CYIL vol. 10 (2019)

DIANA CUCOS CYIL 10 ȍ2019Ȏ a majority of states through the “core” human rights treaties. The Part III of the Convention contains the fundamental civil and political rights, mirroring the ICCPR. These rights apply to “all” migrant workers, and, thus, includes irregular migrants. The equality of treatment applies also between all migrant workers and nationals in respect of basic economic and social rights, including remuneration, work and employment conditions, social security, emergency medical care, and access to education for the children of migrant workers. Cultural rights are also protected, migrants having the right to join any trade union. The CMW underlines that these rights apply to “all” migrant workers, irrespective of their legal status, by obliging states parties to ensure that “migrant workers are not deprived of any rights … by reason of any irregularity in their stay or employment”. 28 In addition, the Convention offers supplementary rights to regular migrant workers and to their families in some central areas, including access to educational institutions and services, housing, social and health services, and participation in cultural life (Part IV). They have also a right to family reunification. Although few European states have yet ratified the CMW, nor has any state whose national labour market is composed of significant number of migrants, it is important to recognize that this does not affect the existence of their obligation to protect migrant workers, since the Convention essentially mirrors rights already protected in other instruments which already bind these states. TheConventionestablishesaCommitteeonMigrantWorkers 29 tooverseeitsimplementation by its state parties. It examines reports from states and, under certain circumstances, considers individual complaints or communications from individuals and other states alleging violations. C. Trafficking and Smuggling The human rights and law-enforcement concerns 30 associated with smuggling and trafficking have propelled this topic up the international policy agenda. In 2000, two new Protocols to the United Nations Convention against Transnational Organized Crime were drafted, dealing with trafficking and smuggling – the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Crime (2001), and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2001). Both Protocols, known also as “Palermo Protocols”, define trafficking in people and migrant smuggling as international crimes, which must be distinguished from one another: the one is defined as a crime against an individual and the other as a crime against the state. They both involve the movement of people, but there are three important differences: location, consent and exploitation. The fundamental elements of trafficking are the limitation of free movement, the presence of exploitation and the fact of coercion or force. The offence is defined as: “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve

28 Article 25 (3). 29 Committee on Migrant Workers is the UN body of independent experts. 30 Organized crime, the war against terror, and irregular migration.

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