Geneva, June 1999
Report III (1B)
Scope of the instruments
83. The two Conventions and Recommendations forming the basis of this survey have as their common aim the protection of workers from discrimination and exploitation while employed in countries other than their own. The terms used in the titles and the texts of these instruments, as clarified through the preparatory work for their adoption and by the Committee in the supervisory process, spell out the scope of the key features of the instruments.
84. Born of the upheavals that occurred in Europe in the aftermath of the Second World War and prompted by a concern to facilitate the movement of surplus labour from this continent to other parts of the world, this Convention consists of 12 operative Articles and three annexes.
85. Under Article 11(1) of the Convention, the term "migrant for employment" means a person who migrates from one country to another with a view to being employed otherwise than on his or her own account. The scope of Convention No. 97 excludes frontier workers, the short-term entry of members of the liberal professions and artistes, and seafarers (Article 11(2)).
(a) Measures aiming to regulate the condition
in which migration for employment must occur
86. Under Article 1 of Convention No. 97, ratifying States undertake to make available on request to the ILO and to other Members information on national policies, laws and regulations relating to emigration and immigration; on special provisions concerning migration for employment and the conditions of work and livelihood of migrants for employment; and concerning general agreements and special arrangements concluded on these questions. This exchange of information must be supplemented by cooperation between employment services and other services connected with migration (Article 7); and, where appropriate, cooperation against misleading propaganda (Article 3(2)). Lastly, Article 10 invites the Members concerned to enter into agreements for the purpose of regulating matters of common concern arising in connection with the application of the Convention.
(b) General protection provisions
87. The Convention provides for the maintenance of a free service to assist migrants and provide them with information (Article 2); Members undertake to take appropriate steps against misleading propaganda relating to emigration and immigration (Article 3(1)); measures to facilitate the departure, journey and reception of migrants for employment (Article 4); the maintenance of appropriate medical services (Article 5); and permission for migrants for employment to transfer their earnings and savings (Article 9). The Convention also prohibits the expulsion of migrants for employment admitted on a permanent basis in the event of incapacity for work (Article 8).
(c) Measures aiming to ensure equal treatment in
a number of areas to regular migrant workers
88. Article 6 prohibits inequality of treatment between migrant workers and nationals arising out of laws or regulations or the practices of the administrative authorities in four areas: living and working conditions, social security, employment taxes and access to justice.
89. Under Article 14, each Member ratifying the Convention may, by an express declaration, exclude from its ratification any or all of the annexes. In the absence of such a declaration, the provisions of the annexes have the same effect as those of the Convention. The first two annexes deal with organized migration for employment, while the third, more general in scope, applies to migration for employment, whether organized or spontaneous.
(i) Annex I
90. Annex I, consisting of eight Articles, deals with the recruitment, placing and conditions of labour of migrants for employment recruited otherwise than under government-sponsored arrangements for group transfer.
(ii) Annex II
91. Annex II, consisting of 13 Articles, deals with the recruitment, placing and conditions of labour of migrants for employment recruited under government-sponsored arrangements for group transfer.
(iii) Annex III
92. Annex III, consisting of two Articles, regulates the importation of the personal effects, tools and equipment of migrants for employment.
93. This Recommendation, which is divided into eight parts (comprising 21 Paragraphs), recommends a series of measures intended to supplement the provisions of Convention No. 97, in particular as regards information and assistance to migrants (Part III); recruitment and selection (Part IV); equality of treatment in access to employment and supervision of conditions of employment (Part V). It also contains provisions aimed at protecting migrant workers against expulsion on account of their lack of means or the state of the employment market (Part VI). An annex to the Recommendation sets forth the methods of application of the principles laid down in Convention No. 97 and Recommendation No. 86, and is intended to serve as a model for the conclusion of bilateral agreements.
94. In 1975, when the Conference adopted this Convention, the international economic and social context had undergone radical changes since the adoption of the 1949 instruments. It was no longer a question of facilitating the movement of surplus labour, but of bringing migration flows under control and hence focusing on the elimination of illegal migration and suppressing the activities of organizers of clandestine movements of migrants and their accomplices.
95. Convention No. 143 consists of three parts: Part I (Articles 1-9) is the first attempt by the international community to deal with the problems arising out of clandestine migration and illegal employment of migrants, which had become particularly acute in the early 1970s. The provisions of Part II (Articles 10-14) substantially widen the scope of equality between migrant workers in a regular situation and nationals, in particular by extending it to equality of opportunity. Lastly, Part III (Articles 15-24) contains the usual final provisions, in particular Article 16, under which any Member which ratifies the Convention may exclude either Part I or Part II from its acceptance of the Convention at the time of ratification.
(a) Part I
96. Article 1 lays down the general obligation to respect the basic human rights of all migrant workers. The intention is to affirm, without challenging the right of States to regulate migratory flows, the right of migrant workers to be protected, whether or not they entered the country on a regular basis, with or without official documents. The struggle against clandestine immigration calls for the member States concerned to adopt a number of measures to determine systematically whether there are illegally employed migrant workers on its territory and whether any movements of migrants for employment depart from, pass through or arrive in its territory in which the migrants are subjected during their journey, on arrival or during their period of residence and employment to conditions contravening relevant international multilateral or bilateral instruments or agreements, or national laws or regulations (Article 2). At the same time, Members shall, where appropriate in collaboration with other Members, suppress clandestine movements of migrants and illegal employment of migrants and punish the organizers of illicit or clandestine movements of migrants and those who employ workers who have immigrated in illegal conditions, with the aim of preventing and eliminating abuses (Article 3).
97. At the national level, the Convention provides for the adoption and application of sanctions against persons knowingly assisting clandestine or illegal movements of migrants; persons illegally employing migrant workers (employers who are prosecuted on these grounds shall have the right to furnish proof of their good faith); and organizers of clandestine or illegal movements of migrants (Article 6). At the international level, systematic contacts and exchanges of information on these matters shall take place between the member States concerned (Article 4). One of the purposes of this cooperation is to make it possible to prosecute authors of manpower trafficking whatever the country from which they exercise their activities (Article 5). The representative organizations of employers and workers are to be consulted in regard to the laws, regulations and other measures provided for and designed to prevent and eliminate migration in abusive conditions and the possibility of their taking initiatives for this purpose are to be recognized (Article 7). Part I of the Convention also lays down certain protective measures for migrant workers who have lost their employment (Article 8) and for those in an irregular situation (Article 9).
(b) Part II
98. While the provisions of the 1949 instruments are intended to prohibit inequalities of treatment, including those arising out of the action of public authorities, Part II of Convention No. 143 aims to promote equality of opportunity and treatment and the elimination of discrimination in practice. The Conference considered that to eliminate discriminatory provisions or measures from national legislation or practice is not enough in itself, inasmuch that migrants suffer more than others from prejudice and discriminatory attitudes in employment. This is why the 1975 instruments go further and draw upon the provisions of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). They differ, however, on two points: first, national policy must not only promote but also guarantee equality of opportunity and treatment in employment and occupation for migrant workers and members of their families who are lawfully within the territory of the country of employment. Second, this equality of opportunity and treatment also applies to social security, trade union and cultural rights and individual and collective freedoms (Article 10). While leaving it to States to use methods appropriate to national conditions and practice, the Convention lays down a series of measures for this purpose (Article 12). Article 14, however, permits limited restrictions on equality of access to employment. Lastly, Article 13 requires States to facilitate the reunification of the families of migrant workers legally residing in their territory.
99. For the purpose of Part II of Convention No. 143, the definition of the term "migrant worker" excludes two further categories of workers in addition to those mentioned in the 1949 instruments: persons coming specifically for purposes of training or education and persons admitted temporarily to a country at the request of their employer to undertake specific duties or assignments for a limited and defined period of time, and who are required to leave that country on the completion of their duties or assignments (Article 11).
100. This Recommendation consists of three parts: Part I lays down the measures to be taken to ensure respect for the principle of equality of opportunity and treatment between migrant workers lawfully within the territory of a Member and its nationals; Part II lays down principles of social policy intended to enable migrant workers and their families to share in the advantages enjoyed by nationals while taking account of such special needs as they may have until they are adapted to the country of employment; and Part III calls for the adoption of a number of measures to ensure minimum protection, in particular in the event of loss of employment, expulsion and departure from the country of employment.
101. The scope of the ILO instruments in the field of migration is delineated principally by the Organization's mandate to protect the rights and freedoms of workers. That is to say, the instruments are primarily concerned with migrants for employment, as opposed to migrants in general. During the discussion leading to the adoption of the 1949 instruments, it was felt that the ILO was not the appropriate forum to discuss the many and varied problems which face migrants in general. However, it was pointed out that the provisions are intended to cover refugees and displaced persons, in so far as they are workers employed outside their home country.(1)
102. The Conventions and Recommendations were also developed bearing in mind the fact that migration is not merely an economic phenomenon, but also a social one, and that often migration for employment does not affect only the individual involved in the employment relationship, but members of his or her family also. For this reason, throughout the text of these instruments, the protection of many of the rights outside the employment relationship as such are explicitly extended to the members of migrant workers' families. It should be noted that in Convention No. 97, and Part II of Convention No. 143 these provisions apply only to family members who are entitled by law to accompany the migrant.
103. In Convention No. 97, these provisions relate principally to the migration process itself, that is, the entry and departure process. Convention No. 143 broadens the obligations by stipulating in Article 13 that governments must take all necessary measures to "facilitate the reunification of the families of all migrant workers legally residing in its territory".(2) The term "family" is defined in Article 13(2) of Convention No. 143 as "spouse and dependent children, father and mother", although some States have chosen to interpret the term more broadly.(3)
104. The term "migrant for employment" is defined in Article 11, paragraph 1, of Convention No. 97 as "a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment". A similar definition forms the basis of the provisions of Part II of Convention No. 143, given in Article 11(1). It should be noted that this definition covers only migration between countries, that is, migrants are defined as those who cross international boundaries for the purposes of employment, and does not include those workers who move within a country for the purposes of employment.
105. The provisions of Convention No. 97, Recommendation No. 86 and Part II of Convention No. 143 deal only with the protection of migrant workers who have been "regularly admitted" for the purposes of employment. That is to say, individuals who have entered a country illegally are not covered by these provisions. Part I of Convention No. 143 and several provisions of Recommendation No. 151 deal explicitly, however, with the suppression of clandestine migration flows and the protection of irregular status migrants.
106. Article 1 of Convention No. 143 stipulates that ratifying States undertake to protect the basic human rights of "all migrant workers", and Article 3 specifies that the clandestine movement of migrants for employment is to be suppressed, as is the illegal employment of migrants. The introduction of the protection of irregular-status migrants to Convention No. 143 may appear at first sight to explain the low number of ratifications. However, this was not identified as a major barrier by most States which provided information for this survey, and it should be noted that of the 18 States which have ratified Convention No. 143, only one, Norway, has made a declaration under Article 16(1) excluding Part I.(4) Occasionally, governments claimed that clandestine migration and illegal employment was not an issue in their countries, and for that reason, several perceived Part I of the Convention to be of limited relevance.
107. The four instruments dealt with in this survey in general make no distinctions between workers who have migrated for permanent settlement, and those who have migrated for short-term or even seasonal work. States are not permitted to exempt any category of regular-entry migrant worker not specified in the instruments. In other words, no distinction can be made, within the provisions of the instruments, between migrants for permanent settlement and migrants who do not intend to stay for any significant length of time in the host country, such as seasonal workers.(5)
108. Certain provisions, however, relate only to migrants and members of their families who intend to settle permanently in the host country, in particular Article 8 of Convention No. 97 which is aimed at protecting migrant workers and their families from expulsion from the host country on the grounds of incapacity to work. It should be noted that some governments, including those of, for example, Ghana(6) and Kenya,(7) and even among those which have ratified Convention No. 97, such as Hong Kong(8) and Israel,(9) claimed that there were no migrants for permanent settlement in their territory, and that, therefore, these provisions did not apply to the national situation. In particular, the Committee notes the report of Australia which states that: "Part II of Convention No. 143 does not apply to migrant workers who have temporary entry visas." The Committee points out that according to Article 11(2) of Convention No. 143 short-term migrants cannot be excluded from its coverage. Article 11(2)(e) of Convention No. 143, which excludes certain short-term workers, will be addressed in more detail in paragraph 115 below.
109. Beyond the parameters specified above, it should be pointed out that the provisions of neither the 1949 nor the 1975 instruments operate on the basis of reciprocity (unlike the ILO Migration for Employment Convention, 1939 (No. 66), which never entered into force due to lack of ratifications). That is to say, a migrant worker does not have to be the national of a State which has ratified the instruments, or which guarantees equal treatment to the subjects of the ratifying State in order that the provisions apply. In recent years, the Committee has addressed a number of requests to governments(10) reminding them that the provision of these ILO instruments are not dependent upon reciprocity. This has not prevented some governments from providing information for this survey exclusively on migrants originating from particular regions, including countries which had signed reciprocity agreements with the reporting State,(11) or other States, such as the United States from emphasizing that the rights guaranteed to migrant workers depend, in the large part, upon reciprocity on the subject in the migrant's country of origin.
110. The Conventions and Recommendations being considered in this survey explicitly mention categories of workers which are excluded from their provisions. Article 11(2) of Convention No. 97 excludes "(a) frontier workers; (b) artistes and members of the liberal professions who have entered the country on a short-term basis; (c) seamen", and Recommendation No. 86 follows this. Article 11(2) of Convention No. 143 specifies these three exceptions, plus "(d) persons coming specifically for purposes of training or education; (e) employees of organizations or undertakings operating within the territory of a country who have been admitted temporarily to that country at the request of their employer to undertake specific duties or assignments, for a limited and defined period of time, and who are required to leave that country on the completion of their duties or assignments". It should be noted that the exclusion of migrants given in Article 11(2) of Convention No. 143 applies only to the provisions of Part II of the instrument. Part I does not explicitly permit the exclusion of any category of migrant worker.(12) Recommendation No. 151 makes no explicit mention of exceptions. In addition to these exclusions, migrants who are self-employed are excluded by definition from the provisions of any of the four instruments.
111. The Committee considers that while the exclusion of self-employed workers from the scope of application of the instruments was justified when the instruments were adopted, today this is no longer appropriate. In effect, many regular- and irregular-status migrants are employed or self-employed and may even be working in the informal or marginal sections.(13) These migrant workers are offered no protection under the instruments considered in this survey and for this reason the Committee suggests that this point should be included in future discussions regarding these instruments.
112. The term "frontier workers" is not defined in either of the Conventions, and the report form adopted by the Governing Body on these Conventions asks ratifying States to define what they consider, from a legal perspective, the term to mean.(14) Some States, such as Antigua and Barbuda, Grenada, Guyana and Malawi, reported to the Committee that the concept of frontier workers is one which is not applicable, often for reasons of geography. In the past, definition of the term has occasionally led to difficulties of interpretation by member States.(15) Similarly, the working definition of "short-term entry" can be seen to vary widely across States.(16) The third exception, seafarers, was included in Conventions Nos. 97 and 143 principally because a body of international and national legislation -- including a substantial number of ILO Conventions -- had been developed of specific relevance to this group, and it was felt merited distinct protection.
113. The exclusion of "liberal professions and artistes" may be said to have taken on a significance which did not constitute a major migration problem at the time of the drafting of the 1949 and 1975 instruments. Of particular relevance to female migrants, the relatively recent phenomenon wherein women are recruited for employment abroad and issued with permits to work as dancers in night clubs or as hostesses in bars, when in reality they are forced to become "sex workers", has become an issue of increasing concern which did not form a significant element of the migration process 50 years ago.(17)
114. The exclusion of students and trainees from the provisions of Part II of Convention No. 143 appears to reflect the legislation of a number of countries, such as Finland,(18) which also exclude these individuals from legislation relating to the employment of migrant workers. The Committee notes the report of the Republic of Korea which indicates that "industrial trainees" outnumber other foreign workers, but are not covered by the Labour Standards Act, and the Government questions whether this is in conformity with Convention No. 143. The Committee affirms that trainees are excluded from the definition of "migrant worker" as given in Article 11(2)(d) of Convention No. 143, but stresses that this applies only to the provisions of Part II of the Convention.
115. Article 11(2)(e) of Convention No. 143 adds to the list of exceptions "employees of organizations or undertakings operating within the territory of a country who have been admitted temporarily to that country at the request of their employer to undertake specific duties of assignments, for a limited and defined period of time, and who are required to leave that country on the completion of their duties or assignments". The preparatory work(19) to Convention No. 143 stressed that this provision applies essentially to those workers who have special skills, going to a country to undertake specific short-term technical assignments.(20) The provision does not imply that all fixed-term workers can be excluded from the provisions of Part II of Convention No. 143, contrary to that which Australia appears to believe, which indicated that Part II does not apply to any temporary workers. As regards the specific case of seasonal migrant workers, the preparatory work to the adoption of Convention No. 143(21) shows that the definition of "migrant worker" makes "no distinction between seasonal workers and other categories of migrant workers (although the former could not always benefit in fact from all the provisions under consideration)".(22)
116. In principle, the provisions of the instruments relate to both spontaneous and organized forms of migration; that is to say they cover both government-sponsored and privately arranged recruitment as well as workers who migrate outside such programmes in the search for employment. Nevertheless, certain provisions, notably Annexes I and II to Convention No. 97, relate only to recruited workers -- those who have a concrete offer of employment prior to entry into the host country. The general application to both spontaneous and organized migration is one which appears to hinder some States such as Grenada,(23) from fully applying the provisions of the Convention.
117. Subject to the categories of work listed above as exceptions, the provisions of the instruments are to be applied without discrimination to every category of employment. More specifically, the provisions must be applied equally to every member of the economically active non-national population. The State may not make distinctions between migrants on the basis of their type of occupation, the nature of their duties or the level of their salary. In the past the Committee has had to clarify this to a number of countries, pointing out that managers, executive staff, enterprise administrators and highly qualified technicians are migrant workers within the meaning of Article 11 of the Convention. The reports of some countries were unclear as to what extent these groups are covered both in legislation and in practice.(24) Clearly, the exclusion of certain categories of workers on the basis of their level of education, nature of employment or salary is contrary to the spirit, if not the letter, of the instruments.
118. In both 1949 and 1975, the International Labour Conference was at pains to design instruments which would grant protection from abusive conditions of employment and equality of opportunity and treatment to the greatest number of migrants in the greatest number of States. The form of the instruments themselves contributed towards one of the novel aspects of the 1949 instruments, in that they contained flexibly worded provisions specifying only the basic rights of regular-status migrants for employment. The annexes to Convention No. 97, on the other hand, which can be excluded from ratification, provided details of the means of achieving these ends. The first of the annexes relates to individually recruited migrants; the second to migrants recruited under group arrangements; and the third to the personal effects and tools of all migrant workers. This experimental form was designed in order that the maximum number of States possible could consider ratification, and to avoid presenting governments with rigid obligations which may not take into account the particular national situation of each country. At the time of drafting it was stated that the results of this experiment would be seen in the "number of ratifications as a Convention, not only of the Convention itself but of one or other of the annexes".(25) It should be noted that of the 41 countries which have ratified the Convention, only 16 have ratified all the annexes.
119. The form of Convention No. 143 was designed with the same objective in mind, namely to allow as many States as possible to ratify. The division of the instrument into two parts, the first dealing with the management of migrations in abusive conditions and the second dealing with equality of opportunity and treatment between regular entry migrants and nationals and the inclusion of a selective ratification clause in Article 16(1) has aroused as much controversy as the structure of the earlier Convention. Nevertheless, despite the fact that States can exclude either part, it should be noted that, by virtue of Article 16(3), States which do so are still bound to report upon the extent to which effect has been given to the provisions of the part it has not ratified along with reasons for exclusion of the part from ratification.
120. In combination with their experimental structure, the flexible wording of the requirements of the two Conventions also contributed to their novelty. Article 3 of Convention No. 97 states that: "Each Member for which this Convention is in force undertakes that it will, so far as national laws and regulations permit, take all appropriate steps against misleading propaganda relating to emigration and immigration." Article 10 of Convention No. 143 states that: "Each Member for which the Convention is in force undertakes to declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment."
B. Hierarchy of legal provisions relating to migrant workers
121. In the context of national regulations, the implementation of the standards concerning migrant workers is ensured by an extremely wide range of laws and regulations covering all aspects of the instruments and beyond. While specific aspects of the coincidence of national legislation and the provisions of the instruments will be covered under later chapters of this survey, a few general points bear mentioning at this stage.
122. In their reports, governments make particular reference to two different types of laws and regulations: (a) texts of a general nature, such as labour codes and labour laws applying to nationals and non-nationals alike; and (b) texts more specifically designed with migration as the primary focus. Of these latter policies, a further distinction can be made, between those aiming to regulate migration flows and those aiming to protect migrant workers from exploitation and abuse. The objectives of these two types of policies do not necessarily converge. In countries of employment, regulation of migration flows may entail a drastic reduction in numbers of migrants legitimately entering the country, and increased protection of the migrants who do enter may not be the ultimate consequence. These divergencies, while often not apparent from legal texts, can emerge, if the provisions of the law are not reflected in administrative practice. For this reason, such administrative practices need to be closely monitored.(26)
123. In their reports, governments quote the texts of a general nature chiefly in relation to the provisions concerning equality of opportunity and treatment. Often, countries have a general anti-discrimination provision contained in the Constitution or other basic laws,(27) although in some cases, such as Antigua and Barbuda,(28) Belarus(29) and Canada,(30) the application of such provisions to nationals only is explicitly stated. Beyond constitutional provisions, the scope of labour legislation in principle depends on the existence of a work relationship, that is, it is generally specified that the law applies "to workers" regardless of their nationality, as is the case, for example, in Jordan,(31) and Lithuania.(32) Where the definition of the term "workers" makes no specific reference to the latter criterion, as is, for example the case in Egypt and Lebanon, the wording is sufficiently general to cover foreign workers. This is also true of legislation such as that of Bolivia and Norway, whose scope depends on the establishments covered, as well as, for example in Croatia,(33) of legislation on health insurance.
124. Generally speaking, the scope of national legislation on migration is broader than that envisaged by the instruments. Thus, many laws, such as those of France(34) and India,(35) lay down the conditions of entry and sojourn of foreigners, irrespective of whether or not they are workers.
125. In this regard, it should be noted that in national legislation the migrant worker falls into several legal categories. First and foremost, the migrant is regarded as a foreigner and is subject to immigration legislation. Secondly, as a migrant worker, the foreigner may also be subject to special regulations, for example, the right to reside in the country may be dependent upon first holding a work permit. Third, the migrant worker is often, as mentioned above, categorized along with nationals, as a worker, in relation to labour law and labour regulations. Fourth, social security legislation also tends to be phrased in terms covering both nationals and non-nationals, although often with provisions specifically relating to the position of non-national workers. And finally, as a resident in the country, a migrant worker may be subject to rules regarding entitlement to social services and housing.(36)
126. The 1949 and 1975 instruments are intended to have as wide a coverage as possible, in order that as many countries as possible may ratify and implement them. For this reason, their provisions are intended to be flexible and applicable not only to receiving countries, but also to sending countries, as well as to third countries or transit countries, in some cases. A number of States which provided information for this survey cited as a reason for non-ratification the fact that they were primarily countries of emigration as opposed to immigration. Several countries, including Grenada, Mexico and Pakistan,(37) stated that it is the responsibility of migrant-receiving States to implement the instruments. It should be pointed out that the instruments apply both to sending and to receiving countries. Clearly, certain of the provisions specifically relate to the duties of receiving countries to protect workers from abroad, such as articles relating to the reception of migrant workers in the host country and the provision of adequate housing and equality with nationals in relation to working conditions and social security benefits. Other provisions, however, can be applied by the sending country as well, such as those relating to remittances, information provision prior to migration, measures to ensure equality of treatment as regards the content of the employment contract and measures related to the suppression of clandestine migration.
127. Article 1(a) of Convention No. 97 stipulates that all ratifying States must submit information to the Office and other Members on national policies, and on laws and regulations relating to both emigration and immigration. The reports which were submitted indicated that many countries failed to recognize this double applicability of the provisions, and, as was the case with, for example, the Central African Republic,(38) Malawi(39)and Sri Lanka,(40) restricted their responses to legislation and practice relating to either emigration or immigration.
128. Examples of sending countries developing means of participating in the protection of their nationals abroad appear to be various(41) and imaginative. To take two examples, both the Philippines and Sri Lanka have institutionalized the protection of nationals overseas by ensuring that all contracts for workers leaving the country for employment must be approved by the State, and by verifying that the conditions of work and the contract are sufficient to ensure that the worker is not exploited, as well as monitoring working conditions through the deployment of labour attachés working in offices in major receiving countries.(42)
129. Cooperation between sending and receiving countries in the form of both migration policy and in the form of coordination between employment agencies of sending and receiving countries is specifically mentioned in Articles 3(2) and 7 of Convention No. 97. The Model Agreement appended to Recommendation No. 86 indicates the important role of cooperation between sending and receiving States, a role which has, if anything, become more significant since the instruments were drafted.(43) Article 15 of Convention No. 143, stating that "this Convention does not prevent Members from concluding multilateral or bilateral agreements with a view to resolving problems arising from its application", was inserted to counter the claim that some States may consider their obligations fulfilled through such agreements instead of through ratification of the instruments.
130. In conclusion to this section it can be seen that the scope and nature of the provisions of the instruments under study in this survey have been clarified on many occasions. Despite this, neither Convention has succeeded in achieving significant rates of ratification, and a significant number of reports submitted under articles 19, 22 and 35 of the Constitution demonstrate that many States do not fully understand the scope of the instruments. One of the primary objectives of this survey will be to determine to what extent declining ratification of the Conventions is based upon erroneous interpretations of the instruments' provisions, and to what extent they may remain, for whatever reason, difficult to ratify for a significant number of States.
1. See ILC, Record of Proceedings, 32nd Session, Geneva, 1949, p. 285.
2. See below, paras. 470-500.
3. For more details on the application of provisions relating to the families of migrant workers, see paras. 483-487 below.
5. For more information on the application of the instruments to seasonal workers, see ILC, Record of Proceedings, 32nd Session, Geneva, 1949, p. 285, and Appendix XIII, p. 578.
6. Maximum length of stay for migrant workers in Ghana is two years.
7. Kenya only issues permits for specific periods and specific jobs.
8. Maximum length of stay on arrival for migrants is 12 months. It should be noted that the latest report which the Committee has received from Hong Kong was prior to 1 July 1997, when China resumed authority over the territory. Any references to Hong Kong in this survey thus refer to legislation and practice while previously under the authority of the United Kingdom.
9. Maximum length of stay, with extensions, is 27 months, after which period the migrants must leave the country, with the exception of care givers, who can be extended to five years.
10. For example: Benin, Brazil, Burkina Faso, Cameroon, Guinea and Portugal.
11. The report from Norway, for example, focused upon migrants emanating from other countries of the European Union, and contained little information on nationals of other countries working in Norway.
12. The placing of the definition of the term "migrant worker" was the subject of some debate during the discussions leading to the adoption of the 1975 instruments. See ILC, Record of Proceedings, 60th Session, Geneva, 1975, p. 793.
13. See para. 16.
14. Germany has defined the term to mean a person who "while maintaining his domicile in the frontier region of a given country, is employed as a wage-earner in the frontier region of a neighbouring country and returns to his place of domicile at least once a week". The compatibility of this definition with the provisions of s. 6 of the 1990 Order to Make Exceptional Regulations Concerning the Granting of Work Permits to Newly Arriving Foreign Workers was the subject of a direct request addressed to the German Government in 1995 (see note 15 below). Malaysia, for example, although it has no legal definition, interprets the term to mean "persons crossing national frontiers with temporary permits or visas to work and recrossing the frontiers after each day's work or after a short period of work, e.g., one week or one month continuously".
15. For example, a direct request was addressed on this subject to Germany in 1995, questioning whether the definition given in s. 6 of the 1990 Order mentioned in note 14 above, stating that frontier workers had to return across the border daily, and to limit their occupation to two days per week, contradicted the definition given in previous reports to the Office.
16. For example, Malaysia defines short-term workers as "usually interpreted as the entry of a migrant for employment for a short period, ranging from two weeks with a possible extension of up to three or six months at the most". The United Kingdom reports that "short-term entry" is "unlikely to be longer than six months".
17. See para. 23 above.
18. s. 15 of the Aliens Act, No. 378, 1991.
19. See particularly ILC, 60th Session, Geneva, 1975, Record V(2) Office Commentary, p. 19. It should be noted that during the second discussion, the proposal to add a more general provision "excluding all types of short-term workers who are admitted to perform specific functions or tasks for a limited or fixed period of time and have to leave the country when their employment ends" was not adopted (ILC, Record of Proceedings, 32nd Session, Geneva, 1949, Annex 34, para. 68).
20. This exception refers to the situation of workers already employed in organizations or enterprises which carry out activities in a third country to which these workers are detached to undertake specific tasks. The European Community addressed this question in Directive No. 96/71/EC concerning the detachment of workers in the field of the provision of services.
21. ILC, Record of Proceedings, 60th Session, para. 69, 1975.
22. In this respect, see para. 378 below.
23. Grenada provides medical services upon entry into the country only to those participating in government-sponsored migration programmes and not to those recruited by private agents or migrating independently.
24. For example, as illustrated by information supplied by Hong Kong which stated that "most of the people who come to Hong Kong for employment are professional and well-qualified people and are regarded as sufficiently sophisticated to take care of their own needs".
25. ILC, Record of Proceedings, 32nd Session, Geneva, 1949, pp. 285-287.
26. See L. Picard: International labour Conventions and national legislation on migrant workers: Convergence and divergence, Interdepartmental Project on Migrant Workers (Geneva, ILO, 1996), p. 6.
27. For instance, the Constitution Act of Finland as amended on 17 July 1995 extends to all within the jurisdiction of Finland, all basic rights which were previously restricted on the basis of citizenship, with the exception of voting in national elections. For examples of general anti-discrimination constitutional provisions, see paras. 161-202 of the Committee of Experts' Special Survey on Equality in Employment and Occupation in Respect of Convention No. 111, 1996.
28. The Constitutional Order of 1981 stipulates in article 14(4)(b) that the general prohibition of discrimination laid down does not apply "with respect to those who are not citizens".
29. Art. 11 of the Constitution states that "foreign citizens and stateless persons in the territory of Belarus shall have the same rights and freedoms and the same obligations as citizens of Belarus unless otherwise specified by the Constitution, laws and international agreements".
30. The Constitutional Act of Canada, 1982 (79) Schedule B, Part I (Canadian Charter of Rights and Freedoms) illustrates the distinction between provisions applying to citizens only and provisions applying to all within the country -- arts. 2, 7, 8 and 9 refer to "everyone" while arts. 3, 6(1) and 6(2), relating to mobility and political rights, refer to "every citizen of Canada".
31. The Labour Code of Jordan, Act No. 8 of 1996 defines workers as "any person, male or female performing work against remuneration for an employer and under his direction, including minors, trainees and persons on a trial period". In the report submitted by the Jordanian Government, it was stated that "this definition is absolute and does not discriminate on the basis of sex or nationality [...] thus national and non-national workers enjoy the same rights and receive the same benefits provided by the law".
32. The Lithuanian Employment Contracts Act states in s. 2 that "labour relations shall be regulated with a view to observing the principle of equal rights irrespective of gender, race, nationality, citizenship, political convictions, etc.".
33. The Health Insurance Act of Croatia, 1997, contains no special provisions for non-national workers, on the understanding that the provisions are broad enough to cover both nationals and non-nationals.
34. Act No. 98-349 of 11 May 1998 concerning the entry and sojourn of foreigners in France (modifying Ordinance of 2 Nov. 1945).
35. Foreigners Act, 1946.
36. This hierarchy of legal provisions relating to migrant workers was one of the findings of the study undertaken by the ILO Interdepartmental Project on Migrant Workers from 1994-95. For complete references see footnote 26 above.
37. Pakistan stated in its report that "at present ratification of the Conventions is not envisaged [...] Pakistan is not manpower importing and therefore ratification would [...] be more applicable in worker importing countries". Grenada and Mexico provided similar interpretations.
38. The report from the Central African Republic deals exclusively with immigration, and not emigration.
39. The report from Malawi deals only with emigration procedures and the protection of Malawi nationals abroad.
40. Sri Lanka states that immigration measures are not relevant because "there is no inward migration for employment".
41. For example, the 1970 Constitution of Guyana stipulates in art. 31 that "it is the duty of the State to protect the just rights and interests of citizens abroad".
42. Sri Lanka has labour attachés stationed for this purpose in Kuwait, Lebanon, Oman, Saudi Arabia, Singapore, and the United Arab Emirates.
43. See overview above (paras. 76 and 77) on the growth of bilateral and multilateral agreements.
Updated by HK. Approved by RH. Last update: 26 January 2000.