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Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
Fundamental rights
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Fundamental rights

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  • 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 situation Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 4. The need for a normative framework Human beings as workers and family members are at the heart of international labour migration• It has long been recognized that market mechanisms alone do not assure respect for and protection of migrants human and labour rights• Absence of recognition of migrants rights and lack of their enforcement continues to entail high costs in abuse, exploitation and violation of migrants rights and dignity, including in the workplace.• Anti-foreigner xenophobic violence is reported on the rise in many places around the world. Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 5. Normative Framework• A set of international legal standards formulated over a century recognize rights of migrants, provide for their protection, and ground and guide formulation of labour migration policies• Implementation and monitoring of standards is essential to ensure compliance and improve national law and policy• International labour standards --agreed by ILO tripartite constituents – are key to protecting migrants Migration 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 human rights instruments.• International Labour Standards, all of them, except where – rarely – foreign workers are exempted.• Refugee and asylum law, the 1951 Convention and the 1967 Protocol on the Status of Refugees.• Consular Relations, namely the Vienna Convention.• International Criminal Law, namely the Protocols on Trafficking in persons and smuggling of migrants (of the (International Convention on Transnational Organized Crime) Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 7. Normative Framework Three 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 justice protecting all including “…workers when employed in countries other than their own”• International Labour Standards (ILS)• ILO Declaration on Fundamental Principles and Rights at Work, 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 protection of 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 of nationality and immigration status unless otherwise statedState prerogative to regulate access to territory and labour market Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 12. Applicable International Labour Standards ILO Fundamental Conventions (widely ratified) Freedom of Association and Protection of the Right to C87 1948 Organise Convention C98 Right to Organise and Collective Bargaining Convention 1949 C29 Forced Labour Convention 1930C105 Abolition of Forced Labour Convention 1957C138 Minimum Age Convention 1973C182 Worst Forms of Child Labour Convention 1999C100 Equal Remuneration Convention 1951C111 Discrimination (Employment and Occupation) Convention 1958 Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 13. Applicable International Labour Standards ILO Governance standards (examples) C81 Labour Inspection Convention 1947 C122 Employment Policy Convention 1949ILO Conventions particularly applicable to migrant workers C19 Equality of Treatment (Accident Compensation) Convn 1925 C102 Social Security (Minimum Standards) Convention 1952 C118 Equality of Treatment (Social Security) Convention 1962 C157 Maintenance of Social Security Rights Convention 1982 C181 Private Employment Agencies Convention 1997 Migration 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 Convention 1949C131 Minimum Wage Fixing 1970C183 Maternity Protection Convention 2000C121 Employment Injury Benefits Convention 1964C169 Indigenous and Tribal Peoples Convention 1989R200 HIV and AIDS Recommendation 2010C189 Domestic Workers Convention (&R201) 2011 Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 15. Applicable International Labour StandardsInstruments on labour migration and protection of migrant workers C97 Migration for Employment Convention (Revised) 1949 Migrant Workers (Supplementary Provisions) C143 1975 Convention R86 Migration for Employment Recommendation (Revised) 1949 R151 Migrant Workers Recommendation 1975 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 and discrimination• Scope  Migrant workers and their families regularly admitted to the country of employment• Categories of workers excluded  Frontier workers, seafarers, members of liberal professions and artists entering on a short-term basis Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 17. Convention No. 97: Structure• Regulation of conditions in which labour migration takes place• General protection provisions• Non-discrimination and equality of treatment between migrants and nationals  Wages/ working conditions  Trade union rights  Accommodation  Social security  Employment taxes  Access to courts Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 18. C 97: Cooperation• Whenever necessary or desirable, conclusion of agreements to regulate migration for employment in cases where numbers of migrants are sufficiently large• Recommendation No. 86 (Annex): model bilateral labour migration agreement Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 19. Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)• Historical context• Aims  Facilitate and regulate labour migration flows  Suppress activities of organizers of clandestine movements of migrant workers  Provide minimum protection to all migrant workers• Structure: 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 abusive conditions – Minimum standards• Basic human rights of all MW• Protects regular status of MW when loss of employment  But distinguished from “a right to stay”• Migrants in an irregular situation :  Equal treatment in respect of rights arising out of past employment (e.g. remuneration, social security)  Access to legal proceedings  No costs on expulsion  Possibility of regularization Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 21. C143 – Part II: National policy on equality of opportunity and treatment• Employment and occupation (some limitations)• Social security (some limitations)• Trade union rights• Cultural rights• Individual and collective freedoms Excluded categories from Part II: frontier workers; artists and members of the liberal professions entering on a short- term basis, seafarers, trainees, persons on specific temporary 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 questions concerning migration for employment• Convention No. 143, Art. 7:  Consultation on laws and regulations and other measures designed to prevent and eliminate migration abuses Migration 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, Africa Africa Zambia Togo, Uganda Belize, Bahamas, Barbados, Brazil, Cuba, Dominica, Americas and Venezuela Ecuador, Grenada, Guatemala, Guyana, Jamaica, Saint Americas and Caribbean Caribbean Lucia, Trinidad and Tobago, Uruguay, Venezuela Hong Kong (China SAR), Kyrgyzstan, Malaysia (Sabah), Philippines, TajikistanAsia and Pacific Asia and Pacific New 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 of Europe Yugoslav Republic of Macedonia, Moldova, Europe Macedonia, 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 143 Key features• Do not affect the prerogative of States to determine admission 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, have basic human and labour rights  Once admitted to employment, regular migrant workers should enjoy 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 a rights-based rule of law framework Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 25. International Human Rights System International human rights system UN Charter- Treaty-based based Human Rights Treaty bodies Council Special Procedures Universal Periodic Review (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 Framework International Human Rights instruments• Universal Declaration of Human Rights (UDHR) 1948 Nine core international human rights treaties International Covenant on the Elimination of Racism and ICERD 1965 Discrimination ICCPR International Covenant on Civic and Political Rights 1966 International Covenant on Economic, Social and Cultural ICESCR 1966 Rights Committee on the Elimination of Discrimination Against CEDWA 1976 Women CAT Convention Against Torture 1984 CRC Convention on the Rights of Children 1989 International Convention on the Protection of the Rights ICRMW 1990 of All Migrant Workers and Members of Their Families CRPD Convention on the Rights of Persons with Disabilities 2006 Migration 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 and their families:  Right to leave/enter/return to one’s own country - ICCPR  Rights to freedom of assembly and association- ICCPR and 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 in States parties• Adopt General Comments / Recommendations on 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 governing admission of MW and members of their families (Part VII, Art. 79)• Protects basic rights of all MW and their families on the basis of equality with nationals (Part III)• Grants regular migrants additional rights on the basis of equality with nationals (Part IV)• States must cooperate in promoting sound equitable, humane and lawful 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 periodic reports (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 process http://www2.ohchr.org/english/bodies/cmw/ Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 32. UN Convention on Migrant Workers, 1990 Ratifications Ratifications Signatories 43 State Parties 14 State Parties Algeria, 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, Togo Uganda Argentina, Belize, Bolivia, Chile, Colombia, Ecuador, El Salvador, Americas and Americas and Guatemala, Guyana, Honduras, - Caribbean Caribbean Jamaica, Mexico, Nicaragua, Paraguay, Peru, St. Vincent and the Grenadines, Uruguay Bangladesh, Kyrgyzstan, Indonesia, Asia and Pacific Cambodia, IndonesiaAsia and Pacific Philippines, Sri Lanka, Tajikistan, Timor-Leste Europe Montenegro, Serbia Albania, Azerbaijan, Bosnia and Europe Herzegovina, Turkey Middle East - Middle East Syria Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 33. Regional frameworks: Binding and non-binding instruments• Africa  African Charter on Human and Peoples’ Rights 1981  Regional integration regimes e.g. Economic Community Of West African States (ECOWAS), South African Development 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), European Securities Committee (ESC), European Convention on the Legal Status of Migrant Workers (ECLSMW)  Regional integration - European Union Free movement of EU workers / citizens EU law and policy on asylum and (labour) migration from third countries Migration 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 of labour migration in light of expansion and increasing complexity of international migration• Some countries reluctant to ratify legally binding Conventions• 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 on Labour Migration (2006)• Identified in Plan of Action for migrant workers adopted by ILC, June 2004• Objective in PoA: develop “a non-binding multilateral framework for a rights-based approach to labour migration, which takes account of labour market needs”• Framework drawn up by Tripartite Meeting of Experts and approved by ILO GB in March 2006  international principles and guidelines illustrated by 132 “best practices” in 9 areas  http://www.ilo.org/public/english/protection/migrant/download /multilat_fwk_en.pdf Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 36. ILO Multilateral Framework on Labour Migration Follow-up• Framework translated, widely circulated and publicized• Efforts mobilized to support PoA and Framework• The Framework has been used as guide for developing national labour migration policies in Bangladesh, Kenya, Nepal, Nigeria, Sri Lanka, Zimbabwe and other countries• Principles and guidelines incorporated into ILO DWCPs and TC projects• Work with trade unions, employers and civil society to promote Framework implementation• The MLF offers a comprehensive, relevant and useful guide for elaboration of law and policy in PNG Migration in ACP Countries : Promoting Development and Enhancing Protection
  • 37. Conclusions• Greater awareness of application of human rights to all migrant workers and their families  “Migrants’ rights are human rights”  Enhanced work of Human rights treaty bodies and the ILO supervisory bodies  UN Special Rapporteur  Focus of Trade union concern  CSO and NGO action  Migrant organizing• Steady progress in acceptance of international standards on Migrant Workers• Importance of regional legal frameworks and case law Migration in ACP Countries : Promoting Development and Enhancing Protection

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