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Description of working paper No 14

Identification of the Obstacles to the Signing and Ratification of the UN Convention on the protection of the Rights of All migrant workers 1990 - The Asia Pacific Perspective

Nicola Piper (Australian National University, Canberra, Robyn Iredale (APMRN)

EXECUTIVE SUMMARY (to view full document click here)

I Background and Method

On 1 July 2003, the 1990 United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (hereafter: ICMR) officially entered into force as an instrument of international law that will ensure protection and respect for the human rights of all migrants. The Convention is a commendable effort by the international community to respect and protect the human rights of this vulnerable group of people. However, despite the universal involvement of UN member states in the drafting process beginning in 1990, it took almost 13 years for this important instrument to become part of international law.

In the Asia Pacific region, only three sending countries have ratified (the Philippines, Sri Lanka and Tajikistan) despite this region constituting an important source of labour migrants and with intra-regional labour migration taking place on a large scale. This report is concerned with the identification of the obstacles to the ratification of the ICMR in this region. Both countries of origin and destination are considered with regard to contemporary labour migration patterns and the extent to which their policies are consistent with human rights standards. The project was conducted in seven countries: two countries of origin (Bangladesh and Indonesia) and five countries of destination (Japan, Korea, Malaysia, New Zealand and Singapore).

The overall aim of this report is to investigate ways to gain wider acceptance of the ICMR in the specific context of the Asia Pacific region. This report:

· investigates why a sample of major sending and receiving countries in the Asia Pacific region have not ratified the Convention, and
· develops recommendations to encourage more ratifications in this region and beyond.

The main research methods employed were semi-structured interviews with key informants in seven selected countries in the Asia Pacific region. Informants were sought from among the following groups: politicians and/or governmental officials (at national and local level), NGO representatives (migrant support groups and human rights groups), academics, embassystaff (labour attaches), lawyers (bar associations), trade unions and employers/industry organizations, and National Human Rights Commissions (see Appendix I for more details). Interviews were arranged with the assistance of local coordinators, most of who are members of the APMRN. The actual interview schedule was designed to test the obstacles and opportunities created by ratifying the Convention from a legal, social and political perspective. This also included an examination of the role the media are playing in the acceptance of human rights for migrants. Other materials informing the report come from websites, and from newspaper clippings and copies of legal and semi-legal documents provided by the country coordinators.

II Major Findings

In both sending and receiving countries in this study the ICMR is known in government circles, largely due to the promotion by very active NGOs. This does not mean, however, that the Convention is fully understood in all its details. On the technical legal level, apart from Japan and New Zealand, none of the other countries have come so far as to investigate clause by clause the exact legal implications of ratifying this Convention. Visibility of this Convention has not extended into the wider public sphere.

Human rights in general are reasonably well known, particularly in the receiving countries where standards of education are on average higher, but the concept of human rights of migrants is neither given much attention nor sympathy. The media are partly to blame. Also, human rights divisions at ministerial level in countries tend to be under-staffed and under-funded. The lack of experts in the area of international law and human rights is also a common problem. Once governments ratify a UN Convention they need to address their obligations. With regard to foreign migrant workers, they are typically not prepared to do so at both the labour sending and receiving end.Combined interests (among recruitment agencies, employers, governmental officials) that go against the granting of rights to foreign workers are a huge force that is not easily counter-acted by NGOs and sympathetic individuals within the government structure. At the NGO level, a big problem is the lack of resources available to campaign for this Convention. The Convention is often seen as too far removed with little hope for success, especially in receiving countries. NGOs feel that the pressure to compel receiving countries to ratify has to come more from the outside. Unless it comes from the UN, it will not come about easily as no western receiving country has ratified the ICMR.

Specific Constraints in the Sample of Sending Countries
The situation in the two sending countries, Bangladesh and Indonesia, is very similar: the ratification and the implementation processes are expensive undertakings and both countries’ governmental budgets and staff assigned to such matters are very limited. Another problem is the allegedly high level of collusion between government circles and those involved in theexport business (recruitment agencies). The creation of an environment of ‘good governance’ is needed and this requires broad level reforms.

The biggest obligation on the part of Bangladesh and Indonesia, once they ratified the ICMR, would be the provision of pre-departure information campaigns and training sessions, the monitoring and imposition of sanctions on brokers and recruiters operating illegally, and the provision of embassy services to citizens working abroad. Both countries are afraid of losing jobs abroad and of other sending countries picking up their workers’ share if they ratify the ICMR.

NGOs in both countries are campaigning on behalf of the ICMR and also for national legislation but problems are posed by the lack of resources. The lack of awareness, on the part of many migrants, of their basic human rights and the negative impacts of strong interests involved in the ‘migration business’ all pose major problems that need to be addressed.

Specific Constraints in the Sample of Receiving CountriesThe receiving countries in this study can be clustered together in the following manner with regard to their immigration policies, on the one hand, and political systems and attitudes towards human rights on the other: 1) New Zealand, 2) Malaysia and Singapore, 3) Japan and Korea.

In New Zealand, the dominant policy orientation at present follows that of other western receiving countries — no further expansion of human rights but the protection of national interests of the (welfare) state. There is agreement with the core aims and principles of UN human rights provisions but a critical position is taken vis-à-vis the UN system at large — it is seen as duplicating many projects and not using resources efficiently. With specific reference to the ICMR, it is seen as not matching the national situation and as duplicating rights provisions that already exist. As New Zealand takes compliance seriously, the extent of reforms needed to avoid breach of this Convention is considered too substantial and monitoring too costly. There is little pressure coming from semi- or non-governmental sources and some even concur with the officialgovernment position.

In Malaysia and Singapore, the many ministries involved in the migration phenomenon seem to operate without clear coordination and cooperation, and with little transparency. Immigration departments, rather than labour ministries, generally handle migrant worker programs. Moreover, departments are often in conflict with each other over the issue of suitable policy and policies are changed frequently. Clear cases of discrimination, such as the Singapore government’s refusal to classify domestic maids as workers and their provision of a special ‘non-worker’ visa for domestics, would not be challenged by the Convention as it stands.

In Japan and Korea, the issue of non-coordination among ministries and unclear policy approaches is more related to the relatively new experience of receiving substantial numbers of foreign migrants. With prolonged experience of this kind, governments seem to implement clearer policies (as can be seen in the context of Japan). What distinguishes Japan fromKorea is that local governments of prefectures with high proportions of foreign residents and workers have put social welfare and legal aid facilities in place. Such programs, however, are highly localised and do not result in general rights as stipulated by the ICMR. The National Commission of Human Rights in Korea does not recommend ratification of the ICMR at this stage, and suggest improvement of existing legislation and practices instead in order to enhance social security of migrants.

In the receiving countries, migrant workers are seen as well protected in their capacity as workers (although their visa status often poses an obstacle to claiming labour rights in practice) but addressing their social, economic and cultural rights as stipulated in the ICMR is a different matter. In countries with social welfare states, this has to do with the current restructuring and reducing of welfare provisions. In countries of multi-ethnic composition, this has to some extent to do with ethnic politics and existing minority groups whose rights often have not been protected according to internationalstandards.

No government covered is prepared to extend rights to irregular migrants. They perceive this as a form of encouragement and, of course, they provide a cheap, flexible pool of labour. There is very little critical assessment of how migrants become ‘irregular’ and ‘blame’ is usually attributed to the migrants themselves.

Problems with recruitment agencies exist in all countries. States typically protect employers more than foreign workers and this is generally approved of by the public at large. Although most receiving countries claim that they have sufficient legislation in place, by excluding ‘trainees’ and domestic workers from coverage of their employment acts or labour laws a substantial part of the foreign migrant worker population is without protection.

III Conclusions and Recommendations

Overall, a better understanding of the Convention and the implications of its ratification are required in both sending and receiving countries. There is confusion as to what the gains and losses are in case of ratification and it is assumed in both sending and receiving countries that the potential losses are greater than the gains. In addition, fears of ‘being first’ to ratify need to be addressed.

National Level
Ratification of the ICMR faces major hurdles in the Asia Pacific region for two major reasons. For sending countries, the fear of being undercut by non-ratifying neighbours is a major obstacle — countries fear they will lose markets if they ratify. The need to encourage cooperation and collaboration, rather than competition, is imperative. The trade-off between ensuring labour market penetration and protecting the labour and human rights of migrants is a complex issue and so countries need to work together to ensure that undercutting does not occur. The fears associated with the consequences of ratifying the Convention need to be acknowledged and resolved. One way of doing this would be to conduct a study of the impacts for the Philippines, Sri Lanka and Tajikistan of their ratification. This would identify negatives consequences, if any, and put to rest unfounded fears.

For receiving countries, the major obstacles are of a political nature and require changes in national perspectives. The perception that they must admit the family members of labour migrants is widespread and needs to be corrected. Of even greater concern are issues surrounding irregular migrant workers. The unwillingness to admit the failure of border control and visa policies is a sensitive issue and likely to attract negative publicity for the government. However, the mismatch between labour demand and supply (providing an opportunity for migrant labour) is evident in Malaysia, Japan and Korea. Moreover, the high costs of migration, the inflexibility and/or brevity of some contracts and the absence of opportunities to migrate often lead to a growth in the number of irregular migrants. Until these governments acknowledge the needs of employers and develop adequate labour migration programs and enable mobility between employers, migrants will be found in unprotected and highly exploitative positions.

The focus in receiving countries could be on changing domestic policies and laws first before mounting a ratification campaign. Parallel to improving national legislation could be the drafting of a ‘declaration’ or ‘recommendation’ of a non-binding nature that the receiving countries could be encouraged to sign. This would establish a ‘code of practice’ vis-à-vis migrant workers. The next step could be a campaign aiming at full ratification of the UN Convention.

Newer labour sending countries, such as Cambodia, Mongolia and Nepal, need to be incorporated into the regional migrant labour system and regional advocacy initiatives. At the moment, they are excluded from the major academic and NGO networks — partly because they have not yet developed country counterpart bodies.

Recommendation 1: That UNESCO commission a study of the Philippines, Sri Lanka and Tajikistan to examine theeconomic, social and political impacts of ratification of the Convention.

Recommendation 2: That the existing initiative in South Korea to change domestic legislation first, involving the UNDP and IOM, be encouraged and supported by UNESCO.

Recommendation 3: In addition, national or regional codes of practice or ‘sets of principles’ could be discussed as a step in the direction of ratifying the ICMR.

Recommendation 4: That UNESCO fund a similar study to this one in Cambodia, Mongolia and Nepal as a way of investigating the obstacles that exist in these newer countries of labour migration and as a means of incorporating them into the Asia Pacific Migration Research Network.

Regional level

Leadership by one or more countries should be encouraged. Governments most likely to be active are the Philippines and Sri Lanka as they have already ratified the ICMR. The Philippines, in particular, is seen by NGOs and governments throughout the region as a model. Bangladesh already has an active process in place for trying to get the ICMR ratified and Indonesia is beginning to move in this direction. Other anecdotal evidence suggests that Thailand also appears receptive to the possibility of signing.

The next IOM sponsored Labour Minister’s meeting will take place in Manila in 2004 and the establishment of a consortium could be discussed on this occasion. Once the consortium is established it would require a coordinator to arrange an initial meeting to discuss possible action plans. After this meeting, country representatives from Bangladesh, Indonesia and Thailand would be required to develop plans specific to their situations.

Receiving countries may be more willing to ratify the ICMR if they have greater confidence in the ability of governments and other agencies to curb irregular migration in the region. Various initiatives have already been put in place in this region but the efficacy of these approaches has so far not been evaluated and before further initiatives are put in place a stock-take needs to be done in the region.

Recommendation 5: That a consortium of ILO representatives and government officials, NGOs and researchers from Bangladesh, Indonesia, the Philippines, Sri Lanka and Thailand be established to meet and discuss the possibility of formulating country action plans in Manila in 2004. This should be followed up by the initiation of a process to develop action plans for Bangladesh, Indonesia and Thailand to encourage them to ratify the ICMR.

Recommendation 6: That UNESCO, ILO and IOM work together on this initiative as part of their on-going commitment to the improvement of labour migration programs and policies.

Recommendation 7: That an evaluation be undertaken into the National, Regional and Global Initiatives for Combating the Exploitative Aspects of Irregular Migration.

International level
UN agencies need to work to mainstream migration — every agency and program should look at its potential ramifications/implications for migration. The concept of ‘workers rights are human rights’ needs promoting. However, the UN Convention is a ‘pre-globalisation’ document and does not take into account the changing patterns of migration and labour markets within regional economies. Long-term, there is a need for an Optional Protocol that amends the original Convention’s provisions. An international campaign is urgently required to promote ratification of the Convention:

· Global: to encourage Western countries to ratify so that other countries are more
likely to follow suite;
· Regional: aimed at both senders and receivers simultaneously to achieve ratification ideally at the same time so that an actual or perceived ‘race to the bottom’ is avoided.

Recommendation 8: The current Steering Committee for the Global Campaign, of which UNESCO is a member, should be resourced to continue promoting migrant workers’ rights.

Recommendation 9: As a long-term strategy, the Steering Committee could consider lobbying for a UN Decade of the Migrant. In the short-term, celebrations on International Migrants Day on 18 December should be widespread.

Recommendation 10: Information and training campaigns in both sending and receiving countries should be launched involving NGOs and trade unions — targeting the media, schools, employers, police and doctors in particular.

NGOs
At the time of the development of the ICMR there were few migrant NGOs operating globally, and especially in the Asia Pacific region. Therefore, they were not involved in the Convention’s discussions and preparatory meetings. NGOs need to be assisted with capacity-building and incorporated more into the process of achieving ratification in many countries. The UN could fund training programs and networking among NGOs. A stronger partnership between UNESCO and migrant NGOs should be built.

Recommendation 11: That UNESCO encourage NGOs in social capital building by supporting an existing NGO to act as a coordinating body.

Recommendation 12: That the UN provide training opportunities for NGO representatives and assist with the development of networks.

Recommendation 13: That UNESCO and the Steering Committee for the Global Campaign assist NGOs with the formulation of a new strategy now that the ICMR has come into effect.