Nava Raj Sapkota 

The proposed labour pact with Japan is a chance to enhance migration governance

Nepal and Japan are going to agree and finalise the formalities required for the migration of Nepali workers to Japan by March-end. The labour migration will most likely happen under the government-to-government modality in which the governments of the two countries oversee the overall process. The Nepal government’s strong proposal not to have intermediaries to prevent any malpractices and fraudulent activities while recruiting Nepali workers for Japan is a mature proposal. This is an openhearted step from the human rights perspective, but the problem is its concrete realisation by the migrant workers in practice.

The government-to-government modality can be the best way to protect the rights of migrants as the government is the principal human rights protector. The Migrant Workers Convention defines a migrant worker as a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a citizen. Being in a foreign country, vulnerability from the perspective of human rights is a possible challenge. Nepal is not a state party to the Migrant Workers Convention, but this convention sets the international standards for the protection of migrant workers.

Accordingly, the convention expressly provides protection to migrant workers and their family members not only when the migrants are actually working, but ‘during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence’. Therefore, this occasion is an opportunity for Nepal to think of being a state party to the convention too. Migrants are entitled to the universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times.

They are also entitled to the specific international protection defined by international law. The Global Compact for Migration is a cooperative framework addressing migration in all its dimensions. It can be a guideline for Nepal too as a member state of the UN. The Global Compact for Migration expresses the collective commitment to improve cooperation in international migration. Migration has been part of the human experience throughout history. The Global Compact for Migration recognises that it is a source of prosperity, innovation and sustainable development in our globalised world, and these positive impacts can be optimised by improving migration governance.

Nepali migrant workers in the destination countries are not realising migrant rights as they are entitled to. They include the right to work and receive wages that contribute to an adequate standard of living, the human right to freedom from discrimination based on race, nationality, ethnic origin, sex, religion or any other status, including in hiring, conditions of work, and promotion, and in access to housing, health care and basic services, the right to equality before the law and equal protection of the law. Problems have been seen particularly in labour legislation, legal status of migrants, the right to equal pay for equal work, the right to freedom from forced labour, the right to return home if the migrant wishes, and the right to a standard of living adequate for the health and well-being of the migrant worker and his or her family.

The right to safe working conditions and a clean and safe working environment, the right to reasonable limitation of working hours, rest and leisure, the right to protection for the child from economic exploitation and from any work that may be hazardous to his or her well-being and development, the right of children of migrant workers to education, and the right of migrants and their families to reunification become sharply challenging.

The government should create an environment through this government-to-government agreement so that no Nepali migrant worker is deprived of these rights. Nepali migrant workers have also been deprived of access to justice, especially fair trial rights. Article 18 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families says that migrant workers and members of their families who are charged with a criminal offence shall have the right to be presumed innocent until proven guilty, to be informed promptly and in detail in a language they understand of the nature and cause of the charge against them, to be tried in their presence and to defend themselves in person or through legal assistance of their own choosing; to be informed, if they do not have legal assistance, and to have legal assistance assigned to them, in any case where the interests of justice so require and without payment if they do not have sufficient means to pay, to have adequate time and facilities for the preparation of their  defence and to communicate with counsel of their own choosing.

Problems have also been seen in the implementation of individual complaints about human rights violation in the destination countries. This is the right time for a wider discussion to create an international procedure for the adjudication of individual complaints to protect migrants’ rights and freedoms. The government should also study the National Human Rights Commission’s recommendations, in particular, effective monitoring and regulation of manpower agencies and prearrangement of health check-up institutions, orientation providing company and agents.

The government should also work to prevent fraud, deception, exploitation, forced labour and human trafficking and transportation in the name of foreign employment. It should make special arrangements for protection from vulnerabilities like discrimination, violence, exploitation, forced labour, human trafficking and transportation. This is also the appropriate time to make an effort to implement in practice the Employer Pays Principle or the Dhaka Principle which Nepal has pledged to implement.

Published on: 15 March 2019 । The Kathmandu Post