By Alan Desmond
As we approach the 25th anniversary of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), Migrants Matter, a group of postgraduate students and young professionals concerned with the treatment of migrants in Europe, is calling on Dimitris Avramopoulos, the EU Commissioner for Migration, Home Affairs and Citizenship, to support ratification of the ICMW by EU Member States.
Adopted by the UN General Assembly on 18 December 1990, the ICMW is one of the ten core international human rights instruments. It is similar to some of the other core human rights treaties like the Convention on the Rights of the Child (CRC) in that it takes the rights set out in the two treaties of general application, the ICCPR and the ICESCR, and codifies and elaborates on them in relation to a particularly vulnerable category of persons, in this case migrant workers and members of their families. What distinguishes the ICMW from the other core instruments is that it is the only one of the ten that has not yet been signed or ratified by any of the 28 EU Member States.
With 93 articles, divided into 9 Parts, the ICMW is the longest of the core instruments. It is therefore perhaps not surprising that the Convention is a comprehensive document, covering the entire migration process from pre-departure in the country of origin, through travel in countries of transit, to entry and residence in the destination State and return to the country of origin. The most controversial feature of the ICMW is Part III which sets out the rights to be enjoyed by all migrants, regardless of their status. The explicit recognition that undocumented migrants have rights which States must respect is often cited as an impediment to ratification. Studies have shown, however, that the main obstacle to ratification is a lack of political will. It is this issue of political will that Migrants Matter is seeking to influence.
While ratification of treaties is a matter for each individual State, the issue of ratification of the ICMW by EU Member States is complicated by the fact that the EU has shared competence in the field of asylum and migration with its Member States. This is another one of the many impediments cited by EU Member States in explanation for their failure to ratify. Indeed, in answer to a question from the European Parliament last year which Migrants Matter proposed and helped to draft, the then Commissioner for Home Affairs, Cecilia Malmström, claimed that ratification would require prior authorization by the EU because some elements of the ICMW affect EU competences.
Given the complicated nature of the political and legislative decision-making structure at the EU level, and the opacity lent to that structure by nomenclatural niceties which mask important differences between various actors, Commissioner Malmström’s response can have the effect of bringing even the most ardent advocate for ratification up short.
The issue of prior authorization is not however an insurmountable obstacle. Indeed in 2013 the Commission proposed that the Council of Ministers of the EU authorize Member States to ratify the International Labor Organization (ILO) Convention on decent work for domestic workers, very many of whom are migrants. The European Parliament endorsed the Commission’s proposal and in due course the Council accepted the proposal. A Council decision authorizing ratification was issued in January 2014. So far 5 EU Member States have ratified the ILO Convention (with 2 of them, Italy and Germany, ratifying even before the authorization was given by the Council of Ministers). There is no reason why the same authorization procedure cannot be followed in the case of the ICMW.
It is worth pointing out that ratification of the ICMW by EU Member States would primarily benefit non-EU citizens. Citizens of an EU country who work or reside in a second EU Member State enjoy a robust catalogue of rights conferred on them by EU law. While the ICMW sets out a minimum standard of rights protection, it is an instrument which is, not surprisingly, overwhelmingly concerned with the rights of migrants and in this regard could operate as a corrective to the border control and security concerns which have largely animated the development of EU migration law and policy since the EU gained competence in this field in 1999. Greater reference to the ICMW in the future development of EU migration law and policy would go some way to re-setting the balance between the competing imperatives of migration control and fair treatment of migrants.
Ratification of the ICMW by EU Member States is not of course a panacea: it will not magic away the human rights violations and degradations suffered by so many migrants in Europe. It will however send a clear message that the ratifying State takes the issue of migrants’ rights seriously, that human rights are not only for the citizens of the EU, but for all people regardless of their country of origin and status in the destination country.
Ratification would also address the hypocrisy inherent in the fact that EU Member States recommend countries around the world to ratify some of the other core international human rights instruments such as the Convention against Torture while the ICMW goes ignored in the EU. This disconnect is starkly illustrated by the EU Strategic Framework and Action Plan on Human Rights and Democracy, a document adopted in 2012 which is seen as evidence of the commitment of the EU and its Member States to giving effect to the EU’s pledge to promote human rights in its external policies and dealings with non-EU countries. One of the goals listed among the EU’s action items is intensified promotion of ratification and effective implementation of key international human rights treaties!
The obligation on States which ratify the ICMW to report periodically to the Committee on Migrant Workers, the body of independent experts which monitors States Parties’ compliance with the provisions of the ICMW, establishes a dialogue between the Committee and States Parties. This dialogue can provide useful guidance to States on how to implement the requirements of the Convention and can help in clarifying and developing international human rights standards for migrant workers and members of their families.
Apart from the practical impact on migration law and policy that ratification might have, it could also help to change the public narrative around migration, something which is as important as laws and policies in ensuring the realization of human rights in practice.
Since the launch of the epostcard initiative calling on Commissioner Dimitris Avramopoulos support ratification of the ICMW, over 500 epostcards have been submitted. The initiative is part of a number of activities being organized by Migrants Matter in the run up to the 25th anniversary of the ICMW on 18 December which will culminate with the launch in Brussels of an illustrated booklet presenting the provisions of the Convention in a novel, accessible format.
To send an epostcard to Commissioner Dimitris Avramopoulos before the initiative closes on 30 June, please click here. You can follow Migrants Matter on Facebook and Twitter. To read more about the ICMW in the EU context, please click here.
Alan Desmond is a Ph.D. candidate and Irish Research Council Scholar at the School of Law, University College Cork (Ireland) and E.MA Fellow in International Law at the European Inter-University Centre for Human Rights and Democratisation (Italy).
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