ISSN 1991-3087

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ISSN 1991-3087

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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, Geneva, ILO, 2002.

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.

3. http://www.unhchr.ch.

 

Поступила в редакцию 22 сентября 2006 г.

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