At its International Labor Conference in June 1999, the International Labour Office (ILO) reviewed a study on the status and prospects for its two conventions relating to migrant workers rights. In 1995 the ILO Governing Body had established a Working Party on Policy regarding the Revision of Standards to review current needs for the revision of standards, examine criteria for revision, and analyze the obstacles to ratification. The ILO Migration for Employment Convention (Revised), 1949 (No. 97), and/or the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) were observed to have relatively low rates of ratification. Convention No. 97 has 41 ratifications, and No. 143 only 18, making a total of 59 ratifications for both; 12 member States have ratified both instruments. The rate of ratifications has slowed in recent years. Since 1980, seven new ratifications were registered for Convention No. 97 and ten for Convention No. 143.

In 1996 the Governing Body invited governments to submit reports on the state of law and practice regarding these instruments. A Committee of Experts subsequently prepared a General Survey on the effect given to these instruments. The Working Party on Policy studied the responses and presented a report to this year’s session of the International Labor Conference. A large number of countries replied to the survey, allowing the Working Party to analyze on a broad range of views from all regions.

In replying to the survey, a number of governments stated that ratification of one or both of the Conventions was envisaged or being studied, without however indicating a time frame. These included the governments of Argentina, Australia, Colombia, Croatia, India, Lithuania, Peru, Poland, Sweden, Syria and Yemen. For example, the government of Sweden was reported to be "again investigating the possibility of ratifying Convention No. 97 in the light of changes that have occurred in its legislation" and the government of the Syrian Arab Republic stated that it had begun to take concrete steps to ratify these Conventions.

Albania, Brazil, Chile, Finland, Luxembourg and South Africa reported that ratification is envisaged once appropriate legislation has been adopted. ILO technical assistance has been requested by the Republic of Korea, Morocco, and Tajikistan, "with a view to facilitating the process of ratification."

Several governments stated that they did not plan to ratify either of these Conventions, and several countries had ratified one but had no plans of ratifying the other one.

The most common reasons cited for failure to ratify the Conventions are:

only a small number of migrant workers in a territory;

economic instability and high unemployment rates prompting Governments to give preference to nationals over foreign labour;

lack of the necessary infrastructure to apply the Conventions and high cost of implementing the instruments (for example, in the case of Convention No. 143 costly infrastructures to combat illegal immigration effectively);

Government intervention required by these instruments is not considered the best approach;

reluctance to enter into multilateral commitments in the area of policy on foreigners;

complexity of a country’s immigration legislation and practice as well as the fact that its legislation on this subject is constantly evolving;

these Conventions are no longer considered appropriate given the characteristics of contemporary international migration.

In the case of Convention No. 97, the provisions most frequently cited by governments as a source of difficulties are Articles 6 (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 occupational mobility) created the most difficulties.

Among the conclusions issued by the Working Party were following:

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. 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 international mobility of workers is today increasingly in the hands of private fee-charging recruitment agencies. 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. This has negative aspects, however, since workers are vulnerable to malpractices.

It is difficult to rely on regulation as a means of mitigating the impact of market forces on migration processes;

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 represents an important obstacle inasmuch as governments are concerned that rights recognized for irregular migrants could be broadly interpreted.

Ensuring 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)…. The provisions of these instruments offer a higher degree of protection than that afforded by national legislation. 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….

Another aspect of equality of opportunity and treatment is the impact of regional groupings (the European Union, MERCOSUR and others). 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.

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", may in some circumstances constitute violations of the fundamental human rights of workers.

The Committee 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.

Some of the provisions of the instruments are simply out of date.

The report identified two main options for the ILO:

1) 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….. This status quo could equally be accompanied by a vigorous promotion campaign….. A variant on this approach would be to elaborate one or several additional protocols designed to bridge the gaps in the instruments mentioned above.

2) The second option is to revise Conventions Nos. 97 and 143. 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.

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