LEGAL INSTRUMENTS ON INTERNATIONAL MIGRATION

INTRODUCTION The international normative framework on international migration includes instruments

Refugees

1951 Convention relating to the Status of Refugees

1967 Protocol relating to the Status of Refugees

Migrant workers

1949 ILO Convention concerning Migration for Employment (Revised 1949) (No. 97) .

1975 ILO Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of
Opportunity and Treatment of Migrant Workers (Supplementary Provisions) (No. 143) ..............

1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families .

2011 ILO Convention concerning Decent Work for Domestic Workers (No. 189)....................

Smuggling and trafficking

2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

2000 Protocol against the Smuggling of Migrants by Land, Sea and Air.

REFUGEES The 1951 Convention and the 1967 Protocol, both relating to the Status of Refugees, are the
central elements in the international regime of refugee protection. The 1951 Convention defined the
term “refugee”,i enumerated the rights of refugees and established the legal obligation of States to
protect refugees. The Convention prohibited the expulsion or forcible return of persons accorded
refugee status: no refugee should be returned in any manner to a country or territory in which his or her
life or freedom would be threatened—principle of “non-refoulement”. The 1967 Protocol extended the
application of the 1951 Convention to persons who became refugees after 1 January 1951, without any
geographic limitation. By October 2015, the 1951 Convention and its 1967 Protocol had been ratified by
145 and 146 United Nations Member States, respectively, with 143 States Parties having acceded to
both instruments. The 148 States that had ratified either the 1951 Convention or the 1967 Protocol
hosted, collectively, 9.6 million refugees in 2015, or slightly less than half of the global refugee
population.
 MIGRANT WORKERS The International Labour Organization (ILO) has adopted three legally-binding
instruments that are directly relevant for the protection of migrant workers: the Migration for
Employment Convention (Revised), 1949 (No. 97), the Convention concerning Migrations in Abusive
Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers
(Supplementary Provisions), 1975 (No. 143), and the Convention concerning Decent Work for Domestic
Workers, 2011 (No. 189).ii All three instruments have complementary non-binding recommendations.
The 1949 Convention (No. 97) covers recruitment and promotes standards regarding the working
conditions of migrant workers. It established the principle of equal treatment of migrant workers and
nationals with regard to laws, regulations and administrative practices concerning living and working
conditions, remuneration, social security, employment taxes and access to justice. The 1975 Convention
(No. 143) was the first multilateral attempt to address irregular migration and to call for sanctions
against The 2011 Convention (No. 189), which entered into force in 2013, was the first multilateral
instrument to establish global labour standards for domestic workers, guaranteeing them the same
basic rights as other workers. The convention established that domestic workers, regardless of their
migration status, have the same basic labour rights as other workers, including reasonable hours of
work, a limit on payment in-kind and clear information on the terms and conditions of employment.
Employers of domestic workers must respect the fundamental principles and rights at work, including
freedom of association and the right to collective bargaining. As of 6 October 2015, 49 ILO Member
States had ratified ILO Convention No. 97; 23 Member States had ratified Convention No. 143; and 22
Member States had ratified Convention No. 189. In total, only three of ILO’s 186 Member States—Italy,
the Philippines and Portugal—had ratified all three instruments. These three countries represent fewer
than two per cent of ILO Member States and hosted fewer than three per cent of all international
migrants worldwide (6.8 million) in 2015. The 1990 International Convention on the Protection of the
Rights of All Migrants Workers and Members 4 of their Families is the third, and most comprehensive,
international treaty on migrant rights. It established international definitions for categories of migrant
workers and formalized the responsibility of States in upholding the rights of migrant workers and
members of their families. The Office of the High Commissioner for Human Rights monitors the
implementation of this convention and works to further its ratification. As of October 2015, 48 Member
States had ratified the 1990 Convention. Collectively, they hosted 18 million international migrants in
2015, about seven per cent of the global total. None of the States Parties to the Convention were major
migrant-receiving countries, and only five of them hosted more than one million international migrants.
Overall, 93 countries had ratified at least one of the four instruments regarding migrant workers.
Together they hosted 35 per cent of the global population of international migrants in 2015, or around
85 million migrants.

International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families :This instrument compels all nations to respect and to ensure to all migrant workers and
members of their families within their territory or subject to their jurisdiction the rights provided,
without distinction of any kind such as to sex, race, color, language, religion or conviction, political or
other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital
status, birth or other status. Article 1 Convention applicable to all immigrants, without distinction of any
kind.
Application Convention shall apply during the entire migration process of migrant workers and
members of their families.

Article 2 Terms For the purposes of the present Convention: 1. "migrant worker" 2. "frontier worker" 3.
"seasonal worker" 4. "sea farer 5. "worker on an offshore installation" 6. “itinerant worker'' 7.
"projecttied worker" 8."specified-employment worker" 9. "self-employed worker" Persons sent by
international organizations,

Article 3 The present Convention shall not apply to: Persons sent or employed by agencies, or by a
State outside its territory to perform official functions, Persons takingState or on its behalf outside its
territory who participate in development programmes. Refugees and stateless persons up residence in
a State different from their State of origin as investors; Seafarers and workers on an offshore
installation who have not been admitted to Students and trainees; take up residence and engage in a
remunerated activity in the State of employment.

Article 4 defines ''members of the family" Article 5 provides that for the purposes of the present
Convention, migrant workers and members of their Are considered as documented or in a regular
situation if they are authorized to enter families: Are considered as non-documented or in an irregular
situation if they do not comply with the conditions provided for in subparagraph (a) of the present
article. “State of transit” "State of employment" "State of origin" .

Article 6 defines the terms: 5 Part II: Non-discrimination with Respect to Rights Article 7 provides
applicability, stating that “States Parties undertake, in accordance with the international instruments
concerning human rights, to respect and to ensure to all migrant workers and members of their families
within their territory or subject to their jurisdiction the rights provided for in the present Convention
without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or
other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital
status, birth or other status. Human Rights of All Migrant Workers and Members of their Families
Articles 8 through 17 address the following rights of migrant workers and their families, with
enumerated circumstances for exceptions: The right to leave any State, including their State of origin;
and the right at any time to enter and remain in their State of origin. The right to life of migrant workers
and members of their families shall be protected by law. The right not to be subjected to torture or to
cruel, inhuman or degrading treatment or punishment. The right not to be held in slavery or servitude,
or required to perform forced or compulsory labour. The right to freedom of thought, conscience and
religion. The right not be subject to coercion that would impair their freedom to have or to adopt a
religion or belief of their choice. The right of freedom to manifest one's religion or belief may be subject
only to such limitations as are prescribed by law and are necessary to protect public safety, order, health
or morals or the fundamental rights and freedoms of others. The right to hold opinions without
interference. With exceptions, the right to freedom of expression; to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art or through any other media of their choice. The right to be free from arbitrary or unlawful
interference with privacy, family, or to unlawful attacks on his or her honour and reputation. The right to
the protection of the law against such interference or attacks. The right not to be arbitrarily deprived of
property. Where, under the legislation in force in the State of employment, the assets of a migrant
worker or a member of his or her family are expropriated in whole or in part, the person concerned shall
have the right to fair and adequate compensation.

The right to liberty and security of person. The right to effective protection by the State against violence,
physical injury, threats and intimidation, whether by public officials or by private individuals, groups or
institutions. The right to have any verification by law enforcement officials of the identity of migrant
workers or members of their families shall be carried out in accordance with procedure established by
law. Article 17 addresses the following topics regarding the rights of migrant workers and their families
in the context of due process rights: Arbitrary arrest or detention, or deprivation of liberty. Prompt
information in a language they understand of any charges against them, etc.

The right to be brought promptly before a judge or other officer authorized by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release. The right to have consular or
diplomatic authorities of his or her State of origin or of a State representing the interests of that State
shall, if he or she so requests, be informed without delay of his or 6 her arrest or detention and of the
reasons therefore The right to have the right to communicate with the said authorities.; The right to a
determination of lawfulness of detention and compensation for unlawful detention.

The instrument addresses the following rights in the context of detention and expulsion: Treatment and
cultural identity. Separation from of accused and juveniles from convicted persons Protections pending
trial Reformation and social rehabilitation Juvenile Offenders Visitation Spouses and children
Equal rights and treatment Costs Part IV: Other Rights of Migrant Workers and Members of their
Families who are Documented or in a Regular Situation Article 36 Additional rights of documented or
regular migrants Article 37 Right to full information about employment conditions and relevant law
Article 38 Temporary absences Article 43 Equality of treatment Education Vocational guidance,
training, institutional and placement services Housing Social and health services Access to co-
operatives and self-managed enterprises, Access to and participation in cultural life. State restrictions
Article 44 Family Protection Reunification Equal treatment Article 45 Equal treatment of family
Article 46 Import and export duties Article 47 Transferring earnings, savings, and property. Article 48
Taxes Article 49 Authorization for residence and employment Article 50 Death or divorce Article 51
Status upon loss of remuneration Article 52 Choice of work Article 53 Family choice of work Article 54
Equal treatment with nationals in employment Protection against dismissal Unemployment benefits
Access to public work schemes intended to combat unemployment Access to alternative employment
in the event of loss of work or termination of other remunerated activity, subject to article 52 of the
present Convention. Right to redress wrongful termination under competent authority 7 Article 55
Exercising remunerated activity Article 56 Expulsion Part V: Provisions Applicable to Particular
Categories of Migrant Workers and Members of their Families Article 57 Particular categories of
migrants who are documented or in a regular situation Article 58 Frontier workers, possible right to
choose activity Article 59 Seasonal workers possible priority Article 60 Itinerant workers Article 61
Project-tied workers Article 62 Specified-employment workers Article 63 Self-employed workers Part VI:
Promotion of sound, equitable, humane and lawful conditions in connection with international
migration of workers and members of their families Article 64 Human conditions relating to migration
Article 65 Appropriate migration services Article 66 Recruitment of workers Article 67 Returning to the
State of origin Article 68 Illegal movement of migrants in irregular situation Article 69 Irregular situations
Article 70 Working and living conditions Article 71 Death Part VIII: General provisions Article 79
Domestic admission criteria Article 80 Specialized agencies Article 81 More favourable treatment Article
82 Renouncement Article 83 Remedies

4 SMUGGLING AND TRAFFICKING The two protocols seeking to stem irregular migration concern
human trafficking and migrant smuggling, supplementing the United Nations Convention against
Transnational Organized Crime. The 2000 Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children took effect in 2003 and, as of 6 October 2015, had been ratified
by 167 United Nations Member States. The Protocol defined human trafficking as the acquisition of
people by improper means, such as force, fraud or deception, with the aim of exploiting them. The
Protocol aimed to prevent and combat trafficking in persons, to protect and assist victims of such
trafficking, in particular women and children, to prosecute perpetrators of such crimes and to promote
cooperation among States Parties. The 2000 Protocol against the Smuggling of Migrants by Land, Sea
and Air took effect in 2004 and had been ratified by 140 United Nations Member States as of 6 October
2015. As set out in the Protocol, smuggling of migrants involves the procurement, for sake of financial or
other material benefit, of the illegal entry of a person into a State of which the person is not a national
or permanent resident.

The Protocol has proven to be an effective tool for combating and preventing the smuggling of “human
cargo”. It reaffirmed that migration in and of itself is not a crime, and that migrants may be victims in 8
need of protection. The United Nations Office on Drugs and Crime (UNODC) assists Member States in
implementing the two protocols. The rapid increase in the ratification of the human trafficking and the
migrant smuggling protocols may reflect a growing concern among Member States about the
involvement of organized crime in irregular migration As of October 2015, the extent of ratification for
the above-mentioned conventions and protocols differed greatly by development group and major
area .

For the 1951 Convention and its 1967 Protocol, both relating to the status of refugees, the rate of
ratification is low in Asia (40 per cent) and in Oceania (57 per cent), while the remaining areas show
ratification rates above 80 per cent for at least one of the two instruments. Ratification rates of the
protocols relating to human trafficking and migrant smuggling are highest for Member States in
Northern America (100 per cent for both), Latin America and the Caribbean (100 and 91 per cent,
respectively) and Europe (95 and 91 per cent, respectively). The rate of ratification of the two protocols
was higher amongst countries of the developed regions than amongst countries of the developing
regions.

Overall, the four instruments relating to migrant rights show lower ratification rates compared to the
other migration-related instruments in all regions. Latin America and the Caribbean had the highest
percentage of countries having ratified at least one migrant rights instrument, whereas countries in
Northern America have not ratified any of these instruments.