationFollow-up Framework translated, widely circulated and publicized Efforts mobilized to support PoA and Framework The Framework has been used as guide for developing nationallabour migration policies in Bangladesh, Kenya, Nepal, Nigeria, SriLanka, Zimbabwe and other countries Principles and guidelines incorporated into ILO DWCPs and TCprojects Work with trade unions, employers and civil society to promoteFramework implementation The MLF offers a comprehensive, relevant and useful guide forelaboration of law and policy in PNGMigration in ACP Countries :Promoting Development and Enhancing Protection 37. Conclusions Greater awareness of application of human rightsto all migrant workers and their families Migrants rights are human rights Enhanced work of Human rights treaty bodies and the ILOsupervisory bodies UN Special Rapporteur Focus of Trade union concern CSO and NGO action Migrant organizing Steady progress in acceptance of internationalstandards on Migrant Workers Importance of regional legal frameworks and caselaw Migration in ACP Countries : Promoting Development and Enhancing Protection