Annual Meeting on Implementation of the Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and Their Families Context: The ILO is pleased to participate in this follow up meeting to the landmark OAS General Assembly resolution AG/RES. 2224 (XXXVI-O/06), “The Human Rights of All Migrant Workers and Their Families,” with the purpose of sharing best practices and activities carried out last year in support of the Program, as well as new proposals that might be incorporated into the text of the Program. We understand that as an international organization, we are expected to contribute on issues concerning protection of the human rights of migrants, and activities and best practices in the same field.
In 2005, about 191 million people - 2.9 percent of the world’s population - were living outside their countries of birth or citizenship. This population would constitute the world’s fifth largest country if put in one territory. Of this number, Latin America and the Caribbean accounted for 6.6 million and North America for 44.5 million respectively, thereby accounting for about one fourth of the global migrants in the OAS region.
Most of the world’s migrants comprise migrant workers and their families. Almost half of the world migrant population is economically active, that is to say employed, self-employed or otherwise engaged in remunerative activity. The ILO estimated 23 million migrant workers for the OAS region in the year 2000, and this number would have reached about 25 million by 2005.76 Protection central to the OAS and ILO agendas It is laudable that protection of migrant workers and their families is now as central to the agenda of the OAS as it has long been for the ILO. Indeed, the record shows that many States in the Americas have established their commitment to the principles and international standards upholding the rights and dignity of migrants.
Three international instruments provide a comprehensive and complementary “values-based” definition of the human rights of all migrant workers and their family members. They provide a more than adequate legal basis for national policy and practice regarding non-national migrant workers and their family members.
Today, no less than 23 States of the Americas have ratified one or more of these instruments77; another two have signed the 1990 Convention and are expected to ratify it soon78.
Notably, the content of these instruments is broader than defining human and labour rights; numerous provisions in each add up to a comprehensive agenda for national policy and for consultation and cooperation among States on labour migration policy formulation, exchange of information, providing information to migrants, orderly return and reintegration, etc.
Indeed, three fundamental notions characterize the protections in international law for migrant workers and members of their families.
Equality of treatment between regular migrant/immigrant workers and nationals in the realm of employment and work.
Core universal human rights apply to all migrants, regardless of status. This was established implicitly and unrestrictedly in ILO Convention 143 of 1975 and later delineated explicitly in the 1990 Convention.
The broad array of international standards providing protection in treatment and conditions at work –safety, health, maximum hours, minimum remuneration, non-discrimination, freedom of association, maternity, etc.—apply to all workers.
As highlighted in the OAS Resolution referred to above, the Inter-American Court of Human Rights issued an important opinion on 17 September 2003 that clearly reinforced the application of international labour standards to non-national workers, including those in irregular status.79
The Court found that non-discrimination and the right to equality are jus cogens applicable to all residents regardless of immigration status. Non-discrimination and the right to equality, the Court said, dictate that States cannot use immigration status to restrict the employment or labor rights of unauthorized workers, giving unauthorized workers inter alia equal rights to social security (see paragraph 157). The Court acknowledged that governments have the right (within the bounds of other applicable human rights norms) to deport individuals and to refuse to offer jobs to people without employment documents. However, the Court said, once the employment relationship is initiated, unauthorized workers become rights holders entitled to the full panoply of labor and employment rights available to authorized workers.80 In its conclusions, "The Court decides unanimously, that…
8. The migrant quality of a person cannot constitute justification to deprive him of the enjoyment and exercise of his human rights, among them those of labor character. A migrant, by taking up a work relation, acquires rights by being a worker, that must be recognized and guaranteed, independent of his regular or irregular situation en the State of employment. These rights are a consequence of the labor relationship."
Renewed ILO commitment and activity
Over the last three years, the ILO has renewed its commitment to address migrant workers, and has considerably expanded its activity, notably in the Americas.
The 2004 International Labour Conference in Geneva adopted a Plan of Action on migrant workers for ILO and its tripartite constituents. This plan outlines a comprehensive approach to regulating labour migration from a rights based approach in the context of labour market and employment considerations. Especially significant was the adoption of the resolution by consensus by ministerial level government representatives and leadership of trade union and employer federations from then 177 ILO member States.
Following this Plan of Action, the ILO subsequently drafted and published in 2006 a comprehensive Mulilateral Framework for Labour Migration. This non-binding framework provides detailed guidelines and models for putting into practice the basic principles of sound, rights-based migration policy. Its recommendations are based on proven “good practices”, a considerable number of which are outlined in the published Framework (available on-line in English, French and Spanish81. Of note is that several countries of the Americas contributed substantially to its elaboration, including a number represented by experts at the ILO Expert Meeting that reviewed and ultimately agreed to the final text82.
ILO’s Hemispheric Agenda to Promote Decent Work
The Sixteenth American Regional Meeting of the ILO held during 2-5 May 2006 in Brasilia adopted a Hemispheric Agenda to Promote Decent Work that includes specific attention to improving the protection and conditions of migrant workers. The objective of the component addressing labour migration is to improve the level of protection of migrant workers through better regulation and management of migrations.
Three operational goals were set for ILO member states in the region:
By 2010 to have a statistical information system on migrant workers to sustain the formulation of policies in this field.
To make progress in using the ILO MultiLateral Framework on Labour Migration and in ratifications of ILO Conventions Nos. 97 and 143 in order to bring about better regulation and management of the migratory process.
By 2010 all the migrant source and host countries must have a strategy and a plan of action for an orderly management of migration.
The ILO has been working in the Americas on this agenda over the last few years. In particular, ILO has supported the Andean Pact, and Caricom, and Mercosur regional integration initiatives to enhance or develop legal regimes of free circulation of labour, ensuring that the rights of migrant workers are adequately protected in these.
Efforts now being substantially expanded.
A new technical cooperation project is being launched with support of the government of Spain to improve coordination of migratory flows and training opportunities in Bolivia, Colombia, Ecuador and Peru. It is designed to give practical effect to the promotion of Decent Work through expanding legal avenues for migration, skill development, and labour market absorption of returnees including through SME development, aspects which will de facto contribute to improving conditions of and protection for migrants. It will also support social and labour integration of immigrants in Spain, contributing to non-discrimination and protection there. Additional cooperation and capacity building programmes addressing labour migration in the Southern Cone and Andean countries await final approval of donor partners.
ILO would like to strengthen the implementation of the OAS resolution on human rights of all migrant workers and their families. Regarding Article 5, ILO has focused on anti-discrimination and integration issues for migrant workers in countries of employment over the last 15 years. We have developed extensive motivational and training materials for social partners and have compiled a unique and large collection of practice example profiles available on the internet. These materials are adaptable to the experience of countries in the Americas, and there are practice models from this region worthy of sharing more globally.
While article 7 of the resolution highlights consideration of the 1990 Convention, the ILO encourages ratification and/or adoption of the principles in ILO Conventions 97 and 143 on migration for employment. Inspired by the convergence in existing ratifications, advantages can certainly be gained from cooperative promotion and support for implementation of the three instruments together.
The ILO certainly hopes that the Permanent Council will take into account the work of the ILO in this field in its continued support of the work of the Inter-American Commission on Human Rights (IACHR). And the ILO can certainly continue assisting its member States in the design, execution, and evaluation of their migration policies, including particularly activities recommended in the Inter-American Program for the Promotion and Protection of the Human Rights of Migrants. We welcome the encouragement to cooperate with the Inter-American Agency for Cooperation and Development (IACD) in implementing the Strategic Plan for Partnership for Development 2002-2005 regarding the situation of migrant workers and their families.
The ILO welcomes several recommendations emanating from the recent Workshop of the Inter-American Network for Labor Administration (RIAL) in Ottawa.83 Pursuant to a recommendation, ILO stands ready to initiate preparations together with the OAS of a workshop with COSATE and CEATAL to obtain membership input on guidelines for migration management and policies.
ILO is most ready the to assist the IACML in following-up mandates regarding labor rights of migrant workers and migratory processes contained in the Declaration and Plan of Action of Mar del Plata, approved in the IV Summit of the Americas in November, 2005, and in the Hemispheric Agenda for Decent Work of the ILO, approved in the XVI Regional American Meeting in Brasilia in May, 2006. ILO could also assist in organizing the next RIAL/IACML workshop on Social Security which might include a section exploring bilateral and multilateral conventions to coordinate social security systems.