87th Session
Geneva, June 1999
|
Report III (1B) |
|
|
Migrant Workers |
|
|
|
Section I. Ratification prospects, obstacles to ratification
and
legal difficulties in the application of the instruments
A. State of ratifications and ratification prospects
621. Having reached the end of this survey, and before presenting its conclusions, the Committee recalls that one of the reasons why the Governing Body requested it to carry out this survey was the possible need for revision of the instruments in view of the small number of ratifications of Conventions Nos. 97 and 143 in recent years. The extent to which the member States of the ILO have accepted the obligations laid down in these instruments provides a good starting point for examining the need for revision.
622. Convention No. 97 has garnered 41 ratifications, and Convention No. 143 only 18, making a total of 59 ratifications for both instruments; 12 member States(1) have ratified both instruments. Moreover, the rate of ratifications has slowed down considerably through the years. Since 1980, when the previous General Survey on migrant workers was published, seven new ratifications have been registered for Convention No. 97(2) and ten for Convention No. 143;(3) the most recent ratifications dating back to 1993 (Bosnia and Herzegovina). Of the two States(4) that had stated at the time of the first General Survey that they were considering the possibility of ratifying Convention No. 97, only Venezuela ratified it (in 1983); and of the six States(5) that were considering the possibility of ratifying Convention No. 143, only Italy (in 1981) and Sweden (in 1982) have ratified it to date.
1.
Cases in which ratification is envisaged
or being considered
623. A number of governments stated that ratification of one or both of the Conventions was envisaged, without however indicating a time frame.
624. The Government of Angola reported that there were no particular difficulties, it was only a question of timeliness. The Government of Argentina stated that the General Confederation of Labour and the Population and Human Resources Commission of the Chamber of Deputies considered that ratification of the Conventions was appropriate and necessary. The Government of Australia stated that a task force had examined both Conventions in 1993 and considered, in the light of paragraph 493 of the 1980 General Survey, that these two instruments could be ratified. However, the task force recommended that the annexes to Convention No. 97 and Part I of Convention No. 143 be excluded. The Government of Colombia pointed out that it had ratified the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and that it intended to examine once again the possibility of ratifying the ILO Conventions. The Government of Croatia stated that it had submitted the Conventions to the Economic and Social Committee at the request of certain trade unions. Guatemala pointed out that ratification prospects would depend on the results of certain measures that it intended to take both nationally and jointly with neighbouring States to give effect to the provisions of these Conventions in practice. The Government of India reported that it has recently confronted an increase in emigration flows, and the question of ratifying the Conventions was currently being studied. The Government of Lebanon affirmed that ratification would be envisaged only if there was an increase in the number of migrant workers. The Governments of Lithuania, Peru, Poland and Yemen reported that ratification of the Conventions was being considered. The Government of Sweden is again investigating the possibility of ratifying Convention No. 97 in the light of changes that have occurred in its legislation. The Government of the Syrian Arab Republic stated that it had begun to take concrete steps to ratify these Conventions. Lastly, the Government of Viet Nam stated that ratification of both Conventions would be considered in due course.
(a) Cases in which ratification is envisaged once
appropriate legislation has been adopted
625. The Government of South Africa stated that due consideration would be given to ratification of the Conventions once the draft legislation now under discussion had been adopted. The Council of Ministers of Albania asked for these two Conventions to be submitted to it, together with suggested amendments to its legislation. The Government of Saudi Arabia stated that ratification was contingent on the adoption of provisions to bring its legislation into conformity with the Conventions and that it could not give any indication of the time this would take. Brazil pointed out that Act No. 6815 of 19 August 1980 (governing the legal situation of foreigners in Brazil and establishing the National Immigration Council) was now before Congress and that a preliminary study was to be made of Convention No. 143 before submitting it to Congress. The Government of Chile was not envisaging ratification of the Conventions until a new migration Bill had been approved and until it had ratified the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which had been approved by the Chamber of Deputies and was now before the Senate. The Government of Finland stated that it would consider the possibility of ratifying Convention No. 143 once it had adopted the current amendments to its immigration legislation. The Government of Greece informed the Committee that the Higher Labour Council on International Labour Conventions had decided that the country would only consider the possibility of ratifying the Conventions once it had adapted its legislation to the new situation the country was facing, i.e. the huge flow of clandestine migrants. Lastly, the Government of Luxembourg stated that it would examine the possibility of ratifying Convention No. 143.
(b) Cases in which countries have requested
ILO technical assistance
626. The Government of the Republic of Korea stated
that it planned to seek ILO assistance, as it had for four fundamental ILO Conventions
in April 1998, in reviewing its legislation in the light of the Conventions.
The Government of Morocco considered that technical cooperation programmes
would afford it an opportunity to define, with ILO assistance, measures to be
taken with regard to legislation and practice to pave the way for ratifying
the Conventions. The Government of Tajikistan expressed the wish to
bring its legislation into conformity with the ILO Conventions and Recommendations
under review in this survey, with ILO assistance.
2.
Cases in which ratification is not envisaged
or not on the agenda
627. Several governments stated that they did not plan to ratify both Conventions: Austria, Benin, Cape Verde, China, Congo, Cote d'Ivoire, Czech Republic, Estonia, Ethiopia, Indonesia, Japan, Jordan, Kuwait, Mali, Mexico, Nepal, Oman, Pakistan, Panama, Papua New Guinea, Singapore, Sri Lanka, Switzerland, Suriname, Tunisia, Turkey, United Arab Emirates, United Kingdom (Bermuda, British Virgin Islands, Falkland Islands (Malvinas), St. Helena), United States; or the one that they had not yet ratified: Belgium, Cuba, Ecuador, Germany, Mauritius, New Zealand, Spain, United Kingdom; or one of the Conventions: Finland and Luxembourg (No. 97). The reasons cited by these governments will be elaborated upon in paragraphs 629-643 below.
628. The Governments of Bahrain and Barbados stated that they did not consider it appropriate to ratify these instruments. Ghana pointed out that the question of ratification of these Conventions had not been brought up by the social partners.
1. Issues relating to both Conventions Nos. 97 and 143
629. Some governments informed the Committee that their legislation on international migration was either non-existent, as in Cape Verde, or since they had never been faced with international migration on a large scale, at an embryonic stage, as in Azerbaijan, Belarus, China, Czech Republic, Romania and Tajikistan. Of these, some stated that they were in the process of drafting appropriate legislation. The Government of South Africa pointed out that its legislation on international migration for the most part dates back to the apartheid era and that it was in the process of drafting new legislation which would take account of the provisions of the instruments examined in this survey.
630. The United States invoked the complexity of its immigration legislation and practice as well as the fact that their legislation on this subject is constantly evolving: thus, for example, the Act on immigration and nationality has been amended each year since 1990 and a proposal for amendment has recently been submitted to Congress.
631. The Governments of Bulgaria, Central African Republic, Congo, Ethiopia, Guatemala, Mauritius, Papua New Guinea and Romania referred to their difficult economic situation and notably their high unemployment rates, in particular explaining that this situation prompted them to give preference to nationals over foreign labour.
632. The Governments of Guatemala, Lebanon, Mali and the United Arab Emirates mentioned the financial cost of implementing the instruments. Some of these countries referred to the increased workload which ratification would entail for their labour administrations, which were not sufficiently developed or lacked the resources to cope with it. Lastly, the Czech Republic cited the lack of the necessary infrastructure to apply the Conventions.
633. The Government of Argentina expressed certain misgivings as to the conformity of its legislation with all the provisions of the Conventions. Japan indicated that it would need to examine its legislation and practice to study their conformity with the provisions of Conventions Nos. 97 and 143. The following governments stated that their legislation was not in conformity with the provisions of the instruments under review: Cape Verde, China, Egypt, Ethiopia, Finland, Greece, Indonesia, Kuwait, Lebanon, Luxembourg, Panama, Saudi Arabia, Slovakia, Sri Lanka, Switzerland, Syrian Arab Republic, Tajikistan, Tunisia, United Arab Emirates, United Kingdom and Viet Nam.
634. Some governments cited the specificity of their labour market as an obstacle to ratification: the Government of Barbados explained that being an island, the country did not have borders with neighbouring countries and that there were a limited number of migrant workers in its territory.(6) The Governments of Bahrain and Luxembourg explained that a large proportion of their countries' labour was foreign (one-third and 55 per cent, respectively). The Government of Jordan referred to the specificity of its labour market, but did not state explicitly what it meant by this term. Lastly, the Government of Nepal pointed out that many of its own workers migrated abroad, while it had to import a huge number of professionals and skilled workers from abroad.
635. Some governments felt that ratification would not be appropriate, whether because they received few if any migrant workers (Cuba, Suriname); or because they considered, as did the Governments of Ethiopia, Mexico and Pakistan, that these instruments are primarily concerned with countries that have manpower shortages and need foreign labour, i.e. the countries of employment, and not the countries of origin of migrant workers; or because they did not agree with the approach adopted by the ILO. The Government of Singapore, for example, pointed out that the government intervention required by these instruments might not necessarily be the best approach, given the varied economic, social and political conditions prevailing in member States.
636. Some governments referred to institutional obstacles; for example, the Government of Tajikistan explained that the delay in bringing its legislation into conformity with the provisions of Conventions Nos. 97 and 143 and their ratification was to a large extent due to the economic instability the country was now experiencing. The Government of Switzerland pointed out that its reservations with regard to entering into multilateral commitments in the area of policy on foreigners were essentially dictated by the imperatives of direct democracy.
637. Finally, the Government of Oman explained that, only having become a Member of the ILO in 1994, it had not yet had the opportunity to examine in detail all the Conventions adopted by the Organization prior to that date, including those relating to migrant workers.
2. Issues relating to Convention No. 97
638. Some of the obstacles mentioned concern the 1949 instruments in particular. The Governments of Australia and Poland stated that if they ratified Convention No. 97 they would exclude Annexes I and II (Australia) and Annex I (Poland) because they felt they were inappropriate given the characteristics of international migration in their respective countries. The Government of Finland stated that Convention No. 97 was outdated in many respects, while the Governments of Luxembourg and San Marino considered that the annexes to the Convention were too detailed and hence impossible to apply. Finally, the Government of India invoked the problem of services provided to potential emigrants which in India are fee charging, contrary to Article 2 of the Convention.
3. Issues relating to Convention No. 143
639. The Government of Australia stated that, as migration in abusive conditions did not occur in this country, there were several areas dealt with in Part I (migrations in abusive conditions) of Convention No. 143 in which there was little relevant legislation. The Government of Spain pointed out that ratification of Convention No. 143 would require the establishment of costly infrastructures to combat illegal immigration effectively and that it preferred to channel these resources into the integration of immigrants in a regular situation. The Government of India perceived Part I of the Convention, which focuses, according to the Government, on the detection of abusive migrations and the existence of migrants illegally employed in its territory, as inappropriate to cover all migrant workers. The Government of Luxembourg mentioned the absence of specific legislation to combat migration in abusive conditions as one of the obstacles to ratification of Convention No. 143, or at least of Part I. The Government of Mexico stated that the obstacles to ratification lie in the difficulties the Mexican authorities face in systematically seeking to determine the extent of migration flows at its northern border as well as problems generated by the flow and trafficking of migrant workers entering Mexico illegally from the south. Another problem, according to the Government, is the absence of provisions protecting migrant workers in an irregular situation, which it considers as a serious omission which does not take into account the situation of emigration countries, such as Mexico. The Government of the Netherlands stated that although it had agreed with the objectives of Part I of Convention No. 143 (to combat international migration in abusive conditions in general and the illegal employment of foreign workers), the text of the Convention did not meet these aims in such a way as to permit it to ratify the Convention. The Government of the United Kingdom recalled that although in 1975 it had supported the underlying principles of Convention No. 143 and Recommendation No. 151, it had expressed certain reservations concerning some of their provisions, and that it still retained these reservations.
640. In the Committee's opinion, certain difficulties cited in paragraphs 629-639 above ought not to constitute fundamental obstacles to the ratification of Conventions Nos. 97 and/or 143. The Committee reminds governments therefore that the Office is at their disposition to furnish them, should they so wish, with technical consultation services in the field of international migration in order to, inter alia, assist them in overcoming the aforementioned difficulties.
C. Legal difficulties in the application of the instruments
641. Throughout this survey, the Committee has described the various problems and difficulties in the application of the instruments mentioned by governments in their reports. Where necessary or at the request of governments the Committee has endeavoured to clarify the scope or meaning of certain provisions of these instruments. The Committee sees this as part of its role of evaluating the application of international labour standards, as well as a way of helping governments to assess the extent to which their legislation and practice are compatible with the provisions in question and of finding means of overcoming these difficulties of application.
642. The Committee has drawn up a list of the provisions mentioned by governments in their reports as giving rise to difficulties and observes that nearly all of the provisions of the Conventions, annexes and Recommendations have been cited.(7) As these difficulties have already been reviewed in the relevant chapters of this survey, the Committee will merely recall here the provisions which appear to give rise to the most problems for member States.
643. In the case of Convention No. 97, the provisions most frequently cited by governments as a source of difficulties are Articles 6 (on equality of treatment between foreign workers and national workers) and 8 (maintenance of residence rights in the event of incapacity for work). In the case of Convention No. 143, Articles 8 (protection in the event of loss of employment), 10 (equality of opportunity and treatment) and 14(a) (right of migrant workers to geographical and occupational mobility) created the most difficulties for governments. These are discussed in further detail in the relevant chapters.
A.
International labour Conventions and national legislation
on migrant workers: Convergence and divergence(8)
644. The Committee would like to emphasize first of all that while it welcomes the number of reports received, it regrets nonetheless that many of them merely summarized the legislation in force on the subject of emigration and/or immigration and that very few governments or employers' or workers' organizations supplied information on the application in practice of the different provisions of the instruments under review in this General Survey.(9) A number of uncertainties therefore remain as to the manner in which States put into practice the provisions of the instruments.
645. Having reached the end of its review of the legislation, if not the practice, of member States, the Committee is nonetheless in a position to set out the points of convergence and divergence between national laws and regulations and international labour standards concerning migrant workers; it should of course be understood that, for those countries which have not ratified them, these standards create no obligations other than those laid down in article 19 of the ILO Constitution.
646. On the whole the ILO instruments seem to have fulfilled their role in orienting national laws and regulations in certain areas, including the organization of migration flows,(10) although the mechanisms for disseminating information between countries and to potential users could be strengthened to enable it to be disseminated as widely and as fully as possible; and the nature of the information that must be disseminated should perhaps be specified. In this respect, under Article 1 of Convention No. 97, the ILO also has a role to play in collecting and disseminating information on policies and legislation, movements of migrant workers and their living and working conditions, as well as on bilateral and multilateral migration agreements -- a role it already plays but which could benefit from being strengthened.
647. Generally speaking, countries tend to follow the provisions made by the instruments in broad terms, but less so when it comes to provisions calling for more specific commitments, in particular with regard to the protection of migrant workers. The points of divergence lie in key areas of the instruments: recruitment of migrant workers, rights afforded to migrant workers in an irregular situation, and the policy of promoting equality of opportunity and treatment.
648. The 1949 instruments saw the role of private recruitment agencies as secondary to that which was expected of the public authorities. The global context has changed, however, and there has now been a movement in the other direction in some regions, where the international mobility of workers is increasingly in the hands of private fee-charging recruitment agencies. "In some large labour- supplying countries they now comprise a major service industry, accounting for the recruitment and placement of 60 to 80 per cent of all temporary labour migrants leaving every year, and earn substantial revenues from the business."(11) Except where bilateral agreements on migration have been concluded between sending and receiving countries, the public services today have a minor and shrinking role in the recruitment and placement of migrant workers. Private employment agencies have proven very quick to spot shortages of certain categories of labour on the labour market, find workers to fill the gap and propose flexible solutions that are appropriate given the growing complexity of economies, even managing to overcome the information gaps and institutional barriers that isolate national labour markets from one another. The commercialization of placement has negative aspects, however: (a) advertising, distributing various forms of misleading propaganda, soliciting applications and demanding exorbitant fees (well above the maximum allowed by regulations or the actual cost of recruitment) for non-existent job offers; (b) withholding information or giving false information on the nature of jobs and conditions of employment; and (c) selecting applicants not on the basis of job qualifications but according to the amount they are willing to pay to get the job. Unskilled workers without any particular technical qualifications are particularly vulnerable to malpractices by certain private placement agents organizing international labour migration. Many countries have therefore regulated the activity of private agencies recruiting migrant workers much more closely than other commercial business and have imposed stiff sanctions against certain offences, while others prefer to rely on self-regulation of the industry, thus substantially reducing the administrative workload of investigating and monitoring the agencies. That fraud and malpractices still persist in this area shows how difficult it is to rely on regulation as a means of mitigating the impact of market forces on migratory processes; more importantly, it raises the question of the consequences of the growth of private recruitment agencies to the detriment of public services.
649. The ILO recognized the need for States to ensure that the benefits of private employment agencies do not encroach upon or diminish the rights of workers in the adoption in June 1997 by the International Labour Conference of the Private Employment Agencies Convention (No. 181), which revised the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96). Article 8 of Convention No. 181 provides for the protection of migrant workers recruited or placed by private employment agencies. Article 7 reaffirms the principle that "private employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers" but allows exceptions in respect of certain categories of workers and specified types of services provided by private employment agencies. It should equally be recalled that in 1996, that is one year earlier, the International Labour Conference adopted the Recruitment and Placement of Seafarers Convention, 1996 (No. 179), which states in Article 4 that States must "ensure that no fees or other charges for recruitment or for providing employment to seafarers are borne directly or indirectly, in whole or in part, by the seafarer" but specifies that "costs of the national statutory medical examination, certificates, a personal travel document and the national seafarer's book shall not be deemed to be 'fees or other charges for recruitment'". In this connection, the Committee considers that a clearer distinction than that made in the 1949 instruments should be drawn between the free services which should be provided to all would-be migrants and any payment for recruitment and placement services which result in the migrant effectively performing a job that corresponds to the offer made.
2. Rights afforded to migrant workers in an irregular situation
650. The analysis of national law and practice reveals a degree of discrepancy between certain principles laid down in basic texts or ratified Conventions and the measures actually taken and applied to control migration flows with the aim of reducing or even stopping them altogether. Moreover, the protection of fundamental rights of migrant workers in an irregular situation is illusory if there is no precise definition of the basic human rights of all migrant workers as provided by Convention No. 143, and if difficulties bar their access to appeal procedures.(12) The lack of a precise definition of fundamental human rights of all migrant workers (notably those in an irregular situation) which member States must respect -- in terms of Article 1 of Convention No. 143 -- represents an important obstacle inasmuch as many countries are concerned that the rights thus recognized for irregular migrants could be widely interpreted by the Committee. Concerning the refusal of many countries to recognize the right of migrant workers in an irregular situation to entitlements arising out of past employment as regards remuneration, but especially as regards social security, it should once again be emphasized that the enjoyment of these rights, linked to having actually undertaken a job, does not forbid the State concerned from proceeding to deport an irregular worker and that the equality of treatment prescribed in the Convention is to be interpreted as requiring that these workers enjoy equality of treatment not with nationals, but with migrants who are lawfully within the national territory and legally employed.
3. Ensuring equality of opportunity and treatment
651. Although the need to ensure equality of treatment between migrant workers and national workers as regards conditions of work, social security and access to social services does not raise any difficulties in principle, the same cannot be said for the promotion of equality of opportunity and treatment in the areas covered by Convention No. 143 and Recommendation No. 151 (employment and occupation, social security, trade union rights, individual and collective freedoms) for the migrant worker as well as members of his or her family. The provisions of these instruments offer a higher degree of protection than that afforded by national legislation. Except in countries of long-term immigration where their status tends to converge and eventually merge with that of citizens, a migrant is and remains a foreigner. It is clear from government reports that in countries that have a policy of accepting migrants for a fixed period of time and for a specific purpose, promotion of equality of opportunity and treatment is not usually envisaged: a migrant worker taken on for his or her ability to carry out a specified job will leave again at the end of the contract or renew it for a further fixed period, without there being any question of equality of opportunity in the context of free choice of employment, which is the prerequisite for such equality. In countries where migration flows are long established and have led to permanent settlement of migrants, promotion of equality of opportunity and treatment comes into play as a means of facilitating the integration or assimilation of migrants.
652. Another aspect of equality of opportunity and treatment -- and one that had not arisen when the present standards were adopted -- is the impact of regional groupings (the European Union, MERCOSUR and others) on this question. The Committee considers that the fact that the countries concerned often provide better treatment to workers from other countries in the regional grouping, than to workers from outside the grouping, raises difficult questions of principle which need to be addressed.
653. The Committee noted in Chapter 4 that the methods by which States carry out their obligation, under Article 3 of Convention No. 143, to "suppress clandestine movements of migrants for employment and illegal employment of migrants", is not covered by the Convention. It notes in practice that the measures taken may in some circumstances constitute violations of the fundamental human rights of workers. This question should be considered in the framework of a Conference discussion on migration for employment.
654. The Committee regrets the lack of information provided on the practical application of sanctions.(13) This is of concern because such information as indicated in the reports suggests that, in practice, sanctions are taken against irregular-status migrant workers themselves, although Convention No. 143 does not address this issue. The absence of information about the sanctions required of governments pursuant to Article 6 of Convention No. 143 in respect of the illegal employment of migrant workers, the organization of movements of migrants for employment involving abusive conditions, and the knowing assistance to such movements whether for profit or otherwise, would suggest that this Article is not properly applied in practice. The Committee would urge governments to reconsider this problem in light of their obligations.
B. What standards for migration?
655. The Committee recalls(14) that Conventions Nos. 97 and 143, which are the subject of this General Survey, are among those for which the Governing Body requested additional information from constituents to enable it to clarify the possible need for revision of these instruments and that it accordingly decided "to request the Committee of Experts to undertake a General Survey". In this regard, the Committee remarks that the questionnaire sent to member States, in accordance with article 19, did not directly pose the question of the appropriateness (or not) of revising Conventions Nos. 97 and 143. This survey was on opportunity for the Committee to examine all the reports submitted by States which have ratified one and/or both Conventions Nos. 97 and 143, under article 22 of the ILO Constitution, with a view to possible normative action. Through this examination it has clearly been seen that the ratified instruments are not fully applied and, above all, a number of difficulties of application reveal misunderstandings of the obligations enunciated by certain provisions of the Conventions.
656. Throughout this survey, it has been remarked that the context in which the international labour standards examined in this survey were adopted is different from that in which migration flows occur today, as can be seen from the following examples.
1. Declining role of state leadership in the world of work
657. The ILO instruments were drafted with state-organized migration in mind, rather than spontaneous migration. For both economic and political reasons, the State no longer plays such a dominant role as it did over 45 years ago in the movement of workers across borders. Faced with the increasing diversity and complexity of international migration compared to previous decades, many countries of emigration are unable to provide efficient employment services free of charge, with the result that private recruitment and placement agencies for migrant workers have moved from a secondary role after the public services to an essential one. This trend has also affected a number of major countries of employment, in particular in Western Europe, which, after hesitating to abandon the monopoly of public employment services in the recruitment and placement of foreign labour, are now giving serious consideration to the advantages offered by the incontestable flexibility and mobility of private agents.
2. Feminization of migration for employment
658. When Conventions Nos. 97 and 143 were adopted, female migrants were mostly to be found in the context of family reunification. Times have changed, and today more and more women migrate not to join their partner, but in search of employment in places where they will be better paid than in their home country. It is estimated that female migrants make up almost half of migrant workers in the world today.(15) This "feminization" is sometimes characterized by an over-representation of women migrants in extremely vulnerable positions, in so far as these positions are characterized by a strong bond of subordination between the employer and the employee and, above all, because those sectors are generally excluded from the scope of legal protection on employment, notably from the Labour Code. It can be asked whether new measures ought to be taken by the ILO to ensure protection for this category of workers and, equally, if any revision of the treatment of artistes and members of the liberal professions in the ILO instruments is necessary, particularly in light of the extent of the phenomenon of women migrant workers being recruited for such employment only to find themselves working in the sex sector.
3. Increase
in temporary migration in place
of migration for permanent settlement
659. While the 1949 and 1975 instruments were originally conceived with a view to covering migration for settlement (immediate or gradual) today a rise in migration for short-term employment can be clearly seen. In their reports, member States emphasized this change, as well as the repercussions this has for application of the most important provisions of Conventions Nos. 97 and 143. In light of these changes, it can be asked whether it is appropriate to examine the extent to which some provisions of the instruments can be applied only to migrant workers with permanent residence status and to the protection to be given to temporary migrant workers.
4. Increase in illegal migration
660. Since 1975, the date of the adoption of Convention No. 143, which represents the first attempt by the international community to address problems relating to clandestine migration and illegal employment of migrants, which had become particularly acute during the early 1970s, clandestine migration and illegal employment has taken such proportions that countries of immigration -- themselves confronted with rising unemployment, poverty and inequality, and finding it necessary to create a balance between the legitimate claims of their nationals who count upon national preference, and the rights of foreigners -- have chosen to put the accent upon controlling migration flows.
661. This said, the Committee is conscious that for countries facing economic transition and poverty, environmental degradation and massive unemployment, etc., emigration is often a natural result of the search of their citizens for employment and a better life. Emigration may not be the answer in the search for development, but it is a natural economic phenomenon that will continue as long as the reasons given above persist. The Committee therefore considers it vital that measures to suppress illegal migration be supplemented by the kind of measures contemplated in these instruments, to facilitate migration whenever appropriate, and to protect migrant workers in their quest for a better life. These measures will benefit from the kind of dialogue between countries of emigration and immigration that can be observed when such States become partners in controlling the flow of migration, and learn to adapt their policies to each other's needs.
5. Growth of certain means of transport
662. Some of the provisions of the instruments are simply out of date: for example, Article 5 of Convention No. 97, which requires migrant workers and the members of their families to undergo two medical examinations, both at the time of departure and on arrival, does not take account of changes in transportation and the increase in air travel.
663. In addition to the lacunae in Conventions Nos. 97 and 143 due to the evolution of the context in which they were adopted, the process of comparing national legislation with international labour standards relating to migrant workers has made it clear other lacunae exists in these instruments. For example, they do not deal with the elaboration and establishment of a national migration policy, in consultation with employers' and workers' organizations, within the framework of national policy; questions relating to migrant workers' contracts, which are of vital importance in terms of protecting workers, are not addressed in the existing instruments;(16) the same can be said of questions touching upon certain aspects of the payment of migrant workers' wages.(17)
664. Despite these lacunae and the changing nature of the context in which migration takes place since the adoption of Conventions Nos. 97 and 143, the Committee is convinced that the principles enshrined in these instruments are still valid today: control of migratory flows, cooperation between States, protection of migrants for employment and equality between nationals and migrants with regard to conditions of work. It notes however that many member States still hesitate to ratify instruments that touch on what is often seen as a sensitive subject with considerable political, socio-cultural and even economic ramifications.
665. According to predictions, international migration will continue to increase; it is unacceptable for millions of workers to remain excluded from international protection. The fact has to be faced, however, that neither of these Conventions has obtained many ratifications, while the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted in 1990, has not managed to achieve the 20 ratifications needed to enter into force. Many countries, including those most affected by international migration,(18) have some difficulty in ratifying very detailed instruments in this area which attempt to regulate every aspect of the migration process and treatment of migrant workers. The Committee has also observed that member States whose legislation and practice are in conformity with the essential provisions of one or both instruments are often unable to ratify it or accept it officially because of comparatively minor divergences between its precise wording and their own legislation, with the result that a large share of migrant workers are denied any international protection.
666. At this stage in its deliberations, the Committee judges that two options are open to it. The first consists of recommending to the Governing Body to maintain the status quo, as experience appears to have shown that in terms of international migration, States are reluctant to ratify any international instrument, regardless of how loose and flexible they are. It can also be stated that the difficulties in application of Conventions Nos. 97 and 143 mentioned in paragraphs 641-643 would persist even if a new instrument was adopted or if the existing ones were revised, as these difficulties relate to the most important underlying principles of the instruments, namely equality of treatment between nationals and foreigners, maintenance of residency rights in case of incapacity to work, protection in case of redundancy and geographical and occupational mobility. This status quo could equally be accompanied by a vigorous promotion campaign, notably in light of the findings of the present survey, in relation to those provisions which have been judged inapplicable by certain States but which in fact appear to stem from a misunderstanding. A variant on this approach would be to elaborate one or several additional protocols(19) designed to bridge the gaps in the instruments mentioned above.
667. The second option consists of envisaging a revision of Conventions Nos. 97 and 143. Without wishing to anticipate the final decision to be adopted by the Governing Body, the Committee suggests that the instruments be entirely revised in order to bring them up to date and, in so far as is technically possible, to merge them into a single Convention by the elaboration of a new Convention, designed to bridge the gaps in the current instruments. It would be the for Governing Body and the International Labour Conference to decide whether a framework Convention(20) or a single instrument treating the situation of migrant workers in more detail would have the better chance of being ratified and applied in such a way as to ensure the greatest level of protection for the greatest number of migrants possible. By emphasizing universally recognized principles, accompanied by provisions which would enable governments and the social partners to work together to achieve objectives which are adapted to national conditions, it may be possible to obtain wide ratification of the instrument and thus to ensure that the vast majority of migrant workers enjoy an adequate level of protection at work.
668. Whatever the means adopted by the ILO, the Committee considers that much more needs to be done at the international level to address the situation of migrant workers. This is a growing phenomenon in a globalizing economy, and is likely to continue to grow as economies integrate -- and sometimes as they disintegrate. It is, as has been seen recently in the Asian economic crisis, very susceptible to disruption of all types, and the situation of migrant workers tends to deteriorate in times of economic difficulty. This kind of economic crisis generally leads on the one hand to slowing or halting migration into once-flourishing economies, at the same time as it causes an equal reaction of workers desiring to emigrate to countries where the economy is stronger and can absorb an over-supply of labour.
669. Thus there is an urgent need for better mechanisms at both the national and international levels to address this phenomenon. It is up to the International Labour Organization to provide the international framework for this effort, and up to the ILO in concert with its constituents to put into place the other policies and measures that will lead to a better and happier life for migrant workers.
1. Bosnia and Herzegovina, Burkina Faso, Cameroon, Cyprus, Italy, Kenya, Norway, Portugal, Slovenia, The former Yugoslav Republic of Macedonia, Venezuela and Yugoslavia (referring to the former Socialist Federal Republic of Yugoslavia, since, according to the decisions taken by the Governing Body based on the relevant United Nations resolutions, no State has been recognized as continuing automatically the membership of this State).
2. Belize, Bosnia and Herzegovina, Dominica, Saint Lucia, Slovenia, The former Yugoslav Republic of Macedonia and Venezuela.
3. Benin, Bosnia and Herzegovina, Italy, San Marino, Slovenia, Sweden, The former Yugoslav Republic of Macedonia, Togo, Venezuela and Yugoslavia (referring to the former Socialist Federal Republic of Yugoslavia, since, according to the decisions taken by the Governing Body based on the relevant United Nations resolutions, no State has been recognized as continuing automatically the membership of this State).
4. Argentina and Venezuela.
5. Finland, Italy, Norway, Spain, Sweden and Tunisia.
6. In this connection, the Committee notes that, in its comments appended to the Government's report, the Barbados Workers' Union states that there has been a recent increase in migrant labour, particularly in construction, and that the Government should ratify these Conventions, thereby offering protection to these workers.
7. Convention No. 97: Arts. 2, 3(1), 4, 5(a), 6(1)(a), 6(1)(b), 6(1)(c), 6(1)(d), 7(2), 8(1), 10; Annex I: Arts. 4, 5(1), 6, 7(1); Annex II: Arts. 3(5), 5, 7, 9, 10, 11; Recommendation No. 86: Paras. 5(2), 10(a), 14(3), 15(1), 15(2), 16(1), 17, 18(1), 21(1); Convention No. 143: Arts. 2(1), 3(a), 4, 5, 6(1), 7, 8(1), 8(2), 9(1), 9(3), 9(4), 10, 11(1), 11(2), 12(a), 12(d), 12(g), 13(1), 13(2), 14(a), 14(b), 15; Recommendation No. 151: Paras. 2(f), 8(3), 13(1), 15, 18, 30, 31, 34(1)(b), 34(1)(c)(i).
8. This title is taken from a report prepared by the Office under the Interdepartmental Project on Migrant Workers, 1994-95 (Picard, op. cit., pp. 38-43).
9. For example: court decisions having a bearing on the application of Conventions Nos. 97 and 143, observations of employers' and workers' organizations, activity reports of national authorities responsible for enforcing national legislation and labour inspections, and statistics on the application of the Conventions.
10. As was seen above, government-sponsored arrangements for group transfer today have taken on a limited role.
11. Protecting the most vulnerable of today's workers, op. cit., para. 102.
12. For irregular migrant workers, apart from the difficulties inherent in being a foreigner (language barrier, ignorance of procedures, etc.), a migrant's irregular situation often constitutes a major obstacle deterring him or her from appealing to the judicial authorities, for fear of bringing his or her situation to the attention of the authorities, with the ensuing risk of expulsion.
13. See paras. 354-359.
14. See paras. 1-2 of this survey.
15. For source see footnote 22 in the Introduction.
16. Such as the precise information which should appear in an employment contract or other written document delivered to a migrant worker prior to departure (name of the company or employer, nature of the work, duration of employment, wages, holidays, etc.).
17. Some aspects of wage protection are dealt with in the Protection of Wages Convention, 1949 (No. 95), whose provisions have been cited before the supervisory bodies of the ILO in cases of expulsion of migrant workers for whom no final settlement of wages had been made (Iraq, Libyan Arab Jamahiriya, Mauritania). Nevertheless, other aspects should be examined in order to adapt protection to the migrant worker's situation (payment intervals, means of payment, deductions from wages for payment of services rendered by private placement agencies, appeals, etc.).
18. If the majority of the provisions of Conventions Nos. 97 and 143 ought to be put in place by countries of employment, it should be noted that in practice, the Conventions have essentially been ratified by countries of emigration. It should also be noted that except for Malaysia (Sabah) and New Zealand, no Asian country has ratified these instruments. As the Committee has emphasized throughout this survey, it should be recalled that these instruments -- contrary to the interpretation given by certain emigration countries -- enunciates obligations for both sending and receiving countries.
19. A protocol is linked to the Convention to which it is annexed, and a State which has not ratified the Convention may not ratify the said protocol.
20. A framework Convention sets objectives and lays down the basic principles to be observed in attaining them. Because its provisions are flexible as to the attainment of its objectives, due account can be taken of the situation prevailing in each country. Under these Conventions, ratifying States undertake to achieve specific objectives which are sometimes difficult to attain through a programme of continuous action. One example of this type of Convention is the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
Updated by HK. Approved by RH. Last update: 26 January 2000.