Opinion of the European Economic and Social Committee on the ‘International Convention on Migrants’
Date: 2004-06-30
Institutions: European Economic and Social Committee
Subjects: EU migration policy, human rights, international convention, labour law, migrant worker

7.12.2004

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the ‘International Convention on
Migrants’

(2004/C 302/12)

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’.

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 rati-
fied the convention (1). As such, it is a fully enforceable interna-
tional treaty that must be upheld by the states' parties.

The aim of the convention is to protect the human
1.2
rights and dignity of people across the globe who emigrate for
economic or employment-related reasons by means of appro-
priate legislation and good national practice. The common
legislation on migratory policies
basis for such international
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.

This convention is one of seven international United
1.3
Nations treaties governing human rights.
It recognises that
certain basic human rights, as defined in the Universal Declara-
tion of Human Rights, must be guaranteed internationally for
all migrant workers and their families. It codifies in a compre-
hensive and universal manner the rights of migrant workers
and their families on the basis of the principle of equality of
It sets out those rights that must be granted to
treatment.
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 (2) by extending the legal framework to all immigra-
tion worldwide, promoting just treatment for immigrants and
striving to prevent exploitation of irregular immigrants. It looks

(1) Azerbaijan, Belize, Bolivia, Bosnia-Herzegovina, Burkina Faso, Cape
Verde, Colombia, East Timor, Ecuador, Egypt, El Salvador, Ghana,
Guatemala, Guinea, Krygyzstan, Mali, Mexico, Morocco, Philippines,
Senegal, Seychelles, Sri Lanka, Tajikistan, Uganda, Uruguay.
(2) Convention No. 97 of 1949 and Convention No. 143 of 1975.

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.

The individual

states are responsible for managing
1.5
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 eradi-
cate 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 (3).

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
physical
including slavery (Articles 10, 11, 25, 54);

inhuman living
abuse

and working
and degrading

and sexual

conditions,
treatment

(3) According to the International Organisation for Migration, 175
million people currently live in a country other than their country
of birth or nationality.

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— guaranteeing the rights of

immigrants

to freedom of

thought, expression and religion (Articles 12, 13);

2.5
the
It establishes a Committee on the Protection of
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.

— 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).

The convention is based on the fundamental principle of
2.3
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.

3. The countries of the west have still not ratified the

convention

International immigration is a consequence of the major
3.1
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 immi-
grants. 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 (1), have as yet neither ratified nor signed (2) the
convention.

3.2
The European Union, which is keen to establish interna-
tional 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 (3). Despite this, various
experts, including the European Monitoring Centre on Racism
and Xenophobia (4), have reported discrimination suffered by
migrants in terms of their working conditions.

(1) 55 % of the world's immigrants live in North America and western

Europe.

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) The signatory states are states that have indicated their desire to join
the convention in the future, such as Chile, Bangladesh, Turkey,
Comoros, Guinea-Bissau, Paraguay, São Tomé and Principe, Sierra
Leone, and Togo.

(3) Directive 2000/43 and Directive 2000/78.
(4) Directive 2000/43 and Directive 2000/78.

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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 immi-
gration 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 poli-
cies to promote integration and prevent discrimination.

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.

4.4
The Commission has drawn up numerous legislative
proposals which have, however, met with considerable resis-
tance within the Council (1). Four years on, the results are
meagre: the legislation that has been adopted is disappointing
and has moved away considerably from the Tampere objec-
tives, 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.

The European Economic and Social Committee has
4.5
called upon the Council through a series of opinions to act
responsibility and adopt a more constructive
with greater
approach based on enhanced cooperation.
is becoming
increasingly necessary for
the European Union to have
adequate common legislation enabling it to manage immigra-
tion in a legal and transparent manner.

It

The EESC has drafted several opinions (2) in which it
4.6
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 traf-
ficking of people is stopped.

In the light of the above, the approval of the Directive
4.7
on the conditions for entry, residence, and access to employ-
ment of
immigrants, which is based on the Commission
proposal (3) and takes account of the opinion of the EESC (4), is
now a matter of urgency.

4.8
The Thessaloniki European Council welcomed the
Commission's Communication on immigration, integration and
employment (5), 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.

(1) As far back as 1994 the Commission, in its White Paper on Euro-
pean social policy (COM(1994) 333 final), recommended that the
Member States ratify the convention.

(2) See the EESC opinions on family reunification, OJ C 204 of
18.7.2000 and OJ C 241 of 7.10.2002; on the Communication
from the Commission on a Community immigration policy, OJ C
260 of 17.9.2001; on the status of long-term residents, OJ C 36 of
8.2.2002; on the conditions for entry and residence for the purpose
of paid employment, OJ C 80 of 3.4.2002; on a common policy on
illegal immigration, OJ C 149 of 21.6.2002; on the conditions of
entry and residence for purposes of studies, vocational training or
voluntary service, OJ C 133 of 6.6.2003; and on access to European
Union citizenship, OJ C 208 of 3.9.2003.

(3) Cf. OJ C 332 of 27.11.2001.
(4) Opinion of the EESC in OJ C 80 of 3.4.2002 (rapporteur Mr Pariza

Castaños).

(5) Communication from the Commission COM(2003) 336 final and
the EESC in OJ C 80 of 30.03.2004 (rapporteur

opinion of
Mr Pariza Castaños).

5. The global values of the European Union

5.1
Of late, the United States has been developing a unilat-
eral 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 inter-
national 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 Constitu-
tional Treaty will consolidate this external policy mandate as
one of the Community's tasks.

The European Union's external relations are based on
5.3
multilateralism and active compromise within the United
Nations. In a recent document (6) 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 interna-
tional 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’.

Globalisation is generating new opportunities and new
5.4
for global governance (7). At present, migration
problems
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 insti-
tutions established by the international community and univer-
sally recognised.

(6) COM(526) 2003, ‘The European Union and the United Nations: The

choice of multilateralism’.

(7) ‘ Coping with globalisation – the only option for the most vulner-

able’

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5.5
As Kofi Annan, Secretary-General of the United Nations,
said at the European Parliament on 29 January 2004, interna-
tional cooperation is the best approach to managing the rising
‘Only through
international migration of the coming years.
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 effec-
tively; 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.

Article 7 of the draft Constitution for Europe advocates
5.7
the accession of the European Union to the European Conven-
tion for the Protection of Human Rights and Fundamental Free-
doms. The EESC supports this. The EESC also backs the inclu-
sion 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 crea-
tion of a common judicial body for the worldwide protection

Brussels, 30 June 2004.

of the basic rights of all people, irrespective of national origin
and place of residence, on the basis of the international conven-
tions 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 Euro-
pean 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 facili-
the Commission should carry out a study
tate ratification,
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 Commis-
sion in promoting ratification.

The President

of the European Economic and Social Committee

Roger BRIESCH