A Human Rights Perspective on the International Instruments, Law Institutions on Migrant Workers

As a human rights lawyer and now a member of a United Nations Criminal Tribunal, and particularly because of my unforgettable experience in March 1995, in our collective efforts to save the life of Flor Contemplacion, I feel honored to be one of your speakers in this important conference.

We live in a time of global political turmoil and serious international economic disorder. Among the many symptoms of this disorder are the increasing number and continuing deterioration of the human rights conditions of migrant workers and refugees all over the world. And yet, as we all know, there is still a low level of international and national awareness on the issues and problems confronting migrant workers. There is an even lower understanding of the deep-rooted causes of international labor migration and the problems of racism, xenophobia, discrimination and human rights violations committed against migrants.

 

For clarity, my piece will dwell specifically on “migrant workers” who have been identically defined by the 1990 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families and the Philippine Migrant Workers’ and Overseas Filipinos Act of 1995 (R.A. 8042) as “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” (Article 2(i) and Section 3 (a), respectively,). Republic Act 8042 added that “migrant worker” and “overseas Filipino worker” may be used interchangeably.

 

In the interpretation and applicability of pertinent domestic laws and international instruments, and as far as legal rights are concerned, there should be no distinction, in my view, between documented or legal migrant workers and undocumented, illegal or irregular workers.

 

Likewise the main points and issues in my discussion would be similarly applicable to immigrants, refugees, asylum-seekers and stranded persons.

 

Since it is necessary to cite specific cases and empirical data, I beg your indulgence when I make constant references to the Philippine setting and experience of Filipino migrant workers.

 

International Migrants as a Distinct Labor Force

 

Business people, tourists and traveling leaders and bureaucrats from the public and private sectors are fond of saying that we now live in a global village where freedom to travel, to work and to choose one’s domicile is a universal human right. Indeed, this right is so basic it is enshrined in the Universal Declaration of Human rights (Article 13 (2) ) and in many other international and regional instruments as well as in the fundamental laws of liberal democracies. But to hundreds of millions of people in poor countries like the Philippines, this basic right, just like other basic and fundamental rights, is merely illusory. The reality is that because of extreme conditions of poverty and joblessness, and in some cases, because of persecution and armed conflicts, millions of job-seekers migrate to other countries everyday not out of a well-informed choice but out of necessity, desperation and physical survival.

The United Nations and the International Organization for Migration (IOM) estimate that there are now more than 150 million persons who live outside their countries of origin as migrants and refugees. This means that one in every fifty human being or 2.5% of the total population of the world is either a migrant worker, a refugee, an asylum seeker or an immigrant living in a foreign country. IOM further predicts that the total number of international migrants will reach 250 million by year 2050.

These are conservative, if not inaccurate, figures. The statistics of both sending and receiving countries as well as international agencies generally include only documented or legal migrants. The undocumented and illegal workers whose numbers have increased in recent decades due to illegal recruitment, trafficking, human smuggling, over-staying and run-aways are obviously difficult to keep track of and count with some degree of accuracy.

The figures on migration of Filipinos reveal a higher percentage of migrants and typically mirror the problems faced by migrants in the receiving countries and the economic conditions in the sending countries. About 10% of the 74 million Filipinos are migrants and immigrants scattered in 181 countries. This means that there are only eight countries in the world where there are no Filipinos. Twenty percent (20%) of our population is directly dependent upon the incomes of Filipinos working abroad. Labor export is the number one industry in the Philippines and the biggest source of foreign earnings.

I live in a typical barangay (village) in a province in Central Luzon. In this village, going abroad to work is a staple topic of early morning conversation among the peasants and the dream of every peasant family, including my own folks.

Undoubtedly, the Philippine Government has commodified Filipino labor in order to ease the unemployment problem, earn much-needed foreign currencies to improve its balance of payments position and to defuse internal social tensions. Despite some limitations and constraints in organizing them, some experts have advanced the view that it is now time to consider migrant workers as a distinct sector or labor force. Whatever may be your view on this matter, it is not disputed that organizing and raising the social awareness of migrant workers and developing support networks to promote and protect their rights are urgent tasks for all committed social workers. I am sure the human rights lawyers in the sending and receiving countries readily see the phenomenon of international migration as a distinct opportunity and challenge to render enlightened and committed legal assistance and to assist social workers in developing the international migrants as empowered participants in the struggle of humanity for social change.

The Human Rights Problems of Migrant Workers

Studies and documentations on the human rights conditions of migrant workers reveal common problems and violations, wherever they are and regardless of their ethno-cultural background, religion, language or belief.

Migrant workers are often victims of deceit, fraudulent practices or misrepresentation committed by unscrupulous and illegal recruiters. Contract substitutions, excessive fees, promise of non-existent jobs and outright trafficking and human smuggling are now common. These violations are often committed thru the collusion of the violators with corrupt officials of the sending government, implicit tolerance of such government or as essential ingredients of government policy. If we study the recruitment procedure closely, we will readily see that these vulnerabilities of the migrant workers are imbedded in the system itself. They are rooted in the policy of the sending government commodifying labor and exporting warm bodies to solve its economic and political problems. And the violations will intensify for as long the sending governments continue to rely on the labor export program to solve their unemployment problems and to defuse the internal political crisis.

The violations of the human rights of migrant workers during the recruitment process constitute only a small fraction of their problems. Awaiting them in the receiving countries are more severe conditions that they have to bear or survive. Migrant workers are generally victims of racism, racial discrimination, xenophobia and other forms of human rights abuse and intolerance. Because of their conditions of vulnerability and the prevalent racism in the receiving countries, migrant workers are often exploited and maltreated by employers and recruiters, denied their basic human rights under international and domestic laws and subjected to various forms of discriminations. They are made to work long hours, including weekends and holidays oftentimes without overtime pay, forced to accept grave-yard schedules and assigned in types of work generally shunned by nationals. They are paid low wages often without medical, welfare and retirement benefits.

Despite their undeniable contribution to the economy of the receiving country they are stereotyped as job usurpers and criminals or dangerous persons. Either out of fear or sheer ignorance they are unable or are denied their basic right to form or join trade unions especially a militant one, or even to organize, join peaceful assemblies and air legitimate grievances. Because of sheer neglect, apathy, lack of political will and existing government policy not to offend the receiving government or jeopardize job opportunities there, migrant workers are denied access to national and regional legal fora even for grave violations of their basic human rights. This lack of judicial access is often aggravated by the laws and deliberate policies of the receiving government. Such government, as a rule, protect their nationals, discriminate against migrant workers or outrightly deny due process to the latter.

Children and women are particularly vulnerable to exploitation and abuse, including human smuggling and trafficking. Women have been victims of the most heinous crimes of sexual assault, murder and physical violence.

The Human Rights Watch has noted “the rise of xenophobia and racist violence against asylum-seekers, refugees and migrants in Western Europe throughout the last few years — and the emergence of political movements founded on the manipulation of racist fears and the promotion of racist exclusionary policies x x x” (Critique of the Draft General Conclusion of the European Conference Against Racism).

It is significant to note that the ILO and the OIM have recently stated emphatically that “it is necessary to recognize that migration can never be eliminated or even fully controlled.” They added that “with rising globalization, migration pressures will most likely increase” thereby presenting a “challenge to the international community to deal with this issue in the broader context of a coherent, human-centered and human rights-based response to globalization” (publication of the ILO and IOM on International Migration, Discrimination and Xenophobia, p.2).

Legal Remedies under International Instruments and in Legal Fora Are Mere Rhetoric and Illusory

In the historical and continuing struggle of humanity against oppression and exploitation, legal principles, standards and processes that embody respect for the dignity and welfare of the human being have emerged and accumulated in the statute books and judicial records. They are now enshrined in the legal systems of constitutional and liberal democracies which constitute the overwhelming majority in the community of nations. They are found in international and regional instruments, in national laws and in substantive legal remedies and processes of international and regional institutions and organizations. They are considered universal and part of the consciousness of the dominant sectors of societies especially among business and political leaders, mass media, NGOs, the academe and the religious. These prevailing legal principles, standards and processes have gained universal acceptance and validity among policy-makers and opinion-moulders, and are now standard reflex arguments of the ruling elites in defending and justifying the status quo whenever they are challenged to rectify or render justice to victims of human rights violations. Indeed, theoretically these legal principles, standards and processes apply to and protect every person or human being in this planet including migrants and refugees, stranded persons, run-aways, ship-jumpers and illegals, regardless of national origin, race, religion, language and belief. Lawyers and government leaders always love to argue this way!

But the real question for committed legal advocates and social workers involved in migrant workers’ rights is: how effective or beneficial in real and practical terms, are these laws and instruments and what can we do to avail of them to promote the fundamental rights and freedoms of migrant workers and their struggles as well as our struggles for a just and humane society.

The more we study closely these laws and instruments, the more we become convinced that there is a wide gap between legal rhetoric and legal enforcement. There is no space in my paper to discuss in-depth the details or even the fundamentals of these laws and instruments. But the list that follows will give us an idea of their comprehensiveness and the obvious validity of the positions which I have just formulated especially to you who are familiar with migrant workers’ issues and problems.

1.Universal Declaration of Human Rights
2.International Covenant on Civil and Political Rights
3.International Covenant on Economic, Social and Political Rights
4.Convention on the Elimination of the All Forms of Racial Discrimination
5.1989 Convention on the Rights of the Child
6.ILO’s Convention on the Worst Forms of Child Labor
7.1979 Convention on the Elimination of All Forms of Discrimination Against Women
8.1961 Convention on the Reduction of Statelessness
9.1954 Convention Relating to the Status of Stateless Persons
10.1949 ILO Convention No. 97 Concerning Migration for Employment
11.1975 ILO Migrant Workers’ Convention No. 143
12.1958 ILO Convention No. 111 on Discrimination in Respect of Employment and Occupation
13.UN Protocol Against Trafficking in Persons – Especially Women and Children or Trafficking Protocol
14.UN Protocol Against the Smuggling of Migrants by Land, Sea and Air or Migrant Smuggling Protocol
15.1951 Convention Relating to the Status of Refugees and its 1967 Protocol
16.1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
17.1962 Equality of Treatment Convention No. 118
18.1982 Maintenance of Social Security Rights Convention No. 157
19.1998 ILO Declaration on Fundamental Principles and Rights at Work
20.1948 ILO Convention on Freedom of Association and Protection of the Right to Organize
21.ILO 1949 Convention No. 98 on the Right to Organize and Collective Bargaining
22.ILO Convention No. 138 on Minimum Age
23.1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

( For brief discussion on these instruments see the publication of the ILO and IOM on International Migration, Racism, Discrimination and Xenophobia and the Critique of the Draft General Conclusions of the European Conference Against Racism by the Human Rights Watch and the European Council on Refugees and Exiles.)

A cursory reading of these instruments will show that as early as 1949 international organizations, spearheaded by the International Labor Organization, have adopted instruments that not only recognized and anticipated the problems of migrant workers but actually proposed specific measures to address such problems. It is not clear whether these international organizations have predicted that migrant workers will reach their present numbers and generate the kind of problems and issues that now confront them. What is obvious is that as their numbers increase and the problems multiply, the international community correspondingly , though obviously not effectively, initiate measures, initiatives and remedies addressing migrant issues and problems. Principal among such measures are the international instruments I just mentioned which are in varying ratification status and very low degrees of acceptability and implementation.

A reading of these instruments will not only give us an idea of the multifarious problems of migrant workers but also, and more importantly, the wide range of legal gobbledygook employed by the ruling elite in responding to such problems. In terms of process such problems commence right at the recruitment stage in the sending country and progressively multiply and intensify as the migrant worker traverses the process until he or she reaches the workplace in the receiving country and begins to live or “exist” there as an unwanted stranger.

On paper, the responses and remedies proposed by the international instruments especially in the judicial and legal fora are not wanting in comprehensiveness. This is so because the sub-human living conditions and the violations of the human rights of the migrant workers are so stark and blatant it will be the height of naiveté and hypocrisy to ignore them or pretend that they do not occur. The coverage of the instruments range from a definition of the core rights of the migrant workers, elimination of all forms of exactions and exploitations in the recruitment process, recognition of trade union rights and family re-unification, addressing the specific problems of human smuggling and trafficking and the particular vulnerabilities of women and children, to the most serious problems of racism, xenophobia and discrimination.

We who are involved in migrant workers’ problems and issues and in the struggle of humanity for a just and humane social order would do well to view these international instruments from a human rights–centered and people-oriented perspective. Laws and instruments are but concrete expressions of the dominant interests of any given social order. The interstices of such laws are replete with safety valves and loopholes designed to preserve the existing social order both national and international and the dominance of the ruling elites and the imperialist super-power, its allies and its tentacles and network of international institutions. These instruments are adopted as accommodations and concessions to the ever-growing legitimate grievances, protests and demands of the oppressed and exploited poor for justice and betterment of their lives. They are more honored in breach than in implementation or compliance. They are the rhetorical tools of the dominant class to thwart or blunt the struggles of the poor for structural reforms.

This is true for national laws as well as international instruments. It will be an error to entertain any illusion that under the present unjust system these laws and instruments will be implemented or complied with in accordance with their letter or express provisions without any struggle and without a strong mass support. It will be an even graver error to rely on these legal provisions or in the legal fora alone to effectively protect or promote the rights of migrant workers. With your indulgence, let me say that as a senior member of the bar and long-time practitioner of my craft and now as member of an international tribunal, my experience in lawyering for the poor has taught me the important lesson that the legal battles of the oppressed and exploited sectors of our society are inextricably linked, if not dependent, on their strategic struggle for genuine social transformation; that in the handling of the legal battles of the poor, the legal advocate and the organizer must work closely together, using their skills and their deep commitment and dedication to the larger cause to raise social awareness, develop unity and militance and eventually rely on mass and protest actions to achieve their goals.

Having said these, I believe it will be wrong tactic to discard or ignore these international instruments, domestic laws, institutions and processes in our organizing, relief and welfare, and human rights work among the migrant workers. Again going back to my experience, there are various ways of invoking and utilizing in their own fora, illusory and rhetorical, even motherhood, legal provisions against exploitation and oppression perpetrated by both the sending and the receiving governments. These legal provisions after all have been crafted and popularized and had become part of the rhetoric of both the sending and receiving governments and the implementing agencies of international instruments. The skillful legal advocate and social worker can utilize them to achieve modest gains, as defensive weapons, to neutralize the oppressors and exploiters, to expose the unjust system and to raise the level of awareness of the migrant workers that their best weapons are their own unity and strength and militant struggles for fundamental reforms.

There is another common experience in our work among the poor whether as legal worker or social worker. There is need for creativity in developing networks and building alliances or solidarity. Legal provisions and legal fora are an important arena in the effective building of such networks and alliances.

My friends, we have a long way to go in our work among the migrant workers. Our adversaries are strong and entrenched. Our constituents are weak and understandably, in a state of fear, ignorance and vulnerability. These are challenges that summon the best in us; utmost strength, dedication, deep commitment, solid and unwaivering faith in the historical journey and unerring capacity of the poor to achieve genuine democracy and a just social order.

Public Defender

 

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