The International Labour Organization (ILO) is the United Nations Specialized Agency responsible for establishing and overseeing international labor standards. Its labor standards are set forth in conventions, which are binding on party countries that ratify them, and in nonbinding recommendations and guidelines. The ILO lacks a direct means of enforcement of its conventions, and relies on consensus and persuasion to encourage compliance. While many ILO conventions have been ratified by only a limited number of countries, most countries are members of the ILO, and ILO member states often use ILO conventions and recommendations as broad guidelines for national policies.
ILO conventions and recommendations generally apply to all workers, including migrant workers. Thus the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work requires all ILO member states to comply with certain basic rights for workers: freedom of association and recognition of the right to collectively bargain, the elimination of compulsory labor, the abolition of child labor, and the elimination of discrimination in employment. These fundamental principles apply to all workers, including migrants.
Some ILO conventions and recommendations are particularly focused on migrant workers. These include ILO Convention 97, the Migration for Employment Convention (Revised 1949), and its accompanying recommendation, the Migration for Employment Recommendation (Revised), and ILO Convention 143, Migrant Workers (Supplementary Provisions) (1975), and its accompanying recommendation, the Migrant Workers Recommendation, 1975. Convention 97 was adopted following World War II primarily to address labor migration in postwar Europe. Forty-nine countries have ratified this Convention, including Brazil, Germany, Israel, Norway, Spain, and the United Kingdom. Convention 143 sought to mitigate issues arising in the early 1970s involving irregular labor migration and the abuse of migrants in irregular status. Twenty-three countries have ratified this Convention.
In 1990 the United Nations adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This Convention applies human rights principles to migrant workers and their families, including fundamental human rights, freedom from employment discrimination, the right to freely associate and collectively bargain, the right to receive emergency medical care, and the like. Forty-six countries have ratified this Convention.
A 1998 study of Conventions 97 and 143 by the ILO’s Committee of Experts on the Application of Conventions and Recommendations found that the existing ILO conventions failed to adequately address the changed international context of labor migration. Among other things, the committee noted that the existing conventions were originally conceived with a view to covering migration for settlement rather than temporary migration.
In response, the ILO adopted a new instrument in 2005, the ILO Multilateral Framework on Labour Migration: Non-Binding Principles and Guidelines for a Rights-Based Approach to Labour Migration. The nonbinding Multilateral Framework “is intended to be a guide in the development, strengthening, implementation and evaluation of national, regional and international labour migration policies and practices for improving the governance, promotion and protection of migrant rights and promoting linkages between migration and development.” It consists of fifteen broad principles, and guidelines that may prove valuable in giving practical effect to the principles. In some instances it incorporates by reference other ILO conventions, including Conventions 97 and 143, and ILO Convention 181, the Private Employment Agencies Convention, 1997. It also incorporates by reference the UN Migrant Workers Convention. In addition, Annex II to the Multilateral Framework sets forth examples of best practices that are consistent with the goal of furthering the broad principles.
II. Eligibility for Admission of Temporary Workers
Principle 4 of the Multilateral Framework provides: “All States have the sovereign right to develop their own policies to manage labour migration. International labour standards and other international instruments, as well as guidelines, as appropriate, should play an important role to make these policies coherent, effective and fair.” The Multilateral Framework thus preserves the authority of nations to develop their own policies with respect to migration, including policies respecting the eligibility for admission of temporary workers. Guideline 4.1 calls for “formulating and implementing coherent, comprehensive, consistent and transparent policies to effectively manage labour migration.”
The compendium of best practices in Annex II of the Multilateral Framework describes several illustrative programs or practices by countries that allow temporary workers to be admitted, including Australia, Canada, Germany, and Spain. For example, it mentions Germany’s seasonal foreign worker program, in which migrant workers are admitted for up to ninety days if nationals are not available to work in industries such as agriculture, forestry, and hotels.
III. Recruitment and Sponsorship
With respect to labor recruiters, Principle 13 of the Multilateral Framework states: “Governments in both origin and destination countries should give due consideration to licensing and supervising recruitment and placement services for migrant workers in accordance with the Private Employment Agencies Convention, 1997 (No. 181), and its Recommendation (No. 188).” ILO Convention 181 provides for the licensing or certification of private employment agencies by member states. It requires member states to take steps to prevent abuse against persons placed in their territory by recruitment agencies, establish procedures to investigate complaints, and provide protection of workers’ rights.
Guidelines 13.1 through 13.8 in the Multilateral Framework suggest such measures as establishing standardized licensing and certification; requiring that migrant workers receive understandable and enforceable employment contracts; requiring recruitment services to avoid placing workers in jobs involving unacceptable hazards or abusive or discriminatory treatment; establishing protection systems such as insurance or bond arrangements to compensate migrant workers for monetary losses caused by recruitment agencies; and making sure that recruitment fees are not borne by migrant workers.
With respect to policies requiring employer sponsorship as a prerequisite to admission of migrant workers, the Multilateral Framework appears to recognize such policies as legitimate means by which states may exercise their sovereign right to regulate migrant labor.
IV. Visa Conditions
With respect to conditions on migrant workers’ visas and related policies, such as the extent to which such workers’ permitted stay is tied to the sponsoring employer, whether there is a path to permanent status, and the like, the Multilateral Framework preserves the prerogative of sovereign states to regulate, within the parameters of the fundamental principles of workers’ rights, the conditions of employment migration. The Multilateral Framework does not prescribe particular visa requirements or proscribe the use of caps or quotas.
Guideline 5.5 states that governments should “ensur[e] that temporary work schemes respond to established labor market needs, and that these schemes respect the principle of equal treatment between migrant and national workers, and that workers in temporary schemes enjoy the rights referred to in principles 8 and 9 of the Framework.” (Principle 8 concerns human rights, including those in the 1998 ILO Declaration of Fundamental Principles and Rights at Work. Principle 9 concerns application of international labor standards to migrant workers.) Guideline 9.7 provides that governments should “ensur[e] that restrictions on the rights of temporary migrant workers do not exceed relevant international standards.”
Within the best practices compendium, the Multilateral Framework notes as good examples that Australia allows temporary workers to apply for permanent residency and that Canada allows temporary workers who lose their jobs through no fault of their own to remain to seek other employment.
V. Admission Status of Family Members
The Multilateral Framework mentions family reunification efforts, but it does not promote family reunification for temporary migrant workers as an international standard. Principle 2 concerns international cooperation to promote managed employment migration; within that principle, guideline 2.3 states that governments should pursue bilateral and multilateral agreements between destination and origin countries to address topics such as admission procedures, flows, and family reunification. Principle 14 concerns social integration and inclusion, and guideline 14.10 states that governments should “facilitat[e] the reunification of family members of migrant workers as far as possible, in accordance with national laws and practice.”
Prepared by Luis Acosta
Senior Legal Information Analyst
 How International Labour Standards Are Used, ILO, http://www.ilo.org/global/standards/introduction-to-international-labour-standards/international-labour-standards-use/lang--en/index.htm (last visited Feb. 21, 2013).
 ILO, 1998 Declaration on Fundamental Principles and Rights at Work, http://www.ilo.org/dyn/normlex/en/f? p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453911:NO.
 ILO, Convention (No. 97) Concerning Migration for Employment (Revised), July 1, 1949, 120 U.N.T.S. 71, http://treaties.un.org/doc/Publication/UNTS/Volume%20120/volume-120-I-1616-English.pdf.
 ILO, Migration for Employment Recommendation (Revised), 1949 (No. 86), http://www.ilo.org/dyn/ normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:R086.
 ILO, Convention (No. 143) Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, June 24, 1975, 1120 U.N.T.S. 323, http://treaties.un.org/doc/Publication/UNTS/Volume%201120/volume-1120-I-17426-English.pdf.
 ILO, Migrant Workers Recommendation, 1975 (No. 151), http://www.ilo.org/dyn/normlex/en/f?p=NORM LEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312489:NO.
 Int’l Lab. Office, International Labour Migration: A Rights-Based Approach 128 (2010), http://www.ilo.org/public/english/protection/migrant/download/rights_based_approach.pdf.
 Ratifications of C097 – Migration for Employment Convention (Revised), 1949 (No. 97), ILO, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312242:NO (last visited Feb. 21, 2013).
 Int’l Lab. Office, International Labour Migration, supra note 7, at 129.
 Ratifications of C143 – Migrant Workers (Supplemental Provisions) Convention, 1975 (No. 143), ILO, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312288:NO (last visited Feb. 21, 2013). Of the countries discussed in this report, only Norway has ratified this Convention.
 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, 2220 U.N.T.S. 3, http://treaties.un.org/doc/publication/UNTS/Volume%202220/v2220.pdf.
 Int’l Lab. Office, International Labour Migration, supra note 7, at 132–33.
 Status: International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, U.N. Treaty Collection, http://treaties.un.org/Pages/ShowMTDSGDetails.aspx?src=UNTS ONLINE&tabid=2&mtdsg_no=IV-13&chapter=4&lang=en#Participants (last visited Feb. 21, 2013). Of the countries discussed in this report, only Mexico has ratified this Convention.
 Int’l Lab. Conf., 87th Sess., June 1999, 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, ¶ 659, http://www.ilo.org/public/libdoc/ilo/P/09661/09661%281999-87_1B%29.pdf; see also ¶¶ 14–16.
 ILO Multilateral Framework on Labour Migration: Non-Binding Principles and Guidelines for a Rights-Based Approach to Labour Migration (2006), http://www.ilo.org/public/english/protection/ migrant/download/multilat_fwk_en.pdf.
 Int’l Lab. Office, International Labour Migration: A Rights-Based Approach 131 (2010), http://www.ilo.org/public/english/protection/migrant/download/rights_based_approach.pdf.
 ILO Multilateral Framework, supra note 15, princ. 9(b) (“In formulating national law and policies concerning the protection of migrant workers, governments should be guided by the underlying principles of [Conventions 97 and 143] and their accompanying Recommendations . . . , particularly those concerning equality of treatment between nationals and migrant workers . . . and minimum standards of protection.”).
 Id., princ. 13 (citing Int’l Lab. Org., Convention (No. 181) Concerning Private Employment Agencies, May 10, 2000, 2115 U.N.T.S. 249, available at http://treaties.un.org/doc/Publication/UNTS/Volume%202115/v2115.pdf, and ILO, Private Employment Agencies Recommendation, 1997 (No. 188), http://www.ilo.org/dyn/normlex/ en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312526:NO).
 ILO Multilateral Framework, supra note 15, princ. 9(b) (citing International Convention on the Protection of the Rights of All Migrant Workers, supra note 11).
Id. at 35–84.
 Id. at 11, princ. 4.
 Id., para. 4.1
 Id. at 52–55, paras. 40–45.
 Id. at 54, para. 43.
 Id. at 24, princ. 13.
 ILO, Convention (No. 181), supra note 18.
 ILO, ILO Multilateral Framework, supra note 15, at 24–25, paras. 13.1–13.8.
 See, e.g., id. at 52, para. 40 (citing as a best practice Australia’s policy in which employers sponsor temporary migrant workers to fill skilled positions that cannot otherwise be filled by Australia’s labor force).
 Id. at 11, princ. 4.
 Id. at 13, para. 5.5.
 Id. at 15, princ. 8.
 Id. at 16-17, princ. 9.
 Id. at 18, para. 9.7.
 Id. at 52, para. 40.
 Id. at 61, para. 61.
 Id. at 7, princ. 2.
 Id. at 7, para. 2.3.
 Id. at 27, princ. 14.
 Id. at 28, para. 14.10.
Last Updated: 12/30/2020