Ensuring Migrant Workers’ Rights: Regional Frameworks Could Hold the Key
In the wake of the execution of Sri Lankan housemaid Rizana Nafeek on 9th February 2013, accused of smothering an infant in her care in the Kingdom of Saudi Arabia, the human rights of migrant workers have come to the forefront of the policy discussion on migration. This article discusses what the next step needs to be in developing a comprehensive governing framework for migrant labour, and argues that collective action is the strongest tool in the arsenal of sending countries in protecting migrant workers.
International Human Rights Instruments – What is Available?
As migration, unlike the movement of commodities, is the movement of people, it requires that special attention be made to the social dimension, which includes human rights, dignity, and the social protection of migrants. If both countries of origin and destination want to benefit from migration, it is essential that they address the human rights aspect of migrants.
Currently, a range of human rights instruments exists at the international level promoting the human rights of female migrants, migrant children, migrant workers, refugees, and smuggled migrants. Among the treaties which concern migrants and human rights are: 1) the International Covenant on Civil and Political Rights, 2) The International Covenant on Economic, Social, and Cultural Rights, 3) the International Convention on the Elimination of All Forms of Racial Discrimination, 4) the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 5) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 6) the Convention on the Elimination of All Forms of Discrimination against Women, 7) the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment, and 8) the Convention on the Reduction of Statelessness.
Migrant workers are entitled to enjoy the labour rights provided for in all international labour conventions, such as the four sets of rights set out in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. In addition, there are some other international conventions which provide specific rights for migrants workers. For instance, the ILO has adopted two international conventions: the 1990 International Convention on the Rights of All Migrant Workers and Members of their Families (ICRMW), and the ILO Multilateral Framework on Labour Migration. ICRMW is a fundamental element in protecting the human rights of migrants. It applies to all aspects of the life of migrants and it regulates the full spectrum of workers’ rights without being restricted to employment.
Migrant Rights – Challenges Remain
Despite these international instruments to protect migrant workers’ human rights, there is a considerable incidence of reports of rights being violated. A significant number of migrant workers face undue hardships and abuse in the form of low wages, poor working conditions, denial of freedom of association, denial of workers’ rights, discrimination, xenophobia, and social exclusion. For example, in 2011, out of the nearly 10,000 complaints received by the Sri Lanka Bureau of Foreign Employment (SLBFE), around 20% were about the non-payment of agreed wages and 16% were about the breach of employment contract. Physical and sexual harassments were the next highest complaint category in 2011. Around 302 deaths, including natural deaths, were recorded that year, with around 2% of these being classified as homicides.
There are practical issues related to the ratification, implementation, and enforcement of existing human rights. Many governments do not have the required capacity to implement these international human rights instruments. Moreover, human rights instruments available for migrant workers are not popular among governments, policy makers, and often among migrant workers themselves. On the other hand, even in the countries where these instruments are available, the administrative procedures are complicated.
How Can these Issues be Overcome?
There are several ways to enhance the protection of migrant workers. Countries, which still have not ratified these human rights treaties, should be encouraged to do so. Ratification itself won’t be sufficient to minimize the human rights violation, therefore it should go hand in hand with a regular monitoring mechanism. The problem with most countries is the lack of capacity to implement these treaties and to monitor them. To develop this, global partnerships are important. Donor agencies in developed countries can support other countries to implement, monitor, and create awareness. In addition, a massive awareness campaign should be launched at the onset, as awareness about human rights is very poor, as mentioned earlier. This awareness should be extended not only to the governments in sending and receiving countries, but also to the migrant workers themselves. All these actions can be implemented through national level policies and regional cooperation.
At the national level, governments of sending countries need to come up with bilateral agreements and Memorandums of Understanding (MoUs) with receiving countries. These agreements should not be limited to the number of employment contracts and wages, but should also focus on the human rights aspect of migrant workers. It will be beneficial if governments of sending countries can come up with social security agreements with the governments of destination countries.
At a recent public dialogue, the Director of the International Movements against All Forms of Discrimination and Racism (IMADR) emphasized the need for a collective South Asian approach to this rather than the current trend of competition between the countries(1). This highlights the need for regional cooperation in order to have better bargaining power to avoid situations like the Rizana Nafeek’s execution.
Regional Collective Action is Key
Coordination between country of origin, transit, and destination, as well as non-governmental organizations (NGOs), civil society organizations, and migrant workers, is essential to ensure that international human rights of migrants are honoured. Existing Regional Consultative Processes (RCPs) can be employed to protect the human rights of migrant workers in two ways. Firstly, they provide an important platform for multi-stakeholder engagement that can influence national level policies. RCPs allow different groups such as government representatives, international organizations, and NGOs to come together for informal and non-binding dialogue and information exchange on migration-related issues. RCPs are a platform for regular meetings between these stakeholders who wouldn’t normally interact, or would interact only on an ad hoc basis. Thus, RCPs can facilitate better cooperation, and co-ordination among stakeholders. The participation of such a wide range of stakeholders is essential towards the development of a comprehensive approach to protect the rights of migrant workers.
Secondly, RCPs can influence the setting and steering of national agendas. For example, participating countries can influence the focus of migration issues already incorporated in their agendas. Many countries have reviewed, created and/or amended national legislations in this way. For example, the governments of Panama and Fiji, both undertook extensive reviews of their domestic migration laws and subsequently reformed certain parts of these laws as a result of their RCP participation(2) .
In the South Asian region there are RCPs that exist like the ‘Colombo Process’ and the ‘Abu Dhabi Dialogue’. These RCPs have touched on the human rights aspect of migrant workers. The ‘Colombo Process’, for instance, aims to consult on issues faced by overseas workers and propose practical solutions for the well-being of overseas workers, particularly the most vulnerable, such as women and unskilled workers. Partnership 3 of the ‘Abu-Dhabi Dialogue’ is in place to prevent illegal recruitment practices and to promote welfare and protection measures for contractual workers; support their well-being; and prevent their exploitation at origin and destination.
The existing efforts should reach the benchmark set by the efforts of the ASEAN region. In 2007, the ASEAN region introduced the ‘ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers’. It is a unique initiative in the ASEAN region which specifically addresses the protection and the rights of migrant workers from a regional perspective and encompasses the responsibilities of origin, transit, and destination countries, to ensure an orderly migration process. A similar effort has been taken by a group of think-tanks in South Asia to form South Asia Migration Commission (SAMC) in 2009. It has conducted three meetings in Colombo but it is yet to be recognized by the SAARC official process.
A country like Sri Lanka which receives a significant amount of remittances – nearly 10% of its GDP – cannot afford to prohibit migration. However, the fact remains that another tragedy, such as that of Rizana Nafeek, must be avoided at all costs. While Rizana was Sri Lankan, she could just as easily been one of the thousands of housemaids from India, Bangladesh, or any other South Asian country. As such, collective action remains one of the strongest tools that sending countries such as Sri Lanka, India, or Bangladesh can have in their arsenal to protect their migrant workers.
(1) Fedreich Ebert Stiftung Open Forum on ‘Welcome Money: Unwelcome Issues? The Challenges of Sri Lankan Female Migrant Workers,’ 21st February 2013, Taj Samudra Hotel, Colombo.
(2)Michele Klein Solomon (2005). ‘International Migration Management through Inter-State Consultation Mechanisms Focus on Regional Consultative Processes on Migration’, International Organization for Migration
 Freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour, and the elimination of discrimination in respect of employment and occupation