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The Role of National Human Rights Institutions to Protect the Human Rights of Migrant Workers:
The Implications of Santa Cruz Declaration

--By Byung Hoon OH, Director of International Human Rights Team, National Human Rights Commission of Korea

Even though a phenomenon of migration is a trend of the international community in the world history, the mobility of people gives rise to a new challenge in the era of globalization. Many of National Human Rights Institutions (NHRIs) gathered together in Santa Cruz, Bolivia, in the end of October, in order to share their concerns about migration and conceive some means. I would like to introduce the important migration issues discussed among representatives of NHRIs and consider implications of such movements.

The Nature of Human Rights of Migrant Workers

Migrant workers have been regarded as a byproduct of economic development. As labor migration means the mobility of workers to seek for money or a better economic condition, consideration has been given mainly to their legal status in receiving countries, not to their fundamental rights including civil, political, social, economic and cultural rights. However, many experts have come to recognize the importance of migrant workers as contributors to host countries rather than as redundancy of domestic labor force. Migrant workers contribute to appeasing the labor shortage in some sectors in which employers failed to find human resources in the domestic labor market, largely attributed to relatively poor working conditions and lower wage. Since the occupations that most migrant workers have do not belong to ?°a decent job?± in the host society, the access of migrant workers to the domestic labor market is not likely to affect the domestic labor force. In this respect, labor migrants are not supplementary workers but complementary ones who work under underpaid conditions. There are many factors to cause the violations of human rights and exploitation of migrant workers. Nevertheless, the issue of migration remains ignored by many receiving countries in which migrant workers are much more demanded in their normal life cycle. Few countries of destination have ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

The Role of National Human Rights Institutions concerning Policy Issues

National Human Rights Institutions are expected to raise awareness of human rights issues in their countries according to the Paris Principles. As the National Human Rights Institutions are guided by international standards, their opinions and recommendations frequently happen to be against the government policy approaches.?

Some kinds of criticism against National Human Rights Institutions may be caused by oppression by their own government, although there are only a few such cases for the last couple of years. If a country pursues only an economic value, the protection of fundamental rights of migrant workers is out of question. In this sense, the United Nations recommended that each country should establish a National Human Rights Institution to complement the government policy. Since the jurisdiction of National Human Rights Institutions varies from country to country, most of National Human Rights Institutions are not influential enough to make a difference in the government policy.

Moreover, the recommendations of National Human Rights Institutions do not legally bind the relevant governmental entities. In order to make up for the lack of capability, National Human Rights Institutions should take international networking into account seriously. If there are some National Human Rights Institutions having conflicts with the governments due to their different positions, the international network of National Human Rights Institutions can come up with the early warning system which draws a serious attention from the international human rights community, warning of a strong possibility to face with a severe pressure. However, most of governments tend to take into account the recommendations and opinions of National Human Rights Institutions as an alternative perspective, even though they do not come into implementation immediately. When it comes to the consensus of National Human Rights Institutions concerning the protection of the human rights of migrant workers, a great deal of disputes are anticipated in their countries. However, the consensus as a form of declaration can be guidance for government to establish or modify its policy to treat migrant workers appropriately. The following contents are selected from the Santa Cruz Declaration on the Human Rights of Migrant Workers.

The Santa Cruz Declaration on Human Rights of Migrant Workers

In order to understand the recent trend to protect human rights of migrant workers, the following points of the Santa Cruz Declaration show the core of international human rights standards.

First of all, National Human Rights Institutions shall advocate for a human rights-based approach to migration and migration movement, in ensuring efficient domestic legal protection of all migrants, including access to justice, non-discrimination and equal treatment. Thus National Human Rights Institutions will play a vital role in promoting a society dedicated to diversity as a positive potential for ensuring a cohesive and harmonious society, building on the fundamental principles of equality and mutual respect.

Secondly, National Human Rights Institutions have to engage in cross-country cooperation and use their networks to communicate on migration issues - between neighboring countries and sending, transit and receiving states.

Thirdly, currently a large number of governments are reluctant to ratify the international convention on migrant workers. National Human Rights Institutions need to analyze the reasons behind non-ratification including misconceptions and other obstacles.

Fourthly, there are the most severe form of migration issues such as human trafficking, smuggling and victimizing of many innocent people. National Human Rights Institutions have to protect the trafficked persons, especially women and children, from harm, threats or intimidation by traffickers and associated persons. Specifically National Human Rights Institutions should contribute to creating, in receiving countries, the conditions for family reunification of migrant workers and the free education of the children of migrants in accordance with international human rights standards.

Lastly, National Human Rights Institutions should include refugees and asylum seekers among the groups requiring special attention.

Conclusion

There is a high expectation from the academia and NGO community that National Human Rights Institutions should be an essential part of a liberal and democratic state in this age of international human rights law.  While government policy focuses on the national interests, National Human Rights Institutions seek for the interests of the international community through domestically as well as internationally implementing human rights instruments. In this respect, governmental bodies and National Human Rights Institutions can be complementarily linked. Specifically, National Human Rights Institutions should conduct research, identify and exchange best practices associated with migration and development including the creative and productive use of remittances to support development. More consideration should be given to public campaigning in order to counteract stereotypes of migrants, and promote the knowledge and respect of their rights.

The Declaration of Santa Cruz presents multiple implications as a guidance for government policy in both receiving and sending countries, even though some parts of the Declaration may be against the interests of some countries. Considering the nature of international human rights instruments, which is not necessarily legally binding but morally binding, the implementation rests on the determination and national atmosphere of the country. However, what matters is that National Human Rights Institutions endeavor to inspire the spirit of human rights into all states all over the world. Without the initiative of National Human Rights Institutions, human rights protection of migrant workers will remain ignored by many states.

Now that all human rights issues and complaints are related with National Human Rights Institutions, they are regarded as an important actor in the process of policy. There are many means including many options offered by the UN treaty bodies, all mechanisms of the Human Rights Council such as Special Procedures, as well as regional mechanisms and regulations. These are the key means of the National Human Rights Institutions to go forward for the effective implementation of the Santa Cruz Declaration. When the human rights of migrant workers are respected, our efforts for a harmonious society will come to fruition.

(China.org.cn)