MIGRANTS COMMITTEE HOLDS ROUND TABLE
DISCUSSION ON FIFTH ANNIVERSARY OF
ENTRY INTO FORCE OF CONVENTION
ON RIGHTS OF MIGRANT WORKERS
18 April 2008
Committee on Rights of Migrant Workers MORNING
18 April 2008
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families this morning celebrated the fifth anniversary of the entry into force of the International Convention on the Protection of All Migrant Workers and Members of Their Families by holding a round-table discussion with the International Labour Organization, the International Organization for Migration, academia, non-governmental organizations and States on the importance of human rights in the context of today’s migration debate.
Abdelhamid El Jamri, Committee Chairperson, in introductory remarks, noted that, since the entry into force of the Convention, there had been a great deal of debate on the adherence of States to the treaty. The upshot was that there was no legal basis for not ratifying the Convention. Decisions to ratify the Convention or not stemmed wholly and completely from political will. What was needed in the migration context were comprehensive, long-term policies to regulate migration flows, and the Convention was the best placed to be able to do that.
Speaking on Panel One, which addressed the legal and conceptual framework of the international migrant workers regime, a representative from the International Labour Organization said that the fundamental challenge today was the tension between the imperative of equality of treatment and non-discrimination versus the enormous competitive pressures to exploit vulnerable labour. New proposals relativizing human and labour rights were emerging, arguing for an explicit trade-off of lowered application of rights and unequal treatment for non-national workers in exchange for increased opportunities for employment in potential host countries. In that context, regulation of labour migration, let alone labour markets, could not be left primarily to market mechanisms. A representative from the University of Lausanne identified the need for the rethinking of the place of human workers on this planet and an egalitarian status for all workers. A representative of the International Organization for Migration identified three challenges in terms of safeguarding the human rights of migrants today – the increasingly short-term nature of labour migration; the issue of irregular migration; and how the human rights of migrant workers and their families were being addressed in policy forums and processes devoted to migration – and demonstrated the Convention's importance in that connection.
Panel Two, which looked at the practical issues surrounding the implementation of the Convention, heard from two States parties, the Philippines and Ecuador, as well as from the United Nations Educational, Scientific and Cultural Organization (UNESCO) and an international advocacy group on the human rights of migrants, December 18. The Philippines said its own Migrant Workers and Overseas Filipinos Act of 1995 followed a similar human rights approach to that taken in the Convention. Ecuador stressed that there were no illegal individuals, only illegal actions. Ecuador's National Plan for Human Development for Migration, 2007-2010, was based, among others, on the respect for the human rights of migrants and their families, to help strengthen and encourage the ties between migrants and their home countries, and to promote intercultural exchanges. A UNESCO representative analysed the reasons behind the apparent reluctance of States to ratify the Convention, including the essential role played by migrants in allowing the economic competitivity of many countries; a lack of means by States to combat the conditions in which migrants worked; and the fact that the issue of migrants was complex and dealing with that issue covered a wide range of areas, including education, labour law, judicial procedures, banking, and international cooperation. States needed to understand that it was in their interest to control such flows, as one of the incentives to ratifying the Convention: migration often occurred in a legal vacuum, and that was precisely why the Convention was so important. A representative of December 18 outlined past efforts to promote the Convention and set out a number of issues ahead, in particular with regard to ratification by European Union Member States.
The Panels were followed by discussions between representatives of States and non-governmental organizations and Panel members.
This afternoon, at 3 p.m., the Committee will hold a debate on the Global Forum on Migration and Development in the context of promotion of the Convention.
ABDELHAMID EL JAMRI, Committee Chairperson, in introductory remarks, said they were celebrating the fifth anniversary of the entry into force of the Convention on migrant workers, which began in July 2004. The Committee – the most recent treaty body in the area of human rights – had been working for four years now, setting up its work procedures and defining its own internal culture. They were now laying down roots for that culture both within the United Nations and throughout the world. The Committee was also working within the context of United Nations reform, was working in relation with other treaty bodies, and was also part of the Durban Review Process, as well as the Global Forum on Migration, which would be held next in Manila in October 2008. The Committee had also collaborated with the International Labour Organization on developing migration guidelines for the Mediterranean region. Since its inception, the Committee had already considered four State party reports, and two more were being considered at this session. Five further state party reports had been received for consideration. The Convention had 37 ratifications to date, which was not very many, but the entry into force of the Convention was creating an atmosphere that promoted the interests of migrant workers and allowed for other States to sign.
Since the entry into force of the Convention, there had been a great deal of debate on the adherence of States to the Convention. The upshot was that there was no legal basis for not ratifying the Convention. Decisions to ratify the Convention or not stemmed wholly and completely from political will. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was the most complete and comprehensive international instrument on migrants' rights. Many countries had raised questions on certain articles, for example about irregular migrants. However, the rights of those migrants were based in human rights. There was a growing recognition of the role that migrant workers played in development, as creators of wealth, regulators of the labour market in their own countries, as a way to control demographic growth, as well as the source of future nationals of countries, for example in France where the children and grandchildren of Algerian workers had become nationals. However, despite the benefits they brought, the rights of migrants were not always recognized. Other States provided migrants with rights, but still had not ratified the Convention. What were needed now were comprehensive, long-term policies to regulate migration flows. The Convention was the best placed to be able to do that, as the most comprehensive international instrument on migrants, Mr. El Jamri concluded.
PRASAD KARIYAWASAM, Chairperson for the Round Table Discussions, said that, on this fifth anniversary of the entry into force of the Convention, they had to concentrate on the work that still remained to be done: that is, the greater, broad-based of participation in the Convention by States parties. The first part of the panel would be a presentation of a conceptual and legal framework of the migrant workers regime; the second would deal more with the more practical and concrete use of the regime, including promotion of the Convention.
Statements on Panel One – Conceptual and Legal Framework
PATRICK TARAN, of the International Labour Organization (ILO), speaking on the "Imperative for a rights-based approach to migration in the context of globalization", began by highlighting that, today, some 200 million people lived outside their countries of birth or citizenship. That would be the fifth most populous country in the world if those people were together in the territory of one State. ILO estimated that 95 million of those persons were economically active, engaged in the world of work. In most Western European countries, the foreign born proportion of the work force exceeded or was approaching 10 per cent. That proportion was also substantial and growing in numerous countries in Africa, Asia and the Americas, rising to as much as 60 to 80 per cent in certain Arab Gulf States. What they were talking about was the fundamental redefinition of countries. It was about the future of countries around the world. Today, immigration had emerged as one of the key components to ensure a reasonably stable future and general welfare. While it was certainly not the only factor, it was the only variable with significant potential for adjustment at present. Migrant labour was now a key factor or production and services. But the big difference with other factors of production was that migrant workers were human beings. They required protection and regulation of their treatment and conditions of work.
Mr. Taran identified the fundamental challenge today as the tension between the imperative of equality of treatment and non-discrimination versus the enormous competitive pressures to exploit vulnerable labour. The reality of globalization was increasing pressures especially on developed economies to lower labour costs and social protection in order not only to maintain competitivity, but simply to retain economic activity itself. The tension between high-skilled and well paid work and cheap flexible labour was an increasingly generalized feature of Western societies. Migrant labour in both developed and developing countries largely filled "three-D" jobs: dirty, dangerous and degrading. Moreover, today, there appeared to be a pronounced shift regarding national versus foreign identities, reinforcing discrimination and exploitation on an increasingly polarized basis. Foreignness became the new, justifiable characterization of demarcation for relegation to the roles of flexible, cheap and marginal labour. New proposals relativizing human and labour rights were emerging specifically in the arena of international migration, arguing for an explicit trade-off of lowered application of rights and unequal treatment for non-national workers in exchange for increased opportunities for employment in potential host countries; rights were commodified as negotiable bundles that could be traded, sold or renounced. In that context, regulation of labour migration, let alone labour markets, could not be left primarily to market mechanisms. Core universal human rights applied to all migrants, regardless of status. That was established implicitly and unrestrictedly in the ILO Convention 143 on Migration for Employment and later delineated explicitly in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
MARIE-CLAIRE CALOZ-TSCHOPP, of the University of Lausanne, speaking on "The importance of the Convention in migrant protection, employment and productivity", asked why countries, employers and trade unions were so resistant to the implementation of the Migrant Workers Convention? They had to look into that. The twentieth century had given birth to a surge in capitalism and attendant exploitation of workers. It was clear that in the context of today's globalization the meaning of work had changed, and trends in migration were also changing.
What was the margin of security in the private sector, taking into account competition, and nationalization of services, and who controlled the new areas of privatisation, Ms. Caloz-Tschopp asked? What was the role of the State in managing workers, and how were population movements managed? How could they understand the change of workers to service providers, that is, the transformation from human beings to things? It seemed that workers themselves were disappearing, to be replaced by "service providers". One of the major problems with the capitalist system was the need for constant expansion and the finite nature of resources and indeed workers themselves, who were mortal. There was a need for the rethinking of the place of human workers on this planet and for an egalitarian status for all workers. There was also an absence of a framework for the rethinking of the place of workers in this move towards the provision of services – whether it be by international organizations, States or non-governmental organizations. If they were to rethink that place of workers, they needed to distance themselves from the belligerent capitalist approach and further policies from a new viewpoint.
RYSZARD CHOLEWINSKI, of the International Organization for Migration (IOM), speaking on "The relevance of the Convention in light of today’s migration challenges", identified three challenges in terms of safeguarding the human rights of migrants today to which the Convention was particularly relevant. The first challenge related to the increasingly short-term nature of labour migration, which was also a response to the expansion of more flexible employment in certain sectors of economies and the resulting inherent precariousness of that work. It was a common feature of their globalized world that those were jobs which were by and large low or semi-skilled in nature and increasingly performed by migrants. Coupled to that fact were the calls by policymakers to promote temporary labour migration, including the establishment of more temporary worker programmes, largely on a bilateral basis. Did the Convention provide an adequate response to these temporary workers? It should be underlined that the Convention allowed for few distinctions between temporary, long-term or permanent migrant workers. It did define some exceptions, such as seasonal workers or project-tied workers, but the overall thrust of the Convention was to provide temporary migrant workers with essentially the same treatment as that afforded to national workers. Importantly, the Convention did not distinguish between low-skilled, semi-skilled and highly skilled workers. Migrant workers were treated as human beings as workers and not in accordance with the skills they possessed or the level of salary they could be expected to earn, in contrast to current trends in national migration policies, which sought to entrench differential treatment in terms of access to social rights and secure residence status between highly skilled migrants and less-skilled or semi-skilled migrants. The Migrant Workers Convention could not be more relevant in this area, and indeed served as an important bulwark against the erosion of standards, he concluded.
The second challenge was connected to irregular migration, Mr. Cholewinski said. While causes of irregular migration were numerous, it had been strongly argued that control measures alone were insufficient to tackle that phenomenon, and that a comprehensive approach was required, including the need to adopt a package of "constructive" measures. As migrants with irregular status were at greatest risk for exploitation and were more likely to be subject to human rights and labour rights violations, as well as victimization and marginalization in host societies, the explicit protection granted by the Convention to that group was an important reminder that fundamental rights were non-negotiable in spite of an individual's immigration status. However, in this context, it could be contended that the Convention did not devote enough attention to the specific attention of migrant women working in certain sectors of the economy, especially in domestic employment. The third challenge was how the human rights of migrant workers and their families were being addressed in policy forums and processes devoted to migration and the role of the Convention vis-à-vis such processes. Here, it was noted that the human rights of migrants and their families were being increasingly highlighted as an important issue. A good example of that was the heightened sensitivity to human rights in such processes as the Global Forum on Migration and Development.
Discussion on Panel One
Liechtenstein asked about the interpretation of the application of the Convention in practice, and the Committee's role therein; in particular, did they foresee the formulation of any General Comments to clarify areas of the Convention?
Mexico suggested the launching of a study or campaign by the Office of the United Nations High Commissioner for Human Rights that would increase the visibility of the benefits of irregular migration, in particular for the host countries. They also asked if IOM was contemplating an event at the Global Forum on Migration and Development in Manila on the Migrants Convention and its provisions.
Sri Lanka emphasized the need to protect the human rights of all migrants, regular or irregular, and in that context underscored the need to promote all international human rights law. In Sri Lanka's view, the concepts that should be used in promoting the ratification of the Convention included that the Convention was not an instrument for a more liberal migrant policy, it merely recognized the human rights of all migrants; that respect for migrants rights actually contributed to economic and social development in both States of origin and States of destination; and that the rights of migrants could not be selectively applied, but that all human rights of migrants were indivisible and already protected under international human rights law.
In some brief answers, Committee Chairperson El Jamri said the Committee stood ready to address questions of interpretation with State parties, in particular in the context of regular meetings of State parties to the Convention. The representative of IOM said IOM did, indeed, undertake a number of measures to promote the Convention and its provisions, and elaborated on some of those. The ILO representative said ILO was preparing a major book to be issued later this year on global migration, with a chapter on the contribution of migrants, regular and irregular, to their host countries. The book would emphasize the fact that rights were accorded to workers not on the basis of their skills or other status, but as human rights.
Statements on Panel Two – Practical Implementation of Regime
DENIS Y. LEPATAN, Deputy Permanent Representative of the Philippines to the United Nations Office at Geneva, speaking on the "Usefulness of Convention as a tool for migration policy, States parties’ perspective", said the Philippines own Migrant Workers and Overseas Filipinos Act of 1995 followed a similar human rights approach to that taken in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The Convention was also a potent tool for migration policies, particularly for the Philippines, which was among the biggest sources of global labour. Based on Philippine experience, effective management of migration flows contributed directly and immensely to the promotion and protection of human rights of migrant workers by making workers less susceptible to exploitation and illegal activities. The Convention set out in its Article 1 that it applied "during the entire migration process ... preparation for migration, departure, transit, stay ... as well as return", and that circular flow of migration served as the central guiding principle of Philippine migration policy. In line with that policy, the Philippines had put in place programmes to prepare, support, and protect its overseas workers and their families at every step of the migration process. The Migrant Workers and Overseas Filipinos Act of 1995 had made it obligatory on government agencies to "issue travel advisories or disseminate information on labour and employment conditions, migration realities and other facts ... which will adequately prepare individuals in making informed and intelligent decisions about overseas employment". More proactively, and with a view towards ensuring a favourable environment for migrant workers, the law provided that workers might be deployed only in countries where the rights of Filipino migrant workers were protected, and empowered the Government to impose a ban on the deployment of migrant workers to countries where conditions were not favourable.
With respect to the promotion and protection of rights of migrant workers in the country of destination, the Philippines had adopted a country-team approach where the Department of Foreign Affairs worked in tandem with various government agencies, to provide assistance to migrant workers in distress. The Department also had a legal assistance fund to help Filipinos in conflict with the law, and other government agencies provided funds to assist migrant workers in other emergency situations, such as epidemics or man-made disasters. Philippine migration policy also covered reintegration of returning workers, and under the Migrant Workers Act, protective and welfare mechanisms were extended to overseas workers as well as to members of their families.
CARLOS SANTOS, Chargé d'Affaires a.i. of the Permanent Mission of Ecuador to the United Nations Office at Geneva, said that for Ecuador there were no illegal individuals, only illegal actions. Ecuador was a host, receptor and transit country for migrants, and thus the Convention was of particular importance in that country. The National Secretariat for Migration had been created to define, manage and execute Ecuador's migration policies and to establish migration centres. To that end, the Secretariat had elaborated a National Plan for Human Development for Migration, 2007-2010, based, among others, on the respect for the human rights of migrants and their families, to help strengthen and encourage the ties between migrants and their home countries, and to promote intercultural exchanges.
About 10 per cent of the work age population of Ecuador was living abroad. A number of programmes and initiatives had been developed to address the situation of Ecuadorians abroad, including a plan to help Ecuadorian migrants in extreme positions of vulnerability, a "No to Abuse" plan, and a comprehensive plan for return of migrants. It was also developing policies to deal with the issue of irregular migration, including training programmes for migrant workers, and regularization campaigns. Ecuador was also effecting and improving its procedures for the return of migrant workers, in particular for those coming from Colombia.
ANTOINE PECOUD, of the United Nations Educational, Scientific and Cultural Organization (UNESCO), speaking on "Prospects for ratifications of the Convention", noted that the Migrants Convention was the least ratified of the international human rights conventions, and UNESCO had studied that question. Among reasons found were economic ones: migrant workers played an essential role in allowing the economic competitivity of many countries; and a lack of means by States to combat the conditions in which migrants worked. Another problem was that the issue of migrants was complex and dealing with that issue covered a wide range of Governmental areas, including education, health care, labour law, judicial procedures, banking (for remittances), and international cooperation.
Moreover, the Convention covered both immigrants and emigrants, which often were dealt with by different governmental bodies, Mr. Pecoud pointed out. Moreover, many countries that hosted a number of migrants on their soil had political realities that denied those migrants existence. Therefore the first step was the raising of awareness that migration was a fact of modern life, and an important issue that would have to be dealt with. The fact was that most migratory flows occurring today happened outside of State frameworks. Many migrants moved through their own networks, including networks or friends, or via clandestine, criminal networks. This privatisation of migration, which was not per se against the State, was nevertheless developing outside of State control. States needed to understand that it was in their interest to control such flows, as one of the incentives to ratifying the Convention: migration often occurred in a legal vacuum, and that was precisely why the Convention was so important.
RENÉ PLAETEVOET, of December 18/EPMWR, an international advocacy and resource centre on the human rights of migrant workers, addressing the issue of "actions for ratification of the Convention", said that, at the global level, international non-governmental organizations (NGOs) – working with national, local level partners – had been calling for ratification of the Convention on a regular basis, and such actions were often linked to the celebration of International Migrants Day. For example, in North America a platform had been established in Quebec, bringing together the Immigrant Workers' Centre, PINAY (a migrant workers' group from the Philippines), and two coalitions – one in support of agricultural workers, and another in support of migrant workers. In December 2007, on the occasion of International Migrants Day, that platform had organized an event in Montreal which had then been followed by a joint statement addressed to the provincial and federal authorities. Also last December, in the United States, the National Network on Immigrant and Refugee Rights had released a statement endorsed by some 100 organizations, calling for ratification of the Convention. In Bangladesh, the WARBE Development Foundation, together with other groups, launched a year-long, nationwide petition campaign at an event in Dhaka on the occasion of International Migrants Day in 2007. In France, the platform "Migrant pas Esclave!", had brought together a number of groups and used the 2007 Presidential and parliamentary election as an opportunity to put the issue of ratification of the Convention on the political agenda, launching a petition, publishing an open letter in the newspaper Liberation, and writing to the French Minister for Foreign Affairs on the issue. The campaign in France was not limited to lobbying the national government. It also included awareness-raising activities, and a campaign to get local governments to adopt resolutions asking for ratification of the convention.
Mr. Plaetevoet said, to enhance the effectiveness of the Convention, what was needed was a comprehensive and focused campaign that brought together stakeholders within a particular geographic context. National human rights institutions should be seen as important allies in that task. Turning specifically to the case of the European Union, it was safe to say that none of the European Union Member States would unilaterally ratify the Convention. The French Minister for Foreign Affairs, for example, had said last October that France could not act alone because the policies with respect to asylum and migration were to a large extent set by the European Union. In that context, non-governmental organizations and civil society actors needed to develop an approach for ratification of the Convention that simultaneously targeted the European Union level and the national level. Furthermore, when the new Treaty of Lisbon entered into force there were some interesting opportunities. As that Treaty would give the European Union a "legal personality", in theory that opened the opportunity for the European Union to ratify international conventions. He suggested that a European campaign be launched after next year's European elections, with a target for ratification or signing of the Convention by one or more European Union Member States by 18 December 2010, which would be the tenth anniversary of the official celebration of International Migrants Day.
Finally, regional and national actions for ratification needed to be supported by and linked to global initiatives, Mr. Plaetevoet said. The Global Forum on Migration and Development was one example. The Philippines was a State party to the Convention and the host Government for this year's Global Forum. The Government in Manila had announced that the protection of the rights of migrants would be a theme at this year's forum, and that marked a step forward from last year.
In the ensuing discussion, Sri Lanka noted that all agreed that a ratification campaign for the Convention was needed, and hoped that the Office of the United Nations High Commissioner for Human Rights would launch such a campaign. Turkey addressed the issue of rising anti-immigrant sentiments, and said that the universalization of the Convention could help to counter that. Other initiatives that were working in that area included the Alliance of Civilizations, launched by Turkey and Spain, which also addressed the issue of migrants. What could be done to encourage non-parties to the Convention to understand that migrants were a source of intercultural exchange? A representative of a non-governmental organization asked about exchanges and cooperation between Member States, which was specifically encouraged in the Convention. On irregular migration, Mexico believed that "combating" that phenomenon was not the correct approach, and that countries needed to be respectful of human rights.
The representative of the Philippines gave examples of a number of areas in which there had been regional joint action and agreement in Asia in the area of migrants and their rights.
The representative of Ecuador fully agreed with Mexico that the issue of irregular migration was not one that could be handled by criminalizing persons, and that all migrants, regardless of their status, had to be accorded full human rights. On international cooperation, Ecuador sought for coherence in its domestic policies with international commitments, and it accorded full rights to the migrants from other countries within its borders. UNESCO stressed the need for a great deal of education to change mentalities, both with regard to encouraging States parties to join the Convention, and with regard to the public, in terms of anti-immigrant sentiments. IOM had a number of initiatives to promote understanding of the benefits of migration, and to raise awareness, including a radio programme "18/12", which it disseminated to a number of stations.
PRASAD KARIYAWASAM, Chairperson for the Round Table Discussions, said he could sum up the round table in two sentences: migrant workers could unite countries and peoples and could create prosperity for all. And the Migrant Workers Convention could be the basis of doing that, as well as protecting migrant workers.
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