Contents

Introduction ..................................................................................................................................... 2
Chapter 1 ......................................................................................................................................... 3
History and Structure of The Convention ....................................................................................... 3
1.1 The drafting history of the Convention ..................................................................................... 4
1.2 Structure and Scope of the Convention .................................................................................... 4
Scope and definitions .................................................................................................................. 5
The principle of non-discrimination ............................................................................................ 6
Human rights of all migrants ....................................................................................................... 6
Other rights of migrant workers and members of their families who are documented or in a
regular situation ........................................................................................................................... 6
Provisions Applicable to Particular Categories of Migrant Workers and Members of their
Families ....................................................................................................................................... 6
The promotion of sound, equitable, humane and lawful conditions in connection with
international migration ................................................................................................................ 7
Application of the Convention .................................................................................................... 7
General and Final Provisions ...................................................................................................... 8
1.3 The Committee on Migrant Workers ........................................................................................ 8
Chapter 2 ......................................................................................................................................... 9
CMW Position in ASEAN .............................................................................................................. 9
1.1 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers ...... 9
1.2 ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers ..... 10
Conclusion .................................................................................................................................... 11
References ..................................................................................................................................... 11
 Introduction

The Migrant Workers Convention came into force on 1 July 2003 after years of discussion of
migrants’ rights since the early 1970s within the international community. A Working Group,
established in 1980, finalised the Convention in 1990. On 18 December 1990, the Migrant Workers
Convention was adopted by the General Assembly and opened for signature to all Member States
of the United Nations.1 It currently has 58 States Parties .2

_________________________________________________________

1. https://www.parliament.gov.fj/wp-content/uploads/2019/04/Written-Analysis-for-ICMW.pdf

2. Albania, Argentina, Algeria, Azerbaijan, Bangladesh, Belize, Benin, Bolivia, Bosnia and Herzegovina, Burkina Faso, Cape Verd
, Chad, Chile, Colombia, Congo, Ecuador, Egypt, El Salvador, Fiji, Gambia, Ghana, Guatemala, Guinea, Guinea-Bissau, Guyana,
Honduras, Indonesia, Jamaica, Kyrgyzstan, Lesotho, Libya, Madagascar, Malawi, Mali, Mauritania, Mexico,
Morocco, Mozambique, Nicaragua, Niger, Nigeria, Paraguay, Peru, Philippines, Rwanda, Senegal, Seychelles, Sri Lanka, Syria,
Saint Vincent and the Grenadines, Syrian Arab Republic, Tajikistan, Timor-Leste, Togo, Turkey, Uganda, Uruguay, Venezuela .

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 Chapter 1

History and Structure of The Convention

The Migrant Workers Convention is one of the core international human rights treaties. It is the first
international instrument to provide specific recognition of the fundamental human rights of all
migrant workers and members of their families. It aims to unify the international legal standards of
protection for migrant workers and members of their families and protects the rights of all migrants
including those who are in an irregular situation. It safeguards against discriminatory treatment, and
expands the non-discrimination provisions found in other international human rights instruments,
as it also prohibits discrimination on the basis of additional grounds, such nationality and economic
position.1

Like all other international human rights instruments, the Convention sets standards for the laws and
the judicial and administrative procedures of individual States. Governments of States that ratify or
accede to the Convention undertake to apply its provisions by adopting the necessary measures.
They also undertake to ensure that migrant workers whose rights have been violated may seek an
effective remedy. This chapter contains:

the drafting history of the Convention and

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1 https://www.amnesty.org/en/documents/pol33/006/2007/en/

2.https://www.refworld.org/topic,50ffbce51b1,50ffbce51e1,479477420,0,OHCHR,,.html

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1.1 The drafting history of the Convention
The drafting of the Convention began in 1980, after the United Nations General Assembly established an
Open-ended Working Group to draft an inter- national instrument for the promotion and protection of the
rights of migrant workers. Membership of the Working Group was open to all UN member States and it
benefited of the cooperation of the UN Commission on Human Rights, the UN Commission for Social
Development, ILO, UNESCO and WHO. The Working Group met annually during General Assembly
sessions and after ten years of negotiations produced the text of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families. The Convention was
adopted without a vote and opened for signature pursuant to General Assembly resolution 45/158, on 18
December 1990.
The Convention does not stand in isolation but on the one hand complements internationally recognized
labour standards and on the other hand specifies the application of generally recognized human rights
standards to migrant workers and their families. The Convention protects the human rights of migrant
workers at all stages of the migration process, in the country of origin, the country of transit and the
country of employment, by imposing ensuing obligations on States parties.3

1.2 Structure and Scope of the Convention

The Convention seeks to establish minimum standards that States parties should apply to migrant
workers and members of their families, irrespective of their migratory status. The rationale behind
the recognition of rights of undocumented migrant workers is also reaffirmed in the preamble, in
which the States parties consider, inter alia, that irregular migrants are frequently exploited and face
serious human rights violations and that appropriate action should be encouraged to prevent and
eliminate clandestine movements and trafficking in migrant workers while at the same time ensuring
the protection of their human rights. The Convention comprises of 93 articles and is divided into
nine Parts which cover a broad range of aspects.

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3.Refugee Survey Quarterly Vol. 24, No. 4, MIGRANTS AND REFUGEES: THE CHALLENGE OF IDENTITY AND INTEGRATION:
The Tenth Annual Humanitarian Conference of Webster University, Geneva (2005), Published By: Oxford University Press

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The Convention consists of;

- Scope and definitions

- Non-discrimination with respect to rights

- Human rights of all migrants

- Other rights of migrants who are documented or in a regular situation

- Provisions applicable to particular categories of migrants

- The promotion of sound, equitable, humane and lawful conditions in connection with international
migration

- Application of the Convention

- General provisions

- Final provisions.4

Scope and definitions

Part 1 of the Convention covers Articles 1 to 6 which provide for the scope and definitions of various
terms used in the Convention. Article 1 of the Convention states that the Convention is applicable
to all migrant workers and members of their families without distinction of any kind such as 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.

Articles 2 and 4 provide general principles and definitions inter alia for terms such as migrant
worker, frontier worker, seafarer, work on an offshore installation, itinerant worker, project-tied
worker, specified-employment worker, self-employed worker and members of the family. It is
prudent to note that Article 5 of the Convention makes a distinction between documented or regular
migrants and non-documented or irregular migrants.5

_________________________________________________________

4.The International Convention on Migrant Workers and its Committee Fact Sheet No. 24 (Rev.1), UNITED NATIONS New York
and Geneva, 2005

5.https://www.parliament.gov.fj/wp-content/uploads/2019/04/Written-Analysis-for-ICMW.pdfWritten Analysic for ICMW, page 2,

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The principle of non-discrimination

Article 7 of the Convention provides that States parties should respect and ensure the rights
contained in the Convention without distinction of any kind such as 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.6

Human rights of all migrants

Part III of the Convention (arts. 8 to 35) grants a fairly broad series of rights to all migrant workers
and members of their families, irrespective of their migratory status. Many of these articles specify
the application to migrant workers of rights spelled out in the International Covenants on Civil and
Political Rights7 and on Economic, Social and Cultural Rights8 and the other core human rights
treaties.

Other rights of migrant workers and members of their families who are documented or in
a regular situation

Part 4 of the Convention covers Articles 36 to 56 of the Convention which provides for other rights
of migrant workers and members of their families who are documented or in a regular situation.
Some of these rights include the right to be fully informed by the State of origin or the State of
employment, as appropriate, of all conditions applicable to their admission and particularly those
concerning their stay and the remunerated activities in which they may engage as well as of the
requirements they must satisfy in the State of employment and the authority to which they must
address themselves for any modification of those conditions.

Provisions Applicable to Particular Categories of Migrant Workers and Members of their

Part 5 of the Convention covers Articles 57 to 63 of the Convention which provides for specific
rights for certain types of migrant workers and their families in particular for frontier workers,
seasonal workers, itinerant workers, project tied workers, specified-employment workers, and self-
employed workers that are documented and in a regular situation.

_________________________________________________________

6.The International Convention on Migrant Workers and its Committee Fact Sheet No. 24 (Rev.1), UNITED NATIONS New York
and Geneva, 2005
7.See, for instance, the Convention’s provisions on the right to life (art. 9), the prohibition of torture (art. 10), the prohibition of
slavery and forced labour (art. 11), the right to liberty and security of person and to procedural guarantees (arts. 16–19 and 24), the
right to freedom of opinion, expression, thought, conscience and religion (arts. 12–13), prohibition of arbitrary interference with
privacy, home correspondence and other communications and prohibition of arbitrary deprivation of property (arts. 14– 15).
8.For instance, the right to just and favourable conditions of work and to rest and leisure (art. 25), the right to social security (art.
27) and the right to education (art. 30)

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The promotion of sound, equitable, humane and lawful conditions in connection with
international migration

Part 6 of the Convention covers Articles 64 to 71 which advocates for State Parties to the Convention to
consult and cooperate to ensure that migrant workers and their families are subjected to sound, equitable,
humane and lawful conditions. It is prudent to note that under Article 67 of the Convention, States Parties to
the Convention concerned shall cooperate as appropriate in the adoption of measures regarding the orderly
return of migrant workers and members of their families to the State of origin when they decide to return or
their authorization of residence or employment expires or when they are in the State of employment in an
irregular situation.

Furthermore, under Article 71 of the Convention, States Parties to the Convention must facilitate when
necessary the repatriation to the State of origin the bodies of deceased migrant workers or members of their
families. In relation to compensation matters relating to the death of a migrant worker or a member of his or
her family, States Parties must as appropriate, provide assistance to the persons concerned with a view to the
prompt settlement of such matters. Settlement of these matters will be carried out on the basis of applicable
national law in accordance with the provisions of the present Convention and any relevant bilateral or
multilateral agreements.

Application of the Convention

Part 7 of the Convention covers Articles 72 to 78 which establishes the Committee on the Protection of the
Rights of All Migrant Workers and Members of Their Families (Committee) and provides for rules of
procedure. The Committee comprises of fourteen elected experts in the field covered by the Convention
serving in their respective personal capacities.

Under Article 73 of the Convention, States Parties must submit to the Secretary General of the United Nations
(Secretary-General) for the Committee’s consideration, reports on the legislative, judicial, administrative and
other measures they have taken to give effect to the provisions of the Convention. The report is to be
submitted within a year after the entry into force of the Convention for the State Party concerned, every five
years thereafter and whenever the Committee so requests. Following submissions, the Committee will
examine the report and may provide the State Party with its comments or request supplementary information.
States Parties will also be given opportunities to provide their observations to the comments made by the
Committee.9

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9.https://www.parliament.gov.fj/wp-content/uploads/2019/04/Written-Analysis-for-ICMW.pdf Written Analysic for ICMW, page 3,

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It is prudent to note that under Article 77, States Parties to the Convention may at any time make a declaration
under Article 77 that it recognizes the competence of the Committee to receive and consider communications
from or on behalf of individuals subject to its jurisdiction who claim that their individual rights as established
by the present Convention have been violated by that State Party. No communication shall be received by
the Committee if it concerns a State Party that has not made such a declaration. Given that Fiji will not make
the declaration that recognizes the competence of the Committee, Fiji will not be bound to the provisions of
Article 77 of the Convention.

General and Final Provisions

Part 8 of the Convention covers Articles 79 to 84 and provides for general provisions. Part 9 of the Convention
covers Articles 85 to 93 and provides inter alia for procedures in relation to any entry into force for States
ratifying or acceding to the Convention.10

1.3 The Committee on Migrant Workers

The Committee on the Protection of the Rights of All Migrant Workers and Members of their
Families (CMW) is the body of 14 independent experts that monitors implementation of
the International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families by its State parties. It held its first session in March 2004.Its responsibilities
include:

 Examining reports from States parties, and making recommendations on the topic of
migrant workers and members of their families in that State (articles 73 and 74 of the
Convention);
 Organizing days of general discussion;
 Interpretations of the content of the substantive provisions in the Convention (general
comments) and publishing statements and information or guidance notes on themes related
to its mandate.

The Committee will also, under certain circumstances, be able to consider inter-State or individual
complaints or communications from States parties or from individuals who claim that their rights
under the Convention have been violated, once 10 States parties have accepted these procedures
in accordance with articles 76 and 77 of the Convention.11 The CMW generally holds sessions two
times a year in Geneva, Switzerland.12

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10.https://www.parliament.gov.fj/wp-content/uploads/2019/04/Written-Analysis-for-ICMW.pdf Written Analysic for ICMW, page
3, 2.13
11. https://www.ohchr.org/en/treaty-bodies/cmw/membership
12.https://ijrcenter.org/un-treaty-bodies/committee-on-migrant-workers/

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 Chapter 2

CMW Position in ASEAN

ASEAN, as a regional integration cooperation deals with migration. Each ASEAN member state
(AMS) acts as either sending countries, or receiving countries, or both. Undeniably, ASEAN have
their own legal instruments in handling migrant workers, notably the ASEAN Declaration on the
Protection and Promotion of the Rights of Migrant Workers 2007 and ASEAN Consensus on the
Protection and Promotion of The Rights of Migrant Workers 2017. Only Indonesia and the
Philippines are parties to the Convention.1 The Philippines and Indonesia have a long history of
sending workers not only to ASEAN member countries but to other countries as well.

1.1 ASEAN Declaration on the Protection and Promotion of the Rights of

The ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers
(hereinafter referred to as the Declaration) was adopted in 2007, and it is particularly significant
because it calls on both origin and destination countries to promote migrant workers' full potential
and dignity. The Declaration recognises the significant contributions of migrant workers to society
and economies in both host (receiving) and sending states in ASEAN and recognises the
importance of cooperation between states in resolving cases of migrant workers who have become
undocumented due to no fault of their own.
The ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and
Promotion of Migrant Workers' Rights (AICMW) developed its action plan in 2008. Four areas of
cooperation were mentioned in this work plan. The first was aimed at promoting best practises and
enhancing the distribution of information. The second objective was to advance the rights of
migratory workers through improved labourmigration governance. The third focused on human
trafficking in relation to the issue of migratory workers. The fourth was devoted to the
establishment of ASEAN-wide norms. The 2007 ASEAN Declaration on the Protection and
Promotion of the Rights of Migrant Workers and the 2008 Action Plan laid the groundwork for
ASEAN member nations' policies on migrant workers. 2
_________________________________________________________
1 Cambodia is NOT a party to the ICMW. It is a signatory only. But it has NOT RATIFIED the Convention Available at
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4 accessed on 5 July 2021

2 Hatsukano, Naomi. "Improving the regulatory and support environment for migrant workers for greater productivity,
competitiveness, and social welfare in ASEAN." ERIA discussion paper series). Jakarta, Indonesia: Economic Research Institute
for ASEAN and East Asia (2015). ERIA Discussion Paper Series. ERIADP-2015-76.

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1.2 ASEAN Consensus on the Protection and Promotion of the Rights of
Migrant Workers

Ten years after the ASEAN Declaration on the Promotion and Protection of Migrant Workers was
adopted in February 2007 during the Philippines' chairmanship of ASEAN, the ASEAN heads of
state/government signed the ASEAN Consensus on the Promotion and Protection of Migrant
Workers 2017 – a document aimed at implementing the Declaration's commitments. The mere fact
that ASEAN's labour-sending and laborreceiving countries have reached an agreement on a difficult
issue after nearly eight years of negotiation is a relief. It was delivered in paragraph 22 of the 2007
Declaration, which called for the development of an ASEAN instrument to advance the
Declaration's principles and tasked the ASEAN Secretary-General with submitting an annual report
to the Summit via the ASEAN Foreign Ministers on the status of implementing the Declaration's
commitments. Although negotiations for a regional instrument began in 2009 with the goal of
developing a legally binding instrument, the ASEAN Consensus lacks legal force and will not need
member nations to adopt the text on a national level before it can be implemented. Rather than that,
it carries a moral obligation on national governments to implement steps that address the document's
commitments. This may not satisfy both the sending and receiving governments, as well as the civil
society and stakeholder organisations involved in the negotiations. The paper reflects the nature of
agreement-making in an ASEAN context and hence represents the negotiated compromise that
ASEAN states are willing to accept now.

Chapter 7 of the document emphasises that ASEAN member states' pledges shall be "consistent with
national laws, regulations, and policies.". The ASEAN Consensus establishes who qualifies as a
migrant worker and who is considered undocumented in ASEAN. This distinction is deemed critical
because ASEAN member states are obligated to give social protection and other benefits to migrant
workers. The inclusion of undocumented workers and their families in the scope of access to shelter,
medical, and legal services was one of the negotiation's sticking points. However, the document's
negotiating process exemplifies inclusive participation in regional policy discussions. Established
in 2008, the ASEAN Forum on Migrant Labor (AFML)3 as a broad-based platform for discussing
migrant labour issues within the framework of the ASEAN Senior Labour Officials, is the first of
its kind for a regional organisation, and should continue to serve as a forum for discussing national-
level implementation progress as well as issues and concerns affecting migrant workers in ASEAN.4
________________________________________________________

3. The 1st meeting of the Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights
of Migrant Workers (AICMW) was held from 15 to 16 September 2008 in Singapore. The meeting adopted its work plan with four
areas of cooperation. Under thrust 2, which pertains to strengthening protection and promotion of the rights of migrant workers by
enhancing labour migration governance in ASEAN Countries, one of the recommended activities was to organize an “ASEAN Forum
on Migrant Labour. The 1st AFML was held with the Department of Labor and Employment, Philippines from 24 to 25 April, 2008
in Manila, Philippines. Available at https://www.ilo.org/asia/WCMS_214213/lang--en/index.htm [Accessed on 5 July 2021].

4. Moe, T. (2017). “The ASEAN “Consensus” on Migrant Workers: Not Ideal but a Basis to Continue Working”. Available at
https://www.iseas.edu.sg/media/commentaries/the-asean-consensus-on-migrantworkers-not-ideal-but-a-basis-to-continue-working-
by-moe-thuzar/ [Accessed on 5 July 2021

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 Conclusion

The positive contribution that migrant workers and their families can make to the economic, social,
cultural and political development of countries of employment receives relatively little attention
in contrast to the extensive discussion on the impact of international labour migration on
development in countries of origin. Therefore, by increasing awareness of the importance of the
protection of the rights of all migrant workers and their families to the former process in terms of
their integration, preventing the marginalisation and social exclusion of irregular migrants in
particular and underscoring the place of inter-State cooperation and dialogue in helping to
safeguard these rights and in promoting inter alia sound, equitable, humane and lawful conditions
for international labour migration, the ICMW should be considered as an integral element in the
multifaceted discourse on migration and development. Furthermore, the increased attention
devoted during the Day of General Discussion to the role migrant workers and their families play
in the development of countries of employment and the importance of the protection of their human
rights in this regard will also assist in highlighting the central place of human rights in the
sustainable development of all countries in the labour migration process.

References

AMNESTY INTERNATIONAL Questions and Answers, Q&A: the Migrant Workers Convention

The International Convention on Migrant Workers and its Committee Fact Sheet No. 24 (Rev.1)

INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL

HasanuddinLawReview Volume 7 Issue 3, December 2021 P-ISSN: 2442-9880, E-ISSN: 2442-

Moe, T. (2017). “The ASEAN “Consensus” on Migrant Workers: Not Ideal but a Basis to Continue
Working”. Available at https://www.iseas.edu.sg/media/commentaries/the-asean-consensus-
onmigrant-workers-not-ideal-but-a-basis-to-continue-working-by-moe-thuzar/ [Accessed on 5 July
2021}

11