Detailed summary and evaluation of the material: The Migrant Workers Convention Introduction As of 2002, the migrant population

worldwide was believed to have reached 175 million people1, double the number it had been 25 years previously. Migrant workers in particular play an important part both in the social context of their country of residence, but also with regard to remittances in 2000, remittances from foreign, migrant workers augmented GDP by more than 10%2 in countries including El Salvador and Jordan. The role of migrant workers in the present day is tenuous the government of the UK is, for example, increasingly under pressure to limit the number of migrants entering the country3 and around 40% of governments4 have policies directed at lowering the amount of migration into their countries. However, migration still has major effects on the world, and is necessary to supplement populations where the working population would otherwise not suffice. There are also positive attributes that migrant workers being to their foreign employers, including for example, language skills and multicultural identities. What is also clear though is the necessity for specific provisions to protect the rights of migrant worker. A special report adopted by the UN in 1976 outlined the exploitation of the labour provided by migrant workers, and encouraged that rights related to migrant workers be codified5. This coupled with a reiteration of this stance at a convention in 19786 led to the creation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which was ready for ratification in 1993. It did not enter into force, however until 2003, when it was ratified by Guatemala and El Salvador7 This essay seeks to examine the provisions contained within the Convention with relation to both legal and illegal migrant workers. It will examine the problems of the Convention had passing into force, and briefly critique the low ratification of the Convention in general. It will go onto critically assess these rights, in order to come to a conclusion on whether they should be expanded or whether they are sufficient to protect the significant working migrant population The status of the Convention
1

From the UN press release dated 28/10/2002 - available at http://www.un.org/News/Press/docs/2002/pop844.doc.htm 2 Ibid. 3 http://www.guardian.co.uk/commentisfree/2010/mar/29/immigration-asylum-thirdworld 4 UN Press release, supra. 5 The International Convention on Migrant Workers and its Committee, Fact Sheet No. 24 (Rev. 1), p. 2. 6 Ibid. 7 The ratification of the Convention by these two States brought the number up to twenty, the number required for a Convention to come into force.

The Convention came about largely due to observations made in the 1970s that migrant workers were left largely prone and unprotected when they sought employment outside their home countries. The Convention is currently in force, having been ratified first by an insufficient number of countries when it was first made available in 1993. It applies to all migrant workers, for the duration of the period during which they are classified as migrant workers, and is also extended to their family members. The Convention does not aim to create new rights; rather, it aims to put migrant workers and nationals on the same footing in the eyes of the law, affording both equal protection. Bohning says that migrant workers are less protected against [a] States unjust exercise of authority and employers whims8 Thus, the Convention is concerned primarily with the specification of inclusive human rights that are extended to the migrant worker and his or her family. It is important to note that whilst the Convention is in force, it has not been overwhelmingly ratified, with many developed countries, as well as major developing countries (such as India) glaring omissions on the list. To date, only 41 States have ratified the Convention9. Definition what counts as a migrant worker? A migrant worker is defined under Article 2 of the Convention, which says that any person who is to be engaged, is engaged or has been engaged in paid work in a country of which he or she is not a national. This includes frontier, itinerant, projecttied, specified employment and self-employed migrant workers10, specified at Art. 2(2). A distinction is also made in the Convention between documented or authorized migrant workers and undocumented or irregular migrant workers11. The rights contained within the Convention are specified as applying to both of these groups with respect to human rights, which are detailed in Part III of the Convention. There are also rights enshrined in the Convention that are applicable only to documented migrant workers in a regular situation12 these are described in Part IV of the Convention. Rights afforded by the Convention As explained above, the Convention serves in large part to specify the inclusion of migrant workers and their families as protected individuals under human rights instruments. To this extent, many provisions, especially in Part III of the Convention, articulate rights to this extent: the right to life13, the rights to freedom from torture14 and
8

Bohning, R, The ILO and the new UN Convention on Migrant Workers: The Past and Future, 25 IMR 698-709 at p. 698 9 http://www.ohchr.org/EN/NewsEvents/Pages/GuideonStrengtheningofMigrantsrights.aspx 10 Ibid. at p. 705 11 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (hereafter the Convention), Article 5(1) and (2) 12 Ibid.
13 14

ICRMW Art. 9 Ibid. Art. 10

slavery15 etc. However, there are also a number of provisos that make the Convention contentious, especially to developed countries. For example, at Article 21, requirements are prescribed for the manner by which a State may procure a migrants documents. There are also indiscriminate requirements in place with regard to a States ability to repatriate migrant workers, and provisions that create rights for a migrant worker who would otherwise be expelled from that State16. This has a major impact on the effects of the Convention, as developed countries tend to be the biggest receivers of migrant workers migrants made up 10.3% of the population in developed countries in 200917. Criticisms of the Convention: Bars to ratification. The Convention and its effects in Europe were examined in a 2007 UNESCO report by Euan MacDonald and Ryszard Cholewinski18, who outlined several major problems that discouraged developed nations from ratifying the ICRMW. Limitations on sovereignty imposed by the Convention The first of these dealt with the fear of many First World governments that the rights enshrined in the Convention. The Convention makes broad demands and specifies the methods by which ratifying States should deal with migrant workers under their jurisdiction19. The argument is that the individual policies already in place by which various governments choose to regulate immigration would be under threat by the limitations in the Convention20. The argument against this is persuasive Art. 79 of the Convention provides that the criteria governing admission of migrant workers is for the government to decide that it is only the legal status and treatment of migrant workers with which the Convention is concerned. Nevertheless, the limitations mandated by the Convention, for example with regards to length of stay, do threaten to reign in the ability of the individual governments to make sovereign decisions with regards to migration policy. Right of reunification It is important to note that the Convention covers not only the right of a migrant worker but also of his spouse or other equivalent partner and any other dependent persons who are recognized as family21 to remain in the country of employment. For many receiving countries, the implications of a right to bring the spouse as well as any dependent persons is a step too far, and poses a major constraint on the ability of
15 16

Ibid. Art. 11 ICRMW supra. Art. 22 17 UN Department of Economic and Social Affairs, Population Division, Chart on International Migration 2009, htt[://www.unpopulation.org 18 MacDonald and Cholewinski, The Migrant Workers Convention in Europe, (UNESCO, 2007), p. 51 19 Ibid. p. 52 20 Ibid. 21 Art. 4

a government to control admission procedures for migrant workers. For example, Art. 45(1)(c) requires a State to provide equal access to social and health services for migrant workers and their dependents. The demand implicit in the Convention is therefore not only that the government protect the rights and functions of migrant workers, but of everyone they bring with them. There is a provision in the Convention that specifies that nothing in the Convention shall affect22 the right of a State Part to determine entry criteria for migrant workers and their families. It seems, though, that the admission criteria would still have to fall in line with the limitations set out in the Convention. Financial arguments against ratification. In relation to the right of reunification, there are financial implications for each individual government that must also be considered. Having to bear to costs of the services described above would be an increased strain on the burden of the government to provide for its population. There have also been arguments about the infrastructure that would need to be established in the case of ratification. Ratifying the Convention would demonstrate a commitment on behalf of a State to uphold the right of migrant workers, and migrant friendly policies as such serve to encourage and influx of people. MacDonald and Cholewinki point out that after ratifying the Convention, it would be necessary for a State to make changes to the systems that are already in place23. This includes changes to domestic law and the implementation of enforcement instruments. These measures, though, require significant investment, which puts States off. Superfluous provisions The argument has also been put forth that many of the limitations defined and enshrined in the Convention already exist in other parts of the case law. Bohring states that of the 27 substantive Articles in Part III of the Convention24, ten of these are repetitions of those contained in the International Labour Organization conventions25, with a further five covered by that organizations Recommendations. He goes on to explain several other provisions that have overlapped provisions made in ILO Conventions and Recommendations. The argument here is simple that those States who have not ratified the ICRMW essentially have no need to, since the provisions therein are substantially covered by treaties which have already been ratified and implemented. To ratify a further treaty when many of its provisions are accounted for elsewhere is a waste of time and effort and resources. The rights of irregular migrant workers Most importantly is the idea that the Convention bestows rights upon those migrant
22 23

Art. 79 MacDonald and Cholewinski, supra. P. 57 24 Bohring, supra. P. 705 25 Ibid.

workers who are not documented or authorized to work for remuneration. Unauthorized migrants are, by definition, live in a State without the express permission of that State, and therefore do so illegally. It is not a prerogative of a State to grant rights to those who are not part of their responsibility. However it is important to note that the rights provided for in the Convention extend mainly to authorized migrant workers. The main Chapter of provisions which affect migrant workers are contained in Chapter III, and these substantially relate to the provisions for the human rights of migrants. The provisions that extend extra rights to migrant workers, such as the Art. 39 right to freedom of movement and settlement within the country. Since few extra protective measures are extended to irregular migrant workers, it appears that fears over the extension of rights to unauthorized migrant workers is not a little unfounded. MacDonald and Cholewinski26 argue t But more importantly affords too many rights to irregular (non-documented) migrant workers. Convention goal of battling the ill-treatment of migrant workers (especially irregular migrant workers) by granting them rights legitimizes them. Argument that granting rights to irregular migrant workers will only encourage the flow of irregular migrants to the ratifying State. Conclusion: Is the Convention enough? The rights articulated in the Convention are broad and far-reaching, and appear to have adequately addressed the fears related to the dangers of being a migrant worker. The problem is, however, the lack of ratification by any developed country. Migration follows a pattern of movement from the less developed world to the more developed world, and this movement is predominantly based on the need and desire to find employment. The Convention addresses the risk of unauthorized movement of persons27, it provides against the smuggling and trafficking of workers28, it provides remedies for those who require them29. The issues have been addressed, yes, and solutions have been laid down. But unfortunately, all the provisions and safety nets that are cast in the Convention are meaningless without proper support for the initiatives contained therein. As of July 2009, only 41 States had ratified the Convention, and this was sixteen years after it was ready for ratification30. None of the countries that have ratified the Convention are developed or First World States31, which are, overwhelmingly, the States that tend to accept migrant populations. If the receiving States are not abiding by the provisions set out, then it matters little if the Convention is extended or if its provisions are not enough, because the majority of workers that need the protection will not receive it. What requires re-examination, therefore, are the bars to ratification that were discussed above. Perhaps an evaluation of the concepts contained in the Convention needs to be
26 27

Supra. Art. 14; Art. 17. 28 See, for example, Art. 11. 29 Art. 76(b) and (c) 30 UN Department of Economic and Social Affairs, Population Division, Chart on International Migration 2009, htt[://www.unpopulation.org 31 Ibid.

carried out with an eye towards compromise. Perhaps what is necessary is the continued lobbying of developed States to ratify. Whatever the solution, the increased populations of migrant workers internationally mean that the protections contained in the Convention are growing ever more necessary.