Migrants Rights International

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HUMAN RIGHTS OF MIGRANTS:
CHALLENGES OF THE NEW DECADE [1]

IOM/UN International Migration; Quarterly Review Vol. 38 No. 6 Special Issue 2/2000

Introduction

Migration and the ‘multiculturalization’ of societies around the world are facts of history and increasingly predominant features of this contemporary age of globalization. Increasing migration, for positive and negative reasons, means that nearly all States have become or are becoming more multi-ethnic, multi-cultural, multi-racial, multi-religious, and multi-lingual. Addressing this reality of increasing persity means finding political, legal, social and economic mechanisms to ensure mutual respect and to mediate relations across differences.

This review starts from the premise that the rule of law and respect for widely recognized notions of human rights are the essential foundation for democratic society and social peace. Respect for the basic human rights of all persons in each society offers an essential, accountable and equitable basis for addressing and resolving the differences, tensions, and potential conflicts that interaction among different persons and groups with different interests inevitably brings.

This “work in progress” seeks to sum up main trends, issues, debates and initiatives currently conditioning the recognition and extension of protection of human rights of migrants. Acting effectively to uphold the basic rights and dignity of migrants begins with having an accurate grasp of the conditions, issues and actors that shape this concern.

Addressing the human rights dimension of the experience of 150 million of the world’s people –one in every 50 human beings—living outside their country of origin, as refugees, migrants or permanent immigrants is an awesome and sometimes intimidating task. Awesome because there is relatively little literature, support nor sustained engagement in this arena. Intimidating because it is an unpopular issue, one for which concerned organizations garner few resources, and one which touches vested interests that would rather not see much light shed on the issues.

Despite the lack of study, there is more than enough experiential and anecdotal evidence to state categorically that violations of migrants human rights are so generalized, widespread and commonplace that they are a defining feature of international migration today.

In an attempt to provide a global “tour d’horizon” on the human rights dimensions of migration, this article attempts to summarize main characteristics, conditions, issues and initiatives related to recognition of migrants human rights world-wide in the following sections:

1) Contemporary characteristics and trends regarding recognition of migrants’ human rights.

2) The extension of general principles and notions of universal human rights to all migrants.

3) Contextual factors shaping migrants rights questions.

4) Main issues of contention regarding recognition of human rights of migrants.

5) Initiatives, actors and character of activities promoting respect for migrants rights

6) Some lines for responses and remedies to uphold migrants human rights.

This review reflects an approach that attempts to acknowledge the values underlying the analysis. These values are essentially those articulated in international human rights principles and instruments. In the experience of the author, all analysis and discourse –notably in the field of migration—reflects sets of values, whether or not they are acknowledged. This author also acknowledges his engagement --and that of the institutions he is affiliated with—in promotion of human rights principles and instruments which indeed reflect these values. Nonetheless, the views expressed in this article are those of the author, and do not necessarily represent positions of the ILO.

1. TEN GENERAL TRENDS

1. Today, some 150 million people live temporarily or permanently outside their countries of origin. Many of these, 80-97 million, are estimated to be migrant workers and members of their families, according to ILO figures [2] . In many countries, legal application of human rights norms to non-citizens is inadequate or seriously deficient, particularly as regards irregular migrants, those without authorization to enter or remain in the country.

2. Extensive hostility against, abuse of and violence towards migrants and other non-nationals has become much more visible worldwide in recent years. Lack of any systemized documentation or research over time makes unclear to what extent the apparent increase is in the level of abuse or is partly a reflection of increased exposure and reporting.

3. Research, documentation and analysis of the character and extent of human rights problems regarding migrants and of effective remedies remain minimal. A telling indication is that, until very recently, the topic or area of human rights of migrants was simply not a category in most of the published bibliographies and research lists regarding migration.

4. A long and slow trend of extension to migrants of basic human rights principles elaborated in the Universal Declaration of Human Rights culminated a decade ago in the adoption of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. More recently several NGO and UN initiatives have revived attention to these norms, notably by initiating a global campaign for ratification of this Convention. Appointment of a UN Special Rapporteur on Human Rights of Migrants has further focused attention on application of human rights to migrants.

5. Discussion of migrants’ human rights questions has become markedly more visible and “mainstream” over the last three to four years. Activity and advocacy by NGOs and human rights organizations has become much more evident, migrants rights has emerged as a formal topic on the agenda of many migration-related conferences and forums, and news and communications media attention has increased substantially.

6. However, a general counter-offensive has taken shape against human rights as universal, inpisible and inalienable. In part, this challenge focuses on distinguishing between «realizable» political and civil rights versus economic, social and cultural rights characterized as costly, unsustainable and secondary. Explicit resistance to extension of human rights protection to migrants appears to be a feature of this counter-offensive. Ratification and entry into force of the 1990 Convention has been explicitly discouraged by some governments and other observers.

7. Parallel to resistance to application of human rights norms to all migrants is a deliberate association of migration and migrants with criminality. Migrants are commonly and deliberately associated in news media coverage, by politicians and in popular discourse with crime, trafficking, drugs, disease, AIDS and other social ills. Migrants themselves are criminalized, most dramatically through widespread characterization of irregular migrants as «illegals» implicitly placing them outside the scope and protection of the rule of law. More generally, migration is commonly characterized as problematic and threatening, particularly to national identity and security.

8. Trafficking has emerged as a global theme in addressing migration. The growth of trafficking of persons by organized criminal groups has meant a major increase in abuse of migrants by non-State actors, making it a compelling issue for human rights advocates as well as for law enforcement. However, the dominant approach by many States has contextualized migration in a framework of combatting organized crime and criminality, subordinating extension of human rights protections to control of cross border movement and anti-crime measures. An outcome of this tendency was elaboration of two Protocols, one on combating trafficking in persons, the other on suppression of smuggling in migrants, accompanying the new International Convention Against Transnational Organized Crime. Both Protocols emphasize crime suppression and prevention measures in addressing irregular migration concerns; draft language on a number of basic human rights protections related to migrants and refugees proposed by some governments, international organizations and NGOs was not included.

9. Inter-governmental cooperation on migration 'management' is expanding rapidly. There are now a number of functioning regional inter-governmental consultative processes, under such names as Puebla, Manila-APC, Dakar, Cairo, MIDSA, Central Asia and Caucuses, Mediterranean, and Lima. Several consultative mechanisms are now operational with permanent secretariats, such as the Intergovernmental Consultations for Europe, North America and Australia (IGC), the Budapest Process for Eastern and Central Europe, and the Asia Pacific Consultations (APC). Impetus for several of these mechanisms has been explicitly to address irregular migration. The agendas have correspondingly been focused on discussion of migration control measures and on inter-state cooperation in monitoring migration, strengthening border controls, combating organized crime and returning migrants.

10. International and national efforts to defend human rights of migrants and combat xenophobia remain scattered, fragmented and relatively limited in impact. The few specific activities by UN and other inter-governmental organizations remain resource-starved to the extent that they can respond little more than symbolically to expectations and mandates. While a number of active migrant and non-governmental organizations have emerged in Asia, the Americas and Europe, there is still little international coherency in civil society efforts.

2. CONTEXTUAL FACTORS SHAPING MIGRANTS RIGHTS CONSIDERATIONS

2.1 Causes of Migration

The discussion of human rights of migrants requires a brief comment on the factors motivating migration. The question of identifying the causes of human displacement has three fundamental ramifications. First, a key concern is to recognize people who need protection from being forcibly returned to situations in which their lives, physical well-being or human dignity are threatened. Second is the challenge to identify root causes that compel migration in order to work to alleviate, overcome and eventually prevent them. Third is to ensure that truly voluntary migration can indeed be facilitated and managed to the benefit of the inpiduals and States concerned.

The decisions made by inpidual human beings to uproot themselves, leave their homes and homelands and migrate elsewhere, are based on a number of factors rather than one simple reason. Any discussion of motives for human migration must include consideration of political, economic, social and environmental factors that shape inpiduals decisions to leave.

Put another way, migration cannot be explained only as a rational choice by persons who valuated the costs and benefits of relocating and made a choice they felt most likely to fulfil their needs. Rather, account must also be made of “macro” factors that encourage, induce or often, compel migration. Many people who migrate today do so in response to factors compelling them to move in order to survive and provide for the safety, dignity and well being of themselves and their families.

Positive and negative factors compel migration. The ease of travel today, the widespread awareness of options and conditions in other lands, family and ethnic ties, opportunities –even requirements for international experience to advance in business, in professions, in careers—all make migration more than just an option for many people. And indeed, this should be encouraged, and facilitated, in a globalizing world.

Several main factors that compel migration include (1) increasing armed violence, (2) ethnic and racial conflict, (3) features of globalization, (4) environmental degradation, (5) development-induced displacement, (6) denial of democracy, and (7) large-scale corruption. [3] These causal factors condition the need for protection and assistance to persons who migrate as a result. They are also factors that require cooperation and collective action by States and international institutions to alleviate.

Complex situations make it difficult to distinguish a clear boundary today between refugees and other migrants. There should be no question that people fleeing persecution are refugees; there is a clear internationally accepted definition in the UN Convention and Protocol on the Status of Refugees. However, the nature of military, political and economic conflict in the world has evolved much since the simpler terms of the bipolar world of 50 years ago. It is now more widely acknowledged that other factors besides direct persecution can threaten the safety, dignity and human rights of people. However, there is no international standard to recognize and measure the protection needs for people fleeing generalized civil disorder, environmental devastation or economic collapse that threaten human survival. This question is discussed in more detail below.

An IOM discussion paper several years ago made the observation that it is less the absolute differences between countries that motivate most migration. [4] Rather, people tend to move only when their situation and that of their families falls below a critical threshold of tolerance, below which they no longer perceive possibilities of survival according to local norms of safety, dignity and well-being.

Perceptions of tolerable economic levels and conditions vary widely across different countries and communities, but the most basic consideration is the ability to survive above a local minimum standard of decency. At its essence, displacement today in no small part is the direct consequence of the breakdown or absence of sustainable community and the denial of human dignity.

2.2 Exploitation of Migration and Migrants

At the heart of the dilemma over recognition of migrants’ human rights is their vulnerability to exploitation, especially in marginal, low status, inadequately regulated or illegalized sectors of economic activity. As observers in Asia have often put it, migrant labour fills the “three-D” jobs, dirty, dangerous and difficult. Migrant labour has long been utilized in developed and under-developed economies as a low cost means to sustain economic enterprises –and sometimes, entire sectors that are only marginally viable or competitive. For example, migrant labour has been used in many countries to ensure low cost provision of agricultural produce, to provide domestic service, and to provide services in the “sex industry”.

Migrants, especially those who are in irregular or unauthorized status, can be considered an ideal reserve of very flexible labour. Migrants, especially those without authorization for entry and or employment, are at the margin of protection by labour workplace safety, health, minimum wage and other standards; they often are employed in sectors where such standards are non-existent, non-applicable or simply not respected or enforced.

Migrants and immigrants have often been perceived as able to work long hours at low pay and to have limited possibilities to demand benefits or other protections. Perspective from the ILO and the International Confederation of Free Trade Unions (ICFTU) demonstrates that organizing migrants and immigrants into unions or organizations to defend their interests and rights is often extremely difficult. When it is not considered illegal under national laws, organizing –especially of those without proper authorization to work-- is easily intimidated and disrupted by the threat or actual practice of deportation. [5]

Given their lack of legal recognition or precarious status in host countries, hiring migrants can often be done without payment of benefits, payroll taxes and other costs, representing further savings to employers.

An especially important consideration for economic and political policy is that irregular migrants are perceived as being removable from the territory of the country when domestic unemployment rises and/or when rising political tensions prompt the targeting of scapegoats.

For example, as reported in the International Herald Tribune and other media, immigration raids and internal enforcement against undocumented migrants in the USA were virtually suspended early in 2000. At the same time that the US Immigration and Naturalization Service (INS) quietly suspended internal enforcement and deportations except at the borders, US economic chief Greenspan warned that the most significant threat to the US economy was inflation driven by wage increases. Implicit in Mr. Greenspan's message, and more explicit in comments by other US economic analysts, was a new conventional wisdom that those potential wage increases can be countered by employment of women, undocumented migrants and other reserve workers. News articles made explicit a national policy decision tying non-enforcement of immigration control to labour market and inflation control needs of the economy. [6] The effects of that policy also seem to have been well understood by some unions and undocumented workers themselves. It was reported that undocumented workers in Chicago were able to expand unionization efforts, and to negotiate agreements with employers to demand warrants for any future enforcement actions and to advise them in advance of any planned immigration enforcement raids. [7]

3.3 Globalization

Not a lot of conclusive data is yet available to precisely trace the inter-relations between globalization and migration. Until recently, this dimension had been largely ignored in debates on the consequences of globalisation. Perhaps the most comprehensive review so far is Peter Stalker’s recent book Workers Without Frontiers published in March of 2000 by the ILO.

As the foreword to Workers Without Frontiers highlights,

The book is disturbing in its conclusion that the evidence so far available on the impact of globalization points to a likely worsening of migration pressures in many parts of the world. Peter Stalker finds that processes integral to globalization have intensified the disruptive effects of modernization and capitalist development. While acknowledging that this has been different from one country to another, “the general effect has been a crisis of economic security.” [8]

As Stalker’s book and other sources note, several features of contemporary globalizing economy are contributing to displacement and in some cases to limited re-employment or absorption either in domestic or foreign labour markets. Technological innovation and changes - mechanization, automation, computerization, and robotics render huge productivity increases, but render much human labour irrelevant to extraction, production and distribution of goods - and many services.

Accelerated trade is replacing or undercutting domestic industrial and agricultural production with cheap imports, but at the expense of many jobs in those sectors. A ton of corn to Callao or ton of rice to Manila can now be delivered more cheaply than what local, small-scale labour-intensive production demands. It is argued that the efficiency of mechanized large-scale agribusiness lowers food costs. However, growing a ton of corn occupied several farmers and labourers in Peru, and supported their families – similarly with rice in the Philippines.

Structural Adjustment Programs (SAPs) imposed reductions in government spending, state budgets and state subsidies. Reductions also meant significant reductions in government employment including professionals as well as skilled and unskilled workers. Data seems to indicate that job creation by private sector in many countries affected by SAPs has not matched the numbers rendered unemployed by downsizing governments. In some countries, it has lagged behind. As well, in many countries, structural adjustment conditions included the termination of government subsidies or food price supports that also indirectly supported employment in agriculture, food processing and distribution.

Foreign Direct Investment has been concentrated in economically more advanced countries: nearly 98% of FDI goes to middle and upper income countries; only 2% to the LDCs, those usually with the most need for job creation to make survival at home viable. Furthermore, it appears that much of FDI is concentrated in capital intensive rather than labour intensive production ventures.

3. EXTENSION OF UNIVERSAL HUMAN RIGHTS

Recently, the 50th Anniversary of the Universal Declaration of Human Rights was celebrated world-wide. The central notion of human rights is "the implicit assertion that certain principles are true and valid for all peoples, in all societies, under all conditions of economic, political, ethnic and cultural life." Human rights are universal ‑ they apply everywhere; inpisible ‑ in the sense that political and civil rights cannot be separated from social and cultural rights; and, inalienable ‑ they cannot be denied to any human being. This is the basis of the concept of «human rights for all» articulated in the Universal Declaration.

The extension of application of these universal human rights vulnerable groups has been a long and difficult process. Two major covenants covering the broad definitions of political and civil rights, and economic, social and cultural rights were adopted in the mid‑1960s. Together with the Universal Declaration, these are often referred to as the "International Bill of Human Rights", universally applicable to all human beings.

However, in practice, it became evident that the principles elaborated in the «Bill of Rights» instruments were not applied to a number of important groups. As a result, specific conventions explicitly extending these rights to victims of racial discrimination, women, children, and migrants were elaborated over the three decades from 1960 to 1990.

Main principles elaborated in these instruments that are especially important for migrants and other non-nationals are outlined in the accompanying article “Setting Principles and Building Capacities” by Heikki Mattila in this special issue of International Migration

The conventions regarding women, children and victims of racism and discrimination have been widely ratified. However, there has been strong resistance to recognition of rights of the major remaining vulnerable groups: migrants and indigenous peoples. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families is not yet in force, and ratifications were slow in coming until very recently. Progress is stalled on elaborating an instrument recognizing rights, particularly collective rights, of indigenous peoples.

Positions taken by some governments at the World Conference on Human Rights in Vienna already in 1993 signaled a challenge to several decades’ progress in expansion and extension of human rights towards full universality, inpisibility and inalienability. Furthermore, new challenges are being raised over whether economic, social and cultural rights are indeed at the same level with and inpisible from civil and political rights. Again, migration and uprooted people provide a marker to this dilemma

The 1990 International Convention on migrants rights

The 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families has been characterized as one of the seven fundamental human rights instruments that define basic, universal human rights and ensure their explicit extension to vulnerable groups world-wide. [9] The other six are the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention for the Elimination of Racism and Racial Discrimination (CERD), Convention Against Torture (CAT), Convention for the Elimination of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). [10]

Seven points emphasize the importance of this Convention:

1 Migrant workers are viewed as more than laborers or economic entities. They are social entities with families and accordingly have rights, including that of family reunification.

2 The Convention recognizes that migrant workers and members of their families, being non‑nationals residing in states of employment or in transit, are unprotected. Their rights are often not addressed by the national legislation of receiving states or by their own states of origin.

3 It provides, for the first time, an international definition of migrant worker, categories of migrant workers, and members of their families. It also establishes international standards of treatment through the elaboration of the particular human rights of migrant workers and members of their families.

4 Fundamental human rights are extended to all migrant workers, both documented and undocumented, with additional rights being recognized for documented migrant workers and their families, notably equality of treatment with nationals of states of employment in a number of legal, political, economic, social and cultural areas.

5 The International Convention seeks to play a role in preventing and eliminating the exploitation of all migrants, including an end to their illegal or clandestine movements and to irregular or undocumented situations.

6 It attempts to establish minimum standards of protection for migrant workers and members of their families that are universally acknowledged. It serves as a tool to encourage those States lacking national standards to bring their legislation in closer harmony with recognized international standards.

7 While the Convention specifically addresses migrant workers and members of their families, implementation of its provisions would provide a significant measure of protection for the basic rights of nearly all other migrants in vulnerable situations, notably those who are in irregular situations.

Ratification or accession by 20 states is required for this instrument to "enter into force," in other words, to become operative and part of international law. It may then be used as an authoritative standard of good practice, and thus may exercise strong persuasive power over non-party States as well, even though they have not agreed to be bound by its standards. So far, 16 States have become States Party to the Convention. Other States have utilized provisions in the 1990 Convention as a guide to elaborating national migration laws. A notable example is Italy, which based much of its comprehensive new national migration law adopted in March 1998 on the provisions and standards of the 1990 Convention.

4. MAIN ISSUES TODAY

4.1 Lack of Progress on Adoption and Implementation of Standards

The record of only 16 governments ratifying or acceding to the 1990 International Convention on migrants rights in ten years has not been encouraging, even if the rate of ratification has increased in the last two years [11] . So far, all States Party to this Convention are primarily countries of origin of migrants. In a formal sense, the very slow progress in ratifications of the 1990 International Convention on migrants’ rights, coupled with explicit disinterest in this instrument, symbolize a broader general resistance to recognition of application of human rights standards to migrants, particularly undocumented migrants.

Until recently, virtually no attention had been given to promoting this Convention, either by concerned institutions within the UN system nor by governments which had earlier promoted and participated in its elaboration. Until the UN Center for Human Rights (now the Office of the UN High Commissioner for Human Rights) published its Fact Sheet number 24 on Rights of Migrant Workers in September 1996 which included the treaty text, the convention was only obtainable, often with difficulty, in the form of photocopies of the original 1990 General Assembly resolution. Until January of 2001, there was not one person anywhere in the world, in any international organization, in any government, or any civil society group engaged with full-time responsibilities related to promoting this Convention. This contrasts sharply to the extensive numbers of staff, volunteers and collaborators mobilized by international secretariats that assured rapid entry into force of the Convention on the Rights of the Child, the Convention on Desertification and, most recently, the Convention Against Anti-Personnel Landmines.

It can be noted that, similarly, in the last ten years there has been neither active promotion nor any new ratifications of the two ILO Conventions related to migrant workers’ rights.

Beyond the lack of promotion, a degree of discouragement has been articulated, in particular by a number of governments. On a number of occasions over the last decade, this author heard comments both in formal statements in international and national meetings and in informal discussions by officials and diplomats representing European and other Western governments that the 1990 Convention was:

· impractical and unrealizable as an international standards in part because it is too ambitious and detailed;

· irrelevant because no host states have expressed willingness to adopt it;

· essentially 'dead' given the absence of progress on ratification by states in the first eight years after adoption.

Discreet diplomatic pressure was reportedly exercised by some European governments on at least one European Union member state to dissuade any formal consideration of ratification of the 1990 Convention. [12] In an oral statement to the UN General Assembly in December 2000 during the discussion of a resolution on migrants human rights, a US delegate suggested that the lack of progress on ratification made unjustifiable any further expenditure by the UN on publicity or promotion. [13]

Meanwhile, proposals have been made in various international fora since the early 1990s for elaboration of guidelines or minimum standards explicitly less strict and specific than those of the 1990 Convention. Such minimum standards or guidelines would substitute the Convention’s explicit standards by general, vague and non-enforceable «principles» instead of detailed and explicit standards with monitoring and enforcement mechanisms. Discussion is underway within the International Labour Organization (ILO) towards revising or replacing its two migrant worker rights conventions, possibly with what is termed a general "framework convention.”

To date, the only official review of the status of international instruments related to protection of migrants rights is that reported by the International Labour Office (ILO) in 1999 regarding the situation and prospects for its two conventions relating to migrant workers rights. Similarities in the concerns covered by the ILO Conventions suggests that issues raised regarding these instruments are also relevant to the 1990 Convention. The ILO Migration for Employment Convention (Revised), 1949 (No. 97), and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) were observed to have relatively low rates of ratification, 41 for Convention 97 and only 18 for No. 143

In 1996, an ILO Working Party on Policy regarding the Revision of Standards invited governments to report on the state of law and practice regarding these two instruments. A large number of countries replied to the survey, allowing the Working Party to analyse a range of views from all regions. An extensive report on the survey results was presented to the 1999 International Labour Conference. Several governments replied that they did not plan to ratify either of these Conventions, and several countries had ratified one but had no plans of ratifying the other one. In analysing the responses from governments, the ILO Working Party noted that the most common reasons cited for failure to ratify the Conventions are:

· only a small number of migrant workers in a territory;

· economic instability and high unemployment rates prompting Governments to give preference to nationals over foreign labour;

· lack of the necessary infrastructure to apply the Conventions and high cost of implementing the instruments;

· government intervention required by these instruments is not considered the best

approach;

· reluctance to enter into multilateral commitments in the area of policy on foreigners;

· complexity of a country’s immigration legislation and practice as well as the fact that its legislation on this subject is constantly evolving;

· these (ILO) Conventions are no longer considered appropriate given the characteristics of contemporary international migration.

pSome countries also noted that they perceived considerable legal difficulties in application of the Conventions. In the case of Convention No. 97, the provisions most frequently cited by governments as a source of difficulties are Articles 6 (equality of treatment between foreign workers and national workers) and 8 (maintenance of residence rights in the event of incapacity for work). In the case of Convention No. 143, Articles 8 (protection in the event of loss of employment), 10 (equality of opportunity and treatment) and 14(a) (right of migrant workers to occupational mobility) created the most difficulties.

Based on the survey analysis, the Working Party reached several conclusions. Taking into account these difficulties, its first conclusion nonetheless upheld the value of these instruments:

On the whole the ILO instruments seem to have fulfilled their role in orienting national laws and regulations in certain areas, including the organisation of migration flows. Generally speaking, countries tend to follow the provisions made by the instruments in broad terms, but less so when it comes to provisions calling for more specific commitments, in particular with regard to the protection of migrant workers.

Two other conclusions reached by the Working Party are also particularly relevant to the discussion of the 1990 International Convention. These conclusions highlighted that:

-ensuring equality of treatment between migrant workers and national workers as regards conditions of work, social security and access to social services does not raise any difficulties in principle;

-the methods by which States carry out their obligation, under Article 3 of Convention No. 143, to “suppress clandestine movements of migrants for employment and illegal employment of migrants”, may in some circumstances constitute violations of the fundamental human rights of workers.

Prospects for further ratifications

Particularly notable is that a number of governments stated that ratification of one or both of the ILO Conventions was envisaged or being studied, without however indicating a time frame. These included the governments of Argentina, Australia, Colombia, Croatia, India, Lithuania, Peru, Poland, Sweden, Syria and Yemen. For example, the government of Sweden was reported to be “again investigating the possibility of ratifying Convention No. 97 in the light of changes that have occurred in its legislation”. The government of the Syrian Arab Republic stated that it had begun to take concrete steps to ratify these Conventions. Other countries, Albania, Brazil, Chile, Finland, Luxembourg and South Africa, reported that ratification is envisaged once appropriate legislation has been adopted. The Republic of Korea, Morocco, and Tajikistan requested ILO technical assistance, with a view to facilitating the process of ratification.

A 1994 review regarding the obstacles and prospects for ratification of the 1990 Convention by Prof. Shirley Hune of the University of California (Los Angeles) and Dr. Jan Niessen [15] , now director of the Brussels based Migration Policy Group, emphasized that the 1990 Convention “had the misfortune of being adopted in a time of great economic, social and political instability”, which they assessed as a major impediment to ratification. In a context of increasing unemployment, they noted that a relatively hostile climate towards foreigners, particularly migrant workers, made it much more difficult for governments of host countries to adopt standard promoting equitable treatment for migrant workers. Their review went on to identify thirteen specific impediments to ratification, most of which coincide with the outcome of the ILO survey. They also identified:

--lack of awareness and knowledge of the 1990 Convention;

--lack of priority for governments to address migration issues;

--misperception of the character of the Convention, particularly that it is seen as “an instrument for liberal immigration policies”;

--similarly, a perception that granting rights to immigrants will only attract more of them;

--government views of the non-applicability of the Convention to their respective goals and policies on immigration.

The Hune-Niessen review noted that the comprehensiveness of the Convention, and the related issue of substantial financial costs to supervise and implement its numerous provisions also represent a deterrence for some states to ratify. Other reasons cited included the poor record of some states to adopt any international standards related to human rights and the non-acceptance by some states of measures acknowledging the rights of all migrants, particularly those in irregular or “illegal” situations.

An additional review of obstacles to ratification of the 1990 Convention was included in the recent book on migrant workers in international human rights law written by Prof. Ryszard Cholewinski. [16] He notes:

First, the ICMW (1990 Convention) is a complex and detailed instrument, and contains new wording, which in many cases departs from established human right language. Secondly, the recent proliferation of specific human rights conventions hardly facilitates the acceptance of the ICMW’s sizable text. Technical questions alone, therefore, may prevent many states from speedily accepting its provisions. Thirdly, the lack of publicity about the ICMW has also contributed to misconceptions about the purpose of the instrument. [17]

Prof. Cholewinski suggests that there are several substantive obstacles, in particular that “provisions explicitly granting rights to illegal migrants are likely to hinder ratification, despite the fact that the ultimate aim of this approach is to end irregular migration altogether.” His brief elaboration notes that the continuing global economic uncertainty, deepening gulfs between poor and wealthy nations, and the growth of migrant populations of different racial and cultural backgrounds have reduced sympathy for their conditions in the developed countries. Nonetheless, he adds that, for the developing nations, “the ‘new wind of liberalism’ sweeping the world endangers the already precarious situation of certain vulnerable groups, such as migrant workers and their families, by failing to cater for their fundamental needs.” His conclusion is that the very low figure of ratifications to date “is a clear reflection that, for the moment at least, the political will required to protect migrant workers and their families is lacking.”

In the experience of the author, who also serves as Coordinator of the Global Campaign for Entry into Force of the 1990 Convention, the salient obstacles to wider ratification of this Convention appear to have been a general lack of awareness of it, an almost total lack of promotional efforts, and, fundamentally, a lack of political will by States to extend basic human rights protections to all migrants. As noted earlier, winds of change seem to be altering the earlier stagnation of this Convention. Since establishment of the Global Campaign in March of 1998, the number of States Party has doubled and the number of signatories and others expressing commitment has quadrupled, a considerable shift from the record of the previous eight years. The 1990 Convention is now expected by most observers to enter into force during the year 2001.

4.2 “Illegalization” of migrants

The most basic manifestation of absence of respect for fundamental human rights of migrants may not be so much in the lack of adoption or implementation of human rights standards for uprooted people. Rather, it is in the denial in practice that such rights even exist or are applicable to some human beings. The sharpest manifestation of this is the now widespread categorization of persons as «illegal migrants.» In a word, this categorization renders such human beings simply outside the applicability and protection of law, contrary to the inalienability of human rights protection. The imagery of this characterization is of persons with no legal status, no legal identity, no existence. The practice directly contradicts two of the fundamental human rights enshrined in the Universal Declaration of Human Rights, article six of which states that every human being has a right to recognition before the law, article seven states that every person has right to due process. In the words of the Rapporteur of the International Conference on Migration and Crime held in [18] Italy in 1996, “However, the term illegal migrant (or immigrant) implies a status of criminality ipso facto before any judicial determination of status. Moreover, it implies that an ‘illegal’ migrant is therefore a criminal. Thus, the term has to be avoided…”

The designation of persons as «illegal» and therefore denied both legal recognition and protection of their basic rights is establishing legal and juridical precedents in many countries and internationally. In the view of some observers, if a major vulnerable group is de facto exempted from recognition of basic rights, it leaves open the door to measures further restricting or ignoring their rights. And once such a precedent is well established, it becomes much easier to extend such exemptions to other vulnerable, «undesirable» or unpopular groups, further undermining the universality of human rights protection.

This “illegalization” of migrants is but the most dramatic manifestation of the resurgence of tendencies to associate migrants and migration with crime and criminality, unemployment, disease, and other social ills. Migrants, precisely because of their situation as non-nationals and often their precarious status, make convenient scapegoats to explain problems of crime rates, deteriorating public health, lack of housing and so on that usually result from domestic causes, including the lack of adequate government services. Even usually progressive governments are not immune to framing migration as a problematic phenomena requiring drastic measures: a press release in March, 2000 by the office of a Canadian government minister announced allocation of "$3 million to Combat Migration Causing Development Problems in South Africa. [19] "

Ironically, research carried out in several Western countries regarding the relationship between migrants and crime has shown that, first of all, migrants and immigrants tend to represent lower per-capita involvement in criminal activity than comparable control samples among native populations.

The first studies, conducted early in the twentieth century by the then American Institute of Criminology, at Northwestern University, Chicago, clearly established (despite imperfect research methods, by modern standards) that immigrants were more law-abiding than native-born inhabitants in America. (…) Post World War II studies were conducted in the 1960s by Franco Ferracuti. The results were equally clear: immigrants committed fewer crimes (in Europe) than their peers in countries of origin, or comparable groups of citizens in the host country. Several of the reports presented at this conference support such earlier findings as of today. While the reasons for such low immigrant crime rates have not been scientifically assessed, it may be surmised that three factors play a role: 1. the desire to succeed in the chosen new environment; 2. the availability of support groups of earlier and now settled immigrants from the same areas of immigration; 3. the fear of deportation. [20]

However, migrants and immigrants were also shown to be disproportionately higher victims of crime. In both cases, researchers suggested that migrants/immigrants status as non-nationals tended to inhibit criminality because apprehension usually meant very serious and life-disruptive penalties not applying to nationals, namely deportation. On the other hand, migrants especially those in irregular situations, are perceived as far less likely to denounce crimes to authorities and seek police protection, therefore making them easier prey for such crimes as theft, extortion, physical abuse, non-payment, etc.

Similarly, health data suggests that migrants are not usually primary vectors for transmission of communicable diseases. Perhaps most striking in this regard is recently emerging data on AIDS transmission in several regions indicating that the absence of prevention measures in contexts of extensive and frequent cross border business, merchant and transportation worker travel and tourism --notably sex tourism—appear to be far more significant in spreading AIDS-HIV infection than movement of migrant workers or immigrants.

Providing a degree of basic human rights protections for all migrants could actually aid in crime reduction, both by encouraging migrants to seek police protection and to expose and denounce crime. Facilitation of access to health services by all migrants would also serve the interest of public health, by ensuring that persons present in a given country do seek prevention and treatment of sickness or injury, rather than avoiding treatment out of fear and thus remaining at risk of affecting others.

4.3 Elaboration of a Migration Control Framework

The reviews referred to above touch on what appears to be a solid trend adverse to wider recognition of human rights of migrants. The Hune-Niessen study identifies that “migratory movements are increasingly being examined from the perspective of security and stability within and between states. Large and unorderly movements and the settlement of migrant workers (new ethnic minorities as they are called in many Western European states) are perceived as undermining internal and external security and stability.”

This perception of migration and its consequences appears to be widely shared among government policy makers in all regions. Inter-governmental cooperation on migration 'management' has expanded extremely rapidly. Five years ago, only a few specialized regional inter-governmental fora addressing inter-governmental and international migration “management” existed in Europe, along with one among Central American national migration offices and one inter-regional entity, the Inter-Governmental Consultations on Migration and Asylum (IGC), involving Western European and North American governments.

Today, there are regional inter-governmental consultative processes on migration management established and functioning in every region of the world. These include:

--the CIS Process, initiated in 1994 and consolidated at the International Conference on Refugees, Asylum and Migration in the Commonwealth of Independent States (CIS) held in Geneva in 1996.

--The Puebla Regional Consultations on Migration for Central America, North America and the Dominican Republic.

--The Asia-Pacific Consultations on Migration and Asylum (APC), and the related Manila Process which incorporate governments across those regions. An important event in development of Asian cooperation was the Bangkok Declaration of April, 1999 in which the governments of the region adopted a commitment and framework to address irregular migration.

--The Dakar Process, for Central and Western Africa, established with the October 2000 consultation and resulting declaration in Dakar, Senegal.

--MIDSA, the Migration Dialogue for Southern Africa, which evolved out of the IMP International Migration Policy Course for (governments of) Southern Africa held in Pretoria in April 1999 and subsequent consultations organized by the International Organization for Migration and the Southern Africa Migration Project (SAMP).

-- The Conference on Migration Policy in Central Asia, the Caucuses and Neighboring States, held in Kyrghistan in May 2000, which established an ongoing follow-up process.

-- The Lima Process for South America, established at a consultation held in Lima, Peru in 1999; it was explicitly initiated in view of the success of the Puebla process for Central America.

Efforts are underway to establish a more formal migration policy network among the States around the Mediterranean.

Most of these established or emerging regional mechanisms are being assisted by IOM with organizational and logistical support; IOM serves formally or informally as secretariat for several.

There are several specific entities in Europe, not to mention a number of specialized committees and agencies operating under the general framework of the European Union. In addition the Council of Europe, which incorporates 41 member states from the Atlantic to the Urals, has a Working Group on Migration (CDMG) and an Expert Group on Integration and Community Relations, addressing inter-governmental concerns.

Several of these consultative mechanisms have permanent secretariats, such as the Intergovernmental Consultations for Europe, North America and Australia (IGC), the Budapest Process for Eastern and Central Europe, and the Asia Pacific Consultations.

NGOs and migrant groups have no access or dialogue to contribute to and participate in several of these international policy formulation and cooperation processes. The Puebla Consultations Process for Central and North America is a notable exception, in part due to a history of active regional NGO coordination and engagement, dialogue with governments, and advocacy, including specific requests to be consulted in regional structures, contacts, and operational cooperation.

Funding for consultations and follow-up activities by most of these entities has been provided by western States; participating governments in all regions have made varying levels of contributions of time and resources as well.

A major impetus for the rapid emergence of many of these fora has been an explicit and generalized perception by governments that irregular migration has increased rapidly, is out of control, and for a number of countries, presents serious threats to national security and stability. Consequently, attention to topics of border control, intelligence cooperation, combating organized crime, cooperation in return of migrants, information gathering and other concerns has dominated agendas. Conversely, human rights and social service considerations have been given little attention. Service organizations, NGOs and affected migrant groups have not had access to contribute in most of these emerging mechanisms, with the notable exception of the Puebla process for Central and North America.

Some level of formal or informal agreements for ongoing consultation and cooperation in specific areas are emerging in most of the mechanisms. A number of bilateral accords have emerged out of such increased inter-governmental consultation, some make mandatory return of migrants to a country previously transited, some now have been established on common visa spaces, the latter often modeled on the Schengen Accord adopted by a number of European states.

National immigration and border services of several Western countries are actively providing training, assistance and advice to counterpart agencies in other countries throughout the world. For example, the US Immigration and Naturalization Service (INS) has a mission office in Pretoria providing training to governments and assisting in organizing regional migration consultative processes for Southern Africa. However, migration management and border control systems and measures based on interests and experiences of developed industrialized countries may not be the only viable models for developing countries seeking to promote regional integration.

Over the last decade, measures have been put in place by States world-wide to place tighter controls or restrictions on cross border movements than previously existed. Imposition of requirements for visas has proliferated, not only by Western countries. Movements across borders in regions where intra-regional migration had been historically commonplace, such as Central America, Central Asia, and Southern Africa are also being increasingly subject to visa requirements and other controls. Some observers suggest that this tightening of restrictions is itself a significant causal factor in the dramatic increase in trafficking and smuggling of migrants.

Meanwhile, the emergence of two specific Protocols on trafficking and smuggling of migrants related to the new International Convention Against Transnational Organized Crime establishes legal instruments addressing migration in the context of crime suppression, prevention and punishment. While such measures are needed to combat the involvement of organized crime in trafficking of persons, there are serious risks if they are adopted and implemented outside a framework of parallel commitments to relevant human rights instruments. Without such commitments, adoption of these Protocols offers an opportunity for avoiding strong human rights protection standards in the field of migration by substitution of adoption of the Protocols as States response to migration challenges. The Convention and these two Optional Protocols were recently adopted by the UN General Assembly, some 110 countries have already signed the Convention and some 80 one or both of the protocols [21] . Adoption of these instruments without parallel adoption of the 1990 UN Convention and/or relevant ILO conventions would signal implicitly, if not de jura, elaboration of national legal regimes on migration that subordinate protections to restrictive controls on human mobility and strict enforcement concerns.

States in fact are confronted with a very complex set of circumstances in addressing migration. Elements and considerations can include:

National labour market demand for both skilled and unskilled migrants in formal and/or informal sectors; domestic unemployment; population density; impact of remittances; loss of skills (“brain drain”); temporary immigrations schemes, border control mechanisms; visa policies; exclusion and expulsion systems; return and reintegration schemes; naturalization policies; integration policies and structures; humanitarian aspects and human rights policies; refugee policies; family reunification; social, educations and medical structures; public information; migration information systems; national security considerations; foreign policy considerations; development aid policies linked to migration pressures from specific sending countries; cooperation and coordination with other States; association with other States under regional migration policies; cooperation with non-governmental and international institutions; et al. [22]

Migration thus affects the concerns of most branches of government, including ministries of Interior, Foreign Affairs, Labour/Employment, Health, Education, Housing, Welfare, and/or Social Affairs, and departments of Immigration, Refugee Services, Border Patrol, International Cooperation, Human Rights, Armed Forces, Public Security, National Police, Intelligence, among others. However, the elaboration of migration-related policies has been dominated in many countries by one or two ministries, usually interior or home affairs. There is still little intra-governmental consultation among other ministries or departments directly affected by migration, and even less effective cooperation and coordination.

National policy debates are often further shaped –or distorted-- by the extent to which posing migration as a threat to internal stability or security is perceived as a compelling argument to obtain increased allocations of funds and other resources by concerned government agencies.

4.3 Dichotomization of Human Rights

4.3.1 Inpisibility of Rights vs Contemporary Protection Regimes

Many people are displaced today due to conditions that implicitly or explicitly constitute violations of their economic, social and cultural rights, both inpidual and collective. However, current international law has tended to recognize only victims of violations of certain political rights -- refugees -- as needing protection and assistance. Contrary to the notion of inpisibility, those victims facing denial of economic, social and cultural rights that often threaten their very survival, as communities as well as inpiduals-- have no such recognition.

As an outcome of political and historical factors, an international refugee protection regime was set in place based on a definition of refugee contained in the 1951 Convention and 1967 Protocol on the Status of Refugees. For the purposes of these instruments, a refugee is defined as “a person, who is outside his/her country of origin and, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is unable or unwilling to return”

This refugee regime is thus based on a definition which recognizes the seriousness of violations of political and civil rights, and the need for international protection of victims of such violations.

The Refugee Charter of the Organization of African Unity and the Cartagena Declaration by States of the Americas expand further recognition of circumstances giving rise to protection needs, such as generalized violence and foreign intervention.

However, no such instrument nor protective measure exists for people who may be compelled to leave their homelands as a consequence of violations of economic, social and/or cultural rights, where victims perceive that survival in minimally acceptable conditions is at risk or impossible.

Repeated reiterations of the inpisibility of political and civil rights with economic, social and cultural rights have been made in international, inter-governmental fora, over the years. Yet in contrast to this general acknowledgement of the inpisibility among rights, neither the seriousness of grave violations economic, social and cultural rights nor the need for protection for victims are acknowledged in an international regime.

Conventional wisdom over the last two decades has been that opening a discussion of expanding or changing the refugee definition in the UN Convention would be counterproductive. Given the actions on the part of a considerable number of States to limit the scope of application of the refugee definition, such concerns remain well-founded.

Nonetheless, it is becoming increasingly difficult to ignore the dichotomy between a regime that recognizes victims of violations of political and civil rights, and non-attention to the consequences of violations of economic, social and cultural rights. The displacement consequences of serious violations of economic, social and cultural rights, and the potential protection needs of some victims of such violations, should eventually compel an examination of possible measures to respond to those needs in an international context. While responses to such needs may not necessarily follow the models of the current international refugee protection system, the discussion cannot be avoided indefinitely within the context of an international human rights regime based on a notion of inpisibility and universality.

Some of the characterizations often made by governments, inter-national agencies and even refugee advocates have tended to present a polarized perception to distinguish between ‘bona-fide’ refugees and other persons in migration. Characterizations of migrants perceived not to have asylum claims in accord with the Convention definition have all too often incorporated labels and terms of “gate-crashers,” “abusive claimants,” opportunity seeking migrants, economic migrants, etc. In the past, even official UNHCR pronouncements were not exempt from such characterizations.

These labels and terms implicitly dismiss any nuances or recognition of complexities of conditions and motivations for migration, and avoid any consideration of whether some persons they are applied to might have rights based motivations for displacement. Such characterizations are not helpful in debating the wider questions of application of a human rights framework generally to migration and migrants. The sometimes appropriation of the term “protection” to refer to the specificity of provision of protection to refugees from refoulement under the terms of the 1951 Convention, also has at times obscured the broader application of this term in the field of migration to address the protection of the rights of all migrants.

The office of the UN High Commissioner for Refugees (UNHCR) has finally been giving increasing attention to the relationship between refugees, asylum seekers, and other migration, after, in its own admission, doing very little for a number of years. An internal UNHCR staff working group worked over the last year to very thoroughly re-examine the relationships between migration and asylum, and to suggest new policy options. The working group produced an initial report in November, 2000, which has not yet been finalized for public distribution. The draft however, expresses a broad new perspective on the part of the institution, including very nuanced characterizations on the contradictions and realities of overlaps and mixed motivations among different groups migrating today. The output of this working group acknowledges and discusses many of the issues addressed in this article, and offers some challenging recommendations for the agency itself, for member governments and for other partners. It is anticipated that the conclusions and recommendations of the working group will be fed into the UNHCR Consultations currently being conducted with governments, NGOs and other partners world-wide.

4.3.2 Protection versus Control

Perhaps the fundamental challenge for the extension of human rights to migrants is the sharpening contention between basing an overall international approach to migration on a framework of control versus establishing a migration management framework in which human rights is a fundamental basis.

In addition to the generally control focused agendas of some inter-governmental processes as described above, the current international debates regarding refugee protection also illustrate this challenge. Some UNHCR documents explicitly describe a polarization between refugee protection and immigration control. [23]

Focusing on that polarity pre-defines the discussion in terms of control, law enforcement and particular perceptions of States’ interests in these arenas. Such a focus often more specifically reflects the interests of certain administrative departments or units within State structures, who find promoting a control-focused agenda as a useful vehicle to capture attention and budgetary resources. That focus almost inevitably subordinates both fundamental humanitarian and human rights considerations and economic and developmental concerns to a secondary and consequential role, rather than addressing the constellation of relevant considerations in a terminology or framework management of migration.

Unfortunately, the predominance given to migration control, particularly in Europe, is both root and reflection of the fundamental contemporary impediments to rationally and effectively addressing international migration. Migration, regular and irregular, has, does and will continue to exist as inexorably as economic forces at work in a globalized economy. The international community –sometimes reluctantly—acknowledges the need to manage and regulate movements of capital, goods, technology, services, information, etc., whether through formal means or “market mechanisms.” It is evidently contradictory when this logic is not also applied to migration. Ironically, as we are seeing, even Europe is now suddenly acknowledging both the need for (im)migration and the need for substantial efforts to regulate it.

Certain controls may well be a part of (im)migration regimes, but cannot be either the sole or primary determinants. To be effective and viable over time, migration policies must be built the other way around, based on long term economic and social development considerations in context of respect for international humanitarian and human rights norms. Control measures revert then to serve as one of the management mechanisms to implement and achieve longer-term goals in the context of phenomena that States have to deal with no matter what.

4.4 Racism, Xenophobia and Discrimination

The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCRX), to take place in Durban in September 2001, has brought into focus the enormous dimensions of racism, discrimination and xenophobia reflected in treatment of migrants and implicit in denial of their human rights. The preparatory events for this conference in Europe and the Americas have already highlighted acknowledgement by governments across these regions that growing racist and xenophobic hostility directed at non-nationals, including migrants, refugees, asylum-seekers, displaced persons and other foreigners is serious denial of human rights, human dignity and security.

A growing volume of documentation demonstrates that manifestations of anti-foreigner hostility include incitement to and actions of overt exclusion, hostility and violence against persons explicitly based on their perceived status as foreigners or non-nationals, as well as discrimination against foreigners in employment, housing, health care and other aspects of interaction in civil society.

From 1991-98, the ILO conducted a research project aimed at documenting and reducing discrimination in employment against migrant workers. [24] The project was focused on a number of countries in Western Europe and North America, and its findings [25] showed discrimination in access to employment to be a phenomenon of considerable and significant importance in all countries covered by the research. Overall net-discrimination rates of up to 35 per cent were not uncommon, meaning that in at least one out of three application procedures migrants/minorities were discriminated against. As a consequence of the rigorous research methodology, the discrimination rates uncovered by the project were assumed to be conservative estimates of what is happening in reality.

News media around the world have reported on the event more virulent manifestations of xenophobia now rampant in many places. These include new or continuing brutal attacks on migrants and refugees and their residences in Argentina, France, Germany, South Africa, the USA to name only a few countries affected. Other examples are recent gang attacks, widespread killings and mass expulsions of tens of thousands of African migrant workers from Libya, killings of Haitian migrant workers in the Dominican Republic, overt anti-foreigner manifestations in Japan and Korea, executions of migrant workers in the Middle East, the list is long.

The association of migrants, immigrants, refugees and displaced persons with crime and criminality, and utilization of terminology of illegality to characterize persons are also seen as manifestations of xenophobic hostility.

A major concern is the restricted application or non-application of basic human and legal rights to non-nationals in laws and procedures of States. Such restrictions are usually accentuated for foreign nationals present without authorization to enter, remain or be employed in their territory, making them especially vulnerable to abuse, and unwilling or unable to seek protection from authorities when confronted with xenophobic violence.

A draft document prepared by a number of NGOs for the World Conference notes that:

Tensions and manifestations of racism and xenophobia are fostered by severe economic inequalities and the marginalization of persons from access to basic economic and social conditions. Especially targeted are migrants, refugees, displaced persons, and non-nationals: those perceived to be outsiders or foreigners.

The growth of often-violent racism and xenophobia against migrants and refugees is fed by restrictive immigration policies; increasingly narrow interpretations of government obligations to protect refugees; the resulting reliance by all categories of migrants on often clandestine means of entry; the resultant criminalization of so-called illegal migrants; the stigmatization of refugees as "bogus asylum seekers"; and the scapegoating of migrants and refugees as criminals and the cause of unemployment [26] .

In many societies and States, a particular historical, cultural and sometimes racial identity continues to reign as an official and popular self-definition. However, in part as a reflection of increased migration, virtually all countries today are or are becoming more multicultural, with rich persities of racial and ethnic identities, cultures, languages, traditions, religious faiths, and national origins than such classic national identities acknowledge. A promotion of “multiculturalism” -- respect for the values and identities of others – is seen as one of the necessary components of changing attitudes and reducing expression of racist and xenophobic hostility against migrants, refugees and other non-nationals.

4.5 Absence or Denial of Resources

At the global level, no international organization –UN, intergovernmental nor NGO, has full-time staff and corresponding resources allocated to monitoring and promoting protection of human rights of migrants in general. A striking manifestation of this is the situation faced by the UN Special Rapporteur on Human Rights of Migrants, who has only one half time assistant, travel allocations for only one mission per year, and is offered no compensation other than coverage of travel expenses and per-diem while on official mission. Granted this is also the situation faced by other Special Rapporteurs on thematic human rights issues. However, complementary attention to some of the other pressing international human rights dilemmas is provided through treaty bodies, specialized agencies and NGOs, which also have staff capacity and resources that do not exist for migrants rights concerns. This resource starvation, particularly accentuated for responses to migrants’ human rights, is a sad commentary on the funding priorities of many UN member governments.

In a sad parallel, little funding has been made available from any public or private source for international NGO or IGO initiatives to promote standards, provide for staff, fund publications or communications, networking, or other activities specifically addressing human rights of migrants.

The few organizations which have sought such funding from their donor bases or from foundations in Western countries have consistently been informed that human rights of migrants is not a priority and no funds can be made available. In 1998, the two main Scandanavian church agency funders for migration-related activities of the World Council of Churches indicated they would no longer provide funding for this area of activity. Over the last three years, more than twenty North American foundations and European funding agencies that prominently support refugee, humanitarian and general human rights initiatives have turned down requests from the only international non-governmental organization focused on promotion of migrants human rights; when a reason was given it was that funding this area of concern is not a priority or not possible.

Reasons for this appear to be complex, and not solely based on the political sensitivities raised by the topic of migrants’ rights. An explicit tendency manifested in recent years by a large number of private foundation and other non-State donor agencies in industrialized countries is to increasingly concentrate funding on regional and local based initiatives, often within a select number of specific countries. This has resulted in less attention being given, both in internal agency structure and in grants, to supporting global or inter-regional initiatives.

The notable exception to this resource starvation is in the field of trafficking. Governments and international organizations are giving considerable attention to addressing trafficking: IOM, ILO and the OHCHR each have full time staff, have organized major conferences, and IOM, ILO and UNDP have million dollar regional programs on trafficking. Governments and private donors have provided considerable funding to NGO initiatives addressing trafficking and provision of protection and services to victims of trafficking, especially in Asia and Europe, more recently also in the Americas. While this attention and support concretely contributes to extending awareness of human rights protection issues and needs, it is nonetheless a context where crime control, prevention and policing have generally taken precedence over a 'standards' approach, which could define trafficking and law enforcement in a human rights context.

4.6 Lack of Documentation, Research and Analysis

The lack of attention to and resources for migrants human rights also translates into a dearth of documentation on the incidence and character of abuse or denial of rights, a relative lack of credible data on the general conditions faced by migrants, and not a great deal of general research and literature on the topic. As noted in the introduction, a review of migration literature shows that, in many bibliographies, human rights of migrants is not even listed as a topic; when it is, the number of entries are few.

The lack of data hampers an accurate assessment of the extent, nature and characteristics of abuse. The lack of research and documentation has contributed to the lack of attention and resources allocated to respond. And certainly, to the extent that good policy requires good data, the lack of information, research and analysis inhibits effective policy formulation and implementation by governments, international agencies and civil society actors.

4.7 Tensions between Globalisation and Protection of Migrants

As noted earlier, several features of contemporary globalization are contributing to human displacement and to limited re-employment or absorption in domestic and foreign labour markets. Technological changes, while producing huge productivity increases, are also eliminating many jobs extraction, production and distribution of goods and services as well.

In a world where movement across borders is increasingly controlled and restricted, increasing displacement leads inevitably to increasing irregular migration. The propagation of images of uncontrolled movements and criminal migration produces loud and clear demands for “law and order” regarding migration control that cannot be ignored by government officials responsible for migration policies.

Numerous observers have noted that globalization has led to increasing concentration of power and wealth in fewer hands, within countries and internationally. It appears less and less possible for national economic and social mechanisms –as they currently function-- to adequately meet the needs of large sectors of populations in many countries. This increasing concentration of wealth is not leading to allocation of the resources necessary to administer promote and defend human rights in local, national and global contexts.

It appears that reductions in allocations of resources to meet human needs and to uphold human rights may be associated with arguments and measures that relativize such rights, particularly economic, social and cultural rights. As far back as 1993, the positions taken by a number of governments at the World Conference on Human Rights signaled a strong and explicit challenge to the universality, inpisibility and inalienability of human rights. At that time, the most prominent basis cited for these challenges was cultural, historical and regional relativity of human rights. Perhaps ironically, those critiques asserted that human rights notions apply differently and to different degrees in different cultural and regional contexts; they are not fully ‘global’.

In recent times, arguments are again being forcefully put forth that human rights are not inpisible, rather that civil and political rights should be differentiated from economic, social and cultural rights. This discourse asserts that the latter, in contrast to the former, can only be considered as ideals because they are both too costly and impractical to implement throughout the world. Furthermore, measures to extend and assure such rights require costly and extensive systems, such as welfare, food subsidies, extensive health, education and social service systems, jobs programs, effective judicial systems, etc. Due to society-wide and large-scale needs, these systems generally require large tax revenues and management by the State. However, taxation today is often stridently characterized as an impediment to private investment, development and economic growth, both in industrialized and developing countries.

A result of this trend to relativize human rights appears to be a growing reluctance by a number of States to elaborate legislation which extends or underwrites human rights, especially economic or social rights. This appears to be all the more so the case for adoption of extensive and detailed standards covering a range of political, civil, economic and social rights such as those set out in the 1990 Convention on migrants rights.

5. ASPECTS AND CHARACTER OF ATTENTION

5.1 Main International Initiatives

Global Campaign for Migrants Rights

Recognizing that progress on human rights will only be achieved by broad cooperation among different sectors and different regions, an alliance of major intergovernmental and international non-governmental organizations came together in 1998 and launched the Global Campaign for entry into force of the 1990 International Convention on migrants rights. [27]

The Campaign Steering Committee now includes 16 leading international bodies in human rights, labour, migration and church humanitarian fields, such as the International Labour Organization, the Office of the UN High Commissioner for Human Rights, Human Rights Watch, the Migrants Forum of Asia, the International Commission of Jurists and the International Catholic Migration Commission.

The campaign effort is premised on the need to inform, advocate and convince governments that ratification of the Convention is necessary. This is achieved only by building awareness about the Convention with government officials, diplomats, politicians, NGOs and the public‑at‑large, nationally and internationally. Initial campaign priorities recognize that sending states have more immediate interest in ratification, just as it was not states that mistreated prisoners that brought the Convention Against Torture into force.

The campaign has already contributed to putting the migrants’ rights Convention back on the agenda of a number of inter-governmental bodies. Since this campaign got underway in 1998, the number of ratifications and accessions has doubled, to sixteen, and the number of additional signatories more than tripled to ten, more than in the previous eight years combined. As noted earlier, four more countries have recently announced that they are in the process of ratifying.

UN Special Rapporteur on Human Rights of Migrants

The symbolism alone of naming a UN Special Rapporteur on Human Rights of Migrants in 1999 was critical: mandating this special rapporteur, for a period of three years, acknowledges that violations of migrants human rights are as serious and as mainline human rights concerns as torture, violence against women, racism and internally displaced persons, areas where other Special Rapporteurs have been focusing attention for some time.

The mandate and activities to date of the special rapporteur, Gabriela Rodriguez of Costa Rica, are described in her own article in this issue. Her mandate is an extensive one, taking into account functions of receiving information from all relevant sources, including migrants themselves, formulating recommendations to prevent and remedy violations of migrants’ rights, promoting effective application of relevant international instruments, recommending actions and measures applicable at the national, regional and international levels, and taking into account a gender perspective. The challenges she faces in fulfilling this mandate are all the more daunting in the face of the minimal resources she has been allocated to date.

International Migrant's Day

On December 4 of last year, the UN General Assembly officially proclaimed December 18 as International Migrant's Day! The initiative for this designation emerged some three years ago among Filipino and Asian migrant organizations, including the Asia-Pacific International Migration network (APIM). The December18 network began a campaign for official UN designation in late 1999 with support from Migrants Rights International and the Steering Committee for the Global Campaign on the migrants’ rights convention. The Mexican delegation in Geneva included the proposal in a resolution adopted by the UN Human Rights Commission in April 2000; it then made its way to adoption by the General Assembly over the course of the year. The resolution invites UN member states, intergovernmental and non-governmental organizations to observe this day by disseminating information on human rights and fundamental freedoms of migrants, sharing experiences, and undertaking action to ensure the protection of migrants. It is expected that IMD will allow for acknowledgement and publicity of the contributions migrants make to the economies, cultures and well being of both host and home countries world-wide. Local events were held in countries around the world on the first official IMD; officials of various governments and UN agencies issued statements, giving the initiative an initial impulse and visibility.

World Conference Against Racism and Discrimination

The 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance provides a unique opportunity to establish an international consensus and strategic program of action to counter the discrimination, hostility and violence directed at the 150 million migrants, refugees and other non-nationals living in countries not their own world-wide. Experience demonstrates that only a common international approach based on human rights law, humanitarian principles and universal respect for persity can assure democracy and social peace in increasingly perse societies. The arena of combating xenophobia and building respect for non-nationals is an especially crucial agenda for this World Conference; attention to this aspect is currently begin given increasing importance in the preparatory process. The UN Special Rapporteur on Human Rights of Migrants, the international NGO Working Group on Migration and Xenophobia, and the ILO are among international actors developing specific input on migration concerns for the Conference.

ILO Project on Combatting Discrimination Against Migrant and Ethnic Minority Workers

Activity of the International Labour Office (ILO) on migration includes provision of assistance and technical cooperation to governments in elaboration of legislation, policy and administration, promotion and monitoring of its Convention standards on migrant workers, and programs to extend protection of rights and dignity to especially vulnerable groups of migrants, such as domestic workers and victims of trafficking. In particular, the ILO has conducted since 1991 a project to document and identify and promote remedies to discrimination in employment against migrant and ethnic minority workers. Initial activity concentrated on countries in North America and Western Europe. This effort is being expanded to address discrimination in other regions, and to develop an extensive compendium of “good practices” by governments, employers, worker organizations and others, to encourage wider elaboration and implementation of practical anti-discrimination activities and measures.

IOM

While not actively advocating migrants’ human rights as such, the International Organization for Migration (IOM) contributes through its programmes, policy development, and training and capacity building for governments. IOM legal staff and field officers make available to governments information on applicable international norms, policies and measures which contribute to protecting basic rights and dignity of migrants. IOM has integrated concerns for protection of migrants in efforts to combat trafficking and in conducting information campaigns directed at potential migrants to raise awareness of risks. It also administers programmes providing assistance to migrant victims of trafficking and human rights abuse.

Civil Society

Much of the concrete attention given to migrants, including towards protection of their rights and dignity in practice, has been and is given by the day-to-day work of local, national and regional non-governmental organizations. The one international survey of NGO activity in migration to date was conducted under the auspices of the UN Commission on Population and Development in 1997; this survey sought to identify the roles and activities of NGOs in implementing the recommendations on international migration adopted as Chapter X of the Program of Action of the International Conference on Population and Development held in Cairo in 1994. [28] More than 100 NGOs reflecting activity in all regions of the world responded to an extensive questionnaire. The results demonstrated that there are NGOs in most countries of the world which provide direct services to migrants, some complementing their service activities with public education activities and policy advocacy with local and national government. Among the conclusions of the study,

NGOs working in the filed of international migration…provide a place for information, dialogue and cooperation between migrants (documented, undocumented and refugees), citizens, employers and government agencies in countries of origin and destination.

The survey demonstrated that NGOs were involved in, among other activities: information services and orientation seminars to migrants in countries of origin; assistance in return and reintegration; in destination countries, assistance in housing, employment, healthcare, education, legal services, skills retraining, recognition of qualifications, etc; social, vocational and psychological counseling; addressing specific problems related to trafficking and sexual exploitation of migrants; facilitating dialogue, mediation and good relations between migrants and host country nationals; challenging racism and xenophobia; research and documentation on root causes of migration; training and public education activities, promotion of international standards and improved national legislation and policy; and cooperation with international agencies.

A few snapshots of emerging regional NGO efforts particularly addressing migrants rights:

--Asia is by far the most advanced, with a regional NGO migrant center, several regional

NGO organizations addressing migration and migrants rights, plus a well established, functioning regional network of migrant organization setting its own agenda. The issues of migration are consistently central to the agendas of most NGO conferences in Asia. The Scalabrini Migration Center in the Philippines has produced a directory of migrant concerned NGOs across the region, and the Asia Migrant Center together with the Migrant Forum in Asia produce a comprehensive Asia Migrant Yearbook with extensive attention to migrants rights issues as well as data on general migration conditions and NGO activity throughout the region.

--Europe has extensive networks addressing racism and xenophobia, such as "United Against Racism and Fascism" and sectoral activities related to migration (churches, some migrant networks) as well as a regional migrant organization (European Union Migrants Forum) funded by the EU to serve as networking and lobby platform, mainly focused on EU issues. Today, there are literally hundreds of local migrant associations in countries across all of Europe. “United” produces a regularly updated directory of concerned NGOs.

--In Africa, the Southern Africa Migration Project (SAMP) has developed research-based networking and coordination among partners in a number of SADC (Southern Africa Development Community) countries. Church-related service organizations are active in many countries in the region.

--ARMIF, the Regional NGO Association on Forced Migration served as an active structure of national coalitions in Central America and Mexico during the 1990s; it catalyzed NGO engagement with the regional inter-governmental Puebla Process. A Civil Society Forum on Migration in Central and North America has now emerged; one is being formed for South America.

Globally, there are only two organizations specifically focused on promotion of migrants human rights: Migrants Rights International, with only two modestly-paid staff, and the December 18 “on-line network” with a portal website (www.december18.net) run by volunteers.

Six international non-governmental organizations have given specific attention, in some cases since many years, to promoting migrants human rights issues among their constituencies. These are the International Confederation of Free Trade Unions, the International Catholic Migration Commission, the International Movement Against Discrimination and Racism, Public Services International, the Women’s International League for Peace and Freedom, and the World Council of Churches.

In the last three years, several major international human rights organizations have begun to expand previous concern with refugees and asylum seekers to incorporate activity addressing migrants’ human rights. Human Rights Watch conducted research and published a study on treatment of refugees and migrants in South Africa in 1997 [29] , and is currently conducting a major study of migrants human rights in four Western European countries. Amnesty International and Amnesty USA have produced reports respectively documenting executions of migrants in the Middle East and abusive treatment of migrants in immigration detention.

Training Efforts

The integration of a human rights dimension into several emerging international governmental training initiatives is a recent and positive development. Perhaps exemplary is the development of the UN joint inter-agency International Migration Policy Programme (IMP) cosponsored by the UN Institute for Training and Research (UNITAR), the United Nations Population Fund (UNFPA) and the International Organization for Migration (IOM) and the International Labour Office (ILO), providing training, capacity building and networking for senior government migration managers in various regions of the world. Since its inception, the IMP programme has included attention to human rights of migrants and refugee protection as components in its programme to provide a comprehensive understanding of migration for government policy-makers. Presentations and discussions on the applicability and implementation of human rights instruments and measures have featured in all of its regional migration policy conferences held to date in the Asia-Pacific region, for Central Asia, the Caucuses and Neighboring States, for Eastern and Central Europe and in Southern Africa. [30]

IOM has increasingly integrated information on applicable human rights instruments and mechanisms in its numerous, regionally based training seminars for government officials. It has also initiated a project of providing training to its own staff on migrants rights issues.

The Convention on the Rights of Migrants is one of the seven treaties covered in a series of subregional and national level workshops organized in 2000-2001 by a joint programme between the Office of the United Nations High Commissioner for Human Rights and the United Nations Development Programme. Entitled “Human Rights Strengthening”, the workshops raise understanding of main treaty provisions, examine implications of ratification and inform governments of assistance available from the UN if they pursue ratification.

The Canadian Human Rights Foundation has organized several training seminars in Asia both for NGOs and government officials specifically on application of migrants’ human rights. It recently co-produced with the Asia Migrant Centre, Ateneo Human Rights Centre and Asia Pacific Forum on Law and Development, a comprehensive UN Road Map to serve as a training manual and “guide for Asian NGOs to the international human rights system and other mechanisms.” [31]

Academia and Research

In recent years some academic research has finally begun to delve into questions of migrants human rights. While this article does not pretend to represent a survey of the field, several salient initiatives are nonetheless noted. Published material by Richard Cholewinski, Shirley Hune and Jan Niessen has been referred to above. Helene Moussa of Canada has written extensively on migrants rights and related topics of racism and xenophobia. Dissertations have been written by Syed Refaat Ahmed at Tufts University and by Amy Ilene Gurowitz at Cornell. Richard Perruchaud, Shyla Vohra and Heikki Mattila at IOM have produced excellent articles regarding application of human rights standards to migrants (see other article in this issue). The Asia-Pacific International Migration project and the Scalabrini Migration Centre in the Philippines have compiled considerable data. The Southern Africa Migration Project (SAMP) has sought to bring together leading academics in the region; several of their studies and reports focus on questions of migrants’ rights and xenophobia; SAMP is also involved in organizing training workshops in the region [32] .

7. ACHIEVING MIGRANTS RIGHTS

As noted earlier, this review is based on understandings that the rule of law and respect for universal notions of human rights are essential foundation for democracy and social peace. Law and human rights are proactive notions, requiring elaboration, implementation and monitoring to be effective in a changing and perse world.

The author’s experience and that of many of the institutions cited above, suggest a number of specific lines of activity necessary for the further elaboration and implementation of migrants human rights in particular. The overall approach starts with inclusion of protections for human rights need in the laws governing countries, and in the discourse and practice of all State and non-State actors.

More specific recommendations can be grouped by those suggested for governments, those directed at social partner and civil society actors, and a few points regarding international organizations. Most of these suggestions have already been articulated in policies and recommendations of international conferences and by international organizations. Indeed, a comprehensive, viable and still very relevant global program of action on migration was articulated and agreed to by nearly all governments of the world at the 1994 International Conference on Population and Development in Cairo, in Chapter X on International Migration of the Program of Action adopted [33]

A comprehensive national policy and practice is required of all governments to manage migration, combat discrimination and ensure dignified treatment of both nationals and non-nationals. Only a few main lines can be reiterated here:

1) Adopt and implement main applicable international standards as a necessary framework for effective policy and administration. Key instruments include:

The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
The UN Convention on the Elimination of Racial Discrimination.
ILO Convention 111 on Discrimination and ILO Conventions 97 and 143 related to migrant workers.

2) Elaborate comprehensive national anti-discrimination legislation, including provisions to prohibit direct and indirect discrimination on grounds of actual or presumed nationality or national origin (as well as other grounds), and to assure effective judicial, administrative and other remedies for non-citizens.

3) Establish or improve an inter-agency consultative mechanism to facilitate coordination and coherent activity among all concerned government ministries and agencies, and incorporating expertise of international organizations, social partners and concerned NGOs.

4) Where non-existent, establish a national independent human rights/anti-discrimination monitoring body with independent capacity to monitor implementation of laws and seek remedies to cases of violations.

5) Elaborate a national Strategy and Plan of Action addressing migration, discrimination and integration, with specific designation of responsibilities for implementation of its component aspects as applicable to government entities, employers, trade unions and other organizations.

6) Address through such a plan of action or other means, promoting respect for persity and multiculturalism, combating negative stereotypes and disinformation regarding foreigners, promoting anti-discrimination measures at all levels, discouraging discriminatory treatment by authorities, responding to needs and issues related to employment, labor, health-care, education, housing, police protection, social protection and social security, social benefits, gender equality, access to supply of goods and services and to public places, as well as family reunion, residency and citizenship, etc.

Recommendations directed at social partners and civil society actors recognize a complementarity and possible cooperation with government measures in a number of areas.

1) Advocacy for national adherence to basic international human rights standards, for elaboration of anti-discrimination legislation and for appropriate practices remains an appropriate responsibility for civil society organizations in most countries. Given wide ratification of UN and ILO anti-discrimination instruments, emphasis is needed on ratification of the 1990 International Convention on migrants’ rights. Establishment of national committees or coalitions --where they don’t already exist-- are essential mechanisms to take up promoting the convention as well as efforts to “roll back xenophobia.”

2) Business, trade union, religious, civil society and community leaders and organizations, politicians and political parties, parliamentarians, as well as by sports, arts and cultural personalities, need to speak out publicly, take leadership and promote initiatives to: promote respect for persity, condemn xenophobic attitudes and actions, discourage discrimination and support equality of opportunity.

3) Elaborate and implement national employer, trade union, NGO strategies and programs to explicitly sanction xenophobic behavior, monitor conditions, and support and encourage government and non-government measures and remedies at all levels, in dialogue and cooperation with local and national government to the extent possible.

4) Provision of direct services, attention to and support for migrants by employers, trade unions, and NGOs is an essential component of solidarity.

5) Develop institutions and personnel focused on and capable of professionally carrying out these activities, and promote attention by the broader civil society, particularly through public institutions --national human rights bodies, legal and judicial fora, parliamentary bodies and members-- as well as church-based institutions and NGOs.

6) Support, link with and engage in the several international initiatives mentioned earlier, including the Global Campaign, the Special Rapporteur, the World Conference Against Racism and Xenophobia, and celebration of International Migrants Day.

International institutions can do more to support, facilitate and resource this process.

1) Dialogue and coordination among international agencies on migration, including specifically related to protection of migrants, is essential, but minimal at present. Creation of fora for regular consultation is imperative; initiatives such as the International Migration Policy Program offer possibilities.

2) A standards-based approach needs to be more adequately incorporated in policies and activities of international agencies, particularly in the assistance and cooperation they provide to governments.

3) Consultation and cooperation between international institutions and NGOs is especially imperative in this arena, where some NGOs have accumulated far more experience and expertise.

Advancing the protection of migrants’ human rights requires common approaches, strategies, coordination, and the ability to mobilize human resources are needed. Officials and institutions of governments, international organizations, civil society organizations and migrant groups all have roles to play and contributions to make. Various initiatives described above demonstrate that dialogue and cooperation is possible and viable among governmental, international and civil society actors. All this and more will be required to generate alternative solutions, influence the course of events, contribute to the elaboration of national policies, and so on.

* * * * *

Patrick A. Taran

February 2001

Patrick Taran was recently appointed Senior Migration Specialist at the International Labour Office (ILO) in Geneva. He previously served as Director of Migrants Rights International and as Program Officer for the International Migration Policy Program.

[1] COPYRIGHTED PRE-PUBLICATION TEXT. NOT FOR REPRODUCTION

[2] International Labour Office, Migrant Workers, International Labour Conference 87^th Session, Geneva, 1999, Report III: 4.

[3] See Taran, “Seven Causes of Migration in the Age of Globalization”, International Migration Policy Course, Bangkok, November1999, available at: www.december18.net

[4] International Organization for Migration, Background Paper, International Migration Seminar, Geneva, 1990

[5] see for example, Linard, Andre: Migration and Globalisation - the New Slaves. International Confederation of Free Trade Unions. Brussels. July 1998

[6] See for example, “U.S. Farmers Are Forced to Rely on Illegal Labor”, International Herald Tribune, October 4, 2000.

[7] International Herald Tribune, March, 2000.

[8] Stalker, Peter: Workers Without Frontiers. International Labour Organization. Geneva 2000. p. xi-x

[9] Noted in the Report of the (UN) Secretary General on the Status of the UN Convention on migrants rights for the 55^th Session of the UN General Assembly. Doc. A/55/205. July 2000

[10] Texts and status of ratifications of these conventions are available on the website of the Office of the UN High Commissioner for Human Rights, at: www.unhchr.ch

[11] As of February 2001, the 16 States Party to the Conve