Pontifical Council for the Pastoral Care of Migrants and Itinerant People

People on the Move - N° 91-92, April - August 2003, p. 131-136

The International Convention 

on the Rights of Migrant Workers and their Families

Dr. Nilda M. CASTRO

Official of the Pontifical Council

for the Pastoral Care of Migrants and Itinerant People

On March 14, 2003, Guatemala deposited its ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,[1] thus becoming the 20^th State Party to the Convention that will enable it to enter into force on 1 July 2003. Then, its provisions will be binding to the State Parties that have adhered to it. There is therefore reason for great rejoicing on the part of those who have been working hard for the Convention’s ratification during all these years, since it was adopted by the General Assembly of the United Nations on December 18, 1990. 

1. Some Noteworthy Characteristics

The Convention provides a legal framework for the protection of the human rights of migrants, who are considered not just a factor of production, but human persons, with a social dimension, including having a family. Thus, the Convention considers not just the rights of the migrant, but also those of the members of his/her family. 

It acknowledges the state of vulnerability of migrant workers and the members of their families due to the fact that they are outside the territory of their land of birth. As a result, their rights are not addressed either by their country of origin and even less by their country of transit or employment. Thus it is necessary for the international community to provide protection of these rights. (See Preamble).

At last, a legal instrument defines who is a migrant worker. Some keen observers note that the Convention considers both men and women as migrant workers, while in the past women were usually considered as dependents of male migrants. It is an important detail for those who are working for women’s rights. Also, a person is considered a migrant even before he/she actually leaves his country of birth, as soon as preparations for migration takes place. (See Part I, Art. 1, nos. 1 and 2). Furthermore, migrants, who can freely choose their remunerated activity in the host country, do not lose their authorization of residence if they lose their job before the expiration of their work permit, thus allowing them to stay in the host country and look for a new job (See Part III, Art. 49, Nos. 2-3). 

It also recognizes the serious problems caused by migration for the families of migrant workers, especially because of the scattering of its members (See Preamble). Thus it binds States to take measures “to protect the unity of the families of migrant workers” and to facilitate their unification with their families (See Part IV, Art. 44, nos. 1 and 2).

The human rights of migrant workers and members of their families defined in Part III apply to all migrants, regardless of their legal status. Thus even unauthorized migrants are entitled to remuneration and other conditions of work and other terms of employment equal to that enjoyed by the nationals of the State of employment and their employers are bound to observe such treatment (See Part III, Art. 25).

The Convention also declares it unlawful for anyone, other than a duly authorized public official, to “confiscate, destroy or attempt to destroy identity documents, documents authorizing entry to or stay, residence or establishment in the national territory or work permits” (Part III, Art. 21). Even irregular migrant workers, therefore, are protected from unscrupulous employers or agencies that withhold their documents during their permanence in the country of employment.

It also upholds the right of authorized and unauthorized migrants to have access to emergency medical care and for their children to have access to education on equal basis with the nationals of the State of employment (Part III, Art. 28).  

Part IV, which defines the rights of migrant workers and members of their families who have regular authorization and documents, seeks to safeguard the equality between migrants and nationals, also in terms of employment rights and benefits. Access to housing, including social housing schemes (Art. 43, d) is a significant provision since it has been observed that difficulty in having good housing conditions is one of the factors that undermine the stability of the migrant family.[2]

Clearly, the Convention seeks to safeguard migrant workers, including those in an irregular situation or who are currently without a remunerated activity, from exploitation. Of course, it also reiterates the duty of all migrants workers and members of their families to comply with the laws and regulations of any State of transit and the State of employment, and to respect the cultural identity of the people in those States (See Part III, Art. 34). 

Regarding inter-State cooperation, the Convention recognizes the importance that States of origin, transit and employment work together for the promotion of favorable conditions of international migration for migrant workers and members of their families. It thus encourages them to make their legislation harmonious with accepted international standards. Such cooperation will be important in preventing and eliminating illegal or clandestine movements that often accompany trafficking of human beings. (See Part VI.)

2. The Signatories

The first three countries that ratified or acceded to the Convention were African countries: Egypt, Morocco and Seychelles, in that order (See Table I). So far, State Parties are made up of eight African countries, seven Latin American countries, four Asian countries and one European country (Bosnia and Herzegovina).

It is not difficult to observe that among the States that have adopted the Convention, practically none is an industrialized country. Conspicuously absent are Australia and New Zealand, the United States of America and Canada, the Western European countries and Japan. Not even the tiger economy countries of Asia have adhered to the Convention, nor the oil-producing countries of the Middle East.

Yet, among the continents, Europe has the largest migrant stock in its population (56,100,000 in 2000) and of all countries in the world, the United States of America has the largest international migrant stock (34,988,000 in 2000).[3] Not one of the first twenty countries reported by the United Nations as having the largest international migrant stock in 2000 has acceded to the Convention (See Figure 1), nor any of the countries with the highest percentage of international migrant stock in its population (See Figure 2).

Table 1

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Status Of Ratification^*

¹Afr = Africa; LA = Latin America; As = Asia; Eur = Europe

²Classification by the United Nations Statistics Division, as of March, 2003: TC = Transition Countries (from centrally planned to market economy); DC = Developing Countries; LDC = Least Developed Countries

³Dates refer to date of ratification, unless followed by an “a” which indicates accession  

 ^*Source: Office of the United Nations High Commissioner for Human Rights, Status of Ratification of the Principal International Human Rights Treaties, as of 09 December 2002, except for Guatemala which was announced by United Nations Press Release L/T/4371(19 March 2003).

Conclusion

It is apparently necessary to go on with the precious work of awareness-building regarding the vulnerable situation of migrant workers and the members of their families, and their need for international protection, especially among migrant-receiving countries. 

Common good means the well-being of all men and women, where no one is excluded. In a just world, it is not possible for a few to have enormous wealth while many live in poverty (cf. Rerum Novarum, no. 97), and for well-being to be the privilege of a small group. 

In his encylical letter Centesimus Annus (no. 28), written shortly after the fall of the Wall of Berlin and other similar “walls”, Pope John Paul II addressed an appeal to States, which seems to have been written for today’s world situation: 

“In a sense, for some countries of Europe the real post-war period is just beginning. …. It is right that in the present difficulties the formerly Communist countries should be aided by the united effort of other nations. Obviously they themselves must be the primary agents of their own development, but they must also be given a reasonable opportunity to accomplish this goal, something that cannot happen without the help of other countries. (…)  

“Assistance from other countries, especially the countries of Europe (…) represents a debt in justice. But it also corresponds to the interest and welfare of Europe as a whole, since Europe cannot live in peace if the various conflicts which have arisen as a result of the past are to become more acute because of a situation of economic disorder, spiritual dissatisfaction and desperation.

“This need, however, must not lead to a slackening of efforts to sustain and assist the countries of the Third World, which often suffer even more serious conditions of poverty and want. What is called for is a special effort to mobilize resources, which are not lacking in the world as a whole, for the purpose of economic growth and common development, redefining the priorities and hierarchies of values on the basis of which economic and political choices are made. (…) But it will be necessary above all to abandon a mentality in which the poor-as individuals and as peoples-are considered a burden, as irksome intruders trying to consume what others have produced. The poor ask for the right to share in enjoying material goods and to make good use of their capacity for work, thus creating a world that is more just and prosperous for all. The advancement of the poor constitutes a great opportunity for the moral, cultural and even economic growth of all humanity.” 

“The very nature of common good,” affirms the great encyclical Pacem in Terris (no. 56), “requires that all members of the state be entitled to share in it, although in different ways according to each one's tasks, merits and circumstances.” Thus, “every civil authority must take pains to promote the common good of all, without preference for any single citizen or civic group. (…) Considerations of justice and equity, however, can at times demand that those involved in civil government give more attention to the less fortunate members of the community, since they are less able to defend their rights and to assert their legitimate claims.”

The social encyclical Sollicitudo Rei Socialis warns us: “Today perhaps more than in the past, people are realizing that they are linked together by a common destiny, which is to be constructed together, if catastrophe for all is to be avoided” (no.26). Under the present circumstances, it is wise not to take these words lightly.