Author: mopress

As Malcolm X warned long ago, sometimes you have to reject a civil rights framework and move toward human rights. An awareness of human rights developments certainly seems necessary these days when considering issues surrounding migrant workers.

The United Nations Committee on Migrant Workers is “the newest treaty body”, having convened its first meeting in March 2004. Last December (2005) the committee held a day-long conversation that resulted in a brief report worth archiving below [paragraph breaks added in some cases for readability]: ADVANCE UNEDITED VERSION

COMMITTEE ON THE PROTECTION OF THE
RIGHTS OF ALL MIGRANT WORKERS AND
MEMBERS OF THEIR FAMILIES

RESPECTING THE RIGHTS OF ALL MIGRANT WORKERS AS A TOOL TO ENHANCE DEVELOPMENT

A CONTRIBUTION BY THE COMMITTEE ON MIGRANT
WORKERS TO THE GENERAL ASSEMBLY’S HIGH
LEVEL DIALOGUE ON MIGRATION AND DEVELOPMENT

Background

1. On 15 December 2005, the Committee on Migrant Workers held a Day of General Discussion on the theme “Protecting the rights of all migrant workers as a tool to enhance development”. The discussion was attended by representatives from member States, intergovernmental organisations, United Nations departments and agencies as well as non governmental organisations and academic institutions. The written and oral contributions by participants informed the Committee’s reflection on this subject (see CMW/C/SR.25 and 26) and inspired it to prepare this statement as the Committee’s contribution to the High Level Dialogue of the General Assembly on
Migration and Development. The Committee especially acknowledges the work of the ILO, IOM, OHCHR and UNESCO which contribute greatly to a better understanding of a human rights based approach to migration.

Introduction

2. The Committee recalls that the human being is the central subject of development and should be the active participant and beneficiary of the right to
development (Declaration on the Right to Development, adopted by the General Assembly on 4 December 1986).

Migrants are above all human beings with rights, but also active agents of development. The question of migration should thus be approached from a human rights perspective, in conformity with the Universal Declaration on Human Rights and state obligations under core international human rights treaties, bearing in mind that development is not just economic development,
but also entails cultural, social and political development. In this context, the Committee observes that migration stimulates cultural and economic exchanges among nations, which in turn promote peace and understanding in keeping with the
goals of the United Nations.

3. The Committee observes that there is an information deficit on many aspects of the linkage between migration and development. In countries of employment, migrants are often seen as an economic and social burden, and sometimes also as a
religious, social or political threat, whereas the reality shows to the contrary that migrant workers are an essential positive factor in the economy of most developed countries, inter alia by filling gaps in the labour market and rejuvenating populations.

In countries of origin, migration most of the time relieves the pressure on the labour market, remittances often amount to a significant percentage of GDP, and returning migrant workers bring acquired skills back to their country of origin. However,
migration often has prejudicial consequences on the countries of origin, especially with regard to the fragmentation of families and communities and brain drain.

In order to understand better the dynamics of the relationship between migration and development and maximize the benefits of migration, the Committee recommends to the international community that further research be conducted focusing on the question of how migration influences the development of both countries of origin and countries of employment, and in particular the role of human rights in that process.

Promotion and protection of the rights of migrant workers and members of their families

4. The Committee believes that respect of the rights of all migrant workers and members of their families will strengthen the beneficial effects that migration has on development, both in countries of origin and in countries of destination. Protection of human rights and prevention of discrimination in the country of employment are essential factors to enhance the integration of migrant workers and members of their
families, thus enabling them to better contribute to the socio-economic welfare in the country of employment. Adequately upholding economic and social rights in
countries of origin will prevent migration from being a compelled decision and will enhance the beneficial effects of migration on the development in the country of origin.

The Committee is concerned with the situation of irregular migration in the world and urges states to establish mechanisms that would allow the regulation of migration in an orderly manner. The Committee also urges states to increase their efforts to combat smuggling and trafficking of migrants.

5. The Committee wishes to highlight these observations and recommendations based
on rights set forth in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families:

Dissemination of reliable information

6. Access to reliable information is essential for proper preparation of migration, so as to enable migrants to make an assessment of the advantages and disadvantages involved in order to prevent encountering problems in the country of employment and to maximize the opportunities of migration. The availability of reliable information and awareness raising initiatives can have the effect of preventing or curbing the smuggling and trafficking of migrants, especially women and children.

7. Properly informing migrant workers before departure about the conditions in the country of employment is necessary for their preparation of the sojourn away from home. Such preparation will place them in a better position to perform their activity,
contribute to the social and economic development of their country of employment, and facilitate their integration.

8. It is equally important to inform the public in the country of employment about the contributions of migrants to society, in order to counter racism, xenophobia and discrimination.

9. The Committee therefore recommends that

a) States should take an active role in disseminating reliable information about the conditions of migration. They should take effective measures to counter
misconceptions, misleading information and promote knowledge of the human rights of migrants.

b) States of employment should encourage the media to counter tendencies of racism, xenophobia and discrimination by drawing attention to the positive
contributions of migrant workers to the development of the host society.

Control over recruitment agencies

10. Absence of control over recruitment agents, agencies and intermediaries has led to many instances of abuse of migrant workers, who often have to pay exorbitant fees in order to be recruited resulting in heavy debts. In the worst cases, recruitment agencies are a front for trafficking, leading the migrant into forced labour. It is thus of
utmost importance that recruitment agencies are effectively supervised in order to avoid abuse.

11. The Committee therefore recommends that

States should regulate the activities of recruitment and placement agencies, for instance through a licensing system and take effective measures to ensure that these agencies respect migrant workers’
fundamental rig

hts and to ensure that migrant workers have clear and enforceable employment contracts.

Equality in remuneration and conditions of employment

12. Equality in remuneration and conditions of employment on the one hand protects migrant workers from abuse, and on the other hand removes the incentive for employers to resort to irregular recruitment or employment.

13. The Committee therefore recommends that

a) States of employment should take measures to ensure that labour and social standards cover all migrant workers, including those in the most disadvantaged position such as undocumented workers and domestic migrant workers. They should
also take all possible measures to promote the full enjoyment by all migrants of all human rights, including their rights at work.

b) States of employment should ensure that labour legislation is effectively implemented, including through sanctions on employers and other persons, groups or entities that are found in breach of such legislation.

c) States of employment should consider taking measures to control the informal labour market, which is often a pull factor for irregular migration.

d) States of employment should take all adequate and effective measures to eliminate employment of migrant workers in an irregular situation, including,
whenever appropriate, sanctions, including prosecution, on employers of such workers. However, the rights of migrant workers vis-à-vis their employer arising from employment shall not be impaired by these measures.

Protection of migrants’ rights and integration

14. Migrant workers, in particular those in an irregular situation, are among the most vulnerable groups in society, as they often find themselves with no access to social protection networks. They may face a heightened risk of exploitation, racism and discrimination as a result of their migration status, and may be unwilling or unable to make use of available legal remedies for the protection of their rights.

Special attention should be given to protection of their rights, in order to facilitate their integration while respecting their cultural diversity and thus prevent their marginalisation and social exclusion and diminish their vulnerability. The presence in society of large groups of people who have no prospect of integration seriously hampers social cohesion of the society and thus its development.

15. The Committee therefore recommends that

a) States of origin should take measures to provide effective assistance to their nationals abroad, inter alia through consular protection, whenever the human and labour rights of migrants are threatened or impaired.

b) States should ensure that their legislation prohibits the retention of identity documents by employers or recruitment agents; prohibits all systems of forced
sponsorship of migrants, which are designed to ensure control over the migrant throughout the period of residence; and allows all migrant workers, including
undocumented migrant workers, to join trade unions.

c) Special attention should be given to protect the rights of migrant women, in particular domestic migrant workers, in order to diminish their vulnerability.

d) States should avoid linking the residence permit of a migrant worker to a single employer in order to avoid vulnerability to exploitation and forced labour.

e) Government officials should receive training in the application of human rights norms to the situation of migrant workers and members of their families.

f) States should establish effective and accessible channels which would allow all migrant workers to lodge complaints for violations of their rights without
retaliation against them on the ground that they may be in an irregular situation.

g) States of employment should facilitate the reunification of migrant workers with their spouses and their minor children and if reunification is not possible in certain circumstances, allow migrant workers to be temporarily absent without effect
upon their authorization to stay or to work in order to visit their family in the country of origin.

h) Children of all migrant workers should have access to education.

Remedies
16. Many migrants face problems in seeking remedies for violations of their rights by employers because they are not entitled to stay in the country of employment once the employment relation has been terminated. As a result, migrants may return to the
country of origin with less pay than they are due, with difficulties in seeking justice.

17. The Committee therefore recommends that

a) Migrant workers who leave the country of employment should be entitled to outstanding wages and benefits and consideration should be given to allow them to stay in the country for the necessary period of time in order for them to seek a remedy
for unpaid wages and benefits.

b) States should consider entering into bilateral agreements in order to ensure that migrants who return to their country of origin have access to justice in the country of employment in order to claim unpaid wages and benefits.

c) States should consider offering legal services to migrant workers in legal proceedings related to employment and migration.

d) States of employment should allow documented migrant workers the right to transfer to another job during the period of their work permit and should not regard them as in an irregular situation when their employment is terminated prior to the expiration of their work permit.

Migrants’ contact with the country of origin

18. In order to maximize the contribution migrants can make to their country of origin, it is important that migrants remain in close contact with their country of
origin, maintain cultural links and remain abreast of the developments there, in particular through diaspora associations.

19. The Committee therefore recommends that

a) States of origin should consider providing the right to vote in elections to their nationals abroad.

b) States of origin should establish mechanisms that would take the needs of migrant workers into account.

20. Temporary migration schemes may in theory enhance the contribution of migrants to the development of both countries of origin and countries of employment. Nevertheless, it is crucial to remember that, in practice, temporary migrants often find themselves in precarious situations with the risk of having their rights curtailed.

21. The Committee therefore recommends that

a) In pursuing temporary migration projects, States should ensure that the human rights of migrants are protected, including in relation to equality of the
conditions of work and remuneration.

b) Specific arrangements should be put in place to allow temporary migrants to visit their families on a regular basis, where family reunification in the host country is not permitted.

Returning migrants

22. In order to maximize the benefits from migrant workers’ experience and acquired skills, it is important that returning migrants can take home with them their earnings and savings, that they are not unduly subjected to taxes, that they are assisted
in reintegrating into their country of origin, and that they enjoy protection of their rights in the country of origin.

23. The Committee therefore recommends that

a) States should take measures to facilitate the transfer of migrants’ earnings and savings, including the reduction of the costs of remittance transfers.

b) States should consider bilateral agreements in order to avo

id double taxation of all earnings and savings of migrant workers and in order to exempt them from import and export duties in respect of their personal and household effects as well as their professional equipment.

c) States of origin should take adequate measures to facilitate the durable social and cultural reintegration of returning migrant workers.

d) States should consider entering into agreements allowing for the portability of pensions and social security entitlements.

Conclusion

24. Migration has an impact on the development of countries of origin, of transit and of employment. It is the shared responsibility of all States to guarantee the human rights of migrant workers and members of their families. The Committee therefore
recommends that States shall as appropriate consult and cooperate with a view to promoting sound, equitable and humane conditions in connection with international migration of workers and members of their families.

The Committee also calls upon all States parties to take effective measures to implement the rights contained in the Convention. It equally calls upon States that are not yet parties to the Convention, to
consider adhering to the Convention without delay.

That’s what Jorge Bustamante says in the summary of his first annual report as U.N. Special Rapporteur on Human Rights of Migrants.

The Special Rapporteur also refers to the fact that reluctance to recognize the demand for the labour of migrant workers, which is a common factor among host countries, acquires heuristic importance when it becomes clear that there is some relationship between that reluctance and the appearance of anti-immigrant ideologies often tinged with xenophobia and racism. Denial of demand is an important issue as it is one of the main factors that leads to irregular migration, a situation at the core of much of the abuse and numerous human rights
violations suffered by migrants.

By the way, it is the charge of the Special Rapporteur, “To request and receive information from all relevant sources, including migrants themselves on violations of the human rights of migrants and their families;”

See Reports of the Special Rapporteur for Migrant Rights (2006)

Each year, 150,000 minors attempt to cross the border from Mexico into the USA. About 50,000 make the attempt without their parents.

And at Mexico’s southern border, most of the minors who attempt the crossing are unaccompanied. Some of the minors come from as far away as Ethiopia.

These are some of the findings reported by Mexico in its report to the U.N. Committee on the Rights of Migrant Workers. See below for more:
Securing of foreign minors travelling alone

78. The situation of migrant child victims is particularly worrying. Of the roughly 150,000 minors who attempt to cross to the United States each year, either to be reunited with their families or simply to achieve a better standard of living for themselves, some 60,000 are deported. A third of minors who attempt the crossing do so without the company of relatives or with people smugglers.

79. Of approximately 200,000 Central Americans returned to their countries of origin from Mexico in 2004, around 17 per cent were minors, most were travelling unaccompanied and many were returning for the second, third or fourth time.

80. Upon securing an unaccompanied minor, INM alerts the corresponding consulate so that the latter can begin trying to locate the minor’s family and link up with a counterpart institution to DIF in the country of origin that will take charge of the minor. When the consulate informs INM that it has lists of family or institutional contacts and provides a safe conduct for the minor, INM begins the process of returning the minor to his/her country of origin.

81. DIF provides support for housing unaccompanied foreign minors aged under 12 years, provided that they fulfil the norms of the home in which they are placed, do not require special care (mentally handicapped children, among others) and stay only for a short time.

82. For minors who do not fulfil the foregoing norms, INM has built special facilities at the Iztapalapa migrant holding centre to shelter and care for adolescents under the Institute’s protection pending completion of the procedures for returning them to their countries of origin.

83. Travel tickets for minors are supplied mainly by INM, except in some cases where they are supplied by the minors’ own relatives and/or consulates. Each minor is accompanied during the transfer process by a migration official who is responsible for the minor’s safety until he/she is handed over to family members and the corresponding authorities in the country of
origin.

84. INM is currently working to fit out special areas for minors within its different facilities to provide them with the necessary care and protection.

85. As part of inter-agency cooperation measures, on 25 January 2005 DIF and the National School of Social Work of the Autonomous University of Mexico (UNAM) presented a methodology for the care of adolescent migrants, which is a model for the care of minors under INM protection at the Iztapalapa migrant holding centre. This model will be replicated in other
INM migrant holding centres.

86. In some cases, repatriation is delayed because consulates do not receive an immediate response from the institutions responsible for caring for children in their countries.

87. For the Mexican Government, it is important to keep families together. Accordingly, if foreigners travelling with minors are secured, the children remain at the migrant holding centre or else, at the request of their parents or relatives, are sent to DIF until the time comes for their repatriation.

88. On 19 May 2005, the Ministry of the Interior, INM and DIF signed an agreement establishing joint measures for repatriated unaccompanied Mexican and foreign migrant children and adolescents that is a basic tool for providing the necessary comprehensive, differentiated care to migrant minors in the country.

89. The object of this agreement is to lay the bases for cooperation among the participating entities, committing DIF to providing shelter for migrant children under age 12 through the network of public and private shelters participating in the inter-agency programme for border-area children and INM to doing the same for migrant children age 12 and over in migrant holding centres, in keeping with the methodologies, technical advice and training provided by the national DIF scheme.

90. During 2004, the Iztapalapa migrant holding centre housed 4,142 minors: 879 girls (21.3 per cent) and 3,263 boys (78.7 per cent). Of these, 624 (15 per cent) were aged 0 to 11 years and 3,518 (84.9 per cent) were in the 12 to 17 age group.

91. The minors came from 31 countries, the largest numbers coming from Guatemala, Honduras, El Salvador, Ecuador and Brazil. There were also minors from countries outside the region: Eritrea, Ethiopia, Iran, Lithuania and Sierra Leone.

92. To deal comprehensively with the problem of the risks faced by vulnerable minors living in the country’s border areas, principally the northern border, an inter-agency project for the care of border-area minors was set up in 1996 under the Mexico-United Nations Children’s Fund (UNICEF) Cooperation Programme.

93. The purpose of the project is to provide care for such minors and ensure respect for their human rights from the moment when they are secured until they rejoin their families or communities of origin, through the coordinated efforts of the following entities: INM, the Ministry of Foreign Affairs and the National Scheme for the Comprehensive Development of
the Family, under the overall responsibility of the latter.

94. The project operates on Mexico’s northern border and work is currently under way on a specific programme for the country’s southern border, coordinated with the government of the state of Chiapas.

95. The inter-agency project for border-area minors comprises a network of 22 transit shelters throughout the length of the northern border, involving three levels of government and civil society organizations, to provide care for repatriated migrant minors.

96. From January to June 2005, 26,330 minors were repatriated, 3.6 per cent fewer than in the same period of 2004, and 14,108 minors were channelled, according to their characteristics, to the various public and private institutions belonging to the network of transit shelters, to other institutions that care for such minors and directly to their family members, 43 per cent more than in the same period of 2004.

97. It should also be mentioned that the implementing regulations of the General Population Act state that: “The Ministry of the Interior, in coordination with the Ministry of Foreign Affairs and the National Scheme for the Comprehensive Development of the Family, shall promote agreements with state governments and state schemes for the comprehensive development of the family establishing mechanisms for cooperation and coordination in carrying out measures benefiting repatriated migrant minors, in order to guarantee their rights under the law.”

98. Accordingly, the Mexican Government has signed a number of agreements with United States authorities for the safe and orderly repatriation of Mexican nationals. These agreements establish places, times and procedures in each border state for safe and orderly repatriation, emphasizing the care that must be given to people in special circumstances, women who are pregnant and/or accompanied by infants, injured persons and unaccompanied minors.
Repatriated minors travelling alone are channelled directly by INM regional offices to municipal DIF schemes or network shelters.

99. The Beta Groups have also strengthened coordination with centres located in border areas that care for repatriated minors, as in the specific case of the state of Baja California where two centres located in Tijuana and Mexicali have been in operation since February 2004. On 18 November 2004, a c

entre for repatriated minors was also opened in San Luis Rio Colorado, Sonora.

100. The Mexican Government is continuing to set up new modules throughout the length of the border zone so that all minors can be handed over directly to DIF for channelling to the various shelters and handing over to their family members.

101. INM hands over repatriated minors to the DIF staff responsible for the module, where the minor is given a social, medical and psychological evaluation. Investigations are also begun to locate family members so that the minor can be returned to his/her family or community of origin.

102. Through its offices on the northern border, INM takes measures to back up and fulfil the objectives of the programme for the care of border-area minors by means of the following agreements and commitments:

− To reiterate the need to comply with bilateral agreements on orderly repatriation, emphasizing that INM offices may receive minors outside established hours only in cases involving their safety;

− To ensure the necessary compatibility between the operating hours of the National Institute for Migration and those of the social welfare institutions to which minors are channelled;

− To channel minors, at the moment of repatriation, directly to DIF or to the governmental and non-governmental agencies responsible for returning them to their families and places of origin;

− To make minors aware of their rights and discourage them from re-entering United States territory in the future;

− To strengthen the measures taken in the 11 northern border communities where the programme operates.

Measures on the southern border

103. Under the inter-agency programme for the care of border-area minors, efforts are being made to implement a care strategy for migrant minors on the southern border. To that end, a coordination group has been set up, comprising the national DIF scheme, the Ministry of Foreign Affairs, INM, the Institute for Human Development (IDH), the Mexican Refugee Assistance Commission (COMAR) and UNICEF. As part of this strategy, the government of the state of
Chiapas, through IDH, set up a shelter for migrant minors in April 2005 in the city of Tapachula,
Chiapas, to offer comprehensive care to migrant minors. There are also plans to sign a local
inter-agency cooperation agreement among IDH, the national DIF, COMAR and INM to establish procedures for the care of Central American migrant minors in Tapachula, Chiapas.

104. The Agreement for the Safe and Orderly Repatriation of Central Americans on the Borders of Mexico and Guatemala, signed on 2 July 2004, establishes that unaccompanied minors shall be repatriated only through the intervention of officials of the consular and migration authorities of the Central American country concerned, guaranteeing at all times their integrity and safety and respect for their human rights.

105. In July 2004, INM travelled overland from the Iztapalapa migrant holding centre to the Tapachula, Chiapas, migrant holding centre to observe and improve the procedure for repatriating Central American adolescents. It also verified the kind of treatment and care given to adolescents when they were handed over to their migration authorities on the borders of Honduras and El Salvador, where there is no involvement of the authorities responsible for the
care of minors.

106. On 21 November 2004, the construction of the model migrant holding centre in Tapachula, Chiapas, began on a 30,000 sq. metre site in the state with the greatest volume and movement of secured migrants in the country. The centre has a projected capacity of around 960 temporary places and 490 overnight places, with specific areas for men, women, families
and minors. In keeping with applicable international standards, the project includes the construction of dormitories, interview rooms, rooms for medical visits, children’s and recreation areas, dining rooms, a laundry, a library, a social work and psychological care area and offices for CNDH staff. To view the Mexico report in English, French, or Spanish see the preview of an upcoming meeting of the Committee on Migrant Workers (Geneva)

Reviewing the Mar del Pata Plan of Action forged at the Fourth Summit of the Americas in Argentina last year (Nov. 2005) we find the two footnotes most instructive. In both cases, the USA delegation refuses to honor the precedence of international rights for workers and migrant workers.
For example, here is paragraph 18 as agreed to by the Summit of the Americas, emphasis added:

18. To adopt measures to encourage the full and effective exercise of the rights of all workers, including migrant workers, as well as application of core labor standards, such as those contained in the ILO Declaration on Fundamental Principles and Rights at Work and its follow-up, adopted in 1998. Explore ways for the ILO to provide technical advisory services to member states to help them accomplish that objective.

In the following footnote to paragraph 18, the USA prefers the authority of state law to “core labor standards” of the ILO. Instead of “full and effective exercise” of international rights, the USA prefers to “promote respect”:

Paragraph 18: The United States reserves on this paragraph and prefers instead the following text: “Protect and promote the rights of all workers, including migrant workers in accordance with the legal framework of each country, and applicable international law, and promote respect for the ILO Declaration on Fundamental Principles and Rights at Work and its follow-up. Explore ways for the ILO to provide technical advisory services to Member States to help them accomplish that objective.”

And here is the summit’s paragraph on migrant workers with emphasis added:

To strengthen constructive dialogue on international migration, with a view to full recognition of human rights of migrant workers, reduce their vulnerable conditions at work, as well as advocate effective compliance of the principle of equality and non-discrimination at work in accordance with international instruments in this area and, thereby, ensure that migration is an orderly process that benefits all parties and boosts productivity at the global level.

Compare this to the second and last footnote attached to the summit plan by the USA:

Paragraph 20: The United States notes that this language was discussed in connection with the declaration and consensus was achieved, including the United States, on the basis of the following language: “increase Inter-American cooperation and dialogue to reduce and discourage undocumented migration as well as to promote migration processes in accordance with the legal system of each state and applicable international human rights law.”

Activists from the USA who would argue for the precedence of international rights for border affairs, workers, and migrant workers may argue that they have the rest of the Americas on their side. In this case, where do real Americans stand?