Then Impact of Globalisation on Migrant Workers. Rights under International Law

Then Impact of Globalisation on Migrant Workers Rights under International Law 1. The term "migrant worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national. 1 2. Migrant workers are particularly vulnerable to human rights violations. In 2005, the number of people who have settled down in a country other than their own was estimated at around 191 millions (UN-DESA 2006). This figure represents 3% of the world s population and has more than doubled since 1975 2. Yet despite repeated affirmations of the special vulnerabilities faced by migrants 3, States continue to approach the issue reluctantly to avoid being locked in to specific legal obligations. 3. The core UN human rights treaties concerning migrants are currently the ICERA (1965), the ICCPR (1966), the ICESCR (1966), the CEDAW (1979), the CAT (1984), the CRC (1989) and the ICRMW (1990). The ICRMW specifically relates to the protection of migrant workers. 4. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) is an international treaty that specifically attempts to ensure migrant workers have access to a broad range of human rights. The convention sets a worldwide standard in terms of migrants access to fundamental human rights. In light of recent evidence regarding increasing human rights abuses in relation to migration such a convention is a vital instrument to ensure respect for migrants human rights. The potential added value of the ICRMW is that the Convention covers categories of migrant workers who are not specifically addressed in the international conventions and treaties explored below. However the ratification record of this international treaty is low in comparison with other UN Conventions 4. After nineteen years only 41 states ratified the Convention by June 2009 5. By contrast, 125 states have ratified the other six core UN human rights treaties mentioned above 6. Furthermore, no major destination country has ratified as it if often believed that ratification implies a loss of national sovereignty on admission policies, and that ratification would oblige states to grant large family reunification possibilities for migrants 7. 5. The International Convention on Civil and Political Rights (ICCPR) focuses on the issue of the detention of migrants. It particularly examines the duration and conditions 1 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Adopted by the General Assembly Resolution 45/158 of 18 December 1990, Art 2(1). 2 Cholewinski, Ryszard, Paul De Guchteneire and Antoine Pecoud, Migration and Human Rights: The United Nations Convention on Migrant Workers Rights, (UNESCO Publishing 2009). 3 Gallagher, Anne T. The International Law of Human Trafficking, (Cambridge University Press 2010) 4 For example, the CEDAW was adopted in 1979 and entered into force two years later; today, 186 countries are party to the CEDAW. Similarly, the CRC was adopted in 1989, entered into force in 1990 and has been ratified by 193 states (Cholewinski et al, 2009). 5 Above n 2. 6 ICMC, 2006, Strengthening Protection of Migrant Workers and their Families with International Human Rights Treaties; A Do-It Yourself Kit, Geneva, Switzerland, ICMC, p.22. 7

experienced by migrants in their deportation. Excessive force, ill-treatment and harassment are a common experience of migrants in the deportation process. 8 6. The International Covenant on Economic, Social and Cultural Rights (CESCR) focuses on terms of employment and a call for States to provide for sanctions for employers who fail to observe the terms of employment and safety regulations and many other breaches in areas of compensation and the confiscation of identity documents. The treaty also recommends that states control whether or not employers treat migrant workers in conformity with ILO standards. 9 7. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) considers the vulnerability of women to traffickers in poorer economic countries and recommends women s economic empowerment as a solution. It also specifically mentions the right of migrant women to have their family join them (Article 15). 10 8. The Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) focuses on protecting migrant workers against Torture, which is regarded to be the excessive use of force and discriminatory practices by the police when dealing with foreigners. The text does specifically refer to migrant workers, but is applicable to undocumented migrants to be deported. 11 9. The Convention on the Rights of The Child (CRC) insists on the need to provide protection and assistance to the most vulnerable groups of young children and to those who are at risk of discrimination, including children from migrant families. 12 10. The International Labor Organization (ILO) has set up various Conventions designed to protect the rights of migrant workers. The two key instruments to consider are ILO Convention No. 97 ILO Convention No. 143 11. The 1949 Migration for Employment Convention (the ILO Convention No. 97 charges State parties with the responsibility of providing an adequate and free service of providing correct information to assist migrant workers 13 and to take all appropriate steps against misleading propaganda concerning immigration and emigration 14. 12. ILO Convention No. 143 concerns Migrations in Abusive Conditions and the promotion of Equality of Opportunity and Treatment of Migrant Workers. The provisions of the Convention are to extend to all migrant workers 15, which is the first provisions to address illegal migration with human rights language. 8 Slinckx, Isabelle, Migrants Rights in UN human rights conventions, (UNESCO Publishing 2009). 9 10 11 12 13 The 1949 Migration for Employment Convention (the ILO Convention No. 97, Art 2. 14 Ibid, Art. 3(1). 15 Ibid, Art 1.

Outline the European Council s determinations on Migrant Workers 1. Six EU Member States (France, Germany, Italy, Poland, Spain, the United Kingdom and Norway) have ratified the seven core international human-rights treaties currently in operation. However, the number of treaties and instruments specifically aimed at migrants are less favourably adopted, particularly the ILO Conventions Nos. 97 and 142 and the ICMRW (mentioned above) when international an regional instruments specifically aimed at migrants, in particular ILO Conventions Nos. 97 and 143 and the ECMW are taken into consideration: while some states, such as Italy and Norway, have indeed ratified all three, both Germany and the United Kingdom are party only to ILO Convention No. 97 (which, crucially, does not deal with irregular migrants), and Poland, is not bound by any of these migrant-specific agreements. 16 2. MacDonald and Cholewinski report that neither Poland nor Norway have historically had much experience with the regulation of immigration, and thus lack the instructional framework and infrastructure that the [ICMRW] Convention presupposes. Even in an important destination country such as Germany, political debates on a comprehensive migration policy are relatively new, as immigration was, until recently, thought of as temporary. In France, by contrast, administrative experience with migration is well developed and cannot be considered as a major obstacle. 17 3. The Tampere Conclusions of 1999 aimed at establishing a common asylum and migration policy among the Member States of the Union. Heading III, entitled Fair Treatment of Third Country Nationals states: 18. The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia. 21. The legal status of third country nationals should be approximated to that of Member States nationals. A person, who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens; e.g. the right to reside, receive education, and work as an employee or selfemployed person, as well as the principle of non-discrimination vis-à-vis the citizens of the State of residence. The European Council endorses the objective that long-term legally resident third country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident. However, MacDonald and Cholewinski argue that in general, progress on the elaboration of the common migration policy has been neither as swift nor as comprehensive as that on the related issue of asylum and there are considerable grounds for doubt over the extent to 16 Macdonald, Euan, and Ryszard Cholewinski, The ICRMW and the European Union, (UNESCO Publishing 2009). 17 Above n 2.

which they can be viewed as contributing to a common migration policy even in those limited areas that they do cover. 18 4. The issue concerning the ratification of the ICRMW in European states is highlighted by the argument that national laws are incompatible with the Convention s provisions. For example, in France the term group right contained in Article 31, obliging states to ensure respect for the cultural identity of migrants is incompatible with the French tradition of the indivisibility of the nation. France has, however, faced this issue before, inserting an interpretative declaration to its ratification of the ICCPR stating that [i]n the light of article 2 of the Constitution of the French Republic, the French Government declares that article 27 [which protects the rights of persons belonging to ethnic, religious or linguistic minorities] is not applicable so far as the Republic is concerned. Hence MacDonald and Cholewinski there is nothing in the ICRMW that would prevent it from doing the same again. 19 6. In the case of Commission v. Council [1971] ECR 263 the Court held that the decision by the EC to implement a common transport policy meant that Member States no longer had the right to unilaterally conclude other agreements with third parties on that issue. The French Government has relied on this view in two written responses to parliamentary questions on the issue: the first in a response to a question put by the Socialist Party Deputy M. Lignère-Cassou on 1 November 2005 and the second in response to a question put by the Green Party Senator A. Boumediene-Thiery on 10 November 2005. 20 5. There is a general political belief held by EU states no longer have the power to undertake unilateral commitments with third countries in the field of immigration. This was the view very clearly expressed by the French Minister for Foreign Affairs, Philippe Douste-Blazy, given on 30 August 2005, is available, in his response to the CNCDH Avis calling for ratification of the ICRMW. 21 This makes it particularly difficult for the establishment and implementation of the Convention as the treaty deals with different sectors of states responsibilities such as access to health services and education systems as ratification requires implied coordinated efforts by governments. 22 6. In 1997, an amendment to the Treaty of Amsterdam to create Title was created in the form of Title IV of Part III of the Treaty Establishing the European Communities (EC Treaty). This amendment transferred asylum and immigration issues to the Community. However, the UK in has chosen not to participate in any of the Community measures in this field. 23 In general, however, the Community action in this field has focused less on the actual rights of migrants and more on the regulation of those seeking to enter. Macdonald and Cholewinski (2007, p.74) highlight that what is perhaps most striking is that there is relatively little material with which direct comparisons between the provisions of the ICRMW and Community law, of the type carried out in the last two paragraphs, can be made. 18 Macdonald, Euan, and Ryszard Cholewinski, The Migrant Workers Convention in Europe: Obstacles to the Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: EU/EEA Perspectives, (UNESCO Publishing 2007). 19 20 Above n18. 21 22 Above n2. 23

7. Although the EU has demonstrated their strong commitment to human rights 24 it is yet to action a common migration policy which is fundamental in considering the rights of migrant workers today. The focus instead has been on regulating the entry and movement of third-country nationals to the union, through, for example, the EU/Schengen visa 25 the development of an EU Borders Code 26. Macdonald and Cholewinski (2007) argue that the practical relegation of rights discourse in this field to a status below that of the technical regulation of labour markets or national security will almost inevitably lead to policies and laws that conflict with the provisions laid down in the ICRMW. This outcome is evident in the recent issue of equal treatment between migrants and nationals and on the treatment of irregular migrants. 8. The Charter of Fundamental Rights of the European Union, which is not yet a legally binding force because of the rejection in the 2005 French and Dutch referenda of the EU Constitutional Treaty makes a threefold distinction, between Union citizens, regular migrants, and irregular migrants. A positive step is the provisions concerning health care whereby: Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. This provision of the Charter demonstrates similarities with ICRMW in that: Article 28 of the ICRMW 27. The Charter, however, makes the limitation of access to all social security rights to everyone residing and moving legally within the European Union, that is, to regular migrants only; this stands in contrast to Article 27 of the ICRMW, which provides for to social security rights for all migrant workers and members of their families.195 24 See for example Article 6(2) of the Treaty on the European Union which states that the ECHR is to be considered part of the EU/EC acquis 25 Council Regulation 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2001 L 81/1, as amended). 26 Regulation 562/2006/EC of the European Parliament and of the Council of 15 March 2006 establishing a Community Code governing the movement of persons across borders (Schengen Borders Code), OJ 2006 L 105/1. 27 Article 28 states Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.

Outline the US s determinations on Migrant Workers 1. The United States accepts the largest number of migrants in the world, with an average of about 1.1 million permanent residence permits issued per year between 2005 and 2008. Between 1989 and1994, 2.7 million migrants were regularized under the 1986 Immigration Reform and Control Act (IRCA) (United Nations, 2004). 28 2. It has been argued that the provisions in the ICMRW that apply to undocumented migrants are already covered by international treaties that the United States has ratified and thus there is an overlapping of the Migrant Worker Convention with the United States existing obligations (Lyon 2010, p.427). For example, the provisions in the International Covenant of ICCPR and the covenant prohibiting racial discrimination (CERD) that the U.S. has signed significantly overlap with the ICMRW. 29 Other examples of overlaps between the ICMRW and US ratified treaties are explored below. 3. The issue of illegal immigration in the United States is one of great concern. Approximately $1.7 billion was spent on border-crossing prevention in 2002. 30 Border control is a high priority of the United States government that one of the few significant pieces of immigration- related legislation to pass during the George Bush administration was the Secure Fence Act of 2006. The ICMRW does not specifically mention border control, but clearly anticipates that it will be used as an enforcement tool. 31 4. The issue of protecting family reunification is reflected in the ICMRW 32. With regard to workers who are lawful permanent residents, the United States also has created provisions permitting LPR status immigrants to undertake temporary visits abroad without running any risk of jeopardizing their status 33. However, Lyon points out that with regard to temporary entrants, however, no such provision for temporary travel is made, creating conflict between Article 38 and U.S. law. 34 5. It is estimated that there are around 12 million undocumented residents in the United States. U.S. immigration laws prevent the Executive from enforcing existing tight visa restrictions as such an action would threaten a large portion of the American business sector. Thus, in the short term, there is no enforcement solution to the problem. Furthermore the U.S. has experienced failed efforts on the part of the Republican administration to bring about immigration reform and influence the Supreme Court in 28 United Nations, Department of Economic and Social Affairs, Population Division (2011), International Migration Report 2009: A Global Assessment (United Nations, ST/ESA/SER.A/316). 29 The provisions that overlap are in supra note 134, as well as the U.N. Migrant Worker Convention, supra note 6, art. 39 (corresponding to ICCPR art. 12); id. art. 40 (corresponding to ICCPR art. 22 and CERD art. 5(e)); id. art. 42 (corresponding to ICCPR art. 25 and CERD art. 5(c)); id. art. 43 (corresponding to CERD art. 5(e)); id. art. 44 (corresponding to ICCPR art. 23). ICCPR, supra note 41; CERD, supra note 41. (Lyon 2010, p.426). 30 Lyon, Beth, The Unsigned United Nations Migrant Worker Rights Convention: an overlooked opportunity to change the Brown Collar migration paradigm, International Law and Politics, 2010. 31 Article 68 directs States Parties to collaborate on measures to sanction illegal or clandestine movements, 168 stating that measures to be taken to this end...shall include... measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families. 32 Article 38 requires States of employment to make every effort to authorize [legally present] migrant workers and [family members] to be temporarily absent without effect upon their authorization to stay or to work.. 33 Above n 30. 34

favor of unauthorized immigrant worker rights demonstrate a significant alignment of interests between the left and right political establishments in favor of softening public opinion on migrant workers. 35 6. The United States ratified the Economic and Social Council promulgated The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime in 2005. This instrument involves significantly different goals than the Migrant Worker Convention, although the populations it is intended to assist, and in some cases intended to punish, certainly overlap. 7. An incentive for the U.S. to ratify the ICMRW is the increase of U.S. influence upon other countries of migration origin. It has also bee stated that ratifying the Convention will also improve the relationship between the U.S. and Mexico. 36 Lyon (2010) explains this is because the U.S. has ratified only one other treaty 37 with an exclusive focus on foreign nationals. Therefore, if the United States were to move forward in the ratification process in advance of other countries of employment, it would make a positive influential impact with countries of origin. 8. Similarly, taking the lead in ratifying or simply signing the Convention would be noted by developed countries that are beginning to consider ratification and would give the United States, to a far greater extent than have past ratifications, a human rights leadership moment that this country needs as it attempts to convince its industrialized world allies to support its foreign policy priorities. 38 9. Evidently, human rights treaties currently binding on the United States already contain overlapping language. A survey of the United States country reports to those bodies as well as the relevant Concluding Observations does not reveal any problems raised by overlapping protections, wording differences, or conflicting interpretations. 39 Nor has the concern about overlapping language been raised against ratification of the Migrant Worker Convention in the non-ratifying countries that recently published reports on their assessments of the treaty. Thus the Convention does not challenge U.S. immigration priorities, and ratifying the ICMRW Convention would pose no threat to U.S. sovereignty. 35 Above n 30. 36 37 That treaty is the Refugee Protocol but refugee protection and migrant worker protection are very different from one another. 38 Above n 30. 39

Briefly analyse how globalisation and people trafficking affects migrant workers based on existing academic literature 1. As observed above, the ratification of the ICRMW by many States, particularly major destination countries, has been an internationally contested issue. The reluctance of most countries highlights a fundamental problem as migrants labour is increasingly essential in the world economy, and as reports of human rights abuses relating to migrant workers are increasing. It may also be argued that the non-economic aspect of migration especially the human and labour rights of migrants remains a neglected dimension of globalisation (Cholewinski et al, 2009) 40. Furthermore, the fact that International migration has become an intrinsic feature of globalization raises the issue of the protection of migrant workers and their families. 2. The relationship between globalization and human trafficking, including trafficking of migrant workers, is also a controversial issue within academic literature, as Jones et al (2007) observe; although human trafficking is not a new problem, the dynamics of globalization are fueling its growth. 41 Rahman (2011) argues that human trafficking is a global crisis that is inextricably linked to the current move of globalization in the sex industries involving women and children. Furthermore, Rahman argues that several markets of differing consumer needs and the supply chains aimed at satisfying these needs can be distinguished. These chains have become increasingly globalized, which means that we have to understand the issue in the framework of contemporary globalization and especially global capitalism. 42 3. Hence one can understand Gallagher s critique of the ICMRW as a child of its time and deeply rooted in migratory problems and policies of the 1960s and 1970s 43, which would explain the patterns of reluctance shown by many countries in ratifying the Convention. As Gallagher critiques, the Convention contains no reference to the special vulnerabilities of women migrant workers or to the gendered nature of abuses to which they are subject. 44 In light of Rahman s theory of globalization in sex industries involving women and children, and recent academic literature on the issue, the IMCRW s failure to provide any form of explicit protection to women migrant workers against gender-related harms may be seen as a major weakness. 45 4. However, it cannot be denied that the IMCRW is still a potential source of rights and obligations for broader groups of noncitizens such as migrant workers. Furthermore, as Dauvergne highlights, the tales of globalization invariably return to one or two 40 Above n 2. 41 Loring, Jones, David W. Engstrom, Tricia Hilliard and Marial Diaz, Globalization and Human Trafficking, Journal of Sociology & Social Welfare, June 2007, Volume XXXIV, Number 2. 42 Rahman, Majeed A. Human Trafficking in the era of Globalization: the case of Trafficking in the Global Market Economy, Transcience Journal Vol 2, No 1 (2011). 43 Gallagher, Anne T. quoting Lonnroth in The International Law of Human Trafficking, (Cambridge University Press 2010). 44 Gallagher, Anne T. The International Law of Human Trafficking, (Cambridge University Press 2010). 45

geographies the European Union or the United States. As can be observed by the overlapping of laws and the reluctance of states to ratify the IMCRW, people trafficking and illegal migration is a fragile and sensitive issue at a global level today. Despite increasing reports concerning human rights abuses relating to migrant workers, there have been no serious attempts to regulate migration globally. Dauvergne argues that the emphasis on migration as a matter of individual decision making reflect domestic policy failure. However, it is evident that global forces have fractured the fiction of the sovereign equality of states in this setting more comprehensively than in any other this adds a new and more potent dimension to the growth of global inequality that accompanies the global area. It is another of globalization s paradoxes. 46 5. What is evident, however is that as long as destination countries refuse to ratify the ICMRW, the Convention will suffer from a sever handicap. 47 Some critiques have suggested looking for alternatives to the Convention, or amending the Convention to incorporate the concern of developed destination countries and modern globalization patterns. As Dauvergen encourages, A leap beyond what we can currently imagine is not only a risk worth taking, it is the only way forward from here. 48 46 Dauvergne, Catherine. Making People Illegal: What Globalization Means for Migration Law, (Cambridge University Press 2008). 47 Above n 2. 48 Above n 44.

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