UN Human Rights Treaties

A/C.3/40/WG.1/CRP.3 3 June 1985 ORIGINAL: ENGLISH Fortieth session THIRD COMMITTEE Working Group I Agenda item 12 REPORT OF THE ECONOMIC AND SOCIAL COUNCIL MEASURES TO IMPROVE THE SITUATION AND ENSURE THE HUMAN RIGHTS AND DIGNITY OF ALL MIGRANT WORKERS Draft International Convention on the Protection of the Rights of All Migrant Workers and Their Families Cross-references in the draft International Convention on the Protection of the Rights of All Migrant Workers and Their Families Introduction 1. The purpose of the present survey is to review all the cross-references made in the articles of the operative part of the Convention, as they stand after the first reading exercise. In the course of this review, it may be observed that article 2 containing the definition of migrant workers is implicitly referred to in some articles, while it is explicitly mentioned in other articles. Such explicit reference to the effect that the provisions of article 2 apply to migrant workers as defined in article 2 may not be necessary since it is understood that the provisions of the Convention are applicable only to those migrant workers defined under article 2. Part I: Scope and definitions Article 3 2. Article 3 of the Convention deals with the definition of the term "members of the family" and implicitly refers to article 2 (paras. 1 and 2) as the members of the family or dependants of the worker concerned are persons defined in article 2 as migrant workers including frontier workers, seafarers, fishermen (when they are 85-16277 1980h (E) /... engaged in work in one State but retain their permanent residence in a neighbouring State to which they normally return) . The concept also includes family members of seasonal workers (when they are employed or engaged in work dependent on seasonal conditions in a State of which they are not nationals); itinerant workers (when they have their permanent residence in one State and have to perform their occupation in another State for a short period); and project-tied workers (when they have been admitted to the State of employment for a period of time for a specific project). Article 4 3. Article 4 also implicitly refers to article 2, paragraphs 1 and 2, and article 3. Under article 4, migrant workers are as considered documented or in a regular situation [lawful status] if they have been granted the requisite permanent or temporary authorizations in respect of admission for employment. While non-documented migrant workers or those in an irregular situation are defined as those who have not been granted the authorizations required by law in respect of admission for employment of the State in whose territory they are, or those who have failed to comply with the conditions to which their admission is subject, it appears that the provisions of article 4 refer to migrant workers and specific categories of workers (frontier workers, seasonal workers, seafarers, fishermen, workers on offshore installations, itinerant workers, project-tied workers) defined under article 2, paragraphs 1 and 2. Article 6: Definitions of the terms "State of origin", "State of employment", "State of return" and "State of transit" 4. Article 6 of the Convention also implicitly refers to article 2, paragraphs 1 and 2, inasmuch as the terms "State of origin", "State of employment" and "State of return" apply only to migrant workers as defined in article 2 and to other categories of workers (frontier workers, seasonal workers, seafarers, fishermen, workers on offshore installations, itinerant workers and project-tied workers) as laid down in paragraph 2 of article 2. Part II: Fundamental human rights of all migrant workers and members of their families 5. From the foregoing it should be noted that, whenever the term "migrant workers" appears in the following articles it exclusively concerns those migrant workers or specific categories of workers set out in article 2, paragraphs 1 and 2. 6. As stated above, implicit references to article 2, paragraphs 1 and 2, and article 3 (definition of the term "members of the family") are also made in various other articles of the Convention, including article 7 (undertaking of each State Party to respect and ensure the application of the rights recognized in part II of the Convention); article 8 (freedom of movement); article 9 (right to life); article 10 (prohibition of torture, or cruel, inhuman or degrading treatment or punishment); and article 11 (prohibition of slavery, forced or compulsory labour (save in States where imprisonment with hard labour may be imposed as a punishment for a crime)). Part III: Additional rights of migrant workers and members of their families in a [regular situation] [lawful status] Article 44 7. The alternative proposal for article 44 (dealing with eauality of treatment with nationals of the State of employment in access to educational facilities and institutions, vocational guidance and training, access to housing, social and health services, exercise of the right of freedom of association and participation in cultural life) specifically refers to article 52, paragraph 2 (a) which reads as follows: Article 52 "(2) States of employment may: "(1) A State of employment may: "(a) Restrict access by migrant "(a) Restrict access by migrant workers to limited categories of workers to certain categories of employment, functions, services or employment and certain geographical activities where this is necessary in regions where this is provided by the interests of the State?" national laws and regulations;" Article 50 (paragraph 2) 8. In paragraph 2 of article 50, reference is made to article 37. That paragraph stipulates: "(2) [In States of employment where migrant workers are free to choose any type of employment for any employer] without prejudice to article 37 of the present Convention, migrant workers shall neither be regarded as in an irregular situation, nor shall they lose their authorization of residence, by the mere fact of the loss of employment [or the termination of their economic activity] prior to the expiry of their working permits or similar authorizations." 9. Article 37 provides: "Article 37 "[Each State Party to the "[Nothing in the present present Convention shall be free to Convention shall affect the right of establish in its national legislation each State Party to establish in its the criteria governing admission, national legislation the legal duration of stay, type of employment criteria governing the admission, [or other economic activity] of duration of stay, type of employment migrant workers and members of their or other economic activity and all families and to decide in each case other matters relating to the whether to grant any such immigration and employment status of authorization, subject to no migrant workers and members of their limitations other than those provided families] [subject to such limitations for in this Convention. Any as imposed on it by this Convention or conditions subject to which the other rules of international law.]]" admission, stay, [and] employment [or other economic activity] of migrant employment for other economic activity] of migrant workers and members of their families is authorized shall not be such as to impair, nor be applied so as to impair, the rights and guarantees provided for in this Convention.]" 10. Article 51 The same reference to article 37 is made in article 51 which states that: "Article 51 "[(1) Without prejudice to "[(1) In States of employment article 37 of the present Convention, where migrant workers are admitted for loss of employment shall not in an indefinite period of time and are itself imply the withdrawal of the free to choose any type of employment authorization to work. for any employer, loss of employment shall not in itself imply the withdrawal of the authorization to work without prejudice to article 37 of the present Convention.] "(2) Migrant workers shall accordingly enjoy eauality of treatment with nationals, particularly in respect of guarantees of security of employment, the provision of alternative employment, relief work and retraining during the remaining period of their authorization to work.]" Article 53 11. A reference to article 52 (dealing with the right of free choice of employment and its limitations) is made in paragraph 1 of article 53 which reads: "Article 53 "[(1) The spouse and children "[(1) If specifically authorized of a migrant worker whose by the State of employment, the spouse authorization of residence or and children of a migrant worker admission is without limit of time lawfully present in the State of shall be permitted free choice of employment shall be permitted to employment [or other economic • engage in employment;" activity] under the same conditions as are applicable to the migrant worker in accordance with article 52." 12. The full text of article 52 reads: "Article 52 "(1) States of employment shall "[In States of employment whose permit migrant workers in a [regular laws and regulations provide that situation] [lawful status] freely to migrant workers lawfully present may choose their employment [or other freely choose their employer or economic activity], subject only to employment after a certain period of such restrictions or conditions as lawful employment, only the are authorized by the following restrictions or conditions set forth paragraphs of this article. in the following paragraphs of this article shall be applicable: "(2) States of employment mays "(1) A state of employment may: "(a) Restrict access by migrant n(a) Restrict access by migrant workers to limited categories of workers to certain categories of employment, functions, services or employment and certain geographical activities where this is necessary in regions where this is provided by the interests of the State; national laws and regulations; "(b) Restrict free choice of "(b) Restrict free choice of employment [or other economic employment in accordance with its laws activity] in accordance with and regulations concerning recognition regulations governing the conditions of occupational Qualifications of recognition of occupational acauired outside its territory. A qualifications acquired outside its State Party shall endeavour to provide territory. A State Party shall for recognition of such endeavour to provide for recognition qualifications, wherever possible; of such qualifications, wherever possible} "(c) Determine the conditions "(c) Determine the conditions under which a migrant worker who has under which a migrant worker who has been admitted to take up employment been admitted to take up employment may be authorized to engage in work may be authorized to engage in work on on his own account and vice versa. his own account and vice versa. In In this connection, account shall be this connection, account shall be taken of the period during which the taken of the period during which the worker has already been employed or worker has already been employed or engaged in work on his own account. engaged to work on his own account. "(3) In the case of migrant "(2) In the case of migrant workers in a [regular situation] workers lawfully in the territory of a [lawful status] whose permission to State or employment whose permission work is limited in time, States of to work is limited in time, a State of employment may also: employment may in addition to the provisions of paragraph one: "(a) Make the right of free "(a) Make the right of free choice of employment [or other choice of employment and employer economic activity] subject to the subject to the condition that the condition that the migrant worker has migrant worker has lawfully worked in lawfully worked in its territory for its territory continuously for a a continuous period not exceeding two prescribed periody years; "(b) Limit access by a migrant "(b) Limit access by a migrant worker to employment [or other worker to employment in pursuance of a economic activity] in pursuance of a policy of granting priority to workers policy of granting priority to who are its nationals or who are workers who are its nationals or who assimilated to its nationals for these are assimilated to its nationals for purposes by virtue of legislation or these purposes by virtue of bilateral or multilateral agreements. legislation or bilateral or Any such limitation shall cease to multilateral agreements. Any such apply to a migrant worker who has limitation shall cease to apply to a lawfully worked continuously for a migrant worker who has lawfully prescribed period; worked for a continuous period exceeding five years; "(c) If the State of employment "(c) If the State of employment is a developing country, impose such is a developing country, impose such restrictions as may be called for by restrictions as may be called for by a a policy aimed at meeting policy aimed at meeting requirements requirements for qualified manpower for qualified manpower with its own with its own nationals.]" nationals.]" 13. In paragraph 2 of article 53 reference is made to article 45 which recognizes the right of migrant workers to be accompanied or joined by their spouses and minor dependants, unmarried sons and daughters, subject to [procedures prescribed by] the national legislation of the State of employment. Paragraph 2 of article 53 reads: "(2) In respect of the spouse "(2) In respect of the spouse and children of any migrant worker and children of any migrant worker admitted in accordance with admitted in accordance with article 45, the States Parties to the article 45, the States Parties to the present Convention shall pursue a present Convention shall, subject to policy aimed at granting priority in national laws and regulations and respect of employment] [or other applicable bilateral and multilateral economic activity] over other workers agreements, consider granting priority who seek admission to the receiving in respect of employment over other country.]" workers who seek admission to the State of employment.]" 14. The full text of article 45 stipulates: "Article 45 "(1) State Parties to the present Convention [, recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State,] shall take appropriate measures to ensure the protection of the unity of families of migrant workers in a [regular situation] [lawful status], equal to that given to nationals. "(2) Spouses and minor dependent unmarried sons and daughters [of migrant workers] shall be authorized to accompany or join migrant workers and to stay in the State of employment for a duration not less than that of the worker, subject to [procedures prescribed by] the [national] legislation of the State of employment or [applicable] international agreements. States of employment may make this authorization subject to the condition that the migrant worker has available appropriate accommodation and resources to meet the needs of the persons concerned. The process of verifying that such conditions are met shall be completed within a reasonable period. "(3) States of employment shall [favourably] consider the admission of other [dependent] family members on humanitarian grounds." Article 54 15. In the chapeau of article 54 (on eauality of treatment with nationals of the receiving State in respect of security of employment) an explicit reference is made to article 2, paragraph 1, concerning the definition of migrant workers. However, it may be noted that once a definition of the term "migrant workers" has been agreed upon, it may not be necessary to specify that the provisions of the article concerned apply to the migrant workers as defined in article 2 since the provisions of the whole Convention would apply exclusively to those migrant workers and the categories of workers considered migrant workers as set out in article 2, paragraphs 1 and 2. Further, a reference to articles 25 and 44 is also made in the chapeau of article 54, to the effect that, in addition to the rights provided for in articles 25 and 44> migrant workers shall enjoy equality of treatment with nationals of the State of employment as regards security of employment and access to relief work organized by public authority. In this context, article 25 stipulates: "Article 25 "(1) All migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the receiving State in respect of remuneration and: "(a) Other conditions of work, that is to say overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national laws or practice, are covered by this term; " (b) Other terms of employment, that is to say minimum age of employment, restriction on home work and any other matter which, according to national laws and practice, are considered a term of employment. "(2) It shall not be lawful to derogate from the principle of equality of treatment referred to in paragraph 1 above. "(3) The States parties to the present Convention shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. in particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner, by reason of any such irregularity." 16. Further, article 44 provides: "Article 44 "[(1) Migrant workers in a "[(1) Migrant workers in a [regular situation] [lawful status] [regular situation] [lawful status] shall enjoy equality of treatment shall enjoy [equality of treatment with nationals of the State of with nationals of the State of employment, subject to no limitations employment] [subject to the national other than those provided for in the legislation [on of the State of present Convention, in respect of employment] [subject to no limitations other than those provided for in the present Convention], [in particular in article 51, para. 2 (a)] in respect of "(a) Access to educational "(a) Access to educational facilities and institutions} facilities and institutions, subject to the admission requirements and other regulations of the facilities and institutions concerned; "(b) Access to vocational "(b) Access to vocational guidance and placement services; guidance and placement services, subject to the resources of the State of employment; "(c) Access to vocational "(c) Access to vocational training and retraining faciities and training and retraining facilities and institutions; institutions, subject to the resources of the State of employment; "(d) Access to housing, "(d) Access to housing, [including social housing schemes,] [including social housing schemes,] and protection against exploitation and protection against exploitation in in respect of rents; respect of rents; "(e) Access to social and "(e) [Access to social and health services, [provided that the health services, [provided that the requirements for participation by requirements for participation in nationals in schemes of the State of schemes of the State of employment are employment are met;] met; ] "(f) The exercise of trade "(f) The exercise of the right union rights, including elegibility of freedom of association with others; for office in trade unions, in bodies of an occupational, economic and social character, and in labour- manaqement relations bodies, including bodies representing workers in undertakings; "(g) Access to co-operatives "(g) Access to and participation and self-managed enterprises; in cultural life. " (h) Access to and participation in cultural life. "(2) States Parties to the "(2) States Parties to the present Convention shall promote present Convention shall endeavour to conditions to ensure effective facilitate effective equality of equality of treatment to enable treatment to enable migrant workers in migrant workers to enjoy the above- a lawful status to enjoy the above- mentioned rights whenever the terms mentioned rights subject to the terms of their stay, as authorized by the of their stay under the national State of employment, meet the legislation of the State of employment appropriate reauirements.]" [including opportunities for advancement] [wherever the terms of their stay, as authorized by the State of employment, meet the appropriate requirements.]]" 17. There is another reference to article 52 in subparagraph (c) of article 54 with respect to the provision of alternative employment in the event of loss of work, subject to any conditions or restrictions imposed in pursuance of article 52; in that event migrant workers shall be given priority over other workers who seek admission to the State of employment. Article 55 18. In this article, which provides for migrant workers equality of treatment with nationals of the State of employment in the exercise of their occupation or profession, an explicit reference is made to article 2, paragraph 1 (b). As in article 54, this reference (which should be to article 2, paragraph 1, seems to be redundant since whenever the term migrant workers appears in any article it is understood that it concerns only those defined in article 2. Part IV: Provisions applicable to particular categories of migrant workers and members of their families 19. In this part of the Convention concerning the particular categories of migrant workers and members of their families, a cross-reference is made to the corresponding definition for each specific categories in article 2, paragraph 2. Article 58. Frontier workers 20. In this article it is specified that all the provisions of parts II and III of the Convention would be applicable to frontier workers who meet the criteria contained in article 2, paragraph 2 (a) with the exception of those rights arising out of article 45 which stipulates that States Parties shall take appropriate measures to ensure the protection of the family and which recognized the right of migrant workers to be accompanied or joined by their spouses and family (for the full text of art. 45, see para. 14 above). Article 59. Seasonal workers 21. This article recognizes the application of all the rights provided in parts II and III of the Convention to seasonal workers as defined in article 2, paragraph 2 (b). A reference to article 52 is made in paragraph 2, the article which states that: "[(2) A seasonal worker who, not counting seasonal interruptions, has been lawfully employed or working in the State of employment for an aggregate period of 24 months whall be entitled to take up other employment [or economic activity] subject to any conditions or limitations imposed in accordance with article 52." Thus, under article 52 the State of employment may restrict access by seasonal workers to limited categories of employment* restrict their free choice of employment; and determine the conditions under which a seasonal worker who has been admitted to take up employment may be engaged to take up work on his own account and vice versa. The State of employment may also make the right of free choice of employment subject to the condition that the seasonal worker has lawfully worked in its territory for a continuous period not exceeding two years. The State may also limit access by a seasonal worker to employment in pursuance of a policy of granting priority to workers who are its nationals or who are assimilated to its nationals by virtue of legislation. However, it should be noted that any such limitation would cease to apply to a seasonal worker when he has lawfully worked for a continuous period exceeding five years. 22. In the case when the State of employment is a developing country, such State may impose such restrictions as may be called for by a policy aimed at meeting requirements for qualified manpower with its own nationals (for the full text of art. 52, see para. 12 above). Article 60. Seafarers and workers on offshore installations 23. In this article there is, in paragraph 1, an explicit reference to article 2, paragraphs 2 (c) and 2 (d), regarding the definition of the terms "seafarers" and "workers" on offshore installations. Further, in paragraph 1 (b) of article 60, reference is made to article 45, to the effect that if the seafarers or workers on offshore installations have not been authorized to take up residence in the State of employment, they shall be entitled to all rights in parts II and III of the Convention by reason of their presence or work in the State of employment, with the exception of those rights relating to or arising out of residence and rights arising out of article 45 concerning family reunion and the rights of the workers to be joined by the members of their families. Article 61. Itinerant workers 24. In this article, there is a reference to the definition of itinerant workers in article 2, paragraph 2 (e). Moreover, it is stated in article 61 that all the provisions of parts II and III will be applicable to this category of workers with the exception of the provisions of article 45 on the right to family reunion and the right to be joined by members of their families. Article 62. Project-tied workers 25. An explicit reference to article 2, paragraph 2 (f), concerning the definition of the term "project-tied workers" is made in paragraph 1 of this article. 26. In paragraph 1 (b) of article 62 references are made to articles 44, paragraph 1 (b) and (c) (on access to vocational guidance and placement services) access to vocational training and retraining facilities and institutions); and article 46 (b) (on access to vocational guidance and training facilities and institutions), stipulating that these provisions would not be applicable to project-tied workers. The provisions of article 53, 54 and 55, which would not be applicable to project-tied workers, are reproduced below. "Article 53 "[(1) The spouse and children "[(1) If specifically authorized of a migrant worker whose by the State of employment, the spouse authorization of residence or and children of a migrant worker admission is without limit of time lawfully present in the State of shall be permitted free choice of employment shall be permitted to employment [or other economic engage in employment; activity] under the same conditions as are applicable to the migrant worker in accordance with article 52. "(2) In respect of the spouse "(2) In respect of the spouse and children of any migrant worker and children of any migrant worker admitted in accordance with article admitted in accordance with 45, the States Parties to the present article 45, the States Parties to the Convention shall pursue a policy present Convention shall, subject to aimed at granting priority in respect national laws and regulations and of employment] [or other economic applicable bilateral and multilateral activity] over other workers who seek agreements, consider granting priority admission to the receiving country.] in respect of employment over other workers who seek admission to the State of employment.] Article 54 "[Without prejudice to the terms of their authorization of residence, migrant workers as defined in Article 2 (1) (a) who are [in a regular situation] [lawful status] shall, in addition to the rights provided for in articles 25 and 44, enjoy equality of treatment with nationals of the receiving State in respect of "(a) Security of employment; "(b) Access to relief work organized by a public authority; "(c) Subject to any conditions or restrictions imposed in pursuance of Article 52, the provision of alternative employment in the event of loss of work; in that event they shall be given priority over other workers who seek admission to the receiving country.] Article 55 "[Migrant workers as defined in "[Migrant workers as defined in article 2 (1) (b) who are [a regular article 2 (1) (b), who are in a situation] [lawful status] shall be regular situation, shall be entitled entitled to equality of treatment to equality of treatment with with nationals of the State of nationals of the State of employment employment in the exercise of their in the exercise of their occupation or occupation or profession.]" profession, except as provided otherwise by the laws and regulations of the State of employment.]" 27. Further in paragraph 4 (b) of article 62, it is provided that States concerned should take appropriate measures to ensure that project-tied workers, in addition to the provisions of article 49, do not suffer from double taxation. Article 49 stipulates: "Article 49 "Subject to agreements on double taxation, migrant workers and members of their families shall not be liable to taxes, duties or charges of any description whatsoever higher or more onerous than those imposed on nationals in similar circumstances. [They shall be entitled, under conditions no less favourable than those applicable to nationals, to deductions or exemptions from taxes or charges and to all allowances, including allowances for dependants.]" Part V: Promotion of sound, equitable and humane conditions in connection with lawful international migration of workers and their families Article 63 28. A reference to article 37 is made in article 63 to the effect that, without prejudice to the provisions of article 37 concerning the freedom of each State to determine the criteria for authorizing the admission, duration of stay, [type or choice of] employment of migrant workers and members of their families, the States of employment shall consult and co-operate with other States concerned with a view to promoting sound, equitable and humane conditions in connection with lawful international migration of workers and their families. Part VI: Application of the Convention Article 72 29. In paragraph 1 bis, (b) of this article, it is provided that the Committee on the Protection of the Rights of all Migrant Workers and Their Families shall receive and consider the technical opinion and commentaries transmitted to it by the Director-General of the International Labour Office which may be relevant to matters covered in articles 7, 11, 25, 26, 27, 28, 32 and 33 of part II, in part III, in part V and in part VII of the Convention (for the full texts of those articles, see document A/C.3/39/WG.1/WP.1). Article 73 30. Under paragraph 3 of this article, it is stated that the Committee shall meet annually in order to consider the reports submitted under article 72. Part VIII: Final provisions Article 86 31. in this article references are made to articles 52, 53, 54, 55 and 56 to the effect that at the time of signature, ratification, acceptance, approval or accession, any State may declare that it shall apply those articles only in relation to nationals of other States parties (for the texts of those articles, see paras. 12 and 26 above). Article 90 32. In this article, reference is made to article 83 (entry into force of the Convention) to the effect that the Secretary-General of the United Nations shall notify all States which have signed, ratified, accepted, approved the Convention or acceded thereto of any date of entry into force of the Convention in accordance with article 83. Article 91 33. Under paragraph 2 of article 91 it is provided that the Secretary-General shall transmit certified copies of the Convention to all the States referred to in article 82 on the opening of the Convention for signature, ratification, acceptance or approval and the deposit of the instruments concerned. Check-list of cross references Article 3 of art. 2 (paras. 1 and 2) Article 4 of art. 2 (paras. 1 and 2) and art. 3 Article 6 of art. 2 (paras. 1 and 2) Article 44 of art. 52 (para. 2 (a)) Article 50 (para. 2) of art. 37 Article 51 of art. 37 Article 53 {para. 1) of art. 52 Article 53 (para. 2) of art. 45 Article 54 (chapeau) of art. 2 (1) and (2); art. 25 and art. 44. Article 54 (c) of art. 52 Article 55 of art. 2 (1) (b) Article 58 of art. 2 (2) (a) Article 59 of art. 2 (2) (b) and art. 52 Article 60 of art. 2 (2) (c); art. 2 (2) (d) and art. 45 Article 61 of art. 2 (2) (e) and art. 45 Article 62 of art. 2 (2) (b); art. 44 (1) (b) and (c); art. 46 (b), arts. 53, 54, 55 and 49 Article 63 of art. 37 Article 72 of art. 7, 11, 25, 26, 27, 28, 32 and 33.