Research Project APMRN/UNESCO

Identification of the Obstacles to the Signing and Ratification of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

Nicola Piper (ANU) and Robyn Iredale (APMRN, University of Wollongong)

DESCRIPTION AND SIGNIFICANCE

In the contemporary context, globalisation processes have impacted upon migration patterns worldwide, with the Asia-Pacific region having emerged as a particularly important source for the export of labour. This region is also gaining more significance as importer of migrant labour resulting in substantial intra-regional flows. In addition to the overall magnitude of these intra-regional movements, another important trend requiring specific policy responses is the feminisation of labour migration). 

The increasing presence of non-national workers results in a growing need for concepts, institutions, and legal instruments to protect the rights of migrant workers. International concern with the rights of migrant workers began with the establishment of the International Labour Organisation (ILO) in 1919 (which became a UN specialised agency in 1946) and has to varying degrees reached the agenda of other international organisations. There are a number of UN Conventions specifically relevant to this issue, commencing with the 1975 UN Convention on Basic Human Rights of Migrant Workers and its expanded version, the 1990 UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. The latter breaks new grounds by clarifying the full application of the human rights law to migrant workers, defining what constitutes a migrant worker and extending some of the provisions to undocumented workers. So far, it has gained only limited support from states and has not received the required minimum number of ratifications to come into force. This stands in stark contrast to other UN conventions (the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child) covering other vulnerable groups such as women and children. This is related to the prevailing view that migrants do not share the same entitlements to the full protection of human rights law as citizens.

On the whole, an international human rights approach to the plight of migrant workers is specifically important in the context of Asia, as it lacks a human rights instrument and monitoring regime. The only two countries in the Asia-Pacific region that have ratified the 1990 Convention so far are the two sending countries of the Philippines and Sri Lanka.

From the perspective of international law, the ‘rights of states’ clearly prevail over the ‘rights of migrants’ and ‘states retain the right to set the conditions under which foreigners may enter and reside in their territory’. Migrants who are holders of work permits/visas tend to be in a better position than undocumented migrant workers but they may be obliged to succumb to state restrictions and their working conditions may be very poor. The situation is usually much worse for undocumented migrant workers who are afforded little or no legal protection and face the constant threat of deportation.

Women are often particularly vulnerable and with the feminisation of migration in Asia, this has become a major issue. The high proportion of women working in domestic service places many women outside of the public sphere. Accordingly, they receive little scrutiny from policy makers and as they may not outside of a recognised workplace they may not be afforded legal protection.

The overall position of migrant workers (but especially for women) is compounded by the widespread existence in the Asia Pacific region of irregular movements that occur for a variety of reasons. These streams, defined as smuggling and trafficking, are usually outside of the control of governments though they may at times occur with government complicity. ‘Smuggling’ usually refers to the facilitation of migration by taking or organising movement across a border for a fee. This is perceived as a crime that violates state sovereignty. Chantavanich et al. (2001) found that this was much more common in the region than ‘trafficking’. The latter term refers to the use of deception, coercion or debt bondage, at the beginning of the trip or at the end. This does not necessarily involve the crossing of borders or the ‘illegal’ crossing of borders. ‘Trafficking’ is seen as a crime against the individual and only secondarily as a violation of state sovereignty.


THE CONTEXT

There are considerable obstacles to Asian Pacific countries signing on to the UN Convention. They include:

  • the idea that the concept of ‘rights’ is a Western concept and not applicable or appropriate in many Asian countries;
  • a lack of awareness and knowledge of the Convention and misconception as to the potential impact of the Convention;
  • the fact that the collection of migration data is often incomplete and this would be exposed;
  • an unwillingness to acknowledge or document the number of ‘undocumented’ migrant workers present in an economy as they provide a valuable, cheap labour resource;
  • pressure from employers to ‘turn a blind eye’ to irregular migration;
  • fears abiding among receiving countries about the rising labour costs and lack of competitiveness that may ensue from more costly protection/monitoring procedures or mechanisms;
  • adequate legal frameworks and enforcement mechanisms are often not in place and the cost of putting such mechanisms in place would be high and possibly out of reach of many sending and receiving countries;
  • international instruments would need to be translated into national laws and this is a time consuming and costly process;
  • fears existing among sending countries that ratification of the convention may make their workers less competitive in international labour markets; this will have implications for unemployment, political and social stability, and ‘development’ at home.

Sending countries have to date been most ready to sign on to the convention as part of a political/social agenda to protect the rights and conditions of their offshore workers. The actual attitudes and situation that pertain in each country need to be better understood so as to enable discussion about possible means of alleviating the concerns and fears of countries in the region.


AIMS OF THE PROJECT

The overall aim is to promote acceptance of the protection of human rights for migrants by means of gaining wider acceptance of the 1990 UN Convention on Migrant Workers. The project will investigate:

  • why a sample of both sending and receiving countries in the Asia Pacific region have not ratified the Convention and
  • develop recommendations as to how to get more countries to do so.

In addition to finding out from the different stakeholders what the obstacles are, the opportunities will also be examined. That is, what are the advantages that are conferred on countries that ratify the Convention?


GOALS

  • To encourage dialogue in the region among researchers, policy makers and NGOs;
  • To promote understanding of the major social, economic and political obstacles that prevent countries from signing the Convention;
  • To provide information on services/facilities that are available to assist countries to meet the criteria of the Convention;
  • To develop policy options to encourage governments to sign the Convention.
  • To give more detailed recommendations to UNESCO as to its role (to complement de Varennes’ report of 2002)


RESEARCH METHOD

This project will be carried out by conducting interviews with key informants in seven selected countries in the Asia-Pacific region, including sending and receiving states. Informants will be sought from the following groups: politicians and/or governmental officials (at national and local level), NGO representatives (migrant support groups and human rights groups), academics, embassy staff (labour attaches), lawyers (bar associations) and employers/industry/agriculture organisations. Up to five interviews in each group is the target. Field trips will be planned by way of already existing academic and activist networks established by APMRN (directed by R. Iredale) in all the countries included in this study. The APMRN’s country coordinators will help prepare the interview schedule so that the fieldwork can be carried out by Nicola Piper (ANU) in the most efficient manner, spending two weeks in each country. The selected countries and coordinators are:

Japan (Prof. Kenichiro Hirano, Waseda University, Tokyo),

Korea (Prof. Hye-kyung Lee, Pai Chai University)

Singapore (A/P Brenda Yeoh, National University of Singapore)

Malaysia (Dr Noorul Ainur Mohd Nur, National Institute of Public Administration, Kuala Lumpur),

Indonesia (Dr Riwanto Tirtorsudarmo, LIPI, Jakarta)

Bangladesh (A/P Tasneem Siddiqui, University of Dhaka)

New Zealand (Prof. Richard Bedford, Prof. Paul Spoonley).

The forthcoming conference entitled ‘Gender, Migration and Governance’, organized by K. Yamanaka, N. Piper and R. Iredale to be held at the ANU in December 2002 will bring together leading academics and activists in the region and hence consolidate the supporting network for the fieldwork. With the assistance of senior academics and activists in the countries to be investigated, contacts and appointments with government personnel and NGO activists will continue to be established well ahead of each visit.

The actual interview schedule will be designed to test the obstacles and opportunities of ratifying the Convention from a legal, social and political perspective. This will include the media and the role they are playing in the acceptance of human rights for migrants. The design of questions will be approached from an import-export perspective and will be trialed in Australia first. By grounding the open-ended questionnaire in an export-import dialectic, different questions will be asked at the import end informed by the export end and vice versa. In this sense, the interviewing schedule is dynamic rather than static.


SCHEDULE OF ACTIVITIES

  1. Project development and planning, including selection of countries to be included – September 2002 at APMRN Fiji conference;

  2. Fieldwork by researcher in collaboration with in-country APMRN coordinators/networks (from mid-December 2002 to mid-May 2003);

      • December 2002
        Week 2-3 New Zealand

      • January 2003
        Week 3-4 Indonesia

      • February 2003
        No activities

      • March 2003
        Week 1-2 Korea
        Week 3-4 Japan

      • April 2003
        Week 1-2 Malaysia
        Week 3-4 Bangladesh

      • May 2003
        Week 1-2 Singapore

  3. Preparation of draft country reports (by end of June 2003);

  4. Two workshops (in East Asia, possibly Korea, and SE Asia, possibly Indonesia) on draft country reports (July 2003) — including policy makers, NGOs, researchers, international organisation representatives and Metropolis network participants — conditional on extra funding;

  5. Finalising of overview report (general overview of situation based on country reports) (August 2003);

  6. Presentation of paper at Metropolis conference in Vienna in September 2003.


PERSONNEL

Coordinator and team leader – R. Iredale is Director of the Secretariat, APMRN. E-mail: apmrn(at)uow.edu.au. 

Researcher – Nicola Piper is based in the Regulatory Institutions Network (RIN), in the Research School of Social Sciences, at the ANU, Canberra. She will participate in this project as a full-time researcher but with contribution to go to the ANU. However, the RIN should be named in the contract as a collaborating institution for the purposes of insurance and absence arrangements. E-mail: nicola.piper(at)anu.au.

 


References

Battistella, G. Asia, M., Adi, R., Wong, D., Afrizal, T., Amarapibal, A., Beesey, A. and Germershausen, A. (2002). Unauthorized Migration in Southeast Asia, Ford Foundation Project, Scalabrini Migration Center, Manila.

Chantavanich, S., Wille, C., Angsuthanasombat, K. Asia, M., Beesey, A. and Sukamdi (2001). Female Labour Migration in South-East Asia, Ford Foundation project, Asian Research Centre for Migration, Chulalongkorn University, Bangkok, Thailand.

De Varennes, F. (2002). ‘Strangers in Foreign Lands’ – Diversity, Vulnerability and the Rights of Migrants’. UNESCO-MOST Strategy Paper. 9 September 2002.

Ghai, Y. (1999). ‘Rights, Social Justice and Globalization in East Asia’, in J. Bauer and D. Bell (eds), Challenge for Human Rights, Cambridge: Cambridge University Press.

Human Rights Law Group (2001). 'Initiative Against Trafficking in Persons', www.hrlawgroup.org/site/programs/traffic/No3.htm (07 Dec. 2001).

Lim, L.L. & Oishi, N. (1996). 'International Labor Migration of Asian Women: Distinctive Characteristics and Policy Concerns’, Asian and Pacific Migration Journal, vol. 5(1): 85-115.

Piper, N. (1999). ‘Labor Migration, Trafficking and International Marriage: Female Cross-Border Movements into Japan’. Asian Journal of Women’s Studies, vol. 5(2): 69-99.

Weiner, Myron (1995). The Global Migration Crisis – Challenge to States and to Human Rights. Harper Colins College Publishers.

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