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Definition & Legal Instruments
Definition
According to ILO Migration for Employment Convention (Revised), 1949 (No. 97), the term “migrant for employment” (or, more commonly, “migrant worker”) means a person who “migrates from one country to another with a view to being employed otherwise than on his [or her] own account”. The UN Convention for the Protection of the Rights of Migrant Workers and their Families includes a similar definition. Migrant labour is the work undertaken by someone considered a migrant.
Legal instruments
ILO and UN Conventions
Two main ILO conventions comprehensively define the rights of migrant workers and advocate the principles of equal treatment, equality of opportunity and non-discrimination:
- ILO Migration for Employment Convention (Revised), No. 97 (1949): The convention lays out how ratifying States must treat migrant workers and how to provide equal opportunities through law. It includes provisions to facilitate international migration for employment by establishing and maintaining a free assistance and information service and taking measures against misleading propaganda relating to emigration and immigration; provisions on appropriate medical services for migrant workers and the transfer of earnings and savings; and the requirement that States have to apply treatment no less favourable than that which applies to their own nationals in respect of a number of matters, including conditions of employment, freedom of association and social security.
- ILO Migrant Workers (Supplementary Provisions) Convention, No. 143 (1975): The convention focuses on how to prevent abusive conditions in migration and ensure the protection of the rights of migrant workers. It sets out measures to combat clandestine and illegal migration, while at the same time establishing the general obligation to respect the fundamental rights of all migrant workers. It also includes provisions on migrant workers’ cultural rights and individual and collective freedoms and the right of family reunification of the families of migrant workers legally residing in their territory.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) builds upon and expands the ILO Conventions. It applies to all aspects of the life of migrant workers and members of their families, including the situation of women and children. The ICRMW articulates the principle of equal treatment between migrant workers and nationals with respect to remuneration and other working conditions, calling for equality of treatment regarding migrant workers’ and members of their families’ access to housing, social and health services, and educational institutions among others.
Over 50 countries have ratified ILO Convention No. 97, and nearly 30 have ratified ILO Convention No. 143. The ICRMW has also been ratified only by a small number of countries. The implementation and enforcement of national legislation — and therefore the frequency of violations of migrant workers’ rights — may vary significantly from country to country even if all the core conventions related to migrant workers have been ratified.
Access to Medical Care for Migrant Workers
Article 43 (1)(e) of the ICRMW goes beyond a right to urgent medical care for migrant workers in a regular situation. The Committee on Migrant Workers (CMW) has stated in its General Comment No. 2 (2013) that Article 12 of the ICESCR provides for the right to the highest attainable standard of health for all persons. State parties are therefore obliged to ensure that all persons, irrespective of their migration status, have effective access to at least a minimum level of healthcare on a non-discriminatory basis.
With reference to Article 12, the CMW interprets Article 28 of the ICESCR more broadly: “Article 28 of the Convention provides for migrant workers … to have the right to receive any medical care urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals. Article 28, however, read together with other international human rights instruments, may create broader obligations for States parties to both instruments.”
Other Legal Instruments
The UN Guiding Principles on Business and Human Rights (UNGPs) set the global standard regarding the responsibility of business to respect human rights in their operations and across their value chains. The Guiding Principles call upon States to consider a smart mix of measures — national and international, mandatory and voluntary — to foster business respect for human rights.
Regional and Domestic Instruments
Regional migrant worker instruments such as the European Social Charter and the European Convention on the Legal Status of Migrant Workers provide protection of social rights for migrant workers. The European Social Charter is a Council of Europe treaty that guarantees fundamental social and economic rights, with a specific emphasis on the protection of vulnerable persons, including migrants, whose social and economic rights must be guaranteed without discrimination. The European Convention on the Legal Status of Migrant Workers clarifies principal aspects of the legal situation of migrant workers, in particular recruitment, work permits, working conditions and dismissal among others.
Companies are increasingly subject to non-financial reporting requirements and due diligence obligations in the jurisdictions in which they operate, which often include disclosures on their performance. There are several high-profile examples of national legislation that specifically mandate human rights-related reporting and other positive legal duties, such as due diligence, including the United Kingdom Modern Slavery Act 2015, Australian Modern Slavery Act 2018, the California Transparency in Supply Chains Act 2010, the French Corporate Duty of Vigilance Law 2017, the German Act on Corporate Due Diligence Obligations in Supply Chains 2023 and the Norwegian Transparency Act 2022.
Also, in 2021 the Netherlands submitted a Bill for Responsible and Sustainable International Business Conduct, and the European Commission announced its Corporate Sustainability Due Diligence Directive (CSDDD). This Directive is likely to come into force between 2025 and 2027 and will make human rights and environmental due diligence mandatory for larger companies.
These mandatory due diligence and disclosure laws require companies to publicly communicate their efforts to address actual and potential human rights impacts, including migrant labour abuses. Failure to comply with these obligations leads to real legal risk for companies.