The protection of migrant workers and international labour standards

International labor standards take the form of Conventions and Recommendations that embody the agreements reached by a 2/3 majority of the representatives of Governments, Employers, and Workers of International Labour Office (ILO) member states. Originally designed to guard against the danger that 1 country or other would keep down wages and working conditions to gain competitive advantage and thereby undermine advances elsewhere, international labor standards have also been inspired by humanitarian concerns--the visible plight of workers and the physical dangers of industrialization and by the notion of social justice, which embraces wellbeing and dignity, security, and equality as well as a measure of participation in economic and social matters. ILO standards apply to workers generally and therefore also to migrant workers, irrespective of the fact that the general standards are complemented by standards especially for migrant workers. The social security protection of migrant workers has been dealt with in ILO instruments primarily from the angle of equality of treatment but also from that of the maintenance of acquired rights and rights in course of acquisition, including the payment of benefits to entitled persons resident abroad. The ILO Conventions on migrant workers and the Recommendations which supplement them deal with practically all aspects of the work and life of non-nationals such as recruitment matters, information to be made available, contract conditions, medical examination and attention, customs, exemption for personal effects, assistance in settling into their new environment, vocational training, promotion at work, job security and alternative employment, liberty of movement, participation in the cultural life of the state as well as maintenance of their own culture, transfer of earnings and savings, family reunification and visits, appeal against unjustified termination of employment or expulsion, and return assistance. ILO's supervisory mechanism consists basically of a dialogue between the ILO and the Government that is responsible for a law, regulation, or practice alleged to be in contravention of principles it voluntarily accepted. The control machinery is often set in motion by workers' organizations. The UN General Assembly is currently elaborating a new instrument designed to cover both regular and irregular migrant workers and their families.     

From Geneva to San José: The ILO standards and the Inter-American System for the protection of human rights

This article analyses how the Inter-American System for the protection of human rights has used ILO standards as a reference on matters relating to freedom of association and the rights of indigenous peoples. Having established the limits to their use, the authors also analyse how these standards have influenced recent Inter-American jurisprudence in relation to certain economic, social and cultural rights. They argue that such cross-referencing is both desirable and useful, since it allows the Inter-American bodies to base their arguments on the interpretation of specialized authorities, thereby reinforcing the credibility, normative legitimacy and universality of their decisions.     

Safety and health at work as fundamental rights: A comparative-historical study of the ILO's strategy of realistic vigilance

This article is a comparative-historical study of ILO action on occupational safety and health (OSH) as fundamental rights. In the two decades following the adoption of the International Covenant on Economic, Social and Cultural Rights, the ILO used a realist lens and prioritized the idea that OSH were dependent upon economic preconditions for their protection. This history is revisited in the light of the new complex of global health uncertainty and the addition of OSH to the framework of fundamental principles and rights at work. The analysis highlights the applicability of a realistic vigilance approach to the ILO's current work on OSH.     

Human Rights of Migrants: Challenges of the New Decade

This review summarizes main trends, issues, debates, actors and initiatives regarding recognition and extension of protection of the human rights of migrants. Its premise is that the rule of law and universal notions of human rights are essential foundations for democratic society and social peace. Evidence demonstrates that violations of migrants' human rights are so widespread and commonplace that they are a defining feature of international migration today. About 150 million persons live outside their countries; in many States, legal application of human rights norms to non‐citizens is inadequate or seriously deficient, especially regarding irregular migrants. Extensive hostility against, abuse of and violence towards migrants and other non‐nationals has become much more visible worldwide in recent years. Research, documentation and analysis of the character and extent of problems and of effective remedies remain minimal. Resistance to recognition of migrants' rights is bound up in exploitation of migrants in marginal, low status, inadequately regulated or illegal sectors of economic activity. Unauthorized migrants are often treated as a reserve of flexible labour, outside the protection of labour safety, health, minimum wage and other standards, and easily deportable. Evidence on globalization points to worsening migration pressures in many parts of the world. Processes integral to globalization have intensified disruptive effects of modernization and capitalist development, contributing to economic insecurity and displacement for many. Extension of principles in the Universal Declaration of Human Rights culminated in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. With little attention, progress in ratifications was very slow until two years ago. A global campaign revived attention; entry into force is likely in 2001. Comparative analysis notes that ILO migrant worker Conventions have generally achieved objectives but States have resisted adoption of any standards on treatment of non‐nationals. A counter‐offensive against human rights as universal, indivisible and inalienable underlies resistance to extension of human rights protection to migrants. A parallel trend is deliberate association of migration and migrants with criminality. Trafficking has emerged as a global theme contextualizing migration in a framework of combatting organized crime and criminality, subordinating human rights protections to control and anti‐crime measures. Intergovernmental cooperation on migration “management” is expanding rapidly, with functioning regional intergovernmental consultative processes in all regions, generally focused on strengthening inter‐state cooperation in controlling and preventing irregular migration through improved border controls, information sharing, return agreements and other measures. Efforts to defend human rights of migrants and combat xenophobia remain fragmented, limited in impact and starved of resources. Nonetheless, NGOs in all regions provide orientation, services and assistance to migrants, public education and advocating respect for migrants rights and dignity. Several international initiatives now highlight migrant protection concerns, notably the UN Special Rapporteur on Human Rights of Migrants, the Global Campaign promoting the 1990 UN Convention, UN General Assembly proclamation of International Migrants Day, the 2001 World Conference Against Racism and Xenophobia, anti‐discrimination activity by ILO, and training by IOM. Suggestions to governments emphasize the need to define comprehensive, coordinated migration policy and practice based on economic, social and development concerns rather than reactive control measures to ensure beneficial migration, social harmony, and dignified treatment of nationals and non‐nationals. NGOs, businesses, trade unions, and religious groups are urged to advocate respect for international standards, professionalize services and capacities, take leadership in opposing xenophobic behaviour, and join international initiatives. Need for increased attention to migrants rights initiatives and inter‐agency cooperation by international organizations is also noted.     

Ethics,national sovereignty and the control of immigration

"This paper examines the debate as to whether migration is a basic human right or if the claims of outsiders are superseded by the principle of national sovereignty--the moral obligation of states to do the best for their own citizens. In evaluating migration and refugees it focuses on issues of open borders, migration selectivity, the capacity of sovereign states to control entry, the claims of refugees, the relationship between sovereignty and justifiable intervention, and the role of public opinion and morals throughout migration policies."     

Books Reviews

Book reviewed in this article: Labour market and social protection reforms in international perspective: Parallel or converging tracks? Labour market planning revisited Recent books: Benchmarking working Europe 2003 Fragmented futures: New challenges in working life International labour standards: Globalization, trade, and public policy Making human rights work globally Social and labour rights in a global context: International and comparative perspectives Travail et syndicalisme. Naissance et évolution d'une action sociale Work in the new economy: Flexible labor markets in Silicon Valley World report on violence and health New ILO publications: Challenges and opportunities facing public utilities Concepts and strategies for combating social exclusion: An overview Employment stability in an age of flexibility: Evidence from industrialized countries Fundamental rights at work and international labour standards ILO standards‐related activities in the area of occupational safety and health: An in‐depth study for discussion with a view to the elaboration of a plan of action for such activities Jobs and incomes in a globalizing world Labour markets in transition. Balancing flexibility and security in central and eastern Europe Report of the Committee of Experts on the Application of Conventions and Recommendations: General report and observations concerning particular countries Protection of wages: Standards and safeguards relating to the payment of labour remuneration Lists of ratifications by Convention and by country (as of December 2002 Safety and health in the non‐ferrous metals industries Sectoral social dialogue in future EU Member States: The weakest link The employment effects of mergers and acquisitions in commerce The scope of the employment relationship Time for equality at work Working out of poverty     

A New Chilean Migration Act: an Approach to International Standards

The current Chilean Migration Act is the oldest in South America. It was created under the paradigm of national security, not human rights, and today does not adequately serve a participating democratic state, active within the international community. The Chilean government will soon be moving to discuss in congress a new migration act. We want to emphasize that the government should not forget the importance of incorporating international standards of migration policy into the national sphere. Chile is part of the United Nations system and, as a participating member, ratifies all core human rights treaties. Given that the United Nations Human Rights Bodies have made recommendations about migration policy, it is essential that this discussion be brought to the attention of our governing officials. This article reviews the UN recommendations as a concrete approach to the implementation of international standards in Chilean migrant policy.     

International law and human rights: trends concerning international migrants and refugees

Not with standing human rights linkages, migrants and refugees are often on the periphery of effective international protection. State sovereignty and self-regarding notions of community are used to deny or dilute substantive and procedural guarantees. Recently, even non- discrimination as a fundamental principle has been questioned, as has the system of refugee protection. This article located both migrants and refugees squarely within the human rights context, contrasting both inalienable rights with the demands of sovereignty, and juxtaposing the 2 in a context of existing and developing international standards. Migration and refugee flows will go on, and the developed world, in particular, must address the consequences - legal, humanitarian, socioeconomic, and cultural. Racism and institutional denials of basic rights daily challenge the common interest. This article shows how the law must evolve, responding coherently to contemporary problems, if the structure of rights and freedoms is to be maintained.     

The right to stay: challenging the policy of detention and deportation

The aim of this article is to shed light on the situation of refugees (formally designated as asylum seekers) and undocumented migrant workers, who are among the most vulnerable inhabitants of Europe. Both groups face the threat of detention and deportation. The normative framework, which consists of legal standards and residential institutions, will be critically examined. Despite international standards for respecting the human rights of refugees and undocumented workers, policies of detention and deportation and the mass rejection of asylum claims leave little hope for the empowerment, autonomy and social inclusion of these persons. Instead of a straight-forward argument for closing down all detention centres and putting an end to forcible deportations, the article investigates small scale structural possibilities for inclusive – non-selective – responses to these non-citizens.     

International migration and the global agenda: reflections on the 1998 UN Technical Symposium

This article reviews the nature of discussions at the 1998 UN Technical Symposium on International Migration and Development. The Symposium reviewed the literature linking migration and development and successful policy approaches. Several themes emerged. A research framework is needed for accounting for all types of population mobility at all stages of the migratory process. Research should integrate contributions from a range of disciplines. The influence of social networks and cultural capital has grown in importance. Strategies need to account for women's experiences, which involve both empowerment and exploitation. Strategies need to consider return migration and better public information on migration and settlement. It was agreed that there is a need for a variety of quantitative and qualitative approaches and multidimensional analysis. The links between migration and development are complex, but sufficient information is available to greatly improve policy formation and international cooperation. National level responses have occasionally eroded the rights and protection of migrants. Few countries have adopted the 1990 UN Convention on the Rights of Migrant Workers and their Families and ILO Conventions 97 and 143. A prominent realization was that international cooperation did matter. International migration should be viewed as an opportunity for cooperation and development.     

The ILO's Domestic Workers Convention and Recommendation: A window of opportunity for social justice

Domestic workers are a predominantly female workforce whose social and labour rights remained largely unattended for decades. Addressing this has become more urgent, as demand for household and personal care services is increasing. Convention No. 189 and Recommendation No. 201 set out global minimum standards for domestic work. The author first describes international labour and human rights law on domestic work prior to 2011. He then examines the instruments' definitions and scope and problems of particular groups; their provisions on working time, pay, work environment and living conditions; social security; and implementation and enforcement.     

Migrant Rights: International Law and National Action

Migrant rights were put squarely on the agenda of the Global Forum on Migration and Development when it met in Manila in 2008, as the principal theme of the governmental and civil society discussions. The Forum proceeded with the assumption that migrant rights are a development issue, as well as a fundamental human rights issue. This article begins with a review of the normative framework for protecting migrant rights. While norms by themselves will not prevent abuses, they can serve as a basis for advocating implementation of policies and programs to achieve these goals. We argue that there is ample international law setting out the basic rights of migrants even though the principal migrant‐centric instruments are not widely ratified. Failures in protecting migrant rights arise from the lack of implementation of these standards at the national level. The article then discusses a range of programs, mostly implemented by or in destination countries, which hold potential for overcoming barriers to the protection of the rights of migrants. These practical steps can be found in a wide array of countries, most of which have not become party to the Migrant Workers Convention. The article concludes that these initiatives have been implemented in an ad hoc manner, necessitating a more systematic approach at the national level to the protection of migrant rights.     

Individuals as authors of human rights: not only addressees

I propose human rights as self-authored through a personality structure of “assertive selfhood.” To that end I identify three features of self-authorship: emergent through collective political action; as a critical stance; and borne by non-idiosyncratic norms. So conceived, human rights require a field of recognition as a social structure supportive of claims to assertive selfhood. I show that the capacity to self-grant depends critically on the participant’s personality structure as well as on the structure of some of the social institutions he or she inhabits. But like any political vision, the project for self-granted human rights has distinct limits, above all with respect to the many inequalities among potential self-authors.     

Disability rights in practice: the relationship between human rights and social rights in contemporary social care

Using the contemporary arena of social care as an example, this article challenges the either/or dichotomy set up by some disability writers and activists between the favoured civil and human rights on the one hand and discredited social rights on the other. Rather, the article concludes, claims to these differing types of right are mutually reinforcing and can be mobilised strategically in disabled people's struggles for greater social justice. In particular, there is the potential for expanding disabled people's social rights to both direct services and direct payments by enforcing the positive obligations on public authorities conferred by human rights legislation and challenging rationing regimes.     

农村留守儿童平等发展权理论新思考

留守儿童问题从诞生之日起蕴含的实质就是对留守儿童平等发展权赤裸裸的剥夺，破译留守儿童问题的实质就是解决留守儿童平等发展权问题，用“发展权研究范式”取代“问题研究范式”才能跳出既有研究框架的窠臼。以平等发展权的崭新视角审视留守儿童平等发展权尚未厘清的核心理论，集留守儿童主体因素、权利的客体因素、平等发展的内容因素、留守儿童权利体系的地位因素于一体定义留守儿童平等发展权．从人权分析三要素对留守儿童平等发展权的构造进行鼎新阐释，探析留守儿童平等发展权的人权特征及其人权本原，既是发展权理论的丰富、发展和创新，又是严重匮乏的留守儿童平等发展权理论建构的奠基性环节。     

Books Reviews

Book reviewed in this article: Gender, growth and trade: The miracle economies of the postwar years Le travail dans l'histoire de la pensée occidentale New frontiers of democratic participation at work Recent books: Des bancs de l'école aux postes de travail … Chronique d'une ségrégation annoncée Flexibilité et performances. Stratégies d'entreprises, régulations, transformations du travail L'organisation de la production et du travail: vers un nouveau modèle Santé mentale et travail. L'urgence de penser autrement l'organisation New ILO publications: A fair globalization: Creating opportunities for all A fair globalization: The role of the ILO Application of international labour standards, 2004: Report of the Committee of Experts on the Application of Conventions and Recommendations Promoting employment: Policies, skills, enterprises Application of international labour standards, 2004: Information document on ratifications and standards-related activities Best practices in work-flexibility schemes and their impact on the quality of working life in the chemical industries Conditions of work in the fishing sector: A comprehensive standard (a Convention supplemented by a Recommendation) on work in the fishing sector Economic security for a better world Jobs after war: A critical challenge in the peace and reconstruction puzzle Key Indicators of the Labour Market Key Indicators of the Labour Market Organizing for social justice Philosophical and spiritual perspectives on decent work Policies for small enterprises: Creating the right environment for good jobs Preventing and responding to violence at work Record of proceedings Security in ports: ILO and IMO code of practice Social funds: Lessons for a new future Sources and methods: Labour statistics—Companion to the Yearbook of Labour Statistics. Volume 3: Economically active population, employment, unemployment and hours of work (household surveys) Volume 4: Employment, unemployment, wages and hours of work (administrative records and related sources) The global seafarer: Living and working conditions in a globalized industry Towards a fair deal for migrant workers in the global economy Women seafarers: Global employment policies and practices Workplace violence in services sectors and measures to combat this phenomenon: ILO code of practice     

Colonialism,Decolonisation, and the Right to be Human: Britain and the 1951 Geneva Convention on the Status of Refugees

The Geneva Convention on the Status of Refugees is central to scholarship on refugee and asylum issues. It is the primary basis upon which asylum seekers make their claims to the majority of host states today and, as a key text of the human rights framework, has come to be associated with the very idea of a universalised rights-bearing human being. Yet British asylum policy today is characterized by efforts to limit access to the right to asylum. Many scholars believe this is because asylum seekers today are different, in character and number, to previous cohorts of applicants. This article goes back to the founding of the refugee rights regime and investigates the exclusions of colonized peoples from access to the right to asylum. Using Chimni's concept of the “myth of difference”, the article demonstrates that asylum seekers have long existed outside of Europe, and that their exclusion from international rights has been both longstanding and intentional. This historical sociology suggests that the basis for critical work on the issue of asylum policy today must be one which takes colonial histories into account.     

Migration and Human Rights on the Mexico-Guatemala Border

This paper identifies the protections in place for irregular migrants on the Mexico‐Guatemala border and analyzes Mexican government immigration enforcement policies and levels of compliance with international standards and national law. The history of the Mexico‐Guatemala border region and different types of migration flows into and through the area are also explored, as well as the linkages between migration, trade, security, and US immigration policy. It is argued that the Mexican government has partially complied with international conventions and national laws to protect the human rights of transmigrants in the Guatemalan border region, but that compliance is not complete and that an international response is required to ensure that human rights standards are upheld.     

A new route to norms evolution: insights from India’s right to food campaign

For over a decade, activists in India have waged a nationwide Right to Food (RTF) campaign aimed at highlighting persistent undernutrition in their country and galvanizing corresponding legal and administrative reform. This article draws on original interview data to demonstrate the process through which the campaign has forged a new and more robust interpretation of the RTF than that prevailing in international law and practice. It has done so by relying largely on domestic law, institutions, and networks rather than through ‘vernacularization’ of international norms or transnational advocacy. The campaign’s innovative conceptualization of the RTF along with the ongoing challenges it faces in attempting to influence the implementation of that right have broader implications for human rights theory and advocacy beyond India.     

De Jure vs. De Facto Rights: A Response to “Human Rights: What the United States Might Learn from the Rest of the World and,Yes, from American Sociology”

Blau's ( 2016 ) argument for a Constitutional Project implies that changes in the U.S. Constitution would ensure fundamental adherence to human rights standards. We disagree with the assumption that legal and institutional instruments are guarantors of human rights practice. Instead, we see rights practices as the function of power struggles that include but go far beyond formal law. Instead, we emphasize an important distinction between de jure human rights instruments and de facto human rights practice, arguing that the focus on de jure instruments and legal discourse misses the significant effect of social movements and direct action that secure rights practice. De jure instruments may codify human rights and enumerate them as important, but they do not carry the authority of enforcement. We argue that the pursuit of human rights must be reframed to include both de jure and de facto human rights terrains. While charitable provisions from generous states can temporarily relieve specific human rights abuses, universal human rights practice requires establishing the fundamental political primacy of the people through the processes of the human rights enterprise.