By Fraser Barnstaple
One international access to justice issue relates to the protection of migrant workers. Two key documents which contain important provisions for migrant workers are the Migrant Workers Convention (ICRMW) and Global Compact for Migration (GCM).
Migrant workers are, by nature, vulnerable within society. They lack the support, rights and familiarity which citizens enjoy, and the international community has not done enough to address these issues. The ICRMW and GCM are supposed to protect the interests of migrant workers. This post will explain why despite the value brought by the documents, they fail to provide effective protection for migrant workers. Consequentially, and the key point in relation to access to justice, is that migrant workers do not have effective means of shielding themselves from the injustices they face. Another purpose of this blog post is to draw attention to the lack of protection for migrant workers which increases the potential for injustice, as they remain exposed to exploitation in various ways, such as by discrimination and inequality that results in them obtaining a reduced level of rights and power within society.
What is the ICRMW and GCM?
The ICRMW ‘represents the most comprehensive treaty specifically devoted to the rights of migrant workers’. It was adopted in 1990 (but was not in force until 2003 due to limited ratification – discussed below) and its compliance is overseen by the Committee on Migrant Workers (CMW). The GCM is a more recent development and describes itself as a ‘non-legally binding cooperative framework’ with the purpose of making ‘an important contribution to enhancing cooperation on migration’ (Para 15). It mostly reaffirms and restates important objectives for migrants such as the prohibition on slavery and forced labour (Art 11), the right to liberty and security of person (Art 16) and equality with nationals’ employment payment and other working conditions (Art 25).
Why are these important? Migrant workers are often exploited for cheap, unstable labour under poor or sometimes extremely dire, working conditions. More generally, migrants are vulnerable to abuses and exploitation and need protection via an effective system of international human rights. These rights, and all rights of migrant workers, are important because 169m out of 272m international migrants in 2021 were migrant workers. Therefore, the ICRMW and GCM are arguably more relevant now than they have ever been.
Why are the ICRMW and GCM inadequate?
The ICRMW is significantly flawed. Currently, just 55 nations have ratified it. This is a real shame because the rights contained in the ICRMW have the potential to provide access to justice for migrant workers. Low ratification could be for various reasons, the primary being, as Alan Desmond (a prominent academic in Immigration and Refugee Law) notes, a lack of political will. Another reason, linked to the previous, is that Part III ICRMW provides rights for all migrants- both legal and illegal, which many states are reluctant to recognise. Furthermore, most ratifying nations are from the ‘global south’. The world’s most developed countries, including all EU-member states, have not ratified. These nations have the best capability to implement ICRMW and provide expertise on the implementation and governance of the treaty. Furthermore, these developed countries are primarily countries of destination. These factors greatly weaken the protection provided by the ICRMW, leaving its benefits relatively obsolete in many states. This, in turn, has affected migrant workers’ access to justice because the benefits of the treaty, such as the rights mentioned earlier on in the post including the labour rights and other rights of freedom, cannot be enjoyed in countries such as the UK and the USA, where a vast number of migrant workers reside. It also calls into question the commitment amongst Western states to international human rights and values.
Additionally, the CMW is ineffective. Vincent Chetail, a leading academic describes it as ‘the poor cousin of the UN treaty bodies’. It oversees state compliance with the ICRMW through various functions, the most important being concluding observations on states’ reports. However, these are merely recommendations and are not binding. Additionally, Articles 76 and 77 ICRMW provides important inter-state and individual complaint mechanisms. However, neither has come into force because the committee’s competence to do these tasks has not been recognised by enough states. The CMW is therefore deprived of the ability to make some important interventions, making it a weak and severely constrained committee. This consequentially weakens the effectiveness of the ICRMW because its implementation mechanism is flawed, meaning the rights designed to protect migrant workers remain on paper and do not facilitate justice or prevent injustice in reality.
It is undeniable that the ICRMW has been inadequate. However, there is optimism that the ICRMW can be effective in the future. It can be used as a lobbying tool and benchmark to critically assess current migration policies and encourage higher minimum standards by ‘contextualising a broad range of existing [HRs] to the specific situation of migrant workers’. This concentration on migrant workers’ rights can therefore be very valuable. Therefore, the value of the ICRMW may be more in sentiment than in substance. Additionally, south-south migration now exceeds south-north migration. Therefore, the ICRMW may gain greater significance given the ‘global south’ ratifying countries are experiencing increased migration.
These are some positive signs, suggesting the ICRMW is not completely redundant. However, it is not close to providing the protection required for workers as it stands. Simply, without the ratifications, it will continue to have limited significance.
Fortunately, the GCM has various benefits over the ICRMW. Unlike the ICRMW, it does not suffer from a lack of ratification or awareness. It gained 152 votes in favour before being adopted by the UN and is far more visible. Although it may be non-binding, the weapon of naming and shaming can be useful, particularly given the strong public awareness of the GCM. This provides added motivation for states to comply with the GCM to avoid embarrassment/criticism amongst the international community.
Moreover, the GCM fulfils its role of reaffirming and restating human rights objectives through its guiding objectives such as ensuring migrants have proof of identity and adequate documentation, and facilitating ethical recruitment and decent working conditions. This is valuable because the strong visibility of the GCM means objectives it restates can benefit lesser-known treaties (e.g., ICRMW). The GCM comprehensively covers 7 major issues, including the right to family life and non-discrimination. The nature of the GCM as a new document means it had the benefit of being flexible to recent issues and benefitted from hindsight over other documents’ flaws. Therefore, it does fill in some of the gaps left by the ICRMW and compensates for a few of its shortcomings.
The main drawback of the GCM is a consequence of being a soft law document. Being soft law was arguably necessary to gain ratifications and avoid the difficulties experienced by the ICRMW, but it consequently has a weak review and implementation mechanism. This, coupled with the fact the GCM primarily simply restates and reaffirms rights, makes it hard to see how it progresses migrant rights at all. Consequentially, for all the rights it reaffirms, the GCM does not, on a closer examination, improve access to justice for migrant workers.
Furthermore, the GCM omits a cardinal international law principle – the right to leave. This could be seen as ‘instituting a hierarchy, with the rules included in the GCM enjoying global support and those excluded no longer finding favour in the post-2015 regime’. One reason for this may be because the roots of the GCM lie in the Sustainable Development Agenda. One key part of the agenda’s mission was to reduce the ‘brain-drain’ problem for poorer states. Therefore, it is likely that the right to leave was omitted in order to avoid impeding this goal. It is difficult to see another justification for leaving the principle out, and if this was the case, the GCM regrettably sacrificed international law consistency for the benefit of reducing the ‘brain-drain’.
Additionally, GCM Part 6 can be criticised for providing rights for only those with formal employment contracts, thus excluding those in irregular work. This is inconsistent with international human rights standards (e.g., Part III ICRMW (above)) and risks undermining protection for migrants. This is particularly important because not only are migrant workers more likely to be given informal contracts due to their lower rights status, but it also exacerbates this issue because it makes it easier for employees to hire migrant workers on an informal or irregular basis, making them less likely to gain the benefits of labour rights as well.
It should be noted that the ‘legal and policy developments and academic commentary [regarding the GCM] are… all still in their infancy’. Perhaps it is too early to condemn the GCM. However, it is clear that deep-rooted weaknesses exist, potentially hampering the document’s ability to ever truly provide a strong and complete mechanism of rights for migrant workers. The test of time will reveal how effective this document can be for protecting the rights of migrant workers.
Migrant workers remain woefully unprotected, despite the ICRMW and recent introduction of the GCM. The lack of meaningful ratifications of the ICRMW in addition to the weakness of the CMW is particularly damaging. However, there is still hope, particularly for the GCM. Its reaffirmation of key principles and high visibility could see the GCM fill in the gaps of the ICRMW. However, its position as a soft law document reduces its ability to be a powerful advocate for migrant workers. Unfortunately, the failings of these documents leave migrant workers exposed to the inevitable exploitation from employees, governments, authorities and other institutions. The international community, therefore, has much work to do before it can be said migrant workers possess adequate protection.