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The Role and Functions of International Organizations

in the Field of Migrant Workers


by
W. R. Bhning
Director
South-East Asia and the Pacific Multidisciplinary Advisory Team
11-12 January 1999
Manila, Philippines

Table of Contents
I.
II.

III.

Introduction
ILO activities in the field of migration

Objectives

Standard-setting activities and ILO

Technical cooperation and advisory services

Other activities

April 1997 Meeting of Experts

I. Introduction

The role that international organizations can play depends on the interests of their member
States. States establish and develop international organizations to achieve objectives that they
cannot achieve on their own. By the same token, States will not permit international
organizations to do things that constitute, in the eyes of these States, interference in their
internal affairs.
This is particularly true in the very sensitive field of international migration. The entry,
economic activities, residence rights, etc., of foreigners are viewed, to this day, as falling
under the sovereignty and reserved domain of States. In the field of international migration,
no State likes to be told what it can or cannot do - neither by another State nor by an
international organization.
What are the principal functions accorded to international organizations? They may be
summarized under four headings:
i.

studies or the collection and dissemination of information;

ii.

setting internationally acceptable norms;

iii.

fostering cooperation through meetings;

iv.

engaging in technical cooperation activities.

States have few hesitations in giving international organizations a mandate to collect and
disseminate information, especially statistical material, and to carry out studies, notably
comparative studies, that enable the analysis of contemporary trends and the drawing of
lessons.
Some intergovernmental organizations, the ILO among them, also enjoy the privilege of
giving birth to and nurturing international minimum standards. This is due to the inability of
any government, except in a hegemonic system that it controls, of setting standards to be
adhered to by other governments. Where there is an identified need for establishing
international norms in a non-hegemonic system, a large number of States have to agree on
procedures and substance for such norms to become a reality. Where levels of treatment are
specified, these norms cannot be more than minimum standards.
It is not enough that governments - and, in the ILO's case, employers' and workers'
organizations as well - agree on a level of treatment to be embodied in an international
Convention. It would constitute no more than a declaration of moral value if the rules agreed
upon would not enter into force at the national level and if their application at that level could
not be supervised internationally. This being a very sensitive issue, only a few international
organizations have been endowed with supervisory mechanisms. The UN only has a very
weak supervisory system and practically no sanctions to call on. The ILO has a somewhat
stronger system. The European Union has a very strong machinery that includes both the
Commission and an independent Court of Justice.
As regards the third activity, the organization of various kinds of meetings to exchange
information, to bring countries together with a view to having them cooperate or agree on a
course of action to be pursued, it is a very common function of international organizations.
Technical cooperation in the sense of having an intergovernmental organization furnish
intellectual, financial or material aid to a country requesting it in the expectation that it might
be helpful, is a relatively new function. But it has become the most important function of
international organizations in the last several decades.
II. ILO activities in the field of international migration
Objectives

The Organization has set itself two interlocking aims. One is the "protection of the interests
of workers when employed in countries other than their own" (Preamble to the Constitution).
The second is "to further among the nations of the world programmes which will achieve...
(b) the employment of workers in the occupations in which they can have the satisfaction of
giving the fullest measure of their skill and attainments and make the greatest contribution to

the common well-being; (c) the provision, as a means to the attainment of this end and under
adequate guarantees for all concerned, of facilities for...the transfer of labour, including
migration for employment and settlement" (Declaration of Philadelphia, section III). The
objective deriving from the Preamble to the Constitution has been pursued in the main
through standard setting, the second through technical cooperation activities, inspired by the
Organization's standards and supported by research at headquarters and in the field. The
following is a brief survey of activities intended to permit interested readers to form an
opinion on what the ILO does in relation to the objectives specified above.
Standard-setting activities and ILO

There is a little need to recall the contents of the various ILO standards whose purpose is to
protect migrant workers. It is more appropriate to indicate the circumstances that gave rise to
their adoption and the key principles embodied in the standards. Leaving aside the period
between the two world wars, relevant Conventions were adopted in 1949, 1962, 1975 and
1982.
The Migration for Employment Convention (Revised), 1949 (No. 97) and the accompanying
Migration for Employment Recommendation (Revised), 1949 (No. 86), which are milestones
in international migration legislation, grew out of the turmoil of post-war Europe and the
desire to facilitate the transfer of surplus labour from this continent to others. Couched in the
language of universally applicable norms, the Convention puts emphasis on, inter alia,
medical services, equality of treatment in respect of remuneration and membership of trade
unions, the provision of free public employment services and the supervision of employers' or
private agencies' recruitment, introduction and placement operations. The Equality of
Treatment (Social Security) Convention 1962 (No. 118), extended the advance of social
welfare philosophy during the 1950s and 1960s to migrant workers and members of their
families, who face special problems due to difficulties in qualifying for certain benefits and
the territorial restriction of benefits, etc. Part I of the Migrant Workers (Supplementary
Provisions) Convention, 1975 (No. 143) constitutes the international community's first
attempt to tackle the questions of irregular migration movements and illegal employment that
became acute at the beginning of the l970s. Part II seeks to promote greater equality of
opportunity and treatment of lawful migrants in respect of employment and occupation. This
instrument was supplemented by the Migrant Workers Recommendation, 1975 (No. 151).
The Maintenance of Social Security Rights Convention, 1982 (No. 157), to which was added
a year later the Maintenance of Social Security Rights Recommendation, 1983, (No. 167),
represents a comprehensive attempt to cover migrant workers and their family members,
particularly those who, due to the temporariness of their moves and employment, may not be
able to benefit from acquired rights or rights in the course of acquisition.
Topical as they were at various points in time, the Organization's standards in favour of
migrants have only enjoyed limited and declining numbers of ratifications (Convention No.
97:41, Convention No. 118:39, Convention No. 143:18 and Convention No. 157:3
ratifications). Moreover, whereas these standards are of primary relevance to migrant-

receiving countries, most States were sending rather than receiving workers at the moment of
ratification. This trend is confirmed by the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families, which was elaborated with
the technical assistance of the ILO and adopted by the United Nations General Assembly in
1990. Only 10 countries have so far been willing to be bound by it - Bangladesh, BosniaHerzegovina, Cape Verde, Colombia, Egypt, Morocco, the Philippines, Seychelles, Sri Lanka
and Uganda - all senders of workers. One reason for the decreasing trend of ratification is the
growing complexity, variety and spread of international migration movements. Another is the
difficulty of covering this complexity with stipulations that effectively secure migrants' basic
rights. Yet another set of reasons is political, such as the reciprocity principle underpinning
ILO Convention No. 157, which reduces the instrument's appeal to developing countries.
The Organization's redress procedures under articles 24 and 26 of the Constitution have been
activated on a few occasions to correct alleged non-observance of ILO standards, though it
has usually been standards other than those mentioned above which have provided the basis
of the search for solutions, such as the forced labour Conventions and the Protection of
Wages Convention, 1949 (No. 95). At the beginning of the l980s, the situation of Haitian
migrants on the Dominican Republic's sugar plantations was the subject of a complaint under
article 26 of the Constitution. The Committee of Experts on the Application of Conventions
and Recommendations has ever since reminded both countries of the need to implement fully
the recommendations of the Commission of Inquiry. During the Gulf crisis, the Federation of
Egyptian Trade Unions made a representation under article 24 alleging, inter alia, that the
country's workers who returned from Iraq prior to the invasion of Kuwait had not received
the wages owed to them.
The Office has resorted to less formal means of tackling problems, always of course in the
light of ILO standards. For example, following the expulsion of tens of thousands of Tunisian
workers from the Libyan Arab Jamahiriya in August 1985, the Government of Tunisia lodged
a complaint before the ILO against the Libyan Government alleging violations of
Conventions Nos. 95, 111 and 118, which both States had ratified. The Director-General
offered his good offices to assist the two countries in finding solutions to the problems raised,
such as the non-payment of wages and compensation due to premature termination of
employment, etc. Representatives of the two Governments met under ILO auspices to discuss
the methods appropriate to dealing with those problems in the light of ILO standards; and the
matter was eventually settled by unilateral decision of the President of the Libyan Arab
Jamahiriya.
Yet another approach was used to contribute to a solution of the many and widespread
problems alleged to have occurred in the employment of Arab and Asian migrant workers in
countries of the Persian Gulf region. Informal round-table meetings of representatives from
receiving and sending countries were held - two were exclusively focussed on the subject of
migrants' recruitment and employment conditions, one spent much time on the problems
experienced by domestics - without publicity and without recommendations or conclusions to
be agreed upon by the participants. The intense discussions helped the parties to understand

better the issues involved, although no breakthroughs appear to have resulted from them, due
to the lack of any follow-up mechanism.
Technical cooperation and advisory services

The "old generation" of technical cooperation projects that moved experts and equipment etc.
to a country over lengthy periods of time got under way in the field of migrant workers in
1976 in Colombia, which had requested aid in the formulation and implementation of its
policy of sending labour to Venezuela. Most activities took place in Colombia, others brought
the two countries together through seminars. Regional social security arrangements were the
subject of several projects in Africa in the 1980s, for example in the Union of Central African
States (UDEAC - Union d'Etats d'Afrique Centrale) and the Economic Community of the
Great Lakes Countries (CEPGL - Communaut Economique des Pays des Grands Lacs).
Despite considerable efforts by the Office, including the training of social security
administrators, the institutional links between member States of regional organizations never
functioned properly.
The entrepreneurial capacities sometimes attributed to migrant workers were the subject of
projects in countries as different as Germany and the Philippines. In Germany, Turkish and
other foreign nationals were helped and trained in small-enterprise development as well as in
imparting training to second generation migrants in their enterprises, and a number of the
enterprises supported by the ILO project are today flourishing businesses. In the Philippines,
three pilot projects were carried out in Manila with the Employers' Confederation of the
Philippines, in Cebu City with the Cebu Chamber of Commerce and Industry, and in
Tacloban City with the Leyte-Samar Rural Development Workers' Association, to test
approaches for the delivery of support services to various target groups of return migrants and
their families. A Workshop on reintegration through micro-entrepreneurial development was
held under ILO auspices in Manila in January 1999.
A regional project directed from Bangkok in the late 1980s and early 1990s ushered in a new
generation of wide-ranging ILO assistance. Benefiting eventually 12 Asian countries of
emigration, the regional project tackled their individual or shared economic, statistical and
legislative information needs; helped several of them to set up or expand emigration
institutions; provided training to government officials, including labour attaches stationed in
migrant-receiving countries; and brought to bear the Office's expertise on social security
questions at the national and subregional levels.
Technical advisory services constitute the modem form of Office activities in the field of
migrant workers, that is, policy analysis and guidance in response to direct requests or under
UNDP's TSS-1 auspices, as well as assistance to trade union organizations. A sample of
technical advisory services include:

a mission to Moscow a few weeks before the dissolution of the USSR when
far-sighted officials in the Ministry of Labour looked for basic inspiration on
future immigration and emigration policies. The mission's

recommendations were not without influence in the design of basic


policies and the institutional structure of what later became the Federal
Migration Service of the Russian Federation;

a TSS-1 assignment in 1994-95 in the Republic of Korea that began with a


survey of 240 small and medium-sized firms in Seoul and other industrial
centres, was followed by a rapid assessment mission to Seoul, and ended
with the presentation of the findings and recommendations at a workshop
organized by the Korea Federation of Small Business;

an evaluation in the Philippines of the training received by a variety of


persons who provide information to people considering to work abroad.
Recommendations were formulated on how to render the pre-employment
orientation more useful and effective;

two workshops in Jakarta - one in September, the other in November 1998


- with the aim of familiarizing Indonesian policy makers and NGOs with
policy options in the broad field of the protection of migrant workers.

Other activities

A few distinct other activities are worth singling out summarily. At the beginning of the
1990s the Office began to search for and obtained extra-budgetary funds to carry out a project
aimed at reducing discrimination against migrant workers in high-income countries. This
project comprises (i) "practice tests" to determine whether or not employers discriminate
against migrants who are legally on a par with nationals, (ii) evaluations of the actual
workings of national redress mechanisms that aggrieved migrants can make use of, and (iii)
examinations of equal opportunity training courses of public or private employers in favour
of personnel managers, recruitment officers, etc.
The ILO's Bureau of Statistics has extended its expertise to international migration statistics
and requested information on data from countries for possible inclusion in future issues of the
Year Book of Labour Statistics. Guidelines to improve data collection systems on
international migration have also been elaborated, which can serve as a basis for future
technical advisory services in this field. These were published in book form under the title
International Migration Statistics: Guidelines for improving data collection systems, by R. E.
Bilsborrow, et al. (ILO, 1997). Two manuals to serve policy-makers and administrators have
been elaborated by the ILO. One is entitled Employing foreign workers. A manual on policies
and procedures of special interest to middle- and low-income countries, by W. R. Bohning
(ILO, 1996), the other Sending workers abroad: A manual for low- and middle-income
countries, by M. Abella (ILO, 1997).
III. April 1997 Meeting of Experts

While ILO Conventions have often been path breaking instruments, they have a tendency to
"age" where they go into detail of the subject matters, or they may not be fully adapted to
changing circumstances or new developments. This holds true of the two Conventions
concerned with migrant workers, which date back to 1949 and 1975, respectively. To take

account of this fact, but without going through the process of elaborating new Conventions,
the ILO convened, in April 1997, a Tripartite Meeting of Experts on Future ILO Activities in
the Field of Migration. In actual fact, the April 1997 Meeting of Experts had three purposes.
The first one was to elaborate guidelines on the protection of workers engaged in time-bound
employment - essentially seasonal workers, true project-tied workers, special purpose
workers, cross-border service providers, students and trainees - who were not covered by the
1949 and 1975 Conventions.
The second was to elaborate guidelines on the protection of migrants who are recruited by
private employment agencies. In the ILO, "guidelines" have the objective of inspiring policy
makers and administrators. They are not subject to ratification or adherence and, therefore,
carry no legal obligation. It is up to the ILO's constituents to decide how to use them and
adapt them to their national situations.
The third purpose of the April 1997 Meeting of Experts was to tackle the problem of
persistent maltreatment and exploitation of migrant workers, which continued to exist in
several parts of the world even though international standards of minimum treatment had
been defined at the global level. The question was, if the Organization's international
migration standards had limited influence on the recruitment and employment conditions of
migrants in the world at large, and if the formal and informal redress mechanisms to right
alleged wrongs had not in the past had the desired impact, whether one could envisage an
instrument that would appear less threatening to governments and more along the lines of
technical advice rather than "international condemnation." What the ILO envisaged was
referred to as pattern or practice studies of the exploitation of migrant workers not falling
under Convention-based procedures.
The April 1997 Meeting of Experts agreed to this idea, and later in the year the Governing
Body of the ILO formally endorsed it. The details are indicated in Annex III of document
GB.270/5.
To illustrate the idea of "pattern or practice studies", one example might be that of a trade
union organization in a country of employment which appeals to the Office to look into the
alleged exploitation of migrants in a particular sector of the economy. The Office could
respond positively and envisage to commission, or carry out, a study in that country. The
results of the investigation would hopefully be the subject of at least informal discussion,
preferably tripartite, within the country concerned, with a view to arriving at lasting
improvements in situations manifestly far removed from the stipulations of existing
international labour standards.