CONFERENCE REPORT

The Human Rights of Migrant Workers: Agenda for NGOs Graziano Battistella Scalabrini Migration Center

The International Conference on the Human Rights of Migrant Workers: Agenda for NGOs, organized by the Scalabrini Migration Center in cooperation with the International Labour Organisation, the Friedrich Ebert Stiftung and Missio, took place in Manila on 19-20 November 1992. More than 30 speakers from Asian countries, the U.S. and Europe contributed to the program attended by approximately 100 representatives of nongovernmental organizations involved with the assistance and protection of overseas contract workers.

The Context The topic was introduced in the setting of the context. The prominence acquired by human rights is due to codification of international and regional instruments as well as to the exposure of violations and needs for redress obtained by relentless activities of the human rights movement, which comprises thousands of organizations. According to Arthur Helton of the New York based Lawyers Committee for Human Rights, “governments are ordinarily reluctant to be recognized as engaging in human rights violations. Public exposure and pressure, i.e. the mobilization of shame, is the fundamental NGO strategy.” In the opinion of the same speaker, achieving an integrated NGO approach to the promotion of human rights is perhaps the most important task for the human rights movement.

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Within the human rights movement Asian human rights organizations have brought fresh approaches, both theoretical and strategic, said Clarence Dias of the International Center for Law in Development. “On the theoretical level they have focused attention not only on human rights but also on inhuman wrongs; not only on human rights but also on the right to be human.” The need for linkages, networking and external support is clear. However, institutional relationships among human rights NGOs has been scarce, since “they cherish their autonomy, identity and independence and therefore are willing to accept, at most, loose coordination within a membership organization.” However, the same NGOs have been much more successful in their relationships with other organizations with similar functions.

Human Rights of Migrants in Specific Countries Violation of human rights of migrant workers and protection available to them subsequently became the focus of the conference. In Japan the rising volume of irregular migration, fueled by the need to keep shops, construction operations and entertainment facilities open while maintaining a non-admission policy for unskilled labor, constitutes prime ground for rights violations. Areas that deserve particular attention are health care insurance, tied up in an integrated social security system to which aliens do not participate, and the social discrimination against women, who are allured into Japan with the promise of honest work and often directed toward prostitution, in a collusion of local and foreign underground syndicates, as well as tolerance of such practices by public opinion. According to Mizuho Matsuda of HELP, “the government attaches many restrictions to foreigners’ rights... reflecting the negligible value it attaches to the lives of foreigners.” In Hong Kong, domestic workers, mostly from the Philippines, constitute the bulk of migrant labor. Domestic workers complain particularly about long working hours, as well as about verbal assault, physical harm and sexual abuse. It is a scenario common to many countries in which the profession is practiced. “Indiscriminate and unjustified dismissal is also common,” said Cynthia Tellez of the Mission for Filipino Migrant Workers, and the helper must return to the Philippines to process a new contract. More protection is expected from the Philippine Government and more action is sought from the Overseas Workers Welfare Administration (OWWA) offices, whose fund is not available where most needed — in the place of employment of migrant workers. The size of irregular migrants in Taiwan, estimated at around 30,000 according to Michael Wang of the Chinese Association of Human Rights, has not much dwindled since the amnesty instituted by the Employment Service

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Law enacted in May 1992. These workers cannot organize and enforce their rights. The situation is further complicated by the fact that Taiwan is not a member of ILO nor of the UN and that a human rights commission has still to be established. The responsibility for the protection of human rights, including the rights of migrants, is carried out by the executive or judiciary organs according to the domestic laws. “The actual number of foreigners legally employed in Korea remains nearly marginal” reported Kim Hyoung Tae of the Lawyers for a Democratic Society in Seoul. Regardless of the 1991 presidential instruction, the government still maintains its ban on legal employment of foreigners in small and medium factories. However, “the legal or administrative authorities seem to have actually induced illegal forms of employment of foreigners by a lack of coherent policies.” Irregular migrants who reported between January and July of this year were over 61,000, the majority Koreans with Chinese citizenship, followed by Filipinos (30 percent), Nepalese and Bangladeshis. Apparently, racial discrimination is not an issue in Korea, where migrants experience instead poor working conditions and lack of social security protection. Most work 78 hours a week and live in crowded compounds (five per room) without cooking facilities. The rate of accidents is also high (29 percent) and over 60 percent had to pay their own cost of treatment for injury. Malaysia has experienced for some time inflow of regular as well as irregular migration. Several measures to regularize foreign workers have proven ineffective. Recent trends are showing that Bangladesh is becoming an additional country of origin for workers employed in rubber plantations, while Filipino maids, who have organized and raised their salary expectations, are being replaced by Indonesians. The irregular status of migrants constitutes a primary condition for potential abuse against them. Domestic workers are also unprotected, said Rita Reddy from Women in Development in Kuala Lumpur, since this category falls within the informal sector and lacks employment legislation. Thailand is a country which is experiencing all forms of migration: ruralurban migration, both in a permanent and seasonal form, emigration to foreign countries such as Japan and Taiwan, and some form of immigration, generated by the fast growing economy. Victimization occurs both among internal as well as international migrants, particularly against women who are easily made prey of prostitution rackets. Thongbai Thongpao has indicated that common problems among these migrants originate from the fact that they do not know their own rights and they cannot utilize labor laws, since they are not enforced. Indonesia is currently experiencing some out-migration, particularly of domestic workers to the Middle East. Economic indicators suggest that such emigration pressure will continue in this decade. Consequently, the govern-

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ment has set rules to limit the employment of foreign workers, a limitation which is deemed necessary to protect the Indonesian workers, as explained by Gani Samil. It is considered a corollary of the right to employment established in the constitution. However, some alien labor force is present in connection with foreign investment and transfer of technology. Europe, a continent which appears increasingly as a single unity in political and economic relations, remains in reality a much diversified entity. Europe is the destination of many migrants and asylum seekers, adding multicultural and pluralistic dimensions to once monocultural nations. This diversity has generated conflicts lately, which have acquired racist and xenophobic connotations. Thus progress on human rights, which enjoy in European countries comparatively high protection based on a number of regional instruments, must be constantly monitored for migrants in Europe. Jan Niessen of the Churches Committee for Migrants in Europe has indicated that among the tasks of NGOs involved in this area are combating racism, aiming at equality of treatment and confronting the root causes of human rights violations. Australia remains a country of permanent immigration, where immigrants admitted to the territory enjoy equality of treatment with nationals. However, differences and discrimination against the latest arrived appear at the practical level. Sometimes discrimination is exercised as exclusion of new entrants in protected professions. The Trade Unions have organized to combat such manifestations. In highlighting the role of trade unions, Alan Matheson of the Australian Council of Trade Unions has also indicated the parallel course undertaken by unions and NGOs in furthering human rights and the need for cooperation. In an international scenario where human mobility will increase and take new forms, Matheson said, migrants are not just persons to be protected, but persons who want to intervene and contribute. In the complex environment of immigration to the United States, Peter Schey of the Center for Human Rights in Los Angeles has highlighted the poor living and working conditions of farm workers. Utilized by growers in seasonal periods, they do not enjoy decent housing and are often victims of poisoning caused by pesticides. Such situation contrasts with the typical image that migrants have of the United States as a promised land, and testifies of the different standards of protection accorded to people. A champion in advocating the protection of human rights in the international arena, the US lags far behind other nations in adherence to international human rights instruments.

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The Situation in the Philippines According to Senator Wigberto Tañada, the economic planners of the Philippines should recognize that the labor export industry has become a major economic sector. Conceived in the 1970s as a stopgap economic measure, the industry has become “permanently temporary.” The two million overseas workers remit an estimated $4.8 billion annually, more than half of the country’s export earnings. The difficult dilemma, which, in Tañada’s words, only a well-functioning economy at home can ultimately resolve, is: “Must we continue to encourage or tolerate the growth of labor export industry given the widespread violation of rights of Filipino workers? Must we stop or restrict the industry given the massive problems of unemployment and underemployment?” Labor Secretary Nieves Confesor stated that the Philippine Government recognizes the exodus of overseas workers, once part of the history of many developed nations, as an integral component of the national development program. This implies: 1) acknowledging the temporary loss of skills; 2) assisting OCWs into reintegration after return; 3) placing overseas labor high on the foreign policy agenda; and 4) providing permanent programs and lasting “safety nets” for workers in migrant status. However, the recourse to overseas work should not continue forever. In this regard it acquires significance that the Ramos administration has set as a target for 1998 a decrease of deployment of OCWs. In the educational and protective areas the government foresees an expanded role for NGOs and a potential for increased cooperation with the government. A different view was provided by Arnel de Guzman, of Kaibigan. In his opinion, there is “a yawning gap between rhetoric and practice” in the protection of the rights of migrants. In 1990, there were 4,128 complaints from victims of recruitment rules violations, while 1,137 were victims of illegal recruitment. Proposed legislation to address the issue of protection of Filipinos involved in the migration process has not passed. At the same time, economic perspectives are not improving. Thus “mass poverty which is already a violation of the socio-economic rights of the people will continue.”

Human Rights in the International Context

The role of human rights in international relations is going through a phase of hesitancy, determined by the NICs’ rejection of this item in the agenda, particularly in Asia. James Hsiung from New York University illustrated that, to a first cluster of civil and political liberties, other rights have emerged from

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the principle of self determination and have led to the right to development. There appears to be some contradiction between the individual and group dimension of these rights. However, interdependence has created the conditions for integration instead of conflicts. Migrant workers, in particular, appear to play a bridging role and demonstrate that individual and community rights are two sides of the same coin. Should codification of human rights continue, adding additional instruments to several conventions already adopted by the international community? To Virginia Leary of New York State University at Buffalo the answer is yes, particularly at the regional level, where implementation is more effective. In this sense, Asia stands out as the only region in the world still without an instrument on human rights. The progress on such endeavor was later illustrated by Carlos Medina of Lawasia. However, Virginia Leary pointed out several areas still needing attention, including the codification of the rights of the rights of indigenous people, as well as additional work in the area of social and economic rights. Thus, it is inevitable that more instruments will be added to the human rights corpus. And yet, careful consideration on the need for “quality control” should also be provided. Yash Ghai from Hong Kong indicated that there is no Asian perspective on human rights, but several Asian perspectives. However, when these perspectives are claimed, usually with emphasis on community vis a vis the individual, they should be placed in the broader scenario of economic and political choices made by countries. In particular, it appears that the precedence of economic development over the democratic process is a false approach, since both can develop at the same time. Labor rights in the NICs where migration is currently heading went through major reforms during the 1980s, particularly in Taiwan and the Republic of Korea. Singapore has instead experienced peaceful industrial relations. NICs have shown the lead, followed by South Asia and ASEAN countries where labor law reforms appear to be receiving high priority. However, the effective implementation of labor laws is a major problem, according to Carmelo Noriel of ILO in Bangkok. Overall, Asian countries have a low rate of ratification of ILO conventions and have not ratified the conventions concerning migrant workers.

The UN Convention on Migrants’ Rights and Future Developments Illustrating the specific human rights provided by the recent UN Convention on the Rights of All Migrant Workers and Members of their Families, L.R.

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Penna from the National University of Singapore has recognized that they are laudable provisions. At the same time, however, he has indicated that in a world divided by narrow walls of immigration they appear to be too utopian. However, “the convention illustrates the awareness of the international community to the hazards and hardships encountered by migrant workers and its aspirations to find effective solutions.” After the adoption of the UN Convention, and considering the existence of relevant ILO as well as regional conventions, are there still legislative gaps in the protection of the migrants? According to Ved Nanda of the University of Denver the answer is positive. In particular, persons in business, trade and investment, seafarers and workers on offshore installations and asylum seekers are excluded from the convention, which does not provide adequate protection to second generation migrants and does not give specific attention to women, whose participation in the migratory process presents peculiar characteristics and needs. However, “the major problem lies with the lack of effective implementation and enforcement of the existing international instruments.”

Towards an Agenda for NGOs Most NGOs involved with protection and assistance to migrants are not primarily human rights NGOs. However, the increasingly wide variety of violations of migrants’ rights implies that human rights cannot be forgotten in their agenda. The conference has served to call attention to the violations of migrants rights, and also to provide an educational moment for the acquisition of the human rights perspective by NGOs. From this exchange, the following elements for coordinated future action have emerged. Information Gathering Migration is receiving greater attention among social scientists and is often reported on by the media. However, what has been discovered is only the tip of the iceberg, particularly in the area of abuses committed against migrants. Gathering and disseminating information on such abuses is a task of primary importance. One practical strategy used by numerous Asian NGOs is indicating cases of abuse to the press and collecting clippings from published material. At the level of dissemination, a number of clippings collections of national as well as regional scope focus on migrants (e.g., the ILO newsclippings from Bangkok and the magazine Asian Migrant published quarterly by the Scalabrini Migration Center). Organized NGO cooperation will strengthen the service provided by such instruments.

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Advocacy Migrants are often voiceless, for several reasons. They do not know their rights in a foreign country; they do not speak the language of that country to effectively bring their case to the authorities; they are afraid to come forward for fear of retaliation and, in the case of irregular migration, for fear of repatriation. Advocacy means to speak for the voiceless and make visible latent conflicts. At the advocacy level, information has to be assessed to be transformed into evidence. In particular, the dimensions of frequently mentioned violations have to be determined through appropriate research. For instance, how extensive is the problem of migrant women forced into prostitution? In addition the wide range of violations has to be targeted, to make intervention more effective. Thus, it is necessary to identify the focal points to mobilize shame. At the national level, this could imply focusing on illegal recruitment, both in the country of origin and in the country of employment. At the international level, countries of employment with less than satisfactory protection of migrants should be identified and sanctioned by curtailing labor deployment. In the same line, categories of migrant workers which are particularly vulnerable to abuse should be identified. For instance, women (domestic workers and entertainers in particular) and fishworkers, together with irregular migrants in general, appear among the most unprotected. A typology of abuses and human rights violations should be constructed to help identify the necessary action. The conference called attention to the sequestering of passports, forging of documents, contract substitutions, constraint and control of freedom, physical abuse. Legal Aid Even when migrants arrive to take their case to the authorities, they lack the necessary legal assistance, either because it is too costly or because the system appears too intimidating. Thus, often they are encouraged to accept monetary settlements, which do not render justice to their cause and allow perpetrators to continue in their trade. Formation of legal and paralegal voluntary agencies should be encouraged and soliciting of pro bono services pursued. In this regard, it is helpful to explore the possibility of utilizing the help of law students, perhaps even instituting this practical experience in assisting migrants as part of their curriculum. Also effective is the development of a hotline and urgent response

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system for aid to be given in emergency situations. The refinement of grievance mechanisms both in the country of origin and in the country of employment is of paramount importance, a task for which the experience of ILO must be utilized. Lobbying for Appropriate Legislative Action Protection is ensured only when appropriate legislation is adopted and laws are implemented. The national and international scenario reveal contradictory approaches to human rights protection: countries portraying themselves as human rights champions which do not ratify human rights instruments; and countries which ratify instruments, but with an apparently low level of compliance. A whole range of activities are necessary in the area of legislative action, particularly in consideration of the fact migration is itself an international phenomenon. a. Launch a campaign to adopt and ratify the UN Convention on the Rights of All Migrant Workers and Members of Their Families. In addition, test the Convention as a monitoring mechanism by bringing cases before it and exploring the possibility of developing more effective ways to monitor violations. b. Intervene to speed up the international agenda for the articulation of minority rights and cultural rights as correlative mechanisms for protecting migrants in the countries where they are working. c. Develop a legal research agenda to prepare model legal instruments in target areas: model bilateral agreements; model employment contracts; model national legislation in sending countries that addresses the often ignored aspect of migrant labor; rethinking concepts such as dual citizenship and its consequences. In this regard, ILO provides of wealth of experience for consultation. d. Develop a welfare bill of rights in the sending countries especially for the families and dependents of migrant workers. e. Where adoption of international standards appears improbable, identify key provisions in international conventions to be put on the agenda for national legislation. f. Give careful attention to non-discriminatory application of standards and make such application of standards gender sensitive, culture sensitive and skill specific. g. Formulate a strategy to carry migrant workers rights into the UN world conference on human rights.

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Education and Empowerment People cannot defend their rights unless they know them. Such knowledge empowers them and makes them self-reliant. Education on migrants rights should begin before departure for overseas work and extend through the onsite and return phases of migration. a. Include the presentation of rights in seminars, or similar initiatives organized for migrants before they depart, utilizing as an educational tool the UN Convention on the rights of migrants. b. Prepare educational material targeted at employers abroad to make them aware of the rights of migrants hired by them. c. Conscientize the public at large to the issue of overseas work, particularly through the adoption of units in the school system, especially at the high school level. Delivery of Services Human rights protection is not confined to advocacy and lobbying or to provision of legal assistance. Immediate relief or other services help redress situations of abuse and uphold the dignity of persons. NGOs are often originated by specific services that need to be provided and maintain this approach as the main purpose of their operation. In addition, governments and international organizations have come to realize in recent years that NGOs are more effective in delivering services than public institutions. Areas in which NGOs are actively providing services to migrants include shelter, counseling, referral, livelihood programs, health care. More attention is needed for training and skill development and for providing alternative employment opportunities and reabsorption programs to returning migrants. In some countries, like the Philippines, NGOs are called to a closer cooperation with the Government, particularly in the educative effort. Organization and Networking Like NGOs in other areas of concern, migrant NGOs are often small organizations, with scarce means and loose contacts. The mushrooming of new appellations and acronyms often reflects the need to maintain visibility, rather than indicating additional services provided. Yet, organizing at the national and international levels is necessary if protection to migrants is to be assured. Such organizing, however, has to be credible, and built from the bottom up. Steps to be taken toward it include:

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a. Compile a directory of NGOs for migrants. This task will be undertaken by the Scalabrini Migration Center in two phases: (1) names and addresses of NGOs will be collected at the national level of the Asian region; (2) a questionnaire will be distributed to all NGOs for additional information concerning purpose, activities and other relevant information. b. Encourage national organizing, with respect for individual autonomy, for formation of a national agenda, constantly updated. Where possible, establish an integrated structure to house NGO activities. c. Forge new linkages, especially by bringing together unions, workers organizations, human rights organizations, legal support groups and consumer groups. d. Refine the NGO regional agenda in a future meeting of representatives.