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THE GLOBAL CHALLENGE OF THE PROTECTION OF THE RIGHTS OF MIGRANT WORKERS
(International Institutions)
Tue, Aug 14, 2007

U N I T E D   N A T I O N S   - OHCHR REGIONAL OFFICE FOR SOUTH-EAST ASIA

Task Force on ASEAN Migrant Workers
THAILAND - MEKONG CONSULTATION WORKSHOP: PROTECTING MIGRANT WORKERS RIGHTS IN ASEAN
31 JULY - 1 AUGUST 2007, BANGKOK, THAILAND

THE GLOBAL CHALLENGE OF THE PROTECTION OF THE RIGHTS OF MIGRANT WORKERS

Distinguished guests,
Ladies and gentlemen,

On behalf of the UN High Commissioner for Human Rights, Ms. Louise Arbour, I would like to express our gratitude for the invitation to this regional workshop, which we think is a step forward towards increasing international cooperation on human rights issues in general and the rights of migrant workers in particular.

In recent years, patterns of global migration have shifted significantly. Increasing economic globalization and inequality-along with  revolutionary advances in transportation and technology-have directly contributed to a growing number of people who have voluntarily crossed borders in the last several decades. While migration presents new opportunities for migrant workers, it also puts their human rights and security at risk. Since the trend of increasing migration is not likely to change in the near future, it is important for States to confront the challenges and dangers this phenomenon presents. While States are entitled to control their borders and regulate migration, they must do so in full compliance with their human rights obligations.

Both documented and undocumented migrant workers and members of their families enjoy the rights set out in part III of the Convention, which are as follows:

  • The right to life of migrant workers and members of their families protected by law (Article 9);
  • The right not to be subjected to torture, or to cruel, inhuman or degrading treatment or punishment (Article 10);
  • The right not to be held in slavery or servitude, prohibition of forced or compulsory labour; including those held in prison (Article 11);
  • The right to freedom of thought, conscience and religion (Article 12);
  • The right to freedom of expression (Article 13);
  • The right not to be subjected to arbitrary or unlawful interference with his/her privacy, family, home, correspondence, or other communications, or to unlawful attacks on his/her honour or reputation (Article 14);
  • The right not to be arbitrarily deprived of property (Article 15);
  • The right to liberty and security of person (e.g. arbitrary arrest or detention, State protection against violence, entitlement to trial within a reasonable time), (Article 16);
  • Paragraph 2 of Article 16 also obliges the State to protect migrant workers and members of their families against violence, physical injury, threats and intimidation;
  • The right to be treated with respect and humanity when detained, including the separation of juvenile offenders from adults when in prison (Article 17);
  • The right to equality with nationals of the State concerned before courts and tribunals; the right to a fair and public hearing by a  competent, independent and impartial tribunal established by law; the right to be presumed innocent until proven guilty according to law (Article 18);
  • The right not to be imprisoned merely on the ground of failure to fulfil a contractual obligation (Article 20);
  • The right to be protected by law against a public official confiscating, destroying or attempting to destroy identity documents, documents authorising entry to or stay, residence or establishment in the national territory or work permits (Article 21);
  • The right not to be subject to measures of collective expulsion, and for decisions to be communicated to them in a language they understand (Article 22);
  • The right to have access to protection and assistance of diplomatic authorities of their State of origin (Article 23);
  • The right to recognition everywhere as a person before the law (Article 24);
  • The right to enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and other conditions of work (overtime, hours of work etc.), (Article 25);
  • The right to join freely any trade union or professional associations (Article 26);
  • The right to enjoy social security (Article 27);
  • The right to receive any medical care that is urgently required (Article 28);
  • The right of each child of a migrant worker to a name, to registration of birth and to a nationality (Article 29);
  • The right of each child of a migrant worker to have access to education on the basis of equality of treatment with nationals of the State concerned (Article 30);
  • The right to respect of the cultural identity of migrant workers and members of their families (Article 31);
  • The right, upon the termination of their stay in the State of employment, to transfer their earnings and savings, their personal effects  and belongings (Article 32);
  • The right to obtain from the State of employment authorisation to be temporarily absent without effect upon their authorization to stay or to work (Article 38);
  • The right to family reunification (Article 44);
  • The right to be protected from losing the residence permit when losing the job (Article 51).

The above-mentioned international standards that apply for both documented and undocumented migrant workers and their family member are the standards that States worldwide should look to attain. It is a particular challenge for States to ensure that they respect and protect  migrant workers' enjoyment of these rights.

I would also like to mention some rights that are of particular relevance to documented migrant workers. Article 38 allows temporary  absences for migrant workers from the country of employment, for instance for family visits to their country of origin. Article 44 foresees family reunification, and Article 51 includes the protection of migrant workers from automatically losing their residence permits if they lose their jobs.  

Unfortunately, throughout the migration process-and especially in Asia, where domestic workers are not classified as workers and therefore not entitled to general labour protections-women are particularly vulnerable to discrimination and abuse.

Many national laws include discriminatory provisions that affect the protection of migrant women. Such provisions include the denial or obstruction of permission for female migrants to bring their husbands and children to join them; the requirement of pregnancy tests for female migrants; the refusal of entry into a country without the permission of their guardians; and the imposition of age limits on emigrating women. Other provisions which seem neutral on their surface have, in reality, a disproportionate impact on women. In some cases, for example, prospective migrants are requested by countries of destination to take exams in order to be granted a visa, with women placed at a disadvantage due to their lower level of education. This also has implications for women's access to information regarding the costs and benefits of migration, terms and conditions of employment, legal entitlements and procedures related to obtaining a legal migration status. Exploitative fees charged byemployment agencies sometimes perpetuate a vicious cycle in which women, who generally have fewer assets then men, are forced to borrow  money from family and friends, which in turn traps them in debt and makes them afraid to return home.

Labour laws not regulating work in the informal sector (e.g. domestic work) particularly affect women, who are the majority of migrants in this category. From its review of country situations, the CERD Committee has noted that serious problems commonly faced by migrant domestic workers include debt bondage, passport retention, illegal confinement, rape and physical assault. Reports by non governmental organisations confirm that many women work without contracts, or - if contracts exist - that they are working under unfavourable terms, are paid low salaries, have no insurance, no control over working hours, and allow employers to forbid domestic workers from leaving the house, in effect confining them for the period of the employment to the house or apartment building in which they work.

Violations of the human rights of women domestic workers occur in "private" and this makes it very difficult to report them or to speak of them with anyone, since the boss or employer has absolute power. This is often made worse when the employer keeps the domestic worker's documents as a means of coercion and pressure. Some women leave abusive employment, but many do not. The reasons they give illustrate the helpless situation of many domestic migrant workers: a lack of alternative employment; ignorance of rights; financial obligations to their family and the fact of their dependence on the worker's income; lack of financial resources; fear of deportation; restrictions on movement; lack of identity papers; fear of arrest; fear of violence by agents/ traffickers/employers; debt bondage; a fear of retaliation against the family if the debts are not paid; and a general fear of reprisals.

Generally, women tend to predominate in jobs with inferior conditions, which could result in:

  • Inferior legal protections; for example, prohibitions against forming or joining unions or associations and engaging in labour actions;
  • lack of legal protection against sexual and physical abuse;
  • Increased risk of sexual abuse and violence (along with domestic work, certain forms of entertainment work, certain kinds of factories);
  • Inferior access to health services, due to the unavailability of insurance or national health care schemes;
  • Inferior security arrangements and provisions of safe travel between worksite and home;
  • Inferior privacy, hygiene, and safety conditions, and;
  • The increased risk of passports, identification papers, and employment contracts being withheld by employers or agents.

International migration also affects gender roles and opportunities for women in countries of destination. In general, labour participation from women migrants is lower than that of migrant men or native women. Female migrants have, in general, lower earnings than their male counterparts. When the entire family migrates, there can be gender tensions. Men might be threatened by gender roles in the countries of destination and prevent women's integration, thereby perpetuating situations of gender discrimination. Legally, many migrant women are vulnerable if their residence is dependent upon their relationship with a citizen or a "primary migrant". In these cases, women may be reluctant to denounce situations of domestic violence for fear of deportation.

Often there is a lack of control over income and remittances. Some employers send women's wages directly to husbands or fathers in countries of origin. Even women who receive their salaries often send them to their husbands. There is no guarantee that, upon return to their country of origin, women will be able to enjoy the use of their savings, or that they will not be deprived of their savings/assets in the instance of divorce, desertion or spousal death. Reintegration is also often difficult for women because they often return to unstable families, due to the fact that in their absence the family failed to take over domestic duties. Some women suffer forms of stigmatization from their families upon return if they have suffered exploitation or abuse abroad and often no redress is available. There is often also no protection against reprisal from exploitative recruiting agents.

Within the framework of the High Commissioner's Strategic Management Plan for 2006-2007, the OHCHR Regional Office has provided advisory services in the field of human rights to strengthen national capacity for the creation of structures for the promotion and protection of the rights of migrants, migrant workers and their families. In addition, the OHCHR Regional Office for South-East Asia will offer its good offices to advise Member States of ASEAN in the development of a regional strategy with regards to the issues of migrants and migrant workers.

As the UN Secretary-General recently remarked, "the freer movement of people oils the global economy," but we need to "make the migration equation work for everyone."  Protecting migrants' rights is an integral part of the solution.

Thank you for your attention.

Dr. Homayoun Alizadeh
Bangkok, 31 July 2007


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