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Human Rights 1A Atty. J.P.

Dela Pasion

Outline for Group 5 Report


Topic: International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families

I. Background
A. What is the convention’s main topic? / What is its primary objective/goal?
- The main purpose of the Convention is to provide a set of binding international
standards to address the welfare and human rights of both documented and
undocumented migrants, as well as obligations and responsibilities imposed
upon participating State Parties.

B. Why did the United Nations convene for the purpose of creating this convention?
What crises did it aim to mitigate?
- The Convention aims to prevent and eliminate exploitation of migrant workers,
and to end illegal recruitment and trafficking of the same.

C. Who are supposed to benefit?


1. Regular Migrant Workers or documented migrants
2. Irregular Migrant Workers or undocumented/illegal migrants

D. Who is in a better standing to claim/exercise rights provided for by the


Convention?
- While the Convention gives rights to both documented and undocumented
migrant workers, it only accords migrants with civil, social and labor rights.

E. When did it enter into force?


- 01-Jul-03, when Guatemala and El Salvador ratified it, effectively meeting the
number of minimum ratifications to 20.
- 51 States have ratified the Convention, while 16 have signed the Convention
but have yet to ratify it.

II. Highlights of the Convention


A. Definitions
- Migrant worker (Art. 2, 1)
- Categories of migrant workers (Art. 2, 2)
• Frontier worker
• Seasonal worker
• Seafarer
• Worker on an offshore installation
• Itinerant worker
• Project-tied worker
• Specified-employment worker
• Self-employed worker
- Members of their families (Art. 4)
- Documented or in a regular situation (Art. 5a)
- Non-documented or in an irregular situation (Art. 5b)
- State of origin (Art. 6a)
- State of employment (Art. 6b)
- State of transit (Art. 6c)

B. To whom does the convention apply?


- The convention applies to all migrant workers and members of their
families during their entire migration process. (Art. 1)
To whom does the convention not apply?
- The convention does not apply to diplomats and international civil
servants, refugees and stateless persons, students and trainees, and
seafarers and offshore workers who have not been able to take up a
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residence and engage on a remunerated activity in the state of


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employment. (Art. 3)

Mary Kate Shane P. Cizcar Terence Thomas M. Cosare


Immanuel Anthony E. Meru Iana Alyssa F. Soliman
Human Rights 1A Atty. J.P. Dela Pasion

C. What rights are respected? To whom does the Convention apply those rights?
- Human rights of all migrant workers and members of their families (Arts.
8-35)
- Human rights of documented migrant workers and members of their
families (Arts. 36-56)
- Provisions applicable to particular categories of migrant workers and
members of their families (Arts. 57-63)

D. What are the obligations of signatory States?


- Promotion of sound, equitable, humane and lawful conditions in
connection with international migration of workers and members of their
families (Arts. 64-71)

E. What measures are in place to ensure compliance?


- Application of the Convention (Arts. 72-78)

F. General and Final Provisions (Arts. 79-93)

III. Optional Protocols


A. Algeria – made upon accession (21-Apr-05)
1. Art. 92 (1)
- Algeria made a reservation that disputes may be subject to arbitration
only, contrary to Art. 92 (1) which provides that any dispute under this
Convention not settled by negotiation shall be subject to arbitration, upon
request by one of them. If within 6 months the Parties are unable to agree
to the terms of the arbitration, then the dispute may be referred to the
International Court of Justice by request in conformity with the Statute of
the Court.

B. Argentina – made upon ratification (23-Feb-07)


1. Art. 92 (1)
- Argentina declared that it did not consider itself bound by the
aforementioned provision on dispute resolution between State Parties.
o Note: Art. 92 (2) allows a State to make a declaration to consider
itself not bound by (1).

C. Chile – made upon ratification (21-Mar-05)


1. Art. 22 (5)
- Chile made a reservation that (5) should be inapplicable to it. Art. 22 (5)
states that if a decision to expel a migrant worker has already been
executed but subsequently annulled, said worker can demand
compensation, and an earlier decision shall not be used to prevent him/her
from re-entering the State concerned.
2. Art. 48 (2)
- Chile will, in the future, consider that such provision has already been
fulfilled under the terms of other international conventions, either currently
entered by Chile or future conventions, for the purpose of preventing or
avoiding double taxation. So far, no known declaration or reservation has
been made.

D. Colombia – made upon accession (24-May-95)


1. Art. 15, 46, 47
- Colombia made a reservation stating that it shall retain the right to
promulgate taxation and other monetary regulations establishing equality
between its citizens and migrant workers in respect to the import and export
of personal and household effects, as well as the transfer of earnings and
savings abroad.

E. Ecuador – made on 12-Jan-18


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- Ecuador made its declaration of its recognition of the Committee’s authority


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to:
Mary Kate Shane P. Cizcar Terence Thomas M. Cosare
Immanuel Anthony E. Meru Iana Alyssa F. Soliman
Human Rights 1A Atty. J.P. Dela Pasion

1. Art. 76
- Receive and consider communications when a State Party claims that
another State Party is not fulfilling its obligations under the Convention.
2. Art. 77
- Receive and consider communications from or on behalf of individuals
subject to its jurisdiction who claim that their individual rights as established
by the Convention have been violated by that State Party.

F. Egypt – made upon accession (19-Feb-93)


1. Art. 4
- Egypt made a reservation regarding the term “members of the family”, but
made no distinctive changes to the same.
2. Art. 18 (6)
- Egypt declared that a subsequent reversal or pardon on the ground of
newly discovered evidence, said migrant worker shall be entitled to
compensation according to law, unless the non-disclosure of such
evidence is wholly or partly attributable to the same.

G. El Salvador – unless otherwise stated, made upon ratification (14-Mar-03)


1. Art. 32
- Transfers of earnings and savings shall include amounts accumulated
under any retirement social security schemes.
2. Arts. 46, 47, 48, and 61 (4)
- El Salvador declared that tax exemption shall only apply only after any
taxes that the taxable articles might incur have been paid.
- The right of migrant workers to transfer their earnings to their State of origin
may be exercised without restriction, provided that tax obligations have
been fulfilled.
3. Art. 76 & 77 – made on 23-Jan-15
- El Salvador declared that it also recognizes the Committee’s competence
to receive and consider communications regarding violations under the
Convention.
4. Art. 92 (1)
- El Salvador declared that it shall not be bound by the same.

H. Guatemala – made on 11-Sep-07


1. Art. 77
- Declaration made to recognize the competence of the Committee to
receive and examine communications in which one State Party alleges
non-compliance by another State Party, as well as to receive and examine
communications sent by persons subject to the jurisdiction of a State Party,
alleging violation by the same of their individual rights.

I. Mexico
- A declaration was made asserting that the Convention’s provisions shall be
applied in accordance with domestic law.
1. Art. 26 (1) – made in relation to Venezuela’s declaration, made on 26-Oct-
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- Mexico made a reservation stating that Venezuela’s declaration that Art.
26 (1) applies exclusive to migrant workers only is contrary to the
Convention’s tenor that it should apply to migrant workers and members of
their families.
- However, Mexico added further that such reservation does not prevent the
application of the provisions of the Convention between it and Venezuela.
2. Art. 77 – made on 15-Sep-08
- Mexico made a declaration recognizing the competence of the Committee
to receive and consider communications from or on behalf of individual
migrant workers subject to its jurisdiction who claim that Mexico violated
their rights as established by the Convention.

J. Morocco – made upon accession (21-Jun-93)


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1. Art. 92 (1)
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- Morocco made a similar reservation to Algeria.


Mary Kate Shane P. Cizcar Terence Thomas M. Cosare
Immanuel Anthony E. Meru Iana Alyssa F. Soliman
Human Rights 1A Atty. J.P. Dela Pasion

K. Nicaragua – made upon accession (26-Oct-05)


- A declaration was made upon accession that the Convention shall apply
locally in accordance with its domestic laws.
1. Art. 42 (3)
- Nicaragua made a reservation regarding the aforementioned provision
since under Nicaraguan law (Art. 27, par. 2, of their Constitution),
foreigners do not enjoy political rights.

L. Sri Lanka – made upon accession (11-Mar-96)


1. Art. 8 (2)
- The right of foreigners to enter/remain in Sri Lanka shall be subject to
existing visa regulations.

2. Art. 49
- Existing visa regulations do not allow migrant workers to either change their
professions or the institution in which they work since such declarations are
the basis of the visas issued.
3. Art. 54
- Protection against dismissal, period of employment, etc., are governed by
the contracts of employment entered by the migrant workers.

M. Syrian Arab Republic – made upon accession (02-Jun-05)


- Syria’s accession does not, in any way, imply recognition of Israel, nor
would it deal with the same as governed by the provisions of the
Convention.

N. Turkey – made upon accession (27-Sep-04)


1. Art. 15
- Turkey made a declaration that Art. 15 and its restrictions were already
preserved by Turkish laws.
2. Art. 40
- Turkey made a reservation on Art. 40 which allows migrant workers and
their families to form trade unions, since Turkish law does not allow
foreigners to form trade unions.
3. Art. 45 (2, 3, 4)
- Turkey made a declaration that the aforementioned provisions shall be
implemented in accordance with Turkish law.
4. Art. 46
- Turkey made a declaration that the aforementioned provision shall be
implemented in accordance with Turkish law.
5. Arts. 76 & 77
- Turkey will recognize the competence of the Committee at a later time (as
per time of this report, no recognition has been made).

O. Uganda – made upon accession (14-Nov-95)


1. Art. 18 (3)
- Uganda made a reservation that it cannot guarantee at all times to provide
legal assistance.

P. Uruguay – made on 13-Apr-12


1. Art. 77
- Pursuant to the aforementioned article, Uruguay recognizes the
committee’s competence to receive and consider communications from or
on behalf of individuals, subject to Uruguayan jurisdiction who claim that
their individual rights have been violated by Uruguay.

Q. Bolivarian Republic of Venezuela


1. Art. 26 (1)
- Venezuela declared that the article, pertaining to the right of migrant
workers and members of their families to freely join trade unions, should
apply exclusive to migrant workers only.
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Mary Kate Shane P. Cizcar Terence Thomas M. Cosare


Immanuel Anthony E. Meru Iana Alyssa F. Soliman
Human Rights 1A Atty. J.P. Dela Pasion

2. Art. 92 (2)
- Venezuela declared that it cannot be considered bound by the same, and
does not itself bound to resort to arbitration as a means of dispute
settlement, and does not recognize the jurisdiction of the International
Court of Justice.

IV. Equivalent Domestic Laws and the Philippines’ Status as regards the
Convention
• NOTE: The Philippines signed the Convention on 15-Nov-93, and
was ratified on 05-Jul-95.
A. Labor Code of the Philippines, as amended, as well as its implementing rules and
regulations.
- In particular, Book I, Title II, Articles 40 – 42 of the Labor Code, on the
Employment of Non-Resident Aliens.
1. Art. 40 – Requirement that any alien seeking to be employed within the
Philippines, or any domestic or foreign employer who desires to engage an
alien for employment in the Philippines shall obtain an employment permit from
the DOLE.
2. Art. 41 – Any alien shall not transfer (1) to another job or (2) change his
employer without prior approval of the Secretary of Labor.
o Similar to the reservation made by Sri Lanka and its visa
regulations.
o Note: The definition of ‘migrant worker’ under the convention does
not distinguish between a resident and non-resident. Therefore, the
rules on employment of non-resident aliens may still apply.

- Book I, Rule XIV of the Omnibus Rules Implementing the Labor Code.
1. Sec. 2 – All employers employing foreign nationals, whether resident or non-
resident, shall submit a list of such nationals to the Bureau of Employment
Services, indicating their names, citizenship, foreign and local addresses,
nature of employment, and status of stay in the Philippines.
2. Sec. 3 – All employed resident aliens shall register with the Bureau.
3. Sec. 4 – No alien seeking employment may enter the Philippines without first
securing an employment permit from the DOLE.

- Book V, Rule II of the Omnibus Rules Implementing the Labor Code.


1. Sec. 2 – Alien employees with valid working permits may exercise the right to
self-organization and join or assist labor unions if they are nationals of a
country which grants the same or similar rights to Filipino workers.
o Note: Aliens may join, but not create labor unions. Also, Sec. 2
contemplates the principle of reciprocity.

B. Republic Act (R.A.) No. 8042, otherwise known as the Migrant Workers and
Overseas Filipinos Act of 1995, as amended by R.A. No. 10022, and its
implementing omnibus Rules and Regulations.
1. Sec. 4 – Deployment of Migrant Workers. - The State shall allow the
deployment of overseas Filipino workers only in countries where the rights of
Filipino migrant workers are protected. The government recognizes any of the
following as a guarantee on the part of the receiving country for the protection
of the rights of overseas Filipino workers:
a. It has existing labor and social laws protecting the rights of workers,
including migrant workers;
b. It is a signatory to and/or a ratifier of multilateral conventions,
declarations or resolutions relating to the protection of workers,
including migrant workers; and
c. It has concluded a bilateral agreement or arrangement with the
government on the protection of the rights of overseas Filipino Workers.

C. Executive Order No. 797 (01-May-82) creating the Philippine Overseas


Employment Administration (POEA).
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Mary Kate Shane P. Cizcar Terence Thomas M. Cosare


Immanuel Anthony E. Meru Iana Alyssa F. Soliman
Human Rights 1A Atty. J.P. Dela Pasion

D. Republic Act No. 9189, or the Overseas Absentee Voting Act of 2003.
- In relation to the right of migrant workers and their families to participate in
public affairs of their home countries, as discussed in Art. 41 (1), the
Philippines enacted into law the same principle mentioned in the same.
1. Sec. 4 – Coverage includes all Filipino overseas workers, to vote for the
positions of (1) President, (2) Vice-President, (3) Senators, and (4) Party-List
Representatives.
2. Sec. 6 – OFWs may register with the with the Election Registration Board of
the city or municipality where they are domiciled before their departure, or with
the COMELEC representative at the Philippine embassies, consulates, or
other foreign service establishments.

V. References
Asia Pacific Forum of National Human Rights Institutions. (2012). Promoting and
Protecting the Rights of Migrant Workers: The Role of National Human Rights
Institutions. Retrieved from
https://nhri.ohchr.org/EN/IHRS/Documents/APF%20publication%20-
%20promoting%20and%20protecting%20the%20rights%20of%20migrant%20w
orkers.pdf

Asian Development Bank Institute. Organization for Economic Co-operation and


Development. International Labour Organization. (2017). Safeguarding the
Rights of Asian Migrant Workers from Home to the Workplace. Retrieved from
https://www.adb.org/sites/default/files/publication/230176/adbi-safeguarding-
rights-asian-migrant-workers.pdf

Ethical Trading Initiative. Migrant Workers. Retrieved from


https://www.ethicaltrade.org/issues/migrant-workers

Information Platform humanrights.ch. (2015). International Convention on the


Protection of the Rights of All Migrant Workers and Members of Their Families
(ICRMW). Retrieved from https://www.humanrights.ch/en/standards/un-
treaties/migrant-workers/

International Human Rights Forum. Migrant Labor Issues. Retrieved from


https://laborrights.org/issues/migrant-labor

The People’s Movement for Human Rights Learning. Human Rights and Migrant
Workers. Retrieved from https://www.pdhre.org/rights/migrants.html

United Nations. Meetings Coverage and Press Releases. (2003). Convention On


Protection Of Rights Of Migrant Workers To Enter Into Force Next July. Retrieved
from https://www.un.org/press/en/2003/LT4371.doc.htm

United Nations Treaty Collections. (1990). Human Rights. Retrieved from


https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-
13&chapter=4&clang=_en#4
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Mary Kate Shane P. Cizcar Terence Thomas M. Cosare


Immanuel Anthony E. Meru Iana Alyssa F. Soliman