Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families
Concluding observations on the initial report of Mauritania *
1.The Committee considered the initial report of Mauritania (CMW/C/MRT/1) at its 308th and 309th meetings (CMW/C/SR.308 and SR.309), held on 11 and 12 April 2016, and adopted the following concluding observations at its 321st meeting, held on 20 April 2016.
A.Introduction
2.The Committee welcomes the initial report of the State party, which was prepared in response to the list of issues prior to reporting (CMW/C/MRT/QPR/1), as well as the additional information provided orally by the high-level delegation, which was headed by the Commissioner for Human Rights and Humanitarian Action, Mr. Cheikh Tourad Abdel Malick, and included representatives of a number of different ministries, the Permanent Representative of Mauritania to the United Nations Office at Geneva and other members of the Permanent Mission of Mauritania. The Committee appreciates the frank, open and constructive dialogue that took place between the delegation and the members of the Committee.
3.The Committee notes that the countries where most Mauritanian migrant workers are employed are not yet party to the Convention, which hinders those workers’ enjoyment of their rights under the Convention.
B.Positive aspects
4.The Committee takes note with satisfaction of the ratification by the State party of the following international instruments:
(a)The International Convention for the Protection of All Persons from Enforced Disappearance, in 2012;
(b)The Convention on the Rights of Persons with Disabilities and its Optional Protocol, in 2012;
(c)The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in 2012;
(d)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in 2007.
5.The Committee takes note with satisfaction of the following legislative measures:
(a)The adoption of Act No. 031-2015 of 15 September 2015, which defines the criminal offence of slavery and sets out the penalties for acts of enslavement;
(b)The adoption of Act No. 2010-021 of 10 February 2010, which defines the criminal offence of migrant smuggling;
(c)The issuance of Decree No. 2009-224 of 29 October 2009, which establishes the conditions of employment for foreign labour and institutes work permits for migrant workers.
6.The Committee notes with satisfaction the adoption of a national migration management strategy in 2010.
7.The Committee welcomes the fact that the State party works in cooperation with the Office of the United Nations High Commissioner for Human Rights on an ongoing basis and draws upon its technical support for the preparation of its reports.
8.The Committee finds it commendable that the State party has made an effort to mobilize civil society and has drawn upon its sound organizational capabilities and institutional maturity to further associative action.
C.Factors and difficulties impeding implementation of the Convention
9.The Committee recognizes the difficulties faced by the State party, in particular those associated with the porous nature of its borders and the effects of climate change, which may impede the full realization of all the rights of migrant workers and members of their families under the Convention.
D.Principal subjects of concern and recommendations
1.General measures of implementation (arts. 73 and 84)
Legislation and its application
10.The Committee is concerned that, although article 80 of the Constitution states that “all the provisions on human rights contained in conventions ratified by Mauritania can be invoked before the courts, and judges are required to apply them”, these provisions are rarely invoked in practice.
11. The Committee invites the State party to provide information in its second periodic report on the application of the Convention by the nation ’ s courts or on the obstacles to its application, as appropriate.
Articles 76 and 77
12.The Committee notes that the State party has not made the declarations provided for in articles 76 and 77 of the Convention whereby it would recognize the competence of the Committee to receive communications from States parties and individuals concerning violations of the rights established by the Convention.
13. The Committee recommends that the State party consider making the declarations provided for in articles 76 and 77 of the Convention.
Ratification of relevant instruments
14.The Committee takes note with satisfaction of the ratification by the State party of all the human rights treaties and of a number of the conventions of the International Labour Organization (ILO). It also observes, however, that the State party has not yet acceded to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women or the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. While noting the difficulties mentioned by the State party, such as a lack of the resources needed to meet the obligations that would arise from ratification of the ILO Migration for Employment Convention (Revised), 1949 (No. 97) and of the ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the Committee finds it regrettable that the State is not yet party to those two conventions or to the ILO Private Employment Agencies Convention, 1997 (No. 181) or the ILO Domestic Workers Convention, 2011 (No. 189).
15. The Committee reminds the State party that a country ’ s level of development and lack of resources cannot justify inaction on the part of the State party as regards the promotion and protection of human rights. The Committee recommends that the State party consider ratifying the optional protocols to international human rights treaties mentioned above and ILO conventions Nos. 97, 143, 181 and 189.
Coordination
16.The Committee takes note of the existence of an interministerial committee tasked with the preparation of reports and follow-up action on the recommendations of the Committee and of other human rights treaty bodies. It also takes note of the 17 ministerial offices with responsibilities for migration issues. It observes, however, that the State party does not have a ministerial department or any other body that is responsible for coordinating all aspects of migration.
17. The Committee recommends that the State party:
(a) Redouble its efforts to improve coordination among ministries and agencies at all levels of government in order to promote the effective implementation of the rights protected under the Convention;
(b) Strengthen the interministerial committee responsible for preparing reports and endow it with sufficient resources to implement the recommendations of the Committee and other human rights treaty bodies.
Data collection
18.The Committee takes note of the sex-disaggregated statistics on the number of migrants in Mauritania compiled for the International Organization for Migration in 2008. The Committee finds it regrettable, however, that there is a lack of updated statistics, disaggregated by sex, age and origin, on migration flows to and from the State party and on members of the families of migrant workers. The Committee recalls that such information is essential in order to arrive at an understanding of the migration situation in the State party and to assess the extent to which the Convention is being applied.
19. The Committee recommends that the State party:
(a) Request the necessary technical assistance to ensure that the database on migration is centralized and that the statistics are disaggregated by sex, age and origin, in accordance with the Sustainable Development Goals (target 17.18), with a view to:
(i) Gaining a better understanding of the migration context and the situation of migrant workers in the State party, including those in an irregular situation;
(ii) Permitting the effective implementation of migration policy;
(iii) Monitoring the implementation of the Convention;
(b) Providing information on the number of Mauritanian migrant workers and members of their families abroad, including those in an irregular situation, and, insofar as possible, on their situation as it relates to the provisions of the Convention. If no precise information is available, the Committee would appreciate receiving reliable data drawn from credible studies or estimates.
Independent follow-up
20.The Committee welcomes the fact that the State party’s National Human Rights Commission was awarded A status in May 2011 by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights. Nevertheless, the Committee is concerned by the absence of a transparent, participatory process for the selection of the Commission’s members.
21. The Committee recommends that the State party ensure that National Human Rights Commission Act No. 2010-031 guarantees the effective independence of the Commission in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) and ensure its proper performance of its functions and its effective independence.
Training regarding the Convention and its dissemination
22.The Committee is concerned at the lack of training programmes and materials dealing specifically with the Convention and the rights enshrined therein and at the failure to disseminate such information among all stakeholders, including national, regional and local authorities, the courts, civil society organizations and migrant workers and members of their families.
23. The Committee recommends that the State party develop educational and training programmes regarding the Convention and ensure that such instruction is provided to all public officials, including judges and members of security forces, and all others working in migration-related areas. It also recommends that the State party ensure that migrant workers have access to information about their rights under the Convention and that it work with civil society organizations and the media to disseminate information on the Convention and promote its implementation.
Corruption
24.The Committee is concerned by reports that migrant workers and members of their families have fallen victim to corrupt practices on the part of officials in various institutions having responsibilities in connection with the implementation of the Convention.
25. The Committee encourages the State party to continue to address any instances of corruption. The Committee also recommends that the State party thoroughly investigate any cases that appear to involve officials working in areas related to the implementation of the Convention and impose the appropriate sanctions, as necessary . The Committee further recommends that the State party conduct information campaigns with a view to encouraging migrant workers and members of their families who claim to be victims of corruption to file complaints and that the State party seek to raise awareness among migrant workers and members of their families about the services that are available to them free of charge.
2.General principles (arts. 7 and 83)
Non-discrimination
26.The Committee notes that the Labour Code established by Act No. 2004-017 is applicable to all migrant workers and that the conditions for employment of foreign workers (art. 388) include an obligation to grant a work permit in accordance with the requirements set out in Decree No. 2009-224. However, the Committee is concerned that the requirements for obtaining a work permit are so strict that migrant workers find themselves obliged to work without a contract or to agree to work without a permit, which makes them more vulnerable and puts them at risk of exploitation and human trafficking.
27. The Committee recommends that the State party take all necessary measures to ensure that the migrant workers and members of their families within its territory or subject to its jurisdiction, whether they are documented or not, enjoy, without discrimination, the rights enshrined by the Convention in accordance with article 7 thereof. The Committee also recommends that the State party provide information in its second periodic report on the measures taken in this respect, together with specific, relevant examples.
Right to an effective remedy
28.While taking note of the information received from the State party on the adoption in 2015 of a law on access to legal aid, which makes it possible for members of the public to obtain free legal assistance, the Committee notes with concern that this law is not yet being applied because implementing regulations are lacking and because no budget allocation has as yet been made for its implementation. The Committee is also concerned by the fact that, notwithstanding the provision in the Code of Criminal Procedure for the assignment of a lawyer in criminal cases regardless of the nationality of the accused, this provision is rarely applied and lawyers are available only in Nouakchott.
29. The Committee urges the State party to:
(a) Ensure that, in law and in practice, migrant workers and members of their families, including those in an irregular situation, have the same opportunity as nationals of the State party to file complaints and obtain redress through the courts in cases where their rights under the Convention have been violated;
(b) Inform migrant workers and members of their families about the judicial and other remedies for violations of the Convention that are available to them and address their complaints as effectively as possible;
(c) Provide information in its next periodic report on cases of migrant workers who have received legal assistance.
3.Human rights of all migrant workers and members of their families (arts. 8-35)
Forced labour and other forms of exploitation
30.The Committee takes note of the State party’s efforts to prevent forced labour. However, it remains concerned by the fact that this practice persists, in particular in the case of migrant workers, who are often victims of forced labour, abuse and other forms of exploitation, such as inadequate pay or excessive working hours. The Committee notes with concern the situation of migrant women in an irregular situation employed as domestic workers, who are vulnerable not only to exploitation but also to prostitution. The Committee is concerned about the lack of information on action taken against employers who make use of forced labour or who engage in other forms of exploitation.
31. The Committee urges the State party to:
(a) Ensure that the labour inspectorate monitors the working conditions of migrant workers in both regular and irregular situations more consistently by extending the application of the Convention to the informal sector, including domestic work, and systematically reporting cases of abuse to the authorities in accordance with the Sustainable Development Goals (target 8.8);
(b) Ensure that all migrant workers, particularly migrant women employed as domestic workers, have access to effective mechanisms for filing complaints against persons who exploit them and violate their rights and that such workers are duly informed of the available procedures for ensuring that perpetrators are punished and that victims obtain redress;
(c) Step up its efforts to apply its legal provisions and impose fines and other more severe penalties on employers who break the law.
32.The Committee is concerned about the particular vulnerability of talibé migrant children who are forced into begging, separated from their families or unaccompanied and about the absence from the action plan of measures that take their situation fully into account. The Committee takes note with concern of the situation of girls who are used for “temporary marriages” and sexually exploited and is concerned by the fact that there are no measures in place that offer them special protection or assistance.
33. The Committee recommends that the State party take steps to identify child beggars and children in a situation of servitude, to protect them in accordance with the Sustainable Development Goals (targets 8.7 and 16.2) and to put in place a strategy for rehabilitating and reintegrating such children by, inter alia, providing them with psychological assistance and ensuring that the parties concerned have access to justice.
Right to a fair trial, detention and equality before the courts
34.The Committee is concerned by the absence of alternatives to detention for migrant workers. It is also concerned by the fact that migrant workers who have been detained for reasons relating to their irregular administrative status are rarely segregated from ordinary offenders. The Committee is further concerned that, while there is a women’s prison in Nouakchott, women held in police or gendarmerie stations are supervised by male guards.
35. The Committee recommends that the State party:
(a) Indicate in its next periodic report the number of migrants, disaggregated by age, sex and nationality and/or origin, who are currently in detention for infringing migration laws, specifying the location, average duration and conditions of their detention and providing information on the decisions rendered in their regard and on the steps taken to ensure that an alternative to detention is provided;
(b) To refrain from detaining migrant workers for infringing migration laws other than in exceptional cases and as a last resort and to ensure that, in all cases, they are segregated from ordinary offenders and that women are segregated from men, and minors from adults.
Regularization procedures
36.The Committee takes note of Decree No. 2012-031 (2012) on the procedure for regularizing the status of foreign nationals wishing to live in Mauritania. It is nonetheless concerned at the high cost of the procedure (30,000 ouguiyas or US$ 93), which corresponds to one month’s salary at the minimum wage level in the State party and thus constitutes an obstacle to regularization for migrant workers and members of their families.
37. The Committee recommends that the State party intensify its efforts to design and implement simple regularization procedures for migrants and ensure that these procedures are in keeping with the principle of non-discrimination and are easily accessible to migrant workers in an irregular situation and to members of their families.
Expulsion
38.The Committee take note with concern of reports of the expulsion of migrants who are in an irregular situation and the lack of information on the effective access of such migrants to remedies that they can use to challenge expulsion decisions.
39. The Committee invites the State party to provide more specific information on the number of migrants subject to an expulsion procedure. It requests the State party to provide information on the legal provisions and measures under which migrants subject to an expulsion procedure, except where a final decision has been rendered by the judicial authorities, have the right:
(a) To submit the reasons why they should not be expelled;
(b) To have their case reviewed by the competent authority;
(c) To request the suspension of the expulsion order pending that review, in accordance with article 22 (4) of the Convention.
Consular assistance
40.The Committee is concerned by reports that the State party does not have sufficient resources to provide effective consular assistance and that, notwithstanding the legal provisions which give diplomatic representatives the right to be notified, to visit detainees and to intervene on their behalf, such interventions are rare.
41. The Committee recommends that the State party:
(a) Facilitate access to consular or diploma tic assistance for Mauritanian migrant workers living abroad, especially in cases of detention or expulsion;
(b) Ensure that its consular services more effectively fulfil their mission to protect and promote the rights of M auritanian migrant workers and members of their families and, in particular, that they provide the necessary assistance to those who are deprived of their liberty or under an expulsion order;
(c) Take the necessary steps to ensure t hat the consular or diplomatic authorities of countries of origin, or of a country representing the interests of those countries, are systematically notified of the detention in the State party of one of their nationals and that the requisite information is duly entered in the police custody register (persons contacted, date, time, etc.);
(d) Provide information concerning its c onsular services in its second periodic report.
Remuneration and working conditions
42.The Committee notes that migrant workers are subject to the collective bargaining agreement of 1974 that gives them the same rights as Mauritanian workers. However, it is concerned at reports of violations and discriminatory practices with regard to wages. The Committee is further concerned that labour inspections focus more on the status of migrant workers than on working conditions.
43. The Committee recommends that the State party, in line with the Convention, provide protection, in law and in practice, for the labour rights of all migrant workers living in the country. It also recommends that the State party ensure that labour inspectors are independent of other entities, particularly the immigration service, so that migrant workers may report cases of ill-treatment and exploitation to the authorities responsible for labour matters without fear of attracting the attention of the immigration service.
Emergency medical care
44.The Committee notes the paucity of information received regarding the access, in law and practice, of migrant workers and members of their families, irrespective of their migration status, to medical care, including the emergency medical care needed to save their lives or avoid irreparable harm to their health, on the basis of equality of treatment with nationals of the State party.
45. The Committee recommends that the State party provide information in its next periodic report on the ability of all migrant workers and members of their families, irrespective of their migration status, to enjoy, in law and practice, access to medical care, including the emergency medical care needed to save their lives or avoid irreparable harm to their health, on the basis of equality of treatment with nationals of the State party, in keeping with article 28 of the Convention.
Registration of birth and nationality
46.Despite the State party’s statement that its biometric civil-status records include registers reserved for foreigners in which the birth of their children can be recorded, the Committee takes note with concern of reports that many children born in Mauritania have not been issued a birth certificate.
47. The Committee recommends that the State party scale up its efforts to ensure that all children of migrant workers born in Mauritania are registered at birth and provided with personal identity documents, in keeping with article 29 of the Convention and with the Sustainable Development Goals (target 16.9). The Committee further recommends that the State party raise awareness among migrant workers and members of their families, especially those in an irregular situation, of the importance of registering their children ’ s births.
4.Other rights of migrant workers and members of their families who are documented or in a regular situation (arts. 36-56)
Pre-departure programmes, the right to be informed
48.The Committee notes with concern by the fact that there are no ongoing pre-departure programmes for Mauritanian nationals.
49. The Committee recommends that the State party take the necessary steps to disseminate information on the rights of migrant workers under the Convention, on the conditions of their admission to the country and employment, and on their rights and obligations in accordance with the law and customs of the country of employment. The Committee also recommends that the State party undertake consultations with relevant non-governmental organizations, the staff of accredited, reliable recruitment agencies and the media.
Right to vote and to be elected in the State of origin
50.The Committee commends the State party on the promulgation of Act No. 2009-22 (2009) on the special provisions governing the right to vote of Mauritanians living abroad. However, it is concerned by the fact that insufficient information has been received regarding the actual enjoyment of this right, in particular with respect to the voter turnout rate for Mauritanians living abroad.
51. The Committee invites the State party to provide information in its next periodic report on the voter turnout rate for Mauritanians living abroad in all consultations of a national scope (referendums and legislative, senatorial and presidential elections) and on the manner in which the right to vote is applied in practice.
Transfers of earnings and savings
52.The Committee welcomes the fact that bank transfers are covered by national law and has no specific objection in this regard. It is, however, concerned by the fact that bank transfers must be made through private agencies that set very high transaction fees or through informal agencies that put the transfers at risk.
53. The Committee recommends that the State party take steps to facilitate the transfer of earnings and savings by migrant workers living in Mauritania through the introduction of discounted transfer and receipt fees, in line with the Sustainable Development Goals (target 10.c).
54.The Committee takes note with satisfaction of the conclusion of agreements between the State party and France and Mali which permit the transfer of family allowances for children of migrant workers residing in those countries. Nonetheless, the Committee is concerned by the lack of information on the correspondent banking arrangements made with financial institutions and on bilateral agreements with other countries that provide for discounted fees and other means of facilitating transfers of funds and savings.
55. The Committee invites the State party:
(a) To provide information on the correspondent banking arrangements made with financial institutions to facilitate the transfer of remittances by Mauritanian migrant workers living abroad to persons in the State party;
(b) To take steps to lower the cost of sending and receiving funds;
(c) To make savings more accessible.
5.Promotion of sound, equitable, humane and lawful conditions in connection with international migration of workers and members of their families (arts. 64-71)
Sound, equitable and humane conditions in connection with international migration
56.The Committee welcomes the bilateral agreements on migration reached between the State party and eight other countries. It finds it regrettable, however, that, despite the very large number of Mauritanian migrant workers living abroad, the State party has not signed any bilateral or multilateral agreement which would guarantee them sound, equitable and humane conditions in accordance with article 64 of the Convention.
57. The Committee recommends that the State party scale up its efforts to sign bilateral and multilateral agreements that will promote regular migration, guarantee sound, equitable and humane conditions for Mauritanian migrant workers living abroad and provide procedural guarantees that will allow them to avail themselves of their rights and obtain redress when appropriate.
Return and reintegration
58.The Committee notes with satisfaction the existence of reintegration projects to assist returning Mauritanian migrants in the State party. The Committee is concerned, however, by the lack of information on guarantees of sufficient and adequate support for Mauritanian migrants returning to the State party.
59. The Committee urges the State party:
(a) To ensure that current and future readmission agreements between the State party and host countries guarantee the durable economic, social and cultural reintegration of migrant workers who return to the State party, establish procedural guarantees for migrant workers and their families and ensure that Mauritanian migrant workers who are expelled are not subject to ill-treatment;
(b) Ensure that Mauritanian migrant workers who return to the State party have effective access to the funds allocated for them and receive sufficient and adequate support.
Illegal or clandestine movements and employment of migrant workers in an irregular situation
60.The Committee welcomes the significant legislative and regulatory measures adopted by the State party to combat human trafficking. The Committee is nevertheless concerned by:
(a)The absence of studies, analyses and disaggregated data that would be of use in evaluating the scale of the trafficking of persons to, through and from the State party;
(b)The absence of specific agreements on this matter.
61. The Committee recommends that the State party:
(a) Systematically compile data, disaggregated by sex, age and origin, with a view to combating the human trafficking and smuggling more effectively;
(b) Scale up its campaigns for the prevention of the trafficking and smuggling of migrant workers and adopt appropriate measures to counter the dissemination of misleading information regarding emigration and immigration;
(c) Improve the training of police officers and other law enforcement officials, border guards, judges, prosecutors, labour inspectors, teachers, health-care providers and the State party ’ s embassy and consular personnel regarding means of combating human trafficking and smuggling;
(d) Strengthen its mechanisms for investigating cases of human trafficking and for prosecuting and punishing traffickers;
(e) Provide protection and assistance to all victims of trafficking by, in particular, offering them shelter and developing and implementing projects designed to help them to rebuild their lives;
(f) Strengthen its international, regional and bilateral cooper ative efforts to prevent and combat human smuggling and trafficking.
6.Follow-up and dissemination
Follow-up
62. The Committee requests the State party to include detailed information in its second periodic report on the steps taken pursuant to the recommendations made in these concluding observations. It recommends that the State party adopt all appropriate measures to ensure that these recommendations are acted upon by, inter alia, submitting them to members of the Government and of the legislature, as well as to local authorities, for consideration and follow-up.
63. The Committee encourages the State party to involve civil society organizations in the implementation of the recommendations made in these concluding observations.
Follow-up report
64. The Committee invites the State party to provide it with information in writing by 1 May 2018 on the actions taken pursuant to the recommendations made in paragraphs 17, 23, 29, 31 and 43 herein.
Dissemination
65. The Committee also requests the State party to disseminate the Convention and these concluding observations widely to, inter alia, public bodies, the judiciary, non-governmental organizations and other members of civil society with a view to raising awareness of the Convention among judicial, legislative and administrative authorities, civil society, the media and the public at large.
Technical assistance
66. The Committee recommends that the State party continue its cooperation with specialized agencies and programmes of the United Nations system, including the Office of the United Nations High Commissioner for Human Rights, so that it may continue to benefit from their technical assistance and capacity-building support in connection with the preparation of its reports.
7.Next periodic report
67. The Committee invites the State party to submit its second periodic report by 1 May 2021 at the latest and to include information on the action taken pursuant to these concluding observations in that report. The State party may wish to use the simplified reporting procedure, whereby the Committee draws up a list of issues that is then transmitted to the State party prior to the submission of its next report. The State party ’ s replies to that list of issues would then constitute its report under article 73 of the Convention, thereby doing away with the need to submit a traditional periodic report.
68. The Committee wishes to draw the State party ’ s attention to its guidelines for the preparation of periodic reports (CMW/2008/1) and to remind it that such reports are not to exceed 21,200 words in length pursuant to General Assembly resolution 68/268. In the event that the report exceeds that word limit, the State party will be asked to shorten the report in accordance with the above-mentioned guidelines. If the State party is not in a position to review and resubmit its report, the translation of the report for the purpose of its consideration by this treaty body cannot be guaranteed.
69. The Committee urges the State party to ensure the broad-based participation of all ministries and public bodies in the preparation of the next periodic report (or its replies to the list of issues prior to reporting if it chooses to use the simplified reporting procedure) and to consult broadly with all stakeholders, including civil society and migrant workers ’ and human rights organizations.
70. The Committee also invites the State party to submit an updated common core document, not to exceed 42,400 words, in accordance with the harmonized guidelines on reporting under the international human rights treaties, including guidelines on a common core document and treaty-specific documents (HRI/MC/2006/3), approved at the fifth inter-committee meeting of the human rights treaty bodies in June 2006.