Final verdict of the International Migrants' Tribunal

By  APMM Tuesday, 04 December 2012

"From the evidence presented before this Honorable Tribunal, there is no other conclusion but that the Defendants have confederated, collaborated, cooperated and conspired with one another in wilfully, unlawfully and feloniously, committing and perpetuating the acts and omissions as specified in the charges against them in the Indictment.

WHEREFORE, premises considered, we find the Defendants have been complicit by either (a) pursuing or promoting measures violating the rights of migrants; or (b) remaining practically or absolutely silent to stop or stem such violations and thereby perpetuating them; (c) or systematically and habitually failing to act to alleviate the plight of migrants, and are therefore, GUILTY of all the charges."

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INTERNATIONAL MIGRANTS TRIBUNAL

Quezon City, Philippines

MIGRANTS ALL OVER THE WORLD at the suit of MIGRANTE INTERNATIONAL (MI), GABRIELA,  ASOSIASI TENAGA KERJA INDONESIA (ATKI-INDONESIA), CARAVAN, THE VOICE REFUGEE FORUM and MOVIMIENTO MIGRANTE MESOAMERICANO,

Complainants,

 

 

-versus-

 

GLOBAL FORUM ON MIGRATION AND DEVELOPMENT (GFMD) through and represented by the heads of governments and relevant agencies of the States forming its Steering Committee[1], and all other similar formations or other individuals, organizations and entities acting or cooperating under its authority and for or on its behalf, name and stead,

Defendants.

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VERDICT

Prefatory

In 2007, various States founded the Global Forum on Migration and Development (GFMD). The declared objective for its establishment was “to address the migration and development interconnections in practical and action-oriented ways.” GFMD has since served as a key instrument in formulating migration policies of States.

The policies recommended by the GFMD and largely adopted and implemented by States adversely affect the rights of migrants. While the GFMD provides for the token participation of civil society organizations, migrants are not involved and assert that they have no venue to challenge such policies. A number of international, regional and national organizations struggling for the rights and well-being of migrants initiated this International Migrants’ Tribunal (IMT) to confront GFMD and its policies.

This IMT put into trial the GFMD and its neoliberal globalization design on migration. It examined cases of alleged human rights violations by the sending States and highlighted the resistance of grassroots migrants against such machinations.

The Tribunal received an Indictment dated 5 November 2012 from several Complainants in behalf of migrants all over the world and at the suit of migrant and mass organizations Migrante International (MI), GABRIELA, Asosiasi Tenaga Kerja Indonesia (ATKI-Indonesia), CARAVAN, The Voice Refugee Forum and Movimiento Migrante Mesoamericano.

The Indictment listed charges against Defendant GFMD “through and represented by the heads of governments and relevant agencies of the States forming its Steering Committee, and all other similar formations or other individuals, organizations and entities acting or cooperating under its authority and for or on its behalf, name and stead.”

The Indictment outlined how Defendant GFMD allegedly violated the various rights of migrants, and caused sufferings to many, even deaths.

The Defendants were duly notified of the charges against them through the service of summons on 5 November 2012 both by hand and by registered mail with proof of service. Defendants were given ample opportunity to file their defense, answer or responsive pleadings, as the case may be.

No appearance by the Defendants and/or their counsel was made during the Tribunal proper held on 28 to 29 November 2012 nor did they submit any defense, answer or responsive pleading.

As enunciated by the Tribunal initiators and organizers International Migrants’ Alliance (IMA), International Women’s Alliance (IWA), International League of Peoples’ Struggle (ILPS) and the Asia Pacific Mission for Migrants (APMM), the prospective judges to the Tribunal were selected and invited on the basis of their expertise, competence, probity, objectivity and independence to hand down a credible judgment or verdict.

Opening and Closing Summation statements were made by the Prosecution. Summary testimonial evidence were provided by the Complainants’ witnesses as well as the accompanying documentary evidence submitted and taking into account the studied opinion of experts on the issues, each one supporting the allegations of the acts or omissions of the Defendants that violated migrants’ rights. The judges were given the full opportunity to clarify certain points and question the witnesses and experts.

It goes without saying that the importance and strength of the findings and Verdict of this Tribunal rests on the sufficiency and credibility of the evidence as well as the moral weight of the causes and arguments presented by the migrants through the Complainants.

The credibility and relevancy of the evidence and the application and recognition of the various international treaties and conventions on the rights of migrants including the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families serve as the guiding posts and bases for this Verdict.

 

  1. I. The Charges

  1. Violation of the Complainants’ human rights. At the pretext of protecting Complainants’ human rights, the Defendants prescribe migration policies in furtherance of their neoliberal agenda of commodification of labor and modern-day slavery.

  1. Criminal neglect of Complainants’ economic rights and violation of their political, economic, social and cultural rights by the Sending States.

  1. Violation of the Complainants’ political, economic, social and cultural rights by the Receiving States.

II.            Findings

Complainants, through the Panel of People’s Prosecutors from the International Association of People’s Lawyers (IAPL) and the National Union of Peoples’ Lawyers (NUPL) of the Philippines presented a total of nine (9) witnesses, three (3) of whom have been qualified as expert witnesses on the migrants’ rights situation and the Global Forum on Migration and Development, namely: Antonio Tujan Jr, Irene Fernandez and Jose Jacques y Medina.

 

All the nine (9) witnesses also submitted their respective sworn statements to the Tribunal.

 

ANTONIO TUJAN JR. of the Philippines, who is, among others, director of IBON International and chair of two major international aid coalitions, Better Aid and the Reality of Aid Network, testified and gave his expert opinion and analysis on the following:

 

1)    That the Defendants’ acts, programs and policies on migration, including the aggressive promotion of its ideology that remittances lead to development, does not in reality lead to development and is intended only to further the Defendants’ neoliberal agenda of modern-day slavery through the commodification of labor, to the injury of the Complainants; and

 

2)    That the Defendants’ acts, programs and policies such as the labor export policy, while paying lip service to the protection of migrants’ human rights, actually violates the political, economic, social and cultural rights of migrants.

 

Mr. Tujan provided elaborate explanation on how the labor-export policy violates the rights of the migrants. He expounded on his proposition and opinion as an expert witness that labor policy must not be export-based but rights-based.

 

He pointed out that the remittances of immigrants is greater than those of overseas contract workers and hence, the labor-export policy cannot even use the remittances of the latter as a justification.

 

Mr. Tujan also testified that the consequence of migration on the communities is the fragmentation of families and society. He also said that there is a lack of policies to attend to this situation.

 

IRENE FERNANDEZ of Malaysia, who is, among others, director and co-founder of the NGO Tenaganita and an awardee of the Right Livelihood Award for her courageous work to stop violence against women and abuses of migrant and poor workers in Malaysia, also gave her expert opinion and analysis, among others, on the following:

 

1)    The fact that multibillion dollar migrant industry recognizes the human being solely as an overseas contract worker; recruited, made to pay for his placement, and exported as a commodity by their own governments;

 

2)    The fact that many States organize and structure the movement of people through labor export policies and these policies maintain imperialist control and uneven distribution of power and wealth in the world;

 

3)    The reality that reflects very clear violations of rights with impunity supported by employer sanctions policies by various governments;

 

4)    The fact that most people who are victims of trafficking have deliberately left home in order to make a living elsewhere. However, they end up in a situation analogous to slavery; and

 

5)    That in today’s international imperialist form of migration control, there is not only the employer, but the agent and the State that act in unison of an unholy trinity to enslave the voiceless migrant worker none of whom recognize any rights.

 

Ms. Fernandez pointed out the myth that migration is a tool for development and that the issue of migration has been exploited as a security issue rather than based on a rights-based approach.

 

She also mentioned the lack of mechanisms of the States to the plight of women victims.

JOSE JACQUES y MEDINA of Mexico, who is, among others, the  organizer of the Labor Action and Immigration Action Center, part of the One Stop Immigration and Educational Center, and former migrant Federal Congressman in the Legislature of Mexico, testified as an expert witness on various harassments and various forms of human rights violations, worst of which are the killings and massacres, committed against migrants who use the US-Mexican border in going to the US.

 

He recounted the slaughter of 72 migrants in San Fernando, Tamaulipas and showed visual evidence of the massacre. He also testified about the approximately 70,000 migrants that have disappeared in Mexico for a period of six years from 2006 to 2012. Mr. Medina’s organization, the Mesoamerican Migrant Movement has hosted the caravan of mothers and relatives who searched for their missing migrants. He testified on the Mexican government’s inactions in the victims’ quest for justice and the lack of mechanism to defend rights, to prevent, to investigate those violations and attend to victims in the Central American region and Mexico.

 

LUZ MIRIAM JARAMILLO of Italy, who is, among others, a representative of the Comitato Immigrati in Italia and an active campaigner against laws and regulations that curtail rights of immigrant workers and refugees in Italy, testified on:

 

1)    The situation of undocumented migrants in Europe;

 

2)    The manner how Defendants have further encouraged and further aggravated the criminalization and violations of rights of undocumented migrants in Europe through the European Union (EU) Return Directive; and

 

3)    The fact that there is a virtual news blackout in the European media on the deportations in implementation of the directive.

REX OSA, a Nigerian refugee in Germany and a member of The VOICE Refugee Forum, testified on his personal experiences as a refugee and on the work of his organization in defending refugee rights. Mr. Osa also testified on the ill effects to refugees of Fortress Europe; the various human rights violations committed by or facilitated through the FRONTEX, a special border control agency, that reminds us of the Nazi practice of restricting freedom of movement and other forms of racist discrimination against the Jews in the 1930s.

 

He further testified that the Defendants, through their inaction and failure to identify and address the walls and fortresses created by its member-States through the imposition of anti-refugees policies, are also an anti-refugees organization that is complicit to the various violations of the refugees’ human rights.

 

He pointed out that he is not aware of any investigation of police brutality against migrants and that there is in fact no real integration in Germany and of the lack of an effective mechanism to defend their rights.

 

ENI LESTARI, an Indonesian who is herself a domestic worker in Hong Kong, testified on the issues of domestic workers. She was, among others, formerly the president of the Association of Indonesian Migrant Workers (ATKI-HK). She testified on the problems and issues being encountered by domestic/contract workers that the Defendants have refused to act on.

 

As related to the particular situation of the domestic contract workers, she also testified on how the Defendants’ inaction violates relevant rights-based international conventions. She testified how the problems and issues of the domestic contract workers have intensified due to the Defendants’ promotion of neo-liberal globalization-inspired labor flexibilization and the absence of the governments to attend to the victims of those violations.

 

VIVIANA MEDINA, a migrant worker from Mexico based in Montreal, Canada and who, among others, formed the Mexicanos Unidos para la regularizacion (MUR), testified on her own personal experience which represents the problems and ordeals that confront women migrant workers. Her experience showed how the absence of regular or legal status makes migrant workers more vulnerable to the worst of abuses.

 

She pointed out that the reasons for migration, particularly of women, are based on economics, reunification and violence that result in forced displacements and social disintegration.

 

GREGORIO CAGOD of the Philippines was a seafarer until his accident in 2001 while on board as an able seaman which required brain surgery. He is currently the Vice-President of the National Union of Seafarers Crewing Danish Ships (FILDAN) and a member of the Board of Trustees of the International Seafarers Action Center Philippines (ISAC).

 

Mr. Cagod testified on the issue of seafarers. He described the general situation of seafarers with particular emphasis on the situation of the Filipino seafarers. He also testified on the role of the Defendants on the further marginalization of poverty and exploitation of seafarers worldwide. He pointed out that the profits of the Defendants do not translate to meaningful services and to the rights and welfare of seafarers in particular and of the people in general.

 

GARRY MARTINEZ of the Philippines, who is, among others,  a former migrant worker in South Korea and presently Chairperson of Migrante, testified to prove the following:

 

1)    That far from being a tool of development, the Defendants contributed to the further regression of the economies of the underdeveloped countries;

 

2)    The Defendants promote the intensification of the labor export policy in under-developed countries;

 

3)    That as evidenced by the Philippine experience, labor export policy did not contribute to real economic development, and resulted in abuse and exploitation of Filipino Overseas Workers;

 

4)    That, the migrant workers experience various forms of abuses and left to fend off for themselves without sufficient support from the governments of both the sending and receiving countries.

 

 

As aforestated, the Defendants failed to make any appearance by themselves or by counsel in the Tribunal. Neither did they file or anything in reply to the Indictment.

 

Upon the instruction of this Tribunal, the Clerk of Court of this Tribunal read a lengthy statement unofficially culled from Defendant GFMD’s public pronouncements.

 

Thereafter, the Prosecutors argued that the non-appearance of the Defendants despite due and ample notice should be considered as a waiver of their right to be present and to present any evidence. They moved that the statement be treated as a mere scrap of paper and stricken off the record. The Prosecutors scored the Defendants for their “lack of courtesy, much less courage, to come before the Tribunal and argue their untenable position and general and sweeping denial.”

 

The Prosecutors emphatically asserted that the statement read contained “absolute lies” and was “washing its hands” with “unabashed distortions of reality” and “patently self-serving.” Most importantly, the Prosecution said, the statement is “an insult to all the victims, migrants and families that the Defendants have “bled, exploited and oppressed with evident premeditation and unmitigated callousness.”

 

The Prosecutors then moved that the case be submitted for deliberation and that a Verdict be handed down on the basis of Complainants’ evidence, which motion was granted by the Tribunal.

 

This Tribunal, however, takes judicial notice of the Defendant GFMD’s   objectives, as stated in its official website:

 

1)    “To provide a venue for policy-makers and high-level policy practitioners to informally discuss relevant policies and practical challenges and opportunities of the migration-development nexus, and engage with other stakeholders, including non-governmental organizations, experts and migrant organizations to foster practical and action-oriented outcomes at national, bilateral and international level;

 

2)    “To exchange good practices and experiences, which can be duplicated or adapted in other circumstances, in order to maximize the development benefits of migration and migration flows;

 

3)    “To identify information, policy and institutional gaps necessary to foster synergies and greater policy coherence at national, regional and international levels between the migration and development policy areas;

 

4)    “To establish partnerships and cooperation between countries, and between countries and other stakeholders, such as international organizations, diaspora, migrants, academia etc., on migration and development; and

 

5)    “To structure the international priorities and agenda on migration and development.” (Last viewed on 28 November 2012. http://www.gfmd.org/en/process/background)

 

III.           Judgment

After a careful and thorough evaluation of the evidence and weighty consideration of the arguments and opinions presented by the Complainants and their experts and witnesses, this Tribunal had come up with the following findings:

 

The Complainants have indeed taken a significant historical step in their continuing efforts to chronicle and document the long-running abuses and unbridled violations of the human rights of migrants all over the world.  They had come together as one before this political Tribunal in a bold move to utilize another alternative forum to make accountable the forces and institutions that perpetuate their exploitation, misery and plight.

 

Complainants have established with clear, convincing and credible evidence that the neoliberal globalization design on migration that meets the needs of imperialist countries and maintains the supply of cheap and skilled contractual workers from developing and underdeveloped countries is crystallized in Defendant GFMD.

 

Several years after its inception, Defendant GFMD continues to disseminate the notion that migration leads to development. It has been pushing harder for the alignment of migration policies to complement neo-liberal policies. The intent is to regulate the flow of cheap labor, keeping in mind the economic benefits from migrant labor. Whatever economic gains derived from migration benefit a small minority (e.g. big business, bureaucrats) especially in countries of origin.

 

Defendant GFMD's ostensible thrust is to promote “migration for development.” In reality, Defendants are complicit in the crimes of commodification, criminalization of the undocumented and death on the borders, modern-day slavery, and criminal neglect and abuse of the rights and welfare of migrants.

 

The Defendant GFMD thereby helps prop up and perpetuate States’ socio-economic systems that oppress and exploit not only migrants and migrant families but the broad majority of toiling people.

 

Complainants correctly charged the Defendants Global Forum On Migration And Development (GFMD), through and represented by the heads of governments and relevant agencies of the States forming its Steering Committee – including: Argentina, Australia, Bangladesh, Belgium, Brazil, Canada, Ecuador, Egypt, France, Germany, Ghana, Greece, India, Indonesia, Israel, Japan, Kenya, Mauritius, Mexico, Morocco, Netherlands, Norway, Philippines, Portugal, Qatar, Republic of Korea, Senegal, South Africa, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom, and the United States of America, and all other similar formations or other individuals, organizations and entities acting or cooperating under its authority and for or on its behalf, name and stead, of confederating, collaborating, cooperating and conspiring with one another from 2007 to the present in wilfully, unlawfully and feloniously, by acts or omission and through its themes, pronouncements and resolutions, with the following, and we hereby therefore find:

 

On Charge 1:

 

On the charge that the Defendants at the pretext of protecting Complainants’ human rights, prescribe migration policies in furtherance of their neoliberal agenda of commodification of labor and modern-day slavery, the Tribunal hereby finds the Defendants GUILTY as charged.

 

The testimonial and documentary evidence presented by the Complainants clearly shows that Defendants’ recommended policy of promoting migration does not contribute to the development of the economic base of sending States while leading to dislocation of migrants’ families. It does not promote the creation of jobs and employment in the home countries thereby forcing migrants to migrate for lack of employment and adequate opportunities in their home countries.

 

The profits and remittances of overseas contract workers do not even redound to their benefit, much less to the benefit of the rights and welfare of the people.

 

Moreover, acts and omissions showing that migration render and treat Complainants as cheap, docile and flexible workforce for the benefit of industries and businesses is shown by the testimonial and documentary evidence presented.

 

Contrary to the GFMD’s claims and avowed policies of protecting migrants’ rights and wellbeing, GFMD failed to prescribe policies and measures to address the problem of criminalization of irregular migrants thus giving rise to unjust, punitive racist measures such as the European Union Return Directive.

 

Further, the act of the Defendants of taking full advantage of Complainants’ vulnerability to squeeze maximum profits and benefits at the expense of Complainants’ rights was demonstrated by the testimonial and documentary evidence presented.

 

 

On Charge 2:

 

On the charge that the Defendants were criminally neglectful of Complainants’ political, economic, social and cultural rights through the Sending States, the Tribunal hereby finds the Defendants GUILTY as charged.

 

  1. Defendants failed, obstructed or impeded the creation of national industries that will generate adequate and decent job opportunities at home;
  2. Defendants promoted labor export policy that commodifies migrants and resulting in various rights violations.

 

In fine, the promotion of a labor export-policy as a means to development is seriously flawed and the Defendants’ act of encouraging states to adopt labor-export policies from an economic development point of view and in obvious disregard of Complainants’ realities and the factors and issues surroundings migration is clearly a violation of the Complainants’ basic economic rights

 

  1. Defendants imposed excessive taxes, charges and other various forms of exactions from the Complainants; and

 

  1. Defendants hugely benefited from Complainants’ remittances at Complainants’ expense and prejudice.

On Charge 3:

 

On the charge that the Defendants violated Complainants’ political, economic, social and cultural rights through the Receiving States, the Tribunal hereby finds the Defendants GUILTY as charged.

  1. Defendants purposely depressed wages, limited benefits, promoted substandard working conditions, and maintained employment insecurity of Complainants;

 

  1. Defendants perpetrated or supported a policy called Kafala system in the Gulf countries which is a system for modern-day slavery as it puts migrant workers under the absolute control of the employer whose permission is also required if the migrant worker wants to leave or transfer employment, resulting in various kinds of abuses against Complainants;

 

  1. Defendants upheld pernicious immigration laws that rendered Complainants vulnerable to criminalization oftentimes leading to their violent arrest, detention and deportation;

 

  1. Defendants perpetuated oppression of women by making Complainants vulnerable to gender-based violence;

 

  1. Defendants have no comprehensive and effective mechanisms in place to protect Complainants from falling victims to human traffickers and organized crime syndicates that even leads to loss of lives of Complainants;

 

  1. Defendants neglected or did not act in the face of numerous cases and various forms of violations of migrants’ rights which include mass killings and massacres as in the case of migrants using the US-Mexico border going to the US. From the clarificatory questions posed by this Tribunal to the witnesses, it was gathered that the governments concerned criminally failed or neglected to act in the face of these alarming violations of migrants’ rights;

 

  1. Defendants tolerated or incited discrimination and xenophobia against Complainants to suppress solidarity of Complainants with other workers and peoples.

 

Furthermore, the Complainants were able to make their case on the following specific areas of concern or issues illustrative of the foregoing charges:

 

  1. On the European Return Directive. The Defendants have further promoted the criminalization and violations of the rights of undocumented migrants in Europe through the EU Return Directive which sanctions the criminalization, detention and deportation of what it considers illegal immigrants or undocumented migrants.

 

  1. On the issue of Refugees. Defendants’ view and policy that the problem vis-a-vis refugees should be seen simply within the framework of stepping up border controls encouraged human rights violations.

 

  1. On issues of Domestic Workers. Defendants are merely concerned with making more systematic temporary labor migration to serve their agenda of commodification and reduce migrant workers to modern-day slaves.

  1. On the issue of Women Migrant Workers. Defendants have exposed women migrant workers to violence, abuse and exploitation and imposed additional legal barriers for their migration.

 

  1. On the issue of Seafarers. Defendants have perpetuated the condition where the vast majority of seafarers of the world are suffered to work the perils of the sea with lower and lower real wages, inhuman working conditions, unsafe ships, and longer hours.

  1. On the issue of Labor Export Policy. Defendants have endorsed labor export over the rights and protection of migrant workers and their families through a policy that has resulted in tremendous hardships to them.

 

All these acts and omissions of Defendants are willful, unlawful, felonious and violate or are contrary to the provisions of and principles embodied in various international instruments. Among which include:

  1. 1948 Universal Declaration of Human Rights;
  2. 1966 International Covenant on Economic, Social and Cultural Rights;
  3. 1966 International Covenant on Civil and Political Rights;
  4. 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;
  5. The 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol;
  6. 1979 Convention on the Elimination of All Forms of Discrimination against Women;
  7. 1965 International Convention on the Elimination of All Forms of Racial Discrimination;
  8. 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;
  9. 1989 Convention on the Rights of the Child;
  10. 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols;
  11. ILO Migration for Employment Convention (Revised); and
  12. ILO Convention on Decent Work for Domestic Workers (C189).

Some of these provisions include[2]:

 

Articles 4, 22, 23 and 24 of The Universal Declaration of Human Rights, which provide as follows:

Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited;

Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Articles 6, 7, and 11 of the 1966 International Covenant on Economic, Social and Cultural Rights, which provide as follows:

Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. xxx   xxx   xxx

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Articles 2, 11, 16, 25, 26 and 37 of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families:

 

Article 2. States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

 

Article 11

 

1. No migrant worker or member of his or her family shall be held in slavery or servitude, and;

2. No migrant worker or member of his or her family shall be required to perform forced or compulsory labour.

 

Article 16. 2. Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.

 

Article 25. Migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration and: (a) Other conditions of work, that is to say, overtime, hours of work, weekly rest, holidays with pay, safety, health, termination of the employment relationship and any other conditions of work which, according to national law and practice, are covered by these terms.

 

Article 26. States Parties recognize the right of migrant workers and members of their families: (a) To take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests, subject only to the rules of the organization concerned; (b) To join freely any trade union and any such association as aforesaid, subject only to the rules of the organization concerned; (c) To seek the aid and assistance of any trade union and of any such association as aforesaid.

 

Article 37. Before their departure, or at the latest at the time of their admission to the State of employment, migrant workers and members of their families shall have the right to be fully informed by the State of origin or the State of employment, as appropriate, of all conditions applicable to their admission and particularly those concerning their stay and the remunerated activities in which they may engage as well as of the requirements they must satisfy in the State of employment and the authority to which they must address themselves for any modification of those conditions.

 

Article 6 of the ILO Migration for Employment Convention (Revised):

 

  1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters: (a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities-- (i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons; (ii) membership of trade unions and enjoyment of the benefits of collective bargaining; (iii) accommodation.

 

Article 6 and 9, ILO Convention on Decent Work for Domestic Workers (C189):

 

Article 6. Each Member shall take measures to ensure that domestic workers, like workers generally, enjoy fair terms of employment as well as decent working conditions and, if they reside in the household, decent living conditions that respect their privacy.

 

Article 9.Each Member shall take measures to ensure that domestic workers: (a) are free to reach agreement with their employer or potential employer on whether to reside in the household; (b) who reside in the household are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave; and (c) are entitled to keep in their possession their travel and identity documents.

Articles 32 and 33 and UN Convention on the Status of Refugees (1951) and its 1967 Protocol.

 

Article 32. It states that the states shall not expel a refugee lawfully in their territory, save on grounds of national security or public order, and any such expulsion of a refugee shall be in pursuance of a decision reached in accordance with due process. The refugee shall be allowed to submit evidence to clear himself, and the contracting States shall allow a refugee a reasonable period within which to seek legal readmission into another country.

 

Article 33. No Contracting State Shall expel or return (‘refouler’) a refugee in any manner, whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.

 

Additionally, the acts and omissions of the Philippine government, acting or cooperating under Defendant GFMD’s authority and for or on its behalf, name and stead, has violated and contravened the 1998 Comprehensive Agreement of Respect for Human Rights and International Humanitarian Law (CARHRIHL) between the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP), which has recognized the application, among others, of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

 

IV.          Recommendations

Defendants must provide redress and justice for the Complainants that continue to struggle for the most basic of their human rights and against institutional exploitation and oppression.

In view of the GUILTY VERDICT, this Tribunal recommends the following:

  1. The abolition of the Global Forum on Migration and Development (GFMD) and the abrogation of its policies.

  1. The adoption by sending States of genuine national economic development policies that will curb forced migration. States are enjoined to adopt policies that will develop local economy, promote employment opportunities for its people and discourage migration;

 

  1. The adoption and implementation by the States of national policies that are in line with international instruments such as the UN Convention on the Protection of the Rights of Migrants and Their Families. Existing policies that do not accord with such international instruments should be rescinded;

  1. Defendants should investigate, prosecute, institute effective mechanisms, compensate and indemnify the migrant victims and their families for the damage they have sustained as a result of the violations, crimes, and offenses herein charged;

 

  1. Defendants should give restitution to the migrants of the material, personal, and moral damages that resulted from the implementation of the immoral, unjust, and inhumane policies of Defendant GFMD like EU Return Directive;

 

  1. Scrap globalization policy of receiving and sending States as it was proven detrimental to rights of the peoples of the world to life, dignity, liberty, livelihood, and self determination, among others;

 

  1. Scrap the labor export policy and institute a rights-based policy approach on migration.

 

 

  1. V. Conclusion

 

This Verdict, adopted unanimously, is without prejudice to the issuance of an extended opinion by the Tribunal in due time.

From the evidence presented before this Honorable Tribunal, there is no other conclusion but that the Defendants have confederated, collaborated, cooperated and conspired with one another in wilfully, unlawfully and feloniously, committing and perpetuating the acts and omissions as specified in the charges against them in the Indictment.

WHEREFORE, premises considered, we find the Defendants have been complicit by either (a) pursuing or promoting measures violating the rights of migrants; or (b) remaining practically or absolutely silent to stop or stem such violations and thereby perpetuating them; (c) or systematically and habitually failing to act to alleviate the plight of migrants, and are therefore, GUILTY of all the charges.

 

The Clerk of this Tribunal is hereby instructed to forthwith serve this Verdict on all the Defendants and to publish and circulate it widely to pertinent national and international bodies and the general public.

 

SO ORDERED.

 

Quezon City, Philippines, 29 November 2012.

 

 

 

Hon. Osamu Niikura

(Japan)

 

 

 

Hon. Soritua Nababan                  Hon. Ana Lorena Delgadillo Pérez

(Indonesia)                                                     (Mexico)

 

 

 

Hon. Monique Wilson                                Hon. Roland Tolentino

(Philippines)                                               (Philippines)

 

 


[1] Argentina, Australia, Bangladesh, Belgium, Brazil, Canada, Ecuador, Egypt, France, Germany, Ghana, Greece, India, Indonesia, Israel, Japan, Kenya, Mauritius, Mexico, Morocco, Netherlands, Norway, Philippines, Portugal, Qatar, Republic of Korea, Senegal, South Africa, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom, and the United States of America.

[2] The other specific provisions shall be cited in a separate paper that will form part and parcel of this Indictment.

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