International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), 1990

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), 1990

Introduction

In 1972, the United Nations (UN) raised for the first time its concern about the rights of migrant workers. Following a report in 1976 by a UN Special Rapporteur, who recommended an international convention on migrant workers; the UN General Assembly set up in 1980 a working group; open to all UN Member States, to draw up such an international convention. Several international organs and organizations were invited to participate in the process.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) ^[1] was adopted by the UN General Assembly adopted Resolution 45/158 without a vote on December 18, 1990 and entered it into force on 1 July 2003.2  It is the most recent UN human rights treaty to come into force.

Irregular migration

Irregular migration is usually the movement that takes place outside the regulatory framework of the sending, transit and receiving countries. There is no clear or universally accepted definition of irregular migration. Looking at it from the point of view of destination countries, it is the unauthorized entry and residence in the country. In other words, the migrant does not possess the required documents to enter or stay in the country. From the perspective of the sending country, irregular migration refers to leaving the country without obtaining necessary documents.

The word used for such migrant is irregular and not illegal because the word ‘illegal’ is very negative. Also, an act can be illegal, but a person can never be illegal.

Types of irregular migration

In most cases, the irregular migrants enter the destination country secretly but become irregular after entering the country.

They include:

• Those who overstay their visa or permit of residence.
• Persons whose employers withdraw an authorization to work that is tied to the immigration status.
• Those who have been cheated by recruiting agents or smugglers that make them believe that they are crossing the border in a regular way.
• Asylum seekers in the destination country after refusal to provide refugee status.
• Those who have crossed the border secretly, this includes those smuggled or trafficked.

The International Convention on the Protection of the Rights of All Migrant Workers

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) is a global diplomatic deal to guarantee dignity and equality in an era of globalization. The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) is the mechanism to monitor and measure the national agencies; and actors responsible for implementation of the CRMW articles.

The Convention sets minimum standards for migrant workers and members of their families, with a focus on eliminating the exploitation of workers in the migration process. The reporting cycle is an important process to ensure compliance of rights with international obligations under the core human rights conventions. The cycle creates a unique opportunity to assess the state of human rights protection within one’s own jurisdiction and to create a national plan for effective policymaking and implementation of the rights recognized in the Convention.

The Convention defines groups of migrant workers in specific categories: frontier, seasonal, self-employed, seafarer, and itinerant, and consists of nine parts; scope and definitions; non-discrimination with respect to rights; human rights of all migrants; other rights of migrants who are documented or in a regular situation; provisions applicable to particular categories of migrants; the promotion of sound, equitable, humane, and lawful conditions in connection with international migration; application of the convention; general provisions; and final provisions.

The Committee on Migrant Workers

Article 72 of the ICRMW established the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (known as the Committee on Migrant Workers). It met for the first time in March 2004.

Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)

The Committee examines reports submitted by States parties ^[2] on legislative, judicial, administrative and other measures they have taken to give effect to the Convention and any factors and difficulties affecting the List of Issues Prior to Reporting (LOIPR)of the Convention. In examining States parties’ reports, the Committee works closely with the International Labour Organization (ILO). The outcome of the Committee’s examinations is known as the “concluding observations” where the Committee outlines its concerns and recommendations to the State party concerned ^[3]. The Committee has so far not issued any general comments; however, it is foreseen that it will publish its interpretation of the content of human rights provisions on thematic issues. The Committee may, moreover, consider individual communications concerning allegations of violations of rights enshrined in the ICRMW ^[4].

In order for the mechanism to be accessible to a migrant worker; the State party under which jurisdiction the migrant worker is subject to must have made a declaration accepting the competence of the Committee to consider such communications. The Committee will consider the received communications in light of all the information made available to it by the parties and thereafter it will issue a response in the form of “views”. The Committee may also entertain interstate claims ^[5] whereby a State party may bring to the Committee’s attention that another State party is not fulfilling its obligations under the Convention. This mechanism has so far not been employed within the other human rights treaties.

Structure

This 14-member committee serves as the main mechanism to monitor and measure States’ abilities to apply the articles of the Convention. The CMW reviews State reports and interacts with governmental delegations to enforce the rights in the Convention. Essential to the interaction at the international human rights level is the ability of advocates and activists to provide input during the reporting process to ensure the effectiveness of the Convention.

List of Issues Prior to Reporting (LOIPR)

The initial report is due one year after a country ratifies the Convention. Periodic reports are due every five years and whenever requested by the CMW. These reports clarify the current situation and commitment to comply with the convention, and should cover the substantive CRMW articles as well as build on its constitutional and legal frameworks. The Committee encourages governments to use the Convention as a guide in administrative policymaking and legislative practices. There is a List of Issues Prior to Reporting (LOIPR) to guide the entire cycle, and the Concluding Observations to guarantee results before the beginning of the next review. The reporting process is centered on a conversation where the voices of the migrant workers and their families are heard.

The CMW was modified in April 2011. Now the Committee draws up a list of issues first, with the subsequent State report being a response. Civil society should still begin the reporting cycle with communities sharing their visions of fundamental freedoms relating to migration; and how they want to realize rights. From these basic conversations, campaigns can be coordinated to generate pressure on States throughout the five phases of the reporting cycle. The people’s movement can shape the conversation by choosing the issues.

Timings of Session

There are two plenary sessions every year. The first takes place for two weeks in April, and the second for a week and a half in late August to early September. During each plenary session, the Committee examines initial and periodic reports. It will also adopt the LOIPR for other States coming up in next year for review. As with all treaty bodies, the Committee meetings all take place in Geneva, predominantly at the Palais Wilson.

There are a variety of ways for people to be heard at the plenary sessions; and it is important to be involved as early as possible in the process—up to 18 months prior to the State review. NGOs should present the information from the community and national level conversations to put people’s priorities as central concerns, and must be persistent in every phase of the process. It is vital for NGOs to participate with the Committee immediately prior to the consideration phase; through the informal meetings and lunchtime briefing during the plenary sessions. It is also crucial to be available for any discussion regarding the drafting of the Concluding Observation recommendations. The International NGO Platform for the Migrant Workers Convention is an important partner in the implementation of the Convention.

The UN human rights treaty body process follows a similar pattern of the five phases for each State review: preparation, interaction, consideration, adoption, and implementation. The first and final phases are concentrated more in one’s community and country, where human rights matter most. The three middle phases are centred on the Committee process and the directly impacted individuals and communities.

Preparation: Education and Explanation

The preparation phase is predominantly centred on engaging with one’s own community to understand the United Nations human rights instrument and institution. Civil society must educate people around the rights enshrined in the Convention; and explain what the UN human rights mechanisms can and can’t do to realize these rights. The heart of the action in the preparation phase is examining the human rights record of the government under review, holding the State accountable and moving toward a campaign that can utilize the UN to change daily human rights conditions.

It is an opportunity to influence state policies and practices to positively impact Indigenous Peoples’ daily lives and promote dignity, equality, and justice. The most important result of the preparation phase is the creation of an alternative report that supplements the State report and the LOIPR. It is advisable to coordinate the preparation phase at least 12–18 months prior to the review of the State.

Interaction and Consideration

The interaction phase consists of participation with the CMW to ensure that the issues, questions, and specific recommendations from the people’s conversations are understood; and considered in the State review. It prepares the 14 Committee members, especially the Country Rapporteur; to be able to read through the government rhetoric and raise specific questions; that capture the main challenges regarding current practices by policymakers and politicians. The core of this phase is initiation and building of relationships with Committee experts. Civil society’s purpose is to provide simplified documents for each article and the LOIPR in one to two pages. The documents are to be shared with Committee members to allow for more constructive dialogue. It is essential to attempt to engage with the State to partner for solutions. Recommendations should be targeted toward a country’s national policies and transformation of the current political model to achieve the articles of the Convention.

It is best to start the campaign 15–18 months in advance. NGOs can assist the Country Rapporteur to ensure questions and recommendations are featured prominently in the Concluding Observations. The interaction allows civil society to begin engagement at the plenary session one year prior to the review of the State. Civil society provides input from directly impacted individuals to Committee all the way up to the actual start of the review. The interaction phase intensifies one month prior to the plenary session with submission of a shadow report. It is also important to begin distributing the short summary sheets with Committee experts during this phase.

The consideration phase is where civil society’s earlier interactions result in an informed Committee speaking on behalf of a national human rights movement. The coordination of civil society should result in national recommendations; that provide a roadmap to realizing rights for migrant workers and members of their families. NGOs should submit their shadow reports to the CMW and Secretariat three weeks prior to the plenary session.

Adoption: Mobilization and Connection

The adoption phase is where recommendations are issued to the State based on the responses to the LOIPR; the shadow reports of NGOs, civil society briefings, and the interactive dialogue in the six-hour review of the State. At the adoption, the CMW releases its Concluding Observations; which provide a blueprint for a better approach to promoting and protecting human rights of migrants; ere is also mention of wide dissemination so there can be a national conversation on the results of the CMW; that can generate conversations in government agencies and departments all the way to the grassroots communities throughout the country. It is vital to ensure the communities receive results of the campaign. The thematic working groups and national coalition must maintain its mobilization; and create new connections to realize the recommendations in the Concluding Observations.

Implementation: Dedication and Realization

The final phase of implementation requires dedicated follow-up for fundamental rights; and freedoms cited in the Concluding Observation announced at the adoption. The Concluding Observations create a blueprint highlighting the major concerns to build better policy; and also provides the next deadline for a national report, allowing all advocates to create a multi-year plan to realize human rights at home.

Salient features of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families-

• Article 7 of the Convention guarantees that all the migrants and their family members have equal rights; and the State will protect these rights of all the migrants without any discrimination by sex, race, colour, marital status, birthplace or any other ground.
• Article 8 of the Convention guarantees that the migrant and his/her family can leave the destination country or any other country; including their country of origin at any point in time and enter his/her country of origin without any unreasonable restriction. There is an exception to this right which is that the State can impose reasonable restriction on the entry and exit of the migrant; if it affects the public safety, health or threatens national security.
• Article 9 guarantees the right to life to the migrant and his/her family members. The migrants and their family members have the right to live a dignified life in the destination country who is a signatory to this convention.
• Article 10 protects the migrant worker as well as his/her family members from inhumane and cruel treatment. It protects them from all kinds of torture in the destination country.
• Article 11 protects the migrant worker as well as hi/her family members from the chains of bonded labour or slavery. It expressly prohibits slavery as well as forced labour of the migrant workers.
• Article 12 states that all the migrant workers and their family members have the right to freedom of thought, conscience, and religion. They can follow the religion of their choice, and no one can force them to change their religion or impose their thoughts on them. But this freedom will be curtailed if it affects the national security, public order or health.
• Article 13 provides freedom to hold opinion and expressions to the workers and their family members without any interference. This freedom includes freedom to receive and impart to others the opinion of migrant workers and their family members. But this right should not be misused to disrespect others or defame others.
• Article 14 ensures that others do not invade the private life of the migrant worker and his/her family members.
• Article 15 protects their property. It protects them from illegal deprivation of their property.
• Article 16 protects the migrant worker as well as his/her family members from mental as well as physical violence by police officials; and private persons or institutions. It also protects them from unlawful arrest by police officials. It states that they should be informed of the grounds of arrest in their language, in case they are arrested.
• Article 17 states that all those migrant workers and their family members who are deprived of their liberty should be treated with dignity.
• Also, the article 18 states that the person who is detained shall be given the chance to be heard and should be given the chance to fair trial by a competent court.
• Article 19 protects the migrant workers as well as their family members from retrospective application of criminal laws.
• Articles 20-24 protect the migrant worker and his family members from undue influence during the time they are deprived of their liberty. It protects them from collective expulsion and destroying their travel documents without any authorization.
• Article 23 provides consular and diplomatic assistance to the migrant and his family members.
• The article 25 ensures that the terms of service and payment of the migrant workers as well as their family members are not less than what the nationals of that state receive.
• Article 26 provides them the right to form trade unions.
• The article 27 and 28 ensure social and medical security to the migrant workers and their family members.
• Article 30 ensures that the child of a migrant gets a name, nationality and birth certificate.
• The article 31 protects migrant’s cultural identity.
• Article 32 gives the right to repatriate a migrant’s earnings and savings.

^[1] UN General Assembly resolution no. 45/158 of December 1990 at http://www2.ohchr.org/english/law/cmw.htm

^[2] Article 73, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

^[3] The concluding observations are publicly available on the United Nations human rights treaty bodies; database of the Office of the United Nations High Commissioner for Human Rights www.unhcr.ch/tbs/doc.nsf.

^[4] Article 77, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

^[5] Article 76, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

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