Migrant rights and Bangladesh

The Ratification of the Migrant Rights Convention: Bangladesh Perspective
By DR. UTTAM KUMAR DAS

Bangladesh is a major country of origin for migrant workers. It is estimated that more than seven million Bangladeshis are now working and living abroad. Those migrant workers are also contributing hugely to our foreign exchange earnings. In 2009, the amount was reportedly 75,000 crore taka (about US$ 10 billion).

Though the sector has huge potential, given the demand for migrant workers in the Middle Eastern, West European, African and North American countries, there are challenges as well due to the low skills of the migrant workers, lack of capacity in both public and private sector in managing the migration sector, and lack of regulatory framework and other measures.

The existing institutions (i.e., Ministry of Expatriates Welfare and Overseas Employment, Bureau of Manpower and Training, and District Employment and Manpower Office etc) also have their own limitations with regard to manpower, capacity, technological, and other logistical aspects to better manage the sector. The State is yet to ratify the vital international instrument in this regard, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990.

THE CONVENTION

The Convention is considered as a human rights instrument. It creates new grounds by extending protection to migrant workers and members of their families globally.

The Convention came into force on 1 July 2003. The adoption of this instrument is viewed as “…how the international community conceives of the application of human rights in its provisions for equality of treatment between different groups of migrant workers: male and female, documented and undocumented, and also between the nationals and non-nationals,” as Dr. Refaat Ahmed (who is now a Justice at the High Court Division of the Supreme Court of Bangladesh) commented in his book, Forlorn Migrants: An International Legal Regime for Undocumented Migrant Workers (Dhaka: UPL, 2000, p. 36).

As of 10 October 2010, the number of signatories to the instrument stood at 31 (including Bangladesh) while number of ratifying State parties was 43. Bangladesh signed the instrument on 7 October 1998 though the Law Commission recommended its ratification.

RIGHTS IN THE CONVENTION

The human rights are applicable to all migrant workers irrespective of their legal status, while other rights are applicable only to migrant workers in a regular situation. However, the Convention does not exclude undocumented workers totally. It has provided provisions for the “just treatment” for those who are in an undocumented or irregular situation. At the same time, the instrument seeks to draw the attention of the international community to the growing trend of dehumanization of the migrant workers and members of their families as well.

The Convention provides following rights to migrant workers (and members of their families):

• Right to life;

• Freedom of movement (Art. 8); [except for those are provided by law for national security, public order, public health and public morals etc].

• Right to equality;

• Prohibition against cruel, inhuman or degrading treatment or punishment;

• Freedom from slavery or servitude and forced or compulsory labour;

• Freedom from arbitrary expulsion;

• Right to privacy; etc.


RESPONSIBILITIES ON STATE PARTIES

For the State Parties to the Convention, there are two types of responsibilities. For a State which is sending migrant workers, the responsibilities are:

1. Allow its citizens seeking employment abroad and their return to the country;

2. Pre-departure information on the working conditions and other requirements;

3. Facilitate the exercise of the political rights by the migrant workers in the country of origin;

4. Provide adequate consular services;

5. Regulate recruitment procedures, which includes prevention of abuse in the recruitment practices;

6. Facilitate return of migrant workers; etc.

For the receiving States (if a party to the Convention), the obligations are:

1. Ensure liberty and security of person of the migrant workers; if deprived of shall be treated with humanity and with respect for inherent dignity of the human persons;

2. Avoid arbitrary deprivation of property;

3. Ensure safe working and living condition;

4. Ensure equal status with regard to access to court and tribunals;

5. Allow association and trade union activities;

6. Right to be recognized as a person before the law;

7. Facilitate family reunification; etc.


BANGLADESH PERSPECTIVE

Almost a decade has passed since Bangladesh has signed the Convention; however, the State is yet to ratify it. Bangladesh also lacks a comprehensive legal framework to govern the migration sector. The ratification to the Convention by Bangladesh would contribute to streamlining the administrative and legal frameworks and measures and initiating related institutional mechanisms among others. However, ratification will bring no benefit if it is not adopted in the domestic legislation and implemented progressively.

There will be no additional obligations on Bangladesh, if it ratifies the Convention. The Constitution of Bangladesh guarantees the following rights for the citizens. Mentionable among these are:

1. Equal protection of law;

2. Right to life and liberty;

3. Safeguards as to arrest and detention;

4. Prohibition of forced labour;

5. Protection in respect of trial and punishment;

6. Freedom of thought, conscience and religion;

There is a remedial mechanism as well if one is deprived of those rights [i.e., Right to enforcement of these rights]. As a citizen of Bangladesh, wherever one goes (as a migrant worker) s/he is entitled to have the Constitutional protection of respective rights; the State (Bangladesh) has a role here to ensure and facilitate the enjoyment and protection of those rights.

There are misconceptions that ratification of the Convention might make the labour receiving countries unhappy. This is not the case and also not justifiable through empirical evidences. The experiences of major labour sending countries like Philippines and Sri Lanka do not support that. After ratification of the Convention those States have gone for gradual streamlining of the migration sector through adopting legislative frameworks, institutional arrangements, skill development of migrant workers,

bringing accountability and transparency in the management, and effective monitoring mechanisms among others.

A quarter is reportedly propagating that if Bangladesh ratifies the Convention it would bring “more obligations” to the State for the incoming migrant workers here in Bangladesh. They are saying that through the ratification the Convention, theState would have more obligation with regard to “… respect and ensure the rights to freedom of movement, freedom from torture, freedom of thought, expression, conscience and religion, right to property, right to join freely any trade union etc. without any distinction of any kind...,”...

Only documented migrant workers (and their families) are entitled to have right to liberty of movement in the territory of the State of employment. However, this freedom is again restricted by the relevant laws of the State to protect national security, public order, public health and morals. Those rights have bearing effects in the International Covenant on Civil and Political Rights, 1966 (ICCPR) which Bangladesh has already ratified.

Right to property will be regulated by the respective law of the State; however, migrant workers could not be arbitrarily deprived of their property rights, which is a rule of a civilized law.

Freedom from torture is prohibited in Art 7 of the ICCPR. Bangladesh is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which obliged the State Parties to “… take effective legislative, administrative, judicial or other measures to prevent acts of torture…”

Freedom of thought, expression, conscience and religion is guaranteed for “everyone” in the ICCPR (Art. 18); [Bangladesh is a party to that instrument already]. As it has been explained earlier what are the obligations imposed by the Convention for a ratifying State; those are nothing more than the Constitutional and other obligations already in place in case of Bangladesh [i.e., equal protection of law for every other person(non-citizen), Art. 31 of the Constitution]. At the same time, nothing in the Convention shall have the effect of relieving migrant workers (and their families) from either the obligation to comply with laws and regulations of a State (of employment).

I argue for immediate ratification of the Convention by Bangladesh. This will boost the image of the State in international community and give a moral position to negotiate with counterparts to promote safe migration for its nationals and to protect rights of the Bangladeshi-origin migrant workers. At the same time we should immediately go for adoption of appropriate regulatory regime and their enforcement.

Bangladesh is now a major player in the United Nations system and its human rights mechanisms. Therefore, the ratification of the Convention will pave a way for showing its commitment and credibility for the cause of promoting and protecting rights of the migrant workers.

(This article was presented in a seminar in Dhaka organized by WARBE Development Foundation and its partners on 11 October 2010).

*Originally appeared in the PROBE News Magazine, Dhaka, 15-21 October 2010; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=6432

The seamy underbelly of migration

Columns
The seamy underbelly of migration*
More opportunities for legal immigration reduce dangerous alternatives.

Published: 02/09/2010

Uttam Das
udas@mndaily.com

Mr. X, whose name is withheld for confidentiality, is an immigrant from Burma who now holds a green card and permanently resides in California. He has a wife and three children between 2 and 10 years old. Mr. X had become interested, over the years, in bringing his only sister to America to facilitate her higher studies. Unfortunately, Mr. X found he could not sponsor his sister’s immigration to the United States until he became naturalized, which could take three or four years. Motivated by risky success stories, Mr. X arranged for his sister to “marry” a Burmese immigrant in America to facilitate her journey. The so-called bridegroom received $20,000 for the service.

While the two traveled through Bangkok on their way home, immigration authorities smelled something wrong and eventually unearthed the arrangement. The “couple” had to serve detention there for traveling with forged documents. Mr. X’s sister never made it to the U.S.

Mr. Y of Bangladesh is in his mid-20s. He has attempted six times to go to Italy, paying human smugglers almost $15,000. He is still waiting. Stories like these are all true realities in developing and underdeveloped countries — countries that have yet to recognize the economic benefits of globalization.

I attended a two-day conference on migration issues in New York last month. It was jointly organized by the International Organization for

Migration and the Center for Migration Studies. It was aimed to “examine legal and policy perspectives on irregular migration.” A lot of the discussion between attending senior diplomats, U.N. officials, academic experts and advocates centered on U.S. immigration.

When talking about immigration, we need to remember this country needs migrant workers for its own economy. According to IOM, human mobility that takes place outside the procedures established by a state is irregular, or undocumented, migration. However, immigration restrictions and backlogs force individuals to risk their own lives or pay significant amounts of money to enter the U.S., causing some to fall into an exploitative situation.

According to press reports, desperate youth from impoverished Chinese territories pay $40,000 to human smugglers just to facilitate entry into the mainland U.S. This is also true for migrants from other Asian, Eastern European, African, Central and Latin American countries.

As a destination country, the U.S. holds all rights to manage its own borders, immigration and naturalization systems. Surely, the economy and national security dictate parts of immigration policy.

Gabriela Villareal, Immigration Advocacy Policy Coordinator of the New York Immigration Coalition, could not control her emotions when she explained that as a U.S. citizen, if she applies today to sponsor her siblings’ emigration from the Philippines, it would take 20 to 22 years, despite the fact that our country has immediate need for migrant workers. There was no one to give a logical answer to Villareal, but all underscored the need for an immigration overhaul.

The New York conference recommended the formulation and implementation of comprehensive policies, laws and administrative arrangements to address immigration issues progressively given national, regional and international priorities. Consistency with international legal and human rights norms and practices is needed.

A 2009 study of the Humphrey Institute of Public Affairs showed that increased opportunities for legal migration could curb riskier migration. At the conference, United Nations Development Programme Administrator and former Prime Minister of New Zealand Helen Clark commented, “If there are legal options for migration, that makes a choice. If not, that drives one to migrate in an illegal way.”

Uttam Das welcomes comments at udas@mndaily.com.

All content © 1900 - 2010
The Minnesota Daily
ARTICLE URL: http://www.mndaily.com/2010/02/09/seamy-underbelly-migration
Retrieved at 14:58 CST on Wednesday Feb 10, 2010

*Originally appeared in The Minnesota Daily (Feb 09, 2010).

Bangladesh needs Center of Excellence on Migration Studies*

Migration has always featured prominently in Bangladesh's socio-economic scene and it is gaining more significance with the matter of climate change; this calls for an institution to ensure best benefits from the issue

Dr. Uttam Kumar Das writes from Minneapolis, USA

The migration sector in Bangladesh needs streamlining. Its potentiality and prospective benefits for the country depend how the sector is managed and planned. There is a lot to do in terms of administrative, policy, legal and judicial intervention to get full and sustainable benefit out of the migration sector.

We can not sit idle. Given the situation of global warming and the rising sea level, migration of our population could be a vital way of bailing out.

The big question is, however, how will it be strategized and who will do the job? Is there any institution in place for this purpose? The answer is in the negative.

I devote this piece arguing for a dedicated institution on migration issues in Bangladesh which will be a center of excellence in research, education and training on migration solely. We don’t need such an institute just for the sake of a name. There are too many such commissions now struggling to survive. We don't need such an institution merely to increase the number of such bodies. Seriously speaking, we need an institution which will really work.

There is no denial of the importance of authentic research in planning policies and setting strategies. However, that research has to be innovative and practical oriented.

From my experience, I have seen that the government is doing this on an ad hoc basis: by the official from the related ministries and departments who may not have related expertise and professional skills (which is why such research hardly brings any outcome), or through consultants hired or funded by certain donor agencies. These are short-sighted indeed, and don’t serve the purpose of the country.

There are few non-governmental organizations as well (run by academics mostly). However, these are short-sighted too and their purposes are donor-driven since they depend heavily on outside funding. There is also lack of professional personnel, infrastructure, continuity and follow-ups in their efforts.

For example, there may be huge immigration opportunity for professionals or low-skilled laborers in the United States in coming years, given Mexico; the major country of origin for U.S. immigrants is going to stop its people to move overseas by next 10 to 15 years. This may bring a huge potentiality for Bangladesh’s overseas job market. But who will assess the demand of manpower market there, required skills, and other related matters?

Also given the multi-facet dimensions of migration the proposed institution will have different departments: professional or skill migration, labour migration, climate refugees, forced migration etc.

The center should have expertise on different dynamics of migration: diplomacy, foreign relations, strategic, economic and finance, remittance and banking, skill training, policy, law and human rights, migration studies and research (aimed to higher degrees), conference and seminars, training component, publications and public relations etc. Its motto will be independence, professionalism, accountability, and service to the nation.

It will have partnering centers at different public and private universities and liaison with similar institutions abroad.

Question may arise as to how the funding will come in for such an institution. The initial funding may be sought from international donor agencies like the World Bank, Asian Development Bank, United Nations Development Fund, and International Organization for Migration (IOM).

IOM has supported similar institutions in few countries.

Also, the government can spend a portion of funding from the foreign exchanges earned by the migrants. In 2008, it was a record US$ 9.6 billion. Given the misappropriation of funding from the wage earners’ fund, financial support to the proposed center would be a worthy investment.

In this regard, there is the example of Indian Center for Development Studies (CDS) in Trivandrum. CDS is an autonomous research and teaching institution. It has a 15-member governing body consisting of eminent scholars from various disciplines.

CDS has its funding partially from the government. It heavily depends on its earning from various projects and programmses and endowment funds.

CDS has been running M.Phil and Ph.D. programs under the Jawaharlal Nehru University since 1975.

The writer is an Advocate in the Supreme Court of Bangladesh, and presently affiliated with the Human Rights Center and Law School, University of Minnesota, U.S.A. as a Humphrey Fellow (Fulbright Scholar). Formerly, he worked with the United Nations High Commissioner for Refugees (UNHCR) and International Organization for Migration (IOM) as a Legal and Human Rights Expert. E-mail: udas1971@yahoo.com.

**Published in the PROBE News Magazine (Dhaka, Bangladesh), December 18, 2009- January 28, 2010; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=5738.