The Protection of Documented Migrant Workers’ Right to Freedom of Association in International law: An Appraisal of the Case of Cameroon
Keywords:
workers’ rights, Protection, Freedom of Association, Migrant Workers, CameroonAbstract
This paper examines the protection of the rights of migrant workers to freedom of association in Cameroon as the basis of the attainment of all other work-related rights under international law. The paper conceptualizes the term “migrant worker” and analyses their protection under the International Labour Organization (ILO) Convention 97 on migration for employment 1949, Convention 143 on migrant workers (Supplementary Provisions)1975 and their two recommendations amongst others, and the United Nation Convention on the Protection of the Rights of all Migrant Workers and Members of the families as well as the Cameroon Labour Code of 1992. In this light, the paper discusses the extent to which Cameroon honours her international obligations under international labour instruments regarding the protection of migrant workers and their rights to freedom of association. The scope of the freedom of association discussed herein is limited to the right of migrant workers to join trade unions. The arguments in this paper are buttressed by the regular referencing of labour practices obtained in other ILO member states like the Gulf States and South Africa. This paper concludes by arguing that Member States ought to review their commitments in the enforcement of the rights of migrant workers to freedom of association because being members ILO confers on them the obligation to protect this right.
References
1. Like the present socio -political crisis in Cameroon that has led to the movement of many Cameroonian to other states such as Nigeria, Ghana, USA, Belgium among others. See generally V. Chetail., Code of International Migration Law, Brussels, Bruylant, 200 8, in C. Papinot., ‘International protection of migrant workers’ PhD thesis Paris West University Nanterre, 2014, P14.
2. See ILO., International Labour Migration and Development: The ILO Perspective, Geneva, International Labour Office, 2007, P.1, See also I nternational Organization for Migration (IOM) ‘World Migration Report’, 2018, P. 3. The IOM is not an entity within the United Nations system, but is an inter -governmental organisation (IGO) whose members are bound by a constitution, under which membership is confined to States with a demonstrated interest in the principle of free movement of persons, together with States that were previously members of the Intergovernmental Committee for European Migration. There are currently 157 Member States, and numerous other entities have observer status (including ten States as of 2015). See generally International Organization for Migration (IOM), at http://www.iom.int/cms/en/sites/iom/ home/about-iom-1/members-and-observers.html accessed on 29–4–2019.
3. The main stat istics of international migration are offered by the United Nations, Department of Economic and Social Affairs (UN DESA), the United Nations High Commissioner for Refugees—The UN Refugee Agency (UNCHR), the Organization for Economic Cooperation and Development (OECD), and the International Organization for Migration (IOM),. Based on these migration databases, statistics show that, globally, the total number of migrants has increased from 94 million in 1970, to 153 million in 1990, reaching around 244 millio n in 2015 as seen above, from the total world population of about 7.3 billion people (meaning 1 person in every 30 people). Still, as a share of the world’s population, the migration flow is relatively steady, representing 2.3% in 1970, and 3.3 in 2015. Ar ound 75% of international migrants in 2015 (almost 157 million) targeted the “high-income economies . . . compared with 77 million foreign - born who resided in middle -income countries (about one -third of the total migrant stock) and almost 9 million in low-income countries in the same year.” Out of 244 million migrants in 2015, the largest share was for Europe (over 31%), Asia (almost 31%), and North America (over 22%). In Europe, the highest migrants’ allocation was for Western Europe (36%) and Eastern Euro pe (26%) with a total of 76 million migrants in 2015. The most preferred European countries by migrants in 2015 were: Germany (12 million migrants), the United Kingdom (8.5 million), France (7.8 million), Spain (5.9 million), Italy (5.8 million), Sweden (1 .6 million), Austria (1.5 million), Belgium (1.4 million), Denmark (572 thousand), and Finland (315 thousand). The main origin countries of migrants into European regions were the Russian Federation (over 6 million), Poland (3.6 million), Romania (almost 3 million), and Morocco (2.5 million). For 2016 compared to 2015, the migration flows increased by 30% in Germany, 4% in France, 7% in Belgium, 18% in Spain, 26% in Sweden, and decreased by 6% in the UK (mainly due to the BREXIT vote in June 2016), and by 5 % in Denmark. See generally G. Noja et al., ‘Migrants’ Role in Enhancing the Economic Development of Host Countries: Empirical Evidence from Europe’, Journal of environmental, cultural, economic, and social sustainability of human beings (Sustainability), 2018, P. 2.
4. See World Commission on International Migration (WCIM), ‘Migration in an Interconnected World: New Perspectives for Action’, Geneva, 2005, P. 1.
5. ILO, "ILO Study on International Labor Migration", Geneva, 2010, P. 201.
6. According to Mauro and others, Malaysia, Singapore, and Thailand constitute immigration hubs in the South East Asia with most migrants coming from Cambodia, Myanmar, Indonesia, The Philippines and Vietnam. See generally T. Mauro et al., Migrating to Opport unity: Overcoming Barriers to Labour Mobility in Southeast Asia, 2017.Available at https://doi.org/10.1596/978 –1– 4648–1106–7-ch1. Accessed on 30–4–2019.
7. These workers travel mainly to the countries of the Arabian Gulf and also to Jordan and Lebanon. The si x states of the Gulf Cooperation Council (GCC), Bahrain, Kuwait, Qatar, Oman, Saudi Arabia, and the United Arab Emirates (UAE), host approximately 10 million foreign workers, with the largest number (8.8 million) in Saudi Arabia. In several cases, the numb er of foreign workers in the country exceeds the native population substantially. See generally G. S. Manseau ‘Contractual Solutions for Migrant Labourers: The Case of Domestic Workers in the Middle East’, 2006, P.26. Available at http://beta.Nottingham.ac .uk/hrlc/documents/publications/ hrlcommentary2006/migrantlabourers.pdf. Accessed on 30–4–2019.
8. Since the 1970s, migrant labourers, especially those who perform domestic work, have been in high demand in the Middle East. Currently, approximately 10 million migrant workers, primarily from Southeast Asia, South Asia or Africa, live and work in these countries. Their native countries benefit greatly from these workers’ remittances and encourage migration; the host countries also benefit from cheap labour but p rovide almost no protection against abuse of workers by the private sector that hires them. The workers themselves flock to the region for the promise of high salaries, but as temporary workers tied to their employers, they are frequently placed in positio ns of extreme vulnerability with little recourse to justice. It is contended in this study that one solution to the problem of abuse of migrant workers generally and domestic workers, particularly in most of these Middle East countries, is to establish and enforce a standard working contract for all migrant workers in various domains. See generally Manseau ibid at P. 27.
9. Temporary work overseas may be very beneficial to workers since jobs in the Middle East offer wages that eclipse those available in sendin g countries, and provide employment opportunities which may not exist at home. Increased financial stability available to workers after working for several years in the Middle East may enhance a worker’s social status at home and provide a means of support for children, education and investment that would be inaccessible otherwise. See generally Eelens, Schampers and Speckmann., Labour Migration to the Middle East: From Sri Lanka to the Gulf, London, Routledge, 1992, P. 1.
10. The right to freedom of association is a Core labour right. Core labour rights as conceptualized in this paper are taken to include; workers’ trade union rights (the rights to freedom of association, Collective bargaining and the right to strike), employment and occupational non -discrimination and freedom from forced labour as contemplated by the ILO Declaration on the Fundamental Principles and rights at work, 1998 and by extension the right to work. Though the ILO does not contemplate the right to work as core labour right, these scholars argue that the right to work is core to employment and is equally an enabling right since as without the right to work, other work-related rights such as the right to health and safety, rest and leisure, remuneration, amongst others will be unenforceable or simply unattainable.
11. Article 11 (1).
12. Usher E. Migration and labour. In: Usher E, editor. Essentials of migration management: a guide for policy makers and practitioners. Geneva: United Nations Publications; 2004.
13. See D. Keane and N. Mc Geehan., ‘Enforcing Migrant Workers’ Rights in the United Arab Emirates’, International Journal on Minority and Group Rights, Vol. 15, 2008, PP. 81 –115. If migrant workers are so prohibited from forming and joining trade unions of their choosing, then it will be practically impossible for them to enjoy their rights to collective bargaining and strike, since as these rights constitute an intrinsic corollary of the right to freedom of association for trade union purposes.
14. The situation is even worst in the UA E where the 2007 Labour law does not provide for freedom of association and collective bargaining. In Qatar, the situation is not different as article 116 of Law No. 14 explicitly denied migrant workers the right to freedom of association, collective bargaining and the right to strike.
15. P. Guchteniere and A. Pécoud., ‘Introduction: The UN Convention on Migrant Workers’ Rights’, in P. de Guchteniere, A. Pécoud and R. Cholewinski. Migration and Human Rights, The United Nations Convention on Migrant Workers’ Rights, Cambridge: Cambridge University Press, 2009, PP. 2–3.
16. Such as the one which recently occurred in South African commercial capital, Johannesburg in early September 2019 leading to the death of many Nigerians and nationals from other Africa n countries. The main cause of xenophobia in South Africa as its supporters, claim is centered on the fact that most of the South African jobs has been taken by foreigners, while most nationals remain unemployed. See generally https://www.bbc.com/news/worl d africa -47800718, accessed on 4/9/2019.
17. See International Labour Conference, Report VI, ‘Towards a fair deal for Migrant Workers in the Global Economy’, 2004, P. 41.
18. J. Bustamante., ‘Immigrants’ Vulnerability as Subjects of Human Rights’, International Migration Review, Vol. 36, 2002, P. 340.
19. See R Al-Ajlani., ‘The Legal Aspects of International Labour Migration: A Study of National and International Legal Instruments Pertinent to Migrant Workers in Selected Western European Countries’, PhD thesis University of Glasgow, 1993, P.4.
20. The Declaration on Fundamental Principles and Rights at Work was adopted in 1998 as seen above. It is the view of the ILO that all its members, even if they have not ratified the Conventions mentioned in this declaration, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions.
21. That is the UN, ILO and other regional and sub-regional bodies.
22. See ILO Convention 97 on Migration for employment, 1949, ILO Migration for Employment Recommendation 86, 1949, ILO Convention 143 on migrant workers (supplementary Provisions), 1975, Migrant Workers Recommendation 151, 1975, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,1990 amongst other ILO and UN instruments.
23. This is true as the vulnerability of this category of workers warrants the defence of their interests, which can only be achieved if they constitute themselves into trade unions. Migrant workers play a very vital role in the development of both the country of destination and origin in that, in the countries of origin they do so by alleviating pressures on labour markets as well through remittances, skills acquired during migration, and investments by expatriate communities. In countries of destination, they contribute to development by meeting demand for workers necessary for economic activities, by increasing demand for goods and services and by contributing their entrepreneurial skills. As such it very necessary to safeguard their trade union rights which are one of the most important tools used to achieve their work related interests.
24. See paragraph 2 of the Preamble to the ILO Constitution, 1919.
25. See ILO, ‘The Dignity and Rights of Migrant Workers in an Irregular Situation’, 1999, P. 1, at https://www.ilo.org/wcmsps/wcms-177275.pdf. Accessed on 25.6.2019.
26. This convention was adopted on the 1st of July 1949 and entered into force on the 22nd Jan 1952. This is the first ILO Convention focusing exclusively on migrant workers.
27. This convention was adopted on th e 24th June 1975 and it came into force on the 9th of December 1978. It addresses issues on migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers.
28. For instance, the Spanish Law of 2000 on the Rights and Freedoms of Foreigners makes the exercise of trade union rights by migrant workers dependent on authorization of their presence or residence in Spain. On this, the ILO Committee on Freedom of Association argues that the Spanish Foreigners’ Law which ma kes the exercise of trade union rights by migrant workers dependent on authorization of their presence or residence in Spain is not in conformity with the broad scope of Article 2 of ILO Convention 87 on Freedom of Association and Protection of the Right to Organize, 1948. See generally Case No. 2121 on the complaint by the General Union of Workers of Spain (UGT ); ILO , Committee on Freedom of Association, Report No. 327, Vol. LXXXV, 2002, Series B, No.1, paras. 561 –562, available at http://webfusion.ilo.org/public/db/ standards/normes/libsynd/index.cfm?hdroff=1. Accessed on the 2/7/2019.
29. See ILO, ‘the Dignity and Rights of Migrant Workers in an Irregular Situation,’ 1999, op cit., at P. 1.
30. The ILO argument that the respect for fundamental rights and princip les at work is not limited by a worker’s nationality or immigration status as seen above is reinforced by Article 1 of Convention No. 143(Migrant Workers (Supplementary Provisions) Convention, 1975) which requires States Parties “to respect the basic human rights of all migrant workers”. The ILO Committee of Experts on the Application of Conventions and Recommendations views this provision as referring to “the fundamental human rights contained in the international instruments adopted by the UN in this doma in, which include some of the fundamental rights of workers”. This interpretation is particularly important because it reflects the interdependence between international labour standards and human rights law. See generally International Labour Conference, 87th Session, 1999, Report III (1B), ‘Migrant Workers: General Survey on the Reports of the Migration for Employment Convention (Revised) (No. 97), and Recommendation (Revised) (No. 86), 1949, and the Migrant Workers (Supplementary Provisions) Convention (No. 143), and Recommendation (No. 151), 1975’, Geneva, 1999, P. 108. Indeed, regularization of migrant workers in general and those in an irregular situation in particular has been and continues to be viewed by the ILO as an important step to officially re cognize their presence in the labour market and protect their human and labour rights as well as prevent their marginalization, thus increasing the prospects for improved social cohesion. In this light, the ILO has argued that the human rights of all migrant workers, regardless of their status, should be promoted and protected. In particular, all migrant workers should benefit from the principles and rights in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its follow -up. See generally ILO., Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights- based approach to labour migration, Geneva, ILO, 2006, P. 55.
31. Section 1 (2).
32. Section 27 (2).
33. Section 27 (3).
34. Section 27 (4).
35. Section 25 (2) of the Cameroon Labour Code.
36. https://www.businessincameroon.com/index.php/companies/1307–7263-in-cameroon-the- informal-sector-weighs-as-much-in-gdp-as-in-south-africa-and-mauritius-but-less-than-in-nigeria. Accessed December 15, 2020.
37. Section 80 states that the maxi mum number of hours of work weekly shall not exceed 40 hours for non-agricultural activities and 48 hours for agricultural activities.
38. https://www.worldbank.org/en/news/feature/2012/02/21/report-urges-a-rethink-of-cameroons- informal-sector-as-nation-longs-for-full-employment
39. Section 4 (1).
