Section III

Importance and Content of the Convention

 Why is the Convention important?

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families breaks new ground by extending protection for migrant workers and members of their families world-wide. It also goes beyond simply applying existing human rights legislation to a specific category of individuals.

The Convention advances how the international community conceives of the application of human rights in its provisions for "equality of treatment" between women and men migrant workers, between documented and undocumented workers, and between nationals and non-nationals. 

Its importance may be highlighted by these 10 points:

  1. The Convention recognizes the critical role which the migration of workers plays in the global economy. This affects a host of political, social, economic, ethical and legal issues for millions of individuals and numerous States which cannot be ignored. Yet migrant workers remain a largely unprotected group in the international community.

  • Today, migrant workers and their families are often disregarded by their countries of origin, exploited by individuals, and have limited rights in States of employment where they are non-nationals. The Convention identifies migrant workers and members of their families as vulnerable persons in a global situation who are in need of the protection of their human rights and are entitled to the enjoyment of such rights regardless of their legal status. It extends human rights law to a specific category of individuals who currently lack protection. Its provisions would extend a measure of human rights protection to other categories of vulnerable migrants as well.
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  • The Convention is the most comprehensive international instrument to date on migrant workers. It provides a set of international standards to address (a) the treatment, welfare and rights of migrant workers and members of their families and (b) the obligations and responsibilities of States involved. These include sending States, States of transit, and host States, all of which benefit from the international migration of workers. Bilateral and regional agreements are important, but insufficient in addressing this global matter.
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  • The global community has for the first time an international definition of migrant worker, one which recognizes both men and women as migrants. The Convention also provides definitions of certain categories of migrant workers that are applicable to every region of the world.
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  • Migrant workers are considered more than laborers or economic entities. They are social entities with families. The Convention recognizes that they have rights accordingly, including that of family reunification. 
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  • The Convention emphasizes that all migrant workers, whether in a documented or undocumented situation, are to be accorded fundamental human rights. It is inclusive of all migrant workers regardless of their legal status, but encourages their being in a documented or regular situation. It encourages all workers and employers to respect and comply with the laws and procedures of the States concerned.
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  • The Convention also extends the concept of "equality of treatment" by calling for migrant workers and members of their families who are non-nationals in States of employment to be treated equally to nationals in certain situations. It thus reinforces the indivisibility of human rights regardless of nationality and national borders. Non-nationals, however, are not to have more rights than nationals.
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  • It seeks to establish minimum standards of protection in legal, political, economic, civil, social and cultural rights for migrant workers and members of their families which are universally acknowledged, while enabling States that desire so to provide additional protection in specific areas. Hence it also seeks to address those States that lack national standards of human rights protection and encourages them to bring their legislation in closer harmony with universal standards set forth in the Convention. States retain their right to determine who is admitted to their countries and their terms of residency.
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  • Overall, the Convention seeks to play a role in preventing and eliminating the exploitation of all migrant workers and members of their families throughout the entire migration process. In particular, it seeks to put an end to the illegal or clandestine recruitment and trafficking of migrant workers and to discourage the employment of migrant workers in an irregular or undocumented situation.
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  • Finally, the Convention establishes mechanisms for its implementation which provide new opportunities for increased participation from the global community to protect the rights of migrant workers and their families, especially NGOs and individuals.

    • Highlights of the Convention

    Scope and definitions

    • What extent of the migration experience does the Convention cover?

    The Convention applies to the entire migration process of migrant workers and members of their families. It extends them rights and protection at all stages: preparation, recruitment, departure and transit; stay in States of employment; and their return to and resettlement in original homelands or States of residence (Art. 1).

    • Who is a migrant worker? How do migrant workers differ from other migrants?

    Not all migrants are migrant workers. For the first time in an international instrument, the Convention provides a definition of a migrant worker centered on engagement in a "remunerated activity." This definition is broad and includes protection those who are planning to become migrant workers, actually working outside their own country, or ending work abroad and returning to their homelands.

    It states, "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" (Art. 2). Because each type of migrant has distinct issues, those who migrate as political refugees, employees of a State, students, investors, and so on should not be confused with migrant workers and their specific needs and concerns.

    The Convention also recognizes the importance of women as migrant workers in their own right in the definition of migrant worker. Reference is made throughout the Convention to ensure the full applicability of human rights legislation to female as well as male migrant workers and members of their families.

    • Are all migrant workers the same?

    In addition to a general definition of migrant worker status, the Convention recognizes the complexity of the migrant worker situation in the contemporary world. It also provides definitions for specific categories of migrant workers, such as "frontier worker," "seasonal worker," "project-tied worker," and "self-employed worker (Art. 2)." The "self-employed worker" category recognizes the large number of migrant workers who operate a small family business by themselves or with other family members. Part V of the Convention elaborates which rights are to apply to which categories of migrant workers and members of the families.

    • Why are family members included in the Convention? Who is a family member of a migrant worker?

    In a forward step in human rights legislation, the Convention considers migrant workers social entities as well as economic entities and favors the reunification of families of migrant workers.

    It defines "members of the family" as "persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage," and their dependants as recognized by the legislation of States concerned (Art. 4). This terminology takes into consideration the different forms of family relations globally. It also elaborates rights and protection to family members in a range of situations, especially in the host country with the migrant workers.

    • Does the Convention exclude anyone?

    For those who meet the definition of migrant worker and member of the family, the Convention has a nondiscrimination article and rejects distinctions of any kind such as sex, race, color, language, religion, political conviction, nationality, age, economic position, property, marital status, birth or other status (Art. 7).

    Rights of migrant workers and members of their families (1)

    The Convention defines the rights of migrant workers under two main headings: the human rights of migrant workers and members of their families (Part III) and other rights of migrant workers (Part IV). The human rights are applicable to all migrant workers irrespective of their legal status while the other rights are applicable only to migrant workers in a regular situation. However, the Convention does not exclude illegal workers. It contains provisions for the just treatment of illegal workers.

    Human rights of migrant workers and members of their families 

    The Convention is not proposing new human rights exclusively for migrant workers. Part III of the Convention is a reiteration of the basic rights which are enshrined in the Universal Declaration of Human Rights and elaborated in the international human rights treaties now adopted by many nations. 

    Why are they then repeated here? The Convention seeks to draw the attention of the international community to the dehumanization of migrant workers and members of their families, many of whom are deprived of their basic human rights. Indeed, legislation implementing other basic treaties in some States utilizes terminology covering citizens and/or residents, de jura excluding many migrants, especially those in irregular situations.

    ü Basic freedoms 

    Applying these fundamental rights to migrant workers and members of their families, the Convention provides for their right to leave and enter the State of origin (Art. I). The inhumane living and working conditions and physical (and sexual) abuse that many migrant workers must endure are covered by the reaffirmation of their right to life (Art. 9) and prohibition against cruel, inhuman or degrading treatment of punishment (Art. 10) as well as slavery or servitude and forced or compulsory labor (Art. 11). 

    Migrant workers are also entitled to basic freedoms like the freedom of thought, conscience and religion (Art. 12), and the right to hold and express opinions (Art. 13). Their property should not be confiscated arbitrarily (Art. 15).

    ü Due process 

    The Convention then goes on to explain in detail the need to ensure due process for migrant workers and members of their families (Art. 16 - 20). Investigations, arrests and detentions are to be carried out in accordance with established procedures. Their right to equality with nationals of the State before the courts and tribunals must be respected. They must be provided with necessary legal assistance, interpreters and information in a language understood by them. When imposing a sentence, humanitarian considerations regarding the person's migrant status should be taken into account. The arbitrary expulsion of migrant workers is prohibited (Art. 22). 

    ü Right to privacy 

    A migrant worker is entitled to his or her honor and reputation and also to privacy, which extends to one's home, family and all communications (Art. 14).

    ü Equality with nationals 

    Migrant workers are to be treated as equal to the nationals of the host country in respect of remuneration and conditions of work [overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of work contract, minimum age, restrictions on home work, etc. (Art. 25)].

    Equality with nationals extends also to social security benefits (Art. 27) and emergency medical care (Art. 28). 

    ü Transfer of earnings 

    On completion of their term of employment, migrant workers have the right to transfer their earnings and savings as well as their personal effects and belongings (Art. 32).

    ü Right to information 

    They have the right to be informed by the States concerned about their rights arising from the present Convention as well as the conditions of their admission, and their rights and obligations in those States. Such information should be made available to migrant workers free of charge and in a language understood by them (Art. 33). 

    Other rights of migrant workers and members of their families who are documented or in a regular situation

    By providing for additional rights for migrant workers and members of their families in a regular situation, the Convention seeks to discourage illegal labor migration. Improvements in the situation of legal migrant workers would be an incentive for persons seeking overseas employment to enter the overseas labor market legally. 

    ü Right to be temporarily absent

    Migrant workers should be allowed to be temporarily absent, for reasons of family needs and obligations, without effect on their authorization to stay or work.

    ü Freedom of movement

    They have the right to move freely in the territory of the State of employment and also to choose where they wish to reside (Art. 39).

    ü Equality with nationals for access to educational, vocational and social services

    In addition to the areas mentioned in Article 25, migrant workers and members of their families shall enjoy equality with nationals of the State of employment in the following areas: access to education, vocational guidance and placement services, vocational training, retraining, housing including social housing schemes, protection against exploitation in respect of rents, social and health services, cooperatives and self-managed enterprises, access to and participation in cultural life (Art. 43). Members of the families of migrant workers also shall enjoy equality with national of States of employment in having access to these services (Art. 45).

    Migrant workers shall enjoy equality of treatment in respect of protection against dismissal, unemployment benefits, access to public work schemes intended to combat unemployment and access to alternative employment in the event of loss of work or termination of other remunerated activity (Art. 54). 

    ü Employment contract violations 

    When work contracts are violated by the employer, the migrant worker has the right to address his or her case to the competent authorities in the State of employment (Art. 54 (d)). And they shall have the right to equal treatment with nationals and be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law (Art. 18.1).  

    Rights of irregular ('illegal') workers 

    The Convention recognizes that "the human problems involved in migration are even more serious in the case of irregular migration" and the need to encourage appropriate action "to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental rights" (Preamble).

    As measures for preventing and eliminating illegal labor migration, the Convention proposes that the States concerned should collaborate in taking appropriate actions against the dissemination of misleading information relating to emigration and immigration, to detect and eradicate illegal or clandestine movements of migrant workers and impose sanctions on those who are responsible for organizing and operating such movements as well as employers of illegal migrant workers (Art. 68). However, the fundamental rights of undocumented migrant workers are protected by the Convention (Art. 8 - 35). 

    Duties of all State Parties 

    Just as in the case of other international instruments, the successful implementation of the Convention hinges on the political will of the States concerned. The United Nations Organization does not have the power to enforce it in the territories of its member States. The UN system can only set standards and establish policy-making or monitoring bodies, such as the UN Commission on Human Rights and the respective treaty bodies. 

    Once a State ratifies the Convention, it undertakes not only to reaffirm these underlying principles, but also to put its provisions into practice. First, the provisions have to be integrated into national law so that they become legally binding within the State. Then, there are certain practical measures which both sending and receiving States are required to undertake, individually or in cooperation with each other. 

    ü Nondiscrimination

    Both sending and receiving States are obliged to be nondiscriminatory in enabling migrant workers and members of their families within their territories or jurisdiction to enjoy the rights set forth in the Convention (Art. 7). Nondiscrimination extends to migrant workers' sex, race, nationality, color, language, religion as well as to one's convictions, age, economic position, property, marital status, etc. 

    ü Promotion of sound equitable, humane and lawful conditions in connection with international migration of workers and members of their families

    States concerned are required to consult and collaborate with one another to ensure better living and working conditions for migrant workers and their families. Account must also be taken of their social economic, cultural and other needs as well as impact of migration on the communities concerned (Art. 64).

    Appropriate services must be maintained by the States concerned for:

    • the formulation and implementation of migration policies;

  • the exchange of information, consultation and cooperation between competent authorities of States concerned;
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  • the provision of appropriate information to employers and workers on policies and laws concerning migration;
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  • the provision of adequate consular services to meet the social, cultural and other needs of migrants;
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  • the regulation of recruitment of migrant workers by restricting it to public services or bodies of the States concerned and through private agencies and employers and their agents, subject to authorization, approval and supervision (Art. 65 & 66).

    • States concerned are required to consult and collaborate in preventing and eliminating illegal and clandestine movements of labor by:

    • taking appropriate measures against the dissemination of misleading information relating to emigration and immigration;

  • taking appropriate measures to detect and eradicate illegal labor migration;
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  • imposing sanctions on persons and entities, including employers, who are responsible for illegal movements of migrant workers (Art. 68). 

    • States concerned shall take necessary measures, not less favorable than those applied to nationals, to ensure that migrant workers and members of their families are provided with working and living conditions in keeping with standards of fitness, safety, health and human dignity (Art. 70). 

    ü Provision of information

    If migrant workers are to benefit from the provisions of the Convention, they must know what it is all about. All other rights depend on their right to adequate, relevant and factual information. Hence, the sending and receiving countries are required to provide information to migrant workers regarding the rights arising from the Convention (Art. 33).

    Moreover, the sending and receiving States are also obliged to provide information to migrant workers, before their departure or entry into a receiving State, about the following: applicable conditions of their admission, stay and employment; rights and duties under the law in the receiving State: other matters that will facilitate their compliance with the requirements in the receiving country; competent authority to whom recourse may be made for any change of these conditions (cf. also Art. 37). 

    Provision of relevant information to migrant workers should be free of charge and in a language understood by them. 

    Such information should be disseminated to others involved in the migration process as well: employers, trade unions and other relevant institutions and organizations. 

    ü Institutions to address the needs of migrant workers

    States concerned must establish institutions for the purpose of taking into account the special needs, aspirations and obligations of migrant workers and enable them to be represented in these institutions (Art. 41).

    ü Remittances, and tax and customs duty exemptions

    The States concerned must permit and facilitate the transfer of the migrant workers' earnings and savings to their States of origin (Art. 47).

    Migrant workers and members of their families should not be made to pay taxes higher than those imposed on nationals. They shall enjoy equality with other nationals in the States concerned in regard to tax deductions and allowances. States should also consider the possibility of avoiding double taxation for migrant workers (Art. 48). 

    The States concerned must consider the possibility of granting exemptions of migrant workers and members of their families from customs duties and taxes on their personal and household effects and equipment required for the remunerated activity in the State of employment (Art. 46). 

    Duties particular to sending countries 

    ü Emigration of workers 

    Persons seeking employment abroad should be allowed to leave and enter the country of origin (Art. 8). 

    ü Pre-departure information

    Before the departure of workers and members of their families to the States of employment, they must be fully informed of all conditions applicable to their admission, stay and employment as well as other requirements (Art. 37).

    ü Exercise of political rights of migrants 

    States of origin must facilitate the exercise of the right of migrant workers and members of their families to participate in public affairs, vote and be elected in elections in their home countries. (Art. 41).

    ü Provision of adequate consular services

    Sending States should provide adequate consular and other services required to meet the social economic, cultural and other needs of their migrant workers and members of their families (Art. 65.2). 

    ü Regulation of recruitment

    Recruitment of workers for overseas employment should be regulated by restricting it to public services or bodies of the sending State. Recruitment by agencies, employers and their agents should be subject to authorization, approval and supervision (Ar. 66).

    ü Resettlement of migrant workers

    Migrant workers and members of their families, including illegal migrants, must be assisted to make an orderly return to their home countries. The States of origin must take appropriate measures to promote adequate economic conditions for their resettlement, and social and cultural reintegration (Art. 67). 

    Duties particular to States of employment

    ü Liberty and security of persons

    Migrant workers and their families, including those arrested or detained, must be given protection against violence and other forms of harassment by private individuals, public officials, groups or institutions (Art. 16 and 17).

    ü Working and living conditions

    Working and living conditions of migrant workers must be in keeping with the standards of fitness, safety, health and principles of human dignity (Art. 70).

    ü Confiscation of property

    Migrant workers and members of their families should not be arbitrarily deprived of their property. If their assets are to be confiscated under the laws of the State of employment, adequate compensation must be paid (Art. 15). 

    ü Equal status with nationals

    Migrant workers and members of their families must be enabled to enjoy equality with nationals of the State of employment before the courts of law and tribunals (Art. 18). Equality with nationals shall also apply to remuneration, conditions of work, e.g. overtime, hours of work, weekly rest, holidays with pay, safety, termination of contract, etc. (Art. 25) as well as access to education, vocational training, guidance and placement, housing including social housing schemes, social and health services (Art. 43) and social security (Art. 27).

    Children of migrant workers, including those of illegal workers, shall also be given equality with nationals in gaining access to education, including preschool education (Art. 30).

    ü Trade union activities

    The States of employment must permit migrant workers and members of their families to join or form trade unions and associations for the protection of their economic, social, cultural and other rights (Art. 26).

    ü Protection of their personal documents

    States of employment must ensure that the identity documents, work and residence permits of migrant workers are not confiscated or destroyed by unauthorized persons and that their passports are not destroyed by anyone (Art. 24).

    ü Family reunification

    States of employment shall consider the possibility of enabling the members of the family to join the migrant worker, in order to protect the unity of the family (Art. 44).

    States' application of the Convention

    ü Reporting

    The States concerned are required to submit a report to the Committee on the Protection of the Rights of Migrant Workers and Members of their Families (2), within one year after the Convention enters into force, on the legislative, judicial, administrative and other measures they have taken to implement the provisions of the Convention. Thereafter, reports must be submitted every five years or whenever the Committee so requests (Art. 73).

    ü No compulsion on migrant workers to renounce their rights

    The States concerned shall not exert pressures on migrant workers and members of their families to relinquish or forego these rights arising from the Convention (Art. 82).

    Moreover, the States concerned must ensure the recognition of the rights of migrant workers and members of their families, and provide effective remedies for violations of such rights (Art. 83). 

    Notes:

    (1) The remaining text in this chapter is excerpted from the Migrant Forum in Asia publication "Ratifying UN Convention Protecting Migrant Workers" MIGRANT WOMEN Quest for Justice.

    (2) The Committee is the treaty body for the Convention. By adhering to a treaty, States Parties agree to engage in a dialogue with the relevant treaty body. They assume a legal obligation to submit periodic "State reports" outlining the legislative, judicial, administrative and other measures they have taken to ensure the enjoyment of the rights contained in the treaty. Treaty bodies normally examine State reports in the presence of representatives of the Government and conclude with the adoption of "concluding observations" or "concluding comments".


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