On
29 January 2004 the European Economic and Social Committee decided, under
Article 29(2) of its Rules of Procedure, to draw up an opinion on the
International
Convention on Migrants
(Own-initiative
opinion).
The
Section for Employment, Social Affairs and Citizenship, which was responsible
for preparing the Committee’s work on the subject, adopted its opinion on 14
June 2004. The rapporteur was Mr Pariza Castaños.
At
its 410th plenary session (meeting of 30 June 2004), the European
Economic and Social Committee adopted the following opinion by 162 votes to
three with 11 abstentions.
1.
Introduction
1.1
The
convention was adopted by the General Assembly of the United Nations in its
resolution No. 45/158 of 18 December 1990. It entered into force on 1 July 2003
following ratification by the first 20 states. Thus far, 25 states have
ratified the convention. As such, it is a fully enforceable international treaty that must
be upheld by the states' parties.
1.2
The
aim of the convention is to protect the human rights and dignity of people
across the globe who emigrate for economic or employment-related reasons by
means of appropriate legislation and good national practice. The common basis
for such international legislation on migratory policies should be the
promotion of democracy and human rights. The Convention also safeguards the
balance between the different situations in both countries of origin and host
countries.
1.3
This
convention is one of seven international United Nations treaties governing
human rights. It recognises that certain basic human rights, as defined in the
Universal Declaration of Human Rights, must be guaranteed internationally for
all migrant workers and their families. It codifies in a comprehensive and universal
manner the rights of migrant workers and their families on the basis of the
principle of equality of treatment. It sets out those rights that must be
granted to immigrants who are in a regular and an irregular situation, setting
down minimum standards of protection in terms of civil, economic, political,
social and employment rights and recognising that migrant workers must have
fundamental rights that are safeguarded in international rules.
1.4
This
convention further develops previous conventions of the ILO by extending the legal framework to all immigration worldwide,
promoting just treatment for immigrants and striving to prevent exploitation of
irregular immigrants. It looks at the migration process as a whole from
education, selection, departure, transit and residence in the country of
employment to return to and re-establishment in the country of origin.
1.5 The
individual states are responsible for managing migratory flows. The EESC
supports the view of the Secretary-General of the United Nations and advocates
better bilateral, regional and international cooperation between countries of
origin and host countries. The convention neither promotes nor manages
migratory flows, rather aims only to guarantee the universal recognition of
basic human rights and reinforce the protection thereof worldwide.
1.6 The
convention considers the possible administrative situations of migrants in
different ways: it guarantees for all individuals the protection of their basic
human rights, applying further-reaching rights to legal immigrants.
1.7 Through
this convention, the international community and the United Nations have
reasserted their desire to improve cooperation between states so as to prevent
and indeed eradicate the trafficking and clandestine employment of immigrants
who are in an irregular situation as well as to extend the protection of the
basic human rights of immigrants to the entire world.
2.
Immigrants’ rights
2.1
The
convention aims to guarantee equal treatment and the same legal conditions for
immigrant workers as for national workers. This implies:
– preventing inhuman living and working conditions, physical and
sexual abuse and degrading treatment including slavery (Articles 10, 11, 25,
54);
– guaranteeing the rights of immigrants to freedom of thought,
expression and religion (Articles 12, 13);
– recognising the rights of immigrants to privacy and personal
security (Articles 14, 15, 16);
– establishing access to effective legal assistance through fair legal
proceedings that guarantee the right to equality before the law and the right
to non-discrimination and during which appropriate legal procedures are applied
to the immigrant workers and interpreting services are provided (Articles 18,
19, 20);
– guaranteeing access for immigrants to information on their rights
(Articles 33, 37);
– guaranteeing equal access to education and social services for all
immigrants (Articles 27, 28, 30, 43 to 45, 54);
– recognising the right of immigrants to join and participate in trade
unions (Articles 26, 40).
2.2
The
convention also stipulates that immigrants must have the right to maintain ties
with their country of origin. This implies:
– ensuring that immigrants are able to return to their country of
origin should they wish and permitting them to make occasional visits and
maintain cultural links (Articles 8, 31, 38);
– guaranteeing the political participation of immigrants in their
country of origin (Articles 41, 42);
– safeguarding the right of immigrants to transfer income to their
country of origin (Articles 32, 46, 48).
2.3
The
convention is based on the fundamental principle of ensuring a minimum level of
protection for all immigrants. It considers the
two possible situations in which immigrant workers can find themselves (regular
and irregular), setting out a series of further-reaching rights for legal
immigrants and recognising some basic rights for irregular immigrants.
2.4
The
convention proposes that initiatives be undertaken to eradicate illegal
immigration, principally by eliminating the misleading information used to
entice people into irregular immigration and by imposing sanctions on
traffickers and employers of non-documented immigrants.
2.5
It
establishes a Committee on the Protection of the Rights of All Migrant Workers
and Members of their Families, consisting of ten experts to be appointed by the
states parties and who will oversee the application of the convention.
3.
The countries of the west have
still not ratified the convention
3.1
International
immigration is a consequence of the major economic and social inequality
between the rich countries of the north and the developing countries. This
inequality is deepening in the increasingly globalised economic system of
today. And yet, the majority of those countries that have thus far ratified the
convention are countries of origin of immigrants. The Member States of the
European Union, the United States of America, Canada, Australia, Japan and the
remaining countries of the western world, who play host to a great many
immigrants, have as yet neither ratified nor signed the convention.
3.2
The
European Union, which is keen to establish international rules in a host of
areas (in international trade within the WTO, in the environment through Kyoto,
and so on), must also ensure that the basic rights of immigrants are guaranteed
via such international norms.
4.
Immigration policy within the
European Union
4.1
The
European Union is an area in which human rights are upheld and protected and
most of the international legal instruments of the United Nations are applied.
The European Union also has its own instruments in this area, such as the
European Convention on Human Rights and the Charter of Fundamental Rights.
4.2
The
European Union has also developed a series of legal instruments to counter
discrimination. Despite this, various experts, including the European Monitoring
Centre on Racism and Xenophobia, have reported discrimination suffered by migrants in terms of
their working conditions.
4.3
Since
the European Council of Tampere, the European Union has been in the process of
drafting common legislation governing asylum and immigration. Tampere laid down
a sound political basis enabling the Union to harmonise its immigration and
asylum legislation and improve cooperation with third countries in order to
better manage migratory flows. Furthermore, in Tampere consensus was reached as
to the need to guarantee fair treatment for all individuals and develop
policies to promote integration and prevent discrimination.
4.4
The
Commission has drawn up numerous legislative proposals which have, however, met
with considerable resistance within the Council. Four years on, the results are meagre: the legislation that has
been adopted is disappointing and has moved away considerably from the Tampere
objectives, the proposals of the Commission, the opinion of the Parliament and
the stance of the EESC. The current system used within the Council to adopt
agreements allows proposals to be blocked. This, coupled with the attitudes of
some governments, makes it very difficult to achieve consensus.
4.5
The
European Economic and Social Committee has called upon the Council through a
series of opinions to act with greater responsibility and adopt a more
constructive approach based on enhanced cooperation. It is becoming
increasingly necessary for the European Union to have adequate common
legislation enabling it to manage immigration in a legal and transparent
manner.
4.6
The
EESC has drafted several opinions in which it urges the European Union to adopt a policy that will
ensure that economic immigration is processed through the right legal channels,
irregular immigration is prevented and illegal trafficking of people is
stopped.
4.7
In the light of the above, the
approval of the Directive on the conditions for entry, residence, and access to
employment of immigrants, which is based on the Commission proposal and takes account of the opinion of the EESC, is now a matter of urgency.
4.8
The
Thessaloniki European Council welcomed the Commission’s Communication on
immigration, integration and employment, in which it projects that labour migration into the European Union
will increase considerably over the coming years and that appropriate
legislation will therefore be required enabling immigration to be managed
within a legal framework. The Commission also states that integration policies
focusing on the migrant population and endeavouring to eliminate all forms of
exploitation and discrimination will be needed.
4.9
Some
national legislation on immigration does not fully tally with the applicable
international conventions on human rights, and some European Directives (on
family reunification for example) are even considered by various NGOs and by
the European Parliament to run contrary to basic human rights. The EESC
believes that the existing international conventions on human rights as well as
the EU Charter of Fundamental Rights should be the basis for the entire
European legislative structure in terms of immigration.
5.
The global values of the European
Union
5.1
Of
late, the United States has been developing a unilateral approach to governance
of international affairs. The entire system of the United Nations faces serious
problems as a result of this situation. As a result the only system that
currently exists within which to seek out multilateral solutions to international
conflicts based on cooperation is in danger.
5.2
The
European Union is, albeit with great difficulty, drawing up its own common
foreign policy within which the United Nations will play an essential role. The
future Constitutional Treaty will consolidate this external policy mandate as
one of the Community’s tasks.
5.3
The
European Union’s external relations are based on multilateralism and active
compromise within the United Nations. In a recent document the European Commission asserted that: “The challenge currently
facing the UN is clear: ‘global governance’ will remain weak if multilateral
institutions are unable to ensure effective implementation of their decisions
and norms – whether in the ‘high politics’ sphere of international peace and
security, or in the practical implementation of commitments made at recent UN
conferences in the social, economic and environmental fields. The EU has a
particular responsibility in this regard. On the one hand, it has made
multilateralism a constant principle of its external relations. On the other,
it could and should serve as a model to others in implementing – and even going
beyond – its international commitments”.
5.4 Globalisation
is generating new opportunities and new problems for global governance. At present, migration entails major problems both for the migrants
themselves and for the countries of origin and host countries. The challenge we
face is to transform these problems into opportunities for everyone, for
migrants, for countries of origin and for host countries. Multilteralism and
international cooperation are the route to good global governance, to a system
of rules and institutions established by the international community and
universally recognised.
5.5 As
Kofi Annan, Secretary-General of the United
Nations, said at the European Parliament on 29 January 2004, international
cooperation is the best approach to managing the rising international migration
of the coming years. “Only through cooperation – bilateral, region, and global
– can we build the partnerships between receiver and sender countries that are
in the interests of both; explore innovations to make migration a driver of
development; fight smugglers and traffickers effectively; and agree on common
standards for the treatment of immigrants and the management of migration”
5.6 Europe
is an area of freedom, democracy and respect for the human rights of all
people. In order to strengthen these values in the future, all the Member
States of the EU must ratify the international conventions that protect these
basic human rights and their legal precepts must be incorporated into both
Community and national legislation.
5.7 Article
7 of the draft Constitution for Europe advocates the accession of the European
Union to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. The EESC supports this. The EESC also backs the inclusion
into the Constitution of the Charter of Fundamental Rights of the Union, which
will create a common basis for the rights of all people inside the Union.
5.8 These
values must also become an integral part of the Union’s international
relations. Europe must promote the creation of a common judicial body for the
worldwide protection of the basic rights of all people, irrespective of
national origin and place of residence, on the basis of the international
conventions drawn up by the United Nations.
6.
EESC proposal
6.1
In
line with the opinions it has drawn up on European immigration policy and in
support of the opinion of the European Parliament, the European Economic and Social Committee would encourage the
Member States of the European Union to ratify the International Convention on
the Protection of the Rights of All Migrant Workers and Members of their
Families, which was approved by the General Assembly of the United Nations in
resolution No. 45/158 of 18 December 1990, and which entered into force on 1
July 2003.
6.2
The
EESC calls upon the President of the Commission and the current Presidency of
the Council to undertake the necessary political initiatives to ensure that the
Member States ratify this convention within the coming 24 months and that the
EU also ratify the convention when the Constitutional Treaty authorises it to
sign international agreements. To facilitate ratification, the Commission
should carry out a study analysing national and Community legislation relating
to the convention. Furthermore, the social partners and other civil society
organisations will join with the EESC and the Commission in promoting
ratification.
Brussels,
30 June 2004.
|
The President
of the
European Economic and Social Committee
Roger Briesch
|
The Secretary-General
of the
European Economic and Social Committee
Patrick Venturini
|
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