SUMMARY REPORT
Migration and Development Series 2010
Panel on the occasion of the International Migrants Day
In observance of the 20th anniversary of the adoption of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
Organized jointly with IOM, UNFPA and the MacArthur Foundation and with the collaboration of the NGO Committee on Migrant Workers
17 December 2010
United Nations Headquarters, New York
BACKGROUND
On 18 December 1990, the United Nations General Assembly adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). The treaty reinforces the international legal framework concerning human rights such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).
It is complemented by two ILO Conventions on migration for employment (C-97 and C-143) that provide specific standards regarding migrant worker employment and occupation.
Further, it specifically recognized the growing relevance of the migration phenomenon and the human rights protections to be afforded by governments irrespective of migration status, and the obligations/duties of migrants and their families.
Despite the attention granted to migration in recent years, through the UN High-Level Dialogue on International Migration and Development, and the Global Fora on Migration and Development, the international effort to enlarge the ratifying base of the Convention has proceeded slowly. Today, the Convention remains the least ratified treaty among all the major human rights treaties with 44 ratifying member states.
The panel was also organized on the occasion of the 11th International Migrants Day. On 4 December 2000, The United Nations proclaimed 18 December as International Migrants Day in recognition of the increasing number of migrants in the world. This day represents an opportunity for the international community to disseminate information on the human rights and fundamental freedoms of migrants and to share experiences and programmes to foster their protection.
OBJECTIVE
The panel in observance of the 20th anniversary of the adoption of ICRMW was designed to assess the impact of the treaty on the lives of millions of migrants and their families worldwide and ratifying States. The objective of the panel was to discuss the achievements of the Convention, the challenges, the protection gaps still existing for specific categories of migrants such as irregular migrants and temporary or seasonal workers and its prospects specifically in light of the ongoing international ratification campaign.
SUMMARY OF DISCUSSIONS
The discussions highlighted the significance on the Convention for migrant workers and their families as essential instruments not only for the protection of their basic rights but also as leading vectors for reinforcing the positive impact of migration to economies of origin and destination countries.
H.E. Ambassador Claude Heller, Permanent Representative of Mexico to the United Nations, presented an overview of the Convention and its principles and reviewed the international diplomatic process that led to the drafting and adoption of the Treaty. Ambassador Heller emphasised the role played by Mexico and Morocco as main driving forces behind the formulation of a UN Convention. Their actions –stressed Ambassador Heller- led to the adoption of the General Assembly Resolution 34/172 of 1979 which produced the Open-ended Working Group, chaired by Mexico and Morocco, which over the course of the subsequent 10 years drafted the Convention. The objective of having a UN Convention on the matter, to complement the previous ILO treaties, was also essential for allowing the possibility for States to make reservations. The granting of this opportunity would have helped member States to address some of their concerns and ultimately to become part of it. Despite the difficulty in accommodating the interests and concerns of countries, about half of UN member States participated in this drafting of the ICRMW. Further, Ambassador Heller underscored one of the peculiarities of the Convention which is the central role given to the humanitarian aspects of migration strongly intertwined with its economic aspects for both countries of origin and destination.
H.E. Ambassador Libran N. Cabactulan, Permanent Representative of the Philippines to the United Nations, discussed the significance of the Convention for ratifying member States and the implications and challenges brought by its principles to national legal frameworks and policies. Ambassador Cabactulan highlighted some of responsibilities implicit in the adoption of the Convention namely:
· Ensure non-discrimination with respect to rights. The art. 7 oblige ratifying States to respect the rights provided in the Convention without distinction of any kind including national origin and economic status;
· Ensure basic human rights for migrant workers and their families encompassing the right to leave any state (Part III, art. 8), including their country of origin with no restrictions except those necessary to protect national security, public order, public health or morals and the rights and freedom of others; and the right to receive any medical care (Part III, art. 28) that is urgently required for the preservation of their lives including for those in irregular status of stay or employment;
· Ensure additional rights for documented migrants and their families, including access to educational institutions, vocational guidance and training and private and social housing schemes (Part IV, Art. 43);
· Ensure rights of particular categories of migrant workers and their families; most of the above mentioned rights are extended as well to frontier, seasonal, itinerant and project-tied workers (Part V, art. 57-63);
· Promote sound, equitable, human and lawful conditions in connection with international migration (Part VI, art. 64-71);
· Submit regular reports to the Committee on Migrant Workers (Part VII).
Ambassador Cabactulan explored the reasons that prevent other States from accepting the principles enumerated in the Convention. In detail:
· The perception of rigid and too demanding obligations contained in the Convention;
· The perception that certain principles of the ICRMW may foster irregular immigration;
· Most of the principles included in the Convention are already addressed in other human rights treaties;
· Almost all countries are points of origin, transit and destination;
· Difficulties in unifying national policies in accordance with the principles established in the Convention;
· Bilateral/regional agreements are already in place in countries were the migration phenomenon is consistent;
· Many countries in which the migration phenomenon has a strong impact are States that have not ratified the Convention.
The latter point was highlighted from both Ambassador Cabactulan and Ambassador Heller as fundamental for the success of the efforts of the international community to increase the number of ratifying States (Only 44 countries have so far ratified the ICRMW). The non-accession to the Treaty of countries that have a strong interest in addressing and cooperating on migration has worked as a disincentive for all the other counterparts.
Ms. Paola Pace, Acting Head for the International Migration Law Unit of the IOM, presented an overview of the international legal framework addressing the protection of human rights and stressed certain obligations that ratifying States of the Convention must fulfil. In particular, i) to promote sound, equitable and human migration conditions; ii) to collaborate with other member States to prevent and eliminate irregular migration and; iii) to punish traffickers and all those who exploit migrant workers.
Ms. Pace emphasized how the effective protection of migrant workers and members of their families should start before the Convention and must be extended even beyond the Convention. The protection should start before because the rights enshrined in the ICRMW are mostly the same rights recognized to all human beings by other universal instruments such as the UDHR, the ICCPR and the ICESCR. Consequently, States have already accepted a large number of the obligations set out in the Convention through the ratification of these other instruments. Further, the rights granted by the Convention go beyond it taking into account that some of the rights protected by other international instruments have an even broader scope than the ICRMW. This is particularly true with respect to the following rights:
· Trade union rights (defined for instance in article 8 of the ICESCR)
· Right to adequate housing (article 11 of the ICESCR)
· Right to health (article 12 of the ICESCR)
In this respect -continued Ms. Pace- article 81 of the ICRMW clearly states that the Convention does not affect any other, more favourable, rights or freedoms granted to migrant workers and their families established by any other treaty in force for the State Party concerned.
To conclude, Ms. Pace underscored the cooperative character of the Convention and the shared effort requested among member States for an efficient implementation of its principles. Interstate cooperation is crucial both to enhance the sustainable development of countries of origin and of employment of migrant workers, and to enable states to ensure the respect of the rights encompassed in the Convention. Interstate cooperation is particularly essential in the following areas:
· Exchange of information between the competent authorities of States Parties;
· Cooperation in the adoption of measures regarding the orderly return of migrant workers to the State of origin;
· Cooperation in promoting adequate economic conditions for the resettlement of regular migrant workers and facilitating their social and cultural reintegration in their state of origin;
· Collaboration among State Parties to prevent illegal movements of migrant workers reducing the risk of their exploitation by criminal organizations.
Mr. Patrick Taran, Senior Adviser of the ILO for its International Migration Programme, reminded how migration is both a direct result and vector of development in what is defined today as globalized capitalistic economic system. According to ILO estimates, today 105 million migrants out of a total of 214 million are economically active; in other words migration is essentially labour migration. Unfortunately, while migration is functional to make modern economies competitive by adjusting skills, age and sectoral composition of national and regional labour markets it is also about abuse and exploitation of basic rights. Mr. Taran underscored how the development potentials of migration are often linked to the financial contributions that migrants make to origin countries. When basic rights at work are abused these potentials are ineludibly reduced.
This is the cause - noted Mr. Taran- of a highly deregulated labour market. Deregulation, defined as the reduction of labour standards as well as market and financial controls, occurs in the context of overshadowing competitive pressures on wages and condition of work. Goods and services produced in low wage countries are in direct competition with goods and services produced in high wage countries. As a result, these competitive pressures provide an incentive on one hand for seeking and hiring labour that in virtue of its precarious conditions, as in the case of migrants, are prone to accept lower labour standards and on other hand to foster the flow of undocumented migrants.
Mr. Taran underscored how history shows that without the normative context represented by the treaties addressing the protection of fundamental human rights, economic incentives and competitive pressures may prevail over decent work and implementation of human rights for societies. Without these standards encompassed in national law, without the sanction of its transgressions and without the governance of migration under the rule of law, the migration/development nexus will not be disclosed.
John Bingham, Head of Policy for the International Catholic Migration Commission (ICMC) and representative of the NGO Committee on Migration, analysed the protection gaps to which certain categories of migrants are more exposed. For instance, domestic workers, which represent up to 10 per cent of the work force in some countries, are particularly vulnerable for the entire migration cycle. This may apply before departure when agencies may charge high fees to domestic migrant workers and often do not provide adequate information about their rights. Forms of exploitation may also appear upon arrival when domestic workers are often left with high debt for their migration and without legal papers or when they are forced to sign contracts for less pay than what was agreed upon before departure. Further, during employment, domestic migrant workers may face several forms of exploitation such as restrictions on movement outside the house in which they are providing services, excessive and often undefined working hours and/or lack of social security protection.
Mr. Bingham noted that if the Convention extends its principles to all migrant workers, national legal frameworks often do not recognize domestic work as “work”. Special definition often applied to domestic workers de facto exclude them from the protection guaranteed by national labour laws; this is the case when employers are not considered as such since the work performed by their domestic workers is for a private individual.
In light of these vulnerabilities, Mr. Bingham underscored the significance of continuing in promoting the principles of the Convention and the international campaign for its ratification as fundamental means to provide equal treatment among workers and fulfil the development expectations linked directly to migration.
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