Setting Norms in the United Nations System: The Draft Convention on the Protection of the Rights of All Migrant Workers and their Families in Relation to ILO in Standards on Migrant Workers
| Published date | 01 June 1990 |
| DOI | http://doi.org/10.1111/j.1468-2435.1990.tb00141.x |
| Date | 01 June 1990 |
| Author | M. HASENAU |
Setting Norms in the United Nations System:
on
the Protection
of
the Rights
of
All
Migrant Workers and their Families
in Relation to
ILO
in Standards
on
Migrant Workers
\\
The Draft Convention
M. HASENAU*
INTRODUCTION
Characteristic traits of the current development in international treaty law are a
proliferation of instruments, in particular as regards human rights, and a multiplication
of supervisory mechanisms. This tendency requires a reinforced coordination of
norm-making activities in the United Nations system, in addition to adjustments in
questions of programme and budget.
The decentralized structure of the United Nations system incurs the potential danger
of an overlap of standards. Global and comprehensive instruments, such as the
International Covenants, are joined increasingly by subsidiary standards. Concrete
obligations, as they result from instruments of the Specialized Agencies concerned with
clearly defined subject matters, may be eroded by United Nations standards, e.g. the
instruments
on
the elimination of discrimination against women and
on
the rights of the
child, which are drafted in rather general terms and leave the implementation largely
to
national discretion'. Furthermore, regional standards are adopted in regional
organizations, such as the Council of Europe's European Convention
on
the Legal Status
of Migrant Workers. This process leads to differences in the nature and scope of
obligations resulting from
norms
which cover the same set of circumstances. As regards
similar provisions, there arise differences in the interpretation and the supervision of the
application administered by distinct supervisory
organs2.
Finally, this proliferation of
instruments may impair the effectivity
of
the implementation of standards. The
normative activities particularly of the Specialized Agencies have led to the creation of a
*
International
Labour
Office, Geneva (Switzerland). The author
would
like to thank Roger
Bohning for his critical remarks on earlier versions of this paper.
133
comprehensive body of standards in their actual field of competence. The tradition of
such a body facilitates the consideration of its norms in national legislation.
Communication with few partners in the United Nations system favours the work of
governments
as
regards the ratification and application of standards3
Manifold attempts to coordinate the normative activities have been undertaken in the
last years4, while the States’ consciousness grew in view of rising resource problems and
their increased reporting burden5. A catalogue of certain fundamental demands has been
stipulated constantly. The elaboration and adoption of standards should be effected
under the responsibility of the most competent organization. The revision and
completion of instruments should take place in the technical and organisational frame in
which these instruments have been adopted initially. An overlap of standards should be
avoided by applying certain drafting techniques, such as cross references and saving
clauses. The interpretation of norms and the supervision of their application should be
centralized under the responsibility of the most competent organization.
The United Nations Convention on the rights of
all
migrant workers and their families
is worth examining as a recent example of the degree and the functional value of this
coordination. In December 1979, the General Assembly adopted a resolution entitled
“Measures to improve the situation and ensure the human rights and dignity of all
migrant workers” in which it decided
-
“bearing in mind the international instruments
elaborated by the International Labour Organization
...”
-
to create a working group to
elaborate an international convention on the protection of the rights
of
all migrant
workers and their families6. In response to this resolution, the Governing Body of the
ILO “pointed out that the ILOs constitutional mandate had from the start included the
protection of the interests of workers when employed in countries other than their
own
...”
and “...suggested that, with a view to concentration of resources and the
avoidance of duplication or conflict, it would be preferable for standard-setting for the
protection of migrant workers
to
continue to be entrusted
to
the ILO, as the agency with
specific constitutional responsibility for this question, in collaboration, where
appropriate, with other organizations concerned”’.
The draft Convention* formulates now in Part
111
(Art. 8-35)9 the rights
of
all migrant
workers and members of their families irrespective of their authorization to enter, to stay
and to engage in a remunerated activity in the State of employment. Part IV (Art. 36-56)
contains the additional rights
of
documented and regular migrant workers and family
members,
i.
e. of those who comply with the conditions of their authorizations. The rights
of particular categories of migrant workers, e.g. seasonal or frontier workers, and
members of their families, are dealt with in Part V (Art. 57-63). The promotion of sound,
equitable, humane and lawful conditions in connection with international migration of
workers and their families is covered under Part VI (Art. 64-71). Finally, Part VII (Art.
72-78) regulates the application and supervision of the convention.
The draft Convention covers a set of circumstances which is the subject of several
conventions and recommendations elaborated and adopted by the International Labour
Organization. In particular, the Migration
for
Employment Convention (Revised), 1949
(No. 97) and Part I1 of the Migration for Employment (Supplementary Provisions)
Convention, 1975 (No. 143), together with the supplementary Migration for
Employment Recommendation (Revised), 1949
(No.
86) and Migrant Workers
Recommendation, 1975
(No.
151) provide for the rights of regular or documented
migrant workers and their families, while Part
I
of Convention No. 143 additionally
contains the rights of illegal migrant workers. Moreover, the majority of existing
international labour standards is applicable to migrant workers, irrespective of
nationality and irrespective of compliance with authorizations.
134
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