The rights of migrant workers in the world.
Дроздович Наталья Станиславовна,
аспирантка 3 года
обучения частного учреждения образования
«БИП – институт правоведения»,
студентка Академии
управления при Президенте Республики Беларусь,
специальность государственное
управление и право,
специалист 1 категории
Национального центра правовой информации Республики Беларусь.
All persons, regardless of their nationality, race, legal or other status, are entitled to fundamental human rights and basic labor protections, including migrant workers and their families. Migrants are also entitled to certain human rights and protections specifically linked to their vulnerable status.
The term "migrant worker" refers to a
person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.
The
human rights of migrant workers and their families include the following
universal, indivisible, interconnected and interdependent human rights:
The human right to work and receive wages that
contribute to an adequate standard of living.
The
human right to freedom from discrimination based on race, national or ethnic
origin, sex, religion or any other status, in all aspects of work, including in
hiring, conditions of work, and promotion, and in access to housing, health
care and basic services.
The
human right to equality before the law and equal protection of the law,
particularly in regard to human rights and labor
legislation, regardless of a migrant's legal status.
The human right to equal pay for equal work.
The
human right to freedom from forced labor.
The human right to protection against arbitrary
expulsion from the State of employment.
The human right to return home if the migrant
wishes.
The human right to a standard of living
adequate for the health and well-being of the migrant worker and his or her
family.
The human right to safe working conditions and
a clean and safe working environment.
The human right to reasonable limitation of
working hours, rest and leisure.
The human right to freedom of association and
to join a trade union.
The human right to freedom from sexual
harassment in the workplace.
The human right to protection during pregnancy
from work proven to be harmful.
The human right to protection for the child
from economic exploitation and from any work that may be hazardous to his or
her well-being and development.
The human right of children of migrant workers
to education.
The human right of migrants and their families to reunification.
The
International Labour Organization (ILO) has been in the forefront of efforts to
secure and maintain a fair deal for migrant workers and their families since
the 1920s.
ILO's contribution to achieving greater justice for
migrant workers takes two main forms. First, certain ILO conventions and
recommendations set the pattern for national laws, as well as judicial and
administrative procedures, relating to migration for employment. Secondly,
through its technical cooperation projects, ILO helps to secure the human rights
of migrant workers.
The
two major ILO conventions concerning migrant workers are the Migration for
Employment Convention (Revised) (No. 97) of 1949 and the Migrant Workers
(Supplementary Provisions) Convention (No. 143) of 1975.
Convention
No. 97 contains a series of provisions designed to assist migrants for
employment. For example, it calls upon ratifying States to provide relevant
information to other ILO member States and to the organization, to take steps
against misleading propaganda, and to facilitate the departure, journey and
reception of migrants.
The
Convention also requires ratifying States to put migrants lawfully within their
territory on the same footing as their own nationals in applying a wide range
of laws and regulations relating to their working life, without discrimination
on the grounds of nationality, race, religion or sex..
Convention
No. 143 deals in Part I with migration in abusive conditions, and in Part II
with equality of opportunity and treatment. States which ratify the Convention
have the option to accept the whole instrument or one or other of its two
parts.
The
Convention provides that States must respect the basic human rights of all
migrant workers. They must also prevent clandestine migration for employment
and stop manpower trafficking activities. Furthermore, States
must declare and pursue a policy to secure equality of treatment in respect of
matters such as employment and occupation, social security, and trade union and
cultural rights.
With
regard to technical cooperation, ILO has developed an interregional project to
combat discrimination against migrant workers. The project, which focuses on
industrialized migrant-receiving States, aims at tackling informal or de facto
discrimination-unequal treatment of migrant workers which, according to the statute-books,
should not occur. Preliminary research findings have made it clear that this
kind of discrimination is widespread and persistent. The objective of the
project is to assist States in fighting discrimination by informing policy
makers, employers' and workers' organizations, persons engaged in
anti-discrimination training activities and non-governmental organizations how
legislative and related redress mechanisms and training activities can be
rendered more effective, on the basis of an international comparison of the
efficacy of such measures and activities.
In
1995, in a document submitted to the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, ILO pointed out that its
activities had contributed substantially to acceptance of the concept of
equality in the treatment of migrant workers and to the elimination of
discrimination. It also referred to new activities aimed at protection of
migrant workers in Africa, America, Asia and the Pacific, and Europe through
the application of international norms within the framework of the
constitutional and national legislation of host States.
In
December 1990, the General Assembly adopted the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families.
The
main thrust of the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families (see annex) is that persons who qualify as migrant workers under its provisions
are entitled to enjoy their human rights regardless of their legal status.
The
Convention opened a new chapter in the history of efforts to establish the
rights of migrant workers and to ensure that those rights are protected and
respected. Like all other international human rights agreements, the Convention
sets standards which create a model for the laws and the judicial and
administrative procedures of individual States. Governments of States which
ratify or accede to the Convention undertake to apply its provisions by
adopting the necessary measures. They undertake to ensure that migrant workers
whose rights have been violated may seek judicial remedy.
After
outlining the types of problems which cause the greatest concern to migrant
workers and their families, this Fact Sheet describes the action taken
internationally to promote and defend their rights.
The
migrant worker is not a product of the 21-th century. Women and men have been
leaving their homelands in search of work elsewhere ever since payment in
return for labour was introduced. The difference today is that there are far
more migrant workers than in any period of human history. Millions of people
now earning their living-or looking for paid employment-came as strangers to
the States where they reside. There is no continent, no region of the world,
which does not have its contingent of migrant workers.
Discrimination
against migrant workers in the field of employment takes many forms. These
include exclusions or preferences as regards the types of jobs which are open
to migrants, and difficulty of access to vocational training. Different
standards are often applied to nationals, on the one hand, and migrants, on the
other, as regards job tenure, and contracts may deprive migrants of certain
advantages.
Article
25, paragraph 1, of the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families establishes that mmigrant workers shall 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 and terms of employment.
Paragraph 3 of the same article requires States parties to take all appropriate
measures to ensure that migrant workers are not deprived of these rights.
Cases
are cited of legal and administrative rules which force migrants to remain in
certain occupations and specific regions, as well as of inequalities in pay and
grading for identical jobs. Migrant workers are known to have been excluded
from the scope of regulations covering working conditions, and to have been
denied the right to take part in trade-union activities.
A
widespread tendency is to regard migrants as a complementary labour force, and
to assign them to the jobs which have the least attraction for nationals.
International
legal instruments establish protection for migrant workers against arbitrary
expulsion when, for example, an employment contracts ends, and also provide for
the right of appeal against expulsion orders.
Articles
22 and 56 of the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families address the issue of
expulsion and arbitrary expulsion. Paragraph 1 of article 22 expressly
prohibits measures of collective expulsion. An expulsion decision must be taken
by the competent authority in accordance with law (art.22, para.2) and only for
reasons defined in the national legislation of the State of employment (art.56,
para.1). Paragraph 4 of article 22 requires that, except where a final decision
has been pronounced by a judicial authority, "the
person concerned shall have the right to submit the reason he or she should not
be expelled and to have his or her case reviewed by the competent authority,
unless compelling reasons of national security required otherwise".
Migrant workers have the right to return home if they so wish. The view in international discussions has been that this question should be handled through cooperation between the State of origin and the receiving State. Returning migrants should benefit from guidance services and be given the opportunity to use the skills they have acquired abroad.
The Convention takes into account the relevant international labour standards, as well as the Slavery Conventions. It also refers to UNESCO's Convention against Discrimination in Education; the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Code of Conduct for Law Enforcement Officials; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the Declaration of the Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
Countries
receiving migrant workers
should provide proper
treatment and adequate social welfare services for them and their families, and
should ensure their physical safety and security. Countries should guarantee to
all migrant workers all basic human rights as included in the Universal
Declaration of Human Rights. Objectives: to ensure the social and economic
integration of documented migrants and
their equal treatment before the law; to eliminate discriminatory practices
against migrant workers, especially women, children and the
elderly; to ensure protection against racism, ethnocentrism and xenophobia; to
promote the welfare of documented migrants and members of their families. Special
efforts should be made to enhance the integration of the children of long-term migrant
workers by providing them with educational
and training opportunities equal to those of nationals. Governments,
particularly those of receiving countries, must recognize the vital importance
of family reunification and promote its integration into their national
legislation in order to ensure the protection of the unity of the families of
documented migrants.
Bibliography.
1.
M. Humblet and R. Silva, Standards for the XXI-st century
. social security,
2.
Workers, had to be engaged in an economic activity. См.: Barnard, Catherine. Free Movement of Workers // The EC
Employment Law. - John Wiley & Sons, 1995.
Поступила в редакцию 22
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