CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE HUMAN RIGHTS OF MIGRANT WORKERS IN THE CONTEXT … – General instruments: the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). – Conventions concerned with the protection of persons against specific forms of ill- treatment: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC), the International Convention on the Protection of the Rights of AllMigrantWorkers andMembers of their Families (CMW), the International Convention for the Protection of All Persons from Enforced Disappearance, and the Convention of the Rights of Persons with Disabilities. In the process of treaty-making, governments have jointly defined the rights which should be protected, and created mechanisms for their implementation. These treaties have been accepted in varying degrees by all United Nations member states as legal obligations to which their national legislation must conform. The instruments identified above protect all human beings, regardless of their nationality. Thus, migrant workers, though non-nationals, are generally entitled to the same human rights as local citizens. The only qualifications relate to a small number of political rights. The fundamental principle of treaty regime remains, however, that of universality. “Everyone” is protected, and human rights are linked to a common humanity, not to citizenship. A central principle is non-discrimination regarding the application of human rights to foreigners. All discrimination is illegal, irrespective of the purported ground upon which it based. This does not mean that every distinction in the comparative treatment imposed by a state on an individual or a group of individuals constitutes discrimination. States may limit free movement and political participation, but they must not draw distinctions between citizens and non-citizens in relation to fundamental rights. The distinction of treatment between citizens and non-citizens is strictly limited, and it depends on the international instrument involved. However, no distinction in comparative treatment is acceptable under the ICERD, CAT, CEDAW and CRC. In addition, the legality of a distinction in treatment may depend on the migrant`s migration status – regular or irregular. States have recognized that some individuals are particularly vulnerable. Although they enjoy the same universal protection as “everyone”, they also have special protection needs. In this regard, special protection is given to children, women, refugees and migrants. States have the sovereign power to determine upon the entry, residence and expulsion of those who migrate to their territory, but once the individual (non-national) has entered the country, the national government is responsible for the protection of his or her rights. It should be noted that human rights protection for migrant workers remains much less developed than the international refugee protection system. There is no single, comprehensive “regime” for the protection of migrant rights. In contrast to refugees, whose rights are stipulated in one treaty, there is not yet a legal text for migrants which is accepted as legally binding and authoritative by a majority of states. Furthermore, no international institution has been created or attributed with a protection mandate comparable to that of the United Nations High Commissioner for Refugees.

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