The Role and Functions of International Organizations in the Field of Migrant Workers by W. R. Böhning Director outh!"ast #sia and the $acific Multidisci%linary #d&isory Tea' ((!() *anuary (+++ Manila, $hili%%ines
Table Table of Contents I. II.
Introduction ILO activities in the eld of migration •
Objectives
•
Standard-setting activities and ILO
•
Technical T echnical cooperation and advisory services services
•
III.
Other activities
pril !""# $eeting of %&perts
I .I nt r oduc t i on
The role that international organizations can play depends on the interests of their member States. States establish and develop international organizations to achieve objectives that they cannot achieve on their own. By the same token, States will not permit international organizations to do things that constitute, in the eyes of these States, interference in their internal affairs. This is particularly true in the very sensitive field of international migration. The entry, economic activities, residence rights, etc., of foreigners are viewed, to this day, as falling under the sovereignty and reserved domain of States. In the field of international migration, no State likes to be told what it can or cannot do neither by another State nor by an international organization. !hat are the principal functions accorded to international organizations" They may be summarized under four headings# i.
studie studies s or the collect collection ion and dis dissem semina inatio tion n of of info informat rmation ion;;
ii. ii.
sett settin ing g inte intern rnat atio iona nall lly y acce accept ptab able le norms norms;;
iii.
fostering cooperation through meetings;
iv.
engaging in technical cooperation activities.
States have few hesitations in giving international organizations a mandate to collect and disseminate information, especially statistical material, and to carry out studies, notably comparative studies, that enable the analysis of contemporary trends and the drawing of lessons. Some intergovernmental organizations, the I$% among them, also enjoy the privilege of giving birth to and nurturing international minimum standards. This is due to the inability of any government, e&cept in a hegemonic system that it controls, of setting standards to be adhered to by other governments. !here there is an identified need for establishing international norms in a nonhegemonic system, a large number of States have to agree on procedures and substance for such norms to become a reality. !here levels of treatment are specified, these norms cannot be more than minimum standards. It is not enough that governments and, in the I$%'s case, employers' and workers' organizations as well agree on a level of treatment to be embodied in an international (onvention. It would constitute no more than a declaration of moral value if the rules agreed upon would not enter into force at the national level and if their application at that level could not be supervised internationally. This being a very sensitive issue, only a few international organizations have been endowed with supervisory mecha nisms. The )* only has a very weak supervisory system and practically no sanctions to call on. The I$% has a somewhat stronger system. The +uropean )nion has a very strong machinery that includes both the (ommission and an independent (ourt of ustice. -s regards the third activity, the organization of various kinds of meetings to e&change information, to bring countries together with a view to having them cooperate or agree on a course of action to be pursued, it is a very common function of international organizations. Technical cooperation in the sense of having an intergovernmental organization furnish intellectual, financial or material aid to a country reuesting it in the e&pectation that it might be helpful, is a relatively new function. But it has become the most important function of international organizations in the last several decades. I I .I L O ac t i v i t i esi nt hefi el dofi nt er nat i onal mi gr at i on Obj ec t i v es
The %rganization has set itself two interlocking aims. %ne is the /protection of the interests of workers when employed in countries other than their own/ 01reamble to the (onstitution2. The second is /to further among the nations of the world programmes which will achieve... 0b2 the employment of workers in the occupations in which they can have the satisfaction of giving the fullest measure of their skill and attainments and make the greatest contribution to
the common wellbeing3 0c2 the provision, as a means to the attainment of this end and under adeuate guarantees for all concerned, of facilities for...the transfer of labour, including migration for employment and settlement/ 04eclaration of 1hiladelphia, section III2. The objective deriving from the 1reamble to the (onstitution has been pursued in the main through standard setting, the second through technical cooperation activities, inspired by the %rganization's standards and supported by research at headuarters and in the field. The following is a brief survey of activities intended to permit interested readers to form an opinion on what the I$% does in relation to the objectives specified above. St andar ds et t i ngac t i v i t i esandI L O
There is a little need to recall the contents of the various I$% standards whose purpose is to protect migrant workers. It is more appropriate to indicate the circumstances that gave rise to their adoption and the key principles embodied in the standards. $eaving aside the period between the two world wars, relevant (onventions were adopted in 5676, 5689, 56:; and 56<9. The Migration for Employment Convention (Revised), 1! ("o. #) and the accompanying Migration for Employment Recommendation (Revised), 1! ("o. $%), which are milestones in international migration legislation, grew out of the turmoil of postwar +urope and the desire to facilitate the transfer of surplus labour from this continent to others. (ouched in the language of universally applicable norms, the (onvention puts emphasis on, inter alia, medical services, euality of treatment in respect of remuneration and membership of trade unions, the provision of free public employment services and the supervision of employers' or private agencies' recruitment, introduction and placement operations. The E&uality of Treatment ('ocial 'ecurity) Convention 1% ("o. 11$), e&tended the advance of social welfare philosophy during the 56;=s and 568=s to migrant workers and members of their families, who face special problems due to difficulties in ualifying for certain benefits and the territorial restriction of benefits, etc. 1art I of the Migrant or*ers ('upplementary +rovisions) Convention, 1# ("o. 1!-) constitutes the international community's first attempt to tackle the uestions of irregular migration movements and illegal employment that became acute at the beginning of the l6:=s. 1art II seeks to promote greater euality of opportunity and treatment of lawful migrants in respect of employment and occupation. This instrument was supplemented by the >igrant !orkers ?ecommendation, 56:; 0*o. 5;52. The >aintenance of Social Security ?ights (onvention, 56<9 0*o. 5;:2, to which was added a year later the >aintenance of Social Security ?ights ?ecommendation, 56<@, 0*o. 58:2, represents a comprehensive attempt to cover migrant workers and their family members, particularly those who, due to the temporariness of their moves and employment, may not be able to benefit from acuired rights or rights in the course of acuisition. Topical as they were at various points in time, the %rganization's standards in favour of migrants have only enjoyed limited and declining numbers of ratifications 0(onvention *o. 6:#75, (onvention *o. 55<#@6, (onvention *o. 57@#5< and (onvention *o. 5;:#@ ratifications2. >oreover, whereas these standards are of primary relevance to migrant
receiving countries, most States were sending rather than receiving workers at the moment of ratification. This trend is confirmed by the nternational Convention on the +rotection of the Rights of /ll Migrant or*ers and Members of Their 0amilies, which was elaborated with the technical assistance of the I$% and adopted by the )nited *ations Aeneral -ssembly in 566=. %nly 5= countries have so far been willing to be bound by it Bangladesh, Bosnia erzegovina, (ape Cerde, (olombia, +gypt, >orocco, the 1hilippines, Seychelles, Sri $anka and )ganda all senders of workers. %ne reason for the decreasing trend of ratification is the growing comple&ity, variety and spread of international migration movements. -nother is the difficulty of covering this comple&ity with stipulations that effectively secure migrants' basic rights. Det another set of reasons is political, such as the reciprocity principle underpinning I$% (onvention *o. 5;:, which reduces the instrument's appeal to developing countries. The %rganization's redress procedures under articles 97 and 98 of the (onstitution have been activated on a few occasions to correct alleged nonobservance of I$% standards, though it has usually been standards other than those mentioned above which have provided the basis of the search for solutions, such as the forced labour (onventions and the +rotection of ages Convention, 1! ("o. ). -t the beginning of the l6<=s, the situation of aitian migrants on the 4ominican ?epublic's sugar plantations was the subject of a complaint under article 98 of the (onstitution. The (ommittee of +&perts on the -pplication of (onventions and ?ecommendations has ever since reminded both countries of the need to implement fully the recommendations of the (ommission of Inuiry. 4uring the Aulf crisis, the Eederat ion of +gyptian Trade )nions made a representation under article 97 alleging, inter alia, that the country's workers who returned from Ira prior to the invasion of Fuwait had not received the wages owed to them. The %ffice has resorted to less formal means of tackling problems, always of course in the light of I$% standards. Eor e&le, following the e&pulsion of tens of thousands of Tunisian workers from the $ibyan -rab amahiriya in -ugust 56<;, the Aovernment of Tunisia lodged a complaint before the I$% against the $ibyan Aovernment alleging violations of (onventions *os. 6;, 555 and 55<, which both States had ratified. The 4irectorAeneral offered his good offices to assist the two countries in finding solutions to the problems raised, such as the nonpayment of wages and compensation due to premature termination of employment, etc. ?epresentatives of the two Aovernments met under I$% auspices to discuss the methods appropriate to dealing with those problems in the light of I$% standards3 and the matter was eventually settled by unilateral decision of the 1resident of the $ibyan -rab amahiriya. Det another approach was used to contribute to a solution of the many and widespread problems alleged to have occurred in the employment of -rab and -sian migrant workers in countries of the 1ersian Aulf region. Informal roundtable meetings of representatives from receiving and sending countries were held two were e&clusively focussed on the subject of migrants' recruitment and employment conditions, one spent much time on the problems e&perienced by domestics without publicity and without recommendations or conclusions to be agreed upon by the participants. The intense discussions helped the parties to understand
better the issues involved, although no breakthroughs appear to have resulted from them, due to the lack of any followup mechanism. T ec hni c al c ooper at i onandadv i s or ys er v i c es
The /old generation/ of technical cooperation projects that moved e&perts and euipment etc. to a country over lengthy periods of time got under way in the field of migrant workers in 56:8 in (olombia, which had reuested aid in the formulation and implementation of its policy of sending labour to Cenezuela. >ost activities took place in (olombia, others brought the two countries together through seminars. ?egional social security arrangements were the subject of several projects in -frica in the 56<=s, for e&le in the )nion of (entral -frican States 0)4+-( nion d2Etats d2/fri&ue Centrale2 and the +conomic (ommunity of the Areat $akes (ountries 0(+1A$ Communaut3 Economi&ue des +ays des 4rands 5acs 2. 4espite considerable efforts by the %ffice, including the training of social security administrators, the institutional links between member States of regional organizations never functioned properly. The entrepreneurial capacities sometimes attributed to migrant workers were the subject of projects in countries as different as Aermany and the 1hilippines. In Aermany, Turkish and other foreign nationals were helped and trained in smallenterprise development as well as in imparting training to second generation migrants in their enterprises, and a number of the enterprises supported by the I$% project are today flourishing businesses. In the 1hilippines, three pilot projects were carried out in >anila with the +mployers' (onfederation of the 1hilippines, in (ebu (ity with the (ebu (hamber of (ommerce and Industry, and in Tacloban (ity with the $eyteSamar ?ural 4evelopment !orkers' -ssociation, to test approaches for the delivery of support services to various target groups of return migrants and their families. - !orkshop on reintegration through microentrepreneurial development was held under I$% auspices in >anila in anuary 5666. - regional project directed from Bangkok in the late 56<=s and early 566=s ushered in a new generation of wideranging I$% assistance. Benefiting eventually 59 -sian countries of emigration, the regional project tackled their individual or shared economic, statistical and legislative information needs3 helped several of them to set up or e&pand emigration institutions3 provided training to government officials, including labour attaches stationed in migrantreceiving countries3 and brought to bear the %ffice's e&pertise on social security uestions at the national and subregional levels. Technical advisory services constitute the modem form of %ffice activities in the field of migrant workers, that is, policy analysis and guidance in response to direct reuests or under )*41's TSS5 auspices, as well as assistance to trade union organizations. - sample of technical advisory services include# •
a mission to $osco' a fe' 'ee(s before the dissolution of the )SS* 'hen far-sighted o+cials in the $inistry of Labour loo(ed for basic inspiration on future immigration and emigration policies. The mission,s
recommendations 'ere not 'ithout inuence in the design of basic policies and the institutional structure of 'hat later became the ederal $igration Service of the *ussian ederation/ •
•
•
a TSS-! assignment in !""0-"1 in the *epublic of 2orea that began 'ith a survey of 304 small and medium-si5ed rms in Seoul and other industrial centres6 'as follo'ed by a rapid assessment mission to Seoul6 and ended 'ith the presentation of the ndings and recommendations at a 'or(shop organi5ed by the 2orea ederation of Small 7usiness/ an evaluation in the 8hilippines of the training received by a variety of persons 'ho provide information to people considering to 'or( abroad. *ecommendations 'ere formulated on ho' to render the pre-employment orientation more useful and e9ective/ t'o 'or(shops in :a(arta - one in September6 the other in ;ovember !""< - 'ith the aim of familiari5ing Indonesian policy ma(ers and ;=Os 'ith policy options in the broad eld of the protection of migrant 'or(ers.
Ot herac t i v i t i es
- few distinct other activities are worth singling out summarily. -t the beginning of the 566=s the %ffice began to search for and obtained e&trabudgetary funds to carry out a project aimed at reducing discrimination against migrant workers in highincome countries. This project comprises 0i2 /practice tests/ to determine whether or not employers discriminate against migrants who are legally on a par with nationals, 0ii2 evaluations of the actual workings of national redress mechanisms that aggrieved migrants can make use of, and 0iii2 e&aminations of eual opportunity training courses of public or private employers in favour of personnel managers, recruitment officers, etc. The I$%'s Bureau of Statistics has e&tended its e&pertise to international migration statistics and reuested information on data from countries for possible inclusion in future issues of the Dear Book of $abour Statistics. Auidelines to improve data collection systems on international migration have also been elaborated, which can serve as a basis for future technical advisory services in this field. These were published in book form under the title nternational Migration 'tatistics6 4uidelines for improving data collection systems, by ?. +. Bilsborrow, et al. 0I$%, 566:2. Two manuals to serve policymakers and administrators have been elaborated by the I$%. %ne is entitled Employing foreign 7or*ers. / manual on policies and procedures of special interest to middle8 and lo78income countries, by !. ?. Bohning 0I$%, 56682, the other 'ending 7or*ers abroad6 / manual for lo78 and middle8income countries, by >. -bella 0I$%, 566:2. I I I .Apr i l 1997Meet i ngofEx per t s
!hile I$% (onventions have often been path breaking instruments, they have a tendency to /age/ where they go into detail of the subject matters, or they may not be fully adapted to changing circumstances or new developments. This holds true of the two (onventions concerned with migrant workers, which date back to 5676 and 56:;, respectively. To take
account of this fact, but without going through the process of elaborating new (onventions, the I$% convened, in -pril 566:, a Tripartite >eeting of +&perts on Euture I$% -ctivities in the Eield of >igration. In actual fact, the -pril 566: >eeting of +&perts had three purposes. The first one was to elaborate guidelines on the protection of 7or*ers engaged in time8bound employment essentially seasonal workers, true projecttied workers, special purpose workers, crossborder service providers, students and trainees who were not covered by the 5676 and 56:; (onventions. The second was to elaborate guidelines on the protection of migrants 7ho are recruited by private employment agencies. In the I$%, /guidelines/ have the objective of inspiring policy makers and administrators. They are not subject to ratification or adherence and, therefore, carry no legal obligation. It is up to the I$%'s constituents to decide how to use them and adapt them to their national situations. The third purpose of the -pril 566: >eeting of +&perts was to tackle the problem of persistent maltreatment and e9ploitation of migrant 7or*ers, which continued to e&ist in several parts of the world even though international standards of minimum treatment had been defined at the global level. The uestion was, if the %rganization's international migration standards had limited influence on the recruitment and employment conditions of migrants in the world at large, and if the formal and informal redress mechanisms to right alleged wrongs had not in the past had the desired impact, whether one could envisage an instrument that would appear less threatening to governments and more along the lines of technical advice rather than /international condemnation./ !hat the I$% envisaged was referred to as pattern or practice studies of the e9ploitation of migrant 7or*ers not falling under Convention8based procedures. The -pril 566: >eeting of +&perts agreed to this idea, and later in the year the Aoverning Body of the I$% formally endorsed it. The details are indicated in -nne& III of document AB.9:=G;. To illustrate the idea of /pattern or practice studies/, one e&le might be that of a trade union organization in a country of employment which appeals to the %ffice to look into the alleged e&ploitation of migrants in a particular sector of the economy. The %ffice could respond positively and envisage to commission, or carry out, a study in that country. The results of the investigation would hopefully be the subject of at least informal discussion, preferably tripartite, within the country concerned, with a view to arriving at lasting improvements in situations manifestly far removed from the stipulations of e&isting international labour standards.
