Human Rights Of Migrant Workers And Members Of Their Families International Law Essay

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UN Migrant Workers Convention

This is one of the nine core international human rights treaties. The main objective of this convention is to protect the migrant workers and their families from exploitation and the violation of their human rights. UNESCO supports sanction of this convention by all states and circulates information about this convention and other legal instruments concerning migrants.

The Convention on Migrant Workers classifies the rights of migrant workers under two main headings:

Human Rights of migrant workers and members of their families (applicable to all migrant workers).

Other Rights of migrant workers and members of their families (applicable only to migrant workers in a regular situation).

Human rights of migrant workers and members of their families

The Convention is not suggesting new human rights for migrant workers. Part III of the Convention is a replication of the basic rights which are protected in the Universal Declaration of Human Rights and elaborated in the international human rights treaties adopted by most nations.

The Convention tries to draw the attention of the international community to the dehumanization of migrant workers and members of their families, many of whom are deprived of their basic human rights. Indeed, legislation implementing other basic treaties in some States utilises terminology covering citizens and/or residents, de jura excluding many migrants, especially those in irregular situations. The rights covered are

Basic freedom

The Convention provides rights to the migrant workers and members of their families to leave and enter the State of origin. The inhumane living and working conditions and physical (and sexual) abuse that many migrant workers must endure are covered by the reaffirmation of their "right to life" and prohibition against cruel, inhuman or degrading treatment of punishment as well as slavery or servitude and forced or compulsory labour. Migrant workers are allowed to enjoy basic freedoms like the freedom of thought, conscience and religion, and the right to hold and express opinions. Their property should not be taken away without any valid reason.

Due process

The Convention explains in detail the need to ensure due process for migrant workers and members of their families. Investigations, arrests and detentions should be carried in line with established procedures. Their right to equality with nationals of the State before the courts and tribunals must be respected. Necessary legal assistance, interpreters and information in a language understood by them must be provided to them. When imposing a sentence, humanitarian considerations regarding the person's migrant status should be taken into account. The arbitrary expulsion of migrant workers is prohibited.

Right to privacy

A migrant worker is entitled to his or her honour and reputation and also to privacy, which extends to one's home, family and all communications.

Equality with nationals

Migrant workers must be treated equally to the citizens of the host country in respect of remuneration and conditions of work [overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of work contract, minimum age, restrictions on home work, etc]. It also extends to social security benefits and emergency medical care.

Transfer of earnings

The migration workers can transfer their earnings and savings as per their wish on completion of their term of employment. The same applies to their personal effects and belongings as well.

Right to information

They should have access to information about their rights arising from the present Convention as well as the conditions of their admission, and their rights and obligations in those States. Such information must be reach them at free of cost and must be available in a language understood by them.

Other rights of migrant workers and members of their families

The Convention tries to discourage illegal labour migration by providing additional rights for migrant workers and members of their families in a normal situation. Human problems are worse in the case of irregular migration.

Right to be temporarily absent

The Migrant workers should have the right to be temporarily absent, due to family reasons and obligations, with no effect on their agreement to stay or work.

Freedom of movement

They should have the right to move freely in the territory where they are employed and they should also be free to reside wherever they want.

Equality with nationals

The migration workers and members of their families shall enjoy equality with nationals of the State of employment in the following areas: access to education, vocational guidance and placement services, vocational training, retraining, and housing including social housing schemes, protection against exploitation in respect of rents, social and health services, co-operatives and self-managed enterprises, access to and participation in cultural life. The family members of migrant workers also shall enjoy equality with national of States of employment in having access to these services. Migrant workers shall enjoy equality of treatment in respect of protection against dismissal, unemployment benefits, access to public work schemes intended to combat unemployment and access to alternative employment in the event of loss of work or termination of other remunerated activity.

Employment contract violation

The migrant worker must have the right to address his or her case to the competent authorities in the State of employment in case of violation of works contracts by the employer. They should be equally treated like a national of the state and must be allowed to have a fair and public hearing by a competent, independent and impartial tribunal established by law

Rights of undocumented ('illegal') workers

The human problems involved in migration are even more serious in the case of irregular migration. The convention identifies the need to encourage appropriate action to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental rights. To prevent and eliminate illegal labour migration, the Convention proposes that the States concerned should collaborate in taking appropriate actions against the dissemination of misleading information relating to emigration and immigration, to detect and eradicate illegal or clandestine movements of migrant workers and impose sanctions on those who are responsible for organising and operating such movements as well as employers of illegal migrant workers. However, the Convention protects the fundamental rights of undocumented migrant workers

GATS Mode 4 and the WTO

The WTO's General Agreement on Trade in Services (GATS) "Mode 4" is currently the only internationally agreed legal instrument with the potential to become a functioning multilateral labour migration regime. It is an international mechanism aimed at liberalizing labour mobility on the basis of qualified negotiated commitments by states to accept nonpermanent foreign labour migrants, subject to substantive rules that regulate and restrict states' unilateral labour immigration policies.

The GATS applies to labour as an internationally tradable service. Under article I: 2 GATS, the agreement covers four “Modes" of international service provision. Among these, "Mode 4", is the provision of a service "by a service supplier of one Member, through presence of natural persons of a Member in the territory of another WTO Member". This entails movement of labour for the purpose of supplying a service on site in a foreign, service-importing country, and may include either self-employed suppliers remunerated directly by consumers or employees of service suppliers. Such labour mobility may occur in any of the service sectors covered by the GATS (e.g., health professionals, construction workers, tour guides, accountants or software developers).However, the GATS applies only to labour-migration that is service-related and does not establish free movement of yet unemployed labour.

The GATS Annex on Movement of Natural Persons Supplying Services under the Agreement expressly provides that the GATS shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis. This caveat has regulatory implications that technically (if not artificially) differentiate GATS commitments from immigration laws, and service-provision from labour. Mode 4 may facilitate the mobility of workers, but these enter a foreign country under GATS as service suppliers for the purpose of supplying a service in a specific sector. They cannot enter for the purpose of seeking employment, and their entry is for a limited period of time, as may be necessary for the provision of a service under contract.

The GATS attempts to adjust the classical legal principles of trade in goods under the General Agreement on Tariffs and Trade (GATT) to the more complex areas of trade in services. Thus, as a general obligation, the most-favoured nation (MFN) principle applies to all measures covered by the agreement, in any service sector, preventing discrimination between service suppliers from different WTO Members. However, a Member must allow service suppliers access to its market only in those sectors and in those modes of supply in which it has entered specific commitments in its GATS schedule, subject to any terms and conditions specified therein. The national treatment principle that prevents discrimination between domestic and Foreign Service suppliers, similarly applies only to sectors in which a Member has elected to make specific market access commitments.

These principles mean that if a WTO Member commits to open its services market in a certain sector under Mode 4, it must provide market access, MFN and national treatment to foreign labour, significantly constraining the autonomy of its labour immigration policy in that sector. It is therefore not surprising that specific commitments under Mode 4 have so far been very modest and subject to significant reservations. Mode 4's small impact in practice enhances rather than diminishes the unique opportunity that it provides us to examine the global justice implications of a multilateral labour migration regime, as applied.