Working paper on the Rights of Non-Citizens; Appendix on Issues Relating to Migrants

1. In its decision 1998/103 the Sub-Commission requested a working paper on the rights of persons who are not citizens of the country in which they live. The Sub-Commission’s decision mentioned several issues that might be considered in the working paper for further study, including ways of overcoming impediments to ratification of the International Convention on the Rights of All Migrant Workers and Members of Their Families and ways of contributing to the efforts of the Commission on Human Rights working group of intergovernmental experts on the human rights of migrants. This appendix responds to those two issues relating to migrants.

I. International Convention on the Protection of All Migrant Workers and Members of Their Families (Migrant Workers Convention)

2. On 18 December 1990, the General Assembly adopted the International Convention on the Protection of All Migrant Workers and Members of Their Families (Migrant Workers Convention).^[1] This Convention originated from a request by the Economic and Social Council (ECOSOC) to the Sub-Commission on Prevention of Discrimination and Protection of Minorities to study the condition of migrant workers.^[2] The Sub-Commission appointed Ms. Halima Warzazi to prepare a preliminary study on the exploitation of labor through illegal migration.^[3] Her study recommended that the UN should be involved to “ensure that all humanitarian aspects of the problem [of the exploitation of migrant workers] are covered.”^[4]

3. The Migrant Worker Convention covers all migrant workers and their families.^[5]The Convention provides for: non-discrimination with respect to rights of migrant workers,^[6] the assurance of fundamental human rights,^[7] equality of treatment between nationals and migrant workers as to work conditions and pay,^[8]the right to participate in trade unions,^[9]equal access to social security,^[10] right to emergency medical care,^[11]and equality of access to public education.^[12] In addition, States parties must ensure respect for workers’ cultural identity^[13] and inform migrant workers of their rights under the Convention.^[14]

4. The pace of ratification of the Migrant Workers Convention has not been particularly prompt. As of 5 May 1999, the Migrant Workers Convention had been ratified or acceded to by eleven States -- Azerbaijan, Bosnia and Herzegovina, Cape Verde, Colombia, Egypt, Mexico, Morocco, the Philippines, Seychelles, Sri Lanka, and Uganda -- and had been signed by three additional States -- Bangladesh, Chile, and Turkey.^[15] Those fourteen States do not generally receive migrants, but migrants do come from several of those nations. Article 87 of the Migrant Workers Convention requires 20 States parties for the Convention to come into force. In order to encourage ratification of the Convention, the Secretary-General, has called upon all Member States to consider signing and ratifying or acceding to the Convention as a matter of priority.

5. In assessing the speed of ratification of the Migrant Workers Convention, it is useful to consider the time required for ratification of other human rights conventions. The Migrant Workers Convention was adopted by the General Assembly over eight years ago,^[16]and still has not entered into force. Although it is of concern that the Migrant Workers Convention has not yet entered into force, it is important to note that other conventions have taken varying amounts of time to enter into force.

6. Some conventions have received enough ratifications to enter into force very quickly, while other conventions have taken a number of years to enter into force. On the one hand, the Convention on Rights of the Child was adopted by the General Assembly on 20 November 1989, and entered into force on 2 September 1990^[17]- less than one year later. On the other hand, two of the major conventions which comprise the International Bill of Human Rights each took nearly ten years to enter into force. The International Convenant on Economic, Social and Cultural Rights was adopted on 16 December 1966, and did not enter into force until 3 January 1976. The International Covenant on Civil and Political Rights was also adopted on 16 December 1966, and entered into force 23 March 1976.^[18] The Convention against Torture took two and one half years (1984-87)^[19]and the Convention on Racial Discrimination took nearly three years (1966-69).^[20]

7. In order to identify obstacles to ratification and to seek ways of overcoming them, two meetings of high-level governmental experts for the African region and the Asian-Pacific region were held in Addis Ababa from 14 to 17 May 1996 and Amman from 1 to 4 September 1997 respectively. In addition, Shirley Hune and Jan Niessen have comprehensively examined current difficulties and prospects for ratifying the Migrant Workers Convention.^[21]

8. “The ILO was to be concerned with migrants as workers and the UN was to be concerned with their status as aliens. It would appear, however, that this agreement between the UN and the ILO has lost much, if not all, of its validity as a result of the adoption of the [Migrant Workers Convention]”^[22]Some nations have stated that a new convention on the rights of migrant workers was not needed due to the already existing ILO provisions.^[23] They specifically cite to ILO Convention Nos. 97 and 143 as two existing multilateral treaties on the rights of migrant workers,^[24]and conclude that ratification of the new Migrant Workers Convention is not needed.^[25]

9. The ILO conventions are considered superior to the Migrant Workers Convention by some, because “the unique tripartite contribution by governments, employers, and workers to the content of ILO standards make them a worthy foundation on which to build further safeguards for migrant workers and their families.”^[26]The ILO only has, however, “limited competence to deal with such concerns as culture, education, and political participation.”^[27] In addition, the Secretary-General has stated that “the standards applicable to migrants under ILO instruments represent only the minimum required for their protection.”^[28]

10. The UN Migrant Workers Convention extends rights to a number of groups previously not covered by the ILO conventions, namely “frontier, itinerant, project-tied, specified employment and self-employed migrant workers.”^[29] In addition, the Migrant Workers Convention is considered to be “the most ambitious statement to date of international concern for the problematic condition of undocumented migrants.”^[30]

11. Some analysts believe that there is duplication between ILO standards and the Migrant Workers Convention because “no two different drafting processes in international forums will ever produce identical results.”^[31] Some analysts, however, conclude that this is only a problem “where the new text falls below existing standards. . . The development of human rights requires that later instruments be more favorable to individuals than earlier ones.”^[32] Because the Migrant Workers Convention provides for greater rights than existing ILO standards, it cannot be said that the Migrant Workers Convention duplicates ILO standards, although some States may not wish to extend further rights to migrants.

12. “The prevailing view [in conventional international law] is that states may draw limits, and that they may condition the entry of foreigners into their territory upon their consent.”^[33] “Opponents [of rights for the undocumented] assert . . . that states should not be obliged to provide undocumented aliens anything more than minimal human rights protections because they are not party to the social contract which binds the national community.”^[34]

13. Because “[m]igrant workers face the gravest risks to their human rights and fundamental freedoms when they are recruited, transported and employed in defiance of the law,”^[35]the prevention of illegal migration will reduce human rights abuses. Therefore, one purpose of the adoption of the Migrant Workers Convention is to discourage illegal migration.^[36] Article 68 of the Migrant Workers Convention requires States parties to “collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation.”^[37] “More specifically, States parties are required to take appropriate measures . . . to detect and eradicate illegal or clandestine movements; and measures to impose effective sanctions on persons, groups or entities which organize, operate or assist illegal or clandestine migration.”^[38] Therefore, the Convention will ultimately serve to reduce the number of irregular migrants residing within member states, also reducing associated costs to governments.

14. In addition, the Convention places no restrictions on the qualifications States parties utilize to determine the admissibility of migrants. Article 79 specifically states that “Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families.”^[39]

d. Economic Issues

15. According to Hune and Niessen, the major impediment to ratification of the Migrant Workers Convention is international economic, social, and political instability. Specifically, they cite low economic growth, economic restructuring of basic industries, shrinking wages, and rates of unemployment.^[40] Due to the arrival of migrants in concentrated groups, both chronologically and spatially, as well as cultural and language differences, “governments are less able to absorb a sizeable increase in newcomers and at the same time maintain the same level of social securities for their populace.”^[41]

16. It is specifically because of these perceived economic conditions, and the tendency of governments to view migrants as an economic burden that the rights enumerated in the Migrant Workers Convention are necessary to ensure the human rights and fundamental freedoms of migrants.

16. Further, these economic fears are unfounded. Rather than creating an economic burden, “international labor migration should be economically beneficial to both receiving and sending countries because scarce resources [such as labour] are reallocated to a more efficient or higher wage use.”^[42] Scholars have observed that receiving countries specifically benefit from foreign migrant labour through labour which may be less expensive, abundantly available, effective, generally youthful, and often highly skilled, and willing to take on unpleasant tasks.^[43]

e. Political Climate

18. According to Hune and Niessen, the political climate is currently not hospitable toward migrant workers generally.^[44] Specific political events leading to this policy orientation are: the end of the Cold War and the subsequent instability in Central and Eastern Europe, the war in the former Yugoslavia, fear of a massive East-West flow of migrants, and the focus on security and stability within and between States which migrants are apparently seen as undermining.^[45]

19. The Migrant Workers Convention specifically provides for the observance of the human rights and fundamental freedoms of migrant workers, regardless of transitory instabilities in world conditions. Particularly since perceptions of migrants are often based on false information (as described in the economics section above), it is of the utmost importance that migrants be protected.

f. General Impediments

20. In addition to these obstacles, a number of more general impediments to ratification have been identified. The impediments which should be easily overcome include: lack of awareness of the existence of the Convention and a false perception about the character of the Convention as well as about the effects of ratification.^[46] While lack of awareness and false perception are pervasive, concerted educational efforts should be undertaken to combat these underlying fears upon which other claims against ratification are based.

II. Relation to the Efforts of the Working Group of Intergovernmental Experts on the Human Rights of Migrants and the Special Rapporteur on the Human Rights of Migrants

21. In its resolution 1997/15 of 3 April 1997 the U.N. Commission on Human Rights established the Working Group of Intergovernmental Experts on the Human Rights of Migrants. The Working Group was given a mandate to:

“(a) Gather all relevant information from Governments, non‑governmental organizations and any other relevant sources on the obstacles existing to the effective and full protection of the human rights of migrants;

(b) Elaborate recommendations to strengthen the promotion, protection and implementation of the human rights of migrants . . ..”

22. The Working Group on Migrants and Human Rights initially distributed a questionnaire to all States in which it inquired: “What steps have been taken in order to ratify the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Labour Organization (ILO) Convention concerning Migration for Employment (Revised), 1949 (No. 97), and the ILO Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, 1975 (No.143)?”^[47]

23. The Working Group on Migrants and Human Rights indicated in its first report^[48] that it expected to include “the promotion of the ratification of relevant United Nations and ILO conventions, in particular the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.”

24. The final report of the Working Group on Migrants and Human Rights noted that the U.N. Migrant Workers “Convention had not yet entered into force and efforts to promote its ratification should be intensified.”^[49] Accordingly, the Working Group recommended “the appointment by the Commission of a special rapporteur for a period of three years to advocate, promote and monitor the protection of the human rights of migrants.”^[50]

25. On 27 April 1999, the U.N. Commission on Human Rights in its resolution 1999/44 decided to replace the Working Group on Migrants and Human Rights by a new Special Rapporteur on the Human Rights of Migrants. The Special Rapporteur is expected “in carrying out his/her mandate, to give careful consideration to the various recommendations of the working group of intergovernmental experts aimed at the promotion and protection of the human rights of migrants, and to take into consideration relevant human rights instruments of the United Nations to promote and protect the human rights of migrants . . ..”

26. The Commission has frequently admonished the Sub-Commission to avoid duplicating the work of the Commission. See, e.g., Commission on Human Rights res. 1999/81 of 28 April 1999. Rather than duplicate the efforts of the Commission’s Special Rapporteur on the Human Rights of Migrants, the Sub-Commission should transmit the present working paper and its attachment to the Special Rapporteur to assist in his/her work to promote the ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and in the hope that these Sub-Commission documents will be of assistance in understanding ways of overcoming the identified impediments to ratification. It is doubtful, however, that any subsequent study by the Sub-Commission should focus on these issues, because the present working paper has made the contribution which the Sub-Commission can realistically make, because the Special Rapporteur already has the relevant issues within its mandate, and because the very specific problems of migrants are only one aspect of the greater task of considering the rights of non-citizens. The other important aspects of this topic are not covered by a Special Rapporteur of the Commission or other U.N. mechanism. Accordingly, in order to avoid unnecessary duplication and out of respect for the Commission’s Special Rapporteur which has greater resources and visibility than the present working paper, the working paper will focus on those other aspects of the rights of non-citizens.

^[1] International Convention on the Protection of All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990) (hereinafter Migrant Workers Convention).

^[2] Res. 1789 (LIV) of 18 May 1973. See also Ryszard Cholewinski, Migrant Workers in International Human Rights Law (1997).

^[3] Res. 6 (XXXVI) of 19 Sept. 1973. See also Cholewinski, supra note 2.

^[5] Migrant Workers Convention, Article 1. AThe present Convention is applicable, except as otherwise provided hereafter, to all migrant workers and members of their families without distinction of any kind.”

^[6] Migrant Workers Convention, Part II, Art. 7.

^[7] Migrant Workers Convention, Part III, Art. 8 B Art. 24.

^[8] Migrant Workers Convention, Part III, Art. 25.

^[9] Migrant Workers Convention, Part III, Art. 26

^[10] Migrant Workers Convention, Part III, Art. 27

^[11] Migrant Workers Convention, Part III, Art. 28

^[12] Migrant Workers Convention, Part III, Art. 30.

^[13] Migrant Workers Convention, Part III, Art. 31.

^[14] Migrant Workers Convention, Part III, Art. 33.

^[15] <http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_13.html>

^[16] The Rights of Migrant Workers, Fact Sheet No. 24, Geneva, 1996.

^[17] <http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_11.html>

^[18] <http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_3.html> Also, note that Article 41 did not enter into force until thirteen years after adoption, on 28 March 1979.

^[19] <http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_9.html>

^[20] <http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_2.html>

^[21] Hune, S. and Niessen, J., Ratifying the UN Migrant Workers Convention: Current Difficulties and Prospects, 12 NQHR 393 (1994).

^[22] Cholewinski, supra note 2, at 138.

^[23] UN, Commission on Human Rights, 49^th Session, Position Paper of the United States, Measures to Improve the Situation and Ensure the Human Rights and Dignity of All Migrant Workers, 21 Jan. 1993.

^[24] Id. (ILO Convention No. 97 has been ratified by 41 States and ILO Convention No. 143 has been ratified by 18 States.)

^[26] Cholewinski, supra note 2, at 136.

^[28] Id. at 135, citing Report of the UN Secretary-General to the UN Commission for Social Development, 28^th Session, Vienna, 7 B 16 Feb. 1983, Social Integration. Pertinent Regulations concerning the Welfare of Migrant Workers and their Families, UN Doc. E/CN.5/1983/10 (1983).

^[29] Roger Böhning, The ILO and the New UN Convention on Migrant Workers: The Past and Future, 25 IMR 698.

^[30] Linda Bosniak, Human Rights, State Sovereignty and the Protection of Undocumented Migrants Under the International Migrant Workers Convention, 25 IMR 737, 740.

^[33] Linda S. Bosniak, Human Rights, State Sovereignty and the Protection of Undocumented Migrants Under the International Migrant Workers Convention, 25 Int=l Migration Rev. 737, 743 (1991).

^[35] The Rights of Migrant Workers, Fact Sheet No. 24, 1994, at 7.

^[36] G. Fonteneau, The Rights of Migrants, Refugees or Asylum Seekers under International Law, 30 Int=l Migration 57, 58 (1992).

^[37] Migrant Workers Convention, Art. 68; also see The Rights of Migrant Workers, Fact Sheet No. 24, 1994 at 8.

^[39] Cholewinski, supra note 2, at 192, citing the Migrant Workers Convention.

^[40] See Hune and Niessen, supra note 21.

^[42] Cholewinski, supra note 2, at 22.

^[43] Cholewinski, supra note 2, at 23.

^[46] Niessen and Hune, supra note 21, at 9 B 13.

^[47] Report of the Working Group on Migrants and Human Rights, U.N. Doc. E/CN.4/1998/76 (1998).

^[49] Report of the Working Group on Migrants and Human Rights, U.N. Doc. E/CN.4/1999/80, para. 66 (1999).