CYIL vol. 10 (2019)

DIANA CUCOS CYIL 10 ȍ2019Ȏ Migrants have rights under two categories of international instruments: the central human rights treaties, whose provisions apply universally, and the CMW and ILO conventions, which specifically apply to migrant workers. The predominant position was one in which migrant workers are protected under a combination of general international law, human rights law, labour law, and international criminal law. This position began to change when governments adopted, on 18 December 1990, the CMW. The General Assembly noted that although there was “an already established body of principles and standards” for migrant workers, their “human rights and dignity” were not yet fully ensured. International Labour Standards ILO labour standards focus on labour rights, including forced labour and exploitation. They also provide specific protection for migrant workers. There are three ILO principal and legally-binding instruments concerned specifically with the labour rights and legal status of migrant workers: the Convention concerning Migration for Employment (Revised) No. 97 (1949), the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunities and Treatment of Migrant Workers (Supplementary Provisions) No. 143 (1975) as well as the Convention concerning Decent Work for Domestic Workers No. 189 (2011). All three have been complemented by non-binding Recommendations (Nos. 86 and 151) that contain clarifications and further guidelines. Convention No. 97 concerns mainly state-organized labour migration, rather than spontaneous movements. It contains no safeguards for irregular migrant workers. The instrument sets forth the rights of migrants in relation to remuneration, social security, taxation, access to trade unions, and transfer of personal belongings. Convention No. 143 has a broader personal and material scope than Convention No. 97. It affords specific protection to irregular migrants, particularly with regard to the protection of their basic human rights and their rights arising out of past employment. In addition to setting out the rights of irregular migrants, the convention also provides the rights to equal treatment with nationals. Article 14(a) which relates to access to States’ national labour markets could be considered as a provision which States regard as a continued obstacle to their ratification. Convention No. 189 was the first multilateral instrument to establish global labour standards for domestic workers, guaranteeing them the same basic rights as other workers. It provides that domestic workers, regardless of their migration status, have the same basic labour rights as those recognized for other workers: reasonable hours of work, a limit on payment in-kind, clear information on the terms and conditions of employment, as well as respect for fundamental principles and rights at work, including freedom of association and the right to collective bargaining. 24 The Recommendation No. 86 addresses family reunification, and provides for continued residence in the host country in case of loss of employment. The two systems – protection of migrants under the ILO labour standards and under the United Nations and regional treaties – are complementary and mutually reinforcing. ILO labour standards had a very significant impact on the content of the international human rights 24 Legal Instruments on International Migration. Available at: https://www.un.org/en/development/desa/ population/publications/pdf/migration/migrationreport2013/Chapter3.pdf.

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