REGINE Regularisations in Europe Final Report - European ...

6 International organisations
6.1 The scope of international law
6.1.1 UN Conventions
Despite the sovereign right of each state to regulate immigration of non-citizens into its territory, the
provisions of ‘customary international law’ are binding even on non-signatories: such law pertaining
to migrants includes the Universal Declaration on Human Rights, the International Covenant on Civil
and Political Rights, the International Covenant on Economic, Cultural and Social Rights, and the
Optional Protocol to the International Covenant on Civil and Political Rights. However, these
instruments have little to say concerning non-nationals without legal residence: only the International
Convention on the Protection of the Rights of All Migrant Workers and Their Families (ICRMW)
extends basic human rights to undocumented aliens.
ICRMW, as of October 2008, had been ratified by no EU country. The Convention identifies some
core rights that apply to all aliens, with an extended set of rights for those legally present. In this, it
continues the approach taken in ILO Convention 143 (see below). The core rights include such things
as protection of personal property rights (Art. 15), basic legal and personal security rights, including
the right to trial (Art. 16), rights of liberty and legal treatment upon its deprivation (Art. 17), basic
legal rights (Arts. 18-21), conditions of lawful expulsion (Art. 22), employment and social security
rights (Arts. 25-28), and the rights of children of migrants (Arts. 29-30). On the other hand, Art. 35
expressly precludes that the Convention implies any “regularization of the situation of migrant
workers or members of their families who are non-documented or in an irregular situation or any right
to such regularization of their situation”. Furthermore, Art. 69 does have some specific directions to
states on how to deal with irregular migrants, amounting to the policy choice ‘regularise or expel’:
Article 69
1. States Parties shall, when there are migrant workers and members of their families within their
territory in an irregular situation, take appropriate measures to ensure that such a situation does
not persist.
2. Whenever States Parties concerned consider the possibility of regularizing the situation of such
persons in accordance with applicable national legislation and bilateral or multilateral agreements,
appropriate account shall be taken of the circumstances of their entry, the duration of their stay in
the States of employment and other relevant considerations, in particular those relating to their
family situation.
In an extended analysis of the obstacles to ratification of ICRMW, 274 the authors note specific national
objections to the rights accorded to irregular migrants in the convention. Particularly, Italy would be
obliged to deliver the substantial rights already guaranteed in other legislation (but largely
unenforceable); the UK does not accept the principle of equal treatment of irregular workers (their
contracts are viewed as illegal and unenforceable); the idea of rights for irregular immigrants is a
taboo in Germany’s public discourse; Poland and the UK consider that the Convention would be a
‘pull-factor’ for illegal migration flows; Spain is concerned about public reaction to announced rights
274 MacDonald, E. and Cholewinski, R. (2007): The Migrant Workers Convention in Europe, Paris: UNESCO
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