Law campaign
Why Bangladesh should ratify the International Convention on Migrants?
Dr. Uttam Kumar Das
The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990 (ICRMW) creates new grounds by extending protection to migrant workers and members of their families globally. It also goes beyond simply applying existing human rights legislation to a specific category of individuals.
The ICRMW, which came into force on 01 July 2003 advances how the international community conceives of the application of human rights in its provisions for equality of treatment between different groups of migrant workers: male and female, documented and undocumented, and also between the nationals and non-nationals. As of October 2008, the number of signatories to the instrument stands at 30 (including Bangladesh) while number of State parties is 39.
The term migrant workers 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).
Bangladesh context
Bangladesh is a major labour sending country. During last year (2007), a total of 832,000 Bangladeshis have had overseas jobs. The country earned US$ 7.94 billion as remittance during the 2007-08 fiscal years. Labour migration is a potential sector for Bangladesh given the employment opportunity for a large number of people abroad and as a mean for poverty reduction and employment strategies. However, there are challenges as well. This includes lack of skilled labour to tap the market demands and abuse and exploitation in the recruitment and migration processes including smuggling of migrants and trafficking in persons.
IOM MRF Dhaka has commissioned some studies during 2008 including one on the existing legal framework related to labour migration from Bangladesh, which observes that the overall existing legal framework may not be conducive to meet the need of the time and tackle the complexities of the labour migration sector. The major legal instrument, the Emigration Ordinance, 1982, does not have significant provision protecting the rights of the migrant workers, the study findings observe. It further comments that the penalties for the breach of the provisions of the Ordinance are also insignificant considering the seriousness of the crime (compared to similar crime penalised in other laws). Therefore, there is a growing acknowledgment for the amendment to the legal framework including that of the Ordinance.
Bangladesh has signed the ICRMW on 7 October 1998. However, it is yet to ratify the instrument.
Again the Constitution of Bangladesh guarantees certain rights for the citizens. Among them, mentionable ones are the equal protection of law (Art. 31), right to life and liberty (Art. 32), safeguards as to arrest and detention (Art. 33), prohibition of forced labour (Art. 34), protection in respect of trial and punishment (Art. 35), freedom of religion (Art. 41) and right to enforcement of these rights (Art. 44).
As a citizen of Bangladesh, a migrant worker is entitled to enjoy the same rights beyond the State boundary. State has a role here in ensuring and facilitating the enjoyment of those rights. A ruling from the High Court Division of the Supreme Court of Bangladesh has confirmed this obligation of the State.
Human rights of the migrant workers
The ICRMW defines the rights of migrant workers under two main headings: the human rights of the 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 other rights are applicable only to migrant workers in a regular situation. However, the ICRMW does not exclude illegal workers. It provides provisions for the just treatment of illegal workers. However, the instrument seeks to draw the attention of the international community to the dehumanisation of the migrant workers and members of their families.
In applying human rights to migrant workers (and members of their families), ICRMW guarantees for right to life (Art. 9), prohibition against cruel, inhuman or degrading treatment or punishment (Art. 10), as well as slavery or servitude and forced or compulsory labour (Art. 11). Apart from that, migrant workers are entitled to have right to equality, freedom from arbitrary expulsion (Art. 22), and right to privacy (Art. 14) among others.
With regard to a State Party to the ICRMW, there are two types of responsibilities. For a State which is sending migrant workers, the responsibilities are to allow its citizens seeking employment abroad and their return to the country (Art. 8), pre-departure information on the working conditions and other requirements (Art. 37), facilitate the exercise of the political rights by the migrant workers in the country of origin (Art. 41), provide adequate consular services (Art. 65), regulate recruitment procedures, which includes prevention of abuse in the recruitment practices (Art. 66), and facilitate return of the migrant workers (Art. 67).
For the receiving States (if a party to ICRMW), the responsibilities are to ensure liberty and security of person of the migrant workers (Art 16 and 17), ensure safe and dignified working and living condition (Art. 70), avoid arbitrary deprivation of property (Art. 15), ensure equal status with regard to employment, access to court and tribunals (Art. 18), allow trade union activities (Art. 26), protection of the personal documents (Art. 24), and facilitate family reunification (Art. 44).
Therefore, in the context of Bangladesh, there will be no extra obligation for the State after ratification of the ICRMW. However, it will facilitate to streamline the existing legal framework and institutions. There is a misconception that ratification of the ICRMW might make the labour receiving countries 'unhappy'. This is not the case and also not a justifiable point. Major labour sending countries, like Philippines, have ratified the ICRMW. Concerned experts argue for the immediate ratification of the ICRMW by Bangladesh and adoption of appropriate regulatory regime that will have an extraterritorial reach as envisioned in the Convention. However, this regulatory regime has to be rights-based and to enhance the capacity of the State to manage the migration sector.
The writer is a National Programme Officer (Labour Migration/Trafficking) at the International Organization for Migration (IOM), Mission with Regional Functions for South Asia, Dhaka. Opinion expressed is those of the writer and does not reflect the official position of IOM.
