Committee for the Protection of the Rights of All Migrant Workers and Members of Their Families

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Committee on Migrant Workers
Committee on Migrant Workers
 
Organization type Committee
Abbreviation CMW
management Ahmadou TALL
Founded 1 July 2003
Headquarters Geneva
Upper organization UN High Commissioner for Human Rights
 

The Committee on Migrant Workers , CMW ( Committee on Migrant Workers ) is a control body set up by the UN , which monitors the implementation of and compliance with the UN Migrant Workers Convention by the contracting states and can make recommendations on how they can improve the implementation of the treaty.

The CMW consists of 14 experts and meets twice a year in Geneva.

tasks and activities

The creation of the committee and its tasks are set out in Part 4 of the WAK; its activities relate exclusively to states that ratified the Migrant Workers Convention (Art. 87 WAK); it also depends on the declarations and reservations the states made when the treaty was concluded (Art. 91 WAK).

Its main activity is the examination of state reports (Art. 74 WAK). According to the WAK, it is also responsible for examining state complaints (Art. 76 WAK) and individual complaints (Art. 77 WAK) as soon as 10 states have agreed to these complaint procedures, which has not yet taken place (as of March 2019).

The WAK does not provide for an investigation procedure in the event of serious or systematic breaches of contract by a state, so such investigations do not fall within the competence of the committee.

Contractual basis

The Migrant Workers Convention is a human rights agreement created by the UN , which was passed by the UN General Assembly on December 18, 1990 and has been in force since July 1, 2003 (Art. 87, Paragraph 1 WAK). In the WAK, the rights of migrant workers, seasonal and casual workers and their family members are defined. It does not contain any provisions that restrict the right of states to decide on immigration.

The WAK largely overlaps with the civil pact and the anti-racism convention, whereby the agreement that is more favorable for those affected applies (Art. 81 WAK, Art. 53 ECHR, Art. 46 IPBPR, Art. 24 IPWKS).

There is a risk of confusion with the UN migration pact, the committee is not responsible for compliance with it, as it is a different agreement.

Ratifications

Neither Germany, Liechtenstein, Austria nor Switzerland have ratified the WAK, so far 34 states have acceded to the agreement (as of March 2019).

Rules of Procedure

To carry out its tasks defined in PART VII of the WAK, the committee created rules of procedure , in which the organization, procedures and responsibilities of the committee were regulated. It consists of 3 parts, Part I. General Provisions , Part II. Tasks of the Committee and Part III Interpretation and Changes . In the appendix the addition that he can request further reports in the event of violation of Art. 9 WAK The Right to Life of Migrant Workers . The Ordinance contains 34 provisions called rules and is divided into 15 chapters.

The relevant chapters of the Rules of Procedure are:

  • Cape. 12 The reporting procedure according to Art. 73 f. WAK
  • Cape. 13 State complaints according to Art. 76 WAK
  • Cape. 14 Procedure for individual complaints according to Art. 77 WAK

Examination of the state reports

All contracting states are obliged to submit regular state reports to the committee in which they have to explain how they have implemented the UN Migrant Workers Convention (Art. 73 WAK). A year after the accession to the Convention, States Parties must submit a report on the implementation of the Convention (English. Initial report ) and then at regular intervals of five years periodic reports (Engl. Periodical reports ) on progress made. The procedure for examining the state reports is described in Chap. 12 of the Rules of Procedure.

Due to the overloading of the committees, the UN General Assembly made a simplified reporting procedure possible and limited the scope for initial reports to 31,800 and that for periodic reports to 21,200 words. If no significant deficiencies were found during the last examination of a state report, the committee can since then carry out the simplified procedure in which it sends the contracting states a list of issues prior to reporting (LOIPR) and their answers (Engl. Replies to LOIs ) then apply as periodic state reports.

At the state reporting procedure also can non-governmental organizations (NGOs), national human rights organizations (NHRIs), UN agencies (74 para. 4 CTE Art.) Actively participate and submit parallel reports to the inadequate implementation of the CTE show by States Parties. In doing so, gaps or errors in the state report can be clarified and deficits pointed out. Such parallel reports can be very informative for the committee.

The committee then examines the state reports at a public hearing at which they can comment on the questions of the CMW. The committee endeavors to establish through a constructive dialogue whether the state is applying the CEC and how it could improve its implementation. NGOs, NHRIs and other interested persons can only take part in the public meetings with observation, but approval is required (accreditation).

Since the states sometimes do not submit any reports at all, the committee issued Rule 31bis as a supplement to the procedural rules, according to which, if the state report is missing, it will check the implementation of the WAK on the basis of other information and then send them the test result with the recommendations.

If, during the review of the report, the committee finds that the state has not fulfilled its contractual obligations, it can make suggestions and make general recommendations on how the state could improve the implementation of the CEC. These are called “ Concluding Observations ” (Art. 74 WAK).

These recommendations of the CMW are not legally binding, the implementation cannot be enforced and only a follow-up procedure is provided in which a reporter checks the implementation of the recommendations by the state and, if necessary, discusses them again in the next state report becomes. There are no sanctions against the state concerned.

Since some of the states are not fulfilling their contractual obligations and are not submitting any reports or submitting their reports late, the UN High Commissioner for Human Rights (UNHCHR) created a list in which the states are listed which all submit their reports on time (e.g. Italy, Switzerland etc.) and a list of the countries that are partially behind schedule (e.g. Germany, Liechtenstein, Austria, the Vatican etc.).

State complaints

According to Article 76 of the WAK, the Committee is empowered to examine state complaints if a contracting state asserts that another contracting state is not fulfilling its obligations under the WAK. The condition is that both states expressly recognized the relevant competence of the committee when ratifying the treaty (Art. 76 para. 1 WAK). The procedure for state complaints is defined in Chapter 13 of the Rules of Procedure.

The task of the committee is to settle the dispute and find an amicable settlement. The state complaints procedure is concluded with a report and recommendations by the committee. If no amicable agreement can be reached, the parties can apply to the International Court of Justice within six months , provided neither of the two states made a reservation in this regard when ratifying the treaty (Art. 92 (1) WAK). This state complaint provision comes into force when ten contracting states have made such declarations (Art. 76, Paragraph 2 of the WAK).

Only 4 countries made such a declaration: Ecuador; El Salvador; Guatemala; Guinea-Bissau , which means that this provision is not yet in force. Of these four states, El Salvador and Guinea-Bissau have already made a precautionary reservation to the International Court of Justice and immediately rejected its jurisdiction (as of February 2019).

In the event of a dispute, however, the states also have the option of settling disputes using other international procedures (Art. 78 WAK). In a dispute between El Salvador and Guatemala, this could be the Inter-American Human Rights Commission or the Inter-American Court of Justice, depending on the subject of the dispute .

Individual complaints

The individual complaints are euphemistically referred to as communications. If a state expressly consented to the individual complaints procedure when the contract was concluded (Art. 77 WAK), the committee can also examine individual complaints against this contracting state (Chapter 14 Rules of Procedure), provided that the contracting state expressly consented to the individual complaints procedure when the contract was concluded.

The complaint must be submitted to the committee in writing, it must not be anonymous and must be written in one of the committee's working languages; for this the national legal process must be unsuccessful. The same complaint may not be submitted to another international body (e.g. the ECHR , another UN treaty body , etc.). The WAK does not provide for a deadline for a complaint, but a complaint is usually no longer accepted after five years ( ratione temporis ). The complaint can also be rejected on the grounds that the committee is not responsible because the alleged violation is not contained in the WAK but, for example, in the UN migration pact ( ratione materiae ) or it would constitute an abuse of the right to complain.

Complaints submitted to the UN are usually first formally examined by the UNHCHR Secretariat . Then the complaint is either rejected or registered and forwarded to the relevant committee. No statistics are kept on the number of complaints already rejected by the Secretariat.

If the complaint has been rejected by the secretariat, the complainant is informed of this in a standard letter. The reason given is usually insufficient justification , although the CRC would have an obligation to clarify. If the complaint has been accepted, it will be forwarded to the state concerned for comments, whereupon the state can raise the objection of inadmissibility. The committees try to reach an amicable agreement, if the contracting state agrees, this is recorded in a decision ( discontinuance decision ) and the case is settled.

Only afterwards does the committee examine the material admissibility of the complaint. If he declares the complaint to be inadmissible, then - in contrast to the secretariat - he justifies his decision of the inadmissibility. If it was not rejected, the committee will deal with the content of the complaint. If the committee found a breach of contract, it issues proposals and recommendations to the state on how to remedy this (Art. 77 (7) WAK).

The recommendations are not legally binding, their implementation cannot be enforced, only a follow-up procedure is provided in which the implementation of the recommendations is checked by the state and, if necessary, discussed in the next state reporting process. Sanctions are not provided against fallible states.

This provision on individual complaints does not come into force until ten contracting states have made such declarations (Art. 77 Para. 8 WAK). So far 5 countries have made such a declaration: Ecuador; El Salvador; Guatemala; Mexico; Uruguay , which means that this provision is not yet in force (as of February 2019).

Complaints to the CMW and ECHR

A complaint, for example because of a violation of Art. 18 WAK, Art. 14 IPBPR or Art. 6 ECHR right to a fair trial, may not be submitted to the committee and the ECHR at the same time , since the facts are the same ( same matter ). However, it is permissible to the committee a complaint of Art. 21 TEC catchment of identity documents (there are only WAK) and the ECHR a complaint for violation of Art. 12 of the ECHR right to marry submit, as there is no overlap, but various breaches of contract by concerns the same state.

There are complaints that were first submitted to the ECHR, but were not accepted by it with the standard reasoning: the complaint does not appear to violate the rights and freedoms guaranteed in the Convention (ECHR) or its additional protocols . The complaint, which was then submitted to a UN committee, was rejected by the latter on the grounds that the complaint had allegedly been examined by the ECHR, although the ECHR did not examine the substance of the complaint but did not receive it.

In accordance with decision no. 577/2013 of the CAT committee of February 9, 2016, within the meaning of NB c. Russia for torture. At the same time, the complainant had submitted an identical complaint to the ECHR (No. 33772/13), which is why the CAT Committee rejected the complaint (see CAT decision RZ 8.2). In the judgment database HUDOC of the ECHR, however, there is no judgment with the No. 33772/13, as the complaint was refused by the law firm and struck from the register - and therefore not examined by the ECHR.

In contrast to the UN committees, the ECHR rejects individual complaints, which essentially correspond to a complaint previously examined by the ECHR (Art. 35 (2) lit b ECHR). The UN committees accept such identical complaints until the states change their laws and case law.

General remarks

The interpretation and clarification of certain provisions in the CTE, the Committee published General remarks (English. General comments ). They are intended to dispel misunderstandings and to assist the contracting states in fulfilling their obligations.

So far, the CMW has drawn up 4 general comments to specify the individual contractual rights: General Comment No. 1 from 2011 deals with the rights of foreign domestic workers, No. 2 from 2013 deals with the rights of Sans Papiers. Comments Nos. 3 and 4 from 2017 were written together with the Children's Rights Committee and deal with the rights of children in the context of international migration and the obligations of states with regard to the human rights of children in the country of origin, transit and destination as well as in the Return.

Members of the CMW

The committee consists of independent experts who began their work in March 2004 after the Convention came into force. The number of committee members was increased to 14 in 2010 from the initial 10 members.

Surname country until on
Mr. Alvaro BOTERO NAVARRO ColombiaColombia Colombia 12/31/21
Ms. Jasminka DZUMHUR Bosnia and HerzegovinaBosnia and Herzegovina Bosnia and Herzegovina 12/31/19
Mr. Ahmed Hassan EL-BORAI EgyptEgypt Egypt 12/31/19
Mr. Mohammed CHAREF MoroccoMorocco Morocco 12/31/19
Mr. First FRASHERI AlbaniaAlbania Albania 12/31/21
Mr. Md. Shahidul HAQUE BangladeshBangladesh Bangladesh 12/31/21
Mr. Prasad KARIYAWASAM Sri LankaSri Lanka Sri Lanka 12/31/21
Ms. Maria LANDAZURI DE MORA EcuadorEcuador Ecuador 12/31/19
Mr. Marco NUÑEZ-MELGAR MAGUIÑA PeruPeru Peru 12/31/19
Mr. Mamane OUMARIA NigerNiger Niger 12/31/21
Mr. Lazhar SOUALEM AlgeriaAlgeria Algeria 12/31/19
Mr. Azad TAGHI-ZADA AzerbaijanAzerbaijan Azerbaijan 12/31/21
Mr. Ahmadou TALL SenegalSenegal Senegal 12/31/21
Mr. Can ÜNVER TurkeyTurkey Turkey 12/31/19

Additional information

literature

See also

Web links

Individual evidence

  1. a b The abbreviation CMW is used in all other official languages ​​of the committee, apart from Russian, including Arabic and Chinese, also by the German Foreign Office
  2. On July 1st, 2003 the contract came into force, see Art. 87 Para. The first election took place after 6 months, Art. 72 Para. 3 WAK
  3. ^ Committee on Migrant Workers. Website of the CMW committee with detailed information. Ed: CMW , accessed on March 7, 2019 (English).
  4. Human Rights Bodies. UN human rights organs. Published by: UN High Commissioner for Human Rights UNHCHR, accessed on March 7, 2019 (English).
  5. a b c d e f Migrant Workers Convention (WAK). (pdf) Translation in German. Published by: German Institute for Human Rights , accessed on March 7, 2019 .
  6. ^ Committee for the Protection of All Migrant Workers. In: Migrant Workers Convention. Published by Praetor Intermedia UG , accessed on March 7, 2019 .
  7. ^ Committee for the Protection of the Rights of All Migrant Workers. Published by Humanrights.ch , accessed on March 7, 2019 .
  8. ^ Technical Committee for Migrant Workers. In: Migrant Workers Convention. Published by: German Institute for Human Rights , accessed on March 7, 2019 .
  9. ^ A b Membership of the Committee. (en) Members of the CMW. Ed: CMW , accessed March 7, 2019 .
  10. ^ A b Monitoring on Migrant Workers. Ed: CMW , accessed on March 7, 2019 (English).
  11. The state is only obliged under international law to comply with the treaty after ratification. In Germany, the dualistic system applies, in which the contract must first be transformed into national law before it becomes justiciable. In Lichtenstein, Austria and Switzerland the monistic system applies, according to which the treaty becomes applicable immediately upon ratification.
  12. According to Art. 2 WVK, a “reservation” is a unilateral declaration made by a state when it joins a treaty, by means of which the state aims to exclude or change the legal effect of individual treaty provisions in this state
  13. a b c d e Status of Treaties. Ratification status, reservations and declarations on the migrant workers' convention. In: Treaty collection of the UN UNTC. Retrieved March 7, 2019 .
  14. a b Inter-State Complaints. State complaints. In: Treaty Bodies Petitions. Published by UNHCHR , accessed on March 7, 2019 (English).
  15. a b Individual Communications. Individual complaints to a UN treaty body. In: Treaty Bodies Petitions. Published by UNHCHR , accessed on March 7, 2019 (English).
  16. Inquiries. Investigation procedure for systemic breaches of contract. In: Treaty Bodies Petitions. Published by UNHCHR , accessed on March 7, 2019 (English).
  17. Human rights treaty . Published by: German Institute for Human Rights , accessed on March 7, 2019 .
  18. UN Resolution A / RES / 45/158 on the WAK. (PDF) adopted by the GA on December 18, 1990 in the 45th session. Retrieved March 7, 2019 .
  19. a b c d Compilation of Rules of Procedure. Rules of Procedure of the CMW. Ed: CMW , accessed on March 7, 2019 (English). Version: HRI / GEN / 3 / Rev.1 / Add.1 from May 7, 2004
  20. Report mode. In: The Migrant Workers Convention. Published by: German Institute for Human Rights , accessed on March 7, 2019 .
  21. a b The Migrant Workers Convention. Published by Humanrights.ch , accessed on March 7, 2019 .
  22. UN Res. 68/268 Strengthening and enhancing the effective functioning of the human rights treaty body system. (PDF) Ed .: General Assembly, April 21, 2014, accessed on March 7, 2019 (English).
  23. UN Res. 68/268 Strengthening and improving the effective functioning of the system of human rights treaty bodies. (PDF) In: Refworld.org. Published by: General Assembly, April 21, 2014, accessed on March 7, 2019 .
  24. a b Simplified Reporting procedure. States with the simplified state reporting procedure. Ed: CMW, accessed on March 7, 2019 (English).
  25. Lists of issues (LOIs & LOIPR). Ed: CMW , accessed on March 7, 2019 (English).
  26. Replies to LOIs. Answering the questions of the CMW - the new periodical state reports. Ed: CMW, April 21, 2014, accessed March 7, 2019 (English).
  27. ^ Statement by the CMW on cooperation with Civil Society Organizations. (pdf) Declaration by the Committee on Cooperation with NGOs. Ed: CMW , accessed on March 7, 2019 (English).
  28. ^ Info from Civil Society Organizations. Ed: CMW , accessed on March 7, 2019 (English).
  29. ^ Statement by the CMW on cooperation with National Human Rights Institutions. (pdf) Declaration of the Committee on Cooperation with NHRIs. Ed: CMW , accessed on March 7, 2019 (English).
  30. Info from NHRIs. Ed: CMW , accessed on March 7, 2019 (English).
  31. ^ Guidelines for submission of reports by United Nations specialized agencies and other bodies. (pdf) Guideline of the Committee for Cooperation with Specialized Agencies of the UN. Ed: CMW , accessed on March 7, 2019 (English).
  32. Admission to negotiations with the committee. Ed: CMW , accessed on March 7, 2019 (English).
  33. Rules 31 bis. Rule 31bis as a supplement to the Rules of Procedure. Ed: CMW , accessed on March 7, 2019 (English).
  34. ^ Consideration of States parties in the absence of a report. (Word) Examination without state reports. Ed: CMW , accessed on March 7, 2019 (English).
  35. Concluding observations. Ed: CMW , accessed on March 7, 2019 (English).
  36. a b Legal instruments. (pdf) In: ABC of Human Rights. Published by: Federal Department of Foreign Affairs, FDFA, p. 10 , accessed on March 7, 2019 .
  37. a b Follow-up to concluding observations procedure. Follow-up procedure. Ed: CMW , accessed on March 7, 2019 (English).
  38. UN High Commissioner for Human Rights. Published by: German Institute for Human Rights , accessed on March 7, 2019 .
  39. ^ List of States parties without overdue reports - Late and non-reporting States. Published by UNHCHR , accessed on March 7, 2019 (English).
  40. Individual Complaints. In: Migrant Workers Convention. Published by: German Institute for Human Rights , accessed on March 7, 2019 .
  41. ^ Procedure under the International Convention on the Migrant Workers (CMW). Individual complaint procedure at the CMW. In: Treaty Bodies Petitions. Published by UNHCHR , accessed on March 7, 2019 (English).
  42. Decision No. 577/2013 of the CAT iS NB c. Russia for torture. Retrieved March 7, 2019 .
  43. General comments. General remarks. Ed: CMW , accessed on March 7, 2019 (English).