ISSN 2330-717X

International Conventions On Rights Of Migrant Workers Inadequate – Analysis

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By Amity Saha*

In this age of globalisation, the era would not only be characterised by the liberalisation of trade, capital, investments and services but also identified with the transnational movements of people who usually move in search of better lives along with better employment opportunities far from their home places.

The absence of available domestic workforce is directing rich countries to look gradually outside their respective borders. Migrated legal and illegal people from poorer countries have stepped in to fill the increasing demand.

As a result, the informal sector or the so-called underground economy has been expanded over these rich countries that made it easier for cost-conscious as well competition-minded employers to exploit the poor migrant workers and make them over-work.

Most of the time, migration is for endowing experience, but there is also a phenomenon that — lacking in human rights-based systems of migration governance — is usually creating a human rights crisis for migrants not only at borders in the receiving countries but also in the territory of countries of transit and destination.

An estimated 244 million people across the world are currently residing outside the country of their origin, mostly in search of protection, economic safety and opportunities. Therefore, assisting all migrant workers who are lawfully resident and those in an irregular illegal situation in any country is a paramount task for humanity.

Legion of shortcomings and gaps in the existing international legal framework are violating the rights of these people. More than 75 percent of migrant workers say they received wages lower than what they were promised before they left their home countries or experienced unforeseen deductions.

According to a survey by the World Bank and the International Labour Organisation conducted in the Asia-Pacific and Gulf regions, nearly 14.5 per cent of the respondents said they did not receive wages on time.

The findings of the survey were presented on December 7, 2016, at the 16th ILO Asia and the Pacific Regional Meeting in Bali, Indonesia.

Regarding contract and health insurance prior to departure, no particular regulations have been signed with the job-aspiring migrants. So, according to this study, more than 30 per cent of migrant workers are suffering on this count.

One in five workers had serious work-related injuries, which is above the national averages. About 25 percent of the migrant workers did not have any day-off in a week. The average number of weekly work hours is 71, with sizeable gender disparities. The respondents said their wages were at least 30 per cent lower than what they were promised before they left their home countries.

Since low-skilled workers pay employers for jobs, employers profit from recruitment. This has driven an excessive supply of labour and less use of technology, particularly in the construction sector. There is often a skills mismatch, leading to dissatisfaction for both workers and employers. This, in turn, forces the former into debt bondage and forced labour, much of which can also be classified as human trafficking for labour exploitation — that violates both local and international laws.

Almost 10 years ago, in 2007, ASEAN leaders signed the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers or the Cebu Declaration — which recognises the contributions of migrant workers to society and economy in both the receiving and sending states.

While the declaration respects the sovereignty of member states to decide their own migration policies, it provides general principles: Obligations of receiving and sending states; and Commitments by ASEAN for protection and promotion of workers’ rights.

Unfortunately, there are only a limited number of governments that have well-regulated systems facilitating the legal and transparent movement of low- or semi-skilled workers. This is the stage where low-skilled workers aspiring to secure jobs abroad become prone to abusive recruitment practices like debt bondage, forced labour and human trafficking carried out by unregulated intermediaries.

The main standards defending migrant workers come from the International Labour Organisation (ILO), the United Nations body devoting itself to labour-related concerns.

The ILO has two legally binding instruments relating to migrant workers: Convention No.97 of 1949 (C97) on Migration for Employment and Convention No.143 of 1975 (C143) referring to Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers.

Convention No.97 of 1949 (C97) lays down the conditions governing the orderly recruitment of migrant workers to the whole labour migration range from entry to return. It also gives voice to the principle of equal treatment of migrant workers with national workers regarding working conditions, trade union membership, the satisfaction of the benefits of collective bargaining, accommodation, social security, employment taxes and legal proceedings relating to issues drafted in the convention.

The scope of Convention No.143 of 1975 (C143) is wider. This was embraced at a time when particular migration abuses, such as the smuggling and trafficking of migrant workers, were attracting the attention of the international community.

Unfortunately, the situation remains the same even today.

C143 devotes a whole section to irregular migration and to inter-state collaborative measures considered necessary to prevent it. It also imposes an obligation on states “to respect the basic human rights of all migrant workers”, confirming its applicability to irregular migrant workers.

The United Nations, in 1990, adopted the International Convention on the Protection of the Rights of All Migrant Workers and Their Families (ICMW) — but it only came into effect in July 2003.

Similar to the ILO instruments, it covers the whole migration process. And though 27 states have approved the ICMW, none of them is from the main receiving states.

In addition to underscoring many of the traditional civil and political rights, the ICMW clarifies that basic economic, social, and cultural rights apply to both regular and irregular migrant workers together with migrant workers and their families. Nevertheless, the ICMW countenances the state limiting the rights of specific temporary migrants, like seasonal workers, specified-employment workers and project-tied workers.

Regardless of the all-inclusive nature of these conventions and regulations, these mechanisms only offer an insufficient shield to the migrant workers around the world as the labour migration setting has changed since these were adopted.

*Amity Saha is a Research Assistant (International Affairs) at Bangladesh Institute of Law and International Affairs (BILIA). Comments and suggestions on this article can be sent to [email protected]


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