UN Migrant Workers' Convention Country Positions

BELGIUM

Question and Answers – House of Commons 2002 – 2003, bull. 3, nr. 23
Question nr 23 by mr. Yves Leterme on 10 September 2003-11-11
Labour migration – UN Convention 18 December 1990 – ratification

World Solidarity (Wereldsolidariteit Belgium) is holding an awareness raising campaign on the rights of migrant workers. The most important and concrete action is the demand for a ratification by our country of the UN Convention on Migrant Workers from 18 December 1990.

I would appreciate receiving the precise state of affairs with respect to the ratification by our country of the said Convention.

1. What is the state of affairs concerning the ratification by our country of the UN Convention of 18 December 1990?

2. What are the reasons why the ratification has not yet happened?

3. Did the coalition partners of the goverment make any political agreements with regard to the ratification?

4. What is your position regarding the ratification by our country of the afore mentioned UN Convention of 18 December 1990?

Answer:

1. To date, no initiatives were taken with the aim to sign or ratify this convention.

2. This position is based on the finding that the ratification of the text could entail serious legal problems. During the months following the ratification of the convention by the General Assembly of the United Nations, and in case our country would decide to sign and ratify the convention, my department held an extensive consultation with the concerned ministries. The conclusion was that, in this case, a number of departments expected serious difficulties because certain clauses in the convention contradict a number of aspects of Belgian law and regulations. This is the joint position of the Ministry of Justice (which at the time was responsible for the arrival and stay of foreigners in Belgium); the Ministry of Labour and the Ministry of Social Security. It should furthermore be noted that none of the members of the European Union have signed or ratified the convention (including those States who will join in May 2004).

3. There is no political agreement concerning the ratification of the convention.

4. The new fact of the coming into force of the Convention and the time since the acceptance, mean that new consultations with the concerned departments can be organised, with the aim to find whether or not they are still supporting their former complaints. Should they have no longer any complaints, then the signing and ratification could be considered within a more positive context.

The IMD Platform Flanders commissioned the following comparative study between the UN Migrant Workers Convention and the Belgian legislation (in Dutch, for the French version click here). The study was made by Prof. Foblets (KUL), Prof. Vanheule (U.Antwerpen) and Sander Loones. It was finalised on 10 November 2003. It shows that the obstacles to a Belgian ratification are very limited.

BRAZIL

During his January 2003 address to the Congress, President Lula da Silva, reaffirmed his commitment to the national human rights program, which was launched in 1996 by president Fernando Henrique Cardoso. The programme includes the ratification of the UN 1990 Convention.

CANADA

The government Canada responded on 9 April 2001 to our letter campaign for the promotion of the International Migrant's Day and the UN Convention.

They insisted that they are at the forefront in issues of concern to migrant workers, for ex., in their active participation in the drafting of the mandate of the Special Rapporteur on the Human Rights of Migrants at the 1999 UNCHR. Canada was also the first country to invite the Special Rapporteur. They welcomed her recommendations and encouraged other countries to do the same.

While the Convention has aims which they fully support, the Canadian government decided not to become party to the Convention, because it does not reflect the Canadian situation. The vast majority of persons who would be considered as migrant workers under the definition of the Convention enter Canada as permanent residents. By virtue of their status, such individuals enjoy legal rights and social benefits as Canadian citizens.

Canada does also admits temporary workers who do not have a permanent resident status. Therefore, the Canadian government find it inappropriate under existing Canadian laws to provide these people with rights such as the right to educational, housing and unemployment benefits.

They also argued that the human rights of migrants, whether they are in Canada permanently or temporally, are protected under the Canadian Charter of Rights and Freedoms and by virtue of the International Conventions they ratified. According to the Canadian Government, the Convention contains serious drafting flaws, including extra-territorial obligations, that States could not validly fulfill under existing international law. These drafting deficiencies may - again according the Canadian government - explain the fact that this Convention is not yet in force.

Canada also explains online why it does not want to ratify the Convention.

THE NETHERLANDS

References: Letter dated 29/11/2001 - BUZA 2001/111
Letter dated 27/08/2001 - DPC/AM - 294/01

The Dutch Government did not to-date ratify the UN Convention because they say that it is not compatible with their 'Linkage Law (Koppelingswet) that was made to exclude undocumented migrants from provided services. Their main problem is Part III that covers the rights of both documented and undocumented migrants, and in particular Article 27 that covers social security.

Article 27

1. With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfil the requirements provided for by the applicable legislation of the State and the applicable bilateral and multilateral treaties. The competent authorities of the State of origin and the State of employment can at any time establish the necessary arrangements to determine the modalities of application of this norm.

2. Where the applicable legislation does not allow migrant workers and members of their families a benefit, the States concerned shall examine the possibility of reimbursing interested persons the amount of contributions made by them with respect to that benefit on the basis of the treatment granted to nationals who are in similar circumstances.

During the meetings of the Working Group drafting the Convention, some countries expressed their concern about the concept of reimbursement of contributions with respect to benefits not enjoyed in the system of social security and about the definition of the term "social security" which is different from country to country. With regard to paragraph 1, the representative of The Netherlands was among those who suggested to eliminate in the original text the words "who are documented or are in a regular situation". Originally there was a more clear distinction included.

The complete discussions can be found in reports A/C.3/42/1 and A/C.3/42/6.

Some related remarks and proposals:

1987 - A/C.3/42/1: 255. At its 12th meeting a number of representatives stated that their delegations had difficulty with article 27, paragraph 1, as adopted on first reading. The representative of the Netherlands stated that in his country there were many social security schemes and that very often it was the schemes which were not based on contributory payments that were of the most importance to migrant workers and members of their families. He therefore raised the issue of the definition of the term "social security".

1987 - A/C.3/42/1: 256. The Chairman drew the attention of the Working Group to the near impossibility of defining the term "social security" which had many different meanings as contained in each national legislation. Consequently, he suggested that in order to avoid having the Working Group embark on the extremely complex task of finding a universally acceptable definition, the results of which would be doubtful, the Working Group would be better advised to adopt a very general provision which would serve the purposes of the convention. He added that such an effort might be futile and might furthermore go beyond the mandate of the Working Group.

1987 - A/C.3/42/1: 261. The representative of Italy stated that in the view of his delegation the difficulty with article 27 as it stood after first reading was that it dealt with both regular and irregular migrant workers. He supported the suggestion of the representative of the Federal Republic of Germany to transfer the paragraph to part IV.

1987 - A/C.3/42/1: 262. The Chairman recalled that in the past the Working Group had acknowledged the need to ensure benefits to migrant workers in an irregular situation if they were paying their contributions. He added that it would be worthwhile not to disregard that question provided that the Working Group decided that it was appropriate.

1987 - A/C.3/42/1: 263. The representative of Morocco stated that in the view of her delegation a migrant workers who was paying social security contributions should be able to enjoy such benefits.

1987 - A/C.3/42/1: 271. The representative of Finland expressed concern about the distinction made in the text as read out between documented and non-documented migrant workers. In his view, the article should contain the minimum standard applicable to all migrant workers. He suggested the deletion in paragraph 1 of the word "who are documented or are in a regular situation" and the addition of the words "in so far as they fulfil the requirements" between the word "nationals" and the phrase "in accordance with the applicable legislation of that State".

1987 - A/C.3/42/1: 277. The representative of Finland expressed the view that the article should contain a general provision of equality of treatment while at the same time taking into account the varying scope of social security entitlements which could be accorded to documented and non-documented migrant workers. The provision also should include a minimum standard which could not prevent any State according more rights in accordance with its national legislation. In addition, a provision concerning social security entitlements to documented migrant workers should be found in part IV of the convention.

1987 - A/C.3/42/6: 27. At its 1st meeting on 22 September, the Working Group considered a text for article 27 which it had left pending during its spring session, on the basis of article 27 as contained in paragraph 269 of its report A/C.3/42/1), reading as follows:

1. With respect to social security, migrant workers and members of their families who are documented or are in a regular situation will enjoy in the State of employment the same treatment granted to nationals in so accordance with the applicable legislation of that State. The competent authorities of the State of origin and the State of employment can at any time establish the necessary arrangements to determine, if such is the case, the modalities of application of this norm.

2. Migrant workers and members of their families who are in the State of employment without the required documentation or are in an irregular situation will enjoy only those benefits of social security for which they have contributed, solely to the extent that this is not precluded by the applicable legislation and as long as the irregularity of their situation so allows. Where the applicable legislation or specific circumstances do not allow them any benefits, the competent authorities shall examine the possibility of reimbursing persons concerned the amount of contributions made by them with respect to benefits they cannot enjoy, on the basis of the treatment granted to nationals who are in similar circumstances.

1987 - A/C.3/42/6: 28. The representative of the Netherlands proposed to eliminate, in the second line of paragraph 1, the words "who are documented or are in a regular situation" and after the word "nationals" in the third line to insert the words "in so far as they fulfil the requirements in that State and the applicable bilateral or multilateral treaties".

1987 - A/C.3/42/6: 29. The delegations of Italy, Australia and Denmark supported that amendment, saying that it made the text more precise.

1987 - A/C.3/42/6: 36. After some discussion and at that same meeting, the Working Group adopted article 27 to read as above (see letter BUZA 2001 - 111).

The Dutch government also mentioned in their letter dated 29/11/2001 that the Convention Article 88 limits reservations, meaning that it would be impossible for them to make a reservation of article 27.

Article 88 says: A State ratifying or acceding to the present Convention may not exclude the application of any Part of it, or, without prejudice to article 3, exclude any particular category of migrant workers from its application.

The Convention does not allow reservations of any Part of it (read: any of the 9 Parts or Chapters) but does allow reservations of articles. The list of the reservations made by the present State Parties are available online.

According to the reports of the Working Group, they understood under 'Part' the following:

1990 - A/C.3/45/1: 57. The representatives of the United States, France and Finland proposed that the word "part" should be read "Part" in order to make it clear that what was meant was any of the "Parts" of the Convention and not any portion of it. The representation of France suggested the words "a whole Part" could be used in order to make matters even clearer.

1990 - A/C./45/1: 62. The representative of the Netherlands pointed out that the word "Part" in the Finnish proposal should be spelled with a capital "P" so that any exclusion of certain categories of migrant workers could be prevented.

1990 - A/C/45/1/ 66. At the 3rd meeting on 30 May 1990, the Finnish proposal was adopted by consensus as article 87 (note: will later on become article 88) as follows:

A State ratifying or acceding to the present Convention may not exclude the application of any Part of it, or, without prejudice to article 3, exclude any particular category of migrant workers from its application.

To put the discussion in the context:

1990 - A/C/45/1/ 53. In introducing the proposal, the representative of Finland stated that some members of the Working Group had sought to include a reciprocity clause in the substance of former article 86, in order to preclude the possibility of States ratifying the Convention solely to derive benefits from it and to ensure that all States parties bore their fair share of obligations. One of the principal concerns of many members of the Working Group was that some States might seek to ratify only specific parts of the Convention or seek certain categories of migrant workers for its ambit. The essential motivation behind the present proposal was to preclude that and, if accepted, it would render the adoption of a provision on reciprocity redundant.

1990 - A/C/45/1/ 55. The representative of the Netherlands expresses his support for the proposal by Finland on the grounds that he wanted to preclude the possibility of partial ratification of the Convention and preferred the approach taken in that proposal to the adoption of a reciprocity clause.

The Dutch government argued also that they do not want to ratify the Convention because the parts of the Convention that they do support are already secured in other multilateral conventions of which the Netherlands is a State Party (the European Convention for the protection of human rights and fundamental freedoms, the International Convention on civil and political rights and the European Convention on the rights of migrant workers).

As a last reason, they mentioned the fact that no other EU member state did ratify the Convention but that their reasons for not ratifying the Convention are unknown to the Dutch government. And that notwithstanding the 1994 declaration of the European Commission (call to ratify the Convention), each member state individually decides whether or not they wish to ratify or accede.

Written reply to parliamentary questions by PvdA Bussemakers and Koenders (only in Dutch), 15 January 2003

UNITED KINGDOM

The following statement was given by the Minister, Angela Eagle, in response to a Parliamentary Question on 9 January 2002.

"We have no plans at present to sign and ratify the convention. The Government consider they have already struck the right balance between the need for immigration control and the protection of the interests and rights of migrant workers and their families in the UK. The rights of migrant workers and their families are protected in UK legislation, including the Human Rights Act 1998, and the UK's existing commitments under international law."

The UN reports of the Working Group for the Drafting of the Convention can be found at any designated UN depository library.

Check the list of full deposit libraries by country here.