ILO STANDARDS ON LABOUR MIGRATIONS

Daniel Martínez
Director for Andean Countries, International Labour Organization (ILO).

I. Overview of International Migrations

1. Extent of International Migrations

International labour migration is currently a global phenomenon and few countries remain completely unaffected by it. However, it is difficult to establish with accuracy the number of migrant workers in the world today. In many countries, particularly countries in the course of transition, incomplete or non-existent data impede the drawing of an accurate global picture of migratory patterns. Even where such data exist, the definitions of such key terms as "economic migrant", "permanent migrant", and "irregular migrant" are by no means universally accepted, and the systems by which the data were collected often differ widely from one country to another, reducing the comparability of statistics. Finally, data on irregular migration and illegal employment are sparse even in the most sophisticated of data collection systems.

It is clear, however, that international labour migration has grown considerably. The ILO recently estimated that nearly 100 million people (migrant workers and their families) are currently residing, legally or illegally, in a country other than their own.

Table 1
Number of people in a country other than their own

Source: ILO estimates.

Not only has the total number of individuals involved in the migration process risen, the number of countries from which they are emanating and to which they are heading has also grown. In 1970, 64 countries were major senders or receivers of migrant labour and by 1990 this figure had increased to over 100, taking into account the dissolution of the former Soviet Union and Yugoslavia. Italy, Japan, Malaysia and Venezuela are among the new major receiving countries, and Bangladesh, Egypt and Indonesia are among the new major senders.

2. Direction of International Migration

The diversification of the countries that are affected by international labour migration has entailed the development of regional migration patterns with disparate causes and consequences. A few examples of the most pertinent regional developments may serve to illustrate the extent to which the direction of migration has changed in recent years.

The first example is the economic and political transformation of the countries of Central and Eastern Europe, coupled with ethnic and social tensions throughout the region, with the effect that countries that previously were affected by migration merely as transit countries have become migrant-receiving countries in their own right. As a result, many of these countries find themselves confronting vast immigration, flows with little or no legislation or infrastructure to cope with the subsequent social and economic consequences. For example, the Government of Azerbaijan reported that the number of non-nationals (including asylum seekers and displaced persons) who have entered the country in recent years is approaching 1 million, and that it has had to develop measures rapidly to deal with this new phenomenon. Many other countries of the region indicated similar concerns.

A second development which has transformed international migration is the increasing tendency in many traditionally migrant-receiving countries to develop preferential immigration policies as a consequence of the rise in domestic unemployment rates. Such policies tend to favour migration from within a regional grouping, or from countries with which the region has particular ties, while simultaneously making it more difficult for nationals of other countries to migrate to the region.

A third more recent development is the 1997-98 Asian financial crisis. The crisis and policy measures initiated in response to it have affected the economies of the region to varying degrees and the consequences for migrant workers of this region have been severe and are likely to deteriorate further.

According to an ILO technical report on the social impact of the Asian financial crisis, which was discussed at the High-Level Tripartite Meeting on Social Responses to the Financial Crisis in East and South-East Asian Countries (Bangkok, 22-24 April 1998) the impact of the crisis on labour migration is expected to have several dimensions: (a) reduced net immigration because of the slowing down of their economies and immigration restraints imposed by their governments; (b) new admissions will be cut down and what will happen to the people not admitted is far from certain as there is no certainty that they will simply pack up and go home; and (c) with declining employment opportunities at home and increasing inter-country wage differentials there could be a build-up of emigration pressures in one or more of the worst-affected countries. It is already being anticipated that trafficking in clandestine labour migrants will rise as a consequence and will entail heavy private and social costs, both in the countries of origin and those of destination.

Globalization has had a profound effect upon international labour migration. The growing interdependency of countries, facilitated by technological developments, means that cross-border transactions in goods, services and capital occur much more frequently and with less disruption than before. Coupled with the growth of communication networks and developments in international transport, globalization has had the effect that vastly increased numbers of people have begun, and will undoubtedly continue, to view international migration as a means of escaping poverty, unemployment and other social, economic and political pressures in their home countries.

3. Nature of International Migration

Regional and global developments in migration have resulted in significant changes in the nature of international migration. Whereas at the time of the adoption of the 1949 instruments permanent migration for the purposes of settlement and temporary migration were clearly demarcated, the oil crisis that hit the major European receiving countries in the early 1970s blurred this previously clear distinction. As borders were tightened and a "freeze" was placed on immigration as a result of the crisis, these same countries found that many migrants who had been recruited for temporary employment in fact settled in the host country and took the opportunity to reunite with their families there. This transformation from temporary to permanent residence brought with it a host of social problems which have had to be addressed, in particular as second and even third generations of non-nationals were born into the country.

As the freeze on immigration for permanent settlement has, with few exceptions, remained in force for many major migrant-receiving countries, time-bound migration, in various forms, has become the only means of migrating for many people. Many governments reported to the ILO that some provisions of its major instruments are no longer of relevance to the national situation, as permanent migration no longer exists. The few countries, such as Australia, Canada and New Zealand, that continue to accept migrants for permanent settlement have also changed their immigration policies, and temporary migration has become increasingly favoured in these countries as well. For example, in Canada, the number of temporary worker visas quadrupled between 1981 and 1990 and the average annual inflow of temporary workers exceeded the number of permanent immigrants entering under employment schemes by two and a half during this period. Finally, many of the new migrant-receiving countries of the Pacific Rim and Central and Eastern Europe also appear to be adopting policies favouring temporary or project-tied migration, and time-bound migration schemes have been set up in most of these countries.

The profile of temporary migrants has also changed. While major temporary migration flows in the past consisted of semi-skilled workers emigrating to take up jobs that nationals would not undertake, contemporary immigration policies tend to focus upon highly skilled migrants. The recent adoption by New Zealand of the so-called "points system" of immigration, by which only highly qualified and economically desirable migrants are recruited, illustrates the degree of selectivity that migrant-receiving countries can now afford to exercise over migration flows. The exception to this rule continues, however, to be seasonal workers, primarily recruited for agricultural work in almost all regions of the world. These migrant workers are among the most vulnerable, often working in conditions vastly inferior to national workers, in many cases with little reward.
Another aspect to be taken into consideration is the flexibility that characterizes today's labour market and affects all workers, including migrant workers. Temporary migrant workers who, by definition, occupy precarious positions, frequently change from one job to another and from one category to another, for example: self-employment, contract work and salaried work, etc. This makes it all the more difficult to categorize workers exclusively by the nature of their employment.

The nature of recruitment practices has also been dramatically transformed. The decline in government-sponsored schemes for group migration, as well as a general decline in the role of state leadership in the world of work, left a vacuum which was rapidly and efficiently filled by private agencies recruiting workers for employment abroad. For example, in relation to labour migration between Asian countries and the Gulf States, it has been suggested by the ILO that as much as 80 per cent of all foreign job placements have been handled by private recruitment agents. Many countries in Asia and in the transition countries of Central and Eastern Europe, in particular, have seen a proliferation of private recruitment agents.

4. Irregular Migration

An examination of the current immigration policies of most major migrant-receiving countries may lead one to believe that migration is primarily a time-bound phenomenon affecting only highly qualified foreign workers. However, this is not necessarily reflected in practice as the majority of migrant workers occupy semi-skilled or unskilled positions, often under illegal conditions. Irregular migration in recent years appears to have taken on a new and even more troubling character. It should also be noted that in many countries the illegal employment of migrants is not necessarily a temporary phenomenon and that many migrants may live and work in an irregular situation for several years and in some cases even permanently. The irregular entry, employment and residence of foreign workers has emerged as a disturbing trend, and one which national governments and the international community have attempted to address.

Estimates of irregular migration are, by the very nature of the phenomenon, imprecise, and wildly disparate figures have been attributed to it. The most commonly cited figure, however, is in the region of 30 million persons worldwide. Individuals who migrate or reside in violation of immigration and employment regulations are highly likely to find themselves in positions where they are vulnerable to abuse and exploitation. Sub-standard working and living environments, slave-like working conditions, confiscation of travel documents, and non-payment of wages and other benefits at the hands of the employer, as well as potentialyl inhumane treatment at the hands of the authorities if caught, all too commonly dominate the lives of irregular foreign workers.

5. Female Migrant Workers

The extent to which women engage in international migration is not generally known. The gender-specific language of the instruments from both 1949 and 1975 (such as the specific reference in Article 6 of Convention Nš 97 to "women's work" and Paragraph 15 (3) of Recommendation Nš 86, where the family of a migrant worker is defined as "his wife and minor children") indicates that the typical migrant was male, and traditional stereotypes view "him" to be young and economically motivated.

Women, if involved in the migration process at all, were perceived to do so by accompanying their spouse in the name of family reunification. While this undoubtedly still accounts for much migration, recent estimates on female migration indicate that women workers are migrating on almost the same scale as men, accounting for almost 48 per cent of migrants worldwide. It appears that there has been a substantial increase in young, unmarried women migrating to find employment for themselves. In countries such as Indonesia, women account for as much as 78 per cent of workers migrating through official channels.

Often by the very nature of the work they undertake, women can be particularly vulnerable when employed for work outside their own countries. In recent years the plight of female domestic workers, particularly those employed in the Middle East, has come to public attention. In 1992 the situation in Kuwait had become so desperate that around 250 domestic workers had taken refuge in their countries' embassies, many of them alleging that they had been raped, abused or cheated by their employers. The situation of both male and female domestic migrant workers is all the more a cause of concern given that in many countries their employment is not regulated by labour legislation.

Another concern is the vulnerability of women recruited for employment outside their countries as "sex workers". While some migrate specifically for this purpose, a vast majority are forced into prostitution upon their arrival in the host country. In many cases, women are recruited for jobs as receptionists, hostesses or barmaids, and are even issued with legitimate permits to undertake such work, yet upon their arrival in the host country they find themselves working in the sex industry. Often the confiscation of travel documents, large debts which may be owed to the recruiter and the threat of being reported to the police leave these women, far from their homes and unfamiliar with customs and language in the host country, in an extremely vulnerable position.

II. International Standards in the Field of Migration

1. United Nations Instruments in the Field
of International Migrations

Following a lengthy drafting process, on 18 December 1990 the General Assembly of the United Nations adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This instrument acknowledged and built upon the provisions contained in existing ILO Conventions, and in many ways went beyond them. It extended to migrant workers who enter or reside in the host country illegally (and members of their families) rights which were previously limited to individuals involved in regular migration for employment, going beyond those elaborated in Part I of ILO Convention Nš 143. While the long-term objective of the United Nations Convention is to discourage and finally eliminate irregular migration, at the same time it aims to protect the fundamental rights of migrants caught up in such migration flows, taking into account their vulnerable position. Other significant aspects of the Convention include the fact that ratifying States are not permitted to exclude any category of migrant worker from its application, the "indivisibility" of the instrument, and the fact that it includes every type of migrant workers, including those which are excluded from existing ILO instruments.

This new Convention has, however, received but a lukewarm welcome from States. While 20 ratifications are required for the Convention to come into force, as of 11 December 1998, only nine States had ratified or acceded to it. Further, as is the case with ILO instruments, the majority of States parties to this Convention are, on the whole, migrant-sending States that, while extremely important in terms of protection of migrants prior to departure and after return, hold little influence over the daily living and working conditions of the majority of migrant workers. A Global Campaign for Ratification of the Convention on the Rights of Migrants was launched in Geneva in 1998. Pending its entry into force, other United Nations instruments are of more immediate relevance to the protection of migrant workers.

The 1990 Convention is the only United Nations instrument of direct relevance to migrant workers, but the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is also relevant, although to a lesser degree. The ICERD, currently one of the most widely ratified of the United Nations human rights conventions, binds States parties to it to outlaw discrimination on the grounds of race, colour, descent, or national or ethnic origin against all individuals within the jurisdiction of the State and to enact sanctions for activities based upon such discrimination. However, the Convention does not apply to "distinctions, exclusions, restrictions or preferences made by a State party [...] between citizens and non-citizens", a point which has been reiterated on a number of occasions by members of the committee set up to monitor application of the ICERD. That is to say, discrimination on the grounds of nationality, a type of discrimination to which migrants by definition are extremely vulnerable, is not outlawed by the Convention.

Several other United Nations instruments, while having no direct relevance to migrant workers, are of potential importance in terms of protecting them from discrimination and exploitation on grounds other than their non-national status. These include the Convention on the Elimination of All Forms of Discrimination against Women (1979); the International Covenant on Economic, Social and Cultural Rights (1966); the International Covenant on Civil and Political Rights (1966); the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); and the International Convention on the Rights of the Child (1989).

2. Regional Migration Instruments

The management of international migration flows has also in recent years featured highly on the agendas of a number of regional and subregional bodies. Agreements and institutions with the aim of regulating the entry, stay, treatment and departure of non-national workers have become well established in most regions of the world. While the variety of instruments and activities operating at the regional or subregional level is too wide to be analysed in much detail in this survey, some of the most prominent initiatives merit attention.

In Europe, the Council of Europe's instruments in the field of labour migration are the most advanced, covering general human rights as well as more specific agreements relating to migrants and migrant workers. Of the former, the European Convention on the Protection of Human Rights and Fundamental Freedoms (1950), and the European Social Charter (1961) and its Additional Protocol (1988), include a number of provisions relating to individuals living and working in countries of which they are not nationals, covering the rights to privacy, family life, the right to engage in a gainful occupation in another member's territory, provision of information to migrant workers, facilitation of the migration process, equality of treatment of nationals and non-nationals in employment, the right to family reunification, and guarantees against expulsion, etc. These instruments, however, as with all Council of Europe instruments, are relevant only to migrants who are citizens of Council of Europe Member States, and their application is conditional on reciprocity.

Council of Europe instruments dealing specifically with migrants and migrant workers include the European Convention on the Legal Status of Migrant Workers (1977), which applies to nationals of a Contracting Party who have been authorized by another Contracting Party to reside in its territory in order to take up paid employment. This Convention includes provisions relating to the main aspects of the legal status of migrant workers and especially to recruitment, medical examinations and vocational tests, travel, residence and work permits, family reunion, housing, conditions of work, transfer of savings, social security, social and medical assistance, expiry of the contract of employment, dismissal and re-employment, and preparation for return to the country of origin. Other instruments dealing with different aspects of the life and work of migrants include the Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality (1963) and the Convention on the Participation of Foreigners in Public Life at Local Level (1992).

The Commission of the European Communities (EC) has also developed a significant body of regional norms with the aim of regulating intra-regional migration flows and treatment of non-national workers. In this regard, the focus of the EC has been primarily upon economic aspects of migration and integration internal to the region, although it has increasingly devoted attention to more social aspects. Among the most important regulations are: (a) Regulation Nš 1612/68/EEC, dealing principally with equality of treatment in respect of access to employment, working conditions, social and tax advantages, trade union rights, vocational training and education, it also lays down guidelines for family reunification; and (b) Regulation Nš 1408/71/EEC relating to the application of social security regimes to employed persons and the self-employed and to members of their families who move within the Community (modified by Regulation No. 1606/98/EC, 29 June 1998).

The basic document determining in more detail the treatment of non-nationals within the region is the Community Charter of the Fundamental Social Rights of Workers (1989). While not legally binding in itself, this document lays down guiding principles for the treatment of Community nationals in the field of employment. Directives emanating from the EC cover such issues as freedom of movement and residence, right to remain in the territory of another Member State after employment has been terminated, education of children of migrant workers, issues of health and safety of migrant workers, and the right to vote and stand in elections of other Member States. While the applicability of these instruments is limited in that they deal solely with migration internal to the region, it has been argued that the recent enlargement of the European Union, the number of countries still wishing to enter the region and the development of other comparable trade zones worldwide has served to increase their significance beyond the geographic boundaries of the region.

In Africa, again the regional standards can be divided into those that deal with human rights in general and those that have specific relevance to migrant workers. Of the former, the African Charter on Human and Peoples' Rights (1981) is the most significant. It protects individuals from discrimination based upon a number of grounds, and prohibits the mass expulsion of non-nationals. Of the instruments relating to labour migration, it should be pointed out that, as with the EC, most standards are focused primarily upon economic integration, touching on social and cultural aspects of migration as secondary issues.

On the subregional level there are a number of instruments, often little known and utilized, which tackle the problems specifically related to intra-regional migration. Of these, in 1975 the Economic Community of West African States (ECOWA) adopted the Treaty of Lagos, which guarantees freedom of movement and residence, as well as equality of treatment in relation to cultural, religious, economic, professional and social activities between nationals of all ratifying States. The 1979 Protocol to this Treaty entitled all citizens of the ECOWA to enter, reside and settle in the territory of Member States. The Central African Customs and Economic Union adopted an agreement in 1973 which recognizes the principle of non-discrimination on the grounds of nationality in employment, remuneration and other working conditions, on the condition that individuals migrating for employment are already in possession of a job offer. This agreement was supplemented in 1985 with a social security convention on migrant workers. In 1978 the Economic Community of the Great Lakes' Countries adopted a convention on social security concerning Community nationals who have worked in another member country and, in 1985, a convention on the free movement of people, which is specified as a process to be achieved over a period of up to 15 years.

In the Arab region, the fundamental document relating to human rights, the Cairo Declaration on Human Rights in Islam, was adopted by the Organization of the Islamic Conference in 1990. It guarantees for all individuals freedom from discrimination based on various grounds. Specifically in the field of migration, the Agreement of the Council of Arab Economic Unity (1965) provides for freedom of movement, employment and residence and abolishes certain restrictions upon movement within the region. In 1968, the Arab Labour Organization developed the Arab Labour Agreement, intended to facilitate labour movement in the region, and giving priority within the region to Arab workers. These same provisions were reiterated in the 1970s with the strengthening of measures to retain jobs for Arab workers and to deport non-Arab workers from the region.
This focus on reducing the participation of external migrants from the Arab labour market is apparent throughout the 1980s, with the adoption of the Strategy for Joint Arab Economic Action and the Charter of National Economic Action. The former determines that "Arab manpower must be resorted to increasingly in order to reduce dependence on foreign labour", while the latter breaks down legal barriers between nationals and migrants from other Arab States, providing for freedom of movement and equality of treatment. The Arab Declaration of Principles on the Movement of Manpower (1984) stressed once more the need to give preference to Arab nationals before nationals of third countries, calling simultaneously for the strengthening of regional bodies and intra-regional cooperation.

The countries of Asia and the Pacific have not yet established any regional agreements or institutions dealing specifically with either human rights or migrants' rights, though the subject has been broached in discussions of the Asian Pacific Economic Cooperation Forum (APEC).

In the Americas the regional standards in the field of human rights in general are the Organization of American States' (OAS) American Declaration on the Rights and Duties of Man (1948) and the 1969 American Convention on Human Rights both guarantee freedom from discrimination. In Latin America, the Southern Common Market (MERCOSUR) Pact of 1995 is expected to formalize the current informal flow of workers across the internal borders of the region, while signatories to the Cartagena Agreement or Andean Pact approved in 1977 the creation of the Andean Migration for Employment Instrument (Decision 116) and in 1996 the creation of the "Andean Migration Card" which aims to facilitate migration flows in the subregion (Decision 397). The North American Free Trade Agreement (NAFTA) deals only marginally with migration issues through the North American Agreement on Labour Cooperation and also in the body of NAFTA itself, which permits the entrance of a certain quota of investors, highly qualified personnel and executives of multinational corporations between signatory States.

3. Bilateral Agreements

Increasingly, many States are turning to bilateral agreements to regulate the most significant emigration and immigration flows. The advantages of such agreements are that they can be adapted to the particularities of specific groups of migrants, and that both the sending and the receiving State can share the burden of ensuring adequate living and working conditions as well as monitoring, and more actively managing, the pre- and post-migration processes.

The use of bilateral instruments as a means of regulating migration was first developed in the 1960s when the countries of Western Europe concluded a series of bilateral agreements with countries which were keen to provide a source of temporary manpower. Belgium, France, the former Federal Republic of Germany, Netherlands and Switzerland, at one time or another, all concluded agreements with one or more labour-supplying countries along the Mediterranean rim.

In the 1970s the Middle East emerged as a new migrant-receiving region, and attempts were made to secure similar agreements between, for example, Bangladesh and the Islamic Republic of Iran, Iraq, Libyan Arab Jamahiriya and Oman; and Pakistan with Jordan; and the Philippines with Gabon, Islamic Republic of Iran, Iraq and Jordan.
Since then, bilateral agreements regulating migration have developed throughout the world. Of the regions, Asia appears to have had the least success in the regulation of migration flows through bilateral agreements and notwithstanding the agreements concluded between the Philippines and some Member States of the European Union, no bilateral agreements have been signed between Asian sending countries and receiving countries in other regions, despite their efforts.

The ILO has consistently recommended the formulation of bilateral instruments as a means of managing migration flows more effectively. The annex to Recommendation Nš 86 provides an elaborate model of a bilateral agreement and several provisions of the two relevant Conventions stress the role of bilateral cooperation in the field of migration.


III. ILO Standards Relating to Labour Migrations

1. Main ILO Standards¹ on Labour Migrations

The International Labour Conference had a twofold aim in view when it adopted the instruments on migrant workers. The intention was to regulate the conditions in which the migration process takes place, on the one hand and, on the other, to provide specific protection for a very vulnerable category of workers. To achieve this, the standard-setting activities of the ILO in this area have been concentrated in two main directions.

First, the Conference has endeavoured to establish the right to equality of treatment between nationals and non-nationals in the field of social security and at the same time to institute an international system for the maintenance of acquired rights and rights in the course of acquisition for workers who transfer their residence from one country to another. It has accordingly adopted four Conventions and two Recommendations: the Equality of Treatment (Accident Compensation) Convention (Nš 19), and Recommendation (Nš 25), 1925; the Maintenance of Migrants' Pension Rights Convention, 1935 (Nš 48); the Equality of Treatment (Social Security) Convention, 1962 (Nš 118); and the Maintenance of Social Security Rights Convention, 1982 (Nš 157), and Recommendation (Nš 167), 1983. The main objective of the Conference in adopting these standards has been to limit progressively the scope of certain restrictive clauses based on the method of financing social security, and to mitigate the effects of reciprocity clauses for developing countries.

Second, the Conference has endeavoured to find comprehensive solutions to the problems facing migrant workers and has adopted a number of instruments to this end (including those containing only a few provisions relating to migrant workers). In 1926 it adopted the Inspection of Emigrants Convention (Nš 21), and the Migration (Protection of Females at Sea) Recommendation (Nš 26); in 1939 the Migration for Employment Convention (Nš 66), and Recommendation (Nš 61), and the Migration for Employment (Cooperation between States) Recommendation (Nš 62); and in 1947 the Social Policy (Non-Metropolitan Territories) Convention (Nš 82). Convention Nš 66 never entered into force due to lack of ratifications; it was accordingly decided to revise it in 1949, when the Migration for Employment Convention (Revised) (Nš 97) and Recommendation (Revised) (Nš 86) were adopted. In 1955, the Conference adopted the Protection of Migrant Workers (Underdeveloped Countries) Recommendation (Nš 100); in 1958, the Plantations Convention (Nš 110) and Recommendation (Nš 110); and in 1962, the Social Policy (Basic Aims and Standards) Convention (Nš 117). Finally, in 1975, the Conference supplemented the 1949 instruments by adopting the Migrant Workers (Supplementary Provisions) Convention (Nš 143) and the Migrant Workers Recommendation (Nš 151).

It should be noted that the Working Group on Policy Regarding the Revision of Standards has proposed that Conventions Nš 21 and 48 be denounced and the more recent Conventions be ratified instead (Nš 97 and 157); other instruments have been shelved with immediate effect (Nš 66) pending the outcome of consultations with the States parties by the ILO (Nš 82). As regards Convention Nš 19, the Governing Body has encouraged States to examine the possibility of ratifying the more recent Convention Nš 118. It also recommended ratification of Convention Nš 110 and decided that there was no need to envisage the revision of Convention Nš 117 for the time being.

¹ The complete texts of the above norms are available through the International Labour Organization's web page: http://www.ilo.org

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