Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment

By Ryszard Cholewinski | Go to book overview

4 The United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

4.1 INTRODUCTION

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) was adopted by the UN General Assembly without a vote on 18 December 1990.1 It is said to be the culmination of [an] evolutionary process' which has seen the development of universal standards protecting the rights of non-nationals.2 This process began, as examined in Chapter 2, with the endorsement of international human rights standards applicable to all human beings, the adoption of the UDHR and its 'codification' in the two UN Covenants. As observed in the previous chapter, the adoption by the ILO of international labour standards pertaining specifically to migrant workers, particularly Convention No. 143 of 1975, was a further step in this process.

The question which begs an answer is whether the ICMW is indeed the culmination of this 'evolutionary process', or whether it falls short of affording adequate protection for migrant workers and their families. In gauging the extent to which it safeguards the economic, social, cultural, political, and residence rights of migrants, this chapter also seeks to answer the above question by comparing the standards in the ICMW with those of other international instruments examined earlier. References are also made, where appropriate, to some of the European instruments which are the focus of the European case study. Because the ICMW is only a recent addition to the plethora of international human rights instruments, any attempt to provide an authoritative interpretation of its provisions risks being rather a speculative exercise. Consequently, by resorting extensively to the travaux préparatoires, some of this speculation concerning the interpretation of the ICMW may be avoided.

The text of the ICMW and the travaux préparatoires reflect numerous tensions and compromises. In their attempt to cover, almost without exception, all the human rights of all migrant workers and their families, the drafters of the

____________________
1
GA Res. 45/158. The text of the ICMW can be found in ( 1991) 30 ILM 1517 and in I. Brownlie, (ed.), Basic Documents on Human Rights, 3rd edn. ( 1992) 203.
2
See A. Helton, "'The New Convention from the Perspective of a Country of Employment: The US Case'" ( 1991) 25 IMR848, 849.

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