The Social Protection of Temporary Migrant Workers: An Evolutionary Process
23 Pages Posted: 11 Jul 2013
Date Written: July 9, 2013
For Temporary Migrant Workers (TMW) as workers, the international law of fundamental labor rights (freedom of association, as example) as well as the domestic law in relation to labor standards constitute de jure or de facto an immense patchwork. TMW are at the lower ladder of the typology of migrant rights organised around a mix of “immigration-labour law-social protection” rules: residency, length of stay, worker’s status, explicit statutory exclusion and other factors often deriving from statutory law constitute indirect discrimination against TMW. More specifically, TMW are in need of social protection.
This paper pays attention to the right of TMW to social security and to social protection. Our starting point is the acknowledgment that, according to international human rights law, all TMW are travelling with a bundle of human rights. Our specific aim is to go beyond the wages workers’ issue that shaped the situation of migrant workers over time and to examine the need for social protection of TMW as a human right. A first section will propose a definition of those migrant workers qualified by the literature as ‘second wave’ of TMW. We believe their situation carries some specific manifestations of direct and of indirect discrimination. Section 2 revisits the issue of the definition of social protection as it seems to us that confusion still reigns when time comes to distinguish social security, social insurance and social protection. Section 3 offers an historical and technical overview of the normative evolution of the right to social protection of all migrant workers. Without disregarding the positive achievements realized by bilateral social security agreements in that domain, it concludes that the spirit of consecutive conventions and recommendations adopted by the ILO does not address the reality of fixed-term TMW. May be the 2006 ILO Multilateral Framework on Labour Migration, although not binding, is a more appropriate approach to address such needs. Section 4 examines the right of all migrant workers to social protection as guaranteed by the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which entered in force in 2003. Surprisingly, this Convention does not provide appropriate answers to the needs of short term migrant workers whose needs often rely on a basic system of social protection that is not linked to wages and to contributory benefits. Finally, Section 5 examines the recently adopted UN CESCR General Comment 19 on the right to social security (2009). We believe that this Comment truly captures the essence of the right to equality of treatment that TMW should be able to benefit from. In conclusion, the crafting of the migrant workers’ right to social protection has truly been an evolutionary process and it is still unfolding. As more and more TMW are explicitly not welcomed to legally establish themselves in the country where they work, such evolution is welcomed.
Keywords: Immigration, Migration, Temporary workers, Human rights, Right to social security, Right to social protection
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