Regularising the Irregular
| Published date | 01 April 1983 |
| DOI | http://doi.org/10.1111/j.1468-2435.1983.tb00454.x |
| Author | W.R. Böhning |
| Date | 01 April 1983 |
Regularising the Irregular
BY W.R. BOHNING*
TERMINOLOGICAL INTRODUCTION
The General Conference of the International Labour Organisation in June
1975
adopted
the Migrant Workers (Supplementary Provisions) Convention (No.
143)
which circum-
scribes illegal or clandestine migrations and the illegal employment of migrant workers
as events in which
the migrants are subjected during their journey, on arrival or during their period
of
residence and
employment to conditions contravening relevant international multilateral or bilateral instruments
or agreements, or national laws or regulations (Art.
2(
1)).
Four areas are thus distinguished
-
journey, arrival, residence and employment
-
in
respect of which abuses can occur. The reference to national laws or regulations is ob-
vious. The further reference to international agreements, etc.,
was
apparently intended
to include ratified and binding instruments, but also other instruments the terms of
which, even in the absence of ratification or because they are not capable of ratification,
States agree to respect in practice, such as the Universal Declaration
of
Human Rights
(see
ZLU
1980,
para
188).
The same Convention also uses the terms ‘illegal employ-
ment’ and applies them to
all
forms of illegal employment, not just
to
those in which
the migrant workers are subjected to abusive conditions as defined in Article
2.
Illegal
employment would seem to mean a gainful activity otherwise than in accordance with
the national laws and regulations governing the employment of foreigners
(ZLU,
1980,
para
230).
The General Assembly adopted resolution
3449
(XXX)
in
1975
in which it called
on the UN system to use, in official documents, the term ‘non-documented or irregular
migrant workers to define those workers who illegally or surreptitiously enter another
country to obtain work. This def&hition is restricted to entry (insofar as the purpose of
entry is work, although this specification need not be a hindrance) and qualified by ‘il-
legally’ or ‘surreptitiously’, which makes it unsuitable for general application and gives
the impression that irregularity is invariably the migrant’s fault. The latter is by no
means always the case as will become clear later when the different kinds of irregularity
are considered. Moreoever, the word ‘nondocumented’ introduces a notion which may
be belied by reality: the so-called ‘nondocumented’ migrants often have official papers
*
The views expressed here are the author’s and
not
necessarily those
of
the International Labour
Office. Revised version
of
a paper presented at the VI-ICM-Seminar.
159
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