Abstract
More than 25 years have passed since the adoption of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), and yet no European Union (EU) Member State has ratified it. In this chapter, Venturi argues that the broader context of International and European Human Rights Law, which EU Member States are bound to, can constitute the framework to encourage them to support and, eventually, ratify the ICMW. Through the analysis of three areas (health, social security and labour exploitation), the chapter demonstrates that if EU Member States properly supported the ICMW, it would contribute to the development of a comprehensive system for the protection of migrants’ human rights.
The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations. The author wishes to thank the organisers of the roundtable “The EU as a forum of labour migration: Entrepreneurship, Exploitation, Dignity”, held in December 2015, for their availability and commitment, as well as the reviewers for helping improve this paper.
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Notes
- 1.
Alan Desmond. 2018. Shining New Light on the UN Migrant Workers Convention. Pretoria: Pretoria University Law Press (PULP).
- 2.
As well as my dedication to human rights, in particular those of migrants, my interest in the ICMW derives from the Migrants Matter project, a movement of students and young human rights professionals from all over the world. As a collective of research students, we initiated the Migrants Matter advocacy campaign in October 2013. The aim of Migrant Matters is to raise awareness of the ICMW and to push EU Member States to restore the Convention to the political agenda. Thanks to the work of dedicated human rights activists, working on a purely voluntary basis, we successfully lobbied the European Parliament to put a question to the European Commission on the ICMW Moreover, on 18 December 2015, to celebrate the ICMW’s 25th Anniversary, we published an illustrated booklet which explains, in simple language and illustrations, the ICMW’s provisions. This chapter is dedicated to my friends at Migrants Matter, including Alan Desmond. You have been a constant source of inspiration.
- 3.
UN Treaty Collection. n.d. “Multilateral Treaties Deposited with the Secretary-General, Status of Treaties, Chapter IV: Human Rights”. Accessed 18 October 2017. https://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en.
- 4.
Together with the Option Protocol to the CAT. See UN Human Rights, Office of the High Commissioner. “The Core International Human Rights Instruments and their monitoring bodies”. Accessed 18 October 2017. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx.
- 5.
See the status of signature and ratification of the ICMW at UN Treaty Collection. n.d. “Chapter IV: Human Rights, 13. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Accessed 18 October 2017. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en#2.
- 6.
The CoE countries which ratified the ICMW are Albania, Azerbaijan, Bosnia and Turkey. Armenia, Montenegro and Serbia, which are also COE members, have signed but not yet ratified the ICMW.
- 7.
These are the 1949 ILO Convention concerning Migration for Employment (n. 97) and the 1975 ILO Convention Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (n. 143).
- 8.
Article 4 ICMW clarifies the term “members of the family” as encompassing “persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognised as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned”.
- 9.
Written answer given by the former EU Commissioner for Home Affairs, Mrs. Cecilia Malmström, on behalf of the EU Commission on 4 July 2014, available at http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2014-004511&language=EN. Parliamentary question presented by the European Parliament Member Mr. Iñaki Irazabalbeitia Fernández (Verts/ALE) to the Commission on 10 April 2014, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2014-004511+0+DOC+XML+V0//EN (18 October 2017).
- 10.
Written answer given by the EU Commissioner for Home Affairs, Migration and Citizenship, Mr. Dimitri Avramopoulos, on behalf of the EU Commission on 28 September 2015, available at http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2015-009955&language=EN. Parliamentary question presented by European Parliament Members Mr. João Ferreira (GUE/NGL) and Mrs. Inês Cristina Zuber (GUE/NGL) on 18 June 2015, available at http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2015-009955&language=EN (18 October 2017).
- 11.
The expression “illegal migrants” is used by the CESCR. The author does not endorse this terminology as it carries a negative and highly discriminatory meaning, in contrast with sound human rights-oriented language. For this reason, the use of “irregular migrants” or “undocumented migrants” should be preferred. The former will be used throughout the paper.
- 12.
Moreover, as the CESCR notes, “the reference in article 12.1 of the Covenant to ‘the highest attainable standard of physical and mental health’ is not confined to the right to health care. On the contrary, the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment”, para 4.
- 13.
Para 1 ESC. There is, however, a milestone decision, International Federation for Human Rights (FIDH) v France ECSR, Complaint No 14/2003, which found contrary to the ESC. It has been described as a “legislation or practice that denies entitlement to medical assistance to foreign nationals, within the territory of a State Party, even if they are there illegally”. See Georgopoulou, Schrempf and Venturi 2018.
- 14.
Italy’s First UPR cycle (2010), Recommendations by Algeria, available at http://www.upr-info.org/database/index.php?limit=0&f_SUR=83&f_SMR=All&order=&orderDir=ASC&orderP=true&f_Issue=All&searchReco=&resultMax=300&response=&action_type=&session=&SuRRgrp=&SuROrg=&SMRRgrp=&SMROrg=&pledges=RecoOnly (18 October 2017).
- 15.
For example, Siliadin v. France, app. n. 73316/01, 26 July 2005 and CN v. UK, app. N. 4239/08, 13 November 2012, both concerning migrant domestic workers. See Ryan and Mantouvalou (2014).
- 16.
Instead, the ESC contains provisions related to fair working conditions, but as previously stated, they have limited applicability.
- 17.
Moreover, Article 70 additionally requires states to take measures to uphold “standards of fitness, safety, health and principles of human dignity” in respect of migrant workers who are in a regular situation.
- 18.
Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, OJ L 168, 30.6.2009.
- 19.
With very few exceptions, such as Spain and France.
- 20.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An European Agenda on Migration, COM(2015) 240, 13 May 2015, available at http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/communication_on_the_european_agenda_on_migration_en.pdf.
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Venturi, D. (2018). Migrant Workers’ Rights in Focus: Placing the UN Convention on Migrant Workers in the European Human Rights’ Framework. In: Borraccetti, M. (eds) Labour Migration in Europe Volume II. Palgrave Pivot, Cham. https://doi.org/10.1007/978-3-319-93979-7_2
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