Document Type

Migration Policy Briefs

Publication Date

9-2006

Department

Balsillie School of International Affairs

Abstract

In recognition of the need to explicitly define and uphold the rights of migrants, and in particular migrant workers and their families, the United Nations General Assembly approved the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) on 18 December 1990 (Appendix A).

The significance of the Convention has been identified as follows:

  • Migrant workers are viewed as more than labourers or economic entities. They are social entities with families and accordingly have rights, including that of family reunification.
  • The Convention recognizes that migrant workers and members of their families, being in countries where they are not citizens, are often unprotected. Their rights are often not addressed by the national legislation of receiving states or by their own states of origin. Therefore, it is the responsibility of the international community, through the UN, to provide measures of protection.
  • The Convention provides, for the first time, an international definition of migrant worker, categories of migrant workers, and members of their families. It also establishes international standards of treatment that would serve to uphold basic human rights of other vulnerable migrants as well as migrant workers.
  • Fundamental human rights are extended to all migrant workers, both documented and undocumented, with additional rights being recognised for documented migrant workers and members of their families, notably equality of treatment with nationals of states of employment in a number of legal, political, economic, social and cultural areas.
  • The Convention seeks to play a role in preventing and eliminating the exploitation of all migrant workers and members of their families, including an end to their illegal or clandestine movements and to irregular or undocumented situations.
  • The Convention attempts to establish minimum standards of protection for migrant workers and members of their families that are universally acknowledged. It serves as a tool with which to encourage those States lacking national standards to bring their legislation in closer harmony with recognized international standards.

The decision of the UN to draft and adopt this convention was a strong statement of international consensus concerning the need for greater protection of the rights of migrant workers and their families. To date, 34 countries have ratified and a further 15 countries have signed the convention, but a study of the ratifications and signatures suggests that it is in the main developing countries and those traditionally regarded as 'sending' countries that have done so. In addition, from the African continent, there are only 13 ratifications and 8 signatures. Of these, only two countries; namely, Seychelles and Lesotho are member states of the Southern African Development Community (SADC).

In order to better understand the relevance of the Convention to South Africa, it is necessary to examine the history of the ICMW and why other countries have been so hesitant to ratify it. Second, it is necessary to provide an overview of migrant rights in South Africa. If migrant rights are already sufficiently protected then ratification should present no obstacle to the South African government. The purpose of this policy brief is therefore to raise awareness of the Convention in South and Southern Africa and to examine the response of the South African government to ratification. SAMP will examine the position of other SADC states in future studies. The brief is organized as follows:

  • background on the origins and content of the Convention
  • summary of the attitudes of other states to ratification of the Convention
  • analysis of why the South African government has not signed or ratified the Convention and
  • identify the specific obstacles to ratification in the South African context.

The brief concludes with a set of recommendations and proposed strategies to promote ratification by the South African government.

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