Human Rights Analysis
The legal and social responsibilities towards migrant workers
Farah Ashraf
One of the major recent changes in contemporary international affairs is the increase in the scope and intensity of social relations, or the development of what has universally been termed globalization. Its intensification in the form of industrial reform and trade liberalization has formed a new range of economic and social circumstances that have far reaching impacts for countries around the world, such as 'labour migration`. Migration, the flow of human beings across the national borders, mainly in terms of labour mobility has been one of the most dynamic phenomena of the past decades and will be an ever-challenging issue in this era of globalization. There are an estimated 175 million people living outside their country of origin in the world of which 100 million are labour migrants. This represents 2.3 per cent of the world's population.
The belief that migrant workers are economically necessary but socially undesirable puts premium to economic gains while migrants' human and labour rights tend to be compromised and violated. “Migrant workers provide valuable services with their labour and furnish an often invisible subsidy to the national economies that receive them. They work in factories, produce food, provide domestic service, staff hospitals and contribute to a wide range of basic needs, often for low wages and with little recognition of the value of their contribution” Not all migration for employment is undertaken as a result of the migrant's free choice. Poverty and insecurity often force migrants to unwillingly look for any work in order to survive.
Most forms of international migration are on the rise, but illegal migration is growing most rapidly. As migration pressures intensify in sending countries, many receiving countries are tightening admissions requirements for legal migrants and asylum-seekers, of those entering or staying on illegally. The conclusions of the ILO Asian Regional Meeting, July 2003 highlighted the difference between a country's labour market needs and immigration policies 
as a primary cause of illegal migration. Another factor is the growth of informal and undeclared works in receiving countries. In some cases troublesome bureaucratic approval procedures in sending countries may encourage resort to irregular channels. Other causes are strict labour laws that link employment with residence in receiving countries. High local unemployment and poverty in several sending countries can lead to high migration pressures. There are also governance issues linked to lack of transparency in government administration and malpractices of recruitment agencies who charge excessive fees, send workers abroad without proper documents or authorization or for non-existent jobs. Lack of information about legal channels for labour migration is another contributing factor. Transnational criminal groups play a major role in irregular migration through trafficking and smuggling of human beings across borders.
A major regional meeting on Irregular/Undocumented Migration concluded in 1999: “…international migration, particularly irregular migration, has increasingly become a major economic, social, humanitarian, political and security concern for a number of countries in the Asia-Pacific region”. First, it is a protection problem. The situation is a prime ground for perpetration of various abuses against migrant workers. It exposes them to extreme risks and exploitation. Employers can afford to pay the lowest possible wages and deny them all rights. Workers cannot avail of even available services because of the fear of detection and deportation. According to the United Nations Commission on Human Rights, “migrant workers face the gravest risks to their human rights and fundamental freedoms when they are recruited, transported and employed in defiance of the law”. Second, it is a migration management problem for both sending countries. Third receiving countries perceive irregular migration increasingly as a security problem, particularly in the wake of 11 September events. Irregular migration is also an issue of unfair competition with some enterprises using workers at cheap wages to maintain their competitiveness and boost profits. Finally, it is a political problem that creates tensions between source countries and host countries.
A significant change in the recent migration patterns is the 'feminisation' of migration. Almost half of the migration population is female and these women are not always wives following their spouses. Countries like the Philippines and Bangladesh are sending a lot of female migrants abroad. Migrant rights, however, are not guaranteed in many countries. This can result in a situation where a country benefits from migration through remittances (this is what is tangible through the balance of payments) and where a family receives vital necessities. But it is very often also a situation in which the children - in the absence of their mother - are raised by their grandmother while the mother, earning money abroad, is exploited and in the worst case scenario even abused. The economic benefits are often realized at a very high social cost.
Migration of labour has been a significant factor in growth and development of many countries. Nonetheless labour migration has become an extremely exploitative and complex phenomenon. Under contemporary globalization, international labour mobility has increased, while levels of exploitation and deregulation have accelerated. They are obliged to work in situations where decent work conditions are not enforced. Irregular migrants are especially vulnerable because of the threat of apprehension and deportation. Many States have placed increasingly strict barriers on legal entry of migrant workers, especially those working in low-paid sectors lacking offer of national workers. Sectors employing irregular workers are usually those where little or no regulatory activity upholds minimum safety, health and working conditions that should ensure “decent work.” The absence of regulation reinforces employment of irregular migrant workers in substandard conditions, and provides incentive for shifting capital and employment from formal to informal activity.
Legally established rights and policy standards framed by international norms ensure social legitimacy and accountability for governance; this legitimacy and accountability can only be ensured by a foundation in the rule of law. The 1990 Convention embodies the evolution of international norms elaborated over the last century to ensure a normative framework for policy, legislation and practices of States in regulating or 'managing' migration. The first conventions on the subject were established in the questions of irregular migration, and explicitly incorporated reference to application of the fundamental human rights norms embodied in the instruments of the UN Bill of Human Rights. The two ILO conventions provide a basic framework for national legislation and practice on labour migration. These instruments stipulate that States actively facilitate fair recruitment practices and transparent consultation with their social partners, reaffirm non-discrimination, establish a principle of equality of treatment between nationals and regular migrant workers in access to social security, conditions of work, remuneration and trade union membership. The 1990 Convention is based on concepts and language drawn from the two ILO Conventions on migrant workers. It extends considerably the legal framework for migration, treatment of migrants, and prevention of exploitation and irregular migration.
Everything seems to indicate that, at least in the short and medium term, migration will continue to be stimulated in a highly interconnected world. The risks faced by persons who migrate to other countries in search of better opportunities or in order to rejoin their families or escape from persecution are increasingly evident, so the design of preventative measures is of fundamental importance. As a starting point, international agreements and States must recognize a basic principle: the use of police procedures should be reserved only for combating actions which really do constitute crimes, especially those committed by criminal organizations engaged in the trafficking of migrants. Although the criminal nature of such actions is beyond dispute, prosecution of them should not extend also to the victims of such traffic, and in the application of the relevant international instruments (the United Nations Convention against Transnational Organized Crime and its two protocols) a clear distinction should be made from the common minor offences of failing to possess the necessary official documents, since undocumented migrants are not criminals. Care should also be taken to ensure that disciplinary actions do not have adverse effects on migrant communities and networks. Another complex issue is that of deportation, which sometimes extends even to the interception of migrants in transit; in order to avoid arbitrary actions in the application of such rules, international agreements should be promoted which clearly identify the cases subject to punishment.
It is well known that undocumented or irregular migration involves serious risks for the migrants in question. Although this is a matter which gives rise to great controversy, there can be no doubt that the countries of origin should develop measures of an "educational" nature designed to minimize those risks and put migrants in a stronger position to cope with the legal and social vulnerability to which they are exposed. Some efforts have already been made in this respect, such as the educational campaigns promoted by the International Organization for Migration, but these need to be put on a much larger scale in order to inform potential migrants and the population in general of the fact that their entry and presence in another country means assuming legal responsibilities, facing difficulties in gaining access to employment and services, and knowing that they may have to accept living conditions that are not in keeping with their traditions. This information could be provided through programmes shared by the countries of origin, transit and destination of migrants.
From a different angle, measures should also be considered to reduce the dangers associated with discrimination and xenophobia. A first step in this direction would be for States to ratify the relevant international instruments and undertake to give full rights to immigrants. In the Declaration of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban in the year 2001, governments acknowledge that xenophobia is one of the main sources of contemporary racism and that violations of migrants' human rights are part of discriminatory and racist practices; they also reaffirm that while every country has the sovereign right to formulate and apply migration policies, these must be consistent with the rules and standards laid down in international instruments on human rights. By executing these strategies in a regulated manner it will be possible to curtail the unenviable outcome, which can ensure labour migration as an unexceptionable consequence of globalization.
The writer is a human rights activist.
