Summary: The International Convention on the Protection of Migrant Workers and Members of Their Families (ICPMW) accords basic human rights to all migrants, without distinction of any kind and throughout the entire migration process. The family unit is protected under this law. Although the USA has not ratified this UN Convention, the League has a well-articulated public policy on immigration that addresses the human rights of migrant workers and their families, as well as other non-worker migrants or refugees.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
Review by: UN Observer Jill Follows (VA); CSW63 Delegates Savanna Mapelli (PA); Kathleen Montgomery (CA); Susan Sherer (PA); Sheila Denn (NC); Anu Sahai (VA); ErinLeigh Darnley (NY); Guest Reviewer Linda Wassenich
This review of the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (ICPMW) is the seventh in a series of reviews of United Nations core human rights conventions and treaties. The reviews are written by a group of League members from across the country who are inspired by the League’s history of human rights advocacy and motivated to start a fresh dialogue about the impact these historical UN conventions have today on the League’s principle of Empowering Voters- Defending Democracy. Democratic principles respecting human rights are enshrined in United Nations Conventions.
Overview: ICPMW was adopted by the United Nations General Assembly in December 1990. The ICPMW was by no means the first instrument to address human rights for migrant workers. Indeed, the ICPMW looked to the constitutions of predecessor organizations such as the International Labour Organization, United Nations Educational, Scientific, and Cultural Organization, and the helpful experiences of UN Member States for inspiration in drafting the convention. Respectful of the need to provide migrant workers and their families, everywhere and in all stages of vulnerability, with sufficient international protection of their human rights, the United Nations drafted the ICPMW.
In the ICPMW a “migrant worker” refers to a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a state of which he or she is not a national (ICPMW, Article 2 (1)). The ICPMW does not apply to refugees unless the State Party concerned has relevant legislation or has ratified the convention (ICPMW, Article. 3 (d)).
It is generally agreed that the distinction between migrants and refugees arises from the reason that motivated the individuals to leave their country of origin. “While there is no formal legal definition, most experts agree than an international migrant is someone who changes their country of usual residence, irrespective of the reason for migration or legal status. A refugee is a person who is outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circumstances that have seriously disturbed public order and requires international protection.” https://refugeesmigrants.un.org/
The ICPMW predated the movement of large numbers of refugees into Europe and the United States. This core convention has been used to set the foundation for subsequent treaties addressing the needs of refugees. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx
Protected Human Rights: The ICPMW has 93 Articles, most of which accord the following basic human rights to all migrant workers and their families: the right to life; freedom from torture and inhuman punishment; freedom from slavery or forced compulsory labor; freedom of thought and religion; freedom of expression; freedom from unlawful interference with his/her privacy; and freedom from arbitrary deprivation of property.
The ICPMW also includes extensive provisions for the protection of human rights of migrant workers who are deprived of their liberty, detained by a State or subjected to arbitrary arrest. (ICPMW Articles 16-20)
A core tenet of all the UN human rights treaties is the fundamental belief that human rights are rights of all individuals, without distinction of any kind, such as race, sex, color, language, religion, political conviction, ethnic origin, nationality, age, economic position, property, marital status, birth, or other status. Under the ICPMW, the human rights of migrant workers and their families are protected during the entire migration process, from preparation stages, departure, transit, and the entire period of stay and remunerated activity in the State of employment. The ICPMW recognizes that the family is the natural group unit of society and the Member State to the convention (country that ratified the convention) agrees to ensure the protection of the family unit of the migrant worker. (ICPMW Article 44)
Committee on the Protection of the Rights of All Migrant Workers: The implementation of the ICPMW is monitored by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. The Committee, consisting of 14 independent experts, submits a report to the UN Secretary General every five years. The report addresses the legislative, judicial, and administrative measures taken by Member States to give effect to the Convention. The Committee also may receive and consider communications from a State Party claiming that another State Party failed to fulfill its obligations under the ICPMW. https://www.ohchr.org/EN/HRBodies/CMW/Pages/CMWIndex.aspx
On October 19, 2018, the Committee issued the following statement: “Addressing irregular migration through harsh border control measures and criminalizing irregular migrants is disproportionate to migration governance, contributes to rising intolerance and xenophobia, and the social exclusion of migrants.” The Special Rapporteur on the human rights of migrants, Mr. Felipe Gonzalez Morales, added that “States have a duty to provide all migrants with access to justice to obtain redress for any discriminatory treatment or human rights violations that they experience.”
Various other Committees, respecting the work of other human rights conventions, weighed in on the trauma of separating families. Ms. Renate Winter, the Chair of the Committee on the Rights of the Child, stated “The policy of some governments to separate children from their parents solely based on their immigration status and as a deterrent to irregular migration is both shocking and violates the human rights of the children with long-lasting effects on the health of the child.” https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23764&LangID=E
Ms. Dalia Leinarte, Chair of the Committee on the Elimination of Discrimination Against Women, wrote “It is unthinkable that women as mothers should be subjected to this excruciating ordeal of being separated from their children, particularly girls, who may fall prey to serious human rights violations.” https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23764&LangID=E
The United States Has Not Ratified the ICPMW: The ICPMW has no binding legal authority in the United States. The United States is not alone in its failure to ratify the convention. Indeed, more than 130 of the 193 UN Member States (countries) have not ratified the ICPMW. (As of September 2019, only 55 countries had ratified this convention.) Nonetheless, the ICPMW serves as a stark reminder of the universality of human rights and the need to establish norms of human decency for those people trapped in seriously vulnerable situations.
Synergy with the LWV: Although the United States has not ratified the ICPMW, the League of Women Voters has a well-articulated policy position on Immigration (Impact on Issues 2018-2020, p.81) that addresses the human rights of migrant workers and their families, as well as other non-worker migrants or refugees. The League of Women Voters believes that immigration policies should:
* promote reunification of immediate families; meet the economic, business, and employment needs of the United States; and be responsive to those facing political persecution or humanitarian crises;
* provide an efficient, expeditious system (with minimal or no backlogs) for legal entry of immigrants into the United States and support provisions for unauthorized immigrants already in the country to earn legal status;
* support due process for all persons, including the right to a fair hearing, right to counsel, right of appeal, and right to humane treatment
* make provisions for qualified persons to enter the United States on student visas.
(Statement of Position on Immigration, as announced by the National Board, April 2008.)
Synergy with the UN Sustainable Development Goals: The United Nations Department of Economic and Social Affairs (DESA) continues to revise its plan of action for realizing the Sustainable Development Goals (SDG) that concern migrants and migration. The overwhelming majority of SDGs set targets intended to address the human rights of migrants, refugees and displaced persons. By way of limited example only, the following rationale has been given by DESA for addressing some migrants’ needs for:
Ending Poverty (SDG #1): Denial of access to economic resources, notably land, is an acknowledged driver of migration;
Ending Hunger (SDG#2): Increasing the productivity of small-scale food producers, particularly women, is crucial to permitting people to stay on the land and continue farming rather than being compelled to migrate;
Ensuring Health (SDG#3): Migrants face risks of exposure to epidemics and communicable diseases and lack access to preventive treatment;
Inclusive Quality Education (SDG #4): Lack of access to quality education in the home country is a major driver of migration;
Achieving Gender Equality (SDG#5): 48% of all migrants are women and girls, many of whom migrate to escape violence or seek social protection coverage for domestic work;
Securing Decent Work (SDG#8): High levels of youth unemployment in the country of origin drive migration;
Sustainable Environment (SDG#13): The consequences of climate change are foreseen as a major driver of displacement of people; (SDG#14): Sea level rise will increase pressure for human displacement; (SDG#15): Loss of forests, land degradation and loss of biodiversity increase migration;
Peaceful and Inclusive Societies (SDG# 16): Violence, persecution, and warfare are major drivers of migration; Unaccompanied migrant children are especially subject to abuse; Detention of migrant and refugee children does not comport with the international human rights standard for compelling processes that are in the best-interests-of-the-child;
International Cooperation (SDG#17): Countries must exchange data on migration and enact regulations comporting with international cooperation.
See Version 3 (February 2016) of “The Sustainable Development Goals and Migrants/Migration” at https://www.un.org/en/development/desa/population/migration/events/coordination/14/documents/backgrounddocs/GMPA_14CM.pdf
GLOBAL COMPACT FOR SAFE, ORDERLY, and REGULAR MIGRATION (2018) An intergovernmental negotiated agreement, prepared under the auspices of the UN https://refugeesmigrants.un.org/migration-compact
GLOBAL COMPACT ON REFUGEES https://www.unhcr.org/en-us/the-global-compact-on-refugees.html
Brookings Institute: The Global Compact on Migration: Dead on Arrival? https://www.brookings.edu/blog/up-front/2018/12/12/the-global-compact-on-migration-dead-on-arrival/