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: +27 12 420 4948 Fax: +27 86 610 6668 [email protected] www.pulp.up.ac.za Cover: Yolanda Booyzen, Centre for Human Rights ISBN: 978-1-920538-73-6 © 2017 TABLE OF CONTENTS Acknowledgments v Contributors vii Foreword xiv François Crépeau Introduction: The continuing relevance of the UN ICRMW 1 Alan Desmond Part I: Obstacles and opportunities The politics of the UN Migrant 1 Workers Convention 24 Antoine Pécoud Making rights in times of crisis: Civil society 2 and the Migrant Workers Convention 45 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 detention 72 Mariette Grange Indirect success? The impact and use of the 4 ICRMW in other UN fora 101 Stefanie Grant & Beth Lyon Putting things into perspective: The added value 5 of the substantive provisions of the ICRMW 129 Athanasia Georgopoulou, Tessa Antonia Schrempf & Denise Venturi Working together to protect migrant workers: 6 ILO, the UN Convention and its Committee 151 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 Ecuador 176 Daniela Salazar iii Guatemala's implementation of the ICRMW: 8 Emerging efforts 204 Cathleen Caron, Kathleen Griesbach, Ursula Roldan & Roxana Sandoval Mexico and the ICRMW: Protecting women 9 migrant workers 229 Gabriela Díaz Prieto and Gretchen Kuhner The ICRMW and Sri Lanka 249 10 Piyasiri Wickramasekara Part IV: Relevance notwithstanding non-ratification The ICRMW and the US: Substantive overlap, 11 political gap 278 Beth Lyon A vexed relationship: The ICRMW vis-à-vis 12 the EU and its member states 295 Alan Desmond Bibliography 322 Index 369 iv 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 David Keane Wolfgang Benedek Jan Klabbers Laurie Berg Magdalena Kmak Marco Borraccetti Sonia Morano-Foadi Linda Bosniak Ronaldo Munck Vahan Bournazian Lori Nessel Elvira Dominguez-Redondo Jan Niessen Suzanne Egan Pia Oberoi Rolando Garcia Miron Nicola Piper Felipe Gómez Isa Bernard Ryan Mariette Grange 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 v 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 vi CONTRIBUTORS Cathleen Caron is 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 in Human Rights Brief, Clearinghouse Review Journal of Poverty Law and Policy and The Christian Science Monitor. Ryszard Cholewinski is the Senior Migration Specialist in the 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 of Addressing 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 on Migration, human rights and governance (October 2015), a joint publication of the Inter-Parliamentary Union (IPU), the ILO and vii 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 Desmond is 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 the European Journal of Migration and Law, Human Rights Law Review and the 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 Georgopoulou holds 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.