Shining new light on the UN Migrant Workers Convention

Alan Desmond

Description

The UN Migrant Workers Convention is the most comprehensive international treaty in the field of migration and human rights. Adopted in 1990 and in force since 2003, it establishes the minimum standards of human rights protection to which migrant workers and members of their families are entitled. However, it is the least well known of the core international human rights instruments and has so far been ratified by only 51 states.This volume shines new light on obstacles and opportunities facing the Convention, its added value in international human rights law and its application in selected state parties. It combines the expertise of academics and practitioners, with the contributions of the latter informed by work on policy and advocacy in NGOs, international organisations and specialised agencies.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2018
• Nombre de lectures: 0
• EAN13: 9781920538736
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Shining new light on the UN MIGRANT WORKERS CONVENTION

edited by Alan Desmond

2017

Shining new light on the UN Migrant Workers Convention

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-73-6

© 2017

TABLE OF CONTENTS

Acknowledgments

Contributors

Foreword François Crépeau

Introduction: The continuing relevance of the UN ICRMW Alan Desmond

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Part I: Obstacles and opportunities The politics of the UN Migrant 1 Workers Convention24 Antoine Pécoud Making rights in times of crisis: Civil society 2 and the Migrant Workers Convention45 Lisa Simeone and Nicola Piper

Part II: The ICRMW in international human rights law The Migrant Workers Convention: A legal tool to 3 safeguard migrants against arbitrary detention72 Mariette Grange Indirect success? The impact and use of the 4 ICRMW in other UN fora101 Stefanie Grant & Beth Lyon Putting things into perspective: The added value 5 of the substantive provisions of the ICRMW129 Athanasia Georgopoulou, Tessa Antonia Schrempf & Denise Venturi Working together to protect migrant workers: 6 ILO, the UN Convention and its Committee151 Ryszard Cholewinski

Part III: Application of the ICRMW in selected state parties Universal citizens globally, foreign migrants 7 domestically: Disparities in the protection of the rights of migrant workers by Ecuador176 Daniela Salazar

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Guatemala's implementation of the ICRMW: Emerging efforts204 Cathleen Caron, Kathleen Griesbach, Ursula Roldan & Roxana Sandoval

Mexico and the ICRMW: Protecting women migrant workers229 Gabriela Díaz Prieto and Gretchen Kuhner

The ICRMW and Sri Lanka Piyasiri Wickramasekara

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Part IV: Relevance notwithstanding non-ratification The ICRMW and the US: Substantive overlap, 11 political gap278 Beth Lyon A vexed relationship: The ICRMW vis-à-vis 12 the EU and it s member states295 Alan Desmond

Bibliography

Index

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ACKNOWLEDGMENTS

First and foremost, I am indebted to my parents and to my uncle, Con Desmond. For their encouragement and good counsel I wish to thank Graziano Battistella, Linda Bosniak, Paul De Guchteneire, Franck Düvell, Veronica Gomez, Stefanie Grant, Ray Jureidini, Magnus Killander, Michele LeVoy, Beth Lyon, Siobhán Mullally, Manus O’Callaghan, René Plaetevoet, Colin Rajah, Susan Slyomovics, Kristina Touzenis, Denise Venturi and Andrea Vilán. I would like in particular to thank Mariette Grange and Nicola Piper whose support for and participation in this project from the outset has been invaluable. Both have been a constant source of insightful ideas and sound suggestions. I am also extremely grateful to François Crépeau for so generously offering to write the foreword.

This book has its genesis in a conference I organised under the auspices of the Global Campus at the European Inter-University Centre for Human Rights and Democratisation (EIUC) in July 2014 at which a number of the contributors to the present volume delivered presentations. I am grateful to Valentina Abita of the Global Campus and to Florence Benoît-Rohmer, then Secretary-General of EIUC, for making that conference possible.

Each chapter in this collection underwent a double-blind peer review process involving evaluation by two external reviewers. I would therefore like to express my gratitude to the following individuals, each of whom reviewed at least one chapter:

Tanya Basok Wolfgang Benedek Laurie Berg Marco Borraccetti Linda Bosniak Vahan Bournazian Elvira Dominguez-Redondo Suzanne Egan Rolando Garcia Miron Felipe Gómez Isa Mariette Grange

David Keane Jan Klabbers Magdalena Kmak Sonia Morano-Foadi Ronaldo Munck Lori Nessel Jan Niessen Pia Oberoi Nicola Piper Bernard Ryan

Particular thanks go to Jan Klabbers who reviewed three chapters and to Mariette Grange and Nicola Piper who, in addition to contributing chapters of their own to the collection, also acted as reviewers for some of the pieces included.

The greatest debt of gratitude is, of course, owed to the authors of the 12 chapters which together make up this collection. It has been a pleasure to work with them and I am grateful for the initial alacrity with which they

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accepted the invitation to contribute and their patience during the book’s long gestation. I would also like to thank the individuals who produced work in draft form on the implementation of the ICRMW in Azerbaijan, Bosnia and Herzegovina, Morocco, Uganda, the Philippines and Uruguay. Time constraints meant that these draft chapters could not be included in this volume. I hope that this is a temporary setback and that they will see the light of day, sooner rather than later.

Last but not least, Lizette Hermann at Pretoria University Law Press shepherded the project through the entire production process. She has been a model of professionalism, good cheer and equanimity in the face of countless queries and endless emails.

I would like to dedicate this book to three individuals whose work in connection with migrants’ rights and human rights more generally has been a source of inspiration, namely, Mariette Grange, Angela Melchiorre and Siobhán Mullally: mo mhíle buíochas libh.

Alan Desmond Leicester, November 2017

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CONTRIBUTORS

Cathleen Caronis the founder and executive director of Justice in Motion, a Brooklyn-based nonprofit that protects migrants’ rights by ensuring justice across borders. An attorney and summa cum laude graduate of the American University Washington College of Law, Cathleen has over twenty years of human rights experience in the United States and abroad.

Prior to launching Justice in Motion (formerly Global Workers Justice Alliance), Cathleen directed a needs assessment of human trafficking in East Timor for the Alola Foundation. She worked in Florida as a staff attorney with the Migrant Farmworker Justice Project, successfully litigating class action employment cases. She also consulted on labour migration issues with Realizing Rights: The Ethical Globalization Initiative, run by the former President of Ireland. Before law school, Cathleen spent more than three years in Guatemala assisting in human rights litigation, researching internal displacement, and directing an indigenous rights programme for the United Nations.

Cathleen has been recognised with her law school’s Outstanding Law Graduate Award, the Peter Cicchino Award for Outstanding Public Advocacy, and the American Constitutional Society’s David Carliner Public Interest Award. She has published articles inHuman Rights Brief, Clearinghouse Review Journal of Poverty Law and PolicyandThe Christian Science Monitor.

Ryszard Cholewinskithe Senior Migration Specialist in the is International Labour Organisation (ILO)’s Regional Office for Arab States in Beirut. Previously, he was the Migration Policy Specialist in the Labour Migration Branch in the Conditions of Work and Equality Department at ILO Headquarters in Geneva. His responsibilities include work on policy, research, training and technical cooperation activities, in collaboration with other units in ILO Headquarters, field offices and ILO’s tripartite constituents, with a view to advancing ILO’s rights-based approach to labour migration while recognising labour market needs.

Prior to joining the ILO in September 2010, Ryszard was a Senior Migration Policy and Research Specialist at the International Organisation for Migration (IOM) in Geneva and Reader in Law at the University of Leicester in the United Kingdom.

He is a lawyer by training with 13 years of previous experience in an academic setting. He has written widely on international labour migration, the human rights of migrants, and various aspects of European law and policy relating to migration and asylum. Most recently, he was the lead author ofAddressing governance challenges in a changing labour migration landscape, the report for the general discussion on labour migration at the 106th Session of the International Labour Conference in June 2017. He was also one of the principal authors of the Handbook for Parliamentarians onMigration, human rights and governance(October 2015), a joint publication of the Inter-Parliamentary Union (IPU), the ILO and

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the Office of the United Nations High Commissioner for Human Rights (OHCHR). He holds a doctoral degree (LL.D.) from the University of Ottawa, a Master of Laws degree (LL.M.) from the University of Saskatchewan, and a Bachelor of Laws degree (LL.B.) from the University of Leicester.

Alan Desmondis a lecturer in law at the University of Leicester. Before joining Leicester Law School in September 2016 he worked at third-level institutions in Ireland, Italy and Poland. He has published on the topic of migrants’ rights in theEuropean Journal of Migration and Law,Human Rights Law Reviewthe and European Journal of International Law. He has been a Visiting Researcher at Harvard Law School and UCLA School of Law and has delivered presentations on the Migrant Workers Convention in Armenia, Ireland, Italy, Russia and the UK. Before entering legal academia, Alan worked as a freelance print and broadcast journalist in Poland and wrote a number of award-winning Irish language books.

Athanasia Georgopoulouholds an LL.B. Degree in Law and an LL.M. in Sociology of Law from the Faculty of Law of the National and Kapodistrian University of Athens and a European Master's Degree in Human Rights and Democratisation from the European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice. Since 2009 she has worked as a lawyer in several law firms in Athens and since August 2015 she has been a member of the legal unit of the Greek Council for Refugees, currently working mainly on immigration detention and the implementation of a UNHCR detention programme. She co-authored the AIDA country report for Greece (2016) and is also member of the Group of Lawyers for the rights of migrants and refugees, based in Athens.

Mariette Grange, Senior Researcher at the Global Detention Project, is a researcher and human rights practitioner. Mariette has held top international human rights advocacy positions. She has extensive experience of international human rights mechanisms and international relations. Mariette co-established the Amnesty International office to the United Nations in Geneva and provided leadership to Human Rights Watch during the institution-building years of the Human Rights Council. Mariette has helped establish rights based programmes and operations on migrant and refugee issues at the World Council of Churches and the International Catholic Migration Commission. She has coordinated external relations at the International Council on Human Rights Policy; done research on UN treaty bodies’ jurisprudence and practice and produced pilot training material on the human rights of migrants for the Office of the High Commissioner for Human Rights. Mariette advises and trains civil society organisations and participates in academic projects and inter-governmental processes.

Mariette holds an MA in translation from the Institut Supérieur de Traduction et Interprétation, Brussels. Her MA thesis focused on anthropology and the caste system. She has published extensively in her area of expertise in English, French and Spanish and believes in multi- disciplinary and innovative approaches to migration issues.

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Stefanie Granta Visiting Senior Fellow at the London School of is Economics. She has written on a range of topics related to human rights and migration, including the expert paper on human rights for the Global Commission on International Migration. Her recent work has been on irregular cross border journeys, identification of those who die or go missing, and the rights of their families.

Stefanie has headed Amnesty International’s Research Department, and Amnesty’s Office in Washington DC, acted for immigrants and refugees as a solicitor in London, and directed the research branch of the Office of the UN High Commissioner for Human Rights in Geneva. She is Chair of the Institute on Statelessness and Inclusion, and a trustee of the European Network on Statelessness.

Her publications include: ‘The US and the international human rights treaty system: for export only?’ in P Alston & J Crawford (eds)The future of UN human rights treaty monitoring‘Recording and identifying (2000); European frontier deaths’ (2011)European Journal of Migration and Law; ‘Identification and tracing of dead and missing migrants’ in the IOM’s Fatal Journeys II (2016); andHuman rights of migrants in the 21st century (2017) which she co-edited with Elspeth Guild and Kees Groenendijk.

Kathleen Griesbach is a PhD Candidate in Sociology and a Paul F. Lazarsfeld Fellow at Columbia University. Her dissertation explores the role of unstable schedules in the experiences of contingent workers, including migrant agricultural workers and adjunct university instructors. She has conducted research on the Texas-Mexico border and in New York city. Kathleen holds a B.A. in English and Latin American Studies from New York University and an M.A. in Latin American Studies from UC San Diego, where she conducted and published research with the Mexican Migration Field Research Programme. For her M.A. thesis she conducted ethnographic research on local-federal immigration enforcement in North Carolina and southern California, including 32 qualitative interviews and work with nonprofits in both regions, and published some findings in the academic journalNorteamérica. Kathleen worked in Madrid, Spain as a Fulbright English Teaching Assistant from 2011-2012. She has taught in the Culture, Art, and Technology writing programme at UC San Diego and in Columbia’s Sociology Department. Prior to pursuing her PhD, Kathleen worked as a paralegal on civil rights and employment cases for Texas RioGrande Legal Aid. Her research agenda is deeply informed by the people she met and worked with in South Texas.

Gretchen Kuhneris the director of The Institute for Women in Migration (IMUMI), a Mexcian NGO that advocates for women migrants and their families within the region of Mexico, the US and Central America through legal strategies, research, communication and policy reform.

Gabriela Díaz Prietocoordinates IMUMI´s research. Both Gretchen and Gabriela have written extensively on issues related to migrant women and human rights in the Mexican context, including a chapter on Mexico´s role in promoting and implementing the ICRMW inMigration and human rights, edited by Paul de Guchteneire, Antoine Pécoud and Ryszard Cholewinski, and published by Cambridge University Press in 2009; and a study on

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Mexico’s commitment to the human rights of women migrant workers, published in 2016 by UN Women and IMUMI, http://www. unwomen.org/-/media/headquarters/attachments/sections/library/pub lications/2016/20-mexicos-commitment-to-the-human-rights-of-women- migrant-workers-2016-en.pdf?la=en&vs=3357

Beth Lyonis a Clinical Professor of Law and founder of the Farmworker Legal Assistance Clinic at Cornell Law School. Professor Lyon received her B.A. from University of North Carolina, Chapel Hill, her M.S. from Georgetown University School of Foreign Service, and her J.D. from Georgetown University Law Centre. She was the managing editor of the Georgetown Journal of International Law and a Ford Foundation Student Fellow with the Comisión Andina de Juristas. After law school, Professor Lyon was a staff attorney for Human Rights First, a consultant at the Centre on Housing Rights and Evictions, and a Practitioner in Residence at Washington College of Law, American University. She founded the Farmworker Legal Aid Clinic and co-founded the Community Interpreter Internship Programme at Villanova Law School. She serves on the Board of Directors of the Society of American Law Teachers, Latina/o Critical Legal Theory, and Justice in Motion. Professor Lyon served on the Advisory Group of the American Bar Association Language Access Standards Project. Her scholarship focuses on migrant and farmworker rights and language access to justice. Her publications include two books, entitledGlobal issues in immigration law andWe asked for workers. We got people instead.

Antoine Pécoudis professor of sociology at the University of Paris 13 and a research associate at CERI/Sciences Po. He holds a PhD in social anthropology from the University of Oxford. Between 2003 and 2012, he worked as an international civil servant at UNESCO Headquarters in Paris. He is the author ofDepoliticising migration. Global Governance and international migration narratives (Palgrave, 2015), and the co-editor of several books and journal special issues, includingMigration without borders. Essays on the free movement of people(Berghahn, 2007),Migration and human rights. The United Nations Convention on Migrant Workers’ Rights (Cambridge University Press, 2009),Migration and climate change (Cambridge University Press, 2011),The politics of international migration management(Palgrave, 2010) andInternational organizations and the politics of migration(Routledge, 2015).

Nicola Piper, a political sociologist who holds a PhD from Sheffield University/UK, is Professor of International Migration at the University of Sydney/Australia and the Founding Director of the Sydney Asia Pacific Migration Centre. Other appointments or roles held by her include Professorial Research Fellow at the Freiburg Institute of Advanced Studies, Freiburg University/Germany; external advisor on migration research to the UN Research Institute for Social Development, Geneva, and co-founder and Vice-President of the Global Migration Policy Associates initiative. Her research focuses on international migration for work, migrants’ labour and social rights, global and regional governance of migration as well as gender and migration. Her publications include the edited volumesNew perspectives on gender and migration: livelihoods, rights, and

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entitlements(2008), South–South migration: implications for social policy and development (with Katja Hujo, 2010) and the co-authored bookCritical perspectives on global governance: rights and regulation in governing regimes(with Jean Grugel, 2007).She is co-founder and co-editor of the Routledge book seriesAsian Migration.

Roxana Sandovalgraduated magna cum laude from Universidad Rafael Landivar Law School in Guatemala in 2015, ranking 1st in her class. She was awarded the Landivar Excellence Award as the best student of 2015 class. Roxana participated in several moot court competitions and she and her teammate won the Guatemalan national moot court competitions of International Human Rights. In 2013 she participated in the Inter- American Human Rights Moot Court, where her team progressed to the semifinals, obtaining the first place among more than one hundred teams from all around the world. She has also participated as coach and judge in several human rights competitions.

Roxana has focused her practice in the area of litigation, especially in civil and commercial procedure law. She has experience in civil, mercantile and labour trials, as well as administrative proceedings in several state institutions, and actions for infringement of fundamental rights and freedoms.

She has a specialisation in Commercial and Tax Law from Universidad del Istmo Law School in Guatemala and she is currently studying for an LL.M. in International Legal Studies at New York University (NYU), focusing on international law and international human rights.

Tessa Antonia Schrempfholds a Mag.iuris degree in Austrian, International and European law as well as a Master’s Degree in Human Rights and Democratisation (E.MA) and a B.A. in International Development. She currently lives in the UK where she is cross-qualifying into English and Welsh law, whilst working for a boutique business consultancy firm to develop their Corporate Social Responsibility programme, focusing on combatting modern forms of slavery in transnational supply chains. Tessa has previously worked for an international law firm, the European Court of Human Rights, and the OSCE during her studies; and has been a researcher at the International Commission of Jurists and consultant for the Open Society Justice Initiative (Open Society Foundations) where her work focused primarily on the rule of law, judicial independence and access to justice projects. The latter is reflected also in her work as co-founder of the NGO CEHRI (Centre for the Enforcement of Human Rights International) based in Vienna, which seeks, inter alia, to open avenues for access to justice for victims of historic child abuse through strategic litigation.

Lisa Simeoneis a lecturer and doctoral candidate in anthropology at the University of Chicago, where she is completing her dissertation on the sociolegal, economic and political dimensions of migration from francophone Africa to the United States. She has more than twenty years of experience as an educator, organiser and policy specialist in the fields of civil rights and migration, having served as both a civil-society advocate and an official with the Office for Civil Rights of the US Department of

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