International Labour Organization

SEAPAT

South-East Asia and the Pacific Multidisciplinary Advisory Team





Regional Workshop on the ILO and International Labour Migration
by the Canadian Human Rights Foundation,
the Ateneo Human Rights Centre
and the Lawasia Human Rights Committee

The Role and Functions of International Organizations
in the Field of Migrant Workers

by
W. R. B÷hning
Director
South-East Asia and the Pacific Multidisciplinary Advisory Team

11-12 January 1999
Manila, Philippines

Table of Contents


I. Introduction

The role that international organizations can play depends on the interests of their member States. States establish and develop international organizations to achieve objectives that they cannot achieve on their own. By the same token, States will not permit international organizations to do things that constitute, in the eyes of these States, interference in their internal affairs.

This is particularly true in the very sensitive field of international migration. The entry, economic activities, residence rights, etc., of foreigners are viewed, to this day, as falling under the sovereignty and reserved domain of States. In the field of international migration, no State likes to be told what it can or cannot do - neither by another State nor by an international organization.

What are the principal functions accorded to international organizations? They may be summarized under four headings:

States have few hesitations in giving international organizations a mandate to collect and disseminate information, especially statistical material, and to carry out studies, notably comparative studies, that enable the analysis of contemporary trends and the drawing of lessons.

Some intergovernmental organizations, the ILO among them, also enjoy the privilege of giving birth to and nurturing international minimum standards. This is due to the inability of any government, except in a hegemonic system that it controls, of setting standards to be adhered to by other governments. Where there is an identified need for establishing international norms in a non-hegemonic system, a large number of States have to agree on procedures and substance for such norms to become a reality. Where levels of treatment are specified, these norms cannot be more than minimum standards.

It is not enough that governments - and, in the ILO's case, employers' and workers' organizations as well - agree on a level of treatment to be embodied in an international Convention. It would constitute no more than a declaration of moral value if the rules agreed upon would not enter into force at the national level and if their application at that level could not be supervised internationally. This being a very sensitive issue, only a few international organizations have been endowed with supervisory mechanisms. The UN only has a very weak supervisory system and practically no sanctions to call on. The ILO has a somewhat stronger system. The European Union has a very strong machinery that includes both the Commission and an independent Court of Justice.

As regards the third activity, the organization of various kinds of meetings to exchange information, to bring countries together with a view to having them cooperate or agree on a course of action to be pursued, it is a very common function of international organizations.

Technical cooperation in the sense of having an intergovernmental organization furnish intellectual, financial or material aid to a country requesting it in the expectation that it might be helpful, is a relatively new function. But it has become the most important function of international organizations in the last several decades.

II. ILO activities in the field of international migration

Objectives

The Organization has set itself two interlocking aims. One is the "protection of the interests of workers when employed in countries other than their own" (Preamble to the Constitution). The second is "to further among the nations of the world programmes which will achieve... (b) the employment of workers in the occupations in which they can have the satisfaction of giving the fullest measure of their skill and attainments and make the greatest contribution to the common well-being; (c) the provision, as a means to the attainment of this end and under adequate guarantees for all concerned, of facilities for...the transfer of labour, including migration for employment and settlement" (Declaration of Philadelphia, section III). The objective deriving from the Preamble to the Constitution has been pursued in the main through standard setting, the second through technical cooperation activities, inspired by the Organization's standards and supported by research at headquarters and in the field. The following is a brief survey of activities intended to permit interested readers to form an opinion on what the ILO does in relation to the objectives specified above.

Standard-setting activities and ILO

There is a little need to recall the contents of the various ILO standards whose purpose is to protect migrant workers. It is more appropriate to indicate the circumstances that gave rise to their adoption and the key principles embodied in the standards. Leaving aside the period between the two world wars, relevant Conventions were adopted in 1949, 1962, 1975 and 1982.

The Migration for Employment Convention (Revised), 1949 (No. 97) and the accompanying Migration for Employment Recommendation (Revised), 1949 (No. 86), which are milestones in international migration legislation, grew out of the turmoil of post-war Europe and the desire to facilitate the transfer of surplus labour from this continent to others. Couched in the language of universally applicable norms, the Convention puts emphasis on, inter alia, medical services, equality of treatment in respect of remuneration and membership of trade unions, the provision of free public employment services and the supervision of employers' or private agencies' recruitment, introduction and placement operations. The Equality of Treatment (Social Security) Convention 1962 (No. 118), extended the advance of social welfare philosophy during the 1950s and 1960s to migrant workers and members of their families, who face special problems due to difficulties in qualifying for certain benefits and the territorial restriction of benefits, etc. Part I of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) constitutes the international community's first attempt to tackle the questions of irregular migration movements and illegal employment that became acute at the beginning of the l970s. Part II seeks to promote greater equality of opportunity and treatment of lawful migrants in respect of employment and occupation. This instrument was supplemented by the Migrant Workers Recommendation, 1975 (No. 151). The Maintenance of Social Security Rights Convention, 1982 (No. 157), to which was added a year later the Maintenance of Social Security Rights Recommendation, 1983, (No. 167), represents a comprehensive attempt to cover migrant workers and their family members, particularly those who, due to the temporariness of their moves and employment, may not be able to benefit from acquired rights or rights in the course of acquisition.

Topical as they were at various points in time, the Organization's standards in favour of migrants have only enjoyed limited and declining numbers of ratifications (Convention No. 97:41, Convention No. 118:39, Convention No. 143:18 and Convention No. 157:3 ratifications). Moreover, whereas these standards are of primary relevance to migrant-receiving countries, most States were sending rather than receiving workers at the moment of ratification. This trend is confirmed by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was elaborated with the technical assistance of the ILO and adopted by the United Nations General Assembly in 1990. Only 10 countries have so far been willing to be bound by it - Bangladesh, Bosnia-Herzegovina, Cape Verde, Colombia, Egypt, Morocco, the Philippines, Seychelles, Sri Lanka and Uganda - all senders of workers. One reason for the decreasing trend of ratification is the growing complexity, variety and spread of international migration movements. Another is the difficulty of covering this complexity with stipulations that effectively secure migrants' basic rights. Yet another set of reasons is political, such as the reciprocity principle underpinning ILO Convention No. 157, which reduces the instrument's appeal to developing countries.

The Organization's redress procedures under articles 24 and 26 of the Constitution have been activated on a few occasions to correct alleged non-observance of ILO standards, though it has usually been standards other than those mentioned above which have provided the basis of the search for solutions, such as the forced labour Conventions and the Protection of Wages Convention, 1949 (No. 95). At the beginning of the l980s, the situation of Haitian migrants on the Dominican Republic's sugar plantations was the subject of a complaint under article 26 of the Constitution. The Committee of Experts on the Application of Conventions and Recommendations has ever since reminded both countries of the need to implement fully the recommendations of the Commission of Inquiry. During the Gulf crisis, the Federation of Egyptian Trade Unions made a representation under article 24 alleging, inter alia, that the country's workers who returned from Iraq prior to the invasion of Kuwait had not received the wages owed to them.

The Office has resorted to less formal means of tackling problems, always of course in the light of ILO standards. For example, following the expulsion of tens of thousands of Tunisian workers from the Libyan Arab Jamahiriya in August 1985, the Government of Tunisia lodged a complaint before the ILO against the Libyan Government alleging violations of Conventions Nos. 95, 111 and 118, which both States had ratified. The Director-General offered his good offices to assist the two countries in finding solutions to the problems raised, such as the non-payment of wages and compensation due to premature termination of employment, etc. Representatives of the two Governments met under ILO auspices to discuss the methods appropriate to dealing with those problems in the light of ILO standards; and the matter was eventually settled by unilateral decision of the President of the Libyan Arab Jamahiriya.

Yet another approach was used to contribute to a solution of the many and widespread problems alleged to have occurred in the employment of Arab and Asian migrant workers in countries of the Persian Gulf region. Informal round-table meetings of representatives from receiving and sending countries were held - two were exclusively focussed on the subject of migrants' recruitment and employment conditions, one spent much time on the problems experienced by domestics - without publicity and without recommendations or conclusions to be agreed upon by the participants. The intense discussions helped the parties to understand better the issues involved, although no breakthroughs appear to have resulted from them, due to the lack of any follow-up mechanism.

Technical cooperation and advisory services

The "old generation" of technical cooperation projects that moved experts and equipment etc. to a country over lengthy periods of time got under way in the field of migrant workers in 1976 in Colombia, which had requested aid in the formulation and implementation of its policy of sending labour to Venezuela. Most activities took place in Colombia, others brought the two countries together through seminars. Regional social security arrangements were the subject of several projects in Africa in the 1980s, for example in the Union of Central African States (UDEAC - Union d'Etats d'Afrique Centrale) and the Economic Community of the Great Lakes Countries (CEPGL - CommunautÚ Economique des Pays des Grands Lacs). Despite considerable efforts by the Office, including the training of social security administrators, the institutional links between member States of regional organizations never functioned properly.

The entrepreneurial capacities sometimes attributed to migrant workers were the subject of projects in countries as different as Germany and the Philippines. In Germany, Turkish and other foreign nationals were helped and trained in small-enterprise development as well as in imparting training to second generation migrants in their enterprises, and a number of the enterprises supported by the ILO project are today flourishing businesses. In the Philippines, three pilot projects were carried out in Manila with the Employers' Confederation of the Philippines, in Cebu City with the Cebu Chamber of Commerce and Industry, and in Tacloban City with the Leyte-Samar Rural Development Workers' Association, to test approaches for the delivery of support services to various target groups of return migrants and their families. A Workshop on reintegration through micro-entrepreneurial development was held under ILO auspices in Manila in January 1999.

A regional project directed from Bangkok in the late 1980s and early 1990s ushered in a new generation of wide-ranging ILO assistance. Benefiting eventually 12 Asian countries of emigration, the regional project tackled their individual or shared economic, statistical and legislative information needs; helped several of them to set up or expand emigration institutions; provided training to government officials, including labour attaches stationed in migrant-receiving countries; and brought to bear the Office's expertise on social security questions at the national and subregional levels.

Technical advisory services constitute the modem form of Office activities in the field of migrant workers, that is, policy analysis and guidance in response to direct requests or under UNDP's TSS-1 auspices, as well as assistance to trade union organizations. A sample of technical advisory services include:

Other activities

A few distinct other activities are worth singling out summarily. At the beginning of the 1990s the Office began to search for and obtained extra-budgetary funds to carry out a project aimed at reducing discrimination against migrant workers in high-income countries. This project comprises (i) "practice tests" to determine whether or not employers discriminate against migrants who are legally on a par with nationals, (ii) evaluations of the actual workings of national redress mechanisms that aggrieved migrants can make use of, and (iii) examinations of equal opportunity training courses of public or private employers in favour of personnel managers, recruitment officers, etc.

The ILO's Bureau of Statistics has extended its expertise to international migration statistics and requested information on data from countries for possible inclusion in future issues of the Year Book of Labour Statistics. Guidelines to improve data collection systems on international migration have also been elaborated, which can serve as a basis for future technical advisory services in this field. These were published in book form under the title International Migration Statistics: Guidelines for improving data collection systems, by R. E. Bilsborrow, et al. (ILO, 1997). Two manuals to serve policy-makers and administrators have been elaborated by the ILO. One is entitled Employing foreign workers. A manual on policies and procedures of special interest to middle- and low-income countries, by W. R. Bohning (ILO, 1996), the other Sending workers abroad: A manual for low- and middle-income countries, by M. Abella (ILO, 1997).

III. April 1997 Meeting of Experts

While ILO Conventions have often been pathbreaking instruments, they have a tendency to "age" where they go into detail of the subject matters, or they may not be fully adapted to changing circumstances or new developments. This holds true of the two Conventions concerned with migrant workers, which date back to 1949 and 1975, respectively. To take account of this fact, but without going through the process of elaborating new Conventions, the ILO convened, in April 1997, a Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration. In actual fact, the April 1997 Meeting of Experts had three purposes. The first one was to elaborate guidelines on the protection of workers engaged in time-bound employment - essentially seasonal workers, true project-tied workers, special purpose workers, cross-border service providers, students and trainees - who were not covered by the 1949 and 1975 Conventions.

The second was to elaborate guidelines on the protection of migrants who are recruited by private employment agencies. In the ILO, "guidelines" have the objective of inspiring policy makers and administrators. They are not subject to ratification or adherence and, therefore, carry no legal obligation. It is up to the ILO's constituents to decide how to use them and adapt them to their national situations.

The third purpose of the April 1997 Meeting of Experts was to tackle the problem of persistent maltreatment and exploitation of migrant workers, which continued to exist in several parts of the world even though international standards of minimum treatment had been defined at the global level. The question was, if the Organization's international migration standards had limited influence on the recruitment and employment conditions of migrants in the world at large, and if the formal and informal redress mechanisms to right alleged wrongs had not in the past had the desired impact, whether one could envisage an instrument that would appear less threatening to governments and more along the lines of technical advice rather than "international condemnation." What the ILO envisaged was referred to as pattern or practice studies of the exploitation of migrant workers not falling under Convention-based procedures.

The April 1997 Meeting of Experts agreed to this idea, and later in the year the Governing Body of the ILO formally endorsed it. The details are indicated in Annex III of document GB.270/5.

To illustrate the idea of "pattern or practice studies", one example might be that of a trade union organization in a country of employment which appeals to the Office to look into the alleged exploitation of migrants in a particular sector of the economy. The Office could respond positively and envisage to commission, or carry out, a study in that country. The results of the investigation would hopefully be the subject of at least informal discussion, preferably tripartite, within the country concerned, with a view to arriving at lasting improvements in situations manifestly far removed from the stipulations of existing international labour standards.

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