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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2398

Sri Lanka Points out Inherent Contradictions on International Migration

United Nations, 01 November, (Asiantribune.com): In a key note presentation on the subject of globalization, migration and human rights, Sri Lanka's Permanent Representative to the UN Ambassador Prasad Kariyawasam said there are inherent contradictions in several countries with regard to their rhetoric and practice on migration issues. Often it can be observed that migration is being simultaneously encouraged and combated. Policy pronouncements often vary with informal arrangements that are tolerated.

In some instances, he said, some authorities informally tolerate irregular migration while official action is taken to reinforce controls against so called illegal migrant workers. However the net effects of these actions are that, on the one hand there will be a continued supply of cheap labor, while on the other hand illegal migrants will not be able to defend their rights, dignity or seek decent working conditions, leading towards greater stigmatization and isolation from the society for which they in fact contribute economically. Moreover as a result of strong pull factors that promise regular work, irregular migration has given rise to lucrative business opportunities for some unscrupulous agents to arrange travel, obtain documents and cross borders at countries of destination. And clearly such clandestine means are operational only because of lack of opportunities for legal migration.

At a seminar for members of parliamentary committees working on human rights and migration, Ambassador Kariyawasam also pointed out that in this backdrop, it’s very disturbing to observe attempts being made by those who otherwise champion civil and political rights to propose new ideas and initiatives at relativizing human and labor rights by discounting rights in relation to international migration. Proponents of such ideas seem to treat human beings as commodities for trade in the global market place. Such an approach presumes that rights can be derogated through negotiations, like in commodity trading and renounced in exchange for economic benefits in the form of access to labor markets. It also assumes that migrant rights can be forfeited in exchange for access to temporary or targeted employment opportunities in some labor markets of some developed as well as developing countries.

For instance in some labor receiving countries, migrant workers are not allowed to exercise freedom of association and in some cases even freedom of movement is curtailed. Domestic workers, especially females, in some regions have been subjected to a restrictive set of rules based on outdated local traditions and with utter disrespect to current universally accepted standards of human dignity. Such approaches seek to adopt a minimum set of rights far below the protection granted to migrant workers and their families under the 1990 International Convention on Protection of Migrant Workers as well as relevant ILO Conventions. This effort is aimed at establishing a set of guidelines that are far more general and vague than the explicit standards and mechanisms found in ILO and the Migrant Workers Convention.

In this context it is unfortunate that restrictions on the movement of migrants have been arbitrarily clamped on account of irrational fears as well as administrative and economic policy dilemmas by associating migrants, in particular so called “irregular” migrants , with crime, arms and drug trafficking and terrorism. And extreme measures have been taken to combat illegal migration. Often, social stigmatization and outright violence have been encouraged with utter disregard to human dignity of the migrant worker who in fact, contributes to the growth of the economy and to the welfare of the society in which he or she lives. Interestingly, mobility of people is being restricted at a time when vast trading and supply links make mobility of goods and services ever more free and fast. Goods can move but not people!

Migration has always been a phenomenon of human society, since the time the human beings started moving out of his familiar habitat to explore the unknown, in early human history. Such migration was taking place as a natural process. However, in the modern world, migration has become a rapid trend, taking place at a rate similar to and in tandem with the globalization process, engulfing all aspects of modern life. Today, there is an estimated 200 million migrants world over, women accounting for half this number. In fact, the number of migrants world wide would constitute the 5th most populous country in the world. However, there is yet no United Nations high official or an Institution specially dedicated or mandated to focus on international migration and connected issues.

The notion of human rights has evolved throughout human history based on ethics and values common to major religions and historical traditions. However, during the post 2nd World War era, these human rights ethics have been codified with the implicit acceptance that several of these values are true and valid for all peoples in all societies, irrespective of their economic, political and ethnic differences. Consequently, with the adoption of the Universal Declaration of Human Rights (UDHR), the 60th anniversary of which will be celebrated next year, there is international acceptance that human rights are universal, indivisible and interdependent, and that political and civil rights cannot be separated from social, cultural and economic rights. The emphasis is that all such rights are inalienable and cannot be denied to any human being. In this regard it is also important to recall the Declaration of Philadelphia at the creation of the International Labor Organization in 1944, which elaborated, similar to UDHR, the fundamental notion that “all human beings, irrespective of race, creed or sex have the right to pursue both their material wellbeing and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity”.

As a follow-up to the UDHR, several core human rights instruments have been adopted by the UN General Assembly over a period of time with an implicit understanding that the implementation of the principles of human rights in all these instruments could provide a foundation for good governance, promote better social and economic ethics in human interactions, both within and among nations, and regulate national and international conduct for good community relations, including in the sphere of international migration.

It is in this context that the UN has provided leadership for the establishment of a series of international treaties and Conventions codifying human rights norms and standards with a view to recognizing the inherent dignity and the equal and inalienable rights of all members of the human family. The scope of many of these Agreements includes the rights of migrants in some form or the other. Important provisions relating to the rights of migrants are also found in ILO Labor Conventions, Vienna Conventions on Consular Relations, as well as the Protocols to the UN Convention against Trans-National Organized Crime. The other core UN Human Rights instruments that are of importance to migrants are; the International Covenant on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Torture, and the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child.

The International Convention on the Protection of All Migrant Workers and Members of their Families is the most comprehensive international treaty dealing with the rights of migrant workers. And I have the privilege at this moment to Chair the Treaty body of this Convention that monitors its implementation. This Convention, popularly referred to as the International Convention on Migrant Workers (ICMW) is one of the “core” international human rights treaties, which together with eight other treaties form the United Nations human rights treaty system. Most of the rights contained in other “core” treaties also apply to non-citizens and thus provide basic protection for migrant workers and their families against discrimination and other violations of their fundamental human rights. However, the Migrant Workers Convention brings coherence in the protection of human rights of migrant workers and members of their families. It codifies existing standards of migrant worker rights, expanding their scope in a forward looking manner. The Convention aims at protecting human rights of migrant workers and their families at all stages of the migration process; in the country of origin, transit and employment, by clarifying obligations of the States parties at each stage. The Convention is a comprehensive, progressive and forward looking instrument and has taken into account ongoing and even emerging trends in the world, both in terms of ever increasing mobility of people as well as the continuing emphasis on human dignity and human rights of the individual.

The relationship and the link between globalization, migration and human rights is an important but complex issue to address. First and foremost, we need to accept that globalization has failed to usher an era of prosperity to all, as some claim it would. While globalization has given a major impetus to global economic growth, it has failed to provide benefits to all sections of communities and to reach the periphery. A large number of people mainly in villages in the South have not had an opportunity to reap the benefits of globalization. The single biggest failure of globalization has been its inability to create employment in places where people reside.

Consequently, as opportunities for economic growth and employment diminish at home, migration gains impetus as a phenomenon in tandem with the globalization process. At the same time, the demand for migrant labor has also increased as a result of demographic trends due to ageing work forces in many developed and even in some developing countries. In addition, requirement for highly educated and skilled labor is expanding, providing opportunities for mobility of Specialists including from the South to North, the latter creating a brain drain, affecting the development potential of developing countries. Another disturbing trend is an effort by many commercial establishments to fill blue collar, locally shunned jobs with migrant workers and to acquire economic competitiveness by obtaining cheap and low skilled migrant workers in sectors that are no longer attractive to local populations. Migrant labor is now being used more as a low cost means to sustain entire sectors of economic activity that are only marginally competitive. In this context, it has been observed that migrant workers largely do Dirty, Dangerous and Degrading Jobs.

The so called “3-D jobs” involve sectors like agriculture and food processing, construction, cleaning and maintenance, hotel and restaurant backroom services, labor intensive assembly and manufacturing, the sex industry, and domestic labor. Unfortunately, domestic migrant labor is overwhelmingly female, and conditions of employment for most are harsh and sometimes cruel. It is also apparent that commercial interests, market forces and social compulsions that create these jobs for migrant workers are often unconcerned about the legality or ethical standards of employment.

Nevertheless, these opportunities act as a strong pull factor especially for so called “illegal migrants” searching for work. When there are opportunities for work, those seeking employment, due to poverty at home, or even marginal betterment of life elsewhere, are attracted. And they do so without any regard to their migration status in desperation to obtain work.

The only remedy to discourage such so called illegal labor will be for States to assure legal opportunities to fill the labor market gaps and encourage lawful employment with decent working conditions. And it is becoming clear that efforts at strengthening border patrols or taking stringent punitive measures to restrict employment for migrant labor when jobs are readily available in the market will not succeed. Such measures will only lead to job seekers taking increasing risks even at the cost their lives.

It is unfortunate that restrictions on the movement of migrants have been arbitrarily clamped on account of irrational fears as well as administrative and economic policy dilemmas by associating migrants, in particular so called “irregular” migrants , with crime, arms and drug trafficking and terrorism. And extreme measures have been taken to combat illegal migration. Often, social stigmatization and outright violence have been encouraged with utter disregard to human dignity of the migrant worker who in fact, contributes to the growth of the economy and to the welfare of the society in which he or she lives. Interestingly, mobility of people is being restricted at a time when vast trading and supply links make mobility of goods and services ever more free and fast. Goods can move but not people!

Due to public demand and its wide social and economic impact, the critical issue of international migration in all its aspects has now gained attention of the international community and it is no more possible to consider migration only as a national issue.

Consequently, in recent times, there have been several global initiatives to address this complex issue in some aspects and manifestations. However these attempts have not been comprehensive enough in their scope, but more compartmentalized avoiding several crucial sensitive issues. In this regard, The 2005 UN World Summit, as well as the UN High-Level Dialogue on International Migration and Development did address some issues pertaining to international migration. The Global Forum on Migration and Development was yet another attempt. But none of these initiatives have focused on a rights based approach for migrants. Instead relative economic advantages and management of migration have been the primary focus.

The time has no doubt come for the international community and for the peoples of the world to revisit and re-emphasize their basic human obligations to fellow human beings; who are migrants, migrant workers and members of their families. For this purpose, a rights based approach needs to be adopted in the conduct of all economic and social functions so that the globalization process will not diminish the essential human values that societies have built throughout the evolution of human history. At present, migrant workers and members of their families suffer mostly from the lack of focus on a rights based approach in international migration. We need to recognize unequivocally that migrant workers and their families above all, are human beings with rights and are active agents in every society, developing or developed, working and contributing towards their progress and economic well-being. The question of migrants in the first place must be approached from a perspective of rights in line with the Universal Declaration on Human Rights and obligations under core human rights treaties, in particular the Migrant Workers Convention.

The Migrant Workers Convention is a broad based instrument and has nine parts comprising of 93 articles and in particular facilitates the protection of certain rights that are of special relevance to migrants in all stages of the migration process. The Convention also aims at assisting Governments to develop strategies to prevent illegal migration movements. Part IV of the Convention contains provisions on the promotion of sound, equitable, humane and lawful conditions in connection with international migration. In particular, Article 68 requires States to collaborate in order to prevent and eliminate illegal or clandestine movements and employment of migrant workers in an irregular situation. Steps to be taken by States entail measures against the dissemination of misleading information, measures to detect and eradicate illegal or clandestine movement of migrants and to impose effective sanctions on those who organize and operate such movements. When discussing migration management, therefore, the Convention, due to its comprehensive nature, is extremely relevant as a means of providing guidance to States.

Despite the intrinsically progressive nature of this Convention, ratification remains far below expectations. Parties to the Convention are still predominantly labour sending States. To date, many of the major labor receiving States are not among the current parties to the Convention. It is unfortunate that no Western State has yet signed or ratified the Convention despite some of those States having actively participated in drafting the Convention, and none having voted against the convention at the time of its adoption by the United Nations, by consensus.

This brings us to the question as to why migrant rights, in particular migrant workers rights in the Convention, has met with insufficient enthusiasm on the part of many States, especially those States that usually champion human rights issues. There have been several interesting views on this matter. Let me reflect on some of them:

For instance, the Migrant Workers Convention has given rise to many misconceptions. One misconception is that adherence to the Convention will make labor sending countries lose their markets in some receiving countries. However, experience of several major labor sending countries show that this apprehensions is unfounded.

Another common misconception is the often expressed opinion that the convention favors irregular migration, and that granting more rights to migrants would make States more attractive to irregular migrants. On the contrary, the Convention obliges States parties to take measures to counter illegal migration. The preamble and article 35 reflect these ideals. The concept of giving rights to irregular migrant workers was inspired not only by the basic principle of respect for the dignity of all human beings, but also by the desire to discourage recourse by employers to irregular labor, by making such recruitment much less economically advantageous. Measures suggested in the convention can be deemed as strong disincentives for employees to discount locally available labor in favor of cheap migrant labor. Thus the Convention is designed to avoid exploitation, and can reduce competition between local and migrant labor and therefore reduce societal tension on this account.

It is also becoming apparent that the present political climate is not very conducive to granting of rights to migrants. Public opinion in many receiving countries has turned against migrants who are perceived as competition and a danger to local job markets. Prejudices against migrants are also aggravated by a trend to view foreigners as potential security threats. Moreover, family reunion may run counter to the policy of some receiving States to restrict the number of migrants and encourage only productive migrants. In these circumstances, some States may feel that the ratification of the Convention and thus recognition of rights of migrant workers, in particular irregular migrant workers within their borders would meet with opposition of society at large, and exacerbate social tensions. Some States may also perceive that the State would be subject to examination by an international body leading to an embarrassing situation of human rights violations being highlighted at international level. All these fears lack credibility. In my view, these are results of a lack of political will and an absence of commitment for social responsibility and perhaps a matter of administrative and commercial expediency. It is not resource constraints that are holding back States on this account. The Migrant Workers Convention is not an instrument for a more liberal immigration policy. The Convention only seeks to ensure that all human rights are accorded to migrant workers too, in recognition that they are also part of our large human family.

The economic benefits of migration for both sending and receiving countries are increasingly becoming apparent. This fact was the primary focus of the recently concluded UN High-Level Dialogue on Migration and Development as well as the Global Forum on Migrants and Development. It has now been widely recognized that migrant workers are actively contributing to the growth and economic prosperity of receiving countries. In addition, sustained levels of migration have been recorded as offsetting natural reduction of the working age population in many receiving countries.

On the other hand, many countries of origin in the developing world are benefiting immensely from inward remittances by migrant workers. For many developing countries such remittances have become main stays in financial inflows, even surpassing Overseas Development Assistance (ODA) and revenue from traditional exports.

A new UN study reveals that in the year 2006 migrants working in industrialized countries sent home more than 300 billion US Dollars to their families surpassing US Dollars 104 billion provided as ODA by donor nations and also exceeding Foreign Direct Investments (FDI) in developing countries which totaled only US Dollars 167 billion. It has also been observed that sending countries could benefit from the eventual return of some, who have acquired new skills, new money and therefore help beneficially transform economies and institutions in their countries of origin.

Taking into account all aspects relating to migrants, it is becoming increasingly apparent that protecting human rights of migrants is a win-win situation, both in economic terms as well as in giving effect to globally accepted human rights standards and values. However, it is clear that more work and follow-up is required to evolve a global consensus on this crucial issue. And in this context, the Migrant Workers Convention needs the support of all of you who believe in the rights based approach to migration.

National legislatures and Parliaments are doubly important and crucial with regard to migrant rights .Parliamentarians have an important role to play in mainstreaming issues pertaining to migrants and in particular for protecting rights of migrant workers and members of their families. In this regard it is essential that the ongoing focus of civil society Organizations and Parliamentarians for promoting rights of migrants gain a critical mass of mobilization leading towards a call for more rigorous and sustained observance of the rights of migrant workers. As recently stated by the High Commissioner for Human Rights at the first Session of the Human Rights Council, it is also essential to focus on obtaining increased ratification of the Migrant Workers Convention. And assistance of the Parliamentarians in this regard will be an important element in this campaign.

I would like to take the liberty to present to you for your consideration several measures that you as Parliamentarians could take to help migrants, more particularly, migrant workers, nationally and world wide. Such action, among other measures, could include;

(a) Monitor respective Government policy decisions as well as individual cases with regard to migrant rights pertaining to compliance with the Convention by the State Parties, where applicable.

(b) Table the issue of migrant workers in respective Parliaments and impress upon national governments the importance of becoming a party to the Migrant Workers Convention and the relevant ILO Conventions.

(c) Invite comments on the possible ratification of the Convention by Civil Society including Migrant Associations. Where applicable take initiatives for the study of the compatibility of domestic legislation with the convention

(d)Formulate programmes to monitor human rights of migrants with a view to investigating complaints and visiting migrants in administrative detention and providing legal assistance.

In our inter-dependent world that values freedom, rights and dignity of the individual, it is essential that the Parliamentarians lead the international community, by making every effort to treat migrants, in particular migrant workers and their families, as human beings with equal rights, wherever they live and wherever they come from. Anything less, we fail as fellow human beings.

- Asian Tribune -

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