32/40 Report of the Special Rapporteur on the human rights of migrants on the impact of bilateral and multilateral trade agreements on the human rights of migrants
Document Type: Final Report
Date: 2016 May
Session: 32nd Regular Session (2016 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.16-07271(E)
Human Rights Council Thirty-second session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the human rights of migrants on the impact of bilateral and multilateral trade agreements on the human rights of migrants
Note by the Secretariat
The Secretariat has the honour to transmit the report of the Special Rapporteur on the human rights of migrants, prepared pursuant to Human Rights Council resolution 17/12.
In it, the Special Rapporteur expresses concern that, while trade liberalization has led to
economic growth and social welfare generally, such progress has sometimes come at the
expense of the human rights of migrants. Trade is not inherently negative, but the power
imbalances, protectionism and national interests that influence the global economy have
resulted in trade systems that exacerbate the precariousness of low-wage migrant workers
and directly and systematically infringe upon their human rights. Facilitated and well-
regulated mobility that is supported by comprehensive and robust institutional frameworks
is necessary to ensure inclusivity and equity in the enjoyment of the benefits of trade for all
migrants. In the report, the Special Rapporteur seeks to offer States practical guidance and
engage international organizations, the private sector, trade unions and other civil society
entities in the full realization of migrants’ rights.
Report of the Special Rapporteur on the human rights of migrants on the impact of bilateral and multilateral trade agreements on the human rights of migrants
Contents
Page
I. Introduction ...................................................................................................................................... 3
II. Activities carried out by the Special Rapporteur .............................................................................. 3
A. Participation in consultations and conferences ........................................................................ 3
B. Country visits ........................................................................................................................... 3
III. Impact of bilateral and multilateral trade on the human rights of migrants ..................................... 3
A. Background .............................................................................................................................. 3
B. Relationship between international trade and migration in the context of globalization ......... 4
IV. International trade agreements and their impact on the human rights of migrants ........................... 6
A. Direct impact on the rights of migrants ................................................................................... 7
B. Structural impact on the rights of migrants .............................................................................. 14
V. Promoting the human rights of migrants .......................................................................................... 16
A. Improving State accountability, effective monitoring and oversight ....................................... 16
B. Enhanced migration partnerships and cooperation, including with the private sector ............. 19
IV. Conclusions and recommendations .................................................................................................. 20
A. Conclusions ............................................................................................................................. 20
B. Recommendations .................................................................................................................... 20
I. Introduction
1. The present report is being submitted pursuant to Human Rights Council resolution
17/12. It briefly outlines the activities of the Special Rapporteur on the human rights of
migrants from 1 April 2015 to 19 April 2016. The thematic section is dedicated to bilateral
and multilateral trade agreements and their impact on the human rights of migrants.
II. Activities carried out by the Special Rapporteur
A. Participation in consultations and conferences
2. The Special Rapporteur was consulted by the Special Adviser on the Summit on
Addressing Large Movements of Refugees and Migrants and provided oral and written
input towards the development of her report on that issue.
3. The Special Rapporteur also participated and contributed to a number of
international and regional dialogues and conferences, including a meeting of the
Department of Economic and Social Affairs on international migration and a consultation
among international organizations organized by the International Organization for
Migration (IOM) in the framework of the Migrants in Countries in Crisis Initiative.
B. Country visits
4. Owing to the continued arrival of unprecedented numbers of irregular migrants to
European borders, the Special Rapporteur has remained engaged in the issue. He visited
Brussels in June 2015 to meet with representatives of European Union institutions and
debrief them on the findings contained in his report on European Union border management
(A/HRC/29/36). He provided suggestions on key European Union policy documents, such
as the European Agenda on Migration and the report of the European Parliament
Committee on Civil Liberties, Justice and Home Affairs on the situation in the
Mediterranean and the need for a holistic European Union approach to migration. He also
briefed the Interministerial Committee on Human Rights of Italy and the European
Parliament Subcommittee on Human Rights.
5. The Special Rapporteur’s visit to Australia in October 2015 was postponed to
November 2016. He has reiterated his request to visit Nauru and looks forward to receiving
a response and confirmation of the dates for a visit in November 2016. The Special
Rapporteur looks forward to his visits to Angola and Greece in May 2016.
III. Impact of bilateral and multilateral trade on the human rights of migrants
A. Background
6. The precarious status and widespread exploitation of migrants, particularly low-
wage workers, continues to be a matter of ongoing concern for the Special Rapporteur. As
increasing attention has been given to the relationship between free trade and bilateral and
multilateral investment agreements on human rights generally, the Special Rapporteur seeks
to examine more closely the impact of trade on the human rights of migrants.
7. Migrant workers account for 150.3 million of the world’s approximately 232 million
international migrants, and it is expected that the number of workers crossing borders in
search of security and employment will continue to increase.1 The Special Rapporteur
believes in the power of trade to catalyse economic growth and advance social welfare, but
notes that trade has not always led to inclusive, equitable and sustainable development
outcomes for all. World Bank estimates indicate that even a 3 per cent increase in migrant
labour from developing to high-income countries during the period 2005-2025 would yield
gains to the global economy of $356 billion.2
8. The Special Rapporteur understands that trade in itself is not the culprit of migration
challenges, nor can it remedy all related ills, but he maintains that fostering a culture of
transparency, accountability and ethical business practice while respecting the human rights
of migrants can reap positive development outcomes. Over the past two decades, most
Governments have concluded preferential trade agreements that incorporate human rights
provisions. While this has been a positive development, it has also resulted in increased
fragmentation in the interpretation of international human rights standards, as well as a
prejudicial application of labour mobility arrangements and immigration laws, effectively
infringing upon the human rights of migrant workers and their families. The Special
Rapporteur’s assessment includes not only the instabilities triggered by the power
imbalances, protectionism and national interests that have become embedded in the
international trade regime, but also the ways in which trade can serve as a vehicle for
advancing human rights, development and better opportunities for all migrant workers.
9. In writing the present report, the Special Rapporteur recognizes the work of the
following United Nations bodies, mechanisms and policy documents: the human rights
treaty bodies, the universal periodic review, other special procedure mandate holders, the
Special Representative of the Secretary-General on International Migration and
Development, the International Labour Organization (ILO), the United Nations Conference
on Trade and Development (UNCTAD), the High-level Dialogue on International
Migration and Development, the Global Migration Group and the 2030 Agenda for
Sustainable Development. The Special Rapporteur also recognizes the work of IOM and the
Global Forum on Migration and Development.
10. The Special Rapporteur consulted a human rights impact assessment and scoping
study currently being conducted by the Office of the United Nations High Commissioner
for Human Rights (OHCHR), the Economic Commission for Africa and Friedrich-Ebert-
Stiftung on the Continental Free Trade Area. The Special Rapporteur also consulted experts
from the United Nations, academia and civil society organizations.
B. Relationship between international trade and migration in the context
of globalization
11. International trade is the exchange of goods or services between nations. The
foundation of international trade law is established by international treaties and agreements,
the domestic laws of a State party to a trade agreement, and case law on the resolution of
trade disputes between States. Trade agreements may consist of bilateral and plurilateral
arrangements or multilateral arrangements, and recent agreements have included chapters
or protocols on investment.
1 International Labour Organization, Global Estimates on Migrant Workers: Results and Methodology
— Special Focus on Migrant Domestic Workers (Geneva, International Labour Office, 2015).
2 World Bank, Global Economic Prospects: Economic Implications of Remittances and Migration
(Washington, D.C., 2006).
12. Traditionally, migration has only been regulated at the national level, with migration
and trade considerations operating in separate spheres. With globalization, however, trade
policies and migration policies have become more interconnected owing to the desire to
liberalize economies and facilitate the mobility of labour between countries and regions.
Migrants are rarely viewed as people with rights, but instead as “factors of production” in
trade and may be “commoditized”3 in terms of the services they can provide or the goods
they can produce. Even in the current neoliberal economic climate, trade negotiators are
often confronted with barriers, such as restrictive immigration policies, obstacles to visa
issuance, discrimination against foreign workers and limited recognition of professional
qualifications, that are shaped by fluctuating labour market needs and national security
concerns.
13. Migration schemes, which also respond to regional variations in sectoral demands
for labour and migratory patterns, have not managed to keep pace with the rapid increase in
mobility. This has triggered a resurgence of non-traditional, precarious and informal types
of work that exist beyond the regulatory framework, especially in economic sectors, such as
domestic work, agriculture, food processing and packaging, construction, hospitality, health
and elderly care, tourism, fisheries and extraction, that can be delocalized only with
difficulty.
Limited treatment of migrants in multilateral trade negotiations
14. The General Agreement on Tariffs and Trade first introduced the concept of a
multilateral trading system founded on the principles of non-discrimination and reciprocity.
Adopted after the end of the Second World War, the Agreement aimed to significantly
reduce tariffs and barriers to trade worldwide.
15. The Uruguay round of negotiations (1986-1994) ambitiously sought to expand the
competence of the General Agreement on Tariffs and Trade into new areas, such as trade in
services, capital, intellectual property, textiles and agriculture, but focused almost
exclusively on persons linked to a commercial presence (intra-corporate transferees) and
high-skilled labour. Limited mention of labour in the multilateral system occurs in the
General Agreement on Trade in Services, mode IV, specifically article I:2 (d), which covers
the mobility of “natural persons who are service suppliers of a Member, and natural persons
of a Member who are employed by a service supplier of a Member, in respect of the supply
of a service”. According to the annex on movement of natural persons supplying services
under the Agreement, mode IV does not concern itself with individuals seeking access to
the employment market in the destination country, nor does it affect processes regarding
citizenship, residence or employment on a permanent basis.
16. While some States have insisted that the World Trade Organization (WTO) address
the issue of “social dumping” through the inclusion of trade provisions requiring States
parties to observe minimum workers’ rights, the responsibility of regulating labour
standards has been kept outside of multilateral trade negotiations.
17. Since 2001, several attempts have been made during the Doha round to expand the
classes of workers covered by the General Agreement on Trade in Services, by recognizing
developing countries’ comparative advantage across specific service sectors and
abandoning the economic needs test, which leaves States wide discretion on which workers
to admit. Even after the 2015 WTO ministerial conference in Nairobi, however,
negotiations have still not resulted in solid commitments to low-wage labour.
3 See the Declaration concerning the Aims and Purposes of the International Labour Organization, in
which the ILO General Conference reaffirmed that labour is not a commodity.
Trend towards regionalism and the growth of preferential trade agreements
18. With global discussions on trade stalled at WTO, there has been a marked surge in
the number of regional and preferential trade agreements. By 2013, the number of such
agreements had more than quadrupled, with all WTO members being a party to at least one
preferential trade agreement.4 As of 1 February 2016, WTO had received 625 notifications
of regional trade agreements, of which 425 are currently in force.5
19. Regional and preferential trade agreements reflect a continuum of approaches to
labour mobility. The Common Market for Eastern and Southern Africa (COMESA), the
European Economic Area, the European Free Trade Association and the European Union
allow for full mobility of labour across sectors. This is particularly salient since migration
predominantly occurs between countries within the same geographic region. In 2015, 87
per cent of migrants living in Africa originated from another country in the region,
compared with 82 per cent of migrants in Asia, 66 per cent of migrants in Latin America
and the Caribbean and 53 per cent of migrants in Europe.6
20. As tariffs have been reduced around the world, the central focus of trade has shifted
to advancing economic integration and the penetration of certain sectors. Recent
preferential trade agreements are increasingly adopting migration governance mechanisms
such as visa and asylum request procedures and provisions similar to those contained in
mode IV of the General Agreement on Trade in Services, or expanding the coverage of the
Agreement; migrant return guarantees; institutionalized recruitment; and skills-testing. That
said, these agreements are still dictated by the geopolitical interests of high-income
countries, which favour high-skilled workers and temporary employment.
21. The Special Rapporteur reiterates his concern that a dependence upon discretionary
and unilaterally defined admissions, as well as a lack of legal entitlements, endangers
human rights and engenders a precariousness that leaves migrant workers vulnerable to
exploitation and abuse. Facilitated and well-regulated mobility mechanisms are necessary
to protect the human rights of migrants and to realize the numerous benefits of trade and
migration, which include economic growth, the creation of jobs, increased competitiveness
and innovation.
IV. International trade agreements and their impact on the human rights of migrants
22. The scope of the human rights protections afforded migrants in international trade
agreements has been determined by whether international commercial treaties reference a
specific human rights or labour instrument and the manner in which the protection is
operationalized or enforced.
23. The following sections will address both the direct and structural impact of bilateral
and multilateral trade agreements on the human rights of migrants. The complexities
resulting from the current tendency towards regionalism and preferentialism in concluding
international trade agreements, combined with few empirical studies on the trade-human
rights nexus, render it difficult to determine the exact impact of trade on migrants.
Accordingly, the information available will be presented and areas for further consideration
by the Special Rapporteur will be identified. Themes that have already been addressed by
4 WTO database on preferential trade agreements (ptadb.wto.org).
5 See https://www.wto.org/english/tratop_e/region_e/region_e.htm.
6 United Nations, Department of Economic and Social Affairs, “Trends in international migration,
2015”, No. 2015/4 (December 2015).
the Special Rapporteur in his previous reports on labour exploitation (A/HRC/26/35) and
recruitment practices (A/70/310) will be mentioned briefly in the context of international
trade. Examples of good practices and key features of existing trade agreements towards the
full realization of human rights are provided throughout the present report.
A. Direct impact on the rights of migrants
Constraints on freedom of movement
24. International human rights law recognizes the right of any individual to freedom of
movement within the borders of his or her country, as well as the right to leave his or her
country and return. Admittedly, there is no corresponding right to enter into the territory of
another State, and States retain the sovereign authority to regulate immigration. Still, even
when making immigration decisions, under international law States are still required to
respect, promote and fulfil their human rights obligations to all, regardless of their status.
25. The Special Rapporteur is concerned that, in spite of the protections for migrants
contained in the international human rights framework, transnational migration laws and
regulations have been restrictive and segmented by skill, rather than protective. Within the
multilateral framework, the liberalization of temporary workers under the General
Agreement on Trade in Services covers only 5 per cent of world services trade. Moreover,
of the few commitments that were made by States in mode IV of the Agreement, only 17
per cent relate to low-skill trade for temporary workers.7 Conversely, 70 per cent target
high-skilled services occupations, 25 per cent target executives, managers and specialists,
and 43 per cent cater to intra-corporate transferees.8
26. Despite a global boom in labour mobility agreements during the 1990s, geographic
biases prevailed, reinforcing power imbalances between sending and receiving States,
rather than remedying them. States members of the Organization for Economic Cooperation
and Development (OECD) registered a fivefold increase in the number of bilateral labour
mobility agreements and Latin American countries doubled their numbers; countries in
Asia and Africa, on the other hand, failed to register the same figures.9
27. The Special Rapporteur remains concerned that States have not analysed their own
labour market needs across sectors and adjusted mobility allowances accordingly. Even in
cases where trade arrangements allow for mobility across all sectors, immigration
determinations in receiving countries are heavily influenced by economic pressures,
political ties and traditional admission practices, completely disregarding the overwhelming
evidence of the benefits of a well-regulated migration. During the Special Rapporteur’s
visit to the European Union institutions in Brussels, he noted the high demand for unskilled
labour in several sectors, including agriculture, hospitality, construction and domestic work,
which generally goes unrecognized, thus fostering important underground labour markets
where irregular migrants are exploited. He observed that the European Union migration
framework has yet to be accompanied by a parallel development of opportunities for
migrants to seek regular channels for temporary “unskilled” jobs.
7 Marion Panizzon, “Standing together apart: bilateral migration agreements and the temporary
movement of persons under ‘Mode 4’ of GATS”, Working Paper No. 77 (Centre on Migration, Policy
and Society, University of Oxford, 2010).
8 States have demonstrated a preference for regulating medium- and low-wage migration in bilateral
labour mobility agreements, which are different from trade agreements (see paras. 65-69 below).
9 World Economic and Social Survey 2004: International Migration (United Nations publication, Sales
No. E.04.II.C.3).
28. The Special Rapporteur also wishes to draw attention to States entering new
agreements that undercut existing labour standards and mobility arrangements to the
detriment of migrant labour. The negotiation of the Tripartite Free Trade Area among
COMESA, the East African Community and the Southern African Development
Community (SADC) illustrates some of the challenges associated with overlapping
commitments between regional communities at various stages of integration. Of the 26
countries that belong to a regional economic community, 12 belong to at least 2 of the
communities and a number of countries are negotiating to join different customs unions,
implying that citizens of some States will enjoy greater mobility than others.
29. The practical effect of constrained mobility has been that States fail to acknowledge
and regulate informal and underground labour markets. Consequently, migrants are victims
of deceptive recruitment practices, work in unsafe working conditions, become more
vulnerable to labour exploitation at the hands of unscrupulous employers and live in
constant fear of being deported. Where adequate provisions are not made to facilitate
mobility, migrants may respond to unrecognized labour needs by seeking out irregular
channels and covert intermediaries, or by overstaying to gain employment, thus risking
their lives and welfare.
Non-discrimination, equality of opportunity and treatment
30. International human rights law confers protections to all individuals within a State’s
jurisdiction, regardless of migratory status. Similarly, the ILO comprehensive tripartite
system of labour protections provides coverage to all workers, regardless of legal status.
Emerging jurisprudence at the regional level reinforces the principle that international
human rights and labour standards and national labour laws apply to all migrant workers
without distinction.
31. The Special Rapporteur remains concerned, however, that lack of data on and of
acknowledgement of the contributions of migrants, both in fulfilling low-wage and
medium-wage work, compounded with discriminatory attitudes and high rates of
unemployment in destination countries, have resulted in the limited inclusion of mobility
provisions in trade agreements for low-wage workers and a subordinated status for migrant
labour. Migrants may face discrimination, both in the initial determinations that States
make to enter into trade agreements and with respect to decisions about immigration. The
Association of Southeast Asian Nations (ASEAN) Economic Community reduces barriers
to migration, but only for high-wage occupations, which represent 1.5 per cent of the labour
market.10 Migrants in low-wage occupations continue to face discriminatory laws that
exclude them from regular migration.
32. Even migrants with permanent status experience labour market disadvantages,
discrimination, xenophobia and ill-treatment. Approximately 16 per cent of migrants
employed in OECD countries are in low-wage jobs, compared to 7 per cent of nationals.11
This is not owing to low educational levels or training, as corresponding data indicates that
many migrant workers are overqualified.
33. Persistent discrimination against migrants manifests itself on a day-to-day basis in
multiple ways: the irregular channels and covert agents that migrants must seek out to gain
entry into destination countries; the retention of workers’ passports or identity documents;
and the exploitative work conditions that migrants endure. During the Special Rapporteur’s
10 Guntur Sugiyarto and Dovelyn Rannveig Agunias, “A ‘freer’ flow of skilled labour within ASEAN:
aspirations, opportunities and challenges in 2015 and beyond”, Issues in Brief, No. 11 (IOM Regional
Office for Asia and the Pacific and the Migration Policy Institute, December 2011).
11 ILO, Fair Migration: Setting an ILO Agenda (Geneva, International Labour Office, 2014).
visits, he has noted the discriminatory categorization of migrants based on their nationality,
whereby some nationalities are seen as more valuable than others and are paid higher
salaries for carrying out the same job (e.g., domestic work).
34. The Special Rapporteur is also aware of situations where discrimination against
migrants can escalate to verbal intimidation, physical and sexual violence or death. The
United Nations has found that 59 per cent of trafficked Cambodian migrants interviewed
aboard Thai fishing vessels reported witnessing the murder of a co-worker.12
35. States have taken a greater number of measures to address systemic discrimination
against migrants through the inclusion of non-discrimination clauses in their trade
agreements, with monitoring and enforcement arrangements. The Dominican Republic-
Central America-United States of America Free Trade Agreement (CAFTA-DR) provides
for, inter alia, cooperation activities that increase protection against workplace-related
discrimination and promote a culture of compliance with labour standards. The labour
standards in States parties are monitored through a project carried out in conjunction with
ILO.
Pervasive and multifaceted workplace exploitation
36. The Special Rapporteur has already addressed labour exploitation extensively in a
previous report (A/HRC/26/35). Here, he emphasizes that provisions for robust,
comprehensive and binding institutional frameworks are necessary within trade agreements
to ensure compliance with labour standards and safeguard the rights of migrant workers.
37. Monitoring and enforcement mechanisms have been included in some trade
agreements and make use of several mediums to detect and eradicate systemic abuse,
including through the establishment and training of labour inspectorates, regular labour
inspections and independent auditing on labour conditions at all stages of the value-addition
and supply chains. In April 2013, in the context of CAFTA-DR, the Governments of
Guatemala and the United States signed an “enforcement plan” containing 18 commitments
aimed at addressing institutional weaknesses in the labour protection framework of
Guatemala. These included strengthening the enforcement capacity of labour inspections,
protecting workers against the sudden closure of firms, ensuring labour law compliance by
export companies and enforcing decisions of the labour judiciary. Guatemala engaged an
additional 100 labour inspectors, as well as other staff, in preparation for the agreement.13
38. Trade and mobility agreements have also introduced regulated recruitment systems
to counter the specific issue of unethical recruitment and dismantle unscrupulous fee
structures. In some cases, shared migration databases have been instituted between States to
coordinate migration efforts and ensure that low-wage workers are engaged in employment
that better matches their skills and qualifications. The Special Rapporteur received
information about the Employment Permit System of the Republic of Korea, which has
nearly eliminated recruitment fees for migrants but remains compromised by power
imbalances where countries of origin may require deposits and encourage reporting among
migrants to ensure that workers do not overstay their visas.14
12 United Nations Inter-Agency Project on Human Trafficking, “Exploitation of Cambodian men at sea”
(29 April 2009).
13 International Institute for Labour Studies, Social Dimensions of Free Trade Agreements, (Geneva,
ILO, 2015).
14 Open Working Group on Labour Migration and Recruitment, “South Korea’s Employment Permit
System: a successful government-to-government model?”, Policy Brief No. 2 (2014).
Freedom of expression and association and the right to unionize and bargain
collectively
39. The rights of all migrant workers to join and form trade unions are well-established
in international human rights and labour law, and ILO has worked tirelessly over decades
through its tripartite structure to make this commitment a reality. The Special Rapporteur is
concerned, however, that migrant workers are unable to freely exercise their right to join or
form trade unions and bargain collectively. In many States, national legislation restricts
unionization on the basis of citizenship or legal status, which exacerbates the exploitation
of migrants. For example, labour laws in some States may require a minimum number of
nationals to form a trade union, whereas other States may require that workers meet specific
residency requirements in order to unionize. In both instances, migrants are prevented from
exercising their fundamental rights.
40. Migrant workers have experienced obstacles to organizing because they are
concentrated in jobs that nationals are unwilling to accept, in remote locations or in sectors
that are not subject to regulation. During his visits, the Special Rapporteur noted the
existence of sponsorship and kafala structures, wherein workers are under the absolute
authority of their sponsors and those employed in individual homes are particularly isolated
and subject to abuse. Migrants with irregular status may also be intimidated to join or form
trade unions owing to threats of loss of employment, deportation or violence, or they may
even face discrimination from nationals who view them as competition for jobs.
41. The Special Rapporteur emphasizes that the ability of migrants to unionize is critical
to combat the structural power imbalances that permeate the current trade regime. Trade
unions play an instrumental role in empowering migrants and ensuring fair terms and
conditions of employment. In 2010, after 162 Thai berry pickers were not paid by their
employer, Lomsjö Bär AB, three of the workers joined the trade union Kommunal, which
pursued the company in court, and the workers eventually received compensation from the
Government of Sweden.15
42. The Special Rapporteur stresses that development cannot be measured solely by
economic gains but must also be evaluated against advancements in the social and cultural
dialogue. Trade unions have been effective in facilitating the integration of migrants in
countries of destination by fostering collective solidarity and establishing support networks.
The European Trade Union Confederation established an online information resource and
social network of trade union contact points for migrants across Europe (see
www.unionmigrantnet.eu). In Canada, the United Food and Commercial Workers Union
organized the Agricultural Worker Alliance, to establish 10 support centres across the
country that aid migrant workers by: addressing abusive employers and hazardous
workplace and housing conditions; assisting with medical treatment, workers compensation
benefits and parental leave benefits; facilitating regularization processes; sponsoring
courses on health and safety training and English as a second language; and providing
scholarships to children of migrant workers.
43. Trade unions have been critical partners in the prevention of human trafficking and
forced labour. The International Trade Union Confederation and the International Union of
Food Workers, for example, have played a critical role in curtailing forced labour in the
cocoa industry in Côte d’Ivoire by advocating implementation of the Protocol for the
Growing and Processing of Cocoa Beans and Their Derivative Products in a Manner that
Complies with ILO Convention No. 182 concerning the Prohibition and Immediate Action
15 ILO Country Office for the Philippines, A Case Study of Thai Migrant Workers in Sweden (Manila,
2012).
for the Elimination of the Worst Forms of Child Labour.16 A partnership between the
confederation of workers Rerum Novarum, of Costa Rica, and the Sandinista Workers’
Centre and the Confederación de Unificación Sindical, of Nicaragua, led to the creation of
the Trade Union Centre for Migrants, which offers free legal and administrative assistance
to all migrant workers seeking regularization and aims to combat trafficking in children by
partnering with the local taxi drivers’ union.17
44. Cooperation and coordination agreements between unions in countries of origin and
destination too are effective in addressing protection gaps and galvanizing migrants across
borders. In 2014, representatives of the Congress of South African Trade Unions, the
Zimbabwe Domestic and Allied Workers Union, the South African Domestic Service and
Allied Workers Union, the Federation of Unions of South Africa, the Congress of Lesotho
Trade Unions and the Zimbabwe Congress of Trade Unions signed a declaration to support
each other, strengthen the capacity of national unions to assist local and migrant domestic
workers and lobby their respective Governments to continue to implement their decent-
work country programmes.18 The Special Rapporteur believes cooperation agreements can
be used by States to develop institutional links with trade unions and ensure that unions are
partners in trade negotiations.
45. Having recognized the important role of trade unions, States parties to trade
agreements have begun to include provisions protecting the rights of migrants to unionize
and bargain collectively. In some cases, this has improved domestic protections for
organized labour. In 2006, as a result of pre-ratification pressure stemming from its trade
agreement with the United States, Oman granted workers the right to unionize.19
46. The Special Rapporteur emphasizes, however, that this is not the case in all contexts,
especially where domestic courts fail to uphold the rights of migrants to organize, as was
the case in Canada in Ontario (Attorney General) v. Fraser (2011).
Impediments to access to justice, due process and the right to an effective remedy
47. International human rights law protects, inter alia, the right of an individual to an
effective remedy from the competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of a State, and the
possibilities of judicial remedy.
48. The Special Rapporteur is aware that some countries of origin have resisted
providing support to migrants seeking effective remedy so as not to endanger their
competitiveness in the international labour market or their ability to benefit from
remittances. The British Columbia Labour Relations Board found that Mexican authorities
had blacklisted migrant workers who had participated in the Canadian Seasonal
Agricultural Workers Program for supporting unions and prevented workers from
participating in the Program the following season because they feared that if Mexican
workers unionized they would be replaced by workers from Guatemala.20
49. Where migrants do not receive support from their Government, the onus falls on
migrants to notify authorities and file complaints of violations of their rights. Migrants may
face several obstacles in accessing legal remedies, however, including: lack of knowledge
16 International Trade Union Confederation, How to Combat Forced Labour and Trafficking: Best
Practices Manual for Trade Unions (Brussels, 2009).
17 Ibid.
18 See www.ilo.org/dyn/migpractice/migmain.showPractice?p_lang=en&p_practice_id=163.
19 International Institute for Labour Studies, Social Dimensions of Free Trade Agreements.
20 See www.labourlawoffice.com/wp-content/uploads/2015/08/BM5.pdf.
of the employment terms, since there is no written work contract; lack of knowledge of the
terms of the trade or mobility agreement and, where there are competing agreements, the
applicable framework; lack of knowledge of national labour and migration laws or the local
language; lack of access to competent representation or legal aid; obstacles to unionization;
and fear of retaliation from employers or deportation. In the Guiding Principles on Business
and Human Rights, it is acknowledged that migrants often do not enjoy the same level of
legal protection of their human rights as the wider population and that this prevents valid
cases involving business-related human rights abuses from being adjudicated.
50. Most trade agreements aim for settlement between the parties outside of judicial
review. Examples of such agreements have been concluded with, among others: ASEAN,
the European Free Trade Association, the Southern Common Market (MERCOSUR),
NAFTA, the Southern African Customs Union and SADC. Similar trade agreements have
also been concluded between Japan and Switzerland and between Tunisia and Turkey,
among others. It is worth noting, however, that some trade agreements can be invoked
before domestic courts, for example in Argentina, Brazil and Mexico.
51. Given the endemic power imbalances in the trade regime, it is not surprising that
Governments have rarely brought forward labour cases in the context of trade and may
even challenge them. The majority of cases end up stalled in administrative channels
created under the trade terms. Very rarely, other outreach solutions have been identified to
remedy violations of migrants’ rights. NAFTA has an advanced dispute settlement
mechanism, but the remedies available are illusory and beg the question of enforceability,
since the North American Agreement on Labour Cooperation (NAALC), an accord parallel
to NAFTA, only provides for binding remedies where an arbitral panel finds a violation
relating to child labour, occupational health and safety, or minimum wages. Penalties are
not imposed for labour standards violations and complaints rarely advance beyond the
national administrative offices established to monitor NAFTA. In the so-called
“Washington State apples case” (1998), when Mexican workers filed a complaint under
NAALC alleging violations of their rights to unionize and bargain collectively, to
protection from discrimination and to health and safety, and alleging that employers used
threats and intimidation, the Washington State authorities established a complaints hotline
in Spanish, produced Spanish-language information materials and recruited additional
Spanish-speaking staff in the agriculture sector.
52. The Special Rapporteur emphasizes that strengthening access to justice for migrants
to pursue judicial remedies directly is essential to combat asymmetry in the trade regime
(see sect. V below).
Economic, social and cultural rights and integration
53. Under international law, States have a binding obligation to ensure the economic,
social and cultural rights of all individuals without distinction, including the right to work,
which provides migrants with compensation that is equal to that provided to nationals, a
decent living for themselves and their families, safe and healthy working conditions, rest,
leisure and a reasonable limitation on working hours and periodic holidays with pay, as
well as remuneration for public holidays. States also have the responsibility to respect and
uphold the rights to, inter alia, education, health, social security, housing, food and water, a
healthy environment and culture in a manner that promotes non-discrimination, dignity and
freedom for migrants.
54. The Special Rapporteur is concerned that the respect, protection and fulfilment of
economic, social and cultural rights remain too often elusive for migrants, especially low-
wage workers or those in an irregular situation. States have not consistently established
policies with corresponding accountability mechanisms that ensure the full range of
economic, social and cultural rights for migrants, regardless of legal status. The Special
Rapporteur is aware that many migrants are not able to access housing and, as a result, live
in overcrowded or substandard housing. Migrants rarely have access to medical care and
the necessary social services and benefits systems in transit or destination countries.
Migrant children may be denied the right to attend school owing to their or their families’
irregular status. In some cases, trade effects may result in environmental degradation or
supply-chain offences such as trafficking, forced labour or child labour, which compel
migrants to leave their country of origin.
55. Trade agreements can be effective in developing robust systems for the monitoring
and enforcement of economic, social and cultural rights in a way that reduces the economic
and social costs associated with migration and facilitates the integration of migrants into the
destination country. Where necessary, firewalls can also be created between immigration
enforcement and public services so that public officials are able to perform their important
social functions without interference. The Caribbean Community established the Council
for Human and Social Development, composed of ministers of the member States, who
convene to discuss labour and other social issues.
56. Trade agreements have also enhanced the portability of social security and other
acquired rights, promoted the mutual recognition of diplomas, qualifications and skills,
supported the education and training of migrants, and lowered the transfer costs of
remittances. MERCOSUR guarantees migrants equal civil, social, cultural and economic
rights and freedoms as nationals in the destination country, particularly the right to work
and to carry out any legal activity. The Ibero-American Multilateral Agreement on Social
Security, to which two European and 12 Latin American countries are signatories, covers
all persons who have been subject to the social security legislation of any of the signatory
States and their family members, and provides for cash benefits in the event of disability,
old age, death of a family member and employment-related injury.
Human rights concerns of vulnerable population groups
57. The Special Rapporteur recommends that special attention be paid to the potential
impact of trade on migrants who may be further marginalized by other intersecting mutable
or immutable characteristics, for instance gender, age, race, minority or indigenous status,
disability, medical condition or sexual orientation. While these traits are not inherent
vulnerabilities on their own, migrants in these groups may be more at risk of exploitation
and abuse because of their irregular status and precarious labour contracts.
Gender
58. The Special Rapporteur stresses that the services sector constitutes the largest
employer for women worldwide and believes that well-facilitated and regulated migration
can offer women unprecedented opportunities for financial independence and upward
mobility. It is promising that regional agreements such as COMESA have prompted the
elimination of discriminatory national legislation against women.
59. Women, particularly those in the care sector, are especially vulnerable to
exploitation and abuse, as they work in physical and social isolation. Men too may
experience abuse and exploitation, in sectors such as construction and agriculture. The
Special Rapporteur believes in the importance of trade agreements providing all migrants
with the opportunity to seek redress for human rights and labour standards violations,
without fear of detection, detention and deportation.
Children
60. Migrant children have unique concerns in the context of trade, as they comprise a
significant proportion of child labourers in informal sectors, as well as in the commercial
sex industry. In 2010, in the context of the trade agreement between Panama and the United
States, the National Bureau against Child Labour and for the Protection of Adolescent
Workers was established within the Panamanian labour department. The partnership
agreement between the members of the African, Caribbean and Pacific States and the
European Union, also known as the Cotonou Agreement, provided for the creation of
cooperative education programmes towards the elimination of child labour.
61. For children whose parents are migrant workers, being excluded from education and
health systems in the destination country can have lasting consequences on physical and
mental health and development. In its 2004 publication “Free trade and children”, the
United Nations Children’s Fund (UNICEF) sheds light on the situation of migrant children,
in the context of CAFTA-DR, who are disproportionately at risk of poverty, family
disintegration and malnutrition because of declines in the agricultural sector and rural
employment.
B. Structural impact on the rights of migrants
Protectionism, power imbalances, asymmetry and persistent inequalities
62. The Special Rapporteur reiterates that the manner in which international trade
regulations and negotiations have been dominated by high-income countries has had
tremendous consequences for the most vulnerable segments of the population, specifically
migrants. Throughout the development of the multilateral trade regime, the protectionist
approach to specific sectors has prevented developing economies from reaping the benefits
of free trade where they have a comparative advantage in medium-to-low-wage labour. As
migrants have continued to move towards high-productivity regions, the economic and
political clout of developed countries has seriously undermined negotiations, monitoring
and accountability in trade and mobility arrangements. Within WTO, high-income
countries have filed the most complaints, largely owing to their superior financial and legal
resources.21 Empirical studies also indicate that, when developing countries sue high-
income countries, they tend to experience longer delays between the end of litigation and
the beginning of compliance proceedings. In 2009, in recognition of inherent asymmetry in
the global economy, heads of the Group of 20 pledged not to repeat the same protectionist
mistakes in trade, but the International Monetary Fund reports that during the financial
crisis 17 of the 20 countries imposed trade restrictions, distorting aggregate world trade by
at least 0.25 per cent ($50 billion per year). As a result of institutionalized inequities,
migrants’ concerns become even more attenuated in the context of trade, even though trade
decisions have a direct impact upon migrants’ rights.
63. There must also be greater balance between the protections afforded States and
investors and all other persons in the jurisdiction of trade parties. Rule of law and judicial
oversight are compromised when investors can bypass the exhaustion of national remedies
before seeking relief in supra-national tribunals, for example in investor-State dispute
settlement tribunals. While investor-State dispute settlement provisions are included in
trade and investment agreements throughout the world, 60 per cent of all cases in 2014
were brought against developing countries and countries with economies in transition.22
Although more cases are progressively being filed against developed countries, investors in
capital-exporting countries have filed more than 80 per cent of all investor-State dispute
21 Martin A. Weiss and others, “International investment agreements (IIAs): frequently asked
questions”, Congressional Research Service (15 May 2015).
22 Ibid.
settlement claims.23 There is no ceiling on the tribunal’s compensation awards, and
decisions are binding without appeal. As a result, the investor-State dispute settlement
process has also had an undeniably chilling effect on the enforcement of rights, as States
are less likely to rule in favour of the public if they are required to pay exorbitant fees as
settlements. Remedies have also been disproportionately skewed in favour of high-income
countries (see A/70/301).
Violation of the right to information, lack of transparency and meaningful
participation in public affairs
64. The recent negotiation of the Trans-Pacific Partnership, the Trans-Atlantic Trade
and Investment Partnership and the Trade in Services Agreement, which comprise at least
two thirds of global trade in services, highlight the lack of transparency, opportunities for
public dialogue and accountability surrounding trade negotiations. Like other mandate
holders, the Special Rapporteur remains concerned about the extent to which transnational
corporate interests have prevailed over public discourse and accountability for observing
human rights standards. Although trade regimes have a significant impact on the lives of
migrants, they rarely offer migrants or their representatives opportunities for meaningful
participation in negotiation processes, which violates migrants’ fundamental rights to self-
determination, access to information and public participation. The Special Rapporteur is not
aware of migrants’ groups being consulted in these negotiations; more broadly, civil society
does not participate in trade negotiations sufficiently. Despite power imbalances in the
international trade regime, States repeatedly fail to reform trade negotiations to make them
more transparent or strengthen accountability through enforcement against related rights
violations.
65. The Special Rapporteur is pleased that the Canada-Colombia Free Trade Agreement
includes binding provisions allowing any person residing in either country to submit a
written inquiry to the national authorities and obliging the Governments to make the
questions and responses public. He stresses, however, that it is important that the terms of
such provisions be clear and actually provide meaningful opportunities for participation.
Merits of bilateral labour mobility regulation
66. Since the 1960s, the emergence of bilateral labour mobility agreements to govern
medium- and low-wage migration has been a positive development, as States have greater
flexibility to facilitate mobility across skills levels, address social protection gaps and
respond to labour market needs than in the multilateral trade framework. ILO estimates
that, in 2015, at least 358 bilateral labour mobility agreements were in existence.24
67. A recent shift towards incorporating mobility in framework agreements,
memorandums of understanding and declarations of mutual cooperation has resulted in
States treating labour mobility agreements as informal and non-binding. In Asia, almost 70
per cent of labour mobility arrangements employ the informal framework provided by
memorandums of understanding, compared with 30-40 per cent in Africa, Europe and the
Americas.25
68. The Special Rapporteur is concerned that bilateral labour mobility agreements erode
existing social and mobility protections granted through commitments in other agreements,
which increases the precariousness of workers by exposing them to the vulnerabilities of
23 Ibid.
24 International Labour Office, Bilateral Agreements and Memoranda of Understanding on Migration of
Low Skilled Workers: A Review (Geneva, 2015).
25 Ibid.
displacement. He also notes that bilateral labour mobility agreements have not always been
comprehensive in the protections they afford migrants and systematically fail to cover the
entire migration cycle, to address gender-specific concerns, to provide for consultation with
stakeholders outside of government, to integrate wage protection measures and to prohibit
the confiscation of travel and identity documents.
69. The Special Rapporteur stresses that, even with the emergence of bilateral labour
mobility agreements intended to improve social protections and curb illicit activity, the
systemic abuse of migrants has continued, accompanying irregular migration, migrant
smuggling, forced labour, child labour and human trafficking.
70. The Special Rapporteur proposes a global mobility framework in bilateral and
multilateral trade agreements that would strengthen protections for migrants. Such a
framework would build upon the protections specified in the ILO Multilateral Framework
on Labour Migration (2006) and the ILO Migration for Employment Recommendation
(Revised), 1949 (No. 86), to which a model agreement on temporary and permanent
employment is annexed and includes provisions relating to recruitment, equality of
treatment, education and vocational training, housing and employment contracts, among
other provisions.
V. Promoting the human rights of migrants
A. Improving State accountability, effective monitoring and oversight
71. In keeping with the principles advocated by the Working Group on Business and
Human Rights and other mandate holders, States must ensure that the trade agreements they
conclude reflect their obligations under international law. According to the Guiding
Principles on Business and Human Rights, this means that States must not breach
international human rights law obligations where such abuse can be attributed to them, or
where they fail to take appropriate steps to prevent, investigate, punish and redress private
actors’ abuse. States also have a duty to refrain from ratifying agreements that make it more
difficult to uphold fully human and labour rights.
72. The Special Rapporteur wishes to provide States with guidance on how to ensure
that the trade agreements they conclude are consistent with their obligations towards
migrants under international law. The Special Rapporteur understands that there is no
blanket solution that will remedy all of the challenges related to trade and migration, but he
believes that the systematic inclusion of a series of processes and provisions during trade
negotiations would establish a strong institutional framework for the protection of migrants’
rights. Such a system would include explicit references to international human rights and
labour instruments in trade provisions, the dissemination of information about the draft
terms of trade agreements and opportunities for public discourse about trade implications
and the collection of reliable data that is made public to better inform trade policies and
migration patterns.
73. The Special Rapporteur underscores the need to conduct human rights impact
assessments reflective of the relevant national contexts and capacities (human, financial,
political and technical) to determine appropriate provisions relating to general exception
clauses, judicial remedies and other compensatory, adjustment, grievance and remedial
mechanisms. These arrangements must be accompanied by monitoring and enforcement
mechanisms that are developed in consultation with migrants and are continuously
monitored to ensure their effectiveness. A national agency designated with independently
monitoring all of the relevant ministries involved in migration matters may facilitate a
comprehensive understanding of the labour migration experience of migrant workers. The
awareness of labour inspectorates, national human rights institutions and ombudspersons
regarding the concerns of migrants should also be raised and such entities should be tasked
with ensuring that the human rights of migrant workers are being observed in the
implementation of trade agreements.
Ex ante and ex post human rights impact assessments
74. Human rights impact assessments are particularly useful when considering the
human rights of migrants since they emphasize non-discrimination as a key guiding
principle and shift the focus away from the aggregate outputs of trade to the impact of trade
on the most vulnerable groups. In addition, human rights impact assessments strengthen
accountability and empower rights holders. They may include subregional and national
assessments, specific case studies and regional surveys, all of which can be critical in
assessing the direct and systemic impact of trade on the rights of migrants.
75. The value of conducting ex ante human rights impact assessments during trade
negotiations is essential for identifying and mitigating risks, as demonstrated by the
assessment of the Continental Free Trade Area agreement currently being carried out with
the support of OHCHR. An analysis of the assessment stresses the distributional gains for
different segments of the population while emphasizing the importance of recognizing
migrants’ skills and qualifications and the need to continue to develop workers’ skills
through training and education.
76. The European Union systematically conducts sustainability impact assessments
(economic, social and environmental impact assessments) of all major multilateral and
bilateral trade negotiations. The assessments offer projections for migration flows and
specific considerations, depending on the trade partner, relating to skills, sector, visa
provisions, wages, labour conditions and vulnerable social groups.
Strengthening the evidence base for policymaking
77. The Special Rapporteur reiterates the importance of collecting reliable data on all
aspects of the migrant labour market, including irregular migratory channels, recruitment
practices and the informal sector, and data disaggregated by skills, age, gender, race and
national origin, among other characteristics. Having such data would allow States to learn
about and respond to their actual labour market needs. The inclusion of migration in the
2030 Agenda for Sustainable Development provides a framework for data collection, as
States have already collectively agreed that migration is a priority that needs to be
continuously monitored. Under target 17.18 of the Sustainable Development Goals, States
have agreed to enhance capacity-building support to developing countries by the year 2020
to increase the availability of high-quality, timely and reliable data disaggregated by, inter
alia, migratory status.
78. It is equally important that information about the operation of migration programmes
be made publicly available so that migrant workers can confirm the legitimacy of recruiters
and employers. Increased transparency would also ensure public accountability for the
operation of labour migration programmes and make it easier for government agencies and
advocates working to protect migrants’ rights to gain access to information.
Enforceable human rights provisions
79. The Special Rapporteur points out that several trade agreements also include
provisions for termination for material breaches of trade terms in keeping with the Vienna
Convention on the Law of Treaties. Where parties to a trade agreement have required the
inclusion of human rights provisions in the agreement, as the European Union has done,
they must specify that the human rights clause is an essential element of the trade
agreement. Doing so will ensure that they have grounds to terminate the trade agreement
where migrants’ rights have been violated.
General exception clauses
80. General exception clauses have served as an effective means of advancing good-
faith measures by States to pursue public welfare objectives. In the context of the General
Agreement on Tariffs and Trade and WTO, States have already acknowledged that, without
the introduction of appropriate safeguards and implementing national legislation, trade rules
and policies can have an adverse impact on workers’ rights. They have used exception
clauses to address forced and child labour and introduce other protections by requiring the
adoption of labour standards.
81. The Special Rapporteur believes it is promising that the proponents of general
exception clauses have been geographically and economically diverse. Several countries
from Asia and the Pacific and South America have included general exception clauses in
trade agreements. General exception clauses also appear in the treaty programmes of
Canada, Mauritius and Turkey, as well as in multilateral agreements such as the Investment
Agreement for COMESA.
Access to judicial remedies
82. The Special Rapporteur stresses the need for migrants to be able to seek remedies
directly in public courts and tribunals: the independence of the judiciary and the type of
public oversight that are guaranteed by the international human rights framework are
essential to the preservation of fundamental rights. As has been discussed, the complex,
opaque and multilayered nature of the current trade regime obscures migrants’ knowledge
of their rights, legal recourses and available remedies. Under the current dispute settlement
mechanisms included in trade agreements, migrant workers submit to a separate, privatized
standard in order to seek relief for trade infractions and are required to go through
traditional, costly and more onerous administrative channels to obtain remedies. Migrants
also become reliant upon States to pursue their claims where States may have separate,
distinct and, at times, competing interests. Ensuring the availability of outlets to pursue
remedies in public courts would increase State accountability and also inform public
discourse about labour migration programmes and the treatment of migrant workers. It is
also by removing barriers to justice that migrants will be empowered to independently
pursue their own fundamental human rights.
Balanced accountability and representation in international organizations
83. The Special Rapporteur stresses the importance of States holding each other
accountable for the manner in which their citizens are being treated while abroad. Beyond
dispute settlement mechanisms and judicial remedies, States should consider utilizing all of
the international human rights and ILO mechanisms to address concerns about the
treatment of migrant workers, who would be better protected if trade agreements made
explicit reference to international human rights and labour instruments.
84. Greater attention should also be paid to ensuring that international mechanisms in
the areas of trade and migration do not disproportionately penalize developing countries
and that they are accountable and representative of all stakeholders. The Special Rapporteur
believes there is a need to create stronger institutional links between trade and labour rights
in the international framework.
Importance of civil society
85. Trade unions, non-governmental organizations and other civil society actors have
served an important function in raising awareness of the rights of migrants and reporting to
international human rights mechanisms. For example, the Centre for the Rights of Migrants
in Mexico conducts qualitative investigations of migrants’ experiences, reports abusive
recruitment practices, advocates legislative reform, engages in impact litigation, files
complaints under NAFTA and conducts trainings at the Inter-American Commission on
Human Rights.
B. Enhanced migration partnerships and cooperation, including
with the private sector
86. States retain the primary responsibility for addressing the human rights impact of
trade liberalization. However, trade agreements have served as a vehicle for private actors,
including the business community, to understand human rights and offer critical insight into
effective policies for the management of migrant labour. Private actors have also helped
remedy some of the governance gaps related to mobility and trade policies in order to
mitigate liability, develop new markets and advance social responsibility. The United
States-Cambodia Bilateral Textile Agreement initiated a multi-stakeholder policy reform
process whereby the United States offered Cambodia better access to the garment market in
return for improving working conditions in its factories.
87. The Special Rapporteur is aware of several multi-stakeholder action plans that
engage States, the private sector and trade unions in the articulation and promotion of
ethical labour standards for migrant workers. The ASEAN Declaration on the Protection
and Promotion of the Rights of Migrant Workers aims to strengthen the protection and
promotion of the rights of migrant workers by enhancing labour migration governance in
ASEAN countries. The Institute for Human Rights and Business organized a series of
multi-stakeholder round tables during the period 2009-2012 with Governments,
multinational corporations, trade unions and other members of civil society to produce the
Dhaka Principles for Migration with Dignity (2011), which promote the responsible and
ethical recruitment of migrant workers. Business for Social Responsibility led a pilot
project in Malaysia with the non-governmental organization Tenaganita that resulted in the
production of a management toolkit for migrant workers.
88. States have also collaborated to lower the human, social and economic costs of
migration and expand opportunities for migrants to invest their earnings more productively.
The Maya Declaration of the Alliance for Financial Inclusion unites over 57 financial
service providers in emerging and developing economies to promote financial inclusion by,
for example, lowering the costs of remittances and promoting digital financial services.
89. Multi-stakeholder partnerships have also engaged migrants and diaspora
organizations in developing their communities of origin and destination. The Patrimonio
Hoy programme of Cemex, a company operating in the building materials industry,
provides migrant families with financing, construction materials and technical assistance so
they can erect or expand their homes. In the United States, workers participating in the Fair
Food Program play a leading role in monitoring and protecting their rights. Some retail
brands have made a binding commitment to support the enforcement of human rights by
leveraging their purchasing power.
VI. Conclusions and recommendations
A. Conclusions
90. The development of international trade is in the interest of all, but respect for
the human rights of all individuals, regardless of their status, must be the
fundamental principle that guides economic growth and advancements in social
welfare.
91. The Special Rapporteur realizes that there is no one-size-fits-all solution to
today’s global challenges but he hopes that shedding light on this important area and
offering recommendations will serve as point of departure for further exploring the
issues and identifying practical solutions. It is only if we take active measures to merge
human rights and trade considerations that we will mitigate the inherent power
imbalances in the global economy and the asymmetrical emphasis on economic
efficiency and short-term gains to the detriment of migrant labour. Facilitated and
well-regulated mobility that is supported by comprehensive and robust institutional
frameworks is necessary to ensure inclusion and equity in the enjoyment of the
benefits of trade.
B. Recommendations
92. To address the direct impact of international trade on the human right of
migrants, the Special Rapporteur recommends that:
(a) States ratify the core international human rights treaties, particularly
those that recognize the rights of migrant workers, such as the International
Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, the ILO fundamental conventions, the ILO migrant workers
conventions (the Migration for Employment Convention (Revised), 1949 (No. 97), and
the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)), other
ILO conventions (particularly, the Labour Inspection Convention, 1947 (No. 81), the
Contracts of Employment (Indigenous Workers) Convention, 1947 (No. 86), and the
Domestic Workers Convention, 2011 (No. 189)), all other conventions that may offer
protections for migrant workers, the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime, and the Convention
relating to the Status of Refugees;
(b) States immediately begin to include explicit references to international
human rights and labour instruments in all new and renegotiated trade agreements;
(c) States ensure that trade and mobility agreements do not erode existing
social and mobility protections granted through commitments in other agreements;
(d) States and international organizations develop a global mobility
framework, in consultation with trade unions and civil society, and include the
framework in trade agreements with a view to protecting the rights of migrants;
(e) States strengthen monitoring and enforcement of labour standards in all
stages of the migratory process, from pre-departure and recruitment in the country of
origin to employment in the destination country; extend oversight to traditionally
unregulated and informal sectors and include labour inspections and auditing in
value-addition and supply chains; end impunity for abusive immigration officials,
recruitment agents, employers and others for violating migrants’ rights, including
through the use of sanctions and monetary fines; and adopt legislation, allocating
appropriate resources and pursuing ministerial consultations if a trade party has not
complied with trade terms;
(f) States adopt an all-of-government approach to migration and ensure
that national human rights institutions and ombudspersons are trained and mandated
to report on violations of migrants’ rights;
(g) States protect the rights of migrant workers to unionize and engage with
trade unions and migrants’ associations in the development of institutional
frameworks relating to trade;
(h) States ensure that trade agreements include measures to reduce the
social and economic costs associated with migration such as: establishing firewalls
between immigration enforcement authorities and agencies that provide public
services; ensuring the right to work; overseeing recruitment processes; ensuring the
portability of social security and other benefits; reducing the costs of remittances;
removing obstacles to issuance of visas; and ensuring the recognition of professional
qualifications, among other measures;
(i) States ensure that trade agreements include provisions for migrants to
directly access public courts and tribunals, including by ensuring the availability of
translation and legal resources for migrants to file individual or collective complaints
where their rights have been violated as a result of a trade agreement; and monitor
access to labour-related administrative services, tribunals and courts to ensure that
migrants do not face obstacles in accessing effective relief for violations of their rights;
(j) States and international organizations consider a cooperation
framework agreement between WTO and ILO to strengthen institutional links
between labour rights and trade, including through the allocation of funding (such a
mechanism may provide for the development of guidelines, sharing of good practices
and a dispute settlement mechanism);
(k) States, civil society, migrants’ associations and trade unions invest in the
targeted collection of data to increase understanding of the impact of trade
agreements on the human and labour rights of migrants and ensure the information is
publicly available; and conduct studies that include data disaggregated by gender,
age, race and national origin, among other categories, on recruitment and the
irregular, informal and low-skill sectors;
(l) States collaborate towards the development of multi-stakeholder action
plans that engage employers, trade unions, migrants’ associations and other members
of civil society in the promotion of decent work and share best practices;
(m) States explore other programmes to engage the private sector and
include in trade terms a commitment to, among other things migrant outreach, legal
expertise to strengthen labour laws, assistance to trade unions, training courses for
labour inspectors and pre-departure recruitment and orientation services, and, in
order to ensure the sustainability of these initiatives, include in trade agreements
provisions for the financial and other resources necessary to administer them.
93. To address the structural impact of international trade on the human rights of
migrants, the Special Rapporteur recommends that States:
(a) When negotiating trade agreements, seek technical support from United
Nations organizations and specialized agencies, notably OHCHR, ILO, WTO and
UNCTAD, to help ensure that the relevant provisions in such agreements respect,
promote and fulfil international human rights standards;
(b) Explore, jointly with migrants, migrants’ associations and trade unions,
opportunities to increase the level of public involvement in the negotiation and
drafting of trade agreements, which would include disseminating information during
trade negotiations and introducing a range of participatory mechanisms that would
enable migrants to submit queries, comment on or take part in the negotiation and
drafting of all relevant investment and trade agreements;
(c) When entering into trade agreements, undertake comprehensive ex ante
and ex post human rights impact assessments that consider the rights of migrants
through direct consultations with migrants, migrants’ associations and trade unions,
and, on the basis of these assessments, include relevant general exception clauses and
other compensatory, adjustment, grievance and remedial mechanisms — which may
include minimum wage provisions, welfare funds to support migrant workers,
strengthened consular support, voluntary insurance schemes for migrants and other
housing or transitional assistance — and termination clauses, among other measures;
(d) Ensure that gender-specific considerations are adequately integrated
into the development of such human rights impact assessments so that the impact of
trade agreements on the human rights of migrant women and men are identified and
effectively mitigated;
(e) Ensure that child-specific considerations are adequately integrated into
the development of such human rights impact assessments so that the impact of trade
agreements on the human rights of migrant children are identified and effectively
mitigated;
(f) Involve representatives of migrants in the negotiating process for all
bilateral and multilateral trade agreements, including representatives of vulnerable
groups, when human rights impact assessments have identified potential issues
relating to migrants;
(g) Include provisions for labour mobility in multilateral and regional trade
agreements, rather than in informal bilateral labour mobility commitments, with full
and explicit respect for migrants’ rights;
(h) Ensure that dispute settlement mechanisms included in all new and
renegotiated trade agreements do not contravene States’ abilities to protect migrants’
rights;
(i) Require annual reporting on the impact of their trade and investment
agreements on human rights in each country and make the information publicly
available.
94. The Special Rapporteur recommends that the United Nations and related
organizations:
(a) Ensure that human rights considerations related to trade and investment
agreements are included in State reports to the international human rights
mechanisms;
(b) Continue to provide States, the private sector, trade unions and other
civil society actors with information, guidance and best practices aimed at protecting
the rights of migrants in the context of trade;
(c) Continue to provide States with technical and capacity-building
assistance in conducting human rights impact assessments and in adequately
supporting the work of national human rights institutions and ombudspersons;
(d) Ensure ongoing collaboration and mainstreaming of human rights and
labour standards, including all those relating to migrants, among all United Nations
and related agencies that work on issues relating to investment and bilateral and
multilateral trade agreements, including OHCHR, ILO, WTO and UNCTAD;
(e) Strengthen the evidence base for policymaking in trade as it pertains to
the rights of migrants through targeted consultation and research, including through
the collection of data disaggregated by gender, age, national origin and race, among
other categories, on recruitment and on informal and irregular channels.