How the UPR can support the UN Convention on the Rights of All Migrant Workers

Mr. Alan Desmond, from the School of Law, University College Cork, has published in the "European Journal of Migration" an article in relation with the UPR: "The Triangle that could Square the Circle? The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the EU and the Universal Periodic Review ". The article in the European Journal of Migration and Law is available at this webpage.

UPR Info wanted to know more about the possibility of linking the UPR and the ICMW.

(1) What protection is guaranteed by the ICMW? What are the advantages for migrants?

Alan Desmond: The ICMW, similar to other core international human rights instruments like the CRPD and the CRC, takes the rights set out in the International Bill of Human Rights, namely the UDHR, 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. The elaboration of documents such as the CRC and ICMW was necessary because despite the existence of universal normative instruments like the ICCPR and ICESCR, in practice rights were not being adequately extended to vulnerable groups. The ICMW thus guarantees the protection of rights found in the ICCPR such as the right to life; freedom from torture; freedom from arbitrary arrest and detention; and freedom of expression, as well as rights found in the ICESCR such as the rights to join trade unions; to medical care; and to education for children.
The advantages of the ICMW for migrants include the fact that the Convention is a coherent human rights instrument which protects migrants as a category. Apart from rights found in the ICCPR and ICESCR, the ICMW contains a number of important migrant-specific safeguards such as, for example, the obligation on States to ensure, in so far as practicable, that migrant workers who are detained in a State of transit or employment for violation of provisions relating to migration shall be held separately from persons who have been convicted or detained pending trial. Similarly, the Convention includes a prohibition on unlawful confiscation or destruction of a migrant’s personal documents and recognises the right of migrants to transfer their earnings and savings upon the termination of their stay in the State of employment.

The ICMW also obliges States to inform migrants of their right to the consular protection and assistance of their States of origin when any right set out in the Convention is impaired, and particularly in the event of expulsion. Article 22 of the Convention prohibits collective expulsion and provides that a migrant may only be expelled on the basis of a decision taken by the competent authority in accordance with law following an individualised assessment of the case. Indeed Article 22 affords a particularly robust catalogue of safeguards to migrants who are to be deported, going beyond the protection provided in instruments such as the ICCPR and regional measures such as the EU Return Directive.

Another advantage of the ICMW for migrants is the dialogue that States Parties to the Convention engage in with the Committee on Migrant Workers (CMW), the body responsible for monitoring how States which have ratified the ICMW comply with the obligations it imposes on them. The CMW can provide expert, authoritative guidance to States on how to apply the standards of the Convention. Through its work the Committee can also contribute to the clarification and development of the human rights of migrants.

(2) Why is the ratification of the ICMW such a challenge when it comes to EU countries?

AD: The ICMW is the only one of the ten core international human rights instruments not to have been signed or ratified by any of the 28 EU Member States. They have proffered a wide variety of reasons for non-ratification. These include the financial and administrative burden that ratification would impose on a State; the incompatibility of certain provisions of the Convention with a State’s legal and constitutional framework; the redundancy of the Convention in light of the protection of migrants’ rights provided by national legislation and the regional and international instruments to which a State is party; the claim that ratification would result in a significant encroachment on the sovereignty of States, tying States’ hands when it comes to deciding who may enter their territory; and the competence of the EU in migration matters which, it is claimed, precludes ratification of the Convention by any one individual EU Member State. In the article I suggest that these reasons are absent of any real substance, with a lack of political will being the main reason for non-ratification. It is this unfavourable political position which the UPR may contribute to changing.

(3) Can the UPR bring new tools to the debate on the ICMW?

AD: The UPR could make an important contribution to breaking the EU deadlock on the ICMW. Since the UPR began in 2008 the 28 EU Member States have received a combined total of more than 200 recommendations concerning the ICMW. These recommendations usually ask the State under review to ratify or consider ratifying the Convention. Each EU Member State has received a minimum of three recommendations to ratify or adhere to the ICMW with important destination countries such as France, Spain and the UK receiving more than a dozen such recommendations each, and Germany the recipient of 23 recommendations. The UPR thus indexes the importance attached by (non-EU) countries to the issue of ratification of the Convention by EU Member States. While recommendations are not legally enforceable, as an indicator of the concerns and views of recommending States they may be viewed as carrying a moral weight. Arguably, the greater the number of recommendations which focus on the same issue, the greater the moral gravity attaching to the issue with a correspondingly greater pressure being exerted on the State under review to implement the recommendation.

While the EU28 generally reject recommendations to ratify the Convention, they often provide a response and explanation for the rejection. The recommendations thus force States to engage with the issue of the Convention and bring the issue squarely to their attention. Finland’s acceptance of five first cycle recommendations to consider ratification led it to explain its decision not to ratify on the basis that, inter alia, very few States have ratified the instrument. During the second cycle it again accepted recommendations to consider ratification, arguably displaying at the very minimum an openness to the possibility of ratification. Given the fact that a perceived prohibition on unilateral ratification is advanced by some EU States as a reason for non-engagement with the Convention, the potential impact of ratification by a single EU Member State cannot be underestimated.

Evidence that repeating recommendations in the face of initial rejections may pay dividends is provided by the behaviour of the Czech Republic. During the first cycle it rejected two requests to adhere to or consider ratifying the Convention on the grounds that national legislation offered sufficient protection of migrants’ rights.  It changed its tune during the second cycle, however, accepting two recommendations to consider ratification.

The plethora of ICMW-related recommendations may also have the important effect of galvanising civil society in the EU and further afield to push for ratification by EU Member States. Given that civil society is already thought to have played a role in increasing the rate of ratification of the ICMW, and given the many opportunities for civil society engagement which the UPR process offers, it may not be too fanciful to suggest that the sheer volume and consistency of recommendations to the EU28 concerning the ICMW could provide the spark needed to reignite the flames of civil society engagement in advocating for ratification both at the level of Member States and the EU institutions.