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

By Ryszard Cholewinski | Go to book overview

6 Who is a 'Migrant Worker' in Europe?

6.1 INTRODUCTION

The question--'who is a migrant worker?'--is given a broad interpretation by universal instruments specifically concerned with the protection of the rights of migrant workers and their families. Although some categories of migrant workers are not always covered, such as self-employed workers, students, trainees, and seafarers, what is significant about these instruments is that states parties are obliged to afford protection to all migrants within their territories regardless of ratification by the country from which these persons originate. The principle of reciprocity, however, is dominant in European arrangements for the protection of migrant workers and their families and is evidenced by the narrower personal scope of the relevant COE conventions and the free movement regimes, such as the EC. Migrant workers and their families from non-European countries and in particular from the developing world as well as illegal migrants, who are legitimate subjects of protection under the ILO and UN conventions, are especially at risk from exploitation and abuse in a continent which is becoming increasingly anxious about their presence.


6.2 COUNCIL OF EUROPE INSTRUMENTS

From the COE instruments applicable to migrant workers and their families, only the ESC and the EMW contain specific provisions on migrant workers and only the latter has a comprehensive definition of 'migrant worker'. A definition may be 'implied' from the provisions of the ESC, particularly from Article 19, but there is no definition of 'migrant worker' in the ECHR or the ECE.

With the exception of the ECHR, the other COE conventions only apply to migrant workers who are nationals of other states parties.1 From the text of Article 19 of the ESC, it is clear that illegal migrant nationals from other states

____________________
1
The application of Arts. 1 and 2 of the ECE, obliging states parties to facilitate temporary entry and prolonged or permanent residence, is specifically restricted to 'nationals of the other Parties'. Although there is no explicit provision in Art. 19 of the ESC circumscribing its operation to nationals of states parties, such an interpretation is maintained by the Committee of Independent Experts: Conclusions I, 81, cited by D. Harris, The European Social Charter ( 1984) 158. This interpretation is consistent with the remainder of the ESC. For example, para. 19 of Pt. I, the 'declaratory' parallel provision to Art. 19, limits the right of migrant workers and their families to protection and assistance to those who are 'nationals of a Contracting Party'. Furthermore, the Appendix to the ESC clearly maintains that Arts. 1 to 17 are only applicable to foreigners in so far as they are 'nationals of other Contracting Parties'. See also Harris, ibid. Finally, Art. 1(1) of the EMW defines 'migrant worker' for the purpose of the EMW as a 'national of a Contracting Party'.

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