Keywords: protection of human rights   migrant workers   inter-national convention

 

International migration is a long- standing phenomenon in which people come to live in foreign countries in order to earn a living or seek higher paid jobs. There are no regions or countries in the world without such migrants. The difference today is that the number of international migrants far exceeds that in any historical period. Under the circumstance of globalization, highly developed modern means of transport and communication and the resulting convenience have made international migration more popular, which is intensified by the imbalance in development among countries.

 

More and more people from underdeveloped countries are knocking on the doors of developed countries in search of better life prospects. Currently, more than 232 mil-lion migrants worldwide¹ come from developing countries, of which 59 percent live in developed areas, which account for about 11 percent of the total population in these areas.² Traditional international migration usually flows from developing countries to developed countries, but it is now no longer a unique phenomenon between North and South as the number of migration works between South-South countries is rising. The number of migrants employed in high-income developing countries is growing substantially, with the number in Asia being most prominent (41 percent).³

 

“Migrant workers” refers to persons who will, are or have been engaged in paid activities in a country other than their home country.⁴ There are two core elements in the definition: non-nationality and paid services. Whether the relevant personnel “have a document or a normal identity” or not is not the focus.⁵ The following persons are not classified as “migrant workers”: (1) people dispatched or hired by international organizations and agencies, or sent or employed abroad by a country to engage in official duties; (2) people sent or employed abroad by a country, or sent abroad by a country to participate in development programs and other cooperation programs; (3) people who live in a country other than their country of nationality as an investor; (4) refugees and stateless persons; (5) students and trainees; (6) seafarers haven’t received employment in the country of employment but are engaged in paid activities and workers on offshore installations.⁶

 

 

International migration have made a significant contribution to poverty reduction. In 2013, the income of migrants coming from countries with low human development index to countries with a high human development index increased on average 15 times. Remittances from migrants have increased family incomes, helped pay for edu-cation and medical expenses, and doubled the enrollment ratio.⁷

 

International migration plays an important role in global economic growth. For countries of origin of developing countries, remittances are the most direct and obvious benefit of international migration, an important part of GDP, and an important source of foreign exchange income.⁸ The value of international migrants to their countries of origin is not only measured by money. Their skills and knowledge also contribute greatly to technology transfers and institutional knowledge transfer. On the other hand, migrant workers also make great contributions to their countries of employment. They bring new skills, knowledge and vitality to the countries in which they work and, nevertheless, help optimize their population structures, solving labor shortages and other problems. With the aging of the population in many developed countries, young laborers from developing countries can fill the gaps in labor market.

 

International migration has promoted the integration of global culture. It is a fac-tor that results in the disintegration of traditional economic and social structures in the process of globalization. For migrants’ countries of origin, “families and local society experience profound and lasting impacts, and the entire country may form an ’immi-grant culture’”, just like Italy half a century ago, or the Philippines today. Similarly, countries of employment also undergo dramatic changes. Migrants have promoted the exchange of ideas and culture. While being gradually influenced and even assimilated by the mainstream culture of their countries of employment, they also permeate their own unique cultural attributes to their countries of employment. Their presence will inevitably form a diversified ethnic culture within national states, change the nations’ cultural identities, blur traditional boundaries, and promote integration.

 

International migration may affect social relations, national politics and interna-tional relations. It has made positive contributions to inclusive growth and sustainable development.⁹ However, it involves many factors and is multi-faceted, and is there-fore a controversial topic.¹⁰ Countries of origin are vulnerable to experiencing a “brain drain”, especially in important sectors such as health care and education. In countries of employment, international migration may cause social tensions, especially when migrants are flooding in. With the increasing scale of international migration, na-tionals of countries of employment see migrants as a threat to their own way of life and culture. International migrants are also regarded as competitors for limited local resources. Some people believe that international migrants pose a threat to their right to work. Citizens of countries of employment may even regard migrants as a threat to national security and social stability. Criminals and terrorists may take advantage of migrant workers.. Under these circumstances, contradictions between migrants and citizens of countries of employment will erupt. This often leads to the consequenc-es that people gradually treat immigration from a political perspective, and that the boundaries between immigration policies and refugee and counter-terrorism policies begin to become blurred, which results in more serious national closure caused by so-cial economic self-opportunism and xenophobia over a long time. Therefore, countries have revised their immigration policies and built protectionist barriers.

 

 

Freedom of migration is a human right and an indispensable condition for the sur-vival and development of individuals. Therefore, the freedom of migration has been confirmed as a fundamental human right under international human rights law. Article 13 of the 1948 Universal Declaration of Human Rights stipulates “Everyone has the right to freedom of movement and residence within the borders of each state. Every-one has the right to leave any country, including his own, and to return to his country.” Article 12 of the 1966 International Covenant on Civil and Political Rights stipulates: “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. No one shall be arbitrarily deprived of the right to enter his own country.” Article 13 of the covenant then states: “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” In addition, Article 2-4 of the Additional Protocol to the European Con-vention on Human Rights, Article 1 of the Seventh Additional Protocol to the Europe-an Convention on Human Rights, Article 229 of the American Convention on Human Rights, and Article 12 of the African Charter on Human and People’s Rights confirm this right. International migration is based on the premise that everyone enjoys free-dom of migration.

 

Migrant workers’ human rights are more vulnerable. They come to another country as aliens. They usually do not understand the language, laws and customs of the country, and lack social relations, which are not conducive to their understanding and protection of their rights. They are more vulnerable to exploitation and are often blamed for taking jobs away from the citizens in their countries of employment, con-suming social benefits, and increasing local crime rates, which make discrimination, exclusion and violence against migrant workers even worse. The human rights of ir-regular migrant workers are particularly severely violated. They are hired because of their problematic identity. Their employers enjoy illegal benefits, but they themselves are subject to exploitation and abuses. They do not have access to proper health care and decent accommodation, are unable to exercise their right to freedom of association, lack access to legal public services, or dare not to obtain such services for fear of exposing their identity.¹¹

 

 

On December 18, 1990, the UN General Assembly adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (hereinafter referred to as the “Convention”), which entered into force on July 1, 2003. As of December 31, 2017, there were 51 state parties. This is the first international convention adopted by the UN to protect the rights of migrant workers and members of their families. It is a milestone in this respect.

 

The Convention is applicable to all migrant workers and members of their fami-lies, without emphasizing whether their identities are lawful not. Even undocumented or irregular migrant workers are protected. Prior to the adoption of the Convention, there was not a universally recognized or general legal concept of “migrant workers” in international laws, so that in many cases, irregular international migrants were considered as neither refugees nor migrant workers. They are outside the protection of laws and their human rights are most vulnerable to violations. Therefore, a general definition of migrant workers is consistent with principles of human rights protection. Compared with irregular migrant workers, the rights of migrant workers with normal identities are more likely to be realized, so more attention should be paid to the rights of irregular migrant workers.¹²

 

The Convention is also applicable to the entire process of migration. Its pro-tection of the rights of migrant workers and members of their families runs through the entire migration process, not just the period when they work in another country. This process includes preparing for migration, leaving country of origin or habitual residence, transiting and entire periods of stay, engaging in paid activity in country of employment, and returning to country of origin or habitual residence.

 

The Convention requires state parties to respect and ensure that while enjoying the rights established in the Convention, all migrant workers and members of their families within their territory or under their jurisdiction shall not be discriminated against due to gender, race, colour, language, religion or belief, political opinion or other opinion, national, ethnic or social origin, nationality, age, economic status, property, marital status, birth or other status.¹³ In the light of the different situations of migrant workers, the Convention lists several separate categories of rights to provide different degrees of protection. (1) Part III of the Convention sets out the human rights enjoyed by all migrant workers and members of their families, including irregular migrant workers and members of their families.¹⁴ Most of these rights are the same as those protected by the core human rights treaties of the UN, including the Interna-tional Covenant on Civil and Political Rights and the International Covenant on Eco-nomic, Social and Cultural Rights. Regarding the right to personal liberty and security for migrant workers and the right to humane treatment for migrant workers that are deprived of liberty, the Convention sets more suitable regulations based on the specif-ic circumstances of the holder of such rights. The specific rights of migrant workers that are not explicitly protected under other human rights conventions but are cov-ered by the Convention include: unauthorized confiscation or destruction of personal documents, specific procedural safeguards in expulsion procedures, and consular or diplomatic protection and assistance. Among the economic, social and cultural rights enjoyed by all migrant workers, the right of migrant workers to be respected for their cultural identity and their right to reap their gains and savings when ending their stay in countries of employment are unique to the Convention. In addition, the third party also stipulates the right to information. The enjoyment of these rights is not influenced by the regular or irregular identity of migrant workers. (2) Other rights enjoyed by mi-grant workers with a document or have a normal identity and their family members. In addition to the above-mentioned rights, migrant workers with a document or having a normal identity and their family members also enjoy the rights listed in Part IV of the Convention.¹⁵ (3) The rights of special categories of migrant workers with a document or have a normal identity and members of their families, including border workers, seasonal workers, seafarers, workers for offshore units, travel workers, project work-ers, and self-employed workers.¹⁶ These special categories of migrant workers and members of their families, in addition to enjoying the rights listed in Part III of the Convention, are also entitled to some of the rights listed in Part IV of the Convention based on their respective characteristics.¹⁷ The Convention requires state parties to respect and ensure that all migrant workers and members of their families within their territory or under their jurisdiction enjoy the rights established in the Convention, and shall not be discriminated against due to their gender, race, colour, language, religion or belief, political opinion or other opinion, national, ethnic or social origin, nationali-ty, age, economic status, property, marital status, birth or other status.¹⁸

 

Ⅳ. Current Challenges in and Countermeasures to the Protection of the Human Rights of Migrant Workers
 

The protection of migrant workers’ human rights is facing unprecedented chal-lenges. The world today is facing political, moral, economic and social crises closely related to international migration. The negative impact of this round of globalization on the large-scale cross-border movement of goods and people and on the living stan-dards and job opportunities of countries of employment, unprecedented terrorist activ-ities, and large-scale refugee flows and their persistent threats have provoked strong political repercussions for free trade and migration of nationals to other countries for employment. After the 9/11 terrorist attacks on the United States, the public’s concern for their own safety and social security increased unprecedentedly in many countries. Most of the terrorists in the 9/11 attacks were foreign immigrants. Although not all foreign immigrants are terrorists and not all terrorists are foreign immigrants, the 9/11 incident created an atmosphere that exacerbated mistrust and suspicion of migrant workers by nationals of countries of employment as the majority terrorists are coin-cidently immigrations. With the outbreak of the international financial crisis in 2008, the situation of migrant workers became even worse. Xenophobia, anti- immigrant sentiment and related discrimination caused by the economic downturn in developed countries made migrant workers the first to lose their jobs. In recent years, extreme terrorist attacks and large-scale influx of refugee into Europe have greatly exacerbat-ed the exclusion and even hatred toward migrants by people in European countries, which has result in a rise of populism. In the best case, migrant workers are equated with economic migrants. In the worst case, they are equated with fraudsters, criminals and even terrorists, which makes migrant workers more vulnerable to racism, xeno-phobia, discrimination and intolerance.

 

As for the limitations of the Convention, from the theoretical and logical perspec-tive, the human rights of migrant workers have been established by the Convention and can be guaranteed through the implementation of treaty obligations in the Con-vention by state parties. However, the reality is that there is a huge difference between the rights guaranteed by the Convention and the realities facing migrant workers. A very important reason for this situation is that the Convention’s influence is too low. As of December 31, 2017, since the UN General Assembly adopted the Convention in 1990, it had only 51 state parties, which is few compared with other core UN human rights treaties.¹⁹ Moreover, state parties are mainly developing countries and small countries as origin of migrant workers, and no developed country has ratified the Con-vention.²⁰ The lack of participation of major powers, especially major recipients of mi-grant workers such as the US, Canada, Australia, New Zealand, Japan, and countries in Western Europe, poses direct challenges to the effectiveness of the Convention and making it binding. The mechanism established by the convention is actually in name only.

 

Regarding the normalization of the identity of migrant workers and their family members in countries of employment, although the scope of application of the Con-vention includes irregular migrant workers, its guiding ideology is to prevent, reduce and eliminate irregular migrant workers as much as possible. In order to show its position, the Convention gives fuller and more comprehensive protection to regular migrant workers and their family members. However, in practice, it is more neces-sary to protect irregular migrant workers and their family members. Migrant workers with a normal identity may not enjoy the same treatment as nationals of countries of employment, but their legal rights are generally guaranteed. The situation of irregular migrant workers is completely different. An irregular identity may be a direct obsta-cle to access to justice. In some countries, irregular migrants do not have the right to work because employment contracts are considered illegal without an employment permit.²¹ In addition, those with an irregular identity are often less willing to contact public authorities to obtain medical services, send their children to school, complain about crimes and human rights abuses, or seek judicial remedies because they are afraid of losing their jobs, being reported, being punished, or being deport. Unless mi-grant workers enjoy legal protection and can demand accountability, their rights will continue to be violated. However, irregular migrant workers are in fact marginalized from legal protection, making the limited rights granted by the Convention to a large extent illusory. With regard to such a dilemma, the Committee on Migrant Workers pointed out that “the normalization of status is the most effective measure to address the extremely vulnerable situation of irregular migrant workers and members of their families.”²²

 

In summary, it is necessary to encourage countries ratify the Convention in early stage. Taking into account the importance of the Convention for the protection of the rights of migrant workers and members of their families, the current status of the Con-vention, and the current status of international migration, developing countries should strengthen international cooperation and actively encourage developed countries that have absorbed migrant workers to ratify the Convention as soon as possible.

 

 

There is no doubt that migrant workers have made enormous contributions to the economic and social development of both countries of origin and countries of employ-ment, but the reality is that migrant workers’ do not receive the rewards, respect and protection of their rights they deserve. “Justice is the logical foundation of rights”²³. Full protection of the human rights of migrant workers to enable them to work with dignity in and to obtain a reasonable share of the wealth which created by those work-ers not only help maintain economic growth, but also safeguard equity and justice, promote social progress and humanity, and push forward sustainable development.

 

(Translated by CHEN Yunqing)

* ZHANG Aining ( 张爱宁 ), Director and Professor at Human Rights Research Center, Department of Interna-tional Law, China Foreign Affairs University.
 

1. There were about 150 million migrants worldwide in 1990, which increased to 191 million in 2005. See UN Secretary-General’s report: International Migration and Development, published in the UN website on June 6, 2006.

 

2. Report of the UN special rapporteur on the human rights of migrants: The Human Rights of Migrants (A/69/302), 2014, para. 15.

3. Ibid.

 

4. Article 2 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

 

5. If a person has a document or normal identity, he is permitted to enter, stay and engage in paid activities in the country of employment in accordance with the laws of that country and international agreements signed by the country. If a person does not have a document or normal identity, he is permitted to enter, stay and engage in paid activities in the country of employment without following the laws of that country and international agreements signed by the country. See Article 5 of the Convention.

 

6. See Article 3 of the Convention.

 

7. Report of the UN special rapporteur on the human rights of migrants: The Human Rights of Migrants (A/69/302), 2014, para. 26.

 

8. In 2013, remittances by migrants amounted to approximately $404 billion. See para. 26 of the report in foot-note 2. In 2005, the amount was $232 billion, which far exceeded the amount of official development assis-tance received by these countries. In 2004, 1/3 of migrant remittances were sent to India, China, Mexico, and France. In the Philippines, Serbia and Montenegro, the money sent back by migrants constituted a large part of these countries’ economy. Remittances received by Tonga in 2004 accounted for 31.1% of the country’s GDP, which was the largest.

 

9. United Nations, Transforming Our World: the 2030 Agenda for Sustainable Development (A/RES/70/1), 2015, para. 29.

 

10. The 2016 New York Declaration for Refugees and Migrants (Draft), (A/71/L.1, Annex II: Global Compact for Safe, Orderly and Normal Migration), adopted by UN General Assembly on September 19, 2016.

 

11. According to a report of the Committee on the Protection of the Rights of Migrant Workers, 10%-15% of the world’s 214 million migrant workers have problematic identity. This figure will continue to increase in the coming decade. “Migration: A Global Governance Issue”.

12. Li Xueping, “Freedom of Migration and Protecting the Rights of Migrant Workers in International Human Rights Law,” Science of Law 3 (2004): 35.

 

13. Article 7 of the Convention.

 

14. Article 8-35 of the Convention.

 

15. Article 36-37 of the Convention.

 

16. Self-employed workers engage in paid activities under non-employment contracts. They are usually migrant workers who make a living alone or with their family members through such activities, or any other migrant workers recognized by countries of employment as applicable legislation or bilateral or multilateral agree-ment to engage in self-employment activities.

 

17. Article 58-63 of the Convention.

 

18. Article 7 of the Convention.

 

19. As of 30 February 2017, altogether 178 states signed the International Convention on the Elimination of All Forms of Racial Discrimination, 166 signed the International Covenant on Economic, Social and Cultural Rights, 169 signed the International Covenant on Civil and Political Rights, 189 signed the Convention on the Elimination of All Forms of Discrimination against Women, 162 signed the Convention against Torture and Other Cruel, Inhuman or Degrading or Punishment, 175 signed the Convention on the Rights of Persons with Disabilities, and 57 signed the International Convention for the Protection of All Persons from Enforced Disappearance.

 

20. Countries ratifying the Conventions are Albania, Algeria, Argentina, Azerbaijan, Bangladesh, Belize, Burkina Faso, Bolivia, Bosnia and Herzegovina, Burkina Faso, Cape Verde, Chile, Colombia, Congo, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea, Guyana, Honduras, Indonesia, Jamaica, Kyrgyzstan, Lesotho, Lib-ya, Madagascar, Mali, Mauritania, Mexico, Morocco, Mozambique, Nicaragua, Niger, Nigeria, Paraguay, Peru, Philippines, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sri Lanka, Saint Vincent and the Grenadines, Syria, Tajikistan, East Timor, Turkey, Uganda, Uruguay and Venezuela.

 

21. UN Secretary-General’s report: “Promotion and protection of human rights, including ways and means to promote the human rights of migrants”, (A/68/292), 2013, para. 84.

 

22. Committee on the Protection of the Rights of All Migrant Workers, General Comment No. 2 on the Rights of Migrant Workers in an Irregular Situation and Members of Their Families (CMW/C/GC/2), 2013, para.16.

 

23. Xia Yong, Origin of Human Rights Concept -- Historical Philosophy of Rights (Beijing: China University of Political Science and Law Press, 2001), 27.