Migrant workers and the ILO: a standards-based approach

International instruments relevant to Migrant Workers

ILO Conventions and Recommendations

ILO Declaration on Fundamental Principles and Rights and its Follow-up

Other: MWC, CCPR, CESCR, CERD, CEDAW

ILO Constitution

Preamble to original Constitution: « protection of the interests of workers when employed in countries other than their own”

Declaration of Philadelphia:

The solemn obligation … to further 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;

ILO Declaration on Fundamental Rights and Principles at work, 1998

Reaffirms the constitutional value and validity of ILO fundamental principles and rights in the context of the global economyEstablishes an official dialogue on FPR in abscence of ratificationMobilizes recourcesPositive promotion, not negative trade sanctionsSpecial attention to migrant workers

Other ILO standards on migrant workers

Migration for Employment Convention (revised), 1949 (No. 97) (47 ratifications)

Migration for Employment Rec. (revised),1949 (No. 86)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No.143) (23 ratifications)

Migrant Workers Rec., 1975 (No. 151)

UN Convention – (37 ratifications, 28 signatories)

Unemployment Convention, 1919 (No. 1): member States “shall, upon terms being agreed between the Members concerned, make arrangements whereby workers belonging to one Member and working in the territory of another shall be admitted to the same rates of benefit (of established systems of insurance against unemployment) … as those which obtain for the workers belonging to the latter”Equality of Treatment (Social Security) Convention, 1962 (No.118) Maintenance of Social Security Rights Convention, 1982 (No. 157)Other Conventions (fundamental rights, private employment agencies, protection of wages,..)

Objectives of ILO standards

to establish the right to equality of treatment between nationals and non-nationals in the field of social security

to institute an international system for the maintenance of acquired rights and rights in the course of acquisition for workers who move from one country to another.

Scope & Definitions

Migrant worker: “a person who migrates from one country to another, with a view of being employed otherwise than on his [or her] own account” – UN: The term "migrant worker" refers to 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.

Family: Spouse of the worker, his or her children and parents

International migration: cover only those migrants that cross international borders

Spontaneous and organized migration: Covers migrant workers privately or public recruited and those who migrate on their own to seek employment

Exceptions: frontier workers, short-term entrance of artists and liberal professions, seafarers (+ additional exceptions C. 143)

UN Convention coverage

Article 1

• 1. The present Convention is applicable, except as otherwise provided hereafter, to all migrant workers and members of their families without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.

• 2. The present Convention shall apply during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence.

Convention No. 97

Historical context: concern to faciliate the movement of « surplus labour »

Aim: protection of workers from discrimination and exploitation while employed in countries other than their own

Focus on migrant workers in a regular situation

Convention No. 97: structureRegulation of conditions in which migration for employment must occur (e.g., exchange of information, cooperation between government services)

General protection provisions, e.g. Fight misleading propaganda Facilitate departure, journey and reception Maintenance of appropriate medical attention Right of migrants to transfer earnings and savings Prohibits expulsion of migrant workers admitted on a

permanent basis in the event of incapacity of work

Convention No. 97: structure

Equality of treatment between migrant workers and nationals as regards laws and administrative practices onLiving and working conditionsSocial security (but special provisions may be

made)Employment taxes Access to justice

Convention No.143

1975: shift towards controlling migration flows and eliminating irregular migration and suppressing the activities of organizers of clandestine movements of migrantsTwo main parts Part I (Articles 1-9) deals with the problems arising out of

clandestine migration and illegal employment of migrants and provides equality of treatment between irregular and regular migrants with respect to certain rights

Part II (Articles 10-14) substantially widens the scope of equality between migrant workers in an regular situation and nationals, in particular to extending it to equality of opportunity

Part I: Migration in abusive conditions

Respect basic human rights of all migrant workers, whether regular or irregular

To determine and suppress clandestine movement and the illegal employment of migrant workers

Punish the organizers of such migration and procurers of workers in movements, assistance and employers

Protective measures for migrant workers who have lost employment (against irregular status) or who are in an irregular situation

Convention No. 143 – Part II: equality of opportunity and treatment

Access to employment and occupation

Social security (some limitations)

Cultural rights and right to organize Individual and collective freedoms Limited restrictions with respect to

choice of employment Family reunification

Conventions Nos. 97 and 143 do not affect the right of each Member State to refuse entrance or stay and to determine the methods of entry and stay. They recall that:

Even in a regular situation, migrant workers have basic human rights

Once admitted to the territory for employment, they should be treated on a equal basis with nationals

Deal mainly with migration for employment but certain provisions of Recs. 86 and 151 take into account the social consequences of migration

General Survey on Migrant Workers, 1999

Findings and conclusionsDeclining role of state and increase in private recruitment (see C181)Feminization of migrationIncrease in temporary migrationIncrease in irregular migrationTensions on equality of treatment and opportunityControl of migration: certain measures to suppress irregular migration violate human rightsSanctions: in practice taken mostly against irregular migrants rather than organizers and employers

Conference discussion in 2004

UN Convention on migrant workers

Basic idea of non-discrimination and identifies human rights of all migrantsMore detailed provisions and broad protection many provisions similar to those of ILO ConventionsSome rights provided under C.143 not specified in UN ConventionIs not based on tripartismDifferent supervisory mechanism

Still no coherent international regulation

Governments of immigration countries in particular have continued to struggle to find appropriate responses, and the end of the 20th century and beginning of the 21st century have given rise to an upsurge in initiatives on questions of international migration. For example,

in 1999 a mandate was created for a Special Rapporteur on the Human Rights of Migrants by the UN Commission of Human Rights (Resolution 1999/44).

In June 2001 Japan sponsored the establishment of an Independent Global Commission on Human Security. In the same month, the Swiss Federal Department of Justice and Police launched the so-called Berne Initiative, which aims at achieving better management of migration at regional and global level through enhanced inter-state cooperation.

In December 2003, UN Secretary-General Kofi Annan convened a Global Commission on International Migration. Also in December 2003 the General Assembly decided to devote a high-level dialogue to international migration and development during its 61st session in 2006.

ILO established the World Commission on the Social Dimension of Globalization, in 2002. Its 2004 report called for the initiation of a “preparatory process towards a more general institutional framework for the movement of people across national borders. This means a transparent and uniform system, based on rules rather than discretion, for those who wish to move across borders. The ultimate objective would be to create a multilateral framework for immigration laws and consular practices, to be negotiated by governments, that would govern cross-border movements of people. This would be similar to multilateral frameworks that already exist, or are currently under discussion, concerning the cross-border movement of goods, services, technology, investment and information”.

Result of 2004 Conference

Opposition by employers and some governments

A plan of action that included the “development of a non-binding multilateral framework for a rights-based approach to labour migration which takes account of labour market needs, proposing guidelines and principles for policies based on best practices and international standards”.

A Meeting of Experts was convened in 2005 to flesh out the non-binding principles and guidelines. The Experts drafted an ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration; and the GB decided in March 2006 that this Framework should be published and disseminated. The proposal has gone no further.