ARTICLE ON THE TOPIC:

RIGHTS OF MIGRANT WORKERS

BY: HARSHITA GUPTA (FIMT)

Capital and labour were main factors of production in the production procedures of industrial
revolution. Subsequently, producers or owners and workers were appeared in the private
economy. So far as welfare of the society is concerned, it was essential to maintain labour
standards for workers and provide them welfare amenities as per labour standards. Therefore, the
‘International Labour Organization’ was established in 1919, under the ‘treaty of Versailles’.
After the second war period, the ‘United Nations General Assembly’ adopted the ‘Universal
Declaration of Human Rights’. The most important fundamental international instrument
informing much social, economic and political polices of many developed and developing
countries in the world is the ‘Universal Declaration of Human Rights’, December 10, 1948.
However, the human rights have been incorporated in the constitutions of many countries in the
world. According to ‘International Labour Organization’s’ doctrines and rights at work, essential
rights are important for working class in the in the world economy. India is evolving and is a
developing country. India embraced new economic policy in 1991, which is known as
liberalization, Privatization and Globalizations (LPG). In the period of globalization, it is needed
to discuss relevant aspects of labour standards and labour rights, aspects of decent work in
respect of migrant workers in the emerging countries like India.

WHO IS A MIGRANT?

A migrant is “any person who lives temporarily or permanently in a country where he or she was
not born”1 Migrants leave one place for another in search of a respectable living or better
education, to escape persecution, or to be near to family or friends.

Migration is an antique and natural human reaction to starvation, deprivation, maltreatment,

1
United Nations Educational, Scientific and Cultural Organization, “Migrant”, http://www.unesco.org/
Some human rights bodies and experts distinguish between international migrants and internal
migrants, also known as internally moved persons, and between migrants who were forced to
move and migrants who voluntarily moved to improve their situation. Therefore, generally, there
are four types of mobile persons to which international law may refer: people who have moved
voluntarily within one State for the purpose of enlightening their situation, people who were
compelled to move internally within one State, people who moved voluntarily across a border for
the purpose of improving their situation, and people who were compelled to move across a
border. This guide defines migrants as those who cross borders either because they were
compelled to or because they chose to do so voluntarily.

The International Convention on the Protection of the Rights of Migrant Workers and Members
of their Families (ICRMW) defines migrant worker under Article 1 as “a person who is to be
engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she
is not a national.”2

RIGHTS OF A MIGRANT

In accordance with international human rights standards, which are based upon the inherent pride
of every person, migrants enjoy the fundamental rights afforded to all persons irrespective of
their legal status in a State.

Right to Life

All migrants have a right to life, and States have a duty to safeguard that no migrant is arbitrarily
underprivileged of this right. States should prosecute right to life violations, including
extrajudicial killings that take place during a migrant’s journey from the country of origin to the
country of destination and vice versa. States also have a duty to alleviate loss of life during land
and sea border crossings.

Equality and Non-Discrimination

International human rights law promises freedom from discrimination in the enjoyment of human
rights for all people, including migrants. Article 2(2) of the International Covenant on Economic,

2
Adopted on 18 December 1990, entered into force on 01 July 2003
Social and Cultural Rights states, “The States Parties to the present Covenant undertake to
guarantee that the rights articulated in the present Covenant will be practiced without
discernment of any kind as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.”3

Protection against Arbitrary Arrest and Detention

Individuals, including migrants, should not be subjected to arbitrary arrest or detention under
international human rights law. A State must not subjectively arrest and detain an individual, and
the State must show that other less intrusive measures besides detention have been considered
and found to be insufficient to prove detention is not arbitrary. The prolonged detention of a
migrant is not justified simply by the need to wait for an entry permit or until the end of removal
proceedings when reporting duties or other requirements would be less intrusive measures to
ensure that the migrant’s condition complies with domestic law. 

Protection against Torture or Inhuman Treatment

The prohibition of torture is a ‘jus cogens’ or dictatorial standard of international law, which
means that States have an obligation to enforce the prohibition of torment even if that State has
not ratified a relevant treaty. Additionally, Article 2(2) of the Convention against Torture states
that a State may never cite exceptional circumstances, including war or a public emergency, to
justify torture.

Family Rights

International human rights norms require States to consider migrants’ family life and their family
members in decisions regarding their admission, detention, or exclusion. For example, the
ICRMW obligates States parties to “pay attention to the problems that may be posed for
members of his or her family, in particular for spouses and minor children” when a migrant
worker is detained and to “take appropriate measures to ensure the protection of the unity of the
families of migrant workers.”

Protection against Labour Exploitation

3
Adopted on 16 December 1966, came into force on 3 January 1976, 993 UNTS 3, art. 2(2)
Migrants are protected against labour exploitation under ILO conventions, the ICRMW, and
other major human rights treaties. Article 11 of the ICRMW openly forbids forced labour,
slavery, and servitude. Article 8 of the International Covenant on Civil and Political Rights states
that no one shall be held in slavery or servitude. States have an obligation to take actions to
prevent all forms of forced or compulsory labour by migrant workers, which includes eliminating
the use of illegal imprisonment and withholding travel documents as a means to force migrants
into compulsory labour.4

Right to Social Security 

Article 27 of the ICRMW outlines the right to social security and notes that all migrant workers
and their families, regardless of their status, have the right to obtain the same treatment as
nationals “insofar as they fulfil the requirements provided for by the applicable legislation of that
State and the applicable bilateral and multilateral treaties.” If migrants are not qualified for a
particular benefit, States have an obligation to determine whether it is possible to reimburse
individuals who have made contributions with respect to that benefit.

Right to Primary Education

States have an obligation to provide free and compulsory primary education at public institutions
for all children. Article 30 of the ICRMW expands on this obligation, noting that States may not
refuse or limit a child’s access to public pre-school educational institutions or schools based on a
parent’s or child’s irregular situation.

Freedom of Movement

Migrants have the right to freedom of movement within the territory of the State in which they
are located, the right to leave a State, and the right to return home to their own State. Restrictions
to the right to leave a State or to freedom of movement in a State of residence must be provided
by law and necessary to achieve a legitimate aim, and if a migrant wishes to return to her own
State, another State cannot arbitrarily prevent her from doing so.

CASE LAW

Good v. Botswana5
4
ILO Forced Labour Convention (No. 29), art. 11; General Comment No. 2
5
Communication No. 313/05, 47th Ordinary Session, Judgment of 26 May 2010.
The African Commission on Human and Peoples’ Rights held that the inability to challenge an
order of removal in the judicial system is a violation of the right to fair trial and right of non-
nationals to be expelled according to the law. The complainant is a national of Australia who was
working in Botswana when the President ordered him removed from the country after he wrote
and published an article critical of the government. National legislation prohibited the domestic
courts from hearing an appeal of an executive order of removal. The African Commission found
violations of articles 7(1) and 12(4) of the African Charter on Human and Peoples’ Rights, which
guarantees the right to have one’s cause heard by a competent tribunal and the right of non-
nationals to only be expelled in accordance with the law. Moreover, because the deportation
orders, which were carried out the same day as the court’s ruling that it could not hear the
complainant’s case, did not take into account the complainant’s family and the mutual support
they derive from one another, the removal of the complainant violated his right to family life
under Article 18.

REFERNCES

ILO, Migration, Human Rights and Governance: Handbook for Parliamentarians (2015).

https://ijrcenter.org/thematic-research-guides/immigration-migrants-rights/

http://www.oit.org/legacy/english/protection/travail/pdf/rdwpaper22a.pdf